Tuesday, May 22, 2012

"Holes" in the SIT report

This article appeared in The Hoot and can be read here.

No sooner did the SIT’s closure report become public than Express News Service ofIndian Express and Vidya Subramaniam ofThe Hindu set out to puncture what they perceived as holes in the SIT report. Unfortunately, in their eagerness to be early birds, they don’t seem to have considered all aspects of the issues they are highlighting. What are their issues?

Preliminary Report vs. Closure report

The first of the Indian Express stories points to the inconsistencies in the statements of Narendra Modi and top bureaucrats between the Preliminary Report submitted by SIT in May 2010 and its closure report. Vidya Subramaniam also harps on this issue in her article on the “Many twists and turns of February 27, 2002.” This is at best a comparison between apples and oranges.

The Preliminary Report, as admitted by A K Malhotra of SIT who prepared the same, “was not an investigation contemplated by the Cr. P.C. The statements recorded during the enquiry, therefore, do not amount to statements u/s 161 Cr.P.C.” and the amicus curiae also mentions this in Para 3 of his Report whereas SIT’s Closure Report recorded statements of witnesses under the said section. What is the relevance of this section?

Sec 161 (2) makes it mandatory for a person to “answer truly all questions relating to such case put to him by such officer.” So the seriousness, which a witness may attach to a statement u/s 161 may be missing in a statement recorded otherwise. When A K Malhotra mentions in his report that some of the public servants claimed loss of memory, as they did not want to get involved in any controversy, one can understand that the bureaucrats might not have felt compelled to respond to the queries of Malhotra with full earnestness. Another instance, which substantiates this argument, is the fact that when Sanjiv Bhatt was questioned as to why he did not respond to SIT’s public notice calling for witnesses, he replied that he did not want to divulge the facts “unless he was under a legal obligation to do so” (page 33 of SIT report).

Thus, bureaucrats such as Swarnakanta Varma, Ashok Narayan, and P K Mishra, who were tentative as to Sanjiv Bhatt’s presence when answering Malhotra’s questions, were more “categorical” later when SIT questioned them for the Final Report-- a simple fact which Vidya subramaniam chooses to be sarcastic about. Also it can be seen from the SIT closure report that it tried to help the witnesses refresh their memory by showing the photographs of Sanjiv Bhatt and also by probing them further on each of the issues.

Another interesting fact, which the Indian Express story with the sarcastic title “Loss of memory in 2010; recall in 2012” chooses to ignore, is that loss of memory does not seem to be the exclusive privilege of bureaucrats. Zakia Jafri stated that when they were shifted from Gulabarga Society the irate mob would have lynched all of them but for the timely action by the police when her statement was recorded u/s 161 on 6.3.2002. However, she conveniently forgot to disclose this fact when she deposed before Nanavati Commission on 29.8.2003 (page 16 of SIT report). Similarly, Sanjiv Bhatt, who could not recollect on March 22, 2011 who accompanied him to the Chief Minister’s meeting, suddenly remembered them two days later and went to SIT voluntarily to record a further statement. In fact, while Bhatt is cursed with long periods of loss of memory, he seems to be also endowed with a remarkable recalling ability-- that he sent two faxes on 28.2.2002 (or 2.3.2002 as hinted by SIT) which he could not recollect when Sreekumar asked for such evidence in July, 2002, or while talking to A K Malhotra in 2010, or while giving a statement to SIT in March, 2011, he did in December, 2011, just within 9 years of sending them! It is a different matter that these faxes did not seem to have been received by the addressees.

The next discrepancy pointed out by Indian Express relates to Modi’s statement in the Legislative Assembly. While the Preliminary Report quotes Modi as having said “…govt. was considering a proposal for an ex-gratia payment of Rs. 2 lakh…” the Final Report says Modi “announced an ex-gratia payment of Rs. 2 lakh…., ordered a high-level enquiry.” So the discrepancy seems to be “considering a proposal” as against an “announcement” in the final report; also the ordering of a high-level enquiry. One wonders whether these qualify as discrepancies at all! Even if they do, both the reports quote from Assembly records, and Indian Express could have done some research before writing the story.

By definition, a Final Report is much more profound than the Preliminary Report because some of the issues in the latter would have been taken up for further examination, additional witnesses would have been examined, and further documents would have been perused. One of the major events that took place between the two reports was the recording of Sanjiv Bhatt’s statement as suggested by Raju Ramachandran in his interim report. Sanjiv Bhatt’s numerous allegations had to be cross-verified with other witnesses and documentary evidence. Additional facts emerged out of this extensive probe, which were recorded in the Final Report. SIT’s closure report has not disputed the conclusions of the Preliminary Report on what Ramachandran calls “the most important allegation” viz. Modi’s alleged statement in the Law and Order meeting on February 27, 2002. In fact it has added additional evidence to support the conclusion.

Read further my article in The Hoot.

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