Arguments in Zakia Jafri case implicating top netas, cops and babus in 2002 carnage to conclude tomorrow in Gujarat HC

27, Apr 2017

The tortuous round of proceedings in the famed Zakia Jafri case wound down to the final arguments today, April 27 in the Gujarat High Court; after tomorrow it’s the Day of Judgement

The Zakia Jafri case is an attempt to establish criminal and administrative responsibility for the mass and targeted crimes that took place in Gujarat in 2002 (from February until August 2002).It is the case of the complainant that the failures by the political and administrative machinery were not just departmental lapses but were criminal offences in respect of which each of  the accused needs to be criminally prosecuted. The complainant an her legal aid team has galvanised 7122 pages of direct evidence from the investigation papers and garnered these to make a strong argument to issue process (charge sheet) the powerful accused. The complaint seeks to lay out evidence to prove that the approximately 300 incidents that broke out all over the state of Gujarat and continued for over six months in 2002 (till at least the visit of the CEC Lyndoh who did not allow early elections) took place as the result of this wider conspiracy.

Arguments for the complainant, Zakia Jafri began in the Gujarat High Court on August 4 2015. It had taken over two years for translations to take place in the High Court. Thereafter there have been about eight hearings in all of two days each and today is the last batch of hearings before the judge closes the case and delivers her judgement. Justice Sonia Gokhani is hearing the matter in the High Court. Twenty four volumes of annexures compiling this direct evidence that runs into 7122 pages have been filed by the petitioner in the High Court. The actual criminal revision is itself 540 pages long.

Senior counsel Mihir Desai, MM Tirmizi, Mihir Joshi appeared for the complainant Smt Jafri assisted by the civil rights group Citizens for Justice and Peace (CJP). Tomorrow will be the day for the Special Investigation Team, formerly head by ex-CBI head RK Raghavan to respond. Smt Jafri filed a criminal revision application in the Gujarat High Court (205/2014) on March 15, 2014 after Magistrate Ganatra rejected the Protest Petition filed by her on April 15, 2013. The magistrate had rejected the petition after rigorous hearings over 25 days conducted before him from April to September 2013. He delivered his judgement on December 26, 2013.

Detailed Background of the Case
Zakia Jafri filed a Complaint dated June 8, 2006 concerning various aspects of the events which took place in 2002 in Gujarat. The Complaint was made to various agencies which did not take note of the same and hence a Petition was filed in Gujarat High Court which was dismissed on November 2, 2007 against which an SLP was filed. Supreme Court asked a Special Investigative Team to investigate and an amicus was appointed. Finally SIT stated that the investigation was complete and therefore on September 12, 2011 the Supreme Court stopped monitoring the matter and asked SIT to file its Final Report before the Metropolitan Magistrate at Ahmedabad. SIT filed final report before the Magistrate on February 8, 2012 being a closure report and the Petitioner filed a Protest Petition that was over 1,000 pageson April 15, 2013. (The Judgment of the Magistrate accepting the Closure Report was given on December 26, .2013. This Judgment is under Revision).

The complaint of Zakia Jafri runs into about 119 pages making allegations against 62 persons (political functionaries, bureaucrats, police and private individuals). The allegations pertain to conspiracy, abetment, negligence, failure to perform duties by public servants and hate speech. Three Reports were filed by the SIT before the Supreme Court. The first  Report was filed by by AK. Malhotra dated May 12, 2010; the second report by Himanshu Shukla (Crime Branch, Ahmedabad) dated November 17, 2010 and the report styled as report u/s 173 (8) (after further investigation was ordered by the Supreme Court on March 15, 2011) was dated April 24, 2011. During this historic process Raju Ramchandran, Senior Advocate Supreme Court, who had been appointed Amicus Curiae in the case filed two reports- the first was  dated January 20, 2011 and and the second one dated July 25, 2011. The Supreme Court was faced with a piquant situation when the investigation team appointed by it (SIT) came to the conclusion that there was no material to prosecute the powerful accused whereas the amicus appointed by it opined to the contrary. The first accused in the complaint is the then chief minister of Gujarat, Narendra Modi. The final judgment of the Supreme Court came to be passed on September 12, 2011and the Closure Report was filed on February 8, 2012.

The complainant Zakia Jafri was not even called by the investigating agency as is the norm or requirement under law, despite her repeated communications to the SIT between September 2011 and February 2012. All the investigation papers were handed over to the petitioner only after a further order of Supreme Court dated February 7, 2013. Before that senior counsel had to make several arguments before the Magistrate before getting access to 23,000 pages of the investigation papers in April 2012. After this, on 15.4.2013 the Protest Petition was filed.

The SIT in its Closure Report has treated the Complaint as having made 32 allegations which have been separately dealt with and negated. Magistrate has in his Judgment upheld the findings of the SIT in respect of each of the 32 allegations.

In the course of the arguments today, the petitioners have argued that apart from the 32 allegations crystallised by SIT there are certain other allegations which have been totally ignored by SIT and also by the magistrate in his Judgment which is under challenge.

Senior Counsel from Mumbai Mihir Desai making arguments today argued that the issue before the Court is whether the events after the Godhra carnage were
(a) spontaneous outpouring of people;
(b) which could not have been anticipated, prevented or controlled
or  it is likely that
(a) they were part of a conspiracy which was hatched by certain people in power politically and administratively to create an environment whereby targeted violence was allowed to be unleashed on the minority community where hate speeches and hate writing were continually deployed;  and
(b) in carrying out this conspiracy or otherwise certain public servants including Ministers, police, bureaucracy or other individuals aided and abetted the events.

He strongly argued that it was the petitioners case that those named in the Complaint are guilty of the following offences:

1. Conspiracy (Sections 120A, 120B, 34, 149 of IPC and Section 10 of Evidence Act)
2. Abetment (Sections 107 to 120 of IPC)
3. Failure to perform duties by Public Servants (Sections 166, 167, 217, 218, 221 of IPC)
4. Criminal Negligence (Section 304A of IPC)
5. Hate Speech (Sections 153A, 153B, 504 and 505 of IPC)

 

1. Conspiracy

It is not the case of the Petitioner that the train burning was a result of conspiracy by the accused. The conspiracy was to ensure that what happened in Godhra was not confined to Godhra but taken to other parts of Gujarat which allowed violence to take place. The conspiracy was to ensure that if an incident of communal violence (such as Godhra) takes place there is sufficient hatred generated that violence will explode all over the State.

The counsel further argued that the conspiracy was at four levels:

1. To generate and allow to be generated and deepen feeling of hatred towards a particular community prior to the train incident:

The evidence for this include (1) IB Messages and (2) Statements made in Sting operation (3) Hate Writing through VHP Pamphlets and Hate Speeches of the BJP and VHP Leaders on television and in the media

2. The second component of the conspiracy involved the actions from the time of train burning in the morning of 27.2.2002 till the mass violence started on 28.2.2002.

This involves the following components:

1. Telephonic conversation by A.1 with VHP leader
2. Statement issued in the Assembly
3. Statement of A.1 while in Assembly
4. Post Mortems conducted in the open;
5. Handing over the dead bodies in Godhra to a private individual
6. Parading of the bodies from Godhra to Ahmedabad
7. Violence in Sabarmati express between Godhra and Ahmedabad
8. Meeting held at the residence of the Chief Minister on the night of 27.2.2002 where effectively the police were asked to go slow on riots which start as a response to the train incident
9.  Mobs Gathered at the Sola Civil Hospital who took out Funeral Processions in Ahmedabad and Districts Parading the Dead Bodies of the Godhra Train Victims

Besides the counsel argued that
No Action for Preventing Violence

1.   Bandh call supported
2. No preventive arrests
3. No curfew imposed till very late
4. No Army deployed till very late

 

3. The third component played out  DURING VIOLENCE

1. Police abdicating duty as evident from

• Firing episodes
• Not responding to calls
• Not imposing curfew
• Widespread demolition of mosques, etc.
• Fire brigade access (non response of the Police to Frantic Calls received by the Fire Brigade Messages)

 

2. Army was called in late and deployed even later
3. Ministers placed in control room

The fourth component was Subversion of Law after Violence

1. Non filing of FIRs and false FIRs filed
2. No relief camps set up/ Hardly any provisions given for relief camps  and no rehabilitation of victims
3. Public Prosecutors of certain ideological bent appointed to sabotage the cases
4. Illegal instructions given by the politicians to the police and bureaucrats
5. The police who acted against the rioters punished while those who allowed the carnage favoured
6. False reporting to Constitutional Authorities
7. Destruction of and Tampering with evidence
8. Misleading the NHRC, Election Commission, etc. And even the Government of India (on scale and extent of violence)

4 Types of Conspirators

1. Section of political estalbishment
2. Section of the Bueracracy
3. Section of the Police
4. Some private organisations/ individuals

8. Abetment at Two Levels

1. (a) Those who were part of conspiracy

(b) Those who were not part of the conspiracy

2. (a) Those who abated by actions

(b) Those who abated by omissions

9. Public Servants Liable at the Following Levels

1. Violating the law
2. Failure to perform duty
3. Criminal Negligence
4. Command Responsibility

10. Hate Speech

1. Those who are directly involved in hate speech
2. No action by police or political establishment whose consent and action was required
3. Attempt to thwart investigation into hate speech

11. Evidence

1. Statements of R.B. Sreekumar
2. Statement of Rahul Sharma
3. Statement of Sanjiv Bhatt
4. Statements of Justice Sawant and Justice Suresh
5. Statements of former chief minister Gujarat Suresh Mehta and Vithalbhai Pandya, father of Haren Pandya
6. IB Messages (SIB Messages-State Intelligence Bureau Messages)
7. Phone records
8. Diary (Confidential Contemporary Register)of Sreekumar
9. Sting Operation by Tehelka
10. Reports of Constitutional Authorities
11. Hate speeches (Texts and Videos)
12. Judgments of various courts concerning riots

The Criminal Revision Application (CRA 205/2014) deals with the complete failure of the Supreme Court appointed SIT to adequately probe the evidence on the above lines despite there being substantial primary evidence that points to the need for a prosecution.

The overall context also cannot be lost sight of:

1. 2 trials i.e. of Bilquis Bano and Best Bakery transferred out of Gujarat by the order of Supreme Court and in both cases the Mumbai Courts have convicted offenders. For the first time NHRC itself decides to approach the Supreme Court
2. NHRC Reports dated 1.4.2002 and July, 2002 (Annexure L)
3. Election Commission Report (Annexure L)
4. Editors guild  Report (Annexure N)
5. 8 trials stayed by Supreme Court at the instance of NHRC and subsequently SIT appointed by Supreme Court with directions to appoint special judges and special public prosecutors for these cases.
6. 2000 Cases ordered to be reopened by the Supreme Court
7. Demolished religious places directed to be rebuilt by the Gujarat High Court (Annexure L)
8. For the first time Chief Secretary  and DGP (Chakravarthi) are  personally summoned and examined by the Supreme Court in open Court on 19 September, 2003 (p.566 Ann B)
9. A Tribunal headed by 2 retired Supreme Court judges finds that there was conspiracy, abetment and hate speech.

Substantive judicial precedents were garnered by the legal team in the course of arguments. In the Supreme court between 2008-2010 senior advocate, Sanjay Parikh and Kamini Jaiswal assisted by Aparna Bhat and Ramesh Pukhrambam had appeared for Zakia Jafri and the Citizens for Justice and Peace (CJP).

Within eight days of the rejection of the protest petition the crime branch of the Ahmedabad police registered an FIR against Tanvir Jafri, Salim Sandhi, Firoz Gulzar Pathan, Javed Anand and Teesta Setalvad alleging misappropriation of funds. This FIR and subsequent intimidation in refusing to grant anticipatory bail to the office bearers of CJP (Setalvad and Anand) have been seen as brazen attempts by the state to prevent the appeal against the rejection of the protest petition.

Related Articles:

1. The Importance of the Zakia Jafri Petition Hearings to Resume on April 6-7, 2016
2. The End of Impunity: Gujarat 2002

Credit: Sabrangindia https://sabrangindia.in/article/arguments-zakia-jafri-case-implicating-top-netas-cops-and-babus-2002-carnage-conclude