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4.2. One Rubabuddin Shaikh, brother of Sohrabuddin, addressed letter in December, 2005 to Hon'ble the Chief Justice of India, Supreme Court of India complaining about killing of his brother in fake encounter and disappearance of sister-in-law ? Kausarbi at the hands of Anti-Terrorist Squad (ATS) and Special Task Force (STF). It was alleged that while his brother and Sister-in-law were travelling in a bus from Hyderabad to Sangli, squad comprising ATS and STF team stopped the bus and picked them in the night of 21-22/11/2005 and four days later i.e. 26.11.2005 Sohrabuddin was killed in fake encounter and there was no trace of his sister-in-law. Said Rubabuddin prayed for registration of offence and investigation in the matter. It appears that taking note of the said letter, Hon'ble Supreme Court forwarded the letter to the DGP, Gujarat for further enquiry and action. Thereafter, enquiry was conducted by CID(Crimes) and statements of various witnesses came to be recorded. During said enquiry, one Tulsiram a close associate of his brother was killed in an encounter at Banaskantha on 28.12.2006. Later on, Rubabuddin Shaikh, brother of Sohrabuddin filed petition before the Hon'ble Supreme Court which was registered as Writ Petition (Criminal) No.6 of 2007 for an appropriate order of registration of offence and investigation by the CBI team into abduction and fake encounter of his brother Sohrabuddin and disappearance of his wife Kausarbi. It was also prayed for an appropriate order to register the offence and investigation by the CBI into the subsequent fake encounter of Tulsiram a close associate of Sohrabuddin. It was the case of Rubabuddin in the said petition that Tulsiram was used by ATS to trace whereabouts of Sohrabuddin and Mr.D.G.Vanzara, who was heading the ATS, Gujarat at the time of killing of Sohrabuddin and disappearance of Ms.Kausarbi was transferred as DIG Border Range, Kutch and Banaskantha District and he also played active role in killing of Tulsiram. One Vipul Agarwal, SP who was working under Mr.Vanzara was used to kill Tulsiram. As per Rubabuddin, one Rajkumar Pandian, SP, ATS also played active role in killing of Sohrabuddin, who was present at the relevant day. Therefore, said Rubabuddin prayed for CBI investigation. Pursuant to the directions issued by the Hon'ble Supreme Court from time to time, Investigating Agency of the State of Gujarat carried investigation. During the course of investigation, Inquiry being Inquiry No.66 of 2006 was instituted by the CID (Crimes), Gujarat State and role of various high ranking superior officers in Police Department i.e. ATS and STF were surfaced in the statements of the witnesses. Considering material which had come on record, DGP ordered further enquiry under Section 173(8) of the Code on 06.03.2007. Accordingly, learned Metropolitan Magistrate was informed. Statement of various witnesses came to be recorded during investigation, preliminary inquiry and further investigation.

5. Prosecution case as narrated in the charge-sheet against the applicants and other co-accused is as under :-

Chargesheet FIR No.5/2005 Date : 26.11.2005 Column No.5.

?SThe facts, in this case are that the Assistant Registrar (PIL Cell), Supreme Court of India, New Delhi had vide his letter No.277/4/SC/PIL/2006 dated 21.01.2006 written a letter to the Director General of Police and Chief Police Officer, Gujarat State Gandhinagar for sending a report after making investigation in the matter of application by Rubabuddin Shaikh. The application of Rubabuddin Shaikh residing at Zarnia, Taluka Nagda, District Ujjain was attached. In the said application, the allegations were made that A.T.S. Gujarat and S.T.F. Rajasthan have killed his brother Sohrabuddin in fake encounter and missing his bhabhi (brother's wife) Kausharbi. The application of Jaibunisha Anveruddin Shaikh residing at Zarnia, alleging aforesaid allegations, was also attached herewith. The Director General of Police and Chief Police Officer, Gujarat State, forwarded along with his order No. G-2/1927/M-A/39-05/1584/06 dated 07/06/2006, to the Additional Director General of Police, C.I.D. Crime & Railways, Gujarat State Gandhinagar for investigation. The said investigation being Preliminary Investigation No. 66/06 was assigned to the Deputy Superintendent of Police C.I.D. Crime, Ahmedabad Zone by its letter No. T.3A/PI/289/06 dated 27/06/06. This investigation was carried out by Deputy Police Inspector Shri V.L.Solanki, Ahmedabad City unit, C.I.D. Crime. On finding truthfulness in the allegation made by the applicant made by the applicant Rubabuddin Shaikh in the application and in the meantime Rubabuddin Shaikh, resident of Zarnia, filed a Writ Petition (Cri.) No. 6/07, on date 22/01/2007 and previously an offence being A.T.S. 5/05 was registered on 26/11/2005 and further a Dy. Police Superintendent Shri M.L. Parmar, A.T.S. Was investigating the matter, 'A' category was given and the abetted summary was granted. The Director General of Police and Chief Police Officer, Gujarat State ordered, vide their letter No. PS/Investigation/13/07 dated 06/03/07. The Additional Director General of Police, C.I.D. Crime and Railways to further investigation under Section 173(8) of Criminal Procedure Code. The Additional Director of Police, C.I.D. Crime assigned further investigation of the said offence to Shri Rajnishkumar Rai, D.I.G.P. C.I.D. Crime. So an investigation was carried out after obtaining permission of the Hon'ble Court and hence the offences under Section 302, 364, 365, 368, 193, 197, 201, 120-B, 409, 471, 34 of Indian Penal Code and Section 25(1)A B, 27 of the Arms Act are committed, that;

18. Mr.Kodekar, learned APP has submitted that presence of accused Nos. 2 is established at every place and every stage right from going to Hyderabad and at the time of chasing luxury bus in which Sohrabuddin was travelling, kidnapping Sohrabuddin and his wife, bringing Sohrabuddin from Hyderabad to Ahmedabad and also at the time of killing Sohrabuddin at Narol Circle. It is further submitted that so far as accused Nos.8 and 9 are concerned, their presence is also established at the time of killing Sohrabuddin in fake encounter and even the fact that they have fired is also narrated in the FIR lodged by Abdul Rahmen. It is also submitted that even in the Station House Diary at Pratapnagar Police Station, Udaipur on 26.11.2005, it is recorded with respect to FIR lodged by Abdul Rahmen firing by the said two accused. It is further submitted that so far as the submissions made on behalf of the learned Advocate on behalf of the respective parties with respect to evidenciary value of the witnesses is concerned, all these are required to be considered at the time of trial and what is required to be considered is prima facie case against the accused, nature and gravity of the offence and likelihood of tampering with the evidence. It is submitted that at this stage, the Court is not required to consider and appreciate evidence in detail and give its findings on all points. It is submitted that at the time of considering grant of bail, the Court is not required to give detail reasoned order, appreciating evidence in detail and only prima facie case is required to be considered. Mr.R.C.Kodekar, learned APP has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Dr.Narendra Amin (supra) and Dinesh M.N.(supra) as well as the decision of the learned Single Judge of this Court in the case of aforesaid officers cancelling bail granted in their favour by the learned trial Court. Mr.Kodekar, has also relied upon the decision of the Hon'ble Supreme Court in the case of Kalyan Chandra Sarkar v/s. Rajesh Ranjam @ Pappu Yadav and Anr. reported in (2004) 7 SCC 528 and in the case of State through C.B.I. V/s. Amarmani Tripati reported in (2005) 8 SCC 21, by submitting that while considering applications for bail Court is required to consider nature of accusations and severity of punishment in case of conviction and the nature of supporting evidence; reasonable apprehension of tampering of the witness or apprehension of threat to the complainant and prima-facie satisfaction of the Court in support of the charge. He has further submitted that looking to and considering the position of the respective applicants, police department in the State of Gujarat and State of Rajasthan and the manner in which earlier bias investigation was carried out right from filing / registering complaint by Abdul Rahmen to divert the attention and investigation from fake encounter and there are all possibilities of tampering with the evidence and witness by the applicants ? accused persons. It is further submitted that even the applications submitted by Rubabuddin brother of Sohrabuddin for further investigation with respect to killing of Kauserbi is pending and therefore, it is requested to dismiss the present applications considering gravity of offence and the manner in which Sohrabuddin was killed in fake encounter and subsequently Kausarbi wife of Sohrabuddin was killed and her dead body was disposed of, it is requested discretion in favour of the applicants may not be exercised and may not be released on bail.

22. That Rubabuddin Shaikh, brother of Sohrabuddin wrote a letter in the month of December, 2005 to Hon'ble Chief Justice of India, Supreme Court of India complaining about killing of his brother in fake encounter and disappearance of sister-in-law ? Kausarbi at the hands of Anti-Terrorist Squad (ATS) and Special Task Force (STF). Taking note of said letter, Hon'ble Supreme Court forwarded the letter to the DGP, Gujarat for further enquiry and action. Thereafter, enquiry was conducted by CID(Crimes) and statements of various witnesses came to be recorded including that of Rubabuddin. It appears that said Rubabuddin came to know pursuant to the preliminary inquiry of CID and interim report about encounter of his brother and disappearance of his Sister-in-law had been sent to the Court. Inquiry was conducted by team headed by Ms.Geeta Johri, IG, CID(Crimes). Said Rubabuddin later on filed petition before the Hon'ble Supreme Court which was registered as Writ Petition (Criminal) No.6 of 2007 submitting that concrete efforts to substantiate inquiry and destroying evidence had started resulting in fake encounter and subsequent fake encounter of Tulsiram a close associate of Sohrabuddin. It was the case of Rubabuddin in the said petition that Tulsiram was used by ATS to trace whereabouts of Sohrabuddin. Said Writ petitioner apprehended safety of his brother, Nayudin one of the witness in the said case and named in the FIR in which Tulsiram was arrested and Hon'ble Supreme Court took cognizance of the matter and considering serious allegations and the accusations and gravity of the charges, issued directions from time to time to the Investigating Agency and directed investigation to be carried out by Special Investigation Team and pursuant to the directions issued by the Hon'ble Supreme Court from time to time, Investigating Agency of the State of Gujarat carried investigation and it was found by the Investigating Agency that death of Sohrabuddin and subsequent death of Kasurbi wife of Sohrabudding was a result of fake encounter carried by the then Officers of the ATS, State of Gujarat and Senior IPS Officers of State of Gujarat and State of Rajasthan. Applicants are all those officers who came to be arrested and who are senior IPS Officers belonging to State of Gujarat, State of Rajasthan and other police officials. During the course of investigation, Inquiry being Inquiry No.66 of 2006 was instituted by the CID (Crimes), Gujarat State and role of various high ranking superior officers in Police Department i.e. ATS and STF were surfaced in the statements of the witnesses. Considering material which had come on record, DGP ordered further inquiry under Section 173(8) of the Code on 06.03.2007. Accordingly, learned Metropolitan Magistrate was informed and some of the accused were arraigned / arrested as accused. All of them came to be arrested, remanded to custody and thereafter, charge-sheet has been filed against all the accused inclusive of the applicants on 16.07.2007. Role played by each of the accused is narrated in the charge-sheet in Colm.No.5 of the charge-sheet. Role attributed to each of the applicants is narrated herein above in para-5, therefore, same is not repeated. Thus having prima-facie found case against all the accused they were chargesheeted for the respective offences committed by them.