No court with a conscience would ignore such evidence: Kapil Sibal argues in Zakia Jafri SLP Key instances of SIT ignoring evidence and failing to question those responsible, were highlighted today
10, Nov 2021 | cjp Team
On November 10, the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar continued to hear the arguments made by Senior Advocate Mr. Kapil Sibal in connection with the Special Leave Petition (SLP) filed by Zakia Jafri, the widow of slain Congress MP Ahsan Jafri, and Citizens for Justice and Peace (CJP).
In his arguments today, Mr. Sibal submitted in detail how the SIT failed to appreciate crucial and pertinent evidence related to the case and how a national tragedy could have been averted had the police and administration taken timely action.
CJP was born right after the Gujarat 2002 carnage to serve as a tool to aid in the quest for justice for victims and survivors. Our aim is to take all the cases to their logical conclusion in the courts so that there can be closure and healing. CJP has played a key role in putting together the incredibly challenging investigative ground work in the Zakia Jafri case. CJP through its Secretary Teesta Setalvad is also the second petitioner in the case after Zakia Jafri.
Clarifying confusion
A distinction was drawn during the hearing today between the Zakia Jafri case and the Gulberg massacre. While Ahsan Jafri was killed by a right wing mob while he was trying to shield members of Muslim community during the Gulberg society massage that took place during the Gujarat genocide of 2002, the Zakia Jafri case pertains to the complaint (dated June 8, 2006) filed regarding the larger conspiracy behind the Gujarat violence, especially the inaction of State actors and complicity of authorities. The SLP being heard by the Supreme Court was moved by Jafri and CJP to challenge the Closure Report of the Special Investigation Team (SIT) pertaining to the complaint of June 8, 2006, and the subsequent dismissal of their Protest Petition by the Magistrate and the Gujarat High Court. Therefore the SLP was not about any pending matter like the Gulberg trial, but in connection with the Zakia Jafri case where petitioners are demanding that a proper probe be conducted to fix responsibility on officials who permitted the violence across the state of Gujarat to continue unabated.
The hearing will continue tomorrow.
Arguments today
Advocate Sibal started with recapitulating how the complaint of Zakia Jafri about the Gujarat riots being a concerted conspiracy was not taken on as an FIR by the police which compelled her to approach the High Court and then the Supreme Court. The Supreme Court then directed that the complaint be looked at by the Special Investigation Team (SIT) without the registration of an FIR.
“I am going to demonstrate that the SIT did not do any investigation in respect of these matters,” Sibal said, beginning his arguments.
The bench began with the query that in which proceedings was the SIT directed by the Supreme Court in Jakia Nasim Ahesan & Anr vs State Of Gujarat & Ors 2011 12 SCC 302. While the SIT report was submitted to the Magistrate court ultimately, Sibal argued that it was not just in the matter of the Gulberg case which is commonly confused with the Zakia Jafri matter. He clarified that while the Gulberg case relates to one of the many incidents that took place in Gujarat during the riots, the Zakia Jafri complaint and eventually the petition relates to the larger conspiracy behind how state actors, authorities, allowed such a large scale communal violence to go on in the state with no proper law and order measures in place, allowing the perishing of thousands of innocent lives.
The SIT that was directed by the Supreme Court via an order passed in 2011 for investigation of the various cases which included the Zakia Jafri complaint of a larger conspiracy, of which the bench was eventually convinced. Sibal argued that the SIT filed a closure report before the Magistrate court without carrying out any real investigation; it did not appreciate the evidence put forth before them, they ignored the Tehelka sting operation tapes authenticated by the CBI. Even the actions and reports by two respected police officers Rahul Sharma and B Shreekumar fell on deaf ears, with the latter accused of being spiteful upon being denied a promotion.
The mandate of the SIT
In the 2011 judgement of the Supreme Court, it had directed the SIT to submit a final report and deal with the matter “in accordance with law relating to the trial of the accused, named in the report/charge-sheet, including matters falling within the ambit and scope of Section 173(8) of the Code(CrPC)”. Section 173(8) of CrPC allows the investigating officer to obtain further evidence and submit an additional report, even after the final report/chargesheet has been filed.
It further said, “If for any stated reason the SIT opines in its report, to be submitted in terms of this order, that there is no sufficient evidence or reasonable grounds for proceeding against any person named in the complaint, dated 8th June 2006, before taking a final decision on such `closure’ report, the Court shall issue notice to the complainant and make available to her copies of the statements of the witnesses, other related documents and the investigation report strictly in accordance with law…”
Sibal contended that this clearly indicated that the SIT was to do an investigation in accordance with the law. “You (SIT) don’t record statements, you don’t arrest persons, you accept the statements of the accused and file a closure report. You don’t call for CDRs, you don’t seize any phones…never checked why records were destroyed, never checked by the police were standing by, never checked how the bombs were manufactured,” Sibal submitted.
Sibal was referring to statements made by a local Vishwa Hindu Parishad (VHP) leader about bombs being kept ready for furthering violence as exposed in the Tehalka sting operation titled Operation Kalank.
Intelligence reports
Sibal pointed out that the State Intelligence Bureau (SIB) had given reports that swords and trishul were carried to Ayodhya and there was a lot of communal tension. There were even intelligence messages that after the Godhra incident, agitated speeches were given by various right-wing and even religious leaders. VHP, Bajrang Dal and Shiv Sena leaders had a meeting; kar sevkas were making speeches and vehicles were burnt and many such messages shared by intelligence agencies that were completely ignored during investigations.
The SIT failed to question why suitable action as per law was not taken by the police to prevent further exacerbation of these violent incidents. Were police officials specifically asked not to take action; is so then by whom? Or if they voluntarily decided not to take action, why were they not asked to explain that decision? Many basic questions that any investigation agency would ask, were left unasked!
The Tehelka sting operation
Sibal argued that the sting operation which was carried out by Tehelka was authenticated by the CBI and was also used in the Naroda Patiya massacre case to convict the accused. But these tapes as evidence were not even looked at by the SIT. Sibal points out how Dhawal Jayantilal Patel who was recorded in the sting tapes, demonstrated how the bombs were made and supplied for the riots, he spoke about how they were supplied, role of the police and so on. There were many such statements in the tapes which were all collectively disregarded by the SIT as extra judicial statements.
Other arguments
Sibal also pointed out how Rashtriya Swayamsevak Sangh (RSS) workers in thousands had gathered around the Sola Civil Hospital in Ahmedabad after Jaydeep Patel, a VHP leader arrived there with dead bodies from Godhra. Even in the case of handing over dead bodies to a private person like Jaydeep Patel, SIT did not raise questions as to who in position power allowed the same in complete contravention of set procedure where bodies are only handed to family members. The Mamlatdar, a junior level employee, was held responsible for the same. Sibal asked, “Can you ever imagine Mamlatdaar taking this decision when a national tragedy has happened and he takes a call to give bodies to VHP? Impossible!”
He also pointed out that in incidents of riots, the police register the FIR suo moto, however if a relative of the victim approaches the police to register FIR, they refuse since one FIR has already been registered and a second FIR in the same incident cannot be registered. He said that even if the victim’s relative is able to identify the accused, he is not named in the police’s FIR. In many cases the survivors knew their attackers well as they were from the same neighbourhood, but police shot down their claims saying it was dark, perhaps they misidentified the attackers. Sibal pointed out that this was a lacuna that needed to be corrected.
The bottom-line of the arguments today was that the SIT was clearly mandated by the Supreme Court to carry out an investigation, however, it did not carry one out, and merely filed a Closure Report which was accepted by the Magistrate court. Also, that despite there being no dearth of evidence pointing towards inaction of authorities, the same was not appreciated by the SIT.
Having lost his grandparents to communal riots, Sibal said, “Communal violence is like lava erupting from a volcano and it’s an institutionalised problem, whenever the lava touches the ground on earth it scars it and it becomes a fertile ground for future revenge.”
Throughout the hearing, he kept reiterating that in such riots, the culprit is some other person and the victim is some other innocent person. “I am not (talking about) any high ranking person who gave instructions or not. You can take me on record. This is a bigger picture if rule of law can prevail or can muck be allowed to run its course,” he added. “This case is not just this case but it’s about the future,” he emphasised.
Referring to the Magistrate court accepting the closure report and refusing to direct further investigation, Sibal said, “No court with a conscience would ignore such evidence”.
The order may be read here:
Related:
Zakia Jafri case: All we want is an investigation, argues senior counsel Kapil Sibal
