The trial of this Century

Arup Kumar Sen

On December 21, 2018, a Special CBI Court acquitted all 22 accused in the alleged fake encounter killings of Sohrabuddin Shaikh, his wife Kausar Bi and his associate Tulsiram Prajapati more than a decade ago, saying that the evidence brought before the Court could not establish the role of any accused in the case. Justice S J Sharma pronounced the verdict in a packed courtroom with all the accused present. This was Judge Sharma's last judgement in this tenure. He said: "I am sorry to the families of all the deceased but the way evidence was presented before me, prosecutions' case against the accused could not be substantiated".

The special court which acquitted all 22 accused said in its around 350-page judgement that the CBI investigation against the accused was "politically motivated". To put it in the words of the Special CBI Judge, S J Sharma: "My predecessor, while passing an order of discharge in the application of accused number 16 (Amit Shah), clearly recorded that the investigation was politically motivated. Having given my dispassionate consideration to the entire material placed before me and having examined each of the witnesses and the evidence closely, I have no hesitation in recording that a premier investigating agency like the CBI had before it a pre-mediated theory and a script intended to anyhow implicate political leaders, and the agency thereafter merely did what was required to reach that goal rather than conducting an investigation in accordance with law". (Cited in The Indian Express, December 29, 2018).

It should be mentioned in this connection that a total of 16 out of 38 accused were discharged from the case before. Out of the 210 witnesses that have been examined, 92 turned hostile. Appearing on behalf of the CBI, Special Public Prosecutor, B P Raju, made the following statement, after Judge S J Sharma pointed out several lacunae in the CBI's investigation: "Deposition of witnesses took place after 12 years, many of the witnesses stated that they could not remember the details and our star witnesses turned hostile. Thus, the entire chain of evidence has gone wrong and as a result we could not bring direct evidence". (See Sohrabuddin Case, Live Law, in December 6, 2018).

The above judgement of the special CBI court has an immediate pre-history. On November 2, 2018, the Bombay High Court dismissed the PIL filed by Bombay Lawyers Association (BLA) seeking a writ of mandamus to be issued, directing the CBI to challenge BJP president Amit Shah's discharge in the alleged fake encounter case of Sohrabuddin Sheikh. The senior advocate, Dushyant Dave, appeared on behalf of the BLA and reportedly argued that the CBI had faltered on its part by not challenging the discharge. He said: "It is our premier investigating agency and is answerable to none but its own conscience. Not challenging the discharge of one of the main accused in this case is an omission on their part". Dave further argued: "Extra ordinary facts require extraordinary actions… 16 accused out of 38 have been acquitted. Out of the discharged accused, some of the most powerful in country are there. The same CBI had made statement before the trial court that he (Amit Shah) is the main accused in this case and once the government changed, CBI's stand also did…If 16 accused are discharged, what is the sanctity of the trial? This is miscarriage of justice".

The seminal observation of Hannah Arendt, made in her book, Responsibility and Judgment (Schocken Books, New York, 2003), comes to one's mind in the present context: "Legal and moral issues are by no means the same, but they have a certain affinity with each other because they both presuppose the power of judgment". Arendt's deliberations on "Thinking and Moral Considerations" (1971), incorporated in the book, raised another seminal question: "Thinking deals with invisibles, with representations of things that are absent; judging always concerns and things close at hand. But the two are interrelated in a way similar to the way consciousness and conscience are interconnected".

Nobody knows whether the verdict of the triple- murder trial will be rethought in the apex court. Sohrabuddin Sheikh's brother, Rubabuddin, who was present in the court on the day of the verdict (December 21, 2018), reportedly said that he was disappointed at the verdict and would appeal against it in the Supreme Court.

The Sohrabuddin Sheikh murder trial is organically connected with the contested world of politics.

What the trial in the case of alleged extra-judicial killing of Sohrabuddin Sheikh and his wife Kausar Bi has made clear is that there is an urgent need for witness protection in criminal cases where powerful perpetrators often have the ability to change the outcome of the trial in their own favour. What started with the silencing of Sheikh's wife Kausar Bi and his associate Tulsiram Prajapati, eventually led to 92 witnesses turning hostile in the case!

From the mysterious death of Judge Brijmohan Loya who was presiding over the case to the first ever press conference by four sitting justices of the Indian Supreme Court, such has been the journey of this case that it can easily be termed the trial of this century.

Vol. 51, No.28, Jan 13 - 19, 2019