Justice Harsha Devani adjourned the hearing to June 28 after the probe agency opposed the hearing on grounds that a division bench of this court was already hearing the encounter case and hence Pandey's petition should also be placed before the same bench. A division bench of Justices Jayant Patel and Abhilasha Kumari, which had in December 2011 ordered CBI to take over the investigation of this case, has been monitoring the probe and giving directions to the agency periodically following their progress reports.
However, Justice Harsha Devani, while rejecting the argument put forward by CBI lawyer Yogesh Rawani, observed that, "satisfy this court that how does a division bench monitoring the investigation can look into a petition seeking to quash an FIR."
Following the submissions by CBI, the court refused to pass any order to put this petition before the division bench but permitted the central agency to make representation before the Chief Justice in this regards and adjourned the hearing.
The FIR, filed by CBI in Ishrat case, alleges that Pandey provided the "so-called crucial intelligence inputs" to the fellow officers which said that Ishrat, a college student, and three others were LeT operatives and were on a mission to assassinate Gujarat Chief Minister Narendra Modi.
Pandey, as the Joint Commissioner of Police, Ahmedabad, was heading the crime branch when Ishrat, Javed Shaikh alias Pranesh Pillai, Amjadali Akbarali Rana and Zeeshan Johar were killed in an encounter with the Gujarat police on the city outskirts on June 15, 2004.
Pruthvi Pal Pandey, a 1982-batch IPS officer, who was declared an absconder by the CBI court here on June 21, has claimed in his petition that he had merely passed on the intelligence input that Rana, Shaikh and Johar were terrorists and were planning to enter the city to kill Modi.
"There is no specific allegations against him even in the FIR filed by CBI apart from passing the intelligence inputs, which does not constitute an offence and still agency wants to arrest him," argued advocate Rasesh Sanjanwala on behalf of Pandey.
"Till now no one has disputed that two fidayeens were to travel to Ahmedabad with an aim to assassinate the Chief Minister and Pandey cannot be faulted for asking his subordinates to inquire into the matter as it pertained to the security of CM," he argued further. He also said that, "had he not passed on intelligence inputs to his subordinates for further action he would be failing to perform his duty and would be accused for neglecting his duty."
Pandey, in his petition, also alleged that IPS officer Satish Verma, who was assisting CBI in the probe, initiated proceedings against him as he was 'jealous' of his achievements and since 2004-05 has been malafidely acting against him. Meanwhile, father of Javed Shaikh alias Pranesh Pillai who was among four people killed in 2004 encounter, requested the court to become party in Pandey's petition to oppose it.
Court has asked advocate Mukul Sinha, who is representing Pillai in the case, to file an application in this regards and it will be heard by the court on Friday.