MUMBAI: The CBI today argued before the Bombay High Court that the trial court hearing the alleged fake encounter case of Sohrabuddin Shaikh should not have discharged some police officials merely for want of government sanction.
Carrying out a "fake" encounter was not an act committed in discharge of official duty, and to prosecute the police officials for it did not need government permission, it said.
Additional Solicitor General Anil Singh, who appeared for the CBI, argued against the discharge granted to Rajasthan Police constable Dalpat Singh Rathod by the trial court for want of prior sanction.
A prior sanction for prosecution of a public servant is needed only for an offence committed by him while discharging his official duty, Singh said.
"Being part of a fake encounter or concocting a false story to hide such incident is not the official duty of any police officer. Hence, we (CBI) did not need to take any prior sanction from the Centre or the state to prosecute the accused in the case," the additional solicitor general said.
The CBI's submission is significant as the high court, at a previous hearing, had asked whether the lack of sanction can be adequate ground for discharge of police officials.
The high court is hearing a bunch of petitions filed by Shaikh's brother Rubabuddin Shaikh challenging the discharge of a few accused in the case by a special CBI court.
The high court is also hearing two pleas filed by the CBI challenging the discharge of retired IPS officer N K Amin and constable Rathod.
Rubabuddin Shaikh has challenged the discharge of Gujarat IPS officers D G Vanzara and Rajkumar Pandian and Rajasthan IPS officer Dinesh M N.
Vanzara and Pandian have now retired from service.
Justice Revati Mohite-Dere today started a day-to-day hearing on these applications.
ASG Singh said while Tulsiram Prajapati was killed by a team of Gujarat and Rajasthan police officers on December 28, 2006, the accused concocted a false story that he escaped from police custody while being brought back by a train to Udaipur from Ahmedabad after a case hearing.
"Rathod and three other constables claim they were accompanying him on the train on December 27, 2006, and he managed to escape somewhere near Shamlaji in Gujarat...
However, he was never on that train. He had been taken to the encounter spot near Ambaji village. The train (journey), the allegation that Prajapati threw some chili powder on the faces of the escort team and fled, are all a false cover-up story concocted by them," Singh said.
Rathod's lawyer Niranjan Mundargi denied Singh's allegations. While other police officials accompanying Prajapati on the train might have had played a role in the encounter, Rathod had no role in the conspiracy, he said.
ASG Singh also submitted that the statement of Nathuba Jadeja, driver of the vehicle in which Sohrabuddin Shaikh, his wife Kausar Bi and Prajapati were taken by the Gujarat ATS, had testified that that he saw Amin at the encounter spot.
CBI's arguments will continue on Monday.
Sohrabuddin, a gangster with alleged terror links, and his wife Kausar Bi were allegedly abducted by the Gujarat Anti-Terrorism Squad in November 2005. Shaikh was killed in an alleged fake encounter on November 2005 while his wife disappeared.
Prajapati, an eyewitness to the encounter, was allegedly killed by police in another fake encounter in December 2006.
The trial court discharged 15 of the 38 people named by the CBI in its chargesheet. Those discharged included several Gujarat police officials and BJP president Amit Shah.