[Gujarat Riots] 'Not Interested In Targeting Anybody', Says Kapil Sibal; Supreme Court Reserves Judgment On Zakia Jafri's Plea

Over a course of fourteen days, a Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar heard the submissions of Senior Advocate Kapil Sibal appearing on behalf of the Petitioner and Senior Advocate Mr. Mukul Rohatgi appearing on behalf of SIT, at great length.

The crux of Mr. Sibal's argument was that the SIT did not conduct investigation on the crucial aspects of the matter, which was essential to establish a larger conspiracy. He questioned the inadequacy in the investigation, inter alia, with respect to police inaction and complicity, presence of two Ministers, namely, Ashok Bhatt and Zadafia in the Ahmedabad city police control room, mobile phone data of police officials, VHP affiliated persons appointed as Public Prosecutors etc. Displeased, that the evidence collected and presented by the Petitioner from the official records have been left unconsidered by SIT in toto, Mr. Sibal submitted that 'no Investigator with a sense of Justice will discard these evidence'. It was especially pointed out by him that the Tehelka tapes that had succeeded in securing conviction in the Naroda Pateya trial, were strategically overlooked by the Investigating Agency. Mr. Sibal went a step ahead to argue that the manner in which the investigation was conducted by SIT, it appeared that they were trying to hide something. In conclusion, he had reckoned that "This is a case where the Majesty of Law has been deeply injured.'

Per contra, Mr. Rohatgi had argued that the SIT did its job, often exceeding the remit set out by the Supreme Court, in their pursuit of justice. He emphasised that Zakia's allegations largely pointed towards dereliction of duty and did not disclose any criminality. Moreover, he expressed his suspicion that at present the Petition is being driven not by Zakia, who is the aggrieved one, but by Petitioner No. 2 i.e. Teesta Setalvad who has ulterior motives in pursuing the same. On the plea of the Petitioner to direct further investigation, Mr. Rohatgi submitted that if it is allowed by the Supreme Court it would be in the teeth of the constitutional rights of the accused, who have already undergone trial and have been acquitted.

Solicitor General of India Tushar Mehta appearing for the State of Gujarat also made brief submissions on the alacrity of the State in handling the riots. He relied on an order of Gujarat High Court to dispute the bonafides of the Petitioner No. 2 in pursuing the present petition.

In his rejoinder argument apart from pointing out the inadequacies in the investigation, Mr. Sibal retorted to the diatribe against Teesta Setalvad - "If you stoke the fire, the pot will boil"

It was also pointed out by him that Mr. Rohatgi had extensively dealt with the allegations against the then Chief Minister, which he had not read while making his submissions. Emphasising on the dereliction on the part of SIT to consider the undisputed evidence in the form of Tehelka tapes, Mr. Sibal submitted -"In fact, the prosecution and SIT want this material to be effaced from the memory of this nation."

Rejoinder Arguments by Mr. Sibal

Continuing with his rejoinder argument, on Thursday, Mr. Sibal submitted -

"In Vol IX, your lordships will see that I had indicated yesterday that several matters cited by my Ld. Friend, Solicitor is sub-judice."

Bonafide of Petitioner No. 2

Countering the Respondents' claims of ulterior motive of Teesta Setalvad, Mr. Sibal made submissions to depict the nature of work undertaken by her organization to establish her bonafide-

"Kindly come to Pg 95. The organisation of Teesta Setalvad does not deal with these issues. To show what they do - was involved with legal aid, citizenship, helping people in Assam, forest rights, grassroots fellowship, food relief…When floods took place in Mumbai we did relief work, compensation to victims of terror attacks,...relief work during COVID. Painting us as someone who is anti-Gujarat is not right."

He further relied upon a judgment of the Supreme Court which had expunged caustic remarks made by High Court against Teesta -

"At one stage the HC made very caustic remarks about her. It is not a reported judgment. We will hand it over to your lordship. Then this court expunged those remarks.

.…

The expunged remarks about Teesta Setalvad is in (2004) 10 SCC 88."

Role of Magistrate in context of final report

Mr. Sibal argued that the role of Magistrate while considering the closure report is to see whether he suspects that the material discloses any offence; they are not to go into the correctness of the material at that stage.

In this context, he referred to Abhinandan Jha And Ors. v. Dinesh Mishra (1967) 3 SCR 668.

Humbly setting out the test to be applied by the Supreme Court, Mr Sibal stated -

"What your lordship has to see is, does this material before Mag; on this material can he come to the conclusion that he suspects that an offence has been committed."

He added -

"If your lordships come to the conclusion that you suspect that no offence has been committed, there is nothing further that we can say."

Decision to call the army was taken at 1 P.M.

With the intention to counter the content of the note submitted by SIT to the Supreme Court, Mr. Sibal submitted -

"One or two more things from the note. Final note part 1. List of dates by SIT. A letter was written by Mamlatdar, that one. Over the page, at 1pm CM took the decision to call the army. So, the decision to call the army was taken at 1pm. These are their notes."

The Bench asked Mr. Sibal to show the acknowledgement given by the authority to Jaydeep Patel to take the dead bodies.

'In that Mamtaldar thing, is there acknowledgement of anyone taking the body?", the bench asked.

Upon perusal of the concerned letter, the Bench found that there was no such acknowledgment.

"Let us see that once...There is no acknowledgement. What does this letter say?"

"We do not have the translation. We will give the translation.", responded Mr. Sibal.

No allegation about parading of dead bodies from Godhra to Ahmedabad

Mr. Sibal contended that though SIT had elaborately discussed about parading of dead bodies from Godhra to Ahmedabad, the allegation regarding the same was never raised by the Petitioner. The allegation was only with respect to parading of bodies at the procession to the funeral.

"In the second note, now. Para 10, Milords. No parading of dead bodies. Neither Magistrate's judgment, nor HC judgment show any allegation that I have raised about the parading of bodies from Godhra to Ahmedabad. Parading was in the procession to the funeral."

SIT questions the veracity of Tehelka tapes based on statement of Babu Bajrangi

Mr. Sibal argued that SIT had found falsity in the Tehelka tapes based on the statement of Babu Bajrangi, who was later convicted in Naroda Pateya trial, based on those tapes. He further added that the argument with respect to veracity of the tapes was not taken before the Trial Court or High Court.

"Kindly see para 26. It is said that sting is not part of the complaint. Then Milords, para 31. (SIT) Says that ex facie false claims made in tapes make them unreliable…He(SIT) tries to prove falsity by referring to Babu Bajrangi. Babu Bajrangi on the basis of this very tape has been convicted. He(SIT) cannot now say that it is false. This has been said for the first time before SC, never before Mag, never before HC."

Mr. Sibal submitted that the sting of Haresh Bhatt was not considered in its entirety by SIT and was tagged as unreliable.

"The other person they deal with is Haresh Bhatt. His testimony does not only relate to his presence in Ahmedabad. This is again revealed for the first time before this Court."

With respect to prosecutor Arvind Pandeya, the argument was that the tape disclosed he had collaborated with the defense. But the same was simply brushed aside by the SIT stating that he was merely the PP before the Nanavati Commission and had nor role in prosecution of the accused.

"Para 33. Sting of Arvind Pandeya. He(SIT) says he was only PP before the Nanavati Commission. He (Arvind) said he was collaborating with defence. Now, Para 38."

In Closure Report Rahul Sharma was commended

It was pointed out by Mr. Sibal that, in the closure report Rahul Sharma was commended for doing his job well.

"In closure they(SIT) said Rahul Sharma did his job, now they are criticising him."

He added -

"Then they(SIT) talk about Nambi Narayan, which is extraneous to these proceedings. Then they(SIT) rely on the Nanavati Commission, on which I have already submitted."

Treating protest as complaint - not argued by Petitioner

Clarifying it once and for all that he had not made the argument of treating the protest as a complaint before the Supreme Court, Mr. Sibal averred -

'Then he talks about treating protest as a complaint. Para 78. This was argued before the Mag. But I have never argued this point. So, that deals with my Ld. Friend's compilation."

Concluding Statement

Elucidating on the magnitude of the present case, Mr. Sibal concluded -

"Ultimately your lordships have to decide if all this material when your lordships apply your mind, your lordship can come to the conclusion that this material does not raise any suspicion that any offence has been committed. If your lordships come to that conclusion, then please Milords, accept the closure report, if not then your lordships' jurisdiction is wide enough to take it forward. Very few times in the history of the court, Milords, matters of this moment are before you. It happened earlier on a few occasions, this is yet another occasion when the majesty of law is being tested. And here I am not interested in targeting anybody, under criminal law you take cognisance of offences, you do not take cognisance of offenders…Deeply grateful to your lordships."

Sur-rejoinder arguments by Mr. Rohatgi

Babu Bajrangi not convicted on the basis of Tehelka Tapes

Mr. Rohatgi proceeded with his sur-rejoinder arguments. At the outset he clarified that Babu Bajrangi was not convicted on the basis of the Tehelka tapes, which were merely extra-judicial material.

"They say Babu Bajrangi was convicted on the basis of tapes. They were at best extrajudicial. He was convicted on the basis of other evidence."

Petitioner mixed by three Anil Patels

Apprising the Court that reliance on the statement of Anil Patel by the Petitioner was misguided as there were three Anil Patels and it appeared that the Petitioner had mixed them up.

"There are three Anil Patels, Anil Patel - Doctor, Anil Patel - Minister, Anil Shankarbhai Patel - VHP, stung by Tehelka…In Mr. Sibal's note your lordship might correct that, this is Anil Shankarbhai Patel. It (Petitioner) says no statement recorded. We recorded statements of all three. 18 persons were stung by operation, out of that 13 persons' testimony are in para 30."

Petitioner raised allegation on parading of dead bodies from Godhra to Solah

Refuting the submission made by the Petitioner that the allegation of parading of dead bodies from Godhra to Solah were not made by them, Mr. Rohatgi argued -

"My Ld. Friend also said he did not argue on parading between Godhra to Solah and he now claims that parading means after the bodies were given to the kins. He is now twisting the argument. While his case is that the bodies were paraded from Godhra."

Petitioner insisted on considering the protest petition as compliant

On the submission of Mr. Sibal that he had not argued about the protest petition being considered as a complaint in the present proceedings, Mr. Rohatgi controverted -

"They(Petitioner) said we never argued that protest be treated as part of complaint. It was repeatedly argued that you forget about my complaint, when the protest was before the Mag, why did he (Mag) not look at it."

No response by Petitioner on doctoring of complaint

It was pointed out by him that the Petitioner had not provided any satisfying response to the allegation of doctoring the copy of the complaint attached to the SLP, as made by Mr. Rohatgi on an earlier occasion. He emphasised that on the account of the same, the Petition should not be encouraged by the Court.

"There is no answer to the doctoring of the complaint. He said that we had told SIT that he will be a witness vis-a-vis an accused. The question is different, it is, why have they(Petitioner) deliberately filed a wrong copy of the complaint in the SC. The reason was that originally they wanted to treat him as an accused but now they want to treat him as a witness. SIT found all the three- Shreekumar, Sharma and Sanjeev Bhatt were unreliable."

He added -

"My submission in this regard was that if the complaint was like this then the petitioner cannot get a hearing under 136 of the Constitution."

Petitioner's complaint replete with contents of affidavits filed before Nanavati Commission

Responding to the submission of the Petitioner that the report of Commission of Inquiry would have no value in a Court as it is not admissible, Mr. Rohatgi argued that the Petitioner whose complaint was replete with content from the affidavit filed before the Nanavati Commission ought not to take such a high ground.

"They(Petitioner) said the Commission of Inquiry Report cannot be taken into consideration in any proceeding. My response is that the complaint is substantially from affidavits filed before a Commission."

Supreme Court directed SIT to merely 'look into' the complaint

Recapitulating his submission with respect to the directions of the Supreme Court to 'look into' the complaint and nothing further, Mr. Rohatgi submitted -

"The guiding star is the order of September 2011. Look into her(Petitioner) material to be filed in Godhra.It is important because the court was aware that the trials were ongoing. It was not a virgin field that nobody took note of any offence. Today the importance of those words (SC order) dawn upon me."

Chargesheet cannot be filed on suspicion; has to make a crystallised case against a party

Stating that chargesheets are not filed on suspicion but certainty; chargesheet has to make a crystallised case against a party, Mr. Rohagi argued -

"No chargesheet cannot be filed on suspicion. The chargesheet had to say that we find him guilty of murder. It is not only prosecutable material. They have to give material that they are guilty of some offences…That is the difference between the role of the investigating agency and the court. As far as IO is concerned a chargesheet has to make a crystallised case against a party. The court will look at it (chargesheet), it can either accept the chargesheet, direct further investigation or reject."

SIT did not protect anyone

On the allegation of the Petitioner that the SIT was indeed protecting the accused, Mr. Rohatgi submitted that the same was not true considering that though the agency did not find the Tehelka tapes to be reliable, they had placed it before the Court to make their own judgment on its content.

"I have read somewhere they (Petitioner) said that SIT had supported. That this material of sting, we found unreliable, but this was given in 3 cases - Gulberg, Naroda Patya, Naroda Gaam. At least in Gulberg, the material was rejected. Your lordship remembers I said that there is no doctoring in the sting, but what is the probative value of sting is another thing. In law it is in the nature of extra-judicial confession."

In this context Mr. Rohatgi briefly referred to the Jain Hawala Diary case.

He added -

"Therefore, Milord, to say that I should have arrested everybody in the sting on the basis of the sting is an unfounded submission."

SIT's conduct not questioned when closure reports were submitted before Supreme Court

Apprising the Court that when the reports were presented, the Petitioner was present at the proceedings, but no averment was raised about SIT's slipshod investigation.

"In May 2010, Mr. Malhotra concluded and said there was no other cognisable material in the complaint. The amicus was there, Petitioner was there. Amicus said do some more investigation. Mr. Shukla did and gave 2 more reports. The point that I am making is that the nature of investigation and report done between 2009-2011 qua this complaint, not a single averment made in the hearing before SC that SIT had done a slipshod, or siding with accused or done something wrong."

To substantiate his argument on Tehelka tapes, he added -

"Amicus has also not mentioned anything about the sting in his report."

Haresh Bhatt not named accused in complaint or Protest Petition

Mr. Rohatgi submitted that Haresh Bhatt was never named as accused in either the complaint or the Protest Petitioner.

"Now, Haresh Bhatt. He was then an MLA. He was not added as accused either in complaint or in protest. But a grievance is made about him. Even in protest they have not named most of the people stung in operation."

Concluding Statement

Concluding his sur-rejoinder arguments, Mr. Rohatgi submitted -

"This is all that I wanted to say. I am handing over a note, in it I have given a crisp chart of how arguments kept on expanding in protest, HC…So at the end of the day where do we stand? The SC stayed trial, vacated in 2009. Told SIT to take up the 9 cases for further investigation in 2008. We did our job. We were commended by SC. Nobody has raised a finger against us. It is Petitioner 2 who is driving this petition now. Ample opportunity was with you (Petitioner) to say something. To now start a fresh investigation. No material available on ground, convictions have taken place. If everything starts again what will happen to the trials that have been concluded. The procedure adopted by SC was 142 procedure so that nobody can say that the SC did not listen to the voice of an aggrieved widow. Now, the idea is to keep the pot boiling for ulterior purposes of Petitioner no. 2."

Assuring to provide the relevant documents, Mr. Rohatgi stated -

"Your lordship wanted the translated version of the relevant portion of the Trial Court Your lordship has been kind and patient in hearing this case at such length. What the Trial Court and High Court has done, your lordship should endorse it."

After this, the bench passed an order to close the hearing - "Both sides concluded their arguments. Judgement reserved".