New Delhi: The Supreme Court on Tuesday asked the SIT probing the 2002 communal riots in Gujarat to drop senior IPS officers--Geeta Johri and Shivanand Jha from its team and said the question of staying the trial will be considered after obtaining the State's response.
A three judge special bench of Justices D K Jain, P Sathasivam and Aftab Alam which initially mulled the idea of staying the trial, agreed to pass appropriate orders on April 19, after the Narendra Modi Government stoutly opposed any order without hearing it.
The apex court was hearing an application of an NGO, Centre for Peace and Justice, seeking stay of trial of 10 cases monitored by the Special Investigation Team (SIT) and sought transfer of the probe to CBI.
The Court's direction to the SIT to disassociate Johri and Jha from the team till further orders came after the NGO had made allegations against them that they were not properly assisting the Special Public Prosecutor in the trial.
Gujarat Government contended that the court cannot pass any order staying the trial until the affected parties like the State and the accused were supplied with the documents on which the proceedings were based.
Otherwise, it would be violation of the Criminal Procedure Code (CrPC), it argued.
At the fag end of the hearing, Jha created a flutter when he rose from the visitor's gallery and told the court that officers who were being "dammed" should be heard before any orders are passed against them. The bench agreed to the same.
The bench also fixed April 28 for considering whether there was a need to continue with the SIT headed by former CBI director R K Raghavan in the wake of allegations levelled against the probe panel.
The hearing had commenced on a stormy note with the bench criticising the attitude of the SIT and at one stage was of the view of staying the trial.
However, senior advocate Mukul Rohatgi, appearing for the Gujarat Government, submitted that this court cannot pass any order without hearing and handing over the documents to the state as it would be against the law.
He also said there were adverse comments made by the SIT against the NGO and its office bearers.
He was supported by senior advocate Ram Jethmalani who was appearing for one of the accused named by Zakia Jafri, wife of slain Congress leader Ehsan Jafri in the complaint.
Jethamalani said "justice is a game which has to be played according to the rules but here is the game which is played without any rule".
Jethmalani referred to Jafri's complaint in which Modi along with 62 others are named as an accused and said "if you want to hang all the 63, kindly hang them after hearing them."
Concurring with the two advocates, senior counsel Harish Salve, who is assisting the court as amicus curaie in the matter, suggested that the trial should not be stayed and prosecution witnesses should be allowed to record their statements.
Advocate Kamini Jaiswal, appearing for the NGO opposed the stand of Salve, but the Bench said "there will be no prejudice caused if the prosecution witnesses are examined".
Solicitor General Gopal Subramanium, also assisting the court submitted that the trial of the 10 cases should by stayed as several serious allegations have been made against the SIT and the apex court has to satisfy itself whether the probe agency has performed its role satisfactorily or not.
"There is a sense of discomfiture," he said adding that "the attitude and comments made by the SIT against the Special Public Prosecutor is unfortunate".
During the begining of the hearing, Justice Alam questioned the attitude of the SIT and its members and cited the comments of Jha and senior IPS officer Ashish Bhatia to drive a point that there were serious concerns about their
working.
"If you go by the comments of Jha, he is just dismissing what is said in the Tehelka tape," the judge said adding that "the role of Jha seems to be untenable".
"SIT should have a uniform approach. There is no uniformity in the SIT," Justice Alam said questioning the conduct of Jha, who allegedly did not consider the contents of the Tehelka tape as source material for probing the riot cases.
While the Bench was mulling on staying the trial, Rohatgi said if such a step was taken, "we would be a laughing stock as the trial was earlier stayed for five years and SIT was constituted by the apex court itself after which the trial
had re-commenced".
He said out of 2,100 witnessess, 1061 have already been examined and 110 have turned hostile to suggest that the trial was proceeding in the right direction.
The 10 cases being presently being monitored by the SIT are--Gulberg Society, Ode, Sardarpura, Narodao Gaon, Naroda Patya, Baranpura, Machipith, Tarsali, Pandarwada and Raghavapura.
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