The common perception was that Modi & Co. orchestrated Gujarat genocide following Godhra incident, wherein kar-sevaks travelling in Sabarmati Express were allegedly attacked and coaches of the train were set on fire at Godhra Railway Station in Gujarat 0n 27.02.2002, leading to the death of 58 kar-sevaks on the spot and one later. However, the perception was single-handedly changed by Indian judiciary, so much so that Modi is enjoying his third term in practically the highest office of the country. In this piece, I am just trying to make understand the process of this change of perception.

Though Modi got the final clean chit from the apex court in 2022, he had already enjoyed 8 years in office by then. The reason for that is the order dt. 12.09.2011 in SLP (Crl) 1088/2008 followed by the order dt. 26.12.2013 of metropolitan magistrate in CR No. 67/2002 (Gulbarg Society case), wherein the metropolitan magistrate accepted the closure report filed by the investigation team in reference to Modi & Co, thereby giving clean chit to Modi, thus allowing Modi to gain prime minister ship in 2014. SLP (Crl) 1088/2008 was filed by Zakia Jafri, the widow of Ehsaan Jafri, to investigate the role of Narendra Modi and others in the Gulbarg Society case in the context of an alleged larger conspiracy to orchestrate Gujarat genocide. Ehsaan Jafri, the resident of Gulbarg Society in Ahmedabad, was killed by a Hindu mob in the genocide following the Godhra incident. Zakia Jafri first sent the police complaint dt. 08.06.2006 to DGP of Gujarat Police & ors, followed by a writ petition in the Gujarat High Court on inaction of the police. The writ petition was dismissed on the technical ground that alternative effacious remedy of approaching the magistrate under s. 156 CrPC had not been availed of. Zakia Jafri, instead of approaching the magistrate thereafter, approached the Supreme Court by filing an SLP against the order of the High Court, which came to be registered as SLP (Crl) 1088/2008 mentioned above. However, a criminal writ petition, W. P. (Crl) 109/2003, had already been filed by National Human Rights Commission (NHRC) seeking fair investigation and trials in all cases of crimes committed during Gujarat genocide in the context that there was a situation in Gujarat bordering on failure of the state machinery. Relevant orders had already been passed in the said writ petition including with respect to CR No. 67/2002 pertaining to Gulbarg Society case, and Zakia Jafri’s SLP was tagged with the said writ petition. Subsequently, a special investigation team (SIT) was constituted vide order dt. 26.03.2008 in the above mentioned two petitions to investigate/further investigate various cases of Gujarat genocide including Gulbarg Society case vide CR No. 67/2002. Further, on 27.04.2009, the SIT was also directed to look into the complaint dt. 08.06.2006 sent by Zakia Jafri to DGP of Gujarat Police and file a report thereof in the court. However, while the SIT examined Zakia Jafri’s complaint, the trial in CR No. 67/2002 continued by the order of the Supreme Court with a rider that if the trial concludes, the trial court shall not pronounce the final judgment till further order of the court. The SIT filed a closure report in the Supreme Court, which vide order dt. 12.09.2011 was directed to be filed before the metropolitan magistrate under s 173(2) CrPC in CR No. 67/2002, after having been examined by the amicus curiae (friend of the court) and having been commented thereof. The report was to be filed in the form found appropriate by the SIT; i. e. either as a charge sheet in view of the comments raised by the amicus curiae or as a closure report as has been filed before the Supreme Court. Zakia Jafri was given liberty to file a protest petition before the magistrate in case a closure report was filed. The SIT chose to file a closure report before the magistrate as well, who after deliberating on the protest petition filed by Zakia Jafri, accepted the closure report, giving clean chit to Modi. The Gujarat High Court and, then eventually, the Supreme Court upheld the order of the magistrate. These are the bare facts in the nutshell.

Now, let us analyse the case. First and foremost, the SLP filed by Zakia Jafri was lost in the muddle. The Supreme Court never gave thoughtful consideration to the pendancy of Zakia Jafri’s SLP while allowing trial in CR No. 67/2002. That there should be no double jeopardy is the basic principle of criminal jurisprudence. It is correct that Supreme Court restrained the trial court from pronouncing the final judgment, but that was not done in context of Zakia Jafri’s SLP; therefore, when Zakia Jafri’s SLP was finally disposed off, no comment was made in respect of continuation of trial in CR No. 67/2002. Eventually, by the time, the case came to final closure in 2022, the trial had already concluded and judgment also pronounced in CR No. 67/2002.

Coming to the reasoning in the judgment dt. 24.06.2022, the Supreme Court accepted each & every single argument, good or bad, raised by the SIT. The Supreme Court is very fond of calling investigative agencies the “caged parrot” of the executive, but what appears from the judgment is completely different: the Supreme Court has appeared as the “caged parrot” of the SIT, repeating each & every single word of the SIT. SIT raised a very stupid argument that since the Supreme Court never asked SIT to file FIR and continued the trial in CR No. 67/2002 even while Zakia Jafri’s complaint was being examined by SIT, the procedure set up by the Supreme Court was sui generis not following the principles of investigation enumerated in criminal procedure code (CrPC), thus SIT couldn’t have gone beyond the strict directions of the Supreme Court in SLP (Crl) 1088/2008. By this, SIT meant that their investigation was thus limited only to examination of initial complaint dt. 08.06.2006 sent by Zakia Jafri to DGP of Gujarat Police and nothing more. They further stated that the sui generis procedure adopted by the Supreme Court contemplated the report to be submitted to the magistrate only as a further report under section 173(8) of CrPC, and that SIT was only expected to investigate into the allegation regarding “larger conspiracy” and not the criminal conspiracy at the local level, which had already been dealt with in CR No. 67/2002. However, the order dt. 12.09.2011 had treated the report to be filed before the magistrate as a police report on completion of investigation, commonly called charge sheet/closure report. It was not contemplated as an additional or further report in a pending investigation. This was so very clear from the order dt. 12.09.2011 of the Supreme Court. There could be no doubt about it. How the Supreme Court dealt with it in judgment dt. 24.06.2022? I think it’s better to reproduce the words of the Supreme Court in para 16 and 17of the judgment verbatim:

16. Notably, this Court consciously directed, vide order dated 07.02.2013, to treat the statements recorded by the SIT in connection with the investigation/enquiry concerning the complaint of appellant as made under Section 161 of the Code; and to form part of the report submitted by the SIT to the Court concerned, which had taken cognizance of Crime Report No. 67/2002 concerning Gulberg Society, in terms of order dated 12.9.2011, treating it as a police report under Section 173(2) of the Code. This presupposes that the further investigation by the SIT was on the assumption that the complaint dated 8.6.2006 may contain new information/material other than already enquired into in connection with Crime Report No. 67/2002 — as permissible under Section 173(8) of the Code. No more and no less.
17. All the aforestated circumstances and the judicial orders passed by this Court from time to time on the petition filed by the appellant would go to show that this court had implicitly rejected her prayer to register the stated complaint as an independent FIR or for that matter, as an independent private complaint for being proceeded further. The successive orders passed by this Court and directions issued to SIT were only to look into the aspects that were not part of the cases investigated by the SIT including the (four) criminal cases concerning Gulberg Society — as the same were already registered and proceeded for trial, in particular, criminal conspiracy hatched in the commission of those crimes. Inasmuch as, all other aspects already formed part of enquiry and chargesheet/trial of those cases. Not only that, even the other eight cases assigned to SIT by this Court covered similar matters including allegations of criminal conspiracy. To put it differently, what remained to be looked into was only about the “allegations of larger conspiracy at the highest level” which resulted into causing mass violence across the State during relevant period.

(emphasis supplied)

Let me explain what the court is saying in simpler terms. Let’s say a local goon murders a political opponent of say the local MLA. In a private conversation, the local goon boasts of his contacts with the local MLA and also makes an extra judicial confession that he murdered his said political opponent on his orders. The private conversation is produced in the court by the party to the conversation as evidence. The wife of the political opponent, however, files an unrelated complaint before the police and then the courts alleging involvement of local MLA in the murder of her husband on the basis of some statements made by say PA of the local MLA to the press. The court directs the police to investigate the complaint and file charge sheet/closure report in the court prosecuting the local goon. In the above facts, common sense demands that the police while investigating the complaint of the wife should not only examine the statement made by the PA but also the private conversation of the local goon and its investigative potential on the local MLA as it is aware of the facts of the private conversations. However, the Supreme Court is saying that since the court didn’t direct registering of the FIR on the complaint of the wife, the police shouldn’t examine the private conversation of the local goon and its investigative potential on the local MLA as the conversation of the local goon has already been examined in the prosecution he is facing, albeit without examining its investigative potential on the local MLA, and this is correct approach because the complaint of the wife was never treated as a source of comprehensive investigation by the court.

It is absurd to investigate “larger conspiracy” without investigating “local conspiracy” in connection with the “larger conspiracy”. The moment any clue is obtained while investigating “local conspiracy”, it will have direct effect on the “larger conspiracy”, and there can be no doubt about it. No court worth its salt would separate investigations of crimes arising out of the same transactions. Nor did the Supreme Court while passing orders in SLP (Crl) 1088/2008. It is so very evident from order dt. 12.09.2011, which directed filing of charge sheet/closure report. SIT, obviously, manufactured an oblique argument to benefit Modi & Co; the Supreme Court ought to have rejected it even before it was raised. Anyways, the Supreme Court couldn’t have misread its earlier order dt. 12.09.2011, so it introduced a presupposition that complaint of Zakia Jafri was introducing new information/material for investigation, which is fine, but then it also introduced section 173(8) CrPC in brackets in relation to the said new information/material, thereby restricting the scope of the investigation. The elaboration of the restriction of the scope was made in the next para, which was basically the repetition of the averments made by SIT.While doing so, the court forgot it was actually recommending an absurdity, which no court would do. What is this if not the “caged parrot” behaviour?

In any case, the arguments of SIT were devoid of any legal basis. Filing of FIR is not a precondition for investigation. In fact, CrPC doesn’t make any mention of any FIR anywhere. Nor does it differentiate between enquiry and investigation. It’s the investigative agencies who call any investigation before filing of FIR as enquiry and post-FIR as investigation. Supreme Court in SLP (Crl) 1088/2008 had initially ordered an enquiry, which would give an impression that the culmination of enquiry should have been followed by lodging of the FIR or by rejection of the complaint. It is in this perspective, SIT filed its report opining that there was no need to file the FIR. However, the Supreme Court ignored the distinction between enquiry and investigation and directed the SIT to file charge sheet/closure report in the trial court. SIT gave a twist to it and called the report filed before the trial court as further investigation under section 173(8) CrPC. The second argument of the SIT that the trial in CR No. 67/2002 was not stayed, is inconsequential. The Supreme Court stayed the final judgment. The double jeopardy arises only when a finally acquitted person has to face a re-trial. So there was no difficulty in re-investigation of the same “local conspiracy” again in supplement/complement to the investigation of the “larger conspiracy”.

Nevertheless, the SIT also made elaborate arguments before the Supreme Court on the allegations raised in the protest petition filed before the magistrate. It would, therefore, be better to analyse the two set of allegations separately. The first set of allegations are derivable directly from the complaint dt. 08.06.2006 of Zakia Jafri. These allegations have been elaborated in para 19 of the judgment dt. 24.06.2022. Briefly, the allegations pertained to meeting dt. 27.02.2002 between Narendra Modi, CM, and senior officials of Gujarat government; verbal illegal instructions by CM to officials; mishandling of the dead bodies of kar-sevaks; presence of cabinet ministers in DGP office and police control room; transfer of the non-compliant field executives as punishment and rewarding of the complaint senior officials; partisan investigations; no follow up action on reports by R. B. Sreekumar; delay in requisition and deployment of army; political appointments of public prosecutors; status quo with respect to pro-genocide grass-root level officers; no action against inciting media reports and rants; misleading reports about normalcy in state; no action against senior police officers for dereliction of duty; G. C. Murmu’s agency to tutor, cajole, intimidate, officers from deposing before Nanavati-Shah Commission; police bias and inaction; etc.

The allegation was that of criminal conspiracy. In a criminal conspiracy, actus reus is the agreement to do illegal act or an agreement to do legal act by illegal means. Thus meeting of minds is important. Since conspiracies are hatched in secret, it is difficult to get direct evidence of the same; thus, conspiracies are often presumed albeit applying the principle of “beyond reasonable doubt” to the proof. Once the meeting of mind is proved, the actions subsequent to such meeting of minds are corroborations of the conspiracy. Here, the allegation was that Narendra Modi, the CM of Gujarat, entered into a criminal conspiracy with many other persons to orchestrate genocide in Gujarat. Out of the above, only meeting dt. 27.02.2002 and the presence of cabinet ministers in DGP office could have pointed towards meeting of minds. However, the allegation was also that presence of cabinet ministers in DGP office was objected to by DGP; therefore, only the meeting dt. 27.02.2002 remained the only occasion for meeting of minds.

The meeting was called at the residence of the CM at Gandhi Nagar on 27.02.2022 at 2300 hrs and was attended by senior officials of the Gujarat state. It was alleged that the CM said to the officials in the meeting that Hindus should be allowed to vent their anger, and subsequent events like the delay in deployment of army, mishandling of dead-bodies, police bias and inaction, etc, have been alleged as actions corroborating the conspiracy. Sanjiv Bhatt, the then deputy commissioner of intelligence, i.e. DCI (Security), claimed to have attended the said meeting on behalf of G. C. Raiger, the then Addl. DG (Int.), who was on leave, and heard Narendra Modi say the above words. Haren Pandya, the then MoS for Revenue, also claimed to have attended the said meeting and heard those words. R. B. Sreekumar, the then Addl DGP claimed that Chakravarthi, the then DGP, told him on 28.02.2002 that Narendra Modi spoke those words in the said meeting dt. 27.02.2002. The claims of all three of them were found to be weak enough by the SIT to be presented as evidence in the trial. Sanjeev Bhatt’s claim were found to be false as all the other participants of the meeting denied his presence in the meeting in a single voice. Similarily, Haren Pandya’s claim of presence in the meeting was denied by other participants. Furthermore, the SIT found that the call detail records of Haren Pandya showed that he was in Ahmedabad on 27.02.2002 at 2300 hrs when the meeting at CM residence in Gandhi Nagar took place. There were no call detail records for Sanjeev Bhatt after 2040 hrs. R. B. Sreekumar’s testimony was rejected as hearsay, and also Chakravarthy denied making any such statement to R. B. Sreekumar.

It would also be interesting to note the present status of these three persons. Haren Pandya was murdered. Sanjiv Bhatt is serving life sentence for murder to be followed by a 20 year jail term for falsely implicating a lawyer in a drug’s case; he has already been in jail since 2018. R. B. Sreekumar was also arrested a day after the judgment dt. 24.06.2022 on the charges of criminally conspiring with Teesta Setalvad in a case of fabricating evidence to frame people in connection with 2002 Gujarat genocide. He is out on bail. He also joined AAP in 2014.

Haren Pandya and R. B. Sreekumar’s testimony was indeed week, but Sanjiv Bhatt’s testimony was pretty strong. Many collateral attacks have been made against him by SIT like scathing comments against him by the Supreme Court in other proceedings, departmental enquiries, conviction in two criminal cases, non-filing of affidavit before Nanavati-Shah commission, sitting on the information for nine years, etc. The court declared that Sanjiv Bhatt set up a false claim. In court’s words:

It is, thus, not a case of one version against the other, but of false claim set up by Mr. Sanjiv Bhatt of being personally present in the stated meeting.

This opinion reached by the court is completely illegal. The Supreme Court in an appeal has no benefit of evidence post-trial. It just can’t reach such an opinion. Its job was just to see if the opinion reached by SIT that Sanjiv Bhatt was an unreliable witness, was correct. Earlier, amicus curiae had opined that the testimony of Sanjiv Bhatt can’t be doubted & should go to trial. In response to which, SIT prepared dozens of pages, which were annexed to the judgment, to come to the conclusion that “Sanjiv Bhatt had been colluding with the persons with vested interests to see that some kind of charge-sheet is filed against Shri Narendra Modi and others”.

The problem with SIT was that it became more political than politicians.Instead of investigating further on the lead to find the truth of the meeting, SIT acted as an apologist for Modi and collected all possible information against Sanjiv Bhatt to somehow impinge his credibility.They basically assumed the role of a defence counsel/team, and the Supreme Court didn’t even try to find the truth. It deliberated on irrelevant issue of false witness of Sanjiv Bhatt, which it can’t do without evidence. I have doubt if Supreme Court even read the annexure which it appended to its judgment dt 24.06.2022. What is worse! Even the appellants abandoned Sanjiv Bhatt’s testimony. They made a statement in their written arguments that they were relying only on Tehalka Sting Operation and other “undisputed” information to make out a case of “larger conspiracy”.

The other allegations mentioned above in connection with the police complaint filed by Zakia Jafri have not much relevance as I have already said they only have corroborative value. Anyways, SIT acted as apologists for Modi with respect to all the other allegations as well, as if protecting Modi was some kind of “national security” interest. And the court would, of course, say:

We fail to understand as to how this act can be linked with the allegation of hatching of criminal conspiracy for causing or precipitating mass violence across state.

Now coming to Tehelka Sting Operation. Zakia Jafri, in her complaint to the DGP, had not made any reference to Tehelka Sting Operation to make out a case for “larger conspiracy” on the proof of “local conspiracy” as emerging from Tehelka Sting Operation. This sting operation was carried out by Ashish Khetan, a journalist. He interviewed various local level leaders of VHP/Sangh who boasted about their involvement in the genocide and also insinuated the involvement of higher hierarchies including Modi to orchestrate the genocide. Tehelka tapes were found to be authentic in forensic examination and were relied upon by trial courts. SIT didn’t consider these interviews as a lead to suo moto investigate further into the possibility of a larger conspiracy. Therefore, in the protest petition filed before the magistrate, Zakia Jafri requested further investigation u/s 173(8) CrPC to investigate this aspect. It is pertinent to note here that the Supreme Court in its order dt. 12.09.2011 had left it open for the trial court to order further investigation u/s 173(8) CrPC. As already stated, the magistrate rejected the protest petition of Zakia Jafri and accepted the closure report filed by SIT. In the Supreme Court, SIT took the position that extra-judicial confession of the interviewees can’t implicate third persons like Modi, and that the allegation of “local level conspiracy” in Tehelka Sting Operation had nothing to do with the “larger conspiracy” enquired into by the SIT. As stated above, the Supreme Court accepted the stupid argument of SIT that “local level conspiracy” and “larger conspiracy” arising from the same transaction can be investigated in different silos without any link to each other. Corollary to that would be total ignorance of usefulness of interviewees’ statements as a lead to carry further investigation into “larger conspiracy”. The court, as expected, spoke the language of SIT to dismiss Tehelka Sting Operation as having no relevance to “larger conspiracy” and interviewees’ statement having no power to implicate Modi & Co.

Issue is not that SIT didn’t work. The issue is that SIT worked only to exculpate Modi, and the Supreme Court, as stated above, acted as the “caged parrot” of SIT. Sanjiv Bhatt, who has been relegated to a life in prison, could have been the nemesis of Narendra Modi. Anyways, everybody knows the truth. What courts say in their judgments is believed only by the sophomores of law schools.