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Across the aisle: Fake encounter with facts, fake controversy

No government can pronounce anyone guilty or innocent. No one can declare that Ishrat Jahan and three others were ‘terrorists’.

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Ishrat Jahan and three others were killed by the Gujarat police in an encounter. Was it a genuine encounter or a fake encounter? I do not know the answer.

There are others who claim to know the answer. I am astonished by the certitude of some of my fellow citizens that the encounter was a genuine encounter. None of them had access to the case diary or the statements of witnesses or the forensic reports. None of them had read the charge sheet in the case. Yet, they are absolutely certain that the four persons who were killed were terrorists and the encounter was genuine!


Little do they realize that their ‘process of reasoning’ will be the death-knell of the rule of law.

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I am proud to swear by the principle that ‘every person shall be presumed to be innocent unless proven guilty in a fair trial in a court of law’. The day we jettison this principle will be the day that marks the beginning of the end of the rule of law in this country.

The government did not jettison the principle in the case of Ajmal Kasab. A mob jettisoned the principle in the case of Mohammad Akhlaq. The Ishrat Jahan case is a good case to test our allegiance to the principle.

Central intelligence agencies had provided intelligence inputs to the Gujarat police that Ishrat Jahan and three others were terrorists or linked to terrorists. It was the duty of the Gujarat police to act on the inputs, apprehend the suspects, gather evidence, charge them, and bring them before a court of law. However, what had happened was the exact opposite.

On 15 June 2004, Ishrat Jahan and three others were killed. The police claimed that it was a genuine encounter. Ishrat Jahan’s mother, Shamima Kausar, alleged that it was a fake encounter and that the four persons were killed while they were in police custody. A Special Judge ordered an inquiry by the Metropolitan Magistrate.



On September 7, 2009, Judge Tamang, after an inquiry, concluded that the killings took place in a fake encounter. His findings were chilling:

*that the four persons were killed, while they were in police custody, on the night of 14 June 2004;

*that they were killed by shots fired from a close distance while they were sitting in a car; and


*that the weapons from which the shots were fired were unlicensed and illegal.

By order dated August 12, 2010, the High Court of Gujarat constituted an SIT. After investigation, the SIT concluded that the encounter was a fake encounter.

On December 1, 2011, the High Court ordered that the case shall be taken over by the CBI. The CBI investigated the case and concluded that the encounter was a fake encounter. On July 3, 2013, the CBI filed a charge sheet against seven police officers. Consistent with the principle that I hold inviolable, I am prepared to say that the police officers shall be presumed to be innocent unless proven guilty at the trial.


The Central government’s role in the case was limited to filing an affidavit in the High Court in the case instituted by Shamima Kausar. An affidavit — the first affidavit — was filed on August 6, 2009. A month later, the report of Judge Tamang was released. There was an uproar in Gujarat and elsewhere. The Gujarat police defended the encounter citing the “intelligence inputs” by misinterpreting the affidavit. Therefore, it was necessary to clarify the affidavit. Accordingly, a ‘further affidavit’ was filed on September 29, 2009. The affidavit was vetted and approved by the Attorney General of India. Paragraphs 2 and 5 were the key paragraphs (see box). The important clarification was intelligence “inputs do not constitute conclusive proof and it is for the State government and the State police to act on such inputs.”

No government can pronounce anyone guilty or innocent. No one can declare that Ishrat Jahan and three others were ‘terrorists’. By the same principle, no one can pronounce that the seven persons charge sheeted by the CBI were guilty of murder. Those powers belong exclusively to the courts.


Now, please read the two paragraphs (). Please tell me which sentence, phrase or word in the said paragraphs, or in the whole ‘further affidavit’, was wrong — ethically or legally.

The real controversy is not about the affidavits, it is about the encounter on the night of 14/15 June 2004. Was it a fake encounter? I do not know. But is the controversy over the affidavits a fake controversy. Undoubtedly, yes.



2. I am making this further Affidavit in view of subsequent developments in relation to issues connected with the Petition, and to clarify apprehensions expressed in regard to the Affidavit filed by the Union of India as well to refute attempts to misinterpret portions of the Affidavit.

5. I respectfully submit that the Central Government in the said Affidavit did not address any issue relating to the merits or otherwise of the police action. It was essentially concerned with dealing with the allegations relating to the ‘intelligence inputs’ which are available with the Central Government and which are shared on a regular basis with the State Governments. The primary concern of the Central Government was to see that the inputs gathered by the Indian Security Agencies and their efforts were not discredited. I say that it should be clear to all that such inputs do not constitute conclusive proof and it is for the State Government and the State Police to act on such inputs. The Central Government is in no way concerned with such action nor does it condone or endorse any unjustified or excessive action.”

First published on: 19-06-2016 at 00:07 IST
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