Justice Abhay M. Thipsay said that the Bombay high court should use its powers of revision in the case, as several aspects of it are “contrary to common sense”.
Sohrabuddin Shaikh and Kausar Bi. Credit: PTI
New Delhi: Justice Abhay M. Thipsay, a former judge in the Bombay high court, has raised serious questions about the manner in which several high-profile persons have been exonerated in the Sohrabuddin Sheikh-Kauser Bi fake encounter case. He has said such processes signal that witnesses were under pressure. Besides, the “absurd” inconsistencies in the process and evidence of “mischief” all indicate one thing: the “failure of justice and of the justice delivery system”.
In an interview to Indian Express, Thipsay, who ruled on four bail applications in the case as a high court judge, said that the Bombay high court should use its powers of revision, even if it does so suo moto. The retired judge said that several aspects of the case are “contrary to common sense”.
“You believe that he (Sheikh) was abducted. You also believe that it was a fake encounter. You also believe that he was illegally kept in the farmhouse. And you don’t believe that (D.G.) Vanzara (then DIG Gujarat), Dinesh M.N. (then Rajasthan SP) or Rajkumar Pandiyan (then Gujarat SP) are involved in that. How could the constabulary or inspector-level officers have any contact with him (Sheikh)? You mean to say a sub-inspector abducted him (Sheikh) from Hyderabad and brought him to a different state? When, on the basis of the same material, you say that there is no case against the SPs (Pandiyan, Dinesh). So the suspicion is that superior officers have been treated differently,” Justice Thipsay told the newspaper.
“These orders need to be scrutinised properly before the appropriate fora, and the High Court should look into it,” he continued. “It is unusual that bail is denied to a number of accused for several years and then the court holds that there is no prima facie case against those accused. Lower level officers are not discharged but senior officers are discharged though the nature of material against them is the same.”
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Thirty-eight people were accused in the fake encounter case, of whom 15 – including BJP president Amit Shah, who was then the home minister of Gujarat – have been discharged. Since November 2017, 30 witnesses in the trial have turned hostile. “There are many unnatural things that I saw when I started looking at the orders about how discharge orders have been passed in the case,” the judge said.
During his time at the Bombay high court, Thipsay heard the bail applications of Vanzara, M. Parmar, former DySP of Gujarat’s Anti-Terrorism Squad, Narendra K. Amin, DySP of Ahmedabad Crime Branch, and B.R. Chaubey, sub-inspector, Gujarat police. He granted bail to Vanzara and Amin, and rejected the other two applications, Indian Express reported.
Justice Thipsay. Credit: Allahabad HC website
According to the judge, he started thinking about the case after recent reports on the death of Judge B.H. Loya. “I don’t want to comment on the death but to say it was unnatural would be far-fetched. That, I don’t believe. But Loya’s CDRs (call detail records) should be seen.” What needs to be questioned more, according to Thipsay, are the unexplained and hasty transfers that judges hearing the case witnessed, both the Judge Utpat, who was hearing the case before Loya, and Loya himself.
According to the Indian Express report, “Loya, an Additional Sessions judge since 2011, was appointed as Registrar Judicial II in the Bombay High Court in February 2014. In four months, he was transferred back to the sessions court and appointed special CBI court judge presiding over the Sohrabuddin case.”
“This was too short a period,” Thipsay said. “When a person is appointed in the registry you don’t have plans of immediately sending him back. This is an unusual thing… Before that Utpat was transferred abruptly. Why do I say abruptly? Transfers are made generally after three years unless there are extraordinary circumstances. He had not completed three years.”
The judge also questioned the media gag order issued last November by special CBI Judge S.J. Sharma. This order was later struck down by the Bombay high court. “Usually, a person who is facing prosecution feels safer if it is done in public gaze. Open trial is the best sort of protection for an accused… Here is a case in which the accused made an application praying to the court that the media be prohibited from publishing proceedings of the case. The trial court had passed such an order which was subsequently struck down by the High Court. The question is how could the accused feel safe when the public would not know what was happening in the courtroom? That is very surprising, according to me,” he said.
Thipsay retired as a judge in the Allahabad high court in March 2017. This is the first time he has made a public statement on the Sohrabuddin case.