A high-voltage hearing was on Monday witnessed in a case of alleged fabrication of evidence in a 2002 post-Godhra riot case in the Supreme Court which asked a volley of questions to social activist Teesta Setalvad for opposing a probe against her former aide Rais Khan Pathan.
The apex court was hearing the appeal filed by Setalvad and her NGO, Citizen for Justice and Peace (CJP), against a decision of the Gujarat High Court upholding a magisterial court order for a probe against Pathan. “It is a serious offence whosoever has done it. Either they (Setalvad and her NGO, Citizen for Justice and Peace) are wrong or Pathan is wrong. We will look into it,” a bench of justices Arun Mishra and Amitava Roy said.
Senior advocate Kapil Sibal, appearing for Setalvad, questioned the procedure adopted for continuing with the probe against Pathan when his petition to become a court witness was dismissed. However, Additional Solicitor General Tushar Mehta and senior advocate Mahesh Jethmalani, appearing for the Gujarat government and Pathan respectively, said Setalvad and her NGO have no locus standi in the criminal case as they were not parties to the matter either in the high court or the trial court.
After hearing the matter partly, the bench posted it for hearing to August 21, saying it would examine the matter on the question of law. It refused to grant four weeks to Setalvad to keep ready the compilations, brief notes and synopsis of the matter.
When Sibal sought more time, the bench said it will “vacate the stay on the high court order and allow the investigation to continue and list the matter after six months”.
At the outset, the bench wanted to know from Sibal about Pathan who had fallen out of favour with Setalvad. She had fired him from her NGO where he had worked for six years from 2002. The senior advocate, who replied to a number of questions from the bench, said he was a field worker in the NGO, but after his ouster he has been filing applications in various riots cases with a political motive in mind.
The apex court had on September 2, 2011 stayed the high court’s order giving a green signal for an investigation against Pathan for allegedly fabricating evidence in the Naroda Gam riots case.
During the trial in the case, the additional sessions judge had on December 3, 2010 rejected the application of Pathan seeking to be examined as a court or prosecution witness to “prove that some of the witnesses and victims had falsely implicated him in fabricating the evidence”. He had said he would be an important link to throw light on how the victims and witnesses were tutored, cheated and made to sign false affidavits by Setalvad in the name of “interest of community”.
However, the sessions court had directed and authorised the registrar, City Civil and Sessions Court, Ahmedabad to make a complaint in writing for the offences under the Indian Penal Code (IPC) against Pathan and others.
These relate to false evidence, giving or fabricating false evidence with the intent to procure conviction of capital offence or imprisonment for life or imprisonment for seven years or upwards and using as true such declaration knowing it to be false among others.
Thereafter, the registrar filed a criminal case/complaint against Pathan and others in metropolitan magistrate court in Ahmedabad which on January 10, 2011 directed the assistant commissioner of police, Ahmedabad to inquire and investigate the matter and submit a report.
The order was challenged before the high court which on July 11, 2011 declined to interfere with the police investigation, but observed and clarified that “basically the aforesaid police investigation would be with respect to unnamed accused persons who are yet to be traced and whose names are yet to be disclosed during the course of investigation”.
Pathan had not challenged any of the findings and observations made against him that a prima facie case was made out for the various offences under the IPC. The trial in the Naroda Gam case is at the final stage.