IPS officer Vipul Aggarwal, an accused in the Tulsiram Prajapati fake encounter case, sought discharge, claiming parity with former Gujarat ATS chief D G Vanzara and others who have got a similar relief.
Aggarwal, whose discharge plea was rejected by a special CBI court last November, has moved the Bombay High Court.
The trial court had held that there was sufficient material against him to frame charges for participating in the conspiracy to kill Prajapati and to destroy evidence.
Aggarwal’s petition has said that his case was similar to that of Vanzara and four other officers of the Gujarat and Rajasthan police, who were discharged in the Prajapati-Sohrabuddin Shaikh fake encounter cases.
Senior advocate Shirish Gupte argued Aggarwal’s case before Justice A M Badar on Friday.
The trial court had noted in its November order that the CBI charge sheet established, on the face of it, that at Vanzara’s behest, Aggarwal summoned ATS officer Ashish Pandya, who was on leave, to carry out Prajapati’s fake encounter.
Aggarwal later destroyed Pandya’s leave record to suit the police’s story of Prajapati’s encounter death following his ‘escape’ from custody, according to the Central Bureau of Investigation charge sheet.
The fact that the trial court recorded that Aggarwal was following Vanzara’s directions showed that he was only “performing his official duty”, advocate Gupte argued.
Since Vanzara has been discharged, Pandya should get the same relief, he said.
The high court should also consider that all key prosecution witnesses in the case have turned hostile, Gupte said.
Advocate Mahesh Jethmalani, defending the discharge granted to Vanzara and others, had made the same point before Justice Badar last month.
The judge had, however, said that at this stage, the high court can only rely on the CBI charge sheet and cannot take into consideration developments in the trial court.
The CBI opposed Aggarwal’s plea in the high court on Friday. The agency’s lawyer is likely to argue on Tuesday.
Shaikh, a gangster with alleged terror links, and his wife Kausar Bi were killed in a “fake” encounter by the Gujarat Police in November 2005. Prajapati, an alleged eye witness to the encounter, was killed in another alleged fake encounter by the Gujarat and Rajasthan police in December 2006.