The Bombay High Court on Thursday remarked that prima facie the trial court, in its order granting discharge to Gujarat ATS chief D G Vanzara last year in the Sohrabuddin Shaikh encounter case, had made some “erroneous” observations.
The remarks were made by Justice A M Badar, who is hearing a bunch of revision applications challenging the discharge granted by the trial court to several senior IPS officers of Gujarat and Rajasthan police, including Vanzara.
The police officials have been charged by the Gujarat CID and CBI for the “fake” encounters of Shaikh, his wife Kausar Bi and their aide Tulsiram Prajapati.
Justice Badar made the remark after the lawyer for Shaikh’s brother Rubabuddin argued that the special court’s order granting discharge to Vanzara was erroneous.
The lawyer, Gautam Tiwari, argued that, in the order passed on August 1, 2017, the trial court had held that there was no prima facie evidence that placed Vanzara at the site of the said incidents.
However, the trial court had failed to take note of the fact that Vanzara was the head of the ATS team that had abducted and killed Shaikh and the others, he said.
“They were all acting on the orders of their chief (Vanzara). It was Vanzara who had orchestrated the entire plan. He needn’t have remained present at all the crime spots since he was giving the orders,” Tiwari said.
Justice Badar then remarked that the discharge order for Vanzara, that was passed in August last year, did not take into account the fact that he needn’t have been present at the spot.
“This discharge order does not take into consideration any factors relevant to Vanzara’s case. It is as if the judge mistakenly passed the same order as Pandian’s in Vanzara’s case. It seems that the judge re-discharged Pandian instead of granting discharge to Vanzara,” Justice Badar said.
Justice Badar has been conducting hearings on a daily basis on three revision pleas filed by Rubabuddin and another two by the CBI in the case.
Rubabuddin has challenged the discharge granted to Vanzara, Gujarat IPS officer Dinesh M N and Rajasthan IPS officer Rajkumar Pandian. The CBI has challenged the discharge of Gujarat IPS officer N K Amin and Rajasthan police constable Dalpat Singh Rathod.
Senior advocate Mahesh Jethmalani, who represents Vanzara, Pandian and Amin, however, defended the discharge order. He argued that the court must take note of the fact that most of the prosecution witnesses in the case had turned hostile before a special court in the city. Jethmalani was defending the discharge granted by the special court to Vanzara.
Jethmalani told Justice Badar that the case of CBI, especially when it came to the allegations against Vanzara, rested primarily on the statements of two drivers who used to work for the Gujarat ATS at the time of the incident.
These witnesses, Nathuba Jadeja and Gurdayal Singh, had narrated the sequence of events leading to the abduction and killing of Shaikh and the others. In their statements, the two drivers had implicated Vanzara, Dinesh and Pandian.
However, both the witnesses have now retracted their statements and have, accordingly, been declared hostile by the special court.
Jethmalani pointed out that no other eye witness, except Nathuba had named Vanzara, and that there did not even exist any evidence to prove that the ATS chief had been present at the spots from where Shaikh and the others were abducted or killed. Since Nathuba had now retracted his statement, the same proved that the trial court’s order discharging Vanzara was in accordance with the law, Jethmalani argued.
Shaikh, a gangster with alleged terror links, and his wife Kausar Bi were killed in a suspected fake encounter by the Gujarat Police in November 2005. Prajapati was killed in another ‘fake’ encounter by the Gujarat and Rajasthan police in December 2006.
The CBI had booked 38 people as accused in the case. Between August 2016 and September 2017, a special court discharged 15 of the 38 accused persons. Those discharged included senior police officials of the Gujarat and Rajasthan police, and the BJP president Amit Shah.