Gujarat Riots- 'If This Court Allows Any Further Investigation, It Would Be In The Teeth Of The Constitutional Rights Of Accused': Rohatgi Concludes His Arguments

A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, took up the part heard matter for further hearing. On the earlier occasions, Mr. Rohtagi had taken the Court through the findings of the SIT, observation made by the Nanavati Commission, the Trial Court judgment in the Gulberg matter qua the allegations made by the Petitioner. Highlighting the relevant portions from the Trial Court and High Court judgments to demonstrate the elaborate consideration of the allegations by the courts below, Mr. Rohatgi concluded his arguments on behalf of SIT. The Solicitor General, Mr. Tushar Mehta appearing for the State of Gujarat commenced with his submissions. Both, Mr. Mehta and Mr. Rohatgi was skeptical of the role of Petitioner No. 2 (Teesta Setalvad) in the present proceedings, to the extent that they indicated her participation was motivated.

At the outset Mr. Rohatgi, recapitulated the judgment of the Trial Court pertaining to the riots in Gulberg, which had categorically found that there was no material to establish conspiracy. He submitted -

"For the purpose of recapitulation. I had shown the judgement of Gulberg, where there was a finding that there was no conspiracy."

To avoid any confusion, the Bench asked Mr. Rohatgi to take the court through the Trial Court and High Court judgments, one allegation at a time.

"Thus far you have taken us to a closure report, allegation wise. Do the same exercise with the Trial Court and High Court."

Allegation against the then Chief Minister

Pointing out that that first allegation of the meeting of 27.02.2002, that is essentially against the then Chief Minister was not read by Petitioner and therefore he would also refrain from addressing the same.

"I had started with the Trial Court order and I had gone, kindly turn to the 1st allegation. This is the meeting of 27.02.2002 not urged by the other side. So, I did not read it.

But, he apprised the Court that the Petitioner's complaint is replete with the allegations against the Chief Minister. It is only in the present proceedings they have decided not to push this particular allegation.

"It is for the first time before your lordship they have decided not to urge this. This is a major point in the complaint, and in the report."

Parading of dead bodies

Mr. Rohatgi submitted that he had already elaborately dealt with the issue of parading of dead bodies. The Trial Court, considering the issue, had found that there was no criminality in the decision to take the bodies in a truck from Godhra to Ahmedabad accompanied by a police convoy. Moreover the Trial Court also found no criminality in the decision to conduct post mortem on the railway tracks, considering the urgency of the situation.

"At 223, I read point no. 2 the issue of parading, post-mortem, delivery of bodies. I had read this in detail. I have finished this point….Court found there was no criminality. The post mortem on the side of the track and transfer and delivery had no criminality."

Ministers present in the control room

With respect to the allegation of the two ministers, namely Asok Bhatt and Gordhan Zadafia, influence the control room at Ahmedabad, Mr. Rohatgi stated that it had been argued and discussed by the Trial Court. As per the SIT's report, one minister was indeed present, as a matter of protocol and for no other reason.

"The third allegation is about the two ministers - Ashok Bhatt and Jadeja. Why there were in the control room? This has been argued, discussed...SIT found one minister was there, another was not."

Statement of Sanjiv Bhatt and Shreekumar

Reiterating the submissions in this regard, Mr. Rohatgi argued that the statement of Bhatt about being present at the meeting of 27.02.2002 has already been discarded as false. He submitted that both the SIT and the Nanavati Commission had found him unreliable and the Trial Court had considered the same.

"Next is Sanjiv Bhatt discounted by SIT, Nanavati Commission"

Coming to the statement and register of Shreekumar, Mr. Rohatgi submitted that he was a disgruntled officer as referred to by the Nanavati Commission, who had filed the register, which the Citizens' Tribunal calls the 'conscience register' with the 3rd affidavit. He took the Court the observations and findings recorded by the Trial Court to show that the said allegation had received full consideration of the Trial Court.

"...After this he (Trial Court) goes into Shreekumar. His affidavits are discussed regarding illegal directions. Nine affidavits were filed. The register being called the 'conscience register' was produced with the third affidavit...See the argument, milord. That the affidavit is not taken into consideration by SIT. There are also allegations that incomplete affidavits were filed by officers. Then, what the amicus said. At the foot of the page, the argument of the Advocate for SIT….The argument of defence, that he (Shreekumar) was in the Arms unit. Only on 09.04.2002 he came to law and order, and from 16.04.2002 he maintained the diary.

Demonstrating to the Court the great depth in which the statement of Sreekumar was dealt with by the Trial Court, Mr. Rohatgi felt that the Petitioner's plea regarding non-consideration would fall flat.

"To say the TC has not applied its mind is a travesty of justice...[TC noted] The investigating agency has raised doubt about the register. No mention of the register in first two affidavits filed before the Nanavati Commission. It was made available only after he was superseded. It goes into every small detail."

The Bench observed that the Trial Court had primarily examined the SIT report, keeping aside the observations of the Nanavati Commission.

"In this analysis, the court has consciously kept the observation of the Nanavati Commission aside and was concerned with the material of SIT."

To further the observation of the Bench, Mr. Rohatgi submitted -

"Yes.... He [TC] said he wants to steer clear of what was happening in the Commission."

The Bench reminded Mr. Rohatgi that it expects his assistance not only to counter the plea of the Petitioner against SIT, but also against the Trial Court, which has been alleged to not have considered all the material placed before it.

"Not only SIT you have to also assist regarding the Court before whom the closure report was placed. The allegation is that the Court did not consider everything."

Appalled by the allegation against the Trial Court, Mr. Rohatgi asserted that all the allegations were argued before and considered by the Trial Court.

"I went through this whole thing, I did not find anything that was not argued or taken into account. Kindly see the finding of the 3 allegations. In charge 3 he went into several sub-headings."

Statement of the then Chief Minister

An allegation that was not urged by the Petitioner was taken up by Mr. Rohatgi. He highlighted that the allegation was with respect to a statement, which the Petitioner felt was to the effect of Newton's Law, which states that every action has an equal and opposite reaction.

"The next one is not argued, it is about A1 (CM). I will just say that the allegation is a particular statement made by A1 which the other side calls Newton's law - every action has an equal and opposite reaction. That is the allegation in the complaint."

Mr. Rohatgi then referred to a clip of an interview given by the then Chief Minister.

The Bench enquired, "The clip had been analysed at 279. This interview was given when?"

Mr. Rohatgi responded, "01.03.2002" and apprised the Court that the statement in fact was contrary to the claim of the Petitioner, wherein the Chief Minister had said something to the tune of "there should be no action or no reaction."

The Gujarati transcript of the clip was read out to the Bench by Mr. Shukla, a member of the SIT. Thereafter, Mr. Rohatgi continued with his submission that the initiation of the riot as per the finding of the Trial Court in Gulberg was after 1, when late Ehsan Jafri had shot 8 rounds from his gun.

"So, he (A1) says no action and no reaction. The TC finds no violence till 1, by virtue of firing by Jafri, mob got infuriated, they broke the compound wall, and he was killed in that mayhem, I think that is what is being stated here."

Tehelka tapes

Mr. Rohatgi pointed out that the Trial Court had observed that there was no reference of Tehelka sting operation in the complaint.

Recalling the Petitioner's argument in this regard, the Bench stated -

"What the other side argued was that the complaint was prior and could not have referred to the sting."

Acknowledging the same he moved onto the allegation of delay in deployment of the army.

Delay in Deployment of the Army

Refuting the allegation, he vehemently pointed out that SIT found that the army was called within two hours of the riots and the Trial Court accepted the same. He submitted -

"Then, about the army. Intentional delay in calling the army. This is elaborately commented upon by SIT...Then the meeting of 28.02.2002. A wireless message was sent in the morning. There was an informal alert to the army on 27.02.2002 itself. The formal was on 28.02.2002 at 2PM. The court [TC] believed the conclusion of SIT to be correct."

Slack review of cases

Mr. Rohatgi clarified that SIT had nothing to do with the slack review, yet it went into the same because such an allegation was raised. He further added that in the cases where the allegation of slack review is made, they were ordered to be re-examined by IG Rangers, who had looked into it and submitted a report.

"Then is the 'slack review' of cases in 2004. This has nothing to do with SIT, but it went into every allegation. Kindly come to 302, middle of the page. He[TC] says there is no slack review, SC asked IG Ranges to look into it, they did so and submitted a report."

The Bench pointed out that the Trial Court judgment read "that court is not agreed with any of these submissions of SIT."

Assuring the Court that "it is a translation problem", Mr. Rohatgi asked Mr. Shukla to read from the original copy of the judgment which is in Gujarati.

Once the Gujarati version was read out the Bench contextualised the reason for non-agreement of the Trial Court with the SIT.

"The TC refused to distinguish between preliminary enquiry and further investigation. So, in that context the statement of not agreeing with the submission of SIT was made."

Gujarat Bandh and Harassment of diligent officers

Addressing the allegation of Gujarat Bandh and harassment of diligent officers, Mr. Rohatgi stated that even though they were not within the mandate of investigation, SIT had examined them in detail. With respect to transfer, he had submitted that when a new Govt. comes to power, they change the existing panel, and that is how it has always been.

"Then there was the Gujarat bandh. This is actually irrelevant. Nothing that SIT had to do. Then harassment of officers. SIT examined which officer transferred where etc. Many of these points were actually irrelevant for us. The moment a new Govt. comes there is a new panel. You can call it favouritism, but that is how it is."

Biased Public Prosecutors

Controverting the allegation of PPs being sympathetic to VHP, Mr. Rohatgi submitted that the SIT was bestowed with the power to change PPs, by the Supreme Court.

"Now PPs, sympathetic to VHP. The SC gave power to SIT to change PP. Full power was given."

Rehabilitation of victims

The submission in this regard was that this did not concern the SIT, but was looked into, nonetheless.

"Then, rehabilitation of victims. This has nothing to do with SIT, but still it went into it."

CD of Rahul Sharma

Without going any further into the statement of Rahul Sharma, Mr. Rohatgi informed the Court that the same was extensively considered by the Trial Court.

"Again the CD of Rahul Sharma comes in. Again the 3 star witnesses, One gave false register, one gave false CD and one lied about being present at the meeting of 27.02.2002."

Phone records of PC Pandey

According to the Trial Court the Allegation made against PC Pandey, the then Commissioner of Police, Ahmedabad based on phone records alone could not establish a case of conspiracy.

"Now, PC Pandey. He [TC] says only on the basis of call details, an argument of conspiracy is not made out...Then, roles of individuals. For example, at 330 Shivanand Jha, APC. It is argued and analysed. [TC conclusion] He says whatever SIT had said is correct. Then, about Pandey, Tandon and Gondia."

At this juncture the Bench remarked, "Broadly, we get your concern that you have investigated and placed material before the judge and he had considered it."

Summing up, Mr. Rohatgi asserted, "The Trial Court has done much more."

Protest be taken as complaint

Mr. Rohatgi drew the Court's attention to the demand of the Petitioner to consider the Protest petition as a complaint, which the Trial Court had denied.

"He [TC]says I will not take it as a fresh complaint. Because SC had said 'look into' and the closure report was accepted by SC."

He added that the Trial Court had observed that Zakia's knowledge about the riot was limited to Gulberg. The information about the other incidents were made available by Teesta Setalvad.

"He[TC] is making a comment that this lady had knowledge about Gulberg, information about other incidents like buildup and all, she got from Petitioner no.2"

The Bench was concerned that when the complainant had the opportunity to raise the issue of larger conspiracy in the substantive proceedings in Gulberg, but she did not do the same, how can she come in a side proceedings with the allegations.

Seeking Mr. Rohatgi's assistance in this legal issue, the Bench stated -

"As a matter of law. When substantive proceedings are there, then how can the complainant approach through a side proceeding. Kindly assist us on this legal issue...There would be no conclusion of the trial then. Is that procedure permissible? We have to advert to which principle that it can be done now...That material was available with her when she had deposed….As a prosecution witness if you fail to depose can you continue later in a side proceedings."

Mr. Rohatgi emphasised that Zakia's complaint was completely based on hearsay.

"Even in Gulberg she was not privy to incidents, how will she be privy to incidents in other parts. She made a complaint which was basically hearsay."

The Bench enquired, "When did she depose? All the material she was referring to now, was that available when she deposed?"

Mr. Rohatgi provided the information, "She deposed on 22.10.2010. Shreekumar, Rahul Sharma's material was before her. She was very cryptic in her chief."

Larger Conspiracy

Coming towards the end of the Trail Court judgment, Mr. Rohatgi took up the issue of larger conspiracy.

"Now, we are towards the end of the TC judgment. The Court now again examines the issue of larger conspiracy...It is there in my note...And larger conspiracy is the third last entry of the chart."

He pointed out that the Trial Court had analyses the allegation and submissions made with respect to ethnic cleansing and genocide.

"So, he [TC] discusses in great details the allegation of ethnic cleansing and genocide."

Mr. Rohtagi emphasised that one of the reasons for finding it was not a case of conspiracy, the Trial Court had stated that calling the army without any delay indicates that there was no intention to hatch conspiracy.

"He [TC] is giving this as reason that if there is conspiracy, then you would not call the army within two hours of the riot commencing."

Statement of Sanjiv Bhatt and allegation against CM

Mr. Rohatgi argued that the trial court had dealt with every issue in the allegation against the Chief Minister thoroughly examined the statement of Sanjiv Bhatt to reach the conclusion that the allegation of conspiracy against the then CM was improper.

"Rohatgi: Kindly see 367 bottom. The statement of Sanjiv is not reliable. They were not reliable, not before Commission or SIT. Then he discusses what the amicus said. So, there is nothing left by him [TC], he discusses everything.Now allegation of intention to instigate. He say that it is completely antithesis to a conspiracy. One is contrary to other, you cannot say conspiracy and that they did whatever they could do...Court [TC] says that the allegation of conspiracy against A1 is improper."

Plea to take protest as complaint

Perturbed that the after getting ample opportunity to register a fresh complaint while the trial was pending, Mr. Rohati argued that she had not done the same. When her complaint was not acted upon she approached the Gujarat High Court in 2007, which had asked her to file a fresh complaint. Instead of doing the same, she had approached the Top court. Considering her plight, the Supreme Court asked the SIT to 'look into' her complaint and now things are being blown out of proportion demanding the protest to be taken up as a complaint.

"Again plea to take protest as complaint. This discussion starts again. [TC says] Protest cannot be taken as a complaint...Riot of 2002, Complaint of 2006, goes to HC, HC gives opportunity to file complaint, She doesn't record, comes to SC. Court said have a look Mr. SIT...Protest in 2012, she says treat this as a complaint. How many opportunities will you take? Can you go on and on and on? At the end of the day you are witness to an incident and the trial is going on regarding the same...She knew her whole complaint is hearsay. So, you do not say any of this. How many years will you keep the pot boiling?"

Asserting the sanctity of the judgment delivered by the Trial Court, Mr. Rohatgi stated -

"This judgment cannot be said to be a case where the court has not considered the protest."

Judgment of the Gujarat High Court

Skimming through the relevant portions of the judgment of Gujarat High Court, Mr. Rohatgi submitted -

"Now kindly come to the HC judgment. It gave the entire history, now pg 94 para 14. talking about revision jurisdiction. Then it records Same thing, completely ad nauseam. Kindly turn to 126, this is the parading business. Then the control room issue. Hate speech."

The Bench pointed out that the portion referred to by Mr. Rohatgi was extracts from the Trial Court's judgment and not the observation of the High Court -

" pg 94 onwards these are findings of Magistrate...This is culled out from the Magistrate till pg. 132"

Mr. Rohatgi responded, "Correct. If I may say, even before 132, the HC is commenting, at this stage also. At several places."

It was highlighted that with respect to Tehelka tapes the High Court had supported the finding of the Trial Court -

"Your lordship, see about Tehelka. HC says, these findings [of TC] are based on sound reasoning and evidence before it."

Mr. Rohatgi continued reading relevant portions from the High Court judgment to show the extent to which it had examined the allegations of the Petitioner.

Disturbed, Mr. Rohatgi submitted that the re-investigation, if allowed by the Supreme Court, would be in the teeth of the rights of the accused guaranteed under the Constitution.

"There are 2-3 aspects.First w.r.t. accused. If this is allowed and re-investigation permitted in Gulberg case, people who were acquitted and against whom no appeal lies, they will be jeopardised. That cannot be done because of the guarantee given to them by the Constitution."

The second aspect according to Mr. Rohatgi was that by not deposing truthfully, Zakia had breached the duty of a witness and the trial had concluded in the Gulberg matter, therefore some kind of estoppel would operate for not disclosing all material at the time of deposition.

"The HC in 2007 gave her an opportunity to file a fresh complaint, but she did not take it up. She was duty bound as a witness to tell the truth of what she knew, That also she breached the duty towards the court...Now in the protest of 2012, she says protest be treated as complaint. Judgment has been passed in the trial. So, some kind of estoppel will operate against her for not telling the truth when she deposed."

He added that the complaint was driven by Teesta and any comment by the Supreme Court regarding the larger conspiracy would have a bearing on all the trials that have already come to an end.

"I submit that it is being driven by Petitioner No. 2 and not by the complainant. Your lordships' opinion on larger conspiracy will now have an impact not only on Gulberg but all the other cases."

The Bench assured, "Just because a number of cases are there, does not mean that larger conspiracy is multiple times.

The allegation, Mr. Rohatgi submitted, was of such a nature that the larger conspiracy would have an impact on all the cases.

On an earlier occasion the Court had asked Mr. Rohatgi provided all the orders wherein the Supreme Court had appreciated the work of the SIT. Providing the same, he stated -

"One more thing, Milord. Your lordship had asked if any other order commended the SIT. There is an order dated 13.04.2017 of J. Khehar in the NHRC proceeding. This is a continued trust on the SIT itself."

Mr. Mehta appearing on behalf of the State read out the order of the Supreme Court commending the SIT, since the same was not available with the Bench, when Mr. Rohatgi read out the order.

Referring to the judgment cited by the other side on the issue of protest and the role of the court, Mr. Rohatgi argued -

"He[TC] is cognisant of the protest, he has seen the closure, applied his mind to both the documents. Despite this, she wants to treat the protest as a complaint. It is more perverse in my case, because she was offered to file a complaint by HC in 2007. This is only, because SC said look into the matter. If I may say, the police did not take action for 4 years, in view of the substantive matter being pending before the trial court."

In conclusion he reminded the Court after the doctored complaint submitted by the Petitioner to the Court -

"Kindly remember, I had submitted that the complaint in this proceeding is not a faithful copy of the original. Because now they are relying on the statement of Sharma."

Submissions made on behalf of State

Mr. Mehta commenced his arguments on behalf of the State of Gujarat.

Suspicious of the intention of Teesta Setalvad in pursuing the present litigation, Mr. Mehta submitted -

"There is a larger conspiracy orchestrated by one Petitioner No. 2, to defame an entire state for 20 years. And I will make that good...I have nothing to say against Petition No. 1, she is wounded, she lost her husband. But, there should be a limit to exploiting the misery of a widow."

Referring to the periodic tables in the case of Meghaninagar filed in Supreme Court, relied upon by Mr. Rohatgi to show that the witnesses came to the Investigating Officers with prepared statements. He submitted that some of the witnesses stated that they were tutored and prepared by Teesta Setalvad.

"The witnesses were tutored. My question is why did the SIT not prosecute her (Setalvad) for fabrication of evidence to involve innocent persons in the offence?"

Considering that the conduct of the Petitioner is crucial in a Special Leave Petition filed under Article 136 of the Constitution, Mr. Mehta wanted the Court to look into the motivation for filing it.

"I wish to place on record something disturbing. What can be the motivation for doing this? The conduct of Petitioner is very very important in 136 litigation."

To make good his argument, Mr. Mehta placed reliance on a judgment of Gujarat High Court in a case of anticipatory bail. The background of the matter was that Teesta Setalvad and her husband were running two trusts, Citizens for Justice and Peace and Sabrang Trust. The NGOs used to organise functions in the memory of the riot victims of Gulberg, wherein financial support was announced for them. Some residents of Gulberg society had lodged a complaint as the financial support promised was not provided. The High Court judgment primarily dealt with the collection of donation and foreign funds by the two trusts in the name of Gujarat riots victims.

"I am saying why it was orchestrated. The Petitioner there is the Petitioner No. 2 herein and the Petitioner No. 2 there was her husband."

Mr. Mehta took the Court through the allegations and findings on the issues of discrepancies in the accounts; funds of the Trusts being utilised for private purposes; accounts not audited for a long time.

The Bench will be hearing the matter on Tuesday, 7th December.

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