CBI counsel Sandesh Patil and Additional Solicitor General Anil Singh told the high court that the agency had already challenged the discharge of some junior officers in the case.
However, the CBI had decided not to challenge the trial court order that absolved senior officers, including former deputy inspector general of Gujarat DG Vanzara, Rajasthan IPS officer Dinesh MN, and Gujarat IPS officer Rajkumar Pandiyan, in connection with the alleged fake encounter killing of Sohrabuddin Sheikh and his aide Tulsiram Prajapati, they said.
The CBI's submissions came while a single bench of Justice Revati Mohite-Dere was hearing a revision application filed by Sohrabuddin Sheikh's brother Rubabuddin Sheikh, challenging the trial court orders of discharge of these officers.
The trial court had in 2016 and last year discharged Mr Pandiyan, Mr Vanzara and Dinesh MN.
Rubabuddin Sheikh has filed separate petitions challenging the discharge of the three officers from the case.
However, his counsel advocate Gautam Tiwari told the high court today that while they had been able to serve notices to Dinesh MN and Mr Pandiyan in the case, they had been unable to trace Mr Vanzara's address or contact details.
The high court had earlier directed the CBI to provide Mr Vanzara's address to the petitioner, but Mr Tiwari said the central agency had provided an incorrect address.
The court today directed the CBI to trace Mr Vanzara's whereabouts and serve him the notice directing him to present his side of the case in the HC on the next date of hearing.
"The CBI is a premier probe agency. It should not encounter any impediment in finding the respondent's (Vanzara's) whereabouts, or getting his address. We often direct the investigating officers to serve notices, so in this case the CBI should do it to avoid further delays in hearing," Justice Mohite-Dere said.
The special CBI court in Mumbai, hearing the case after the Supreme Court ordered for the trial to be transferred out of Gujarat, had discharged the above three officials on the ground that the CBI had failed to get prior sanction or the special permission to prosecute them.
However, on a previous hearing, Justice Mohite-Dere had questioned whether the lack of such sanction alone could be an adequate reason to warrant an accused person's discharge from the case.
The judge had observed that while the CBI was opposing the discharge of sub-inspectors and constables, it had conveniently gone quiet on the discharge of most of the senior IPS officers.
On Monday, Mr Tiwari told the high court that while the CBI had challenged Mr Singh and Mr Charan's discharge in 2016, the pleas were yet to be taken up for hearing by the high court.
The high court has now tagged together all the pleas filed by Rubabuddin Sheikh and the CBI in the case, and will hear them together on January 29.
Of the 38 people accused in the case, 15, including 14 IPS officers, have been discharged by the special court.
The CBI has challenged the discharge of two junior officers, and one of the 14 senior officers (NK Amin) accused in the alleged fake encounter cases of Sohrabuddin Sheikh, his wife Kauser Bi, and also that of Ishrat Jahan.
Sohrabuddin Sheikh and his wife were allegedly abducted by the Gujarat Anti-Terrorism Squad from Hyderabad on their way to Sangli in Maharashtra.
Mr Sheikh was killed in an alleged fake encounter near Gandhinagar in November 2005, after which his wife disappeared.
Prajapati, an aide of Mr Sheikh and an eyewitness to the encounter, was allegedly killed by police in Chapri village in Gujarat's Banaskantha district in December 2006.
Mr Vanzara, who was heading the ATS at the time, was charged by the CBI for having conspired with the other accused officials to kill Mr Sheikh and the other victims and pass the incident off as an encounter.
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