Central Bureau Of Investigation vs Amitbhai Anil Chandra Shah And Anr

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:

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.

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.

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.

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.

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.

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.

September 27, 2012.