Gyan Sudha Misra: “It’s prerogative of this court to issue notice and it is your duty to satisfy us”

The Central Bureau of Investigation on Friday opposed in the Supreme Court top Gujarat police official P.P. Pandey’s plea, seeking stay of his arrest in the Ishrat Jahan encounter case. The CBI had obtained a warrant from a lower court for the arrest of Mr. Pandey, declaring him a fugitive.

Additional Solicitor-General Indira Jaising, appearing for the CBI, told a vacation Bench of Justices Gyan Sudha Misra and Madan B. Lokur that the Additional Director-General went missing in April this year after applying for sick leave and had not challenged the Gujarat High Court order directing registration of a fresh First Information Report in this case by the CBI; nor had he challenged the May 2 lower court order directing issuance of an arrest warrant against him for failing to respond to a summons.

Mr. Pandey approached the Supreme Court, seeking to quash the criminal proceedings against him. He said he had been falsely implicated by jealous IPS colleagues and that he had just conveyed intelligence information (of threat from terrorists to Chief Minister Narendra Modi) to Crime Branch officials.

Mr. Pandey was Joint Commissioner when Ishrat Jahan, a Mumbai college student; Javed Shaikh alias Pranesh Pillai, Amjadali Akbarali Rana and Zeeshan Johar were killed by the Gujarat police allegedly in an encounter on the outskirts of Ahmedabad on June 15, 2004. The police at that time claimed that all four were terrorists on a mission to kill Mr. Modi.

To a question from the Bench whether two FIRs could be filed in the same Ishrat Jahan case, the ASG said the second one was registered on the directions of the Gujarat High Court and the petitioner-police officer, who had passed on intelligence reports that the four deceased were terrorists. Mr. Pandey was one of the masterminds of the killings organised by police officers, Ms. Jaising said, adding that in such a case the Supreme Court ought not to have issued notice to the CBI on his writ petition.

When Justice Gyan Sudha Misra took exception to the ASG arguing agitatedly, Ms. Jaising said: “I am agitated because you had issued notice in this case.”

Justice Gyan Sudha Misra said: “It is the prerogative of this court to issue notice and it is your duty to satisfy us. We could have given relief to the petitioner even without giving notice and your presence.” The ASG replied, “You can do because you are the Supreme Court of India.”

Senior counsel Ashok Shukla, appearing for the petitioner, justified the filing of the writ petition, stating that since the FIR was registered on the directions of the High Court, it would be futile to challenge it (FIR) in the same court. However, the Bench made it clear that it could not entertain the writ petition to quash the criminal proceedings as the remedy lay in filing a plea under Section 482 Cr.PC in the High Court.

The Bench said it could consider granting Mr. Pandey interim protection of stay of arrest until after the High Court considered his petition on its merits. The matter is posted to June 11 for further arguments.