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1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO. OF 2018 IN THE MATTER OF ARTICLE 226 OF THE CONSTITUTION OF INDIA; AND IN THE MATTER OF ARTICLE 14 OF THE CONSTITUTION OF INDIA; AND

2 - 2 - IN THE MATTER OF ILLEGAL, ARBITRARY AND MALAFIDE INACTION ON THE PART OF THE RESPONDENT NO. 1 IN CHALLENGING ORDER DATED 30/12/2014 PASSED BY SPL. JUDGE, CBI IN DISCHARGE APPLICATION (EXHIBIT-232) IN SESSIONS CASE NOS. 177/2013, 178/2013, 577/2013 & 312/2014. Bombay Lawyers Association, a body registered under the provisions of the Society Registration Act, 1860, having its office at 2A, Ground Floor, Commerce House,

3 , Nagindas Master Road, Fort, Mumbai PAN No: AACAB1244J Tel No.: /17... Petitioner Versus 1. Central Bureau of Investigation BI, 13th Floor, Plot No. C-35A, 'G' Block, Bandra Kurla Complex (BKC), Near MTNL Exchange, Bandra (East), Mumbai Through its Joint Secretary, Zone-I 2. Administrative Committee of the Bombay High Court Through The Registrar General High CourtExtension Building, Mumbai Respondents TO, THE HON BLE CHIEF JUSTICE AND COMPANION HON BLE JUDGES OF BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HUMBLE PETITION OF THE PETITIONERS ABOVENAMED MOST RESPECTFULLY SHEWETH: 1. That the Petitioner states the Petitioner is a body of advocates and it is registered under the Societies Registration Act, 1860.The Respondent Nos. 1 is the Central Bureau of Investigation

4 - 4 - ( CBI ), the prosecuting agency in Sessions Case Nos. 177/2013, 178/2013, 577/2013,312/2014 before the Special Judge, CBI, Mumbai. Respondent No. 2 is the RegistrarGeneral of this Hon ble Court. Both the Respondents are State within the meaning of Article 12 of the Constitution. 2. That the instant Petition is being filed challenging illegal, arbitrary and malafide inaction of the Respondent No. 1 in challenging the Judgment and Order dated 30/12/2014 passed by the Special Judge, CBI, Mumbai in Discharge Application (Exhibit-232) filed by Amit Anilchandra Shah in Sessions Case Nos. 177/2013, 178/2013, 577/2013 and 312/2014. This Petition also challenges the decision of the Administrative Committee of this Hon ble Court of transferring the Special Judge, CBI, Mumbai Shri J.T. Utpat whom the said cases were originally assigned, in contravention of Order dated 27/09/2012 passed by Hon ble Supreme Court. The Respondent No.1 is the premier investigating agency of India. It has public duty to observe rule of law in its action which it has miserably failed. The present petition is being filed to protect public trust and confidence in the Respondent No. 1. Hence, this Petition may be treated as Public Interest Litigation. 3. The Petitioner states that it is established by a group of advocates practicing at Bombay High Court with the primary purpose to undertake activities facilitating improvement in the quality of legal services. It also aims to strive for judicial reforms bringing efficiency and transparency in the functioning of courts by

5 - 5 - involving people outside the confines of the legal profession. Some of the main objectives of the BLA read as under: - To uphold rule of law, promote higher values in legal profession and to preserve and protect independence of judiciary. - To strive for improvement in the institution of judiciary i.e. bar as well as the bench, for attainment of justice economic, political and social through constitutional means. 4. The Petitioner states that forthe first time the Petitioner organized a function to celebrate "National Law Day" on November 26, 2012, at Mumbai. People from all walks of life participated in the event. Shri K. Sankaranayanan, Governor of Maharashtra was the Chief Guest and the Chief Justice of this Hon ble Court Shri Mohit S. Shah presided over the function. In the year 2013 Justice B.N. Srikrishna,former Judge, Supreme Court of India was the Chief Guest at National Law Day. In the year 2014 former Union Law Minister and Sr. Advocate Mr. Ram Jethmalani, was the Chief Guest. Justice J.N. Patel, former Chief Justice of Calcutta High Court presided over National Law Day function. The Petitioner had filed a PIL seeking direction from this Hon ble Court for celebration of National Law Day by the government and educational institutions. In pursuance to same, vide Notification No. F. No /11/2015-VI (E) dated 19/11/2015, Government of India decided to celebrate 26th day of the November as Constitution Day to promote constitutional values among citizens. It is now being celebrated all over India by the

6 - 6 - governments, as well as bar and courts.taking into consideration the problem faced by the judges, court staff, advocates and litigants on account of scarcity of space in the present High Court building which in 150 year old, the President of the Petitioner organization. Mr. Ahmad Abdi hasfiled a PIL for new High Court building with adequate infrastructure in line of Supreme Court and Delhi High Court. The same was taken up by this Hon ble Court and various directions were issued from time to time. Now, State Government has allotted land for construction of new High Court building at Bandra Colony, Bandra East, Mumbai and has promised to the construct the same while redeveloping the Government Colony, Bandra. The PIL is still pending before this Hon ble Court. 5. That the Petitioner states that keeping in view its objectives, the Petitioner has continued its activities by way of organizing seminars, symposiums, debates, conferences, workshops and other like events for the benefit of the legal fraternity which are as follows: o Seminar on "RTI Act in Practice and Supreme Court Judgment: Problems and Prospects". Justice A.P. Shah, former Chief Justice Delhi High Court, Mr. Shailesh Gandhi, former Central Information Commissioner, spoke on the occasion. o "Study Circle" at the Government Law College (GLC), Mumbai, for upgrading skills of advocates particularly young advocates considering the ever-increasing number

7 - 7 - of new laws, various amendments in the existing laws and judgments of High Court and the Apex Court with emphasis on practical aspects. o Seminar on "Use and misuse of power to arrest by the police: Threat to personal liberty". Senior Advocates, Mr. Ram Jethmalani, Mr. Shrikant Bhat, Mr. Amit Desai and Mr. Ashok Mundargi, spoke on the subject. Hon'ble Mr. Justice S.C. Dharmadhikari, Judge Bombay High Court presided over the function. o Publishing a magazine "LAWNAMA" which contain articles written by advocates, judges and other prominent persons on various aspects relevant for improvement of the system dispensation of justice. o Seminar on "Judicial Standard and Accountability Bill, 2010" on February 21, 2014 at Mumbai. Justice A.P. Shah, former Chief Justice of Delhi High Court and presently Chairman of Law commission of India and Sr. Counsel of Bombay Mr. AspiChinoy spoke on the occasion. 6. The factual matrix ofthe present Petition is as under: 7. In November 2005, one Sohrabuddin Shaikh, alleged Lashkar-e- Toiba operative and his wife Kausarbi were killed in an encounter by Gujarat Police. It was alleged that the said encounter was fake. 8. In December 2006, one Tulsiram Prajapati, an eye witness to the said alleged encounter was also killed in an encounter in Chapri

8 - 8 - Village in Banaskantha District of Gujarat. Various Petitions were filed in the Hon ble Supreme Court challenging the encounter the said Sohrabuddin. 9. By the In 12 th January 2010, the Hon ble Supreme Court directed the CBI to investigate the case relating to the killings of Sohrabuddin and his wife Kausarbi. On 23 rd July, 2010,CBI filed Charge-Sheet naming Mr. Amit Shah, the then Home Minister of Gujarat now national president of BJP and 18 others including several police officers, as Accused. Vide its order dated 27 th September 2012, the Hon ble Supreme Court transferred trial of the case from Gujarat to Mumbai. The observations made by the Hon ble Supreme Court regarding prevailing facts and circumstances are worth noting. Hereto annexed and marked as Exhibit- A is a copy of said judgment and order dated 27/09/ As observed by Hon ble Supreme Court, the order (directing the CBI to investigate the killings of Sohrabuddin and his wife Kausarbi) came to be passed after the proceedings regarding to those killings had gone on for over four years, initially on the basis of two letter petitions and subsequently under the Writ Petition (Crl.) No. 6 of 2007 (Rubabbuddin Sheikh v. State of Gujarat). At the beginning, the State of Gujarat stoutly and vociferously denied that the encounter in which Sohrabuddin was killed was stage-managed and it was only later that it came around to accept that it was actually so and his wife Kausarbi too was killed while she was in illegal police custody and her body was disposed of in a manner as to make it untraceable. Some sort

9 - 9 - of an investigation was made by Gujarat Police and a chargesheet was submitted on against thirteen (13) persons who were members of the Anti-Terrorist Squad, Gujarat Police and the Special Task Force, Rajasthan Police. 11. On behalf of the writ petitioner (Rubabbuddin Sheikh, the brother of the slain Sohrabuddin), however, it was submitted that the charge-sheet was deceptive and was designed more to cover up rather than uncover the entire conspiracy behind the murder of Sohrabuddin and his wife. It was pointed out that Gujarat Police had completely ignored the killing of Tulsiram Prajapati in a similar police encounter one year after the killing of Sohrabuddin who was killed simply because he was a witness to the abduction of Sohrabuddin and his wife by the police party. On 30/9/2008 the Hon ble Supreme Court was informed that following the submission of the charge-sheet, even as the matter was under the scrutiny of Supreme Court, the case was hurriedly committed and the trial court had fixed the hearing on the charge on a day-to-day basis. The Supreme Court on that date stayed further proceedings in said Sessions Case No. 256 of 2007 and directed for the records of the case to be put in the safe custody of the Registrar General of the Gujarat High Court. 12. In further proceedings before Supreme Court, the State of Gujarat took the stand that all that was required to be done was done in the matter and there was nothing more for Supreme Court to do. It was argued on behalf of the State that with the submission of the charge-sheet Supreme Court's power and authority to monitor the investigation came to an end and the case came under the

10 exclusive jurisdiction of the Magistrate/trial court who would proceed further on the basis of the charge-sheet submitted by the police. 13. Howevr, Supreme Court felt otherwise. It appeared to the Supreme Court that there were a number of aspects of the case, including the killing of Tulsiram Prajapati that were not addressed at all by Gujarat Police. The State of Gujarat, however, continued to maintain that the killing of Tulsiram Prajapati in the police encounter had no connection with the killings of Sohrabuddin and his wife. That being the position taken by the State it was but natural for the State Police not to investigate any linkages between the killings of Sohrabuddin and his wife on the one hand and the killing of Tulsiram Prajapati on the other. 14. Among the number of reasons that weighed with the Supreme Court to ask CBI to investigate into the killings of Sohrabuddin and his wife, even after the submission of charge-sheet by Gujarat Police, was the trenchant refusal by the State of Gujarat and the State Police to see any connection between the killings of Sohrabuddin and his wife and the killing of Tulsiram Prajapati. In the order dated January 12, 2010 by which the investigation of the case was entrusted to CBI, the Court commented upon the persistent effort to disconnect the Prajapati encounter from the killings of Sohrabuddin and his wife. Further, recounting the many deficiencies in the investigation by Gujarat Police, the Supreme Court also noticed its omission to analyse the call details of the accused that so far as the call records are concerned, it would be evident from the same that they had not been analysed

11 properly, particularly the call data relating to three senior police officers either in relation to Sohrabuddin's case or in Prajapati's case. 15. In light of the above and a number of other acts of omission and commission as appearing from the eight action-taken reports (submitted in the course of hearing of the writ petition) and the Gujarat Police charge-sheet, the Supreme Court asked CBI to investigate the killings of Sohrabuddin and his wife Kausarbi, giving the following directions: 82. Accordingly, in the facts and circumstances even at this stage the police authorities of the State are directed to hand over the records of the present case to the CBI Authorities within a fortnight from this date and thereafter the CBI Authorities shall take up the investigation and complete the same within six months from the date of taking over the investigation from the State Police authorities. The CBI Authorities shall investigate all aspects of the case relating to the killing of Sohrabuddin and his wife Kausarbi including the alleged possibility of a larger conspiracy. The report of the CBI Authorities shall be filed in this Court when this Court will pass further necessary orders in accordance with the said report, if necessary. We expect that the Police Authorities of Gujarat, Andhra Pradesh and Rajasthan shall cooperate with the CBI Authorities in conducting the investigation properly and in an appropriate manner. Hereto annexed and marked as Exhibit- B is a copy of said judgment and order dated 12/01/2010

12 As directed by the Supreme Court, the CBI took up the investigation into Sohrabuddin case after instituting a fresh FIR on 01/02/2010. In the call records of the accused that had not been worked out in the hands of Gujarat Police, CBI claimed to have found a valuable source of important clues. On the basis of the call records, the statements of the witnesses and other materials collected by it, CBI claimed that it has unearthed a conspiracy of much larger proportions. It submitted a charge-sheet on 23/07/2010 in which, in addition to the thirteen accused named in the charge-sheet of Gujarat Police, another 6 persons were also named as accused, being part of the larger conspiracy. In the charge-sheet submitted by CBI, one of the accused was Amitbhai Shah, who till then was the Minister of State for Home in the State Government. The accusation against Amitbhai Shah was that he was the lynchpin of the conspiracy. 17. Following the submission of the charge-sheet by CBI, on 25/07/2010, Amitbhai Shah was arrested and was sent to judicial custody. Since, the Supreme Court had asked CBI to investigate all aspects of the case relating to the killings of Sohrabuddin and his wife Kausarbi, including the possibility of a larger conspiracy. CBI, therefore, felt that it was both authorised and under the obligation to investigate Prajapati case as well, as it prima facie appeared to be integrally connected with Sohrabuddin case. Gujarat Police, however, did neither hand over the records of Prajapati case to CBI nor allow it to make any independent investigation in Prajapati case. On the contrary, Gujarat Police purported to complete its investigation and, like the case of

13 Sohrabuddin, rather hurriedly filed the charge-sheet in the case on 30/07/2010, followed by a supplementary charge-sheet on 31/07/2010, before the Judicial Magistrate, First Class, Danta, Banaskantha District. The Magistrate, equally quickly committed the case to the Court of Session in two days' time on 02/08/2010 even without a proper compliance with the provisions of Section 207 of the Code of Criminal Procedure. 18. According to the said charge-sheet, Prajapati was indeed killed in a fake encounter but there was nothing more to it than that. There was no attempt to investigate any larger conspiracy or to try to connect it with Sohrabuddin case. On the other hand, the whole effort was to present it as a separate case, quite unconnected with the case of Sohrabuddin.In the meanwhile, Amitbhai Shah was granted bail by the Gujarat High Court, by order dated 29/10/2010 passed in Criminal Miscellaneous No of Against the order passed by the High Court, CBI immediately went to the Supreme Court in SLP (Crl.) No of 2010, giving rise to the Criminal Appeal No. 1503/2012, seeking cancellation of bail granted to Amitbhai Shah. On 30/10/2010 notices were issued to Amitbhai Shah and the State of Gujarat. At the time of issuance of notice, on the prayer made on behalf of CBI to stay the operation of the bail order passed by the High Court on the ground that once released on bail the accused would tamper with prosecution evidence, it was stated on behalf of Amitbhai Shah that he would leave Gujarat the following morning and would stay out of the State till further orders that may be passed by the Supreme Court.

14 On 25/11/2010 CBI submitted a copy of its final report before the Supreme Court. 20. On 13/01/2011 CBI filed the Transfer Petition (Criminal) No. 44 of 2011for transfer of Sohrabuddin case bearing Special Case No. 5 of 2010 pending in the Court of the Additional Chief Metropolitan Magistrate, CBI, Mirzapur, Ahmedabad, titled CBI v. D.G. Vanzara to the CBI Court in Mumbai or any other State and for a further direction for the constitution of a Special Court. 21. While passing orders in said transfer petition, the Supreme Court took a brief look at Prajapati case i.e. Writ Petition (Criminal) No. 115 of 2007 before it. It noted that in the first counter-affidavit filed in Prajapati case, the State took the stand that the petition filed under Article 32 of the Constitution was not maintainable because a case was already registered with the police according to which the son of the writ petitioner was killed in a police encounter. It was contended that the writ petition filed in Sohrabuddin case was for a writ of habeas corpus and it was for that reason alone that it was entertained by the Supreme Court. There was no such angle in the Prajapati case. In the counteraffidavit it was further stated that Tulsiram Prajapati was a dreaded criminal, involved in 21 criminal cases. As to the manner of his death, the counter-affidavit reiterated and fully supported the police version as stated in the two FIRs relating to his alleged escape from the police custody while being taken back after court remand and his death in a police encounter on the following day. It was pointedly denied that Tulsiram Prajapati was a witness in Sohrabuddin case. It was asserted that there was no connection in

15 the two cases. However, by the time the writ petition came up for hearing, another affidavit was filed on behalf of the State of Gujarat on 19/08/2010. In that affidavit it was conceded that Tulsiram Prajapati was killed in a fake encounter. It was, however, submitted that the State, CID (Crime) had already filed a charge-sheet in the case. It was further the stand of the State that the encounter killing of Tulsiram Prajapati had nothing to do with the killings of Sohrabuddin and Kausarbi. 22. Thus, the Supreme Court noted,that Prajapati case also followed exactly the same pattern as the case of Sohrabuddin. Initially, there was a complete denial by the State that he was killed in any kind of a fake encounter. But, when it became impossible to deny that the story of the encounter was false, an investigation was swiftly made by Gujarat Police and charge-sheet was submitted. On the basis of the charge-sheet, on the one hand an attempt was made to proceed with and conclude the trial proceedings as quickly as possible and on the other hand the Supreme Court was told that after the submission of the charge-sheet it was denuded of the authority to direct any further investigation. There was, thus, clearly an attempt not to allow the full facts to come to light in connection with the two cases. Further, in Prajapati case the State insisted till the end that though he too was killed in a fake encounter there was no connection between his killing and the killings of Sohrabuddin and his wife Kausarbi. 23. Prajapati case (Writ Petition (Criminal) No. 115 of 2007) came up before the Supreme Court and it was allowed by the judgment and order dated April 8, The Supreme Court debunked the

16 contention that there was no connection between the killings of Sohrabuddin and Kausarbi and the killing of Tulsiram Prajapati (paras 47 to 60 of the judgment) and also rejected the claim of the State Government that the investigation made in his case was complete and satisfactory. It directed the State Government to hand over the investigation of Prajapati case as well, to CBI. 24. In pursuance of the Supreme Court's direction, CBI investigated Prajapati case and submitted the charge-sheet on September 4, In the Prajapati charge-sheet Amitbhai Shah and a number of very senior police officers of the State are cited as accused. 25. The submissions made by the CBI before the Supreme Court in support of the prayers for cancellation of bail and transfer of the case, which were substantially the same, it was submitted on behalf of the CBI that Amitbhai Shah presided over an extortion racket. It was further submitted that in his capacity as the Minister for Home, Amitbhai Shah was in a position to place his henchmen, top ranking policemen at positions where they could subserve and safeguard his interests. He was part of the larger conspiracy to kill Sohrabuddin and later on his wife and finally Tulsiram Prajapati, as he was a witness to the abduction of Sohrabuddin and his wife by the police party. Taking advantage of his position as the Minister, he constantly obstructed any proper investigation into the killings of Sohrabuddin and Kausarbi even when the matter came to the notice of the Supreme Court and Supreme Court issued directions for a thorough investigation into their killings. It was at his behest and under his pressure that the top ranking police officers tried to cover up all signs of his

17 involvement in the killings of Sohrabuddin, Kausarbi and Tulsiram Prajapati and systematically suppressed any honest investigation into those cases and even tried to mislead the Supreme Court. Even after the investigation was handed over to CBI, he made things very difficult for them and CBI was able to do the investigation against great odds. 26. It is further submitted by CBI that the phone records pertaining to the periods when Sohrabuddin and his wife were abducted, Sohrabuddin was killed and his wife was killed and her body was disposed of by burning and of the later period at the time of killing of Prajapati showed Amitbhai Shah in regular touch with the policemen, accused in the case, who were actually executing the killings and the other allied offences. There was no reason for the Minister for State of Home to speak directly on phone to the police officers, far below him in the chain of command and the explanation given on his behalf in regard to those phone calls was on the face of it false and unacceptable. Apart from the phone records, there were many other materials and incontrovertible circumstances to establish the charges against Amitbhai Shah. 27. It was submitted that Amitbhai Shah's release on bail and permission to freely stay in Gujarat would greatly jeopardise the efforts of CBI to bring home the charges against him. Even after his arrest and while in jail, he had sufficient resources and influence to tamper with the evidence and to intimidate the prosecution witnesses. It was contended that allowing the Amitbhai Shah to enjoy the privilege of bail and further to let him

18 stay in Gujarat would have a very debilitating effect on the prosecution case. 28. Eventually, the Supreme Court rejected Criminal Appeal seeking cancellation of Amitbhai Shah s. However, observation made by the Supreme Court regarding the issue is worth noting. The Supreme Court observed,. we are not inclined to cancel the bail granted to Amitbhai Shah about two years ago. Had it been an application for grant of bail to Amitbhai Shah, it is hard to say what view the Court might have taken but the considerations for cancellation of bail granted by the High Court are materially different and in this case we feel reluctant to deprive Amitbhai Shah of the privilege granted to him by the High Court. However, considering the apprehension expressed by CBI that Amitbhai Shah may misuse the freedom and try to subvert the prosecution, the Supreme directed that Amitbhai Shah shall give an undertaking in writing to the trial court that he would not commit any breach of the conditions of the bail bond and would not try to influence any witnesses or tamper with the prosecution evidence in any manner. It further direct that Amitbhai Shah will report to CBI office every alternate Saturday at a.m. It was further made clear that the grant of bail to Amitbhai Shah in Sohrabuddin case shall have no effect in Prajapati case and in that case whether Amitbhai Shah is to be kept in judicial custody or granted bail would be decided by the Court on the basis of the materials on record of that case and without taking into consideration the grant of bail to him in Sohrabuddin case. The Supreme Court furthermade it clear that the grant of bail to

19 Amitbhai Shah in Sohrabuddin case shall be no consideration for grant of bail to the other accused in that case and the prayer for bail by the other accused in Sohrabuddin case shall be considered on its own merits. 29. The Supreme Court also made it clear that In case Amitbhai Shah commits any breach of the conditions of the bail bond or the undertaking given to the Court, as directed above, it will be open to CBI to move the trial court for cancellation of his bail. In that case, if the allegations pertain to the period posterior to this order, the trial court shall examine the matter carefully and take an independent decision without being influenced by this order declining to cancel the bail granted to him. 30. In the said judgment, the Supreme Court noted the episode of one of the accused, N.K. Amin whose petition under Section 306 of the Code of Criminal Procedure for grant of pardon and for being considered as an approver was kept pending for long time;inaction on complaint of Smt Jayshree Amin, the wife of N.K. Amin alleging threats to her husband's life in Sabarmati Jail which was duly forwarded by CBI to the ACJM; and eventually petition by said N.K. Amin requesting the ACJM not to pass any order on his application under Section 306 (Ext. 8) and Section 164(5) (Ext. 49) wherein he made the complaint that on his application under Section 306 the court did not pass any order but delayed the matter by giving the other accused time for filing their objection.

20 The Supreme Court noted that besides the above, there are other instances also appearing from the proceedings in Sohrabuddin case due to which the Supreme Court had reasons not to feel entirely happy at the way the courts below dealt with the matter. The Supreme Court also referred to para 29 of its judgment in Nahar Singh Yadav v. Union of India (2011) 1 SCC 307which laid down certain conditions for a case to be transferred outside the State. The same reads as under: Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 CrPC should be exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are: (i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution; (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;

21 (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and non-official witnesses; (iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and (v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice. After referring to said paragraphand conditions laid down by Nahar Singh Supra, the Supreme Court observed as under: - We find that the conditions at Serial Nos. (i), (ii), (iii) and (v) are squarely attracted in this case. 32. Accordingly, the Supreme Court directed for the transfer of Special Case No. 5 of 2010 pending in the Court of the Additional Chief Metropolitan Magistrate, CBI, Courtroom No. 2, Mirzapur, Ahmedabad titled CBI v. D.G. Vanzara to the Court of CBI, Bombay. The Registrar General of the Gujarat High Court was directed to collect the entire record of the case from the Court of the Additional Chief Metropolitan Magistrate, CBI, Room No. 2, Mirzapur, Ahmedabad and to transmit it to the Registry of the Bombay High Court from where it was to be sent to a CBI Court as may be decided by the Administrative Committee of the High

22 Court. The Administrative Committee would assign the case to a court where the trial may be concluded judiciously, in accordance with law, and without any delay. The Administrative Committee would also ensure that the trial should be conducted from beginning to end by the same officer. 33. CBI filed charge-sheet in Tulsiram Prajapati case on 04/09/2012. Vide judgment and order dated 08/04/2013 directed that said charge-sheet be treated as supplementary charge-sheet in Sohrabuddin case and both cases were clubbed together. Hereto annexed and marked as Exhibit- C is a copy of said judgment and order dated 08/04/ The said cases were originally assigned Shri J.T. Utpat, Special Judge, CBI, Mumbai. However, in June 2014, he was transferred to Pune and replace by another Judge Shri B.H. Loya. The said act of transferring the judge, hearing Sohrabuddin case was in direct breach of the order dated 27/09/2013 passed by the Supreme Court. Therefore, it is just, necessary and proper that this Hon ble Court be pleased to call for the minutes of Administrative Committee of this Hon ble Court wherein decision to transfer the Judge Shri J.T. Utpat was taken to ascertain whether the same was just, reasonable and proper. 35. Shri Amit Anilchandra Shah filed Application for Discharge (Exhibit-232) under Section 227 of the Code of Criminal Procedure, 1973 in said cases. In the night of 30/11/2014 or early morning of 01/12/2014, Shri B.H. Loya, Spl. Judge, CBI, Mumbai reportedly died from cardiac arrest. Later, certain section

23 of media, relying upon the revelations by family members of late B.H. Loya reported that the circumstances surrounding the death of late B.H. Loya are suspicious. The Petitioners have filed separate Petition seeking constitution of a Commission of Enquiry headed by retired Supreme Court judge to investigate the events and circumstances surrounding the death of Judge late B.H. Loya. 36. On 30/12/2014, the incumbent judge, Shri M.B. Gosavi, Special Judge, CBI, Mumbai allowed Application for Discharge (Exhibit- 232) moved by the Shri Amit Anilchandra Shah. Hereto annexed and Marked as Exhibit- D is a copy of said Order dated 30/12/ Respondent No. 1,CBI, which was contenting before the Supreme Court that Shri Amit Shah was running an extortion racket, that he was lynchpin in the conspiracy, that on the basis of call records it has unearthed much larger conspiracy, that that the phone records pertaining to the periods when Sohrabuddin and his wife were abducted, Sohrabuddin was killed and his wife was killed and her body was disposed of by burning and of the later period at the time of killing of Prajapati showed Amitbhai Shah in regular touch with the policemen, accused in the case, who were actually executing the killings and the other allied offences, and that apart from the phone records, there were many other materials and incontrovertible circumstances to establish the charges against Amitbhai Shah,and accepting which contentions the Supreme Court then transferred said cases from Gujarat to Mumbai, had surprisingly chose not to challenge said order dated 30/12/2014 discharging Amit Shah.The brother of the Sohrabuddin,

24 Rubaudding had challenged said order before this Hon ble Court by way of Criminal Revision Application alongwith Delay Condonation Application. However, in November 2015, said proceeding was withdrawn by Rubauddin for the reason best not to him. 38. According to CBI, had incontrovertible material and circumstances to establish the charges against Amitbhai Shah which were accepted by the Supreme Court while deciding the Transfer Petition (Crl.) No. 44/2011. According to CBI s own contention, Shri Amit Shah was lynchpin in the conspiracy which was much larger than a simple case of purported unconnected fake encounters.by discharge of Shri Amit Shah, entire case of CBI of larger conspiracy which it was contending before the Supreme Court would fall flat. 39. Section 227 of the Code of Criminal Procedure, 1973 provides for discharge of an accused for the reason of absence of sufficient ground for proceeding against him.the final report alongwith records of the case was produced by the CBI before the Supreme Court. The same was considered and accepted by the Supreme Court while passing the order for transfer of the case. Records of the case discussed in said judgment clearly establishes that there was sufficient ground to proceed against Shri Amit Shah. As such, order dated 30/12/2014 passed by the trial judge was clearly erroneous. The CBI ought to have challenge said order before this Hon ble Court.

25 The trial court has similarly discharged two Rajasthan police subinspectors Himanshu Singh and Shyam Singh Charan and senior Gujarat police officer N.K. Amin. The Petitioner has learnt that CBI has challenged their discharge before this Hon ble Court. This act of CBI of challenging discharge of the accused persons on selective basis is arbitrary and unreasonable, rather malafides. In this connection, it is pertinent to note that said N.K. Amin had earlier mode Petitions under Section 306 and 164(5) of the Code of Criminal Procedure before the ACJM, Mirzapur, Gujarat. The act of CBI of selective challenge of discharge of N.K. Amin appears to be out of vindictiveness for his earlier act of moving petitions u/s. 306 and 164(5) of CrPC. 41. The Petitioner had addressed a representation dated 16/01/2018 to the Respondent No. 1 seeking to initiate appropriate steps for challenging said order dated 30/11/2014 passed by Special Judge, CBI, Mumbai before appropriate forum. However, nothing is heard from them till date. Hereto annexed and marked as Exhibit- E is a copy of said Representation dated 16/01/ There iscatena of judgments of this Hon ble Court and Hon ble Supreme wherein it was held that arbitrariness in antithesis to the rule of law. The Petitioner organisation was formed with solemn objective to uphold rule of law. As such the Petitioner is filing the present Petition challenging the inaction on the part of the CBI in challenging the order dated 30/12/2014 passed by Ld. Special Judge,CBI, Mumbai on Exhibit-232 in Sessions Case Nos. 177/2013, 178/2013, 577/2013,312/2014. This Petition is filed in public interest.

26 That in the circumstances, it is just, proper, necessary and proper and in the interest of justice that this Hon ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent No.1, CBI to file criminal revision application or any other appropriate proceeding challenging the order dated 30/12/2014 (Exhibit- D ) passed by Ld. Special Judge, CBI, Mumbai on Exhibit-232 in Sessions Case Nos. 177/2013, 178/2013, 577/2013, 312/2014 thereby discharging Shri Amit Anilchandra Shah from the case. It is also just, necessary and proper and also in the interest of justice that this Hon ble Court be pleased to direct the Respondent No. 2 to produce the minutes of Administrative Committee of this Hon ble Court wherein decision to transfer the Judge Shri J.T. Utpat(patently in breach of order dated 27/09/2012 passed by the Supreme Court in Transfer Application (Crl.) No. 44 of 2011) was taken to ascertain whether the same was just, reasonable and proper. 44. That the Petitioner has not filed any other Petition in any High Court in India or in the Hon'ble Supreme Court in the respect of the subject matter of this Petition. 45. That in the circumstances, the Petitioner has no efficacious remedies except approaching to this Hon'ble Court in its writ jurisdiction. The relief s prayed for if granted will suffice to meet the ends of justice. The Petitioner has filed this petition without any delay.

27 That the Petitioner is having its office in Mumbai. The Respondents are having their respective offices in Mumbai.Impugned order in respect of which writ of mandamus is sought was passed by the trial court in Mumbai. Therefore, this Hon'ble Court, therefore, has jurisdiction to entertain and decide the present Petition. 47. That the present Petition is being filed by way of Public Interest Litigation and the Petitioner do not have any personal interest in the matter. 48. That the entire litigation cost including the advocate s fee and other charges are being borne by the Petitioner. 49. That to the best of the Petitioner s knowledge and research, the issue raised was not dealt with or decided and that a similar or incidental petition was not filed earlier by it. 50. That the petitioner has understood that in the course of hearing of this petition the court may require any security to be furnish towards costs or any other charges and the petitioner shall have to comply with such requirements. 51. There is no Civil Criminal or revenue Litigation involving Petitioner which could have a legal nexus with the issues involved in this PIL. 52. The Petitioner has paid fix Court fees of 250/- 53. The Petitioners will rely upon documents a list whereof is annexed hereto.

28 The present Petition is filed through Shri Ashok Asthana, the governing council member and authorized representative of the Petitioner. 55. The Petitioner, therefore, humbly prays that: (a) That this Hon ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent No.1, CBI to file criminal revision application or any other appropriate proceeding challenging the order dated 30/12/2014 (Exhibit- D ) passed by Ld. Special Judge, CBI, Mumbai on Exhibit-232 in Sessions Case Nos. 177/2013, 178/2013, 577/2013, 312/2014 thereby discharging Shri Amit Anilchandra Shah from the case; (b) That this Hon ble Court be pleased to direct the Respondent No. 2 to produce the minutes of Administrative Committee of this Hon ble Court wherein decision to transfer the Judge Shri J.T. Utpat (patently in breach of order dated 27/09/2012 passed by the Supreme Court in Transfer Application (Crl.) No. 44 of 2011) was taken to ascertain whether the same was just, reasonable and proper; (c) That such other and further relief as the nature and circumstances of the case may require. Petition drawn by me;

29 Advocate for the Petitioner Petitioner

30 VERIFICATION I, ASHOK ASTHANA, aged 62 years, an adult, Indian inhabitant of Mumbai, the authorised having my address at 2A, Ground Floor, Commerce House, 140, Nagindas Master Road, Fort, Mumbai the authorised representative of the Petitioner abovenamed, do hereby solemnly declare that whatever is stated in paragraphs No.1 to 5, 41, 43&45 to 53of the Petition is true to my own knowledge and whatever is stated in remaining paragraphs No.6 to 42 and 46 of the Petition is stated on information and beliefs and I believe the same to be true. Solemnly declared at Mumbai ) On this day of January 2018 ) Identified by me Before me; Advocates for the Petitioner