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It has to be said right at the outset that in a major reprieve for all the political leaders accused of being involved in the Sohrabuddin fake encounter case, the Special CBI Judge SJ Sharma in CR. No. 49 who presided over the Sohrabuddin trial while clearly thwarting the prosecution's case and evidence that was placed on record and acquitting all the 22 accused recorded on December 21, 2018 in a 358-page landmark judgment titled Central Bureau of Investigation, Special Crime Branch (SCB), Mumbai vs Dahyaji Goharji Vanzara and others in Sessions Case Nos. 177/13, 178/13, 577/13 and 312/14 observed that the entire investigation of the prosecution was based on a pre-meditated and scripted theory that the killing of Sohrabuddin Shaikh, Tulsiram Prajapati and a pregnant Kausar Bi, was part of a larger conspiracy hatched by politicians with the help of both Rajasthan and Gujarat police. Special CBI Judge SJ Sharma without mincing any words said explicitly that, 'The Central Bureau of Investigation while investigating the Sohrabuddin case was trying to establish a pre-conceived and pre-meditated theory, rather than finding the truth. They had a script intended to implicate political leaders anyhow.' It must be borne in mind that while CBI was investigating the case, it was Congress led UPA which was in power and the names of several top BJP leaders including Amit Shah who is BJP's national President had figured in this high profile case!

Loopholes in prosecution's case

For the uninitiated, a total of 210 witnesses were examined in the case, out of which 92 had turned hostile. Initially we saw how 38 accused were named in this high profile case but 16 were discharged which included Amit Shah and former Home Minister of Rajasthan – Gulab Chand Kataria. The remaining 22 accused were acquitted. The prosecution was not able to prove any charges against any of the accused!

As usual, the judgment starts by first and foremost observing in para 1 that, 'At the outset, it is to be noted that all the accused persons (including the discharged and dropped accused nos. 1, 2, 3, 12, 15, 16, 17, 18, 20, 21, 22, 24, 35, 36 and 37) came to be charge-sheeted of the offences punishable under sections 120B, 364, 365, 368, 341, 342, 384, 302 read with section 201 of the Indian Penal Code as well as under section 25 of the Indian Arms Act.'

To recapitulate, it is then pointed out in para 3(a) that, 'One Sohrabuddin Shaikh (since deceased) was a dreaded criminal, against whom offences of murder, abduction and extortion, etc. were registered in the state of Gujarat and Rajasthan. He was an absconding accused in crime no. 214 of 2004 regarding murder of Harnidlal, committed in the jurisdiction of Hatipole Police Station of Udaypur in Rajasthan and in Crime No. 1124 of 2004 registered at Navrangpura Police Station, Ahmedabad, Gujarat, in respect of firing at the office of the Popular Builder. In the year 1994/95 upon his arrest, Gujarat Police seized 24 AK 56 rifles, large number of hand grenades and a large cache of ammunitions from the well of his farm house, which was supposedly sent to him by Dawood Ibrahim at the instance of ISI for spreading terror in India. Police from States of Gujarat, Rajasthan and Madhya Pradesh were desperately searching for his whereabouts. Kausarbi (since deceased) was wife of deceased Sohrabuddin Shaikh. Tulsiram Prajapati (since deceased) was an aide of deceased Sohrabuddin Shaikh and they both were undertaking criminal activities jointly. Award of Rs. 25,000/- and Rs. 20,000/- was already declared on Sohrabuddin Shaikh and Tulsiram Prajapati respectively. In the year 2004, gang of Sohrabuddin Shaikh became very active in Rajsamand, Nathdwara, Sukher and Udaipur districts of Rajasthan i.e. the areas which are known for marble mining and trade including export of the marble. Hamid Lala gang was protecting the marble traders for consideration. Gang of Sohrabuddin Shaikh and Tulsiram Prajapati wanted to take control over the area for financial gains by getting rid of Hamid Lala gang. Accordingly, Hamid Lala was murdered by Sohrabuddin Shaikh and his gang. Sohrabuddin Shaikh also started extorting large sum of money from A.K. Marbles and M/s. Sangam Textiles. In view of criminal background and nuisance of Sohrabuddin Shaikh and Tulsiram Prajapati, the accused persons from Gujarat and Rajasthan Police force entered into criminal conspiracy to eliminate Sohrabuddin Shaikh and then acted in connivance in abduction and killing of Sohrabuddin Shaikh. Acting in furtherance of the conspiracy, they also killed Kausarbi and Tulsiram Prajapati.'

Needless to say, this judgment makes it known in no uncertain terms that almost all the crucial witnesses who supported the case for prosecution turned hostile. How can all this be overlooked? All the witnesses that turned hostile had refused to corroborate their own statements recorded by the CBI.

As for instance, according to the prosecution, Sohrabuddin Kausar Bi and Tulsiram were travelling in a luxury bus run by Sangeeta Travels to Sangli when they were picked up by the Gujarat police. Thereafter, Tulsiram was handed over to Rajasthan police and Sohrabuddin was taken to Disha farm outside of Ahmedabad along with his wife Kausar Bi. But all the witnesses who were present in the bus during the said incident, including the driver and conductor turned hostile. A particular witness who runs a Dhaba near Pune had deposed that Rajasthan police had stopped at the Dhaba and he was told by one police personnel that they were carrying a hardened criminal from Gujarat. He also stated that his staff had served breakfast to Sohrabuddin. He turned hostile as well.

Simply put, the CBI Court also refused to accept the prosecution's case that Tulsiram was present along with Sohrabuddin and Kausar Bi in the bus when they were picked by the police. The CBI Court observed that there was no material evidence to prove that Tulsiram was indeed present during the bus journey. Also, the prosecution's claim that Tulsiram complained about a threat to his life depended on the testimonies of inmates who were with Tulsiram in Udaipur prison before his death. All the inmates turned hostile.

As it turned out, para 249 then lays down that, 'In the case in hand also, the twenty one accused were acting in discharge of their official duty and the alleged offence was committed while acting or purporting to act in discharge of their official duty by the twenty one accused. The cognizance of the offence alleged against them cannot be taken except with the previous sanction of the Appropriate Authority.'

While highlighting the importance of prior sanction, it is then pointed out in para 250 that, 'The provisions of Section 197(1) being mandatory requires no further elaboration. In the matter of State of H.P. vs. M.P. Gupta, reported in (2004) 2 SCC 349, the Honourable Supreme Court has observed thus:

'The mandatory character of protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence, without being supported by prior sanction from the Competent Authority concerned is absolute and complete. The very cognizance is barred. That is, the complaint 23 (2004) 2 SCC 349 cannot be taken notice of. The word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty, in the absence of the prior sanction from the Competent Authority concerned'.'

Going forward, para 251 then further adds that, 'It is well settled that sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.'

It cannot be missed out then as to what para 253 says. It says that, 'The alleged charges on the face of record demonstrate that they have strong nexus with the official discharge of duties by the twenty one accused or that there is a reasonable nexus between the offence alleged to have been committed by them and the routine discharge of his official duties. Even according to the case of prosecution, the official character of the accused gave him an opportunity for commission of alleged crime, when they were actually engaged in the performance of official duties. Therefore, the sanction of the Competent Authority before taking cognizance of alleged offences is a must. In the case of State of Maharashtra V/s Dr. Budhikota Subbarao 1993 (2) SCC 567, the Honourable Supreme Court has held that when an act alleged to be constituting an offence is directly and reasonably connected with the official discharge of the duties by a public servant, in such case the prosecution cannot be proceeded with, without the sanction from the Competent Authority under Section 197 of the Code of Criminal Procedure. In the case of P.K. Pradhan vs. State of Sikkim, reported in (2001) 6 SCC 704, the Honourable Supreme Court has held that when the act complained as an offence is done in discharge of official duties and when there is a reasonable connection between such act and the official duties, then in such event, the criminal prosecution cannot be set in motion without the sanction from the Competent Authority of such public servant. In the case of S.K. Zusthi and another vs. Bimal Debnath and another reported in (2004) 8 SCC 31, the Honourable Supreme Court has held that once it is established that the act alleged was done by the public servant while discharging his duties, in such event, 'the scope of such act being official' should be construed in wider perspective to advance the object and purport of 'prior sanction' as contemplated under Section 197(1). As per the ratio of the judgment delivered by the Honourable Supreme Court in the case of State of Karnataka V/s Nagarajaswamy 2005 (8) SCC 370, grant of proper sanction by a Competent Authority is a sinequanon for taking cognizance of an offence against a public servant. The Honourable Supreme Court has also gone to the extent of reinforcing the fact that 'the statutory requirement of prior sanction by a Competent Authority can arise at any stage of the prosecution and as there is no prescribed time limit for putting forth the said plea of defence by any public servant'.'

Continuing in the same vein, it is then underscored in para 254 that, 'Public servants who discharge their duties in the routine course of their office need to be protected so that the administrative/executive wheel can run smoothly. It was with the view to extend protection to public servants against unwarranted prosecution, Section 197 was incorporated under the Code of Criminal Procedure. In other words, Section 197 of the Code of Criminal Procedure has made it amply clear that whenever a public servant is to be prosecuted, prior sanction must be obtained by the prosecuting agency from the sanctioning/Competent Authority. In the case of R.R. Chari V/s State of Uttar Pradesh AIR 1962 SC 1573, the Honourable Supreme Court has observed that it is clear that the first part of Section 197(1) provides a special protection, inter alia to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties and the form which this protection has taken is that before a criminal court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been imposed as a safeguard before the actual prosecution commences. The object of Section 197(1) clearly is to save public servants from frivolous prosecution.'

Of course, in para 255 also it is re-emphasized that, 'In the case of Arulswamy V/s State of Madras AIR 1967 SC 776, the Honourable Supreme Court has specifically held that when the offence alleged is directly connected with the official duty and falls within the scope of official duties assigned, in such a case the prosecution can be launched only after obtaining permission from the Competent Authority concerned. For getting protection of Section 197 of the Code of Criminal Procedure, the offence alleged to have been committed must have something to do or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197 of the Code of Criminal Procedure unless the act complained of is an offence. The only point which needs determination is whether it was committed in the discharge of official duty. The exercise which needs to be undertaken is to find out whether the act and the official duty are so interrelated that one can assume reasonably that it was done by the accused in the performance of the official duty. If finding on this aspect is affirmative, then even if the act exceeds the need and requirement of the situation, sanction as envisaged under Section 197 of the Code of Criminal Procedure is necessary for taking cognizance of the alleged offence.'

To be sure, it is then again reiterated in para 256 that, 'In the case of Matajog Dubey V/s H.C. Bhari, reported in AIR 1956 SC 44, the Honourable Supreme Court has held that when the offence alleged is related to the discharge of the official duty of the public servant concerned and when there is reasonable connection as between the offence alleged and the discharge of official duty, in such event sanction for prosecution should be obtained from the Competent Authority of the accused before even institution of prosecution.'

More importantly, it is then clearly and convincingly held in para 257 that, 'It is, thus, clear that the legislative purport contained in Section 197 of the Code of Criminal Procedure prohibits a court from taking cognizance of an offence against a public servant without previous sanction from the appropriate authority. In other words, only the Competent Authority who is entitled to appoint and remove a public servant can evaluate as to whether a public servant has committed the alleged offence while discharging his official duties or not. To put it differently, when a person is not conversant with the duties that are cast upon the public servant, such person cannot evaluate as to whether the ‘act' done by public servant is an offence or not. In this view of the matter, considering the facts of the instant case and role allegedly played by the twenty one accused and the material sought to be relied by the prosecuting agency as discussed in the foregoing paragraphs, it was incumbent on the prosecution to obtain sanction prior to prosecuting the twenty one accused. The twenty one accused, as seen from the material in the chargesheet, which is discussed in earlier paragraphs, were certainly acting in discharge of their official duties. There is reasonable connection or nexus between the ‘act' and discharge of official duty which needs to be performed by the discharged accused. The twenty one accused were doubtlessly a ‘public servant' when the alleged offence is alleged to have been committed. Even going by the chargesheet, one fact remains not in doubt that the ‘act' alleged against him was committed while they were discharging their official duty.'

It also cannot be lost on us what has been set forth in para 258. It stipulates that, 'It is settled principle in law, while analysing the requirement of Section 197 Code of Criminal Procedure, that it is not the ‘duty' which is to be examined so much as the ‘act' since the alleged official act can be performed both in discharge of his official duty as well as in dereliction of it. The real test, as held by the Honourable Supreme Court in the case of D.T. Virupakshappa (supra) and Amal Kumar Jha V/s State of Chhattisgarh and Another (2016) 6 SCC 734 clearly appear to be that the act must fall within the scope and range of the official duties of public servant concerned. Though there cannot be any universal rule to determine whether there is a reasonable connection between the alleged act done and the official duty, the safest test as laid down by the Honourable Supreme Court would be to consider if omission or negligence on part of the public servant to commit the act complained of would have made him answerable for the charge of dereliction of his official duty. Testing the case alleged against the accused persons, it is not in dispute that apart from accused persons undisputably being a public servant, the act alleged was a part of their official duty. Applying the test laid down by the Honourable Supreme Court in the judgment in the case of Amal Kumar Jha (supra) as well as in the case of D.T. Virupakshappa (supra), if the accused persons would not have acted against the individuals about whom there were inputs of they being involved in serious criminal activities, the discharged accused would have been charged for dereliction of duty.'

Interestingly enough, the Special CBI Judge SJ Sharma who has authored this judgment then goes on to specify in para 259 that, 'Keeping in mind this settled law on the aspect of sanction to prosecute the public servant, I have considered all allegations against the accused persons found in the charge sheet and those are elaborated in detail in the opening paragraph of this judgment. I have examined all allegations contained in the Final Report for deciding whether previous sanction is required to be obtained by the prosecuting agency before taking cognizance of the alleged offence. In the instant case, as allegations made against the accused persons in chargesheets filed by the prosecuting agencies shows that the alleged offence was committed by the accused persons in discharge of their official duty and under the colour of office, even if it is assumed that the accused persons acted in excess of their official duty, then also they are entitled to claim protection of section 197 of the Code of Criminal Procedure.'

Be it noted, while acquitting the qaccused, it is then observed in para 260 that, 'the foregoing discussion makes it clear that the 21 accused who are police officials and who were found doing the act and deed in discharge of their official duty, are entitled for the benefit as contemplated under Section 197 of Code of Criminal Procedure. It was necessary for the investigation agency to obtain sanction of the competent authority before filing chargesheet. In absence of the sanction the accused are entitled for acquittal.'

It would be pertinent to mention here that in one of the concluding paras 261, the Special CBI Judge SJ Sharma sums up by saying that, 'In my entire discussion I have said that the witnesses have turned hostile. When I say that the witnesses have turned hostile, it merely means that they did not depose as per their respective statements recorded by the CBI during its investigation. However, I had the occasion of seeing the deposition of the witnesses while they were in the witness box before this Court which clearly reflected that they were speaking truth before the Court clearly indicating that their statements were wrongly recorded under Section 161 of the Code of Criminal Procedure by the CBI during investigation. I have examined the entire material placed before me.'

To put things in perspective, in this same para 261 in a damning indictment of the disingenuous manner in which the CBI was going about under relentless pressure from the then ruling political establishment of UPA led by Congress to implicate not just top leaders of BJP including Amit Shah who is BJP's national President among others but also all those police officials who were considered to be close to BJP, it is then held unambiguously by the Special CBI Judge SJ Sharma that, 'Having so examined the entire investigation and having conducted the trial I have no hesitation in recording that during the investigation of these offences, the CBI was doing something other than reaching the truth of the offences. It clearly appears that the CBI was more concerned in establishing a particular preconceived and premeditated theory rather than finding out the truth. My predecessor has, while passing an order of discharge in the application of accused no. 16 clearly recorded that the investigation was politically motivated.' Who is accused no. 16? He is none other than Amit Anilchandra Shah more famously known as Amit Shah who is BJP's national President and who was discharged vide order dated 30.12.2014 and still the Opposition especially Congress till date has never left any opportunity to launch a scathing attack for Amit Shah being himself involved in the killing of Sohrabuddin Shaikh and Tulsiram Prajapati among others! But at least now they must have some respect for the court's judgment and stop indulging in personal attacks on Amit Shah! If politicians stop respecting the court's order, it will certainly lead our country on the surest way to disaster for which none other but the political leaders will themselves be solely responsible! The name of Amit Shah has been cleared and this must be respected by everyone! In fact, his being absolved has only enhanced his stature as all personal attacks have fallen flat in the court of law and his stand thus stands vindicated that he has no connection whatsoever in this high profile case which even his political opponents cannot deny!

Not stopping here, para 261 then further goes on to elucidate that, 'Having given my dispassionate consideration to the entire material placed before me and having examined each of the witnesses and the evidence closely, I have no hesitation in recording that the premier investigating agency like the CBI had before it a premeditated theory and a script intended to anyhow implicate political leaders and the agency thereafter merely did what was required to reach that goal rather than conducting an investigation in accordance with law. The entire investigation was thus targeted to act upon a script to achieve the said goal and in the process of its zeal to anyhow implicate political leaders, the CBI created the evidence and placed statements purported to have been recorded under Section 161 and/or 164 of the Code of Criminal Procedure of witnesses in the chargesheet and such evidence could not withstand the judicial scrutiny of the Court and the witnesses whose statements were purportedly recorded deposed fearlessly before the Court clearly indicating that these purported statements were wrongly recorded by the CBI during investigation to justify its script to implicate political leaders. In my discussion I have also noted the negligence of the CBI towards material part of investigation which clearly indicating that they hurriedly completed the investigation either by using replica of the earlier recorded investigation and have implicated the police persons who had not at all knowledge of any conspiracy rather they appeared innocent.'

Finally and most importantly, in the last para 262, the Special CBI Judge SJ Sharma then winds up the judgment by holding that, 'Before I conclude, I must place on record the fact that I am not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the deceased in particular, by the fact that a serious nature of crime like this goes unpunished, but then the law does not permit the Court to punish the accused on the basis of moral conviction or suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to proe its case beyond reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that there is reported killing of Sohrabuddin and Tulsiram Prajapati which is going unpunished. So also Kausarbi who was the wife of Sohrabuddin disappeared and the script of the CBI during investigation that she was killed and set ablaze is lacking in evidence and is also going unpunished. However, just for the sake of record the accused cannot be punished holding them guilty on moral or suspicion ground. I have therefore no option but to conclude that the accused are not guilty and are to be acquitted.'

All said and done, this ruling has come as a great relief for all those who were fighting legal battle for the last more than five years especially police officials! Unless and until this ruling is reversed by a higher court, it has to be complied with and for heaven sake all personal attacks without any basis or evidence must stop forthwith on anyone including the police officials who have been acquitted! All the accused have been acquitted and this cannot be denied by anyone! No one has the unfettered right to pass personal remarks of any kind on anyone without having proof to substantiate it! So, we all must always bear it in mind and behave like a good citizen!

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