20, Jan 2018 | Teesta Setalvad
The Bombay High Court yesterday clubbed two separate legal actions challenging the gag order on press reportage passed by the CBI Court in the Sohrabuddin case on November 29, 2017. The trial in the alleged fake encounter of one Sohrabuddin Sheikh, his wife Kausar Bi and associate Tulsiram Prajapati of Sohrabuddin Sheikh is being conducted in Court of Sessions For Greater Bombay. Much controversy has surrounded this case in recent months, especially concerning the death in allegedly mysterious circumstances of Judge Brijgopal Harkishen Loya hearing the case.
BJP President and former minister of home, Gujarat, Amit Shah was an accused in the case until he was discharged within months of the Modi government coming to power on December 30, 2014. A total of fifteen of the original 38 accused, charge-sheeted by the CBI –including controversial senior cop DG Vanzara and others have been discharged from this case. These let-offs all followed the coming to power of the Modi regime at the centre and the infusion of Gujarat cops into the CBI.
The final hearing in the matter concerning the gag order on the media will be on January 23, 2018. Senior advocate Mihir Desai appeared for the Bombay Union of Journalists (BUJ) and A. Ponda for a group of journalists. The two petitions may be read here.
The BUJ Petition
Petition by Journalists
The BUJ which is a registered society registered under Maharashtra Societies Registration Act, 1860. Petitioner society was formed on April 16, 1947 by members of Journalists with various objects and aims including one amongst them to strive to secure the right to information as a fundamental right and to ensure freedom of expression and safeguarding it against encroachments from any quarters. In its petition, the organization has challenged order November 29, 2017 order in the Sohrabuddin Case (Sessions Case nos. 177 of 2013, 178 of 2013, 577 of 2013 and 312 of 2014). The Order was passed by Additional Sessions Judge, Sessions Court, Mumbai, at Mumbai under section 237 of Code of Criminal Procedure, whereby the Learned Additional Sessions Judge has restrained media personnel from reporting any proceedings of ongoing trial in the session’s case in print media, social media and electronic media. The gag order reads,
….. Considering the sensitivity in the matter, likelihood of happening of any untoward incident and likelihood of effect on the trial of this matter, in case of day to day publication of evidence that may be brought on record, I am of the view not to allow media to may publication of any of the proceedings during the trial in the matter until further order. It may happen that the publication may create security problem for the accused persons, prosecution witnesses, the defense team and the prosecutor as well. I therefore find justification in the request of the defense team of lawyers. The Application is allowed.
Construing the act of the Sessions Court as being a direct incursion on press freedom the BUJ petition argues that:
- The order of the Sessions Court is illegal and bad in law;
- The Additional Judge, Sessions Court failed to appreciate that the application was filed under section 327 of Code Of Criminal Procedure Code which does not deal with restraining media personnel from reporting of day to day proceedings or orders in trial;
- The gag order defeats the purpose of open court trial set out in section 327 of the Code of Criminal Procedure, 1973;
- The Trial Court failed to appreciate that Sessions Court has no powers u/s 327 of Criminal Code Of Procedure to restrain media/press from reporting proceedings of the trial unless it’s a trial u/s 327 (2) of Criminal Procedure Code;
- The Trial Court failed to appreciate that no case was made out for an order in the Application filed by Respondent no. 2.
- The Trial Court failed to appreciate that the case is of utmost public importance which was also acknowledged by the Supreme Court on several occasions;
- The Trial Court failed to appreciate that no case was made out on trial being affected by any media report whatsoever;
- The Trial Court failed to appreciate that no case was made out by the original accused in the case “real and substantial risk of prejudice to the proper administration of justice”;
- The Trial Court failed to appreciate that no case was made out by the original accused of clear and present danger in administration of justice;
- The Trial Court failed to appreciate that no case of exceptional circumstance was made out by the original accused to protect interest of justice on the other hand Supreme Court has observed from time to time high handedness and biased investigation in the session case as the accused persons are none other than those who were meant to protect the citizen including the victims of offense being heard;
- The Trial Court ought to have considered that the order of restraining media, in general, from reporting any proceeding until judgment in the session’s case violates fundamental rights of media protected under articles 14, 19 and 21 of the Constitution of India. The impugned order fails at the test of reasonableness as it does not satisfy the parameters of necessity and proportionality;
- The Learned Trial Court, in any case ought, to have relegated the original accused to High Court for seeking order as no such order could be passed u/s 327 of Criminal Procedure Code;
- In any event impugned order is bad in law, unreasonable, illegal and deserves to be quashed and set aside.
Background of the present case:
The trial concerning the alleged fake encounter in November 2005 of one Sohrabuddin Sheikh who was allegedly travelling on a public bus with his wife, Kauser Bi, from Hyderabad to Sangli, Maharashtra. It is alleged that at midnight, accused herein (Members of Gujarat Police Force) stopped the bus and took them away. Three days later Sheikh was allegedly killed in staged encounter on a highway at Vishala Circle near Ahmedabad. Two days after Sheikh was killed, Kauser Bi was allegedly raped, strangulated and cremated. On December 28, 2006, Tulsiram Prajapati was allegedly killed in fake Encounter by Accused in the sessions case.
Originally law enforcement agencies of Gujarat were investigating the complaints of fake encounter of Sohrabuddin Sheikh, Kausar Bi and Tulsiram Prajapati. On a petition filed by the deceased’s brother Rubabuddin Sheikh, the Supreme Court, by an order dated January 12, 2010, transferred the investigation of the said case to the Central Bureau of Investigation. Pursuant to this, CBI filed the first charge sheet on July 23, 2010.
The CBI has stated in its charge sheet that, that between 2004 to 2006 accused in the sessions case entered into a criminal conspiracy to nab and kill one Sohrabuddin Sheikh, who was an accused in several cases of murder, abductions, extortion, carrying firearms, etc. pending in various courts of State of Gujarat and State of Rajasthan. Sohrabuddin Sheikh was killed, allegedly in a fake encounter in the morning of November 26, 2005. It is further alleged that after about 3 days of killing Sohrabuddin Sheikh, his wife Kausar Bi was also killed by police and her dead body was burnt and disposed of. After about one year there from, on December 27, 2006, Tulsiram Prajapati was also allegedly shot dead by Gujarat and Rajasthan police in a fake encounter. Trial in respect of these offences have been transferred by the Supreme Court by orders dated September 27, 2012 and April 8, 2013 to Learned Additional Sessions Judge, Mumbai i.e. Special Central Bureau of Investigation Judge.
Tragically, as of today out of the original 38 accused in the cases, 15 accused have been discharged and the trial is being conducted against 23 accused.
On November 29, 2017, the original accused in the case (Rehman Abdul) filed an application before the Trial Court seeking an order barring any media (Print, Electronic or Social) from reporting any proceedings of the Sessions Case before the Trial Court till its judgment. The Application said:
“This Hon’ble Court may graciously be pleased to ban the print, electronic and social media from publishing, posting, and/or reporting the proceeding of the present trial till its judgment, as such act will prejudice the case of prosecution, defense. The same may create security problem for accused facing trial, prosecution witness, Ld. Prosecutor as well as Defense Team. The case is having checkered history and mis-reporting has already caused prejudice to both side.
The BUJ has submitted that by impugned Order, the Petitioner and its members and all other press/media throughout, are restrained from reporting “any” proceedings of the sessions case in media.
Further, BUJ has said that that the offence being tried, investigation thereof and trial of the said sessions case in being reported in media (print, electronic and social) worldwide since year 2005 by members of the organisation as well as other reporters.
The petitions pray for a stay in the interim and a quashing of the order of the Sessions Court. Apart from the CBI and the original accused, the Home Department of the government of Maharashtra are respondents in the case. The matter will now be heard on January 22.
*** This story originally appeared in Sabrang India and may be read here
Feature Image courtesy Getty Images