All this material raises suspicion of offence: Petitioners in Zakia Jafri SLP SIT used sting op tapes in other trials but disregarded in closure report

09, Dec 2021 | CJP Team

The Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar heard the final submissions of both the petitioners as well the respondents in the Special Leave Petition (SLP) filed by Zakia Jafri and Citizens for Justice and Peace (CJP), where petitioners submitted evidence of how the Special Investigation Team (SIT) probing the Gujarat genocide of 2002, had botched up the investigation by failing to examine multiple instances that pointed towards a larger conspiracy.

At the December 8 hearing, the petitioners took the court through all the such material once again to reiterate what the court needed to look at while exercising its jurisdiction. During yesterday’s hearing Senior Counsel Mr. Kapil Sibal, appearing for the petitioners, offered rebuttals against the scathing remarks made by the State government against petitioner no.2.

On December 9, the final day of the hearing, Sibal continued his submissions about petitioner no. 2, Teesta Setalvad and her organization, Citizens for Justice and Peace (CJP) explaining the body of work they are involved in including the citizenship related work in Assam, forest rights, grassroots fellow program, flood relief, medical aid, relief work during the Covid pandemic and so on.

CJP was born right after the Gujarat 2002 carnage to serve as a tool to aid in the quest for justice for victims and survivors. Our aim is to take all the cases to their logical conclusion in the courts so that there can be closure and healing. CJP has played a key role in putting together the incredibly challenging investigative ground work in the Zakia Jafri case. CJP through its Secretary Teesta Setalvad is also the second petitioner in the case after Zakia Jafri.

Sibal remarked, “To paint us as anti-Gujarat is unfair. Many FIRs are filed against us because we tried to seek justice for Gujarat victims and we got relief in every court. Other than seeking justice she has no agenda.” Sibal even read out a judgment of the Supreme Court which had expunged the scathing remarks made by the Gujarat High Court against Setalvad.

In Teesta Setalvad v. State of Gujarat 2004 10 SCC 88, the Supreme Court had expunged the remarks made by the Gujarat High Court against her:

According to the appellants, being human rights activities, they wanted to find out what is the truth and in the process, though after conclusion of the trial, it was reliably felt by tghem on the basis of verifications made the truth has been the resultant casualty. they had made detailed study of the situation and also met the riot affected persons. they helped the victims in lodging FIRs and setting up legal aid clinics for the affected victims… Certain persons, who were not happy with the verdicts rendered by the Trial Court in the case commonly known as Best Bakery case also approached the appellants and they helped them in obtaining legal assistance. Unfortunately the High Court, while dealing with the appeal filed by the State of Gujarat, against the acquittal of the accused persons and other connected cases made some caustic observations casting serious aspersions on their bonafides and has used strong words like super investigators, anti social and anti-national elements.

  1. In view of the aforesaid we direct that the observations of the High Court, as against the appellants quoted above shall stand expunged and deleted from the judgment of the High Court, and consequently must be treated as having never existed or being part of the High Court judgment.

Suspicion of offence

Sibal cited another judgment to indicate that the Magistrate, if he suspects that an offence has been committed, can take cognisance under CrPC.

In Abhinandan Jha & Ors vs Dinesh Mishra 1967 3 SCR 668, the court held thus,

“There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under S. 190(1)(c) of the Code. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be in- voked even where persons individually aggrieved are unwilling or unable to prosecute. or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence.”

Reference to SIT submissions

Sibal responded to the submissions made by SIT, asking how they disregarded the Tehelka sting operation tapes despite having used them in trials as prosecution evidence? It was on the basis of this very evidence that Babu Bajrangi was convicted in the Naroda Patiya case.

Larger conspiracy

The petitioners submitted a statement before the court contending that a larger conspiracy involving individuals whose undisputed extra-judicial confessions are on tape, read along with inactions of officials demonstrated by undisputed documents, should have been investigated by the SIT, which could have established a larger conspiracy. The submission is that the SIT did not investigate the larger conspiracy, but limited itself to matters in dispute relating to a meeting of February 27, 2002.

It was further submitted that undisputed evidence on record points to a larger conspiracy which appears to have involved bureaucrats, politicians, public prosecutors, Vishwa Hindu Parishad (VHP), Rashtriya Swayamsevak Sangh (RSS), Bajrang Dal and members of the State political establishment. It is this conspiracy that is not investigated by the SIT.

Petitioners’ conclusions

Sibal concluded by thanking the bench for its patience and kindness, “Ultimately your lordships have to decide whether all this material does not raise any suspicion that any offence has been committed. Then you may accept closure report. If not, then your jurisdiction is wide enough.”

Respondent’s final submissions

Senior Counsel Mukul Rohatgi came before the bench to retort a few claims of the petitioners. He stated that Babu Bajrangi was not convicted on the basis of the Tehelka tapes, which Sibal contested towards the end of the hearing, saying this is a false claim.

Rohatgi also said that the petitioners were wrong in saying that Anil Shankarbhai Patel’s statement was not recorded by the SIT. He also retorted to the submission that the petitioners never said that bodies were paraded from Godhra to Sola Civil Hospital.

About treating the Protest Petition as a complaint, Rohatgi said that the petitioners have argued before the Magistrate that forget the complaint and treat the Protest Petition as a fresh complaint.

He also raised the allegation of a different complaint filed before the Supreme Court in this SLP.

He then referred to the submission of the petitioners that the Nanavati Commission report cannot be relied upon, which Rohatgi accepted and said that the SIT closure report does not refer to the Commission’s report and that instead it is the complaint that relies upon material of the Commission and without that material, the complaint would fall apart.

In his final submission, Rohatgi stated that nobody has raised a finger against the SIT except the petitioners “now 20 years later you want further investigation, when trials have been completed, appeals are pending before the High Court and Supreme Court.”

About the statements being statements under section 161 of the CrPC, Rohatgi said, “Only a police officer can record statements under section 161 CrPC, hence when we took statements we took signatures. They were deemed to be section 161 statements by the Supreme Court in 2013. We are not on the correctness”.

He concluded saying, “I think what the Magistrate and High Court have done should be endorsed by this court otherwise this will keep going on for the ulterior motives of Petitioner no.2”.

The hearing in this matter has concluded.

Related:

They want all this material to be effaced from the nation’s memory: Petitioners in Zakia Jafri SLP

Zakia Jafri SLP: Petitioners argue there was evidence for Magistrate to issue process

Zakia Jafri SLP: SIT argues if investigation is ordered, some acquitted person will be prejudiced

 

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