Senior counsel Kapil Sibal continued to argue the Zakia Jafri matter today, on October 27, before the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar. The court will now hear the matter on November 10.
Zakia Jafri and Citizens for Justice and Peace, have challenged 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 with official evidence from the state intelligence bureau (SIB) and police control room records (PCR).
On June 8, 2006, Ms. Jafri along with CJP had filed a complaint addressed to the then DGP, Gujarat, PC Pande, wherein the complainants had categorically alleged that there was a wide-ranging conspiracy afoot that led to the collapse of the law-and-order situation in Gujarat after the Godhra train burning incident.
Mr. Sibal said that the main grievance is against the Magistrate’s inaction to take cognisance of the offences. He said, “It is undoubtedly true that before a Magistrate proceeds to accept the final report under section 173 of the CrPC and exonerate the accused, it is incumbent upon the Magistrate to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter…the duties of the Magistrate are not limited to the final reports, it is incumbent upon him to look into all materials.”
Sibal argued, “This is the statement of the law,” which was ignored.
Inaction by State actors, yet no investigation
He further argued how the State agencies did very little to control the outbreak of mass violence all over the state in February 2002. “Record after record, I will show this court. There were phone calls made to the fire brigade from the police control rooms. No phone calls were answered. This is part of the SIT, part of official records, but no investigation happened, as to why it was not answered. Fire brigade officials were not questioned, neither were the police functionaries. Intelligence reports record that mobs were allowed to gather, provoke attacks, but no arrests were made under preventive detention. This was not looked at by the SIT or any other authority. These documents were not analysed,” he said.
The court had interjected to ask whether any individual’s statement was recorded from the fire brigade room. Sibal said, “No My Lords, and that’s my grievance, no investigation happened, no questions were asked to the relevant authorities!”He added that in the closure report, the statement of potential accused persons was recorded and accepted, without thorough investigation. “Is this how investigations should be conducted?” Sibal asked rhetorically.
He further highlighted the obvious lapse in conduct by then DGP, PC Pande (2006) who was earlier Commissioner of Police, Ahmedabad in 2002. Pande had access to all the evidence but failed to hand these over to the SIT, investigating the matter till 2011 when further investigation was ordered. “Mr. Pande had the material with him right from the time of the violence in 2002. He gave the material only to the SIT in 2010. We had to come to this court [supreme court] to get all these aspects properly investigated. A petition had to be filed in court and these documents were handed over only in 2010. Nobody has investigated as to why he did not hand over the material sooner. He didn’t hand it over because clearly, he did not want the SIT to investigate these documents, a SIT appointed by the Supreme Court. There is no other explanation,” Sibal told the court.
Sibal reiterated that PC Pande was never questioned as to why he did not hand over any evidence, documents, to the Magistrate and the SIT in the beginning. He contended, “This shows complicity, he had all police records, all control room records…why didn’t he hand it over? Was he trying to protect someone, this needs to be open to investigation. This is a very serious matter. How can he withhold information? His explanations were accepted. Finally, when he handed over the documents, it was not analysed by the SIT and that is the basis of my protest petition [filed in 2013]”.
The court, at this point interjected and said, “Going backwards into the history of 2009 and 2010, may not help us. Closure report was submitted by the SIT, so let us see what was left out by the SIT in their closure report as mentioned in your [petitioners] protest petition. If we move backwards, we will be under the sea. There are so many volumes of documents.” Counsel Sibal quipped back, “We are already under the sea,” but proceeded to point out gross lacunae in the SIT’s closure report.
Kapil Sibal further referred to the Tehelka sting operation that exposes the government authorities’ laxity in management of the law and order situation in the state of Gujarat, which was also ignored by the SIT during the investigation. “The transcripts recorded in the Sting Operation (Operation Kalank, October 2007) have been authenticated by the CBI following an order of the NHRC. Still no investigation happened, these fellows [right wing members] have admitted how there was a build up, arms and bombs were distributed, how they massacred people, still the magistrate doesn’t consider it, the high court doesn’t consider it. The explanation of the accused who participated in the sting, is that they were given a script and they read out from it,” Mr. Sibal informed the court. The SIT, appointed by this court has merely accepted this explanation by potential accused and left it at that, he added.
He then pointed out that this sting was relied on by the Special Investigation Team (SIT) in the Naroda Patiya massacre case, which took place on February 28, 2002, allegedly killing close to 100 Muslims, but was completely ignored in the Zakia Jafri matter. Conspicuously, the same SIT –the prosecuting agency there—even called the person responsible for the Sting Operation as a witness; but here when it comes to wider conspiracy, they have let the matter lie.
He then referred to some witness statements that were not taken into account by the authorities but was never considered. The transcript from the meeting with one Anil Patel, who was the Vibhag Pramukh, Sabarkantha district of Vishwa Hindu Parishad (VHP), was referred to by Kapil Sibal. In his statements, Patel had said that maximum number of FIRs were filed in Sabarkantha, Gujarat, where not even one Muslim home was spared. On February 27, 2002, he said that he was asked to inform the families of the people who died in the Godhra train incident and that he was willing to take action against the Muslims. He had also stated that the VHP activists had decided that they would burn all Muslims (including children) in the district. “None of this was dealt with by anybody. So, houses were burnt in Dhansura district, 126 properties were destroyed. In the entire district there was only one village in which 75 percent of Muslims didn’t return. This is on record but nothing has been done about it,” said Kapil Sibal.
Mr. Sibal further highlighted the lapse by the police in Gujarat, allowing right-wing leaders to take charge of the situation that led to deterioration of public order in the State. He contended that the tragic Godhra killings were used to justify the pre-orchestrated mass carnage that enjoyed political sanction and that the proof of this was recorded by the Citizens Tribunal headed by Justices VR Krishna Iyer, PB Sawant and Hosbet Suresh.
Sibal argued, “My lord a private person was handed over the bodies of persons who were killed and burnt in the train incident. He was Jaydeep Patal, a VHP functionary. Patel had said that it was unanimously agreed that the bodies should be handed over to him. Somebody needs to be prosecuted for this. By the time the bodies reached Ahmedabad in a truck, 3,000 people had already gathered there. Section 144 curfew of the CrPC was still not in place. This calls for serious investigation. How were these bodies handed over to Jaydeep Patel? Under police escort the bodies were taken in trucks, why was this allowed? Contrary to law and procedure, how were dead bodies handed over to a private person like Patel in Godhra? How did people come to know that bodies were arriving in Ahmedabad? The police could have not informed me, I don’t know who did it!”
Sibal further alleged that SIT ignored the fact that I.K Jadeja and Ashok Bhatt, were present in the Police control room during the violence. “Even the local police would not investigate like this. One of them [I K Jadeja], an Urban development minister in the BJP government that time, told the SIT that he never did anything and that was accepted by the SIT,” he said, asking, “Is this was the fashion of investigation that was carried out, why didn’t the Magistrate take cognisance and not direct further inquiry? What is the use of an urban development minister in the police control room?”
“We have faithfully investigated everything”- SIT
Former Attorney General Mukul Rohatgi, appearing for the SIT, interjected to say that the SIT investigated the matter faithfully without any lapses. He said, “The entire protest petition’s allegation is directed against the then Chief Minister of Gujarat. The allegation is that the then CM allowed the mayhem for 72 hours, Mr. Sibal doesn’t want to argue on this point, if he doesn’t want to argue on this, then they have no case!”
Sibal vehemently opposed this argument and said that there were “serious acts of violence, massacre, conspiracy and murders that have not been investigated”. He further said that he was not interested in individual acts and that he was only interested in the acts of the state and that, “the manner in which the SIT investigated the matter was far from established practices. Despite his [Mukul Rohatgi] persuasion, I will not travel into muddy waters.”
“SIT did not do anything”- Mr. Sibal
Senior counsel Sibal referred to the Convenience Compilations filed by the petitioners, and multiple volumes of documents to point out that at multiple locations calls were made for ambulances but they weren’t answered. He contended, “Who’s to investigate this? We’re in 2021, this happened in February, 2002. For 19 years, no one has asked this question. Which accused will say I gave instructions to do things. This has to be investigated. If you accept the accused’s story then might as well not investigate at all. What did the SIT do? Nothing! Nobody was arrested or interrogated.”
Mr. Sibal lastly argued that this is not a civil issue and that even though the SIT gathered information, it failed to apply regular standards of investigation to such a serious matter. The Petitioners are expected to file four more Convenience Volumes of documents to establish the lapse on the part of the SIT after which arguments will resume on November 10.
The order may be read here: