SC rebukes CBI for questioning Gujarat judiciary's fairness

CBI's assertion in the charge sheet that the accused in the case have "presence of their kith and kin in the subordinate judiciary in various capacities as prosecutors, magistrates as well as judges" was termed as "highly irresponsible statement" by the apex court.

"How do you (CBI) make such a statement," a bench of justices Aftab Alam and Ranjana Prakash Desai asked the Additional Solicitor General Vivek Tankha, who said he did not "subscribe" to such view.

"Let us know whether you want to retain it (allegations against judicial system) or you want to delete it," the bench wanted to know from the law officer.

"I came much later (in the case). I will make an application and make a prayer for deletion (of paragraphs) from the petition," Tankha told the bench which took strong exception to the insinuations made against the lower judiciary of Gujarat.

"Why you said so? It's contemptuous. Why and how did you say this?," the bench asked and went on to observe that "In our system there is a separation of power and judiciary is independent and to say that judiciary even at the lower rank will toe the political line is complete nonsense".

"To systematise an institution we totally disapprove such statement of the CBI," the bench said.

"Notwithstanding all these, let there be no impression that the state is protecting the accused," it further said.

While the bench was making comments against the CBI, Gujarat's Additional Advocate General Tushar Mehta said he was "objecting" to the agency's allegation that "state's judicial institution is incapable of handling this case".

"Judiciary in the state is alive to the seriousness and gravity of this case and the trial would not lead to failure of justice in Gujarat," he said while opposing the CBI plea seeking shifting of the trial of the case outside the state.

Mehta dubbed it as "premature" the CBI making a case for transferring the trial outside Gujarat saying that there was nothing on record for the agency to show that the case has been "stigmatised" requiring it to be shifted.

"At this stage when trial has not commenced it is premature for CBI to seek transfer of the case as there is no instance for the CBI to show witnesses are turning hostile or there have been tampering with the evidence," he said.

Further, he said "so far witnesses have not been examined and as such there is no indication of witnesses turning hostile or there have been no retraction of statements by the witnesses who first recorded them before state police and later before the CBI.

Shah, a close aide of Gujarat Chief Minister Narendra Modi, was arrested by the CBI on July 25 last year and had to spend over three months in Sabarmati jail in Ahmedabad.

Shah has been accused by the agency of being the "kingpin" of the conspiracy leading to the fake encounter killing of Sohrabuddin Sheikh in November 2005. His wife Kausarbi and Tulsiram Prajapati, said to be his accomplice, were also killed later.

During the day-long hearing, the Gujarat government strongly objected to allegations by the CBI that there was a presence of kith and kin of the accused in the Gujarat judiciary which will come in the way of free and fair trial, terming it as unfounded and baseless.

"I submit that the state government has examined the said allegation and has found that none of the accused shown in the charge-sheet filed by the CBI has any relative either in the subordinate judiciary or otherwise in any capacity, be it prosecutor, Magistrate and/or judge.

"I call upon the CBI to substantiate the said irresponsible allegation giving specific facts and disclosing the source of information from which it 'reliably learnt' about the incorrect facts stated in," Mehta said.

Gujarat Government asked the apex court to initiate contempt proceedings against the CBI for making contemptuous allegations against its judiciary "irrespective of the view likely to be taken by it on the merits of the case".

He said such averments by the CBI would seriously affect the "credibility, majesty and independence" of judicial institutions in Gujarat.

"I respectively request this court, with a view to protect the credibility, independence and majesty of judicial institution in the state of Gujarat to initiate contempt proceedings against the responsible officers of the CBI who 'reliably learnt' that said false facts, did not verify the same and who has shown fearless audacity to make contemptuous allegation against the judiciary as an institution," Mehta said while reading out the state government's affidavit.

The affidavit said that if the apex court did not take such an irresponsible and contemptuous allegation seriously and did not initiate contempt proceedings, "it would seriously undermine the majesty and credibility" and bring the judiciary of the state in "disrepute".

During the last hearing, Shah had contended before the apex court that he was implicated in the case because the Centre wanted to "destabilize" the Modi government.
Sohrabuddin and his wife were allegedly abducted by the Gujarat's Anti-Terrorist Squad (ATS) from Hyderabad.