Former Judge of Bombay High Court, Justice Abhay M. Thipsay, who heard four bail applications of accused in the Sohrabuddin Shaikh alleged fake encounter case, has now asserted that the orders of discharge passed in the case need to be re-examined.
He had granted bail to DG Vanzara, an accused in the alleged fake encounter case of Sohrabuddin Shaikh, Kausar Bi and Tulsiram Prajapati, admitting that it was done in light of an order by the Supreme Court, as others in the case were granted bail.
In an interview to The Indian Express, Justice Thipsay said that the controversy surrounding CBI Special Judge Brijgopal Harkishan Loya’s death prompted him to examine various orders passed by him and other Judges in the matter. On such perusal of the orders, he said that he came across several "unnatural things" and that there is something “suspicious” and “contrary to common sense” in the proceedings.
On Wednesday, Speaking to the media, including LiveLaw, Justice Thipsay gave a detailed reasoning for questioning the discharge orders in the said case.
Failure of the Justice Delivery System
The system is failing somewhere, these discharge orders need to be subjected to scrutiny by higher courts. Now I have been following the controversy over judge Loya’s death, some people were saying that the death was unnatural but there are other aspects in the case. Some 15 of the accused were discharged but I knew there was a prima facie case against them since I had an occasion to deal with some their bail applications in the higher court. Then I read some of the orders and I realized that bail applications were consistently rejected by different courts. Some were rejected by Gujarat courts, some by the Supreme Court and some bail applications were allowed. But the role attributed to every accused is not uniform and so many accused are there and even as per the prosecution, role of some of the accused is limited. Then sometime the material to substantiate against the accused is different, so these considerations are there in every case.
But those who were not granted bail for so many years, even they were discharged. This initially started when Supreme Court granted bail to Rajkumar Pandiyan and BR Chaubey only on the ground of prolonged pre-trial detention and no prospects of trial commencing immediately. Now, bail is a matter of discretion, based on that order other accused were granted bail by different judges of the Bombay High Court, including myself, so that is fine. But to say that there is no prima facie case is unusual. Higher courts have previously denied bail to many of these who got discharged, which as common sense suggests, means that there was a prima facie case, but for the trial court to say there is no prima facie case is unusual.
Further, the length of the order is also unusual, the meticulous analysis which is done, as if he writing a judgment with the object of finding someone guilty or innocent. Usually, at the stage of charge you only have to see whether there is a ground for proceeding, means whether you are going to hold a trial, whether you are allowing witnesses to be brought and giving an opportunity to the prosecution to prove what they say, ultimately, they may fail that is a different thing. But if you discharge it means that you don’t even feel like asking the accused whether you are guilty or not guilty. So if even that case is not there against you and you still fail to get bail for 5 years or 7 years, then that is absurd according to me.
Amit Shah’s discharge
Amit Shah was already granted bail by the time the bail applications came before me, so I had no occasion to examine the case vis-à-vis him. But I have a faint idea, the prosecution said that it (encounter) was done by Vanzara and others at his (Shah’s) instance. But since I did not examine the evidence against him, it is not proper to comment. I was articulating my views regarding accused against whom I knew that there was a prima facie case in my opinion.
HC can examine orders suo motu
In a matter of extrajudicial killings - you need sanction. The high court has the power to examine orders suo motu. They can be set aside. Constitutional powers also won't be an impediment. The high court also has powers to direct framing of charges against those accused. In the Alister Pereria case, the sentence was increased suo motu.