Gujarat Riots: Zakia Jafri challenging the Special Investigation Team’s clean chit to Narendra Modi [LIVE UPDATES]

The Supreme Court hears a petition filed by Zakia Jafri, widow of slain Congress Member of Parliament Ehsan Jafri, challenging the Special Investigation Team’s (SIT) clean chit to then Gujarat Chief Minister Narendra Modi in the 2002 Godhra riots.A Bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar is hearing the matter.Live updates from the hearing below..Senior Advocate Kapil Sibal: I am referring to records which are official SIT records.. SIT did not do any investigation. I will prove it over the course of a few days..Sr. Adv. Sibal: Article 21 of the Constitution is about not depriving anyone of their liberty save and except in accordance with procedure established by law and thats procedure is of CrPC..Sr. Adv. Sibal: Procedure has to be fair and reasonable. That aspect is central to this case. Question is has the SIT followed the procedure established by law in dealing with evidence before them which was disregarded and never probed..Sr. Adv. Sibal: There lies also the cause of a protest petition. If the local police is not checking evidence then that should be checking into account. Please see the Bhagwant Singh case which allows real complainant to be heard..Sr. Adv. Sibal: This principle was established way back in 1961 which led to the concept of protest petition..Sr. Adv. Sibal: I firstly thank you for allowing virtual hearing since there are 23,000 pages to refer in this case. It would not have been possible in physical mode..Sr. Adv. Sibal takes the bench through a summary of precedents throwing light on the concept of Protest Petitions..Sr. Adv. Sibal: Ehsan Jafri's wife was a relative of the deceased in the case. She was the complainant and injured. She had to be heard but that was not the case..Justice Khanwilkar: Show us the independent investigation registered based on this complaint.Sr. Adv. Sibal: My complaint was sent to SIT and it was to be registered by the magistrate under 173 (2).. I said my complaint should be treated as an FIR..Justice Khanwilkar: The complaint was never registered. It was to be submitted in sealed cover to the magistrate so your complaint was taken note of when proceedings were carried on. There was no direction from this court to treat it as separate complaint..Senior Advocate Mukul Rohatgi for the SIT: Both these cases and other cases were clubbed and SIT was directed... There was no material in the complaint of 2006 and in that sense the closure report was filed by the SIT..Sr. Adv. Sibal: SIT had looked at everything, if it was only concerned with Gulbarga, then why was SIT looking at this case at all..Justice Maheshwari: it was submitted with reference to the 167 complaint of 2002.Justice Khanwilkar: This is our understanding of the 2011 judgment..Sr. Adv. Sibal: Please look at the writ petition filed by the National Human Rights Commission. (refers to the order therein...) So the SIT here was not only purposes of the Gulbarga..Sr. Adv. Sibal: When the court came on my complaint it was stated that either you investigate it, prosecute the accused or file a closure report. A sealed cover report was submitted in the Top Court...Sr. Adv. Rohatgi: Supreme Court had said go to the magistrate and then magistrate had the report concerned... that is how it happened..Sr. Adv. Sibal: If lordship thinks that SIT looked at everything then there is nothing more to argue but if the court thinks otherwise then that is my case.Justice Khanwilkar: We are hearing you....Sr. Adv. Sibal: SIT has itself told the Court in 2009 that when they are looking at the complaint of Zakia Jafri then they are facing hurdle as no one is cooperating ..this culminates into the closure report..Supreme Court: This report was submitted before Supreme Court as preliminary enquiry and thus, SIT was asked to look into the complaint as a whole right with reference to your complaint? Sr. Adv. Sibal: Let me demonstrate what is wrong in this closure report..Sr. Adv. Rohatgi: Normally investigation happens and then FIR, but in this case chargesheet and FIR was happening parallelly in this case.. So technically there cannot be post FIR... & thus, there cannot be statements under section 161..Sr. Adv. Rohatgi: Whatever material was summoned by SIT was under the powers of Supreme Court.Sr. Adv. Sibal: What is the use of SIT if investigation is not taking place..Sr. Adv. Sibal: Closure report means no offence is made out.SIT never seized any phones, never checked CDR records, never checked how bombs were manufactured and it never took stock of the accused whereabouts. So whichever way you look at it, there has to be an investigation..Sr. Adv. Sibal: Please take a look at the transcript of the recordings. These tapes are authenticated by the CBI and not touched by the SIT at all..Sr. Adv. Sibal: Most damaging fact was that the SIT ignored the sting operation reports of Tehalka which were treated as an extra-judicial confession in other proceedings such as Naroda Patiya case. That is why closure report is challenged..Sr. Adv. Sibal: This is a matter for investigation... How is a conspiracy to be established. Supreme Court: Does it speak of a larger conspiracy? Sr. Adv. Sibal: Yes, the police had accepted after about 25 Muslims were picked up....Sr. Adv. Sibal: What else is a bigger conspiracy than this? Not gulbarga for sure. Bombs were being supplied and manufactured. Bombs were even got for Rajasthan. SIT did not even arrest the people who accepted the commission of crime..Sr. Adv. Sibal: Communal violence is like lava erupting from a volcano and its an institutionalized problem, whenever the lava touches a ground on earth it scars it and it becomes a fertile ground for future revenge..Sr. Adv. Sibal: I lost my maternal parents to it in Pakistan. I am a victim of the same. I don't want to accuse A or B. A message must be sent to the world that this cannot be tolerated..Sr. Adv. Sibal: I am not on any high ranking person who gave instructions or not. You can take me on record. This is a bigger picture if rule of law can prevail or can muck be allowed to run its course..Sr. Adv. Sibal: Instead of arresting Babu Bajrangi and arresting him they accepted what Babu Bajrangi said. This is the probe which SIT carried out..Supreme Court: Is Babu Bajrangi named in your complaint? Let us the see the role ascribed to him..Sr. Adv. Sibal: We had mentioned all details in protest petition and the SIT along with the magistrate and High Court too does not take note of this. That is why we are here, My Lords..Sr. Adv. Sibal: Please see the records of sting, CBI has relied on the sting to prosecute others. the person who did the sting was a witness in naroda patiya... High Court judgment relied on it saying that there is no question of fabrication..Sr. Adv. Sibal: Magistrate has not dealt with any of this evidence.Supreme Court: The better way will be to deal with points raised in protest petitions and how magistrate looked at it. Otherwise we will be lost in 23,000 pages.Sr. Adv. Sibal: Sure, I am also lost..Justice Khanwilkar: So far as your complaint is concerned there is no 161 statement and only preliminary enquiry was done. There was no investigation per se.Sr. Adv. Sibal: The investigation was to be done by the SIT and that is our case..Sr. Adv. Sibal: Magistrate does not take any action despite our protest petition, we had also mentioned how Aaj Tak had telecasted parts of the sting and the transcript. That is our case, My Lords..Sr. Adv. Sibal: Instead of taking cognisance of the evidence the way probe was carried on was to whitewash the entire investigation. The court should have looked at the gathered evidence independently and the SIT should have been disregarded..Sr. Adv. Sibal: No action was taken against hate speech at all.Jaideep Patel's mobile phone is not even seized. There would have been several phone calls but if the phone is not seized then what investigation has taken place. Everything was before the magistrate..Sr. Adv. Sibal: The tape suggested a large number of firearms were transported from outside and even bombs were manufactured in the state. The country made guns were distributed all over and rocket launcher stands were made using thick pipes..Sr. Adv. Sibal: Anil Patel and others were full fledged supporters of the Vishwa Hindu Parishad... patel also refers to the IB officers and how Sabarkanta VHP supplied arms..Sr. Adv. Sibal: And then the testimony of Sreekumar former Gujarat ADGP was rejected by the SIT on the ground that he was denied promotion.. his testimony was corroborated by other officers then why was it rejected..Sr. Adv. Sibal: State intelligence reports suggest that swords and trishul were carried to Ayodhya and there was a lot of communal tension..Sr. Adv. Sibal: With greatest respect, no courts whether its Magistrate, High Court or this Court come to an conclusion that there was conspiracy or no conspiracy. Unless you investigate these evidences... We are still probing 1984 anti-sikh riots..Sr. Adv. Sibal: What is the use of this and SIT being set up by Supreme Court if investigation is not done? Unless of course the Supreme Court itself did not want an investigation.. that is another altogether. But, I am sure SC wanted a probe..Sr. Adv. Sibal: The bodies of Godhra riot reached Ahmedabad at 3.30 AM and the curfew was not declared till 12.45 PM, about 3,000 people had gathered till 7 AM. Someone has to ask why was curfew not declared when godhra administration did it?.Sr. Adv. Sibal: Supreme Court had said SIT was for investigating everything. Now the magistrate does not look at it even, he says Supreme Court says no further investigation.. High Court says Magistrate was wrong in saying so but again says on material nothing found..Sr. Adv. Sibal: 64 boxes containing about 23,000 pages were filed before Magistrate's Court and this was in no other case including Gulbarga or Naroda Patiya. So these documents were not filed anywhere else..Sr. Adv. Sibal: We went to Magistrate Court and stated that these 64 boxes should be supplied to us and magistrate ordered to do so. 80% was given but preliminary reports etc. was not given. Then we came to Supreme Court to have access to the reports..Sr. Adv. Sibal: Supreme Court in 2011 had said that Court shall issue notice to complainant and make available copies to her the witness statements and this was not given to us..Sr. Adv. Sibal: Supreme Court on our application to peruse rest of the boxes stated that appellant is entitled to have copies of the document and said since the statement consisted signatures those statements shall be considered as ones taken under 161..Sr. Adv. Sibal: So, if its a 161 statement then the complaint has to be a FIR. This was a sui generis proceeding taken by the Supreme Court on the basis of the complaint to be filed in Magistrate Court in Gulbarga not to be used in any other case..Sr. Adv. Sibal: This complaint was treated as an FIR else you will not have a 161 statement.. Ultimately this should allow me to file a protest petition before the Magistrate. Factually 161 statements were recorded and there were 149 Section 161 statements..Sr. Adv. Sibal: After this order statements in preliminary inquiry was treated as Section 161 statements and thereafter 149 more Section 161 statements were recorded. .Supreme Court: What is the date of closure report?Sr. Adv. Sibal: February 8, 2012..Sr. Adv. Sibal: This national tragedy could have been saved.. intelligence messages were received but not investigated....Sr. Adv. Sibal: There are telephonic conversations regarding the post mortem issues of the Godhra victims and the transcript shows who took the call and how it was done. Post mortem was done in the railway platforms and who called the doctors?.Sr. Adv. Sibal: These doctors had to be examined and its a manner of further and independent investigation. Its a matter of hasty post mortem..Sr. Adv. Sibal: Dead bodies were handed over to Jayant Patel of VHP, a non government person. Bodies and property can only be handed over to the relative. The commission headed by Justice Krishna Iyer and Sawant looked at this..Sr. Adv. Sibal: Photographs were taken of the unidentified and mutilated bodies which created a further atmosphere of hatred and discontentment and this further led to volatile and aggressive funeral processions....Sr. Adv. Sibal: The SIT never seized any phone and did not arrest any people. The decision was taken to hand over body to a VHP strong man.. it was brought to attention of court so that this is probed. But nothing of this sort happened..Sr. Adv. Sibal: SIT blames only the mamlatdaar for handing over the body to VHP strongmen. In this state of evidence was it not required to probe the scenario and here you just record statements and forget about it..Sr. Adv. Sibal: Curious that nothing of as such was done. You have to find out who is telling the truth. Can you ever imagine Mamlatdaar take this decision when a national tragedy has happened and he takes a call to give bodies to VHP? Impossible..Sr. Adv. Sibal: Even in a civil proceeding you will not reach such a conclusion, who brought these RSS workers, who got them so early in the morning. You investigate this, conduct custodial interrogation..Sr. Adv. Sibal: Messages were sent to police commissioners and no one responded to it. What was the SIT doing? Was it trying to protect the accused. It was set up by Your Lordships..Sr. Adv. Sibal: If you violate the procedure established by law then you are an accused. Our only course is a protest petition so that probe is in accordance with law. SIT has to explain why they did not do any of these things..Sr. Adv. Sibal: Police, instead of taking care of law and order, they were escorting a VHP fellow Giriraj Kishore to the hospital. Thereafter that person accompanies the 5,000 funeral mobs amidst inflammatory procession..Sr. Adv. Sibal: This case is not just this case but it's about the future..Sr. Adv. Sibal: There is empirical evidence and obviously police was taking sides and no preventive steps were taken as we have seen in many riot cases..Sr. Adv. Sibal: What happens in these communal cases is that police itself lodges the FIR & I who is an injured person and member of a family who lost a member and say in police station that I saw these people kill my father police does not accept..Sr. Adv. Sibal: This is what happens on the ground, there must be a law so that if someone tells that x y z killed my father or brother even if a second FIR is not lodged, at least the names should be recorded in the first one..Sr. Adv. Sibal: Many dead bodies were not identified.. members of the family were asked to come.. but by that time swayam sevaks were there. This means information was given by the BJP or RSS. Why was this info given in early morning like 7 AM?.Sr. Adv. Sibal: What was the police commissioner doing? The curfew was declared in Godhra but what about Ahmedabad? It was declared at 12.45 PM. Riots had already started in sola civil hospital. Magistrate washed his hands off saying Supreme Court said so..Sr. Adv. Sibal: Common element of this conspiracy was lets teach a lesson to somebody. Here probe would be required which means probing phone records, seizing phones etc. I, for one, can say that magistrate and High Court to not look at it puzzles me..Sr. Adv. Sibal: There were memorandums which said madarasas should be closed and then cabins near kabrastans were burnt. One of the SIT officers saved the lives of four Muslim children in madrasas..Sr. Adv. Sibal: Mahant Ramachandra Das had stated a huge rally of sadhus will be leaving.. SIT did even question the DM Bhavnagar about this message? Mehsana was third worst affected by Gujarat riots..Sr. Adv. Sibal: Then VHP people were appointed as public prosecutors. Dilip Pandey as a PP did not oppose to accused getting anticipatory bail and police did not take action, Giriraj Kishore was allowed to come, curfew not imposed on Ahmedabad..Sr. Adv. Sibal: Why should innocent persons be attacked in this fashion? This is not rule of law. Then you say you cannot recognise accused at night. If this is not conspiracy then what is?.Sr. Adv. Sibal: No court with a conscience can look into this evidence. This woman had to be in house for iddat and then she gave her testimony. Mob near her house were shouting slogans. All her family members were burnt alive..Sr. Adv. Sibal: I am informed that this incident was tried elsewhere... Justice Khanwilkar: You are trying to give all these examples to show that this is a larger conspiracy.Sr. Adv. Sibal: What I am trying to show is that there is a common chain..Sr. Adv. Sibal: Conspiracy is ultimately circumstantial evidence and direct evidence becomes difficult in this case. Now, I have to refer to volume 5. Please grant me respite and allow me to continue tomorrow.

Gujarat Riots: Zakia Jafri challenging the Special Investigation Team’s clean chit to Narendra Modi [LIVE UPDATES]

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