[Also look up: 'I have seen the discharge orders… HC should examine these
orders: Justice (retd) Abhay M Thipsay on Sohrabuddin case
Almost a year after retirement, the judge says that the controversy
surrounding the death in 2014 of special CBI court judge B H Loya, has
prompted him to examine various orders passed by him and other judges in
the matter.' at <


Failure of justice system in Sohrabuddin encounter case, Bombay High Court
should relook: Ex-judge Abhay M Thipsay
Sohrabuddin case: Justice Thipsay, who ruled on four bail pleas in case,
flags: ‘selective discharge of high-profile accused, abrupt transfers,
questions over bail, pressure on witnesses to turn hostile’.

Written by MAYURA JANWALKAR , Ruhi Bhasin |

Mumbai | Updated: February 14, 2018 10:28 am

 Failure of justice system in Sohrabuddin case, High Court should relook:
ex-judge Abhay M Thipsay Sohrabuddin case: Retired Bombay High Court Judge
Abhay M Thipsay said the HC must exercise its powers of revision, even
suo-motu if necessary, to relook at the case. (Express Photo/Pradip Das)

The way several high-profile accused in the Sohrabuddin Shaikh alleged fake
encounter case were discharged, the “absurd” inconsistencies in the legal
process, signs of witnesses under pressure or threat, evidence of
“mischief” — all point to the “failure of justice and of the justice
delivery system”.

These are among the series of observations made by Justice Abhay M Thipsay,
a former judge of the Bombay High Court who ruled on four bail applications
in the case, in an interview to The Indian Express. Speaking out for the
first time on the case since he retired last year as judge of the Allahabad
High Court in March 2017, Justice Thipsay said the Bombay High Court must
exercise its powers of revision, even suo-motu if necessary, to relook at
the case.

Interview | There are many unnatural things that I saw when I started
looking at the orders

Describing as “absurd” the inconsistencies he found in orders passed by the
special CBI court currently hearing the case in Mumbai, Thipsay said the
court believed there was an abduction and a staged encounter but still
discharged senior police officers. Several aspects of the case raise
suspicion, he said, and are “contrary to common sense.”

Selective discharge of senior officers

A number of accused were discharged by observing that the evidence against
them is weak but on the same evidence, the trial court found there is a
case for proceeding against some of the accused. “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,” said
Justice Thipsay.

Read | All accused should be present in court from today, says CBI judge

“You believe that he (Shaikh) 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 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 (Shaikh)? You mean to say a sub-inspector abducted him
(Shaikh) 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,” he said.

Also Read | No witness has spoken about threat, sought protection, CBI
tells Bombay HC

“These orders need to be scrutinised properly before the appropriate fora,
and the High Court should look into it,” he said. “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,” said Justice Thipsay.

Failure of justice system in Sohrabuddin case, Bombay High Court should
relook: ex-judge Abhay M Thipsay Justice Abhay Thipsay at his office in
Khar on Friday. He said that he “started reflecting on the case owing to
the controversy” related to the death in 2014 of CBI judge B H Loya who was
hearing the matter. (Express photo/Janak Rathod)
Questions over grant of bail

Fifteen of the 38 accused have been discharged in the case, which is being
heard by a CBI court in Mumbai. Those discharged include BJP president Amit
Shah, who was then a Gujarat Minister of State for Home Affairs and, Gulab
Chand Katariya, then Rajasthan home minister, apart from Vanzara and

With 30 witnesses in the ongoing trial of 22 accused turning hostile since
November 2017, Justice Thipsay said, “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.”

Read | Witnesses are turning hostile, what protection, Bombay HC asks CBI

As a judge of the Bombay High Court, Justice Thipsay heard the bail
applications of Vanzara, and M Parmar, former DySP, of Gujarat’s
Anti-Terrorism Squad; Narendra K Amin, DySP, Ahmedabad Crime Branch; and B
R Chaubey, sub-inspector, Gujarat Police. He rejected two and granted bail
to Amin in 2013 and Vanzara in 2014.

READ | Here is list of 15 discharged so far

Justice Thipsay said he was reluctant to grant bail to Vanzara but the
Supreme Court had already granted bail to other accused in the case on
grounds of prolonged incarceration. Hence, he said, a departure from the
view of the apex court would not be proper exercise of judicial discretion
or discipline.

“I was very uneasy because I knew the facts of the case roughly as I had
dealt with bail applications of some of the accused. Fifteen of the 38
accused had been discharged. I was not very comfortable in granting bail to
Vanzara but I had to grant it because of a Supreme Court order granting
bail to co-accused Rajkumar Pandiyan and (B R) Chaubey. However, in my
order, I made it clear that there was a prima facie case against him
(Vanzara). That is why I am particularly pained because they (trial court)
did not pay heed to that. I said there is a prima facie case and that there
is a very heinous crime also,” he said.

Justice Thipsay said that he “started reflecting on the case owing to the
controversy” related to the death in 2014 of CBI judge B H Loya who was
hearing the matter. “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,” he said.

Hasty, unexplained transfers

What should be examined, said Justice Thipsay, is the transfer of special
CBI court judge J T Utpat, Loya’s predecessor, in June 2014 and Loya’s
appointment as special CBI court judge, after being appointed on the
registry of the Bombay High Court.

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. 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,” he said.

In 2012, at the time of transferring the fake encounter case from Gujarat
to Maharashtra, the Supreme Court had directed the administrative committee
of the Bombay High Court to ensure that the trial be conducted by the same
judicial officer from beginning to end.

Why the need for secrecy?

Justice Thipsay described the media gag order issued last November by
special CBI judge S J Sharma presiding over the trial as “very surprising”
— the order was 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.

Failure of justice system in Sohrabuddin case, Bombay High Court should
relook: ex-judge Abhay M Thipsay Sohrabuddin Shaikh and his wife Kausarbi.
The case dates back to November 2005 when Shaikh was said to have been
travelling in a Sangli-bound bus from Hyderabad along with his wife
Kausarbi and associate Tulsiram Prajapati. A police team allegedly chased
the bus and forced the three to alight and eventually took them to
Ahmedabad where Shaikh was killed. Kausarbi, who was a witness to the
incident, was also killed but the investigators were never able to trace
her remains. Prajapati was also killed in 2006.

Of the 38 accused in the case initially named by the CBI, the CBI court
framed charges including murder, criminal conspiracy, destruction of
evidence against 22 persons with the High Court having stayed the framing
of charges against IPS officer Vipul Aggarwal.

Besides the trial in the CBI court, the Sohrabuddin case is the subject of
cases in the High Court and the Supreme Court, too. Three revision
applications filed by Sohrabuddin’s brother Rubabuddin challenging the
discharge of Vanzara, Dinesh and Pandiyan are before the Bombay High Court.
Also before the High Court are two revision applications filed by the CBI
challenging the discharge of Rajasthan Police’s Dalpatsingh Rathod and
Amin. There is also Aggarwal’s petition. The Supreme Court is hearing five
petitions seeking an independent inquiry into the death of judge Loya.

Before his elevation to the Bombay High Court, Justice Thipsay served as a
judge of the City Civil and Sessions Court and presided over the Vadodara
Best Bakery retrial, a case also transferred to Mumbai from Gujarat. In
February 2006, he convicted nine and acquitted eight accused in the case.
Fourteen people were killed when a mob set fire to Best Bakery on the
outskirts of Vadodara on March 1, 2002, during the Gujarat riots.

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