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On October 26,  the Supreme Court began hearing a Special Leave Petition (SLP) filed by one Zakia Ahsan Naseem, challenging the clean chit given to PM Modi in the Gujarat riots case. Zakia is the widow of Congress MP Ehsan Jafri who was murdered in the Gulberg Society massacre that took place on February 28, 2002 in Gujarat.  An FIR relating to the incident was registered with Meghaninagar Police Station, Ahmedabad. On filing of the charge-sheet, the case was committed to a Sessions Court at Ahmedabad.

The case came up before a bench of Justices Khanwilkar, Dinesh Maheswari and CT Ravi Kumar.  Appearing for Zakia, Kapil Sibal, Senior Advocate, argued that the matter pertains to the riots at Gujarat in 2002, where several people were killed. Several transfer petitions were filed, however, this court was pleased to stay them, whereas, an SIT was constituted and Jafri filed a complaint before the DGP.

Sibal argued, "the petitioner is concerned with the grievance that arises from Special Investigation Team’s (SIT) closure report. The SIT did not look at several facts presented to them in the closure report."

Sibal vehemently argued that, "The purpose of the SIT was that no person who is guilty will go unpunished. These were the materials investigated by the SIT. These were the materials where SC asked them to go to Magistrate. How can it not be considered?"

Sibal continued his arguments on October 27, with the Supreme Court asking him not to bring in ideology while arguing this case.

The bench further told Sibal that investigation conducted by the Special Investigation Team (SIT) had the court's mandate and further asked him not to generalise it.

Justice Khanwilkar, speaking of the SIT investigation, said,  "If you have a point to make say they could have done something that they did not do, don't say they did not do anything."  

Sr. Adv. Mukul Rohatgi appearing for the SIT however said that it had done a thorough investigation and he will demonstrate it to the court.

The bench at this point noted that Sibal wasn't reading allegations against the then Chief Minister (CM) of Gujarat, Narendra Modi, and that every allegation is directed at the CM. It further noted that if not for these allegations nothing remains in the case.

Replying to this, Sibal said "I don’t want to be in a position where I’m made to argue something I don’t want to. I am not interested in dealing with how individuals reacted but the manner in which state reacted.”

The matter has now been adjourned to be heard on Nov 11.

Brief Background

In the aftermath of the Godhra incident on February 27, 2002, violence racked 14 districts of Gujarat, leading to the loss of thousands of lives and also registration of various complaints in different parts of the State.

National Human Rights Commission, New Delhi (NHRC), gave its interim report between March 1, 2002 to July, 2002 and Shri K.P.S. Gill, in the month of May, 2002, was sent by the Central Government to quell the disturbance, which continued for a long time.

Citizens for Justice and Peace preferred a petition before the Supreme Court, seeking the transfer of investigation of major incidents to the Central Bureau of Investigation (CBI), on the basis of the report of the NHRC. However, since the accused in ‘Best Bakery Case’ was by the Sessions Court, Vadodara, in 2003, the NHRC filed a petition before the Supreme Court for retrial and transfer of the case from Gujarat.

In November, 2003, the Supreme Court stayed 8 major trials, i.e. (1) Godhra Train Carnage Case, (2) Sardarpura, (3) Gulberg Society Case, Meghaninagar, (4) Naroda Patiya case, (5) Dipda Darwaja Case, (6) Oad Massacre Matter, Anand, (7) British Nationals’ killing case and (8) Naroda Village case.

Thereafter in April, 2004, the top court transferred the trial of ‘Best Bakery Case’ to Mumbai, quashing and setting aside the judgment and order of Gujarat High Court.

On March 26, 2008 a Special Investigation Team (SIT) was constituted consisting of (1) Shri R.K. Raghavan, Retd. Director of CBI,(2) Shri C.B. Satpathy, Retd. D.G., Director, Uttar Pradesh, Police College, Moradabad, (3)Ms. Geeta Johri, (4) Shri Shivanand Jha, (5) Shri Ashish Bhatia.

The Supreme Court directed the state of Gujarat to provide necessary infrastructure and resources for effective working of the SIT. The SIT was directed to furnish their report to the Supreme Court, on completion of the investigation in a period of 3 months. The Supreme Court further noted that on submission of the report, further action was to be directed by it. This arrangement was permitted in all the cases.

In 2009, the Supreme Court directed the SIT to continue the monitoring the investigation till the completion of the trial in the cases.

The SIT was directed to complete the pending investigations and was also permitted further investigation, if any required in the course of trial.

It was permitted to file supplementary charge-sheets in case it found further material or identified other accused persons.

The Chairman of the SIT was directed to keep track of the progress of the trials and to submit quarterly reports to the Supreme Court with a specific permission to move the Court for any further direction, if, found necessary. The Court also dealt with the issue of witness protection at length.

Complaint of Zakia Naseem Ahsan

Zakia Naseem Ahsan filed a complaint on June 8, 2006 before the Addl. Director General of Police, (ADGP) against 62 persons including politicians , bureaucrats and police officers alleging that these 62 persons aided and abated the co-accused involved in Gujarat Riots, which shook the entire country between February to May, 2002.

According to the complaint there was a  deliberate and intentional failure on the part of the state government to protect the lives and properties of the innocent citizens of the country through a well-executed conspiracy amongst the accused named in the said complaint, resulting in the breakdown of the constitutional governance in the state.

The complaint further alleged that the mass carnage was orchestrated by powerful people  using state machinery and compromising and thwarting law and order and that there had also been attempts to pressurise and intimidate victims and survivors who belong to a marginalised community.

The complaint alleged that each of the 62 people accused were engaged in subversion of law and order and deliberate attempt to breakdown of legal machinery.

Zakia, in her complaint said that she had substantiated her version with certain statements of some of the officers and also has sought to rely upon the documentary evidences to prove that many of the officers have grossly shown dereliction in discharging their duties and other Senior Executives had connived, raising a serious question mark on the bona fide of the government.

The complaint names 13 persons, as witnesses, and sought for filing an FIR for offences punishable under Section 302 read with Section 120(B), Section 193 read with Section 114 and Sections 185, 153A, 186, 187 of the Indian Penal Code and under Section 6 of the Commission of Inquiry Act and also under various provisions of the Gujarat Police Act and the Human Rights Act, 1991.

However, as the police declined to take cognizance of this complaint, she filed a writ petition before the Gujarat High Court seeking issuance of direction to the Director General of Police, Gujarat, to register this complaint.

The High Court in its judgment concluded that since an alternate remedy under Section 190 read with Section 200 of the Criminal Procedure Code was available to her, the writ petition was not maintainable.

The writ petition was dismissed with an observation that if she had got certain additional material against some persons accused in her complaint, it was open to her to approach the investigating agency, requesting further investigation, or, alternatively she could herself approach the Court concerned for further investigation in terms of Section 173(8) of the Criminal Procedure Code.

Zakia thereafter approached the Supreme Court through an SLP challenging the order of the Gujarat High Court.

The Supreme Court on March 3, 2008 appointed an amicus curiae to assist the Court.

Through another order, the Court directed an SIT to look into Zakia’s allegations.

A.K. Malhotra, former D.I.G. (C.B.I.) and one of the members of the SIT, examined witnesses and perused documents before filing a report on May, 12, 2010.

In his report, Malhotra recommended further investigation under Section 173(8) of the Code against certain police officials and a Minister in the state cabinet.

Further investigation was conducted and a report dated November 17, 2010, was submitted by the SIT.

On November 23, 2010, Sr. Adv. Raju Ramachandran and Adv. Gaurav Agarwal, replaced the previous Amicus Curiae, who expressed his unwillingness to continue.

On January 20, 2011, a preliminary note was submitted by the Amicus Curiae based on which whereon, the SIT was directed to submit its report, and if necessary carry out further investigation in light of the observations made in the amicus curiae’s note.

The SIT conducted further investigation in the Gulberg Society case, and submitted a report on April 24, 2011.

A copy of the report of the Chairman of SIT was made available to the Amicus Curiae.

He was directed by the court examine the report; analyse and have his own independent assessment of the statements of the witnesses recorded by the SIT and submit his comments on them.

He was also granted permission to interact with any of the witnesses, who have been examined by the SIT, including the police officers. He was directed to file a report based on the material on record, and in case any offence is made out against any person, he was directed to mention the same in his report.

The amicus curiae filed his report on July 25, 2011 and based on his report the Supreme Court concluded that once the investigation has been conducted and completed by the SIT, there is no course available in law, except to forward the final report under Section 173 (2) of the Code to the Special Court to take cognisance of the alleged offences. 

The Supreme Court further held that in cases monitored by the Supreme Court, it is concerned with ensuring proper and honest performance of its duty by the investigating agency and not with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge-sheet in the competent Court, according to the ordinary procedure prescribed by law.

Accordingly, the Chairman of the SIT was directed to forward a final report, along with the entire material collected by the SIT, to the Special Court which had taken cognisance  as required under Section 173(2) of the Code.

It was further directed that before submission of its report, the SIT may, if needed, obtain copies of the report filed by amicus curiae. 

The Special Court was directed to deal with the matter in accordance with law relating to the trial of the accused, named in the report/charge-sheet, including matters falling within the ambit and scope of Section 173(8) of the Code.

The Supreme Court also directed that if for any stated reason the SIT concluded in its report,  that there is no sufficient evidence or reasonable grounds for proceeding against any person named in the complaint, dated June 8, 2006, before taking a final decision on such ‘closure’ report, the Special Court will have to issue notice to Zakia and give her copies of the statements of the witnesses, other related documents and the investigation report strictly in accordance with law.

Lead up to current proceedings before the Supreme Court

Pursuant to these directions of the Supreme Court, the SIT submitted its closure report before the Metropolitan Magistrate, Ahmedabad.

Zakia filed another SLP before the Supreme Court stating that she was unable to file an appropriate protest petition against the closure report filed by the SIT.

She further pleaded that the documents tiill the investigation report submitted by A.K. Malhotra before the Apex Court along with the documents referred to, therein, were supplied to her and no further documents were given to her. 

She pleaded that in the absence of such report, it would be impossible for her to file her objections to the closure report submitted by the SIT. The Supreme Court directed the Magistrate to supply the copies of the report and further permitted her to prefer a protest petition on getting the copies within a period of 8 weeks from the date of getting copies of the report.

The Metropolitan Magistrate, after extensively hearing the parties, accepted the closure report, denying to lodge the complaint on December 16, 2013 and thereby, Zakia’s protest petition was not entertained.

Aggrieved by the order, Zakia filed a revision petition before the Gujarat High Court pleading that the magistrate’s order is grossly illegal and deserves interference by the court under Section 482 CrPC.

She further stated that it is necessary for the Court to examine, whether the material produced had given rise to reasonable case to take cognisance and it was not necessary for the Court to go into the veracity or truthfulness of the facts to conclude that the same would lead to conviction of the person arraigned as accused or not.

She also argued that against each person named in the complaint, separate material had been placed for establishing the alleged act of conspiracy and abetment in a heinous crime.

She pleaded that the order of the Supreme Court has not been understood in the appropriate perspective by the Magistrate Court and the magistrate has utterly failed in exercising his jurisdiction.

Importantly, she stated that the "magistrate has also has chosen not to exercise his powers and was bogged-down by the fact that the Supreme Court had monitored the investigation of SIT."

On October 6, 2017 the High Court held that the revision petition deserves to succeed partly and the order of the Metropolitan Magistrate dated December 16, 2013 deserves interference to the extent the Magistrate Court self-limited itself to not having powers to order further investigation.

The High Court further held that it is the reiterative conclusion on the powers of further investigation that has led the High Court to interfere to this limited extent only.

The High Court confirmed the rest of the order stating that the same does not warrant any interference. 

The court noted that in the wake of the completion of the Sessions Trial of ‘Gulberg Society’, by the specially designated Court and pendency of appeal before the High Court, no actual purpose would be served by remanding the matter on this limited aspect.

It was held that however, to ensure that this incorrect perception, which results into error of law in the magistrate’s order, does not leave the parties remedy-less, instead of remanding this matter for this limited cause, it will be desirous  for Zakia to agitate the issue of further investigation.

The High Court granted Zakia the liberty to raise the issue of further investigation before the magistrate to that limited extent.

Zakia supported by an NGO called Citizens for Justice and Peace (CJP) filed an SLP in 2018 against this order of the High Court. According to CJP’s website, the SLP had been filed before the Supreme Court in 2018 CJP seeking clarification of "gross anomalies in judgements of both lower courts (Magistrate and Gujarat High Court)" in both law and facts.

The website also claims that through this SLP, they have argued how, the order of the Gujarat High Court records that the Magistrate has considered the Closure Report of the SIT and found no substance in Zakia’s complaint led on June 8, 2006.

It is their case that the Magistrate has wrongly held that it was beyond the scope of his powers to direct further investigation. They have also contended that vital issues were placed before the Magistrate, detailing their case and making out a case of criminal conspiracy and abetment, however the same have not been considered by the Magistrate or the High Court.

Cause Title: Zakia Ahsan Jafri and Anr. Vs. The State of Gujarat and Anr.