The prayer in the historic Zakiya Ahsan Jaffri and
Citizens for Justice and Peace (CJP) petition (SLP No. 1088/2008) in
the Supreme Court was simple: directions for the registration of a
criminal complaint – a first information report (FIR) – against
Narendra Modi and 61others on allegations of a carefully
executed conspiracy to commit mass murder, subvert the process of
justice and destroy crucial evidence.
This criminal complaint provided a unique paradigm
hitherto untraced and untested in the context of mass communal
violence. It laid out grounds for charges of a statewide criminal
conspiracy to commit mass murder and prevent the law and order
machinery and the administration from performing their legal functions
(violating both the Indian Constitution and criminal law), traced the
acts of subversion of the legally guaranteed process of obtaining
redressal and justice and gave proof of the destruction of crucial
documentary and other evidence.
In a nutshell, it was the first criminal complaint
in post-independence Indian jurisprudence that sought to construct a
chain of command responsibility behind the perpetrated carnage in at
least 14 of Gujarat’s 25 districts in 2002 that had brutally claimed
2,500 innocent Muslim lives.
The complaint was first sought to be filed in June
2006 with the then director general of police, PC Pande. He was (and
still is) the man accused of gross dereliction of duty as police
commissioner of Ahmedabad in 2002. Despite this, within four years’
time he was elevated to the post of the most powerful policeman in the
state. On his reluctance to register the complaint, a petition was
filed in the high court of Gujarat, which was rejected in November
2007. The petitioners then appealed to the Supreme Court and on
September 12, 2011 the apex body directed that a magistrate’s court
assess whether a criminal case is made out or not in this unique
complaint which for the first time held those in power during a mass
communal carnage to account.
Earlier, while issuing notice to the Gujarat
government in March 2008, the Supreme Court also appointed an amicus
curiae to assist the court. In that historic order, the court had
observed: “The issue under consideration is of vital importance in the
administration of criminal justice.” The court had also raised the
issue of what course of action was open to a citizen who, being in the
knowledge of the commission of serious offences, was not being
entertained by the police.
A year later, in April 2009, the apex court handed
over the complaint dated June 8, 2006 to the Special Investigation
Team (SIT), directing it to also “look into the matter and take steps
required in law”. (In response to a long pending petition filed by CJP
secretary Teesta Setalvad in 2002, the SIT had been appointed to
further investigate nine crucial cases that had been shoddily
investigated by the Gujarat police.)
A proper interpretation of the Supreme Court’s
order to “take steps required in law” meant the immediate registration
of an FIR and a full-fledged investigation thereafter. But SIT member
and investigating officer AK Malhotra, guided no doubt by the chairman
RK Raghavan, chose to merely conduct a preliminary inquiry that has
questionable status under criminal law and accepted procedure. A
preliminary inquiry precedes the registration of an FIR of any crime.
Thus the report Malhotra submitted to the Supreme Court of India on
May 12, 2010 was the outcome of his preliminary inquiry to which
Raghavan added his own comments.
Having chosen neither to register nor to recommend
the registration of an FIR, this investigation thereafter took an even
more curious course. Based on an obvious leak of what was meant for
the Supreme Court only, on December 3, 2010, the date of the Supreme
Court hearing in the Gujarat 2002 matters, The Times of
India published a front-page story leaking this report and
claiming that the investigating agency had given Modi a “clean chit”.
A few weeks prior to this media leak, in October 2010, amicus Prashant
Bhushan had recused himself from this sensitive case after the state
of Gujarat alleged (several months after the inquiry was over) that
Bhushan had preconceived notions of the 2002 carnage. Raju
Ramachandran was formally brought in as amicus curiae on November 23,
2010.
A day before the court hearing on January 21, 2011,
the new amicus submitted his first, interim, report to the court. Two
months later, on March 15, 2011, observing that the SIT’s “inferences
do not match the evidence”, the court directed the agency to
investigate further under Section 173(8) of the Code of Criminal
Procedure (CrPC).
After the SIT submitted a report of its further
investigation to the apex court in April 2011 and due, arguably, to
the irregularities and lacunae evident in the investigation conducted
by the SIT, the Supreme Court on May 5, 2011 directed the amicus Raju
Ramachandran to independently assess the evidence gathered by
the SIT and give his independent assessment to the court. The
amicus submitted his report on July 25, 2011.
In the interim, there was to be more unexpected
drama. Alleging that the SIT was determined to discredit his evidence,
serving IPS officer Sanjiv Bhatt had filed an affidavit directly
before the apex court on April 14, 2011. Bhatt alleged hostility and
intimidation by the agency during the recording of his statement under
Section 161 of the CrPC.
As secretary, CJP, Teesta Setalvad had her own
unusual experience while giving her statement under Section 161 during
the further investigation. When she sought to place on record the fact
that crucial documentary evidence, including case diaries and police
control room records, had been destroyed, Malhotra assured her that
(in an inexplicable turnaround) former Ahmedabad police commissioner
PC Pande had now placed 3,500 pages of scanned police control room
records before the SIT. Shocked by this revelation, she wrote to the
SIT, pointing out Pande’s contradictory stand, and urged the SIT to,
if nothing else, prosecute him for first concealing and thereafter
revealing evidence (an offence under criminal law) (see box,
‘Destroyed records resurface’).
Following its further investigation, which included
the recording of statements under Section 161 of the CrPC, the SIT
finally filed a closure report before the magistrate on February 8,
2012, five months after the Supreme Court had, in its final order (on
September 12, 2011), ruled that the matter be proceeded with before a
magistrate under Section 173(2) of the code.
Clearly, the SIT was required to reassess its own
investigation in the wake of Ramachandran’s reports to the Supreme
Court. Having done that, it could have filed a charge sheet for
prosecuting all or some of the accused. Instead, it concluded that no
criminal offences are made out and filed a closure report. It took the
SIT five months to reiterate its “clean chit” stance.
The Special Investigation Team, appointed by the
Supreme Court to investigate the petition’s prayer to register an FIR
against Narendra Modi and 61 others, bitterly contested the right of
the complainant, granted under law and through several judgements of
the high courts and the Supreme Court, to gain access to the SIT’s
closure report and documents collected in evidence. After a bitter
battle before the magistrate, MS Bhatt, between February and April
2012, on April 10, 2012 the magistrate directed that the complainant
be given a complete set of documents within a month. On May 7, 2012
the closure report and documents were finally supplied to the
complainant. But critical documents, especially the report of the
initial preliminary inquiry and the chairman’s comments based on which
the amicus curiae arrived at his conclusions, have been withheld from
the magistrate’s court and also not been given to the complainant
(see box,‘Missing records’).
A subtext of this courtroom drama has been the
aggressive desperation of the Bharatiya Janata Party (BJP) at both
national and state levels to insist, even bully the media into
accepting, that the Supreme Court order of September 2011 meant a
closure of all allegations and thus a clean chit to Modi. The final
disclosure of Ramachandran’s report this month has finally put an end
to that misinformation campaign. What CJP had said in September 2011
and repeats today is that the matter is still very much open for
judicial review. The legal battle against Modi will surge ahead.
Until these questions are resolved, Communalism Combat
brings to its readers the full text of amicus curiae Raju
Ramachandran’s reports as also excerpts and scrutiny of the SIT’s
preliminary report and the chairman’s comments (which were accessed
independently) and the final closure report with all the inherent
contradictions.
