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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

PUBLIC INTEREST LITIGATION NO. OF 2018

IN THE MATTER OF ARTICLE 226

OF THE CONSTITUTION OF

INDIA;

AND

IN THE MATTER OF ARTICLE 14

OF THE CONSTITUTION OF

INDIA;

AND

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IN THE MATTER OF ILLEGAL,

ARBITRARY AND MALAFIDE

INACTION ON THE PART OF THE

RESPONDENT NO. 1 IN

CHALLENGING ORDER DATED

30/12/2014 PASSED BY SPL.

JUDGE, CBI IN DISCHARGE

APPLICATION (EXHIBIT-232) IN

SESSIONS CASE NOS. 177/2013,

178/2013, 577/2013 & 312/2014.

Bombay Lawyers’ Association,

a body registered under the provisions

of the Society Registration Act, 1860,

having its office at

2A, Ground Floor, Commerce House,

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140, Nagindas Master Road, Fort,

Mumbai-400001

PAN No: AACAB1244J

Email: mail@blaindia.org

Tel No.: 22690016/17 ... Petitioner

Versus

1. Central Bureau of Investigation

BI, 13th Floor, Plot No. C-35A,

'G' Block, Bandra Kurla Complex (BKC),

Near MTNL Exchange, Bandra (East),

Mumbai 400 098

Through its Joint Secretary, Zone-I

2. Administrative Committee of

the Bombay High Court

Through The Registrar General

High Court Extension Building,

Mumbai – 400 032 ... Respondents

TO,

THE HON’BLE CHIEF JUSTICE

AND COMPANION HON’BLE JUDGES

OF BOMBAY HIGH COURT

OF JUDICATURE AT BOMBAY

HUMBLE PETITION OF THE

PETITIONERS ABOVENAMED

MOST RESPECTFULLY SHEWETH:

1. That the Petitioner states the Petitioner is a body of advocates and

it is registered under the Societies Registration Act, 1860. The

Respondent Nos. 1 is the Central Bureau of Investigation (“CBI”),

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the prosecuting agency in Sessions Case Nos. 177/2013, 178/2013,

577/2013, 312/2014 before the Special Judge, CBI, Mumbai.

Respondent No. 2 is the Registrar General of this Hon’ble Court.

Both the Respondents are ‘State’ within the meaning of Article 12

of the Constitution.

2. That the instant Petition is being filed challenging illegal, arbitrary

and malafide inaction of the Respondent No. 1 in challenging the

Judgment and Order dated 30/12/2014 passed by the Special Judge,

CBI, Mumbai in Discharge Application (Exhibit-232) filed by

Amit Anilchandra Shah in Sessions Case Nos. 177/2013, 178/2013,

577/2013 and 312/2014. This Petition also challenges the decision

of the Administrative Committee of this Hon’ble Court of

transferring the Special Judge, CBI, Mumbai Shri J.T. Utpat whom

the said cases were originally assigned, in contravention of Order

dated 27/09/2012 passed by Hon’ble Supreme Court. The

Respondent No.1 is the premier investigating agency of India. It

has public duty to observe rule of law in its action which it has

miserably failed. The present petition is being filed to protect

public trust and confidence in the Respondent No. 1. Hence, this

Petition may be treated as Public Interest Litigation.

3. The Petitioner states that it is established by a group of advocates

practicing at Bombay High Court with the primary purpose to

undertake activities facilitating improvement in the quality of legal

services. It also aims to strive for judicial reforms bringing

efficiency and transparency in the functioning of courts by

involving people outside the confines of the legal profession. Some

of the main objectives of the BLA read as under:

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- To uphold rule of law, promote higher values in legal

profession and to preserve and protect independence of

judiciary.

- To strive for improvement in the institution of judiciary

i.e. bar as well as the bench, for attainment of justice

economic, political and social through constitutional

means.

4. The Petitioner states that for the first time the Petitioner organized

a function to celebrate "National Law Day" on November 26, 2012,

at Mumbai. People from all walks of life participated in the event.

Shri K. Sankaranayanan, Governor of Maharashtra was the Chief

Guest and the Chief Justice of this Hon’ble Court Shri Mohit S.

Shah presided over the function. In the year 2013 Justice B.N.

Srikrishna, former Judge, Supreme Court of India was the Chief

Guest at “National Law Day”. In the year 2014 former Union Law

Minister and Sr. Advocate Mr. Ram Jethmalani, was the Chief

Guest. Justice J.N. Patel, former Chief Justice of Calcutta High

Court presided over “National Law Day” function. The Petitioner

had filed a PIL seeking direction from this Hon’ble Court for

celebration of National Law Day by the government and

educational institutions. In pursuance to same, vide Notification

No. F. No. 19022/11/2015-VI (E) dated 19/11/2015, Government

of India decided to celebrate 26th day of the November as

‘Constitution Day’ to promote constitutional values among

citizens. It is now being celebrated all over India by the

governments, as well as bar and courts. Taking into consideration

the problem faced by the judges, court staff, advocates and litigants

on account of scarcity of space in the present High Court building

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which in 150 year old, the President of the Petitioner organization.

Mr. Ahmad Abdi has filed a PIL for new High Court building with

adequate infrastructure in line of Supreme Court and Delhi High

Court. The same was taken up by this Hon’ble Court and various

directions were issued from time to time. Now, State Government

has allotted land for construction of new High Court building at

Bandra Colony, Bandra East, Mumbai and has promised to the

construct the same while redeveloping the Government Colony,

Bandra. The PIL is still pending before this Hon’ble Court.

5. That the Petitioner states that keeping in view its objectives, the

Petitioner has continued its activities by way of organizing

seminars, symposiums, debates, conferences, workshops and other

like events for the benefit of the legal fraternity which are as

follows:

o Seminar on "RTI Act in Practice and Supreme Court

Judgment: Problems and Prospects". Justice A.P. Shah,

former Chief Justice Delhi High Court, Mr. Shailesh

Gandhi, former Central Information Commissioner, spoke

on the occasion.

o "Study Circle" at the Government Law College (GLC),

Mumbai, for upgrading skills of advocates particularly

young advocates considering the ever-increasing number of

new laws, various amendments in the existing laws and

judgments of High Court and the Apex Court with emphasis

on practical aspects.

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o Seminar on "Use and misuse of power to arrest by the

police: Threat to personal liberty". Senior Advocates, Mr.

Ram Jethmalani, Mr. Shrikant Bhat, Mr. Amit Desai and

Mr. Ashok Mundargi, spoke on the subject. Hon'ble Mr.

Justice S.C. Dharmadhikari, Judge Bombay High Court

presided over the function.

o Publishing a magazine "LAWNAMA" which contain

articles written by advocates, judges and other prominent

persons on various aspects relevant for improvement of the

system dispensation of justice.

o Seminar on "Judicial Standard and Accountability Bill,

2010" on February 21, 2014 at Mumbai. Justice A.P. Shah,

former Chief Justice of Delhi High Court and presently

Chairman of Law commission of India and Sr. Counsel of

Bombay Mr. Aspi Chinoy spoke on the occasion.

6. The factual matrix of the present Petition is as under:

7. In November 2005, one Sohrabuddin Shaikh, alleged Lashkar-e-

Toiba operative and his wife Kausarbi were killed in an encounter

by Gujarat Police. It was alleged that the said encounter was fake.

8. In December 2006, one Tulsiram Prajapati, an eye witness to the

said alleged encounter was also killed in an encounter in Chapri

Village in Banaskantha District of Gujarat. Various Petitions were

filed in the Hon’ble Supreme Court challenging the encounter the

said Sohrabuddin.

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9. By the In 12th January 2010, the Hon’ble Supreme Court directed

the CBI to investigate the case relating to the killings of

Sohrabuddin and his wife Kausarbi. On 23rd July, 2010, CBI filed

Charge-Sheet naming Mr. Amit Shah, the then Home Minister of

Gujarat now national president of BJP and 18 others including

several police officers, as Accused. Vide its order dated 27th

September 2012, the Hon’ble Supreme Court transferred trial of the

case from Gujarat to Mumbai. The observations made by the

Hon’ble Supreme Court regarding prevailing facts and

circumstances are worth noting. Hereto annexed and marked as

Exhibit-“A” is a copy of said judgment and order dated

27/09/2012.

10. As observed by Hon’ble Supreme Court, the order (directing the

CBI to investigate the killings of Sohrabuddin and his wife

Kausarbi) came to be passed after the proceedings regarding to

those killings had gone on for over four years, initially on the basis

of two letter petitions and subsequently under the Writ Petition

(Crl.) No. 6 of 2007 (Rubabbuddin Sheikh v. State of Gujarat). 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 Gujarat Police and a charge-sheet was submitted on 16-7-2007

against thirteen (13) persons who were members of the Anti-

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Terrorist Squad, Gujarat Police and the Special Task Force,

Rajasthan Police.

11. 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 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 30/9/2008 the

Hon’ble Supreme Court was informed that following the

submission of the charge-sheet, even as the matter was under the

scrutiny of Supreme Court, the case was hurriedly committed and

the trial court had fixed the hearing on the charge on a day-to-day

basis. The Supreme Court on that date stayed further proceedings

in said 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.

12. In further proceedings before Supreme 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 Supreme Court to do. It was

argued on behalf of the State that with the submission of the charge-

sheet Supreme 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.

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13. Howevr, Supreme Court felt otherwise. It appeared to the Supreme

Court that there were a number of aspects of the case, including the

killing of Tulsiram Prajapati that were not addressed at all by

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.

14. Among the number of reasons that weighed with the Supreme

Court to ask CBI to investigate into the killings of Sohrabuddin and

his wife, even after the submission of charge-sheet by 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 CBI, the Court commented upon the

persistent effort to disconnect the Prajapati encounter from the

killings of Sohrabuddin and his wife. Further, recounting the many

deficiencies in the investigation by Gujarat Police, the Supreme

Court also noticed its omission to analyse the call details of the

accused that “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.”

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15. 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 the course of hearing of the writ petition) and the

Gujarat Police charge-sheet, the Supreme Court asked 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.”

Hereto annexed and marked as Exhibit-“B” is a copy of said

judgment and order dated 12/01/2010

16. As directed by the Supreme Court, the CBI took up the

investigation into Sohrabuddin case after instituting a fresh FIR on

01/02/2010. In the call records of the accused that had not been

worked out in the hands of Gujarat Police, CBI claimed to have

found a valuable source of important clues. On the basis of the call

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records, the statements of the witnesses and other materials

collected by it, CBI claimed that it has unearthed a conspiracy of

much larger proportions. It submitted a charge-sheet on 23/07/2010

in which, in addition to the thirteen accused named in the charge-

sheet of Gujarat Police, another 6 persons were also named as

accused, being part of the larger conspiracy. In the charge-sheet

submitted by CBI, one of the accused was Amitbhai Shah, who till

then was the Minister of State for Home in the State Government.

The accusation against Amitbhai Shah was that he was the lynchpin

of the conspiracy.

17. Following the submission of the charge-sheet by CBI, on

25/07/2010, Amitbhai Shah was arrested and was sent to judicial

custody. Since, the Supreme Court had asked 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.

CBI, therefore, felt that it was both authorised and under the

obligation to investigate Prajapati case as well, as it prima facie

appeared to be integrally connected with Sohrabuddin case. Gujarat

Police, however, did neither hand over the records of Prajapati case

to CBI nor allow it to make any independent investigation in

Prajapati case. On the contrary, Gujarat Police purported to

complete its investigation and, like the case of Sohrabuddin, rather

hurriedly filed the charge-sheet in the case on 30/07/2010, followed

by a supplementary charge-sheet on 31/07/2010, before the Judicial

Magistrate, First Class, Danta, Banaskantha District. The

Magistrate, equally quickly committed the case to the Court of

Session in two days' time on 02/08/2010 even without a proper

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compliance with the provisions of Section 207 of the Code of

Criminal Procedure.

18. According to the said 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 Sohrabuddin case. On the other hand, the whole

effort was to present it as a separate case, quite unconnected with

the case of Sohrabuddin. In the meanwhile, Amitbhai Shah was

granted bail by the Gujarat High Court, by order dated 29/10/2010

passed in Criminal Miscellaneous No. 12240 of 2010. Against the

order passed by the High Court, CBI immediately went to the

Supreme Court in SLP (Crl.) No. 9003 of 2010, giving rise to the

Criminal Appeal No. 1503/2012, seeking cancellation of bail

granted to Amitbhai Shah. On 30/10/2010 notices were issued to

Amitbhai Shah and the State of Gujarat. At the time of issuance of

notice, on the prayer made on behalf of 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 Amitbhai Shah that he would

leave Gujarat the following morning and would stay out of the State

till further orders that may be passed by the Supreme Court.

19. On 25/11/2010 CBI submitted a copy of its final report before the

Supreme Court.

20. On 13/01/2011 CBI filed the Transfer Petition (Criminal) No. 44

of 2011 for transfer of Sohrabuddin case bearing Special Case No.

5 of 2010 pending in the Court of the Additional Chief

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Metropolitan Magistrate, CBI, Mirzapur, Ahmedabad, titled CBI v.

D.G. Vanzara to the CBI Court in Mumbai or any other State and

for a further direction for the constitution of a Special Court.

21. While passing orders in said transfer petition, the Supreme Court

took a brief look at Prajapati case i.e. Writ Petition (Criminal) No.

115 of 2007 before it. It noted that in the first counter-affidavit filed

in 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 Sohrabuddin case was for

a writ of habeas corpus and it was for that reason alone that it was

entertained by the Supreme Court. There was no such angle in the

Prajapati 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 Sohrabuddin case. It was asserted that

there was no connection in the two cases. However, by the time the

writ petition came up for hearing, another affidavit was filed on

behalf of the State of Gujarat on 19/08/2010. In that 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

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that the encounter killing of Tulsiram Prajapati had nothing to do

with the killings of Sohrabuddin and Kausarbi.

22. Thus, the Supreme Court noted, that 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 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 the Supreme 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. Further, in 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.

23. Prajapati case (Writ Petition (Criminal) No. 115 of 2007) came up

before the Supreme Court and it was allowed by the judgment and

order dated April 8, 2011. The Supreme Court debunked the

contention that there was no connection between the killings of

Sohrabuddin and Kausarbi and the killing of Tulsiram Prajapati

(paras 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 hand

over the investigation of Prajapati case as well, to CBI.

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24. In pursuance of the Supreme Court's direction, CBI investigated

Prajapati case and 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.

25. The submissions made by the CBI before the Supreme Court in

support of the prayers for cancellation of bail and transfer of the

case, which were substantially the same, it was submitted on behalf

of the CBI that “Amitbhai Shah presided over an extortion racket”.

It was further submitted that in his capacity as the Minister for

Home, Amitbhai Shah was in a position to place his henchmen, top

ranking policemen at positions where they could subserve 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 the Supreme Court and Supreme 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 the Supreme Court. Even after the investigation was

handed over to CBI, he made things very difficult for them and CBI

was able to do the investigation against great odds.

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26. It is further submitted by CBI 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 the 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 Amitbhai Shah's release on bail and

permission to freely stay in Gujarat would greatly jeopardise the

efforts of 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 Amitbhai Shah to

enjoy the privilege of bail and further to let him stay in Gujarat

would have a very debilitating effect on the prosecution case.

28. Eventually, the Supreme Court rejected Criminal Appeal seeking

cancellation of Amitbhai Shah’s. However, observation made by

the Supreme Court regarding the issue is worth noting. The

Supreme Court observed, “…. 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

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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.” However,

considering the apprehension expressed by CBI that Amitbhai

Shah may misuse the freedom and try to subvert the prosecution,

the Supreme directed that Amitbhai Shah 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.

It further direct that Amitbhai Shah will report to CBI office every

alternate Saturday at 11.00 a.m. It was further made clear that the

grant of bail to Amitbhai Shah in Sohrabuddin case shall have no

effect in 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

Sohrabuddin case. The Supreme Court further made it clear that 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 Sohrabuddin case shall

be considered on its own merits.

29. The Supreme Court also made it clear that “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 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,

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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.”

30. In the said judgment, the Supreme Court noted the episode of one

of the accused, N.K. Amin whose petition under Section 306 of the

Code of Criminal Procedure for grant of pardon and for being

considered as an approver was kept pending for long time; inaction

on complaint of Smt Jayshree Amin, the wife of N.K. Amin

alleging threats to her husband's life in Sabarmati Jail which was

duly forwarded by CBI to the ACJM; and eventually petition by

said N.K. Amin requesting the ACJM not to pass any order on his

application under Section 306 (Ext. 8) and Section 164(5) (Ext. 49)

wherein 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.

31. The Supreme Court noted that besides the above, there are other

instances also appearing from the proceedings in Sohrabuddin case

due to which the Supreme Court had reasons not to feel entirely

happy at the way the courts below dealt with the matter. The

Supreme Court also referred to para 29 of its judgment in Nahar

Singh Yadav v. Union of India (2011) 1 SCC 307 which laid down

certain conditions for a case to be transferred outside the State. The

same reads as under: -

“29. 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)

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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 travelling 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.”

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After referring to said paragraph and conditions laid down by

Nahar Singh Supra, the Supreme Court observed as under: -

“We find that the conditions at Serial Nos. (i), (ii), (iii)

and (v) are squarely attracted in this case.”

32. Accordingly, the Supreme Court directed for the transfer of Special

Case No. 5 of 2010 pending in the Court of the Additional Chief

Metropolitan Magistrate, CBI, Courtroom No. 2, Mirzapur,

Ahmedabad titled CBI v. D.G. Vanzara to the Court of CBI,

Bombay. The Registrar General of the Gujarat High Court was

directed to collect the entire record of the case from the Court of

the 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 was to 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.

33. CBI filed charge-sheet in Tulsiram Prajapati case on 04/09/2012.

Vide judgment and order dated 08/04/2013 directed that said

charge-sheet be treated as supplementary charge-sheet in

Sohrabuddin case and both cases were clubbed together. Hereto

annexed and marked as Exhibit-“C” is a copy of said judgment

and order dated 08/04/2013.

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34. The said cases were originally assigned Shri J.T. Utpat, Special

Judge, CBI, Mumbai. However, in June 2014, he was transferred

to Pune and replace by another Judge Shri B.H. Loya. The said act

of transferring the judge, hearing Sohrabuddin case was in direct

breach of the order dated 27/09/2013 passed by the Supreme Court.

Therefore, it is just, necessary and proper that this Hon’ble Court

be pleased to call for the minutes of Administrative Committee of

this Hon’ble Court wherein decision to transfer the Judge Shri J.T.

Utpat was taken to ascertain whether the same was just, reasonable

and proper.

35. Shri Amit Anilchandra Shah filed Application for Discharge

(Exhibit-232) under Section 227 of the Code of Criminal

Procedure, 1973 in said cases. In the night of 30/11/2014 or early

morning of 01/12/2014, Shri B.H. Loya, Spl. Judge, CBI, Mumbai

reportedly died from cardiac arrest. Later, certain section of media,

relying upon the revelations by family members of late B.H. Loya

reported that the circumstances surrounding the death of late B.H.

Loya are suspicious. The Petitioners have filed separate Petition

seeking constitution of a Commission of Enquiry headed by retired

Supreme Court judge to investigate the events and circumstances

surrounding the death of Judge late B.H. Loya.

36. On 30/12/2014, the incumbent judge, Shri M.B. Gosavi, Special

Judge, CBI, Mumbai allowed Application for Discharge (Exhibit-

232) moved by the Shri Amit Anilchandra Shah. Hereto annexed

and Marked as Exhibit-“D” is a copy of said Order dated

30/12/2014.

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37. Respondent No. 1, CBI, which was contenting before the Supreme

Court that Shri Amit Shah was running an extortion racket, that he

was lynchpin in the conspiracy, that on the basis of call records it

has unearthed much larger conspiracy, that 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, and that apart from the

phone records, there were many other materials and

incontrovertible circumstances to establish the charges against

Amitbhai Shah, and accepting which contentions the Supreme

Court then transferred said cases from Gujarat to Mumbai, had

surprisingly chose not to challenge said order dated 30/12/2014

discharging Amit Shah. The brother of the Sohrabuddin,

Rubaudding had challenged said order before this Hon’ble Court

by way of Criminal Revision Application alongwith Delay

Condonation Application. However, in November 2015, said

proceeding was withdrawn by Rubauddin for the reason best not to

him.

38. According to CBI, had incontrovertible material and circumstances

to establish the charges against Amitbhai Shah which were

accepted by the Supreme Court while deciding the Transfer

Petition (Crl.) No. 44/2011. According to CBI’s own contention,

Shri Amit Shah was lynchpin in the conspiracy which was much

larger than a simple case of purported unconnected fake

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encounters. By discharge of Shri Amit Shah, entire case of CBI of

larger conspiracy which it was contending before the Supreme

Court would fall flat.

39. Section 227 of the Code of Criminal Procedure, 1973 provides for

discharge of an accused for the reason of absence of sufficient

ground for proceeding against him. The final report alongwith

records of the case was produced by the CBI before the Supreme

Court. The same was considered and accepted by the Supreme

Court while passing the order for transfer of the case. Records of

the case discussed in said judgment clearly establishes that there

was sufficient ground to proceed against Shri Amit Shah. As such,

order dated 30/12/2014 passed by the trial judge was clearly

erroneous. The CBI ought to have challenge said order before this

Hon’ble Court.

40. The trial court has similarly discharged two Rajasthan police sub-

inspectors Himanshu Singh and Shyam Singh Charan and senior

Gujarat police officer N.K. Amin. The Petitioner has learnt that

CBI has challenged their discharge before this Hon’ble Court. This

act of CBI of challenging discharge of the accused persons on

selective basis is arbitrary and unreasonable, rather malafides. In

this connection, it is pertinent to note that said N.K. Amin had

earlier mode Petitions under Section 306 and 164(5) of the Code of

Criminal Procedure before the ACJM, Mirzapur, Gujarat. The act

of CBI of selective challenge of discharge of N.K. Amin appears

to be out of vindictiveness for his earlier act of moving petitions

u/s. 306 and 164(5) of CrPC.

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41. The Petitioner had addressed a representation dated 16/01/2018 to

the Respondent No. 1 seeking to initiate appropriate steps for

challenging said order dated 30/11/2014 passed by Special Judge,

CBI, Mumbai before appropriate forum. However, nothing is heard

from them till date. Hereto annexed and marked as Exhibit-“E” is

a copy of said Representation dated 16/01/2018.

42. There is catena of judgments of this Hon’ble Court and Hon’ble

Supreme wherein it was held that arbitrariness in antithesis to the

rule of law. The Petitioner organisation was formed with solemn

objective “to uphold rule of law”. As such the Petitioner is filing

the present Petition challenging the inaction on the part of the CBI

in challenging the order dated 30/12/2014 passed by Ld. Special

Judge, CBI, Mumbai on Exhibit-232 in Sessions Case Nos.

177/2013, 178/2013, 577/2013, 312/2014. This Petition is filed in

public interest.

43. That in the circumstances, it is just, proper, necessary and proper

and in the interest of justice that this Hon’ble Court be pleased to

issue a writ of mandamus or a writ in the nature of mandamus or

any other appropriate writ, order or direction directing the

Respondent No.1, CBI to file criminal revision application or any

other appropriate proceeding challenging the order dated

30/12/2014 (Exhibit-“D”) passed by Ld. Special Judge, CBI,

Mumbai on Exhibit-232 in Sessions Case Nos. 177/2013,

178/2013, 577/2013, 312/2014 thereby discharging Shri Amit

Anilchandra Shah from the case. It is also just, necessary and

proper and also in the interest of justice that this Hon’ble Court be

pleased to direct the Respondent No. 2 to produce the minutes of

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Administrative Committee of this Hon’ble Court wherein decision

to transfer the Judge Shri J.T. Utpat (patently in breach of order

dated 27/09/2012 passed by the Supreme Court in Transfer

Application (Crl.) No. 44 of 2011) was taken to ascertain whether

the same was just, reasonable and proper.

44. That the Petitioner has not filed any other Petition in any High

Court in India or in the Hon'ble Supreme Court in the respect of the

subject matter of this Petition.

45. That in the circumstances, the Petitioner has no efficacious

remedies except approaching to this Hon'ble Court in its writ

jurisdiction. The relief’s prayed for if granted will suffice to meet

the ends of justice. The Petitioner has filed this petition without any

delay.

46. That the Petitioner is having its office in Mumbai. The Respondents

are having their respective offices in Mumbai. Impugned order in

respect of which writ of mandamus is sought was passed by the

trial court in Mumbai. Therefore, this Hon'ble Court, therefore, has

jurisdiction to entertain and decide the present Petition.

47. That the present Petition is being filed by way of Public Interest

Litigation and the Petitioner do not have any personal interest in

the matter.

48. That the entire litigation cost including the advocate’s fee and other

charges are being borne by the Petitioner.

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49. That to the best of the Petitioner’s knowledge and research, the

issue raised was not dealt with or decided and that a similar or

incidental petition was not filed earlier by it.

50. That the petitioner has understood that in the course of hearing of

this petition the court may require any security to be furnish

towards costs or any other charges and the petitioner shall have to

comply with such requirements.

51. There is no Civil Criminal or revenue Litigation involving

Petitioner which could have a legal nexus with the issues involved

in this PIL.

52. The Petitioner has paid fix Court fees of ₹ 250/-

53. The Petitioners will rely upon documents a list whereof is annexed

hereto.

54. The present Petition is filed through Shri Ashok Asthana, the

governing council member and authorized representative of the

Petitioner.

55. The Petitioner, therefore, humbly prays that:

(a) That this Hon’ble Court be pleased to issue a writ of

mandamus or a writ in the nature of mandamus or any other

appropriate writ, order or direction directing the Respondent

No.1, CBI to file criminal revision application or any other

appropriate proceeding challenging the order dated

30/12/2014 (Exhibit-“D”) passed by Ld. Special Judge,

CBI, Mumbai on Exhibit-232 in Sessions Case Nos.

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177/2013, 178/2013, 577/2013, 312/2014 thereby

discharging Shri Amit Anilchandra Shah from the case;

(b) That this Hon’ble Court be pleased to direct the Respondent

No. 2 to produce the minutes of Administrative Committee

of this Hon’ble Court wherein decision to transfer the Judge

Shri J.T. Utpat (patently in breach of order dated 27/09/2012

passed by the Supreme Court in Transfer Application (Crl.)

No. 44 of 2011) was taken to ascertain whether the same

was just, reasonable and proper;

(c) That such other and further relief as the nature and

circumstances of the case may require.

Petition drawn by me;

Advocate for the Petitioner Petitioner

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VERIFICATION

I, ASHOK ASTHANA, aged 62 years, an adult, Indian inhabitant of

Mumbai, the authorised having my address at 2A, Ground Floor,

Commerce House, 140, Nagindas Master Road, Fort, Mumbai – 400001

the authorised representative of the Petitioner abovenamed, do hereby

solemnly declare that whatever is stated in paragraphs No.1 to 5, 41, 43 &

45 to 53 of the Petition is true to my own knowledge and whatever is stated

in remaining paragraphs No.6 to 42 and 46 of the Petition is stated on

information and beliefs and I believe the same to be true.

Solemnly declared at Mumbai )

On this _____ day of January 2018 )

Identified by me Before me;

Advocates for the Petitioner