Larger conspiracy orchestrated by Setalvad to defame state: Gujarat to SC

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Gujarat government on Thursday told Supreme Court that there is a “larger conspiracy” orchestrated by Teesta Setalvad of the NGO Citizens for Justice and Peace “to defame” the state for almost 20 years, and wondered why the Special Investigation Team (SIT), appointed by the court to probe into the 2002 post-Godhra riots cases, had not prosecuted her for fabricating evidence despite witness statements.

“There is a larger conspiracy orchestrated by petitioner number 2 (Setalvad) to defame an entire state for almost 20 years… Naming and shaming an entire state for number of years… The last report of the SIT shows she was tutoring witnesses, preparing pre-typed computerised statements and sending it to them. The aim was to involve innocent persons… It has been my complaint from very beginning why SIT did not prosecute her for fabricating evidence,” Solicitor General Tushar Mehta told a bench headed by Justice A M Khanwilkar.

The bench, also comprising Justices Dinesh Maheshwari and C T Ravikumar, is hearing an appeal filed by Zakia Jafri, wife of Congress leader Ehsan Jafri who was killed in the Gulberg Society riots. Zakia’s appeal has challenged the Gujarat High Court order that upheld the decision of the Metropolitan Magistrate Court in Ahmedabad to accept the SIT’s closure report that gave a clean chit to the then state chief minister Narendra Modi and others in riot-related cases.

Solicitor General Mehta said he had nothing against Zakia, who lost her husband in the riots, “but there has to be a limit to exploiting the miseries of a widow”.

Recalling the developments in the apex court in the aftermath of the riots, he said, “They came to the SC with wild allegations against state functionaries…The SC said we will select case, state had no objection. The SC said we will appoint SIT, state had no objection. The SC said we will select officers, government had no objection… SC said the officers will be answerable only to us, we said OK.”

The top court, he pointed out, also said the judges to conduct the trial will be picked by the Chief Justice of the High Court and the state agreed to this as well. “And those judges have decided all these 9 cases selected by your lordships. Yet we are still facing allegations and they are saying it needs more probe,” said Mehta. “What is that larger conspiracy which still compels them to keep the pot boiling forever?”

Mehta said Setalvad “has orchestrated proceedings and has attempted to malign the entire state for decades…What was that larger conspiracy? Nobody knows, it is pending investigation.”

He cited the statement of Setalvad’s former associate Rais Khan Aziz Khan Pathan that she was allegedly sending him pre-typed and pre-notarised testimonies of witnesses.

Asking what could have been Setalvad’s motivation to do this, Mehta referred to donations received by Setalvad’s NGO and discrepancies in its account books.

The bench, meanwhile, wondered if it can allow Zakia, who had the opportunity to seek relief earlier but did not do so, to again approach it “by way of side proceedings and seek continuation of those proceedings”.

The court asked this after Senior Advocate Mukul Rohatgi, appearing for the SIT, said that in 2007, the Gujarat High Court had asked Zakia to initiate proceedings under Section 190 of CrPC, which enables a magistrate to take cognizance of a complaint, but she did not do so and instead approached the apex court, which asked the SIT to look into her complaint. Rohatgi also said Zakia was examined as a prosecution witness in the criminal case in connection with the Gulberg Society incidents but she did not state anything about the large conspiracy even then.

Rohatgi said this may have been because her statements mostly relied on hearsay evidence and maybe she feared that the trial court would say so.

“She was duty bound as a prosecution witness and she should have disclosed whatever she knew. But she didn’t,” said Rohatgi, adding whether she can now be allowed to raise it all again.

“If you fail to avail the opportunity when you appeared as prosecution witness, then you continue the same grievance through side proceedings… There would be no conclusion… If some accused are convicted on basis on some material, then some other material is brought… Is that permissible?”, asked Justice Khanwilkar. “There will be no finality. This may arise in many cases. In criminal justice system, accused has a right too… no accused should go scot-free, but accused also has a right to fair trial and finality of proceedings… how do we balance that now.”

The arguments remained inconclusive and will continue Friday.

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