Interview with Justice (retd) Abhay Thipsay. By ANUPAMA KATAKAM

Justice Abhay Thipsay, a retired Bombay High Court judge, had ruled on four bail applications, including the one involving former Gujarat Deputy Inspector General D.G. Vanzara, who was an accused in the high-profile Sohrabuddin Sheikh case. Justice Thipsay has followed this case closely and has occasionally commented on the discharge orders and several aspects of the case that he says are “absurd” and “contrary to common sense”.

In the context of the controversies surrounding the judiciary today, Justice Thipsay spoke to Frontline about the irregularities in the Sohrabuddin Sheikh case. Excerpts:

The Sohrabuddin Sheikh encounter trial has become controversial with questions around the death of Judge B.H. Loya, who was hearing the case, and, among other things, witnesses rapidly turning hostile. Could you comment on it?

I think instead of speculating whether Judge Loya died a natural death or whether there was some foul play, we should concentrate on what is obvious. I find that the discharge orders [of 15 accused in the Sohrabuddin Sheikh case] are unreasonable and the High Court should have a relook at them, if necessary going for a suo motu revision, which is possible.

There are improprieties with respect to the contents of some of the discharge orders and the manner in which they were delivered is also suspicious. Whenever a judge passes an order, it is customary, and is required by the rules, that the order should indicate the date on which it was dictated, the date on which it was transcribed, the date on which it was signed by the judge and the date on which it was uploaded to the computer system maintained by the court.

If we understand this procedure, we see irregularities in some discharge orders [in the Sohrabuddin Sheikh case]. An examination of these orders shows that on a given date, a large number of pages were dictated, the matter was transcribed and the same was checked and signed by the judge, and also uploaded to the computer system by 3 p.m. From my experience I can say that dictating so much matter and transcribing, checking and signing it within half a day is physically impossible.

In some orders there is no mention as to when they were dictated and when they were transcribed, which ought to have been there.

The second aspect which is obviously wrong in this case is the transfer of Judge J.T. Utpat, who was originally appointed to hear the case. The Supreme Court had directed that the trial should be held from beginning to end by a single judge, who was to be appointed by the administrative committee of the High Court. Accordingly, Judge Utpat was appointed but he was abruptly transferred even before he could complete his normal tenure of three years.

The question that arises is: what were the compelling reasons for transferring the judge before the completion of his term? Had the Bombay High Court sought permission from the Supreme Court to replace the judge, which ought to have been done since the judge was appointed to hold the trial on the basis of the directions given by the apex court?

The counsel for the State of Maharashtra argued before the Supreme Court [as reported in newspapers] that since the trial had not started and since Judge Utpat was transferred there was no violation of the order of the Supreme Court. This is a specious argument and absolutely fallacious because although the trial would technically commence only after the charges are framed, Judge Utpat was certainly not appointed by the High Court to complete only the pre-trial procedures.

If we accept this argument, it would mean that he was to only give adjournments; and when the trial was to commence, a new judge was to be appointed. That is ridiculous. Here, the word “trial” used by the Supreme Court is to be understood in a general sense. When we say undertrial prisoner or speak of speedy trials, we don’t refer only to the period after the charges are framed. The entire case is referred to as a trial. Therefore, why and under what circumstance Judge Utpat was transferred needs an explanation.

Could you expand on what you describe as irregularities in the Sohrabuddin Sheikh case?

We must concentrate on some obvious aspects of the case and seek explanations. For instance, the absurdity in discharging those who were unable to get bail for five to seven years and who got bail only because of the length of the pre-trial detention; even when bail was granted, nobody said that there was no prima facie case against them. It is a matter of common sense that an accused has to make a stronger case for discharge than for bail.

A bail order is discretionary but “discharge” means putting an end to the proceedings. A termination of the proceedings means there is no case for proceeding at all against him. That is absurd, because if such is the position, bail would be granted just for asking.

When there is no prima facie case, the court will not consider anything else. So, those who did not get bail for a number of years, and whose applications were repeatedly rejected by various fora, were subsequently discharged by saying that there was no prima facie case against them. This is very unusual and cannot be accepted. You believe material in the police papers is unreliable in the case of some accused but you are using the same material to proceed against some other accused. The charges are of abduction, murder, confinement, etc. That means you believe the theory that Sohrabuddin Sheikh was abducted, confined and was murdered. But you believe that only some accused have not done it. What is the basis for this? It is all absurd.

With regard to judge Loya’s death, should the Supreme Court have conceded the demand for a proper inquiry, if only to instil confidence among members of the lower judiciary?

Judge Loya’s death is ultimately a matter of speculation, as it depends on evidence. The Supreme Court did not find any substance in the allegation that his death might not be natural. Therefore, it was of the opinion that it did not require an independent probe.

As an experienced High Court judge how do you look at the Chief Justice function as the master of roster? Does he have the power to pick and transfer part-heard matters from one judge to another? How does a Chief Justice ensure that cases are rationally allocated among judges?

As far as the roster is concerned, of course the Chief Justice assigns the matter, and he is the master of roster in the High Courts too. I don’t know whether he consults some senior judges before he assigns matters to different benches.

I don’t find anything wrong in that system because even in the district court, the Principal District Judge assigns matters to the judges subordinate to him. Somebody has to distribute the business of the court to different benches and there can’t be anyone other than the Chief Justice to do so. I don’t think there should be a collegium for a simple matter like assignments.

As far as the power to pick and transfer part-heard matters from one judge to another is concerned, from a pure legal point of view there will be no bar on the Chief Justice to do that too. However, I don’t think the Chief Justice does that. Periodically, the assignments are changed. Routine transfers are made. For instance, in the Bombay High Court, the roster changes every two or three months. This is a routine change. There is always a provision for either of the parties to move the Chief Justice for transferring the matter back to the original court.

If the roster is changed, parties can go to the Chief Justice and point out that the matter was part-heard and seek orders for it to be retained with the same judge irrespective of the change in assignment. Similarly, the judge is also not precluded from writing to the Chief Justice that he be allowed to retain a particular matter that was part-heard by him. On this matter we must trust the Chief Justice and go by whatever he thinks.

Why would this come up for discussion?

This subject is being discussed after the four senior judges of the Supreme Court held a press conference. The Supreme Court judges are learned and experienced. Apparently they had some grievance and they might have felt that certain important matters should have been assigned to senior judges. Frankly, I don’t find that that always happens, even in the High Courts. There is nothing like a junior and senior in the Supreme Court, not even in the High Courts for that matter. Maybe sometimes the Chief Justice would think a particular bench or a judge is better suited to handle particular types of matters and therefore it will be reflected in the assignment.

http://www.frontline.in/cover-story/on-the-irregularities-in-the-sohrabuddin-case/article10107825.ece