The Supreme Court on Tuesday issued notice to the Gujarat government on a petition filed by the mother of Ishrat Jahan (who was killed in an alleged encounter) challenging the Gujarat High Court order that stayed the report of Metropolitan Magistrate S.P. Tamang describing the incident as fake encounter.
A Bench consisting of Justices B.N. Agrawal and Aftab Alam, after hearing counsel Kamini Jaiswal, also issued notice to the Centre and the Central Bureau of Investigation on the petition filed by Shamima Kaushar seeking a direction to vacate the interim stay order passed by the High Court on September 9.
Assailing the High Court order, 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 the enquiry conducted by Mr. Tamang into the killing of Ishrat Jahan and three others amounted to conducting parallel proceedings and overstepping his limits, the petition said.
The special leave petition 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.” It pointed out that the magistrate’s report was exhaustive, based on the evidence made available to him by the police, including post-mortem, forensic and ballistic reports.
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 on June 15, 2004, including the petitioner’s daughter, are terrorists belonging to a banned organisation called Lashkar-e-Taiba and, therefore, by implication are not protected by the law of the land in the same manner as ordinary citizens.”
The High Court had failed to take note of the fact that the Magistrate had come to a conclusion that none of the persons killed belonged to such a banned organisation, it said and sought a direction to quash the impugned order and an interim stay of its operation.