On December 8, the petitioners made their final submissions in the Zakia Jafri SLP hearing before the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar and are likely to conclude today. Senior Counsel Mr. Kappil Sibal, representing the petitioners, Zakia Jafri and Citizens for Justice and Peace (CJP), made several submissions countering everything the SIT had put before the court and referred to all such material that required further investigation.
Sibal began his submission referring to the Tehelka sting operation tapes stating that other than Babu Bajrangi, who was prosecuted in Naroda Patiya trial, none of the persons are accused in any of the 9 trials that SIT was concerned with. When the Bench asked whether they were accused in any case related to the riots, Sibal said that was for the state government to confirm, yet he made the submission, “I daresay they have not been prosecuted in any case.”
Sibal pointed out how SIT had questioned all persons who were in the Tehelka sting operation tapes but they had merely recorded the statements and accepted these statements as is. He pointed out that the same pattern was adopted for these individuals like Bharat Bhatt, Deepak Shah and Dhimant Bhatt. In fact, Sibal submitted that even though Babu Bajrangi was convicted in the Naroda Patiya trial case, there are many other materials against him in the Tehelka tapes which make up separate offences and for which he should be tried separately.
After reading out Babu Bajrangi’s explanation for making those statements in the Tehelka tapes Sibal said, “SIT is now doing what the defence is required to do. They are defending the accused.”
The petitioners submitted that the Magistrate had based findings in the order on section 161 (CrPC) statements.
“Everything in a chargesheet relied upon by prosecution has to be proved. Nothing stated therein is proof itself. Therefore, even this tape has to come to court. They just took the statement and accepted. There is so much in the tapes that it could have led them to other persons,” Sibal submitted.
He also asked on what basis was the SIT saying that the Tehelka tapes are unreliable? Sibal stated that SIT had submitted it as prosecution evidence in other trials and except in the Gulberg trial case, it was accepted as evidence which ended up in convictions of many. “How can SIT, which had relied upon the sting, today for the first time say they did not find it reliable? Who are you to say it is not reliable? Is this your oral statement? This is just a biased statement, meant to protect the accused,” he said.
The petitioners submitted that the state chose not to act despite being aware of the Tehelka tapes and even the SIT chose not to act in that regard. “We are in 2021, what investigation will happen now after 19 years? They have successfully protected the accused which was their motive. They wanted to make sure we reach this stage. That is why they say we want to keep the pot boiling. They want this material to be effaced from the memory of the nation.”
Contention of larger conspiracy
The Bench asked Sibal to focus on what relief the petitioners wanted from the court, since the larger conspiracy allegation was not being urged by them. Sibal contended that how can larger conspiracy be established without investigation. Bench said that SIT submitted that investigation has already been done but they did not read out that part as the petitioners did not urge it. So, what now remains is conspiracy at smaller, grassroot levels.
Sibal contended that they are not arguing with regards to just one person but if the tapes were investigated, the SIT would have found other persons involved in the conspiracy. He said, “If you don’t investigate how will you find larger conspiracy? Larger conspiracy does not mean just one person.” Sibal further argued, “The confessions themselves suggest larger conspiracy which was not investigated. Let’s not deal with one act or one person. I have no desire to go there. My only desire is that there are persons involved which is reflected in these tapes and they need to be investigated so conspiracy is revealed. If one person supplied arms, there are other persons involved. You may not start with 120B but you could be led to 120B (criminal conspiracy) during investigation.”
The petitioners submitted that the conspiracy that they are referring to does not only relate to the meeting of February 27, 2002 but the many incidents before and after. “The undisputed evidence demonstrates a larger conspiracy (with respect of Tehelka tapes etc.). It is this conspiracy which is not investigated by SIT. That is my statement,” Sibal said.
Sibal also said that the “Complaint is only a piece of information, it is only the starting point. Disclosure in the tapes show conspiracy. Investigation should have been conducted, which might have led to a much larger conspiracy.”
The petitioners then cited Firozuddin Basheeruddin & Ors vs State Of Kerala 2001 7 SCC 596 on the issue of conspiracy
“The court has to be satisfied that there is a reasonable ground to believe the existence of the conspiracy and that is a matter for judicial inference from proved facts and circumstances.
Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission.”
Argument of Everything was fine in the state
The petitioners submitted that other official records which do not per se amount to the commission of an offence, but indicate delay in response, for which the SIT should have carried out a thorough investigation to find out why the authorities chose not to act given the situation on the ground. The Supreme Court had stayed trials in 2003 because the NHRC brought to the court’s notice and the victims complained that the bulk FIRs were being recorded without naming the accused.
Sibal said, “To say the state was doing everything right goes against what the Supreme Court said. This court was not happy, NHRC was not happy; hence, SIT was obliged to carry out further investigation in these cases.”
When the petitioners submitted about the non-responsive fire brigade, the bench interjected that the SIT submitted that investigation was done in this regard and that they could not respond since roads were blocked and officials were on duty. Sibal responded, “It has not been recorded that they were on duty, hence they did not respond to the calls.”
Call Data records
The petitioners submitted that CDR records in the possession of Rahul Sharma would have also indicated the calls made from various mobile numbers when violence was at its peak in Ahmedabad. The frequency of calls made from a particular phone number to a particular individual, their analysis, their corroboration by recording statements were all steps that could have been adopted by the SIT.
The SIT came in 6 years later, however, Sibal said that at least they could have questioned why CDR was not checked by the state investigating agencies.
The petitioners also questioned why SIT did not put then Ahmedabad Police Commissioner PC Pandey to question when he revealed the PCR messages almost 8 years later, and only after the Supreme Court had directed; when the initial position of the State was that all such messages had been destroyed as per protocol.
No victim statements recorded
The petitioners made a submission that the SIT had not recorded even one statement of victims of the riots. Sibal said there was only one instance when victim statements were recorded, which was to show an official Shivanand Jha in good light and to exonerate him. “With greatest humility I say, with this kind of evidence the SIT cannot be given a certificate of good conduct,” Sibal said.
The petitioners also submitted that the public notice inviting victims/witnesses to come before the SIT to depose was issued in 2008, and after the apex court’s direction to SIT about Zakia Jafri’s complaint, no such notice was issued, as far as they are aware.
Material requiring further investigation
The petitioners have listed out issues that required further investigation which include handing over of bodies to Jaideep Patel of VHP, Post Mortems in Railway yard in the sight of a crowd, parading of bodies during funeral procession, delay in calling the army, delay in imposing curfew and so on.
Sibal commented on SIT’s submission that the bodies were not handed over to Patel, “SIT submitted bodies were not handed over to VHP. There is nothing on record to show. This was an oral statement. In fact, evidence is to the contrary.” He then read out the affidavit filed by the Mamlatdar where he states that the bodies were handed over to Patel under instructions of Godhra DM, Jayanti Ravi and Additional DM BN Damor to shift the bodies with police escort. Additionally, Hasmukhbhai Pateel, a leader with Jaideep Patel signed as a person accepting the corpses as well.
Sibal pointed out that an escort is only meant for protection and when the bodies reached Sola Civil Hospital, they were handed over to the hospital by Jaideep Patel.
Further, the petitioners also clarified that they never submitted that the bodies were paraded from Godhra but only said that they were paraded when the funeral processions were carried out from Sola Civil Hospital.
SIT also denied the crowd of 3,000 present at the hospital at 4 A.M, while the petitioners presented PCR messages that a message was sent out informing about 3,000 swayam sevaks being present at Sola Civil Hospital at 4 A.M.
The argument of ‘no violence till 1 pm’
The petitioners submitted that there were 14 FIRs lodged before 1 P.M in Ahmedabad on February 28, 2002, which refutes the submission of the SIT that there was no violence before 1 P.M that day.
There are PCR messages that say “situation very tense”, “vehicle set on fire near Gujarat High Court ” and so on, all before 1 P.M.
Adverse remarks on SIT by court
The Gujarat High Court, in the Naroda Patiya judgement gave adverse remarks about the SIT:
“XXIII INVESTIGATION BY THE SIT:
“323. The Investigating Officer (SIT) has recorded statements of witnesses in blatant breach of the provisions of section 161 of the Code, inasmuch he has obtained signatures of the witnesses on such statements and more particularly on the statements of the police officers, which is clearly borne out from the testimonies of the witness and the police witnesses whose statements were recorded by him…. section 162 of the Code expressly bars a statement recorded by the police being signed by the person making it. Despite such express provision in the Code, Page 2882 of 3422 R/CR.A/1713/201 investigating Officer has obtained signatures of the persons whose statements he had recorded on such statements. Even in case of high ranking police officers, such signatures have been obtained. One wonders whether the Investigating Officer (SIT) and such high ranking officers were not aware of these basic provisions of law…. There are several other shortfalls in the investigation conducted by the SIT, reference to which has been made at the particular stage in the judgment.”
Finality of Criminal Proceedings
Once an accused is convicted by the Magistrate, upheld by the High Court, as well as the Supreme Court, the accused cannot be prosecuted again on the same facts for the same offence, under Article 20 of the Constitution. Article 20 does not apply in cases of acquittal, the petitioners submitted. Fresh discovery of facts may result in a fresh trial after cognizance is taken by the Magistrate. This is why for offences punishable with a sentence for over 3 years, the CrPC does not provide for limitation.
The petitioners also submitted that this principle cannot apply in a case where a court has not taken cognisance of an offence and closure report is filed and accepted by the court.
Discrediting RB Sreekumar
The SIT undermined the evidence provided by RB Sreekumar, former Director General of Police (DGP), Gujarat because of his subsequent supersession. However, the petitioners submitted that the supersession of Sreekumar has nothing to do with the documentary evidence as it is consistent with the records available from 2002 much before his supersession in 2005.
The petitioners provided a list of all evidence and affidavit filed by Sreekumar before the SIT in the year 2002 which was all contemporaneous evidence.
Questioning Zakia’s deposition in Gulberg trail case
The petitioners submitted that in the Gulberg trial case, Zakia Jafri was not a complainant, it was not her private complaint. As a prosecution witness, the SIT required the witness to prove certain facts, which were required to be proved by the prosecution. Appearing as prosecution witness, she could have only given evidence with respect to what she was required to prove in that case and nothing beyond that. A prosecution witness cannot rely on a complaint which is not relied upon in the charge sheet. Even the prosecution in the Gulberg trial could not have brought the complaint on record, since it was not relied upon during the course of the Gulberg trial.
In any case, as per the petitioners the Supreme Court order directed that the SIT look into her complaint and that order cannot be diluted by contending that she should have raised the issue of her complaint as a prosecution witness in the Gulberg trial. Any such attempt would be in effect seeking to nullify the order of the Supreme Court.
Allegations of so-called doctored complaint
The petitioners state that their clarification about the inadvertent error is mentioned not only in the SIT report but also in their protest petition. This means the SIT had taken note of it already while filing the closure report. The clarification states that Rahul Sharma and Satish Verma are both witnesses and were inadvertently listed as accused persons. The petitioners also submitted that this very complaint was filed before the High Court as well and that they have not concealed anything and also questioned that if this were the case why did SIT not raise such contention before the High Court when they were in appeal.
State government only attacking the petitioner
Towards the conclusion of the hearing, Sibal asked the Bench if they wanted him to address the allegations and submissions made by the state government through SG Tushar Mehta which were all deprecating Petitioner No. 2, Teesta Setalvad and dealt with mainly irrelevant material to the case. Sibal submitted that instead of responding to such voluminous evidence given by them, the State only attacked Setalvad.
The Bench responded saying, “You may address whatever you want to say. We made it clear when he was arguing, that we will not give opinion on other proceedings. We will not record findings on those proceedings.”
Sibal said that the challenge to the locus of petitioner no. 2 is based on unsubstantiated allegations in a judgment of Gujarat High Court. “Is it illegal to help a widow who has no recourse to justice? If the victims feel that the State has not been fair to them what is wrong with that. This means every victim who acts against the State would be characterised in this fashion. What is the sinister agenda?”
He added, “She (Teesta) is not seeking any personal relief. She was doing it openly, not secretly. Tutoring a witness is not the same as guiding a witness. The injured witnesses were in such a state of mind that they needed (guidance).”
Sibal then submitted that under the law it is the duty to give such information and cited section 39 of CrPC which states that Every person, aware of the commission of, or of the intention of any other person to commit, certain offences shall forthwith give information to the nearest Magistrate or police officer of such commission or intention.