SC Should Reconsider Its Dismissal of Appeal Against Amit Shah’s Discharge in Sohrabuddin Case

If the questions raised by Judge Loya's family had surfaced earlier, both the Bombay high court and the Supreme Court may have come to a different conclusion on the appeal.

Amit Shah. Credit: PTI

BJP chief Amit Shah. Credit: PTI

The questions raised by the immediate family members of Judge B.H. Loya about his sudden death in December 2014 may or may not have easy answers, but they have raised anew lingering misgivings over the discharge of BJP president Amit Shah in the Sohrabuddin Sheikh fake encounter case.

Caravan magazine last week reported the family’s questions about the circumstances of Loya’s death due to cardiac arrest. While the Indian Express on Monday quoted two judges of the Bombay high court, as well as the two hospitals in Nagpur who attended to him, to say there was nothing suspicious about the death, the paper noted that family members continue to harbour doubts.

As the CBI did not appeal the December 30, 2014, decision by Judge M.B. Gosavi – who took over the case from Loya – to discharge Shah, Sohrabuddin’s brother, Rubabuddin Sheikh, challenged it in the Bombay high court. Rubabuddin, for inexplicable reasons, withdrew his challenge on October 5, 2015. The Bombay high court allowed him to do so on November 23, 2015, after satisfying itself that he was doing so voluntarily.

The high court judgment shows that it gave Rubabuddin enough time to reflect on his decision and change it if necessary. The high court judges, before accepting his application for withdrawal, heard him in the chamber to ascertain whether it was indeed voluntary. The high court recorded its satisfaction that the withdrawal was not made under threat, pressure, inducement or promise.

The withdrawal by Rubabuddin first provoked a third party, Rajesh M. Kamble, to challenge Gosavi’s discharge of Shah. Kamble claimed that he was doing so in his capacity of being ‘an alert citizen’. The high court dismissed his challenge on October 21, 2015.

Social activist Harsh Mander then felt the need to challenge the discharge of Shah. He filed another application in the high court during the pendency of Rubabuddin’s withdrawal application. Mander claimed that he was doing so because the crime, being a gross case of custodial murder, inflicted violence, trauma, fear and loss not only on the interested parties but also on the entire law-abiding society.

Mander also claimed that though there was sufficient prima facie material to proceed against Shah, the CBI did not challenge the discharge order, which resulted in the abuse of the processes of law and a gross failure of justice. Mander contended that as Rubabuddin had sought to withdraw his revision application as well as the application for condonation of delay, it was left to concerned citizens to pursue the matter in order to ensure justice in the larger interest of society. Mander alleged that Rubabuddin’s withdrawal of the revision application appeared to be suspicious – and that it might have been made under threat, inducement or promise.

It is interesting to note that in response to Mander’s application, Shah advanced technical arguments. His counsel, K.V. Raju, referred to the dismissal of Kamble’s petition, which was similar in nature, and said Mander had suppressed this material fact. It was his contention that Mander had approached the court with unclean hands.

Mander’s counsel, Anand Grover, had then told the high court that the relief sought by Kamble was entirely different from the relief sought by Mander. The high court agreed with Grover and refused to dismiss Mander’s petition on the ground of suppression of material facts.

But the high court referred to its order dismissing Kamble’s petition, holding that he was neither a victim nor an aggrieved person. The high court had further held that Kamble had not demonstrated that his legal rights were impaired or that any harm or injury was caused to him or likely to be caused due to Rubabuddin’s withdrawal petition being accepted. The high court, therefore, held that Kamble, as the intervenor, had no legal right to intervene in the proceedings.

High court’s inherent jurisdiction

Grover submitted to the high court that the withdrawal application by the aggrieved party prompted Mander, a concerned citizen, to file his application invoking the inherent powers of the high court under Section 482 of the Code of Criminal Procedure in order to challenge the discharge order.

The high court held that the case did not involve the issue of locus standi of a third party/stranger for setting criminal law in motion. The issue, the high court said, was whether Mander, who was a total stranger to the proceedings, could invoke the powers of Section 482 to challenge the discharge order, on which there was no exact precedent.

Having said that, the high court concluded that Mander was neither a victim nor an aggrieved person. He did not suffer any prejudice or demonstrate that his legal rights were impaired or any harm/injury was caused to him or was likely to be caused, the high court held. “The applicant has thus not been able to demonstrate that his legal right has been invaded so as to give him locus standi to challenge the order,” the court said.

In other words, while the high court agreed that locus standi of a third party/stranger is not required for setting the criminal law in motion, it could not explain why it should be mandatory for an application seeking the invoking of the inherent power of the high court to challenge a discharge order.

Supreme Court. Credit: PTI

Supreme Court. Credit: PTI

Not a rare case?

Instead, the high court faulted Mander for not setting the criminal law in motion against Shah, before the Supreme Court intervened on the basis of Rubabuddin’s letter of grievance and constituted the special investigation team (SIT). The high court also asked Mander why he did not challenge the discharge order within the period of limitation, although it was about to consider Rubabuddin’s application for condoning a similar delay before he withdrew his.

Lastly, although it was clear that Shah was the most powerful of all the accused, the court asked Mander to explain why he had restricted his prayer for relief only against the discharge of Shah, and not against the other persons accused in the case. “The social interest and responsibility proclaimed by the applicant is thus restricted only to the relief sought against the respondent No.1 (Amit Shah) and does not even extend to other accused in the said case much less having larger implications beyond the case,” the high court made a tongue-in-cheek remark.

The fact that Mander showed a sudden interest in the matter after a period of over ten years from the principal incident – the fake encounter which took place in 2005 – was an indication of his lack of bonafide, the high court concluded. “Needless to state, criminal law cannot be permitted to be used as an instrument to wreck vengeance due to personal or political grudge or to spite the accused for any other oblique purpose,” the high court added, as if giving a clean chit to Shah.

“This is not one of those rare cases which brings about a situation which is an abuse of the process of the court, which necessitates exercise of inherent jurisdiction,” the high court concluded while dismissing Mander’s application.

Had the family members’s doubts over the cause of Loya’s death been revealed prior to the high court’s judgment, would it have been sufficient for the high court to conclude that it was indeed one of those rare cases?

Supreme Court’s double standards

Unfortunately, the Supreme Court, which heard Mander’s special leave petition against the high court’s judgment, dismissed it on August 1 last year after hearing his counsel, Kapil Sibal, for half an hour, without a reasoned judgment. Media reports of the proceedings, however, show that the bench of Justices S.A. Bobde and Ashok Bhushan questioned Mander’s locus standi in the case.

Mander’s review petition was also dismissed by the same bench, by circulation in chambers, on October 19 last year.

Again, the question of whether the outcome in the Supreme Court would have been different had the family’s questions about the circumstances surrounding Judge Loya’s death come to light prior to the dismissal of Mander’s petitions, lingers.

It is also worth contrasting the Supreme Court’s dismissal of Mander’s appeal on the ground that he lacked locus standi with the Supreme Court’s inclination to hear the special leave petition filed against the Bombay high court’s judgment dismissing the plea to reopen the Mahatma Gandhi assassination case. Why was the locus standi of the appellant, Pankaj Phadnis, not addressed by the Supreme Court at the preliminary stage, even while it raised questions about Tushar Gandhi intervening in the case? Although the court has not yet issued a notice in the matter, it has underlined its importance by appointing an amicus curiae in the case and requesting his report before proceeding further.

The questions Loya’s father and sisters have raised about the death of the judge only strengthen the case for the Supreme Court to recall its order dismissing Mander’s appeal last year.