Dushyant Dave

The judgment of SJ Sharma, Additional Sessions Judge, City Civil and Session Court, Greater Mumbai, (since retired) dated December 12, 2018 is the greatest mockery of JUSTICE and reflects the malaise that has set in the Administration of Justice in the country. This judgment is a direct insult to the Supreme Court of India and the law laid down by it, not just in Rubabbuddin and Narmada Bai cases, by which the Supreme Court directed Central Bureau Investigation (CBI) to investigate killings of Sohrabuddin, his wife Kausarbi and Tulsiram Prajapati, but also to the settled law as to encounter killings by the Police. 

I have gone through the judgment of 358 pages, which I can only characterize as a judgment which reflects complete non-appreciation of facts, lack of understanding of the law and is bereft of any concern for human lives.

The judgment, when read as a whole, amply makes it clear that the Learned Judge was bent upon acquitting the accused by totally disregarding evidence, oral and documentary, placed before him. His approach is to reject everything that is inconvenient and to build a farcical story of the killings by the accused in holding that there was no evidence to link the accused to the wanton killings. The judgment is clearly a cruel joke on Rule of Law and the Democracy.

The judgment is a bundle of contradictions because from paragraphs 244 to 259, the Learned Judge discusses the law as to sanction under Section 197 of Code of Criminal Procedure. But then he records something extraordinary in paragraph 260,

“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… In absence of the sanction the accused are entitled for acquittal.”

This finding runs completely contrary to paragraphs 1 to 243 wherein he records that there is no evidence to establish beyond doubt that the 22 accused were involved in the killings of the three persons. The Learned Judge also records,

“262…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…. It is no doubt a matter of regret that there is reported killing of Sohrabuddin and Tulsiram Prajapati which is going unpunished.”

He records that, “The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.”

Clearly, the Learned Judge appears wholly innocent in Law. The law in respect of killings of citizens at the hands of the Police has been well settled by the Supreme Court in catena of decisions. In Gauri Shanker Sharma v. State of UP, the Supreme Court in 1990 reversed the acquittal by the High Court of a Police Personnel and convicted them holding,

“The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authority to brutally assault them while in his custody. Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj.”

In a 2011 judgment in Prakash Kadam v. Ramprasad Vishwanath Gupta, the Supreme Court went even further to declare,

“We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake “encounters” are nothing but cold-blooded, brutal murders by persons who are supposed to uphold the law.”

The Court thundered,

“We warn policemen that they will not be excused for committing murder in the name of “encounter” on the pretext that they were carrying out the orders of their superior officers or politicians, however high…Trigger-happy policemen who think they can kill people in the name of “encounter” and get away with it should know that the gallows await them.”

The Learned Judge does not show any concern in this regard, nor any knowledge of the above law. What is more disturbing is that the Learned Judge does not even know that Article 21 exists in the Constitution of India. 

The Judgment categorically finds that the accused were acting in discharge of their duties in what they did, finds that three persons have been killed, records that after those killings in alleged encounters Gujarat Police had filed FIRs/charge sheets expressly narrating the details of the encounters and the role played by 22 accused (and others who were earlier discharged in the same). What more was required is unfathomable.

Perhaps the Learned Judge is unaware that the Supreme Court has categorically settled principles for appreciation of evidence in such killings in following terms,

“6. Rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died.

7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice-delivery system suspect and vulnerable…The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve” {Munshi Singh Gautam v. State of MP, (2005) 9 SCC 631}. 

The Learned Judge reflects complete ignorance of the Indian Evidence Act, 1872 and many of its provisions which were so crucial in deciding the matter before him. Section 106 categorically provides for “burden of proving fact especially within knowledge”. It is settled law that Section 106 is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.

Law in this regard has been settled from 1956 in Shambu Nath Mehra v. State of Ajmer to Prithipal Singh v. State of Punjab in 2012. In the last referred judgment the Supreme Court affirmed the conviction of Police Officers guilty of killing a Human Rights Activist in Punjab holding, inter-alia, as under: 

1. “Police atrocities in India had always been a subject-matter of controversy and debate. In view of the provisions of Article 21 of the Constitution, any form of torture or cruel, inhuman or degrading treatment is inhibited.”

2. “Extraordinary situations demand extraordinary remedies. While dealing with an unprecedented case, the Court has to innovate the law and may also pass an unconventional order keeping in mind that an extraordinary fact situation requires extraordinary measures.” 

3. “In a case where the person is alleged to have died in police custody, it is difficult to get any kind of evidence.” 

4. “Tolerance of police atrocities, as in the instant case, would amount to acceptance of systematic subversion and erosion of the rule of law.”

Interestingly, in paragraph 33 the Supreme Court recorded these very killings amongst others to justify the orders for investigation by independent agencies.  

It is deeply disturbing that the Learned Judge in his entire judgment does not even refer to the judgments of the Supreme Court by which the investigations were ordered to be transferred to the CBI. In the judgment of Rubabbuddin Sheikh in 2010, the Supreme Court categorically recorded, 

“54. It is also well known that when police officials of the State were involved in the crime and in fact they are investigating the case, it would be proper and interest of justice would be better served if the investigation is directed to be carried out by the CBI Authorities

81. In the present circumstances and in view of the involvement of the police officials of 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”. 

In Narmada Bai v. State of Gujarat the Supreme Court even went further to hold,

“59. The fact that in the case of murder of an associate of Tulsiram Prajapati, senior police officials and a senior politician were accused may shake the confidence of public in investigation conducted by the State police. If the majesty of the rule of law is to be upheld and if it is to be ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to CBI.”

It is an admitted position that Prajapati while being in jail in Udaipur had represented to the Authorities including National Human Rights Commission (NHRC) that he would be killed in a fake encounter by Gujarat Police while being taken to Ahmedabad in a pending criminal case. This letter was forwarded by NHRC to the Police Authorities of Rajasthan and Gujarat to protect his life.

Yet what happened on December 27, 2006 was exactly what he had feared and from what he was to be protected at the instance of a Human Rights Watchdog. It is also a matter of record that DIG of the Anti Terrorist Squad Gujarat, which had killed Sohrabuddin and Kausarbi in November 2005, was transferred as DIG, Border Range just before the killing of Prajapati and the killing took place in the area under his control. Mr. Modi, then Chief Minister of Gujarat, was holding the charge of the Home Ministry and Mr. Amit Shah was the Minister of State for Home. It is a matter of record that in a public rally in Mangrol in Gujarat, Mr. Modi owned up the killing of Sohrabuddin in public by stating

“Sohrabuddin got what he deserved” and asked people “Congress in Gujarat is raising its voice on the Sohrabuddin issue. But it should explain to the people what should be done to a man who stored illegal arms and ammunitions. You tell me, what should have been done to Sohrabuddin?”

The crowd echoed, “Kill him, Kill him” and Mr. Modi responded, “Well that is it. Do I have to ask Sonia Gandhi’s permission to do this?” Subsequent to the judgment Vanzara himself stated in a press conference that, “But for the encounters, it might have become difficult to ensure the safety of Modiji and Pakistan by  now would have succeeded in turning Gujarat into another terrorist-ridden Kashmir.”

Thus, the entire narrative between 2002 to 2014 was built on hatred against Muslims and serial killings in fake encounters were the declared policy of the State. 

Post judgment, Mr. Modi in a Television interview replied to Question 29 stating,

“How are these people saying this? Recently, Sohrabuddin judgement came. Just read that judgement. See how institutions were misused.”

Mr. Jaitley, a lawyer par excellence and whom I hold in high respect, regrettably said, “Who killed the Sohrabuddin investigation” and that “the detractors should seriously introspect as to what they did to the CBI when they were in power.”

Mrs. Smriti Irani said that, “Nobody killed” Sheikh and “he just died” and said “Mr. Amit Shah was targeted by CBI as part of a political conspiracy”.

However, what the Nation must know is how the entire trial was deflected if not manipulated, at the instance of those in power. The Supreme Court while affirming bail granted to Mr. Amit Shah in its judgment in 2012 had categorically directed while transferring the two cases to Mumbai as under,

“39. The Administrative Committee would assign the case to a court where the trial may be concluded judiciously…The Administrative Committee would also ensure that the trial should be conducted from beginning to end by the same officer.”

It is a matter of public knowledge that Judges were transferred while one Judge died in what his own family categorically claimed to be suspicious circumstances, which claims the Supreme Court wished away by holding that only snippets of the interview were produced while neither questioning the genuineness of what was produced nor asking for full recording at any stage.

The appointment of Mr. Sharma as the last Judge assumes importance because he was to retire by December and was given extension for a few weeks to write the judgment. The Bombay High Court and the Administrative Committee owe a full explanation to the Nation as to how they selected this particular Judge who reflects complete lack of understanding of the law. Someday, the Supreme Court will have to examine as to why the Administrative Committee of the Bombay High Court vitiated this direction. Does this not render the judgment completely void ab initio requiring a full and proper retrial?  

CBI was not misused by the Congress. It was at the instance of the Sohrabuddin’s brother and Prajapati’s mother that the Supreme Court transferred the cases to CBI. Some of us took up the task in persuading the Supreme Court to do so, for protection of Human Rights and not for political gains. 

Let us hope the CBI under the interim Director appointed by Mr. Modi now files appeals against the judgment and let us hope and trust that the Bombay High Court will do justice in the matter. 

The author is a Senior Advocate and former President of the Supreme Court Bar Association.

Read the Sohrabuddin Judgment below

Image of Sohrabuddin: Scroll.in