On Thursday, Senior Advocate, Mr. Mukul Rohatgi, appearing on behalf of the SIT in the petition filed by Zakia Jafri before the Supreme Court, continued with his arguments. Refuting the challenge of the Petitioner to the SIT Closure Report, which had absolved the highest State functionaries of the allegation of conspiracy in the Gujarat riots of 2002, Mr. Rohatgi argued that the SIT had shown utmost commitment to the process of investigation.
A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar took up the part-heard matter for further hearing. Mr. Rohatgi vehemently controverted the submissions of the Petitioner that the SIT was trying to shield someone or something. He argued that on the contrary, the details in the Closure Report demonstrate the extent to which the SIT went to in order to conduct investigation in the matter, keeping in view and often exceeding the mandate of the Supreme Court.
The Special Investigation Team (SIT), which was appointed by the Supreme Court in 2008 to investigate the nine major cases of riots in Gujarat, was later bestowed with the responsibility to look into the complaint filed by Zakia Jafri against the state functionaries alleging conspiracy in the Gujarat riots. Subsequently, the closure report filed by SIT was challenged citing the lack of investigation in the matter. The Magistrate accepted the contents of the closure report and refused to pass orders of further investigation. The High Court also did not think it fit to interfere, but made an observation that the Trial Court had the power by virtue of the order of the Supreme Court to direct for further investigation in the matter. In quest of further probe into the riots of 2002, Zakia has now approached the Supreme Court.
Recalling that the Court on the last date of hearing had asked Mr. Rohatgi the date of the judgment of the trial court in the Gulberg matter, he informed -
"Before I commence I wanted to indicate 2-3 things. Your lordships wanted to know that date of trial court judgement in Gulberg...17.06.2016. Matter pending in appeal in HC."
The Bench confirmed, "24 convicted, 39 acquitted."
Referring to the Gulberg trial, Mr. Rohatgi revealed that though the trial was over and the appeal was pending before the Gujarat High Court, a chargsheet has been filed in the matter pertaining to a juvenile and an absconder.
"There is a chargesheet pertaining to a juvenile and an absconder pending. That might be a smaller splinter."
Moving on to his second point, Mr. Rohatgi submitted that Zakia Jafri, widow of Ehsan Jafri, lodged the complaint in 2006. But, later when she went to the Gujarat High Court seeking her complaint to be registered as an FIR, she was joined by Teesta Setalvad. It was specifically pointed out by Mr. Rohatgi, that the High Court had elaborately discussed that Ms. Setalvad did not have locus standi in the matter.
"The second point - The complainant is a lady called Zakia Jafri, wife of former MP Ehsan Jafri. So, Zakia Jafri, the widow, had made a complaint in 2006….When she went to HC seeking direction to register her complaint as FIR, Petition 2 had joined, who is, Ms. Setalvad, head of the NGO. The HC in the order devoted several pages to say she had no locus."
The Bench reminded Mr. Rohatgi, "That is side issue now."
Informing he was aware of the same, he insisted the court to note it for the time being -
"I would request your lordship to just note that."
Mr. Rohatgi beseeched the Court to consider his argument that the approach taken by the Petitioner with respect to the complaint suggests that a parallel proceeding is going on. Clarifying that while the trial in Gulberg was ongoing, the Supreme Court had sympathized with the complainant's circumstances and asked the SIT to 'look into' the complaint in the nature of further material. The Petitioner had later filed a protest petition, wherein they have moved further beyond the allegations made in the original complaint. Arguing that the mandate of the SIT was limited to 'looking at' the complaint, he submitted -
"Chargesheet filed till 2009 in Gulberg, stay lifted in 2009, trial commenced in 2009. I want to urge that a parallel system is going on...Trial is proceeding in Gulberg at the same time taking sympathy this Court told SIT to look into the complaint. Protest in 2013, 1200 pages, it is far far beyond the complaint...The main case is proceeding, this is just further material. It is in this conspectus your lordship will view this proceeding. The order of this court is the guiding light. Today it is as if this is a standalone case, the other side said take the protest as a complaint."
At this juncture the Bench inquired, "Did the Petitioner participate in the trial in Gulberg? In the closure report you have examined how many additional persons?"
In response Mr. Rohatgi informed the Bench,"Complaint was examined as Prosecution witness in trial. She was PW 337."
In a follow up question the Bench asked, "Date of examination?"
As Mr. Rohatgi did not have the requisite information he sought time till after lunch to get back with his response.
Mr. Rohatgi urged that the complaint was not a standalone case and was to be considered as further information in the Gulberg matter. He argued -
"It is now being blown out of proportion saying that everybody in the State Gov, police, administration is complacent...the complaint was some 30-40 pages, the protest is 1200 pages."
The Bench enquired if the Petitioner was examined after the stay on the 9 trials were lifted by the Supreme Court and if so then she might have had an opportunity to seek indulgence from the trial court to initiate action -
"In all probability if she was examined only after the stay was lifted by this court, then it was certainly after the complaint, after protest. Whether there was an opportunity to say that The Trial Court itself could have initiated action."
Concurring with the approach of the Court, Mr. Rohatgi stated that the Petitioner could have asked the Trial Court to look at all her concerns. He further submitted -
"The protest petition is now being driven by an NGO."
Mr. Rohatgi emphasised that the issues raised in the complaint at best related to dereliction of service, but not to actual criminality. According to him, the SIT still examined the issues at times going beyond the scope of the Supreme Court's remit. He submitted -
"But, my job was to investigate. I have shown you some part of the report, I will show some more. Your Lordship, most of the issues do not relate to actual criminality, some can relate at best to some dereliction of duty. Somebody was slow, somebody was lethargic...Why did the government not do this, why did the government transfer this , these are not meant to be criminality or conspiracies. Yet, this SIT devoted, Milord, a huge amount of time to all these issues. They did not leave a single issue by saying that it is beyond our remit. Most of them are beyond their remit."
He reiterated that from the whole complaint the SIT had culled out 30-40 allegations and the same were dealt with.
"Some 30-35 allegations were culled out in short paragraphs by SIT from the complaint."
Indicating the frivolity of the accusations with respect to the SIT investigation, Mr. Rohatgi read out certain allegations including the one against the ministers' interference in the city control room and the other about the transfers. He argued that the SIT had dealt with the same, but considering these are matters of protocol and government policy, the SIT could not have gone into the correctness of the decision.
Referring to the nature of allegations Mr. Rohatgi submitted -
"In every allegation the word Chief Minister is written."
Allegation regarding transfer of dutiful officers
Addressing the issue of transfer of officials, Mr. Rohatgi candidly remarked that it was not the job of the SIT to look at issues like these, but still they examined the issue -
"This is not the job of SIT to see who was transferred, why they were transferred. Still they examined. Those who transferred were all examined, but they did not want to make any comments on the transfer."
Conduct of Shreekumar
From the last day's submission, he read out the conclusion of SIT with respect to the statement of Shreekumar. Thereafter, he drew the attention of the Court to the three 'star' witnesses of the Petitioner, namely, RB Shreekumar, Rahul Sharma and Sanjeev Bhat. He also referred to their individual conduct. Calling Shreekumar's statement to be motivated, Mr. Rohatgi went on to point out that Rahul Sharma was initially an accused and later became a witness. Refusing to deal with Sanjeev Bhat, since the Petitioner had not gone into his statement in the present proceedings, Mr. Rohtagi provided some information about his conviction in certain cases. He submitted -
"RB Shreekumar, Rahul Sharma and Sanjeev - His entire case revolves around these three people. These three people's testimony and 9 affidavits filed by Shreekumar before Nanavati Commission - They are the star witnesses of this complaint and protest petition...Then this Rahul Sharma, who is first shown as an accused and later as a star witness...The conduct of Sanjeev Bhat is volumes and volumes. My friend did not speak about it, so I'll not speak about it. Today Sanjeev Bhat is convicted for murder, his appeal is pending. Rohatgi: He is convicted for planting narcotics in the room of a lawyer in Gujarat. I am personally aware because I have appeared in these cases."
Rewarding erring officers
The next allegation that he dealt with was rewarding senior officers who were under scrutiny before the Nanavati Commission. The point that he highlighted in this regard was the dedication of the SIT, which had extensively dealt with the issue even when it was beyond the mandate. He averred -
"Milord, kindly see pg. 271, allegation no. 7 - senior officials rewarded, while their conduct under the scrutiny of Nanavati Commission. Pages after pages are devoted to this SIT...See Subbarao.Complete investigation is done on something like transfer of chairman of energy commission."
Remarking that the transfers had no bearing on the main allegation of conspiracy, he further added -
"What is this to do with conspiracy?A conspiracy has to start from someone at the top. Now he(Sibal) says disparate incidents of conspiracy. Where is the meeting of minds?"
Conduct of M.K. Tandon
Dealing with the observation of SIT with respect to M.K. Tandon, Former Joint CP Ahmedabad, Mr. Rohatgi drew the attention of the Court to the impeccable standard of the investigation conducted by SIT. He asserted -
"I am reading this to show the meticulousness of the investigation, not who is right, who is wrong...Minute by minute is the examination of this SIT...Wherever it was possible these phones are examined."
Demonstrating the non-partisan nature of the investigation, he submitted -
"SIT is critical about the role of Tandon. Not that it is shielding anybody...I wanted to say that SIT was critical of the fellow. But, sufficient evidence not to show that Tandon was a part of a criminal conspiracy...but warrant a severe departmental action against him...The purpose of reading this was to show, Milord the meticulousness, I am not on correctness, I am on the meticulousness of the investigation by the SIT."
Suggesting that the scope of examination of the allegations in the complaint by multiple organizations went far beyond the intention of order of the Supreme Court, directing the SIT to 'look into' the complaint, Mr. Rohatgi argued -
"How many things will go no parallely? A criminal case is going on in Gulberg, Nanavati Commission is also examining, SIT is also examining. What the court had in mind when it said 'look into' it was not this. They (SIT) have taken their job, Milord, more seriously than they should have, if you ask me."
Conduct of Shreekumar
Reading the portion from the SIT report which dealt with Shreekumar, Mr. Rohatgi commented that the same was irrelevant in the context of the Gulberg matter in the purview of which the complaint of the Petitioner is to be considered.
"This (reading the statement of Shreekumar and others) is not a case for examining a conspiracy or any criminality...The officer says that I informed the Govt, no action taken. What is this to do with examination of additional material with respect to Gulberg?"
Contextually Irrelevant Allegations
Mr. Rohatgi read out headings of the allegations in an attempt to show that they were contextually irrelevant He pointed out that allegations with respect to Best Bakery and Bilkis Bano, which were not under the scrutiny of the SIT were also raised in the complaint.
"See allegation no.9 - indictment of SC in respect to Best bakery and Bilkis Bano. This does not include in 9 cases. This was not given to SIT, still it goes into it to do its job."
The Bench remarked,"This is not an allegation, actually this is fact. Those cases were of which year?"
Mr. Rohatgi replied,"Same year. Nothing to do with any of the 9 cases. They were two independent cases, which were ghastly otherwise."
Highlighting the import of the allegation in the above-mentioned, two unrelated cases, Mr. Rohatgi argued -
"Kindly see the actual allegation w.r.t. Best Bakery and Bilkis. Some of the glaring examples of state sponsored events. See, the impact of this line. What do you mean by state sponsored?...It would mean the State turned against its people. Do they understand the import of this statement?...para 14, lackadaisical grant of bail...So, the allegation is that all these cases were State sponsored. These are irresponsible statements."
The Petitioner's complaint was marred with material from the Nanavati Commision and referring to them, the Petitioner has asked the SIT to examine the observations, he argued -
"Material of Nanavati is also brought here (allegations). They say, this was said by Nanavati, so SIT should also examine."
Surprised that the SIT examined an ex-Supreme Court Judge, the Bench posed a question whether Justice Nanavati was examined by SIT.
Apologising for referring to Nanavati Commission as Nanavati, Mr. Rohatgi clarified, "Nanavati Commission was examined. It examined all three star witnesses and commented adversely."
Allegations against then Chief Minister
With respect to the allegation levied on the then Chief Minister that he had not visited the riot affected areas, but had gone to Gondhra on the very day the carnage took place, Mr. Rohatgi submitted that the decision taken by the Chief Minister could not have been the subject matter of the SIT investigation. He assured the Court that all top officials and ministers, including the Chief Minister were examined by the SIT. He asserted -
"Then the allegation, the CM did not visit the riots affected areas though he visited Godhra on the date of the incident. I don't want to read this except to say, that your Lordship might note that, the SIT examined everybody from the Chief Minister downwards - major people in cabinet including the CM, top police officers, top civil administration officers, arresting Maya Kodnani, a Minister, recommending serious proceedings against Tandon all these were done. It is not that they did not examine the CM...CM visited there, did not visit there - How is it a part of what SIT has to do?"
Allegation regarding delay in deployment and requisition of army
On the allegation relating to the delay in deployment and requisition of army, Mr. Rohatgi read from the SIT report that the allegation did not hold water. He went a step ahead to argue that since the army was called within the first three hours of the riots, the whole allegation of conspiracy should fall flat on its face. He stated -
"Allegation of delay in deploying army. Army was airlifted, how do they say delay. Centre and neighbouring states were asked to provide force. There was no material to hold that there was any truth in the allegation...Then allegation is delay in requisition of army. No need to read, this has come again and again. The conclusion is that there is no delay. This by itself destroys all allegations of conspiracy by higher officials. If the idea was to conspire, the army would not have been called within 3 hours of the riots."
Allegation against PPs
Recalling the arguments of Mr. Sibal with respect to the collaboration of the public prosecutors and his emphasis on the conduct of one Arvind Pandeya, Mr. Rohatgi submitted -
"Then the allegation on PPs. Every gentleman who is a PP has been examined by SIT. In this one, your lordship will not find Arvind Pandeya. He was not mentioned in the complaint. As I had informed yesterday, he was only a PP of State Govt. before the Commission."
Allegations regarding non-transfer at grassroot level
Mr. Rohatgi informed the Court that the allegation of transferring or not transferring officers at grassroot level was largely based on the affidavits of Shreekumar and other officers, since the Petitioner did not have personal knowledge of the same. He argued -
"Allegation No. 16. It is about transfer of officers at grassroot level. Milord, kindly note, the major part of the complaint was taking from the affidavits of the officers (including Shreekumar). She did not have personal knowledge of this."
Allegation regarding preponement of election
Unable to comprehend how the preponement of election was related to the larger issue in Gulberg, Mr. Rohatgi averred -
"[addresses the allegation pertaining to elections] Preponing or postponing election, how was it related to further material in Gulberg. The guiding light is the order of SC which said, Mr. SIT please look into the complaint for further material relatable to Gulberg."
On the issue of election, the Bench enquired,"These elections were held in which month?"
"In Dec.", replied Mr. Rohatgi.
Scope of Investigation
Seeking clarification if the allegation was of a continuous conspiracy, the Bench asked, "Is the allegation that it was a continuous conspiracy? Is it mentioned in the complaint?
Mr. Rohatgi apprised the Court, "That phrase is not used."
To get clarity in this regard, the Bench again enquired,"SIT was to enquire into the continuing conspiracy?"
Explaining the limit of the Supreme Court's remit, Mr. Rohatgi submitted, "The SC said Mr. SIT please examine the complaint because she might have further material relatable to Gulberg. SC does not talk about conspiracy."
Portraying the manner in which officers were added in the protest petition as accused, Mr. Rohatgi stated -
"In the complaint there are 63 accused, apart from the doctoring business. In Protest many more are accused. They take officers of a particular rank and all successive officers appointed to that rank were made accused….Yet, the SIT took it more seriously than what the SC had said. Are saying that everyone was mixed up and only three officers were saying the truth."
It is the submission of Mr. Rohatgi, that the SIT went beyond the scope of investigation to assess the observations made by the Election Commission.
"[SIT Report] This is the assessment of the observation of the Election Commission. Was this what SIT was to do? They still did it."
Mr. Rohatgi referred to the SIT report to suggest that Arvind Pandeya was not PP in any of these concerned cases. He further noted that the SIT was critical of Shreekumar. He pointed out the three major ground that went against Shreekumar -
"Shreekumar was recording every meeting. He had given 9 affidavits, only in the 3rd affidavit when he was superseded he talked about being pressurised; he maintains a register. These three are major grounds for SIT to disbelieve him, for Petitioner to believe him and for the Commission (Nanavati) to disbelieve him."
It was emphasized upon that at the time of cross-examination of the Petitioner, Shreekumar was under the employment of Teesta Setalvad, "It is important to note that she mentions that Shreekumar is currently working with Teesta Setalvad. Her cross was on 22.10.10."
Reverting back to the question asked by the Bench about the date of examination of Zakia, Mr. Rohatgi informed -
"Her (Zakia) examination and cross are in Gujarati."
The Bench asked when her evidence commenced.
Mr. Rohatgi responded, "One day 22.10.10."
Responding to another question posed by the Bench, Mr. Rohatgi stated, "Your Lordship had asked - How many Prosecution witnesses amongst the witnesses examined by SIT? 19 out of 275 examined by SIT were prosecution witnesses. This itself shows the extended limits to which the SIT went."
The Bench asked, "Was there any allegation against the SIT in the complaint?"
The Bench was informed, "Nothing about SIT, nothing about larger conspiracy, qua Gulberg she says she was in the house and was not eye-witness to the whole incident."
Conduct of Rahul Sharma
Moving on to the statement of Rahul Sharma, Mr. Rohatgi argued that even though he had case property (CRDs) he had not provided it to the Investigating Officer or submitted at the Malkhana, which invites suspicion -
"See allegation no. 23. This is about CDs produced by Rahul Sharma many many years later. They were received from him, not from the Malkhana. According to Sharma, there was use of mobile phones, in a big way, in the riots. Sharma copied data on his computer and kept at his home, kindly note. [referring to burning of CD by Sharma]Burning of information in colloquial term is not setting fire, in computer language it means you load the information. He stated that his PA was on leave and therefore could not give the CD through a formal letter. Once he has case property he had to give it to IO or submit to Malkhana."
Allegation regarding rehabilitation of victims after riots
It was then argued that another allegation, which was about rehabilitation of the victims of the riots, was also not related to the inquiry of a larger conspiracy, yet examined thoroughly by the SIT -
"Now allegation about Rehabilitation of victims. This has nothing to do with riots, larger conspiracy. See the details to which the SIT went. See ex- gratia payments, assistance to widow, sanitation, medical etc."
Allegation of Police inaction
Skimming through the allegations related to police inaction facilitated riots is a part of conspiracy, Pandeya, Tandon, Gondia, Mr. Rohatgi pointed out -
"Allegation was that police officer's phone was switched off. The allegation was incorrect. SIT examined CDRs and call records. That is why Tandon is adversely commented on, that he was not active...Someone can say that they could have taken better action, that is different. But, saying they were all mixed up is not correct."
On the issue of non action against officers for submitting incomplete affidavits,he submitted -
"Allegation no. 27 - no action taken against officers ..who filed incomplete affidavits. What is to SIT do? Allegation No. 28 - Slack review of post riot cases. Then, court is to pull up, what can SIT do?"
Allegation against Anil Patel, the doctor
Dealing with the allegation against Anil Patel, the doctor, Mr. Rohatgi submitted -
"Item No. 31. This I would like to read. This is one of the Anil Patels, who was a doctor. So the allegation is that the meeting was actually for a revenge attack after the train burning incident….Kindly note, your lordship, that the train was to reach Godhra at 2AM in the morning. The train was delayed by 5 hours and then this incident happened. God knows if this train had reached at 2 and then to Ahmedabad, this would not have happened...Wherever mobiles available they (SIT) have been checked...The other side said, I have heard Mr. Sibal say - Why have you not ceased the mobile phones? An event of 2002, this is 2010. People don't keep phones for 8 years, the phones were very different back then and wherever there is govt. phone, it has been examined….So, Milord, it was a serious allegation that between doctors that secret meeting took place at Lonavada. Ashok Bhatt and Chauhan were also there and they conspired to avenge the train burning incident….Each of them examined in detail. None of them had unconvincing alibi. Their telephone calls are checked. Nothing found. The allegation was not correct."
Allegation against then Chief Minister
As Mr. Rohatgi referred to the allegation against the then Chief Minister in passing the Bench asked him, "They have not pressed item 1 (allegation against CM)?"
Mr. Rohatgi responded,"The other side has not pressed Item no. 1 of the complaint. I was otherwise willing to read it."
The Bench was of the opinion that maybe the Petitioner did not read the allegation, but would still press it upon further investigation on the other allegations.
However, Mr. Sibal clarified, "I have not read it so I am neither relying nor disputing any of it. I have given undisputed documents and matters which require further investigation...This does not require further investigation."
The Bench asked a straightforward question,"So you are not challenging that finding of SIT?"
To clarify further Mr. Sibal responded,"It is not pressed for further investigation. If tomorrow any other evidence comes up then, nothing is closed forever. I am not challenging the closure report on this finding. I am not seeking further investigation in this matter."
As the Bench expressed its desire to record a statement in this regard, Mr. Sibal assured it that he would provide a written statement, so that there is no ambiguity.
Hearing Mr. Rohatgi deal with it A1(the then CM) further, Mr. Sibal interjected, "I have not mentioned A1, if you continue reading about it then I'll have to deal with it.
Relevance of Tehelka tapes
Informing the court that the Tehelka tapes were discarded in the Gulberg trial Mr. Rohatgi submitted -
"Allegations regarding Tehelka. They recorded what happened. This evidence had been adduced in court and matter is sub juice, hence no comments."
Mr. Rohatgi further read out from the SIT report that Babu Bajrangi's statement in Tehelka w.r.t Zardari was merely an extrajudicial statement.
Allegations against Dinesh and Praveen Togadia
With respect to the allegations against Praveen Togadia and Dinesh Togadia, Mr. Rohatgi argued -
"Then, see, Praveen Togadia, Gen Sec VHP. His brother is Dinesh Togadia, who runs a hospital in Ahmedabad. Maya Kodnani was also a doctor. Why was Dinesh Togadia talking to Maya Kodnani is the allegation in protest petition. Now let's see Praveen Togadia. He was Gen Sec, so allegation had to be made. He said that he was in Ayodhya and came back in May. He was not present in Gujarat during the riots. So, allegations are wildly made."
Allegation against Jaydeep Patel
While dealing with Jaydeep Patel, he stated -
"Now, about Jaydeep Patel. He said he was in Godhra...He is chargesheeted in Naroda Pateya...He is facing trial."
Allegation against Jabalia
Referring to allegations against Jabalia, the then SP, Mr. Rohatgi informed the Court that he was posted in Ahmedabad much after the riots took place.
"Mr. Malhotra asks me, show Jabalia, he was the SP - allegations are against him. He said that he was posted there from 2004-2006. He was not there in Feb, 2002."
Amicus ordered further investigation
It was highlighted by him, that when the amicus asked for further enquiry it was diligently followed up by the SIT -
"The Amicus asked to do further investigation, that was also done."
The Bench enquired, "Further investigation from where?"
Mr. Rohatgi responded,"One further investigation was directed by Mr. Malhotra, which Himangshu Shukla did. The amicus had also said further investigation, that was also done by Himangshu Shukla. He did two further investigations...Kindly come to the end of the report at 466. If your lordships recall, Malhotra gave a report in 2010, the further investigation was done by Shukla and everything earlier till 466 is what amicus said, interaction with amicus...Kindly come back to 451 top. There is a chart in which SIT and amicus are mentioned. Transporting of dead bodies, amicus says SIT justified, accepts finding of Shreekumar but says don't call it motivated.
Mr. Rohatgi read out from his note as provided to the Court, that the amicus agreed to all findings of the SIT except one with respect to A1 (then CM), wherein amicus opined that the speech of A1 had the potential to invite Section 153A IPC, but added that the same is for the court to look into.
Court order against Sanjeev Bhat
A court order that had made serious observations on Sanjeev Bhat was relied upon -
"Then, order in two petitions filed by Sanjeev Bhat w.r.t. criminal cases filed against him for transfer to CBI. This was dismissed by making serious observations against this officer. This judgement talks about SIT and the Commission. He is one of the star witnesses."
Referring to the order of the Supreme Court where it had lifted the stay on the 9 trials, Mr Rohatgi pointed out that the court had in fact appreciated the SIT.
"See pg 3. The order lifting stay is not on record, I have provided it. The efforts of SIT were appreciated by SC."
Relevance of Tehelka tapes
Reading about the Tehelka tapes, Mr. Rohatgi submitted -
"I would like to read Tehelka here. It was not a part of the complaint, it surfaced during investigation. SIT looked at it, examined 13 ppl affected by the sting, including Bajrangi, Anil Shankar bhai, Haresh Bhat etc."
Considering that it might not be possible to look at the findings regarding the tapes on merit the Bench enquired -
"Should we look at the finding (w.r.t Tehelka). Once we are looking, we are looking on merit."
Requesting the Court not to go on the merits, Mr. Rohatgi submitted -
"A word from your lordship would have bearing on the appeal, the trial is already complete."
Thereafter the Bench instructed Mr. Rohatgi to provide it the evidence of Zakia and Ashish Khetan and that of Rahul Sharma. It noted -
"We may not deal with that evidence in this proceeding, but we will look at it. (In lighter vein) We are saying 'look into' in the same way you (SIT) were said to 'look into'."
Conduct of Rahul Sharma
Mr. Rohatgi again referred to the conduct of Rahul Sharma -
"Now, Rahul Sharma. This person was collecting CDRs on his own from 2 service providers for Ahmedabad and Godhra...This should have gone to the Malkhana. He was in possession of case property. The original CDs were not there, Sharma made copies. Last comment (by SIT) is that why did he not take CDRs for Gandhinagar, which was capital."
Allegations regarding hate speech
With respect to hate speech, it was pointed out that most of the allegation pertaining to the same are brought in at the stage of protest -
"Now about hate speeches. Kindly turn to para 45. The complaint of Zakia is limited to the extent - No action against press publishing communal material inciting violence...Most of the allegations are brought on record when the protest was filed. The scope of allegation was expanded subsequent to the complaint. Allegation of hate speech of Togadia, it is not there in the complaint. Zadafia is one of 63 accused, but this is not the allegation in the complaint."
Allegation regarding buildup of communal mobilisation before the Godhra incident
Baffled by the import of allegation regarding build up of communal mobilisation before the Godhra incident, Mr. Rohatgi submitted -
"Allegation is Buildup of arms and communal mobilisation before the Godhra incident. This is something very curious...The allegation is that even before the incident of 27.02.2002 there was a buildup of arms by the radical hindu organisations. Kindly See the enormity in this suggestion, the enormity of the suggestion that even before the incident of 27.02.2002, which means that - suppose I am a radical Hindu member of VHP, I will keep arms on 25.02.2002 if I have to attack the other community the next day or day thereafter, but if you allege that as a radical hindu I am collecting arms without knowing that there would be a train burning incident on 27.02.2002. That doesn't make sense because there was no other attack. Therefore the enormity of the statement is that these fellows had kept material 2 days before because did they know that some elements will come and burn the train or it is to say that theis fellows collected on 25.02.2002 and the train burning was orchestrated by the same hindu community… this is absurdity...Therefore, the allegation is this, that the train burning was also sponsored...This is the only meaning I get."
The Bench to continue hearing the matter on 1st Dec, 2021.