REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1503 OF 2012
[ARISING OUT OF SLP (CRIMINAL) NO.9003 OF 2010]
Central Bureau of Investigation … Appellant
Versus
Amitbhai Anil Chandra Shah and Another … Respondents
WITH
TRANSFER PETITION (CRIMINAL) NO.44 OF 2011
Central Bureau of Investigation … Petitioner
Versus
Dahyaji Gobarji Vanzara & Others … Respondents
J U D G M E N T
Aftab Alam, J.
1. Leave granted.
2. This order deals with an appeal and a transfer petition filed by the
Central Bureau of Investigation (the CBI). The appeal (arising from SLP
(Criminal) No.9003 of 2010) is directed against the order dated October 29,
2010 passed by the Gujarat High Court in Criminal Miscellaneous
No.12240/2010 granting bail to Amitbhai Anil Chandra Shah (respondent no.1
in this appeal and accused No.16 in the transfer petition) in case No.RC
BS1/S/2010/0004 (Criminal Case No.5 of 2010) (“the Sohrabuddin case”), who
until his arrest in the case was the minister of State for Home in the
State of Gujarat. In the transfer petition, a prayer is made to transfer
the Sohrabuddin case outside the State of Gujarat for trial. Both the
appeal and the transfer petition are the result of the developments
following the orders passed by the Court in Writ Petition (Criminal) No.6
of 2007 (Rubabbuddin Sheikh v. State of Gujarat & Others) seeking a
direction for the investigation of the case concerning the killing of
Sohrabuddin and the disappearance of his wife, Kausarbi by the CBI. In
order to put the two issues in context, therefore, it is necessary to
slightly go back into the facts of that case and see how the matter
unfolded before it came to the present stage.
3. This Court by order dated January 12, 2010[1] passed in the aforesaid
writ petition directed the CBI to investigate the case relating to the
killings of Sohrabuddin and his wife Kausarbi. The order came to be passed
after the proceedings in this Court in regard to those killings had gone on
for over four years, initially on the basis of two letter-petitions and
subsequently under the aforesaid writ petition. At the beginning, the State
of Gujarat stoutly and vociferously denied that the encounter in which
Sohrabuddin was killed was stage-managed and it was only later that it came
around to accept that it was actually so and his wife, Kausarbi too was
killed while she was in illegal police custody and her body was disposed of
in a manner as to make it untraceable. Some sort of an investigation was
made by the Gujarat Police and a charge-sheet was submitted on July 16,
2007 against thirteen (13) persons who were members of the Anti Terrorist
Squad, Gujarat Police and the Special Task Force, Rajasthan Police. On
behalf of the writ-petitioner (Rubabbuddin Sheikh, the brother of the slain
Sohrabuddin), however, it was submitted that the charge-sheet was deceptive
and was designed more to cover up rather than uncover the entire conspiracy
behind the murder of Sohrabuddin and his wife. It was pointed out that the
Gujarat Police had completely ignored the killing of Tulsiram Prajapati in
a similar police encounter one year after the killing of Sohrabuddin who
was killed simply because he was a witness to the abduction of Sohrabuddin
and his wife by the police party. On September 30, 2008 the Court was
informed that following the submission of the charge-sheet, even as the
matter was under the scrutiny of this Court, the case was hurriedly
committed and the trial court had fixed the hearing on the charge on a day
to day basis. The Court on that date stayed further proceedings in Sessions
Case no. 256 of 2007 and directed for the records of the case to be put in
the safe custody of the Registrar General of the Gujarat High Court.
4. In further proceedings before this Court, the State of Gujarat took
the stand that all that was required to be done was done in the matter and
there was nothing more for this Court to do. It was argued on behalf of the
State that with the submission of the charge-sheet this Court’s power and
authority to monitor the investigation came to an end and the case came
under the exclusive jurisdiction of the magistrate/trial court who would
proceed further on the basis of the charge-sheet submitted by the police.
5. This Court felt otherwise. It appeared to the Court that there were a
number of aspects of the case, including the killing of Tulsiram Prajapati
that were not addressed at all by the Gujarat Police. The State of Gujarat,
however, continued to maintain that the killing of Tulsiram Prajapati in
the police encounter had no connection with the killings of Sohrabuddin and
his wife. That being the position taken by the State it was but natural for
the State police not to investigate any linkages between the killings of
Sohrabuddin and his wife on the one hand and the killing of Tulsiram
Prajapati on the other.
6. Among the number of reasons that weighed with the Court to ask the
CBI to investigate into the killings of Sohrabuddin and his wife, even
after the submission of charge-sheet by the Gujarat Police was the
trenchant refusal by the State of Gujarat and the State police to see any
connection between the killings of Sohrabuddin and his wife and the killing
of Tulsiram Prajapati. In the order dated January 12, 2010 by which the
investigation of the case was entrusted to the CBI, the Court commented
upon the persistent effort to disconnect the Prajapati encounter from the
killings of Sohrabuddin and his wife as under:
“From the charge-sheet, it also appears that the third person
was ‘sent somewhere’. However, it appears that the literal
translation of the charge-sheet in Gujarati would mean that he
was ‘anyhow made to disappear’. From this, we are also satisfied
that an attempt was made by the investigating agency of the
State of Gujarat to mislead the Court.” (paragraph 63 of the
order)
“The possibility of the third person being Tulsiram Prajapati
cannot be ruled out, although the police authorities or the
State had made all possible efforts to show that it was not
Tulsiram. In our view, the fact surrounding his death evokes
strong suspicion that a deliberate attempt was made to destroy a
human witness.” (paragraph 65 of the order)
“No justification can be found for the Investigating Officer Ms.
Johri walking out of the investigation with respect to Tulsiram
Prajapati’s death without even informing this Court.” (paragraph
66 of the order)
(emphasis added)
7. Further, recounting the many deficiencies in the investigation by the
Gujarat Police, this Court also noticed its omission to analyse the call
details of the accused. The Court observed:
“So far as the call records are concerned, it would be evident
from the same that they had not been analysed properly,
particularly the call data relating to three senior police
officers either in relation to Sohrabuddin’s case or in
Prajapati’s case.” (paragraph 66 of the order)
8. In light of the above and a number of other acts of omission and
commission as appearing from the eight Action Taken Reports (submitted in
course of hearing of the writ petition) and the Gujarat Police charge-
sheet, this Court asked the CBI to investigate the killings of Sohrabuddin
and his wife Kausarbi, giving the following directions:
“82. Accordingly, in the facts and circumstances even at this stage
the police authorities of the State are directed to hand over the
records of the present case to the CBI Authorities within a fortnight
from this date and thereafter the CBI Authorities shall take up the
investigation and complete the same within six months from the date of
taking over the investigation from the State police authorities. The
CBI Authorities shall investigate all aspects of the case relating to
the killing of Sohrabuddin and his wife Kausarbi including the alleged
possibility of a larger conspiracy. The report of the CBI Authorities
shall be filed in this Court when this Court will pass further
necessary orders in accordance with the said report, if necessary. We
expect that the police authorities of Gujarat, Andhra Pradesh and
Rajasthan shall cooperate with the CBI Authorities in conducting the
investigation properly and in an appropriate manner.”
(emphasis added)
9. It may here be noted that another writ petition [being Writ Petition
(Criminal) No.115 of 2007] filed by Narmada Bai, the mother of Tulsiram
Prajapati, relating to the encounter killing of her son was till that stage
being heard along with the Sohrabuddin case (Writ Petition (Criminal) No.6
of 2007). But in the concluding part of the order, in regard to Prajapati’s
case it was directed as follows:
“Writ Petition (Crl.) No.115 of 2007
84. So far as WP (Crl.) No.115 of 2007 is concerned, let this
matter be listed after eight weeks before an appropriate Bench.”
10. As directed by this Court, the CBI took up the investigation into the
Sohrabuddin case after instituting a fresh FIR on February 1, 2010. In the
call records of the accused that had not been worked out in the hands of
Gujarat Police, the CBI claims to have found a valuable source of important
clues. On the basis of the call records, the statements of witnesses and
other materials collected by it, the CBI claims that it has unearthed a
conspiracy of much larger proportions. It submitted a charge-sheet on July
23, 2010 in which, in addition to the thirteen accused named in the charge-
sheet of the Gujarat Police, another 6 persons were also named as accused,
being part of the larger conspiracy. In the charge-sheet submitted by the
CBI, one of the accused is Amitbhai Shah, who till then was the minister of
State for Home in the State Government. The accusation against Amitbhai
Shah is that he was the lynchpin of the conspiracy.
11. Following the submission of the charge-sheet by the CBI, on July 25,
2010, Amitbhai Shah was arrested and was sent to judicial custody.
12. As noted above, this Court had asked the CBI to investigate all
aspects of the case relating to the killings of Sohrabuddin and his wife
Kausarbi, including the possibility of a larger conspiracy. The CBI,
therefore, felt that it was both authorized and under the obligation to
investigate the Prajapati case as well, as it prima facie appeared to be
integrally connected with the Sohrabuddin case. The Gujarat Police,
however, would neither hand over the records of the Prajapati case to the
CBI nor allow it to make any independent investigation in the Prajapati
case. On the contrary, the Gujarat Police purported to complete its
investigation and, like the case of Sohrabuddin, rather hurriedly filed the
charge-sheet in the case on July 30, 2010, followed by a supplementary
charge-sheet on July 31, 2010, before the Judicial Magistrate, First Class,
Danta, Banaskantha District. The magistrate, equally quickly committed the
case to the court of Sessions in two days’ time on August 2, 2010 even
without a proper compliance with the provisions of section 207 of the Code
of Criminal Procedure.
13. According to the charge-sheet, Prajapati was indeed killed in a fake
encounter but there was nothing more to it than that. There was no attempt
to investigate any larger conspiracy or to try to connect it with the
Sohrabuddin case. On the other hand, the whole effort was to present it as
a separate case, quite unconnected with the case of Sohrabuddin.
14. In the meanwhile, Amitbhai Shah was granted bail by the Gujarat High
Court, by order dated October 29, 2010 passed in Criminal Miscellaneous
Application No.12240 of 2010. Against the order passed by the High Court,
the CBI immediately came to this Court in SLP (Crl.) No.9003 of 2010,
giving rise to the present appeal seeking cancellation of bail granted to
Amitbhai Shah. On October 30, 2010, notices were issued to respondent nos.1
and 2, i.e. Amitbhai Shah and the State of Gujarat. At the time of issuance
of notice, on the prayer made on behalf of the CBI to stay the operation of
the bail order passed by the High Court on the ground that once released on
bail the accused would tamper with prosecution evidence, it was stated on
behalf of respondent no.1 that he would leave Gujarat the following morning
and would stay out of the State till further orders that may be passed by
this Court.
15. On November 25, 2010, the CBI submitted a copy of its final report
before this Court, copies of which were directed to be given to the
parties.
16. On December 14, 2010, it was brought to the notice of the Court that
the Prajapati case had so far not been listed before the Bench to which it
was assigned and, consequently, no order was passed in that case by the
Court. Nevertheless, the trial court was proceeding to start the trial of
the accused on the basis of the charge-sheet submitted by the Gujarat
Police. A grievance was made that in case the trial court was allowed to
proceed, it might be too late by the time any order is passed by this Court
in the Prajapati case. At that stage, Mr. Tushar Mehta, Sr. AAG appearing
for the State of Gujarat fairly stated that no further proceeding would
take place in the case arising from the charge-sheet submitted by the
Gujarat Police in the Prajapati case until this Court passed some orders on
the status report submitted by the CBI in this case and the Writ Petition
(Crl.) No.115 of 2007 was taken up by the Court.
17. On January 13, 2011, the CBI filed the present transfer petition
(Transfer Petition (Criminal) No.44 of 2011) for transfer of the
Sohrabuddin case bearing Special Case No.5 of 2010 pending in the court of
Additional Chief Metropolitan Magistrate, CBI, Mirzapur Ahmedabad, titled
“CBI v. D.G. Vanzara & Ors” to the CBI court in Mumbai or any other State
and for a further direction for the constitution of a special court. This,
in short, is about the proceedings of the Sohrabuddin case before this
Court.
18. At this point, we may also take a brief look at the Prajapati case,
Writ Petition (Criminal) No.115 of 2007 before this Court. It is
interesting to note that in the first counter affidavit filed in the
Prajapati case, the State took the stand that the petition filed under
Article 32 of the Constitution was not maintainable because a case was
already registered with the police according to which the son of the writ
petitioner was killed in a police encounter. It was contended that the writ
petition filed in the Sohrabuddin case was for a writ of habeas corpus and
it was for that reason alone that it was entertained by this Court. There
was no such angle in the present case. In the counter affidavit it was
further stated that Tulsiram Prajapati was a dreaded criminal, involved in
21 criminal cases. As to the manner of his death, the counter affidavit
reiterated and fully supported the police version as stated in the two FIRs
relating to his alleged escape from the police custody while being taken
back after court remand and his death in a police encounter on the
following day. It was pointedly denied that Tulsiram Prajapati was a
witness in the Sohrabuddin case. It was asserted that there was no
connection in the two cases.
19. However, by the time the writ petition came up for hearing, another
affidavit was filed on behalf of State of Gujarat on August 19, 2010. In
this affidavit it was conceded that Tulsiram Prajapati was killed in a fake
encounter. It was, however, submitted that the State, CID (Crime) had
already filed a charge-sheet in the case. It was further the stand of the
State that the encounter killing of Tulsiram Prajapati had nothing to do
with the killings of Sohrabuddin and Kausarbi.
20. It is, thus, to be seen that the Prajapati case also followed exactly
the same pattern as the case of Sohrabuddin. Initially, there was a
complete denial by the State that he was killed in any kind of a fake
encounter. But, when it became impossible to deny that the story of the
encounter was false, an investigation was swiftly made by the Gujarat
Police and charge-sheet was submitted. On the basis of the charge-sheet, on
the one hand an attempt was made to proceed with and conclude the trial
proceedings as quickly as possible and on the other hand this Court was
told that after the submission of the charge-sheet it was denuded of the
authority to direct any further investigation. There was, thus, clearly an
attempt not to allow the full facts to come to light in connection with the
two cases.
21. Further, in the Prajapati case the State insisted till the end that
though he too was killed in a fake encounter there was no connection
between his killing and the killings of Sohrabuddin and his wife, Kausarbi.
22. The Prajapati case came up before the Court and it was allowed by
judgment and order dated April 8, 2011[2]. The Court debunked the
contention that there was no connection between the killings of Sohrabuddin
and Kausarbi and the killing of Tulsiram Prajapati (see paragraphs 47 to 60
of the judgment) and also rejected the claim of the State Government that
the investigation made in his case was complete and satisfactory. It
directed the State Government to handover the investigation of the
Prajapati case as well, to the CBI.
23. In pursuance of the Court’s direction, the CBI investigated the
Prajapati case and even as the hearing on the present appeal and the
transfer petition was underway submitted the charge-sheet on September 4,
2012. In the Prajapati charge-sheet Amitbhai Shah and a number of very
senior police officers of the State are cited as accused.
24. The facts and circumstances noted above, very briefly, provide the
background in which the case of the CBI for cancelling the bail granted to
Amitbhai Shah (accused No.16 in transfer petition and respondent No.1 in
criminal appeal) in Sohrabuddin case and transferring that case for trial
outside Gujarat is to be considered.
25. Mr. Tankha, senior advocate, appearing for the CBI made a strong plea
for cancelling the bail of Amitbhai Shah and transferring the Sohrabuddin
case outside Gujarat. Mr. Ram Jethmalani, learned senior advocate,
appearing on behalf of Amitbhai Shah with equal vehemence opposed the
prayer for cancellation of his bail. However, insofar as the transfer of
the case is concerned, at the end of the hearing he stated that Amitbhai
Shah was prepared to face the trial anywhere and he would, therefore,
accept the transfer of the case without demur. The transfer petition was,
however, opposed by the State and the other accused, namely, Dahyaji
Gobarji Vanzara (respondent No.1 in the transfer petition), Rajkumar
Pandyan (respondent No.2 in the transfer petition), Naransinh Harisinh
Dabhi (respondent No.5 in the transfer petition) Balkrishan Lalkrishna
Chaubey (respondent No.6 in the transfer petition) and Narendra Kantilal
Amin (respondent No.12 in the transfer petition) and their respective
counsel were heard by the Court at length.
26. The submissions made by the CBI in support of the prayer for the
cancellation of bail and the transfer of the case were substantially the
same. It was submitted on its behalf that Amitbhai Shah presided over an
extortion racket. In his capacity as the minister for Home, he was in a
position to place his henchmen, top ranking policemen at positions where
they could sub-serve and safeguard his interests. He was part of the
larger conspiracy to kill Sohrabuddin and later on his wife and finally
Tulsiram Prajapati, as he was a witness to the abduction of Sohrabuddin and
his wife by the police party. Taking advantage of his position as the
minister, he constantly obstructed any proper investigation into the
killings of Sohrabuddin and Kausarbi even when the matter came to the
notice of this Court and this Court issued directions for a thorough
investigation into their killings. It was at his behest and under his
pressure that the top ranking police officers tried to cover up all signs
of his involvement in the killings of Sohrabuddin, Kausarbi and Tulsiram
Prajapati and systematically suppressed any honest investigation into those
cases and even tried to mislead this Court. Even after the investigation
was handed over to the CBI, he made things very difficult for them and the
CBI was able to do the investigation against great odds. It is further
submitted that the phone records pertaining to the periods when Sohrabuddin
and his wife were abducted, Sohrabuddin was killed and his wife was killed
and her body was disposed of by burning and of the later period at the time
of killing of Prajapati showed Amitbhai Shah in regular touch with the
policemen, accused in the case, who were actually executing the killings
and the other allied offences. There was no reason for the minister for
State of Home to speak directly on phone to police officers, far below him
in the chain of command and the explanation given on his behalf in regard
to those phone calls was on the face of it false and unacceptable. Apart
from the phone records, there were many other materials and
incontrovertible circumstances to establish the charges against Amitbhai
Shah.
27. It was submitted that his release on bail and permission to freely
stay in Gujarat would greatly jeopardize the efforts of the CBI to bring
home the charges against him. Even after his arrest and while in jail, he
had sufficient resources and influence to tamper with the evidence and to
intimidate the prosecution witnesses. It was contended that allowing the
appellant to enjoy the privilege of bail and further to let him stay in
Gujarat would have a very debilitating effect on the prosecution case. It
was further contended that apart from Amitbhai Shah, some of the other
accused in the case were senior police officers with great clout and
resourcefulness and they were fully capable of subverting a fair trial in
Gujarat.
28. Mr. Ram Jethmalani, senior advocate appearing for Amitbhai Shah
submitted, with equal force, that the allegations made by the CBI against
his client were no more than a pack of lies. He submitted that the
direction of this Court handing over the investigation of the Sohrabuddin
case to the CBI gave a handle to the Central Government to wreck political
vendetta on the democratically elected Government in Gujarat. He further
submitted that the CBI was being used in this case to frame up his client
in a completely false case. He contended that the Gujarat Police had made a
proper investigation but the CBI put the charge-sheet submitted by the
Gujarat Police in this case upside-down. It forged and fabricated
evidences against Amitbhai Shah and set-up an entirely false case against
him. He also submitted that the High Court had rightly granted bail to
Amitbhai Shah and there was no reason for this Court to cancel it.
29. At this stage, we do not wish to express any opinion on the
submissions made from the two sides lest any remark made in the order might
cause prejudice to either the accused or the prosecution in the trial.
However, on hearing Mr. Tankha for the CBI, Mr. Ram Jethmalani, senior
advocate for Amitbhai Shah, Mr. Huzefa Ahmadi, for the writ petitioner
Rubabbuddin Sheikh and Mr. Gopal Subramanium, learned Amicus Curiae, we are
not inclined to cancel the bail granted to Amitbhai Shah about two years
ago. Had it been an application for grant of bail to Amitbhai Shah, it is
hard to say what view the Court might have taken but the considerations for
cancellation of bail granted by the High Court are materially different and
in this case we feel reluctant to deprive Amitbhai Shah of the privilege
granted to him by the High Court.
30. However, the apprehension expressed by the CBI that Amitbhai Shah may
misuse the freedom and try to subvert the prosecution cannot be lightly
brushed aside. We, accordingly, direct that Amitbhai Shah (respondent No.1
in criminal appeal) shall give an undertaking in writing to the trial court
that he would not commit any breach of the conditions of the bail bond and
would not try to influence any witnesses or tamper with the prosecution
evidence in any manner. We further direct that Amitbhai Shah will report to
the CBI office every alternate Saturday at 11.00 AM. It is further made
clear that the grant of bail to Amitbhai Shah in the Sohrabuddin case shall
have no effect in the Prajapati case and in that case whether Amitbhai Shah
is to be kept in judicial custody or granted bail would be decided by the
court on the basis of the materials on record of that case and without
taking into consideration the grant of bail to him in the Sohrabuddin case.
31. The grant of bail to Amitbhai Shah in Sohrabuddin case shall be no
consideration for grant of bail to the other accused in that case and the
prayer for bail by the other accused in the Sohrabuddin case shall be
considered on its own merits.
32. In case Amitbhai Shah commits any breach of the conditions of the
bail bond or the undertaking given to the court, as directed above, it will
be open to the CBI to move the trial court for cancellation of his bail. In
that case, if the allegations pertain to the period posterior to this
order, the trial court shall examine the matter carefully and take an
independent decision without being influenced by this order declining to
cancel the bail granted to him.
33. Coming now to the question of transferring the case outside Gujarat,
the manner in which the Sohrabuddin case has proceeded before this Court in
itself, without anything else, makes out a strong case for transferring the
trial of the case outside the State. It is also noted above that Mr.
Jethmalani made the declaration that his client is prepared to face the
trial at any place and wherever the trial is held he would expose the
falsity of the CBI case. However, the State and a number of other accused
were strongly opposed to the transfer of the case outside the State for
trial. On behalf of CBI, on the other hand, it was contended that there was
hardly any hope of any fair trial of the case in that State.
34. At this stage, we may note an episode in the proceedings before the
magistrate that is cited by the CBI as one of the grounds in support of its
prayer for the transfer of the case outside the State. On July 26, 2010,
one of the accused N.K. Amin filed a petition before the ACJM under section
306 of the Code of Criminal Procedure for grant of pardon and for being
considered as an approver. In the application he stated that he desired to
give statement/evidence about the facts within his knowledge concerning the
offence for which he was being prosecuted and further that he was ready and
willing to give his statement under section 164(2) [sic (5)] so as to
become an approver in the case. The magistrate did not pass any order on
that application but strangely gave its notice to other accused in the
case. The other accused took time to file their responses until the
magistrate referred the matter to the High Court under section 395 of the
Code of Criminal Procedure after almost five weeks of the filing of the
petition. The reference was eventually dismissed by the High Court as
incompetent. In the meanwhile, on August 21, 2010, Smt. Jayshree Amin, the
wife of N.K. Amin filed a complaint to the CBI alleging threats to her
husband’s life in Sabarmati jail. The CBI duly forwarded the letter
received from Smt. Jayshree Amin to the ACJM but no action was taken on
that letter. N.K. Amin finally filed a petition on January 18, 2011
requesting the ACJM not to pass any order on his application under section
306(Exh.8) and section 164(5) (Ex.49). In this petition, he made the
complaint that on his application under section 306 the court did not pass
any order but delayed the matter by giving the other accused time for
filing their objection. As a result there was grave threat to his life in
the jail. In any event, after he received a copy of the charge-sheet filed
by the CBI and found that in that charge-sheet three other policemen
(namely, Ajay Parmar, Santaram Chandrabhan Sharma and Vijay Arjunbhai
Rathod) were not arrayed as accused, he had, for the time being, decided
not to make any statement before the court keeping his options open after
the case is committed to the court of sessions.
35. On behalf of the CBI, it is submitted that on receiving the
application from N.K. Amin the learned magistrate adopted a procedure
unknown to law but that gave sufficient time to the other accused to win
back N.K. Amin over to their side by giving him intimidations and/or
inducements.
36. In the counter affidavit filed on behalf of the State and N.K. Amin a
number of accusations are made against the CBI on this issue. It is evident
that since filing the application for being made an approver in the case,
N. K. Amin has changed his mind (to which he is fully entitled). But the
fact of the matter is that both the petitions dated July 26, 2010 and
January 18, 2011 filed by him before the ACJM and the orders passed by the
learned magistrate on those petitions are part of the judicial record and
cannot be simply denied away.
37. Besides the above there are other instances as would appear from the
proceedings in the Sohrabuddin case when this Court had reasons not to feel
entirely happy at the way the courts below dealt with the matter.
38. On hearing Mr. Tankha, appearing for the CBI, Mr. Ahmadi representing
the writ petitioner, Mr. Tushar Mehta appearing on behalf of the State of
Gujarat, and the counsel appearing for the different accused and Mr.
Subramanium, the learned amicus, and on a careful consideration of all the
material facts and circumstances as also having regard to the past
experience in the Sohrabuddin matter, we are convinced that in order to
preserve the integrity of the trial it is necessary to shift it outside the
State.
39. The decision to transfer the case is not a reflection on the State
judiciary and it is made clear that this Court reposes full trust in the
judiciary of the State. As a matter of fact, the decision to transfer the
case outside the State is intended to save the trial court in the State
from undue stress and to avoid any possible misgivings in the minds of the
ordinary people about the case getting a fair trial in the State.
40. In Nahar Singh Yadav and another v. Union of India and others[3],
this Court on a consideration of the earlier decisions laid down certain
conditions which may require a case to be transferred outside the State.
In paragraph 29 of the decision it observed as follows-
“Thus, although no rigid and inflexible rule or test could be laid
down to decide whether or not power under Section 406 CrPC should be
exercised, it is manifest from a bare reading of sub-sections (2) and
(3) of the said section and on an analysis of the decisions of this
Court that an order of transfer of trial is not to be passed as a
matter of routine or merely because an interested party has expressed
some apprehension about the proper conduct of a trial. This power has
to be exercised cautiously and in exceptional situations, where it
becomes necessary to do so to provide credibility to the trial. Some
of the broad factors which could be kept in mind while considering an
application for transfer of the trial are:
(i) when it appears that the State machinery or prosecution is
acting hand in glove with the accused, and there is likelihood of
miscarriage of justice due to the lackadaisical attitude of the
prosecution;
(ii) when there is material to show that the accused may influence
the prosecution witnesses or cause physical harm to the complainant;
(iii) comparative inconvenience and hardships likely to be caused to
the accused, the complainant/the prosecution and the witnesses,
besides the burden to be borne by the State exchequer in making
payment of traveling and other expenses of the official and non-
official witnesses;
(iv) a communally surcharged atmosphere, indicating some proof of
inability of holding fair and impartial trial because of the
accusations made and the nature of the crime committed by the accused;
and
(v) existence of some material from which it can be inferred that
some persons are so hostile that they are interfering or are likely to
interfere either directly or indirectly with the course of justice.”
We find that the conditions at serial numbers (1), (2), (3) and (5) are
squarely attracted in this case.
41. In another decision in Ravindra Pal Singh v. Santosh Kumar Jaiswal
and others[4], this Court directed for transfer of the case outside State
because some of the accused in a case of fake encounter were policemen.
The case in hand has far more stronger reasons for being transferred
outside the State. We, accordingly, direct for the transfer of Special
Case No.05/2010 pending in the court of Additional Chief Metropolitan
Magistrate, CBI, Court Room No.2, Mirzapur, Ahmedabad titled CBI versus
D.G. Vanzara & Others to the court of CBI, Bombay. The Registrar General of
the Gujarat High Court is directed to collect the entire record of the case
from the court of Additional Chief Metropolitan Magistrate, CBI, Room No.2,
Mirzapur, Ahmedabad and to transmit it to the Registry of the Bombay High
Court from where it would be sent to a CBI court as may be decided by the
Administrative Committee of the High Court. The Administrative Committee
would assign the case to a court where the trial may be concluded
judiciously, in accordance with law, and without any delay. The
Administrative Committee would also ensure that the trial should be
conducted from beginning to end by the same officer.
42. On behalf of the CBI, it was stated that they need six weeks’ further
time to complete the investigation. They are directed to positively
complete the investigation within six weeks and submit the final charge-
sheet before the transferee court in Mumbai.
43. The Sohrabuddin case stands transferred to Mumbai by this order. It
is the case of the CBI that the case of Sohrabuddin and the case of
Tulsiram Prajapati are closely connected and in order to avoid any
miscarriage of justice, both the cases can only be tried before the same
court. It will, therefore, be open to the CBI to make an application for
transfer of the Tulsiram Prajapati case also to the same court where the
Sohrabuddin case is transferred. In case, such an application is filed,
the court will pass appropriate orders, in accordance with law, after
hearing all concerned.
44. In the result, the appeal is dismissed but the transfer petition is
allowed.
…………………………….J.
(Aftab Alam)
…………………………….J.
(Ranjana Prakash Desai)
New Delhi;
September 27, 2012.
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[1] (2010) 2 SCC 200
[2] (2011) 5 SCC 79
[3] (2011) 1 SCC 307
[4] (2011) 4 SCC 746
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