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LATEST NEWS UPDATES | A tale of two reports by V Venkatesan

A tale of two reports by V Venkatesan

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published Published on Feb 24, 2012   modified Modified on Feb 24, 2012

There are two serious points of disagreement in the reports of the SIT and the amicus curiae, Raju Ramachandran.

THE Ahmedabad Metropolitan Magistrate, M.S. Bhatt, on February 15, rejected pleas seeking copies of the Supreme Court-appointed Special Investigation Team's (SIT) report on the 2002 Gujarat carnage until March 15 on a technicality – that the SIT needs more time to submit its full report along with all documents, evidence and other details, besides the report of the Supreme Court's amicus curiae, Raju Ramachandran.

There are seemingly intractable disagreements between the SIT's report and that of the amicus curiae, which the Magistrate will have to apply his mind to during this period. The disagreements are, among other things, on the nature of the investigation undertaken so far and the degree of culpability of those named in a complaint on the horrendous events of February 2002.

Zakia Jafri, wife of Congress leader Ehsan Jafri who was killed along with 68 others in the Gulberg Society massacre, had, in her complaint, made 32 specific allegations against 62 persons, including Chief Minister Narendra Modi, functionaries of the Bharatiya Janata Party (BJP), civil servants and police officers.

The most serious allegation was that Modi had convened a meeting at his bungalow in Gandhinagar on February 27, 2002, in which he instructed the Director General of Police (DGP), the Chief Secretary, and other senior officials to allow Hindus to vent their anger at Muslims for the Sabarmati Express train tragedy in Godhra.

The SIT, in a “summary closure report” filed before the Magistrate's court on February 8, reportedly said there was no “prosecutable evidence” against Modi. The SIT's report is yet to be made public though leaked portions of the report have been carried in the media.

The Supreme Court handed the charge of Zakia Jafri's complaint to the SIT in April 2009. After the SIT submitted three interim reports to it, the court felt the need to appoint an amicus curiae to assess the reports independently. Thus, in November 2010 it appointed Raju Ramachandran, Senior Advocate of the Supreme Court, the amicus and gave him a wide mandate, including permission to talk to the witnesses and arrive at an independent conclusion, uninfluenced by the SIT reports.

After the amicus submitted his report, the Supreme Court, on September 12 last year, sent the case to the trial court along with the SIT and amicus reports.

As Raju Ramachandran explained in interviews he gave to the media at that time, the Supreme Court did not suggest lack of trust in the SIT when it appointed him the amicus. The court, he said, only wanted an alternative view to be available to the Magistrate for consideration.

He had told The Hindu: “Under the Criminal Procedure Code, 1973, it is the investigating agency which investigates and files a report in the court. On the other hand, the Supreme Court – in exercise of its powers under Articles 136 and 142 of the Constitution – has made the report of the amicus curiae a relevant factor to be taken into consideration.... This is an additional safeguard which the court has found fit to introduce, which is not done as a matter of course. The SIT would be entitled in law to disagree with the amicus curiae, but... the amicus report will also be before the court. If there is a conflict, it is the court which has the final word, after hearing the complainant.”

The magistrate, therefore, has the onerous responsibility of having to consider the conflict between the SIT and amicus reports carefully.

According to reliable sources, the SIT and amicus reports agree on most aspects of the investigation. They disagree essentially on two issues. One pertains to the treatment of the suspended IPS officer Sanjiv Bhatt's testimony. Bhatt corroborated Zakia Jafri's allegation against Modi, as to what he told the officers present at the meeting held at his residence on February 27, 2002. Bhatt claimed he was present at the meeting, and presented evidence to corroborate it.

The SIT, in its report, considers Bhatt an unreliable witness. But the amicus, according to sources, has suggested that Bhatt should be cross-examined before any conclusion can be reached. The SIT's reluctance to cross-examine Bhatt is inexplicable, especially because it has cast doubts about other senior police officers who were present at the meeting.

Bhatt had filed an affidavit in the Supreme Court in April last year stating that he had informed the SIT about his presence at the said meeting at the Chief Minister's residence and that he was willing to testify after a criminal case was registered. He had also alleged that the SIT was not conducting an impartial and thorough probe into the allegations of a larger conspiracy and administrative complicity behind the carnage.

When the SIT examined Modi on March 25, 2010, he knew what Bhatt had told the SIT earlier. Asked by the SIT who all were present at the meeting on February 27, 2002, Modi named seven officers but added, without any prompting, that Bhatt was not present as this was a high-level meeting.

Bhatt was the Deputy Commissioner of Police in the State Intelligence Bureau at that time. Since the State intelligence chief, G.C. Raigar was on leave, the DGP wanted Bhatt to be present at the meeting.

Of the seven officers Modi claimed were present at the meeting, only one denied Bhatt's presence, while the replies of three officers were vague. Three officers pleaded loss of memory owing to passage of time. They neither confirmed nor denied Bhatt's presence. The SIT itself, according to reports, found these officers unreliable, as three of them had secured post-retirement jobs from the Modi government. Yet, the SIT appears to have concluded that Bhatt's presence at the meeting could not be proved, and therefore, his statement had to be ignored.

Bhatt had made serious allegations against the SIT in his affidavit to the Supreme Court. One is that the SIT was disinclined to follow up important leads he provided on the cover-up operations of high officials of the State administration to undermine the investigation.

Second, he alleged that the SIT chose to intimidate certain witnesses and coerce them into refraining from stating the facts.

The SIT, according to reports, appears to have treated Bhatt as an unreliable witness simply because he now has pro-Congress leanings. The amicus, on the contrary, has seemingly suggested that the weight of the evidence favoured Bhatt, and therefore, his statements ought to be examined with an open mind. The relevant factor to test his reliability would be whether he enjoyed Modi's confidence before that fateful meeting, and the SIT has apparently found nothing to suggest that he did not. Secondly, there is no evidence to suggest that Bhatt was elsewhere and not at the Chief Minister's residence during that meeting.

Reports carried by Tehelka suggest that the amicus has found prosecutable evidence against Modi in the SIT reports. The evidence, according to the amicus report as accessed by Tehelka, may not be sufficient to charge Modi for criminal conspiracy with the rioters. But it does point to prima facie commission of offences under Sections 153A, 153B, 166 and 505 of the Indian Penal Code. These offences are punishable with imprisonment up to three years. The SIT reports, the amicus report has seemingly revealed, referred to Modi's several communally provocative statements, which are hate speeches punishable under the law.

Section 153A relates to promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, and so on, and doing acts prejudicial to the maintenance of harmony. Section 153B pertains to offences such as imputations and assertions prejudicial to national integration.

Section 166 prescribes imprisonment up to one year for public servants found guilty of disobeying the law with intent to cause injury to any person.

Section 505 will apply to anyone who makes or circulates any statement with intent to incite any class or community of persons to commit any offence against any other class or community. It prescribes imprisonment up to three years.

Only when the SIT's closure report becomes public will one know why it disagrees that these provisions cannot be invoked against Modi although it found overwhelming evidence against him to justify these charges.

Informed sources have told Frontline that the amicus report and the SIT report differ on another crucial finding. It is about two senior police officers, P.B. Gondia and M.K. Tandon, against whom serious allegations have been levelled. The SIT has found that Tandon, who was then the Joint Commissioner of Police, Ahmedabad, did not help the victims in Gulberg Society and Naroda Patiya even though he knew that massacres were taking place in those places.

The SIT has found evidence that Tandon had false cases registered in other parts of the city (where he claimed he had gone) to justify his absence in Gulberg Society and Naroda Patiya. Besides, Tandon was in telephonic contact with the accused politicians Jaideep Patel and Mayaben Kodnani, according to previous SIT reports submitted to the Supreme Court.

Gondia was deputy to Tandon and faced similar allegations. Still, the SIT did not find it necessary, apparently on the basis of dubious legal advice, to proceed against Tandon and Gondia. The amicus, informed sources told Frontline, however, had advised criminal prosecution of these two police officers since these were grave allegations.

Frontline, Volume 29, Issue 04, 25 February-09 March, 2012, http://www.frontlineonnet.com/stories/20120309290401000.htm


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