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ARGUMENTS ON BEHALF OF CBI

31. The Ld. SPP for CBI had argued that the incident in the present case related to the period from 31.10.1984 till 03.11.1984 i.e. 4 days after the killing of Smt. Indira Gandhi by Sikh bodyguards. What happened thereafter were riots/ genocide of Sikhs and about 3000 people died in Delhi. Very few FIRs were registered and there were no postmortem reports, no bodies were given last rites by the families. There was no police help and no intervention by any wing of the administration. A few FIRs that were filed were on the pretext of farce investigation and equally farcical prosecution leading to acquittals but in a rare case of East Delhi, there was conviction. Not satisfied with the situation and as there was uproar of civil society, a Commission was appointed in the name of Ranganath Misra Commission in 1985. In all 10 Commissions and Committees were formed over the next 15 years culminating in Nanavati Commission which gave an exhaustive report in 2005. Amongst the various recommendations made by the Nanavati Commission, one was that CBI be handed over investigation of those cases which were untraced or where closure reports were filed. Reference was made to D-15 Ex.PW10/M which was a letter written by Shri K.P. Singh, Ministry of Home Affairs to Shri U.S. Misra, Director of CBI and that there was a specific recommendation in the same relating to the accused Sajjan Kumar. The Mangolpuri cases were not registered by CBI initially. The Delhi Cantt case had resulted in acquittal which reached the Hon'ble High Court and thereafter the accused had been convicted and he was serving life sentence along with other accused persons.

ARGUMENTS ON BEHALF OF THE COMPLAINANT

60. The Ld. Sr. Advocate for the complainant had submitted that as per the orders of the Hon'ble Supreme Court, in 2018, a fresh SIT was constituted to investigate the cases further and reference was made to the orders of the Hon'ble Supreme Court. A Supervisory Committee was appointed by the Hon'ble Supreme Court of two retired judges to go into the cases and SIT had submitted its report and the matter was pending before the Hon'ble Supreme Court. It was a matter to be considered why repeatedly cases were reopened. Fresh investigation was started sometime by CBI and sometime by SIT. Even the Hon'ble Supreme Court had to constitute an SIT headed by a High Court Judge because it was the biggest massacre which had taken place in India and it was so stated even in the Senate of US and talked about throughout the world and India's name had been maligned because the guilty had not been punished despite India being a democracy. 30-32 years had passed but nothing had happened. The earlier investigation had been a farce and perfunctory and not done properly and the Court had to see why the cases were reopened and that defective investigation should not become a hindrance. It was submitted that the statement given to Raj Singh in 1985 was itself a farce and in every case where the Court had returned conviction in the 1984 cases, the Court had to ignore the defective investigation and the Court had criticized the role of the police. It was submitted that the cases of Duli Chand v. State (supra) and State v. Manohar Lal (supra) pertained to Trilokpuri area in East Delhi and State through CBI v. Sajjan Kumar and others (supra) was of Delhi Cantt area which were two different corners of Delhi and the present case was of Sultanpuri, which was of the third corner. In the whole of Delhi, the same thing was happening and the same modus operandi was followed by the mob and in State through CBI v. Sajjan Kumar and others (supra) it was held that it was a crime against humanity and it was a genocide and when it is a case of genocide, then it is an international crime and it cannot be equated with a normal crime. It was submitted that even after 34 years, the Hon'ble Supreme Court was appointing fresh SIT to show to the world that the country was governed by rule of law and that no one was above the law. Reference was made to the judgment of Hon'ble Ms. Justice Gita Mittal in Court on its Own Motion v. Mahender Singh Manan and Ors. Crl. Rev. P. No.248/2017 decided on 29.03.2017: MANU/DE/0857/2017 which also pertained to Delhi Cantt. area and ultimately the case was decided in State through CBI v. Sajjan Kumar and others (supra) and A1 was convicted.

63. It was submitted that in the present case, it was the Delhi Police which still held power as was clear from the judgment in State through CBI v. Sajjan Kumar and others (supra) and it refused to protect even the CBI Officers showing the kind of influence exercised by the accused and the same police did the investigation and the prosecution which aspect could not be ignored by the Court. India was a signatory to the Convention on Genocide of 1959, the Government had stated before the Rajya Sabha that the law was enough and there was no need for a new law but there was failure in implementation of the law. The Court had to see the intention to enforce the law and to ensure that nobody was permitted to defeat it by adopting clever tactics and the Court had to decide keeping in view the prevailing situation of that time of a person who is in the position of a victim with no one to support him and the police was also discouraging and the atmosphere was such that the government machinery was going out of way to support the accused. The poor people could not be expected to stand up. The era pre 2005 and post 2005 had to be seen. It was only in 2013 while making statement in the present case that the witnesses were given witness protection and reference was made to the order of DSLSA dated 27.09.2013. It was submitted that the present case was on a better footing than State through CBI v. Sajjan Kumar and others (supra) as in that case, the prosecution witness Jagdish Kaur had not named A1 in the affidavit whereas in the present case PW7 had named A1 at the first instance. It was submitted that India had taken an active part in saving human rights but in India itself the accused had not been punished. In several countries, the issue of genocide of 1984 was raised in the Parliament. The Hon'ble Supreme Court and the Government were so concerned that they were opening and reopening the cases but every time the efforts were being frustrated and the case had to be seen in context of the same. The Ld. Sr. Counsel for the complainant had relied upon several judgments.

64. The Ld. Senior Counsel for the complainant had argued that 3000 Sikhs had been killed and the background of the cases had to be seen and also how many FIRs were lodged. Sikhs were victims and had suffered during the riots. There was an admission that an incident of rioting had taken place and people had been cut and burnt and there was no less than a genocide. FIR No.347/91 was connected to RC-25. The entire cross- examination which had been done on behalf of the accused persons was to show the files of the earlier trial or the closure reports or to prove that the witnesses had seen the documents or were aware that the closure report had been filed or that they were aware about resiling from the previous statements but there was no cross-examination on the fact of genocide. It was not put to the witnesses that the witnesses were not present at the spot or that they did not see A1 or that no such incident had happened and the credibility of the witnesses was sought to be challenged only on the ground of the closure reports. There was one incident which was the killing of the then Prime Minister which led to a genocide and the case of the prosecution was that A1 provoked, incited, goaded and he was the leader. The charge was framed in two phases i.e. one against A1 and the second charge against the others and reference was made to the charge against A1 and that he was charged under Section 109 IPC. There were also charges for substantive offences. The effect of the cross-examination was to put case files to the witnesses and to show that they were not supporting their own testimony but the same was of little value given the fact and circumstances of the case.