Zakia Jafri #13: Petitioners Argue SIT did not Engage with Arguments on Ignored Evidence

On December 8th, a three-judge Bench comprising Justices Khanwilkar, Maheshwari and Ravikumar completed the 13th 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.

Senior Advocate Mukul Rohatgi, appearing for the SIT, had previously suggested that since Senior Advocate Kapil Sibal, appearing for the petitioners, had refused to argue any claims in relation to Mr. Modi, no foundation for conspiracy remained. Mr. Sibal today argued that the alleged conspiracy did not start from the CM’s 27th February 2002 meeting— the petitioners had made submissions of an arms buildup and targeted hate speech by the VHP starting from much before the meeting. Since the details of the meeting were a disputed fact, Mr. Sibal stated that he had refrained from presenting evidence that he could not prove to the Court without further investigation. 

Today, Mr. Sibal repeated several instances of deliberate omission and findings contrary to fact by the SIT. He responded to the SIT’s argument that re-investigation would harm the rights of the accused to finality in trial. He also responded to the questions raised by the SIT and the Gujarat government about co-petitioner Teesta Setalvad’s locus owing to her character and motives. 

Highlighting Crucial Evidence That The SIT Deliberately Overlooked

The Bench asked Mr. Sibal to specifically point out what evidence was left uninvestigated. Mr. Sibal indicated the SIT’s pattern of relying on the statements of accused persons to exculpate them. He also argued that the SIT had recorded many findings that were contrary to fact. For instance, in relation to the charge of delayed preventive action by the Gujarat police, the SIT found that no violence had taken place in Gulberg before 1pm. Mr. Sibal showed that the SIT record contained FIRs alleging violence filed earlier in the day. 

Mr. Sibal also repeated the importance of journalist Ashish Khetan’s Tehelka Sting Tapes, asking why the SIT had relied on them in other cases, but deemed them unreliable in the conspiracy case. Reading out the SIT’s comment that those recorded had given Khetan ‘spicy statements’ for publishing, Mr. Sibal asked why the SIT was doing the job of defending the accused. He lamented  that the SIT had successfully protected the accused, and now they want the incriminating evidence to be ‘effaced’ from national memory.

Re-Investigation Will Not Affect Rights of Accused to Finality in Proceedings

Mr. Rohatgi had previously argued that a re-investigation would infringe on the accused’s right to finality in proceedings. Mr. Sibal argued today that finality of proceedings is relevant after a trial is conducted. Mrs. Jafri’s case was at a prior stage- her complaint had been dismissed and no trial ever occurred. Mr. Sibal submitted that the right against re-trial is not violated if a person who has been acquitted previously is tried again in light of new evidence. Accordingly, he stated that there was no basis to claim that a re-investigation would be unconstitutional. 

SIT Launched a ‘Diatribe’ Against Petitioners Instead of Addressing Ignored Evidence

Mr. Sibal submitted that the Court’s PIL jurisdiction is not based on misery, but on delivering justice to the marginalised when the State fails to protect them. Mr. Rohatgi was hence wrong to suggest that the Court had only ordered  the SIT to look at Mrs. Jafri’s complaint out of pity for a ‘widow’s misery’. 

Mr. Rohatgi had also previously argued  that  Mrs. Jafri had  misled the Court by  not providing evidence of conspiracy in her depositions in the Gulberg case. The voluminous additions indicated that she had been overtaken by co-petitioner Setalvad for sinister motives. Mr. Sibal submitted that she could not be accused of misleading the Gulberg court as she was a prosecution witness and not an accused in the case. He argued that the evidence was  not raised in her deposition because the claim of conspiracy had not been raised by the prosecution in the Gulberg case. 

Mr. Sibal lamented that the SIT had launched a ‘diatribe’ against the petitioners in these hearings. He suggested that the SIT had diverted attention to co-petitioner Setalvad’s motives and characters to ignore the voluminous evidence presented by Mr. Sibal. He argued that Mrs. Setalvad had provided distressed witnesses with legal guidance, she had not tutored them as Mr. Rohatgi suggested. Mr. Sibal also argued that Mr. Rohatgi and the Gujarat government’s arguments against Ms. Setalvad’s locus depended entirely on the account of Mr. Riyaz Khan. Mr. Sibal described Khan as a disgruntled former employee, suggesting that he could not be a sole basis for determining Ms. Setalvad’s character. 

 

The Bench will hear Mr. Rohatgi’s response to Mr. Sibal’s note on the evidence against the CM and the locus of the petitioners tomorrow (December 9th).