By investing Justice K Chandiwal with the powers of a civil judge, the MVA govt could've proved its bona fides, writes Olav Albuquerque

A retired high court judge does not have the power to force unwilling witnesses to depose before him or submit vital documents as does a judge who has been appointed under the Commission of Inquiry Act (CoIA), 1952.

Even a judge appointed under CoIA can only submit a report to the appointing authority, which can accept or reject his findings. The Maha Vikas Aghadi government would have proved its bona fides if it had cloaked Justice Kailash Chandiwal with the powers of a civil judge under the CoIA.

When the Srikrishna Commission report into the 1992-93 Mumbai riots was tabled in 1998 by the Shiv Sena government in the Maharashtra legislative assembly after the Bombay high court directed it to do so, the House rejected the report as “one-sided and biased against a certain community”. The high court could do nothing, which proves governments can thwart judicial findings.

Aguiar Report

In 1999, the Bombay high court rejected the findings of the Judge A S Aguiar Report in 1998 holding an innocent peanut vendor had been killed in cold blood -- having been assumed to be a gangster called Javed Fawda -- as well as two gangsters, Sada Pawle and Vijay Tandel. The bench, comprising Justices N Arumugam and Ranjana Desai, junked the Aguiar Report which was thorough and submitted its findings after being appointed by a previous bench of the same high court comprising Justices Ajit Shah and J A Patel. Rarely, justice and the judiciary do not mix.

So, by not investing Justice Kailash Chandiwal with the powers of a court under the CoIA, the MVA government has followed its predecessors. First, appoint a retired judge as a one-man probe panel. Then either reject the findings or ensure he has no judicial powers to summon witnesses to produce evidence.

The conclusion appears obvious: The retired judge will have no choice but to state there appears no evidence to prove that Home Minister Anil Deshmukh forced Vaze to collect Rs 100 crore from 1,750 liquor bars and eating houses. So, those behind Deshmukh will never be exposed. And the people will be told that Param Bir Singh wanted to destabilize the government.

UAPA case

In sharp contrast, the smashed laptops, DVRs and other electronic material dumped in the Mithi river which have now been recovered will be used to convict Sachin Vaze under the stringent Unlawful Activities Prevention Act because the NIA has recorded him being taken to the Mithi river to point out where he dumped the electronic evidence.

The UAPA has section 43E, which mandates the court will presume an accused like Sachin Vaze is guilty of a terrorist act if any evidence is recovered at his instance and bears his fingerprints. So, in a karma catch-up, Vaze will pay for allegedly killing 63 men, one of whom was Mansukh Hiran.

What is surprising is that while hearing the PIL filed by Param Bir Singh, the division bench comprising Chief Justice Dipankar Datta and Justice Girish Kulkarni asked the petitioner to first file an FIR before the court could order an inquiry. But the high court has the power to convert the disgraced police chief’s petition into an FIR or order the police to register an FIR.

CBI probe

To another query as to whether the high court could appoint a CBI probe when the state government has already appointed a retired judge to do it, the answer is yes. In 2011, when the NOIDA Entrepreneurs Association took the NOIDA government to court, a one-man inquiry probe comprising Justice Murtaza Hussain was set up without an FIR being registered.

But the Supreme Court directed the state government to treat the petition as an FIR and give its consent for a CBI probe. Whether Param Bir Singh has an animus against Anil Deshmukh is immaterial at this juncture because the Supreme Court has reiterated this is not a ground to discard such complaints which have to be weighed against the evidence collected. It is evidence which needs to be assessed, not inter-personal equations.

So, we come to the conclusion that while the National Investigation Agency has a cut-and-dried formula to follow, 69-year-old Justice Chandiwal, who retired in 2014 from the Bombay high court, will have a stupendously difficult task. The judge heard sensitive Narcotics Drugs and Psychotropic Substances Act matters since 1993 in the Mumbai sessions court.

The Aurangabad-born judge is well-versed in criminal procedure and knows very well he cannot compel the production of recorded phone calls or DVRs outside Anil Deshmukh’s residence which will prove or disprove whether the home minister really summoned Sachin Vaze.

Six months for probe

Perhaps Justice Chandiwal could have asked to be appointed under the CoIA before conveying his assent to hold the probe. He has been given six months to finish the probe by which time, the NIA may have filed its charge sheet against Sachin Vaze under the UAPA.

What Vaze has divulged to the NIA cannot be used to convict him unless he records his statement under Section 164 of the Criminal Procedure Code. Being a retired high court judge, Justice Chandiwal can administer the oath to Sachin Vaze under Section 164 before recording his statement from which he cannot resile.

The moot legal point under the CIA or UAPA is all witnesses are immune from prosecution for whatever they divulge to a judge in open court. If this protection is not extended to those deposing before Justice Chandiwal, the entire proceedings become farcical because witnesses will be afraid to depose against those in power.

So, Opposition leader Devendra Fadnavis’s alleging the judicial probe “is an eyewash because without judicial powers to order witnesses to furnish documents, its scope will be limited,” carries a sharp sting.

So, if Sachin Vaze was allegedly acting under the orders of his top bosses within the government when he was allegedly parking the booby-rigged Scorpio before Mukesh Ambani’s fortress-like home may never be known. Truth eludes those who seek it.

The writer holds a PhD in law and is a senior journalist-cum-lawyer of the Bombay high court.

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