The Bombay High Court on Monday dismissed a plea filed by a witness in the alleged fake encounter case of suspected gangster Sohrabuddin Sheikh, his
wife Kasuar Bi and their aide, challenging the acquittal of 22 people in the case by a special court here.
The witness, Mahendrasinh Zala, had challenged the December 2018 order of the sessions court acquitting 22 accused, 21 of them junior-level policemen from Gujarat and Rajasthan, in the case, which was probed by the Central Bureau of Investigation (CBI).
A bench of Justices Indrajit Mahanty and A M Badar dismissed Zalas plea, saying the same was not maintainable since he was not a victim in the case.
Therefore, he did not have the legal right to appeal, the judges noted.
In his plea, the prosecution witness in the encounter case of Sohrabuddin, his wife and their aide Tulsiram Prajapati, had termed the lower courts verdict as a mockery of justice".
Zala had alleged that some of the accused policemen in the case, including former Gujarat ATS chief D G Vanzara, had tried to extort Rs 15 lakh from him and threatened to "kill" him in "another fake encounter similar to Sohrabuddin's" incase he failed to pay the amount.
He thus, approached the high court arguing that since the now acquitted police officers had also been charged for extortion in the Sohrabuddin case, and that the same officers had tried to extort money from him, he be considered a victim in the matter and his appeal be entertained.
The CBI, through its counsel, Additional Solicitor General Anil Singh, had, however, opposed Zala's plea in the court during its hearing in the past.
The central agency had argued that Zala's plea was not maintainable since Section 372 of the Criminal Procedure Code (CrPC) permitted only the prosecution, the state and the central government, the complainant or the victim in a case to file an appeal.
Since Zala was merely a witness and not a victim, his appeal must not be entertained, Singh had argued.
The high court took note of Singh's arguments and also of the provisions of Section 372 of the CrPC.
The bench noted that Zala did not have any direct connection with the Sohrabuddin encounter case and therefore, could not be considered as a victim in the same matter.
It also noted that the appeals challenging the trial court order filed by Sohrabuddin's brothers Rubabuddin Shaikh and Nayabuddin Shaikh were already pending hearing in the high court.
"It can be concluded that victim means the actual sufferer of offence, receiver of harm caused by the alleged offence, and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him or her a right to prefer appeal under the provision of Section 372," the bench noted.
"In view of the aforesaid, an appeal against an order of acquittal by the appellant, who is not the victim, is not at all maintainable under the provisions of the CrPC," the bench said while dismissing the plea.
Shaikh, a gangster with alleged terror links, and his wife Kausar Bi were killed in a suspected fake encounter by the Gujarat police in November 2005.
Prajapati was killed in another alleged fake encounter by the Gujarat and Rajasthan police in December 2006. Both the cases were clubbed into one.
The CBI had booked 38 people as accused in the case.
Between August 2016 and September 2017, the special court had discharged 15 of these 38 accused persons.
Those discharged included senior police officials of the Gujarat and Rajasthan police, and Bharatiya Janata party president Amit Shah.
Charges were framed against 22 others - 21 of them policemen - who were acquitted of all charges, including murder and criminal conspiracy, by the lower court on December 21, 2018.
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