Kodnani was named as a key accused in the case when the Supreme Court appointed SIT had taken over the probe in the riot cases in Gujarat. According to SIT, on 28th Feb, 2002, a day after the torching of the Sabarmati Express at Godhra, when a crowd had gathered to enforce a bandh called by the Vishwa Hindu Parishad (VHP), Kodnani along with Jaideep Patel, the Gujarat secretary general for the VHP, had given hate speeches with the intention to incite the mob. There were 11 witnesses to the incident. At the trial, the Special Court observed that the magnitude of the violence was largely attributable to Kodnani. Convicting her with imprisonment for 28 years, the Court noted that she had played a key role in instigating the mobs assembled for the purpose of the bandh. She was held liable for abetting the commission of offences by the co-conspirators and for abetting formation of unlawful assembly to execute the conspiracy. After being convicted by the Special Court in 2012, she was amongst the 32 convicts to appeal to the Gujarat High Court. Her appeal had witnessed almost six recusals. In 2014, the Gujarat High Court granted her bail on the ground of ailment and her sentence was suspended. Later in 2018, observing that the inconsistencies in the statements of the 11 witnesses failed to conclusively establish her guilt, the High Court

acquittedKodnani. The Court also made a note of the fact that her name came to be associated with the riots only after SIT came into the picture. While acquitting Kodnani, the High Court held –

“Dr. Mayaben Surendrabhai Kodnani, originally accused No.37 in Sessions Case No.243 of 2009, is hereby set aside and the appellant is acquitted of the offences with which she was charged by giving her the benefit of doubt.”

Hinting at the political optics of the SIT not challenging the High Court order, Mr. Sibal remarked – “It shows!”

The Senior Advocate was arguing the petition of Zakia Jafri, widow of Congress leader Ehsan Jafri who was killed in the Gulberg Society massacre during the 2002 riots. She has approached the Supreme Court challenging the clean chit given by the SIT to the then Gujarat Chief Minister Narendra Modi and other high functionaries of the state in the larger conspiracy behind the riots.

‘VHP persons appointed as Public Prosecutors; Didn’t oppose bail to accused’

At the Zakira Jafri hearing Mr. Sibal also pointed out that around the time of the riots of 2002, the VHP affiliated advocates were appointed as Public Prosecutors. He read out the the SIT report dated 17.05.2010 noted that:

“It appears that the political affiliation of the advocates did weigh with the government for the appointment of public prosecutors.”

Mr. Sibal indicated that these appointments ultimately facilitated the members of VHP and other affiliated parties to get bail, since the PPs deliberately did not oppose bail applications. Though observations were made by SIT in its report, no investigation ensued the appointments of the Public Prosecutors, in connection with the riot cases.

“First you have VHP people calling for riots, and then you appoint VHP people as prosecutors…55 people were released on bail when Dilip Trivedi was appointed as Special Public Prosecutor. Kindly note this. Should this matter be not investigated? Why did you not oppose? Did VHP or any accused get in touch with you?These are the questions which SIT should have asked”, Sibal argued.

He contended that the SIT left “deliberate loopholes” in the investigation and there were no sincere attempts to nab the culprits.

Sibal argued that the SIT did not arrest any accused persons, record their statements, seize their phones, or conducted spot visits. He highlighted that the SIT ignored the tapes of the sting operation done by Tehalka magazine, in which many persons had given open statements about their participation in the violence and accumulation of weapons and bombs.

Sibal highlighted that the SIT discarded the testimony of the then Gujarat ADGP RB Sreekumar IPS on the ground that he was making the statement due to a denial of promotion.

“His(Sreekumar) testimony was corroborated by other officers and hence it could not have been rejected..”, Sibal said.

Sibal also submitted that there were factors pointing out to complicity of the police and the administration which were ignored by the SIT.

“Curfew was declared immediately in Godhra..but in Ahmedabad, curfew was not declared until 12. And thousands of people had gathered by 7 morning. They were swayam sevaks. Who gave them the messages? Any police officer would have immediately declared a curfew so that violence could be avoided”, he said. The state intelligence reports regarding communal tension were ignored.

Sibal also read out portions from the transcripts of Tehalka report to contend that they showed the conspiracy by members of Bajrang Dal, VHP and Sangh Parivar to stockpile weapons, to make diesel and pipe bombs and to import ammunitions from other states prior to February 27, 2002. He argued that the that tapes suggested conspiracy to smuggle dynamite bombs to Ahmedabad from quarry operated by a VHP worker. These aspects not investigated by the SIT, Sibal added.