MRS. ZAKIA AHSAN JAFRI V/S MR. NARENDRA MODI & OTHERS
ON THE COMPLAINT DATED 8.6.2006 & AGAINST THE FINAL REPORT OF THE SPECIAL INVESTIGATION TEAM DATED 8.2.2012
(PART I) 1
Vide Judgements (Case Law) 3
Background of the Present Complaint 4
Incidents specified in Complaint± pp. 138 to 140, (para 13) 5
Incidents widespread in 19 of the State‘s districts (coloured maps) 5
A.Failure to Take Steps Statutorily Required under Law to Prevent the Outbreak and Spread of Violence 7
B.Failure to Take Statutorily required Steps to Control Mob Violence 8
28.COMPLAINT dated 8.6.2006: Offences alleged 13
Facts of the Protest Petition 20
Narration 27.2.2002 7.55 ± 9 a.m. 20
Between 9-10.30 a.m.27.2.2002. 21
10.30 hours 27.2.2002 23
1300 hours 27.2.2002 24
1330 ± 1530 hours 27.2.2002 Post mortems 26
1530-1645 hours 27.2.2002 Departure 29
16.45 ± 19.45 hours 27.2.2002 29
Decision to Hand Over Dead Bodies to Mr Jaideep Patel A-21 & Transport Dead Bodies to Ahmedabad 31
1945 ± 2230 hours 27.2.2002 31
This application/objections have been filed pursuant to the order dated 12.9.2011 passed by the Hon‘ble Supreme Court as well as the subsequent order dated 7.2.2013 passed by the Hon‘ble Supreme Court. (Annexure – Compilation includes all the Orders passed by the Hon’ble Supreme Court in this case). The Complainant submits that the Closure Report submitted by the SIT requires to be rejected in too. The said Report concludes that no offence of any nature has been made out against any of the accused. It is our submission that this Hon‘ble Court take cognizance against each of the accused in relation to offences which they have been alleged to have been guilty in the Complaint dated 8.6.2006.
1.That at the outset, it may be pointed out that the complaint filed by the petitioner was sent for investigation to the SIT by an order dated 27.4.2009 passed by the Hon‘ble Supreme Court. After conducting the investigation, SIT had submitted the reports before the Hon‘ble Supreme Court. The said complainant‘s case is, therefore, a separate police case and should, therefore, be treated as such. This case should not be confused/clubbed with the other independent and individual cases based on separate F.I.R.s, filed, prosecuted and even being tried which are related to the separate incidents related to the Gujarat carnage of 2002. This has been conclusively clarified by the Hon‘ble Supreme Court in its Order dated 7.2.2013. The SIT is purposefully trying to confuse the present case, which is independent of other cases and has to be dealt with and tried as such, a separate criminal case.
2.The brief facts leading to the filing of final report by the SIT are that the petitioner/ complainant had filed a complaint before the Police authorities and when no action was taken, she had approached the High Court of Gujarat under Article 226 of the Constitution read with Section 482 of Cr.P.C. that her complaint should be investigated by the Police/C.B.I. The High Court of Gujarat on 2.11.2007 directed that the complaint can be treated as a private complaint and, therefore, declined the reliefs sought for by the petitioner. This order of the High Court of Gujarat was challenged by the petitioner before the Hon‘ble Supreme Court and the Hon‘ble Supreme Court, vide order dated 27.4.2009, directed that the complaint of the petitioner be investigated by the SIT.
3.That thereafter, the SIT conducted investigations which resulted into filing of 4 reports by the SIT which are as follows:
4.The Hon‘ble Supreme Court finally disposed of the Special Leave Petition on 12.9.2011 by permitting the petitioner to file a protest petition in case a final report finding no accused guilty of committing any crimes is submitted by the SIT.
5.That the SIT not only did not provide, but actively opposed providing the complete documents collected during Investigation including of the SIT reports as mentioned in Para 3 above and, therefore, the petitioner again approached the Hon‘ble Supreme Court for furnishing the above-said 4 reports. Other documents were provided through an Order of the Ld. Magistrate dated 10.4.2012. The SIT that had been clearly directed by the Order of the Hon‘ble Supreme to supply all documents and reports related to the Investigation in effect resisted and delayed matters to such an extent that between 8.2.2012, when its final report was filed, and 7.2.2013, when the Hon‘ble Supreme Court finally directed that all reports should be provided to the Complainant, a year had passed.
6.That by an order dated 7.2.2013, the Hon‘ble Supreme Court directed that all the reports which were submitted by the SIT be supplied to the petitioner to enable her to file an effective Protest Petition/Objections to the final report submitted by the SIT It is in the above background that the Complainant/Petitioner is submitting this Protest Petition.
7.That in deciding the Protest Petition the Hon‘ble Court has to exercise its Independent mind on the Final Report submitted by the Investigating Agency. The Court is not bound by the conclusions drawn by the Investigating Agency. The Court has to look at the material to satisfy itself whether prima facie it is a case for taking cognizance of the offence. The material has to be looked at, not from the angle that it is sufficient for conviction but that the material is sufficient for proceeding with the case. The Court cannot adjudicate on the material to find out whether an offence is made out or not, which is the domain when the trial starts and evidence is led by the parties.
Vide Judgements (Case Law)
8.That before going into the detailed submissions and factual aspects, it is necessary to discuss what jurisdiction this Court has in deciding the protest petition and in accepting or rejecting the final report submitted by the SIT as an investigating agency. It has been held by several judgments of the Hon‘ble Supreme Court as well as the High Courts that at this juncture, the jurisdiction of the learned Court is very limited. The Court can only examine whether prima facie, there is reasonable material to take cognizance of the offence. In case, there is reasonable suspicion, prima facie a case is made out from the material on record; the court has a duty to issue process against the accused. The Court cannot look into and discuss or adjudicate on the material on record to find out whether an offence is made out or not. That is a domain when the trial starts and evidence is led by the parties.
9.That the Petitioner/Complainant submits that this Court, while deciding the protest petition and appreciating the final report submitted by the SIT, has to look into following amongst other issues:
(1) Whether on the basis of material which has been submitted by the SIT, a case of reasonable suspicion/prima facie case is made out against the accused and thus, requiring cognizance to be taken by the Court. It is enough if the Court feels that it is necessary to proceed against the accused and/or whether triable issues are made out.
(2) Whether the SIT, during investigation, has collected all the relevant material which it was required to do in conducting fair investigation.
(3) Whether it was within the jurisdiction of the Investigating agency to adjudicate on the material which came out during the investigation, i.e., to reject the statement of a particular witness or to accept the statement of a particular witness in order to come to the conclusion that no offence is made out, particularly when the statement made under section 161 of Cr.P.C. clearly pointed out to reasonable suspicion/prima facie case of commission of the crime.
(4) Whether a case is made out for directing further investigation under section 173(8) of Cr. P.C. as the SIT has omitted to consider the relevant evidence which connects the accused with the crime.
(5) That in case this Court comes to the conclusion that the investigation done by the SIT was not proper or important facts/documents/links were not looked into, to favour the accused, or otherwise, whether a separate investigating agency will be required for further investigation under section 173 (8) of Cr. P.C. In that eventuality, this Court has also to decide whether the prosecution can be controlled by the SIT which has conducted investigation in such a blatantly biased manner.It is of the utmost importance that the truth of the allegations against them is determined by a competent forum. Such a course would subserve public interest and public morality because the Chief Minister and Ministers, the civil servants, the Magistracy and the Police of a State should not function under a cloud. It is imperative, therefore, that further investigation be conducted in a thoroughly impartial manner. See: Vishwanath Chaturvedi v. Union of India: (2007) 3 SCALE 714 at 724 para 36 (Writ Petition under Article 32 of the Constitution) = (2007) SCC.