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Encounter Truth : Gujarat Police As Investigator, Prosecutor And Judge

By Mukundan C Menon

15 July , 2004
Indian Currents

Even 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 Pakistani nationals?

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 Modi police
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 erosion.

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.

Participating in 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 had converted
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." According
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.

Meanwhile, prominent 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 is dangerous."

Advocate Hashim 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 court."

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," Kureshi asked.

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.

* Investigation 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!

Confederation of Human Rights Organizations
3, Rams' Cottage
Ambalathumukku, Pettah
Thiruvananthapuram-695 024
(Ph.: 0471-2476262)