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Legally Explained: Why and how SC dismissed a petition seeking to reopen investigation of Amit Shah role in Sheikh encounter?

On 26 November, 2005, the Gujarat police killed Sohrabuddin Sheikh, while he was in police custody. The police claimed he was involved in alleged criminal extortion racket, arms smuggling, and murder cases. Thereafter, Sheikh’s wife, Kauser Bi disappeared. A year later, Sheikh’s associate, Tulsiram Prajapati, a witness to Sheikh’s killing, was killed in another encounter with the state police.

It was alleged that the killings were orchestrated by senior police officers at the best of the then Gujarat home minister, Amit Shah.

So, who investigated it first?

The Gujarat police first began to investigate. However, Sohrabuddin’s brother Rubabuddin, moved the Supreme Court, to direct a CBI inquiry, which was granted.

The Supreme Court also transferred the trial from Ahmedabad to Mumbai.

What did the CBI find?

The CBI found that Amit Shah had a role in the killings. But on 30 December 2014, the Special CBI court in Mumbai, had discharged the then BJP president, Amit Shah, observing that the CBI implicated Shah in this case for political reasons.

OK, if the CBI was not satisfied, it could have appealed against this discharge order, right?

It could have, but the composition of the Central Government changed in 2014, with NDA replacing the UPA

If the CBI was really a caged parrot, as famously described by the Supreme Court, it may have changed tunes and might not have seen merit in appealing.

So, then what happened?

First, the discharge order was challenged by Sohrabuddin’s brother, Rubabuddin Shaikh. However, Rubabuddin, by application dated 5 October 2015, sought to withdraw the challenge. On 23 November 2015, the Bombay high court, allowed him to do so.

Did not Rubabuddin’s withdrawal of challenge invite doubts that he might have been influenced to do so?

Yes, it did. The high court judgment records that it gave him enough time to reflect on his decision, and change it, if necessary. Also, the high court judges heard him in person in the chamber to ascertain whether his decision to withdraw was voluntary. The high court satisfied itself that the request for withdrawal was not made under threat, pressure, inducement or promise.

So, it should have been the end of the matter, right? How did Harsh Mander step in?

Harsh Mander was not the first person to challenge it. First, Rajesh Kamble, in his capacity of being “an alert citizen” challenged it. The high court dismissed it on 21 October 2015.

It is only after Kamble, Mander filed his challenge to the discharge of Amit Shah.

So the high court’s dismissal of Mander’s challenge ended up in the SC Was the high court judgment in this regard a reasoned one?


The high court, like the Supreme Court, doubted his bona fides, but had given detailed reasons for its doubts.

Specifically, what are the high court’s grounds of rejecting Mander’s petition seeking to reopen Amit Shah’s role in the killings?

First, the high court asked why Mander, if motivated by social interest and responsibility, did not file his petition before the limitation period for challenging the discharge of Amit Shah expired.

It pointed out that even Rubabuddin filed his application against discharge after the limitation period, which was condoned.

Was it the only reason?

No. There were other reasons too. It asked Mander, why he waited till the dismissal of Kamble’s application.

Second, it asked why Mander did not challenge the discharge of the other accused in the case.

Third, it observed that Mander showed sudden interest in the matter after a period of over 10 years, which could not be explained.

OK This much is understood. How did the high court deal with the legal arguments advanced by Mander’s counsel?

Mander’s counsel wanted the high court to exercise its inherent powers under Section 482 CrPC, to reopen the case against Amit Shah. The high court disagreed that the process of the court has been abused in this case, which necessitates exercise of inherent jurisdiction.

How did Mander’s counsel rebut the argument that he lacked standing in the case?

Mander’s counsel relied on the Supreme Court’s decision in Subramanian Swamy (2013) 10 SCC 465, wherein Swamy had sought an authoritative pronouncement of the true purport and effect of the different provisions of the Juvenile Justice Act, so as to take a juvenile out of the purview of the Act.

It was argued that like Mander, Swamy had no locus standi (no sufficient connection) in that case, yet the court agreed to hear him.

How did the SC permit Swamy in that case, though he was, like Mander, a third party/stranger to the case?

The Supreme Court reasoned that Swamy was seeking adjudication which had implications beyond the case. It was held that the interpretations of the JJA would have effect on all juveniles, who may come in conflict with the law – both in the immediate and near future.

Mander, according to the high court, failed to show that his legal right has been invaded so as to give him locus standi to challenge the discharge order.

==Does this order mean that no private citizen, without a locus standi, can move a court to set the criminal law in motion against an accused, if those who have the locus standi, fail to do so?

It does not.

The high court distinguished the earlier cases in which the apex court permitted persons without locus standi to move the court, to set the criminal law in motion against the accused, from the present one.

In earlier cases, the high court said that a total stranger like Mander, did not seek the exercise of the high court’s inherent powers under Section 482 Cr.PC to reopen a case in which the accused was discharged by the trial court.

Fair enough, so the facts as in this case may not have arisen in any previous decisions. But what about the maxim that justice must not only be done, but also seen to be done?

Perhaps that maxim (and critics of Shah) would have lived more happily if the court could have heard the case anyway, even if only to dismiss it later.

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