Zakia Jafri #12: Petitioners Argue Magistrate and SIT Failed to Consider Evidence of Conspiracy

On December 7th, a three-judge Bench comprising Justices Khanwilkar, Maheshwari and Ravikumar began the 12th day of final hearings in a petition filed by Mrs. Zakia Jafri challenging the SIT’s closure report in the Gujarat Riots case. Mrs. Jafri is the wife of Congress MP Mr. Ehsaan Jafri, who was killed in the Gulberg Society massacre. Mrs. Jafri’s co-petitioner, Teesta Setalvad is the founder of NGO Citizens for Justice and Peace. Read more about the case here.

Commission of Inquiry Report Findings

Today, Solicitor General Tushar Mehta began by reading from the report submitted by the commission of inquiry constituted by the Gujarat government following the Godhra train burning. The commission was led by a former Supreme Court (SC) judge and was tasked with determining the preventative steps taken by the state during the riots. 

In their report, the commission found that the police had taken strong measures to prevent further violence. Mr. Mehta argued, based on the reports findings, that the police and the government ‘…did what they could do under the circumstances’ and were found to be discharging their duties. Mr. Mehta made this argument in response to the contention that the state did not take any steps to curb the violence. 

Failure of the Magistrate and SIT to Investigate Into the Offences on Record

Senior Advocate Kapil Sibal, on behalf of Zakia Jafri, argued that the the Court’s jurisdiction was limited to the jurisdiction exercised by the Magistrate when considering Ms. Jafri’s complaint. Mr. Sibal stated that he had only relied upon undisputed facts and material that was in the possession of the SIT because the Court’s jurisdiction did not allow them to go into findings of fact. Whereas the findings of a commission of inquiry are inadmissible because it is not a court.

Based on this material, Mr. Sibal argued that there was a strong suspicion that offences were committed and no magistrate could have come to any other conclusion. If such a suspicion exists, the Magistrate is ‘duty bound’ to initiate investigation proceedings into the offence. 

However, Mr. Sibal argued that the Magistrate had treated Mrs. Jafri’s protest petition like a private complaint as opposed to a piece of information that required further investigation. The Magistrate also only considered the events of the Gulberg Society massacre despite Mrs. Jafri’s petition being independent of Gulberg Society, tying together multiple instances of communal violence during the Gujarat Riots.

Mr. Sibal quoted the Court’s judgment from September 2012, sending Mrs. Jafri’s petition to be heard by the Magistrate. In their judgment the Court directed that all the material in the SIT’s possession was to be considered by the Magistrate, not just the material surrounding Gulberg Society.

Confessions from the Tehelka tapes that were in the possession of the SIT were also read out in Court. Mr Sibal argued that despite possessing materials that directly related to the commission of offences, the SIT failed to prosecute many of the accused whose extra-judicial confessions were recorded in the tapes. If there was a fair investigation, Mr. Sibal said they would’ve been taken into custody. 

The Bench will continue to hear Mr. Sibal on December 8th.