Is democracy in danger?

The director of the Centre for Bogus Investigations (CBI), Alok Verma, has the ignominy of being the first chief to be sacked soon after being reinstated, after which, agency’s special court in Mumbai acquitted 22 accused for alleged involvement in the killing of gangster Sohrabuddin and his wife Kauser Bi on November 26, 2005. After resuming, the CBI chief promptly cancelled the transfers of his loyalists, although the apex court said he should not take any major policy decision.

In 2018, the Bombay high court quashed an order of special CBI Judge S J Sharma preventing the media from reporting what transpired in his court. Undaunted, the judge has indicted the CBI for implicating BJP bigwigs in a pre-meditated script — although it was Sohrabuddin’s brother Rubbaddin Shaikh and Prajapati’s mother who sought the case be transferred to the CBI without the Congress being involved.

Like the order transferring the CBI chief, Judge Sharma’s judgment is riddled with self-contradictions. His main thesis is that there is no evidence to link the accused with the murder but contradicts himself by stating the 22 (junior police officers) accused were discharging their duties and must be acquitted without sanction to prosecute them. ‘If they were discharging their official duties’ implies there was evidence to link the 22 accused with the murder of Sohrabuddin. Only 210 out of over 700 witnesses were examined while 92 were declared hostile.

Among the witnesses who were dropped were the personal assistants of Amit Shah, the first investigating officer who had arrested D G Vanzara one of the main accused and also then additional director general of Gujarat CID G C Raiger whose testimonies were important.  For those who came in late, this judgment is the culmination of a drama which started when Judge J T Utpat was transferred to Pune in June 2014.

The second judge Anup Loya died in mysterious circumstances on December 1, 2014 resulting in PILs being filed before the apex court which dismissed them on the ground that the versions of Justices Bhushan Gavai and Sunil Shukre of the Bombay high court who accompanied Judge Loya could not be disbelieved. But these judges did not testify under oath. Later, M B Gosavi who was the third judge to discharge Amit Shah was replaced by Judge S J Sharma.

Former chief justice of the Bombay high court, Mohit Shah, was accused by Judge Loya’s family of allegedly trying to pressurise him to discharge Amit Shah but later, the dead judge’s son retracted and asked to be “left alone”. Be that as it may, Judge Sharma was given two extensions to deliver his judgment. The CBI took over the probe from the Gujarat CID in 2010. Initially, 38 accused were named in the case, but 16 were discharged, leaving 22 junior police officers to face a trial.

Between 2014 and 2017, the then Gujarat home minister Amit Shah, the then Rajasthan home minister Gulab Chand Kataria, director general of police D G Vanzara, the then DIG, (ATS) Ahmedabad, Dinesh MN, then SP, Udaipur and Rajkumar Pandiyan, then SP (ATS), Ahmedabad were all discharged. The case was first heard by Judge JT Utpat, then Judge BH Loya, after his death MB Gosavi, and later S J Sharma.

To return to the judgment, Sharma alleged the CBI used a “premeditated theory” and “a script intended to anyhow implicate political leaders” in the three murders. He also gave a clean chit to BJP president Amit Shah.“My predecessor has, while passing an order of discharge in the application of accused number 16 (Amit Shah) clearly recorded the investigation was politically motivated. Having given my dispassionate consideration to the entire material placed before me and having examined each of the witnesses and the evidence closely, I have no hesitation in recording that the premier investigating agency like (the) CBI had before it a premeditated theory and a script intended to anyhow implicate political leaders.

And the agency thereafter merely did what was required to reach that goal, rather than conducting an investigation in accordance with law.” These observations contradict the evidence because the CBI failed to produce vital witnesses before the court which nullifies the judge’s version that the CBI wanted to implicate (BJP) leaders when the evidence reveals the exact opposite. Judge Sharma declared: “Sohrabuddin died due to bullet injuries that are also substantiated by the post-mortem report but whether these accused were authors of the said crime could not be substantiated. There is circumstantial evidence but no substantial evidence…”

The judge ignored that in a case of this sort, section 106 of the Indian Evidence Act places the burden of proving how and why Sohrabuddin was killed squarely on those who allegedly shot him whether in self-defence or otherwise. It is they alone who knew what happened on that fateful night. But the biggest self-contradiction in the judgment is from paras 1 to 243 where Judge Sharma records there is no evidence to connect the 22 accused with the murder of Sohrabuddin but contradicts himself from paras 244 to 249 where he dissects the law relating to sanction for prosecution of the accused. In paragraph 260 he contradicts himself yet again when he declares:

“The foregoing discussion makes it clear that the 22 accused who are police officials and who were found doing the act and deed in discharge of their official duty, are entitled for the benefit as contemplated under Section 197 of Code of Criminal Procedure… In absence of the sanction the accused are entitled for acquittal.” If they were discharging their duty, this implies there is evidence that the 21 accused were implicated in the alleged crime against Sohrabuddin, his wife Kauser Bi and Tulsiram Prajapati.

The prophetic words of former SC judges Jasti Chelameswar and Kurien Joseph that the former CJI was being controlled by an external agency and that democracy was in danger needs to be kept in mind while appealing against the acquittal of these 22 accused. After all, the allotment of the PILs to a hand-picked bench of the CJI was one of the reasons for the judges’ historic press conference on January 12, 2018.

Olav Albuquerque is a journalist-turned-lawyer of the Bombay High Court.

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