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IN THE COURT OF SPECIAL JUDGE, CBI, SESSIONS COURT

AT MUMBAI

CRIMINAL APPLICATION NO. _____________ OF 2015

IN THE MATTER OF PROVISION OF 227

OF CRIMINAL PROCECURE CODE IN

CONNECTION WITH FIR BEARING NO.

(RC-3(S)/2011 DATED 29.4.2011

REGISTERED WITH AMBAJI POLICE

STATION DATED 28.12.2006.

Kiransinh Halaji Chauhan )

Aged about 50 years, )

The then Police Head Constable, )

SOG, Palanpur, Gujarat )

Resi.at: Village Mandana (Dangiya), )

Tal. Palanpur, Dist. Banaskantha, Gujarat, )

At present under-trial Prisoner in )

Palanpur jail , Gujrath ).....Applicant

(Ori. Accused No.30)

Versus

Central Bureau of Investigation, Mumbai )

Through Chief Investigating officer )

Having his Camp Office at )

Central Bureau of Investigation, SCB )

Mumbai ).Respondent

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The Humble Application of

the Applicant above named.

MOST RESPECTFULLY SHEWETH THAT:-

1. Applicant is original accused Nos. 34. The Applicant

Kiransinh Halaji Chauhan is then Police Constable, SOG, Palanpur

Gujarath and was in Judicial Custody since May 2010 to 2014

pursuant to their arrest by Gujarat Police (CID/ Crime). The said

FIR was registered by Gujarat Police and the Applicant was arrested

as above in the alleged offence of an alleged fake encounter of a

harden criminal Tulsiram Prajapati.

3. The brief facts leading to filing of this Criminal Application

are stated as under :

(A) It is alleged that on 26.11.2005 an offence was registered by

ATS being first CR No. 05/05 by PI Mr. Abdul Rehman State

of Rajasthan. The said CR No. 05/05 was registered as they

had received secrete information from State of Rajasthan and

Gujarat that one Soharabuddin Shaikh was to reach Gujarat

on 26.11.2005 with an intention to spread terror and target big

leaders of State of Gujarat. Accordingly a trap was lead by the

team of Gujarat and Rajasthan Police to nab Soharabuddin

Shaikh. It is further stated by the Complainant that

Soharabuddin Shaikh came on motorcycle and a warning was

given to surrender. However, Soharabuddin Shaikh opened

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fire on police and in cross firing and in self defense

Soharabuddin Shaikh sustained injury and died.

(B) Applicants state that on 14.1.2006 one Mr. Rubabuddin

brother of Soharabuddin Shaikh addressed a letter to the

Honble Supreme Court alleging that the entire episode of his

brother is a fake encounter and in fact Soharabuddin Shaikh

alongwith his wife Kausarbi were abducted from Hyderabad

and were kept in unlawful confinement before killing them.

The Honble Supreme Court forwarded the said letter to DGP

Gujarat for investigation. It is further alleged that as Tulsiram

Prajapati was the third persons traveling with Soharabuddin

Shaikh and Kausarbi, after abduction they were brought to

Valsad in Gujarat State. Thereafter the said Tulsiram Prajapati

was allowed to return to Bilwara in Rajasthan by a police

party and subsequently Soharabuddin and Kausarbi were

encountered and allegedly shown as if they were Lashkar-E-

Toyba terrorist. It is further alleged that as Tulsiram Prajapati

was a significant material eyewitnesses to the abduction of

Soharabuddin Shaikh and Kausarbi by the Gujarat Police, Mr.

M.N. Dinesh the then S.P. Udaipur who had also participated

in the murder of Soharabuddin Shaikh and Kausarbi ensured

by directing Rajasthan Police to detain Tulsiram Prajapati on

the very same day i.e. on 26.11.2005 for achieving common

object of keeping Tulsiram Prajapati under their control. It is

further alleged that accordingly on 26.11.2005 Tulsiram

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Prajapati was picked up at Bilwara on direction of Mr. M.N.

Dinesh and was brought to Udaipur on the evening on the

same day. However, he was allegedly shown to be arrested 3

days later on 29.11.2005, in the Hamid Lala murder case and

was remanded to Judicial Custody.

(C) It is further alleged that since Tulsiram Prajapati was only

material eyewitness to the aforesaid abduction and encounter,

therefore, on 24.12.2006 the then SP M.N. Dinesh Udaipur

directed the Sub Inspector Udaipur not to depute any escort

for Tulsiram Prajapati because he was deputing special party

for escorting. Accordingly on 25.12.2006 Accused M.N.

Dinesh after succeeding in isolating and segregating Tulsiram

Prajapati away from his helpers and sent him under the

Accused Narayan Singh and other co-accused police officers

to Ahmedabad for producing him in C.R. No. 1124/2004

(popular builder firing case). It is further alleged that on

25.12.2006 the Accused Narayan Singh upon instruction of

Accused M.N. Dinesh informed Sub Inspector that one other

accused Mohd. Azam would not be going to Ahmedabad as

he was taken on police remand in some other case and

therefore, they were to escort Tulsi Prajapati alone only. It is

further alleged that on the other hand on the same day i.e. on

25.12.2006, the Accused D.G. Vanzara in order to engage the

Accused Pandya directed Police Sub Inspector Jadeja and

Police Constable Meghjibhai to go to village Megh Park and

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informed the Accused Pandyas family member to contact him

immediately as the Mr. Pandya was on leave. Thereafter on

26.12.2006, the Tulsiram Prajapati was produced before the

Court in Ahemadabad Gujarat and on the same day in the late

evening boarded the train for Udaipur alongwith

Narayansingh and other police officer i.e. the Applicants. It is

alleged that on 27.12.2006 at around 3 a.m. Tulsiram Prajapati

sought permission to go to toilet. At that time, two unknown

persons threw chilly powder in police officers eyes and fled

away with Prajapati. It is alleged that the said aforesaid story

was a self staged incident and accordingly accused

Narayansingh and 3 others Police Constables left

Himmatnagar after registering the occurrence of their self

stage incident. Thereafter the Accused upon instructions

travelled to Police Chowki at Palampur Circle where special

operation group was present alongwith two police vehicles

and one TATA sumo. Thereafter the Accused Narayansingh

with his other police officers accompanied special operation

group consisting of application from Palapur towards Ambaji

on 27.12.2006 night. It is further alleged that on 28.12.2006 at

around 4 to 5 a.m. in the morning in furtherance of criminal

conspiracy, Tulsiram Prajapati who was secretly and

wrongfully confined was brought to the scene of crime in a

handcuffed position in white colour Maruti car. After that

Mr.Tulsi Prajapati was made to alight from the said car,

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accused Ashish Pandya allegedly murdered him in cold-

blooded manner by firing twice at him from his service

revolver and then allegedly took a country made revolver in

his right hand and fired a shot on the upper arm of his left

hand and then planted the said revolver near the body of

Tulsiram Prajapati. Thereafter the Ashish Pandya instructed

two constables to remain at the scene of crime and took

remaining Accused, Police Party alongwith the body of Tulsi

Prajapati to Hosptial. Pursuant to aforesaid incident Accused

Ashish Pandya gave false and incorrect information about the

incident relating to murder of Tulsiram Prajapati. On the

basis of false information an FIR came to be registered at

Ambaji Police Station Banaskantha against Tulsiram Prajapati

for firing at police and for getting himself killed in retaliation.

(D) Applicant states that thereafter on 1.2.2007 ATS Gujarat in Cr

No. 05/2005 filed a summary report before the Magistrate and

the said report is accepted. However, on 6.3.2007 DGP of

Gujarat State passed an order directing further investigation

and therefore the investigation in CR No. 05/05 earlier

registered with ATS Gujarat was handed over to CID (Crime)

Gujarat. Thereafter on 22.3.2007 an order was passed by DGP

Gujarat directing the investigation of CR No. 115/2006 (

Prajapati encounter case ) to be handed over to CID (Crime )

Gujarat and which was accordingly transferred. It is further

alleged that on 16.7.2007 CID (Crime ) Gujarat in CR No.

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05/2005 (Soharabuddin Case) filed a chargesheet before

Metropolitan Magistrate Ahmedabad against 13 arrested

police officers of Guajarat and Rajasthan and 7 unidentified

police officers from Andra Pradesh for offences punishable

under sections 302, 364, 365, 368, 193 M, 197, 201, 120B, 409,

471, r/w. 34 of IPC alongwith 251 ABA and 27 of Arms Act.

The said case was registered as Sessions Case No. 256/2013.

(E) Applicant further states that Mr. Rubabuddin brother of

Soharabuddin thereafter following the aforesaid events filed a

Writ Petition before Honble Supreme Court challenging the

aforesaid chargesheet dated 16.7.2007 filed by CID Crime

Gujarat in C.R. No. 05/2005 (Soharabuddin case). Similarly

Writ Petition No. 115/2007 was also filed by mother of

Tulsiram Prajapati before Supreme Court for transferring the

investigation to CBI and for registration of an offence.

Thereafter directly on 12.1.2010 the Honble Supreme Court

passed an order in Writ Petition no. 06/2007 preferred by Mr.

Rubabuddin by examining the material on records and

chargesheet dated 16.7.2007 filed by CID Crime and directed

CBI to take over the investigation. Accordingly on 1.2.2010

CBI registered a complaint against officers of ATS Gujarat and

Rajasthan (RC 4 B(s) 2010 ). Thereafter somewhere on

30.4.2010 the Investigation Officer of CID (Crime ) in CR No.

115/2006 (Prajapati Case ) filed a report before JMFC Danta

Court stating that Prajapati case is a fake encounter case. He

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further applied for permission to arrest all the police officers

including the M.N. Dinesh. The Ld. Court thereafter issued

notice to the Complaint of CR No. 115/2006 ( Prajapati case)

i.e. to Applicants. However, even when the Ld. Court had not

given any permission to arrest the Investigating Officer of CID

(Crime ) Gujarat started arresting police officers and

accordingly Applicants came to be arrested in Prajapati case

by CID (Crime ) Gujarat in the month of May 2010 and not by

CBI.

(F) Applicant states that applicant was arrested for an offence of

fake encounter of Tulsiram Prajapati. The CID (Crime)

Gujarat after investigation submitted its chargesheet on

30.7.2010 against the applicant and 4 Rajasthan Police Officers.

Thereafter, on the very next day i.e. on 31.7.2010 2nd

chargesheet came to be filed by of CID (Crime) Gujarat

against Accused Mr. Vanjara and Mr. M.N. Dinesh and

thereafter supplementary chargesheet also came to be filed

against 4 Rajasthan officers somewhere in December 2010.

(G) Applicant further states that the Honble Supreme Court of

India in Writ Petition No. 115/2007 preferred by mother of

Tulsiram Prajapati passed an order dated 8.4.2011 directing

the CBI to investigate the offence. The Honble Supreme

Court did not accept the chargesheet filed by CID (Crime )

Gujarat against Applicant and transferred investigation to

CBI. Accordingly on 29.4.2011 2nd FIR bearing R.C. No. 3(s) /

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2011 came to be registered by CBI in the earlier offence of

Prajapati encounter case where in applicant was shown as

Accused. Upon taking over the investigation, CBI started the

investigation on its own line. However, Applicant was

neither arrested by CBI nor was shown to be arrested by CBI.

During the pendency of investigation by CBI, the proceeding

of trial did not commence and applicants continued to be in

Judicial Custody under Gujarat police without put on trial.

(H) Applicant further states that the CBI on 4.9.2012 presented a

chargesheet (In Tulsiram Prajapati ) before designated CBI

court at Ahmedabad and advanced a theory that Prajapatis

offence was actually a part of Soharabuddin conspiracy.

Thereafter one of the Co-Accused (Mr. Amit Shah)

approached the Honble Supreme Court by Writ Petition No.

149/2012 against the chargesheet dated 4.9.2012 filed by CBI

before designated CBI court, Ahmedabad. Accordingly the

Supreme Court by its order dated 8.4.2013 was pleased to

quash the 2nd FIR registered by CBI in ( Tulsi Prajapati case )

pursuant to the Supreme Courts order dated 8.4.2011 in Writ

Petition No. 115/2007 and further directed the chargesheet

dated 4.9.2012 to be treated as supplementary chargesheet in

Soharabuddin case. The Applicants state that they had no role

attributed by police in Soharabuddin case nor have they been

arraigned as Accused by the CBI.

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(I) The Applicant had preferred Application for Bail by

invoking the provisions of Section 439 of Cr.P.C in the case

arising out of quashed FIR {R.C. BS1/S/2011/s/0003 of

CBI,SCB, Mumbai,} and R.C.BS1/ (s)/ 2010/004 for the

offences punishable under Sections 120-B, read with

302,201,218,167,365,506 of the Indian Penal Code, 1860 and

Sec. 25(1B-a) Arms Act, 1959. The Honble Court after

considering the case of the Applicants was pleased to

release the Applicants on bail.

(II) The Applicant is falsely implicated in the above said crime

and there is no specific role attributed to him which

connects him with the above said crime. Therefore in view

of the above said facts and circumstances the Applicant has

approached to this Honble Court for Discharge form the

above said crime u/s. 227 of Cr. P.C. on the following

amongst other grounds: -

GROUNDS

(A) That the Applicant is totally innocent and has been falsely

involved in the present case with ulterior motives.

(B) That several of co-accused with a more directs and serious role

have been discharged by this Honble Court. The interest of

justice and the law of parity therefore, require that the

Applicant be discharged.

(C)Allegations against the Applicant are vague, uncertain and

cannot be relied upon. There is no eye witness to the incidence

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and the Applicant is made accused on the basis of the alleged

disclosure memo drawn on 09/05/2010 which is not

admissible in the eyes of law.

(D) There are various discrepancies in the way and manner in

which the case was investigated

(E) That there is no act done by, or attributed to the present

Applicant which would result in the committing of the offence

prima facie against the Applicants.

(F) The Applicant submits that there is no direct evidence for the

conspiracy with regard to killing of Tulsiram Prajapati and is

therefore to be considered on the basis of circumstantial evidence

as there is no other evidence. The Applicant submits that before a

person can be accused of involvement in a conspiracy, the well

accepted criteria that it has to be established about the crime or

the meeting of mind for the purpose of doing the act and there is

no evidence to link the accused or even remotely suggesting

about the involvement of the accused in killing of Tulsiram

Prajapati.

(G) That even if assuming that, the Applicant was the part of the

team headed by the Ashish Pandya, the applicant was just

following the orders of their seniors and on the information they

received from their superior about Prajapati.

(H) That on perusal of chargesheet, there is no material to

establish the role of the Applicant in the matter u/s. 120B r/w.

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302, 201, 218, 167, 365, 506 of IPC and section 25 (1B-a) of Arms

Act 1959..

(I) That in fact the complainant himself through his complaint is

totally silent in respect of Applicants role in the said offence in

his complaint.

(J) That there is no material on record in chargesheet demonstrating

that there is any kind of recovery from the Applicant.

(K) That no case is made out against Applicant even though all

the statements are taken into consideration.

(L) That even if the evidence/ statements appearing in the

chargesheet are taken into consideration, it does not disclose the

offence and the material adduced is not sufficient to secure

conviction of the Applicant.

(M) That the role of other Accused attributed by prosecution is

even graver than the role attributed to present Applicant and the

discharge applications are allowed vide this Honble courts. The

applicant-accused begs leave to submit though that the case

against the applicant-accused is much weaker than the case

sought to be made out against other accused who are discharged

by this court; yet is more or less on parity with the same and the

case of this applicant-accused may be also considered in light of

the fact that co-accused are discharged.

(N) That, in Sohrabuddin encounter the Pravinsinh N Jadeja,

Gurudayal Singh and Bhailalbhai K. Rathode were also members

of the escorting team of the Sohrabuddin, however they are

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shown as witnesses and not accused. The Application made by

one of the Accused to make these persons as an accused is also

rejected by this Honble Court. Therefore in view of the said case

the Applicant who was alleged to be part of the escorting team of

the Tulsi Prajapati entitled to be discharged.

(O) That there is no prima facie evidence and the evidence placed

on record is totally unworthy of credit and the material brought

on record does not reasonably connect the accused with the

alleged crime. There is no ground for presuming that the

applicant has committed offence/ offences alleged against him. It

is, therefore, necessary in the interest of justice that the liberty of

the applicant is protected by this Honble Court by discharging

the applicant u/s 227 of the Code of Criminal Procedure.

(P) That the applicant is law abiding citizen with strong convictions

of respect for human life and liberty. He has no criminal

background and will not venture to get somebody killed even in

his wildest dream. This Honble Court, therefore, ought to save

the applicants from the prolonged trial of non-exist offence by an

order of discharge at the threshold.

(Q) The applicant seeks liberty of the court to add, amend or

modify the present discharge application.

(R) The applicant has not filed any other application pertaining to

the subject matter of the present application either in this honble

court or in any other court.

(S) The applicant therefore make the following prayer:

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PRAYER

a) It is humbly prayed that the honble Court may kindly be

pleased to discharge the Applicant (Accused no. 33) in the

above mentioned special case no. 177 of 2013@ 178 of 2013 @

of 2013 @ 312 of 2014.

b) It is humbly prayed that pending hearing and final disposal of

the present application, the proceedings of the sessions case

no. 177 of 2013@ 178 of 2013 @ of 2013 @ 312 of 2014 may

kindly be stayed by this Honble Court.

c) It is prayed that this Honble court may kindly pass any other

relevant order in the interest of justice

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE

APPLICANTS AS IN DUTY BOUND SHALL EVER PRAY.

Mumbai

Dated: 13th August 2015 ADVOCATE FOR THE APPLICANTS

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VERIFICATION

I, Shri. Kiransinh Halaji Chauhan, the Applicant-Accused No.

33 above named, do hereby on solemn affirmation state and declare

that the contents of above said Application are read over and

explained to me. I state that the contents of afore going Paras are

true and correct to the best of my knowledge and the contents of

remaining parts are based upon legal advice.

Solemnly affirmed at

This day of 13th August, 2015

Explained interpreted and Deponent

Identified by me.

Advocate. Before Me.

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