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May 31, 2013 at 03:07pm IST

1984 anti-Sikh riots case: HC judge recuses from hearing Tytler's plea

New Delhi: A Delhi High Court judge on Friday recused himself from hearing a plea of senior Congress leader Jagdish Tytler challenging a lower court order by which the CBI was asked to further investigate his role in a 1984 anti-Sikh riots case. "In any case, I am not going to hear it. Put this matter on July 3 before another bench," Justice Kailash Gambhir said, without assigning any reasons for his recusal from the hearing.

On Thursday, Tytler had moved the court challenging the trial court order setting aside the CBI's closure report giving him clean chit in the 29-year-old case and directing the probe agency to examine eye-witnesses and people claiming to have information about the riots. Seeking quashing of the trial court order, Tytler has in his plea said, "The trial court order is contrary to the scheme of code of CrPC. The method and mode of investigation by a probe agency is the absolute prerogative of the agency and it is not for the court to direct the agency that which witness should be examined by it."

"The settled position of law is that a direction for investigation can be given only if an offence is prima facie found to have been committed or a person's involvement is prime facie established but direction to investigate whether any person has committed an offence or not cannot be legally given," he said in his plea.

1984 anti-Sikh riots: HC judge recuses from hearing Tytler's plea

"In any case, I am not going to hear it. Put this matter on July 3 before another bench," Justice Kailash Gambhir said.

The trial court order had come on a plea by the riot victims against the CBI giving a clean chit to Tytler and filing a closure report. Senior advocate H S Phoolka, appearing for petitioner Lakhwinder Kaur, had submitted that there was material which the agency has ignored and evidence was also there before the trial court against Tytler.

The CBI, however, had sought dismissal of the plea filed by the victim saying the probe has made it clear that Tytler was not present on November 1, 1984 at Gurudwara Pulbangash in North Delhi where three people were killed during riots in the aftermath of assassination of the then Prime Minister Indira Gandhi.

Tytler's alleged role in the case relating to killing of three persons - Badal Singh, Thakur Singh and Gurcharan Singh - near Gurudwara Pulbangash was re-investigated by the CBI after the magistrate court had in December 2007 refused to accept its closure report. CBI again gave a clean chit to Tytler on April 2, 2009 claiming lack of evidence against him in the case.

On April 27, 2010, the magistrate accepted CBI's closure report in the case against Tytler, saying there was no evidence to put him on trial. The CBI had claimed that at the time of the incident, Tytler was at Teen Murti Bhawan, the residence of the then late Prime Minister Indira Gandhi, and that it has already re-investigated the case on the order of trial court but there was no sufficient evidence against the Congress leader.

The magistrate had allowed CBI's closure report, saying Tytler was present at Teen Murti Bhawan and was not at the spot of crime and the contentions of CBI were justified by material, including some visual tapes and versions of some independent witnesses.

One of the witnesses, Jasbir, now residing in California, in an affidavit had claimed before the Justice Nanavati Commission that he had heard Tytler on November 3, 1984, rebuking his men for the "nominal killings" carried out in the riots. The magistrate had rejected Jasbir's version, saying he had deposed for something which took place on November 3 while the case related to an incident of November 1, 1984.

Some of the witnesses had alleged that during the riots, Tytler was instigating the mob to kill Sikhs, a charge strongly refuted by him. The Sessions Court had set aside the CBI's closure report giving clean chit to Tytler in the case, which has now been challenged by him.

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