IMPORTANT POINT
Power u/s 406 of Criminal Procedure Code,1973 has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial.

Headnote:CBI Investigation-Order passed by Apex Court directing the CBI to investigate the case relating to the killings of Sohrabuddin and his wife Kausarbi- CBI took up the investigation-In the charge-sheet submitted by the CBI, one of the accused was respondent.1 , who till then was the minister of State for Home in the State Government- The accusation against respondent.1 was that he was the lynchpin of conspiracy- Following the submission of charge-sheet by CBI, respondent.1 was arrested and was sent to judicial custody-Grant of bail to respondent.1 by High Court-Appeal thereagainst-In the facts and circumstances of case bail granted to respondent.1 about two years ago held not liable to be set aside-However, apprehension expressed by CBI that respondent.1 may misuse the freedom and try to subvert the prosecution could not be lightly brushed aside- Hence direction given that respondent1 shall give an undertaking in writing to the trial court that he would not commit any breach of the conditions of the bail bond and would not try to influence any witnesses or tamper with the prosecution evidence in any manner- Direction also given that respondent1 to report to CBI office every alternate Saturday-Appeal dismissed (Paras 29 to 32)
        Criminal Procedure Code,1973-Section 406- Transfer petition filed by Central Bureau of Investigation seeking transfer of Sohrabuddin case outside State of Gujarat for trial- Power u/s 406 has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. -Said power can be exercised when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution and when there is material to show that accused may influence the prosecution witnesses or cause physical harm to the complainant-Manner in which Sohrabuddin case was proceeded before Apex Court in itself, without anything else, made out a strong case for transferring the trial of the case outside State-Direction given for transfer of said case to court of CBI, Bombay- Transfer petition allowed (Paras 33 to 45)
       Facts of the Case :
        Present appeal and a transfer petition has been filed by Central Bureau of Investigation .The appeal is directed against order passed by High Court granting bail to respondent.1 in this appeal and accused No.16 in the transfer petition in "the Sohrabuddin case", who until his arrest in the case was the minister of State for Home in the State of Gujarat. In the transfer petition, a prayer is made to transfer the Sohrabuddin case outside the State of Gujarat for trial.
       Findings of the Court :
        A. In the facts and circumstances of case bail granted to respondent.1 about two years ago held not liable to be set aside. However, apprehension expressed by CBI that respondent.1 may misuse the freedom and try to subvert the prosecution could not be lightly brushed aside. Hence direction given that respondent1 shall give an undertaking in writing to the trial court that he would not commit any breach of the conditions of the bail bond and would not try to influence any witnesses or tamper with the prosecution evidence in any manner.
        B. Manner in which Sohrabuddin case was proceeded before Apex Court in itself, without anything else, made out a strong case for transferring the trial of the case outside State. Direction was given for transfer of said case to court of CBI, Bombay.
       Result : Ordered Accordingly

JUDGMENT

Aftab Alam, J.

1. Leave granted.

2. This order deals with an appeal and a transfer petition filed by the Central Bureau of Investigation (the CBI). The appeal (arising from SLP (Criminal) No.9003 of 2010) is directed against the order dated October 29, 2010 passed by the Gujarat High Court in Criminal Miscellaneous No.12240/2010 granting bail to Amitbhai Anil Chandra Shah (respondent no.1 in this appeal and accused No.16 in the transfer petition) in case No.RC BS1/S/2010/0004 (Criminal Case No.5 of 2010) (“the Sohrabuddin case”), who until his arrest in the case was the minister of State for Home in the State of Gujarat. In the transfer petition, a prayer is made to transfer the Sohrabuddin case outside the State of Gujarat for trial. Both the appeal and the transfer petition are the result of the developments following the orders passed by the Court in Writ Petition (Criminal) No.6 of 2007 Rubabbuddin Sheikh v. State of Gujarat & Others, seeking a direction for the investigation of the case concerning the killing of Sohrabuddin and the disappearance of his wife, Kausarbi by the CBI. In order to put the two issues in context, therefore, it is necessary to slightly go back into the facts of that case and see how the matter unfolded before it came to the present stage.

3. This Court by order dated January 12, 2010, (2010) 2 SCC 200 passed in the aforesaid writ petition directed the CBI to investigate the case relating to the killings of Sohrabuddin and his wife Kausarbi. The order came to be passed after the proceedings in this Court in regard to those killings had gone on for over four years, initially on the basis of two letter-petitions and subsequently under the aforesaid writ petition. 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 the Gujarat Police and a charge-sheet was submitted on July 16, 2007 against thirteen (13) persons who were members of the Anti Terrorist Squad, Gujarat Police and the Special Task Force, Rajasthan Police. 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 the 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. On September 30, 2008 the Court was informed that following the submission of the charge-sheet, even as the matter was under the scrutiny of this Court, the case was hurriedly committed and the trial court had fixed the hearing on the charge on a day to day basis. The Court on that date stayed further proceedings in Sessions Case no. 256 of 2007 and directed for the records of the case to be put in the safe custody of the Registrar General of the Gujarat High Court.

4. In further proceedings before this Court, the State of Gujarat took the stand that all that was required to be done was done in the matter and there was nothing more for this Court to do. It was argued on behalf of the State that with the submission of the charge-sheet this Court’s power and authority to monitor the investigation came to an end and the case came under the exclusive jurisdiction of the magistrate/trial court who would proceed further on the basis of the charge-sheet submitted by the police.

5. This Court felt otherwise. It appeared to the Court that there were a number of aspects of the case, including

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2012 Supreme(SC) 669

IMPORTANT POINT Power u/s 406 of Criminal Procedure Code,1973 has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial.

Cases Referred (2)

IMPORTANT POINT
Power u/s 406 of Criminal Procedure Code,1973 has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial.