The enigma of Ayodhya’s missing files

Lucknow: The controversy over Ayodhya’s “missing files” started in 2002, when on April 25, 2002, Zafaryab Jilani, the legal counsel of Sunni Central Waqf Board (SCWB) submitted before the full bench consisting of Justice Syed Rafat Alam, Justice Bhanwar Singh and Justice Khem Karan at the Lucknow bench of Allahabad High Court that the Deputy Commissioner of Faizabad be directed to produce certain documents to the High Court, particularly due to their efficacy for the ends of justice. The concerned documents were:
1] Letter no. G.E. No. 4671/-148/111-1949 dated July 20, 1949 sent by Government. of UP to the District Magistrate, Faizabad.UP; 2] Letter no. 4671 (2) /-148/111-1949 dated September 3, 1949 sent by Deputy Secretary to Govt. of UP to the District Magistrate, Faizabad; 3] Office copy of the Letter No. GE no. 4671(1)/111-148/1949 dated July 20, 1949, sent by the Govt. of UP to the Commissioner, Faizabad Division, Faizabad; 4] Letter no. G.E. no.4671 (3)/111-148/1949 dated September 3, 1949 sent to the Deputy Secretary of Govt. of UP to The Commissioner, Faizabad Division, Faizabad; 5] Office Copy of Letter no. 301/C from the Deputy Commissioner Faizabad, dated December 26, 1949 to the Chief Secretary to Govt. of UP; 6] Office copy of Letter dated December 27, 1949 (in Continuation of his DO. No. 301/C dated December 26, 1949 from the Deputy Commissioner, Faizabad to the Chief Secretary of UP Govt. and 7] The Telegram/Telex message of Sri Jawahar Lal Nehru, the Prime Minister of India, to the Govt. of UP for removal of idols from Babri Mosque, received by the Govt. of UP in December 1949 or January 1950.

“The priority of these letters had to be brought to the court as some letters issued by the official government machinery were prior to the appearance of Rama’s idols inside Babri Masjid on Dec 22/23 1949 and some have been after the installation of idols surreptitiously inside Babri Masjid. We made it for sure to recount the first impression of the UP government’s official position before the court, after the Rama idols were illegally smuggled and kept inside the Babri Masjid middle dome,” said Zafaryab Jilani. It may also be mentioned that copies of these letters had also been once submitted by the Muslim side, in 1991 in context of the writ petition filed against the land acquisition initiative, by the then UP Chief Minister Kalyan Singh.

Quite interestingly, the first two letters have been also published in a book edited by a noted research-journalist AG Noorani, The Babri Masjid Question 1528-2003 (Tulika Books, 2003). “But, it is also yet to be found if the letters published in a book, and in the absence of the originals, would be considered authentic by the court. Court has the prerogative to admit the letters published in a book as authentic or it can also discard them too,” said Jilani adding that he has the first two letters in his record.

The documents, in question, have the District Magistrate’s (KKK Nair) admission that Rama’s idols were placed inside the mosque but he (DM) was not in a position to remove them forcefully and (that) it would be better if the matter (was to be) is decided by some civil court….. “We got the copy of the letter placed before the court by Deputy Commissioner, Faizabad, in pursuance to the orders passed on the application of 2002,” Jilani said.

Later, the state government filed the documents no. 3 and 4, after getting them from the office of Deputy Commissioner, Faizabad. But, the original of the same which have been summoned from the state government could not be traced. The Court, however, considered the sensitivity of the issue and observed on July 11, 2002, that the concerned documents were relevant, despite the stiff opposition put forward by the Hindu side of the case. Court also observed, in the same order, that there was no objection filed against SCWB’s application by the state government. But, later on, it was to be witnessed, a near frantic obsession, of the state government, to ascertain, from the plaintiffs (SCWB counsel) the source from where they were able to furnish the aforesaid documents. Court had rejected the plea of the state government seeking a permission to serve interrogatories to disclose their source from where they could obtain such copies of the documents concerned.
Things carried on with the ‘untraceable tag’ as the only stand from the government side. Until, finally, it was known, through, UP Chief Secretary Atul Kumar Gupta, that on July 9, 2009, a First Information Report (FIR) had been lodged by the state government at Police Station Hazratganj, Lucknow, and a Case Number 674 of 2009 under Section 409 Indian Penal Code had been registered.

It might also be mentioned that on July 7, 2009, for the first time, a compliance affidavit had been sworn-in by AK Gupta, that brought to the notice of the Court, that 23 files, pertaining to the dispute in question were missing. It had also informed that in 1992 Subhash Bhan Sadh, a Review Officer, who was looking after the matter as Officer on Special Duty (OSD) had taken the concerned files and that he was dead. Sadh had died, while on his way to Delhi to present the papers before the Liberhan Commission. He was found on the railway track at Delhi’s Tilak Bridge Station and later succumbed to his injuries.

The full bench had examined RS Srivastava, who was the District Magistrate of Faizabad in 1992, and found him to have confirmed the issuance of the documents 5 and 6. Court, however, very thoroughly, expressed its dissatisfaction about the varying stands of the state government, and had observed in its order of July 15, 2009, that various authorities and the state government had acted in a casual and negligent manner and that their attitude had lacked ‘sincerity expected of them in such a matter’. The Court, had also criticised the FIR by itself, as just an attempt on behalf of the state government to put the entire responsibility of the missing files and documents upon Sadh! Thereafter, Central Bureau of Investigation (CBI) was ordered to probe into the matter, and which, finally, had filed its report before the full bench on Feb 1, 2010.

‘The exact timing and the responsibility for the loss of these files couldn’t be established due to the non-availability of the record for the relevant period. Moreover, there is no evidence to indicate any malafide on the part of any individual/official of the state government. Hence, commission of an offence Under section 409 of IPC is not made out,’ said the CBI report. IPC 409 stands for criminal breach of trust by a public servant etc.

What would automatically serve as a surprise is that the CBI report had been consumed by almost nine full paragraphs (out of 22) with the details of Sadh’s death, which was in fact, not the line essentially directed by the Court. CBI’s forlorn interest on Sadh’s death, had however, prompted the full bench to ask what investigations were made by the CBI to conclude that his death was an accident. During the probe, an examination of 44 state officials, as seven had died in-between, who might have dealt with the ‘missing files’, was made. CBI, however, could locate only eight files, with three of them having been ‘weeded out’ while the remaining 12 have been consigned as lost! CBI could not sustain its stand to come clear on state government’s seven affidavits, all with different versions to each other, on this issue of ‘missing files’, plus, if the files were weeded out, then the obvious question which arises is to find out on whose orders they were done so. The answer is a muted silence. Plus, the all-important telegram of India’s first PM Jawaharlal Nehru to the UP government is also untraceable. Thus, if according to CBI no one is accountable, or responsible , then how come the ‘missing files’ could melt into thin air and that too with such ease? CBI, nevertheless, has found Sadh’s name to have been mentioned as an ‘official to whom the file was last marked’. Hence, Sadh is, therefore, the wholesome responsible.

So, who was Subhash Bhan Sadh? His case is perhaps intriguing to the hilt. He was made OSD on Dec 11, 1992 and was assigned to do pairvi on behalf of UP government before the Liberhan Commission. On April 29, 2000, he left for Delhi to appear before the Commission. He was found critically wounded lying on the railway track at Tilak Bridge Railway Station on May 1, 2000 and died the next day.

Delving on the same issue, the CBI report said that KB Agarwal, the Special Secretary to UP government in 2000, had intimated that Sadh was carrying photocopies of files with reference to the hearing in Liberhan Commission and that Commission had not requisitioned any important file. Agarwal had further mentioned that as per records of home department there was no direction for him to carry any file, in original, to Delhi. This he had written on July 6, 2000. Therefore, there was only the possibility of his carrying photocopies of the related documents, if any,’ confers the CBI report.

Late Sadh’s father Bir Bhan Sadh suspected a foul play in his son’s death and had filed a Criminal Writ Petition No. 513 of 2000 in the Delhi High Court. An inquiry was entrusted to Anti-Robbery Cell of Crime Branch of Delhi Police and which had found that no foul play was suspected. Moreover, Subhash’s own son Harish along with other relatives, who were present by his death bed, also denied any recovery of any file from his personal possession. But, CBI found it convenient to rescue Sadh too. ‘There is nothing on record to attribute missing of these 23 files to the death of SB Sadh,’ says its report.

As expected, the rap was to come. ‘Neither we are pleased with the conduct of the state government nor of the CBI,’ observed the full bench on Feb 19, 2010. In its telling order the Court observed that CBI has given no explanation as to why it did not examine KB Agarwal, as no report regarding the loss of any original file was made by him after the death of Sadh. ‘Hence, it is quite clear that no file was missing till then. The files were removed thereafter and blame was shifted to Sadh who had already died. Neither the State Government nor the CBI has examined this aspect. This is not negligence but something more and something deliberate,’ said the order on Feb 19 - leaving a big question: Is CBI working all unilaterally, and if not, then under whose directives?

The whole saga, as a matter of fact, has tarnished CBI’s image to no ends. The pioneering investigating agency, perhaps, never in the history of independent India, drew such a flak from judiciary. The Court found itself ‘extremely disappointed by its (CBI) lacklustre performance.’ It castigated CBI in no unequivocal terms. ‘From the status report submitted by CBI it appears that they were waiting for some officer to come and take responsibility upon himself otherwise they will submit a report closing the matter as if there is nothing wrong and that has been done so’. “We are thoroughly unsatisfied with the manner in which CBI has dealt with this matter and have reason to infer that either the slackness or reluctance on the part of CBI is deliberate on their own or on account of some otherwise influence on the part of the controlling government,” said the trio at the full bench. It further stated, “We are at pains to express our anguish and deprecate the way and the manner in which CBI has behaved in this matter. It may be under the influence of some other higher authority. “ Judiciary frankly had been made to toil. So for all and sundry this issue is now an open and a shut case as there can be anyone’s guess that CBI is controlled by the Central government! Hence, therefore, the order, though most obvious in its terms and facts, has found no takers. No heads are likely to roll anyway. But, judiciary as a vestige of law of the land has come out in flying colours. It cannot suspend an erring official and so what if governments have their own set priorities. And, mind you, no one cares for the public money spent on such probes

This article appeared in The Milli Gazette print issue of 16-31 August 2010 on page no. 8

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