The Special Investigation Team (SIT) concluded its submissions in the Zakia Jafri – CJP Special Leave Petition (SLP) before the bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar on December 2, 2021. The SIT, represented by senior counsel Mukul Rohatgi, submitted that the Magistrate had applied its mind in considering the closure report and the protest petition of the petitioners, and had given a sound judgement. The hearing will continue on December 7
Trial court order and findings
Rohatgi highlighted that although the petitioners are not urging the meeting of February 27, 2002, before this court, which is the allegation no.1, it is a major part of the Zakia Jafri complaint of June 8, 2006 as well as the SIT’s report. The bench asked Rohatgi to read through allegation wise in the trial court order just as he had done for the SIT report. Rohatgi read out that allegation no. 2 was the issue of parading of dead bodies from Godhra as well as the Post mortems done in the railways yard; he said that the trial court did not find any criminality in this issue.
He stated that he was reading out the trial court order to show that the order shows complete application of mind and that to say it didn’t, would be travesty of justice. Further with relation to allegations that relied upon the affidavits filed by RB Sreekumar (then ADG – Intelligence) were not reliable as mentioned in the SIT report, findings of Nanavati Commission as well as the trial court held the same. It was also argued that Sreekumar was posted in Ahmedabad as ADG (int) in April 2002 and during February, 2002, he was in the arms unit. “(there are) 20 pages for each allegation,” Rohatgi said. “The court has done much more in exercising jurisdiction in accepting closure vis-s-vis a protest petition,” he added.
Further ahead however, as each allegation was sought to be pointed out, the bench noted that the Magistrate had not dealt with each allegation like the SIT has. The Trial court order also finds that there was no violence until 1 pm and when late Ehsan Jafri fired at the mob surrounding his house, the mob got infuriated, and mayhem ensued which caused Jafri’s death and violence began.
Rohatgi pointed out that the trial court believed the SIT’s findings that the army was requisitioned in time on February 28, 2002.
The trial court also refused to accept the SIT’s submission that there was a difference between ‘preliminary enquiry’ and ‘further investigation’ as they had deemed that what the Supreme Court had directed them to do amounted to ‘preliminary enquiry’ into Zakia Jafri’s complaint. The trial court also did not accept SIT’s submission that no more accused than arraigned in the initial complaint could be added by the complainant in the protest petition.
Further, the trial court order stated that the complaint does not refer to the Tehelka sting operation at all. However, the bench pointed out that the complaint was filed in 2006, while the Tehelka sting operation was published in 2007.
The court also sought a Gujrati copy of the order since there were many references that were unclear in the translated version and the bench commented that the order itself seemed incoherent in some parts.
The trial court also said that it would not treat the protest petition as a fresh complaint because the Supreme Court had asked the SIT to ‘look into’ the complaint and the SIT report was accepted by the Supreme Court then.
When dealing with the larger conspiracy issue, the trial court stated that had there been conspiracy, the army would not have been called within 2 hours.
Question of law
The bench asked Rohatgi to assist the court on a question of law that, “A person has given a complaint and SIT has examined, investigated and placed a closure report. When trial is going on and one of the issues framed is of larger conspiracy which subsumes this allegation (complaint) but the person (complainant) appears before trial court and does not invoke the allegation. When such substantive proceedings are going on, you had the opportunity, you could have asked before (trial) court. Under law can you have such side proceedings?”
The bench continued, “Otherwise, there is no finality of proceedings; issue of estoppel is there. In criminal justice system even accused has the right of fair trial and finality of proceedings. How do we balance it now? On what principle can it (side proceedings) be permitted?”
To this Rohatgi said that he will present before the bench the legal stand-point but he commented, “If some accused has been acquitted by the court and if again investigation commences, he can be charged again. A man cannot be prejudiced twice.” Rohatgi then read out section 300 of the CrPC which states, “Person once convicted or acquitted not to be tried for same offence.” He also stated that even if some material is found now, the person cannot be tried again.
“She (Zakia Jafri) is not even an eye witness to Gulberg incident. You cannot say I found this report, that report. It is all hearsay. So, she compiled all material of SIT. How can she be privy what happened across the state,” Rohatgi argued.
Rohatgi then cited Vishnu Kumar Tiwari vs The State Of Uttar Pradesh 2019 8 SCC 27 whereby the Supreme Court had held, “In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate.”
Acquitted person cannot be tried again
Continuing his arguments, Rohatgi pointed out the timeline of events. He said that the riots took place in 2002, the complaint was made in 2006. There was no explanation for the delay. Thereafter in 2007, the High Court asked the complainant to file a complaint under section 190 of CrPC but, she (Zakia Jafri) appealed before the Supreme Court which asked the SIT to have a look into her complaint in 2009. The SIT accordingly gave its report in 2010 and in 2012. In 2013 she filed a protest petition and asked the court to treat it as a complaint. “The crime is undergoing a trial from 2002. If you are a witness and privy to the information, you should have filed a complaint as per HC judgement of 2007,” Rohatgi argued.
He then argued the point that a person cannot be jeopardized twice, “How will it impact a person acquitted. Can an investigation be ordered affect acquittal? For people acquitted and no pending appeal they will be jeopardized again.”
He continued about Zakia not deposing about the complaint before the trial court in the Gulberg trial proceedings, “The High Court, in 2007, gave her opportunity to record a fresh complaint. She had the chance in 2010 in trial court as she was the primary witness. She had all the material and added material. She was duty bound as witness to state truth. She breached duty to the court. Now in 2013’s protest petition it is argued that it should be treated as a complaint.”
Rohatgi then invoked the principle of estoppel saying, “Estoppel will be applied apart from her duty to tell the truth to the court. Today you say I will ignore all chances I had and mandate of law to be truthful. I will do as I please and therefore to allow this petition apart from the fact there is no error in courts below, could lead to grave injustice and would be a never ending situation. Had she accepted the High Court 2007 order, both matters could have been combined in 2009, when the stay was lifted (by Supreme Court). The whole thing would have been holistic.”
Rohatgi concluded his arguments by saying that this was not a fit case of invoking the court’s jurisdiction under Article 136 of the Constitution. “Your order could have an impact on all 9 trials and 100s of other cases. The whole criminal justice system will be in a fix. Every judgement will have to be reopened.”
The hearing will continue on December 7.