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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1503 OF 2012 [ARISING OUT OF SLP (CRIMINAL) NO.9003 OF 2010]

Central Bureau of Investigation … Appellant

Versus

Amitbhai Anil Chandra Shah and Another … Respondents

WITH

TRANSFER PETITION (CRIMINAL) NO.44 OF 2011

Central Bureau of Investigation … Petitioner

Versus

Dahyaji Gobarji Vanzara & Others … Respondents  

J U D G M E N T

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

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(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, 20101 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  

1 (2010) 2 SCC 200

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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  

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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 the killing of Tulsiram Prajapati  

that were not addressed at all by the Gujarat Police. The State of Gujarat,  

however, continued to maintain that the killing of Tulsiram Prajapati in  

the police encounter had no connection with the killings of Sohrabuddin  

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and his wife. That being the position taken by the State it was but natural  

for the State police not to investigate any linkages between the killings of  

Sohrabuddin and his wife on the one hand and the killing of Tulsiram  

Prajapati on the other.

6. Among the number of reasons that weighed with the Court to ask  

the CBI to investigate into the killings of Sohrabuddin and his wife, even  

after  the  submission  of  charge-sheet  by  the  Gujarat  Police  was  the  

trenchant refusal by the State of Gujarat and the State police to see any  

connection  between  the  killings  of  Sohrabuddin  and  his  wife  and  the  

killing  of  Tulsiram  Prajapati.  In  the  order  dated  January  12,  2010  by  

which the investigation of the case was entrusted to the CBI, the Court  

commented  upon  the  persistent  effort  to  disconnect  the  Prajapati  

encounter from the killings of Sohrabuddin and his wife as under:

“From the charge-sheet,  it  also appears that the third  person was ‘sent somewhere’. However, it appears that  the  literal  translation  of  the  charge-sheet  in  Gujarati  would mean that he was ‘anyhow made to disappear’.  From this, we are also satisfied that an attempt was  made  by  the  investigating  agency  of  the  State  of  Gujarat to mislead the Court.” (paragraph 63 of the  order)

“The  possibility  of  the  third  person  being  Tulsiram  Prajapati  cannot  be  ruled  out,  although  the  police  

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authorities or the State had made all possible efforts  to show that it was not Tulsiram. In our view, the  fact surrounding his death evokes strong suspicion  that  a  deliberate  attempt  was  made  to  destroy  a  human witness.” (paragraph 65 of the order)

“No justification can be found for the Investigating  Officer Ms. Johri walking out of the investigation  with respect to Tulsiram Prajapati’s death without  even  informing  this  Court.”  (paragraph  66  of  the  order)

      (emphasis added)

7.   Further,  recounting the many deficiencies in the investigation by  

the Gujarat Police, this Court also noticed its omission to analyse the call  

details of the accused. The Court observed:

“So far as the call records are concerned, it would  be evident from the same that  they had not  been  analysed  properly,  particularly  the  call  data  relating  to  three  senior  police  officers  either  in  relation  to  Sohrabuddin’s  case  or  in  Prajapati’s  case.” (paragraph 66 of the order)

8. In light of the above and a number of other acts of omission and  

commission as appearing from the eight Action Taken Reports (submitted  

in course of hearing of the writ petition) and the Gujarat Police charge-

sheet, this Court asked the CBI to investigate the killings of Sohrabuddin  

and his wife Kausarbi, giving the following directions:

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“82. Accordingly, in the facts and circumstances even at this  stage the police authorities of the State are directed to hand  over the records of the present case to the CBI Authorities  within  a  fortnight  from  this  date  and  thereafter  the  CBI  Authorities shall take up the investigation and complete the  same  within  six  months  from the  date  of  taking  over  the  investigation  from  the  State  police  authorities.  The  CBI  Authorities shall investigate all aspects of the case relating  to  the  killing  of  Sohrabuddin  and  his  wife  Kausarbi  including  the  alleged  possibility  of  a  larger  conspiracy.  The report of the CBI Authorities shall be filed in this Court  when  this  Court  will  pass  further  necessary  orders  in  accordance with the said report, if necessary. We expect that  the  police  authorities  of  Gujarat,  Andhra  Pradesh  and  Rajasthan  shall  cooperate  with  the  CBI  Authorities  in  conducting the investigation properly and in an appropriate  manner.”

                                                      (emphasis added)

9. It may here be noted that another writ petition [being Writ Petition  

(Criminal) No.115 of 2007] filed by Narmada Bai, the mother of Tulsiram  

Prajapati, relating to the encounter killing of her son was till that stage  

being heard along with the Sohrabuddin case (Writ  Petition (Criminal)  

No.6  of  2007).  But  in  the  concluding  part  of  the  order,  in  regard  to  

Prajapati’s case it was directed as follows:

“Writ Petition (Crl.) No.115 of 2007 84. So far as WP (Crl.) No.115 of 2007 is concerned,  

let  this  matter  be  listed  after  eight  weeks  before  an  appropriate Bench.”

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10. As directed by this Court, the CBI took up the investigation into the  

Sohrabuddin case after instituting a fresh FIR on February 1, 2010. In the  

call records of the accused that had not been worked out in the hands of  

Gujarat  Police,  the  CBI  claims  to  have  found  a  valuable  source  of  

important  clues.  On  the  basis  of  the  call  records,  the  statements  of  

witnesses and other materials collected by it, the CBI claims that it has  

unearthed a conspiracy of much larger proportions. It submitted a charge-

sheet on July 23, 2010 in which, in addition to the thirteen accused named  

in the charge-sheet  of  the Gujarat  Police,  another 6 persons were also  

named as accused, being part of the larger conspiracy. In the charge-sheet  

submitted by the CBI, one of the accused is Amitbhai Shah, who till then  

was  the  minister  of  State  for  Home  in  the  State  Government.  The  

accusation  against  Amitbhai  Shah  is  that  he  was  the  lynchpin  of  the  

conspiracy.

11. Following the submission of the charge-sheet by the CBI, on July  

25, 2010, Amitbhai Shah was arrested and was sent to judicial custody.

12. As noted above,  this  Court  had asked the CBI to  investigate  all  

aspects of the case relating to the killings of Sohrabuddin and his wife  

Kausarbi,  including  the  possibility  of  a  larger  conspiracy.  The  CBI,  

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therefore,  felt  that  it  was  both  authorized  and  under  the  obligation  to  

investigate the Prajapati  case as well,  as it  prima facie appeared to be  

integrally  connected  with  the  Sohrabuddin  case.  The  Gujarat  Police,  

however, would neither hand over the records of the Prajapati case to the  

CBI nor allow it to make any independent investigation in the Prajapati  

case.  On  the  contrary,  the  Gujarat  Police  purported  to  complete  its  

investigation and, like the case of Sohrabuddin, rather hurriedly filed the  

charge-sheet in the case on July 30, 2010, followed by a supplementary  

charge-sheet on July 31, 2010, before the Judicial Magistrate, First Class,  

Danta, Banaskantha District. The magistrate, equally quickly committed  

the case to the court of Sessions in two days’ time on August 2, 2010 even  

without a proper compliance with the provisions of section 207 of the  

Code of Criminal Procedure.  

13. According to the charge-sheet, Prajapati was indeed killed in a fake  

encounter  but  there  was  nothing  more  to  it  than  that.  There  was  no  

attempt to investigate any larger conspiracy or to try to connect it with the  

Sohrabuddin case. On the other hand, the whole effort was to present it as  

a separate case, quite unconnected with the case of Sohrabuddin.  

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14. In the meanwhile, Amitbhai Shah was granted bail by the Gujarat  

High  Court,  by  order  dated  October  29,  2010  passed  in  Criminal  

Miscellaneous Application No.12240 of 2010. Against the order passed  

by the High Court, the CBI immediately came to this Court in SLP (Crl.)  

No.9003 of 2010, giving rise to the present appeal seeking cancellation of  

bail granted to Amitbhai Shah. On October 30, 2010, notices were issued  

to respondent nos.1 and 2, i.e. Amitbhai Shah and the State of Gujarat. At  

the time of issuance of notice, on the prayer made on behalf of the CBI to  

stay  the  operation  of  the  bail  order  passed  by  the  High  Court  on  the  

ground  that  once  released  on  bail  the  accused  would  tamper  with  

prosecution evidence, it was stated on behalf of respondent no.1 that he  

would leave Gujarat  the following morning and would stay out  of  the  

State till further orders that may be passed by this Court.  

15. On November 25, 2010, the CBI submitted a copy of its final report  

before this Court, copies of which were directed to be given to the parties.  

16. On December 14, 2010, it was brought to the notice of the Court  

that  the  Prajapati  case  had so  far  not  been listed  before  the  Bench to  

which it was assigned and, consequently, no order was passed in that case  

by the Court. Nevertheless, the trial court was proceeding to start the trial  

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of the accused on the basis of the charge-sheet submitted by the Gujarat  

Police. A grievance was made that in case the trial court was allowed to  

proceed, it might be too late by the time any order is passed by this Court  

in the Prajapati case. At that stage, Mr. Tushar Mehta, Sr. AAG appearing  

for the State of Gujarat fairly stated that no further proceeding would take  

place in the case arising from the charge-sheet submitted by the Gujarat  

Police in the Prajapati case until this Court passed some orders on the  

status report submitted by the CBI in this case and the Writ Petition (Crl.)  

No.115 of 2007 was taken up by the Court.  

17. On January  13,  2011,  the CBI filed  the present  transfer  petition  

(Transfer  Petition  (Criminal)  No.44  of  2011)  for  transfer  of  the  

Sohrabuddin case bearing Special Case No.5 of 2010 pending in the court  

of Additional Chief Metropolitan Magistrate, CBI, Mirzapur Ahmedabad,  

titled “CBI v.  D.G. Vanzara & Ors” to the CBI court in Mumbai or any  

other State  and for a further direction for the constitution of a special  

court. This,  in short,  is about the proceedings of the Sohrabuddin case  

before this Court.   

18. At this point, we may also take a brief look at the Prajapati case,  

Writ Petition (Criminal) No.115 of 2007 before this Court. It is interesting  

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to note that in the first counter affidavit filed in the Prajapati case, the  

State  took  the  stand  that  the  petition  filed  under  Article  32  of  the  

Constitution was not maintainable because a case was already registered  

with the police according to which the son of the writ petitioner was killed  

in a police encounter. It was contended that the writ petition filed in the  

Sohrabuddin case was for a writ  of  habeas corpus and it  was for  that  

reason alone that  it  was entertained by this  Court.  There was no such  

angle in the present case. In the counter affidavit it was further stated that  

Tulsiram Prajapati was a dreaded criminal, involved in 21 criminal cases.  

As to the manner of his death, the counter affidavit reiterated and fully  

supported  the police  version  as  stated  in  the  two FIRs  relating  to  his  

alleged escape from the police custody while being taken back after court  

remand and his death in a police encounter on the following day. It was  

pointedly denied that Tulsiram Prajapati was a witness in the Sohrabuddin  

case. It was asserted that there was no connection in the two cases.

19. However, by the time the writ petition came up for hearing, another  

affidavit was filed on behalf of State of Gujarat on August 19, 2010. In  

this affidavit it was conceded that Tulsiram Prajapati was killed in a fake  

encounter.  It  was, however,  submitted that  the State,  CID (Crime) had  

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already filed a charge-sheet in the case. It was further the stand of the  

State that the encounter killing of Tulsiram Prajapati had nothing to do  

with the killings of Sohrabuddin and Kausarbi.

20. It is, thus, to be seen that the Prajapati case also followed exactly  

the  same  pattern  as  the  case  of  Sohrabuddin.  Initially,  there  was  a  

complete  denial  by the State that  he was killed in any kind of a fake  

encounter. But, when it became impossible to deny that the story of the  

encounter  was false,  an investigation was swiftly made by the Gujarat  

Police and charge-sheet was submitted. On the basis of the charge-sheet,  

on the one hand an attempt was made to proceed with and conclude the  

trial proceedings as quickly as possible and on the other hand this Court  

was told that after the submission of the charge-sheet it was denuded of  

the authority to direct any further investigation. There was, thus, clearly  

an attempt not to allow the full facts to come to light in connection with  

the two cases.

21. Further,  in  the  Prajapati  case  the  State  insisted  till  the  end  that  

though he too was killed in a fake encounter there was no connection  

between  his  killing  and  the  killings  of  Sohrabuddin  and  his  wife,  

Kausarbi.

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22. The Prajapati case came up before the Court and it was allowed by  

judgment  and  order  dated  April  8,  20112.  The  Court  debunked  the  

contention  that  there  was  no  connection  between  the  killings  of  

Sohrabuddin  and  Kausarbi  and  the  killing  of  Tulsiram  Prajapati  (see  

paragraphs 47 to 60 of the judgment) and also rejected the claim of the  

State Government that the investigation made in his case was complete  

and  satisfactory.  It  directed  the  State  Government  to  handover  the  

investigation of the Prajapati case as well, to the CBI.

23. In  pursuance  of  the  Court’s  direction,  the  CBI  investigated  the  

Prajapati  case  and  even  as  the  hearing  on  the  present  appeal  and  the  

transfer petition was underway submitted the charge-sheet on September  

4, 2012. In the Prajapati  charge-sheet Amitbhai Shah and a number of  

very senior police officers of the State are cited as accused.

24. The facts and circumstances noted above, very briefly, provide the  

background in which the case of the CBI for cancelling the bail granted to  

Amitbhai Shah (accused No.16 in transfer petition and respondent No.1 in  

criminal appeal) in Sohrabuddin case and transferring that case for trial  

outside Gujarat is to be considered.   

2 (2011) 5 SCC 79

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25. Mr. Tankha, senior advocate, appearing for the CBI made a strong  

plea  for  cancelling  the  bail  of  Amitbhai  Shah  and  transferring  the  

Sohrabuddin case outside Gujarat.  Mr.  Ram Jethmalani,  learned senior  

advocate, appearing on behalf of Amitbhai Shah with equal vehemence  

opposed the prayer for cancellation of his bail. However, insofar as the  

transfer of the case is concerned, at the end of the hearing he stated that  

Amitbhai Shah was prepared to face the trial  anywhere and he would,  

therefore,  accept  the  transfer  of  the  case  without  demur.  The  transfer  

petition  was,  however,  opposed  by  the  State  and  the  other  accused,  

namely,  Dahyaji  Gobarji  Vanzara  (respondent  No.1  in  the  transfer  

petition),  Rajkumar Pandyan (respondent No.2 in the transfer  petition),  

Naransinh  Harisinh  Dabhi  (respondent  No.5  in  the  transfer  petition)  

Balkrishan Lalkrishna Chaubey (respondent No.6 in the transfer petition)  

and Narendra Kantilal Amin (respondent No.12 in the transfer petition)  

and their respective counsel were heard by the Court at length.  

26. The submissions made by the CBI in support of the prayer for the  

cancellation of bail  and the transfer  of  the  case  were substantially  the  

same. It was submitted on its behalf that Amitbhai Shah presided over an  

extortion racket.  In his capacity as the minister for Home, he was in a  

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position to place his henchmen, top ranking policemen at positions where  

they could sub-serve and safeguard his interests.  He was part of the larger  

conspiracy to kill Sohrabuddin and later on his wife and finally Tulsiram  

Prajapati, as he was a witness to the abduction of Sohrabuddin and his  

wife by the police party. Taking advantage of his position as the minister,   

he  constantly  obstructed  any  proper  investigation  into  the  killings  of  

Sohrabuddin and Kausarbi even when the matter came to the notice of  

this Court and this Court issued directions for a thorough investigation  

into their killings.  It was at his behest and under his pressure that the top  

ranking police officers tried to cover up all signs of his involvement in the  

killings  of  Sohrabuddin,  Kausarbi  and  Tulsiram  Prajapati  and  

systematically suppressed any honest investigation into those cases and  

even tried to mislead this Court. Even after the investigation was handed  

over to the CBI, he made things very difficult for them and the CBI was  

able to do the investigation against great odds.  It is further submitted that   

the phone records pertaining to the periods when Sohrabuddin and his  

wife were abducted, Sohrabuddin was killed and his wife was killed and  

her body was disposed of by burning and of the later period at the time of  

killing  of  Prajapati  showed  Amitbhai  Shah  in  regular  touch  with  the  

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policemen, accused in the case, who were actually executing the killings  

and the other allied offences. There was no reason for the minister for  

State of Home to speak directly on phone to police officers, far below him  

in the chain of command and the explanation given on his behalf in regard  

to those phone calls was on the face of it false and unacceptable.  Apart  

from  the  phone  records,  there  were  many  other  materials  and  

incontrovertible circumstances to establish the charges against Amitbhai  

Shah.   

27. It was submitted that his release on bail and permission to freely  

stay in Gujarat would greatly jeopardize the efforts of the CBI to bring  

home the charges against him.  Even after his arrest and while in jail, he  

had sufficient resources and influence to tamper with the evidence and to  

intimidate the prosecution witnesses. It was contended that allowing the  

appellant  to  enjoy  the  privilege  of  bail  and  further  to  let  him stay  in  

Gujarat would have a very debilitating effect on the prosecution case. It  

was further contended that apart from Amitbhai Shah, some of the other  

accused  in  the  case  were  senior  police  officers  with  great  clout  and  

resourcefulness and they were fully capable of subverting a fair trial in  

Gujarat.  

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28. Mr. Ram Jethmalani, senior advocate appearing for Amitbhai Shah  

submitted, with equal force, that the allegations made by the CBI against  

his client were no more than a pack of lies. He submitted that the direction  

of this Court handing over the investigation of the Sohrabuddin case to  

the  CBI  gave  a  handle  to  the  Central  Government  to  wreck  political  

vendetta on the democratically elected Government in Gujarat.  He further  

submitted that the CBI was being used in this case to frame up his client  

in a completely false case. He contended that the Gujarat Police had made  

a proper investigation but the CBI put the charge-sheet submitted by the  

Gujarat  Police  in  this  case  upside-down.   It  forged  and  fabricated  

evidences against Amitbhai Shah and set-up an entirely false case against  

him.  He also submitted that the High Court had rightly granted bail to  

Amitbhai Shah and there was no reason for this Court to cancel it.  

29. At  this  stage,  we  do  not  wish  to  express  any  opinion  on  the  

submissions made from the two sides lest any remark made in the order  

might cause prejudice to either the accused or the prosecution in the trial.  

However,  on  hearing  Mr.  Tankha  for  the  CBI,  Mr.  Ram  Jethmalani,  

senior  advocate  for  Amitbhai  Shah,  Mr.  Huzefa  Ahmadi,  for  the  writ  

petitioner  Rubabbuddin  Sheikh  and  Mr.  Gopal  Subramanium,  learned  

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Amicus Curiae, we are not inclined to cancel the bail granted to Amitbhai  

Shah about two years ago. Had it been an application for grant of bail to  

Amitbhai Shah, it is hard to say what view the Court might have taken but  

the considerations for cancellation of bail granted by the High Court are  

materially different and in this case we feel reluctant to deprive Amitbhai  

Shah of the privilege granted to him by the High Court.

30. However,  the  apprehension  expressed  by the  CBI that  Amitbhai  

Shah may misuse the freedom and try to subvert the prosecution cannot  

be lightly  brushed aside.   We,  accordingly,  direct  that  Amitbhai  Shah  

(respondent No.1 in criminal appeal) 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. We further direct that Amitbhai  

Shah will report to the CBI office every alternate Saturday at 11.00 AM.  

It  is  further made clear  that  the grant of bail  to Amitbhai  Shah in the  

Sohrabuddin case shall have no effect in the Prajapati case and in that  

case whether Amitbhai Shah is to be kept in judicial custody or granted  

bail would be decided by the court on the basis of the materials on record  

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of that case and without taking into consideration the grant of bail to him  

in the Sohrabuddin case.  

31. The grant of bail to Amitbhai Shah in Sohrabuddin case shall be no  

consideration for grant of bail to the other accused in that case and the  

prayer  for  bail  by the other  accused in  the  Sohrabuddin  case  shall  be  

considered on its own merits.  

32. In case Amitbhai Shah commits any breach of the conditions of the  

bail bond or the undertaking given to the court, as directed above, it will   

be open to the CBI to move the trial court for cancellation of his bail. In  

that case, if the allegations pertain to the period posterior to this order, the  

trial  court  shall  examine the matter  carefully  and take an  independent  

decision without being influenced by this order declining to cancel the  

bail granted to him.

33. Coming  now  to  the  question  of  transferring  the  case  outside  

Gujarat, the manner in which the Sohrabuddin case has proceeded before  

this Court in itself,  without anything else,  makes out a strong case for  

transferring the trial of the case outside the State. It is also noted above  

that Mr. Jethmalani made the declaration that his client is prepared to face  

the trial at any place and wherever the trial is held he would expose the  

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falsity of the CBI case. However, the State and a number of other accused  

were strongly opposed to the transfer of the case outside the State for trial.   

On behalf  of CBI, on the other hand, it  was contended that there was  

hardly any hope of any fair trial of the case in that State.

34. At this stage, we may note an episode in the proceedings before the  

magistrate that is cited by the CBI as one of the grounds in support of its  

prayer for the transfer of the case outside the State. On July 26, 2010, one  

of the accused N.K. Amin filed a petition before the ACJM under section  

306 of the Code of Criminal Procedure for grant of pardon and for being  

considered as an approver. In the application he stated that he desired to  

give statement/evidence about the facts within his knowledge concerning  

the offence for which he was being prosecuted and further that he was  

ready and willing to give his statement under section 164(2) [sic (5)] so as  

to become an approver in the case. The magistrate did not pass any order  

on that application but strangely gave its notice to other accused in the  

case.   The  other  accused  took  time  to  file  their  responses  until  the  

magistrate referred the matter to the High Court under section 395 of the  

Code of Criminal Procedure after almost five weeks of the filing of the  

petition.  The reference was eventually dismissed by the High Court as  

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incompetent. In the meanwhile, on August 21, 2010, Smt. Jayshree Amin,  

the wife of N.K. Amin filed a complaint to the CBI alleging threats to her  

husband’s  life  in  Sabarmati  jail.  The  CBI  duly  forwarded  the  letter  

received from Smt. Jayshree Amin to the ACJM but no action was taken  

on that letter.   N.K. Amin finally filed a petition on January 18, 2011  

requesting  the  ACJM  not  to  pass  any  order  on  his  application  under  

section 306(Exh.8) and section 164(5) (Ex.49). In this petition, he made  

the complaint that on his application under section 306 the court did not  

pass any order but delayed the matter by giving the other accused time for  

filing their objection.  As a result there was grave threat to his life in the  

jail. In any event, after he received a copy of the charge-sheet filed by the  

CBI and found that in that charge-sheet three other policemen (namely,  

Ajay  Parmar,  Santaram  Chandrabhan  Sharma  and  Vijay  Arjunbhai  

Rathod) were not arrayed as accused, he had, for the time being, decided  

not to make any statement before the court keeping his options open after  

the case is committed to the court of sessions.  

35. On  behalf  of  the  CBI,  it  is  submitted  that  on  receiving  the  

application from N.K. Amin the learned magistrate adopted a procedure  

unknown to law but that gave sufficient time to the other accused to win  

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back N.K. Amin over to their side by giving him intimidations and/or  

inducements.  

36. In the counter affidavit filed on behalf of the State and N.K. Amin a  

number of accusations are made against the CBI on this issue. It is evident  

that since filing the application for being made an approver in the case, N.  

K. Amin has changed his mind (to which he is fully entitled). But the fact  

of the matter is that both the petitions dated July 26, 2010 and January 18,  

2011 filed by him before the ACJM and the orders passed by the learned  

magistrate on those petitions are part of the judicial record and cannot be  

simply denied away.  

37. Besides the above there are other instances as would appear from  

the proceedings in the Sohrabuddin case when this Court had reasons not  

to feel entirely happy at the way the courts below dealt with the matter.  

38. On  hearing  Mr.  Tankha,  appearing  for  the  CBI,  Mr.  Ahmadi  

representing the writ petitioner, Mr. Tushar Mehta appearing on behalf of  

the State of Gujarat, and the counsel appearing for the different accused  

and Mr. Subramanium, the learned amicus, and on a careful consideration  

of all the material facts and circumstances as also having regard to the  

past experience in the Sohrabuddin matter, we are convinced that in order  

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to preserve the integrity of the trial it is necessary to shift it outside the  

State.  

39. The decision to transfer  the case is  not a reflection on the State  

judiciary  and it  is  made clear  that  this  Court  reposes  full  trust  in  the  

judiciary of the State.  As a matter of fact, the decision to transfer the case  

outside the State is intended to save the trial court in the State from undue  

stress and to avoid any possible misgivings in the minds of the ordinary  

people about the case getting a fair trial in the State.   

40. In  Nahar Singh Yadav and another v.  Union of India and others3,  

this Court on a consideration of the earlier decisions laid down certain  

conditions which may require a case to be transferred outside the State.  

In paragraph 29 of the decision it observed as follows-

“Thus, although no rigid and inflexible rule or test could be  laid down to decide whether or not power under Section 406  CrPC should be exercised, it is manifest from a bare reading  of  sub-sections  (2)  and  (3)  of  the  said  section  and  on  an  analysis of the decisions of this Court that an order of transfer  of trial is not to be passed as a matter of routine or merely  because an interested party has expressed some apprehension  about the proper conduct of a trial.   This power has to be  exercised cautiously and in exceptional  situations,  where it  becomes necessary to do so to provide credibility to the trial.  Some of the broad factors which could be kept in mind while  considering an application for transfer of the trial are:

3 (2011) 1 SCC 307

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(i) 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;

(ii) when there is material  to show that the accused may  influence the prosecution witnesses or cause physical harm to  the complainant;

(iii) comparative inconvenience and hardships likely to be  caused to the accused, the complainant/the prosecution and  the witnesses,  besides the burden to be borne by the State  exchequer in making payment of traveling and other expenses  of the official and non-official witnesses;

(iv) a communally surcharged atmosphere, indicating some  proof of inability of holding fair and impartial trial because of  the accusations made and the nature of the crime committed  by the accused; and  

(v) existence  of  some  material  from  which  it  can  be  inferred  that  some  persons  are  so  hostile  that  they  are  interfering  or  are  likely  to  interfere  either  directly  or  indirectly with the course of justice.”

We find that  the conditions at  serial  numbers (1),  (2),  (3)  and (5) are  

squarely attracted in this case.  

41. In  another  decision  in  Ravindra  Pal  Singh  v.  Santosh  Kumar  

Jaiswal and others4, this Court directed for transfer of the case outside  

State  because  some  of  the  accused  in  a  case  of  fake  encounter  were  

policemen.  The case in hand has far  more stronger reasons for  being  

4 (2011) 4 SCC 746

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transferred outside the State.  We, accordingly, direct for the transfer of  

Special  Case  No.05/2010  pending  in  the  court  of  Additional  Chief  

Metropolitan Magistrate, CBI, Court Room No.2, Mirzapur, Ahmedabad  

titled  CBI versus  D.G. Vanzara & Others to the court of CBI, Bombay.  

The Registrar General of the Gujarat High Court is directed to collect the  

entire record of the case from the court of Additional Chief Metropolitan  

Magistrate, CBI, Room No.2, Mirzapur, Ahmedabad and to transmit it to  

the Registry of the Bombay High Court from where it would be sent to a  

CBI court as may be decided by the Administrative Committee  of the  

High Court.  The Administrative Committee would assign the case to a  

court where the trial may be concluded judiciously, in accordance with  

law, and without any delay. The Administrative Committee would also  

ensure that the trial should be conducted from beginning to end by the  

same officer.  

42. On behalf of the CBI, it was stated that they need six weeks’ further  

time  to  complete  the  investigation.   They  are  directed  to  positively  

complete the investigation within six weeks and submit the final charge-

sheet before the transferee court in Mumbai.  

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43. The Sohrabuddin case stands transferred to Mumbai by this order.  

It  is the case of the CBI that the case of Sohrabuddin and the case of  

Tulsiram  Prajapati  are  closely  connected  and  in  order  to  avoid  any  

miscarriage of justice, both the cases can only be tried before the same  

court. It will,  therefore, be open to the CBI to make an application for  

transfer of the Tulsiram Prajapati case also to the same court where the  

Sohrabuddin case is transferred.  In case, such an application is filed, the  

court will pass appropriate orders, in accordance with law, after hearing  

all concerned.  

44. In  the  result,  the  appeal  is  dismissed  but  the  transfer  petition  is  

allowed.  

…………………………….J. (Aftab Alam)

…………………………….J. (Ranjana Prakash Desai)

New Delhi; September 27, 2012.  

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