Dismissing the appeal by Zakia Jafri, wife of former Congress MP Ahsan Jafri who was killed during the 2002 Gujarat riots, against the Special Investigation Team clean chit to then Chief Minister Narendra Modi and others over allegations of conspiracy in the riots, the Supreme Court, in its judgment three days ago, referred to proceedings being pursued to “keep the pot boiling, obviously, for ulterior design” and said “all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law”.
The bench of Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar underlined that “materials collected during the investigation do not give rise to strong or grave suspicion regarding hatching of larger criminal conspiracy at the highest level for causing mass violence across the State against the minority community and more so, indicating involvement of the named offenders and their meeting of minds at some level in that regard”.
Yet it was the Supreme Court which, through hearings and orders over the years, called for “fair and impartial investigation” into the riots cases. Two cases — of the Best Bakery and Bilkis Bano — were moved out of Gujarat to Maharashtra.
At one point, the top court even expunged remarks of the Gujarat High Court against activist Teesta Setalvad and others – Setalvad was arrested last Saturday by the Gujarat police, a day after Zakia Jafri’s petition was dismissed.
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◙ On April 12, 2004, while ordering retrial in the Vadodara Best Bakery case after 21 accused were acquitted, the bench of Justices Doraiswamy Raju and Arijit Pasayat said, “Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become flies in the hands of these ‘wanton boys’.”
On the investigation and the trial court that ordered the acquittals, the judges said, “One gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the State Government also leaves much to be desired.”
Hearing another petition the same day by Teesta Setalvad and others, the two judges expunged remarks made by the Gujarat High Court against her and the others: “Observations should not be made by Courts against persons and authorities, unless they are essential or necessary for decision of the case… There is no need or justification for any unwarranted besmirching of either the parties or their causes, as a matter of routine. Courts are not expected to play to the gallery or for any applause…”
◙ Earlier, on September 19, 2003, when the then Chief Secretary PK Laheri and DGP K Chakravarthi were summoned, the bench of Chief Justice of India VN Khare, Justices Brijesh Kumar and S B Sinha asked Chakravarthi what steps he took when he learnt that witnesses were turning hostile. Chakravarthi said, “I did ask the Police Commissioner why they turned hostile. Answer is they appear to have been won over. I have made enquiry from the Police Commissioner who told me that these witnesses appear to have been won over by the accused.”
Asked why he had not taken steps for their re-examination, Chakravarthi said, “I came to know at a much later date.”
At this, Justice Sinha asked: “Do you mean to say that you asked the Police Commissioner only after the judgment of acquittal was passed?”. Chakravarthi said, “I do not remember the exact date. I did not take any steps even after coming to know that witnesses have been won over by the accused.”
Chakravarthi died in 2020.
◙ On November 21, 2003, the bench of CJI V N Khare, Justices S B Sinha and A R Lakshmanan stayed trial in 10 major riot cases on petitions seeking an independent investigation into the cases besides shifting of trials outside Gujarat.
◙ On August 17, 2004, the bench of Justices Ruma Pal, S B Sinha and S H Kapadia directed that a riot cell be formed under the DGP to reopen cases closed by local police stations, and file quarterly reports.
Stating that it would not proceed on the basis “that the entire investigating machinery in the State has failed”, the bench said “there should be further/more extensive and in-depth investigation into cases, numbering 2000, in which ‘A’ Summary Reports have been filed resulting in closure of cases at the threshold and that the State should consider further/extended investigations through its own high ranking officers to which none of the concerned parties (including State of Gujarat) had any objection”.
In its order, the bench said, “The Non-Governmental Organizations which have been participating in this entire process, will be at liberty to draw the attention of the Range Inspector General to any particular case within the District of a particular Range Inspector General and the Range Inspector General will consider the same before deciding whether further/fresh investigation or what action, if any, needs to be taken in connection with the FIRs filed. The Range Inspector General shall see whether the FIRs already filed are defective/deficient or faulty in any manner.”
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◙ On March 26, 2008, the bench of Justices Arijit Pasayat, P Sathasivam and Aftab Alam said, “Communal harmony is the hallmark of a democracy. No religion teaches hatred. If in the name of religion, people are killed, that is essentially a slur and blot on the society governed by rule of law… Religious fanatics really do not belong to any religion. They are no better than terrorists… These are cases where there is an element of communal disharmony, which is not to be countenanced. The State of Gujarat has stated that it has no objection if further investigation is done so that peoples’ faith on the transparency of action taken by the State is fortified”.
The Court called for a report in three months on investigations into the cases of the Godhra train burning, the killings in Naroda Patiya, Naroda Gam and Gulberg Society in Ahmedabad, Sardarpura and Dipda Darwaja in Mehsana district, two cases in Ode of Anand district and the killing of British nationals in Prantij, Sabarkantha district.
The Court asked the Gujarat government to issue a notification to appoint the SIT headed by RK Raghavan, retired Director of CBI.
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