CITIZENS FOR JUSTICE AND PEACE
Note
for Media June 26-28 2013
Arguments on behalf of Zakia Ahsan Jafri
assisted by Citizens for Justice and Peace in the Zakia Jafri vs Narendra Modi
& 59 Others Crriminal Case.
Advocates Sanjay Parikh assisted by Adv
Mihir Desai initiated the arguments. The
entire team of 14 CJP lawyers was there in full force to assist the effort
along with CJP Secretary Teesta Setalvad.
Do please keep a Bird s eye view on Arguments in this case as it is a matter of national importance concerning Accountability for State Perpetrated Mass Crimes.
Do please keep a Bird s eye view on Arguments in this case as it is a matter of national importance concerning Accountability for State Perpetrated Mass Crimes.
Being heard before the Metropolitan
Magistrate 11th Court, Ahmedabad
June
28 2013
The Accused No. 1 Narendra Modi s mindset
against the minority Muslim community can be traced out from his being an his
supporting the demolition of the Babri Masjid. The State Intelligence Bureau (
Messages contained in the SIT documents) had been clearly and consistently
informing the State Home Minister from 7.2.2002 onwards that members of
the VHP, BD and BJP were preparing
themselves armed with trishuls etc to go to Ayodhya to celebrate the Mahayagya.
This Mahayayga was meant for building the Ram temple at the Babri Masjid site. The
Sabarmati express left Ahmedabad on 24.2.2002 (night) and the same train was
returning from Ayodhya. The Sabarmati Express started from Faizabad-Ayodhya on morning
of 26th February 2002 Further reports of the state intelligence
reveal that the provocative slogan shouting against Muslims was taking place
throughout the train journey. In particular incidents took place a two places
including Rudali where stabbing and attacks also followed.
7.2.2002 State Intelligence Bureau messages from PB
Upadhyaya to the DGP, Gujarat, State Home Department and all Police stations of
Gujarat warning of the communal mobilisations especially near temples,
recruitment of volunteers for the programmes and aggressive posturing in
Gujarat.
__________________________________________________________________________
Nirant, Juhu Tara Road
teesteesta@gmail.com
12.2.2002 SIB Message (PB Upadhyaya) to DGP Uttar Pradesh
also intimating that 3,000 Kar Sevaks from Gujarat
will reach Ayodhya on 23.2.2002 to participate in the Mahayagna.
12.2.2002 Messaage from SIB records that Praveen Togadia
announced at a press conference that there would be active participation by VHP
cadres in the Mahaygana would be enthusiastic. Message sent to all Police
stations in Gujarat , DGP and Home department
Gandhinagar warns of the possible repercussions of this.
13.2.2002 PB Upadhyaya message to all CPs, SSPS in
districts and Home Secretary Gandhinagar intimating decision of VHP that Ram
Mandir would be constructed at any cost after 12.3.2002 and enrolment of Ram
Bhaktas would start from all over the country from 1.3.2002.
20.2.2002 DCP-INT (Communal) PB Upadhya SIB Message to
DGP, SP, Western Railway Vadodara that 3,000 Kar Sevaks would be leaving on
22.2.2002 from Ahmedabad station.
21.2.2002 SIB Message states that Kar Sevaks
are going to travel on a train going to Faizabad (Ayodhya) and therefore in
respective areas as well as in the railway stations it is necessary to provide
bandobast. Take steps to ensure that no untoward incidents take place. Message
sent by PB Upadhyaya (SIB-Int-Communa) to DGP, CPS, SPS and Home Department
Gandhinagar.
2l.2.2002 SIB-Int
–Communal PB Upadhya sends a Message
to DGP Lucknow about the departure of VHP and Bajrang Dal
activists (3,000) between 22.2.2002 and 27.2002 under the leadership of Dilip
Trivedi for re-building the Ram temple from 15,3,2002
23.2.2002 SSP Faizabad and Home secretary Gandhinagar
about 2800 VHP and Bajrang Dal & Durga Vahini activists under Dilip Trivedi
and Kum Malabehn Rawal have left Ahmedabad by Sabarmati Express for Ayodhya on
22.2.2002 at 2050 hours.
24.2.2002 RSS, VHP supported by the BJP had decided to
have Maha Yagna at Ayodhya (Faizabad) as a sequel to the demolition of the
Babri Masjid which was announced by Praveen Togadia, international general
secretary of the VHP. Further announcement was that construction of Ram temple
will commence from 12.3.2002 onwards. Pursuant to this announcement, the
following activities commenced
25.2.2002 DCP Communal State Intelligence PB Upadhya
informing SSPs Faizabad and Home Secretariat Gandhinagar that 1900 VHP and
Bajrang Dal activists under the leadership of Vijay Pramani, Hareshbhai Bhatt
and Khemrajbhai Desai have left Vadodara by Sabarmati Express train for Ayodhya
on 24.2.2002 at 23.10 hours.
27.2.2002 Message by Sanjiv Bhatt DCP Int Communal to SSP
Faizabad and Home Secretariat Gandhinagar that 1,500 VHP, Bajrang Dal and Durga
Vahini activists including Narendrabhai Vyas activists have left Ahmedabad for
participating in Mahajhap Majayagna by Sabarmati Express for Ayodhya-Faizabad
at 26.2.2002
All message are part
of the SIT records at Annexure III, File XXXIV D-176 given to the Court as A
Colly record as Annexure A Colly.
Though the home department of the State
headed by A-1 Narendra Modi was aware of this fact and was also aware of the fact
that the same provocative slogan shouting will take place at other railway
stations including Godhra, no action was taken.
The Godhra incident that took place
between on 27.2.2002. Information was sent to the DM to the state functionaries
(CMO, HD and Revenue department) by 9 a.m. (AK Malhotra’s Report dated
12.5.2010 filed before the Hon’ble Supreme Court under Para Allegation IV, Page
12). Another message was sent by DCP-Int (Communal) Sanjiv Bhatt about slogan
shoutin g. The fax message specifically mentioned provocative slogan shouting
by karsevaks.
26.2.2002 A
group of Kar Sevaks left Faizabad on 26.2.2002 (early morning) which was
supposed to reach Godhra around 2 a.m. of 27.2.2002. The train was about five hours late. As per
Jayanti Ravi in her fax communication the train Reached Godhra at 7.15 a.m and
left Godhra at 7.20 a.m. The same fax says that after about half a kilometre
the Train was stopped near Signal Falia and set on fire.
Following messages/information was sent:-
1.
Fax Message dated 27.2.2002 sent by DM Janati Ravi ( which
according to SIT Repoert, AK Malhotra, 12.5.2010) to Chief Minister’s Office,
Home Department and Revenue Department.It states that in the train which left
Godhra at 7.20 a.m.,the Kar Sevaks were shouting slogans. Since the area around
railway station is a Muslim area, hearing these slogans, crowds of Muslims
gathered and started throwing stones. Thereafter the train stopped again and
was set on fire.
2.
Sanjiv Bhatt, an officer with the State Intelligence, deputing
as DCP-Communal on 27.2.2002 sends a message to the Chief Secretary, Home
Secretariat and Chief Minister, MOS Home and DGP Gandhinagar. The message
states that on 27.2.2002 the Sabarmati Express travelling from Ayodhya to
Ahmedabad reached Godhra at 7.15 a.m. At that time in the train the Kar Sevaks
coming from Ayodhya were shouting slogans. Since the area is dominated by
Muslims, the crowd started throwing stones and Coach Nos 6 was set on fire. At
10.55 a.m. in chowkey nos 1-7 ares of Godhra town, curfew has been imposed. Kar
Sevaks are members of VHP. (Annexure B
Colly at Annexure III, File XLI at Serial in SIT record handed over to the
Court)
3.
Note: Before the train reached Godhra,
violent incident had taken place at 2 railway stations including Rudauli. The incident at Godhra took place
between 7.30 to 8.00 a.m. The train left
Godhra around 11.30 a.m. and after about an hour, reached Vadodara at around
1-1.30 p.m. At Vadodara, two persons
were assaulted by the Kar Sevaks, in which one Abdul Rashid died. Another two
persons were injured. From Vadodara, the
train reached Anand at about 2.10 p.m.
Again, violent incident took
place in which one person died and two persons were injured. All those attacked and killed were
Muslims. From Anand, the train reached
Ahmedabad railway station at about 3.00 p.m.
Violent incidents also took place at Ahmedabad where bloodthirsty
slogans were also raised threatening revenge against Muslims. Stabbings, stone
pelting and other incidents also took place. No curfew was declared in
Ahmedabad or Vadodara on 27.2.2002.
Presenting
a detailed List of Dates and Note on the Mindset of Narendra Modi, advocate
Sanjay Parikh argued that Conspiracy is substantive offence
introduced by criminal law Amendment 1913. Conspiring to commit an offence,
itself is an offence.Conspiracy hatched in in secrecy; difficult to adduce
direct evidence; prosecution can only relay on different acts of various
parties to infer what they have done pursuant to their common plan. Citing from
important judgements of the Supreme Court Parikh argued that the criminal
offence of conspiracy can be
* Mostly circumstantial evidence.
* Actual meeting of two persons not
necessary.
* Actual words of conspiracy not necessary
to be proved.
* A tacit understanding between the
conspirators is enough.
* If several offences committed pursuance
to conspiracy, all conspirators irrespective of whether they actively
participate in the commission of offence, will be liable.
* Very fact of conspiracy constitutes an
offence, not necessary that anything was done in pursuance thereof
* Sec 34- common intention and
constructive liability for offence
committed, different from conspiracy.
* Conspiracy – mere agreement enough.
Abetment- an act or illegal omission must take place.
* From the acts and conduct of the
parties, conspiracy can be inferred one performing one part of the act, the
other performing other parts of the act.
*
Conspiracy can be proved by surrounding circumstance and the conduct of the
accused that before and after the alleged commission of crime.
Therefore despite receiving the fax from
DM Godhra that it was the provocative sloganeering of the VHP men (Kar sevaks)
that had led to a skirmish following the burning of the S-6 Sabarmati Coach at
Godhra, A-1 as home minister instead of appealing for calm and meeting with
police officials, A-1 Modi, manifesting criminal intent and conspiracy, did two
things:-
a) He called the VHP Gujarat general
secretary to go to Godhra. What Jaideep Patel did in Godhra was to instigate
other VHP men and Hindus against the Muslims. Therefore,Modi conspired with
Jaideep Patel to instigate negative and aggressive feelings of RSS, VHP workers
against Muslims. Otherwise, there was no need for him to inform the VHP man
(and be in close contact with him) knowing fully well that after the Godhra
incident, tensions may escalate and what was required was restraint and
specific measures to strengthen the law and order situation. He, therefore
commits an omission in not discharging his duty; he in fact by his conduct
allowed communal tension to escalate.
(Jaideep Patel is now facing trial for his direct involvement in the
Naroda Gaam carnage).
b) The other part of conspiracy is in
suppressing the official intimation that karsevaks were shouting provocative
slogans. He convened a meeting of MOS
Home Zadaphiya and other state officials to prepare a joint statement where the
provocative sloganeering by karsevaks was not mentioned. Zadaphiya read out
this statement in the assembly. The background of Zadaphiya is that he was also
a VHP member. His statement to the SIT (24.9.2009) states that a VHP activist
Ashwinbhai Patel who was on the train had informed Zadaphiya of the incident at
7.30 a.m. This is in fact even before the time of the actual train burning.
9.39 – 9.41 am,
27.2.2002 Two telephone calls were
made from the telephone of P.A. Mr. A.P. Patel of Narendra Modi, Chief
Minister, from his mobile no. 09825037439 to Jaydeep Patel, General Secretary
of VHP, Gujarat State
10.30 am,
27.2.2002 A meeting took place at
the residence of Mr. Narendra Modi at Gandhinagar. In the said meeting, Mr.
Gordhan Zadafiya (A-5), Mr. Ashok Narayan (A-28), Mr. K. Chakravarthi (A-25),
Mr. P.C. Pandey (A-29) and other persons of Chief Minsiter’s Secretariat were
present. In this meeting, a note was
prepared on behalf of the Home Department. In the note, the fact that Kar
Sevaks were shouting provocative slogans, was purposefully not mentioned. This
is the note which was ultimately read out in Vidhan Sabha at 1.00 p.m. by Mr.
Gordhan Zadafiya. (Annexure D at
Annexure III, File XLI, Serial Nos 5 of the SIT Papers)
Around
10.30 am,
27.2.2002 Mr.
Ashok Bhatt, Minister of Health, left for Godhra and reached Godhra around 1.00
p.m. He had telephonic conversations
with A-1 several times especially concerning the hastily conducted post mortems
of the victims of the Godhra tragedy.
Around
12.30 pm,
27.2.2002
Declaration of bandh by 12.00 p.m. called by
VHP.This was supported by the ruling
BJP.
(Annexure
E Colly at Annexure III, File XIX, D-161 of the Sit papers)
1.00
pm, 27.2.2002 In the Assembly
proceedings, a Motion relating to Godhra incident was moved by Mr. Punjabhai
Vansh who was not present. Therefore Mrs. Mayaben Kodnani (A-16), M.L.A. from
Naroda Patiya, spoke on the issue Mr. Gordhan Zadafiya, as mentioned above, has
also read out the note, which was prepared in the meeting at Chief Minister’s
residence at 10.30.
An important fact is the statement given
by a senior minister, Sureshbhai Mehta in Modi s cabinet to the SIT (
15.08.2009)who was sitting next to A-1 in the Assembly when Modi said “Hindus should wake up now.” In the
Vidhan Sabha, Mr. Suresh Mehta, Minister of Industries, was sitting next to Mr.
Narendra Modi (A-1). Mr. Suresh Mehta
has given a statement to the S.I.T. on 15.8.2009. In the said statement, he said “I was sitting
by the side of Mr. Narendra Modi, Chief Minister, who remarked that ‘Hindus
should wake up now.’” (Statement of Suresh Mehta at Annexure F at Annexure I Volume I Serial Nos 13 of the SIT Papers)
This shows the mindset of A-1 Modi against
Muslims and that he wanted targeted violence against Muslims to commence and,
moreoever, that the karsevaks should not be blamed. He had also been elected
through a by-election days before the Godhra incident when heavy voting by the
Muslim minority at Rajkot
c) Another important aspect is that when
the statement was made in the State Assembly at 1 p.m. VHP had already
announced a Gujarat bandh by about 12 noon which was supported by the ruling
BJP. The state government did not oppose it. No statement is made in the
Assembly that the state government is opposing the Bandh. A-1 was, therefore,
aware that the Bandh would give further opportunities for provocation and give
a free hand to the RSS, VHP and Bajrang Dal to lead violent mobs and vent of
their ire on innicent Muslims, yet officially, neither as Home Minister, nor as
Chief Minister, did he make any statement to ensure that strict preventive action
is take, arrests of communal miscreats are made etc, in spite of the State
Intelligence field reports and warnings.
The Bandh Call was, therefore, part of the
conspiracy as it served two purposes:
1. Allowing RSS/VHP/BD/BJP men to behave
aggressively and indulge in unlawfully violent activities and
2. Using the police machinery to clear
public places and ordinary movement so that aggressive mobs of these
organisations could target minority populations and establishments (thereby
neutralizing ordinary peoples and movements);
3. Not allowing the police and other state
machinery to take action i.e. omission from discharging their lawful and
statutory duties.
4. Deliberately no Curfew is declared in
Ahmedabad, Vadodara and many parts of the state despite clearcut warning
signals all through 27.2.2002 and no arrests are made.
No official communication was given to
observe law and order and maintain peace and calm in Gujarat .
Advocate Parikh also made detailed
arguments on the Crime of Abetment stating that
I. Bare
agreement to commit offence in covered by Sec 120A. But for abetment there
should be some act or illegal omission in pursuance of that aspiring
conspiracy. Commission of actual crime
is not necessary.
II. In abetment by illegal omission, it is
to be shown that the accused intentionally aided the commission of crime by his
non-interference.
III. Omission involves breach of legal
obligation.
IV.
Non-intereference when there is duty to interfere amounts to abetment.
V.
A person abets by aiding, when by any act done either prior to, or at
the time of the commission of an act, he intends to facilitate and does in fact
facilitate, the commission thereof.
VI. Rendering any kind of assistance
constitutes abetment
VII. Person himself may not act but he may
instigate another to put in executing his criminal intention.
VIII. ‘Instigate’ includes stimulating,
suggesting by language or expression or hints or encouragement or advice to
act.
IX. Words amounting to permission may fall
under instigation
Besides,
advocates for Smt Jafri also made extensive arguments on the Scope and Powers
of a Magistrate to take cognizance of offences that are serious and are an
offence against society. Cognizance means becoming aware of and ‘to take notice
of judicially’. The cognizance is taken of an offence and not of an offender.
At this stage the court has to be satisfied that material on record exists to
take cognisance and not that it is sufficient for conviction. (See Jagdish Ram, 2004 4 SCC, 432 Paras 10,
11) After cognizance is taken, it is the duty of the Magistrate to
ascertain as to who the offenders really are. Besides a score of other
judgements, Parikh cited Shivnandan Paswan Vs. State of Bihar
On the opening day of arguments, senior counsel Sanjay
Parikh submitted before metropolitan magistrate B J Ganatra on Wednesday June
26 2013 that the Supreme Court was well aware of some conspiracy behind the
2002 riots and the courts orders, one after the other,in different riot cases
had reflected this.Citing various orders passed by the SC,including the
direction in the Best Bakery case,and other developments that ultimately led to
the formation and reconstitution of the SIT,the lawyer argued that the SC had
acted whenever it felt that investigations had been derailed. Judges of the
apex court had removed IPS officers Geetha Johri and Shivanand Jha from the
probe team on 6.4.2010 and also asked Amicus Curaie to directly assess evidence
collected by SIT in the critical case implicating Narendra Modi when the SIT
investigations were found to be problematic.
Hinting at the SITs efforts to limit Zakias complaint
to the Gulbarg Society case,the lawyer also submitted that both the cases were
completely different.Zakias complaint is definitely not confined to the Gulbarg
Society massacre case,the lawyer said.He added that the SC had also clarified
this point on Zakias application in December last,and that any effort to mix
Zakias case with the complaint lodged with the Meghaninagar police in the
Gulbarg case would be contrary to the apex courts order.
Earlier,the SIT had argued against Zakias protest
petition and defended its closure report.It claimed that all witnesses put
forth by Zakia had no personal knowledge of Modis alleged instruction to senior
officials on February 27,2002 to go slow on Hindu rioters.Earlier,in her
petition in the apex court,Zakia had alleged a larger conspiracy involving Modi
and others,behind the riots.The court had asked the SIT to investigate her
allegations.
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