(Reproduced under Permission from LFM)
Report Prepared under Instruction of People Grievance Cell for promoting public interest.
PRELIMINARY:
The newspapers and the media are flooded now days in Gujarat with the issue of Gujarat’s Home Minister involvement in the fake encounter case of Sohrabuddin Sheikh. Some more influential than Ex-Home Minister are now fearing that they may also get involved.
BJP says Congress is behind all this. Congress defends itself by saying that Supreme Court Ordered CBI investigation. A common question that occurs is – Why CBI when we have such competent local police Force. Why should SC pass such an Order? Why has CBI called Geetha Johri in this month? What is it that she can tell CBI? What was her investigation in the matter? The Supreme Court has itself clarified the reasons why it has reached to conclusion for CBI inquiry.
One thing is clear that we live in a world having rule of law (kayda nu shashan). This rule of law is fairly impartial. Supreme court has directed CBI investigation and same Supreme Court had rejected demand for CBI investigation for three years in spite of repeated demands. Courts are governed not from hear-say but material on record. Just see, when so many people want Amit Shah to be taken on remand, the Court has rejected the application . On this people say that CBI has turned lax. Really - is it lax attitude or a strategic move ? Time will say.
The spate of incidences include a period from 21st January 2007 to 12th January 2010 before the Supreme Court and is now important in background of the fact that Geetha Johri is scheduled to appear before CBI and entire incidence may get new turns while OP Mathur has already been grilled.
Letter of Rubab and 6 months delay in appointment of Investigation
Supreme Court received a letter addressed to Chief Justice of India by Rubab in which he complained that his brother had been killed in a fake encounter by Gujarat Anti-Terrorist Squad and Rajasthan Special Task Force. The Supreme Court registry wrote a letter dtd. 21/01/07 to Gujarat DGP to take actions in the matter based on letter of Rubab. The Gujarat DGP took no actions in spite of the letter from the SC registry. Registry issued several reminders for six months. After six months, because of several reminders, DGP appointed Geetha Johri IG Police – Crime to investigate the matter. Upon this inquiry case no. 66/2007 was registered.
On 22/01/07 notice was issued to Central Government. On 19/03/07 a notice was issued to Gujarat Government in this matter. On 23/07/07, Additional Solicitor General had filed his report in sealed cover in Supreme Court. Gujarat State had filed interim report on 03/05/07 before Supreme Court. In all there were eight action taken report filed with the Supreme Court by the Gujarat Police. In the entire events, four reports of VL Solanki – PI working under Geetha Johri became important to Supreme Court.
Sudden change in police personnel:
When the matter was going on before the Supreme Court all of a sudden charge was taken away from Mr. Raigar and in his place Add. DGP OP Mathur was given charge of CID head. Same way Geetha Johri was also removed from investigation and in her place Mr. Rajnish Rai was installed. These events during pending case at Supreme Court caught attention of the court.
Rejection for CBI Investigation by SC during 2007 and therefore from 2007-10 investigation was done by State Police:
When we hear that Supreme Court (SC) has Ordered CBI investigation –we feel that the Court did this straight away. That is a wrong hypothesis. Right thing is that for three years, Supreme Court had not Ordered CBI investigation. Rather initially SC was of a clear opinion that CBI investigation was not needed in this case. It is not that State Police was not given a chance to investigate the matter. Rubab repeatedly requested SC for the CBI investigation. Same way supporting Rubab Attorney General also requested investigation by CBI. But SC stated that since State Investigation Agency was working in right direction, CBI investigation is not at all required. Not only that – Rubab also requested that Ms. Geetha Johri and Rai to include in investigation – but SC refused to do so about three years back. Rather SC stated that State Investigation Agency will investigate the matter and it shall not take DGP’s permission in the matter. DGP should also not interfere in the case. Supreme Court felt that this will be enough to carry out fair and transparent investigation.
What happened that Supreme Court changed it’s view?
Before knowing why did Supreme Court change it’s initial view that CBI investigation was not needed, it is necessary to understand in brief what was the case of Gujarat State / Police in the court.
Stand of Police / Gujarat State in Court:
On 12/05/07 Geetha Johri gave a report to SC in which she clearly expressed that there was uncertainty and discrepancy (tafawat) regarding the presence of Kauserbi at A’bad and Sorab at Hyderabad. Johri also stated that the identity of so called police who picked up Shorab, Kauserbi and “third” person was not found. Johri also stated that investigation is necessary for knowing what happened to Kauser after 22/11/05. On one hand when she was seeking permission to interrogate Tulsiram on other hand record showed that FIR dtd. 27/12/06 reported Tulsiram’s encounter.
Police also said SC that they were taking Forensic assistance. Narco test of Senior officers like Vanjara, Dinesh MN and Pandyan was sought and matter was pending with Session’s court. Police stated that they had examined 194 witnesses. AP officials had cooperated and had denied their involvement. The Metropolitan Magistrate had denied Narco test and matter was pending with Sessions Court. Forensic report stated that nothing incriminating (gunahit vastu) was found. Within prescribed period Charge-sheet will be filed. In the Seventh Action taken report – Police stated that out of three persons mentioned in Johri’s report, third person could be Kalammuddin – a police informer. Phone call analysis was put forth by police in the Supreme Court.
As per Eight action taken report, police asserted that phone call report analysis was made. High Court was approached for Narco Analysis case. All this was stated in various ATRs upto 15/10/8
Questions before Supreme Court:
1. Whether CBI Investigation should be directed after chargesheet has been submitted and trial started?
2. What were facts that lead court to direct CBI investigation?
3. Whether after 8 Action reports, it could be said that investigation was carried out properly?
Legal Question Answered by SC were hereunder:
1. Legally CBI investigation can be directed even after submitting charge-sheet in court and this was not first case. Hitherto in various crimes this had been done by Supreme Court and approach in this case was not new or first one. Supreme Court had stated that for instilling public confidence, confidence of victims and total justice CBI investigation was needed looking to facts of the case;
2. Normally view of SC is consistent in that when the accusation was against local police and high police officers CBI investigation being independent agency is needed;
3. Why only relative of deceased – even local public may come and ask for CBI investigation in such a case;
Whether investigation should be transferred to looking to facts of the case – the court answered on 12/01/2010:
1. The SC has gone through all eight action taken reports in the case;
2. The Eight action taken reports submitted by government had large & various discrepancies in comparison to investigation carried out by State Police and the Charge sheet filed by State Investigating Agency and that (virodhabhas) and it appears that investigation is not running in right direction.
3. On one hand charge-sheet stated that Shorab and two others were picked up by Gujarat Police Personnel and accompanied by 7 other AP policeman. But on other hand, charge-sheet did not reveal identity of police personnel of AP.
4. On one hand charge-sheet stated that Kauser was taken in one of the two tata Sumo Jeeps in which AP police personnel accompanied accused, but on other hand non of the AP police personnel were listed as Accused.
5. Charge-sheet states that third person was sent “somewhere”. But gujarati translation thereof would mean that he was “anyhow made to disappear”.
6. We are satisfied that attempts are made to mislead us;
7. The charge-sheet does not mention name of Dr. NK Amin (accused 12) who was mentioned in original charge-sheet;
8. ATR only say that Kauser was last seen in company of ATS on 26/11/2005 and cremated on 29/11/2005 but it is totally silent as to what happened in between that;
9. The mode of killing of Kauser was totally silent;
10. The Sessions judge had permitted narco analysis but the investigating authority of Gujarat have made false accuse of not conducting Narco Analysis by saying that the matter was pending with court – the Investigation only put forth excuses for not proceeding with Kauser’s death investigation;
11. Third person was identified as Kamalludin in the reports. That’s it – but it was totally silent as to what happened to him after that.
12. The possibility of third person being Tulsiram cannot be ruled out although all efforts were made by police to show that he was not third person;
13. Tulsiram’s death causes strong suspicion of elimination of human witness;
14. The phone records of three senior police officer were not analyzed properly in connection with death of Sorab and Tulsiram;
15. “Motive” – reasons behind crime are very important in investigation reports and it was not properly investigated. Name and fame and promotion cannot be motives in the case. Motive is very important when case is resting on circumstantial evidence – investigation is silent on this point;
16. On one hand in the Charge-sheet filed with Metropolitan Magistrate’s court 13 person were charge sheeted for criminal conspiracy. 13 were arrested. But NV Chauhan was mentioned in Action Taken report as “yet to be arrested”. Same way one Jadeja Police Constable – driver who was supposed to be arrested as per Action Taken Report did not appear amongst the name of accused persons who were arrested. Obviously, he had not been charge-sheeted. From these discrepancies, it is clear that the Gujarat Police has not carried out investigation in fair and impartial way as we initially wanted them to do.
So far as Geetha’s Johri’s investigation is concerned, SC state following:
1. Johri walked out of Tulsiram’s case even without informing court. Why? No justification is found;
2. Records show that VL Solanki was carrying out investigation in right manner, but Johri has not carried out investigation in right way.
3. Johri did not make reference to second report of Solanki. Though the first report was attached with one of her reports, it was not forwarded to the court.
4. Johri’s mentioned about criminal antecedents of Shorab and this was done with a view to obfuscate (dhundhlu) the inquiry.
5. Investigation is done outside the procedure of Cr.P.C. section 154-176.
6. No fresh FIR has been filed in spite of inquiry case no. 66 to make the same base for investigation and trial;
7. FIR dtd. 16/11/2005 could not for basis of real investigation since it was following a fabricated encounter.
8. Johri in her report herself conceded (admit) that ATS was not a regular police station where FIR should have been filed;
The CBI questions may rotate around above in forthcoming days. Political guys in Gandhinagar may be probed deeply looking to the facts above.
List of date and events for legal maneuver is hereunder:
DATE
EVENTS
21/01/2007
registry’s letter to gujarat state – gs
22/01/07
notice to central govt.
19/03/07
notice to guj. govt.
inquiry case no. 66/06
case registered by geetha johri
23/03/07
sc order saying :
report by add.soli.gen. taken on record in sealed cover.
guj. counsel says that they will submit report after collecting details and three week time was granted to them.
20/04/07
sc order allowing time to guj. state to make submissions on add.sol.gen. report
27/04/07 & 03/05/10
At the Supreme Court:
interim report submitted by KTS tulsi from side of gujarat government.
tulsi asked for more time to submit comprehensive report and action taken report no. 4 was filed after 03/05/07
attorney gen. objected to this request of tulsi and asked for cbi investigation
sc wanted to issues rule nisi to guj. state and cen. gov. why prayer should not be granted but tulsi told sc that the action taken report dtd. 30/04/07 stated that kauser’s body was disposed off by burning in village sabarkantha
observation made that geetha johri submitted interim reports but why she was withdrawn from investigation – sc directed gujarat to make submission also. Matter adjourned to 15th may 07
01/09/06-22/01/07
four interim reports for this period by VL Solanki, Police Inspector working under Geetha Johri.
12/05/07
Geetha Johri says in her report that (1). There was discrepancy (uncertainty) of facts regarding presence of Kauser and Sorab at Ahmedabad and Hyderab. (2). Who were person who claimed to be police who picked up Sorab, Kauser and third unknown person (Tulsiram?)
(3). What happened to Kauser after 22/11/2005?
(4). Permission to interrogate Tulsiram in Rajasthan Jail was asked by Johri.
14/05/07
Action taken report no. 4 submitted in Supreme Court. It said (para 9 order 170507)
Forensic assistance was asked to investigate exhibits from scene of offense;
Narco Analysis of Vanjara, Dinesh MN, Pandyan asked;
Matter adjourned to 28/05/07;
Remains of Kauser from well were sent for forensic investigation;
Investigation remained pending on following matters:
AP policeman who helped ATS Gujarat were to be identified;
Rajasthan DGP’s help was required for finding out accused from Rajasthan;
Forensic reports were pending;
Method by which Kauser died were to be identified;
Farm house where Kauser was shifted was yet to be identified;
16/05/07
Out of four reports of VL Solanki, PI remaining three reports submitted off late to Supreme Court;
17/05/07
SC remarks:
SC remarked that records show that Tulsiram was killed in an encounter and FIR dtd.27/28-12/06 to that effect was found in records. (although Johri was asking permission to interrogate him in SC vide her report of 12/05/07)
SC remarked that Raigar CID Head and Add. DGP was replaced by OP Mathur who was also Add. DGP and in charge of Police Prisons.
Geetha Johri removed from Sorab’s investigation was replaced by Rajnish Rai when in fact notice was issued only to Central Government.
Attorney Gen. asked for CBI investigation. Ahmedi (for rubab) also said the same thing + Johri should also be kept jointly in investigation team and Add.Solicitor General also asked for same thing.
after taking the action taken report no. 4 – it was not possible to come to a conclusion that matter was not rightly investigated and therefore CBI investigation is not needed.
Johri / Raigar will not be restored in investigation at this stage although demanded;
Tulsi said that he will submit final report within 4-6 weeks of 15/05/07;
SC Ordered:
Guj. to submit final report on 03/07/07;
Remaining items to be investigated in Action Taken report no. 4 to be completed and report to be submitted by guj. on next hearing;
guj. to file appropriate affidavits in matter;
Andhra, Rajasthan to Cooperate Gujarat for knowing motive of murder that was very important in investigation;
Investigating agency shall not take DGP’s permission.
DGP will not interfere in the investigation;
SC remarked that Kauser’s body was not found and no evidence to that effect was submitted to supreme court and law presumes death only after 7 years of inability to find body of a person.
Matter adjourned to 16/07/07
02/07/07
Fifth Action Taken Report submitted in SC
ATR says:
194 witnesses were examined
AP officials denied any official involvement;
MMFC had denied Narco Test – Appeal was pending in Sessions Court
Kauser’s body cremated on 29/11/05;
Forensic report dtd. 28/05/07 stated that nothing incriminating was found;
Investigation was pending for identifying AP Policeman who unofficially helped ATS and regarding two other police personnel;
Charge sheet will be filed within prescribed time-frame against arrested accused;
16/07/07 (derived from order of sc dtd. 12/01/10)
SC directed:
Sixth Action taken report dtd. 14/07/07 filed;
Copy of Charge-sheet should be provided to Addl. Solicitor General of India;
SC Remarked:
Sixth ATR reiterated that AP Police did not help ATS
Charge sheet was filed against 13 accused;
Out of 13 accused one was NV Chauhan who in previous ATR was reported as yet to be arrested;
Jadeja – Driver PC named in previous ATR was not arrested and not charge-sheeted (his name was missing in the list of arrested accused in the sixth ATR).
Name fame promotion were motives of Shorab’s death and destruction of evidence;
6th ATR stated that no link of Tulsiram was established in the case – third person missing as per Johri’s 12/05 investigation was not Tulsiram;
Ms. Johri stated that investigation was fair and impartial under her supervision;
02/08/07
(derived from order of sc dtd. 12/01/10)
Seventh Action Taken report was filed and following was stated in it:
It was stated that third person (as per Johri’s report was Kalimmuddin – police informer)
CID reiterated that non would be spared – anti bail was granted to non – police officers were witness against their colleagues – people from various ranks were arrested;
Jadeja was the one had first revealed name of Amin on 26/04/07;
Narco analysis matter was pending in court;
Phone call analysis was voluminous & will take time;
Habeas Corpus matter stands cannot survive since Kauser’s body was found;
15/09/08
(derived from order of sc dtd. 12/01/10)
Eight Action report was filed
Supplementary charge sheet was filed on 10/12/07;
Details of bail application status were given;
IO DH Trivedi was directed by Sessions Court for further investigation u/s. 173(8) within 90 days upon application by accused in that court;
Communication details between Crane owner (who was sent to pull out bogged tempo carrying firewood for cremation of Kauser’s body) were revealed;
Phone details of accused, their connection and wrong confinement of Kauser and Shorab at Disha farm were revealed.
For establishing motive (name /fame /promotion) criminal antecedents of Shorab in 15 cases were collected;
Kallimuddin (third person missing in Johri’s report) was not traced to get support in efforts were made to identify men from AP although no involvement of AP police personnel was suspected;
Narco matter was reserved by court;
FSL Gujarat stated that Narco analysis would be conducted with permission of accused and IO was asked to move high court in matter;
12/01/07
Supreme Court Judgment given.
Questions were:
Whether CBI Investigation should be directed?
Whether in law this could be directed?
What were facts that lead court to direct CBI investigation?
Lawyers appearing:
Dushyant Dave – for petitioner;
G Subramaniam – Solicitor General;
Mukul Rohtagi - Gujarat State.
Questions of Law:
Whether after submitting charge sheet by police and on-going trial – can CBI investigation be directed?
Whether after eight action taken reports on record, investigation was not properly being done?
Legal Question Answered by SC were hereunder:
Legally CBI investigation can be directed even after submitting charge-sheet in court and this was not first case. Hitherto in various crimes this had been done by Supreme Court and approach in this case was not new or first one. Supreme Court had stated that for instilling public confidence, confidence of victims and total justice CBI investigation was needed looking to facts of the case;
Normally view of SC is consistent in that when the accusation was against local police and high police officers CBI investigation being independent agency is needed;
Why only relative of deceased – even local public may come and ask for CBI investigation in such a case;
Whether investigation should be transferred to looking to facts of the case – the court answered:
The SC has gone through all eight action taken reports in the case;
The Eight action taken reports submitted by government had large & various discrepancies in comparison to investigation carried out by State Police and the Charge sheet filed by State Investigating Agency and that (virodhabhas) and it appears that investigation is not running in right direction.
On one hand charge-sheet stated that Shorab and two others were picked up by Gujarat Police Personnel and accompanied by 7 other AP policeman. But on other hand, charge-sheet did not reveal identity of police personnel of AP.
On one hand charge-sheet stated that Kauser was taken in one of the two tata Sumo Jeeps in which AP police personnel accompanied accused, but on other hand non of the AP police personnel were listed as Accused. This made Gopal Subramaniam to say that no honest investigating agency will plead inability to identify seven policeman of the state.
Charge-sheet states that third person was sent “somewhere”. But gujarati translation thereof would mean that he was “anyhow made to disappear”.
We are satisfied that attempts are made to mislead us;
The charge-sheet does not mention name of Dr. NK Amin (accused 12) who was mentioned in original charge-sheet;
ATR only say that Kauser was last seen in company of ATS on 26/11/2005 and cremated on 29/11/2005 but it is totally silent as to what happened in between that;
The mode of killing of Kauser was totally silent;
The Sessions judge had permitted narco analysis but the investigating authority of Gujarat have made false accuse of not conducting Narco Analysis by saying that the matter was pending with court – the Investigation only put forth excuses for not proceeding with Kauser’s death investigation;
Third person was identified as Kamalludin in the reports. That’s it – but it was totally silent as to what happened to him after that.
The possibility of third person being Tulsiram cannot be ruled out although all efforts were made by police to show that he was not third person;
Tulsiram’s death causes strong suspicion of elimination of human witness;
The phone records of three senior police officer were not analyzed properly in connection with death of Sorab and Tulsiram;
“Motive” – reasons behind crime are very important in investigation reports and it was not properly investigated. Name and fame and promotion cannot be motives in the case. Motive is very important when case is resting on circumstantial evidence – investigation is silent on this point;
Johri walked out of Tulsiram’s case even without informing court. Why? No justification is found;
On one hand in the Charge-sheet filed with Metropolitan Magistrate’s court 13 person were charge sheeted for criminal conspiracy. 13 were arrested. But NV Chauhan was mentioned in Action Taken report as “yet to be arrested”. Same way one Jadeja Police Constable – driver who was supposed to be arrested as per Action Taken Report did not appear amongst the name of accused persons who were arrested. Obviously, he had not been charge-sheeted. From these discrepancies, it is clear that the Gujarat Police has not carried out investigation in fair and impartial way as we initially wanted them to do.
Records show that VL Solanki was carrying out investigation in right manner, but Johri has not carried out investigation in right way.
Johri did not make reference to second report of Solanki. Though the first report was attached with one of her reports, it was not forwarded to the court.
Johri’s mentioned about criminal antecedents of Shorab and this was done with a view to obfuscate (dhundhlu) the inquiry.
Investigation is done outside the procedure of Cr.P.C. section 154-176.
No fresh FIR has been filed in spite of inquiry case no. 66 to make the same base for investigation and trial;
FIR dtd. 16/11/2005 could not for basis of real investigation since it was following a fabricated encounter.
Johri in her report herself conceded (admit) that ATS was not a regular police station where FIR should have been filed;
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