It is probably for the first time in the annals of post-Independence criminal jurisprudence that a senior police officer faces criminal trial, accused of the gravest of crimes – murder in cold blood. 

BY TEESTA SETALVAD

“There has already been tampering of evidence by the police in registering a fake FIR and by destroying evidence and the possibility of tampering with the evidence cannot be ruled out.”
— Justice AB Palkar, Mumbai High Court, refusing anticipatory bail to Ramdeo Tyagi, former police commissioner of Mumbai, now a Shiv Sainik.

The long arm of the law is a phrase often used to encapsulate the slow  yet ponderous manner  in which law enforcement agencies operate — police, lawyers, the courts — even in a state constitutionally wedded to principles of natural justice and the rule of law. Its use also suggests that the law does finally get to the root of injustice. And the wrongs done do eventually get set right. So  appears to be the case from the latest developments in the implementation of the Srikrishna Commission’s recommendations on the Bombay riots of 1992–1993.

On September 5, 2000, the Congress–NCP led Maharash
tra government had filed what could only be termed an apology for an affidavit before the Supreme Court (See CC, October 2000). In that document, amongst other things, the now accused former Mumbai police commissioner, Ramdeo Tyagi was exonerated for “acting in the line of official duty”. Evidently, the same Democratic Front government has since had a serious rethink. The Special Task Force (STF) of the police, appointed by it to investigate the findings of Justice BN Srikrishna, has actually charge-sheeted Tyagi with murder (culpable homicide). On January 9, 1993, Tyagi had led a SOS (Special Operation Squad) that shot dead, in cold blood, nine innocent persons who worked at the Suleman Bakery on Mohamed Ali Road, ostensibly because they were thought to be Kashmiri terrorists. 

On October 26, 1995, Tyagi, a joint commissioner of police in 1992-93, was elevated to the status of the police commissioner of Mumbai by the Shiv Sena–BJP government. Almost immediately after retirement, he joined the Sena declaring: “I am now a loyal soldier of Balasaheb (Thackeray)”.

It is probably for the first time in the annals of post–Independence criminal jurisprudence that a senior police officer faces criminal trial, accused of the gravest of crimes – murder in cold blood. The context of the crime makes the prosecution even more critical and significant – a senior officer is held prima facie guilty of leading a squad that killed nine innocent Muslim workers during a period in Bombay’s history when communal propaganda, rank prejudice and hate–mongering governed and influenced official action. Even the Srikrishna Commission has held the Mumbai police guilty of anti-Muslim bias. 

On June 7, 2001, anticipating arrest, Tyagi approached the Mumbai High Court for anticipatory bail. After two weeks of highly publicised hearings, Justice AB Palkar in his order dated July 4, 2001 refused Tyagi’s application. However, he gave Tyagi time until August 8, 2001 to appeal before the Supreme Court. 

What were the grounds for refusing to grant Tyagi anticipatory bail? Among several forwarded by senior counsel, PR Vakil, after examining the detailed evidence from police records, two are particularly significant and critical. The first is the nature, gravity and seriousness of the offence — murder in cold–blood by firing by a police squad led by a senior cop on innocent persons. The second is the antecedents of the accused — which in this specific case means tampering with the evidence immediately after the offence had been committed.

The police has been accused and found guilty of registering two false First Information Reports (FIRs) soon after the crime. These FIRs, with fabricated accounts of private firing and unsubstantiated messages on the police wireless records of that day, point to police action based on concocted rumours of private firings that were not borne out by fact. (Other police wireless messages intercepted by this writer during the riots show how rank abuse and communal vitriol were being used to influence police reactions and decisions to act impartially).

In his affidavit before Justice Srikrishna and in his defence while seeking anticipatory bail, Tyagi refused to own responsibility for the firing. His lawyer has argued that the firing was by subordinate officers alone, without any orders being given by Tyagi, who led the SOS. He has also used the argument that private firing from a floor above the bakery or a building on the opposite side (conveyed to him on the police wireless message) led to their subsequent actions in self–defence. He has further maintained that as there was no intention to cause death, a charge of murder cannot be made out. In any case, the defence argued that the delay in prosecuting Tyagi and the ‘political considerations’ behind the prosecution were reason enough for bail to be granted. 

“There is delay but it has reasons,” says Justice Palkar’s order, adding that the intention to cause death is not necessary to frame the charge of murder. How was the evidence tampered with? According to abstracts of the transcript of exchange of wireless messages submitted to the court by Vakil, a brief mention of an ostensible firing by public at the police at 12.31 pm on that day was recorded by the Pydhonie wireless. 

Justice Palkar has observed that this obviously referred to firing “by the police from the terrace on the opposite building towards bakery.” There is no police record of any station diary or wireless message to show that there was firing by the mob prior to 12.20 pm. There is no record in police documents to show that there was any firing at 9.30 am.

“The allegation in FIR CR No 46/93 (Dongri) says that the firing by the public began from 9.30 am. The FIR starts with this allegation. Normally the message would immediately be sent to the control room and also to the applicant. The task force found no evidence of firing from 9.30 am in any police record,” says the judge. Yet a SOS squad led by the joint CP crime entered Suleman Bakery, fired indiscriminately resulting in the death of nine bakery workers.

There is more. “The inquest panchnama is drawn at the JJ Hospital and not where the bodies are lying. The scene of offence panchnama  is conspicuously absent about the soot on and around where the bodies are lying”. (Charring is the burning of small particles on the clothes and person of a victim of firing caused by the short range of fire. During the post–mortem of a victim, the body tissue is examined to establish whether charring took place and thereafter to conclude whether there was short range firing or not). 

“It is not clear from the entire record as to where the bodies were found. There is no mention of bloodstains anywhere in the panch-nama. What is the reason? Can it not be said to be an attempt to hide facts and not disclose where dead bodies were lying? The empty cartridges found were of an AK 47, which were with the police. There is no evidence of firing by public with AK 47.”

The police destroyed the bloodstained clothes of all nine victims and any other evidence, including two bullets, that lodged themselves in the body of one of the victims. The judge’s order corroborates all the evidence relied on by Justice Srikrishna to indict Tyagi in his report. The commission’s observations, now supported by the STF chargesheet of May 25, demolish the much–hyped claim touted in communal mouthpieces like the SS’ Saamna and tragically reflected in the police FIR. 

The FIR (CR No 46 of 1993) claims that when the police squad entered the bakery there was a 10–15 strong group of aggressors armed with choppers, knives and iron bars advancing towards it. Despite police warnings to the group to surrender, it advanced towards the squad but “were pushed aside with minimum force” after which the police climbed to the top to tackle the armed persons (10–15) hiding behind Chunabhatti Masjid. 

The FIR claims that after the police began firing, these 8–10 persons dispersed and disappeared. Says Justice Palkar: “The allegation that all those having arms escaped does not appear credible because there was curfew and the presence of police pickets.” The judge, after examining the post–mortem reports of all nine victims, concludes that there was indiscriminate firing. 

Referring to Tyagi’s claim that he did not order the firing, the judge’s observation is sharp: “Accepting that he did not order the firing, it is obvious that he was present when the firing was going on. The question would be what Tyagi did when the firing was going on? Can he be said to be unaware? Could he not stop the firing and what is the effect of such inaction on his part when he was the person in charge of the SOS? What would be the effect of such omission on his part is also a factor to be considered”. 

The engaging of senior criminal lawyer, PR Vakil, as prosecution lawyer by the Maharashtra government to oppose Tyagi’s bail application itself signalled a sincere desire in the present government to set right it’s own earlier wrong. Vakil put forward arguments in the very highest traditions of criminal jurisprudence.

So far, the Congress and NCP leaders at the helm of affairs in the state had appeared uncomfortable and unsure about honouring their own poll promises, especially the commitment to punish guilty politicians and policemen. Such a course of action would undoubtedly mean re-opening the murky business of accountability in governance and the culpability of police officers while dealing with a communally polarised situation that epitomised Bombay in December 1992 and January 1993.

Last July, after Mumbai witnessed the drama surrounding the arrest of Shiv Sena chief Bal Thackeray, the same government that today shows grit and determination in prosecuting some of it’s own representatives, had filed an affidavit before the Supreme Court which showed little desire to cleanse the system. The public hearing of the survivors of the Bombay riots 1992-1993, organised by Communalism Combat on September 24, 2000 was to protest against this. The Citizen’s Watchdog Committee that emerged from the hearing has been pressing the same demands for punishing the guilty and ensuring reparation money payments to survivors. 

The actions of the last two months indicate a welcome change in approach and reflect some preparedness on the part of the system to correct itself. When, on the last day of his arguments for the state, senior counsel, PR Vakil recalled the impact of the actions of Tyagi and the SOS, he painted afresh the horror and reality of Bombay, December 1992-1993. “When Mr Tyagi came to the Suleman bakery, he said there was peace, he then committed breach of peace and when he left there was graveyard peace.’’

Will the new resolve that the Maharashtra government has displayed be carried forward to its logical end? 

Apart from Tyagi, the STF has acted against Gajanan Kirtikar, who was minister of state for home in the Shiv Sena-BJP coalition government. The STF has filed a charge sheet against seven persons, including Kirtikar and Shiv Sena legislator Nandkumar Kale in connection with the communal riots at Jogeshwari in north Mumbai in January 1993. They have been charged under Sections 37 (3) to be read with Sections 135, 153 and 506 and 34 of the Indian Penal Code (IPC). The charges include illegal assembly, illegal carrying of arms, and the delivering of inflammatory speeches. 

For his role in instigating the Jogeshwari riots by his inflammatory speeches in January 1993, the Srikrishna Commission indicted Kirtikar.Kirtikar and four other Shiv Sainiks accused along with him were granted bail on June 6. Besides, the police arrested three other Shiv Sainiks, including R Nachnekar from the Nirmalnagar area of Bandra east, in late June. 

Other politicians indicted by Justice Srikrishna — for provocative speeches, leading mobs to attack homes and shops after conducting mahaartis – and against whom action is yet to be initiated include: Shiv Sena leaders like Baburao Mane and Ramkrishna Keni, former chief minister, Manohar Joshi, former MP, Madhukar Sarpotdar, SS MLA, Milind Vaidya, SS leaders Ramesh More and Gajanand Kirtikar, SS leader Prakash Aayre Equally, the judge had recommended action against activists of the Tanzeem Allah-o-Akbar, for violent acts in Dharavi, and SIMI, for provocative slogans and pamphlets. 

SS leaders like Madhukar Sarpotdar and Milind Vaidya, apart from others like Gajanan Kirtikar and Prakash Aayre, were found, after detailed examination by Justice Srikrishna, to have a run of their local police stations. The police were pressurised into releasing Shiv Sainiks who were arrested and into refraining from action against other offenders. The blatant sway that the Shiv Sena had over large sections of the Bombay police at that sorry time influenced non-action in protection of the victims, as much as failure to register offences and subsequent prosecution of the guilty. 

Two Congress leaders (corporators at the time), Eknath Gaikwad and Karuna Mhatre, have been named as accompanying Shiv Sainiks Prahlad Thombre (MLA) and Kalidas Kolambkar (MLA) with a 3,000 strong mob to press for the release of Prahlad Thombre’s brother Bal Thombre. The latter was arrested by the Antop Hill police station for burning alive three Muslims in a taxi on January 12, 1993 within 150 feet of a police picket! 
Justice Srikrishna has tackled each incident with minute detail. For example, on Madhukar Sarpotdar and other Shiv Sainiks’ role in the jurisdiction of the Nirmalnagar police station, the report details: “That these morchas were intended to browbeat and pressurise the police to deter them in the performance of their duties, appears clear… In fact the assessments made in the Crime Reports suggest that if accused belonging to higher and lower ranks of the Shiv Sena were arrested, there was likelihood of flare up in the communal situation and therefore it was decided that no Shiv Sainik would be arrested”. (Volume II, Chapter 1, 21.27). 

Justice demands that prosecutions be launched against all of them.