02, Dec 2021 | Sanchita Kadam
The Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar continued to hear the submissions being made by the Special Investigation Team (SIT) represented by Senior Counsel Mukul Rohatgi in the matter of the Special Leave petition (SLP) filed by Zakia Jafri and CJP concerned with the allegation of larger conspiracy behind the 2002 Gujarat riots.
December 1 marked that 10th day of the marathon hearing by the bench where Rohatgi reiterated that the SIT did its job and asserted that the Nanavati Commission gave its findings concurrent with the SIT’s findings and also justified the trial court’s acceptance of the SIT’s closure report.
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.
Rohatgi has submitted that the petitioners have alleged that there was build up of arms even before February 27, 2002. The petition has, under the heading “mystery of fire”, a portion which tries to speculate how the coach in the train caught fire. Rohatgi said that the petitioners have stated that the behaviour of the kar sevaks was provocative. “As if the incident was provoked. As if there was a fire from within the train. This is wrong. Preposterous,” Rohatgi commented.
The bench questioned if these comments by the petitioners were based on findings of any Commission. Rohatgi said that the trial court, the Nanavati Commission as well as the SIT have discounted their claims. Instead, these are based on findings of the ‘Concerned Citizens Tribunal’ comprising former Supreme Court judges VR Krishna Iyer and Justice PB Sawant as well as former High Court judge, Justice Hosbet Suresh, among others. “We cannot give recognition to them. It does not have legal backing,” Rohatgi added.
Findings of Nanavati Commission
Rohatgi was reading out the findings of the Nanavati Commission wherein it was stated that the riots began at 1 P.M on February 28, 2002 and not earlier. “By 2 P.M, Army was called in. Right when riots commenced these things are happening. The riots did not commence in the morning, they commenced at noon and after,” he submitted. He also stated that as per the finding of the Commission, riots commenced when late Ehsan Jafri shot 8 rounds from his gun.
The Commission also found no substance in the allegation of parading of bodies and held that the bodies in Godhra were given to police escort and not handed over to Jaideep Patel of VHP. The Commission even found that Rahul Sharma was not telling the truth with regard to possession of original CDs of the call data records. It even discredited RB Sreekumar’s deposition and the affidavits filed by him before the Commission.
Keeping the pot boiling
Rohatgi insisted that the complaint has gone out of the hands of the complainant. The protest petition is now 1,200 pages, he pointed out. He stated that when the Gujarat High Court told the complainant to file a complaint under section 190 of CrPC, she should have done that. “Now to keep the pot boiling shows the sinister side,” he commented.
Rohatgi submitted that the Magistrate court heard the closure report and protest petition on a day to day basis from April 15, 2013 and the judgement was reserved in October which was delivered on December 26, 2013.
The bench commented that the argument is that the evidence was to be placed before the trial court, whether it was acceptable or not, was a matter of trial. Rohatgi said, “I have done my job, this was an additional job. Main context is 9 major cases in which many were convicted. This was adjunct. The conclusion was that it was a spontaneous attack.”
“If something is wrong with the trial court or High Court judgement, it can be redressed by a legal system. You cannot file a complaint in a parallel fashion when a trial is already going on… Now after 20 years (they are saying) treat it as a complaint. Why? The idea is to keep the pot boiling. Another 20 years will go by if it (protest petition) is treated as a complaint. No normal person can file such a petition. It is obvious there is a sinister motive,” Rohatgi said.
Rohatgi also alleged that some witnesses in the Meghani nagar trial said that they got prepared statements tutored by Petitioner no. 2 (Teesta Setalvad).
Hate Speech cases
Rohatgi said that the petitioners are wrong in saying that hate speech cases were not examined. About 2,000 cases directed by Justice Ruma Pal to be reexamined by the range IGs and a large number of these cases related to hate speech.
Limitations of SIT
About non-responsiveness of fire brigade and post mortem allegedly carried out in a hurry, Rohatgi questioned how can these be within the limits of the SIT. “Is it the remit of SIT to see why the post mortem was done on the tracks. This was a decision taken on spot (by administration),” he said.
There are allegations that the dead bodies were handed over to Jaideep Patel based on the letter of the Mamlatdar. Mamlatdar deposed that he gave the letter under instructions of the Collector, Jayanti Ravi, but she has denied the same. But the SIT reached a finding that there was a police escort and Jaideep Patel only accompanied them.
About non-responsive fire brigade, Rohatgi said criminal negligence is alleged. “Calls were not answered. Obviously, there was paralysis since a mob had taken over. It could be dereliction. What is the crime?”
“The ultimate position is that everybody was complicit, only 3 persons spoke the truth, who are the whistleblowers as per the petitioners. These 3 persons have been adversely commented by the Commission as well as the SIT,” he said.
SIT is already an independent body
Rohatgi pointed out that the petitioners have prayed before the High Court, when they went in appeal against the Magistrate Court order accepting the closure report, that an independent authority should investigate the protest petition. He asked, “The SIT was appointed by the Supreme Court, hand picked the officers. Can there be a more independent body?”
Trial Court in Gulberg case
Rohatgi even read out relevant parts of the judgment of the trial court in the Gulberg trial case, where a question was framed for consideration that does the prosecution prove that the accused had entered into a planned conspiracy. The allegation was that the smaller conspiracy at Gulberg was part of larger conspiracy by the political echelon. The court held that there was no such conspiracy.
The bench pointed out that the trial court then, did not have the material that was presented by way of the protest petition. Rohatgi said they had some material, the sting operation tapes, which the court found unreliable, even Rahul Sharma deposed before the court. “If they wanted this material could have been summoned before the court then,” he said.
The trial court found that Mr Jafri fired at the crowd which riled up the crowd and they then entered the building and the riots started. The bench commented that it was all reactionary, the gathering of the crowd, the firing and then another reaction, but we are not going into that. We are concerned with the trial court and High Court with respect to the closure report and Protest petition.
Trial Court accepting Closure report
Rohatgi then started reading parts of the trial court judgment which accepted the SIT’s closure report. He stated that the trial court dealt with every allegation and concurred with the findings of the SIT like the findings related to presence of Ministers in police control room, the handing over of dead bodies, post mortem at the railway yard.
The bench asked Rohatgi in a sequence to see whether all allegations were dealt with by the trial court, because the petitioners have alleged otherwise.
The bench commented, “The petitioners have argued that the real question is whether the decision was malafide. All those reasons have been stated (by trial court)… Your argument is that what the other side is saying that it has not been considered by the Magistrate is not correct.”
The purpose is to show the trial court has applied its mind to every allegation, Rohatgi said.