There was a "stark collaboration" between the political class, bureaucracy, investigators and others during the 2002 Gujarat riots after the "national tragedy" of Sabarmati Express incident at Godhra and the SIT did not investigate these aspects, Zakia Jafri told the Supreme Court on Tuesday.
The apex court asked Zakia Jafri's counsel Kapil Sibal as to whether he was attributing motives to the SIT and said the term "collaboration" is a very strong term for a Special Investigation Team (SIT) constituted by the top court.
A bench headed by Justice A M Khanwilkar said the same SIT had filed charge sheets in the riots cases in which accused were convicted.
Zakia Jafri, the wife of slain Congress leader Ehsan Jafri who was killed at Gulberg society in Ahmedabad on February 28, 2002 during the violence, has challenged the SIT's clean chit to 64 people including Narendra Modi, the then Gujarat chief minister during the riots.
The S-6 coach of Sabarmati Express was burnt at Godhra killing 59 people and triggering riots in Gujarat in 2002.
Sibal told the bench that there are "glaring instances of collaboration" which are borne out from records but the SIT did not investigate on the alleged larger conspiracy in the riots.
"So far as your grievance about collaboration of local police at the ground level, we can understand that and we will look into it. How can you say that about the SIT which was appointed by the court," the bench, also comprising Justices Dinesh Maheshwari and C T Ravikumar, asked Sibal.
The bench asked Sibal whether the petitioner is "attacking" the manner of investigation done by the SIT.
The senior advocate said, "Yes. That is something which troubles me." The bench then observed, "How can you attribute motives to the SIT? It is the same SIT which filed charge sheets and people were convicted. No such grievance was made in such cases and you appreciated the work done by the SIT in those cases.
"The expression 'collaboration' is a very strong term for an SIT constituted by this court." Sibal said grievances were raised also in the cases where charge sheets were filed and the records show collaboration of the state machinery.
"I will demonstrate that after that national tragedy on Sabarmati Express, what happened was that instead of investigating the perpetrators of the crime, the investigators actually became collaborators to the crime. It is not that the entire police machinery was collaborating," Sibal said.
"There are glaring instances of collaboration that is borne out from the records. The bureaucracy, political class, VHP, RSS and others became collaborators. There was stark collaboration," he told the bench. The SIT had the knowledge of a sting operation, which was used in another riots case in which accused were convicted, but they did not probe those people, Sibal said and asked whether the SIT was saving those persons.
"You can pitch your arguments that these were to be done by the SIT, but it was not done. May be, there was error of judgment and this will have to be explained," the bench said Sibal said that those, who were accused and were ex-facie involved in criminal offences, were not prosecuted.
He said officers who did their duty were prosecuted and those who "collaborated" were rewarded.
The senior advocate said relevant materials were not investigated and placed before the court by the SIT.
"There was collaboration in the violence. No court, no democracy can countenance it. Otherwise, a message will go that we can do anything and nothing will happen to us," he said.
Sibal said that no person has been sought to be prosecuted for hate speeches at that time.
"What becomes the ultimate victim in this case is the justice," he said, adding, "This is the failure of the system".
The day-long arguments in the matter remained inconclusive and would continue on Wednesday. Sibal had earlier argued that Zakia Jafri's complaint of 2006 alleging larger conspiracy in the riots was not investigated by the SIT.
Senior advocate Mukul Rohatgi, appearing for the SIT, had earlier told the apex court that Zakia Jafri's complaint alleging larger conspiracy was thoroughly examined after which the SIT came to the conclusion that there was no material to take it forward.
Ehsan Jafri, the former MP, was among the 68 people killed in the violence, a day after the Godhra train incident.
Sibal had argued that Zakia Jafri's complaint was that there was "a larger conspiracy where there was bureaucratic inaction, police complicity, hate speeches and unleashing of violence".
On February 8, 2012, the SIT had filed a closure report giving a clean chit to Modi, now the Prime Minister, and 63 others including senior government officials, saying there was "no prosecutable evidence" against them.
Zakia Jafri had filed a petition in the apex court in 2018 challenging the Gujarat High Court's October 5, 2017 order rejecting her plea against the SIT decision.
The plea also maintained that after the SIT gave a clean chit in its closure report before a trial judge, Zakia Jafri filed a protest petition which was dismissed by the magistrate without considering "substantiated merits".
It also said the high court "failed to appreciate" the petitioner's complaint which was independent of the Gulberg Society case registered at a police station in Ahmedabad.
The high court in its October 2017 order had said the SIT probe was monitored by the Supreme Court.
However, it partly allowed Zakia Jafri's petition as far as its demand for a further investigation was concerned.
It had said the petitioner can approach an appropriate forum, including the magistrate's court, a division bench of the high court, or the Supreme Court seeking further investigation.
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