'People Died Due to Police Action, Inaction, Complicity. Who Will Look At This?': Kapil Sibal Argues For Zakia Jafri In Gujarat Riots Case

The Supreme Court on Tuesday commenced the final hearing on a petition by 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 case alleging larger conspiracy behind Gujarat riots of 2002.

A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar heard detailed submissions made by Senior Advocate Kapil Sibal arguing for the petitioner

Zakia Jarfi, widow of Congress MLA Ehsan Jafri who was killed in the Gulberg Housing Society massacre during the 2002 Gujarat Riots, has approached the Supreme Court through a special leave petition challenging the SIT report which ruled out any "larger conspiracy" by high state functionaries in instigating the communal riots following the Godhra massacre. In 2017, the Gujarat High Court had rejected her challenge against the Magistrate's dismissal of her protest complaint against the SIT's closure report.

Courtroom Exchange:

Evidence Available Must Have Been Taken Into Account: Senior Advocate Kapil Sibal For Jafri 

At the outset Senior Advocate Kapil Sibal took the Bench through the facts of the matter and the issue involved.

He submitted that the matter pertains to the Gujarat riots. In 2006, the petitioner filed a complaint before the Gujarat DGP alleging that even before that horrible incident of Godhra, there were certain prior incidents which instigated communal riots

"There is evidence ,evidence not provided by me but by intelligence officers, this evidence must be taken into account to ascertain if offence has been committed. Evidence related to facts that police was not taking action, hate speeches were being made, false information was being provided to people. It is in in the context that that this court appointed amicus", Sibal submitted.

Magistrate Duty Bound To Take Cognizance If Information Provided:

Mr Sibal submitted that the petitioner is aggrieved by the fact that neither the Magistrate nor the SIT acted on the information provided by the petitioner.

"The matter was relegated back to the Magistrate and the Magistrate had said that he doesn't have power and he won't act on the protest petition filed by the complainant. Even the SIT didn't take any evidence. Magistrate is duty bound to take note of the information and take cognisance. Whether SIT said no case has been made out is wholly irrelevant. If I can provide that information to the Magistrate, the Magistrate is duty bound to take cognisance. Neither the Magistrate, nor the revisional court has done that." Sibal said.

List of Dates:

Taking the court through the important dates and sequence of events, Mr Sibal stated that on 9.10.2003, Senior Advocate Harish Salve was appointed as the amicus Curiae in the matter. On 21.11.03 Supreme Court issued notices in transfer petition filed by NHRC seeking transfer of trial and stayed the trial in Gulbarg society massacre case. On 08.06.2006, the present petitioner Zakia Jafri filed a complaint to the DGP Gujarat wherein the complaint categorically alleged that there is a widespread conspiracy which led to the crumbling of law and order situation in Gujarat after Godhra carnage.

On April 26, 2009, Supreme Court directed SIT to examine the petitioners complaint dated 08.06.2006 and submit a report to Supreme Court within 3 months. On January 9, 2010, Supreme Court recorded in its order that having regard to complexity and gravity of the case, very large number of witnesses are to be examined and large number of documents are to be revived from the state government.

On 6/5/2010 Supreme Court stayed pronouncement of judgement of ongoing cases. The SIT Chairman the filed its report before the top court. In 2010 SIT filed further report on investigation. On 23/11/2010 Amicus Curiae was changed and Advocate Prashant Bhushan was appointed. On 20th Jan 2011 Amicus submitted a report on preliminary investigation.

Then SIT was directed to look into amicus findings and if need be carry out further investigation. On 5/5/2011 report of SIT's further investigation was provided to Amicus to examine the same and submit its independent assessment, leaving it open for Amicus to interact with any of the witnesses.

Later, the SLP was disposed of by Supreme Court and directions were given to SIT to forward final report to the Court that took cognisance of CR 67/2020 (the Gulbarg case). It was directed to hear complainant before filing closure report.

SIT Didn't Look At Facts Part Of Official Records:

Mr Sibal submitted that the SIT was already in seizure of several facts which were part of official records but it ignored them while filing its closure report. In protest petition the complainant relied on those official records, and court did not look at them.

"SIT was constituted under SC order?" the Bench asked.

"Yes." Sibal said.

He added that the Original report by SIT Member Mr Malhotra set out a finding that "offences were committed and substantiated".

"That was taken into account by SIT in its report?" the Bench asked

"No, that's our grievance." Sibal said.

Not Presenting Any Evidence Private In Nature, Its All Part Of Official Records

Mr Kapil Sibal submitted that the petitioner is not going to present any evidence which is private in nature and the evidence is part of official record. Another evidence was the reports from the sting operation done by reporter Ashish Khaitan, who at that time worked in Tehalka.

"If Lordships will look at that they would be shocked, as that has been denied, whole reference to sting operation has not been taken into consideration at all saying it is all hearsay. Nobody denies authenticity of the sting operation but both Magistrate and SIT don't look at it." Sibal said. 

All We Want Is The Matter Be Looked At: Sibal

Mr Sibal informed the Court that after SIT had filed a closure report on 8/2/2012, the complainant filed a protest petition seeking cancellation of that report. The Petitioner also filed SLP seeking clarification and seeking access to investigation papers and SIT report. The Magistrate had then passed an order accepting SIT closure report and rejecting protest petition. Supreme Court vacated stay on pronouncement of judgement in trial and Trial court had passed its judgement and convicted the 29 accused.

At this juncture, Justice Khanwilkar asked "Your main issue seems to be, material you wanted to rely as part of your protest petition has not been taken into account by SIT?"

"Both SIT & Magistrate." Sibal said.

Mr Sibal further added "All I want is nothing more than that, that our matter should be looked at."

Documents That were needed to be examined According To Petitioner: 

Mr Sibal read out relevant portions from the protest petition to elaborate on the petitioner's grievance.

According to the petitioner, the following documents needed to be examined: police wireless messages which were with government of Gujarat even though in some official statements were said have been destroyed, PCR and wireless messages, responses to PCR messages. The action in response taken by the police also needed to be collected and collated.

"Who is going to investigate this? Admittedly not investigated, closure report doesn't deal with this. If you don't investigate, file a closure report and it's accepted, where do we go!" Mr Sibal remarked

Adding on to the list of evidence, Mr Sibal submitted "Recording of TV channels specially of civil hospital where bodies were sent, and coverage of Godhra mass transportation of dead bodies to Ahmedabad, interviews of political functionaries, heads and senior members of administration and police, these are available and ought to have been formally seized by SIT to independently corroborate events from 9 years ago. That time it was 9 years ago, now it is way more." 

The Bench then asked Mr Sibal as to how the magistrate dealt with this contention that documents were not examined.

"He hasn't, he has said we are only concerned with Gulbarg society matter" Sibal said.

"Documents which you wanted to rely on were not looked at by SIT and then the Magistrate is what you are saying?" Justice Khanwilkar said.

"This is just about law and order and rights of individuals" Sibal said 

Complaint By Complainant & Material Collected by SIT Was Not Relating Only To Gulbarg Society:

The Bench asked Sibal if the Supreme Court had directed the closure report to be filed before Magistrate.

"Yes. Before the court which was considering 67 ( Crime Report 67 relating to Gulbarg society case). It was for convenience that the matter placed before that Magistrate. Otherwise what is the point of Amicus & all material." Sibal said.

Sibal added that the material collected by the SIT was not relating to only Gulbarg society case but the larger conspiracy behind riots. 

However the Bench said that Ultimately the report is with reference to a crime(Gulbarg society crime) - the crime in respect of which cognisance was or is to be taken.

"Then where was question of court even commenting on SIT's report beyond Gulbarg. I can understand Magistrate could have said I take cognisance of this material, he can't say I cant look at this material." Sibal said.

"The case came to SC in 2011, some further investigation was required to be done. Investigation was done by SIT, it asked to file report and court allowed. What is that crime in respect of which crime report was filed, and if material you're referring to was relating to that crime?" Justice Khanwilkar asked.

"It was sent there for administrative purpose as there was no court. Other 173(2) wouldn't have been mentioned." Sibal said.

"People Died Due to Police Action, Inaction, Complicity, who will Look at this?":

Mr Sibal further argued "I must have a remedy in law, what is that remedy? The Magistrate doesn't look at it, sessions court doesn't look at it! Who will look at it? I leave it for future generations to find out who will look at this!"

"There were people who were due to police action, inaction complicity were massacred, where will anybody go? Where will anyone go. I'm giving you official evidence and taking you through it. I'm not saying anything else", Sibal argued.

Statements of witnesses in SIT was not related to only in Gulbarg it was related to entire Gujarat

In response to Mr Sibal's statement that statement of witnesses in SIT's investigation were related to entire Gujarat riots, the Bench observed that the material in the report will be specific to the crime with respect to which it is filed(Gulbarg society crime).

"Our point is, the complaint, investigation by SIT, by Amicus, none of these related only to Gulbarg." Sibal said.

"SIT was not just investigating Gulbarg, it was asked to investigate all matters", he added.

"There may be more than one crime reported. The 173(8) report pertains to that crime, that's our understanding." the Bench said.

"When court was talking about report of SIT, it wasn't talking about only Gulbarg, otherwise there's no point of 173(2)." Mr Sibal said.

Solicitor General Tushar Mehta informed the Court that the original complaint was filed by Zakia Jafri, who lost her husband in this riots, that offence was registered as 67 of 2002. She stayed in Gulbarg society. The Complaint she filed in 2006 was of omnibus nature one against 60+ persons, since it was concerned with Gulbarg society incident, therefore it was filed in that particular trial.

"He is right, yes it was filed. Expect that when the matter came to Supreme Court, SIT investigation was beyond Gulbarg, which is why matter was sent to Magistrate under 173(2) and not Sessions Judge. The SIT carried on investigation across the State and that material was before the Supreme Court. The Trial was going on before Sessions Judge but matter was sent to Magistrate", Sibal replied.

" How are 60 people involved if the complaint was limited to Gulbarg. They were not!" he said.

"Forget all this, am I not entitled as a matter of law, when I bring something to notice of Magistrate, an information is presented to him, what is he to do? Has your Lordships ever said in any judgement of this court that he will not look at it, will return it? When there are official documents to suggest the kind of crimes that were committed?!!" Sibal remarked.

"If we limit it only to Gulbarg, what happens to rule of law, what happens to all material! What will ever happen to this. Ultimately it is the court that we have confidence in. A Republic stands or falls on the basis of what the court does!" Sibal remarked.

Its Not a Political Issue, Its Administrative Failure of State we are concerned with:

Referring to Jafri's Complaint, Mr Sibal said, " I am not concerned with any particular person, I don't want any person to be named, that is not my concern." 

"This is not a political issue at all, it's administrative failure of state that i am concerned with.That this should any happen again" Mr Sibal said.

An Investigation Is all I want, Dont Want Convictions At This Stage:

"I want an investigation, that's all I want. I don't want any convictions at this stage" Mr Sibal said.

Mr Sibal further submitted "What's happened really was, when all this material was collected based on complaint it wasn't limited to Gulbarg. The complainant was a resident of Gulbarg, so it was sent there. I went to court since I filed a complaint with DGP and nothing was done. Protest petition & amicus were all looking at these facts, not just at Gulbarg."

Mr Sibal added that "We were proposing an FIR but the court said no Whats the need of a FIR we are sending you to the Magistrate. It is quite clear that complaint didn't relate to Gulbarg alone, neither did the material.

"If we point something to the court and the court says I will not look at it, where do go, which court do we go to!"

"Police wireless messages were available but were reportedly destroyed." Sibal said

"Why has this not been investigated! We can't look the other way. This republic is too great to look the other way in issues like these. No record, documentation, of meetings during riots have been kept. Why!" 

Senior Advocate Kapil Sibal will continue with his submissions tomorrow. 

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