It is not an ordinary matter that can be dismissed lightly when not just one Judge or two Judge but three learned Judges comprising of Justice AM Khanwilkar, Justice Dinesh Maheshwari and Justice CT Ravikumar of the highest court of the land that is the Supreme Court unanimously in an extremely learned, laudable, landmark and latest 452-page judgment titled Zakia Ahsan Zafri vs State of Gujarat & Anr in Criminal Appeal No. ………./2022 (arising out of SLP(Crl.) No. ………./2022 @ Diary No. 34207/2018) and cited in 2022 LiveLaw (SC) 558 delivered as recently as on June 24, 2022 dismissed a petition that was filed by Zakia Ahsan Zafri challenging the closure report that was filed by Special Investigation Team (SIT) discarding completely the allegations of larger conspiracy by high state functionaries including the then Gujarat Chief Minister and now Prime Minister Narendra Modi and 63 others in the Gujarat riots of 2002 that ensued the Godhra train massacre in which many Hindu pilgrims were killed! The Bench had reserved judgment on December 9, 2021. The Bench held that there is no material for further investigation as well and that the SIT’s closure report should be accepted as it is, without anything more. This case is the biggest pointer to the irrefutable fact that media sensationalism cannot influence the court in anyway nor can the names of high profile lawyers like Kapil Sibal among others who pursued this case most seriously nor the maze of arguments forwarded by Sibal and others lawyers who left no stone unturned to convince the Bench but which just failed to cut any ice with the Bench as Court goes only by law and evidence alone and nothing else!
To start with, this refreshing, robust, rational, remarkable and recent judgment by a three Judge Bench of the Apex Court sets the ball rolling by first and foremost putting forth in para 1 that, “There is a delay of 216 days in filing of this special leave petition against the judgment and order dated 5.10.2017 passed by the High Court of Gujarat at Ahmedabad (for short, “the High Court”) in Criminal Revision Application No. 205/2014. Even though the explanation offered in the application for condonation of delay is blissfully vague and bereft of any material facts and particulars, keeping in mind the subject matter involved, we deemed it appropriate to ignore/condone the delay and proceeded to hear the matter on merits.”
To put things in perspective, the Bench then envisages in para 2 that, “We must note that the respondents had faintly objected to the hearing of this matter on merits owing to unexplained delay in filing of the petition. However, they have a serious objection to the joining of Ms. Teesta Setalvad (as petitioner No. 2). Firstly, because, the protest petition on which impugned order had been passed and assailed in this appeal, was filed only by the appellant (hereinafter, “appellant” means Zakia Ahsan Jafri only) – Zakia Ahsan Jafri, wife of deceased – Mr. Ehsan Jafri and on the earlier occasion (proceedings before the High Court), it has been ruled that she had no locus standi to join the cause of appellant, which opinion has become final as it has not been reversed by this Court in SLP(Crl.) No. 1088/2008. Secondly, the antecedents of Ms. Teesta Setalvad need to be reckoned and also because she has been vindictively persecuting this lis for her ulterior design by exploiting the emotions and sentiments of appellant – Zakia Ahsan Jafri, the real victim of the circumstances. On the other hand, according to Ms. Teesta Setalvad, she is a bonafide crusader of human rights issues and has been following this case closely being fully convinced about the cause in quest of justice. However, as aforementioned, we have leaned in favour of examining the merits of the challenge to the impugned order(s) at the instance of appellant – Zakia Ahsan Jafri. For, because of the subject matter, this Court in the past had to invoke its role of parens patriae in issuing sui generis directions including in constituting a Special Investigation Team3 to investigate into the matter and to present appropriate report before the Metropolitan Magistrate taking cognizance of Crime Report (CR) No. 67/2002 dealing with the Gulberg Society, Meghaninagar case. Thus, we do not wish to dilate on the issue of locus of Ms. Teesta Setalvad and keep that preliminary objection open to be decided in an appropriate case.”
Needless to say, the Bench then states in para 3 that, “In that light, we have granted leave to appeal and decided to examine the matter on merits at the instance of the appellant – Zakia Ahsan Jafri.”
PREFACE
While elaborating on the background of the case, the Bench then mentions in para 4 that, “Shorn of unnecessary factual matrix, this matter essentially emanates from the sui generis directions given by this Court on 27.4.2009 (2009 SCC Online SC 6 – Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors.) in SLP(Crl.) No. 1088/2008, whilst considering challenge to the decision of the High Court dated 2.11.2007, rejecting the prayer of the appellant – Zakia Ahsan Jafri for issuing direction to the concerned authority to register an FIR on the basis of complaint presented by her on 8.6.2006 to the Director General of Police, Gujarat. However, this Court vide stated order (dated 27.4.2009 supra at footnote No. 4), directed the SIT appointed by it in terms of the order dated 26.3.2008 [(2009) 6 SCC 342 – National Human Rights Commission vs. State of Gujarat & Ors.], to “look into” the complaint dated 8.6.2006 and take steps as required by law and to give its report to this Court within three months. Consequent to such direction, the SIT submitted its successive reports on the basis of investigation done by it including by taking into account the observations of the Amicus Curiae appointed by this Court. Treating the further report submitted by the SIT as analogous to report under Section 173(8) of the Code of Criminal Procedure (for short, “the Code”), this Court permitted the SIT to place it before the Magistrate taking cognizance of CR No. 67/2002 concerning trial in Gulberg Society case with further direction to the Magistrate to then proceed in accordance with law, including to give opportunity to the appellant in the event of final report submitted by the SIT was to recommend closure of her complaint. Appellant – Zakia Ahsan Jafri, after being served with the final report dated 8.2.2012 alongwith relevant materials adverted to therein, then filed protest petition on 15.4.2013. This protest petition came to be rejected by the Metropolitan Magistrate vide order dated 26.12.2013 and instead, the final report of the SIT came to be accepted. This decision was carried before the High Court by way of Criminal Revision Application No. 205/2014. The revision application came to be disposed of on 5.10.2017, against which the present appeal arises for our consideration.”
FACTS
Briefly stated, while elaborating on the facts, the Bench then states in para 5 that, “(a) Briefly stated, the abhorrent Godhra incident occurred in the morning of 27.2.2002, wherein Kar-sevaks travelling in Sabarmati Express train, returning from Ayodhya, were allegedly attacked and coaches of the train were set on fire at Godhra Railway Station at around 7.45 a.m., as a result of which, 58 persons were charred to death and 59th victim succumbed to the burn injuries on 3.4.2002. As aftermath of that incident, there was unrest and violence all across the State of Gujarat. In that process – a violent mob attacked the inhabitants of Gulberg Society, Meghaninagar, killing 69 persons at the stated location including the husband of appellant – Zakia Ahsan Jafri, who had unsuccessfully attempted to dissuade the mob. In connection with this incident, a crime was registered at “Meghaninagar Police Station” being CR No. 67/2002. Multiple chargesheets were filed against the concerned accused and the case was committed to Sessions.
(b) Since there was widespread violence bordering on failure of the State machinery to prevent and control the same including to arrest all the perpetrators of the crime and undertake fair investigation, the National Human Rights Commission (for short, “the NHRC”) filed a writ petition before this Court being W.P.(Crl.) No. 109/2003. In that writ petition, the Court appointed Mr. Harish Salve, learned senior counsel as Amicus Curiae vide order dated 9.10.2003.”
It cannot be glossed over that the Bench minces no words to hold in para 34 that, “We find force in the argument of the respondent-State that the testimony of Mr. Sanjiv Bhatt, Mr. Haren Pandya and also of Mr. 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 eye-witnesses 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, aftermath thorough investigation by the SIT.”
More to the point, the Bench then further hastens to add in para 35 that, “We hasten to add that it is only because of the ultra-sensational revelation projected by Mr. Sanjiv Bhatt and Mr. Haren Pandya, who unabashedly claimed to be privy to the utterances made by the then Chief Minister in an official meeting, the constitutional functionaries and this Court was required to move into action taking serious note of the same. But, after thorough investigation by the SIT, the falsity of such claim has been fully exposed on the basis of credible indisputable materials collated by the SIT during the investigation in that regard.”
While applauding the role of the SIT, the Bench then noted in para 36 that, “Besides exposing the falsity of the claims of these two persons, the SIT has been able to collate materials indicative of the amount of hard work and planning of the concerned State functionaries in their attempt to control the spontaneous evolving situation of mass violence across the State of Gujarat, despite the handicap of administration including the inadequate State police force required to be replenished with central forces/Army, which were called without loss of time and the repeated appeals made by the then Chief Minister publicly to maintain peace.”
While setting the record straight, the Bench observes in para 37 that, “Realizing the difficulty in pursuing the stated allegations [Nos. (i) and (iv)], the appellant has been now advised not to pursue the same and in the written note [reproduced in paragraph 6(www)] filed after the conclusion of hearing, confirmed that statement. The learned counsel for the appellant did not contend before this Court that a larger conspiracy emanated from the meeting of 27.2.2002; and that, therefore, had made no reference to this meeting in this appeal during arguments at all. As aforesaid, we are of the considered opinion that the enquiry to be made in this case is essentially regarding the allegations of larger criminal conspiracy at the highest level. That itself has, now, in a way, been abandoned by the appellant in this appeal. It must follow that no other aspect needs to be examined in this appeal as the finding of the Magistrate and of the High Court in that regard, is being allowed to become final.”
As we see, the Bench then states in para 38 that, “It is in this context the learned counsel for the SIT had urged that the appellant has been changing goalpost at every stage of the proceedings before different Courts. It is seen that the allegation of larger criminal conspiracy at the highest level spelt out in the complaint and protest petition, was in reference to the sensational revelation made by Mr. Sanjeev Bhatt and Mr. Haren Pandya, the falsity whereof has been exposed by the SIT. As a result, now the appellant is pursuing the same allegation by relying on so-called undisputed extra-judicial confessions recorded in Tehelka tapes on the specious plea that there can be no direct evidence regarding larger conspiracy. Hence, in this appeal, the entire focus of the appellant has been to highlight the so-called undisputed extra judicial confessions recorded in Tehelka tapes to be read with the inaction of the officials demonstrable from the undisputed official documents to establish a larger conspiracy and which according to the appellant, has not been enquired into by the SIT. The stated undisputed evidence, according to the appellant, points to a larger conspiracy, which appears to involve bureaucrats, politicians, public prosecutors, VHP, RSS, Bajrang Dal and members of the State political establishment.”
Be it noted, the Bench then expounds in para 39 that, “This argument, we unhesitatingly opine, is nothing short of red herring. In that, emphasis has been placed on evidence such as SIB messages. What has been conveniently glossed over is that, to make out a case of larger criminal conspiracy, it is essential to establish a link indicative of meeting of minds of the concerned persons for commission of the crime(s), committed during the relevant period across the State including the heart-rending episode unfolded at Godhra on 27.2.2002, in which large number of Kar-sevaks were burnt alive in train bogies. No such link is forthcoming, much less had been unraveled and established in any of the nine (9) cases investigated by the same SIT under the directions of this Court. Accepting the argument of the appellant would require us to question the wisdom of this Court and to hold that even the incident at Godhra unfolded on 27.2.2002 was also the outcome of alleged larger criminal conspiracy. Such a view would be preposterous.”
Quite significantly, the Bench then enunciates in para 40 that, “In that, the Godhra incident has been fully enquired into by the SIT to the satisfaction of this Court and even the trial had ended in recording conviction against the concerned accused (belonging to minority community). As to how the Godhra incident unfolded, has been analyzed by the High Court in confirmation appeals in Godhra train case about the acts of planning and commission by a group of persons. Suffice it to observe that forwarding of messages by the intelligence agencies including inaction or lack of effective measures taken by the concerned officials per se does not imply criminal conspiracy on the part of the State authorities. As stated earlier, absent tangible material suggestive of a chain or any perceivable link or connection with the unfolding of mass violence across the State, it is unfathomable as to how the SIT could have still recommended sending the alleged offenders for trial, much less would obligate the concerned Court to take cognizance on such unfounded allegations. There is no material forthcoming to indicate that there was failure on the part of intelligence to collect information and it was a deliberate act on the part of the State Government authorities. Whereas, the allegation is that intelligence inputs were collected and disseminated to concerned authorities, but not acted upon by the concerned officials in right earnest.”
It is worth noting that the Bench then propounds in para 42 that, “At the cost of repetition, be it noted that the SIT had not found any conspiracy for linking the separate incidents of mass violence across the State during the investigation of nine (9) separate crimes including the Godhra train incident, dealt with by the SIT under the strict vigil and supervision of this Court and ably assisted by the learned Amicus Curiae playing the role of devil’s advocate. Whereas, the messages generated by SIB from time to time even before 27.2.2002, in fact would go to show that the concerned officials were vigilant, but the situation as evolved post Godhra incident, was unparalleled and had overrun the State administration.”
It deserves mentioning that the Bench then notes in para 43 that, “In any case, inaction or failure of some officials of one section of the State administration cannot be the basis to infer a preplanned criminal conspiracy by the authorities of the State Government or to term it as a State sponsored crime (violence) against the minority community. The SIT had noted that inaction and negligence of the erring officials has been taken note of at the appropriate level including by initiating departmental action against them. Such inaction or negligence 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 this Court was to enquire into the allegations of larger criminal conspiracy (at the highest level).”
Most remarkably, the Bench minces no words to hold in para 44 that, “Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration. In the enquiry undertaken by the SIT, it had been found that the developments were in quick succession and had overrun the arrangements already in place or for that matter, additional support by calling Army on 28.2.2002 itself besides the curfew imposed in the most disturbed areas of the State. In light of such timely corrective measures taken by the State Government in right earnest and repeated public assurances given by the then Chief Minister that guilty will be punished for their crime(s), and to maintain peace, it would be beyond comprehension of any person of ordinary prudence to bear suspicion about the meeting of minds of named offenders and hatching of conspiracy by the State at the highest level, as alleged, much less grave or strong suspicion as being the quintessence for sending the accused for trial for an offence of criminal conspiracy.”
Most commendably, the Bench then concedes in para 88 that, “While parting, we express our appreciation for the indefatigable work done by the team of SIT officials in the challenging circumstances they had to face and yet, we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat alongwith 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. Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design. 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.”
To be concise, the Bench then holds in para 89 that, “To sum up, we are of the considered opinion that no fault can be found with the approach of the SIT in submitting final report dated 8.2.2012, 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 against the minority community during the relevant period. As aforementioned, the SIT has gone by the logic of falsity of the information or material and including the same remaining uncorroborated. In that, the 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. The SIT had formed its opinion after considering all the materials collated during the investigation. The question of further investigation would have arisen only on the availability of new material/information in connection with the allegation of larger conspiracy at the highest level, which is not forthcoming in this case. Hence, the final report, as submitted by the SIT, ought to be accepted as it is, without doing anything more.”
In addition, the Bench then observes in para 91 that, “After cogitating over the matter, we uphold the decision of the Magistrate in accepting the stated final report dated 8.2.2012 submitted by the SIT, as it is and rejecting the protest petition filed by the appellant. We do not countenance the submission of the appellant regarding infraction of rule of law in the matter of investigation and the approach of the Magistrate and the High Court in dealing with the final report.”
Finally, the Bench then concludes by holding in para 92 that, “Accordingly, we hold that this appeal is devoid of merits and resultantly, deserves to be dismissed in the aforementioned terms. We order accordingly. Pending applications, if any, shall stand disposed of accordingly.”
In conclusion, we thus see that the Supreme Court on merits sought to dismiss the plea of Zakia Jafri against SIT clean chit to Narendra Modi in 2002 Gujarat riots larger conspiracy case and gave sound reasons for doing so. We have touched briefly only on some of them. This judgment fully, firmly and finally vindicates that PM Narendra Modi had no role of any kind in the 2002 riots and he had in fact tried his best to do all that he could to ensure that no innocent is killed. We have to respect it and so also the Opposition especially those who were hell bent on proving Modi’s involvement in the riots must come to terms with what the Apex Court has held so very commendably, cogently and convincingly! No denying it!