Day 11 Oral Hearing

Zakia Jafri and Gujarat Riots SIT

On December 2nd, a three-judge Bench comprising Justices Khanwilkar, Maheshwari and Ravikumar began the eleventh day of final hearings in a petition filed by Mrs. Zakia Jafri challenging the SIT’s closure report in the Gujarat Riots case. Mrs. Jafri is the wife of Congress MP Mr. Ehsaan Jafri, who was killed in the Gulberg Society massacre. Mrs. Jafri’s co-petitioner, Teesta Setalvad is the founder of NGO Citizens for Justice and Peace. Read more about the case here.

Today, Senior Advocate Mukul Rohatgi concluded argument on behalf of the SIT, focussing on the submission that the Trial Court and the Gujarat High Court had dealt with the SIT’s findings in detail. He continued to read out portions from the judgments of both Courts in the Gulberg Society case to show that both had found that there was no foundation in the petitioners’ claim that the SIT had left relevant and crucial evidence of a ‘larger conspiracy’ uninvestigated. 

After Mr. Rohatgi, the Bench heard Solicitor General Tushar Mehta on behalf of the State of Gujarat. Mr. Mehta argued that co-petitioner Teesta Setalavad’s motive and character were suspicious, which should lead the Court to dismiss the petition. 

Re-Investigation Will Violate the Constitutional Rights of the Accused

Deliberating whether a re-investigation was warranted in this case, Khanwillkar J stated that Mrs. Jafri had not brought the allegedly incriminating evidence to the Trial Court’s attention in her deposition in the Gulberg Society case. Could she be permitted to initiate ‘side proceedings’ against the accused who had already been acquitted in substantive proceedings? The Bench emphasised the need for finality in criminal proceedings, and stated that the accused have a right to not be tried twice for the same acts. Khanwilkar J stated that the petition must be dealt with on the basis of general principles of criminal law, since allowing re-investigation here may affect future criminal trials. 

Agreeing with the Bench, Mr. Rohatgi pointed out that Mrs. Jafri had breached her duty as a witness by not deposing truthfully before the Trial Court. Since the trial in the Gulberg matter was concluded, the Bench must place an ‘estoppel’ on continued investigations in the case. 

At the end of arguments, Mr. Rohatgi reminded the Court of his earlier submission that the petitioners had submitted doctored documents before the Court to be able to convert Sanjiv Bhatt from an accused person to a ‘star witness’. 

Unreliable Character of Co-Petitioner Setalvad Must be Accounted For

SG Tushar Mehta, appearing for the State of Gujarat, argued that the character and conduct of the accused is of crucial relevance when the Court is exercising its discretion in a Special Leave Petition under Article 136 of the Constitution. He accused co-petitioner Teesta Setalvad of exploiting a widow’s misery to defame the whole state for twenty years. 

SG Mehta referred to the Gujarat High Court’s grant of anticipatory bail to Ms. Setalvad and her husband, Javed Anand, in relation to complaints filed by some riot victims. The victims alleged that the pair had misappropriated funds collected for the victims through their NGOs, Citizens for Justice and Peace and the Sabrang Trust. SG Mehta argued that the pair had used these funds for personal expenses, such as on foreign travel, jewellery, cosmetics and electronics. He suggested that Ms. Setalvad was involved in the case for personal gain. 

SG Mehta repeated Mr. Rohatgi’s argument from prior hearings that Ms. Setalvad had tutored witnesses to give statements against the accused. He also submitted that one of Ms. Setalvad’s former employees, Mr. Rais Khan Aziz Khan Pathan, had moved the Bombay High Court seeking a re-trial in the Best Bakery case. Mr. Pathan had suggested that many witnesses had told him that the events alleged in their affidavits had not actually occurred, and had been fabricated to implicate innocent people. 

 

The Bench will continue to hear Mr. Mehta on December 7th.