Missing Ishrat Jahan papers: Delhi Police registers FIR on government complaint

The FIR mentions criminal breach of trust by a public servant (IPC Section 409). ‘Documents and valuable securities (affidavit)’ are recorded as “stolen”.

The five missing documents pertain to the controversial second affidavit filed by the Home Ministry under the UPA government in the Gujarat High Court, on September 29, 2009. The high court was hearing a case filed by Ishrat’s mother Shamima Kausar.

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In its first affidavit filed in the court on August 6 that year, the Home Ministry had argued against a CBI probe. It had cited Intelligence Bureau inputs that Ishrat, her companion Javed Shaikh alias Pranesh Pillai, Zeeshan Johar and Amjad Ali Rana — killed in an alleged encounter by the Gujarat Police on June 15, 2004 — had been part of a Lashkar-e-Toiba sleeper cell. “Ishrat was actively associated with LeT,” that affidavit had stated.

Six weeks later, on September 29, in a second affidavit, the Home Ministry had said the IB inputs were “not conclusive proof” that the persons killed had terror links. It had also said that the government had no objection to the court ordering a CBI probe, as demanded by Ishrat’s mother.

A Home Ministry official said the filing of the FIR was “just part of routine procedure”. “Since Home Minister Rajnath Singh had announced in Parliament that some papers had gone missing, the next step was to file a police complaint as is the case when any property goes missing. Nothing more should be read into it.”

Deputy Commissioner of Police (New Delhi district) Jatin Narwal said, “We have registered an FIR and started investigating the case.”

In the complaint to the Delhi Police, the Home Ministry says, “When the Ishrat Jahan case was widely discussed in the media in the first week of March 2016, the file was examined by the ministry in detail… and it was found that five documents had gone missing.”

The complaint also lists the documents. These are office copy of the letter and enclosure sent by then home secretary G K Pillai to then attorney general (AG) G E Vahanvati on September 18, 2009; office copy of another letter sent by Pillai to Vahanvati on September 18, 2009; ‘draft further affidavit’ as vetted by the attorney general; ‘draft further affidavit’ as amended by then home minister P Chidambaram on September 24, 2009; office copy of the ‘further affidavit’ filed in the Gujarat High Court on September 29, 2009.

G K Pillai had stoked a controversy in February this year when he said that the affidavit was changed “at the political level”. And that Chidambaram, in his capacity as then home minister, had personally dictated changes in the affidavit to drop any references to Ishrat’s LeT links.

Calling it “an absolutely correct affidavit”, Chidambaram had stood by the second affidavit, saying intelligence inputs on Ishrat’s terror links were not conclusive evidence. He had also said that G K Pillai as home secretary was “equally responsible” for the second affidavit.

The FIR by the Home Ministry states “an internal enquiry” into the missing documents was ordered on 14th March, 2016. “The then Addl Secretary (Foreigners), MHA was appointed as the Enquiry Officer… The Enquiry Officer submitted his Enquiry Report on 15th June, 2016. As per finding of the report, how, why and under what circumstances these papers were missing or were removed from the file, is a matter of investigation,” it says.

In his enquiry report, then additional secretary (Foreigners) B K Prasad had found that the documents laying the groundwork for the second affidavit of September 2009 had gone missing during exchanges between the then home secretary (G K Pillai) and the then home minister (Chidambaram). He had concluded that the documents were never placed in the file at all, and gone missing between September 18 and September 24, 2009.

The Indian Express had reported on June 16 that Prasad had not only told a witness in the missing papers probe the questions he would ask but also suggested to him what answers he should give — that he had not seen any of the documents. This coaching of a witness by the man heading the investigation had put a question mark on the integrity of the probe, which was announced in the Lok Sabha by Rajnath Singh on March 10.

The Indian Express had also reported a phone conversation on April 25, 2016, between Prasad and a former director in the MHA, Ashok Kumar, now Joint Secretary (Parliament, Hindi Division and Nodal Officer for monitoring of court cases) in the Department of Commerce, whose statement was recorded as part of the probe the next day.

Prasad, however, claimed that he conducted a “free and fair inquiry” and that no evidence had been produced to establish that Kumar had been tutored during their conversation.

In his inquiry report, Prasad had stated that, “if the statement of Joint Secretary (D Diptivilasa, who was JS, Internal Security-I from January 1, 2008, to March 3, 2010) is to be believed to be true, then the only possibility that remains is that these (missing) documents were delinked/retained during the movement of the file between the then Home Secretary and the then Home Minister”.

The inquiry had found that the file pertaining to the second affidavit was not put up by the director or any of the subordinate officers of the Internal Security division before Diptivilasa, who initiated the file notings pertaining to the second affidavit on September 18, 2009. The file was returned to Diptivilasa on September 24, with instructions from Pillai to get the affidavit filed.

In his statement, Diptivilasa had said when the file was returned to him, the papers were not in it.

In his final conclusions, Prasad had stated, “it is evident that these papers which have been found as ‘missing’ from the file have not been put up on the file at all and have gone missing during the period 18.09.2009 and 24.09.2009 itself and not during any subsequent period”.

“These papers appear to either have been knowingly removed from the file or may be unintentionally misplaced during the period 18.09.2009 and 24.09.2009 either by those who have dealt with this file during the period or by some other officer/staff under whose custody this file would have been during this period of time,” it had added.

The report had also said that a draft copy of a letter addressed to then AG, the late Vahanvati, by G K Pillai, on September 18, 2009, had been recovered from the computer at the office of the Home Secretary and it referred to some discussions in the chamber of the Law Minister in regard to the supplementary affidavit.

“However, the fact that there was some discussion in the chamber of Hon’ble Law Minister regarding filing of supplementary affidavit has not been recorded anywhere on the file either by the Joint Secretary or by the then Home Secretary,” the report had said.