08, Dec 2021 | CJP Team
On December 7, the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar heard the concluding arguments of the State of Gujarat as well as the counter submissions of the petitioners. The hearing will continue on December 8.
The petitioners made some significant counter-submissions before the court highlighting how the Special Investigation Team (SIT), in its submissions did not counter the petitioner’s submissions and did not rely upon or comment upon the undisputed evidence relied upon by the petitioners.
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.
State govt submissions
The hearing began with the Solicitor General Tushar Mehta continuing his submissions for the state of Gujarat. He relied upon conclusions of the Nanavati Commission report which had stated that the government had discharged its duties. “These are major findings on steps taken. Wherever the incidents have taken place, nobody has disputed. It is nobody’s case that the guilty have gone unpunished,” SG Mehta submitted. He argued that if re-investigation is directed by the court, it would be travesty of justice.
Petitioners’ counter submissions
Senior counsel Kapil Sibal appearing for the petitioners began his oral arguments reiterating that he had made submissions as per the court’s jurisdiction and hence had not relied upon evidence that was disputed, “I did that because I did not want to enter arenas where the court will have to look into statements made by ABC and have to see who is right or wrong because that is not your jurisdiction.”
He pointed out that the SIT, in its submissions before the court, had relied upon statements recorded under section 161 of CrPC, which cannot be used before the court as they are not findings of facts. He then emphasised what the limit of the Magistrate’s jurisdiction was pointing out, “The Magistrate’s limit is that (to see if) on this material there is strong suspicion that offence has been committed, then he is bound to issue process. If there is none, he accepts the closure report. Magistrate cannot decide on findings of sec. 161 (CrPC) statement. That is why I only placed undisputed documents, on the basis of which no Magistrate could have ever come to the conclusion that there is no strong suspicion that offences were committed.”
He further stated that in cases where such undisputed material is placed, which on the face of it does not raise strong suspicion, the Magistrate will order further investigation.
He relied upon The State Of Gujarat vs Afroz Mohammed Hasanfatta 2019 20 SCC 539 where the court had stated thus,
“It is well-settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well-settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused.”
“Reliance was placed upon Bhushan Kumar and another v. State (NCT of Delhi) and another (2012) 5 SCC 424 wherein it was held as under:- “11. In Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492 (SCC p. 499, para 19) the expression “cognizance” was explained by this Court as “it merely means ‘become aware of’ and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.” It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.”
Further, the court in this case also stated, “In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case,” however Sibal argued that the Magistrate had done just that.
Applying test of strong suspicion
As cited above, Sibal said that in cases where there is strong suspicion, the Supreme Court in State (Delhi Administration) vs I. K. Nangia And Anr 1981 SCC 258 has stated thus,
“There can be no doubt that the order made by the learned Metropolitan Magistrate refusing to issue any process against the respondents is wholly unwarranted. It cannot be said that there is no material for presuming that these respondents had not committed an offence and, therefore, it was not open to the learned Metropolitan Magistrate to come to the conclusion that there was no basis for proceeding against them. The test as laid down by this Court in the State of Bihar v. Ramesh Singh is that at the initial stage, if there is a strong suspicion which leads the Court to think that there is a ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there was no sufficient ground for proceeding against the accused.”
He then re-read certain transcripts from the Tehelka sting operation referred to in his earlier submission to apply this test of string suspicion and question whether such statements could invoke strong suspicion in the eyes of the court or not.
Sibal pointed out that SIT said that there were 2,000 cases filed in relation to hate speech but the question is why did the SIT not prosecute or investigate the material on record with regards to hate speech.
Going beyond the complaint
Sibal referred to the SIT’s submission that they could not look beyond the complaint but Sibal argued that this was not a private complaint, this was a piece of information. “Even if it is an FIR, it is a piece of information, not an encyclopedia of facts and on that the investigating agency finds out many things that may not be part of FIR,” he submitted.
Limited to Gulberg case
The petitioners also submitted that the SIT erred in holding that the complaint was only related to Gulberg incident. “They (SIT) say it is limited to Gulberg but complaint is not limited to Gulberg. 90% of it has nothing to do with Gulberg yet they make arguments that inquiry can’t go beyond Gulberg. This whole position is contradictory,” Sibal argued.
How can tapes be unreliable
The SIT has relied upon the Tehelka sting operation tapes in trials and even secured conviction on the same basis hence the petitioners questioned how can they deem it to be unreliable evidence.
The SIT had submitted that one of the persons on tape was bragging when he made some revelations, to which Sibal asked, “How do they know they are bragging? Do they have personal knowledge of it?”
The so called “star witnesses”
The petitioners contended that they never spoke of these three “star witness” as termed by the SIT.
“When did I argue about them? Did tehelka (tapes) deal with it? No. The SIB messages are official records, nothing to do with them. I relied upon those, not upon RB Sreekumar. He only corroborated them. I never took Sanjiv Bhatt’s name.” Sibal argued. “For Rahul Sharma, argument is why he kept CDR with him for so many years. He had given them (CDR) in 2004 itself. They are not even getting facts right. The SIT even commends Rahul Sharma at one point,” he added.
Apart from the factual error about Rahul Sharma, then SP Bhavnagar, submission of CDR, Sibal also pointed out that the SIT submitted that there was no violence until 1 pm on February 28, 2002 but there is clear evidence that violence started on February 27 itself.
He also questioned why PC Pandey, then Commissioner of Police, Ahmedabad, had kept with him PCR messages and disclosed them only in 2010 and why the SIT had not questioned him about this.
How can you say everything was in order?
Sibal questioned the submissions made by SIT and the state of Gujarat that everything was in order in the state, asking, “If everything was going as per law, why did the Supreme Court stay trials in 9 cases?” He even stated that the NHRC, meanwhile, had approached the court and that is when petitioner no.2, Teesta Setalvad got involved and filed an intervention before the court.
“The petitioner who is now being backlisted worked with NHRC. She worked with the amicus, filed applications. The SIT never took objection then. Suddenly her character is besmirched, if I tell you the facts, you will be shocked,” Sibal said, however he refused to go into details as that was irrelevant.
About having Public Prosecutors belonging to the Vishwa Hindu Parishad (VHP), Sibal submitted, “VHP is alleged to be part of conspiracy for committing serious offences and the lawyers part of VHP are appointed as Public prosecutors and they have come on tape and made some revelations. Now SIT says, so what if they are VHP.”
The 2011 judgement
Sibal re-read parts of the Jakia Nasim Ahesan & Anr vs State Of Gujarat 2011 12 SCC 302
“Accordingly, we direct the Chairman, SIT to forward a final report, along with the entire material collected by the SIT, to the Court which had taken cognizance of Crime Report No.67 of 2002, as required under Section 173(2) of the Code. Before submission of its report, it will be open to the SIT to obtain from the Amicus Curiae copies of his reports submitted to this Court. The said Court will deal with the matter in accordance with law relating to the trial of the accused.”
With reference to this Sibal said, “They are aware that trial was going on. So this 173 (2) relates to this final report. Why does it say that? The court does not know if its chargesheet or closure report. Accused emerging from where? This report. This is not just a complaint and not just related to Gulberg.”
About the argument of ‘look into’ that the SIT kept making that the Supreme Court had directed it to ‘look into’ the complaint, Sibal said, “The Supreme Court never said look into the complaint. It said ‘look into’ the material. This whole argument of complaint and looking into it is meaningless.”
Sibal also pointed out that the complaint is not connected with just the Gulberg incident since the June 2006 complaint is related to the build up, nature of the many incidents and the accused in the Gulberg trial and this complaint are completely different.
The hearing will continue on December 8.