The Ishrat Jahan encounter case, explained

The Congress and the BJP have been squabbling over a seven-year-old affidavit related to the death of Ishrat Jahan and three others in 2004. The four were killed in an alleged encounter, after which police claimed they were suspected terrorists. All this political wrangling blurs the fact that Ishrat's suspected links to terror groups are irrelevant to the murder charges facing the police officers who participated in the alleged encounter. The Supreme Court even quashed litigation that sought closure of the cases based on these suspected links.

Nevertheless, allegations have been flying fast. Home minister Rajnath Singh told the Lok Sabha that documents related to the affidavits are missing, and then accused the Congress-led government of conspiring to frame Narendra Modi in the case.

Ever since 19-year-old Ishrat Jahan was killed, her controversial death has made headlines regularly. Here’s everything you need to know about the 12-year-old case.

The First Affidavit

The first statement by the union home ministry was submitted on August 6, 2009, in response to a writ petition by Ishrat’s mother, Shamima Kauser, alleging that her daughter had been killed in a “fake encounter” by the Gujarat police.

The most important part of the affidavit is paragraph 8, which quotes news reports about a claim by Lashkar-e-Taiba (LeT) that Ishrat was a “woman activist of LeT,” and notes that the statement has since been retracted. The affidavit dismisses the withdrawal of the claim as a tactic “to discredit” Indian intelligence agencies and insists that Ishrat was “actively associated with LeT.”

The Second Affidavit

The second affidavit, dated September 29, 2009, reversed this position on the grounds that it was not based on “conclusive” intelligence inputs. According to the this affidavit, evidence previously used to link her to LeT was “needlessly misinterpreted.”

Why revise the affidavit?

This is the crux of the current controversy. To be clear, the LeT’s statement on Ishrat was not the result of intelligence. It was widely reported news. And, if Ishrat and three others were killed in a “fake” encounter, as the CBI investigation said they were, the murder charges stand irrespective of the victims’ alleged links to terror groups.

But the political clash over the affidavit has clearly stolen the show. The BJP-led government has accused the Congress of using the second affidavit to bolster its stand that an innocent girl was killed by the Gujarat state police in a staged encounter. The BJP has said this is part of Congress’ ploy to discredit then chief minister Narendra Modi. A former home ministry official even accused Satish Verma, who led the probe into the alleged encounter, of coercing him into downplaying Ishrat’s alleged links to terror groups. Verma has already denied the charge.

Former home minister P. Chidambaram, meanwhile, has stood by the change in the affidavit: “It should be clear to all that such [intelligence] inputs do not constitute conclusive proof and it is for the state government and the state police to act on such inputs.”

But, 12 years later, it’s still unclear what intelligence was available on Ishrat.

The Encounter

Around 5 am on the morning of June 15, 2004, an investigative unit in Ahmedabad — the city’s Detection of Crime Branch — received a call. Police officers from the Crime Branch had killed four suspected terrorists close to a water treatment plant on the outskirts of of the Gujarat capital. The four — three men and a woman — were believed to be linked to Lashkar-e-Taiba (LeT), a Pakistani terror group.

Who was killed?

Jishan Johar, Amjad Ali Akbar Ali Rana, Javed Shaikh, and Ishrat Jahan.

The First Information Report (FIR), or police complaint, filed by the Gujarat police later that day said officers from the Ahmedabad city Crime Branch had received intelligence that two “Pakistani fidayeens were traveling from Kashmir to Ahmedabad” to “attempt a suicidal attack”on Narendra Modi, who was the chief minister of Gujarat at the time. Johar and Rana were identified as the two Pakistani nationals. Shaikh, the third male victim, was allegedly “arranging their local network.”

Around 11 pm on June 15, 2004, according to the FIR, one of the officers was informed by a “personal source” that the three men were traveling from Mumbai to Ahmedabad in a blue Indica along with “firearms and explosives.” The stakeout to “nab” the car led to a car chase that ended in a shootout at the deserted Kotarpur Water Works. By 5 am the next morning, four people had been killed in a barrage of gunfire. Over 50 rounds were fired from two revolvers and two Kalashnikovs, police said, but not a single policeman was injured in the shootout.

The fourth victim, a “female terrorist,” was not identified by name in this complaint. Nor does it explain what intelligence, if any, police had about her at this point. The girl was later identified as Ishrat Jahan, a college student from Mumbra, a suburb outside Mumbai.

A timeline of the case

Was it an encounter?

This question is at the heart of the case: was this encounter staged? Any killing resulting from a run-in or exchange of fire with the police, paramilitary or armed forces is commonly referred to as an “encounter” in India. The police are bound by law to file a written complaint of every death by encounter.

In this case, the initial investigation by officials from Ahmedabad’s Crime Branch — the officers who participated in the alleged encounter were part of the same unit — found that the encounter was not staged. But the Gujarat state government ordered a magisterial inquiry as required by law, and the Gujarat High Court created a Special Investigation Team (SIT) to probe the killings. First came a report by metropolitan magistrate S.P. Tamang in 2009, and then an affidavit in 2011 by Gujarat state police officer Satish Verma who was part of the three-member SIT.

The report by Tamang said the four were shot at close range as the entry points of the bullets wounds on the body were smaller than the exit points. It found several discrepancies in the police version: the police claimed they fired 70 bullets, but no bullets were found on the scene; the police said they shot at the car’s left side and burst a tyre after which it hit the divider on the right, but if that were the case, the car would have swerved left, and not right. Even forensic tests found no remains of “exploded ammunition” on the victims suggesting the police planted the guns found on them. Citing the post-mortem, the report also said the police killed the four people elsewhere and later brought them to the scene of the crime.

The SIT report said the “purported encounter” was not “genuine,” and that “the right of private defence for causing the death of four deceased persons does not legally accrue to the accused Gujarat police officers.”

In a new FIR dated December 16, 2011 — more than seven years after the killings — the CBI accused 20 police officers of murder, kidnapping, criminal conspiracy, and several other offences. The list of accused included the Ahmedabad city Commissioner of Police, K. R. Kaushik, and 15 inspectors from the city’s Crime Branch.

Nearly two years laters, on July 3, 2013, the CBI charged seven officers from the Gujarat state police, while describing the killings as a “joint operation” between them and the state’s Intelligence Bureau in Ahmedabad.

Then, in February 2014, the CBI charged four members of the IB with murder, kidnapping and criminal conspiracy: former chief of the Gujarat state Intelligence Bureau, Rajinder Kumar, and three IB officials, P. Mittal, M.K. Sinha and Rajiv Wankhede. The 1500-page chargesheet includes testimonies and eyewitness accounts of the shooting.

The chargesheet indicates that it was a fake encounter.

You can view part of the chargesheet here

The CBI Probe

In an unequivocal indictment, the CBI poked holes in the accused officers’ version of the alleged encounter, and revealed what appear to be major blunders on the part of the first investigation by the Ahmedabad city Crime Branch.

Crucially, the ballistic and forensic evidence examined by the CBI conflicted with the account given by the officers who participated in the encounter. According to the new FIR filed against the Gujarat police, the bullets recovered from the bodies of the victims did not match any of the guns that were supposedly used during the shooting. Neither did the cartridges from the car. One of the guns, which fired a 9mm bullet, was never identified. The location of the blue Indica, and the location of the bodies inside and outside of the car, was at odds with the trajectory of the shots fired.

  Ballistics report.

The most damning of all is the allegation that all four of the victims were already “taken into illegal custody” by the Gujarat police and the state’s IB. Johar, for instance, had been detained for over a month. Rana was detained in May, and Shaikh and Ishrat, just days before the alleged encounter. They were held in different places before they were brought to Kotarpur water works where they were killed.

The new FIR registered with the CBI accused Gujarat state police officers D. G. Vanzara and P. P. Pandey, and the head of the state intelligence bureau, Rajinder Kumar, of planning the “elimination of the four detainees” on the evening of June 13, 2004, in Vanzara’s office.

Were they terrorists?

Jishan Johar and Amjad Ali Rana, the two alleged Pakistani men, seem to have been identified based on previous intelligence, surveillance, and interrogations after they were detained. The CBI’s investigation suggested that Rana and Johar could be linked to terror groups.

Javed Shaikh had a criminal record and was suspected to be still involved in smuggling and counterfeit currency. He knew Rana from before, leading investigators to conclude that he could also be linked to terror groups.

Ishrat’s story is more complicated. According to Ishrat’s mother, Shamima Kauser, Ishrat was working with Shaikh, and she had traveled with him twice before. The investigators believed it was likely Ishrat knew of Shaikh’s illegal work, but not of any connection he might have to terror groups.

The new FIR filed against the Gujarat police doesn’t mention the news reports in which LeT claimed and then disowned Ishrat as an operative. In fact, it states that there’s no evidence connecting her to any terror group or activity. The likely reason is that the CBI did not find any intelligence on Ishrat to corroborate this alleged link.

David Headley’s Testimony

David Headley, a conspirator in the Mumbai terror attacks, picked Ishrat’s name from options given to him by public prosecutor, Ujjwal Nikam. Headley, who is now cooperating with the prosecution as an approver, was testifying about the attack on 26/11 when he was asked about “female suicide bombers in LeT.”

But Vrinda Grover, Shamima Kauser’s lawyer, dismissed Headley’s statement saying the prosecution could not “ask him leading questions and extract an answer.” His testimony as an approver, Grover said, was an “inherently weak piece of evidence and requires corroboration.”

Is the testimony important?

It isn’t. At least not in legal terms. “In my view the law is very clear that the killing of any person who the police has taken into custody, is murder,” said Grover. “The antecedents or linkages of such person are irrelevant and cannot justify the murder."

It’s also worth remembering that the accused police officers and IB officials are charged with the kidnapping and murder of three others, whose links to terror groups are established.

But his testimony is significant to the narrative. The killing of a college student produces a starkly different public reaction compared to that of a suspected terrorist. According to Grover, the questions about Ishrat’s death are more “pointed” because “there is nothing to link Ishrat at all to any terror ​group ​or criminal activity​.”

“It is difficult to pass it off as for the "good of the nation,” added Grover.

Where does the case stand now?

The CBI arrested the officers from the Gujarat state police, but they are either out on bail or have been reinstated. The trial is yet to begin because the union home ministry has refused sanction to prosecute the four IB officials who were charged in the case. What’s at issue is whether the CBI even needs permission to prosecute public servants? The Attorney-General has said it does. But lawyers cite a 2012 Supreme Court judgment which said:

“Thus, all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of requirement of sanction. In fact, the issue of sanction becomes a question of paramount importance when a public servant is alleged to have acted beyond his authority or his acts complained of are in dereliction of the duty. In such an eventuality, if the offence is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, grant of prior sanction becomes imperative.”

Can the Home Ministry then withhold sanction to prosecute if the charges include kidnapping and murder, both of which are clearly “in dereliction of the duty?” The ministry declined to comment.

What’s worrying, however, is that the police officers accused of killing Ishrat, Shaikh, Rana and Johar have also been accused in other killings. Some of those cases are stuck awaiting similar permissions. After Vanzara was arrested, he wrote an open letter in which he said: “I categorically state that officers and men of the Crime Branch, ATS and Border Range, during the period 2002-2007, simply acted and performed their duties in compliance with a conscious policy of this government.”

Between 2002 and 2006, D. G. Vanzara, Tarun Barot, G.K. Singhal, P. P. Pandey, N.K. Amin, K.M. Vaghela and J. G. Parmar, have been accused in more than one “fake encounter” case.