Did you think that the Special Cell or the Delhi Police would introspect on its ways after the publication of JTSA's report, Framed, Damned, Acquitted? How wrong you were. It is now attempting desperately to defend the indefensible by hiding behind a maze of statistics, ignoring the real questions that the report has raised: namely the brazen and systematic violation of all established legal norms and due process.
The Special Cell claims helplessness in not being able to enlist members of the public as independent witnesses as the public fears to depose before the court for reprisals. If only it were so simple.
In State versus Irshad Ahmad Malik, the court noticed that any effort to enlist independent witnesses “was omitted by the police deliberately”.
In State versus Mukhtar Ahmed, the court noted “the distance between the Special Cell office and the Azadpur Mandi [from where the accused was allegedly apprehended] is 20 kms and is dotted with numerous government offices. In the four and a half hours [the time between the receipt of secret information and arrest] they had, on the long stretch to Azadpur, the Special Cell could have enlisted some credible independent witnesses.”
In many of these cases, arrests were made at railway stations and metro stations, why did the Special Cell not attach any official of the railways or Metro in their operation?
In other cases, accused were alleged to have been arrested from lodges, guest houses and rented accommodations. Why were the managers/staff of the guest houses or landlords not made public witnesses in the arrests and raids?
These are questions that the Courts have asked.
And what is the excuse for sending samples of allegedly recovered material to CSFL after days of delay? And for keeping the seal of the parcels of recovered material with the Investigating Officer of the case? Why the use of private vehicles which does not allow the courts to verify the police vehicle log books and hence the veracity of the operation being claimed by the police?
Even when explosives were said to have been seized, the Special cell did not engage the services of any explosives expert, which led the courts to say that the “Special Cell was not interested in joining any other person apart from its Special Cell team member”. (State versus Imran Ahmad and another).
Pointing to the procedural lapses, the courts have felt it important to say that, “This procedure is not a mere formality for the sake of it but it provides safeguard against false implication of persons” (Peeraswami versus State of NCT Delhi, 2007 cited in State versus Imran Ahmad and another)
Fudging of Facts:
The Special Cell giving proof of its “quality of investigation” and “professionalism”, has gone on to make several blatantly false claims about the State Versus Maurif Qamar and Md. Irshad, a case which was handed over to the CBI for investigation after the accused Qamar and Irshad claimed in court that they were actually informers who had been framed by the Special cell when they failed to carry out the bidding of the Cell. The CBI in its findings confirmed the claims of the duo.
The Special Cell now claims that it had known all along that “the main accused was indeed a police informer. However, Central intelligence initiated investigations against him after the agency came across his phone conversations with a militant later killed in an encounter in 2005.” (The Hindu, 18th September 2012).
How is it that this crucial piece of knowledge was never mentioned by the Special Cell till the CBI exposed the IB links of the accused men? How was their no reference to this phone conversation – between the accused and the conveniently ‘encountered’ and dead militant – in the FIR filed in connection with the arrest of the accused? How is it that the Special Cell never ceded to this fact till the CBI produced phone call records showing how the accused were in regular touch with IB officers? Has the Special Cell suddenly recovered from amnesia?
In fact, the High Court had directed the trial court to set aside the chargesheet filed by the Special Cell against Qamar and Irshad, insisting that it consider only the CBI closure report. It was against this that the state moved the Supreme Court. The question pending before the Supreme Court is whether the Special Cell’s chargesheet should be considered by the trial court or not. It has not yet pronounced the order on this, reserving its judgement in its order dated 16th August 2012. It is an absolute lie to state that Supreme Court has set aside the CBI closure report.
Convictions have been Secured? Not Really
The Special Cell is trying to spread the canard that its track record in securing convictions in terrorism cases is very high and goes on to claim that in fact 6 of the 16 cases cited in the report, Framed, Damned, Acquitted, “have actually ended in conviction” (The Hindu, 20th September 2012). But what is the truth? Let us look at each case:
1) State Versus Tanveer Ahmad, Shakil Ahmad, Ishtiaque Akhtar Dar, Md. Akhtar Dar, Md., Yusuf Lone, Abdul Rauf and Ghulam Md:
Verdict: All accused Acquitted of all charges.
2) State Versus Farooq Ahmad Khan and others:
Ten people were tried under various sections of IPC.
Four were acquitted of all charges (their case history has been documented in the report)
Two were convicted under sections of Explosives Act or Arms Act, and not charges of terrorism.
Only four of the ten were convicted of terrorism charges.
3) State Versus Aamir Khan:
19 cases were slapped against him and he has been acquitted in 17 of those cases; only two cases are pending before the High Court.
4) State Versus K. Brojen and another:
Verdict: Acquitted of all charges.
5) State versus Hamid Hussain, Md. Shariq, Md. Iftekhar Ahsan Malik, Maulana Dilawar Khan, Masood Ahmad, Haroon Rashid:
Verdict: All accused were acquitted on charges of terrorism. The only charges that the prosecution was able to sustain was the Arms Act against Hamid Hussain and Mohd. Shariq.
6) State versus Irshad Ahmad Malik:
The State challenged the acquittal in High Court but its appeal was dismissed and the acquittal upheld.
7) State Versus Ayaz Ahmad Shah:
The State has filed a fresh chargesheet against Shah but the trial court though dismissing the case against Shah had cited technical reasons had also ripped apart the bases of the prosecution’s case.
8) State Versus Saqib Rehman Bashir Ahmad Shah, Nazir Ahmad Sofi, Hazi Ghulam Moinuddin Dar, Abdul majeed Bhat, Abdul Qayoom Khan and Birender Kumar Singh:
The State appealed against the acquittal but the High Court upheld it.
9) State Versus Khurshid Ahmad Bhat:
10) State versus Salman Khurshid Kori and others:
Verdict: Acquitted of charges of terrorism, Salman Khurshid Kori and others were convicted under Section 5 of Explosive acts.
In pronouncing the judgement, the court had noted “the entire case is based on the disclosure statements which are not admissible in evidence and the testimonies of the police officials who are interested witnesses.” Even while convicting Kori and others under the Explosives Act, the Court observed that the Police did not enlist the services of a bomb disposal squad even when they came to the knowledge of explosive material having arrived in Delhi. “This makes the police version doubtful.”
11) State versus Muarif Qamar and Md. Irshad Ali:
The CBI established how the two accused were really IB informers and how they were framed by the Special Cell.
12) State versus Gulzar Ahmad Ganai and Amin Hajam:
13) State versus Tariq Dar:
14) State versus Imran Ahmad and Another:
15) State Versus Mukhtar Ahmad Khan:
16) State versus Md. Iqbal @Abdur Rehman, Nazarul Islam and Jalauddin:
In all of these 16 cases cited in the report, the Police have been able to secure convictions on terror charges in only in one case and that too partially. In the remaining cases – even those where some degree of conviction was secured – it was not on charges of waging war against the State or terrorist conspiracy, charges which could not be substantiated in the courts of law. Courts have clearly held that there was nothing to prove that the accused were members or activists of terrorist organizations, or that they intended to carry out terror attacks.
Sure, appeals in some of these cases may be pending before the High Court, however, in both, Case No. 6 and Case No. 8 (above), the state’s appeals for overturning the acquittals have been rejected by the High Court. The High Court has observed that “…the Court interferes with an order of acquittal where the finding of the Trial Court is perverse or there is gross mis-application of law or there are compelling and substantial reasons”. The Special Cell’s confidence is then, to put it politely, misplaced.
• State Versus Khurshid Ahmad:
The Special Cell has lamented that the “person was taken as a juvenile on the basis of a school document…”. How would they prefer to establish the age of any accused? Through custodial confessions and disclosures?
• FIR no. 146/ 2005, PS Kapashera was not investigated by the Special Cell at all (The Hindu, 20 September 2012). Of course, it wasn’t. The key author of that ‘encounter’ – famously described by Judge Virender Bhat as one that was “carefully scripted in the office” – was posted in the Special Branch then, as is mentioned in the Report.
However this exceptional talent at ‘encounters’ was duly recognized and he was swiftly absorbed into the Special Cell.
The Special Cell has not responded to the charge as to why it feels no moral compulsion to even take off duty officers such as ACP Sanjeev Yadav, Inspector SK Giri and numerous others implicated by the NHRC in the Sonia Vihar fake encounter case. But really, what is to be expected of a force that did not even dismiss its officer S.S. Rathi after he was convicted by the trial court for the CP fake encounter of 1997 on the facile plea that he had filed an appeal against his conviction in a higher court.
Released by Jamia Teachers’ Solidarity Association
21st September 2012