Burden of evidence

The SIT and the amicus curiae reach divergent conclusions about the pogrom in Gujarat in 2002.

in New Delhi

IT will take time and considerable legal acumen to unravel the truth about the post-Godhra pogrom in Gujarat in February 2002.

The main allegation that Chief Minister Narendra Modi, at an official meeting held at his residence in Gandhinagar on the night of February 27, 2002, issued illegal instructions to the State's senior police officers and bureaucrats not to deal with the Hindu rioting mobs remains to be proved conclusively.

The Metropolitan Magistrate, Ahmedabad, M.S. Bhatt, who is examining the complaint of Zakia Ahsan Jafri against Modi and 62 others, has now to deal with two divergent conclusions reached by two Supreme Court-appointed authorities the Special Investigation Team (SIT) and the amicus curiae, Raju Ramachandran about the role of the accused and the need for further investigations.

The amicus curiae (friend of the court), in his report, has found that offences, at this prima facie stage, can be made against Modi under Sections 153A(1)(a) (promoting enmity between different groups on grounds of religion) and (b), 153B(1)(c) (imputations, assertions, prejudicial to national integration), 166 (public servant disobeying law, with intent to cause injury to any person) and 505(2) (statements creating or promoting enmity, hatred and ill will between classes) of the Indian Penal Code. All these offences, if proved, can result in the sentencing of the convict up to three years' imprisonment with fine.

The SIT, in its closure report, however, has concluded that these offences are not made out against Modi as his statements and actions during the carnage do not satisfy the ingredients of these provisions.

The Metropolitan Magistrate made both the reports available to Zakia Jafri on April 7. Zakia Jafri and the Citizens for Justice and Peace, a non-governmental organisation (NGO) offering legal help to the victims of the carnage, have brought these crucial documents to the public domain.

Interpreting evidence

The SIT and the amicus curiae differ on the value of the evidence tendered by Sanjiv Bhatt, a serving Indian Police Service (IPS) officer. Bhatt had stated to the SIT that he was present at the meeting held at the Chief Minister's residence on the night of February 27, 2002, and heard Modi telling the officers that Hindus should be permitted to vent their anger. Bhatt was then the Deputy Commissioner of Police (Intelligence).

The SIT has concluded that Bhatt's version is not reliable because (a) the other senior officers present in the meeting did not support his version; (b) Bhatt's silence for more than nine years appeared to be suspicious; and (c) a number of departmental and criminal proceedings have been instituted by the government against him and hence Bhatt has an axe to grind with the State government. The SIT has also discredited Bhatt by pointing out that his version about a subsequent meeting at the Chief Minister's residence on February 28, 2002, at about 10:30 a.m. cannot be believed because his mobile phone records showed that he was in Ahmedabad at 10:57 a.m. The SIT has also claimed that Bhatt tried to tutor the witnesses Tarachand Yadav and K.D. Panth to support his version.

Ramachandran agrees with the SIT that Bhatt is actively strategising and is in touch with those who would benefit or gain mileage from his testimony. But these factors, in his view, cannot be grounds for ignoring his statement at this stage.

According to Ramachandran, it does not appear very likely that a serving police officer would make, without some basis, such a serious allegation against the Chief Minister. There is no documentary material of any nature whatsoever to establish that Bhatt was not present in the meeting on February 27, 2002, he points out. In the absence of the minutes of the meeting, there is again no documentary material available on who participated in the meeting and what transpired there. Therefore, it is the word of Bhatt against that of the other officers who are senior to him. The SIT has chosen to believe the word of the senior officers, Ramachandran says.

He points out serious inconsistencies in the SIT's conclusion by recalling what it said in its preliminary report, submitted on May 12, 2010. In it, A.K. Malhotra, former Deputy Inspector General (DIG) of the Central Bureau of Investigation (CBI) and a member of the SIT, had cast aspersions on the senior officers present at the Chief Minister's meeting on February 27, 2002. According to this report, some of these officers, who subsequently retired, claimed loss of memory as they did not want to get involved in any controversy; a few others who recently retired with good post-retirement assignments apparently felt obliged to the State government and Modi, and therefore, their testimony lacked credibility; and the public servants still in service, who had been empanelled for higher posts, did not want to come into conflict with politicians in power and incur their wrath.

Ramachandran finds it difficult to accept the SIT's conclusion that Bhatt's statement was motivated because he had an axe to grind with the State government over issues concerning his career. He says it may not be proper to disbelieve Bhatt at this stage only because the other officers, purportedly present at the meeting, did not support his statement. Ramachandran has added that the inordinate delay in Bhatt's revelation about the meeting cannot be the grounds for disbelieving him. He agrees with Bhatt that as an intelligence officer who was privy to a lot of sensitive information, he would make a statement only when he was under a legal obligation to do so.

Circumstantial evidence

Ramachandran relies on the circumstantial evidence, which strengthens Bhatt's claim regarding the Chief Minister's meeting. In the aftermath of the Godhra carnage, a law and order meeting was called by the Chief Minister at 11 p.m. It seems quite natural for an intelligence officer to be called. The Chief Minister would, after all, have to be made aware of the intelligence gathered by the police until then. G.C. Raiger, the then Additional Director General of Police (Intelligence), was on leave that day. The DGP, K. Chakravarthi, did not say that he had gathered intelligence from the office of Raiger. P.C. Upadhyay, the Deputy Commissioner (Political and Communal), was also on leave on February 27, 2002, and Bhatt was looking after the work of the DC. Besides, Raiger had stated to the SIT that Bhatt had accompanied him in the past to meetings called by the Chief Minister, though he said Bhatt used to wait outside with files or information.

Thus, it is quite possible that Bhatt was directed to attend the meeting on 27.02.2002 at the residence of the Chief Minister. The phone call records do not contradict the statement given by Bhatt to the SIT. Considering the important and emergent nature of the meeting, the relative juniority' of Bhatt need not have come in the way of his attending the meeting, especially since the ADGP (Intelligence), Shri Raiger, was not available, Ramachandran writes in his report.

Considering the lapse of time, Ramachandran reasons that the discrepancies cited by the SIT on the exact language used or the time at which the meeting took place at the Chief Minister's residence in Gandhinagar on February 28, 2002 (because Bhatt was in Ahmedabad at 10:57 a.m.) are inevitable. Also significant to Ramachandran is the absence of any material to suggest that Bhatt was either in Ahmedabad or in some place other than Gandhinagar at any time after 10:57 a.m. on February 28. Therefore, he feels that Bhatt needs to be put through the test of cross-examination, as do the others who deny his presence. He clearly disagrees with the SIT's conclusion that Bhatt should be disbelieved at this stage itself.

According to Ramachandran, if Bhatt stands the test of cross-examination, a court of law may, regardless of the fact that other witnesses have not supported his statement, return a finding that Bhatt was indeed present at the meeting on February 27, 2002, and that Modi did make a statement as alleged by Bhatt.

More importantly, by citing legal precedents, Ramachandran explains in his report that the stage for believing or disbelieving a witness arises after trial, that is, once the entire evidence is placed before the court for its consideration. It would not be correct to conclude, at this stage, that Bhatt should be completely disbelieved unless there is clinching material available to the contrary; for example, if there is indisputable material that proves that he was not present at the meeting but was somewhere else. No such material has been found.

The SIT's closure report, however, describes Ramachandran's observation on Bhatt as absurd and as based on conjectures and surmises (page 519). On page 242, the report says that even if such allegations [about Modi's instruction to officers to let Hindus to give vent to their anger] are believed for the sake of argument, mere statement of alleged words within the four walls of a room does not constitute any offence. This has astounded observers familiar with law of evidence as there is no legal basis for such a claim.

Ramachandran has expressed his disagreement with the SIT with regard to the role of M.K. Tandon, the then Joint Commissioner of Police, Ahmedabad, and P.B. Gondia, the then Deputy Commissioner of Police, Ahmedabad.

According to Ramachandran, there was no reason for Tandon to have left the Gulberg/Naroda Patiya area (the scene of the worst carnage) in the absence of a much greater problem elsewhere in his jurisdiction at the relevant time, that is, around 12:40 p.m. Similarly, there was no reason for Tandon not to have rushed back to Gulberg Society after 2 p.m. when he knew that the situation was getting out of control and that the situation in the area where he was situated was not that grave. There was complete absence of any supervision by him, which prima facie shows negligence, Ramachandran has found. There was no reason for Gondia, in the absence of a more critical situation somewhere else, to have left Naroda Patiya at 2:20 p.m. when the situation was explosive and police firing had been resorted to, Ramachandran recorded in his report.

Ramachandran has cited the inconsistency in the SIT's further investigation report, wherein it concluded that both these officers were negligent in their duties, but refrained from invoking Section 304A of the IPC (causing death by negligence, which, if found guilty, would result in imprisonment up to two years). Ramachandran, therefore, has sought a direction to the trial court to consider whether an offence under Section 304A is made out against these officers.

The SIT's closure report, however, pleads that no additional evidence that could help in fixing criminal liability of these two officers, under Section 304A of the IPC, could be brought on record during further investigation.

Political intervention

Ramachandran has also disagreed with the SIT with regard to the role of two Cabinet colleagues of Modi I.K. Jadeja, the then Urban Development Minister, and Ashok Bhatt (who has since passed away), the then Health Minister who had positioned themselves at the State Police Control Room and the Ahmedabad City Police Control Room respectively on February 28, 2002. The SIT first concluded in its preliminary report that no evidence was available to suggest that they had ever interfered with the police operations to bring the situation under control or that they had conspired in the perpetration of the riots. In its further investigation report, however, the SIT has expressed doubt whether Ashok Bhatt was present in the control room. Ramachandran concludes that the preliminary report, citing Ashok Bhatt himself, is more reliable than the further investigation report.

The closure report agrees that these Ministers were present at the control rooms but adds that it cannot be said at this stage that they conspired in the perpetration of riots or did not take any action to control the riots as there is no documentary or oral evidence of any directions given by them to the police officers.

Ramachandran concludes that the very presence of political personalities unconnected with the Home portfolio at the police control rooms is circumstantial evidence of the Chief Minister directing, requesting, or allowing them to be present. Ramachandran also refers to SIT Chairman R.K. Raghavan's earlier finding that their positioning in the police control rooms had, at least, the Chief Minister's tacit approval.

Ramachandran has opined that the SIT's closure report is not binding on the magistrate, who can either take cognisance of the offence and issue process or direct further investigation by the police, after hearing the complainant, Zakia Jafri. The SIT's closure report is weak in legal reasoning; its earnestness in rebutting each and every allegation made by Zakia Jafri against the Modi government and also the conclusions of Ramachandran's report make one wonder whether the Supreme Court erred in entrusting this body with a responsibility that it could not effectively and justly exercise.