2022 Supreme(SC) 542

SUPREME COURT OF INDIA
A.M. KHANWILKAR, DINESH MAHESHWARI, C.T. RAVIKUMAR, JJ.
Zakia Ahsan Jafri – Appellant
Versus
State of Gujarat & Anr. – Respondents
Criminal Appeal No. 912 of 2022 (arising out of SLP(Crl.) No. ………./2022 @ Diary No. 34207 of 2018)
Decided On : 24-06-2022

IMPORTANT POINTS
(1) Misgovernance or failure to maintain law-and-order during a brief period may not be a case of failure of constitutional machinery in context of tenets embodied in Article 356 of Constitution.
(2) Every act of commission and omission would not result in hatching criminal conspiracy unless the acts have been done deliberately and there is meeting of minds of all concerned.
(3) For being a case of strong suspicion, there must exist sufficient materials to corroborate facts and circumstances of case.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 173(8) – Gujarat riots post Godhra train carnage on 27.2.2002 – Further investigation by SIT into allegation was against then Chief Minister and Ministers of 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 Indian Penal Code and Section 6 of Commission of Inquiry Act, 1952 and also under various provisions of Gujarat Police Act, 1951 and Human Rights Act, 1991 – Duty of investigating officer is to collate every relevant information/material during investigation, which he must believe to be actual course of events and true facts unravelling commission of alleged crime and person involved in committing the same – He is expected to examine materials from all angles – In the event, there is sufficient evidence or reasonable ground that an offence appears to have been committed and person committing such offence has been identified, investigating officer is obliged to record his opinion in that regard – If investigating officer intends to send accused for trial, he is obliged to form a firm opinion not only about commission of offence, but also about involvement of such person in commission of crime – For being a case of strong suspicion, there must exist sufficient materials to corroborate facts and circumstances of case and be of such weight that it would facilitate Court concerned to take cognizance of crime and eventually lead it to think (form opinion) that there is ground “for presuming that accused has committed an offence”, as alleged so as to frame a charge against him in terms of Section 228(1) or 246(1) of Code. (Paras 11 and 12)

(B) Indian Penal Code, 1860 – Section 302 read with Section 120B, Section 193 read with Section 114 and Sections 185, 153A, 186 and 187 – Gujarat riots post Godhra train carnage on 27.2.2002 – Successive orders passed by this Court and directions issued to SIT were only to look into aspects that were not part of cases investigated by SIT including four criminal cases concerning Gulberg Society as the same were already registered and proceeded for trial, in particular, criminal conspiracy hatched in commission of those crimes – What remained to be looked into was only about allegations of larger conspiracy at highest level which resulted into causing mass violence across the State during relevant period – Conspiracy can be hatched at different levels – Conspiracy hatched at middle or lower level in concerned cases filed across the State, including Gulberg Society incident unfolded on 28.2.2002 involving killing of husband of appellant and others, covering nine sets of cases assigned to SIT by this Court already covered expanse of criminal conspiracy concerning those cases – Directions and clarifications given by this Court from time to time in present case have not been put in issue nor any grievance had been set forth from any quarter at any stage – Resultantly, ordinary course to be adopted by Magistrate under the Code in other cases cannot be invoked in present case – SIT has been able to collate materials indicative of amount of hard work and planning of concerned State functionaries in their attempt to control spontaneous evolving situation of mass violence across State of Gujarat, despite handicap of administration including inadequate State police force required to be replenished with central forces/Army, which were called without loss of time and repeated appeals made by then Chief Minister publicly to maintain peace – Enquiry to be made in this case is essentially regarding allegations of larger criminal conspiracy at highest level – That itself has, now, in a way, been abandoned by appellant in this appeal – It must follow that no other aspect needs to be examined in this appeal as finding of Magistrate and of High Court in that regard, is being allowed to become final. (Paras 17, 18, 23, 36 and 37)

(C) Indian Penal Code, 1860 – Section 302 read with Section 120B, Section 193 read with Section 114 and Sections 185, 153A, 186 and 187 – Gujarat riots post Godhra train carnage on 27.2.2002 – Inaction or failure of some officials of one section of State administration cannot be the basis to infer a pre-planned criminal conspiracy by authorities of State Government or to term it as a State sponsored crime (violence) against minority community – Inaction and negligence of erring officials cannot pass muster of hatching of a criminal conspiracy for which degree of participation in planning of commission of an offence of this magnitude must come to fore in some way – SIT was not there to enquire into failures of State administration, but remit given to it by this Court was to enquire into allegations of larger criminal conspiracy at highest level – Conspiracy cannot be readily inferred merely on the basis of inaction or failure of State administration – In enquiry undertaken by SIT, it had been found that developments were in quick succession and had overrun arrangements already in place – Protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of State administration at different levels during such horrendous situation, little knowing or even referring to ground realities and continual effort put in by duty holders in controlling spontaneous evolving situation unfolding aftermath mass violence across the State – Linking of such failures is not enough to entertain a suspicion about hatching of criminal conspiracy at the highest level – Overrunning of State administration is not an unknown phenomenon – It has been witnessed all over globe during second wave of Pandemic, where countries with even best of medical facilities crumbled and their management skills were overrun under pressure – Misgovernance or failure to maintain law-and-order during a brief period may not be a case of failure of constitutional machinery in context of tenets embodied in Article 356 of Constitution – Magistrate, as well as, High Court committed no error whatsoever in accepting final report presented by SIT. (Paras 43, 44, 45 and 47)

(D) Indian Penal Code, 1860 – Section 120B – Criminal conspiracy – Every act of commission and omission would not result in hatching criminal conspiracy unless acts have been done deliberately and there is meeting of minds of all concerned – Conspiracy requires an act (actus reus) and an accompanying mental state (mens rea) – Agreement constitutes act and intention to achieve unlawful objective of that agreement constitutes required mental state – 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 – Rationale of conspiracy is that required objective manifestations of dispositions of criminality is provided by act of agreement – To convict a person of conspiracy, prosecution must show that he agreed with others that together they will accomplish unlawful object of conspiracy – Inaction in response or even in a given case of non-responsive administration, can be no basis to infer hatching of criminal conspiracy by authorities of State Government in absence of any clear evidence about meeting of minds. (Paras 47 and 64)

(E) Gujarat Riots – Act of transfer/posting of officials has been after unfolding of mass violence across the State – It was an administrative matter to address expediencies of that situation – SIT has done everything possible to look into each allegation noted in complaint and after collating relevant materials, have formed its opinion, not only allegation-wise, but also offender-wise and witness-wise – Appellant having failed to provide sufficient material to raise serious suspicion in respect of allegation of hatching of criminal conspiracy for intended mass violence, cannot be heard to make that deficiency by raising allegation of kind of appointments of public prosecutors during trial of concerned cases – Despite humungous task undertaken by members of SIT with sincerity, objectivity and dispassionately including to satisfaction of this Court in all these cases, argument of appellant was bordering on undermining integrity and sincerity of members of SIT – No fault can be found with approach of SIT in submitting final report dated 8.2.2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across State against minority community during the relevant period – SIT has gone by logic of falsity of information or material and including the same remaining uncorroborated – In that, materials collected during investigation do not give rise to strong or grave suspicion regarding hatching of larger criminal conspiracy at highest level for causing mass violence across the State against minority community and more so, indicating involvement of named offenders and their meeting of minds at some level in that regard – SIT had formed its opinion after considering all materials collated during investigation – Question of further investigation would have arisen only on availability of new material/information in connection with allegation of larger conspiracy at highest level, which is not forthcoming in this case – It is not open to hold that investigation by SIT in present case has been deficient or infirm – Final report, as submitted by SIT, ought to be accepted as it is, without doing anything more – Decision of Magistrate in accepting stated final report dated 8.2.2012 submitted by SIT, upheld and appeal dismissed. (Paras 70, 73, 81, 85, 89, 91 and 92)

Facts of the case:

Present matter essentially emanates from the sui generis directions given by this Court on 27.4.2009, whilst considering challenge to the decision of the High Court dated 2.11.2007, rejecting the prayer of the appellant for issuing direction to the concerned authority to register FIR on the basis of complaint presented by her on 8.6.2006 to the Director General of Police, Gujarat. However, this Court vide stated order (dated 27.4.2009, directed the SIT appointed by it in terms of the order dated 26.3.2008, to “look into” the complaint dated 8.6.2006 and take steps as required by law and to give its report to this Court within three months.

Findings of Court:

Our analysis regarding sting operation or the Tehelka Tape and its transcript, is not a final determination regarding the evidentiary value thereof because the same will have to be dealt with in appropriate proceedings, in particular, other cognate criminal cases investigated by the Supreme Court appointed SIT including those pending before High Court and this Court.

Result : Appeal dismissed.