Even as he has told the government and the CBI that former IB joint director Rajinder Kumar and three serving IB officers cannot be prosecuted without sanction from the competent authority in the Ishrat Jahan encounter case, Attorney General Goolam E Vahanvati has provided adequate room for manoeuver to the MHA by pointing to the fact that the evidence against the four officers is at best circumstantial.
The four officers have been chargesheeted for murder, conspiracy, abduction and illegal confinement. In doing so, the country’s top law officer has referred to the written observations by CBI Director Ranjit Sinha, who, while overruling the agency’s director of prosecution’s (DoP) stand that there is no need for sanction, had noted that the “material on record reveals that the accused were not present at the scene of crime” and that “there are certain infirmities in the statements of witnesses and we are relying largely on circumstantial evidence”.
In his note, Sinha had also said, “Further, the role of IB and their operational requirements in dealing with terrorist activities is also to be kept in mind.” Apart from Rajinder Kumar, who was the then JD, SIB, Ahmedabad, at the time of the incident, the other officers who were chargesheeted earlier this week in the case are M K Sinha, the then ACIO, SIB, Ahmedabad; Rajeev Wankhede, the then ACIO, SIB, Ahmedabad; and Tushar Mittal, the then ACIO, SIB, Ahmedabad.
Pointing to this crucial admission by the CBI Director, Vahanvati has opined, “Having regard to the aforesaid, the question of performance of duty cannot be ruled out.” His opinion also refers to the agency’s admission on the basis of facts that Kumar used to come to the farm house for interrogating Amjadali (a suspected terrorist) and that there used to be discussions about Lakshar-e-Toiba operations.
Vahanvati has also countered the CBI DoP’s opinion by holding that as per settled law, if, during the exercise of official duty, a public servant has acted in excess of his duty or there is a reasonable connection between the act and the performance of the official duty, the excess “will not be a sufficient ground to deprive the public servant of the protection (of prior sanction)”.
Incidentally, according to the DoP, there was adequate circumstantial evidence against Kumar as he “had knowledge about the abduction” and had “interrogated all the four persons” who were killed in the encounter. Kumar had also allegedly “provided weapons” to Gujarat Police officer G L Singal for the operation.