Gujarat Riots | 'No Investigator With A Sense Of Justice Will Discard These Evidence': Sibal Slams SIT Probe Giving Clean Chit To Narendra Modi & Ors

A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar took up the part heard matter for further hearing. Senior Advocate Kapil Sibal appearing for the Petitioner, Zakia Jafri, widow of Congress MLA Ehsan Jafri, who was killed in the Gulberg Housing Society massacre during the 2002 Riots made detailed submissions assailing the Final Report filed by the SIT.

The matter emanates from a complaint filed by Zakia Jafri on 08.06.2006 before the Director General of Police alleging larger conspiracy behind the 2002 riots. On non-registration of the FIR based on the complaint, she approached the Gujarat High Court, which refused to interfere. She was thus constrained to move the Apex Court. The Supreme Court directed the SIT already constituted by its directions in National Human Rights Commission v. State of Gujarat (2009) 6 SCC 767 to also look into the complaint of Zakia Jafri. Subsequently, in 2011, the Supreme Court directed SIT to file report before the court which had already taken cognizance of Gulbarga Society case. As per the Top Court's direction, a report was filed before Magistrate, who refused to take cognisance of the matter. The High Court dismissed the appeal before it. Thereafter, the current Special Leave Petition was filed essentially challenging the report of the SIT and the orders of the courts below.

At the outset Mr. Sibal made it clear that in the hearing he would demonstrate, through largely official documents, that the SIT did not conduct any investigation. Interestingly, he provided an interpretation of Article 21 of the Constitution - It is a mandate for the protection of personal liberty, but in another aspect it is also a mandate for deprivation of liberty. But, the deprivation has to be by means of a procedure established by law, which in this case would be the Cr.P.C. The question that as per Mr. Sibal is of concern in the matter, is whether SIT was following the procedure established by law -

"Question is has the SIT followed procedure established by law in dealing with evidence before them. This also provides the rationale for a protest petition. Why were protest petitions allowed?. Because the real affected party had no say in the matter. In Bhagwan Singh's case (1985) 2 SCC 537 the court said no, the real complainant is to be heard and if investigation is not proper he is to approach court and protest and tell the court must look at this evidence."

Bringing the Court's attention to the dual capacity of Mr. Jafri's as a complainant as well as the injured person, Mr. Sibal submitted that it was precisely the reason why the Court had asked SIT to consider everything.

Thereafter an enquiry was made by the court if the complaint was presented in the existing proceedings CR 67 of 2002(FIR number of Gulbarg society carnage) or a fresh complaint was registered. According to Mr. Sibal it was independent from the other matters, considering that after the order of the Supreme Court, Mrs. Jafri's complaint was placed before the Magistrate whereas the other matters, including Gulbarga, were being taken up by the Sessions Court. On a perusal of the order of the Supreme Court, the Bench was of the opinion that there was no direction of the Apex Court to register the Petitioner's complaint as a separate case and it was filed under CR 67 of 2002.  Senior Advocate Mukul Rohatgi appearing for the SIT addressed the issue as under:

"It is like this - there were 9 major cases, 9 FIRs, Gulberg is the case where the husband was killed. Then came SIT in 2008-09. They took up all major cases and filed chargesheets in each of those cases. 4455 supplementary chargesheet were filed. Her complaint was not converted into an FIR, she went to HC. HC asked to file a complaint. She came to SC against the order of HC. There was a pending matter of NHRC. Her SLP was kind of clubbed together. Also an order was passed in which SC said all aspects to be investigated by SIT. After consideration, SIT came to the conclusion that apart from the chargesheet filed there was no material in the matter of 2006 to take it forward. In that sense it was a closure."

Pointing to the report of the SIT which mentioned CR 67 of 2002 the Bench remarked - "SIT  had also understood it like that. It was in CR 67 of 2002."

To prevent further diversion from the main grievance of Mr. Sibal, the Bench stated -

"This is not your main grievance. Let's come to that. SIT not investigating and Magistrate not taking note of the same."

Moving onto the facts of the case, Mr. Sibal referred to one of the report in Vol XI of his submissions:

"Let's move onto the facts. In Vol 11 in one of such reports was there. This report will show that the report was not limited to Gulbarga...Again nothing to do with Gulberga..."

Reading from the Report, Mr. Sibal pointed out that SIT itself had stated that no stakeholder was cooperating with it for the investigation even in 2009 -

"This is purely a preliminary enquiry and not an investigation.The statements recorded during enquiry therefore do not amount to statements under 161. Despite this limitation efforts were made by the enquiry officer to get hold of relevant documents from the Government of Gujarat and the public servants, retired public servants, retired politicians as well as those in power. So enquiries were delayed. Some public servants are abroad and therefore difficult constraints were experienced in inquiry, some of which are given - police witnesses record with Govt of Gujarat was reportedly destroyed, no law and order meeting during riots was kept..."

At this juncture the Bench enquiried if this report is the same as the one before the Magistrate.

"This culminates into the Closure Report" responds Mr. Sibal.

"This is a preliminary enquiry report before the SC...After SC order when Closure report was presented, when was this presented to Magistrate. It has to be after 2011." enquired the Bench.

Mr. Sibal informed "08.02.2012"

Bench observed that "After SC order, perhaps 161 statements were recorded".

Mr. Sibal responded in the negative and thus the Bench went to Mr. Rohatgi. He submitted that -

"This was a slightly unique procedure adopted by SC. Investigation follows FIR. Here FIR and charge sheets were parallely going on. Technically it was not 161. The Investigation was in the nature of preliminary investigation."

Filing of closure report without recording statement, without arresting people, accepting statement of accused, without seizing phone, without examining CDR Record

Pointing at the shortcomings of the SIT investigation, Mr. Sibal stated:

"So they have to do an investigation. You don't record statements. Accepted statement of accused and file closure report. No phone seized, never examined CDR Record, never checks why records were destroyed, never checks why police was standing by. The fact of the matter is that was to be an investigation. Now I will start with Vol I. I refer to one judgement i.e.(1955) 1 SCR 1150 (in law these allegations are to be investigated) then I come to Vol. 1."

The Most damaging, the most disconcerting i.e. the sting operation evidence was not looked at

The senior lawyer highlighted that the SIT ignored the tapes of the sting operation done by Tehalka magazine, in which many persons had given open statements about their participation in the violence and accumulation of weapons and bombs.

Although the same tapes were used for conviction in the Naroda Patya case, and although the Gujarat High Court had endorsed the authenticity of the tapes, the SIT ignored them in Zakia Jafri's complaint. Sibal submitted that the SIT did not even seize the phones of the persons in the sting tapes and gather their call data records.

Mr. Sibal submitted, "The most damaging, the most disconcerting evidence is the sting operation, which under orders of NHRC was to be.. tape was to be authenticated by CBI, which was authenticated by CBI and used in other proceedings, treated as extra judicial confession and resulted in conviction. That very sting operation relating to the complaint was not even looked at. Let me start with that."

He added - "Now Milords. Kindly look at Vol. VA, pg 291. These are transcripts of recordings. Tapes authenticated by CBI but not touched by SIT at all. Bottom of 292...The reason I am pointing this out is that nobody disputes this tape other than the accused. SIT does not arrest him, go to spot, no 161 statements, What are we to do. Guj HC authenticates tapes in Naroda matter."

The Bench asked - "Was this person (Mr. Anil, mentioned in the transcript) named as accused in your complaint?"

Mr. Sibal explained that he was not named in the complaint - "I did not have this record. In the protest petition I mentioned all of this."

The Bench inquired what material on larger conspiracy could be gathered from the transcript referred to by Mr. Sibal - "The direction came from top, where is that evidence?"

Mr. Sibal pointed out that the same had to be investigated by SIT.

Stating that he would make it good that there was indeed a conspiracy, Mr. Sibal continued:

"Starts from Pg 90, same volume. Kindly see pg 93 bottom … What else is larger conspiracy. Manufacturing bombs all over Gujarat. I will show you that bombs were coming from Rajasthan. SIT did nothing about it. They did not arrest any of them, who have accepted commision of the act. My concern is not top officers. I don't want to accuse A or B, but this cannot be tolerated."

Identifying the larger issue for the future he stated - "My concern is much greater and my concern is for the future...Communal violence is like lava erupting from a volcano. It is institutionalized violence. Wherever that lava touches it scars the earth, it never goes away - it is fertile ground for future revenge."

He shared his personal experience that he had lost his maternal parents to communal violence in Pakistan - "I don't want to accuse A or B. But you have to send a message to the world that this is unacceptable. This was the kind of evidence SIT had before it. What was it doing?"

Transcripts not considered by SIT

"Were these transcripts(of the Tehelka tapes) considered in the closure report?" asked the Bench.

Mr. Sibal informed that court that it was not considered in the final report and it was discarded stating that at best it would be an extra-judicial confession. "He said that he had read it out from a script and SIT believed him. This is shocking. Anil Patel is not mentioned in the closure report... and the statement is not recorded. Just see how Babu Bajrangi is dealt with. Instead of investigating him accepted what he said...This man should have been arrested, what he said had to be investigated, to find out who all were behind it."

The Bench wanted to know - "What is the allegation against him in your complaint?"

Informing the Court that at the time of filing the complaint the information regarding these persons were not available, but all information had been provided in the Protest Petition.

Refusing to go into individual case, the Bench asked Mr. Sibal to provide an overview.

The Bench also pointed out that the real question is to identify the issue of the Protest petition and find out if that has been dealt with by the Magistrate and the HC - "That is the real question we have to look at. Meaningful exercise would be to see how it has been dealt by the Magistrate and HC."

Mr. Sibal reiterated that - 'our case is that the investigation was to be done by SIT. Whether Tehelka tapes and other evidence is sufficient to issue process is for the Magistrate to decide.'

Did not act on huge material on hate speech

Mr. Sibal submitted that "There is huge material on hate speech. No act upon at all." He further added - 'Evidence can be gathered only when statements are taken, when you got to the spot. Telephone not seized. What investigation had been done. The SC mentions about statement of witnesses."

"Not only petition, I have given evidence. But it does not find place in the orders of the Magistrate or HC." - submitted Mr. Sibal.

Rejection of Testimony

Sibal highlighted that the SIT discarded the testimony of the then Gujarat ADGP RB Sreekumar IPS on the ground that he was making the statement due to a denial of promotion

Referring to the questions raised by the Petitioner in the protest petition as indicative of the quality of investigation expected, Mr. Sibal stated -

"What are the questions raised at pg 315 that we wanted SIT to consider. This is the kind of investigation that had to be done. I am not saying convict anybody, why did the SIT not investigate anybody. Then at page 321 one other matter at controversy, Sree Kumar, he maintained a contemporaneous register. He had another officer sign the register in blank. Sree Kumar fills and files affidavits in Court. That testimony is rejected stating that because he did not get promotion he did all this. Sree Kumar's testimony is corroborated by other officers which is at pg 324. So, it should not have been rejected. Independent assessment of violence is made by Sree Kumar. This goes on, Milords. There was intelligence report which showed that the kar sewaks went to Ayodhya, then they came back. When they were going to Ayodhya they were carrying Trishul. I am corrected that by the time these messages were sent SreeKumar, he was not part of the Intelligence dept. He came later, he had access to those. None of this is looked at. This is what happened before 27th of February, when the tragic incident took place. This was all before the magistrate. We got it all from SIT. We came to this court and got access to these documents from SIT. With greatest respect, no Court can on this evidence say that there was either a conspiracy or not without any investigation. Our case is that an investigation is required. Otherwise what is the need of the SC for setting up the SIT."

Sibal also submitted that there were factors pointing out to complicity of the police and the administration which were ignored by the SIT.

"In Naroda part of it was relevant and it was presented and the man was convicted. Magistrate in this, did not look at the record. The High Court says that Mag. could have asked for further investigation, but on material they found no case. In Vol 14, there is an order of this court where we sought records from SIT." responded Mr. Sibal.

"This record was there in same case?" - enquired the Bench.

Mr. Sibal informed the Court "Not in Godhra Trial. Not in any other proceeding...64 boxes of these materials were filed before the Magistrate's court and in no other cases. Not in Naroda, not even Gulbarga. These documents were not filed anywhere."

He further added -

"We went to the Magistrate asking for the supply of these boxes...80% of material was supplied to us. But, the Preliminary enquiry statements and all were not supplied. We came to SC and agitated. In Vol 14 pg 935 is the order passed on 17.01.2013 by this Court... Kindly See pg. 933. The witness statement was not supplied to us, so we came to this court."

Reading the order of this Court of 17.01.2013, Mr. Sibal submitted - "Since the statements are signed the same shall be treated as 161 statements. Any 161 statement has to relate to an FIR. This was sui generis proceeding that was taken by the SC on the basis of the complaint. Not related to any other case, not to be used for any other case."

On the second point regarding 161 statement Mr Sibal apprised the Court that "both Mr. Rohatgi and I were not quite right. Actually 161 statements were recorded."

Seeking clarification, the Bench asked - "Were the statements considered as 161 statements on the basis of the order?"

Mr. Sibal responded - "Initially it was, but later 161 statements were recorded."

Thereafter, the Bench enquired - "What is the date of closure report?... 08.02.2012"

The Bench clarified that - "It is treated as 161 pursuant to the order."

Mr. Sibal continued with his arguments -

"One other fact that I want my Lorships to note. Vol IV of SLP Paperbook At pg 760, this is the Impugned order of the Magistrate. (Heard Mr. Jambuwallah, who was PP only in this case, in Gulbarga SPP was completely different) This Indicates that they were treated as separate cases. Kindly come to pg 394 (in the protest petition Volume). Our submission is that they had ample intelligence inputs prior to Savarmati reaching Godhra. Had steps been taken as per police Manual perhaps could have saved this national tragedy. Pg 396 bottom. Then Milords lets now leave out provocative behaviour of certain people. Come to pg 404 of this Volume. This is hasty disposal of dead bodies of Godhra victims and telephone conversation in the issue of postmortem. Postmortem was done on railway platform itself. Unheard of but still, who called the doctor, these doctors should have been examined with respect to haste in postmortem."

SIT blames only Mamlatdar

He added -

"Photographs were taken of these unidentified mutilated bodies which created an atmosphere of disgust, revolt, revulsion...No one's phone was seized. That is the best evidence possible. Never arrested these people. Kindly come to 410. (About the decision to handover the body to a VHP strongman.) Pg 420 Parading of the bodies was also part of the conspiracy. Kindly see para 512...Yet no curfew was declared in Ahmedabad until 12:45 on that day. This evidence (of handing over bodies) was concealed by SIT. Then we give some other telephone data. Now come to 422. It says that DGP Chakravarty (A25) also said the decision to transport bodies to Ahmedabad was taken by the Government. Then kindly see para 519... Bizarrely, When the matter comes to who decided to hand over the body to VHP, the SIT blames only Mamlatdar. Departmental inquiry was instituted. Mamlatdar in his testimony said that the bodies were handed over on the instruction of Jayanthi Ravi, who was DM, Godhra. He denied and said the decision was taken by the Mamatdar. At this state of evidence, wasn't it to be investigated. Who is telling lies, who is not. You have to find out who is telling the truth."

Considering that it was not possible for a Mamtaltdar to take a call like handing over bodies to VHP, Mr. Sibal submitted -

"See Para 521, You catch hold of a Mamlatdar and conduct departmental enquiry on him. And there is no other investigation. Kindly come to Para 525, at the bottom, Milords. Then, preparation of violence after Godhra. What speeches were made, who made speeches - had to be investigated. Then we go onto Para 536. Kindly come to Points for further investigation. These have records of hate speeches. I have a seperate volume which tells what these speeches were. Then come to para 555 pg 436. [Reads para 559] Who got these RSS workers, who gave messages at 3 in the morning. You have to do an investigation for that. What had happened is that these records were with the Govt, they claimed that they had been destroyed. They were produced for the first time by PC Pandey after 15.03.2011. It is from this record we got all evidence after we came to this court. Thereafter we filed a protest petition."

"What had happened is that the Govt had records but they claimed that they had been destroyed. They were produced for the first time by PC Pandey, former Ahmedabad CP, after 15.03.2011. Thereafter we filed a protest petition. He ought to have been summoned by the SIT".

"What was the SIT doing? This was set up by your Lordships. They didn't do any investigation. Article 21 says you have to protect people in accordance with procedure by law. If you violate that you are an accused." - reckoned Mr. Sibal.

Further elaborating Mr. Sibal stated -

"If the investigation is not done then the only recourse was a protest petition. Now, Documentary Evidence. Please come to para 559. Violent messages are given. We placed it before the Protest petition and gave it to SIT. Police were escorting a VHP fellow (Archarya Giriraj Kishore) to Solah Civil hospital. Even when you are short of forces, you don't have manpower...Police acknowledge that he was present at hospital. Kindly see pg 440. He reaches the hospital and asks for sending 'bandobast'."

Violence in different parts of the State ought to have not investigated for conspiracy

Mr. Sibal submitted -

"Kindly come to pg 571. Communal tension is likely and preventive step to be taken - That is the report from the ground. Then Milords, kindly see the last sentence of 571. We are saying there is empirical evidence, there was coordination, police was taking sides...and no preventive steps were taken...Messages were sent from police on the ground.Not even responded to. Coming to 447...Then come to 448 - Communal mobilization and widespread incidents. In different parts of the State, violence took place and we say it should have been investigated to identify the conspiracy. Kindly see 601 - major incidents set out here. Then SIT on the role of Tandon(the commissioner of police in charge of Gulbarg area) at 463. In these communal riot cases police lodges FIR. I have lost someone, if I go and tell the police, who killed my mother, father...they will not accept it. I am telling your Lordship what happens on the ground. They can implicate anybody. There cannot be a second FIR in these cases. So, these information have to be recorded in the first FIR itself. This happened in this case."

SIT changes position with respect to role of Tandon

Mr. Sibal pointed out that -

"The role of Tandon was to be investigated as per the preliminary report of SIT, but the position of SIT finally changed. At 466 - You have documentary evidence that we have pointed out. It says take preventive actions. What did the officers do. There may be rational explanations, but they need to be investigated. 3000 people who gathered at the hospital in Ahmedabad were swayam sewaks. They must have been informed early in the morning. By this time no curfew was declared. What was the commissioner of police doing? Kindly See what the magistrate does. He says I am not asked by SC to do further investigation so he washes his hands on this."

Mr. Sibal expressed his concern - "What is the truth, what is the lie, what is fact. It needs investigation. If none of the courts gives direction then it would remain in the records of the Court."

Discussing the element of conscpiracy, Mr. Sibal noted -

"Nothing is done about any (hate speech) of this. Common element in the conspiracy was to teach a lesson. The manner in which it was done looks like there was a meeting of minds. I for one cannot say, nor can anyone say. This is the quality of evidence, still the Magistrate does not consider, the High Court does not take up. Stationing ministers in control rooms - we have already discussed that. Kindly have Para 641. Delay in calling the army at para 650."

"At pg 482- curfew order. Quite frankly this is a job that should have been done by SIT not us. Your Lordships can imagine the attitude of SIT. Then Milords, at pg 499 See what happened in Bhavnagar. The gentleman in charge was proactive, went from place to place, made sure people did not die. So, no violence took place there. Mehsana was the third worst at pg 505."

Sibal then submitted that persons affiliated with the VHP were appointed as the Public Prosecutors.

"First you have VHP people calling for riots, and then you appoint VHP people as prosecutors", he said.

"VHP is in the act, then they are appointed as PP and we call this procedure established by law. Is this not a matter to be investigated? 55 people were released on bail when Dilip Trivedi was appointed as Special Public Prosecutor. Why did you (PP) not oppose (bail and anticipatory bail)? Were you told to not oppose? This is what SIT would ask but where is that investigation. Kindly look at pg 509. Even after telling in protest petition they did not investigate. Milords kindly look at the bottom on 509. What happens in many of these national tragedies is that the culprit is somebody else and the victim is somebody else."

Sibal pointed out that SIT has not filed any SLP in the Supreme Court against the judgment acquitting Maya Kodnani. "It shows!", Sibal says.

Mr. Sibal added -

"You do not even put names. Say that at night time they couldn't be seen. We have given individual proof, Milords. This material was for what purpose? To take cognisance and put the matter on trial. Some needed investigation, but in these cases there was material to take cognisance straight away...Was SIT part of this? I am sorry I have to say this. No normal investigating agency would discard this evidence."

"Deliberate loopholes were left in the investigation and there were no sincere attempts to nab the culprits....No investigator with a sense of justice will discard this evidence. No judge with a conscience will discard this evidence", he submitted towards the end of his arguments for the day.

The Bench noted that Mr. Sibal in his Protest Petition was indeed hinting at a larger conspiracy.

Agreeing to the same, Mr. Sibal submitted - "We are suggesting a common chain."

Mr. Sibal completed his submission till Vol IV. Vol V onwards to be taken up tomorrow.

Click Here To Read/Download The Order