CBI Court to Rule on Discharge of Former Gujarat DGP, IB Men in Ishrat Jahan Case

The two IB officers have said that they can't be prosecuted without the Centre's explicit permission.

A file photo of Ishrat Jahan

New Delhi: A special CBI court was to rule on Friday (February 16) on the discharge petition filed by former Gujarat DGP P.P. Pandey and two Intelligence Bureau officers accused in the Ishrat Jahan fake encounter case. However, the court has now listed the orders announcement for February 23 (for Pandey) and February 27 (for the IB officers).

Pandey, named in the original CBI chargesheet, said in his discharge petition filed in January 2017 that the case is based on “circumstantial evidence” and the “chain of events have not been established prima facie and there is no material on record to show what could be the motive of the Applicant/accused to be a part of the so-called conspiracy”.

The Gujarat high court had previously twice dismissed Pandey’s petitions that the FIR against him be quashed.

Pandey’s application has also alleged that the CBI has “concocted the evidence by fabricating the statements of witnesses to somehow implicate the Applicant/accused” for “political reasons”. It also says that Pandey’s involvement in the incident is based “merely on suspicion”.

Shamima Kauser, Ishrat Jahan’s mother, has filed a response against Pandey’s discharge petition. “That Accused No.2 P.P.Pandey, in his discharge application has concealed and misrepresented the case against him as disclosed by the CBI. The chargesheet dated 3.7.2013 discloses material that shows the clear involvement of Accused No.2 in the criminal conspiracy that culminated in the fake encounter killings of the daughter of the present Respondent,” her response says, adding:

“…the material in the chargesheet prima facie demonstrates that Accused No.2 P.P.Pandey, who was the Joint Commissioner of Police at the time of the extra- judicial killing, was a key actor in the conspiracy to abduct the present Respondent’s daughter, keep her in illegal confinement and kill her. The evidence on record categorically demonstrates that Accused No.2 P.P.Pandey visited the present Respondent’s daughter several times when she was kept in illegal confinement in Khodiyar Farm on S.G. Highway from 12th June 2004 onwards. The statements of the witnesses recorded before a Judicial Magistrate under S.164 of the Code of Criminal Procedure prima-facie show that Accused No.2 P.P.Pandey was part of the conspiracy which led to the illegal abduction, unlawful confinement and extra-judicial killing of the present Respondent’s daughter.”

Witness statements also make it clear that Pandey was very much involved in the conspiracy, Kauser’s lawyers have argued.

The CBI, which is prosecuting the case, has also opposed Pandey’s discharge petition. “As explained in the chargesheet, it was disclosed during the investigation that deceased persons were in prior illegal custody and they were killed in a fake encounter. Sh.P.P. Pandey (applicant accused) was one of the conspirators in the alleged offence. …Investigation revealed his active involvement in the conspiracy,” the CBI response says.

Despite being chargesheeted, the Gujarat government in 2016 made him head of the state’s police force and granted him an extension in January 2017 as DGP. He was forced to quit in April when a petition was moved before the Supreme Court by retired police officer Julio Ribeiro challenging his appointment and extension on the grounds that he had been charged with committing a serious offence.

IB officials also seek discharge

Two IB officials accused by the CBI of involvement in the Ishrat case – Rajeev Wankhede and Tushar Mittal – have challenged the special CBI court order which took cognisance of a supplementary chargesheet filed on February 2, 2014 and issued summons for their appearance. The court took cognisance of this supplementary chargesheet almost four years after it was originally filed. A total of four IB officers were summoned based on this supplementary chargesheet – the others are former special director Rajinder Kumar and Mukul Sinha.

Wankhede and Mittal have argued in their petition that permission had not been taken from the Centre to prosecute them.

According to a report in the Indian Express, S.V. Raju, appearing for the two IB officers challenging the summons, argues that without sanction under Section 197 of the Code of Criminal Procedure (CrPC) – requiring prior permission from the government before prosecuting government servants – the court cannot take cognisance of the supplementary chargesheet.

Kauser has opposed the discharge petition. In her response submitted in court, Kauser has said that a court-appointed special investigation team had said that the encounter was fake. The first chargesheet, filed on July 3, 2013, named seven Gujarat police officers and the supplementary chargesheet, filed on February 6, 2014, named four IB officers.

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“The chargesheet dated 3.7.2013 and supplementary chargesheet dated dated 6.2.2014 discloses material and evidence that shows the clear involvement and role of Rajeev Wankhede and T.S. Mittal in the criminal conspiracy that culminated in the fake encounter killing of the daughter of the present Applicant,” Kauser’s submission says. The original chargesheet, her response says, makes it clear that the two IB officers in question were party to the conspiracy to kill four people – including Ishrat Jahan – in a fake encounter, “pursuant to which they were also involved in the illegal abduction and confinement of two of the men who were killed in the same extra-judicial killing as the applicants daughter”. Her reply also quotes details from the chargesheet on how Wankhede, Mittal and Sinha had placed Jishan Johar (one of the men killed) under audio surveillance and then confined him illegally. Wankhede and Sinha were also involved in the abduction of Ishrat Jahan and Javed Sheikh (another one of the men killed), Kauser quotes the CBI chargesheet as saying.

According to the July 3, 2013 chargesheet:

“That the investigation conducted so far disclosed that the above said fake encounter was a result of Joint operation of Gujarat Police and SIB Ahmedabad. In this operation the overt acts committed by the accused Gujarat Police Officers have been established by the evidence on record. However, further investigation is in progress against SIB officers, namely Rajinder Kumar, M.K. Sinha, Rajeev Wankhede, T. Mittal and others. The chargesheet revealed that the accused had committed offences punishable under Section 302, 364, 368, 346, 120-B, 201, 203, 204, 217, 218 of the Indian Penal Code and Section 25(1)(e) and 27 of the Arms Act.”

In December, the CBI had told the court that it had asked the government for permission to prosecute the IB officers, but sanction had been denied. “We forwarded the denial to concerned magisterial court which issued summons,” special public prosecutor for the CBI R.C. Kodekar had said. “My submission is that this court may pass an appropriate order whether summons should be issued or not. The accused will have legal remedies if committal of the case is allowed,” Kodekar had argued.

Note: This article has been updated with the new dates given by the CBI court for issuing orders on the discharge petitions.

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