“THE TRUTH BEHIND THE LARGER CONSPIRACY MUST BE ESTABLISHED”

Gujarat Carnage:

Magistrate Order Challenged by CJP

Below is the full text of the statement issued by Citizens for Justice and Peace (CJP) on March 18, 2014 regarding the legal developments pertaining to Gujarat 2002 riots cases.

SURVIVOR of the 2002 Gujarat carnage and widow of eminent parliamentarian, Zakia Ahsan Jafri, has filed a Criminal Revision Application before the Gujarat High Court challenging the Order of the Magistrate rejecting her Protest Petition seeking to arraign powerful accused Narendra Modi, chief minister of Gujarat and 59 others on charges of criminal conspiracy, abetment etc to commit mass murder, arson and rape, and also tamper with evidence and destroy valuable records of the Gujarat home department. The Revision appeal was filed on 15th March 2014 and will come up for hearing on 20th March 2014.

The applicant Zakia Jafri also prays for the rejection of the closure report of the Special Investigation Team (SIT) dated 8.2.2012. The Magistrate had, on 26.12.2013, rejected the Protest Petition filed by Zakia Jafri, assisted by Citizens for Justice and Peace, on 15.4.2013. Substantive arguments seeking to establishing strong suspicion of a conspiracy committed at the highest level were made by the petitioner’s advocates and detailed written and oral submissions were submitted on 25.9.2013.

SUBSTANTIVE

GROUNDS

The Criminal Revision Application that runs into about 540 pages laid out substantive grounds for rejection of the Order of the Magistrate B J Ganatra dated 26.12.2013. At the outset it points out the double faced role played by the SIT once the matter stopped being monitored by the Supreme Court and was completely handed over to the Crime Branch, Ahmedabad. In the substantive grounds laid down in the Criminal Revision Application to challenge the Order of the Magistrate are the following:-

• The Metropolitan Magistrate committed a fundamental error in law and on facts in failing to exercise his jurisdiction. By not dealing with the substantive arguments laid down by Smt Jafri in written and oral submissions, the Judge has simply accepted the contentions in the closure report with a non-application of mind.

• That the learned Metropolitan Magistrate has failed to consider the following material that was put to establish prima facie the involvement of Accused No. 1 in serious crimes of conspiracy and abetment and which was sufficient to establish his involvement in the conspiracy and abetment of crimes of murder, arson and rape:

(I) Evidence on phone call contact between A-1 and Co-Conspirators as soon as news of Godhra Incident occurred;

(II) Failure to take preventive measures and instead support a bandh, allow post mortems of gruesome burned bodies in the open and, in short, allow the streets of cities and villages to be taken over by rampaging mobs;

III) Illegal Instructions were issued to high level policemen and bureaucrats to not follow the Law and on the next day Cabinet Ministers were posted in control rooms to ensure that these illegal instructions were carried out;

IV) Destruction of Key records of the CMO and Home Department and tampering with others to obstruct the cause of Justice;

V) Allow rape, murder and arson to be the Weapon through which unlawful acts are allowed and subversion of justice follows.

• That the learned Metropolitan Magistrate has either not referred to the above facts which were put together in order to prima facie establish conspiracy or has distorted the sequence by going to the extent of not treating the statement of Sureshbhai Mehta, Haren Pandya and Justice Sawant and Justice Suresh as statements under 161 Cr.P.C (statements related to the controversial meeting of 27.2.2002) It is shocking that if a statement is made under 161 Cr.P.C. which prima facie points at conspiracy has been brushed aside by the Magistrate, by evaluating such statements as if he is conducting a Trial and on that basis passing a Judgment. Time and again, the honourable Supreme Court has held that the learned Metropolitan Magistrate is not supposed to evaluate the Section 161 Cr.P.C. statements as statements made during a criminal trial and if he does so he commits a jurisdictional error. In spite of the petitioner citing judgments on the said legal positions and explaining that the mistake that was mischievously committed by the SIT should not be repeated, the learned Metropolitan Magistrate fell into the same trap and neither analysed nor discarded or appreciated the statements as if he was conducting a trial which was beyond the scope of his jurisdiction at this stage.

• That the learned Magistrate erred in holding that neither Sanjiv Bhat nor Haren Pandya’s presence at the meeting on 27.2.2002 could be believed. The learned Magistrate erred in believing the versions of the other persons present at the meeting when they were themselves accused in the present case and could not be expected to tell the truth. The learned Magistrate ought to have accepted the observation of the Amicus Curie that the matter needed to be tested in the trial. In fact the learned Magistrate completely ignored the contradictions in the statements of various accused regarding who was present and what was spoken at the meeting. The learned Magistrate also erred in not relying on the statement of Sanjiv Bhat’s driver. In fact the Magistrate ought to have drawn adverse inference on the basis of the missing log book of the car. The learned Magistrate also completely ignored the statement of Haren Pandya’s father recorded under Sec. 161 Cr.P.C. He also failed to appreciate the true significance of the statement made by Haren Pandya before the Concerned Citizens Tribunal, before retired judges of the High Court and the Supreme Court. The learned Magistrate also failed to appreciate the statements given to the SIT in this connection by two retired judges: one of the Supreme Court and another of the High Court. The learned Magistrate failed to draw obvious conclusions as to the reasons behind why, at such a crucial law and order meeting after the tragedy of the kind that had taken place at Godhra, no minutes were maintained of the Proceedings as is Standard Operational Procedure (under the Gujarat Police Manual) and accepted practice. It is also shocking that the statements of Sanjiv Bhatt could have been discarded at this stage.

• That the learned Magistrate ought to have held that at least three witnesses i.e. Sanjiv Bhatt, R B Sreekumar and Rahul Sharma, all serving officers, had all testified (given evidence/statements) so as to bring out a case of conspiracy and involvement of the accused in various offences. The learned Magistrate ought to have realised that the veracity of these witnesses could only have been tested during a criminal trial and there was no justification to disbelieve them at this stage.

• That the learned Metropolitan Magistrate has committed a serious error of not looking into the prima facie material for taking cognizance and issuing notice not only vis-a-vis Narendra Modi (A-1), which is mentioned above, but also with regard to the other accused against whom also prima facie material was available for taking cognizance and issuing process. The facts concerning Narendra Modi, A-1, have been outlined above but as far as other accused are concerned the entire material has been put in the annexure which will be referred to at the time of arguments.

• That a fundamentally wrong approach and a failure in exercising Jurisdiction by the learned Metropolitan Magistrate becomes clear from the finding of the learned Metropolitan Magistrate that he cannot look into larger conspiracy. The learned MM ought to have seen that the honourable Supreme Court had made it clear in its Order dated 12.9.2011 that it was for the learned Metropolitan Magistrate to decide/adjudicate further, on the question of taking Cognizance in accordance with well established principles of law and moreover the honourable Supreme Court had made it clear that none of the observations of the honourable Supreme Court will come in the way of deciding the said question. It was therefore, left solely upon learned Metropolitan Magistrate to take a decision by applying legal provisions and exercising his Jurisdiction independently to consider whether prima facie any case is made out for taking cognizance. By making the above and other observations the learned Metropolitan Magistrate has virtually abdicated his duty and thus failed in exercising the jurisdiction vested in him.

• That the petitioner had argued that the SIT had failed in discharging its duty of conducting a free and fair Investigation in as much as, wherever further Investigation was required, it has left that area uninvestigated by observing that sufficient evidence has not come on record. Again the law as settled in this regard is that the duty of the Investigating agency as well as the duty of the Court is to find out the truth regarding commission of an offence and for that purpose the Court can direct further Investigation under 156(3) of Cr.P.C. and 173(8) Cr.P.C. As far as the Investigating agency is concerned, it is always open to it to file supplementary charge sheets at any stage. The petitioner had therefore submitted that further Investigation was required as the SIT had not acted impartially and for that purpose an independent investigating agency be entrusted the job of conducting further investigation and filing a supplementary charge-sheet. The learned Metropolitan Magistrate though was apprised at length and in detail of this gross carnage which was a part of the larger conspiracy, he ought not to have allowed the offenders to go scot free by observing that sufficient material is not available on record to take cognizance and issue process. The seriousness of the offences which took place in different parts of Gujarat is unparalleled and it was grossest against society, somewhat akin to genocide and, therefore, it was the duty of the learned Metropolitan Magistrate that even if there is lacunae purposely left by SIT, to direct further investigation so that the truth behind the larger conspiracy could be established. The learned Metropolitan Magistrate has completely failed in discharging his duty and establishing faith of the common man in the Criminal Justice System of the Country.

• That the learned Magistrate erred in holding that further investigation directed by the Supreme Court was only in respect of the Gulberg case. This was a deliberate and mischievous confusion created by the SIT, which was clarified in the Order dated 7.2.2013. In any case, the complaint by the petitioner constituted independent offences for investigation and were so treated by the honourable Supreme Court.

• The learned Magistrate failed to appreciate the clearcut directions of the honourable Supreme Court in SLP (Cr.) 8989/2012 wherein it had ruled that the statements with signatures that are a part of the investigation papers of the SIT should be treated as Sec. 161Cr.P.C. statements following the Orders of further investigation under Section 173 of the Code of Criminal Procedure;

• The learned Magistrate erred in holding that the Protest Petition itself could not be treated as a complaint.

• The learned Magistrate completely ignored or failed to apply judicial mind to the fact that there was overwhelming evidence collected by the SIT itself to send the accused to trial.

• The learned Magistrate failed to understand the principles of command responsibility as prescribed under the Indian law and also failed to apply the correct principles under the provisions of the Indian Penal Code concerning the law on conspiracy, aiding and abetment and hate speech.

The entire team of the Citizens for Justice and Peace has contributed to the effort since 2007. The team of advocates of the Supreme Court and High Court including Sanjay Parikh, M M Tirmizi, Mihir Desai, Aparna Bhat, Ramesh Pukhrambam and Secretary, CJP, Teesta Setalvad are the active members of this legal team.

(The Trustees of CJP are I M Kadri; Nandan Maluste; Teesta Setalvad; Cyrus Guzder; Javed Akhtar; Alyque Padamsee; Anil Dharker; Ghulam Pesh Imam; Javed Anand; Rahul Bose and Cedric Prakash.)