Tuesday, December 6, 2011


The ones that got away

No one was punished for the riots in Mumbai that followed Babri Masjid's demolition, 19 years ago. We look at three cases

Jyoti Punwani

Posted On Wednesday, December 07, 2011 at 02:18:29 AM

No one was punished for the demolition of the Babri Masjid. The men behind it adorn Parliament and are treated as elder statesmen.

No one was punished for the riots in Mumbai that followed the demolition. Those indicted for it have risen in life. The findings of a sitting High Court judge, the Justice B N Srikrishna Commission of Inquiry, have been overturned by policemen. A few victims and lawyers continue to try to get the guilty punished.

A petition to implement the Srikrishna Commission Report, filed in 1998, soon after the report was tabled and rejected by the then Shiv Sena-BJP government, is still being heard in the Supreme Court. The last hearing was in 2008.

The few measures taken to punish the guilty of 1992-93 were due to the Supreme Court and a pro-active Chief Justice A S Anand. In 2000, the newly-elected Congress-NCP government set up a Special Task Force (STF) on the instructions of the Supreme Court, to look into all offences mentioned in the report.

The STF filed criminal cases against a large number of policemen and alleged rioters, going far beyond the recommendations of the Srikrishna Commission. Not one resulted in conviction – the STF filed cases with no evidence to back them – and put up half-hearted prosecutions in court.

In 2007, harsh sentences were handed down to the accused in the March 12, 1993 bomb blasts cases. Angry Muslims pointed out that no one had been punished for the riots that were the cause of the blasts. The Congress-NCP government then set up two Special Magistrates' Courts to try riot cases. These were wound up in six months, after hearing 83 cases and handing down convictions in six.

The convicted included Sena leader Madhukar Sarpotdar.

A look at three landmark cases.

Suleman Usman Bakery and R D Tyagi: The big fish got away

In 2001, former Police Commissioner R D Tyagi and 17 other policemen were charged by the STF under Section 302 of the Indian Penal Code (murder), for the raid against Suleman Usman Bakery that left eight innocents dead, after then Chief Justice of India A S Anand specifically asked what action had been taken against Tyagi.

The case generated huge excitement; the legendary P R Vakil was appointed the government's special public prosecutor. The then home minister Chhagan Bhujbal didn't want Tyagi's anticipatory bail application opposed.

However, public pressure forced Bhujbal to change these instructions. Vakil's powerful arguments convinced Justice S S Parkar that a prima facie case of murder had been made out, and anticipatory bail was rejected. However, the former CP checked into hospital the moment he knew he was to be arrested, checking out only when he finally got bail, granted only because it had already been granted to his co-accused.

None of the murder accused spent a moment in custody; nor did they have to face trial. Tyagi and nine co-accused policemen were discharged in 2003 by Sessions Court Judge P V Bavkar, who said Tyagi had simply done his duty by ordering the raid; he was not responsible for the killing that took place inside the bakery and adjoining madarsa.

Only the eight policemen who actually fired during the raid were ordered to face trial. The STF didn't inform special public prosecutor P R Vakil about the discharge application; its routine PP contested the discharge plea. The government didn't appeal against the discharge.

Maulana Noor ul Huda, who had been injured during the raid, appealed all the way to the Supreme Court, which upheld the discharge this year. The trial of the eight policemen who were not discharged has yet to begin; the incident is now 19 years old.

The Hari Masjid firing Nikhil Kapse – Charmed life

Police firing at Wadala's Hari Masjid left six persons dead, four of them inside the masjid. Amnesty International and the Srikrishna Commission held PSI Nikhil Kapse responsible for unjustified firing, inhuman conduct and fabricating records. But the STF exonerated him without even speaking to those who had been injured.

In December 2008, the Bombay High Court, approached by Farooq Mapkar (one of the injured), ordered a reluctant CBI to take over the investigation, saying the case "affects the very soul of India".

The CBI filed a case of murder against Kapse in February 2009, but never arrested him. By then, Kapse had been promoted to Inspector. The State government rushed to the Supreme Court to save Kapse; but the Court refused to interfere, and gave the CBI six months to finish investigations.

Last week, the CBI filed a report in court; a year after its deadline had lapsed, asking that the case be closed due to lack of evidence. Though it spoke to those who had deposed before the Commission, the CBI refused to believe them, because they had been accused by Kapse of rioting.

Justice Srikrishna found this accusation "wholly unbelievable"; so did the Sessions Court which acquitted them in 2006. The CBI found two "neutral" witnesses, but chose to believe only one of them, who contradicted the victims' version. The testimony of the second, which went against Kapse, was ignored. The CBI also claimed it could not access crucial documents of the concerned police station – documents that had been produced before the Srikrishna Commission.

If the court accepts the CBI plea, Mapkar plans to appeal – another long and lonely fight ahead.

The Sarpotdar case Convicted but free

Former Sena MLA and MP Madhukar Sarpotdar was the only high-profile Sena leader to be convicted for the 1992-93 riots, 15 years after the offence. The case under Section 153 A of the Indian Penal Code (promoting communal enmity), that had been lingering in various courts since 1993, concerned a Shiv Sena procession in December 1992 led by Sarpotdar, during which inflammatory placards were displayed and provocative slogans and speeches made.

Special Sessions Court Magistrate R C Bapat Sarkar found enough evidence in the documents produced by the Prosecution to conclude that Sarpotdar, Ashok Shinde and Jaywant Parab had in fact made speeches "aimed at kindling the Hindu populace into an aggressive stance", and sentenced them to a year's imprisonment and a fine of Rs 5,000. The three were released on bail immediately, and filed an appeal against their conviction.

The Congress-NCP government announced it would appeal for a harsher sentence and appoint a special public prosecutor. Neither promise was kept. The appeal against the conviction has since passed through three courts with no hearing ever taking place.

Sarpotdar passed away 18 months after his conviction.

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