Encounter deaths

‘Failure of justice’: Former Bombay HC judge raises doubts over past hearings in Sohrabuddin case

Justice AM Thipsay wants the High Court to take a look at the case again.

Several aspects of the hearings of the Sohrabuddin Sheikh fake encounter case are “contrary to common sense” and point to the “failure of justice”, a former Bombay High Court judge has told The Indian Express.

Justice Abhay M Thipsay (pictured above), who retired as an Allahabad High Court judge in 2017, had ruled on four bail applications in the case, allowing bail to two of the accused in 2013 and 2014.

The Bombay High Court must take a look at the case again and “should exercise powers of revision and examine all these orders whether they are proper or not”, he said in an interview published on Wednesday.

Thipsay said he had started reflecting on the case and revisiting the court orders after suspicions were raised over the death of Judge Brijgopal Harkishan Loya, who was hearing the case in 2014.

“This is failure of justice and of the justice delivery system,” Thipsay said in the interview published on Wednesday. “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 of officers are not discharged but senior officers are discharged though the nature of material against them is the same.”

Out of 38 accused in the case, 15 have been discharged, including Bharatiya Janata Party President Amit Shah. Shah was the home minister of Gujarat when Sheikh, a wanted criminal, and his wife Kausarbi were allegedly shot dead in police custody in November 2005.

Vanzara’s release

Thipsay said he was “pained” that a Central Bureau of Investigation court discharged accused former Gujarat Inspector General of Police DG Vanzara, even though an order by him in 2014 had said that there was a prima facie case against him. He said he had allowed Vanzara bail only because the Supreme Court had given bail to two other accused.

“I was not very comfortable in granting bail to Vanzara but I had to grant it because of the Supreme Court order,” the former High Court judge said. “However, in my order, I made it clear that there was a prima facie case against him...and that there is a very heinous crime also.”

Thipsay said the Supreme Court order had “ignor[ed] the gravity of the offence, [and] the existence of a prima facie case”. Still, he had to allow Vanzara bail because “even if the view taken by the Supreme Court is thought to be wrong...the High Court will have to take the same view in the same case”, he said.

Inconsistencies, witnesses turning hostile

The retired judge pointed out inconsistencies in the hearings, and said it was “suspicious” that some “superior officers” were treated favourably. He said though the trial court had found reason to believe that Sheikh was abducted and killed in a fake encounter, top officers such as Vanzara and former IPS officer Dinesh MN had been discharged. “You mean to say a sub-inspector abducted him from Hyderabad and brought him to a different state?” he asked.

Thipsay also found it suspicious that the accused in the case wanted the media to be barred from publishing proceedings of the case. This was “surprising” because an open trial is the “best sort of protection for an accused”, he said. “The question is how could the accused feel safe when the public would not know what was happening in the courtroom?” Thipsay said.

On November 29, 2017, the special Central Bureau of Investigation court had barred the media from covering the trial proceedings, but the Bombay High Court struck down this order on January 24.

On witnesses turning hostile in the court, Thipsay said they could possibly have been “bribed, pressured or threatened”. On January 25, media reports had said that 27 of the 40 prosecution witnesses in the case have turned hostile over the past two months.

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