Modi government caught on the wrong foot

The Ahmedabad crime branch police apparently has been caught on the wrong foot in requesting the then Chief Metropolitan Magistrate (CMM) to hold an enquiry into the June 15, 2004, “police encounter” of Ishrat Jehan and three others near the Kotarpur water works on the outskirts of Ahmedabad.

According to the legal experts, the enquiry under 176 of the Criminal Procedure Code then was held by the sub-divisional magistrate, an executive appointed by the government and were often considered pliable. But a Central amendment of the Cr. PC later gave the authority to hold such enquiries to the Metropolitan Magistrates, a wing of the judiciary on which the governments had no control.

The crime branch request of 2004 for enquiry into the encounter by its own police force apparently was intended to come out clean of the doubt raised then by some human rights activists about the bonafide of the police action. It apparently expected the SDM to give a favourable report to silence the questioning human rights activists, but the Central amendment turned the tables.

Legal sources said for about four years no action was taken on the crime branch request because no Metropolitan Magistrate was willing to stick their neck on the sensitive issue. It was only on August 12 this year that the CMM forwarded a letter to Tamang and enquire and submit his report at the earliest on the Ishrat Jehan encounter and the metropolitan magistrate completed the task in just 25 days and submitted the report to the CMM on Monday.

None of the magistrates, however, made the report public, it was released to the media by the advocate for one of the petitioners of the case in the High Court, Mukul Sinha. He said when he came to know that Mr. Tamang had submitted his report, he applied to the Metropolitan court for a certified copy of the report and was provided to him late on Monday evening which he revealed to the media. Sinha is the advocate of Mr. Gopinath Pillai, father of Javed Sheikh alias Pranesh Pillai, in the case before the High Court.

Even as the State government raised questions about the authority of the Metropolitan Magistrate to hold inquiry under section 176 other than a case of custodial deaths, the legal experts pointed out that under 176, the Metropolitan Magistrates had been given suo motu powers to enquire into any “unnatural deaths.” In case of custodial deaths and suspected dowry deaths, such enquiry was mandatory, but in other “unnatural deaths” like the police encounter, it was optional left to the discretion of the judicial authority to hold the enquiry if felt fit.

“Mr. Tamang has not acted beyond his jurisdiction and the enquiry into the Ishrat Jehan encounter under section 176 was justified and within the law, particularly in this case the enquiry was at the behest of the crime branch police itself,” the legal experts said.

Source: The Hindu