Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, dismissed Zakia Jafris plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State of Gujarat against the minority community.
Brief Background
In February 2002, 59 people were killed after, Kar-sevaks returning from Ayodhya, were allegedly attacked and coaches of Sabarmati Express train were set on fire. As an aftermath, there was unrest and violence all across the State of Gujarat that killed thousands of people. Zakia Jafri, like many others, lost her husband Ehsan Jafri to the 2002 Gujarat riots.
Zakia Jafri, along with Teesta Setalvad, filed a complaint where she mentioned names of 63 persons, who according to her, were involved in larger conspiracy and abetment of the crime resulting in carnage between February, 2002 and May, 2002, that shook the State of Gujarat. This list also mentioned the name of the then Chief Minister of Gujarat and now Prime Minister of India, Narendra Modi. The SIT, in it’s final report dated 08.02.2012, has not found any material indicating larger criminal conspiracy by the persons mentioned in the complaint.
Supreme Court’s Key Observation
- The riots across the State had taken place spontaneously, immediately after the Godhra Train Carnage. In the investigation done by the SIT in all the nine (9) sets of cases, no material was discovered pointing towards any meeting of minds/conspiracy in the higher echelons of the administration or the political establishment conspired with other persons to cause such riots or for having turned nelson’s eye when the riots had triggered and continued.
- The testimony of Sanjiv Bhatt, Haren Pandya and R.B. Sreekumar was only to sensationalize and politicize the matters in issue, although, replete with falsehood. For, persons not privy to the stated meeting, where utterances were allegedly made by the then Chief Minister, falsely claimed themselves to be eyewitnesses and after thorough investigation by the SIT, it has become clear that their claim of being present in the meeting was itself false to their knowledge. On such false claim, the structure of larger criminal conspiracy at the highest level has been erected. The same stands collapsed like a house of cards.
- The inaction or failure of some officials of one section of the State administration cannot pass the muster of hatching of a criminal conspiracy, for which the degree of participation in the planning of commission of an offence of this magnitude must come to the fore in some way. The SIT was not there to enquire into the failures of the State administration, but the remit given to it by the Court was to enquire into the allegations of larger criminal conspiracy (at the highest level).
“Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration.”
- The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State. The linking of such failures is not enough to entertain a suspicion about hatching of criminal conspiracy at the highest level, which requires a concerted effort of all the persons concerned and more importantly, clear evidence about meeting of the minds to accomplish such design, much less of causing and precipitating mass violence across the State.
- The offence of conspiracy is independent of other offences. It takes place when there is an agreement to do or cause to be done an illegal act, or an act which may not be illegal but by illegal means. The rationale of conspiracy is that the required objective manifestations of dispositions of criminality is provided by the act of agreement. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they will accomplish the unlawful object of the conspiracy.
- There is no merit in the argument of the appellant that the SIT had failed to collect the call records of the accused persons, not analyzed the available call records and failed to seize the phones of persons involved. The events had unfolded in the year 2002 and the SIT was constituted only in the year 2008 to look into and enquire into the complaint of appellant, dated 8.6.2006. The SIT due to lapse of time, was not in a position to verify the authenticity of the CDs regarding telephone calls and in any case, the call history by itself would not have been sufficient to suspect commission of any offence, much less of hatching larger criminal conspiracy, which was required to be investigated by the SIT.
- The act of transfer/posting of officials has been after the unfolding of mass violence across the State. It was obviously an administrative matter to address the expediencies of that situation. The Court failed to understand as to how this circumstance can be reckoned as hatching of criminal conspiracy resulting into mass scale violence across the State aftermath Godhra incident. Such conspiracy ought to have preceded the triggering of mass violence.
Appreciating the SIT officials for the indefatigable work done in the challenging circumstances they had to face and coming out with flying colours unscathed, the Court observed that it appeared that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation.
“As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”
[Zakia Ahsan Jafri v. State of Gujarat, 2022 SCC OnLine SC 773, decided on 24.06.2022]
For Petitioner(s) Mr. Kapil Sibal, Sr. Adv. Mr. Mihir Desai, Sr. Adv. Ms. Aparna Bhat, AOR Ms. Karishma Maria, Adv.
For Respondent(s) Mr. Tushar Mehta, SG Mr. Mukul Rohatgi, Sr. Adv. Mr. Maninder Singh, Sr. Adv. Mr. Kanu Agrawal, Adv. Ms. Devanshi Singh, Adv. Mr. Prabhas Bajaj, Adv. Mr. Pranav Saigal, Adv. Mr. Shantnu Sharma, Adv. Mr. Madhav Sinhal, Adv. Ms. Deepanwita Priyanka, AOR
For Intervenor(s) Mr. Aldanish Rein, AOR
Ed. Note: The judgment that was pronounced by Justice AM Khanwilkar, does not clearly mention which of the three judges on the Bench has authored it.