ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & Anr.
Case at a glance
- Decided
- 24 Jun 2022
- Bench
- A M KHANWILKAR, DINESH MAHESHWARI, C T RAVIKUMAR
Provisions considered
- Indian Penal Code, 1860 ss. 114, 120B, 153A, 185, 186, 187, 193, 302
- Commission of Inquiry Act, 1952 s. 6
- Gujarat Police Act, 1951
- Human Rights Act, 1991
- Constitution of India arts. 226, 227, 356
- Code of Criminal Procedure, 1973 ss. 173(8), 200
Key paragraphs
- Para 55. Shri Ashish Bhatia The notification by the State be issued as early as practicable, preferably within ten days. Officers at Sl Nos. 3 to 5 are IG rank officers. Shri Raghavan will be the chairman of the committee and Ms. Geeta Johri shall be…
- Para 99. We are of the opinion that bearing in mind the scheme of Chapter XII of the Code, once the investigation has been conducted and completed by SIT, in terms of the orders passed by this Court from time to time, there is no course…
- Para 1010. Accordingly, we direct the Chairman, SIT to forward a final report, along with the entire material collected by SIT, to the court which had taken cognizance of Crime Report No. 67 of 2002, as required under Section 173(2) of the Code. Before submission of…
Judgment
Criminal Case No.275/2002 arising out of FIR No.46/2002 dated 28.2.2002 of Police Station Bijaypur, titled State v. Patel Rameshbhai Kanjibhai & Ors. pending in the Court of Sessions Judge, Mehsana, Gujarat;
ARISING OUT OF FIR NO.67/2002 DATED 28.2.2002 OF POLICE STATION MEGHANINAGAR: (i)Sessions Case No.152/2002 titled State v. Kailash Lalchand Bhai Dhobi & Ors. pending in the Court of Sessions Judge, Bhadra, Ahmedabad; E F (ii)Criminal Case No.1720/2002 titled State v. Shankarji Hakaji Mali & Ors. pending in the Metropolitan Magistrate Court No.XI, Ahmedabad; (iii)Criminal Case No.296/2003 titled State v. Sandeep alia Sonu Ghunghru Val Valo & Ors. pending in the Metropolitan Magistrate Court No.XI, Ahmedabad; G (iv) Criminal Case No.524/2002 titled State v. Vishal Badrilal Nayee & Ors. pending in the Juvenile Court No.IV, Ahmedabad; H 26 SUPREME COURT REPORTS [2022] 6 S.C.R. (d) In the subsequent order passed in the group of petitions on 17.8.2004, this Court directed that in cases where ‘A’ Summary Report(s) had been filed (around 2000 cases) should be further investigated by the concerned Range Inspector Generals of Police in the State of Gujarat, who should ascertain the correctness or otherwise of such reports. In this appeal, we are not concerned with those cases. (e) As noted earlier, this matter emanates from the complaint filed by appellant – Zakia Ahsan Jafri on 8.6.2006 addressed to the Director General of Police, Gujarat and other high officials including Mr. D.A. Vaghela, P.I., Sector 21 Police Station, opposite Old Sachivalaya, Gandhinagar, the Chief Secretary, State of Gujarat, Sachivalaya, Gandhinagar and the Home Secretary, State of Gujarat, Sachivalaya, Gandhinagar. We shall advert to the contents of this complaint in detail a little later. (f) Broadly stated, in this complaint, appellant – Zakia Ahsan Jafri mentioned names of 63 persons, who according to her, were also involved
ARISING OUT OF FIR NO.100/2002 DATED 28.2.2002 OF POLICE STATION NARODA, AHMEDABAD: (i) Criminal Case No.982/2002 titled State v. Naresh Amarsingh Chhara & Ors. pending in the Metropolitan Magistrate Court No.XI, Ahmedabad, and (ii) Criminal Case No.1662/2002 titled State v. Padmendra Singh & Ors. pending in the Metropolitan Magistrate Court No.XI, Ahmedabad. Learned counsel for the petitioner in TP(Crl) Nos.194-202/2003 prays for and is permitted to amend the petitions for including the Sessions trial arising out of CR No.23/2002 and CR No.27/ 2002 (ODE Massacre). However, further trial in those cases shall remain stayed. List on 19th December, 2003. SLP(Cr) 4409/2003. Issue notice. Ms.H. Wahi, learned counsel accepts notice. She prays for and is allowed two weeks’ time to file reply. In the meantime, further trial in Sessions Case No.180/2002 shall remain stayed. List along with WP(Crl) No.109/2003 etc. …..” (emphasis supplied) ZAKIA AHSAN JAFRI v.
STATE OF GUJARAT & ANR. 27 in larger conspiracy and abetment of the crime resulting in carnage between February, 2002 and May, 2002, that shook the State of Gujarat. This allegation was against the then Chief Minister and Ministers of the State, as well as high police officials and bureaucrats and others for having committed offence under Section 302 read with Section 120B, Section 193 read with Section 114 and Sections 185, 153A, 186 and 187 of the Indian Penal Code11 and Section 6 of the Commission of Inquiry Act, 195212 and also under various provisions of the Gujarat Police Act, 195113 and the Human Rights Act, 199114. (g) Appellant – Zakia Ahsan Jafri along with Ms. Teesta Setalvad being the Secretary of Citizens for Justice and Peace forum, then filed an application before the High Court on 1.3.2007 bearing Special Criminal Application No. 421/2007 under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code.
During the pendency of the said petition before the High Court, the Tehelka Tape surfaced, which according to the appellant, unravelled the role of the concerned persons being involved in the build-up to the commission of crime including conspiring and abetting the State-wide violence. Be that as it may, the stated writ petition filed before the High Court was finally dismissed on 2.11.2007, in which the Court passed the following order: - “43. For the reasons stated above, present petition is dismissed. As the petitioners had not adopted the procedure of to file the complaint under section 190 r.w. section 200 of the Criminal Procedure Code, the petitioner No.1 is relegated to file appropriate private complaint to invoke the provisions of section 190 r.w. section 200 of the Criminal Procedure Code by filing the private complaint and the same shall be considered in accordance with law and on merits after following due procedure under Criminal Procedure Code.
It is, however, made clear that this Court has not expressed any opinion on the merits of the case in favour of either parties. Rule discharged.” (emphasis supplied) G 11 for short, “IPC” 12 for short, “the 1952 Act” 13 for short, “the 1951 Act” 14 for short, “the 1991 Act” H 28 A B SUPREME COURT REPORTS [2022] 6 S.C.R. Notably, the High Court did not issue any direction for registration of FIR in respect of the complaint presented by appellant – Zakia Ahsan Jafri, dated 8.6.2006. (h) Being aggrieved by this decision, the appellant along with Ms. Teesta Setalvad filed SLP(Crl.) No. 1088/2008, hearing whereof was tagged along with writ petition filed by the NHRC being W.P.(Crl.) No. 109/2003. Vide order dated 3.3.200815, Mr. Prashant Bhushan, learned counsel was appointed as Amicus Curiae in SLP(Crl.) No. 1088/2008 to espouse the cause of the appellant herein. (i) When both these matters were listed on 26.3.200816, this Court C passed the following order: - “Order D E After having heard learned counsel for the parties, we feel that considering the sensitive nature of the cases involved, appointment of a Special Investigation Team (in short ‘SIT’) is warranted.
Communal harmony is the hallmark of a democracy. No religion teaches hatred. If in the name of religion, people are killed, that is essentially a slur and blot on the society governed by rule of law. The Constitution of India, in its preamble refers to secularism. Religious fanatics really do not belong to any religion. They are no better than terrorists who kill innocent people for no rhyme or reason in a society which as noted above is governed by rule of law. These are cases where there is an element of communal disharmony, which is not to be countenanced. The State of Gujarat F 1 5 “ORDER G The High Court’s order does not render the petitioners remedy less. But, various important aspects arise for consideration. In a given case, a person who has knowledge of the commission of a crime may not be examined by the police. The question is what is the remedy available to such person? We, therefore, issue notice only to respondent Nos.
1 and 2 and the Union of India. Though, in the proceedings, the Central Bureau of Investigation is respondent No. 3, there is presently no need for issuing any notice to the CBI, as we would like to have the views of the Union of India also. Mr. Prashant Bhushan, learned counsel has agreed to assist the Court as an Amicus-Curiae. We would also request other learned senior members of the Bar to assist the Court, as the question is of vital importance in the administration of criminal justice.” H 16 supra at footnote No. 6 ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 29 has stated that it has no objection if further investigation is done so that peoples’ faith on the transparency of action taken by the State is fortified. Mr. Mukul Rohtagi, learned senior counsel appearing for the State stated that the State’s approach is fair and it is not interested in shielding any culprit or a guilty person, but on the other hand, would like all those who are guilty, to be punished.
This statement of Mr. Rohtagi is not accepted by some of the learned counsel appearing for the alleged victims. We need not go into that aspect, in view of the fact that there is an agreement that there is need for a Special Investigation Team. We, therefore, direct that an appropriate notification shall be issued by the State Government regarding the creation of SIT, the constitution of which shall be as follows.:-
Shri R.K. Raghavan, retd. Director of the CBI.
2. Shri C.B. Satpathy, retd. DG, Director, Uttar Pradesh, Police College, Moradabad
3. Ms. Geeta Johri
4. Shri Shivanand Jha
Shri Ashish Bhatia The notification by the State be issued as early as practicable, preferably within ten days. Officers at Sl Nos. 3 to 5 are IG rank officers. Shri Raghavan will be the chairman of the committee and Ms. Geeta Johri shall be the convener. The committee shall in its first meeting work out the modalities to be adopted for the purpose of enquiry/ investigation. If any person wants to make statement before the SIT for giving his or her version of the alleged incidents, the SIT shall record it. Those who want to give their version shall in writing intimate the convenor of the committee so that the SIT can call him or her for the purpose of recording his/her statement. It is needless to say that the SIT shall not confine the investigation by recording statement of those who come forward to give his or her version and shall be free to make such inquiries/investigation as felt 30 SUPREME COURT REPORTS [2022] 6 S.C.R. necessary by it.
The State Government shall provide necessary infrastructure and provide resources for effective working of the SIT. The report of the SIT shall be furnished to this Court in a sealed cover after completion of the inquiry/ investigation for which three months time is granted. After the report is submitted, the further action required to be taken shall be dealt with by this Court. The SIT shall conduct inquiries/investigations including further investigation in the following cases:- I. GODHRA FIR NO.09/2002 DATED 27.2.2002: i) CR NOS.1-6/2002 titled Mohd Rafudan Ansari & Ors. ii) CR NOS.09/2002 titled State Vs. Junia Farooq Hassaan & Ors. pending in Juvenile court II. SARDARURA, MEHSANA CR Nos. 275/2002 arising out of FIR No.46/2002 dated 28.2.2002 of police station Bijapur, Mehsana III. GULBERG SOCIETY, MEGHANINAGAR AHMEDABAD CR Nos. 67/2002 at Meghaninagar Police Station i) Sessions Case No. 152/2002 titled State V/s.
Kailash Lalchand Dhobhi & Ors. ii) Criminal Case No. 1720/2002 titled State V/s. Shankarji Hakaji Mali pending Metro Magistrate court, Ahmedabad iii) Criminal Case No. 296/2003 titled State V. Sandeep pending in the Metropolitan Magistrate court, Ahmedabad iv) Criminal Case No. 524/2002 titled State V. Vishal Badrilal Nayee & Ors. pending in the Junenile court, Ahmedabad IV. NARODA PATIYA Arising out of FIR No. 100/2002 dated 28.2.2002 of PS Naroda, Ahmedabad ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 31 i) CR No. 982/2002 titled State v. Naresh Chahra pending in MM Court, Ahmedabad A ii) CR No. 1662/2002 titled State V. Padmendra Singh & Ors. V. ODE ANAND DISTRICT Cr.Nos. 23/2002 and 27/2002 (Ode Massacre). Leave was granted to petitioners, CJP, to amend petition to include these Session Trials. Trials were stayed. B VI. NARODA GAON Inadvertently left out. CJP filed a TP(Crl.) No. 233/2004 and trial was stayed on 23.8.2004.
C VII. W.P.No. 284/2003 TP(Crl.) No. 43/2004 Imran Dawood Vs. Union of India. So far as SLP(Crl.) No. 4409/2003 and Writ Petition(Crl.) 216/2003 are concerned, though it is pointed out by learned counsel by the State of Gujarat that the trial is at concluding stage, in view of the orders passed in the other cases, we feel it would be appropriate if the inquiry/investigation including further investigation is done, in this case also. The relevant case No.is FIR 60/02 commonly known as ‘Deepda Darwaza’. So far as Writ Petition(Crl.)No. 284/03 and T.P.(Crl.) 43/2004 are concerned, the case is commonly known as ‘British Nationals Case’ and relates to Himmat Nagar, Prantij P.S district Sabarkantta and relates to FIR 1/26/2002. We make it clear that SIT shall be free to work out the modalities and the norms required to be followed for the purpose of inquiry/investigation including further investigation.
Needless to say the sole object of the Criminal Justice System is to ensure that a person who is guilty of an offence is punished. Mr. K.T.S. Tulsi, learned senior counsel had submitted that in some cases the alleged victims themselves say that wrong persons have been included by the police officials as accused and the real culprits are sheltered. He, therefore, suggested that trial should go on, notwithstanding the inquiry/investigation including further investigation as directed by us. We find 32 SUPREME COURT REPORTS [2022] 6 S.C.R. that the course would not be appropriate because if the trial continues and fresh evidence/materials surface, it would require almost a de novo trial which would be not desirable. These matters shall be listed for further directions in the last week of August, 2008. The pleadings in all these matters be completed within a period of three months.” (emphasis supplied) (j) In furtherance of the above order, the SIT published a public notice on 28.4.2008 inviting the public wanting to share information and record their statement(s) before the SIT, as notified.
After the publication of notice, the SIT started recording statements of concerned persons willing to depose before it including others as directed by this Court. (k) In due course, the special leave petition filed by the appellant being SLP(Crl.) No. 1088/2008 came up for hearing on 27.4.200917, when this Court passed the following order: -
ORDER Having heard learned counsel for the parties we direct that complaint dated 8/6/2006 which the petitioners herein claim to have sent to the DGP of Gujarat shall be examined by the Special Investigation Team (in short ‘SIT’) constituted pursuant to the orders of this Court. The SIT shall look into the matter and take steps as required in law and give its report to this Court within three months. Call this matter after three months. This case shall be heard along with writ petition (Crl.) No. 109 of 2003 and connected cases.
(emphasis supplied) Be it noted that when this order was passed, it must be assumed, that this Court was aware of the fact that the FIR had already been registered in connection with Gulberg Society case being CR No.
67/2002 and the same was committed to sessions for trial of the named 17 supra at footnote No. 4 ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 33 accused. Further, the special leave petition filed by the appellant to challenge the order of the High Court refusing to issue direction for registration of FIR on the basis of complaint of appellant – Zakia Ahsan Jafri, dated 8.6.2006, was still pending before it. (l) Nevertheless, vide judgment dated 1.5.200918, this Court vacated the stay of the trials and directed the prosecution of cases in Special Courts; and SIT appointed by it to submit progress report. The relevant extract of the said judgment reads thus: - “4. Several important aspects need to be noted in these cases. Firstly, due to the efforts of SIT, persons who were not earlier arrayed as accused have now been arrayed as accused. From the details indicated above it appears that in most of the cases a large number of persons have been additionally made accused.
Besides this, a large number of witnesses were also examined in each case. This goes to show the apparent thoroughness with which SIT has worked. Therefore, SIT shall continue to function until the completion of trial in all the cases and if any further inquiry/ investigation is to be done the same can be done as provided in law, more particularly, under Section 173(8) of the Code of Criminal Procedure, 1973 (in short “the Code”).
Since the protection of a witness is of paramount importance it is imperative that if and when any witness seeks protection so that he or she can depose freely in court, the same has to be provided. It is therefore directed that if a person who is examined as a witness needs protection to ensure his or her safety to depose freely in a court he or she shall make an application to SIT and SIT shall pass necessary orders in the matter and shall take into account all the relevant aspects and direct such police official/officials as it considers proper to provide the protection to the person concerned. It shall be the duty of the State to abide by the direction of SIT in this regard. It is essential that in riot cases and cases involving communal factors the trials should be held expeditiously. 18 (2009) 6 SCC 767 - National Human Rights Commission vs. State of Gujarat & Ors. (paras 4, 37 to 40) 34 SUPREME COURT REPORTS [2022] 6 S.C.R. Therefore, we request the Hon’ble Chief Justice of Gujarat High Court to designate court(s) in each district where the trial of the cases concerned are to be held. The Designated Courts shall take up the cases in question.
Taking into account the number of witnesses and the accused persons and the volumes of evidence, it is open to the High Court to designate more than one court in a particular district. Needless to say that these cases shall be taken up by the Designated Court on a day-to-day basis and efforts shall be made to complete the trial with utmost expedition. SIT shall furnish periodic reports if there is any further inquiry/investigation. The State of Gujarat shall also file a status report regarding the constitution of the courts in terms of the directions to be given by the Hon’ble Chief Justice of the High Court within three months. The matter shall be listed further as and when directed by this Court.
….. The matter was then heard from time to time and an order was then made on 26-3-2008 directing the establishment of SIT, and for a further investigation into these matters. The matters under investigation were those arising out of (a) Crime No. 9 of 2002 (b) Crime No. 100 of 2002 (c) Crime No. 23 of 2002 (d) Crime No. 98 of 2002 (e) Crime No. 46 of 2002 (f) Crime No. 67 of 2002 (g) Crime No. 60 of 2002 (h) Crime No. 26 of 2002 (i) Crime No. 27 of 2002 The reports of SIT, in respect of each of these cases have now been received.
We have considered the submissions made by Mr Harish N. Salve, learned amicus curiae, Mr Mukul Rohatgi, learned counsel for the State, Ms Indira Jaising and other learned counsel. The following directions are given presently: ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 35 (i) Supplementary charge-sheets shall be filed in each of these cases as SIT has found further material and/or has identified other accused against whom charges are now to be brought. (ii) The conduct of the trials has to be resumed on a day-to-day basis keeping in view the fact that the incidents are of January 2002 and the trials already stand delayed by seven years. The need for early completion of sensitive cases more particularly in cases involving communal disturbances cannot be overstated. (iii) SIT has suggested that the six “Fast Track Courts” be designated by the High Court to conduct trial, on a day-to-day basis, in the five districts as follows: (i) Ahmedabad (Naroda Patia, Naroda Gam) (ii) Ahmedabad (Gulbarg) (iii) Mehsana (for two cases) (iv) Saabarkantha opened (British Nationale case) (v) Anand (vi) Godhra train case (at Sabarmati Jail, Ahmedabad) (iv) It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner.
In order to ensure that all concerned have the highest degree of confidence in the system being put in place, it would be advisable if the Chief Justice of the High Court of Gujarat selects the judicial officers to be so nominated. The State of Gujarat has, in its suggestions, stated that it has no objection to constitution of such “Fast Track Courts”, and has also suggested that this may be left to Hon’ble the Chief Justice of the High Court. (v) Experienced lawyers familiar with the conduct of criminal trials are to be appointed as Public Prosecutors. In the facts and circumstances of the present case, such Public Prosecutors shall be appointed in consultation with the Chairman of SIT. The suggestions of the State Government indicate acceptance of SUPREME COURT REPORTS [2022] 6 S.C.R. this proposal. It shall be open to the Chairman of SIT to seek change of any Public Prosecutor so appointed if any deficiency in performance is noticed.
If it appears that a trial is not proceeding as it should, and the Chairman of SIT is satisfied that the situation calls for a change of the Public Prosecutor or the appointment of an Additional Public Prosecutor, to either assist or lead the existing Public Prosecutor, he may make a request to this effect to the Advocate General of the State, who shall take appropriate action in light of the recommendation by SIT. (vi) If necessary and so considered appropriate SIT may nominate officers of SIT to assist the Public Prosecutor in the course of the trial. Such officer shall act as the communication link between SIT and the Public Prosecutor, to ensure that all the help and necessary assistance is made available to such Public Prosecutor. (vii) The Chairman of SIT shall keep track of the progress of the trials in order to ensure that they are proceeding smoothly and shall submit quarterly reports to this Court in regard to the smooth and satisfactory progress of the trials.
(viii) The stay on the conduct of the trials are vacated in order to enable the trials to continue. In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary, SIT can request the Public Prosecutor to seek cancellation of the bails already granted. (ix-i) For ensuring of a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court, in case of witnesses following steps shall be taken: (a) Ensuring safe passage for the witnesses to and from the court precincts. (b) Providing security to the witnesses in their place of residence wherever considered necessary, and 36 ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 37 (c) Relocation of witnesses to another State wherever such a step is necessary. A (ix-ii) As far as the first and the second is concerned, SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness.
(ix-iii) In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities. (ix-iv) In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witness. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to relocate the witnesses. (ix-v) All the aforesaid directions are to be considered by SIT by looking into the threat perception, if any. (x) SIT would continue to function and carry out any investigations that are yet to be completed, or any further investigation that may arise in the course of the trials.
SIT would also discharge such functions as have been cast upon them by the present order. (xi) If there are any matters on which directions are considered necessary (including by way of change of Public Prosecutors or witness protection), the Chairman of SIT may (either directly or through the amicus curiae) move this Court for appropriate directions. (xii) It was apprehension of some learned counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the court shall have to deal with such situations sternly and pass necessary orders. SIT shall also look into this area. 38 SUPREME COURT REPORTS [2022] 6 S.C.R. (xiii) Periodic three monthly reports shall be submitted by SIT to this Court in sealed covers.
List after four months.” (emphasis supplied) It is thus noticed that this Court permitted trial of concerned (nine) cases including the Gulberg Society case being CR No. 67/2002 to proceed. This judgment is also indicative of the high trust reposed by this Court in the SIT including about directing the State authorities to abide by the instructions given by the SIT. (m) As directed by this Court vide order dated 27.4.200919, the SIT examined the complaint and also recorded statements of the concerned persons. Mr. A.K. Malhotra, former DIG, CBI and a member of the SIT recorded statements of total 187 witnesses and Mr. Himanshu Shukla, DCP, Crime Branch and I.O., SIT examined 145 witnesses, in connection with the complaint of appellant – Zakia Ahsan Jafri, dated 8.6.2006. A total of approximately 275 persons were questioned by them in compliance with the direction given by this Court. Two new members came to be inducted in the SIT on 15.5.2009.
When the investigation into the stated complaint was ongoing, the SIT submitted last supplementary chargesheet in the Gulberg Society case being CR No. 67/2002, on 12.8.2009, which fact was placed on record before this Court. (n) SLP(Crl.) No. 1088/2008 then came up for hearing on 19.1.2010 along with other cases. The Court was duly informed that the SIT had submitted an interim report and asked for five months’ further time to complete the investigation in respect of complaint of appellant – Zakia Ahsan Jafri, dated 8.6.2006. This Court granted time till 30.4.2010. The order dated 19.1.2010, reads thus: - “ORDER In regard to the investigations in SLP(Crl.) No. 1088 of 2008, an interim report has been submitted by the Special Investigating Team (SIT). In the said report it has been reported that having regard to the gravity, complexity and vast spread of the allegations across Gujarat State, a very large number of suspects and 19 supra at footnote Nos.
4 and 17 ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 39 witnesses have to be examined. It is also reported that a large number of vital documents are still awaited from the Government of Gujarat. The Committee has prayed for grant of 5 months’ further time for completion of the enquiry and submission of its final report in the matter. The Committee has also sought direction to the Government of Gujarat to hand over all the vital documents requisitioned by it from them. Having perused the correspondence between the SIT and the State Government, filed as annexures with the report, we direct the Government of Gujarat to hand over all the documents, which have been requisitioned by the SIT without any further delay. The SIT would try to complete the enquiry in the matter expeditiously and submit its report by 30th April, 2010. The report shall be kept in the sealed covers. …..” (o) On 6.5.2010, Gulberg Society case being CR No.
67/2002 was put on hold because of the resignation of the Special Public Prosecutor appearing in that case. This Court took notice of I.A. No. 19816/2009 and passed the following order on 6.5.2010: - Crl.M.P. No. 19816/2009: “ORDER Having perused the comments submitted by the learned Amicus Curiae on the allegations in the application (I.A. No. 19816 of 2009), and discussed the matter with him and the Chairman SIT at some length, we feel that it would be appropriate and expedient to direct Mr. A.K. Malhotra, D.I.G. (Retd) C.B.I. to examine all police records in the possession of the SIT and submit a report about the veracity of the explanation given by the SIT on each of the points raised in the said application. The report shall be submitted within eight weeks. We further direct that though it seems unlikely that the trials would conclude shortly, but if in any one of the cases the trial is concluded before the next date, the concerned Trial Court(s) shall not pronounce the final judgment till further orders by this Court.
SUPREME COURT REPORTS [2022] 6 S.C.R. List the application along with other listed applications for directions on 6th August, 2010. A report has been submitted by the Chairman SIT, on the letter of Shri Nigam R. Shukla, the Special Public Prosecutor, in Naroda Police Station case (CR.No.98 of 2002). We request the learned Amicus Curia to assist the Chairman, SIT in finding out suitable replacements for S/Shri R.K. Shah and N.R. Nigam, Special Public Prosecutors. As soon as the names are finalised by the Chairman SIT and communicated to the State Government, appropriate orders in that behalf shall be issued by the authorities concerned and in both the cases, which were being handled by them, shall resume subject to the orders, if any, by the Gujarat High Court in transfer petition arising from C.R. No. 67 of 2001. The progress report in Writ Petition (Crl.) No. 109 of 2003 filed by the SIT is taken on record.
The same be kept in the sealed covers.” (emphasis supplied) In other words, this Court once again passed an interim order in respect of trial in Gulberg Society case being CR No. 67/2002, directing the trial Court to proceed but not to pronounce the final verdict. On 12.5.2010, the SIT submitted a report prepared by Mr. A.K. Malhotra asking for time for further investigation to enquire into the role of Mr. Gordhan Zadafia, the then Minister of State (Home), Mr. M.K. Tandon, the then Joint Commissioner of Police, Sector-II, Ahmedabad City and P.B. Gondia, the then DCP, Zone-IV, Ahmedabad City. (p) This Court, on 26.10.2010, permitted Mr. Prashant Bhushan, learned Amicus Curiae to withdraw from the case and instead nominated Mr. Rohinton Fali Nariman, learned senior counsel (as he then was) in his place, to assist the Court. In addition, the Court directed handing over of the reports of Mr. A.K. Malhotra to the Amicus Curiae, after taking it on record. This Court also lifted the stay on the pronouncement of the judgment except in Gulberg Society case being CR No. 67/2002. Relevant portion of the said order dated 26.10.2010, reads thus: - 40 ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 41 “
O R D E R SLP(Crl.) No. 1088/2008 At the outset, Mr. Prashant Bhushan has expressed unwillingness to continue as the Amicus Curiae and requested that he may be relieved from the case. We accede to the request and appoint Mr. Rohinton Fali Nariman as an Amicus Curiae to assist the Court in this case. Mr. Bhushan states that he will return the papers of the case received from the office in a sealed cover. On receipt of the record, the office shall forward the same to Mr. Nariman. Report dated 20th October, 2010 on further investigation against Shri M.K. Tandan Etc. has been filed by the Chairman and one of the Members of the Special Investigation Team. According to the report, the investigation is likely to be concluded within a fortnight. The report is taken on record. Let the final report be filed before the next date. List on 2nd December, 2010, at 3.00 p.m. for consideration of the reports. Crl.M.P. No.
22117 and 22115 of 2010 in SLP(Crl.) No. In view of the fact that Mr. Prashant Bhushan has been discharged from the case as Amicus Curiae, both these applications are rendered infructuous and are disposed of accordingly. Crl.M.P. No. 19816 of 2009 In WP(Crl.) Nos. 37-52/2002 In view of the subsequent developments, no further orders are called for in this application and the same is dismissed accordingly. Crl.M.P. Nos. 22161-22162 of 2010 In WP(Crl.) Nos. 37- 52 of 2002 Adjourned sine die. Crl.M.P. No. 22325/2010 In WP(Crl.) NOs. 37-52 of 2002 At this stage, no orders are called for in the application. The application stands disposed of accordingly. Crl.M.P.NOs. 22326-22327/2010 in WP(Crl.) No. 109/2003 42 SUPREME COURT REPORTS [2022] 6 S.C.R. In the light of the report of Mr. A.K. Malhotra dated 13th August, 2010 and the submissions of learned Amicus Curiae, we lift the restraint order passed on 6th May, 2010, in all the cases, except in Cr.
No. 67 of 2002 (Meghani Nagar Gulbery Society case), in which case the trial may proceed but the final judgment shall not be pronounced. The trial Courts are now free to pronounce the final judgments. The applications are disposed of accordingly. WP(Crl.) No. 109/2003. A report dated 20th October, 2010 has been filed by the Chairman, SIT, indicating the progress in trials in all the cases. The Chairman has stated that the trials are being closely monitored by him and other members of his team. According to the report, the trials in all the cases, on the whole, are proceeding quite satisfactorily. Let a copy of the report be supplied to the learned Amicus Curiae. The report will be taken up for consideration on 2nd December, 2010, at 3.00 p.m. We direct that in future the office shall list only those applications in which specific orders for listing are made. All the disposed of applications shall be detached from the record and shall not be shown in the cause list.
The office shall also prepare a complete list of all the pending applications and place before the Court for appropriate orders on the next date. The aforestated two reports filed by the SIT shall be kept in the sealed covers. SLP(Crl.) No. 7046/2010 In the first instance, issue notice to respondent No.1. Ms. Hemantika Wahi waives service of notice on behalf of the said respondent and seeks time to file reply affidavit. Let the needful be done within two weeks with advance copy to the learned counsel for the petitioners and to learned Amicus Curiae. Rejoinder affidavit, if necessary, shall be filed by the next date. Copies of the petition shall also be supplied to Mr. Harish N Salve, ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 43 the learned Amicus Curiae and the Chairman, SIT for their comments. A List on 2nd December, 2010 at 3.00 p.m.” (emphasis supplied) (q) The further report filed in this case had mentioned that most of the allegations were not borne out from the statements and materials collated during investigation.
However, it was recommended that further investigation under Section 173(8) of the Code in respect of Mr. Gordhan Zadafia, Mr. M.K. Tandon and Mr. P.B. Gondia, may be necessary. Notably, the further investigation was conducted by Mr. Himanshu Shukla, DCP, Crime Branch and I.O., SIT and report was submitted by him to this Court on 17.11.2010. (r) As noticed earlier, on one hand, the trial concerning Gulberg Society case being CR No. 67/2002 involving the gruesome killing of the husband of the appellant and others by a violent mob was allowed to proceed by this Court even when the SIT was enquiring into the complaint of appellant – Zakia Ahsan Jafri, dated 8.6.2006; and in that process, the deposition of Mr. Ashish Khaitan, senior journalist (who had conducted the Tehelka Sting Operation) was recorded by the trial Court on 2.8.2010, of Mr. Rahul Sharma on 15.9.2010 and of appellant – Zakia Ahsan Jafri on 22.10.2010.
(s) Further investigation report came to be submitted before this Court by Mr. Himanshu Shukla on 17.11.2010. On 23.11.201020, Mr. Rohinton Fali Nariman, learned Amicus Curiae requested the Court to allow him to withdraw from the case. That request was acceded to by the Court and in his place, Mr. Raju Ramchandran was appointed as Amicus Curiae to be assisted by Mr. Gaurav Agrawal, learned counsel. The Court also directed handing over to both the newly appointed Amicus Curiae, the reports of SIT. The Amicus Curiae in turn examined the SIT reports concerning complaint of appellant, dated 8.6.2006, and placed their observations on record in the form of a note made over to the SIT. This Court then vide order dated 20.1.2011, directed thus: - 2 0 ‘‘ORDER Since Mr. Rohinton Fali Nariman, Senior Advocate has expressed his inability to assist the Court in this case, we request Mr. Raju Ramachandran, Senior Advocate and Mr.
Gaurav Agarwal, Advocate, to assist the Court in this case as Amicus Curiae. All the papers received back from Mr. Prashant Bhushan, learned counsel, in sealed cover shall be forwarded to Mr. Gaurav Agarwal.” 44 SUPREME COURT REPORTS [2022] 6 S.C.R. W.P.(CRL.)NO. 109/2003 “ORDER Mr. Harish N. Salve, the learned amicus curiae, has placed before us a note, pointing out that the Presiding Judge conducting trial in Naroda Police Station I.CR No.100/2002, has since been transferred by the High Court in routine transfers of the Judicial Officers in the State. Learned amicus suggests that since the trial in the said case is at an advanced stage, the Officer may not be shifted. We feel that it will be proper and expedient if this request is made by the Chairman, Special Investigation Team (SIT) before the Chief Justice of Gujarat High Court on the administrative side. We are confident that having regard to the fact situation, the learned Chief Justice will pass appropriate orders on the request of the Chairman, SIT. A Progress Report, dated 18th January, 2011, regarding nine under trial cases has been filed by the Chairman, SIT. It appears from the said report that except for two Naroda cases, trial in other cases is nearing completion.
In the said report, it is also pointed out that Presiding officer looking after the trial of Gulberg Society case (Shri B.U. Joshi) and Naroda Patiya case (Ms. Jyotsnaben Yagnik) have been transferred out of Ahmedabad on 30th December, 2010. The report is taken on record and shall be kept in a sealed cover. Special Leave Petition (Criminal) No. 7046 of 2010 Ms. Kamini Jaiswal, learned counsel appearing for the petitioners prays that orders on the petition may be deferred for some time as she has not yet received complete instructions in the matter. Call on 3rd March, 2011 at 3.00 p.m. W.P.(CRL.) NO. 37-52/2002 An additional affidavit has been filed by Ms. Teesta Setalvad, one of the petitioners, explaining the circumstances under which copies of two letters addressed by her to Shri R.K. Raghavan, Chairman, SIT, were ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 45 endorsed to the Office of High Commissioner for Human Rights (OHCHR), at Geneva.
Ms. Kamini Jaiswal states on instructions from Ms. Teesta Setalvad, who is present in Court, that in future no such letters shall be sent to the said organization. In light of the statement, we close the issue at that. SLP (CRL.)...CRLMP.NO.1127/2011 Delay condoned. No ground is made out for grant of permission to file the Special Leave Petition. The Special Leave Petition is dismissed accordingly. SLP (CRL)....CRLMP. NO.1519/2011 Delay condoned. Issue notice returnable on 3rd March, 2011. SLP(CRL) NO. 1088 OF 2008 A note has been submitted by Mr. Raju Ramachandran, learned amicus curiae, for our perusal. A copy of the said note has also been supplied to the Chairman, SIT, who is present in Court today. List the matter on 3rd March, 2011 at 3.00 p.m.” (emphasis supplied) It is noticed from this order that certain issues were raised in connection with two letters addressed by Ms. Teesta Setalvad to Dr.
R.K. Raghavan, Chairman, SIT, which were also endorsed to the Office of High Commissioner for Human Rights Council (OHCHR), Geneva. Ms. Teesta Setalvad was called upon to explain the same. In response to which she had to give assurance to this Court that in future she will not repeat the act of forwarding letters written by her to SIT to the said organisation (OHCHR) and on such assurance, the issue stood closed. (t) The matters were then listed on 15.3.2011, when Mr. Raju Ramchandran, learned Amicus Curiae submitted a note, which had already been supplied to the Chairman, SIT. The Court directed the Chairman, SIT to look into the observations made by the Amicus Curiae against each of the findings made by the SIT. The order reads thus: - SUPREME COURT REPORTS [2022] 6 S.C.R. “ORDER SLP(Crl.) No. 1088/2008 A copy of the note submitted by the learned amicus curiae has already been supplied to the Chairman, Special Investigation Team (SIT).
Let the Chairman, SIT, look into the observations made by the learned amicus curiae against each of the findings given by the SIT on the allegations made in the complaint and submit his report thereon. If considered necessary, it will be open to the SIT to carry out further investigations in light of the observations made in the said note. The report shall be submitted by 25th April, 2011. List the case on 27th April, 2011 at 3.00 p.m. The note submitted by the learned amicus curiae shall be kept in a sealed cover. …..” (u) What is significant to notice is order dated 5.5.2011 passed by (emphasis supplied) this Court. The same reads thus: - “ORDER SLP(Crl.) No. 1088/2018 Pursuant to our order dated 15th March, 2011, the Chairman, Special Investigation Team (SIT) has filed report on the further investigations carried out by his team along with his remarks thereon. Statements of witnesses as also the documents have been placed on record in separate volumes.
Let a copy of all these documents along with the report of the Chairman be supplied to Mr. Raju Ramachandran, the learned Amicus Curiae. The learned Amicus Curiae shall examine the report, analyse and have his own independent assessment of the statements of the witnesses recorded by the SIT and submit his comments thereon. It will be open to the learned Amicus Curiae to interact with any of the witnesses, who have been examined by the SIT, including the police officers, as he may deem fit. 46 ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 47 If the learned Amicus Curiae forms an opinion that on the basis of the material on record, any offence is made out against any person, he shall mention the same in his report. List on 28th July, 2011 at 3.00 p.m. CRL.M.P. Nos. 21849/2009 and 21850/2009 in SLP(CRL.) No. At the request of learned counsel for the applicants, adjourned to 28th July, 2011 at 3.00 p.m. for preliminary hearing.
SLP(CRL.) NO. 1032/2011 Learned counsel for the respondents submit that they do not propose to file any counter affidavit to the petition. List the matter for final disposal on 28th July, 2011 at 3.00 p.m. All the reports shall be kept in a sealed cover.” (emphasis supplied) In terms of this order, Mr. Raju Ramchandran, learned Amicus Curiae was granted liberty to examine the SIT report, analyse the same and give his own independent assessment of the statement of witnesses recorded by the SIT and submit his comments thereon. For doing that, he was also permitted to interact with any of the witnesses, who had been examined by the SIT including the police officials, as he may deem fit. In this two-month period, the Amicus Curiae had interacted with all concerned, as he desired including with Ms. Teesta Setalvad. This direction was in the nature of permitting the Amicus Curiae to do appraisal of the actions of the investigator (SIT) appointed by this Court.
This was an extra effort not only expected from the Amicus Curiae, but also for reassuring the Court that each allegation in the complaint dated 8.6.2006 is dealt with appropriately in the report submitted by the SIT. The learned Amicus Curiae, after analysing the entire material including the reports, then submitted his report on 25.7.2011. (v) After the report was submitted by Amicus Curiae on 25.7.2011, the SIT submitted its further report after investigation including to deal with the observations of the Amicus Curiae on every aspect noted in his report. This further report of the SIT was placed before this Court on 48 SUPREME COURT REPORTS [2022] 6 S.C.R.
12.9.2011. This Court being satisfied with the fact that investigation had been completed by the SIT under its supervision, following the decision in Bhagwant Singh vs. Commissioner of Police & Anr.21, as well as, Vineet Narain & Ors. vs. Union of India & Anr.22, Union of India & Ors. vs. Sushil Kumar Modi & Ors.23, M.C. Mehta (Taj Corridor Scam) vs. Union of India & Ors.24 and Narmada Bai vs. State of Gujarat & Ors.25, proceeded to pass the following order on 12.9.201126:- “.….
The learned amicus curiae has now submitted his final report dated 25-7-2011. In light of the above conspectus and the report of the learned amicus curiae, the question for determination is the future course of action in the matter.
We are of the opinion that bearing in mind the scheme of Chapter XII of the Code, once the investigation has been conducted and completed by SIT, in terms of the orders passed by this Court from time to time, there is no course available in law, save and except to forward the final report under Section 173(2) of the Code to the court empowered to take cognizance of the offence alleged. As observed by a three-Judge Bench of this Court in M.C. Mehta (Taj Corridor Scam) v. Union of India, (2007) 1 SCC 110, in cases monitored by this 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, we direct the Chairman, SIT to forward a final report, along with the entire material collected by SIT, to the court which had taken cognizance of Crime Report No. 67 of 2002, as required under Section 173(2) of the Code. Before submission of its report, it will be open to
Questions this judgment answers
Which statutory provisions did this judgment involve?
Indian Penal Code, 1860 — ss. 114, 120B, 153A, 185, 186, 187, 193, 302; Commission of Inquiry Act, 1952 — s. 6; Gujarat Police Act, 1951; Human Rights Act, 1991; Constitution of India — arts. 226, 227, 356; Code of Criminal Procedure, 1973 — ss. 173(8), 200.
Which court decided this case, and when?
Supreme Court of India, on 24 Jun 2022. The bench was A M KHANWILKAR, DINESH MAHESHWARI, C T RAVIKUMAR.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.