THE Gujarat High Court, in an unusual order on September 9, stayed the inquiry report of the Metropolitan Magistrate, Ahmedabad, S.P. Tamang, on the encounter killing of Ishrat Jahan and Javed Gulam Sheikh along with two suspected Pakistani nationals by the Ahmedabad Crime Branch police in June 2004. Tamang had concluded in his report that the encounter was fake and that the alleged terrorists were killed in the illegal custody of the police. He made his report public even as the High Court had constituted on August 13 a Special Investigation Team (SIT) consisting of senior police officers to investigate the encounter, while hearing a petition filed by Ishrats mother, Shamima Kausar, to transfer the investigation of the case from the State police to the Central Bureau of Investigation (CBI).
The High Court formed the SIT after securing the consent of Shamimas counsel, Mukul Sinha, and the State government, and directed it to give its report on or before November 30, 2009. The High Court Judge, Justice K.S. Jhaveri, in his September 9 order, said that it was wholly within the High Courts competence to monitor and supervise the investigation and that it was not necessary for the magistrate to proceed with the very same inquiry and reach his own conclusions in a hasty manner. The High Court held that the magistrate had exceeded his jurisdiction. In this interview, Nitya Ramakrishnan, a well-known Delhi-based lawyer, explains the implications of the High Courts order.
The Metropolitan Magistrate (MM) exercised his powers to inquire into the encounter under Section 176(1A) of the Criminal Procedure Code (Cr.P C). The High Court, in its order, says the condition precedent for exercise of the power under this section is custodial death, whereas the 2004 encounter killings were not custodial deaths. This subsection enabling a judicial rather than an executive magistrate to conduct the inquiry was added through an amendment, which came into effect from June 23, 2006. The High Court says the amendment can only be prospective and, therefore, the MM, a judicial magistrate, could not have inquired into an incident which took place in 2004.
Well, it is the normally understood position that any law of procedure or evidence applies to all proceedings pending on the day that law comes into effect. Unless, of course, the contrary is clearly specified.
Let us take the scene before the 2006 Amendment. Even at that time any unnatural death any death raising a reasonable suspicion was subject to a course of inquiry, including one by a magistrate. Sections 174-176 of the Code made this plain. The magistrates inquiry into the cause of death could be instead of or in addition to the police investigation. It is now on record that the State government set in motion a police investigation as well as a Sub Divisional Magistrates inquiry (under Sections 174-176). Quite simply, each had to run its course.
Before the 2006 Amendment, it was usually an executive magistrate who held these inquiries. Let us say a judicial magistrate ended up holding one instead. The inquiry does not get vitiated on this ground. A more independent authority [than the executive magistrate] who is not disqualified for the task has done it. It should only enhance the credibility of the inquiry. Section 460 (f) of the Code validates any inquiry under Section 176 even if done erroneously in good faith by a magistrate who was not empowered to hold it at all.
As it happened in the Ishrat case, a police investigation and a magistrates inquiry had been set in motion as far back as in 2004. Since their inception, both have undergone a change in the officers conducting them. The High Court changed the investigating officers of the police investigation. The magistrate conducting the inquiry changed in the course of five long years. Does that alter the fact that law not only permits but envisages two distinct but simultaneous proceedings?
It does not appear to be the case that S.P. Tamang started afresh on a concluded inquiry. Or that there was any order to halt this inquiry during the five years that the High Court was seized of Ishrats mothers petition for transfer of the police investigation to the CBI. Eventually, a new SIT was given the task of the police investigation. But then it does not cease to be a police investigation for that reason.
As for encounters not being deaths in custody, it is a question of fact whether one is or is not. That is a matter of conclusion and not assumption. A genuine encounter, if it is a spontaneous event, may not be one. Or even a genuine encounter may be a case of death in custody. [For] example, one that occurs when someone in custody, in a bid to escape, threatens the lives of the guards. The point is, there must be a magisterial inquiry with an open and independent mind. How can any claim of an encounter be checked with such fairness unless you factor in the possibility of it being false? That is to say, eliminate it being one of a death in custody. In any case of a death that is apparently a homicide, a magisterial inquiry may be held. In the Ishrat case, such an inquiry has found it to be a case of a cold-blooded custodial murder. The question whether conceptually encounter deaths can be called deaths in custody does not appear to be so moot here.
In Ishrats case, the High Court has constituted a new team for investigating an existing first information report [FIR] regarding the encounter deaths. The magistrates probe was a distinct proceeding before a different authority. Every day High Courts pass orders even on some aspect of the same proceeding before the same subordinate authority, without bringing the proceedings to a halt. Had the High Court ordered another magisterial probe it would have been a different matter. But that does not seem to be the case.
The High Court has assumed in its order that the 2004 encounter killings did not take place in the custody of the police.
I will put it like this. There must be an inquiry into the supposed encounter death. What does such an inquiry look to establish? Whether or not it was spontaneous and necessary self-defence against armed miscreants. Or, whether the danger was such as to legitimise lethal force. Even where the situation is clearly non-custodial, the legitimacy of lethal force is a matter for inquiry. Let us say there are unarmed people or a set of people whose striking power is negligible. The policemen will have to justify the use of lethal force. If the situation was not that of a spontaneous face-off or armed encounter, then the conclusion that it was a custodial killing is inescapable. No one who is unarmed and free will hang around to be shot unless the police had the power to prevent their escape. To all intents and purposes such police power over life and limb is custody. An inquiry that does not test this possibility before eliminating it cannot be called fair.
It is the claim of the killing being an encounter death that is checked. If the inquiry reveals that the claim is correct, it is a conclusion that this was not a custodial death. It is a conclusion that must come after the inquiry. It cannot be an assumption that rules out an inquiry.
What is the purpose of a magisterial inquiry into an unnatural death when its findings have no impact on convictions?
The purpose of a magisterial probe under Section 176 (or even 176)(1)(A) is somewhat different from a police investigation into an offence. A magisterial probe may be occasioned in the case of any death in custody, even an accident. The probe does not lead to punishment. In matters of homicide or in some cases of suicide there would also be a police investigation. It is possible that an investigation by the police and a magisterial inquiry into the same occurrence result in different findings. The purpose of a magisterial inquiry is to ascertain the apparent cause of the death. Therefore, it supplements the investigation by the police. When the police investigation report is filed, the court has the benefit of looking at both the findings. The different though eventually convergent procedures are meant to be a checks-and-balances system to ensure accountability. This system reflects the laws concern for the value of human life and is not meant to be stymied.
What does the High Courts stay of Tamangs report mean when the court has said that the SIT could consider the report on its merits?
I wonder what the stay means really. The magistrates report is a guiding tool, one that must propel correct action. It leads to no immediate consequences automatically. An honest and sensitive government must take the indictment in such a report seriously. It is an accountability mechanism.
