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[2009 Chhattisgarh Extrajudicial Killings] Supreme Court Commences Hearing On UOI's Plea Seeking Action Against PIL Petitioners For Allegations Against Security Forces

Mehal Jain
18 May 2022 3:50 AM GMT
[2009 Chhattisgarh Extrajudicial Killings] Supreme Court Commences Hearing On UOIs Plea Seeking Action Against PIL Petitioners For Allegations Against Security Forces

The Supreme Court on Tuesday commenced hearing on a 2009 plea for independent investigation into alleged incidents of extra-judicial executions of tribals in Chhattisgarh.

The Union Government had in April this year filed an application in the Supreme Court seeking action against petitioners who filed this PIL making allegations against security forces of committing extra-judicial killings during anti-Maoist operations in Chhattisgarh. Contending that the petitioners deliberately submitted false informaiton before the Court, the Centre has sought action for perjury against them. In an application filed before the court, the Centre has sought directions to hold the petitioners guilty of leveling false charges of offence and of giving false and fabricated evidence before the Supreme Court with an intention to procure conviction for a capital offence or for life imprisonment against the personnel of security forces and to shield the actual Left Wing Extremist culprits. Further directions have been sought to CBI/NIA or any other central investigating agency or any other monitoring committee, to register an FIR and conduct an in-depth investigation. The Centre has submitted that to protect the Left Wing Extremists, the security personal have been made scapegoats to bear the brunt of false accusations.
"The victims of abuse and atrocities inflicted by unscrupulous Left Wing Extremists are being misguided by some motivated individuals to provide legal protection to the Left Wing Extremists by obtaining protective orders from this Hon'ble court through fraudulent and deceitful machinations," the Affidavit states. Saying so, an investigation is being sought to identify the individuals/organisations, who have been "conspiring, abetting and facilitating filing of petitions premised on false and fabricated evidence with a motive to either deter the security agencies to act against Naxal militia by imputing false charges". Centre's application has been filed in response the PIL filed by Himanshu Kumar and others seeking directions to have the CBI take over the investigation and prosecution with respect to the complaints made by the Petitioners and others, relating to the alleged massacres that took place in Chhattisgarh on 17.9.2009 and 1.10.2009. Further directions were sought for payment of compensation to the victims and their families for the extra judicial executions for the looting of their properties, burning of their houses, and other losses suffered by the victims.mThe government has alleged that the petitioners sought to portray the incident as act of barbarianism committed by security forces, where the special operation teams of police and paramilitary forces were alleged to have indulged into torturing, looting and outraging the modesty of family members of those encountered. The Centre has submitted that the Petitioners, who on affidavit, narrated incidents alleging it to be gruesome killings and massacres of innocent tribal villagers, have on their own or under influence of others, brazenly made false statements in the petition and have filed false affidavits.

On Tuesday, the bench headed by Justice A. M. Khanwilkar heard SG Tushar Mehta and Senior Advocate Colin Gonsalves for the petitioners.

SG: "This is a very serious matter. It Concerns Chhattisgarh which is Such a seriously Maoist infected area. I have moved an application- The main matter does not survive. I would request your lordships to see some pages of the petition that will go to the root of the matter. It has been the case of all governments across political colour that there are some groups who are explicitly helping this Maoist activity either by providing them other services or by fighting for them in courts- sometimes directly, sometimes in a pseudo manner like the present case"
Indicates page 1 of the petitioner. Petitioner number one is Shivanshu Kumar. Two onwards other persons who are affected persons. They are the tribals, the general tribals. Chhattisgarh government, union of India and CBI is the party. Affidavit is affirmed by Himanshu Kumar who claims to be running oneNGO. Please see what picture he has created. See the systematic attempt to demoralise or security forces.
The SG quoted the following excerpt from the petition, concerning the allegations, the prayers and the petitioners- "The petitioners above named submit the present writ petition under article 32 of the Constitution seeking intervention of the court through a writ of mandamus or any other writ and/or direction to have the CBI take over the investigation and prosecution with respect to the complaints made by the petitioners herein and others with respect to the massacre that took place on 17.09.09 and 1.10.2009 in the villages of (...), (...) and (...) in the district of Dantewada, Chhattisgarh by the Chhattisgarh police, special police officers, activists of Salwa Judum (group of vigilantes sponsored by the Chhattisgarh government) and the paramilitary forces consisting of CRPF and the COBRA battalion. The petitioners also seek an order directing the payment of compensation to the victims for the extrajudicial executions, for the looting of properties, the burning of their houses and other losses suffered by the victims on account of unlawful activities of the respondents and their agents. Petitioner number one, Shri Himanshu Kumar is the director of Vanwasi Chetna Ashram, which is an NGO working for the development of tribals in the Bastar region and is rendering help to petitioners herein and other tribals of Dantewada district of Chhattisgarh. On 11.10.2009, petitioner number one visited the concerned villages where the massacre took place and gave them support to approach appropriate legal machinery for seeking justice. He helps the terrified tribals to give complaints with respect to the mass killings on 17.09.09 and 1.10.09. Petitioners 2 to 12 are family members of persons who had the tongue and other body parts such as hands cut off by the security forces and saw their relatives including infants killed in cold blood by Chhattisgarh police, special police officers appointed by the Chhattisgarh government, activists of the Salwa Judum and the central paramilitary forces consisting of the CRPF and the cobra battalion in the two attacks on 17.9.09 and 1.10.09. Even a 70-year-old tribal woman had her breasts cut off and she was stabbed to death. A two-year-old infant was brutally murdered. A blind man of 70 years was similarly executed. Houses were burnt. Money and properties were looted. The son of one of the petitioners had his head crushed with a stone"
SG: "Please see the affidavit by the Chhattisgarh government in reply to this petition- 'The petitioner has stated in paragraph 2 of the writ petition that he is the director of Vanavasi Chetna Ashram. The Ashram is the same organisation to which foreign contributions had been suspended by the central government...State of Chhattisgarh is facing the menace of naxalism which is termed as the number one security threat to the nation's security and integrity by the honourable Prime Minister of India. The state with the help of paramilitary forces has to tackle naxalism and most of the organisations related to naxalite movement have also been banned. The state of Chhattisgarh has lost life of its personnel in defending the state. In last two years, personnel killed by naxalites in the state of Chhattisgarh would be in the range of 300. In the district of Dantewada alone, 65 police personnel have died. These writ petitions are filed by naxal sympathisers. In fact, the state of Chhattisgarh believes that mountains of complaints are filed so as to distract the police personnel from tackling the menace of regards the Incident dated 17 September 2009, the police found a naxal camp in the jungle in the early hours of the morning while patrolling on 16 September. When the police started to reach the villages of naxal camp, at around 5:30 AM, naxalites opened fire indiscriminately. Police had no option but to retaliate in self-defence. Even after ceasefire, 150 to 200 naxalites were able to retreat in dense forest. And then arms and ammunitions were recovered from naxals including naxal uniforms. Many police personnel were shot dead. The precious lives of police personnel were lost in the crossfire and the firing continued till 8 PM on 18 September 2009. Further enforcement of police personnel was also sought. FIR was registered on 20th September. The case was transferred to CID later. Nature of complaints is full of suspicion as all the complaints are in the same format and typed in the same manner giving rise to suspicion that certain organisations sympathetic to naxalites are behind lodging of such complaints. Complaints are being investigated and the veracity of those complaints are doubtful'"
The SC on February 15, 2010 had asked Mr. G.P. Mittal, District Judge, Tis Hazari, Delhi to record the statement of the tribals who were joined as petitioners by Kumar, in the presence of interpreters and Kumar himself and videograph the entire incident.
SG: "Your Lordships had directed the district judge to record the statements of these petitioners in the presence of Himanshu Kumar. And they never said what was said in the petition. Nobody said somebody was burnt alive in oil. Only in the press release of the fact-finding team of PUCL were such allegations made. Earlier, there used to be filing of petitions on newspaper reports, most of which can always be generated. Your lordships stopped entertaining petitions on newspaper reports. So now the modus operandi is that I have an organisation, I will send my team and I will file a fact-finding report which will be the basis of the petition...The Ministry of home affairs also filed an affidavit contemporaneously dated 11 February 2010. So All governments are on the same page across the political spectrum so far as fighting this menace is concerned..."
Next, the SG indicated the interim order of the Supreme Court of 8.2.2010, where the Supreme Court noted in its order that the senior counsel appearing on behalf of the petitioners submits that after the adjournment of this Writ Petition on 5th February, 2010, Petitioner Nos. 2 to 13 were illegally taken into custody or caused their disappearance by the respondent-police; and that the counsel appearing for the State of Chhattisgarh seriously disputes the correctness of the assertion made by the senior counsel about the police being responsible for causing the disappearance of Petitioner Nos. 2 to 13. "We would like to examine the Petitioner Nos. 2 to 13 and hear their version as to what transpired in the matter after we have heard and adjourned the hearing of this petition on 5th February, 2010 or prior thereto. The interest of justice requires the production of Petitioner Nos. 2 to 13 in this Court. We, accordingly, direct Respondent No.1 to produce the Petitioner Nos. 2 to 13 in this Court on 15th February, 2010 for the purpose of further hearing of this petition", the court had directed on 8.2.2010.
The SG showed that the 15.2.2010 order of the Supreme Court records, "Pursuant to our directions the first respondent produced six out of 13 petitioners, namely, Shri Soyam Rama, Shri Kunjam Hidma, Shri Madavi Hidma, Shri Soyam Dulla, Smt. Muchki Sukri and Smt. Sodhi Sambo (Petitioner Nos. 2, 3, 4, 7, 8 and 13 respectively). We are informed that the six petitioners who are produced before us today speak only 'Gondi language' and no other language. In the circumstances, it would not be possible for us even to elicit any information from them and interact with them. We are of the view that their security is a paramount consideration. It is equally important that they to express themselves freely without being influenced by any outside agencies or individuals. In the circumstances, we consider it appropriate to request Mr. G.P. Mittal, District Judge, Tis Hazari, Delhi to record their statements in the presence of the interpreter, namely, Mohan Sinha, as well as the first petitioner Mr. Himanshu Kumar, who is stated to be conversant with their language…We also permit the learned counsel for the petitioner Shri Colin Gonsalves or any other lawyer to be nominated by him to be
present in the proceedings before the District Judge along with counsel for the Union of India and the counsel for the state of Chhatisgarh…We make it very clear that the District Judge shall proceed
to record the statement only after being satisfied to himself that the persons produced before him are free from any pressure and are capable of making statement freely without being influenced by any of the outside agency/parties. The learned District Judge is requested to arrange for a videography of the entire proceedings"
SG: "What transpired before the district judge was that the Total complainants are 13, statements recorded by the district judge were of 10 as 3 could not be found. None of them made any allegation against any security personnel. That is the bottom line in all the statements. Petitioner number one says that thumbs were cut, hands were cut off. This is not corroborated. They never said any of these things. The petition said even a 70-year-old tribal woman had her breast cut off, a Two-year-old infant was brutally murdered. What transpired before the district judge was that none of the petitioners made any allegations against police, security personnel. None made even such allegations of looting of money or property. There was an ambush started by the Maoists and something did happen but nothing of the sort as said in the petition. That is the twist of the petitioner number one"
SG: "Who are these people who malign the security forces- Who ensure that the tribals do not trust the security forces, who ensure that the security forces are demoralised? As the first step, your lordships may consider directing a fact-finding enquiry into this. In two years, more than 300 personnel have lost their life. This is the most serious form of terrorism in the country. Who are these people? What is the funding? What is their motivation? What is the intention? At whose behest are they actin? Somebody will have to do that. This is a serious issue to the security and integrity of the country. And I am not filing a PIL to seek this, I am praying for this in a PIL filed by someone who is found to be wrong by the district judge appointed by your Lordships...petitioner no. 1 was present when the district judge was recording the statements. Now after 12 years, he is saying they must be under pressure? If he says that there was pressure, his affidavit should have come in 2010 only (when the report of the district judge was submitted). He says that even then false allegations were made by the central government against him- on the same lines as our present affidavit. In 2010, there was no political angle. All political parties have taken the same stand!"
Senior Advocate Colin Gonsalves, for the petitioner: "The killing was pointed out by the petitioner in the petition who went to the area and collected the information. The state of Chhattisgarh decided to keep quiet. Statements were converted into complaints and sent to the SHO with a request that you register an FIR. To this date, those FIRs on the basis of 16 or so individual complaints made have never been registered according to me. Where are those FIRs? There is no FIR, no chargesheet, no closure report that has been placed on record"
SG: "I wish my friend would not have said that nothing is there. Chhattisgarh has filed a status report that these are the number of FIRs, investigation is going on, that these are the chargesheets filed. It is a 12.4.2017 affidavit filed by the state of Chhattisgarh"
Justice Khanwilkar asked the SG to indicate to the bench the FIRs pertaining to the incidents of 17 September, 2009 and October 1, 2009.
Justice Khanwilkar to Mr. Gonsalves: "If it is not done, we will direct the registration of FIRs..."
The bench asked Mr. Gonsalves to show where the averments in the writ petition were repeated by the petitioners in their statements before the district judge.
Mr. Gonsalves: "Please see the nature of the questions and the answers- 'You know for what purpose you have been brought here?'- 'A person from my family had died and that is why I am here'...'You know for what purpose you have come here?'- 'I have come to make a statement about the killing of my son'...(continuing to read from the record of the statements) 'I would not be in a position to identify the assailants, there was open fire from the jungle'..."
Justice Khanwilkar: "Nobody is doubting that there was a firing and people died. Where is that statement made that the police came into my house and killed me? All you say before the district judge is that somebody is coming from the jungle, assaulting and going back to the jungle. Your petition makes specific averments, but nothing of that sort before the district judge? Nobody said that somebody coming in police uniform did it?"
Mr. Gonsalves: "They have not made a statement that the security forces attacked them...they were brought from Chhattisgarh to Delhi by the security forces. They were produced before the district judge by the security forces. When they finished, they were sent back with the security forces..."
Justice Khanwilkar: "For the registration of FIRs with regard to statements made before the district judge, we can direct that. But if you want something more, there has to be some material, it cannot be unsubstantiated"
When the bench, rising for lunch, said it will continue the hearing on Wednesday at 2 PM, Mr. Gonsalves prayed that he had some difficulty.
Justice Khanwilkar: "This is a 2010 matter. We cannot keep pending such matters for years to come. This is a serious matter- there are allegations against police, it is serious also for the people who suffered. You should know your priorities. We will hear tomorrow at 2. We would have continued today only if we did not have a special bench at 2 today"
Case Title: Himanshu Kumar & Ors. v. Union of India & Ors.

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