New Delhi: The Gujarat government Friday opposed an application filed by former IPS officer Sanjiv Bhatt for recusal of Justice M.R. Shah from hearing the former’s petition to examine a witness in the appeal against his conviction in a 1990 custodial torture case that is pending before the Gujarat High Court.
The state government has now been asked to file a written response to Bhatt’s application for the judge’s recusal.
Appearing for Gujarat, Senior Advocate Maninder Singh made oral submissions saying this kind of application should not be allowed and “vehemently” opposed it. He said he will explain it further in his written submissions.
Bhatt was convicted and sentenced to life imprisonment in June 2019 by a Jamnagar Sessions Court for the custodial torture and murder of one Prabhudas Vaishnani.
Vaishnani was one of the 133 people arrested on 10 October, 1990, after communal violence in Jamjodhpur. He died days after being released from custody.
Bhatt challenged his conviction before the Gujarat High Court and filed an application in July this year for examining Dr M. Narayana Reddy (expert witness from Hyderabad) to prove the actual cause of death.
According to a Gujarat High Court order, the prosecution had examined two doctors — one who treated Vaishnani and the other who carried out his post mortem — who submitted that Vaishnani died of acute renal failure as a result of rhabdomyolysis (breakdown of muscle tissue that releases a damaging protein into the blood).
However, Bhatt has alleged that the prosecution had failed to prove the reasons and cause for Vaishnani’s death. The high court rejected this application in August after which he approached the Supreme Court in September 2022. The case was listed before a bench comprising Justices M.R. Shah and M.M. Sundaresh Friday.
Bhatt’s lawyer Aljo K. Joseph wrote to the Supreme Court Registrar saying that “certain issues which are subject matter of this Special leave Petition have been decided by one of the judges of this Hon’ble court on an earlier occasion”. He wrote that since this petition also arises out of the same FIR, “the petitioner verily apprehends that the ends of justice will not meet if the present Special Leave Petition is being heard by the same judge”.
He was referring to an order passed by Justice Shah in December 2011 when he was a judge of the Gujarat HC. He had dismissed Bhatt’s application challenging a lower court’s rejection of his request for deferring framing of charges against him in the same custodial death case. This was during the early stages of the trial in the same FIR.
However, the Gujarat government orally opposed the application. The state government has now been asked to file a written response to Bhatt’s application for the judge’s recusal.
Also read: Convicted ex-IPS officer Sanjiv Bhatt was accused of delaying custodial death case in court
‘Trial court, HC violated principles of natural justice’
Before the high court, Bhatt had submitted that he had filed a similar application before the trial court as well. However, the trial court granted them time up to 3.30 pm of 11 June 2019 “though it was fully aware that the expert witness shall not be in a position to come from Hyderabad within such a short time”.
He had submitted that “the determination of exact cause of death of late Prabhudas Madhavji is most crucial that will affect the final outcome of the appeal filed by the present applicant against the impugned judgment and order of the trial court”.
In his affidavit, Dr Reddy had submitted, “The opinion that it was a case of death due to ‘acute renal failure as a result of rhabdomyolysis’ was not a reasoned and reasonable opinion of the doctors…They simply copied that opinion from the hospital case-sheet, without knowing what it is. There are no positive findings noted at the time of postmortem examination that supports this cause of death.”
However, the high court rejected this application, observing that Dr Reddy “had no occasion to either see or examine the dead body of late Prabhudas and has merely based his opinion on the basis of the medical papers, x-rays and reports etc. of the deceased”.
It asserted that the prosecution had “produced sufficient oral and documentary evidences to prove the exact cause of death of the deceased”.
Bhatt then approached the Supreme Court. His petition now says that it wants to bring to the attention of the court “the lacuna” in the orders passed by the trial court as well as the high court and how it “violated the principles of natural justice in a criminal trial”.
It adds the trial court “failed to give sufficient opportunity and time to the petitioner to adduce sufficient evidence to prove his innocence”.
A previous version of the story said that Prabhudas Vaishnani had been in police custody for a month. That has now been corrected. The error is regretted.
(Edited by V.S. Chandrasekar)