NHRC sends notice to the Government of India for lending the services of CBI for investigating the authenticity of the tapes telecast by ‘Aaj Tak’ under the caption of ‘Operation Kalank’
New Delhi March 31, 2008
The National Human Rights Commission has issued notice to the Government of India for lending the services of CBI for investigating the authenticity of the tapes telecast by ‘Aaj Tak’ under the caption of ‘Operation Kalank’ where highlighted the ghosts of post-Godhra violence in Gujarat never seem to die.
Taking suo-motu cognizance of the report telecast by ‘Aaj Tak’, a TV channel in a programme captioned “Operation Kalank” on October 25, 2007. The programme included confessions of some persons who implicated and also many state functionaries of Gujarat in the unleashing of violence on the minority community. The revelations bode ill for the future of human rights in the country. Therefore, the Commission which is already seized of the unfortunate episode since March 1, 2002 in case no. 1150/6/2001-2002, decided to direct a CBI investigation regarding the authenticity of the tapes and the allegations made therein and vide proceedings dated November 5, 2007, advised the State Government of Gujarat to communicate its consent for CBI investigation to the Central Government and the Commission within two weeks.
The Government Gujarat, vide letter No. SB II/COM/1007/337/SPL TEAM dated 22.11.2007 expressed inability to give its consent for CBI investigation. It submitted that the aspects under consideration of the Hon’ble Commission are very much in seisin before the Justice Nanavati and Justice Shah Commission and because of that also, the Hon’ble Commission would not like to invite the intervention of CBI even as per the provisions of the Protection of Human Rights Act, 1993”. The State Government also pointed out that National Human Rights Commission had filed petitions before the Supreme Court seeking transfer of nine cases for trial outside Gujarat and after the telecast of ‘Operation Kalank’ Ms. Teesta Setalvad had moved a petition for early hearing of all the petitions pending in the Supreme Court and the Supreme Court did not entertain the said request of early hearing. It has also been contended on behalf of the State Government that no investigation by an agency like CBI into the alleged exposure by the telecast of ‘Operation Kalank’ is necessary in-as-much as in respect of various incidents and offences reflected in the said telecast, necessary actions have already been taken and the trials are pending and in the meantime, if any further material is made available, the same can very well be placed before the concerned courts as per the provisions of Section 173(8) of Cr. P.C.
CBI is an independent investigative agency under the Delhi Special Police Establishment Act. While investigating criminal offences under Delhi Special Police Establishment Act, CBI discharges the investigative functions of police and it exercises powers and jurisdiction under Cr. P.C. Since the police or policing is within the exclusive jurisdiction of the State (Entry 2, List II, Schedule VIIth of the Constitution of India), Section 6 of the Delhi Special Police Establishment Act provides that the consent of the Government of the State, in which the investigation is to be conducted, shall be necessarily obtained before commencement of CBI investigation in that State. The position is, however, different when CBI conducts investigation under the provisions of Section 14 of Protection of Human Rights Act, 1993. While making investigation u/s 14 of the Act CBI works under the direction of NHRC and it exercises limited powers enumerated in Subsection 2 of Section 14. Therefore, the term ‘concurrence’ in Section 14(1) of the Act has a different connotation. It simply means concurrence in respect of borrowing and utilizing the services of any officer or investigation agency. If the Officer or investigation agency is under the control of the Central Government, the concurrence of the Central Government is required and if it is under the control of the State Government the concurrence of the State Government has to be asked for.
Since CBI is an investigation agency of the Central Government, the Commission was only required to ask the Central Government to give its concurrence to lend services of CBI and it was not legally bound to obtain the concurrence of the State Government of Gujarat before requisitioning the services of CBI for investigating the authenticity of the tapes of ‘Operation Kalank’ and the allegations contained therein. In the proceedings dated November 5, 2007, the concurrence of the State Government was requested as a matter of courtesy only. As mentioned above, the State Government has some reservations on the aspect of jurisdiction of the Commission. The objections regarding jurisdiction have been found to be untenable and misplaced. Therefore, the decision to direct a CBI investigation is hereby reiterated.
The Government of India be asked to communicate its concurrence to lend the services of CBI for investigating the authenticity of the tapes of the sting operation telecast by ‘Aaj Tak’ under the caption ‘Operation Kalank’ on 25.10.2007 and the revelations made therein. The Commission earnestly hopes that the State Government of Gujarat will render all cooperation required of it for the purpose of investigation.
The Commission has given four weeks time to Government of India to communicate its stand on the question of entrusting the investigation to CBI.
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The National Human Rights Commission has issued notice to the Government of India for lending the services of CBI for investigating the authenticity of the tapes telecast by ‘Aaj Tak’ under the caption of ‘Operation Kalank’ where highlighted the ghosts of post-Godhra violence in Gujarat never seem to die.
Taking suo-motu cognizance of the report telecast by ‘Aaj Tak’, a TV channel in a programme captioned “Operation Kalank” on October 25, 2007. The programme included confessions of some persons who implicated and also many state functionaries of Gujarat in the unleashing of violence on the minority community. The revelations bode ill for the future of human rights in the country. Therefore, the Commission which is already seized of the unfortunate episode since March 1, 2002 in case no. 1150/6/2001-2002, decided to direct a CBI investigation regarding the authenticity of the tapes and the allegations made therein and vide proceedings dated November 5, 2007, advised the State Government of Gujarat to communicate its consent for CBI investigation to the Central Government and the Commission within two weeks.
The Government Gujarat, vide letter No. SB II/COM/1007/337/SPL TEAM dated 22.11.2007 expressed inability to give its consent for CBI investigation. It submitted that the aspects under consideration of the Hon’ble Commission are very much in seisin before the Justice Nanavati and Justice Shah Commission and because of that also, the Hon’ble Commission would not like to invite the intervention of CBI even as per the provisions of the Protection of Human Rights Act, 1993”. The State Government also pointed out that National Human Rights Commission had filed petitions before the Supreme Court seeking transfer of nine cases for trial outside Gujarat and after the telecast of ‘Operation Kalank’ Ms. Teesta Setalvad had moved a petition for early hearing of all the petitions pending in the Supreme Court and the Supreme Court did not entertain the said request of early hearing. It has also been contended on behalf of the State Government that no investigation by an agency like CBI into the alleged exposure by the telecast of ‘Operation Kalank’ is necessary in-as-much as in respect of various incidents and offences reflected in the said telecast, necessary actions have already been taken and the trials are pending and in the meantime, if any further material is made available, the same can very well be placed before the concerned courts as per the provisions of Section 173(8) of Cr. P.C.
CBI is an independent investigative agency under the Delhi Special Police Establishment Act. While investigating criminal offences under Delhi Special Police Establishment Act, CBI discharges the investigative functions of police and it exercises powers and jurisdiction under Cr. P.C. Since the police or policing is within the exclusive jurisdiction of the State (Entry 2, List II, Schedule VIIth of the Constitution of India), Section 6 of the Delhi Special Police Establishment Act provides that the consent of the Government of the State, in which the investigation is to be conducted, shall be necessarily obtained before commencement of CBI investigation in that State. The position is, however, different when CBI conducts investigation under the provisions of Section 14 of Protection of Human Rights Act, 1993. While making investigation u/s 14 of the Act CBI works under the direction of NHRC and it exercises limited powers enumerated in Subsection 2 of Section 14. Therefore, the term ‘concurrence’ in Section 14(1) of the Act has a different connotation. It simply means concurrence in respect of borrowing and utilizing the services of any officer or investigation agency. If the Officer or investigation agency is under the control of the Central Government, the concurrence of the Central Government is required and if it is under the control of the State Government the concurrence of the State Government has to be asked for.
Since CBI is an investigation agency of the Central Government, the Commission was only required to ask the Central Government to give its concurrence to lend services of CBI and it was not legally bound to obtain the concurrence of the State Government of Gujarat before requisitioning the services of CBI for investigating the authenticity of the tapes of ‘Operation Kalank’ and the allegations contained therein. In the proceedings dated November 5, 2007, the concurrence of the State Government was requested as a matter of courtesy only. As mentioned above, the State Government has some reservations on the aspect of jurisdiction of the Commission. The objections regarding jurisdiction have been found to be untenable and misplaced. Therefore, the decision to direct a CBI investigation is hereby reiterated.
The Government of India be asked to communicate its concurrence to lend the services of CBI for investigating the authenticity of the tapes of the sting operation telecast by ‘Aaj Tak’ under the caption ‘Operation Kalank’ on 25.10.2007 and the revelations made therein. The Commission earnestly hopes that the State Government of Gujarat will render all cooperation required of it for the purpose of investigation.
The Commission has given four weeks time to Government of India to communicate its stand on the question of entrusting the investigation to CBI.
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