Elucidating the Supreme Court Verdict on Zakia Jafri

(Key concept regarding criminal procedure: complainant gives information in a complaint -> FIR registered -> investigation conducted ->report submitted ->chargesheet filed -> trial commences )

A quick perusal of the brief  judgment in ZakiaJafri case (http://www.sci.nic.in/outtoday/sr108808.pdf) shows that the Supreme Court was primarily concerned with two issues : (i) future course of the criminal trial in the Gulberg Society case (ii) further monitoring of the trial

A brief summary of the facts leading up to this order are enumerated below:

1)      Incident occurred on 28th February, 2002 in the surroundings of Gulberg Society, Ahmedabad

2)      An FIR relating to the incident was registered by the Police with Meghaninagar Police Station, Ahmedabad. After investigation, on the filing of the charge-sheet, the case was committed to the Court of Sessions, Ahmedabad. (i.e. the trial in the case had commenced)

3)      The complainant, i.e. Zakia Jafri, sought registration of another FIR against certain persons named in her complaint dated 8 June, 2006

4)      The basis given for seeking another FIR was that she had “subsequently received certain material which showed that the incidents whichtook place during the period between 27th February, 2002 and 10^thMay, 2002, were aided, abetted and conspired by some responsible persons in power, in connivance with the State Administration,including the Police.”

5)      The police, however, refused to take cognizance of this complaint by Zakia Jafri.

6)      Jafri, supported by an NGO, then approached the High Court and sought the directions that (1) DIG, Gujarat should register her private complaint dated 8 June, 2006 as an FIR; (2) investigation by an independent agency should be carried out

7)      The High Court dismissed the writ petition [on the ground that the Code of Criminal Procedure has a provision for the Magistrate to take direct cognizance of the facts of complaint by a person (even if FIR has not been registered by the police)]. However, on the issue of additional information regarding involvement of higher officials, the Court observed that it was open to Zakia Jafri to approach the investigative agency for further investigation or, alternatively, approach the concerned Court with request for further investigation

8)      On 3March, 2008, the Supreme Court issued notice to Union of India and State of Gujarat in the appeal filed by Zakia Jafri before it. An amicus curiae was also appointed

9)      In April, 2009, a Special Investigation Team had been constituted to carry out further investigations in nine riots related cases. This SIT was asked to “look into” Zakia Jafri’s complaint

10)   After examining a number of witnesses and looking into a large number of documents made available to it, the SIT filed a report dated 12^th May, 2010 recommending, inter alia, further investigation against certain Police officials and a Minister in the State Cabinet

11)   Further investigations were conducted and report dated 17^th November, 2010 was submitted by the SIT

12)   Around this time, Raju Ramachandran, Senior Advocate and GauravAgarwal, Advocate, replaced the previously appointed amicus curiae

13)   On 20th January, 2011, a preliminary note was submitted by RajuRamachandran

14)   An order was passed asking the SIT to carry out further investigations, if necessary, in light of the preliminary note. The SIT undertook further investigations in the case and submitted a report on 24^th April, 2011

15)   An order was passed by the Supreme Court, whereby the entire case record, including the documents in the reports filed by SIT, were placed before the amicus curiaefor him examine, analyze  and carry out his own independent assessment of the statements of the witnesses, as well as interact with the witnesses, including police officers, if he may deem fit. If the amicus curiae formed an opinion that on the basis of the material on record, any offence was made out against any person, he had to mention the same in his report.

An explanation of the Supreme Court’sobservations and directions on the issue of (1) future course of action follows:

1)      The Court clearly stated that in accordance with the scheme of the Code of Criminal Procedure, there was no course available in law, save and except to forward a final report to the competent Court of trial which then takes cognizance of the offence(s) committed.

2)      The Supreme Court has observed that when it monitors cases,

1. It is concerned with ensuring proper and honest performance of its duty by the investigating agency and not with the merits of the accusations in investigation.
2. The merits of the accusation (meaning thereby, whether a justifiable case against persons who have been alleged to have committed certain offence(s) is made out or not, based on the material on record)[1] are to be determined at the trial on the filing of the charge-sheet in the competent Court, according to the ordinary procedure prescribed by law.

3)      Accordingly, the SIT has been ordered to:

1. forward a final report, along with the entire material collected by the SIT, to the trial Court which had taken cognizance of original Gulberg Society criminal case
2. Before submission of its report, it will be open to the SIT to obtain from the amicus curiaecopies of his reports submitted to the Supreme Court

4)      The trial Court will deal with the matter in accordance with law relating to the trial of the accused. (Accused here refers to the accused as will be named in the report of the SIT)

5)      Now, when a report by the investigation agency is forwarded to the Magistrate, he is empowered to take cognizance of the offence and commence trial of the accused person(s). However, if the Magistrate decides not to take cognizance of the offence and to drop the proceedings or takes a view that there is not sufficient ground for proceeding against some of the persons mentioned in the report, then as per judicial rulings, he is required to give notice to the informant/complainant and provide him/her an opportunity to be heard at the time of consideration of the report. The Supreme Court has reiterated this judicial position in the present case. It has held that if the SIT opines in its report that there is no sufficient evidence or reasonable grounds for proceeding against any person named in the complaint, dated 8th June 2006 (made by Zakia Jafri), then, before taking a final decision on such ‘closure’ report (closure being with respect to the said 2006 complaint) the Magistrate’s Court shall issue notice to the Jafri and make available to her copies of thestatements of the witnesses, other related documents.

An explanation of the Supreme Court’s observations and directions on the issue of (2) continued monitoring of the trial follows:

1)      The purpose and mandate of a continuous monitoring by Court is only to see that proper investigation is carried out.

2)      Once the Court satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with his judicial functions, as this would be against the Constitutional scheme of this country which envisages dispute resolution mechanism by an independent and impartial tribunal. If he errs while passing a judicial order, the same may be a subject-matter of appeal or judicial review.

3)      For all purposes, the investigation in a case comes to an end with the filing of a charge sheet in the competent court. This is true even for investigations entrusted to an independent investigative agency, such as SIT in the present case. Once investigation is complete, it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused.

4)      Thus, it was held that a stage had been reached where the process of monitoring of the present case must come to an end.

What we can take away from this verdict:

1)      The Gulberg Society criminal case is by no means over; rather, its trial has only just begun.

2)   The appeal to the High Court and subsequently Supreme Court was a 3-year interjection in a criminal trial that had already commenced in the Sessions Court.

3)    The Supreme Court has rightly refused to entertain any plea regarding the ‘merits of the accusation’ against certain persons mentioned in the complaint of ZakiaJafri. The power to take cognizance of an offence and sufficient ground for proceeding against the accused person(s) is with the Magistrate in the scheme of our criminal justice system.

4)      At the same time, what the Supreme Court has achieved, through its monitoringof the investigation process by the SIT is to lend credibility to the findings and investigative process of the SIT. Interestingly, the Court has not deemed it fit to pass strictures against any agency, including the SIT, in this case. It can be safely assumed that that the Court has found the conduct and investigations of SIT to be satisfactory or has at least ensured that they are satisfactory.

5)      It is also notable that there is no mandatory direction of the Court to forward the report of the amicus curiae to the Magistrate’s court. From a plain reading of the order, it appears that the SIT has been given discretion to obtain the amicus curiae’s report before forwarding its final report to the court.

6)      The next step in this case is SIT forwarding its final report to the Magistrate as per the terms of the judgment. The final report will contain the details of parties, nature of the information concerning them, the offences appeared to have been committed by them, arrests made, if any etc.

7)      If the SIT final report gives the opinion that there is not sufficient evidence or reasonable grounds for proceeding against any person named in the complaint dated 8th June 2006 (by Zakia  Jeffrey) and the Magistrate concurs with this opinion, then before taking a final decision of this ‘closure’ report, the Magistrate is required to provide a hearing to Zakia Jafri and make available to her documents pertaining to the investigation, including statements by witnesses. This sets the stage for a further set of appeals, in my opinion. The Supreme Court, at present, refused to pass a verdict on the ‘merit of accusations’, because it would have amounted to an overreach of powers of higher judiciary. It is the prerogative of the judicial Magistrate to take cognizance of offence(s) and accordingly file charges against person(s). However, once this decision has been taken by the Magistrate, the merit (or substance) of this decision may be amenable to challenge in the higher courts. Usually, the decision as regards chargesheeting is not contested unless it is unconscionable but we are dealing with an exceptional trial here.