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

The Supreme Court on Wednesday heard Senior Advocate Kapil Sibal in the plea challenging the SIT report giving clean chit to the erstwhile Gujarat Chief Minister, Narendra Modi and other high functionaries in the Gujarat riots of 2002. 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: ...

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

Sohini Chowdhury

Sibal argued that the SIT did not question the accused, seize their phones, collect their call records and ignored evidence showing conspiracy and hate speech and discarded the Tehalka sting reports, though the same were used for prosecution by SIT in the Naroda Patya case.

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