CBI today faced tough time in the Supreme Court which questioned it for making the plea for shifting the trial of Soharabuddin Sheikh fake encounter case, involving former Gujarat Minister Amit Shah, outside the state without following the correct legal procedure.
     
"The homework is not done fully. The application has not been filed (seeking shifting of the case outside the state)," a Bench comprising Justices Aftab Alam and R M Lodha said.
     
CBI was also arguing that the Bench should also consider handing over the investigation into Tulsiram Prajapati murder case, which was pending before another bench to it.
     
"How will you expect us to deal with either of your two requests?" the Bench said pointing out that the plea for shifting the case outside the state cannot be considered as CBI has not filed an application for this and handing over Prajapati case was being heard by another bench of the apex court.
     
"Since this (Prajapati) matter is the subject matter of separate proceedings before another bench, how can we go into it"? the Bench said while brushing aside CBI's argument that both the killings (Soharabuddin and Prajapati) have some connections.
     
Senior advocate K T S Tulsi, appearing for CBI, contended the status report in which the agency has sought shifting of the case, itself was sufficient for the court to pass an order in this regard as the probe was conducted on the orders of the apex court.
     
However, the plea was opposed by Shah's counsel and senior advocate Ram Jethmalani who said CBI cannot seek transfer of the case without filing a formal application under section 406(2) of the Code of Criminal Procedure.
     
The Bench agreed with his submission and said "as of now, we don't have application under section 406(2)".
    
At this point, Additional Solicitor General Indira Jaising interjected in the proceedings, prompting the Bench to ask "how she was appearing in the matter." She said a notice in the matter was also issued to the Centre and sought a copy of the status report.
    
However, the Bench continued with the proceedings and made it clear to CBI that it has to make an application.
    
Tulsi said government has taken a decision after consulting everyone and "we are in the process of making the application as the matter has reached the Attorney General".
    
"There should be an application. Let us be very sure," the Bench said and asked CBI to argue on its plea seeking cancellation of the bail granted to Shah by the Gujarat High Court on October 29.

While Tulsi was alleging that the atmosphere was not conducive for fair trial in the state due to the influence of the accused (Shah), Jethmalani said the role of the Centre was also not fair in the case.
     
He said some of the events have to be recalled and specifically pointed out as to how Solicitor General Gopal Subramanium was assisting the court in the matter as amicus curaie. "We are fighting the battle with the central government," he said during the proceedings which also witnessed some heated exchange of words between him, Tulsi and Jaising.
    
However, when Tulsi was narrating how witnesses like Azam Khan and others were kidnapped by the state police officials and forced to sign affidavits before crucial proceedings, the Bench wanted to know if any fresh incident of that kind had occurred after it passed an order that Shah should move out of the state.
    
Tulsi said there is fresh proof of influencing witnesses and tampering with evidence which will be placed before the court in a sealed cover.
    
Earlier, Jethamalani asked the Bench to provide more documents which were supplied to it by CBI contending that he needs them for countering the arguments of the agency. "That is in our mind," the Bench said before posting the next hearing for January 27.