Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, dismissed Zakia Jafris plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 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 of Gujarat against the minority community.

Brief Background

In February 2002, 59 people were killed after, Kar-sevaks returning from Ayodhya, were allegedly attacked and coaches of Sabarmati Express train were set on fire. As an aftermath, there was unrest and violence all across the State of Gujarat that killed thousands of people. Zakia Jafri, like many others, lost her husband Ehsan Jafri to the 2002 Gujarat riots.

Zakia Jafri, along with Teesta Setalvad, filed a complaint where she mentioned names of 63 persons, who according to her, were involved in larger conspiracy and abetment of the crime resulting in carnage between February, 2002 and May, 2002, that shook the State of Gujarat. This list also mentioned the name of the then Chief Minister of Gujarat and now Prime Minister of India, Narendra Modi. The SIT, in it’s final report dated 08.02.2012, has not found any material indicating larger criminal conspiracy by the persons mentioned in the complaint.

Supreme Court’s Key Observation

  • The riots across the State had taken place spontaneously, immediately after the Godhra Train Carnage. In the investigation done by the SIT in all the nine (9) sets of cases, no material was discovered pointing towards any meeting of minds/conspiracy in the higher echelons of the administration or the political establishment conspired with other persons to cause such riots or for having turned nelson’s eye when the riots had triggered and continued.
  • The testimony of Sanjiv Bhatt, Haren Pandya and 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 eyewitnesses 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.
  • The inaction or failure of some officials of one section of the State administration 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 the Court was to enquire into the allegations of larger criminal conspiracy (at the highest level).

“Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration.”

  • The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State. The linking of such failures is not enough to entertain a suspicion about hatching of criminal conspiracy at the highest level, which requires a concerted effort of all the persons concerned and more importantly, clear evidence about meeting of the minds to accomplish such design, much less of causing and precipitating mass violence across the State.
  • The offence of conspiracy is independent of other offences. It takes place when there is an agreement to do or cause to be done an illegal act, or an act which may not be illegal but by illegal means. The rationale of conspiracy is that the required objective manifestations of dispositions of criminality is provided by the act of agreement. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they will accomplish the unlawful object of the conspiracy.
  • There is no merit in the argument of the appellant that the SIT had failed to collect the call records of the accused persons, not analyzed the available call records and failed to seize the phones of persons involved. The events had unfolded in the year 2002 and the SIT was constituted only in the year 2008 to look into and enquire into the complaint of appellant, dated 8.6.2006. The SIT due to lapse of time, was not in a position to verify the authenticity of the CDs regarding telephone calls and in any case, the call history by itself would not have been sufficient to suspect commission of any offence, much less of hatching larger criminal conspiracy, which was required to be investigated by the SIT.
  • The act of transfer/posting of officials has been after the unfolding of mass violence across the State. It was obviously an administrative matter to address the expediencies of that situation. The Court failed to understand as to how this circumstance can be reckoned as hatching of criminal conspiracy resulting into mass scale violence across the State aftermath Godhra incident. Such conspiracy ought to have preceded the triggering of mass violence.

Appreciating the SIT officials for the indefatigable work done in the challenging circumstances they had to face and coming out with flying colours unscathed, the Court observed that it appeared that a coalesced effort of the disgruntled officials of the State of Gujarat along with 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.

“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.”

[Zakia Ahsan Jafri v. State of Gujarat, 2022 SCC OnLine SC 773, decided on 24.06.2022]

For Petitioner(s) Mr. Kapil Sibal, Sr. Adv. Mr. Mihir Desai, Sr. Adv. Ms. Aparna Bhat, AOR Ms. Karishma Maria, Adv.

For Respondent(s) Mr. Tushar Mehta, SG Mr. Mukul Rohatgi, Sr. Adv. Mr. Maninder Singh, Sr. Adv. Mr. Kanu Agrawal, Adv. Ms. Devanshi Singh, Adv. Mr. Prabhas Bajaj, Adv. Mr. Pranav Saigal, Adv. Mr. Shantnu Sharma, Adv. Mr. Madhav Sinhal, Adv. Ms. Deepanwita Priyanka, AOR

For Intervenor(s) Mr. Aldanish Rein, AOR

Ed. Note: The judgment that was pronounced by Justice AM Khanwilkar, does not clearly mention which of the three judges on the Bench has authored it.

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: Dhiraj Singh Thakur, J. allowed a petition to direct the CBI to take charge of the present case.

The petitioner filed a Habeas Corpus Petition seeking appropriate direction to respondents to produce her son, who went missing in the custody of respondents. Petitioner also prayed for referring the investigation into the matter by the constitution of a Special Investigation Team (SIT) or in the alternative to refer the matter to the Central Bureau of Investigation (CBI).

The petitioner’s son, Shakeel Ahmed, went missing on his way to Zairat at Kaliar Sharief in Roorkie, Uttrakhand under the custody of the respondents. The matter was investigated initially by the appropriate Police Station, as an FIR under Section 364 RPC was filed. The investigating officer recorded the statement of witnesses under Section 161 of CrPC and called the accused persons to the Police Station and interrogated them. However, no fruitful result was obtained pursuant to which, the investigating officer closed the case. The matter was again reopened by the Zonal Police Head Quarter and a Special Investigation Team (SIT) was formed by the Senior Superintendent of Police. However, the SIT also failed to arrive at any conclusion and was clueless about the disappearance of the son of the petitioner.

The respondents contended that the matter if referred to Crime Branch, should also involve the territorial jurisdiction between the two States i.e. the State of Jammu and Kashmir and the State of Uttrakhand.

The High Court allowed the appeal and was of the view that since the investigation would involve the areas beyond the territorial jurisdiction of the State of J&K where the Crime Branch cannot have any jurisdiction, it would be appropriate to refer the matter for investigation to the CBI under Section 364 of RPC. The Court also held that “it cannot be a silent spectator to the disappearance of the son of the petitioner who needs to be recovered and the matter investigated at the earliest.”[Sabza Begum v. State of J&K, 2019 SCC OnLine J&K 666, decided on 08-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The appellant had approached the CIC praying to recognize the Special Investigation Team (SIT) on black money of the Department of Revenue (Ministry of Finance) as a ‘public authority’ within terms of Section 2(h) of the RTI Act, 2005 along with a direction to the authority to appoint a CPIO.

The appellant submitted that clause (h) of Section 2 is clear enough to state that any body or authority constituted by a notification issued by the appropriate government would be a “Public Authority” for the purpose of implementing the RTI Act while placing before the Commission the fact that the SIT was constituted by a notification of the Government of India vide number F. No. 11/2/2009- Ad. E.D. dated 29.05.2014. It being a multi-member body comprising of a Chairman, a Vice-Chairman and 10 other members, the SIT clearly met both the criteria under Section 2(h)(d) of the RTI Act, 2005 namely that it is a “body” for the purpose of the Section and that it had been constituted by the Central Government vide a notification, the appellant contended.

On hearing the contentions, the Commissioner Mr. Bimal Julka observed that it was very clear that the definition of “Public Authority” under Section 2(h) of the RTI Act, 2005 does not prescribe “performance of Public Duty” as one of the criteria for determining if an Authority is “Public Authority” or not, yet performance of such duty by the authority, cannot be undermined to not be considered as an important Public Duty by the SIT which qualifies as a Public Authority as per the tests laid down in the first part to Section 2(h)(d) of the RTI Act.

The Commission finally held that Special Investigation Team on black money is a ‘public authority’ as per the Right to Information Act observing that when a public authority is largely funded by the government and performs the duty of bringing back unaccounted money kept unlawfully in bank accounts abroad, it is undoubtedly performing a public duty and therefore, every citizen of the country has the right to know about its functioning within the Act’s framework and as per its purpose. Accordingly, the authority concerned was directed to appoint a CPIO for SIT. [Venkatesh Nayak v. CPIO & DCIT (OSD),  (Inv. 1), Ministry of Finance, 2017 SCC OnLine CIC 1508, decided on 10.10.2017]