The CBI has moved the Bombay High Court against the Maharashtra government for appointing a Special Public Prosecutor who earlier represented Rabia Khan, the mother of the deceased actress. How fair is this trial?
By Neeta Kolhatkar in Mumbai
T he Jiah Khan trial has been ridden with problems from the beginning. Rabia Khan, the mother of the deceased actress who reportedly committed suicide on June 3, 2013, has time and again opposed investigations by the Crime Branch of Mumbai and the CBI as she said they did not conduct them as per her wish. She had wanted a Special Investigating Team (SIT) and had also asked for the FBI and the CIA to probe her daughter’s death. When Rabia recently moved the Supreme Court to stay the trial, she was directed back to the Bombay High Court. The apex court has asked the High Court to expedite the matter.
The trial has been running into complications, the latest being the appointment of advocate Dinesh Tiwari as Special Public Prosecutor. Sources in the CBI told India Legal: “We have got the sanction to move the High Court against the Maharashtra government in the appointment of Dinesh Tiwari as Special Public Prosecutor.” The investigating officer said that the CBI opposed this appointment as Tiwari had failed to inform the Court that he has previously represented the aggrieved party, Rabia Khan.
As per the notification of the law and judiciary department of the Maharashtra government, the appointment of advocate Tiwari has been as per Rule number 22, under the Maharashtra Law Officers (Appointment and Service) Rules, 1984. However, this rule does not specify if a counsel, who has already appeared for the applicant in the same case, can be appointed.
The state government issued a notification on November 6, 2015, after receiving an application and a demand draft of `50,000 by Rabia Khan. An officer in the law and judiciary department said: “We receive a proposal from the Home Department and often this comes directly or sometimes on the recommendation of the police commissioner. We issue the notification as per these recommendations.”
The CBI defended its stand saying that Tiwari has been privy to its investigations and the Crime Branch. Tiwari has demanded a new probe by the SIT. The CBI feels this is partisan. “Tomorrow he will reject the SIT and demand a new investigating agency,” said the investigating officer.
Tiwari says: “The CBI is lying. I got the permission from the law and judiciary department where all has been disclosed in the application. Also, the Court knows that I appeared in the past, a fact which the accused also knows. The High Court allows the appointment of a lawyer who has appeared in the past.” He added: “What the CBI wants is to fight a proxy war for others.”
A lawyer on condition of anonymity said the appointment is against the guidelines laid down after the Shiv Kumar and Hukumchand ruling wherein Justice KT Thomas clearly stated who should be appointed as Special Public Prosecutor. His judgment said: “It is for the protection of the accused person in the sessions trials (in India) that provision is made to have the case against him prosecuted only by a Public Prosecutor and not by any counsel engaged by the aggrieved private party. Fairness to the accused who faces prosecution is the raison d’etre of the legislative insistence on that score.”
A valid question being raised against the CBI is why it kept quiet from the time it filed a chargesheet in the matter in December last year (Tiwari was appointed on November 6). Rajiv Chavan, president of the WesternBar Association, said: “It is the responsibility of the lawyer to inform the court of having being partisan. Since he has not, it is a breach of Rules 13 & 14 of the Bar Council of India.”