Not This Kind of Closure, CBI

By Jyoti Punwani

February 17, 2012

Asked by the courts to investigate the infamous Hari Masjid incident of the 1993 Mumbai riots, the country's premier investigation agency has closed the case saying it can find no 'neutral' witnesses.

Even as the Special Investigation Team's closure report in the Gujarat riots cases makes waves, in Mumbai, another closure report has attracted little attention. The parallels however, are many.

The Hari Masjid incident, like the Gulbarg Society incident, took place when communal violence was raging in Mumbai in January 1993, in the second phase of rioting after the Babri Masjid demolition. As in the Gulbarg incident, a large number of Muslims were inside a single structure, the Hari Masjid, at Wadala, central Mumbai. Locals living around the mosque, they had come there for their 1 p.m. namaz. But, as it happened with Muslims across the city that week, these namazis found their own place of worship unsafe.

Even before the prayers could begin, six of them were shot dead, four inside the mosque. One was shot at point-blank range as he emerged from the masjid. Another, last seen loading bodies into a police vehicle, simply “disappeared.” As many as 50 Muslims were arrested from the spot, for rioting and attempt to murder. The firing and arrests took place despite no Hindu in the vicinity being attacked, or any Hindu property destroyed.

Amnesty International investigated the incident soon after, took photographs of the blood-stained interiors of the Masjid, and indicted Sub Inspector Nikhil Kapse who led the police action. Five years later, Justice B.N. Srikrishna reached the same conclusion. Unlike Amnesty, the judge, as a one-man Commission of Inquiry into the riots, heard all the policemen involved, and not just the namazis. He issued notice under Sec 8 B of the Commissions of Inquiry Act to PSI Kapse so that he could defend himself. As with the other policeman to whom the commission issued a similar notice, Kapse chose not to reply. The commission indicted him for “brutal and inhuman behaviour as well as unjustified firing which killed six Muslims.”

Exonerated a third time

Nearly two decades after the incident, the country's premier investigative agency has exonerated Kapse. This is the third time he has been exonerated since the commission indicted him. The Central Bureau Of Investigation (CBI) filed a closure report on the incident in December 2011 in the Bhoiwada magistrate's court — the area where the incident took place falls in its jurisdiction — exactly three years after being asked to investigate it by the Bombay High Court

The closure report has now been challenged in the same court by the person who had asked for a CBI inquiry. Tired of waiting for the Maharashtra government to act against Kapse, Farooq Mapkar, a bank peon, who was shot in the shoulder inside Hari Masjid, had approached the Bombay High Court asking that the CBI take over the investigation. The government was non-committal; the CBI reluctant. Luckily for Mapkar, every Bench that had heard his plea found substance in it. Upbraiding the government for its half-hearted approach and demolishing the CBI's reluctance to take up what it described as a “simple” case, the Court remarked that this was a “case that affects the very soul of India.”

But as Mumbai's riot victims have found out, what judges say matters little to the State and to policemen. A sitting judge conducted an inquiry into the riots; his recommendations were ignored. When the Supreme Court ordered the government to act on them, its Special Task Force (STF), comprising hand-picked officers from across the State (the Mumbai police had been indicted as communal by the commission) went out of its way to prove the judge's findings wrong. The STF exonerated Kapse — without even meeting his victims. All they heard was Kapse's version, and that of the policemen who acted on his orders. The STF “investigation” was no different from the departmental inquiry that had led to Kapse's first exoneration.

CBI enquiry

The CBI heard the victims, and they corroborated what Mapkar had said. Yet, the agency exonerated Kapse. Why? Because it didn't find the victims' testimony credible. They were not “neutral” witnesses, says the CBI report, because they had all been accused in the rioting case filed after the firing. Justice Srikrishna had found the police story of rioting Muslims “wholly unbelievable, fabricated to support the unjustified firing.” Forget the commission's remarks — the CBI had been asked to conduct its own independent investigation. Why then did it choose to ignore the fact that all the accused in the Hari Masjid case had been acquitted, not on technical grounds, but because both Kapse and the Investigating Officer of the case, during cross-examination, had failed to substantiate any of the charges against the victims? The State had not appealed against their acquittal.

The CBI did find two “neutral” witnesses, a Muslim and a Hindu. Curiously, it chose to believe the Hindu, who contradicted Mapkar's story only on one point. But, without explaining why, it ignored the Muslim' witness's story, which corroborates the victims' version.

The CBI says it could not access documents that had been provided to the Commission: wireless messages; the police station's arms and ammunition register and its duty chart. Its closure report states that Kapse himself had the log book of police vehicles. The CBI could not access it?

When the Srikrishna Commission Report was published, all those whose family members had been killed in the Hari Masjid firing vowed to see Kapse punished. But Mapkar alone had the determination to take up the fight, helped by a tiny group of activists and lawyers, Muslim and Hindu. The same group continues to support him as he challenges the CBI's closure report. The courts haven't failed Mapkar, the State has.

Ordering the CBI to file an FIR against Kapse, Justices F.I. Rebello and R.S. Mohite of the Bombay High Court had remarked: “Nobody is listening to the plea these citizens have been making since 1993. What are they to do? Despite all that has happened, all these years the State apparatus has been saying nothing wrong has been done! Don't you feel this matter should be investigated, to restore the confidence of people in the rule of law?”

There couldn't have been a plainer indictment of the government's failure to ensure justice. Yet, it went to the Supreme Court against the High Court's order. “Kapse has suffered enough in these 16 years,” its counsel said. Again, the judiciary upheld Mapkar's faith in it. Describing the case as “extraordinary,” the Supreme Court dismissed the government's appeal.

The hearings on Mapkar's challenge of the closure report will begin on February 23. The parties that rule Gujarat, Maharashtra and the Centre, and their police, must answer one question: how long do they expect Muslim victims, who see their community constantly accused of being terrorists, to keep fighting through courts?

Source: The Hindu, New Delhi

URL: https://newageislam.com/war-terror/not-this-kind-closure,-cbi/d/6661