Indrani chose at that moment to wave a folded chit from the accused enclosure.
It distracted Bharti, who looked at her sharply for a split second before turning back to Pasbola.
The chit was collected from Indrani and her lawyer Gunjan Mangla slipped it to Pasbola.
He looked at it, quietly laughed in disbelief and continued with his cross examination.
Vaihayasi Pande Daniel reports from the Sheena Bora murder trial.
Illustration: Dominic Xavier/Rediff.com
It is not often, probably, that senior criminal lawyers Sudeep Ratnamberdutt Pasbola and Shrikant Shivade have cross-examined the same witness on the same day in a Mumbai court.
Tuesday, July 3, was the first time it happened in the Sheena Bora murder trial, which has been unfolding at CBI Special Courtroom 51, Mumbai city civil and sessions court, Kala Ghoda, south Mumbai, since February 2017.
Their styles do not have much in common. The contrast is intriguing.
Pasbola, who is currently one of the busiest lawyers in Mumbai, with always an enormous roster of clients -- that have over the years included gangster Abu Salem, Malegaon blast 2008 accused Major Ramesh Upadhyay, Congress President Rahul Gandhi, Kamala Mills owners Ravi Bhandari and Ramesh Govani, gangster Arun Gawli, Kannada actor Maria Susairaj, as well as scores of those accused of terrorism, some of them with meagre means -- has a steady, nip-at-the-ankles approach that can bring a witness to his knees.
It is a more earthy style. There's noise. Bluster. Drama. He would be right at home in the hurly burly of World Cup 2018. That doesn't mean it lacks tactics or calculation. And Pasbola has dogged persistence.
Shivade, who represents only a few, high-profile, clients at a time, like former Tehelka editor Tarun Tejpal, Malegaon blast accused Lieutenant Colonel Shrikant Prasad Purohit, actor Salman Khan, diamond merchant Bharat Shah, actor Saif Ali Khan, former police chief R D Tyagi, belongs in a chess match or at least in a TED talk on playing chess.
His is a delicate, cerebral, method. It is strategy, strategy, strategy. And finesse.
At times it wanders into too intellectual a realm -- even if high octane -- leaving everyone in a courtroom scratching their heads, wondering what the game plan is.
And he has dogged persistence too, sometimes exceeding Pasbola's brand, in perhaps a more subtle, sophisticated way.
Pasbola seems not that courteous with his witnesses, often roaring out a question in frustration. Shivade displays exaggerated politeness. But Pasbola is finally more polite. He doesn't have Shivade's distinct air of superiority.
Pasbola often addresses a witness as 'Madam' or 'brother' in Hindi or Marathi, and tags on a prefix or suffix of respect like 'ji' or 'Mr'.
Shivade does not have that habit. He mostly won't preface his questions to a witness with any form of address.
If he has to, he calls them by their last name, sans title.
Watching both these powerful lawyers in action, back-to-back, on one day is like attending a legal Olympics.
The Olympians were well matched on Tuesday. Their opponent was Mumbai's joint commissioner of police, law and order, Deven Bharti, no less.
The polished, mannerly, Indian Police Service officer looked less comfortable in the witness box on Tuesday than he did on Monday.
As he was peppered with questions, he adjusted his position from time to time, resting one shoe forward between the wooden slats of the witness box, flexed his fingers together, scratched his head or ear awkwardly.
Like on Monday, Bharti, whose Twitter feed testifies he loves country music and Bob Dylan, was in uniform.
His hat, with its monogrammed IPS logo, rested on the wooden stool behind him. He had a silver ring on the smallest finger of his right hand and a black wrist watch.
The hearing began a full hour before time. Pasbola, Indrani Mukerjea's lawyer was able to wind up his Mumbai high court matter early and Shivade, Peter Mukerjea's counsel, evidently reorganised his schedule to be at CBI Special Judge Jayendra Chandrasen Jagdale's courtroom before the earlier scheduled 4 pm time.
Both CBI Special Prosecutors Bharat Badami and Kavita Patil were absent.
An equally tough participant in the Tuesday proceedings was the relentless, ceaseless 214 mm of Mumbai monsoon rain, that had deluged the city, snarled the traffic, shut down rail lines and crumbled a bridge on an arterial road in Andheri, towards the north west.
It entered the courtroom too, altering dynamics. The hearing had to end at 4 pm, so the court staff, who had somehow all made it to work, even though they owned no boats, Tuesday morning, in spite of the miserable weather, return home safely, in case the torrential rain got even worse.
That put pressure on Pasbola and Shivade to roll their cross-examinations along at top speed.
Pasbola, who seemed in top form on Tuesday, although he did no bellowing, and had Shivade at his elbow, whispering suggestions or support, began by understanding the dynamics at the Mumbai crime branch -- how Bharti and Senior Inspector and witness number 5 Nitin Alaknure first got to know each other, Bharti's connection with then commissioner of police Rakesh Maria (a potential future witness) and what was the X Project that Alaknure had referred to in his statement to the court last week.
The enigmatically named X Project, which is under the supervision of the Mumbai deputy commissioner of police, crime, is a technical cell, run by a team of specially-appointed police inspectors, sub-inspectors and constables, that assists with the logistics of finding the location of a cell phone and analysing call data records, Bharti confirmed.
Bharti's two statements to the CBI in 2015 and his testimony in court on Monday were short. They consisted of just a few sentences each.
There were certain pertinent -- if minor -- differences between the account this senior police officer gave the CBI in October 2015, November 2015 and to the court Monday, three years later in 2018.
Pasbola zeroed in on these inconsistencies and perplexities with his usual gusto, systematically conducting a post mortem, putting Bharti perhaps in a bit of a spot, as he tenaciously probed how they had come about.
Pasbola: "Mr Bharti, in April 2012 Peter Mukerjea and Indrani Mukerjea (who together once ran a media company, INX India Ltd) approached you for the location of a relative. Did you recount that fact when you gave your statement to the CBI?"
Bharti: "Yes."
Pasbola: "Did you state before (CBI Investigating Officer) Mr (Kaushal Kishore) Singh the date, April 2012."
Bharti: "I must have."
Pasbola: "Did you not note down the number and name of the said relative whose location was required by the Mukerjeas?"
Bharti: "I do not recollect if I did."
Pasbola: "Did you disclose the fact that the mobile location of the relative had been found to the CBI?"
Bharti: "No."
Pasbola: "Did you disclose the fact in Para 4 to the CBI?"
Bharti: "No."
Pasbola: "Mr Bharti, did Indrani Mukerjea and Peter Mukerjea call on your mobile phone to enquire about that mobile's CDRs?"
Bharti: "I do not recollect."
Pasbola: "How long was the call?"
Bharti: "I do not recollect."
Pasbola: "This call which came was preceded by a call from a journalist Ganesh Thakur of Star TV?"
Bharti: "I don't recollect. Maybe or maybe not."
Pasbola: "This Ganesh Thakur was known to you?"
Bharti: "Yeah. He is a journalist."
Pasbola: "Did Mr and Mrs Mukerjea contact you through this journalist?"
Bharti: "I do not recollect."
Pasbola: "Did you state to Mr Singh that Mr Peter Mukerjea and Mrs Indrani Mukerjea contacted you through Mr Ganesh Thakur?"
Bharti: "I stated probably."
Pasbola: "No, no, there is no probably."
Bharti: "Perhaps. Probably."
Pasbola: "Was it a brief call?"
Bharti: "I cannot recollect."
Pasbola: "You would also not remember from which number the call had come?"
Bharti: "No."
Pasbola: "Do you recollect the name of the service provider forwarded to you?"
Bharti: "No."
Delving into the nature of Bharti's supervisory role at the Khar police station's 2015 investigation into Sheena Bora's alleged murder, Pasbola asked Bharti if he had worked directly with just Alaknure or with all the officers of that police station, which is located in north west Mumbai.
Through a series of questions it emerged that Alaknure had been the liaison man between Bharti and the Khar police station, even as Bharti constantly kept Maria in the loop.
Though Pasbola's questions were straightforward, relevant, he kept an incessant staccato stream of queries going, that succeeded in very mildly unnerving Bharti, if not noticeably so.
Bharti has a Bihari equanimity about him that does not seem rumple or crack easily.
He looked Pasbola squarely in the face as he answered each question in a level voice, often flatly, without apology, declaring a fact had slipped his mind or that he had forgotten.
It was evident that Bharti had not been on witnesses stands often -- or ever.
The advocate narrowly quizzed Bharti about the relationship he had, or did not have, with the Mukerjeas.
He ascertained too how the Mukerjeas had approached him in 2012 when they needed his help to track down the mobile location of their 'relative'.
Bharti said it had been by phone and not a personal meeting.
When the Mukerjeas got back to Bharti about having found their relative that they were tracing, it had been on the phone too it was established.
Pasbola: "When did you get to know Peter Mukerjea and Indrani Mukerjea?"
Bharti: "I do not recollect."
Pasbola: "Did you develop a friendship with them?"
Bharti, with a grimace, shaking his head: "No."
Pasbola: "Mr Bharti, is it correct that between April 6 and July 17, 2012 numerous calls were exchanged with 9820535090?"
Bharti: "I do not recollect."
"Pasbola: "Your number in 2012 was 98-------- (Bharti's number)?"
Bharti: "Yes."
Indrani -- who was wearing a red sleeveless kurta, a beige chunni and a beige salwar, red bindi, heavy kohl in her eyes, looking youthful -- chose at that moment to wave a folded chit, in her hand, from the rear accused enclosure.
It distracted Bharti, who looked at her sharply for a split second before turning back to Pasbola.
The chit was collected from Indrani and her lawyer Gunjan Mangla slipped it to Pasbola.
He looked at it, quietly laughed in disbelief and continued with his cross examination.
Indrani didn't have too many high-wattage smiles to give from the back of the room on Tuesday.
She looked serious and sombre. Her eyes were large in her face. Peter and she very carefully observed the proceedings.
Pasbola to Bharti: "Mr Bharti do you know if that number was Indrani Mukerjea's?"
Bharti: "I do not recollect."
Pasbola: "Why was this number in constant touch with (your) number?"
Bharti: "I cannot recollect. But if it was during that period it might be for finding the location of that mobile."
Pasbola asked if he had at any time been called to the CBI's Delhi office. Bharti said he had been told that if he happened to be in Delhi on work he should visit the CBI office there because they had some enquiries.
This sudden question did not perturb Bharti. He tackled it smoothly.
Pasbola: "Were you told by Mr (Kaushal Kishore) Singh or Mr (Surinder Singh) Gurm?"
Bharti: "Either by Gurm or Singh."
He looked behind, pointing at Singh, who was wearing a cream shirt with a geometric pattern on it and dark slacks, sitting in his customary spot behind the witness box, quietly, mostly wordlessly contemplating the proceedings with his usual alertness, his hooded eyes always surveying the room.
Bharti stated further, on Pasbola's querying, that he made one solitary visit to the Delhi CBI office where he met a CBI officer of "SP rank" who wanted to know if the CDRs (call data records) of the phone number the Mukerjeas gave him in 2012 had been extracted and Bharti did not believe their department in Mumbai had done so.
It was inching past 3.30 pm and Shivade needed time for his cross examination before the court shut down in deference to the rain.
Pasbola closed his 'cross' with the accusation to Bharti, delivered in a mild voice, "Mr Bharti, my case to you is that Indrani Mukerjea never contacted you to find the location of a relative along with Peter Mukerjea."
Bharti denied it.
Shivade began by announcing that the lawyers for Accused No 2, Sanjeev Khanna, businessman and Indrani's former husband, would not be examining Bharti.
He started up his cross examination of Bharti with questions about the relationship between Bharti and Maria.
Shivade always begins very low key, in a soft voice, asking questions as if he and the witness are in a drawing room pleasantly and amicably having tea together. He gradually builds up tempo and sometimes a sheathed, hidden kind of lethalness.
Bharti said Maria and he once worked in the same building, had offices on the same floor and would meet up several times a day.
Shivade, speaking in chaste Marathi, asked in great length about the protocol in place at the X Project and how the police and nodal officers of cell phone providers were required to interact.
Bharti replied too in Marathi, which though fluent is not perfect; more a working grasp of the language. He stumbled over some answers trying to find the appropriate Marathi words and sometimes broke into English. But Shivade stuck to Marathi.
Shivade: "In normal course the (cell phone) service providers do not give information (to the X Project) unless and until a written request is made?"
Bharti disagreed, shaking his head, and said that was not true.
Shivade, who always stands at an angle to the little lawyers' table, facing sideways instead of front, his elbow resting on the table, looked suitably startled: "Do you mean to say service providers give information without written requests?"
Bharti: "Not always. They give it to the (cell phone company's) nodal officer appointed."
Shivade: "Who was the nodal officer (then) and what was his rank?"
Bharti: " do not recollect. To any officer."
Shivade: "Do nodal officers keep a record of such requests?"
Bharti: "Yes."
Shivade primly, in schoolteacher mode: "Have you read the Telegraph Act (the Indian Telegraph Act 1885) and rules?"
Bharti: "Yes. But I cannot state the provisions."
Shivade checked if to discover the coordinates of a cell phone what was needed apart from the number.
Bharti said only a number and that the number was indeed noted down in a register by the nodal officer.
Shivade: "Does the nodal officer of the service provider check if the request was official or unofficial?"
Bharti said he did not know.
Shivade: "Service providers are supposed to supply information only when there is an official request from the nodal officer?"
It was more a statement/comment than a question. But Bharti replied: "Correct."
Bharti attempted to add further information to that answer, but Shivade abruptly cut him short peremptorily ordering the joint commissioner to "limit" his answer to what he was asking.
Judge Jagdale instantly intervened, and with a polite smile and told Shivade off: "He has every right to volunteer further information."
Shivade, smartly changing tactics said he was only watching the clock because they needed to finish by 4 pm and something to the effect that he was making sure the cross examination stuck to the topic at hand to save time.
Bharti explained, in not so many words, that though technically a written request was required an oral request could get the job done.
Shivade, disapprovingly, expressing more mock horror: "Under which law or rule are oral request made for requesting a mobile's location?"
One of Bharti's junior officers, standing outside the court, waiting for him, followed the proceedings from the doorway. His face was a study of surprise and annoyance at the questions Shivade was putting to his boss.
Bharti replied coolly that he did not know, not seemingly stressed by Shivade's line of questioning.
It would appear that it is hard to unruffle an experienced professional who knows his job.
Shivade was warming up to take Bharti on further on this theme, when the judge intervened and shut down the lawyer's line of questioning. He was dismissive as he said "The witness is not supposed to know this Act!"
Someone from the prosecution later muttered that indeed police officers are "advised" to read and follow many of these rules, codes of conduct and manuals, but they are not "mandatory" and Shivade had a fondness for using the rule books as sticking points in a cross examination.
The advocate instead explored why Bharti had not mentioned in his first statement to the CBI that when he met Alaknure in 2015 he had remarked to the police inspector that the number he had asked to be traced on the Mukerjeas' request was related to the Sheena Bora murder case.
Shivade: "You did not remember this important fact when you gave your CBI statement?"
Bharti, shrugged unconcerned, offering simply: "It was not in my memory." He added in English, "I must have missed it out."
Shivade wondered when it wandered back into Bharti's memory. Perhaps in time for Bharti's second statement to the CBI.
Bharti said it had not. And that "the important fact" surfaced in his memory at later date.
The advocate asked if he kept a record of the number the Mukerjeas has asked him to trace. Or if Alaknure had. And if he was able to remember the number he was asked to track three years later in 2015.
Bharti replied in the negative to all three queries.
Shivade ploughed on. He wanted to know if the last location of a mobile could be tracked even if a phone was switched off.
Bharti confirmed it could be.
The judge smiled to himself, as Shivade continued.
It was beyond four. A member of the prosecution team quietly signalled to a court clerk to remind the judge of the time.
But Judge Jagdale was watching the clock too. He cracked a joke: "One of advocate Shivade's brothers (or relative) must be in the police because he does not seem to want to lose the company of this police officer!"
Shivade laughed. The nervous tension in the room broke. Till then a kind of hostility had been hanging in the air of the courtroom.
At the end of his cross examination of Bharti, Shivade zoomed in on another difference between Bharti's statement to the CBI and in court on Monday.
He hammered away at that point, attempting to build its significance: "Was it an important fact that Peter Mukerjea and Indrani Mukerjea informed you that the whereabouts of their relatives had been discovered and asked you to not proceed any further?"
Bharti: "Yes."
Shivade: "Did you remember this fact before the CBI?"
Bharti: "No."
Shivade, concluding: "Peter Mukerjea never did approach you with a request to find the tower location of a relative."
Bharti declared Shivade's statement to be false.
With that Deven Bharti's notable turn as PW6 in the witness stand in the Sheena Bora murder trial came to an end.
After slipping on his cap and saluting Judge Jagdale, he left the room.
Outside he and K K Singh spoke for a few minutes and then Bharti, trailed by five police officers and men, one in plain clothes with a walkie-talkie, headed for the stairs, swiftly descending down to the courtyard.
They crossed over to the older building of the court towards perhaps Bharti's vehicle, which probably was parked near the heavily-secured main gate, through which only VIP cars and prison buses are allowed access.
- MUST READ: The Sheena Bora Murder Trial
