In May 2017, the Bombay High Court upheld life imprisonment for the 11 men, who had been convicted by a special trial court, and also convicted five police officials and two doctors, who had previously been acquitted by the special court. They were found guilty under Indian Penal Code sections 218 (not performing their duties) and 201 (tampering of evidence). The court dismissed the appeal filed by the 11 people sentenced to life imprisonment, challenging their conviction. The court also dismissed the CBI’s appeal seeking death sentences for three of the accused.

Later that year, in July 2017, the Supreme Court dismissed appeals filed by two doctors and four policemen, saying that they had been unreasonably acquitted, and stating, “You all have been unreasonably acquitted by the trial court in the case despite there being clear-cut evidence against you,” PTI noted. Scroll reported that IPS office R. S. Bhagora, one of the four officials, had sought a stay on his conviction, saying that he could be removed from the service. However, the Supreme Court rejected his plea, noting that he was the supervising officer for the botched probe

In October 2017, the Supreme Court had asked the Gujarat government about why police officers who had been convicted were reinstated, and asked if any action had been taken against the officials who had bungled the investigation.

Bilkis Bano was attacked in the days following the Godhra train burning in 2002 that set off communal violence across Gujarat, and several thousand families were traveling to safer areas, including that of Bilkis Bano, India Today reported in 2017. 17 members of the family were traveling by truck when they were attacked by rioters near Randhikpur village, which is close to Ahmedabad. 14 people were killed, and Bilkis Bano, who was then 19 years old and pregnant, was gang-raped. Following this, Bilkis Bano had petitioned the Supreme Court, and also approached the National Human Rights Commission. The case was eventually transferred from Gujarat to Mumbai in August 2004, and in January 2008, the special trial court found 13 of the 20 accused guilty, and handed out life sentences to 11 people. India Today has noted that with this judgment, “the Bilkis Bano case became the first case of rape linked to riots in which conviction happened since Independence.”
 

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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.

The post JUDGEMENT DAY, Tracing Chain of Command Responsibility for 2002: Zakia Jafri Case appeared first on SabrangIndia.

The Bakery Supreme Court judgement of April 12, 2004 transferring the trial to Maharashtra and ordering re-trial in the case was the first judicial acknowledgement of high level complicity. Thereafter the Special Court’s verdict of February 2006 also made small remarks on sections of the Vadodara police and their conduct during the trial. Finally it was the Naroda Patiya Special Judges verdict delivered on August 28, 2012 that pointed to a high level conspiracy behind the postr-Godhra violence.

While the Court rejected prosecution demand for death to three main perpetrators and limited the sentence to the police officials and doctors who have already served, the judgement is nevertheless serious judicial acknowledgement of  the abdication of their constitutional duty by state actors. Bilkees welcomed the verdict saying, “My rights, as a human being, as a citizen, woman, and mother were violated in the most brutal manner, but I had trust in the democratic institutions of our country. Now, my family and I feel we can begin to lead our lives again, free of fear,“ said Bano after judgment.

The court said it will consider the period undergone in jail of these seven persons as their sentence. It directed each of them to pay a fine of Rs 20,000 within eight weeks.

 A division bench of Justices V K Tahilramani and Mridula Bhatkar, however, didn't accept a plea seeking the death penalty for three of the convicts ­ Govind Nai, Sailesh Bhat and Jaswant Nai ­ described by the CBI as the main perpetrators of the crime. Bilkees Bano, then 19, and two of her chil dren were the only survivors in a group of 17 Muslims who were attacked in Randhikpur village near Dahod on March 3, 2002. Her three-year-old daughter Saleha had been bludgeoned to death with a stone.

 In its 430 page judgement that can be read here, the court observed that the men were part of a blood-thirsty mob but not `history-sheeters' or `hard-core criminals'. “Nor was there repetition of crime during that massacre that had come on record. Looking at this fact, after a gap of 15 years, we are not inclined to enhance the sentence.”

On the fate of five policemen and two doctors who had been acquitted by the trial court in 2008, the judges were in no mood to show leniency.Setting aside their acquittal, the court noted that the policemen intentionally didn't record statements of important witnesses. This is concrete judicial acknowledgement of complicity. The Court also  observed that the doctors didn't examine the private parts of many women victims despite their bodies not being fully clothed. “On perusal of the photographs, one can easily make out that the females were sexually abused when they were put to death.”

“We cannot be unmindful of the fact that the incident occurred in 2002, 15 years have elapsed since then. These accused have been in custody all this while. Looking at this fact, after a gap of 15 years, we are not inclined to enhance the sentence,” said a division bench of Justices V K Tahilramani and Mridula Bhatkar.

The bench, however, allowed the appeal filed by the prosecution against the acquittal of seven men — five policemen and two doctors — who now stand convicted for not performing their duties (under Section 218 of the IPC) and tampering of evidence (Section 201).

The court observed that all the police personnel from Limkheda who attended to Bilkis were either accused or examined by the defence as defence witnesses, and none of them supported the prosecution’s case.

“In this case, the truth and falsehood are mixed up in such a manner that at every stage of the evidence, the truth is hidden under layers of intentional laxity, omissions, contradictions and falsehood, and the truth is required to be unearthed,” said the court.

Pointing to lapses by the police in the investigation and by the doctors in carrying out the post-mortems, the court said: “We do not require any other proof to infer that police from Limkheda police station wanted to suppress the fact of rape committed on Bilkis. They wanted to screen the perpetrators of the crime for reasons best known to the police.”

Bilkis’s supplementary statement was not recorded as soon as the police were informed of the rape, the court said, adding that the police had “gagged the mouth of Bilkis so that her cry for justice would not be heard by anybody”.

The court observed that Bilkis was not sent for medical examination on the day that she reported the incident. “This corroborates the case of Bilkis that she disclosed that she was raped and injured, but with a view to suppress the fact, she was not sent for medical examination on that day. She stayed overnight in the police station and was sent the next day for medical examination,” said Justice Tahilramani.

“She is the informant and a victim, and relative of the deceased but was not taken to the spot for identification of the spot or bodies. No close relatives were also taken there,” said the court.The bench said Identification of the bodies was the first step in the investigation. “The police have conducted the post-mortem hurriedly, buried the dead bodies with sacks full of salt, so that the bodies will decompose faster,” said the court.

About the doctors, the HC said, “It is evident that they were not only casual in conducting the post-mortem but suppressed material information by way of omission… Prima facie, one may feel that medical officers are not concerned with the investigation and therefore, they are innocent. However, in our considered opinion and after close scrutiny of the evidence, we could read between the lines which show that the medical officers have completely failed to perform the post-mortem of all the bodies as is expected under the law… In the inquest panchanama, the doctors have only mentioned injury to private parts of one deceased. On perusal of the photographs, one can easily make out that the females were sexually abused when they were put to death.”

On March 3, 2002, just days after the burning of the Sabarmati Express at Godhra station, Bilkis Bano, then 19 years old and five months pregnant, was escaping mobs of rioters along with her family, on board a truck. She was accompanied by 17 others, including a two-year-old daughter.

Their truck was attacked by an armed mob in Randhikpur village of Dahod district. Fourteen members of her family were killed, including her daughter, mother Halima and cousin Shamim. Bilkis was gangraped and left for dead.

Unable to get a case registered with the local police, Bilkis approached the National Human Rights Commission and petitioned the Supreme Court. The Supreme Court directed the CBI to investigate the case. As threats mounted, the family requested the SC to move the case outside Gujarat. The SC then shifted the case to Maharashtra.

Charges were filed against 19 men in a Mumbai trial court. In January 2008, 11 were sentenced to life imprisonment for gangrape and murder. The CBI filed an appeal seeking death penalty for three convicts — Jaswantbai Nai, Govindbhai Nai and Radhesham Shah — charged with planning and executing the crime.

“I am happy that the State and its officials who emboldened, encouraged, and protected the criminals who destroyed the life of an entire community, are no longer unblemished, but today stand charged with tampering of evidence. For officers of the state, whose sworn duty is to protect citizens and enable justice, this should be their great moral shame, to bear forever,“ Bano added.

The court had last year reserved its judgment in the appeals filed by the 11 convicts and also the appeal filed by CBI for capital punishment to three of them. A special court had on January 21, 2008, convicted and sentenced to life the 11 men.

The Bilkis Bano trial began in Ahmedabad, but the Supreme Court transferred it to Mumbai in 2004 after she expressed apprehensions that witnesses could be harmed and CBI evidence tampered with. It was the second trial to be transferred after the famed Best Bakery case in April 2004.
 

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Image credit:  Reuters
 

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Credit:AFP, Sam Panthaky

UPDATE:

Today, June 17 is the day that final judgement will be delivered in the Gulberg Society Massacre. Witness Survivors have filed detailed Written Arguments making a strong case for life sentence. The advocates for the survivors, backed by Citizens for Justice and Peace (CJP) have also ,ade out a strong case for Compensation under Section 357 of the Code of Criminal Procedure. After June 2, when Judge PB Desai first declared that a total of 24 persons have been convicted and that the charge of conspiracy not accepted, there were three further dates when detailed arguments, largely on behalf of the accused (for reduction of sentence) took place. SM Vohra with Salim Shaikh argued strongly for a strong life term for all accused and also submitted written arguments.
 

Despite falling into the Rarest of the Rare Category, Victim Survivors, in written arguments to be submitted in Court on June 6, press for complete Life Imprisonment and also make out a strong Case for Compensation

Asked by Special Judge, P.B. Desai to make written submissions on quantum of punishment to be given to the accused, advocates for the victim survivors of the Gulberg carnage have argued for a full life term imprisonment for all accused and compensation awards under section 357 of the Code of Criminal Procedure. A copy of the written submissions can be read here.

A team of lawyers for the Mumbai-based Citizens for Justice and Peace (CJP) spent the entire weekend preparing the written arguments based on recent jurisprudences into the issue. A slew of judgements of India’s Supreme Court has deliberated in detail the question, holding in several cases that even in the rarest of the rate, most gruesome and pre-meditated crimes, death penalty should not be the automatic choice.

On June 2, Special Judge PB Desai had convicted 25 persons out of the total 66 accused; 11 for offences related to murder (section 302), 436 (arson) and illegal assembly (149) and another 14 for attempt to murder (Section 307) and other offences. Four of the accused convicted have been in custody for 14 years, another four for 12 and 8 years each while 17 of the accused have been out of bail. A Table on with details on this can be read here: 

Gulberg Case: Details of Accused Held Guilty by Judge PB Desai

In the application the victim survivors have argued that:
“The accused who have been convicted of offences other than under S. 302 also need to be imposed punishment which is the maximum under the provisions under which they have been convicted.

The accused were part of a mob which admittedly was carrying out mayhem, well armed and with pre-determination to cause harm, injury and death, for more than 5 hours. They are bound to have known that an attack on the Society will, in all likelihood lead to murder(s).

They have also been found guilty of burning and destroying houses (Section 436 of the Indian Penal Code) the normal consequence of which would be death of persons who were residing there or who tried to run out. Therefore in view of the judgments in (please cite the above three cases) these are aggravating circumstances and deserve to be dealt with no leniency whatsoever. 

Besides, in the application the witness survivors have argued that even for offences under Section 436 (Mischief by fire or explosive substance with intent to destroy house, etc.) there are provisions in the law for punishment of imprisonment for life. As far as being convicted under Section 149 (illegal assembly) is concerned the Supreme Court has often held that the very act and common intent of being in such an illegal assembly, armed and with criminal intent is sufficient to be considered a grave offence.

Section 357 of the CRPC, reads:
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855 ), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case

The argument that even though the crime falls under rarest of the rare, punishment should be life was dealt with in detail in this judgement in 2015. For example in para 53 of the recent 2015 Judgement, (Vishal Yadav v/s State of UP, the Court has held that:
“53. The Supreme Court observed that principles of deterrence and retribution are the cornerstones of sentencing in (1994) 2 SCC 220, Dhananjoy Chatterjee Vs. State of West Bengal and (1996) 6 SCC 241, Gentela Vijayavandhan Rao v. State of Andhara Pradesh. It was also observed that these principles also cannot be categorised as right or wrong as much depends upon the belief of the judges. The court extracted the following portion of the decision of the Supreme Court in (2006) 2 SCC 359, Shailash Jasvantbhai v. State of Gujarat :

―7. xxx xxx Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order"should meet the challenges confronting the society. xxx xxx Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other Crl.A.Nos.910, 741, 958/2008, Crl.Rev.P.No.369/2008, Crl.A.Nos.1322/2011 & 145/2012 pg. 30 attending circumstances are relevant facts which would enter into the area of consideration.‖ (Underlining by us) Death sentence jurisprudence – divergence in views The discussion on this subject is being considered under the following sub-headings:

63. In this evaluation of the jurisprudence, it is essential to note the pronouncement of the Supreme Court reported at (2013) 5 SCC 546, Shankar Kisanrao Khade v. State of Maharashtra in which the appellant, a man of 52 years, had been convicted for murder and strangulation of an 11 year old minor girl with intellectual disability after repeated rape and sodomy. Despite the satisfaction of the crime test, the criminal test and the rarest of rare case test, the court was of the view that the extreme sentence of death penalty was not warranted. The court therefore, directed the life sentence awarded for rape and murder to run consecutively.”

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On June 8, 2006 when Zakiya Ahsan Jaffri, as-sisted by Mumbai-based Citizens for Justice and Peace (CJP), filed a mammoth 119-page complaint supported by 2,000 pages of documentary evidence, little did she know – or really expect – that the Supreme Court of India would actually conduct an investigation under its watch through a Special Investigation Team (SIT) and thereafter ensure through a detailed order that her complaint would be treated as an FIR and a charge sheet also be filed. In the event that the SIT files a closure report, the petitioners’ right to a protest petition has been allowed.

The course of the Supreme Court-monitored investigations over a one-year period revealed serious lacunae in the functioning of the SIT, including the SIT chairman’s attempt at exonerating Narendra Modi. The chairman’s efforts were checked by the report of his own investigating officer (IO), AK Malhotra, and the independent assessment provided by the amicus curiae in the matter, Raju Ramachandran. After Ramachandran submitted his 10-page preliminary note in January 2011, the Supreme Court had, in March 2011, directed the SIT to reassess its own findings submitted 10 months earlier.

If nothing else, the verdict of the Supreme Court delivered on September 12, 2011 is a huge victory for the rule of law and for those of us who believe in due process and transparency and accountability in governance.

While not wasting valuable column space on the banal attempts by Modi and his party to give himself, and themselves, a clean chit, it is worth looking carefully at paragraphs 8 and 9 of the order (uploaded on the CJP website, www.cjponline.org) which clearly state that under Section 173(2) of the Code of Criminal Procedure (CrPC), the complaint – now to be treated as a de facto FIR – will, along with all relevant investigation papers, first be placed before a regular magistrate’s court and then, if so deemed, be committed to the court already hearing the Gulberg Society case. The task will be to file a substantive, expanded charge sheet against Modi and 61 others. What is more, according to the law, and a specific direction of the Supreme Court in this order, the complainants will be given a chance at every stage – in case the SIT baulks again, which is not unlikely, or the judge decides to exclude one or more individuals from among those named as accused – to be heard and carry their appeal right up to the Supreme Court.

The process will no doubt be arduous. And in the current climate where communalism and mass crimes do not commandeer national outrage as, say money matters in the 2G spectrum scam do, it will take every bit of effort to ensure that the battle, bravely fought, reaches an effective conclusion. For any one of the 20-odd magistrates before whom the SIT report/charge sheet could be placed, it will be a definitive test of independence and integrity.

Will a magistrate sitting in Ahmedabad be able to withstand the pressure, vitriol and vindictiveness of Modi’s administration? Difficult though it may be to keep the faith, at such a time we would do well to remember Judge SP Tamang, the Ahmedabad metropolitan magistrate inquiring into the Ishrat Jahan case, who, on September 7, 2009, submitted an exemplary report against all odds. The report indicted a number of police officers, including the then Ahmedabad police commissioner, for the murder in 2004 of the Mumbra-based teenager and three others that Modi and the central government had cynically made out to be hardened terrorists.

Contrary to popular belief, the Supreme Court verdict in the Zakiya Jaffri-CJP case exceeds the petitioners’ demands. While the now historic petition No. SLP 1088/2008 sought the registration of an FIR against Modi and 61 others, the Supreme Court order in fact goes several steps further, taking the criminal matter to the committal stage where cognisance will be taken, and prosecution begun, of the complaint.

Not surprisingly, the facts are at variance with the pernicious propaganda spread by the Rashtriya Swayamsevak Sangh (RSS) and the Bharatiya Janata Party (BJP) in this regard. Their views were unfortunately echoed on many of India’s television channels, raising questions about the media’s competence as well as its allegiances. Many in the broadcast media cheerfully announced a ‘clean chit’ for Modi early in the morning of September 12 and then tempered their telecasts as initial interviews with Tanvir Jaffri (son of Zakiya and the late Ahsan Jaffri) and Teesta Setalvad, and print interviews with amicus curiae Raju Ramachandran over the next few days, stated to the contrary. Far from being an exoneration of Modi and company, the recent judgement demonstrates that the apex court finds merit in the complaint and has now directed a lower court to take it forward as procedures allow.

The petitioners have never pleaded that the Supreme Court should directly indict Modi. They have never said and do not believe that anyone should be convicted without due process of law, hanged as they are so easily in RSS-desired Taliban-style kangaroo courts. They would also like to state for the record that they do not believe in the death penalty for anyone, not even a gun-wielding terrorist or a Narendra Modi who calculatedly employed all the resources at his command to paralyse his administration while murder stalked the streets. Apart from conspiracy to commit murder, other serious charges in the complaint include the deliberate efforts to doctor investigations through faulty registration of FIRs, the appointment of incompetent and ideologically biased public prosecutors, the destruction of evidence and terrorising witnesses into turning hostile.

All this and more is the subject matter of the criminal complaint filed in 2006. The only one of its kind in India, it is the first criminal complaint related to communal violence that goes beyond indicting individuals responsible for acts of violence to trace the outbreak of violence further, drawing links between the chief minister, his cabinet colleagues, leaders of empathetic political right-wing outfits and officials of the Indian Administrative Service (IAS) and the Indian Police Service (IPS) who bowed to the murderous designs of their political boss.

We must not allow ourselves to forget what Gujarat 2002 was about. Over 300 well-orchestrated incidents of violence spread across 19 of Gujarat’s 25 districts, the calculated murder of 2,500 innocents in reprisal killings, several instances of daylight rape, the destruction of Muslim-owned property worth Rs 4,000 crore and the destruction of 270 dargahs and masjids. Almost or just as bad as the violence itself is the deliberate subversion of justice, the destruction of evidence and the intimidation and influencing of witnesses.

The conclusion of the case so doggedly fought by Zakiya Ahsan Jaffri and Citizens for Justice and Peace will be a litmus test for the Indian system, to establish whether it has the courage to punish those responsible for some of its bleakest hours.

A unique trajectory

After the Gujarat police refused to entertain their complaint in June 2006, the petitioners moved the Gujarat high court for registration of an FIR against 62 persons and transfer of the investigation to the Central Bureau of Investigation (CBI). The high court dismissed their petition in November 2007. However, the petitioners efforts were subsequently rewarded when the Supreme Court took cognisance of the case on March 3, 2008. A little over a year later, on April 27, 2009, the Supreme Court handed over the investigation not to the CBI but to the Special Investigation Team headed by former CBI chief RK Raghavan, which had been appointed by the apex court 13 months earlier to reinvestigate nine major Gujarat carnage cases.

In May 2009, Communalism Combat had, in its cover story ‘The Accused’, detailed critical elements of this complaint which was substantively different from that of the Gulberg Society case, one of the nine major carnage cases being reinvestigated by the SIT. Yet both the SIT and the state of Gujarat kept confusing the two cases. The primary distinction between the carnage cases and this complaint is the list of accused and the offences.

The accused in the complaint of June 8, 2006 (now treated as an FIR by the Supreme Court) are: the chief minister, Narendra Modi, 11 state cabinet ministers, three MLAs, three members of the ruling party in the state, three office-bearers and three members of extremist right-wing organisations and 38 high-ranking police officers and bureaucrats, beginning with the director general of police, Gujarat.

The progress of this case has been marked by high drama and behind-the-scenes subterfuge. However, it received scant attention until January 20, 2011 when the newly appointed amicus curiae, Raju Ramachandran, submitted a preliminary note to the Supreme Court which resulted in the court issuing directions to the SIT to reassess its findings. Until then, the media seemed uninterested in the proceedings, choosing to overlook the additional substantive evidence that the petitioners had regularly filed in support of their original complaint. The January 2011 order was the first sign that the SIT’s pathetic attempts to exonerate Modi and others from prosecution, in spite of the investigations carried out by its own IO, AK Malhotra, would not be accepted by the court.

Within days of the amicus curiae’s report being submitted to the Supreme Court and the court’s directions in the matter, Rahul Sharma, a serving IPS officer whose upright testimonies had allowed crucial evidence to enter the public domain, was served with a show-cause notice by a vindictive Narendra Modi-led Gujarat government. The notice was served on February 4, 2011. Sharma was later charge-sheeted on August 13, 2011 for speaking to the Supreme Court-appointed SIT and the state-appointed Nanavati-Shah Commission (now the Nanavati-Mehta Commission). It was Rahul Sharma’s deposition before the Nanavati-Shah Commission in 2004, when he made available a CD containing vital cellphone call records, that enabled CJP to analyse this data and place it before the commission and the courts.

Each hearing of this and related cases in the Supreme Court was punctuated by dubious attempts by the state of Gujarat and even the SIT to mislead the court and malign the petitioners – especially after October 2009 when CJP questioned the quality of the investigations being conducted by the SIT in the nine carnage cases. CJP secretary Teesta Setalvad was a specific target.
​

In a report to the apex court during hearings held in September-October 2010, the SIT mentioned a routine call made by Setalvad to the public prosecutor in the Gulberg Society case, RC Kodekar, who claimed that she had tried to threaten him. In January 2011, during the hearing of the matter pertaining to the carnage cases, the amicus curiae in that matter, Harish Salve, pointed out correspondence between CJP and the Geneva-based United Nations Office of the High Commissioner for Human Rights on the threats received by senior advocate SM Vohra, counsel for the victims in the Gulberg case. Unfortunate observations by the bench on this matter attracted media publicity which worked to the advantage of a state responsible for mass crimes and determined to target those who stood up against it.

During this period a national daily was also used, on or about the date of every hearing, to project complete victory for the Modi government. On December 3, 2010, the date of the Supreme Court hearing in the Gujarat 2002 matters, as in January 2011, blatant efforts were made by an accused and cornered Gujarat government to manipulate sections of the media (‘SIT clears Narendra Modi of wilfully allowing post-Godhra riots’, The Times of India, December 3, 2010).

And yet, through 2010, when the SIT investigations were underway, it was reports in The Times of India and The Hindu that drew attention to the 15 phone calls made between the chief minister’s office/secretariat and the Ahmedabad police commissioner, PC Pande, between 11 a.m. and 4 p.m. on February 28, 2002, significant because they were made around the same time that the massacres at Naroda Patiya and Gulberg Society were taking place even as the police did nothing. CJP submitted detailed analyses of important phone call records to the Nanavati-Shah Commission in May 2010 (reported in Communalism Combat’s cover story, ‘Dial M for Massacre’, in June 2010) and to the Supreme Court in July 2011.

But finally, it was the exhaustive coverage by Tehelka magazine, which scooped the SIT report and contrasted this with evidence that CJP had gathered and submitted to the court, in two important stories (‘Here’s the smoking gun’, February 12, 2011, and ‘I was there. Narendra Modi said let the people vent their anger’, February 19, 2011), that impacted on the entire discourse. Television channels were now forced to look at the issues that Jaffri and CJP had raised over the past five years.

A subsequent report by Tehelka, ‘Whose Amicus is Harish Salve?’, in its March 12, 2011 issue exposed that the conduct of senior lawyer Harish Salve as amicus curiae in the Gujarat carnage cases gave rise to a conflict of interest. The story revealed that even while he was amicus curiae in the crucial mass murder cases before the Supreme Court, Salve continued to lobby the Gujarat government for projects for his wealthy corporate client, Eros Energy (Kishore Lulla). Incidentally, RK Raghavan, chairperson of the Supreme Court-appointed SIT, happens to be a corporate security adviser at a Tata company.

In April 2011 events took another dramatic turn as the much publicised affidavit of deputy inspector-general of police Sanjiv Bhatt, filed before the Supreme Court, drew widespread attention to the illegal instructions issued at a secret meeting held by Modi on February 27, 2002 – almost nine years after details of this meeting were first revealed in Crime Against Humanity, the report of the Concerned Citizens Tribunal – Gujarat 2002. In the affidavit, submitted directly to the Supreme Court registry and amicus curiae Raju Ramachandran, Bhatt detailed among other things how his testimony before the SIT in November 2009 and early 2010 had been leaked to the state government and led to intimidation from his superiors. This provided further confirmation of the petitioners’ suspicions about the conduct and integrity of the SIT.

In March 2011 the SIT had recorded a subsequent, formal statement from Bhatt under Section 161 of the CrPC. With this, Bhatt also submitted voluminous documents from the State Intelligence Bureau (SIB), including material that would prove that Modi was personally aware of the impending attack on Gulberg Society on the morning of February 28, 2002 when he deliberately did not intervene but instead allowed the mobs to attack former parliamentarian Ahsan Jaffri and others. After first informing OP Singh, Modi’s personal assistant (PA), Bhatt is stated to have personally informed the chief minister of the worsening situation at Gulberg Society.

Sanjiv Bhatt was suspended from service on August 8, 2011 and then charge-sheeted on September 18 even as Narendra Modi was fasting for ‘sadbhavna’, or communal harmony! On Friday, September 30, he was arrested on apparently trumped-up charges.

Doubts have been raised about the authenticity of Bhatt’s disclosures ever since his dramatic and relatively late appearance in public view. In response to this, we would like to point out that Sanjiv Bhatt was in fact cited as a witness by the petitioners in their original complaint precisely because his name figured extensively in the SIB records available to them.

Bearing testimony

Extracts from the complaint

List of witnesses:

1. KC Kapoor, in 2006, principal secretary, home; 2. Manoj D. Antani, in 2002, superintendent of police (SP), Bharuch; 3. AS Gehlot, in 2002, SP, Mehsana; 4. Vivek Srivastava, in 2002, SP, Kutch; 5. Himanshu Bhatt, in 2002, SP, Banaskantha; 6. Piyush Patel, in 2002, deputy commissioner of police (DCP), Vadodara; 7. Maniram, in 2002, additional director general of police (ADGP), law and order; 8. Vinod Mall, in 2002, SP, Surendranagar; 9. Sanjiv Bhatt, in 2002, SP, security, State Intelligence Bureau; 10. Jayanti Ravi, in 2002, collector, Panchmahal; 11. Neerja Gotru, in 2003, special investigating officer assigned to reopen investigations in some riot-related cases; 12. Rahul Sharma, in 2002, SP, Bhavnagar; 13. RB Sreekumar, in 2002, ADGP, intelligence.

In their complaint, the petitioners have also pointed out that Modi held several secret, undocumented meetings during that period at which many witnesses were present, who should also be examined and interrogated for information.

The superintendents of police in the districts of Mehsana, Banaskantha, Sabarkantha, Patan, Gandhinagar, Ahmedabad rural, Anand, Kheda, Vadodara rural, Godhra and Dahod, where mass killings were reported during the riots, all need to be specifically interrogated for their roles as also their failure to document illegal and unconstitutional instructions from the chief minister and other representatives of the state government.

Archived from Communalism Combat, Sept.-October 2011,Year 18, No.160 – Cover Story

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