Conspiracy Cannot Be Readily Inferred Merely On The Basis Of The Inaction Or Failure Of The State Administration: Supreme Court: Zakia Jafri’s Plea

Case Title:
Zakia Ahsan Jafri &Anr Vs. State of Gujarat & Anr

Date of Order:
24th June 2022

Bench: 
Hon’ble Justice AM Khanwilkar, Hon’ble Justice Dinesh Maheshwari and Hon’ble Justice CT Ravikumar

Parties:
Appellant- Zakia Ahsan Jafri
Respondent- State of Gujarat &Anr.

SUBJECT

The court dismissed the appeal filed by Zakia Jafri challenging the clean chit given by the SIT to Narendra Modi and 63 other state functionaries in the Gujarat riots case in 2002, stating that conspiracy cannot be inferred merely on the basis of failure of state machinery.

IMPORTANT PROVISIONS

• Article 356, Constitution of India, 1949- This article empowers the central government to impose presidents’ rule in the event of a failure in the constitutional machinery of the state and provides various provisions to deal with the same. 
• Article 142, Constitution of India, 1949- The article provides discretionary powers to the Supreme Court stating that in the exercise of its jurisdiction, it may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
• Section 120B, Indian Penal Code, 1860- The section lays down the punishment for the offense of criminal conspiracy.
• Section 120B, Indian Penal Code, 1860- The section lays down the liability of agents or owners or occupiers for whose benefit a riot is committed.
• Section 302, Indian Penal Code, 1860- The section is regarding the punishment for the offense of murder.
• Section 193, Indian Penal Code, 1860- The section punishes whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding.
• Section 6, Commission of Inquiry Act, 1952- This section states that no statement made by a person in the course of giving evidence before the Commission shall be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement

OVERVIEW

• The matter emanates due to consideration of the challenge to the decision of the High Court dated 2.11.2007, rejecting the prayer of the appellant, Zakia Ahsan Jafri for issuing direction to the concerned authority to register an FIR on the basis of complaint.
• During the 2002 Gujarat riots, Congress MP, Ehsan Jafri, the petitioners’ husband was killed in the Gulberg Society massacre. In 2006, she filed a complaint against the top officials, bureaucrats and some ministers, including the then Chief Minister of Gujarat, Narendra Modi, alleging inaction, complicity and conspiracy. 
• Because the State Police did not make any move, the petitioner filed an application with the Gujarat High Court to have the complaint regarded as a FIR. The High Court, while rejecting the petition, directed her to file a proper private complaint and use Section 190 CrPC read with Section 200.
• The High Court's dismissal was appealed to the Supreme Court. At the time, the Supreme Court was hearing a writ petition filed by the National Human Rights Commission (NHRC) criticizing the law-and-order situation in Gujarat. By a decision dated March 26, 2008, the Court established a Special Investigation Team (SIT) to investigate nine charges related to the 2002 riots.
• When the petitioner's appeal was heard on April 27, 2009, the Supreme Court asked the SIT to "look into the matter, take actions as required by law, and provide its report within three months". Finally, the SIT questioned 145 witnesses in connection with the complaint filed on June 8, 2006. On January 19, 2010, the SIT requested further time to conduct the investigation into petitioners’complaint. The Gulberg society trial was taking place at the same time.
• By the order dated 12.09.201, the Chairman of the SIT was instructed to deliver the final report, as well as all the information gathered by it, to the trial court, which had taken charge of the Gulberg society case. The SIT pulled out 30 claims and addressed them in its report which stated that prima facie charges under sections 153A(1)(a)&(b), 153B(1)(c), 166, and 505(2) IPC were to be made out against the then-Chief Minister of Gujarat.
• The petitioner then filed a protest petition with the relevant Metropolitan Magistrate on April 15, 2013. The protest was denied by a spoken order dated December 26, 2013, and the SIT's final (closing) report was accepted.

ISSUES RAISED

Whether failure of state administration and its constitutional mechanisms can amount to pre-planned criminal conspiracy by the authorities?

ARGUMENTS ADVANCED BY THE APPELLANT

• The thrust of the argument of the appellant was two pronged. The first being that the SIT had jumped to the conclusion that no offence was made out against the persons named in the complaint/protest petition despite material and statements collated by it during investigation indicating to the contrary. Additionally, the failure of the SIT to investigate into crucial allegations/material referred to in the protest petition.
• The second submission was regarding the failure of the Metropolitan Magistrate in exercising the powers vested in him including taking cognizance of the offence and not directing further investigation by the SIT in respect of certain matters. The High Court had also committed the same fatal error. 
• The appellants placed reliance on the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh &Anr. [(2019) 8 SCC 27], to buttress these points. It was further held in Abhinandan Jha & Ors. vs. Dinesh Mishra [AIR 1968 SC 117], there is no obligation on the Magistrate to accept the final report.
• It was argued that in the present case, the SIT failed to investigate into crucial matters in the spirit of mandate of Section 156 of the IPC and it is also a failure of the Magistrate in exercise of its powers to the fullest extent as elucidated in Section 173 read with Section 190, in particular, sub-Section (1)(b) of the Code. Even the High Court fell afoul of the same error while dealing with the revision application of the appellant.
• The order issued by the Court instructing the SIT to "look into" the complaint in no way limited the Magistrate's authority to direct inspection of claims raised as a result of the filing of the protest petition.
• The order of the Court dated 7.2.2013 reinforced the stand taken by the appellant that the Magistrate had ample power to issue directions to SIT for further investigation into the relevant matters including referred to in the protest petition. Reliance was placed on Popular Muthiah vs. State represented by Inspector of Police[(2006) 7 SCC 296].
• The appellant argued that the following issues have not been dealt with by the Magistrate and the Gujarat High Court: (i) Provocative behaviour being followed up by mass mobilizations and hate speech on 27.2.2002 as part of the wider conspiracy. (ii) Detailed documentary evidence from the SIT investigation papers pieced together meticulously in the protest petition revealing that SIB Messages had noted systematic and violent mobilizations all over the State.(iii)  Violent and murderous attacks at Vadodara and Anand having taken place by 1 pm in the afternoon and by the evening the same having spread far and wide across the state.
• It was submitted that the SIT clearly failed to take into account the material appended to the complaint dated 8.6.2006, such as the report titled “Crimes and Humanity” published in 2002 by the Concerned Citizens Tribunal, headed by former Judges of the Court and affidavits filed by the officials of the State before the Nanavati-Shah Commission.
• It was further urged that in the interests of justice, as the detailed protest petition along with exhaustive documentary evidence was presented, the Magistrate ought to have taken it as a complaint and directed further investigation in respect of issues raised therein. 
• The appellant stated that the ingredients of the conspiracy had been outlined in the complaint dated 8.6.2006 and restated with further details and evidence in the protest petition in the shape of the actual official messages’ indicative of systemic build-up of communal tension before 27.2.2002. 
• It was argued that the courts also failed to deal with the material regarding provocative behavior followed by mass mobilizations and hate speeches post 27.2.2002 as part of the wider conspiracy. 
• It was further argued that the facts emerging from the materials referred to in the protest petition are so telling that no other inference except that the named persons had committed offence, can be drawn, particularly regarding larger conspiracy. In that, no preventive measures were taken either before the episode of Godhra on 27.2.2002, or even thereafter, despite the seriousness and sensitivity of the situation. Furthermore, when the violence erupted across the State, no effort to douse the emotions of the violent mob was seen to be taken by the persons in authority, both by political dispensation and bureaucracy and police.
• It was submitted that the larger conspiracy material was not investigated in Gulberg Society case being CR No. 67/2002 and for that reason, it was essential to investigate every aspect regarding larger conspiracy. 
• Appellant argued that the SIT had not enquired into the false propaganda for inciting violence and the publication in that behalf, despite the SIT having received said documents. Reliance was placed on State of Karnataka &Anr. vs. Dr. Praveen Bhai Thogadia(2004) 4 SCC 684 and Amish Devgan vs. Union of India &Ors. (2021) 1 SCC 1 to contend that incitement to violence is punishable offence. 

ARGUMENTS ADVANCED BY THE RESPONDENT

• The respondent's submission contention was that, after being directed by this Court in an order dated 27.4.200966 to "look into" the written complaint of the appellant, it promptly swung into action and did everything it could to examine every single accusation in the complaint. The SIT extracted thirty broad claims from the complaint for examination and left no stone unturned in thoroughly investigating all aspects of the matter, as well as exhaustively analyzing every piece of data collected by it during the investigation, recording statements from 375 people and questioning 275 people in accordance with the Court's direction.
• The respondent submitted thatthe final report besides dealing with each of the allegations exhaustively, had also separately dealt with the case against each of the 63 persons named as offenders in the complaint dated 8.6.2006.
• It was further submitted that in the writ petition filed before the High Court, relief claimed was not for assigning investigation of complaint dated 8.6.2006 to the SIT (appointed by this Court in connection with nine major cases which included Gulberg Society case being CR No. 67/2002), but to an independent investigation agency. That prayer, obviously, stood rejected by the High Court.
• It was urged that the argument of the appellant to treat the protest petition as a private complaint was untenable in light of the express direction given by this Court to the SIT to submit its report to the Magistrate taking cognizance of CR No. 67/2002 being the Gulberg Society case - as further report under Section 173(8) of the Code. 
• If the report was to disclose commission of such offence of larger conspiracy or abetment, as the case may be, the Court could have proceeded against the concerned persons and tried in sessions trial arising from CR No. 67/2002 by framing requisite charge(s) in that regard. Therefore, the complaint could neither be registered as FIR nor could be treated as a private complaint in the wake of sui generis direction given by this Court vide order dated 12.9.201175 in the special leave petition preferred by the appellant. Reliance was placed on the Vishnu Kumar Tiwari case.
• With regards to the larger conspiracy, it was argued that the allegation was mainly founded on the affidavits/materials filed by the officials and others before the Nanavati-Shah Commission appointed by the State of Gujarat under the 1952 Act. The Commission, however, dealt with every aspect of the affidavit(s) filed by the concerned officials including the material which also formed part of the complaint submitted by appellant – Zakia Ahsan Jafri. The opinion of the Commission in that regard was no different than the conclusions reached by the SIT. Notably, the Commission submitted its report after the SIT had already filed its final report before the Magistrate. 
• The respondents argued that the emphasis placed by the appellant on matters referred to in the protest petition were in respect of unconnected events, not having direct or causal bearing on the allegation of larger conspiracy, particularly involving the political dispensation, as well as, the high officials, bureaucrats and police functionaries allegedly acting under the dictation of the then Chief Minister. No material has come on record to indicate that the Ministers had given specific direction one way or the other to the subordinate officials, which may be regarded as a case of larger conspiracy. Absence of such evidence, and the mere fact that the Ministers had visited the Police Control Room would not take the matter any further, much less to charge the offenders named in the complaint with any offence. 
• It was submitted that the SIT had examined everyone involved including the then Chief Minister until the last Minister and found that there was no material to connect them with the allegation of larger conspiracy and that allegations concerning the conduct of grassroot level officers had nothing to do with the allegations regarding larger conspiracy at the highest level. 

JUDGEMENT ANALYSIS

• The Court noted that the Special Investigation Team had recognized that the erring officials' inactivity and carelessness had been acknowledged at the appropriate level, including by commencing departmental action against them.
• The Bench remarked that in order to establish a case of broader criminal conspiracy, a link suggestive of a meeting of minds of the parties engaged in the conduct of the crime must be shown (s). It was determined that the relationship had not been established.
• The court found that there was no fault with the SIT's approach in submitting the final report dated February 8, 2012, which was supported by firm logic, analytical mind, and dealt with all aspects objectively for rejecting the allegations concerning larger criminal conspiracy (at the highest level) for provoking and precipitating mass violence all across State against the minority community during the period in question.
• The court noted that the SIT had been operating according to the close examination of the Supreme Court's own amicus curiae. Maintaining the Gujarat Magistrate Court's decision to accept the SIT's closure report, which was the result of "indefatigable work," the Supreme Court stated that a breakdown of public order in a state, even if caused by inaction on the part of state officials, does not necessarily entail a conspiracy.
• The bench took into account the timely corrective measures taken by the State Government in good faith, and repeated public assurances given by the then Chief Minister that the guilty would be punished for their crime(s), and peace would be maintained. They stated that it would be beyond the comprehension of any person of ordinary prudence to harbor suspicion about the meeting of minds of named offenders and the hatching of conspiracy by the State at the highest level, as alleged, much less a grave suspicion enough to send the accused for trial for an offence of criminal conspiracy.
• It was further observed that a brief collapse of law and order cannot be compared to a breakdown of the rule of law or a constitutional crisis. Misgovernance or inability to maintain peace and order within a limited period may not be considered a failure of constitutional machinery under the principles enshrined in Article 356 of the Constitution. There must be convincing proof of a state-sponsored breakdown of law and order; not random or isolated incidents or events of state administration failing to regulate the situation.
• The court also noted that there was no evidence to suggest that intelligence failed to gather information and that it was a planned conduct on the side of state government officials.

CONCLUSION

It was finally held that “Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration and that inaction or failure of some officials of one section of the State administration cannot be the basis to infer a pre-planned criminal conspiracy by the authorities of the State Government or to term it as a State sponsored crime (violence) against the minority community”

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

Click here to download the original copy of the judgement