: Gujarat Police As Investigator, Prosecutor And Judge
By Mukundan C
15 July , 2004
after three weeks of making all that orchestrated loud claims, charges
and accusations against the four alleged Lashkar terrorists killed in
the June 15 encounter at Ahmedabad outskirts, the Detection of Crime
Bureau (DCB) of Gujarat is faced with two embarrassing questions: One,
why and how its carefully scripted encounter story failed to act as
a best-seller among the general public? And, two, how to convince the
Union government that two of the corpses, which still remain unclaimed
and unidentified in the city civil hospital mortuary, are indeed of
To their dismay,
the Modi police also found that except the devout Sangh Parivarites,
the general public are not prepared to swallow their encounter story
for numerous reasons : For one, this is not the first encounter killing
of the so-called Lashkarites who came to Ahmedabad with the alleged
intention of killing Modi, Togadia, Advani, et al. Like the present
one, all earlier encounters also left numerous unanswered questions
on the claims and allegations made by Modi police. Most importantly,
the June 15 encounter came close on the heels of Vajpayee openly demanding
for the first time Modi's ouster from chief ministership and, sure enough,
after RSS sudden interference, the so-called Lashkar targeted Modi was
favored by the Mumbai meet of BJP two days after the encounter. The
also failed to present any independent witness who saw Mumbra college
girl, Ishrat, and Kerala-born Javed with the two unidentified dead persons
when they were alive anywhere in India to establish a firm connection
among them. All that the DCB had done was connecting four dead bodies
alleging that they belonged to Lashkar outfit out to kill Modi - and
without a single substantial evidence or proof or witness in support
of this charge.
All police personnel
in India, of course, wanted everybody to unquestioningly believe whatever
they say. This is especially true with Gujarat's Modi police. However,
too much has come out of Gujarat ever since Modi occupied power in 2001,
with too little worthy facts to rely upon. What is vitally at stake
is sheer credibility of Gujarat police, if not its total and absolute
That is the reason
why retired Justice Hosbet Suresh and President of Lok Raj Sangathan
refused to comply with the June 15 encounter story as well as questioned
it. According to him, "the question is not about the terrorist
links of Ishrat, Javed and others are alleged to have had, but is how,
why and under what authority the police killed them". Unfortunately,
the media debate is confined to the former question and not the latter,
Justice Suresh said and added : "Assuming that they had terrorist
links, what did they do? Did they take part in overt or covert acts?
Question arises whether mere terrorist links, without any act of commission
or omission, is sufficient to kill any person?"
He also raised several
other vital questions: "What were the police doing? Was it an investigation?
If so, who lodged the FIR and when? What does it say? If it was not
an investigation, what was it? Was it any dispersal or any unlawful
assembly? Obviously, there was no unlawful assembly. Was it a preventive
action of the police within the meaning of Section 149 of Criminal Procedure
Code? If so, what information they had of these persons committing a
cognizable offence? When did they get the information? And what information?
Was there any information that at the place where they were killed,
they would commit a cognizable offence? Could the police not have prevented
the commission of cognizable offence, without killing them?"
Justice Suresh ascertains
that "there is no provision either in the Constitution or in the
Criminal Procedure Code, giving any right to the police to kill".
However, according to him, the only provision that gives any person,
including the police, the right to kill is under Section 100 Indian
Penal Code, which is as a matter of private defense. "But, then,
a Sessions Court has to decide that the killing was justified. All other
killing, prima-facie, is murder under Section 302 IPC. It is for the
accused to plead that he killed as a matter of private defense, or else
the killed person would have killed the accused or would have caused
injury. The Court, and not the police, would decide whether killing
was justified or not"..
Pointing out that
in the case of an unlawful assembly and dispersing a crowd, the police
may have to use armed forces, which may result in death or injury to
several persons, Justice Suresh added: "Even in that event, there
are provisions of Section 130 to 132 of CrPC for an enquiry by Executive
Magistrate. However, this does not arise in the present case June 15
encounter, as there was no question dispersal of unlawful assembly".
According to Justice
Suresh, the legal position is clear: "The Police cannot justify
killing under any provision of Law. On the other hand, the police who
killed these persons in the June 15 encounter are patently liable to
be charged for murder under Section 302 of IPC."
Justice Suresh also
pointed out that it is mostly the police who select a spot and time
for encounter killings. "Generally, there is no witness. No policeman
is hurt. After the killing, it is only the police version. They kill,
they decide, and they justify. The police thus become the investigator,
the prosecutor and the Judge!"
More than anything
else, this dangerous phenomenon of the police dolling the all-in-one
role of investigator-prosecutor-judge under the present system of Constitutional
Rule of Law was more than exemplified by the actions and events that
followed the post-June 15 encounter killings. The Gujarat police wanted
the Central Government to make the Pakistan diplomatic mission to accept
the two dead bodies. The new UPA dispensation at Delhi, however, insisted
them to furnish full proof and evidence to establish the dead persons
identity as Pakistan nationals before taking-up the issue with Pakistan.
The Gujarat police drew blank. Without establishing the Pakistani national
identity of the two the Gujarat police cannot link them with Lashkar.
It was also a pre-requisite to connect the already identified
Indian victims, Ishrat and Javed, with the Pakistani terror outfit.
the one-and-half hour live telecast programme on the encounter killing
in Asianet TV on July 3, Ahmedabad City Addl. Police Commissioner (Crime),
Mr. D. G. Vanzara was grilled on this question. He tried to excuse himself
under the plea that "investigation has to be held in Pakistan to
establish the Pakistani identity of the two".
On the same day,
Vanzara told presspersons at Ahmedabad that "that there is no iota
of doubt" that Ishrat was actively involved in the conspiracy to
assassinate Modi: "Our probe has made it clear that Ishrat, her
mother Shamima and Javed were in close contact since long time. Both
had visited Lucknow and Faizabad and visited Ahmedabad and Gandhinagar
twice." Also reported that day was the Gujarat police seriously
considering of arresting Shamima.
According to Shamima,
her killed daughter Ishrat was sustaining the large family by taking
tuition after her father died two years ago. Income from tuitions stopped
due to closure of educational institutions for summer vacation, which
forced her to accept the job as an account assistant in Javed's business.
Started in May, it also involved her going to places with Javed a couple
of time. Neighbors also vouch that Shamima's family is so poor that
they still owed seven-months' rent dues at the time of Ishrat's killing
- something which can hardly co-exist had she been a Lashkar operative
for long as the Ahmedabad DCB allege.
In fact the Gujarat
police fed the newspapers several such stories about those killed. However,
it only exposed their role of searching in the dark for evidence against
the victims after they were gunned down. For example, it was alleged
that several CDs were "seized" from Javed's Pune residence,
including one on Gujarat riots. Javed's widow, Sajitha, however, said
in the Asianet programme that these CDs were mostly of films, especially
starring Malalayalam actor, Mammootty, whom Javed liked most. Originally
named Pranesh Kumar Pillay, Javed's conversion into Islam as well as
his working in Gulf for a few years were all projected with a tinge
of suspicion so as to link him with Lashkar terrorists. This despite,
Javed's father Gopinathan Pillai repeatedly ascertaining that his son
into Islam while working in Pune almost ten years ago to "marry
Sajitha and not to join any terrorist group".
In a petition submitted
to Kerala Chief Minister A. K. Antony on June 26, Gopinathan Pillai
said : "Gujarat police claims that my son and other murdered persons
belong to a terrorist group. This allegation is raised without any foundation
or any credible investigations. I have the bona-fide impression that
it was a trap shooting done by the Gujarat police for some ulterior
motives. My son is a law-abiding citizen who have not involved in any
criminal activity. Not satisfied with murder my son's murder, the Gujarat
policies frequently harassing my daughter-in-law under the guise of
investigation. Police is compelling my daughter-in-law to give statement
as dictated by them and also they are propagating false information
and allegations through media as if told by my daughter-in-law."
to Sajitha, mother of three infants, the police forcibly evicted her
from her Pune residence before taking possession of the same for no
valid reasons. Sheltered by her relatives at Pune, she moved the Court
to get back possession of the house.
In other words,
this post-encounter newspaper trial by the police also gave credence
to the overall belief that the DCB had no evidence against the victims
when they were alive. Although the Gujarat police claimed that the victims
were under their surveillance for long, they failed to give a convincing
answer as to why they did not arrest them prior to the June 15 shoot-out.
social and human right activists of Gujarat, like Advocates Girish Patel
and Mukul Sinha, are moving ahead with a Public Interest Litigation
in the Supreme Court pleading a CBI inquiry into the June 15 encounter.
Supported by NGOs like Lok Adhikar Manch, the petitioners plan to focus
whether the four killed persons were dangerous terrorists out to kill
Modi, and whether the encounter was genuine?
Rediff News quoted
the social thinker and writer, Achyut Yagnik, opining that the society
should not tolerate such encounters. "Because today some terrorists
have been killed, tomorrow it could be civilians' turn if they are perceived
as criminals or a threat to the police. The existence of such infrastructure
Kureshi, the leading lawyer holding the brief for more than 55 POTA
accused in Gujarat and who support the PIL, said: "Gujarat police
is excellent in writing filmy scripts. And like filmy writers, they
make mistakes too. We are probing into the identities of the Pakistani
terrorists who have been allegedly killed in the encounter."
According to Kureshi,
like several other encounters, the June 15 encounter also did not follow
the rulebook. "The accused were not shot in lower parts of their
bodies," he pointed out as an example. Terming the police claim
of having recovered a diary from the terrorists detailing their plans
as "suspicious", he says : "No sane person would keep
a diary of his/her movement and the intentions to kill prominent persons.
Before her murder, Ishrat must have been forced to write the diary in
the presence of Gujarat police. Like four previous encounters in the
city, all the alleged terrorists in the June 15 encounter were wearing
cheap bathroom slippers. These similarities will be brought before the
Pointing out another
"obvious flaw in the police theory", Kureshi asked why would
Javed use a car registered in his brother-in-law's name if he was on
a mission to kill Modi as claimed by cops. "It takes just two hours
to arrange for a stolen car. Why would he use his relative's car,"
According to Kureshi,
Gujarat police's another "ridiculous" claim is that they were
following the terrorists in their official vehicle long before the terrorists
reached near Ahmedabad, where they were shot down : "It's impossible
to believe that the 'terrorists' could not see and recognize a police
car following them," Kureshi commented.
Within three days
after the June 15 encounter, the National Human Rights Commission (NHRC)
acting suo-motto upon newspaper reports, sought a detailed report on
it from the Gujarat Police. It is to be recalled that after the Delhi
police gunned down two businessmen at Connaught Place shoot out on March
31, 1997, mistaking them as gangster Mohammed Yaseen and his associate,
the NHRC issued the following guideline to all state governments:
* All encounters
should be probed properly and without bias.
* Any death caused
in an encounter with any local police force or para military force in
peace area would amount to culpable homicide unless it is established
that the action was taken in self defense.
* The probe report
has to be submitted to the Commission within six weeks.
should be independent, cops involved in encounter should be kept out.
The NHRC guidelines
hold good for the June 15 Ahmedabad encounter as well. In fact, all
the post-Godhra 2002 encounters in Gujarat have a set pattern and striking
similarities. At least seven inspectors of DCB made their presence as
common participants in all the four encounters in Ahmedabad. These encounters
took place in the wee hours. As there was no independent witness for
any of the shoot-out, only police versions were available. In at least
two instances, the victims were under custody in jail or police station,
from where they were taken out in wee hours to the spot where the encounters
supposedly took place. In all such encounters, the police claimed that
the victims were killed in "retaliatory fire opened by them in
self-defense". Although it was alleged that the killed "terrorists"
used sophisticated weapons, as in June 15 encounter, none of the police
officer was injured in all such incidents. And, the post-encounter allegation
by police consistently maintained that all the culprit-victims were
Lashkar activists with a mission of deep conspiracy to liquidate Narendra
Modi. Details of formal post-mortem or forensic examination held on
the dead bodies were not disclosed in all such cases.
Yet, Modi police
wanted all of us to blindly believe their version - for the sake of
his safety and, of course, to protect our national security under threat
from dreaded Pakistani terror outfits like Lashkar!
Human Rights Organizations
3, Rams' Cottage