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In the High Court of Judicature at Bombay

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In the High Court of Judicature at Bombay Bar & Bench (www.barandbench.com) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO. OF 2018 IN THE MATTER OF ARTICLE 226 OF THE CONSTITUTION OF INDIA; AND IN THE MATTER OF ARTICLE 14 OF THE CONSTITUTION OF INDIA; AND IN THE MATTER OF ILLEGAL, ARBITRARY AND MALAFIDE Bar & Bench (www.barandbench.com) - 2 - INACTION ON THE PART OF THE RESPONDENT NO. 1 IN CHALLENGING ORDER DATED 30/12/2014 PASSED BY SPL. JUDGE, CBI IN DISCHARGE APPLICATION (EXHIBIT-232) IN SESSIONS CASE NOS. 177/2013, 178/2013, 577/2013 & 312/2014. Bombay Lawyers‟ Association, a body registered under the provisions of the Society Registration Act, 1860, ... Petitioner Versus 1. Central Bureau of Investigation BI, 13th Floor, Plot No. C-35A, 'G' Block, Bandra Kurla Complex (BKC), Near MTNL Exchange, Bandra (East), Mumbai 400 098 Through its Joint Secretary, Zone-I 2. Administrative Committee of the Bombay High Court Through The Registrar General High Court Extension Building, Mumbai – 400 032 ... Respondents TO, THE HON’BLE CHIEF JUSTICE AND COMPANION HON’BLE JUDGES Bar & Bench (www.barandbench.com) - 3 - OF BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HUMBLE PETITION OF THE PETITIONERS ABOVENAMED MOST RESPECTFULLY SHEWETH: 1. That the Petitioner states the Petitioner is a body of advocates and it is registered under the Societies Registration Act, 1860. The Respondent Nos. 1 is the Central Bureau of Investigation (“CBI”), the prosecuting agency in Sessions Case Nos. 177/2013, 178/2013, 577/2013, 312/2014 before the Special Judge, CBI, Mumbai. Respondent No. 2 is the Registrar General of this Hon‟ble Court. Both the Respondents are „State‟ within the meaning of Article 12 of the Constitution. 2. That the instant Petition is being filed challenging illegal, arbitrary and malafide inaction of the Respondent No. 1 in challenging the Judgment and Order dated 30/12/2014 passed by the Special Judge, CBI, Mumbai in Discharge Application (Exhibit-232) filed by Amit Anilchandra Shah in Sessions Case Nos. 177/2013, 178/2013, 577/2013 and 312/2014. This Petition also challenges the decision of the Administrative Committee of this Hon‟ble Court of transferring the Special Judge, CBI, Mumbai Shri J.T. Utpat whom the said cases were originally assigned, in contravention of Order dated 27/09/2012 passed by Hon‟ble Supreme Court. The Respondent No.1 is the premier investigating agency of India. It has public duty to observe rule of law in its action which it has miserably failed. The present petition is being filed to protect public trust and confidence in the Bar & Bench (www.barandbench.com) - 4 - Respondent No. 1. Hence, this Petition may be treated as Public Interest Litigation. 3. The Petitioner states that it is established by a group of advocates practicing at Bombay High Court with the primary purpose to undertake activities facilitating improvement in the quality of legal services. It also aims to strive for judicial reforms bringing efficiency and transparency in the functioning of courts by involving people outside the confines of the legal profession. Some of the main objectives of the BLA read as under: - To uphold rule of law, promote higher values in legal profession and to preserve and protect independence of judiciary. - To strive for improvement in the institution of judiciary i.e. bar as well as the bench, for attainment of justice economic, political and social through constitutional means. 4. The Petitioner states that for the first time the Petitioner organized a function to celebrate "National Law Day" on November 26, 2012, at Mumbai. People from all walks of life participated in the event. Shri K. Sankaranayanan, Governor of Maharashtra was the Chief Guest and the Chief Justice of this Hon‟ble Court Shri Mohit S. Shah presided over the function. In the year 2013 Justice B.N. Srikrishna, former Judge, Supreme Court of India was the Chief Guest at “National Law Day”. In the year 2014 former Union Law Minister and Sr. Advocate Mr. Ram Jethmalani, was the Chief Guest. Justice J.N. Patel, former Chief Justice of Calcutta High Court presided over “National Law Day” function. Bar & Bench (www.barandbench.com) - 5 - The Petitioner had filed a PIL seeking direction from this Hon‟ble Court for celebration of National Law Day by the government and educational institutions. In pursuance to same, vide Notification No. F. No. 19022/11/2015-VI (E) dated 19/11/2015, Government of India decided to celebrate 26th day of the November as „Constitution Day‟ to promote constitutional values among citizens. It is now being celebrated all over India by the governments, as well as bar and courts. Taking into consideration the problem faced by the judges, court staff, advocates and litigants on account of scarcity of space in the present High Court building which in 150 year old, the President of the Petitioner organization. Mr. Ahmad Abdi has filed a PIL for new High Court building with adequate infrastructure in line of Supreme Court and Delhi High Court. The same was taken up by this Hon‟ble Court and various directions were issued from time to time. Now, State Government has allotted land for construction of new High Court building at Bandra Colony, Bandra East, Mumbai and has promised to the construct the same while redeveloping the Government Colony, Bandra. The PIL is still pending before this Hon‟ble Court. 5. That the Petitioner states that keeping in view its objectives, the Petitioner has continued its activities by way of organizing seminars, symposiums, debates, conferences, workshops and other like events for the benefit of the legal fraternity which are as follows: o Seminar on "RTI Act in Practice and Supreme Court Judgment: Problems and Prospects". Justice A.P. Shah, Bar & Bench (www.barandbench.com) - 6 - former Chief Justice Delhi High Court, Mr. Shailesh Gandhi, former Central Information Commissioner, spoke on the occasion. o "Study Circle" at the Government Law College (GLC), Mumbai, for upgrading skills of advocates particularly young advocates considering the ever-increasing number of new laws, various amendments in the existing laws and judgments of High Court and the Apex Court with emphasis on practical aspects. o Seminar on "Use and misuse of power to arrest by the police: Threat to personal liberty". Senior Advocates, Mr. Ram Jethmalani, Mr. Shrikant Bhat, Mr. Amit Desai and Mr. Ashok Mundargi, spoke on the subject. Hon'ble Mr. Justice S.C. Dharmadhikari, Judge Bombay High Court presided over the function. o Publishing a magazine "LAWNAMA" which contain articles written by advocates, judges and other prominent persons on various aspects relevant for improvement of the system dispensation of justice. o Seminar on "Judicial Standard and Accountability Bill, 2010" on February 21, 2014 at Mumbai. Justice A.P. Shah, former Chief Justice of Delhi High Court and presently Chairman of Law commission of India and Sr. Counsel of Bombay Mr. Aspi Chinoy spoke on the occasion. 6. The factual matrix of the present Petition is as under: Bar & Bench (www.barandbench.com) - 7 - 7. In November 2005, one Sohrabuddin Shaikh, alleged Lashkar-e- Toiba operative and his wife Kausarbi were killed in an encounter by Gujarat Police. It was alleged that the said encounter was fake. 8. In December 2006, one Tulsiram Prajapati, an eye witness to the said alleged encounter was also killed in an encounter in Chapri Village in Banaskantha District of Gujarat. Various Petitions were filed in the Hon‟ble Supreme Court challenging the encounter the said Sohrabuddin. 9. By the In 12th January 2010, the Hon‟ble Supreme Court directed the CBI to investigate the case relating to the killings of Sohrabuddin and his wife Kausarbi. On 23rd July, 2010, CBI filed Charge-Sheet naming Mr. Amit Shah, the then Home Minister of Gujarat now national president of BJP and 18 others including several police officers, as Accused. Vide its order dated 27th September 2012, the Hon‟ble Supreme Court transferred trial of the case from Gujarat to Mumbai. The observations made by the Hon‟ble Supreme Court regarding prevailing facts and circumstances are worth noting. Hereto annexed and marked as Exhibit-“A” is a copy of said judgment and order dated 27/09/2012. 10. As observed by Hon‟ble Supreme Court, the order (directing the CBI to investigate the killings of Sohrabuddin and his wife Kausarbi) came to be passed after the proceedings regarding to those killings had gone on for over four years, initially on the basis of two letter petitions and subsequently under the Writ Petition (Crl.) No. 6 of 2007 (Rubabbuddin Sheikh v. State of Bar & Bench (www.barandbench.com) - 8 - Gujarat). At the beginning, the State of Gujarat stoutly and vociferously denied that the encounter in which Sohrabuddin was killed was stage-managed and it was only later that it came around to accept that it was actually so and his wife Kausarbi too was killed while she was in illegal police custody and her body was disposed of in a manner as to make it untraceable. Some sort of an investigation was made by Gujarat Police and a charge- sheet was submitted on 16-7-2007 against thirteen (13) persons who were members of the Anti-Terrorist Squad, Gujarat Police and the Special Task Force, Rajasthan Police. 11. On behalf of the writ petitioner (Rubabbuddin Sheikh, the brother of the slain Sohrabuddin), however, it was submitted that the charge-sheet was deceptive and was designed more to cover up rather than uncover the entire conspiracy behind the murder of Sohrabuddin and his wife. It was pointed out that Gujarat Police had completely ignored the killing of Tulsiram Prajapati in a similar police encounter one year after the killing of Sohrabuddin who was killed simply because he was a witness to the abduction of Sohrabuddin and his wife by the police party.
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