New Delhi, 24 November, 2011

The Supreme Court asked the UPA Government on Thursday to explain whether there was any nexus between the judge and the Centre behind ordering a CBI probe into the Sohrabuddin Sheikh fake encounter killing on January 12, 2010.

Former Gujarat minister of state for Home Shri Amit Shah’s lawyer Jethmalani on Thursday said the Supreme Court’s January 12 order directing CBI probe into the case of Sohrabuddin fake encounter was illegal because of two events – lead judge on the bench Justice Tarun Chatterjee was under CBI scanner in the Ghaziabad district judiciary provident fund scam case and second, he was given a cushy assignment by the Centre on his retirement immediately after ordering transfer of the fake encounter probe from Gujarat Police to CBI.

Arguing against CBI’s plea for cancellation of Shah’s bail before a bench of Justices Aftab Alam and Ranjana P Desai, Jethmalani said, “Prejudice can be of two types — actual and apparent. Apparent prejudice includes any fiscal interests. The central government has provided a cushy post-retirement job (to Justice Chatterjee). That is a direct instance of fiscal interest.”

He said anyone who was being probed by CBI must have been in communication with the agency’s investigators. “Any reasonable person has cause to believe there will be a motivation to please the CBI,” he claimed.

Shah’s lawyer said he came across a terminology for the first time in the PF scam case – no prosecutable evidence against Justice Chatterjee, which was informed by the attorney general to the apex court. But CBI did send a report to the appropriate authority on this.

Further, he reasoned that when the CBI officers were constantly questioning the judge, there was a reasonable cause to believe “there will be a motivation to please the CBI”. This got proved later when the charge-sheet in the PF scam neither held the judge “guilty” or “not guilty”. Instead, “There was an inscrutable observation against him that there is no prosecutable evidence. I have not come across this word in the Criminal Procedure Code.”

Jethmalani said for this reason, his client believed that the January 12 order was a result of political conspiracy. “All proceedings before the bench on January 12 should be declared non-est(non-existent in law). It is a duty this court owes to the system. A great damage will be done if things are brushed under the carpet,” he said.

When the bench sought the Centre’s response, additional solicitor general Indira Jaising attempted to wriggle out by saying she was representing the Centre in Rubabuddin Sheikh’s writ petition and not in either the cancellation of bail or transfer of the trial outside Gujarat.

But the bench insisted for the Centre’s response. “It has been said that the whole investigation is part of a political conspiracy. He (Jethmalani) has alleged that the judge, on behalf of the party at the Centre, directed the order. It is for you to see whether it concerns you or not,” the bench said.

On the plea for transfer of the case outside the state because of surcharged atmosphere, Jethmalani said CBI’s evidence relating to 200 extortion complaints against Shah had no basis and even the bench had termed them as trash.

“Then they say there is a surcharged atmosphere in Gujarat. It is a statement that no decent citizen in this country should accept. It is the most well governed state. Yes, riots took place in 2002. But it is a forgotten affair now. You cannot stigmatize the entire judiciary of the state to seek transfer of this one case,” he said.

“They (the CBI) have become so brave and indifferent to the course of justice that they have alleged that the accused have kith and kin in judiciary. I hope the state of Gujarat may have investigated this. Even if it was true, let the CBI go to chief justice of the high court and ask him to give a judge who is not the kith and kin of any accused,” he said.

On the plea of CBI to transfer the trial against Shah outside Gujarat, Jethmalani was critical of the agency alleging that kith and kin of accused serve in the judiciary. Gujarat’s Additional Advocate General Tushar Mehta informed the Court that on investigation, this charge was proved false. The court posted the matter for Tuesday, directing the Centre and the amicus curiae in the case, former Solicitor General Gopal Subramanium to come prepared for arguments.

Additional solicitor general Vivek Tankha, who appeared for CBI, said he would place documents to counter Shah’s arguments on Tuesday, but the bench wanted to hear the submissions of amicus curiae Gopal Subramaniam on the issue.

Jethmalani was also critical of the CBI probe and said it was not better than the investigation done by Gujarat Police under its officer Geeta Johri, who is now the Police Commissioner of Rajkot, as the agency’s charge sheet is identical to that of the state police barring the fact that four persons have been added as accused.

On allowing Gujarat entry to Shah

Jethmalani told the court that the CBI could not garner any evidence to make a prima facie case pointing to the involvement of Shah in the Sohrabuddin case.

He said this while winding up his arguments opposing the CBI plea challenging the grant of bail to Shah by the Gujarat High Court Oct 29, 2010 and transfer of the trial outside Gujarat.

“What to talk of enough evidence, there is no evidence” and thus “no prima facie case of involvement of Amit Shah” in Sohrabuddin Sheikh staged shootout case, Jethmalani told the court.

The senior counsel said that there was no evidence “establishing the meeting of minds between Amit Shah and 13 other perpetrators” (Gujarat policemen).

Jethmalani pleaded for emulating the disclosure guidelines of the British attorney general under which a disclosure officer goes into the entire evidence of the investigating agency and makes available to the accused the material that he could use to discredit the prosecution witnesses, weaken prosecution case and get bail.

At the end of the proceedings, the court asked Jethmalani that after hearing all the parties “if we are persuaded not to grant unconditional bail [to Amit Shah] then…” make it conditional.

But added that if under some circumstances Shah has to enter Gujarat he could do so by moving the high court taking its permission.

It may be recalled that on the plea by the CBI, the apex court Oct 30, 2010, though declined to cancel the bail but asked Shah to remain outside Gujarat.

Shah was arrested by the CBI July 25, 2010, for his alleged involvement in Sohrabuddin Sheikh’s killing.