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The Ishrat Jahan case is a classic illustration of how an investigation agency and an intelligence outfit can come into conflict. It is widely believed there are sharp differences between the Central Bureau of Investigation (CBI) and the Intelligence Bureau (IB) over the role of Rajinder Kumar, an IB officer of rank only one level below the director, in the case. Rajinder Kumar was once posted in Gandhinagar and is suspected to have a connection to the extra-judicial killing of 19-year-old Ishrat and three young men by the Gujarat police.
The Union home secretary reportedly held a sort-it-out meeting with the chiefs of the two agencies. The outcome is not known. But the CBI, which is investigating the case, seems to have an open mind on Rajinder Kumar’s involvement: it has not indicted him in its first chargesheet. The Gujarat police had made out that Ishrat and the three men shot dead with her were terrorists on a mission to assassinate chief minister Narendra Modi; that they had been intercepted and shot dead by its officers. Investigators have since found it was a fake encounter. Rajinder Kumar is said to have provided intelligence input to the Gujarat cops. Was this to facilitate the extra-judicial killing? But the CBI seems to have weighed the officer’s record and unsullied reputation as it bought time to decide on his culpability. Now, the CBI and IB chiefs would do well to navigate past the gathering storm of inter-agency conflict.
Prosecuting an IB officer for passing on to the state police information that was possibly inaccurate, if not absolutely false, requires a high degree of application of mind. The media has created the unfortunate impression that some subjectivity and politicisation has crept into the CBI’s investigation of Rajinder Kumar’s role. I won’t buy this without solid, substantiating facts. After all, this is an investigation monitored by the Gujarat High Court: the CBI can’t play around with vital facts. If Rajinder Kumar is at all prosecuted, we will be able to arrive at its basis only after basic facts are gleaned from the CBI’s chargesheet.
In my view, the officer can be prosecuted only if he had been mixed up in local politics or was driven by a dubious personal agenda in furnishing false information to the Gujarat police. To fasten him to the crime, we must also ask these questions: Did he directly take part in the encounter? Was he present at the scene? Did he have the authority to aid in the execution of the diabolical conspiracy hatched by the state’s “encounter specialists”?
The IB, it must be remembered, is not a legal entity. It was created by an executive order and is merely an “attached office” of the Union home ministry. It has no powers under the Criminal Procedure Code (CRPC), which lays down investigation procedure for the police. So, before an IB officer is charged with criminal conspiracy—as, it is bruited, Rajinder Kumar might be—his role in a questionable encounter must be analysed clinically. If he is going to be hauled up as individual, and not as an IB officer, his mens rea (criminal intent) has to be proved. If, however, he is chargesheeted as an IB officer, the question will be on his legal authority, if any, and its messy entanglement with the crime.
The chargesheeting will also require clearance from the Union home ministry. It is anybody’s guess whether the ministry will accede to a CBI request on this. The ministry will be well within its right to refuse. This is usually not justiciable unless the facts are overwhelmingly against Rajinder Kumar, in which case the trial court could ignore the lack of clearance from the ministry and proceed with his prosecution. But such an action could be regarded as bad in law; a higher court could strike it down.
Even if Rajinder Kumar retires from the Indian Police Service (IPS), as he shortly will, prosecuting him under any section of the Indian Penal Code (IPC) will require the home ministry’s clearance. Without such clearance, a retired officer can be prosecuted only under anti-corruption laws. It is all, therefore, quite complicated. There is no clear-cut information available for the media to make the sort of categorical assertions it has made. The column-centimetres and prime-time news slots are riddled with speculation and conjecture. May I call for some responsibility here, in the interest of nursing the morale of the officers of a sensitive organisation like the IB, which plays a crucial role in national security?
(The writer has served as a joint director of the IB and as the director of the CBI.)