By partly allowing the revision petition filed by Zakia Jafri, the High Court granted her the liberty to make a prayer for further investigation regarding larger conspiracy angle in the Gulberg Society massacre case occurred during Gujarat riots of 2002. Zakia Jafri, the widow of Congress legislator Ehsan Jafri who was killed during mob attack in Gulbarga Housing Society during the riots, had filed the revision against the order dated 26.12.2013 of the Metropolitan Magistrate which had rejected her complaint alleging that the riots were orchestrated by conspiracy involving top politicians and officials, including the then Chief Minister Narendra Modi. While doing so, the Magitrate accepted the closure report filed by the Special Investigation Team(SIT) constituted by the Supreme Court, which had ruled out conspiracy angle in riots, exonerating the state administration.
Zakia Jafri filed a complaint on 06.08.2006 before the Director General of Police alleging larger conspiracy behind the riots. When no FIR was registered on the complaint, she moved the Gujarat HC, which declined interference. She approached the Supreme Court. Earlier, the Supreme Court had constituted a Special Investigation Team for monitoring the investigation in riot related cases, as per directions in National Human Rights Commission v. State of Gujarat(2009) 6 SCC 767. The Supreme Court directed the SIT to look into the complaint of Zakia Jafri as well. Pursuant to the orders of the Supreme Court, the SIT looked into the complaint and conducted further investigation in the Gulbarga Society case under Section 173(8) Cr.P.C regarding the involvement of certain police officials and a then minister of State cabinet one GordHan Zadafia. As per directions in Zakia Nasem Ahesan v. State of Gujarat and others (2011) 12 SCC 302, the Supreme Court directed the SIT to file report before the court which had already taken cognizance of Gulbarga Society case. The Supreme Court had also clarified as follows:- However, at this juncture, we deem it necessary to emphasise that if for any stated reason the SIT opines in its report, to be submitted in terms of this order, that there is no sufficient evidence or reasonable grounds for proceeding against any person named in the complaint, dated 8th June 2006, before taking a final decision on such 'closure' report, the Court shall issue notice to the complainant and make available to her copies of the statements of the witnesses, other related documents and the investigation report.
Conspiracy was sought to be established on following factors :-
Evidences sought to be relied upon for the said purpose are as under:
(1) Statement of Mr. Sanjiv Bhatt, IPS;
(2) Statement & diaries of Mr. R.B. Sreekumar, DGP, and that of Mr. Rahul Sharam;
(3) The note of Amicus Curiae;
(4) Hate speeches;
(5) IB messages and phone records; and
(6) Reports of constitutional authorities and other dignitaries;
(7) Sting operation of Tahalka;
The learned Metropolitan Magistrate while accepting the report of SIT stated three aspects: (i) that no Court has directed it to register the complaint and (ii) there being already one complaint in respect of incident registered with respect to Gulbarga Society, it cannot direct the same once again and (iii) it would have no jurisdiction to direct further investigation in view of the investigation / further investigation by SIT at the direction of the Apex Court.
The Magistrate adverted to the materials on record and came to the conclusion that no case was made out to take cognizance on the complaint differing from the report of SIT.The High Court in revision agreed with the Magistrate in holding that there was no material to take cognizance for a fresh complaint of larger conspiracy. The statements of Ex-IPS official Sanjiv Bhatt that he the CM had issued directions in a meeting held on 27.02.2002 to go slow on rioters were held to be unworthy of credence, in the light of the judgment of the Supreme Court in Sanjiv Rajendra Bhatt v. Union of India (2016) 1 SCC 1, which had discredited his statements.
Regarding the allegation of parading of dead bodies to incite violence, it was observed that the dead bodies were brought to Ahmedabad as many of them belonged to Ahmedabad and it was the nearest centre for the relatives to identify them. The contrary conclusion entered by the Justice Nanavati Commission in that regard was discarded stating that it cannot be treated as evidence in criminal proceedings.
With respect to the allegations of hate speeches, the SIT report was as follows :-
"On allegations of the communal riots being result of the hate speeches of Shri Narendra Modi, the then Chief Minister of State of Gujarat, all observations made by the SIT, in this regard, have been agreed upon by the trial Court. The SIT was of the opinion that the statements allegedly made by the then Chief Minister have been twisted, who had urged to maintain peace and order to the public at large and the functioning of the government during chaotic situation also need to be looked into".
The Magistrate endorsed the report. However, the High Court refrained from looking into this aspect as the appeal against the convictions in Gulberg Society case was pending before the High Court, in which the trial court had rejected the theory of larger conspiracy. Hence, the High Court expressed that no interference in the revisional jurisdiction in this issue would be desirable.
The Court did not find the statements of R.B Sreekumar and Rahuls Sharma inspiring enough. Likewise, it did not choose to place reliance on Tehelka sting operation findings. It was observed as follows :-
"every incident of riot that had taken place in the aftermath of Godhra incident, extensive investigation had taken place in each of them and more particularly, in nine vital matters , under the direct guidance and gaze of the Honourable the Apex Court and therefore, if the Court does not find this operation and its evidence as the part of larger conspiracy, no error much less a significant error of law can be linked with such findings".
The Court also confined itself to the jurisdictional limitations of revision powers under Cr.P.C, and thought it fit not to upset the Magistrate’s order on the possibility of taking an alternate view. It was observed as follows :- As noted in the beginning even if this Court can also arrive at a different conclusion on the strength of the evidence that had been adduced before the Court concerned, however, it is not exercising appellate jurisdiction, and therefore, unless there is an outright illegality or perversity in the findings revealed, it would not permit replacing its own findings and observations as that is the well settled law.
However, the High Court found fault with the order to the extent it held that there was no power available to order further investigation. It was observed that "this Court needs to note that the learned Magistrate has held in no unclear terms that it has no power of further investigation in the matter on hands. This appears to be a clear error in law in limiting his own jurisdiction despite directions of the Apex Court and the mandate of statute. The Magistrate had held that no further investigation could be ordered as the investigation was monitored by the Supreme Court. However, this was a misconception as the Supreme Court had clearly left open the powers of Magistrate to order further investigation, if felt needed, in its directions in (2011) 12 SCC 302".
Therefore the Court granted her the liberty to seek further investigation, with the following direction :-
"it is directed that the petitioner, if, is desirous to agitate the issue of further investigation, would be at liberty to raise the same before the Court concerned and to that limited extent, such a plea of the petitioner may be examined by the concerned Court. Only if, it finds any need to direct further investigation, it may so do it in accordance with law bearing in mind the findings and observations of the Apex Court in its decision of ‘JAKIA NASIM AHESAN JAFRI & ANOTHER VS. STATE OF GUAJARAT AND OTHERS’ and also the observations and conclusions of this Court in the present revision application".