Shamima kausar reply to nk amin application 16.4.2019 (1)

1. 1
IN THE COURT OF HON’BLE SPECIAL JUDGE FOR CBI CASES, COURT NO.2
MIRZAPUR, AHMEDABAD
RC-BS1/2011/0005, CBI, Mumbai
U/S. 120(B) r/2 S. 341,
342, 343, 365, 68, 302 and 201 of
IPC and section 25(1)(e) and 27
of the Indian Arms Act;
Sessions Case No. 02/2013
(Ishrat Jahan Encounter Case)
Dr. Narendra Kantilal Amin .... Applicant (Accused No.5)
Vs.
Central Bureau of Investigation … (Respondent/Complainant)
Special Crime Branch (SCB), Mumbai
Camp: CBI, SIT, Gandhinagar
Reply on behalf of Ms. Shamima Kausar mother of murder victim Ishrat Jahan to
the Application to drop the proceedings filed on behalf of accused
Dr. Narendra K. Amin (Accused No.5)
INDEX
PRELIMINARY LEGAL OBJECTIONS: Page No.
1. Plea by accused for dropping of proceedings is
untenable in law and unsustainable on facts
​3 to 4
(Ground A to D)
2. The Order of the Government refusing sanction is not valid
in the eyes of law, as the same is passed mechanically,
suffers from the vice of malafide and lacks jurisdiction
5 to 6
(Ground E to H)

2. 2
3. Section 197 CrPC has no application in the present
case as abduction, confinement and murder have no
nexus with the discharge of official duty of the Accused
7 to 12
(Ground I)
4. A-5 cannot claim parity with accused who has been
discharged, or against whom proceedings have been
dropped for want of sanction under S.197 CrPC as the
roles of these accused are different
12 to 13
(Ground J to
K)
5. Whether the acts committed by A-5 require sanction for
prosecution under S.197 CrPC can only be determined
through trial
13 to 15
(Ground L to
M)
6. Proceedings cannot be dropped prior to considering
material in the supplementary chargesheet which will
further establish that the offences committed by A-5 do
not fall within the course of official duty:
15
(Ground N)
7. No sanction under S.197 CrPC is required when the
chargesheet contains material which attributes specific
criminal roles to A-5 and prima facie establishes that
A-5 and others committed grave and heinous crimes
that fall outside the scope of official duty
16 to 18
(Ground O
to S)
8. Government Order refusing sanction amounts to an
interference with the administration of justice
21
(Ground T
to U)
PRELIMINARY SUBMISSIONS BASED ON JUDICIAL
RECORDS
9. Abduction, confinement and murder of Ishrat Jahan by
officers of Gujarat Police, falsely projected as an
encounter killing
23
(Ground (a)
to (c))
10. Division Bench of Hon’ble High Court of Gujarat
directed registration of F.I.R for criminal conspiracy to
commit interalia the offence of murder
24 to 25
(Ground (d)
to (i))
11. PARA-WISE REPLY 25 to 28
(S. no. 1 to
8)
12. Typed copy of Gujarat Government Order dated 6.3.2019
bearing No. PQN/25 2018/2251/G declining sanction to
prosecute A-5 N.K.Amin
29 to 32
13. Index of Judgments 33

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Reply on behalf of Ms. Shamima Kausar mother of murder victim Ishrat Jahan to
the Application to drop the proceedings filed on behalf of accused
Dr. Narendra K. Amin (Accused No.5)
It is respectfully submitted:
1. That Ms. Shamima Kausar, the answering Respondent, was impleaded by this
Ld. CBI Court as a Respondent and heard in the present matter at the time of
arguments on discharge.
2. That the Applicant N.K.Amin is named as Accused No.5 (A-5) in FIR No.
RC-BS1/2011/S/0005 dated 16.12.2011.
PRELIMINARY LEGAL OBJECTIONS​:
Plea by accused for dropping of proceedings is untenable in law and
unsustainable on facts
A. That the law of criminal procedure code that governs criminal investigation,
prosecution and trial, does not provide for proceedings to be dropped as is
sought by A-5. Once the application for discharge u/s.227 CrPC has been
rejected, the Code of Criminal Procedure prescribes that the Ld. Trial Court
shall frame charges against the Accused u/s. 228 CrPC.
B. That this Ld. Court has already vide Order Exh. 245&248 dated 7.8.2018
rejected A-5’s application for discharge under Section 227 of the CrPC (Para
44) and has passed a reasoned Order holding that A-5 does not deserve to be
discharged. This Court has no inherent powers and therefore has no power to
Review its own Orders. The Application of A-5 for dropping of proceedings is
not maintainable, and this Ld. Court has no jurisdiction and lacks the authority
of law, to entertain the same. The application filed by A-5 to drop proceedings
in effect seeks a review of this Ld. Courts Order dated 7.8.2018 which is
impermissible in law. A-5 is free to seek appropriate legal remedies to
challenge the order of this Ld. Court.
C. That in view of the overwhelming ocular, documentary, scientific and other
material evidence in the chargesheet which establishes that A-5 committed
crimes interalia of abduction, illegal confinement, murder, destruction of
evidence and use of illegal arms; all of which clearly fall outside of and have
no nexus with the discharge of official duty, this Ld. Court vide Order dated

4. 4
7.8.2018, rejected his application for discharge. This Ld. Court rejected A-5’s
discharge plea after hearing arguments opposing the discharge on behalf of the
CBI and the answering Respondent.
D. That the application under reply is not maintainable and deserves to be
dismissed interalia on the following grounds:
(a) The present application and proceedings to drop proceedings, are alien
to law and the CrPC, particularly after this Ld. Court has by rejecting
the discharge application filed by A-5, held that there exists sufficient
evidence in the chargesheet to frame charges against A-5. This Ld.
Court cannot review its own Order.
(b) The Order of the Government declining sanction 6.3.2019 is invalid,
and hence non est, as it is without merit, having been passed
mechanically and without application of mind. It also amounts to an
interference in the administration in the of justice and hence deserves to
be rejected. The sanction Order is yet another attempt by the State
Government to shield the accused and obstruct the answering
Respondent’s right to justice.
(c) No sanction under S.197 CrPC is required for prosecution in this case,
as it pertains to criminal offences committed by A-5 in conspiracy with
others, which fall outside the scope of their official duty and do not
even have a remote connection with the official duties of a police
officer. The material evidence in the chargesheet shows that there is no
nexus whatsoever, between the abduction, illegal
detention/confinement, subsequent murders of Ishrat Jahan, and the
discharge of official duty by the accused police officers.
(d) Section 197 CrPC does not get automatically invoked in all cases of
crimes committed by public servants. It is required to be established
that the act concerned has some reasonable nexus with discharge of
official duty.
(e) That the Ld. Court cannot drop proceedings on the ground that sanction
has been refused, as it is only during trial, where after recording of
evidence, can it be determined whether the crimes/acts committed by
the accused bear any nexus with their official duty. It is well settled that
sanction for prosecution under Section 197 CrPC can be sought for at
any stage of the trial.

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(f) That it is pertinent that the supplementary chargesheet, filed by the CBI
in February 2014, has still not been placed on record before this Ld.
Court, in a case of criminal conspiracy thereby suppressing material
evidence from this Ld. Court. This Ld. Court cannot drop proceedings,
without considering the supplementary chargesheet, as the same
contains necessary and relevant evidence pertaining to the criminal
conspiracy to abduct, confine and murder Ishrat Jahan and others.
(g) That the government order declining sanction for prosecution must be
read in the context of the conduct of the State of Gujarat, which has
from the beginning made efforts to shield the accused police officers,
by reinstating them and promoting them to senior posts despite
investigation and trial into the murder of 4 persons being pending
against them. The fact that the Order declining sanction qua A-5 is
identical and a xerox copy of the Order declining sanction to
co-accused D.G.Vanzara (A-3), and the two separate documents bear
the exact same file number, conclusively demonstrates the malafide on
the part of the State of Gujarat.
The Order of the Government refusing sanction is not valid in the eyes of law, as
the same is passed mechanically, suffers from the vice of malafide and lacks
jurisdiction:
E. That the Order of the State of Gujarat declining sanction to prosecute
N.K.Amin has been passed mechanically and suffers from the vice of
non-application of mind. The same is evident from the fact that the Order is
identical to the Order declining sanction to prosecute co-accused
D.G.Vanzara (A-3). The two orders, both dated 6.3.2019 were passed by a
high ranking officer, holding the post of the Addl. Chief Secretary, Home
Department, State of Gujarat. That it is very pertinent to note that the two
government orders declining sanction for prosecution of Accused A-3 and
A-5, are identical, word to word, to the extent that they carry the same
document/file number “No. PQN/25 2018/2251/G”. The reasons given in the
Order and evidence and witnesses referred to, purportedly to make a pretence
and give it the appearance of a detailed Order, are also identical, despite the
criminal roles and actions attributed to the two accused being distinct.
It is a matter of record that both the Orders dated 6.3.2019, issued by the State
of Gujarat declining sanction to prosecute A-5 and co-accused D.G.Vanzara,
bear the same file number. The relevant extract is reproduced below:

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RPAD/Confidential
Government of Gujarat
No.PQN/25 2018/2251/G
Home Department
2, Sadar Bhavan, Sachivalaya
Gandhinagar
6th March, 2019
To
The Superintendent of Police,
Central Bureau of Investigation, Spl Crime Branch
A-2 Wing, 8th Floor, CGO Complex
Belapur, BBD, New Mumbai-400623
Sub: Regarding Sanction for Prosecution u/s.197 of CrPC in CBI case
RC-5(S)/2011/MUM (Ishrat Jahan encounter cases)
Ref:
1. CBI, Special Crime Branch, Mumbai Office Letter no. RC-5(S)/2011/MUM
(Ishrat Jahan encounter cases)/5788/18 dated 8/10/2018
2. CBI, Special Crime Branch, Mumbai Office Letter no. RC-5(S)/2011/MUM
(Ishrat Jahan encounter cases) 375/19 dated 15/01/2019
F. That the grounds declining Sanction are prima-facie untenable and baseless.
Simply because the chargesheet has not been filed against all 20 police
officers named in the F.I.R does not reduce or negate the culpability of the 7
officers, including A-5 who have been arraigned as accused in the
chargesheet, and against whom evidence has been marshaled by the
prosecution. It is important to keep in mind that the 7 police officers named in
the chargesheet have all played active and direct roles in the conspiracy to
abduct, illegally confine and murder Ishrat and 4 others.
G. That the government Order declining Sanction has shockingly cast aspersions
on the CBI, the premier investigating agency of the country, on the ground
that it “resorted to procedures contrary to standard procedures of
investigation”.
H. That the order refusing sanction issued by the State of Gujarat is not valid as
the State of Gujarat is not the appropriate sanctioning authority. It is a matter
of record that it is the Union Ministry of Home Affairs and not the State of
Gujarat which is the appropriate sanctioning authority in the present case. The
sanction for prosecution of other accused was decided by the Union Ministry
of Home Affairs. This is reflected in Judgment of this Ld. Court dated
31.3.2017 in Rajeev Wankhede and Tushar Mittal v. CBI (CBI-CrA/04/2017).
There is material on record to show that the criminal conspiracy to unlawfully
abduct, illegally confine and murder the 4 deceased persons and then stage an

7. 7
encounter was carried out in a joint operation by officers of the IB and
Subsidiary Intelligence Bureau (SIB) and officers of the Gujarat police
including A-5. It is the A-5’s own case that the acts committed by him were
carried out on the basis of intelligence inputs received from officers of the
SIB. In February 2014 the CBI filed a supplementary chargesheet against 4
officers of the IB and SIB. The supplementary chargesheet contains evidence
and materials including Call Data Records which show that the abduction,
confinement and murder was a result of a conspiracy between the individual
officers of the Gujarat Police and the SIB. In these circumstances, the
appropriate sanctioning authority is the Ministry of Home Affairs,
Government of India, which has jurisdiction over operations of the SIB and
not the State of Gujarat.
Section 197 CrPC has no application in the present case as abduction,
confinement and murder have no nexus with the discharge of official duty of the
Accused:
I. That the reliance on Section 197 CrPC is misconceived as the provision has no
application in cases where the acts committed by the public servant do not
have any nexus with their official duty. The active role and presence of A-5 at
the site of each of the crimes rules out the possibility that his role is limited to
discharge of official duty. The Hon’ble Supreme Court in ​Devinder Singh v.
State of Punjab 2016 AIR SC 2090, ​while determining whether sanction was
required to prosecute police officers who were alleged to have committed
torture, custodial killings and extra-judicial killings while purportedly
maintaining law and order during the Punjab insurgency in 1980-90’s, ​held
that no sanction was required to prosecute the accused police officers:
“39.1 Protection of sanction is an assurance to an honest and sincere officer
to perform his duty honestly and to the best of his ability to further public
duty. However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public
servant in discharging his duty it must be given liberal and wide construction
so far as its official nature is concerned. Public servant is not entitled to
indulge in criminal activities To that extent Section 197 CrPC has to be
construed narrowly and in a restricted manner.”
and
“40.In the instant cases, the allegations as per the prosecution case is that it
was a ase of fake encounter or death caused by torture whereas the defence of

8. 8
the accused person is that it was a case in discharge of official duty and as the
deceased was involved in the terrorist activities and while maintaining law
and order the incident had taken place. The incident was in the course of
discharge of official duty. Considering the aforesaid principles in case the
version of the prosecution is found to be correct, there is no requirement of
any sanction. However, it would be open to the accused persons to adduce the
evidence in defence and to submit such other materials on record indicating
that the incident has taken place in discharge of their official duties and the
orders passed earlier would not come in the way of the trial court to decide
the question of their official duties and the orders passed earlier would not
come in the way of the trial court to decide the question afresh in the light of
the aforesaid principles from stage to stage or even at the time of conclusion
of the trial at the time of judgment. ​As at this stage it cannot be said which
version is correct, the trial court has prima facie to proceed on the basis of
the prosecution version ​and can re-decide the question afresh in case from
the evidence adduced by the prosecution or by the accused or in any other
manner it comes to the notice of the court that there was a reasonable nexus
of the incident with discharge of official duty, the court shall re-examine the
question of sanction and take decision in accordance with law. The trial to
proceed on the aforesaid basis.” (Para 39 & 40)
This position was reiterated in Devendra Prasad Singh v. State of Bihar
(Crl. Appeal No.579/2019) dated 2nd April 2019.
i. That the CBI too submitted that since the case is not of an “encounter” and in
fact involved the prior abduction and confinement of the 4 deceased, none of
the acts committed by the accused fall within the “course of official duty” and
hence the provisions of S.197 CrPC are not attracted.
In this regard the CBI has on record in writing submitted,
“...it is submitted that the provision of Section 197 CrPC would not be
applicable to the facts and circumstances of the case of the applicant
accused.” (Para 3 (xii))
ii. In ​P.P.Unnikrishnan v. Puttiyottil Alikutty (2000) 8 SCC 131, ​two police
officers called a man who was suspected to have committed theft for questioning,
held him in illegal detention for 4 days and subject to physical torture in order to
extract a confession. The Hon’ble Supreme Court held that the same was not

9. 9
connected to the discharge of official duty of a police officer and that no sanction
was required for their prosecution,
“​If a police officer dealing with law and order duty uses force against unruly
persons, either in his own defence or in defence of others and exceeds such right it
may amount to an offence But such offence might fall within the amplitude of
Section 197 of the Code as well as Section 64 (3) of the KP Act. But if a police
officer assaults a prisoner inside a lock-up he cannot claim such act to be
connected with the discharge of his authority or exercise of his duty unless he
establishes that he did such acts in his defence or in defence of others or any
property. Similarly if a police officer wrongfully confines a person in the lock-up
beyond a period of 24 hours without the sanction of a Magistrate or an order of a
court it would be an offence for which he cannot claim any protection in the
normal course, nor can he claim any protection in the normal course, nor can he
claim that such act was done in exercise of his official duty. A policeman keeping
a person in the lock-up for more than 24 hours without authority is not merely
abusing his duty but his act would be quite outside the contours of his duty or
authority” (Para 21)
In ​Surinderjit Singh Mand v. State of Punjab (2016) 8 SCC 722 , relying on the
aforesaid judgment, the Hon’ble Supreme Court held that no sanction was required
to prosecute 2 police officers who held a man in illegal detention for 4 days prior
to his arrest, since the prior illegal detention does not fall within the discharge of
the official duty of police officers. The Hon’ble Court held,
iii. It is well settled that Section 197 CrPC does not extend its protective cover to
every act or omission done by a public servant in service but restricts its scope to
only those acts or omissions which are done by a public servant in discharge of
official duty. However, in the present case, the very basis for prosecuting the
accused in the present case is that they committed criminal acts which are outside
the scope of their official duty.
In ​Sambhoo Nath Misra v. State of U.P and Ors AIR 1997 SC 2012 the
Hon’ble Supreme Court held that,
“The protection of sanction is an assurance to an honest and sincere officer to
perform his public duty honestly and to the best of his ability. The threat of
prosecution demoralises the honest officer. The requirement of sanction by
competent authority of appropriate Government is an assurance and protection to
the honest officer who does his official duty to further public interest. However,

10. 10
performance of Official duty under colour of public authority cannot be
camouflaged to commit crime. Public duty may provide him an opportunity to
commit crime. The Court to proceed further in the trial or the enquiry, as the case
may be, applies its mind and records finding that the crime and the official duty
are not integrally connected.” (Para 4)
“...It is not the official duty of the public servant to fabricate the false records and
misappropriate the public funds etc. in furtherance of or in discharge of his
official duties. The official capacity only enables him to fabricate the record or
misappropriate the public funds etc. It does not mean that it is integrally
connected or inseparably interlinked with the crime committed in the course of the
same transaction, as was believed by the learned Judge.” (Para 5)
iv. That there must exist a reasonable connection between the act alleged and the
official duty of the public servant in order to warrant sanction for his prosecution
is well settled.
In ​S.K.Zutshi v. Bimal Debnath 2004 8 SCC 31 ​the Hon’ble Supreme Court has
laid down that, “​There must be a reasonable connection between the act and the
discharge of official duty; the act must bear such relation to the duty that the
accused could lay a reasonable, but not a pretended or fanciful claim, that he did
it in the course of the performance of his duty.” (Para 9)
v. That it is relevant to note that the present case is not one where excess force has
been used, or certain criminal acts have been carried out which are inextricably
linked to acts that are required to be committed in discharge of official duty. In the
present case, the evidence as noted in the chargesheet conclusively establishes that
Ishrat Jahan and 3 others were abducted and illegally detained, and there was no
need for use of any force against the 4 persons who could have been arrested,
interrogated and investigated into in accordance with law. Any use of force, and
murder of an unarmed innocent woman held in illegal confinement is antithetical
to a police officer’s duty of maintaining security by upholding the rule of law.
vi. In the present case, the CBI chargesheet on the basis of ocular, scientific, medical
and other material evidence conclusively establishes that A-5 N.K.Amin and other
accused, had apprehended the 4 deceased persons days prior to the killings. The
law in no uncertain terms prescribes, in compliance with the mandate of Article
21, that no person shall be deprived of life or liberty except in accordance with
procedure established by law. The law therefore stipulates the procedure for arrest

11. 11
and investigation in the Code of Criminal Procedure. It is no part of “official duty”
of a police officer, even while apprehending allegedly dreaded criminals or
terrorists, to abduct and keep such a person in illegal confinement. This
constitutional prescription does not allow for any departure or deviance,
irrespective of the profile of the person or the gravity of crime.
vii. It is well settled by a catena of judgments, that the test for what falls within the
scope of “act performed in the course of or in connection with official duty” can
be crystallized around whether non performance of the act would render the public
servant liable to a charge of dereliction of duty.
In this regard, the ​State of Himachal Pradesh v. M.P.Gupta (2004) 2 SCC 349
held,
“Before Section 197 can be invoked, it must be shown that the official concerned
was accused of an offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duties. ​It is not the duty which
requires examination so much as the act, because the official act can be
performed both in the discharge of the official duty as well as in dereliction of it.
The act must fall within the scope and range of the official duties of the public
servant concerned. ​It is the quality of the act which is important and the
protection of this section is available if the act falls within the scope and range
of his official duty. ​There cannot be any universal rule to determine whether there
is a reasonable connection between the act doen and the official duty, nor is it
possible to lay down any such rule. One safe and sure test in this regard would be
to consider if the omission or neglect on the part of the public servant to commit
the act complained of could have made him answerable for a charge of
dereliction of his official duty; if the answer to this question is in the affirmative,
it may be said that such act was committed by the public servant while acting in
the discharge of his official duty and there was every connection with the act
complained of and the official duty of the public servant​…” ​(Para 8)
viii. While an “encounter killing” may result from use of force in self defence in the
course of police action, in the present case the material on record shows that there
was no encounter/confrontation with the deceased; that the encounter site was set
up and a fake encounter staged. As the evidence demonstrates that the deceased
were abducted and confined over a period of days before the staged fake
encounter. The abduction and illegal confinement of the answering Respondent’s
young daughter can in no circumstance fall within the “discharge of official
duties”.

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ix. In the present case, the material on record which shows the prior abduction,
confinement and interrogation of Ishrat Jahan and 3 others, completely negates
and discredits the possibility of the death having been caused in the course of an
“encounter”.
x. There is no reasonable connection between holding a person in illegal confinement
without arrest, subsequently killing them in a staged encounter and a police
officer’s duty. In the present case the offences that the accused officers are
charged with can be clearly separated from their official duty. (​P.K.Pradhan v.
State of Sikkim 2001 (6) SCC 704​). ​In ​Om Prakash v. State of Jharkhand
(2012) 12 SCC 72 it has categorically been held by the Hon’ble Supreme Court
that killing of persons, even if the person is a dreaded criminal can by no stretch of
imagination be held to be a part of the police officers duty. ​“It is not the duty of
the police officers to kill the accused merely because he is a dreaded criminal.
Undoubtedly, the police have to arrest the accused and put them up from trial.”
In the present case, it has been acknowledged by this Ld. Court in the Order
discharging A-2 P.P.Pandey (Exh.111) that there exists evidence to show that the
deceased were held in illegal confinement prior to the encounter. In such a
scenario, it cannot be urged that killing subsequent to having confined a person
falls within the police officers duty or there is any nexus between the two.
xi. That the F.I.R in the present case has been filed under S.120-B IPC read with
S.302 interalia. In ​Harihar Prasad etc v. State of Bihar (1972) 2 SCC 89 it
was held that
“As far as the offence of criminal conspiracy punishable under Section 120-B,
read with Section 409 of the Indian Penal Code is concerned and also Section
5(2) of the Prevention of Corruption Act, are concerned they cannot be said to
be of the nature mentioned in Section 197 of the Code of Criminal Procedure.
To put it shortly, it is no part of the duty of a public servant, while discharging
his official duties, to enter into a criminal conspiracy or to indulge in criminal
misconduct. Want of sanction under Section 197 of the Code of Criminal
Procedure is, therefore, no bar.” (Para 66)
A-5 cannot claim parity with accused who has been discharged, or against
whom proceedings have been dropped for want of sanction under S.197 CrPC
as the roles of these accused are different:

13. 13
J. That A-2 P.P.Pandey has been discharged by this Ld. Court on the ground that
there is no material in the chargesheet to show that he was present at the scene
of the crime. However, evidence and witnesses statements show that A-5 was
present at the sites of abduction, confinement and murders. This Ld. Court in
Order Exh. 245 and 248, rejecting the discharge application filed by A-5, also
held in Para 44 that no parity can be drawn with A-2 since their roles are on a
different footing.
K. That the order summoning Rajeev Wankhede and Tushar Mittal, officers of
the SIB named in the supplementary chargesheet as accused has been stayed
by this Ld. Court on the ground that the Union Ministry of Home Affairs
refused sanction for their prosecution. The case of these two persons is on a
completely different footing from that of A-5 and no parity can be claimed
with respect to them.
Whether the acts committed by A-5 require sanction for prosecution under
S.197 CrPC can only be determined through trial:
L. In ​Chandan Kumar Basu v. State of Bihar (2014) 13 SCC 70 the Hon’ble
Supreme Court relied on ​P.K.Pradhan v. State of Sikkim (2001) 6 SCC 704
wherein it was held,
“In order to come to the conclusion whether the claim of the accused that the
act that he did was in course of the performance of his duty was a reasonable
one and neither pretended nor fanciful, can be examined during the course of
the trial by giving opportunity to the defence to establish it. In such an
eventuality, the question of sanction should be left open to be decided in the
main judgment which may be delivered upon conclusion of the trial. (Para
11.2)
M. That the chargesheet contains overwhelming scientific evidence, including
ballistic evidence, and witness statements to show that A-5 committed crimes
outside the scope of his duty. It was on this basis that this Ld. Court rejected
the application for discharge filed by A-5. As such A-5’s plea that the
aforesaid crimes were committed in connection with discharge of official duty
are fanciful and baseless. No sanction is required to prosecute the offences as
made out in the chargesheet. The requirement of sanction may only arise
during trial, after evidence is recorded, if any part of the evidence brought on
record indicates that the acts may have been committed in discharge of official

14. 14
duty or have any nexus with the same. It is impossible to determine the same
at the stage of charge, even prior to the Prosecution having led its evidence.
As such the dropping of proceedings on grounds of lack of sanction is devoid
of merit.
i. Acknowledging that whether an offence by a public servant has a nexus with
his official duty can only be determined during trial and recording of
evidence, the jurisprudence evolved by the Hon’ble Supreme Court provides
that the necessity for sanction may arise at any stage of the trial. In ​Bakshish
Singh Brar v. Gurmej Kaur and Anr. (AIR 1988 SC 257) , the Petitioner, a
police officer, was charged for allegedly causing grievous injuries to the
complainant and death of one of the alleged offenders during a raid and
search for illicit liquor and unlicenced arms. The case was committed to the
Court of Sessions for Trial. The accused police officer’s contention was that
under S.196 of the Code of Criminal Procedure the cognizance of the offence
could not be taken nor the trial proceeded with without the sanction of the
appropriate authorities under S. 197 Cr.PC. The Sessions Court took the
view that unless cognizance was taken and the facts and the circumstances and
the nature of the allegations involved in the case were gone into, it would not
be possible to determine whether or not the raiding party exceeded its limits or
power while acting in the discharge official duties. The High Court dismissed
the application under S. 482 of the Code of Criminal Procedure for staying
further proceedings in the Sessions Court. The Hon’ble Supreme Court held
that as the issue to be determine was whether while investigating and
performing his duties it was necessary for a police officer to conduct himself
in such a manner which would result in the death of an individual, the trial
should proceed and that if necessary the question of sanction under S.
197 Cr.P.C may be agitated after some evidence have been noted by the
Sessions Court. The Hon’ble Supreme Court upheld the view of the Sessions
Court that there was no need for sanction at the stage of cognizance,
“The learned Additional Sessions Judge, Kapurthala after consideration of
the facts and circumstances of the case in view of the observations of this
court in Pukhraj v. State of Rajasthan held that unless cognizance is taken and
the facts and circumstances and the nature of the allegations involved in this
case are gone into the question whether the raiding party exceeded its limits
or power while acting in the official duties cannot be determined. The learned
judge observed after gathering the materials and some evidence it would be

15. 15
possible to determine whether the petitioner while acting in the discharge of
his duties as a police officer had exceeded the limit of his official capacity in
inflicting grievous injuries on the accused and causing death to the other
accused.​” (Para 4)
Further, in ​Devinder Singh and Ors. v. State of Punjab through CBI
(2016) 12 SCC 87
“37. In Satyavir Singh Rathi v. State, this Court has referred to the decision in B.
Saha case and laid down the question of sanction has to be seen with respect to
the stage and material brought on record up to that stage. Whether allegation of
misappropriation is true or false is not to be gone into at this stage in considering
the question whether sanction for prosecution was or not necessary. The criminal
acts attributed to the accused were taken as alleged.”
“39.8. Question of sanction may arise at any stage of proceedings. On a police or
judicial inquiry or in course of evidence during trial. Whether sanction is
necessary or not may have to be determined from stage to stage and material
brought on record depending upon facts of each case. Question of sanction can be
considered at any stage of the proceedings. Necessity for sanction may reveal
itself in the course of the progress of the case and it would be open to accused to
place material during the course of trial for showing what his duty was. Accused
has the right to lead evidence in support of his case on merits.”
Proceedings cannot be dropped prior to considering material in the
supplementary chargesheet which will further establish that the offences
committed by A-5 do not fall within the course of official duty:
N. That it is submitted that the supplementary chargesheet is not yet before the
present Trial Court, and no application to drop proceedings should be decided
before all material evidence is placed before this Ld. Court. The
supplementary chargesheet will show that the acts were not committed during
the course of discharge of official duty, but that they were committed in
pursuance of a criminal conspiracy, and hence S.197 CrPC is not attracted to
the present prosecution. The supplementary chargesheet contains material that
is relevant and necessary to prove the criminal conspiracy entered into by
members of the Gujarat police force, including A-5 and the officers of the
SIB, who have been named as accused in the supplementary chargesheet. The

16. 16
supplementary chargesheet contains Call Detail Records which show that the
accused officers of the Gujarat police force were in communication with the
accused officers of the S.I.B, on dates and times that are relevant and crucial
to the present criminal conspiracy. This material is extremely relevant and
necessary to the show the role played by A-5 in the abduction, confinement
and criminal conspiracy to murder the daughter of the answering Respondent
and other deceased persons.
No sanction under S.197 CrPC is required when the chargesheet contains
material which attributes specific criminal roles to A-5 and prima facie
establishes that A-5 and others committed grave and heinous crimes that fall
outside the scope of official duty:
O. That the CBI chargesheet dated 3.7.2013, marshals evidence and material that
prima facie establishes a strong suspicion for proceeding against A-5. The
chargesheet clearly enumerates the active and direct involvement of A-5 in the
criminal conspiracy that culminated in the staged extra judicial killings of
Ishrat Jehan. A-5 has consistently concealed and misrepresented the case
against him as disclosed by the CBI.
P. Atleast 5 Prosecution Witnesses have in their statements recorded before a
Judicial Magistrate detailed the role played by A-5 N.K.Amin in the
commission of offences:
Name of witness Role of Accused No. 5 N.K.Amin in the statement of the
witness recorded under Section 164 CrPC
1) Shri Nizamuddin
Burhanmiyan
Saiyed
(ASI, Crime
Branch under
Tarun Barot)
That A-5 N.K.Amin participated in the abduction of Ishrat
and Javed on 12.6.2004, 3 days prior to the extra-judicial
killing.
That A-5 N.K.Amin visited Ishrat and Javed when they
were illegally confined in Khodiyar farm house from
12.6.2004 to 15.6.2004.
That A-5 N.K.Amin was present at the scene of
extra-judicial killing and participated in the extra-judicial
killing of Ishrat and 3 others and also participating in
setting up the site as though a “encounter” had taken place.
2) Shri Avinash
Vishwanathsingh
Thakur
That A-5 N.K.Amin visited Ishrat and Javed while they
were held in illegal confinement in Khodiyar farm house
on 12.6.2004.

17. 17
(Constable,
DCB,
Ahmedabad)
3) Shri I.K.
Chauhan
(Sub-Inspector,
Crime Branch,
Ahmedabad)
That A-5 N.K.Amin was present at the site of the
extra-judicial killing and opened fire on the deceased.
4) Shri Mohan
Nanjibhai Menat
(Gun man of Joint
Commissioner of
Police, P.P.Pandey)
That A-5 N.K.Amin was present at the site of encounter.
He corroborates the other witnesses who have described
A-5’s specific role in staging the encounter to murder
Ishrat Jahan and others.
5) Shri
D.H.Goswami
(ATS, Crime
Branch,
Ahmedabad)
That A-5 N.K.Amin was present at the meeting held on
14.6.2004, when A-3 D.G.Vanzara briefed him and others
about the drafting of a complaint about even before the
“encounter” was carried out.
Q. That the Central Bureau of Investigation has opposed the discharge of
Accused No.5 on the grounds that there is direct and admissible evidence
which reveal the overt and direct role of Accused No.5 in this case.
In this regard the CBI submitted:
“​...it is submitted that there are sufficient evidences on record to establish
abduction of Javed and Ishrat near Vasad Toll Booth by a team of police officers,
keeping them in illegal confinement at Khodiyar Farm House. The applicant
accused has tried to impeach credibility of witnesses S/Sh Nizamuddin and Avnish
Thakur on the basis of his own presumptions, the same should not be considered
at this stage. Apart from these two witnesses, there are other evidences
corroborating abduction and illegal confinement of Javed and Ishrat Jahan.”
(Para 3(v))
“...there are sufficient evidences on record in the form of statements of
eye-witnesses u/s. 161 Cr.P.C before IO as well as u/s. 164 Cr.P.C on oath before
Magistrate. Further, there are evidences in the form of contemporary record i.e
complaint of Sh J.G.Parmar, FIR of CR 82004, etc, to establish participation of
the applicant accused in the fake encounter. As far as the bullets recovered from
the body of the deceased, for which weapon has not been identified, this itself is an
evidence of fake encounter. The same indicates that circumstances and contents of

18. 18
the complaint dated 15.06.2004 of Sh. J.G.Parmar are not correct and are
fabricated.” (Para 3(vii))
R. That there is direct eye-witness evidence in the form of statements of
witnesses which have been recorded under S.164 CrPC before a Judicial
Magistrate, which conclusively establish that not only was A-5 present at the
site of the staged encounter, but also that he played a crucial role in the
conspiracy to abduct and illegally confine the deceased in preparation to stage
the encounter. It is well settled that the evidentiary value of a statement
recorded before a Judicial Magistrate cannot be discarded at this stage, and
setting the accused free on the basis of unfounded allegations cast about the
reliability of the witness statements would amount to a travesty of justice.
S. That the material in the chargesheet prima facie demonstrates that A-5 was
himself present at the site of the staged encounter. Prior to this, he participated
in the illegal abduction of atleast 3 of the deceased persons. Further he visited
Ishrat Jehan and Javed when they were illegally confined in Khodiyar Farms.
The evidence in the chargesheet shows that A-5 played a key role in the
criminal conspiracy. The statements of atleast 5 Prosecution witnesses name
and ascribe these roles to A-5 and corroborate each other.
i. That A-5 participated in the abduction of one of the deceased victims namely
Amjadali and subsequently kept him in illegal confinement in a farm house as
stated in the S.173(8) CrPC Report:
“On 26.5.2004, a team of DCB, Ahmedabad City comprising of accused
N.K.Amin, Tarun Barot, and I.K.Chauhan with the assistance of Shri
M.K.Sinha and Rajeev Wankhede, ACIO’s of SIB Ahmedabad abducted the
deceased Amjadali from Gota Crossing on the outskirts of Ahmedabad.
Investigation revealed that the above team of accused officers after abducting
the deceased Amjadali, confined him in illegal custody of Arham Farm House
from 26.05.2004 to 15.06.2004 early morning….” ​(Para 10, of the
chargesheet)
ii. Further, the chargesheet also states that on 12.6.2004, A-5 participated in the
abduction and illegal confinement of deceased Ishrat Jehan and Javed​:
“​Investigation revealed that on 12.06.2004, accused N.K.Amin and Tarun
Barot with the assistance of M.K.Sinha and Rajeev Wankhede ACIO’s of SIB
Ahmedabad abducted Javed and Ishrat Jahan from Vasad Toll booth, District

19. 19
Anand, Gujarat when they were travelling in the blue Indica car bearing
registration no. MH 02 JA 4786. The above accused police officers and SIB
officers took Javed and Ishrat Jahan to Khodiyar Farm, off SG Highway,
Ahmedabad and kept them in illegal custody....Shri DG Vanzara, Shri PP
Pandey, Shri Rajendra Kumar and ​Dr. NK Amin had met Javed and Ishrat
Jahan during their illegal custody on different days and times. (Para 11)
iii. A-5 present at site of fake encounter killings
“Investigation also revealed that the accused came from different locations to
the scene of crime i.e Kotarpur Water Works at around 04:00 AM on
15.06.2004 from Indira Bridge Circle and Narol, Ahmedabad. On his way to
the scene of crime accused N.K.Amin had dropped K.S.Desai and his driver
Bhalabhai Rupabhai at Noble T Junction behind the scene of crime…”
“The investigation further revealed that as decided in the above meeting dated
14.06.2004 Shri G.L.Singhal alongwith T.A. Barot, Mohanbhai Lalabhai
Kalaswa (gunman of D.G.Vanzara), Anaju Jiman Chaudhary (Commando),
I.K.Chauhan and Nizamuddin reached the Scene of Crime at about 0400 A.M
from Indira Bridge Circle. Simultaneously as per the instructions of Shri
G.L.Singhal to Shri B.A. Patel waiting at Arham Farm, Amjadali was also
brought to the Scene of Crime by the white qualis vehicle. B.A. Patel drove
this vehicle while Motibhai Taljhabhai escorted blind folded Amjadali sitting
in the rear seat of the vehicle. Amjadali was handed over to N.K.Amin who
made him to stand behind the road divider at the rear side of the parked
Indica Car, where after B.A. Patel drove away and Motibhai Taljabhai stood
with I.K.Chauhan Mohan Nanji and Nizamuddin.” (Para 18)
“The investigation revealed that immediately after the arrival of all the four
detainees as above ​N.K.Amin​, Tarun Barot, J.G.Parmar, Mohanbhai
Lalabhai Kalaswa, Anaju Jhiman Chaudhary opened fire on the detainees in
the car and on the road divider from their official weapons resulting into the
death of all four detainees.
iv. Statements of witnesses describe role of A-5 at every stage of the criminal
conspiracy to abduction, illegally detain and murder:
(a) Shri D.H.Goswami in his statement recorded under Section 164 Cr.PC before
the Judicial Magistrate states,

20. 20
“On 14/06/2004 at 11:00 P.M I was taken to Bungalow No.15, Shahi Baug
office by Shri G.L.Singhal by our official vehicle. Dr. N.K.Amin and other P.I
assembled there and Shri Vanzara had briefed all us plan according to draft
complaint which he had shown us previous day…”
(b) Shri Nizamuddin Burhanmiyan Saiyed (PW-88) in his statement recorded
before the Judicial Magistrate, under Sec. 164 Cr.P.C states that ​Ishrat and
Javed were abducted on 12th June 2004 by a group of police officers
including N.K.Amin​. He states on 12th June 2004 at around noon N.K.Amin
and others stopped a blue Indica car and transferred a man and a woman from
the car into a white Maruti 800 used by Shri Mittal, Sinha and Wankhede of
the SIB.
Further, he states that N.K.Amin visited the farm house in which this man
and woman were held in illegal confinement.
Finally the witness states ​that N.K.Amin was present at the scene of the
extra-judicial killing. He stated that N.K.Amin and J G Parmar were present
at the encounter site, while the blue Indica car was already there, when a white
Toyota Qualis came to the site N.K.Amin spoke to the blindfolded man who
was taken out of this vehicle, and subsequently the encounter was staged.
After the staged encounter, this witness was asked by N.K.Amin to check in
the Indica car, when the witness went to check it he found that the two persons
kept in Khodiyar farm house were dead.
The witness also states that after the encounter was staged, N.K.Amin
instructed Shri Mohan Lala to fire on the Gypsy of A-5 and then put the
rifle used for this near the body of one of the deceased who was lying near
the divider.
(c) Shri Avinash Vishwanathsingh Thakur (PW-89) in his statement recorded
under S.164 CrPC before the Judicial Magistrate states that on 12th June 2004,
at about 5:00 to 6:00 P.M N.K.Amin as well as other accused visited Javed
and Ishrat who were kept illegally confined in Khodiyar Farms​.
N.K.Amin went into the bungalow in which they were kept, stayed there for
about half an hour and came out. Further, he states that on the early morning
on 14th June 2004 he and another police officer took three of the deceased
victims 2 boys and 1 girl from Khodiyar farm house and handed them over to
N.K.Amin and J.G.Parmar at Noble Nagar. Thereafter when he was sent to
Airport Kotarpur, he found that these persons had been killed.

21. 21
(d) Shri I.K. Chauhan in his statement under S.164 CrPC before the Judicial
Magistrate states that ​N.K.Amin was present at the site where the staged
encounter was carried out, and that he saw N.K.Amin and Shri Tarun
Barot open fire ​on a man on the divider of the road as well as on the Indica
car.
(e) Shri Mohan Nanjibhai Menat in his statement recorded under S.164 CrPC
before the Judicial Magistrate states that he was present at the site of staged
encounter along with N.K.Amin. He corroborates the other witnesses who
have described N.K.Amin specific role in staging the encounter to murder the
daughter of the answering Respondent and others.
Government Order refusing sanction amounts to an interference with the
administration of justice:
T. That the Order of the State of Gujarat refusing sanction to prosecute
N.K.Amin is prima facie malafide and must be viewed in the context that the
State of Gujarat has from the very beginning made all efforts to shield the
police officers from being held accountable. This was one of the reasons that
the investigation was assigned to the CBI on the directions of a Division
Bench of the Gujarat High Court.
U. That it is alarming, that the State of Gujarat, in complete contravention of the
foundational principles of rule of law and duty of the state, continues to shield
police officers who have unlawfully abducted, confined and cold blooded
murdered a young woman.
(i) The Hon’ble Supreme Court has repeatedly deprecated the practise of
extra-judicial killings.
In Extra-judicial Execution Victim Families Association and Anr v. Union
of India (2013) 2 SCC 493​, the Hon’ble Supreme Court held,
“For this Court, the life of a policeman or a member of the security forces is
no less precious and valuable that any other person. The lives lost in the fight
against terrorism and insurgency are indeed the most grievous loss. But to the
State it is not open to cite the numbers of policemen and security forces
personnel killed to justify custodial death, fake encounter or what this Court
had called “administrative liquidation”. It is simply not permitted by the
Constitution. And in a situation where the Court finds a person’s rights,
specially the right to life under assault by the State or the agencies of the
State, it must step in and stand with the individual and prohibit the State or its

22. 22
agencies from violating the rights guaranteed under the Constitution…”
(Para 10)
In ​Prakash Kadam and Ors v. Ramprasad Vishwanath Gupta and Anr
(2011 6 SCC 189)​, the Hon’ble Supreme Court held,
“We warn policemen that they will not be excused for committing murder in
the name of `encounter' on the pretext that they were carrying out the orders
of their superior officers or politicians, however high. In the Nuremburg trials
the Nazi war criminals took the plea that `orders are orders', nevertheless
they were hanged. If a policeman is given an illegal order by any superior to
do a fake `encounter', it is his duty to refuse to carry out such illegal order,
otherwise he will be charged for murder, and if found guilty sentenced to
death. The `encounter' philosophy is a criminal philosophy, and all policemen
must know this. Trigger happy policemen who think they can kill people in the
name of `encounter' and get away with it should know that the gallows await
them.”​ (Para 28)
(ii) That the State of Gujarat has consistently made efforts to shield the accused
police officers from legal consequences. That on being released on bail in
May 2015, accused N.K.Amin was reinstated into service and retired as
Superintendent of Police, Gujarat in 2016. Further, in 2017 accused N.K.Amin
was promoted to the Indian Police Service by the Union Home Ministry
despite having criminal proceedings of multiple murders pending against him.
(iii) That in April 2016 the State of Gujarat gave A-2 P.P.Pandey who was
released on bail in February 2015 additional charge as DGP and IG, State of
Gujarat despite the trial in such a heinous case pending against him. It was
only pursuant to the filing of a Public Interest Petition titled ​Julio Ribeiro v.
State of Gujarat (SLP (C) No. 33347/2016), and the intervention of the
Supreme Court vide Order dated 3rd April 2017 that A-2 stepped down from
this prestigious and powerful post.
(iv) That the conduct of State of Gujarat, is also evident from the fact that several
other police officers of Gujarat State who have been named as accused and
chargesheeted by the CBI have been reinstated in service in important posts of
the police force of the Gujarat State, even as they face prosecution for the
murder of the daughter of the answering Respondent and three others.
Accused No.3- D.G.Vanzara, former Deputy Inspector General of Police DIG

23. 23
secured bail in February 2015, though retired from police service, he
continues to be extremely influential and enjoys the support of several
powerful figures. Accused No. 4-G.L.Singhal has been reinstated as
Superintendent of Police, State Reserve Police, Gandhinagar under the Armed
Units in May 2014. Accused No.1- J.G.Parmar, Accused No.6- Tarun Barot
and Accused No.7 - Anaju Chaudhary are all on bail. In such a situation, there
is a real and reasonable apprehension that justice will be subverted. It is well
known that justice must not only be done but be seen to be done.
PRELIMINARY SUBMISSIONS BASED ON JUDICIAL RECORDS​:
Abduction, confinement and murder of Ishrat Jahan by officers of Gujarat
Police, falsely projected as an encounter killing:
(a) That the answering Respondent, is the unfortunate mother of deceased Ishrat
Jehan, who along with three persons was killed by the officers and men of the
Gujarat police, in a staged and fake encounter on 15.06.2004. That the murder
of the daughter of the answering Respondent was falsely and with malafide
projected as an encounter killing of a terrorist, and at the behest of the accused
police officials, the Crime Branch Police, Ahmedabad City, lodged C.R. No.
8/2004 dated 15.6.2004 registered with DCB Police Station, Ahmedabad City,
against the deceased persons, interalia for criminal conspiracy and attempt to
murder, and filed a closure report before the competent court.
(b) That the answering Respondent, being convinced of her deceased daughter’s
innocence filed a Writ Petition under Article 226 of the Constitution of India,
bearing Special Criminal Application No.822 of 2004, on 11.08.2004, before
the Hon’ble High Court of Gujarat, at Ahmedabad, praying for the restraint of
the ongoing investigation by the Gujarat Police and seeking an investigation
into the death of her daughter by the Central Bureau of Investigation (CBI) in
order to secure justice.
(c) That it is pertinent to note here, that it was due to the answering Respondent’s
pursuance of justice for her daughter that the truth about this macabre incident
was brought to light through the judicial process. It was due to the judicial
process initiated through Special Criminal Application No. 822/2004, that the
truth of the criminal conspiracy hatched by the Gujarat police officials and
others, that led to the unlawful and extra judicial killing of her daughter and
others, was uncovered. That Mr. Gopinath Pillai, the father of Javed Sheikh,
one of the other deceased, also filed a Special Criminal Application No. 1850

24. 24
of 2009 before the Hon’ble Gujarat High Court seeking an independent and
impartial investigation into the death of his son Javed Sheikh alias Pranesh
Kumar Pillai.
Division Bench of Hon’ble High Court of Gujarat directed registration of F.I.R
for criminal conspiracy to commit interalia the offence of murder
(d) That the Hon’ble High Court of Gujarat, vide Order dated 12.8.2010
constituted a SIT to enquire into the genuineness of the alleged encounter. The
SIT in its final report to the Hon’ble High Court unanimously concluded that
it was not a genuine encounter and that Ishrat Jahan and three others were first
abducted, held in illegal confinement and then murdered in cold blood, by
officers and men of the Gujarat police including A-5 and others.
(e) That a Division bench of the Hon’ble High Court of Gujarat, in Special
Criminal Application No.822/2004 vide its Judgment and Order dated,
1.12.2011, directed the Chairman of the SIT to register a fresh FIR with the
CBI and directed the CBI to investigate the murder of Ishrat Jehan, the
daughter of the present Applicant, and other persons.
(f) That it is relevant to mention that the investigation conducted by IO Parixita
Gujjar in C.R. No. 8/2004 dated 15.6.2004, has been set aside by this
judgment of the Hon’ble High Court. Ms. Parixita Gujjar who was also the
ACP, Mahila P.S, Crime Branch at the time has herself admitted that the
investigation conducted by her was mala fide and the final report was
submitted at the behest of the accused police officers:
Ms. Parixita Gurjar has stated as a witness to the CBI in the present
investigation that,
“I state that I was told by my senior officers Addl. Commissioner of Police
Shri D.G.Vanzara and Joint Commissioner of Police Shri P.P.Pandey that the
incident was a genuine police encounter and that it involved a larger motive
of the Lashkar e Toiba (LeT). Because of such direction and also because I
was subject to the supervision and directions of the same officers, my focus
during the period of investigation was unearthing the larger antinational
terrorist conspiracy. Therefore I had not looked at the narration in the FIR of
CR No.8/2004 with suspicion.”
(g) That in compliance with the Hon’ble High Court of Gujarat Order of
01.12.2011, FIR No. RC-BS1/2011/S/0005 was registered on 16.12.2011,
against Police Officers, including the present accused, N.K.Amin, involved in
the cold blooded murder of the Ishrat Jehan, for commission of offences under

25. 25
Sections 302, 364, 368, 346, 120-B, 201, 203, 204, 217, 218 of the Indian
Penal Code and Sections 25(1)(e), 27 of the Arms Act.
(h) That on 3.07.2013, the CBI filed the chargesheet in the Court of the
Additional Chief Judicial Magistrate Court No.2 (CBI Cases), Mirzapur,
Ahmedabad under Sections 302, 364, 368, 346, 120-B, 201, 203, 204, 217,
218 of the Indian Penal Code and u/s 25(1)(e), and 27 of the Arms Act,
wherein N.K.Amin is arraigned as A-5.
(i) That on 6.2.2014, the CBI filed a supplementary chargesheet against four
officers of the SIB before the competent Court in Ahmedabad which
establishes that the criminal conspiracy to abduct, illegally detain and murder
the daughter of the answering Respondent and others, involved high ranking
officers of the SIB, Ahmedabad, with Gujarat police officials. The same is
registered as CBI Criminal Case No.6/2017.
PARA-WISE REPLY
1. In reply to Para 1 it is submitted that this Ld. Court dismissed the application for
discharge under S.227 (Exh. 248) filed by accused A-5 N.K.Amin and held that
there exists sufficient evidence and material on record to prima facie establish
accused A-5 N.K.Amin’s active and direct involvement in the conspiracy to
unlawfully abduct, illegally confine and stage the encounter of and in cold blood
murder Ishrat Jehan.
2. In reply to Para 2 it is submitted that the proceedings of the Ld. Court are a matter
of record. However, it must be emphasized here that S.197 CrPC has no bearing to
and will not be applicable to the facts and circumstances of this case.
3. In reply to Para 3, 4 & 15 it is submitted that A-5 cannot claim parity with
Accused No.2 P.P.Pandey and such an argument is completely misconceived. In
the Order discharging Accused P.P.Pandey (Exh. 111) this Ld. Court held that the
evidence on record was insufficient to indicate that P.P.Pandey was involved in
the abduction, confinement and staged encounter of Ishrat Jahan and others. In the
Order, this Ld. Court stated,
“​There is no evidence that there was any talk on telephone or mobile by Shri
Pandey with any police officers regarding the encounter of four persons. There is
no evidence that even after the incidence Shri Pandey had met with any police

26. 26
officer regarding this encounter and Shri Pandey had any communication with
any other person or even with any department at any point of time.”
However, in this Ld. Court rejected the discharge application of the A-5 on the
ground that there existed sufficient evidence to show his role and involvement in
the crimes. Thus Order (Exh. 111) is of no help to the A-5. The distinction
between the case of the A-5 and of A-2 is evident from the Orders of this Ld.
Court in the discharge applications filed by the two Accused.
4. In reply to Para 5 it is submitted that the proceedings of this Ld. Court are a matter
of record. It is also a matter of record that the CBI in its reply to the discharge
application filed by the A-5 has consistently taken the stand that the A-5 played a
direct and active role in the conspiracy to abduct, confine and stage the encounter
of the 4 deceased persons and that since these acts fall outside the scope of official
duty, no sanction under S.197 CrPC is required for prosecution of A-5. Ground I,
O to S and L to M and T to U of the Preliminary Legal Submissions may be
referred to in this regard.
5. In reply to Para 6, 10, 11, 12, 13, 15, 17 it is submitted that the provision of S.197
Cr.P.C have no application to the facts of the present case. It is evident that the
Order of the State of Gujarat refusing sanction has been issued in contravention of
the legal position regarding which actions of the actions of a police officer can be
held to have a reasonable nexus with his duty. Ground I to M of the Preliminary
Legal Submissions may be referred to in this regard.
6. In reply to Para 7 and 14, it is submitted that the order refusing sanction issued by
the State of Gujarat is not valid as the Government’s Order has been issued in a
mechanical manner, without application of mind. The State of Gujarat is not the
appropriate sanctioning authority. There is material on record to show that the
conspiracy to unlawfully abduct, illegally confine and murder the 4 deceased
persons and then stage an encounter was carried out in a joint operation by officers
of the Subsidiary Intelligence Bureau (SIB) and officers of the Gujarat police
including the A-5. It is the A-5’s own case that the acts committed by him were
carried out on the basis of information received from officers of the SIB. In
February 2014 the CBI filed a supplementary chargesheet against 4 officers of the
SIB. The supplementary chargesheet contains evidence and materials including
Call Data Records which show that the abduction, confinement and murder was a

27. 27
result of a conspiracy between the individual officers of the Gujarat Police and the
SIB. In these circumstances, the appropriate sanctioning authority is the Ministry
of Home Affairs, Government of India which has jurisdiction over the SIB and not
the State of Gujarat. The State of Gujarat is not be the appropriate authority for
purposes of sanction since it is not the case of the State of Gujarat or of A-5 that
the abduction, confinement and murder were carried out on the instructions of the
State Government. Ground E to H and T to U of the Preliminary Legal
Submissions may be referred to in this regard.
7. In Reply to Para 8 it is submitted that the said para is littered with falsehoods. A-5
has wrongly stated that the supplementary chargesheet was filed prior to the year
2014. The supplementary chargesheet against the 4 IB officers was filed on 6th
February 2014. A-5 has further wrongly stated that the supplementary chargesheet
named 4 officials of the Central I.B, the supplementary chargesheet in fact named
4 officials of posted in Gujarat in the Subsidiary Intelligence Bureau. A-5 has
wrongly submitted that ​“the then Central Government in power before the year
2014 was of the similar view that the Central I.B Officials had discharged their
official duties…”​, whereas in fact the sanction to prosecute the 4 IB and SIB
Officers was refused by the Ministry of Home Affairs in June 2015. It has been
reported that the CBI had resolved the issue of sanction and in its supplementary
chargesheet filed on 6th February 2014 itself states that the Department of
Personnel and Training is of the view that no sanction is required to prosecute the
IB officers.
8. In reply to Para 9 it is submitted that the fact that the supplementary chargesheet is
not before this Ld. Court is reason enough for this Ld. Court to dismiss the
application to drop proceedings against the Applicant. No such application should
be decided before all material evidence is placed before this Ld. Court. The
supplementary chargesheet is likely to contain material that is relevant and
necessary to prove the criminal conspiracy entered into by members of the Gujarat
police force, including A-5 and the officers of the SIB, who have been named as
accused in the supplementary chargesheet. The supplementary chargesheet
contains Call Detail Records which show that the accused officers of the Gujarat
police force were in communication with the accused officers of the S.I.B on dates
and times that are relevant to the present criminal conspiracy. This material is
extremely relevant to the show the role played by A-3 in the abduction,
confinement and criminal conspiracy to murder the deceased. The material is also
relevant to show that the crimes committed by A-5 and others do not fall within

28. 28
the course of official duty. Ground N of the Preliminary Legal Submissions may
be referred to in this regard.
It is therefore prayed that
(a) The present application for dropping of proceedings be dismissed and charges be
framed against accused N.K. Amin, A-5 by this Ld. Court.
SHAMIMA KAUSAR
(RESPONDENT)
THROUGH
VRINDA GROVER
& RATNA APPNENDER
ADVOCATES
Ahmedabad
Date:

29. 29
Typed copy of Gujarat Government Order dated 6.3.2019 bearing No.
PQN/25 2018/2251/G declining sanction to prosecute A-5 N.K.Amin
RPAD/Confidential
Government of Gujarat
No. PQN/25 2018/2251/G
Home Department,
2, Sardar Bhavan, Sachivalaya
Gandhinagar
6​th​
March, 2019
To,
The Superintendent of Police,
Central Bureau of Investigation. Spl. Crime Branch
A-2 Wing, 8​th​
Floor, CGO Complex
Belapur, BBD, New Mumbai – 400623
Sub: Regarding Sanction for prosecution u/Sec 197 of CrPC in CBI case
RC-5(S)/2011/MUM (Ishrat Jahan encounter cases)
Ref: 1. CBI, Special Crime Branch, Mumbai Office Letter no. RC-5(S)/2011/MUM
(Ishrat Jahan encounter cases)/5788/18 dated 08/10/2018
2. CBI, Special Crime Branch, Mumbai Office Letter no. RC-5(S)/2011/MUM
(Ishrat Jahan encounter cases)/375/19 dated 15/01/2019
Sir,
With reference to the subject cited above, and to state that as per your letter with caption
in reference set a proposal no. Re/5(S)/2011/MUM. (Ishrat Jahan Case)/ 5789/18 dated
08.10.2018 seeking sanction for prosecution under section 197 of the Code of Criminal
Procedure against Shri Narendra Kantilal Amin, the then Assistant Commissioner of
Police Crime Branch Ahmedabad City (now retired), for the allegation of his being
involved in a criminal conspiracy, encounter death of four persons, destruction of
evidence etc.
2. WHEREAS, the investigating agency, i.e. CBI had vide their letter dated 08/10/2018
had provided only copy of the charge sheet dated 03.07.2013 along with statements of
witnesses. Hence vide further communication dated 27.12.2018 entire set of documents
as forming part of the court record was sought, for which required records was received
vide letter dated 15.01.2019 from the Investigating Agency i.e. CBI. The records and
report received from CBI have been carefully and thoroughly examined by the Home

30. 30
Department Government of Gujarat, which reveals that Shri N.K.Amin has been charged
for offences punishable under sections 302, 364, 368, 348, 120-B, 201, 203, 204, 217,
218, of Indian Penal Code and 25(1)(e), 27 of Arms Act in the chargesheet filed by CBI
in compliance with the order dated 01.12.2011 passed by the Hon’ble High Court of
Gujarat. The aforesaid investigation was carried out by CBI in pursuance to an FIR filed
by Shri R.R.Verma, Chairman (Special Investigation Team) wherein, it was alleged that
the encounter death of four persons was found to be not genuine;
3. AND WHEREAS, the CBI has now sought sanction against Shri. N.K.Amin u/s. 197
of the Code of Criminal Procedure, 1973 in compliance to the common order passed
below Exh.245 and Exh. 248 dated 07.08.2018 by the Ld. Special Judge CBI, Court no. 2
at Mirzapur, Ahmedabad City;
4. AND WHEREAS, CBI in its letter dated 08.10.2018 has made allegations of criminal
conspiracy, murder, abduction, illegal confinement , destruction of evidence, creation of
false records by public servant, offences related of Arms Act, etc. against Shri N.K.Amin,
the then Assistant Commissioner of Police ;
5. AND WHEREAS, this department has examined the case in view of the fact that the
Hon’ble Supreme Court through a catena of decisions has expressly held that public
servants are to be treated as special class of persons enjoying protection under section
197 of the Code of Criminal Procedure. This is so because the same enables any public
servant to perform his /her duty without any fear and favour. Further, the said protection
against malicious prosecution is to be extended in larger public interest only. Therefore
the material provided by CBI against Shri NK Amin and the records and report submitted
has been analysed from the perspective of aforesaid principles of law;
6. AND WHEREAS, a perusal of the records of the case reveals thus :
(i) The FIR registered by CBI on the complaint of Shri R.R.Verma, IPS vide RC
BS1/S/2011/0005 named twenty police officers as accused, The said FIR was filed after
detailed further investigation conducted by the Special Investigation Team. However, the
perusal of the charge sheet filed by CBI reveals that only seven persons were
charge-sheeted including Shri NK Amin.
(ii) The entire case of the prosecution is based on the statements of the police officers
who were earlier named as accused in the FIR but subsequently not charge sheeted.
Further the records reveal that the first date of arrest in the case being 21 February 2013,
the investigating agency was duty bound to file its chargesheet latest before 20​th
May
2013, i.e. within a period of 90 days so as to ensure that no arrested accused gets default
bail. However, various arrested persons, including one Shri Bharat Kumar A. Patel
(subsequently cited as one of the man witnesses against Shri N.K. Amin as PW-155)
were all released on default bail under section 167 of Code of Criminal Procedure, due to
delay in filing of chargesheet. Further Shri Bharat Kumar A. Patel was not charged
subsequently by the CBI and cited as witness. The records and report do not provide any
plausible explanation for these glaring diversions from standard procedures of
investigation.
(iii) The other prime-witness against Shri NK Amin in the chargesheet, namely Shri IK
Chauhan(PW.92) was also named as accused in the said FIR. The facts narrated by this
witness, as also other police officers and personnel, in the statements recorded by CBI are

31. 31
in complete variance and contradiction to the numerous previous statements given by the
said police officers and personnel, and recorded by various authorities during the course
of previous and / or earlier investigation/inquiry.
(iv) The reconstruction reports including those submitted by CFSL/AIIMS team,
corroborate the version of the first FIR registered vide C.R. No. 1-8/04 at DCB
Ahmedabad City.
(v) Para 5.5 of the FIR vide RC BS1/s/2011/0005 registered at the instance of Chairman,
Special Investigation Team makes a mention of the fact that two out of the four deceased
were Pakistanis and had terror links. The possibility of the 3​rd
male deceased too having
terror links has not been ruled out. With regards to the deceased female, though the FIR
does not directly link her to any terrorist organisation, the fact of her having an idea of
the illegal activities of the third male deceased has not been ruled out. However from the
records as placed by the CBI, it transpires that the deceased Ishrat Jahan was member of
Lashkar-e-toiba wherein Lahore based Ghazwa Times, mouthpiece of Lashkar-e-toiba,
had claimed her as a women activist of Lashkar –e – toiba.
(vi) Neither the FIR filed by the chairman, special investigation team nor the charge-sheet
filed by the CBI attributes any motive against any charge-sheeted accused persons
including Shri NK Amin. Further Shri NK Amin was not present on the scene of the
alleged fake encounter.
(vii) The CBI has alleged that the entire operation conducted by Gujarat police and
Subsidiary Intelligence Bureau (SIB) Ahmedabad. The sanction for prosecution under
section 197 of the Code of Criminal Procedure 1973 has been refused by the Ministry of
Home Affairs, Government of India when the CBI sought sanction for prosecution
against the four Central Investigation Bureau officials chargesheeted in supplementary
chargesheet dated 06.02.2014 ;
7. AND WHEREAS, it has been observed that evidence against Shri NK Amin is mainly
based on the statements of witnesses who have been shown as accused in the FIR. The
Investigating Agency had resorted to procedures which are contrary to the standard
procedures of investigation by allowing the accused persons to be released on default
bail. The official duty of Shri NK Amin required him to act against the imminent terrorist
threat to the State. The deceased persons were acting as part of pre-planned conspiracy to
perpetrate acts of terror in Gujarat. No motive has been attributed to Shri NK Amin for
purported acts or omission alleged in the chargesheet;
8. AND WHEREAS, the Government of Gujarat is satisfied that Shri NK Amin should
be protected against malicious and vexatious prosecution in this case, and the said
protection is made extendable to him in larger public interest;
9. AND WHEREAS the Government of Gujarat having fully examined the records
provided by the Investigating Agency as per rules and procedures, and considering all the
facts and circumstances of the case, is satisfied that no case is made out for grant of
prosecution sanction against Shri NK Amin u/Sec 197 of the Code of Criminal
Procedure. 1973;
10. AND NOW THEREFORE, in exercise of the powers conferred under Section 197 of
the Code of Criminal Procedure, 1973, the Government of Gujarat hereby conveys its

32. 32
decision to decline prosecution sanction against Shri NK Amin, the then Assistant
Commissioner of Police, Ahmedabad City.
Yours Faithfully,
(Sd)
(A.M.Tiwari)
Addl. Chief Secretary
Home Department
06.03.2019

33. 33
S. No. INDEX OF JUDGMENTS Relevant paragraphs
1 Devinder Singh v. State of Punjab 2016 AIR SC 2090 Para 24, 36, 37, 39.1,
39.2, 39.8, 40
2 Devendra Prasad Singh v. State of Bihar (Crl. Appeal
No.579/2019) dated 2nd April 2019
Para 7, 9, 10, 11
3 P.P.Unnikrishnan v. Puttiyottil Alikutty (2000) 8 SCC 131 Para 21, 19, 20
4 Surinderjit Singh Mand v. State of Punjab (2016) 8 SCC 722 Para 18, 21, 22, 23
5 Sambhoo Nath Misra v. State of U.P and Ors AIR 1997 SC
2012
Para 5
6 S.K.Zutshi v. Bimal Debnath 2004 8 SCC 31 Para 9
7 State of Himachal Pradesh v. M.P.Gupta (2004) 2 SCC 349 Para 8
8 P.K.Pradhan v. State of Sikkim 2001 (6) SCC 704 Para 15
9 Harihar Prasad etc v. State of Bihar (1972) 2 SCC 89 Para 66
10 Chandan Kumar Basu v. State of Bihar (2014) 13 SCC 70 Para 11.1, 11.2
11 Bakshish Singh Brar v. Gurmej Kaur and Anr. (AIR 1988
SC 257)
Para 4, 6, 8
12 Extra-judicial Execution Victim Families Association and
Anr v. Union of India (2013) 2 SCC 493
Para 10
13 Prakash Kadam and Ors v. Ramprasad Vishwanath Gupta
and Anr (2011 6 SCC 189)
Para 28