Plea Seeking Independent Probe Into Alleged Extra-Judicial Executions of Tribals in Chhattisgarh: Supreme Court Reserves Judgement

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"

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..."

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!"