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Court puts Tytler back in the dock

Author: Aneesha Mathur
Publication: The Indian Express
Date: April 11, 2013
URL: http://www.indianexpress.com/news/court-puts-tytler-back-in-the-dock/1100662/0

Setting aside a 2010 order which had accepted a closure report in an anti-Sikh riots case with a CBI clean chit to Congress leader Jagdish Tytler, a Delhi court on Wednesday directed the agency to reopen investigation into the death of three persons and destruction at the Gurudwara Pul Bangash during the 1984 riots following the assassination of Prime Minister Indira Gandhi.

In April 2010, a trial court had accepted the closure report in which the CBI claimed it had been unable to find any evidence against Tytler. The agency had named 43 witnesses and said not one had been able to confirm Tytler's presence at the Gurudwara Pul Bangash on November 1, 1984.

But Lokender alias Lakhvinder Kaur, widow of one of the men killed in the attack on the gurudwara, filed a revision petition against the closure report, claiming that the CBI had failed to examine certain witnesses who had seen Tytler at the scene of the crime.

Additional Sessions Judge Anuradha Shukla Bhardwaj, while setting aside the 2010 order on Wednesday, reprimanded the CBI for not recording the statements of all available witnesses. "Non-examination of these persons by the CBI was improper," the court said.

"CBI is directed to conduct further investigation... and to record the statements of witnesses, who it had come to know during the investigation itself, are claiming/shown/named to be the eyewitnesses of the incident," Bhardwaj said.

She dismissed the CBI plea that the witnesses had come forward at a later stage and had not given statements to the police or commissions of inquiry. She cited a Delhi High Court observation on "the state of the country as it was then" for the reticence of the witnesses.

Senior advocate H S Phoolka, representing petitioner Lakhvinder Kaur, argued that four men — Santokh Singh, Alam Singh, Chanchal Singh and Resham Singh — claimed to have been present at the time of the attack, and had also been mentioned in the statement made by Surender Singh whose statement had been recorded by the CBI.

 Resham Singh had also filed an affidavit before the court stating that he had come forward to record his statement at the Indian consulate in New York in 2008, but his statement was not taken by the CBI team.

The court also dismissed the CBI plea that Surender Singh, who died before he could be examined as a witness by the court, had changed his statement at various points.

"Going by the law laid down by the Supreme Court, contradictions in the statements of witness Surender Singh given at different points of time could not be analysed and read for or against any party at the stage of summoning, to hold that the witness was not reliable. The trial court accepted the plea of CBI that this witness was not reliable and since he having died could not explain the contradictions in his statements, there would be no evidence against Jagdish Tytler," ASJ Bhardwaj said.

The court said it was "ironic" that the CBI had dismissed the statement by Surender Singh since he could not be examined in court, whereas it had "insisted the framing of charge against accused Suresh Kumar Panewala in this very matter on the basis of the statement of one witness Harminder Singh, who admittedly had died before the charge could be framed."

While allowing that the CBI had the right to file a closure report after concluding that witnesses were planted, the ASJ said the agency "did not have any right to have not recorded the statements of these witnesses and thus to have prevented the court from forming its own opinion regarding reliability of these witnesses".

In fact, this was also the plea of petitioner Lakhvinder Kaur that "it is not for the CBI to consider whether or not a witness is reliable; the agency was under an obligation to have recorded the statement leaving it for the court to consider whether or not these witnesses were reliable".

ASJ Bhardwaj said: "Unless CBI recorded the statement of PW Resham Singh who claims that he was eyewitness to the incident, it cannot conclude that this witness is a planted or false or unreliable witness."

Noting that agency "was aware that there are as many as four witnesses who are claiming/shown/named to be the eyewitnesses", the court observed that the four witnesses named in the petition were also named by Surender Singh.

Observing that the agency had included statements by a number of witnesses after asking them "specifically" about the presence of the alleged eyewitnesses, the court said that "propriety was in having recorded both the versions i.e. of the persons claiming that they were present, and the ones who were claiming that they were not present, leaving it for the court to decide which out of the two was reliable, more so because the CBI was filing the closure report and not a chargesheet".

Lakhvinder Kaur, who was present in court when the order was passed, said she was "happy" yet skeptical about the future of the case. "They have filed a closure report twice, it has been 29 years. What justice will they give us now," Kaur said about the CBI.

CBI spokesperson Dharini Mishra said the agency will study the court order and decide on the future course of action.
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