Wednesday, September 27, 2023

Zakia Jafri plea: Senior Advocate Kapil Sibal lists things SIT didn’t investigate in its Gujarat riots probe

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The Supreme Court today asked Senior Advocate Kapil Sibal to submit a chart mentioning the SIT closure report and the Magistrate’s opinion and the High Court’s opinion in respect to that, if any, in reference to the points raised by him. 

Senior Advocate Kapil Sibal said he will submit the chart definitely by Monday. In the hearing today, Sibal continued his arguments on behalf of Zakia Jafri explaining the lacunae on the part of the SIT that had led to clean chit to VHP people. “What kind of investigation? What kind of trial? You want to exclude from the memory itself what had happened,” he asked. 

“There are too many details, I can’t go again and again, there are so many details not dealt with in the protest petition. Then, there is delinquency on part of officials,” he said. 

He said,

“We have set out the calls done by these people, but nothing was done. Accused PC Pandey speaks to accused Jaideep Patel, VHP General Secretary and analysis shows that he was connected to him throughout the day. Very interestingly the commissioner was in his office all day.”

“Connected with the accused, it’s “scandalous”. Can anybody believe that? He has knowledge of the incident…what was the commissioner of police doing? We know what he was doing but that needs to be investigated,” Sibal added. 

“Now Milord, this only sets up the process, the CrPC can only set out the process. Without pure unbiased procedure, it is violated. You can’t protect one accused person and investigate another person for a reason best known to you,” he said. 

“The umbilical cord which connects the CrPC to Article 21 is pure and unbiased investigation. The investigation machinery must ensure that if they are looking for the actual evidence, they must do it without discriminating. What Article 15 says they should follow it, State should not discriminate that is what Article 15 says. The etymology of the word investigation, there is a Latin word called vestigare meaning ‘track or trace’ and from that came the word investigate and the word investigate came in the 16th century. What it means is ‘track out, trace out’. Therefore the CrPC ensures the tracing of the truthfulness of the crime and that’s the heart of heart investigation,” Sibal argued. 

SIT not investigating just sitting: Kapil Sibal

“If you accept a potential accused’s statement, then it amounts to no investigation. SIT was sitting not investigating because the whole purpose of investigation is syntactic fact finding. So the footprint of truthfulness of the individual has to be investigated. You have to look at if not, then there is no investigation. The process is only set out in the act but the tracing out is the heart of the investigation. I am not talking particularly about this case but all other cases also. The whole process of investigation is polluted why? Because some or the other person has to protect somebody. That is right because Milord’s judgments will also depend on that default investigation. Therefore, the judgments would not have the actual meaning as investigation is not proper,” he said.

“Why was the SIT set up? Because the NHRC moved to the Apex Court saying the local police were not investigating properly. They did not want to give the matters to the local police. That is why all 9 matters were given to SIT.” 

No FIR lodged in my case: Kapil Sibal 

“The moment the FIR was lodged it would have been investigated by local police. When CBI investigates a matter, even if local police are investigating, they give a RC number. And here there was no FIR lodged in my case because then it would go to the jurisdiction of magistrate.”

“The SIT is not like a police force, it was sui generis.”

“Just as an aside, I want to mention I remember in 1984, I was living in Maharani Bagh there were to two houses of my friend and the mob came and the houses were pre-identified, obviously it was pre-decided because they had known which house to mob, they had decided to come there as it was a conspiracy. It was pre-identified.”

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“There is an interesting chart in this volume milords. The police officer of Ahmedabad said that the funeral processions were peaceful in Ahmedabad and the messages show there was nothing peaceful about the processions. There was nothing peaceful and this man says everything is peaceful. There’s another interesting thing, everything was in Gujarati, it took us months to translate and understand the whole thing and the SIT head (R.K.) Raghavan, who does not understand Gujarati, didn’t even translate. This should have been done by the SIT at least. The analysis should be done by SIT: When the protest petition filed what did they do? Nothing was done. There must be a reason why the commissioner passed a statement that everything is peaceful. How? Why did you say that? How were you trying to help?”

“As an accused (PC Pandey) he becomes DGP of Gujarat. Pandey was Joint Commissioner of Police in Ahmedabad when during the 2004 Ishrat Jahan case, there were police encounters resulting in death. This all should have been done by the SIT. We have analysed all these persons, Shivanand Jha, from call details records. He received 63 calls from various persons during the incident. He had made calls to Gujarat Ministers, he had called Maya Kodnani,” Sibal further stated. 

Duty of investigating agency to collect evidence: Kapil Sibal

The Senior Advocate said,

“The State must stand for the victims, so that the victim must get justice, it’s the obligation of the prosecution. If this philosophical stand was taken by the State then the State must stand for the Victim. It’s obligatory on its part. Not in terms of compensation. The investigation agency is duty bound to collect all evidence, at least the victim should have the satisfaction that justice prevails and every possible investigation has been done to protect their rights. Otherwise the victim is doubly targeted, one the victim suffered the loss because of the mass massacre and second the victim is not getting the justice he deserves. The victim deserves pure investigation. Before anything, it is a duty of SIT that the channel of investigation is pure and unbiased. That was lost in the fashion which I have demonstrated.”

There are instances where it was necessary to investigate but the SIT did not investigate: Sibal

“What should have been done to protect the CDs? Each statement of the SIT is rebutted here. Messages were deliberately ignored by the SIT. The afternoon of 27/2 the bodies arrived. We have given names, time and place and messages related to mass mobilisation and hate speech. 3000 workers were present at the hospital, 500 persons blocked traffic and 26 dead bodies were identified, vehicles set on fire and SIT says it is peaceful? How do the RSS people reach there? Calls were not blocked; these should have been done on time. Only Jaideep informed them to come. No call logs were seized. It was bound to happen. Incidence of this magnitude, emotions had to run very high. The SIT ignored everything.”

Inaction during investigation not relevant regarding “larger conspiracy”: Supreme Court

“The Supreme Court said, ‘Inaction during investigation may not be relevant regarding larger conspiracy.’ Inaction is a subsequent event. There is a difference in inaction during crime and inaction in investigation. That is the distinction we are pointing out. You may be right there.  How is this relevant for a larger conspiracy? For this inaction only, SIT came in. We are just indicating to you.”

“Look at this point of view, there is a police manual about what is to be done and if the officers are not following the procedure in the manual and the question arises why it was not followed and why the SIT did not investigate the same. This is the conspiracy they did on purpose,” Sibal replied. 

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He said,

“Suppose I make an allegation of a larger conspiracy, it is found out that there are serious offences which have been committed. What is the role of SIT? It was to take note and arrest the man. The law is clear, if the complaint was about a larger conspiracy and they discovered what serious offence has been committed and the magistrate should have taken action.”

“Please read the State Intelligence messages which are regarding acts of violence committed by Kar Sevaks while returning from Ayodhya in Sabarmati Express before reaching Godhra. There were intelligence reports regarding communal tension. It is clear if the proper preventive measures had been taken, all of this could have been avoided,” he added. 

Tehelka sting discloses making of bombs by VHP member: Sibal 

“The Tehelka sting disclosed about the making of bombs in the cracker factory of VHP person where it was disclosed that VHP had played a lead role in the riots. The CDs were found authentic by the CBI. Anil Patel is not investigated and never arrested. See what the closure report says about him. No reference to Patel, despite the transcript. This is an offence in itself. This is enough to convict the man. What is SIT doing all this long?”

The Supreme Court will continue its hearing next Tuesday. Zakia Jafri, the widow of former Congress MP Ehsan Jafri, had moved the Apex Court against SIT’s clean chit to Narendra Modi, the then Gujarat chief minister. Ehsan Jafri 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 resulting in riots in the state.

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The three key issues in Zakia Jafri petition are;

Whether the Magistrate was duty-bound to examine any evidence in addition to the SIT’s closure report while disposing of her protest petition?

Whether the Magistrate addressed all the complaints in her 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?

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