The Ahmedabad Crime Branch Police has apparently been caught on the wrong foot in requesting the then Chief Metropolitan Magistrate (CMM) to hold an inquiry into the June 15, 2004 “police encounter” in which Ishrat Jehan and three others were killed near the Kotarpur waterworks on the outskirts of the city.

According to legal experts, the inquiry under Section 176 of the Criminal Procedure Code as it existed then was held by a sub-divisional magistrate (SDM) — the SDMs are appointed by the government and often considered pliable. But a Central amendment of the Cr. PC later gave the authority to hold such inquiries to the Metropolitan Magistrates, a wing of the judiciary over which the governments has no control.

The Crime Branch’s request of 2004 for an inquiry into the “encounter” by its own police force was apparently intended to counter the doubt raised then by some human rights activists about the bona fides of the police action. It apparently expected the SDM to give a favourable report to silence the human rights activists, but the Central amendment turned the tables on the police, say the legal experts

Legal sources said that for about four years no action was taken on the Crime Branch request because no Metropolitan Magistrate was willing to stick his neck out in the sensitive issue. It was only on August 12 this year that the CMM forwarded a letter to Ahmedabad Metropolitan Magistrate S.P. Tamang to inquire into the encounter and submit his report at the earliest. He completed the task in just 25 days and submitted the report to the CMM on Monday.

None of the magistrates, however, made the report public. It was released to the media by the advocate for one of the petitioners in the case before the Gujarat High Court, Mukul Sinha. He said that when he came to know that Mr. Tamang had submitted his report, he applied to the Metropolitan Court for a certified copy and was provided with one on Monday evening.

Mr. Sinha is the advocate of Gopinath Pillai, father of Javed Sheikh alias Pranesh Pillai, in the case before the High Court.

Even as the government raised questions about the authority of the Metropolitan Magistrate to hold an inquiry under Section 176 other than in a case of custodial deaths, the legal experts pointed out that under Section 176, the Metropolitan Magistrates had been given suo motu powers to inquire into any “unnatural death.” In case of custodial deaths and suspected dowry deaths, such inquiry was mandatory but in other “unnatural deaths” as in a police encounter, it was left to the discretion of the judicial authority to hold an inquiry.

“Mr. Tamang has not acted beyond his jurisdiction and the inquiry into the Ishrat Jehan encounter under Section 176 was justified and within the law, particularly in this case the inquiry was at the behest of the Crime Branch police itself,” the experts said.

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