Gujarat Riots- Two Ministers Of State Cabinet Positioned In City Control Rooms to Directly Interfere With Police Functioning: Kapil Sibal To SC In Zakia Jafri's Plea
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The Supreme Court on Wednesday continued hearing Zakia Ahsan Jafri's plea challenging the SIT report giving clean chit to the then-Gujarat Chief Minister Narendra Modi and other high functionaries in the Gujarat riots of 2002.At the outset, the bench of Justices A. M. Khanwilkar, Dinesh Maheshwari and C. T. Ravikumar told Senior Advocate Kapil Sibal, for the petitioner, "Mr Sibal, the...
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The Supreme Court on Wednesday continued hearing Zakia Ahsan Jafri's plea challenging the SIT report giving clean chit to the then-Gujarat Chief Minister Narendra Modi and other high functionaries in the Gujarat riots of 2002.
At the outset, the bench of Justices A. M. Khanwilkar, Dinesh Maheshwari and C. T. Ravikumar told Senior Advocate Kapil Sibal, for the petitioner, "Mr Sibal, the best course would be to not go backwards. The history of 2009 and 2010 may not help us today. We have to start from the 2011 order when this Court required the SIT to submit its final report. There was an option to file a protest petition. Show us what the report presented and what was the protest plea filed in reference to the report. Show us what ingredients of the protest plea were not taken into account by the magistrate"
Mr. Sibal began by indicating former journalist Ashish Khetan's sting operation on Babu Bajrangi from the Bajrang Dal, accused of leading the mob in Naroda Patiya—a Muslim-dominated locality—during the violence. Khetan had met him multiple times in 2007, as an undercover journalist with a spy camera, with Bajrangi confessing to his role in the massacre, and also speaks to the complicity of the police and the CM at that time.
Mr. Sibal told the bench that Khetan was a prosecution witness in one of the cases and that though the sting operation was relied on by the SIT in relation to other accused, it was discarded in the instant case.
"This gentleman has admitted that it is his voice in the tape and he has admitted to the conversation with Ashish Khetan. However, he makes the statement that he was told that a film was being made on Hinduism and that he was induced by Khetan to read the script given to him by Khetan. This tape was authenticated by the CBI as genuine. But the tape was not taken into consideration, that stage did not come, the closure report was filed and that was it. What is this way of the SIT dealing with it? Even the local police would not deal with it like this. And the court just looked beyond what happened. This is how these transcripts are dealt with! That because he is being prosecuted elsewhere and that matter is sub-judice, so I will not prosecute him here?", argued Mr. Sibal.
At this, Justice Khanwilkar asked, "Your grievance is that you have made 'larger conspiracy' allegations in the complaint which were not taken into consideration because the magistrate's inquiry was limited to Gulberg Society. How will this evidence of the individual role of individual accused, who were also accused in some other offence, help you?"
"We are talking about the entire state. If you limit it to Gulberg, that is the end of the matter", replied Mr. Sibal.
"Let us focus on how the closure report dealt with your complaint", said the judge.
"The report has not looked at any of this. There is not a sentence in the report on any of this. If there was, I would tell you. I am an officer of the court. All this material was with the SIT and it was not looked at", urged Mr. Sibal.
"The material is to be looked at based on the allegations", remarked the judge.
"These are part of the protest petition allegations. In the closure report, none of this has been looked at. Now, look at the protest petition. We will go allegation-wise", responded Mr. Sibal.
Mr. Sibal expressly omitted the allegations with regards to a meeting convened by the then-CM of Gujarat on February 27 where allegedly certain instructions were given in connection with the subsequent 3-day mayhem. "I don't want to enter into any political arena. I only want the rule of law to be upheld", said Mr. Sibal.
Decision To Hand Over Sabarmati Express Carnage Dead Bodies To VHP State Leader Jaideep Patel For Being Taken By Road to Ahmedabad
It may be noted that the protest petition urged that the handing over of the bodies to a private person was part of the larger conspiracy and that it was the alleged "parading" of the bodies in Ahmedabad which was said to have been one of the reasons behind the state-wide reprisal killings.
"Why the dead bodies were handed over to Jaideep Patel is a serious issue. Jaideep Patel was no official. He was a VHP functionary. Dead bodies were handed over on an official document. A private person has handed over dead bodies in respect of offences of murder, burning, which caused a national outburst, and rightly so. And this is all which is said by the SIT?... What is said is 'alright, we will have an enquiry'? What happened to that enquiry? Nothing. The fact of the matter is that Jaideep Patel made the statement that it was unanimously agreed that he should be handed over the bodies. This asks for serious investigation! Someone has to be prosecuted for it! Because what happened in the process was that by the time the bodies reached at 3:30 or 4 in the morning by truck, 3000 people had already gathered there!", argued Mr. Sibal.
Justice Khanwilkar noted from the records that the bodies were handed over to the kith and kin. Mr. Sibal clarified that they were initially given to Jaideep Patel on February 27, 2002, and handed to the kith and kin only a day later.
"How was a dead body handed over by a letter, by communication by an official, to this gentleman who is a VHP leader? It is a misdemeanour, misconduct on the part of this mamlatdar. It was against all rules of procedures. By the time these bodies reached Ahmedabad, a crowd of 3000 had already gathered.144 curfew was not imposed in Ahmedabad till 12:45 on February 28!", continued Mr. Sibal
"How are 3000 people already gathered there? Who made those phone calls? How did anybody know that Jaideep Patel was taking the bodies? Police could not have told people. Somebody must investigate. But the SIT only says that 'a letter was given, so fine, we will carry out some departmental enquiry against this gentleman (the mamlatdar)'", he submitted.
2 Ministers Of The State Cabinet Positioned In City Control Rooms to Directly Interfere With Police Functioning
"An allegation is made that IK Jadeja, Minister for Urban Development, and Ashok Bhat, Law Minister, and formerly Health Minister, were there in the control room. The SIT asked the accused whether they were there or not. One said I was not there, the other said I was there for 2-3 hours in the control room but I did not give any instructions. And the SIT accepts this and that is the end of the matter! Even the local police would not do this! In which SIT is the accused asked for an explanation and that is accepted? What business does an urban development minister have to be in the police control room? Somebody has to investigate this!", advanced Mr. Sibal.
"You take the statement of the potential accused, accept it and that is the end of the matter? The magistrate should have said this is not the fashion of investigation! Your Lordships are far too experienced even for me to make submissions on this!", he pressed.
"The SIT report says that it is established that Ashok Bhatt did enter the DGP's office but did not visit the Ahmedabad city police control room or interfere with the working. It further says that the presence in police headquarters of the 2 ministers was 'negligible and not material' and that there was no documentary or other evidence of any direction by those two ministers to the police!", he indicated.
"How will there be any documentary evidence? They are present at the spot where in their ordinary business they should not be, and their statements are recorded that they did not give any instructions?", pressed Mr. Sibal.
"When somebody gives an explanation, it is the duty of the SIT to find out from all the people who were there in the control room! That the minister was sitting there for 2 1/2 hours and doing nothing? Was he making phone calls? What were those phone calls, who did he receive those phone calls from, from which area, did he say anything, did he not say anything? There was no point in somebody going to the control room only for two hours, so what was he doing in between? His telephone should have been seized and that would have shown where he was!", he continued.
"Mr. Jadeja is a member of the BJP since 1980 and an elected MLA from 1995. He has stated that on February 28, the then-Minister of state for Home had requested him to remain present in the DGP office to see if any information was received in the control room about any rioting incident or seeking extra police force or any other information, so that would be passed on to the Home department. He said that at the request of MoS Home, he remained in the DGP office for 3-4 hours. His statement is that he does not recollect the exact work done by him! And please remember that the DGP said that I made him sit in the other room because I was too busy, though Jadeja says that the DGP did not object to his presence! Further, the then-MoS Gordhan Zadaphiya has denied that he had asked him to go!", pressed Mr. Sibal
At this, Justice Khanwilkar observed, "Both aspects have been noted in this report. The conclusion has been given on the basis of that".
"But what is the investigation on that? Which accused will say I am guilty. Will you just accept what you are being told and close the investigation? In normal cases, such a contradiction would lead to custodial interrogation. So what was the SIT doing? Nobody was arrested? Nobody was interrogated?", responded Mr. Sibal
"Is this the mode of investigation which is acceptable? Your Lordships say that they have taken the statements of the accused. But in normal police investigation, if you find such a contradiction, you would immediately take them into custody, find out who all were there in the control room, take the statement of each of the members of the control room, ask each of them separately how long he was there. There will be contradictions. Then you will take his phone and see who he did ring up at that point of time. You would see his location on the basis of the tower- Where was the person located when that person was calling you? Then you record that gentleman's statement. Then you have to find out what instructions that gentleman gave him. Only then will you come up with any prima facie conclusion! I am right now not saying whether they are guilty or not but only that why was it not investigated? Your Lordships said that they took the information from both sides. But this is not a civil matter. They took the information but what did they do about it?", he urged.
Non-Response Of The Fire Brigade to Over 47 Distress Messages From The Police Control Room
"The SIT has not investigated why the fire brigade not answer a single call!", advanced Mr. Sibal
Justice Khanwilkar asked, "Someone from the Fire Brigade must have recorded the statement with the SIT"
"No! That is what I am saying!", replied Mr. Sibal
"These are control room records of February 28 when there was mayhem- 'Arson. Polytechnic College. Send fire brigade'. Noone picks up the call! Noone responds! This is a Police Control Room message to the Fire Brigade! And there are many more such calls! These documents are part of the SIT record. They were not referred to by the SIT throughout the closure report at all!", he continued.
"Who is to investigate this? We are in 2021, this happened on February 28, 2002. For 19 years, nobody asked the question! Is it not the responsibility of the great SIT which was set up? If it is not the state's responsibility, who else is responsible?", he submitted.
'This Is Not Ordinary Investigation But One By SIT Appointed by SC; You May Have A Point In Saying It Did Not Do Something It Should Have, But Don't Say It Did Nothing'- SC
"Even though this SIT was appointed by the Supreme Court, it does not go to show that just because Your Lordships appointed it, it did the right thing. That was for the magistrate to decide. That you had confidence in the SIT is fine and we accept that. But whether that SIT discharged this confidence consistent with the rule of law is the question!", Mr. Sibal had said in the course of the hearing.
"This only goes to show that the investigator wanted to help him. I see this happening in every state, whichever government is in power is helping to protect the accused. That is what the investigations have been reduced to today. Whether it is Delhi or elsewhere. What will happen if we allow this to go on?", he had commented.
At this, Justice Khanwilkar had remarked, "This is not an ordinary investigation. It is an SIT appointed by the Supreme Court. Please don't generalise this. Volumes of records have been collected. You may have a point in saying that they have not done something which they should have done but don't say that they have not done anything"
"I am saying in every state, investigating agencies are helping the accused", said Mr. Sibal
"Don't bring that ideology to this case. That is when we intervene...('Please intervene, Your Lordships', said Mr. Sibal)... We will intervene only if the investigation agency is compromised! We will not be intervening on account of some ideology here...the Amicus Curiae's report was also there to assist. His report has also been taken into account by the Supreme Court committee", observed Justice Khanwilkar.
'We Have Investigated Everything; The Entire Protest Petition, Allegation-By-Allegation, Is Actually Directed Against The Then-CM of Gujarat'- Senior Advocate Mukul Rohatgi For The SIT
Senior Advocate Mukul Rohatgi, for the SIT, had intervened to submit, "Mr. Sibal does not read everything. Let him read that article from beginning to end. That will show we have investigated everything. We have a report running into hundreds of pages, thousands of documents were examined, several witnesses were examined. The entire protest petition, allegation by allegation, is actually directed against the Chief Minister. Why doesn't he read those allegations? If he doesn't want to read those allegations against the Chief minister, there is nothing in this case. The allegation is that the Chief Minister held the meeting on February 27, 2002 and said 'let Hindus vent their anger, let there be mayhem for three days, let police turn a blind eye'. Every allegation begins with the Chief Minister. If Mr Sibal says he does not want to read those allegations, then there is nothing else in this case. That he did not call the army within time, that he sent ministers to sit in the office of the police- these are the allegations against the Chief Minister!"
"I am not interested in individual acts but in the manner in which the state reacted. I don't want to allege any culpability on any one person. The manner in which the state acted was far, far removed from established practises! It is shocking!", Mr. Sibal had responded.
At this, Justice Khanwilkar had observed, "When you talk of criminality, it is not criminality of the state, it is that of the individuals. That is what Mr. Rohatgi is pointing out"
"Maybe so. But despite my friend's insistence, I will not enter into muddy waters. I am not going to attribute that to the meeting of February 27. Is it not the failure of the state? I am not on one individual. Here, it is about the state inaction, police inaction, lack of investigation!", replied Mr. Sibal.
"Whatever Your Lordships say will be a part of epoch-making judicial history. We will see how the rule of law ultimately works out. I know Your Lordships will respond with your judgment and Your Lordships will do so eloquently!", he added to the bench.