Why CBI’s case against Amit Shah was really a fishing expedition

Last week, a CBI court in Mumbai (where the trial in the case of fake encounters of Sohrabuddin Sheikh, his wife and a material witness, Tulsiram Prajapati, is to be held) accepted the discharge application filed by BJP President Amit Shah, a co-accused charged with being the “lynchpin” of the conspiracy to kill the three. This discharge application means that Shah’s name is removed from the list of accused who shall face trial in the case. It is, therefore, vital to understand the whats and whys of the decision that has gone in Shah’s favour. At the pre-trial stage, an accused has the option of filing a discharge application to remove himself from the list of accused. This application involves hearing whether, based on the prosecution’s case and materials alone, a trial is warranted. [caption id=“attachment_2030033” align=“alignleft” width=“380”]  PTI image[/caption] In a sense, an accused can ask for a judicial pre-vetting of the prosecution’s case against the accused. Notably, if the discharge application is denied, that still does not imply that the accused is guilty because the trial provides the accused the opportunity to challenge the prosecution’s case with detailed arguments, cross-examination of witnesses and questioning the evidence. If the court holds that a trial is not warranted and the discharge application is accepted, that effectively means that the court thinks there is absolutely no value in the prosecution’s case. The onus on the accused – the hurdle to cross – is arguably greater at this stage. Amit Shah has, therefore, crossed this bigger hurdle in having the case against him discharged before trial. CBI’s case against Shah primarily hinged on the testimony of two builder brothers Raman Patel and Dashrath Patel. The Patel brothers testified that Amit Shah and the Gujarat Police pressured them to give testimony incriminating Sohrabuddin in a shootout case (in which the Patel brothers themselves were accused!) so that Sohrabuddin could be nailed. Shah is also alleged to have told something to the effect that Sohrabuddin left no option for himself. Evidentially speaking, this testimony amounted to hearsay and, hence, was inadmissible. However, even if it were considered, this testimony suffered from factual deficiencies, as the Gujarat High Court noted while giving bail to Shah. The transcript and other evidence suggested that Shah’s meeting was for settlement of their own cases regarding huge default and defalcation and there was no reference to the Sohrabuddin case. Further, the Patel brothers alleged they paid a huge sum to Shah in instalments through an individual Ajay Patel. It turned out that on some of the dates claimed for payment via installments, Ajay Patel wasn’t even in the country! CBI also based its argument on the number of calls Shah made to some of the other co-accused officers during the periods in question. Without buttressing the number of calls with what Shah actually spoke during those conversations to pin guilt was very far-fetched. Moreover, as Shah claimed, CBI didn’t analyse details of his calls to officers of the Gujarat police before and after those periods in question so as to enable a holistic understanding of Shah’s style of frequent interactions with on-field officers. The CBI’s motive in its desperation to nail the Shah-Modi combine during the process of building up the case was also very evident. CBI file notings clearly indicate how CBI thought it necessary to arrest Shah so that other accused will have the “incentive” to become approvers and would be “readily usable”. This is something the Gujarat High Court observed which revealed CBI’s “manner of investigation”. Here is a noting reproduced in the Gujarat HC judgment ( see excerpt ). Also, as Arun Jaitley has repeatedly pointed out , the CBI communiqué also reveals how critical the arrest of Shah was to reach the eventual target of Narendra Modi despite the fact that CBI Legal Department thought there was no case against Shah. The CBI then tried another trick. One of the reasons why the Supreme Court transferred the case to CBI from the Gujarat police’s jurisdiction was because the latter did not see a connection between killings of Sohrabuddin and his wife, and the later killing of a material witness Tulsiram Prajapati. Once CBI got the case, it kept stressing all along that the killing of Prajapati was connected to the earlier killings as a part of the same conspiracy. That is how it accentuated the seriousness of the Sohrabuddin killing. However, when it later realised Shah was not only on bail in this conspiracy but was allowed to return to Gujarat after a two-year exile, it tried to file a fresh separate FIR for the killing of Tulsiram Prajapati so that it could have the grounds to arrest Shah to keep him confined for a little longer. This incidentally was in the later part of 2012 – with the Gujarat assembly elections round the corner. That attempt, however, was squarely rejected by the SC with scathing observations. Not only was the CBI’s act in violation of the Constitution, it also went against previous orders of the SC. Here is a concluding paragraph of SC’s judgment ( read excerpt ). After this failure, the ‘black-beard-white-beard’ theory started to float around in another encounter – that of Ishrat Jahan – to try to nail Amit Shah. This was not only hearsay, but double hearsay. A witness had overheard another accused officer tell someone else that the Ishrat operation had the consent of ‘black beard’ and ‘white beard’! Another reason SC transferred the case to CBI was the Gujarat police’s inability to identify Andhra Pradesh police personnel who allegedly helped the Gujarat ATS officials in covering up the killings. Critically, however, for a long time, no serious investigation was made with regard to this angle of involvement of Andhra Pradesh officials. It is useful to note here that from 2004 till March 2014, Andhra Pradesh had Congress governments under whose rule the Andhra authorities did not cooperate with the Gujarat police authorities. Clearly, CBI never really had a case against Shah in the fake encounter cases. It was a fishing expedition in which CBI explored several waters to somehow catch someone who went on to be one of the most important individuals of BJP’s spectacular victory in the 2014 elections. What was patently obvious has a judicial validation now.