In an order that has provoked criticism in legal circles, a special CBI court in Mumbai, citing “security,” has restrained the media from publishing proceedings of the trial in the Sohrabuddin Sheikh alleged fake encounter case saying that the matter “appears sensational.”
Special Judge S J Sharma passed the order on Wednesday evening following an application filed by defence advocates seeking a “complete ban on print, electronic and social media” reporting on the case on the day the trial was expected to commence.
“Considering the sensitivity in the matter, likelihood of happening of any untoward incident and likelihood of effect on the trial of this matter, in case of day-to-day publication of evidence that may be brought on record, I am of the view not to allow media to make publication of any of the proceeding during the trial in the matter until further order. It may happen that the publication may create security problem for the accused persons, prosecution witnesses, the defence team and the prosecutor as well. I, therefore, find justification in the request of the defence team of lawyers,” the Special Judge said in his order.
Although the court has not specified in its order, the media will be allowed to sit in court during the proceedings but will not be allowed to publish anything related to it.
Earlier in the day, advocate Wahab Khan representing Rajasthan policeman Abdul Rehman Khan submitted a handwritten application to the court seeking a ban on the media. “Every day, a new development is being reported. The case is already having a chequered history. We apprehend the security of witnesses, accused and even the defence lawyers,” Wahab said.
The defence advocates also referred to reports on the 2014 death of CBI Judge B H Loya.
The judge asked whether other advocates were in support of the application. After other defence advocates also supported the plea to ban the media from reporting the case, the court sought the CBI’s view. Special public prosecutor B P Raju submitted that the court may pass “appropriate orders.”
Reporters in the court made oral submissions opposing the plea stating that the publication of the proceedings was in public interest.
“At the outset I must appreciate and compliment the media for the hard work and efforts to collect essential events and to publish them to make the public aware…and to throw light that such events are happening may be constructive or destructive. Even during collection of such events, number of incidents had happening the past where many media persons have to face assault and have to suffer serious injuries,” the court said.
“However, in the proceedings…the popularly known case of the killing of Sohrabuddin, his wife, Kausarbi and their associate Tulsiram Prajapati….wherein the accused persons are none else but the police of Gujarat state, Rajasthan state and Andhra Pradesh and this case has been transferred to Mumbai court by the order of the Honourable Supreme Court. Number of witnesses have been examined by the state CID crime, Gujarat and CBI and the witnesses are police as well as private persons and in the past four years from the receipt of chargesheet, 15 accused who are the ministers of Gujarat and Rajasthan and high ranking police officers have been discharged, the matter appears sensational,” the court said.
Of the total 38 accused in the case initially named by the CBI, the court framed charges including murder, criminal conspiracy, destruction of evidence against 22 persons with the High Court having stayed the framing of charges against IPS officer Vipul Aggarwal till next month.
In 2012, the Supreme Court had transferred the case to Mumbai after the CBI submitted that witnesses were being threatened and the trial could not be held in a free and fair manner.
In November 2005, Sheikh was traveling in a Sangli-bound bus from Hyderabad along with his wife Kausarbi and associate Tulsiram Prajapati. A police team chased the bus and forced the three to alight and eventually took them to Ahmedabad where Sheikh was first allegedly killed. Kausarbi, who was a witness to the incident, was also allegedly killed. But the investigators were never able to trace her remains. Prajapati was also allegedly killed in 2006.
Since the transfer, the court has heard arguments on discharge by all accused.
Among the persons discharged are former Gujarat Anti-terrorism Squad chief D G Vanzara and BJP President Amit Shah.
Commenting on the gag order, former Attorney General of India Soli Sorabjee said: “I am against any curbs on media reporting unless there are compelling reasons of national security. And I see none in this.”
Senior lawyer and former advocate general of Maharashtra Ravi Kadam said, “This is unusual. What is the point of a public trial? That justice is done and seen to be done. This is not a good enough reason. He (judge) can give security or control the number of people given access to the court. The media cannot be kept out. The media is not a threat to anybody. This is very wrong. I have never seen anything like this…(proceedings) kept away from the media because it may embarrass someone. There is no right to challenge this because this is an administrative decision. But somebody may file a writ against the decision. In very rare cases is this interfered with but if it infringes on press freedom eventually people’s right to information is being taken away.”
“Gag orders generally should never be made by a court…without proper reasons, it is undemocratic. A gag order should never be made on the mere asking. There should be proper pleadings and proofs as to why it is absolutely necessary,” said Colin Gonsalves, senior Supreme Court lawyer and founder director of Human Rights Law Network.
Disagreeing with the order, Mumbai-based senior criminal lawyer Vijay Pradhan said: “If there is a child witness to be examined, offences of rape, if there is a question of privilege claimed over a document related to state security that could be in camera. Inherently, it is the judges’ right but as a matter of principle it is generally avoided.”
“Barring media coverage in a trial arises in exceptional circumstances. What is the real security problem which has arisen or is likely to arise by media reporting needs to be seen,” said senior counsel Amit Desai.
Former Supreme Court judge P B Sawant said, “If both parties are agreeable or want it and if the court feels that it is in the interest of public order that the trial should be conducted in camera, it can allow it. There is a provision in the (criminal) procedure code. It is a discretionary power. The court can also reject it.”
He said that generally in cases like these, an appeal may not be entertained by a higher court. “What reason can you give? If the trial court sees danger to witnesses, the high court will not be in a position to interfere with it,” Justice Sawant said..
Former Bombay High Court judge Hosbet Suresh said: “\I think prima facie in a country like ours, to prevent reporting is fundamentally wrong. Our constitution guarantees freedom of the press. People have a right to know what is happening in courtrooms.”