Senior Advocate Kapil Sibal said in the Supreme Court on Wednesday that communal violence is like lava erupting from volcano, which leaves the ground fertile for future revenge while mentioning he has lost his grandparents to the riots during Partition.
He was arguing on behalf of Zakia Jafri, the widow of former Congress MP Ehsan Jafri, who was killed during the 2002 Gujarat riots. Jafri has challenged the Gujarat HC’s order on October 5, 2017, upholding the magistrate court’s decision to accept the closure report of the SIT. A three-judge bench of Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar heard the matter through video conferencing.
He said a part of the transcripts were played by TV channel Aajtak. The matter had gone to the Gujarat High Court. The High Court held that the transcripts (of Tehelka sting) are authentic. “I will show the High Court judgment.”
The Supreme Court bench said the proper course to proceed would be to analyze the points raised in the protest petition and to see how the Magistrate dealt with them. “Otherwise we will be lost..in 20,000 pages,” said Justice Khanwilkar.
“There is no 161 statement in your complaint. Only preliminary investigation done in your case,” noted the bench.
“That’s right. But the investigation was to be done by SIT. Whether Tehelka tapes and other evidence is sufficient to take cognizance is for the Magistrate to decide. There are huge materials showing hate speech, again not acted upon (by the SIT),” Sibal replied.
Investigation by SIT not proper: Kapil Sibal
In case of conspiracy, there won’t be direct evidence. It can only be inferred from circumstances, for which you have to investigate, gather evidence, visit spot, record statements. None of these were done by the SIT, Sibal said.
Mentioning the flaws in the investigation, Sibal said Jaideep Patel’s mobile phone was not even seized. “He must have made several phone calls. If you don’t seize his phone, what investigation have you done?” He said the Tehelka sting tapes showed stockpiling of arms and ammunition by Bajrang Dal, VHP and Sangh Parivar members and conspiracy to gather diesel bombs and pipe bombs prior to February 27, 2002.
“Where did the conspirators meet? When did the consignments arrive? Most importantly, who paid for them,” he asked.
Sibal argued that the SIT had not supplied all the material to the complainant. The Supreme Court had stated that the complainant is entitled to all the material. All the signed statements shall be treated as the statement under Section 161 of the Code of Criminal Procedure, the Court had said earlier.
Gulberg Society Massacre
Sibal said, “This was a sui generis proceeding initiated by the Supreme Court and to be use in case related to Gulberg not related to any other case. All the people who were named as accused, their statements recorded. And all the people which we have named not been recorded. Anil Patel, Deepak Shah, Bharat Shah…then PC Pandey who was the accused….so, Milords, I just want to clarify these records.”
Had steps been taken, national injury could have been prevented: Kapil Sibal
Senior Advocate Kapil Sibal said they (State Police) had ample intelligence report, regarding Sabarmati Express prior to its reaching Godhra. “Had the steps been taken as per the Police Manual we could save the national injury this, this again was not investigated.”
“This is the issue of hasty post-mortem and disposal of dead bodies. There is also telephone conversation regarding the post-mortem. The post-mortem was done on railway tracks. If the post-mortem was done on railway track who had called the doctor to Godhra? There were irregularities in that which was the matter of investigation. Why this was done in a hasty manner?”
“All the doctors declared the deaths of 158 victims due to burn and shock. There was some controversy with regard to this. We had said there was a violation of the procedures…photographs were taken of these mutilated bodies which had caused further repulsion. The SIT never seized any of the phones. This was never investigated,”
He said, “Legality and illegality should be examined. Then the bandh call was made. The parading of the dead bodies was also part of the conspiracy. The messages sent to all the police station regarding the death of persons in Godhra. So the Gujarat Police knows the possibility of violence in advance but that was not disclosed by the SIT. This was never brought to light. The decision to take the bodies to Ahmedabad was taken by the Government as per the DGP. It was done behind closed doors…”
Sibal said it’s a matter of record that “hate speeches” were made. He asked, “What was the SiT doing? Article 21 says you have to protect people as per the procedure set out in the Constitution. The SIT had not done it. If an investigation was not done properly then what we do? SIT has to explain why it had not done it…”
“Inflammatory slogans were made. Acharya Giriraj Kishore of VHP came to the hospital where victims were admitted. His statement was recorded by the SIT. Where he spoke to media persons. It was an admitted fact. He said send “Bandobast”,” he added.
It should be investigated: Kapil Sibal
“According to us it should be investigated, and the conspiracy behind it. What had happened? In these cases, the police had not registered any of the FIR. I am telling milordship what happened on the ground. Even someone who had complained that my father, mother, sister and brother died, and the police, if not register FIRs, they should have at least added the names of accused in the already registered FIR.”
The Court will continue its hearing tomorrow. Ehsan Jafri was a member of the 6th Lok Sabha for the Congress and was among the 68 people who died in the Gulberg Society Massacre during the 2002 Gujarat riots, a day after the Sabarmati Express was burned at Godhra killing 59 people and leading to riots in the state.
The three key issues in the petition are;
Whether the Magistrate was duty-bound to examine any evidence in addition to the SIT’s closure report while disposing of Jafri’s protest petition?
Whether the Magistrate addressed all the complaints in Jafri’s protest petition?
Whether the Gujarat High Court made factual and legal errors when upholding the Magistrate’s decision to dismiss Zakia Jafri’s protest petition?