Harsh Mander explains why he challenged a court decision to discharge BJP leader Amit Shah from a case involving the extra-judicial killings of three people.
This article was first published by Scroll on 24th November, 2017
On November 26, 2005, a man in his thirties named Sohrabuddin Sheikh was gunned down by a team of the Gujarat police. The police claimed that Sheikh was an operative of the Lashkar-e-Toiba terrorist organisation and that he was, along with Pakistan’s ISI intelligence agency, planning a high-profile assassination of a senior leader in Gujarat – presumably Narendra Modi. The Rajasthan police had tipped off their Gujarat counterparts about the conspiracy, and came to Gujarat to help catch the terrorist. A police party was said to have spotted Sheikh riding a motorcycle on a highway at Vishala Circle near Ahmedabad. They challenged him, but he refused to halt. As he desperately tried to escape, he shot at the policemen. The police said that they fired back in self-defence and killed him.
In the wake of the Gujarat carnage of 2002, sensational reports frequently flashed on the front pages of newspapers and on television screens about men and women gunned down in encounters with the state police. The police mostly claimed that these men and women were dreaded terrorists who intended to assassinate Chief Minister Narendra Modi. But in each case, the authorities had been able to gather advance information of their plans and apprehend the terrorists almost miraculously (or with the utmost professionalism) just in time. The official story on every occasion was that the men and women had been killed because they tried to shoot at the police while attempting to escape.
In reply to a question in the legislative assembly, the Gujarat government conceded that as many as 21 people had been killed by the state police in what are popularly known as “encounters” between just 2003 and 2006. But the names of Sohrabuddin Sheikh and his wife Kauser Bi did not figure in the Gujarat government’s response.
“Encounters” are extra-judicial killings of people in the custody – legal or illegal – of the police. The stories given by the police about the circumstances of many of these encounter deaths in Gujarat, however, were mostly clumsy and unconvincing. Six of the people killed were officially in police custody when they died. It was incredible that they could possess firearms in custody to warrant the police killing them in self-defence. It was claimed in all cases that the persons killed by the police were dreaded terrorists, with plans to assassinate Modi or other senior leaders, or launch terror strikes, but there was rarely any convincing evidence to establish these allegations. No postmortem followed the killings, or statutory magisterial enquiry.
The story of how Sohrabuddin Sheikh, his wife Kauser Bi, and a year later his associate Tulsiram Prajapati were killed may never have come to light, like numerous other encounter killings buried in the dusty files of official malfeasance. But the shadowy truth of these encounters was exposed by a combination of chance, the unconventional investigation techniques of a maverick journalist, the dogged pursuit of justice by human rights workers and the families of those killed, and above all public officials who displayed unexpected sterling courage and fairness. The pursuit of these cases uncovered the brazen way that people had been killed by the Gujarat police and how these custodial murders were dressed up as acts of self-defence. Subsequently, many senior policepersons and Amit Shah, who was Gujarat’s home minister at the time, were jailed on extremely grave charges of extra-judicial murder.
Mumbai teenager was killed by the Gujarat Police in an encounter in June 2004. Credit: HT Photo
A brother’s plea
In the case of Sohrabuddin Sheikh, two events intervened. In December 2005, Sheikh’s brother, Rubabuddin, wrote a letter to the Chief Justice of India that he was not convinced about the police version of how his brother died, and was worried about his sister-in-law Kausar Bi, who had also gone missing at the same time as Sohrabuddin’s murder. The Supreme Court ordered the Gujarat police to investigate how he had been killed and what had happened to Kausar Bi.
Matters may still never have surfaced, except for a discussion over drinks of a few police inspectors with a journalist with a colourful history Prashant Dayal, who worked with the widely circulated newspaper, Divya Bhaskar. Dayal had been employed in a garage and then drove an auto-rickshaw before he established his credentials as an investigative reporter. He often plied police officers with liquor to extract “inside” news in a state that officially has a policy of prohibition. That evening, with much liquor in their bloodstreams, the officers bragged about how they had eliminated “anti-national elements”.
The journalist investigated further, and his enquiries confirmed that two men and a burqa-clad woman had been confined in a farm house. In November 2006, he finally broke the sensational story of the killing of Sohrabuddin Sheikh and his wife Kausar Bi. (In 2008, he was soon charged with sedition by the Gujarat police. It took until 2013 for him to be acquitted.) Dayal’s report sparked a series of developments that led ultimately to the arrest of senior police officials like DG Vanzara and Rajkumar Pandian of the Gujarat police, and MN Dinesh Kumar of the Rajasthan police, for the murder of Sheikh and others.
The investigation ordered by the Supreme Court into Sheikh’s killing was initially supervised by Inspector General of Police Geetha Johri. Her investigation established quickly that the police story was a criminal fabrication, and that Sheikh had been deliberately murdered by the Gujarat police without any provocation. The motorcycle that the police claimed Sheikh had been riding actually belonged to the cousin of a constable of the Gujarat Anti Terrorist Squad. The Gujarat state government counsel was forced to admit to the Supreme Court that this was indeed a fake encounter.
It became clear that a police team had taken Sohrabuddin Sheikh, his wife Kausar Bi and associate Tulsiram Prajapati into custody on November 22, 2005, as they were travelling in a luxury bus from Hyderabad to Sangli. The group of policemen who abducted them were from Gujarat and Andhra Pradesh and were led by a senior IPS officer from Gujarat, Rajkumar Pandyan. The police team initially apprehended only Sheikh and Prajapati, but Kausar Bi refused to let them take away her husband without her. All three were pulled out of the bus by the police. After they reached Gujarat, though, a protesting Kausar Bi was taken to a separate farmhouse. Prajapati was later handed over to the Rajasthan Police and subsequently sent to jail. Sohrabuddin Sheikh was killed by the police team on November 26, 2005.
Sohrabuddin Sheikh and his wife, Kauser Bi. Credit: HT Photo
A gruesome killing
Investigations established that Kausar Bi was killed and her body was burnt on or around November 29, 2005. The police had never announced her killing, nor claimed that she was a terrorist. Human rights lawyer Mukul Sinha pieced together what perhaps happened based on statements by police witnesses to the Central Bureau of Investigation: “Kauserbi was confined in a farmhouse known as Arham farm from 26th to 28th November, 2005…One PSI Chaube was given the job to guard her…Ravindra Makwana ASI …on 25.8.2010, stated before the CBI that …‘Choube the then PSI who was deputed to look after Smt Kauserbi, raped her in farmhouse.’ The last journey of Kauserbi was of course the most brutal. On 29th November around 12.30 p.m, she was taken to the ATS office at Shahibaug by PSI Choube. DG Vanzara, DIG and Rajkumar Pandyan, SP, tried to buy peace with her and offered her a huge sum of money for her silence but she refused. On being told about the death of Sohrabuddin, she turned hysteric. Narendra Amin, Dy SP Crime Branch Ahmedabad, who was earlier a doctor by profession, was summoned by Vanzara around 4 pm. Kauser Bi was drugged and killed in that very office.”
When Sheikh’s associate Prajapati realised that Kauser Bi had been killed, he immediately surmised that she had been eliminated because she was a witness to the abduction. Now that he was the only remaining witness, he was terrified that he would meet the same fate. He spoke of his fears to many people, including some undertrials with whom he was detained in prison, and to his lawyer. He wrote desperately to the Chairperson of the National Human Rights Commission, praying that it intervene to save his life. He feared that he would be killed while he was taken out of jail to attend the court cases pending against him. When the police transported him to other places, he would ask members of his family to try to travel on the same train. He was prescient.
Despite his many pleas, he was killed in yet another purported encounter. The Rajasthan Police brought Prajapati to Ahmedabad by train on December 26, 2006, and boarded the night train to Udaipur from Ahmedabad station. Early on the morning on December 28, Prajapati was shot dead by the Gujarat Police near the Gujarat-Rajasthan border highway, close to a village called Chhapri. The police claimed that he had fled en route to the court. The claimed encounter took place in Gujarat’s Banaskantha district, to which accused IPS officer DG Vanzara had been transferred just 13 days before the murder. The chargesheet filed later by the Central Bureau of Investigation said that Prajapati had been abducted in Ahmedabad. The encounter took place under the direction of Vanzara and another IPS officer, Vipul Aggarwal, the agency said.
Gujarat police officer DG Vanjara. Credit: PTI
Police officer’s testimony
Prajapati was killed at a crucial point in the Sohrabuddin and Kausar Bi murder investigation, when the Investigating Officer, VL Solanki had sought permission to interrogate him. According to a statement by police officer GC Raiger to the CBI later, Home Minister Amit Shah called a meeting in the second last week of December 2006. Raiger testified that he attended this meeting with Geetha Johri, the Inspector General of the state Criminal Investigation Department who was supervising the Sohrabuddin enquiry, and Director General of Police PC Pande. (Both were later listed as accused in this case.) According to Raiger’s testimony, Shah “scolded us for not being able to tame Solanki, who wanted to drag the matter further in his enquiry by way of examining Tulsiram Prajapati for which he had sought permission. He told us to wrap up the matter.”
According to Raiger, Shah specifically directed that Prajapati should not be interrogated and that Solanki should be stopped from his investigation. The investigating officer Solanki also told the CBI that Johri, the senior police officer who was supervising his investigations, instructed him to change the case papers in order to delete evidence against Amit Shah. This, she told him, was on Shah’s instructions. Solanki refused. Rajendra Acharya, who was Geetha Johri’s personal assistant, confirmed this conversation.
In March 2007, the investigation was handed to Deputy Inspector General of Police, Rajnish Rai. When Rai was entrusted with this task, it was expected that he would protect the state police and political establishment. Instead he stunned his peers and seniors by arresting IPS officers Vanzara, Pandyan and Dinesh MN in April 2007 for the Sohrabuddin fake encounter. Pandyan was Rajnish Rai’s batch-mate, and they had been close friends but he was convinced that a great wrong had been committed and that he had to stand firmly on the side of truth and fairness. Rai alleged that Amit Shah and the police officers loyal to him were making every effort to cover up the fake encounter. He also maintained that the Prajapati murder was also part of this conspiracy.
In January 2010, the Supreme Court finally transferred the investigation to the Central Bureau of Investigation. In April 2010, senior Gujarat police officer Abhay Chudasama was charged with extortion in partnership with Sohrabuddin Sheikh. After Chudasama’s arrest, the CBI also charged the Amit Shah with collusion, based on 331 phone calls by the politician to the concerned police officers that had been deleted from the records.
The murky story that emerged from the CBI investigation was that Sohrabuddin Sheikh was a member of a criminal gang. This gang was encouraged and patronised by some Gujarat police officers and political leaders, and operated an extortion racket in Rajasthan. However, matters came to a head after Sheikh’s gang threatened some well-connected marble businessmen in Udaipur. His political and police masters felt that Sheikh was not amenable to control, and should be eliminated. They could not take the risk of charging him formally for his crimes, because he would expose his powerful mentors and partners in crime.
According to the CBI charge-sheet, the killing was orchestrated by senior police officers on the orders of Gujarat Home Minister Amit Shah and former Rajasthan Home Minister Gulab Chand Kataria, who was also a senior BJP leader. A supplementary charge-sheet filed by CBI on May 6, 2013, alleged that Vimal Patni, the owner of RK Marbles and Gulab Chand Kataria conspired to kill Sohrabuddin Sheikh as he was allegedly trying to extort money from RK Marbles. The CBI further charged that the killing was outsourced to the Gujarat Police in consultation with Amit Shah, the Minister of State for Home of Gujarat.
It was after the investigation by the CBI that Amit Shah was charged as an accused in these extra-judicial murders, and he was jailed along with more than 10 police officers. The CBI further charged that Shah was also involved in criminal extortion activities.
Gujarat Police officer Geeta Johri. Credit: HT Photo
Dahyaji Gobarji Vanzara, who headed Gujarat’s Anti-Terrorist Squad, was in jail from 2007 to until he got bail in 2015 on charges of having conducted a series of extra-judicial killings. In addition to being accused of killing Sohrabuddin Sheikh, Kauser Bi and Prajapati, he was also charged with the murder of Sameer Khan (killed in October 2002), Mumbai college student Ishrat Jahan and three others (shot dead on June 15, 2004) and Sadik Jamal (killed in 2003). It is reported that in September 2013, there were 32 police officers, including six Gujarat IPS officers, who were serving time in jail for their involvement in fake encounters. Most of them had worked under Vanzara.
From jail, he wrote a letter of resignation, in which he was entirely unrepentant. “The CID/CBI arrested my officers and me holding us responsible for carrying out allegedly fake encounters,” he wrote. “If that is true, then the CBI investigating officers for all four cases have to arrest the policy formulators too as we, being field officers, have simply implemented the policy of this government, which was inspiring, guiding and monitoring our actions from very close quarters.” He described himself as a “nationalist Hindu”, spoke of Narendra Modi as “god”, yet he felt abandoned and disgruntled. Vanzara was released on bail in February, 2015, and returned home to a hero’s welcome.
Change of fortunes
The winds had changed course once the Bharatiya Janata Party government led by Narendra Modi took charge of the government in Delhi in May 2014. The fortunes of Shah and the indicted police officers changed dramatically. There were some initial hiccups, but these quickly remedied. The trial judge JT Utpat pulled up Amit Shah on June 6, 2014, for failing to appear in court in person. He ordered Shah to present himself in court on June 26, 2014. But only a day before this scheduled hearing, Utpat was transferred to another court, and replaced by another judge BH Loya. Judge Loya also expressed concerns over Shah’s failure to appear before the court. But this judge died on the night of November 30 or in the early hours of December 1, 2014, in circumstances that his family claims were suspicious. In an article published this week, they detailed their misgivings to The Caravan magazine.
Within weeks of Judge Loya’s death, on December 30, 2014, the third judge to hear the case, MB Gosavi, discharged Amit Shah from the Sohrabudin Sheikh fake encounter case. Gosavi said he saw no evidence against Shah, and instead said he “found substance” in his main defence that the CBI had framed him “for political reasons”. In so doing, Gosavi ignored crucial pieces of evidence such as police officer Raiger’s categorical statement that Amit Shah had instructed obstruction of the investigation, and his phone records.
Judge BH Loya’s family says that he died in mysterious circumstances in 2014.
One by one, the court also discharged Rajasthan former Home Minister Gulabchand Kataria, Rajasthan-based businessman Vimal Patni, former Gujarat Police chief PC Pande, Additional Director General of Police Geeta Johri, Gujarat Police officers Abhay Chudasama, Rajkumar Pandian and N Amin from the case. So too were Yashpal Chudasama and Ajay Patel, both senior office-bearers at the Ahmedabad District Co-Operative Bank. Gosavi discharged Pandyan on the flimsy technical ground that there was no permission to prosecute him and hence he could not be prosecuted, ignoring that such permission is not necessary when an officer is charged with murder. All the serving officers have been reinstated and promoted.
PP Pandey was released on bail in February 2015 and, in three days, was reinstated and given charge of an investigation against Satish Verma, the police officer whose Special Investigative Team inquiry had led to Pandey’s indictment in the first place. In April 2016, he was appointed the acting Director General, Police, Gujarat – the first time in India that a police officer on bail for murder was given this high responsibility. Respected police officer Julio Ribeiro unsuccessfully challenged his promotion and appointment. “The police force of a state can’t be headed by a person accused of extremely serious offence of murder of four persons, especially, when the trials are yet to begin,” Ribeiro said. In time, seven indicted police officers were granted bail. Three retired, the remainder were promoted.
By contrast, police officer Rajnish Rai, whose brave and fearless investigations led ultimately to the charge-sheeting and arrest of Amit Shah and several senior police officers, has been consistently punished. Since 2007, Rai was then not posted even once to the same location as his wife, an IAS officer. A number of false charges were levelled against him, his confidential reports sullied, and he was superseded. But he is unbroken, accepting stoically the personal and professional costs of doing what they believed was right.
Rajnish Rai said to me that for him the highest satisfaction is that after the investigations undertaken by him and Satish Verma (in the Ishrat Jahan matter), extra-judicial killings came to an abrupt and absolute halt in Gujarat. This would not have happened if these two officers had not demolished the long-sustained tradition of impunity from any criminal investigation for custodial killings by police persons. This alone makes all that they have suffered and lost in their careers worthwhile for them.
Amit Shah greets Narendra Modi. Credit: AFP
Meanwhile, after Narendra Modi became prime minister in 2014, he picked Amit Shah to head the BJP, vaulting him over the heads of many senior leaders. Shah is widely perceived to be the second most powerful person in Modi’s India. It mattered for nothing for Modi that Shah had been charged and jailed for his alleged role in conspiring and directing the extra-judicial killings of Sohrabuddin Sheikh, his wife Kauser Bi and Tulsiram Prajapati in 2005, and in other extra-judicial killings such as of the teenaged Ishrat Jahan.
It is very rare for the CBI to fail to appeal against the discharge of its own chargesheet in any criminal case, because this would amount to admitting that its own investigation and chargesheet was flawed. But in the Sohrabuddin Sheikh case, the CBI has chosen not to appeal against the discharge of Amit Shah and other police officers by the trial court. It was Sohrabuddin’s brother, Rubabuddin Shaikh, who challenged Amit Shah’s discharge in the Bombay High Court. But after a few hearings, he withdrew his challenge. He went on record in later press interviews that he did so under pressure, fearing for his life.
I felt that this was too important a matter to pass unchallenged, therefore I filed an appeal against the order in the Mumbai High Court, with the assistance of my friends, senior lawyers Indira Jaising and Anand Grover. I did not claim that Shah or the Gujarat police officers were definitely guilty (I have no basis to do so), only that since the CBI had filed a chargesheet against them, it was in the public interest that the evidence against the former home minister should be heard and evaluated fairly.
However, the Mumbai High Court dismissed my application on the grounds of locus, or in other words maintaining that since I am unrelated to the person killed, I have no right to intervene. I am convinced however that this was not a matter of the private grief and loss of Sohrabuddin’s brother, Rubabuddin Sheikh. Since the grave charges of multiple murders were against a person who held the high office of home minister of Gujarat, and is now the national president of the ruling party, I and the people of India have the right to know whether he, or the police officers under his command, had anything to do with the killings of Sohrabuddin Sheikh, Kauserbi and Tulsiram.
I challenged the High Court rejection in an appeal to the Supreme Court. Kapil Sibal, my lawyer, pleaded before the judges that there are any number of rulings of the higher courts, both to support my right to raise this question before the courts, and for the evidence against the accused persons who have been chargesheeted to be tested in a court of law. He spoke of the imperative for the courts to demonstrate that that there is only one law in the land for all people, not one for the powerful and one for ordinary citizens. The court dismissed my appeal as well without giving reasons.
But the CBI’s unwillingness to have this order examined by the higher courts speaks volumes about the pressures it faces, or its willing (and culpable) partisanship. The discharge orders of the trial court freeing Amit Shah and the police officers from facing trial for the murder of Sohrabuddin have not been approved or upheld by either the High Court or the Supreme Court. Many news reports have since claimed that a clean chit has been given to Amit Shah by the High Court and the Supreme Court. This is not correct. The High Court and the Supreme Court have merely denied one petitioner the chance to challenge these orders on technical grounds. Shah, as of date, has received no such clean chit from any of the constitutional courts of the country.
On November 29, the special CBI court will begin the trial in the Sohrabuddin fake encounter case, hearing evidence against 22 other people against whom charges of murder, abduction and destruction of evidence have been framed, as well as offences under the Arms Act.
In one of his election speeches in Gujarat, Modi declared defiantly, “Congressmen say that Modi is indulging in [illegal police] encounter[s], saying that Modi has killed Sohrabuddin. Friends from Congress, you have a government at the centre, if you have the guts send Modi to [the] gallows.” When he asked the crowds what to do with Sohrabuddin Sheikh, the crowd responded, “Kill him! Kill him!”