Published: October 4, 2011 - 15:35 Updated: October 10, 2011 - 18:32

Narendra Modi has to face the full procedure under CrPC and can even face trial if the magistrate is convinced about the charges against him, irrespective of what the SIT may have said in its earlier report
Mukul Sinha Ahmedabad

Can a person be a claimant for the post of prime minister of the largest constitutional democracy in the world and yet have his photograph stuck outside every police station as a wanted criminal?

No amount of manipulation or subterfuge has yet obliterated the guilt of the genocidal killings of over a thousand men, women and children in 2002 in Gujarat, which still hangs like an albatross around the neck of Narendra Modi. The bigger he blows up his image with the ambition to fill up the national canvas, the sharper becomes the scrutiny against him.

The climax was reached on May 5, 2011, when the Supreme Court asked Amicus Curiae Raju Ramchandran to examine the report of its own investigative agency, the Special Investigation Team (SIT), headed by RK Raghavan. SIT had reportedly opined that there was insufficient evidence to prosecute Modi, but the apex court was not satisfied. Ramchandran gave his report on July 15, and that kindled the bushfire of speculation. But then came the order of the Supreme Court on September 12, 2011, sending the entire matter back to the lower court.

Modi celebrated the order by organising a three-day 'Sadbhavana fast' at Ahmedabad as if he was acquitted of all the allegations regarding the killings of 2002! Is our criminal justice delivery system so fragile that a person who is accused of such grave actus reus can claim complete immunity from further prosecution so as to make him eligible to be our PM?

Before we deal with this jurisprudential question, it would be necessary to trace Zakia Jaffrey's case.

The appellant before the Supreme Court, Zakia Jaffrey, had lost her husband, Ehsan Jaffrey, a former Member of Parliament, in the genocidal violence that took place on February 28, 2002 in Ahmedabad. She had subsequently received certain material that showed that the violent events in Gujarat were aided, abetted and conspired by some responsible persons in power, in connivance with the state administration, including the police. She had thus sought registration of another FIR against 63 persons named in the complaint, dated June 8, 2006, for offences punishable under Section 302 read with Section 120B, and under Section 193 read with Sections 114, 186 & 153A, 186, 187 of the Indian Penal Code (IPC), 1860.

However, as the police declined to take cognisance of her complaint, the appellant filed a petition before the Gujarat High Court. Having failed to convince the High Court that it was a fit case for investigation by an independent agency, Zakia had appealed before the Supreme Court.

On April 27, 2009, the Supreme Court had directed the SIT "to look into" the complaint of Zakia, following which, AK Malhotra, SIT member, made investigations and submitted a report on May 12, 2010, to the apex court. In his report, Malhotra recommended further investigation under Section 173(8) of the Code of Criminal Procedure (CrPC), 1973, against certain police officials and a minister in the Gujarat state cabinet. Consequently, further investigations were conducted and a report dated November 17, 2010, was submitted by the SIT. On November 23, 2010, Raju Ramachandran, senior advocate, was appointed as Amicus Curiae.

On January 20, 2011, a preliminary note was submitted by Ramachandran, whereon the apex court, vide order dated March 15, 2011, directed the SIT to submit its report, and, if necessary, carry out further investigation in light of the observations made in the said note. The SIT conducted further investigations under Section 173(8) of CrPC in Meghaninagar Police Station Crime Report No 67 of 2002 – Gulberg Society case – and submitted a report on April 24, 2011.

After examining the said report, on May 5, 2011, the Supreme Court directed the Amicus Curiae to examine and analyse the report, and give his own independent assessment of the statements of the witnesses recorded by the SIT and submit his comments thereon. He was empowered to interact with any of the witnesses who had been examined by the SIT, including police officers. He was allowed to submit his opinion on the basis of the material on record if any offence was made out against any person. The learned Amicus Curiae submitted his final report on July 25, 2011.

It was the last order dated May 5, 2011 that gave rise to the intense speculation in the media regarding the possibility of the apex court directing the prosecution of Modi. The filing of the report by Ramchandran on July 25, only added fuel to the fire. What was missed altogether by the people at large was the fact that the last report of SIT dated April 24, 2011 was in relation to the FIR filed in the Gulberg case and, therefore, the only course left to the Supreme Court was to direct the SIT to file its report before the magistrate at Ahmedabad, which had taken cognisance of the Gulberg Society case.

By order dated September 12, 2011, the Supreme Court had, therefore, directed the Chairman, SIT, to forward a final report as required under Section 173(2) of CrPC, along with the entire material collected by the SIT, to the court at Ahmedabad that had taken cognisance of the Gulberg Society case in which Ehsan Jaffrey and several others were murdered on February 28, 2002 (Crime Report No 67 of 2002).

It was kept open to the SIT to obtain copies of the reports from the Amicus Curiae submitted to the Supreme Court. The court at Ahmedabad was directed to deal with the matter in accordance with law relating to the trial of the accused named in the report/chargesheet, including matters falling within the ambit and scope of Section 173(8) of CrPC.

Through these innocuous, though legally appropriate, directions, the Supreme Court, instead of giving any clean chit, had only scotched all further hype that was being generated ever since Zakia Jaffrey had filed the special leave petition before the apex court, naming, among others, Narendra Modi as an accused in her omnibus complaint dated June 8, 2006, filed before the Director General of Gujarat Police. Modi, therefore, has to face the full procedure under CrPC and can even face trial if the magistrate is convinced about the charges against him, irrespective of what the SIT may have said in its earlier report.

Criminal jurisprudence as its stands today, after centuries of evolution, still rests on three fundamental principles: (a) The crime is against society and, therefore, it is the State that shall prosecute; (b) no one is presumed to be guilty till he is pronounced guilty by a court of law, and (c) the judiciary is independent from the executive.

While a private person gets full advantage of the second principle and can go scot-free till his crime is proved beyond doubt, the chief minister gets advantage of all the three principles because, as the head of government, he can render the justice delivery system impotent to book him.

In the recent case of Manu Sharma vs State, Justice P Sathasivam, speaking on behalf of the Supreme Court, has, in fact, expressed his anguish in the following words: "In Indian criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play a balanced role in the trial of a crime..."

It is in this display of fairness and balance that the justice delivery system sometimes allows the rich and powerful to slip out of the dragnet, and thereby awards them the clean chit required to fill the application for recruitment to the post of prime minister. Will this happen in the case of Narendra Modi? We will have to wait and watch.

The writer is an eminent lawyer based in Ahmedabad, Gujarat 

Narendra Modi has to face the full procedure under CrPC and can even face trial if the magistrate is convinced about the charges against him, irrespective of what the SIT may have said in its earlier report
Mukul Sinha Ahmedabad

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