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The Central Bureau of Investigation on Friday told the Supreme Court that the special anti-riots cell of the Delhi police had conducted "sham investigations and farce prosecutions" in the 1984 anti-Sikh riots to apparently shield senior Congress leader and former Member of Parliament Sajjan Kumar, a key accused.
In an affidavit, the agency has urged the apex court to vacate the August 13 stay granted by it and pleaded it 'seriously prejudiced' the prosecution against the Congress leader. A bench of Justices P Sathasivam and B S Chauhan, while taking on record the affidavit, posted to September 7 the final hearing of the agency's plea to prosecute Kumar for the riots in which 60 people were killed.
"Mr Dave, nobody is insensitive," the bench said when senior counsel Dushayant Dave, appearing for one of the victims, asked the court to vacate the stay on the ground that it involved the emotions of thousands of people.
The CBI, in its affidavit, said, "It will also be adjudged during trial as to whether the petitioner (Kumar) has played a role in causing delay. It cannot also be lost sight of the fact that 24 complaints were investigated in one FIR about scores of deaths and because of sham investigation and farce prosecutions, there has been failure of justice, for which the victims are aggrieved."
The agency questioned the intention of the anti-riot cell of the Delhi police in filing status reports on July 31, 2008 in the trial court when the investigation was already been conducted by the CBI.
"There was no occasion for the Delhi police to deal with the case once the entire material was supplied to the CBI by the government of India from the custody of the Delhi police (on October 10, 2005)," the agency said.
The CBI also accused the Delhi police of filing another status report in the trial court on July 31, 2008 and pointed out that the trial judge and the Delhi high court have happily termed it as a "clandestine attempt to hush up the matter".
The CBI accused Kumar of attempting to drag the trial on one pretext or the other and said his plea for staying the trial was another such attempt. "The present petition has been filed with the only object of delaying the trial. It is well settled that at the present stage of framing of charge, the material on record has not to be examined meticulously by weighing it in golden scale," the CBI said.
In other words, the agency argued that whether the fresh charges framed against Kumar by the trial judge on May 15, 2010 was justified or not has to be examined at the stage of the trial.
"A perusal of final report (chargesheet) would show that there are direct allegations which are proved by evidence against the petitioner (Kumar) about his involvement in the commission of crime in the present case," the affidavit stated. Citing the apex court's earlier judgments, the CBI said that at the stage of framing charges, no weight is to be attached to the probable defence of the accused as such matters have to be dealt with at the trial.
The apex court had on August 13 stayed for two weeks trial proceedings against Kumar, who is facing murder and other charges in the anti-Sikh riot cases. It had issued a notice to CBI on Kumar's appeal challenging his prosecution.
In a special leave petition, Kumar had contended that the complainants' testimony against him were unreliable. He had said the complainant, Jagdish Kaur, had filed a sworn affidavit before the Rangantha Mishra Commission on September 7, 1995, in which she named several Congress leaders but nowhere did she name Kumar. But in May 2000, she filed an affidavit before the G T Nanavati Commission naming Kumar as the man who led the mob which killed her husband and son.
However, thereafter in her personal deposition before the Commission, she did not mention Kumar's name anywhere, the appeal had stated. The counsel submitted that again in 2006, the complainant had deposed before CBI that she had heard Kumar inciting the mob.
Hence, he pleaded her testimony could not be relied upon. Similarly, the counsel submitted that two other witnesses had surfaced after 23-24 years to depose against Kumar.
The high court had on July 19 refused to quash various charges, including that of murder, against Kumar, saying the delay in prosecution has apparently benefited him. Kumar, a former Outer Delhi MP, is facing prosecution in two cases in which he has been accused of inciting a mob against the Sikh community in the aftermath of the then Prime Minister Indira Gandhi's assassination on October 31, 1984.
"The interest of justice requires that the offences allegedly committed by accused persons are expeditiously tried to preserve the rule of law in the society," the high court had said while directing the trial court to hold the proceedings against him expeditiously in the riots cases.
The trial court had in May this year framed charges under sections 302 (murder), 395 (dacoity), 427 (mischief to cause damage to property), 153A (promoting enmity between different communities) and other provisions of the Indian Penal Code, paving the way for the trial of Kumar and five others.
The CBI had accused Kumar of provoking people against members of Sikh community during the carnage that led to the killing of five persons in Delhi Cantonment area.
Besides Kumar, other accused in the case are Balwan Khokhar, Krishan Khokhar, Mahender Yadav, Captain Bhagmal and Girdhari Lal.
The CBI had filed two chargesheets against Kumar and others on January 13 in the riots cases registered in 2005 on the recommendation of the Justice G T Nanavati Commission which inquired into the sequence of events leading to the riots.
The trial court had on July 7 framed charges against the politician in another case in connection with the anti-Sikh riots.