Summary
The widow of a former MP killed in the Gulberg Society massacre of 28.02.2002 complained in 2006 that the then Chief Minister and senior functionaries of Gujarat had hatched a larger conspiracy behind the post-Godhra violence. On the Supreme Court's direction its SIT 'looked into' the complaint and in 2012 it filed a closure report before the Magistrate in the Gulberg case; the Magistrate rejected the protest petition and the High Court dismissed the revision. The Supreme Court dismissed the appeal. The SIT's remit was confined to conspiracy at the highest level; the core allegation rested on witnesses whose claimed presence at the meeting of 27.02.2002 was shown to be false; inaction or failure of the administration does not prove a meeting of minds; and the Tehelka tapes, call records and other material raised no strong suspicion warranting further investigation.
Issues
- What was the remit of the Supreme Court-appointed SIT and of the Magistrate in dealing with the complaint of 08.06.2006 and the protest petition, given the sui generis directions that the SIT 'look into' the complaint and present its report under Section 173 CrPC in the Gulberg Society case.
- Whether the SIT's closure report on the allegation of a larger criminal conspiracy at the highest level of the State to cause and precipitate mass violence was properly accepted, and whether the material relied on — the Tehelka sting tapes, SIB messages, call records, delayed curfew and Army deployment, appointment of prosecutors and alleged parading of bodies — warranted cognizance or further investigation.
- Whether inaction or failure of State functionaries during mass violence can, without evidence of a meeting of minds, found a charge of criminal conspiracy.
Provisions considered
- Sections 154, 161, 169, 173(2), 173(8) and 190, Code of Criminal Procedure, 1973Investigation culminates in the officer's opinion whether there is 'strong suspicion' that the accused has committed the offence; mere suspicion does not suffice. The Court's orders treating the SIT's statements as Section 161 statements and its report as a further report under Section 173(8) in the Gulberg case meant the complaint could not be registered as a fresh FIR or treated as a private complaint, and the Magistrate's enquiry was confined to the allegation of larger conspiracy at the highest level. (¶¶ 10, 11, 12, 16, 17, 22, 23, 63, 83, 90)
- Section 120B (criminal conspiracy), Indian Penal Code, 1860Conspiracy requires an agreement and the intention to achieve its unlawful object; it cannot be inferred merely from inaction, laxity or failure of the State administration to control spontaneous mass violence absent tangible material showing a meeting of minds and a perceivable link between the separate incidents. (¶¶ 39, 41, 43, 44, 45, 47, 53, 68)
- Sections 30 and 65B, Indian Evidence Act, 1872Extra-judicial confessions in the Tehelka sting could at best be used against their makers, not others, and needed corroboration; the call-record CDs produced by an officer years later, copied and re-formatted on his home computer without the originals, could not be certified and service providers retained data for only a year, so the SIT could not retrieve or authenticate them. (¶¶ 50, 51, 52, 60, 61, 62)
- Articles 142 and 136, Constitution of IndiaThe Court's successive directions to the SIT flowed from its plenary powers; having monitored the investigation and permitted the Gulberg trial to proceed, it implicitly rejected registration of an independent FIR, and all concerned, including the appellant, were bound by that sui generis procedure. (¶¶ 15, 17, 83)
Held
- The SIT's remit in terms of the Court's orders was limited to the allegation of larger criminal conspiracy at the highest level resulting in mass violence across the State; conspiracy at the local level in the Gulberg Society and the other eight assigned cases had already been investigated and tried, and the Magistrate's enquiry on the protest petition had likewise to be confined to that limited aspect. (¶¶ 14, 15, 17, 18, 22, 23)
- The core allegation rested on the claims of two persons to have been present at the review meeting of 27.02.2002 where the Chief Minister allegedly told officials to let the majority vent its anger, and on the hearsay of a third; every official present denied their presence and the utterance, and contemporaneous records including call details exposed the claims as false. The structure of larger conspiracy erected on those claims collapsed like a house of cards, and the appellant ultimately did not press that allegation. (¶¶ 24, 25, 26, 27, 30, 34, 35, 37)
- The argument that undisputed material — SIB messages, hate speech, the bandh call, delayed curfew and Army, prosecutors' appointments, the handling of the Godhra victims' bodies, the fire brigade's response and transfers of officers — pointed to a larger conspiracy was a red herring: inaction or failure of duty holders to act on intelligence, or even collapse of the administration under spontaneous violence, does not imply criminal conspiracy without material showing a meeting of minds and a deliberate plan; erring officials were proceeded against departmentally. (¶¶ 39, 40, 41, 43, 44, 45, 48, 56, 57, 58, 64, 70, 73, 78)
- The Tehelka sting, though technically authenticated, yielded only extra-judicial confessions usable against their makers, who were already prosecuted in the relevant cases; the SIT recorded the statements of 13 of the 18 persons stung and found no corroboration of a larger conspiracy. Its analysis is not a final determination of the tapes' evidentiary value in other cases. (¶¶ 49, 50, 51, 52, 87)
- An investigating agency must test the authenticity of every piece of information and collect corroboration; without it there is only suspicion, not the grave suspicion required by Section 173(2)(i)(d) to send a suspect for trial. The SIT, having analysed the material allegation-wise, offender-wise and witness-wise and addressed each observation of the amicus curiae through further investigation, rightly opined that no offence was made out, and the Magistrate and High Court committed no error in accepting the closure report without directing further investigation, no new material having surfaced. (¶¶ 12, 46, 47, 63, 80, 81, 82, 89, 90, 91)
- The proceedings, pursued for sixteen years on revelations found false to the knowledge of disgruntled officials and others who questioned the integrity of every functionary, were an abuse of process; all those involved in such abuse need to be in the dock and proceeded against in accordance with law. The SIT's work was commended. (¶¶ 85, 88)
Result
Appeal dismissed; the Gujarat High Court's order of 05.10.2017 in Criminal Revision Application No. 205 of 2014 and the Metropolitan Magistrate's order of 26.12.2013 accepting the SIT's final (closure) report of 08.02.2012 and rejecting the protest petition upheld. Pending applications disposed of.