Arguments of Ram Jethmalani in SC in Amit Shah bail cancellation case on 23.11.2011

Bench of Justice Aftab Alam and Justice Ranjana Desai

Ram Jethmalani appearing on behalf of former Gujarat Home Minister Amit Shah resumed his arguments in Supreme Court.

During his arguments Jethmalani touched various point like background of Sohrabuddin Sheikh, Law on bail, Supreme Court's judgment on bail, Evidence of Patel Brothers, Allegations against Amit Shah in Chargesheet, Fact that Tulsiram Prajapati was not an eyewitness of abduction of Sohrabuddin and Kausar Bi and Evidence of Azam Khan

Background of Sohrabuddin Sheikh

Starting his arguments before the bench Jethmalani, told the apex court that Sohrabuddin was a terrorist and was convicted under TADA. According to Jethmalani Sohrabuddin received arms regularly from Pakistan for local distribution. Sohrabuddin was on bail when he was involved in the popular builder shoot out case and alleged murder of Rauf Lala in udaipur. Jethmalani went on to argue that Gujarat was getting a bad name because of Sohrabuddin killing. According to Jethmalani, Sohrabuddin was made a posterboy during last election ..

Jethmalani also put forward an alibi for Amit shah's contact with Narendra Amin at a time when Sohrabuddin was killed. Shah was in contact wit Amin over a kidnapping case in Gandhinagar.
While judges observed that there appears to be much of a coincidence and there are glaring circumstances that suggest Amit Shah's involvement. The bench also observed that Judges after Sohrabuddin case was given to CID for investigation, a day later Amin was transferred to CID for investigating the case.

Moreover days after police officer Solanki sought permission to interrogate Prajapati, Vanzara was transferred as DIG border range and within two weeks Prajapati was killed.
Law on Bail

Starting his arguments on Law on Bail Jethmalani informed the court that it is a settled law that bail is the rule and jail is the exception. He tried to convince the court that a decision to grant or refuse bail depends on many things like justice, liberty, public safety etc. Referring to the judgments of Justice V R Krishna Iyer, Jethmalani argued  “...the personal liberty of a person is too precious. while deciding the bail application, a judge needs to follow the basic principles of law rather than what he thinks personally. Bail should not be withheld as a matter of punishment to an accused. While conisdering bail a judge needs to see that the evidence before him puts such a dark picture of the accused that if he is given bail, he will flee for the rest of his life rather than spending rest of his life in jail...”

Jethmalani also informed the court that while considering bail, the court needs to consider three factors which are 1st Charge on the accused, 2nd Nature of the evidence against the accused and 3rd Punishments prescribed in law. Accordingly a bail can not be denied for punitive purposes.


While citing the judgments of the Constitution bench 1978/1/SCC/579 , Ram Jethmalani referred to the Golden Rule that GRANT OF BAIL IS A RULE AND JAIL IS AN EXCEPTION

Justice Aftab Alam was quick to react by saying that when he was a lawyer, no judge would listen to this rule. “...there are always some judgments which are difficult to follow...” observed Justice Alam. Ram Jethmalani was quick to answer by saying “...I hope you should not condone this kind of judicial indiscipline...”

At this point of time, Ram Jethmalani referred to few judgments of the Supreme Court on Law on Bail. According to Jethmalani, the restriction under section 437 of the CrPC is not applicable on High Court and the Sessions Courts. “Object of the bail is to secure the attendance of the accused and even British Judges while deciding the cases relied on this rule.Grant of bail is a rule and refusal is a exception as a presumably innocent person must have the liberty to prove his innocence...” argued Jethmalani.

At this point Jethmalani also cited a recent judgment of Dalbir Bhandari and Justice Radhakrishnan which listed out all the per incuriam judgments on the subject. (per incuriam means a decision of the court that is wrongly decided because a judge was misinformed of law. A judgment per incuriam is not binding and has no authority)

Jethmalani also argued that most of the judgments cited by the CBI could not have been cited as they were not applicable to this case.
Evidence of Patel Brothers

Advancing his arguments on the role of Patel brothers Jethmalani accused them of concealing the information from Gujarat Police. Jethmalani alleged that both the Patel brothers knew that it was Sohrabuddin who was behind the firing incident at Popular Builders office and in the FIR they didnt give any clue t hat Sohrabuddin was known to the Patel brothers. They concealed his identity. As a result this case remained undetected because there was no cooperation but there was an attempt to conceal the facts.
Allegations against Amit Shah in Chargesheet

At this point, Jethmalani also mentioned the allegations against Amit Shah made in the chargehseet.One, in the chargesheet there is an absurd allegation that this firing incident was done for extortion. There is no evidence to show any extortion was practiced upon Patel brothers at any time and two, another absurd allegation was there the false shooting was engineered for justifying Sohrabuddin arrest later on.

Role of Kalimuddin

At this point of time Jethmalani informed the court about the circumstances which led Sohrabudding to come out of the hiding. According to Jethmalani Sohrabuddin went underground from 8.12.2004 and he emerged in Rajasthan. Jethmalani also alleged that Sohrabuddin murdered Rauf Lala.  Jethmalani also said that Sohrabuddin was hiding in a village in MP and he did not come out unless he got the services of kalimuddin.

At this point Jethmalani informed the court about who was Kalimuddin. Jethmalani alleged that Kalimuddin was a murderer of a DIG in Andhra Pradesh and was under the protection of the state government.He had good links with IB. Jethmalani also informed the court that Kalimuddin had arranged for two tickets of the bus trying to make a point that in reality Sohrabuddin was not accompanied by Prajapati.

(Here Ram Jethmalani is also trying to convey that Kalimuddin got to know about Sohrabuddin from IB)
Fact that Tulsiram Prajapati was not an eyewitness of abduction of Sohrabuddin and Kausar Bi

(At this point Ram Jethmalani blasted CBI for fabricating evidence. He argued to prove that how the story that Tulsiram Prajapati was an eyewitness to Sohrabuddin abduction is totally false. Jethmalani told the court that the bench will be surprised to know a new fact )

Ram Jethmalani informed the court about the conduct of Sohrabuddin Sheikh during his stay with Kalimuddin. “…What did he do during the time when he stayed with Kalimuddin? During those days, he threatened the marble lobby in Rajasthan and he terrified them so much that the marble lobby agreed to pay 25 crore rupees. And who goes to collect that mony? It was Tulsiram Prajapati who was his long time accomplice. When Sohrabuddin left Hyderabad, Prajapati was no where in Hyderabad. He was sent to Bhilwada to collect the extortion money. These fabricators of evidence don’t realize what they have done to their case…” shouted Jethmalani.

Hearing this fact, Justice Alam expressed surprised that why this fact had not been mentioned earlier? To this, Jethmalani said that he came across this fact just a day before. Justice Alam said that this fact was very important

“…They have been misleading the court all along. Prajapati was not with Sohrabuddin otherwise, Kalimuddin would have arranged for three tickets but he had only got two tickets. There are witnesses in Bhilwada to prove that Prajapati was there. It was there duty to tell the court about this. They have been trying to defeat the judicial duty and commit a fraud on the court…” argued Jethmalani.

Evidence of Azam Khan

(At this point of time, Ram Jethmalani informed the court how the evidence of Azam Khan was created)

Jethmalani informed the court that Prajapati was arrested in Bhilwada and was sent to Udaipur Jail. In that jail another criminal Azam Khan was there. Azam was promised that they will be helped in criminal cases against them if he deposed against Amit Shah.

(Azam Khan had told in his statement that Tulsiram Prajapati had told him that he, Prajapati, felt guilty and thinks that Sohrabuddin died because of him.)

Jethmalani questioned the testimony of Azam Khan saying where did Prajapati told Khan that he was travelling with Sohrabuddin and he was an eye witness to the abduction of Sohrabuddin and Kausar Bi. Jethmalani also brought it to the notice of the court that Prajapati wrote letters to NHRC and the Collector fearing for his life.

“...Even in those letters, Prajapati has mentioned nowhere that he was a witness to the abduction of Sohrabuddin and Kausar Bi. He was asking for protection but nowhere has he mentioned my name. This gentleman never claimed to be an eyewitness and to link him to the encounter is totally wrong. This excludes the possibility of he being an eyewitness...” said Jethmalani.

What Azam Khan says about the encounter? Azam says that Tulsiram Prajapati was feeling guilty. Azam Khan should have a defense witness rather than a witness for the prosecution. Azam Khan says that it was Sohrabuddin who arranged for the shooting at Popular Builders and Sohrabuddin is not the person who is unknown to Patel brothers. Why did they file a false FIR? The real fact is Sohrabuddin wanted to recover some money from Patel Brothers and he only wanted to terrify them rather than killing them.

Azam Khan proves that FIR filed by Patel brothers was false and intended to conceal Sohrabuddin’s reasons for doing so. In fact the Gujarat Police has filed a case under section 179 for filing a false FIR.

Arguments Concluded for the day.