An apex court bench of Justice Gyan Sudha Misra and Justice Madan B Lokur told senior counsel Ashok Shukla appearing for Pandey that the court was unanimous that the second FIR could not be quashed on a writ petition filed under Article 32 of the constitution.
The court also made it clear that it was unanimous the senior Gujarat cadre IPS officer would have to move the state high court challenging the issuance of warrants of his arrest or seeking the quashing of the FIR that was filed on December 16, 2011, in pursuance to the December 1, 2013, state high court order directing the registration of the same by the CBI.
Having said this, Justice Misra said that she was inclined to grant some interim protection to the senior police officer for four weeks or six weeks from being arrested but the senior counsel Shukla will have to persuade Justice Lokur on this count.
Justice Lokur asked Shukla, "(Why) You did not challenge the order (of filing second FIR).
As Justice Misra sought CBI's response to the option offered by the court, Jaisinh said that she could not "consent" such a interim protection and "no protection could be given to an absconder".
Ishrat Jahaan, Pranesh Gopinath Pilai, Amjad Ali and Jishan Johar were liquidated by Gujarat police in a staged shootout June 15, 2004.
Initially the investigation into the encounter killing was carried out by the Gujatrat police which had filed a closure report. The Gujarat police had claimed that the quartet were Pakistani fidayeens who had come from Jammu and Kashmir to assassinate Chief Minister Narendra Modi.
The court adjourned the hearing till Tuesday.