The Supreme Court on Friday dismissed a petition filed by Zakia Ehsan Jafri challenging the closure report filed by SIT discarding the allegations of larger conspiracy by high state functionaries including the then Gujarat Chief Minister Narendra Modi and 63 others in the Gujarat riots of 2002 that ensued the Godhra train massacre.
A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar had heard the submissions made by Senior Advocate, Mr. Kapil Sibal, appearing on behalf of Zakia (appellant) and Senior Advocate, Mr. Mukul Rohatgi, appearing on behalf of SIT over a span of about fourteen days. The sheet anchor of Mr. Sibal's argument was that the SIT did not conduct investigation in the crucial aspects, which are essential to establish the allegation of larger conspiracy at the highest level. Per contra, Mr. Rohatgi had vehemently defended the SIT, which he believed had often exceeded its remit in the pursuit of justice.
During the 2002 Gujarat riots, Congress MP, Ehsan Jafri, Zakia's husband was brutally slain in the Gulberg Society massacre, a day after the Sabarmati express was torched in Godhra. On 08.06.2006, she had filed a complaint against top officials, bureaucrats and some ministers, including the then Chief Minister of Gujarat, Narendra Modi, alleging inaction, complicity and conspiracy. As the State police did not take any action, Zakia was constrained to approach the Gujarat High Court seeking the complaint to be treated as an FIR. While dismissing the petition, the High Court had asked her to file an appropriate private complaint and invoke Section 190 CrPC read with Section 200. The dismissal by the High Court was challenged before the Apex Court. At that point in time the writ petition filed by the National Human Rights Commission (NHRC) critical of the law and order situation in Gujarat was before the Supreme Court. By order dated 26.03.2008, the Court constituted a Special Investigation Team (SIT) to investigate 9 cases of the 2002 riots. When Zakia's appeal came up for hearing, on 27.04.2009, taking into consideration her concerns, the Supreme Court directed the SIT to 'look into the matter and take steps as required in law and give its report within three months'. Eventually, SIT examined 145 witnesses in connection with the complaint dated 8th June, 2006. On 19.01.2010, the SIT sought further time to complete the investigation with respect to Zakia's complaint. The trial concerning Gulberg society was proceeding contemporaneously.
By its order dated 05.05.2011, the Court had permitted the Amicus Curiae to examine the report filed by the SIT on the further investigation in Zakia's complaint. After interacting with all concerned and scrutinising SIT's report, the Amicus Curiae submitted his report on 25.07.2011. Considering the issues mentioned in the said report, the SIT submitted its further report after investigation, on 25.07.2011, which was placed before the Apex Court. By order dated 12.09.201, Chairman, SIT was directed to forward the final report along with the entire material collected by it to the trial court, which had taken cognisance of the Gulberg society matter. Accordingly, on 08.02.2012, the SIT had presented the final report before the concerned Metropolitan Magistrate (MM). In the final report the SIT had culled out 30 allegations and addressed them. The report reflects that though the Amicus Curiae had agreed with most of the recommendations, he was of the view that prima facie offences u/s 153A(1)(a)&(b), 153B(1)(c), 166 and 505(2) IPC were made out against the then Chief Minister of Gujarat. Subsequently, Zakia had filed a protest petition before the concerned MM on 15.04.2013. By a speaking order dated 26.12.2013, the protest was rejected and the final (closure) report filed by the SIT was accepted.
Decision of the Supreme Court
Though there was a delay of 216 days in filing the Special Leave Petition, and the reasons provided for such delay was 'blissfully vague and bereft of any material facts and particulars', considering the gravity of the subject-matter, the Court had ignored/condoned the delay.
Objection regarding locus of Teesta Setalvad open to be decided in appropriate case
The respondents had vehemently disputed the locus standi of Teesta Setalvad in challenging the impugned order as petitioner No. 2 in the present SLP, arguing that her involvement is motivated by the oblique intention to malign the State of Gujarat. It was submitted that in a previous proceeding before the Gujarat High Court, the Court had ruled against her joining in as a party, which being not reversed by the Supreme Court had already become final. She was also accused of vindictively persecuting this lis for her ulterior design by exploiting the emotions and sentiments of Zakia. The Court kept the objection of the respondents open in this regard, but decided to examine the merit of the matter at the instance of Zakia alone.
Remit of the SIT to investigate the matter further
On 08.06.2006, FIR had been filed with respect to the incidents that took place in Gulberg Society on 28.02.2002 including the attack on Ehsan Jafri. Under the aegis of the Apex Court, the SIT was investigating four crimes with respect to the Gulberg Society, when Zakia's appeal came up before it. When in its order dated 27.04.2009, the Court had directed SIT to look into Zakia's matter, it was aware of the on-going investigation in respect to the Gulberg society matter, wherein the allegations of criminal conspiracy and commission of crime pursuant to the conspiracy was already being probed. Moreover, by order dated 07.02.2013, the Apex Court had 'consciously directed' to treat statements recorded in connection with Zakia's complaint under Section 161 and to form part of the report submitted by the SIT to the trial court which had taken cognizance of the Gulberg society matter, treating it as a police report under Section 173(2) CrPC. Therefore, the remit of the SIT in respect to Zakia's complaint was to look into the allegations that were not already being investigated in the four crimes in relation to the Gulberg Society matter. SIT's scope was thus limited to the 'allegation of larger criminal conspiracy at the highest level resulting in mass violence across the State during the relevant period'.
Remit of the Magistrate
The Supreme Court while passing its order dated 07.02.2013, directed the statements recorded in connection with Zakia's complaint to be used only in the proceedings relating to the said complaint and nowhere else. Neither FIR was directed to be registered based on the complaint dated 08.06.2006 nor the Gulberg trial was stayed pending investigation in Zakia's complaint. The Bench opined that the remit of investigation and examination pertaining to the said complaint being limited, the ordinary course adopted by the Magistrate under the Cr.P.C. could not have been invoked in the present case. The Magistrate was obliged to examine the final report and the protest petition only in the context of allegations of larger conspiracy at the highest level.
Allegation of Larger Criminal Conspiracy At the Highest Level
The allegation of larger conspiracy was primarily in reference to the utterances made by the then Chief Minister in an official meeting held on 27.02.2002 evening in Gandhinagar; the same day the Sabarmati train was set ablaze. In this regard reliance was placed on the report of the Concerned Citizens Tribunal, a private panel of former Judges of the Supreme Court; testimony of Haren Pandya, Minister of State for Revenue and R.B. Sreekumar, former ADGP Intelligence; and that of Sanjiv Bhat, then DCI (Security), who had claimed to have been present at the meeting. As per the SIT's report, all the other officials present at the meeting had denied Bhat's claim and their statements have been substantiated by relevant documentary evidence. Moreover, his phone records did not reflect his presence at the CM's residence. In another proceeding, the Supreme Court had made adverse comments about Bhat's general conduct. SIT had noted that R.B. Sreekumar being a disgruntled officer, his testimony was not reliable. Further, as noted in the SIT report, the testimony of Haren Pandya, who at the time was not a cabinet minister and as per his mobile records was not present at the meeting, did not inspire confidence. Therefore, the final report had concluded -
"In the light of the aforesaid discussions, it can be concluded that a Law & Order review meeting was in fact held by Shri Narendra Modi, Chief Minister at his residence late in the evening of 27-02-2002. However, the allegation that the Chief Minister instructed the Chief Secretary, DGP and other senior officials to allow the Hindu community to give vent to their anger on the minority Muslims in the wake of Godhra incident is not established......"
After going through the final report and the other documentary evidence in this regard, the Bench, in the present SLP opined -
"We find force in the argument of the respondent-State that the testimony of Mr. Sanjiv Bhatt, Mr. Haren Pandya and also of Mr. R.B. Sreekumar was only to sensationalize and politicize the matters in issue, although, replete with falsehood. For, persons not privy to the stated meeting, where utterances were allegedly made by the then Chief Minister, falsely claimed themselves to be eye-witnesses and after thorough investigation by the SIT, it has become clear that their claim of being present in the meeting was itself false to their knowledge. On such false claim, the structure of larger criminal conspiracy at the highest level has been erected. The same stands collapsed like a house of cards, aftermath thorough investigation by the SIT.
Besides exposing the falsity of the claims of these two persons, the SIT has been able to collate materials indicative of the amount of hard work and planning of the concerned State functionaries in their attempt to control the spontaneous evolving situation of mass violence across the State of Gujarat, despite the handicap of administration including the inadequate State police force required to be replenished with central forces/Army, which were called without loss of time and the repeated appeals made by the then Chief Minister publicly to maintain peace."
Allegations of Larger Criminal Conspiracy, in a Way, Abandoned by Appellant, Says SC
Mr. Sibal, had very succinctly put forth that the appellant sought no further investigation with respect to the CM's review meeting held on 27th Feb, 2002. In the light of the same, the Bench noted -
"As aforesaid, we are of the considered opinion that the enquiry to be made in this case is essentially regarding the allegations of larger criminal conspiracy at the highest level. That itself has, now, in a way, been abandoned by the appellant in this appeal. It must follow that no other aspect needs to be examined in this appeal as the finding of the Magistrate and of the High Court in that regard, is being allowed to become final."
It further observed that the allegation of larger conspiracy was largely based on the 'sensational revelation' in the testimonies of Bhat and Pandeya, which were established to be false by the SIT.
Dereliction of duty cannot be basis to infer pre-planned criminal conspiracy
In the present SLP, the appellant pursued the allegation of larger conspiracy based on so-called undisputed extra-judicial confessions recorded in Tehelka tapes and undisputed official documents reflecting inaction of officials, arguing that there cannot be direct evidence of large conspiracy. The appellant has also alleged that the evidence of larger conspiracy involving bureaucrats, politicians, public prosecutors, VHP, RSS, Bajrang Dal and members of the State political establishment has not been enquired into by the SIT.
Calling the appellant's argument in this regard, 'nothing short of red herring', the Bench observed that to make out a case of larger criminal conspiracy it is required to establish a link indicative of meeting of minds of the persons involved in the commission of the crime(s). It was of the opinion that the link was not established -
"No such link is forthcoming, much less had been unraveled and established in any of the nine (9) cases investigated by the same SIT under the directions of this Court. Accepting the argument of the appellant would require us to question the wisdom of this Court and to hold that even the incident at Godhra unfolded on 27.2.2002 was also the outcome of alleged larger criminal conspiracy. Such a view would be preposterous."
It added -
"...absent tangible material suggestive of a chain or any perceivable link or connection with the unfolding of mass violence across the State, it is unfathomable as to how the SIT could have still recommended sending the alleged offenders for trial, much less would obligate the concerned Court to take cognizance on such unfounded allegations. There is no material forthcoming to indicate that there was failure on the part of intelligence to collect information and it was a deliberate act on the part of the State Government authorities. Whereas, the allegation is that intelligence inputs were collected and disseminated to concerned authorities, but not acted upon by the concerned officials in right earnest."
The Bench reckoned that inaction or negligence on the part of some officials would not amount to hatching a larger criminal conspiracy. Moreover, The SIT report also demonstrated that action was taken against the erring officers. However, it had also clarified that the remit of the SIT was to only look into the allegations of larger conspiracy at the highest level and not probe the failure of State administration.
Noting that the 'protagonists of quest for justice' are often detached from the ground realities, the Bench though it fit to remark -
"The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State.
Overrunning of State administration does not amount to hatching criminal conspiracy
The Bench opined that failure of the State administration to maintain law and order cannot be linked to a suspicion of criminal conspiracy at the highest level, which requires clear evidence of meeting of minds -
"The linking of such failures is not enough to entertain a suspicion about hatching of criminal conspiracy at the highest level, which requires a concerted effort of all the persons concerned and more importantly, clear evidence about meeting of the minds to accomplish such design, much less of causing and precipitating mass violence across the State."
It further stated -
"...overrunning of State administration is not an unknown phenomenon. It has been witnessed all over the globe during the second wave of pandemic, where the countries with even best of medical facilities crumbled and their management skills were overrun under the pressure. Can it be said to be a case of hatching of criminal conspiracy?...Breakdown of law-and-order situation if for short duration, cannot partake the colour of breakdown of rule of law or constitutional crisis. To put it differently, misgovernance or failure to maintain law-and-order during a brief period may not be a case of failure of constitutional machinery in the context of tenets embodied in Article 356 of the Constitution. There must be credible evidence regarding State sponsored breakdown of law-and-order situation; not spontaneous or isolated instances or events of failure of State administration to control the situation. Suffice it to observe that the breakdown of law-and-order situation in the State including attributable to the alleged inaction of the (State) duty holders, owing to spontaneous mass violence cannot be a safe measure to infer as being a part of the criminal conspiracy at the highest level of political dispensation unless there is clear evidence to so conclude regarding meeting of the minds of all concerned and their concerted efforts to commit or promote commission of such crime."
The material to substantiate the plea of larger conspiracy does not pass master with the requirement of actus reus and accompanying mens rea. One can be convicted for conspiracy only if it is established that they had agreed with the others that together they would accomplish the unlawful object of the conspiracy.
The Bench stated that factum of conspiracy can be inferred, but assumption cannot be made in the air -
" Indeed, the factum of conspiracy can be inferred, but absent any perceivable link, much less about the meeting of minds of all concerned, it is not open to assume conspiracy in the air."
Build-up of communal mobilisations, stockpiling of weapons, arms and ammunitions before the Godhra train carnage was investigated by SIT
According to the Bench, the allegations that SIT had not investigated the crucial matter pertaining to build-up of communal mobilisations, stockpiling of weapons, arms and ammunitions before the Godhra episode was baseless. Perusing the final report submitted by SIT, the Bench concluded that the relevant aspects have been adequately dealt with by the SIT.
"Accepting the argument of the appellant would require us to question the wisdom of this Court and to hold that even the incident at Godhra unfolded on 27.2.2002 was also the outcome of alleged larger criminal conspiracy. Such a view would be preposterous", the Court observed..
Tehelka tapes had been examined by SIT
Mr. Ashish Khaitan, then working with Tehelka had, in the guise of Piyush Agarwal of Delhi University, approached 18 individuals and recorded their conversation pertaining to post Godhra riots. The telecast of the sting operation was published on 27.10.2007 in television. Subsequently, NHRC sought CBI's report in this regard. The CFSL report had established the authenticity of the recordings. In addition to this, the SIT recorded the statement of 13 out of those 18 individuals. Consequently, the material from the sting operation was put before the trial courts in Gulberg Society, Naroda Patiya and Naroga Gaam matters. In the Gulberg society matter, the trial court had held that a sting operation at best can be a good corroborative material. The one person who has been named accused in Zakia's complaint on the basis of the Tehelka tapes is Babu Bajrang, who had already been chargesheeted, tried and sentenced to life imprisonment in Naroda Patiya matter.
The Bench clarified that its analysis of the Tehelka tape and its transcript is not a final determination regarding its evidentiary value.
In absence of corroborative material, evidence of sting operation is not sufficient to substantiate allegation of larger criminal conspiracy at the highest level
With respect to the Telehka tapes, apart from acknowledging that the SIT had adequately investigated the same, the Bench went on to note that no corroborative material was present against the individuals, apart from Babu Bajrangi, who were stung by the Tehelka operation.
"Absent such corroborative material, the evidence in the form of sting operation can be of no avail, much less to take forward the allegation of larger criminal conspiracy at the highest echelon of the administration. No evidence regarding meeting of minds could be culled out from the statements of the concerned persons, much less to link the offenders named in the complaint of appellant."
Extra-judicial confession can be at best used against the maker and not against others
Another concern about the tapes, which was pointed out by the Bench was that the tapes, which in essence, are extra judicial confessions can be used only against the ones who have been stung by it and not the others. Moreover, neither the individuals (apart from Babu Bajrangi) were named accused in Zakia's complaint nor any links were found to establish conspiracy.
Dead Bodies were not paraded
Mr. Sibal had argued that the post mortem was done in an open yard at the railway station itself and then the dead bodies were paraded to Ahmedabad to 'arouse passion'. The Court could not countenance the submission as it was based on 'pure conjectures and surmises'. It was noted that the SIT report records the journey from Godhra to Ahmedabad had started around midnight and the dead bodies, escorted by Police, had reached Sola Civil Hospital, Ahmedabad at around 3.30 AM and there was no one on the highway at that hour of the night. In view of the same, the Court noted that the entire exercise was within the supervision of the State administration and there was no parading of dead bodies.
Cabinet Ministers were not present at the City Police Control Room
To substantiate their argument that it was a State sponsored violence, the appellant had alleged that two Cabinet ministers, I.K. Jadeja and Ashok Bhat were positioned in the DGP office and the Ahmedabad City Police Control Room and were issuing directions. As per the SIT report, IK Jadeja was in an empty chamber near DGP's chamber but no information was shared with him by the DGP. Jadeja had claimed that it is an established practice in Gujarat that in case of any natural calamity or law and order situation ministers extend their help. Though Ashok Bhat had admitted that he might have visited the Control Room for a few minutes on 28.02.2002 and/or 01.03.2002, he had not positioned himself in the Control Room, which was corroborated by his call records. The then Chief Minister had also denied the knowledge of presence of the two ministers in the control rooms.
Nexus between BJP leaders and police officers during riots have been dealt with by the SIT
The appellant argued that the CD containing tower details of Ahmedabad and Godhra demonstrate that there was a nexus between the BJP leaders and police officials and the same was not investigated by the SIT. The Bench noted that the SIT had found that the CDs collected by Rahul Sharma were copied by him on his personal computer kept at home and operated multiple times. He was also unable to produce the original copy. When SIT sought to verify the same, the phone companies informed it that data was not retained. The Bench noted that due to lapse of time the authenticity of the CDs could not be verified, but even then the call history by itself would not have been sufficient to establish a larger conspiracy.
"In absence of corroborative evidence, it would be merely a case of suspicion and not pass the muster of grave suspicion, which is the pre-requisite for sending the suspect for trial. This is the mandate in Section 173(2)(i)(d) of the Code, which postulates that the investigating officer in his report must indicate whether any offence appears to have been committed and if so, by whom. The opinion of the investigating officer formed on the basis of materials collected during the investigation/enquiry must be given due weightage. That would only be the threshold, to facilitate the concerned Court to take cognizance of the crime and then frame charge if it is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX of the Code."
Allegation that victims of riots and police firing was predominantly Muslim community was not established
On 28.02.2002l, when 17 persons were killed in police firing in Ahmedabad, 11 were Hindus and 6 belonged to the minority community. It was noted that given the circumstances police firing was inevitable. Therefore, the Bench held that the allegation that only one community was being targeted was not established by the appellant.
Motives attributed to transfers of officers does not establish larger conspiracy
The appellants had contended that the able officers were transferred despite the objection of the DGP and those who were willing to subvert the system were brought in. The Bench was of the view that it was an administrative decision to address the urgency of the situation. The Court said it failed to understand how this circumstance can be considered as hatching criminal conspiracy resulting into mass scale violence across the State.
Allegation that senior officers were rewarded is far-fetched
The Bench stated that the allegation that the senior officers were rewarded for their cooperation in the State sponsored violence was unfounded and far-fetched.
Pro-VHP advocates being appointed as public prosecutors cannot be linked with larger conspiracy
The Bench said it failed to understand how the act of appointing pro-VHP advocates as public prosecutors can be linked with the allegation of hatching a larger criminal conspiracy. More so, when the SIT had not received any complaint from any quarter during the trial of the Gujarat riot cases. It noted -
"Be that as it may, the allegation clearly overlooks the procedure regarding appointment of a public prosecutor. It begins with notification by the Collector and District Magistrate in the local newspaper and the eligible candidates are interviewed by a Board comprising of Principal Sessions Judge and District Magistrate. Such being the selection process for appointment of public prosecutors, the allegation under consideration has been rightly discarded by the SIT albeit after thorough analysis of all aspects relevant in that regard."
SIT was not expected to enquire into the utterances constituting Hate Speech
Reiterating that the remit of the SIT was to only look into the issue of larger criminal conspiracy at the highest level, the Bench opined that it was not obliged to enquire every utterance constituting hate speech at the time of the riots.
Allegation of State Home Department giving misleading reports about normalcy was analysed by SIT
The allegation that the State Home Department gave misleading reports about the normalcy to the State Election Commission, the Bench noted, was discarded by the SIT after scrutinising the relevant material.
Allegation that fire brigade did not respond to calls of minority community at the instructions of the Commissioner of Police is unfounded
The fire services in Ahmedabad fall within the jurisdiction of the Ahmedabad Municipal Corporation and not the State administration. The Commissioner of Police, Ahmedabad should not bear the brunt of non-action on the part of the fire brigade. The Bench was convinced that there was no tangible material to indicate that the Commissioner had directed the fire brigade official not to respond to calls of minority community. On the contrary, it is evident from SIT's report that blockades created at various locations were the real impediment for the fire brigade.
In conclusion the Bench held -
"For, there is no material worth the name to even create a suspicion (leave alone strong suspicion and a ground for presuming that the named offenders had committed an offence of larger conspiracy), indicative of the meeting of the minds of all concerned at some level; and in particular, the bureaucrats, politicians, public prosecutors, VHP, RSS, Bajrang Dal or the members of the State political establishment - for hatching a larger criminal conspiracy at the highest level to cause and precipitate mass violence against the minority community across the State during the relevant period. Such conclusion reached by the Magistrate and the High Court is unexceptionable.
In its judgment the Bench found the allegation of the appellant to be far-fetched and recognised the hard-work put in by the members of the SIT to expose disgruntled State officials who had made sensational, but false revelations -
"...we express our appreciation for the indefatigable work done by the team of SIT officials in the challenging circumstances they had to face and yet, we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat alongwith others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation. Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law."
Case Title : Zakia Ahsan Jafri and another versus State of Gujarat and another | Diary No.34207/2018
Citation : 2022 LiveLaw (SC) 558