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Sheena Bora Trial: What the top cop revealed

March 08, 2019 14:27 IST

Indrani exclaimed excitedly, her face lighting up like a little girl's: "I know him soo0o well."
Sanjeev Khanna, Accused No 2, jokingly suggested to Badami: "Influencing the witness!"
Badami retorted good humouredly: "She can't influence witnesses. She can only influence you and Peter."
Vaihayasi Pande Daniel reports from the Sheena Bora murder trial.
Illustration: Dominic Xavier/Rediff.com

Illustration: Dominic Xavier

On arrival at the Mumbai city civil and sessions court, Kala Ghoda, south Mumbai, on Thursday, March 7, 2019, a sunny spring day, Nagpur Police Commissioner Dr Bhushan Kumar Upadhyay briskly strode down the court annexe's third floor corridor, heading first to CBI Special Judge Jayendra Chandrasen Jagdale's chambers to offer his salutations.

Accused No 1 Indrani Mukerjea, clad in a light blue shirt, white pants, black shoes and a touch of sindhoor at the edge of her hairline, was sitting on the backless wooden bench outside Courtroom 51, deeply immersed in her legal papers. But she, her expressive grasshopper eyes always roving about, the inimitable antennae quivering, never ever missing much, saw Dr Upadhyay walk past.

She exclaimed excitedly, her face lighting up like a little girl's, to CBI Public Prosecutor Bharat B Badami: "I know him soo0o well."

Sanjeev Khanna, Accused No 2, in orange and brown, sitting at a bench a little away, jokingly suggested to Badami: "Influencing the witness!"

Badami retorted good humouredly: "She can't influence witnesses. She can only influence you and Peter."

Laughter.

 

When the hearing began shortly after 3 pm, the police officer became Prosecution Witness 37 in the Sheena Bora murder trial.

It lasted nearly an hour -- quite a bit longer than the 10 seconds Indrani's trial lawyer Sudeep Ratnamberdutt Pasbola had predicted to Badami the previous week, when he faulted him for not bringing enough witnesses quickly enough and wasting time.

Before that, Peter Mukerjea, wearing khaki and white, took the stand to request the judge for progress on his bail application which he had filed in November 2018.

Pleading with the judge -- "I am an old man" -- Peter requested some quicker movement on his plea.

Judge Jagdale reassured him.

Later, the judge asked Badami when he would give his answering arguments to the bail application and firmly persuaded him into replying by Friday, March 8.

CBI Special Prosecutor Kavita Patil, in a floral silk sari with a black border, took Dr Upadhyay through his testimony in chief.

The police officer, a fairly tall man of strong build, starchy-looking in his police uniform, the Ashoka lions emblem and crossed swords on his epaulets and a medal on his chest, took the witness stand and greeted the judge with, "Sir, namaskar."

Still wearing his hat and carrying his brown police baton under his left arm, he began to testify, first offering his personal details and that he was presently the police commissioner of Nagpur (since July 2018) but had been principal secretary of the home department of Maharashtra in Mumbai in 2015.

Patil: "Sir, are you aware about the Sheena Bora murder case?"

Dr Upadhyay: "Yes."

Patil: "In what context you came across this case?"

Dr Upadhyay: "I came across it (during the) transfer of this case to the CBI."

Judge Jagdale: "The file came to your department for transfer of the investigation to the CBI?"

Dr Upadhyay: "Yes."

Patil: "What was the decision?"

Upadhyay: "The decision was by the home ministry that this case should go to the CBI."

Dr Upadhyay's face was guarded throughout the hearing, his face conveying little, a flat expression always in place, his eyes at times sweeping the room, his hands holding the railing.

He spoke carefully, strongly, offering minimum, bare-boned answers, addressing both Pasbola and the judge as "Sir".

There was nothing about his manner, through that one hour, to indicate the colourful, eloquent, man he actually is -- a 1989 Maharashtra cadre Indian Police Service officer, who hails from Bihar, awarded four prestigious police medals, with a PhD in Sanskrit and near perfect fluency in Urdu, for which he received an award from the Maharashtra Urdu Sahitya Akademi in 2016.

The author of a few books, Urdu was a language Dr Upadhyay picked up -- through various postings in Solapur, Jalgaon, Chandrapur, Pandharpur, Osmanabad, Latur -- he has said in several public speeches, to aid his police work because he felt Urdu was a language that united people and brought harmony, just like said literature does.

The commissioner confirmed that a notification was issued to that effect by him to have the Sheena Bora murder case transferred to the CBI and was willing to identify the notification and his signature on it.

A paper was presented to him by the clerks, at Patil's say so, when Pasbola objected saying it was not an original.

The judge dismayed, shaking his head: "Not an original?"

The paper showing this notification was examined and re-examined and other papers were rearranged to see if an original was about. Dr Upadhyay's aides, who had perhaps accompanied him from Nagpur, came forward with their files and copies.

Pasbola teased Patil, "Madam aap ke ghar mein ho sakta hai (maybe it is in your home)."

The judge looked askance at the prosecution and clucked in Marathi, perturbed: "Three (court) dates have gone by and the originals are still not there. I don't understand."

It was decided that the originals would be eventually produced while Patil continued conducting Dr Upadhyay's 'chief' and the senior police officer was asked to compare the different copies of this notification.

Pasbola intervened sharply again: "The question is of comparison of what with a photocopy?!"

Patil, miffed: "Why you shouting?"

Badami echoing Patil, in solidarity: "Don't shout."

Patil, piously: "You can address the court in a mild voice. Maintain the decorum of the court."

Badami, adding his two bits: "In a sound voice."

Pasbola, equanimously and logically: "But I have a sound voice."

Badami countered: "I am also having double voice."

The police officer had a copy of the notification with him. While not the original that Pasbola was seeking, the commissioner's document was deemed an 'original office copy' that had Dr Upadhyay's signature on it.

The judge: "Original signature?"

Dr Upadhyay: "Yes."

The judge, with a laugh, his eyes twinkling: "Every time it should be the original."

Judge Jagdale, whose pleasant face radiates positivity, succeeds in always ably and smoothly maintaining, unusually, both a level of dignity and a kind of good-humoured peace in Courtroom 51.

Badami, reminding Pasbola of his earlier 10 second declaration: "Ten minutes ho gaya (Already ten minutes have elapsed)."

Pasbola came back with: "Khush? (Happy?)"

Dr Upadhyay blandly looked on, watching the banter. Not exactly bemused. Not entirely comprehending either.

All newcomers to court are perhaps puzzled by the equations that exist. The prosecution and defence may spar and quarrel, engaged in non-stop chillam chilli (clamour), sometimes alarmingly, but it also accompanied by loads of joviality and jesting.

The lawyer got up to cross-examine the commissioner addressing him respectfully throughout as Dr Upadhyay.

His initial endeavour was to understand how the notification for a transfer of the Sheena Bora murder case from the Khar police station, north west Mumbai, which was investigating the case in August-September 2015, under the supervision of then Mumbai police commissioner Rakesh Maria, to the CBI, came about, from whom and the reasons for that decision.

It transpired that the letter, dated September 18, 2015, ordering the transfer of the case came from then director general of police Sanjeev Dayal (who retired in December that year) and was addressed to then Maharashtra additional chief secretary K P Bakshi.

Dr Upadhyay accepted the proposal that "very day" and it was put on file and sent to the home affairs minister, a post being held then (and now) by Maharashtra Chief Minister Devendra Fadnavis, who accepted on also the same day too and the notification was issued.

At the time, only three people were in the know of this proposal and notification, Dr Upadhyay being the fourth and the desk officer who drew it up the fifth.

Pasbola questioned Dr Upadhyay narrowly but politely and wondered what was Dr Upadhyay's reason for accepting the proposal.

Dr Upadhyay, quietly but steadfastly: "I felt that the letter of the DG director general of police) was in the interest of justice."

Pasbola, succinctly: "You were in a lower rank to the DG at that time?"

Upadhyay: "Yes."

After a pause he strategically added, neutralising Pasbola's suggestion calmly: "As per protocol I was not working as (a police officer then), I was working as a secretary to the Government of India and was not under the DGP."

The lawyer asked about the documents accompanying the proposal, to justify it.

The commissioner, who still had some papers in front of him, swiftly shuffled through them, doing some quick homework on the stand, before answering.

He confirmed there were no documents accompanying the proposal.

Pasbola checked if he had the proposal for that September 2015 notification with him.

He had.

The lawyer requested that the proposal be put before the court.

A small ruckus erupted. Both Patil and Badami were adamant that it was a "highly confidential document" of the government and could not be tabled in court.

At the back in the accused box, Indrani was eagerly on her feet, also asking that it be shown to the court.

Pasbola pointed out that a document deemed confidential within the government did not translate to mean it was confidential in a court too.

That is the intriguing aspect of a courtroom, that applies through and through -- before a court nothing entering from outside is sacrosanct.

Dr Upadhyay might be a police commissioner outside the courtroom, but his jurisdiction ends as he enters the court.

Interactions between lawyers and witnesses (no matter who they are), quite like how it is between journalists and their subjects, occurs with a special ruthless impunity afforded to lawyers.

While lawyers might speak with respect with a witness during a trial, everyone is strictly on the same plane, where there is no hierarchy.

The power play here is quite different, with a lawyer having the right to best a police commissioner in argument or through cross-examination.

Also, only when you enter a courtroom do you fathom the absolute power of a judge, who is almost no less than a god of a democracy and the awe in which he is to be held.

A three-way exchange began with the judge asking Pasbola to show that the document was needed in the interest of a fair trial.

Pasbola declared: "There was interference of the then commissioner of police... The facts are there on record."

He added later angrily that they needed to know why the case was transferred, "In the beginning there was a criminal conspiracy" to implicate his client he implied.

The lawyer named no names, but it was clear he was referring to Rakesh Maria and his perceived interest in this case which implicated Indrani and Peter Mukerjea.

Patil kept protesting that it was confidential, with Badami backing her up.

Pasbola, vexed by their joint noisy protest: "Doh doh jan chilane ka zaroorat nahin hai? (Do two people have to keep shouting?) We have ten," pointing to the flank of black suits on his left, indicating he could get them to start yelling too.

Badami, equally aggravated: "You bring ten more."

Pasbola: "Let it not be a machchi (fish) bazaar."

He also argued before the judge that one had look at through a different "prism" and how it was all "very nebulous" and said there was no law that the accused should not see it and that he did not see "what prejudice is caused by taking it (proposal) on record."

Pasbola mentioned as well that portions of the proposal could be used by the defence at a later date

Patil suggested that they ask the commissioner and also said it was for the court to decide.

The judge turned to Dr Upadhyay, who cautiously agreed that it should be left up to the court to make a decision.

Judge Jagdale put down on record: "I have gone through the contents of the proposal. In my opinion, in the interest of (a) fair trial the proposal can be (produced) on record though it was confidential official correspondence still, I hold that, the contents of the said proposal will be helpful for fair trial..."

Pasbola to the judge: "My lord, grateful."

And then turning to the commissioner, "Now Dr Upadhyay, do you know that there were two different cases?"

Elucidating further, he said there was the initial arms act case against Shyamvar Pintu Rai, the Mukherjeas's driver, now the approver in the case. And then the case of murder.

Upadhyay said he did not know the actual details of the case and also that the proposal had been drafted by a desk officer at Mantralaya, the seat of the Maharashtra government.

Pasbola then zoomed in on his crucial last two questions: "Please see your notification. And please see your proposal. Section 3 and 25 of Arms Act (implicating Accused No 3 Shyamvar Pinturam Rai for possession of an illegal firearm) not there in the proposal."

Dr Upadhyay agreed it was not there. Although it was there in the notification.

Pasbola: "You will not be able to say why it was added?"

Dr Upadhyay: "No."

Pasbola: "As per this notification it is there," implying that there was no reasoning why both cases under the Arms Act and case of 302 Indian Penal Code (punishment for murder) were transferred to the CBI, since for some mysterious reason it was not in the initial proposal, which was only about transferring the case relating to Sheena's murder to the CBI.

The defence asked for a copy of the proposal.

A further rumpus started up.

The prosecution was not willing to give it.

Pasbola interjected, saying it was now an exhibit and it had to be given.

Badami said the defence had to "solemnly swear" not to reveal its contents to anyone else.

The judge cut in, beaming: "Don't scandalise the court."

Looking at Indrani's lawyer Gunjan Mangla, who was scanning the document with her phone, Badami was horrified: "Don't WhatsApp it!"

Mangla protested vigorously, "I am not WhatsApping it. I am scanning it", explaining, amused, giggling, that there was more than one thing that one could do with a cellphone.

Badami expressed surprise, mock amused puzzlement writ large on his face, either about the unbelievable advance of technology or towards the events unfolding before him, mumbled something to the effect: "These days what is happening I don't know."

After the hearing ended, he came out into the corridor, still muttering, "They want originals. Everyone wants proof. Opposition wants proof of surgical strikes. Kisi ko kacha channa nahin khana hai, pakka channa khayenge (everybody wants only the final product, nothing half-baked)."

The next hearing is set for March 12.

Vaihayasi Pande Daniel