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IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION CRL MP NO. ______ OF 2013 IN WRIT PETITION (CRIMINAL) NO.

93 of 2011

IN THE MATTER OF

PRADEEP N. SHARMA

!P"#$#$o%"&'A(()$*+%#

,ERSUS

STATE OF GUJARAT - OTHERS

!R".(o%/"%#.

APPLICATION FOR DIRECTIONS TO THE HON01LE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON01LE SUPREME COURT OF INDIA THE HUM1LE APPLICATION OF THE PETITIONER A1O,E NAMED.

MOST RESPECTFULL2 SHOWETH

1.

That

the

Petitioner/Applicant

has

filed

the

accompanying writ petition seeking the transfer of the four FIRs lodged against him, from the u!arat "tate Police

#rime $ranch to an independent in%estigati%e agency, i.e. the #entral $ureau of In%estigation &'#$I(). This *on+,le #ourt has ,een pleased to issue notice and the instant case is now ripe for disposal.

-.

It has ,een the consistent su,mission of the Applicant herein since the last se%eral years, that he has ,een %ictimi.ed and implicated in the said FIRs due to the personal animosity, malice and mala fide of the "tate o%ernment at the ,ehest of the *on+,le #hief /inister of the "tate of u!arat0 "hri 1arendra /odi2 Respondent

1o. 3 herein. The reasons for this %ictimi.ation are twofold0firstly since the Applicant herein is the younger ,rother of "hri 4uldip "harma IP" &Retd.) who incurred the wrath of the Respondent no.3 herein due to his refusal to follow the illegal diktats of "hri 1arendra /odi and "hri Amit "hah &the then *ome /inister of the "tate of u!arat) during the tenure of "hri 4uldip "harma as the Additional 5irector "tate of eneral of Police &A5 P) #I52#rime,

u!arat, as clearly enumerated in Paras 6 to 17

of the accompanying writ petition, contents of which are not reproduced herein to a%oid proli8ity.

3.

"econdly2the Applicant+s knowledge of the intimacy shared ,y "hri 1arendra /odi with a young lady architect,

aged -9 years, from $angalore, ,ut originally from $hu! in u!arat, who was introduced to "hri /odi ,y the Applicant himself in the year -::7.

7.

That

the

Applicant

herein

!oined

the

"tate

Administrati%e "er%ices in the year 1;61 and was promoted to the IA" cadre in the year 1;;7. The Applicant has en!oyed impecca,le ser%ice record and has not faced e%en a 5epartmental proceeding against him let alone registration of an FIR till the Respondent 1o. 3 assumed charge as the #hief /inister of the "tate of u!arat, and an upright officer, who ne%er faced e%en a departmental proceeding in his entire career from 1;61 to -:1:, was suddenly implicated in < &si8) FIRs from -:1: to -:1-.

=.

That the Applicant herein was the 5istrict /agistrate of 4utch &with $hu! #ity as the 5istrict *>) during the period of -::32-::<. 5uring this tenure, he commissioned a series of pro!ects towards the ,eautification of $hu! #ity which was de%astated ,y an earth?uake in the year -::1. @ne of the ,eautification pro!ects was de%elopment of a *ill arden in the year -::= for which the said female

architect was hired as the landscape architect. The said female architect was introduced to "hri 1arendra /odi ,y

the Applicant during the inaugural function of the said *ill arden ,y "hri /odi in the year -::7.

<.

The

Applicant

herein

%erily

,elie%es

that

the

Respondent no. 3 and the said female architect remained in touch with each other for ne8t se%eral years. There was also wide spread rumours regarding the Aideo #ompact 5isc &A#5) featuring the said female architect and a man in compromising position as stated in Paras 1=21< of the accompanying writ petition. The Applicant herein has no concern with this A#5. *owe%er, the Applicant herein ,elie%es that the Respondent 1o. 3 har,ored a totally misconcei%ed apprehension that the Applicant herein is recipient of the information regarding this A#5, the contents of which, if disclosed in pu,lic, would ,e detrimental to the carefully constructed and pu,lici.ed image of the Respondent 1o. 3 and conse?uently, damage the electoral prospects of the Respondent 1o. 3. It for this reason, that a num,er of false and fri%olous cases against the Applicant herein were registered with a %iew to implicate him and 'punish him(. 9. That %ide the instant application, the Applicant most respectfully seeks the lea%e of this *on+,le #ourt, to ,ring some recent de%elopments to the kind attention of this *on+,le #ourt. These de%elopments/facts lend credence

to the su,missions made ,y the Applicant in the instant writ petition and are thus germane for the ad!udication of the instant matter.

6.

That, earlier this month, two we,sites namely2 '#o,rapost( and ' ulail( ha%e released tapes of the telephonic con%ersation ,etween "hri Amit "hah, the then /inister of "tate, *ome, time and "hri o%ernment of u!arat at that

.B "inghal IP", who was ser%ing as the

"uperintendent of Police, Anti Terrorist "?uad &AT"), u!arat "tate, Ahmeda,ad. The said con%ersations are during the period from August2"eptem,er -::; when "hri B "inghal, IP" was reporting to "hri Amit "hah. The transcripts of the taped con%ersations re%eal that the said lady architect and the Applicant herein were placed under an all2per%asi%e and intrusi%e sur%eillance at the ,ehest of a person referred to as '"ahe,( ,y "hri Amit "hah. The political party, to which the Respondent 1o. 3 ,elongs, has openly stated in numerous press conferences in the last few days that the sur%eillance was done at the ,ehest of the Respondent no. 3, "hri 1arendra /odi. Therefore, there is no iota of dou,t that the person referred to as '"ahe,( ,y "hri Amit "hah in the tapes/transcripts refer to the Respondent 1o. 3 herein2 "hri 1arendra /odi. It is pertinent to note that "hri Amit "hah was merely the

/inister of "tate, for the *ome 5epartment. The #a,inet post of the *ome 5epartment ,y "hri 1arendra /odi, himself and therefore was directly in control of the Police 5epartment.

;.

It is most respectful su,mission of the Applicant herein that the taped con%ersations re%eal se%ere and material %iolations of the Indian Telegraph Act 166=, and an a,solute disregard to the guidelines laid down ,y this *on+,le #ourt, in its !udgment dated 16.1-.1;;< in the case of CPD#B %s. Dnion of India E @rs+ reported in &1;;9) 1 "## 3:1.

1:.

It is further su,mitted that under "ection =&-), Indian Telegraph Act, 166=, phone tapping is allowed only in the 'pu,lic emergency( or in the interest of 'pu,lic safety(. *owe%er, at times when an in%estigati%e agency/authority needs to record phone con%ersations of the person who is under suspicion, the said authority is re?uired seek permission from the *ome /inistry ,efore going ahead with such an act, e8plaining thereto the specific reasons for which such sur%eillance is re?uired to ,e conducted. 5espite the guidelines under the Telegraph Act and the rules framed thereunder ,eing in place which prescri,es the procedure and the manner in which sur%eillance can

,e conducted on an indi%idual without %iolation of his Right to Pri%acy, the sur%eillance as ,ought on record ,y the anne8ed transcripts/tapes on the Applicant herein and the said female architect were in utter disregard and %iolation of the same. True copies of o%ernment of

u!arat+s Resolution dated -9 th /arch 1;;9 and /inistry of #ommunications 1otification dated 1<.:-.1;;; laying down the rules in this regard are anne8ed herewith as A11FGDRF2 .These transcripts re%eal a strong ,ias u!arat against the Applicant

and pre!udice of the "tate of

herein and the "tate+s intent to somehow implicate the Applicant herein in criminal offences. The Applicant herein did not ha%e a copy of these transcripts and was unaware of the same at the time of filing of the instant Hrit Petition. *owe%er, these transcripts now present an e8 post facto confirmation of the apprehension of the Applicant herein and as a%erred in the instant petition, that one of the reasons for %ictimi.ing him was the Applicant+s knowledge of the relationship of the Respondent 1o. 3 with the said female architect.

11.

As indicated on the a,o%e2mentioned we,sites, there are appro8imately -<9 &two hundred and si8ty se%en) taped con%ersations which were also produced ,y "hri B "inghal on :;.:<.-:13 ,efore the #$I during the

in%estigation of R#2 $"/1/"/-:11/:::=/#$I "#$ /um,ai2 which case is commonly referred to as the Ishrat Iahan Fake Fncounter #ase. The copy of the sei.ure

panchnama &which is part of the chargesheet filed in the case ,y the #$I ,efore the competent court in Ahmeda,ad), digital audio files of all the -<9 taped con%ersations, and copy of "hri B "inghal+s statement

under section 1<1 #rP# ,efore the #$I are all o,tained from the a,o%e said two we,sites. As these documents are on the record of the #$I, there is no dou,t har,ored ,y the Applicant with regards to their authenticity. The

True copy of the sei.ure panchnama dated :;.:<.-:13 is anne8ed hereto as A%%"34&" 5 A. The true copy of the statement of "hri B "inghal dated 11.:7.-:13 under

"ection 1<1, #rP# ,efore the #$I in the Ishrat Iahan+s #ase is anne8ed hereto as A%%"34&" 5 1. The true translated copy &from u!arati to Fnglish) of the

transcripts of the -<9 audio files is anne8ed hereto as A%%"34&" 5 C.

1-.

It is most respectfully su,mitted, that pursuant to the release of the anne8ed transcripts/tapes, as learnt from %arious newspaper reports, the e8planation gi%en for such e8tensi%e sur%eillance is that it was made on the oral re?uest of the father of the said female architect.

*owe%er, this e8planation seems a,solutely incredulous and unworthy of any ,elief, in light of the contents of the con%ersations that "hri Amit "hah had with "hri B

"inghal, IP" which clearly re%eal that the sur%eillance was e8tremely intrusi%e and hostile and not as innocuous and ,enign as sought to ,e made. That the e8planation of the so called re?uest from the father of the female architect is a mere after thought and the purported Cno o,!ection+ ,y the father of the said female architect does not a,sol%e "hri 1arendra /odi, "hri Amit and others guilty persons from committing %iolations of the applica,le laws.

13.

It is pertinent to note that at the time when the sur%eillance was ,eing conducted, the said female architect, was a mature lady of 3- years and not someone of tender age. The said architect was an independent professional and therefore, it is highly inconcei%a,le to state that her father approached the Respondent 1o. 3 herein, for such uncalled for and intrusi%e sur%eillance. The "tate of u!arat and the Respondent 1o.3 ,e put to

strict proof to pro%ide credi,le and cogent e%idence that such a re?uest was indeed made ,y the father of the girl and that such sur%eillance was in due compliance of the applica,le laws.

17.

That the Applicant herein seeks to draw the kind attention of this *onJ,le #ourt to the references made ,y "hri Amit "hah to Applicant herein during the course of his con%ersation with "hri .". "inghal. The Parts of the

said transcripts which directly ,ears mention of the Petitioner herein are e8cerpted herein ,elowK
'Amit "hahK That man had gone from $ha%nagar to /um,ai and is ,ack in Ahmeda,ad. In connection with the matter we are watching him also. "o today deploy 6 to 1: men, 6" .#+7. +# 84)/$(0. (1&o#6"&0.) Ho4.". T6"&" 6" 6+. *+))"/ #6" 16+9%+:+& Co&(o&+#$o% 9"6$*)"; #6$. +%/ #6" <<<<<<<=%+>" of #6" :$&)? >+##"& @""( + A+#*6 #6" A6o)" %$:6#; *+)) fo& 7o4& >+% +. 6" A$)) .#+7 6"&" fo& + /+7 o& #Ao +%/ #&7 #o B" +*#$9". I ha%e their con%ersation and know the nature of their relationship. et more men or some of your confidants. "ir I ha%e called two three men from the crime department -23 to watch the other side call for men from the I$ and some I$ men to intercept calls in the night should ,e posted inside. Amit this side, could you talkL "ir I did and according to him sur%eillance cannot ,e done at shahi,aug ,y his men. 1o no it can ,e done from a distance, what is happening, where his car is parkedM "ir I will ask him &A4") to talk to you or you put one of your own man to watch.

.". "inghalK Amit "hahK

Amit "hahK .". "inghalK

Amit "hahK

.". "inghalK Amit "hahK

.". "inghalK Amit "hahK

.". "inghalK

Amit "hahK .". "inghalK Amit "hahK .". "inghalK Amit "hahK

.". "inghalK

I !ust checked his mo,ile location and it shows in $ha%nagar. *e must ha%e left the instrument there, he was in /um,ai. Nou check it out, he must ha%e left the phone at home. *e has an additional num,er, I will ask A4 "harma to gi%e it to you. I ha%e taken it from him three now and two are showing location in $ha%nagar. *a%e to check the third one. #heck the third also. And where is the ladyL "he is sitting at 1a%rangpura near ha%mor. Hith her fiancOL Nes sir I A+%# 6$> (P&+/""( S6+&>+) $% C+$) fo& +. >+%7 /+7. +. ,+%C+&+ 6+. B""% C+$)"/ fo&. 2o4 B" *o4&+:"o4. +%/ .#&o%:. No >+##"& 6oA B$: #6" ("&.o%; (4# 6$> $% C+$). right sir(

=E>(6+.$. .4(()$"/?

1=.

It is most respectfully clarified that the contents of the a,o%e con%ersations would re%eal the hostile attitude and malicious attitude of the "tate o%ernment the Applicant

herein who+s e%ery mo%ement was ,eing followed without any cogent reasons or any illegal act committed thereto. In one of the con%ersations, "hri Amit "hah makes reference to one "hri Aan.ara, who is none other than "hri 5. . Aan.ara, IP", currently in !ail for his role in "ohra,uddin "heikh fake encounter case. It is pertinent to ,ring to the notice of this *on+,le #ourt that "hri 5. .

Aan.ara was arrested along with certain other police officers and "hri Amit "hah as a result of in?uiries pursued %igorously ,y the ,rother of the Applicant herein2 "hri 4uldip "harma, when he was in2charge of the "tate #I5 #rime. This encounter was stage managed ,y certain Police @fficers of the "tate of u!arat at the ,ehest of the

Respondent no. 3 and "hri Amit "hah, in order to further the pu,lic image and electoral prospects of the

Respondent 1o. 3. "hri 5. . Aan.ara, who was also su,se?uently arrested ,y the #$I for the fake encounter of Tulsi Pra!apati, Ishrat Iahan and "adi? Iamal, was considered at that point of time as someone who was %ery close to the Respondent 1o. 3 and "hri Amit shah and therefore, they wanted to ensure that the Applicant herein spends as much time ,ehind the ,ars as has ,een done ,y "hri 5. . Aan.ara, their close aide.

1<.

It is most respectfully su,mitted that, when these interceptions were ,eing carried out there was only one case namely2 / #ase, #R 1o. 1 of -::6, ,ased on a

pri%ate complaint. This #omplaint was general in nature, filed in the #ourt of I/F#, $hu! ,y a person not remotely affected or connected with the su,!ect matter of the complaint. The court had passed an order entrusting in%estigation to "tate #I5 #rime under section 1=<&3)

#rP#. *owe%er, the #I5 #rime had filed a re%ision application in the "essions #ourt against the said order on the ground that the !udicial court did not possess the powers under the law to direct in%estigation ,y "tate #I5 #rime, and therefore was not in%estigating it. Ar,itrarily thereafter, the #I5 #rime had withdrawn in Iune -::; the re%ision application for ena,ling it to Cin%estigate+ the case. It is therefore su,mitted, that this ar,itrary re%ersal in the "tate attitude arose out of the personal reasons of the Respondent 1o. 3 herein2the #hief /inister with regards to the matter of the said female architect. It is also

nota,le that the / #ase no. 1 of -::6 appears nowhere in the con%ersations ,etween "hri Amit "hah and "hri B

"inghal as ,eing the reason for the sur%eillance, if at all. Furthermore, it is important to note that the "tate I$, the #rime $ranch of Ahmeda,ad #ity Police, and the AT" were all in%ol%ed in this illegal e8ercise of telephone interceptions and sur%eillance who had no role to play in the in%estigation of / #ase 1o. 1/-::6.

19.

That from the aforesaid facts and circumstances and the se?uence of e%ents it ,ecomes clear that all the actions taken against the Applicant herein were ,iased and pre!udicial. The whole machinery including the higher ,ureaucracy and the Police Administration of the "tate

o%t. has ,een misused to create false cases against the Applicant. The #harge sheets filed in %arious cases are outcome of ,ias and pre!udicial in%estigations. The Applicant herein has strong reasons to ,elie%e that the lodging of FIRs and thereafter the In%estigations

conducted ,y the "tate Police are with a %iew to harass the Applicant herein and is an act of %endetta. It is the case of the Applicant that the Re%enue Proceedings are ,eing con%erted into %e8atious criminal cases. Therefore it would ,e in the interest of !ustice if all the FIRs are ,eing in%estigated ,y an Independent Agency like #$I ,eyond the control of the Respondent 1o. 3 herein. Dnless the relief as prayed for in the instant petition is not granted, there would ,e a denial of the right of free and fair trial ,y the "tate of u!arat which is the Applicant+s

constitutionally guaranteed right.

16.

That the instant application on ,ehalf of the Petitioner is ,ona fide and an order allowing the present application shall meet the ends of the !ustice. The ,alance of con%enience is in fa%our of the Petitioner and if the prayers as sought for in this application and the accompanying petition are not granted then the Petitioner shall suffer gra%e and se%er pre!udice. The Applicant has not preferred any application in this regard.

PRA2ER

I1 T*F PRF/I"F" "TATF5 *FRFI1A$@AF, IT I" T*FRFF@RF, /@"T RF"PF#TFDBBN PRANF5, T*AT T*I" *@1+$BF #@DRT /AN $F PBFA"F5 T@K

a) ,)

Allow the instant applicationP Take on record the documents and transcripts anne8ed with the instant application and direct the #entral $ureau of In%estigation &#$I) to register a case and conduct a thorough in?uiry/in%estigation into the %iolation of the Telegraph Act 166= and other applica,le laws ,y "hri 1arendra /odi, "hri Amit "hah and any other such personsP

c) d)

Allow the accompanying instant writ petition and P Pass any other and further order as may deem fit and proper to this *on+,le #ourt.

AND FOR THIS ACT OF 8INDNESS THE PETITIONER AS IN DUT2 1OUND SHALL E,EN PRA2 5rawn and Filed ,yK

SUNIL FERNANDES Ad%ocate for Petitioner 5rawn onK Filed onK