The Supreme Court on Monday stayed till December 7 all proceedings in the Gujarat High Court in the case of the alleged fake encounter killing of Ishrat Jahan on June 15, 2004.
A Bench of Justices B. Sudershan Reddy and Deepak Verma was acting on a special leave petition filed by Ishrat’s mother Shamima Kaushar. She had challenged the September 9 High Court order that stayed Metropolitan Magistrate S.P. Tamang’s report, which said the incident was a fake encounter.
The petitioner’s counsel, Kamini Jaiswal, said the matter was listed for final disposal on Monday, though the Supreme Court, on October 6, issued notice to the State and the matter had been pending for five years.
Additional Advocate-General of Gujarat Tushar Mehta sought a week’s time for filing a counter. Attorney-General G.E. Vahanvati said the High Court order should be stayed in the meanwhile.
The petitioner said she had sought a CBI probe. The High Court had committed a grave error in law as well as on facts in arriving at a finding that Mr. Tamang’s inquiry amounted to parallel proceedings and overstepping his limits, she said.
The High Court order was based on an erroneous interpretation of Section 176 (1-A) of the Cr. PC as every unnatural death “entails an inquest under Section 174 Cr.PC to ascertain the apparent cause of death.” An investigation by the police and an enquiry by a judicial magistrate under Section 176 (1A) were distinct but simultaneous proceedings, and indeed the “Cr.PC mandates the carrying out of these parallel proceedings.”
The SLP said: “It is a gross misrepresentation of the law and the constitutional mandate for the Gujarat police to argue that the persons who were killed in the so-called encounter are terrorists belonging to the banned Lashkar-e-Taiba and, therefore, by implication are not protected by the law of the land in the same manner as ordinary citizens.”