25, Nov 2021 | Sanchita Kadam
On November 24, Day 8 of the Zakia Jafri-CJP Special Leave Petition (SLP) hearing before the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, the respondent, Special Investigation Team (SIT) started with the submissions, represented by Senior Counsel Mukul Rohatgi.
At the outset he stated that he will demonstrate that the SIT conducted the job assigned to it thoroughly, efficiently and examined all material with due application of mind and submitted the report in the “Gulberg Case”.
“There is no material to conclude that there was any conspiracy large or small, except for the cases that have been tried,” Rohatgi started off.
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.
Justification for bringing bodies to Ahmedabad
He gave the court a run-down of the incidents that started from the Godhra carnage on February 27, 2002 and how after the incident, Post Mortem examination of remains of victims was conducted at the Railway Yard calling doctors there, and the decision was made to bring the bodies to Ahmedabad after the then Chief Minister had visited Godhra.
He reasoned that since Sabarmati Express was headed for Ahmedabad and since 33 out of 58 bodies belonged to kin in Ahmedabad, this decision was taken. “A lot has been said about parading of dead bodies. There is no substance in this,” he submitted.
He also denied that the dead bodies were paraded in any manner. He submitted that the dead bodies were not handed over to VHP leader Jaideep Patel, and he merely accompanied the bodies in the trucks which also had a police escort.
No dispute on Tehelka tapes being genuine
Rohatgi, when he started making submissions about Tehelka sting operation tapes, said that the outset, that he was not disputing the genuineness of the tapes. “SIT has not said it is not genuine, but the SIT found the contents of the tape and statements made by the persons before (Ashish) Khetan inspired no confidence, there was no material to support them and some said it was part of a script,” he submitted. Therefore, SIT did not file any FIR or chargesheet but it still submitted the tapes in 3 cases, one of which was the Gulberg trial case. He pointed out that in the Gulberg case, the trial court rejected the sting material or the fact that the sting shows larger conspiracy.
Allegation of late deployment of army
As opposed to the petitioners’ allegation that there was delay in deployment of army and that they were not given access, Rohatgi completely refuted the same. He submitted that on February 28 itself the decision was made to call the army and a fax was sent to the Union Defense Ministry and the army was airlifted and necessary logistics were provided. He questioned why did Lt Gen Zaheeruddin Shah not come before the SIT to depose, when the SIT had called for the public to depose before it. He insisted that there was no material to support Shah’s memoir.
“It was a preliminary inquiry”
“The incident is of 2002, complaint was filed in 2006, assigned to SIT in 2009, closure report is of 2012, Protest Petition of 2013, then trial court’s decision and the High Court’s decision on the same and today we are in 2021. After so many forums it is easy to say that investigation was not done properly,” Rohatgi said.
He reasoned that when the petitioner came before the Supreme Court, since SIT was already in place and Zakia Jafri being resident of Gulberg Society where her husband was killed, the court asked SIT to examine her complaint and take steps according to law.
“The complaint was not an FIR. Supreme Court also didn’t direct FIR. Really speaking it is preliminary inquiry. But SIT still took the burden, and did much more than preliminary inquiry. Technically it was preliminary inquiry, but they did extensive inquiry. They examined 275 witnesses. It was only to ensure that nobody raises finger that they are partisan,” he said.
“You may not agree with their conclusion but they should not be accused of being partisan,” he added.
He then delved into the order passed by the Supreme Court on September 9, 2011 whereby it directed the SIT to file its final report before the court that had taken cognisance of Crime 67/2002 (Gulberg case). He said it was not an independent complaint. “In law, when chargesheet has been filed in court, this complaint in nature of further material, it cannot be FIR. This complaint is only further material in respect of crime occurred i.e. her husband killed in Gulberg,” he said.
“Our job was to see whether there was other credible material in the 2006 complaint to file chargesheet. That is my limit. My limit is to see if there is material against persons who are not already accused, and whether I should file chargesheet against other accused,” he submitted.
On the allegation that the SIT did not examine phone call data, Rohatgi questioned how can mobile phone records of 2002 be examined in 2012. No company keeps records for 10 years. Police Control Room messages are also to be deleted every 5 years, that is the mandate, he said.
Allegation of omission in complaint
Rohatgi alleged that the petitioners have removed Rahul Sharma, SP Bhavnagar, as accused in the complaint submitted to the Supreme Court as annexure. He alleged that the petitioners had named Rahul Sharma as accused in their complaint and then they have “hailed him as a hero” before this court.
The bench questioned whether the original complaint as being presented by Rohatgi was presented to the High Court when it gave its order in November 2007, Rohatgi said he would get back to the court to confirm this.
He pointed out that the complaint of 2006 did not deal with issues focused on by Sibal, like Tehelka tapes, parading of bodies. However, it is pertinent to note that Tehelka tapes were released in 2007 and that several issues argued by the petitioners were brought to light only by materials made available to them by the SIT and this was reiterated by the petitioners in all hearings before this bench.
Transfer of police officers
The petitioners have alleged that certain officers in field executive posts were transferred in the thick of the riots despite the DGP’s objections. Rohatgi argued that investigating this was beyond the prerogative of the SIT, and yet they went ahead and examined these officers who also said that transfers were the government’s prerogative. The bench reasoned that the petitioners were saying that the officers who were maintaining law and order were transferred out, but Rohatgi insisted that the petitioners’ contention was that they were transferred because they were not in favour of the state government.
Rohatgi also pointed out that RB Sreekumar was superseded in his promotions and hence, he turned against the government and brought forth certain materials only after. However, the closure report states that he mentions of assessment reports submitted by him in 2002 itself, and before April 2005, he had filed two affidavits before the Nanavati Commission already, and the April 2005 affidavit presented data on his harassment and victimisation.
He also alleged that the petitioners’ submission of affidavits submitted before the Nanavati Commission of officers like RB Sreekumar was ‘hearsay’.
He further stated that Arvind Pandya, who said in the Tehelka sting tapes that he was managing defence lawyers in riots case, was not a public prosecutor in any riots cases and was only representing the Gujarat government before the Nanavati Commission.
The Gujarat High Court vide its order November 2, 2007, had ordered that if the petitioner wishes that FIR be registered on her complaint dated June 8, 2006, she should do so under section 190 of CrPC.
About the allegation that Ministers were present in the Police Control rooms during the riots, Rohatgi read through the Closure report of the SIT to give certain justifications that the Minister was made to wait in a separate chamber and the other Minister only probably visited for few minutes, as also statements of few officers who said that the Minister did not visit the control room. Through this, the SIT had concluded that it could not be established whether they were present there. Rohatgi however questioned, what is wrong with Ministers visiting police control rooms?
The hearing will continue on November 25.