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On SIT’s Clean Chit

By R B Sreekumar

16 February, 2012

Media reports on Special Investigation Team’s (SIT) Final Report u/s 173 CRPC on Mrs. Zakiya jafris complaint/FIR against the CM Narendra Modi and 62 others generally confirm the exoneration of nearly all culprits for want of evidence. Indeed, it is flabbergasting and frustrating development for all those who value the Rule of Law, social cohesion and unity of our motherland. If media version is true, the riot victim survivors and those officers who risked their career and marshaled evidence against perpetrators of mass crimes would descend into abysmal depths of agony and depression.

A hypothetical exercise as to what could have been done by the clever brains in SIT for building an impenetrable defense for the brigands liable for riots will be rejoicingly rewarding. Any police officer with the Satanic motive to defend the indefensible accused of the riots would travel through the following road map to denigrate, marginalize and invalidate copious of evidence available on (1) scheming and consummation of anti minority carnage, (2) subversion of the State Administration to delay and deny justice to riot victims and (3) intimidation of witnesses to block the flow of evidence against the State Government functionaries, narrated in Mrs. Zafris FIR.

Witnesses, had, reportedly, tried to prove the conspiracy by the State Govt., by stressing on facts, i.e. (A) CM giving instructions in a late evening meeting on 27-2-2007, of officers at Gandhinagar, to give a free play of Hindu revengefulness, in the context of killing 59 Hindus in Godhra train fire incident. SIT would find contradictions in the semantics of three versions about the above CM’s instructions, in the depositions of the late Haren Pandya (to the Citizens Tribunal), R B Sreekumar and Sanjeev Bhatt (both before the judicial bodies). Moreover, Haren Pandya and Sreekumar were not present in the meeting also. Bhatt’s presence in the CM meeting is also questioned after refusal by his subordinate officer Pant to support Bhatt. (B) Secondly, allegations about bringing dead bodies of Godhra train fire victims to Ahmedabad city, VHP leaders accompanying the bodies and so on would not be deemed to be incriminating as these actions were taken on the request of the relatives of deceased persons by the CM. (C) SIT would also be reluctant to draw any adverse inference on facts like, (1) the Govt. not keeping minutes of meetings chaired by the CM and other senior officers, (2) positioning of Ministers in DGP and CP, Ahmedabad officers on VHP sponsored Bandh day on 28th February, 2002, (3) transfer of officers who took effective actions against the rioters in the thick of riots, i.e. Rahul Sharma, Vivek Shrivastava, M D Antani etc., despite DGP’s objection, (4) rewarding those who collaborated in riots, (5) CM characterizing the riots as operation of the Newton’s Law, (6) failure of the Govt. to take action on media making communally inciting reports and (7) non-implementation on regulations on riot control in Gujarat Police Manual, other Govt. documents, which facilitated riots. These are to be deemed as mere administrative omissions without any malicious motive.

The evidence supporting the charge of subversion of the Administration are, (1) failure to take follow up action on reports from State Intelligence Branch (SIB) for countering the anti-muslim bias of Govt. officials, i.e. police and public prosecutors not performing duties properly and this resulting in damage to cases of riot victims. Pertinently, the prejudice of Modi administration was adversely commented upon by the Apex Court in the orders, (a) transfer of cases to Maharastra for trial, (b) entrusting investigation to CBI, (c) reopening 2000 odd closed cases by Gujarat Police and their reinvestigation, (d) constitution of SIT in March, 2008 for reinvestigation of major carnage cases like Gulbarg Society, Naroda-Patia, Sardarpura etc. and Mrs. Zafri complaint against Modi and 62 others, (e) use of the instruments of reward and punishment to coerce officials to support the hidden anti-minority agenda of government, (f) appointment of pro-VHP advocates as Public Prosecutors, (g) giving false report to the Central Election Commission about Gujarat situation for holding of early Assembly elections, as revealed in the Commission’s Report dated 16th August, 2002, and so on. Significantly the Apex Court observed that Gujarat Administration acted like Nero during riots, while innocents were killed in the streets. Recently, Gujarat High Court also found fault with (on 9th February, 2002) Modi Government for its failure to protect the socio-religious institutions of the minorities. These intentional actions would be viewed by SIT as trivial and not as part of subversion of the Criminal Justice System (C.J.S.), calling for prosecution of those responsible u/s 166, 186 and 187 IPC.

The unchallengeable material evidence, including audio cassette, about intimidation of a senior police officer by Home Department officials and a Government pleader would be bypassed by SIT. The illegal move of the officials for forcing an officer to commit perjury before the Judicial Commission would be misjudged by SIT as part of duties of Home Department officials. Can a witness deposing before a Judicial Commission be tutored and pressurized to suppress facts and speak in favour of the Government, by the officials from his supervisory department ? Public Prosecutors can legally brief prosecution witnesses in a criminal case and not a witness who is free to present any truthful data to the Judicial Commission. Such a witness can be charged only for telling lies on oath. Here is a strange case of Government officials pressurizing a witness to commit perjury. What could be the quality and evidential merit of statements by a witness to a Commission, probing into the culpable role of Government officials in riots, if they are tutored by those in the Administration responsible for genocidal crimes ?

Recommendation by Amicus Curiae, appointed by the Apex Court, Shri Raju Ramachandran could be ignored by the SIT as the Apex Court itself had in his order dt. 12th September, 2011 observed that “It will be open to SIT to obtain from Amicus Curiae copies of his reports submitted to this court.” Thus it is not a binding order. So SIT could appoint its own Legal Advisor and get his stamp of approval on any decision of its choice, on the processing of evidence. Reportedly this was exactly done by SIT.
SIT could also ignore the reported Amicus Curiae’s recommendation to prosecute Modi u/s 153-A IPC for his statement about operation of the Newton’s Law because this was done by the CM after the incident of killing Mr. Ahsan Zafri on 28th February, 2002. Further, the evidence of SIT is exclusively for the case of Gulbarg Society registered by Gujarat Police on 28th February, 2002 and not on Mrs. Zafri’s petition to the Apex Court, which, the court did not treat as a separate FIR.

SIT could freely use its inherent power of discretion on gauging the value of any evidence, material, input or suggestion received by it from anybody as valid and relevant or otherwise. Expectedly, SIT would undermine the credibility of evidence from those who provided data incriminating Narendra Modi and his collaborators, figuring in Zafri’s complaint, like R B Sreekumar, Rahul Sharma and Sanjeev Bhatt – all police officers – on technical and flimsy grounds. Rahul Sharma’s electronic data linking the accused, BJP leaders and police officers could be declared invalid, for want of original material and report to the higher officers. Similarly further investigation on Government documents provided by Sreekumar and Bhatt could be avoided on the grounds of non availability of original papers, generic nature of intelligence reports (though SIB has no accessibility to or authority over case papers for unearthing officer-wise defaults), legality of using classified and privileged documents for investigation and so on – all these actions for the advantage of the accused.

The unconditional offer by Sreekumar and Sanjeev Bhatt to undergo narco and brain finger-print tests could be ignored. These would avoid possibility of getting collateral and corroborative evidence in support of Sreekumar’s semi-official register, containing information on numerous illegal orders by the CM and other higher officers and also on Sanjeev Bhatt’s several legal instruments.

Brilliance of Judges evaluating materials and evidence collected with a pro-accused orientation would not be adequate to bring out the truth behind crimes. Investigation is a skillful art that can be successful only through deep penetrating drive and acumen of seasoned and honest police officers. Strictures from Judiciary also would not nullify pit falls in the collection of evidence and would not be purposeful for prosecuting an accused. In fact, plenty of adverse comments from the Apex Court and Gujarat High Court are available against the Modi Government, but this could evoke only media discussion and has no evidential value. If the criminals responsible for multiple crimes during the riots, are declared innocent, the blame should fall on the investigating agencies, viz. Gujarat Police and SIT and not the Judiciary which had given unambiguous indications about the line and thrust of investigation to be pursued by the police. Presumptions and inferences from Judicial censor had to be probed with insightful competence and material should be collected to confirm the letter and spirit of the Court’s observations. SIT would heedlessly avoid taking recourse to this straight and narrow path, for reasons best known to the SIT officials.

Without any dilution of reverence to the Judiciary, one can assert that even great authors of world renowned detective story literature, like Arthur Conan Doyal, Ian Flaming and Agatha Christy had not created any character of a Judge, astutely driving cops to catch offenders lost in the layers of mystery.

Riot victims feel that SIT had used tools of skill, discernment and caution, available to them for collection, collation, analysis and submission of evidence to the Court in favour of the perpetrators of various crimes in 2002 riots. Will Judiciary be able to sift through the materials before it and adjudicate to deliver long-delayed justice to “the wretched of the earth”, who bore the brunt of 2002 man-made communal holocaust? World at large is waiting for the D day.

(R B Sreekumar is Former Director General of Police, Gujarat )


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