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Zakia Jafri SLP: SIT submits it conducted thorough investigation

Thu, 25 Nov 2021 03:51:58 +0000

On November 24, the Day 8 of the Zakia Jafri-CJP Special Leave Petition (SLP) hearing before the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, the respondent, Special Investigation Team (SIT) started with the submissions, represented by Senior Counsel Mukul Rohatgi.

At the outset he stated that he will demonstrate that the SIT conducted the job assigned to it thoroughly, efficiently and examined all material with due application of mind and submitted the report in the “Gulberg Case”.

“There is no material to conclude that there was any conspiracy large or small, except for the cases that have been tried,” Rohatgi started off.

Justification for bringing bodies to Ahmedabad

He gave the court a run-down of the incidents that started from the Godhra carnage on February 27, 2002 and how after the incident, Post Mortem examination of remains of victims was conducted at the Railway Yard calling doctors there, and the decision was made to bring the bodies to Ahmedabad after the then Chief Minister had visited Godhra.

He reasoned that since Sabarmati Express was headed for Ahmedabad and since 33 out of 58 bodies belonged to kin in Ahmedabad, this decision was taken. “A lot has been said about parading of dead bodies. There is no substance in this,” he submitted.

He also denied that the dead bodies were paraded in any manner. He submitted that the dead bodies were not handed over to VHP leader Jaideep Patel, and he merely accompanied the bodies in the trucks which also had a police escort.

No dispute on Tehelka tapes being genuine

Rohatgi, when he started making submissions about Tehelka sting operation tapes, said that the outset, that he was not disputing the genuineness of the tapes. “SIT has not said it is not genuine, but the SIT found the contents of the tape and statements made by the persons before (Ashish) Khetan inspired no confidence, there was no material to support them and some said it was part of a script,” he submitted. Therefore, SIT did not file any FIR or chargesheet but it still submitted the tapes in 3 cases, one of which was the Gulberg trial case. He pointed out that in the Gulberg case, the trial court rejected the sting material or the fact that the sting shows larger conspiracy.

Allegation of late deployment of army

As opposed to the petitioners’ allegation that there was delay in deployment of army and that they were not given access, Rohatgi completely refuted the same. He submitted that on February 28 itself the decision was made to call the army and a fax was sent to the Union Defense Ministry and the army was airlifted and necessary logistics were provided. He questioned why did Lt Gen Zaheeruddin Shah not come before the SIT to depose, when the SIT had called for the public to depose before it. He insisted that there was no material to support Shah’s memoir.

“It was a preliminary inquiry”

“The incident is of 2002, complaint was filed in 2006, assigned to SIT in 2009, closure report is of 2012, Protest Petition of 2013, then trial court’s decision and the High Court’s decision on the same and today we are in 2021. After so many forums it is easy to say that investigation was not done properly,” Rohatgi said.

He reasoned that when the petitioner came before the Supreme Court, since SIT was already in place and Zakia Jafri being resident of Gulberg Society where her husband was killed, the court asked SIT to examine her complaint and take steps according to law.

“The complaint was not an FIR. Supreme Court also didn’t direct FIR. Really speaking it is preliminary inquiry. But SIT still took the burden, and did much more than preliminary inquiry. Technically it was preliminary inquiry, but they did extensive inquiry. They examined 275 witnesses. It was only to ensure that nobody raises finger that they are partisan,” he said.

“You may not agree with their conclusion but they should not be accused of being partisan,” he added.

He then delved into the order passed by the Supreme Court on September 9, 2011 whereby it directed the SIT to file its final report before the court that had taken cognisance of Crime 67/2002 (Gulberg case). He said it was not an independent complaint. “In law, when chargesheet has been filed in court, this complaint in nature of further material, it cannot be FIR. This complaint is only further material in respect of crime occurred i.e. her husband killed in Gulberg,” he said.

“Our job was to see whether there was other credible material in the 2006 complaint to file chargesheet. That is my limit. My limit is to see if there is material against persons who are not already accused, and whether I should file chargesheet against other accused,” he submitted.

On the allegation that the SIT did not examine phone call data, Rohatgi questioned how can mobile phone records of 2002 be examined in 2012. No company keeps records for 10 years. Police Control Room messages are also to be deleted every 5 years, that is the mandate, he said.

Allegation of omission in complaint

Rohatgi alleged that the petitioners have removed Rahul Sharma, SP Bhavnagar, as accused in the complaint submitted to the Supreme Court as annexure. He alleged that the petitioners had named Rahul Sharma as accused in their complaint and then they have “hailed him as a hero” before this court.

The bench questioned whether the original complaint as being presented by Rohatgi was presented to the High Court when it gave its order in November 2007, Rohatgi said he would get back to the court to confirm this.

He pointed out that the complaint of 2006 did not deal with issues focused on by Sibal, like Tehelka tapes, parading of bodies. However, it is pertinent to note that Tehelka tapes were released in 2007 and that several issues argued by the petitioners were brought to light only by materials made available to them by the SIT and this was reiterated by the petitioners in all hearings before this bench.

Transfer of police officers

The petitioners have alleged that certain officers in field executive posts were transferred in the thick of the riots despite the DGP’s objections. Rohatgi argued that investigating this was beyond the prerogative of the SIT, and yet they went ahead and examined these officers who also said that transfers were the government’s prerogative. The bench reasoned that the petitioners were saying that the officers who were maintaining law and order were transferred out, but Rohatgi insisted that the petitioners’ contention was that they were transferred because they were not in favour of the state government.

Rohatgi also pointed out that RB Sreekumar was superseded in his promotions and hence, he turned against the government and brought forth certain materials only after. However, the closure report states that he mentions of assessment reports submitted by him in 2002 itself, and before April 2005, he had filed two affidavits before the Nanavati Commission already, and the April 2005 affidavit presented data on his harassment and victimisation.

Miscellaneous issues

He also alleged that the petitioners’ submission of affidavits submitted before the Nanavati Commission of officers like RB Sreekumar was ‘hearsay’.

He further stated that Arvind Pandya, who said in the Tehelka sting tapes that he was managing defence lawyers in riots case, was not a public prosecutor in any riots cases and was only representing the Gujarat government before the Nanavati Commission.

The Gujarat High Court vide its order November 2, 2007, had ordered that if the petitioner wishes that FIR be registered on her complaint dated June 8, 2006, she should do so under section 190 of CrPC.

About the allegation that Ministers were present in the Police Control rooms during the riots, Rohatgi read through the Closure report of the SIT to give certain justifications that the Minister was made to wait in a separate chamber and the other Minister only probably visited for few minutes, as also statements of few officers who said that the Minister did not visit the control room. Through this, the SIT had concluded that it could not be established whether they were present there. Rohatgi however questioned, what is wrong with Ministers visiting police control rooms?

The hearing will continue on November 25.

Zakia Jafri SLP: More skeletons tumble out of the SIT’s closet

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Zakia Jafri SLP: Were SIT’s acts of omission deliberate?

The post Zakia Jafri SLP: SIT submits it conducted thorough investigation appeared first on SabrangIndia.

Facade of normalcy post Feb 2002, reality was different: Zakia Jafri SLP

Mon, 22 Nov 2021 08:42:32 +0000

Image Courtesy:nationalheraldindia.com

During the November 17 Supreme Court hearing of the Special Leave Petition (SLP) by Zakia Jafri and Citizens for Justice and Peace (CJP), petitioners continued to offer more examples of evidence that was available with the Special Investigation Team (SIT) probing the wider conspiracy behind the Gujarat carnage of 2002. This evidence could have aided the SIT to conclude that there was a conspiracy amongst bureaucrats, police personnel and elected representatives in the Gujrat genocide of 2002.

The SLP is being heard by a Supreme Court Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar. Senior Advocate Kapil Sibal is appearing for petitioners Zakia Jafri and CJP.

Sibal pointed to records that were in possession of SIT, which the team failed to investigate including Call Data Records (CDR) collected during the riots, wireless messages of Police Control Room as also important letters written by IPS officers indicating complicity of policemen during riots and thwarting the façade of normalcy that was painted after February 2002 even as violence continued until August 2002.

Failure to look at CDRs

The Protest Petition moved by Zakia Jafri and CJP also states that the SIT failed to authenticate the Call data records (CDR) that were gathered by then SP of Bhavnagar, Rahul Sharma. These CDRs contained call details of all mobile phones that were operating from Ahmedabad city between February 25, 2002 to March 4, 2002. The data contained details of numbers to which phones were dialed and from which the calls were received, as also the approximate location of the phone from which the call was made.

This data was presented by Sharma to the Nanavati Commission. However, since the data from the two CDs received from telecom operators were zipped together and copied on to a single CD, they needed to be authenticated and compared to the original; a task that was ignored and not performed by the SIT.

Role of Shivanand Jha

The Protest Petition states that Shivanand Jjha who was the Additional Commissioner, Ahmedabad, had the city’s Police Control room under his control during the riots and the SIT failed to investigate why politicians were sitting in the PCR during the riots and whether they had any role to play in the massacre.

Issues not dealt with by the Magistrate and Guj HC

While there were several issues that were not dealt with by both the courts, they have been highlighted in detail in the SLP before the Supreme Court. This includes:

complicity of public servants which in turn includes mob mobilisation at Sola Civil Hospital,
non-response from Fire Brigade despite 45 distress calls,
selective preventive arrests,
delay in declaring curfew in several violence affected districts,
delay in army deployment.

Lt Gen Zameer Uddin Shah, in charge of the Army Deployment in Gujarat in 2002, was not examined by the SIT. In a book he wrote about the riots, he mentioned that initial reception of the army was that briefing and provisioning of suitable transport and maps were inadequate and delayed.

Further, post Godhra violence was also reported in April, June, August and September months of 2002, and as per report submitted by Dy IG E Radhakrishnan to the state’s DGP and IB, continuing spread of communal violence was reported from 993 villages and 151 towns between February and August 2002.

The wireless messages records revealed in 2011

In 2011, after almost a decade of the riots, PC Pande, who was then Commissioner of Police, Ahmedabad, presented to the SIT a wireless message book of PCR, Ahmedabad which contained some crucial messages. These are also a part of SIT records and one such message revealed that a police informer, on February 27, 2002 at about 9 P.M, had informed a wireless van that a truck full of arms was present at Rakhial char rasta. This message was in turn was passed on to SIB.

Other messages included information on transport of dead bodies from Sola Civil Hospital to crematoriums, basically what was the start of the riots. There are messages such as:

“Situation is very tense in Ramol Jamtanagar. Send ACP”

“Vehicle has been set on fire on highway near Gujarat high Court”

“10 dead bodies have been taken for cremation ceremony from Ramol Jamtanagar to Hatkeshwar Cremation Centre with crowd of 5 to 6 thousand”

These messages were the precursor to the grand scale of violence that was unleashed in the next few days and the sporadic incidents of violence that continued in the state for the next few months.

The Citizens Tribunal

The Concerned Citizens Tribunal documented, among other things, newspaper reports during the riots. These included reports of minors being shot at by the police in Vadodara, people testifying that the police watched as they were being attacked, Rapid Action Force (RAF) jawans attacking and misbehaving with Muslim women and so on.

Situation after February 2002

While there were claims for the administration that the violence was controlled within 72 hours of the breaking out of violence, the reality was different as is depicted in evidences. Senior Counsel Sibal pointed to the letter written by E Radhakrishna where he wrote to the Home Department giving a report on a review of law and order situation in the state. He has noted that there is latent communal tension in most places. He also stated that he has received complaints from minority community that out of the 302 dargahs, 209 mosques and 30 madrassas that were damaged during riots, only a handful have been repaired. Further, it was difficult for minority community to restart their commercial activities post-riots.

RB Sreekumar’s letters unheeded

Petitioners highlighted letters written by the then ADGP (Intelligence) RB Sreekumar to the government, were ignored in the aftermath of the riots. In a letter dated April 24, 2002 he has stated that total normalcy had not resumed in Ahmedabad, and that feedback obtained from the bulk of Muslim community indicates that they perceive themselves as a section of the population, left at the total mercy of the radical communal elements led by Hindu, organizations like Bajrang Dal and Vishva Hindu Parishad (VHP.).

He also stated, “It is alleged that the police officers are not fair in recording the complaints (FIR) of minority community and often pressurize and strong persuasive tactics are also adopted for dissuading the complainants from giving complaints, to minimize the ingredients of offence, and also to avoid naming of specific accused persons.” He also noted that many acts of crimes, which took place as different transactions are clubbed together and registered as single FIR affecting the reliability and evidentiary value of the complaints.

Here are some excerpts from his letter:

“There are many communally inciting pamphlets, handbills etc. issued by Hindu and Muslim communalists, without any indication about the identity of publisher, printers and other details. But it is noticed that VHP has recently issued a pamphlet containing elements of communal instigation.”

“Inability of Ahmedabad City police to contain and control violence unleashed by the communally oriented unruly mobs created an atmosphere of permissiveness and this has eroded the image of police.”

SIB’s Actionable Points Given to KPS Gill

Sreekumar had submitted these actionable points to KPS Gill, former Punjab DGP, who was appointed as advisor to the Chief Minister. These included points like replacing present incumbents from executive posts where police either remained inactive during the riots or played a collaborative role with the rioters for deterrent effect, identifying storage points of arms and weapons. The letter also pointed out that VHP and Bajrang Dal were pressuring the minority community to withdraw FIRs as a compromise for ensuring their return to their residences.

Sibal argued that all of these letters were available with the SIT and there is a clear mention of what action was needed at that time and in many places complicity of police is also hinted, yet, SIT did not accept his letters as evidence of conspiracy deeming him to be a ‘motivated officer’. It was declared that since he was superseded in his promotion in 2005, he was acting in a motivated fashion. However, these letters were written in 2002, Sibal pointed out.

In fact, Sreekumar’s version was corroborated by another officer before the SIT, Maniram who was Additional DG (Law & Order), Gujarat during the riots. In his statement, he writes that “I informed Shri Gill that the tension continued to prevail in Ahmedabad city amongst the Hindus and Muslims. I further pointed out to Shri Gil that officers who were responsible for not preventing the rights resulting in loss of life and property in their jurisdiction should be immediately transferred irrespective of their status and good officers posted in their back.”

“This is all consistent and corroborated,” explained Sibal, yet it was dismissed by the SIT.

Minister instructs mob, indicates conspiracy?

Among the many communications that point to the conspiracy behind the post Godhra riots, was one confidential letter written by PC Pandey who was then Ahmedabad CP, to K Chakravarthy who was then Gujarat DGP. Pandey wrote that he has received information that on April 15, 2002, outside Delhi Gate near Kapadia High school, that Bharatbhai Barot who was then Minister of State for Food and Civil Supplies, came in private white car and he had some talks with mob. Immediately after he went away, the incidents of arson took place. He noted that in the mob were workers of Bajrang Dal such as Harshad Panchal, Dipak Goradia and Dinesh Prajapati.

“It is requested to bring this matter to the knowledge of Government and to make an arrangement that Hon’ble Ministers of Government may not do such activity,” he concluded in his letter.

The next hearing is scheduled for November 23.

The order may be read here:

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Communal violence is like lava, leaving ground fertile for revenge: Kapil Sibal in Zakia Jafri SLP

Wed, 10 Nov 2021 18:29:59 +0000

Image Courtesy:vibesofindia.com

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.

Clarifying confusion

A distinction was drawn during the hearing today between the Zakia Jafri case and the Gilberg 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 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 bottomline 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: