OFFICE OF SHRI GOOLAM E-VAHANVATI ATTORNEY GENERAL FOR INDIA [FTS No. 1816/Adv.A/2011 - AC Dy.

88/Opin/2011]

I have perused the reference dated 25th May, 2011, which has been sent to me in view of the fact that there is a disagreement between the Director, CBI and the Director of Prosecution, CBI. The Office Memorandum dated 9th July, 2001 provides that in such a case the matter is to be referred to the Attorney General for India for his opinion.

The issues on which my opinion is sought are as under : (a) Whether the facts and circumstances of the case that have come on record during investigation render Shri Rajendra Rathore liable for proceution in this case? (b) If yes, what are the sections of law for which he is liable to be prosecuted?

This is a case which has been investigated by the CBI pursuant to the directions of the Supreme Court dated 9th April, 2010 in an SLP filed by Smt. Sushila Devi, wife of the late Dara Singh, By Virtue of the said directions the CBI took over the investigation and registered the case on 23rd April, 2010. The investigation done by the CBI, which has examined more than 287 persons and obtained 320 documents. clearly shows that there has been fake encounter. On this aspect there is no dis-agreement. The Director of Prosecution, the Additional Director and the Director CBI agree that there was a conspiracy to kill Dara Singh in a purported encounter. The only question is with regard to the whether there is a sufficient evidence which establishes the involvement of Shri Rajendra Singh Rathore, who was the Cabinet Minister in the Rajasthan State Government at the relevant time.

I have carefully considered the Note of the Director of Prosecution dated 15.4.2011. I have also seen the opinion of the Additional Director, CBI dated 17th April, 2011.

Paragraph 404 of the Note, which has been approved by the Director, CBI is important and reads as follows: "In my view, therefore, we may prosecute all the accused, as recommended by HOZ and DOP, except Rajendra Singh Rathore in the first stage and collect more evidence of his involvement during the custodial examination of others. Even though an argument may be advanced that policemen who break the law at the instance of politicians or for their advantage should not suffer alone and face the consequences, such sympathy may be misplaced as those who exceed or misuse their powers do so to their own peril".

Thus, it is clear that there is no proposal to give a clean chit to Shri Rathore what is sought to be done is not to name Shri Rathore as an accused at this stagte but to collect more evidence of his involvement.

It is this proposal which has been approved by the Director, CBI in the circumstances, the disagreement is narrow after a careful consideration of the papers I do believe that this is a fit case for further investigation and to collect more evidence of the involvement of Shri Rathore. Threre are several aspects which require further investigation and scrutiny.

It seems that one of the important aspects which has been taken into consideration is that there have been four telephonic conversations between Shri Rajendra Singh Rathore and Shri A.K. Jain on 4th October, 2006, 5th October, 2006, 16th October 2006 and 19th October, 2006. These calls have not been recorded but it has been assumed that Shri Rathore called Shri Jain and "apparently" asked for apprehension of Shri

Dara Singh. For all these calls, with regard to the content of the converstion, the word used is "apparently". To my mind this becomes a mere assumption.

There is another very important aspect of this case with regard to an alleged meeting which is said to have taken place on 15th October, 2006. The director of proscution in his note observes. "The CDR details of Rajendra Singh Rathore indicates that a meeting was held by Rathore with A.K. Jain at latter's residence".

The only basis on which the inference is drawn that such a meeting took place is that the location of the two persons is shown in the same Tower Area. A Tower Area may comprise several Zones. The mere location of two persons within a particular tower does not indicate that the persons met, much less that Rathore visited A.K. Jain's house. This is obviously a matter which requires to be further investigated.

There are several other aspects which need to be carefully considered and investigated. The Additional Director has suggested that these aspects may be probed during the custodial interrogation of the other accused. Whatever be the nature of suspicion at this stage, suspicion by itself cannot be a substitute for evidence. There is a case for further investigation. At this stage, I need not emphasize other aspects which have been sufficiently brought in the notes, which are referred to above.

In view of the above, I agree with the opinion of the Additional Director, CBI which has been approved by the Director, CBI that more evidence should be collected of the alleged involvement of Shri Rajendra Singh Rathore and thereafter, it may be considered whether he should be joined as an accused or not.

Goolam E- Vahanvati Attorney General for India 27.5.2011

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