Comment Dated 12.09.2011

In Zakia Jafri case, a special investigation team (SIT) investigated the matter on the directions of the Supreme Court of India (SCI). The SCI also appointed an amicus curiae and directed him to file his report after an independent assessment of the statements of the witnesses who deposed before the SIT. The witnesses also included Sanjeev Bhatt.

As per media reports, the SIT rejected the statement of Sanjeev Bhatt and, in its report filed in the Zakia Jafri case, gave a clean chit to Modi. Sanjeev Bhatt has filed an independent affidavit in the SCI also. Vide order dt. 05.05.11, the SCI didn’t take the affidavit of Sanjeev Bhatt on record and postponed the decision on the same till the report has been filed by the amicus curiae.

I don’t know what is the independent assessment of the amicus curiae wrt the statement of Sanjeev Bhatt, but, whatever may be the assessment, the SIT is not bound to include the report filed by the amicus curiae as part of its report to be filed before the trial court as per the Supreme Court order dated September 12, 2011 in Jakia Nasim Ahesan vs State of Gujarat.

In the words of the SCI: “Before submission of its report, it will be open to the SIT to obtain from the Amicus Curiae copies of his reports submitted to this Court.” And, of course, the SCI has not taken the affidavit filed by Sanjeev Bhatt on record in its order dated September 12, 2011 even.

The most important conclusion emerging from the order dated September 12, 2011 in Jakia Nasim Ahesan vs State of Gujarat is that the SCI has not doubted the SIT. It has given it the final responsibility to file the investigation report before the trial court. This is probably because the independent assessment by the amicus curiae is in sync with the assessment of the SIT.

However, the SCI has directed the trial court to give an opportunity to the complainant to file its protest in case the SIT files a “closure report”. But, that would be of any value only if the amicus curiae has reached a different assessment wrt the statement of Sanjeev Bhatt in Zakia Jafri case. So, it is a clear pro-Modi verdict.

Comment dt. 13.09.2011

In the Vineet Narain vs Union of India, vide judgement dated 30.01.1996, the SCI observed:

However, if in respect of any such person the final report after full investigation is that no prima facie case is made out to proceed further, so that the case must be closed against him, that report must be promptly submitted to this Court for its satisfaction that the concerned authorities have not failed to perform their legal obligations and have reasonably come to such conclusion.

In Zakia Jafri case, the SCI has not finally decided the issue of “closure report” itself but left it for the trial court to decide it. Also, I have not understood the need for keeping the SIT report confidential. BTW, not deciding the issue of “closure report” can also be a ground for review (stare decisis).

Comment dt. 10.04.2012

Till now, I have commented on the basis of media speculations. Now it has become clear that the SIT did file a closure report in the SCI in the Zakia Jafri case. The SCI has made a monumental blunder. It overlooked its own precedence in Vineet Narain vs Union of India vide judgement dt. 30.01.1996. It failed to exercise jurisdiction to reach a “satisfaction that the concerned authorities [i.e. the SIT] have not failed to perform thier legal obligations and have reasonably come to such conclusion [i.e. the conclusion to close the case]”.

Comment dt. 08.05.2012

It is now clear that the amicus curiae reached a conclusion different from that of the SIT in Zakia Jafri case. I am surprised how the SCI could pass such an order. The SCI itself appointed the amicus curiae to draw conclusions with respect to the evidence collected by the SIT. The order is manifestly erroneous.

The SCI has made the whole exercise of appointing the amicus curiae infructuous by leaving it to the SIT to file a closure report before the trial court. It has given liberty to the SIT to draw conclusion distinct from that of the amicus curiae. By doing so, it has subjugated the independent position of the amicus curiae to the discretion of the SIT. This is not only erroneous but also an insult of the bar.

The SIT has overruled the opinions reached by the amicus curiae in its closure report filed before the trial court. The SIT has also submitted the amicus curiae’s report before the trial court. This is a very foolish thing to do because the report has no relevance before the trial court.

The trial court is not obliged to consider the opinions reached by the amicus curiae. It is a different matter that the trial court may also reach the same opinions as those reached by the amicus curiae. But, if the trial court reaches a different opinion, it will be an additional insult of the amicus curiae.

I think the SCI erred very badly in the order dated September 12, 2011 in Jakia Nasim Ahesan vs State of Gujarat by first not reaching the decision itself with respect to the closure report filed by the SIT, and secondly, and more importantly, by not giving proper directions to the SIT to not mention or include the report of the amicus curiae before the trial court in case the closure report is filed by it, thereby making the office of the amicus curiae appointed in the SCI as the office of the trial court as well.

Now the only way out for the SCI is to suo moto review its order. It should itself reach a decision with respect to the closure report filed by the SIT. If not so done, it is an insult of the bar.

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