Zakia Jafri SLP: All we want is an investigation, argues senior counsel Kapil Sibal SC has started hearing CJP’s Special Leave Petition since October 26
27, Oct 2021 | CJP Team
On October 26, the Supreme Court began hearing a Special Leave Petition filed by Zakia Ahsan Jafri and Citizens for Justice and Peace. Zakia Jafri is the wife of slain congress leader Ahsan Jafri who was brutally murdered in the Gulberg massacre of 2002.
Senior Counsel Kapil Sibal, appearing for the petitioners highlighted the main grievance that arises from the closure report filed by the Special Investigation Team (SIT) that failed to take into account, the important evidence related to the case. Senior counsel Sibal said, “SIT was already in seizure of several facts which it did not look at all while filing its closure report…”
He further gave a background to the court that the petitioners had first filed an exhaustive complaint dated June 8, 2006 to the then Director General of Police, PC Pande. The complaint that ran into over 100 pages outlined the contours of a widespread conspiracy that, in the petitioners’ views contributed to the perpetrated violence that broke out in the state from February 27, 2002 onwards, the day of the tragic Godhra mass arson. The complaint has annexed 200 pages of evidence garnered from affidavits filed by serving officers of the state government. Evidence thereafter collated from 24,000 pages of the SIT Investigation records (in 2013) starkly corroborated this evidence.
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.
Senior counsel Kapil Sibal argued that the Magistrate and the revisional court (the High Court) were duty bound to take cognisance of the offence committed in the State, but they didn’t. He said, “The duty of the court…that’s the central question the lordships will have to decide…once the Magistrate receives information which according to us constitutes an offence, the Magistrate is duty bound to not only look at the information but also take cognisance of the offence.” Hence, the SIT’s decision whether an offence was committed or not is irrelevant, he argued.
He further stated that back on June 8, 2006, the complainant had filed a complaint addressed to the DGP, Gujarat wherein the complainants had categorically alleged that there was a wide-ranging conspiracy afoot that led to the collapse of the law-and-order situation in Gujarat after the Godhra train burning incident. In the said complaint, the petitioners stated that the political establishment and the bureaucracy were complicit in the carnage through overt acts and through omission of statutory duties.
He argued that the evidence in the matter that was part of official records was neither looked at by the SIT, nor the Magistrate and the Gujarat high court. “All we want is that our matter is looked at…if you don’t investigate, just file a closure report, where do we go?”, said senior counsel Sibal. ‘This Republic is too great to deny a person justice,” he stated.
The materials referred to by the counsel involve the records of the state intelligence bureau (SIB), the police exchanges and control rooms (PCR), documents, “If you don’t investigate, don’t look at this, file a closure report and that is accepted, where do we go?”, argued Mr. Sibal.
He further argued that the SIT also didn’t take into consideration the procedure and statements made before Justices (retd.) Hosbet Suresh, PB Sawant. Over the Court’s inquiry upon the reasoning given by the Magistrate to ignore this evidence on record, Sibal said, “The Magistrate stated that he’ll not look into anything else and will stick to the complaint filed by Zakia Jafri. His logic is simple, he is not concerned with any of this.”
Mr. Sibal added, “My lords, our case was that there was a larger conspiracy at play, where there was bureaucratic inaction, police complicity, hate speech and a conspired directed unleashing of violence. The Magistrate said I won’t look at it because the supreme court prevents me from doing that and only look at the Gulberg society case.”
He argued that the investigation, the SIT’s report was not only limited to the Gulberg society massacre but the entire state of Gujarat, including all complaints filed at that time. Sibal vehemently posed that if the purpose of the SIT was to investigate the reason behind the violence of 2002, they should have taken every evidence into consideration. Reading out extensively from the first Inquiry Report filed by former CBI DIG, AK Malhotra before the Supreme Court (2010) and thereafter the closure report (2012) he detailed how the SIT itself had never restricted its inquiry/investigations only into Gulberg.
“I must have a remedy in law, what is that remedy? The magistrate doesn’t look at it, sessions court doesn’t look at it! The high court doesn’t look at it…Where will anyone go? I’m giving you official evidence and taking you through it. Because of police inaction, people were massacred.”
He pressed that the report of the SIT involved all kinds of crimes that were committed in Gujarat during the anti-minority violence and if this was not considered in its entirety, the rule of law will be threatened. He said, “If we limit it only to Gulberg, what happens to rule of law, what happens to all material? A Republic stands or falls on the basis of what the court does!”
The court will continue to hear the matter on October 27.
Background of the SLP
In 2018, CJP had filed the SLP seeking clarification of the gross anomalies in the judgements of both lower courts (Magistrate and Gujarat High Court) that are both legal and on the facts of this case.
In the present SLP, the petitioners have argued how, the order of the Gujarat HC records that the Magistrate has considered the Closure Report of the SIT and found no substance in the complaint of the Petitioner dated June 8, 2006. Thereafter the Court erroneously goes on to say that the Magistrate provided detailed grounds for not accepting the Protest Petition of Ms Jafri. This, in our submission, is factually incorrect.
It is our case that the Magistrate wrongly held that it was beyond the scope of his powers to direct further investigation. Besides, key and vital issues placed before the Magistrate, detailing our case and making out a sound and substantiated case of criminal conspiracy and abetment, we argue, have not been duly considered by the Magistrate or the High Court.
In the present case before the SC the petitioners (we) argue that it will be abundantly clear from a close perusal of the Protest Petition, that Ms Jafri has substantiated further acts of a larger conspiracy, by detailing evidence about the prelude and build-up of a volatile atmosphere prior to February 27, 2002, the post mortems being conducted in the wide open in violation of statutory provisions, no preventive arrests and delayed implementation of curfew in Ahmedabad despite widespread violence from February 27, 2002 onwards, among other issues.
Besides, we argue that, an analysis of Police Control Room (PCR Records) shows Dereliction of Duty by First Responders. The conspiracy, as constructed in the Protest Petition also provides proof of:
- misreporting and misleading constitutional and statutory authorities
- destruction of records relating to Minutes of Meetings, Police Logbooks, Wireless Messages
by those at the helm of power in 2002.
It is on these issues as also on the conscious and erroneous clubbing of the Zakia Jafri complaint with the single incident at Gulberg society (that took place on February 28, 2002 and according to us is just one of 300 incidents and one link In the wider conspiracy) that the lower courts have erred and we seek correction and remedy.
Brief Background of the Zakia Jafri case
Zakia Jafri is the widow of Congress MP Ahsan Jafri who was brutally murdered in the Gulberg Society massacre that took place on February 28, 2002 during the post-Godhra genocide in Gujarat. Zakia and Ahsan were sheltering their neighbours from a violent mob during the attack. Ehsan stepped out to plead with the mob for mercy for the people he was sheltering. He willingly sacrificed his own life in the process as the blood thirsty mob tortured and lynched Ahsan Jafri to death. Zakia Jafri, his widow, is no doubt a survivor of this individual incident of pre-meditated violence.
The Zakia Jafri case is a unique and unprecedented litigation that attempts to pin responsibility for the Gujarat 2002 carnage on the people who were in power at the time… people who failed to prevent the spread of violence, and may have done so deliberately. Often confused with the Gulberg Society case, mainly due to the persistence of powerful perpetrators to conflate the two, in a possible bid to derail justice, the Zakia Jafri case is a mammoth legal exercise aimed at holding accountable the architects of a vile and despicable conspiracy. While Zakia Jafri is the prime mover in the case, CJP through its Secretary Teesta Setalvad is the second petitioner. It was CJP that has, since the filing of the complaint in June 2006, assisted the first petitioner in galvanising the entire material that led up to the filing of the Protest Petition in 2013 and thereafter the Criminal Revision Application in 2015. From 2014, Setalvad and her partner Javed Anand became the target of the first attack by the newly elected regime at the Centre for their consistency in trying to bring survivors of the 2002 carnage to justice.
The Gulberg Society case is distinct from the Zakia Jafri case. While the former deals only with the massacre that took place at Gulberg Society, the latter seeks to pin criminal and administrative liability –as also trace command responsibility — for the approximately 300 incidents over 19 districts that made up the shocking genocidal carnage in Gujarat in 2002.
First complaint (dated June 8, 2006)
On June 8, 2006 Zakia Jafri filed an FIR against 63 people for offences punishable u/s 302 r/w 120-B, of the Indian penal Code with sections 193 r/w 114 IPC, 186 & 153 A, 186, 187 of the Indian Penal Code and u/s Section 6 of the Commission of Inquiry Act; The Gujarat Police Act and The Protection of Human Rights Act [PHRA], 1991. The FIR filed by Zakia Jafri named not only the then Chief Minister of Gujarat and his close associate, who has since then gone on to hold powerful positions such as President of the political party that is in power at the center and Union Minister of Home Affairs, but also several other powerful people including top ministers, MLAs, leaders of right wing supremacist groups, top IAS and IPS officers, and other powerful office bearers in the state’s bureaucracy.
The entire complaint may be read here.
However, this complained did not get any response, forcing Zakia Jafri to file a petition in the Gujarat High Court praying that her complaint be treated as First Information Report (FIR) so that investigation into the wider conspiracy behind the Gujarat riots may begin. But the High Court dismissed this directing Zakia to file a private complaint, a tedious and complicated option.
SLP – 1088 of 2008
This is why Zakia Jafri moved Supreme Court via a Special Leave Petition (1088 of 2008) filed against the impugned judgement and order passed on November 2, 2007 by the Gujarat High Court. The SLP 1088 of 2008 may be read here. Following this the Special Investigation Team (SIT) constituted to look into the Gujarat Riots cases was also directed by Supreme Court to investigate the claims in this SLP via an order passed on April 27, 2009.
The Supreme Court first appointed noted legal luminary Prashant Bhushan as the Amicus Curiae, but he was later replaced with Raju Ramchandran. Ramachandran was tasked with ensuring that the SIT investigation into the matter was headed in the right direction and conducted in accordance with provisions of the law. The Amicus Curiae filed the following two reports:
Interim Report by Amicus Curiae
The SIT also filed its Preliminary Report dated May 12, 2010. The SIT Closure Report dated February 8, 2012 may be read here:
SIT Closure Report Volume 1 Page 1 to 100
SIT Closure Report Volume 1 Page 101 to 200
SIT Closure Report Volume 1 Page 201-270
The SIT Report in case of the killing of Ehsan Jafri was shocking to say the least. Not only did they state that the Call Data Records of Ehsan Jafri were not available, they also blamed Jafri for instigating the violence by discharging a fire arm, towing the Chief Minister’s “action causing reaction” line! There were several other instances of shoddy investigation and glaring lapses.
The SIT filed a Closure Report in 2012, without giving an audience to Ms Jafri as is her legal right. Thereafter she had to petition the Supreme Court again in a fresh SLP.
SLP – 8989 of 2012
This SLP was filed to acquire the full and complete investigation records, reports and documents. The SIT, that had been clearly directed by the Order of the Supreme Court to supply all documents and reports related to the Investigation, in effect resisted and delayed matters to such an extent that between February 8, 2012, when its final report was filed, and February 7, 2013, when the Supreme Court finally directed that all reports should be provided to the Complainant, a year had passed!
This led Zakia Jafri and CJP to file a Protest Petition on April 15, 2013.
In the petition Zakia prayed,
That in deciding the Protest Petition the Hon‘ble Court has to exercise its Independent mind on the Final Report submitted by the Investigating Agency. The Court is not bound by the conclusions drawn by the Investigating Agency. The Court has to look at the material to satisfy itself whether prima facie it is a case for taking cognizance of the offence. The material has to be looked at, not from the angle that it is sufficient for conviction but that the material is sufficient for proceeding with the case. The Court cannot adjudicate on the material to find out whether an offence is made out or not, which is the domain when the trial starts and evidence is led by the parties.”
The two parts of the Protest Petition may be read here:
It is only after that order of the SC in February 2013, that the CJP legal team analysed close to 23,000 pages of documents that became the basis of the detailed construct and narrative of the Protest Petition. It is through this Protest Petition that the Petitioner has drawn out the lacunae in SIT’s investigation and constructed a more comprehensive and prima facie case for large conspiracy, abetment, dereliction of duty by First Responders and Hate Speech, which in the Petitioner’s opinion, is squarely made from the documents on record.
This Protest Petition was heard over 18 hearings. However, the petition was dismissed on December 26, 2013, when Magistrate Ganatra accepted the SIT Report and rejected the relief sought by Zakia Jafri.
Gujarat HC Judgement
On October 5, 2017, Hon’ble Justice Sonia Gokani delivered a judgement that once again set in motion Zakia Jafri’s quest for justice. In, her judgement Justice Gokani observed:
It is one thing to say that it is agreeable with the report of SIT and hence, chooses not to direct further investigation. But, to say that in the given circumstances, it does not possess such powers is caring under the awe of events that led the SIT to directly look into the complaint. Learned Metropolitan Magistrate Court was directed to consider the final report by the Apex Court in its final order and determine whether the collection of evidence compiled with the report of SIT and the Protest Petition cull out a case of lodgment of an FIR, by even explicitly stating the powers to direct further investigation and hence, to that extent, the conclusion drawn is in contravention of established legal principles.”
The court ruled:
… this revision application deserves to be SUCCEEDED PARTLY and the order of the learned Metropolitan Magistrate dated 16.12.2013 deserves interference to the extent the trial Court held and selflimited itself of its not having powers of further investigation.”
The entire judgement may be read here.
More details about the Zakia Zafri case, concerns raised and legal points made, may be read here.
Zakia Jafri Case: Bringing the High and Mighty to Justice
Gujarat Genocide: Mystery of the ‘Clean Chit’
Adv Mihir Desai explains Genesis of the Zakia Jafri Case
Advocate Mihir Desai explains how the SC dealt with the Zakia Jafri Case
Adv Mihir Desai talks about the Evidence Unearthed in the Zakia Jafri Case
Adv Mihir Desai explains the Legal Technicalities in the Zakia Jafri Case