– by Jamia Teachers’ Solidarity Association

19th September marks the sixth anniversary of the Batla House ‘encounter’. Six years ago, on this day, the Special Cell of Delhi Police claimed to have hit upon the perpetrators of the serial blasts that had struck the capital city the previous week. The so-called encounter resulted in the death of Inspector Sharma, a veteran of dozens of encounters and two young men, Atif Ameen and Sajid.

Sajid was a minor at the time of his death. In contravention to the guidelines framed by the National Human Rights Commission, no enquiry was allowed into the encounter at Batla House; indeed, the then Lieutenant Governor denied permission for the same. The NHRC itself carried out an insipid formality in the name of enquiry, giving a clean chit to the police on the basis of statements by police officers of the Delhi Police.

The police story of the encounter received a severe jolt when the NHRC released copies of post mortem reports of the deceased in response to RTI application. The reports of the two boys showed the presence of non firearm injuries on their bodies, including injuries on knee cap and grazing effects in the back region of Atif; Sajid also displayed at least two injuries, “which had been caused by blunt force impact by object or surface”. Furthermore the gun shot wounds clearly suggested foul play. Almost all the entry wounds on the body of Atif Ameen are on the back region, below the shoulders and at the back of the chest, which point to the fact that he was repeatedly shot from behind.

Sajid sustained gun shot wounds in the head, neck and shoulder region. The entry points and trajectories of gun shots in his case suggest that he was held down by force while bullets were pumped down his forehead, back and head.

The injuries seriously call into question the police story that the duo was killed in cross fire (in which case, there should have been frontal injuries.

What is also puzzling is why the NHRC, which had access to these reports when it was conducting its enquiry, chose to ignore these significant facts.

In the days and months following the ‘encounter’, a number of arrests were made and many of those arrested were implicated in blasts cases across the country. There were two separate trials: one, a trial in the Delhi blasts; and second, trial of the killing of Inspector Sharma.

The Trial of Inspector Sharma’s death

State vs Shahzad was widely, and ignorantly titled as the Batla house encounter trial by the media. In reality, it was limited to the death of Inspector Sharma. The deaths of Atif and Sajid, have fallen into a legal black hole, with no investigation or prosecution.

The FIR filed by SI Rahul Kumar at the Jamia Nagar Police Station on 19th September 2008, stated: “The names of the escaped militants were revealed … as Junaid and Pappu”. The name “Shahzad” did not appear in any police complaint or communication to the NHRC, and yet Shahzad, arrested in February 2010 was made the main accused in the murder of Inspector Sharma.

The trial which lasted three years, with over 70 witnesses being examined, concluded in July 2013. The Additional Sessions Judge in Saket Court in Delhi pronounced Shahzad Ahmad guilty of the murder of Inspector Sharma, of attempting to murder, assaulting police officers and destruction of evidence. The Court upheld the prosecution story that Shahzad had fired upon Inspector Sharma on 19 September 2008, when he had entered the flat in Batla House to apprehend ‘terrorists’.

The only evidence that was produced in the court was circumstantial. Even a simple reading of the judgement shows that the court over-reads, and indeed even extends the prosecution story to cover inconvenient facts. Firstly, there was no evidence to establish that Shahzad had even been present in the house in which the encounter took place on that fateful day. The court nonetheless relies on:

a) Telephone call records between Atif Ameen and Shahzad’s father

b) Railway reservation from Delhi to Azamgarh by Shahzad for 24th September 2008

c) Recovery of an invalid, expired passport belonging to Shahzad from the said house.

None of this even remotely suggests that Shahzad was present in the house, especially in absence of any other item of belonging or even his fingerprints.

In trying to explain how Shahzad may have escaped from the site of the encounter even though there was no escape route, the court explained: “It was not improbable for a person to have a safe exit, posing himself as local resident.” In its rush to uphold the prosecution story, the court invented the possibility of Shahzad hiding or taking shelter in other flats of the building, forgetting even the legal maxim that the prosecution is obliged to prove the case in the manner it has been alleged.

But worst of all, the court put judicial seal on a blatantly communal plea by the Addl Public Prosecutor that their case could not be corroborated by independent witnesses, as “majority of residents of that area are followers of the religion, as was of those suspects”.

The court convicted Shahzad, and sentenced him to life. In doing so, it invoked the ever-useful “collective conscience of the entire nation”, which was shocked by the killing of Inspector Sharma. This, the court concluded, was “an aggravating factor against the convict.”

Shahzad has presently appealed against his conviction in the High Court. The police has meanwhile moved an application demanding death penalty for Shahzad in a case in which they could not even prove his presence at the site on the day of the said killing.

For detailed critique of the judgement, see JTSA’s Beyond Reasonable Doubt?

The Trial in the Delhi Blasts

Following the encounter, a number of arrests were made, including of those like Zia Ur Rehman, who had voluntarily gone to the police station to show the police a copy of the police verification report of the house in which the alleged terrorists resided; or those like Saquib Nisar, who had appeared on television shows on the night of the encounter to talk about his acquaintance with those killed.

The Role of the Media

Media reporting of the encounter and its aftermath touched new lows, with blatantly communal and jingoistic headlines and stories, with little on the ground reporting and mere regurgitation of police handouts. But the worst was perhaps the cover story in India Today, which was titled, “Inside the Mind of the Bombers” (2nd October 2008). India Today’s reporter, Mihir Srivastava claimed that he met and interviewed the accused youth on the sidelines of the press conference called by the South District Police. In his ‘exclusive’ talk with the ‘bombers’ (nowhere is the simple journalistic ethic of pre-fixing ‘alleged’ before the term terrorists before the crimes have been proven, adhered to), Srivastava presented what were obviously forced confessions under real violence or threat of violence, as ‘facts’.

The Delhi High Court on October 15th 2008, asked the police to file a response as to how a journalist was allowed access to the accused in the custody of the Special Cell even before his relatives or lawyers had a chance to meet him (Indian Express, October 17). The police counsel agreed to file a response and conceded to the court that “the confessions recorded in the story were not in good taste and they had no evidential value”. (See here for response to Srivastava’s claims, repeated over and over)

The discharge of Md. Salman

Md. Salman, arrested by the Uttar Pradesh ATS from Siddharthnagar on 6 March 2010, was accused of being a conspirator in the 2008 Delhi blasts. On 5th February 2011, additional sessions Judge Ms. Santosh Snehi Mann threw out all charges against him— at the point of charge—in all five cases in Delhi bomb blasts for lack of any evidence that could prove that he had conspired to bomb various places in Delhi in 2008.

In the final hearing held on 31st January 2011 before the announcing of the verdict on charges, the Public Prosecutor, Raju Mohan—responding to very specific questions by the Judge regarding the evidence against Salman—was unable to produce anything to substantiate the prosecution’s claim. Prosecution’s case was based on three pieces of supposed evidence:

1) A Fake Passport that the prosecution claimed was seized from Salman.

It is noteworthy that no passport was placed before the court. The police claimed to have seized from him a ‘photocopy’ of the fake passport, with a false name, which gave his age as 27 years at the time of arrest.

2) A health card from Saudi Arab, which again listed his age as 27 years.

The Judge stated that if Salman had been arrested in possession of a fake Nepali passport and a health card from Dubai, these were charges that should be dealt with separately. “How does that (this evidence) make Salman a conspirator in these cases?” she asked the prosecution.

Confronted with the absence of evidence, the PP repeatedly resorted to raising the spectre of the ‘war on terror’. Does the prosecution believe that the war on terror legitimizes vitiating the due processes of law, which demand verifiable evidence? Or that lack of evidence can be substituted by the dubious doctrine of guilt by association?

Salman’s discharge at this early stage of charge indicated the weakness of the Delhi Police’s claims.

Section 268 CrPC

Almost all the boys who were arrested in 2008, following the Delhi blasts were also implicated in the Surat blasts which had occurred earlier the same year. Almost immediately, Gujarat Government took custody of close to 60 young men arrested by various state police departments for alleged terror attacks and conspiracies in their states, on the plea that they were all accused in the Ahmedabad serial blasts. Since then, the Gujarat Government has actively impeded the trials of these men in different states invoking Sec 268 of CrPC. This section allows the state government to direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained.

Unlike other states, in Delhi, the trial could proceed because of the availability of camera uplinking facility. However, the fact that the accused were lodged in Gujarat meant that there could be no consultations between them and their lawyers.

In July 2010, a Supreme Court Bench of justices V.S. Sirpurkar and T.S. Thakur, responding to a petition of the lawyers of one of the accused in blasts case, ruled that the State of Gujarat could not continue to cite Sec 268 and that it was duty bound to produce the accused in their trials outside the state. However, production warrants issued by the court in Delhi continued to go unheeded. Until one day, in late 2012, the key prosecution witness, an auto driver, failed to recognize Shakeel. He looked at the young men lined up in Ahmedabad on camera for about half an hour but could not identify Shakeel. In a quick reversal, the prosecution asked for the accused to be produced in Delhi! Thereafter in February 2013, most of the accused have been shifted to Delhi.

However, the pace of the trial was impeded when it was shifted, at a considerably late stage, to a special court set up for all Special Cell cases.

19th September is not simply a day to ritually mourn the dead, or to indulge in breast beating, but to commit oneself to upholding the constitutional values of rule of law, to not allow jingoism of any kind to overwhelm democratic values.