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Analysis as to issue (b):

17) Inasmuch as the present writ petition is having a bearing on the decision of the writ petition filed by Rubabbuddin Sheikh and also the claim of the petitioner, the observations made therein, particularly, strong suspicion about the `third person' accompanied Sohrabuddin, it is but proper to advert factual details, discussion and ultimate conclusion of this Court in Rubabbudin Sheikh's case. Acting on a letter written by Rubabbuddin Sheikh to the Chief Justice of India about the killing of his brother Sohrabuddin Sheikh in a fake encounter and disappearance of his sister-in-law Kausarbi at the hands of the Anti-Terrorist Squad (ATS), Gujarat Police and Rajasthan Special Task Force (RSTF), the Registry of this Court, on 21.01.2007, forwarded the letter to the Director  General of Police, Gujarat for necessary action. It is further seen that after six months, the Director General of Police, Gujarat directed Ms. Geeta Johri, Inspector General of Police (Crime), to inquire about the facts stated in the letter. A case was registered as Enquiry No. 66 of 2006 and from 11.09.2006 to 22.01.2007, four interim reports were submitted by Mr. V.L. Solanki, Police Inspector, working under Ms. Geeta Johri. In Writ Petition No. 6 of 2007, Rubabbuddin Sheikh prayed for direction for investigation by the CBI into the alleged abduction and fake encounter of his brother Sohrabuddin by the Gujarat Police Authorities and also prayed for registration of an offence and investigation by the CBI into the alleged encounter of one Tulsiram Prajapati, a close associate of Sohrabuddin, who was allegedly used to locate and abduct Sohrabuddin and his wife Kasurbi, and was thus a material witness against the police personnel. He also prayed for production of Kausarbi, his sister-in-law. After going through various reports, arguments of the counsel for the writ petitioner and the State of Gujarat as well as Solicitor General for India, who appeared as Amicus Curiae, this Court disposed  of the writ petition by entrusting the investigation to the CBI.

Later, it came to the knowledge of the investigating authorities that he had been hiding in a village of Madhya Pradesh. In the Hamid Lala murder case, Sohrabuddin's co-accused were Tulsiram Prajapati, Sylvester and one Azamkhan. It was further pointed out that one Kalimuddin @ Naimuddin another notorious criminal wanted in many serious cases was residing in the State of Andhra Pradesh along with his sister Saleema Begum. They were acting as informers of the Andhra Pradesh Police and they were under their protection. Saleema Begum was residing in Government Railway Quarters. It was Kalimuddin, who seems to have approached by somebody who  invited Sohrabuddin and his wife Kausarbi from their hide out in Madhya Pradesh to Hyderabad. This happened in the middle of November, 2005. It was further highlighted that on or about 22.11.2005, Sohrabuddin and his wife Kausarbi left by a luxury bus for Sangli in Maharashtra. Two tickets for the bus journey were purchased by one Sri Hari. The bus was pursued by police vehicle, two of them were in Tata Sumo vehicles belonging to the Andhra Pradesh Police. They were driven by two drivers in the employment of police being ordinary policemen. The Andhra Pradesh police officers who sat in these two vehicles have not been identified despite investigation both by the Gujarat Police as well as later by the CBI. Sohrabuddin was done to death in an encounter with the police in the early morning of 26.11.2005. In the eventual charge-sheet filed by the Gujarat Police on 16.07.2007 against 13 persons it was reported that the encounter was a fake one.

It is relevant to point out that the FIR recorded by the Gujarat Police in Sohrabuddin's case claimed it to be an encounter death and it was only on the intervention and issuance of rule nisi by this Court and filing of eight Action Taken Reports, the SIT informed this Court that it was a fake encounter and identified the police officials.

25) Apart from the above vital information, it is useful to refer that even after the transfer of Sohrabuddin's case to the CBI on 12.01.2010, the Gujarat Police did not move till May, 2010. The first arrest in the Tulsiram Prajapti was made in May, 2010. Further, when the CBI laid charge-sheet on 23.07.2010 in Sohrabuddin's case, the State promptly  concluded its investigation and filed charge-sheet in Tulsiram Prajapati's case on 30.07.2010. It was also pointed out that this was done only because after repeated requests the Gujarat Police handed over the copies of notes, diaries in Tulsiram Prajapati's case to the CBI in the month of May, 2010.

32) As stated earlier, it is the specific claim of the State of Gujarat that they have conducted a fair and impartial investigation into the killing of Tulsiram Prajapati, however, analysis of the materials which we have already discussed show several lacuna on the part of the investigation by the State Government. It is relevant to point out that much before the incident dated 28.12.2006 which happened in village Chappri in Banaskantha District of the State of Gujarat in  which Tulsiram Prajapati was allegedly shot in an encounter while he had opened fire on the police party, who was on the look out for him to apprehend him, after he had allegedly escaped from a running train while being taken back to Rajasthan from Gujarat where he was stated to be produced in a court proceeding, Tulsiram Prajapati lodged two complaints in written, one to the Collector, Udaipur and another addressed to the Chairman, NHRC, New Delhi expressing the apprehension that he is likely and going to be killed by Gujarat and Rajasthan police. In fact, on 28.12.2006, Tulsiram Prajapati has been killed in the fake encounter which has now being admitted to be a fake counter after a gap of 3 = years.