August 5, 2015
Replying Extensively on the Questions of Law as Requested by the court of Justice Gokani hearing the Zakia Jafri Criminal Revision Application (CRA) 205/2014 clearly outlined the two legs of the arguments being relied upon by the Applicant, Desai clearly outlined that he would be arguing that the Investigation ordered/directed by the Supreme Court of India into Zakia Jafri’s Complaint dated 8.6.2006 was a fresh investigation under the Code of Criminal Procedure. Desai was assisted by advocate Suhel Tirmizi and Teesta Setalvad of Citizens for Justice and Peace (CJP).
Second, even if it was seen (technically) within the scope of the already on-going Gulberg Sessions Trial, under the CRPC, the Magistrate could have directed further investigation under Section 173(8) by either himself undertaking such an investigation under Section 190 of the Code or directing it. In either instance, the fact that the Supreme Court has been monitoring/overseeing the initial stages of the investigation in no way curtails this legal remedy. The Scope of an Investigation cannot be curtailed by the kind of argument that the SIT is making. Whether the Court eventually views it as a fresh investigation or not, the implications of that will not change at all as the powers of the Magistrate’s Court to direct further investigation do not get curtailed.
Over 160 witnesses were examined by AK Malhotra of the SIT pursuant to the initial Orders of the Supreme Court of India dated 3.3.2008 and 27.4.2009 explained Desai and it was after the interim report of amicus curiae Raju Ramachandran(20.1.2011) that, on 15.3.2011, the Supreme Court of India had finally directed further investigation.
Finally (when the SIT for over a year after filing the Protest petition refused the Investigation papers to the Complainant Zakia Jafri), Zakia Jafri had filed a second SLP 8989/2012 before the Supreme Court of India. This was necessitated because the Magistrate not only turned down her request for all the Investigation papers but also closed her right to file a protest petition. The SIT had displayed untold hostility complainant Zakia Jafri during these proceedings.
In its Order dated 7.2.2013, that restored Zakia Jafri’s right to file a protest petition, the SC had also clearly stated that the “signed statements (over 160) collected by AK Malhotra during investigation should be treated as 161 statements.” This itself clearly stated that the entire investigation was treated as an investigation into a fresh complaint by the Court.
Moreover, Desai succinctly pointed out that the repeated efforts by the SIT to constrict the Zakia Jafri Complaint to the Gulberg Society case was faulty on several other counts: in the Gulberg Massacre, it was KG Erda who was the informant in the FIR (he has been subsequently arraigned as an accused after the SIT’s further Investigation); both FIRs were different in scope and extent; the Gulberg Society case was one of 500 other incidents all over Gujarat with the accused being powerful administrators and policemen. Pegging the matter on the ongoing Sessions trial in the Meghaninagar Case was simply a technical issue and could not be used to curtail the investigation.
Reading at length from the Final Order of the Supreme Court of India dated 12.9.2011 (Paras 4, 5, 6, 8, 9) Desai emphasized that it was Zakia Jafri who was given the right, bestowed on the Complainant under the CRPC, to file the protest petition and this gives further indication that the Supreme Court had treated the Complaint of 8.6.2006 as a fresh complaint. Desai cited many judgements (2004 7 SCC) Gangadhar Mhatre v/s state of Maharashtra and others. Emphasising the three major grounds again, Desai said that the very fact the Supreme Court of India had directed that the signed statements of the Malhotra Investigation be treated as 161 statements, the fact that Zakia Jafri was given the right of the Original Complainant (as per law laid down in the Code) to file the Complaint and the fact that the SIT filed its Final Report not in the Sessions Court where the Gulberg trial is ongoing but in the Magistrate’s Court. Itself strengthens this argument.
Making the alternate argument as well, Desai pointed out how even if this complaint were to be treated as further investigation into the Gulberg Complaint, the Magistrate does not have the authority under law to foreclose his legal authority to direct a further investigation. This is what he has done in his Order of 26.12.2013. Reading out from a string of judgements related to the issue of Scope of Investigation and Cognisance by a Magistrate (Abhinandan Jha v/s Dinesh Mishra, AIR 1968 SC 685), Desai cogently outlined how the powers to ensure a full, fair and complete investigation can never be curtailed. A bunch of judgements prepared by the CJP team on this question were handed over to the Court (India Carat P Ltd vs State of Karnataka, 1989(2) SCC, 132). The last word on the subject has been outlined in Vinay Tyagi v/s Irshad Ali alias Deepak and Others (2013 5 SCC, 762) and the scope of investigation has been outlined and further emphasized, be it re-investigation, further investigation or de novo investigation.
Therefore, said Desai, the Malhotra Investigation into the Zakia Jafri Complaint dated 8.6.2006 in SLP 1088/2008 (wherein Zakia Jafri and Citizens for Justice & Peace were co-petitioners) was an Initial Investigation into that Complaint, after which to became a further investigation into the same complaint. The Scope and Powers of the Magistrate under Section 173(8) of the Code can never be curtailed. And ordinarily, even the Protest Petition can be treated as a fresh Complaint under law. In any case, the Powers of the Magistrate can at no stage be curtailed and this has been made amply clear by the Supreme Court in its Final Order dated 12.9.2011, where it states that the future course of action would be “in accordance with the law.” Reading from Paragraphs 33, 37, 45 and 48 and 51 of the Vineet Tyagi Judgement, Desai says the SC has made the approach to further investigation perfectly clear. “All doubts have been put to rest,” remarked Justice Gokani.
SIT, through senior counsel Vaidyanathan made a brief response before the matter was adjourned to August 13, 2015. He stated that it was the SIT’s case that, under no circumstances could the Magistrate in this case orders further investigation; it makes no difference whether the Malhotra investigation was a fresh or further investigation. This is not a fresh case, it is a case where the Supreme Court of India directed an Independent Investigation and also monitored it. When the Amicus Curaie made recommendations for a further investigation, even these were carried out and the matter ended there. The matter has been foreclosed by the Supreme Court, he said. It was because the Supreme Court had close the issue of a wider Conspiracy that the Final Report had been filed there because the offences (sections 153a, 153b etc) were triable there.
Needless to say, this argument of the SIT makes a complete mockery of the Order of the Supreme Court of India dated 12.9.2011 that preserved the rights of the Complainant Zakia Jafri, under law to file a Protest petition and agitate it with the enabling sections of 173(2) and section 173(8) of the Code of Criminal procedure. Under the first section, the Investigating Agency is required to call/give notice to the Complainant before filing it’s final report. However despite two joint letters written by Zakia Jafri and Teesta Setalvad of the CJP to the SIT, first in September 2011 and again in November 2011, the SIT had treated the Victim Complainant with hostility and contempt.
Update on the Hearing of the Zakia Jafri Criminal Revision Application 205/2014
Gujarat High Court
August 4, 2015
The hearing of Smt Zakia Ahsan Jafri’s Criminal Revision Application (Nos 205/2014) began amidst a packed courtroom at the Gujarat High Court today. Present were her legal team, advocates Mihir Desai and MM Tirmizi as also Teesta Setalvad of Citizens for Justice and Peace (CJP). On the other side were a battery of lawyers for the SIT and the State of Gujarat. The Court was Justice Sonia Gokhani’s Court.
Beginning by explaining that we would be challenging the Order of the Magistrate Ganatra on several grounds, senior counsel Mihir Desai explained that the first and most substantive ground be on merits since it is the contention of the applicant that the Magistrate ignored substantive evidence that was available when he failed to issue process and charge sheet the accused. Secondly, Desai argued that the Magistrate’s Order is faulted and worthy of challenge on the grounds that he erred materially in holding that he did not have the power to Order further Investigation(s) into deliberate and significant lacunae in the SIT’s investigation. (Pages 61 and 377 of the Order of the Magistrate dated 26.12.2013); in this he completely ignored Smt Jafri’s substantive pleas for further investigation on some points; thirdly, by deliberately ignoring substantive evidence and arguments on the elements of wider Conspiracy behind the Violence of 2002 and restricting the scope of the complaint to only what had happened at the Gulberg society, too, the Magistrate had committed both a substantive error as also an error in law; fourthly, we had argued that there are several judgements of the Supreme Court that allow for the Protest petition of Smt Zakia Jafri (dated 15.4.2013) to itself be treated as a Complaint and the Magistrate had erred on dismissing this point Moreover, the Magistrate by simply relying on the final closure report and ignoring the Evidence (Voluminous Statements and Documentary evidence) and Reports of Malhotra dated 12.5.2010, the Magistrate had not done justice to the Complainant.
When Justice Gokhani requested to be informed on the broad facts that had led to the filing of the Criminal Complaint dated 8.6.2006 by Smt Zakia Jafri, counsel Desai explained that it arose out of evidence that pointed to the fact that the post 27.2.2002 violence in at least 300 locations of Gujarat was not a spontaneous outpouring of anger after the heinous Gujarat incident though anger may have played some role but was the result of a Conspiracy that had its roots prior to 27.2.2002 but took fruit after the incident at Godhra. That four broad types of offences including Conspiracy, Abetment, Failure of Public Servants to Perform their Duty that include and amount to Criminal Offences, and Hate Speeches to Foment Violence as Part of the Conspiracy were what this case consisted of.
Our case, said Desai included laying evidence to show that how a systematic Build-Up before 27.2.2002 was allowed (State Intelligence Bureau Messages) which, even after the heinous tragedy at Godhra had happened, further allowed the brutal 28.2.2002 to May 2002 Violence to systematically erupt. The Bandh call and its support by the ruling dispensation, the Failure to make preventive arrests or appeal for Calm, Failure to Declare Curfew and Call in the Army in time, Failure to Respond to Distress Phone Calls all were part of this Conspiracy. To make this strong case apart from relying on the witnesses like former DGP RB Sreekumar, former senior IPS officer, Rahul Sharma, IPS officer, Sanjiv Bhatt and the Tehelka Sting Operation (that has been validated in the judgement in the Naroda Patiya Case dated 29.12.2012) we are also relying on State Intelligence Bureau Messages, Phone Call Records, Police Control Room Records and Various Statements to the SIT by Various persons that are to be treated as 161 statements.
There is also the extremely contentious meeting on the night of 27.2.2002 at the then chief minister’s residence. Haren Pandya, former MOS revenue with independent charge testified as to the illegal instructions given at the meeting to the Concerned Citizens Tribunal in May 2002 (he was killed in March 2003), Justices PB Sawant and Suresh in their statements to the SIT in 2009 re-affirmed what he said, former chief minister Sureshbhai Mehta in his statement to the statement mentions then chief minister’s reaction on getting news of the Godhra incident etc.
Desai emphasised that part of the criminal conspiracy in operation was Illegal Instructions periodically top officials (contemporaneously recorded by RB Sreekumar in his Register, 2002), Doctoring of FIRs, Punishing those officers who upheld the law and protected lives and Rewarding those who went along with the Conspiracy.
Thereafter, the Court asked for clarifications of law on whether or not the Complaint dated 8.6.2006 should or could be treated as a separate FIR and a close reading of all the Supreme Court Orders on the question followed. More legal issues will be discussed tomorrow. The SIT, an agency appointed in the first instance due a petition by the Citizens for Justice and Peace (CJP) praying for transfer of investigation of major cases to the CBI, has unfortunately, since 2008 adopted a posture of hostility to the Survivors. It has also been contending that the entire matter of the Zakia Jafri case is nothing but a further inquiry into the Gulberg Society massacre. This despite the fact that it was during Malhotra’s investigation into the Zakia Jafri Complaint that, in November 2009, Sanjiv Bhatt in his first statement to the SIT revealed that he was present at the meeting at Gandhinagar at the then chief minister’s residence and illegal instructions were issued. Amicus Curiae Raja Ramachandran had found enough evidence to prosecute the then chief minister