Explained: Why a CBI court discharged last of the accused in the Ishrat Jahan encounter case

At dawn on June 15, 2004, Detection of Crime Branch, Ahmedabad, led by its then Deputy Commissioner of Police DG Vanzara (now retired), gunned down Ishrat Jahan Raza, Javed Sheikh alias Pranesh Pillai and two alleged Pakistanis Zeeshan (in the police records as 'Jishan') Johar and Amjad Ali Rana in an alleged encounter near Kotarpur Waterworks on outskirts of Ahmedabad.

On Wednesday, a Special CBI court discharged GL Singhal, Tarun Barot and ASI Anaju Chaudhary, the last of the three policemen facing charges in the encounter case of Ishrat Jahan and three others. We explain the case and what next:

What is the Ishrat Jahan encounter case?

At dawn on June 15, 2004, Detection of Crime Branch, Ahmedabad, led by its then Deputy Commissioner of Police DG Vanzara (now retired), gunned down Ishrat Jahan Raza, Javed Sheikh alias Pranesh Pillai and two alleged Pakistanis Zeeshan (in the police records as ‘Jishan’) Johar and Amjad Ali Rana in an alleged encounter near Kotarpur Waterworks on outskirts of Ahmedabad. Gujarat Police claimed to have acted on an intelligence input that Javed was coming with two fidayeens in a blue Indica, MH02 J A 4786, to kill Chief Minister Narendra Modi.

As per the FIR of the Ahmedabad City Crime Branch, filed that day by then ACP of crime branch Singhal, based on a complaint filed by then crime branch police inspector JG Parmar (now dead), the intelligence was received by Ahmedabad Police Commissioner K R Kaushik around end of May-beginning of June in 2004. It also said Joint Commissioner of Police P P Pandey had received specific information “through his personal source” that a blue Indica had left Mumbai for Ahmedabad with Javed and the “two Pakistani fidayeens”.

The FIR described the operation, and described Ishrat as “one woman terrorist seated on the seat adjacent to the driver’s seat”.

The bodies of Ishrat, a 19-year old Khalsa College student from Mumbra, was claimed by her mother Shamima Kauser, and that of Javed Sheikh was claimed by his wife Sajeda, who lived in Pune. The bodies of the two ‘Pakistanis’ were buried in a kabristan in Ahmedabad as nobody came to claim them.

By 2004 questions were already being raised about the two other encounters of Samirkhan Pathan (2002) and Sadiq Jamal Mehtar (2003). In 2006, the Gujarat High Court admitted Ishrat’s mother Shamima Kauser’s 2004 Special Criminal Application seeking a CBI investigation into the alleged fake encounter. A year later, IPS officers D G Vanzara, Rajkumar Pandian and Dinesh MN (of Rajasthan cadre) were arrested in the Sohrabuddin Sheikh fake encounter case following a Supreme Court directed investigation after Sohrabuddin’s brother Rubabuddin filed a Habeas Corpus writ on the whereabouts of his missing sister-in-law Kauserbi.

The first doubts on the encounter were raised in a 2009 inquiry by metropolitan magistrate SP Tamang that concluded the encounter to be fake.

In 2009, based on Shamima’s SCA and several other miscellanous petitions, the HC constituted an SIT to probe the encounter case with UT cadre IPS officer Karnail Singh as chairman and Gujarat cadre officers Mohan Jha and Satish Verma as members. However, Karnail Singh relieved himself of the charge and after him, Satyapal Singh (Maharashtra cadre) and JV Ramudu (Andhra Pradesh cadre), who were appointed in succession, also refused to chair the probe. Eventually, Bihar cadre officer Rajiv Ranjan Verma headed the SIT that concluded the encounter to be fake in a report to the HC.

The HC then transferred the case to the CBI with a fresh FIR filed by RR Verma, against 21 policemen including Kaushik.

What were the grounds cited by the court for discharging the cops?

The last three remaining accused from the Gujarat police cadre — GL Singhal, an IPS who is posted as Inspector General of police at the police training academy, retired cop Tarun Barot and ASI Anaju Chaudhary — who were accused of abduction, murder, criminal conspiracy, tampering of records and destruction of evidence in the alleged fake encounter of Ishrat Jahan and three others in 2004, had moved applications before a Special CBI Court seeking that the proceedings and charges against them be dropped since the state government had refused to grant sanction to CBI to prosecute the accused cops.

The state government as well as the CBI court were in agreement that the accused officers were only discharging their official duties. Their discharge applications did not get into the merits of the case.

Adjudicating on this ground, the Special CBI Court held that since Gujarat Police acted on the basis of specific information of the deceased four with a precedent of “illegal, anti-social/terrorist activities,” the input must have been “sound, solid and correct information.” The court went a step ahead and stated that prima facie, there was nothing on the record that suggested that the four, who were killed, “were not terrorists.”

In agreement with the state’s assertion, the court further extrapolated that “all the police officers are considered to be on duty for all 24 hours.” The court also took into account that previous orders by the same court were not challenged which only indicates the prosecution and victim families’ agreement with the court’s earlier verdicts.

Why was the state government’s permission to prosecute the officers necessary?

Under the Code of Criminal Procedure (CrPC) Section 197, sanction is required for prosecuting government servants for offences allegedly committed in the discharge of official duty. The CBI court earlier this month had ruled that the police officers were acting in discharge of their official duties at the time of the encounter and hence CBI must seek the state government’s permission to prosecute the three. The CBI court has also repeatedly observed across multiple orders, including when it dropped proceedings against Vanzara and NK Amin, that it had noted two different stands taken by the CBI when it comes to seeking sanction from the government to prosecute. With respect to Gujarat Police, the stand taken by the CBI was that sanction was not required. But with respect to the four Central IB officials — Rajender Kumar, Mukul Sinha, Rajeev Wankhede, and Tushar Mittal — also named as accused in a supplementary chargesheet, “the very same CBI sought sanction for prosecution” from the Union Home Ministry. The Central ministry had refused to grant sanction to prosecute the four IB officials in 2015, on the ground that they had acted in discharge of official duty.

Why did the Gujarat government refuse to grant sanction?

The Gujarat government in its order refusing sanction to prosecute stated that public servants are “special class of persons enjoying protection under CrPC Section 197.” The government also raised an issue with the fact that while the FIR registered by CBI on the complaint of IPS officer R.R.Verma had named 20 police officers as accused but the chargesheet ended up naming only seven officers, who turned witnesses for CBI’s case later.

The Home Department, in its order refusing sanction, also states that the chargesheet was filed late. “The records and report do not provide any plausible explanation for these glaring diversions from standard procedures of investigation,” the order notes.
It was also the government’s case that the facts narrated by other police officers as part of their statement before CBI were in “complete variance and contradiction to the numerous previous statements given by the said police officers and personnel and recorded by various authorities during the course of previous and/or earlier investigation / inquiry.”
The Gujarat government had earlier refused to grant sanction to prosecute Vanzara and Amin, which was also taken into account by the CBI court while dropping proceedings against the two. PP Pandey was discharged on the ground that key witnesses had made contradictory statements and prior sanction had not been sought from the government to prosecute an officer.

How did Gujarat Police’s account of the encounter differ from the case of the CBI?

As per the Gujarat Police version the CBI court ultimately relied on, the police received information from IB that four terrorists had entered Gujarat. A blue-coloured Indica Car was passing at Himmatnagar Railway Crossing and a signal was given to stop the car but it did not, following which the police fired on the tyre of the car. Resultantly, the car dragged onto the side of the road and “one of the terrorists came out of the car and started firing on the police.” In retaliation, the police also fired on the terrorists, resulting in their death. “Therefore, the act of the police officers can be said to have (been) done while discharging their official duties. Not only that but when the incident took place, all the police officers were on duties and in their official vehicles having their official arms with them,” the court’s Wednesday verdict states.

As per the CBI investigation, Ishrat and Javed were apprehended from Vasad toll booth on June 12, 2004 and they were kept at a farmhouse. Amjad was apprehended from Gota circle in the month of May 2004 and was kept at a different farmhouse. It was the CBI’s case that after apprehending all four, a meeting of high-level police officers was held and on June 15, 2004 early in the morning, all the four accused were brought to the spot and killed. The CBI depended upon statements of witnesses recorded under Section 164 of the CrPC wherein these witnesses were initially arraigned as accused but were added as witnesses to support the prosecution’s case.

What happens next in the case?

With the charges against six accused dropped and another accused, JG Parmar, dead, this is the end of the road for the alleged fake encounter case unless the CBI appeals against the order. However, CBI in the past has not appealed against the discharge of Pandey, Vanzara and Amin. The case against the IB officials is with the chief judicial magistrate after the MHA refused sanction to prosecute them.

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