The Supreme Court on Tuesday restrained senior IPS officers Geeta Johri and Shivanand Jha, who are members of the Special Investigation Team, from associating themselves with the probe/trial of the 2002 Gujarat riot cases until further orders.
A Bench of Justices D.K. Jain, P. Sathasivam and Aftab Alam passed this order following allegations by Devendra Bhai Pathak and other petitioners of lapses in the probe and their plea for reconstitution of the SIT, formed by the court and headed by the former CBI Director R.K. Raghavan. The Bench asked amicus curiae Harish Salve to furnish to Gujarat copies of the comments received from the SIT and its members on certain allegations to enable the State to respond, and posted the matter to April 19, when it would consider the plea for reconstitution of the SIT and stay of the trial.
The petitioners alleged that the SIT refused to look into key aspects of further investigation, especially mala fide intentions and complicity of state actors. In particular, it was pointed out that the court had indicted Ms. Johri in the Sohrabuddin fake encounter case and Mr. Jha had been cited as one of the accused in the complaint given by Zakia Jaffrey, wife of the former Congress MP, Ehsan Jaffrey, who was burnt alive. Ms. Jaffrey wants a probe against Chief Minister Narendra Modi and 62 others for their alleged role in the riots. The petitioners sought further investigation and stay of the trial in the 10 cases handled by the SIT.
At one stage, when the Bench was about to stay the trial, senior counsel Mukul Rohatgi, appearing for Gujarat, said the court should not pass any order without hearing the State.
Counsel said 1,061 out of 2,100 witnesses were already examined. No investigation was pending, charge sheets were filed and trial was proceeding in all the 10 cases without any complaint. As for 100 witnesses turning hostile, Mr. Rohatgi said it happened just like in any other trial.
When Justice Sathasivam asked, “When serious allegations are made against the SIT, should we keep quiet,” Mr. Rohatgi replied, “Should you stay the trial for this reason?”
Counsel said: “The petition was motivated. All of a sudden, allegations were being made against the SIT, the public prosecutors, judges, magistrates and others.” Questioning the procedure adopted by the court, Mr. Rohatgi said: “One-and-half years after the SIT had conducted the investigation and [when] trial was going on, the Supreme Court should not act as a super appellate court going into the correctness of charge sheets etc, violating all procedures.”
The former Union Law Minister and senior counsel, Ram Jethmalani, appearing for BJP MLA Kalu Bhai Maliwad, who wants recalling of the order April 27, 2009 order passed on Ms. Jaffrey's complaint, said: “Justice is not a layman's search for truth. This is a game. It should be played according to the rules.”
“Violation of procedure”
Mr. Jethmalani said: “What the petitioners want is that all 63 persons [cited in Ms. Jaffrey's complaint] including Mr. Modi should be hanged without any hearing. Every order that is being passed by the Supreme Court is in violation of the procedure contemplated under the Cr.PC and prejudicial to the accused.”
When Justice Jain wanted to know whether the earlier orders passed in this case were in exercise of powers under Article 142 to render complete justice, he said: “Even under Article 142, no order can be passed in violation of a procedure under a statute, viz. the Cr.PC. I am sorry to say that all these orders were passed without any authority under law.”
Earlier, Mr. Salve referred to the comments received from the SIT and said it had not considered certain aspects. When the credibility of the SIT was at stake, it would lead to larger implications. He said he would get points from the petitioners on the comments of the SIT and formulate the issues for consideration by the court at a hearing on April 28, when it would also consider Mr. Jethmalani's submissions.
Solicitor-General and another amicus curiae Gopal Subramaniam pleaded for reconstitution of the SIT and stay of the trial in the meantime.
Published - April 06, 2010 04:49 pm IST
