Courting justice

In whose favour did the Supreme Court’s September 12 order in the Zakia Jafri case go? Was it Gujarat chief minister Narendra Modi or Ms Jafri? Too early to say one way or the other.
The starting point of Ms Jafri’s appeal to the Supreme Court was her private complaint, dated June 8, 2006, seeking prosecution of Mr Modi and 61 others for allegedly orchestrating the post-Godhra communal riots in connivance with police officials and senior bureaucrats in which her husband Ehsan Jafri, former member of Parliament, was killed in the Gulberg Society carnage.

Since the original FIR of 2002, relating to the same incident, made no mention of the big wigs, Ms Jafri wanted her complaint to be registered as a fresh FIR. The police declined to take cognisance of her complaint. Ms Jafri then petitioned the Gujarat high court to direct the director general of police to appoint an independent agency to examine her complaint. On the rejection of that petition on November 2, 2007, she approached the Supreme Court in early 2008.
The court, in 2010, directed the amicus curiae — a friend of the court, senior advocate Raju Ramachandran — to examine the reports submitted from time to time by the Special Investigation Team (SIT, appointed by the Supreme Court in 2008 under the chairmanship of former CBI director R.K. Raghavan), and “have his own independent assessment of the statements of the witnesses recorded by the SIT and submit his comments thereon”.
As directed by the court, Mr Ramachandran interacted with the witnesses and submitted his report on July 25, 2011.
On September 12, the three-judge bench of Justices D.K. Jain, P. Sathasivam and Aftab Alam directed Mr Raghavan to forward the SIT’s final report, along with the entire material collected by it, including the report of the amicus curiae, to the magistrate before whom the case arising out of the original FIR is pending.
The final report of the SIT will take the place of what is termed a “chargesheet” filed by an investigating officer in a criminal case (under Sec. 173(2) of the Code of Criminal Procedure). That report will have a section titled “whether any offence appears to have been committed, and if so, by whom?” If the name of Mr Modi finds a place in that section, he will be an accused and be dealt with accordingly. If his name is missing, he would have successfully escaped one more shot aimed at him. So the crucial day will be when the SIT’s report is opened by the magistrate.
Any person named as an accused has recourse to the remedies available under the CrPC, like taking steps to plead for a discharge or for quashing of the charges, if and when they are framed. In appropriate cases, the court can quash the FIR itself, as was done by the apex court in 1991 in the case of former chief minister of Haryana, Bhajan Lal.
The SIT as well as the amicus curiae would surely have examined the subject matter of Ms Jafri’s complaint because the Supreme Court had specifically directed the SIT to “look into it”. If the SIT’s final report does not mention Mr Modi, the complainant, Ms Jafri, will be given an opportunity to argue before the magistrate, pointing out the errors in the SIT report, and if the magistrate finds that further investigation is required, he may direct the investigating officer or the SIT itself to carry out further investigation. It is only after these reports are presented to the magistrate that one will be able to say who stands where.
One thing, however, is clear — that Ms Jafri’s desire to get her complaint examined by an independent agency stands fully satisfied. There can be no better agency than the SIT, hand-picked as it was by the Supreme Court. Added to this, the amicus curiae, an experienced lawyer of impeccable integrity, examined the SIT’s reports and additional material. No complainant could ask for more.

During the course of monitoring Gujarat riot-related cases it was established that several affidavits filed by “victims” before the court had been “procured” for money or other inducements. Zaheera Sheikh, a star witness, showed her ability to make contradictory statements with the dexterity of a professional figure skater. Many of the affidavits were stereotypes — confirming the suspicion that they were products of the same factory, and the court was persuaded to act on these. We the people await the SIT report to nail these polluters of the judicial process.
The causes for rejoicing at the Supreme Court’s recent order, however, are many: Firstly, the apex court will no longer be breathing down the necks of the magistrate and the sessions court, allowing them to perform their functions in accordance with the law. Not many subordinate courts administering criminal justice in India can boast of such a luxury. Secondly, the stigma attached to the entire judiciary of Gujarat, especially since the Best Bakery case, has been washed clean. As a matter of fact, in July 2011, another bench of the apex court, headed by Justice Kabir, rejected a request for transfer of a criminal trial (Jahid Sheikh) from Gujarat to another state on the precedent of Best Bakery. The apex court has now deftly retracted itself from the swamp into which it led itself in 2004, naively believing the sob stories of professional liars and the abetting busybodies behind them.
And finally, the court’s order was a puritan’s delight; it was a lesson in how to deal with cases of high political overtones without shrills or frills. The court reiterated the law in these words: “Once the court is satisfied that a proper investigation has been carried out, it would not venture to take over the functions of the magistrate or pass any order which would interfere with his judicial functions. Constitutional scheme of this country envisages dispute resolution mechanism. No authority, save and except a superior court in the hierarchy of judiciary, can issue any direction which takes away the discretionary jurisdiction of any court of law”. Everyone, including judges at all levels, should read this passage again and again.

K.N. Bhat is a senior advocate of the Supreme Court and former additional solicitor-general of India

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