Justice AM Khanwilkar led bench hears a petition filed by Zakia Jafri, widow of slain Congress MP Ehsan Jafri, challenging the Special Investigation Team’s (SIT) clean chit to then Gujarat Chief Minister Narendra Modi in the 2002 Godhra riots #supremecourt@narendramodi
Sr Adv 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
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
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. #ZakiaJafri#GujaratRiots#SupremeCourt
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
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
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: 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
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..
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..
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.
SC: This report was submitted before SC as preliminary enquiry and thus SIT was asked to look into the complaint as a whole right with reference to your complaint?
Sibal: Let me demonstrate what is wrong in this closure report
Rohatgi: normally investigation happens and then FIR, but in this case chargesheet and FIR was happening parallely in this case ..So technically there cannot be post FIR... and thus there cannot be statements under section 161
Sibal: 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.
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
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
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.
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. #ZakiaJafri#GujaratRiots#SupremeCourt
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. #ZakiaJafri#GujaratRiots#SupremeCourt
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
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... HC judgment relied on it saying that there is no question of fabrication
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
Sibal: the investigation was to be done by the SIT and that is our case
Sibal: Magistrate does not take any action despite our protest petition, we had also mentioned how @aajtak had telecasted parts of the sting and the transcript. that is our case my lords
Sibal: instead of taking congnisance 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
Sibal: 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
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
Sibal: Anil patel and others were full feldged supporters of the Vishwa Hindu Parishad... patel also refers to the IB officers and how sabarkanta vhp supplied arms.
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
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
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
Sibal: the bodies of Godhra riot reached Ahmedabad at 3.30 am and the curfew was not declared till 12.45 pm and about 3,000 people had gathered till 7 am. someone has to ask why was curfew not declared when godhra administration did it
Sibal: SC had said SIT was for investigating everything. Now the magistrate does not look at it even, he says Supreme Court says no further investigation ..HC says magistrate was wrong in saying so but again says on material nothing found
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
Sibal: we went 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 sc to have access to the reports
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.
Sibal: SC 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
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
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 49 S161 statements
Sibal: after this order statements in preliminary inquiry was treated as S161 statements and thereafter more 149 S161 statements were recorded (please read 49 as 149 in earlier tweet)
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 docs?
Sibal: dead bodies were handed over to jayant patel of VHP, a non govt person. bodies and property can only be handed over to the relative. the commission headed by Justice Krishna Iyer and Sawant looked at this.
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....
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
Sibal: SIT blames only the mamlatdaar for handing over the body to VHP strongmen. In this state of evidence was it not reqauired to probe the scenario and here you just record statements and forget about it.
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
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
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.
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.
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
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
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.
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?
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 sc said so
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 HC to not look at it puzzles me
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.
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
Sibal: then VHP people were appointed as public prosecutors. Dilip Pandey as a PP did not oppose to accused getting ancticipatory bail and police did not take action, giriraj kishore was allowed to come, curfew not imposed on Ahmedabad
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?
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.
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
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