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Updated: October 23, 2011 11:29 IST

'The case has gone from no FIR to being heard in a criminal court'

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RAJU RAMACHANDRAN: “…the court has set the regular law in motion, by directing that all the relevant material be placed before the appropriate court”. Photo: S. Subramanium
The Hindu RAJU RAMACHANDRAN: “…the court has set the regular law in motion, by directing that all the relevant material be placed before the appropriate court”. Photo: S. Subramanium

The Supreme Court's September 12 order in the Zakia Ehsan Jafri case has set off wildly contradictory reactions, indicating an absence of legal literacy in political and media circles. The Bharatiya Janata Party celebrated the order as a victory for Narendra Modi, even as Ms Jafri, who wants Mr. Modi and 61 others to be prosecuted for the 2002 Gujarat riots, claimed to have been left depressed by it. There has been confusion over several issues: the status of the “accused”; the respective legal standing of the R.K. Raghavan-led Special Investigation Team and the amicus curiae, Raju Ramachandran, and so forth. In April 2009, the Supreme Court handed charge of Ms. Jafri's complaint to the SIT, which has since submitted three reports to the court, the last after factoring in points made in a separate note by the amicus curiae. On May 5, 2011, the Supreme Court directed the amicus to independently assess the SIT reports and give his comments. On September 12, the Supreme Court sent the case to the trial court, leading to doubts over what has been achieved. In this interview with Vidya Subrahmaniam, Mr. Ramachandran clears the air on the misunderstandings around the order, and explains its legal import.

The order of the Supreme Court in the Zakia Ehsan Jafri case has been interpreted in terms of victory and defeat, and there has been a lot of political drum-beating around it. On the other hand, Ms Jafri has expressed her deep disappointment with the order. How does the lay person cut through the hype and understand the legal import of the order?

As an amicus curiae, I will not react to how one side or the other describes the Order. I am, however, anxious that the court's final Order of 12th September is correctly understood and appreciated. It is necessary to keep the background in mind. The petitioner had filed a writ petition in the Gujarat High Court for a direction to register an FIR. She failed to persuade the High Court but the Supreme Court took serious note of her grievance. The court appointed an amicus curiae and also asked the SIT to “look into” the matter. The SIT, which started with a preliminary non-statutory enquiry, later conducted statutory investigations under the Criminal Procedure Code, 1973.

Though the SIT was a high-level investigating body, the court introduced an additional safeguard, which is not done as a matter of course, namely, that the amicus curiae would give his comments and independent assessment. This was done in respect of all the reports submitted by the SIT. In respect of the last report, the court even permitted the amicus curiae to interact with witnesses for the purpose of making his assessment. It is after all these exercises were conducted by the SIT and the amicus curiae that the court has set the regular law in motion, by directing that all the relevant material be placed before the appropriate court. Thus, starting from a situation where an FIR was not being registered, the case will now be in the hands of a criminal court.

What is the next sequence in the judicial process now?

If the SIT finds it fit to prosecute the persons named, the case proceeds further. If the SIT chooses not to proceed further (in respect of certain persons and/or allegations), it would then file a Closure Report, to which the complainant has a right to object by filing a protest petition. In such a situation, there is another view available in the form of the amicus curiae report which may either support or disagree with the SIT. If the amicus disagrees, the complainant could draw support from the view of the amicus. In the event of the SIT and the amicus both agreeing that a matter ought not to proceed further, the complainant still has the right in law to question the Closure Report.

Before the verdict, the expectation — at least in political and media circles — was that the court would give an indication of its own mind in this matter. It was expected that the court would respond one way or another to the complainants' prayer for an FIR to be registered against Mr. Modi. Since this did not happen, the immediate interpretation was that “the highest court has let Mr. Modi off.”

If the court had indicated its own mind in the matter, one way or the other, it would have irretrievably prejudiced either the complainant or the potential accused. Even a prima facie view by the court on the merits of the case would have caused such prejudice, and so, a wise court did not do so.

Also before the verdict, the court had made many oral observations. At one point, the judges suggested that there was a mismatch between the findings and conclusions of the SIT. The court also refused to hand over a copy of your (the amicus') report to the SIT, saying it would do so at the appropriate time. Against this background, the order came as a bit of an anti-climax.

It would not be correct to predict the final result of a case on the basis of oral observations at one hearing or the other. Similarly, the fact that the court declined to give a copy of my report to the SIT at a particular point of time did not mean that the court had lost faith in it.

The court in its order observed that it had a duty to ensure the investigation was fair. Does this mean that the trial court is bound to consider the contents of the SIT report and your own findings?

I would think that when the court has found it necessary to take the views of the amicus into account, the same consideration would apply to the lower court as well.

We are also confused by the court's use of the term “open to”: The court said it was “open to” the SIT to include the amicus curiae's findings when it sends its own final report to the trial court. Does this mean the SIT has a choice not to include the amicus' report?

I don't think the court has left discretion in the matter to the SIT. And, to be fair to the SIT and its distinguished Chairman, I don't think they themselves view the court's Order in that light.

Has the stage now been set for the trial of all the 62 “accused”, including the Chief Minister?

It would be premature to say that the stage has been set for a “trial”, as understood in law. It will be more accurate to say that the law has been set in motion, in respect of the complaint made by Ms Jafri, against the various persons named by her.

In this context, are the 62 people named in Zakia Jafri's complaint “accused” or “potential” accused?

The persons named in Zakia Jafri's complaint are not “accused” in the legal sense, even if they are in a colloquial sense. A person becomes an “accused” when the police file a chargesheet or a Magistrate takes cognizance and issues process.

What is the respective legal standing of the SIT report and your own report? In a conflict between the two, which one prevails?

Under the Criminal Procedure Code, 1973 it is the investigating agency which investigates and files a report in the Court. On the other hand, the Supreme Court — in exercise of its powers under Article 136 and 142 of the Constitution — has made the report of the amicus curiae a relevant factor to be taken into consideration. As I said, this is an additional safeguard which the court has found fit to introduce, which is not done as a matter of course. The SIT would be entitled in law to disagree with the amicus curiae, but as I have already indicated, the amicus report will also be before the court. If there is a conflict, it is the court which has the final word, after hearing the complainant.

There is an impression that your findings differ significantly from that of the SIT.

That is an “impression”. It is only when the Reports become public knowledge that the points of difference, if any, will emerge.

The court has gone to great lengths to ensure that this case was investigated properly. Raghavan is a distinguished investigator and no one can question his integrity. It is about the time this case is closed and let so many people involved in this case do their job.

from:  Satish
Posted on: Oct 23, 2011 at 06:54 IST

Crime that to most heinous in nature must not go unpunished...

from:  G. K GHOSH
Posted on: Oct 6, 2011 at 11:34 IST

After seeing this interview is it not the responsibility of the media not to react in the same way as BJP. All news channels were showing on that day as if Modi has been given clean chit. Responsibility of the media was to get proper interpretation of the judgement from senior lawyers and tell the public.

from:  Mukhtar Ahmad
Posted on: Sep 19, 2011 at 21:00 IST

The next sequence in the Judicial Process has been made very clear by the amicus curiae. The SIT chief has assured that he will not allow the Victims to be let down. The Supreme court has left it open to the Trial Court to decide. I hope the SIT will either prosecute all the persons named in the complaint taking into consideration of the amicus curiae's Report or file a closure report based on the Evidence collected and submitted by them earlier and reiterating it's decision that there is no evidence against Mr. Modi to prosecute him. Let us wait and see. The complainant need not get disappointed as she has a right to file Protest Petition and has legal remedy . If the Trial Court refuses to take cognizance of the offence alleged to have been committed by Mr. Modi I think still she can file a Private Complaint to prosecute Mr. Modi and all others. In any event it is going to be long drawn process to get Justice . How much it is difficult to establish the truth in a court of Law.

from:  N.Thirunavukkarasu
Posted on: Sep 19, 2011 at 08:12 IST

"The persons named in Zakia Jafri's complaint are not “accused” in the legal sense, even if they are in a colloquial sense..." This says it all! Narendra Modi is the best CM India has ever seen. If he comes out clean then the future of India is real bright.

from:  srikanth
Posted on: Sep 16, 2011 at 14:35 IST

Modi should be prosecuted for his wrong doings.

from:  Rafie malik
Posted on: Sep 16, 2011 at 11:34 IST

Indeed, he has acted in a impartial manner. But the questions, indicate the media has been completely biased. It is clear that the interviewer has already decided the group of 62 is guilty. And a trial has to be held against them. I am happy that our judiciary has remained neutral in this aspect and not played on "media reports".

from:  Vijay
Posted on: Sep 16, 2011 at 11:33 IST

Raju Ramachandran has acted in an impartial manner and his probe has exposed the flaws in the enquiry conducted by SIT chief Raghavan. The fact that Ramachandran was appointed amicus curiae by the Supreme Court is a clear indication that the Apex court Bench at that time was not satisfied with Raghavan's findings. Although Raghavan may try to defend himself by saying " I will not allow the victims to be let down,' after the bold revelation of Bhat, an insider in Modi's government, the media and the public will closely watch the further moves of SIT before submitting the final report before the trial court.It is quite gratifying that the findings of amicus curiae will also be bfeore the trial court.

from:  A.Yeshuratnam
Posted on: Sep 16, 2011 at 09:58 IST
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