JUDGEMENT DAY, Tracing Chain of Command Responsibility for 2002: Zakia Jafri Case

UPDATE on August 22, 2017

Judgement in Zakia Jafri Case Deferred

The Judgement in the Zakia Jafri Case –a criminal revision application filed  by the survivor, Zakia Jafri,  has been deferred. On Monday Morning, Justice Gokhani sat at 11 a.m. and asked the SIT counsel, Ratan Kodekar to be present as she wished certain c;arifications. Thereafter, after sitting again, first at 1 p.m. and then again at 2.30 p.m., counsel Mihir Desai (for Zakia Jafri) and SIT counsel, Vaidyanathan have been asked to remain present next week –at a mutually convenient date –to address the court on clarifications. Presently the date fixed is August 28 but this may be slightly altered. Judgement will be pronounced after that.

Earlier in the day,  the judgement had been fixed for Orders on August 21, 2017.

Published on August 21, 2017:
Today is the day of judgement, for the second time in the famed Zakia Jafri case, a legal effort that began with a 119-page criminal complaint filed on June 8, 2006. At about 11 a.m. on August 21, 2017, Justice Sonia Gokhani is scheduled to deliver her verdict on whether or not Magistrate Ganatra was justified in rejecing the 1000 page Protest Petition filed by Ms Zakia Jafri on April 15, 2013 and also examine the manner in which he did so. Zakia Jafri, assisted by the Ciizens for Justice and Peace, appealed, through a Criminal Revision Application (CRP Nos 205/2014) for a setting aside of the magistrate’s order dated December 26, 2013 and has prayed also for a further investigation into the huge evidence brought by the Survivor on the record of the court.

 
The 78 year old survivor of 2002, widow of the late Ahsan Jafri has sought to establish a chain of command responsibility and culpability, criminal and administrative, in the wilful breakdown of law and order post February 27, 2002 in Godhra that led to the loss of 1926 lives, all from the beleaguered minority community. Targeted violence and subversion of the rule of law continued right until September 2002. Even when elections were held and conducted in December 2002, there were a substantial number of internally displaced persons living in relief camps all over the state.
 
Zakia Jafri, marshalling exhaustive documentary evidence of about 10,000 pages of the 25,000 page Investigation record has made out a strong case for Conspiracy, Abetment, Hate Speech, Lack of investigation and need for further investigation into the criminal complaint, Evidence and Statements of RB Sreekumar and Rahul Sharma and the Role of Amicus Curiae have been garnered to establish culpability in the mass genocidal carnage that broke out in Gujarat in 2002.
 
Conspiracy: It is the case of this valiant survivor of 2002 that the incidents of violence across the State of Gujarat that followed after the unfortunate burning of the Sabarmati Express at Godhra were encouraged and condoned and overtly supported by the political party in power; and the actions and omissions on part of the Government of Gujarat and the Law and Order machinery at the instance of the elected officials and these facts, proven by evidence fall squarely under the definition of comspiracy as understood in law. (section 120-B of the Indian Penal Code).The conspirators can be classified into four groups i.e. Political Establishment, Bureaucrats, Police officers and Private organizations/individuals.

Further it is the Petitioner’s case that the conspiracy was executed at four levels:
 

f.  Post-mortems conducted in the open at the railway yard at Godhra. This happened initially in the presence of the then health minister, Ashok Bhatt and later the chief minister, himself. This allowed gruesome photographs of the remains of the Godhra victims to be circulated widely, deliberately fomenting sentiments of mass revenge. The Gujarat Police Manual expressly prohibits the taking and propgataion of such gruseome photographs.arat Police Manual)Phone records and other evidence detailed in the Protest Petition show that Doctors from Districts outside Godhra (Panchmahal) were summoned to condiuct these irregular post mortems.

 
  All in all, the petitioner has argued that the magistrate has erred by refusing to go in to the larger questions of conspiracy and confining the scope of this case to the Gulberg Society Case.
 
Abetment: The illegal actions of the conspirators named in the complaint (and others who’s names came up in the course of the investigations) and the wilful omission of their constitutional and statutory duties apart from abdication of their lawful duties the said elected representatives and law enforcement officials’ actions fulfil all the ingredients of Abetment under Section 107 of the Indian Penal Code.
 
The abetment is at the following two levels:

1. Abettors who were actively part of the conspiracy and abated by perpetuating the violence through their actions and
2. Abettors who abated by omissions of their constitutional and statutory duties.

In various judgments of the Supreme Court, Gujarat High Court, Bombay Courts and various Sessions Courts there have been strong findings of subversive tactics employed by the State of Gujarat. A chart showing various findings against the State of Gujarat by theHon’ble Supreme Court, Hon’ble Gujarat High Court, Hon’ble Bombay High Court and various Sessions Courts that was annexed to the written arguments may be erad here.
 
The Supreme Court, in 2003, took such a serious view of not just the outbreak of violence but the subsequent subversions that the DGP (Chakravarthi) and then Chief Secretary (PK Laheri), who were cross examined in open Court –because of their failure in allowing key witnesses in the Best Bakery case from turning hostile– on 19.09.2003. On 12.07.2004, sharp observations were made by the SC on the Gujarat Govt misleading the SC on question of selective bail applications by PPs; on 17.08.2004, the Re-Opening of 2,000 cases was ordered by the Supreme Court.

Bandh: After the Godhra incident VHP called for Gujarat Bandh on 28-02-2002. Several messages from various district police units record the inherent dangers with the VHP-called and ruling party-supported Bandh on 28.2.2002. SIB Messages sent warnings of violent repercussions due to the Bandh call. Yet the ruling party in the state government decided to support the Bandh.

By supporting the Bandh, not declaring curfew as the situation demanded, not undertaking preventive arrest or hauling up communal goondas, allowing incendiary processions all over Ahmedabad, all of them together ensured that the orgy of violence, right from the attack on the high court judges to the innocent residents of NarodaPatia, Gulberg society, Kalupur etc. the survivor has argued.
 
Law and Order Meeting dated 27.02.2002: Ms Jafri has argued that the magistrate has given a perverse finding with respect to the meeting of 27.02.2002,  the Supreme Court Judgment in the case of Sanjiv Bhatt (2016) 1 SCC 1 has categorically held that it is not going in to the issue of his presence at the said meeting. While Sanjiv Bhatt’s statement has been contradicted by few of the persons present the law and order meeting, some of the others have claimed they have no recollection of his presence. The Amicus Curie has himself has felt that this issue needs to be dealt with at the trail stage, apart from Sanjiv Bhatt, Late HarenPandya stated before the Citizens’ Tribunal (Consisting of two retired judges i.e. Justice P. B. Sawant and Justice Suresh Hosbet) that Mr.Modi at the said meeting did utter the statement which are attributed to Mr.Modi. Statement of both retired judges were recorded by SIT and they stand by what HarenPandya had told them, even VithalbhaiPandya father of Late HarenPandya had made a statement before the SIT categorically stating that his son had attended the said meeting at NarendraModi’s residence and the alleged statements were made. Therefore it is submitted that there is sufficient ground to proceed for trial.
 
Hate Speech: The Protest Petition before the Magistrate had highlighted certain instances of hate speeches by NarendraModi and other prominent members of the SanghParivar and how the State Government’s Home Department under NarendraModi turned a blind eye towards various SIB reports for prosecuting certain VHP office bearers and publishing houses for propagating an incendiary rhetoric.

1. Hate Speech in the present case falls under the following five heads:
   1. Statements of Mr.Narendra Modi on 27.02.2002
   2. Subsequent statements of Mr.NarendraModi to print and electronic media.
   3. Mr.NarendraModi’s speech at Becharaji
   4. Vernacular Press
   5. Pamphlets issued by Right wing organisations
2. The hate speech has been investigated as an independent head by the SIT and has been summarily brushed off in the Closure Report.
3. The glaring deficiencies of the SIT investigation with respect to Hate Speech have been highlighted in the Protest Petition.
4. The official press release of the Gujarat Government and Speech of Mr.Modi on 27-28/02/2002 on Doordarshan’s Gujarati channel concerning the Godhra incident.
5. March 1, 2002 interview of the Chief Minister on Zee television wherein he openly speaks of the “Action-Reaction” theory, to a substantive extent justifying the post-Godhra Violence.
6. Rahul Sharma, then SP, Bhavnagar had sought permission to register a criminal case against the Sandesh under the provisions of Rule 53(10) of the Gujarat Police Manual Volume III.
7. Pertinent to note that the Police wished to prosecute these newspapers and request for the same had been forwarded to the Home Ministry. But, NarendraModi who was also the Home Minister did not give the necessary permission for starting criminal proceedings against the said newspapers. 
8. Instead of taking action against the said newspaper, Editor’s Guild Report of 2002(Page No.27) reveals that the CMO wrote congratulatory letters to Sandesh and other newspapers for certain kind of inflammatory writing. Editor’s Guild Report of 2002(Page No.27) reveals that the CMO wrote congratulatory letters to Sandesh and other newspapers for certain kind of inflammatory writing. (Rahul Sharma’s letter for permission file a criminal case against Sandesh is evidence of this)
9. On 16-04-2002 Sreekumar wrote a letter to DGP (Copy to ACS- Home) to take legal action against VHP office bearers for publishing pamphlets containing elements of communal instigation.
10. Sreekumar’s register shows that the DGP advised against taking any action against vernacular media.
11. NarendraModi’s interview to Star News dated 10-03-2002.
12. NarendraModi, at Becharaji (Mehsana district of Gujarat State) on 9.9.2002. Where he proceeded to make highly communal statements like,

“What brother, should we run relief camps? (referring to relief camps for riot affected Muslims). Should I start children producing centres there, i.e., relief camps? We want to achieve progress by pursuing the policy of family planning with determination. We are 5 and ours are 25!!! (Amepanch, Amara panch, referring to the claim that every Muslim family produces five children).”
(English Translation reproduced in the Protest Petition.

• The field officers of the SIB notings on the speech clearly find it can incite hatred and transcript, similar views were held by Amicus Curiae and Malhotra SIT Report. Modi told the SIT his speech did not refer to any community; it was a political speech in which he highlighted the increasing population of India.
• Other instances of hate speech which have been completely ignored by the SIT.
• The statement of Ashok Narayan before the SIT that NarendraModi was non-commital in acting regarding proposed action against hate speech

 
Ms Jafri through her legal team has argued that the magistrate’s order does not deal with the various hate speeches mentioned in the Protest Petition. It exonerates Mr.Modi by saying that he regular appealed for peace and order. The Petitioner states that the SIT investigation also fails to consider the aforesaid aspects of Hate Speech. The magistrate’s judgment fails to deal with Becharaji Speech altogether. This shows total non-application of mind and failure to exercise jurisdiction, as on the face of it the speech at Becharaji (which is not disputed) is hate speech. It is the Petitioner’s case that the aforesaid instances of hate speech clear fulfil the ingredients of hate speech as laid down,at this prima facie stage, are offences inter alia under Sections 153A (1) (a) & (b), 153B (1) (c), 166 and 505 (2) of the Indian Penal Code.
 
The appeal of Zakia Jafri that will be decided today, August 21 is the criminal revision has been filed against the Special Investigation Team (SIT) appointed by the Supreme who filed a closure report on February 8, 2012 without giving notice or hearing the complainant or petitioner.The SC was faced with contradictory options: while SIT said there was no evidence to prosecute powerful politicians, bureaycrats and administrators, amicus curaie of the court, Raju Ramachandran arrived to a contrary conclusion and opined clearly that there was enough material to prosecute former chief minister, Narendra Modi for vituperative hate speech.
 
On September 12, 2011, the Supreme Court had, while delivering judgement on the special leave petition filed by Zakia Jafri and Citizens for Justice and Peace (CJP) remanded the entire matter to a magistrate, specifically protecting the right of the complainant, under law, to file a protest petition after examining the investigation records if she was not sastisfied with the investigation by SIT. For a tortuous year after the filing of the closure report in February 2012, the SIT adamantly refused to follow the letter and spirit of the final order of the Supreme Court and resisted handing over the investigation papers to the complainant. These 23,000 pages of box files –that contained invaluable evidence were accessed after first, Magistrate Bhat granted these to the petitioner in April 2012 after which the rest were obtained following a further order of the Supreme Court in February 2013.
 
In the detailed submissions, oral and written (written submissions of the petitioner may be read here) Zakia Jafri has argued that Ganatra’s order was “riddled with deficiencies in law and on facts and the Petitioner is filing these written submissions highlight the said infirmities in the December 26, 2012 order. Further she has stated at the outset that “when the Closure Report submitted by the Respondent SIT, under Section 173 of the CRPC came up for perusal before him and the same was contested by the Petitioner by filing a Protest Petition, he had four options:

a) he could have been convinced,after considering the “Closure/Final Report” and the Protest Petition that no case is made out for trial, following which he could have accepted the final report and closed the proceedings;

b) he could have concluded on the basis of the facts, set out in the closure report, that offences had been committed and following this he could have proceededto take cognizance of the offence, under Section 190(1)(b) or 190(1)(c) of the Code of Criminal Procedure, notwithstanding the contrary opinion of the SIT, expressed in the Closure Report;

c) he could have concluded after examining the Closure Report that a full and complete investigation was still needed or that the SIT’s investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, in which case, he would have had jurisdiction to give directions to the police, to conduct further investigation. He could have then declined to accept the final report and direct the police to make further investigation as per the provisions of the Code of Criminal Procedure. (AbhinandanJha Vs. Dinesh Mishra, (1967) 3 SCR 668, Paragraph No. 15 and 21)
 
d) he could have treated the Protest Petition as a complaint and proceed to deal therewith in terms of Chapter XV of the Code of Criminal Procedure. (Popular Muthiah Vs. State (2006) 7 SCC 296, Paragraph No.21 and 54)
 
The petitioner has also argued that at a fundamental level the magistrate has erred in holding that it was not within his powers to direct further investigation or to treat the Protest Petition as a complaint. Further the magistrate’s exclusion of the option or of further investigation by treating the Protest Petition as a complaint is also completely misplaced and a mis-reading of the order of the SC dated September 12, 2011. Theorder is further flawed in holding that it was not open to the Learned Magistrate to order further investigation under section 173(8) of the Code of Criminal Procedure because the Supreme Court had already included the report of the SIT within the purview of section 173(8). Ms Jafri further states that the magistrate’s order dated 26.12.2013 shows that the Proceedings before the Supreme Court and the Orders passed by the Supreme Court  particularly orders dated 12.09.2011 and 07.02.2013 were not only not understood properly but were misread. It is submitted that the order is perverse to the extent that the Learned Magistrate refused to exercise his statutory powers and limits the scope of the proceedings before him whether to accept the closure report of the Respondent SIT or to take cognizance based on the facts brought on record by the Closure Report. Thus, the order dated 26.12.2013 is bad in law and should to be set aside.
 
Zakia Jafri has argued that the magistrate had further erred by going into the veracity, truthfulness or otherwise of the material on record, which stage comes later during the trial. At this stage the magistrate was legally required to prima facie examine the material on record to find out whether case of reasonable suspicion to take cognizance against the accused was made out. (S K Sinha Vs. State (2008) 2 SCC 492, Paragraph No.22)
 
A committed legal team was part of this whole effort. Advocates Mihir Desai, Sanjay Parikh, Suhel Tirmizi, Navroz Seervai, Kamini Jaiswal, Mihir Joshi, Aparna Bhat, Ramesh Pukhwambam have been involved. Secretary CJP, Teesta Setalvad too has been part of the framing of facts and arguments in this case.
 
Today will decide whether the prevailing culture of impunity will be punctured or whether, for the second time, ‘a clean chit’ will have been given to Narendra Modi and five dozen others. A journey for establishment of the chain of command responsibility, will, one way or another not end here. One or the other agrieved party will definitely appeal this high stakes case in the Supreme Court.