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Judicial Report on 'Encounter' of SIMI Undertrials Reads Like Police Press Note

The commission is silent about the incriminating videos which circulated soon after the encounter and says nothing about the inconsistencies between the bullet wounds seen and weapons allegedly used by the police.

Bhopal: The report of the judicial probe into the police encounter of eight alleged SIMI operatives may as well be read as a Madhya Pradesh police press note of the shootout that took place on October 31, 2016 on a hillock near Bhopal. For, the one-member justice S.K. Pandey commission of inquiry has relied entirely on the controversial police version of the jailbreak-cum-encounter to conclude “the use of force resulting in the death of the escaped persons was quite inevitable and quite reasonable under the prevailing circumstances.” Not surprisingly, the policemen involved in the encounter – leaked footage from which was strongly suggestive of an extra-judicial execution – emerge blameless.

The probe was set up by the Madhya Pradesh government following the controversial manner in which the eight SIMI members were gunned down hours after they allegedly escaped from Bhopal Central Jail. The men were being tried for several cases, including offences punishable with death or life imprisonment. Mohd Saliq, Zakir Hussain, Amjad Khan, Mehboob Guddu, Mohd Aqeel Khilji, Mujeeb Sheikh, Mohammad Khalid Ahmad and Abdul Majid were killed in the police shootout.

The commission was mandated to investigate, and fix responsibility, for the escape from jail by the eight men – all allegedly members of the banned Students Islamic Movement of India (SIMI) – and probe whether their killing was warranted. Amateur videos and a citizens’ fact-finding report cast doubts on the police account, leading to allegations that the deaths were staged.

When the commission was set up, it immediately attracted controversy because of  Pandey’s alleged connections to the Rashtriya Swayamsevak Sangh. The official delay in allotting the commission premises and staff became another media talking point. Pandey was initially asked to submit his report in three months and got a six-month extension. The panel report was submitted on August 24 last year but had been kept under wraps till this week.

Dissenters targeted

Among those who spoke up against Pandey was the state’s former advocate general, Anand Mohan Mathur, who appealed to the chief minister to reconsider his appointment. “I have known Justice S.K. Pandey from the time he was a civil judge at Jabalpur. He is known to be a RSS sympathiser and, therefore, will not be a suitable person to conduct an impartial probe into such encounter,” he said in a letter to Chouhan shortly after Pandey’s name was announced on November 7, 2016. For his pains, the nonagenarian lawyer had cow dung hurled at him by over 200 right wing activists’, who gheraoed him at his home in Indore. They shouted slogans, calling him anti-national, and tried to blacken his face.

The commission was again mired in an almost farcical controversy in February last year as to whether or not Pandey had threatened to resign over not being provided a car, accommodation and other facilities. The local media reported that he left the Circuit House in Bhopal, where he was staying, to catch a bus for his home in Sagar on February 4, but was persuaded to return by government officers, including the chief minister’s principal secretary, S.K. Mishra, and additional advocate general Pushpendra Kaurav. Pandey later said there had been some “confusion” and that he had not resigned.

Bhopal jail break

Police officers and Special Task Force soldiers stand beside bodies of the eight suspected SIMI operatives who escaped the high security jail in Bhopal on October 31, 2016. Credit: Reuters/File

Barring a set of recommendations for strengthening the Bhopal jail security and penalising 10 jail employees for negligence, Justice Pandey’s report appears to have reproduced a combined version of what the police and jail authorities came up with. The commission has held the low height of the jail responsible for the escape which later resulted into the death of the escapees in the questionable encounter.

Police version endorsed

The report, which was tabled in the state assembly on Monday by general administration department minister Lal Singh Arya, has accepted the Bhopal central jail authority’s stand that the slain undertrials used a key made of a toothbrush to open their cell’s lock and then scaled the outer high wall of the jail with a ladder using bedsheets and wooden pieces. It has also accepted the claim that before fleeing, the SIMI activists tied a warder and slit the throat of another jail sentry while the other jail employees were asleep in the early hours of October 31.

Relying on the affidavits filed by jail and police officials, sitemaps and photographs, the judge observed that “after careful scrutiny and critical examination” he found that they are corroborated by facts because escape was easy with the help of a makeshift ladder given the “low height of the wall”.

The jailbreak part of the inquiry is based on the eyewitness account of Chandan Singh, which the commission concluded is “quite believable.” Chandan Singh was the jail warder who was allegedly found tied with rope and his mouth stuffed with a piece of cloth.

“When freed, he ( Chandan Singh) narrated the incident. The officials found Ramashankar Yadav (jail sentry) dead in Block-A,’’ the report says.

Unanswered questions

The report, however, omitted an important fact that only four out of 42 CCTV cameras installed in the jail premise were functioning on the Diwali night when the alleged jailbreak happened. These cameras would have captured the alleged movements of the suspects, says advocate Pervez Alam, who represented some of the slain undertrials.

Video grab of the ‘encounter’ had caused nationwide uproar when clips were run on TV channels and raised questions on genuineness of the encounter. Credit: YouTube

Another question that remains unanswered is: did the suspects have the help of insider in scaling the 30-foot high wall of the most secure jail of Madhya Pradesh? Also, why were the cells in which the terrorism undertrials were lodged left unguarded? The commission has not touched upon these questions.

On the encounter, too, which happened at a hillock eight hours after the alleged jailbreak 10 km away, the commission has shown remarkable trust in the police version.

“The police action was lawful under Section 41 (any police officer may arrest persons who have escaped from lawful custody) and 46 (2) (3) (if such persons forcibly resists the endeavor to arrest them or evades arrest, police may use all means necessary to affect the arrest) of the Code of Criminal Procedure (CrPC)”

This observation runs contrary to the video clips purportedly recorded on the mobile phone of the police men involved in the encounter police. In one of them, a rifle-welding policeman is shown yelling ‘Zinda Hai, Mar Do’ while one of the eight escapees is lying very close to him. In the other, some police officers at the Bhopal police control room are seen congratulating their colleagues on mobile phone at the encounter site for having finished off the alleged terrorists. The video clips caused a nationwide uproar when they were run on TV channels and raised questions on the genuineness of the encounter.

A fact-finding report by the Quill Foundation and the National Confederation of Human Rights Organisations also highlighted several inconsistencies in the official versions of the alleged jailbreak and the police encounter.

While state home minister Bhupendra Singh and senior police officers maintained that the encounter was genuine, opposition parties and public-spirited individuals had alleged that the suspects were neutralised without giving them a chance to surrender or be taken alive.

The Pandey commission report is silent on the video clips. Instead, the report says the police formed separate teams for action, covered the area and did not allow the accused persons to make further advances as per their plan.

“It was necessary for the police to open fire on persons who had escaped from lawful custody. Even after the police opened fire they showed no intention to surrender and as a result, sustained injuries and died on the spot,’’ the judge said quoting depositions.

Citing more depositions, the judge agreed that three police teams zeroed in on the accused to arrest them but when asked to surrender they (SIMI members) opened fire and tried to injure policemen with sharp-edged weapons. The report, however, does not mention or enquire into how the SIMI members acquired their weapons (.315 bore and 12 bore country-made pistols and sharp edge knives).

Even the then Madhya Pradesh ATS chief had said that these youths were not armed, though the Bhopal range IG claimed they were, claims advocate Parvez Alam, representing some of the families of the deceased. Why did all of them move together rather than dispersing and how come they could not travel beyond 10 kilometres in eight hours? How did three policemen receive knife wounds when bullets were used in the encounter?  The mystery over these questions is not unravelled.

Alam says, “We would have explained all these unanswered questions had documents and evidence been shared with us but we were kept in the dark.” He also said he had already moved a petition in the Supreme Court seeking a CBI probe into the encounter.

On dismissing the affidavits of the slain operatives’ kin, the Pandey commission report avers, “They ( the kin) are neither witnesses of the incidents alleged nor they have any personal knowledge of what actually happened in the night between October 30 and 31, inside the jail or at Manikhedi Kot Pathar (encounter site).

Dismissing the probe report as hogwash, Alam says “We were not given even a copy of the FIR registered with the Gunga police station after the encounter though it is a public document. Even copies of the post-mortem reports were denied to us,” he said.

Some media reports have claimed that the post-mortem reports mentioned that all the entry wounds on the slain suspects’ bodies measured between 0.4 and 0.5 cm in diameter, which is consistent with small calibre weapons. It means that the bullets were pumped in from a close range. The police, however, claimed the encounter party used AK47, Insas rifles and pistols. Had the escapees been fired at from AK47 or Insas rifles, the size of the entry wounds on the bodies ought to have been bigger in diameter than they apparently were.

The slain SIMI suspects, according to the post-mortem reports, got bullet injuries either on the left and right sides of their chests, hips and backs or on their heads from a close range. This shows that the police team perhaps did not make an attempt to catch the suspects alive. And they were fired at above their waists, which was in violation of the Supreme Court ruling that says that the police should fire below the waist.

Alam wondered why the panel did not consider the fact that the slain persons after allegedly escaping the jail were wearing new clothes and shoes.

The Opposition Congress said the report was not surprising as the state government wanted to hush up the matter right from the word go. The leader of opposition in state assembly Ajay Singh dubbed it as trash.

The family members of some of those who were killed said the report was biased and that they would move the high court or Supreme Court against it.

“We were expecting it as the government was acting in a biased manner from the very first day. We will move the Supreme Court against it,” Khilji’s brother Khalil Chauhan has been quoted as saying by an English daily.

Minister for jail Antar Singh Arya said the Opposition’s charges were baseless. The judicial commission had done its job well and the government will look into its recommendations for strengthening security arrangements in jails, he said.

The judge recommended the constitution of a committee to examine security measures to stop such incidents at jails and asked the government to start a training institute for jail officers and staff on the lines of one in the Punjab.

In its action taken report, the state government said the height of the six-meter outer wall of the jail will be increased by adding a 1.5 meter electrified fencing on top. A sum of Rs 3.90 crore has been sanctioned for electric fences at 11 central jails.

The jail department also held 10 jail employees responsible for the alleged escape and has initiated an inquiry to probe allegations of negligence. A probe is also on against a Special Armed Force staff on duty that day.

Communal polarisation

Coming as it does barely five months ahead of the Assembly elections, the judicial commission report is likely to become an issue for the ruling BJP to bolster its claim of ‘zero tolerance against terrorism’. The Congress is shying away from raking up the report lest it helps the BJP polarise voters on communal lines in the run-up to the polls.

Chouhan had announced the judicial probe into the encounter shortly after he publicly commended the killings and sought endorsement by a 10,000-strong crowd of party workers and sympathisers, who obligingly shouted Vande Mataram and Bharat Mata Ki Jai. His hand was apparently forced by amateur videos suggesting these were extra-judicial killings.

The ruling BJP and other affiliates of the Sangh parivar have unabashedly celebrated the killings. The policemen involved in the operation have also been felicitated.

When he was once asked why he called the slain men “dreaded terrorists” when the jail department had in its report merely described them as undertrials, Chouhan’s cryptic reply was, “It is a matter of perception”.

Referring to terrorists as “enemies of humanity’’, Chouhan had called for speedy trials. “How long can you keep them under trial? Some people even get chicken biryani in jail,’’ he had said and spoke about “appeasement” without naming any political party.

Rakesh Dixit is a Bhopal-based journalist.

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