Amitbhai Anilchandra Shah vs Cbi & Anr

2) In Narmada Bai (supra), this Court, taking note of the fact that the charge sheet has been filed by the State of Gujarat after a gap of 3½ years and also considering the nature and gravity of the crime, rejected the investigation conducted/concluded by the State Police and directed the State police authorities to handover the case to the CBI. After investigation, the CBI filed a fresh FIR dated 29.04.2011 against various police officials of the States of Gujarat and Rajasthan and others for acting in furtherance of a criminal conspiracy to screen themselves from legal consequences of their crime by causing the disappearance of human witness, i.e., Tulsiram Prajapati, by murdering him on 28.12.2006 and showing it off as a fake encounter. Though the said FIR did not specifically name any person, in the charge sheet dated 04.09.2012 filed in the said FIR before the Court of Judicial Magistrate First Class, Danta District, Banaskantha, Gujarat, the petitioner herein was arrayed as A-1. Further, due to lack of jurisdiction, the charge sheet was presented before the 2nd Additional Chief Judicial Magistrate, (First Class), (CBI Court No.

Amit Shah that the above said prayer is based upon CBI’s own finding that the offence covered by the Second FIR is part of the same conspiracy and culminated into the same series of acts forming part of the same transaction in which the offence alleged in the first FIR was committed. It is also pointed out that it is the case of the CBI itself before this Court that even the charges will have to be framed jointly and one trial will have to be held as contemplated under Section 220 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). It is further pointed out that as per the CBI, the alleged criminal conspiracy commenced when Sohrabuddin and Kausarbi (whose deaths were in question in the first FIR) and Tulsiram Prajapati (whose death was in question in the second FIR) were abducted from Hyderabad after which Sohrabuddin was allegedly killed on 25/26.11.2005 and Kausarbi and Tulsiram Prajapati were killed thereafter since they were, as per CBI, the eye-witnesses. Finally, it is highlighted that the competent jurisdictional court has already taken cognizance of all the three alleged killings in the chargesheet/challan filed by the CBI in the first FIR itself.

12) It is the definite case of the CBI that the investigation has revealed that subsequent to the murder of Hamid Lala, Sohrabuddin and Tulsiram Prajapati continued their criminal activities in the States of Maharashtra, Rajasthan and Gujarat. However, Sohrabuddin remained elusive and beyond the reach of the Gujarat Police. It was, therefore, that the accused Amit Shah (petitioner herein), D.G. Vanzara, S. Pandiyan Rajkumar, Dinesh Man and others entered into a conspiracy to abduct and murder Sohrabuddin. Accordingly, D.G. Vanzara, with the aid of Abhay Chudasma, S.P. Valsad had Tulsiram Prajapati, an associate of Sohrabuddin, in order to trace Sohrabuddin. Whilst giving such directions, D.G. Vanzara also assured Tulsiram Prajapati that he would ensure safe passage for him as he would be implicated in some petty cases. It was after this assurance from D.G. Vanzara and Abhay Chudasma that Tulsiram Prajapati agreed to help them in tracing and locating Sohrabuddin. Accordingly, Tulsiram Prajapati, in accordance with his clandestine agreement with the Gujarat Police, informed them in advance about the plan of Sohrabuddin to travel to Sangli from Hyderabad and, thereafter, Sohrabuddin was abducted and murdered. By pointing out the above factual details, it is the stand of the CBI that the first conspiracy took place to eliminate Sohrabuddin with the help of Tulsiram Prajapati who agreed to trace and locate him after the assurances given by the Gujarat Police. Thus, in the aforesaid conspiracy, Tulsiram Prajapati can be said to be a part of the said conspiracy though not knowing the motive about the same.

Tulsiram Prajapati was assured that Sohrabuddin would get a safe passage and at the most Sohrabuddin would be put in jail so as to keep him away from glare for 3-4 months. No physical harm would be done to Sohrabuddin. Having got the assurance from accused D.G. Vanzara (A-

52. The investigation has further revealed that after the fake encounter of Sohrabuddin and murder of Kausarbi said deceased Tulsiram Prajapati knew that his death was imminent at the hands of the Gujarat Police in connivance with the Rajasthan Police as he was the only surviving prime witness to the abduction and killing of Kausarbi and Sohrabuddin. The grave apprehensions of Tulsiram Prajapati were expressed by him in his applications filed in the court of ACJM City (North) No. 1, Udaipur, on 27.01.2006 and 02.02.2006 and his letters addressed to the National Human Rights Commission (NHRC) dated 18.05.2006 and to the Collector, Udaipur dated 11.05.2006. In addition, he made verbal/oral prayer before the Hon’ble Principal Judge, Ahmedabad on 28.11.2006. Out of sheer desperation, he made the fervent appeal before the Hon’ble Judge that he would be alleged to have shown as escaped from the police escort party custody and subsequently killed in a fake encounter. True to his apprehension, the premonition came true as the events such as his alleged escape from the escape custody on 26.12.2006 registered with Ahmedabad Railway PS vide CR No. 294/2006 on 27.12.2006 and alleged fake encounter on 28.12.2006 registered with Ambaji Police Station vide CR No. 115/2006 dated 28.12.2006.

55. The investigation has further disclosed that while lodged in Udaipur Jail, in addition to the above mentioned prayers made by Tulsiram to the Human Rights Commission, different courts, he explained the true fact behind the fake encounter of Sohrabuddin to his jail inmate friends. The police kept the telephone number being used by some of the criminals inside the jail and outside the jail under interception and allegedly had received the information that Tulsiram was trying to run away from the custody. Both accused Shri. Dinesh MN (A-3) and IG, Udaipur Shri Rajeev Dasot sent letters for permission to intercept the telephone numbers alleged having such information. Thereafter, when Tulsiram Prajapati was brought to Ahmedabad on 28.11.2006 along with co-accused Mohd. Azam in connection with Case No. 1124/2004 (Popular Builders Firing Case) in JM Court No. 13, Ahmedabad, around 50 police commandoes were detailed for the escort party. On both these occasions, the mother, wife and daughter of Azam Khan accompanied them from Udaipur to Ahmedabad and back. Later on the police decided to kill Tulsiram and whereas on subsequent hearing fixed for 26.12.2006, Shri Tulsiram Prajapati was deliberately sent alone on 25.12.2006. His usual companion/co-accused Azam Khan was detained in a scooter theft case. Interestingly, the above scooter theft case registered in Ambamata PS of Udaipur (Rajasthan) vide Case No. 95/2004 was already detected, vehicle recovered and handed over to the complainant in 2004 itself. Thus, foisting a case against Mohd. Azam and sending Tulsiram Prajapati alone were to facilitate the murder of Tulsiram Prajapati. It has also come into evidence that this time before leaving Udaipur Jail on 25.12.2006, Tulsiram had expressed apprehension of his being killed in an encounter. Contrary to the earlier two occasions, this time only four police personnel were sent from the jail as his escort. On the way back from Ahmednagar to Udaipur, he was shown having run away from the custody on the night intervening 26/27.12.2006. Next day, he was killed in an alleged encounter.

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.”

67. Thus, in view of the aforesaid provision, it is eminently required in the interest of justice that the Tulsiram Prajapati fake encounter case be investigated and tried along with Sohrabuddin fake encounter case as the evidence procured so far shows that Tulsiram Prajapati’s encounter took place as he was the prime witness to the Sohrabuddin’s abduction. As such both these cold blooded murders are inter-connected, they ought not to be tried separately as it may give rise to conflicting findings, raise issues of issue estoppels and/or res judicata and end up derailing or frustrating the interest of justice.”

37)…..In view of various circumstances highlighted and in the light of the involvement of police officials of the State of Gujarat and police officers of two other States, i.e. Andhra Pradesh and Rajasthan, it would not be desirable to allow the Gujarat State Police to continue with the investigation, accordingly, to meet the ends of justice and in the public interest, we feel that the CBI should be directed to take the investigation.

34) In view of the consistent stand taken by the CBI, at this juncture, CBI may not be permitted to adopt a contradictory stand.

Maintainability of writ petition under Article 32:

Summary:

j) The investigating officers are the kingpins in the criminal justice system. Their reliable investigation is the leading step towards affirming complete justice to the victims of the case. Hence they are bestowed with dual duties i.e. to investigate the matter exhaustively and subsequently collect reliable evidences to establish the same.

Conclusion:

APRIL 8, 2013.