Lawyers

Zakia lawyer says ‘obvious’ proof of collaboration, SC factors to prices filed by SIT

The Supreme Court on Tuesday asked Zakia Jafri, wife of Congress MP Ahsan Jafri, who was killed during the 2002 post-Godhra riots in Gujarat, how she could say the special investigation team (SIT) appointed by the apex court “collaborated” with the accused when the team had filed chargesheets that ended in convictions in riot-related cases.

“You are attacking the manner of investigation done by SIT. It is the same SIT that had filed chargesheet in other cases, and they were convicted. No such grievance in those proceedings,” a bench of Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar told senior advocate Kapil Sibal, who appeared for Jafri.

The remarks came when Sibal said there is “glaring evidence of collaboration. The political class became collaborators. This is the stark story about collaboration with accused.”

The bench is hearing Jafri’s appeal against the Gujarat High Court order upholding the Metropolitan Magistrate court’s decision to accept the SIT’s closure report, which gave a clean chit to then Gujarat chief minister Narendra Modi and others in riots-related cases.

The bench said it can understand if Sibal says the police collaborated at the ground level. But “how can you say that about SIT appointed by the Court? Is that your argument,” Justice Khanwilkar asked.

“I am sorry My Lord, but that is my argument,” Sibal reiterated.

“Are you saying SIT had motives? We can understand if you say there was some omission on part of SIT. But can you say SIT collaborated,” the bench asked.

“That is what appears. Why did SIT not take statements of people in Tehelka (sting) tapes,” Sibal asked.

To this, the bench responded, “That alone cannot be the basis for motives. The SIT might have explanation.”

The court told Sibal that he can argue there were things to be done by SIT, but it was not done.

“OK, let me pitch it lower. SIT did not examine people who it should have. It was prosecuting some but also did not prosecute some whom it should have, for reasons best known to it,” the senior counsel said.

“Maybe SIT has offered some explanation but you might have missed it in the huge pile of papers,” the bench responded.

Sibal then referred to the report of the National Human Rights Commission (NHRC) and said the SIT never took the statement of any of the Commission members. The NHRC, he pointed out, had recommended that certain critical cases should be entrusted to CBI but this was not accepted by the State, and eventually they were entrusted to the SIT.

Sibal said there was a failure of intelligence, and although Gujarat had been constantly in communication with Uttar Pradesh regarding kar sevaks travelling out of Gujarat there was hardly any intelligence about return journeys.

Justice Khanwilkar said it was due to all these factors that the SIT was appointed. “It was taken into account by SC, therefore (the) SIT. The collaboration is by the officials, not by SIT,” he told Sibal.

Sibal referred to instances of alleged collaboration between the prosecution and even the defence lawyers and said it was a “farce” of a prosecution. “If the defence collaborated with the Public Prosecutor, then why have a prosecution? When I said collaborated, it was in this sense. Ideally, what happened, the poor victims knew they had no choice,” he said.

Sibal said what happened was not with respect to one particular incident. “It is that a communal upsurge was not effectively prevented and later the people responsible were not effectively prosecuted. That had to be brought to light by an agency (SIT) appointed by your lordship,” he submitted.

The counsel referred to a letter by former Gujarat HC judge, Justice Akbar Divecha, about mobs setting fire to his apartment. Justice Divecha, Sibal told the court, said that no protection was given to him and that neither his statement nor that of the fire brigade was recorded.

Sibal contended that all this material was available in 2002 itself. “Why did the SIT not act on it without even a complaint made by Zakia?”

The NHRC report, he said, was part of its statutory obligation. The state government should have given it the kind of credence it deserved and should have acted, but it chose not to, he argued.

There were also some remarks by the Election Commission, which went to see if the situation was conducive for elections and concluded it was not, he submitted. The EC’s statement was also not taken, Sibal said, adding that reports of the National Minority Commission and other such agencies were also not looked at.

Sibal said, “Everybody ignored the hate crimes — the police, the magistrate (before whom the closure report was filed), the HC (which upheld the Magistrate’s decision to accept the closure report), the SIT, everybody.”

“When contemporaneous evidence is available by statutory and parliamentary committees, why was it not accessed by the SIT,” he asked.

Sibal also said that sometimes witnesses are offered money and referred to the case of Zahira Sheikh and said adding it needs to be examined if it happened in this case too.

The arguments remained inconclusive and will continue Wednesday.

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