'This Is A Case Where The Majesty Of Law Has Been Deeply Injured': Kapil Sibal Concludes His Arguments Before Supreme Court In Gujarat Riots-Zakia Jafri Matter

A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar took up the part heard matter for further hearing. Taking the Court through a range of voluminous documents and notes, Mr. Sibal concluded his arguments on behalf of the Petitioner.

Congress MP Ehsan Jafri, Zakia's husband was brutally slain in the Gulberg Society massacre, a day after the Sabarmati express was torched in Godhra. On 8th June, 2006, Zakia had filed a complaint against some of the top officials and ministers including the then Chief Minister of Gujarat for, inter alia, inaction, complicity, conspiracy. Non-action on the complaint by the State police forced Zakia to approach the Gujarat High Court seeking the complaint to be treated as an FIR. On dismissal of the matter by the High Court, she moved the Supreme Court. The Apex Court directed the Special Investigation Team, which was already constituted to investigate the Gujarat riots, 2002 to also look into the complaint filed by Zakia. On the direction of the Court, the SIT filed a closure report on 8th February, 2012 giving clean chit to the accused without granting Zakia Jafri an opportunity to be heard. She had filed a Protest Petition challenging the investigation conducted by SIT, before the Supreme Court, which directed the Magistrate to look into the closure report along with the Protest Petition. The Magistrate dismissed the petition refusing to take cognisance. The High Court also did not find fault in the SIT closure report, but partly allowed the revision petition in October, 2017 granting Zakia Jafri the liberty to seek further investigation regarding the larger conspiracy in the Gulberg Society massacre. Thereafter, Zakia approached the Supreme Court in 2018 vide the present Special Leave Petition.

Two limbs of his arguments

At the outset, Mr. Sibal clarified the two limbs of his arguments. The first being the fact that in the present proceedings he has been dealing only with undisputed facts. The second limb suggests that he has limited himself to only those disputed facts that he felt needed further investigation.

"I might just clarify that in these proceedings ever since I have made my submissions I want to preface my submissions by saying that I am dealing with undisputed facts...I am only dealing with undisputed documents and statements. Second, wherever there is dispute in facts unless there is requirement for investigation I shall not enter into that. Therefore, there are two limbs of my argument."

Recapitulation of crux of submissions

Recapitulating the crux of the submissions made on previous occasions, Mr. Sibal drew the Court's attention to the various issues, including, police inaction, complicity and failure of public servants to do the needful, admission of police inaction, the collaboration of police officials as reflected in the Tehelka tapes, mob mobilisation in Solah Civil Hospital, non action by fire brigade, no preventive arrest, no preventive action taken to curb the violence that emanated from the bandh.

"I was on Vol III. Let me recapitulate. Now, Milords if you look at Page A - Issues not dealt with by the Magistrate and High Court...Kindly have a look at Page A. I have time and again demonstrated about police inaction, complicity and failure of public servants, admission of police inaction in Tehelka - that is all part of the heading. Mob mobilisation in Solah Civil Hospital, no investigation...Non action by Fire brigade, only 2 preventive arrests that too from Muslim community, violence because of bandh because no action taken. Come to page I - delay in deployment of army, no investigation."

Members of the statutory, constitutional and parliamentary bodies corroborating evidence not examined by SIT

Mr. Sibal emphasised that official records pertaining to the above-mentioned issues were corroborated by reports of statutory, constitutional and parliamentary bodies. He also expressed his dismay that the SIT did not bother to conduct an investigation in this regard.

"All these corroborated by NHRC, Citizen's Tribunal, Women's Parliamentary Committee, and no members questioned."

Surprised that the basics of criminal investigations were not followed by the investigating agencies, he remarked -

"In the criminal offence, the first thing you do is take the statement of the victim...No statements were taken...Why were the victims' statements not taken? Will you call it negligence, will you call it oversight or will you call it turning a blind eye."

Statement of Lt. Gen. Zameeruddin Shah not recorded by SIT

Eventually, Mr. Sibal went to the issue of deployment of the army that he had not touched upon before. He referred to a memoir of Lt. Gen Zameeruddin Shah, who led the army operation in Gujarat during the riots. He argued that the SIT had knowledge of the army operations (Parakram and Aaman) and the fact that Mr. Shah was leading it, but his statements were never recorded by SIT.

"Now deployment of the army. [Referring to the relevant page] This is a memoir of Lt. Gen. Zameeruddhin Shah who led this operation in Gujarat. His statement was not recorded. Were they given quick access or not? If they were not given quick access, then why not?"

At this juncture the Bench enquired, "When was the book published? Was it available?"

In response Mr. Sibal arised the Court that probably the book was not available with SIT since it was published in 2018. However, he highlighted his argument was not the availability of the book, but the information that Mr. Shah was leading the operation, yet the SIT did not record his statement. He submitted -

"Probably not. But my argument is, his statement was not taken."

Reading the relevant portion from the memoir, he stated that when troops reached the airfield they were not provided with transportation.

"They remained stranded at the airfield [No transportation provided to them for a long time]. I am not using this as substantive evidence, had they taken his statement all these would have come on record."

Mr. Sibal submitted that the Lt. Gen in his memoir had stated that 'The initial reaction of civil administration is tardy.'

Highlighting the lack of investigation, Mr. Sibal added:

"This is consistent with other evidence. He (Lt. Gen) could not even contact the public servants...Kindly see pg 322. This was a part of the official record, they could have investigated it...All of this was documented, why was it not investigated...When they landed, whom they called, what was the response, why were they given delayed access."

He also informed the Court that the Petitioner had filed RTI in an attempt to get information in this regard, but the same was refused considering that these are matters of national security.

"We tried getting information about Operation Aaman, but RTI did not allow it...He (Lt. Gen) got Sena medal for restoring peace in Gujarat… somehow he did not have very kind words to say."

Hate speech - not dealt with by the Magistrate; lapses in SIT investigation

Coming to the issue of hate speech, Mr. Sibal expressed his displeasure that the Magistrate did not look into the material of hate speech before it.

"Now, Vol IV on hate speeches. Justice Khanwilkar has rendered several judgments on hate speeches, I have an opportunity to rely upon them...Hate spews out naturally through the media for inciting violence, but the Magistrate does not deal with it. It deals with only one individual that I am not considered with."

Taking the Court through the material on hate speech, Mr. Sibal referred to heading dealing with hate speech around the Godhra incident, arrival of Girijaj Kishore, VHP Vice President, Vernacular press - Sandesh Newspaper. He emphasised on the statement made by Ashok Narayan to SIT -

"Kindly see Page M. This is Ashok Narayan, their officer. He says Govt. was noncommittal in taking action. This is not my statement, this is his statement to SIT."

He continued by referring to the post facto claims by VHP leaders, who in an interview to Senior journalist, Sheela Bhatt, then with rediff.com had detailed how the VHP executed well laid out plans including being armed with Government data and list of electoral rolls to target minorities. Mr. Sibal argued that these documents were with the SIT even before the protest petition was filed.

Mr. Sibal moved on to the report of the Citizens' Tribunal. It was further brought to the notice of the Court that though the report was with SIT, no statements were collected and no further investigation was conducted in this regard.

Thereafter, the Editors Guilds' fact finding mission report was referred to -

"Come to pg. 19, Milords. Under the heading Pamphlets and handbills. A pernicious piece of hate propaganda officially disseminated by the VHP calls for the economic boycott of the Muslims. This was admitted to the Indian Express by the Parishad Gujarat treasurer."

Pointing out the violence that ensued the distribution of vicious pamphlets and handbills, Mr. Sibal lamented that all the material referred therein was already with the SIT, which had very conveniently chosen not to look at them -

"Milords this is a wealth of material with SIT, I cannot go on and on...they did not investigate."

The Guilds team had in fact attempted to verify the contents in the pamphlets that were so widely circulated, but none of the officials could corroborate the same. Mr. Sibal argued -

"These false propaganda to incite violence was circulated. None of this was investigated."

The Bench enquires the date of the report, whether it was published in 2002.

Mr. Sibal responded, "The Editors' Guilds Report? This was available with SIT before the order of this court on 12th Sept....The SIT did not have to rely on my complaint, they had these documents."

With respect to the issue of examining the persons who had used the media with impunity to make provocative statements inciting violence, the Guilds' report seemed to have embraced the recommendation of NHRC. Mr. Sibal submitted:

"Kindly See pg. 28. We (the Guild) concurred with NHRC's recommendation that provocative statements made by persons to electronic or print media should be examined and acted upon with the burden of proof shifted on such persons to prove or contradict their statements...Now the question is why did the Magistrate not look at it, why did the SIT not investigate it. Nobody looked at it "

The Bench suggested that, "That we don't know is an accurate statement because the judgment of the trial Court gives an impression that it was heard for quite some time but never such detailed order was passed at this stage...High Court has also gone into all the relevant documents that you have pointed out."

However, Mr. Sibal was firm on his submission that neither SIT nor the courts below have dealt with the documents. He stated -

"I would love to see where the HC dealt with this, the Magistrate or even the SIT. The SIT, Mag and HC were dealing with a few issues - 27th meeting, hate speech by the then CM, castigating Sanjeev Bhat. I am not dealing with any of those controversial issues. Everything else that was part of the record was not dealt with. I am dealing with that...We gave 28 spiral bound documents to the Mag and to HC to simplify documents for them"

Mr. Sibal added that he is not looking for opportunities to point figure at individuals, but is on a larger issue dealing with the polity of the country -

"It deals with the polity of the country, it deals with the manner in which institutions are to act in a National Emergency. This was a national emergency. What happened at Sabarmati resulted in a National Emergency...I am not concerned with individual. I am concerned with how the majesty of law deals with such issues, when men behave like animals. That is what I am concerned with...Therefore, I am looking at my own constitution and saying to myself, can this be allowed in the rule of law in our system...I am not looking at today, I am looking at tomorrow."

Concerned that the Magistrate does not delve into the crucial aspects of the matter, Mr. Sibal argued that -

"The Magistrate goes to the extent of saying that I would not order further investigation because the SC has not directed me to do so. And the HC says the Mag is wrong, you can go back to Mag and ask for further investigation."

He clarified that the documents provided by him in the present proceeding are only with respect to the issues that the Magistrate and the High Court had not dealt with -

"Our Vol. do not deal with the issues that have been dealt with by the Mag and HC."

Provocative Statements and Role of Media - not investigated

Reading from the report of Citizens's Tribunal, Mr. Sibal argued to establish the role of the media in facilitating the eruption of violence across Gujarat. Especially the role of Sandesh as elucidated in the report was emphasised along with the inaction on the part of the police to stop such mischievous reportage.

"Sandesh and Gujarat Samachar have been playing a communal role since the BJP returned to power...this ought to be looked into so that they don't merely act as merely Govt. agents...In the carnage, role of Sandesh was particularly mischievous with some smaller publication newspapers…The police too stands indicted… by not taking action."

Mr. Sibal demonstrated that armed with the tool of fabrication, Sandesh had intensified the communal violence by rampantly spreading fake information, especially relating the incident of bogie burning to terrorist attacks. Thereafter, he submitted -

"Indiscriminate firing from Fatehpur mosque was complete fabrication. If you fabricate stories and publish them on the frontline newspapers, what would happen? What had happened would happen...Kindly see pg 45 - Hate speech, rumour mongering and factual reportage has become a critical issue...Hate speech at this level is a threat to internal peace and security...Kindly see pg 60. This is an interview of Shasthri with Sheela Bhatt, the famous journalist who wrote this piece, 'It had to be done' VHP leader says of riot...Come to pg 69. Sandesh Newspaper. See item 4 there, this is 20th Feb, 2002. 'Avenge blood with blood'. This becomes a headline."

He explained the strategy adopted by the newspapers. They published the provocative headlines in bold front and the portion where they refute those were in small prints, which indicate that some of the newspapers had participated in inciting violence. Mr. Sibal submitted -

"Kindly come to the bottom. Milords, they write something and then they refute it, in small print and they publish the headlines in big print...Police indicated no such happening [incidents of rape] but they still put such headlines. They write in small print that the police deny it, but the damage is already done."

Mr. Sibal referred to the portion of the report of the Citizens' Tribunal, which indicated that there were rifle training camps and Bajrang Dal workers were given trishuls and trained to use them. Provocative leaflets were distributed without any name of the press, which Mr. Sibal argued, was a part of the conspiracy that remained investigated by the SIT.

Next, the Court's attention was drawn towards the statement of Shreekumar and his letter handed over to the Government. He had also elaborated on police inaction and touched upon the role of the media.

Enquiring about the statement, the Bench asked, "This statement was recorded by whom?"

Mr. Sibal responded, "SIT. This is 2009. 99% of the documents were with SIT prior to the SC order."

He continued with the statement of Shreekumar -

"Intelligence was available but no response from CP Ahmedabad...I had specifically pointed out that extremists of VHP and Bajrang Dal were contemplating action...Media played a decisive role in keeping the momentum alive."

Mr. Sibal added that other police officials like Rahul Sharma and Upadhyaya had given information to the Government about the outbreak of violence, but no action was taken by the administration to curb it.

Thereafter, he sought the permission of the Court to refer to a few judgements on hate speech:

"(2021) 1 SCC 1 at page 42 where your lordship deals with hate speech as a heading. Your Lordship quotes Benjamin Franklin and then... Your Lordships look at the different jurisdictions."

He emphasised:

"'Hate speech targets a group' - Important here... 'Speech should cause harm.' 'Context of speech important'...pg 80, para 107, this is important - 'actual utterance of words not just a thought'. This happened here (Gujarat)."

Mr. Sibal cited another judgment, wherein the Supreme Court had stressed on the duty of state machinery to act promptly to curb the consequent incidents of hate speeches:

"Kindly see another judgment, (2004) 4 SCC 684 at pg 692 and 693 para 7 and 8...'The administration has a duty to see who the speaker was'. In this case [2004 judgment referred to by Mr. Sibal] 144 order had been issued...This is a constitutional duty because it pertains to the security of the state. This, the Citizen's Tribunal also says. Prohibitory order can be passed, so why were they not passed. Why did the authorities in Gujarat not take swift action. This is the State's duty to find it."

Documents before SIT - but not examined

He listed out the documents that were before the SIT, but still not analysed and examined by them:

"Documents produced by ex DGP, transcripts of accused, transcripts of Ashish Khetan, phone call records, Rahul Sharma Statement, CD containing tower detail, Analysis of Phone record, - None of this relates to Gulberg...PCR record, with them, Non response of fire brigade part of their record...Reports of statutory bodies, all is with them. Statement of election commission, that is with them. Pamphlets, Tribunal's report,Guild's report, Tehalka transcripts in toto all with them."

Supreme Court order of 12th Sept, 2011

Resorting to the final order of the Supreme Court of 12th September, Mr. Sibal submitted it was clear that the issue in Zakia Jafri's complaint was treated by the Court separately from the Gulberg massacre. The Supreme Court had directed the SIT to collect all evidence and file a chargesheet. However, if it is not satisfied that prosecution is required to be initiated, the Court could hear the complainant and make the documents available to her. Mr. Sibal emphasised that the Magistrate was to act on the complaint, but not deal with it. It was supposed to deal with the material before it. He submitted -

"Now what is the direction of the Supreme Court in 2011. Prior to 12th Sep, the Court was monitoring SIT. SIT had all these documents. Now read para 10. [Court had Directed to file the entire material before the court that had taken cognisance of Gulberg.] In addition to what it had, the amicus reports relating to the trial of the accused were also available. Court intended that this material is collected by SIT, they will file a chargesheet and conduct further investigation if necessary. Kindly note that in para 10 the court states that the accused will be tried. In para 11 assuming that SIT says no need to prosecute, court was to issue notice to complainant and make documents available to her. It had nothing to do with Gulberg. This Court acts on the complaint, but does not deal with the complaint. It deals with the material before it. The argument that Mag. makes that it was with respect to Gulberg, it was not so. I just wanted to clarify."

Statement of Rahul Sharma, Shreekumar - discarded

Mr. Sibal takes the Court through the statement of Rahul Sharma, who though instrumental in curbing violence at the threshold in Bhavnagar, was later transferred out. His statement reflects the involvement of political leaders. Mr. Sibal submitted -

"Kindly come to Rahul Sharma's statement. This is recorded on 2nd of July, 2009. Second para. He is talking about 28.02.2002. [Sharma suggested criminal action against Sandesh] [Additional forces not made available to Sharma in Bhavnagar] He was transferred out of Bhavnagar...[Sharma said mobile phones were used in a big way in the riots] Here is a police officer saying mobile phones were used. Then why did you not seize the mobile phones. The call records were never investigated...[Sharma narrates how political leaders approached him for bail of accused] So Milords, this shows political interference. He [Sharma] was transferred three days later. Mobile call data records are set out here. 117. And the conclusion, Milords at pg 124."

Again coming back to the Shreekumar's statement Mr. Sibal pointed out that it is corroborated by Maniram, the then Additional DG - Law and Order and Kaushik, who succeeded PC Pandey as Commissioner of Police.

Issues not dealt with by the Magistrate and the High Court

Mr. Sibal highlighted the issues brought to the forefront by the Petitioner, but not dealt with by the Magistrate or the High Court.

"Now, Compilation Vol VII. Issues not dealt with by the Mag. and the HC. Now, Pg A is crucial issues raised, not given consideration by SIT...Pg C is bandh itself and no preemptive action taken, Pg D Citizens' Tribunal and Protest Petition. Pg I Post mortem, Pg K Handing over bodies to private persons. Presence of Ministers in Control Room, Pg R Doctoring of FIR, Pg T Failure of SIT investigation. No investigation done. Statement of accused taken and accepted. Pg. V. Bias investigation. Pg X buildup, Pg GG missing documents from SIT records, translation of document not done. Page JJ onwards documents, contents and reference. Then Skip all these. Pg 77 Statements of Zardafia, Jaydeep Patel, Ashok Bhat."

He discussed the manual that deals with photographs and the manner of publication, accentuating the aspect of non-investigation of the same by SIT.

"Now come to pg 96. This is a manual as to how you deal with photographs. Why were the photos allowed to be taken, published. Pg 97 vi (i) prohibition to take such photographs and published. Why was this investigation not done?"

He pointed out the contradiction in the statement of the DM with respect to the dead bodies given away to Jaydeep Patel. In this regard attention was drawn to the statement of Mamlatdar. Thereafter the statement of Dhananjay to SIT in writing was relied upon to show the manner in which records in the control room were destroyed.

"[Records were destroyed] Kindly see the reason at 137 as to how the records at Serial 1 to 5 were destroyed by burning. Now, Raju Bhargav, SP at Godhra - They don't even ask him why photographs were allowed to be taken."

For establishing conspiracy, investigation is required.

Indicating that proper investigation is crucial for establishing conspiracy, which is more often than not solely based on circumstantial evidence, Mr. Sibal argued: "Your Lordships asked me about the larger conspiracy. My answer to you lordship is, conspiracy is not something that can be established. It is only based on circumstantial evidence and that will come about if investigation is conducted. There is prima facie proof reflected from the Tehelka record itself. Question is who all were involved. That would only depend on investigation. That is why we are asking your lordships that there should be some investigation. The Supreme Court never said look at larger conspiracy. It said file a chargesheet based on evidence and try the accused..It(SC) was looking at the various offences that were committed. No Court can determine today how large the conspiracy was (due to lack of investigation)."

To show that conspiracy can be established seldom directly, and is a matter of inference, he placed reliance on (2003) 8 SCC 461 Nazeer Khan v. NCT of Delhi.

He remarked:

"If you attack a community, the object is to attack a community. Even if there was no communication, still would be termed as conspiracy because the object is unlawful...Had the SIT looked into all these I would have had no grievance. We are at a stage where no investigation is done."

Citing two more judgments [(2001) 7 SCC 596 at pg 606 para 23 and (2009) 1 SCC 441 at 466 para 67] Mr. Sibal argued that the Magistrate could have lodged a separate offence and try the same -

"If you have not looked at the evidence, if the Magistrate so finds then an offence in that regard can be lodged and tried. If evidence is on record, and there is no application of mind then the court can do this."

Magistrate's order - 'The judgment meanders in many ways, it's difficult to ascertain what it holds'

It was pointed out that the Special Public Prosecutor had proceeded on the basis of the complaint and not the documents. Mr. Sibal submitted -

"PP talks about the complaint and not about the documents that SIT had. He (PP) states that sting operation is also out of place at that stage...At pg. 186. Then pg. 187, he quotes the Supreme Court judgment…"

He noted that the defence had drawn a distinction between the complaint by Mrs. Jafri and the one on Gulberg massacre -

"Then, Milords arguments of Defence. Defence states that the complaints of Jafri and Gulberg are different. None of this is now relevant as SC had directed that based on evidence collected SIT to file a report."

Referring to the inference drawn by the Magistrate, he added:

"(Mag) Agreed with the argument of PP. Mag says SIT investigation is in accordance with the direction of the Supreme Court. He(Mag) was to look at the evidence, not whether it is in accordance with the direction of the Supreme Court."

Asking whether the copy of the judgment was a translated one, the Bench suggested that the language in the order ought not to be read literally since the essence of the language would have been lost in translation. The Bench further observes that the judgment of the Magistrate is a long one and must have considered all aspects.

Mr. Sibal emphatically argued that though lengthy it was not exhaustive. All aspects were not dealt with by the Magistrate.

Expressing his dismay that the Magistrate had refused to look into the material on record stating that he did not have the power to look into the material collected before the Supreme Court order dated 12.09.2011, Mr. Sibal submitted -

"Milords, what the Ld. Judge is saying as I understand it that before 12th Sep, SIT had already been set up by SC and further investigation was going on pursuant to which this evidence was collected. He is saying that the investigation is before 12th Sep and I have no power to look into it. Then he talks about conspiracy...Then pg 227. This is the decision of Gov. to get the dead bodies of those who died in Godhra."

Referring to the inadequacy of the Magistrate's order Mr. Sibal points out -

"He does not give a finding on Godhra trial as the matter is pending before Sessions Judge. [Mag says]The argument that the procession of dead bodies helped in spreading violence could not be accepted at this stage. Then at what stage can it be acceptable...[Mag. says] No untoward incident had taken place. He said Govt. took law and order measures...This is contrary to what is on record. [Mag says] Handing over a dead body to a private person is not beyond the law...Then he talks about complaint of Ashok Bhat and Zadeja. He accepts what the SIT says."

Mr. Sibal emphasises that not the documentary evidence provided by complainant, but the evidence with the SIT had to be looked into by the Magistrate.

Taking the Court through the treatment of the Tehelka tapes by the Magistrate, wherein the veracity of the tapes were questioned by him at the threshold stage of the issuing process, Mr. Sibal argued -

"Then we go onto the next Vol. At 273 there is an allegation I am not dealing with. Then Milords, Kindly see how he deals with Tehelka tapes at pg. 281. [Mag says]Telecast of AajTak is not mentioned in the complaint. It was with SIT, it could not be with the complainant. He is dealing with the complaint and not the evidence that was with SIT. At the stage of issuing processes he talks about veracity of tapes. [Mag says]."

Rivetingly, the extra judicial evidence of only one person, i.e. the ex CM is considered by teh Magistrate. Mr. Sibal submitted -

"Extra judicial confession is weak piece of evidence and requires corroboration. He deals with the extra judicial confession of one person. Where is the rest of it that I had put before your lordship...That is all he deals with. Anil Patel, Babu Bajrangi, there are six seven others. He has not even looked at it. Neither he looks at it nor HC looks at it which is why we made those compilations. The entire discussion is then about conspiracy."

Further pointing out the issues not dealt with Mr. Sibal added:

"No discussion on arm buildup, SIB messages prior to Godhra, fire brigade not answering, on prevention of bandh, VHP lawyer collaboration. He does not deal with tapes. He deals with 27th Feb meeting,Sanjeev Bhat, statement of ex CM,rest of evidence he has not dealt with it."

Stating that the Magistrate refused to look at evidence in protest petition and only looked at the complaint, Mr. Sibal argued -

"He says that in the protest petition additional evidence is brought about, he says I'll not look at that only. What evidence, it was from the official record. He only looks at the complaint.That is not what the SC had said. [Mag says]Court had only power to see Gulberg conspiracy case...Then he deals with NHRC...So the fact is that SIT did not ask for material. These reports were with SIT, part of the document with SIT."

Mr. Sibal informs the Court that even though the Petitioners had a whole volume dedicated to hate speech, the Magistrate had not dealt with it. He stated:

"He (Mag) does not deal with hate speech.We have one volume for hate speech. He does not look at that. He then deals with the role of police officers...You (police) don't answer fire brigade, you don't do preventive action, all that is irrelevant for him (Mag). This is all he (Mag) does w.r.t. the officers concerned."

He added that without looking at the material, the Magistrate had refused to take cognisance of offences under Sections 153A and 153B of IPC.

"Without referring to any material of hate speeches, all the material I had pointed out in Vol IV see what he (Mag) says - S 153A is not satisfied. He rejected both S. 153A and 153B. This was w.r.t the ex CM. All of the hate material is not considered."

Mr Sibal added:

"Now you know what he has taken into consideration...I say with humility, none of the material. And the material based on a disputed question of fact, I have not argued.

High Court refused to interfere

Finally, Mr. Sibal took the Court to the judgment of the Gujarat High Court, which had attempted to dilute the distinction between the present complaint and the Gulberg incident.

"Now, let's go to the HC order. Upto page 70 is the background. Kindly look at the bottom, you'll find judicial evaluation….Pg 72 now, para 10.3...So he says all that was done (S.173 investigation) prior to 12th Nov (final order of SC)....[HC says]The conspiracy was w.r.t Gulberg society. None of these evidence could have been taken into account in Gulberg as per SC judgement of 2013. [HC] Says it cannot be considered as an FIR."

Omission of the High Court in addressing the issue of handover of dead bodies to private citizen had been highlighted by Mr. Sibal.

"Kindly see at pg 94, the issues he captures. The whole issue of why dead bodies were handed over to Jaydeep is not discussed."

Arguing that the appreciation of the evidence pertaining to the destruction of the police control room record was not in the correct light, Mr. Sibal submitted -

"With respect to destruction of the police control room record [HC says] none of the messages were illegal, no objectionable messages...We were talking about PCR messages, they would not be illegal messages. How did it render finding that it was not illegal."

Much like the Magistrate the High Court also did not delve into the issue of hate speech.

"Hate speech is dealt with only in the context of ex CM. Then it [HC] deals with extra judicial confession...This is not a case of conspiracy, it is a case of offences. Larger conspiracy can be established only with investigation."

Resorting to the finding that it had limited scope of scrutiny as a revision court, the High Court had largely refused to interfere with the order of the Magistrate. However, Mr. Sibal pointed out that one aspect of the Magistrate's order that was held to be perverse by the High Court was that the Magistrate did not have the power to order further investigation.

"[HC says] Mag. has rightly concluded on all aspects, but one, that it could not have ordered further investigation. HC says we can move the Trial Court for further investigation."

Bringing it to the attention of the Court that none of the issues in Vol 7 was dealt with by the High Court, Mr. Sibal argued -

"Your lordships will find none of the issues in the 7 Vol has been decided. In some cases statements of the accused recorded and accepted...That is why we are here. Your Lordships have given us a hearing that suggests that only this court gives maximum leeway when issues of such magnitude come before it."

Mr. Sibal concluding his arguments by stating:

"The Republic is like a ship... that ship has to be made steady. It is your task to keep the Republic steady. It would be steady only if majesty of law prevails. This is a case where the majesty of law has been deeply injured...Despite actionable evidence the court has chosen not to look at it and misread the order of SC. In this case violence has been perpetrated through design which is reflected in the documents...I leave it then to your lordship to decide."

The Bench will continue hearing tomorrow. Mr. Rohatgi to argue for SIT.

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