The tussle between the CBI and Intelligence Bureau on the formers decision to name IB special director Rajendra Kumar in the Ishrat Jahan case chargesheet has snowballed into a controversy with the Ministry of Home Affairs saying that the probe agency will have to seek prosecution sanction against Kumar. CBI officials,however,said that they dont require a sanction from the MHA as he is accused of conspiracy and they have sufficient evidence.
Sources in the MHA said that without prior sanction,the agency cannot chargesheet Kumar.
The CBI may file a chargesheet next week in which Kumar is likely to be named for allegedly playing a crucial role in generating the intelligence input which led to the encounter that killed Ishrat Jahan and four others.
The MHA officials maintain that under section 197 (Prosecution of judges and public servants) of the CrPC,the CBI will have to seek sanction without which their chargesheet will have no sanctity in the court.
Section 197 of the CrPC says,When any person,who is or was a judge or magistrate or a public servant not removable from his office save by or with the sanction of the government,is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty,no court shall take cognizance of such offence except with the previous sanction.
It is learnt that if the CBI proceeds without taking sanction from the government,Kumar might move the court challenging the chargesheet. The CBI has claimed that they require prosecution sanction only in cases of corruption. The agency has said that they do not plan to arrest Kumar now and let the court decide on summoning him.
Kumar is learnt to have shot off a letter to CBI director Ranjit Sinha complaining of a biased view adopted by former Gujarat cadre IPS officer Satish Verma.
Ahead of filing its chargesheet,the CBI has also sought details of file notings from the MHA on the two affidavits filed by the government in 2006 and 2009 in the Ishrat Jahan encounter case. The CBI said that the file notings will help to further bolster their case against Kumar.
However,sources in the MHA said that the two affidavits are in public domain and the agency can easily access them,but they are opposed to handing over the file notings. A final decision will be taken by the Home Secretary after consulting the Law Ministry,said officials.
One of the then under secretary from the MHA,R V S Mani,who filed both affidavits,was also questioned by a CBI team in Ahmedabad.
The first affidavit filed by the MHA on August 6,2009 termed the four persons killed by the Gujarat Police as Lashkar-e-Toiba militants,and objected to a CBI probe into the encounter.
The MHA changed its stand in September 2009 when Narendra Modi government tried to absolve itself using the Centres 2006 affidavit. The second affidavit filed on September 30,2009,said that intelligence inputs about the persons killed did not constitute conclusive proof. It also supported a CBI probe into the encounter.