Nov 10, 2021
Sibal : A part of the transcripts were played by aajtak . The matter had gone to the Gujarat High Court. The High Court held that the transcripts (of Tehalka sting) are authentic. I will show the High Court judgment.
Bench says that the proper course to proceed would be to analyze the points raised in the protest petition and to see how the Magistrate dealt with them. "Otherwise we will be lost..in 20,000 pages", Justice Khanwilkar says.
Bench - There is no 161 statement in your complaint. Only preliminary investigation done in your case.
Sibal - That’s right. But the investigation was to be done by SIT. Whether Tehelka tapes and other evidence is sufficient to take cognisance is for the Magistrate to decide.
Sibal : There are huge materials showing hate speech, again not acted upon (by the SIT).
Sibal : In case of conspiracy, there won't be direct evidence. It can only be inferred from circumstances, for which you have to investigate, gather evidence, visit spot, record statements. None of these done by the SIT.
Sibal : Jaideep Patel's mobile phone is not even seized. He must have made several phone calls. If you don't seize his phone, what investigation have you done?
Sibal says that the sting tapes showed stockpiling of arms and ammunition by Bajrangdal, VHP and Sangh Parivar members and conspiracy to gather diesel bombs and pipe bombs prior to Feb 27, 2002.
Sibal : Where did the conspirators meet? When did the consignments arrive? Most importantly, who paid for them?
Sibal says that tapes suggested conspiracy to smuggle dynamite bombs to Ahmedabad from quarry operated by a VHP worker. These aspects not investigated by the SIT, Sibal says.
Sibal : Testimony of Sreekumar(then Gujarat ADGP) was rejected by the SIT on the ground that he was denied promotion.. his testimony was corroborated by other officers and hence it could not have been rejected..
Sibal : Then there is state intelligence report..that the Kar Sevaks who were returning were carrying Trishuls and there was communal tension.
Sibal : The point is...none of these were looked at.
Sibal : With the greatest respect, no court, whether it is the Magistrate, High Court or Supreme Court can come to a conclusion whether there was conspiracy or not without an investigation.
Sibal : There has to be an investigation. That is all our case about. If there is no investigation, what was the purpose of the Supreme Court constituting the SIT?
Sibal : Curfew was declared immediately in Godhra..but in Ahmedabad, curfew was not declared until 12. And thousands of people had gathered by 7 morning. Any police officer would have immediately declared a curfew so that violence could be avoided.
Sibal : In Naroda Patiya case, the man was convicted on the basis of these sting tapes. But qua other cases, these tapes are not considered.
Bench to continue hearing at 2 after lunch break.
Nov 10, 2021
Bench : We don't want to go into the individual cases. We are not going to analyze individual roles. What is the legal overview?
Sibal : My submission is, this particular sting has been relied on by the SIT in prosecution in other cases, in Naroda Patiya case.
In Gujarat riots case hearing, Kapil Sibal gets emotional talking about loss of his maternal parents during Partition. Says communal violence is like a lava erupting from volcano, which leaves the ground fertile for future revenge.
Kapil Sibal: Now what I am going to demonstrate is that SIT did not do any investigation. I am gonna prove that through those documents. Bring for your kind consideration Article 21 of the Constitution is a mandate for the protection of liberty.
Another aspect is the mandate for deprivation of liberty. That procedure established by law is the CrPC. It has a negative as well as a positive connotation.
Procedure has to be fair and reasonable. The question is has the SIT followed procedure established by law in dealing with evidence before them. This also provides the rationale for a protest petition. Why were protest petitions allowed.Because the real affected party had no say.
In Bhagwan Singh’s case, the court said No, the real complainant is to be heard and if the investigation is not proper he can approach the court and protest and the court must look at this evidence. The citation is (1985) 2 SCC 5 37.
The first judgment on the subject of the protest petition was AIR 1967 SC 117, Abhinandan Jha, Then came Bhagwan Singh. Kindly look at Para 4.
Milords kindly note that Mr. Jafri’s wife filed the complaint, she was also an injured: KapilSibal
Now, this judgment has been followed throughout. This was to show that I was in a dual capacity. That is why this court said to investigate everything. This is (2011)12 SCC 302, again Para 10 and 11 - KapilSibal
Sibal: This is in respect of my complaint which talks about a larger conspiracy. The amicus curiae was dealing with everything not this particular indiciden. If Magistrate said,
Bench: Other day you referred to dates. It cannot be 173(2).
Sibal - the complaint that came up before court had nothing to do with the charge sheet.
Bench - In that pending case, a complaint had to be filed. Is it not?
Sibal - No, Your Lordship Para 11 of this judgment will clarify. What happened was Court said everything that happened on 08.06.2006 complaint had to be considered.
Bench: Was any fresh complaint registered, This was presented in the existing proceeding.
Sibal - The Gulberga Trial was going before the sessions court. This was sent to the magistrate.
Bench- We are not clear on that fact. Show us the independent proceeding based on your complaint.
Sibal - Kindly see NHRC v. State of Gujarat pg 74 of Vol 4, come to page 79
Bench - It is not a new case registered. It was not ordered to be registered. The final report was to be submitted there.
Bench - Protest petition is in which complaint. It is not present independently.
KapilSibal - I am not disputing that my complaint was not registered.
Bench - Reading 10 and 11 there was no direction of this Court to register your complaint as a separate case. Protest Petition can be filed only after the closure report is filed.
Sibal - Let me assume that your Lordship is correct then SIT has given closure for every matter, deals with every allegation. My Lords maybe we are wrong in interpreting the judgment. This is not how SIT or amicus viewed it.
Bench - Have you referred to the fresh proceeding in your SLP.
Sibal - Kindly See Vol 14. Let be clear on the facts. It deals with every allegation.
Bench - Who is appearing for SIT?
Bench To Rohatgi: Kindly clarify. This report is in which crime, in which proceeding.
Rohatgi - It is like this there were 9 major cases, 9 FIRs, Gulberg is the case where the husband was killed. Then came SIT 2008-09. They took up all major cases and filed chargesheets in each of those cases.
Rohatgi- 4455 supplementary chargesheet were filed. Her complaint was not converted into FIR, she went to HC. HC asked to file a complaint. She came to SC against the order of HC. There was a pending matter of NHRC.
Her SLP was kind of clubbed together. Also an order was passed in which SC said all aspects to be investigated by SIT. After consideration, SIT came to conclusion that apart from the chargesheet filed there was not material in the matter of 2006 to take it forward.
In that sense it was a closure
Bench - That report is filed in CR 67 of 2002. Is it correct to say that?
Rohatgi - Yes, your Lordship is correct. There was no direction to file FIR.
Bench - This judgment of 2011 takes note of the complaint. What this court directed is to the SIT to look into the matter in the proceeding of CR 67 of 2002.
Sibal - Look into the allegation and file report under Magistrate. No matter was pending before Magistrate.
Sibal - SIT was constituted for all the matters, not for
Rohatgi - The matter had to go back to Court that took cognisance in CR 67 of 2002.
Sibal - What Magistrate had to do is either accept the closure report or not. If it was only Gulberga then what was SIT doing investigating everything.
Bench - The opening part of the report mentions CR 67 of 2002.
Sibal - It is related to a larger conspiracy.
Bench - The basic question is where was it filed? It was in CR 67. This is our understanding of the 2011 judgment of this Court.
Sibal - Kidly come to pg 79 of Vol 4. Pg 78. SIT was not only for Gulberg.
Bench - This is not your main grievance. Let’s come to that. SIT not investigating and Magistrate not taking note of the same.
Sibal - Kindly come to 881 in our matter. This is the SLP against the HC order. Historically for all cases, when it came to my complaint, take a call.
Bench - Whether any report was given with respect to order of 27th April .
Sibal - Yes, in Vol 11.
Rohatgi - When the report which was given, SC said go to Magistrate concerned and same report was given to Magistrate.
Sibal - When this was filed before Magistrate, this was apart from that. The Gulberg matter was going at Sessions Court.
Sibal : Let’s move onto the facts. In Vol 11 in one of such reports was there. This report will show that the report was not limited to Gulberga. Pg 142 of my SLP. Kindly see 144 - reconstitution of SIT, Second para.
Sibal : They(SIT) had to send it(the report) to some Magistrate, probably because she was the resident there it was sent to the concerned Magistrate dealing with the Gulberg case.
Sibal : This in 2002 incident, SIT is saying these are the problems(people not coming forward to give evidence). This is the SIT telling the SC that when we looking at the complaint no one is cooperating in 2009.
Sibal - This culminates into the Closure Report.
Bench - This is preliminary enquiry before the SC. After SC order when Closure report was presented, when was this presented to Magistrate. It has to be after 2011.
Sibal - I shall give it to you. 08.02.2012, pg P Vol 1 of the SLP.
Bench - Perhaps 161 statements were recorded.
Sibal - No Milords.
Rohatgi - This was a unique procedure. Investigation follows FIR. Here FIR and charge sheets were parallely going on . Technically it was not 161.Investigation was in the nature of preliminary.
Sibal - No investigation was done. No 161 statements.
Sibal saying SIT did no investigation - You don't record statements. Accepted statement of accused and file closure report. No phone seized, never examined CDR Record, never checks why records were destroyed. Never checked why policemen were standing by.
Sibal says the most "damaging and concerting" fact was that the SIT ignored the sting operation reports of Tehalka which were treated as extra-judicial confession in other proceedings such as Naroda Patiya case.
Sibal : The most damaging, most disconcerting evidence is the sting operation, which tape was to be authenticated by CBI used in other proceedings, treated as extra judicial confession and resulted in conviction. That was not even looked at. Let me start with that.
Sibal refers to Tehalka sting reports : Now Milords. Kindly look at Vol. VA, pg 291. These are transcripts of recordings. Tapes authenticated by CBI but not touched by SIT at all.
Sibal reads from the Tehalka sting report about an accused talking about making bombs and using it in communal riots.
"SIT does not arrest him. Doesn't record his statement. Does not visit the spot. These tapes are authenticated by the Gujarat HC..in the Naroda Patiya case".
Justice Khanwilkar asks if the statements of the person in the Tehalka sting report reveal anything about "larger conspiracy" from the top.
Sibal : The fact is, this was not investigated by the SIT. How do you establish larger conspiracy?
Sibal says he does not want to read out aloud the statements in the sting report and requests the bench to read it.
Sibal : The point is, the SIT did not investigate this. The SIT did not arrest any of these persons.
Sibal : My concern is really for the future. Let me put it in colourful terms. Communal violence is like lava erupting from volcano, be it by any community. It is institutionalized violence. It leaves the earth fertile for future revenge.
Sibal (choking with emotions, almost teary eyed) : I lost my maternal parents...in Pakistan.. I am a victim of the same. I don't want to accuse A or B. A message must be sent to the world that this cannot be tolerated.
Sibal : What was the SIT doing despite all these evidence?
Bench asks what was SIT response to Tehalka sting reports.
"They discarded it by terming it extra-judicial confession", Sibal.
Bench - Were these transcripts considered in the closure report?
Sibal - No, the Closure report discards it. Anil Patel is not at all mentioned. This is regarding Babu Bajrangi whose transcript I have read. Instead of arresting Babu Bajrangi they accept what he has said.