Investigation | SabrangIndia

Zakia Jafri case: Petitioner asks for an investigation

Wed, 27 Oct 2021 06:33:36 +0000

Image Courtesy:oneindia.com

On October 26, the Supreme Court began hearing a Special Leave Petition filed by Zakia Ahsan Jafri and Citizens for Justice and Peace. Zakia Jafri is the wife of slain congress leader Ahsan Jafri who was brutally murdered in the Gulberg massacre of 2002.

Senior Counsel Kapil Sibal, appearing for the petitioners highlighted the main grievance that arises from the closure report filed by the Special Investigation Team (SIT) that failed to take into account, the important evidence related to the case. Senior counsel Sibal said, “SIT was already in seizure of several facts which it did not look at all while filing its closure report…”

He further gave a background to the court that the petitioners had first filed an exhaustive complaint dated June 8, 2006 to the then Director General of Police, PC Pande. The complaint that ran into over 100 pages outlined the contours of a widespread conspiracy that, in the petitioners’ views contributed to the perpetrated violence that broke out in the state from February 27, 2002 onwards, the day of the tragic Godhra mass arson. The complaint has annexed 200 pages of evidence garnered from affidavits filed by serving officers of the state government. Evidence thereafter collated from 24,000 pages of the SIT Investigation records (in 2013) starkly corroborated this evidence.

Senior counsel Kapil Sibal argued that the Magistrate and the revisional court (the High Court) were duty bound to take cognisance of the offence committed in the State, but they didn’t. He said, “The duty of the court…that’s the central question the lordships will have to decide…once the Magistrate receives information which according to us constitutes an offence, the Magistrate is duty bound to not only look at the information but also take cognisance of the offence.” Hence, the SIT’s decision whether an offence was committed or not is irrelevant, he argued.

He further stated that back on June 8, 2006, the complainant had filed a complaint addressed to the DGP, Gujarat wherein the complainants had categorically alleged that there was a wide-ranging conspiracy afoot that led to the collapse of the law-and-order situation in Gujarat after the Godhra train burning incident. In the said complaint, the petitioners stated that the political establishment and the bureaucracy were complicit in the carnage through overt acts and through omission of statutory duties.

He argued that the evidence in the matter that was part of official records was neither looked at by the SIT, nor the Magistrate and the Gujarat high court. “All we want is that our matter is looked at…if you don’t investigate, just file a closure report, where do we go?”, said senior counsel Sibal. ‘This Republic is too great to deny a person justice,” he stated.

The materials referred to by the counsel involve the records of the state intelligence bureau (SIB), the police exchanges and control rooms (PCR), documents, “If you don’t investigate, don’t look at this, file a closure report and that is accepted, where do we go?”, argued Mr. Sibal.

He further argued that the SIT also didn’t take into consideration the procedure and statements made before Justices (retd.) Hosbet Suresh, PB Sawant. Over the Court’s inquiry upon the reasoning given by the Magistrate to ignore this evidence on record, Sibal said, “The Magistrate stated that he’ll not look into anything else and will stick to the complaint filed by Zakia Jafri. His logic is simple, he is not concerned with any of this.”

Mr. Sibal added, “My lords, our case was that there was a larger conspiracy at play, where there was bureaucratic inaction, police complicity, hate speech and a conspired directed unleashing of violence. The Magistrate said I won’t look at it because the supreme court prevents me from doing that and only look at the Gulberg society case.”

He argued that the investigation, the SIT’s report was not only limited to the Gulberg society massacre but the entire state of Gujarat, including all complaints filed at that time. Sibal vehemently posed that if the purpose of the SIT was to investigate the reason behind the violence of 2002, they should have taken every evidence into consideration. Reading out extensively from the first Inquiry Report filed by former CBI DIG, AK Malhotra before the Supreme Court (2010) and thereafter the closure report (2012) he detailed how the SIT itself had never restricted its inquiry/investigations only into Gulberg.

“I must have a remedy in law, what is that remedy? The magistrate doesn’t look at it, sessions court doesn’t look at it! The high court doesn’t look at it…Where will anyone go? I’m giving you official evidence and taking you through it. Because of police inaction, people were massacred.”

He pressed that the report of the SIT involved all kinds of crimes that were committed in Gujarat during the anti-minority violence and if this was not considered in its entirety, the rule of law will be threatened. He said, “If we limit it only to Gulberg, what happens to rule of law, what happens to all material? A Republic stands or falls on the basis of what the court does!”

The court will continue to hear the matter on October 27.

Background of the SLP

In 2018, CJP had filed the SLP seeking clarification of the gross anomalies in the judgements of both lower courts (Magistrate and Gujarat High Court) that are both legal and on the facts of this case.

In the present SLP, the petitioners have argued how, the order of the Gujarat HC records that the Magistrate has considered the Closure Report of the SIT and found no substance in the complaint of the Petitioner dated June 8, 2006. Thereafter the Court erroneously goes on to say that the Magistrate provided detailed grounds for not accepting the Protest Petition of Ms Jafri. This, in our submission, is factually incorrect.

It is our case that the Magistrate wrongly held that it was beyond the scope of his powers to direct further investigation. Besides, key and vital issues placed before the Magistrate, detailing our case and making out a sound and substantiated case of criminal conspiracy and abetment, we argue, have been not duly considered by the Magistrate or the High Court.

In the present case before the SC the petitioners (we) argue that it will be abundantly clear from a close perusal of the Protest Petition that the Ms Jafri has substantiated further acts of a larger conspiracy by detailing evidence about the prelude and build-up of a volatile atmosphere prior to February 27, 2002, the post mortems being conducted in the wide open in violation of statutory provisions, no preventive arrests and delayed implementation of curfew in Ahmedabad despite widespread violence from February 27, 2002 onwards, among other issues.

Besides, we argue that, an analysis of Police Control Room (PCR Records) shows Dereliction of Duty by First Responders. The conspiracy, as constructed in the Protest Petition also provides proof of:

misreporting and misleading constitutional and statutory authorities
destruction of records relating to Minutes of Meetings, Police Logbooks, Wireless Messages by those at the helm of power in 2002.

It is on these issues as also on the conscious and erroneous clubbing of the Zakia Jafri complaint with the single incident at Gulberg society (that took place on February 28, 2002 and according to us is just one of 300 incidents and one link In the wider conspiracy) that the lower courts have erred and we seek correction and remedy.

Brief Background of the Zakia Jafri case

Zakia Jafri is the widow of Congress MP Ahsan Jafri who was brutally murdered in the Gulberg Society massacre that took place on February 28, 2002 during the post-Godhra genocide in Gujarat. Zakia and Ahsan were sheltering their neighbours from a violent mob during the attack. Ehsan stepped out to plead with the mob for mercy for the people he was sheltering. He willingly sacrificed his own life in the process as the blood thirsty mob tortured and lynched Ahsan Jafri to death. Zakia Jafri, his widow, is no doubt a survivor of this individual incident of pre-meditated violence.

The Zakia Jafri case is a unique and unprecedented litigation that attempts to pin responsibility for the Gujarat 2002 carnage on the people who were in power at the time… people who failed to prevent the spread of violence, and may have done so deliberately. Often confused with the Gulberg Society case, mainly due to the persistence of powerful perpetrators to conflate the two, in a possible bid to derail justice, the Zakia Jafri case is a mammoth legal exercise aimed at holding accountable the architects of a vile and despicable conspiracy. While Zakia Jafri is the prime mover in the case, CJP through its Secretary Teesta Setalvad is the second petitioner. It was CJP that has, since the filing of the complaint in June 2006, assisted the first petitioner in galvanising the entire material that led up to the filing of the Protest Petition in 2013 and thereafter the Criminal Revision Application in 2015. From 2014, Setalvad and her partner Javed Anand became the target of the first attack by the newly elected regime at the Centre for their consistency in trying to bring survivors of the 2002 carnage to justice.

The Gulberg Society case is distinct from the Zakia Jafri case. While the former deals only with the massacre that took place at Gulberg Society, the latter seeks to pin criminal and administrative liability –as also trace command responsibility — for the approximately 300 incidents over 19 districts that made up the shocking genocidal carnage in Gujarat in 2002.

First complaint (dated June 8, 2006)

On June 8, 2006 Zakia Jafri filed an FIR against 63 people for offences punishable u/s 302 r/w 120-B, of the Indian penal Code with sections 193 r/w 114 IPC, 186 & 153 A, 186, 187 of the Indian Penal Code and u/s Section 6 of the Commission of Inquiry Act; The Gujarat Police Act and The Protection of Human Rights Act [PHRA], 1991. The FIR filed by Zakia Jafri named not only the then Chief Minister of Gujarat and his close associate, who has since then gone on to hold powerful positions such as President of the political party that is in power at the center and Union Minister of Home Affairs, but also several other powerful people including top ministers, MLAs, leaders of right wing supremacist groups, top IAS and IPS officers, and other powerful office bearers in the state’s bureaucracy.

The entire complaint may be read here.

However, this complained did not get any response, forcing Zakia Jafri to file a petition in the Gujarat High Court praying that her complaint be treated as First Information Report (FIR) so that investigation into the wider conspiracy behind the Gujarat riots may begin. But the High Court dismissed this directing Zakia to file a private complaint, a tedious and complicated option.

SLP – 1088 of 2008

This is why Zakia Jafri moved Supreme Court via a Special Leave Petition (1088 of 2008) filed against the impugned judgement and order passed on November 2, 2007 by the Gujarat High Court. The SLP 1088 of 2008 may be read here. Following this the Special Investigation Team (SIT) constituted to look into the Gujarat Riots cases was also directed by Supreme Court to investigate the claims in this SLP via an order passed on April 27, 2009.

The Supreme Court first appointed noted legal luminary Prashant Bhushan as the Amicus Curiae, but he was later replaced with Raju Ramchandran. Ramachandran was tasked with ensuring that the SIT investigation into the matter was headed in the right direction and conducted in accordance with provisions of the law. The Amicus Curiae filed the following two reports:

Interim Report by Amicus Curiae

Final Report by Amicus Curiae

SIT Report

The SIT also filed its Preliminary Report dated May 12, 2010. The SIT Closure Report dated February 8, 2012 may be read here:

Volume 1

SIT Closure Report Volume 1 Page 1 to 100

SIT Closure Report Volume 1 Page 101 to 200

SIT Closure Report Volume 1 Page 201-270

Volume 2

SIT Volume 2 Page 271-370

SIT Volume 2 Page 371-458

SIT Volume 2 Page 459-541

The SIT Report in case of the killing of Ehsan Jafri was shocking to say the least. Not only did they state that the Call Data Records of Ehsan Jafri were not available, they also blamed Jafri for instigating the violence by discharging a fire arm, towing the Chief Minister’s “action causing reaction” line! There were several other instances of shoddy investigation and glaring lapses.

The SIT filed a Closure Report in 2012, without giving an audience to Ms Jafri as is her legal right. Thereafter she had to petition the Supreme Court again in a fresh SLP.

SLP – 8989 of 2012

This SLP was filed to acquire the full and complete investigation records, reports and documents. The SIT, that had been clearly directed by the Order of the Supreme Court to supply all documents and reports related to the Investigation, in effect resisted and delayed matters to such an extent that between February 8, 2012, when its final report was filed, and February 7, 2013, when the Supreme Court finally directed that all reports should be provided to the Complainant, a year had passed!

This led Zakia Jafri and CJP to file a Protest Petition on April 15, 2013.

Protest Petition

In the petition Zakia prayed,

That in deciding the Protest Petition the Hon‘ble Court has to exercise its Independent mind on the Final Report submitted by the Investigating Agency. The Court is not bound by the conclusions drawn by the Investigating Agency. The Court has to look at the material to satisfy itself whether prima facie it is a case for taking cognizance of the offence. The material has to be looked at, not from the angle that it is sufficient for conviction but that the material is sufficient for proceeding with the case. The Court cannot adjudicate on the material to find out whether an offence is made out or not, which is the domain when the trial starts and evidence is led by the parties.”

The two parts of the Protest Petition may be read here:

Protest Petition PART I

Protest Petition PART II

It is only after that order of the SC in February 2013, that the CJP legal team analysed close to 23,000 pages of documents that became the basis of the detailed construct and narrative of the Protest Petition. It is through this Protest Petition that the Petitioner has drawn out the lacunae in SIT’s investigation and constructed a more comprehensive and prima facie case for large conspiracy, abetment, dereliction of duty by First Responders and Hate Speech, which in the Petitioner’s opinion, is squarely made from the documents on record.

This Protest Petition was heard over 18 hearings. However, the petition was dismissed on December 26, 2013, when Magistrate Ganatra accepted the SIT Report and rejected the relief sought by Zakia Jafri.

Gujarat HC Judgement

On October 5, 2017, Hon’ble Justice Sonia Gokani delivered a judgement that once again set in motion Zakia Jafri’s quest for justice. In, her judgement Justice Gokani observed:

It is one thing to say that it is agreeable with the report of SIT and hence, chooses not to direct further investigation. But, to say that in the given circumstances, it does not possess such powers is caring under the awe of events that led the SIT to directly look into the complaint.

Learned Metropolitan Magistrate Court was directed to consider the final report by the Apex Court in its final order and determine whether the collection of evidence compiled with the report of SIT and the Protest Petition cull out a case of lodgment of an FIR, by even explicitly stating the powers to direct further investigation and hence, to that extent, the conclusion drawn is in contravention of established legal principles.”

The court ruled:

… this revision application deserves to be SUCCEEDED PARTLY and the order of the learned Metropolitan Magistrate dated 16.12.2013 deserves interference to the extent the trial Court held and selflimited itself of its not having powers of further investigation.”

The entire judgement may be read here.

More details about the Zakia Zafri case, concerns raised and legal points made, may be read here.

What is the Zakia Jafri Case?

Gujarat Genocide: Mystery of the ‘Clean Chit’

Advocate Mihir Desai explains how the SC dealt with the Zakia Jafri Case

Adv Mihir Desai talks about the Evidence Unearthed in the Zakia Jafri Case

Adv Mihir Desai explains the Legal Technicalities in the Zakia Jafri Case

The post Zakia Jafri case: Petitioner asks for an investigation appeared first on SabrangIndia.

Delhi Violence: Courts call Delhi Police’s investigation ‘callous, inefficient, indolent and lackadaisical’

Mon, 06 Sep 2021 08:59:30 +0000

Image courtesy: Gym burnt down in Shiv Vihar. Photo by Banswal Hemant via Wikimedia Commons.

A few years ago, the top court of our country had observed the prejudicial and biased approach adopted by the investigative agency in the Best Bakery Case, where the tiny outlet was burnt down on March 1, 2002 by a violent mob in motivated retaliation to the Godhra train mass arson. After a series of roadblocks – hostile witnesses, intimidation, demand for a re-trial, appeals – the Supreme Court Bench of Justices Doraiswamy Raju and Arijit Pasayat made some notable observations that went on to shape the jurisprudence on State accountability.

In Zahira Habibullah H. Sheikh and Ors vs State of Gujarat and Ors. (2004) 4 SCC 158, a case spearheaded by CJP’s efforts, the court ordered a re-trial, outside the state of Gujarat while ruling that not just the justice delivery system was taken for a ride, but the investigation was “perfunctory”, “impartial”, and the evidence was not brought before the court with any seriousness or meticulousness.

In paragraph 68 of the judgment, the Division Bench had said:

“Criminal trials should not be reduced to mock trials or shadow boxing or fixed trials. Judicial criminal administration system must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution”.

Almost 16 years later, a similar kind of segmentation haunts us. The real darkness on the horizon after the pan-India anti Citizenship Amendment Act (CAA), 2019 protests, was the ravaging North East Delhi violence that killed 53 people and left more than 200 injured. The hasty enactment of the 2019 amendment to citizenship laws (December 9 and 11, 2019) is a poignant reminder of the ruling dispensation’s motive: exclusion and authoritarianism.

The State has since tried to manipulate the narrative by calling the demonstration communal, instead of the legislation that aims to provide citizenship to only non-Muslims from the neighbouring countries of Pakistan, Afghanistan and Bangladesh. Senior Counsel Trideep Pais, the counsel for youth leader, Umar Khalid was cogent in his arguments before the district court when he called out the Delhi Police’s special cell that falsely portrayed the anti-CAA protests as a “secular façade”. The protests were an organised effort for inclusion, an attempt to assert identity and belong to the country. But the State deflected attention and manipulated public opinion by deliberately trying to confuse protests with ‘planning a riot’.

A vast array of Indians, whose politics the government may not agree with, found their names in the Delhi violence conspiracy chargesheet. They were charged under the anti-terror law. One year later, eighteen are still incarcerated, and very few are out on bail. The Delhi Police, that come under the Union Home Ministry, have named and arrested student activists from only two universities, Jamia Millia Islamia and Jawaharlal Nehru University (JNU), and also some teaching faculty members of JNU, Delhi University to assert that there was an attempt to subjugate the government established by law, violently.

Indian courts have tried to dissect this chilling message, to some extent. Though verdicts have come after a whole year of being held under a manipulated process and a draconian law, the district courts and most recently the Delhi High Court has questioned the Delhi Police’s probe into the violence of February 2020. Perhaps this will help in re-shaping public discourse, that protestors are not “Islamic extremists”, “urban naxals”, and “anti-nationals”, and bring to the fore, a conversation on how citizens must and need to hold the state accountable.

Let us analyse some judgments for this purpose:

“Callous and indolent investigation”- ASJ Vinod Yadav

September 2, 2021: On September 2, the Additional Sessions Judge Vinod Yadav discharged three accused- Shah Alam (26), Rashid Saifi (23), Shadab (26) from the case FIR number 93 of 2020, on the basis of two complaints alleging that a shop was burnt, attacked and looted during the violence. (State vs Shah Alam and Ors, Sessions Case Number 68 of 2021).

The court noted that the trial in the violence case has not begun, and accused persons have been languishing in jails for over a year. He said, “The police seem to be still busy filing supplementary chargesheets therein. The precious judicial time of this Court is being wasted in giving dates in those cases…where there is hardly any investigation carried out by the police.”

The court expressed its anger at the fact that the three accused were neither specifically named in the FIR, nor a particular role was assigned to them. This was followed by the observation that, “The sort of investigation conducted in the instant case and the lack of supervision thereof by the superior officers clearly depicts that the investigating agency has merely tried to pull the wool over the Court’s eyes and nothing else.”

The court observed that the case appeared to have been solved merely by filing this charge sheet “without any real effort being made to trace out eye witnesses, real accused persons and technical evidence”. ASJ Yadav also reportedly said, “When history will look back at the worst communal riots since partition in Delhi, it is the failure of the investigating agency to conduct a proper investigation by using the latest scientific methods, which will surely torment the sentinels of democracy.”

It blamed the senior officers for their “callous and indolent investigation”, which also was a criminal waste of the taxpayer’s money and time!

“Vague evidence and general allegations”-Justice Subramonium Prasad, High Court

September 3, 2021: On September 3, the Delhi High Court granted bail to five accused persons- Mohd. Arif, Shadab Ahmad, Furkan, Suvaleen and Tabassum in the alleged murder of Head constable Ratan Lal, and for causing head injuries to the DCP during the violence in February last year. Justice Subramonium Prasad rejected the arguments of the Delhi Police regarding the accused persons’ call data records, their clothes during the committing of the alleged crime, and the available CCTV camera footage. (Mohd. Arif vs State, Bail App. Number 774 of 2021).

He held that the video footage placed before the court that shows the accused person at the crime scene is inconclusive, as they are not explicitly visible in the same. He also observed that there is no evidence that was placed on record that could corroborate the contention that the accused Mohd. Arif had damaged the CCTV cameras. He said, “merely being caught staring at a CCTV camera right before its dislocation by a co-accused cannot form the basis of this assumption.”

Justice Prasad did record in his judgment that it is “egregious and against the principles enshrined in our Constitution” to allow an accused to remain languishing behind bars during the pendency of the trial, and that bail is the rule and jail is the exception. But the principle came to apply on to the accused after 17 months of incarceration!

“Callous, inefficient, unproductive investigation”- ASJ Vinod Yadav

In the case State vs Rohit, Sessions Case No. 202 of 2021, the district court went on to frame charges against accused Rohit on the basis of a complaint made by one Anwar Ali regarding vandalising, looting and burning his house down by a mob.

The court observed that there was enough ocular evidence in the form of supplementary statements of complainant and public witnesses in order to frame charges against the accused, with no help from the Police.

“Their statements cannot be brushed aside/discarded at this stage, merely because there has been some delay in recording of their statements or the complainant(s) have not specifically named them in their initial written complaints….It is worth noting that investigation in the matter appears to be highly callous, inefficient and unproductive; however, as noted earlier this Court at this stage, cannot ignore the statements of victims dehors the delay in recording of FIR in the matter”, noted ASJ Vinod Yadav.

“Delhi Police itself does not know the details of the investigation”- ASJ Amitabh Rawat

August 25, 2021: On August 25, a shocked Additional Sessions Judge, Amitabh Rawat said, “This leads to a conclusion that though the case is being investigated by the police, the police did not itself know that they were investigating the case and when told came to realize that it is investigating the matter, the details of which they do not know. Since the police did not themselves know that they were investigating the case, the natural corollary is they could not have informed the Court or the complainant/ respondent about the same.”

He passed this order in a review petition filed by the Police against the lower court’s order. The court seemed perplexed at Delhi Police’s conduct which did not know about clubbing of a complaint, filed by the respondent Saleem who alleged an attack on his house during the carnage with another FIR of the same incident.

It was noted that the complaint was lodged in March 2020 however, the Delhi Police realised of having clubbed the same with another FIR only in November that year, i.e., after a lapse of 8 months (State vs Salim, Crl. Revision Number 102 of 2020).

“Pained to see the lackadaisical attitude of the Police”- ASJ Vinod Yadav

Haji Hashim Ali had alleged that on February 25 last year, a mob had put on fire two LPG cylinders lying inside the Madina Masjid, resulting in an explosion and thereby causing substantial damage to the Masjid. Furthermore, it was alleged that one person from the mob climbed on the top of Madina Masjid and hoisted a saffron flag atop it by chanting communal/religious slogans.

Meanwhile, an FIR was registered by Police on the basis of a written complaint by one Naresh Chand alleging that a riotous mob had caused damage to his house. Ali was arrested in the FIR and was subsequently granted bail. After being released on bail, Ali had made a written complaint to the Delhi Police in June 2021 where his complaint was clubbed with the FIR in which he was an accused and the Police did not register a separate FIR on his complaint.

But during the hearing before Judge Vinod Yadav, he was apprised by the Delhi Police that a separate FIR was already lying registered regarding the Masjid arson and it was also stated that the grievance of Ali was duly redressed in the matter.

In this backdrop, Judge Yadav called out the Police for their “callous attitude/negligence”. He said, “This Court is quite pained to see the lackadaisical attitude adopted by the investigating agency in the matter…..The investigating agency was duty bound to have apprised the learned ACMM (North-East) of the entire facts and place complete material before it, which admittedly has not been done.” (State vs Haji Hashim Ali, Crl Revision No. 7 of 2020)

Remote links to the main crime

Faizan Khan, an employee of a mobile shop allegedly sold a SIM card without verification in December 2019 for Rs. 200. This cost him three months of his life and terrorism charges as he was arrested under the UAPA FIR 59/2020 on July 29, 2020. The Police alleged that someone else’s’ Aadhaar card and photograph was submitted by the subscriber to purchase the SIM card from Faizan, and this mobile number was allegedly used by the media team of Jamia Coordination Committee headed by co-accused Safoora Zargar to create WhatsApp groups to coordinate anti-CAA protests.

Justice Suresh Kumar Kait of the Delhi High Court granted him bail in October last year, after noting that the onerous conditions/embargo under Section 43D (5) of the UAPA would not be applicable to him since the investigating agency’s status report did not disclose the commission of offences under UAPA, except for bald statements of the witnesses. This is how casually the Delhi Police invoked UAPA. Faizan was not even part of the protests that was alleged to be a plot to defame India! (Faizan Khan vs State NCT of Delhi, Bail App. No. 2725 of 2020)

The Delhi Police accepted that Faizan was not part of any “illegal activity”, nor did he have active knowledge that the SIM card he sold was for an “unlawful purpose”. There was also no proof on record such as CCTV footage, video or chats of Faizan with any of the group except the allegation that he provided SIM on fake ID in December 2019. But he is in for a long haul to free his name from UAPA charges.

His case is a classic example of the way the Delhi Police under the Centre has played its ubiquitous corrosive politics, manipulating democratic institutions. The Police has picked up remote links to incriminate people over FIRs and charge sheets running into thousands of pages.

Planted witnesses, conveniently placed constables

Irshad Ahmed, an associate of jailed Tahir Hussain (who is the main accused in UAPA FIR 59), was granted bail by the High Court on October 7, last year. Despite lack of electronic evidence such as CCTV footage or photos to implicate Ahmed, he spent 8 months in jail before getting bail. As per statement of constables Pawan and Ankit, who were eyewitnesses and were present at the spot of crime, they had identified Irshad and Tahir Hussain for “throwing petrol bombs on the houses of Hindu community.”

However, Justice Suresh Kait noted that the police constables did not make any complaint on the date of the incident (February 25), and filed the FIR only on February 28. “Thus, the said witnesses seem to be planted one”, he observed. (Irshad Ahmed vs State NCT of Delhi, Bail App. No. 2696 of 2020)

On May 29, 2020, in the case Firoz Khan vs State, Bail App. No. 945 of 2020, Justice Anup Bhambhani of the Delhi High Court dismissed the statement of Vikas, a police constable who claimed to have witnessed an act of burning down a shop during the violence. The informant had apprised the court that though he had contacted the police control room when his shop was being attacked by the mob, there was no immediate response. The Court was in a conundrum as to why the informant contacted the PCR if constable Vikas, who claimed to be the eyewitness, was right there at the spot.

Justice Bhambhani remarked, “Even on first blush, it is not understood as to why the complainant would say that he failed to reach the police by telephone, if Constable Vikas was already present there.”

Similarly, on October 10, 2020, in Mohd. Rehan vs State NCT of Delhi, Bail App. No. 2849 of 2020, Justice Kait granted bail to Rehan accused of rioting, after noting that the statements of Constables Pawan and Vikram were recorded as eyewitnesses whereby, they identified Rehan but they did not make any DD entry make a PCR call on the day of the incident. The alleged incident took place on February 25 whereas the FIR in the case was registered on March 4.

There is no doubt that unprecedented terror and repression was unleashed by the nexus of our rulers, the executive forces they dominate, and the media. In the painstakingly long process of obtaining bails, discharges, acquittals and dismissals, it is now time for courts to pin the focus on the role played by the government and its branches when we witness a mass scale catastrophe like this. Will there be ultimate accountability and a reckoning?

Nineteen months have gone by since the devastating Delhi violence, many remain incarcerated at the risk of damage to their reputation, but hate mogers like Ragini Tiwari and Kapil Mishra roam free. Is it because their hate speech of “kaat dalo” (kill them) and “shoot the traitors” doesn’t count as violent hate speech or they enjoy the patronage of the government? Does this kind of use of provoking mobs into mass violence and terror not count for the ‘law and order machinery’ under the ministry for home affairs?

One common thing observed in all three bail orders dated June 15, 2021, of UAPA accused students Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha were that there was “no prima facie evidence” against them to invoke this anti-terror law. The court observed and rejected the idea of the State which repeatedly urged that what was contemplated and in fact brought to fruition was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi.

The Bench of Justices Siddharth Mridul and Anup Jairam Bhambhani perused the chargesheet and all the materials against them and said that the allegations made against them are not even borne-out from the material on which they are based. In Natasha’s case, the court remarked, “The State cannot thwart the grant of bail merely by confusing issues.” (Natasha Narwal vs State of NCT of Delhi, Crl. App. No. 82/2021).

These judgments are no doubt pertinent counterweights offered by the judiciary in our political climate where the regime has tried its best to delegitimise resistance. Nonetheless, the narrative of how and why the investigation agency faltered and the tools that should be used as a deterrent to bar such recurrence should have penetrated mainstream media and public discourse yesterday. Our state cheerleaders have made some grave mistakes over the past few months, and such subverters of constitutional values must be questioned.

SHO and DCP failed in supervisory duty – CMM Arun Kumar

In the matter of FIR 130/2020 where the accused were charged with rioting and unlawful assembly, the court of Chief Metropolitan Magistrate sought an Action Taken report, as the trial was being adjourned for filing supplementary chargesheet. The court observed that the SHO Gokulpuri police station and DCP (NE) were being absolutely evasive as if they are not aware of the status of the investigation.

“I deem it appropriate to report the matter to Commissioner of Police, Delhi so as to bring the conduct of the SHO PS Gokal Puri and DCP (NE) to his notice in as much as they are failing in their supervisory duties despite receipt of copy of last order of this court and are trying to avoid taking any responsibility in the matter by not concluding further investigation in the present matter despite repeated directions causing delay in trial despite the fact that all the four accused in the present case are in JC for over a period of almost one year,” the court said in its September 9 order. (State vs. Babu@Sahil CR Case No. 795/2020)

Lackadaisical attitude in investigation – CMM Arun Kumar

The CMM court, on September 6, directed Delhi Commissioner of Police to take action to ensure proper investigation in riots cases. On September 1 as well, the court had pulled up Delhi Police for its conduct of filing supplementary chargesheets and failing to ensure conclusion of investigation due to which the court was unable to go ahead with trial.

“Last and final opportunity is accordingly given to the State to do the needful in the matter for filing of supplementary chargesheet positively within a period of three weeks from today, failing which, the Court shall proceed further with the matter without giving any further opportunity to the State in this regard particularly in view of the fact that the accused is running in J/C for over a period of almost one year,” the court said. (State v. Dinesh Yadav @Michael CR Case No. 1274/2020)

No steps taken for proper prosecution – CMM Arun Kumar Garg

In CR Cases 1494/2020, CMM Arun Kumar Garg observed that the public prosecutor remained absent for the hearing of this cases since many hearings and despite repeated calls on September 17 and several pass over requests, neither the police nor the prosecution was able to assist the court in the matter.

“Such lackadisical approach on the part of the prosecution as well as the Investigating Agency in riots cases has been repeatedly brought to the notice of not only the DCP North East and Joint CP Eastern Range but has also been brought to the notice of the Commissioner of Police, Delhi. However, no steps for proper prosecution of the cases seem to have been taken by either of them and if taken, have not yet been brought to the notice of this Court. The aforesaid failure on the part of said police officers to take appropriate measures for prosecution of riots cases is causing avoidable delay in committal/trial of riots cases,” the court observed.

The court directed a copy of the order to be sent to DCP NE, Joint Commissioner of Police Eastern Range, Commissioner of Police Delhi as well as to Lt. Governor of Delhi and asked the Commissioner of Police to ensure that DCP NE remains present before the court on the next hearing (October 1) failing which the court shall be constrained to pass an appropriate order as per law which includes imposing adjournment costs on the State with a further direction to deduct the same from the salary of the officers. (State v. Rohit CR Cases 1494/2020)

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Delhi Violence case: Court discharges 3 accused citing shoddy investigation

Fri, 03 Sep 2021 04:03:20 +0000

Image Courtesy:thenationofnewss.com

A Sessions Court in Delhi while discharging offences against AAP MLA Tahir Hussain’s brother Shah Alam and two others, reprimanded Delhi Police for its shoddy investigation into the Delhi riots case.

Vinod Yadav, Additional Sessions Judge at the Karkardooma District Courts, was quoted by Bar and Bench as saying, “I am not able to restrain myself from observing that when history will look back at the worst communal riots since partition in Delhi, it is the failure of investigating agency to conduct proper investigation by using latest scientific methods, will surely torment the sentinels of democracy.”

The court discharged Shah Alam, Rashid Saifi and Shadab who were accused of rioting, unlawful assembly and theft. The court observed that the case was being solved only on the basis of the chargesheet and no real effort was being made by the police to trace the eye witnesses or the real accused or any technical evidence. The court pointed out that for over a year and a half, the accused have been languishing in jails as their trials had not begun, and the police keep filing supplementary chargesheets.

The court, further commenting on the investigation said that no effective investigation was being carried out and there was lack of supervision from the senior officers. “After investigating this matter for so long, the police has shown up only five witnesses in the matter; one is the victim, other is Constable Gyan Singh, one Duty Officer, a formal witness and the Investigating Officer,” observed the judge as per Bar and Bench.

The court even went on to comment that the case was a “colossal wastage of tax payers money, without there being real intent of investigating the matter”. The court also questioned how only these three accused were identified amidst a mob of 150-200 people.

The court relied upon several precedents before observing that if the court is satisfied that the evidence does not give rise to grave suspicion against the accused, the Court is within its right to discharge the accused.

Further, the court also questioned why the police witness constable Gyan Singh did not report the matter diligently, and waited until March 3 to give his statement against the accused. The court pointed out that Gyan Singh’s delay is fatal to the investigating agency and it gives an impression that he was planted to solved the case in hand, reported Bar and Bench.

The court added, “This court cannot permit such cases to meander mindlessly in the corridors of judicial system, sweeping away precious judicial time of this court when the same is open and shut case”.

Giving a holistic view, the court also pointed out that in the aftermath of the riots, about 750 cases were registered and around 150 cases have been received by this court for trial and out of these in 35 cases only charges have been framed. “A lot of time of this court is being consumed by the cases like the present one where there is hardly any investigation carried out by the police,” the court said as per LiveLaw.

Observing, the shoddy investigation and lack of supervision in the same, the court found it prudent to discharge the three accused in the case of their offences registered under FIR 93/2020.

The complete order may be read here:

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Delhi Cantonment rape case: AIDWA demands action against police for alleged ‘silent complicity’

Mon, 09 Aug 2021 05:54:33 +0000

Image Courtesy:indianculturalforum.in

The All India Democratic Women’s Association (AIDWA) on August 6, 2021 demanded an investigation against police officials for their alleged “silent complicity” in the gang-rape of a minor girl from the Valmiki community in Delhi’s cantonment area.

After meeting the girl’s family, a delegation led by Brinda Karat, AIDWA Delhi General Secretary Asha Sharma and Dalit Shoshan Mukti Manch leader Nathu Prasad appealed that the Delhi government revise its former compensation of Rs. 10 lakhs to the family. They demanded that the family be assisted in terms of rehabilitation, protection and legal recourse.

The Valmiki community has historically suffered caste discrimination. The victim of the Hathras sexual assault incident that shook the country last year was part of this community as well. Moreover, much like in the Hathras incident, here too, the 9-year-old girl’s body was forcibly cremated against her family’s will in Purana Nangal village. On the day of the incident, the girl went to get water from a cooler at the nearby crematorium.

There, the girl met the group of accused which included the crematorium priest. On learning of her fate, the girl’s parents went to the cremation ground with over a hundred villagers. The family lamented her death and unapproved cremation.

“What is even more shocking is that the priest claimed that the girl was cremated with her mother’s consent. This is a white lie, because the delegation learnt that in that particular village, young girls are buried and not cremated,” said AIDWA General Secretary Mariam Dhawale.

Further, the mother said the priest warned her not to report the crime and stick to the narrative that she was electrocuted while getting the water. Meanwhile, the Delhi Police detained the parents and allegedly manhandled the father instead of arresting the accused, said the AIDWA. Officials delayed the registration of an FIR against the four accused. Finally, they caved under the growing dissent by villagers.

“There are attempts to shield the culprits by the Delhi police, as is usually the case in incidents of violence against women,” said Dhawale.

After the cremation, only parts of the victim’s body were left. The doctors panel of Deen Dayal Upadhyay hospital said it is difficult to ascertain whether or not the girl was sexually assaulted.

The AIDWA denounced the role of the Delhi police in this incident and condemned the deafening silence of the Union Home Minister, who leads the city police. Members also condemned the Union Information and Broadcasting Minister’s insensitive comment about the crime being ‘politicised.’

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Delhi court orders for fair probe into riots complaint case closed by the police

Mon, 30 Nov 2020 11:53:46 +0000

Image Courtesy:indianexpress.com

The court of Metropolitan Magistrate (MM), Delhi has ordered the police to register an FIR and conduct a fair investigation into the riots case where the police had closed the probe, despite video evidence against the alleged accused. (Salim v State and Ors I.D. No. 1119 of 2020)

The MM, Fahad Uddin said, “In the facts and circumstances of the present case, this Court deems fit to direct the SHO PS Jafrabad to register an FIR at the earliest under the appropriate sections of law on the basis of the allegations made in the Complaint by the present Complainant and to ensure that a fair, independent and impartial investigation is made on the Complaint filed by the Complainant in the present case and a final report is filed thereof without delay.”

He also directed the Deputy Commissioner of Police (DCP) concerned to “ensure registration of FIR by SHO Police Station Jafrabad as directed by the Court and monitor the investigation being carried out by the SHO Police Station Jafrabad in the present complaint.”

Background

On November 23, the MM Fahad Uddin was hearing a matter pertaining to Salim, a resident of Yamuna Vihar who alleged that on February 24, 2020, his neighbours Subhash and Ashok Tyagi open fired and attacked his house and that another neighbour Nasheer was shot. He had filed an application under section 156(3) of the Code of Criminal Procedure, seeking directions for registration of FIR on the allegations made by the Salim/complainant.

The complainant Salim also said that his neighbours pelted stones and threw patrol bombs on the roof of his house and in order to save his life, he left the house. The Complainant asked for help but no police personnel arrived at the spot.

The court of the MM also noted that a written complaint was filed on March 1 with the Station House Master, Jafrabad Police Station and further to the DCP on March 17 but no action was taken. The Complainant also stated to have video recordings of the said incident and has submitted the same before this Court in the form of a pen drive along with a certificate under section 65 B of the Evidence Act.

But the Police informed the court that there are already certain FIRs registered against Salim as mentioned in the report of the Investigating Officer and that him and his family members were allegedly involved in the criminal acts during the Communal riots. The Police further said that Salim has been arrested for the same and that a false complaint is made by him to save himself. Hence, no cognizable offence seems to have been made out on the basis of the complaint filed by the complainant Salim.

Court’s observation

The court was not convinced with the police submissions and said, “a cognizable offence is made out on the basis of the allegations made in the Complaint by the present Complainant and the offences alleged of requires to be investigated by the police.”

“Further the allegations made in the Complaint are serious in nature and pertain to the protection of right to life and property of the Complainant. The equal protection of laws cannot be denied to the Complainant merely on account of registration of certain FIRs against him as mentioned in the reply of the IO and on the assumption of the IO that the complaint is false and made to save the Complainant and that too without even registering an FIR and conducting an independent and impartial investigation into the allegations made by the Complainant”, he added.

Hence, the court of Metropolitan Magistrate Fahad Uddin noted, “Such a conclusion/finding can be arrived at by the investigating agency only after an FIR is lodged on the complaint of the complainant and a fair, independent and impartial investigation is carried out by the police into the offences alleged to be made out in the Complaint against the alleged offenders.”

The order may be read here:

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Citizens speak up against flawed investigation into the February 2020 Delhi riots

Fri, 11 Sep 2020 05:44:36 +0000

Image Courtesy:indianculturalforum.in

Many more voices are rising to protest the flawed investigations and attempts at fanning conspiracy theories about the February 2020 communal riots of North East Delhi. Many are now realising that Delhi Police has been attempting to criminalise the democratic protest against the Citizenship Amendment Act-National Register of Citizens-National Population Register (CAA-NRC-NPR), and blaming those who participated for instigating the communal riots of North East Delhi.

Scores of activists have been arrested, jailed, and more are regularly called in for questioning on their participation in the anti-CAA-NRC-NPR protests, even in investigations on cases related to the communal riots. However, none of the political leaders whose controversial speeches are a matter of public record, have even been mentioned in any official investigation. None of the politicians have even been called for questioning, or asked to join any ongoing investigation into the riot cases.

Activists such as Harsh Mander, Kawalpreet Kaur, Umar Khalid, Prof Apporvanand, etc have continued to raise their voices, even though they have all claimed to face tough questioning by the Delhi Police. They have put in front of the people, facts that lay bare the attempts at creating conspiracy theories, and steering the narrative of the sequence of events in another direction.

The activists have come forth and established the Forum for Constitutional Rights and Democratic Freedoms (FCRDF) in August, 2020, after discussion among its Principal Members, comprising both individuals and organisations, all representing different constituencies. Concerned with the erosion of Constitutional rights and democratic freedoms in the last few years, they have come together on a common platform to stem the tide.

The groups represented are:

a) several Armed Forces Veterans
b) the Mazdoor Kisan Shakti Sangathan (MKSS) representing people’s organizations of the poor and disadvantaged
c) the Constitutional Conduct Group (CCG), made up of former civil servants
d) civil society organisations and concerned citizens
e) the Indian Cultural Forum, deeply involved with cultural issues.

They have issued their first statement of solidarity. This is the full text:

“We write to express our full support, in principle, for the statement ‘We will not be silenced’ made by Harsh Mander on September 4, 2020. We agree with him that the communal riots in Delhi in February 2020 have not been caused by any conspiracy as alleged by the Delhi Police. On the contrary, they have been caused by the hate speech and provocative statements made by a number of political leaders of the ruling party.

We stand with Harsh Mander, him, Professor Apoorvanand and their fellow activists. Neither their voices nor ours will be silenced as we speak for truth and freedom. The ringing words of Harsh Mander’s statement, especially those of the last paragraph, bear repetition and have our endorsement: “We declare here – and hope those holding highest office in the country hear us loud and clear – that the government will never succeed in silencing us, and will never succeed in taking away from us the dream we inherited from our freedom struggle, the dream of together building a country which is just, and equal, and kind.”

It has been signed by eminent citizens such as: Admiral (retd.) L. Ramdas, former Chief of Naval Staff; Aruna Roy, Mazdoor Kisan Shakti Sangathan (MKSS); Deb Mukharji, IFS (Retd.), former High Commissioner to Bangladesh, CCG; Dr. Ganesh Devy, civil society organizations and concerned citizens; Githa Hariharan, writer, Indian Cultural Forum.”

The following is the statement made by activist Harsh Mander:

“We will not be silenced

The Delhi Police believes that there was a conspiracy behind the communal violence in Delhi during the third week of February. We agree. But the actual conspiracy was a very different one from the one which Delhi Police is propagating. The truth is that not just the Delhi 2020 carnage; no major episode of communal violence is spontaneous: it is always planned, organised and facilitated.

Such violence requires first the systematic creation of hatred. In Delhi we saw the build-up during the Delhi elections of a climate of hatred spawned by hate speech by senior leaders targeting the protestors against CAA NRC NPR. This was led from the front by the union home minister, the chief minister of Uttar Pradesh and several other cabinet and BJP party leaders. The outcome was the spread of unprecedented levels of toxic communal venom, unmatched in any previous election in Delhi.

But beyond the manufacture of hatred and the organization of the violence, the critical factor in any riot conspiracy is the role of the state, and particularly the police. No riot can go on for more than a few hours except if the government wishes for it to do so.

There is massive evidence of the complicit partisan role of the police in the Delhi violence. I have spent a lot of time with the victim survivors of the Delhi carnage. I have heard hundreds of testimonies from them about the role of the police enabling, encouraging and actually indulging in hate violence.

The video of policemen tormenting four young men lying on the ground, among who Faizan subsequently died, is telling. The police while beating the men prone on the ground are taunting them by asking them to sing the national anthem; it was clear that they are punishing them for the protests, in which the national anthem had become an iconic symbol of the protests, of resistance, of unity and of solidarity.

This was the conspiracy behind the Delhi communal violence. It was a bid by the Indian state, aided by the Delhi police, to punish and crush the largest non-violent protests that independent India has seen.

The police story is quite the opposite. According to them, it was the anti-CAA-NRC-NPR protests which were the conspiracy, and that the non-violence of the protests was only a facade.

In pursuit of this story, every day the Special Branch of the Delhi Police, which normally investigates grave crimes like terror, is busy for the past months summoning mostly young people, and sometimes seniors, grilling them, intimidating them, and sometimes – as Umar Khalid has testified – forcing them create false evidence.

Large numbers of young people are today languishing in prison for months without bail in the name of this so-called conspiracy.

We are gathered here today above all in the defence and solidarity with all of these young people. Yes, they and we did participate in the non-violent movement against CAA NRC NPR, and we are proud to have done so. During the protests some WhatsApp groups were made. Now every word exchanged in these groups is being examined with a defective microscope by the police, their meaning and context deliberately and mischievously misinterpreted, the truth ripped into shreds and reimagined to create the mythology of a conspiracy of hate, violence and insurrection.

There were significantly other WhatsApp groups that the police themselves admit to, wherein indeed people are actively calling for and organizing the violence on those dates. None of these are being the subject to any investigation of a conspiracy.

Our protests, and those of the young people now in our prisons, were to uphold the Constitution, and the idea of an inclusive and humane country of equal citizenship, which is the proudest legacy of our freedom struggle.

The young people and we protested because we love our country dearly, and we seek to make this country better for all its citizens, of every religion, caste, class and gender, by holding the state accountable to stand by its duties to the constitution. It is a travesty to describe this as a crime against the nation. Those who are seeking to create divisions and hate among us are those who are committing crimes against our country.

The objective of the government is transparent; to destroy the basic guarantees and freedoms of our constitution. The effort of the Indian state, facilitated by the Delhi Police, is to crush our voices, our dissent, and our struggles to uphold our constitution.

We declare here – and hope those holding highest office in the country hear us loud and clear – that the government will never succeed in silencing us, and will never succeed in taking away from us the dream we inherited from our freedom struggle, the dream of together building a country which is just, and equal, and kind .”

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What Happened to Tax Investigations on Ambanis?

Thu, 03 Oct 2019 06:47:59 +0000

A letter written by former civil servant and activist E A S Sarma to the Cabinet Secretary has urged that investigations into certain companies in the Reliance group be broadened. Where do these enquiries stand now?

For several years, a clutch of companies in the Mukesh Ambani-headed Reliance group have been under the scanner of a slow-moving multi-agency investigation by the government of India. At the centre of one of the main strands of the investigation is the D-6 natural gas block in the Krishna-Godavari basin off the coast of Eastern India that Reliance Industries Limited – the Reliance group’s flagship company – operates together with British Petroleum, and a cross-country pipeline that carries gas from the Andhra Pradesh coast to Gujarat, which is operated by group company, East West Pipeline Limited.

A number of apparently unconnected developments in recent months – the arrests in the Netherlands of three executives of a private company, the arrest in New Delhi of former Union Finance Minister Palaniappan Chidamabarm, together with an allegedly hushed-up tax notice served on Mukesh Ambani, his wife, and their three children under the recently promulgated Black Money Act, 2015 – have renewed attention to the subject of scrutiny by the government’s revenue authorities of the taxes paid by India’s richest man and the sprawling corporate conglomerate he heads.

In a letter written to Cabinet Secretary Rajiv Gauba on September 15, former Secretary, Economic Affairs, Ministry of Finance, and activist, E A S Sarma, has called for a widening of the scope of the investigation with more government agencies being brought into the fold.

As reported earlier by one of this article’s authors, an important background player in the recent saga related to the arrest of Chidambaram in the INX Media case was none other than the Reliance group. Chidambaram was arrested after allegations were levelled that in his capacity as Union Finance Minister, he had illegally approved foreign direct investment in the INX Media group by three Mauritius-based companies and that kickbacks were paid to companies associated with his son, Karti, who is currently Lok Sabha Member of Parliament from Sivaganga, Tamil Nadu, belonging to the Congress.

The Reliance connection is that at the time these transactions took place, through investments hidden behind a elaborate corporate veil, East West Pipeline Limited in its earlier avatar, Reliance Gas Transportation Infrastructure Limited (RGTIL), had financed the purchase of the INX Media-owned 24-hour English television news channel, News X, and facilitated the inflow of foreign investment. This had been claimed following an investigation by the Serious Fraud Investigation Office (SFIO) in the Ministry of Corporate Affairs in a draft report that one of these authors had made public in 2015.

The SFIO’s investigation stated that RGTIL was separated from its earlier ownership structure, where it was a subsidiary of a publicly-listed Reliance group company, to become a closely-held company owned by Mukesh Ambani directly in a “classic maneuvre”, ostensibly to cover up other transactions relating to the INX Media group.

The SFIO’s draft report alleged that behind an obfuscatory layer of holding firms, the Reliance group owned a significant portion of INX Media itself. In effect thereby, the group had arranged the ‘maneuvre’ to earn significantly via the inflow of foreign investment into its own subsidiary company without ever being identified as the beneficiary – or so it was claimed.

Biometrix Connection
In April 2019, three individuals were arrested in the Netherlands in connection with a case alegedly relating to the Reliance group. The three were former employees of the Dutch pipeline firm, A Hak NL. Investigators of the Dutch Fiscal Intelligence and Investigation Service, and Economic Investigation Service, alleged before a court that the three were involved in a scheme with RGITL to over-invoice costs in the pipeline project, thereby “creaming off” an estimated $1.1 billion (currently worth more than Rs 7,200 crore) in profits and parking them in a Singapore-based company named Biometrix Marketing Limited.

The Dutch investigators claimed that Biometrix was linked to Reliance. This development came as an unexpected corroboration of, and addition to, information about the same Singapore company that the Indian government had reportedly investigated over seven years earlier.

In February 2014, allegations relating to Biometrix, based on information available with the Indian government, had first been brought into the public domain by lawyer and founder-member of the Aam Aadmi Party (AAP), Prashant Bhushan, at a press conference in New Delhi.

Bhushan had quoted from a draft report prepared by the Comptroller and Auditor General (CAG) of India in 2011 that had alleged “gold-plating” or “over-invoicing” of capital costs of equipment imported by the Reliance group for use in the KG-D6 gas field, and connected it to a “commercial intelligence” report prepared by the Indian High Commission in Singapore on the unusually high amount of Rs 6,500 crore that had been obtained as a bank loan from the Singapore branch of the ICICI Bank by Biometrix and ploughed back into four Reliance group companies, including RGTIL.

Bhushan had suggested that the money obtained through over-invoicing had been “parked” in Biometrix and brought back into India through its “investment” in the four companies, an allegation that the group had rejected at that time.

The Income Tax Department has, at multiple junctures, made clear that an investigation into Biometrix is going on and that the government is seeking information on the firm – most recently in April 2018, when it was reported that the department had “widened” its probe into the Singapore company. The department had sought information from a number of foreign countries after it received a rap on its knuckles by CAG, which had argued that the department’s assessment of the Reliance group’s tax dues were inadequate.

It has earlier been reported by one of these authors that the Enforcement Directorate (ED), an agency of the Union Finance Ministry responsible for investigating violations of the Foreign Exchange Management Act and Prevention of Money Laundering Act, had recorded statements of Reliance group officials in relation to its dealings with Biometrix.

Despite such efforts though, the government’s actions on this probe have not tasted judicial success. One attempt by the Income Tax Department to declare a Rs 700 crore investment by Biometrix into Reliance Utilities Private Limited as income, and tax it accordingly, based on the report from the High Commission in Singapore and a subsequent enquiry by the department itself, was dismissed by the Income Tax Appellate Tribunal in February 2017.

While information gathered by the Indian government in the course of its investigation had established that Biometrix was part of the Reliance group itself, it had been separated from the group’s companies through a complex ownership pattern. Will the developments in the Netherlands represent the first concrete proof the Indian government might be able lay its hands on that would confirm if the Reliance group had parked funds obtained through over-invoicing in the Singapore company’s accounts?

The ED has reportedly sought the investigation report from Dutch authorities. A source familiar with the developments in the investigation told Newsclick on condition of anonymity that the ED should focus its efforts to collaborate with the Monetary Authority of Singapore and the Accounting and Corporate Regulatory Authority of Singapore that would have additional information on the company’s fund flows.

It is pertinent to note that Biometrix, which has invested more than a billion dollars into India, is no longer an active company in Singapore – having been struck off the company register with its bank loan having been repaid with money pumped into the company by the Reliance group itself. The source wondered if such conduct is typical of genuine institutional investors based abroad, that is, unless there is more to it than meets the eye.

Links with MoTech Software
The revelations in the Netherlands also have a link to another tax investigation relating to the Ambani family that is underway in the Income Tax Department. This investigation concerns foreign funds alleged to have been held by Reliance group companies through a firm named MoTech Software Limited, in Swiss banks. This allegation too was first made by Bhushan and Arvind Kejriwal (who is now Chief Minister of Delhi) in 2012 – at that time both the AAP founders were together under the banner of the India Against Corruption movement.

Thereafter, the allegations resurfaced in 2015 in the “Swiss Leaks” expose of documents leaked from the HSBC Bank by French-Italian whistleblower, Herve Falciani, and were confirmed last year by these authors to be the personal offshore assets of late Dhirubhai Ambani that were inherited by his sons, Mukesh and Anil, after his death in 2002.

On September 15, the Indian Express reported that a notice had been served on Mukesh Ambani, his wife and their three children under the Black Money Act on March 28 regarding their foreign assets amounting to around Rs 2,100 crore. A Reliance spokesperson denied the contents of an e-mail sent by the publication “including receipt of any such notice.”

The revelations in the Netherlands include the allegation that shell companies in tax havens that were used to re-route money siphoned off by over-invoicing to Biometrix, were founded by an individual named James Walfenzao, a financial management consultant and head of the Corpag group of companies that specialises in providing consultany services to high net worth individuals across the world seeking to park their funds in tax havens to avoid paying domestic taxes. This person had also been identified in the leaked HSBC documents as having played a facilitating role in managing Dhirubhai Ambani’s assets by means of a group of offshore companies.

Sarma Seeks Probe by Lokpal
Sarma’s letter to the Union Cabinet Secretary has sought his intervention to ensure the Biometrix case is made the subject of a coordinated investigation by the Central Bureau of Investigation (CBI) and the Directorate of Revenue Intelligence (DRI) along with the ED and the Income Tax Department, which are already seized of the different issues. He has urged that the probe be brought under the supervision of the newly-appointed Lokpal (or people’s ombudsman) to ensure it is completed in a time-bound manner. Sarma had made similar requests in the course of 2018 to the aforementioned agencies directly.

Similar efforts made by different activists in earlier years have seen little success. A public interest litigation (PIL) in this regard had been filed in the Delhi High Court in 2012 by journalist M Furquan. (This journalist appears to be a regular litigant seeking investigations into the working of large corporates, including Jet Airways and its former promoter Naresh Goyal – his PIL had led to the Bombay High Court ordering the preparation of a report by the Commissioner of Police, Mumbai, into Goyal’s alleged links with the underworld.)

In the Biometrix case, however, Furquan’s petition seeking a court-monitored investigation, was withdrawn by the petitioner himself in 2015 before hearings could conclude. A 2014 letter by Bhushan to the government’s Special Investigation Team on Black Money, formed in 2014 on the Biometrix and MoTech cases, saw little (and slow) action by government agencies. It remains to be seen whether the probe into these cases would be pursued.

Income Tax Investigations
The investigations that may expose the Reliance group’s companies to liabilities on untaxed earnings stem from two main lines of enquiry relating to Biometrix and MoTech.

The Biometrix investigation was started by the government in 2011. The relatively small company that was set up with an equity capital of 110,000 Singapore dollars, or roughly Rs 29 lakh, attracted the government’s attention when its investment of approximately Rs 6,500 crore into four companies in the Reliance group was ranked the single largest foreign investment into India from Singapore in 2007-08.

On a request by the Department of Industrial Policy and Promotion in the Ministry of Commerce and Industries, G T Venkateswara Rao, who was then First Secretary (Economic) at the Indian High Commission in Singapore, conducted an enquiry into Biometrix. His enquiry resulted in the preparation of a commercial intelligence report by the High Commission.

Rao’s enquiry found that Biometrix had been granted a loan of Rs 6,530.36 crore or $1.2 billion by the Singapore branch of the ICICI Bank in 2007 that was invested into the four Reliance group companies – RGTIL, Reliance Ports, Reliance Utilities and Relogistics Infrastructure – by subscribing to financial instruments called compulsorily convertible preferential (CCP) shares issued by them.

The enquiry unearthed the fact that Biometrix was, in fact, a company in the Reliance group. According to official records in Singapore, it was jointly owned by two companies – Strasbourg Holdings Private Limited and Reliance GeneMedix Plc. Strasbourg was owned by Atul Shantikumar Dayal – a Mumbai-based legal expert who was closely associated with the Reliance group – while Reliance GeneMedix was a subsidiary of Reliance Life Sciences Private Limited.

The loan to Biometrix by ICICI was secured by another Reliance group company named Ekansha Enterprises. Ekansha had entered into a “put and call option” agreement with Biometrix – guaranteeing that it agreed to buy the CCP shares held by Biometrix at a future date – and this agreement acted as security for the bank loan to Biometrix. As it turned out, subsequently, different Reliance group companies bought over the CCP shares from Biometrix and repaid the loan to the bank, after which the company was shut down and struck off the companies’ register in Singapore.

As far as the Reliance group is concerned, this was all there was to the matter. It produced an agreement before the Income Tax authorities that it had with the ICICI Bank’s Singapore branch, where the bank agreed to loan the amount for investment into the four Reliance group companies to a Special Purpose Vehicle company set up for the purpose in a “tax efficient jurisdiction.” It argued that Biometrix was set up according to this agreement, and its investment into India was bona fide.

In one instance, regarding the investment of Rs 700 crore into Reliance Utilities Limited by Biometrix, in 2013, the Indian tax authorities sought to tax this as income received by the company. The Reliance group appealed this argument and succeeded. In 2017, a panel of the Income Tax Appellate Tribunal accepted the Reliance group company’s argument and struck down the tax department’s attempt to assess the Rs 700 crore investment for levy of income tax.

The arrests in the Netherlands were allegedly for over-invoicing of materials and services supplied by the Dutch pipeline company, A Hak NL which, as a contractor for RGTIL for building a gas pipeline between 2006 and 2008, acted as an “invoice duplicator.” The prosecutor’s office that executed the arrests said in a statement that profits of about $1.2 billion were “creamed off” by A Hak International Contractors Asia through “four insurance companies” allegedly using false insurance contracts. Of this amount, the statement said, up to $1.1 billion were invested in two companies related to RGTIL.

The Indian Express reported that according to case details seen by it, the amount was later transferred to Biometrix through a web of transactions involving about 15 companies based in Dubai, the Caribbean and Switzerland among others. As already mentioned, the case details mentioned that some of these entities were owned by Walfenzao, who reportedly assisted the Reliance group in managing its offshore assets, according to leaked documents of the HSBC Bank.

While the Reliance group released a media statement denying any links to the Dutch case, Business Standard reported that the ED had sought a report on its investigation from the Dutch authorities.

If the government is serious about the probe – and many doubt that it is – it would be necessary for India’s investigative agencies to gather evidence of duplicate sets of invoices corresponding to the same transactions by RGTIL, documentation on transfer of funds to accounts held or controlled by Biometrix in Singapore or related parties, and evidence on how funds were deployed to repay the loan received from ICICI Bank, Singapore.

It remains to be seen whether ‘collusion’ among bankers, company executives and government officials can be established through a coordinated effort by agencies like the DRI, ED, CBI, SFIO, and Income Tax Department, as has been suggested by Sarma. That the quality of evidence will have to be very good, goes without saying. There are a number of recent examples of meticulously investigated cases by single agencies, such as the DRI and the Income Tax Department, being dismissed at the appellate stage by tribunal bodies.

The other investigation that has apparently made some progress concerns MoTech Software. Information about the firm had reportedly been made available to the government first in 2011. Eight years later, the government is said to have issued notices to members of the Ambani family.

In 2012, Kejriwal and Bhushan highlighted details of the MoTech case after the “Swiss Leaks” investigation by the International Consortium of Investigative Journalists. The consortium’s Indian partner, the Indian Express, revealed in February 2015 the names of several companies in offshore tax havens connected to the Reliance group and its promoter families.

In an exclusive report for Newsclick, these authors had revealed in May 2018 that the Income Tax investigation based on the HSBC information had uncovered that the offshore firms were part of an elaborate scheme to transfer ownership of Dhirubhai Ambani’s offshore assets to his sons, Mukesh and Anil, following his death. Involving one chain of multiple firms to mask ownership, and another chain of firms to mask the flow of funds, assets amounting to Rs 2,100 crore worth of shares in Reliance Utilities and Power Limited and Reliance Ports and Terminals Limited eventually ended up in an account held in a Swiss branch of the HSBC Bank by a subsidiary of MoTech Software.

Questionnaires sent by NewsClick to the Ambani siblings, Mukesh and Ambani, were not responded to at the time.

It was reported on September 15 by the Indian Express that a four-month amnesty period announced by the government for holders of black money, prior to its November 2016 announcement of demonetisation, went ignored by the Ambanis and stated that the tax notice had been served in a “closely guarded move.”

Little Media Attention
The Reliance group’s connection to the INX Media case following Chidambaram’s arrest as well as the tax investigations into group companies and its promoters, have received little media attention. It has been alleged that officials working on these investigations have been frequently transferred.

Following an unprecedented rap on the knuckles by the CAG on alleged mis-steps in assessing the Reliance groups’ companies tax liabilities in 2018, unnamed Income Tax Department officials had told journalists that “the Biometrix FDI (foreign direct investment) trail went cold for four years after a few officials were transferred.”

On the day of writing this report, the Indian Express published another report about a mysterious break-in at the Mumbai office complex of the Income Tax Department in September 2019 during the Ganesh Chaturthi holiday. The break-in took place in precisely the unit of the department that is handling the black money investigation in the MoTech case.

The newspaper stated that information about the break-in had not been revealed for over a month, no first information report had been filed with the police, and that a departmental enquiry was still on to determine what documents may be missing and who may have been responsible for the break-in into the heavily guarded premises of the Income Tax Department.

The writers are independent journalists.

Courtesy: News Click

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BJP & Syama Prasad Mukherjee: A Relationship of Convenience

Mon, 08 Jul 2019 06:02:54 +0000

Amit Shah recently condemned the fact that no investigation had been conducted into the death of Syama Prasad Mukherjee.

Amit Shah recently condemned the fact that no investigation had been conducted into the death of Syama Prasad Mukherjee. However, he chose to ignore the lack of any initiative in this direction by both the Vajpayee and Modi governments. Why is it that the BJP remembers Syama Prasad Mukherjee only when its convenient? In this new program called ” Meri Najar Se, Itihaas Ke Panne”, senior journalist Nilanjan Mukhopadhyay takes a look at the lives of political leaders and the politics around them, much of which lies buried in history books.

Courtesy: News Click

The post BJP & Syama Prasad Mukherjee: A Relationship of Convenience appeared first on SabrangIndia.