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The Gujarat High Court on Wednesday stayed magistrate S P Tamang's report which concluded that the encounter in which Ishrat Jahan and three others were killed in 2004 was fake and ordered a probe how the finding was made public without its permission.
Justice Kalpesh Jhaveri while staying the report said the observations made in the report in which Tamang said among other things that some top police officers had staged the encounter for rewards were beyond his jurisdiction. Tamang also said that the four were killed in cold blood. The order was given on a petition by the state government which challenged the report and sought a stay.
Justice Jhaveri said the observations were beyond Tamang's jurisdiction and also that of the CrPC section 176 under which the judicial inquiry was conducted. The court further observed that prima facie the magistrate should have sought permission to publish or furnish report to anybody.
The court ordered appropiate authorities of the High Court to look into how Tamang was given directions by the Chief Metropolitan megistrate to inquire the encounter on August 12, 2009, when on the same day the High Court had reserved its order on constituting the committee.
It has directed appropiate authorities to look into the matter and take neccessary actions. However, the court gave liberty to Ishrat's mother to produce the report before the three-member committee constituted by the High Court last month to investigate the encounter. It further said report can be considered as evidence by the committee.
The four victims, claimed to have been killed by police in an encounter on the outskirts of the city on June 15, 2004, were -- Ishrat, Javed Ghulam Sheikh alias Pranesh Kumar Pillai, Amjad Ali alias Rajkumar Akbar Ali Rana and Jisan Johar Abdul Gani.
Magistrate Tamang in his report submitted on Monday had said the encounter, in which 19-year-old Ishrat Jahan and three others were gunned down while allegedly plotting to kill Chief Minister Narendra Modi, was fake and executed in "cold blood" by police officers for awards.
The report had also held senior police officers responsible for "staging" the encounter. Advocate General Kamal Trivedi appearing on behalf of the government, argued that Magistrate Tamang should have sought permission of the High Court to publish or furnish the report to anybody.
He further said the report was out of jurisdiction of the magistrate as well as that of the Section 176 of the CrPC under which it was conducted. Trivedi said even if it is accepted that the inquiry could have been done under CrPC 176, the observations made by Tamang with regard to the cause of death of the Ishrat and others were beyond the scope of the inquiry.
Trivedi also argued that since the matter was already being heard by the High Court, the magistrate's report is over reaching the process laid down by the HC. Mukul Sinha, appearing on behalf of Ishrat's mother Shamima Kausar, countered saying Tamang's report does not affect the High Court order of constituting the three-member committee to investigate the encounter, and hence it should not be stayed as demanded by the government.
He said the report would aid the order and help in the investigation of the cause of death of Ishrat and others. Tamang's report would not interfere with the investigation by the HC-appointed committee, Sinha added. Meanwhile, a police officer indicted by Tamang's report, also approached the Gujarat High Court today demanding that the report should be declared null and void.
The petition was filed by Gujarat anti-terrorist squad Superintendent of Police G L Singhal, who was posted with the city crime branch at the time of encounter. However, Singhal's advocate Nirupam Nanavati withdrew the petition later. The Gujarat government while rejecting Tamang's report on Tuesday had said that it was "bad in law" and that the magistrate has "overstepped" his jurisdiction.