On Wednesday, while making his submissions in the Zakia Jafri’s appeal, Senior Advocate Kapil Sibal contended that the Special Investigation Team had not conducted any form of investigation in the matter.

A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar heard submissions in the plea challenging the SIT report giving clean chit to the erstwhile Gujarat Chief Minister, Narendra Modi and other high functionaries in the Gujarat riots of 2002. During the course of 3 days, Mr. Sibal took the bench through the documents to demonstrate the failure of the SIT in investigating the matter. Mr. Sibal submitted that SIT showed absolutely no commitment to the investigation process.

While Zakia Jafri is the first petitioner before the Supreme Court, social activist Teesta Setalvad is the second petitioner.

Contextualising Article 21

In his efforts to exhibit that the process of investigation was a farce, at the outset, Mr. Sibal contextualises Article 21 of the Constitution in the present case. Article 21 permits deprivation of life liberty only by the means of a procedure established by law. In the current context Cr.P.C. being the procedure established by law, Mr. Sibal referring to certain provisions submitted – ‘The umbilical cord that connects it with A21 is pure unbiased investigation‘. Justice subsumes the articles of the Part III of the Constitution and if the investigating machinery i.e. State fails to carry out proper investigation then it would be in derogation of Part III.

Etymology of the word ‘investigation’

In his submissions Mr. Sibal goes into the root of the word ‘investigation’ to show how the investigation carried out by SIT was a farce. He stated-

“Actually there is a Latin word called vestigare – the meaning of which is track; trace. From that came the word investigare; investigat which means traced out and it became investigate in the 16th century. So, what it means is trace out;track…It is to trace out the truthfulness of the sentence; to find out the footprint of that statement. That is at the heart of the investigation. If you accept a potential accused statement then it amounts to no investigation. Then the Special Investigating Team in ‘SIT’ – It is sitting, It is not an investigation. The whole purpose of investigation is a systematic fact finding and reporting process. So the footprint of the truthfulness of the statement has to be looked at. This is the conceptual background that has to be kept in mind for any investigation…In fact the most important part of investigation is the purity of the process.”

 

Tracing the source of the appointment of SIT, he submitted –

“Why was this SIT set up – because NHRC moved the Supreme Court and said that the local police are not investigating the matter properly. That’s why all the nine matters were given to SIT. That is why no FIR was filed before local police. The moment an FIR is filed it would have been investigated by the local police. In my case, Milords, no FIR. Otherwise local police would have investigated. CIB gives regular RC no and lodge separate FIR. SIT cannot do that. That is why probably the FIR was not asked to be lodged.”

Pre-identification by Mobs

Reading from to Vol. 5 of the Protest petition, Mr. Sibal continued –

“Muslim residential colonies, shops and establishment were identified beforehand and these records were available with marauding mobs”

In this context recalling from his personal experience, he shared –

“I remember in 1984 where I was living in Maharani Bagh there were two houses of friends of ours, Sikh gentlemen and the mob came, they pre identified those houses and they only went to those houses. Luckily we saved one of them.”

PC Pandey, Commissioner Ahmedabad not investigated

Refuting the statement of Mr. PC Pandey, Commissioner Ahmedabad, Mr. Sibal submitted –

“He says the funeral processions were peaceful in Ahmedabad. Messages of 28.02.2002 show there was nothing peaceful about the processions. And the man says everything was peaceful and believed, that is the beauty of it. This analysis should have been done by SIT. And when we point this out in the Protest Petition, they do nothing. There must be a reason why he wants to maintain that it was peaceful. Why did he make that statement?”

Reading out instances which depicted that the the situation was infact quite grave, including the fact that bandobast was also sought for Gujarat HC judges, Mr. Sibal added –

“The violence started on 27th itself. Because on 27th morning the train reached there and the national tragedy took place. So nobody had to wait till the next day to declare curfew.”

To show how the SIT investigation had failed, Mr. Sibal referred to SIT’s finding in this regard –

“That no violence, no arson. The whole SIT was rendering conclusions contrary to facts. In fact such SITs should be investigated.”

Mr. Sibal pointed out the fact that though PC Pandey had initially not produced the documents and only disclosed them after the Supreme Court’s interference, SIT did not investigate PC Pandey questioning him about concealment of documents. He further submitted –

“All these people who ‘were collaborating’ were then rehabilitated and Raghavan(SIT head) was made ambassador to Cyprus.

Negligence of Fire Brigade not investigated

Mr. Sibal apprised the Bench that the Criminal negligence of Ahmedabad fire brigade under PC Pandey, which was elaborately dealt with in the Protest Petition was also not investigated by SIT.

“SIT does not investigate why the fire bridge at Ahmedabad between 9 and 10 PM on 28.02.2002 were simply not responding to the call…SIT had ignored all of this, Magistrate has ignored all of this, HC has ignored all of this.”

Inadequate police bandobast not investigated

Elucidating from the protest petition how the inadequate police bandobast was not looked into by the SIT he submitted –

“Failure to provide adequate bandobast after the massacre. Violence continues even after 28.02. I am not concerned with individuals, I am concerned with the process, I am only saying that the SIT did not do its job…This is an act of protection not a commitment to investigation.”

Delinquency of Public Servant not investigated

Reading from the protest petition Mr. Sibal informed the Bench that senior officers were not present at the place of major incidents and when they were sent messages to reach troubled spots they chose to be somewhere else. He also dealt with other instances of delinquency. He submitted –

“SIT proposed departmental action against MK Tandon and Gondia. But, we don’t know what happened, Milords.”

Mr. Sibal pointed out how SIT had given clean chit to PC Pandey. He stated –

“He was in office throughout, didn’t go out and had 3 conversations with the accused. This is scandalous. SIT has not investigated any of this…What was the Commissioner of police doing and why was he doing it? We know what but we don’t know why. That had to be investigated…See what he (Pandey) had said (in a prominent television channel) ‘During the riot when the whole society had opted for a colour in a particular issue it is very difficult to expect policemen to be totally isolated and unaffected’…The SIT had concluded that Pandey was busy handling the dead bodies of victims as Godhra. See what SIT says. Cell phone records show that he was sitting in his office all day long, he was not handling anything.”

He added –

“PC Pandey has been one of the most crucial collaborators, who has post facto benefited… As an accused he became DGP Gujarat. The journey from accused to DGP is somewhat disconcerting. He said he didn’t know anything about Naroda. Tandon was at the spot and he had talked to him 6 times and he says he didn’t know anything. What we have done is what the SIT should have done. SIT should have investigated all of this.”

Referring to the phone calls of the public servants that were analysed and extensively dealt with in the Protest petition, Mr. Sibal stated.

“Each of these persons’ call data was analysed. We found this out from the call data record and all this ought to have been looked at and investigated .”

Thereafter, Mr. Sibal took the Court through some portions of the statement of Ashish Khetan, the Tehelka journalist, who had conducted the sting operation. While reading out from the Protest petition, Mr. Sibal observed that-

“The landline phone calls of Ehsaan Jafri were destroyed. Landline phone calls were destroyed. Under whose instructions Jafri’s phone calls were destroyed. Who is involved, in what manner that’s never been looked at. We gave all the phone call records…We have said crucial meeting to be looked at, record of police exchanges and hotline to be looked at, detailed analysis of mobile phone records of crucial persons, directories of mobile phone companies. Log books, case diary maintained by police, case diaries of beat constables..govt files relating to appointments of PPs, IB inputs, SIB messages, – none of this looked at, record of army, their permissions, Mr. Zammerunddin Shah was not interrogated. KPS Gill’s statement not recorded. In a tragedy of this manner, police logs were destroyed, wireless destroyed. Why destroyed, who gave orders. Why was the Magistrate mute on these issues?

Mr. Sibal read from a previously cited judgement that chargesheet are not to be blindly followed, application of mind is crucial – to demonstrate the duty of the Magistrate and the High Court.

Discussing the role of the prosecution, Mr Sibal stated:

“Why did the protest petition come about? Under law only the state can prosecute. If the state does not prosecute…Ultimately it is standing for the victims, to do justice for the victim. The investigating agency is duty bound to see the victim has the satisfaction, that the rule of law is honoured. (Otherwise) the victim is doubly targeted. The investigative agency to see the collection of evidence is pure. Otherwise there is no need for an investigating agency.”

Control Room Records destroyed, not investigated

Contending that the destruction of the control room records were not routine as claimed by the officials, Mr. Sibal submitted –

“If this destruction was routine, why was a batch destroyed on 31.03.2008 just 5 days after the appointment was the SIT.”

He pointed out that there were discrepancies in official documents regarding the date of destruction and also the fact that much later the records were produced by PC Pandey when the Supreme Court got involved show that the destruction was indeed not routine. But SIT did not investigate the same.

On the issue of failure of Gujarat Govt. to act against the print media making communally inciting reports, Mr Sibal stated –

“In fact, in matters relating to riot you actually should look at news articles they give contemporaneous evidence, not evidence, it’s information you should act on that information, journalist statement to be recorded. But none of that was done.”

Mr. Sibal made submissions regarding police inaction and how SIT did not investigate the same. He, inter alia, submitted – “Instruction to control riot was there, they were also not followed.”

He further submitted that the discrepancies in statement of SIT has been rebutted in the protest petition.

Messaged related to funeral procession deliberately ignored by SIT

Citing from the protest petition, Mr. Sibal submitted that prior warning of communal violence was available but they were ignored. He added –

“How did they (swayam sevaks) come there (hospital). Not the family members, but the RSS people. Obviously, Jaideep Patel informed them to go there.”

Messages related to mass mobilisation and hate speech uninvestigated

Mr. Sibal submitted that they had provided detailed documents regarding the hate speeches in the protest petition which remained ignored. He stated,

“We have given name, time and place and messages...See, criminal mobilization of VHP. Your Lordship can look at the slogans that were all building up to the riots that were going to take place. This was on 27.02 itself...This material was all with SIT but was willfully ignored.

State support to bandh not looked into

It was further submitted that the SIT was ambivalent about the state support to the bandh called by VHP on 28.02.

The Bench enquired – “How is this relevant for larger conspiracy? For this inaction SIT came in. There is distinction in inaction during crime and inaction in investigation. We are just indicating to you.”

Mr. Sibal responded that – “There is a manual. The officers were not following the manual. The question is why did that happen and why did SIT not investigate that.”

The Bench indicated that – “We thought we were focusing on the larger conspiracy argument of yours.”

“There is one other thing that occurred to me. Suppose I make allegations of a larger conspiracy. During investigation it is found out serious offences were committed, the Investigating Agency is to prosecute. To take note of every cognisable offence even though you don’t reach a conclusion that there was conspiracy. The law is clear. If a complaint is of larger conspiracy, during the course of investigation they discover what? Serious offences were committed, SIT should have taken action and magistrate should have taken action. You should not limit yourself to conspiracy.” – Mr. Sabil submitted.

The Bench reiterated – “We were thinking that we were focusing on that first? Our comment is limited. We thought you were addressing us on that.”

Partisan role of Public Prosecutors, not investigated

Pointing out that the appointments of the PPs were tainted and needed investigation, Mr. Sibal –

“I have shown statements that PPs were acting at our instructions.”

Dilip Trivedi’s role in Mehsana was also not investigated even when he proudly made statements like out of 78 riot cases only 2 resulted in conviction.

Failure to heed reports of IB, not investigated

Mr. Sibal informed the court that Protest Petition elaborately deals with the failure to heed reports of IB ‘both on 27.02, prior to 27.02 after 27.02‘.

He said, the Protest Petition also set out the provisions to be invoked against the accused.

The Bench asked – “All 120B? Essentially a conspiracy.”

Mr. Sibal responded – “There is specific offences as well…In the context of the environment today UAPA would have been invoked. It is an exhaustive Protest petition. It deals with all aspects, all data records, the way police acted, not taking prevention measures, role of PPs, not reaching spots, producing after several years, not relying upon authenticated tapes – none of that was done. All of this not dealt by SIT or either the Magistrate or High Court. We have pointed out what was not done, what was not done, what was ought to be done…The Magistrate could have taken cognisable (on the basis of Protest Petition).”

Thereafter Mr. Sibal made submissions on the elements of conspiracy. He submitted –

“First element – Build up of communal mobilisation at pg 8…Straightaway cognisance could have been taken (by Magistrate based on Tehelka report)”

SIT Accepted statements of accused

Mr. Sibal read from the protest petition –

“The SIT without any judicial examination accepted the statement of Haresh Bhat. So, SIT accepted that. A normal prosecutor would have arrested the man on this statement and prosecuted him. Instead of arresting the man they accepted the statement. Now, Milords, with this preface I have given the original document.”

Referring to the State Intelligence Bureau messages Mr. Sibal submitted –

“The first SIB message 07.02.2002 from Upadhyay DCP to DGP Guj and all police stations warning of communal mobilisation…Another similar message from Upadhyay to DGP UP…[Reads out messages]

Mr. Sibal read out portions of the Statement of Ashok Narayan, ACS Home, No. 2 officer in Gujarat who revealed that Trishul were indeed carried by them.

After referring further to SIB messaged, Mr. Sibal took the Bench to the publication of Jan Morcha Newspapers in Faizabad, 24.02.2002 about the attacks on a particular community there which remained uninvestigated. – ‘Whether it is true, the extent it is true had to be investigated, which was never done‘.

Sibal referred to State Intelligence messages regarding acts of violence committed by Kar Sevaks while returning from Ayodhya in Sabarmati Express before reaching Godhra. Sibal says there were intelligence reports regarding communal tension.

The Bench enquiried – “This is happening in Faizabad? Were people moving from only Gujarat?”

Mr. Sibal replied – “This is the same Sabarmati Express, Milords.”

Tehelka sting tapes used in Naroda case but ignored in this case

Then, Mr. Sibal referred to the buildup of arms and ammunition from the Tehalka sting operation. Mr. Sibal emphasised that during the sting it was disclosed that VHP played a lead role in the riots.

Mr. Sibal read out portions from the Tehelka transcripts where Arvind Pandeya (PP) talks of threatening Sreekumar (Intelligence Officer). Thereafter, Mr. Sibal referred to Babu Bajrangi’s statement – ‘if police wanted to stop they could have done so because they were 50 in number.‘ He emphasised on the revelation that MOS Home asked Babu Bajrangi to leave Guj and go into hiding.

Mr. Sibal read portions of the sting on Anil Patel (Vibhag Pramukh VHP, Guj) who had claimed – ‘I handled all the cases on behalf of VHP’.

He also pointed out that Anil had today told Ashish Khetan that ‘All that I have told you that is off the record.‘ Therefore there is no reason to believe that he was reading from a movie script, which is the defence taken by him.

Mr. Sibal submitted that – ‘Milord, notice this Anil Patel not investigated, never arrested. See what the closure report says about Anil Patel…This is the only reference of Tehalka in the closure report and I read only one report. So, no reference to this Patel, despite the transcript. This is an offence in itself. This is enough to convict the man. I’ll take Your Lordship to a judgment of the SC (2001) 2 SCC 205 Poora Singh v. State of Rajasthan para 6. [Reads out relevant portion of the judgment on extra-judicial confession]’

Mr. Sibal raised a question – “What prevented the investigation and arrest of this man.”

Mr. Sibal read out the revelation of Haresh Bhat, Gujarat State President of Bajrang Dal, who went on to become an MLA after Godhra. He disclosed to Khetan about handpicking of PPs and collusion with PPs.

He further read portions of Dhawal Jayantibhai Patel’s revelation to Khetan about the making of bombs and distribution in Ahmedabad.

Referring to SIT report about Dhawal, Mr. Sibal notes: “What does SIT say? Only one reference in 1451. Not named. What was SIT doing. Therefore, there was no investigation, only an effort to protect. To protect VHP, to protect the Bajrang Dal, to protect the police, to protect the bureaucracy.’

Thereafter Mr. Sibal informed the court that in Naroda Patiya matter Ashish Khetan became a witness and the Tehelka tapes were perused to convict accused persons. He said – “They [in Naroda Patiya trial] examine him as a prosecution witness, they don’t produce him as a witness here at all.”

Mr. Sibal submitted – “We write to Mr. Malhotra in 2011 and told him that we are handing all these documents…‘

But SIT did not investigate, he added – I don’t think SIT even maintained a case log. We also gave them what they should investigate. That also they did not do.’

Thereafter Mr. Sibal elaborately discussed about the Trishul and distribution by VHP and others.

Mr. Sibal submitted that the Tehelka tapes were largely ignored by SIT. He said – “NHRC passes an order to authenticate the Tehelka tape. The SIT records 13 individuals whose extra-judicial confession was obtained. Since 2010 to investigate sting operations. Recordings were authenticated by Forensic Science Report. CBI authenticated the sting. Made detailed submission. The dates of the sting and statements are recorded.”

“They (SIT) never took the statements of the NHRC, they never took the statements of the Citizens Tribunal, they never took the statements of women organizations. And all of them had indicted the police!

He listed out names including Arvind Pandeya, Anil Patel, Haresh Bhat, Babu Bajrangi, Bharat Bhat, Deepak Shah, Dhawal Patel, Demant bhat, Dilip Trivedi, Prhalad Raju, Chawal, mangilal Jain, Kakul Pathak, Suresh Richard, whose tapes were available.

The Bench is to hear the matter next on Tuesday, 12th Nov, 2021.

The original piece may be read here