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National MAGAZINE | JUL 15, 2013

ISHRAT JAHAN: CBI VS IB

Hear Them Skeletons In The Bureau?Was it just in the line of duty or did the IB in Gujarat overreach its mandated brief?

UTTAM SENGUPTA , R.K. MISRA

As much as Gujarat chief minister Narendra Modi and his right-hand man Amit Shah, Indias shadowy internal spyagency is feeling the heat following the CBIs chargesheet in the 2004 Ishrat J ahan fake encounter case. For thepoliticians, the fat will be in the fire only if the IB officers choose to squeal.

The worlds oldest intelligence agency is neck-deep in the quagmire. For the first time, the Intelligence Bureau(IB) stands formally accused of criminal conspiracy, abduction, planting of evidence and, worse, plain,cold-blooded murder. Whether the charges remain confined to a small group of individual officers, who will thenstand trial in their individual capacity, or whether it snowballs into a scandal involving IB as an institution, willbecome clearer in the coming weeks and following the supplementary chargesheet that the CBI has undertakento file on J uly 26 in the case.

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What the CBI claims

to have is evidencethat Javed Sheikh

was in touch with

IB, particularly with

Kumar.

The IB, which was set up by the colonial-era regime in 1887, has so far stonewalled the CBI investigation andrefused to share information with the investigators. On the only occasion when one of its seniormost officers,Rajinder Kumar, special director (IB), was questioned by the CBI in J une 2013, he reportedly claimed that his jobended when he shared the input (that terrorists were travelling to Ahmedabad to assassinate the Gujarat chiefminister) with the police. Period. He did not remember the finer details.

The preliminary chargesheet, however, names Kumar as the person who orderedthe abduction of Ishrat J ahan and J aved Sheikh. It also says that they were pickedup by his men, and he himself interrogated the four alleged terrorists in the custody

of Gujarat police and subsequently took an active part in staging the fakeencounter and helping the state police plant firearms on the dead bodies. Thechargesheet also names three other IB officials. The CBI is clearly anxious toarrest them for custodial interrogation but has refrained from making a publicpitch.

As it stands, hes at one remove from being an accused. Evidence against Kumaris fabricated, a former IB director told Outlook, fuming. Why would he get involved in a fake encounter, whatwould he have to gain? Speaking on condition of anonymity, the former dib hinted that spy agencies are forced tocarry out unpleasant duties in the line of duty. Strictly speaking, he went on to add, everything the IB does isillegal.

Arvind Verma, a former IPS officer now teaching in Indiana University, US, told Outlook, IB has a well-structured

process of documenting every bit of information and keeping full records of every transaction. But it is not willingto cooperate with the CBI or allowing it access to records dating back to 2004 and pertaining to the encounter.Which is why the CBI is wary of naming the IB officials among the accused.

What the CBI does claim to have is evidence to show that one of the alleged terrorists, Pranesh Pillai, alias J avedSheikh, was actually in touch with the IB and, more pertinently, with Rajinder Kumar long before he was abductedand gunned down. The agency, which claims the IB asked J aved Sheikh to reach Ahmedabad, suspects he wasan informer. It also has credible information that Sheikh was the handler for the other two terrorists gunneddown with him.

July 7, 2011: Police officers Tarun Barot (holding revolver) and G.L. Singhal (right) during a reconstruction of the Ishrat J ahan


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What is dangerous

is there are

elements in

bureaucracy, police

etc, with their own

vis ion of India at

variance w ith the

Constitution. VrindaGrover, Lawyer ForIshrats Mother

encounter by the SIT. (Photograph by PTI)

In short, the three alleged terrorists were agents or double agents.

Why then would the IB decide to eliminate them? Once again, there is no easy answer although sources close tothe investigators speculate that it is possible that their cover was blown and they were no longer useful to the IB.But still, why kill them?

This is the point where Rajinder Kumars role gets even more intriguing. The IB official, says former Gujarat

ADGP (intelligence) R.B. Sreekumar, became friendly with Narendra Modi when the latter was a BJ P generalsecretary and Kumar was overseeing IB operations in Punjab, Haryana and Himachal Pradesh. Sreekumar told aTV interviewer that the then home minister, L.K. Advani, got Kumar posted to Ahmedabad following Modisrequest. That Kumar was close to the chief minister was not exactly a state secret here and people stillremember the warm send-off Modi gave him in 2005. The insinuation is that Kumar allowed the Gujarat police tostage the encounter to claim credit for foiling a terror attack and the CM to make some political capital.

But did Kumar have a personal agenda? If it is proved that he was physically present at the scene during theencounter, his liability will be that of a private citizen, says a former CBI director. Any decision to prosecute himor not will depend on whether the agency has such evidence, he felt.

Moreover, he added, the IB at best furnishes information and nothing more. It isfor the state police to act on it (or not) after verifying the IB inputs. As far as I

know, an IB officer cannot be chargesheeted for providing wrong/false information.Since the IB is not a legal entity, an officer working for it cannot be hauled up forcatering incorrect or false information, he asserts. The onus, it would seem, wason the Gujarat police to verify the inputs.

A glaring discrepancy is that the FIR after the June 15, 2004, encounter says thatthe then J oint Police Commissioner P.P. Pandey had received intelligence from hispersonal and private sources about terrorists proceeding in a blue Indica toAhmedabad, a claim he reiterated when a PUCL team called on him. Intelligence,he told them, need not always come from official sources. The claim opens upthe possibility that the fact or fiction of an IB input was generated as anafterthought.

The CBIs contention in the preliminary chargesheet that Rajinder Kumar knew thatthe four alleged terrorists were alive and in the custody of the Gujarat police andthat he had interrogated them raises yet another question. Did he send a report ofhis interrogation to the IB headquarters? If he did not, which appears to be thecase, then it would mean that he was acting on his own. On the other hand, if he did interrogate the allegedterrorists officially and recorded it, he would have known that the encounter, touted as a spontaneous fieldevent, was fake.

Whatever be the final outcome, the controversy has served to highlight the fact that the IB does not work underany statute or legal framework. While the government describes it as a civilian organisation, it is manned largelyby police officers and acts somewhat as a police organisation. In the absence of any statute, the IB is open toabuse, as the Shah Commission of inquiry had emphasised when it was appointed to look into Emergencyexcesses in 1977. The commissions recommendations, however, have never been acted upon by successive

governments.A PIL questioning the legally grey status of the IB is also pending before the Karnataka High Court. Filed byformer IB officer R.N. Kulkarni, it observes that the finest intelligence agencies in the world operate in secrecy,but within a legal framework. It asks: if other countries, including the United States, can have statutes guiding theiragencies, why cant India?

The PIL also questions the use of secret funds by the IB. It alleges that IB has atits disposal sums running up to 100 crore under secret funds, which amount wasbeing put to bizarre uses.

The case has been dragging in the court for the past two years, with the next


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The chargesheet

hides more than it

reveals. Political

pressures havebeen at work and

the masterminds

have been left

alone. Mukul Sinha,Lawyer For J avedSheikhs Father

hearing due in August.

However, in May this year, the Union of India filed an affidavit to claim that the IBsoperations as a wing of the MHA was constitutional because its budget is voted byParliament; its expenditure, barring the secret funds, is audited; and there isalready an oversight committee, which includes the leader of the opposition andwhich meets once every three months to review the working of the IB.

The CBI has been under pressure to leave the IB alone. But the agency is believed

to have told the MHA that it would not be possible for it to gloss over the evidenceit already has on record, especially in a case monitored by the judiciary. Agencyinsiders admit there was enormous pressure on them to let Kumar off the hook.But in the face of media frenzy, selective leaks and the close watch kept by thecourt, a quiet burial, they hinted, was unlikely.

While the present IB director, Asif Ibrahim, and the outgoing home secretary, R.K.Singh, did try to broker peace between the two agencies, it came to nothing. Thetwo agencies admit to bad blood between them and blame each other for the

current impasse.

The IB, say its apologists, works on trust and in national interest and it would demoralise the cadre if they werehounded for generating intelligence. The CBI sympathisers scoff at such claims and question whether the IB can

ride roughshod over due process and take the law into its own hands in the name of statecraft and nationalsecurity. The duel rages on, with neither opponent willing to back off.

***

Why The BJP Defence Does Not Wash


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While BJ P questions CBI credibility and has put up a brave face to defend the Ishrat J ahan encounter, there aremany questions for which it has no answers

BJP points to the LeT website endorsing Ishrat Jahans terror links after June 15, 2004

If the Gujarat police has any proof of her terror links before the encounter in J une 2004, it is yet to reveal them. Ithas instead fallen back on the LeT website owning Ishrat as one of its own after the encounter.

BJP cites David Headley telling FBI that she was a suicide bomber

In reply to an RTI query from NCP leader Rauf Lala, National Investigation Agency (NIA) said David Headley had

made no mention of Ishrat J ahan to them.

BJP mentions an aff idavit f iled by the MHA in 2009 before the Gujarat High Court, acknowledging her

terror links

In a second affidavit, the Ministry of Home Affairs clarified that intelligence inputs were not always conclusive,correct or to be taken as evidence. The clarification was accepted by the Gujarat High Court.

BJP maintains that the encounter was genuine and that the accused are innocent till found guilty by

court

The partys stand is at variance with its position on fake encounters in other states where it has demanded theresignation of chief ministers. It is also questioning the findings of the CBI, SIT and a judicial magistrate.

BJP denies the encounter was fake. Gujarat police, it holds, acted on inputs given by IB under a UPA

government.It is hard put to explain why an ADGP rank officer is absconding, why another IPS officer, G.L. Singhal, hasvirtually turned approver, and why 12 policemen implicated superiors for the fake encounter

BJP says with CBI holding it a joint operation of the IB and the police, MHA needs to explain what

happened.

The MHA and IB have taken the stand that the latter had passed on the input to the state police and theencounter was carried out by the latter with rogue elements within the IB.

By Uttam Sengupta in Delhi and R.K. Misra in Gandhinagar

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