HEARING a plea challenging the discharge of IPS officers in the Sohrabuddin Sheikh encounter case, the Bombay High Court on Wednesday said it would not consider the fact that witnesses have turned hostile in the trial court. The HC is hearing applications filed by Sohrabuddin’s brother Rubabuddin.
On Wednesday, the court began hearing the revision applications, including three filed by Rubabuddin challenging the discharge of former Gujarat DIG D G Vanzara and IPS officers Dinesh M N and Rajkumar Pandiyan; and two filed by the CBI challenging the discharge of Rajasthan police constable Dalpat Singh Rathod and Gujarat police officer N K Amin.
Rubabuddin’s lawyer Gautam Tiwari began his arguments against the discharge granted to Pandiyan by the lower court on August 25, 2016. As Tiwari began his arguments by referring to the statement of a key witness who is a police driver, advocate Raja Thakare, who is representing Dinesh M N, told the court that the key witness has since turned hostile in the lower court. Tiwari responded by saying the court was presently at the stage of framing of charges against Pandiyan, and therefore the conduct of witnesses in the trial court should have no bearing on the present case.
Justice A M Badar refused to consider at the revisionary stage that witnesses in the trial court had turned hostile. Referring to the statement of the police driver that Tiwari read out, Justice Badar said, “We have seen in newspapers that he and everybody is turning hostile.” The court will not let those discharged take advantage of anybody turning hostile in the trial court, the court said.
On November 22, 2005, Sohrabuddin and his wife Kausarbi boarded a private luxury bus from Hyderabad to go to Sangli, Maharashtra, to visit a doctor. The bus was allegedly chased by the police, overtaken near Zaheerabad in what was then Andhra Pradesh. Sohrabuddin, wife Kausarbi and their associate Tulsiram Prajapati were then allegedly abducted. Tiwari told the court on Wednesday that the bus was overtaken by a Qualis and a Tata Sumo, in which Pandiyan and his team were travelling. Tiwari read out various witnesses’ statements, to show that the Qualis was allegedly arranged by Pandiyan. He said statements of the passengers, bus conductor and bus driver corroborated the prosecution case that the bus was overtaken by policemen in plainclothes. Some of the witnesses had even identified pictures of the three passengers who were abducted, Tiwari said.
Tiwari further said one witness had recently filed an application in the sessions court saying he wants to depose but fears for his life. Tiwari was referring to a 40-year-old man, a close friend of Sohrabuddin and a co-inmate of Tulsiram at the Udaipur Central Jail till the latter’s alleged encounter in December 2006. At this point, senior counsel Mahesh Jethmalani, who is appearing for Pandiyan and Vanzara, said this witness is a history-sheeter. To this, Justice Badar said, “You cannot take away the human rights of a history sheeter.” Tiwari also read out statements of a farmhouse owner and caretaker who had earlier identified Sohrabuddin and Kausarbi as having been brought to their farmhouse by Gujarat police officers.
Most of the statements read out by Tiwari in court are from witnesses who subsequently turned hostile in the trial court. As of Wednesday, of 129 witnesses, 77 have been declared hostile. Tiwari told the court there was no parity or consistency in the sessions court’s discharge orders. The sessions court had rejected the discharge of all the officials accused of abduction and kidnapping but allowed Pandiyan’s discharge application. Tiwari also told the court that the act of abduction and killing cannot come in the ambit of Section 197 of the Criminal Procedure Code, which pertains to sanction to prosecute government officials. All the accused policemen had sought discharge on the ground that prosecution sanction under Section 197 had not been granted.
Meanwhile, the court rejected the petitions of Rajasthan police officers Shyam Singh Charan and Himanshu Singh Rajawat challenging the sessions court order rejecting their discharge application, and observed, “…no case for interference in the revisional jurisdiction is made out particularly when 125 prosecution witnesses are already examined after framing of the charge against both the revision petitioners.”
Charan and Rajawat’s lawyer Mihir Gheewala told the court that he was not arguing on merit but only on resorting to the provisions of Section 197 of the Criminal Procedure Code. The court said it is not “inclined to enter into that controversy.” It observed, “It is well settled that revisional jurisdiction is required to be exercised sparingly and that too in exceptional cases, when there is some glaring defect of the procedure or there is a manifest error on a point of law which has consequently resulted in a flagrant miscarriage of justice.”