A Delhi High Court justice Friday recused himself from hearing an appeal of Congress leader Jagdish Tytler gainst the trial court order of reopening a case against him related to the 1984 anti-Sikh riots.
The matter was listed for hearing in the court of Justice Kailash Gambhir Friday. Justice Gambhir recused himself from hearing the case, but offered no reasons for doing so.
The case will now come up for hearing before another judge July 3.
On April 10, the trial court ordered the case be reopened against Tytler and also set aside the Central Bureau of Investigation's (CBI) closure report, which gave the Delhi Congress leader a clean chit on the grounds that there was "no evidence" against him.
Tytler, filing an appeal in the court, said: "The trial court order is contrary to the Criminal Procedure Code. The method and mode of investigation by a probe agency is the absolute prerogative of the agency. It is not for the court to direct the agency about which witness should be examined by it."
Seeking that the trial court order be quashed in the 29-year-old case, the plea said: "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."
The trial court's order of May 10 came on a plea filed by a riot victim, who sought further probe into the killing of three people near Gurdwara Pul Bangash in old Delhi.
Tytler is accused of instigating a mob that led to the murder of three men who had taken shelter at the gurdwara Nov 1, 1984.
The mob attack was part of violence against Sikhs after the assassination of then prime minister Indira Gandhi Oct 31 that year.
The trial court had also directed the CBI to examine witnesses and people who claimed to have information about the riots.
The court, setting aside the magisterial court order that accepted the CBI's closure report, had said: "The order of the trial court accepting the closure report is set aside. The CBI is directed to conduct further investigation in the light of aforesaid facts and to record the statements of witnesses, who, it had come to know during the investigation itself, are claiming/shown/named to be witnesses of the incident."
The CBI had an "obligation" to record the statement of three US-based men, whose names were taken by a witness, the court observed in its order, saying the men were present at the spot at the time.
Opposing the victim's plea, the probe agency had sought the dismissal of the plea, saying it had established that Tytler was not present at Gurudwara Pul Bangash on Nov 1, 1984, during the riots.
However, senior advocate H.S. Phoolka, appearing for petitioner Lakhwinder Kaur, had said that there was material which the CBI had ignored.
Three men - Badal Singh, Thakur Singh and Gurcharan Singh - were killed near Gurudwara Pul Bangash, allegedly on Tytler's instigation.
Tytler's role in the killing of three men was re-investigated by the CBI after a court in December 2007 refused to accept the closure report.
The CBI claimed that Tytler was at Teen Murti House, the residence of the late prime minister Jawaharlal Nehru, where Indira Gandhi's body was kept, at the time of the Pul Bangash incident.
It added that the agency had already re-investigated the case on the order of a trial court, but there was insufficient evidence against Tytler.
Tytler was given a clean chit by the CBI April 2, 2009.
