CBI sources said they have gathered enough evidence about the role of IB officers in the conspiracy behind the encounter but there are contrary views on whether sanction from the home ministry is needed to prosecute Special Director Rajinder Kumar (now retired), and three other officers -- P Mittal, MK Sinha and Rajiv Wankhede.
One view holds that since Kumar was in active service at the time of the alleged crime, sanction for his prosecution is needed from the home ministry, which is the cadre controlling authority, they said. Another opinion was that since he retired from service in July this year, the agency could go ahead with its chargesheet without any need for a sanction to prosecute, they said.
The agency does not want to go ahead with a half-baked case, hence the matter has been referred to the law ministry for clarity, they said.
Sources said that as far as the role of the said officers in the alleged conspiracy was concerned, the agency had gathered enough evidence against them. They added that if the law ministry felt that a nod from the home ministry was needed before filing the supplementary chargesheet, the CBI would send a request seeking sanction to prosecute the said officers.
However, if the law ministry feels otherwise, the agency would go ahead with its supplementary chargesheet, which is ready with all the corroborative evidence in place, they said.
Meanwhile, on the question of any role by Shah in the matter, senior officials of the agency have made it clear that there was no legally tenable evidence on the basis of which he could be named as an accused in the chargesheet.
Sources said that Shah's name had surfaced after one of the main accused, DG Vanzara, claimed that the former minister had ditched him and other police officials who have been booked by the CBI in various encounter cases.
The CBI had recently questioned Shah, the Bharatiya Janata Party general secretary and the party's in-charge for Uttar Pradesh, in connection with the Ishrat encounter case. Sources said he was asked about the charges levelled by Vanzara in his resignation letter.
Sources said that Shah, who was the Gujarat home minister in 2004, when the encounter took place, was quizzed after jailed IPS officer Vanzara claimed in his resignation letter that the Gujarat government was "inspiring, guiding and monitoring" every police action from "very close quarters".
However, the CBI has not managed to gather suitable evidence to prove his direct involvement in the encounter or in the conspiracy behind it, they added.
Shah has been chargesheeted in other encounter cases, of Sohrabuddin Sheikh and Tulsiram Prajapati, and was arrested in July 2010. He is presently out on bail.
Seven officers of the Gujarat crime branch have been chargesheeted by the central probe agency in the encounter case of Ishrat, Javed Shaikh alias Pranesh Pillai, Amjad Ali Rana and Zeeshan Johar in 2004.
The CBI has alleged that the encounter was fake and was carried out jointly by the Gujarat police and IB. In the first chargesheet filed in the case, the CBI had not gone into the details of the alleged conspiracy behind the encounter but tried to establish that it had been staged. However, the agency is likely to soon file a second chargesheet in the case.
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