'The Gulbarg case judge used to browbeat witnesses'

R K Shah, the special public prosecutor in the high profile Gulbarg Society massacre case, in which 69 people were killed including former Congress MP Ehsan Jafri on February 28, 2002, resigned on February 24 from the case after cross-examaning 290 witnesses (almost 90 per cent) since July 1, 2009.

He had been appointed by the Special Investigating Team mandated by the Supreme Court to look into nine cases of rioting in the aftermath of the burning down of Sabarmati Express in Godhra on February 27, 2002.

"It was bound to happen. There were some people who had opposed my appointment then," he says wryly sitting inside his office near the historic Lal Darwaza at Vasant Chowk in Ahmedabad.

Later he found that he was fighting a lost cause when the investigating officers purposely (he took some time before he admitted it could have been done purposely) gave him case papers and important documents related to the case at the eleventh hour thereby trying "to weaken the prosecution".

The last straw came when he realised that the judge presiding over the case was not sympathetic to the victims and one investigating officer of SIT was "not cooperating much either" with the prosecution.

Interestingly, he is yet to get any word if his resignation is accepted or rejected. The 74-year-old lawyer found some time to speak with rediff.com's Prasanna D Zore about why he quit as a special public prosecutor, the problems he faced in trying to get the accused convicted and whether the Tehelka tapes released by Teesta Setalvad of Citizens for Peace on March 22 could help prove Gujarat Chief Minister Narendra Modi's complicity in the Gulbarg Society case.

Why did you quit as a special public prosecutor?

Generally I found the judge (B U Joshi) unsympathetic to the victims and eyewitnesses. Also, the SIT investigating officer, James Suthar (a deputy superintendent of police), was not cooperating much either.

Why would you say that the judge was unsympathetic towards the victims?

He used to browbeat the witnesses.

And why would the judge do it?

That is the matter of inference. Anybody can infer whatever one wants to.

Where do you think are the Godhra riot cases are heading given the current situation?

Now it all depends upon what the Supreme Court decides ultimately regarding the re-constitution of SIT. Because (senior advocate) Ram Jethmalani filed a petition on behalf of Kalu Bhai Maliwar (BJP MLA and an accused in the Gulbarg society case) challenging the constitution of SIT or saying that there is no utility of SIT now or SIT was constituted without hearing those (the accused) persons. So everything now depends on what view the Supreme Court takes.

Do you think it was the state government that put pressure on the judge to browbeat witnesses?

No I didn't find any such thing when I was the special public prosecutor.

Do you think this case will ever reach its logical conclusion given the frustrating way in which the system is working?

It must reach. It must reach.

What do you think could be this logical conclusion?

Either conviction or acquittal of the accused (laughs).

But you were trying for the conviction of the accused?

Yeah. But then that is the function of the prosecutor to get conviction of the accused, fairly, of course.

Do you think conviction of the accused will ever be possible given the situation prevailing in Gujarat?

See it is difficult to say… but for how long, for how long. These cases can be transferred to other states. If that were to happen where would the system be? It requires little introspection.

On whose part?

On the part of the people administering the system including the judiciary, legislature, everybody. Something should be done to rebuild confidence in our institutions.

Whose confidence?

The minorities (in Gujarat) because they are the ones who are asking for transfer of cases outside the state.

During your prosecution did you come across or even now is there any direct evidence that has come before the court that could nail the Gujarat chief minister?

No direct evidence yet. At least I did not come across any such evidence when I was the special public prosecutor.

Sir, do you think it is the media that is trying Narendra Modi? Whoever wants attention goes after the Gujarat CM?

I don't think it is wholly media hype. There might be some truth in what the media is saying but then it is sometimes blown out of proportion.

Do you think the audio-visuals released by Teesta Setalvad and Tehelka can act as incriminating evidence against Narendra Modi?

By itself, no. Because they are statements made by other people. We would not know if they could stand legal scrutiny. However, these tapes and the transcripts have relevance but it is arguable relevance. After all, these tapes are the result of a sting operation and one has to look at it with a pinch of salt.

What is so suspicious or unlawful about such sting operations?

People don't understand sting operations. People won't take it at face value.

But what does the law say about such sting operations and evidence coming out of such operations in a court of law?

I have not read the judgment in the (advocate) R K Anand case (where he was accused after a sting operation) where it says the Supreme Court has said that it is legal. But how much value could be attributed to such evidence is a different thing. There are well set principles of appreciation of the nature of evidence in a court of law.

How long do you think the victims of the post-Godhra riots in Gujarat will have to wait to get justice?

As of now the trials are on in various cases. Unfortunately there is a stay on Gulbarg trial now but other trials are still on.

Tell us about the problems you faced as a special public prosecutor in fulfilling your duties?

The values are deteriorating. There is no honesty, integrity, nobody wants to speak the truth and therefore witnesses turn hostile. Many poor witnesses when paid money to turn hostile. Something has to be done to improve the lack of character shown by a lot of Indians.

How do you say witnesses turn hostile? Sometimes the witnesses don't speak according to the statement they have given to the police. Or we presume that the police have recorded their statements correctly. Maybe the police have not recorded what the witness told them and the witness is saying the truth in the court.

Therefore, it is the entire system the investigation, the prosecution and the defence have to shoulder the responsibility of developing a strong moral character.

What problems did you face as a special public prosecutor in the Gulbarg case?

All the papers pertaining to the case were not given to me by various investigating agencies handling the matter. At the eleventh hour they would give the paper to me and I would not have enough time to study the papers, to talk to witnesses on that aspect of the case.

Do you think it was done purposely to weaken the case of the victims?

That I can't say (laughs).

What else could explain you being given case papers at the eleventh hour?

They should have given the papers to me in advance so that I could have studied them and prepared by prosecution.

But it didn't happen? Was it done purposefully to scuttle the case?

Yes. It was done to weaken the prosecution's case.

What could have helped you prove all the allegations levelled against the accused by the victims of the Gulbarg case?

Honest recording of statements was necessary.

By who?

By the various investigating agencies including SIT officers, including the Gujarat police. Witnesses have made allegations against the Gujarat police and SIT officers

And they all failed in honestly recording the statements of the witnesses?

Yes, I would like to think so.

Sir, what kind of a SIT chairman do you have who's not present at the SIT office in Gandhinagar when the entire media was agog with the news of Narendra Modi likely to appear before the SIT on March 21?

Why should you think that a chairman of an investigating body should be always present in Gandhinagar? The other officers of the team are here to take care of that.

Agreed. But it was a big day when for the first time in the history of this country the chief minister of a state was to be present in front of the Supreme Court-appointed SIT to answer criminal charges levelled against him.

He should have been here. It would have been better if he were here.

Image: R K Shah | Photograph: Sanjay Sawant