More than 12 years since the fake encounter killing of Sohrabuddin Sheikh in Gujarat, the case continues to be riddled with new controversies. On February 24, the Bombay High Court replaced the judge who had been hearing a set of five petitions challenging the discharge of some senior Gujarat Police officers accused in the case.
The judge who has been replaced, Justice Revati Mohite-Dere, had lifted the gag order on media reportage of the proceedings in the Sohrabuddin Sheikh case in an order on January 24. She had also consistently pulled up the Central Bureau of Investigation for lack of clarity in presenting the prosecutor’s case, for its failure to protect witnesses and for opposing the discharge of lower-level police personnel while remaining quiet on the discharge of senior officers.
The replacement of Justice Mohite-Dere has come three months after she began hearing the revision petitions, and just three weeks after she started presiding over daily hearings.
Three of the petitions had been filed by Sohrabuddin Sheikh’s brother Rubabuddin, challenging the discharge of former deputy inspector general DG Vanzara, Rajasthan Police officer Dinesh MN and former superintendent of police Rajkumar Pandian. The judge was also hearing two petitions filed by the CBI challenging the discharge of Gujarat police officer NK Amin and Rajasthan police constable Dalpat Singh Rathod.
These five officers are among 15 of the 38 accused in the Sohrabuddin Sheikh case who were let off by CBI special court on grounds of insufficient evidence even before the trial began. These petitions will now be heard from scratch by Justice NW Sambre, while Justice Mohite-Dere has been assigned to cases of anticipatory bail applications.
This reassignment of judges may be “routine” and not unusual, said senior lawyers in the Bombay High Court, but is unfortunate given that Justice Mohite-Dere had already finished hearing most of the arguments from all the parties in the case.
“Change of assignments do happen every eight or ten weeks, but in this case there have been regular hearings for three weeks and substantial arguments are over,” said Vijay Hiremath, a lawyer who had previously represented Rubabuddin in the case. “Hearing all the arguments again would be a waste of time for everyone involved in the case.”
Public interest lawyer and activist Prashant Bhushan came down more heavily on the transfer of Justice Mohite-Dere. “Although change of roster in a high court is not unusual, if a judge has heard a case for several days, then that case is normally sent to him and kept as a part-heard matter,” said Bhushan. “Therefore if this particular case is not kept with her that would certainly be unusual and would make the change of roster appear to be malafide, especially in the light of her scathing observations about the CBI’s conduct.”
Taking the CBI to task
In the three months that Justice Mohite-Dere heard the revision petitions in the Sohrabuddin Sheikh case, she reprimanded the CBI in clear terms for its inability to instil confidence and a sense of security among witnesses. So far, 34 out of 42 witnesses in the case have turned hostile.
“Is this the seriousness with which the CBI is conducting the trial?” Mohite-Dere remarked on February 12, while hearing the petitions. “What protection are you offering to your witnesses? It is your duty to protect the witnesses, so they can depose fearlessly. You can’t file a chargesheet and not give your witness protection,” she said.
Mohite-Dere also pulled up the CBI for asking for more time to file responses to the Court’s queries, saying, “You cannot be a silent spectator. I am not getting the kind of assistance that I should have been getting from the CBI. If this is your attitude, then why are you even conducting the trial?”
When Mahesh Jethmalani, the lawyer representing the discharged police officers, claimed in court that the CBI is “more balanced” today than it was before, Mohite-Dere asked him, “Is that why it refuses to provide any assistance to this Court?”
Last month, when the judge lifted the gag order banning the media from covering the proceedings of the Sohrabuddin case, she made it clear that the public had a right to know about the proceedings of a criminal trial. “Society’s interest can’t be treated with disdain,” she had said.
Not the first time
Justice Mohite-Dere is not the first judge to be replaced in cases related to the Sohrabuddin Sheikh encounter killing.
Sheikh and his wife Kauserbi were shot dead in Ahmedabad in November 2005 by the Gujarat Police, who claimed they were Lashkar-e-Taiba terrorists. Tulsiram Prajapati, a witness to the shooting, was shot dead by the Gujarat Police in December 2006. A Supreme Court-appointed Special Investigation Team, however, dismissed the allegation that Sheikh and Kauserbi were terrorists, and found that they were killed in extra-judicial encounters.
One of the accused in the case was Amit Shah, the current Bharatiya Janata Party president who was Gujarat’s minister of state for home at the time of the Sohrabuddin Sheikh encounter. A report by the Gujarat Crime Investigation Department in 2010 found a suspicious frequency in the number of phone calls Shah exchanged with co-accused DG Vanzara and Rajkumar Pandian around the time of the encounter killings.
While the details of Sheikh’s death in 2005 have been elaborated in an earlier article, it is important to highlight that the Supreme Court had noted that attempts were made by the investigating agency of the State of Gujarat to mislead the courts, which is why in 2010, the case was transferred by the Supreme Court to the CBI and in 2012, the apex court moved the trial to Mumbai, directing that the case had to be heard by the same judge from start to finish. However, in June 2014, a month after the BJP came to power at the Centre, the CBI special court’s trial judge, Justice JT Utpat, was transferred and replaced by Justice Brijgopal Loya. Six months later, Loya died during a trip to Nagpur, and the judge who replaced him – MB Gosavi – dropped all charges against Amit Shah within two weeks of hearing the petition, with the CBI’s lawyer spending only minutes to oppose the discharge application. It was followed by discharge of 14 other accused persons even before the trial began and as many as 34 key witnesses turning hostile ever since.
Since November 2017, when two reports in the The Caravan raised suspicions about the circumstances of Loya’s death, various petitions have been filed in the Supreme Court demanding an investigation into the death. The CBI has not filed any petitions appealing Shah’s discharge in the case, but has appealed against the discharge of lower-ranking constables and police officers – something that Justice Mohite-Dere had pointed out during her hearings in the past three months.
‘Appeal to the Chief Justice’
While lawyers in the Bombay High Court did not want to comment on any probable political undertones of Justice Mohite-Dere’s transfer from the case of the revision petitions, they believe it would have been beneficial for the case to remain with her.
“Assignment changes happen routinely for judges, and a change was expected at this time, but given the sensitive and high-profile nature of the case, and the fact that so much of the court’s time had already been spent, the Chief Justice could have retained this case with the same judge,” said senior advocate Yug Chaudhary.
Judges are often reassigned from case to case every two months as a matter of routine transfer. “But there is a remedy – the two parties can approach the Chief Justice to allow the case to continue under the same judge,” said former Bombay High Court judge Abhay Thipsay. “Usually the judge himself may not like to make this request unless at least one of the parties makes a suggestion.”
In an interview to the Indian Express, Thipsay had earlier questioned the “absurd inconsistencies” now evident in the trial process, calling the proceedings “suspicious” and “contrary to common sense”.
“The version of the same witness, as reflected in police statements, has been believed in the case of some accused and disbelieved in respect of others discharged,” the former judge had said. “There must be some reason for the hostility, such as witnesses being bribed, pressured or threatened.”
Mohite-Dere had come down hard on the CBI. “What action are you taking in cases where witnesses have turned hostile,” she had asked. “Are they being charged for perjury for giving false evidence?”
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