In Gujarat Encounter Cases, Language of Bail Orders Belies Claims of Weak Evidence

This week, as Gujarat's "encounter" cop DG Vanzara walked out of the Sabarmati jail in Ahmedabad where he has spent the past eight years, his supporters erupted into noisy celebrations.

With his exit, virtually none of the police officials charged by the Central Bureau of Investigation (CBI) in a series of alleged fake encounters that took place between 2004 and 2006 in the state remain in jail.

The joyous mood that greeted Mr Vanzara, however, seemed to belie the legal reality - he is out on bail with fairly stringent conditions. The trials in the two encounter cases he is charged with - the killing of Ishrat Jahan and three others in 2004, the killing of Sohrabuddin Sheikh and his wife Kauserbi in 2005 and that of Sheikh's associate Tulsiram Prajapati in 2006 - are yet to begin. When they do, it could take years before there is a verdict.

And yet the granting of bail to Mr Vanzara as well as to almost all the other police officers in these cases has lent fresh impetus to their argument that the CBI's evidence is weak, and that bail is only a first step before an inevitable full acquittal. The Gujarat government has even reinstated some of these officers, using their being granted bail as a defence.

But a closer reading of the bail orders suggests that the courts, in varying degrees, have found merit in the CBI's charges.

While granting bail to Mr Vanzara in the Sohrabuddin encounter case in September 2014, the Bombay High Court observed that "the role attributed to the applicant (Vanzara) is quite serious and prominent... there is sufficient material in the chargesheet to support these allegations, and therefore, there exists a prima facie case of serious offences against the applicant."

The court even endorsed the CBI's charge that the Sohrabuddin killing was extrajudicial. The order said, "It is evident that the killing of Sohrabuddin was pre-planned, and it was also pre-planned to show that it was an encounter."

The court made it clear that the sole reason for granting bail to Mr Vanzara was that he had spent seven years in jail without the trial starting, and that several other co-accused in the case had already got bail.

The order of the Special CBI Court in Ahmedabad, which granted bail to the controversial police officer earlier this month enabling him to walk out jail also takes a similar, if milder line.

"It is a very serious and grave crime. It cannot be said that there is no prima facie case against the present applicant (Vanzara)," the order read.

As with the Bombay High Court, the Special CBI Court cites the long period Vanzara spent in jail as well as bail already granted to the other accused as reasons for granting him bail. But it also implies a less damning role to the police officer on grounds that while he has been charged as key conspirator, he was not actually present at the site where Ishrat and three others were gunned down. The "applicant was not a member of the encounter team," it said.

The court's recognition of the strength of the evidence and the gravity of the offences is reflected in their strict bail conditions: Mr Vanzara cannot enter Gujarat except for court hearings, cannot threaten or induce anyone connected to case, has to surrender his passport and so on.

As the Special CBI Court put it, the stringent conditions hope to "strike a balance between the fundamental right of liberty and impact of the same on society at large."

Even in the case of the other senior police officer accused in the Ishrat case, PP Pandey, the bail order doesn't reject the CBI's evidence.

Mr Pandey, like Mr Vanzara, has been accused of conspiring to kill Ishrat and the three others and also of interrogating them while in custody of the police. He was recently reinstated as Gujarat's Additional Director General of Police, Law and Order, after his release from jail.

The Special CBI Court, while granting him bail this month, said, "At this stage, it cannot be said that there is no prima facie case against the present applicant (Pandey)."

The challenge now is whether the CBI will pursue these cases inside and outside court.

Vrinda Grover, lawyer for the Ishrat Jahan family said, "Ever since it was known that there would be a change in the political regime, the CBI seems to not only not argue the bail matters, there are investigations which are yet to be concluded, it has not even bothered to follow up on significant leads made in statements by witnesses, neither is it commencing trials, the prosecution in the Ishrat Jahan case has yet to start. When will all this happen?"