From "prima facie" case to "acquittal" of Vanzara, Amin

On August 7, 2018, the special CBI court had rejected discharge pleas of ex-policemen D G Vanzara and N K Amin who had sought relief on the ground of parity with ex DGP P P Pandey in Ishrat Jahan encounter case. Pandey was the first one to have been let off by the court on various grounds including the absence of section 197 of the code of criminal procedure that mandates prior sanction for prosecuting government servants.

The special court had held, "The accused No.3 Vanzara has asked that on the ground of parity, he may also be discharged under section 227 of the Cr.P.C. as the allegations against him are similar to the allegations made against Pandey. But...Looking to the statements of a police constable, police sub-inspector and police inspector, it prima facie appears that prima facie the role of accused No.3 is clear and greater than accused No.2 P.P. Pandey. Moreover, it is clear that accused No.5 – N.K. Amin had intercepted and apprehended Ishrat and Javed from Vasad Tollbooth on 12/06/2014 (sic) and during the encounter, he was present at the scene of the incident. Therefore, both the discharge applications filed by accused No.3 and 5 are required to be rejected."

Nearly eight months later on May 2, the same court "discharged" them. The 67-page judgment incorrectly begins with a prayer of Amin and Vanzara that they filed "discharge application u/s (under section) 227 r/w (read with) 197 of the CrPC." But, the fact is they had sought dropping of the case against them under section 197 of CrPC. The court had already dealt with 227 of CrPC.

The special judge J K Pandya, whose transfer order was issued a day before he was to pronounce the judgment, wrote in the order, "The present discharge applications...filed by D.G. Vanzara and N.K. Amin are hereby allowed and they are discharged from the offences..." Legally, discharge is defined under section 227 of CrPC, while the case of the two cops was under 197 of CrPC.

In August 2018 order, the court had asked CBI to clarify its stand whether it wants to seek sanction from the state government or not. CBI despite maintaining that there was no need for it, it approached the Gujarat government for the same. Gujarat government denied the sanction and the CBI didn't object to it in the court, instead, it told the court to "decide the case in accordance with the law." The court has held in the court that since CBI sought sanction in the case four accused officers from Intelligence Bureau, " it is presumed that the CBI believed the alleged act of the applicants accused is covered under the discharge of official duty." However, the court has not opined about the position of law on this issue.

Another aspect of the judgment is a full paragraph that contradicts facts of the case. It mentions " It has been a common case of the Central Government, Government of Gujarat and Police Agencies of other States on affidavit before the High Court of Gujarat that all 4 persons allegedly killed in fake counter namely 1. Zeeshan Johar @ Jaanbaaz @ Abdul Ghani, resident o Gujranwale, Pakistan 2. Amjad Ali Akbar Ali @ Rana @ Salim @ Chandu @ Babbar @ Raj Kumar, resident of Sangoda, Pakistan 3. Javed Gulam Mohd. Shaikh @ Praneshkumar Pillai, resident of Pune, Maharashtra 4. Ishrat Jahan, a resident of Bombay."

It has never been a "common case" of central, state governments and police agencies of other states that they were killed in "fake" encounter. As a matter of fact, the central government initially claimed that the four were killed in police encounter but later it changed its stand. Gujarat government never accepted that it was a fake encounter.

The order goes on to say that "Out of 4 persons, 2 were admittedly Pakistani nationals having entered into Indian territory illegally and were Lashkar-e-Taiba (LET) operatives and they had entered the State of Gujarat with a view to carry out a massive terrorist operation including assassination of some important leaders as a module of terrorist operation of LeT. In the petitions filed by relatives of the above named Javed Gulam Shaikh and Ishrat Jahan, the Central Government was joined as a party respondent which through the Home Ministry of the Union of India, filed a detailed affidavit in terms pointing out that a. The Central I.B. had specific inputs about the movement of the aforesaid 4 persons which was communicated to Gujarat Police. b. There were specific inputs on record of Central IB clearly showing that the LeT, through the aforesaid 4 persons, had planned a massive terrorist act in Gujarat, and c. Ishrat Jahan was also a LeT operative (which became evident from the interrogation of David Headly of United States of America’s FBI that she was a suicide bomber) along with other three persons."

This paragraph was not argued by any of the parties during the proceedings. No party submitted it in the court orally or in writing. Similarly, paragraph 17 of the order has also been reproduced from the court's previous order dated August 7, 2018, when it had rejected discharge pleas of Vanzara and Amin.

In this paragraph, the court has said that "R.R. Verma who fled the complaint has received certain information regarding illegal/ anti-social and terrorist activities of 4 deceased persons, which is already described earlier as well as in Para 5.5 of the complaint. Therefore, it is established that information received by Gujarat Police was based on sound, solid and correct information..."

R R Verma, an ex IPS officer, was chairman of Gujarat High Court appointed-Special Investigation Team (SIT) which probed the first and established Ishrat and three others were killed in cold blood. The high court then handed CBI to probe it further. Verma, on the instruction of the high court, filed FIR against 20 policemen involved in the encounter.

It mentions "It is further pertinent to note that after 6.12.1992, there were a number of bomb blasting (sic) in the area of Ahmedabad, Surat, Godhra, Mumbai and other parts of India. It is also pertinent to note that there was a serious terrorist attack on the Swaminarayan Temple (Akshardham) at Gandhinagar (Gujarat). There were a number of bomb blasts in the area of Ahmedabad, as stated above. Therefore, the concerned police officers of Ahmedabad who were doing and discharging their official duties were bound to keep watch and supervision on all these activities. A number of anti-national and terrorist activates were spread all over India, more particularly in Gujarat State." This too was not argued in the court.

Some observations by the court hold CBI responsible for not taking up the case properly. It says that neither CBI nor mother of victim Shamima Kauser challenged its order that discharged PP Pandey and thus, "the observations of the court has been accepted by the CBI as well as the mother of the victim. Had any of them not accepted the observations of this Court, it would have challenged the earlier order of the court. But as both of them have not challenged the order as well as the observations, the court is bound to proceed further in accordance with the law."

Four more accused to seek discharge

Retired DGP P P Pandey was the first accused to have been discharged from the case. With Vanzara and Amin too dropped from the case, four policemen are left as an accused that includes Inspector General of Police G L Singhal, retired Assistant Commissioner police Tarun Barot, J G Parmar and police sub-inspector Anaju Chaudhary. Sources said that they are going to file discharge in two weeks.

Status of accused from IB

The case also involves four accused officers from Intelligence Bureau including ex special director Rajinder Kumar, Tushar Mittal, Rajiv Wankhede and Mukul Sinha. A supplementary chargesheet against them alleges that they were involved in conspiracy, abduction among other charges. Their case remains pending with the magisterial court of CBI in Ahmedabad.