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National / Opinion MAGAZINE | JUL 15, 2013
OPINION
Intelligence QuestionsThe IB officer is a vulnerable being.
Blame him not casually.
R.K. RAGHAVAN
The Ishrat J ahan case is a classic illustration of how an
investigation agency and an intelligence outfit can comeinto
conflict. It is widely believed there are sharp differences between
the Central Bureau of Investigation (CBI)and the Intelligence
Bureau (IB) over the role of Rajinder Kumar, an IB officer of rank
only one level below thedirector, in the case. Rajinder Kumar was
once posted in Gandhinagar and is suspected to have a connection
tothe extra-judicial killing of 19-year-old Ishrat and three young
men by the Gujarat police.
The Union home secretary reportedly held a sort-it-out meeting
with the chiefs of the two agencies. The outcomeis not known. But
the CBI, which is investigating the case, seems to have an open
mind on Rajinder Kumarsinvolvement: it has not indicted him in its
first chargesheet. The Gujarat police had made out that Ishrat and
thethree men shot dead with her were terrorists on a mission to
assassinate chief minister Narendra Modi; that theyhad been
intercepted and shot dead by its officers. Investigators have since
found it was a fake encounter.
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Rajinder Kumar is said to have provided intelligence input to
the Gujarat cops. Was this to facilitate the extra-judicial
killing? But the CBI seems to have weighed the officers record and
unsullied reputation as it bought timeto decide on his culpability.
Now, the CBI and IB chiefs would do well to navigate past the
gathering storm ofinter-agency conflict.
Prosecuting an IB officer for passing on to the state police
information that was possibly inaccurate, if notabsolutely false,
requires a high degree of application of mind. The media has
created the unfortunate impressionthat some subjectivity and
politicisation has crept into the CBIs investigation of Rajinder
Kumars role. I wont buythis without solid, substantiating facts.
After all, this is an investigation monitored by the Gujarat High
Court: the
CBI cant play around with vital facts. If Rajinder Kumar is at
all prosecuted, we will be able to arrive at its basisonly after
basic facts are gleaned from the CBIs chargesheet.
In my view, the officer can be prosecuted only if he had been
mixed up in local politics or was driven by a dubiouspersonal
agenda in furnishing false information to the Gujarat police. To
fasten him to the crime, we must also askthese questions: Did he
directly take part in the encounter? Was he present at the scene?
Did he have theauthority to aid in the execution of the diabolical
conspiracy hatched by the states encounter specialists?
The IB, it must be remembered, is not a legal entity. It was
created by an executive order and is merely anattached office of
the Union home ministry. It has no powers under the Criminal
Procedure Code (CRPC), whichlays down investigation procedure for
the police. So, before an IB officer is charged with criminal
conspiracyas,it is bruited, Rajinder Kumar might behis role in a
questionable encounter must be analysed clinically. If he isgoing
to be hauled up as individual, and not as an IB officer, his mens
rea (criminal intent) has to be proved. If,
however, he is chargesheeted as an IB officer, the question will
be on his legal authority, if any, and its messyentanglement with
the crime.
The chargesheeting will also require clearance from the Union
home ministry. It is anybodys guess whether theministry will accede
to a CBI request on this. The ministry will be well within its
right to refuse. This is usually not
justiciable unless the facts are overwhelmingly against Rajinder
Kumar, in which case the trial court could ignorethe lack of
clearance from the ministry and proceed with his prosecution. But
such an action could be regarded asbad in law; a higher court could
strike it down.
Even if Rajinder Kumar retires from the Indian Police Service
(IPS), as he shortly will, prosecuting him under anysection of the
Indian Penal Code (IPC) will require the home ministrys clearance.
Without such clearance, aretired officer can be prosecuted only
under anti-corruption laws. It is all, therefore, quite
complicated. There isno clear-cut information available for the
media to make the sort of categorical assertions it has made.
The
column-centimetres and prime-time news slots are riddled with
speculation and conjecture. May I call for someresponsibility here,
in the interest of nursing the morale of the officers of a
sensitive organisation like the IB, whichplays a crucial role in
national security?
(The writer has served as a joint director of the IB and as the
director of the CBI.)
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