It is for the court and not the Supreme Court appointed Special Investigation Team to decide whether the post-Godhra riots of 2002 were a result of the Gujarat government's criminal lapse as part of a larger conspiracy or not, Zakia Jafri's lawyer said.
On behalf of Jafri, Advocate Mihir Desai also argued that the SIT failed to investigate the Gujarat state government's lapses in implementing state government's Police Manual and Communal Riots Scheme of 1997 to deploy the army during the 2002 post-Godhra riots.
"Whether the Gujarat government intentionally failed to take preventive steps or not, or any administrative lapse during riots amounts to criminal lapse or not is something which should be decided by the court and not by the SIT," Desai said.
He made his argument before Metropolitan Magistrate B J Ganatra, on behalf of Zakia Jafri who had filed a petition protesting the closure report of the Supreme Court appointed SIT which, gave a clean chit to Gujarat Chief Minister Narendra Modi and others.
She has also demanded that Modi and others should be chargesheeted and the investigation be handed over to another independent agency.
Desai submitted that when an agency, such as the SIT, has been assigned the investigation of large scale violence which, as per allegations, happened as part of a larger conspiracy, it has to probe whether the government could have anticipated such situation.
It also has to probe if the government could not have anticipated such a situation, and if it did anticipate it, what steps the government had taken to prevent it, he said.
"The SIT should have probed that after the ghastly incidence at Godhra station, in which 59 people died, how many preventive arrests were made, whether the government took serious action against hate mongers and if the army was deployed in time, besides what powers were given to army, to which areas was the army sent, as well as what was the response of the fire brigade authorities during the riots," he said.
"As per then Ahmedabad Police Commissioner P C Pande, a total of 3,761 preventive arrests were made. But did the SIT probe how many of them were arrested on the night of February 27, 2002, and who were arrested", he questioned.
"Ahmedabad was the worst affected city in the whole state and as per Pande's statement, no preventive arrests were made from the most sensitive areas such as Naroda, Narol, Meghaninagar, Shaherkotada, Ghatlodia. Besides, arrests were made in two months, after February 28 and most of them were arrested under the Prohibition Act," he argued.
About the allegation of undue delay in the deployment of the army, Desai said, "We are not saying that army was not called. But pertinent questions which the SIT should have asked was, when exactly was it called, what powers were given to the army and in which areas it was deployed".
"Despite Mehsana district being the third worst affected area in the state, no army was sent there and in the second worst affected area of Panchmahal district, the army was sent only to the district headquarters of Godhra, but not to the rural areas," he said.
He also argued that on the issue of deployment of the army, instead of reaching on a conclusion on the basis of then Chief Secretary Ashok Narayan, the SIT should have also investigated the army major who was in-charge at that time. Further arguments will continue on Friday.