The Supreme Court on Wednesday reserved the judgment on a 2009 plea for an independent investigation into alleged incidents of extra-judicial executions of tribals in Chhattisgarh.
On Tuesday, Senior Advocate Colin Gonsalves, for the petitioner, had advanced before the bench of Justices A. M. Khanwilkar and J. B. Pardiwala, "The killing was pointed out by the petitioner (no. 1- Himanshu Kumar) 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". Justice Khanwilkar had asked SG Tushar Mehta to indicate to the bench the FIRs pertaining to the incidents of 17 September, 2009 and October 1, 2009. Justice Khanwilkar had assured Mr. Gonsalves, "If it is not done, we will direct the registration of FIRs..."
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. The bench on Tuesday had asked Mr. Gonsalves to show where the averments in the writ petition (about the gruesome assaults and killings by the police, security forces of the family members of petitioners no.s 2-12) were repeated by the petitioners in their statements before the district judge. Mr. Gonsalves had responded, "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 had then observed, "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 had submitted, "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 had remarked, "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"
On Wednesday, the SG told the bench, "This public-spirited person yesterday had said no FIRs are there. It was his duty to find out. FIRs were filed, chargesheets are there. Affected parties or victims are also FIR informants. This clearly shows that petitioner number one is litigating, the rest (petitioners 2-12) have only only lent their names, they are not there"
Justice Khanwilkar to Mr. Gonsalves: "If an FIR is registered, it is investigated by local police, we will assume that if you are not convinced by the investigation, you would file a protest petition against the closure report. In either case, now you cannot be raising a grievance. Take us through any documents that you want, but all that was available to you even then, you should have produced it in those proceedings. Did you do that is the question"
Mr. Gonsalves: "No FIR, no chargesheet was given to us"
Justice Khanwilkar: "The point is an FIR is registered, you are the complainant, you stepped in as witness in those proceedings. Now you say you are not aware? This is ipse dixit. Can we accept this? You are appearing before the court, you are the petitioner before us. You may keep saying this but this does not become the correct position in law. FIR is registered at your instance,, you are the complainant in that FIR. If you were not the complainant, we can understand. But the petitioner himself was the informant. The Informant also has the right to file a protest petition. Did you bring it to the notice of that court then? If you are the informant, you must be the witness in those proceedings. How can you say no FIR was served on you?"
SG: "Their statements are recorded. From where is he arguing? In 2010, the central government mentioned the FIR before your lordships!"
Mr. Gonsalves: "How do we know that?"
Justice Khanwilkar: "At the highest level, we cannot countenance this kind of an argument coming from a public spirited person. You have to be very specific with regard to your allegations. You are so proactive as a petitioner that you came to Delhi to file this. But in that court, where you are appearing on a day to day basis?
Mr. Gonsalves: "No. I don't even know that the chargesheet is filed. How will I know if it is not given to me?"
Justice Khanwilkar: "Please make some argument which can be entertained. What kind of argument is this? Please don't trivialise the whole matter"
Mr. Gonsalves: "I made a complaint that uniformed persons from a certain camp, thana, had done all that. I took the name of that camp. They changed it to say 'naxalite'. I never said that. I was never taken for test identification parade. They don't come to my village to take evidence"
Justice Khanwilkar: "That offence has been investigated. The manner in which it has been done, that it is also there"
Mr. Gonsalve: "I have not been given any paper of any kind"
Justice Khanwilkar: "That is not the basis on which we can go on entertaining PILs"
Justice Pardiwala: "Investigation was carried out. Chargesheet has been filed. Now since the chargesheet has been filed, the investigating agency must have found some substance that an offence is committed. Now in the chargesheet, in column number two, 10 accused have been named and shown as absconding. Who are these ten? Now you are the first informant, you have the right to tell the court that the chargesheet is filed and that I am the first informant, I must have a copy of the chargesheet. And the court cannot decline to give you the chargesheet. The chargesheet must have been filed before the magistrate. The magistrate has to commit the case under 209 (Cr. P. C.). It must have been committed, culminating into a special case. Since they are absconding, non-bailable warrants have been issued. As the first informant, you have to pursue the matter before the trial court now"
Mr. Gonsalves: "We are not only praying for the matter to be investigated, but investigated by an independent agency. What is the point of having it investigated by Chhattisgarh police"
Justice Pardiwala: "You want the investigating agency to be changed even in a case where chargesheet has been filed? Why do you want a further investigation by CBI?"
Justice Khanwilkar: "Then the process is a different process, not PIL. You have to go as informant, participate in those proceedings and ask for whatever directions you want there. Also, for that, you have to point out in the chargesheet- how it is incorrect. And that has to be done before that court, not here"
Justice Khanwilkar: "Your complaint is not final. Your statement has been recorded by the district judge in Delhi as directed by us. You have to say something in the statement. From that statement, where is that case made out for transfer to CBI?This whole petition has been questioned as regards your involvement as petitioner number one. That is the problem before us now. You have to deal with it"
Mr. Gonsalves: "They were never asked the important questions- they were never asked what were the assailants they dressed in, what camp they came from. Tribals are tribals. They will only answer the question asked and not a word more. You ask them 'who was killed in your family', and that was answered"
Justice Khanwilkar: "They all say that the assailants came from the jungle"
Mr. Gonsalves: "We said in the complaint that they came from Injaram camp. We know who these people are. Even if today we are taken to the camp, we will identify these officers"
The bench asked the SG to confirm if the petitioners had been brought in for a test identification parade.
Justice Khanwilkar to Mr. Gonsalves: "If you have participated in the identification parade, then it is a serious situation. Then we will deal with this argument appropriately. You cannot be allowed to take the time of this court like this. You keep up conjuring something, that is not how we go ahead. This is a serious matter. You came here with a serious allegation against the whole administration. Now you are moving application that I don't trust the investigating agency..."
SG: "Now he says after 12 years that he doesn't trust the judge!"
Justice Khanwilkar: "Mr. Gonsalves, the SG is right, if you had any grievance then, the matter was listed in 2010, you should have immediately brought it to the notice of this court. The matter remains pending and because it remains pending, now you can develop any kind of argument. You should then only have said that my statement is recorded but these questions are not posed which is the allegation in the petition, that only limited questions were posed. The court would have sent you back to the same district judge to record that statement. Now you want to take advantage of your own failure by not filing a protest petition, by not participating in the process before the magistrate, by not coming to this court in 2010. This would be a case of abuse of process. We cannot have multiple forums engaged in one allegation"
Justice Khanwilkar: "Please take instructions. If you were involved in the test identification parade, then it is a serious matter. We will take into account everything then. We are putting you to notice"
Justice Khanwilkar: "In the guise of public spirit, you are targeting somebody else. That is the allegation against petitioner 1, the so-called NGO activist"
Mr. Gonsalves: "The petitioner has done nothing wrong..."
Justice Khanwilkar: "No, no, no, he has done nothing wrong- there is the issue of defalcation of one crore rupees as stated on affidavit in 2012 (On Tuesday, the SG had submitted that the petitioner no. 1- Himanshu Kumar- has stated in paragraph 2 of the writ petition that he is the director of Vanavasi Chetna Ashram. The SG had indicated that Ashram is the same organisation to which foreign contributions had been suspended by the central government, that there was an issue of defalcation of Rs. 1 crore and that Kumar had only tendered an apology as regards the unaccounted money)"
Mr. Gonsalves: "He has put on affidavit that this is a wrong statement made. His Gandhi Ashram was destroyed. 16 people are killed in these incidents. What about justice?"
Justice Khanwilkar: "Don't talk about justice. Is this justice or abuse of law? The incident is not denied by them, how it is portrayed is hinted as being questionable by them. We are putting to you questions as to what you did in those proceedings (before the trial court), you are not answering the question! The FIR no.s are there! What did the petitioners do from 2010 when affidavits were filed by the other side? We are questioning the petitioners?"
Mr. Gonsalves: "Petitioner number one was thrown out of the area. He had to go to Himachal in exile, his Ashram was destroyed. The other petitioners are there, but they are frightened. Your Lordships may let me, I will go to the petitioners and record their statements"
Khanwilkar: "When the criminal proceedings are going on, you don't go and participate there. But you keep coming here and keep beating the same drum"
Mr. Gonsalves: "...life is like that, if the Chhattisgarh police doesn't change...if they don't want to investigate..."
Justice Khanwilkar: "Yes, life is like that...this statement applies both sides, it is not one-sided"
Mr. Gonsalves: "I am not int in revenge against these people, I am in your lordships hands, if something happened to my family members, it happened...let him (SG) think about the CBI investigating...that is why when I looked at the petition, I said make a neutral prayer about the CBI...we only did not want a state agency...I did not have the foresight to have them asked more questions when they were here. He was a very fair judge, he did a very cryptic thing. My fault- I should have said that 'maybe, Sir, you should ask more questions and get the whole picture out'"
Mr. Gonsalves: "If your lordships are not inclined to direct investigation by CBI..."
Justice Khanwilkar: "That is because that allegation has not been made good by you, by your statement before the district judge, by filing the protest petition"
Mr. Gonsalves: "We have no faith in Chhattisgarh (state investigating agencies)...though now the situation is much better..."
Justice Khanwilkar: "If the situation is so much better now, then trust the police which has made it so much better. Those officers who were there at that time might not be there. Can you say that the whole of the police is like that?...On the ground level, it is the political dispensation that matters, not judicial orders. It is only the local police that are able to do that..."
Justice Pardiwala: "Perhaps the highest authority in the state can do it..."
SG: "(indicating the statements as recorded by the district judge) They said that some people came from the jungle. The question was, 'Can you identify them?'. They replied, "No, we cannot identify them". It was not a truncated or cryptic thing before the judge. Petitioner no. 1 knew that everything was videographed and that his bluff was caught, that is why kept quiet all these years!"
Case Title: Himanshu Kumar & Ors. v. Union of India & Ors.