17, Nov 2021 | Sanchita Kadam
“These are ‘deliberate’ acts of omission,” argued Senior Advocate Kapil Sibal referring to the role played by the court appointed Special Investigation Team (SIT), while arguing for Zakia Jafri and Citizens for Justice and Peace (CJP) in the Special Leave Petition (SLP) hearing before the Supreme Court.
The bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar has been apprised of this matter and at the beginning of the hearing on November 16, had expressed its reservations on casting doubts on the motive of the SIT. On the other hand, Mr Sibal insisted that he will demonstrate in due time, why he was casting such aspersions. During the hearing he not only cited cases to demonstrate the role of lower courts in criminal trials, but also provided materials to show that SIT had before it evidences that could have established a larger conspiracy had they been investigated.
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.
Court cannot be a silent spectator
Pointing to the role that the Magistrate Court could have played, Sibal cited Zahira Sheikh and anr. Vs State of Gujarat (2004) 4 SCC 158 where the court held that, “Discord has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of Fair trial entails familiar triangulation of interests of the accused the victim and the society and it is the community that acts through the state and the prosecuting agencies.”
The court had further held that if a Criminal Court is to be an effective instrument in dispensing justice the presiding judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and illicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community it serves.
The court also addressed the issue of when the victim is pointing fingers at the government or the administration and said, “When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyze by such inaction or lethargic action of courts and it rolled in stages the faith in built in the judicial system ultimately destroying the very justice delivery system of the country itself stop doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.”
The court even pointed out that in this case, the public prosecutor seemed to have acted as a defense counsel, giving clear indications of a conspiracy or evidence of conspiracy which warranted investigation by the SIT as it was looking at the “larger conspiracy” aspect behind the Gujarat riots. The court had said, “The investigation appears to be perfunctory an anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defense counsel then one whose duty was to present the truth before the court. The quote intern appeared to be a silent spectator mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the state government also leaves much to be desired. One gets the feeling that there was really no seriousness in the state’s approach in assailing the trial courts judgment.”
Another indication of conspiracy
Pointing to another indication of conspiracy, Sibal cited the Supreme Court judgement in Zahira Sheikh and anr. Vs State of Gujarat 2006 3 SCC 374 whereby Zahira who was one of the key eye-witnessed in the Best Bakery case, had alleged that she was threatened and coerced to make certain statements in court. Due to her departure from her statements and claims that she was coerced, the trial court had acquitted the accused; an acquittal that was confirmed by the High Court. However, the matter reached Supreme Court and the court directed an inquiry into Zahira’s claims through the Registrar General of the court. The inquiry had revealed that Zahira was unable to explain the assets in her possession, including large amounts of money received in her bank account. Even tapes of the Tehelka sting operation were referred to here with respect to statements made by individuals like Tushar Vyas, MLA Madhu Srivastava and other who indicated that money was paid to Zahira to change her stand and claim coercion. The inquiry officer in his findings stated had stated,
“In view of all this, as discussed above, the fact which can be accepted as highly probable, that money has exchanged hands and that was the main inducement responsible which made Ms Zahira to state in a particular way in the trial court, Vadodara although threat could have also played a role in reaching at an agreement. However, the element of threat cannot be altogether ruled out. One cannot lose sight of the fact that first contact over cellphone was made by Shri Madhu Srivastava and Shri Bharat Thakkar and not by Shri Nasitullah. The evidence of Shri Abhishekk Kapoor about the presence f Shri Madhu Srivastava, MLA in the Court at the time of testimony of Ms Zahira can also be treated as an indication of this factor”
Thus, there were clear indications in this judgement itself, that there were attempts being made to influence key witnesses in order to ensure acquittal of accused persons. Yet, the SIT did not play into these matters and failed to investigate the larger conspiracy behind the riots, since clearly elected representatives were involved here.
On this, Sibal commented, “This I not some technical lapse on the part of SIT. These are “deliberate” acts of omission. Whether it was deliberate, circumstances will tell, I daresay it was.”
Fair investigation and duty of the court
Sibal cited another case, Dayal Singh & Ors vs State Of Uttaranchal 2012 8 SCC 263 to demonstrate principles of fair investigation and the obligations of the court in case police records become suspect and investigation perfunctory. The court observed that this case was a glaring example of irresponsible investigation and smacked of intentional mischief to misdirect the investigation as well as to withhold material evidence from the Court.
In the case of Sathi Prasad v. The State of U.P. [(1972) 3 SCC 613], this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in the case of Dhanaj Singh @ Shera & Ors. v. State of Punjab [(2004) 3 SCC 654], held, “In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.”
Sibal suggested the role that the Magistrate Court could have played when the petitioners opposed the closure report of the SIT and filed the Protest Petition encompassing all the evidence that was available with the SIT but never investigated.
Dealing with the cases of omission and commission, the Court in the case of Paras Yadav v. State of Bihar [AIR 1999 SC 644], enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
The Supreme Court, in Dayal Singh & Ors vs State Of Uttaranchal, emphasising on the role of the court when investigation is found to be faulty, held thus,
With the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.”
“Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not sub-served. For truly attaining this object of a ‘fair trial’, the Court should leave no stone unturned to do justice and protect the interest of the society as well.”
“We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the Courts would be fully justified in directing the disciplinary authorities to take appropriate disciplinary or other action in accordance with law, whether such officer, expert or employee witness, is in service or has since retired.”
Sibal highlighted that the petitioner requested the courts to look at their protest petition, but neither the Magistrate court nor the High Court looked at it and the evidence therein. “What became the victim in this case was justice itself. It is the failure of the system,” he remarked.
“We had bomb making experts… we bombed houses”
Going back to Tehelka sting operation tapes, Sibal read out statements of Dhawal Patel, VHP leader, Sabarkantha where he claimed that he has a stone mining site where bombs were manufactured and supplied for the riots. He also claims to have bombed houses belonging to Muslims and boasts that earlier in that area there were 400 Muslims and now only 100-200 are left. He also made claims of riots in April 2002 where a mob of 3000-4000 gathered and attacked and the police supported this mob. He also claims to have killed 4 Muslims.
Sibal questioned if all of this was there in SIT’s records, why did they arrest him or investigate further, “What better evidence can you get? Why this omission by SIT? Because he needed protection?”
Thereafter he referred to statements of Dilip Trivedi, VHP Secretary and head of the panel of Public Prosecutors in Mehsana district. In this meeting with the Tehelka reporter, Trivedi boasts how all public prosecutors did as he told them to and how he has to coordinate with government lawyers as well as defence lawyers. He also rejoiced over the fact that out of 1700 odd chargesheet in Gujarat riots cases, only 12 had resulted in conviction.
He also mentions a member of the Nanavati Commission, which was tasked by the Gujarat government to probe into the Godhra train carnage as well as the Gujarat riots. “There is a lot of support from KG Shah in the Nanavati Commission,” Trivedi bragged.
When deposing before the SIT, Trivedi has denied having met the reporter and he was asked only a handful questions, while his statements in the sting operations run for pages and include many more statements than he was questioned for by the SIT. Trivedi was eventually restrained from representing riot victims in the cases after several representations were made by witnesses before the Gujarat High Court and Supreme Court.