Godhra riot: The inaction of some state officials cannot be the basis to term it as a state sponsored crime against the minority [judgment]

 

In any case, 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) – the Hon’ble Supreme Court said 

The Supreme Court in a case relating to 2002 Gujarat riot has said that there is not tittle of materials to prove that 2002 Gujarat riots were pre-planned and the inaction of some state officials cannot be the basis to term it as a state sponsored crime against the minority.

 

                        The appellant – Zakia Ahsan Jafri, wife of killed Congress leader Ehsan Jafri mentioned the names of 63 persons, who according to her, were also involved in larger conspiracy and abetment of the crime resulting in carnage between February, 2002 and May, 2002, that shook the State of Gujarat. This allegation was against the then Chief Minister and Ministers of the State, as well as high police officials and bureaucrats and others for having committed offence under Section 302 read with Section 120B, Section 193 read with Section 114 and Sections 185, 153A, 186 and 187 of the Indian Penal Code  and Section 6 of the Commission of Inquiry Act, 1952  and also under various provisions of the Gujarat Police Act, 1951  and the Human Rights Act, 1991

 

The top Court deemed it appropriate to ignore/condone the delay and proceeded to hear the matter on merits keeping in mind the subject matter involved, even though there is a delay of 216 days in filing of this special leave petition against the judgment and order dated 5.10.2017 passed by the High Court of Gujarat at Ahmedabad  in Criminal Revision Application No. 205/2014 and  also the  explanation offered in the application for condonation of delay is blissfully vague and bereft of any material facts and particulars.

 

A three  Bench of  the Apex Court comprising of justice  A.M. Khanwilkar, Justice Dinesh Maheshwari and Justice C.T. Ravikumar  dismissed the appeal holding that the said appeal is devoid of merits and stating  “suffice it to observe that there is no tittle of material, much less tangible to support the plea of the appellant that the Godhra incident unfolded on 27.2.2002 and the events which followed, was a pre-planned event owing to the criminal conspiracy hatched at the highest level in the State  It is well settled that conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. The offence of conspiracy is independent of other offences. It takes place when there is an agreement to do or cause to be done an illegal act, or an act which may not be illegal but by illegal means. The rationale of conspiracy is that the required objective manifestations of dispositions of criminality is provided by the act of agreement. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they will accomplish the unlawful object of the conspiracy.

As noted earlier, inaction in the response or even in a given case of non-responsive administration, can be no basis to infer hatching of criminal conspiracy by the authorities of the State Government in absence of any clear evidence about the meeting of minds; and that, failure to respond to the messages sent by SIB was a concerted and deliberate act of omission or commission on the part of the State and other functionaries, as alleged”.

 

The Hon’ble Court also said – 

“In any case, 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. The SIT had noted that inaction and negligence of the erring officials has been taken note of at the appropriate level including by initiating departmental action against them. Such inaction or negligence cannot pass the muster of hatching of a criminal conspiracy, for which the degree of participation in the planning of commission of an offence of this magnitude must come to the fore in some way. The SIT was not there to enquire into the failures of the State administration, but the remit given to it by this Court was to enquire into the allegations of larger criminal conspiracy (at the highest level).

 The Court, emphasising on the situation during the second wave of Corona pandemic where best of medical facilities crumpled, said 

“breakdown of law-and-order situation if for short duration, cannot partake the colour of breakdown of rule of law or constitutional crisis. To put it differently, misgovernance or failure to maintain law-and-order during a brief period may not be a case of failure of constitutional machinery in the context of tenets embodied in Article 356 of the Constitution. There must be credible evidence regarding State sponsored breakdown of law-and-order situation; not spontaneous or isolated instances or events of failure of State administration to control the situation. Suffice it to observe that the breakdown of law-and-order situation in the State including attributable to the alleged inaction of the (State) duty holders, owing to spontaneous mass violence cannot be a safe measure to infer as being a part of the criminal conspiracy at the highest level of political dispensation unless there is clear evidence to so conclude regarding meeting of the minds of all concerned and their concerted efforts to commit or promote commission of such crime”.

 

The Bench said the SIT had not found any conspiracy for  linking the separate incidents of mass violence across the state during the investigation of nine separate  crimes including the Godhra train incident, dealt with by the SIT under the strict vigil and supervision of this Court and ably assisted by the amicus curiae playing the role of devils’s advocate.

 

According to the top Court, the appellant had gone to the extent of alleging that the two train bogies were put on fire as part of preplanned conspiracy hatched  by the highest authority. “ This is only a figment of imagination, preposterous and in disregard of the hard facts discernible from the material collected by the SIT including in the investigation concerning Godhra incident clearly spelling out the manner in which that incident had occurred. The trial of that case has established the involvement of accused who had been convicted for being responsible for the said incident and appeal therefrom is pending in this Court” – the Court said.

 

The Hon’ble Supreme Court said for being involved in the crime of criminal conspiracy, there ought to be positive material indicative of deliberate act of commission and omission and meeting of minds of the concerned persons, which was completely absent and not forthcoming during the investigation conducted by the SIT.

 

It is relevant to mention here that the allegation were based upon the falsehood of the claim of Sanjeev Bhatt and Haren Pandya regarding the utterances of the then Chief Minister in review meeting chaired by him – which stood completely exposed after the investigation by the SIT.

 

Case:

ZAKIA AHSAN JAFRI versus STATE OF GUJARAT & ANR.

DOJ: 24.06.2022

 Judgment in PDF