The Supreme Court today made it clear to a senior IPS officer, facing arrest in the Ishrat Jahan fake encounter case, that it will not quash the FIR lodged against him and others following directions from the Gujarat High Court.
"We are unanimous that quashing part cannot be entertained. We will not quash the FIR... It will not be appropriate to deal with it," a bench comprising justices Gyan Sudha Misra and Madan B Lokur said.
"This prayer cannot be entertained in a petition filed under Article 32 (of the Constitution which provides remedies to enforce fundamental rights)," it said.
On the issue of grant of relief of protection against imminent arrest of Additional DGP P P Pandey, while one judge had certain reservations, the other judge said a maximum of six week period can be considered for his not being arrested.
Pandey had "provided so-called crucial intelligence inputs" to fellow policemen that Ishrat and three others were LeT operatives and were on a mission to assassinate Gujarat Chief Minister Narendra Modi, Additional Solicitor General (ASG) Indira Jaising, appearing for the CBI, said.
"At the most, I can consider granting you the protection for four to six weeks against the arrest, but my learned colleague (Justice Lokur) has reservations. You satisfy him," Justice Misra said, while fixing the matter for further hearing on June 11.
During the hearing, Justice Misra, time and again, asked Jaising, to observe restraint as she was vehemently opposing the issuance of notice to the agency on the plea of the IPS officer.
"Why are you so agitated? ...Please mind the manner in which you (ASG) are addressing the court," Justice Misra said.
However, at the end of hearing, the ASG sought an apology.
"We don't need an apology. The apology should reflect in the conduct," the judge said.
Pandey, a 1982-batch IPS officer, was Joint Commissioner of Police when on June 15, 2004, Ishrat Jahan, Javed Shaikh alias Pranesh Pillai, Amjadali Akbarali Rana and Zeeshan Johar were killed in an encounter with the Gujarat police on the outskirts of Ahmedabad.
An FIR against the police officers were lodged by the Special Investigation Team (SIT) on December 16, 2011 at the directions of the Gujarat High Court before whom two petitions were filed by the mother and father of victims Ishrat and Javed Shaikh respectively.
During the hearing, Jaising raised preliminary objections to the plea of the IPS officer saying that instead of approaching the apex court, he should have moved the High Court under section 482 of the CrPC (which deals with the power to quash criminal proceedings).
Responding to a query, raised by the court on the role of Pandey in the case, she said the officer had provided intelligence inputs that Ishrat and others were terrorists.
"The whole investigation will go for a toss if the protection against arrest is granted to the petitioner. We need to have the custodial interrogation of the accused," she said.
The victims were in the custody of the Gujarat police before they were "done to death at point blank range", she said adding that the ballistic and other reports suggest that.
"He (Pandey) is an absconding police officer. Ask him to surrender. After all, he can get bail and can be acquitted if charges are not proved," she said and sought dismissal of the petition.
"The High Court is seized of the matter and this court cannot preempt the decison of that court," the ASG said, adding that the police officer did not challenge the registration of the FIR.
Pandey, in his plea, has sought quashing of the FIR and protection against the arrest on the ground that he has been falsely implicated by his colleagues, also IPS officers, who are jealous of him.
The officer, against whom a special CBI court had also issued an arrest warrant on May 2 for failing to respond to the summons of the probe agency, said in his plea that he was not involved in anyway in the case and he had just conveyed the information received from the intelligence to the crime branch officials.