Gujarat Riots- "If You Stoke The Fire, The Pot Will Boil.": Kapil Sibal In Response To SIT And States's Critique Of Petitioner's "Attempt To Keep The Pot Boiling"

A Bench comprising Justices AM Khanwilkar, Dinesh Maheswari and CT Ravikumar took up the part heard matter for further hearing. At the outset, the Solicitor General was critical of the motivations of Teesta Setalvad (Petitioner No. 2) in the present proceedings, which he argued was to simply malign the State of Gujarat. Apart from that, Mr. Solicitor General, vehemently argued that the State had taken all measures that it possibly could, after the Sabarmati Express was torched and during the ensuing riots. To substantiate his claim, he relied on the Report of the Commission of Enquiries set up by the State with respect to the 2002 riots. In his rebuttal, Mr. Sibal fervently reiterated his submissions on the lack of investigation by SIT.

The Solicitor General continued with the line of argument that he had taken, on the last occasion. He relied on a Gujarat High Court judgment on the allegation of embezzlement of public funds donated to two NGOs run by Teesta Setalvad and her husband, to demonstrate her intention in pursuing the present matter. As per his submissions, Setalvad exploited the victims of the Gujarat riots for her private interest.

"pg 126 I will read [of the Gujarat HC on allegation of embezzlement of funds in NGOs run by Petitioner No. 2 herein]"

Not being able to see Mr. Sibal on the screen, the Bench asked if he was present.

"We thought you lost connection."

On a lighter vein, Mr. Sibal replied that -

"I cannot lose connection with the Court. Then where will I go?"

Recapitulating the allegation made in by Zakia, Mr. Mehta retorted that the State had taken preemptive measures. He supplemented the SIT report with the findings of the Commission of Enquiry, whose mandate included the preventive steps taken by the State. It was submitted -

"The allegation is that after the aftermath of the Godhra train burning and the riots, the State Govt. did not take steps. There are SIT reports. As additional material I refer to this. A Commission of Enquiry was set up under the Enquiries Act headed by a former judge of this Hon'ble Court. One of the terms of the Commission was preventive steps taken by the State…They collected voluminous documents and came to a conclusion. I would refer to only the conclusion."

Mr. Mehta suggested that exercising jurisdiction under Article 136, if any further exercise was entertained by the Court then it would not be in the larger interest of the public.

"In a 136 petition, any further exercise at their (petitioner) behest would not be in public interest."

On the efficiency of the administrative measures taken by the Government, Mr. Mehta referred to the Commission's report which stated -

"...the material discloses that an emergency meeting of the Chief Secretaries, ACS Home and Director General of Police was held in the morning to decide the course of action to be taken. The DGP gave directions to senior police officers in the afternoon to proceed to Godhra and other communally sensitive areas immediately and supervise the law and order situation there. One additional DGP was also sent to Godhra…IG was also directed to go to Godhra…on 27.02.2002, the DGP by fax instructed all commissioners of police, superintendent of police and range heads to take required measure…Another fax message was sent… to take all preemptive steps…"

With respect to the deployment of police personnel and requisitioning of the army he submitted -

"[The Conclusion] Regular police force was put on alert, the ones on leave were asked to join immediately. On 27.02.2002 for deployment of additional police force only 9 companies and 1.5 platoons of CRP were available in the State…7 companies were allotted to different districts and only 2 companies and 1.5 platoons remained for further deployment…After obtaining permission of the Central Government, 4 companies of Rapid Action Force available in State were also deployed...In the afternoon State requested Centre for 10 companies of Central Paramilitary force and to make available Central Reserve Police Force...The Govt of India approved deployment of 6 companies of CISF, 17 companies of BSF and 6 companies border wing home guards…the first central paramilitary force to arrived comprised 3 companies of CISF made available to Vadodara, Ahmedabad and Godhra…"

Referring to the Commission of Enquiries Report on the meeting of 27.02.2002 at the office of the then Chief Minister, Mr. Mehta emphasised -

"Milords, the highlighted part. According to them who attended the said meeting, the Chief Minister instructed them to take all possible steps."

Refuting the allegations against the State, he argued that everyone in the administration and the police force had acted with integrity -

"Everyone did what they could do under the circumstances. The complaint is like an article in a newspaper. I am showing that they did all they could under the circumstances…Strict instructions were passed contemporaneously, repeatedly and in writing."

The Bench asked the Solicitor General if he was reading out excerpts of the full report. Mr. Mehta, promptly, responded -

"This is the excerpt to show the steps that were taken. Compilation in Vol II is the full report. I am reading only the relevant part with respect to the present issue."

Continuing his submissions, he stated -

"Every DM and DSP were found to be discharging their duties diligently…These are some of the major findings. Why I point out is that wherever the incidents have taken place nobody has disputed. Persons who are guilty have been convicted, persons not found quality were acquitted.

Pointing out to the Court that the accused had been dealt with by the trial courts, he argued that based on the evidence on record, some were acquitted and some convicted. But, keeping the matter 'boiling' till date would be a travesty of justice -

"It was nobody's case that the guilty went scot-free. In the name of Petitioner No.1 , petitioner No. 2 wants to keep the pot boiling, which would be a travesty of justice. Your lordships may not allow this petition."

Mr. Kapil Sibal appearing for the Petitioner, commenced his arguments, rebutting the submission put forth by SIT and the State of Gujarat.

Firstly, it was brought to the Court's attention, that Mr. Sibal had only relied upon undisputed evidence to ensure that the Court does not go into the finding of facts to determine the correctness of the documents. He clarified that in the limited scope of the Magistrate there was no place for finding of facts, he merely had to look at the material and if he had a strong suspicion, ought to have taken cognisance. Mr. Sibal submitted -

"I said that I will rely on undisputed documents, whether in the form of Tehelka tapes, undisputed material by SIT. I did that because I did not want to enter into arenas where your lordships will look into statements and enter into an enquiry of who is right or who is wrong. Your jurisdiction is not that, your jurisdiction is that of a Magistrate. When he looks at the closure report, he cannot go into findings of fact. He (Mag.) accepts the closure report and closes the case. He can take cognisance and issue process, take cognisance and issue further investigation or just issue further investigation."

Referring to all the statements read out by the SIT as 161 statements of the witnesses, Mr. Sibal argued they had no relevance at the present stage of proceedings.

"I don't know why we are going into these. These are all 161 statements. SIT was referring to 161 statements. Why? So that your lordships look into what is wrong and what is right. My Ld. friends did not refer to the Supreme Court order of 07.02.2013 at any stage."

Mr. Sibal apprised the Court, that the Supreme Court had categorically stated that the material collected in respect of Zakia's complaint would not be used for any other trial. Arguing to delink the complaint from the trial in the Gulberg matter, he submitted -

"None of the material can be used in any other trial."

Surprised by the manner in which SIT had relied on the statements of the witness as findings of fact, Mr. Sibal made some preliminary submissions -

"I am really surprised, before this Court, SIT had been using statements as if these are findings of facts. There is one broad feature, I will first make some preliminary submissions."

'Remit of Magistrate is Limited'

The first preliminary submission made by Mr. Sibal was with respect to the limit of the Magistrates mandate at the time of the issuing process. Arguing that when undisputed facts do not raise strong suspicion then the Magistrate is required to direct for further investigation. He submitted -

"I only said that where there is a contradiction, that can only be seen in a trial after further investigation. 161 statements cannot be preferred over another 161 statement. The remit of the Magistrate is limited…On this material is there a strong suspicion that there was commission of offences. The Mag. cannot give opinion on 161 statements. That is the reason I had placed undisputed documents on the basis of which no magistrate could have come to the conclusion that there was no strong suspicion that offence was committed…Where undisputed documents and material does not raise strong suspicion he would order further investigation. That is all that the Mag had to do."

'FIR is a piece of information, and not an encyclopaedia of facts'

Refuting the SIT's argument that it could not have looked beyond the complaint, Mr. Sibal submitted that complaint was a piece of information, on which the Supreme Court had asked SIT to conduct investigation.

"Secondly, the SIT said that you cannot look beyond the complaint. This is not a private complaint, this is a piece of information. On which the SC asked the SIT to take it into account and investigate the matter. What is an FIR? It is a piece of info. and not an encyclopaedia of facts."

'90% (of the material) does not relate to Gulberg'

Pointing out the contradiction in SIT's argument, Mr. Sibal submitted that it vehemently argued that Zakia's complaint had gone beyond the incidents that took place in Gulberg, and in the same breath emphasised that the evidence so collected on the basis of the complaint was in connection with the Gulberg trial. He argued -

"A submission is made that it is related to Gulberg. But the complaint is not related to Gulberg. 90% does not relate to Gulberg. You say the complaint is beyond Gulberg but you look at it with respect to Gulberg."

'Changing stands and changing positions are the order of the day' - SIT itself pleaded larger Conspiracy at the Gulberg trial

Mr. Sibal highlighted that SIT itself had taken the plea of larger conspiracy at the Gulberg trial, even when the material that is available today was not there with SIT. He argued -

"The next thing that I'll demonstrate is that conspiracy is only discovered in the course of investigation. The SIT pleaded a case of larger conspiracy in Gulberg, rejected by the Court. Unfortunately, then this material was not available and could not have been used. Yet they pleaded, larger conspiracy. Times change, laws change…Changing stands and changing positions are the order of the day. How can an SIT, which pleaded conspiracy, say that there was no conspiracy now."

Findings of Commission of Enquiry not admissible

Controverting the State's reliance on the findings of the inadmissible findings of the Commission of Enquiry, Mr. Sibal argued -

"They have been quoting para and verse from the Commission of Enquiry. We were at least taught in law school that nothing can be done on reports of the Commission of Enquiry, findings are inadmissible because it is not a court."

Relied on official records, not on Shreekumar

Mr Sibal averred that his reliance on Shreekumar was limited to the official record. The statement of Shreekumar corroborated the official records, he stated.

"I have relied on official records, I did not rely upon Shreekumar. I relied upon official records, corroborated by him."

He added that even when he had chosen not to deal with Sanjeev Bhatt's statement, SIT had largely dealt with the same.

"I have not mentioned Sanjeev Bhatt. They have made elaborate submissions on that. How is it relevant to the facts of the case?"

SIT did not even give the facts right - With respect to Rahul Sharma

It was clarified by Mr. Sibal that the CDRs that the SIT had claimed were in Rahul Sharma's possession till 2008, were in reality handed over in 2004.

"Their argument on Rahul Sharma was that why did he keep the CDRs till 2008. He had given it in 2004. The SIT did not even get the facts right. Rahul Sharma is not a star witness. If you stoke the fire, the pot will boil."

Never made motives of buildup

It was respectfully put forth by Mr. Sibal, that he had never delved into the motives of the buildup prior to 27th Feb, 2002. Arguing that SIT itself attempted to attribute such motive in their submissions, he stated -

"I have never made motives of buildup. The SIT said that if I was saying that the train was burnt by VHP. All I said was that if there was a buildup then it had to be investigated.

'If no violence till 1 o'clock, why did you call the army at 2'

Referring to the submission made by SIT with respect to the timing of the breakout of violence to be 1 o'clock, Mr. Sibal submitted -

"Another statement was made that there was no violence till 1 o'clock. If there was no violence till 1, why did you call the army at 2."

If state did everything, why did the Supreme Court stay the nine trials

Rebutting the claim of SIT and the State that the State Gujarat did their best prior and during the riots, Mr. Sibal argued -

"This also is somewhat curious. My Ld. Friend and SG had argued that the State did what it could, there was no issue. And the State took all steps. In 2003, the SC stayed the nine trials. Why did this court stay the nine trials?... In between what happened? The NHRC went to SC. That is how the appellant became an intervenor. The appellant (Teesta) who is now blacklisted, worked with the NHRC….And the Court said the burden should be shifted. The SIT never took any objection. Suddenly her (Teesta) image is being besmirched."

On SIT's argument about lawyer affiliated to VHP

Displeased, that the SIT does not see the offences committed by the VHP affiliated lawyers, which is otherwise capable enough to shock the conscience of the Court, he submitted -

"Arguments are made about what is wrong with VHP. In the tapes the lawyers who were PPs reveal things that they have done, which would shock the conscience of the Court. SIT says - how does it matter. If everything was hunky dory in Gujarat, why would NHRC seek transfer of trials."

'The Supreme Court never said look into only the complaint'

Mr. Sibal emphatically argued to establish the delink between the Gulberg trial and the proceedings by Zakia.

"Milords it is a fresh report. It was collected by SIT after the Court asked it to look into it. This material is not just the complaint, not just limited to Gulberg…The Supreme Court is aware that Gulberg trial is going on, they assign the Magistrate who took cognisance of the Gulberg matter, because Zakia was resident of Gulberg and for no other reason. The SC said that the Mag. will deal with the trial of the accused based on this final report. Not relating to complaint, not w.r.t. Gulberg."

Apprising the Court that the Supreme Court had never directed the SIT, as claimed by it, to only look into the complaint and no other material, he submitted -

"In 07.02.2013 order, it said that give all material to the complainant. It had nothing to do with the complaint. Where did the SC say that look into the complaint? The SC never said look into only the complaint."

'There is no common accused' - In Gulberg Trial and Zakia's complaint

Further, distinguishing Zakia's complaint from the Gulberg trial, Mr. Sibal submitted -

"The Gulberg FIR only refers to Gulberg attacks by the mob. Zakia's complaint is on 08.06.2006 about incidents from 11 districts of Gujarat. One has nothing to do with the other. In fact there is no common accused in the two…In Nov, 2003 SC stayed the trials. Then SIT in 2008 SIT appointed to further investigate 9 cases…Final order of SC in NHRC and stay on trial reflected...One of the PPs resigned that you SIT are not conducting the investigation properly. Then the Gulberg trial was put on hold…SIT had not provided documentary evidence with chargesheet...Further investigation in Zakia's matter. SC directs the Gulberg trial to be completed, Then closure report was filed…This is important, the SIT did not contest bail granted…Over the page, you will see that there were no common accused."

Judgements referred

Thereafter Mr. Sibal referred to State of Gujarat v. Afroz Mohammed Hasanfatta (2019) 20 SCC 539 to establish the role of the Magistrate at the state of issuing process. He argued -

"[Mag.] Only to be satisfied that there is sufficient ground to proceed. All the Mag. needs to do is read the complaint, understand content, issue process…The Magistrate is not to believe or disbelieve witnesses at this stage…[Mag.]Not to evaluate documents and its merits...The court not to embark on possible defences."

In this regard, referring to State (Delhi) Admin v. I.K. Nangiya (1980) 1 SCC 258, Mr. Sibal reckoned -

"This is by J. S.Murtaza Fazal Ali. I got the opportunity to argue before him. In fact I should tell your lordships, next year I'll compete 50 years at the Supreme Court Bar. I have seen the great voyage of this Court and had the privilege to argue before different judges."

Then, he referred to the State of Bihar v. Ramesh Singh (1977) 4 SCC 39 as reiterated in Nangiya.

Statement of Shreekumar

Reading from his compilation, Mr. Sibal retorted to the argument of SIT, that Shreekumar was not present during the riots -

"Much was made by the SIT that he [Shreekumar] was not there during the riots. But these are official documents, he did not have personal knowledge. We are relying on official records, he was referring to official records.

Explaining the ambit of submission, he added -

"The whole S6 and S7 [Sabarmati train bogies] could be avoided if they took heed of the Intelligence reports and acted on it. That is the submission."

CDRs produced by Rahul Sharma

On the issue of statement of Rahul Sharma, Mr. Sibal submitted -

"SIT said that the CDRs were produced only in 2008. CDRs [provided by Rahul Sharma] were available in 2004."

Material on Hate Speech

SIT had submitted that 2000 cases that were directed by Justice Ruma Pal [Supreme Court] to be re-investigated and which substantially dealt with hate speeches were undergoing prosecution. Per contra, Mr. Sibal argued -

"The hate material. I am giving your lordships all the undisputed material. SIT said people are being prosecuted in 2000 cases. How is that relevant for these material in our cases. When VHP advertisement says 'khoon ka badla khoon', why are they not arrested?..You [Sandesh Newspaper] bring out fake news. Police said nothing like this happened. SIT does not investigate and comes to your lordships and says 2000 people are being prosecuted.

Referring to the critique of Shreekumar by the SIT, Mr. Sibal averred -

"How is the SIT criticising Shreekumar, when the document is there. He is saying prosecute them (state officials). SIT said he said this because of supersession. But this was before supersession. Their own officer, Ashok Narayan said that he had brought it before the authorities but no action was taken…When officials are asking to prosecute, why did SIT not investigate. At whose behest were they doing all these. This is a complete cover up. I am sorry, but I have to use the expression."

Emphasising that all the material that have been referred to are official documents, he submitted -

"…All this is not Teesta Setalvad, these are official documents. Why is Teesta Setalvad bringing official documents and seeking justice is now a big concern for the State of Gujarat."

Applying the test 'if there is a strong suspension on the basis of evidence' to the present case

Applying the test evolved by the Supreme Court, that if there is a strong suspension on the basis of evidence, then Magistrate ought to issue process, to the evidence in the present case provided by the Petitioner, Mr Sibal took the Court to the Protest Petition.

"Kindly come to Vol VA. We will apply the test to material now. Kindly come to page 92-94. Now we apply the test if there is a strong suspension on the basis of the evidence.

Tehelka Transcripts

Statement made by Anil Patel

Mr. Sibal read -

"[Reads from document] 'Bolt them indoors and set them on fire...we will take care of whatever happens after that...All properties in Dhansura were destroyed...' - this is on record but Mag. does not deal with it. If you read this can you ever say that there is no strong suspicion that an offence had been committed."

The Bench enquired, "Whose statement is being recorded?"

Mr. Sibal responded, "Anil Patel."

He added -

"So, Anil Patel, not made an accused. No investigation. Strong suspicion. He should have been charged…This is not the Anil Patel that SIT was referring to. I never referred to that (one referred to by SIT) Anil Patel…If there was genuine, fair investigation, SIT would have taken them (Anil and others) into custody."

Statement of Babu Bajrangi

Mr. Sibal submitted -

"Please come to pg 236, it is part of the statement of Bajrangi, who is convicted in Naroda Patya. The Magistrate said because he is convicted in Naroda, that is the need of the matter."

The Bench asked Mr. Sibal, "In Naroda, same material was relied on?"

Mr. Sibal replied, "Part of this had been relied on in Naroda Pateya."

Statement of Bharat Bhatt

Mr. Sibal read -

"Now come to 270 -271. I am not reading everything. Kindly see this statement is by Bharat Bhatt…They were involved in settling cases, giving money to ensure there is no prosecution."

Statement of Deepak Shah

Mr. Sibal submitted -

"Then 289. I am giving you a bird's eye view. Now, this is Deepak Shah - this is the meeting on the night of 27.02.2002…They were perpetrating violence, no investigation, no question. It is not as if the Magistrate did not have these materials before it. If you do not do an investigation, your prosecution will lead you nowhere…Maybe you will get his prosecution, but not about the conspiracy.

It was further submitted -

"Then, 292-293. the question is - "did the police support the mob?" "Yes, the police supported it...""

The Bench enquired, "He is speaking about which area?"

Mr. Sibal responded, "This is Sabarkantha, Milords."

Concerned that if the statements were already a part of a trial, then the same cannot be referred to, the Bench made further enquiry -

"There is a separate trial for that, where conspiracy charges are there?...If you are reading some material that is relevant for another case, already tried, that cannot be relied on."

After seeking time to revert Mr. Sibal responded, "There is no separate trial."

For clarity, the Bench stated -

"Apart from these 9 trials there were also other trials. With respect to this incident, there could have been a trial."

Resorting to the instruction that he had, Mr. Sibal informed the Court -

"Our instruction is that there is no trial, no prosecution on this material."

Elucidating his role in the present proceeding. Mr. Sibal submitted -

"I am not here to seek conviction. I am here to tell you that first of all the SIT should have taken them into custody, investigated, filed chargesheet."

Statement of Dilip Trivedi

Mr. Sibal submitted -

"Then Milords, pg. 303. This is transcript of Dilip Trivedi, the famous PP. He is coordinating with defence counsel. Now he is not prosecuted in any case, yet these are offences. This is the nature of evidence available with the Mag."

Pointing put that the closure report filed by the SIT elaborately deals with statement of the then Chief Minister, in the electronic media after the riots, Mr. Sibal stated that he would not get into the same -

"The closure report only deals with a statement in electronic media of the then CM, which I did not get into…I have limited myself to undisputed documentary evidence. The SC order, as I understand, is that all these statements are 161 statements, this cannot be used in trials."

Statement of Haresh Bhat

Mr. Sibal read -

"Now Haresh Bhatt, pg 381 it starts. Kindly come to 401. To the question "Sirf talwar ayi thi", …they [Bhatt] said they made rocket launchers…. pg. 416 [inter alia, refers to gathering]"

At this junction the Bench pointed out -

"Gathering is different from riots, isn't it?"

Mr. Sibal continued reading the transcript -

'I have a gun factory...made bombs there'. Why was he not arrested and investigated after arrest…We cannot just wish it away and argue that the pot keeps boiling."

The Bench enquired, "Is Haresh Bhatt a part of your complaint ?"

Mr. Sibal answered in negative.

Referring to his vehement response the Bench told him that the question was put forth only for the better understanding of the Court.

Mr. Sibal responded -

"I am agitated that the SIT had just turned a blind eye to all this. This is my concern. My concern is not that A should be convicted or B should be convicted. This cannot happen in my country. Your lordship has to rise to the occasion to make sure that this can never happen again."

On a lighter vein, the Bench remarked -

" At the moment we will rise for the day."

The Bench will continue hearing the matter tomorrow.

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