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Destroying the evidence: time-tested tactic that protects powerful perpetrators

11 Feb 2016


Kin of the victims of the Hashimpura massacre in Meerut                                  Zakia Jafri

Nine years after the massacre of young Muslims in Hashimpura, allegedly by the members of the Provincial Armed Constabulary (PAC), in arguably India’s largest incident of custodial killing, where officers of the notorious Provincial Armed Constabulary (PAC) shot dead 42 persons from the Muslim community, crucial evidence was destroyed. Acquittals resulted in 2015, 28 years after the incident; the trial court made sharp observations about the  deliberately lackadaisical and shoddy investigation. The UP Sessions Court acquitted all the 16 accused despite firsthand accounts from survivors of the incident. The judgment had raised, among other things, critical and serious questions about the efficacy of our state institutions in dealing with cases involving minorities. 

Nine days ago, on February 2, 2016,The Hindu reported that the Uttar Pradesh police destroyed documents that could have helped to prove the involvement of the Provincial Armed Constabulary (PAC) personnel in the Hashimpura massacre of 1987, even while the trial was still pending. A letter written by the Senior Superintendent of Police (SSP) of Meerut, a copy of which is with The Hindu, reportedly shows the documents were “weeded out” on April 1, 2006." In the letter to the Crime Branch of the State Crime Investigation Department (CID), the SSP said it was now impossible to make available documents related to the deployment of the PAC personnel on the day that the massacre was allegedly carried out. The matter was being heard in a Tis Hazari court at time the documents were destroyed.  The letter gave no reason for the documents being weeded out. 

Tampering with evidence and Destruction of Evidence is a Violation of Indian criminal law. Rarely however do, investigating agencies responsible technically for bringing perpetrators to book, ever, in charge sheets prosecute those who are responsible for the destruction and tampering with evidence.

The law on destruction of records and tampering with evidence is succinct. Section 204 of the Indian Penal Code deals specifically with the crime of ‘destruction of document or electronic record’ to prevent its production as evidence. The Gujarat Police Manual is even more pointed, making those officers liable to be penalised for the criminal act(s).
 
Documents have disappeared and there is evidence of tampering of evidence by the very agencies involved in preliminary investigations,  related to the 2002 carnage in Gujarat.  Even while the Supreme Court was taking cognisance of the petition by several legal rights groups, including the Citizens for Justice and Peace (CJP) filed before the Supreme Court on May 2, 2002, the Gujarat Government had no qualms about destroying records related to the critical period.

What were the kind of records that vanished?
Original Police Control Room & Vehicle Log Books of Senior Officials and Public Servants, Wireless Intercepted Messaged, Confidential Reports (all of which would have been critical to assess the real time response of senior and ground level officials of the police and administration to the incidents of widespread Violence were among other critical documents that were destroyed, according to admissions by the Government of Gujarat. These records were destroyed (according to the investigation documents accessed in the Zakia Jafri case) on March 31, 2008. The SIT under RK Raghavan had been appointed only five days before these acts of destruction on March 26, 2008 !

There is more. On January 17, 2007, while serious matters related to allegations of faulty investigation were pending before the Supreme Court, according to letter by Joint Commissioner of Police (CP), Sector II, G.K. Parmar given in the course of the hearing of the Gulberg trial, on an application made for further investigation by the victims and witnesses, he has stated (and this on the record of the trial court hearing the matter) that “as the final date of preserving the copies of the control room… January 2000 to December 2005 is passed....these documents...have been destroyed on January 17, 2007”.

Shockingly, the SIT under Raghavan, has not investigated how such destruction could have taken place, even while the Supreme Court was seized of the matter from May 2002 onwards.  Another letter from the Gujarat police in the Gulberg trial also states that even the photographs taken of the Gulberg carnage site have been destroyed. This had happened before the trial has even begun! The SIT has simply ignored these acts which are offences under the law.

Missing Documents from the SIT record
In January 2010, while the Zakia Jafri complaint was still being investigated, under supervision of the Supreme Court, by Investigating officer and member of the SIT, startling revelations were made. AK Malhotra,Malhotra told the Supreme Court of India that several documents were missing and hence this was hampering the investigation. The report by AK Malhotra, submitted to the Supreme Court,states the following:

AK Malhotra’s Report to the Supreme Court dated May 12, 2010:

“Though, this inquiry had the mandate of the Hon’bIe Supreme Court of India, several difficulties/constraints were experienced in the enquiry, some of which are given below.

  1.  The police wireless messages for the year 2002 were not made available by the Government of Gujarat as the same had been reportedly destroyed.
  2.  No record/documentation/minutes of the crucial law & order meetings held by Government during the riots had been kept.
  3.  Some of the public servants, who had retired long back, claimed loss of memory as they did not want to get involved in any controversy.
  4.  The other category of public servants, who have recently retired and provided with good post-retirement assignments, felt obliged to the State government and the present Chief Minister and therefore their testimony lacks credibility.
  5.  The serving public servants, who have been empanelled for the higher posts, did not want to come into conflict with the politicians in power and incurred their wrath which affected their frank response.
  6.  Those public servants considered upright by the complainants and cited as a witness in their support, confirmed various controversial incidents/events, yet they did not attribute the same to their transfers/postings to insignificant posts.”
Despite this candid admission, the SIT investigation has failed to pin blame on who is responsible for violating the law. A crucial question is whether it was a mere coincidence that these records were destroyed even though the Supreme Court of India were hearing a batch of petitions challenging the integrity of investigations in the nine major trials by the Gujarat police. The Zakia Jafri complaint that attempts to pin criminal and civil liability on persons in political and administrative posts was also then pending before the Supreme Court at the time when these documents were destroyed. The SIT has not interrogated this issue at all and the agency, headed by RK Raghavan has been remarkably lenient while dealing with the issue of the destruction of evidence.

Next week, on February 18 and 19, 2016, the Gujarat High Court will resume hearing on the criminal appeal filed by Zakia Ahsan Jafri against the closure report filed by the Special Investigating Team (SIT) on February 8, 2012. The closure report was first challenged by Zakia Jafri, assisted by the Citizens for Justice and Peace (CJP) in a Protest Petition filed on April 15, 2013. It took the complainant victim survivor over a year to access the Investigation papers that the SIT did it’s best to resist sharing with the complainant, despite explicit orders of the Supreme Court dated September 11, 2011 and thereafter December 10, 2012 and February 7, 2013. After nine months of arguments through 2013, the Magistrate rejected the Zakia Jafri Protest Petition through an order passed on December 26, 2013. Eight days later, a fabricated FIR was filed by the Crime Branch of the Gujarat police against Tanvir Jafri, son of Zakia and Ahsan Jafri, Teesta Setalvad, Javed Anand and Feroz Gulzar Pathan.

Despite these efforts to obstruct the course of public justice, the criminal revision application (Nos 205/2014) was filed in March 2014. Several other technical delays related to translations etc ensured that the hearings in the appeal began only in August 2015. Through April-July 2015, all out efforts were made by state and central agencies –now under a new political dispensation- to coerce and intimidate Teesta Setalvad and Javed Anand and the organisations they represent.

Despite these obstructionist efforts, Zakia Jafri, aided by CJP will address the Gujarat High Court from next week onwards, arguing for a rejection of the SIT’s closure report as also the launch of prosecutions against powerful accused. The road to justice has been laced with dangers and hurdles that may yet need to be overcome.

Destroying the evidence: time-tested tactic that protects powerful perpetrators


Kin of the victims of the Hashimpura massacre in Meerut                                  Zakia Jafri

Nine years after the massacre of young Muslims in Hashimpura, allegedly by the members of the Provincial Armed Constabulary (PAC), in arguably India’s largest incident of custodial killing, where officers of the notorious Provincial Armed Constabulary (PAC) shot dead 42 persons from the Muslim community, crucial evidence was destroyed. Acquittals resulted in 2015, 28 years after the incident; the trial court made sharp observations about the  deliberately lackadaisical and shoddy investigation. The UP Sessions Court acquitted all the 16 accused despite firsthand accounts from survivors of the incident. The judgment had raised, among other things, critical and serious questions about the efficacy of our state institutions in dealing with cases involving minorities. 

Nine days ago, on February 2, 2016,The Hindu reported that the Uttar Pradesh police destroyed documents that could have helped to prove the involvement of the Provincial Armed Constabulary (PAC) personnel in the Hashimpura massacre of 1987, even while the trial was still pending. A letter written by the Senior Superintendent of Police (SSP) of Meerut, a copy of which is with The Hindu, reportedly shows the documents were “weeded out” on April 1, 2006." In the letter to the Crime Branch of the State Crime Investigation Department (CID), the SSP said it was now impossible to make available documents related to the deployment of the PAC personnel on the day that the massacre was allegedly carried out. The matter was being heard in a Tis Hazari court at time the documents were destroyed.  The letter gave no reason for the documents being weeded out. 

Tampering with evidence and Destruction of Evidence is a Violation of Indian criminal law. Rarely however do, investigating agencies responsible technically for bringing perpetrators to book, ever, in charge sheets prosecute those who are responsible for the destruction and tampering with evidence.

The law on destruction of records and tampering with evidence is succinct. Section 204 of the Indian Penal Code deals specifically with the crime of ‘destruction of document or electronic record’ to prevent its production as evidence. The Gujarat Police Manual is even more pointed, making those officers liable to be penalised for the criminal act(s).
 
Documents have disappeared and there is evidence of tampering of evidence by the very agencies involved in preliminary investigations,  related to the 2002 carnage in Gujarat.  Even while the Supreme Court was taking cognisance of the petition by several legal rights groups, including the Citizens for Justice and Peace (CJP) filed before the Supreme Court on May 2, 2002, the Gujarat Government had no qualms about destroying records related to the critical period.

What were the kind of records that vanished?
Original Police Control Room & Vehicle Log Books of Senior Officials and Public Servants, Wireless Intercepted Messaged, Confidential Reports (all of which would have been critical to assess the real time response of senior and ground level officials of the police and administration to the incidents of widespread Violence were among other critical documents that were destroyed, according to admissions by the Government of Gujarat. These records were destroyed (according to the investigation documents accessed in the Zakia Jafri case) on March 31, 2008. The SIT under RK Raghavan had been appointed only five days before these acts of destruction on March 26, 2008 !

There is more. On January 17, 2007, while serious matters related to allegations of faulty investigation were pending before the Supreme Court, according to letter by Joint Commissioner of Police (CP), Sector II, G.K. Parmar given in the course of the hearing of the Gulberg trial, on an application made for further investigation by the victims and witnesses, he has stated (and this on the record of the trial court hearing the matter) that “as the final date of preserving the copies of the control room… January 2000 to December 2005 is passed....these documents...have been destroyed on January 17, 2007”.

Shockingly, the SIT under Raghavan, has not investigated how such destruction could have taken place, even while the Supreme Court was seized of the matter from May 2002 onwards.  Another letter from the Gujarat police in the Gulberg trial also states that even the photographs taken of the Gulberg carnage site have been destroyed. This had happened before the trial has even begun! The SIT has simply ignored these acts which are offences under the law.

Missing Documents from the SIT record
In January 2010, while the Zakia Jafri complaint was still being investigated, under supervision of the Supreme Court, by Investigating officer and member of the SIT, startling revelations were made. AK Malhotra,Malhotra told the Supreme Court of India that several documents were missing and hence this was hampering the investigation. The report by AK Malhotra, submitted to the Supreme Court,states the following:

AK Malhotra’s Report to the Supreme Court dated May 12, 2010:

“Though, this inquiry had the mandate of the Hon’bIe Supreme Court of India, several difficulties/constraints were experienced in the enquiry, some of which are given below.

  1.  The police wireless messages for the year 2002 were not made available by the Government of Gujarat as the same had been reportedly destroyed.
  2.  No record/documentation/minutes of the crucial law & order meetings held by Government during the riots had been kept.
  3.  Some of the public servants, who had retired long back, claimed loss of memory as they did not want to get involved in any controversy.
  4.  The other category of public servants, who have recently retired and provided with good post-retirement assignments, felt obliged to the State government and the present Chief Minister and therefore their testimony lacks credibility.
  5.  The serving public servants, who have been empanelled for the higher posts, did not want to come into conflict with the politicians in power and incurred their wrath which affected their frank response.
  6.  Those public servants considered upright by the complainants and cited as a witness in their support, confirmed various controversial incidents/events, yet they did not attribute the same to their transfers/postings to insignificant posts.”
Despite this candid admission, the SIT investigation has failed to pin blame on who is responsible for violating the law. A crucial question is whether it was a mere coincidence that these records were destroyed even though the Supreme Court of India were hearing a batch of petitions challenging the integrity of investigations in the nine major trials by the Gujarat police. The Zakia Jafri complaint that attempts to pin criminal and civil liability on persons in political and administrative posts was also then pending before the Supreme Court at the time when these documents were destroyed. The SIT has not interrogated this issue at all and the agency, headed by RK Raghavan has been remarkably lenient while dealing with the issue of the destruction of evidence.

Next week, on February 18 and 19, 2016, the Gujarat High Court will resume hearing on the criminal appeal filed by Zakia Ahsan Jafri against the closure report filed by the Special Investigating Team (SIT) on February 8, 2012. The closure report was first challenged by Zakia Jafri, assisted by the Citizens for Justice and Peace (CJP) in a Protest Petition filed on April 15, 2013. It took the complainant victim survivor over a year to access the Investigation papers that the SIT did it’s best to resist sharing with the complainant, despite explicit orders of the Supreme Court dated September 11, 2011 and thereafter December 10, 2012 and February 7, 2013. After nine months of arguments through 2013, the Magistrate rejected the Zakia Jafri Protest Petition through an order passed on December 26, 2013. Eight days later, a fabricated FIR was filed by the Crime Branch of the Gujarat police against Tanvir Jafri, son of Zakia and Ahsan Jafri, Teesta Setalvad, Javed Anand and Feroz Gulzar Pathan.

Despite these efforts to obstruct the course of public justice, the criminal revision application (Nos 205/2014) was filed in March 2014. Several other technical delays related to translations etc ensured that the hearings in the appeal began only in August 2015. Through April-July 2015, all out efforts were made by state and central agencies –now under a new political dispensation- to coerce and intimidate Teesta Setalvad and Javed Anand and the organisations they represent.

Despite these obstructionist efforts, Zakia Jafri, aided by CJP will address the Gujarat High Court from next week onwards, arguing for a rejection of the SIT’s closure report as also the launch of prosecutions against powerful accused. The road to justice has been laced with dangers and hurdles that may yet need to be overcome.

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