The Supreme Court on Monday indicated that it would consider the former Union Law Minister and senior advocate, Ram Jethmalani's plea to recall the order, passed in April 2009, referring to the Special Investigation Team Zakia Jaffrey's complaint citing Gujarat Chief Minister Narendra Modi and 62 others as accused.
A Bench of Justices D.K. Jain, P. Sathasivam and Aftab Alam agreed to hear Mr. Jethmalani, appearing for a BJP MLA Kalu Bhai Maliwad, on recalling the April 27, 2009 order, after the counsel alleged that it was passed without any of the 63 persons cited as accused given notice.
The Bench also directed a trial court in Ahmedabad to defer its hearing in the Gulberg Society case following a petition filed in the Gujarat High Court seeking transfer of the case to another trial court judge. The Bench took into consideration the submissions made by Solicitor-General Gopal Subramanian and senior advocate and amicus curiae Harish Salve that Special Public Prosecutor R.K. Shah had tendered resignation, making certain allegations against the judge and the SIT and opining that the trial should be deferred.
Mr. Subramanian said: “The letter makes it clear that the public prosecutor was not allowed to examine the witnesses in the docket, and even the SIT was not making available to him documents relating to the case.” He wanted the court to find some innovative means under such circumstances. The Bench asked the SIT, headed by R.K. Raghavan, to respond to Mr. Shah's allegations.
Earlier, the Bench perused the response, received from the SIT in a sealed cover, to certain allegations levelled by petitioners Devendra Bhai Pathak and others alleging lapses in the probe and seeking reconstitution of the SIT. They alleged that the SIT refused to look into the key aspects of further investigation, especially mala fide intentions and complicity of state actors. The Bench asked the Registry to give copies of the report to the amicus curiae and the Solicitor-General and refused to give copies to the Gujarat government.
The Bench also asked the amicus curiae to obtain the SIT's response to another application moved by Ismail Mulla in respect of certain allegations and posted the matter for further hearing in the first week of April.
When Mr. Jethmalani pleaded for recall of the April 2009 order, Justice Jain said: “We have to consider whether the order in entirety can be recalled or in part.” The counsel said: “The target of the case is accused number one [Narendra Modi].” Ms. Jaffrey's complaint accuses Mr. Modi and others of orchestrating the 2002 riots.
Mr. Jethmalani argued that the “order for the SIT probe is not in the interest of law and justice, as the document is not a complaint for cognisance, as accused number 13 [Maliwad] was not heard.” He said the provisions of the Cr.P.C. were overlooked, and the case was handed over to the SIT, whose member, Shivanand Jha, a senior IPS officer, was named an accused. He wanted the order passed by Justice Arijit Pasayat (since retired) and Justice A.K. Ganguly recalled.