Fake encounter

Not just Judge Loya's death: ‘Absurd inconsistencies’ in the Sohrabuddin Sheikh fake encounter case

There is something suspicious in the way high-profile accused have been discharged and witnesses have turned hostile, says former Bombay High Court judge.

Fifteen of the 38 accused have been discharged, 30 witnesses have backtracked on their statements, questions have been raised on the death of a judge who was hearing the case after the abrupt transfer of his predecessor, and now a former High Court judge says all is not well in the manner in which the trial in the Sohrabuddin Sheikh fake encounter case is proceeding.

The Supreme Court is currently hearing petitions seeking an investigation into the death of Maharashtra’s CBI special court judge Brijgopal Harkishan Loya. When he allegedly died of a heart attack on December 1, 2014, Loya was handling the Sohrabuddin Sheikh extrajudicial murder case, which involved high-profile politicians like Bharatiya Janata Party president Amit Shah and senior police officers of the states of Gujarat and Rajasthan.

While the apex court is seized of this matter, the trial in the 2005 fake encounter case, at a special CBI court in Mumbai, has seen a series of fast-paced developments since the BJP took charge of the government at the Centre in May 2014. The CBI special court’s trial judge, JT Utpat, who was in charge of the case, was transferred on June 25, 2014. (Meanwhile, the BJP also came to power in Maharashtra in October 2014.) Loya died in Nagpur on December 1. Loya’s replacement, MB Gosavi, after hearing Amit Shah’s discharge petition from December 15 to 17, 2014 , dropped all charges against the BJP leader on December 30, 2014 and discharged him from the case on December 30, 2014. It was followed by multiple discharge of accused persons even before the trial began and key witnesses turning hostile ever since.

‘Absurd inconsistencies’

On Tuesday, former Bombay High Court Judge Abhay M Thipsay flagged the “absurd inconsistencies” now evident in the trial process. In an interview to the Indian Express, Thipsay said despite the special CBI court agreeing that there was an abduction and staged encounter, it chose to discharge 15 of those accused in the case, including Amit Shah. There is something “suspicious” and “contrary to common sense” in the proceedings, he added.

“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,” the former judge said. “There must be some reason for the hostility, such as witnesses being bribed, pressured or threatened.”

Kauserbi and Sohrabuddin Sheikh.
Kauserbi and Sohrabuddin Sheikh.

While the details of Sheikh’s death in 2005 have been elaborated in an earlier article, it is important to highlight that the Supreme Court had noted that attempts were made by the investigating agency of the State of Gujarat to mislead the courts, which is why it moved the case out of Gujarat to Maharashtra in 2012. It had earlier transferred the case to the CBI in 2010.

The CBI in its chargesheet had alleged that Sheikh had the potential to expose an extortion racket run by senior Gujarat police officers who were close to Amit Shah, then minister of state for home in Gujarat. The accusation was that Shah ordered Sheikh’s killing. Shah was included as accused number 16 in the case. Shah was arrested in 2010. The Gujarat High Court released him on bail three months later.

Three senior police officers were included as accused persons in the chargesheet. They were DG Vanzara, then the deputy director general of police, Anti-Terrorism Squad, Gujarat; S Rajkumar Pandian, superintendent of police, Anti-Terrorism Squad, Ahmedabad, and MN Dinesh, superintendent of police, Udaipur, Rajasthan.

Amit Shah’s discharge

The law relating to discharge applications is well settled. Under Section 227 of the Code of Criminal Procedure, a judge can discharge an accused person from the case after recording the reasons for there being insufficient grounds to proceed against the accused.

Discharges are rare, especially in cases that involve criminal acts such as murder, and in which high-profile persons, including senior police officers, are involved. Given the importance that Section 227 holds in the delivery of justice, the higher judiciary has framed guidelines on what a judge should do when an application for discharge is filed.

Discharge applications are admitted when the court proceeds to frame charges against the accused. According to the Delhi High Court in 2015, the judge has the powers “to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out”. This usually means that during the discharge application hearings, the judge is expected not to pass value judgement on statements of witnesses, who will be examined and cross-examined during the trial, but merely satisfy themselves on whether there was “grave suspicion” against the accused. It is not necessary that the charges be proved beyond doubt at this point.

Amit Shah and his son Jay celebrate his arrival home after his release from Sabarmati Central Jail in Ahmedabad on October 29, 2010. (AFP/Sam Panthaky).
Amit Shah and his son Jay celebrate his arrival home after his release from Sabarmati Central Jail in Ahmedabad on October 29, 2010. (AFP/Sam Panthaky).

Amit Shah was discharged from the case on December 30, 2014, within a month of Judge Loya’s death. The judge who replaced Loya dismissed much of the evidence as hearsay. This included a statement by Gyanchand Raiger, who was an additional director general of police in Gujarat.

It was alleged that in November 2006, Amit Shah convened a meeting of officers dealing with the case and expressed his displeasure at the manner in which investigating officer VL Solanki was proceeding. There were also the statements of the Patel brothers, businessmen at whose office Sheikh’s men allegedly fired upon in 2004. The allegation was that Sheikh did this following instructions from a Gujarat police officer called Abhay Singh Chudasama, who ran an extortion racket at the instance of Shah. The Patel brothers claimed that Shah and Vanzara put pressure on them to provide specific statements against Sheikh, something the CBI said was indicative of the fact that Shah knew Sohrabuddin Sheikh. However, the special court dismissed these as of no significance, pointing out that it was “absolutely unnatural and unbelievable that the witness states all the facts almost in ad-verbatim even without much grammatical variations, same as per his earlier statement”. The brothers had given three statements in all on different dates. Curiously, the court also mentioned that even if the CBI’s contentions were accepted, Shah had influence only over the Gujarat police and there was no reason for the Rajasthan police to get involved. It is important to remember that Rajasthan too was ruled by the BJP at that point.

The most significant set of evidence brought forward by the CBI were call records. The agency showed that Amit Shah made calls to the accused police officers during the relevant period, which was curious because a home minister does not usually directly interact with lower-level police officers. In 2010, it was argued that these calls were due to a sensitive abduction case that took place during the same time. This changed in 2014, the accused argued that it was Shah’s style of functioning to be directly in touch with field officers, and that this was the result of the post-Godhra riots of 2002, when law and order became an extremely sensitive subject in Gujarat. “Without the content of actual conversations, no sufficient ground can be considered to proceed against the Accused/applicant to link him with the alleged conspiracy,” the court said, citing a Supreme Court precedent.

However, the question remains whether the judge should have gone into the veracity of the statements of the witnesses and admissibility of evidence produced, as this is something that should have been decided in a trial.

More serious is the fact that the first judge who was hearing the case, JT Utpat, was abruptly transferred to Pune in June 2014, at a time when he was questioning the non-appearance of the then accused Amit Shah, as noted above. The second judge Loya died months after taking over the case on December 1, 2014 and fresh questions have been raised about his death. The third judge MB Gosavi discharged Shah 29 days after Loya’s death, with the CBI’s lawyer spending only minutes to oppose the discharge application. That the CBI decided not to appeal against the discharge tells its own story.

Serious questions

In August last year, Vanzara, Pandiyan and Dinesh, the senior police officers accused in the case, were discharged. In all, 15 of the 38 accused in the case had already been set free even before the trial began.

Justice Thipsay raises significant questions on the discharge of these senior officers.

A number of accused have been discharged by observing that the evidence against them is weak. On the same evidence, however, the trial court found that 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. Abduction is believed. So 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 Vanzara, Dinesh M N (then SP Rajasthan) or Rajkumar 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 and Dinesh). So the suspicion is that superior officers have been treated differently. That is suspicious.

Thipsay also pointed out that the accused were denied bail repeatedly based on the stand of the prosecution. But years later, they have been discharged.

“This is failure of justice and of the justice delivery system. 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.”

The CBI’s role

Sheikh’s brother Rubabuddin has challenged the discharge of Vanzara, Pandiyan and Dinesh before the Bombay High Court. The CBI has challenged the discharge of Rajasthan police constable Dalpat Singh Rathod and Gujarat police officer NK Amin before the same court.

The CBI, significantly, has not challenged Amit Shah’s discharge. Rubabuddin had earlier challenged Amit Shah’s discharge in the Bombay High Court. But after a few hearings, he withdrew his petition. He went on record in later press interviews that he did so under pressure, fearing for his life.

In all, 30 witnesses have turned hostile so far, prompting the High Court to question the government on the security provided for the witnesses. “Is this the seriousness with which the CBI is conducting the trial?” Justice Revati Mohite-Dere remarked on February 12, while hearing the petitions. “What protection are you offering to your witnesses? It is your duty to protect the witnesses, so they can depose fearlessly. You can’t file a chargesheet and not give your witness protection,” she said.

The CBI is expected to oppose a Public Interest Litigation filed by the Bombay Lawyers’ Association against its decision not to contest Shah’s discharge.

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Swara Bhasker: Sharp objects has to be on the radar of every woman who is tired of being “nice”

The actress weighs in on what she loves about the show.

This article has been written by award-winning actor Swara Bhasker.

All women growing up in India, South Asia, or anywhere in the world frankly; will remember in some form or the other that gentle girlhood admonishing, “Nice girls don’t do that.” I kept recalling that gently reasoned reproach as I watched Sharp Objects (you can catch it on Hotstar Premium). Adapted from the author of Gone Girl, Gillian Flynn’s debut novel Sharp Objects has been directed by Jean-Marc Vallée, who has my heart since he gave us Big Little Lies. It stars the multiple-Oscar nominee Amy Adams, who delivers a searing performance as Camille Preaker; and Patricia Clarkson, who is magnetic as the dominating and dark Adora Crellin. As an actress myself, it felt great to watch a show driven by its female performers.

The series is woven around a troubled, alcohol-dependent, self-harming, female journalist Camille (single and in her thirties incidentally) who returns to the small town of her birth and childhood, Wind Gap, Missouri, to report on two similarly gruesome murders of teenage girls. While the series is a murder mystery, it equally delves into the psychology, not just of the principal characters, but also of the town, and thus a culture as a whole.

There is a lot that impresses in Sharp Objects — the manner in which the storytelling gently unwraps a plot that is dark, disturbing and shocking, the stellar and crafty control that Jean-Marc Vallée exercises on his narrative, the cinematography that is fluid and still manages to suggest that something sinister lurks within Wind Gap, the editing which keeps this narrative languid yet sharp and consistently evokes a haunting sensation.

Sharp Objects is also liberating (apart from its positive performance on Bechdel parameters) as content — for female actors and for audiences in giving us female centric and female driven shows that do not bear the burden of providing either role-models or even uplifting messages. 

Instead, it presents a world where women are dangerous and dysfunctional but very real — a world where women are neither pure victims, nor pure aggressors. A world where they occupy the grey areas, complex and contradictory as agents in a power play, in which they control some reigns too.

But to me personally, and perhaps to many young women viewers across the world, what makes Sharp Objects particularly impactful, perhaps almost poignant, is the manner in which it unravels the whole idea, the culture, the entire psychology of that childhood admonishment “Nice girls don’t do that.” Sharp Objects explores the sinister and dark possibilities of what the corollary of that thinking could be.

“Nice girls don’t do that.”

“Who does?”

“Bad girls.”

“So I’m a bad girl.”

“You shouldn’t be a bad girl.”

“Why not?”

“Bad girls get in trouble.”

“What trouble? What happens to bad girls?”

“Bad things.”

“What bad things?”

“Very bad things.”

“How bad?”

“Terrible!!!”

“Like what?”

“Like….”

A point the show makes early on is that both the victims of the introductory brutal murders were not your typically nice girly-girls. Camille, the traumatised protagonist carrying a burden from her past was herself not a nice girl. Amma, her deceptive half-sister manipulates the nice girl act to defy her controlling mother. But perhaps the most incisive critique on the whole ‘Be a nice girl’ culture, in fact the whole ‘nice’ culture — nice folks, nice manners, nice homes, nice towns — comes in the form of Adora’s character and the manner in which beneath the whole veneer of nice, a whole town is complicit in damning secrets and not-so-nice acts. At one point early on in the show, Adora tells her firstborn Camille, with whom she has a strained relationship (to put it mildly), “I just want things to be nice with us but maybe I don’t know how..” Interestingly it is this very notion of ‘nice’ that becomes the most oppressive and deceptive experience of young Camille, and later Amma’s growing years.

This ‘Culture of Nice’ is in fact the pervasive ‘Culture of Silence’ that women all over the world, particularly in India, are all too familiar with. 

It takes different forms, but always towards the same goal — to silence the not-so-nice details of what the experiences; sometimes intimate experiences of women might be. This Culture of Silence is propagated from the child’s earliest experience of being parented by society in general. Amongst the values that girls receive in our early years — apart from those of being obedient, dutiful, respectful, homely — we also receive the twin headed Chimera in the form of shame and guilt.

“Have some shame!”

“Oh for shame!”

“Shameless!”

“Shameful!”

“Ashamed.”

“Do not bring shame upon…”

Different phrases in different languages, but always with the same implication. Shameful things happen to girls who are not nice and that brings ‘shame’ on the family or everyone associated with the girl. And nice folks do not talk about these things. Nice folks go on as if nothing has happened.

It is this culture of silence that women across the world today, are calling out in many different ways. Whether it is the #MeToo movement or a show like Sharp Objects; or on a lighter and happier note, even a film like Veere Di Wedding punctures this culture of silence, quite simply by refusing to be silenced and saying the not-nice things, or depicting the so called ‘unspeakable’ things that could happen to girls. By talking about the unspeakable, you rob it of the power to shame you; you disallow the ‘Culture of Nice’ to erase your experience. You stand up for yourself and you build your own identity.

And this to me is the most liberating aspect of being an actor, and even just a girl at a time when shows like Sharp Objects and Big Little Lies (another great show on Hotstar Premium), and films like Veere Di Wedding and Anaarkali Of Aarah are being made.

The next time I hear someone say, “Nice girls don’t do that!”, I know what I’m going to say — I don’t give a shit about nice. I’m just a girl! And that’s okay!

Swara is a an award winning actor of the Hindi film industry. Her last few films, including Veere Di Wedding, Anaarkali of Aaraah and Nil Battey Sannata have earned her both critical and commercial success. Swara is an occasional writer of articles and opinion pieces. The occasions are frequent :).

Watch the trailer of Sharp Objects here:

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This article was published by the Scroll marketing team with Swara Bhasker on behalf of Hotstar Premium and not by the Scroll editorial team.