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I have seen the discharge orders… HC should examine these orders: Justice (retd) Abhay M Thipsay on Sohrabuddin case

Almost a year after retirement, the judge says that the controversy surrounding the death in 2014 of special CBI court judge B H Loya, has prompted him to examine various orders passed by him and other judges in the matter.

Written by MAYURA JANWALKAR , Ruhi Bhasin |
Updated: February 14, 2018 3:07:46 pm
Bombay High Court should relook in Sohrabuddin encounter case: Ex-judge Abhay M Thipsay Sohrabuddin case: Justice Abhay M Thipsay says there is something “suspicious” and “contrary to common sense” in the proceedings in the case. (Express Photo/Janak Rathod)

As a judge of the Bombay High Court, Justice Abhay M Thipsay heard four bail applications of accused in the Sohrabuddin Shaikh alleged fake encounter case — D G Vanzara, former DIG, and M Parmar, former DySP, of Gujarat’s Anti-Terrorism Squad; Dr Narendra K Amin, DySP, Ahmedabad Crime Branch; and B R Chaubey, S-I, Gujarat Police. Of these, he granted bail to Amin in 2013 and Vanzara in 2014. But now, almost a year after retirement, he says the controversy surrounding the death in 2014 of special CBI court judge B H Loya, who was hearing the Sohrabuddin case, has prompted him to examine various orders passed by him and other judges in the matter. And, he says there is something “suspicious” and “contrary to common sense” in the proceedings.

Excerpts from an interview:

What prompted you to speak out on the Sohrabuddin Shaikh alleged fake encounter case?

I started reflecting on the case owing to the controversy related to judge Loya’s death. That is why I started looking into the orders. The gravity of the matter is increasing. I then read a report in The Indian Express that witnesses are turning hostile. There are many unnatural things that I saw when I started looking at the orders about how discharge orders have been passed in the case.

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Read | Failure of justice system in Sohrabuddin case, High Court should relook: ex-judge Abhay M Thipsay

How do you see the controversy surrounding CBI judge Loya’s death?

I don’t want to comment on the death but to say it was unnatural would be far-fetched. That, I don’t believe. But Loya’s CDRs (call detail records) should be seen.

What about Loya’s appointment as special CBI court judge (after being appointed on the registry of the Bombay High Court)?

When a person is appointed in the registry, you don’t have plans of immediately sending him back. This is an unusual thing. Before that, J T Utpat (Loya’s predecessor as CBI judge) was transferred abruptly. Why do I say abruptly? Transfers are made generally after three years unless there are extraordinary circumstances. He had not completed three years.

Read | All accused should be present in court from today, says CBI judge

Did you take permission of the Supreme Court? Were there any circumstances requiring his transfer when he had not completed the normal tenure of three years? When they (sessions judges) are brought, they are usually assured because there has to be stability for three years. Sometimes, due to some exigencies, that tenure is not completed but here, whether such circumstances existed needs to be seen. And even if they did exist, they should have informed the Supreme Court. The Supreme Court would have accordingly modified its order.

Why have you decided to break your silence on the fake encounter case?

I was very uneasy because I had dealt with the case and I knew the facts of the case roughly as I had dealt with bail applications of some of the accused. Fifteen of the 38 accused had been discharged. I was not very comfortable in granting bail to Vanzara but I had to grant it because of a Supreme Court order granting bail to co-accused (Rajkumar) Pandiyan and (B R) Chaubey. However, in my order, I made it clear that there was a prima facie case against him (Vanzara). That is why I am particularly pained because they (trial court) did not pay heed to that. I said there is a prima facie case and that there is a very heinous crime also. However, on these grounds when we had refused bail to others, the Supreme Court granted bail without touching on these aspects and only on the ground of prolonged pre-trial detention. Therefore, it would be unfair to detain the others after that. That is why bail was granted to Vanzara. Even (High Court Justice M L ) Tahaliyani thereafter granted bail to two-three persons.

READ | Here is list of 15 discharged so far

So are you saying that the orders of discharge in the case need to be re-examined?

Yes. Because, though a number of accused were granted bail, nobody had said at the time of granting bail that there is no prima facie case. Everybody had said that bail was being granted on the ground of parity when the other accused (Vanzara) is released. Actually, when there is no prima facie case, bail is given just for asking. In this case, the accused are repeatedly denied bail and released only after spending quite some time in jail. It is very absurd. I would say it is contrary to common sense that in the case of a person who is denied bail repeatedly, the court finds after five-seven years that there is no prima facie case. That doesn’t happen. Therefore, these orders need to be scrutinised properly before appropriate fora and the High Court should look into that.

Read | All accused should be present in court from today, says CBI judge

In your opinion, what are the inconsistencies in the case?

A number of accused have been discharged by observing that the evidence against them is weak. On the same evidence, however, the trial court found that there is a case for proceeding against some of the accused. The version of the same witness, as reflected in police statements, has been believed in the case of some accused and disbelieved in respect of others discharged. Abduction is believed. So you believe that he (Shaikh) was abducted. You also believe that it was a fake encounter. You also believe that he was illegally kept in the farmhouse. And you don’t believe that Vanzara, Dinesh M N (then SP Rajasthan) or Rajkumar are involved in that.

How could the constabulary or inspector-level officers have any contact with him (Shaikh)? You mean to say a sub-inspector abducted him (Shaikh) from Hyderabad and brought him to a different state? When on the basis of the same material, you say that there is no case against the SPs (Pandiyan and Dinesh). So the suspicion is that superior officers have been treated differently. That is suspicious.

Bombay High Court should relook in Sohrabuddin encounter case: Ex-judge Abhay M Thipsay On Judge Loya’s death: I don’t want to comment on the death but to say it was unnatural would be far-fetched.

What were the limitations you faced in passing orders granting bail to the accused?

There were no other limitations except that the Supreme Court had granted bail to two accused, Pandiyan and Chaubey. In those circumstances, my refusal would not be a proper exercise of judicial discretion and judicial discipline. In substance, the Supreme Court is ignoring the gravity of the offence, the heinous nature of the case, existence of a prima facie case, and is granting bail on two grounds, i.e., prolonged detention and no immediate prospects of trial commencing. If the Supreme Court has given importance to those grounds only, one could not see much difference in the case of the other accused. Though one would be entitled to reject it… it would not be proper. The time spent in jail was also more. So the problem doesn’t start with the grant of bail. The problem arises when discharge is granted.

Could you have rejected bail on different grounds even after the Supreme Court had granted it?

Even if the view taken by the Supreme Court in a particular case is thought to be wrong and contrary to its own previous decisions, the High Court will have to take the same view in the same case. It is not the function of the High Court to try to correct the view taken by the Supreme Court. If such an attempt is made, that is not good for the rule of law. You need certainty.

In Vanzara’s (bail) case, my reluctance is very obvious from the order itself. The allegation was that on the say of the minister (then Gujarat Minister of State, Home Affairs, Amit Shah), he had done (it). The minister was out in two months. Police officers remained inside. This should have been enough to teach them a lesson. So that way, seven years (incarceration) was enough. Granting bail under those circumstances would be quite different from saying there is no prima facie case against the accused.

Bombay High Court should relook in Sohrabuddin encounter case: Ex-judge Abhay M Thipsay Justice Abhay Thipsay at his office in Khar on Tuesday. When questioned on the inconsistencies on the Sohrabuddin case, Thipsay said a number of accused have been discharged by observing that the evidence against them is weak. (Express photo/Pradip Das)

Also Read | No witness has spoken about threat, sought protection, CBI tells Bombay HC

What struck you about the bail applications?

If there is urgency, it is bonafide, the accused seek early hearing of the bail application. In this case, they had just filed for bail and kept it pending. That itself is suspicious. Usually, it doesn’t happen. In 99 per cent cases of bail, the accused want an early hearing. If a person allows a bail application to remain pending for one or two years, during which period (judges’) assignments change, that itself is suspicious and needs to be examined.

Bombay High Court should relook in Sohrabuddin encounter case: Ex-judge Abhay M Thipsay Sohrabuddin Shaikh and his wife Kausarbi.

How do you see the proceedings before the trial court and the orders discharging 15 out of 38 accused, citing the need for sanction to prosecute?

The need for sanction has not been cited as grounds for discharge in the cases of all the discharged accused who are police officers. That question is brought only in the cases of some of the police officers accused. Section 197 (requiring government sanction for prosecution) of the Code of Criminal Procedure is applicable even to the lowest rank of police officers. If there is no sanction, you cannot take cognisance. That is right. But if there is no prima facie case, you cannot anyway proceed against the accused and in such a case, the question of necessity of sanction would not arise at all. However, dropping of proceedings for want of a prima facie case and dropping of proceedings for want of sanction (to prosecute) are two totally different matters.

One cannot supplement the other. If there is no prima facie case against an accused, the court cannot say that just because sanction to prosecute is granted, prima facie case exists. In the present case, in some orders, the trial judge, very interestingly, combined both the aspects and apparently on a totality thereof, passed orders of discharge. He says evidence is weak but doesn’t discharge the accused saying there is no prima facie case. What he says is the evidence is weak and therefore, there was a necessity of sanction. Some orders of discharge give an impression that he can’t entirely rely either on the so-called unreliability of material or the absence of sanction to prosecute as a ground to terminate proceedings against an accused. But if you are unable to discharge an accused on either of these two grounds, you can’t create a hybrid and cumulatively say there is substance on both grounds and, therefore, I discharge. That is the mischief. You take 30 from here and 30 from there and make it 60.

Read | Witnesses are turning hostile, what protection, Bombay HC asks CBI

I have seen the discharge orders. In that process of reasoning, the learned judge has found it unsafe to place reliance on some of the witnesses and has discharged the accused implicated by these witnesses. However, the statements of the same witnesses have been relied on by the learned judge for rejecting discharge applications. In circumstantial evidence, one should go by proof of circumstances and then see what the involvement of the particular accused is. I have not seen all the orders meticulously but my view is that one needs to go deeper into this. The High Court should exercise powers of revision and examine all these orders whether they are proper or not… (that) there is no consistency.

Another thing I find suspicious is that the accused always prefer openness of the trial. Usually, a person facing prosecution feels safer if it is done in the public gaze. Open trial is the best sort of protection for an accused. It is a human right recognised in international covenants. The right to open trial is basically the right of the accused. Here is a case in which the accused made an application praying to the court that the media be prohibited from publishing proceedings of the case. The trial court passed such an order which was subsequently struck down by the High Court. The question is how could the accused feel safe when the public would not know what was happening in the courtroom? That is very surprising, according to me.

Bombay High Court should relook in Sohrabuddin encounter case: Ex-judge Abhay M Thipsay His (Judge BH Loya) death is suspicious, there have been two other suspicious deaths. President gave a positive response, Rahul Gandhi told media persons. (Express photo/Anil Sharma)

Then there is the truncating effect. For example, out of four police officers who came from Rajasthan, SP Dinesh is discharged and others are being prosecuted. The theory of conspiracy and false encounter is prima facie accepted by the court as otherwise, it would have discharged the other three also. If that is so, why would there be no case for proceeding against Dinesh? Is this logical? So, are we accepting the theory that one inspector and two sub-inspectors from Rajasthan committed the offence without the knowledge of Dinesh, who brought them from Rajasthan, conspired with one DySP in Gujarat and then they went to Hyderabad? One police officer from Hyderabad is also not discharged. He merely helped them. Ironically, the person who gave his farmhouse to the police, who has been attributed a smaller role by the prosecution, has not been discharged. At least, you cannot make his case worse than those who kept him (Sohrabuddin) there. Such type of inconsistencies are many in this case.

What effect will re-examining these orders have on the ongoing trial?

If some of the witnesses have turned hostile, as is reported in The Indian Express, no purpose will be served even by re-examining these orders. But I would look at it from this point of view that there must be some reason for the hostility, such as witnesses being bribed, pressured or threatened. If we see the course of events in the trial, it is suspicious. It cannot change the course because without evidence, the court cannot convict. However, even if discharge orders are set aside by relying on statements of witnesses to police, it would be futile if they do not support prosecution in the court.

Given these observations, do you think this is a failure of justice?

This is failure of justice and of the justice delivery system. It is unusual that bail is denied to a number of accused for several years and then the court holds that there is no prima facie case against those accused. Lower level of officers are not discharged but senior officers are discharged though the nature of material against them is the same. The Supreme Court has ruled in a number of cases that if one accused is released on bail, the co-accused cannot be automatically released on bail unless their role is at par with the one who is released. However, even in the orders of the Supreme Court and High Court granting or refusing bail, not only did they not mention that there is no prima facie case but rather highlighted the existence of a prima facie case and clarified that the bail was being granted solely because of the prolonged pre-trial detention. The trial court had the courage to later hold that there was no prima facie case against some such accused.

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