The Narendra Modi government suffered a setback on Friday with the Supreme Court ordering re-investigation of the Tulsiram Prajapati encounter case by the CBI though the State had already filed the charge sheet in July 2010.

A Bench of Justices P. Sathasivam and B.S. Chauhan, in its judgment on a writ petition filed by Narmada Bai, mother of Prajapati, directed the CBI to investigate all aspects of the December 27-28, 2006 killing and file a report before the jurisdictional court/special court within six months of its receiving documents from the Gujarat government.

(According to police accounts, Prajapati, trusted lieutenant of the slain racketeer Sohrabuddin Sheikh, escaped from the custody of an escort team on way back from Ahmedabad to Udaipur in connection with the Popular Builders case. He was tracked and killed two days later. In its report, the CBI said Prajapati was the only witness to the May 2005 abduction and killing of Sohrabuddin and his wife Kausarbi, who had been travelling by bus from Hyderabad to Sangli, Maharashtra.)

Writing the judgment, Justice Sathasivam said: “As rightly pointed out by the CBI, if two parts of the same transaction are investigated and prosecuted by different agencies, it may cause failure of justice not only in one case but in the other trial as well. It is further seen that there is substantial material already on record which makes it probable that the prime motive for elimination of Prajapati was that he was a witness to abduction of Sohrabuddin and Kausarbi. Both oral and documentary evidence raises strong suspicion that the encounter was fake and stage-managed as predicted by Prajapati [himself] prior to his death in a number of communications.”

The Bench said: “Although the charge sheet was filed by the State three-and-a-half years after the incident, that too after the pronouncement of judgment in Rubbabudin's case [directing a CBI probe into the fake encounter killing of his brother, Sohrabuddin] and considering the nature of the crime that has been allegedly committed not by any third party but by the police personnel of Gujarat, we are satisfied that the investigation conducted and concluded in the present case by the State police cannot be accepted.”

The Bench said: “The fact that in the case of murder of an associate of Prajapati, senior police officials and a senior politician [Amit Shah, former Gujarat Minister] were accused may shake the confidence of the public in investigation conducted by the State police. If the majesty of rule of law is to be upheld and if it is to be ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to the CBI. Without entering into the allegations levelled by either of the parties, we are of the view that it would be prudent and advisable to transfer the investigation to an independent agency.”

In the light of the involvement of police officials of Gujarat, Andhra Pradesh and Rajasthan, the Bench directed the three States to cooperate with the CBI in the investigation.

On Mr. Shah's opposition to a CBI probe, the Bench said: “It is trite law that accused persons do not have a say in the matter of appointment of an investigation agency. The accused cannot choose which agency must investigate the alleged offence committed by them.”

On the petitioner's plea for compensation, the Bench said she could move the trial court for a direction, after the CBI filed its charge sheet.