Opinion: Sohrabuddin Sheikh judgement betrays every principle of justice and legal procedure

Fourteen years after Sohrabuddin Sheikh was gunned down by the Gujarat police, a trial court in Mumbai acquitted all those accused of killing him. His brother, Rubabuddin Sheikh, said he was heartbroken. “The court has not accepted any evidence,” he explained. “It looks like Sohrabuddin killed himself.”

Tulsiram Prajapati, an associate of Sheikh who was a witness to his abduction and possibly murder, was killed in a so-called encounter with the police a year later. His mother Narmada Bai said her son’s killing had already destroyed her life and the judgement would not change anything. “Now that the judgement has come I hope I don’t go through any more trouble,” she said.

The fate of this sensational criminal case – one of the most closely watched and morally significant in recent times – has been a tragedy foretold. The possibility of justice receded once Amit Shah, charged as the principal conspirator by the Central Bureau of Investigation, become India’s second-most powerful man. Then, events piled one on top of the other, moving inexorably towards this outcome. Shah, Gujarat’s home minister at the time of the killings, was jailed in 2010. When he eventually got bail, he was not allowed to enter the state. But after the Bharatiya Janata Party was elected to power in 2014, Narendra Modi handpicked Shah as the ruling party’s president and he quickly emerged as the prime minister’s closest political aide.

The outcome of Sheikh’s case throws a gloomy light on the capacity of India’s criminal justice system – police, prosecution and judiciary – to secure justice for crimes in which the accused are powerful politicians and persons in uniform. Yet, this case is also studded with heroes in public office and not just villains.

Here, it is necessary to recount some of the case’s key details to illuminate the full significance of the trial court’s judgement.

At the time of his murder in December 2005, the Gujarat police had charged Sheikh with being a member of the Lashkar-e-Toiba. They claimed the terror group, in collaboration with the Pakistani spy agency ISI, was out to assassinate Modi, who was then the state’s chief minister. They alleged that Sheikh fired at the police when they tried to capture him, leaving them with no option except to shoot him dead.

Those were the years when Gujarat was scarred by several such encounters; the police killed more than 20 people claiming they were trying to murder the chief minister or commit other acts of terrorism. In few of these cases was the police’s version effectively challenged. Sheikh’s killing would have become just another statistic in forgotten police records, except for two interventions. First, Rubabuddin Sheikh wrote to India’s chief justice that he did not believe the police’s version of his brother’s killing and that he was worried for the safety of Kauser Bi, Sohrabuddin Sheikh’s wife who had disappeared since her husband’s killing. In response, the Supreme Court told the Gujarat police to find out how Sheikh had been killed and what had happened to his wife.

Second, Prashant Dayal, a journalist with the Divya Bhaskar newspaper, published a sensational report claiming senior Gujarat police officials had deliberately killed Sheikh, then raped and burned alive his wife. Dayal had extracted the information from junior police officials whom he plied with alcohol.

Police’s story a falsehood

The investigation ordered by the Supreme Court was assigned to Inspector General Geetha Johri. She collected evidence that established that the police’s story of Sheikh’s death was a falsehood; he had been killed without provocation. The motorcycle the police claimed he had been riding when he was killed actually belonged to a cousin of a policeman. The Gujarat government’s counsel eventually admitted to the Supreme Court that Sheikh’s was indeed a fake encounter.

The inquiry was then handed over to Deputy Inspector General Rajnish Rai. He stunned the country when, in April 2007, he arrested senior police officers DG Vanzara, Rajkumar Pandian and Dinesh MN for their role in the fake encounter, and charged Shah with covering up the murder. For a police officer to book his home minister, and his peers in uniform, required exceptional courage. Rai paid the price for his integrity with his career. The Gujarat government ensured he was never again posted at the same place as his wife, an IAS officer. Recently, the government refused to accept his application for voluntary retirement and suspended him from service instead.

The investigation revealed that on November 22, 2005, a police team detained Sheikh, Kauser Bi and Prajapati from a luxury bus while they were on their way from Hyderabad to Sangli. The police team comprised personnel from both Gujarat and Andhra Pradesh and was led by Rajkumar Pandian. They had come only for Sheikh and Prajapati, but when Kauser Bi resisted, they took her as well. It would cost the woman her life. They were driven to Ahmedabad and held captive in separate houses. Sheikh was killed on November 26. His wife was drugged, raped and burned alive on or around November 29.

Prajapati surmised that Kauser Bi was murdered because she was a witness to her slain husband’s abduction. Now that he was the only remaining witness, Prajapati was convinced the police would kill him as well. In desperation, he begged the chairperson of the National Human Rights Commission to protect him. Once, when he and another gangster Azam Khan were presented before a magistrate in Ahmedabad, they pleaded that the police be directed to take them back to Rajasthan’s Udaipur Jail, where they were incarcerated, in shackles. They feared the police would kill them in a fake encounter and claim they had tried to run away.

In spite of this, Prajapati was shot dead. The Rajasthan police claimed he was gunned down when he tried to flee as they were taking him to Ahmedabad by train on December 26, 2006.

Rai, however, maintained that Prajapati was murdered because he was the only surviving witness to the abduction of Sheikh and his wife.

‘Amit Shah ran an extortion racket’

In 2010, the Supreme Court transferred the inquiry to the Central Bureau of Investigation. The agency eventually filed a sensational chargesheet, saying Amit Shah had been running an extortion racket, patronised by Gujarat’s police officers and politicians. Sheikh worked for this racket in Rajasthan. But he became too powerful, so his patrons decided to eliminate him. The murder was planned by Shah and Gulab Chand Kataria, former Rajasthan home minister, and it was outsourced to the Gujarat police, the chargesheet stated. Call data records collected by the CBI showed an unusual spike in communications between Shah and key police officers involved in killing Sheikh and Prajapati. For instance, Shah made 331 calls to the accused officers during Prajapati’s encounter. The call details were mysteriously deleted from the records later.

According to the CBI’s chargesheet, Prajapati was abducted from Ahmedabad and killed at the direction of Vanzara and Vipul Aggarwal, a superintendent of police. It was no coincidence that he was killed soon after Investigating Officer VL Solanki had sought permission to interrogate Prajapati about the killings of Sheikh and Kauser Bi.

Gujarat police officer GC Raiger told the CBI that in late December 2006, Shah called him to a meeting with PC Pande, then director general of police, and Johri. Raiger alleged that Shah told them “to wrap up the matter” and stop Solanki from interrogating Prajapati.

Solanki told the CBI that Johri instructed him to change the case papers in order to remove the evidence against Shah, since the home minister had so directed. Solanki refused. Rajendra Valjibhai Acharya, who was Johri’s personal assistant at the time, confirmed this conversation.

On the basis of the CBI’s incriminating chargesheet, Shah was jailed along with more than 10 police officers. But the situation changed drastically after the BJP took power in May 2014.

Initially, the judges hearing the matter appeared determined to ensure the law was applied impartially. On June 6, the trial judge JT Utpat reprimanded Shah for not appearing in person and fixed a date for his appearance. A day before Shah was to appear in his court, however, Utpat was abruptly transferred and replaced by Brijgopal Harkishan Loya. Loya persisted with his predecessor’s direction requiring Shah to appear in person. But the judge soon died under circumstances that his family found suspicious.

Less than a month after Loya’s death on December 30, 2014, his successor MB Gosavi discharged Shah, based only on an examination of the chargesheet. It is highly unusual for a criminal case to be dismissed after a chargesheet has been filed without the evidence being heard. Gosavi ruled that he found no credible evidence against Shah and that there was substance in the BJP’s chief defence that the CBI had framed him “for political reasons”.

Gosavi also discharged Shah’s fellow accused, including the BJP politician Kataria, the businessman Vimal Patni, and the police officers Pande, Johri, Pandian, Abhay Chudasama, NK Amin, Yashpal Chudasama and Ajay Patel. He freed Pandian on the technicality that his prosecution had not been sanctioned by the government, ignoring the provision that such permission is not required when the officer is charged with murder. All serving police officers among the accused have since been reinstated and promoted.

Families were denied justice

It’s quite rare for the CBI not to appeal the discharge of persons it has charged in any criminal matter for that would amount to admitting its investigation and chargesheet were flawed. In this case, however, the agency chose not to appeal the discharge of Shah and his fellow accused.

Rubabuddin Sheikh challenged Shah’s acquittal in the Bombay High Court. But he withdrew his challenge after only a few hearings, presumably under pressure.

One of the authors of this article, Harsh Mander, felt this was too important a case to pass unchallenged, so he appealed the trial court’s order in the Mumbai High Court. He was convinced this was not simply a private matter involving individual murders. After all, India’s premier investigating agency had charged that Gujarat’s former home minister ran a criminal extortion racket and, with the help of his senior police officials, had three inconvenient people eliminated. This person was now in a position of even greater power, arguably the second most powerful man in the country. It was not Harsh Mander’s claim that the charges were correct or that they would be established in a fair court of law. It was that the evidence collected by the investigators must be tested in a court of law since the public had the right to be assured that such crimes had not been committed by persons holding high public offices.

But his appeal was dismissed by the High Court – which later rejected a similar petition filed by the Bombay Lawyers’ Association – on the technical grounds that he did not have “locus”, meaning he was not related to the person killed. We maintain, however, that this wasn’t simply a matter of private grief of the families of the three persons killed. This was a matter of great public interest and, therefore, Harash Mander had every right to exercise his rights as a citizen. The High Court’s order dismissing the plea was upheld by the Supreme Court.

The discharge of Shah, Kataria and all Indian Police Service officers weakened the case against the remaining 22 accused persons. All except one of them were policemen, mostly of junior rank. Their trial began late last year. (Sarim Naved, one of the authors of this article, was a lawyer in this matter. He also represented Harsh Mander in the challenge to Shah’s discharge before the Supreme Court and key witness Azam Khan when he was threatened.)

Initially, the court imposed a gag on media coverage of the trial on the specious ground that it was a “sensitive case”. The order was overturned by the Bombay High Court. But while the gag order was in operation, and subsequently, 92 of the 210 witnesses turned hostile. The CBI, the prosecution and the judge remained unperturbed. Only a few material witnesses remained steadfast.

In his order acquitting all those accused of murdering Sheikh, Kauser Bi and Prajapati, the judge SJ Sharma expressed regret that their families were denied justice. He explained the omnibus acquittal by deploring the quality of evidence placed before him. “I feel extremely sorry for the family of Sohrabuddin Sheikh and Tulsiram Prajapati, especially his mother Narmadabai,” the judge said. “But the evidence before me could not establish the roles of any person accused in the case...no material evidence to prove any charges against the accused.”

Sharma concluded that “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”. He added: “The entire investigation was thus targeted to act upon a script to achieve the said goal and, in the process of its zeal to implicate political leaders, CBI created evidence and placed witness statements in the chargesheet.”

The judge reasoned that 92 witnesses turned hostile because the CBI had “wrongly recorded” their statements. He concluded that the “encounter” killing of Prajapati was “genuine”, the killing of Sheikh could not be proved to be a genuine or fake encounter, and that it was not proved Kausar Bi was abducted along with Sheikh and that she was killed in November 2005.

It’s a flawed judgement

There are obvious flaws in the judgement. The court did not examine more than 200 witnesses without explaining why. Among them was Rajnish Rai, the upright police officer who had initially investigated the case and found Shah and several senior police officers guilty. Prajapati’s mother Narmadabai did not depose because the CBI could not “locate her”. Since Prajapati had repeatedly told her that he feared being killed by the police, her evidence could have proved crucial. The court also ignored evidence from two key police witnesses who remained steady despite pressure. Identifying one of them as Amitabh Thakur, currently an inspector general of police in Odisha, The Telegraph reported, “He asserted before the court that the 22 accused did not have a motive to kill Sohrabuddin. Rather, they ‘were following instructions from their superiors and were discharging their official duty’.”

He named five persons who were “political and monetary beneficiaries” of Sheikh’s killing – Shah, Vanzara, Pandian, Dinesh MN and Abhay Chudasama.

Sandeep Tamgadge, who had been the chief investigating officer in Prajapati’s murder case, went even further. He named Shah, Vanzara, Pandian and Dinesh MN as the “principal conspirators” behind the murder. Tamgadge, who is now serving in Kohima, claimed the extortion racket involving Sheikh and Prajapati was a “criminal-politician-police nexus” that included Shah, Kataria and the gangster Azam Khan. He said phone records of the accused, including Shah, established their role in Prajapati’s encounter.

Witness Azam Khan who did depose could not even exhibit his statement before the magistrate. He claims he was tortured before and after his deposition, and seven cases were foisted against him by Udaipur police. He was taken into police custody to Mumbai where he says he was threatened by one of the accused policemen with implication in false cases and also that he would be shifted to Ajmer Jail from Udaipur Jail during that transfer, he would then meet the same end as Tulsiram Prajapati. Azam Khan’s wife applied for witness protection scheme, but the judge turned down the request. Another witness, Mahender Jhala himself volunteered to depose, but his statement to the magistrate has not been exhibited.

It needs emphasising that no court has actually absolved Shah of any of the grave charges made against him in the CBI’s chargesheet after hearing all the evidence and arguments by both sides, allowing each side also to interrogate and cross-examine the evidence. Nor have Gujarat police officers such as Vanzara and Pandian been cleared of any taint. What court after court has done is discharge the cases against them before evidence could be marshalled and heard in an open trial. This is extremely unusual and against the established practice in almost every criminal trial. At the stage of the framing of charges, the court is only looking at documents. No witness has yet been deposed or cross-examined. It is, thus, premature at this stage for the court to evaluate the evidence in the documents submitted to it, let alone reach a conclusion about discharging the case without allowing either side to present their evidence.

The unorthodox discharge of criminal cases against Shah, Kataria and the senior police officers without hearing evidence against them, and the failure to summon and hear many key witnesses before acquitting the remaining 22 accused renders suspect the credibility and fairness of the court.

This battle for justice hasn’t ended, though. It took 31 years for even constables to be convicted of the 1987 Hashimpura massacre of 41 Muslim men, and 34 years for Congress leader Sajjan Kumar to be punished for leading mobs that slaughtered Sikhs in Delhi in 1984. A day will come when it is revealed to the relatives of Sheikh, Kauser Bi and Prajapati how their loved ones were killed, and to the people of this country the mettle and character of those who rule it.

But even as we write this, we read with dismay the news of HD Kumaraswamy being caught on tape directing presumably a senior police officer to avenge the killing of a ruling party leader. The Karnataka chief minister instructs the officer to “mercilessly kill” the accused “in a shootout”. “There would be no problem,” he assures him. It is a sobering reminder that the malaise of extrajudicial killings ordered by people at the highest levels of political authority was not confined to Modi and Shah’s Gujarat.

Corrections and clarifications: This article was updated with the information available about the detailed trial court order as reported by the Indian Express today.