Provide Gujarat, Shah with docs in encounter case: SC to CBI

A bench of justices Aftab Alam and R M Lodha in an order asked the CBI to furnish the State Government, Shah and other accused with copies of certain portions from the first status report submitted by the agency to the court in June last year.

The apex court passed the direction while posting to February 23, hearing of the agency's plea for transfer of the case on the ground that the trial could not be held in a free and fair atmosphere as " even the judge hearing it had become "servile" to Shah.

The bench passed the direction after senior counsel Ram Jethmalani appearing for Shah and Ranjit Kumar for the State Government insisted that certain material relied upon by the agency to charge the accused have not been furnished to them.

"It is wholly inconsistent with any principles, principles of natural justice or the Indian Evidence Act," Jethmalani said during the arguments.

He submitted that the CBI had claimed 200 complaints of extortion registered against the accused but there was no evidence to link Shah to any of the complaints.

CBI's senior counsel K T S Tulsi argued that observations and opinions expressed by the investigating officers which is part of the case diary and status report cannot be divulged to the accused at this stage.

"We will not use anything against you which is not supplied to you," the bench told Jethmalani while directing the CBI to furnish copies.

Besides, the state government, the apex court had earlier notices to Shah and 18 others including suspended IPS officers-D G Vanzara (DIG), Rajkumar Pandiyan (SP), both from Gujarat cadre, and M N Dinesh (SP) from Rajasthan cadre.

The CBI alleged in its application that "there was open servility and excessive demonstration of favourable and partisan attitude to Shri Amit Shah by the learned Additional Chief Judicial Magistrate.

"He was granted exemption from appearance even without giving a hearing to the CBI," the agency claimed.

The CBI alleged that it received more than 200 complaints of extortion, threats and other serious offences committed by the accused politician and police officers.

"The atmosphere in Gujarat is quite vitiated and demoralising for the witnesses as well as the investigating officers.

"Hence, it has urged the apex court to transfer the case from the court of the Additional Chief MM, CBI, Mirzapur, Ahmedabad to the court concerned at Mumbai or any other state," the CBI had said.

The CBI alleged that since the accused and the victim belonged to different communities, there were "communal overtones" and the atmosphere was not conducive to a fair and impartial trial.
"There is a surcharged tension in the area and the atmosphere in the state of Gujarat is not conducive to fair and impartial trial.

"Because in the course of investigations, spread over 5 years, a bitter communal twist to the incident is discernible from the beginning. The fact that the perpetrators by and large are members of one community, they come from a particular background and some important witnesses/victims are by and large from the other community.

"The fact that a former Home Minister and senior police officials are accused itself has the effect of terrorising the minds of the witnesses. (This is) coupled with the over a dozen instances where the witnesses have been pressurised to resile from their statements," the CBI claimed.

According to the CBI, relatives of some of the accused happened to be public prosecutors and even judges in the state's lower judiciary.

The CBI alleged that witnesses have been threatened and kidnapped in the past, making it impossible to hold a free and fair trial in the state.

It alleged that several types of pressure tactics were being employed to derail the probe from reaching the real culprits due to involvement of high-profile people as accused in the case.
The application said that suspended DSP N K Amin, an accused, suffered a fracture after he was attacked by an inmate of the Sabarmati Jail after he refused to retract from his decision to turn an approver in the case.

The agency alleged that    Amit Shah met his followers in the Sabarmati Jail and even sat in the official chair of the jail superintendent. Though report was sent by the CBI to the Additional DGP, Prison and the Additional Chief Secretary, Home, on the issue, no action was taken, it claimed.

"This can have a serious adverse impact on the ability of the court to discover the truth and there is every likelihood that the witnesses may feel inhibited in deposing against the powerful minister and the senior police officials in the state, in view of the looming threat of intimidation," the CBI said.

The agency further claimed that the investigating agency is faced "with an extremely hostile state machinery including the state government and the local police. It is unable to prosecute the trial without facing hindrance and hurdles at every juncture.

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