In a big relief to BJP president Amit Shah, the Supreme Court on Monday refused to reopen the trial against him in the 2005 fake encounter killing of Sohrabuddin during his tenure as Gujarat's Home Minister.
A trial court in Maharashtra had discharged Shah in the case in December 2014 following which the victim’s brother Rubabuddin moved to withdraw his appeal protesting against the discharge. But a former IAS officer and social activist Harsh Mander filed an application before the trial court opposing Rubabuddin’s decision as also discharge of Shah. However, on November 23, 2015, the trial court allowed Rubabuddin to withdraw.
Mander went ahead challenging this order before the Bombay High Court, but lost as the HC questioned his “locus” in the trial and dismissed his petition on March 11, 2016. Mander then came to the apex court against this order.
It was battle royale on Monday as Mander’s legal team, headed by senior advocate Kapil Sibal, clashed with Shah’s counsel senior advocate Harish Salve. Sibal pointed out that the Sohrabuddin encounter killing was a case of such gravity that the Supreme Court monitored it and ordered CBI to conduct the trial outside Gujarat, in Maharashtra.
With Shah being discharged despite being chargesheeted for serious offences of murder, kidnapping, extortion, and criminal conspiracy, Sibal urged the Court not to close its eyes when even the CBI has “turned turtle” by choosing not to appeal against the discharge order with the change in Government at the Centre.
But the Bench of Justices Sharad Arvind Bobde and Ashok Bhushan consistently raised the issue of “locus” of Mander in a criminal trial. “We cannot leave the locus so wide open that any criminal trial can be gone into at the instance of an outsider…It is not a case where at your instance prosecution has been initiated.”
Salve countered saying in criminal matters, State is the master of criminal litigation. He showed recent cases where the apex court has disallowed third party interests in criminal matters as he said, “It’s a dangerous trend to allow anybody to join anybody's trial." But Sibal cited various decisions to the contrary where the Supreme Court held that if a public offence is committed, Section 397(3) of the Code of Criminal Procedure allows "any person” to seek revision against a trial court’s order.
But the Bench said, “You are not directly affected…we don't know whether you are a political person. Although we understand the politics behind the case, criminal law takes a different note…just realize the impact-a person whose rights under the criminal law stand exhausted, can he be again and again made to face trial after his discharge.”