In a major relief to BJP national president Amit Shah, the Bombay High Court on Friday dismissed a public interest litigation questioning the CBI’s decision not challenge a 2014 lower court order discharging him from the much-discussed Sohrabuddin Sheikh encounter case.
Dismissing a PIL filed by the Bombay Lawyers’ Association (BCL) seeking a direction to the CBI to file a criminal revision application challenging the special court’s order dated December 30, 2014 discharging Shah from the Sohrabuddin Sheikh encounter case, a HC division bench comprising Justice Ranjit More and Justice Bharati Dangre said that the BCL “has no locus to institute the proceedings in form of Public Interest and that too after a lapse of three years after the discharge order is passed by a Court of competent institution”.
“...we are not inclined to exercise our writ jurisdiction either at the instance of an association of the practicing Advocates or at the instance of a public spirited individual who according to us, has no locus to institute the proceedings in form of Public Interest and that too after a lapse of three years after the discharge order is passed by a Court of competent institution. The Criminal Public Interest Litigations are dismissed,” the HC bench ruled.
“.... we do not find any failure of duty on the part of the CBI. The CBI has stated before us in emphatic terms that after going through the merits of the order of discharge, it has taken a conscious decision not to carry it further. In such circumstances, we are of the clear opinion that the mandamus cannot be issued to the agency which is an independent prosecuting agency,” the Judges observed.
“We are also not inclined to entertain the said litigation at the instance of the present petitioner in view of the legal embargo which we have already discussed in the above paragraphs. There is no statutory mandate imposed on the prosecuting agency either in the Code of Criminal Procedure nor do we find such a mandate in the Delhi Police Establishment Act which would permit us to interfere with the discretion of the prosecuting agency to challenge a particular order,” the two-member HC Bench said.
A “dreaded criminal” Sheikh and his wife Kausar Bi were killed in an alleged fake encounter in November 2004 by the Gujarat Police near Gandhinagar in Gujarat.
The case assumed considerable public importance owing to the alleged involvement of some of the high-profile politicians and IPS officers in it.
An aide Tulsiram Prajapati, who was the prime witness to the killings was arrested by the police and later killed in an encounter in December 2006 after the law-enforcers claimed he tried to escape from custody.
Later, the police had named 33 persons as accused in the case. Shah, who was Gujarat home minister at the relevant time in 2005, the then home minister of Rajasthan and several Gujarat IPS officers, lower police officials from both states besides Andhra Pradesh, were among the accused.
Several police officers from Gujarat were among the 33 accused in the “fake” encounters of Sohrabuddin Shaikh, Kausar Bi in November 2005 and Prajapati in December 2006.
The alleged Sohrabuddin fake encounter case was transferred to Mumbai in September 2012 at CBI’s request for fair trial. In 2013, the Supreme Court had clubbed Tulsiram Prajapati’s encounter killing case with that of Sohrabuddin.
In December, 2014, Special CBI Judge M. B. Gosavi in Mumbai discharged Shah and 16 other co-accused, citing either lack of sanction for prosecution or insufficient evidence against them.
