THE BOMBAY High Court on Friday dismissed a petition filed by the Bombay Lawyers Association (BLA) against the CBI’s decision not to challenge the trial court’s order discharging BJP president Amit Shah in the alleged fake encounter case of Sohrabuddin Shaikh on the ground that the petitioner has “no locus to institute the proceedings” and there is a “lapse of three years”.
Sohrabuddin Shaikh and his wife Kausar Bi were killed in an alleged fake encounter by the Gujarat Police in 2005. Shah, initially named as an accused, was discharged in the case by a trial court on December 30, 2014. The petition by the BLA has termed CBI’s decision as “illegal, arbitrary and malafide” not to challenge the order to discharge Shah.
However, a division bench of Justice Ranjit More and Justice Bharati H Dangre said, “…we do not find any failure of duty on the part of the CBI.”
“…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,” it added.
The CBI had told the court that after going through the merits of the order of discharge, it has taken a conscious decision not to carry it further. The bench held, “In such circumstances, we are of the clear opinion that the mandamus cannot be issued to the agency (CBI) which is an independent prosecuting agency. We are also not inclined to entertain the said litigation at the instance of the present petitioner in view of the legal embargo…”
“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,” it added.
Additional Solicitor General Anil Singh had argued for the CBI that the petitioners have no locus to file such a petition and it is the fourth time that such a petition has been filed. Before this, a revision petition was filed by Sohrabuddin’s brother challenging the discharge granted by the trial court, which was later withdrawn. Before that, two similar petitions were filed by two persons — while one was withdrawn, the other was dismissed.
Senior lawyer Dushyant Dave, appearing for the BLA, had told the court that the CBI was an independent investigation agency and it should bring home the accused. However, it has failed in filing an appeal against the discharge of Shah. “Being a premier agency, it was an obligation of CBI to file an appeal,” Dave told the court.
He argued that the CBI should put it on record by way of filing an affidavit, stating reasons why it has decided not to file an appeal and who made such a decision.