Balkrishan Rajendraprasad Chaubey vs Central Bureau of Investigation

Abhay M. Thipsay, J.—The applicant a policeman, who was working as a Sub-Inspector of Police in the Anti Terrorist Squad (ATS) Ahmedabad, at the material time, is the accused No. 6, in the case arising out of R.C. No. BS1/S/2010/0004 dated 1/2/2010 registered with CBI SCB, Mumbai. There are totally 19 accused in the case. The allegation against the applicant and the other accused is that, they have committed offences punishable under sections 120B of the IPC read with sections 365 IPC, 368 IPC, 302 IPC and 201 of the IPC. The case of the investigating agency, in brief, is that the police officials of Anti Terrorists Squad (ATS), Gujarat, and Special Task Force, Rajasthan, entered into a criminal conspiracy to abduct one Sohrabuddin Shaikh from Andhra Pradesh in order to kill him. That the said Sohrabuddin Shaikh, who had some criminal background, was attempting to extort money from some powerful businessmen from Gujarat and Rajasthan who had approached political leaders for their protection. It was thereafter planned, by taking high ranking Police Officers in confidence, that Sohrabuddin Shaikh should be got killed and should be shown as having died in an encounter with the police. Pursuant to this conspiracy hatched, Sohrabuddin, his wife Kausarbi, and one more person-Tulsiram Prajapati-were abducted from Andhra Pradesh and brought to Ahmedabad by the Police Officials from Rajasthan and Gujarat. They were confined in a farm house near Ahmedabad for sometime. Later on, Sohrabuddin was killed by the police. As preplanned, it was projected as if he had been killed in an encounter with the police. Preparation had already been made for lodging of a false First Information Report to the effect that Sohrabuddin had come to Ahmedabad for killing a prominent political leader, and that Sohrabuddin was to do this with the cooperation and help of Pakistan Based Intelligence Agency ISI, and Terrorist Outfit Laskare-Toyeba. A story was cooked up that since the police were in receipt of this information, they had kept a watch at a particular point on the road by which Sohrabuddin, as per the information received, was to come. That, when Sohrabuddin came to the said place on a motorcycle, he was asked to stop by the police, but he did not respond to the said call and opened fire on police. The Police Officers fired in retaliation, and in this firing, Sohrabuddin fell down on being hit by the bullets fired by the police.

A first information report to this effect viz. that a person who had come to kill a prominent political leader with the cooperation of the Pakistan Based Intelligence Agency etc., was killed in an encounter with the police, was lodged, as preplanned, by the accused No. 7 Abdul Rehman, PI, and was registered with the Anti Terrorist Squad (ATS), Gujarat in respect of offences punishable under sections 120B IPC, 121 IPC, 121A IPC, 122 IPC, 307 IPC, 186 IPC, 24 of the IPC, vide C.R. No. 5 of 2005 of ATS Police Station. The said case was investigated into by accused No. 4 Mukeshbhai Parmar, working as Dy. Superintendent of Police, ATS Gujarat, at the material time, who filed an abated Summary Report.

One Rubabuddin-brother of the deceased Sohrabuddin-addressed a letter to the Hon''ble the Chief Justice of India alleging that Sohrabuddin was in reality abducted from Andhra Pradesh and killed by Gujarat Police, and that Sohrabuddin''s wife Kausarbi was also missing.

The Supreme Court of India directed the Gujarat police to investigate into the matter, pursuant to which the matter was inquired into, vide Preliminary Inquiry No. 66 of 2006. On the basis of the findings of the preliminary inquiry conducted, investigation of the case was taken over by CID (Crimes) Gujarat. After completion of investigation, the CID (Crimes) Gujarat Police filed a charge-sheet on 16 January 2007 against 13 Police Officers i.e. accused Nos. 1 to 13, in the Court of Chief Metropolitan Magistrate, Ahmedabad. The said Rubabuddin, was apparently not satisfied with the inquiry that was going on, and had filed a Writ Petition bearing No. 6 of 2007 before the Supreme Court of India on 22 January 2007. By an order dated 12 January 2010 passed in the said petition, Their Lordships of the Supreme Court of India directed the CBI to investigate into the matter of the said fake encounter of Sohrabuddin and the missing of his wife Smt. Kausarbi.

After investigation, the CBI collected some further material and implicated some more persons, in addition to the 13 accused against whom charge-sheet had been filed. These newly added accused persons included Shri Amitbhai Shah (accused No. 16), who was then the Home Minister in the State of Gujarat.

By an order dated 27 September 2012 passed in Criminal Appeal No. 1503 of 2012 with Transfer Petition (Criminal) No. 44 of 2011, Their Lordships of the Supreme Court of India transferred the said case to Mumbai. After the transfer, the applicant, by the present application, has approached this Court praying for his release on bail.

I have heard Mr. S.S. Kulkarni, the learned Counsel for the applicant, Mr. H.S. Venegavkar, the learned Counsel for the respondent No. 1/CBI, and Mrs. Shilpa Gajare-Dhumal, the learned APP for the State.

Before proceeding to discuss the merits of the application for bail made by the applicant, it must be observed that there is sufficient and satisfactory material in the charge-sheet to show that a conspiracy to kill Sohrabuddin had been hatched by certain Police Officers from Gujarat, and certain Police Officers from Rajasthan, at the instance of some political leaders. There is sufficient material to show that the story of the encounter was false and that actually Sohrabuddin was killed, as preplanned. There is also sufficient material in the charge-sheet to indicate that a false report that he had died in an encounter was lodged, as preplanned, that this report was dishonestly accepted as true, and the case was closed as an abetted summary. That there is no material to support these basic features of the prosecution case, has not even been suggested in the course of arguments.

The prayer for bail is canvassed basically by claiming that there is no sufficient material to show the involvement of the applicant in the alleged offences. Even some other accused in this case who had applied for bail had not challenged the broad and basic features of the prosecution case, but had restricted themselves to the role attributed to those accused. Same has been done by the present applicant also.

The applicant is said to be involved in the conspiracy of killing Sohrabuddin, and even his wife Kausarbi. He is alleged to be a conspirator who has been involved in the matter right from the beginning till the end i.e. till the disposal of the dead body of Kausarbi.

What is the role attributed to the applicant in the alleged offences, may now be examined. It may be recalled that Sohrabuddin, his wife Kausarbi and the said Tulshiram Prajapati were abducted from Andhra Pradesh and brought to Ahmedabad. The applicant, at the material time was working under the accused No. 4 Mukeshbhai Parmar, the then Dy. Superintendent of Police, ATS Gujarat State. The allegation against the said Parmar and the applicant is that when Sohrabuddin and Kausarbi were brought to Ahmedabad by two separate vehicles, the said Mukeshbhai Parmar was already present there with the present applicant waiting at Koba Circle, Gandhi Nagar. The accused No. 4 Mukeshbhai Parmar and the applicant guided the way to the vehicle in which Sohrabuddin and his wife had been brought and took them to Disha Farm, which had already been procured by the accused No. 4-Mukeshbhai Parmar. Sohrabuddin and Kausarbi were detained in this farm and that while they were present applicant had also visited the same.

The applicant is also alleged to be present at the time of the actual incident of firing at Sohrabuddin. It was planned that Sohrabuddin should be shown as having come on a motorcycle, and that on being stopped by the police, he fired upon the police; and that the police fired in self defence, due to which Sohabuddin died. Though there is no allegation of the applicant himself having fired at Sohrabuddin, there is an allegation. that he was very much present at the time and place of firing along with the other Police Officers, who actually did the firing. The applicant is also alleged to be involved in the killing of Kausrabi. He is alleged to have brought the dead body of Kausarbi and of having made arrangements to burn the same secretly in village Ilol.

The accused No. 4 Mukeshbhai Parmar had also applied for bail, but his application was rejected by me. (Criminal Bail Application No. 1670/12 decided on 20 February 2013). What is the nature of material against accused No. 4 Mukeshbhai Parmar, has been discussed in the order rejecting the said application. Much of the material which has been held to be against the accused No. 4 Mukeshbhai Parmar is against the present applicant also. The material against the applicant is found in the statements of Girishbhai Patel, Bhailal Rathod, one Nathuba Jadeja, one Vijay Rathod and one Jahir Ghanchi.

Girishbhai Patel is the owner of Dish farm house, where Sohrabuddin and Kausarbi were taken after they had been brought to Ahmedabad. They both were detained in this farm for some time. It is clear from the statement of Girishbhai Patel that the farm had been procured from him by the accused No. 4 Mukeshbhai Parmar before Sohrabuddin and Kausari were brought to Ahmedabad. When they were brought to Disha Farm house by the accused No. 4 Mukeshbhai Parmar, the applicant had also accompanied him. It also appears that even in the absence of Mukeshbhai Parmar, the applicant had visited the said farm, and that as a matter of fact, even Girishbhai Patel was not allowed to enter inside the Disha Farm house. Girishbhai''s statement further indicates that as the Court Commission was to visit the said farm house on the next day, he made inquiries whether the couple brought by the police was still there, and his Mehtaji informed him that the man was taken out, but the woman was still inside. When Girishbhai went to his farm house, the applicant was there. Girishbhai told him that the Court Commission had to come to Disha farm house and that as such, the lady who was kept in custody there, be shifted out of the farm house. The applicant then told Girishbhai that he would talk to his Seniors, and later, the lady-Kausarbi-was taken away. Out of the two persons who took her away, one was the applicant.

Bhailal Rathod is a police driver, who was at the material time, attached to ATS Gujarat, and was working as a driver of Maruti 800 motor car of the accused No. 4 Mukeshbhai Parmar. His statement makes it clear that when accused No. 4 Mukeshbhai Parmar had been waiting for the arrival of Sohrabuddin at Koba Circle and when he led the police party that had brought Sohrabuddin and Kausarbi to Disha Farm house, the applicant was also very much present with Mukeshbhai Parmar all the time. It also appears from his statement that on 25 November 2005, it was the applicant along with one police constable who had picked up Sohrabuddin from Arham house, and then taken him to accused No. 4 Mukeshbhai Parmar who was also present there; and that from that place, Sohrabuddin was taken to the place where he was fired at. Bhailal Rathod''s statement further indicates that after Sohrabuddin was fired at, and was lying in an injured condition, it was the applicant who with the help of PI Dhabi-accused No. 5-put him in a car and took him to civil hospital. Thus, not only the presence of the applicant during all important happenings right from bringing Sohrabuddin to Ahmedabad till his fake encounter, but his active participation in the various incidents, is also clearly indicated. The statement of Nathuba Jadeja, another police driver attached to ATS Ahmedabad, at the material time, corroborates the version of Bhailal Rathod in all material particulars. So far as the applicant is concerned, Nathuba''s statement indicates that the applicant along with accused No. 4 Mukeshbhai Parmar were waiting at Koba Circle, and then led the police party who had brought Sohrabuddin and Kausarbi to Disha farm house. His statement also indicates that the applicant was very much present at the time and place, when and where Sohrabuddin was fired at.

The role played by the applicant does not seem to have ended even after the fake encounter of Sohrabuddin. He appears to be involved in the death of Kausarbi also. Though it is not clear as to by whom and under what circumstances, and when and where exactly Kausarbi was killed, that she had been detained by accused No. 4 Mukesh Parmar and the applicant, is clear. From the statement of Nathuba Jadeja, it appears that on 28 November 2005, the dead body of Kausarbi was brought to a particular place in a jeep of ATS which was being driven by the applicant. When and where the body had been kept in the jeep is not clear, but the least that can be said is that the applicant had brought the dead body to the place where it was burnt. The applicant had played an active role in taking the body to that place, arranging for the firewood and had taken an active part in the disposal of the dead body. After Kausarbi was burnt, the ash and bones were carried by the applicant and one Chavan and disposed of.

It is thus, clear that the applicant is seen to be involved in the conspiracy right since the beginning. He has played several'' important overt acts that took place in pursuance of the conspiracy. Even as per the original bogus First Information Report registered vide C.R. No. 5 of 2005 of ATS Police Station, the presence of the applicant on the scene is very much indicated.

The main plea taken on behalf of the applicant is that the applicant is a Junior Police Officer, and since the prosecution case itself is that the conspiracy was hatched at a very higher level, and that the higher Police Officers while acting at the instance of political leaders had decided to kill a person, the role of the applicant in the matter is secondary. It is not possible to accept this contention in so far as it intends to suggest that the Court should take a lenient view towards the applicant, and release him on bail. Though the role of some of the accused in the matter appears to be more direct, more serious and though a greater degree of criminality would be attached to them, it cannot be said that the role played by the applicant is not significant or that his involvement in the conspiracy to kill Sohrabuddin is not disclosed from the police report.

While considering the grant of bail, the nature of offence, undoubtedly, needs to be kept in mind. Here is a case where the Police Officers, at the instance of political leaders, decided to kill a person and planned properly how to show that it was an encounter. A totally different picture as regards the death was attempted to be given as had been preplanned, and that in process, image of some political leaders was also attempted to be enhanced. It was a very ambitious plan of eliminating Sohrabuddin who was being too troublesome for some wealthy and influential people who had approached political leaders, thus satisfying the said wealthy and influential people as also the political leaders, and also at the same time, of enhancing the prestige, popularity and importance of the concerned political leader.

By linking Sohrabuddin with the Pakistani. Agencies, it was, in all probability, expected that the matter could be hushed up easily as there would be no serious demand of any probe into the killing. The matter came to light only because Rubabuddin chose to write a letter to the Hon''ble The Chief Justice of India.

The facts of the case are rather gross and once it is shown that the applicant was one of the conspirators, and has also played an active part in pursuance of the conspiracy, it does not appear proper to release him on bail.

It is true that the applicant is in custody for a period of about 6 years, and that the trial has not yet commenced. This would undoubtedly be a factor which would weigh in favour of grant of bail, but such factor cannot be conclusive. It is to be considered with all other relevant factors. Apart from the heinous nature of the offence, and the active participation of the applicant therein as discussed above, the punishment that would be inflicted on the applicant in the event of his found guilty is also a factor to be taken into consideration particularly when the plea to release him on bail is put forth mainly on the ground of his long pretrial detention. In the facts and circumstances of the case, I do not think it fit to release the applicant on bail. It may also be observed that the trial has already been ordered to be expedited.

Application is rejected. Liberty to the applicant to apply afresh for bail, should the trial be not over within the time stipulated by this Court while deciding the Bail Application No. 1670 of 2012.