Incriminating Video Transcripts Yet Untested as Evidence

01, Jun 2016 | Teesta Setalvad

While the nation agitates over the authenticity or otherwise of Videos aired by private television channels pinning blame on students of the Jawaharlal Nehru University (JNU) for allegedly raising “anti-national” slogans on February 9, 2016, certain Video Transcripts tested for their authenticity by a Special Order of the National Human Rights Commission (NHRC) dated March 5, 2008 are still to be used as evidence in a criminal trial.

In October 2007, Tehelka made public a sting operation, Operation Kalank that was aired on the Aaj Tak channel between October 25-27, 2007. In its November 3, 2007 print edition,The Truth in the Words of the Men Who did it. (link http://archive.tehelka.com/story_main35.asp?filename=Ne031107gujrat_sec.asp)

The sensational investigation, probed over six risky months by journalist Ashish Khetan had several components:

Conspirators and Rioters: First hand accounts from the men who plotted and executed the genocide in Ahmedabad, Vadodara and Sabarkantha. This revealed how the mayhem was meticulously planned

Bomb Makers:The VHP and the Bajrang Dal manufactured and distributed lethal weapons across the state, often with the connivance of the police, even before the Godhra incident took place of February 27, 2002

What they said about Modi: Key BJP, RSS, VHP and Bajrang Dal activists speak openly of how Narendra Modi blessed the anti-Muslim pogrom

Role of Police: Shocking accounts of how the guardians of the law colluded with the outlaws to make Gujarat’s horror even worse.

Legal Subversion: How public prosecutors ran with the hare and hunted with the hound, keeping their sympathies strictly for the accused. Government Counsel Arvind Pandya on how he hopes to subvert justice by manipulating the Nanavati-Shah Commission, set up to ascertain the truth.

Dance of Hate: The truth behind Naroda Patiya, the grisliest massacre of 2002. Ahmedabad police’s collusion in the pogrom and its cover-up. Gory details of how former Congress MP Ehsan Jafri was hacked limb by limb at Gulbarg Society, in the words of those who did it.

Godhra Mob Fury Not Terror: How spontaneous mob fury was shown as a premeditated conspiracy by the police who produced fake witnesses by bribing, coercion and torture.

In criminal law, once tested as authentic, these video taped conversations have the status of extra-judicial confessions, in evidence.

At the time, in October 2007, the Zakia Jafri writ petition praying for directions of an FIR to be registered against powerful accused was then pending before the Gujarat High Court. Arguments were over and judgement was awaited. In an affidavit before the Gujarat High Court, Zakia Ahsan Jafri submitted the text and transcripts of the sting operation urging that they be treated as extra-judicial confessions. Her plea was rejected. The author of this article, also Secretary, Citizens for Justice and Peace thereafter approached the Supreme Court of India for an urgent and early hearing of the petition(s) for transfer of investigation pending, in the light of the damning evidence unearthed through the Tehelkasting. The Supreme Court declined the application. The Special Investigation Team (SIT) was appointed only on March 26, 2008.

At this stage, the National Human Rights Commission (NHRC) took suo moto cognisance of the matter, exercised its special powers and directed that Central Bureau of Investigation (CBI) authenticate the voice samples and tapes. This order was passed on March 5, 2008.

In the order the NHRC, full bench consisting of Justice S. Rajendra Babu, Chairperson, Justice Y. Bhaskar Rao, Member, R.S. Kalha, Member and P.C. Sharma, Member, the NHRC said:

“The ghosts of post-Godhra violence in Gujarat never seem to die. On 25th October, 2007, a T.V. Channel “Aaj Tak” telecast a programme captioned “Opertaion Kalank” which brought out more skeletons. The programme included confessions of some persons who implicated themselves and also many state functionaries of Gujarat in the unleashing of violence on the minority community. The revelations bode ill for the future of human rights in the country. Therefore, the Commission which is already seized of the unfortunate episode since 1st March, 2002 in Case No. 1150/6/2001-2002, decided to direct a CBI investigation regarding the authenticity of the tapes and the allegations made therein and vide proceedings dated 5th November, 2007 advised the State Government of Gujarat to communicate its consent for CBI investigation to the Central Government and the Commission within two weeks.

The Government Gujarat, vide letter No. SBII/COM/1007/337/SPL TEAM dated 22.11.2007 expressed inability to give its consent for CBI investigation. It submitted that “the aspects under consideration of the Hon’ble Commission are very much in seisin before the Justice Nanavati and Justice Shah Commission and because of that also, the Hon’ble Commission would not like to invite the intervention of CBI even as per the provisions of the Protection of Human Rights Act, 1993.” The State Government also pointed out that National Human Rights Commission had filed petitions before the Supreme Court seeking transfer of nine cases for trial outside Gujarat and after the telecast of ‘Operation Kalank’ Ms. Teesta Setalvad had moved a petition for early hearing of all the petitions pending in the Supreme Court and the Supreme Court did not entertain the said request of early hearing. It has also been contended on behalf of the State Government that no investigation by an agency like CBI into the alleged exposure by the telecast of “Operation Kalank” is necessary in-as-much as in respect of various incidents and offences reflected in the said telecast, necessary actions have already been taken and the trials are pending and in the meantime, if any further material is made available, the same can very well be placed before the concerned courts as per the provisions of Section 173 (8) of Cr. P.C.

The Commission has thoroughly deliberated on the submissions made by the State Government of Gujarat and it had bestowed careful thought on all aspects of the issue….”

Despite a stiff resistance from the Gujarat police and in exercise of its powers under Section 12 (1) of the Protection of Human Rights Act, 1993 (for short ‘the Act’), the NHRC issued the directive to CBI. Section 12(1) mandates the Commission to enquire into any violation of human rights or negligence in preventing such violation. The status of the Commission conducting the enquiry under the Act is that of a Civil Court (Section 13 of the Act). It is not an administrative or fact-finding Commission such as those constituted under the Commission of Enquiry Act 1952, but a quasi-judicial body whose jurisdiction cannot be easily ousted. Thus, the NHRC directed that the tapes be authenticated.
The CBI consequently proceeded to authenticate the tapes and they were sealed and were and are evidence in three cases: a) Naroda Patia Special Criminal Trial; b) Gulberg Trial and c) Zaki Jafri case. Unfortunately the Special Investigation Team (SIT) simply refused to use the evidence generated by this Sting during the hearing of the Godhra trial. Ashish Khetan’s evidence was however extensively recorded by the SIT and the Special Courts in both the Naroda Patia and the Gulberg trial. This was, in large measure due to the presence of special advocates for Survivor Witnesses appointed by the Citizens for Justice and Peace (CJP).

In 2010 (July-August), the CJP submitted detailed written submissions to the Nanavati-Shah Commission. The Secretary also appeared and made Oral submissions with the legal team. The Report of the Nanavati Shah Commission is with the Government of Gujarat but not tabled in the Assembly nor made public. (http://www.cjponline.org/gujaratTrials/nanavatisub/nanavatisubmission.htm)

The judgement of Special Judge Jyotsana Yagnik ,convicting 32 persons including former minister in the Narendra Modi cabinet, Maya Kodnani and others had strong words of appreciation for the Sting Operation that helped the Court to prove charges of rape against one of the accused, Suresh Chhara. The judgement was delivered on August 29, 2012.  Naroda Patiya Judgement; http://www.cjponline.org/gujaratTrials/narodapatiya/NP%20Full%20Judgmnt/…)

Today, the crucial evidence of the extra judicial confessions, completely ignored by the SIT, is before the Gujarat High Court in the Zakia Jafri Criminal Revision 205/2014. Arguments in the matter started after much delay in August 2015. Last week dates have been fixed for arguments to resume on March 10-11, 2016. Time will tell whether the incriminating evidence generated through this sting will be tested in trial or not.

In the Protest Petition that will be defended by Zakia Ahsan Jafri in the High Court of Gujarat, substantive sections rely on the evidence revealed b y the Tehelka sting. (See http://www.cjponline.org/zakia/protpetition/Protest%20Petition%20PART%20I.pdf)

See excerpts below from Zakia Ahsan Jafri’s Protest Petition at Paras 111-125:
“Para 111. Before the Hon’ble Supreme Court and co-petitioners in SLP 1088/2008 were unable to get the tapes validated, the NHRC had in a suo moto move ordered their validation/authentication. Mr. Ashish Khaitan, senior journalist had conducted the Sting Operation and has been made a prosecution witness in three of the trials dealing with reprisal killings post Godhra. (Order dated 5.3. 2008 annexed here too as Annexure  Vol I,Sr Nos 44, Page 133-136 ( errata))

112.     The tape recorded conversations of several of the masterminds and executors of the state wide conspiracy that was hatched in Gujarat. The conversations in these tapes have made serious revelations. Seven of these interviews point to the direct role of Accused No 1 (A-1, Mr. Modi) in the masterminding of the conspiracy.

113.     Sessions Judge Mrs. Jyotsna Yagnik in her Order dated 29.8.2012 in the Naroda Patia trial has relied on this ‘Sting Operation’ as corroboratory evidence in that case. Mr. Khaitan recorded his statements before the SIT on 27.8.2009 (Annexure I, Volume I, Serial No. 15,) in this complaint. Besides, Mr. Khaitan has been examined so far in three of the criminal trials that are being supervised by the Hon’ble Supreme Court. While two of these are still ongoing it is relevant here to quote from the judgement of the Sessions Court verdict delivered on 29.8.2012 (Chapter II, Sting Operation, page 750 – 839). The relevant paras from page 769 onwards, where the interview of PW 322 Ashish Khaitan in the Naroda Patiya case, with one of those convicted for rape and murder at Naroda Patiya on 28.2.2002, is discussed. In this entire chapter the Judge finds that the Tehelka tapes and Operation Kalank (the name of the Sting Operation) have been validated and are authentic and while such evidence cannot be the primary evidence against the accused, it certainly can be fortifying, or strong corroboratory evidence.

114.     Accused No. 22 in the Naroda Patiya case, Suresh Langda (Richard) Chara, who’s claim of murder and raping of women in the said Sting Operation related to the Naroda Patiya massacre also stated that Accused No. 1 (Mr. Modi) had visited Naroda Patiya on the evening of 28.2.2002 around 7.00-7.30 p.m. and congratulated him and others who had executed mass murders and rapes. Quote from the Tehelka Sting Operation: “He (Mr. Modi) went around to all the places…he said our tribe was blessed…he said our mothers were blessed (for bearing us)…”

115.   In another section of the Tehelka  tapes, Haresh Bhatt, a Bajrang Dal leader in 2002 and thereafter an MLA of the ruling Bhartiya Janata Party (BJP) said, “I can’t give a statement… but what he did, no chief minister has ever done…he had given us three days to do whatever we could. He said he would not give us time after that…he said this openly…after three days he asked us to stop and everything came to a halt…”

116.   A third person on the Tehelka  tapes, Rajendra Vyas who had been travelling on the Sabarmati express train stated in the sting operation, “He (Mr. Modi) first said that we would take revenge…the same thing I myself had said publicly…I hadn’t even eaten anything then…hadn’t even had a drop of water…I was in such a rage that so many people had died, tears were flowing from my eyes but when I started using my strength…I started abusing…he (Mr. Modi) said, Rajendrabhai, calm yourself, everything will be taken care of…what did he mean when he said everything would be taken care of?…all those who were meant to understand, understood..”

117.   In another section of the Tehelka tapes, Arvind Pandya, government counsel before the Nanavati Commission until 2007, when the Sting Operation became public says, “Thereafter, the second hero by the name of …Narendra Modi…came and he gave oral instructions to the police to remain with the Hindus because the entire kingdom is with the Hindus.”

118.   Yet another such confession can be found in the Tehelka tapes through which A-1 (Mr. Modi) gets directly indicted. Ramesh Dave, a VHP member and strongman says, “We went to the (VHP) office that night…the atmosphere was very disturbing…everybody felt that (we had taken it) for so many years…Narendrabhai gave us great support…in Godhra he gave a very strong statement…he was in a rage…he’s been with the Sangh from childhood…his anger was such…he didn’t come out into the open then but the police machinery was turned totally ineffective…”

119.   Finally, a former MLA and chief auditor of MS University of Vadodara, Dhimant Bhatt has also stated in the Tehelka tapes, “After Godhra, there was this reaction and a certain climate was created in the parivar by the top leaders, meaning the RSS, the VHP, the Bajrang Dal, the BJP and the Durga Vahini…and in that we had Mr. Narendra Modi’s support…let people say what they like (we had) support in the sense that if Hindus are going to be burnt like this….if conspiracies are going to  be hatched to burn Hindus…they wanted to burn the whole train (the Sabarmati express)…and now if we don’t do anything, if we don’t generate an adequate reaction, another train will be set on fire…this was the idea, the thought that came from him (Mr. Modi)…I was present in the meeting…some 50 people like myself had special permission from the Police Commissioner (A-48, then Commissioner of Police, Mr. DD Tuteja) to move in curfew areas to help…in order to maintain the peace and law and order…that was just an excuse…I am very open…clear (about it)…but how we were to help the Hindus? At that time, there wasn’t even a stick of wood in Hindu homes. So what were we to do?…we took iron pipes…three feet each…iron bars, and if there were people from the Bajrang Dal, then trishuls…the Bajrang Dal people had a plan for putting together the saamaan (weapons) and we went and supplied them to key persons in various localities…it was very necessary…”

SIT Conclusions on the Sting Operation
120.     The SIT mandated with this sensitive and critical investigation was expected to probe every aspect of the charges against A-1 (Mr. Modi) thoroughly and objectively. Instead, the manner in which the SIT has dealt with the serious allegations made by a) an Accused (No. 22) in the Naroda Patiya case now convicted by a Judgement of the Sessions Court dated 29.2.2012; b) Haresh Bhatt a former MLA and Bajrang Dal leader; c) Rajendra Vyas, a worker of the RSS and VHP d) Ramesh Dave, Vadodara, a worker of the RSS and VHP and e)  Dhimant Bhatt, an accountant with the MS University and f)  Arvind Pandya, advocate for the state government in the Nanavati Commission until 2007 (when he was mysteriously removed following the Sting Operation being telecast) exposes the bias of the SIT. The SIT has not even linked Arvind Pandya’s conduct here as an agent of the A-1 (Mr. Modi) in trying to intimidate witnesses and whistleblowers like Mr. R. B. Sreekumar from speaking the truth before the Nanavati Commission.

121.     A general query is put to A-1 (Mr. Modi) when his statement was recorded on 27-28.3.2010 (Annexure 1, Volume II, Serial No. 113, Page 450-467) about the Sting Operation. Thereafter, this is what the SIT concludes: “He (Mr. Modi) has further stated that this issue was raised in November 2007, after about six years of incident and that too at the time of elections in December 2007. Further, these issues were again raked up in April 2008 when the SIT was appointed by the Supreme Court. Shri Modi has also stated that this issue was again raised on 22-02-2010, when he was to appear before the SIT for his examination. According to Shri Modi, the whole episode is motivated and stage-managed and that he had no personal knowledge about the authenticity of the said CD.” 

122.     The SIT gives no importance or credence at all to the CBI authentication following the order of the NHRC on 5.3.2008. The CM’s itinerary is part of the Investigation Papers at Annexure IV File IX at serial nos 250, pages 3502-3508. This itinerary shows a two and a half hour gap between the press conference at 1800 at Shahibaug Annexe Circuit house and a law and order meeting at the residence of A-1 Mr. Modi at 2030 hours on 28.2.2002. This does not preclude him making a trip to Naroda Patiya at the time mentioned by Mr. Chara, now convicted of rape and murder. Given the fact that the Tehelka  tapes have not just been authenticated by the CBI but the Sessions Judge in the Naroda Patiya case has accepted them as evidence, SIT should have been much more thorough and exacting in validating, or rejecting this corroborative evidence against Mr. Modi’s direct involvement in the conspiracy.

123.     Besides, he did go to Godhra immediately on hearing of the tragedy on 27.2.2002, where the evidence of DM Mrs. Jayanti Ravi and others given to the SIT states that he among others also met people at the railway yard where he could well have met both Mr. Vyas and Mr. Bhatt.

124.     SIT should have co-related the evidence on the ground – large-scale, planned attacks perpetrated on the minorities while the police in many cases just watched –  and thereafter closely cross-questioned police authorities including A-29 (Mr. PC Pande, then Commissioner of Police Ahmedabad), A-48 (Mr. DD Tuteja, then Commissioner of Vadodara) etc. The SIT ought to have made a thorough and exacting analysis of districts like Bhavnagar, Surat and Kutch where similar attacks were planned and attempted, but exemplary conduct from the men and women in charge, Superintendants of Police and others, prevented this violence from escalating and becoming macabre dances of death as they were allowed to in Ahmedabad, Panchmahals district, Mehsana, Kheda, Vadodara, Sabarkantha, Banaskantha and Patan.

125.     The SIT, by not taking the Sting Operation seriously, moreover a sting operation that had generated vital evidence of conspiracy and the involvement of top accused have shown both unprofessionalism and bias. The Sting Operation has now even been validated by a Sessions Court in the Naroda Patiya case, no thanks to the SIT but thanks to an independent suo moto act of the NHRC in ordering the authentication and thereby the preservation of this crucial evidence.

Tehelka’s conversation with Bhatt raises serious questions for the authorities and investigating agencies about the sinister accumulation of arms and ammunition by Bajrang Dal and VHP men all over Gujarat. During the same sting operation Tehelka also spoke to the then VHPdistrict convener from Sabarkantha, Dhawal Patel. He too provides startling details about the stockpiling of ammunition and bombs. Why were sangh parivar members stocking up on ammunition prior to February 27, 2002? As part of its investigation into the wider conspiracy, that the SIT was mandated to undertake it ought to have investigated this. That it did not exposes its bias. This aspect needs to be looked at in further investigation.

247.     Arms distribution before the execution of mass crimes From Tehelka’s ‘Operation Kalank’: Haresh Bhatt, the then BJP MLA from Godhra, to Tehelka:, Bhatt says a well-planned conspiracy was hatched to import large quantities of ammunition from outside Gujarat and also to manufacture weapons within the state. He names one Rohitbhai (VHP treasurer) as being a core member of the planning team. He says the plan to import arms, swords and other ammunition into Gujarat from Punjab and elsewhere was a long-standing one and that he brought swords and country made guns into Gujarat and distributed them all over.  He says that a large number of bombs, including diesel bombs and pipe bombs, were manufactured at his factory while rocket launchers were manufactured both at his factory and elsewhere. These rocket launchers, with stands, were made using thick pipes and filled with gunpowder and then sealed and blast using locally made ‘598 bombs’. The weapons were then distributed across Gujarat. Haresh Bhatt also said he previously owned a firecracker factory in Ahmedabad, one that was fully operational on February 27, 2002!

248.     Questions raised:
a) Who were the conspirators involved?
b) When and where did they meet?
c) Did this meeting take place well before February 27, 2002, when the Godhra arson took place, and if so, what was the real intent, the motive?
d) When did Haresh Bhatt order two truckload consignments (of swords) from Punjab?
e) When did Bhatt order the consignment of desiguns from UP and MP?
f) How long does it take for a loaded truck to travel between Punjab and Gujarat?
g) How long does it take for a loaded truck to travel between UP and Gujarat?
h) Who are the manufacturers and suppliers of swords (in Punjab) and countrymade guns (in UP and MP)?
i) When did they receive the orders for consignment and when did they deliver these? Most importantly, who paid for them?
j) The consignment truck(s) must have passed through many states – Punjab, Haryana, UP, MP and Rajasthan. How was easy passage for the arms arranged?
k) When did the consignments actually arrive in Gujarat and where in Gujarat did they arrive?
l) Were these consignments delivered to locations other than Godhra? Did these destinations include Ahmedabad, for instance? (In the post-Godhra violence, Ahmedabad and Panchmahal district were the worst affected in terms of loss of life while Sabarkantha was the worst affected in terms of loss of property.)
m) If the consignments were ordered well before February 27, 2002, will this fact not have some bearing on the much touted Godhra conspiracy theory?
n) If the consignments arrived in Godhra, which is a hub of truck owners, hundreds of trucks could be available at short notice to supply consignments all over Gujarat. It is now well known that the genocidal carnage that Modi presided over spread to 19 of Gujarat’s 25 districts within hours of the news of the Godhra train burning.
o) What is the identity of the vehicles used for the supply of these arms and to whom did they belong?
p) To whom, and at which location/s, were these arms and ammunitions supplied?
q) Who were the officials, police, octroi department and others, who allowed these consignments safe passage?”

Attempts are being made by Zakia Ahsan Jafri assisted by the CJP to ensure serious investigations into these questions. Until these are effectively probed, as the NHRC observed, “the ghosts of the post Godhra violence will continue to haunt us.”
References:

Source: Sabrangindia https://sabrangindia.in/indepth/incriminating-video-transcripts-yet-untested-evidence

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