Ishrat Jahan case: High court lawyer dissects CBI's chargesheet

By NS Nappinai

Disclaimer: "This article is intended only as a case study on general legal concepts of human rights; criminal justice delivery systems and the checks and balances in Law and is not an opinion on the case and the author has not and does not intend to either support the case of the prosecution or of the Accused, as the matter is sub—judice."

Speculation has fuelled discussions and debates galore in the Ishrat Jahan case. Social gatherings and "addas" have witnessed heated discussions on issues ranging from human rights to dysfunctional justice delivery systems and to rise in vigilante justice and its new twist – "encounters" or "extra judicial killings". Now the final report (i.e., the "chargesheet") filed by the CBI on 7 July 2013 along with the documents and statements of witnesses has been made available to the public (probably in a first of its kind exercise) through Firstpost, giving the opportunity to one and all to distinguish speculation from preliminary facts, statements and details culled out through investigations and inquiries.

Facts in brief
On 15 June 2004, Ahmedabad City Crime Branch registered a FIR for various offences including under Indian Penal Code, Arms Act, Foreigners Act, Prevention of Terrorism Act (Pota), Bombay Police Act against three men and one girl, killed in a purported encounter on the same date. On 8 June 2006, the final report is filed in the above FIR, inter alia concluding that the encounter was genuine. The special judge, Pota court, did not accept this report and directed fresh inquiry by order dated 07 July 2006. A magisterial inquiry and filing of several petitions before the Gujarat High Court and the Supreme Court finally led to the registration of a FIR against JG Parmar and 19 other police officers on 16 December 2011, for offences of murder, kidnapping, causing disappearance of evidence, wrongful confinement, giving false information respecting offence committed and for certain illegal actions by public servants for saving a person from legal punishment and for offences under the Arms Act.

 Ishrat Jahan case: High court lawyer dissects CBIs chargesheet

Ishrat Jahan. Image courtesy CNN-IBN

Chargesheet dissected

The statements of witnesses recorded and annexed to the chargesheet (i.e., the copy uploaded by Firstpost) may be grouped as under:

— Witnesses speaking to background of Deceased (i.e., four persons killed in the purported encounter) like relatives of some of the deceased; friends or acquaintances;
• Panchnama witnesses – i.e., witnesses for various seizures made during investigation;
— Eye witnesses to the:
• Shooting incident;
• Purported abduction of the four deceased;
• Incidents prior to the shooting i.e., procuring arms and ammunition; production of the deceased at the place of incident;
— Witnesses to various Circumstances (circumstantial evidence):
• Purchase of the blue Indica car & its use by some of the deceased;
• Places visited and hotels stayed in by some of the deceased;
• Connections and links between all four deceased including having been seen together and with respect to some purported actions undertaken prior to the shooting incident;
• Circumstances surrounding the abduction including at Vasad toll plaza and retention of the deceased in various locations / “safe houses” including at Arham Farm and their production at the scene of the shooting incident at Kotarpur Water Works;
• Expert witness - forensic expert’s evidence
• Expert witnesses - statements of Forensic Science Laboratory;
— Evidence of several police personnel involved at purported preparatory stages for the shooting incident;

Witnesses’ statements recorded by the police during investigation do not amount to evidence. It is only the statements given before a court during trial, which have withstood the test of cross-examination that may be relied upon for a decision in a case. Whilst the statements recorded during investigation do not amount to evidence, they can and will be used for contradicting or corroborating such witness during trial in court. Hence the true test of admissibility and importance of the statements of the prosecution witnesses would be evident only after completion of trial.

In the above case, the prosecution would have to establish not only the facts and details through incontrovertible proof but would also have to explain delays in reporting, omissions, inconsistencies and contradictions, if any in statements, and prove its case beyond reasonable doubt against the accused. The court is not bound to reject their evidence only on the basis of contradictions or corroborations but each such instance as well as demeanor of witnesses and if the defense were able to prove the same, motive or mala fide intent if any, for belatedly implicating the accused would all play a crucial role in deciding the outcome of the case. Law does not place such a heavy burden on the defence as that of the prosecution. It is sufficient for the defence to demonstrate by preponderance of probability that the prosecution case was not sustainable. The golden thread of jurisprudence has and continues to dictate that the accused are innocent till proven guilty.

Further statements of witnesses who do not have personal knowledge of events i.e., narration of events, which were purportedly based on inputs from colleagues etc., are hearsay and would be inadmissible. Such statements will therefore stand rejected even at the threshold. Law however does not require quantitative proof of guilt. Hence evidence of even one or a handful of witnesses which stand the test of cross - examination, would be sufficient to prove the case.

Similarly statements of Panchnama witnesses are very crucial for a decision on this case. Family members, acquaintances and other witnesses appear to have been inquired to establish whether the deceased were in fact terrorists and/or their connection with each other. While this circumstance is a crucial link in the chain of circumstances, from the defence perspective, the same will not materially affect the outcome of the case. It is trite that the character or profile of the deceased cannot justify commission of offences against them i.e., extra judicial killings, cannot be permitted or sustained on the basis that the deceased were terrorists.

Legalities

India has a robust legal system. The law - including our constitutional mandate and its interpretation by the Supreme Court, clearly stipulates that no person shall be deprived of his life and liberty, save and except by due process of law (Maneka Gandhi, 1979). Article 21 has been interpreted extensively to encompass the rights to life, liberty, dignity and privacy, (just to name a few) of all persons including prisoners and under – trials. Checks and balances for ensuring compliance with such high standards of rule of law have been set out in the Indian constitution and its Criminal Procedure Code, 1973 (CrPC).

In particular the Constitution sets out stringent provisions for arrest (i.e., furnishing complete details of such arrest and purpose to relatives of the accused) and remand to judicial custody within 24 hours (Article 22 (1) & (2)) have been mandated to ensure judicial check over the executive police action during investigation of offences and any violations thereof including of possible illegal detentions and use of force or torture. Chapter XII of CrPC deals with procedures for investigation of offences and reporting processes to concerned magistrates including where apprehended accused cannot be remanded within 24 hours and for recording of statements of witnesses and confessions from accused magistrate. The Supreme Court has time and again emphasised importance of adherence to these mandates including in Joginder Kumar (1994) & DK Basu’s Case (1997). The Indian Evidence Act, 1872, ("Evidence Act") sets out the process for proving facts and circumstances. Here again checks and balances are provided including of inadmissibility of confessions to police (S.25 & 26). A just balance has therefore been stuck between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court (Amitbhai Anilchandra Shah Vs. CBI, SC, 2013).

Law is however only as effective as its implementation. Checks and balances on absolute power are effective only when implemented. The judiciary has played an important role in reigning in misuse or abuse of power, especially in recent times when public outcry has brought such abuses to the fore including in the recently concluded trial of the Lakhan Bhaiyya case (Ram Narayan Gupta (2013)). However law does work at its own pace. It is oft quoted that justice delayed is indeed justice denied and speedy justice has been interpreted to be an inherent component of the right to life and liberty enshrined in Article 21 of the Constitution (Hussainara Khatoon, Supreme Court (1979)). Yet, solutions are still only mirages in the horizon. The above is a case in point. Initiation of prosecution against the Accused has taken about nine years and no telling how long the trial would proceed.

It is ironic that all of the above legal concepts would apply pari passu to both the deceased and the accused i.e., that presumption of innocence of an accused is one of the cardinal principles of rule of law in a free democratic country (Anukul Chandra Pradhan Vs. UOI (1996)). Ironic again that one of the oft - quoted reasons for extra judicial actions (including killings) is the very same reason of delays in the justice delivery process. Enforcers turning into vigilantes only spells doom for the justice delivery mechanism and is a travesty of democratic principles. Rights of society to protect itself has to be balanced out with individual’s rights to life, liberty, privacy, dignity etc. Strict adherence to rule of law cannot be emphasised enough as relaxation of stringent norms in perceived instances of threats to Society or individuals would dilute restraints put in place for protection of the very same society and/or individuals.

As quoted by the Supreme Court in the Bhagalpur blinding case (Anil Yadav Vs. State of Bihar (1982)), Truth has a strange habit of revealing itself and in the above case also, it is now left to the Courts to cull out the truth, which it has done in many instances. It would be premature and unfair for any presumptions to be raised either for or against the accused at this juncture, as the thin line delineating "information" from "trial" may be crossed (Jessica Lal case, (SC) (2010)).

The author is an Advocate at the Bombay High Court.

Disclaimer: "This article is intended only as a case study on general legal concepts of human rights; criminal justice delivery systems and the checks and balances in Law and is not an opinion on the case and the author has not and does not intend to either support the case of the prosecution or of the Accused, as the matter is sub—judice."

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Updated Date: Jul 23, 2013 22:37:03 IST