S M Mushrif is a controversial former Inspector General of Police. He has written a book which claimed that the then ATS chief Hemant Karkare was killed by Hindu radicals, and not the Pakistani terrorists who attacked Mumbai on 26 Nov 2008 after taking a boat from Karachi. He wrote another book which claimed that Muslims were framed for bomb blasts done by ‘Brahminists’. There was a launch of this book titled: “Brahminists bombed, Muslims hanged” in Pune on 13 August 2019. Nothing unexpected from a man who claimed something so extreme in a case as heinous as the 26/11 attacks.
But what was sad, though not unexpected, was the presence and conduct of some other individuals. At this ceremony, retired judge Abhay Thipsay was present, who joined the Congress Party in 2018 after his retirement. He was the same judge who convicted 9 out of the 17 accused in the Best Bakery case. Justice Thipsay claimed that the Hindus carried out the 2008 Malegaon blasts. There was absolutely no need for him to say so when nothing has been proven in this case yet, and Islamic radicals were initially suspected to have carried out the 2008 blasts. Thipsay said that we should accept that Hindu organizations carry out bomb blasts.
The author Mushrif went to the extent of implying that Muslims were wrongly blamed for the July 2006 Mumbai local train blasts, which killed 187 people and by extension, that those blasts were done by ‘Brahminists’ since the title of his book was ‘Brahminists bombed, Muslims hanged’. He said that 13 Muslims were arrested for the July 2006 Mumbai blasts but the trial court did not give them a chance to present their side. Mushrif implied the same in the 2010 German Bakery blast in Pune when a little-known jihadi organization had claimed responsibility for the same. Indian Mujahideen terrorist Yasin Bhatkal is an accused in the case and is facing trial in it. It is one thing to defend one accused in the case saying he has been wrongly framed, but it is quite another to deny that radical Islamists did the blasts and imply that Brahminists did it. Mushrif directly alleged that the 2014 Pharaskhana bomb blast was done by Hindu radicals and not Islamists. This claim was strongly refuted by the Investigating Officer in the case, who called Mushrif’s allegations as ‘baseless’ and said that no innocents were framed and the correct procedure was followed in the investigation.
Where does this leave Abhay Thipsay? Justice Abhay Thipsay, a former Judge of Bombay and Allahabad High Courts, joined the Congress Party after meeting the then party president Rahul Gandhi on 12 June 2018. His act after his retirement of joining the Congress, and launching such a book by Mushrif has shown how such judges were affected by their ideological biases in their judgments in their tenure. Let us see here the past of Abhay Thipsay, who is the brother of a well-known chess player and Grandmaster Pravin Thipsay.
Abhay Thipsay as the judge of the session’s court in Mumbai convicted 9 out of 17 accused in the famous Best Bakery case on 24 Feb 2006. In 2004 the Supreme Court ordered a retrial and transferred the case to Mumbai.
On 9 July 2012, the Mumbai High Court in a 2-judge bench acquitted 5 out of the 9 people convicted by Thipsay in February 2006 saying there was no evidence against them. The two judges said none of the witnesses had attributed any role to them during the riots. “These five accused should be given the benefit of doubt as no witness has identified them as part of the mob that attacked Best Bakery,” the bench noted.
Even in the trial court of Thipsay, there was only one witness who testified against all 17 accused, namely Yasmeen Sheikh. We will come to Yasmeen’s case in detail later. Yasmeen changed in the Mumbai HC and did not testify against a single accused. When the Mumbai HC said that no witness had identified them as part of the mob that attacked Best Bakery, then how on earth could Abhay Thipsay have convicted them on 24 February 2006, except for a huge bias on the basis of only one witness?
Note here that all 17 accused tried in Thipsay’s court were first acquitted in Vadodara in the trial court on 27 June 2003 as well as by the Gujarat High Court on 26 December 2003. While acquitting the accused, the trial court had feared that the police may have arrested innocent people. The judge quoted one of the witnesses Lal Mohammed Shaikh, who resided close to the bakery. Shaikh had told the court that he and 17 members of his family were rescued by some of the accused. The judge was critical of the police for harassing innocents found at the site of a crime.
After the Gujarat HC also acquitting the accused on 26 December 2003, the SC ordered re-trial and transfer outside Gujarat on 12 April 2004 to neighbouring Maharashtra. Had there been low or no convictions in Maharashtra too, it would have vindicated the judgements of the courts in Gujarat. To cause some embarrassment (at least perceived embarrassment) to the Gujarat BJP Government, it was necessary to have a reasonably high number of convictions in the re-trial in Maharashtra. That was obviously the reason why Abhay Thipsay convicted these 5 accused on 24 February 2006 against whom no reliable witness gave any statement.
It may be added here that the SC which ordered re-trial of this Best Bakery case outside Gujarat did so on the petition of the NHRC (National Human Rights Commission) and not on the plea of any victim of this case. On 3 Nov 2004, Zaheera Sheikh, the key witness, in this case, turned hostile again and charged Teesta Setalvad with forcing her to name the accused as guilty. In May 2003 in the trial court in Vadodara, she had not made any statement against the accused. Later from July 2003 onwards, she started saying that all accused are guilty and that she was forced to say that they are not guilty in the court in May 2003 due to ‘fear for life’ (read ‘threat by BJP Government’). Then on 3 November 2004, she did another U-turn and said that her statement in court in May 2003 was right and that Teesta Setalvad forced her to lie from July 2003.
When Zahira Sheikh turned against Teesta Setalvad in November 2004 and insisted she had not signed any affidavit before the NHRC seeking transfer of the Best Bakery Case outside Vadodra, the NHRC discovered that the 600-odd pages of documentation filed by Teesta Setalvad’s Citizens for Peace and Justice did not contain a single signature by Zahira.
The job of the Supreme Court in its 12 April 2004 judgment was simply to decide whether to transfer the case outside Gujarat or not. SC did order the transfer and retrial outside Gujarat on the NHRC’s plea. When Zaheera Sheikh, the prime witness in the case, turned hostile on 3 November 2004 and said that she lied all along on Teesta Setalvad’s tutoring, it was found that there is no affidavit in the Court filed by her seeking transfer outside Gujarat, it was done by the Human Rights Commission whose locus standi in the matter was questioned by some.
For the record, the Supreme Court acted exactly as the National Human Rights Commission pleaded in some cases on this issue since 2003. The then NHRC chief, Justice A.S. Anand was a recently retired Chief Justice of India. The then sitting Supreme Court judges were his personal friends. Justice V.N. Khare, Justice Arijit Pasayat and others were all his erstwhile colleagues. And Justice V.N. Khare and the other judges passed exactly the same orders which the NHRC wanted them to pass in some cases.
The then Chief Justice of India, Justice V.N. Khare was an allegedly Indira Gandhi-appointed judge (of the Allahabad High Court, appointed on 25 June 1983). As an Advocate in 1975, Khare and his uncle, S.C. Khare, represented Indira Gandhi, the then Prime Minister, in her famous case against Raj Narain, alleging electoral malpractices. He was responsible for advocating the case that got the order of the Allahabad High Court stayed until an appeal could be filed in the Supreme Court. The adverse and ambiguous decision of the Supreme Court led to the imposition of Emergency in India for a period of 19 months from 1975-1977, the only suspension of democracy in India since 1947. When he retired, he said, “I found there was complete collusion between the accused and the prosecution in Gujarat, throwing rule of law to the winds. The Supreme Court had to step in to break the collusion to ensure protection to the victims and the witnesses. I was anguished and pained by the turn of events during the trial of the riot cases but was determined to salvage the criminal justice delivery system”.
In interviews to the media in 2004, Khare explained why he decided to transfer the Best Bakery case to Maharashtra for a retrial. Now we understand why it was transferred to Abhay Thipsay! In a 2012 interview, Khare revealed that he believed the 2002 Gujarat Violence was an instance of a “state sponsored genocide” when it was neither state-sponsored nor ‘genocide’ as hundreds of Hindus were also killed by Muslims in Gujarat in 2002, even after Godhra, and 40,000 Hindus were made homeless into relief camps in Gujarat, just like in Kashmir. Khare went to the extent of saying openly in 2012 that ‘I would have lodged an FIR against Narendra Modi on charges of genocide and manslaughter’.
After his retirement, Justice Khare openly revealed his opinion against the prosecution of the Gujarat government. We must remember that on 26th December 2003, the Gujarat High Court ruled that the acquittal of all 17 people in the Best Bakery case by the trial court on 27th June, 2003 was right. It asked why it took Zaheera Sheikh one month and eight days after her statement in court on 17th May 2003 to change her statement that all accused are innocent? Also, in an interview to Aaj Tak in early July 2003 she said: “Hamejaan ki parvah nahi hai kya?” (Will we not care for our lives?) which was in a manner which indicated that she was tutored to talk like this. It appeared that a person truly scared for his life would never talk as openly as candidly as Zahira did on Aaj Tak.
After Zaheera Sheikh turned hostile, Yasmeen Bano Sheikh, her relative became the star witness in this case. An exact replica of the Zaheera Sheikh episode occurred. Yasmeen Bano moved the Bombay High Court in April 2011, alleging that she was “lured and misguided” into giving false testimony against 17 accused persons by Teesta Setalvad of whom 9 were given life imprisonment, just like Zaheera Sheikh had alleged that Teesta forced her to name innocent persons as guilty in this very Best Bakery case.
Yasmeen filed the petition on April 2011, after no action was taken on her letter dated June 17, 2010, addressed to the Chief Justice of Bombay High Court. “Yasmeen gave false deposition against the accused and identified them falsely at the behest and advice of Teesta Setalvad only in the false hope that she (Teesta) would help her financially,” the petition states. It further claims that Setalvad had made Yasmeen an instrument to achieve the ulterior goal.
“Yasmeen was obsessed with the idea of getting money from Teesta and hence she did not think much about the repercussion of her false deposition against innocent persons. She is however repenting now,” the petition states. Yasmeen sought that her evidence be recorded afresh by the high court while hearing the appeal filed by the nine convicted accused challenging the trial court’s order. Yasmeen was the only prosecution witness from the Shaikh family who stood by the police’s case against the 17 accused. Rest of the family, including prime witness and Yasmeen’s sister-in-law Zaheera Shaikh, had turned hostile, alleging that they were forced by Setalvad to lie.
Since Zaheera Sheikh had already turned hostile and made exactly the same charge on Teesta, there should have been orders from the trial court of Thipsay to keep Teesta Setalvad away from all witnesses till the case was settled, or as a minimum not take the witnesses’ statements at face value and check if they were done on Teesta’s pressure. But he did not do so and convicted 9 out of 17, of whom 5 were such that no other witnesses made a single charge on them.
The Mumbai HC which convicted 4 accused in July 2012 relied heavily on the testimony of four witnesses (which did not include either Zaheera or Yasmeen Sheikh) while convicting the accused saying, “Normally, such witnesses would not implicate the accused. If they wanted to falsely implicate, then they would have taken the names of all the nine accused, but they have identified only these four,” said Justice Kanade of the 2-judge bench of the HC. Alluding to the defence’s arguments of contradictions in the statement of the witnesses, Justice Kanade said that even if there were some contradictions in their statements they could be discarded!
There were contradictions in the statements of the witnesses against the 4 who were convicted, but they were discarded on grounds of some logic saying “Normally, such witnesses would not implicate the accused. If they wanted to falsely implicate, then they would have taken the names of all the nine accused, but they have identified only these four…”. It follows the basic principle of justice that the accused must get the benefit of the doubt. If they were indeed guilty, why should there be contradictions in the statements of the witnesses? But even this bench of the Mumbai HC acquitted 5 accused against whom no one made any charges, but Abhay Thipsay had convicted them, thus playing with their lives for the sake of getting some convictions.
The Mumbai HC condemned the trial court’s [read Abhay Thipsay’s] comments against the defence’s lawyers in the Best Bakery case which he made in February 2006. The Mumbai HC in July 2012 gave them a clean chit calling the lower court’s observations against them as “uncalled for”. The high court judgement observed that Judge Abhay Thipsay had said in his 2006 judgement that the defence lawyers were in collusion with the witnesses who turned hostile during the re-trial in Mumbai. The lower court [read Thipsay] had also said the star eyewitness Zaheera Sheikh appeared to have been given “monetary inducements” without mentioning who had paid them.
“Sometimes words harm more than weapons and this is what happened in this case,” Justice PD Kode of the Mumbai HC observed in his judgement in July 2012. “This is a huge relief as now the Bombay High Court has even expunged these uncalled for observations,” defence advocate DS Jambaulikar told NDTV.
The Best Bakery case was of course not the only controversial deed by Thipsay. After his retirement, he openly spoke on the Sohrabuddin case and on the Judge Loya case. But on the case of the death of Justice Loya, he said that he believed his death was natural.
However, he demanded a probe in the case of the death of Loya. He raised questions about a special CBI court giving clean chits to high-profile accused (read ‘Amit Shah’) probed for the extra-judicial killing of a petty criminal from Gujarat, Sohrabuddin Sheikh. He had rejected bail petitions of some accused in this case when he was a judge at the high court. He told NDTV that the high court should take a re-look at the trial that let off some of the main accused. He also called for a probe into the death of CBI Judge BH Loya, 48, who died of a heart attack on December 1, 2014. “Because of the controversy surrounding Judge Loya’s death, I felt I should draw attention to the other issues,” he said.
In 2018, Abhay Thipsay made some scathing remarks on the way the Sohrabuddin Shaikh encounter case has been handled, saying the way several high-profile accused were discharged, the ”absurd” inconsistencies in the legal process, signs of witnesses being put under pressure or threat, and evidence of ”mischief” all point to the ”failure of justice and of the justice delivery system”. Justice Thipsay had ruled on four bail applications in the case. In his first interview since he retired as a judge of the Allahabad High Court in March 2017, he told The Indian Expressthe Bombay High Court must exercise its powers of revision, even suo motu if necessary, to relook the case.
Describing as ”absurd” the inconsistencies he found in orders passed by the Special CBI Court currently hearing the case in Mumbai, Thipsay said the court believed there was an abduction and a staged encounter, but still discharged senior police officers. ”You believe that he (Shaikh) was abducted. You also believe that it was a fake encounter. You also believe that he was illegally kept in the farmhouse. And you don’t believe that Vanzara (then Deputy Inspector General of Police, Gujarat), Dinesh M N (then Rajasthan Superintendent of Police), or Rajkumar Pandiyan (then Gujarat SP) are involved in that. How could the constabulary or inspector-level officers have any contact with him (Shaikh)? You mean to say a sub-inspector abducted him (Shaikh) from Hyderabad and brought him to a different state? And on the basis of the same material, you say that there is no case against the SPs (Pandiyan, Dinesh). So the suspicion is that superior officers have been treated differently,” he said.
”These orders need to be scrutinised properly before the appropriate fora, and the High Court should look into it,” he said. ”It is unusual that bail is denied to a number of accused for several years and then the court holds that there is no prima facie case against those accused. Lower level officers are not discharged but senior officers are discharged though the nature of material against them is the same,” said Justice Thipsay.
He said that he ”started reflecting on the case owing to the controversy” related to the death in 2014 of CBI judge B H Loya who was hearing the matter. Those discharged in the Sohrabuddin case include BJP chief Amit Shah, who was then Gujarat minister of state for home affairs, and Gulab Chand Katariya, then Rajasthan home minister, apart from Vanzara and Pandiyan.
As a judge of the Bombay High Court, Justice Thipsay heard the bail applications of Vanzara and M Parmar, former DSP of Gujarat’s Anti-Terrorism Squad; Narendra K Amin, DySP, Ahmedabad Crime Branch; and B R Chaubey, sub-inspector, Gujarat Police. He rejected two and granted bail to Amin in 2013 and Vanzara in 2014. Justice Thipsay said he was reluctant to grant bail to Vanzara but the Supreme Court had already granted bail to other accused in the case on grounds of prolonged incarceration, and a departure from the view of the apex court would not be a proper exercise of judicial discretion or discipline.
”I was very uneasy because I knew the facts of the case roughly as I had dealt with bail applications of some of the accused. Fifteen of the 38 accused had been discharged. I was not very comfortable in granting bail to Vanzara but I had to grant it because of a Supreme Court order granting bail to co-accused Rajkumar Pandiyan and (B R) Chaubey. However, in my order, I made it clear that there was a prima facie case against him (Vanzara). That is why I am particularly pained because they (trial court) did not pay heed to that. I said there is a prima facie case and that there is a very heinous crime also,” he said.
He gave an interview to Jyoti Punwani, who is a known anti-BJP professional activist. That interview says:
“Your bail orders to suspected Maoists and terror accused couldn’t have made you popular with the authorities. What made you give such bold judgments? In fact, you were even known as the ‘bail judge’.
Thipsay: I’ve always decided bail on the merits of the case. I’ve never been scared of taking decisions in accordance with the law. What is ‘bold’ in these judgments? In court, there can be only one conclusion, based on the evidence presented. Many a times the crime alleged is enormous, but there is no evidence against the accused. Courts are not supposed to see what’s not there….”
He thus defends his orders giving bail to Maoists and terror accused on grounds of ‘lack of evidence’, but doesn’t extend the same logic to Sohrabuddin case accused being discharged due to ‘lack of evidence’. How is it a travesty of justice when some police officers like Vanzara are discharged? Should they be forcibly convicted even if they are innocent in the case just to satisfy people like Abhay Thipsay?
After joining the Congress Party on 13 June 2018 he said speaking to The Indian Express, that ‘it is important to fight communal forces and communalism.’ The retired judge added he needed a platform and Congress was the oldest political party in the country.
This statement on the need to ‘fight communal forces’ (read BJP, RSS) shows the reason for his deeds in all cases above. There is also a need to fight casteist forces who divide the Hindu society since in no way is casteism better than communalism. And the Congress allies are Samajwadi party, BSP, RJD who are all openly casteist and use caste to divide the Hindu society. Besides, the Congress allies are Muslim League, MIM, TMMK (a party involved in the 1998 Coimbatore blasts), which are known Islamic radicals. So much for fighting ‘communalism’ by Thipsay!
It leaves us to wonder, what will happen if judges like Abhay Thipsay handle such cases? We saw that when retired SC judge U C Banerjee gave his report on the horrific Godhra massacre!
(Some part of this article was first published in Satyavijayi)
(The writer is the author of book “Gujarat Riots: The True Story” which gives all details about the 2002 riots- Godhra and after, one of the admins of www.gujaratriots.comand one of the admins of the Twitter handle @gujaratriotscom)