CENTRAL BUREAU OF INVESTIGATIONversusAMITBHAI ANIL CHANDRA SHAH AND ANOTHER

                      [2012] 8 S.C.R. 945


          CENTRAL BUREAU OF INVESTIGATION                            A
                                v.
    AMITBHAI ANIL CHANDRA SHAH AND ANOTHER
          (Criminal Appeal No.1503 of 2012)

                   SEPTEMBER 27, 2012
                                                                     B
 [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

     Code of Criminal Procedure, 1973 - s.406 -
Sohrabuddin Sheikh killing case - Allegation that the killing
was orchestrated by senior officers in the Gujarat police and        C
at the behest of Amitbhai Shah, the then Home Minister in
the State of Gujarat - Criminal proceedings against Amitbhai
Shah - Central Bureau of Investigation (CBI) directed to
investigate the case - Plea of CBI before Supreme Court for
cancellation of the bail earlier granted to Amitbhai Shah by         D
the Gujarat High Court and for transfer of the Sohrabuddin
case for trial outside Gujarat on the ground that Amitbhai Shah
was in a position to greatly jeopardize the efforts of the CBI
to bring home the charges against him - Held: Bail granted
to Amitbhai Shah by the Gujarat High Court not cancelled on          E
ground that it would deprive Amitbhai Shah of the privilege
granted to him by the High Court two years ago - However,
Amitbhai Shah to 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        F
or tamper with the prosecution evidence in any manner -
Amitbhai Shah further directed to report to the CBI office every
alternate Saturday - Further, taking into account the manner
in which the Sohrabuddin case has proceeded before the
Court, and in order to preserve the integrity of the trial, strong   G
case made out for transferring the trial of the case outside the
State - Decision to transfer the case not a reflection on the
State judiciary but intended to save the trial court in the State
from undue stress and to avoid any possible misgivings in

                               945                                   H
    946     SUPREME COURT REPORTS                [2012] 8 S.C.R.


A the minds of the ordinary people about the case getting a fair
    trial in the State - Sohrabuddin case accordingly transferred
    to Mumbai -, Bail - Cancellation of

       Code of Criminal Procedure, 1973 - s.406 - Transfer of
B trial - Some broad factors to be kept in mind while
  considering an application for transfer of trial - Re-stated.

       The instant appeal and the transfer petition were the
  result of the developments following the orders passed
  by the Supreme Court in Writ Petition (Criminal) No.6 of
C 2007 (Rubabbuddin Sheikh v. State of Gujarat & Others)
  seeking direction for investigation of the case
  concerning the killing of Sohrabuddin Sheikh· an
  underworld criminal, allegedly in a staged encounter
  orchestrated by senior officers in the Gujarat police and
D at the behest of Amitbhai Shah (the then Minister of State
  for Home in the State of Gujarat) and the disappearance
  of his wife, Kausarbi by the Central Bureau of
  Investigation (CBI). This Court by order dated January 12,
  2000 passed in the aforesaid writ petition had directed the
E CBI to investigate the Sohrabuddin case.

      The appeal was filed by CBI against the order passed
  by the Gujarat High Court in Criminal Miscellaneous
  No.1224012010 granting bail to Amitbhai Anil Chandra
  Shah in the Sohrabuddin case while in the connected
F transfer petition, a prayer was made to transfer the
  Sohrabuddin case outside the State of Gujarat for trial.

       It was submitted by the CBI that Amitbhai Shah was
  part of the larger conspiracy to kill Sohrabuddin and, later
G on, his wife and finally Tulsiram Prajapati, as he was a
  witness to the abduction of Sohrabuddin and his wife by
  the police party; that taking advantage of his position as
  the Minister, he constantly obstructed proper
  investigation into ·the killings of Sohrabuddin and
H Kausarbi even when the matter came to the notice of this
CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 947
           ANIL CHANDRA SHAH
Court and this Court issued directions for a thorough A
investigation into their killings; that he was in a position
to place his henchmen, top ranking policemen at
positions where they could sub-serve and safeguard his
interests; and that his release on bail and permission to
freely stay in Gujarat would greatly jeopardize the efforts B
of the CBI to bring home the charges against him. It was
further submitted by the CBI 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. c
    The counsel appearing on behalf of Amitbhai Shah
opposed the prayer for cancellation of his bail. Insofar as
the transfer of the case is concerned, he stated that
Amitbhai Shah was prepared to face the trial anywhere
and he would, therefore, accept the transfer of the case      D
without demur. The transfer petition was, however,
opposed by the State and the other accused.
     Dismissing the appeal but allowing the transfer
petition, the Court
                                                              E
     HELD: 1.1. This Court is not inclined to cancel the
bail granted to Amitbhai Shah about two years ago as it
feels reluctant to deprive Amitbhai Shah of the privilege
granted to him by the High Court. [Para 29] [963-F-G]
                                                              F
     1.2. 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. It is accordingly, directed that Amitbhai Shah shall
give an undertaking in writing to the trial court that he G
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. It
is further directed 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 H
    948     SUPREME COURT REPORTS                [2012] 8 S.C.R.


A Sohrabuddin case shall have no effect in the Prajapati
  case [Writ petition (criminal) no.115 of 2007 filed by
  Narmada Bai, the mother of Tulsiram Prajapati] and in that
  case whether Amitbhai Shah is to be kept in judicial
  custody or granted bail would be decided by the court
s on the basis of the materials on record of that case and
  without taking into consideration the grant of bail to him
  in the Sohrabuddin case. [Para 30] [963-G-H; 964-A-C]

       1.3. The grant of bail to Arnitbhai Shah in
C 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. [Para 31] [964-C-D]

       1.4. In case Amitbhai Shah commits any breach of the
D 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
E and take an independent decision without being
  influenced by this order declining to cancel the bail
  granted to him. [Para 32] [964-D-E]

        Rubabbuddin Sheikh v. State of Gujarat & Others (2010)
    2 SCC 200: 2010 (1) SCR 991 - referred to.
F
       2.1. 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. There are instances as would
G 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. In order
  to preserve the integrity of the trial it is necessary to shift
  it outside the State. [Paras 33, 37 and 38] [964-F-G; 966-
H E-G]
 CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 949
            ANIL CHANDRA SHAH

      2,2. The decision to transfer the case is not a             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                B
 misgivings in the minds of the ordinary people about the
 case getting a fair trial in the State. [Para 39] [966-H; 967-
 A-B]

        2.3. In Nahar Singh Yadav case, this Court observed
  that an order of transfer of trial is not to be passed as a     C
  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        D
  trial. Some of the broad factors which could be kept in
  mind while considering an application for transfer of the
  trial are: (1) 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        E
  lacl_<adaisical attitude of the prosecution; (2) when there
  is material to show that the accused may influence the
  prosecution witnesses or cause physical harm to the
  complainant; (3) comparative inconvenience and
  hardships likely to be caused to the accused, the               F
  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; (4) a communally surcharged
  atmosphere, indicating some proof of inability of holding       G
· fair and impartial trial because of the accusations made
  and the nature of the crime committed by the accused;
  and (5) 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       H
    950     SUPREME COURT REPORTS               [2012] 8 S.C.R.


A indirectly with the course of justice." The conditions at
  serial numbers (1 ), (2), (3) and (5) are squarely attracted
  in this case. [Para 40] [967-B-C-H; 968-A-C]

          2.4. In another decision in Ravindra Pal Singh, this
    Court directed for transfer of the case outside State
8    because some of the accused in a case of fake
    encounter were policemen. The case in hand has far
    more stronger reasons for being transferred outside the
    State. Accordingly, this Court directs for the transfer of
    Special Case No.05/2010 pending in the court of
C   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
D   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
E   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. The CBI is
F   directed to positively complete the investigation within six
    weeks and submit the final charge-sheet before the
    transferee court in Mumbai. [Paras 41, 42] [968-C-G; 969-
    A]
      2.5. The Sohrabuddin case thus stands transferred
G 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
H CBI to make an application for transfer of the Tulsiram
CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 951
           ANIL CHANDRA SHAH

Prajapati case also to the same court where the                 A
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. [Para
43] [969-B-C]
                                                                8
    Nahar Singh Yadav and anotl1er v. Union of India and
others (2011) 1 SCC 307: 2010 (13) SCR 851 and Ravindra
Pal Singh v. Santosh Kumar Jaiswal and other (2011) 4 SCC
746: 2011 (3) SCR 970 - relied on.

                     Case Law Reference:                        c
    2010 (1) SCR 991            referred to         Para 3

    2010 (13) SCR 851           relied on           Para 40

    2011 (3) SCR 970            relied on           Para 41     o
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1503 of 2012.

    From the Judgment & Order dated 29.10.2010 of the High
Court of Judicature Gujarat in Criminal Misc. No. 12240 of E
2010.

                            WITH

T.P. (Crl) No. 44 of 2011
                                                                F
    Vivek Tankha, H.P. Raval, Indira Jaising, ASGs., Tushar
Mehta, AAG, Ram Jethmalani, Mahesh Jethmalani, Gopal
Subramanium (AC), Bhagwati Prasad, P.S. Narsimha, M.N,
Krishanmani, Pallav Shishodia, Pradeep Ghosh, Maheen
Pradhan, Rajat Khattry, Vaibhav Srivastava, Ejaz Khan, G
Subramonium Prasad, Harsh Parashar, Sameer Sodhi, S.
Udaya Kumar Sagar, Pranav Diesh, Karan Kalia, Ashish Dixit,
Anindita P., Hemantika Wahi, Jesal, Gaurav Khanna, Anando
Mukherjee, Huzefa Ahmadi, Ejaz Maqbool, Mrigank Prabhakar,
Anas Tanwir, Sonam Anand, B.K. Prasad, Pushpinder Singh, H
    952       SUPREME COURT REPORTS                [2012] 8 S.C.R.


A   Dushyant Kumar, Vasu Sharma, Merusagar Samantaray,
    Shubhashis R. Soren, Babita Yadav, Bhupender Yadav,
    Devang Vyas, Vidhya Dhar Gaur, S.S. Shamshery, V.M.
    Vishnu, R.C. Kohli, Garima Prashad, Mukul Kumar, Sushma
    Suri, E.C. Agrawala, A. Sumathi, Sibo Sankar Mishra, Anish
B   Kumar Gupta, Arivnd Kumar Sharma for the appearing parties.

          The Judgment of the Court was delivered by

          AFTAB ALAM, J. 1. Leave granted.
c         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 (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/
0   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
E   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
F   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.
G
         3. This Court by order dated January 12, 2010' passed in
    the aforesaid writ petition directed the CBI to investigate the
    case relating to the killings of Sohrabuddin and his wife

H   1.   (2010) 2 sec 200
 CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 953
     ANIL CHANDRA SHAH [AFTAB ALAM, J.]

 Kausarbi. The order came to be passed after the proceedings         A
 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-                B
 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             c
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
                                                                     D
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
                                                                     E
of Sohrabuddin who was killed simply because he was a
witness to the abduction of Sohrabuddin and his wife by 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     F
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.
                                                                     G
    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      H
    954       SUPREME COURT REPORTS                   (2012) 8 S.C.R. ·


A 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.

B      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
C encounter had no connection with the killings of Sohrabuddin
  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.

D      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
E 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
F his wife as under:

          "From the charge-sheet, ii also appears that the third
          person was 'sent somewhere'. However, ii appears that
          the literal translation of the charge-sheet in Gujarati would
          mean that he was 'anyhow made to disappear'. From this,
G         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
H         cannot be ruled out, although the police authorities or the
CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 955
    ANIL CHANDRA SHAH [AFTAB ALAM, J.]

    State had made all possible efforls to show that it was not A
    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)
                                                                 B
    "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)      C

    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:                                                        D
    "So far as the call records are concerned, it would be
    evident from the same that they had not been analysed
    properly, parlicularly 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)             E

      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   F
the CBI to investigate the killings of Sohrabuddin and his wife
Kausarbi, giving the following directions:

    "82. Accordingly, in the facts and circumstances even at
    this stage the police authorities of the State are directed G
    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
                                                                 H
    956      SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A         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
B         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."
c                                                 (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
D   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 (Cr/.) No.115 of 2007
E
                84. So far as WP (Crl.) No.115 of 2007 is concerned,
          let this matter be listed after eight weeks before an
          appropriate Bench."

F         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.
G   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
H   Police, another 6 persons were also named as accused, being
CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 957
    ANIL CHANDRA SHAH [AFTAB ALAM, J.]

part of the larger conspiracy. In the charge-sheet submitted by     A
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.
                                                                    B
     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     C
Sohrabuddin and his wife Kausarbi, including the possibility of
a larger conspiracy. The CBI, 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,            D
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      E
case on July 30, 2010, followed by a supplementary charge-
sheet on July 31, 2010, before the Judicial Magistrate, First
Class, Dania, 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        F
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     G
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.

     14. In the meanwhile, Amitbhai Shah was granted bail by        H
    958      SUPREME COURT REPORTS                   (2012] 8 S.C.R.


A 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
B 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
c 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
0
    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
E 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 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
F 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. MG 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
G 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
H
CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 959
    ANIL CHANDRA SHAH [AFTAB ALAM, J.]

of the Sohrabuddin case bearing Special Case No.5 of 2010                   A
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                   B
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 to note that in the first counter affidavit   c
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        D
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             E
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                     F
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                  G
Tulsiram Prajapati was killed in a fake encounter. It was,
however, submitted that the State, CID (Crime) had 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.                           H
     960     SUPREME COURT REPORTS                  [2012] 8 S.C.R.


 A       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 (l fake encounter. But, when it became
   impossible to deny that the story of the encounter was false,
 B 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
 c 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
 D end that though he was too killed in a fake encounter there was
   no connection between his killing and the killings of
   Sohrabuddin and his wife, Kausarbi.

         22. The Prajapati case came up before the Court and it
 E was allowed by judgment and order dated April 8, 2011 2 • 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
 F 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
· G 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.

 H 2. (2011) 5 sec 79.
CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 961
    ANIL CHANDRA SHAH [AFTAB ALAM, J.]

      24. The facts and circumstances noted above, very briefly,    A
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.                                        B

      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         C
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        D
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)       E
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          F
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 position to place his
henchmen, top ranking policemen at positions where they could       G
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
                                                                    H
    962      SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A  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 onder his pressure that
  the top ranking police officers tried to cover up all signs of his
B 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
c 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
  Sohrabuddin showed Amitbhai Shah in regular touch with the
0
  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
E 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.

F      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
G 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
H senior police officers with great clout and resourcefulness and
CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 963
    ANIL CHANDRA SHAH [AFTAB ALAM, J.]
they were fully capable of subverting a fair trial in Gujarat.        A

      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
                                                                      8
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        C
the charge-sheet submitted by the Guiarat 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            D
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 E
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 Amicus Curiae,
we are not inclined to cancel the bail granted to Amitbhai Shah F
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 G
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)        H
    964      SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A 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
B 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 of
c 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 otner accused
  in that case and the prayer for bail by the other accused in the
D 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
E 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.
F       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
G 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
  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,
H
CENTRAi: BUREAU OF INVESTIGATION v. AMITBHAI 965
    ANIL CHANDRA SHAH [AFTAB ALAM, J.]

it was contended that there was hardly any hope of any fair trial     A
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       B
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          C
offence for which he was being prosecuted and further that he
was ready and willing to give his statement under section 1'34(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     D
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 incompetent. In the meanwhile, on August 21,            E
2010, Sm!. 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
Sm!. Jayshree Amin to the ACJM but no action was taken on
that letter. N.K. Amin finally filed a petition on January 18, 2011   F
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.   G
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,          H
    966      SUPREME COURT REPORTS                    [2012) 8 S.C.R.


A   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
B   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 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
C   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 p~titions dated July 26, 2010 and January 18,
D   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
E   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
F   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 care.ful consideration of all the
    material facts and circumstances as also having regard to the
    past experience in the Sohrabuddin matter, we are convinced
G   that in order 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
H   full trust in the judiciary of the State. As a matter of fact, the
CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 967
    ANIL CHANDRA SHAH [AFTAB ALAM, J.]
decision to transfer the case outside the State is intended to          A
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             B
and others 3 , 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     C
      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   D
      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         E
      factors which could be kept in mind while considering an
      application for transfer of the trial are:

     · (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
                                                                        F
       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;                                               G
      (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
3.   (2011) 1 sec 307,                                                  H
    968       SUPREME COURT REPORTS                     [2012] 8 S.C.R.


A         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
B
          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
c         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
D   Kumar Jaiswal and others'', 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 transferred outside the State.
    We, accordingly, direct for the transfer of Special Case No.OS/
E   2010 pending in the court of Additional Chief Metropolitan
    Magistrate, CBI, Court Room No.2, Mirzapur, Ahmedabad titled
    CBI versus O.G. Vanzara & Others4 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
F   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
G   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.

H 4.   (2011) 4 sec 746.
CENTRAL BUREAU OF INVESTIGATION v. AMITBHAI 969
    ANIL CHANDRA SHAH [AFTAB ALAM, J.]

     42. On behalf of the CBI, it was stated that they need six     A
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.
                                                                    B
     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,         C
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.
                                                                    D
      44. In the result, the appeal is dismissed but the transfer
petition is allowed.

B.B.B.           Appeal dismissed Transfer Petition allowed.