HC reserves order on fresh FIR till Dec 1

Centre’s counsel Pankaj Champaneri disclosed the government’s stand wherein they had shown unwillingness to handover the investigation to the CBI.

“CBI is already over-burdened with many cases and its resources are already spread too thin. Moreover,it is constrained as many posts in this organisation are vacant,” the Centre said in a written communication.

For NIA,the government said it could be given the investigation only if the SIT,in its report,had not ruled out the first portion of the original FIR in the case,which was related to the alleged terror conspiracy hatched by Javed and two others. “FIR on record contains reference to a conspiracy to commit terrorist acts. Another part of the FIR refers to an encounter between the four persons killed and the security forces. Based on the SIT’s report,the court may come to an appropriate conclusion where the whole or part of the FIR should be set aside. If that part of the FIR that refers to a conspiracy to commit a terrorist act will remain undisturbed,then it is our submission that conspiracy must be investigated,” the communication added.

It was the stand of the Centre that the NIA could investigate only certain scheduled offences and so,if the terror conspiracy part is ruled out then it would not be able to investigate the same due to statutory bar. “NIA will have jurisdiction only if any of the scheduled offences is believed to have been committed. If the part of the FIR referring to a conspiracy to commit terrorist crimes survives,then,NIA would have jurisdiction.”

Following this,the court observed this could be ascertained only after an investigation in the case and that the outcome in that regard may create statutory hurdle during prosecution in future.

During the course of hearing,the court also expressed its displeasure at a statement given by former Union Home Secretary G K Pillai,who had reportedly told a news channel that the SIT report calling the encounter fake did not mean a clean chit to Ishrat on that she was allegedly a Lashkar-e-Toiba operative.

A division bench of the HC had,on Monday,announced a conclusion of the SIT that the encounter was not genuine and stated that such situation had arose wherein a fresh FIR could have been registered.

Except the state government,all the concerned parties to the issue had opined that a fresh FIR has to be registered. The two petitioners,Shamima Kausar and Gopinath Pillai — mother and father of Ishrat and Javed Sheikh,respectively — had demanded that the fresh FIR be investigated by the same SIT. They said the SIT was well-versed with the investigation so far and had not completed its task assigned by the court.

The Gujarat government,on the other hand,demanded that the investigation be handed over to a state agency,adding that to obviate any criticism,it was open to investigation by any agency or an SIT as formed by the court in the case.

Ishrat,her friend Sheikh and two others,Amjad Ali Rana alias Akbar Ali Rana and Zeeshan Johar alias Abdul Ghani,were killed in an alleged encounter by the officers of the Ahmedabad DCB on June 15,2004.