18, Mar 2014

Survivor of the 2002 carnage and widow of eminent Parliamentarian
Smt Zakia Ahsan Jafri has filed a Criminal Revision Application
before the Gujarat High Court challenging the Order of the
Magistrate rejecting her Protest Petition seeking to arraign
powerful accused Narendra Modi, chief minister Gujarat and 59 others
on charges of criminal conspiracy, abetment etc to commit mass
murder, arson and rape and also tamper with evidence and destroy
valuable records of the Gujarat home department. The Revision appeal
was filed on Saturday, March 15, 2014 and will come up for hearing
on March 20, 2014.

The applicant Zakia Jafri also prays for the rejection of the
closure report of the Special Investigation Team (SIT) dated
8.2.2012. The Magistrate had, on 26.12.2013 rejected the Protest
Petition filed by Smt Zakia Jafri, assisted by Citizens for Justice
and Peace, on 15.4.2013. Substantive arguments seeking to
establishing strong suspicion of a conspiracy committed at the
highest level were made by the PetitionerÂ’s advocates and detailed
Written and Oral Submissions submitted on 25.9.2013.

The Criminal Revision Application that runs into about 540 pages
laid out substantive grounds for rejection of the Order of the
Magistrate BJ Ganatra dated 26.12.2013. At the outset it points out
the double faced role played by the SIT once the matter stopped
being monitored by the Supreme Court and was completely handed over
to the Crime Branch, Ahmedabad.  In the substantive grounds laid
down in the Criminal Revision Application to challenge the Order of
the Magistrate are the following:-

The Metropolitan Magistrate committed a fundamental
error in law and on facts in failing to exercise his jurisdiction.
By not dealing with the substantive arguments laid down by Smt
Jafri in written and oral submissions, the Judge has simply
accepted the contentions in the closure report with a
non-application of mind.

That the Learned Metropolitan Magistrate has failed
to consider the following material that was put to establish
prima facie the involvement of Accused No. 1 in serious crimes
of conspiracy and abetment and which was sufficient to establish
his involvement in the conspiracy and abetment of crimes of
murder, arson and rape:

(I) Evidence on phone call contact between A-1 and Co-Conspirators
as soon as news of Godhra Incident occurred;

(II) Failure to take preventive measures and instead support a Bandh,
allow post mortems of gruesome burned bodies in the open and, in
short, allow the streets of cities and villages to be taken over by
rampaging mobs;

III) Illegal Instructions were issued to high level policemen and
bureaucrats to not follow the Law and on the next day Cabinet
Ministers were posted in control rooms to ensure that these illegal
instructions were carried out;

IV) Destruction of Key records of the CMO and Home Department and
tampering with others to obstruct the cause of Justice;

V) Allow rape, murder and arson to be the Weapon through which
unlawful acts are allowed and subversion of justice follows
That the Learned Metropolitan Magistrate has either
not referred to the above facts which were put together in order
to prima facie establish conspiracy or has distorted the
sequence by going to the extent of not treating the statement of
Sureshbhai Mehta, Haren Pandya and Justice Sawant and Justice
Suresh as statements under 161 Cr.P.C (statements related to the
Controversial meeting of 27.2.2002)  It is shocking that if a
statement is made under 161 Cr.P.C. which prima facie
points at conspiracy has been brushed aside by the Magistrate, by
evaluating such statements as if he is conducting a Trial and on
that basis passing a Judgment. Time and again, the HonÂ’ble Supreme
Court has held that the Learned Metropolitan Magistrate is not
supposed to evaluate the Section 161 Cr.P.C. statements as
statements made during a criminal trial and if he does so he
commits a jurisdictional error. In spite of the Petitioner citing
Judgments on the said legal positions and explaining that the
mistake that was mischievously committed by the SIT should not be
repeated, the Learned Metropolitan Magistrate fell into the same
trap and neither analysed nor discarded or appreciated the
statements as if he was conducting a trial which was beyond the
scope of his jurisdiction at this stage.
That
the Learned Magistrate erred in holding that
neither Sanjiv Bhat nor Haren PandyaÂ’s presence at the meeting on
27.2.2002 could be believed. The Learned Magistrate erred in
believing the versions of the other persons present at the meeting
when they were themselves accused in the present case and could
not be expected to tell the truth. The Learned Magistrate ought to
have accepted the observation of the Amicus Curie that the
matter needed to be tested in the trial. In fact the Learned
Magistrate completely ignored the contradictions in the statements
of various accused regarding who was present and what was spoken
at the meeting. The Learned Magistrate also erred in not relying
on the statement of Sanjiv BhatÂ’s driver. In fact the Magistrate
ought to have drawn adverse inference on the basis of the missing
log book of the car. The Learned Magistrate also completely
ignored the statement of Mr. Haren PandyaÂ’s father recorded under
Sec. 161 Cr.P.C. He also failed to appreciate the true
significance of the statement made by Mr. Haren Pandya before the
Concerned Citizens Tribunal before retired judges of the High
Court and the Supreme Court. The Learned Magistrate also failed to
appreciate the statements given to the SIT in this connection by
two retired judges: one of the Supreme Court and another of the
High Court.  The Learned Magistrate failed to draw obvious
conclusions as to the reasons behind why, at such a crucial law
and order meeting after the tragedy of the kind that had taken
place at Godhra, no minutes were maintained of the Proceedings as
is Standard Operational Procedure (under the Gujarat Police
Manual) and accepted practice. It is also shocking that the
statements of Sanjiv Bhatt could have been discarded at this
stage.
That the Learned Magistrate ought to have held that
at least three witnesses i.e. Sanjiv Bhatt, R.B. Sreekumar and
Rahul Sharma, all serving officers had all testified (given
evidence/statements) so as to bring out a case of conspiracy and
involvement of the accused in various offences. The Learned
Magistrate ought to have realized that the veracity of these
witnesses could only have been tested during a criminal trial and
there was no justification to disbelieve them at this stage.
That the Learned Metropolitan Magistrate has
committed a serious error of not looking into the prima facie
material for taking cognizance and issuing notice not only
vis-a-vis Narendra Modi (A-1), which is mentioned above, but also
with regard to the other accused against whom also prima facie
material was available for taking cognizance and issuing process.
The facts concerning Narendra Modi- A-1 have been outlined above
but as far as other Accused are concerned the entire material has
been put in the annexure which will be referred to at time of
arguments.
That a fundamentally wrong approach and a failure
in exercising Jurisdiction by the Learned Metropolitan Magistrate
becomes clear from the finding of the Learned Metropolitan
Magistrate that he cannot look into larger conspiracy. The Learned
MM ought to have seen that the HonÂ’ble Supreme Court had made it
clear in it Order dated 12.9.2011 that it was for the Learned
Metropolitan Magistrate to decide/adjudicate further, on the
question of taking Cognizance in accordance with well established
principles of law and moreover the HonÂ’ble Supreme Court had made
it clear that none of the observations of the HonÂ’ble Supreme
Court will come in the way of deciding the said question. It was
therefore, left solely upon Learned Metropolitan Magistrate to
take a decision by applying legal provisions and exercising his
Jurisdiction independently to consider whether prima facie
any case is made out for taking cognizance. By making the above
and other observations the Learned Metropolitan Magistrate has
virtually abdicated his duty and thus failed in exercising the
jurisdiction  vested in him.
That the Petitioner had argued that the SIT had
failed in discharging its duty of conducting a free and fair
Investigation in as much as, wherever further Investigation was
required, it has left that area uninvestigated by observing that
sufficient evidence has not come on record. Again the law as
settled in this regard is that the duty of the Investigating
Agency as well as the duty of the Court is to find out the truth
regarding commission of an offence and for that purpose the Court
can direct further Investigation under 156(3) of Cr.P.C. and
173(8) Cr.P.C. As far as the Investigating agency is concerned, it
is always open to it to file supplementary charge sheets at any
stage. The Petitioner had therefore submitted that further
Investigation was required as the SIT had not acted impartially
and for that purpose an independent investigating agency be
entrusted the job of conducting further investigation and filing a
supplementary charge-sheet. The Learned Metropolitan Magistrate
though was apprised at length and in detail of this gross carnage
which was a part of the larger conspiracy, he ought not to have
allowed the offenders to go scot free by observing that sufficient
material is not available on record to take cognizance and issue
process. The seriousness of the offences which took place in
different parts of Gujarat is unparalleled and it was grossest
against society somewhat akin to genocide and, therefore, it was
the duty of the Learned Metropolitan Magistrate that even if there
s lacunae purposely left by SIT, to direct further investigation
so that the truth behind the larger conspiracy could be
established. The Learned Metropolitan Magistrate has completely
failed in discharging his duty and establishing faith of the
common man in the Criminal Justice System of the Country.
That the Learned Magistrate erred in holding that
further investigation directed by the Supreme Court was only in
respect of the Gulberg Case. This was a deliberate and mischievous
confusion created by the SIT, which was clarified in the Order
dated 7.2.2013. In any case, the complaint by the Petitioner
constituted independent offences for investigation and were so
treated by the HonÂ’ble Supreme Court.
The Learned Magistrate failed to appreciate the
clearcut directions of the HonÂ’ble Supreme Court in SLP (Cr.)
8989/2012 wherein the HonÂ’ble Supreme Court had ruled that the
statements with signatures that are a part of the investigation
papers of the SIT should be treated as Sec. 161Cr.P.C. statements
following the Orders of further investigation under Section 173 of
the Code of Criminal Procedure;
The Learned Magistrate erred in holding that the
Protest Petition itself could not be treated as a complaint.
The Learned Magistrate completely ignored or failed
to apply judicial mind to the fact that there was overwhelming
evidence collected by the SIT itself to send the accused to trial.
The Learned Magistrate failed to understand the
principles of command responsibility as prescribed under the
Indian law and also failed to apply the correct principles under
the provisions of the Indian Penal Code concerning the law on
conspiracy, aiding and abetment and hate speech.

The entire team of the Citizens for Justice and Peace
has contributed to the effort since 2007. The team of advocates of
the Supreme Court and High Court including Sanjay Parikh, MM Tirmizi,
Mihir Desai, Aparna Bhat, Ramesh Pukhrambam and Secretary, CJP,
Teesta Setalvad are the active members of this legal team.

ZAKIA REVISION APPLICATION 150314

Trustees:

I.M. Kadri,
Nandan Maluste
Teesta Setalvad

Cyrus Guzder        Javed Akhtar
Alyque Padamsee
Anil Dharker          Ghulam Peshimam
Rahul Bose

Javed Anand         Cedric
Prakash