Saturday, January 24, 2015

Brushing Aside the Conspiracy Angle - critique of the CBI court's order discharging Amit Shah in the Sohrabuddin encounter case

The order by the Central Bureau of Investigation providing a clean chit to former Gujarat Home Minister Amit Shah has wiped out the entire slate of the Supreme Court's intervention in various encounter death cases. The discharge of the "lynchpin" of the conspiracy despite voluminous material providing strong grounds for proceeding with the trial will ultimately raise questions about judicial independence.

Manisha Sethi (manisha.sethy@gmail.com) teaches at the Centre for Comparative Religions and Civilizations, Jamia Millia Islamia, Delhi.

It is a matter of record that the State of Gujarat – after stout denial – admitted that Sohrabuddin Sheikh and his wife had been killed in illegal police custody. It is also a matter of record that the State of Gujarat ultimately – again after much dodging and subterfuge – accepted that the Tulsi Prajapati encounter was stage-managed.

IPS officer accused in Sohrabuddin fake encounter case promoted
Ramachandra Guha: Why is Amit Shah being allowed to make MPs out of bigots? 

In both cases, charge sheets were filed, committed to sessions with great alacrity, and trial dates fixed. However, the Supreme Court noted that this urgency arose from the desire of the Gujarat police to keep the two cases separate. Their “trenchant refusal” to draw the dots between the two sets of killings was part of the reason why the Supreme Court transferred the investigations to the Central Bureau of Investigation (CBI) with the express direction to unearth the wider conspiracy, if any. The CBI, in the course of its investigations, is said to have found Amit Shah (currently the president of the Bharatiya Janata Party) to be the “lynchpin” of the main conspiracy. Shah was arraigned as accused number 16.

Just as 2014 drew to a close, in view supposedly of settled principles of law and evidence on record, the special judge for the CBI discharged accused number 16 in the fake encounter and murder of Sohrabuddin, Kauser Bi and Tulsi Prajapati. The accused number 16 is widely recognised to be the chief lieutenant of the most powerful person in the current power hierarchy in the country. The Court also found “merit” in the contention that the accused has been “shown to be involved in this case by the CBI for some political reasons”.1
It is true that Amit Shah was no ordinary person to be among the accused. He was the state home minister when the encounters took place – Sohrabuddin’s and Kauser Bi’s in December 2005 and Tulsi Prajapati’s exactly a year later in 2006.

Anyone familiar with criminal trials will vouch for the low rate of discharge at the stage of framing of charges under Section 227 ofCrPC. Under this section, the judge is expected to merely sift the evidence to come to a conclusion whether or not there are “sufficient grounds for proceeding against the accused”. Very clearly, at this stage, the judicial mind was not exercised by the question of an accused’s guilt or innocence, which can only be determined in the course of a trial, but simply whether a strong suspicion existed about the accused’s possible complicity in the crime alleged. 

In other words, the CBI court for the present was not asked to sit in judgment of Amit Shah’s guilt, but only to decide whether there existed strong enough indications to link the BJP president to these grisly murders. The court in its wisdom found none. It rejected the plethora of witness statements recorded under sections 161 and 164CrPC as mere “hearsay”, evidence of systematic and direct interference by Shah in the state CID probe into the encounter as “vague and subjective” and material evidence of phone call records between Shah and the senior police officers accused of murder as insufficient.

Phone Call Records
Let us turn first to the high level of telephonic exchange between Shah and police officers including D G Vanzara, S Rajkumar Pandian (then superintendent of police, ATS, Ahmedabad), N K Amin, and others in the period in which the killings took place. In its charge sheet, the CBI found this high telephone traffic between a minister and field level officers to be odd:
As per the official protocol, a Minister of State for Home, Government of Gujarat would be normally expected to talk/discuss with the Home Secretary and/or the Chief Secretary, and further, if he were to be so briefed, then also, he would be expected to talk/discuss with the Chief of the Anti-Terror Squad (ATS) or the Crime Branch.
Shah’s lawyer while moving his bail application in 2010 had submitted to the Gujarat High Court that the abnormal volume of phone calls between Shah and police officers owed to the
abduction of a young boy which was investigated by Mr Amin and, therefore, as a public representative and Home Minister, he was constantly kept in touch to get the information about the progress of the matter and as a public representative in such situation he is not to see the protocol and, on the contrary, the protocol is not required to be followed in such situation as media was also focusing on that case.2
In the discharge application, however, the abducted boy is completely forgotten and a new theory about the minister’s signature “style of functioning” – of being in direct and constant “touch with field level police officers… particularly when the law and order situation in the State of Gujarat after the Godhra riots was too delicate to handle” is brought forth. Forget the fact that Soharbuddin and Kauser Bi were killed in December 2005 – three years after Godhra. This is a theory that is appreciated by the Court, which adds by way of observation:
The judicial notice of the fact well can be taken that terrorist activities have increased and are rampant all over the world. In such a situation, if a Home Minister of a particular State enters in a direct dialogue with officers like the Superintendent of Police working at the ground level is not a matter of surprise, unusual or unnatural as the CBI proposes.
In fact, the admission of continuous and close interaction between Shah and police officers (whose call detail records prove their location at the site of the farmhouse where Sohrabuddin was eliminated) should be cause for serious suspicion about Shah’s knowledge and role in the conspiracy, and not evidence of his ignorance of such a conspiracy.
Furthermore, if the call detail records were totally insignificant and proved nothing, why was there such a concerted effort to suppress their existence? It was the state CID, which during the course of its investigations had taken phone call details between Shah and accused police officers on record. However, once the Supreme Court directed the transfer of investigation to the CBI, the CID failed to hand over the CD containing these phone conversations. A total of 331 conversations had been deleted from the record by O P Mathur, recently brought in by minister Shah as head of the state CID to replace Rajneesh Rai, who, by arresting the top police officers of the state for the murder of Sohrabuddin, had proved to be intractable.3
Attempt to Sabotage CID Enquiry
The earliest record of Shah’s direct interference comes from one of the early reports filed by inspector general of police, Geeta Johri, who was made in-charge of the state CID investigation. In PartB of the slim 24-page report, Johri recorded how Shah had attempted to sabotage the enquiry. She wrote that though she and the investigating officer (IO) inspector V L Solanki did not face any “hurdle” initially,
However, as soon as the statements of witnesses pertaining to confinement of Sohrabuddin and Kausarbi in the Farm House of Shri Girish Patel at Ahmedabad came to be recorded, it came to the knowledge of Shri Vanzara and Shri Rajkumar Pandian [two of the accused officers]. It is further learnt that these officers brought the above facts to the notice of Respondent No. 2, Shri Amit Shah, Minister of State for Home, Government of Gujarat.
It further states that Shah “brought to bear pressure” on the enquiry process, resulting in the enquiry papers being taken away from her “under the guise of scrutiny”. He “directed Shri G C Raigar, Additional Director General of Police, CID (Crime & Railways) to provide him with the list of witnesses, both police and private, who are yet to be contacted by CID (Crime) for recording their statement in the said enquiry. Such direction of Minister of State for Home goes beyond the scope of his office, was patently illegal and apparently designed to provide the same list to accused police officers ... so as to enable them to take measures in their defence.”
The report also mentions a meeting of senior police officers that Shah had convened at Circuit House, Gandhinagar on 30 January 2006, where he introduced the theory that Kauser Bi and Sohrabuddin were not married, while admitting in a “cavalier manner” that she may have been killed as well.4
The Key Statements against Shah
The reference to another meeting called by Amit Shah surfaces repeatedly through the witness statements. Three crucial statements, all recorded under 164CrPC, taken together point unmistakably to the role of Shah. The first and the most direct source of incrimination is the statement of Gyanchand C Raiger, who was at the time ADGP (Home guards) with the additional charge as the ADGP CID (Crimes). He stated that Shah called a meeting, which was attended by him, P C Pandey and Geeta Johri. Shah was livid at the direction the CID probe was taking under the then IO Solanki, asking how a mere inspector could dare to investigate senior police officers. Raiger states that he refused to follow the “illegal instructions” being demanded by Shah and asked for a transfer.
Raiger’s statement receives corroboration from V L Solanki’s misstatement. He submitted that Geeta Johri conveyed to him the details of this meeting where the minister had made his displeasure and “bad mood” at Solanki’s report apparent, and asked him to change the report. Rajendra Acharya, Geeta Johri’s typist-cum-secretary, in his statement confirmed that Solanki had once emerged from Johri’s chamber after a meeting and told him about the pressure on him to change the report following Johri’s meeting with the minister.
How can this entire set of statements be dismissed as mere “hearsay”? Raiger’s statement related to Section 164 of theCrPC is direct, while Solanki’s and Acharya’s statements lend weight to that. Shah’s counsel insist that even if taken at face value, these statements do not hint at any conspiracy on his part.
That a minister would go to these lengths to protect his men, whom he admittedly was in close contact during the period of both encounters (Sohrabuddin and Prajapati) means nothing? How could it be that a minister whose style included having his ear to the ground through personal contacts with everyone in the field, remained in the dark as his top officers abducted and killed three people?
Geeta Johri’s Fluctuating Stand
The court also dismisses the possibility of such a meeting since Geeta Johri had denied that such a meeting ever took place. Her flip-flops have been significant signposts in the story of this investigation. In fact, it is a matter of record that Johri’s initial investigation, before she was removed from her post, proved to be path breaking. However, when she was reinstated, she took a completeU-turn on the case. The apex praising the investigation of the IO Solanki chastised Johri for her work. The Supreme Court observed the following:
69. We have observed that from the record, it was found that Mr V L Solanki, an investigating officer, was proceeding in the right direction, but Ms Johri had not been carrying out the investigation in the right manner, in view of our discussions made here in above. It appears that Ms Johri had not made any reference to the second report of Solanki, and that though his first report was attached with one of her reports, the same was not forwarded to this Court....
81. In the present circumstances and in view of the involvement of the police officials the State in this crime, we cannot shut our eyes and direct the State police authorities to continue with the investigation and the charge-sheet and for a proper and fair investigation, we also feel that CBI should be requested to take up the investigation and submit a report in this Court within six months from the date of handing over a copy of this judgment and the records relating to this crime to them.5
The Supreme Court’s Role
In fact, the Supreme Court’s detailed orders and observations point to a scrupulous monitoring of the investigations by the apex court. By terming Shah’s implication in the triple murder fake encounter case as a political conspiracy carried out by CBI under directions from a rival political party, the special CBI court has cast aspersions on the Supreme Court’s work which was monitoring the investigations closely at all stages.
It should also be kept in mind that though the Supreme Court did not cancel the bail granted to Shah by the Gujarat High Court in 2010, it held:
Had it been an application for grant of bail to Amitbhai Shah, it is hard to say what view the Court might have taken but the considerations for cancellation of bail granted by the High Court are materially different and in this case we feel reluctant to deprive Amitbhai Shah of the privilege granted to him by the High Court. The same court was convinced that in order to preserve the integrity of the trial it is necessary to shift it outside the State.6
The Rajasthan Connection
The special court while discharging Amit Shah has also taken the view that the CBI could not sustain the motive they had ascribed to him as “Sohrabuddin was already involved in many cases and was an absconding accused, which is not in dispute, and there was a reason for the Gujarat and the Rajasthan Police to nab him.” This is a classic justification for encounter killings in the annals of our criminal justice system. Is not the court already pronouncing verdict on the genuineness of the encounter by saying so? The court further wonders how Rajasthan police became involved since Shah could not have had any control over them. This immediately reminds us of the Gulabchand Kataria case. A BJP leader from Rajasthan, Kataria was named an accused in the supplementary charge sheet filed by the CBI in 2013. (The same year, when Vasundhra Raje formed the government in the state, Kataria was made a minister.) If anything, the intimations of a wide political conspiracy have been comprehensively ignored.
Questions Remain
The special CBI court also disregarded the statements of key witnesses: namely, the Patel brothers, Dashrath and Raman, proprietors of the successful Popular Builders. Their statements to the CBI detail how money was extorted from them and how they were being forced by Vanzara and cohorts to give a statement against Sohrabuddin. The statement describes the meeting as well as the telephonic conversation with Shah. This has been recorded under 164CrPC, and yet this is not deemed evidence but hearsay and unreliable.
What is also disconcerting is the short shrift given to the sequence of events leading up to the murder of Tulsi Prajapati. Prajapati was killed just when the CID team was to leave for Udaipur jail where he was lodged in connection with another crime to interrogate him. Prajapati had a foreboding about the impending danger and had been writing feverishly all through the year to the Udaipur collector, various courts and even the National Human Rights Commission seeking protection.7 He was finally eliminated enroute from Ahmedabad to Udaipur returning from a court appearance. He was murdered in the border district of Banaskantha. Was it a mere coincidence that the home minister had transferred DIG Vanzara as DIG Border Range to be posted at Banaskantha just days before Prajapati’s encounter?
The 75-page discharge order devotes less than two pages to the CBI counsel’s contentions, reflecting the increasing sparseness of the challenge posed by the prosecuting agency. Shah’s application to the CBI court seeking exemption from appearance before the court during the hearings was barely contested. In November 2014, the CBI told the Supreme Court that it was no longer interested in pursuing its own challenge to the Bombay High Court order granting bail to police officer N K Amin. The CBI’s lily livered response to Shah’s voluminous discharge application and marathon three-day arguments was a perfunctory 15-20 minutes argument by a junior lawyer.
The die had been cast on 16 May itself, when Amit Shah led the BJP’s electoral campaign delivering a rich harvest of parliamentary seats for the party. The reinstatement, one by one, of the entire phalanx of police officers accused of plotting and carrying out the abductions and killings, by the Gujarat government, was a sign of the times. Abhay Chudasama, accused of using Sohrabuddin’s gang to carry out a range of illegal activities, and accused of ultimately trapping him besides extorting money from the Patel brothers, has been reinstated as superintendent of police of the vigilance squad at Gandhinagar.
The collapsing of the case against Shah will shake the foundations of the case, as the order has dismissed the motive behind the conspiracy as well as the bulk of evidence in one stroke. The order has wiped out the entire slate of the Supreme Court’s intervention, returning us to the stage before the CBI was asked to investigate the wider conspiracy angle. The discharge of the “lynchpin” of the conspiracy despite voluminous material providing strong grounds for proceeding with the trial will ultimately raise questions about judicial independence.
Notes
Amit Anilchandra Shah vs CBI, Mumbai, 30 December 2014. The Court of Sessions for Greater Bombay.
Amitbhai vs Central on 29 October 2010, Gujarat High Court.
3 “Another Top Cop under Scanner for ‘Erasing’ Amit Shah Reference in CD” by Neeraj Chauhan and Ujjwala Nayudu, The Indian Express, 27 July 2010.
4 See “Geetha Johri Report Speaks of ‘Collusion of State Government’” by Neena Vyas, The Hindu, 5 May 2007.
Rubabuddin Sheikh vs State of Gujarat reported in (2010) 2 SCC 200, p 217.
Central Bureau Of Investigation vs Amitbhai Anil Chandra Shah And Anr on 27 September, 2012, Supreme Court of India.
Narmada Bai vs State 0f Gujarat & Ors on 8 April, 2011, Supreme Court.