Siddharth Varadarajan: Hello and welcome to this special discussion on The Wire. I’m Siddharth Varadarajan and joining me today will be Vrinda Grover, advocate and counsel for Ishrat Jahan’s mother, Shamima Kausar, in the matter of her custodial killing, fake encounter that goes back to 2004. We will in the course of our discussion try to shed light on the recent judgement that has come from the CBI court in Ahmedabad, which essentially has discharged Mr P.P. Pandey who retired finally as the chief top police officer in Gujarat, but was at the time of the crime joint commissioner in Ahmadabad and was one of those police officers accused after the series of, should we say miss investigations and missteps.
And finally, after the intervention of the Supreme Court, you have an SIT setup, SIT then is directed to file an FIR with the CBI. The CBI then takes up the case at the end of 2011, and under CBI essentially prosecutes this case, but Mr Pandey has ended up getting discharged before the trial itself has begun.
This is somewhat reminiscent of the discharge of Mr Amit Shah and a series of senior police officers in the Sohrabuddin case, which is, of course, a different case, but it’s hard not to think that with Pandey’s discharge in Ishrat Jahan’s case, we also now see a series of sequential discharges where finally one by one, all the people accused are let off.
So Vrinda Grover, what are the broad reasons why you are dismayed by the judgment of the trial court that discharges Pandey. You’ve read the judgement. And, its right here with you and you’ve read through it carefully. Tell us what some of the arguments are that the judge put forward and why you think they are flawed.
Vrinda Grover: The reason why I find the order discharging P.P. Pandey troubling is because it seems to be completely contrary to the law. The law, as settled by many judgments of the Supreme Court, is against the law of discharge. It’s against the law of appreciating evidence. What is the court supposed to see at the stage of framing of charge? The law is very clear. Is there a prima facie case made out? Is there grave suspicion to show that this accused may have a role to play? That is all the court is meant to do at this stage. You don’t need to show evidence of the kind that can secure a conviction.
The court accepts that the CBI investigation – and I’ll just pause here and go back – that the CBI investigation began in December 2011 and in July 2013, the chargesheet had been filed. In February 2014, the supplementary chargesheet is filed in the Ahmedabad court. This comes after 2004, when the matter has gone back and forth many times and an SIT appointed and monitored by a division bench of the Gujarat high court informs the court through its, and this is a unanimous decision of the SIT, that it was a fake encounter at which point the Gujarat high court directs that the matter be handed over to the CBI for investigation.
In the course of investigation, the CBI actually records statements before the magistrate, which obviously have a greater value in law than a statement before a police officer. The statements that we have relied upon to show that P.P. Pandey was involved in the criminal conspiracy of all police officers are all recorded before a metropolitan magistrate in Bombay. Those statements show that in the criminal conspiracy, there was an illegal abduction that takes place of Ishrat Jahan and Javed Sheikh on the night of June 12, 2004, and they are kept in illegal custody in a farm house called Khodiyar Farm.
This is admitted and this is the CBI’s case. This is not disputed by the order discharging P.P. Pandey, and the order says he wasn’t there on the morning of June 15, early hours of June 15, 2004, where the encounter, stage encounter took place. As we know, the law of criminal conspiracy says everybody doesn’t need to have an overt act. That has to be some meeting of minds, being part of the plan. There are, as I said, police officers statements before a magistrate, which say P.P. Pandey came to Khodiyar Farm, there are two direct evidence and one who says he was part of the framing, of drafting of the fake FIR also.
Also, two of the policemen say he came there and he interrogated the girl, the girl being the deceased Ishrat Jahan, so clearly he was part of the illegal abduction and custody, and surely Khodiyar Farm is not an extension of Gujarat prisons and, therefore, it is within his knowledge that these people are in illegal detention now. Then his gunman is used with permission, and there is evidence to that effect at the stage encounter, he is with Mr. Vanzara where they are prior to the encounter drafting the FIR, which they shall thereafter file. And there are witnesses who say that he went to Vanzara’s office. How does the court dismiss all this as no evidence?
The court says, it’s ‘unlikely’ that a senior police officer will go to a junior police officer’s office. Now, there are many things which should not happen, but which have been happening and that is what the encounter actually tells us. Then he says, there are two policemen who are saying he came here and interrogated, but that’s just oral evidence. If there is more evidence or there isn’t more evidence, these are matters to be tested in trial.
What is astounding in what the court does is that he says these statements recorded by the CBI, and the CBI in order to ensure that these people are not lying at all, no allegation of pressure can be put or duress can put on the prosecuting agency, they are recorded before a magistrate. He compares them to the statements recorded in June of 2004 when the whole fake story of the encounter is created. The officers who killed the four then lodge an FIR with the crime branch and they create a record – a record that is set aside by the SIT, by the Gujarat high court and set aside by the CBI investigation – to say that there is contradiction in the statement of the same witnesses. But, of course, there will be. And that cannot be a ground at this stage to discharge him. So there is evidence, direct evidence of him having visited and the court does not deny it. In fact, it’s very interesting, in his discharge application P.P. Pandey says, “Yes, I visited Khodiya Farm”. So there is no dispute to that fact, that to my mind was sufficient to say that he knew of this illegal custody and therefore has a role to play in the criminal conspiracy. It is also said in this order that P.P. Pandey received the intelligence input, that there was some terrorists who were entering Gujarat
SV: Now, these are inputs that are meant to have come from the IB?
VG: From the IB, in the Centre. With respect to which there is a supplementary chargesheet that is filed against four IB men, the senior-most officer being Mr Rajendra Kumar. Now in a criminal conspiracy where there is an IB input, which P.P. Pandey has received, this supplementary chargesheet seems to be a slightly mysterious document. We have, for over a year, been requesting the court to give us a copy of the chargesheet so that one can represent and assist the court.
We’ve even filed for certified copies of this supplementary chargesheet. On each occasion the court has denied us permission to look at the supplementary chargesheet. It’s very puzzling how one accused in a conspiracy can be discharged without all the documents being before the court. So the court actually looks at investigation which has already been written off as completely fraudulent, and does not look at documents because they are not before him yet, which actually make a very crucial link between the accused and –
SV: So where is the supplementary chargesheet?
VG: Well, it should be in the magistrate court of the CBI. Because month before last, summons have been issued to two of the IB accused. They have protested against those summons. We have filed a reply. I filed a reply on behalf of Shamima Kausar saying that their arguments should not be entertained and at that time have asked for a copy of the supplementary chargesheet, which we have not been given. On that also an application is now pending before the Gujarat high court because clearly a chargesheet cannot be a secret document and it should be made available to those who are engaged in this case.
SV: And in any case that chargesheet did not come into the hands of the judge who discharged P.P. Pandey
VG: It isn’t before the judge. He does not even refer to it.
SV: Shouldn’t he have waited if the supplementary chargesheet is a part of the wider case to establish Pandey’s involvement, shouldn’t he have waited for that?
VG: We have made that request. We have put it in writing before the court that was one of our submissions, that you must wait till the supplementary chargesheet is before you, because this is a case of criminal conspiracy and P.P. Pandey says he received an intelligence input and that’s where the link comes. The other two men who are killed, because in the conspiracy, what does it show? One was actually picked up in April 2004 and one in May 2004. One was under electronic surveillance, one was kept in Arham Farms. And all this is within the knowledge of the joint commissioner of police.
Moving on from there, what the court says is that, you know, a lot of it is just conjecture and assumption that no, it could not have happened like this. Now, if the investigation shows, in fact, there is precise evidence of his visits, date, time. Then he says, sanction should have been obtained to prosecute P.P. Pandey. And now here again, the law is very clear. First the CBI says, this was not in the course of official duties because surely you can’t keep people in Khodiyar Farm and therefore we don’t need sanction for prosecution. The Supreme Court has also said committing an offence is not part of your official duty. And in any case, the Supreme Court has said sanction can be obtained at any time during the trial. That cannot be a ground for throwing the case out so presumptively at such an initial stage.
The court then questions the investigating agency at length and says, why have these statements being recorded? Why did it take two years? Actually it doesn’t take two years, its from December 2011 to July 2013. Then he says, why did you record the statements in Mumbai and not in Gandhinagar? This question can be put to the investigating officer when he steps into the witness box. Surely, the court is not saying that a statement recorded before a metropolitan magistrate in Mumbai will not be, is not correct and accurate. The other thing which we need to look at is that the same accused, P.P. Pandey had actually filed for quashing in Gujarat high court, before the chargesheet had come. The Gujarat high court – single bench – had held that there is sufficient evidence.
It is quite strange that CBI trial court judge, even though this was placed before him, that this is the view of the superior court, has not paid any heed to it. In fact, most of the conclusions arrived at for discharge are actually based on either reading material which is no longer before him and has been set aside or using conjectures and assumptions which in criminal trial are best avoided or stating that, you know, there has been a huge threat to Gujarat from December 1992; from the time of demolition of Babri Masjid. And that there have been repeated attacks in Gujarat and therefore the senior police officers were always alert and they could never have committed a fake encounter.
Now in a criminal trial, where we must look only at evidence and nothing else to draw such broad and open-ended conclusions, is actually completely unwarranted. The other aspect, those are the ones that are very, very worrisome because it seems that the judicial order is no longer centering it’s decision on evidence, but rather is drawing upon other aspects, for instance, to say who are these people. So it’s very important for me in my case to make a distinction between Amjad Ali and Jeshan Johar.
SV: Who are the two Pakistanis.
VG: Yes, who were already under the surveillance and Javed Sheikh and Ishrat Jahan. Nowhere has it come on record that Ishrat was a member of any terror group, although there’s a lot that’s been said, but it’s not there in any legal document. The court then records the arguments made by the defence counsel citing the headily evidence recording in the Mumbai attack case, which is not before the court. No evidence has been placed before the court. The defence counsel cites that evidence, doesn’t place anything on record and the court says this is not before us, but it is a matter of deep consideration.
So what really is lurking in the mind of the court becomes a little worrying. And then he says she knew about the illegal activities, the car was carrying all this. It is contradicted by the chargesheet. The court is actually asserting as facts and evidence what is not before it and on that ground stating that ‘senior police officers do not commit fake encounters’. Although the history, the legal history of this country is quite to the contrary and Supreme Court judgments are to the contrary, and then states that that is a reason enough to not –
SV: So the CBI chargesheet essentially establishes that Ishrat Jahan and Javed Sheikh aka Pranesh Pillai come into Gujarat police custody under different set of circumstances than the two Pakistani nationals who appear to have been in custody perhaps even earlier than these two were apprehended.
VG: A month earlier.
SV: Now, they are all brought together in one place though or are they held in separate farms?
VG: In Khodiyar Farms is only Javed and Ishrat. Arham Farms is one of them, I think Amjad Ali. Jeshan Johar is held elsewhere. They are brought together at the time of the staged encounter, in the early hours of June 15.
SV: Put into one car and then presented as if they were on a mission together.
VG: And, in fact, the forensic evidence, which he doesn’t even refer to, would show you that the empty cartridges that are found there actually don’t match the so-called weapons which are planted on Ishrat Jahan and the others. The bullet recovered from the deceased does not match the weapons that they claim they have used. It’s not just grave suspicion. There is a very strong case available here, at least for the trial.
SV: Yeah, and P.P. Pandey, you said in his discharge submission acknowledges that he went to Khodiyar Farm. Now I presume Pandey still sticks by the claims of the original so-called fake FIR, that these people who are coming on a mission to kill Modi whatever it is. What is the explanation for why he went to the farm then?
VG: Well, these are things that they’re supposed to be doing as senior police officers, and that is what is actually of grave concern beyond this case, that if police officers and the courts treat this as a valid exercise of power, that you can hold people in centres which are meant for I don’t know what –
SV: But is Pandey acknowledging that, that she was already being held?
SV: So how can he acknowledge that she was already being held and then say that she was killed in a genuine encounter?
VG: There is a clear contradiction. That’s why you can’t lean upon the crime branch, original FIR and CBI chargesheet, and try to marry the two together. It doesn’t work, but that’s what the court does. And that’s why the court eventually holds that you know, Gujarat is under threat. So that’s what police officers should be doing and moves away and departs from the law altogether.
SV: This point that you make about how the high court refused a quashing petition earlier, again echoes of Sohrabuddin in a way, where many of the Sohrabuddin accused repeatedly sought bail, some of them even may have moved quashing petitions which the high court refused on every occasion, even when bail was granted. We have Justice Thipsay, who went on the record to say that look, we granted bail, but we said this does not mean there is not a strong case against the accused. Very similar to this case.
VG: I think that is a part of grave concern. We’re seeing what has happened in the Sohrabuddin case and as we speak, there is a matter of judge Loya’s death, which is shrouded in suspicion. At the same time we see that in the other fake encounter, there is an order which to my mind actually gives, sets aside the entire CBI chargesheet and opens the door for all the accused to be let off on grounds that are not available on facts, not in evidence, not in law.
And what is the signal that is coming out? And in P.P. Pandey’s case, it’s very interesting. He had moved for bill everywhere. Supreme Court, high court; he was declared a proclaimed offender. Eventually, he surrendered with his wheelchair being pushed by a man in a skullcap. And then he moved for quashing, which was denied. The Gujarat government – while he is facing a trial for quadruple murder – reinstated him as DGP.
It was only on the petition of Julio Ribeiro where the high court did not allow but the Supreme Court asked the Gujarat state to immediately remove him otherwise they’ll have to take action. So what we’re seeing is that the Gujarat state – in spite of the CBI and another material being available on record – is actually in multiple ways saying that these men need to be awarded and rewarded for what has happened. And it can’t be forgotten for a moment that who are going to be witnesses in this case, they will have to be subordinate police officers. When people are held in illegal detention, when encounters are staged, the only people who know the story,are going to be subordinate police officers. So here is another echo that worries me from Sohrabuddin case, where we see witness after witness turning hostile. How can we even think that these witnesses will go into the witness box and speak fearlessly and say what they’ve said before the magistrate, when they know that the government and the state is clearly supporting the accused. What lies ahead, what will be the fate of a case like this?
SV: In the Ishrat Jahan’s case, the first glimmer we got of justice perhaps being done was when the magistrate S.P. Tamang concluded that this was a fake encounter in 2009.
That was then appealed and it was overruled. Because he overstepped his boundaries.
VG: The Supreme Court actually then passed strong strictures against the Gujarat single judge who stayed the report. And when we had moved the Supreme Court saying that the report cannot be stayed and no inquiry can be conducted, that is when the Supreme Court actually said this matter should be heard by a division bench and that’s how the SIT was set up which was monitored by the Gujarat high court.
SV: Well, if you look at the role of the CBI, I mean the, the stand of the BJP today would be that, you know, these are all fabricated cases that the CBI was acting under the direction of the government of the day. So naturally it would want to file charges that are going to embarrass Narendra Modi, Amit Shah, the Gujarat police and the Gujarat administration as a whole. That’s the line they’ve taken on Sohrabuddin, that’s the lines they have taken on Ishrat Jahan. Given what we know about the CBI, that it is indeed a caged parrot. And we see it today under this government where the CBI essentially acts largely as a handmaiden of the executive, of the government. How would you counter this argument that the Ishrat Jahan chargesheet itself and the entire work of the CBI was not done at the behest of the Manmohan Singh government?
VG: Well, you see before the CBI stepped into it, there was an SIT, before that there was magistrate Tamang who has nothing to do with CBI. Then you have an SIT of three officers, two from Gujarat and one from the Union, and those officers did change, monitored directly by the division bench of the Gujarat high court, which concluded it was a fake encounter, but who did it, how it was done? That part was left to the CBI to investigate.
SV: So before the CBI comes in, magistrate Tamang, and then the SIT – acting under the direct supervision of the division bench of the high court, the Gujarat high court – concludes that this is a fake account.
VG: In fact, it’s interesting if one was to make two parallel charts of what happened to the fate of and the future prospects of the accused, and those who have investigated or decided these cases, you would recall Justice Jayant Patel, who recently put in his resignation on not being elevated as chief justice although it was his turn anywhere in the country. He was kept at the level of an acting chief justice. He was the senior judge in the division bench who decided that the matter needs to go to the CBI. And you have a whole array of all the police officers who were then given punishment posting and to the contrary you have the accused who were being promoted and given other postings.
In this case, the CBI, in fact, my charge against the CBI would be that there are statements under section 164 recorded before the magistrate, which clearly say to you that this is not being done by Vanzara and Amin and others, just a controversy between them, but they have got a political nod for this and they use the famous phrase ‘safed dadhi and kali dadhi’. CBI stops, CBI doesn’t take that chain forward. If the CBI was acting at the behest of a particular government, why did the CBI not carry forward this investigation? That is the charge that I would make against the CBI. So what we do have is actually a competency hatch between the IB and the Gujarat police for a political motive. Now a political motive would therefore have a political master. And that’s what the original fake FIR tells us. The CBI stopped short and it stopped short in February 2014.
SV: Well before the elections, well before the change of government. Because they saw the writing on the wall. Exactly. Now, where do things go from here now? I mean, the CBI so far, even under the current dispensation, has been committed to opposing the discharge and I presume the CBI would want to appeal this order.
VG: Well, I can’t speak for the CBI, but in a fair world they should file a revision against this order, as would I, on behalf of Shamima Kausar, we would file.
SV: So she is committed to seeking revisions on this?
VG: Yes, I have got instructions from my client. In fact, when I informed her of this, her question to me was, ‘What are we going to do next?’ And she’s very clear that she will take the case forward. So we will be filing a revision before the Gujarat high court and we do hope that on law and evidence, the trial will be held against all the accused.
SV: And the CBI may or may not join, is it sufficient for the appeal to be heard that Shamima Kausar herself wants this matter to be reviewed?
VG: Yes. I mean the CBI will have to answer difficult questions, but in law that doesn’t matter.
SV: Okay, right. And, in terms of, you know, parallels with Sohrabuddin, we saw the CBI refusing to appeal the discharge of say Amit Shah, or several of the senior police officers, Rubabuddin, who is Sohrabuddin’s brother, initially moved the high court and then backed off in the case of Amit Shah.
VG: And now has gone back to court.
SV: Correct. But as the relative of the deceased person, both he and in this case, Shamima, have locus standi to pursue this matter.
VG: Absolutely, the law allows for that.
SV: And so what kind of timeframe are we looking at for you to file this appeal and for this matter to be heard?
VG: Well, we will file it within a month or so. But really let us see how, when the court decides, what would be interesting to watch is that would this disorder now be the basis for the floodgates to open for all the accused to be stumbling out?
SV: I noticed in this judgment he actually uses the phrase, the judge says that there was no fake encounter.
VG: Yes, so if that’s the conclusion he’s come to, then why would it be confined to the benefit of P.P. Pandey? And I think the timing, the political timing and you know, that’s what the charge that has always been made. I just want to remind everybody here that the writ petition by Shamima Kausar was filed in August of 2004, within two months of the fake encounter and murder of her daughter, and it has nothing to do with any political party. The fact that her matter comes up for hearing or a chargesheet gets filed, similarly one can ask that, you know, in 2018 where we’re hearing murmurs of maybe another general election in end of the year, early 2019, all the Gujarat policemen are to be discharged rapidly, does that have anything to do with the political developments?
SV: On that note, we will leave it there. Thank you very much. You’ve explained the ins and outs of this case very well. Thirteen-and-a-half years after Ishrat Jahan was gunned down in what the police claimed was an encounter and what her mother maintain was an extra judicial murder, justice still seems some distance away. When we first heard the news of P.P. Pandey being discharged, one got a sense that Ishrat Jahan case is also likely to go the Sohrabuddin way. After listening to Vrinda Grover and looking at the judgment itself and the way in which the learned judge has framed his discharge order, it seems as if the door has indeed been opened for pretty much all the accused to now move the court and ask to be discharged in similar fashion. This matter will be appealed in the high court and one hopes that, eventually, for the sake of the family and for the sake of the constitution and the rule of law in India, that justice is done and done speedily. Thank you very much for watching.