The CBI's decision not to challenge the discharge granted to BJP president Amit Shah in the Sohrabuddin Sheikh alleged fake encounter case in 2014 was a "conscious" and "reasonable" move, the agency told the Bombay High Court Wednesday.
Seeking dismissal of two Public Interest Litigations (PILs) questioning the CBI's decision, the central agency said the pleas are "politically motivated" and "publicity stunts".
The petitioner's counsel, however, argued that the CBI had changed its stand on Amit Shah after the change of government at the Centre in 2014.
Central Bureau of Investigation (CBI) Additional Solicitor General Anil Singh told the court that the investigating agency had studied the trial court's order granting discharge to Mr Shah as well as various subsequent orders of appellate courts upholding the same.
Two PILs were filed in the HC urging it to ask the CBI why it had chosen not to challenge Amit Shah's discharge, though the agency had filed revision applications against the discharge of two other persons in the case.
A bench of Justices Ranjit More and Bharati Dangre Wednesday heard the PILs, filed by the Bombay Lawyers' Association (BLA) and a local journalist.
The bench has reserved its order.
A special CBI court had in 2014 discharged Mr Shah in the case of alleged fake encounter killing of Sohrabuddin Sheikh in 2005.
"After going through these orders (of the trial court and of appellate courts), we decided that the order of discharge did not require any judicial review and hence, we took a conscious decision to not file any applications challenging Shah's discharge from the case," Singh said.
He made these submissions while opposing the two PILs.
Appearing for the BLA, senior advocate Dushyant Dave urged the court to intervene in the case.
He argued that the CBI had been roped in by the Supreme Court to probe the killings of Sheikh, his wife Kausar Bi, and their aide Tulsiram Prajapati because the top court had reposed its trust in the independent agency. Hence, the CBI should have been impartial and treated all accused persons in the same manner. Why did it then challenge the discharge granted to police officers N K Amin and Dalpat Singh Rathod, but went quiet in Shah's case?" Mr Dave questioned.
He said the CBI had opposed the discharge plea filed by Amit Shah before a special court in the city in April 2014, but changed its stand after Mr Shah was discharged in December 2014.
"They had called him (Shah) one of the main conspirators in the case at that time. However, in December 2014, Amit Shah was granted discharge in the case and the CBI changed its stand on his role.
"That is because the general elections took place and the government at the Centre changed. But, isn't the CBI supposed to be impartial irrespective of who is in power at the Centre?" Mr Dave asked.
Countering Mr Dave, Amit Singh said there was no law that makes it must for the CBI to file appeals or revision applications in case of every discharge.
He urged the bench to dismiss the pleas saying that the same were "politically motivated" and that they were"publicity stunts".
Amit Singh argued that since Mr Shah had been granted a discharge by a special CBI court in December 2014, several pleas challenging the same were filed in the HC, but they were either withdrawn or dismissed.
"The SC too had upheld the dismissal of several such pleas challenging Shah's discharge, and therefore there was no need for the Bombay HC to entertain the above PILs," Singh argued.
He informed the bench that Shah's discharge was first challenged in Bombay HC through a revision application filed by Sohrabuddin Sheikh's brother Rubabuddin, which he withdrew on October 5, 2015.
A single-judge bench of the Bombay high court had allowed Rubabuddin to withdraw the application on November 23, 2015, after it was convinced that he was doing so voluntarily.
Soon after, one Rajesh Kamble filed a revision application against the discharge granted to Amit Shah, in his capacity of being an "alert citizen".
The HC, however, dismissed his plea on October 21, 2015 questioning his locus standi (his right, or the capacity in which he could have filed the plea) in the case.
A writ petition was then filed by social activist Harsh Mander in the HC challenging the discharge and questioning withdrawal of the application by Rubabuddin.
That plea too was dismissed by the HC and the dismissal was upheld by the Supreme Court in August 2017.
Sohrabuddin Sheikh and Kausar Bi were killed in an alleged fake encounter in 2005 by the Gujarat police.
Prajapati was killed in another such encounter in 2006 by the Gujarat and Rajasthan police.
Of the 38 people charged by the CBI in the case, 16, including Shah and all senior officers of Gujarat and Rajasthan police, have been discharged in the case by the trial court and the Bombay HC.
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