A 29-year-old anti-Sikh riots case came back to haunt senior Congress leader Jagdish Tytler with a Delhi court on Wednesday setting aside the Central Bureau of Investigation’s closure report giving clean chit to him and ordering reopening of investigation into the killing of three persons.
The order on one of the 1984 anti-sikh riots case also came as an embarrassment for the CBI which was opposing the plea for further investigation as the court found fault with the probe by the agency which did not examine the available witnesses.
"The order of trial court accepting the closure report dated April 27, 2010 is set aside.
"The CBI is directed to conduct further investigation in the light of aforesaid facts and to record the statements of witnesses, who it had come to know during the investigation itself, are claiming/shown/named to be the eye witnesses of the incident," Additional Sessions Judge Anuradha Shukla Bhardwaj said.
Wednesday's order came as a big jolt to Tytler, who had got a clean chit twice from the CBI which had closed the case. The court said that CBI had an "obligation" to record
the statement of US-based three persons, whose names were taken by an eye witness that they were also present with at the spot.
“The moment this statement of the witness was recorded irrespective of whether he was telling truth or lie, the investigating agency had an obligation to have recorded the statements of these persons or at least to have made enquiry from them.
"We understand that the CBI reserves its right to conclude that these witnesses were planted and not truthworthy and thus to file a closure report giving its opinion on the
issue, however, it did not have any right to have not recorded the statements of these witnesses and thus to have prevented the court from forming its own opinion regarding reliability of these witnesses," it said.
Facing flak for its probe, CBI said it will study the verdict before deciding the course of action. Agency sources, meanwhile, maintained that they had sent a team to record the statement of the witness based in the United States but his statements were not found to have any evidential value.
The court's order came on a plea by the riot victims against the CBI giving a clean chit to Tytler and filing a closure report. Senior advocate H S Phoolka, who had appeared for the riot victims and complainant Lakhvinder Kaur whose husband Badal Singh was killed during the riots, had sought the court's direction to the CBI to further investigate the case to ascertain Tytler's alleged role in the riots.
The CBI had, however, sought dismissal of the victim's plea saying the probe has made it clear that Tytler was not present on November 1, 1984 at Gurudwara Pulbangash in North Delhi where three people were killed during the riots and was rather at Teen Murti Bhawan, where Indira Gandhi's body was lying in state.
The court also rejected the CBI's plea that one Resham Singh, who had approached the agency for recording his statement claiming to be an eye witness of the incident, was a "false and planted" witness.
"Unless CBI recorded the statement of Resham Singh who claims that he was eye witness of the incident, it cannot conclude that this witness is a planted or false or unreliable witness," the judge said.
Resham Singh, who is in the US, along with two others had approached the CBI to record their statements. The court also refused to accept CBI contention that complainant Kaur had no "locus standi" in the petition as she was neither a witness nor a complainant in the main riot case.
"The right of Kaur was recognised by the magistrate before it and after hearing her an order was passed, which was not to the satisfaction of the petitioner. If there were no remedy given to Kaur to challenge the said order, the very purpose of giving her the said right at the first instance would be frustrated.
"In view of the above, I conclude that the right of petitioner to file revision petition emanates from the right given to her by the order of the magistrate to contest the closure report, which remained unchallenged," the judge said.
Senior advocate H S Phoolka, who had appeared for the riot victims and complainant Lakhvinder Kaur whose husband Badal Singh was killed during the riots, had sought the court's direction to the CBI to further investigate the case to ascertain Tytler's alleged role in the riots.
The CBI had, however, sought dismissal of the victim's plea saying the probe has made it clear that Tytler was not present on November 1, 1984 at Gurudwara Pulbangash in
North Delhi, where three people were killed during the riots and was rather at Teen Murti Bhawan, where Indira Gandhi's body was lying in state.
The court also rejected CBI's plea that one Resham Singh, who had approached the agency for recording his statement claiming to be an eye witness of the incident, was a "false and planted" witness.
"Unless CBI recorded the statement of Resham Singh who claims that he was eye witness of the incident, it cannot conclude that this witness is a planted or false or unreliable witness," the judge said.
Resham Singh, who is in the US, along with two others had approached the CBI to record their statements. The court also refused to accept CBI contention that complainant Kaur had no "locus standi" in the petition as she was neither a witness nor a complainant in the main riot case.
"The right of Kaur was recognised by the magistrate before it and after hearing her an order was passed, which was not to the satisfaction of the petitioner. If there were no remedy given to Kaur to challenge the said order, the very purpose of giving her the said right at the first instance would be frustrated.
"In view of the above, I conclude that the right of petitioner to file revision petition emanates from the right given to her by the order of the magistrate to contest the closure report, which remained unchallenged," the judge said.
The CBI had given a clean chit to Tytler on April 2, 2009 claiming lack of evidence against him in the case pertaining to the murder of three persons on November 1, 1984, in the aftermath of the assassination of Indira Gandhi.
However, on April 27, 2010, a magistrate had accepted CBI's closure report in the case against Tytler, saying there was no evidence to put him on trial.
The trial against another accused Suresh Kumar Paniwala is going on and so far 13 prosecution witnesses have been examined in the case. Paniwala is facing charged of murder and and inciting the mob during the riots.
The court had allowed CBI's closure report saying Tytler was present at Teen Murti Bhawan and was not at the spot of crime and the contentions of CBI were justified by material, including some visual tapes and versions of some independent witnesses.
One of the witness, Jasbir (now residing in California), in an affidavit, had claimed before the Justice Nanavati Commission that he had heard Tytler on November 3, 1984, rebuking his men for the "nominal killings" carried out in the riots.
The court had rejected Jasbir's version, saying he had deposed for something which took place on November 3 while the case related to an incident of November 1, 1984.
Some of the witnesses had alleged that during the riots, Tytler was instigating the mob to kill Sikhs, a charge strongly refuted by him.
