MP’s Jailhouse Rock

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The killing of eight SIMI undertrials by the Bhopal police has raised many uncomfortable questions and could lead to a protracted legal battle

By Rakesh Dixit in Bhopal

Within 48 hours of the controversial police encounter where eight suspected SIMI undertrials were gunned down in Bhopal on October 31, the Shivraj Singh Chouhan government went from chest-thumping to damage-control. Joint teams of the Bhopal police and Anti-Terrorism Squad (ATS) had killed these undertrials on a hilltop, 10 km from the highly fortified Bhopal jail. Since then, conflicting versions have surfaced from the police and state home minister, leading to allegations that it might be a fake encounter.

JUDICIAL PROBE

Three interventions forced the state government to order a judicial probe into the “cold-blooded murders”, according to the defense lawyer of the slain undertrials, Pervez Alam. On November 2, Bhopal-based journalist Awadhesh Bhagrava filed a PIL in the Madhya Pradesh High Court seeking a judicial inquiry. The same day, the Jabalpur High Court issued notices to the government advocate and ATS seeking a detailed report on the “encounter” of these suspected SIMI members. Bail applications of some of the slain undertrials were scheduled for hearing before the bench headed by Justice CB Sirpurkar. “We petitioned for a detailed report about the encounter, including the autopsy papers,” said Naeem Khan, counsel for several of the alleged SIMI members. The National Human Rights Commission (NHRC) and state’s human rights commission (MPHRC) also issued notices to the state government, police and prison authorities. MPHRC sought a report within 15 days from IG (Bhopal range) over the encounter.

Chief Minister Shivraj Singh Chouhan on Madhya Pradesh Founding Day urged the crowd to applaud the killings of suspected SIMI undertrials
Chief Minister Shivraj Singh Chouhan on Madhya Pradesh Founding Day urged the crowd to applaud the killings of suspected SIMI undertrials

Although the defense lawyers are optimistic about getting justice from the Court, they are unhappy about the state government instituting a judicial commission headed by retired high court judge SK Pandey. As for the other three probes ordered by the state government, the defense lawyers are not hopeful of unearthing the truth behind the jailbreak-encounter. These probes are by former DGP Nandan Dubey, by a Special Investigation Team and by a magistrate.

“How can the culprit (the state government) unilaterally order a judicial probe by a retired judge into the extrajudicial killings without consulting the chief justice of the High Court? This militates against the very spirit of natural justice,” Alam told India Legal. He demanded a judicial probe by a sitting High Court judge instead. He also moved petitions in the High Court on behalf of family members of the slain undertrials. The Congress too is contemplating filing a PIL in the Supreme Court to seek direction for a judicial probe by a sitting judge. “Our lawyers, Vivek Tankha and Kapil Sibal, are examining details of the extrajudicial killings,” said state Congress president Arun Yadav.

The prospect of multiple judicial scrutinies into the controversial police encounter has added to the state government’s worries. It is already rattled by a series of audio-video clips of the encounter that went viral in social media and news channels.

PUBLIC ENDORSEMENT

A day after the encounter, Chouhan sought public endorsement of the killings in a function to mark Madhya Pradesh Founding Day on November 1. A 10,000-strong crowd at Bhopal’s Lal Parade Ground comprising mostly BJP and RSS supporters and government employees saw Chouhan exhorting the crowd to raise their hands if they approved of the deaths of the “dreaded terrorists.” The crowd obliged with lusty chants of “Vande Mataram” and “Bharat Mata Ki Jai”. Justifying the encounter, Chouhan told reporters that the “timely killings” had saved the nation from many possible terrorist strikes and the loss of innocent lives in future.

The scene evoked memories of previous election rallies in Gujarat where Narendra Modi, then the state’s chief minister, sought a similar public endorsement for the deaths of Ishrat Jahan and Sohrabuddin, victims of controversial police encounters in Gujarat between 2004 and 2008.

<q]The trial was going on and there were only 18 to 20 witnesses who remained to be questioned. There was no ample evidence against them, factually or legally. There was no reason for them to break jail.

—Thahavur Khan, defense lawyer

State BJP president Nand Kumar Singh Chouhan said that it was the chief minister’s desire to nab the escapees dead or alive which had enthused the police to eliminate the terrorists. Neither the BJP nor the police seemed unduly concerned over the damning audio-video evidence about the encounter. It was only after the Court intervention that the government’s and BJP’s rhetoric gave way to damage control. Police officers were told to keep shut and a judicial probe ordered. Excited BJP cadres were asked to cancel plans to facilitate police officers and the government withheld the cash award it had announced for the police personnel who were part of the encounter till the judicial probe was complete. 

SC GUIDELINES

On September 23, 2014, the Supreme Court of India while hearing an appeal by the People’s Union for Civil Liberties against the State of Maharashtra laid down 16 guidelines in case of death due to police firing. One of them stated that it must be ensured that rewards are given or recommended to the police personnel only when gallantry is established beyond doubt. Cash rewards to four villagers who claimed to have provided first information about the escapees were also withheld.

The swift damage control may have prevented further taint on the state government’s image but it has to brace up for a long legal battle ahead. Unanswered questions about the controversial jailbreak and subsequent encounter are too many and too discomforting to answer, aver the SIMI operatives’ defense lawyers. Those killed in the encounter include Sheikh Mujeeb, Mohammad Salik, Khalid Ahmad, Majid, Amjad, Mahboob alias Guddu, Aqeel Khilji and Zakir Husain. Of them, Zakir, Amjad and Mahboob had escaped from Khandwa jail too in October 2013. The SIMI operatives were facing sedition charges. They were arrested for running the banned outfit’s activities in Madhya Pradesh and robbing banks to finance their operations. They were accused of killing two policemen in the past, and of robbing banks, including Manappuram Bank in Bhopal. However, in one of the bank robbery cases, some of them were acquitted.

ALMOST ACQUITTED

According to defense lawyers Alam and Thahavur Khan, none of the slain undertrials was a SIMI operative. Secondly, trials against them for the last three years had turned futile as the prosecution failed to corroborate charges against them. “Four of them were near acquittal and it defies logic to believe they would do a jailbreak,” Alam added.

Thahavur Khan said: “The trial was going on and there were only 18 to 20 witnesses who remained to be questioned. There was no ample evidence against them, factually or legally. There was no reason for them to break jail. The court judgment was expected to come out in weeks.” All the accused were booked under multiple sections of the Unlawful Activities Prevention Act. The main charge slapped against them was Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony).

Two slain undertrial prisoners—Khilji and Amjad—were in police custody even before they were formally declared arrested under terror charges on June 13, 2011. Advocate Javaid Chauhan of Khandwa, who represented Khilji, said: “In some cases, the evidence of guilt is identical. For example, the same copy of a magazine has been produced in at least four different cases across the state. The same receipt of contribution to SIMI funds has been produced as evidence in two different cases.”

The state government has not countered these allegations. Nor has the prosecution or the ATS come out with any explanation on the progress that was made in collecting evidence against the SIMI undertrials who were in Bhopal jail since 2014. A total of 29 alleged SIMI undertrials are in Bhopal jail. There is more to this than meets the eye, it seems.

Lead picture: (L-R) Bhopal’s central jail from where the SIMI men allegedly escaped; bodies of the undertrials (Photo: UNI)

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