The complaint was supposed to be additional material only: SIT in Zakia Jafri SLP SIT claims inaction of officers not criminal, dereliction of duty at best

26, Nov 2021 | Sanchita Kadam

On November 25, the Special Investigation Team (SIT) represented by Senior Counsel Mukul Rohatgi continued to make their submissions in the Special Leave Petition (SLP) of Zakia Jafri and Citizens for Justice and Peace (CJP) before the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar. The respondents are relying upon the closure report filed before the Magistrate Court to assert that meticulous investigation was conducted by them into every aspect of the Zakia Jafri complaint filed in June 2006 and that they did not leave any issue unexamined.

Contention of “additional material”

Rohatgi emphasised through the hearing that in its April 27, 2009, order the Supreme Court had directed the SIT to look into the petitioner, Zakia Jafri’s complaint of June 8, 2006 and had directed that the final report be submitted to the court that had taken cognisance, this relates to the Gulberg society case where Jafri’s husband was killed. He asserted that the complaint was supposed to be additional material for investigation in the Gulberg society case only. “This is not a standalone proceeding. The main case is the proceeding, this was supposed to be additional material… The protest petition (2013) is far beyond the complaint, as if the petition is a fresh complaint,” he said.

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.

The bench then asked how many additional persons were examined by the SIT in the petitioner’s complaint, apart from the Gulberg trial case and also asked for Zakia Jafri’s deposition before the trial court in the Gulberg trial case. The bench also asked if she mentioned any contents of her complaint during such examination and cross examination.

Rohatgi later responded that 19 out of 275 witnesses examined by SIT were witnesses in the Gulberg trial case.

The bench orally remarked that had Jafri stated contents of her complaint before the trial court, when she was being examined, the trial court could have taken action in this matter.

No criminality, dereliction of duty maybe

Rohatgi insisted that the SIT conducted thorough investigation into the matter and that the petitioners are blowing things out of proportion by saying that everybody in the administration, police and holding political power was complicit. Some of the officers may have been lethargic or slow but there is no criminality in their actions. Yet, the SIT devoted a huge amount of time on all the issues raised in the complaint despite most of them being beyond their limit.

Casting doubts on RB Sreekumar

Rohatgi reiterated how the Nanavati Commission as well as the SIT passed adverse comments against then ADG (Intelligence) RB Sreekumar who filed about 9 affidavits before the Commission and also deposed before the SIT presenting evidence about complicity in the administration and political class. He pointed out that Sreekumar is currently facing some serious charges. The SIT, in their closure report had deemed Sreekumar’s testimony to be motivated. Almost every conclusion of their report that relies upon Sreekumar’s testimony calls him motivated; an opinion with which the amicus curiae, Raju Ramachandran, did not concur with.

As per the SIT, he kept his recorded conversations with certain persons like Home Secretary GC Murmu and Arvind Pandya, government pleader as also Dinesh Kapadia, Under Secretary, Budget, as a well guarded secret until he was superseded in promotion in 2005. This was why they deemed him to be motivated and deemed that the credibility of his oral testimony had reduced since it stands uncorroborated. Rohatgi also insisted that Sreekumar was posted as ADG in April 2002 which was much after the riots; since the official stand is that the riots were contained within 72 hours.

Three “star witnesses”

The respondents assert that the petitioner’s complaint is replete with testimonies of only 3 persons, namely, Rahul Sharma, RB Sreekumar and Sanjiv Bhatt. Rohatgi submitted that Sharma was shown as accused first and now the petitioners are relying on his testimonies. While the petitioners maintained that he was inadvertently posed as an accused as he was a witness in the case. Since Mr. Kapil Sibal did not make submissions regarding testimony of Sanjiv Bhatt, Rohatgi said he would not read it either but yet, went on to speak about the charges being currently faced by Sanjiv Bhatt and his conviction in a murder case, among other things.

The closure report

Throughout the hearing, the closure report was read through to indicate that the SIT did a meticulous job at investigating by noting down certain details minute-by minute. The report dealt with every allegation, and the investigation and conclusion for each of it. While reading them out Rohtagi said that these are being claimed to be State sponsored events. “See the impact of this line. This case has gone haywire. That means the State turned against its people,” he remarked.

Is continuing conspiracy alleged?

When Rohatgi mentioned an allegation that the State gave misleading reports to the Election Commission about normalcy, the court questioned when did the state assembly elections take place after the Assembly was dissolved. The elections were held in December 2002. The bench questioned whether the petitioner had alleged a continuing conspiracy, “Was the SIT to examine continuing conspiracy or only during the riots?”

Rohatgi responded, “The SC order is very clear. It said Jafri was killed, she is widow so SIT should examine her complaint because she may have additional material relating to Crime 67/2002 (Gulberg trial case). Supreme Court does not talk of conspiracy. This conspiracy is culled out from the complaint by a meeting which starts on 27.2.2002. The other side did not read it so I am not reading. The complaint is replete that actual conspiracy starts with that meeting. That is their case, but I am not reading.”

He said that the SIT was involved in investigation of 9 major cases but there were hundreds of such incidents. Hence, if the 9 were state sponsored then all of these have to be state sponsored, he remarked.

Are findings on A-1 disputed?

During the hearing, since Mr Sibal had not made any mention of allegations against the then Chief Minister and the conclusions of the SIT in that regard, the bench questioned if the petitioners were not pressing the matter and whether the findings of SIT in this regard are not disputed. Sibal said, “On this issue I do not want any further investigation. I have not asked for it. All I am saying is that I am not asking for further investigation into the meeting of 27.2.2002”.

When Rohatgi went on to read portions about the allegations against A-1, Sibal interjected, “You are now reading parts about A1. I have not gotten into it, let us stay away from this aspect of the conspiracy. If you want to go into it, I will have to reply”.

The hearing will proceed on December 1.

The order may be read here:

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