ZAKIA AHSAN JAFRI versus STATE OF GUJARAT & ANR.

[2022] 6 S.C.R. 1

ZAKIA AHSAN JAFRI

STATE OF GUJARAT & ANR.

(Criminal Appeal No. 912 of 2022)

JUNE 24, 2022

[A. M. KHANWILKAR, DINESH MAHESHWARI ANDC. T. RAVIKUMAR, JJ.]

Gujarat Riots – Godhra incident of 27.2.2002, in which largenumber of Kar-sevaks, returning from Ayodhya, were burnt alive intrain bogies – As aftermath of that incident, there was unrest andviolence all across the State of Gujarat – violent mob attackedthe inhabitants of one Gulberg Society, killing 69 persons includingthe husband of appellant – Complaint dated 8.6.2006 of appellantto Director General of Police, Gujarat and other high officials interalia containing allegations of “larger conspiracy at the highest level”which resulted into causing mass violence across the State duringthe relevant period – Such allegations founded on the allegedutterances made by the then Chief Minister while addressing theDGP, the then Chief Secretary and other senior officials of the State– Towards this, reference made to meeting held on 27.2.2002 eveningin Gandhinagar, as testified in the affidavit of Mr. R.B. Sreekumar,the then Additional Director General of Police (Intelligence) –Reliance placed on report of private panel of former Judges ofSupreme Court titled “Concerned Citizens Tribunal” which referredto testimony before them of late Mr. Haren Pandya, former Minister– Additionally, reliance placed on testimony of Mr. Sanjiv Bhatt,the then Superintendent of Police (Security), who claimed to haveattended the meeting convened by the then Chief Minister on27.2.2002 – Held: The testimony of Mr. Sanjiv Bhatt, Mr. HarenPandya and also of Mr. R.B. Sreekumar was only to sensationalizeand politicize the matters in issue, although, replete with falsehood– There was coalesced effort of the disgruntled officials of theState of Gujarat alongwith others to create sensation by makingrevelations which were false to their own knowledge – The falsityof their claims had been fully exposed by the SIT (appointed bySupreme Court) after thorough investigation – To make out caseof larger criminal conspiracy, it is essential to establish link

Aindicative of meeting of minds of the concerned persons forcommission of the crime(s), committed during the relevant periodacross the State – No such link is forthcoming, much less had beenunraveled and established in any of the nine cases investigated bythe same SIT under the directions of Supreme Court – In light of thetimely corrective measures taken by the State Government in rightBearnest and repeated public assurances given by the then ChiefMinister that guilty will be punished for their crime(s), and tomaintain peace, it would be beyond comprehension of any personof ordinary prudence to bear suspicion about the meeting of mindsof named offenders and hatching of conspiracy by the State at theChighest level, as alleged, much less grave or strong suspicion asbeing the quintessence for sending the accused for trial for anoffence of criminal conspiracy – Breakdown of law-and-ordersituation if for short duration, cannot partake the colour ofbreakdown of rule of law or constitutional crisis – No fault foundwith the approach of the SIT in submitting final report for discardingDthe allegations regarding larger criminal conspiracy (at the highestlevel) for causing and precipitating mass violence across the Stateduring the relevant period – Decision of the Magistrate in acceptingthe final report submitted by the SIT, is upheld as it is and the protestpetition filed by the appellant is rejected – Submission of appellantEregarding infraction of rule of law in the matter of investigationand the approach of the Magistrate and the High Court in dealingwith the final report, cannot be countenanced – Penal Code, 1860– s.302 r/w s.120B, s.193 r/w s.114 and ss.185, 153A, 186 and 187– Commission of Inquiry Act, 1952 – s.6 – Gujarat Police Act, 1951– Human Rights Act, 1991.FConstitution of India, 1950 – Art. 356 – Failure ofConstitutional machinery – Breakdown of law and order – Whenmade out – Held: Mis-governance or failure to maintain law-and-order during brief period may not be case of failure ofconstitutional machinery in the context of tenets embodied in Art.356G– There must be credible evidence regarding State sponsoredbreakdown of law-and-order situation; not spontaneous or isolatedinstances or events of failure of State administration to control thesituation.

Gujarat Riots – Allegations of criminal conspiracy on theHpart of the State authorities – Forwarding of messages by the

intelligence agencies including inaction or lack of effective measurestaken by the concerned officials – Effect of – Held: It does not perse imply criminal conspiracy on the part of the State authorities –Inaction of the duty holders to take those messages (of intelligenceagencies) to its logical end, cannot be regarded as act of criminalconspiracy unless there is material to provide link regarding themeeting of minds and deliberate act to effectuate plan to spreadmass violence across the State.

Gujarat Riots – Allegations of criminal conspiracy on thepart of the State authorities – Inaction or failure of some officialsof one section of the State administration – Held: Cannot be thebasis to infer pre-planned criminal conspiracy by the authoritiesof the State Government or to term it as State sponsored crime(violence).

Dismissing the appeal, the Court

HELD:1.1. The allegations made in the complaint ofappellant relating larger criminal conspiracy at the highest levelhave been duly enquired into by the SIT appointed by the SupremeCourt. The SIT considered the relevant materials to concludethat the claim of concerned persons is false and figment ofimagination. For that, the SIT had recorded statements of all thoseofficials who were present in the said meeting. They stated inone voice that Mr. Sanjiv Bhatt was not present in the reviewmeeting convened under the Chairmanship of the then ChiefMinister. The SIT had also collected relevant documentaryevidence to establish the falsity of the claim of Mr. Sanjiv Bhattof being present in that meeting. [Para 25][137-A-C]

1.2. It is, thus, not case of one version against the other,but of false claim set up by Mr. Sanjiv Bhatt of being personallypresent in the stated meeting. Therefore, the SIT after thoroughinvestigation has recorded its opinion that neither Mr. Sanjiv Bhattnor Mr. Haren Pandya was present in the stated meeting.Similarly, even Mr. R.B. Sreekumar had no personal knowledgeas he did not attend the said meeting. Besides, Mr. R.B.Sreekumar was disgruntled officer. The SIT recorded thestatements of the concerned officials and after analyzing the same,

Aopined that all the officials who were present in the stated meetinghad said in one voice that Mr. Sanjiv Bhatt, the then DCI (Security)was not present in that meeting. The SIT then analyzed the claimof Mr. Sanjiv Bhatt that he was present in the meeting by referringto official records including the call records of his mobile phoneNo. [REDACTED] to conclude that he had set up false plea ofBbeing present in the stated meeting. The SIT has adverted tothe materials collected during investigation clearly reflecting onthe conduct of Mr. Sanjiv Bhatt including his false claim of beingpresent in the stated meeting. The final report of the SIT hasanalyzed these aspects in detail. [Paras 26, 27][137-C-D; 138-B-CE]1.3. There is force in the argument of the respondent-Statethat the testimony of Mr. Sanjiv Bhatt, Mr. Haren Pandya andalso of Mr. R.B. Sreekumar was only to sensationalize andpoliticize the matters in issue, although, replete with falsehood.DFor, persons not privy to the stated meeting, where utteranceswere allegedly made by the then Chief Minister, falsely claimedthemselves to be eye-witnesses and after thorough investigationby the SIT, it has become clear that their claim of being presentin the meeting was itself false to their knowledge. On such falseEclaim, the structure of larger criminal conspiracy at the highestlevel has been erected. The same stands collapsed like houseof cards, aftermath thorough investigation by the SIT. [Para34][157-F-G; 158-A-B]

1.4. It is only because of the ultra-sensational revelationFprojected by Mr. Sanjiv Bhatt and Mr. Haren Pandya, whounabashedly claimed to be privy to the utterances made by thethen Chief Minister in an official meeting, the constitutionalfunctionaries and this Court was required to move into actiontaking serious note of the same. But, after thorough investigationby the SIT, the falsity of such claim has been fully exposed on theGbasis of credible indisputable materials collated by the SIT duringthe investigation in that regard. Besides exposing the falsity ofthe claims of these two persons, the SIT has been able to collatematerials indicative of the amount of hard work and planning ofthe concerned State functionaries in their attempt to control the

spontaneous evolving situation of mass violence across the Stateof Gujarat, despite the handicap of administration including theinadequate State police force required to be replenished withcentral forces/Army, which were called without loss of time andthe repeated appeals made by the then Chief Minister publiclyto maintain peace. [Paras 35, 36][158-B-E]

2.1. It is seen that the allegation of larger criminalconspiracy at the highest level spelt out in the complaint andprotest petition, was in reference to the sensational revelationmade by Mr. Sanjeev Bhatt and Mr. Haren Pandya, the falsitywhereof has been exposed by the SIT. As result, now theappellant is pursuing the same allegation by relying on so-calledundisputed extra-judicial confessions recorded in Tehelka tapeson the specious plea that there can be no direct evidenceregarding larger conspiracy. [Para 38][159-A-B]

2.2. To make out case of larger criminal conspiracy, it isessential to establish link indicative of meeting of minds of theconcerned persons for commission of the crime(s), committedduring the relevant period across the State including the heart-rending episode unfolded at Godhra on 27.2.2002, in which largenumber of Kar-sevaks were burnt alive in train bogies. No suchlink is forthcoming, much less had been unraveled and establishedin any of the nine (9) cases investigated by the same SIT underthe directions of this Court. Accepting the argument of theappellant would require questioning the wisdom of this Courtand to hold that even the incident at Godhra unfolded on 27.2.2002was also the outcome of alleged larger criminal conspiracy. Sucha view would be preposterous. [Para 39][159-D-F]

3.1. The Godhra incident has been fully enquired into bythe SIT to the satisfaction of this Court and even the trial hadended in recording conviction against the concerned accused(belonging to minority community). As to how the Godhra incidentunfolded, has been analyzed by the High Court in confirmationappeals in Godhra train case about the acts of planning andcommission by group of persons. [Para 40][159-G-H]

DEF

A3.2. Forwarding of messages by the intelligence agenciesincluding inaction or lack of effective measures taken by theconcerned officials per se does not imply criminal conspiracy onthe part of the State authorities. Absent tangible materialsuggestive of chain or any perceivable link or connection withthe unfolding of mass violence across the State, it is unfathomableBas to how the SIT could have still recommended sending thealleged offenders for trial, much less would obligate the concernedCourt to take cognizance on such unfounded allegations. Thereis no material forthcoming to indicate that there was failure onthe part of intelligence to collect information and it was deliberateCact on the part of the State Government authorities. Whereas,the allegation is that intelligence inputs were collected anddisseminated to concerned authorities, but not acted upon bythe concerned officials in right earnest. [Para 40][159-H; 160-A-

D3.3. Inaction of the duty holders to take those messages toits logical end, cannot be regarded as act of criminal conspiracyunless there is material to provide link regarding the meeting ofminds and deliberate act to effectuate plan to spread massviolence across the State. The SIT had recorded statement ofMr. Ashok Narayan, the then ACS (Home), Gujarat, datedE12.12.2009. This version belies the claim of the appellant includingthe unfounded allegation of criminal conspiracy at the highestlevel for causing mass violence across the State. The materialsgathered by the SIT on the other hand, would suggest that despitethe corrective measures taken by the concerned officials in rightFearnest, the situation evolved in unpredictable and sporadicmanner and the expanse of the activities were such that the Stateadministration was completely overrun. [Para 41][160-D; 161-E]

3.4. The SIT had not found any conspiracy for linking theseparate incidents of mass violence across the State during theGinvestigation of nine (9) separate crimes including the Godhratrain incident, dealt with by the SIT under the strict vigil andsupervision of this Court and with the Amicus Curiae playing therole of devil’s advocate. Whereas, the messages generated bySIB from time to time even before 27.2.2002, in fact would go to

show that the concerned officials were vigilant, but the situationas evolved post Godhra incident, was unparalleled and hadoverrun the State administration. [Para 42][161-F-G]

4. In any case, inaction or failure of some officials of onesection of the State administration cannot be the basis to infer apre-planned criminal conspiracy by the authorities of the StateGovernment or to term it as State sponsored crime (violence)against the minority community. The SIT had noted that inactionand negligence of the erring officials has been taken note of atthe appropriate level including by initiating departmental actionagainst them. Such inaction or negligence cannot pass the musterof hatching of criminal conspiracy, for which the degree ofparticipation in the planning of commission of an offence of thismagnitude must come to the fore in some way. [Para 43][161-H;162-A-B]5. Conspiracy cannot be readily inferred merely on the basisof the inaction or failure of the State administration. In the enquiryundertaken by the SIT, it had been found that the developmentswere in quick succession and had overrun the arrangementsalready in place or for that matter, additional support by callingArmy on 28.2.2002 itself besides the curfew imposed in the mostdisturbed areas of the State. In light of such timely correctivemeasures taken by the State Government in right earnest andrepeated public assurances given by the then Chief Minister thatguilty will be punished for their crime(s), and to maintain peace,it would be beyond comprehension of any person of ordinaryprudence to bear suspicion about the meeting of minds of namedoffenders and hatching of conspiracy by the State at the highestlevel, as alleged, much less grave or strong suspicion as beingthe quintessence for sending the accused for trial for an offenceof criminal conspiracy. [Para 44][162-C-E]

6.1. The protagonists of quest for justice sitting in acomfortable environment in their air-conditioned office maysucceed in connecting failures of the State administration atdifferent levels during such horrendous situation, little knowingor even referring to the ground realities and the continual effortput in by the duty holders in controlling the spontaneous evolving

Asituation unfolding aftermath mass violence across the State. Thelinking of such failures is not enough to entertain suspicionabout hatching of criminal conspiracy at the highest level, whichrequires concerted effort of all the persons concerned and moreimportantly, clear evidence about meeting of the minds toaccomplish such design, much less of causing and precipitatingBmass violence across the State. Be that as it may, overrunning ofState administration is not an unknown phenomenon. [Para45][162-F-G; 163-C]

6.2. Breakdown of law-and-order situation if for shortduration, cannot partake the colour of breakdown of rule of lawCor constitutional crisis. To put it differently, misgovernance orfailure to maintain law-and-order during brief period may notbe case of failure of constitutional machinery in the context oftenets embodied in Article 356 of the Constitution. There mustbe credible evidence regarding State sponsored breakdown of

Dlaw-and-order situation; not spontaneous or isolated instancesor events of failure of State administration to control the situation.The breakdown of law-and-order situation in the State includingattributable to the alleged inaction of the (State) duty holders,owing to spontaneous mass violence cannot be safe measure toinfer as being part of the criminal conspiracy at the highestElevel of political dispensation unless there is clear evidence toso conclude regarding meeting of the minds of all concerned andtheir concerted efforts to commit or promote commission of suchcrime. The allegation in the present case, if at all relevant, wasfounded on falsehood of the claim of Mr. Sanjeev Bhatt and Mr.FHaren Pandya regarding the utterances of the then Chief Ministerin review meeting chaired by him – which stood completelyexposed after the investigation by the SIT. [Para 45][163-D-G]

6.3. For the same reason, it would not be open to theconcerned Court to take cognizance or to call upon the SIT to doGfurther investigation absent any tangible material. On the otherhand, the opinion recorded by the SIT has dealt with the materialsto conclude that it cannot be said that no action had been takenon letters sent by Mr. R.B. Sreekumar. Similarly, while dealingwith the allegation [No. (xiv)] regarding undue delay in requisition

and deployment of Army, the SIT had opined that there wasgenuine problem of deploying Army despite sending of requisitionon 28.2.2002 at 1300 hrs., which message was sent by fax to theUnion Defence Secretary, Ministry of Defence at 1430 hrs. andthe time taken in posting the Army after its arrival due to logisticalreasons. [Para 46][163-H; 164-A-B]

6.4. There is no tittle of material, much less tangible materialto support the plea of the appellant that the Godhra incidentunfolded on 27.2.2002 and the events which followed, was pre-planned event owing to the criminal conspiracy hatched at thehighest level in the State. It is well settled that conspiracy requiresan act (actus reus) and an accompanying mental state (mens rea).The agreement constitutes the act and the intention to achievethe unlawful objective of that agreement constitutes the requiredmental state. The offence of conspiracy is independent of otheroffences. It takes place when there is an agreement to do orcause to be done an illegal act, or an act which may not be illegalbut by illegal means. The rationale of conspiracy is that therequired objective manifestations of dispositions of criminality isprovided by the act of agreement. To convict person ofconspiracy, the prosecution must show that he agreed with othersthat together they will accomplish the unlawful object of theconspiracy. Inaction in the response or even in given case ofnon-responsive administration, can be no basis to infer hatchingof criminal conspiracy by the authorities of the State Governmentin absence of any clear evidence about the meeting of minds; andthat, failure to respond to the messages sent by SIB was aconcerted and deliberate act of omission or commission on thepart of the State and other functionaries, as alleged. The SIT hadrecorded the statements of all concerned including the officialsbefore forming the opinion, as noted in the final report, to discardthe allegation under consideration. The Magistrate, as well as,the High Court committed no error whatsoever in accepting thefinal report presented by the SIT. [Para 47][164-C-G; 165-A]

7. The argument pressed into service about the existenceof materials regarding build-up of communal mobilizations and

Astockpiling of weapons, arms and ammunitions even before theGodhra episode on 27.2.2002 being part of the larger criminalconspiracy, is devoid of merits. This argument proceeded on anerroneous assumption that the SIT had not investigated into thiscrucial matter. [Para 48][165-B]

8.1. The SIT has not found any conspiracy, linking separateand disparate acts of arson and looting or outrageous claims madein sting operations or individual utterances/publications ofpurported hate speech, to any singular larger conspiracy orplanned event. The materials gathered during the investigation,Cin no way link any “meeting of the minds” in any of the nine (9)cases investigated by the SIT or for that matter, other incidentsalleged in the complaint or the protest petition. The riots acrossthe State had taken place spontaneously, immediately after theGodhra Train Carnage. In the investigation done by the SIT in allthe nine (9) sets of cases, no material was discovered pointingDtowards any meeting of minds/conspiracy in the higher echelonsof the administration or the political establishment conspired withother persons to cause such riots or for having turned nelson’seye when the riots had triggered and continued. There is no chainor any perceivable link or connection in these occurrences duringEthe relevant period, which ought to be the quintessence had itbeen case of larger conspiracy at the highest level. Indeed, thefactum of conspiracy can be inferred, but absent any perceivablelink, much less about the meeting of minds of all concerned, it isnot open to assume conspiracy in the air. [Para 53][173-D-G]8.2. It is amply clear that the argument pressed into serviceon the premise of no investigation done by SIT on crucial mattersis contrary to the materials on record and the opinion recordedby the SIT is after due consideration of all aspects and backed bytangible materials gathered during investigation by it. [Para54][173-H; 174-A]

8.3. For the same reason, the argument regarding massmobilizations and hate speech on 27.2.2002 regarding proactiveand aggressive behaviour of persons returning from Ayodhaya/Karsevaks after the Godhra attack, is tenuous. [Para 55][174-B]

9.1. Much argument was made about the postmortem ofdead bodies in the open in Railway yard and also, parading themfrom Godhra to Ahmedabad. According to the appellant, the post-mortem was done in the open yard as part of larger criminalconspiracy to obliterate the real cause of death of 243 Kar-sevaksat Godhra due to fire and then to transport the dead bodies toAhmedabad so as to parade them amidst shouting of provocativeslogans so as to arouse passions. This plea taken in the protestpetition is of pure conjectures and surmises. In that, the deathshad been caused due to the violent act of group of persons (whowere later identified after investigation and faced trial ending inconviction) for setting the train (Coach S6 of Sabarmati Express)carrying Kar-sevaks on fire. The case concerning Godhra trainepisode was also investigated by the SIT under the supervisionof this Court and that trial ended in conviction of 32 (thirty-two)persons and the confirmation appeals for capital punishment havealso been disposed of by the High Court. In those proceedings,the Courts have considered the issue concerning post-mortemof dead bodies in the open in Railway yard. In other words, theissue under consideration raised by the appellant has alreadypassed the muster of judicial scrutiny before the trial Court andthe High Court. Accepting the argument of the appellant on thisscore would need reinvestigation of the concluded case whichmust be eschewed and cannot be countenanced. [Para 56][174-F-H; 175-A-B]

9.2. The allegation regarding parading of dead bodies, hasbeen dealt with by the SIT. The thrust of the opinion formed bythe SIT upon analyzing the relevant materials in connection withthis allegation is that the decision to carry the dead bodies fromGodhra to Ahmedabad for being handed over to their relatives,was unanimous decision taken at the Godhra Collectorate. Thisdecision was taken as most of the passengers were to travel toAhmedabad and their relatives had not reached or were unableto reach Godhra to collect their bodies. It was also decided thatbodies will be carried to Sola Civil Hospital located on theoutskirts of Ahmedabad City and thus away from the crowdedarea for security reasons. Most of the dead bodies (54 unclaimedat Godhra) were of persons who were ordinarily residing in andaround Ahmedabad. Thus, the entire exercise was within the

CDE

Acontrol and supervision of the administration and there was noparading of dead bodies, as alleged. There was no undue haste incarrying the bodies including cremation thereof. The essentialprotocol was substantially followed in that respect. This opinionrecorded by the SIT in its final report is consistent with thecircumstances and materials gathered during the investigation.BThe allegation under consideration is unfounded and has beenrightly discarded by the SIT. [Para 57][182-F-H; 183-A-C]

10. The appellant had also placed emphasis on theallegations in the complaint about the Cabinet Ministerspositioning themselves in the City Police Control Room andCissuing instructions, to buttress their argument about Statesponsored violence, as stated in the affidavit filed by Mr. R.B.Sreekumar. This allegation has been thoroughly enquired intoby the SIT. The analysis done by the SIT after further investigationin respect of allegation under consideration commended to theDMagistrate, as well as, the High Court. There is no reason todeviate from the said opinion or the view taken in that regard.[Paras 58, 59][183-C-D; 197-A-B]

11.1. There is no merit in the argument of the appellantthat the SIT had failed to collect the call records of the accusedEpersons, not analyzed the available call records from CD suppliedby Mr. Rahul Sharma and failed to seize the phones of personsinvolved. In that, the events had unfolded in the year 2002 andthe SIT was constituted only in the year 2008 by this Court tolook into and enquire into the complaint of appellant, dated8.6.2006. During the contemporary period (year 2002), two mobileFoperators were providing services in the Gujarat State, namely,M/s. AT&T and M/s. Cellforce, who had the protocol ofmaintaining the electronic call records for one year only.Resultantly, it was not possible for the SIT to retrieve the callrecords from these service providers after its appointment inGthe year 2008. It is, therefore, not case of failure of the SIT tocollect the call detail records of various persons referred to inthe details discernible from the record submitted by Mr. RahulSharma. [Para 61][203-B-E]

12. The appellant had also alleged about police inactionwhich facilitated riots as part of conspiracy giving specificinstances in that regard. The SIT has considered this allegation,and upon analyzing the materials gathered during theinvestigation, opined that the circumstances highlighted by theappellant were not sufficient link to infer that the named personshad hatched larger conspiracy to cause mass violence across theState targeting the minority community. On closer scrutiny of theanalysis in this regard, the opinion of the SIT is plausible opinion.For, the instances adverted to are essentially matters concerningthe acts of commission and omission at the ground level and notindicative of any link to sustain the allegations of larger criminalconspiracy. Also, the erring officials identified for their acts ofcommission and omission at the ground/local level have beenproceeded with departmentally. Every act of commission andomission would not result in hatching criminal conspiracy unlessthe acts have been done deliberately and there is meeting ofminds of all concerned. [Para 64][204-H; 205-A-C]

13. Absent clear and direct material indicative ofinvolvement of named person(s) in hatching criminal conspiracyto cause mass violence across the State targeting minoritycommunity during the relevant period, the attempt of theappellant, if we may say so, is bordering on sewing of insignificantunconnected circumstances and events regarding the failures andin some cases, laxity in administration, which is being projectedas an act of concerted effort of all the State officials upto thehighest level without there being any tittle of material to showthat there was meeting of minds of all these persons at somelevel. [Para 68][206-D-E]14. Concededly, the act of transfer/posting of officials hasbeen after the unfolding of mass violence across the State. It wasobviously an administrative matter to address the expedienciesof that situation. One fails to understand as to how thiscircumstance can be reckoned as hatching of criminal conspiracyresulting into mass scale violence across the State aftermathGodhra incident. Such conspiracy ought to have preceded thetriggering of mass violence. [Para 70][211-H; 212-A-B]

A15. Another allegation was, namely, senior officers wereawarded with undue benefits for collaborating with the illegal plansof CM/BJP during 2002 riots and afterwards. This has been foundto be far-fetched and unfounded allegation by the SIT, afteranalyzing the relevant materials on record including thestatements of the concerned officials, dealing with the case ofBeach officer as named in the complaint. Even this opinion of theSIT needs no second look also for the reason that such an actwould not be link to connect the act of hatching of criminalconspiracy resulting in mass violence across the State. [Para72][215-C-D]

16. Argument was also advanced in reference to allegationthat pro-VHP Advocates were appointed as public prosecutorsin riots cases. This has been thoroughly examined by the SIT.One fails to understand as to how this act can be linked with theallegation of hatching of criminal conspiracy for causing orDprecipitating mass violence across the State. The appellant havingfailed to provide sufficient material to raise serious suspicion inrespect of allegation of hatching of criminal conspiracy for theintended mass violence, cannot be heard to make that deficiencyby raising allegation of the kind of appointments of publicEprosecutors during the trial of the concerned cases. Be that as itmay, the allegation clearly overlooks the procedure regardingappointment of public prosecutor. [Para 73][215-D-E; 221-B-

17. The appellant had urged that the SIT had notFinvestigated the willful failure of the fire brigade in Ahmedabadto respond to the calls made by the minority community beingpart of the criminal conspiracy. This argument is unfounded andtenuous. The fire services in Ahmedabad City come within thejurisdiction of Ahmedabad Municipal Corporation and not theState police or the State civil administration. The CommissionerGof Police of Ahmedabad City, who has been blamed by theappellant, had nothing to do with the functioning of the fire brigade.No tangible material is forthcoming to indicate that theCommissioner of Police of Ahmedabad City had issuedinstructions to the officials of fire services in Ahmedabad City

under the control of the Ahmedabad Municipal Corporation.Whereas, the materials collected by the SIT would reveal that inthe entire city of Ahmedabad, blockades were created at variouslocations due to mass violence, making it difficult, if notimpossible, for movement of the vehicles such as fire brigade. Inany case, this argument is one of inaction or failure of fire servicesin the Ahmedabad City. That cannot be the basis to infer criminalconspiracy, much less hatched at the highest level to cause massviolence across the State. [Para 78][222-G; 223-A-C]

18. The respondents had justly contended that the attemptof the appellant was to keep in improvising their grievances andmake new allegations including to involve new offenders as beingparty to the larger criminal conspiracy hatched at the highestlevel. In the name of protest petition (running into 514 pages),appellant was also indirectly questioning the decisions renderedby the Courts in other cases including sub judice matters, forreasons best known to her. She was obviously doing so underdictation of someone. In fact, the sizeable contents of the protestpetition are founded on the affidavits filed by those persons, whoseversion have been found to be replete with falsehood. [Para79][223-D-F]19.1. Be that as it may, after going through the analysisdone by the SIT of the concerned allegations, this Court has nohesitation in accepting such opinion that no case had been madeout against the named 299 offenders, much less to indicate beingparty to the hatching of larger criminal conspiracy to cause orprecipitate mass violence across the State against the minoritycommunity during the relevant period. [Para 80][223-F-G]

19.2. It is, therefore, not open to hold that the investigationby the SIT in the present case has been deficient or infirm. Everyallegation found in the complaint (running into 67 pages) had beenculled out by the SIT and articulated in the form of thirty-two (32)broad allegations. The same had been duly investigated from allangles before submitting the report to this Court. The analysisand opinion of the SIT of the materials collected duringinvestigation allegation-wise, witness-wise as well as, offender-wise are broadly agreed upon even by the learned Amicus Curiae

A- except the observations made regarding some matters, whichobservations have also been thoroughly enquired into by the SITby way of further investigation and duly analyzed for recording itsopinion, in the final report presented to the concerned Court.The Magistrate, as well as, the High Court have accepted thefinal report presented by the SIT. For, there is no material worthBthe name to even create suspicion (leave alone strong suspicionand ground for presuming that the named offenders hadcommitted an offence of larger conspiracy), indicative of themeeting of the minds of all concerned at some level; and inparticular, the bureaucrats, politicians, public prosecutors, VHP,CRSS, Bajrang Dal or the members of the State politicalestablishment - for hatching larger criminal conspiracy at thehighest level to cause and precipitate mass violence against theminority community across the State during the relevant period.Such conclusion reached by the Magistrate and the High Courtis unexceptionable. [Para 81][223-G-H; 224-A-D]D

19.3. The SIT came to be constituted by this Court ofexperienced senior officials with proven ability of investigatingcomplex offences. Therefore, the assail of the appellant was notonly far-fetched and an attempt to undo and undermine the industryof the SIT in having thoroughly investigated all the nine (9) setsEof cases assigned to it by this Court, but also in the nature ofquestioning the wisdom of this Court, and, hence is rejected.[Para 85][226-B-C]

19.4. Indefatigable work was done by the team of SITofficials in the challenging circumstances they had to face andFyet, they have come out with flying colours unscathed. At the endof the day, it appears that coalesced effort of the disgruntledofficials of the State of Gujarat alongwith others was to createsensation by making revelations which were false to their ownknowledge. The falsity of their claims had been fully exposed byGthe SIT after thorough investigation. Intriguingly, the presentproceedings have been pursued for last 16 years (from submissionof complaint dated 8.6.2006 running into 67 pages and then byfiling protest petition dated 15.4.2013 running into 514 pages)including with the audacity to question the integrity of everyfunctionary involved in the process of exposing the deviousH

stratagem adopted (to borrow the submission of counsel for theSIT), to keep the pot boiling, obviously, for ulterior design. As amatter of fact, all those involved in such abuse of process, needto be in the dock and proceeded with in accordance with law.[Para 88][226-E-G]

20.1. To sum up, no fault can be found with the approach ofthe SIT in submitting final report dated 8.2.2012, which is backedby firm logic, expositing analytical mind and dealing with allaspects objectively for discarding the allegations regarding largercriminal conspiracy (at the highest level) for causing andprecipitating mass violence across the State against the minoritycommunity during the relevant period. The SIT has gone by thelogic of falsity of the information or material and including thesame remaining uncorroborated. In that, the materials collectedduring the investigation do not give rise to strong or gravesuspicion regarding hatching of larger criminal conspiracy at thehighest level for causing mass violence across the State againstthe minority community and more so, indicating involvement ofthe named offenders and their meeting of minds at some level inthat regard. The SIT had formed its opinion after considering allthe materials collated during the investigation. The question offurther investigation would have arisen only on the availability ofnew material/information in connection with the allegation of largerconspiracy at the highest level, which is not forthcoming in thiscase. Hence, the final report, as submitted by the SIT, ought tobe accepted as it is, without doing anything more. [Para 89][226-H; 227-A-D]

20.2. The Magistrate, upon presentation of final reportcould have exercised different options. However, the Magistratein the present case, after applying his mind independently to thefinal report dated 8.2.2012 and the materials appended thereto,chose to accept the same as it is, without issuing any otherdirection to the SIT. [Para 90][227-E]

20.3. The decision of the Magistrate in accepting the statedfinal report dated 8.2.2012 submitted by the SIT, is upheld as itis and the protest petition filed by the appellant is rejected. Thesubmission of the appellant regarding infraction of rule of law in

Athe matter of investigation and the approach of the Magistrateand the High Court in dealing with the final report, cannot becountenanced. [Para 91][227-F]

Jakia Naseem Ahesan & Anr. v. State of Gujarat & Ors.(2009) SCC Online SC 6; National Human RightsCommission v. State of Gujarat & Ors. (2009) 6 SCC342; Bhagwant Singh v. Commissioner of Police & Anr.,(1985) 2 SCC 537 : [1985] 3 SCR 942; Vineet Narain& Ors. v. Union of India & Anr. (1996) 2 SCC 199 :[1996] 1 SCR 1053; Union of India & Ors. v. SushilKumar Modi & Ors. (1998) 8 SCC 661; M.C. Mehta(Taj Corridor Scam) v. Union of India & Ors. 24 (2007)1 SCC 110 : [2006] 9 Suppl. SCR 683; Narmada Baiv. State of Gujarat & Ors. (2011) 5 SCC 79 : [2011]5 SCR 729; Vishnu Kumar Tiwari v. State of UttarPradesh & Anr. (2019) 8 SCC 27 : [2019] 8 SCR 1114;Abhinandan Jha & Ors. v. Dinesh Mishra AIR 1968SC 117 : [1967] 3 SCR 668; Popular Muthiah v. Staterepresented by Inspector of Police (2006) 7 SCC 296 :[2006] 3 Suppl. SCR 100; Jakia Naseem Ahesan & Anr.v. State of Gujarat & Ors. (2011) 12 SCC 302 : [2011]11 SCR 365; Firozuddin Basheeruddin & Ors. v. Stateof Kerala (2001) 7 SCC 596; Nirmal Singh Kahlon v.State of Punjab & Ors. (2009) 1 SCC 441 : [2008]14 SCR 1049; R. Venkatkrishnan v. Central Bureau ofInvestigation (2009) 11 SCC 737 : [2009] 12 SCR 762;State (NCT Delhi) v. Shiv Charan Bansal & Ors. (2020)2 SCC 290 : [ 2019] 17 SCR 1155; State of Karnataka& Anr. v. Dr. Praveen Bhai Thogadia (2004) 4 SCC684 : [2004] 3 SCR 652; Amish Devgan v. Union ofIndia & Ors. (2021) 1 SCC 1; R.K. Anand v. Registrar,Delhi High Court, (2009) 8 SCC 106 : [2009]11 SCR 1026; Rajat Prasad v. Central Bureau ofInvestigation, (2014) 6 SCC 495 : [2014] 8 SCR 636;Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar& Ors. [1959] SCR 279; Kehar Singh & Ors. v. State(Delhi Administration) (1988) 3 SCC 609 : [1988] 2 Suppl. SCR 24; Abdul Sathar v. The Principal

Secretary to Government W.P. No. 41791/2006 (withconnected cases) decided on 5.2.2021; ZahiraHabibulla H. Sheikh & Anr. v. State of Gujarat & Ors.(2004) 4 SCC 158 : [2004] 3 SCR 1050; ZahiraHabibulla Sheikh (5) & Anr. v. State of Gujarat & Ors.(2006) 3 SCC 374 : [2006] 2 SCR 1081; Dayal Singh& Ors. v. State of Uttaranchal (2012) 8 SCC 263 :[2012] 10 SCR 157; Nazir Khan & Ors. v. State of Delhi(2003) 8 SCC 461 : [2003] Suppl. SCR 884; S. NambiNarayanan v. Siby Mathews & Ors. (2018) 10 SCC804 : [2018] 12 SCR 51; Hanumant, son of GovindNargundkar v. State of Madhya Pradesh [1952] SCR1091; State of Gujarat v. Afroz Mohammed Hasanfatta(2019) 20 SCC 539 : [2019] 1 SCR 1104; H.N.Rishbund & Anr. v. State of Delhi AIR 1955 SC 196[1955] 1 SCR 1150; Gura Singh v. State of Rajasthan(2001) 2 SCC 205 : [2000] 5 Suppl. SCR 408; S.K.Sinha, Chief Enforcement Officer v. VideoconInternational Ltd. & Ors. (2008) 2 SCC 492 : [2008] 2 SCR 36; Piara Singh & Ors. v. State of Punjab (1977)4 SCC 452 : [1978] 1 SCR 597; State of Bihar v. RameshSingh (1977) 4 SCC 39 : [1978] 1 SCR 257; State(Delhi Admn.) v. I.K. Nangia & Anr. 2 (1980) 1 SCC258 : [1980] 1 SCR 1016; R.K. Anand v. Registrar, DelhiHigh Court (2009) 8 SCC 106 : [2009] 11 SCR 1026;Rajat Prasad v. Central Bureau of Investigation (2014)6 SCC 495 : [2014] 8 SCR 636; Testa Setalvad & Anr.v. State of Gujarat & Ors. (2004) 10 SCC 88 : [2004]3 SCR 1042; Sanjiv Rajendra Bhatt v. Union of India& Ors. 899 (2016) 1 SCC 1 : [2015] 12 SCR 498;Central Bureau of Investigation v. V.C. Shukla & Ors.(1998) 3 SCC 410 : [1998] 1 SCR 1153; State of Bihar& Anr. v. JAC Saldanha & Ors. (1980) 1 SCC 554 :[1980] 2 SCR 16; M. C. Abraham & Anr. v. State ofMaharashtra & Ors. (2003) 2 SCC 649 : [2002] 5 Suppl. SCR 677 and Shariff Ahmed & Ors. v. State(NCT of Delhi) (2009) 14 SCC 184 : [2009] 8 SCR 75– referred to.Reg v. Hodge (1838) 2 Lew 227 – referred to.

20SUPREME COURT REPORTS

ACase Law Reference

H[2000] 5 Suppl. SCR 408

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.912 of 2022.

From the Judgment and Order dated 05.10.2017 of the High Courtof Gujarat at Ahmedabad in Criminal Revision Application No. 205 of2014.

Kapil Sibal, Mihir Desai, Sr. Advs., Ms. Aparna Bhat,Ms. Karishma Maria, Nizam Pasha, Adit Pujari, Raghav Tankha,Ms. Aprajita Jamwal, Mihir Joshi, Advs. for the Appellant.

Tushar Mehta, SG, Mukul Rohatgi, Sr. Adv., Maninder Singh,Ms. Kanu Agrawal, Ms. Devanshi Singh, Shantnu Sharma, MadhavSinhal, Ms. Deepanwita Priyanka, Aldanish Rein, Advs. for theRespondents.

The following Judgment of the Court was delivered:

JUDGMENT

1. There is delay of 216 days in filing of this special leave petitionagainst the judgment and order dated 5.10.2017 passed by the HighCourt of Gujarat at Ahmedabad[1] in Criminal Revision Application No.205/2014. Even though the explanation offered in the application for

1 for short, “the High Court”

Acondonation of delay is blissfully vague and bereft of any material factsand particulars, keeping in mind the subject matter involved, we deemedit appropriate to ignore/condone the delay and proceeded to hear thematter on merits.

2. We must note that the respondents had faintly objected to theBhearing of this matter on merits owing to unexplained delay in filing ofthe petition. However, they have serious objection to the joining of Ms.Teesta Setalvad (as petitioner No. 2). Firstly, because, the protest petitionon which impugned order had been passed and assailed in this appeal,was filed only by the appellant[2] – Zakia Ahsan Jafri, wife of deceased –Mr. Ehsan Jafri and on the earlier occasion (proceedings before theCHigh Court), it has been ruled that she had no locus standi to join thecause of appellant, which opinion has become final as it has not beenreversed by this Court in SLP(Crl.) No. 1088/2008. Secondly, theantecedents of Ms. Teesta Setalvad need to be reckoned and also becauseshe has been vindictively persecuting this lis for her ulterior design byDexploiting the emotions and sentiments of appellant – Zakia Ahsan Jafri,the real victim of the circumstances. On the other hand, according toMs. Teesta Setalvad, she is bonafide crusader of human rights issuesand has been following this case closely being fully convinced about thecause in quest of justice. However, as aforementioned, we have leanedin favour of examining the merits of the challenge to the impugnedEorder(s) at the instance of appellant - Zakia Ahsan Jafri. For, because ofthe subject matter, this Court in the past had to invoke its role of parenspatriae in issuing sui generis directions including in constituting SpecialInvestigation Team[3] to investigate into the matter and to presentappropriate report before the Metropolitan Magistrate taking cognizanceFof Crime Report (CR) No. 67/2002 dealing with the Gulberg Society,Meghaninagar case. Thus, we do not wish to dilate on the issue of locusof Ms. Teesta Setalvad and keep that preliminary objection open to bedecided in an appropriate case.

3. In that light, we have granted leave to appeal and decided toGexamine the matter on merits at the instance of the appellant – ZakiaAhsan Jafri.

2 hereinafter, “appellant” means Zakia Ahsan Jafri only

3 for short, “SIT”

PREFACE

4. Shorn of unnecessary factual matrix, this matter essentiallyemanates from the sui generis directions given by this Court on27.4.2009[4] in SLP(Crl.) No. 1088/2008, whilst considering challenge tothe decision of the High Court dated 2.11.2007, rejecting the prayer ofthe appellant – Zakia Ahsan Jafri for issuing direction to the concernedauthority to register an FIR on the basis of complaint presented by heron 8.6.2006 to the Director General of Police, Gujarat. However, thisCourt vide stated order (dated 27.4.2009[5]), directed the SIT appointedby it in terms of the order dated 26.3.2008[6], to “look into” the complaintdated 8.6.2006 and take steps as required by law and to give its report tothis Court within three months. Consequent to such direction, the SITsubmitted its successive reports on the basis of investigation done by itincluding by taking into account the observations of the Amicus Curiaeappointed by this Court. Treating the further report submitted by the SITas analogous to report under Section 173(8) of the Code of CriminalProcedure[7], this Court permitted the SIT to place it before the Magistratetaking cognizance of CR No. 67/2002 concerning trial in Gulberg Societycase with further direction to the Magistrate to then proceed inaccordance with law, including to give opportunity to the appellant in theevent of final report submitted by the SIT was to recommend closure ofher complaint. Appellant – Zakia Ahsan Jafri, after being served withthe final report dated 8.2.2012 alongwith relevant materials adverted totherein, then filed protest petition on 15.4.2013. This protest petition cameto be rejected by the Metropolitan Magistrate vide order dated 26.12.2013and instead, the final report of the SIT came to be accepted. This decisionwas carried before the High Court by way of Criminal RevisionApplication No. 205/2014. The revision application came to be disposedof on 5.10.2017, against which the present appeal arises for ourconsideration.

FACTS

5. (a) Briefly stated, the abhorrent Godhra incident occurred inthe morning of 27.2.2002, wherein Kar-sevaks travelling in SabarmatiExpress train, returning from Ayodhya, were allegedly attacked and

4 2009 SCC Online SC 6 - Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors.

5 supra at footnote No. 4

6 (2009) 6 SCC 342 – National Human Rights Commission vs. State of Gujarat & Ors.

7 for short, “the Code”

Acoaches of the train were set on fire at Godhra Railway Station at around7.45 a.m., as result of which, 58 persons were charred to death and59[th] victim succumbed to the burn injuries on 3.4.2002. As aftermath ofthat incident, there was unrest and violence all across the State of Gujarat.In that process – violent mob attacked the inhabitants of GulbergSociety, Meghaninagar, killing 69 persons at the stated location includingBthe husband of appellant – Zakia Ahsan Jafri, who had unsuccessfullyattempted to dissuade the mob. In connection with this incident, crimewas registered at “Meghaninagar Police Station” being CR No. 67/2002.Multiple chargesheets were filed against the concerned accused andthe case was committed to Sessions.

(b) Since there was widespread violence bordering on failure ofthe State machinery to prevent and control the same including to arrestall the perpetrators of the crime and undertake fair investigation, theNational Human Rights Commission[8] filed writ petition before thisCourt being W.P.(Crl.) No. 109/2003. In that writ petition, the CourtDappointed Mr. Harish Salve, learned senior counsel as Amicus Curiaevide order dated 9.10.2003[9]

8 for short, “the NHRC”

“ORDER

W.P.(Crl.) No. 109/2003

An affidavit has been filed by the Chief Secretary to the Government of Gujaraton 7[th] October, 2003. The said affidavit discloses that the State has moved tothe High Court for amending the criminal appeal filed against the judgmentpassed by the Sessions Court acquitting the accused and the Court has permittedthe appeal to be amended. In the aforesaid view of the matter, we feel that inthis case an Amicus Curiae is required to be appointed. We request Shri HarishFN. Salve, Sr. Advocate to appear in this case as Amicus Curiae which he hasaccepted. Mr. Bhargava V. Desai, Advocate-on-Record is also appointed asAmicus Curiae to assist Mr. Harish N. Salve, Sr. Adv.

List this matter as also TP(Crl.) Nos. 194-202/2003, WP(Crl.) No. D17953/2003, SLP(Crl.) No. 3770/2003, SLP(C) No. 7951/2002 and WP (Crl.) Nos.11-15/2003 on 17[th] October, 2003. Counter affidavit filed today in Court onGbehalf of Respondents Nos. 2 to 22 in SLP(C) No. 3770/2003 be taken onrecord.

Let complete set of paperbooks be given to the learned Amicus Curiae within48 hours by the State of Gujarat.

(c) This Court vide order dated 21.11.2003[10], stayed the trial of 9(nine) major criminal cases mentioned in the order, including the onearising from CR No. 67/2002 concerning the Gulberg Society.

“ORDER

TP(Crl) 194-202/203.

Issue notice.

Notice has been accepted by Ms.H.Wahi, learned counsel appearing forrespondent no.1 State of Gujarat. She prays for and is allowed two weeks’ timeto file counter affidavit. Notice to the remaining respondents shall be servedthrough the State of Gujarat within period of two weeks.

Until further orders, the trial in the following cases shall remain stayed: -

1.ARISING OUT OF FIR NO.09/2002 DATED 27.2.2002 OF POLICESTATION GODHRA:

(i) Criminal Case Nos.1-6/2003 titled State v. Mohmad Rafudan Ansari &Ors. pending in the Court of Special Judge, POTA, Ahmedabad;

(ii)Crime No.09/2002 titled State v. Junia Farooq Hassan & Ors. pending inthe Juvenile Court, Godhra;

2. Criminal Case No.275/2002 arising out of FIR No.46/2002 dated 28.2.2002of Police Station Bijaypur, titled State v. Patel Rameshbhai Kanjibhai & Ors.pending in the Court of Sessions Judge, Mehsana, Gujarat;

3. ARISING OUT OF FIR NO.67/2002 DATED 28.2.2002 OF POLICESTATION MEGHANINAGAR:

(i)Sessions Case No.152/2002 titled State v. Kailash Lalchand BhaiDhobi & Ors. pending in the Court of Sessions Judge, Bhadra,Ahmedabad;

(ii)Criminal Case No.1720/2002 titled State v. Shankarji Hakaji Mali& Ors. pending in the Metropolitan Magistrate Court No.XI,Ahmedabad;

(iii)Criminal Case No.296/2003 titled State v. Sandeep alia SonuGhunghru Val Valo & Ors. pending in the Metropolitan MagistrateCourt No.XI, Ahmedabad;

(iv) Criminal Case No.524/2002 titled State v. Vishal Badrilal Nayee& Ors. pending in the Juvenile Court No.IV, Ahmedabad;

(d) In the subsequent order passed in the group of petitions on17.8.2004, this Court directed that in cases where ‘A’ Summary Report(s)had been filed (around 2000 cases) should be further investigated by theconcerned Range Inspector Generals of Police in the State of Gujarat,who should ascertain the correctness or otherwise of such reports. Inthis appeal, we are not concerned with those cases.

(e) As noted earlier, this matter emanates from the complaintfiled by appellant – Zakia Ahsan Jafri on 8.6.2006 addressed to theDirector General of Police, Gujarat and other high officials includingMr. D.A. Vaghela, P.I., Sector 21 Police Station, opposite Old Sachivalaya,Gandhinagar, the Chief Secretary, State of Gujarat, Sachivalaya,CGandhinagar and the Home Secretary, State of Gujarat, Sachivalaya,Gandhinagar. We shall advert to the contents of this complaint in detail alittle later.

(f) Broadly stated, in this complaint, appellant – Zakia Ahsan Jafrimentioned names of 63 persons, who according to her, were also involved

4. ARISING OUT OF FIR NO.100/2002 DATED 28.2.2002 OF POLICE STATION NARODA, AHMEDABAD:

(i) Criminal Case No.982/2002 titled State v. Naresh Amarsingh Chhara& Ors. pending in the Metropolitan Magistrate Court No.XI,Ahmedabad, and

(ii) Criminal Case No.1662/2002 titled State v. Padmendra Singh & Ors.pending in the Metropolitan Magistrate Court No.XI, Ahmedabad.

Learned counsel for the petitioner in TP(Crl) Nos.194-202/2003 prays for andis permitted to amend the petitions for including the Sessions trial arising out ofFCR No.23/2002 and CR No.27/ 2002 (ODE Massacre). However, further trialin those cases shall remain stayed. List on 19th December, 2003.

SLP(Cr) 4409/2003.

Issue notice.

Ms.H. Wahi, learned counsel accepts notice. She prays for and is allowed twoweeks’ time to file reply.

In the meantime, further trial in Sessions Case No.180/2002 shall remain stayed.List along with WP(Crl) No.109/2003 etc.

(emphasis supplied)

in larger conspiracy and abetment of the crime resulting in carnagebetween February, 2002 and May, 2002, that shook the State of Gujarat.This allegation was against the then Chief Minister and Ministers of theState, as well as high police officials and bureaucrats and others forhaving committed offence under Section 302 read with Section 120B,Section 193 read with Section 114 and Sections 185, 153A, 186 and 187of the Indian Penal Code[11] and Section 6 of the Commission of InquiryAct, 1952[12] and also under various provisions of the Gujarat Police Act,1951[13] and the Human Rights Act, 1991[14].

(g) Appellant – Zakia Ahsan Jafri alongwith Ms. Teesta Setalvadbeing the Secretary of Citizens for Justice and Peace forum, then filedan application before the High Court on 1.3.2007 bearing Special CriminalApplication No. 421/2007 under Articles 226 and 227 of the Constitutionof India read with Section 482 of the Code. During the pendency of thesaid petition before the High Court, the Tehelka Tape surfaced, whichaccording to the appellant, unravelled the role of the concerned personsbeing involved in the build-up to the commission of crime includingconspiring and abetting the State-wide violence. Be that as it may, thestated writ petition filed before the High Court was finally dismissed on2.11.2007, in which the Court passed the following order: -

“43. For the reasons stated above, present petition is dismissed.As the petitioners had not adopted the procedure of to file thecomplaint under section 190 r.w. section 200 of the CriminalProcedure Code, the petitioner No.1 is relegated to fileappropriate private complaint to invoke the provisions ofsection 190 r.w. section 200 of the Criminal Procedure Codeby filing the private complaint and the same shall beconsidered in accordance with law and on merits afterfollowing due procedure under Criminal Procedure Code.It is, however, made clear that this Court has not expressed anyopinion on the merits of the case in favour of either parties. Ruledischarged.”

(emphasis supplied)

11 for short, “IPC”

12 for short, “the 1952 Act”

13 for short, “the 1951 Act”

14 for short, “the 1991 Act”

ANotably, the High Court did not issue any direction for registrationof FIR in respect of the complaint presented by appellant – Zakia AhsanJafri, dated 8.6.2006.

(h) Being aggrieved by this decision, the appellant alongwith Ms.Teesta Setalvad filed SLP(Crl.) No. 1088/2008, hearing whereof wasBtagged alongwith writ petition filed by the NHRC being W.P.(Crl.) No.109/2003. Vide order dated 3.3.2008[15], Mr. Prashant Bhushan, learnedcounsel was appointed as Amicus Curiae in SLP(Crl.) No. 1088/2008to espouse the cause of the appellant herein.

(i) When both these matters were listed on 26.3.2008[16], this CourtCpassed the following order: -

“Order

After having heard learned counsel for the parties, we feelthat considering the sensitive nature of the cases involved,appointment of Special Investigation Team (in short ‘SIT’) isDwarranted. Communal harmony is the hallmark of democracy.No religion teaches hatred. If in the name of religion, people arekilled, that is essentially slur and blot on the society governed byrule of law. The Constitution of India, in its preamble refers tosecularism. Religious fanatics really do not belong to any religion.EThey are no better than terrorists who kill innocent people for norhyme or reason in society which as noted above is governed byrule of law.

These are cases where there is an element of communaldisharmony, which is not to be countenanced. The State of Gujarat

“ORDER

The High Court’s order does not render the petitioners remedyless. But,various important aspects arise for consideration. In given case, personwho has knowledge of the commission of crime may not be examined by thepolice. The question is what is the remedy available to such person? We,therefore, issue notice only to respondent Nos. 1 and 2 and the Union of India.GThough, in the proceedings, the Central Bureau of Investigation is respondentNo. 3, there is presently no need for issuing any notice to the CBI, as we wouldlike to have the views of the Union of India also.

Mr. Prashant Bhushan, learned counsel has agreed to assist the Court as anAmicus-Curiae. We would also request other learned senior members of theBar to assist the Court, as the question is of vital importance in the administrationof criminal justice.”

has stated that it has no objection if further investigation is doneso that peoples’ faith on the transparency of action taken by theState is fortified.

Mr. Mukul Rohtagi, learned senior counsel appearing forthe State stated that the State’s approach is fair and it is notinterested in shielding any culprit or guilty person, but on theother hand, would like all those who are guilty, to be punished.This statement of Mr. Rohtagi is not accepted by some of thelearned counsel appearing for the alleged victims. We need notgo into that aspect, in view of the fact that there is an agreementthat there is need for Special Investigation Team.

We, therefore, direct that an appropriate notificationshall be issued by the State Government regarding thecreation of SIT, the constitution of which shall be as follows.:-

1. Shri R.K. Raghavan, retd. Director of the CBI.

2. Shri C.B. Satpathy, retd. DG, Director, Uttar

Pradesh, Police College, Moradabad

3. Ms. Geeta Johri

4. Shri Shivanand Jha

5. Shri Ashish Bhatia

The notification by the State be issued as early as practicable,preferably within ten days.

Officers at Sl Nos. 3 to 5 are IG rank officers. ShriRaghavan will be the chairman of the committee and Ms. GeetaJohri shall be the convener. The committee shall in its first meetingwork out the modalities to be adopted for the purpose of enquiry/investigation. If any person wants to make statement beforethe SIT for giving his or her version of the alleged incidents,the SIT shall record it. Those who want to give their versionshall in writing intimate the convenor of the committee sothat the SIT can call him or her for the purpose of recordinghis/her statement. It is needless to say that the SIT shallnot confine the investigation by recording statement ofthose who come forward to give his or her version and shallbe free to make such inquiries/investigation as felt

Anecessary by it. The State Government shall provide necessaryinfrastructure and provide resources for effective working of theSIT. The report of the SIT shall be furnished to this Courtin sealed cover after completion of the inquiry/investigation for which three months time is granted. Afterthe report is submitted, the further action required to beBtaken shall be dealt with by this Court. The SIT shall conductinquiries/investigations including further investigation in thefollowing cases:-

I. GODHRA

CFIR NO.09/2002 DATED 27.2.2002:

i) CR NOS.1-6/2002 titled Mohd Rafudan Ansari & Ors.

ii) CR NOS.09/2002 titled State Vs. Junia Farooq Hassaan &Ors. pending in Juvenile court

II. SARDARURA, MEHSANAD

CR Nos. 275/2002 arising out of FIR No.46/2002 dated 28.2.2002of police station Bijapur, Mehsana

III. GULBERG SOCIETY, MEGHANINAGARAHMEDABAD CR Nos. 67/2002 at Meghaninagar PoliceStation

i) Sessions Case No. 152/2002 titled State V/s. KailashLalchand Dhobhi & Ors.

ii) Criminal Case No. 1720/2002 titled State V/s.Shankarji Hakaji Mali pending Metro Magistrate court,FAhmedabad

iii) Criminal Case No. 296/2003 titled State V. Sandeeppending in the Metropolitan Magistrate court,Ahmedabad

Giv) Criminal Case No. 524/2002 titled State V. VishalBadrilal Nayee & Ors. pending in the Junenile court,Ahmedabad

IV. NARODA PATIYA

Arising out of FIR No. 100/2002 dated 28.2.2002 of PS Naroda,HAhmedabad

i) CR No. 982/2002 titled State v. Naresh Chahra pending inMM Court, Ahmedabad

ii) CR No. 1662/2002 titled State V. Padmendra Singh & Ors.

V. ODE ANAND DISTRICT

Cr.Nos. 23/2002 and 27/2002 (Ode Massacre). Leave was grantedto petitioners, CJP, to amend petition to include these Session Trials.Trials were stayed.

VI. NARODA GAON

Inadvertently left out. CJP filed TP(Crl.) No. 233/2004 and trialwas stayed on 23.8.2004.

VII. W.P.No. 284/2003 TP(Crl.) No. 43/2004 Imran Dawood Vs.Union of India.

So far as SLP(Crl.) No. 4409/2003 and Writ Petition(Crl.)216/2003 are concerned, though it is pointed out by learned counselby the State of Gujarat that the trial is at concluding stage, in viewof the orders passed in the other cases, we feel it would beappropriate if the inquiry/investigation including further investigationis done, in this case also. The relevant case No.is FIR 60/02commonly known as ‘Deepda Darwaza’. So far as WritPetition(Crl.)No. 284/03 and T.P.(Crl.) 43/2004 are concerned,the case is commonly known as ‘British Nationals Case’ and relatesto Himmat Nagar, Prantij P.S district Sabarkantta and relates toFIR 1/26/2002.

We make it clear that SIT shall be free to work outthe modalities and the norms required to be followed forthe purpose of inquiry/investigation including furtherinvestigation. Needless to say the sole object of the CriminalJustice System is to ensure that person who is guilty of an offenceis punished.

Mr. K.T.S. Tulsi, learned senior counsel had submitted thatin some cases the alleged victims themselves say that wrongpersons have been included by the police officials as accused andthe real culprits are sheltered. He, therefore, suggested thattrial should go on, notwithstanding the inquiry/investigationincluding further investigation as directed by us. We find

Athat the course would not be appropriate because if thetrial continues and fresh evidence/materials surface, it wouldrequire almost de novo trial which would be not desirable.

These matters shall be listed for further directions in thelast week of August, 2008.

The pleadings in all these matters be completed within aperiod of three months.”

(emphasis supplied)

(j) In furtherance of the above order, the SIT published publicnotice on 28.4.2008 inviting the public wanting to share informationand record their statement(s) before the SIT, as notified. Afterthe publication of notice, the SIT started recording statements ofconcerned persons willing to depose before it including others asdirected by this Court.

(k) In due course, the special leave petition filed by the appellantbeing SLP(Crl.) No. 1088/2008 came up for hearing on27.4.2009[17], when this Court passed the following order: -

“ORDER

Having heard learned counsel for the parties we direct thatcomplaint dated 8/6/2006 which the petitioners herein claim tohave sent to the DGP of Gujarat shall be examined by the SpecialInvestigation Team (in short ‘SIT’) constituted pursuant to theorders of this Court. The SIT shall look into the matter andtake steps as required in law and give its report to thisCourt within three months.

Call this matter after three months.

This case shall be heard along with writ petition (Crl.) No. 109 of2003 and connected cases.”

(emphasis supplied)

Be it noted that when this order was passed, it must be assumed,that this Court was aware of the fact that the FIR had already beenregistered in connection with Gulberg Society case being CR No.67/2002 and the same was committed to sessions for trial of the named

17 supra at footnote No. 4

accused. Further, the special leave petition filed by the appellant tochallenge the order of the High Court refusing to issue direction forregistration of FIR on the basis of complaint of appellant – Zakia AhsanJafri, dated 8.6.2006, was still pending before it.

(l) Nevertheless, vide judgment dated 1.5.2009[18], this Court vacatedthe stay of the trials and directed the prosecution of cases in SpecialCourts; and SIT appointed by it to submit progress report. The relevantextract of the said judgment reads thus: -

“4. Several important aspects need to be noted in these cases.Firstly, due to the efforts of SIT, persons who were notearlier arrayed as accused have now been arrayed asaccused. From the details indicated above it appears thatin most of the cases large number of persons have beenadditionally made accused. Besides this, large number ofwitnesses were also examined in each case. This goes toshow the apparent thoroughness with which SIT hasworked. Therefore, SIT shall continue to function until thecompletion of trial in all the cases and if any further inquiry/investigation is to be done the same can be done as providedin law, more particularly, under Section 173(8) of the Codeof Criminal Procedure, 1973 (in short “the Code”).

xxxxxx

37. Since the protection of witness is of paramount importanceit is imperative that if and when any witness seeks protection sothat he or she can depose freely in court, the same has to beprovided. It is therefore directed that if person who isexamined as witness needs protection to ensure his orher safety to depose freely in court he or she shall makean application to SIT and SIT shall pass necessary ordersin the matter and shall take into account all the relevantaspects and direct such police official/officials as it considersproper to provide the protection to the person concerned.It shall be the duty of the State to abide by the direction ofSIT in this regard. It is essential that in riot cases and casesinvolving communal factors the trials should be held expeditiously.

18 (2009) 6 SCC 767 - National Human Rights Commission vs. State of Gujarat & Ors.(paras 4, 37 to 40)

Therefore, we request the Hon’ble Chief Justice of Gujarat HighCourt to designate court(s) in each district where the trial of thecases concerned are to be held. The Designated Courts shall takeup the cases in question.

38. Taking into account the number of witnesses and the accusedpersons and the volumes of evidence, it is open to the High Courtto designate more than one court in particular district. Needlessto say that these cases shall be taken up by the Designated Courton day-to-day basis and efforts shall be made to complete thetrial with utmost expedition. SIT shall furnish periodic reportsif there is any further inquiry/investigation. The State ofGujarat shall also file status report regarding the constitution ofthe courts in terms of the directions to be given by the Hon’bleChief Justice of the High Court within three months. The mattershall be listed further as and when directed by this Court.

39. ….. The matter was then heard from time to time and anorder was then made on 26-3-2008 directing the establishment ofSIT, and for further investigation into these matters. The mattersunder investigation were those arising out of

(a) Crime No. 9 of 2002

(b) Crime No. 100 of 2002

(c) Crime No. 23 of 2002(d) Crime No. 98 of 2002

(e) Crime No. 46 of 2002

(f) Crime No. 67 of 2002(g) Crime No. 60 of 2002

(h) Crime No. 26 of 2002

(i) Crime No. 27 of 2002

The reports of SIT, in respect of each of these caseshave now been received.

40. We have considered the submissions made by Mr Harish N.Salve, learned amicus curiae, Mr Mukul Rohatgi, learned counselfor the State, Ms Indira Jaising and other learned counsel. Thefollowing directions are given presently:

(i) Supplementary charge-sheets shall be filed in each ofthese cases as SIT has found further material and/or hasidentified other accused against whom charges are now tobe brought.

(ii) The conduct of the trials has to be resumed on day-to-daybasis keeping in view the fact that the incidents are of January2002 and the trials already stand delayed by seven years. Theneed for early completion of sensitive cases more particularly incases involving communal disturbances cannot be overstated.

(iii) SIT has suggested that the six “Fast Track Courts” bedesignated by the High Court to conduct trial, on day-to-daybasis, in the five districts as follows:

(i) Ahmedabad (Naroda Patia, Naroda Gam)

(ii) Ahmedabad (Gulbarg)

(iii) Mehsana (for two cases)

(iv) Saabarkantha opened (British Nationale case)

(v) Anand

(vi) Godhra train case (at Sabarmati Jail, Ahmedabad)

(iv) It is imperative, considering the nature and sensitivity of thesenominated cases, and the history of the entire litigation, that seniorjudicial officers be appointed so that these trials can be concludedas soon as possible and in the most satisfactory manner. In orderto ensure that all concerned have the highest degree ofconfidence in the system being put in place, it would beadvisable if the Chief Justice of the High Court of Gujaratselects the judicial officers to be so nominated. The State ofGujarat has, in its suggestions, stated that it has no objection toconstitution of such “Fast Track Courts”, and has also suggestedthat this may be left to Hon’ble the Chief Justice of the HighCourt.

(v) Experienced lawyers familiar with the conduct of criminal trialsare to be appointed as Public Prosecutors. In the facts andcircumstances of the present case, such Public Prosecutorsshall be appointed in consultation with the Chairman of SIT.The suggestions of the State Government indicate acceptance of

this proposal. It shall be open to the Chairman of SIT to seekchange of any Public Prosecutor so appointed if anydeficiency in performance is noticed. If it appears that atrial is not proceeding as it should, and the Chairman ofSIT is satisfied that the situation calls for change of thePublic Prosecutor or the appointment of an Additional PublicProsecutor, to either assist or lead the existing PublicProsecutor, he may make request to this effect to theAdvocate General of the State, who shall take appropriateaction in light of the recommendation by SIT.

(vi) If necessary and so considered appropriate SIT maynominate officers of SIT to assist the Public Prosecutor inthe course of the trial. Such officer shall act as thecommunication link between SIT and the Public Prosecutor, toensure that all the help and necessary assistance is made availableto such Public Prosecutor.

(vii) The Chairman of SIT shall keep track of the progressof the trials in order to ensure that they are proceedingsmoothly and shall submit quarterly reports to this Courtin regard to the smooth and satisfactory progress of thetrials.

(viii) The stay on the conduct of the trials are vacated inorder to enable the trials to continue. In number of casesbail had been granted by the High Court/Sessions Court principallyon the ground that the trials had been stayed. Whereverconsidered necessary, SIT can request the PublicProsecutor to seek cancellation of the bails already granted.

(ix-i) For ensuring of sense of confidence in the mind of thevictims and their relatives, and to ensure that witnesses deposefreely and fearlessly before the court, in case of witnessesfollowing steps shall be taken:

(a) Ensuring safe passage for the witnesses to and from thecourt precincts.

(b) Providing security to the witnesses in their place ofresidence wherever considered necessary, and

(c) Relocation of witnesses to another State wherever such astep is necessary.

(ix-ii) As far as the first and the second is concerned, SIT shallbe the nodal agency to decide as to which witnesses requireprotection and the kind of witness protection that is to bemade available to such witness.

(ix-iii) In the case of the first and the second kind of witnessprotection, the Chairman, SIT could, in appropriate cases,decide which witnesses require security of the paramilitaryforces and upon his request same shall be made available byproviding necessary security facilities.

(ix-iv) In the third kind of situation, where the Chairman, SITis satisfied that the witness requires to be relocated outsidethe State of Gujarat, it would be for the Union of India tomake appropriate arrangements for the relocation of suchwitness. The Chairman, SIT shall send an appropriate requestfor this purpose to the Home Secretary, Union of India, who wouldtake such steps as are necessary to relocate the witnesses.

(ix-v) All the aforesaid directions are to be considered by SIT bylooking into the threat perception, if any.

(x) SIT would continue to function and carry out anyinvestigations that are yet to be completed, or any furtherinvestigation that may arise in the course of the trials. SITwould also discharge such functions as have been cast uponthem by the present order.

(xi) If there are any matters on which directions are considerednecessary (including by way of change of Public Prosecutors orwitness protection), the Chairman of SIT may (either directlyor through the amicus curiae) move this Court forappropriate directions.

(xii) It was apprehension of some learned counsel that unrulysituations may be created in court to terrorise witnesses. It needsno indication that the court shall have to deal with such situationssternly and pass necessary orders. SIT shall also look into thisarea.

A(xiii) Periodic three monthly reports shall be submitted bySIT to this Court in sealed covers.

41. List after four months.”

(emphasis supplied)

BIt is thus noticed that this Court permitted trial of concerned (nine)cases including the Gulberg Society case being CR No. 67/2002 toproceed. This judgment is also indicative of the high trust reposed by thisCourt in the SIT including about directing the State authorities to abideby the instructions given by the SIT.

C(m) As directed by this Court vide order dated 27.4.2009[19], theSIT examined the complaint and also recorded statements of theconcerned persons. Mr. A.K. Malhotra, former DIG, CBI and memberof the SIT recorded statements of total 187 witnesses and Mr. HimanshuShukla, DCP, Crime Branch and I.O., SIT examined 145 witnesses, inconnection with the complaint of appellant – Zakia Ahsan Jafri, datedD8.6.2006. total of approximately 275 persons were questioned by themin compliance with the direction given by this Court. Two new memberscame to be inducted in the SIT on 15.5.2009. When the investigationinto the stated complaint was ongoing, the SIT submitted lastsupplementary chargesheet in the Gulberg Society case being CR No.E67/2002, on 12.8.2009, which fact was placed on record before thisCourt.

(n) SLP(Crl.) No. 1088/2008 then came up for hearing on 19.1.2010alongwith other cases. The Court was duly informed that the SIT hadsubmitted an interim report and asked for five months’ further time toFcomplete the investigation in respect of complaint of appellant – ZakiaAhsan Jafri, dated 8.6.2006. This Court granted time till 30.4.2010. Theorder dated 19.1.2010, reads thus: -

“ORDER

In regard to the investigations in SLP(Crl.) No. 1088 of 2008, anGinterim report has been submitted by the Special InvestigatingTeam (SIT). In the said report it has been reported that havingregard to the gravity, complexity and vast spread of the allegationsacross Gujarat State, very large number of suspects and

witnesses have to be examined. It is also reported that largenumber of vital documents are still awaited from the Governmentof Gujarat. The Committee has prayed for grant of 5 months’further time for completion of the enquiry and submission of itsfinal report in the matter. The Committee has also sought directionto the Government of Gujarat to hand over all the vital documentsrequisitioned by it from them.

Having perused the correspondence between the SIT and theState Government, filed as annexures with the report, we directthe Government of Gujarat to hand over all the documents, whichhave been requisitioned by the SIT without any further delay. TheSIT would try to complete the enquiry in the matter expeditiouslyand submit its report by 30[th] April, 2010.

The report shall be kept in the sealed covers.

(o) On 6.5.2010, Gulberg Society case being CR No. 67/2002was put on hold because of the resignation of the Special PublicProsecutor appearing in that case. This Court took notice of I.A. No.19816/2009 and passed the following order on 6.5.2010: -

“ORDER

Crl.M.P. No. 19816/2009:

Having perused the comments submitted by the learnedAmicus Curiae on the allegations in the application (I.A. No. 19816of 2009), and discussed the matter with him and the ChairmanSIT at some length, we feel that it would be appropriate andexpedient to direct Mr. A.K. Malhotra, D.I.G. (Retd) C.B.I. toexamine all police records in the possession of the SIT and submita report about the veracity of the explanation given by the SIT oneach of the points raised in the said application. The report shallbe submitted within eight weeks.

We further direct that though it seems unlikely thatthe trials would conclude shortly, but if in any one of thecases the trial is concluded before the next date, theconcerned Trial Court(s) shall not pronounce the finaljudgment till further orders by this Court.

List the application along with other listed applications fordirections on 6[th] August, 2010.

report has been submitted by the Chairman SIT, on theletter of Shri Nigam R. Shukla, the Special Public Prosecutor, inNaroda Police Station case (CR.No.98 of 2002). We requestthe learned Amicus Curia to assist the Chairman, SIT infinding out suitable replacements for S/Shri R.K. Shah andN.R. Nigam, Special Public Prosecutors. As soon as the namesare finalised by the Chairman SIT and communicated to the StateGovernment, appropriate orders in that behalf shall be issued bythe authorities concerned and in both the cases, which were beinghandled by them, shall resume subject to the orders, if any, by theGujarat High Court in transfer petition arising from C.R. No. 67of 2001.

The progress report in Writ Petition (Crl.) No. 109 of 2003filed by the SIT is taken on record.

The same be kept in the sealed covers.”

(emphasis supplied)

In other words, this Court once again passed an interim order inrespect of trial in Gulberg Society case being CR No. 67/2002, directingEthe trial Court to proceed but not to pronounce the final verdict. On12.5.2010, the SIT submitted report prepared by Mr. A.K. Malhotraasking for time for further investigation to enquire into the role ofMr. Gordhan Zadafia, the then Minister of State (Home), Mr. M.K.Tandon, the then Joint Commissioner of Police, Sector-II, AhmedabadCity and P.B. Gondia, the then DCP, Zone-IV, Ahmedabad City.

(p) This Court, on 26.10.2010, permitted Mr. Prashant Bhushan,learned Amicus Curiae to withdraw from the case and instead nominatedMr. Rohinton Fali Nariman, learned senior counsel (as he then was) inhis place, to assist the Court. In addition, the Court directed handingover of the reports of Mr. A.K. Malhotra to the Amicus Curiae, afterGtaking it on record. This Court also lifted the stay on the pronouncementof the judgment except in Gulberg Society case being CR No. 67/2002.Relevant portion of the said order dated 26.10.2010, reads thus: -

SLP(Crl.) No. 1088/2008

At the outset, Mr. Prashant Bhushan has expressedunwillingness to continue as the Amicus Curiae and requestedthat he may be relieved from the case. We accede to the requestand appoint Mr. Rohinton Fali Nariman as an Amicus Curiae toassist the Court in this case.

Mr. Bhushan states that he will return the papers of thecase received from the office in sealed cover. On receipt of therecord, the office shall forward the same to Mr. Nariman.

Report dated 20th October, 2010 on further investigationagainst Shri M.K. Tandan Etc. has been filed by the Chairmanand one of the Members of the Special Investigation Team.According to the report, the investigation is likely to be concludedwithin fortnight. The report is taken on record.

Let the final report be filed before the next date. List on2nd December, 2010, at 3.00 p.m. for consideration of the reports.

Crl.M.P. No. 22117 and 22115 of 2010 in SLP(Crl.) No.1088/2008

In view of the fact that Mr. Prashant Bhushan has beendischarged from the case as Amicus Curiae, both theseapplications are rendered infructuous and are disposed ofaccordingly.

Crl.M.P. No. 19816 of 2009 In WP(Crl.) Nos. 37-52/2002

In view of the subsequent developments, no further ordersare called for in this application and the same is dismissedaccordingly.

Crl.M.P. Nos. 22161-22162 of 2010 In WP(Crl.) Nos. 37-52 of 2002

Adjourned sine die.

Crl.M.P. No. 22325/2010 In WP(Crl.) NOs. 37-52 of 2002

At this stage, no orders are called for in the application.The application stands disposed of accordingly.

Crl.M.P.NOs. 22326-22327/2010 in WP(Crl.) No. 109/2003

In the light of the report of Mr. A.K. Malhotra dated13th August, 2010 and the submissions of learned AmicusCuriae, we lift the restraint order passed on 6th May, 2010,in all the cases, except in Cr. No. 67 of 2002 (MeghaniNagar Gulbery Society case), in which case the trial mayproceed but the final judgment shall not be pronounced.The trial Courts are now free to pronounce the final judgments.

The applications are disposed of accordingly.

WP(Crl.) No. 109/2003.

report dated 20th October, 2010 has been filed bythe Chairman, SIT, indicating the progress in trials in allthe cases. The Chairman has stated that the trials are beingclosely monitored by him and other members of his team.According to the report, the trials in all the cases, on thewhole, are proceeding quite satisfactorily.

Let copy of the report be supplied to the learned AmicusCuriae.

The report will be taken up for consideration on 2ndDecember, 2010, at 3.00 p.m.

We direct that in future the office shall list only thoseapplications in which specific orders for listing are made. All thedisposed of applications shall be detached from the record andshall not be shown in the cause list. The office shall also preparea complete list of all the pending applications and place before theCourt for appropriate orders on the next date.

The aforestated two reports filed by the SIT shall bekept in the sealed covers.

SLP(Crl.) No. 7046/2010

In the first instance, issue notice to respondent No.1. Ms.Hemantika Wahi waives service of notice on behalf of the saidrespondent and seeks time to file reply affidavit. Let the needfulbe done within two weeks with advance copy to the learnedcounsel for the petitioners and to learned Amicus Curiae.Rejoinder affidavit, if necessary, shall be filed by the next date.Copies of the petition shall also be supplied to Mr. Harish N Salve,

the learned Amicus Curiae and the Chairman, SIT for theircomments.

List on 2nd December, 2010 at 3.00 p.m.”

(emphasis supplied)

(q) The further report filed in this case had mentioned that mostof the allegations were not borne out from the statements and materialscollated during investigation. However, it was recommended that furtherinvestigation under Section 173(8) of the Code in respect of Mr. GordhanZadafia, Mr. M.K. Tandon and Mr. P.B. Gondia, may be necessary.Notably, the further investigation was conducted by Mr. Himanshu Shukla,DCP, Crime Branch and I.O., SIT and report was submitted by him tothis Court on 17.11.2010.

(r) As noticed earlier, on one hand, the trial concerning GulbergSociety case being CR No. 67/2002 involving the gruesome killing of thehusband of the appellant and others by violent mob was allowed toproceed by this Court even when the SIT was enquiring into the complaintof appellant – Zakia Ahsan Jafri, dated 8.6.2006; and in that process, thedeposition of Mr. Ashish Khaitan, senior journalist (who had conductedthe Tehelka Sting Operation) was recorded by the trial Court on 2.8.2010,of Mr. Rahul Sharma on 15.9.2010 and of appellant – Zakia Ahsan Jafrion 22.10.2010.

(s) Further investigation report came to be submitted before thisCourt by Mr. Himanshu Shukla on 17.11.2010. On 23.11.2010[20],Mr. Rohinton Fali Nariman, learned Amicus Curiae requested the Courtto allow him to withdraw from the case. That request was acceded toby the Court and in his place, Mr. Raju Ramchandran was appointed asAmicus Curiae to be assisted by Mr. Gaurav Agrawal, learned counsel.The Court also directed handing over to both the newly appointed AmicusCuriae, the reports of SIT. The Amicus Curiae in turn examined theSIT reports concerning complaint of appellant, dated 8.6.2006, and placedtheir observations on record in the form of note made over to the SIT.This Court then vide order dated 20.1.2011, directed thus: -

20‘‘ORDER

Since Mr. Rohinton Fali Nariman, Senior Advocate has expressed his inability to assistthe Court in this case, we request Mr. Raju Ramachandran, Senior Advocate and Mr.Gaurav Agarwal, Advocate, to assist the Court in this case as Amicus Curiae. All thepapers received back from Mr. Prashant Bhushan, learned counsel, in sealed cover shallbe forwarded to Mr. Gaurav Agarwal.”

“ORDER

W.P.(CRL.)NO. 109/2003

Mr. Harish N. Salve, the learned amicus curiae, has placedbefore us note, pointing out that the Presiding Judge conductingtrial in Naroda Police Station I.CR No.100/2002, has since beentransferred by the High Court in routine transfers of the JudicialOfficers in the State. Learned amicus suggests that since the trialin the said case is at an advanced stage, the Officer may not beshifted.

We feel that it will be proper and expedient if this request ismade by the Chairman, Special Investigation Team (SIT) beforethe Chief Justice of Gujarat High Court on the administrative side.We are confident that having regard to the fact situation, thelearned Chief Justice will pass appropriate orders on the requestof the Chairman, SIT.

Progress Report, dated 18th January, 2011, regarding nineunder trial cases has been filed by the Chairman, SIT. It appearsfrom the said report that except for two Naroda cases, trial inother cases is nearing completion.

In the said report, it is also pointed out that Presiding officerlooking after the trial of Gulberg Society case (Shri B.U. Joshi)and Naroda Patiya case (Ms. Jyotsnaben Yagnik) have beentransferred out of Ahmedabad on 30[th] December, 2010. The reportis taken on record and shall be kept in sealed cover.

Special Leave Petition (Criminal) No. 7046 of 2010

Ms. Kamini Jaiswal, learned counsel appearing for thepetitioners prays that orders on the petition may be deferred forsome time as she has not yet received complete instructions inthe matter.

Call on 3rd March, 2011 at 3.00 p.m.

W.P.(CRL.) NO. 37-52/2002

An additional affidavit has been filed by Ms. TeestaSetalvad, one of the petitioners, explaining thecircumstances under which copies of two letters addressedby her to Shri R.K. Raghavan, Chairman, SIT, were

endorsed to the Office of High Commissioner for HumanRights (OHCHR), at Geneva. Ms. Kamini Jaiswal stateson instructions from Ms. Teesta Setalvad, who is presentin Court, that in future no such letters shall be sent to thesaid organization. In light of the statement, we close theissue at that.

SLP (CRL.)...CRLMP.NO.1127/2011

Delay condoned.

No ground is made out for grant of permission to file theSpecial Leave Petition. The Special Leave Petition is dismissedaccordingly.

SLP (CRL)....CRLMP. NO.1519/2011

Delay condoned.

Issue notice returnable on 3rd March, 2011.

SLP(CRL) NO. 1088 OF 2008

note has been submitted by Mr. RajuRamachandran, learned amicus curiae, for our perusal. Acopy of the said note has also been supplied to theChairman, SIT, who is present in Court today.

List the matter on 3rd March, 2011 at 3.00 p.m.”

(emphasis supplied)

It is noticed from this order that certain issues were raised inconnection with two letters addressed by Ms. Teesta Setalvad toDr. R.K. Raghavan, Chairman, SIT, which were also endorsed to theOffice of High Commissioner for Human Rights Council (OHCHR),Geneva. Ms. Teesta Setalvad was called upon to explain the same. Inresponse to which she had to give assurance to this Court that in futureshe will not repeat the act of forwarding letters written by her to SIT tothe said organisation (OHCHR) and on such assurance, the issue stoodclosed.

(t) The matters were then listed on 15.3.2011, when Mr. RajuRamchandran, learned Amicus Curiae submitted note, which hadalready been supplied to the Chairman, SIT. The Court directed theChairman, SIT to look into the observations made by the Amicus Curiaeagainst each of the findings made by the SIT. The order reads thus: -

“ORDER

SLP(Crl.) No. 1088/2008

copy of the note submitted by the learned amicus curiaehas already been supplied to the Chairman, Special InvestigationTeam (SIT). Let the Chairman, SIT, look into the observationsmade by the learned amicus curiae against each of the findingsgiven by the SIT on the allegations made in the complaint andsubmit his report thereon. If considered necessary, it will beopen to the SIT to carry out further investigations in lightof the observations made in the said note. The report shallbe submitted by 25[th] April, 2011.

List the case on 27[th] April, 2011 at 3.00 p.m.

The note submitted by the learned amicus curiae shall bekept in sealed cover.

(emphasis supplied)

(u) What is significant to notice is order dated 5.5.2011 passed bythis Court. The same reads thus: -

“ORDER

SLP(Crl.) No. 1088/2018

Pursuant to our order dated 15[th] March, 2011, theChairman, Special Investigation Team (SIT) has filed reporton the further investigations carried out by his team alongwith his remarks thereon. Statements of witnesses as also thedocuments have been placed on record in separate volumes. Leta copy of all these documents along with the report of the Chairmanbe supplied to Mr. Raju Ramachandran, the learned Amicus Curiae.

The learned Amicus Curiae shall examine the report,analyse and have his own independent assessment of thestatements of the witnesses recorded by the SIT and submithis comments thereon. It will be open to the learned AmicusCuriae to interact with any of the witnesses, who have beenexamined by the SIT, including the police officers, as hemay deem fit.

If the learned Amicus Curiae forms an opinion thaton the basis of the material on record, any offence is madeout against any person, he shall mention the same in hisreport.

List on 28[th] July, 2011 at 3.00 p.m.

CRL.M.P. Nos. 21849/2009 and 21850/2009 in SLP(CRL.) No.1088/2008

At the request of learned counsel for the applicants,adjourned to 28[th] July, 2011 at 3.00 p.m. for preliminary hearing.

SLP(CRL.) NO. 1032/2011

Learned counsel for the respondents submit that they donot propose to file any counter affidavit to the petition.

List the matter for final disposal on 28[th] July, 2011 at 3.00

All the reports shall be kept in sealed cover.”

(emphasis supplied)

In terms of this order, Mr. Raju Ramchandran, learned AmicusCuriae was granted liberty to examine the SIT report, analyse the sameand give his own independent assessment of the statement of witnessesrecorded by the SIT and submit his comments thereon. For doing that,he was also permitted to interact with any of the witnesses, who hadbeen examined by the SIT including the police officials, as he may deemfit. In this two-month period, the Amicus Curiae had interacted with allconcerned, as he desired including with Ms. Teesta Setalvad. Thisdirection was in the nature of permitting the Amicus Curiae to do appraisalof the actions of the investigator (SIT) appointed by this Court. This wasan extra effort not only expected from the Amicus Curiae, but also forreassuring the Court that each allegation in the complaint dated 8.6.2006is dealt with appropriately in the report submitted by the SIT. The learnedAmicus Curiae, after analysing the entire material including the reports,then submitted his report on 25.7.2011.

(v) After the report was submitted by Amicus Curiae on 25.7.2011,the SIT submitted its further report after investigation including to dealwith the observations of the Amicus Curiae on every aspect noted in hisreport. This further report of the SIT was placed before this Court on

A12.9.2011. This Court being satisfied with the fact that investigation hadbeen completed by the SIT under its supervision, following the decisionin Bhagwant Singh vs. Commissioner of Police & Anr.[21], as well as,Vineet Narain & Ors. vs. Union of India & Anr.[22], Union of India &Ors. vs. Sushil Kumar Modi & Ors.[23], M.C. Mehta (Taj CorridorScam) vs. Union of India & Ors.[24] and Narmada Bai vs. State ofBGujarat & Ors.[25], proceeded to pass the following order on 12.9.2011[26]:-

8. The learned amicus curiae has now submitted his final reportdated 25-7-2011. In light of the above conspectus and the reportCof the learned amicus curiae, the question for determination is thefuture course of action in the matter.

9. We are of the opinion that bearing in mind the scheme ofChapter XII of the Code, once the investigation has beenconducted and completed by SIT, in terms of the ordersDpassed by this Court from time to time, there is no courseavailable in law, save and except to forward the final reportunder Section 173(2) of the Code to the court empoweredto take cognizance of the offence alleged. As observed by athree-Judge Bench of this Court in M.C. Mehta (Taj CorridorScam) v. Union of India, (2007) 1 SCC 110, in cases monitoredEby this Court, it is concerned with ensuring proper andhonest performance of its duty by the investigating agencyand not with the merits of the accusations in investigation, whichare to be determined at the trial on the filing of the charge-sheetin the competent court, according to the ordinary procedureFprescribed by law.10. Accordingly, we direct the Chairman, SIT to forward afinal report, along with the entire material collected by SIT,to the court which had taken cognizance of Crime ReportNo. 67 of 2002, as required under Section 173(2) of theGCode. Before submission of its report, it will be open to

21 (1985) 2 SCC 537 (paras 4 and 5)22 (1996) 2 SCC 19923 (1998) 8 SCC 66124 (2007) 1 SCC 11025 (2011) 5 SCC 79H26 (2011) 12 SCC 302 – Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors.

SIT to obtain from the amicus curiae copies of his reportssubmitted to this Court. The said court will deal with thematter in accordance with law relating to the trial of theaccused, named in the report/charge-sheet, includingmatters falling within the ambit and scope of Section 173(8)of the Code.

11. However, at this juncture, we deem it necessary to emphasisethat if for any stated reason SIT opines in its report, to besubmitted in terms of this order, that there is no sufficientevidence or reasonable grounds for proceeding against anyperson named in the complaint dated 8-6-2006, before takinga final decision on such “closure” report, the court shall issuenotice to the complainant and make available to her copies of thestatements of the witnesses, other related documents and theinvestigation report strictly in accordance with law as enunciatedby this Court in Bhagwant Singh v. Commr. of Police, (1985) 2SCC 537. For the sake of ready reference, we may note that inthe said decision, it has been held that in case where theMagistrate to whom report is forwarded under Section 173(2)(i)of the Code, decides not to take cognizance of the offence and todrop the proceedings or takes view that there is no sufficientground for proceeding against some of the persons mentioned inthe FIR, the Magistrate must give notice to the informant andprovide him an opportunity to be heard at the time of considerationof the report.

12. Having so directed, the next question is whether this Courtshould continue to monitor the case any further. The legal positionon the point is made clear by this Court in Union of India v. SushilKumar Modi, (1998) 8 SCC 661, wherein, relying on the decisionin Vineet Narain v. Union of India, (1996) 2 SCC 199, Benchof three learned Judges had observed thus (Sushil Kumar Modicase, (1998) 8 SCC 661:

“6. … that once charge-sheet is filed in the competent courtafter completion of the investigation, the process of monitoringby this Court for the purpose of making CBI and otherinvestigative agencies concerned perform their function ofinvestigating into the offences concerned comes to an end;and thereafter it is only the court in which the charge-sheet is

filed which is to deal with all matters relating to the trial of theaccused, including matters falling within the scope of Section173(8) of the Code of Criminal Procedure. We make thisobservation only to reiterate this clear position in law so thatno doubts in any quarter may survive.”

13. In M.C. Mehta v. Union of India, (2008) 1 SCC 407, aquestion arose as to whether after the submission of the finalreport by CBI in the Court of Special Judge, pursuant to this Court’sdirections, this Court should examine the legality and validity ofCBI’s action in seeking sanction under Section 197 of the Codefor the prosecution of some of the persons named in the finalreport. Dismissing the application moved by the learned amicuscuriae seeking directions in this behalf, three-Judge Bench, ofwhich one of us (D.K. Jain, J.) was member, observed thus:“9. … The jurisdiction of the court to issue writ of continuousmandamus is only to see that proper investigation is carriedout. Once the court satisfies itself that proper investigationhas been carried out, it would not venture to take over thefunctions of the Magistrate or pass any order which wouldinterfere with his judicial functions. Constitutional scheme ofthis country envisages dispute resolution mechanism by anindependent and impartial tribunal. No authority, save and excepta superior court in the hierarchy of judiciary, can issue anydirection which otherwise takes away the discretionaryjurisdiction of any court of law. Once final report has beenfiled in terms of sub-section (1) of Section 173 of the Code ofCriminal Procedure, it is the Magistrate and Magistrate alonewho can take appropriate decision in the matter one way orthe other. If he errs while passing judicial order, the samemay be subject-matter of appeal or judicial review. Theremay be possibility of the prosecuting agencies not approachingthe higher forum against an order passed by the learnedMagistrate, but the same by itself would not confer jurisdictionon this Court to step in.”

14. Recently, similar views have been echoed by this Courtin Narmada Bai v. State of Gujarat, (2011) 5 SCC 79. In thatcase, dealing with the question of further monitoring in case

upon submission of report by CBI to this Court, on the conclusionof the investigation, referring to the earlier decisions in VineetNarain, (1996) 2 SCC 199, Sushil Kumar Modi, (1998) 8 SCC661 and M.C. Mehta (Taj Corridor Scam), (2007) 1 SCC 110,speaking for the Bench, one of us, (P. Sathasivam, J.) has observedas under: (Narmada Bai case, (2011) 5 SCC 79:

“70. The above decisions make it clear that though this Courtis competent to entrust the investigation to any independentagency, once the investigating agency complete their functionof investigating into the offences, it is the court in which thecharge-sheet is filed which is to deal with all matters relatingto the trial of the accused including matters falling within thescope of Section 173(8) of the Code. Thus, generally, this Courtmay not require further monitoring of the case/investigation.However, we make it clear that if any of the parties includingCBI require any further direction, they are free to approachthis Court by way of an application.”

15. Deferentially concurring with the dictum of this Court in theaforenoted decisions, we are of the opinion that in the instantcase we have reached stage where the process of monitoringof the case must come to an end. It would neither be desirablenor advisable to retain further seisin over this case. We dispose ofthis appeal accordingly.

(emphasis supplied)

(w) As per the direction given by tis Court, the SIT presented itsfinal report on 8.2.2012 before the concerned Metropolitan Magistrate,who had taken cognizance of Gulberg Society case being CR No. 67/2002.

(x) It appears that the appellant corresponded with the SIT, aswell as, the Magistrate for supplying certain documents. The Magistratevide order dated 10.4.2012, directed supply of partial documents and on16.5.2012, he rejected the request for granting rest of the documentsincluding enquiry report, further investigation report and statementsenclosed therewith.

A(y) This led to filing of SLP(Crl.) No. 8989/2012. This petitionwas finally allowed on 7.2.2013 being converted into Criminal AppealNo. 273/2013. The order reads thus: -

“ORDER

Heard all the parties concerned including Mr. RajuRamachandran, learned Amicus Curiae.

Leave granted.

The complainant is the appellant. She filed an applicationbefore the Metropolitan Magistrate claiming supply of all thedocuments filed along with the closure report dated 07.10.2012by the SIT.

Before considering the claim of the appellant, it is relevantto refer to the earlier order of this Court dated 12[th] September,2011 made in Criminal Appeal No. 1765 of 2011. After going intovarious aspects, this Court issued the following directions to theSIT:

“Accordingly, we direct the Chairman, SIT to forward afinal report, along with the entire material collected by SIT,to the court which had taken cognizance of Crime ReportNo. 67 of 2002, as required under Section 173(2) of theCode. Before submission of its report, it will be open to SITto obtain from the Amicus Curies copies of his reportssubmitted to this Court. The said Court will deal with thematter in accordance with law relating to the trial of theaccused, named in the report/charge-sheet, includingmatters falling within the ambit and scope of Section 173(8)of the Code. However, at this juncture, we deem itnecessary to emphasise that if for any stated reason theSIT opines in its report, to be submitted in terms of thisorder, that there is no sufficient evidence or reasonablegrounds for proceeding against any person named in thecomplaint, dated 8-6-2006, before taking final decision onsuch ‘closure’ report, the Court shall issue notice to thecomplainant and make available to her copies of the (1)statements of the witnesses, (2) related documents and (3)investigation report strictly in accordance with law asenunciated by this Court in Bhagwant Singh v. Commr. of

Police & Anr. [(1985) 2 SCC 537. For the sake of readyreference, we may note that in the said decision, it has beenheld that in case where the Magistrate to whom reportis forwarded under Section 173(2)(i) of the Code, decidesnot to take cognizance of the offence and to drop theproceedings or takes view that there is no sufficient groundfor proceeding against some of the persons mentioned inthe FIR, the Magistrate must give notice to the informantand provide him an opportunity to be heard at the time ofconsideration of the report.”

Pursuant to the above direction, the SIT submitted finalreport to the Court concerned. Before the said Court, the appellant/complainant made an application for supply of all the materialsfiled before the said Court. According to the appellant, pursuantto the directions of the Magistrate though she was supplied certainmaterials, still the SIT has not provided all the required documents.Not satisfied with the order of the learned Magistrate, the appellanthas filed this appeal.

We have heard learned counsel appearing for the appellant,State as well as the learned Amicus Curiae.

On going into the earlier direction of this Court as well asthe impugned order passed by the Magistrate, we issue thefollowing directions. The appellant is entitled to have copies ofthe report dated May 12, 2010 in two volumes, excluding theChairman’s comments forwarded to this Court. The appellant isalso entitled to have copies of reports dated November 17, 2010and April 24, 2011 filed under Section 173(8) of the CriminalProcedure Code, 1973.

Since the statements recorded contain signature, itis clarified that if the signed statements are supplied, thesame shall be treated as statements made under Section161 of the Code of Criminal Procedure, 1973.

It is further clarified that the statements recorded inthe inquiry shall only be used in the proceedings relatingto the complaint dated June 8, 2006 filed by the appellantand shall not be used for any other purpose or in connectionwith any other case. We also clarify that the present order

Ais confined to the facts and circumstances of the complaintdated 8[th] June, 2006 and shall not be treated as precedent,in any other case.

The appellant is granted eight weeks’ time for filing theprotest petition from the date she gets the required copies asBmentioned above.

In view of the above conclusion and direction, the impugnedorders of the learned Magistrate dated 16.07.2012 and 27.11.2012are set aside to the extent mentioned above. The appeal is disposedof in the above terms.”

(emphasis supplied)

This order, besides issuing directions, as prayed regardingfurnishing of documents, also clarified the position that the statementsrecorded by the SIT pursuant to the investigation undertaken after27.4.2009 in respect of the allegations in complaint dated 8.6.2006, beDtreated as statements of witnesses under Section 161 of the Code, which,however, cannot be used for any other purpose including the trial ofGulberg Society case being CR No. 67/2002.

(z) Only after getting all the material accompanying the report,appellant – Zakia Ahsan Jafri proceeded to file protest petition onE15.4.2013 before the Metropolitan Magistrate. The Magistrate, afterconsidering the protest petition and the final report of the SIT dated8.2.2012, by speaking order dated 26.12.2013, rejected the protestpetition filed by appellant and accepted the final (closure) report filed bythe SIT and passed consequential order.

F(aa) Against this decision, appellant carried the matter before theHigh Court by way of the stated criminal revision application, whichcame to be disposed of vide impugned judgment and order dated5.10.2017, with liberty to appellant to agitate the issue of furtherinvestigation upon availability of new material/information. Against thesaid decision, the present appeal from special leave has been filed.G

(bb) To complete the narration of relevant facts, we may alsoadvert to the order passed by this court on 13.4.2017 in W.P.(Crl.) No.109/2003, commending the efforts of the SIT as well, while relieving theChairman of the SIT from his responsibility. The said order reads thus: -

1. While placing on record our appreciation for the servicesrendered to this Court by the learned Amicus Curiae, we areimmensely satisfied with the manner in which the proceedingshad been conducted in all the trials, resulting in the conclusion ofall but one trial.

2. Learned Amicus Curiae has made request on behalf of ShriR.K. Raghavan, the Chairman of the Special Investigation Team(SIT), seeking to withdraw from the SIT hereinafter, on accountof his ill health. We appreciate the request made, and release himfrom his responsibility as the Chairman of the SIT.

3. similar request has been made for the release of Shri K.Venkatesham. The instant request is based on the fact, that ShriK. Venkatesham has since been appointed as Commissioner ofPolice, Nagpur, and therefore, his onerous responsibility leaveshim limited time to deal with other issues. For the reasons broughtto our notice, we hereby 1 relieve Shri K. Venkatesham from theduties vested in him as member of the SIT.

4. In the above view of the matter, we would request the remainingmember of the SIT, namely, Shri A.K. Malhotra, to continue todischarge the responsibility hereto before entrusted to the SIT,himself. Shri A.K. Malhotra shall furnish quarterly reports to thisCourt.

5. Post for hearing in the last week of July, 2017.”

SUBMISSIONS OF THE APPELLANT

6. (a) The thrust of the argument was broadly two pronged. Thefirst being the SIT has jumped to the conclusion that no offence is madeout against the persons named in the complaint/protest petition despitematerial and statements collated by it during investigation indicating tothe contrary. Additionally, the failure of the SIT to investigate into crucialallegations/material referred to in the protest petition.

(b) The second is about the failure of the Metropolitan Magistratein exercising the powers vested in him including to take cognizance ofthe offence and in not directing further investigation by the SIT in respectof certain matters. Even the High Court has committed the same fatalerror. Reliance is placed on Vishnu Kumar Tiwari vs. State of Uttar

APradesh & Anr.[27], to buttress these points. As held in AbhinandanJha & Ors. vs. Dinesh Mishra[28], there is no obligation on the Magistrateto accept the final report. It is open to the Magistrate to take cognizanceif he is so satisfied by invoking powers under Section 190(1)(c) of theCode including to direct further investigation.

B(c) The appellant in the protest petition had articulated broadgrounds on which final SIT report was being opposed. The same readthus: -

“31. The Petitioner submits that the Closure Report needs to berejected and the Protest Petition allowed on the following grounds,Cwhich are in addition to the reasons and grounds set out elsewherein this Petition:

a) The Documents and annexures as submitted by the SITalong with the closure report make out clear case for takingcognizance against all the accused;

b) Without prejudice to the above, the SIT while investigating,has not examined all the necessary witnesses or called for allthe necessary documents as set out in the Petition. In view ofthis the Investigation is defective and incomplete. Furtherinvestigation therefore needs to be ordered to arrive at theEwhole truth;

c) Without prejudice to the above, the SIT’s analysis of thestatements of witnesses and other documents is hopelesslybiased, inaccurate, and suffers from total non application ofmind.

Fd) SIT has taken great pains to disbelieve and discredit anywitnesses who have spoken against the Accused No.1 or forthat matter against any accused. Besides, the witnesses whowere favouring Accused were not confroned with relevantdocuments and statements.

e) SIT was required to ascertain whether there is any substance

to proceed against the accused persons and once it comes tothe conclusion that such substance exists it should haveproceeded to file Charge Sheet. Such substance exists against

27 (2019) 8 SCC 27 (paras 7, 17, 27, 28, 32, 33 and 42)

28 AIR 1968 SC 117 = 1967 (3) SCR 668 (at page 678) (para 15 and 21)

all the accused. There are witnesses and documents to castreasonable doubt against the conduct of all the accused andpointing towards their culpability. For instance, the statementsof senior officers like RB Sreekumar, Rahul Sharma, SanjivBhatt as well as the Tehelka tapes (validated by the SessionsCourt) are enough to file charge sheet/ take cognizance.Instead of doing this, the SIT has acted like super courtdissecting every bit of evidence, turning and twisting it, ignoringrelevant material and accepting uncorroborated irrelevantmaterial to somehow whitewash this entire exercise. Worsethe SIT has deliberately and manifestly ignored the hugevoluminous evidence that is available on record. SIT has actedbeyond its jurisdiction as an Investigating Agency. In fact thisHon’ble Court ought to disregard the SIT Report altogetherand look at the gathered evidence independently to arrive atthe conclusion that cognizance ought to be taken.f) Apart from anything it needs to be verified whether theClosure Report is based on collective application of mind bySIT as whole or not. Large number of documents/ statementsare in Gujarati. Admittedly they have not been translated.Majority of the SIT members cannot read Gujarati. In order todecide the weight to be attributed to each of the statements/document it was necessary that the SIT, as collective appliedits mind to these documents. In the absence of any translationsit is not clear as to how the SIT has come to the conclusions ithas arrived at.

g) The Petitioner submits that against each of the accusedthere is sufficient material to take cognizance of offences ofconspiracy and abetment, subversion of public justice,destruction and suppression of evidence, of rioting, theft,robbery, murder, attempt to commit murder, etc. Besides,against many of the accused Charge Sheets should have alsobeen filed for hate speech.

h) SIT should have considered that once public servant isheld to be negligent in performing his duties, and if any criminaloffence has taken place, he ought to be automatically chargedwith abetment. This is so because the definition of abetmentincludes acts as well as omissions. SIT has come to the

conclusion that Accused Nos - 33 then Joint Commissioner ofPolice MK Tandon and then DCP Zone IV PB Gandia, werenegligent in their duties: Having arrived at this conclusion, SIThad no option but to charge them with the criminal offence ofabetment at least as the negligence did result in offences beingcommitted or not being prevented.

i) SIT should have held that the statements and the documentswhich have been gathered make out clear case of conspiracyagainst all including Accused No. 1.

j) The Petitioner submits that as has been held by various courtsa conspiracy is usually hatched in secrecy and very rarely thereis direct evidence of this. The offence can only be provedlargely from inference drawn from acts or illegal omissionscommitted by the conspirators. Even at the time of trial, thereneed not be proof of express agreement. The agreement canbe proved by necessary implication. Besides, it is not necessarythat all the conspirators participate in all the offences resultingfrom the conspiracy though they would be liable for each oneof them.

k) In the present case direct evidence exists in terms of SanjivBhatt ‘s testimony about at least one part of the conspiracybeing hatched at the meeting held on 27.2.2002. Once thisevidence is available it is for the trial court to decide whatweight to attribute to it. It is not for the Investigating Agencyto dissect this evidence with view to discredit the same.

l) In any event, without prejudice to whether Mr. Modi madethe statement attributed to him in the meeting on 27.2.2002 thefact that the meeting took place is not disputed. One has totherefore to look at the subsequent and prior events to decideas to what could have transpired at this meeting. It is obviousthat as the event reflect conspiracy was hatched at thismeeting to allow the people to vent their anger (justified orotherwise, instigated or otherwise, organized or otherwise) andnot to intervene when offences are committed. In addition theforces were encouraged to abet this ire and to assist the peoplein venting it and at times to participate in it. Anyone who triedto maintain law and order was penalized. The conspiracy wasvery clear and played out over the next few days.m) The Petitioner further submits that the offences ofconspiracy and abetment along with the responsibilities of publicservants have, independently or together introduced the conceptof command responsibility under our criminal law. Thereforeany public servant shall be criminally responsible for crimescommitted by forces or officers under his or her effectiveauthority and control, as result of his failure to exercise control(preventive or punitive) over these crimes. This would includethe Chief Minister/ Home Minister, other Ministers, police andbureaucratic top brass. This is more so since in the presentcase they knew or owing to the circumstances at the time,should have known that the forces were committing or aboutto commit such crimes. It is further because the said publicservants failed to take all necessary and reasonable steps toprevent or repress their commission or to submit the matter tothe competent authority for investigation or prosecution.

n) The Chief Minister/ Home Minister was directly in chargeof law and order in the State. Under his aegis crimes werecommitted. No steps were taken to curb these crimes. Just togive an example, preventive arrests were essential once theBandh call was made. These are required for preventcommission of offence. No such arrests were made makingthe Home Minister downwards all responsible for crimes havingbeen committed for failure to carry out preventive arrests.Besides, if instructions were given to make preventive arrestsand they were not carried out then failure to take steps againstthe officers for not having done preventive arrests itself willamount to failure to discharge duties as public servant andabetment.

o) SIT has misdirected itself in looking at the allegations andevents in piecemeal manner rather that holistic manner.What was needed to be done was to look at events prior to27.2.2002, on 27.2.2002 and subsequent to 27.2.2002 to see ifa common thread emerges. If this was done an obvious andapparent link between all these events and conduct of theaccused comes out which would be sufficient to charge themwith conspiracy and abetment, apart from other offences.

p) We further submit that offences under S.153 and havebeen made out against accused who were charged with the

same in our complaint and the SIT ought to have filed ChargeSheets in respect of the same.”

(d) Besides the aforesaid points, in the course of arguments andin the written submissions, it has been urged as follows: -

(1) It is urged that Article 21 of the Constitution not only guaranteesprotection of law to all, but it also includes corresponding obligationon the State to fairly investigate the criminal cases and prosecutethe persons involved in commission of such crime as per the law.The provisions in the form of the Code is the procedure establishedby law within the meaning of Article 21. In the present case, theSIT failed to investigate into crucial matters in the spirit of mandateof Section 156 of the Code and it is also failure of the Magistratein exercise of powers to the fullest extent predicated in Section173 read with Section 190, in particular, sub-Section (1)(b) of theCode. Even the High Court fell foul of the same error whiledealing with the revision application of the appellant.

(2) The complaint dated 8.6.2006 was only piece of information.The stand taken by the SIT that allegations beyond complaintcannot be looked at, is legally untenable. If such plea iscountenanced, it would result in equating with, or limit the enquiryas in the case of scrutiny of plaint in civil suit, wherein theplaintiff is bound by the averments/contents of the complaint. Theorder passed by this Court directing the SIT to “look into” thecomplaint, in no way constricted the jurisdiction of the Magistrateto direct scrutiny of allegations, which come to the fore, consequentto filing of protest petition.(3) The fact that appellant – Zakia Ahsan Jafri was relegated bythis Court to file protest petition if the situation so warranted, wasnot to curtail the powers of the Magistrate including to direct furtherinvestigation. In fact, the order of this Court indicates that it wasopen to the Magistrate to exercise all powers vested in him fordealing with the issues that may arise upon presentation of finalSIT report and protest petition by appellant – Zakia Ahsan Jafri.

(4) It is significant to note that the complaint dated 8.6.2006 referredto matters not limited to events unfolding in and around the GulbergSociety crime, but also about the series of activities and actionspointing towards the instructions being issued from the highest

authority bordering on conspiracy and abetment. The order ofthis Court dated 7.2.2013 reinforces the stand taken by theappellant that the Magistrate had ample power to issue directionsto SIT for further investigation into the relevant matters includingreferred to in the protest petition. Reliance was placed onAbhinandan Jha[29]and Popular Muthiah vs. State representedby Inspector of Police[30].

(5) It is urged that it was the duty of the Magistrate to issueprocess and only after recording the evidence of the concernedwitnesses, conclusion could be reached about the truthfulnessof the version and the piece of evidence in support of theaccusation. Reliance was placed on State of Gujarat vs. AfrozMohammed Hasanfatta[31].

(6) According to the appellant, following issues have not beendealt with by the Magistrate and the Gujarat High Court:

(i) Provocative behaviour was followed up by mass mobilisationsand hate speech on 27.2.2002 as part of the wider conspiracy.As early as 12:30 p.m. on 27.2.2002, State IntelligenceBureau[32] officer communicated to the headquarters that therewere reports that some dead bodies of Godhra victims wouldbe brought to Kalupur Station in Ahmedabad and incidents willoccur in Ahmedabad city and preventive action had to be taken.Home Department at Gandhinagar received more than eightmessages intimating about the Godhra incident, the VHP callfor bandh and about violence taking place in Valsad and otherplaces.

(ii) Detailed documentary evidence from the SIT investigationpapers pieced together meticulously in the protest petitionreveals that SIB Messages had noted systematic and violentmobilisations all over the State on 27.2.2002 within minutes ofthe Godhra tragedy. Despite these warnings, neither the HomeDepartment nor the law-and-order machinery made preventivearrests or protected innocent lives. Kar Sevaks with saffronscarves continued shouting anti-Muslim slogans after incident;

29 supra at footnote No. 28

30 (2006) 7 SCC 296 (paras 21 and 54)

31 (2019) 20 SCC 539 (paras 16, 17, 22 and 39)

32 for short, “SIB”

more VHP workers gathered at spot and even after curfewhad been declared at 10 a.m. Even after deployment of SRPand Railway police reinforcements, attempts to burn Muslimshops was taking place at Godhra. Since the investigation ofthe Godhra incident was by the Railway Police, it was theirresponsibility to deal with dead bodies.

(iii) By about 1.00 p.m. in the afternoon violent and murderousattacks at Vadodara and Anand had taken place and by theevening the same had spread far and wide across the state.

(iv) VHP Press Release carried exaggerated accounts of theGodhra incident. By the evening and late night of 27.2.2002,SIB messages from Godhra to Bhavnagar, Mehsana toViramgam (far flung districts of Gujarat) recorded aggressivemobilization and provocative speeches being made exhortingthe mob/citizens to attack Muslims.

(v) An analysis of phone call records officially procured byformer IPS officer – Mr. Rahul Sharma and presented to theNanavati-Shah Commission, had been made and evidence ofelected representatives talking to some of the offenders/accused etc. was presented to the SIT. The following aspectswere not substantively investigated. For example:

(1) The mobile phone records show that Mr. Bhatt, namedin the Zakia Jafri Complaint dated 8.6.2006, was in touchwith doctors from outside the Godhra city, after which postmortems of the Godhra victims were carried out in the openin the Railway Yard.

(2) The mobile phone records also had illustrative details ofthe phone call records of then Additional Commissioner ofPolice - Mr. Shivanand Jha. That has not been investigated.

(3) Similarly, the mobile phone call records of Mr. DineshTogadia etc. of the VHP and other functionaries, had beenmentioned but remained uninvestigated.

(4) The mobile phone call records dated 27.2.2002 ofDr. Praveen Togadia, International General Secretary, VHP,similarly remained to be investigated.

(5) Ahmedabad city recorded 14 Incidents of targetedViolence even as the VHP and its members continuedmaking incendiary and inflammatory speeches.

(6) The Gujarat Police Manual and Booklet to PreventCommunal Violence (specific to Gujarat) lay downmeticulous SOPs (Standard Operating Procedures) - thatwere not followed at all in the wake of the Gujarat tragedy.

(7) Despite the SIT papers containing documentaryevidence of such more instances of attacks and aggressionincluding hate speech, the SIT concealed these in its finalreport and deliberately avoided recording of any conclusiontherein.

(e) The SIT has clearly failed to take into account the materialappended to the complaint dated 8.6.2006, such as report titled “Crimesand Humanity” published in 2002 by the Concerned Citizens Tribunal[33],headed by former Judges of this Court and affidavits filed by the officialsof the State before the Nanavati-Shah Commission. The narrativediscernible from this material has not been examined by the SIT in itsproper perspective despite suggestive of strong case for investigationinto systemic and widespread conspiracy of subversion and inactionby law enforcement, bureaucracy and elected representatives entailingin systemic outbreak and spread of targeted violence across the State.Even the NHRC had to step in to force the State to take correctivemeasures and ensure justice to the riot victim survivors.

(f) It was urged that the SIT was expected to follow the procedureprescribed by law while dealing with the materials/statements collatedduring investigation and more particularly, relied upon by the appellant.As matter of fact, the SIT failed to investigate into the crucial aspectsreferred to in the protest petition. It is submitted that the rationale forprotest petition has been expounded in Abhinandan Jha[34] and BhagwantSingh vs. Commissioner of Police & Anr.[35] It is not only open to theinformant to file protest petition, but also to any injured person on allaspects concerning the complicity of concerned persons in thecommission of alleged crime. That is what was perceived by this Court

33 for short, “CCT”

34 supra at footnote No. 28

35 supra at footnote No. 21

Awhile disposing of the special leave petition filed by the appellant in theearlier round, vide judgment and order dated 12.9.2011[36]. The real intentand purpose of the direction issued by this Court in the earlier round hasbeen whittled down by the SIT, as well as, by the Courts in not examiningall aspects raised by the appellant by way of protest petition.

B(g) In support of this grievance, emphasis is placed on the natureof enquiry done by the SIT in respect of Tehelka Sting Operation, and innot examining the crucial witnesses. The contents of sting operationwere clearly indicative of the genesis of communal violence, whichtransformed lava erupting from volcano, destroying the fertile ground.The SIT had glossed over crucial materials, such as statement of DhawalCJayantilal Patel, the then VHP District Convener, Sabarkantha and AnilPatel, VHP Vibhag Pramukh, Sabarkantha on the specious plea of theefficacy of the extra judicial confession of another person. Reliance isplaced on the decision of this Court in H.N. Rishbund & Anr. vs. Stateof Delhi[37]and Gura Singh vs. State of Rajasthan[38].

(h) The Courts (Magistrate/High Court) have failed to deal withthe allegations pertaining to sting operation indicative of build-up beforethe incident and support of the high authority. Allegations againstMr. Anil Patel were not investigated nor was he arrested, despite theextra judicial confession on record to indicate his complicity. No questionEhas been put to him regarding Tehelka Tape and its contents. Similarly,the Magistrate has erred by going into the veracity/truthfulness orotherwise of the material on record. That could be done only at thestage of trial. The limited role of the Magistrate at this stage is to primafacie examine the material on record to find out the case of reasonablesuspicion to take cognizance of the crime against the named offenders,Fas held in S.K. Sinha, Chief Enforcement Officer vs. VideoconInternational Ltd. & Ors.[39].

(i) It is further urged that in the interests of justice, as the detailedprotest petition alongwith exhaustive documentary evidence waspresented, the Magistrate ought to have taken it as complaint andGdirected further investigation in respect of issues raised therein. In theprotest petition, the complainant has dealt with whole series of events

36 supra at footnote No. 26

37 AIR 1955 SC 196 = 1955 1 SCR 1150 (at pages 1155-1157)

38 (2001) 2 SCC 205 (para 6)

H39 (2008) 2 SCC 492 (para 22)

and supporting documents and not single or stray document from theinvestigation record, and relying on the totality of the circumstances, theallegation regarding larger criminal conspiracy has been set forth. It isher case that the incident of violence across the State of Gujarat afterGodhra incident on 27.2.2002, was encouraged and condoned and overtlysupported by the State Government owing to their actions and omissionson the part of the State constituting criminal conspiracy. The actors inthe said criminal conspiracy were broadly in four groups. To wit, politicalestablishment, bureaucrats, police officers and private organisations andindividuals.

(j) It has been further asserted that the Magistrate and the HighCourt have failed to deal with the following aspects in the context ofissues raised in the protest petition: -

(i) The first component is about conspiracy in regard to the preludeand build-up before the Godhra incident on 27.2.2002. It has beenmentioned in the protest petition that the establishment allowedgeneration of deepened feeling of hatred towards particularcommunity, as can be discerned from the SIB record/messagesfrom at least 12.2.2002 onwards and also transcript of the TehelkaSting Operation.

(ii) The second is about the inaction of the named offender/political/police/bureaucrat functionaries after being intimated about Godhraincident, hate speeches and mob mobilizations across the State on27.2.2002.

(iii) The third is about the inaction/non-response of all the authoritiesincluding police, fire brigade, other functionaries, by not promptlydeploying Army, imposing curfew and taking preventive measuresand making prompt arrests of the culprits after outbreak of massviolence across the State post 27.2.2002.

(k) The ingredients of the conspiracy had been outlined in thecomplaint dated 8.6.2006 and restated with further details and evidencein the protest petition in the shape of the actual official messages indicativeof systemic build-up of communal tension before 27.2.2002. Thetranscript of Tehelka Sting Operation reinforces the facts stated in thesaid messages. Notably, the tapes of the sting operation have beenauthenticated by the CBI consequent to direction given by the NHRCand in fact, used by SIT in the cases investigated by them pursuant to

Athe direction of this Court. These crucial aspects are suggestive of largercriminal conspiracy. However, the same had been conveniently glossedover by the SIT.

(l) To buttress the usefulness of Tehelka Sting Operation, theappellant is relying on the transcripts of Mr. Anil Patel, VHP VibhagBPramukh, Sabarkantha, Mr. Deepak Shah, member of BJP, VadodaraUnit, Mr. Haresh Bhatt, VHP and Bajrang Dal member, Mr. RajendraVyas, President, VHP, Ahmedabad City, Mr. Ramesh Dave, KalupurZila Mantri, VHP and Babu Bajrangi, Bajrang Dal activist to urge thatthese were in the nature of extra judicial confessions and the personsshould have been proceeded for appropriate offence in the context ofCtheir utterances and disclosures. These transcripts were so revealingthat no person with ordinary prudence would disagree with the stand ofthe appellant that the same are replete with strong suspicion, warrantingpenal action. The Magistrate, however, disregarded this sting operationby relying on the dictum of this Court in Piara Singh & Ors. vs. State

Dof Punjab[40]. Whereas the issue regarding admissibility of extra judicialconfession is triable issue and cannot be answered at this stage.

(m) As matter of fact, Mr. Ashish Khaitan, the author/maker ofthe sting operation, had been examined as prosecution witness by theSIT including in Gulberg Society case being CR No. 67/2002. Even forEthis reason, it was not open to the SIT or the Courts to disregard the saidmaterial at this stage. By disregarding such tangible and clinching material,the SIT had attempted to protect the named offenders.

(n) It is further urged that the SIT has not even chosen to appealagainst acquittals in Gulberg Society case being CR No. 67/2002 forFreasons best known to them. In substance, there was clear evidenceregarding conspiracy and corroborated by sting operation and the affidavitof Mr. R.B. Sreekumar, an IPS officer [the then Additional DirectorGeneral of Police (Intelligence)], which have been conveniently discardedby the SIT and by the Courts.

G(o) The requisition of the NHRC order by the SIT (directing CBIto authenticate Tehelka Sting Operation and the CBI’s detailed reporton the same), was followed by submission of the entire completeauthenticated transcripts of the Tehelka Sting Operation by the appellantto the SIT investigating her original complaint (dated 8.6.2006) vide letter

H40 (1977) 4 SCC 452

dated 24.3.2010. In that communication, the appellant also mentioned indetail, various aspects of the matter that need to be thoroughlyinvestigated by the SIT, given the evidence in these extrajudicialconfessions of wider conspiracy and abetment to widespread targetedcrimes. The detailed letter by the appellant to the SIT indicating theissues that need to be investigated, is testimony of the fact that theinvestigating agency is being urged since 2010 to investigate the StingOperation thoroughly. The complete transcripts, total 490 pages, hadbeen provided to the SIT by the appellant.

(p) In the detailed authentication document of the CBI, the CBIofficer authenticates the Sting Operation after forensic voice-tests wereperformed on those on whom the Sting Operation was conducted. In thesaid Authentication Report, the CBI officer says:

“13. On the basis of the above said enquiry, following conclusionscan be drawn:

i. The recordings in the ‘Sting Operation’ are found to beauthentic as per Forensic Science Laboratory Report.

ii. Most of the concerned persons appearing in the StingOperation have admitted that they were contacted and thatthey have talked on the subject of Gujarat Riots, which hasbeen recorded during the sting operations.

14. The original statements and the laboratory report are enclosedherewith. The P.E. is being closed.

15. Special Investigation Team (SIT), formed by Hon’ble SupremeCourt to further investigate certain Gujarat riot cases, vide theirletter dtd.03.02.2009 and reminder dtd. 28.04.2009 have askedfor equipment and recordings collected by the CBI. This is forinformation of NHRC and comments/ instructions, if any.

16. This is for the information of NHRC and necessary action attheir end please against High Court order.”

(q) Meanwhile, the SIT appointed by this Hon’ble Court, whosemandate of investigation was extended, to also investigate the widerconspiracy into the violence that rocked the State of Gujarat in 2002,recorded the statement of Mr. Ashish Khaitan on 27.8.2009, the reporterwho carried out the Sting Operation.

A(r) In parallel development that further gives authenticity andlegitimacy to the Sting Operation, Mr. Ashish Khaitan deposed asprosecution witness (PW-322) in the Naroda Patiya case on 19.12.2011.On 29.8.2012, in its judgement convicting 31 persons of the widespreadmassacre at Naroda Patiya, the Special Sessions Judge made strongobservations accepting the Sting Operation as corroborative evidence.BOn the basis of this validation, two persons were convicted in this case.

(s) Notably, the SIT appointed by this Hon’ble Court whoinvestigated the Zakia Jafri complaint dated 8.6.2006 was/is also theprosecuting agency in the trials transferred to the SIT for furtherinvestigation including the Naroda Patiya and Naroda Gaam trial. It is,therefore, inexplicable and clear evidence of the compromised nature ofthe SIT investigation despite being the agency entrusted with sensitivetask by this Court, who failed to thoroughly investigate the leads andimplications laid out in the conversations/extra-judicial confessionsrevealed in Tehelka Sting Operation.

(t) It has been urged that relevant facts noticeable from thetranscript of the Sting Operation regarding manufacture of arms andbombs, bringing in the same from neighbouring States and other aspectsof wider conspiracy elucidated therein, have been completely ignoredby the SIT and also by the Courts. The transcripts also reveal theEinvolvement of senior officers of the Court, Advocates and publicprosecutors, whose names are mentioned in the SIB messages in thebuild-up and communal mobilizations and reportedly involved in theintimidation and browbeating of senior serving officer (Mr. R.B.Sreekumar) prior to his deposition before the Nanavati-Shah Commission.It was, therefore, essential that the Magistrate should have directed furtherFinvestigation into these aspects.

(u) The original complaint submitted by appellant - Zakia AhsanJafri relies on slew of 23,000 pages of official record and non-officialdocuments and records indicative of inaction/failure of public servantsand elected representatives bordering on carefully woven conspiracy.

(v) There was message indicating stockpiling of arms and alsomob-gathering with impunity from the early morning of 28.2.2002 whenthe dead bodies were brought to Sola Civil Hospital, Ahmedabad andbreaking out of violence. However, no police force was deputed.Aftermath violence, there was no response from the fire brigade despite

45 distress calls being made by hapless citizens, who were attacked byarmed mob intending to kill and burn them. No arrests were made of theaggressors, much less preventive arrests.

(w) The loss of life in such mass violence was mainly of personsbelonging to minority community. The unruly mob was emboldenedbecause of the Bandh call supported by the State. The women andchildren were also not spared during such violence and the police remaineda silent spectator.

(x) After the outbreak of violence post-Godhra, SIB report(s)submitted by Mr. R.B. Sreekumar dated 24.2.2002, 15.6.2002, 20.8.2002and 28.8.2002 to the Home Department were deliberately ignored. Thesereports had suggested strong corrective measures for restoration ofnormalcy.

(y) Even the report submitted by Mr. E. Radhakrishnan, an IPSofficer (the then Deputy IG) to the Director General of Police, as late asAugust, 2002, recommending remedial measures, was not acted upondespite the spread of communal violence reported from 993 villages and151 towns covering 284 police stations (out of 464 police stations) spreadover to 154 Assembly constituencies out of 182 Assembly constituencies.

(z) The statements made by Mr. Maniram, ADGP (Law andOrder), Mr. P.C. Pande, the then Commissioner of Police, Ahmedabad,Mr. K. Chakravarthi, Director General of Police, Gujarat and Mr. AshokNarayan, Additional Chief Secretary (Home), reveal the deliberateinaction and failure of the high officials and elected representatives. Toaggravate the situation, there was intentional delay in deployment ofArmy and declaring curfew at the earliest opportunity.

(aa) The SIT has also not enquired into the matters highlighted inthe report of NHRC nor made any attempt to record any statement ofofficials or the Chairperson of the Commission. The NHRC report refersto several aspects including experience of sitting Judge of the HighCourt owing to the violent mob entering his premises. The Statement ofthe Judge had not been recorded by the SIT.

(bb) The Courts have also failed to deal with the material regardingprovocative behaviour followed by mass mobilizations and hate speechespost 27.2.2002 as part of the wider conspiracy. The SIB officer hadcommunicated to the headquarters as early as 12:30 pm, on that dayitself, that there were reports that some dead bodies of Godhra victims

Awould be brought to Kalupur Railway Station, Ahmedabad, which mayresult in causing communal disturbance all across. Despite such warning,neither the Home Department nor the law-and-order machinery tookpreventive measures to protect the innocent lives and more so, evenafter growing violence and murderous attacks at Vadodara and Anandhappening by the evening and spreading across the State. On the otherBhand, no action had been taken against VHP office bearers for issuingpress release exaggerating the accounts of Godhra incident.

(cc) It was urged that the final (closure) report was erroneouslytendered by the SIT before the Metropolitan Magistrate and not in thesessions trial concerning Gulberg Society case being CR No. 67/2002.C

(dd) The SIT also failed to thoroughly investigate the messagesof the SIB, which formed part of the affidavit of Mr. R.B. Sreekumar,and was made available to the SIT. The contents of these messagessupport the allegation of build-up of conspiracy even prior to 27.2.2002,in respect of which no corrective steps had been taken by theDadministration and persons in authority.

(ee) There was enough material with the SIT regarding the factumof hasty post-mortems carried out on the dead bodies in open Railwayyard under the directions from the highest authority, so as to igniteemotions giving fillip/impetus to build up and cause communal disturbancesEand widespread violence. Not only that, the charred bodies of dead personswere caused to be paraded and allowed to be taken by private person(VHP office bearer) in open vehicles from Godhra to Ahmedabad withoutobserving essential protocols for the same purpose. Relying on Rule 223in the Gujarat Police Manual, it was urged that despite the prohibition,Fthe photographs of mutilated bodies were taken and no enquiry in thatregard has been made. None of the statements recorded by the SITexplain as to why such photographs were allowed.

(ff) There is contradiction in two different reports submitted bythe SIT before this Court and support the allegation of preparation forGorganising widespread violence after Godhra event.

(gg) The authorities produced the relevant contemporaneousofficial record after lapse of almost nine years, although it was verymuch available with the Government even earlier when it was requiredto produce before the concerned forum. That was not done on thespecious plea of non-availability of such record.H

(hh) No investigation has been done regarding the factum ofintentional delay in imposing curfew and to bring in Army including forits immediate deployment by providing logistical assistance to controlthe overwhelming situation across the State of Gujarat, in particular,immediately after the carnage in the morning of 27.2.2002 at Godhra.

(ii) The SIT has not properly dealt with the role of Mr. M.K.Tandon and his acts of commissions and omissions warranting penalaction.

(jj) There was enough material to suggest that the policeadministration was under complete control of political heavyweights andMinisters under instructions from the top (Chief Minister). That wasevident from the presence of the Ministers in the police Control Roomand issuing directions to the local police.

(kk) According to the appellant, the facts emerging from thematerials referred to in the protest petition are so telling that no otherinference except that the named persons had committed offence, canbe drawn, particularly regarding larger conspiracy. In that, no preventivemeasures were taken either before the episode of Godhra on 27.2.2002,or even thereafter, despite the seriousness and sensitivity of the situation.No preventive arrests were made and if at all done in two cases, it wasagainst the persons belonging to minority community. Further, when theviolence erupted across the State, no effort to douse the emotions of theviolent mob was seen to be taken by the persons in authority, both bypolitical dispensation and bureaucracy and police. The persons indulgingin the gruesome activity were not arrested, much less stopped fromdoing so. Furthermore, when it came to investigation, ‘A’ SummaryReport(s) came to be filed in most of the cases, which was clearreflection on the failure of police administration, investigating suchhorrendous crime. Intriguingly, the persons who were arrested by thelocal police, were released on bail or interim bail obviously because ofthe (intentional) lackadaisical approach of the public prosecutor(s). Notonly that, the investigating machinery opted to accept the version of theoffender as gospel truth and doubted the statements of the victims ofcrime. The malice not only pervaded in the local police, but also in themanner of investigation by the Court appointed SIT. No investigationwhatsoever has been done regarding pre-Godhra incident conspiracy,carrying funeral procession on the basis of instructions to officials andhanding over dead bodies for that purpose to private persons (Hasmukh

APatel, Secretary of the Eastern Wing of VHP, Ahmedabad and JaideepPatel, Gujarat Secretary of VHP, Naroda Gao/Gaam, Ahmedabad)including issuing instructions from the top (Chief Minister) to all theofficials to give free hand to the mob. Even post Godhra incident,conspiracy before the unfolding of the violence across the State on28.2.2002 has not been taken note of nor any FIR registered in thatBbehalf, much less any investigation done by local police or for that matter,Court appointed SIT.

(ll) The SIT, as well as, the Courts have dealt with statements ofthe concerned persons recorded by the SIT as gospel truth and havearrived at conclusion on that basis. This, amongst others, is manifestCerror committed in dealing with the issues on hand. The Magistrate whiledealing with the protest petition and the final report ought to have appliedthe scale of strong suspicion emanating from the materials collected bythe SIT. And that was enough to proceed against the perpetrators. Fromthe undisputed document(s), even layman would be able to decipherDthat case of strong suspicion about the involvement of the named personsin the commission of offence has been clearly made out. Reliance isplaced on State of Bihar vs. Ramesh Singh[41] and State (Delhi Admn.)vs. I.K. Nangia & Anr.[42]to urge that if suspicion can be deduced fromthe record, that would be enough for Magistrate to take cognizance. It isfurther urged that even if it is not case of strong suspicion, the MagistrateEwas obliged to direct the SIT to do further investigation on relevantaspects/allegations including in respect of matters outside the complaint,but specifically noted in the protest petition. It was the bounden duty ofthe Magistrate to so direct, and also primary responsibility of the SIT toinvestigate every piece of information which had come to the fore byFway of complaint or the protest petition.

(mm) It is submitted that the larger conspiracy material was notinvestigated in Gulberg Society case being CR No. 67/2002 and for thatreason, it was essential to investigate every aspect regarding largerconspiracy.G(nn) It is submitted that the stand taken by the SIT on the basis ofmaterial collated during investigation, in no way indicated that massviolence had triggered till 1.00 p.m. on 28.2.2002. This stand is in conflict

41 (1977) 4 SCC 39H42 (1980) 1 SCC 258 (para 6)

with the fact of sending requisition to call for Army at about 2.30 p.m. on28.2.2002. This is clear reflection on the approach of the SIT toobfuscate the enquiry.

(oo) The approach of the SIT to record the statements of personsnamed as offenders and to accept explanation given by them to form itsopinion thereby exculpate those persons is ex-facie fallacious. For, theexplanation offered by the offenders would be matter of their defencein the trial. The material indicating their complicity cannot be disregardedand veracity thereof could be tested only during the trial. Notably, noteven single statement of victim has been recorded by the SIT.

(pp) As matter of fact, neither the local police nor the SIT hasundertaken the task as is exposited by the expression “investigation”, asdefined in Section 2(h) of the Code. The expression “investigation” alsomeans finding out footprint of the statement/allegation, which is toundertake the meaningful investigation in respect of every singular aspect.The SIT has not maintained the purity in investigation and failed toinvestigate crucial aspects warranting further investigation.

(qq) The officers, who collaborated in the conspiracy, wereeventually rehabilitated to high positions and those who did not do so,were persecuted by the concerned administration.

(rr) There was glaring evidence regarding the fact that even firebrigade facility was consciously denied to the persons belonging to theminority community. The frantic phone calls made by them were noteven attended to, despite the emergent situation faced by them. The SITmade no effort to enquire into this factual allegation and did not call forexplanation of concerned officials of fire brigade.

(ss) There was no adequate police bandobast laid in anticipationnor stern measures taken when the actual violence took place on 28.2.2002across the State. This was not mere case of laxity or failure of thepolice administration, but concerted effort under instructions from thetop, when in fact, their public duty was to protect the life and property ofeveryone. The situation was aggravated because of the State support tothe bandh call given by the agitators. The SIT made no attempt toinvestigate these allegations forthcoming from the record before it. Therewas material to indicate that the official record had been destroyed undersuspicious circumstances.

A(tt) Reliance has been placed on Firozuddin Basheeruddin &Ors. vs. State of Kerala[43], Nirmal Singh Kahlon vs. State of Punjab& Ors.[44], R. Venkatkrishnan vs. Central Bureau of Investigation[45]and State (NCT Delhi) vs. Shiv Charan Bansal & Ors.[46].

(uu) The SIT has not enquired into the false propaganda for incitingBviolence and the publication in that behalf, despite the SIT having receivedsaid documents.

(vv) Reliance is placed on State of Karnataka & Anr. vs. Dr.Praveen Bhai Thogadia[47]and Amish Devgan vs. Union of India &Ors.[48]to contend that incitement to violence is punishable offence.

(ww) The SIT has not enquired into the evidence regarding hatespeech. Regarding hate materials, the material on record was glaring.That included false reporting by regional media outlets like Sandesh on28.2.2002, claiming 10-15 Hindu women being dragged away from theRailway compartment (at Godhra) by fanatic mob. The Gujarat policeDhad denied any such incident having been taken place. However, noaction has been taken against the publisher or the reporter. The samenewspaper had reported on 1.3.2002 on the front page with prominentheading that dead bodies of the kidnapped young women from SabarmatiExpress have been recovered with their breasts chopped off and thatGujarat is aflame because of Muslim fundamentalists. These canardsEhave been tolerated by the concerned administration unabated, therebyfuelling the emotions and hatred between the two communities. Thiswas despite the reporting by the SIB headed by Mr. R.B. Sreekumarrecommending prosecution for provocative lines by the VHP in publicationand anonymous pamphlets. Even the then ACS (Home) – Mr. AshokFNarayan had admitted in his statement to the SIT that this matter hadbeen brought to the notice of the State Government, but no action wasever taken. Similarly, the then Commissioner of Police, Vadodara –Mr. D.D. Tuteja had recommended action against Sandesh newspaperin 2002, so also, Mr. Rahul Sharma, an IPS officer and the then (in 2002)S.P., Bhavnagar sought permission to register criminal case againstG

43 (2001) 7 SCC 596 (paras 20, 23 and 25)44 (2009) 1 SCC 441 (paras 67 and 68)45 (2009) 11 SCC 737

46 (2020) 2 SCC 290

47 (2004) 4 SCC 684 (paras 7 and 8)

48 (2021) 1 SCC 1 (paras 20, 37, 75, 87, 88, 103 and 107)

Sandesh newspaper. Even the SIB through Mr. P.B. Upadhyaya, thethen DCP (Intelligence) had sought sanction for prosecution of Sandeshnewspaper, as recommended by Mr. Rahul Sharma. There is also materialto indicate that CCT had highlighted the pretentious writing andpropaganda disseminated by VHP and also widely reported in “TheExpress” on 24[th] March, allegedly circulated by the Bajrang Dal President– Hastimal, who is said to have been arrested. The theme of suchpublication was: “Don’t purchase anything from Muslim shops, don’ttravel in their vehicles or visit their garages; don’t watch films whichfeature Muslim stars. In this way, we can break their financial backbone”.According to the appellant, the SIT has chosen to turn complete blindeye to this official documentary material and other material on record,despite the fact that publication of such material constitutes offence inlaw, warranting investigation and appropriate action. This coupled withthe sting operation, clearly establishes the existence of larger conspiracy.

(xx) The Courts have failed to analyse the opinion of the SITfounded on the undisputed material indicative of prelude and build-upbefore 27.2.2002 in the form of hate speeches and mobilisation all overGujarat on 27.2.2002, the inaction of political/police/bureaucratfunctionaries despite the serious episode of Godhra in the morning of27.2.2002 and also their inaction after outbreak of violence on 28.2.2002,not taking preventive measures, deploying the adequate police force, noprompt arrests, no curfew declared and delay in calling the Army. Theconspiracy was at different levels and at different timelines having causalconnection with the violence across the State on and from 28.2.2002, inparticular.

(yy) According to the appellant, hate speeches all across werepart and parcel of incitement to targeted violence and systemicconspiracy. The authorities allowed hate speeches unchecked andunprosecuted to promote hatred amongst the two communities.Moreover, in furtherance of pre-hatched conspiracy, large body ofarmed and aggressive groups of people took to the street for takingrevenge owing to tragic killings at Godhra. The hate speeches were inthe form of statements of prominent political leaders before and after27.2.2002, regional (vernacular) media/press published in Gujarat andpamphlets with incendiary content by right wing organisations acrossthe State. No preventive action nor any arrest or prosecution wasdeliberately effected, despite such concerted effort. The Courts have

Anot adverted to this grievance of the appellant at all. The SIT investigatedissue of hate speech as an independent head concerning the speechesof the former Chief Minister of Gujarat and has glossed over plethora ofhate writings and speeches of prominent personalities, especially thosebelonging to the VHP. The SIT has failed to reckon the issues noted inthe protest petition concerning hate speeches/writings and moreBparticularly, the failure of the State Government to take prompt action inthat regard.

(zz) It is urged that the SIT has not named any person referred toin the complaint dated 8.6.2006 and the protest petition except BabuBajrangi, who has been prosecuted in Naroda Patia (Ahmedabad City)Ccarnage case. None of the other persons have been named in any of thehate speech cases investigated by the SIT. The SIT could not haveaccepted the version of the persons disregarding overwhelming materialindicative of their complicity. In such case, it would be triable issue.

(aaa) The appellant in fact relies on SIT record in support of theDprayer for further investigation, at least in respect of the following matters:-

(i)Failure of administration, touching upon collaboration andconspiracy.

(ii)The State administration indulged in destroying the criticalrecord.E

(iii) Handing over bodies to Hasmukh Patel and Jaideep Patel.

(iv) Post-mortems carried out in open at Railway yard.

(v)Parading of bodies/Funeral procession and mob attacks.

F(vi) Delayed imposition of curfew and calling Army.

(vii) Bandh call officially supported.

(viii) Partisan public prosecutor.

(ix) NHRC case and related cases related to Gujarat Carnage,2002.G

(x)Subversion of the Criminal Justice System that included (a)Manipulation of Investigation from the start: doctoring of FIRs,ensuring powerful offenders were not named, the narrativewas manipulated and twisted to show the victim minoritycommunity as aggressor and perpetrator;H

(b) ensuring easy bail for those among the perpetratorswho were arrested; and

(c) appointing Public Prosecutors who had dual identityi.e., those who were pro-active members of organisationslike the Vishwa Hindu Parishad, Bajrang Dal andRashtriya Swayamsevak Sangh (RSS).

(bbb) The SIT, for reasons best known to it, followed irregularprocedure of taking initials of the persons whose statements were beingrecorded despite bar under Section 162 of the Code. The SIT made noattempt to seize the mobile and obtain call records of the relevant party.Moreover, no public notice was issued by the SIT after the complaintdated 8.6.2006 was made over to it by this Court in terms of order dated27.4.2009[49]. If such public notice was to be issued, as was done aftertaking over investigation of nine cases pursuant to order dated 26.3.2008[50],many of the family members of the victims or the victims themselveswould have come forward and handed over more material to the SITconcerning the allegation of larger conspiracy.

(ccc) The SIT chose to rely on the extracts in the report of theState appointed Commission (Nanavati-Shah Commission), despite theclear legal mandate that the same cannot be used as evidence in civiland criminal action, as expounded in Shri Ram Krishna Dalmia vs.Shri Justice S.R. Tendolkar & Ors.[51]and Kehar Singh & Ors. vs.State (Delhi Administration)[52]. At the same time, relying on the decisionof the Full Bench of the High Court of Judicature at Madras in AbdulSathar vs. The Principal Secretary to Government[53], it is urged thatthe State Government is expected to act upon the recommendationsmade by the NHRC unless for non-acceptance it provides reasons. TheNHRC in its report in the present case, made certain recommendations.Further, there was tangible material in the form of report of the Committeeon Empowerment of Women[54], report of constitutional authority, suchas the Election Commission of India confirming the allegations made inthe protest petition, which have not been investigated at all.

49 supra at footnote Nos. 4 and 17

50 supra at footnote Nos. 6 and 16

51 1959 SCR 279 (para 9)

52 (1988) 3 SCC 609 (paras 36 to 41)

53 W.P. No. 41791/2006 (with connected cases) decided on 5.2.2021

54 Ninth Report of the Committee on Empowerment of Women (2002-2003) concerningviolence against women during riots (July-August 2002)

A(ddd) Reliance is placed on Zahira Habibulla H. Sheikh &Anr. vs. State of Gujarat & Ors.[55], Zahira Habibulla Sheikh (5) &Anr. vs. State of Gujarat & Ors.[56]and Dayal Singh & Ors. vs. Stateof Uttaranchal[57].

(eee) Further, the SIT has not enquired into the evidence in theBform of statement of Mr. Dileep Trivedi, Public Prosecutor regardinginstructions issued for providing Advocate to accused belonging to aparticular community, indicative of the bias in favour of that communityand being party to the conspiracy.

(fff) The Standard Operating Procedure given in the Gujarat PoliceCManual, such as Rules 45, 46 and 53 therein, has not been followed in itsletter and spirit.

(ggg) The statement of Mrs. Jayanti S. Ravi, District Magistrate,Godhra is not consistent with the official record, which was certainly amatter creating suspicion about the correctness of the statement so made.

D(hhh) The SIT had failed to seize the mobile phone of Mr.Hasmukh Patel and Mr. Jaideep Patel, which could have unravelled thetruth about their involvement. Mr. Jaideep Patel is the same person whohad made revelation to the Press on the same day i.e., 27.2.2002.

(iii) The telephonic call records produced by Mr. Rahul SharmaEhave also not been investigated. The statement of Rahul Sharma dated2.7.2009 to SIT was clinching to establish the plea regarding call records,which SIT discarded on the specious ground that the same was producedfor the first time in 2008. The Additional Commissioner of Police, CrimeBranch, Ahmedabad – A.K. Surolia, has also stated in his statementbefore the SIT that it was he who had instructed ACP, Crime Branch –FS.S. Chudasama to extract the relevant call details from the relevantcellular service providers – M/s. AT&T and M/s. Cellforce. This hasnot been investigated by the SIT. The call records given to Mr. P.C.Pande, the then Commissioner of Police, Ahmedabad have also not beenanalysed. The call records would show that Mr. Haresh Bhatt was inGconstant touch with the doctors from outside the Godhra city, after whichpost mortems of the Godhra victims were carried out in open in the

55 (2004) 4 SCC 158 (paras 2, 5, 7, 10, 18, 30, 31, 33, 35, 36, 39, 40, 52, 60, 61, 68, 71and 75)

56 (2006) 3 SCC 374 (paras 4, 5 and 9)

H57 (2012) 8 SCC 263 (paras 1, 21, 22, 25 to 28, 32 and 47.5)

Railway yard. The call records also indicated that Mr. Shivanand Jha,the then Additional Commissioner of Police, Sector 1, Ahmedabad Citywas part of the larger conspiracy, which is clear from his 68 phone callsmade on 27.2.2002 either owned by politicians or officials (unofficially)and 192 calls on 28.2.2002 including to then Power Minister, State ofGujarat – Mr. Kaushik Jamnadas Patel (an MLA elected from his area)and another elected representative – Dr. Maya Kodnani, who has beennamed as accused in another case and convicted by the trial Court. Thecall records also pertain to Mr. Dinesh Togadia and Dr. Praveen Togadia,officer bearers of VHP. All these call records have remaineduninvestigated.

(jjj) No explanation is forthcoming from the SIT as to why callrecord was not procured between 2008 and 2010. This is significant asthe SIT was directed to “look into” the complaint dated 8.6.2006 videorder dated 27.4.2009[58] and the SIT had submitted its final report to thisCourt in September, 2011.

(kkk) The SIT had made no effort to enquire into the fact thatfollowing the Godhra incident the massacre followed in Deepda Darwaza,which case was also assigned to SIT by this Court. Even that incidentwas part of larger conspiracy, which has remained to be dealt with inthe concerned trial in right perspective.

(lll) The SIT could have also taken notice of Private CitizensCommission headed by former Supreme Court Judges regarding humanrights violation and the contents of the said report indicative of highofficials of the State being party to conspiracy in commission of crime.

(mmm) It is urged that need to direct further investigation can besubstantiated on the basis of undisputed facts emerging from the materials/statements collated by the SIT.

(nnn) In cases of allegation regarding larger conspiracy, therecould be no direct evidence. That is matter to be investigated andinferred on the basis of the material pointing out towards suchcircumstances. Reliance is placed on Nazir Khan & Ors. vs. State ofDelhi[59]. There is no investigation whatsoever regarding existence ofconspiracy despite the same being revealed from Tehelka Tape itself.

58 supra at footnote Nos. 4 and 17

59 (2003) 8 SCC 461 (paras 16 to 22)

AReliance is also placed on Firozuddin Basheeruddin[60] and NirmalSingh Kahlon[61] to contend that even the second FIR is permissible ifthe evidence regarding conspiracy surfaces after registration of the firstFIR. Further, acceptance of final report submitted by the investigatingofficer is no impediment for enquiring into fresh material brought to thenotice of the investigating officer or the Court, if warrants takingBcognizance.

(ooo) The SIT has not offered any remark regarding the statementof Mr. Bharat Bhatt, Special Public Prosecutor and Mr. Deepak Shah,who were questioned by the SIT for reasons best known to it.

C(ppp) It is urged that appellant – Zakia Ahsan Jafri had appearedas prosecution witness (PW-337) in Gulberg Society case being CR No.67/2002 and not as complainant. Whereas, in the present action,appellant – Zakia Ahsan Jafri was prosecuting the matter as complainant.

(qqq) The appellant has also explained as to how the error hasDbeen committed in mentioning the name of Mr. Rahul Sharma and SatishVerma as offender Nos. 45 and 63 respectively, though they were citedas witnesses in support of the allegations made in the complaint andprotest petition. That was also explained to the SIT at the earliestopportunity.

E(rrr) It is urged that undue reference was made about the adverseobservations recorded against Ms. Teesta Setalvad by the Court. Thatwas wholly inappropriate. For, the stated adverse remarks came to beexpunged by this Court in Testa Setalvad & Anr. vs. State of Gujarat& Ors.[62]. Reliance was placed on some proceedings for similar purposeagainst Mr. R.B. Sreekumar. Those proceedings are still pending andFwill be of no avail to SIT. One of the reasons weighed with the SIT todiscard the statement of Mr. R.B. Sreekumar was, therefore, untenableon the face of it because the correspondence pertains to period muchbefore Mr. R.B. Sreekumar had raised issues regarding violation of hisservice conditions with the department.

G(sss) The SIT had filed material alongwith final report consistingof (i) documentary evidence (officially received), (ii) documentaryevidence otherwise collected by the SIT, (iii) video-audio recordings of

60 supra at footnote No. 43

61 supra at Footnote No. 44

H62 (2004) 10 SCC 88 (paras 4 and 7)

sting operation authenticated at the instance of the NHRC by the CBIand relied upon by the SIT in various prosecutions, (iv) extra judicialconfessions evidenced by the sting operation and (v) witness statementsin respect of individuals in relation to the events that took place prior toFebruary 27, 2002 until order of this Court dated 12.9.2011[63]. TheMagistrate was obliged to examine the voluminous documentary andother evidence to ascertain whether some matters raise strong suspicionof offences having been committed, being sufficient reason to issuedirection to the SIT to further investigate the same, even if it was not acase of taking cognizance straightaway. Reliance is placed on AfrozMohammed Hasanfatta[64] and S.K. Sinha[65].(ttt) The appellant was relying on undisputed documents availablein the SIT record, which alone were sufficient to issue summons foralleged offences, as it clearly indicated the complicity of the personsnamed in the complaint/protest petition and in any case, raised strongsuspicion about the commission of such offence. The reports of Mr.R.B. Sreekumar to the Government between April and August, 2022,constitute official documentary evidence, which the SIT has disregarded.That being the substantive evidence, was required to be reckoned by theSIT.

(uuu) The Courts cannot adopt the approach of forgive and forget,but it is the solemn duty of this Court to ensure that all guilty are broughtto book and prosecuted in accordance with law. He would submit that: -

“The Republic is like shop… that ship has to be made steady. Itis your task to keep the Republic steady. It would be steady onlyif majesty of law prevails. This is case where the majesty oflaw has been deeply injured… Despite actionable evidence thecourt has chosen not to look at it and misread the order of SC. Inthis case violence has been perpetrated through design which isreflected in the documents… I leave it then to your lordship todecide.”

(vvv) It is submitted that it would be different matter if theCourt feels that the material on record did not raise any suspicion.

63 supra at footnote No. 26

64 supra at footnote No. 31

65 supra at footnote No. 39

A(www) In the backdrop of the stand taken before us in respect ofallegation Nos. (i) and (iv) articulated in the final report dated 8.2.2012,at the time of conclusion of the hearing, we requested the learned seniorcounsel for the appellant to submit written statement in that regard, whichhe submitted after the case was adjourned for pronouncement of verdict,in the following words: -

“STATEMENT OF THE PETITIONER QUA LARGERCONSPIRACY

The Petitioner has made her submissions based on undisputedevidence in the form of Tehelka tapes and official communicationsof public functionaries. The Petitioner has not sought to allegeany wrongdoing, criminal or otherwise, with reference to factsthat are disputed. The Petitioner contends that larger conspiracyinvolving individuals whose undisputed extra-judicial confessionsare on tape, read along with inactions of officials demonstratedby undisputed documents, should have been investigated by theSIT, which could have established larger conspiracy. Thesubmission is that the SIT did not investigate the larger conspiracy,but limited itself to matters in dispute relating to meeting ofFebruary 27, 2002. Qua that meeting, the SIT has come to certainconclusion which is part of the closure report. Since thePetitioner has not made any submissions on disputed facts,the Petitioner did not contend before this Hon’ble Courtthat larger conspiracy emanated from the meeting ofFebruary 27, 2002. In fact, during the course of submissions, noreference was made by the Petitioner to this meeting at all. Theundisputed evidence on record points to larger conspiracywhich appears to have involved bureaucrats, politicians,public prosecutors, VHP, RSS, Bajrang Dal and membersof the State political establishment. It is this conspiracy thatis not investigated by the SIT. The extent of the conspiracy,the identity and number of individuals involved, the preparatoryacts committed and the time, place and manner in which the meetingof minds for purposes of such conspiracy took place can onlyfully emerge on investigation and is not something that the Petitionercan be called upon to provide answers to.”

(emphasis supplied)

SUBMISSIONS OF THE RESPONDENT – SIT

7. (a) The thrust of the argument of the respondent-SIT, is that,after directions given by this Court vide order dated 27.4.2009[66] to “lookinto” the written complaint of appellant, it immediately moved into actionand did everything that it could do to investigate every singular allegationnoted in the complaint. The SIT could cull out thirty broad allegations inthe complaint made over to it for investigation. In addition to those thirtyallegations, the SIT also investigated into two additional allegationsincluding the comments/observations of the Amicus Curiae in referenceto the final report presented to this Court, and recorded its opinion in thatregard in the final report submitted to the Magistrate. The SIT left nostone unturned and thoroughly investigated all aspects of the matter[67],as also, exhaustively analysed every piece of information/materialcollected by it during the investigation by recording statements of 375persons and questioning 275 persons in terms of the direction given bythis Court.

(b) The final report besides dealing with each of these 32 (thirty-two) allegations exhaustively, has also separately dealt with the caseagainst each of the 63 persons named as offenders in the complaintdated 8.6.2006. As aforesaid, the final report submitted to the Magistratealso reproduces the observations of the Amicus Curiae and deals withevery aspect thereof to form its opinion that no offence is made out,much less having been committed by the offenders named in thecomplaint. It is urged that the investigating agency is entitled to form itsopinion dependent on the legally admissible evidence/material collatedduring investigation. Further, the SIT had to investigate within the remitgiven to it by this Court. In that, vide order dated 27.4.2009[68], this Courtdirected the SIT appointed by it to only “look into” the complaint dated8.6.2006 of appellant – Zakia Ahsan Jafri. No direction was given to theSIT to register it as FIR. Notably, this Court consciously adopted such acourse - despite the main prayer of appellant – Zakia Ahsan Jafri toregister her complaint as FIR and to get the same investigated through

66 supra at footnote Nos. 4 and 17

67 including by recording statements of 66 witnesses during preliminary enquiry between

19 June, 2009 – 18 December, 2009, 120 witnesses during preliminary enquiry between12 January, 2010 – 23 December, 2010, 76 witnesses during further investigationbetween 14[th] August, 2010 – 10[th] November, 2010 and 145 witnesses during furtherinvestigation 23[rd] November, 2010 till 13[th] January, 2012

68 supra at footnote Nos. 4 and 17

Aan independent agency. Not only that, upon submission of the final reportby the SIT, the appeal filed by the appellant [SLP(Crl.) No. 1088/2008]was disposed of and the SIT was directed to submit appropriate reportbefore the Magistrate taking cognizance in the Gulberg Society casebeing CR No. 67/2002. This is despite the fact that the trial of the saidcase had progressed before the Sessions Court after filing of the lastBsupplementary chargesheet on 12.8.2009. The trial of the said case,thus, continued under the directions of this Court including dated 6.5.2010.In that sense, this Court adopted sui generis procedure which was notin strict consonance with the procedure predicated under the Code.Resultantly, the SIT was bound to strictly follow the directions of thisCCourt in every aspect without exception. And that, the SIT had fairlydischarged its role to the satisfaction of this Court, as noticed from theorders dated 1.5.2009[69], 12.9.2011[70] and as recently as, 13.4.2017.(c) In the writ petition filed before the High Court, relief claimedwas not for assigning investigation of complaint dated 8.6.2006 to theDSIT (appointed by this Court in connection with nine major cases whichincluded Gulberg Society case being CR No. 67/2002), but to anindependent investigation agency. That prayer, obviously, stood rejectedby the High Court and even by this Court consequent to direction issuedon 27.4.2009[71] in the special leave petition filed by the appellant, directingthe SIT to only have look at the complaint.E

(d) It is urged that this Court even vide order dated 12.9.2011[72],did not direct registration of the complaint dated 8.6.2006 as FIR. It onlycalled upon the SIT to take necessary follow-up steps. The complaintdated 8.6.2006, in one sense, was regarded by the SIT as furtherinformation in relation to the Gulberg Society case being CR No.F67/2002, investigation and trial whereof was allowed to proceed by thisCourt at the same time. The last supplementary chargesheet in thatcase came to be filed as back as on 12.8.2009.

(e) The remit of the SIT, in terms of the directions issued by thisCourt from time to time was only to examine whether the material referredGto in the complaint discloses commission of any offence of largerconspiracy at the highest level and involvement of any person other than

69 supra at footnote No. 18

70 supra at footnote No. 26

71 supra at footnote Nos. 4 and 17

H72 supra at footnote No. 26

the accused persons named in CR No. 67/2002 concerning GulbergSociety. That being the remit of the SIT, it could not have investigatedinto any other aspect without an express direction of this Court. This isalso for the reason that the allegation of conspiracy at the local level hadalready been investigated into in all other cases registered at the relevanttime, around 2000 in number, including the nine major cases assigned tothe Supreme Court appointed SIT. The allegations which are made inthe complaint are based essentially on the record/affidavits of the officialsof the State, filed before the Nanavati-Shah Commission.

(f) Additionally, the direction given by this Court on 12.9.2011[73] inthe special leave petition filed by the appellant, would not only bind theSIT and the Magistrate dealing with the final report, but also the appellantherein. No liberty was sought or had been given by this Court to theappellant to make fresh allegations beyond the allegations noted in thecomplaint dated 8.6.2006 and already investigated by the SIT in termsof order dated 12.8.2009. As matter of fact, appellant – Zakia AhsanJafri being the complainant could have availed of the remedy under Section190 of the Code by presenting complaint before the competentMagistrate, as observed by the High Court vide order dated 2.11.2007.She did not avail of that remedy. Instead, the appellant approached thisCourt by way of SLP(Crl.) No. 1088/2008 and submitted to andacquiesced of the directions issued by this Court from time to time.

(g) Significantly, in proceedings before this Court, Ms. TeestaSetalvad had assisted the Amicus Curiae appointed by this Court andpresumably also for articulating the observations in the note submittedby him to this Court and to which the SIT had duly responded and dealtwith in the final report presented before the Metropolitan Magistrate, interms of this Court’s order dated 12.9.2011[74]. Even the Magistrate wasbound by the remit applicable to the SIT in view of the sui generisprocedure adopted by this Court in treating the report of the SIT asfurther report under Section 173(8) of the Code (in the Gulberg Societycase being CR No. 67/2002) to be presented before the Magistratealongwith the statements recorded by the SIT, treating them as statementsunder Section 161 of the code in terms of order dated 7.2.2013.

(h) It is urged that the appellant has repeatedly changed thegoalpost with view to create confusion. Amongst others, the manner in

73 supra at footnote No. 26

74 supra at footnote No. 26

Awhich her complaint dated 8.6.2006 ought to proceed, despite the crystal-clear order of this Court. Further, for the first time, it is now urged thatthe same (complaint dated 8.6.2006) ought to be treated as privatecomplaint and proceeded with by the Magistrate under Section 190 ofthe Code.

B(i) It is urged that the argument of the appellant to treat the protestpetition as private complaint, is one of desperation and in any case,untenable in light of the express direction given by this Court to the SITto submit its report to the Magistrate taking cognizance of CR No.67/2002 being the Gulberg Society case - as further report under Section173(8) of the Code. If the report was to disclose commission of suchCoffence of larger conspiracy or abetment, as the case may be, the Courtcould have proceeded against the concerned persons and tried in sessionstrial arising from CR No. 67/2002 by framing requisite charge(s) in thatregard. Therefore, the complaint could neither be registered as FIR norcould be treated as private complaint in the wake of sui generis directionDgiven by this Court vide order dated 12.9.2011[75] in the special leavepetition preferred by the appellant. Reliance has been placed on VishnuKumar Tiwari[76]

(j) It is urged that when the SIT called upon appellant – ZakiaAhsan Jafri to give her statement in connection with the complaint, sheEdeclined to do so and it has been so recorded in the opening part of thefinal report as well. She wanted the SIT to treat her complaint as FIRand register the same. Accepting this request would have been contraryto the spirit of the direction given by this Court (vide order dated27.4.2009[77]) to SIT, to only look into the complaint and to take furthersteps in that regard. Until the special leave petition filed by appellant –FZakia Ahsan Jafri was disposed by this Court on 12.9.2011[78], no requestwas made to this Court to clarify the position or for issuing directions toregister her complaint as FIR/complaint.

(k) Although in the rejoinder argument, the learned counsel forthe appellant had stated that he had never argued for treating theGcomplaint/protest petition of appellant – Zakia Ahsan Jafri as complaintunder Section 190 of the Code, it is noticed that clear stand has been

75 supra at footnote No. 26

76 supra at footnote No. 27 (paras 7, 17, 27, 32, 33 and 42)

77 supra at footnote Nos. 4 and 17

78 supra at footnote No. 26

taken in paragraph 5 of the written note being Convenience Compilation(Volume I) filed by the appellant in this regard. Further, in the protestpetition, fresh allegations have been made, which in any case cannot belinked to the allegation of larger conspiracy required to be investigatedby the SIT in terms of successive orders passed by this Court. Theattempt of the complainant was obviously to make wild and preposterousallegations and keep the pot boiling in the name of taking action againstnew offenders referred to in the protest petition while not pursuingallegation Nos. (i) and (iv) which had been thoroughly investigated bythe SIT and found to be devoid of substance. deceptive stand is takenthat the appellant would like to pursue the matter only on the basis ofundisputed material/documents - having realised that the basis on whichallegation Nos. (i) and (iv) came to be made, was figment of imaginationof the persons attributing certain utterances to the then Chief Minister tomake it sensational news. Significantly, SIT was entrusted withinvestigation of other crimes, which it completed to the satisfaction ofthis Court. In those cases, not even tittle of remark has been made bythe trial Court to trace it to the allegation of larger conspiracy. However,the appellant has highlighted unconnected matters (Deepda Darwazacase and Sardarpura case), in the guise of protest petition filed in GulbergSociety case.(l) Whereas, it had been understood by all concerned that the SITwas expected to investigate into the allegation regarding “largerconspiracy” to cause and precipitate mass violence across the State andnot the criminal conspiracy at the local level resulting in violence atGulberg Society, in respect of which CR No. 67/2002 had already beenregistered. In that, as regards the conspiracy to commit offence mentionedin CR No. 67/2002, that had already been investigated and chargesheetfiled, including supplementary chargesheets from time to time. It is notin dispute that even the trial Court, which dealt with the said crime, hadformulated the very first point for its determination on the basis of chargesframed against the accused named in the said trial being CR No.67/2002 - regarding pre-planned conspiracy to form an unlawful assemblyand thereafter perpetrate the carnage at Gulberg Society on 28.2.2002,which resulted in death of 69 persons and attempts to murder, causinggrave and serious injuries to residents of Gulberg Society and also causingdamage and destruction of vehicles and property thereat.

(m) Similarly, the allegation regarding events of mass violencespread across the State being State-sponsored crime had been made

Aeven in Bilkis Bano case and Best Bakery case and other cases includingeight other cases investigated by the SIT. Those allegations have beendealt with in the concerned cases. In other words, the complaint dated8.6.2006 submitted by appellant – Zakia Ahsan Jafri was to be lookedinto by the SIT in respect of allegation regarding larger conspiracy at thehighest level alone and not the conspiracy at the local (lower) level.B

(n) The appellant is now heavily relying on the following: -

(i) Tehelka tapes which surfaced in 2007;

(ii) The CDRs;

C(iii) The SIB messages;

(iv) The call for Gujarat Bandh;

(v) The “hate material”;

(vi) The handing over of dead bodies;

D(vii) Post mortem at the Railway station in open yard;

(viii) Presence of Ministers in the Control Room and DGP office;

(ix) Response of the fire brigade;

(x) PCR messages by Mr. Pande;

E(xi) Delay in curfew;

(xii) Delay in requisition of Army; and

(xiii) Partisan/prosecutors.

However, each of these issues were considered at great lengthFby this Court between 2008 and 2011 whilst monitoring the investigationdone by the SIT and culminating in final report. The findings of the SIThad also to pass through the strict scrutiny of the Amicus Curiae assistingthis Court, who was authorised to even interact with the witnessesexamined/questioned by the SIT. It would be, therefore, travesty of justiceand doubting the wisdom of this Court which had supervised/monitoredGthe investigation completed by the SIT on all aspects and being satisfiedpermitted the SIT to present the final report before the Magistrate. Theentirety of the material was presented before this Court by the SIT fromtime to time. The final report in question presented before the Magistrate,therefore, forecloses the enquiry concerning the allegations in complaintHdated 8.6.2006.

(o) According to the SIT, considering its remit, the Magistratewas also required to examine the final report on that basis and to satisfyabout the plausibility of the conclusions drawn by the SIT on the materialscollected by it. The Magistrate entered upon such exercise and appliedhis mind to the totality of the circumstances including by taking note ofthe issues raised in the protest petition and accepted the final reportbeing convinced that no case was made out for issuance of processagainst the named offenders or any other person.(p) As regards larger conspiracy, the allegation is mainly foundedon the affidavits/materials filed by the officials and others before theNanavati-Shah Commission appointed by the State of Gujarat under the1952 Act. The Commission, however, has dealt with every aspect of theaffidavit(s) filed by the concerned officials before it including the materialwhich also forms part of the complaint submitted by appellant – ZakiaAhsan Jafri. The opinion of the Commission in that regard is no differentthan the conclusions reached by the SIT. Notably, the Commissionsubmitted its report after the SIT had already filed its final report beforethe Magistrate.

(q) Indeed, the opinion of the SIT must conform to the materialdealt with by it in its report. In the present case, the final report of theSIT is exhaustive and deals with every singular aspect necessary toanswer the allegations made in the complaint - which is on the basis ofanalysis by the SIT by reckoning the material collected during theinvestigation. The analysis of the entire material by the SIT is not onlyallegation-wise, but named offender-wise including witness-wise andobjection/noting (wise) of the Amicus Curiae in response to the previousfurther report of the SIT submitted before this Court.

(r) The SIT has thoroughly analysed the allegations against eachoffender in the subject final report on the basis of material collected byit, as can be discerned from pages 363-364, 367, 370-385, 388-392 and395-397. Only after such thorough analysis, the SIT had opined that nooffence has been made out nor the stated offender can be said to beinvolved in the commission of offence of larger conspiracy.

(s) The complaint highlights the pattern of continual concertedlackadaisical approach of high officials of the State Government, whowere allegedly acting under dictation from the highest authority of theelected political dispensation. The theory of larger conspiracy is put forth

Amainly on the basis of alleged utterances of the then Chief Minister inthe meeting held soon after the ghastly incident of train burning in Godhraon 27.2.2002 and the subsequent official meeting on 28.2.2002 includingbefore the Press. The case made out in the complaint dated 8.6.2006 isthat the high officials followed the directions given by the then ChiefMinister and issued instructions to their subordinates to justify pre-Borchestrated mass carnage that enjoyed the political sanction of theconstitutionally elected Government in Gujarat. Hence, it was nothingshort of State sponsored violence against particular community.(t) The remit of the SIT was, therefore, to investigate the allegationsin the complaint, which it had done meticulously, as can be discernedCfrom the final report submitted by it running into about 231 closely typedpages (in the paper book of this Court, mentioned as pages 1 to 270 onthe cover page of the report filed), analysing every piece of material/evidence collated by it allegation-wise, offender-wise, as well as theobservations of the Amicus Curiae on the final report presented by theDSIT before this Court. The final report is the compendium of the previousreports submitted before this Court and the clarification of the SIT inrespect of observations of Amicus Curiae, point-wise. The permissiongiven by this Court in terms of order dated 12.9.2011[79] is seal of approvalof this Court about its satisfaction regarding the completion of fairinvestigation done by the SIT in respect of allegations contained inEcomplaint dated 8.6.2006. If there was even little doubt, this Court, asin the past, would have certainly directed the SIT to do further investigationin respect of left out matters. As noted earlier, Ms. Teesta Setalvad hadinteracted with the Amicus Curiae before he had submitted hisobservations by way of note to this Court and made over to the SIT.FAs all concerned had acted upon and accepted the sui generis procedurefollowed by this Court in dealing with the complaint dated 8.6.2006including regarding its investigation and directing presentation of anappropriate report before the Magistrate taking cognizance of CR No.67/2002 concerning the Gulberg Society in terms of order dated

12.9.2011[80], neither the SIT nor the Magistrate could travel beyond theGsaid remit. For the same reason, it would not be open to the complainant/informant/appellant to make fresh allegations, much less not connectedwith the larger conspiracy at the highest level, already investigated bythe SIT under the supervision of this Court.

79 supra at footnote No. 26H80 supra at footnote No. 26

(u) In any case, the emphasis placed by the appellant on mattersreferred to in the protest petition are in respect of unconnected eventsand not having direct or causal bearing on the allegation of largerconspiracy, particularly involving the political dispensation, as well as,the high officials, bureaucrats and police functionaries allegedly actingunder the dictation of the then Chief Minister. Notably, no submissionhas been advanced on the meeting held on 27.2.2002 under thechairmanship of the then Chief Minister or about the testimony ofMr. Sanjiv Bhatt, IPS, the then Superintendent of Police (Security), whofalsely claims to have attended the official meeting.

(v) As regards allegations regarding Ministers found sitting in thePolice Control Room and giving instructions to the officials, the SIT hasthoroughly examined the said allegation and after due enquiry, was ofthe opinion that the Ministers even though visited the Control Room,were to ascertain the developments and not for giving instructions, as isthe routine practice. No material has come on record to indicate that theMinisters had given specific direction one way or the other to thesubordinate officials, which may be regarded as case of largerconspiracy. Absent such evidence, mere fact that the Ministers had visitedthe Police Control Room would not take the matter any further, muchless to charge the offenders named in the complaint with any offence.(w) As regards the allegation that the State did not stop the Statewide Bandh call, it does not follow that the officials and electedGovernment had entered into larger conspiracy culminating with theevents unfolded on 27.2.2002 onwards. In the first place, the materialscollated during investigation does not corroborate this fact. In any case,the inaction or for that matter, tacit support of the elected Governmentof the State to the State wide Bandh, by itself absent any otherincriminating circumstance/material, cannot be the basis to initiateprosecution against the high officials of the State on the charge of criminalconspiracy and for violence happening across the State.

(x) As regards the allegation regarding late deployment of Army,the same was found to be devoid of substance by the SIT. The materialcollected during investigation revealed that the then Chief Minister, onthe basis of inputs and sensing serious problem across the State, hadtelephonically interacted with the then Home Minister of the Governmentof India at 1.00 p.m. for deployment of Army and formal written requestwas sent on fax to the Union Ministry at 2.30 p.m. on 28.2.2002. The

Aarrival of army took some time due to unavoidable situation and afterproviding logistical assistance, the Army was deployed immediately onthe following day. These measures taken by the State Government, infact, are indicative of prompt steps taken to avoid any further untowardsituation and destroys the theory of larger conspiracy by the State at thehighest level or State supported violence.B

(y) It was urged by the respondents that material on record takeninto account by the SIT has been noted even by the Nanavati-ShahCommission and the trial Court in Gulberg Society case being CR No.67/2002, indicative of the measures taken by the State in anticipation ofthe riots, but the civil administration was overrun across the State. Further,Capprehending the fallout aftermath the Godhra train burning episode andthe general unrest all around, Army was requisitioned on 28.2.2002 itselfeven before the violence had actually taken serious proportion acrossthe State. The Army arrived on the same midnight, as they were postedat the borders due to security reasons aftermath the attack on theDParliament on 13.12.2001 (which had happened only two months earlier).After arrival and providing logistical support at the local level, the Armywas deployed in sensitive areas across the State. The contemporaneousrecord would, therefore, indicate that the theory of larger conspiracypropounded in the complaint is falsified being imaginative.

E(z) As regards the partisan investigation in the concerned criminalcases, the same was also of no avail, as there was no evidenceforthcoming to connect it with the allegation of larger conspiracy.

(aa) The SIT had examined everyone involved including the thenChief Minister until the last Minister and found that there was no materialFto connect them with the allegation of larger conspiracy.

(bb) It is submitted that allegation concerning the conduct ofgrassroot level officers had nothing to do with the allegations regardinglarger conspiracy at the highest level.

(cc) Even allegations based on the affidavit of Mr. R.B. SreekumarGhad nothing to do with the allegations of larger conspiracy and in particular,the directions issued from the highest authority – the then Chief Minister.Furnishing of alleged misleading reports by the State Home Departmentto the central Election Commission for conduct of early elections, alsohas no connection with the theory of larger conspiracy being the causeof eruption of violence across the State. It is pointed out that appellant –H

Zakia Ahsan Jafri, in her evidence recorded on 22.10.2010, acceptedthat Mr. R.B. Sreekumar was at the relevant time, working with anNGO and Ms. Teesta Setalvad was associated with that organisation.Interestingly, she was none else, but the convener of the Private CitizensCommission headed by former Supreme Court Judges and was in aposition to influence appellant – Zakia Ahsan Jafri. It is submitted thatMs. Teesta Setalvad, for reasons best known to her and out of vengeance,was interested in continuing with her tirade and persecution on the basisof unsubstantiated allegations in the complaint in the name of quest forjustice with real purpose to keep the pot boiling and sensationalise andpoliticize the crime. The version of Mr. R.B. Sreekumar in the lateraffidavits commenting about the functioning of the administration, mustbe viewed in the context of his denial of career opportunities.

(dd) Indisputably, Mr. R.B. Sreekumar, former IPS officer wasposted as Additional Director General of Police, Armed Unit, Gujarat, atthe time of riots, who had filed nine affidavits before the Nanavati-ShahCommission. He did not derive any of its contents from personalknowledge/information, which he might have received as occupant ofthe stated office. Further, he did not make any allegation against theState Government in his initial two affidavits filed before the Commission,but started making allegations from third affidavit dated 9.4.2005,presumably because he was deprived of service benefits having beensuperseded by his junior – Mr. K.R. Kaushik. Later, he got involved asan accused in the FIR filed by CBI in ISRO spying case, which hadbeen registered under directions of this Court in S. Nambi Narayananvs. Siby Mathews & Ors.[81] and again between the same parties[82].

(ee) Appellant – Zakia Ahsan Jafri in her cross-examination inGulberg Society case being CR No. 67/2002 as PW-337 had concededthat she knew Ms. Teesta Setalvad for some time and also about havingmet Mr. R.B. Sreekumar after the incident. She has stated thatMr. R.B. Sreekumar had come to Gulberg Society on 28.2.2002 andupon completion of four years she had met him. She had also stated thatMr. R.B. Sreekumar was presently working with Ms. Teesta Setalvad.She had also admitted in her cross-examination that she had givenstatement on 22.8.2003 before the Nanavati-Shah Commission and aftergiving that statement, she had no occasion to read copy of that statement.

81 (2018) 10 SCC 804

82 2021 SCC Online SC 760

AThis was suggestive of the fact that she was tutored by Ms. TeestaSetalvad, but she never disclosed about that, which fact she had to admitin the cross-examination. She had also admitted in her cross-examinationthat Mr. R.B. Sreekumar was disappointed with the Government. At thesame time, she was unable to recall about the enquiry made by the SITin connection with the affidavit filed by her before the Commission.BAnd that, she had throughout followed the instructions of Ms. TeestaSetalvad. In the final supplementary report filed by the SIT in GulbergSociety case being CR No. 67/2002, it has been clearly noted that nineteenwitnesses insisted to take on record their prepared signed statement(s),which according to them, were prepared by Ms. Teesta Setalvad andCAdvocate – Mr. M.M. Tirmizi and did not show willingness to give theirown statement. The statements so presented were stereotyped copies/computerised prepared statements given to them by Ms. Teesta Setalvadand Advocate – Mr. M.M. Tirmizi and they had merely signed suchprepared statements.D(ff) The final report extensively discusses the allegations culledout from separate affidavits filed by Mr. R.B. Sreekumar before theNanavati-Shah Commission after recording the statements of concernedpersons and collecting relevant documents - as can be discerned frompages 264-266, 271-283, 285-287, 297-298, 302-312, 326 and 329.

E(gg) The other allegations founded on the version of Mr. RahulSharma were also enquired into and the SIT examined the relevant callrecords to conclude that the same were baseless. The allegations werebroadly regarding laxity and failure in maintaining law and order duringthe relevant time.F(hh) The SIT recorded statements of all the relevant persons who

F(hh) The SIT recorded statements of all the relevant persons whowere stung in the Tehelka Sting Operation. The call details of BabuBajrangi, who was one amongst them, clearly establishes that he was inAhmedabad from morning 11:15 hrs. on 27.2.2002 and, therefore, hecould not have been in Godhra at the time of Godhra train incident.Similarly, the call details of Haresh Bhatt were analysed, which revealedGthat he was present in Ahmedabad till 9:30 hrs. on 27.2.2002. His locationwas again shown in Ahmedabad directly at 18:40:21 hrs., which supportshis claim that he had gone to his village during the interregnum period,when connectivity was not there. Again on 28.2.2002, his locationremained at tower of mobile service provider in Paldi in Ahmedabad tillH12:00:04 hrs. on that day. This supported his claim that he had visited his

village for week. In any case, Haresh Bhatt had not been named in theFIR register pertaining to riot cases in Gujarat or in the complaint filedby appellant – Zakia Ahsan Jafri.

(ii) As regards the argument founded on Tehelka Sting Operationabout build-up of arms and ammunition in Gujarat even before Godhratrain incident, the contents of the transcript are not corroborated fromthe material available with the SIT. The trial Court in Sessions Case No.152/2002 arising from Meghaninagar PS FIR No. 67/2002 (GulbergSociety case) regarding use of firearms in the incident, had observed inparagraph 722 that there is no evidence or recovery of the bullet firedfrom private weapon by any member of the mob. The only case is thatthe material recovered from the scene of offence were empty cartridgeshells and bullet casings, ballistically established to have been fired fromthe licensed weapon to be of the ownership of late Mr. Ehsan Jafri. Inother words, there is no corroborative material forthcoming regardingcommission of any offence by the offenders named in the complaint,much less of larger conspiracy.

(jj) The Tehelka Sting Operation in way relates to the allegationregarding criminal conspiracy at the local level. The contents thereofhave nothing to do with the allegation of larger conspiracy enquired intoby the SIT as directed by this Court. The local level conspiracy hadbeen investigated in the respective cases including the nine casesinvestigated by the SIT under supervision of this Court. In the concernedcases, all persons involved including the persons recorded in the stingoperation have been proceeded against in the concerned case. As hadbeen pointed out, SIT nevertheless recorded statements of 13 personsout of 18 involved in the operation ‘Kalank’ by Tehelka. The statementsof those persons in law could be used against the maker of the statementas extra judicial confession, but not against others and more so withoutcorroborative piece of evidence. The SIT had not only recorded thestatement of Babu Bajrangi, but also Prakash S. Rathod (a worker at aPetrol pump) and Haresh Bhatt. Their presence at the place referred toby them stood falsified by the call detail records. Their version has beenanalysed by the SIT and found to be unuseful in the context of theallegation of larger conspiracy being enquired by it under directions ofthis Court. Until the disposal of the matter by this Court on 12.9.2011[83],the issues now raised were never pointed out even by the Amicus Curiae.

83 supra at footnote No. 26

A(kk) The learned counsel would also urge that incorrect statementwas made on behalf of the appellant that the SIT had not recordedstatement of any victim. This submission is falsified from the record ofthe SIT, which includes the statements of concerned victims (minoritycommunity), list whereof has been mentioned in paragraph 35 of theFinal Note Part-III with heading “Clarification as to Conspiracy in theBGulberg Case”.

(ll) Similarly, incorrect allegation was made against the SIT aboutthe records produced by Mr. P.C. Pande. Those records were producedby Mr. Pande on his own and not as per directions given by this Court.Further, the record was scanned copy of the PCR messages done byChim and in his custody. Whereas, the original records which were allegedlyscanned by him, were destroyed in the year in 2008 itself as per rules inGujarat Police Manual. As such, the SIT cannot be blamed for non-recovery of the original PCR message record.

(mm) It was also faintly suggested that the SIT had failed toDrecord further statements or re-examine the witnesses. It is urged thatthose persons who came to give their statements to SIT, their statementswere recorded by the SIT without exception. If any witness wanted togive further statement, could have done so on his own if he desired toshare further information. But no such request was received by the SIT.EIf the SIT wanted to re-examine any witness, it could have done sounhesitatingly. In substance, the allegation about the inaction of the SITor partisan attitude during the investigation is, to say the least,preposterous.

(nn) It is urged that the SIB messages being exchanged betweenthe concerned officials itself is indicative of the fact that the StateFGovernment and the police were proactive in dealing with the crisis thatwas evolving post-Godhra episode. Additionally, on 28.2.2002 itself, theState called for Army assistance by sending formal request in thatbehalf and on arrival of Army after giving logistical assistance, it wasdeployed all across the sensitive areas in the State. This also is indicativeGof the fact that proactive measures were being taken by the State, butthat was overrun by the expanse of spontaneous mass violence. TheSIT had noted that the SIB being responsible to collect intelligenceregarding law-and-order situation in the State, was at the relevant timeheaded by Mr. G.C. Raiger, the then Additional Director General of Police-HIntelligence. The authorities who were supervising the functions of this

department have been named as being part of pre-planned largerconspiracy. However, on analysing the messages, it is noticed that theintelligence agencies of the State were collecting the relevant intelligenceand disseminating the same to the concerned authorities. Thus understood,the allegation of pre-planned larger conspiracy and involvement of namedhigh officials remained unsubstantiated and not even warranting anysuspicion about their involvement.

(oo) It is urged that left to the appellant, she had gone to theextent of suggesting that the two train bogies were put on fire as partof pre-planned conspiracy hatched by the highest authority. This is onlyfigment of imagination, preposterous and in disregard of the hard factsdiscernible from the material collected by the SIT including in theinvestigation concerning Godhra incident clearly spelling out the mannerin which that incident had occurred. The trial of that case has establishedthe involvement of accused who had been convicted for being responsiblefor the said incident and appeal therefrom is pending in this Court.(pp) It is urged that assuming that it is case of intelligence failureand in given situation, inaction of the concerned authority responsibleto take corrective measures, such failure cannot take the colour of beinginvolved in criminal conspiracy as such. For being involved in the crimeof criminal conspiracy, there ought to be positive material indicative ofdeliberate act of commission and omission and meeting of minds of theconcerned persons, which was completely absent and not forthcomingduring the investigation conducted by the SIT to enquire into the allegationsof larger criminal conspiracy. The SIT had investigated into the role ofevery person named as offender in the complaint under considerationand analysed the same in the final report offender-wise as well.

(qq) The SIT had recorded statements of various officials of SIB,such as Mr. P.B. Upadhyay, the then DCI (Communal), Mr. O.P. Mathur,the then IGP (Admn. & Security), SIB, Mr. G.C. Raiger, the thenAdditional DG (Intelligenc), as also of Mr. Ashok Narayan, ACS (Home),which have been taken into account for forming opinion, as noted in thefinal report. Despite the efforts put in by the officials, there are situationswhich are unpredictable being sporadic, sudden, spontaneous and dynamicin nature. Even with best of anticipation and arrangements in place, itwould get overwhelmed by the proportion of violence all across the State.In such eventuality, it would be case of collapse of State administration,but cannot pass the muster of concerned officials being part of larger

Aconspiracy. The officials are expected to respond to the evolving situationwhile adhering to the norms, but may end up in situation which can gobeyond their control at various places across the State owing to massviolence.

(rr) The SIT had also closely examined the allegation of conspiracyBin making kerosene bombs and came to the conclusion that there was noevidence worthy of proceeding against the named offenders, much lesson the allegation of larger conspiracy for want of evidence regardingmeeting of minds in particular.

(ss) In reference to the argument that the trials against the namedCaccused were being compromised by the public prosecutor (Mr. ArvindPandya), has also been rebutted by the SIT on the argument that thepublic prosecutor to whom reference has been made by the appellant,was not appointed by the State in any single criminal case investigatedby the SIT, but had appeared before the Nanavati-Shah Commission.Further, he had resigned in 2008 before the SIT took over the investigationDof the complaint dated 8.6.2006. He could not have, in any way, influencedthe trial in any of the specified cases. Out of nine cases, trial in eightcases had been completed under the gaze of SIT and in none of thecases, any adverse opinion has been recorded by the concerned Courtin that regard. Thus, the plea in support of the allegation of largerEconspiracy is tenuous.

(tt) As regards allegation No. (xv), it is submitted that publicprosecutor appointed by the State Government before the Nanavati-Shah Commission had not been named in the complaint, but now duringthe arguments, his role in compromising the trials was being highlighted.This cannot be countenanced.F

(uu) Significantly, the contents of the complaint dated 8.6.2006,besides relying on the materials/affidavits filed before the Nanavati-ShahCommission, also note that there are some matters which could not havebeen considered by Nanavati-Shah Commission and reference is madeGto such matters. Even that aspect has been duly investigated and theopinion formed by the SIT was that the same are unconnected with theallegations of larger conspiracy.

(vv) Noticeably, the final report dated 8.2.2012 was presented bythe SIT before the Metropolitan Magistrate pursuant to the direction

given by this Court on 12.9.2011[84] even before the Nanavati-ShahCommission had submitted its report, which was tabled in the Assemblyon 18.2.2012. Furthermore, the allegation regarding larger conspiracy ofState-sponsored violence noted in the complaint, was required to beinvestigated only in the last case investigated by the SIT i.e., GulbergSociety case being CR No. 67/2002. Not even remote reference wasmade to such allegation in the other eight cases investigated by the SIT.Similarly, no allegation about unfair investigation done has been madeagainst the SIT in any of those cases including before this Court, exceptin the present case.

(ww) It is urged that since the appellant has now chosen not topursue allegation Nos. (i) and (iv), the entire basis of the complaint dated8.6.2006 has become irrelevant and redundant. For, stated allegationswere essentially about the larger conspiracy involving highest politicalauthority/bureaucracy and actions or inactions of the high officialsunfolding under dictation of the then Chief Minister. The remainingallegations would then be unconnected with the larger conspiracy and,therefore, need not be taken forward against the then Chief Ministerand high officials of the State Government. In any case, every allegationhas been duly enquired into and investigated by the SIT before formingits opinion that no case had been made out against the offenders namedin the stated complaint.

(xx) The appellant, however, has now changed the goalpost byplacing emphasis on transcripts of Tehelka Tape on the argument thatgenuineness of the tape had not been doubted; and, therefore, to contendthat the contents of the tape inspire confidence to proceed against thepersons named in the complaint. On the other hand, even though theTehelka tape did not form part of the complaint dated 8.6.2006, whichwas filed almost four years after the events of February, 2002 as theTehelka tape surfaced only on 27.10.2007, yet the SIT enquired into thesame in the context of the persons named in the complaint as offenders.For, in law, it could be used as extra judicial confession only against themaker of the statement and not against other persons though referred toin such statement[85]. In that light, the Tehelka tapes, heavily relied uponby the appellant, were of no avail. Notably, the tapes have been relied in

84 supra at footnote No. 26

85 R.K. Anand vs. Registrar, Delhi High Court, (2009) 8 SCC 106 and Rajat Prasad vs.Central Bureau of Investigation, (2014) 6 SCC 495

Athree other cases investigated by the SIT and also in Gulberg Societycase being CR No. 67/2002, but the trial Court has adversely commentedupon the said tape, which decision is now subject matter of appeal beforethe High Court and this Court in those cases.

(yy) Further, even if the material in Tehelka sting operation beingBa genuine work is to be accepted, it does not follow that the contents ofsuch tape would have probative value. Upon investigation, if it was to befound that the tape and the contents have probative value, only then itcould be used, that too against the maker of the statement alone and notagainst any other person.

C(zz) It was pointed out that Mr. Ashish Khaitan was examined asPW-313 in trial of Gulberg Society case being CR No. 67/2002 and hisversion has been duly dealt with in the said judgment by the Trial Court,for not accepting the contents thereof.

(aaa) It is urged that the complainant has been continuouslyDintroducing new arguments/allegations at different stages of theproceedings. That has been depicted in the chart given in paragraph 45of the Final Note Part-III of respondent No. 2, which reads thus: -

101ABCDEFGH

(bbb) Insofar as fresh allegation regarding criminal negligence offire brigade in Ahmedabad under Mr. P.C. Pande, it obviously overlooksH

the fact that fire brigade comes within the Ahmedabad MunicipalCorporation and not State police. Mr. P.C. Pande was Commissioner ofPolice of Ahmedabad city and had nothing to do with the functioning offire brigade. In the complaint, vague allegation is made that the firebrigade/help did not reach on time when needed. However, that wasowing to in many of the disturbed areas, roads were blocked by puttingobstacles.

(ccc) Similarly, the allegation regarding post mortem of dead bodiesat Godhra Railway station being part of larger conspiracy, is founded onconjectures and surmises. The Godhra incident was fully investigatedand tried in which no such case was put forth. That matter had travelledto the High Court as well and now it is pending in this Court. The issuesregarding necessity to do post mortem of the dead bodies in the Railwayyard and the manner of doing it, has been examined in those proceedings.In the name of protest petition, the appellant intends to enlarge the scopeof enquiry including into fresh matters such as the manner in which thefire occurred in the two coaches of Sabarmati Express on 27.2.2002,which aspect has been thoroughly investigated in that case. The appellanthad gone to the extent of levelling insinuation by attributing fire ignitedby the persons inside the train themselves or by other persons from thesame community as part of larger conspiracy to spread hatred andviolence across the State. That too, with the involvement of the politicaldispensation at the highest-level being part of larger criminal conspiracy.The attempt of the appellant is to bring in all other cases (Sardarpuracase, Deepda Darwaza case, Ode case, Naroda Patiya case, NarodaGaam case, Best Bakery case, Bilkis Bano case etc.), which have alreadybeen thoroughly investigated and tried by the concerned Court includingin respect of charge of criminal conspiracy at the concerned level in thegiven case. That cannot be countenanced.

(ddd) It is urged that the appellant is also ill-advised to heavilyrely upon certain information in book written by former Major General,who never came to give his statement before the SIT, despite the publicnotice issued on 28.4.2008 after the SIT was appointed by this Court toinvestigate nine major cases. The book was written only in 2018. Theveracity of the contents thereof would only be in the realm of guesswork.

(eee) It is urged that the SIT has done everything to the best ofits ability and as team, investigated all the nine major cases assigned to

Ait by the Court. Despite the commendation by this Court about thehumongous task undertaken by the SIT, the appellant had the impudenceto make submission bordering on questioning the integrity of the SITappointed by this Court; and though the work was completed by it underthe strict vigil of this Court including the Amicus Curiae who had takenassistance of all the stakeholders and also Ms. Teesta Setalvad. TheBAmicus Curiae, in one sense, was discharging the role of investigatinginto the work of Supreme Court appointed investigators (the SIT) –investigating the investigators. The SIT, after taking over investigationof nine major cases assigned to it by this Court, filed supplementarychargesheets in all those cases and also pursued the cases until theCstage of trial, and is still reporting about the progress of those cases tothis Court periodically.(fff) As regards the investigation of complaint dated 8.6.2006, ithas been done by more than one investigating officer during relevantperiods at different point of time as per the exigency and direction of thisDCourt, but the finding and observations of the SIT in every report havebeen consistent. Significantly, the members of the SIT have beencontinuing to function under the directions of this Court even after theirsuperannuation from service, only because this Court had been satisfiedabout their performance. At one stage, similar attempt was made by theappellant, as result of which the Court had to stay the trial of GulbergESociety case being CR No. 67/2002, which was eventually lifted on1.5.2009[86] for the reasons noted in the said order. In fact, this Court hadtaken note of the misadventure of Ms. Teesta Setalvad in forwardingher letters written to Chairperson of the Supreme Court appointed SITto the OHCHR, Geneva and that upon her undertaking that she will not

Fdo so in future, the matter stood closed. It is urged that insinuations havebeen made against the Supreme Court appointed SIT and, in the process,the wisdom of this Court has been questioned in accepting the work ofSIT as fair and complete investigation of the allegations in the statedcomplaint.

G(ggg) It is matter of record that this Court reposed completetrust in the SIT not only by entrusting responsibility of investigation ofthe stated crime, but also to ensure that the trial of all those casesproceeded in fair manner and not compromised, by giving authority toSIT to recommend names of able and apolitical lawyer to be appointed

H86 supra at footnote No. 18

as public prosecutor(s), including providing protection to witnesses whenrequired. With the untiring efforts of the Supreme Court appointed SIT,trials of eight other cases ended in substantial number of convictionsincluding imposition of capital punishment. Such being the track recordof the SIT, which has been closely monitored by this Court from time totime to its satisfaction and commended upon on more than one occasion,yet the appellant has gone to the extent of questioning the integrity of theSIT, despite the fairness in the investigation. Such plea cannot becountenanced and is in the nature of questioning the authority and wisdomof this Court in expressing satisfaction about the performance of theSIT and commending expressly on more than one occasion inter alia,in its orders dated 1.5.2009[87] and 13.4.2017.

(hhh) Notably, the stated complaint was submitted by appellant –Zakia Ahsan Jafri and as no follow-up steps were taken by the concernedauthorities, writ petition was filed by her for issuing direction to thecompetent authority to register the same as FIR to be investigated by anindependent agency (not the Supreme Court appointed SIT). Ms. TeestaSetalvad joined as petitioner No. 2 for the first time in these proceedingsbefore the High Court. The High Court vide judgment dated 2.11.2007in Criminal Application No. 421/2007, opined that Ms. Teesta Setalvadhad no locus to maintain such application and decided the writ petition atthe instance of appellant – Zakia Ahsan Jafri, by permitting her to fileappropriate private complaint before the Magistrate under Section 190of the Code. That opinion of the High Court has not been reversed bythis Court while disposing of SLP(Crl.) No. 1088/2008 on 12.9.2011[88].(iii) As noted earlier, even though the appellant had been pursuingSLP(Crl.) No. 1088/2008 before this Court for direction to the competentauthority to register the complaint as FIR, this Court permitted the trialof CR No. 67/2002 concerning Gulberg Society to proceed, in whichappellant – Zakia Ahsan Jafri was examined as PW-337 on 22.10.2010.Even before the trial Court, she did not raise any matter in her evidenceregarding larger conspiracy referred to in her complaint dated 8.6.2006.The material on record would clearly suggest that she is being driven byMs. Teesta Setalvad to pursue and so to say, precipitate her complaint.The complaint, however, is vague and bereft of allegations of criminality.At best, the allegations founded on the material/affidavits filed before

87 supra at footnote No. 18

88 supra at footnote No. 26

Athe Nanavati-Shah Commission, were indicative of dereliction of duty ofconcerned officials/authorities. The complaint is based essentially onthe statements of Mr. R.B. Sreekumar, Mr. Rahul Sharma and Mr. SanjivBhatt, which may support the allegations of inaction or dereliction ofduty by the concerned high officials. The claims made by these threepersons, however, have been contradicted by the concerned persons onBthe basis of contemporaneous record. The complainant – Zakia AhsanJafri yet wants to proceed including on the basis of statements of thesethree officials against the version of the entire establishment, which isbacked by contemporaneous record.

(jjj) Mr. R.B. Sreekumar had referred to Register, which was hisCpersonal diary and not official record, as investigated and found by theSIT. Being his personal diary, it could not be used against the offendersnamed in the complaint and in any case, the contents thereof being in thenature of entries made in the usual course of official business by theconcerned department expected to act in tandem with concerned officialDagencies. The contents of the diary, in the opinion of the SIT, were of noavail. He had filed affidavit before the Nanavati-Shah Commission inthe year 2009 for the first time. In the earlier affidavits, no referencewas made to the said diary/register. Moreover, Mr. R.B. Sreekumarwas posted in Law & Order Division only in April, 2002 after the ghastlyevents had already unfolded in February and March, 2002. Thus, he hadEno personal knowledge about any instructions, much less allegedly givento the high officials or by high officials to their subordinates at the relevantpoint of time as being in the nature of criminal conspiracy.

(kkk) Similar is the case of Mr. Rahul Sharma, another starwitness of the complainant (appellant). He had referred to the call recordsFin question for the first time only in 2008. Before that, he had filed morethan one affidavit before the Nanavati-Shah Commission making noreference to the said call records. Further, in the subsequent affidavit,the stand taken by him is completely different. It is the case of the SITthat after lapse of one year, no details regarding call records are preservedGby the service provider. To the same end, seizure of mobile phone afterlapse of seven years would have had served no purpose. Further, theauthentication of the call details/records supplied by Mr. Rahul Sharmaand the call details/records available with the SIT were duly consideredbefore forming opinion by the SIT. Mr. Rahul Sharma claims to havebeen authorised to assist the supervisory officer in investigation of theHpost-Godhra riot case, which were being investigated by Crime Branch– Ahmedabad city, by the then Commissioner of Police, AhmedabadCity. He was neither investigating officer nor direct supervisory officerin the Naroda Police Station CR No. I 193/2002. He claims to haveobtained compact disc containing call details in connection with statedcase of Naroda Police Station from two different cell phone serviceproviders (M/s. Cellforce and M/s. AT&T) containing call details of allsubscribers in Ahmedabad city and Godhra as case property of theoffences under investigation. However, he failed to hand over the saidcase property to the investigating/supervisory officer of the case, norgot it entered into the register of case property (Muddamal) and also notinformed the Court of jurisdiction about the seizure of aforesaid caseproperty. Whereas, he produced the compact disc for the first time onlyon 31.5.2008, for reasons best known to him. The compact disc producedby Mr. Rahul Sharma before the Nanavati-Shah Commission was thenobtained by Mr. Amresh N. Patel, Jan-Sangharsh Manch from theCommission of inquiry, as also, by the investigating officer. It was notpossible for the SIT to obtain certificate under Section 65B of the IndianEvidence Act, 1872 as the original compact discs were never producedby Mr. Rahul Sharma. Notably, the data from the compact discs wereadmittedly copied by Mr. Rahul Sharma in his personal computer and inthe changed format i.e., ZIPPED format. In other words, Mr. RahulSharma had failed to ensure the integrity of the data and never producedthe original compacts discs of the two mobile service providers. Despitethat, the SIT attempted to authenticate the available data by sending it toForensic Science Laboratory, Ahmedabad for examination, comparisonand checking the contents available therein. The laboratory has opinedthat MD5 Hash value of the files in all the three compact discs werefound to be same, but the call data records in the CPU of personalcomputer of Mr. Rahul Sharma indicated that the files containing calldata records or fragments of the files could not be found on the computerstorage media. The SIT also recorded statements of various witnessesunder Section 161 of the Code for tracing the original compact discs andauthenticating the available data (late Mr. Ashok Bhatt, Mr. P.C. Pande,Dr. Anil T. Patel), but the original compact discs could not be traced.The final report has analysed the statements of the said persons and theopinion of the SIT in detail. It was noticed that the call details of theGandhinagar tower where most of the functionaries of the Governmentof Gujarat were placed, was not available with the SIT, as the same had

Anot been requisitioned/obtained by Mr. Rahul Sharma during investigationof the riot cases. The SIT has thoroughly investigated even this aspectand all related material and having found that the said material appearsto be doctored and fabricated and not in consonance with the officialrecords. It thus noted its conclusion that the same was of no avail toproceed against the named offenders for offence of larger conspiracy inBconnection with C.R. No. 67/2002 concerning Gulberg Society orotherwise.

(lll) It is urged that the appellant is heavily relying on the statementsof Mr. Rahul Sharma, despite the fact that in the complaint dated8.6.2006, he was named as offender No. 45 and accusations againstChim were specifically mentioned against his name in the body of thecomplaint while also showing him as witness No. 5 in the same complaint.However, the copy of complaint filed before this Court reveals that therelevant paragraph making accusations against Mr. Rahul Sharma hasbeen deleted alongwith his name as offender No. 45 in the complaint.DThis is serious matter.(mmm) The case of Mr. Sanjiv Bhatt is still worse. He has beenconvicted for murder (as mentioned in paragraph 7 under the head“Short Pointers” in the Convenience Compilation filed on behalfof respondent No. 2); and for planting narcotics in the room of lawyerEin some other State. He had claimed that he was present in the meetingconvened on 27.2.2002. But all officers who were present in the meeting,have denied his claim.

(nnn) Relying on the observations made in the decision in SanjivRajendra Bhatt vs. Union of India & Ors.[89], it was urged that theFsame were indicative of the character and conduct of Mr. Sanjiv Bhatt,who falsely claimed to have remained present during the meeting ofhigh officials on 27.2.2002, where the then Chief Minister had allegedlymade certain objectionable utterances.

(ooo) The appellant wants this Court to disregard the version ofGall other high officials and to proceed against the named offenders onlyon the basis of version of three persons proclaiming themselves as beingwedded to truth. As matter of fact, it is urged that all the three personson whose statements emphasis has been placed, have been adverselycommented upon not only by the Nanavati-Shah Commission, but also

H89 (2016) 1 SCC 1 (paras 49 to 55)

by the SIT in its final report including the damning observations by thisCourt against Mr. Sanjiv Bhatt.

(ppp) Moreover, the appellant has repeatedly argued that the SITdid not record statement of Mr. Anil Patel, which fact is contrary to therecord. At the same time, the appellant placed reliance on the statementsof Mr. Anil Patel, who has not been named as offender in the complaintdated 8.6.2006. In fact, there are three persons having common name.The first is – Mr. Anil Tribhovandas Patel, the then Minister, Gujarat;second being Mr. Anil Shankerbhai Patel, VHP worker; and the third– Dr. Anil Patel, general practitioner at Ahmedabad City.

(qqq) As stated earlier, the repeated grievance made on behalf ofthe appellant that crucial witness – Mr. Anil Patel was not even examinedby the SIT, is incorrect submission. In that, there are three persons withsame name and the person who has been stung by operation Tehelka isMr. Anil Shankerbhai Patel, VHP worker, whose statement was dulyrecorded by the SIT including the other two persons with the same name,namely, Dr. Anil Patel and Mr. Anil Tribhovandas Patel, the then Minister,Gujarat. The SIT had also recorded statements of 13 other persons outof total 18 involved in sting operation, which were found to be relevantfor the purpose of enquiry into the allegations under consideration.

(rrr) As regards the allegation regarding dead bodies having beenparaded, the same has been fully enquired into and the SIT was of theopinion that no such event of parading had occurred at any place.However, novel argument is being pursued by the appellant before thisCourt. For, the allegation in the complaint was of having handed overdead bodies to private persons, namely, Hasmukh Patel and JaideepPatel. During the investigation, it has come to the fore that the letterwritten by the Tehsildar, handing over bodies, mentioned the name ofJaideep Patel, but that was not because of the instructions given by anysuperior authority. Further, the local Tehsildar has been proceededdepartmentally for this folly. The contemporaneous record including thestatements of concerned persons, however, reveal that the dead bodieswere carried in closed vehicles under police escort, alongwith whomMr. Jaideep Patel had merely travelled. The process of handing over ofthe dead bodies to the officials of the hospital at Ahmedabad was in factdone by the officials/police accompanying the dead bodies and not byMr. Jaideep Patel. After taking charge of the dead bodies, the officialsof hospitals handed over the same, after due identification, to their relatives

Aand the bodies which could not be identified despite effort of DNA testmatching, were cremated by the local officials at Ahmedabad. There isnot even tittle of material to indicate that the bodies were taken in openvehicles or so to say, paraded from Godhra to Ahmedabad or anywhereelse by any group of private persons before cremation. The decision totake bodies to Ahmedabad was conscious and unanimous decision ofBthe concerned authorities at the local level and not on instructions ordirections given by the then Chief Minister, as alleged. It was so decidedas majority of the dead persons were from Ahmedabad and nearby places.In that, out of 58 dead bodies, 4 bodies belonging to Dahod, Vadodara,Panchmahal and Anand districts were handed over to their legalCrepresentatives after identification at Godhra itself. The remaining 54bodies were sent under police escort to Ahmedabad, as most of thevictims were resident of Ahmedabad and nearby areas. Out of 54 bodies,35 could be identified and handed over to their relatives on 28.2.2002.Remaining 19 bodies were cremated by the officials on 1.3.2002, out ofwhich 12 could be later on identified by DNA test and 7 remainedDunidentified. Hence, it is seen that it became convenient for the relativesof the deceased persons to collect the dead bodies from Ahmedabad. Itwas also decided to take the dead bodies during night time under policeprotection to avoid any untoward situation. Such being the material onrecord, the argument regarding the bodies being paraded, much less as aEpart of larger conspiracy at the highest level, is preposterous.

(sss) To begin with, the appellant had argued that dead bodieswere purposely paraded all over, but later improved upon that grievanceby showing that parading of bodies was done after hospital handed overbodies, duly identified, to the respective relative until the same was takenFfor cremation.

(ttt) Significantly, the complaint dated 8.6.2006 neither makesmention about hate speeches being outcome of larger conspiracy nor itis alleged that so-called parading of dead bodies was resorted to as partof larger conspiracy.

(uuu) Much had been argued by the appellant about no investigationby the SIT in respect of hate speeches. It is submitted by the learnedcounsel for the SIT that thousands of cases were reopened by this Court,wherein ‘A’ Summary Report(s) came to be filed and in some of thosecases, charges regarding hate speeches have been enquired into.

(vvv) It is urged that the allegations regarding build-up or laxityor about the post-mortem done in open in Railway yard, failure to providefor adequate bandobast or arranging fire brigade on time, are notsupported by any credible material, much less to raise strong suspicionto proceed against the named offenders being involved in largerconspiracy. Appellant had the gumption to contend, suggestive of thefact that the train was set on fire at Godhra by the passengers themselvesor by persons belonging to their own community who were engaged indoing preparatory (build-up) arrangements.(www) The attempt of the appellant was to present rambling factsto create confusion, leaving out core issues that needed to be focussedto cull out the material on the basis of which an objective and decisiveopinion could be formed that the offence of larger conspiracy at thehighest level had been committed and the named offenders havecommitted the same. That is completely absent and for which reason,the appellant has chosen to make such pretentious presentation beforethis Court including not to argue on allegation Nos. (i) and (iv) concerninglarger conspiracy involving the then Chief Minister and other high officialsof the State Government. Instead, the appellant has now adopted astratagem only to focus on the other allegations in the complaint andfurther allegations mentioned in the protest petition on the speciousargument that those allegations can be made good on the basis ofundisputed documents and record. This is subterfuge created by theappellant for achieving the ill-intended design of keeping the charge orallegation of larger conspiracy as noted in allegation nos. (i) and (iv)open, by adopting circuitous route little realising that the other allegationsare all unconnected and have no causal bearing with the allegations oflarger conspiracy by the then Chief Minister and other high officialsnamed as offenders in the complaint.

(xxx) The appellant had the audacity to assert in the protest petitionthat it is open to her to keep on adding new materials and allegationswhich the Court is bound to examine to do complete justice, so that shewould succeed in her design to keep the pot boiling and politicising thecrime. This indeed was being done at the instance of the group of personsin the name of so-called public-spirited persons like Ms. Teesta Setalvad.The protest petition is not genuine protest petition by any standard.

(yyy) Indisputably, large number of criminal cases came to beregistered after the mass violence across the State. It is stated that

Aaround 2000 cases came to be registered concerning the mass violenceout of which nine major cases were assigned to the SIT by this Courtvide order passed in writ petition filed by NHRC. In none of the casesincluding nine cases, any evidence of alleged larger conspiracy came tothe fore either during the investigation or during the trial of those cases.It is only in the complaint under consideration that allegation of largerBconspiracy at the highest level of Government has been made, whichremained unsubstantiated, leave alone creating suspicion against theoffenders named in the complaint. If this conjured plea was to beencouraged, it may give rise to uncertainty and possibility of reopeninghundreds of cases, already concluded and may be pending in appealsCbefore the High Court or this Court.(zzz) The attempt of the appellant is to continue with unfoundedallegations against the then Chief Minister/politicians/high officials/bureaucrats without raising those allegations during the investigation ofCR No. 67/2002 concerning Gulberg Society at the earliest opportunityDafter publication of notice by the SIT inviting public to give their statement,if they were so interested and had any specific information about suchcrime. No one came forward including Mr. R.B. Sreekumar, Mr. RahulSharma and Mr. Sanjiv Bhatt, who now claim to be the protagonist oftruth to depose those facts before the SIT. As matter of fact, appellant– Zakia Ahsan Jafri, who has been examined as witness in GulbergESociety case being CR No. 67/2002 as PW-337 was not an eye-witnessas such, but was only present in the house when the events unfolded.She had admitted of having given statement on affidavit to the Nanavati-Shah Commission, as well as before the Court under instructions of Ms.Teesta Setalvad and Mr. R.B. Sreekumar. Such being the case coupledFwith the limited remit given to the SIT by this Court, the question ofdirecting further investigation of any other matter besides the allegationsin the complaint and at this distance of time, would be travesty of justice,abuse of process and ought not to be countenanced.

(aaaa) The whole attempt of the appellant appears to be toGpersuade this Court to direct the SIT to reinvestigate the crime of criminalconspiracy, which has already been tried by the Court of competentjurisdiction, in which the accused named therein have already beenacquitted. Any such attempt would be infringement of their rightguaranteed under Section 300 of the Code and Article 22 of theConstitution. If the appellant was so keen, she should have availed ofH

the opportunity in the form of liberty granted by the High Court on2.11.2007 by filing private complaint rather than pursuing allegations oflarger conspiracy or any crime other than enquired and tried in connectionwith Gulberg Society case being CR No. 67/2002. Having failed to do soand being party to the orders passed by this Court from time to time onthe special leave petition(s) filed by them against the order of the HighCourt, it is not open to argue in the teeth of such directions. It is now toolate for them to contend that the complaint dated 8.6.2006 be proceededas private complaint or be registered as FIR, much less to permit herto raise fresh allegations in 2013 by way of protest petition.

(bbbb) It is the submission of the SIT that it had done much morethan “looking into” the complaint albeit under the supervision of thisCourt by examining and questioning several persons and presentingperiodical reports to this Court including the final report before theMetropolitan Magistrate unlike in any other normal criminal case.

(cccc) At the end of the investigation done by the SIT, it has beennoticed that the allegation regarding larger conspiracy mentioned in thecomplaint dated 8.6.2006 was based on material which was either foundto be fabricated or unuseful, leave alone raising any ray of suspicion toproceed against the named offenders.

(dddd) Involvement of Babu Bajrangi unravelled from TehelkaTape transcript, does not have any impact on the allegation regardinglarger conspiracy, which alone needs to be dealt with in these proceedings.As matter of fact, Babu Bajrangi had been named as accused in GulbergSociety case being CR No. 67/2002 and the evidence against him hasbeen dealt with appropriately in that case, resulting in his conviction.His version in the tape, at best would be in the nature of extra judicialconfession to be used against him and not against any other person.(eeee) Allegation of larger conspiracy at the highest level can beproceeded further only if there is substantive evidence to establish thesame or could be so inferred on the basis of such substantive evidence.The substantive evidence of Mr. Sanjiv Bhatt, who allegedly claimed tobe present in the meeting of 27.2.2002, stands rebutted and falsified byall the other persons who were actually and physically present in thestated meeting, who in one voice mentioned that he was not present inthe meeting.

(ffff) As matter of fact, the SIT in the final report submittedallegation-wise and offender-wise, concluded that no offence has beenmade out, as alleged against any of the named offenders.

(gggg) The SIT had also considered the findings andrecommendations of NHRC while analysing the entire material collatedBby it during investigation. The same has been extensively discussed inthe final report from pages 312-320. Needless to underscore that thefindings and recommendations of the NHRC by itself cannot be thebasis to fasten criminal liability on the erring officials/administrators. Forthat, hard evidence indicating the acts of commission or omissionconstituting some offence is available either in the form of oral orCdocumentary evidence. There must be substantive piece of materialwhich will pass the muster of admissible evidence before the Court oflaw to fasten criminal liability. This is reinforced from the purport ofSection 15 of the Protection of Human Rights Act, 1993 or Section 6 ofthe 1952 Act, as well.

(hhhh) Similarly, some opinion formed or observation made in theenquiry report of any private forum/commission also cannot have anybearing on the criminal action to be instituted or pursued against anyerring official/administrator. Notably, in the present case, the complainanthas verily relied upon the affidavits of officials filed before the Nanavati-EShah Commission referring to revelation of relevant fact by certainpersons who themselves had no personal knowledge and their claimregarding presence in the official meeting is falsified on the basis ofoverwhelming evidence to the contrary. Merely because one personclaims about the existence of particular fact, does not give rise to atriable issue unless that version is corroborated by contemporaneousFevidence/material and more so when there is substantive evidence toindicate falsity of his claim. The private Commission founded itsobservations on the basis of disclosure made by some unidentifiedMinister. When in fact the overwhelming evidence indicated that nocabinet minister was present in the review meeting, which was attendedGonly by high officials presided over by the Chief Minister. Similarly, thepresence of Mr. Sanjiv Bhatt stands falsified by the consistent statementsgiven by high officials who were present in the meeting. All this hasbeen thoroughly analysed by the SIT and recorded in the final report. Inlight of such overwhelming material, it was not even case of slightestof suspicion against the highest functionary of the State for having madeHany utterances attributed to him by these persons. Those utterances

being the fulcrum of the allegation regarding State sponsored violence,all other incidental allegations and more particularly, unconnected withthe theory of larger conspiracy by the highest office, must fall to theground being unsubstantiated. To buttress this argument, reliance hasbeen placed on contents of final report from pages 245-260.

(iiii) It is argued that the police report or chargesheet ought tocontain crystalised case about the involvement of named offenders havingcommitted the offence under consideration and mere perception ofsuspicion is of no avail. That is the mandate underlying Section 169 readwith 173(2)(i)(d) of the Code. Such case cannot be made out on thebasis of personal diary entries as observed in Central Bureau ofInvestigation vs. V.C. Shukla & Ors.[90].

(jjjj) In other words, even if the material collated during theinvestigation discloses suspicion, that may not be sufficient for theinvestigating officer to opine that the offence has been made out, muchless have been committed by the offender/accused warranting hisprosecution in that regard. It is different matter that the Magistrate forissuing process, taking cognizance or framing charge against such person,can do so merely on the basis of strong suspicion. The scale of satisfactionto be reached by the investigating officer for being convinced that anoffence has been committed and the concerned person is involved in thecommission of that offence, is qualitatively different than mere case ofsuspicion. For that, the investigating officer must be certain, at leastprima facie (in his mind), that the material/statement on which heproposes to rely to prosecute any person would pass the muster of legallyadmissible evidence during the trial. Indeed, such view is tentativeview to be taken by the investigating officer before presenting thechargesheet for prosecuting named person for having committed(cognizable) offence in question on the basis of entirety of the materialin his possession. In other words, the job of an investigating agency doesnot and cannot end in merely establishing prima facie case of strongsuspicion. Whereas, he is obliged to unearth the entire truth and notmerely leave the job at the stage of strong suspicion. In doing so, theinvestigating officer does not merely rely upon the version of thecomplainant but is obliged to examine the matter from all angles includingto test the authenticity of the possibilities emerging therefrom and thenforming his opinion as to what he would believe to be the true course of

DEFG

Aevents. It must, therefore, follow that the investigating agency does notact as mere post office, but is obliged in law to examine the veracity,quality, believability of any material that is unearthed during theinvestigation and then to form opinion (in its mind) on the totality of thecircumstances as discernible from the entirety of the materials on handand record that in the form of police report under Section 173 of theBCode to be presented before the Magistrate. The investigating agency,by the nature of its duties, is required to adopt one version of the eventsthat it would believe to have occurred whilst submitting report underSection 173 of the Code. In presenting report to send the accused fortrial of being involved in commission of offence merely on the basis ofCsuspicious circumstances, therefore, would be case of abdication ofstatutory duty of the investigating agency and may not also serve thecause of justice.(kkkk) It is submitted that there is hardly any argument presentedand brought home by the appellant regarding shortcomings in the materialDadverted to in the final report or about the improper understanding of theSIT in that regard. Given the material and its analysis in the final report,the conclusion reached by the SIT is unassailable, namely, that no casehad been made out to proceed against the persons named in the complaintas offenders for offence of larger conspiracy or for that matter, anyother crime.E(llll) In substance, it is urged that no fault can be found with thesatisfaction recorded by the SIT in the final report that no case forproceeding against the named offender has been made out, much less ofhaving indulged in larger criminal conspiracy. Even the Magistrate hadapplied its mind to the totality of the material produced by the SITFalongwith the final report including the issues raised in the protest petitionwhilst rejecting the same and accepting the final report of the SIT. Tobuttress the argument that the investigation is the exclusive prerogativeof the SIT including to form opinion one way or the other on the basis ofthe material collated by it during investigation and it does not affect thepowers of the Magistrate to direct further investigation, reliance is placedGon the decisions of this Court in State of Bihar & Anr. vs. JAC Saldanha& Ors.[91], M.C. Abraham & Anr. vs. State of Maharashtra & Ors.[92]and Shariff Ahmed & Ors. vs. State (NCT of Delhi)[93].

91 (1980) 1 SCC 55492 (2003) 2 SCC 649H93 (2009) 14 SCC 184

SUBMISSIONS OF THE RESPONDENT – STATE OFGUJARAT

8. (a) The learned Solicitor General of India appearing for theState of Gujarat broadly adopted the arguments advanced on behalf ofthe SIT. In addition, he contended that the allegation regarding largerconspiracy is being pursued by Ms. Teesta Setalvad only out ofvengeance, so as to defame the entire State of Gujarat. The entire casein the complaint was mainly resting upon the official records and affidavitsof officials of the State of Gujarat filed before Nanavati-ShahCommission, to take forward allegation of State sponsored crime and oftargeting the minorities in the State. Appellant – Zakia Ahsan Jafri wasused as tool to further the said design, who in turn fell prey to theinfluence exerted by Ms. Teesta Setalvad and lent her name ascomplainant in the complaint dated 8.6.2006 being the widow of deceased– Mr. Ehsan Jafri, Member of Parliament. There is material in the finalreport suggestive of Ms. Teesta Setalvad having conjured facts andevidence including fabrication of documents by persons who were to beprospective witnesses of the complainant. It is not only case offabrication of documents, but also of influencing and tutoring the witnessesand making them depose on pre-typed affidavit, as has been noted in thejudgment of the High Court dated 11.7.2011 in Criminal MiscellaneousApplication No. 1692/2011[94]. That fact came to the fore in the admissiongiven by appellant – Zakia Ahsan Jafri during her cross-examination inthe Gulberg Society case being CR No. 67/2002. As matter of fact,the learned Solicitor General would submit that the SIT should havetaken steps to prosecute Ms. Teesta Setalvad for damning the electedrepresentatives, bureaucracy and police administration of the whole Stateof Gujarat for ulterior purposes. Even in the case of husband ofMs. Teesta Setalvad, the High Court had strongly deprecated his conduct.

(b) The learned Solicitor General took us through the judgment ofthe High Court, dated 12.2.2015 dealing with applications for grant ofanticipatory bail filed by Teesta Atul Setalvad and her husband – FirozkhanSayeedkhan Pathan in connection with CR No. 1/2014 for offencespunishable under Sections 420, 406, 468, 120-B of the IPC and Section72 of the Information Technology Act, 2000, pointing out observationstherein as to how the donation money collected by them in the name ofSabrang Trust on the representation that the same would be spent on

94 B.H. Somani, Registrar vs. State of Gujarat & Anr.

Apoor and needy persons affected by the mass violence, has been misusedand misappropriated for their personal pleasure and comfort. The HighCourt rejected that application having found that custodial interrogationof the applicants would be necessary. Relying on adverse observations,it is urged that the present proceedings were not genuine proceedingsand the appellant has been set up, who is unaware about the real position.BReliance was also placed on the decision of this Court in TestaSetalvad[95], dealing with the powers of police officer to seize certainproperty in the course of investigation and the observations made by thisCourt against Ms. Testa (Teesta) Setalvad and her husband for rejectingthe said appeal challenging the authority of the police officer to effectCseizure.(c) In substance, it is argued on behalf of the State of Gujarat thatthe complaint dated 8.6.2006 had to be proceeded with only because ofthe indulgence shown by this Court on 27.4.2009[96] by issuing directionto the SIT to “look into” it and do the needful, whereafter subsequentDsteps have been taken by the SIT, strictly under the supervision of thisCourt including close monitoring by the Amicus Curiae appointed bythis Court. It is, therefore, not open to the appellant to question the wisdomof this Court in accepting the investigation made by the SIT as completed;and also directing the SIT to present its report before the Magistratetaking cognizance in Gulberg Society case being CR No. 67/2002 byEreckoning the report as one under Section 173 of the Code. This Courtnot only selected the major nine cases, which were required to beinvestigated under Court monitoring by the SIT appointed by this Court,but also selecting the SIT members who enjoyed high reputation andwide experience behind them in reaching the high position. Besides, thisFCourt empowered the SIT to not only fairly investigate, but to ensurethat the trial in connection with those cases is not compromised in anymanner, for which it could recommend the names of advocates as publicprosecutors and submit periodical report to this Court. This Court alsoensured fair trial by requesting the Chief Justice of the concerned High

Court to personally identify Judges to preside as Special Court forGconducting the trial of those selected cases. Such is the gamut of directionsand sui generis procedure adopted by this Court in relation to thecomplaint dated 8.6.2006, whilst allowing the trial in Gulberg Society

95 supra at Footnote No. 62H96 supra at footnote Nos. 4 and 17

case being CR No. 67/2002 to proceed parallelly. Indubitably, theinvestigation could be done by the SIT only as per the remit given to itand on the same logic even the Courts ought to deal with the matter onthe same scale.

(d) He invited our attention to Nanavati-Shah Commission reportand the conclusion recorded therein including about the prompt measurestaken by the State Government, immediately after the incident in questionand thereafter to restore normalcy. The State Government had to dealwith situation which was unparalleled and the entire State administrationwas overrun by such unprecedented mass violence.

(e) In the end, he submits that even though the issues raised bythe appellant are unfounded and unsubstantiated, the matter is beingpursued with full vigour at the behest of Ms. Teesta Setalvad, whosesole intention is to keep the matter alive as rightly contended by thelearned counsel for the SIT. The learned Solicitor General argues thatthere is no need to have relook at the opinion of the SIT or case forfurther investigation as propounded by the appellant. Even in hissubmission, neither the opinion formed by the SIT after thoroughinvestigation and proper analysis of the entire material collated by itduring investigation, is flawed nor the final order of the Magistrate toaccept the final report submitted by the SIT and in rejecting the protestpetition or that of the High Court in that regard, requires further scrutinyat the hands of this Court under Article 136 of the Constitution of India.He has, therefore, prayed for dismissal of this appeal.

9. We have heard Mr. Kapil Sibal, learned senior counsel for theappellant, Mr. Mukul Rohatgi, learned senior counsel for the SIT andMr. Tushar Mehta, learned Solicitor General for the State of Gujarat.

CONSIDERATION

10. It is cardinal that upon receipt of the complaint such as dated8.6.2006, the concerned police officer, if has reason to suspect thecommission of an offence referred to therein, ought to proceed with theinvestigation consequent to registration of FIR under Section 154, sinceit discloses commission of cognizable offence. As that did not happen,the appellant had to approach the High Court for issuing direction toregister the stated complaint as FIR. Had the FIR been registered bythe station officer on his own, he would have been obliged to proceed

Afurther as expounded in H.N. Rishbund[97]. In this decision, the Court,inter alia, noted thus: -

“….. When information of the commission of cognizable offenceis received or such commission is suspected, the appropriate policeofficer has the authority to enter on the investigation of the same(unless it appears to him that there is no sufficient ground). Butwhere the information relates to non-cognizable offence, heshall not investigate it without the order of competent Magistrate.Thus it may be seen that according to the scheme of the Code,investigation is normal preliminary to an accused being put upfor trial for cognizable offence (except when the Magistratetakes cognizance otherwise than on police report in which casehe has the power under Section 202 of the Code to orderinvestigation if he thinks fit). Therefore, it is clear that when theLegislature made the offences in the Act cognizable, priorinvestigation by the appropriate police officer was contemplatedas the normal preliminary to the trial in respect of such offencesunder the Act. In order to ascertain the scope of and the reasonfor requiring such investigation to be conducted by an officer ofhigh rank (except when otherwise permitted by Magistrate), itis useful to consider what “investigation” under the Codecomprises. Investigation usually starts on information relating tothe commission of an offence given to an officer in charge of apolice station and recorded under Section 154 of the Code. Iffrom information so received or otherwise, the officer in chargeof the police station has reason to suspect the commission of anoffence, he or some other subordinate officer deputed by him,has to proceed to the spot to investigate the facts andcircumstances of the case and if necessary to take measures forthe discovery and arrest of the offender. Thus investigationprimarily consists in the ascertainment of the facts andcircumstances of the case. By definition, it includes “allthe proceedings under the Code for the collection ofevidence conducted by police officer”. For the abovepurposes, the investigating officer is given the power to requirebefore himself the attendance of any person appearing to beacquainted with the circumstances of the case. He has also the

authority to examine such person orally either by himself or by aduly authorised deputy. The officer examining any person in thecourse of investigation may reduce his statement into writing andsuch writing is available, in the trial that may follow, for use in themanner provided in this behalf in Section 162. Under Section 155the officer in charge of police station has the power of makinga search in any place for the seizure of anything believed to benecessary for the purpose of the investigation. The search has tobe conducted by such officer in person. subordinate officermay be deputed by him for the purpose only for reasons to berecorded in writing if he is unable to conduct the search in personand there is no other competent officer available. The investigatingofficer has also the power to arrest the person or persons suspectedof the commission of the offence under Section 54 of the Code. Apolice officer making an investigation is enjoined to enter hisproceedings in diary from day-to-day. Where such investigationcannot be completed within the period of 24 hours and the accusedis in custody he is enjoined also to send copy of the entries in thediary to the Magistrate concerned. It is important to notice thatwhere the investigation is conducted not by the officer in chargeof the police station but by subordinate officer (by virtue of oneor other of the provisions enabling him to depute such subordinateofficer for any of the steps in the investigation) such subordinateofficer is to report the result of the investigation to the officer incharge of the police station. If, upon the completion of theinvestigation it appears to the officer in charge of the policestation that there is no sufficient evidence or reasonableground, he may decide to release the suspected accused, ifin custody, on his executing bond. If, however, it appearsto him that there is sufficient evidence or reasonableground, to place the accused on trial, he is to take thenecessary steps therefore under Section 170 of the Code.In either case, on the completion of the investigation hehas to submit report to the Magistrate under Section 173of the Code in the prescribed form furnishing variousdetails. Thus, under the Code investigation consists generally ofthe following steps: (1) Proceeding to the spot, (2) Ascertainmentof the facts and circumstances of the case, (3) Discovery andarrest of the suspected offender, (4) Collection of evidence relating

DEF

Ato the commission of the offence which may consist of (a) theexamination of various persons (including the accused) and thereduction of their statements into writing, if the officer thinks fit,(b) the search of places or seizure of things considered necessaryfor the investigation and to be produced at the trial, and (5)Formation of the opinion as to whether on the materialBcollected there is case to place the accused before aMagistrate for trial and if so taking the necessary steps forthe same by the filing of charge-sheet under Section 173.The scheme of the Code also shows that while it is permissiblefor an officer in charge of police station to depute someCsubordinate officer to conduct some of these steps in theinvestigation, the responsibility for every one of these steps is thatof the person in the situation of the officer in charge of the policestation, it having been clearly provided in Section 168 that when asubordinate officer makes an investigation he should report theresult to the officer in charge of the police station. It is alsoDclear that the final step in the investigation, viz. theformation of the opinion as to whether or not there is acase to place the accused on trial is to be that of the officerin charge of the police station. There is no provision permittingdelegation thereof but only provision entitling superior officersEto supervise or participate under Section 551.”

(emphasis supplied)”

11. This Court in Dayal Singh[98]noted that the investigating officeris obliged to act as per the Police Manual and known canons of practicewhile being diligent, truthful and fair in his/her approach and investigation.

FIt has been noted in the reported decision that an investigating officer iscompletely responsible and answerable for the manner and methodologyadopted in completing his investigation[99]. Concededly, upon completionof investigation, the investigating officer is obliged to submit report settingout prescribed details, to the Magistrate empowered to take cognizance

of the offence referred to therein, without unnecessary delay. The reportGso presented is the conclusion reached by the investigating officer onthe basis of materials collected during investigation. The duty of theinvestigating officer is to collate every relevant information/material during

98 supra at Footnote No. 57

99 Also see JAC Saldanha & Ors. (supra at Footnote No. 91), M.C. Abraham (supraHat Footnote No. 92) and Shariff Ahmed (supra at Footnote No. 93)

the investigation, which he must believe to be the actual course of eventsand the true facts unraveling the commission of the alleged crime andthe person involved in committing the same. He is expected to examinethe materials from all angles. In the event, there is sufficient evidence orreasonable ground that an offence appears to have been committed andthe person committing such offence has been identified, the investigatingofficer is obliged to record his opinion in that regard, as required bySection 173(2)(i)(d) of the Code. In other words, if the investigatingofficer intends to send the accused for trial, he is obliged to form firmopinion not only about the commission of offence, but also about theinvolvement of such person in the commission of crime.

12. Such opinion is the culmination of the analysis of the materialscollected during the investigation - that there is “strong suspicion” againstthe accused, which eventually will lead the concerned Court to thinkthat there is ground for “presuming” that the accused “has” committedthe alleged offence; and not case of mere suspicion. For being caseof strong suspicion, there must exist sufficient materials to corroboratethe facts and circumstances of the case; and be of such weight that itwould facilitate the Court concerned to take cognizance of the crimeand eventually lead it to think (form opinion) that there is ground “forpresuming that the accused has committed an offence”, as alleged – soas to frame charge against him in terms of Section 228(1) or 246(1) ofthe Code, as the case may be. For taking cognizance of the crime or toframe charges against the accused, the Court must analyze the reportfiled by the investigating officer and all the materials appended theretoand then form an independent prima facie opinion as to whether thereis ground for “presuming” that the accused “has” committed an offence,as alleged. (It is not, “may” have or “likely” to have committed an offence,but ground for presuming that he has committed an offence). TheMagistrate in the process may have to give due weightage to the opinionof the investigating officer. If such is to be the eventual outcome of thefinal report presented by the investigating officer, then there is nothingwrong if he applies the same standard to form an opinion about thematerials collected during the investigation and articulate it in the reportsubmitted under Section 173 of the Code. It may be useful to refer to thedecisions adverted to in Afroz Mohd. Hasanfata[100] including in the

case of Ramesh Singh[101]and I.K. Nangia[102].

100 supra at Footnote No. 31

101 supra at Footnote No. 41

102 supra at Footnote No. 42

CDEFG

A13. After cogitating over the rival submissions, the foremost issuethat needs to be answered is about the remit of the SIT to investigate thematter further and correspondingly that of the Magistrate, in the peculiarfacts of the present case. It is noticed that appellant had filed complaintdated 8.6.2006 by which time the FIR in respect of the incident unfoldedon 28.2.2002 in Gulberg Society including involving the dastardly attackBon the husband of the appellant and others was already registered andproceeded further by the local police as per the provisions of the Code.Contemporaneously, in the proceedings filed before this Court includingby the NHRC, the grievance regarding improper investigation in respectof several cases registered across the State of Gujarat in reference toCthe mass violence during the relevant period including four crimes inrespect of Gulberg Society episode were being examined. During thesame time, appellant was pursuing her complaint dated 8.6.2006addressed to the Director General of Police, Gujarat. As no responsewas received, the appellant was advised to file application before theHigh Court for issuing direction to the Gujarat police to register the saidDcomplaint as FIR. That petition was finally dismissed by the High Courton 2.11.2007, whereby appellant was relegated to file appropriate privatecomplaint and invoke Section 190 read with Section 200 of the Code.This decision was assailed by filing SLP(C) No. 1088/2008, whichindisputably was heard (allowed to be heard by the appellant withoutEany demur) along with the petitions pending before this Court includingthe petition filed by the NHRC.

14. The common order passed by this Court on 26.3.2008[103] leavesno manner of doubt that the four crimes registered in respect of GulbergSociety were to be investigated further by the SIT constituted by thisFCourt in terms of the same order. In respect of the complaint submittedby appellant dated 8.6.2006, specific order came to be passed by thisCourt on 27.4.2009[104], thereby directing the SIT to look into the matterand take steps as required by law and submit report to this Court withinthree months. Finally, the SLP filed by the appellant and Ms. TeestaSetalvad was disposed of on 12.9.2011[105] until which date, the SITGcontinued with the investigation/enquiry into the stated complaint andsubmitted appropriate report(s) to this Court. We must assume, and there

103 supra at Footnote Nos. 6 and 16

104 supra at Footnote Nos. 4 and 17H105 supra at Footnote No. 26

could be no other import or assumption, that this Court was all throughoutconscious of the fact that the four crimes registered pertaining to theGulberg Society including the gruesome killing of husband of appellantand others, were already being investigated by the SIT and proceededfor trial consequent to filing of the chargesheet/supplementary chargesheetby the SIT. Concededly, this Court by an express order, had permittedthose trials to continue further. In those trials, the allegations of criminalconspiracy and the commission of crime pursuant to such criminalconspiracy had already been put in issue. In that sense, the limited aspectof the contents of the complaint dated 8.6.2006, which remained to bedealt with was about the allegations of larger criminal conspiracy at thehighest level resulting into mass violence across the State during therelevant period.15. In other words, the steps taken by the SIT during the pendencyof proceedings before this Court and even after the disposal of the SLPfiled by the appellant on 12.9.2011[106], were under the clear directionsand aegis of this Court. The tenor of directions issued by this Court areascribable to the plenary powers exercised under Article 142 of theConstitution. In that, this Court consciously allowed the (four) crimesregistered concerning Gulberg Society unfolded on 28.2.2002 to proceedfor trial, including the charge of criminal conspiracy for commission ofsuch offence; and at the same time, showed indulgence to the appellantby directing the SIT to look into the complaint dated 8.6.2006 – obviously,in respect of matters which were not overlapping with the trial(s)pertaining to Gulberg Society case(s) and other cases investigated bythe SIT.

16. Notably, this Court consciously directed, vide order dated7.2.2013[107], to treat the statements recorded by the SIT in connectionwith the investigation/enquiry concerning the complaint of appellant asmade under Section 161 of the Code; and to form part of the reportsubmitted by the SIT to the Court concerned, which had taken cognizanceof Crime Report No. 67/2002 concerning Gulberg Society, in terms oforder dated 12.9.2011[108], treating it as police report under Section173(2) of the Code. This presupposes that the further investigation bythe SIT was on the assumption that the complaint dated 8.6.2006 may

106 supra at Footnote No. 26

107 see para 5(y) above

108 supra at Footnote No. 26

Acontain new information/material other than already enquired into inconnection with Crime Report No. 67/2002 – as permissible under Section173(8) of the Code. No more and no less.

17. All the aforestated circumstances and the judicial orders passedby this Court from time to time on the petition filed by the appellantBwould go to show that this Court had implicitly rejected her prayer toregister the stated complaint as an independent FIR or for that matter,as an independent private complaint for being proceeded further. Thesuccessive orders passed by this Court and directions issued to SITwere only to look into the aspects that were not part of the casesinvestigated by the SIT including the (four) criminal cases concerningCGulberg Society - as the same were already registered and proceededfor trial, in particular, criminal conspiracy hatched in the commission ofthose crimes. Inasmuch as, all other aspects already formed part ofenquiry and chargesheet/trial of those cases. Not only that, even theother eight cases assigned to SIT by this Court covered similar mattersDincluding allegations of criminal conspiracy. To put it differently, whatremained to be looked into was only about the “allegations of largerconspiracy at the highest level” which resulted into causing mass violenceacross the State during the relevant period.18. It is well settled that conspiracy can be hatched at differentElevels. Thus, the conspiracy hatched at the middle or lower level in theconcerned cases filed across the State, including the Gulberg Societyincident unfolded on 28.2.2002 involving the gruesome killing of Mr. EhsanJafri (husband of the appellant) and others, covering nine sets of casesassigned to the SIT by this Court already covered the expanse of criminalconspiracy concerning those cases. It was urged by the SIT that theFtrial Court in Gulberg trial had disregarded the case of conspiracy evenamongst the accused sent for trial in that case and had opined that therewas no pre-planned intention to commit violence at the Gulberg Society.If so, it is unfathomable that any larger conspiracy had been hatched atthe higher level, as alleged. In any case, the remit of the SIT in terms ofGdirections given by this Court in relation to the complaint filed by appellantdated 8.6.2006 ought to be limited to the allegations of the larger criminalconspiracy at the highest level, which allegedly resulted in mass violenceacross the State during the relevant period. In that backdrop, we mayhave to analyze the case on hand.

19. Be it noted that after this Court, vide order dated 27.4.2009[109],directed the SIT to look into the complaint of appellant dated 8.6.2006,the SIT moved into action and culled out the summary of allegationsexposited in the stated complaint. The SIT identified broadly thirtyallegations in the complaint which read thus: -

“8. The following is the summary of allegations narrated in thecomplaint dated 08.06.2006 and the major evidence in brief insupport of the charges about commission of offences u/s 302 r/w120-B IPC, Sections 193 r/w 114, 186 & 153-A, 186, 187 IPC,Section 6 of Commission of Inquiry Act, The Gujarat Police Actand the Protection of Human Rights Act, 1991:

(i) Instruction by Shri Narendra D. Modi, Chief Minister to DGP,the Chief Secretary and other senior officials to (allow to) givevent to the Hindu anger on the minority muslims in the wake ofGodhra incident during the Meeting held on 27.02.2002 evening inGandhinagar, as testified in Affidavit No. 4 of R.B. Sreekumar.

(ii) CM’s decision to bring dead bodies of those killed in Godhratrain fire in Ahmedabad and parade them in Ahmedabad City astestified by Shri Ashok Narayan in his cross-examination beforethe Nanavati Commission.

(iii) Numerous illegal instructions given verbally (by CM) to officialsas detailed in 3[rd] affidavit dated 09.04.2005 by R.B. Sreekumar tothe Nanavati Commission.

(iv) Data in the ‘Concerned Citizens Tribunal’ Report by panel ofJudges, Justice Sawant and Justice V.R. Krishna Iyer as in para10 of the complaint dated 08.06.2006 wherein it was mentioned,inter alia, as : What transpired in the days that followed the Godhraincident began with the Chief Minister of the State announcing on27.02.2002 through Akashvani Radio that there was an ISIconspiracy, and deciding against the advice of the Godhra Collector,Smt. Jayanti Ravi, to take bodies of the burnt Kar sevaks in aceremonial procession by road to Ahmedabad. The tragic Godhrakillings were used and manipulated to justify pre-orchestrated masscarnage that enjoyed the political sanction of the constitutionallyelected Government Top level meetings were held between theChief Minister, some of his Cabinet colleagues and top level

109 supra at Footnote Nos. 4 and 17

bureaucrats at which illegal instructions were issued to performillegal acts, Proof of this was documented by Citizens Tribunalconstituted and headed by former Judge of the Hon’ble SupremeCourt, when former Minister (Late Shri Haren Pandya) testifiedabout the details.

(v) Cabinet Ministers I.K. Jadeja and Ashok Bhatt were positionedin the DGP office and Ahmedabad City Police Control Roomrespectively by CM. DGP Chakravarti was critical of the MinisterI.K. Jadeja remaining in his chamber, as testified by R.B.Sreekumar in his fourth affidavit.

(vi) Officers from field executive posts were transferred (by theCM), in the thick of riots in 2002 despite DGP’s objection so as tofacilitate placement of those who were willing to subvert the systemfor political and electoral benefits as narrated in para 67 of thecomplaint dated 08.06.2006, wherein instances of punishment, illtreatment etc. are listed in respect of the following officers: (1)Shri Rahul Sharma, IPS, (2) Shri Vivek Shrivastava, IPS, (3) ShriHimanshu Bhatt, IPS, (4) Shri M.D. Antani, IPS, (5) Shri R.B.Sreekumar, IPS and (6) Shri Satishchandra Verma, IPS.

(vii) Senior officials were rewarded with undue benefits, evenwhile their conduct was under the scrutiny of NanavatiCommission, as narrated in Para 68 of the complaint dated08.06.2006, wherein “Rewards” for collaborating with the illegalplans of CM/BJP during 2002 riots and afterwards are listed inrespect of the following officers: (1) Shri G. Subba Rao, IAS, thethen Chief Secretary, (2) Shri Ashok Narayan, IAS, the then ACS(Home), (3) Dr. P. K. Mishra, IAS, the then PS to CM, (4) ShriA. K. Bhargava, IPS, (5) Shri P. C. Pandey, IPS (6) Shri KuldeepSharma, IPS, (7) Shri M. K. Tandon, IPS, (8) Shri DeepakSwaroop, IPS, (9) Shri K. Nityanandam, IPS, (9) Shri RakeshAsthana, IPS; (10) Shri A.K. Sharma, IPS, (11) Shri ShivanandJha, IPS, (12) Shri S. K. Sinha, IPS, (13) Shri D. G. Vanzara, IPS.

(viii) No follow up action was taken (by the Gujarat Government/CM) on the reports sent by R.B. Sreekumar on 24.04.2002,15.06.2002, 20.08.2002 and 28.08.2002·about anti-minority stanceof the Administration. Copies of these reports are appended insecond Affidavit dated 06.10.2004 of R.B. Sreekumar to theNanavati Commission.

(ix) Indictment by the Hon’ble Supreme Court about injustice doneto minority community and riot victims in the investigation of riotcases in respect of (1) Bilkis Bano case and (2) Best Bakerycase, as narrated in paras 13 and 14 of the complaint dated08.06.2006.

(x) Partisan investigations were conducted betraying prejudiceagainst riot victims, as indicated by Rahul Sharma, then SP,Bhavnagar District during his cross-examination before theNanavati Commission, as noted in Para 18 of the complaint dated08.06.2006.

(xi) CM Shri Narendra Modi did not visit the riot affected areas inthe initial days, though he visited Godhra Railway Station on27.02.2002 itself.

(xii) press statement was made by Shri Narendra Modi that thereaction against the Muslim community was the operation ofNewton’s law of action.

(xiii) No direction was given by Shri Narendra Modi to Hinduorganizations against the observance of Bandh on 28.02.2002.Bandhs had been declared illegal by Kerala High Court.

(xiv) There was undue delay in requisition and deployment ofarmy, though anti-minority violence had broken out on 27.02.2002afternoon itself in cities of Vadodara, Ahmedabad etc.

(xv) Pro-VHP advocates were appointed as Public Prosecutorsin riot cases as noted in Para 4 under the caption ‘Present Situation’in the complaint dated 08.06.2006, wherein appointments ofadvocates Shri Chetan Shah (as District Government Pleader),Shri V.P. Atre (as Special PP in the Gulberg case), Shri RaghuvirPandya (as Special PP in the Best Bakery case), Shri Dilip Trivedi(as Special PP in the Sardarpura case), Shri Rajendra Darji (asSpecial PP in the Dipda Darwaja case), Shri Piyush Gandhi (PPin Panchmahal District), have been questioned.

(xvi) Officers at grass-root level were not transferred as per StateIntelligence Bureau’s recommendation till the arrival of Shri K.P.SGill as Advisor to CM, as indicated by Sreekumar in his secondaffidavit dated 06.10.2004 to the Nanavati Commission.

(xvii) Failure to take action against the print media makingcommunally inciting reports though State Intelligence Bureau andsome field officers had recommended for action, as noted in thefirst Affidavit dated 06.07.2002 of R. B. Sreekumar during hiscross-examination before the Nanavati-Shah Commission on31.08.2004.

(xviii) State Home Department gave misleading reports aboutnormalcy in the State to Central Election commission for ensuringearly Assembly Elections. The assessment of the HomeDepartment was adjudged as false by the Election Commission inits order dated 16-08-2002. As per the Register for recording verbalinstructions from higher formations kept by ADGP (Shri R.B.Sreekumar), as noted in his third Affidavit, he was directed by theHome Department officials to give favourable reports about lawand order for facilitating holding of early elections.

(xix) The State Home Secretary Shri G.C. Murmu was presumablydetailed for tutoring, cajoling and even intimidating officials deposingbefore the Nanavati Commission so that they do not tell the truthand harm the interests of CM and ruling party, as narrated in thirdAffidavit of Shri R.B. Sreekumar.

(xx) Shri G.C. Murmu’s exercise was for ensuring that officialswill not file affidavits relating to the second terms of reference tothe Nanavati Commission about the role of CM and other Ministersin the riots as narrated in Para 52 of the complaint dated08.06.2006 wherein gross dereliction of duty has been alleged innot filing Affidavits relating to second terms of reference to theCommission on the part of 16 specifically named officials includingtop ranking IAS/IPS officers.

(xxi) No action was initiated against senior police officers by theHome Department for their grave dereliction of duty in supervisionof investigation of serious offences as noted in fourth Affidavit(Para 94) of Shri R.B. Sreekumar.

(xxii) No departmental action was taken against Shri Jadeja, thethen Superintendent of Police, Dahod District for his misconductdespite recommendation by CBI who investigated the Bilkis Banocase as per the direction of Hon’ble Supreme Court.

(xxiii) The CD regarding telephone calls by BJP leaders and policeofficers during riots was not probed into by the InvestigatingOfficers of the Naroda Patia and Gulberg Society cases. TheCD was produced by Rahul Sharma, SP, CBI before the NanavatiCommission.

(xxiv) Conducive situation was not created for rehabilitation ofriot victims, though contrary claim is made by the StateAdministration in its report to NHRC. Instead, the riot victimswere pressurized for compromising with the perpetrators ofviolence, as condition precedent for their safe return asrehabilitation.

(xxv) Police inaction facilitated riots as part of conspiracy, asdetailed in paras 13, 14, 61 and 62 of the complaint dated08.06.2006. In Para 13 of the complaint, some of the ‘glaringexamples of State sponsored events’ are given. In para 61 of thecomplaint, it is alleged that over two dozen survivors of the NarodaPatiya massacre case have confirmed that they made over ahundred distress calls to Shri P.C. Pande, then Commissioner ofPolice but that his mobile was permanently switched off. Therewas similar callous response from most of the DCPs and Addl.CPs (of Ahmedabad City) as also by Shri Tuteja, the thenCommissioner of Police, Baroda. In para 60 of the complaint,telephone calls made from Gulberg Society to Shri P.C. Pandeand the DGP are alleged but no police action despite presence ofthree mobile vans near the spot. It is also alleged in Para 61 of thecomplaint that police was aiding mobs who were attacking Muslimsand that on 28[th] February, of the 40 persons shot dead by police inAhmedabad City, 36 were Muslims. In Para 62 of the complaint,it is alleged that police acted as mute spectators to acts oflawlessness, offences, were not investigated properly, real culpritswere not arrested and no timely preventive action was taken etc.

(xxvi) No minutes of the meetings held by CM and seniorbureaucrats were maintained and instructions were mostlyconveyed through phone which served the twin objective of (i)field officers carrying out the conspiracy of pogrom against theminorities and (2) avoidance of the subsequent monitoring of actionsby jurisdictional officers.

(xxvii) No action was taken against officers like K. Chakravarthi,then DGP, P.C. Pandey, then Commissioner of Police, AhmedabadCity, Ashok Narayan, then Additional Chief Secretary and largenumber of senior functionaries in Government who filed incomplete,inaccurate, vague and inadequate affidavits to the NanavatiCommission, as narrated in Paras 54, 55, 56 of the complaint dated08.06.2006.

(xxviii) Slack review of post riot cases as ordered by the Hon’bleSupreme Court in 2004. This was achieved by entrusting this workto those senior officers who are willing to act according to politicalinterests of BJP and CM, as narrated in Para 84 of the complaintdated 08.06.2006.

(xxix) Nepotism practiced in postings, transfers; promotions etc.,as narrated in para 85 of the complaint for facilitating the on-going subversion of the criminal justice system.

(xxx) The fact that victims of riots and police firings werepredominantly of the Muslim community, will establish that rioters,the administration, cohorts of the ruling party (BJP) were movingin collaboration for achieving the satanic objectives of CM.Statistics in this regard are given in the second Affidavit dated06.10.2004 (Para 3/Appendix V) of Sreekumar to the NanavatiCommission.”

In addition, SIT took note of the following two allegations: -

“ALLEGATION NO. XXXI:

That secret meeting was held late in the evening of 27-02-2002in Lunawada village of Sabarkantha District and that telephonecall was made between 3 pm & 6 pm from the house of oneDr. Yogesh Ramanlal Pandya from Godhra to Dr. Anil Patel (amember of Gujarat Doctor’s Cell of BJP) intimating him aboutthe meeting. Further, another call was also made toDr. Chandrakant Pandya (from Kalol), Chairman, Police HousingCorporation. Shri Ashok Bhatt, state Health Minister, who wasthen sitting in the Godhra Collectorate was also intimated aboutthe meeting. Shri Prabhatsinh Chauhan, the then Transport Minister,who hails from Panchmahal was reportedly also called to attendand one Shri A.P. Pandya was also present in the meeting. It isfurther alleged that the phone calls were made to invite 50 top

people of BJP/RSS/BD/VHP and the plan was to assemble atsomeone’s house in Lunawada (Sabarkantha District). It is alsoalleged that 50 top people met at this undisclosed destination anddetailed plans were made on the use of kerosene, patrol for arsonand other methods of killing, but the State IB did not or could nottrack such meeting and preparations for the gruesome violencethat was to follow.

ALLEGATION NO. XXXII:

meeting was held by Shri Kalubhai Hirabhai Maliwad at villageBorwai near Pandawada on 28-02-2002. This meeting earlierscheduled to be held at the house of one Shri Shankar Master butdue to large crowd, it was held at Baliyadev Mandir. It is allegedthat around 5000-6000 activists of Bajrang Dal including ShriKalubhai Maliwad, Somabhai Rumalbhai of Kaliakuvawala,Jignesh Pandya, Prakashbhai of Borwai village, Amrutbhai ManilalPanchal, Anil Modi, Sarpanch, Sanjay Ishwarbhai Panchal, VijayDamor, Khema Kalu and Damor Somabhai besides others werepresent in the meeting held to plan the attacks on the minorities inthe surrounding areas. Smt. Teesta Setalvad has stated that thisinformation was given to her by her sources namely Shri MehboobRasul Chauhan of Lunawada and Shri Nasirbhai Kalubhai Sheikhof Pandarwada.”

20. The SIT then analyzed the materials collated during theinvestigation allegation-wise, offender-wise, witness-wise and inreference to the observations of the learned Amicus Curiae – Mr. RajuRamachandran, to record its opinion in the final report (consisting ofclosely printed/typed 270 pages in its Volume-I, filed as Annexure P-17at pages 236-467 of the Convenience Compilation of respondent No. 2– SIT) submitted to the concerned Court. The SIT summed up as follows:-

To sum up, Shri A.K. Malhotra, Member, SIT has conductedan inquiry into the complaint made by Smt. Jakia Nasim as perthe orders of the Hon’ble Supreme Court of India passed on27.04.2009. In compliance to the said order report was submittedby the SIT to the Hon’ble Supreme Court of India on 13.05.2010,in which further investigation u/s 173(8) Cr.PC was suggested to

be conducted in respect of Shri Gordhan Zadafia, Shri M.K.Tandon, Jt. CP and Shri P.B. Gondia, DCP, Zone-IV, AhmedabadCity. Further investigation in the matter was conducted by theundersigned (Shri Himanshu Shukla, DCP; Crime Branch,Ahmedabad City) under the supervision of Shri Y.C. Modi, Addl.DG & Member, SIT and report in the matter was submitted tothe Hon’ble Supreme Court on 17.11.2010. Both the aforesaidreports were given to Shri Raju Ramchandran, Sr. Advocate, whohad been appointed as Amicus Curiae in the matter by the Hon’bleSupreme Court of lndia. The Amicus Curiae submitted his InterimReport in the matter to the Hon’ble Supreme Court of India on20.01.2011, vide which he suggested further investigation in respectof some of the issues.

In compliance to the order passed by the Hon’ble Supreme Courtof India on 15.03.2011, to conduct further investigation into thematter u/s 173 (8) Cr. PC, Shri Himanshu Shukla, DCP, CrimeBranch carried out further investigation under the overallsupervision of Chairman, SIT Shri R.K. Raghavan, Shri Y.C. Modi;Addl. DG & Member, SIT and Shri A.K. Malhotra, Member, SITand another report was submitted to the Hon’ble Supreme Courtof India on 25.04.2011. The Hon’ble Supreme Court of Indiahanded over the said report to the Ld. Amicus Curiae for hisexamination and independent opinion.

The Ld. Amicus Curiae accordingly examined the SITreports and also interacted with some of the witnessesincluding the police officers and submitted his report tothe Hon’ble Supreme Court of India on 25.07.2011. TheHon’ble Supreme Court of India after careful consideration ofthe matter passed an order on 12.09.2011, directed the Chairman,SIT to forward Final Report along with the entire materialcollected by the SIT to the Court which had taken cognisance ofFIR of I CRNo. 67/2002 of Meghaninagar P.S., as required u/s173(2) Cr.PC of the Court.

It may be mentioned here that the Ld. Amicus Curiaehas agreed with the various recommendations made by theSIT on the different issues inquired into/investigated bythe SIT. However, the Ld. Amicus Curiae is of the viewthat at this prima facie stage offences u/s 153A(1)(a)&(b),

153B(1)(c), 166 and 505(2) IPC are made out against ShriNarendra Modi regarding the statement made by him inthe meeting on 27.02.2002. In this connection, as discussed,above SIT is of the view that the offences under theaforesaid sections of law are not made out against ShriNarendra Modi.

In the light of the aforesaid facts, closure report is beingsubmitted for favour of perusal and orders.

(Himanshu Shukla)DCP &I0, SITGandhinagar”(emphasis supplied)

Be it noted that even the learned Amicus Curiae had broadlyagreed with the recommendations made by the SIT in the final report,but had opined that at prima facie stage offences under Sections153A(1)(a) & (b), 153B(1)(c), 166 and 505(2) of the IPC have beenmade out against the then Chief Minister.

21. This final report dated 8.2.2012 was taken exception to by theappellant by filing protest petition before the Magistrate on 15.4.2013raising diverse grounds including adverted to in paragraph 6(c) above.

22. In dealing with the protest petition, the Magistrate in the factsof the present case, could have and was obliged to examine the challengeonly in the context of the scope for investigation of allegations referredto in the complaint dated 8.6.2006 including the other materials collectedduring the investigation by the SIT concerning the larger criminalconspiracy at the highest level, resulting into mass violence across theState. This is reinforced from the observation made by this Court inorder dated 7.2.2013[110], wherein it has been clearly mentioned that thestatements recorded in the enquiry undertaken by the SIT pursuant tothe directions of this Court shall only be used in the proceedings relatingto the complaint dated 8.6.2006 and shall not be used for any otherpurpose or in connection with any other case. This clarification alsoapplied to the criminal case being Crime report No. 67/2002 pertainingto the incident in Gulberg Society, trial whereof was at an advancedstage (and soon disposed of on 26.12.2013).

A23. As regards that trial, all information regarding the charge ofcriminal conspiracy was collated during the investigation by SIT in termsof order dated 26.3.2008[111] including from persons who wanted to makestatement before the SIT for giving versions of the alleged crimes beinginvestigated and to be tried in terms of the said order. It has been furtherclarified in the order dated 7.2.2013[112] by this Court that the presentBorder is confined to the facts and circumstances of the complaint dated8.6.2006 and shall not be treated as precedent, “in any other case”.These observations are clear pointer to the sui generis approach of thisCourt in the present case being fully aware that no FIR had beenregistered at the instance of appellant on the basis of the complaint datedC8.6.2006; nor the trial in connection with CR No. 67/2002 concerningGulberg Society had been stayed pending investigation into the statedcomplaint. Indisputably, the directions and clarifications given by thisCourt from time to time in the present case have not been put in issuenor any grievance had been set forth from any quarter at any stage.Resultantly, the ordinary course to be adopted by the Magistrate underDthe Code in other cases cannot be invoked in the present case. In thatsense, the enquiry by the Magistrate should also have confined itself tothe limited aspect of allegations regarding larger criminal conspiracy atthe highest level, referred to in the complaint dated 8.6.2006, resulting incausing of mass violence across the State.E

24. Coming back to the allegations regarding larger conspiracy atthe highest level, it is founded on the alleged utterances made by thethen Chief Minister in an official meeting while addressing the DGP, thethen Chief Secretary and other senior officials of the State to allow tovent to the Hindu anger on the minority in the wake of Godhra incident.FThis is in reference to the meeting held on 27.2.2002 evening inGandhinagar, as testified in the affidavit of Mr. R.B. Sreekumar. To thesame end, the report by private panel of former Judges of this Courttitled “Concerned Citizens Tribunal” has been relied. This report refersto the testimony of late Mr. Haren Pandya, former Minister given beforethe former Judges of this Court. Additionally, the testimony of Mr. SanjivGBhatt, who claims to have attended the meeting convened by the thenChief Minister on 27.2.2002 has been relied.

111 supra at Footnote Nos. 6 and 16H112 see para 5(y) above

25. This is the core basis on which the complaint of the appellantproceeds to allege larger criminal conspiracy at the highest level. Theseallegations have been duly enquired into by the SIT. The SIT consideredthe relevant materials while examining allegations (i) and (iv), inter alia,in its report[113], to conclude that the claim of concerned persons is falseand figment of imagination. For that, the SIT had recorded statementsof all those officials who were present in the said meeting. They statedin one voice that Mr. Sanjiv Bhatt was not present in the review meetingconvened under the Chairmanship of the then Chief Minister. The SIThad also collected relevant documentary evidence to establish the falsityof the claim of Mr. Sanjiv Bhatt of being present in that meeting.

26. It is, thus, not case of one version against the other, but offalse claim set up by Mr. Sanjiv Bhatt of being personally present in thestated meeting. Therefore, the SIT after thorough investigation hasrecorded its opinion that neither Mr. Sanjiv Bhatt nor Mr. Haren Pandyawas present in the stated meeting. Similarly, even Mr. R.B. Sreekumarhad no personal knowledge as he did not attend the said meeting. Besides,Mr. R.B. Sreekumar was disgruntled officer. The relevant extract ofthe said final report[114] reads thus:-

“…..On his return, he called for Law & Order meeting athis residence at about 2300 hrs, which was attended by Smt.Swarna Kanta Varma, Acting Chief Secretary, Shri AshokNarayan, ACS (Home), Shri K. Chakravarthi, DGP, Shri P.C.Pande, CP, Ahmedabad City, Shri K. Nityanandam,Secretary, Home Department, Dr. P.K. Mishra, PrincipalSecretary to CM, Shri Anil Mukim, Secretary to CM andShri Prakash S. Shah, the then Addl. Secretary (L & O)were in the said meeting. However, Shri G.C. Raiger, Addl.DG (Int.) was not present in the said meeting. Shri Sanjiv Bhatt,the then Deputy Commissioner of lntelligence (Security)has claimed to have attended the said meeting at theinstance of DGP. No Cabinet Minister was present in thesaid meeting. Shri Gordhan Zadafia, MOS (Home) also didnot attend the meeting, as he had stayed back at Godhra.

113 pages 245 to 260 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

114 pages 246-247 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

EFG

138SUPREME COURT REPORTS

AShri Sanjiv Bhatt, the then Deputy Commissioner ofIntelligence (Security) has claimed after more than sevenyears, to have attended the said meeting at the instance ofthe then DGP……”

(emphasis supplied)

BThe SIT recorded the statements of the concerned officials[Ms. Swarnakanta Verma, the then Chief Secretary, Mr. Ashok Narayan,the then ACS (Home), Mr. P.K. Mishra, the then Principal Secretary toChief Minister, Mr. Chakravarthi, the then DGP, Mr. P.C. Pande, thethen Commissioner of Police, Ahmedabad City, Mr. Anil Mukim, thethen Additional PS to Chief Minister, Mr. K. Nityanandam, the thenCSecretary (Home), Mr. Prakash S. Shah, the then Additional Secretary(Law and Order), Mr. R.B. Sreekumar, the then Additional DGP] andafter analyzing the same, opined that all the officials who were presentin the stated meeting had said in one voice that Mr. Sanjiv Bhatt, thethen DCI (Security) was not present in that meeting.

27. The SIT then analyzed the claim of Mr. Sanjiv Bhatt that hewas present in the meeting by referring to official records including thecall records of his mobile phone No. [REDACTED] to conclude that hehad set up false plea of being present in the stated meeting. The SIThas adverted to the materials collected during investigation clearlyreflecting on the conduct of Mr. Sanjiv Bhatt including his false claim ofEbeing present in the stated meeting. The final report has analyzed theseaspects in detail[115].28. The final report then proceeds to advert to the interview givenby Mr. R.B. Sreekumar to news channel on 22.4.2011 and the detailsof the call records of Mr. Sanjiv Bhatt for the relevant period and notedFthus[116]: -

“…..Shri R. B. Sreekumar formerly ADGPIntelligence, in his interview to the Star Hindi News Channelat 12.35 hrs on 22.04.2011 has stated that Shri Sanjiv Bhatt,DCI (Security) had never informed him about havingGattended meeting at CM’s residence on 27.02.2002. Hehas further stated that at that time of filing an affidavit before

115 pages 249-254 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

116 pages 254-255 of original copy of the final report forming part of ConvenienceHCompilation of respondent No. 2

Nanavati Shah Inquiry Commission, he had asked all theofficers of State IB to provide him with the relevantinformation and documents in respect of Godhra riots butShri Sanjiv Bhatt did not give him any information aboutthe said meeting. According to Shri Sreekumar, Shri Sanjiv Bhattwas handling security portfolio and communal portfolio was beinglooked after by another officer. Shri Sreekumar has also stated inthe interview that it was normal procedure that if junior officerhad attended meeting on behalf of senior, he was required tosubmit report to his superior and that Shri G.C. Raiger, the thenADGP (Int.) should be asked about it. As already stated above,Shri Raiger has denied having received any information/report from Shri Sanjiv Bhatt in this regard.

The call detail records of the Govt. mobile phone no.[REDACTED] allotted to Shri Sanjiv Bhatt show that on27-02-2002, Shri Sanjiv Bhatt remained at Ahmedabad tillabout 1120 hrs and returned to Ahmedabad at 1925 hrs.He attended to various calls till 2040 hrs and thereafter,there is no record of any calls made or received by him.Further, on 28-02-2002, he remained at Ahmedabad till 1057hrs and then returned to Ahmedabad 2056 hrs. The claimof Shri Sanjiv Bhatt that he had attended meeting at CM’sresidence on 28-02-2002, at 1030 hrs is therefore provedto be false and incorrect. CM’s residence is at Gandhinagar,more than 25 KMs from Ahmedabad, and normally takes 30 to 45minutes to reach there. His further claim that he had seen LateAshok Bhatt and Shri I.K. Jadeja, the then Ministers in the DGPsoffice at about 1100 hrs on 28-02-2002, is also belied from the calldetail records in as much as the location of the mobile phone ofShri Sanjiv Bhatt was at Prerna Tower, Vastrapur-1, Ahmedabad,which happened to be at distance of 1.5 Kms. approximatelyfrom his residence and Shri Bhatt could not have reached PoliceBhavan, Gandhingar before 1130 hrs by any stretch of imagination.Further, both Shri K. Chakravarthi, the then DGP and Shri G.C.Raiger, the then Addl. DG (Int.) do not recollect having attendedany meeting at CM’s residence at about 1030 hrs on 28-02-2002.

Shri Ashok Narayan, the then ACS (Home) has stated thata meeting was held by the Chief Minister in the morning of 28-02-2002, which was attended by acting Chief Secretary, DGP Addl.

ADG (Int.) and the matter relating to the calling of Army was alsodiscussed, but no decision was taken and it was decided to watchthe situation. He has categorically denied that Late Ashok Bhattand Shri I.K. Jadeja, Ministers had attended the said meeting.The claim of Shri Sanjiv Bhatt that he had attended the saidmeeting at 1030 hrs at CM’s residence is proved to beBfalse from the location of his mobile phone, which was atPrerna Tower, Vastrapur-I, Ahmedabad City at 10:57:43 hrs.Moreover, his contention that the aforesaid two Ministerswere present in the said meeting is proved to be false fromthe statement of Shri Ashok Narayan, the then ACS (Home),Ccategorically stated that they were not present in the saidmeeting. His subsequent conduct of getting his statementcorroborated by way of introduction of two police personnelwould also go to show that he is trying to introduce himselfinto the meeting. As regards the alleged utterance made by theChief Minister in the meeting called on 27-02-2002 night at hisDresidence, it may be mentioned here that Shri R.B. Sreekumar,the then Addl. DG (Int.) had claimed that Shri K. Chakravarthi,the then DGP had informed him on 28-02-2002 that the ChiefMinister had allegedly said in the meeting that ‘’KOMIHULLADO MA TAME POLICE BARABARI KAROCHO.ETAME BE HINDU NE PAKDO TO TAME BE MUSALMANONE PAN PAKDO CHO. HA VE ME NAHI CHALE.HINDUONO GUSSO UTTARWA DO.” (In communal riotspolice takes action against Hindus and Muslims on one to onebasis. This will not do now-allow Hindus to give vent to theiranger). Shri Chakravarthi has denied that he held any suchFtalks with Shri R.B. Sreekumar. Even otherwise, theversion of Shri R.B. Sreekumar becomes hearsay andinadmissible in view of denial of Shri K. Chakravarti……”

(emphasis supplied)

29. Again, at pages 255-257[117], the SIT has analyzed the materialsGcollected during investigation indicative of the falsity of claim set up byMr. Sanjiv Bhatt and noted thus: -

117 pages 255-257 of original copy of the final report forming part of ConvenienceHCompilation of respondent No. 2

“….. However, on the other hand Shri Sanjiv Bhatt, who insiststhat he was in the said meeting, has stated “that the Chief Ministerhad said that for too long the Gujarat Police had been followingthe principle of balancing the actions against the Hindus andMuslims while dealing with the communal riots in Gujarat. Thistime the situation warranted that the Muslims be taught with thecommunal riots in Gujarat. This time the situation warranted thatthe Muslims be taught lesson to ensure that such incidents donot recur ever again. The Chief Minister Shri Narendra Modiexpressed the view that the emotions were running very highamongst the Hindus and it was imperative that they be allowed tovent out their anger.” Assuming for the time being that the ChiefMinister did make some utterances, there is material differencebetween the two versions in as much as Shri Sanjiv Bhatt hastried to improve his version by way of addition that this time thesituation warranted, that the Muslims be taught lesson to ensurethat such incidents do not recur every again. Since the versionof Shri R.B. Sreekumar is on hearsay basis and thetestimony of Shri Sanjiv Bhat does not have anycorroboration, no reliance can be placed on either of them.Shri Sanjiv Bhatt has not been able to give anysatisfactory explanation that when he was in possession ofplethora of information and was an eyewitnesses to someof the important events, then why did he not file an affidavitbefore Nanavati Commission and also did not appear aswitness in response to the Govt. circular before any legalauthority. He does not explain as to why he did not respondto public notice issued by SIT on 11-04-2008. His silencefor period of more than nine years without any properexplanation appears to be callous and gives an impressionthat he is trying to manipulate the things to his personaladvantage to settle his service matters.

During the course of further investigation complaint wasreceived from Shri Dharmesh P. Shukla, an accused in CR No.67/2002 of Meghaninagar P.S. (Gulberg Society case), who isfacing trial, in which he contended that there was no justificationto record the statement of Shri Sanjiv Bhatt on account of thefollowing reasons:-

i. Shri Sanjiv Bhatt, IPS is known to be police officer with adubious character facing several criminal cases of seriousnature and wherever he wants favour from the Govt. hecreates situation whereby the Govt. is compelled to help him.

ii. Shri Sanjiv Bhatt, who had not even whispered about anysuch meeting in the past contemporaneously, surprisingly cameout with new theory that he was part of the meeting.

iii. That sudden taking up position by Shri Sanjiv Bhatt afternine years of silence and his insistence to record his statementonly after an offence is registered, is at the behest of somevested interest.

iv. It is matter known to almost everyone in Gujarat that ShriSanjiv Bhat is known to be an officer pressuring everyone toget illegal favour.

Since the allegations leveled by the complaint were serious,a communication was sent to the Govt. to make available thedetails of all complaints/pending inquiries/prosecutions/departmental proceedings etc. against Shri Sanjiv Bhat. detailedreply has been received from the Govt. of Gujarat, whichshows that Shri Sanjiv Bhatt has faced number ofdepartmental inquiries and he was granted threepromotions of Junior Administrative Grade, SelectionGrade and DIG Grade on one day i.e. 21-09-2007, afterdropping of three departmental inquiries pending againsthim vide orders dated 06-08-2005, 03-09-2005 &24-07-2006. Shri Sanjiv Bhat, who is eligible for the IGPgrade has not been promoted because of the departmentalinquiries and criminal cases pending against him. Achargesheet served upon him on 29-12-2010, forirregularities in police recruitment under his Chairmanshipas SP, Banaskantha is still pending.

While handling law and order situation during hisposting as ASP Jamnagar in the year 1990, Shri Sanjiv Bhattcommitted atrocities on peaceful and innocent villagersbelonging to particular community at place called JamJodhpur. In the beatings by police one person was killed.The victims included pregnant woman, two assistant

engineers of irrigation department and one circle officer ofRevenue Department. Shri Bhatt applied provisions ofdraconian law TADA against the innocent persons andarrested 140 individuals under this Act. Due to publicpressure, the Government got an inquiry conducted by aretired Judicial Officer into the incident and Shri Bhatt wasfound guilty of (a) misuse of TADA (b) police atrocities and(c) unnecessary imposition of curfew for 70 hrs leading tohardship and harassment to the people.

The Criminal case of death of person due to policeatrocities in the incident was investigated by State CID(Crime) against Shri Sanjiv Bhatt and others. Aftercompletion of investigation, the IO sought prosecution sanctionfrom the Government u/s 197 Cr.PC, which was declined andtherefore, closure report was filed in the competent court.However, the Court rejected the closure report on20-12-1995 and took the cognizance. The State Governmentfiled Criminal Revision Application in the Sessions Court,which was rejected.The case u/s 302, 323, 506(1), 114 of IPC has nowbeen committed to Sessions Court, Jamnagar and ispresently with the Fast Track Court Khambhalia for framingof charges against Shri Sanjiv Bhatt and others.

Significantly, Gujarat High Court awarded compensationof Rs.1,50,000/- to the victim who had died due to police atrocitiesin the above case.

Another criminal complaint was filed against ShriSanjiv Bhatt, while he was posted at SP, BanaskanthaDistrict in 1996 by Shri Sumersingh Rajpurohit, an Advocatepracticing at Pali, Rajasthan and criminal case wasregistered against Shri Sanjiv Bhatt & others vide FIRNo.403/96 dtd. 18-11-1996 u/s 120B, 195, 196, 342, 347,357, 365, 388, 458, 482 IPC and Sec. 58(1) & 58(2) of NDPSAct. On completion of the investigation, the chargesheetwas filed against Shri Sanjiv Bhatt & others u/s 114, 120B,323, 342, 348, 357, 365, 368, 388, 452, 201 & 482 IPC andSec. 9, 17, 18, 29, 58(1) & 58(2) r/w Sec. 37 of NDPS Act in

the court of Spl. Judge, NDPS Act, Jodhpur, Rajasthan. Theallegations in brief are that the complainant Advocate wasoccupying property as tenant in Pali (Rajasthan), which wasowned by lady, who happened to be sister of Shri R.R. Jain, asitting Judge of Gujarat High Court. As per the said criminalcomplaint Shri Sanjiv Bhatt and his subordinate policeofficers allegedly planted 1 1/2 kg of Narcotic drug in oneroom in hotel at Palanpur, Gujarat, which was shown asoccupied by the said complainant, though he was Pali(Rajasthan) at that time. The said Advocate was abductedat midnight on the instructions of Shri Sanjiv Bhatt by hissubordinate police officers of Gujarat police, who went fromPalanpur, Gujarat to Pali (Rajasthan) to abduct him. Thesaid Advocate was brought to Palanpur, Gujarat andpressurized by Shri Sanjiv Bhatt and his subordinate policeofficers to vacate the said property by showing him arrestedunder NDPS offence. The said Advocate, while in thecustody of Gujarat Police and due to police torture, vacatedthe property and physical possession of the property washanded over to the sister of Shri R.R. Jain, Judge of GujaratHigh Court. Shri Sanjiv Bhatt and his subordinate police officers,thereafter released Shri Sumersingh Rajpurohit on 08-05-1996,by filing report u/s 169 Cr.PC, in which it was mentioned thatShri Sumersingh could not be identified in the Test IdentificationParade. Quashing Petitions were filed in this matter by the accusedpersons in Rajasthan and Gujarat High Court, but the same hadbeen dismissed. The matter is now pending before the Hon’bleSupreme Court of India.

Significantly, Gujarat Vigilance Commission recommendedtwice on 15-07-2002 and 19-10-2006 that Shri Sanjiv Bhatt shouldbe placed under suspension for his professional misconducts, butthe Govt. of Gujarat did not do so.

In the meantime, on the complaint of Shri Sidheshwar Puri,Secretary, Bar Association, Pali (Rajasthan), National HumanRights Commission taking very serious view of this false caseunder NDPS Act vide its order dated 15-09-2010 asked Govt. ofGujarat to pay sum of Rs. one lakh as monetary relief to ShriSumersingh, Advocate, Pali.

In view of the aforesaid position, it can be inferredthat Shri Sanjiv Bhatt is facing lot of problems in servicematters and has got an axe to grind against the Govt. ofGujarat and, therefore, his evidence is ill motivated andcannot be relied upon……”

(emphasis supplied)

Additionally, it may be apposite to reckon the adverse commentsnoted by this Court[118] against Mr. Sanjiv Rajendra Bhatt about his generalconduct while deciding writ petition filed by him for transfer ofinvestigation of major crime registered against him at Ahmedabad in2011 being I-CR No. 149/2011.

30. While dealing with the testimony of late Mr. Haren Pandyabefore the Concerned Citizens Tribunal and of Mr. R.B. Sreekumar, theSIT opined thus[119]: -

“….. As regards the deposition of Late Haren Pandya beforethe Concerned Citizens Tribunal, further investigation hasestablished that the meeting convened at CM’s residence, was anessentially law and order review meeting that was held on27-02-2002 and that none of the Cabinet Minister attended thesame. Late Haren Pandya was not even Cabinet Ministerat that time and was holding the portfolio of Minister ofState for Revenue. Shri Gordhan Zadafia also did not attendthis meeting, as he had stayed back at Godhra. In view ofthe version of all the senior officials of the Home and PoliceDepartment the alleged testimony of Late Haren Pandyabefore the Tribunal cannot inspire confidence.

As regards the entries made by Shri R.B. Sreekumar atpage 21 on l2-06-2002, in register unauthorisedly maintained byhim that the call details of the mobile phone of Late Haren Pandyawere handed over to Shri P.K. Mishra, the then Principal Secretaryto CM through Shri O.P. Mathur in his office, the same appearsto be doubtful as Shri Mathur has denied to have handed over anysuch call details to Dr. P.K. Mishra in his office and that Principal

118 supra at Footnote No. 89 – Sanjiv Rajendra Bhatt vs. Union of India & Ors. (2016)

1 SCC 1 (paras 49 to 55)

119 pages 259-260 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

Secretary to CM never visited the office of the State IB, as statedin the said entry made in the register. Moreover, Shri S.M. Pathak,the then Dy. SP, State IB has confirmed to have conducted secretinquiry about one of the Ministers who had met Forum of whichJustice Krishna Iyer, retired Judge of Supreme Court and someothers were the member, who had come to Ahmedabad to enquireinto the riots in the State. Shri Pathak has also confirmed tohave conducted secret inquiries, which revealed that LateHaren Pandya had met and deposed before them and thatthis fact was reported to Shri R.B. Sreekumar orally.However, Shri Pathak has stated that he does not recollect,as to whether he was asked to collect the mobile phonedetails of Late Haren Pandya or not, which again creates adoubt about the entry made by Shri R.B. Sreekumar in hisregister. Shri P.K. Mishra, the then Principal Secretary toCM has stated that he does not recollect, as to whether heasked Shri R.B. Sreekumar to collect the mobile callrecords of Late Haren Pandya and that, no phone call detailswere made available to him by either Shri Sreekumar orShri O.P. Mathur. The said call details are not availablenow. No disclosure was made by Shri R.B. Sreekumar aboutthe said register in his deposition before the Commissionon 31-08-2004 or in any of the two affidavits filed by him on15-07-2002 & 06-10-2004. It is rather surprising that thisregister saw the light of the day for the first time in theyear 2005, when Shri R.B. Sreekumar filed copy of thesame along with his third affidavit filed before the Nanavati-Shah Commission of Inquiry on 09-04-2005. It may bementioned here that this affidavit was filed by Shri R.B.Sreekumar after his supersession in promotion in February,2005. In view of the fact that the register maintained byShri R.B. Sreekumar cannot be considered to be anauthenticated document, therefore, the entries made by himin his said register cannot be considered to be reliable.Further investigation revealed that Govt. mobile no.[REDACTED] was allotted to Late Haren Pandya. The call detailrecords of the said mobile phone for 27-02-2002 have beensorted out and the same show that Late Haren Pandyaremained at Ahmedabad City till 10:46:55 on 27-02-2002.

His location at Ahmedabad City again comes at 16:24:24 hrs. andthereafter he remained at Ahmedabad City till 22:52:07 hrs on 27-02-2002 and therefore, this would conclusively establish thatLate Haren Pandya did not attend the law & order reviewmeeting that took place at CM’s residence at Gandhinagaron 27-02-2002 at about 2300 hrs.

In view of the aforesaid position, it appears that LateHaren Pandya had misled the Hon’ble Members ofConcerned Citizen Forum namely Mr. Justice (Retd.) P.B.Sawant and Mr. Justice (Retd.) Hosbet Suresh that he waspresent in the meeting called by the Chief Minister at hisresidence on the night of 27-02-2002 with view to increasehis credibility. It has been established beyond doubt thatLate Haren Pandya could not have been present in the saidmeeting and that the so called evidence given by him wasonly on hearsay basis. Since the statement made by LateHaren Pandya is based on hearsay basis, it deserves to bediscarded as it is not admissible under any provisions oflaw.

Shri Narendra Modi has denied during SIT examinationhaving stated in the said meeting that in communal riots policetakes action against Hindus and Muslims on one to one basis andthis will not do now, but allow Hindus to give vent to their anger.On the contrary, he claimed to have given categorical and clearcut instructions to maintain peace and communal harmony at anycost. He has further stated during examination by SIT that similarappeal had earlier been made to the people at Godhra throughmedia.

It has, therefore, been established that meeting didtake place at CM’s residence at about 2230 hrs. on27-02-2002, which was attended to by Smt. Swarna KantaVerma, the then Chief Secretary (Shri G. Subha Rao, thethen Acting Chief Secretary had gone abroad on22-02-2002), Shri Ashok Narayan, the then ACS (Home),Shri K. Chakravarthi, the then DGP, Shri P.C. Pande, thethen CP, Ahmedabad City, Shri K. Nityanandam, the thenSecretary, Home Department, Dr. P. K. Mishra, the thenPrincipal Secretary to CM, Shri Anil Mukim, the then

Secretary to CM and Shri Prakash Shah, Addl. Secretary(L&O). It has further been established that Shri G.C. Raiger,the then Addl. DG (Int.) was on leave and did not attendthe said meeting. It has also been established that Shri A.K.Sharma, the then Secretary to CM was on earned leavebetween 19-02-2002 to 05-03-2002 in connection with hissister’s marriage and was not present in the said meeting.None of the senior officers, who had attended the saidmeeting, have confirmed the alleged utterances made byShri Narendra Modi, Chief Minister. The statement madeby Shri R. B. Sreekumar is hearsay, which has not beenconfirmed by Shri. K. Chakravarthi. Shri R. B. Sreekumarhas no personal knowledge as he did not attend the saidmeeting. The participation of Shri Sanjiv Bhatt has not beenconfirmed by any of the participants of the said meeting orany other source. The very fact that he broke his silenceafter period of nine years makes his deposition suspiciousand motivated and therefore, cannot be relied upon. Asregards the deposition of Late Haren Pandya before theConcerned Citizens Tribunal, enquiries have establishedthat the meeting convened at CM’s residence, was anessentially law and order situation review meeting that washeld on 27-02-2002 and that none of the Cabinet Ministersattended the same. Late Haren Pandya was not even aCabinet Minister at that time. Shri Gordhan Zadafia alsodid not attend this meeting, as he had stayed back at Godhra.In view of the version of all the senior officials of the Homeand Police Department the testimony of Late Haren Pandyabefore the Tribunal becomes unreliable. Moreover, the callrecords of the mobile phone of Shri Pandya show that hewas at Ahmedabad till 22:52:07 hrs on 27.02.2002, andtherefore, he could not have participated in the said meetingat CM’s residence at Gandhinagar. No minutes of the27-02-2002 meeting were prepared.

In the light of the aforesaid discussions, it can beconcluded that Law & Order review meeting was in factheld by Shri Narendra Modi, Chief Minister at his residencelate in the evening of 27-02-2002. However, the allegationthat the Chief Minister instructed the Chief Secretary, DGP

and other senior officials to allow the Hindu community togive vent to their anger on the minority Muslims in thewake of Godhra incident is not established…...”

(emphasis supplied)

Thus, the SIT could not have reckoned the version of Mr. HarenPandya, who was not present in the meeting when the alleged utterancescame to be made by the then Chief Minister. Such claim made byMr. Haren Pandya is found to be false.

31. As in the case of allegations (i) and (iv), the SIT then proceededto exhaustively deal with the materials collected during the investigationallegation-wise including the two allegations [Nos. (xxxi) and (xxxii)]culled out by the SIT. The final report has then dealt with the materialsoffender-wise[120]. While dealing with the allegations against the then ChiefMinister concerning the illegal instructions given during the meeting on27.2.2002 it has been found thus[121]: -

Illegal Instructions at the 27.02.2002 meeting:

As regards the meeting held on the night of 27.02.2002, inwhich allegedly illegal instructions were given by Chief Ministerto the administrative and police officials. It has come to light thatan emergency law & order review meeting to take stock of thesituation was called by Chief Minister at his residence at about2230 hrs. after his visit to Godhra. It has come in evidencethat the meeting lasted for half an hour or so and wasattended by Smt. Swarna Kanta Varma, the then acting ChiefSecretary, Shri Ashok Narayan, the then ACS (Home) ShriK. Chakravarthi, the then DGP, Shri P.C. Pande; the thenCP, Ahmedabad City, Shri K. Nityanandam, the thenSecretary, Home Department, Dr. P.K. Mishra, the thenPrincipal Secretary to CM, Shri Prakash Shah, the thenAddl. Secretary, Law & Order and Shri Anil Mukim,Secretary to CM one of the Cabinet Ministers of Shri G.C.Raiger, the then Addl. DG (Int.) was present. Since the

120 pages 337-397 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

121 pages 338-339 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

presence of Shri Sanjiv Bhatt the then DCI (Security) inthe meeting on 27.02.2002, is not established, his statementcannot be relied upon. Shri Narendra Modi has also deniedthe presence of Shri Sanjiv Bhatt in the said high levelmeeting. His presence has been denied by others who weredefinitely present. Shri R.B. Sreekumar has claimed thatShri K. Chakravarthi had spoken to him on 28.02.2002,about the said meeting and had claimed that CM utteredthese words. However, Shri Chakravarthi, the then DGP,has categorically denied any such conversation with ShriR.B. Sreekumar and as such, it becomes hearsay evidence,which cannot be considered as evidence for any action. ShriR.B.Sreekumar, in his representation dated 03.08.2009,had mentioned the names of different officer, who accordingto him, had attended this meeting significantly, name of ShriSanjiv Bhatt had not been indicated by him. This goes tosupport that Shri Sanjiv Bhatt was not present in themeeting. As regards the deposition of Late Haren Pandya,formerly MoS, Revenue before the Concerned CitizensTribunal, in which he had claimed to have attended themeeting called by Chief Minister on the night of 27.02.2002,all the participants have denied the presence of any of theCabinet Ministers/MoS at the said meeting. Late HarenPandya was only Minister of State for Revenue at thattime. Shri Narendra Modi has stated that it was essentiallya Law & Order situation review meeting and none of hiscabinet colleagues attended it. Besides this, there isdocumentary evidence in the form of call detail records of LateHaren Pandya, which conclusively prove that he was present atAhmedabad till 22:52:07 hrs. on 27.02.2002 and as such he couldnot have been present in the meeting convened by chief Ministerround 2230 hrs. or so. In view of this the testimony of lateHaren Pandya before the Tribunal becomes highlyunreliable. Also relevant here is the strained relationship betweenhim and Shri Narendra Modi, fact revealed by late Pandya’sfather late Vithhalbhai Pandya.

Shri Sanjiv Bhatt, the then DCI (Security), has claimedto have attended the meeting, which is not established.Further, None of the senior administrative or police officers

has stated that the CM uttered the following words: “thatso far in communal riots police takes action on one to onebasis and that this will not do now. Allow Hindus to givevent to their anger.”Shri Sanjiv Bhatt, the then DCI(Security), had initially claimed off the record during hisexamination. On 25/26-11-2009, that the CM had uttered thesewords at the said meeting. This fact was duly incorporated byShri A. K. Malhotra, Member, SIT in his Inquiry Report dated12.05.2010 submitted to the Hon’ble Supreme Court of India.However, during his further examination in CR No. 67/02of Meghaninagar P. S. on 21 & 22-03-2011, he improvedhis version and added that “This time the situationwarranted that the Muslims be taught lesson to ensure”that such incidents do not recur ever again.It was for thefirst time after period of seven years and nine monthsthat Shri Sanjiv Bhatt claimed to have attended the crucialmeeting convened by the Chief Minister on 27.02.2002.Shri Sanjiv Bhatt has explained that the then DGP Shri K.Chakravarthi had instructed him to attend the meeting with IB’sassessment of the situation. Shri K. Chakravarthi categoricallydenied to have given any such instructions and has furtherstated that Shri Sanjiv Bhatt was not present at the saidmeeting. Seven other officers who attended the meetinghave also categorically stated that Shri Sanjiv Bhatt wasnot present in the said meeting. However, Smt. SwarnakantaVarma stated that she was unable to recollect whether Shri SanjivBhatt was present or not. Besides that Shri Sanjiv Bhatt has pleadedignorance about the fact as to whether Chief Ministers allegedinstructions were passed on by the senior offices to thesubordinates and also as to whether the same were complied withor not. Shri Sanjiv Bhatt is tainted witness and there fore,cannot be relied upon keeping in view his back ground inthe police department as he was involved in criminal casesof serious nature and departmental inquiries are also inagainst him. It may be added here that even before thismeeting, when Chief Minister visited Godhra on 27.02.2002evening, he addressed the media at the Collectorate andasserted that the culprits would not be spared and thevictims would be paid of Rs.2 lakh each. The CM also

152SUPREME COURT REPORTS

Aappealed to the public through media to maintain peace.Further more, on 28.02.2002, that is within less than 12hours of the alleged meeting that took place on the night of27.02.2002, the CM has stated on the floor of the Assembly,where the Opposition was also present, that “the State Govt.has taken this heinous, inhuman and organized violent actBvery seriously and is committed to give exemplarypunishment to the culprits so that such incident never recuranywhere. The Chief Minister repeated almost the similarfacts in his press conference held on 28.02.2002 afternoonat Circuit House, Annexe, Ahmedabad. It would not be outCof place to mention here that in his appeal made to the publicthrough Door-darshan on 28.02.2002, chief Ministerreiterated that Gujarat will never tolerate any such incidentand that guilty will be punished for their heinous crime. Healso said that the culprits would be awarded such exemplarypunishment so that no one would dare to involve himself inDsuch an incident. This would go to show that at-least onfive occasions, which are fully documented during27.02.2002 & 28.02.2002 Chief Minister addressed Media,Assembly and General Public and every where the genesisand intention was one and the same, i.e. to punish theEculprits responsible for the Godhra incident in an exemplarymanner, so that such incidents, did not recur ever again. Inthe light of aforesaid discussion, the interpretations madeon alleged illegal instructions given by the Chief Ministerby Shri R.B. Sreekumar and Shri Sanjiv Bhatt, appear to bewithout any basis. Further, even if such allegations are believedFfor the sake of argument, mere statement of alleged words in thefour walls of room does not constitute any offence……”

(emphasis supplied)

Again, while dealing with the allegations levelled by Mr. R.B.GSreekumar regarding illegal verbal instructions issued by the then ChiefMinister, the analysis of the SIT read thus[122]: -

122 pages 341-342 of original copy of the final report forming part of ConvenienceHCompilation of respondent No. 2

Illegal Verbal Instructions:

As regards the allegation leveled by Sreekumar, thatnumerous illegal verbal instructions were given by CM and thathe had maintained register in this regard, Shri O.P. Mathur, thethen IGP (Admn.), has stated that the register was totally blankon 18.04.2002, when he had certified the number of pages in thesame and that Shri Sreekumar had not disclosed the purpose ofmaintaining such register. According to Shri Mathur, theregister did not contain the “secret” stamp and also didnot have any title as well as the circular stamp of the officeof the Addl. DG, CID (Int.). According to Shri Mathur, ShriSreekumar had recorded the first entry as on 16.04.2002,the second and third entries on 17.04.2002, and the fourthentry on 18.04.2002, which goes to show that ShriSreekumar had not only antedated these entries, but alsoaffixed the stamps subsequently. Shri Q.P. Mathur haschallenged another entry recorded by Shri Sreekumar that calldetails of the mobile phone of Late Haren Pandya were handedover to Shri P.K. Mishra, the then secretary to CM through himand denied to have handed over any such call details to Dr. P.K.Mishra in his office. During enquiries, other senior officers,namely, Shri P.K. Mishra, Shri G. Subba Rao, the then ChiefSecretary, Shri Ashok Narayan, the then ACS (Home) andShri K. Chkriavarthi the then DGP have challenged thecontents of the said register on the ground that the samehad been unauthorisedly maintained by Shri Sreekumar,which he was not officially required to maintain. Moreover,neither had he taken the permission of the HomeDepartment to maintain such register nor the Same wasput up by him to any of the senior officers for perusal. It is,therefore reasonable to say that Shri Sreekumar made theentries afterwards at his own sweet will with some ulteriormotive. According to them, this register saw light of theday for the first time, when Shri Sreekumar was deniedpromotion. Shri Narendra Modi, chief Minister disclaimedknowledge about such personal diary/register maintainedby Shri Sreekumar and stated that he came to know about

154SUPREME COURT REPORTS

Ait from the media reports after long time. According toShri Modi this diary was not Govt. record and as such hedid not want to comment upon the authenticity or otherwiseof the same. All the aforesaid facts and the conduct createserious doubts about the genuineness of the entries madeby Shri Sreekumar in the said register and, therefore itBcannot be relied upon. The allegation that illegal verbalinstructions were issued by Shri Narendra Modi is therefore, notestablished……”

(emphasis supplied)

CThe SIT, after analyzing the entire materials, noticed that theallegations in the complaint filed by the appellant, dated 8.6.2006 aremostly based on the contents of the nine affidavits filed by Mr. R.B.Sreekumar before the Nanavati-Shah Commission. Those contents werenot on the basis of his personal knowledge/information. He claims tohave acquired information after he was posted at Additional DirectorDGeneral (Intelligence) in April, 2002. Notably, he had not made anyadverse comment against the Government in his initial two affidavits,but started doing so from his third affidavit dated 9.4.2005, presumably,after being superseded by his junior K.R. Kaushik in February, 2005owing to pending criminal case against him initiated by the JMFC,EBhuj. The allegations made by him have been duly enquired into by theSIT and found to be false or not based on his personal knowledge norcould be duly corroborated despite best efforts of the SIT.32. Further analysis regarding the allegation of intimidation ofMr. R.B. Sreekumar, Additional DGP, can be noted as follows[123]: -

Intimidation of Shri Sreekumar, Addl. DGP

As regards the allegation made by Shri R. B. Sreekumarthat he was tried to influence to depose in favour of the Govt.before Nanavati-Shah Commission of lnquiry through Shri DineshGKapadia, Under Secretary, Shri Narendra Modi has termed theallegation as false and without any basis Shri Sreekumar, Retd.DGP while the letter as ADGP (Int) through Shri S.M. Pathak,

123 pages 349-350 of original copy of the final report forming part of ConvenienceHCompilation of respondent No. 2

the then DY. S.P. Gandhinagar. He has further stated that theyused to exchange some sankrit verses of mutual interest and usedto visit each other in their office. According to Shri Kapadia, duringone of these meeting on 2l.8.2004, in the chamber of ShriSreekumar, he took out copy of his affidavit filed before aCommission of Inquiry and showed it to him and remarked thathe was born rebel. Shri Kapadia stated to have glance at theaffidavit and made personal observation that no useful purposewould be served by telling all these thing to the Commission, as allCommission are paper tiger. He also expressed his personal viewthat Commission was not the proper forum to tell these things andsaid that Shri P.C. Pande, the then CP, Ahmedabad City had rightlydeposed before the Commission and that he Shri R. B. Sreekumarshould also emulate him. According to Shri Kapadia, he expressedhis personal views that Shri Sreekumar was biased in hisassessment of situation and that the same could further put him insame uncalled for controversy. Shri Kapadia has denied thathe was sponsored by anyone to influence Shri R B.Sreekumar and that these were his personal viewsexpressed as well wisher to Shri R.B. Sreekumar, whomhe considered as an honest and good officer. However,subsequently he came to know that Shri Sreekumar hadclandestinely recorded his conversation and an enclosedthe transcript thereof along with his affidavit submitted tothe Commission. Shri Kapadia has also stated that on dayof his retirement i.e. 28.02.2007, Shri Sreekumar called himto his chamber offered him cup of tea and also anunconditional apology for the whole episode. Shri Kapadiahas also stated that Shri R.B. Sreekumar regretted thewhole incident and stated that he had been advised by hislawyer to do so as the same could have strengthened hiscase pending before the CAT. Shri Kapadia has denied to haveinfluenced Shri R. B. Sreekumar and further denied that he washolding any brief on behalf of the Govt. in this regard.

Coming to the allegation made by Shri R. B. Sreekumarthat Shri G. C. Murmu, Secretary (Law & Order), HomeDepartment and Shri Arvind Pandya, Govt. Advocate to Nanavati-Shah Commission of Inquiry had tried to influence him not to deposeagainst the Govt. prior to his appearance on 31.08.2004 before

Nanavati-Shah Commission of Inquiry, it has come to light thatthe meeting was held at the request of Shri Sreekumar and theconversation was clandestinely recorded by him it may bementioned here that initially both, Shri Murmu and Shri Pandyabriefed Shri Sreekumar about the modalities for his examinationand advised him about certain precautions to be taken the time ofhis cross examination. Rest of the conversation is confusing anddoes not make any sense inasmuch as there are certain gaps,which Shri R. B. Sreekumar has tried to fill in by his own views,on the basis of assumptions and presumptions and has interpretedthe things to support his version that he was pressurised, threatened,given illegal direction, intimidated to avoid the revealing of thetruth that would harm the Govt. interests and to conceal the factsfrom the Commission. Shri Sreekumar has given his owncomments, observations and conclusions and has alsoappreciated/interpreted this conversation in his ownmanner, which showed that he is not an independent witnessand that he wanted to influence the Inquiry officer to accepthis inferences and conclusions. Surprisingly, Shri Sreekumardid not state these facts before the Nanavati-ShahCommission of Inquiry, when he appeared before it on31-08-2004, for his cross examination even through allegedpressure was put on him to depose in certain way in theCommission. Obviously, Shri R. B. Sreekumar had kept itsecret to be utilised as and when the need arose. Further,he did not disclosed these facts even in his second affidavitfiled on 06-10-2004 before the Commission. It was onlyafter Shri R.B. Sreekumar was superseded in his promotionto the rank of DG on 23-02-2005 that he filed his thirdaffidavit on 09-04-2005, before Nanavati-Shah Commissionof Inquiry of his own, and enclosed the transcript of therecordings of the conversations with Shri Dinesh Kapadiaas well as Shri G. C. Murmu and Shri Arvind Pandya. Allthese facts would go to show that Shri R.B. Sreekumar hadanticipated these events, had recorded these conversations,clandestinely and used the same at his convenience, whenhe was superseded in promotion. This would prove that actionson the part of Shri Sreekumar were motivated with view to letdown the Govt. after his supersession in promotion. In all the

three affidavits filed on 06-10-2004, 09-04-2005 & 27-10-2005before the Commission, Shri R.B. Sreekumar had made requestto be summoned before the Commission and remedial measuresordered as early as possible, but the Commission did not accedeto his request. In view of this the allegation relating to theintimidation of Shri R.B. Sreekumar is not substantiated……”

(emphasis supplied)

33. In the context of the opinion of Mr. Raju Ramachandra, learnedAmicus Curiae noted after the submission of the report of the SIT beforethis Court, the SIT undertook further investigation and collected relevantmaterials, which have been referred to alongwith the previous materialsin the final report presented before the concerned Court[124]. As regardscomments of the learned Amicus Curiae in reference to allegations (i)and (iv), the outcome of the further investigation has been discussed andanalyzed from pages 401 to 434[125]. It may be desirable to reproduce therelevant extract of the final report dealing with each observation notedby the learned Amicus Curiae, to understand and appreciate theextensive, objective and impartial analysis undertaken by the SIT includingthe further investigation done after the order of this Court dated15.3.2011[126]. However, for the sake of convenience, we are appendingthe relevant extract[127] thereof and have highlighted some pertinentportions, to this judgment to be regarded as part of this judgment[128].After going through the materials and the analysis undertaken by theSIT, which commended to the Magistrate as well as, the High Court, weunreservedly hold that no other view is possible.

34. We find force in the argument of the respondent-State thatthe testimony of Mr. Sanjiv Bhatt, Mr. Haren Pandya and also ofMr. R.B. Sreekumar was only to sensationalize and politicize the mattersin issue, although, replete with falsehood. For, persons not privy to thestated meeting, where utterances were allegedly made by the then ChiefMinister, falsely claimed themselves to be eye-witnesses and after

124 pages 398-467 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

125 pages 401-434 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

126 see para 5(t) above

127 pages 398-467 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

128 Annexure-1 (at pages 308-449 of this judgment)

Athorough investigation by the SIT, it has become clear that their claim ofbeing present in the meeting was itself false to their knowledge. Onsuch false claim, the structure of larger criminal conspiracy at the highestlevel has been erected. The same stands collapsed like house of cards,aftermath thorough investigation by the SIT.

B35. We hasten to add that it is only because of the ultra-sensationalrevelation projected by Mr. Sanjiv Bhatt and Mr. Haren Pandya, whounabashedly claimed to be privy to the utterances made by the thenChief Minister in an official meeting, the constitutional functionaries andthis Court was required to move into action taking serious note of thesame. But, after thorough investigation by the SIT, the falsity of suchCclaim has been fully exposed on the basis of credible indisputable materialscollated by the SIT during the investigation in that regard.

36. Besides exposing the falsity of the claims of these two persons,the SIT has been able to collate materials indicative of the amount ofhard work and planning of the concerned State functionaries in theirDattempt to control the spontaneous evolving situation of mass violenceacross the State of Gujarat, despite the handicap of administrationincluding the inadequate State police force required to be replenishedwith central forces/Army, which were called without loss of time andthe repeated appeals made by the then Chief Minister publicly to maintainEpeace.37. Realizing the difficulty in pursuing the stated allegations [Nos.(i) and (iv)], the appellant has been now advised not to pursue the sameand in the written note [reproduced in paragraph 6(www)] filed afterthe conclusion of hearing, confirmed that statement. The learned counselFfor the appellant did not contend before this Court that larger conspiracyemanated from the meeting of 27.2.2002; and that, therefore, had madeno reference to this meeting in this appeal during arguments at all. Asaforesaid, we are of the considered opinion that the enquiry to be madein this case is essentially regarding the allegations of larger criminalconspiracy at the highest level. That itself has, now, in way, beenGabandoned by the appellant in this appeal. It must follow that no otheraspect needs to be examined in this appeal as the finding of the Magistrateand of the High Court in that regard, is being allowed to become final.

38. It is in this context the learned counsel for the SIT had urgedthat the appellant has been changing goalpost at every stage of theH

proceedings before different Courts. It is seen that the allegation oflarger criminal conspiracy at the highest level spelt out in the complaintand protest petition, was in reference to the sensational revelation madeby Mr. Sanjeev Bhatt and Mr. Haren Pandya, the falsity whereof hasbeen exposed by the SIT. As result, now the appellant is pursuing thesame allegation by relying on so-called undisputed extra-judicialconfessions recorded in Tehelka tapes on the specious plea that therecan be no direct evidence regarding larger conspiracy. Hence, in thisappeal, the entire focus of the appellant has been to highlight the so-called undisputed extra judicial confessions recorded in Tehelka tapes tobe read with the inaction of the officials demonstrable from the undisputedofficial documents to establish larger conspiracy and which accordingto the appellant, has not been enquired into by the SIT. The statedundisputed evidence, according to the appellant, points to largerconspiracy, which appears to involve bureaucrats, politicians, publicprosecutors, VHP, RSS, Bajrang Dal and members of the State politicalestablishment.

39. This argument, we unhesitatingly opine, is nothing short of redherring. In that, emphasis has been placed on evidence such as SIBmessages. What has been conveniently glossed over is that, to make outa case of larger criminal conspiracy, it is essential to establish linkindicative of meeting of minds of the concerned persons for commissionof the crime(s), committed during the relevant period across the Stateincluding the heart-rending episode unfolded at Godhra on 27.2.2002, inwhich large number of Kar-sevaks were burnt alive in train bogies. Nosuch link is forthcoming, much less had been unraveled and establishedin any of the nine (9) cases investigated by the same SIT under thedirections of this Court. Accepting the argument of the appellant wouldrequire us to question the wisdom of this Court and to hold that even theincident at Godhra unfolded on 27.2.2002 was also the outcome of allegedlarger criminal conspiracy. Such view would be preposterous.

40. In that, the Godhra incident has been fully enquired into by theSIT to the satisfaction of this Court and even the trial had ended inrecording conviction against the concerned accused (belonging to minoritycommunity). As to how the Godhra incident unfolded, has been analyzedby the High Court in confirmation appeals in Godhra train case about theacts of planning and commission by group of persons. Suffice it toobserve that forwarding of messages by the intelligence agencies

Aincluding inaction or lack of effective measures taken by the concernedofficials per se does not imply criminal conspiracy on the part of theState authorities. As stated earlier, absent tangible material suggestiveof chain or any perceivable link or connection with the unfolding ofmass violence across the State, it is unfathomable as to how the SITcould have still recommended sending the alleged offenders for trial,Bmuch less would obligate the concerned Court to take cognizance onsuch unfounded allegations. There is no material forthcoming to indicatethat there was failure on the part of intelligence to collect informationand it was deliberate act on the part of the State Government authorities.Whereas, the allegation is that intelligence inputs were collected andCdisseminated to concerned authorities, but not acted upon by theconcerned officials in right earnest.

41. Needless to underscore that inaction of the duty holders totake those messages to its logical end, cannot be regarded as act ofcriminal conspiracy unless there is material to provide link regarding theDmeeting of minds and deliberate act to effectuate plan to spread massviolence across the State. The SIT had recorded statement of Mr. AshokNarayan, the then ACS (Home), Gujarat, dated 12.12.2009, who statedas follows: -

“…..The State of Gujarat has long history of communalEriots way back to 1714. Thereafter riots had erupted in the Stateon many occasions during the last three centuries. However, post-independence, major riots took place in the State in 1969, 1985and 1992-93. Inputs regarding the communal situation in the Statehad been received from the State Intelligence Bureau as well asIntelligence Bureau, Ministry of Home Affairs, Government ofFIndia. This information was sent to the concerned authorities toinitiate appropriate preventive and remedial measures. Actionableinformation was analysed and communicated to the DGP and otherfield formation for further necessary action.

At the time when I took over as ACS (H), the communalGatmosphere in Gujarat State was neither surcharged nor volatileprior to 27.02.2002. It may be mentioned here that the programmeof Shilanyas for Ram Mandir at Ayodhya was announced quite afew months back to be done on 15th March 2002 and thisannouncement had arose some passions across the country. InHGujarat State Intelligence outputs were available to the government

about the movement of the Karsevaks from different places inGujarat to Ayodhya. Keeping in view this information all SsP/CsPwere alerted on 07.02.2002 about the movements of Karsevaks.The Government had specific information that on 16.02.2002 thatShri Prahladbhai J. Patel, President of Bajrang Dal would leavefor Ayodhya for Maha Yagna along with 150-200 persons. Furtheron 22.02.2002 he will depart from Mehsana railway station at15.40 hours by Delhi-Ahmedabad Mail train for Ahmedabad andon 24.02.2002 they would leave Ahmedabad railway station bySabarmati Express train 9165 Dn. at 20.25 hours for Ayodhya.Also there was information that they will return on 26.02.2002from Ayodhya at night and would reach Ahmedabad on 28.02.2002morning. The group was supposed to carry Trishuls with them.Accordingly this message was passed on by SP Western Railway,Vadodara Gujarat to IG Communal Intelligence, UP, Lucknowvide fax message dated 16.02.2002. However, no specificinformation had been received from the IG Communal Intelligence,UP about the return journey of Karsevaks or from anyoneelse……”This version belies the claim of the appellant including theunfounded allegation of criminal conspiracy at the highest level for causingmass violence across the State. The materials gathered by the SIT onthe other hand, would suggest that despite the corrective measures takenby the concerned officials in right earnest, the situation evolved inunpredictable and sporadic manner and the expanse of the activitieswere such that the State administration was completely overrun.

42. At the cost of repetition, be it noted that the SIT had not foundany conspiracy for linking the separate incidents of mass violence acrossthe State during the investigation of nine (9) separate crimes includingthe Godhra train incident, dealt with by the SIT under the strict vigil andsupervision of this Court and ably assisted by the learned Amicus Curiaeplaying the role of devil’s advocate. Whereas, the messages generatedby SIB from time to time even before 27.2.2002, in fact would go toshow that the concerned officials were vigilant, but the situation as evolvedpost Godhra incident, was unparalleled and had overrun the Stateadministration.

43. In any case, inaction or failure of some officials of one sectionof the State administration cannot be the basis to infer pre-planned

Acriminal conspiracy by the authorities of the State Government or toterm it as State sponsored crime (violence) against the minoritycommunity. The SIT had noted that inaction and negligence of the erringofficials has been taken note of at the appropriate level including byinitiating departmental action against them. Such inaction or negligencecannot pass the muster of hatching of criminal conspiracy, for whichBthe degree of participation in the planning of commission of an offenceof this magnitude must come to the fore in some way. The SIT was notthere to enquire into the failures of the State administration, but the remitgiven to it by this Court was to enquire into the allegations of largercriminal conspiracy (at the highest level).C

44. Conspiracy cannot be readily inferred merely on the basis ofthe inaction or failure of the State administration. In the enquiryundertaken by the SIT, it had been found that the developments were inquick succession and had overrun the arrangements already in place orfor that matter, additional support by calling Army on 28.2.2002 itselfDbesides the curfew imposed in the most disturbed areas of the State. Inlight of such timely corrective measures taken by the State Governmentin right earnest and repeated public assurances given by the then ChiefMinister that guilty will be punished for their crime(s), and to maintainpeace, it would be beyond comprehension of any person of ordinaryprudence to bear suspicion about the meeting of minds of namedEoffenders and hatching of conspiracy by the State at the highest level, asalleged, much less grave or strong suspicion as being the quintessencefor sending the accused for trial for an offence of criminal conspiracy.

45. The protagonists of quest for justice sitting in comfortableenvironment in their air-conditioned office may succeed in connectingFfailures of the State administration at different levels during suchhorrendous situation, little knowing or even referring to the ground realitiesand the continual effort put in by the duty holders in controlling thespontaneous evolving situation unfolding aftermath mass violence acrossthe State. The linking of such failures is not enough to entertain suspicionGabout hatching of criminal conspiracy at the highest level, which requiresa concerted effort of all the persons concerned and more importantly,clear evidence about meeting of the minds to accomplish such design,much less of causing and precipitating mass violence across the State.It is apposite to recall the observations in Reg vs. Hodge[128A], adverting

128A (1838) 2 Lew 227, referred to in Hanumant, son of Govind Nargundkar vs. StateHof Madhya Pradesh – 1952 SCR 1091

to the address by Baron Alderson about the dexterity and ability ofingenious mind to create theories, where he had said: -

“The mind was apt to take pleasure in adapting circumstancesto one another, and even in straining them little, if need be, toforce them to form parts of one connected whole; and the moreingenious the mind of the individual, the more likely was it,considering such matters, to overreach and mislead itself, to supplysome little link that is wanting, to take for granted some factconsistent with its previous theories and necessary to render themcomplete.”

Be that as it may, overrunning of State administration is not anunknown phenomenon. It has been witnessed all over the globe duringthe second wave of pandemic, where the countries with even best ofmedical facilities crumbled and their management skills were overrununder the pressure. Can it be said to be case of hatching of criminalconspiracy? We need not multiply such instances of overrun. Breakdownof law-and-order situation if for short duration, cannot partake the colourof breakdown of rule of law or constitutional crisis. To put it differently,misgovernance or failure to maintain law-and-order during brief periodmay not be case of failure of constitutional machinery in the context oftenets embodied in Article 356 of the Constitution. There must be credible

evidence regarding State sponsored breakdown of law-and-ordersituation; not spontaneous or isolated instances or events of failure ofState administration to control the situation. Suffice it to observe that thebreakdown of law-and-order situation in the State including attributableto the alleged inaction of the (State) duty holders, owing to spontaneousmass violence cannot be safe measure to infer as being part of thecriminal conspiracy at the highest level of political dispensation unlessthere is clear evidence to so conclude regarding meeting of the minds ofall concerned and their concerted efforts to commit or promotecommission of such crime. The allegation in the present case, if at allrelevant, was founded on falsehood of the claim of Mr. Sanjeev Bhattand Mr. Haren Pandya regarding the utterances of the then Chief Ministerin review meeting chaired by him – which stood completely exposedafter the investigation by the SIT.

46. For the same reason, it would not be open to the concernedCourt to take cognizance or to call upon the SIT to do further investigationabsent any tangible material. On the other hand, the opinion recorded by

Athe SIT while dealing with allegation No. (viii)[129], has dealt with thematerials to conclude that it cannot be said that no action had been takenon letters sent by Mr. R.B. Sreekumar. Similarly, while dealing with theallegation [No. (xiv)] regarding undue delay in requisition and deploymentof Army[130], the SIT had opined that there was genuine problem ofdeploying Army despite sending of requisition on 28.2.2002 at 1300 hrs.,Bwhich message was sent by fax to the Union Defence Secretary, Ministryof Defence at 1430 hrs. and the time taken in posting the Army after itsarrival due to logistical reasons.47. Suffice it to observe that there is no tittle of material, muchless tangible material to support the plea of the appellant that the GodhraCincident unfolded on 27.2.2002 and the events which followed, was apre-planned event owing to the criminal conspiracy hatched at the highestlevel in the State. It is well settled that conspiracy requires an act (actusreus) and an accompanying mental state (mens rea). The agreementconstitutes the act and the intention to achieve the unlawful objective ofDthat agreement constitutes the required mental state. The offence ofconspiracy is independent of other offences. It takes place when thereis an agreement to do or cause to be done an illegal act, or an act whichmay not be illegal but by illegal means. The rationale of conspiracy isthat the required objective manifestations of dispositions of criminality isprovided by the act of agreement. To convict person of conspiracy, theEprosecution must show that he agreed with others that together they willaccomplish the unlawful object of the conspiracy[131]. As noted earlier,inaction in the response or even in given case of non-responsiveadministration, can be no basis to infer hatching of criminal conspiracyby the authorities of the State Government in absence of any clearFevidence about the meeting of minds; and that, failure to respond to themessages sent by SIB was concerted and deliberate act of omissionor commission on the part of the State and other functionaries, as alleged.The SIT had recorded the statements of all concerned including theofficials before forming the opinion, as noted in the final report, to discardG129 pages 280-283 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

130 pages 293-294 and 342-343 of original copy of the final report forming part ofConvenience Compilation of respondent No. 2

131 See Firozuddin Basheeruddin (supra at Footnote No. 43), R. Venkatkrishnan(supra at Footnote No. 45), Shiv Charan Bansal (supra at Footnote No. 46), andHNazir Khan (supra at Footnote No. 59)

the allegation under consideration. The Magistrate, as well as, the HighCourt committed no error whatsoever in accepting the final reportpresented by the SIT.

48. Thus understood, the argument pressed into service about theexistence of materials regarding build-up of communal mobilizations andstockpiling of weapons, arms and ammunitions even before the Godhraepisode on 27.2.2002 being part of the larger criminal conspiracy, isdevoid of merits. This argument proceeded on an erroneous assumptionthat the SIT had not investigated into this crucial matter. The final reportpresented by the SIT before the concerned Court has dealt with therelevant aspects while considering allegation No. (viii)[132], as also, underthe heading “Failure to Act on Suggestions From State Intelligence”,while considering the allegations against the then Chief Minister[133], inthe following words: -

Failure to act on suggestions from State Intelligence

Shri Narendra Modi has stated that in order to bringto bring peace and normalcy in the State, he had maderegular appeals through media to maintain peace andCommunal harmony. CM has claimed to have formed aCommittee under the Chairmanship of the Governor of theState; Leader of Opposition and others to supervise therelief operation. He has further stated that the relief campswere opened in the affected areas served by the NGOs and localsocial leaders. He has also stated that the funds were contributedby the Govt. as per policy and the relief operations supervised bythe Committee. According to Shri Modi, the necessary food,drinking water, medicines and cash, etc were arranged in thesecamps and arrangements also made for the children education inthese camps. According to Shri Modi, some PIL had been filed inthis regard in Gujarat High Court and the same should be lookedinto……”

And again:

132 pages 280-283 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

133 pages 347-348 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

“….. As regards the DO letter dated 24-04-2002 sent byShri R.B. Sreekumar, the then Addl. DG (Int.) to Shri AshokNarayan, the then ACS (Home). Shri Narendra Modi has statedthat no such letter was put up to him. However, Shri AshokNarayan, the then ACS (Home) has stated that the lettercontained general observations and concrete details weremissing and therefore, he had discussed from Shri R.B.Sreekumar and requested him to take action at his level asfar as possible. Shri Ashok Narayan does not recollecthaving put up this letter to CM. Shri K. Chakravarthi thethen DGP has stated that most of the points and issuesraised by Shri R.B. Sreekumar had been effect1vely dealtwith in March & April, 2002. Shri Chakravarthi has also statedto have taken adequate steps to restore the loss of faith of theminority community in the Criminal Justice System by instructingthe concerned police officers to be fair to ensure proper registrationof FIR effect arrests of the accused persons and to proceed aheadWith the investigation as per law. Shri Chakravarthi has also statedthat the, teams of the police officers were sent to the relief campsfor direct contact with the affected persons and to proceed withthe investigation in fair manner. Shri Chakravarthi has alsospoken of having given instruction to the senior officers to closelysupervise these cases to avoid any allegations. According to ShriChakravarthi, special instruction was given by him to all the policeofficers to provide suitable protection to those who wanted toreturn to their original residenceI Business. Regarding the law &order situation, review report sent by Shri R.B. Sreekumar toHome Department on 15-06-2002, requesting the postponementof the Rath-Yatra till an atmosphere of durable peace and goodwillwas established between the majority and minority community,Shri Ashok Narayan has stated to have discussed the matter withChief Minister, who did not agree with the views of Shri Sreekumarto stop the Rath-Yatra, as this was an event in vogue for so manyyears. Shri Ashok has also stated that the Administration did notagree with the view of Shri Sreekumar and the Rath-Yatra wastaken out on 12-07-2002, under police bandobast and the eventpassed off peacefully. Further, according to Shri Chakravarthi,these were the personal views of Shri Sreekumar, which wereduly considered by the Govt. Shri Chakravarthi has also statedthat the report sent by Shri Sreekumar was not well through ofand was not based on realities and therefore Govt. did not agreewith the view of Shri Sreekumar and that his apprehensions werewithout any basis. Coming to another report on the prevailing law& order situation sent vide letter dated 30-08-2002 with theapproval of Shri Sreekumar, it may be mentioned that the gist ofpresentation made before the Election Commission on 09-08-2002,was included in the same. In nutshell Shri Sreekumar projected inthis letter that the communal tension continued and the communalgap had widened between Hindus and Muslims and that any minorissue would reignite communal passions resulting in clashes ashad been witnessed in Dhoraji, Rajkot on 17-08-2002. Shri AshokNarayan has stated that he sent DO letter dated 09-09-2002 toShri Sreekumar that his assessment of law & order situationconveyed on 20-08-2002, was not in tune with the feedbackreceived by him from other agencies. Shri Ashok Narayan hasfurther pointed out that some feeling of insecurity amongstthe minority community was understandable in isolatedpockets, but the same did not indicate the feelings ofinsecurity anymore. Shri Ashok Narayan disagreed with theviews of Shri Sreekumar on the ground that no broad basedinputs were relied upon by him before arriving at aconclusion. As regards the letter dated 28-08-2002 ShriAshok Narayan, the then ACS (Home) has stated that hedid not recall the action taken by him on the said letter, butthe suggestions made therein seemed logical and in normalcourse action must have been taken by the HomeDepartment. Shri K. Chakravarthi has stated that as far aspolice department was concerned, he had given directionsbased on his suggestions. However, the relevant files on thesubject have not been made available by the Govt. of Gujarat.Keeping in view the versions of Shri Ashok Narayan, ShriK. Chakravarthi and Shri Narendra Modi about the Rath-Yatraand also about the DO letter dated 09-09-2002 sent by Shri AshokNarayan to Shri Sreekumar, it can not be said that no actionwas taken on the views sent by the latter to the Govt. Inview of the position explained above the allegation is notestablished……”

(emphasis supplied)

DEFG

49. Reverting to the allegation coined as “Allegations Carried byTehelka Magazine”, the final report deals with the same as follows[134]:-

Allegations carried by Tehelka magazine:

BWhen confronted with the interviews given by Shri HareshBhatt, the then MLA, Babu Bajrangi and Rajendra Vyas, President,VHP Ahmedabad City to Shri Ashish Khetan, SpecialCorrespondent, Tehelka, Shri Narender Modi has stated that theallegations leveled against him were false and incorrect. He hasfurther stated that this issue was raised in November 2007, afterCabout six years of incident and that too at the time of elections inDecember, 2007. Further, these issues were again raked up inApril 2008 when the SIT was appointed by the Supreme Court.Shri Modi has also stated that this issue was again raised on22-02-2010, when he was to appear before the SIT for hisDexamination. According to Shri Modi, the whole episode ismotivated and stage managed and that he had no personalknowledge about the authenticity of the said CD.In this connection, it may be added here that Shri HareshBhatt, formerly MLA and accused Babu Bajrangi in NarodaPatiya case have admitted their voice as also the contents of theCD. Shri Haresh Bhatt has stated that one Shri Ashish hadapproached him that he wanted to write thesis on Hindutva andwanted him to contribute some spicy material for the same, sothat he could succeed in his mission. He has further stated thatAshish visited him at his residence in Ahmedabad City as well asat Godhra at least 7-8 times in month period and when thereference came to Gujarat riots, he gave an imaginary story asAshish wanted some spicy material for his thesis. He has statedthat the talks about CBI inquiry, the fact that he owned agun factory where diesel bombs and pipe bombs were madeand distributed to Hindus, the fact about two truck load ofswords ordered from Punjab and subsequently distributedamongst Hindus, making of rocket launcher in his gunfactory by filling them with gun powder and lighting 595

134 page 352 of original copy of the final report forming part of Convenience CompilationHof respondent No. 2

local made bomb to blast were absolutely false and baseless.He has also mentioned that his talk about Shri NarendraModi having openly said that we had three days to do,whatever we could do and that he would not give us timeafter that, were imaginary story and that Shri Modi nevertold these things to him.

Shri Babu Bajangi has stated that Shri Ashish Khetanhad given him script and he simply read out the same and thatnone of those facts were correct. After going through the factsstated by these persons during the sting operation, it appears thatthey were bragging and that most of the facts stated by them areinnocent. Further, they were not questioned as to how and whenShri Narendra Modi gave them three days time. The facts abouta gun factory owned by Shri Haresh Bhatt and changing thejudge thrice by Shri Narendera Modi are unacceptable byany stretch of imagination inasmuch as no such gun factorycould be unearthed by the police and Shri Modi was notcompetent to transfer could be unearthed by the police andShri Modi was not competent to transfer the judges, as thesame is the prerogative of the Gujarat High Court. Thereare many factual inaccuracies in the statement of Babu Bajrangiinasmuch as he has stated that there were 700-800 dead bodies inNaroda Patiya and that the Commissioner of Police had instructedthe policemen to throw it at different places in Ahmedabad City,as it would be difficult to explain the same. This is absolutelyincorrect inasmuch as only 84 dead bodies were found at NarodaPatiya and 11 persons were reportedly missing. In any case thisevidence has already been adduced in the Court and the matter issubjudice and hence no further comments……”

(emphasis supplied)

50. It is indisputable that the Tehelka tape was the brainchild ofMr. Ashish Khaitan who was working with Tehelka. He had conductedan enquiry of similar nature in the past, where the workers of VHP hadindulged in vandalism and manhandled some of the students and aprofessor over painting wherein objectionable images of Hindu Deitieswere displayed. Mr. Ashish Khaitan, in order to conduct sting operationon this occasion, used spy camera and also prepared an identity cardin assumed name of Piyush Agarwal of Delhi University. He visited

ABaroda and conducted sting operation on Mr. Dhimant Bhatt, ChiefAuditor of M.S. University, Baroda and office bearer of VHP.Thereafter, from May to September, 2007, he recorded the audio/visualconversations of 18 individuals pertaining to post-Godhra riots. Thetelecast of the sting operation was published on 27.10.2007 in televisionchannels. After such publication, the NHRC directed CBI to submitBreport vide order dated 5.3.2008. The CBI in the course of enquiry,collected certain information and submitted report to the NHRC, opiningregarding authenticity of the recordings in the sting operation and operation‘Kalank’ delineating four points: -“(i) Video signals in the footage of the DVDs P-V/D-1 to P-v/D-C15 match in respect of speech, utterances, laugher, stray ringingtones of mobile hand sets, movements of body parts and bodylanguage of the persons appearing in the recorded events.

(ii) No Evidence of editing, alteration and tempering has beendetected in the audio video recordings and their respective voiceDtrack recorded in the DVDs, exhibits P-V/D 1 to P-V/D-15 (ii)Cameras exhibits P-I/I and P-II/I are in working order.

(iii) The camera characteristics of the video clips, their signals,frame coordinates and number of frames per second of the videofootage and the time lag of audio track recorded I the DVD exhibitsEP-V/D-I to P-V/D-15 are similar to the camera signals, frameco-coordinators, number of frames per second and the time lag ofaudio track recordings of cameras P-I/I and PII/I and hence theDVDs could have been recorded with the camera exhibit P-I/Iand the camera exhibit P-II/I.

(iv) large number of video clips produced in the video CDsexhibits P-V/C-I to P-V/C-5 have been taken from the videofootages of DVDs exhibits PV/D-I to P-V/D-15 on the CDs.However, in some of the clips of CDs, the voice (audio signals) inthe recording of DVDs have not been produced.”GFrom this report, the technical veracity of the tape can be accepted

GFrom this report, the technical veracity of the tape can be acceptedon the basis of CFSL report. However, as that would not be sufficient,the SIT recorded the statements of 13 persons who were available andhad made revelations on Tehelka tape. As aforesaid, only one of themhas been named as offender (No. 22) in the complaint filed by theappellant, namely, Babubhai alias Babu Bajrangi. The material from stingH

operation has been submitted by the SIT in three (3) out of nine (9) setsof cases assigned to SIT by this Court, namely, in Gulberg Society, NarodaPatiya and Naroda Gaam, where the persons making revelations havebeen named as accused in the concerned case. As regards the evidencefrom the stated sting operation produced by the SIT in CR No. 67/2002concerning Gulberg Society, the trial Court in its judgment dated26.12.2013 after analyzing the same, has held that sting operation canat best be good corroborative material against the accused who arestung by the operation, relying on the decision of this Court in R.K.Anand[135]and Rajat Prasad[136]. We do not wish to elaborate further onthe view taken by the trial Court in the stated case, as it is pendingchallenge. Suffice it to mention that Mr. Babu Bajrangi has already beenchargesheeted and tried in connection with the evidence concerning stingoperation in which he was stung. The SIT had noted that call details ofMr. Babu Bajrangi reveal that he was in Ahmedabad from morning till11:15 hrs. on 27.2.2008 and could not have remained present at Godhraat the time of incident.

51. We find force in the argument of the respondents that althoughthe sting operation was not part of the complaint filed by the appellant orthe report of the learned Amicus Curiae, but the same has been thoroughlyinvestigated by the SIT including by recording statement of 13 personswho were stung. At the end of the investigation, the SIT found that otherpersons whose statements were recorded by the SIT were not accusedin any case and also no corroborative evidence pertaining to any largerconspiracy was found in their statements. Absent such corroborativematerial, the evidence in the form of sting operation can be of no avail,much less to take forward the allegation of larger criminal conspiracy at

the highest echelon of the administration. No evidence regarding meetingof minds could be culled out from the statements of the concerned persons,much less to link the offenders named in the complaint of appellant.

52. The emphasis placed on purported extra-judicial confessionof 18 persons as recorded in Tehelka tape, it needs to be understood thatthe extra-judicial confession can at best be used against the maker andnot against others[136A]. Further, such statements need corroboration tobe used against other accused. The SIT nevertheless recorded statement

135 supra at Footnote No. 85

136 supra at Footnote No. 85136A see: Section 30 of the Indian Evidence Act, 1872

Aof 13 out of 18 persons, who had made revelations, as recorded in Tehelkatape. Out of them, only Mr. Babu Bajrangi Patel, Member, Bajrang Dalhas been named as an offender in the complaint submitted by appellant.The SIT in its final report, has considered the relevant aspects whiledealing with offender No. 22 – Mr. Babu Bajrangi Patel, in the followingwords[137]: -B

A-22: Shri Babu Bajrangi Patel, Member, Bajrang Dal.

Shri Babu Bajrangi has stated that he joined Bajrang Dal in1995, later got introduced to Shri Pravin Togadia, Shri JaydeepCPatel and Home Minister Shri Gordhan Zadafia and also case incontact with other Sangh Parivar activists. He has stated to havecome to know about the Godhra carnage through TV news on27-02-2002, in which one of the Kar-sevaks, namely, ShriBhimjibhai K. Patel belonging to his community was also killed,Dwhereas other kar-sevaks from his village namely Shri DharmendraPatel and others survived. He has further stated that his nephewShri Bharat R. Patel had visited Godhra on 27-02-2002, by car onthat day and returned to Ahmedabad in the night. He has takenthe plea that mobile phone no. [REDACTED] was used by his nephewShri Bharat Patel. He has further stated that he went to Sola CivilEHospital on 28-02-2002 at about 0700 hrs and the dead body ofBhimji K. Patel was identified by Shri Vashrambhai, uncle of BhimjiPatel, taken by them to their village, and they arrived at about1330 hrs. The funeral of Late Bhimjibhai Patel was over at about1530 hrs and thereafter, he has stated to have gone to KhedbrahmaFalong with Shri Dharmendra Patel. He has further stated that hestayed at Khedbrahma on 28-02-2002, as the communal riots haderupted and no transport was available. According to Shri BabuBajrangi, he returned to Naroda on 01-03-2002 late in the nightand was informed by his family members that he had been namedas an accused in Naroda Gam and Naroda Patiya carnage cases.GThereafter, he has stated to have left for his elder sister Laxmiben’shouse on 02-03-2002, who stays in village Kevdia-Kampa andstayed there for about three or four months. As per Shri Bajrangi,he was arrested by the Crime Branch, Ahmedabad City, on

137 pages 365-366 of original copy of the final report forming part of ConvenienceHCompilation of respondent No. 2

28-02-2002, taken on remand for 10 days and then sent to jail.Subsequently, he was released on bail on 19-10-2002.

He has admitted that Shri Ashish Khetan met him as PiyushAgarwal and informed him that he was making film on Hinduismand that he has to pay role in it and speak some dialogues. Hehas admitted his voice, and the conversation held with Shri AshishKhetan, but has taken the plea that he had read the dialogues asper written script given by Shri Ashish Khetan. However, hehad stated that all these facts were incorrect and that he hadspoken the same, as Shri Ashish Khetan asked him to do so.

It may be mentioned here that Shri Babu Bajrangi hasalready been charge sheeted in Naroda Patia case (Naroda P.S.I.CR No. 100/2002) as well as Naroda Gam case (Naroda P.S.I.CR No. 98/2002) and is facing trial. In view of the fact that thematter is sub-judice, no action is called for in the matter……”

53. The SIT has not found any conspiracy, linking separate anddisparate acts of arson and looting or outrageous claims made in stingoperations or individual utterances/publications of purported hate speech,to any singular larger conspiracy or planned event. The materials gatheredduring the investigation, in no way link any “meeting of the minds” in anyof the nine (9) cases investigated by the SIT or for that matter, otherincidents alleged in the complaint or the protest petition. The riots acrossthe State had taken place spontaneously, immediately after the GodhraTrain Carnage. In the investigation done by the SIT in all the nine (9)sets of cases, no material was discovered pointing towards any meetingof minds/conspiracy in the higher echelons of the administration or thepolitical establishment conspired with other persons to cause such riotsor for having turned nelson’s eye when the riots had triggered andcontinued. There is no chain or any perceivable link or connection inthese occurrences during the relevant period, which ought to be thequintessence had it been case of larger conspiracy at the highest level.Indeed, the factum of conspiracy can be inferred, but absent anyperceivable link, much less about the meeting of minds of all concerned,it is not open to assume conspiracy in the air.

54. From this discussion, it is amply clear that the argument pressedinto service on the premise of no investigation done by SIT on crucialmatters is contrary to the materials on record and we find that the opinion

Arecorded by the SIT is after due consideration of all aspects and backedby tangible materials gathered during investigation by it.

55. For the same reason, the argument regarding mass mobilizationsand hate speech on 27.2.2002 regarding proactive and aggressivebehaviour of persons returning from Ayodhaya/Kar-sevaks after theBGodhra attack, is tenuous. During the course of arguments, much effortwas made by the appellant to impress upon us that the SIT had not evenbothered to record the statement of Mr. Anil Patel, which the respondentshave duly refuted by pointing out from the record that there are threepersons with the same name - Anil Patel and the SIT had recordedstatement of all of them (Mr. Anil Shankerbhai Patel - VHP worker;CAnil Tribhovandass Patel – former Minister and named as one of theoffenders in the complaint; and Anil M. Patel - BJP Doctor Cell) - andalso analyzed the same in the final report. The appellant had referred tothe statements of Dr. Anil M. Patel, as if he was concerned with thesting rather than reading the statement of Mr. Anil Shankerbhai Patel.DSimilarly, incorrect submission was made in reference to Mr. ArvindPandya, Advocate, who was one of the persons stung in operation‘Kalank’. The appellant contended that he was appointed as publicprosecutor in riot cases. As matter of fact, Mr. Arvind H. Pandya, wasappointed as one of the defending Special Counsel for Gujarat State inJune, 2002 to defend the State Government before Nanavati-ShahECommission of Enquiry and he later resigned in October, 2008.56. Be that as it may, much argument was made about the post-mortem of dead bodies in the open in Railway yard and also, paradingthem from Godhra to Ahmedabad. According to the appellant, the post-mortem was done in the open yard as part of larger criminal conspiracyFto obliterate the real cause of death of Kar-sevaks at Godhra due to fireand then to transport the dead bodies to Ahmedabad so as to paradethem amidst shouting of provocative slogans so as to arouse passions.This plea taken in the protest petition is of pure conjectures and surmises.In that, the deaths had been caused due to the violent act of group ofGpersons (who were later identified after investigation and faced trialending in conviction) for setting the train (Coach S6 of Sabarmati Express)carrying Kar-sevaks on fire. The case concerning Godhra train episodewas also investigated by the SIT under the supervision of this Court andthat trial ended in conviction of 32 (thirty-two) persons and theconfirmation appeals for capital punishment have also been disposed of

by the High Court. In those proceedings, the Courts have considered theissue concerning post-mortem of dead bodies in the open in Railwayyard. In other words, the issue under consideration raised by the appellanthas already passed the muster of judicial scrutiny before the trial Courtand the High Court. Accepting the argument of the appellant on thisscore would need reinvestigation of the concluded case which must beeschewed and cannot be countenanced.

57. The allegation [No. (ii)] regarding parading of dead bodies,has been dealt with by the SIT with in the following words[138]: -

ALLEGATION No.II :

CM’s decision to bring the dead bodies of victims of Godhratrain fire incident to Ahmedabad and parade them inAhmedabad City.

Enquiries revealed that Smt. Jayanti Ravi, the then Collector& District Magistrate, Godhra Panchmahals District received atelephone call at about 0800 hrs from Shri Raju Bhargava, thethen Superintendent of Police, Panchmahals District that therehad been an incident of stone pelting as also torching of railwaycoach of the Sabarmati Express near Godhra Railway Station.Immediately, messages were conveyed to the concernedMunicipal Authorities at Godhra, Lunawada and Kalol to send thefire tenders to the spot. According to Smt.Jayanti Ravi, she reachedthe spot near Godhra Railway Station at about 0845 hrs. By thattime, crowd had assembled at Godhra Railway Station and theimmediate problem was to take care of the transit passengerswho had been stranded there, because of the fire and stone peltingincident. The injured passengers were given medical aid by theCivil Hospital, Godhra, whereas those, who had received severeburn injuries, were immediately admitted to the Civil Hospital,Godhra. Around 1200 hrs, the District Administrative officials couldstep into the S6 coach of Sabarmati Express with view to assessthe actual number of deaths in the incident. As the bodies in thecoach were charred and in mutilated condition, it was virtuallyimpossible to count the head. In order to ensure that the stranded

138 pages 261-263 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

DEFG

passengers were not put to any further inconvenience, the railwayauthorities detached the two affected/burnt bogies from the maintrain, parked them in the railway yard and joined the rest of thebogies together. Finally, the Sabarmati Express left Godhra around1300 hrs for Ahmedabad, its destination.

Shri Narendra Modi, Chief Minister arrived at Godhra byhelicopter sometime between 1600 hrs to 1700 hrs and wasaccompanied by Shri Anil Mukim, the then Secretary to CM. Hewas received at the helipad by Smt. Jayanti Ravi and Shri AshokBhatt and he straightaway drove to the Godhra Railway Station.CM inspected the spot and talked to some of the persons gatheredthere. Since, curfew had been imposed in the Godhra town, theChief Minister decided to go to Collectorate and meet the peopleas well as press. At that time Shri Gordhan Zadafia and ShriPrabhasinh Chauhan, the then Minister of Civil Aviation &Pilgrimage and being local MLA, had also come and they allwent to the Collectorate Smt Jayanti Ravi has stated that inthe meeting held at Collectorate, one Shri Jaydeep Patel, aVHP activist was also present. Smt. Jayanti Ravi has alsostated that after holding discussions, unanimous decisionwas taken that the dead bodies, which had been identifiedshould be handed over to their relatives at Godhra itselfand those bodies whose legal heirs or guardians had notcome, could be sent to Sola Civil Hospital, Ahmedabadsince, they belonged to Sabarmati Express heading towardsAhmedabad. Smt. Jayanti Ravi has categorically denied thatdecision was taken against her wishes. The decision to sendthe bodies to Sola Civil Hospital was taken in view of thefact that it was situated on the outskirts of Ahmedabad Cityand thus away from the crowded area for security reasons.It has further come to light that out of 58 burnt and deadbodies, 4 bodies belonging to Dahod, Vadodara, Panchmahaland Anand Districts were handed over to their legal heirs/guardians after identification at Godhra itself. The remaining54 dead bodies were to be sent with police escort to SolaCivil Hospital, Ahmedabad. Further, Shri Jaydeep Patel ofVHP was to accompany them.

Enquiries revealed that as per the call detail records of mobilephone no. [REDACTED] of Shri Jaydeep Patel, he reached Godhraon 27-02-2002 around 1248 hrs and remained there till 2358 hrs.At Godhra, he had made/received calls to/from Shri GordhanZadafia at the latter’s mobile phone no. [REDACTED]. All thesecalls had been made/received between 2003 hrs and 2113 hrs.He had also received calls from Shri R. J. Savani, the then DCP,Zone-V, Ahmedabad City from his mobile phone no. [REDACTED]between 1305 hrs and 2116 hrs. The aforesaid call detail recordsestablish that Shri Jaydeep Patel remained at Godhra till about2358 hrs on 27-02-2002.

Enquiries further revealed that Shri M.L. Nalvaya, the thenMamaldar & Executive Magistrate issued letter addressed toDr. Jaydeep Patel of VHP, in which he had mentioned that 54dead bodies were being sent through five trucks as detailed below:

One Shri Hasmukh T. Patel of Vishwa Hindu Parishad hadacknowledged the dead bodies. It may be mentioned here thatthe handing over of the dead bodies to their legal heirs/guardianswas the duty of the railway police, who had registered case inconnection with this incident. Shri M. L. Nalvaya has stated thatthese dead bodies were handed over officially to Shri JaydeepPatel and Shri Hasmukh T. Patel of VHP as per the instructiongiven by Smt. Jayanti S. Ravi, DM and Late B. M. Damor, ADM,Godhra. Shri M. L. Nalvaya has filed an affidavit before NanavatiCommission of Inquiry to this effect on 05-09-2009. HoweverSmt. Jayanti Ravi has stated that no such instructions weregiven to Shri Nalvaya to hand over the dead bodies to ShriJaydeep Patel or Shri Hasmukh T. Patel of VHP and that

Shri Jaydeep Patel was merely to accompany the deadbodies to Ahmedabad.

Shri Raju Bhargava, the then Superintendent of Police,Godhra has stated that since, there was curfew in the town, hehad arranged for four (4) mini trucks, Tata-407 and one Tata-608tempo for the transportation of the aforesaid dead bodies. Healso arranged for the police escort with pilot gypsy. Further, oneSub Inspector was sent in gypsy with some other staff and twoarmed guards each were made to sit in the aforesaid five vehicles.The convoy left Godhra around midnight intervening 27/28-02-2002 for Ahmedabad by road. On the way to Ahmedabad, theescorts from the concerned districts had replaced each other. Thefive trucks carrying dead bodies reached Sola Civil Hospital,Ahmedabad between 0330 hrs to 0400 hrs on 28-02-2002. AtSola Civil Hospital, Dr. Pushpa Belani, Medical Superintendent,PI Lathiya of Sola P. S., Shri Prajapati, Deputy Collector, ShriK. Srinivas, Collector and several other Administrative and PoliceOfficers were present. Shri Jaydeep Patel handed over the letterto Shri Prajapati, the then Dy. Collector and the police and theadministrative officials got busy with the preparation of panchnamaand other documentation. The relatives of the persons, who haddied in the Godhra carnage, were also present in the hospital.Accordingly, 35 persons were identified and their dead bodieshanded over to their relatives by about 1300 hrs on 28-02-2002 bythe police after obtaining receipts from them. It may be mentionedhere that 25 dead bodies were claimed by the residents ofAhmedabad, two (2) by the residents of Kadi, Mehsaha, five (5)by the residents of Anand, two (2) by the residents of Khedbramha,Sabarkantha and one (1) from Rajkot. The photographs and DNAsamples of the remaining unidentified 19 dead bodies were takenby the hospital authorities. These 19 unidentified dead bodies werecremated on 28-02-2002, at Gota cremation ground near Sola CivilHospital by the District Administrative and Police officers withthe help of Surpanch of Gota village, which is situated on theoutskirts of Ahmedabad city. The cremation was completed byabout 1830 hrs on 28-02-2002.

On 28-02-2002, twelve (12) charred dead bodies of Godhracarnage were brought to Ramol, Ahmedabad City from Sola Civil

Hospital. All these deceased persons belonged to Ramol-Khokhraarea. Shri M.K. Tandon, Jt. CP, Sector-II instructed Shri R.J.Savani, DCP, Zone-V to make efforts to ensure that the deadbodies were moved in vehicle and not by foot, as the same wouldhave esoalated the tension. It may be mentioned here that ten(10) kar-sevaks belonged to Ramol and two (2) kar-sevaks werefrom Khokhra. Shri R.J. Savani succeeded in persuading therelatives and the well wishers of the deceased to take each bodyin vehicle and the funeral procession was guarded by the policeup to Hatkeshwar cremation ground, about 4 kms away fromRamol-Khokhra. The funeral was over by about 1400 hrs. andthe crowd which had gathered on the highway dispersed thereafter.It may thus be seen that the journey from Godhra toAhmedabad started around midnight and the dead bodiesreached Sola Civil Hospital sometime between 0330 to0400 hrs and there was no one on the highway at that pointof time in the night to see them. Further, though letterhad been addressed by Shri M.L. Nalvaya in the name ofShri Jaydeep Patel of VHP and the dead bodies wereacknowledged by Shri Hasmukh T. Patel of VHP, yet thedead bodies were escorted by the police upto Sola CivilHospital, Ahmedabad situated on the outskirts ofAhmedabad City. At Sola Civil Hospital, Shri Jaydeep Patelhanded over the letter to the hospital authorities and thelocal police as well as the hospital authorities took chargeof the dead bodies. Subsequently, 35 dead bodies werehanded to the legal heirs/guardians of the deceased by thepolice after completing the formalities and documentation.The 19 unidentified dead bodies were cremated quietly onthe same evening by the local administration and policeauthorities at Gota cremation ground nearby with the helpof Sarpanch of Gota village after retaining their DNAsamples. Subsequently, 12 dead bodies could be identifiedafter conducting DNA tests, while the remaining seven (7)remained unidentified.

The above facts would go to establish that though aletter had been addressed by Mamalatdar, Godhra to ShriJaydeep Patel of VHP, yet the dead bodies were escorted

by the police from Godhra to Ahmedabad, where the samewere taken charge of by the hospital authorities, DistrictAdministrative and Police Officers and handed over to thekith and kin of deceased persons after taking properreceipt. Further, the unidentified bodies were disposed ofby the District Administrative and police officers. The factthat 25 deceased persons belonged to Ahmedabad, 2 toMehsana, 1 to Rajkot and 2 to Sabarkantha places accessiblevia Ahmedabad and the same were claimed by their legalheirs/guardians at Ahmedabad justifies the decision totransport the dead bodies from Godhra to Ahmedabad. ShriP.C. Pande, the then CP, Ahmedabad City has stated that therehad been no parading of dead bodies inasmuch as the truckscarrying the dead bodies under police escort reached AhmedabadCity between 0330 hrs to 0400 hrs on 28-02-2002, which meansthey had started from Godhra at least three hrs earlier and assuch there was no one to see them on the highway at dead of thenight, Shri Pande has also stated that in Ahmedabad City, thedead bodies were kept in Sola Civil Hospital situated on the outskirtsof the City and that most of the dead bodies were handed over totheir relations after proper documentation by 28-02-2002 morning.

In view of the aforesaid discussions, the allegationthat CM’s decision to bring the dead bodies of those killedin Godhra carnage to Ahmedabad was with view to paradethem in the City is not established. Further, the allegationthat the dead bodies were handed over to Shri JaydeepPatel, is also not established, inasmuch as he onlyaccompanied the dead bodies from Godhra to Ahmedabad,and that the custody of the dead bodies remained with thepolice escort and thereafter with the Sola Civil HospitalAuthorities, Administrative and Police authorities. Theallegation that the dead bodies were transported toAhmedabad against the wishes of Smt. Jayanti Ravi isproved to be incorrect. Shri M.L. Nalvaya Mamalatdar hadacted in an irresponsible manner by issuing letter in thename Shri Jaydeep Patel in token of having handed overthe dead bodies, which were case property, is being dealtwith departmentally for this lapse……”

(emphasis supplied)

While dealing with the allegation against the then Chief Ministerin this regard, the final report has analyzed the same in the followingwords[139]: -

Despatch of dead bodies to Ahmedabad:

The allegations as mentioned in the complaint dated08-06-2006 of Smt. Jakia Nasim are vague and general in natureAs regard the specific allegation of the decision to take the deadbodies of Godhra train victims to Ahmedabad, it has come inevidence that Shri Narendra Modi attended the Assembly on27-02-2002, when Shri Gordhan Zadafia the then MoS (Home)made brief statement about the Godhra incident. The ChiefMinister also informed the Assembly that at proposal foran ex-gratia payment of Rs. 2 lakhs to each victim was underconsideration of the Govt. As it was budget day, ChiefMinister attended the Assembly proceedings and left forGodhra thereafter. At the Godhra Collectorate, after holdingdiscussions, unanimous decision was taken that the deadbodies which had been identified should be handed over totheir relatives at Godhra itself and those bodies whose legalheirs or guardians had not come, could be sent to Sola CivilHospital. Ahmedabad, since they (deceased) werescheduled to travel to Ahmedabad by Sabarmati Express.It has further come to light that the decision to send thebodies to Sola Civil Hospital was taken after taking intoaccount that the hospital was situated on the outskirts ofAhmedabad City and thus away from the crowded area forsecurity reasons. It has also come to light that out of 58 deadbodies 4 bodies, belonging to Dahod, Vadodara, Panchmahal andAnand Districts, were handed over to their legal hears guardiansafter identification at Godhra itself. The remaining 54 dead bodieswere spent under police escort to Sola Civil Hospital, Ahmedabadand Shri Jaydeep Patel of VHP accompanied them. Smt. JayantiRavi, the then Collector, Godhra has categorically denied that thedecision was taken against her wishes.

139 pages 337-338 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

CDEFG

AAs regards the parading of dead bodies, it has come to lightthat Shri M.L. Nalvaya, Mamlatdar, Godhra had issued letterdated 27.02.2002 addressed to Shri Jaydeep Patel, in which itwas mentioned that 54 dead bodies as per list enclosed were beingsent to Ahmedabad through five trucks whose details were givenin the said letter. It has further come to light that trucks and escortsBwere arranged by SP, Godhra and the convoy carrying the deadbodies left Godhra around midnight, reached Sola Civil Hospital,Ahmedabad between 0330 hrs to 0400 hrs on 28.02.2002, andwere taken charge from Shri Jaydeep Patel by the DeputyCollector in present of the Medical Superintendent, Police InspectorCSola P.S., Collector, DCP Zone-I and several other police andadministrative officials. It has further come to light that around 35identified dead bodies were handed over to their relatives by about1300 hrs on 28.02.2002. It has also transpired that 25 dead bodieswere that of the persons belonging to Ahmedabad, 2 of Kadi-Mehsana, 5 of Anand, 2 of Sabarkantha and 1 of Rajkot. TheDremaining 19 dead bodies remained unidentified and werecremated together on 28.02.2002, by the Hospital, DistrictAdministrative and Police Officials on the same evening afterretaining their DNA samples in Gota cremation ground nearer tothe hospital. The 12 dead bodies belonging to Ramol and KhokhraEwere taken in vehicles and cremated at Hatkeshwar cremationground……”

(emphasis supplied)

The thrust of the opinion formed by the SIT upon analyzing therelevant materials in connection with this allegation is that the decisionFto carry the dead bodies from Godhra to Ahmedabad for being handedover to their relatives, was unanimous decision taken at the GodhraCollectorate. This decision was taken as most of the passengers wereto travel to Ahmedabad and their relatives had not reached or wereunable to reach Godhra to collect their bodies. It was also decided thatGbodies will be carried to Sola Civil Hospital located on the outskirts ofAhmedabad City and thus away from the crowded area for securityreasons. Most of the dead bodies (54 unclaimed at Godhra) were ofpersons who were ordinarily residing in and around Ahmedabad. Afterthe bodies were carried to Ahmedabad hospital under police escort, 35bodies could be identified and came to be handed over to their relatives

on 28.2.2002. The remaining 19 bodies were cremated together by policeand the civil administration on 1.3.2002. Out of these 19 dead bodies, 12could be identified later by DNA test. Thus, the entire exercise waswithin the control and supervision of the administration and there was noparading of dead bodies, as alleged. There was no undue haste in carryingthe bodies including cremation thereof. The essential protocol wassubstantially followed in that respect. This opinion recorded by the SITin its final report is consistent with the circumstances and materialsgathered during the investigation. Suffice it to note that the allegationunder consideration is unfounded and has been rightly discarded by theSIT.

58. The appellant had also placed emphasis on the allegations[No. (v)] in the complaint about the Cabinet Ministers positioningthemselves in the City Police Control Room and issuing instructions, tobuttress their argument about State sponsored violence, as stated in theaffidavit filed by Mr. R.B. Sreekumar. This allegation has been thoroughlyenquired into by the SIT and analysis of the materials can be discernedfrom pages 266 to 269[140]. The same reads thus: -

ALLEGATION No.V :

Cabinet Ministers I.K Jadeja and Ashok Bhat werepositioned in the DGP office and Ahmedabad City ControlRoom respectively by CM.

During the course of enquiries into this allegation ShriR. B. Sreekumar has stated that either on 1st or 2nd March, 2002,Shri K. Chakravarthi, had criticised the Govt. about the positioningof Shri I.K. Jadeja in the DGP’s office after the Godhra incidentand was feeling depressed, as the presence of Minister in hischamber had adversely affected his supervision of the riot situation.He also stated to have personally seen Shri I.K. Jadeja, CabinetMinister using the official telephone of the DGP in his chamber.

Shri Ashok Narayan, the then ACS (Home) has stated thaton 28-02.2002, two high level meetings were called by the Chief

Minister, one in the early morning and other late in the evening,

140 pages 266-269 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

which were attended by him, acting Chief Secretary, DGP andADGP (Int.). In the meeting held in the morning, the law & ordersituation was reviewed by the Chief Minister. According to ShriAshok Narayan, he does not recall any instructions given by theChief Minister to the DGP and CP, Ahmedabad that Shri AshokBhatt and Shri I.K. Jadeja would sit in the Ahmedabad City PoliceControl Room, Shahibaug and State Control Room, Gandhinagarrespectively and assist/help the police in their operation.

However, Shri K. Chakravarthi has stated that he wasinformed by Shri Ashok Narayan that it was decided by the Govt.,that Shri I.K. Jadeja would sit in DGP’s office on 28-02-2002, toget information about the Law & Order situation in the State, asthe State Control Room was located in his office. Shri AshokNarayan also informed him that Shri Ashok Bhatt would similarlysit in the Ahmedabad City Police Control Room situated in theoffice of the CP, Ahmedabad City. On this Shri K. Chakravarthihad told him that it would be better if the Ministers get theinformation through Control Room in the Home Department ashe was bound to report all the information to the HomeDepartment. Thereupon, Shri Ashok Narayan informed ShriChakravarthi that no such facility was available in the HomeDepartment and therefore the Ministers would visit their offices.Shri Chakravarthi has further stated that Shri I.K. Jadeja visitedhis office on 28-02-2002 (F.N.) and sat in his chamber for15-20 minutes. According to Shri Chakravarthi, he could not havemuch conversation with him, as he remained extremely busy withthe telephone calls being received by him from the various policeofficers. Shri Chakravarthi thereafter asked someone to shift theMinister to an empty chamber in his office and this was done.Shri Chakravarthi was not aware as to what Shri Jadeja did inthat room as he himself remained awfully busy with the telephonemessages and follow up actions with the prevailing bandh situationin the State. Later, he came to know that Shri Jadeja had left hisoffice. Enquiries conducted by Shri Chakravarthi with his StaffOfficer and Officer of the State Control Room revealed that therewas no interference from Shri Jadeja on the functioning of StateControl Room on that day. Shri Chakravarthi has also stated thatto the best of his knowledge, Shri Jadeja did not visit his officesubsequently. As regard the positioning of Shri Ashok Bhatt in

Ahmedabad City Control Room, Shahibaug, Shri Chakravarthidenied personal knowledge and stated that CP, Ahmedabad Citywould be in better position to clarify that matter.

Shri Sanjiv Bhatt, the then DCI (Security) has claimed thathe had attended meeting at CM’s residence at 1030 hrs on28-02-2002 along with the DGP and ADGP (Int.). After themeeting, he returned to his chamber on the second floor of PoliceBhavan at about 1100 hrs and shortly thereafter went to meet theDGP on the first floor of the same building. When he enteredDGP’s chamber he found that as instructed after the conclusionof CM’s meeting, two Cabinet Ministers of Gujarat, namely, ShriAshok Bhatt and Shri I.K. Jadeja had already arrived and weresitting on sofa-set in DGP’s chamber. He further stated thatShri G.C. Raiger the then Addl. DG (Int.) and Shri Maniram, thethen ADO (Law & Order) were also present there. Shri SanjivBhatt briefed the DGP and after taking tea, he returned to hischamber. Shortly, thereafter, Shri Sanjiv Bhatt happened to go toState Control Room on first floor to collect some documents andsaw Shri I.K. Jadeja and· his supporting staff sitting in the chamberof Dy. SP. Control Room. Finding this little odd, Shri SanjivBhatt went to DGP and informed him that it would be improper topermit outsiders in the State Control Room and asked him whetherthe Minister and his supporting staff could be shifted from theState Control Room. DGP agreed with his decision and thereafter,Shri Sanjiv Bhatt again went to Control Room and requested ShriI.K. Jadeja to accompany him as his presence in the Control Roomwould hamper the smooth functioning of the State Control Roomduring such critical period, whereupon the latter got up andfollowed him. According to. Shri Sanjiv Bhatt, he took Shri Jadeja,Minister to an empty chamber of Shri P. C. Thakur, the then IGPand requested him to make himself comfortable and contact themfor any assistance/requirement. Shri Chaktavarthi was informedabout it. Shri Sanjiv Bhatt has also stated that subsequently helearnt that Shri Jadeja left the Police Bhavan sometime in theafternoon, after having lunch. Shri Sanjiv Bhatt was not awareabout presence of Shri Jadeja in the Police Bhavan on thesubsequent days, but he recollects that the some of the supportingstaff of Shri Jadeja was seeking certain information from the StateIB on that day and on subsequent two or three days.

However, this version of Shri Sanjiv Bhatt iscontradicted from the call detail records of his Govt. mobilephone no [REDACTED], which shows that on 28.02.2002, heremained at Ahmedabad till 1057 hrs at his residence andas such he could not have attended meeting at CM’sresidence at 1030 hrs as claimed by him. Similarly, his claimof having seen Shri I.K. Jadeja, the then Minister around1100 hrs in DGP’s office is also falsified from the call detailrecods of his mobile phone in asmuch as he could not havereached DGP office, Gandhinagar before 1130 hrs from hisresidence in Memnagar, Ahmedabad.Shri I. K. Jadeja, the then Minister of Urban Housing, Roads& Building and Capital projects has stated that on 28-02-2002,Shri Gordhan Zadafia, the then MoS (Home) had requested himto remain present in the DGP’s office in Police Bhavan,Gandhinagar to see that in case any information is received in theControl Room about any rioting incident or request is received forextra police force or any other issue of importance then the sameshould be passed on the DGP, Home Minister etc. In view of thisrequest, he remained present in the office of DGP ShriK. Chakravarthi for 3-4 hrs for next 3/4 days. However, he doesnot recollect as to what work was done by him, but in case someinformation was received about some incident from the partyworkers/common man, the same was passed on to the DGP fornecessary action. He has denied to have contacted/instructed anyof the police officers over telephone installed in the office of theDGP to take action in particular manner. He has categoricallystated that he did not interfere with the work of the DGP ordisturb the police officers in the discharge of their officialduties. He does not remember to have used the telephoneinstalled in DGP’s office. He has also stated that the DGPhad not shared any information with him and therefore, hehad left the Police Bhavan within few minutes on subsequentoccasions.

Shri P. C. Pande, the then CP, Ahmedabad City has statedthat it was incorrect to say that Shri Ashok Bhatt, the then HealthMinister was stationed at Shahibaug Control Room on 28-02-2002to guide the police force in controlling the Law & order situation.

He has further stated that Shri George Fernandes, the then UnionDefence Minister visited Ahmedabad on 0l-03-2002 and came toCP office to find out as to whether Army had been deployed inthe State or not. Shri Fernandes reached CP’s office around l000or l030 hrs and asked Shri Pande about the deployment of Army,to which latter said that they could check up from the ControlRoom. Both of them went to the Control Room downstairs.According to Shri Pande, Shri Ashok Bhatt, who had been waitingfor Shri Fernandes in the circuit House, also came to CP’s officeto meet Shri Fernandes and entered the Control Room Shri Pandehas also stated that Shri Fernandes and Shri Ashok Bhatt remainedin the Control Rooh1 for about ten minutes and then left CP’soffice. According to Shri Pande, during this visit to the ControlRoom, some of the press and media persons were also presentand as such it was somehow made to appear that Shri AshokBhatt had come to monitor the Control Room. Finally, Shri Pandehas stated that Shri Ashok Bhatt was never deputed to ShahibaugPolice Control Room to guide or advise the police.

According to Shri Ashok Narayan he does not recallinstructions given by the Chief Minister, which were conveyed byhim either to the DGP or CP, Ahmedabad City to the effect thatShri Ashok Bhatt and Shri I.K. Jadeja would sit in the AhmedabadCity Police Control Room, Shahibaug and State Control Room,Gandhinagar respectively and assist/help the police.

Late Ashok Bhatt had earlier stated that he might havevisited Ahmedabad City Control Room for about 5-10 minutes on28-02-2002. However, he has denied to have interfered with thepolice work, as being senior minister he had to maintain hisdignity and status. Again on 01-03-2002, he admitted to have visitedthe Shahibaug Control Room for about 10 minutes to meet ShriGeorge Fernandes, who had gone to CP’s office. The call detailrecords of Govt. mobile phone no. [REDACTED] of Late AshokBhatt show that he returned from Godhra to Ahmedabad on28-02-2002, at about 05:16:51 hrs. Thereafter, the call details donot show its location till 15:50:43 hrs on 28-02-2002, when thelocation was traced to Koba Circle, Gandhinagar. During thisperiod, it is presumed that he was at Gandhinagar. His location on28-02-2002 at 16:16:37 hrs to 17:47:22 hrs was shown as Shahibaug

Kedar Tower, Ahmedabad City, which would conclusively provethat during this period he attended CM’s press conference at CircuitHouse Annexe, Shahibaug, Ahmedabad City. Thereafter, againthe location was seen at 17:59:22 hrs at Koba Circle, Gandhinagar,which shows that he was returning to Gandhinagar. It may thusbe seen that these call details would conclusively go to establishedthat Late Ashok Bhatt did not visit Shahibaug Police Control Roomon 28-02-2002. It would not be out of place to mention here thatthe matter was more than seven years old, when Late AshokBhatt and others were questioned and as such the documentaryevidence is to be relied upon instead of depending upon the memoryof the different individuals, who have given different versions.

Shri Nissar Mohammad Malik, the then PSI, who was onduty in the Police Control Room, Ahmedabad City from28-02-2002 at 0800 hrs to 02-03-2002 at 0800 hrs, has stated thatShri George Fernandes, the then Union Defence Minister andShri Harin Pathak, the then MoS for Defence, had come to PoliceControl Room, Ahmedabad City at 1005 hrs. on 01-03-2002, andleft at 1025 hrs. He has confirmed that wireless message in thisregard to be under his signatures. He has denied knowledge aboutthe visit of Late Ashok Bhatt, the then Health Minister to thePolice Control Room either on 28-02-2002 or 01-03-2002.

Shri V.R. Patel, the then PSI has also denied the visit ofLate Ashok Bhatt, the then Health Minister to the AhmedabadCity Police Control Room either on 28-02-2002 or 01-03-2002.

Shri Parbatsinh A. Dholetar, the then PSI, Ahmedabad CityPolice Control Room, who was on duty on 28-02-2002 from 0800hrs to 1200 hrs and 2000 hrs to 2400 hrs, has denied the visit ofany Minister to the Police Control Room.

Shri Maganbhai M. Limbachia the then PI, who was onduty from 0800 hrs to 2000 hrs on 01-03-2002 in State PoliceControl Room, Police Bhavan Gandhinagar, has denied the visitof any Minister in the Control Room.

It may thus be seen that Shri K. Chakravarthi hascategorically stated that Shri I.K. Jadeja did visit his office,but did not go to the State Control Room and he was made

to sit in an empty chamber. Shri I.K. Jadeja himself hasconfirmed that he shifted to an empty chamber near DGP’schamber and that DGP did not share any information withhim. Shri K. Chakravarthi, the then DGP has confirmed thatShri Jadeja did not interfere with their work.

Shri I. K. Jadeja has taken the plea that it is anestablished practice in Gujarat State that in case of anynatural calamities or serious law & order situation theMinisters of the various departments extend their help inhandling the crisis. No material is available to rebut hisplea. Late Ashok Bhatt had admitted earlier that he might havevisited Ahmedabad City Police Control Room on 28-02-2002 fora few minutes, but the call detail records of his’ official mobilephone show his location at Shahibaug Kedar Tower between16:16:37 and 17:47:22 on 28-02-2002, when he attended CM’spress conference. This was conclusively proved that he did notvisit the Police Control Room on 28-02-2002. Moreover, theofficials of Ahmedabad City Police Control Room have deniedthat Late Ashok Bhatt ever visited the said Control Room eitheron 28-02-2002 or 01-03-2002. In view of the aforesaid position,it is established that Shri I.K, Jadeja did visit DGP’s office,but did not enter the State Control Room or interfered withthe working of the police and the DGP also did not shareany information with him. Further, it could not be establishedthat Late Ashok Bhatt visited Ahmedabad City PoliceControl Room either on 28-02-2002 or 01-03-2002. As perhis own admission, he might have visited the Control Roomfor few minutes on 28-02-2002 and/or 01-03-2002.Therefore, the allegation that the two Ministers werepositioned in the State Control Room and Ahmedabad CityPolice Control Room by the Chief Minister, is not fullyestablished Significantly, Shri I.K. Jadeja remained at State Policeheadquarters for 2/3 hrs as per his own admission but did notinterfere in the police functioning. Late Ashok Bhatt’s presencein the City Police headquarters on the relevant day, if any, wasvery negligible and it can not be termed of any material value. Inthe absence of documentary/oral evidence of any directionsby those two Ministers to police officials, it can not be said

Aat this stage that they conspired in the perpetration of riotsor took any action for controlling the riots……”

(emphasis supplied)

Again, while dealing with the allegations in the complaint againstthe then Chief Minister in this regard, the final report has noted thus[141]:

Presence of two Ministers at police control room:

It has been alleged that the CM took decision to allowCShri Ashok Bhatt, the then Health Minister and Shri I. K. Jadeja,the then Minister of Urban Development and Urban Housing tosit in Ahmedabad City police Control Room and State ControlRoom respectively. Shri K. Chakravarthi, the then DGP, has statedduring further investigation that Shri Ashok Narayan, ACS (Home)Dinformed him that it was decided by ‘the Govt. that Shri I.K.Jadeja, the then Minister would be in his office to secure someinformation about the law & order situation in the State, as theState Control Room is situated in DGP’s office Shri Ashok Narayanhad further informed him that Late Ashok Bhatt, another Minister,would sit in Ahmedabad City Police Control Room. ShriEChakravarthi has further stated that he had his own reservationsin this matter and therefore, he advised the ACS (Home) that itwould be better, if these Ministers got the information from theControl Room in the Home Department. However, Shri AshokNarayan informed him that no such facility was available withFhim in the Home Department and, therefore, the two Ministerswould come to the respective Control Rooms.

According to Shri Chakravarthi, Shri I. K. Jadeja, the thenMinister came to his office in the forenoon of 28-02-2002 and satin his chamber for about 15-20 minutes. Shri Chakravarthi couldnot attend to him, as he was extremely busy with the telephonecalls being received by him from all over the State. As per hisrecollection, he had asked someone to shift the Minister to anempty chamber in his office and this was done. He has also stated

141 pages 339-341 of original copy of the final report forming part of ConvenienceHCompilation of respondent No. 2

that he was not aware as to what Shri Jadeja did while he was inthe DGP’s office as he was extremely busy with his work on thatday as rioting was taking place at many locations. Later, ShriChakravarthi came to know that Shri Jadeja had left his office.Shri Chakravarthi has categorically stated that his enquiries withthe staff of the State Control Room had revealed that Shri Jadejadid not interfere with the functioning of the Control Room in anymanner.

Shri P. C. Pande, the then CP, Ahmedabad City, has statedthat it was incorrect to say that Shri Ashok Bhatt, the then Health,Minister remained stationed at Shahibaug control Room on28-02-2002, to guide the police force in controlling the law &order situation. He specifically asserted that Shri Bhatt did notvisit CP’s office Control, Room on 28.02.2002. He has furtherstated that Shri George Fernandes, the then Union DefenceMinister arrived at Ahmedabad on 28-02-2002 night. ShriFernandes reached CP’s office on 01-03-2002 around 1000 or1030 hrs. and asked Shri Pande about the deployment of Army, towhich the latter said that he would check up the same from theControl Room. Both of them went to the Control Room downstairs.According to Shri Pande, Shri Ashok Bhatt who had been waitingfor Shri Fernandes in the Circuit House, also came to CP’s officeto meet Shri Fernandes and entered the Control Room. Shri Pandehas also stated that Shri Fernandes and Shri Ashok Bhatt remainedin the Control Room for about ten minutes and then left CP’soffice. According to Shri Pande during this to the Control Room,some of the press and media persons were also present, and assuch it was somehow made to appear that Shri Ashok Bhatt hadcome to monitor the control Room. Finally, Shri Pande has statedthat Shri Ashok Bhatt was never deputed to Shahibaug Policecontrol Room to assist the Police.

According to Shri Ashok Narayan, he does not recall anyinstructions given by Chief Minister, which were conveyed byhim either to the DGP or Ahmedabad City to the effect that ShriAshok Bhatt and Shri I. K. Jadeja would sit in the AhmedabadCity police Control Room, Shahibaug and state Control Room,Gandhinagar respectively and assist/help the police.

Shri I. K. Jadeja, the then Urban Development Ministerhas stated that it was an established norm in Gujarat State that incase of any natural calamities or serious law & order situation,the Ministers of various departments extend their help in handlingthe crisis. According to his recollection on 28-02-2002, he hadvolunteered himself, if tie could be of any help in the prevalentsituation, to which Shri Gordhan Zadafia, the then MoS (Home)had told him to remain present in the Police Bhavan and to seethat in case any information was received in the State ControlRoom about any rioting incident and any information was receivedseeking extra police force, then the same should be passed on tothe Home Department. Consequent to these instructions he wentto DGP’s office around 1100 hrs. and stayed there for 2-3 hours.He has gated to have interacted with the DGP and informed himthat if and when his help was required he could ask him. He hasdenied to have entered the State Police Control Room and hasstate that there was no question of any interference. However,Shri Gordhan Zadafia, the then MoS (Home) has denied to haveany given any suggestion to Shri I.K. Jadeja. Shri Jadeja has furtherstated to have visited the DGP’s office on the next one or twodays also, but stayed there for few minutes only. He has alsostated that the DGP had not shared any information with him andtherefore, he left Police Bhavan in few minutes on both theseoccasions.

Late Ashok Bhatt had earlier stated that he might havevisited Ahmedabad City Control Room for about 5-10 minutes on28-02-2002. However, he has denied to have interfered with thepolice work, as being, senior minister, he had to maintain hisdignity and status. Again on 01-03-2002, he admitted to have visitedthe Shahibaug Control Room for about 10 minutes to meet ShriGeorge Fernandes, who bad gone to CP’s office, The call detailrecords of mobile phone no [REDACTED] of Late Ashok Bhattshow that he returned from Godhra to Ahmedabad on 28-02-2002,at about 05:16:51 hrs. Thereafter, the call details do not show hislocation till 15:50:43 hrs. 0n 28-02-2002, when the location wastraced to Koba Circle, Gandhinagar. During this period, it ispresumed that he was at Gandhinagar. His location on28-02-2002 at 16:16:37 hrs. 17:47:22 hrs. was show as ShahibaugKedar Tower, Ahmedabad City, which would conclusively prove

that during this period he attended the CM’s press conference, atCircuit-House Annexe, Shahibaug, Ahmedabad City. Thereafter,again the location was seen at 17:59:22 hrs. at Koba Circle,Gandhinagar, which shows that he was returning to Gandhinagar.These call details would go to show that he did not visit ShahibaugPolice Control Room on 28-02-2002.

Shri Sanjiv Bhatt, the then DCI (Security) has stated thathe had attended meeting at the CM’s residence on 28-02-2002morning along with the DGP and ADGP (Int.). After the meeting,he returned to his chamber on the second floor of Police Bhavanat about 1100 hrs. and shortly thereafter went to meet the DGPon the first floor of the same building. According to Shri Bhatt,when he entered DGP’s chamber he found that as instructed afterthe conclusion of CM’s meeting, two Cabinet Ministers of Gujarat,namely, Shri Ashok Bhatt and Shri I. K. Jadeja had already arrivedand were sitting on sofa-set in DGP’s chamber. He furtherstated that Shri G.C. Raiger, the then Addl. DG (Int.) andShri Maniram, the then ADG (Law & order). were also presentthere. Shri Sanjiv Bhatt briefed DGP and after taking tea, hereturned to his chamber Shortly thereafter Shri Sanjiv Bhatthappened to go to State Control Room on first floor to collectsome documents and saw Shri I. K. Jadeja and his supportingstaff sitting in the chamber of Dy. SP, Control Room. Finding thisa little odd, Shri Sanjiv Bhatt went to DGP and informed him thatit would be improper to permit outsiders in the State Control Roomand asked him whether the Minister and his supporting staff couldbe shifted from the State Control Room. DGP agreed with hisdecision and thereafter, Shri Sanjiv Bhatt again went to ControlRoom and requested Shri I.K. Jadeja to accompany him as hispresence in the control Room would hamper the smooth functioningof the state Control Room during such critical period, whereuponthe latter got up and followed him. According to Shri Sanjiv Bhatt,he took Shri Jadeja, Minister to the chamber of Shri P.C. Thakurthe then IGP, which was vacant at that time and requested him tomake himself comfortable and contact them for any assistance/requirement. Shri Chakravarthi was informed about it. Shri SanjivBhatt has also stated that subsequently he learnt that Shri Jadejaleft the Police Bhavan sometime in the afternoon, after having

lunch Shri Sanjiv Bhatt was not aware about the presence of ShriJadeja in the Police Bhavan on the subsequent days.

During further investigation, Shri Nissar Mohammad Malik,the then PSI, who was on duty at the Police Control Room,Ahmedabad City from 28.02.2002 at 0800 hrs. to 02.03.2002 at0800 hrs. has stated that Shri George Fernandes the then UnionDefence Minister and Shri Haren Pathak, the then MoS forDefence had come to Police Control Room Ahmedabad City at1005 hrs. on 01.03.2002, and left at 1025 hrs. He has confirmedthe wireless message in this regard to be under his signatures. Hehas denied knowledge about the visit of Late Ashok Bhatt, thethen Health Minister to the Police Control Room either on28.02.2002 or 01.03.2902. Shri V.R. Patel, the then PSI on duty inthe Police Control Room has also denied the visit of Late AshokBhatt, the then Health Minister to the Ahmedabad City. PoliceControl Room either on 28.02.2002 or 01.03.2002. Shri ParbatsinhA. Dholetar, the then PSI Ahmedabad City Police Control Room,who was on duty on 28.02.2002 from hrs. to 1200 hrs. and 2000hrs. to 2400 hrs. has denied the visit of any Minister to the PoliceControl Room.

Shri Maganbhai M. Limbachia, the then Pl, who was onduty from 0800 hrs. to 2000 hrs. on 01-03-2002 in State PoliceControl Room, Police Bhavan Gandhinagar, has denied the visitof any Minister in the Control Room.

In view of the aforesaid position, is established thatShri I. K. Jadeja did visit DGP’s office, but did not go to theState Control Room and he was made to sit in vacantchamber. Shri I. K. Jadeja himself has confirmed that hewas shifted to vacant chamber near DGP’S chamber and,that DGP did not Share any information with him Shri. K.Chakravarthi, the then DGP has confirmed that Shri Jadejadid not interfere with their work.

Shri I.K. Jadeja has taken the plea that it is anestablished practice in Gujarat State that in case of anynatural calamities or serious law order situation, theMinisters of the various departments extend their help inhandling the crisis. Late Ashok Bhatt had admitted earlier

that he might have visited Ahmedabad City Police Controlroom on 28.02.2002 for few minutes, but the call detailrecords of his official mobile phone show his location atShahibaug Kedar Tower between 16:16:37 and 17:47:22on 28.02.2002, when he attended CM’s press conference,which would conclusively prove that he did not visit thePolice Control Room on 28.02.2002. Moreover, the officialsof Ahmedabad City Police Control Room have denied thatLate Ashok Bhatt ever visited the said Control Room eitheron 28.02.2002 or 01.03.2002. It is, therefore, establishedthat Shri I.K. Jadeja did visit DGP’s office, but did not enterthe State Control Room or interfere with the working ofthe police and the DGP also did not share any informationwith him. Further, it could not be established that late AshokBhatt visited Ahmedabad City Police Control Room eitheron 28.02.2002 or 01.03.2002. As per his own admission, hemight have visited the control Room for few minutes on28.02.2002 and/or 01.03.2002. Significantly, Shri I.K. Jadejaremained at State Police headquarters for 213 hours as perhis own admission but did not interfere in the policefunctioning. Late Ashok Bhatt’s presence in the City Policeheadquarters on the relevant day, if any, was very negligibleand cannot be termed of any material value.

Shri Narendra Modi has totally denied that such adecision was taken by him. He has denied any personalknowledge about the visit of these two Ministers to therespective Control Rooms. It may thus be seen that boththe Ministers did visit the respective Control Rooms, butthere is no evidence to prove that they interfered with thelaw & order situation. Nor is there any evidence to indicatethat they visited the two control rooms at the direct instanceof Chief Minister. Since there is nothing to prove that theseMinisters interfered or gave any direction in maintenanceof law and order, no offence is made out. Further, in theabsence of documentary/oral evidence of any directions bythose two Ministers to police officials, it can not be said atthis stage that they conspired in the perpetration of riotsor took any action for controlling the riots……”

(emphasis supplied)

ABCDE

196SUPREME COURT REPORTS

A59. The learned Amicus Curiae had recorded observations inregard to this allegation [No. (v)], as follows: -

“BCDEFGH

These observations have been dealt with by the SIT at pages434-439[142], being part of Annexure-1 to this judgment. The analysis doneby the SIT after further investigation in respect of allegation underconsideration commended to the Magistrate, as well as, the High Court.We find no reason to deviate from the said opinion or the view taken inthat regard.

60. It was then urged that the phone call records produced by Mr.Rahul Sharma before the SIT on 2.7.2009 being CD containing towerdetails of Ahmedabad and Godhra, the efficacy thereof has not beenreckoned in proper perspective. It would reveal the nexus between theBJP leaders and police officers during riots. This aspect has not beeninvestigated by the SIT. The allegation No. (xxiii) culled out by the SITin this regard has been analyzed at pages 310-312[143] and again inreference to the observations made by the learned Amicus Curiae, atpage 456[144]. The SIT, after investigation, eventually opined that the CDscollected by Mr. Rahul Sharma from M/s. Cellforce were copied by himon his personal computer kept at home and operated multiple times; andwas unable to produce the original received from the original source(cell company). Further, when the SIT wanted to verify the mobile phonesof suspected/accused persons, the cell companies informed that the datawas not retained/available due to efflux of time. The SIT analyzed allthe aspects in respect of this allegation as follows[145]: -

ALLEGATION No. XXIII:

The CD regarding telephone calls by BJP leaders and policeofficers during riots was not probed into by the InvestigatingOfficers of the Naroda-Patiya and Gulberg Society cases.The CD was produced by Rahul Sharma, SP, CBI beforethe Nanavati Commission.

142 pages 434-439 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

143 pages 310-312 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

144 page 456 of original copy of the final report forming part of Convenience Compilationof respondent No. 2

145 pages 310-312 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

Enquiries revealed that Shri Rahul Sharma was posted asDCP, Control Room, Ahmedabad City on 08.04.2002. On07.05.2002, Shri Rahul Sharma had been instructed by the thenCommissioner of Police, Ahmedabad City, Shri P.C. Pande to reportto the Crime Branch, Ahmedabad City and assist the thenAdditional CP, Crime Branch, Shri A.K. Surolia in the investigationof serious riot-related offences. Shri Rahul Sharma was alsoinformed by Shri P.C. Pande that there would be no formal writtenorder in this regard. Accordingly, Shri Sharma reported to ShriSurolia on the same afternoon. As matter of prudence, he decidedto collect scientific evidence in support of the investigation thatwas undergoing. Shri Rahul Sharma has stated that he hadinformation about the use of mobile phones in big way in thealleged riots throughout the State including Ahmedabad City.Accordingly, he drafted à letter calling for data from two mobilephone service providers provider’s ‘Cellforce’ (now Vodafone)and ‘AT&T’ (now Idea). The letters were issued under thesignature of the then ACP, Crime Branch, Shri.S.S. Chudasama,who was also investigating the two serious cases of massacres atNaroda Patiya and Gulberg Society. According to Shri RahulSharma the information asked for, was the telephone directory ofthe two mobile phone companies, calling time called/calling number,location of the mobile phone when they were calling/receiving thecalls, etc, for the period from 25.02.2002 to 04.03.2002 in respectof all mobile phones operating from Ahmedabad city area. ShriRahul Sharma has further stated that the idea behind the collectionof this data was, amongst others, to establish the location of thealleged perpetrators of crime and their accomplices at the time ofcommission of the offence. Further, it was also required to provethe contact established between the different accused persons asalso with ‘erring’ policemen, bureaucrats and politicians.

In response to the letter sent by Shri Chudasama, data wassent in the correct format by ‘AT&T’ within week on CDR.Shri Rahul Sharma has further stated that he had personally goneto collect the said information from AT&T from their office inSuman Towers in Gandhinagar. The data provided by AT&T wasin the “TEXT” format and had all the relevant information thathad been asked for. Shri Rahul Sharma copied out the dataon his computer kept at his home and the CD was returned

to Shri Chudasma. This copying was required to be done, ifthe data from the two mobile phone companies were to beanalysed together. Shri Rahul Sharma has further stated thatthe data from the ‘Celforce’ was sent quite late and by that timeprobably Shri A. K. Surolia had been sent on deputation to BSFand Shri P.P. Pandey taken over as the Joint CP, Crime Branch.As per the recollection of Shri Rahul Sharma, the informationfrom the AT&T had come, while Shri Surolia was in-chargeof the Crime Branch, but the information from ‘Celforce’had not come during Shri Surolia’s tenure According to ShriRahul Sharma, the information from the ‘Celforce’ cameduring Shri Pandey’s tenure as the Joint CP, Crime Branch,Ahmedabad City Police, but the data was sent as an MSAccess database. Since, Shri Rahul Sharma had noknowledge of MS Access; he took the assistance of PSIShri K.J. Chandana, who was in the computer section ofAhmedabad Police Commissionerate. Shri Rahul Sharmahas further stated that Shri Chandana used to open the filesbefore him in the computer kept in his office. Initially, thedata sent was not as had been requested for and the correctdata could be obtained only after several attempts. On allthese occasions, it was Shri Chandana who usually went to theoffice of the ‘Celforce’ to get the correct data.

As per Rahul Sharma, the final CDR containing the datawas not received through Shri Chandana, but was forwarded tohim by Shri P.P. Pandey through DO Letter written in Gujarati.In the DO letter, he had mentioned that the CDs had been preparedunder his (Rahul Sharma’s) instructions and that he alone shouldanalyse the data. Shri Rahul Sharma has further stated that‘Celforce’ had also furnished data in respect of mobile phonesoperating from Godhra though the same had not been called for.According to Shri Rahul Sharma, after few days of the receiptof this letter, he was transferred out and posted as theCommandant, SRPF, Group XI, Vav, District Surat. Shri RahulSharma does not remember, whether the CDs sent by‘Celforce’ were two in number or one in number, but giventhe volume of data received from Celforce, he believes thatthere should have been two CDs. Shri Rahul Sharma hasfurther stated that he had no knowledge of MS Access at

that particular point of time, due to which he could notanalyse or interpret the contents of the CDs. However, hehas admitted to have copied the contents of the CD(s) sentby ‘Celforce’ onto the hard disk of his personal computerkept at home.

Shri Rahul Sharma has further stated that after he receivedhis transfer orders in the first week of July, 2002, he instructed,Shri Chandana, PSI to deliver the original CD(S) personally toShri P.P. Pandey. As per Shri Rahul. Sharma, Shri Chandana, PSIvisited the Jt. CP’s office couple of times, but did not find ShriPandey and, therefore, he came back with the CD(s). During thisperiod the CD(s) remained in the possession of Shri Chandana.Shri Rahul Sharma has also stated that on probably the secondlast day of his tenure as the DCP, Control Room, he had called aRider from Control Room, took the CD(s) from Shri Chandanaand directed the ‘Rider’ to hand over the CD(s) to Shri P.P.Pandey Further, according to Shri Rahul Sharma, the ‘Rider’handed over the CD(s) to Shri Pandey and reported thisfact to him. Shri Rahul Sharma is not in position to identifythe ‘Rider’ after so many years. He has also stated that atthat particular time, his PA was on leave on account of hisson’s marriage and, therefore, he could not the CD(s)through formal letter.Shri Rahul Sharma has reiterated that he neveranalysed the information contained in the CDs while postedas DCP, control Room and learnt basic MS Access only in2004 after he joined the CBI on deputation. He has alsostated that it was practice in Gujarat Police to keep copy ofCase Diaries and other important documents of cases that hadbeen investigated/Supervised by an officer. Consistent with thispractice, he wanted to keep copy of the CD(s) data that hadbeen copied onto his home computer’s hard disk. He also wantedto have the data on one CD for compactness. He had, therefore,consulted Shri Chandana is this regard and who in turn had advisedhim ‘zip’ the files, so that they would be compressed. He didaccordingly and data from the CDs sent by ‘AT&T’ and‘Celforce’ was copied on single CD, which he retained. Heburnt the information on the CD Writer installed onto hiscomputer himself.

Shri Rahul Sharma has also stated that he submitted copiesof the same CD(s) containing the zipped data to the Nanavati-Shah Commission of Inquiry (two copies) on 30-10-2004, at thetime of his deposition/cross examination and to the BanerjeeCommittee (one copy) on 22-11-2004 at the time of his examination.The original CD first prepared by him was handed over to theSIT constituted by the Hon’ble Supreme Court of India.Immediately after these CD(s) were handed over to Nanavati-Shah Commission of inquiry and also to the Banerjee Committee,it was widely reported in the print as well as electronic media thatShri Rahul Sharma has produced copy of the CD(s) before thecommission as well as Committee.

Shri Tarun Barot, the then Police Inspector, Crime BranchAhmedabad City and now ACP, Special Operation Group,Ahmedabad has stated that he was entrusted with the investigationof Naroda P.S. cr no. I98/02 relating to the death of 11 Muslimskilled in 2002 riots and that he had investigated this case from19-05-2002 to 30-05-2002 and subsequently with effect from30-11-2002 to 10-04-2008. Shri Barot has further stated that duringthe course of investigation, he had made an attempt to collect thecall detail records of mobile phones of suspected/accused persons,but the Cell companies informed that the data was not available.However, he did not approach Shri Rahul Sharma to get the calldetails as he did not know that the latter was in the possession ofthe call details of all the numbers operating from Ahmedabad Cityduring the riots period and no one had told him about it. Accordingto Shri Barot, he did not know whether Shri Rahul Sharma, SPhad handed over copy of the CDs to Nanavati-Shah Commissionof Inquiry or Banerjee Committee appointed by the Railways toenquire into the Godhra incident. Shri Barot has also stated that anews item had appeared in an English daily regarding the mobilephone details of Maya Kodnani and Jaydeep Patel and on thebasis of the said news item, both of them were summoned andinterrogated about their location on 28-02-2002 and thereafter.Both Mayaben Kodnani and Jaydeep Patel informed that theywere present at Sola Civil Hospital. Shri Mayaben Kodnaniconfirmed that her mobile phone remained in her possession,whereas Jaydeep Patel claimed that his mobile was left in his car,which was taken away by his driver. Shri Barot has also stated

that efforts were made to get their call details from the mobileservice providers, but the same were not provided and as suchthe call details could not be obtained, analysed and cross checked.The plea put forward by Shri Barot is not convincinginasmuch as the news about the production of the CDscontaining call detail records of mobile phones atAhmedabad City by Shri Rahul Sharma before theCommission had appeared in almost all the newspapers andtherefore it is difficult to believe that Shri Barot did notcome to know about it.

Shri GL. Singhal, SP, ATS, who remained the IO of GulbergSociety case and Naroda Patiya case, has stated that he did notinvestigate into the call details records of the mobile phones aswell as landline details of the accused persons or any other personconnected with these cases. He has admitted that he came toknow about the production of the CDs containing the call detailsof the various calls made/received from the mobile phonesAhmedabad City by Shri Rahul Sharma before the Nanavati-ShahCommission of Inquiry and Banerjee Committee, but did notapproach him to get the copies of CDs containing the CDRs ofmobile phones. He has further admitted that he did not approachthe cell phone service providers to get the call detail records ofthe cell phones operating from Ahmedabad City from 27-02-2002onwards. He has stated to have interrogated Dr. MayabenKodnani, MLA and Jaydeep Patel, VHP activist in Naroda Patiyacase about their locations on 28-02-2002, but they had deniedtheir presence on the spot at the time of incident. He has alsostated that he could not confront them with their call details, asthe same were not available with him.

This appears to be an intentional lapse on the part ofShri Tarn Barot, the then PI and now ACP, SOG, Ahmedabad andShri G.L. Singhal, the then ACP, Crime Branch and now SP, ATS,Ahmedabad and the same deserves to be dealt with major penaltydepartmental proceedings against them. However, no criminaloffence is made out against them……”

(emphasis supplied)

In other words, the SIT due to lapse of time, was not in positionHto verify the authenticity of the CDs regarding telephone calls produced

by Mr. Rahul Sharma and in any case, the call history by itself would nothave been sufficient to suspect commission of any offence, much lessof hatching larger criminal conspiracy, which was required to beinvestigated by the SIT. The opinion formed by the SIT on the basis ofavailable materials collected during investigation commended to theMagistrate, as well as, the High Court. That view needs no departure.

61. In other words, there is no merit in the argument of the appellantthat the SIT had failed to collect the call records of the accused persons,not analyzed the available call records from CD supplied by Mr. RahulSharma and failed to seize the phones of persons involved. In that, theevents had unfolded in the year 2002 and the SIT was constituted only inthe year 2008 by this Court to look into and enquire into the complaint ofappellant, dated 8.6.2006. During the contemporary period (year 2002),two mobile operators were providing services in the Gujarat State, namely,M/s. AT&T and M/s. Cellforce, who had the protocol of maintaining theelectronic call records for one year only[146]. This fact has been noted inthe statement of Mr. Viraf Fanibanda – Head Legal Advisor, Idea Cellularand of Mr. Dhiren Jayantilal Laria – Legal department, Vodafone,recorded by SIT on 28.11.2008. These statements, though crucial, havenot been adverted to by the appellant. Resultantly, it was not possible forthe SIT to retrieve the call records from these service providers after itsappointment in the year 2008. It is, therefore, not case of failure of theSIT to collect the call detail records of various persons referred to in thedetails discernible from the record submitted by Mr. Rahul Sharma.

62. Insofar as the CD record submitted by Mr. Rahul Sharma, asaforesaid, he had failed to handover the case property to the investigatingofficer (of Naroda police station), dealing with the concerned case norgot it entered in the register of case property (Muddamal) or informedthe Court of jurisdiction about seizure of such case property. He hadinstead produced the CD on 31.5.2008, which came to be seized by theinvestigating officer and taken as evidence. These two CDs were collectedby the investigating officer from the records of Nanavati-ShahCommission of Enquiry. Mr. Rahul Sharma had submitted the same beforethe Commission. Additionally, one CD containing the same information146 ‘License Agreement for Provision of Unified Access Services’ provide as under:“The LICENSEE shall maintain all commercial records with regard to thecommunications exchanged on the network. Such records shall be archived forat least one year for scrutiny by the Licensor for security reasons and may bedestroyed thereafter unless directed otherwise by the licensor.”

Awas submitted by Mr. Amresh Bhai N. Patel, Jansangharsh Manch,which was obtained by him from the Commission of Enquiry. That wasalso produced before the investigating officer. In absence of the originalCDs which were never produced by Mr. Rahul Sharma, it was notpossible for the SIT to obtain the certificate of authenticity under Section65B of the Indian Evidence Act, 1872 and at the same time, it had beenBnoticed that the CDs were copied by Mr. Rahul Sharma in his computerand format changed, by changing it in Zipped format. The SIT hasanalyzed all these aspects and opined that MD5 Hash value of the filesin all the three CDs was found same. Further, the files containing calldetail records or fragments of the files could not be found on the computerCstorage media. Moreover, due to lapse of time, no fruitful purpose wouldhave been served in seizing the mobile phone of the concerned userafter seven years to undertake roving enquiry. All these aspects havebeen duly considered by the SIT while dealing with allegation No. (xxiii)as reproduced hitherto, in paragraph No. 60. The opinion so recorded by

the SIT commended to the Magistrate, as well as, the High Court. WeDfind no reason to deviate therefrom.

63. Needless to underscore that every information coming to theinvestigating agency must be regarded as relevant. However, theinvestigating agency is expected to make enquiries regarding theauthenticity of such information and after doing so must collectEcorroborative evidence in support thereof. In absence of corroborativeevidence, it would be merely case of suspicion and not pass the musterof grave suspicion, which is the pre-requisite for sending the suspect fortrial. This is the mandate in Section 173(2)(i)(d) of the Code, whichpostulates that the investigating officer in his report must indicate whetherFany offence appears to have been committed and if so, by whom. Theopinion of the investigating officer formed on the basis of materialscollected during the investigation/enquiry must be given due weightage.That would only be the threshold, to facilitate the concerned Court totake cognizance of the crime and then frame charge if it is of the opinionthat there is ground for presuming that the accused has committed anGoffence triable under Chapter XIX of the Code.

64. The appellant had also alleged about police inaction whichfacilitated riots as part of conspiracy giving specific instances in thatregard. The SIT has considered this allegation being allegation No.

(xxv)[147], and upon analyzing the materials gathered during theinvestigation, opined that the circumstances highlighted by the appellantwere not sufficient link to infer that the named persons had hatchedlarger conspiracy to cause mass violence across the State targeting theminority community. On closer scrutiny of the analysis in this regard, theopinion of the SIT is plausible opinion. For, the instances adverted toare essentially matters concerning the acts of commission and omissionat the ground level and not indicative of any link to sustain the allegationsof larger criminal conspiracy. As noted earlier, the erring officials identifiedfor their acts of commission and omission at the ground/local level havebeen proceeded with departmentally. Every act of commission andomission would not result in hatching criminal conspiracy unless the actshave been done deliberately and there is meeting of minds of allconcerned.65. Similarly, the allegation that victims of riots and police firingswas predominantly of the Muslim community, has been dealt with asallegation No. (xxx)[148], while noting that the incident referred to unfoldedon 28.2.2002, wherein 17 persons were killed in police firing inAhmedabad City, which included 11 Hindus and 6 belonging to minoritycommunity. Further, police firing was required because of the evolvingsituation and out of compulsion to control the situation. This is observedat page 329 as follows: -

“….. During enquiries, Shri P.C. Pande, formerly CP, AhmedabadCity has stated that during the riots, it is difficult for the police toidentify as to whether any individual belongs to particularcommunity. He has further stated that on 28-02-2002, 17 personswere killed in police firing in Ahmedabad City, which included 11Hindus and 6 Muslims, which would go to show that there was nodiscrimination on the part of police. He has also stated that in thesucceeding days, the retaliation started from the Muslim side alsoand therefore, wherever force was used by the police casualtiesresulted on both the sides. According to Shri Pande, it is incorrectto say that the administration and police were moving incollaboration with the rioters and were targeting the persons from

147 pages 320-325 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

148 page 329 of original copy of the final report forming part of Convenience Compilationof respondent No. 2

[2022] 6 S.C.R.

Athe minority community with an intention to achieve the allegedobjective of CM. In view of the aforesaid position, the allegationis not established……”

66. Even the allegation regarding nepotism practiced in postings,transfers, promotions etc. facilitating the ongoing subversion of theBcriminal justice system has been rightly discarded as vague and withoutany specific instances. That allegation is noted in paragraph 85 of thecomplaint dated 8.6.2006.

67. Be it noted that the SIT was constituted by this Court toinvestigate into the allegations providing specific inputs/informationCindicative of commission of offence of larger criminal conspiracy andinvolvement of concerned person in executing such crime. The SIT wasnot there to generally enquire into administrative matters of the State,such as posting, transfers and promotions unless specific input is setforth or was to be brought to the notice of the SIT.

68. Suffice it to note that absent clear and direct material indicativeDof involvement of named person(s) in hatching criminal conspiracy tocause mass violence across the State targeting minority community duringthe relevant period, the attempt of the appellant, if we may say so, isbordering on sewing of insignificant unconnected circumstances andevents regarding the failures and in some cases, laxity in administration,Ewhich is being projected as an act of concerted effort of all the Stateofficials upto the highest level without there being any tittle of materialto show that there was meeting of minds of all these persons at somelevel.

69. The appellant had gone to the extent of attributing motives inFrelation to transfer of officers from field executive in the thick of riotsdespite the objections of concerned DGP. In place of such able officers,posting was done of officials who were willing to subvert the system forpolitical and electoral benefits. This allegation has been duly enquiredinto by the SIT being allegation No. (vi) and dealt with in the followingGwords[149]: -

149 pages 269-271 of original copy of the final report forming part of ConvenienceHCompilation of respondent No. 2

ALLEGATION NO. VI:

Officers from field executive posts were transferred (byCM), in the thick of riots in 2002, despite DGP’s objectionso as to facilitate placement of those who were willing tosubvert the system for political and electoral benefits asnarrated in Para 67 of the complaint dated 08.06.2006,wherein instances of punishment, ill-treatment etc. arelisted in respect of the following officers: (1) Shri RahulSharma, IPS, (2) Shri Vivek Shrivastava, IPS, (3) ShriHimanshu Bhatt, IPS, (4) Shri M.D. Antani, IPS, (4) ShriR.B. Sreekumar, IPS and (6) Shri Satishchandra Verma, IPS.

This allegation relates to instances relating to punishment,ill-treatment etc. to the various police officers, who weretransferred from the field executive posts in the thick of riots in2002 so as to facilitate the placement of those, who were willingto subvert the system for political and electoral benefits.

Shri Rahul Sharma, who had been posted as SP, Bhavnagaron 16-02-2002, has stated that on 27-02-2002, he was on leaveand after having come to know about the Godhra train carnage,rushed to Bhavnagar and reached there in the evening of27-02-2002. He has further stated that on 01-03-2002, permissionwas granted to Sadhu-Samaj by District Administration to takeout procession and after the rally started at 1710 hrs, the riotbroke out in Bhavnagar City and the mob had started gathering atdifferent places in Bhavnagar City. Further, one Kishor Bhatt,President of Shiv-Sena, Bhavnagar Branch was arrested by thepolice and thereafter, some reports of stone pelting, arson andrioting had come in and curfew was imposed by the DistrictCollector at his request. He has also stated that Bhavnagar policehad succeeded in controlling the communal riots by the eveningof 02-03-2002. Shri Rahul Sharma has stated that Shri GordhanZadafia spoke to him over phone on 16-03-2002 and informedhim that he had done good job in controlling the communal riots,but the ratio of deaths, as result of police firing in the riots wasnot proper, i.e., more number of deaths of Hindus than Muslims.Shri Rahul Sharma has also stated that on 23-03-2002, mosquewas attacked by riotous mob following which 21 persons were

BCD

EFG

arrested and that he was pressurised by the local leaders to releasethem, to which he did not agree. As result, of he had differenceof opinion with the Collector, IGP, Junagadh Range and DGP.Shri Rahul Sharma was transferred as DCP, Control Room,Ahmedabad City and he was relieved from the charge of post ofSP, Bhavnagar from 26-03-2002. However, Shri Rahul Sharmahas stated that he would not be able to comment on thecircumstances that led to his transfer from Bhavnagar toAhmedabad City as transfer/posting is the prerogative of the Govt.Shri Vivek Srivastava has stated that he remained postedas SP, Kutch during January, 2001 to March, 2002. He has furtherstated that as mark of protest against the Godhra carnage, VHPhad given call for Gujarat Bandh and had taken out rally inBhuj town on 28-02-2002, for which adequate arrangements hadbeen made, as result of which there was no untoward incidentin the entire District and no killings were reported from anywherein the District. According to Shri Vivek Srivastava, few daysafter the Godhra incident, Muslim family had been assaultedwith sharp edged weapons at Dargah out side Nakhatrana townby some unknown miscreants, causing injury to two persons.Further, according to Shri Vivek Srivastava, case u/s 307 IPCwas registered and one Home-Guard Commandant with BJPleanings of Kutch District had been arrested and charge sheetedon completion of investigation. Shri Vivek Srivastava has alsostated that he got few phone calls from the office of HomeMinister and Chief Minister asking him about the details of thecase and also as to whether there was adequate evidence againstall the accused to which he confirmed that sufficient evidencewas available against all the accused persons for effecting theirarrest. Shri Vivek Srivastava was transferred in the last week ofMarch, 2002 and posted as Deputy Commissioner, Prohibition &Excise, Ahmedabad Zone. However, Shri Vivek Srivastava wasunwilling to comment upon the reasons, as according to him,transfers were the prerogative of the Govt.

Shri M.D. Antani, who remained posted as SP, Bharuchduring 10-08-2000 to 26-03-2002, has stated that keeping in viewthat Baruch was communally sensitive District with 27% Muslimpopulation, adequate police arrangements were made pursuant to

the Godhra carnage incident. According to Shri Antani, from28-02-2002 onwards, incidents were reported only in respect ofBharuch town, Ankleshwar and Raj-Pardi areas, whereas Palej,Amod, Kavi, Vedach, Nabipur, Hansot and Bharuch Talukas werealmost ventless. In all two Muslims had died during the riots,whereas three Muslims were killed in police firing on 19-03-2002.He was transferred on 26-03-2002, as SP, Narmada and wasrelieved on the same day. However, Shri Antani has stated thathe can not comment on the allegation of any motive for his transfer.

Shri Satish Chandra Verma was posted as DIG, BorderRange with headquarters at Kutch-Bhuj during the period2003-2005, which has three Districts including Patan. At that timeone Shri Shankar Chaudhary was the sitting MLA of BJP fromRadhanpur Assembly constituency. Shri Verma has stated that acriminal case had been registered in Radhanpur P.S. in the contextof rioting between Hindu and Muslim crowds after the Godhracarnage on 27-02-2002, in which two Muslims had reportedly dieddue to police firing. However, it was brought to his notice that thedeath of these two Muslims by police firing was not substantiatedby available evidence and instead evidence was available againstprivate individuals including Shri Shankar Chaudhary, MLA forcommitting acts, which led to the death of these persons. Shri S.C. Verma has further stated that he had issued formal order forthe arrest of Shri Shankar Chaudhary, MLA for murder and attemptto murder. Shri Verma has also stated that sometime later, he wastransferred as Principal State Reserve Police Training Centre,Chawky, Junagadh, However, Shri Verma has stated that he cannot say that this transfer was consequence of this aforesaidorder. He has also stated that he can not call the post of Principalof training institution unimportant. Shri Verma has further clarifiedthat the scrutiny of the evidence by him in the aforesaid criminalcase was not part of scrutiny of 2000 odd cases entrusted to theDGP by the Hon’ble Supreme Court of India. Shri Verma hasfurther stated that it was not true that the post of Principal, SRRTChad been upgraded from SP to DIG to post him there and that thispost had been encadred before his posting there as DIG levelpost.

Shri. R. B. Sreekumar has stated before the SIT that heremained posted as Addl. DG (Int.) during 09-04-2002 to18-09-2002 He has further stated that during this period, he hadsent reports against Sangh-Pariwar supporters, about the prejudiceof the Govt officials against the Muslims and the general subversionof the Criminal Justice System, to the Govt. and DGP. He hasfurther stated that in his first affidavit filed before Nanavati-ShahCommission of inquiry, he had pointed out that the State IB hadinformed the State Govt. about the likely repercussions of Godhraincident and measures to be initiated by the field officers, but onaccount of pressure from the ruling party and some higher officers,no steps were taken to control the emerging communal situationas detailed in Gujarat police Manual and that this paved the wayfor the violence from the Hindu mob against the Muslims. He hadalso stated in his affidavit that the imposition of curfew was delayedon 28-02-2002, till 1300 & 1400 hrs in Ahmedabad City to facilitatethe parading of dead bodies of Godhra victims. Shri R. B.Sreekumar had also submitted his second affidavit on 06-10-2004,covering the additional terms of Nanavati-Shah Commission, inwhich he had pointed out the subversion of criminal justice systemagainst the Muslims and specific suggestions to remedy thesituation, but the Govt. did not take follow up action on thesuggestions made by him in his assessment reports dated24-04-2002, 15-06-2002, 20-08-2002 & 28-08-2002. Shri R. B.Sreekumar has further stated that he had filed third affidavit on09-04-2005, presenting the data on his harassment and victimizationon account of his non compliance of intimidator briefing by StateHome Department official, who had asked him to look after thepolitical interests of the Govt. Shri R. B. Sreekumar has also statedthat after charge sheet was served upon him on 06-09-2005,questioning his revelations before the Nanavati Commission, hefiled fourth affidavit before the Nanavati Commission on27-10-2005. Shri R.B. Sreekumar has further contended that hewas superseded in promotion because of the aforesaid acts andthus victimized by the Govt. He has also stated that he had beenexonerated of all nine charges served upon him by the CentralAdministrative Tribunal, Ahmedabad on 28-09-2007 and that theState Govt., sought stay on the operation of the CAT’s orderfrom Gujarat High Court, which was rejected and that the Hon’ble

High Court had ordered for the expeditious release of regularpension to him and also grant of promotion from the date of hissupersession i.e. 23-02-2005. The State Govt. had complied withthe High Court directive and issued orders on 02-05-2008.

The statements of Shri Rahul Sharma, the then SP,Bhavnagar, Shri Vivek Srivastava, the then SP, Kutch, Shri M. D.Antani, the then SP, Bharuch and Shri S. C. Verma, the then DIG,Border Range, Kutchch-Bhuj before the SIT would go to showthat though their transfers were immediately after certain eventsin their jurisdiction, yet according to them postings/transfers beingthe prerogative of the Govt., the same can not be linked to certainevents that took place immediately before their transfers. Shri S.C. Verma has pointed out that the post of Principal of traininginstitution could not be said to be unimportant. He has furtherclarified that the scrutiny of the allegation in murder case of twoMuslims was not part of scrutiny of 2000 odd cases entrusted tothe DGP by the Hon’ble Supreme Court of India. Shri Verma hasalso clarified that the post of Principal, SRPTC had been upgradedbefore his posting there.The testimony of Shri R.B. Sreekumar is motivated inasmuchas he had started collecting data/evidence during posting as Addl.DG (Int.). Even subsequently, he clandestinely recorded hisconversation with Shri G.C. Murmu, Home Secretary and ShriArvind Pandya, Govt. Advocate before the Commission with aview to level the allegation of pressure tactics against him. Hehad also recorded his conversation with Shri Dinesh Kapadia, anunder Secretary, Budget and Co-ordination in the HomeDepartment to be utilized subsequently, as evidence against theGovt. Surprisingly, he kept all these things well guarded secrettill he was superseded in promotion in February, 2005 and made itpublic in his third affidavit filed before the Commission on09-04-2005. All these actions on the part of Shri R.B. Sreekumartherefore, appear to be motivated. In view of this, the credibilityof his oral testimony has also been considerably reduced becausethe same stands uncorroborated. On account of the aforesaidfactors, this allegation therefore, is not established……”

70. Concededly, the act of transfer/posting of officials has beenafter the unfolding of mass violence across the State. It was obviously

Aan administrative matter to address the expediencies of that situation.We fail to understand as to how this circumstance can be reckoned ashatching of criminal conspiracy resulting into mass scale violence acrossthe State aftermath Godhra incident. Such conspiracy ought to havepreceded the triggering of mass violence. Be that as it may, the SIT hasdone everything possible to look into each allegation noted in the complaintBdated 8.6.2006 and after collating relevant materials, have formed itsopinion, not only allegation-wise, but also offender-wise and witness-wise including to deal with the observations noted by the learned AmicusCuriae.

71. To the same end, it was alleged [being allegation No. (xvi)]Cthat the officers at the grassroot level were not transferred as per SIB’srecommendations till the arrival of Mr. K.P.S. Gill as Advisor to theChief Minister, as stated by Mr. R.B. Sreekumar in his second affidavitdated 6.10.2004 submitted to the Nanavati-Shah Commission. Even thisallegation has been dealt with by the SIT in the following words[150]: -

ALLEGATION No. XVI:

Officers at grass-root level were not transferred asper State Intelligence Bureau’s recommendation till theEarrival of Shri K.P.S. Gill as Advisor to CM, as indicated bySreekumar in his second affidavit dated 06.10.2004 to theNanavati Commission.

Shri R. B. Sreekumar has stated that after taking overas Addl. DG (Int.) on 09-04-2002, he had sent an analyticalFnote on the Current Communal Scenario in Ahmedabad Cityon 24-04-2002, to Shri Ashok Narayan, the then ACS(Home) with copy to Shri K. Chakravarthi, the then DGP.In this report, Shri Sreekumar has stated that repeated and strongmedia attack on Ahmedabad police had demoralising impact onthe confidence and dedication of the city police personnel. HeGhas further stated that many senior police officers at the decisiontaking level, i.e. Inspectors in charge of the City police stationshad ignored the specific instructions from the official hierarchyon account of their getting direct verbal instructions from the senior

150 pages 297-298 of original copy of the final report forming part of ConvenienceHCompilation of respondent No. 2

political leaders of the ruling party. According to Shri Sreekumar,such officers had become adept in the art of deceptive lawenforcement for the benefit of their Political masters and friends,who ensured their placement and continuance in their choicestexecutive posts at the cost of the spirit and letter of the law of theland.

In this report Shri Sreekumar had suggested amongst otherremedial measures, the replacement of the present incumbentsfrom executive posts at the cutting edge level from those citiesand districts, where police either remained inactive during the riotsor played collaborative role with the rioters. Shri Sreekumaralso suggested that for deterrent, effect, police functionaries, whohad played collaborative and participatory roles during the riotsshould be given statutory punishment.

Shri Sreekumar has further stated that on 04-05-2002, ShriK. P. S. Gill, former DGP of Punjab State, who had been deputedas an Adviser to the Chief Minister, Gujarat on Law & Ordermatter, convened meeting of senior police officers in his campat CRPF group centre, Gandhinagar. Shri K. Chakravarthi, ShriP. C. Pande, Shri R. B. Sreekumar, Shri Maniram, and Shri M. K.Tandon, attended the meeting. As instructed by Shri Gill eachofficer gave his assessment of the current situation. Both, DGPand CP, Ahmedabad city observed that the situation was normaldue to effective police, measures. Shri Sreekumar has furtherstated that Shri Maniram, who was responsible for maintainingLaw & Order in the state, totally disagreed with the assessmentgiven by DGP. And CP, Ahmedabad City. According to thestatement made by Shri Maniram before the SIT, he had informedinformed Shri K. P. S. Gill that the tension continued to prevail inAhmedabad city amongst the Hindus and Muslims and the officers,who were responsible for not preventing the riots resulting in lossof life and property in their jurisdiction should be transferredimmediately irrespective of their status and good officers postedin their place. Shri Maniram also stated to have mentioned to ShriGill that wherever effective officers had been posted, the Law &Order situation was under control like, Saurashtra and SouthGujarat. In this meeting, Shri R. B. Sreekumar had fully endorsedthe views of his Shri Maniram, Shri Sreekumar also handed over

Aa copy of his report sent vide letter dated 24-04-2002 to Shri Gilland had also prepared separate note at the instance of Shri Gill.According to Shri Sreekumar, Shri K. P. S. Gill had called him on08-05-2002, and informed that the suggestions and remedialmeasures indicated in his (Sreekumar’s) note here quite relevantand that soon most of the officers at the decision making levels inBAhmedabad City would be transferred and new team of officerspositioned.

Shri K. Chakravarthi has stated that during initialdiscussions with Shri K.P.S. Gill he along with Shri AshokNarayan were given to understand that CM wanted toCtransfer the senior officers of Ahmedabad City and wantedalternate proposal. Shri Chakravarthi had accordingly givenhis suggestion to Shri Ashok Narayan, who prepared noteand submitted the same to the Chief Minister for hisapproval. According to Shri Chakravarthi, Shri K.P.S. GillDhad asked him about his views on these transfers, to whichShri Chakravarthi informed him that he had given thesesuggestions. Shri Chakravarthi has further stated that thisnote was approved by the Chief Minister and the transferscame into force in the end of first week of May, 2002. ShriChakravarthi has also stated that the matter relating to theEshifting of jurisdictional officers was already underconsideration and it was not taken up at the instance ofeither Shri Maniram or Shri RB. Sreekumar.In view of this, the allegation of Shri Sreekumar thatthe transfers of the jurisdictional officers as suggested byFState IB on 24-04-2002, were not carried out till the arrivalof Shri K.P.S Gill, an Adviser to CM, is therefore, withoutany basis……”

(emphasis supplied)

GThis analysis has been criticized amongst others on the groundthat Mr. K.P.S. Gill has not been examined by the SIT. Non-examinationof Mr. K.P.S. Gill by the SIT can have no adverse impact on the otherwisewell-considered opinion arrived at by the SIT in the final report on thisaspect. In any case, not translating the recommendation of SIB (dated24.4.2002) into transfer order until end of first week of May, 2002, does

not provide any direct link regarding the allegation of hatching largercriminal conspiracy at the highest level for causing or precipitating theviolence across the State from February, 2002 onwards. Viewed thus,no fault can be found with the opinion of the SIT that the transfers of thejurisdictional officer, as suggested by the SIB, were not carried out tillthe arrival of Mr. K.P.S. Gill, Advisor to the Chief Minister, is of no avail.The opinion of the SIT in this regard is plausible view and had rightlycommended to the Magistrate, as well as, the High Court.

72. That takes us to the other allegation, more or less of the sametype being allegation No. (vii), namely, senior officers were awardedwith undue benefits for collaborating with the illegal plans of CM/BJPduring 2002 riots and afterwards. This has been found to be far-fetchedand unfounded allegation by the SIT, after analyzing the relevant materialson record including the statements of the concerned officials[151], dealingwith the case of each officer as named in paragraph 68 of the complaint.Even this opinion of the SIT needs no second look also for the reasonthat such an act would not be link to connect the act of hatching ofcriminal conspiracy resulting in mass violence across the State.

73. Argument was also advanced in reference to allegation No.(xv) that pro-VHP Advocates were appointed as public prosecutors inriots cases. This has been thoroughly examined by the SIT in the followingwords[152]: -

ALLEGATION No. XV:

Pro-VHP advocates were appointed as PublicProsecutors in riot cases as noted in Para 4 under thecaption ‘Present Situation’ in the complaint dated08.06.2006, wherein appointments of advocates Shri ChetanShah (as District Government Pleader), Shri V.P. Atre (asSpecial PP in the Gulberg case), Shri Raghuvir Pandya (asSpecial PP in the Best Bakery case), Shri Dilip Trivedi (asSpecial PP in the Sardarpura case), Shri Rajendra Darji (as

151 pages 271-280 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

152 pages 294-296 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

Special PP in the Dipda Darvaja case), Shri Piyush Gandhi(PP in Panchmahal District), have been questioned).

Enquiries revealed that the procedure for theappointment of Public Prosecutor in town is that thevacancy is notified by the collector & District Magistratein the local news papers. In response to the advertisementa number of eligible candidates are interviewed by Boardcomprising Principal Sessions Judge and DistrictMagistrate. Thereafter, panel of three or four advocatesselected by the Board is forwarded to the Govt. for theappointment of the Public Prosecutor. The Govt. exercisesits own discretion, select and notify one of the empanelledcandidates as public Prosecutor for period of three years.It may thus be seen though the selection procedure istransparent yet the Govt. has got the discretion to appointa particular lawyer out of the panel of 3-4 advocatesforwarded to them.Enquiries further revealed that Shri Chetan K. Shahremained Member of Vishwa Hindu Parishad during 1990 to1995. However, at present he is neither member of BJP nor anyof the Sangh Parivar organisations. It has further come to lightthat on 12-07-1986, seven or nine members of Muslim Parivarwere allegedly burnt alive in Meghaninagar area during the riotsin 1986. case in this regard was registered in Shahibaug P.S.Shri Chetan K. Shah was not FIR named accused in this case,but was arraigned as an accused during the course of investigationand charge sheet filed against him. After the committal proceedingsthis case was registered as terrorist case no. 1/87 before theHon’ble Special Court, Ahmedabad City. Shri Chetan K. Shahwas charged under TADA and other rioting offences. However,he was not arrested and instead granted anticipatory bail andsubsequently regular bail also. On his request to the BARAssociation, Shri Chetan Shah was defended by Shri H.M. Dhruvand Shri J.M. Panchal, Shri J.M. Panchal, Sr. Advocates. Aftertrial, Shri Chetan Shah was acquitted of all the charges.

Shri Chetan K. selected as Public Prosecutor, as per laiddown appointed as such on 17-06-2003 for period of three yearsBefore his appointment as PP, Shri Shah, had defended some of

the accused persons of the Gulberg Society case Some of themhad been released on bail during that period and Shri Shah, hadrepresented them. Further, as Public Prosecutor of City SessionsCourt, he had 15 Additional Public Prosecutors, who used to workin different courts as per duties allotted by Shri Chetan K. Shah.One Shri V. P. Atre, Additional Public Prosecutor had beenappointed as Special PP to conduct case no 67/2002 ofMeghaninagar P.S. on 06-10-2003. It has further come to lightthat this was special assignment given to Shri Atre by the Govt.of Gujarat directly and he was not junior or subordinate to ShriChetan K. Shah. In Gulberg Society case, none of the accusedpersons were released on bail after Shri V. P. Atre took over asSpl. PP. However, the accused persons were released on bail bythe Gujarat High court at different stages. Shri Chetan K. Shahdid not appear as Public Prosecutor in any of the riot casespending in City Sessions Court, Ahmedabad City. He could nothave appeared as Public Prosecutor in Gulberg Society case ashe had already appeared in this case from the defence side. ShriChetan K. Shah has denied that he had been appointed as Publicprosecutor because of his VHP background or being sympathizerof the ruling party or Sangh Parivar. The three year term of ShriChetan K. Shah had expired in June, 2006 and was not extended.Shri Chetan K. shah has denied knowledge that Shri V. P. Atrehad been appointed as Spl. PP after protest had been lodgedby the eyewitnesses of the Gulberg Society case regarding his(Shri Shah’s) appointment. Both, Shri Chetan K. Shah and ShriAtre have denied that the latter worked under the former.

Shri M. Dhruv, Sr. Advocate has corroborated the versionof Shri Chetan K. Shah and has confirmed to have defended ShriChetan K. Shah in TADA case jointly with Shri J.M. Panchal,Sr. Advocate, which ended in acquittal. He has further stated thathe had been appointed as Spl. PP to conduct the cases arising outof Meghaninagar P.S. R No. 67/2002 and Naroda P. S. CR No.100/2002 on 05-03-2009 and Shri Amit Patel, Advocate wasappointed to assist him in the trial. However, Shri H. M. Dhruvdid not appear in any of these cases on any of the dates as newPublic Prosecutors were appointed by the Govt. of Gujarat on therecommendations of SIT.

Enquiries further revealed that Shri Raghuvir N. Pandyahad started his practice in District & Sessions Court, Vadodara inthe year 1986 on Civil and criminal side. In the year 1997, he wasappointed as Addl. PP in District & Sessions Court. Further, duringthe period 2000-2002, he worked as incharge Public ProsecutorVadodara District. He was appointed as District Govt. Pleaderin District Sessions Court, Vadodara in 2002 and worked there till2008. He has denied any direct connection with BJP, BajrangDal, RSS or any of the Sangh Parivar organisations, but hasadmitted to have contested corporation elections from ward no.20, Majalpur as an independent candidate in the year 1995, whenhe was elected. He remained Corporator for period of six yearstill 2001. He applied for appointment as Notary in the year 2001and was appointed as Notary by the Central Govt. He has alsostated that the Best Bakery incident was serious and sensitivecase in Vadodara, as an aftermath of Godhra incident and that hehad conducted the prosecuted of this case as the Chief PublicProsecutor of District & Sessions Court in sincere and diligentmanner. According to Shri Pandya, it is incorrect to say that allmatters in the fast track Court Judge H. U. Mahida were beinghandled by Shri Gupta Addl. PP. Shri Pandya has explained thatkeeping in view the work load as well as the availability of theprosecutors he used to divide the workload between differentProsecutors including Shri Gupta, Addl. Shri Pandya is of the viewthat being the Chief Public Prosecutor of District & Sessions Court,his appointment and notification in Best Bakery Case was notnecessary. Shri Raghuvir N. Pandya ceases to be PublicProsecutor and Learned Fast Track Court Judge Shri H. U. Mahidahad already retired.

Shri Dilip R. Trivedi, Advocate from Mehsana has statedto have started his practice, as an Advocate in Mehsana Courts inthe year 1977. He was appointed as Govt. Advocate and PublicProsecutor in Mehsana in April, 2000 and remained there till theend of 2007. He is member of Rashtriya Swayam Sevak Sanghsince childhood. In 1992, he joined VHP as worker and in 1999,he become the General Secretary of VHP, Gujarat State. In 2006,he become the President of Vishwa Hindu Parishad, Gujarat State.According to Shri Trivedi, Vishwa Hindu Parishad is social Hinduorganisation with no political inclinations and had not been banned.

According to Shri Trivedi post Godhra carnage there were riots inMehsana District particularly in Srdarpura, Tal- Vijapur and DipdaDarwaja, Visnagar and the bail application of accused personsInvolved in these cases were dealt with by him and other Addl.PPs. He has further stated that the bail application of sevenaccused persons were argued by him in the Sessions Court,Mehsana and the same were rejected. All these seven accusedpersons had approached the Gujarat High Court and SubsequentlySupreme Court also, but their bail applications were rejected. Someother accused persons arrested in this case had also filed bail.Applications in the Court and were granted bail. Further, as andwhen the accused persons were arrested in Sardapura case, Tal-Vijapur, they were released on bail on various conditions. Thecomplainant had filed petitions in Gujarat High Court vide Crl.Misc. Appls. No. 3590/02, 3591/02 & 4026/02 against the bailorder, which were dismissed by the High Court. Shri Trevedi hasadded that as and when the accused persons filed their bailapplication the same were argued in an honest and impartialmanner depending upon the evidence available for and againstthe accused persons. He has also stated that considering thearguments and the evidence available against and for the accusedpersons, as per police investigation, the court had either grantedthem bail or dismissed their bail applications on merits and thatthe same was purely the discretion of the court. In these casesthe charge sheets were filed by the IO in the concerned Court ofthe competent jurisdiction, but the trail was not conducted by him.Shri Rajendra Darji, Advocate had denied any connectionwith Vishwa Hindu Parishad, Bajrang Dal or any of the connectedorganisations. He has stated that he become Addl. PP and Addl.Govt. Pleader in Mehsana District in April 2000 and remindedthere till 2004. In 2005, he appeared for the interview and wasappointed as Addl. Govt. Pleader and till 2007. In 2008, he wasagain appointed as Addl. Govt. Pleader and he continues to be theAddl. PP. He has stated that Dipada Darwaja case was chargesheeted in the first Fast Track Court of Shri P. R. Patel andsubsequently transferred to the Court of Shri S. J. Seth and againtransferred to the Court of Shri I. B. Waghela, Initially, Shri R. M.Jani was the Prosecutor in this case, who examined 11 witnesses.Thereafter, this case was conducted by Shri Nirmalbhai S. Shah,

Govt. Advocate, who examined 16 witnesses. Later on he hadfurther stated that he had got dismissed the bail application of theseven accused persons from the Court. He has also stated tohave dealt with this case in an independent and impartial manner.

Shri Piyush L. Gandhi, Advocate remained RSS activistsince 1964, worker of Akhil Bhartiya Vidharthi Parishad between1968 to 1972, District Pramukh of Janta-Yuva Morcha between1973 to 1980, Secretary of Panchmahal District VHP between1982 to 1990, Officiating Pramukh of Panchmahal District VHPbetween 1990 to 2006 and Administrator of schools associatedwith Vidya Bharti since 2006 till date. He had also been appointedas Director of Godhra City CO-operative Bank in 1996 andtreasurer of National Blind Samiti in 1994. He remained Govt.Advocate and Public Prosecutor of Panchmahal from 15-01-1996to 01-09-2009. He has stated that in the riot cases post Godhracarnage in the year 2002, Shri J. G. Pathak and Shri B. J. Trivediadvocates were appointed as Spl. PPs to conduct the trial of thesecases. However, this appointment was cancelled with effect from04-12-2003 and these cases were entrusted to him for trial.However, in some of the cases, Shri Rajendra Trivedi, Shri A. R.Dave and Shri D. P. Pathak were also appointed as Spl. PPs. ShriGandhi has also stated that he had conducted the trial of Shabana-

Suhana bang rape and murder case and that in this case, thecomplainants had filed Crl. Revision Apps. NO. 94/2004 & 142/2004 in Gujarat High Court in Gujarat High Court, in which someallegations had been levelled against him. He has further statedthat the Gujarat High Court had dismissed these allegations onthe first date of hearing on 12-10-2004. He has also stated that hehad concluded the trial of this case and many of the accusedpersons were convicted, and awarded life imprisonment. He hasalso stated that appeals had been filed against the acquittal ofsome of the other accused persons in this case in the GujaratHigh Court.

On overall examination of these allegations, itappears that government had usual practice of appointmentof government pleaders, the political affiliation of theadvocates did weigh with the Govt. for the appointment ofthe Public Prosecutors. However, no specific allegation of

showing favour by them to any of the accused personsinvolved in the riots either in grant of bail or during thetrial has come to light……”

(emphasis supplied)

We fail to understand as to how this act can be linked with theallegation of hatching of criminal conspiracy for causing or precipitatingmass violence across the State. The appellant having failed to providesufficient material to raise serious suspicion in respect of allegation ofhatching of criminal conspiracy for the intended mass violence, cannotbe heard to make that deficiency by raising allegation of the kind ofappointments of public prosecutors during the trial of the concerned cases.Be that as it may, the allegation clearly overlooks the procedure regardingappointment of public prosecutor. It begins with notification by theCollector and District Magistrate in the local newspaper and the eligiblecandidates are interviewed by Board comprising of Principal SessionsJudge and District Magistrate. Such being the selection process forappointment of public prosecutors, the allegation under considerationhas been rightly discarded by the SIT albeit after thorough analysis ofall aspects relevant in that regard. There is nothing to indicate that anygrievance was received by the SIT from any quarter during the trial ofnine cases assigned to it by this Court for investigation, else there is noreason to doubt that SIT would have taken corrective measures andmade appropriate recommendations for being given effect to by theconcerned authorities in terms of the order of this Court dated1.5.2009[152A].

74. Similarly, the allegation No. (xvii) about failure to take actionagainst the print media has been discarded by the SIT[153] being insufficientevidence to make out any criminal case against the named offenders. Itis different matter that such publication must have been released, butno material is forthcoming that it has been done at the behest of thenamed offenders or they prevented the local police from taking action inthat regard. Emphasis was also placed by the appellant on the speechesdelivered by Dr. Praveen Togadia, named as offender No. 20 in hiscapacity as International General Secretary, VHP. However, that pieceof material cannot be the basis to link it with the allegation of larger

Acriminal conspiracy hatched at the highest level for causing andprecipitating mass violence across the State against the minoritycommunity during the relevant period. Further, 232 crimes regardinghate speeches came to be registered against the concerned personsacross the State. The SIT in connection with the complaint of appellant,was not expected to enquire into utterances made by different personsBconstituting hate speech during the surcharged situation of riots, as theremit of the SIT was to enquire into the allegation of larger criminalconspiracy at the highest level resulting in spreading of mass violenceacross the State during the relevant time.

75. Even the allegation No. (xviii) that State Home DepartmentCgave misleading reports about normalcy to the State Election Commission,has been discarded by the SIT after analyzing the relevant facts includingthe decision about the timing to conduct elections was that of the ElectionCommission. That was taken by the Election Commission of India despitenot accepting the statistics furnished by the State.

76. Reverting to the allegation regarding secret meeting [allegationNo. (xxxi) discussed at pages 329-332[154]] and meeting held byMr. Kalubhai Hirabhai Maliwad [allegation No. (xxxii) discussed at pages332-337[155]], the SIT after thorough investigation and analyzing therelevant materials, has opined that the same are figment of imaginationEreplete with inaccuracies and contradictions.

77. Our attention was drawn to the recommendations of the NHRCand also the report of the private Tribunal, named as Concerned CitizensTribunal. The narrative recorded therein cannot be the sole basis toproceed against the offenders. Whereas, dependent upon the quality ofFmaterials gathered by the SIT during thorough investigation done by iton all factual aspects including the ones referred to by the NHRC andthe private Tribunal, the SIT could form its independent opinion. TheSIT had precisely followed this route before submitting the final reportto the concerned Magistrate as per the direction given by this Court.

G78. The appellant had urged that the SIT had not investigated thewillful failure of the fire brigade in Ahmedabad to respond to the callsmade by the minority community being part of the criminal conspiracy.

154 pages 329-332 of original copy of the final report forming part of ConvenienceCompilation of respondent No. 2

155 pages 332-337 of original copy of the final report forming part of ConvenienceHCompilation of respondent No. 2

This argument is unfounded and tenuous. The fire services in AhmedabadCity come within the jurisdiction of Ahmedabad Municipal Corporationand not the State police or the State civil administration. TheCommissioner of Police of .Ahmedabad City, who has been blamed bythe appellant, had nothing to do with the functioning of the fire brigade.No tangible material is forthcoming to indicate that the Commissioner ofPolice of Ahmedabad City had issued instructions to the officials of fireservices in Ahmedabad City under the control of the AhmedabadMunicipal Corporation. Whereas, the materials collected by the SIT wouldreveal that in the entire city of Ahmedabad, blockades were created atvarious locations due to mass violence, making it difficult, if not impossible,for movement of the vehicles such as fire brigade. In any case, thisargument is one of inaction or failure of fire services in the AhmedabadCity. That cannot be the basis to infer criminal conspiracy, much lesshatched at the highest level to cause mass violence across the State.

79. The respondents had justly contended that the attempt of theappellant was to keep in improvising their grievances and make newallegations including to involve new offenders as being party to the largercriminal conspiracy hatched at the highest level. Appellant in filing theprotest petition had the gumption to assert that the list of persons wasnot exhaustive besides naming new persons as offenders. In the nameof protest petition (running into 514 pages), appellant was also indirectlyquestioning the decisions rendered by the Courts in other cases includingsub judice matters, for reasons best known to her. She was obviouslydoing so under dictation of someone. In fact, the sizeable contents of theprotest petition are founded on the affidavits filed by those persons, whoseversion have been found to be replete with falsehood.

80. Be that as it may, after going through the analysis done by theSIT of the concerned allegations, we have no hesitation in acceptingsuch opinion that no case had been made out against the named offenders,much less to indicate being party to the hatching of larger criminalconspiracy to cause or precipitate mass violence across the State againstthe minority community during the relevant period.

81. It is, therefore, not open to hold that the investigation by theSIT in the present case has been deficient or infirm. Suffice it to observethat every allegation found in the complaint (running into 67 pages) hadbeen culled out by the SIT and articulated in the form of thirty-two (32)broad allegations. The same had been duly investigated from all angles

Abefore submitting the report to this Court. The analysis and opinion ofthe SIT of the materials collected during investigation allegation-wise,witness-wise as well as, offender-wise are broadly agreed upon evenby the learned Amicus Curiae - except the observations made regardingsome matters, which observations have also been thoroughly enquiredinto by the SIT by way of further investigation and duly analyzed forBrecording its opinion[156] (appended as Annexure-1 to this judgment), inthe final report presented to the concerned Court. The Magistrate, aswell as, the High Court have accepted the final report presented by theSIT. For, there is no material worth the name to even create suspicion(leave alone strong suspicion and ground for presuming that the namedCoffenders had committed an offence of larger conspiracy), indicative ofthe meeting of the minds of all concerned at some level; and in particular,the bureaucrats, politicians, public prosecutors, VHP, RSS, Bajrang Dalor the members of the State political establishment - for hatching largercriminal conspiracy at the highest level to cause and precipitate massviolence against the minority community across the State during theDrelevant period. Such conclusion reached by the Magistrate and the HighCourt is unexceptionable.

82. We may hasten to add that our understanding about the thrustof the approach adopted by the SIT is not to form opinion because ofdoubting the credibility of the witnesses as such, which indeed wouldEhave been matter for trial. However, the SIT went by the logic offalsity of the information or material, including the same remaininguncorroborated despite the best endeavour made by the SIT. It is certainlynot case of failure of SIT in doing proper investigation into the allegationsof larger conspiracy as such. The SIT was obviously conscious that it

Fwould not be case of strong suspicion about the commission of offenceof larger criminal conspiracy - absent credible, verifiable and corroboratedinformation/material. It is for that reason it had to record its unambiguousopinion after duly analyzing all angles and the information/material collatedduring the enquiry/investigation - that there was no case for proceeding

against the named offender(s) as the offences under the relevant sectionsGof law were not made out; and, therefore, to urge upon the Magistrate toaccept the final report/closure report. This is not to say that the SIT andthe Courts have doubted the occurrence of instances registered as crimesduring the relevant period, nor have put seal of approval to such heart-

156 pages 398-467 of original copy of the final report forming part of ConvenienceHCompilation of respondent No. 2

rending instances. Whereas, every registered crime in that regard(including the unfortunate gruesome killing of husband of appellant), hasbeen duly investigated by the Court appointed SIT and accused person(s)involved in commission of such crimes have been duly identified and hadto face the trial before the jurisdictional Courts.

83. Relying on the decision in Nirmal Singh Kahlon[157], it wasurged that if it is open to file second FIR in connection with the allegedoffence, the self-imposed remit of the SIT can be no impediment forproceeding against the concerned persons on the basis of furtherinformation/material referred to in the protest petition or which comes tothe notice of the appellant in due course. The argument, though attractiveat the first blush, has been stated only to be rejected. In that, for theview that we have taken hitherto that the SIT, as well as, the Courtsincluding the appellant is bound by the sui generis directions issued bythis Court from time to time, the matter could be examined only in thatcontext and not in reference to the approach to be adopted in generalcases. Furthermore, the SIT has observed that the so-called additionalinformation/material would not improve the case of the appellant, astaking the same as it is, there is no indication therein about the perceivablelink to show hatching of criminal conspiracy at the highest level forcausing and precipitating mass violence across the State against theminority community during the relevant period.

84. The SIT was entrusted with investigation of nine (9) sets ofcrimes including the occurrences at the Gulberg Society. Status reportsregarding the progress of investigation was submitted to this Court in allthose cases and after satisfaction of this Court about the completion ofproper investigation done by the SIT, report(s) under Section 173 of theCode came to be filed in the concerned cases and the identified personsinvolved in commission of crime(s) were also sent for trial. Moreover,the trials of the concerned cases had progressed under continuoussupervision of this Court, which have ended in conviction of accused inthe concerned cases, as indicated in the Chart submitted alongwith FinalNote Part-1 filed on behalf of respondent No. 2, marked as Annexure-2[157A] and deemed to be part of this judgment.

85. Despite the humungous task undertaken by the members ofthe SIT with sincerity, objectivity and dispassionately including to the

Asatisfaction of this Court in all these cases, the argument of the appellantwas bordering on undermining the integrity and sincerity of the membersof the SIT. Needless to underscore that the SIT came to be constitutedby this Court of experienced senior officials with proven ability ofinvestigating complex offences. Therefore, we find such submission asnot only far-fetched and an attempt to undo and undermine the industryBof the SIT in having thoroughly investigated all the nine (9) sets of casesassigned to it by this Court, but also in the nature of questioning thewisdom of this Court. Hence, the assail of the appellant needs to bestated to be rejected. While observing sobriety, we say no more.

86. We do not wish to dilate on the other reported decisions, forCthe view we have taken and more so, we have followed the settled legalprinciples in answering the matters in issue.

87. We need to clarify that our analysis regarding sting operationor the Tehelka Tape and its transcript, is not final determination regardingthe evidentiary value thereof. We say so because the same will have toDbe dealt with in appropriate proceedings, in particular, other cognatecriminal cases investigated by the Supreme Court appointed SIT includingthose pending before the High Court and this Court.

88. While parting, we express our appreciation for the indefatigablework done by the team of SIT officials in the challenging circumstancesEthey had to face and yet, we find that they have come out with flyingcolours unscathed. At the end of the day, it appears to us that coalescedeffort of the disgruntled officials of the State of Gujarat alongwith otherswas to create sensation by making revelations which were false to theirown knowledge. The falsity of their claims had been fully exposed byFthe SIT after thorough investigation. Intriguingly, the present proceedingshave been pursued for last 16 years (from submission of complaint dated8.6.2006 running into 67 pages and then by filing protest petition dated15.4.2013 running into 514 pages) including with the audacity to questionthe integrity of every functionary involved in the process of exposing thedevious stratagem adopted (to borrow the submission of learned counselGfor the SIT), to keep the pot boiling, obviously, for ulterior design. As amatter of fact, all those involved in such abuse of process, need to be inthe dock and proceeded with in accordance with law.

89. To sum up, we are of the considered opinion that no fault canbe found with the approach of the SIT in submitting final report datedH

8.2.2012, which is backed by firm logic, expositing analytical mind anddealing with all aspects objectively for discarding the allegations regardinglarger criminal conspiracy (at the highest level) for causing andprecipitating mass violence across the State against the minoritycommunity during the relevant period. As aforementioned, the SIT hasgone by the logic of falsity of the information or material and includingthe same remaining uncorroborated. In that, the materials collected duringthe investigation do not give rise to strong or grave suspicion regardinghatching of larger criminal conspiracy at the highest level for causingmass violence across the State against the minority community and moreso, indicating involvement of the named offenders and their meeting ofminds at some level in that regard. The SIT had formed its opinion afterconsidering all the materials collated during the investigation. The questionof further investigation would have arisen only on the availability of newmaterial/information in connection with the allegation of larger conspiracyat the highest level, which is not forthcoming in this case. Hence, thefinal report, as submitted by the SIT, ought to be accepted as it is, withoutdoing anything more.

90. The Magistrate, upon presentation of final report could haveexercised different options – as predicated in Abhinandan Jha[158],Bhagwant Singh[159], Popular Muthiah[160]and Vishnu Kumar Tiwari[161].However, the Magistrate in the present case, after applying his mindindependently to the final report dated 8.2.2012 and the materials appendedthereto, chose to accept the same as it is, without issuing any otherdirection to the SIT.

91. After cogitating over the matter, we uphold the decision of theMagistrate in accepting the stated final report dated 8.2.2012 submittedby the SIT, as it is and rejecting the protest petition filed by the appellant.We do not countenance the submission of the appellant regarding infractionof rule of law in the matter of investigation and the approach of theMagistrate and the High Court in dealing with the final report.

92. Accordingly, we hold that this appeal is devoid of merits andresultantly, deserves to be dismissed in the aforementioned terms. Weorder accordingly.

157A Annexure-2 (at pages 450-452 of this judgment)158 supra at Footnote No. 28159 supra at Footnote No. 21160 supra at Footnote No. 30161 supra at Footnote No. 27

228SUPREME COURT REPORTS

Pending applications, if any, shall stand disposed of accordingly.ANNEXURE-1[162]

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��Opinion of Shri Raju Ramchandran, Amicus Curiae:-

Shri Raju Ramchandran, Sr. Advocate assisted by Shri GauravAggarwal, Advocate had been appointed as Amicus Curiae by theHon’ble Supreme Court of India to assist the Court in this matter. ShriCRaju Ramchandran, AC initially examined the Inquiry Report submittedby the SIT to the Hon’ble Supreme Court of India and submitted hisobservations on the findings of the SIT on 20.0l.2011, to the Hon’bleSupreme Court of India, in three parts i.e. Chart ‘A’, Chart ‘B’ & Chart‘C’.

DThe aforesaid observations made by the Ld. Amicus Curiae wereconsidered by the Hon’ble Spl. Bench of Supreme Court of India on15.03.2011, when the following observations were made:-

“A copy of the note submitted by the learned amicus Curiaehas already been supplied to the Chairman, SpecialEInvestigation Team (SIT). Let the Chairman, SIT, look into theobservations made by the learned amicus curiae against eachof the findings given by the SIT on the allegations made inthe complaint and submit this report thereon. If considerednecessary, it will be open to the SIT to carry out furtherinvestigation in light of the observations made in the saidFnote. The report shall be submitted by 25[th] April, 2011. Listthe case on 27[th] April, 2011 at 3:00 p.m.”

Pursuant to the aforesaid order, SIT conducted furtherinvestigation u/s 173(8) Cr.P.C. in Gulberg Society Case(Meghaninagar P.S. 1 CR No.67/02) as suggested by Ld. AmicusGCuriae in his observations submitted in the note dated 20.01.2011to the Hon’ble Supreme Court of India.

The recommendations made in Chart ‘A’ by the Ld. Amicus Curiaevis-à-vis further investigation conducted is discussed below:-

H162 see para 33 of this judgment

Chart-‘A’

ABCDEFGH

Observations made by Ld. Amicus Curiae:

It would be impossible to get anyone present in the meetingon 27-02-2002 to speak against Shri Modi, especially thebureaucracy and police officials.

It may not be correct to rule out the presence of Sanjiv Bhatt,IPS, DC (Int.) since Addl. DC (Int.) Shri G.C. Raiger was notavailable. There is no reason for him to make wrongstatement. He was willing to make statement if he wasprotected from legal repercussions of disclosing whattranspired in the meeting.

Result of further Investigation:

Further investigation in this regard revealed that theinformation about the burning of railway coach ofSabarmati Express near Godhra Railway Station wasreceived by Shri Narendra Modi, Chief Minister on27.02.2002 at about 0900 hrs. from Shri Ashok Narayan,the then ACS

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(Home). On receipt of the information, Shri Narendra Modiheld meeting at around 1030 hrs. with Shri GordhanZadafia, the then MoS (Home), Shri Ashok Narayan, thethen ACS (Home), Shri K. Chakravarthi, the then DGP,Shri P.C. Pande, the then CP, Ahmedabad City and otherpersonal staff of CM. Till then, no specific information wasavailable about the number of casualties and the injuredpersons. In this meeting, Shri Narendra Modi emphasisedthat the culprits responsible for the incident should beapprehended and not allowed to escape. No minutes of themeeting were prepared. However, Shri Ashok Narayan hadprepared note on the basis of information provided byDGP for CM and MoS (Home) to make statement in theAssembly as the question relating to the Godhra incidentwas likely to be raised in the Assembly which was in Session.The Chief Minister had given directions that the stepsshould be taken not to delay the medical help to survivingpassengers and also to impose curfew to avoid any untowardincident. Godhra being communally sensitive place. TheChief Minister had also instructed that the senior officersand the extra force, if required, must reach Godhra withoutany delay.

Around 1200 hrs, Chief Minister attended the Assemblysession and call attention motion relating to the Godhra incidenttabled by Shri Punjabhai Vansh, MLA came up for discussion at1300 hrs, but the Hon’ble Member was not present in the House.Dr. Mayaben Kodnani, MLA from Naroda spoke on the said issue.

CDEF

Shri Gordhan Zadafia, the then MoS (Home) made statement inthe House based on the aforesaid note prepared by Shri AshokNarayan, the then ACS (Home). During zero hour, ShriNarendra Modi made statement that he had discussedthe matter with the then Prime Minister Shri Atal BihariVajpaee and announced an ex-gratia payment of Rs.2,00,000/- each to the next of kin of those killed in theGodhra incident and also ordered High-Level Inquiry intothe incident. All these facts were mentioned in the Assemblyproceedings, as well as in the press release issued by theGovt. of Gujarat on 27-02-2002.

Shri Gordhan Zadafia, the then MoS (Home) left for Godhraby road around 1400 hrs. and reached there at about 1630 hrs,Shri Ashok Bhatt, the then Health Minister had already reachedGodhra around 1200 hrs. It may be mentioned here that 27-02-2002 was budget day in the Assembly and after the completionof the budget speech by Shri Nitinbhai Patel, the then FinanceMinister, the Assembly proceedings were over at about 1500 hrs.Shri Narendra Modi left for Ahmedabad airport around 1530hrs for his onward journey to Vadodara / Godhra. ShriNarendra Modi reached Ahmedabad airport at 1600 hrs andleft for Vadodara by Govt. aircraft. The Chief Ministerreached Vadodara at about 1630 hrs. and then proceededto Godhra by helicopter immediately, where he reachedaround 1645 hrs. He was accompanied by Shri Anil Mukim,the then Addl. PS to CM and Shri Jagdish Thakker, PROto CM. According to the press release issued by the Govt.of Gujarat on 27-02-2002, CM visited the scene ofoccurrence at Godhra Railway Station and then went to CivilHospital and saw the injured admitted there. Thereafter,he went to Collectorate and held meeting with theMinisters present there namely Shri Ashok Bhatt, ShriGordhan Zadafia, Shri Bhupendra Lakhawala, ShriPrabhatsinh Chauhan (all Ministers in the State Govt.) ShriBhupendrasingh Solanki, the then Member, Lok-Sabhafrom Godhra, Collector & District Magistrate, Godhra,Police Officers and Railway Officers. The Chief Ministerhad also met the press briefly thereafter. As per mediareports Shri Narendra Modi said the Govt. would ensurethe maintenance of peace in the State and the Govt. wouldnot be lacking in discharge of its duty. He also said thattragedy was unparallel in the history of Gujarat and assuredthe people that culprits would be punished. At no point oftime, Shri Jaydeep Patel, VHP leader, who was at Godhraon that day, had met him. The Chief Minister left Godhraby road around 1945 hrs (after the sunset) and reachedVadodara airport at about 2130 hrs. Shri Narendra Modileft for Ahmedabad by Govt. aircraft at 2130 hrs and reachedhis official residence at Gandhinagar at about 2230 hrs.

Investigation has further revealed that law & ordermeeting was held by Chief Minister at his residence around2300 hrs, which was attended by Smt. Swarna Kanta Varma,the then acting Chief Secretary, Shri Ashok Narayan, thethen ACS (Home) Dr. P.K. Mishra, the then PrincipalSecretary to CM, Shri Anil Mukim the then Addl. PS toCM, Shri K. Chakravarthi, the then DGP, Shri P.C. Pande,the then CP, Ahmedabad City, Shri K. Nityanandam, thethen Secretary (Home) and Shri Prakash S. Shah, the thenAddl. Secretary (Law & order). Shri G.C. Raiger, the thenAddl. DG (Int.), who was on casual leave and had returnedto Ahmedabad on 27-02-2002 evening, had not attendedthe same. However, Shri Sanjiv Bhatt, the then DeputyCommissioner of Intelligence (Security) has claimed to haveattended the said meeting at the instance of DGP.

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All the aforesaid officials have been re-examined andtheir statements recorded u/s 161 Cr.P.C. Their depositionin brief is given below:-

(i) According to Smt. Swarna Kanta Varma, the then acting ChiefSecretary, she was present in the said meeting, but she can notrecollect, as to whether any Minister or other police/Govt. officials(besides the individuals indicated above) were present there. Onbeing shown the photograph of Shri Sanjiv Bhatt, she hasstated that she can not recollect having met or seen him inthis meeting or in any meeting during the period of hercharge as Chief Secretary, Smt. Swarna Kanta Varma hasstated that Chief Minister had said in the aforesaid meetingthat the Godhra incident was very unfortunate and that itshould be handled with firm hand. However, she hasdenied that there was any mention by Chief Minister ofbalancing action against Hindus and Muslims or Muslimsbe taught lesson or Hindus be allowed to vent their anger.

(ii) Shri Ashok Narayan, the then ACS (Home) has statedthat Shri Sanjiv Bhatt, the then DC (Security) did not attendthe said meeting on 27-02-2002. He has further stated thatno Minister was present in the said meeting. He has alsostated that DGP gave sequence of events of Godhra incident,possible repercussions of the same and also about his requirementof additional forces. He has denied any utterances by ChiefMinister to the effect that the police approach of balancingaction against Hindus and Muslims would not work anymore, Muslims should be taught lesson and that Hindusshould be allowed to vent their feelings/anger. He has,however, stated that Chief Minister did say that the peoplewere outraged by the Godhra incident and therefore,effective steps should be taken to control the communalriots.

(iii) Shri P.K. Mishra, the then Principal Secretary to CMhas categorically denied the presence of Shri Sanjiv Bhatt,the then DCI (Security) in the meeting of 27-02-2002. Hehas further denied the presence of any politicians in thesaid meeting. As regards the observation allegedly madeby CM that for too long the Gujarat Police had beenfollowing the principle of balancing actions against theHindus and Muslims while dealing with the communal riotsin Gujarat; the situation warranted that the Muslims be

taught lesson to ensure that such incidents do not recurand that the emotions were running very high amongst theHindus and they be allowed to vent their anger, Shri Mishrahas stated that it was not true that Chief Minister talked inthese terms. He has further stated that in this meeting, officialsof the Home Department and police officers apprised CM aboutthe action already taken to prevent any untoward incident in viewof the emerging situation and the bandh call. He has also statedthat CM briefed the officials about his Godhra visit andimpressed upon them to take all possible steps includingpreventive arrests to avoid any untoward incident.

(iv). Shri K. Chakravarthi, the then DGP has stated that ShriG.C. Raiger, the then Addl. DG (Int.) was on casual leave on27-02-2002, and therefore, he did not attend the said meeting. Hedoes not recollect, as to whether Shri Raiger contacted him overphone on 27-02-2002 evening and informed him about his arrivalat Ahmedabad. However, he has categorically stated thatShri Sanjiv Bhatt did not attend the said meeting on27-02-2002 night at CM’s residence and no suchinstructions were given by Chief Minister. Shri Chakravarthihas added that in case Shri G.C. Raiger was available atAhmedabad, he would have given instructions to him to attendthis meeting through the State Control Room rather than askingShri Sanjiv Bhatt to attend. According to Shri Chakravarthi ShriO.P. Mathur, the then IGP (Admn. & Security) was also availableand could have been called in the said meeting instead of calling ajunior officer of SP level (Shri Sanjiv Bhatt). Shri Chakravarthihas further stated that as per his recollection, none of theMinisters/politicians had attended the said meeting on27-02-2002. Shri Chakravarthi has also stated to havebriefed CM about the bandobast made by him in the wakeof the bandh call given by VHP on 28-02-2002, and alsoabout the additional requirement of forces. ShriChakravarthi had also informed CM about the appeal madeby him to the general public on Door-Darshan/All IndiaRadio to maintain peace. As per Shri Chakravarthi, CMhad said that the Godhra incident was very serious andbound to affect the public at large and therefore, adequatearrangements should be made. Shri Chakravarthi has stated

that CM had also spoken about the Govt. decision totransport dead bodies of Godhra victims to Ahmedabad Cityby road and to keep them in Sola Civil Hospital, which wasthen located on the outskirts of Ahmedabad City. Accordingto Shri Chakravarthi, this decision was not opposed byanyone in the meeting, as considerable number of victimsbelonged to Ahmedabad and nearby places. Regarding theallegation against Chief Minister for speaking in the termsthat for too long the Gujarat Police

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had been following the principle of balancing the actionagainst the Hindus and Muslims etc. and the Hindus beallowed to vent their anger, Shri Chakravarthi has deniedany such utterances by Chief Minister in the meeting. Healso denied having spoken to Shri R.B. Sreekumar, the thenAddl. DG (Arms Unit) in this regard.

(v) Shri. P.C. Pande, the then Commissioner of Police,Ahmedabad City has denied the presence of Shri Sanjiv Bhattin law & order meeting called by Chief Minister on27-02-2002 night. He has further stated that the meeting lastedfor 15-20 minutes and that the discussions centred aroundmaintenance of Law & order in view of the bandh call for thenext day, its likely repercussions and availability of forces. Asregards the allegations against Chief Minister about havingsaid that for too long the Gujarat Police had been followingthe principle of balancing the actions against Hindus andMuslims etc. etc. and the Hindus be allowed to vent theiranger, Shri Pande has categorically stated that no suchinstructions to allow any freedom to any law breaker weregiven by Chief Minister. He has out rightly denied thepresence of any Minister or Shri Sanjiv Bhatt, the then DCI(Security) in the said meeting. Regarding the Govt decision totransport the dead bodies of Godhra Victims to Ahmedabad, ShriPande has stated that he does not recollect the exact talks, whichtook place in the said meeting, but the sum and substance ofthe discussions was that the dead bodies were being brought

to Ahmedabad City with view to facilitate the relatives ofthe deceased persons to identify and claim the same.

(vi) Shri Anil Mukim, IAS, the then Addl. PS to CM has statedthat he attended the said meeting for some time and then leftafter taking permission from Shri P.K. Mishra, IAS (Retd.) thethen Principal Secretary to CM. He has further stated that aslong as he was present in the meeting, general discussions wereheld regarding the Godhra incident and necessary preventivemeasures required to be taken under the circumstances were alsodiscussed. He has out rightly denied any utterances/instructions by CM about Muslims being taught lessonand the Hindus being allowed to vent their anger, in hispresence. He has denied the presence of Shri Sanjiv Bhatt,the then DCI (Security) in the said meeting. He has alsodenied the presence of any Minister or politician in themeeting.

(viii) Shri K. Nityanandam, the then Secretary (Home) has statedthat he attended the law & order meeting called by the ChiefMinister at his residence on 27-02-2002, at about 2300 hrs. Hehas further stated that the deliberations in the meetingmainly revolved around the Law & order situation postGodhra train incident and efforts to handle future Law &order problems in view of the bandh call on 28-02-2002.He has denied the presence of any Minister or Shri SanjivBhatt in the said meeting. He has also denied any suchalleged observations made by the Chief Minister aboutMuslims being taught lesson etc. etc. and the Hindus beallowed to vent their anger. According to ShriK. Nityanandam, he does not recollect Shri Sanjiv Bhattbeing present in any law & order meetings called by theChief Minister as IGP/Addl. DGP rank officer wereavailable in the State Intelligence Bureau to present theissues relating to intelligence.

(ix) Shri Prakash S. Shah, the then Addl. Secretary (Law &order) has confirmed to have attended the Law & order meetingcalled by the Chief Minister at his residence on 27-02-2002 night.He has further stated that the Chief Minister gave anaccount of Godhra incident, while Shri Chakravarthi and

ABC

Shri Pande briefed CM about the possible repercussionsof Godhra incident about the arrangements and bandobastmade by them and also about the deployment of forces.According to Shri Shah, the Chief Minister instructed allthe officers that communal peace and harmony bemaintained at all costs and all possible steps be taken tocontrol the possible communal flare up. He has denied thepresence of any Minister or Shri Sanjiv Bhatt in the saidmeeting. He has further stated that the Chief Minister didnot say anything on the lines of the police approach ofbalancing action against Hindus and Muslims and also thatthe Hindus should be allowed to vent their anger.

(x) Shri Sanjiv Bhatt, the then DCI (Security) stated that hereceived intelligence inputs on 27-02-2002, regarding the despatchof dead bodies from Godhra to Ahmedabad under police escort,the State supported bandh call and the intention of the Sangh Parivaractivists to parade the dead bodies in the form of funeral processionin communally sensitive areas of Ahmedabad City. He has claimedto have attended late night meeting of 27-02-2002 called by theChief Minister at his residence about which he was intimated byState IB Control Room and State Police Control Room that ShriK. Chakravarthi, the then DGP wanted him to accompany thelatter in the said meeting. Significantly; at enquiry stage Shri SanjivBhatt himself has admitted in his signed statement that Shri G.C.Raiger; the then Addl. DG (Int.) was on casual leave till

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28.02.2002, but had curtailed his leave and came back toAhmedabad on 27.02.2002 evening. This fact has been confirmedby Shri G.C. Raiger, the then Addl. DG (Int.), who has stated tohave called DGP and informed about his availability from theevening of 27.02.2002. Moreover, Shri P. B. Upadhay, the thenDCI (Communal), the concerned officer dealing with thecommunal subject has also stated to have curtailed his casualleave on 27.02.2002 and was available in the office. He alsostated that he had accompanied Shri K. Chakravarthi inthe latter’s car from DGP’s office to CM’s residence andclaimed that he attended the said meeting, which was alsoattended by Incharge Chief Secretary Smt. Swarna KantaVarma, ACS (Home) Shri Ashok Narayan, Shri Anil Mukim,the then Addl. PS to CM, Shri P.C. Pande, the then CP,Ahmedabad City and Shri K.Nityanandam, the thenSecretary (Home). However, he is unable to recollect, asto whether Shri P.K. Mishra, the then Principal Secretaryto CM was present in the said meeting or not Shri Bhatthas further stated that to the best of his recollection, nopolitician/Minister was present in the said meeting. He hasalso stated that Shri G.C. Raiger, the then Addl. DG (Int.) did notattend the said meeting being on casual leave and that he was notaware, as to whether Shri Raiger had returned to Ahmedabad on27-02-2002 evening. He has denied to have contacted Shri Raigeron 27-02-2002 evening, at his residence. Shri Sanjiv Bhatt hasclaimed that he used to attend the intelligence related meetingscalled by the Chief Minister. As per Shri Bhatt, this meetingwas essentially Law & order review meeting and the mainissues discussed during the said meeting revolved aroundthe bandh call given by VHP and ruling BJP as well thedecision to bring the dead bodies of Godhra victims toAhmedabad. Shri Sanjiv Bhatt has also stated that Shri P.C.Pande, the then CP, Ahmedabad City had strongly opposedthe Govt. decision for the transportation of dead bodies ofGodhra victims to Ahmedabad as the same was likely tolead to serious communal riots in Ahmedabad City and theseviews were supported by Shri K. Chakravarthi, the thenDGP. According to Shri Sanjiv Bhatt, Shri Chakravarthi hadconveyed to CM that the available resources of GujaratPolice were over stretched to cope with the law & ordersituation that was likely to arise in the wake of bandh callgiven by the VHP on the next day and had expressed hisinability to supplement the manpower resources of CP,Ahmedabad City. Shri Sanjiv Bhatt has stated that as per hisrecollection, there was no meaningful contribution from Shri K.Nityanandam, the then Secretary (Home). Shri Ashok Narayan,the then ACS (Home) and Smt. Swarna Kanta Varma, the thenacting Chief Secretary. Shri Sanjiv Bhatt has further stated thatDGP and CP, Ahmedabad City tried to impress upon the Chief

Minister that the bandh call given by VHP on 28-02-2002, whichwas supported by the ruling party BJP was not good idea, as faras the law & order situation of the State was concerned but theChief Minister did not seem to be convinced by their argumentsand stated that the incident like burning of kar-sevaks at Godhracould not be tolerated. According to Shri Bhatt, CM impressedupon the gathering as below :-

“That for too long the Gujarat Police had been followingthe principle of balancing the actions against the Hindusand Muslims while dealing with the communal riots inGujarat. This time the situation warranted that the Muslimsbe taught lesson to ensure that such incidents do notrecur ever again. The Chief Minister Shri Narendra Modiexpressed the view that the emotions were running veryhigh amongst the Hindus and it was imperative that theybe allowed to vent out their anger”.

According to Shri Sanjiv Bhatt, no minutes of the meetingwere prepared by him or DGP, but he had no knowledge as towhether any minutes were kept by CM’s office or HomeDepartment. He also claimed of making mention of the saidmeeting in his movement diary for February, 2002. Shri SanjivBhatt has further stated that he expressed his opinion against thedecision of BJP to support the bandh call given by VHP and alsothe decision of the administration to-bring the dead bodies of thevictims from Godhra to Ahmedabad City. He also stated that heexpressed view that the taking out of the funeral procession ofthe victims in the respective areas would lead to major communalviolence in Ahmedabad City and other communally sensitive areasacross the State.Shri Sanjiv Bhatt stated that he took leave thereafter fromShri K. Chakravarthi, the then DGP, and returned to state IBoffice in order to send alert messages and instructions to theconcerned police/intelligence units. Subsequent to the aforesaidmeeting at CM’s residence, Shri Bhatt has claimed to have issuedseveral messages to the Police units as well as the field units ofthe IB with respect to the developing situation including thepossibility of wide spread communal violence during the Gujaratbandh and wherein, he reiterated to different CsP and SSP to

take all possible measures to prevent untoward incidents in theirrespective jurisdiction. Surprisingly, he

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informed everyone about it but did not inform his own Head ofthe Department i.e. Shri G.C. Raiger, whom he had allegedlyrepresented in the meeting and whose present in the station wasvery much in his knowledge. He has denied to have contactedShri G.C. Raiger over phone in the night of 27-02-2002 and hasstated that he briefed Shri Raiger about the said meeting and thedeliberations that had taken place, when he had attended officeon the next day, i.e. 28-02-2002 morning, at about 1000 hrs whichhas been denied by Shri Raiger. Interesting, the call details ofGovt. mobile phone of Shri Sanjiv Bhatt show that he was atAhmedabad till 1057 hrs on 28.02.2002. He has further claimedthat the details of the discussions held during the said meetingwere not mentioned in any of the official correspondence/reportsas he had attended the said meeting in the capacity of anintelligence Officer. Further, Shri Sanjiv Bhatt has claimed thatthe reports had started coming in the office of the State IBregarding the preparations made by the cadres of Sangh Parivarto carry out strict enforcement of the bandh call given by them on28-02-2002, and that same should be available in the records ofState IB. Shri Sanjiv Bhatt has also claimed to have attended thesecond meeting at CM’s residence on 28-02-2002 at about 1030hrs along with Shri G.C. Raiger, the then Addl. DG (Int), in whichthe deployment of manpower during the Gujarat bandh wasdiscussed to monitor the developing situation and that this meetingwas also attended by Shri K. Chakravarthi, the then DGP, ShriAnil Mukim, the then Addl. PS to CM, Late Ashok Bhatt, the thenHealth Minister and Shri I.K. Jadeja, the then Urban DevelopmentMinister. Shri Bhatt has further stated that on the conclusion ofthe said meeting, the Chief Minister had instructed DGP that LateAshok Bhatt and Shri I.K. Jadeja would be assisting the police inmonitoring the situation and that all necessary assistance must berendered to the Ministers. Shri Sanjiv Bhatt has also stated thatCM had not specifically instructed as to how the Ministers wouldassist the police. Further, according to Shri Sanjiv Bhatt, the issue

DEFGH

relating to the requisitioning of the Army was also discussed onthe basis of the suggestions given by DGP and Addl. DG (Int.),but the Chief Minister seemed to be reluctant and was of theview that they should wait and watch, as to how the situationdeveloped and not rush for the requisitioning of Army.

According to Shri Bhatt, he returned to the Police Bhavanand went to his chamber on the second floor, but shortly thereafterwent to DGP’s chamber around 1100 hrs to obtain his signaturefor requisitioning additional forces and found Late Ashok Bhattand Shri I.K. Jadeja seated in his chamber, where everyone tooktea. Shri Sanjiv Bhatt has further stated that sometime later, hevisited State Control Room on the first floor of Police Bhavan, tocollect some documents and saw Shri I.K.Jadeja and his staffmembers occupying the chamber of Dy.SP State Control Room.Finding this arrangement to be little odd and inconvenient, withthe permission of the DGP he shifted Shri Jadeja and his staff tothe chamber of Shri P.C. Thakur, the then IGP, who was on leave.Later during the day, Shri Sanjiv Bhatt came to know that ShriJadeja had left the Police Bhavan, However, as per Shri SanjivBhatt, Shri Jadeja did not interfere with the working of State PoliceControl Room on 28-02-2002, or thereafter. Shri Sanjiv Bhatt hasalso claimed that he came to know from his staff later that LateAshok Bhatt was stationed in Ahmedabad City Police ControlRoom on 28-02-2002.

On being questioned, as to whether deliberations in CM’smeeting or the developments in the Control Rooms were mentionedby him in any of the reports submitted to the senior officers at anystage, Shri Sanjiv Bhatt has claimed that he had attended the saidmeeting along with the DGP and Addl. DG (Int.) as Staff Officerand as such there was no necessity to submit any report to them.Shri Sanjiv Bhatt has claimed to have received information abouta mob attack on Gulberg Society around 1130 hrs on 28-02-2002,and he had deputed PI Shri Bharwad of Ahmedabad RegionalOffice located in Meghaninagar to go to Gulberg Society, to reporton the developing situation and inform the State IB. According toShri Bhatt, he had conveyed these developments to DGP andAddl. DG (Int.) personally. In view of the fact that Late AhesanJafri, Ex-MP was residing in the Gulberg Society, he (Sanjiv Bhatt)

telephonically conveyed the details about the developing situationto the Chief Minister directly. However, he does not recollect, asto whether he had spoken to the Chief Minister over landline orover the mobile phone of Shri O.P. Singh, PA to CM. Shri SanjivBhatt has stated that he attended another meeting at CM’sresidence on 28.02.2002 afternoon for the assessment of theongoing situation, which was attended to by ACS (Home), DGP,Addl. DG (Int.), and Secretary (Home), in which the Chief Ministerhad agreed to send formal requisition to Govt. of India fordeployment of Army. He has claimed that he briefed the ChiefMinister about the ongoing developments at Gulberg Society andalso about the threat to the life of Late Ahesan Jafri and otherresidents of the Gulberg Society Shri Sanjiv Bhatt has gone to theextent of claiming that the Chief Minister took him aside after themeeting and informed him that he had learnt that Late AhesanJafri had

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opened fire on Hindus during earlier communal riots. Accordingto Shri Sanjiv Bhatt, the Chief Minister asked him to dig out all thefacts pertaining to earlier instances, wherein Late Ahesan Jafrihad opened fire during the past communal riots. Shri Bhatt claimedthat he conveyed these facts to Shri G.C. Raiger, the then Add.DG (lnt.). However, Shri Bhatt has stated that he could not check/collect this information as he remained busy with certain urgentmatters connected with the riots. Shri Sanjiv Bhatt has deniedhaving submitted any report to his department and claimed thathe had attended this meeting as Staff Officer to the DGP orAddI DG (Int.), which is incorrect as there was no post of StaffOfficer to Addl. DG (Int.).

On being questioned, as to why did he not appear as awitness in response to public notice issued by SIT on11-03-2008, he claimed that he did not disclose the same to anyone,as it would not have been appropriate on his part to divulge anyinformation that he was privy to as an Intelligence Officer unlesshe was under legal obligation to do so. He has also stated thathe did not file any affidavit or appeared before any commission orany other body enquiring into the communal riots of 2002, because

he was not asked by the Govt. of Gujarat, DGP or AddI.DG (Int.)to do so. He has denied knowledge as to whether the allegedinstruction given by the Chief Minister were passed on to the fieldunits by any of the officers, who had attended the meeting on 27-02-2002. The stand taken by Shri Sanjiv Bhatt is not acceptableon account of the fact that firstly it was essentially law & ordermeeting, in which many civilian officers were present and therewas nothing secret about it. Furthermore, Shri Bhatt has variousopportunities and legal obligations to disclose these facts, if true,firstly to Shri R.B. Sreekumar, the then Addl. DG (Int.), who hadasked him to provide any oral and documentary relevant fact tobe included in his affidavit relating to riots Incidents on behalf ofState IB required to be filed before Nanavati Commission,

Secondly, Nanavati Commission legally constituted body underCommission of Inquiry Act had issued public notice calling uponany one having knowledge about the incident of issues involvedbefore it, to file an affidavit and furnish information, but Shri SanjivBhatt did not file any affidavit. Thirdly, SIT, legally constituted bythe Hon’ble Supreme Court of India had also issued public noticeon 11.04.2008 calling upon the people to come forward and giveinformation relating to the riots. but Shri Sanjiv Bhatt convenientlydid not come forward. Fourthly. another opportunity was given tohim in November, 2009, to make statement during the course ofinquiry ordered by the Hon’ble Supreme Court of India, but ShriSanjiv Bhatt took the plea that it would not be professionallyappropriate on his part to divulge the exact nature of discussionthat took place during the said meeting, unless he was duty boundto disclose the same under legal obligation.

Shri Sanjiv Bhatt, on his own and without being summonedappeared before the IO on 25-03-2011, i.e. two days after therecording of his statement, along with one constable named ShriK.D. Panth and requested that his (Bhatt’s) further statementshould be recorded. In his further statement, Shri Sanjiv Bhattmentioned the names of two Assistant Intelligence Officers (AIOs)namely, Shri Shailesh Raval and Shri K.D. Panth, who used toaccompany him to most of the meetings. He has further statedthat subsequent to the recording of his statement on 21 &22.03.2011, he had been able to recollect that Shri K.D. Panthhad followed him to CM’s residence with the files in his staff carfrom DGP’s office, whereas he himself had accompanied DGPShri K. Chakravarthi in the latter’s staff car. He has also statedthat Shri K.D. Panth returned with him in his car to Police Bhavanand remained in the office till late in the night and attended tourgent official work. Shri Sanjiv Bhatt also informed that thenShri Tarachand Yadav, was his driver who is presently attachedto Shri V.K. Mall, Joint Director, Gujarat Police Academy, Karai,Gandhinagar. Shri Sanjiv Bhatt also disclosed that, as DCI(Security), he was using the Govt. mobile phone no. [REDACTED].

During the course of further investigation seven senioradministrative and police officers namely, Shri Ashok Narayan,the then ACS (Home), Shri P.K. Mishra, the then PrincipalSecretary to CM, Shri K. Chakravarthi, the then DGP, Shri P.C.Pande, the then CP Ahmedabad City, Shri Anil Mukim, the thenAddl. PS to CM, Shri K. Nityanandam, the then Secretary (Home)and Shri Prakash S. Shah, the then Addl. Secretary (L&O), whohad been earlier examined during 2009-10 have categorically statedthat Shri Sanjiv Bhatt, the then DCI (Security) was not present inthe said meeting held at CM’s residence on 27.02.2002 night.During the earlier inquiry, three participants of this meeting namelyShri Nityanandam, Shri Anil Mukim and Smt. Swarna KantaVerma were not asked this question while three others namelyShri Ashok Narayan, Shri P.C.Pande and Shri P. K. Mishra hadstated that they did not recollect. Shri P.S. Shah had not beenexamined during the inquiry. However, Shri K. Chakravarthi had

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stated at that stage also that Shri Bhatt was not present in thismeeting. They have also confirmed that no Minister/Politician waspresent in the said meeting.

Smt. Swarna Kanta Varma, being ACS (Health & FamilyDeptt.) and the then acting Chief Secretary was never posted inthe Home Department and therefore, she did not know Shri SanjivBhatt, the then DCI (Security). On being shown the photographof Shri Sanjiv Bhatt, she has stated that she cannot recollect havingever met or seen him in any meeting. According to Smt. Swarna

Kanta Varma, the Chief Minister had stated in the said meetingthat incident in Godhra was very unfortunate and it should bedealt with heavy hand. She also does not recollect having seenany Cabinet Minister in the said meeting. All the participants ofthe meeting held on 27.02.2002 night, have denied that CM haduttered any words on the lines that Gujarat Police had beenfollowing the principle of balancing the actions against the Hindusand Muslims while dealing with the communal riots in Gujarat andthat the situation warranted that Muslims be taught lesson toensure that such incident do not recur ever again and that theemotions were running very high amongst the Hindus and they beallowed to vent their anger.

There is unanimity amongst all the participants of the saidmeeting that no Minister/politician was present in the meeting.Shri Bhatt has contended that Shri P.C. Pande, the then CPAhmedabad City had strongly opposed the Government’s decisionregarding transportation of the dead bodies to Ahmedabad City,as the same was likely to lead to communal riots and that hisviews were supported by Shri K. Chakravarthi, the then DGP.His version stands contradicted by Shri P.C. Pande, the then CP,Ahmedabad City, who had stated that the sum and the substanceof the meeting was that the dead bodies were being brought toAhmedabad City with view to facilitate the relatives of thedeceased to identify and claim the same.Shri K. Chakravarthi, the then DGP has clearly stated thatthe decision of the Govt. To bring the dead bodies of Godhravictims at Ahmedabad City, was not opposed by anyone on theground that large number of victims belonged to Ahmedabadand nearby places, which were easily approachable, fromAhmedabad. This would go to show that Shri Sanjiv Bhatt wasgiving an imaginary account of the deliberations of the meetingand did not know as to what exactly transpired there. Further, ithas been contended by Shri Sanjiv Bhatt that both DGP and CP,Ahmedabad City had tried to impress upon the Chief Ministerthat the band call given by the VHP on 28-02-2002, which wassupported by the ruling party BJP was not good idea as far asthe Law & order situation of the State was concerned and thatthe Chief Minister was not convinced by their arguments. In this

regard, Shri K. Chakravarthi, the then DGP has stated that in thenight of 27.02.2002, he did not know that the bandh call given bythe VHP was supported by the ruling party BJP and as such therewas no question of any such opposition by him. Shri P.C. Pandehas also stated that on 27.02.2002, he did not know that the bandhwas supported by the BJP and came to know about it only on28.02.2002, through newspaper reports. All the participants ofthe meeting have stated that the Chief Minister had expressedthe apprehension that the Godhra incident was very serious andbound to affect the public at large, as result of which therecould be repercussions and therefore, adequate bandobast wasneeded to avoid any untoward incident.

Shri Sanjiv Bhatt has claimed that he mentioned thefact of having attended the said meeting on 27-02-2002 nightin his movement diary. However, the State IB has reportedthat no such diary was being submitted by Shri Sanjiv Bhatt,Shri G.C. Raiger, the then Addl. DG (Int.) has stated thatthere was no such system of submitting any monthlymovement diary by DC and that Shri Sanjiv Bhatt had neversubmitted any such diary. Shri Sanjiv Bhatt have claimed tohave briefed Shri G.C, Raiger, the then Addl. DG (Int.) on28.02.2002, at about 1000 hrs about the alleged meetingheld by the Chief Minister and also about the illegalinstructions given by the latter. This claim is absolutelyfalse and is contradicted from the call detail records of theGovt. mobile phone no. [REDACTED] of Shri Sanjiv Bhatt,which show that the location of Shri Sanjiv Bhatt was atMemnagar, Ahmedabad till 10:57:43 hrs on 28.02.2002.Further, Shri Sanjiv Bhatt has claimed that he did not submitany report about the meeting held by the Chief Minister athis residence on 27.02.2002 night, as he attended themeeting as Staff Officer to DGP/Addl. DG (Int.). Thiscontention put forward by Shri Sanjiv Bhatt is absurdbecause there was no post of Staff Officer to Addl DG (Int.)and Shri K. Chakravarthi has denied that Shri Sanjiv Bhattwas posted as Staff Officer to DGP, as the Staff Officer wasof the rank of Dy. SP and not SP Shri Sanjiv Bhatt hascontended that he did not file affidavit nor appeared as awitness before the SIT in response to public notice issued

by the SIT, as it would not have been appropriate on hispart

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to divulge any information that he was privy to as anintelligence officer unless he was under legal obligationto do so. In this connection, it would not be out of place tomention here that assuming for the time being that ShriSanjiv Bhatt attended the alleged meeting of 27.02.2002the same was essentially law & order meeting attendedby the various officials of State Administration and thereforethe question of oath of secrecy or application of the OfficialSecrets Act does not arise because it was neither secretmeeting nor would the revelation of the contents of thesaid meeting jeopardized the public interest. Shri SanjivBhatt has used the weapon of the Official Secrets Act onlyas pretext with view to justify long delay of nine yearsjust because an official of the intelligence unit attended alaw & order meeting, the same does not became secretmeeting for which privilege of secrecy is being claimedby Shri Sanjiv Bhatt. In any case, Nanavati Commission andSIT have been set up under the provisions of law of theland and all the citizens/ officials are legally bound to divulgethe information available with them which are relevant tothe terms of reference/ crimes of the Commission beinginvestigation by SIT.

In view of this, the explanation put forward by ShriSanjiv Bhatt does not hold good Shri Sanjiv Bhatt had goneto the extent of saying that he learnt from the other staffthat Late Ashok Bhatt was stationed in Ahmedabad CityPolice Control Room, which has no value, whatsoever, beingthe hearsay evidence. The claim of Shri Sanjiv Bhatt thathe had opposed the bringing of dead bodies to Ahmedabadfrom Godhra, is belied from the fact that all the participantsof the said meeting have categorically stated that Shri SanjivBhatt did not attend the said meeting.

Shri Sanjiv Bhatt has specifically claimed that he hadaccompanied the DGP Shri K. Chakravarthi to theresidence of the Chief Minister in the night of 27.02:2002in latter’s staff car, which has been denied by ShriK. Chakravarthi. The statement of Shri K. Chakravarthihas been supported by the entry made by ShriK. Chakravarthi in his staff car log book written by him onthe relevant date in his hand, which show that two persons(1+1), i.e. DGP and his PSO used the car on 27.02.2002.The version of Shri K. Chakravarthi is further corroboratedby his PSOs namely Shri Dilip Ahir and Shri Dharmpal Yadav,who have categorically stated that Shri Sanjiv Bhatt neveraccompanied the DGP in his staff car.It is fact that Shri Sanjiv Bhatt did send four wirelessmessages on 27-02-2002 to all the jurisdictional officers to takeall precautionary measures to prevent communal riots as Godhraincident was likely to have State wide repercussions. Thesewireless messages were sent by him as DCI (Communal) as ShriP.B. Upadhyay, the then DCI (Communal) was on casual leaveon that day i.e. 27-02-2002. However, he had resumed duty in theevening. Significantly, on 28-02-2002, all the concerned wirelessmessages were sent by Shri P.B. Upadhyay, the then DCI(Communal), who was dealing with the subject. Shri Sanjiv Bhattas DCI (Security) had also sent fax message on 28-02-2002, toHome Secretary, Gandhinagar with information to PS to CM, PSto MoS (Home), DGP and Commissioner of Police, AhmedabadCity, in which he had intimated about Hindu mob attack onGulberg Society resulting into death of atleast 18 persons includingLate Ahesan Jafri, Ex-MP and its family members and the attackwas continuing. Shri Bhatt had expressed his apprehension thatthis incident could have State wide ramifications. Though no timehad been mentioned on this message, yet it appears that this faxmessage was sent only after the killings had taken place and theGulberg Society had been set on fire. In all probability this messagehad been sent on the basis of the fax message sent by PI C.J.Bharwad, the then PI, Ahmedabad City Regional State IB officeat 1700 hrs.

Shri Sanjiv Bhatt has further contended that in view of thefact that Late Ahesan Jafri, Ex-MP was residing in Gulberg Society,he had telephonically conveyed the details directly to the ChiefMinister either on landline or on the mobile phone of Shri O.P.Singh, PA to CM. However, he has not been able to specify onwhich telephone he rang up the Chief Minister. Shri O.P. Singhhas denied that he received any call from Shri Sanjiv Bhatt. Thecall details of Gandhinagar tower are not available as the samehad not been requisitioned by Shri Rahul Sharma, the then SP,during investigation of the riot cases Notably there is no practicein Gujarat of SP level officers speaking directly to CM over phone.Further, Shri G.C. Raiger the then Addl. DG (Int.), who was verymuch in office on 28.02.2002, has stated that this was totally falseand that Shri Sanjiv Bhatt had never informed him about it.

Shri C.J. Bharwad, the then PI, State IB, AhmedabadRegion has stated that on 28.02.2002, on the basis of informationcollected by him during the riots, he had gone to Gulberg SocietyMeghaninagar of his own and passed on the various informationreports collected by him

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to State IB Control Room. He has further stated that around 1215hrs on 28-02-2002, he had sent message to State IB ControlRoom that since Muslims reside in Gulberg Society inMeghaninagar area, strict watch should be kept there. He hascontradicted the statement made by Shri Sanjiv Bhatt, the thenDCI (Security), and has denied to have any telephonic discussionswith him about the situation in Gulberg Society in as much as thesubject concerned the “Communal” Desk of IB was being lookedafter by Shri P.B. Upadhyay, the then DCI(Communal). He hasfurther stated to have passed on message at 1450 hrs on28.02.2002, that mob of 3000 rioters had surrounded GulbergSociety. On 28-02-2002 itself, he had passed on another messageat 1700 hrs that mob of 5000 rioters had surrounded and set fireto the Gulberg Society, in which several persons including LateAhesan Jafri, Ex-MP had been burnt alive and that policedeployment was required. The version of Shri Bharwad belies

the testimony of Shri Sanjiv Bhatt, the then DCI (Security), whohas claimed that he had given directions to Shri Bharwad to go tothe Gulberg Society and give the latest updates and that ShriBharwad was in constant touch with him.

Investigation further revealed that the headquarters of StateIntelligence Bureau is located at Gandhinagar and is headed byan Addl. DG, assisted by IGP (Security), DIG (Political &Communal) and three Deputy Commissioners of Intelligence andother officers and supporting staff. Besides State IB, there areintelligence units headed by Inspectors/ Dy SsP workingindependently in the Districts. The State IB has been entrustedwith the duties of collection of intelligence in respect of maintenanceof law & order including communal intelligence in Gujarat State.In brief, the functions, of the State IB relate to collection andcollation of information regarding political, industrial and othersimilar development in the State, verification of antecedents,protection and security of the VIP’s, watch over anti-nationalactivities, movement of foreigners and all other matters pertainingto the internal security, collection of intelligence regarding all typesof communal activities and to keep the Govt. informed of all theseactivities from time to time.

In February, 2002, Shri G.C. Raiger was posted as Addl.DG (Int.) and was assisted by Shri O.P. Mathur, IGP (Security &Admn.). In addition, there was another post of IGP (Political &Communal), which was lying vacant due to the death of ShriS.Kumar in January, 2002. There were three SP rank officers outof which, Shri Sanjiv Bhatt was posted as DCI (Security), ShriP.B. Upadhyay as DCI (Political & Communal) and the third postwas DCI (Admn.) which was lying vacant. It has further come tolight that Shri G.C. Raiger was on casual leave from 26.02.2002to 28.02.2002 and was away to Rajasthan, but returned on27.02.2002 evening. Shri P.B. Upadyay, the then DCI (Communal)was on leave from 26.02.2002 onwards to arrange for sacredthread ceremony of his grandson fixed for 01.03.2002. However,Shri O.P. Mathur, IGP had called him up on 27.02.2002 afternoon,informed him about the Godhra incident and instructed to resumeduties immediately. Accordingly, Shri Upadyay had resumed dutieson 27.02.2002 evening. However, in his absence, his work was

being looked after by Shri Sanjiv Bhatt, who was the only otherSP rank officer in the State IB.

Shri G.C. Raiger has stated that on his return to Ahmedabadon 27-02-2002, he had come to know about the Godhra incidentand had telephonically informed DGP Shri K. Chakravarthi on27.02.2002 evening that he would cut short his leave and come toGandhinagar, if necessary, to which the DGP asked him to join on28.02.2002. Shri Raiger has denied having been informed by theDGP about the meeting called at CM’s residence on 27.02.2002late in the night. Shri Raiger denied having received any informationabout the meeting from either the State IB Control Room, StateControl Room or even Shri Sanjiv Bhatt, the then DCI (Security).Shri O.P. Mathur has also denied that he received any suchinformation about meeting called at CM’s residence on27.02.2002 night. Shri P.B. Upadhyay, the then DCI (Communal),who had resumed the duties on 27.02.2002 evening, and used tolook after Communal and Political section and was the concernedofficer to be associated with the said meeting, had also noinformation about the said meeting thereby suggesting that no onefrom the intelligence was required to attend the said meeting.Shri K. Chakravarthi, the then DGP has stated that he hadgone to studios of Door-Darshan, Ahmedabad City on 27-02-2002late in the evening, for the telecast of an appeal to the generalpublic to maintain communal harmony and peace, when he receiveda message from State Control Room that CM had called for ameeting at his residence at Gandhinagar around 2230 hrs. ShriChakravarthi has stated that he straight away went to CM’sresidence at Gandhinagar and reached there little earlier andwaited as CM had not arrived from Godhra by

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that time. According to Shri Charkravarti, Smt. Swarna KantaVarma, the then acting CS, Shri Ashok Narayan, the then ACS(Home), Shri P.C. Pande, the then CP, Ahmedabad City and ShriK. Nityanandam, the then Secretary (Home) arrived onlysubsequently. Shri Chakravarthi has categorically denied havinggiven any instructions to Shri Sanjiv-Bhatt, the then DCI (Security)

to attend the aforesaid meeting. He has further stated that ShriSanjiv Bhatt did not accompany him to CM’s residence in his carfrom DG’s office, as he (DGP) did not visit office at that time.He has also stated that in case Shri Raiger was available atAhmedabad, he would have given instructions to State ControlRoom to call him. According to Shri Chakravarthi even otherwise,Shri O.P. Mathur, the then IGP (Admn. & Sec.) was availableand could have been called to attend the meeting rather than askingShri Sanjiv Bhatt, junior officer of SP level to attend the saidmeeting.

Shri Sanjiv Bhatt, the then DCI (Security) has namedtwo AIOs namely Shri K.D. Panth and Shri Shailesh Raval,who used to accompany him to such meetings along withthe files. After Shri Sanjiv Bhatt’s further statement wasrecorded at his own request on 25-03-2011, he insisted thatShri K.D Panth, who was accompanying him and was waitingoutside, should also be examined. He Stressed that ShriPanth should be examined in his presence. However, ShriBhatt was informed that Shri K.D. Panth would be calledon date convenient to the IO and examined. Accordingly,Shri Panth was informed on 04-04-20 11, to attend SIT officeon 05-04-2011, for his examination.

Shri K.D. Panth in his examination has stated that hewas on casual leave on 27-02-2002. Further, he has deniedthat he followed Shri Sanjiv Bhatt, the then DCI (Security)to CM’s residence on 27-02-2002 night. However, he hasstated that Shri Sanjiv Bhatt had called him to his residenceon 24-03-2011 night and informed that he was going to makea statement before the SIT that he (K.D. Panth) had goneto attend meeting at CM’s residence on 27-02-2002 night,and that he (Panth) had been called at State IB office andbe ready with the files for the said meeting. Shri Sanjiv Bhattfurther informed Shri Panth that he should accompany himto SIT office on 25-03-2011, and make statement on theselines.

During his examination, Shri Panth further stated that hehas contacted Shri Sanjiv Bhatt over his landline telephoneno.27455117 from mobile no. [REDACTED] (belonging to one of his

friends) after he was called for examination scheduled for05-04-2011. Shri Sanjiv Bhatt called him at his residence on 04-04-2011 at 2030 hrs. At his residence, Shri Sanjiv Bhatt informedShri Panth that he has made statement to the SIT that he (Bhatt)had accompanied DGP. Shri K. Chakravarthi in his official car toCM’s office from DGP’s office on 27-02-2002 night and that he(Shri Panth) had followed him in his (Shri Sanjiv Bhatt’s) staff caralong with the files. Shri Sanjiv Bhatt asked Shri Panth to make astatement accordingly.Subsequently, Shri K.D. Panth lodged complaintagainst Shri Sanjiv Bhatt with the local police to the effectthat Shri Sanjiv Bhatt had influenced, detained, put severepressure and compelled him to sign an affidavit containingfalse/wrong and incorrect facts, in pursuance of which caseno. I CR No.149/2011 was registered u/s 189, 193, 195,341, 342 IPC with Ghatlodia police station, Ahmedabad City,Gujarat State. Shri Sanjiv Bhatt has since been arrested inthis case and the matter is under investigation. In view ofthis, no reliance can be placed upon the version of ShriSanjiv Bhatt.

This conduct of Shri Sanjiv Bhat, in arranging,prompting and controlling the witness to corroborate hisstatement is highly suspicious and undesirable. Shri SanjivBhatt also contacted Shri Shailesh Raval on 28-03-2011/29-03-2011, over mobile phone no.[REDACTED] of one ShriNJ. Chauhan, clerk in CM’s Security and informed himthat he would be called by SIT for his examination. ShriSanjiv Bhatt also asked Shri Shailesh Raval that he hadworked with him in Security Branch for long time and wasaware that he (Sanjiv Bhatt) used to attend meetings, towhich Shri Raval reacted by saying that he had accompaniedhim in Border Security Nodal Committee meetings, whichused to deal with the Border Security only. Shri Raval alsoinformed Shri Sanjiv Bhatt that he never worked in theCommunal Branch and was not aware of anything about it.Shri Sanjiv Bhatt thereafter disconnected the phone. ShriShailesh Raval, PI later sent complaint in writing to theChairman, SIT that he feared reprisal from Shri Sanjiv Bhattas he had refused to support the false claims of Shri Bhatt.

This is yet another attempt on the part of Shri Sanjiv Bhattto tutor witness to depose in particular manner so as tosupport the statement made by him, which further makeshis claim of having attended the meeting at CM’s residenceon 27-02-2002 false.

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Shri Tarachand B. Yadav, driver constable in SRP Group-XII, who had been dismissed from service on the charge of gettingemployment in Gujarat Police on the basis of false and forgedcertificate, has stated that he used to drive the staff car allotted toShri Sanjiv Bhatt, the then DCI (Security) during February-March,2002. However, he does not remember the registration number ofthe staff car. Shri Yadav could not give the name of PersonalSecurity Officer of Shri Sanjiv Bhatt, the then DCI (security).However, he has stated that he recollects that Shri Sanjiv Bhatt,the then DCI (Security) had gone to CM’s residence in threestar car with either DGP or some ADGP from Police Bhavan andthat he had followed him in his staff car, in which Shri K.D. Panth,the then AIO, State IB sat with some files. He has also statedthat Shri Sanjiv Bhatt, the then DCI (Security) returned after about25 minutes and he took him to Police Bhavan, where he workedtill midnight i.e. 0030 hrs and then drove him back to his residenceat Ahmedabad. Shri Yadav could not say as to whether Shri SanjivBhatt, the then DCI (Security) accompanied DGP or some ADGPrank officer. He has denied knowledge, as to whether Shri SanjivBhatt went inside CM’s office to attend the meeting or not, as hewas waiting outside. He has also stated that on 28-02-2002, ShriSanjiv Bhatt reached Police Bhavan at about 0900 hrs and workedin his office and did not go out to attend any meeting at CM’shouse. On 28-02-2002, he has stated that he started fromGandhinagar dropped Shri Sanjiv Bhatt at his residence at about1900 hrs. However, he could not recollect the details of the variousevents of 1[st], 2[nd] & 3[rd] March, 2002 due to passage of time.

The version of Shri Tarachand B. Yadav is contradicted byShri K.D. Panth, who has denied to have followed Shri SanjivBhatt in his staff car driven by Shri Tarachand Yadav. Besides

that he is an unreliable witness due to his background. He hasbeen dismissed from service due to his own misconduct. Moreover,he has admitted to have gone to the residence of Shri Sanjiv Bhatt,the then DCI (Security) on 17-04-2011 afternoon, for getting abriefing before making statement to SIT. The call details of hismobile phone clearly show that he was in touch with Shri SanjivBhatt, the then DCI (Security). Even when he was beinginterrogated in SIT office, Shri Sanjiv Bhatt was repeatedlycontacting him over his mobile phone to which he did not respond.In addition, the version of Shri Tarachand Yadav about themovements of Shri Sanjiv Bhatt on 28-02-2002, are proved to befalse in as much as Shri Sanjiv Bhatt did not come to Gandhinagarat 0900 hrs, as the call detail records of his official mobile phoneshow his location at Ahmedabad City till 1057 hrs. Shri TarachandYadav further contradicts the version of Shri Sanjiv Bhatt, whoclaims to have attended meeting on 28-02-2002 at 1030 hrs, atCM’s residence. The overall impression left in the matter is thatShri Sanjiv Bhatt has introduced him as false witness with aview to corroborate his own false version about having attendeda meeting at CM’s residence on 27-02-2002 night, whereas infact Shri Tarachand Yadav does not recollect anything about theevents of 27-02-2002 onwards. Moreover, he is motivatedwitness, who has got an axe to grind against the Govt. on accountof his dismissal from service. In view of this no reliance can beplaced upon his evidence.

During further investigation, PSOs of the then DGP ShriK. Chakravarthi were examined. PSI Dilip Jivaram Ahir andHead constable Dharampal Jagaram Yadav stated that they hadnever seen Shri Sanjiv Bhatt sitting in the vehicle along with DGP.

Shri G.C. Raiger, the then Addl. DC, (Int.) has stated thatShri Sanjiv Bhatt was never posted as Staff Officer to Addl. DG(Int.), because there is no post like that in the State IB. Further,Shri Sanjiv Bhatt could not have been Staff Officer to the DGP,as Late V.S. Shinde, Dy.SP was posted as Staff Officer to theDGP. Shri Raiger has further stated that Shri Sanjiv Bhatt used toaccompany him in the meetings called by the Chief Ministersometime, but was normally made to wait outside with the relevantfiles/information and did not join the meetings. Shri Raiger was

unable to recollect any meeting called by the Chief Minister, whichShri Sanjiv Bhatt attended along with him. Shri Raiger has furtherstated that on 28-02-2002, he did come to know about the meetingcalled by the Chief Minister at his residence on 27-02-2002, butShri Sanjiv Bhatt did not inform him of having attended the saidmeeting and also about its agenda or the matters discussed in thesaid meeting.

Shri R. B. Sreekumar formerly ADGP Intelligence, in hisinterview given to the Star Hindi News Channel at 12.35 hrs on22.04.2011 has stated that Shri Sanjiv Bhatt, DCI (Security) hadnever informed him about having attended meeting at CM’sresidence on 27.02.2002. He has further stated that at the time offiling an affidavit before Nanavati Shah Inquiry Commission, hehad asked all the officers of State IB to provide him with therelevant

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information and documents in respect of Godhra riots but ShriSanjiv Bhatt did not give him any information about the said meting.According to Shri Sreekumar, Shri Sanjiv Bhatt was handlingsecurity portfolio and communal portfolio was being looked afterby another officer. Shri Sreekumar has also stated in the interviewthat it was normal procedure that if junior officer had attendeda meeting on behalf of senior, he was required to submit reportto his superior and that Shri G.C. Raigar, the then ADGP (Int)should be asked about it. As already stated above, Shri Raigarhas denied having received any information/report from Shri SanjivBhatt in this regard.

The call detail records of the Govt. mobile phoneno.[REDACTED], allotted to Shri Sanjiv Bhatt show that on27-02- 2002, Shri Sanjiv Bhatt remained at Ahmedabad tillabout 1120 hrs and returned to Ahmedabad at 1925 hrs.He attended to various calls till 2040 hrs and thereafter,there is no record of any calls made or received by him.However, the call details record do not indicate that he wasgoing towards Gandhinagar on or at 2040 hrs. Further, on28-02-2002, as per call details the location of Shri Bhatt

was noticed at Ahmedabad till 10:57:43 hrs and again atAhmedabad at 2056 hrs. The claim of Shri Sanjiv Bhatt thathe had attended meeting at CM’s residence on 28-02-2002, at 1030 hrs is, therefore, proved to be false andincorrect. CM’s residence is at Gandhinagar, more than 25KMs from his residence at Memnagar, Ahmedabad, and itnormally takes 30 to 45 minutes to reach Gandhinagar. Hisfurther claim that he had seen Late Ashok Bhatt and ShriI.K. Jadeja, the then Ministers in the DGP’s office at about1100 hrs on 28-02-2002, is also belied from the call detailrecords in as much as the location of the mobile phone ofShri Sanjiv Bhatt was at Prerna Tower, Vastrapur-1,Ahmedabad, which happened to be at distance of 1.5 Kmsapproximately from his residence and by any stretch ofimagination Shri Bhatt could not have reached PoliceBhavan, Gandhinagar before 1130 hrs.

Shri Ashok Narayan, the then ACS (Home) has stated thata meeting was held by the Chief Minister in the morning of28-02-2002, which was attended by acting Chief Secretary, DGPand Addl. DG (Int.) and the matter relating to the calling of Armywas also discussed, but no decision was taken and it was decidedto watch the situation. He has categorically denied that Late AshokBhatt and Shri I.K. Jadeja, Ministers had attended the said meeting.The claim of Shri Sanjiv Bhatt that he had attended the said meetingat 1030 hrs at CM’s residence is proved to be false from thelocation of his mobile phone, which was at Prerna Tower,Vastrapur-I, Ahmedabad City at 10:57:43 hrs. Moreover, hiscontention that the aforesaid two Ministers were present in thesaid meeting is proved to be false from the statement of ShriAshok Narayan, the then ACS (Home), who has categoricallystated that they were not present in the said meeting.

As regards the alleged utterances made by the ChiefMinister in the meeting called on 27-02-2002 night at hisresidence, it may be mentioned here that Shri R.B.Sreekumar, the then Addl. DG (Int.) had claimed that ShriK.Chakravarthi, the then DGP had informed him on28-02-2002 that the Chief Minister had said in the meetingthat “KOMI HULLADO MA TAME POLICE BARABARI

KARO CHO, TAME BE HINDU NE PAKDO TO TAME BEMUSALMANO NE PAN PARDO CHO, HAVE EM NAHICHALE. HINDUONO GUSSO UTTARWA DO.” (Incommunal riots police takes action against Hindus andMuslims on one to one basis. This will not do now-allowHindus to give vent to their anger.) Shri Chakravarthi asdenied that he held any such talks with Shri R.B. Sreekumar.Even otherwise, the version of Shri R.B. Sreekumarbecomes hearsay. However, on the other hand Shri SanjivBhatt, who insists that he was in the said meeting, hasalleged that the Chief Minister had said “that for too longthe Gujarat Police had been following the principle ofbalancing the actions against the Hindus and Muslims whiledealing with the communal riots in Gujarat. This time thesituation warranted that the Muslims be taught lessonto ensurethat such incidents do not recur ever again. The Chief MinisterShri Narendra Modi expressed the view that the emotions wererunning very high amongst the Hindus and it was imperative thatthey be allowed to vent out their anger”. Assuming for the timebeing that the Chief Minister did say so, there is materialdifference between the two versions in as much as Shri SanjivBhatt has tried to improve his version by way of addition “that thistime the situation warranted, that the Muslims be taught lessonto ensure that such incidents do not recur ever again” Since thereis no independent corroboration of the version of either Shri R.B.Sreekumar or Shri Sanjiv Bhatt, no reliance can be placed oneither of them. It is relevant to mention here that the Ld. AmicusCuriae has agreed with the findings of SIT that the aforesaidstatement of Shri R.B. Sreekumar was not admissible in evidence.

Shri Sanjiv Bhatt has not been able to give anysatisfactory explanation that when he was in possession ofplethora of information and was an eyewitness to some ofthe important events,

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ABCDEF

response to the Govt. circular before any legal authority.He does not explain as to why he did not respond to publicnotice issued by SIT on 11-04-2008. However, on 21/22—03-2011, when he made statement, u/s 161 Cr.PC beforethe SIT, it is not understood as to by whom and how theclaimed secrecy was waived. His silence for period ofmore than nine years without any proper explanationappears to be suspicious and gives an impression that heis trying to manipulate the things to his personal advantageto settle his service matters.

During the course of further investigation complaint wasreceived from Shri Dharmesh P. Shukla, an accused in I CR No.67/2002 of Meghaninagar P.S. (Gulberg Society Case), who is facingtrial, in which he contended that there was no justification to recordthe statement of Shri Sanjiv Bhatt on account of the followingreasons:-

(i)That Shri Sanjiv Bhatt, IPS is known to be police officer ofdubious character facing several criminal cases of seriousnature and whenever he wants favour from the Govt., hecreates situation whereby the Govt. is compelled to helphim.

(ii) Thai Shri Sanjiv Bhatt, who had not even whispered aboutany such meeting in the past contemporaneously, surprisinglycame out with new theory that he was part of the meeting.

(iii) That this sudden stand taken by Shri Sanjiv Bhatt after nineyears of silence and his insistence that his statement beFrecorded only after an offence is registered, is at the behestof some person’s with vested interests.

(iv) That it is known to almost everyone in Gujarat that Shri SanjivBhatt is famous for his pressure tactics to get illegal favours.

Since the allegations leveled by the complainant wereserious, communication was sent to the Govt. to make availablethe details of all complaints/pending inquiries/prosecutions/departmental proceedings etc. against Shri Sanjiv Bhatt. detailedreply has been received from the Govt. of Gujarat, which showsthat Shri Sanjiv Bhatt has faced number of departmental inquiriesand he was granted three promotions to the rank of Junior

Administrative Grade, Selection Grade and DIG Grade on oneday i.e. 21-09-2007, after dropping of three departmental inquiriespending against him vide orders dated 06-08-2005, 03-09-2005 &24-07-2006. Shri Sanjiv Bhatt, who is eligible for the IGP gradehas not been promoted because of the departmental inquiries andcriminal cases pending against him. charge-sheet served uponhim on 29-12-2010, for irregularities in police recruitment underhis Chairmanship as SP, Banaskantha is still pending.

It has further come to light that while handling law andorder situation during his posting as ASP Jamnagar in the year1990, Shri Sanjiv Bhatt committed police atrocities on peacefuland innocent villagers belonging to particular community at aplace called Jam Jodhpur. In the beatings by police, one personwas killed. The victims included pregnant woman, two assistantengineers of Irrigation, department and one Circle officer ofRevenue Department. Shri Bhatt applied provisions of draconianlaw TADA against the innocent persons and arrested 140individuals under this Act. Due to public pressure, the Governmentgot an inquiry conducted from retired Judicial officer into theincident and Shri Bhatt was found guilty of (a) misuse of TADA(b) police atrocities and (c) unnecessary imposition of curfew for70 hours leading to hardship and harassment to the people.

It has also come to light that the criminal case relating todeath of person due to police atrocities in the incident wasinvestigated by State CID (Crime) against Shri Sanjiv Bhatt andothers. On completion of investigation, the I0 sought prosecutionsanction from the Government u/s 197 Cr.PC. which was declinedand therefore, closure report was filed in the competent court.However, the Court rejected the closure report on 20.12.1995and took cognizance. The State Government filed CriminalRevision Application in the Sessions Court, which was rejected.A case u/s 302,323,506(1), 114 of IPC has now been committedto Sessions Court, Jamnagar and is presently pending with theFast Track Court, Jam-khambhalia for framing of charges againstShri Sanjiv Bhatt and others. Significantly, Gujarat High Courtawarded compensation of Rs.1,50,000/- to the victim who haddied due to police atrocities in the above case.

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Another criminal complaint was filed against Shri SanjivBhatt, while he was posted as SP, Banaskantha District in 1996by Shri Sumersingh Rajpurohit, an Advoçate practicing at Pali,Rajasthan and criminal case was registered against Shri SanjivBhatt & others vide FIR No.403/96 dated 18-11-1996 u/s 120B,195, 196,342, 347,357,365, 388,458,482 IPC and Sec. 58 (1) & 58(2) of NDPS Act. On completion of the investigation, chargesheetwas filed against Shri Sanjiv Bhatt & others u/s 114, 120B, 323,342, 348, 357, 365,368, 388, 452, 201 & 482 IPC and Sec. 9, 17,18, 29, 58(1): & 58 (2) r/w Sec. 37 of NDPS Act in the court ofSpl. Judge, NDPS Act, Jodhpur, Rajasthan. The allegations in briefare that the complainant Shri Surnersingh Rajpurohit, Advocatewas occupying property as tenant in Pali (Rajasthan), whichwas owned by lady, who happened to be sister of Shri R.R.Jain, sitting Judge of Gujarat High Court. As per the said criminalcomplaint Shri Sanjiv Bhatt and his subordinate police officersplanted 1½ kg of Narcotic drug in one room in hotel at Palanpur,Gujarat, which was shown as occupied by the said complainantthough he was at Pali (Rajasthan) at that time. The said Advocatewas abducted at midnight, on the instructions of Shri Sanjiv Bhattby his subordinate police officers of Gujarat police, who wentfrom Palanpur, Gujarat to Pali (Rajasthan) to abduct him. Thesaid Advocate was brought to Palanpur, Gujarat and pressurizedby Shri Sanjiv Bhatt and his subordinate police officers to vacatethe said property by showing him arrested under NDPS offence.The said Advocate, while in the custody of Gujarat Police anddue to police torture, vacated the property and physical possessionof the property was handed over to the sister of Shri R.R. Jain,Judge of Gujarat High Court. Shri Sanjiv Bhatt and his subordinatepolice officers thereafter released Shri Surnersingh Rajpurohit on08-05-1996, by filing report u/s 169 Cr.PC. in which it wasmentioned that Shri Sumersingh could not be identified in the TestIdentification Parade. Quashing Petitions were filed in this matterby the accused persons in Rajasthan and Gujarat High Courts,but the same had been dismissed. The matter is now pendingbefore the Hon’ble Supreme Court of India.

In the meantime, on the complaint of Shri SidheshwarPuri, Secretary, Bar Association, Pali (Rajasthan), National

Human Rights Commission, taking very serious view ofthis false case under NDPS Act, vide its order dated15-09-2010 asked Govt. of Gujarat to pay sum of Rs. onelakh as monetary relief to Shri Sumersingh, Advocate Pali.

Significantly, Gujarat Vigilance Commission recommendedtwice on 15-07-2002 and 19-10-2006 that Shri Sanjiv Bhatt shouldbe placed under suspension for his professional misconducts, butthe Govt. of Gujarat did not do so.

In view of the aforesaid position, it can be inferredthat Shri Sanjiv Bhatt is facing lot of problems in servicematters and has got an axe to grind against the Govt. ofGujarat and, therefore, his evidence is ill motivated andcan not be relied upon.

Government of Gujarat vide its letter dated22-06-2011 forwarded set of emails exchanged betweenShri Sanjiv Bhatt, DIG, Gujarat Police and certain individualsduring April & May 2011. It was mentioned in the aboveletter that during the course of an inquiry instituted againstShri Sanjiv Bhatt, IPS by DG (Civil Defence), Gujaratregarding misuse of official resources, some revelationshave been made having direct bearing on the cases beingmonitored by SIT. The material forwarded by Govt. ofGujarat has been scrutinised and the salient features of thesame are summarized as below:-(1) That top Congress Leaders of Gujarat namely ShriShaktisinh Gohil, Leader of Opposition in GujaratLegislative Assembly and Shri Arjun Modhvadia,President of Gujarat Pradesh Congress are in constanttouch with Shri Sanjiv Bhatt, DIG. They are providinghim “Packages”, certain materials and also legalassistance Further, on 28-04-2011, Shri Sanjiv Bhattexchanged mails with Shri Shaktisinh Gohil and theformer gave points for arguments in Hon’ble SupremeCourt matter, allegations to be made against themembers of SIT and to establish that the burning of acoach of Sabarmati Express at Godhra Railway Stationwas not conspiracy. From the emails, it appears that

Shri Sanjiv Bhatt was holding personal meetings withsenior congress leaders as well. In one of the emails,he even mentions that he was “under exploited” bythe lawyer representing Congress before NanavatiCommission of Inquiry.

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(2) That Shri Sanjiv Bhatt had been persuading variousNGOs and other interested groups to influence the Ld.Amicus Curiae and the Hon’ble Supreme Court of Indiaby using “Media Card” and “Pressure Groups”.

(3) Shri Sanjiv Bhatt had been exchanging emails with oneNasir Chippa and in the email dated 11-05-2011 ShriBhatt has stated that he (Nasir Chippa), should try tomobilize support/pressure-groups in Delhi to influenceLd. Amicus Curiae Shri Raju Ramchandran in verysubtle manner. In another email dated 18-05-2011, ShriSanjiv Bhatt had requested Shri Nasir Chippa toinfluence Home Minister Shri P. Chidambaram throughpressure groups in U.S. It is believed that Shri NasirChippa has strong U.S. connections and his family staysthere.

(4) That Shri Sanjiv Bhatt arranged an appeal from ShriM. Hasan Jowher, who runs so called NGO titledSPRAT (Society for Promoting Rationality) to AmicusFCuriae on 13-05-2011, to call Shri Sanjiv Bhatt, IPS,Shri Rajnish Rai, IPS, Shri Satish Verma, IPS, ShriKuldeep Sharma, IPS and Shri Rahul Sharma, IPS (allpolice officers of Gujarat) to tender their version of theGujarat story. It may be mentioned here that the draftfor the said appeal was sent by Shri Sanjiv Bhatt himselfGto Shri Jowher. Further, copy of this mail wascirculated by Shri Sanjiv Bhatt to Ms. Shabnam Hasmi,Ms. Teesta Setalwad, Shri Himanshu Thakker,journalist, Shri Leo Saldana, Journalist, and Shri NasirChippa to encourage the persons/organisation to writeto Amicus Curiae on the similar lines so as to pressurizeHhim.

(5) In emails exchanged on June 1, 2011 between ShriSanjiv Bhatt and Shri M.H. Jowher, it was proposedthat PIL may be filed through lawyer named ShriK. Vakharia (a Sr. Advocate and Chairman of Legal Cellof Congress Party in Gujarat) in the Gujarat High Courtfor providing security to Shri Sanjiv Bhatt. It was alsoproposed that another complaint may be filed with theCommissioner of Police, Ahmedabad City against ShriNarendra Modi & others for his alleged involvementin 2002 riots which would be taken to appropriatejudicial forums in due course.

(6) That Ms. Teesta Setalwad, her lawyer Shri Mihir Desaiand Journalist Shri Manoj Mitta of Times of India werein constant touch with Shri Sanjiv Bhatt, IPS and wereinstrumental in arranging/drafting of the affidavit forfiling the same in Hon’ble Supreme Court. Vide emaildated 10-04-2011, Shri Bhatt solicited “Co-ordinates”from Ms. Teesta Setalwad, who had also arranged for ameeting with her lawyer Shri Mihir Desai at EllisbridgeGymkhana, Ahmedabad. Shri Sanjiv Bhatt sent the firstdraft of his proposed affidavit to Shri Manoj Mitta on13-04-2011, after meeting Shri Mihir Desai, Advocateand invited his suggestions. Shri Manoj Mitla advisedShri Sanjiv Bhatt to incorporate few more paragraphsdrafted by him which were incorporated by Shri SanjivBhatt in his final affidavit sent to Hon’ble Supreme Courtof India as suggested by Shri Mitta.(7) That Shri Sanjiv Bhatt was instrumental in arrangingan affidavit of one Shri Shubhranshu Chaudhary, ajournalist, to corroborate his claim that he had gone toattend meeting called by the Chief Minister at hisresidence in the night of 27-02-2002. Significantly, ShriBhatt had sent his mobile phone details of 27-02-2002to Shri Shubhranshu Chaudhary and had also suggestedthe probable timings of his meeting to Shri ShubhranshuChaudhary on 15-05-2011. Simultaneously, these detailswere sent to Ms. Teesta Setalwad on 26-05-2011, fordrafting the document, presumably the affidavit to be

Afiled by Shri Shubhranshu Chaudhary. Shri Sanjiv Bhattsent an email to Shri Shubhranshu Chaudhary that thesaid affidavit could be leaked out to the print mediawhich would force the Amicus Curiae and Hon’bleSupreme Court to take notice of the same. Shri SanjivBhatt also sent another email to Shri ShubhranshuBChaudhary, in which he has stated that they should playthe “Media Trick” so that affidavit is taken seriouslyby Amicus Curie and the Hon’ble Supreme Court

(8) That Shri Sanjiv Bhatt had been exchanging emails withone Leo Saldana, Narmada Bachao Andolan activist,Cwith view to mobilize public opinion in their favour.On 01-05-2011, Shri Sanjiv Bhatt had sent an email tothe latter to the effect that what they needed to do atthis stage was to create situation, where it would bedifficult for three judges Supreme Court Bench toDdisregard the shortcomings of SIT under stewardship

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Mr. ‘Raghavan’ and that the Pressure groups and opinionmakers in Delhi could be of great help in forwarding thecause. He has further stated in the mail that he was hopefulthat things would start turning around from the next hearing,if proper pressure was maintained at National level.

F(9) That Shri Sanjiv Bhatt was trying to contact Shri K.S.Subramanyam, retired IPS officer, through Shri NasirChippa to make an affidavit supporting his stand with aview to convince the Amicus Curiae arid through himthe Hon’ble Supreme Court of India that ShriK Chakravarthi former DGP of Gujarat, was liar.

(10)That Shri Sanjiv Bhatt had been taking advice of Ms.Teesta Setalwad in connection with his evidence beforeNanavati Commission of Inquiry. He had also been intouch with various journalists, NGOs and had beenforwarding his representations, applications and other

documents through email; whereas on the other sidehe had been claiming privilege that being anIntelligence Officer he was duty bound not to discloseanything unless, he was legally compelled to do so.

(11)That Shri Sanjiv Bhatt had been maintaining closecontact with Shri Rahul Sharma, DIG of Gujarat Policeand had been getting his mobile phone calls analysedwith view to ascertain his own movements of27-02-2002. This shows that Bhatt does not recollecthis movements on that day. He has also been trying toascertain the movements of Late Haren Pandya, thethen Minister of State for Revenue on 27-02-2002, witha view to introduce him as participant of the meetingof 27-02-2002 held at CMs residence, but could not doso, as Shri Rahul Sharma had informed him after theanalysis that there was absolutely no question of LateHaren Pandya being at Gandhinagar on 27-02-2002night.

From the study of emails, it appears that certain vestedinterests including Shri Sanjiv Bhatt, different NGOs andsome political leaders were trying to use Hon’ble SupremeCourt/SIT as forum for settling their scores. This wouldalso go to show that Shri Sanjiv Bhatt had been colludingwith the persons with vested interests to see that somekind of charge-sheet is filed against Shri Narendra Modiand others.

Observations made by Ld. Amicus Curiae:

“The other circumstances would also have to be taken intoaccount. There is nothing to show that CM intervened on 28-02-2002, when the riots were taking place to prevent the riots.The movement of Shri Modi and the instructions given by himon 28-02-2002, would have been decisive to prove that hehad taken all steps for the protection of the minorities, butthis evidence is not there. Neither CM nor his personal officialshave stated what he did on 28-02-2002. Neither the top policenor bureaucrats have spoken about any decisive action byCM”.

This one of the circumstances which indicates that the Hon’bleChief Minister had not taken enough steps to ensure that riotsin Ahmedabad City were immediately controlled by his directintervention.

Result of further investigation:

During further investigation Shri Sanjay Bhavsar, OSD toCM has stated that on 28-02-2002, the Chief Minister held ameeting in the morning concerning business in the Assembly.Further, at 0830 hrs the Chief Minister attended the Assemblysession, in which there was an obituary reference for those killedin Godhra incident. In the Assembly, the Chief Minister announcedthe Judicial Inquiry into the incident under the Commission ofInquiries Act instead of High Level Inquiry announced earlieron 27-02-2002, and the house was adjourned. The Chief Ministerheld meeting in the Assembly Secretariat with the acting ChiefSecretary, ACS (Home), DGP and Addl. DG (Int.) about theprevailing situation in the State. In this meeting, the matterrelating to the calling of Army was also discussed, but nodecision was taken and it was decided to watch the situation.Shri Ashok Narayan has categorically stated that Late AshokBhatt, the then Health Minister and Shri I.K. Jadeja, thethen Minister did not attend the said meeting. Though, ShriK. Chakravarthi, the then DGP has stated that ACS (Home) hadconveyed to him about the Government’s instructions to the effectthat the aforesaid two Ministers would

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sit in the two Control Rooms at Gandhinagar and AhmedabadCity to assist the police, yet Shri Ashok Narayan has stated thathe does not recollect any such instructions.

Shri Ashok Narayan has further stated that the Armyhad already been alerted on 27-02-2002, but inquiryconducted with the local Army authorities had revealed thatno force was available in Gujarat and that the same hadbeen deployed at the Borders. On 28-02-2002, another law& order review meeting was called by the Chief Ministerat his residence around 1300 hrs or so, in which the situation

was discussed and deployment of forces was reviewed. Inthis meeting, it was unanimously decided that Army shouldbe called to assist the civil administration to maintain law& order as the situation in the State was getting out ofcontrol. In view of this, the Chief Minister made an oralrequest to Shri L.K. Advani, the then Union Home Ministerover phone for deployment of Army in the State. As decidedin the meeting, fax message was sent by Shri K.Nityanandam, the then Secretary (Home) to the Secretary,Ministry of Defence, Govt. of India at 1430 hrs seekingdeployment of 10 columns of Army at Ahmedabad City andother affected places immediately by airlifting them. TheChief Minister had earlier given instructions for the safeescort of the Hajj Pilgrims returning to the State to avoidany untoward incident. The fax message in this regard wassent on 27-02-2002, to Addl. DG (Int.) with information tothe DGP by the Section Officer (Spl.), Home Department,Govt. of Gujarat.

The chief Minister along with his cabinet colleaguesand officials of the Home Department reached Circuit HouseAnnexe, Shahibaug, Ahmedabad City around 1600 hrs orso and held meeting with the officers of the HomeDepartment. Subsequently. the Chief Minister held pressconference at Circuit House Annexe, Shahibaug,Ahmedabad City between 1630 hrs and 1745 hrs. In thispress conference, CM announced that decision had beentaken by the State Govt. to call the Army. video CD of thepress conference has been produced by Shri SanjayBhavsar. At about 1800 hrs, the Chief Minister’s appeal topublic for keeping peace and to maintain law & order wasrecorded by the Dood-Darshan at Circuit House Annexe,Shahibaug, Ahmedabad City and the same was televised at1855 hrs before the regional news bulletin. The ChiefMinister held another law & order meeting at his residenceat 2030 hrs 28-02-2002, which was attended by the seniorofficers of the Home Department and the police. The ChiefMinister met the Union Defence Minister Shri GeorgeFernandes at his residence at 2230 hours on 28.02.2002,in the presence of concerned officers, in which the prevalent

law and order situation was reviewed and securityarrangements discussed. This is confirmed from the recordsof the Protocol Department as well as the Police ControlRoom messages.

According to Shri Sanjay Bhavsar, OSD to CM, theChief Minister met Shri George Fernandes, the then UnionDefence Minister on 01-03-2002 at about 0830 hrs at hisresidence in the presence of Govt. Officials and ArmyOfficers. As per the press release issued by the GujaratInformation Bureau on 01-03-2002, Shri Gordhan Zadafia,the then MoS (Home), Shri G. Subba Rao, the then ChiefSecretary, Shri Ashok Narayan, the then ACS (Home) andother senior police officers including Shri K. Chakravarthi,the then DGP, Shri K. Nityanandam, the then Secretary(Home) and senior Army and Air-force officer attended thesaid meeting. In this meeting, CM requested for deploymentof more Para Military Forces (PMFs) and BSF, to whichShri George Fernandes agreed. CM also apprised theDefence Minister about the allotment of 5 Coys of PMFsto the State of Gujarat. The Chief Minister met the H.E.Governor of Gujarat at 0930 hrs at Rajbhavan and apprisedhim about the latest law & order situation in Gujarat andalso about the security arrangements and bandobast madein the State. During 1000 hrs to 1300 hrs, CM had attendedto the Govt. work and gave directions to the Administrativefunctionaries to take preventive actions to ensure that thedisturbed situation did not spread. The Chief Minister alsomet the Congress delegation, informed them about theaction taken by the Govt, and advised them not to lodgeany protest in this regards. The Chief Minister also gavedirections for the safety and security of the Haj Pilgrimsreturning to Gujarat. CM also discussed the cash doles andabout the other help to be given to the riot victims. Healso discussed the packages for the relief camps started byvarious NGOs and gave directions for other essentialservices to be provided to riot affected victims. He alsogave directions to the Hospitals in the State to makeavailable uninterrupted medical services to the affectedpersons and other citizens. CM held law & order review

meeting at 1300 hrs. Another law & order review meetingwas held by CM at 1500 hrs at his residence. At 1630 hrs,CM held press conference at Circuit House Annexe,Shahibaug Ahmedabad City. In this press conference, CMinformed the press that 13 columns of Army had beendeployed to assist the State Civil Administration and thatshoot at sight orders to maintain law & order situation hadbeen issued. CM also briefed the press about his meetingwith the Union Defence Minister and also about thedeployment of Army. He also gave the

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details of various riot incidents and also about thedeployment of CPMFs in the Stare. CM also informed thepress about the requisitioning of the additional securityforces from the neighbouring States and appealed to themedia to keep restraint. CM held another law & orderreview meeting at 2030 hrs at his residence.

As per the request made by the Govt. of Gujarat, theArmy personnel were airlifted from the border and theystarted arriving at Ahmedabad City in the night intervening28-02-2002/01-03-2002. Shri P.S Shah, the then Addl.Secretary (L&O) has stated that on receipt of intimationfrom the Army authorities, programme indicating thearrival of the Army and their logistic requirements was sentto the CsP and DMs, Ahmedabad City, Baroda City andRajkot City by him on 28-02-2002 itself. However, videletter dated 01-03-2002, revised deployment scheme ofArmy with 3 columns for Ahmedabad City and 2 columnseach for Baroda City and Godhra and 1 column for RajkotCity was sent by him. Shri P.S. Shah has also stated thatShri Gurdayal Singh, the then Addl. DG had submitted areport to ACS (Home) on 02-03-2002, vide which heinformed that 3 Battalions of Infantry Division reachedAhmedabad City on 01-03-2002 and that 1 Battalionstrength having 3 columns was deployea in Bapunagar,Gomtipur, Raikhad and Amraiwadi at Ahmedabad City. He

further informed that the IInd battalion was deployed inDariyapur, Shah-Alam, Danilimda, Khadia, Kalupur, Shahpurand Madhupura P.S areas. Shri Gurdayal Singh had alsoinformed that 2 companies of the IIIrd battalion weredeployed in Juhapura, Vejalpur and Paldi areas and onecompany kept in reserve.

Shri P.S. Shah has further stated that on 01-03-2002,another crash wireless message was sent by Shri J.R.Rajput, the then Under Secretary, Home Department withthe approval of the ACS (Home) to all CsP, DMs, SsP, IGsand Western Railway SP, Baroda, in which it was emphasisedthat in view of the prevalent surcharged and tenseatmosphere, directions given by the Home Department timeand again for maintenance of public order and peace shouldbe implemented. In this message, several other instructionsincluding implementation of communal riots scheme,guidelines given by the Govt. of India to promote communalharmony, effective actions against unruly mobs and unlawfulassembly and meetings of Peace Committee etc. were alsogiven.

Shri P.S. Shah, the then Addl. Secretary (L&O) hasalso stated that on 01-03-2002, DGP felt that the resourcesavailable with him were insufficient to deal with the law &order situation in the Gujarat and as such with the approvalof ACS (Home), 3 letters were sent by Shri K. Nityanandam,the then Secretary (Home) to Chief Secretary, MadhyaPradesh, Rajasthan and Maharasthra, through which thesestates were requested to spare 10 companies each of theirArmed police to help the Gujarat police in handling the law& order situation. reply dated 01-03-2002 was receivedfrom Shri R.K. Nair, Addl. Chief Secretary, Govt. ofRajasthan, in which he regretted to spare any police forcefor duties in Gujarat for the time being. However, 2 Coysof SRP were provided by the Govt. of Maharasthra on03-03-2002, and the same were deployed in Surat.

Shri G. Subba Rao, the then Chief Secretary has statedthat he had gone abroad and was recalled on 01-03-2002.,He has further stated that, he sent wireless message to

all CsP, DMs, Range IGs and SsP to the effect that DistrictAdministration and police had to act in decisive, promptand effective Manner to bring the situation under controland that they should no hesitate to use whatever force wasnecessary to bring the situation under control. The ChiefSecretary also emphasised in this message that when livesand properties were threatened in communal situation,necessary, force including firing should to be resorted tobring the situation under control and if the situationdeteriorated beyond point besides imposing curfew,“shoot at sight” orders also be issued to prevent gatheringof unlawful mobs at public places. The jurisdictional officerswere asked to acknowledge this communication and ensurethat no major incident took place under their jurisdiction.

Shri Sanjay Bhavsar, OSD to CM has stated that on02-03-2002, the Chief Minister held another meeting withShri George Fernandes, the then Union Defence Ministerat 0830 hrs at his residence. During 0930 hrs to 1230 hrs,CM met the H.E. the Governor of Gujarat and apprisedhim of the latest situation and the security arrangementsand bandobast made by the administration. CM furtherdiscussed the packages for the relief camps started by thevarious NGOs. CM also discussed the cash doles and theother help to be given to the riot. victims. The ChiefMinister also gave instructions that SSC/HSC boardexamination be held as scheduled in peaceful atmosphereand also to ensure the safely of students. Two Law & orderreview meetings were held, by the Chief Minister at hisresidence at 1300 hrs and 1500 hrs respectively. CM held

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meeting of the officials of the Home Department at 1600hrs at Circuit House Annexe, Shahibaug, Ahmedabad City.CM also held press conference at 1630 hrs in CircuitHouse Annexe, Shahibaug, Ahmedabad City, during whicha detailed press release was issued by the Govt. of Gujarat.CM held an all party meet at 1800 hrs, in which the congreeleaders did not participate. Another law & order review

meeting was held by the Chief Minister at his residence at2030 hrs.

According to Shri P.S. Shah, the then Addl. Secretary(L&O) some instances of attack on life and property invillages had been reported on 02-03-2002. He has statedthat in view of violence in rural areas he sent crashwireless message to all CsP, DMs and SsP including SP,Western Railway, Baroda to the effect that sufficient policepatrolling be organised to cover villages, where particularcommunity may be in smaller number and steps be takento prevent the entry of antisocial elements from out sidethe State or from large cities into rural areas throughnakabandi. The jurisdictional officers were asked toconvene peace committee meeting at Taluka level tosensitise social leaders in rural areas for the need to keeppeace. They were also instructed to keep telephoniccontact with the villagers through the concerned policestation in rural areas to obtain information and act quickly.Directions were also issued to these officers to deploy theavailable forces suitably to meet the developing situationand also to maintain sufficient mobility.Shri Ashok Narayan, the then ACS (Home) has alsostated that he sent wireless message on 02-03-2002, inwhich it was emphasised upon the jurisdictional officers thatapart from their duties of maintenance of law & order. theprocess of healing, building confidence amongst the people,diffusing tension and promoting communal harmony wasalso required to be geared up immediately by the DistrictAdministration and to achieve this object the District/CityEkta Committee, Peace Committees and MohallaCommittees should be activated and arrangements madeto hold these meetings. The jurisdictional officers were alsoasked to involve the prominent members of all thecommunities, social leaders and NGOs in this process andto report compliance by 04-03-2002.

As per Shri Sanjay Bhavsar, the Chief Minister leftfor Ahmedabad airport on 03-03-2002 at 0900 hrs, andreceived the then Union Home Minister Shri L.K. Advani

at 1050 hrs. From airport the Chief Minister accompaniedthe Union Home Minister at 1145 hrs to some of the riotaffected areas like Delhi Darwaja, Idgah area and then wentto Civil Hospital to see the riot victims. At 1215 hrs, CMaccompanied the Union Home Minister to Godhra byhelicopter and reached Godhra at 1300 hrs. At Godhra, the.Union Home Minister visited Godhra Railway Station andinspected the scene of occurrence. Later, he visited CivilHospital, Godhra and met victims of the train incident. ShriAdvani left Godhra at 1345 hrs by helicopter and reachedAhmedabad at 1430 hrs. Shri L.K. Advani held law &order review meeting with the officials of HomeDepartment as well as the police department at 1600 hrs,which was attended by the Chief Minister, MoS (Home),Chief Secretary, ACS (Home), DGP and senior officers ofHome, Police and Revenue department. The Union HomeMinister asked the State Govt. to trace the culpritsresponsible for Godhra incident and get them punished totake measures to restore peace, to prevent violence andthat, strict action be taken against those who indulged inviolence. Shri Advani reviewed the measures taken by theState Govt. to restore law & order in the State. In thismeeting the Chief Minister gave directions to organisejoint peace marches. Thereafter, Shri Advani held pressconference at Circuit House Annexe, Shahibaug,Ahmedabad City at 1700 hrs. Shri L.K Advani went toGandhinagar accompanied by the Chief Minister and metthe then H.E. the Governor of Gujarat at 1830 hrs. At 1900hrs Shri L.K. Advani met the Ministers of Gujarat Govt. atCM’s residence. Shri L.K. Advani thereafter, left forHyderabad. Later, the Chief Minister held law & orderreview meeting at his residence at about 2030 hrs.

Shri Sanjay Bhavsar, OSD to CM has further statedthat on 04-03-2002, the Chief Minister met the H.E.Governor of Gujarat at latter’s residence at 0930 hrs andapprised him of the latest law & order situation andbandobast made in Ahmedabad City. Between 1030 hrs and1300 hrs, CM held law & order review meeting and alsoheld discussion with the officials of Home, Police and Legal

department for the appointment of Judicial InquiryCommission. The chief Minister further held discussionabout the Panchayat elections and local bodies elections,which were due in March/April 2002. The Chief Ministeralso held discussions for ex-gratia payment to the riotaffected persons, NGO relief camps, compensation fordestruction of the properties during riots with theconcerned officers. The Chief Minister also discussed theissues relating to Gram Panchayat and local bodies’ electionsand SSC/HSC exams. Shri Advani came

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to Bhavnagar directly on 04-03-2002. In view of this, theChief Minister left for airport at 1300 hrs and then left forBhavnagar by air at 1330 hrs. The Chief Minister reachedBhavnagar at 1410 hrs and met Shri L.K. Advani at 1420hrs. At Bhavnagar, they had round of riot affected areaslike Ranika, Ghogha Darwaja and S.T. Station Road. Theyalso visited Akwada Madressa, where 400-500 Muslimstudents were saved on account of timely action by thepolice, held law & order review meeting and met therepresentatives of different organisations including minoritydelegations and political leaders. They left for Rajkot at1600 hrs and reached there at 1630 hrs. At Rajkot, CM,the then Union Home Minister and others visited GondalRoad, Lodhawad chawk. Parevadi Chawk and Lati plotareas. It may be mentioned here that during the earlierriots in Gujarat, the Kutch and Saurasthra region werepeaceful, but in the year 2002 some signs of riots werenoticed in these areas, as result of which CM and otherleaders visited these areas so that the riots did not spreadthere. law & order meeting was also held with the policeofficers at Rajkot. At Bhavnagar and Rajkot, high levelmeetings were held by CM and other leaders, in which CMdirected to launch combing operations to track down theantisocial elements and recover lethal weapons andexplosives. CM left Rajkot at 1800 hrs and reached hisresidence at Gandhinagar at 1915 hrs. At 2030 hrs, CM

held meeting with the Ministers of his Government. CMhas also instructed on 04-03-2002, that “SHANTIKOOCH” should be held in villages and as such wirelessmessage to this effect sent by ACS (Home) to all the DMs,CsP, SsP etc on the same day.

As per Shri Ashok Narayan, the then ACS (Home),he sent another message dated 04-03-2002, to all CsP, SsP,DMs, in which it was emphasised that rumour mongersshould be dealt with in an exemplary manner and that citypeace committees be activated to assist in restoring peace.He also pointed out that the Hon’ble Chief Minister hadinstructed that “Shanti-Kooch” be held in villages afterlooking into the local situation. It was also mentioned inthis message that all class-I & II officers of Revenue andPanchayat should be instructed to visit the villages at leasttwice week and that the Talatis and primary schoolteachers should be instructed to stay in their respectiveplaces of duties and keep in touch with the village leadersand sensitise them about the need to keep peace in theirvillages.

Shri P.S. Shah, the then Addl. Secretary (L & O) hasstated that he has sent crash wireless message on04-03-2002, all CsP, DMs, SsP to convene the peacecommittee meetings immediately, in which the participationof individuals from every community be ensured and alsoto hold peace marches in all the villages viewing the localsituation. The jurisdictional officers were also requestedto involve revenue/ development machinery as per theinstructions contained in the Home Department crashmessage dated 02-03-2002 and document the same withthe help of either videography or photography and sendthe same to the Home Departmeint.

Shri P.S. Shah, the then Addl. Secretary (L&O) hasalso stated that he sent another fax message dated04-03-2002 to all CsP, DMs and DDOs, in which he pointedout about the receipt of disturbing reports of attempts todisturb the traditional peace and amity in the villages. Itwas highlighted that there was failure of the society

represented by village panchayat and the village peacecommittees in meeting out this responsibility. He alsoimpressed upon the aforesaid officers to take action u/s 50of the Bombay Police Act, which provides for imposition ofpunitive fines and also about the temporary withdrawal ofdevelopmental grants and facilities, if any village was bentupon indulging in senseless and sectarian violence againstits own members or neighboring villages.

On 04-03-2002, letter dated 02-03-2002 wasreceived from Dy. Secretary, Information and Broadcastingdepartment, Govt. of Gujarat by Shri Ashok Narayan, inwhich it was pointed out by I & deptt. that in view of theprevailing situation in the Gujarat State, if any cable networkexhibits programme/news, which might incite violence ormight create law & order problems, strict action should betaken immediately against them under the provisions orCable Televisions Networks Regulation Act 1995 & rulesthereunder. On receipt of the same, DO letter was sentby Shri Ashok Narayan on 05-03-2002, to ShriK. Chakravarthi, the then DGP, to ensure strict andeffective implementation of the revised guidelines issuedby the Govt. of India for promotion of communal harmony.DGP was further advised to take action against thoseelements, who had demolished/damaged certain places ofworship and also against those who had converted some ofthe religious places of worship of religious denominationinto places of worship of different religious denominationunder the provisions of Places of Worship (SpecialProvision) Act 1991. Besides that DGP was advised thatreporters, editors, printers, publishers and owners of themedia must be advised to discourage distorted reporting /telecasting and action

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u/s 153 (A) & 505 (2) IPC should be taken against writers/publishers of the objectionable of inflammatory materialpromoting or attempting to promote disharmony or feelingof enmity, hatred or ill will between different religious

communities/groups. DGP was also advised that in orderto maintain sanctity of religious places and prevent theirmisuse for criminal, subversive or communal activities theprovisions of Religious Institution (Prevention of Misuse)Act be invoked, as it would help in maintenance of peace,order and transquillity.

Shri Sanjay Bhavsar has also stated that on05-03-2002, CM held law & order review meeting at hisresidence. The Chief Minister also addressed High Levelmeeting attended by Chief Secretary, Revenue Secretary,Health Secretary, Secretary (R&B) and HealthCommissioner and gave specific instructions to them tovisit 18 relief camps in different areas. CM also instructedthe Collector & District Magistrate, Ahmedabad to makearrangements for the distribution of food and essentialcommodities with the help of commercial organizations. At1430 hrs, CM left for Ahmedabad and held meeting withprominent citizens at Gujarat Chamber of Commerce,Ahmedabad. The Chief Minister made an appeal to thetrade and industry, heads of religious organisations andintellectuals to help revive and restore economic activities,which evoked encouraging response from all quarters. CMcategorically said that the Govt. would not compromise withlaw breaking antisocial elements and that, the Govt. wascommitted to re-establish the sense of mutual trust andconfidence. The Chief Minister out rightly condemned thelaw breakers and subsequent violent incidents. At about.1630 hrs, CM visited C.G. Road at 1700 hrs, Mahajan Vando,Jamalpur at 1730 hrs, Shethia building char rasta and RevadiBazar, Relief Raod at 1800 hrs, Delhi Darwaja at 1830 hrs,Gulberg Society at 1900 hrs and Naroda Patiya at 1930 hrs.CM was accompanied by Late Ashok Bhatt, the then HealthMinister, Shri Kaushikbhai Patel, the then Energy Minister,Smt. Anandiben Patel, the then Education Minister, LateHaren Pandya, the then MoS Revenue Minister, ShriBharatbhai Pandya, the then sitting MLA, Smt. MayabenKodnani, the then MLA and Shri P.C. Pande, the then CP.Ahmedabad City.

Shri Ashok Narayan, the then ACS (Home) has furtherstated that he sent confidential wireless message on05-03-2002, to all CsP, Range IGPs, DMs and all SsP thatthe surcharged communal atmosphere in parts of Gujaratwas returning to normal and that measures suggested bythe Govt. of India in the revised guidelines for communalharmony should be implemented with view to gear up theprocess of restoration of normalcy and promoting communalharmony.

On 05-03-2002, Shri Ashok Narayan has also statedthat he sent DO letter to Shri K. Chakravarthi, the thenDGP that the law & order situation was being brought undercontrol and the State was gradually returning to normal withthe curfew being lifted in phased manner from the placeswhere the situation was improving, but it was due to thepresence of Army and CPMFs, which was only temporarymeasure and reinforcement to the State Police resourcesshould be done. It was further pointed out that the anti-social elements night be awaiting the withdrawal of theseforces and might attempt to create disturbances again andthat the possibility of sporadic incidents, revenge or anorganised backlash from either community or attacks onthe law enforcing agencies could not be ruled out. It wasalso emphasized upon the DGP that the respite providedby the temporary assistance of Army and CPMEs shouldbe used to strengthen, their own control over the law &order situation to meet these possible Challenges. DGPwas also asked to chalk out suitable strategy in this regard.On 05-03-2002 itself, representation dated 04-03-2002was received from Kadi Muslim Samaj, Kadi, Mehsana toprovide protection to them his representation wasforwarded by him to the DGP vide his DO letter dated 05-03-2002 to provide all necessary protection to the Muslimsamaj as soon as possible.On 06-03-2002, Shri P.S. Shah, the then Addl.Secretary (L&O) sent another wireless message to CsP,DMs and all SsP to make necessary, bandobast, giveprotection to the Haj Yatris and to ensure that they reach

safely to their residences. On the same day, he sent anothermessage to all the aforesaid officials to review the localposition and made adequate bandobast at various mosquesfor thwarting any act of provocation and also for theprotection of the mosques on 08-03-2002, when largenumber of Muslim were likely to assemble in the mosquefor Namaz.

On 06-03-2002, representation was received by ShriAshok Narayan, the then ACS (Home) from the residentsof Jawahar Chawk, Raikhad, Ahmedabad City for givingadequate police protection to them, which was immediatelyforwarded by him to Shri K. Chakravarthi, the then DGPfor further necessary action. On 06-03-2002 itself, DOletter was received by ACS

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(Home) from Shri Arvind Shukla, PS to the Governor ofGujarat forwarding there with representation from DaudiVohra Community of Garbada taluka, Dahod Distt. with arequest to continue the BSF protection. This representationfrom Daudi Vohra Community was forwarded by him to DGPShri K. Chakravarthi immediately that the H.E. Governorof Gujarat had desired that in Garbada, Gangardi andJesawada and surrounding rural area of Garbada taluka inDistt. Dahod, the BSF baridobast should be continued, andan intensive police patrolling should be done. On 06-03-2002, another representation was also received by ACS(Home) from Ahmedabad-Mehsana High Way HotelAssociation requesting financial assistance for the damagedone to the hotels during the riots in Gujarat and the samewas forwarded by him to Shri C.K Koshi, Principal Secretary,Revenue Department, Gandhinagar for further necessaryaction.

On 06-03-2002, DO letter was sent by Shri AshokNarayan, the then ACS (Home) to DCP stating that as theviolence in the State continues, it was necessary that thepolice should strictly adhere to the principles of rule of law,

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take effective action to prevent further violence and dealruthlessly with all the violators. He also suggested thateffective but controlled use of force be resorted to dealfirmly with violators, to arrest all ring leaders and peoplewhose names figured in the FIR, to conduct combingoperations to recover arms/explosives and other materialused or likely to be used in the present situation and alsoto recover all stolen/looted property. DGP was alsorequested to initiate action immediately so that supremacyof law could be established.

On 06-03-2002, some members of the press hadmentioned to Shri Ashok Narayan that though the names ofsome of the VHP and Bajrang Dal leaders figured in theFIR No. 98/2002 of Naroda P.S. against Shri Kishan Korani& others and in Gulberg case FIR against Shri Dipak Patelyet they had not been arrested. This information wasimmediately passed on by ACS (Home) to the DGP forsuitable action in the matter.

Shri P.S. Shah, the then Addl. Secretary (L&O) hasfurther stated that on 07-03-2002, he sent another wirelessmessage to CP, Range IGPs, DMs and all SsP to exercisestrict vigil at temples on Maha-Shivratri festival to becelebrated on 12-03-2002, in view of the highly surchargedand tense situation prevailing on the communal front. Itwas highlighted that antisocial and hardcore communalminded elements bent upon to jeopardise communalharmony should be dealt with firmly and promptly. It wasalso emphasised that peace and communal harmony mustbe maintained at all costs. Further instructions were givenby him to all the jurisdictional officers to provide adequatesecurity to Shiva temples to avoid any untoward incident.These instructions were given in the light of the fact thatsymbolic pooja at Ayodhya was scheduled to be held on15-03-2002.Shri Ashok Narayan has further stated that on07-03-2002, he sent DO letter to Shri K. Chakravarthi,the then DGP, in which he referred to the earlier discussionsheld with him during which it was felt that there was need

to overhaul the intelligence set up and also to increase thelump sum amounts available to the field officers andrequested him to send proposal in this regard. He alsopointed out that during the discussions with the ChiefMinister, he had pointed out that there was necessity todo very effective combing and to identify areas to prevertfurther incidents of terrorism and violence.

On 07-03-2002, note was sent to Shri Ashok Narayanby the Chief Secretary that tough law & order situation wasfast returning normal, it was necessary to intensify theefforts by taking effective steps regarding rounding up ofall known anti-social elements and also to conduct combingoperations for detection and seizure of illegal arms andammunition. These instructions were communicated to DGPon 07-03-2002 itself by Shri Ashok Narayan through DOletter requesting him to take effective steps on these lines.On 07-03-2002 itself, representation was received fromShri Farook Sheikh, MLA, Kalupur, Ahmedabad Cityintimating that he and his family had been receivingtelephonic threats on their life for long time and armedpolice protection be provided to him. This representationof Shri Farook Sheikh MLA, Kalupur was forwarded to DGPon 07-03-2002, by Shri Ashok Narayan with copy to CP,Ahmedabad City.

Shri P.S. Shah, the then Addl. Secretary (L&O) statedthat he sent wireless message on 13-03-2002, to thejurisdictional officers to monitor the situation/developmentsclosely for maintenance of law & order in their respectivejurisdiction in the light of Hon’ble Supreme Court’s orderin Writ Petition filed by Mohd. Aslam Vs. Union of India tomaintain status-quo and that Ram-Sevaks should not beallowed to perform symbolic pooja.

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Shri P.S. Shah, the then Addl, Secretary (L&O) hasalso stated that on 14-03-2002, wireless message was sentby him to all CsP, Range IGPs, DMs and all SsP that in the

light of order passed by the Hon’ble Supreme Court of Indiain Writ Petition filed by Aslam Bhura Vs. Union of Indiaon 13-03-2002, either symbolic or actual Bhumi-Poojashould not be permitted to take place. Further, as astatement had been made by Secretary, VHP to the effectthat demonstrations would be held from 14-03-2002 onwardsall over the country, it was likely to lead to the communalclashes. All the aforesaid jurisdictional officers werespecifically directed to strengthen security arrangementsat religious places, deal firmly with anti-social, disgruntledand hardcore communal minded element, implementprohibitory orders, strictly set up pickets at all sensitivepoints, to pick up rumour mongers, to intensity foot andmobile patrolling, to maintain communal harmony and tokeep close watch over the situation.

On 14-03-2002, Shri Ashok Narayan receivedinformation about the protection sought by some Muslimfamilies residing in Baroda City. These families had askedfor RAF deployment between 14-03-2002 to 16-03-2002for their protection, in view of the VHP programme fixedfor 15-03-2002. This information was passed on by him tothe DGP, Collector & CP, Baroda City through separateDO letters dated 14-03-2002 with request to look intothe security of these specific areas.

On 15-03-2002, Shri Ashok Narayan had written DOletter to Shri K. Chakrayarthi, the then DGP in the contextof several discussions with the Chief Secretary regardingthe need to activate the intelligence machinery in theprevailing situation. It was further mentioned that CM hadalready given several suggestions to facilitate unearthingof antisocial and antinational links. He also, mentioned thatin the prevailing situation of general tension, it was evenmore necessary to take concrete steps in order to preventworsening of the situation. Shri Ashok Narayan hadsuggested to DCP to constitute task force involving ShriR.C. Mehta, Shri R.B. Sreekumar and Shri G.C. Raiger towork out suitable plan within about 3 days.

Shri P.S. Shah, the then Addl. Secretary (L&O) hasfurther stated that on 21-03-2002, he sent crash wirelessto all CsP, Range IGPs, DMs and all SsP, in which he hademphasised the need to keep close watch over communalsituation in the light of the festivals of Mohharram, Holi/Dhuleti and Good Friday to be celebrated on 25-03-2002,28-03-2002 and 29-03-2002 respectively by differentcommunities of the society. In the light of highly surchargedand tense atmosphere prevailing in the State, it was furtheremphasised upon the jurisdictional officers that HSC/SSCexamination were also being held in all over the state(except 5 cities) and therefore, special attention should bepaid to the sensitive areas and places, which had recentlywitnesses communal violence. All the jurisdictional officerswere also advised to make foolproof bandobast on the eveof Mohharram i.e. Qattal ki rat and during Taziaprocessions. Instructions were also given to all theaforesaid officers to remain present at their headquartersand closely supervise all the arrangements for maintenanceof public order and communal harmony under theirjurisdiction.

Shri Ashok Narayan, the then ACS (Home), Shri P.S.Shah, the then Addl. Secretary (L&O) and ShriK. Chakravarthi, the then DGP have stated that in additionto the aforesaid references, number of complaints/representations were received personally/telephonically, forwhich immediate, necessary action was taken by them overtelephone, for which no records are available. Accordingto them, after 72 hours, the situation was gradually comingunder control though even subsequently stray incidents ofviolence were reported from different parts of the State fora few days. However, the Panchayat elections were held inMarch-April, 2002 peacefully, and the Haj-Pilgrims who hadreturned from pilgrimage were safely escorted to theirrespective places without any untoward incident. The factthat the festivals like Maha-Shivratri, Holi, Good Fridayand the religious function of Mohharram, as well as SSCI-/HSC examination passed off peacefully in March, 2002

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would go to show that the State was returning to normalcyfast.

Keeping in view the aforesaid facts, it is establishedthat the Godhra train burning incident took place on27-02-2002 between 07.47 and 08.20 hrs. There is evidenceavailable on record to show that immediately the Statemachinery, was put on the high alert and this wascommunicated to all District authorities and Commissionersof Police. The first alert message of 27-02-2002 from theHome Department covered the need to take precautionarymeasures including adequate police bandobast andpreventive measures including issuance of prohibitory

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orders depending upon the local situation. It was instructedthat antisocial and hardcore communal elements should bedealt with family. It was also impressed upon the districtadministration that when the dead bodies arrive in therespective native places, there was likelihood ofheightened communal tension and hence bandobast shouldbe arranged, especially for the funeral procession. AllCommissioners of Police DMs and SsP should remain inHQ and closely monitor the situation.

This alert message of 27-02-2002 was followed byanother message from Home Department on 28-02-2002,to all concerned to round-up anti-social and knowncommunal elements under the preventive laws. It wasfurther instructed that mobile patrolling should beintensified and adequate protection should also be providedat places of worship and that effective action should be takento disperse unruly mob, unlawful assemblies, usingwhatever force necessary. It was also made clear that anti-social elements indulging in violence and bent uponjeopardizing communal harmony must be controlled firmly.Another message dated 28-02-2002, impressed upon allconcerned officers to maintain adequate bandobast for01-03-2002, being Friday and the day of Namaz for the

Muslims. Adequate bandobast was directed to be providedto all sensitive areas and curfew was ordered to be strictlyenforced. On 28-02-2002, another message was sent to theAddl. DG (Int.) to maintain adequate bandobast for thesecurity of returning Haj Pilgrims at their point of entry. Itappears that realising the seriousness of the situation, theChief Minister took decision on 28-02-2002, to call theArmy to assist the civil administration in maintenance oflaw & order in the State. Accordingly, the Chief Ministerspoke to the Union Home Minister on 28-02-2002 around1400 hrs and orally requested him to depute the Army tocontrol the law & order situation. This was followed by afax message sent by Shri K. Nityanandam, the thenSecretary (Home) to the Secretary, Ministry of Defence,Govt of India on 28-02-2002 at 1430 hrs. Unfortunately,the Army was not locally available as it had been deployedon the borders, as result of which the Army had to beairlifted to Ahmedabad and could be effectively deployedfrom 01-03-2002 onwards only.

It is established that on 28-02-2002, events in theaftermath of the gruesome Godhra episode of 27-02-2002unfolded and violent incidents were reported from manyparts of the State. high level review of the situation at theChief Minister’s level was made on 28-02-2002 afternoon.The meeting was attended by the Chief Minister, MoS(Home), the DGP and Addl. DG (Int.). By 1430 hrs, theChief Minister had made an oral request to the Union HomeMinister for Army deployment. At about the same time, anofficial request was sent in writing by Shri K. Nityanandam,the then Secretary (Home) to the Secretary, Ministry ofDefence to make the Army available for internal securityduties. The Chief Minister publicly announced at 1600 hrs.in press conference the decision of the State Govt. to callthe Army. Efforts were also made to requisition availableArmy personnel in the cantonment area of Ahmedabad, butno force was available. It was understood that withdrawingthe Army at such critical juncture when war like situationexisted with the neighbour needed high level decision atthe Centre. This decision to withdraw the Army and deploy

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in Gujarat has immediately taken at highest level in theCentre at the request of Gujarat Govt.

Army personnel were airlifted from forward positionsand they started arriving by the midnight of 28-02-2002. Itmay be mentioned here that 40 aircrafts were used to airliftArmy personnel to Ahmedabad. The first plane, landed atAhmedabad on 28-02-2002 mid night and the last one on01-03-2002 at 2300 hrs. The deployment of the Army alsorequired additional logistic support by the civiladministration in the form of Executive Magistrates,vehicles, Liaison officer, mobile phones, guides and mapsand same were promptly made available to them. Thedeployment of Army commenced by 1100 hrs after highlevel meeting with the Chief Minister and the UnionDefence Minister along with senior officials of the Armyand the state administration. The Army was deployed inthe affected areas of Ahmedabad City i.e. Paldi, Juhapura,Vejalpur, Shahpur, Bapunagar, Rakhial, Gomtipur,Meghaninagar; Dariapur, Kalupur, Naroda and Dani Limda.It may thus be seen that 9 columns of Army were deployedon 01-03-2002. Later on, 2 columns of the Army weremoved to Vadodara on 01-03-2002 at 1830 hrs, 2 columnsdespatched to Godhra on 02-03-2002, and they reachedGodhra at 0130 hrs, 2 columns moved to Rajkot on02-03-2002 at 1100 hrs. It may be mentioned here that whilethe situation in the other parts of the Gujarat was grave,cities like Bhavnagar and Surat were initially unaffected.However, as incidents of violence were reported fromBhavnagar and Surat, Army columns were moved to Suraton 03-03-2002 at 1100 hrs and to Bhavnagar on 03-03-2002at 2235 hrs. In all 26 Army columns had been deployed atthe peak of riots in the State.

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In addition, the Govt. of India had approved thedeployment of CPMFs and therefore, 6 Coys of CISF, 11Coys of BSF, 5 Coys of Border Wing Home-guards and 4

Coys of RAF were deployed in the State by 03-03-2002.The State Govt. had also made request on 28-02-2002, tothe neighbouring States of Maharasthra, Rajasthan andMadhya Pradesh to spare the services of their ArmedReserve Police companies. However, only Maharashtraresponded by sending 2 Coys of SRP, whereas the Govt. ofRajasthan and Madhya Pradesh expressed their inabilityto spare any police force due to the internal commitments.It may thus be seen that there was no delay, whatsoever inrequisitioning the Army and its deployment by the State asand when they realised. on 28-02-2002 afternoon that thesituation was going beyond control. Significantly, UnionDefence Minister arrived at Ahmedabad on 28.02.2002night to ensure that Army formations take their positionswithout any delay.

Shri G. Subha Rao, the then Chief Secretary, who hadgone aboard, was recalled and he arrived on 01-03-2002.The Chief Secretary had issued clear cut message to allthe jurisdictional officers to take effective action includingimplementation of Communal Riot Scheme, to act in adecisive, prompt and effective manner to control thesituation and not to hesitate to use whatever force wasnecessary to bring the situation under control, if any lifeand property were threatened. It was impressed by himthat firing be resorted to as per situation and if the situationdeteriorates beyond point, besides imposing curfew evenshoot at sight orders should be given to control the unrulymobs. This wireless message from the Chief Secretarygives clear cut indication and mind of the State that theriots had to be controlled at any cost.

Frantic messages were sent by the Home Departmenton 01-03-2002 to 06-03-2002 and specific instructions weregiven to the effect that the riots had to be controlled and allsteps should be taken to restore normalcy and peace inthe State. In addition, 14 messages were sent by the HomeDepartment, which included measures, to be taken forensuing festivals, arrival of Hajj pilgrims and their security,Jumma Namaz, Ram-Navami, Moharrum, Holi-Dhuleti and

AGood Friday. These messages also included the necessaryprecautions to be taken in the issues relating to symbolicor actual bhumi pooja proposed to be performed by theRamsevaks on 15-03-2002, about which the specific ordershad been issued by the Hon’ble Supreme Court of India tomaintain status-quo.

Further investigation has also disclosed that the ChiefSecretary and Addl. Chief Secretary (Home) had arrangedfor two video conferences with the CP, DMs, SP and otherconcerned officers on 04-03-2002 and 11-03-2002, in whichimportant items on agenda were as follows:-

i.Review of current law and order situation in the state

ii.Effective deployment of various forces

iii.Instruction for holding Peace Committee meetings andPeace Marches

iv.Curbing violence and protecting places of worship.

v.Preventive measures and other actions againstcriminals including, detention

vi.Incidents of 15-03-2002 at Ayodhya and Ram-mandirEissue

vii.Bandobast for SSC/HSC examination

viii. Attention to various alert messages issued about law& order, ensuing festivals and Haj pilgrims

FIt has also come to light during further investigationthat from 27-02-2002 onwards, high level meetings withthe Chief Minister and senior officers were held in themorning as well as in the evening. The Chief Secretary andthe ACS (Home) also held atleast one meeting per day withDGP and other senior police officers, in which the currentGsituation during the last 24 hours was reviewed includingthe bandobast and deployment of forces. The Chief Secretaryalso held separate high level meetings with Army officerson 07-03-2002, 18-03-2002 & 23-03-2002.

Further investigation has established that the StateGovt. was reasonably vigilant vis-à-vis the developmentson the law & order front and immediately responded bybringing to the notice of all District officials, the need tomaintain adequate bandobast in view of the Godhra incidenton 27-02-2002. In addition, written communications weresent on day to day basis with specific instructions to controlthe law & order situation with view to bring normalcy,communal peace and harmony in the State at all costs. TheState authorities also impressed upon jurisdictional officersthat violators of law should be effectively dealt with, no laxityshown and maximum force used to suppress and containthe violence. The allegation about the inaction on the partof State Govt. as well as police department is, therefore,not established.

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Observations made by Ld. Amicus Curiae:

It is difficult to believe that when CM came back after theGodhra trip, no Minister was present at his residence, Hence,it may not be totally unbelievable that Shri Haren Pandyawas present. Shri Haren Pandya is unfortunately dead, butthe statements made by Late Shri Haren Pandya to JusticeP.B. Sawant (Retd.) and Justice H. Suresh (Ret.) can be used,even if his statement is not been formally reproduced in thewriting by the Citizen’s Tribunal.

It has also been brought out that an enquiry was made fromCM’s office as to the identity of the Minister who had deposedbefore the Citizen’s Tribunal and that the State IntelligenceBureau had verified the identity as that of Shri Haren Pandya.This also gives some corroboration to the fact that CM’s officewas uncomfortable with the disclosure made by anunidentified Minister to the Citizen’s Tribunal.

Result of further investigation:

Further investigation revealed that the Chief Ministerleft Godhra at about 1945 hrs on 27-02-2002 by road and

reached Vadodara airport at about 2130 hrs. Shri NarendraModi left for Ahmedabad by Govt aircraft around 2130 hrs.From Ahmedabad airport CM went to Gandhinagar by roadand reached his official residence at about 2230 hrs. On hisreturn, he called for law & order meeting at about 2300hrs, which was attended by the top officials of administration,Home and Police department. Shri K. Chakravarthi, thethen DGP said that on 27-02-2002, late in the evening whilehe was in Door-Darshan studio, Ahmedabad City, hereceived message from State Police Control Room thatCM had called for meeting at his residence atGandhinagar at about 2230 hrs. He has further stated thathe had reached at CM’s residence alone little earlier andwaited there as CM had not arrived at that time.Subsequently, Smt. Swarna Kanta Varma, the then actingChief Secretary Shri Ashok Narayan, the then ACS (Home),Shri P.C. Pande, the then CP, Ahmedabad City and ShriK. Nityanandam, the then Secretary (Home) also arrivedthere. According to Shri Chakravarthi, the meeting was heldaround 2300 hrs or could be little earlier and lasted forabout 20-30 minutes. All the participants of the said meetinghave categorically stated that none of the Minister/politicianattended the said meeting. Mr. Justice P.B.Sawant, RetiredJudge of Hon’ble Supreme Court of India and Mr. JusticeHosbet Suresh, Retired Judge of Bombay High Court,members of the Concerned Citizens Tribunal - Gujarat2002, (that was conceived in response to the Godhracarnage on 27-02-2002) have stated that one Minister ofthe Gujarat Govt. namely Late Haren Pandya, appeared anddeposed before the Tribunal on 13-05-2002, on conditionof anonymity, that he had attended meeting on 27-02-2002night at the residence of Shri Narendra Modi, CM, in whichthe latter had made it clear that there would be backlashfrom the Hindus on the next day and that the police shouldnot come in their way. According to Justice Sawant, LateHaren Pandya revealed that Shri Modi also instructed thepolice officers and Civil servants that Hindu reaction wasexpected and the same must not be curtailed or controlled.However, his deposition had not been recorded anywhereby the Tribunal.

Further investigation revealed that an inquiry into the Godhraincident as well the riots that followed the Godhra carnage wasconducted by Concerned Citizen Tribunal sometime in April-May,2002 and their report was published on 21-11-2002, in the form ofa book titled “Crime Against Humanity”, which bears the signaturesof Mr. Justice P.B. Sawant, Retd. and Mr. Justice Hosbet Suresh,Retd. beside others. The extracts from page 249 of volume-l of“Crime Against Humanity” are reproduced below:-

“Witnesses deposing before us testified to the fact that thechief minister called meeting of senior police and other officerson that very night of February 27, 2002. At this meeting specificinstructions were given by him in the presence of state homeminister on how the police should deal with the situation on thebandh day. We were informed that instruction were given inthis meeting by the Chief minister specifically not to take actionagainst any Hindu reaction to Godhra”.

This report would go to show that, the State Home Ministeri.e. Shri Gordhan Zadafia, the then MoS (Home) was present inthe said meeting, whereas there is conclusive evidence to establishthat Shri Gordhan Zadafia, had stayed at Godhra on 27-02-2002and returned on 28

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-02-2002 morning. Nowhere, the name of Late Haren Pandya,who was holding the portfolio of Minister of State for Revenuehad been mentioned in the said report. On the contrary, Late HarenPandya had been severely criticized by the Concerned CitizenTribunal in its report. Some of the extracts from the said reportare reproduced below:-

“Naroda Patiya and Naroda Gaon have long history of VHPprovocation. Police sources revealed to expert witnesses whodeposed before the Tribunal, that in 1999 dargah was brokendown and an idol installed in its place. At the time, the localpolice repaired the dargah and arrested 10-15 persons, includingDr. Jaideep Patel, Maya Kodnani and Amrish Pandey. Pressurewas mounted on the police by the then home minister, Haren

Pandya, but the police stood their ground and the law-breakerswere forced to back down” (page-36. of Vol.1)

“On the night of February 27-28, the elephants that are keptinside the temple premises were made to drink liquor. Thesounds and trumpeting that followed caused terror in the entirelocality. During the last election, former minister Haren Pandya,who won from the Paldi area, had openly proclaimed duringhis campaign, Baandyo nahin bachwo joyiye. (Not singlebaandyo, abusive term for Muslim/circumcised person mustbe spared..)” (page-44 of Vol.1)

“Three eyewitnesses, who deposed before the Tribunal, sawformer revenue-minister Haren Pandya opposite the VSHospital, setting fire to the Apna Bazaar Medical. Aa Miyaoneaag lagadiye. (Let us burn these Muslims.), he was shoutingafter he had burnt it down himself. The Ellis Bridge policestation is close by but they did nothing. The fire brigade wascalled and they tried desperately to put out the fire. But Pandya,leading the mob, prevented them. An FIR has been launchedagainst him and BJP MLA Ashok Bhatt. Just outside the EllisBridge police station, Haren Pandya was overheard telling thePI, even as Hotel Ellis was aflame, Aah samaj kayi nathi kartoo.(This community does nothing.) The PI concerned had specialroom permanently booked for him at Hotel Ellis”. (page-44 ofVol.1)

“There were attacks on 6 housing societies in Paldi, where about1,000 Muslims live. In all, there are about 5-6,000 Hindus living inthis area. Kazmi Apartments, Elite, Delite, Corner 2, TaranaApartments and Bungalows No. 16 and 24 in Paldi, occupied bythe owners of Motimahal, were completely burnt. Eyewitessestestified to seeing the then Gujarat revenue minister, Haren Pandya,leading mobs who then committed arson”. (page-48 of Vol. 1)

“Detailed evidence was recorded by us regarding the desecrationof the tomb of Wali Gujarati, renowned poet remembered as thefounder of Urdu poetry. On March 1. His tomb, located not morethan 10 metres from the office of Ahmedabad’s commissioner ofpolice (also the police headquarters) was demolished and saffronflag hoisted on the site. It is believed that the shrine was torn

down by marauding mobs under the directions of Gujarat’s revenueminister, Shri Haren Pandya. This flag was removed on the nightof March 2. On March 8, tarred road was constructed at thesite, leaving no trace whatsoever of the tomb that had stood therefor nearly three centuries. It is shocking that calious governmentand an unprincipled administration participated in the utterobliteration of this cultural monument and allowed road to beconstructed over it”. (page - 48 of Vol. 2)

“On the night of March 3, 400-year-old mosque owned by theWakf Board, and located near Anjali Cinema in Ahmedabad, wasbroken down in the presence of state ministers Shri Haren Pandyaand Shri Amit Shah. As in many other cases, Hulladiya Hanumanidol was installed there, followed by darshans and artis”. (page-49 of Vol.2)

“The Tribunal observes that in Gujarat, many cabinet ministersare simultaneously prominent leaders of the VHP. The homeminister, Shri Gordhan Zadaphiya, is one of them. So, too, is theformer revenue minister Shri Haren Pandya, senior VHPfunctionary. He has been named by many witnesses who appearedbefore us, as trying to influence police not to take action againstthe accused. Minister for forests, Shri Prabhat Singh Chauhanand minister for cottage Industres, Shri Narayan Laloo Patel arealso two clear examples of this”. (page-52 of Vol.2)

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“Some of the senior BJP leaders and ministers in Shri Modi’scabinet were also alleged to have participated in the destructionof minority places of worship. Minister for revenue, Shri HarenPandya and health minister, Shri Ashok Bhatt led the mobsenthusiastically in Ahmedabad. Shri Bharat Barot, sittingMLA, was also at the forefront. Residents of Paldi, from whereShri Pandya was elected, actually saw him lead arson attacks.Shri Pandya’s election promise the last time was to wipe anytrace of Muslims out of Paldi”. (page-77 of Vo1.2)

“One of the most shocking aspects of the Gujarat carnagewas that the constituencies of some minister and sitting MLAs

were the arena for the worst incidents of carnage. Bapunagarin Ahmedabad, one of the worst affected areas, is the homeconstituency of the minister of state for home, Shri GordhanZadaphiya. Paldi, Ahmedabad is the constituency of Shri HarenPandya, former state home minister and, until recently, revenueminister in Shri Modi’s cabinet”. (page-87 of Vol .2)

As regards the deposition of Late Haren Panda beforethe Concerned Citizens Tribunal, further investigation hasestablished that the meeting convened at CMs residence,was an essentially law and order review meeting that washeld on 27-02-2002 and that none of the Cabinet Ministersattended the same. Late Haren Pandya was not even aCabinet Minister at that time and was holding the portfolioof Minister of State for Revenue. Shri Gordhan Zadafia, thethen MoS for Home also did not attend this meeting, as hehad stayed back at Godhra. In view of the version of all thesenior officials of the Home and Police Department thetestimony of Late Haren Pandya before the Tribunalbecomes questionable.

As regards the entries made by Shri R.B. Sreekumar atpage-21 on 12-06-2002, in register unauthorisedly maintainedby him that the call details of the mobile phone of Late HarenPandya were handed over to Shri P.K. Mishra, the then PrincipalSecretary to CM through Shri O.P. Mathur in his office, the sameappears to be doubtful as Shri Mathur has denied to have handedover any such call details to Dr. P.K. Mishra in his office and thatPrincipal Secretary to CM never visited the office of the StateIB, as stated in the said entry made in the register. Moreover, ShriS.M. Pathak, the then Dy.SP, State IB has confirmed to haveconducted secret inquiry about one of the Ministers, which hadmet Forum of which Justice Krishna lyer, retired Judge ofSupreme Court and some others were the members, who hadcome to Ahmedabad to enquire into the riots in the state. ShriPathak has also confirmed to have conducted secret inquiries,which revealed that Late Haren Pandya had met and deposedbefore them and that this fact was reported to Shri R.B. Sreekumarorally. However, Shri Pathak has stated that he does not recollect,as to whether he was asked to collect the mobile phone details ofLate Haren Pandya or not, which again creates doubt about theentry made by Shri R.B. Sreekumar in his register. Shri PK. Mishra,the then Principal secretary to CM has stated that he does notrecollect, as to whether be asked Shri R.B. Sreekumar to collectthe mobile call records of Late Haren Pandya and that no phonecall details were made available to him by either Shri Sreekumaror Shri O.P. Mathur. No disclosure was made by Shri R.B.Sreekumar about the said register in his deposition before theCommission on 31-08-2004 or in any of the two affidavits filed byhim on 15-07-2002 & 06-10-2004. It is rather surprising thatthis register saw the light of the day for the first time in theyear 2005, when Shri R.B. Sreekumar filed copy of thesame along with his third affidavit filed before the Nanavati-Shah Commission of Inquiry on 09-04-2005. It may bementioned here that this affidavit was filed by Shri R.B.Sreekumar after his super-session in promotion in February,2005. In view of the fact that the register maintained byShri R.B. Sreekumar can not be considered to be anauthenticated document, the entries made by him in hissaid register can not be considered to be reliable.

Further investigation revealed that Govt. mobile no.[REDACTED] was allotted to Late Haren Pandya. The calldetail records of the said mobile phone for 27-02-2002 havebeen sorted out from CD made available by Shri RahulSharma, DIG and the same show that Late Haren Pandyaremained at Ahmedabad City till 10:46:55 on 27-02-2002.His location at Ahmedabad City again comes at 16:24:24hrs and thereafter he remained at Ahmedabad City till22:52:07 hrs on 27-02-2002 and therefore, this wouldconclusively establish that Late Haren Pandya did notattend the law & order review meeting that took place atCM’s residence at Gandhinagar on 27.02-2002 night.

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In view of the aforesaid position, it appears that LateHaren Pandya had misled the Hon’ble Members ofConcerned Citizen Forum namely, Mr. Justice (Retd.) P.B.

ABC

Sawant and Mr. Justice (Retd.) Hosbet Suresh that he waspresent in the meeting called by the Chief Minister at hisresidence on the night of 27-02-2002 with view to increasehis credibility. It has been established beyond doubt thatLate Haren Pandya could not have been present in the saidmeeting and that the so called evidence given by him wasonly on hearsay basis. Since the statement made by LateHaren Pandya is on hearsay basis, it is not admissible underany provisions of law.

Observation made by Ld. Amicus Curiae:

The statement of Shri RB. Sreekumar cannot be discardedas hearsay, in the light of Section 6 of the Evidence Act.

Result of further investigation:

As far as allegation, which suggests that statementwas made by the Chief Minister Shri Narendra Modi on27.02.2002, in meeting at his residence instructing thesenior officers to allow the Hindus to give vent to theiranger is concerned, it is significant that Shri R.B.Sreekumar came on to the scene much afterwards andevidence brought by him is all hearsay. Shri R.B. Sreekumarbecame Addl. (Int.) only on 09.04.2002 and had not attendedthe meeting which was held much prior to his joining Ld.Amicus Curiae is of the view that the above statement ofShri R.B. Sreekumar cannot be discarded as hearsay in thelight of Section 6 of the Evidence Act. However, the factssuggest otherwise. If there is an interval between the actsof occurrence and the statement made by the personconcerned, it blocks the statements so made from acquiringlegitimacy u/s 6 of the Indian Evidence Act.Keeping in mind the principles of law laid down by theHon’ble Supreme Court of India in regards to hearsay evidence,it has been found that the evidence given by Shri R.B. Sreekumarneither forms part of the same transaction nor the said statementshave been made by Shri Sreekumar at the time of occurrence ofthe incident or at least immediately thereafter and, therefore arenot relevant as per Sec 6 of the Indian Evidence Act. In theinstant case, the so called evidence of Shri R.B. Sreekumar,

concerning the events before the riots was his ownperception as he had no direct knowledge of the same.

Shri R.B. Sreekumar has contended that no follow up actionwas taken on the reports sent by him on 24-04-2002, 15-06-2002,20-08-2002 & 28-08-2002 about anti-minority stance of theadministration. letter dated 24-04-2002 addressed to ACS(Home) with copy to DGP contained an analytical note on currentcommunal scenario in Ahmedabad City, which is general in natureand no specific instance has been cited. In brief, it has beenmentioned in this note that of late the minority community wasfound to be taking an increasingly belligerent postures as they feltthemselves as section of population left at total mercy of radicalcommunal elements of Bajrang Dal and VHP. It was furthermentioned chat the Muslim communities being the major victimsof the riots developed major grudge against the Criminal JusticeSystem, which they felt was highly biased. According to ShriSreekumar certain VHP and Bajrang Pal leaders had startedextorting protection money from the businessmen from both thecommunities and were pressurising the merchants and generalpublic not to employ the members of the minority community. Itwas further reported that both Hindu and Muslim communitieshad been inciting violence by way of distribution of pamphlets.

Shri Sreekumar appeared on the scene 40 days afterthe riots and whatever has been claimed by him has no directbearing on the facts in issue. Shri Sreekumar had also reportedthat the inability of Ahmedabad police to control the violence bythe communal mob had eroded the image of police as lawenforcing agency of the society and the media attacks on thepolice had demoralising impact on the police personnel. It wasalso pointed out that the Inspectors in charge of the police stationshad been ignoring the instructions given by the senior officers andcomplying with the direct verbal instructions from the politicalleaders of the ruling party, who ensured their placement andcontinuance in their choice postings. He had also suggested theremedial measures such as restoration of faith amongst theminorities in Criminal Justice system replacement of presentincumbents from executive posts at the cutting edge level, thespiritual leaders of Hindus and Muslims should launch state wide

campaign to expose the politicised pseudo religious leaders, actionat social level through non-political leaders, intellectuals and

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NGOs to restore mutual trust between the Hindus and Muslims,improvement of security in the riot affected areas to facilitate therehabilitation of riot victims and purposeful legal action againstpublication and distribution of pamphlets inflaming communalpassions etc.

According to Shri Ashok Narayan, the then ACS (Home),this letter contained general observations and concrete details weremissing. Shri K. Chakravarthi, the then DGP has stated that mostof the points and issues raised by Shri R.B. Sreekumar, had beeneffectively dealt with by him in March-April/2002. He is also ofthe view that the observations made by Shri Sreekumar weretotally general in nature and no specific instance had been citedby him, which could have called for any immediate action on hispart.

Shri R.B. Sreekumar had sent review report of law &order situation on 15-06-2002, in which he had mentioned aboutan unprecedented degree of revengefulness of the majoritycommunity resulting in massive and ghastly violence againstMuslims in period of five days since Godhra carnage and thatthe communal violence was still continuing, Shri Sreekumar stronglyrecommended for the implementation of remedial measures tocontain communal violence and neutralizing the fundamentalistelement in both majority and minority communities as suggestedin his analytical nore dated 24-04-2002. This law & orderassessment report was called for in view of Rath-Yatra, whichwas likely to be held sometime in July 2002. In this report, ShriSreekumar had expressed the view that on various groundsmentioned by him, the Rath-Yatra should not be taken out in nearfuture till an atmosphere of durable peace and goodwill betweenthe majority and minority communities was established. Shri AshokNarayan the then ACS (Home) has stated that the administrationdid not agree with the views of Shri Sreekumar and the Rath-

Yatra was taken on 12-07-2002, under police bandobast and nountoward incident took place anywhere.

Shri R.B. Sreekumar has further stated that he had sentanother report on the then prevailing law & order situation videhis letter dated 20-08-2002. According to Shri Sreekumar, even atthe time this letter was sent, the communal tension continued andthe communal gap between Hindus and Muslims had widened toan unprecedented degree. It was further mentioned that therewas latent communal tension in most of the places where incidentswere reported and that any minor issue involving members ofminority and majority community would reignite communalpassions resulting in clashes, as had been witnessed in Dhoraji(Rajkot District) on 17-08-2002. It was further mentioned by ShriSreekumar that large sections of the minorities being the majorvictims of the recent riots were still to develop adequate faith inAdministration, Police Department and Criminal Justice System.This letter was replied by Shri Ashok Narayan, the then ACS(Home) on 09-09-2002, in which he had clearly informed ShriSreekumar that his assessment of law & order situation was notin tune with the feedback received from other agencies. ShriAshok Narayan further mentioned that some apprehension and afeeling of insecurity amongst the members of the minoritycommunity was understandable in isolated pockets from whereincidents were reported, but the same do not indicate the feelingsof insecurity anymore. Shri Ashok Narayan has also mentionedthat Dhoraji’s incident was an isolated incident and that communalincidents had come down drastically during the last few months.Shri Ashok Narayan disagreed with the views of ShriSreekumar on the ground that no broad based inputs wererelied upon by him before arriving at conclusion.

Shri R.B. Sreekumar had sent another report regarding theemerging law & order vide his letter dated 28-08-2002. In thisletter, he had assessed that the social relations between the Hindusand Muslims remained highly strained including the traditionalcommunal pockets as well as new areas where the riots had takenplace, due to various reasons. Shri Sreekumar had suggested thatDistrict Magistrates/Commissioners of Police/Superintendent ofPolice be suitably advised to ensure that the organizers of the

public function/political campaign should avoid projectingcommunal issues that might widen the rift between the twocommunities and also to abide by the conditions of the license/permission granted to them. Shri K. Chakravarthi has stated thatShri R.B. Sreekumar had given same suggestions and most of itpertained to the Revenue Department and other departments. Asfar as police department was concerned, he (ShriChakravarthi) had given directions based on hissuggestions.

In view of the aforesaid position, it cannot be saidthat no action was taken by the Govt. on the assessment ofsituation made by Shri R.B. Sreekumar. Of course, therewas difference of opinion between Shri R.B. Sreekumar andthe Home Department on certain issues. However, the factremains that Shri Sreekumar appeared on the scene 40days after the riots and remained

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posted as Addl. DG (In1.) for little more that five months,and therefore, whatever has been claimed by him has nodirect bearing the issue i.e. events of 27/28-02-2002 orsubsequently in March 2002.

> Observation made by Ld. Amicus Curiae:

Another aspect is the fact that VHP General SecretaryJaydeep Patel and Shri Modi were at Godhra on 27-02-2002.The statement of Jaydeep Patel that he did not meet ShriNarendra Modi at Godhra does not inspire confidence. Thishas to be examined as the Mamlatdar would not have handedover the dead bodies to non-government person i.e. JaydeepPatel until and unless somebody very high told him to do so.

Result of further investigation:-

Further investigation revealed that Shri Narendra Modi,Chief Minister arrived at Godhra by helicopter around 1645 hrsand was accompanied by Shri Anil Mukim, the then Secretary toCM. He as received at the helipad by Smt. Jayanti Ravi and Shri

Ashok Bhatt and he straightaway drove to the Godhra RailwayStation. CM inspected the spot and talked to some of thepersons gathered there. From Godhra Railway Station, hewent to Civil Hospital and saw the persons injured in theSabarmati Express train burning incident. Since, curfew hadbeen imposed in Godhra town, the Chief Minister thenproceeded to Collectorate and held meeting with theMinisters present there, namely Shri Ashok Bhatt, the thenHealth Minister, Shri Gordhan Zadafia, the then MoS(Home), Shri Bhupendra Lakhawala, the then MoS (CivilDefence), Shri Prabhatsinh Chauhan, the then MoS forAviation & Pilgrimage and Shri Bhupendrasinh Solanki, thethen MP, Godhra, Collector & District Magistrate, PoliceOfficers and Railway Officers. The Chief Minister had alsomet the Press thereafter. Smt. Jayanti Ravi has stated toSIT that in the meeting held at Collectorate, unanimousdecision was taken that the dead bodies, which had beenidentified should be handed over to their relatives atGodhra itself and those bodies whose legal heirs orguardians had not come, could be sent to Sola Civil Hospital,Ahmedabad, since these deceased passengers wereheading towards Ahmedabad in Sabarmati Express. Thedecision to send the bodies to Sola Civil Hospital was takenin view of the fact that it was situated on the outskirts ofAhmedabad City and thus away from the crowded area forsecurity reasons. It has further come to light that out of 58burnt and dead bodies, 4 bodies belonging to Dahod,Vadodara, Panchmahal and Anand Districts were handedover to their legal heirs/guardians after identification atGodhra itself. The remaining 54 dead bodies were to besent with police escort to Sola Civil Hospital, Ahmedabadand Shri Jaydeep Patel, who was present at Collectorate,was to accompany these dead bodies to Ahmedabad.

Further investigation revealed that Shri M.L. Nalvaya, thethen Mamlatdar & Executive Magistrate prepared letteraddressed to Dr. Jaydeep Patel of VHP, in which he had mentionedthat 54 dead bodies were being sent through five trucks as detailedbelow:

CDEF

Shri Hasmukh T. Patel of VHP had acknowledged thereceipt of dead bodies. It may be mentioned here that thehanding over of the bead bodies to their legal heirs/guardians was the duty of the railway police, which hadregistered case in connection with this incident.

On his further examination Shri Nalvaya has statedthat these dead bodies were handed over officially to ShriJaydeep Patel and Shri Hasmukh T. Patel of VHP as perthe instructions given by Smt. Jayanti S. Ravi, DistrictMagistrate, Godhra and Late B.M. Damor, ADM, Godhra.Shri M.L Nalvaya has filed an affidavit, before NanavatiCommission of Inquiry to this

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effect on 05-09-2002. However, Smt. Jayanti Ravi has statedthat no such instructions were given to Shri Nalvaya to handover the dead bodies to Shri Jaydeep Patel or Shri HasmukhT. Patel of VHP and that Shri Jaydeep Patel was merely toaccompany the dead bodies to Ahmedabad.

Shri Jaydeep Patel visited Godhra on 27-02-2002 and waspresent at the Collectorate. Further investigation revealed that asper the call detail records of mobile phone no. [REDACTED] of ShriJaydeep Patel, he reached Godhra on 27-02-2002 around 1248hrs and remained there till 2358 hrs. At Godhra, he had made/received calls to/from Shri Gordhan Zadafia at the latter’s mobilephone no. [REDACTED]. All these calls had been made/receivedbetween 2003 hrs and 2113 hrs. It is, therefore, quite possible thatShri Gordhan Zadafia, the then MoS (Home), might have instructedthe police authorities to allow Shri Jaydeep Patel to accompany

the dead bodies. The aforesaid call detail records establish thatShri Jaydeep Patel remained at Godhra till about 2358 hrs on27-02-2002.

Shri Jaydeep Patel has stated that he did not meet ShriNarendra Modi, Chief Minister. Since most of the persons, whohad died in Godhra carnage were the karsevaks of Vishwa HinduParishad, he met some local administrative and police officials,whose names he could not recollect at this stage, and requestedthem to hand over the dead bodies of the Karsevaks to him foronward transportation to Ahmedabad. The district officials accedeto his request and accordingly letter was prepared by Mamlatdarand Executive Magistrate, Godhra in his name specifying the detailsof the dead-bodies and the number of trucks in the same. ShriHasmukh T. Patel of VHP, who had accompanied him,acknowledge the receipt of these dead-bodies as per his signatureappering on the list. It may be mentioned here that 58 persons haddies in this incident out of which 4 persons were identified atGodhra railway station itself by their relatives. The dead-bodiesof these four persons were handed over to their relatives afteridentification. Five trucks were arranged by the districtadministration for the transportation of the dead bodies. ShriJaydeep Patel has stated to have met the lady collector of Godhraaround 23.30 or 24.00 hours. police escort had accompaniedthe dead bodies from Godhra and on the way to Ahmedabad theescorts from the concerned districts joined. The convoy reachedSola Civil Hospital, Sola, Ahmedabad between 0330 hours to 04.00hours on 28.02.2002. At Sola Civil Hospital, lady doctor, PI ShriLathia of Sola Police station, Shri Prajapati, Deputy Collector,Collector and Mamlatdar were present. There were several otheradministrative and police officials present there, whose names hedoes not recollect. He handed over the letter to Shri Prajapati,Deputy Collector. Thereafter, the police and administrative officialsgot busy with the preparation of panchnama and other papers.Further investigation revealed that the relatives ofthe persons, who had died in the Godhra carnage, werealso present in the hospital. Accordingly, 35 persons wereidentified and their dead bodies handed over to their

relatives by about 1300 hrs on 28-02-2002 by the policeafter obtaining the receipts from them. It may be mentionedhere that 25 dead bodies were claimed by the residents ofAhmedabad, two (2) by the residents of Kadi, Mehsana,five (5) by the residents of Anand, two (2) by the residentsof Khedbramha, Sabarkantha and one (1) from Rajkot. Thephotographs and DNA samples of the remainingunidentified 19 dead bodies were taken by the hospitalauthorities. These 19 unidentified dead bodies werecremated on 28-02-2002 evening, at Gota cremation groundnearer to the Sola Civil Hospital by the DistrictAdministrative and Police officers with the help of Surpanchof Gota village. The cremation was completed by about 1830hrs on 28-02-2002.

Shri Narendra Modi, Chief Minister had earlier stated thatShri Jaydeep Patel, the then VHP General Secretary was knownto him. However, he does not remember to have met him atGodhra. According to Shri Modi, after the decision was taken totransport the dead bodies to Ahmedabad, it was the duty of theDistrict Administration to chalk out the modalities for itstransportation.

It may thus be seen that the journey from Godhra toAhmedabad started around midnight and the dead bodies reachedSola Civil Hospital sometime between 0330 to 0400 hrs and therewas no one on the highway at that point of time in the night to seethem. Further, though letter had been addressed by Shri M. L.Nalvaya in the name of Shri Jaydeep Patel of VHP and the deadbodies were acknowledged by Shri Hasmukh T. Patel of VHP,yet the dead bodies were escorted by the police upto Sola CivilHospital, Ahmedabad situated on the outskirts of Ahmedabad City.At Sola Civil Hospital, Shri Jaydeep Patel handed over the letterto the hospital authorities and the local police as well as the hospitalauthorities took charge of the dead bodies. Subsequently, 35 deadbodies were handed over to the legal heirs/guardians of thedeceased by

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the police after preparing the panchnama and documentation. The19 unidentified dead bodies were cremated on the same eveningby the local administration and police authorities at Gota cremationground nearby with the help of Sarpanch of Gota village afterretaining their DNA samples. Subsequently, 12 dead bodies couldbe identified after conducting DNA tests, while the remainingseven (7) remained unidentified.

The above facts would go to establish that though aletter had been addressed by Mamalatdar, Godhra to ShriJaydeep Patel of VHP, yet the dead bodies were escortedby the police from Godhra to Ahmedabad, where the samewere taken charge of by the hospital authorities, DistrictAdministrative and Police Officers and handed over to thekith and kin of deceased persons after taking properreceipt. Shri M.L. Nalvaya, Mamalatdar had acted in anirresponsible manner by issuing letter in the name ShriJaydeep Patel in token of having handed over the deadbodies which were case properly, and therefore, the Govt.of Gujarat is being requested to initiate departmentalproceedings against him.

��Observations made by Ld. Amicus Curiae:

The positioning of 2 Cabinet Ministers having nothing to dowith the home portfolio in the Office of DGP and the Statepolice Control Room respectively is another circumstancewhich reflects that there was direct instruction from theChief Minister. Though Shri Jadeja says that he had gone tothe DGP’s office on instructions of Shri Gordhan Zadafia,MoS (Home) this is highly unbelievable. It is obvious that theChief Minister had positioned these 2 Ministers in highlysensitive places which should not have been done. Infact, these2 Ministers could have taken active steps to defuse the riots,but they did nothing, which speaks volumes about the decisionto let the riots happen. It does not appear that these 2 Ministersimmediately called CM and told him about the situation atGulberg and other places.

SIT merely relied upon the statement of the police officers toconclude that these 2 Ministers did not give any instructionsto Police department, but it appears highly unlively that 2Cabinet Ministers of the Government of Gujarat would havenot given some kind of directions when CM had directed themto remain present.

It is obvious that the 2 Ministers were fully aware of thedeveloping situation in Gulberg Society, Naroda Patiya etc,in Ahmedabad City. They were duty bound to convey thesituation to the Chief Minister and were required to doeverything possible to save loss of lives. If the stand of CMthat these 2 Ministers were positioned so as to effectivelycontrol the law and order situation is correct, then there wouldhave been far quicker action to control the riots in GulbergSociety and Naroda Patiya atleast.

Result of further investigation:

Further investigation has been conducted into the allegationrelating to the. positioning of Shri I.K. Jadeja, the then UrbanDevelopment Minister in the State Police Control Room, DGP’soffice and Late Ashok Bhatt, the then Health Minister in theAhmedabad City Police Control Room.

Shri K. Chakravarthi, the then DGP has stated during furtherinvestigation that Shri Ashok Narayan, ACS (Home) informedhim that it was decided by the Govt. that Shri I.K. Jadeja, the thenMinister would be in his office to secure some information aboutthe law & order situation in the State as State Control Room issituated in DGP’s office. Shri Ashok Narayan had further informedhim that Late Ashok Bhatt another Minister would sit in AhmedabadCity Police Control Room. Shri Chakravarthi has further statedthat he had his own reservations in this matter and, therefore, headvised the ACS (Home) that it would be better, if these Ministersgot the information from the Control Room in the HomeDepartment. However, Shri Ashok Narayan informed him thatno such facility was available with him in the Home Departmentand, therefore, the two Ministers would come to the respectiveControl Rooms.

According to Shri Chakravarthi, Shri I.K, Jadeja, the thenMinister came to his office in the forenoon of 28-02-2002 and satin his chamber for about 15-20 minutes. Shri Chakravarthi couldnot attend to him, as he was awfully busy with the telephone callsbeing received by him from all over the State. According to hisrecollection, he had asked someone to shift the Minister

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to an empty chamber in his office and this was done. He has alsostated that he was not aware as to what Shri Jadeja did while hewas in the DGP’s office as he was extremely busy with his workon that day as rioting was taking place at many locations. Later,Shri Chakravarthi came to know that Shri Jadeja had left his office.Shri Chakravarthi has categorically stated that his enquiries withthe staff of the State Control Room had revealed that Shri Jadejadid not interfere with the functioning of the Control Room in anymanner.Shri P.C. Pande, the then CP, Ahmedabad City has statedthat it was incorrect to say that Shri Ashok Bhatt, the then HealthMinister remained stationed at Shahibaug Control Room on28-02-2002 to guide the police force in controlling the law & ordersituation. He specifically asserted that Shri Bhatt did not visit CP’soffice Control Room on 28-02-2002. He has further stated thatShri George Fernandes, the then Union Defence Minister arrivedat Ahmedabad on 28-02-2002 night. Shri Fernandes reached CP’soffice on 01-03-2002 around 1000 or 1030 hrs and asked ShriPande about the deployment of Army, to which the latter said thathe would check up the same from the Control Room. Both ofthem went to the Control Room downstairs. According to ShriPande, Shri Ashok Bhatt, who had been waiting for Shri Fernandesin the Circuit House, also came to CP’s office to meet ShriFernandes and entered the Control Room. Shri Pande has alsostated that Shri Fernandes and Shri Ashok Bhatt remained in theControl Room for about ten minutes and then left CP’s office.According to Shri Pande, during this visit to the Control Room,some of the press and media persons were also present and assuch it was somehow made to appear that Shri Ashok Bhatt had

come to monitor the Control Room. Finally, Shri Pande has statedthat Shri Ashok Bhatt was never deputed to Shahibaug PoliceControl Room to assist the police.

According to Shri Ashok Narayan, he does not recall anyinstructions given by the Chief Minister, which were conveyed byhim either to the DGP or CP, Ahmedabad City to the effect thatShri Ashok Bhatt and Shri I.K.Jadeja would sit in the AhmedabadCity Police Control Room, Shahibaug and State Control Room,Gandhinagar respectively to assist/help the police.

Shri I.K. Jadeja, the then Urban Development Minister hasstated that it was an established norm in Gujarat State that in caseof any natural calamities or serious law & order situation theMinisters of various departments extend their help in handling thecrisis. According to his recollection on 28-02-2002, he hadvolunteered himself, if he could be of any help in the prevalentsituation, to which Shri Gordhan Zadafia, the then MoS (Home)had told him to remain present in the Police Bhavan and to seethat in case any information was received in the State ControlRoom about any rioting incident and any information was receivedseeking extra police force, then the same should be passed on tothe Home Department. Consequent to these instructions, he wentto DGP’s office around 1100 hrs and stayed there for 2-3 hours.He has stated to have interacted with the DGP and informed himthat if and when his help was required he could ask him. He hasdenied to have entered the State Police Control Room and hasstated that there was no question of any interference. However,Shri Gordhan Zadafia, the then MoS (Home) has denied to haveany given any suggestion to Shri I.K. Jadeja. He has further statedto have visited the DGP’s office on the next one or two days also,but stayed there for few minutes only. He has also stated that theDGP had not shared any information with him and therefore, heleft Police Bhavan in few minutes on both these occasions.

Late Ashok Bhatt had earlier stated that he might havevisited Ahmedabad City Control Room for about 5-10 minutes on28-02-2002. However, he has denied to have interfered with thepolice work, as being senior minister he had to maintain hisdignity and status. Again on 01-03-2002, he admitted to have visitedthe Shahibaug Control Room for about 10 minutes to meet Shri

George Fernandes, who had gone to CP’s office. The call detailrecords of mobile phone no. [REDACTED] of Late Ashok Bhattshow that he returned from Godhra to Ahmedabad on 28-02-2002,at about 05:16:51 hrs. Thereafter, the call details do not show itslocation till 15:50:43 hrs on 28-02-2002, when the location wastraced to Kaba Circle, Gandhinagar. During this period, it ispresumed that he was at Gandhinagar. His location on 28-02-2002 at 16:16:37 hrs to 17:47:22 hrs was shown as ShahibaugKedar Tower, Ahmedabad City, which would conclusively provethat during this period he attended CM’s press conference at CircuitHouse Annexe, Shahibaug, Ahmedabad City. Thereafter, againthe location was seen at 17:59:22 hrs at Koba Circle, Gandhinagar,which shows that he was returning to Gandhinagar. These calldetails would go to show that he did not visit Shahibaug PoliceControl Room on 28-02-2002.

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Shri Sanjiv Bhatt, the then DC (Int.) has stated that he hadattended meeting at CM’s residence on 28-02-2002 along withthe DGP and ADGP (Int.). After the meeting, he returned to hischamber on the second floor of Police Bhavan at about 1100 hrsand shortly thereafter went to meet the DGP on the first floor ofthe same building. When he entered DGP’s chamber he foundthat as instructed after the conclusion of CM’s meeting, twoCabinet Ministers of Gujarat, namely, Shri Ashok Bhatt and ShriI.K. Jadeja had already arrived and were sitting on sofa-set inDGP’s chamber. He further stated that Shri G.C. Raiger, the thenAddl. DG (Int.) and Shri Maniram, the then Addl. DG (Law &order) were also present there. Shri Sanjiv Bhatt briefed DGPand after taking tea, he returned to his chamber. Shortly thereafter,Shri Sanjiv Bhatt happened to go to State Control Room on firstfloor to collect some documents and saw Shri I.K. Jadeja and hissupporting staff sitting in the chamber of Dy.SP, Control Room.Finding this little odd, Shri Sanjiv Bhatt went to DGP and informedhim that it would be improper to permit outsiders in the StateControl Room and asked him whether the Minister and hissupporting staff could be shifted from the State Control Room.DGP agreed with him and thereafter, Shri Sanjiv Bhatt again went

to Control Room and requested Shri I.K. Jadeja to accompanyhim as his presence in the Control Room would hamper the smoothfunctioning of the State Control Room, during such critical period,whereupon the latter got up and followed him. According to ShriSanjiv Bhatt, he took Shri Jadeja, Minister to the chamber of ShriP.C. Thakur, the then IGP, which was empty at that time andrequested him to make himself comfortable and contact them forany assistance/requirement. Shri Chakravarthi was informed aboutit. Shri Sanjiv Bhatt has also stated that subsequently he learntthat Shri Jadeja left the Police Bhavan sometime in the afternoon,after having lunch. Shri Sanjiv Bhatt is not aware about the visitof Shri Jadeja in the Police Bhavan on the subsequent days.During further investigation, Shri Nissar Mohammad Malik,the then PSI, who was on duty in the Police Control Room,Ahmedabad City from 28-02-2002 at 0800 hrs to 02-03-2002 at0800 hrs, has stated that Shri George Fernandes, the then UnionDefence Minister and Shri Harin Pathak, the then MoS forDefence had come to Police Control Room, Ahmedabad City at1005 hrs on 01-03-2002, and left at 1025 hrs. He has confirmedthe wireless message in this regards to be under his signature. Hehas denied knowledge about the visit of Late Ashok Bhatt, thethen Health Minister to the Police Control Room either on 28-02-2002 or 01-03-2002. Shri. V.R. Patel, the then PSI has also deniedthe visit of Late Ashok Bhatt, the then Health Minister to thePolice Control Room either on 28-02-2002 or 01-03-2002.

Shri V.R. Patel, the then PSI has also denied the visit ofLate Ashok Bhatt, the then Health Minister to the AhmedabadCity Police Control Room either on 28-02-2002 or 01-03-2002.

Shri Parbatsinh A. Dholetar, the then PSI, Ahmedabad CityPolice Control Room, who was on duty on 28-02-2002 from 0800hrs to 1200 hrs and 2000 hrs to 2400 hrs, has denied the visit ofany Minister to the Police Control Room.

Shri Maganbhai M. Limbachia, the then PI, who was onduty from 0800 hrs to 2000 hrs on 01-03-2002 in State PoliceControl Room, Police Bhavan Gandhinagar, has denied the visitof any Minister in the Control Room.

It may thus be seen that Shri K. Chakravarthi hascategorically stated that Shri I.K. Jadeja did visit his office,but did not go to the State Control Room and he was madeto sit in an empty chamber. Shri I.K. Jadeja himself hasconfirmed that he was shifted to an empty chamber nearDGP’s chamber and that DGP did not share any informationwith him. Shri K. Chakravarthi, the then DGP has confirmedthat Shri Jadeja did not interfere with their work.

Shri I.K. Jadeja has taken the plea that it is anestablished practice in Gujarat State that in case of anynatural calamities or serious law & order situation theMinisters of the various departments extend their help inhandling the crisis. Late Ashok Bhatt had admitted earlierthat he might have visited Ahmedabad City Police ControlRoom on 28-02-2002 for few minutes, but the call detailrecords of his official mobile phone show his location atShahibaug Kedar Tower between 16:16:37 and 17:47:22on 28-02-2002, when he attended CM’s press conference.This would conclusively prove that he did not visit the PoliceControl Room on 28-02-2002. Moreover, the officials ofAhmedabad City Police Control Room have denied thatLate Ashok Bhatt ever visited the said Control Room eitheron 28-02-2002 or 01-03-2002. In view of the aforesaidposition, it is established that Shri I.K. Jadeja did visitDGP’s office, but did not enter the State Control Room orinterfere with the working of the police and the DGP alsodid

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not share any information with him. However, it could notbe established that Late Ashok Bhatt visited AhmedabadCity Police Control Room either on 28-02-2002 or01-03-2002. As per his own admission he might have visitedthe Control Room for few minutes on 28-02-2002 and/or01-03-2002. Therefore, the allegation that the twoMinisters were positioned in the State Control Room andAhmedabad City Police Control Room by the Chief

Minister is not established. Significantly, Shri I.K. Jadejaremained at State Police headquarters for 2/3 hours as perhis own admission but did not interfere in the policefunctioning. Late Ashok Batt’s presence in the City Policeheadquarters on the relevant day, if any, was very negligibleand it cannot be termed of any material value. In the absenceof documentary/oral evidence of any directions given bythese two Minister IO Police officials, it can not be said atthis stage that they conspired in the preparation of riots ordid not take any action to control the riots.

Observation made by Ld. Amicus Curiae:

No tangible action seems to have been taken by the policehigh ups in the Police Department, namely Commissioner ofPolice, to control the riots at Gulberg Society. Gulberg Societyis not very far away from the Office of Commissioner of Police,Ahmedabad.

Result of further investigation:

Further investigation conducted about the role played byShri P.C. Pande, the then Commissioner of Police, AhmedabadCity revealed that on 27-02-2002, Shri Pande remained in theoffice till late in the night as well as in the early hours of 28-2-2002. During this period, he had informally discussed the law &order situation and the arrangements to be made on 28-2-2002,with Shri Shivanand Jha, the then Addl. CP, Sector-1 and ShriM.K. Tondon, the then Jt. CP, Sector-II. On 28-2-2002, Shri Pandecame to office around 08:00 hrs. After sometime, he came toknow that the dead bodies of victims of Godhra incident had beenbrought to Sola Civil Hospital and that some kind of dispute/altercation was going on and the atmosphere was tense at SolaCivil Hospital. Accordingly, Shri P.C. Pande went to Sola CivilHospital around 10:00 hrs and found that the doctors were underpressure to complete the documentation whereas the relatives ofthe victims were in hurry to take the dead bodies. However,Shri Pande did not find anything alarming and, therefore, returnedto his office at about 11:00 hrs.

On the way, he found that the mobs had assembled at manyplaces in large numbers, but they were not violent and most ofthem being spectators. While Shri Pande sat in his office, thereports started pouring in from all parts of the city about stonepelting, arson, looting and damaging of properties. He does notexactly remember, but whenever any information came to himabout any incident or any distress call was received from anyindividual the same was promptly attended and the informationimmediately passed on to the concerned officer with instructionsto attend to it on priority basis. The Control Room was floodedwith numerous calls for help and as such with the available forceit was not possible to effectively deal with all the situations. Itmay be mentioned here that on that day many distress calls hadbeen received from Police Station areas like Satellite, Navrangpura,Ellisbridge, Bapunangar, Amraiwadi, Meghaninagar, Naroda andOdhav, which had comparatively faced lesser communal problemsin the past. few calls had been received from walled city aswell namely Shahpur in particular, but the extent of damage wasmuch less. Keeping in view the gravity of the situation curfewwas declared in many parts of the city from 1220 hrs onwards.

As far as Shri P.C. Pande recollects, he had instructed ShriM.K. Tandon, the then Jt. CP, Sector II on 28-2-2002 forenoon,to go to Meghaninagar as some calls of crowd gathering and stonepelting etc were being received in the Control Room MeghaninagarP.S. area. He has stated that he did not know Late Ahesan Jafri,Ex-MP personally and also did not have knowledge that he wasresiding in Gulberg society till 28-02-2002 afternoon.

Shri P.C. Pande had earlier stated that Shri M.K. Tandon,Jt. CP, Sector-II had reached Naroda Patiya around 12:30 hoursand had Spoken to him over mobile phone that the situation wasalarming and recommended that curfew should be declared in theNaroda P.S. area. He concurred with the advice of Shri Tandonand curfew was declared in Naroda P.S. area at about 12:30 hrs.Shri Pande has also stated that Ahmedabad City was totallydisturbed and communication as well as transport system had cometo standstill. According to Shri Pande, the additional force whereversent was unable to reach in time because the roads had been

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blocked/obstructed by the rioters by putting different kind ofobstacles and large crowds had collected making movementdifficult.

On 28-2-2002 at about 12:20 hrs, message was sent byPI Meghaninagar P.S. in the Control Room that Gulberg societyin Meghaninagar area which is Muslim society had beensurrounded by mob of 10,000, which was pelting stones andalso setting fire to shops nearby and rickshaws. He requested foradditional officers police personnel and SRP immediately. Onreceipt of this message, Shri P.C. Pande deputed three officersnamely Shri G.D. Solanki, Dy. SP, Group-VII, Shri Ajitkumar Gupta,Dy. SP, Group-XII and Shri A.B. Qureshi, PI, CID Crime to go toGulberg society for the assistance of PI Meghaninagar. At about13:45 hrs. one section of CISF was also sent to Gulberg society,Meghaninagar. At 1405 hrs., Shri M.K. Tondon, Jt. CP, Sector-IIsent message to the Police Control Room that Late AhesanJafri Ex-MP and others had been surrounded by the mob in Gulbergsociety and extra force and PI, Sardarnagar be sent there to shiftthem. At 14:14 hrs, another message was sent by Senior PI Erda,Meghaninagar P.S. in the Police Central Room that mob ofabout 10,000 persons had gathered at Gulberg society/Kalapinagarand was about to set fire to the entire society and as such ACP,DCP along with additional force be sent immediately. At 14:45hrs, Shri K.G. Erda, Sr.PI Meghaninagar sent another message tothe Control Room that in the Gulberg society in Meghaninagararea, the Muslims had been surrounded by mob of 10,000 personsfrom all the sides and even the police force had also beensurrounded and that the mob was about to set fire to the society.Shri Erda requested for additional SRP and police force to be sentas the situation was critical. Since, two Dy. SsP, One PI and onesection of CISF had already been sent to Gulberg society, noadditional force was sent as nothing was available as reserves.Shri Pande contacted Shri P.B. Gondia, the then DCP, Zone-IVat 15:16 hrs and told him that Muslims were being burnt in theGulberg Society and that he should reach there immediately.However, Shri Gondia reached Gulberg Society only at 1605 hrs.

At about 15:45 hrs, Shri M.K. Tandon, the then Jt. CP, Sector-IIthough fully aware of the situation at Gulberg Society sent amessage to Ahmedabad City Police Control Room asking as towhether there was any incident relating to loss of life at Gulbergsociety at Meghaninagar and thereof detailed report be sent tohim. No other information was available with the Control Roomat that time. Shri Pande has also stated that Shri K. Chakravarthi,the then DGP had also informed him that mob had surroundedthe Gulberg Society and that reinforcements should be sent there,to which he had informed him that extra force and officers hadalready been sent to Gulberg Society in Meghaninagar P.S. area.However, Shri Pande has claimed that he did not know as towhen the additional police force sent by him had actually reachedGulberg Society. He has stated that he had come to know aboutthe incident at Gulberg Society sometime in the evening and assuch personally visited the society sometime between 19:00 hrsto 19:30 hrs. Shri Pande found that the houses were ransackedand belongings set on fire and some wooden articles/furnitureetc. was still smoldering. According to Shri Pande, since the Jt.CP had already shifted most of the inmates of the society in vansto safer places, he gave instructions to the Sr. PI and other staffpresent over there to go ahead with the inquest and send the deadbodies for post-mortem examination. He returned to officethereafter.As per Shri Pande, Late Ahesan Jafri, Ex-MP did not contacthim either on his landline phone or mobile phone on 28-2-2002,seeking help. No one else from Gulberg society contacted himeither on his landline or mobile phone seeking help on 28-2-2002.The call detail records of official mobile phone no. 98250 48303of Shri Pande have been scrutinised and the same does not showany call from the landline no. 2125166 of Late Ahesan Jafri, Ex-MP. Shri Pande has further stated that as per his information,Late Ahesan Jafri, Ex-MP did not have any mobile phone andthere was no other landline in Gulberg Society.

Shri Pande has added that on 28-2-2002, requests werereceived from different police stations areas seeking additionalforce/SRP and whatever resources were available with him, the

same were dispatched to them. However, he found that nofeedback had been received from anyone of them. This led himto presume that the additional force reached them in time and thatthey were able to control the situation. Shri Pande is also of theview that similar was the case of Gulberg Society where initiallythree officers, two Dy. SsP and one Pl and subsequently onesection of CISF was sent by him.

Shri Pande also stated that on 28-2-2002 around 2 o’clockin the afternoon, he heard noise outside the CP’s office. Heimmediately checked and found that dargah adjoining CP officehad been attacked by mob. Since, there was no other forceavailable with him, he

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personally came down and went to the spot along with his gunman.He has claimed to have dispersed the mob almost single handedlyand waited there for sometime to ensure that the mob did not re-assemble. By this timely action, the dargah could be saved fromthe rioters.

Shri P .C. Pande has stated that the circumstances did notexist on 27-2-2002 or even 28-2-2002 to variant the imposition ofcurfew, in Ahmedabad City and any hasty action would have ledto the panic in the city. He has further stated that even otherwisewith limited force available enforcement of curfew poses seriousproblems and large scale breach becomes common. According toShri Pande, as and when the sector commanders reported overphone about the seriousness of the situation at any place, heimmediately concurred over telephone and ordered for theimposition as well as enforcement of the curfew. As per ShriPande, almost the whole of the city was under curfew by noontime. In view of this, there does not seem to be any deliberate andgross negligence on his part.

Shri Nisar Mohd. Malik, the then PSI, Police Control Room,Ahmedabad City, who was on Police Control Room duty from0800 hrs on 28-02-2002 to 0800 hrs on 02-03-2002, has statedthat he was not aware or any communications of Shri P. C. Pande,

the then CP, Shri M. K. Tandon, the then Jt. CP, Sector-II ShriShivanand Jha, the then Addl. CP, Sector-I or any other officer on28-02-2002 and 01-03-2002, which might have suggested/instructedfor inaction on the part of police while dealing with the Hindurioters. He has further stated that the instructions/messages ofthe senior officers, which were passed through Ahmedabad CityPolice Control Room, were for taking all the required measuresto control the riots and prevent any untoward incident. Shri Malikhas also stated that Shri P.C. Pande, the then CP had visited thePolice Control Room and passed on the instructions personally tothe jurisdictional officers to use effective force and control theriots. He does not remember the exact date and time of the saidmessage passed on by Shri Pande, but had noted down the saidinstructions in the message register of PCR, Ahmedabad City.He has also stated that as and when CP was made aware ofmessages regarding law & order situation, he had passed necessaryinstructions such as imposition of curfew and deployment ofmanpower. Shri Malik has denied the visit of Late Ashok Bhatt,the then Health Minister to the Control Room.Shri V.R. Patel another PSI, who was on duty in AhmedabadCity Police Control Room from 0800 hrs on 28-02-2002 to 0800hrs on 02-03-2002 has fully corroborated the statement of ShriNissarmohmad Malik, the then PSI.

Shri Shivanand Jha, the then Addl. CP. Sector-l, AhmedabadCity had stated that there were no instructions from any of thesenior officers not to act or to allow the Hindus to vent their anger.

Shri M.K. Tandon, the then Jt. CP, Sector-II had also statedthat no such instructions were given by any of the senior officersto allow the Hindus to vent their anger against Muslims in the lightof Godhra carnage and that the police should not act against them.Shri Tondon has further stated that on the contrary the instructionswere given to deal with the situation firmly.

Shri Pande has explained that the mobs had swelledto such an extent that they openly defied the curfew ordersand as and when they were challenged by the police, theyhid themselves in the lanes and after the police left theyregrouped. He is also of the considered opinion that this

Ahad happened due to the inadequate number of policemanon duty and those present could not leave the places wherethey were deputed. He stated that the police force wasengaged in particular area, the mobs concentrated on otherareas. Similarly, the fire tenders sent to Gulberg societyand Naroda could not reach there in time due to obstaclesBput on by the rioters resulting in loss of life and property inthese areas. He has also mentioned that the Meghaninagarand Naroda P.S. had never been communally sensitive inthe past and as such the attacks in Naroda Patiya andGulberg society were beyond their expectations. In viewCof the aforesaid position, the allegation that Shri Pande didnot take adequate actions to control the situation at GulbergSociety is not established.

Observation made by Ld. Amicus Curiae:

The observation of Shri Modi in television interview on01-03-2002 clearly indicates that there was an attempt tojustify the violence against the minority community. Thisindicates as certain approach. The statement made by ShriModi cannot be seen in isolation. It has to

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be seen in conjunction with other facts mentioned hereinabovewhich provides sufficient justification for detailedinvestigation in the matter.

FResult of further investigation:

During further investigation, requisition was sentto the Zee TV to make available copy of the CD of atelevision interview of Shri Narendra Modi, Chief Minister,Gujarat conducted by their correspondent Shri SudhirChaudhary on 01.03.2002. Despite two reminders and anotice u/s 91 Cr.P.C. sent to them, the CD has not beenmade available.

Shri Sudhir Chaudhary has stated that he attended apress conference held by Shri Narendra Modi on

01-03-2002, at Circuit House on the outskirts ofGandhinagar. He has further stated that Shri Narendra Modiwas known to him and that he had interviewed him earlierseveral times in Delhi. Shri Sudhir Chaudhary has statedto have requested Shri Narendra Modi for short interviewafter the conference to which the latter agreed and as suchhe was interviewed for about 10 minutes. After goingthrough the Editor’s Guild Fact Finding Mission reportdated 03.05.2002, Shri Chaudhary has stated that the samewere only few excerpts from the said interview and thatthe original CD of the said interview was not before him.As per his recollection, he had questioned Shri NarendraModi about the Chamanpura massacre (Gulberg SocietyCase), in which former Congress MP Late Ahesan Jafrihad been killed with many others to which the ChiefMinister had replied that the mob had reacted on accountof private firing done by Late Ahesan Jafri, Ex-MP. Afterrefreshing his memory from the Editor’s Guild report, ShriSudhir Chaudhary has stated that the Chief Minister wasof the view that he neither wanted action nor reaction. Hehas further stated to have questioned the Chief Ministerabout the wide spread violence post Godhra, the ChiefMinister stated as follows:-

“Godhra main jo parson hua, jahan par chalees (40)mahilaon aur bacchon ko zinda jala diya is main deshmain aur videsh main sadma pahuchna swabhavik tha.Godhra ke is ilake ki criminal tendencies rahi hain. Inlogon ne pahele mahila teachers ka khoon kiya Aur abyeh jaghanya apraadh kiya hai jiski pratikria ho rahi hai”.

Shri Sudhir Chaudhary has shown his inability toelaborate the same as he has not been able to recollect theexact sequence of events after span of 9 years andmoreover, the CD was not before him.

Shri Narendra Modi had been questioned about theaforesaid interview given to Zee TV on 01.03.2002. He hasstated that those who have read the history of Gujarat woulddefinitely be aware that communal violence in Gujarat has

long history and the State had witnessed serious incidentsof such communal violence. As regards the Zee TVinterview of 01.03.2002 is concerned, Shri Modi has statedthat after period of eight years, he did not recollect theexact words, but he had always appealed only and only forpeace. He (Shri Modi) had further stated that he had triedto appeal to the people to shun violence in straight andsimple language. He had also stated that if his words citedin this question are considered in the correct perspective,then it would be evident that there is very earnest appealfor people refraining from any kind of violence. He haddenied all the allegations against him in this regard.Regarding the statement made to the media aboutpost Godhra riots by citing Newton’s law that every actionhas equal and opposite reaction, Shri Narendra Modi hadstated that the Times of India had published news itemon 03.03.2002, purportedly as though he had given aninterview to them. According to Shri Modi, the truth is thatnobody had met him in this regard. He had further statedthat the falsehood of his so-called justification “Action-Reaction Theory” is evident from this fact. According toShri Modi, the State Govt. issued denial with regard tohis not having given any interview and the same wasbelatedly published in remote corner of the newspaper.He had also stated that it had been his considered opinionthat violence can not be replied by violence and he hadappealed for peace. As per Shri Modi’s version, he had notand would never justify any action or reaction by mobagainst innocents. He had denied all allegations in thisregard.

The recommendations made in Chart ‘B’ by the Ld.Amicus Curiae vis-a-vis comments of SIT are given below:-

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Chart-’B’

ABCDEFGH

SPECIFIC RECOMMENDATIONS FOR SIT:-

(i) Shri M. K. Tandon and Shri P.B. Gondia be prosecutedu/s 304A IPC

(ii) The SIT may examine the role of the InvestigatingAgency in the Bilkisbano rape case and makerecommendations to this Hon’ble Court, whether it revealscommission of any criminal offence or misconduct.

(iii) The SIT may be directed to look into the role of theCrime Branch officers, namely DCP Vanzara and ACP

328SUPREME COURT REPORTS

AChudasama as to their role in the investigation of GulbergSociety and Naroda Patiya cases.

(iv) The SIT may examine the role of the prosecuting agencyin Best Bakery case and recommend suitable action againstthose who are responsible.

(v) SIT may look into the role of police officials in theGulberg Society and Naroda Patiya cases (apart from thosewho are already facing charges).

SPECIFIC RECOMMENDATIONS IN RELATION TOGOVERNMENT OF GUJARAT.

(i) Departmental action, as suggested by the SIT, be takenagainst K. Kumaraswamy, the then Jt. CP Baroda City andRamjibhai Pargi, former ACP.

(ii) As recommended by the SIT, departmental action be takenDagainst Shri Tarun Barot, Inspector and Shri G.S. Singhal, ACPCrime Branch for faulty investigation of the riots cases.

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The aforesaid recommendations of the Ld. Amicus CuriaeEwould show that he concurred with the findings of SIT with regardto Allegations No.lX & XXIII. Further, as regards Allegation No.XV, Ld. Amicus Curiae has opined that the issue may not survivebecause of the intervention of the Hon’ble Supreme Court,whereby Public Prosecutors have been appointed in anFindependent manner.

The recommendations made by Ld Amicus Curiae inChart - ‘B’ have been examined and the comments on thesame were as follows:-

SPECIFIC RECOMMENDATIONS FOR SIT:

Observation made by Ld. Amicus Curiae:

Shri M.K. Tondon and Shri P.B. Gondia be prosecuted u/s304A IPC.

Result of further investigation:

Ld. Amicus Curiae has recommended that ShriM.K.Tandon (the then Joint Commissioner of Police,Ahmedabad city) and Shri P.B Gondia (the then DeputyCommissioner of Police, Ahmadabad City) should beprosecuted u/s 304-A IPC. Role and evidence available onrecord [after further investigation of three cases(Meghaninagar Police Station I.CR No.67/2002, NarodaPolice Station I.CR Nos. 100/2002 & 98/2002)] against ShriTandon and Shri Gondia was analysed and it was found thatthe same is not adequate to launch prosecution of the abovetwo officers. For understanding the issue in hand, detailsof this cases/evidence are given below:

Brief facts :

(I) Meghaninagar P. Stn. I. CR No.67/2002 (GulbergSociety):

call for Gujarat Bandh on 28.02.2002 was given by VHP,which was supported by ruling-BJP, to protest against the killingof Karsevaks at Godhra Railway Station on 27.02.2002. Anunlawful mob of around 20,000 Hindus, armed with deadlyweapons attacked shops and houses of Muslims residing in GulbergSociety on 28.02.2002 morning /afternoon resulting in death of 39persons and injuries to 15 others. 31 Muslim individuals wentmissing, Shri Ahesan Jaffri, ex-MP fired in self defence from hisprivate licensed weapon resulting in injuries to 15 persons in themob, out of which one died later. Police fired 124 rounds to dispersethe mob resulting in death of 4 rioters. On the complaint of PoliceInspector of Meghaninagar Police Station Shri K. G. Erda, theabove case was registered under different sections of IPC relatingto unlawful assembly, murder, Bombay Police Act and Arms Actagainst 11 named individuals and unknown others. Afterinvestigation, 11 charge sheets were filed against 71 individualswhile 2 persons were arraigned as accused by the trial Court u/s319 Cr.PC. Recording of prosecution evidence in that Trial Courtis over and arguments are continuing.

(II) Naroda Police Station I. CR No. 98/2002 (Naroda GaamCase) :

During the above-mentioned Bandh on 28.02.2002, anunlawful mob of 5,000 to 7,000 rioters gathered around NarodaGaam area around 12:00 hours and attacked the houses, shopsand vehicles with the inflammable materials killing 8 Muslimindividuals; 3 victims went missing. On the complaint of ASI Valaof Naroda Police Station, case was registered under differentsections of IPC and Bombay Police Act. Though only 5 personswere named in the FIR, 86 persons were charge-sheeted in I0different charge-sheets filed over the years. Presently the trial isgoing-on.

(IIl) Naroda Police Station I. CR No. 100/2002 (NarodaPatiya):

In yet another major incident on the above mentioned Bandhday, an unlawful mob of 15,000 to 17,000 attacked the houses ofMuslims situated in Hussein-ni Chali, Naroda Patiya and nearbyareas between 11:00 hours and 20:00 hours killing 58 Muslimindividuals. 15 rounds were fired by the police to control the mob.Later, it was found that total 85 persons were killed including 2 inpolice firing. On the complaint of PSI V. K. Solanki of NarodaPolice station, the above case was registered under differentsections of IPC and Bombay

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Police Act against 5 named individuals and unknown others. 70persons were charge-sheeted in 8 charge-sheets. The case ispresently under trail.

Facts/Sequence of events establish during investigation:

Enquiry by Shri A. K. Malhotra, Member, SIT / earlierinvestigation / further investigation has established the following:

(A) Shri M. K. Tandon was Joint Commissioner of Police, Sector-Il, Ahmedabad City during the relevant period. Sector-Il comprises3 Zones (Zone-IV, V & VI) and covered 15 police stationsincluding Meghaninagar and Naroda. Certain police stations inhis jurisdiction namely, Dariapur, Gomtipur; Rakhial and Bapunagarwere traditionally communally sensitive while Meghaninagar andNaroda did not have history of serious communal riots though

these also had few Muslim pockets. Each Zone is headed by aDeputy Commissioner of Police (DCP). Shri P. B. Gondia wasposted as DCP Zone-IV, who had jurisdiction over Meghaninagar,Naroda Dariapur, Shahibaug and Sardarnagar Police stations.

(B) Though Shri Tandon had received information regardingGodhra train incident as well as the proposed VHP Bandh on28.02.2002 on the morning of 27.02.2002 itself, he did not heldany formal meeting with DCsP/SHOs or chalked out any plan tohandle the law and order situation on the coming day. In fact, nomajor preventive police action was taken. Similarly, no meeting ofSHOs/chalking out of law and order plan was done by Shri P.B.Gondia, DCP.

(C) Shri Tandon was allotted 1 Coy of State Reserve Police (SRP)for the Bandh day, which was distributed among 3 DCsP (1 Platooneach). During his movements on 28.02.2002. Shri Tandon washaving Striking Force comprising 2 Police Sub-Inspectors and afew armed men in 2 vehicles.

(D) In the morning of 28.02.2002, Shri M. K. Tandon left forDariapur P.S. as it was considered communally very sensitive.On the way around 1035 hours, he received wireless messagefrom Assistant Commissioner of Police, ‘G’ division requestingPolice Control Room to send more vehicles to Naroda Patiyaarea. In view of this message, he changed his route towards NarodaPatiya. En route, he inquired about location of Sr. PI ofMeghaninagar P.S. and after having learnt that he had gone toGulberg Society due to some problem there, he proceeded towardsthe same and reached there around 1130 hours.

In the meantime, Shri P. B. Gondia, DCP receivedinformation regarding trouble at Naroda Patiya/ Naroda Gaamand reached Naroda Patiya at about 1100 hours. Inspector ShriMysorewala of Naroda P.S, and ACP Shri M. T. Rana were alreadythere to deal with mob which had gathered in large numbers.

(E) Shri M K. Tandon found mob of around 1,000 Hindu riotersaround Gulberg Society and ordered for bursting of tear gas shellsand lathi charge by his Striking Force. Official records suggestthat six tear gas shells were fired by the Striking Force attachedto Shri Tandon at that time. As result, the mob got dispersed in

the lanes/by-lanes near Gulberg Society. It is believed that ShriTandon also met late Shri Ahesan Jafri, ex-MP and certain otherresidents of Gulberg Society who were assured of strengtheningthe police presence there. Though witnesses claim that LateAhesan Jafri had met the Commissioner, investigation has revealedthat Shri P.C. Pande, the then CP, Ahmedabad City had not visitedthe Gulberg Society at that time. So most likely, Late Jafri hadmet Shri M. K. Tandon, the then Jt. CP, Sector-Il. However, ShriTandon denies this fact. Around 1150 hours Shri M. K. Tandonleft for Naroda Patiya.

(F) On reaching Naroda Patiya area around 1220 hours ShriTandon found the situation to be very explosive and requestedCommissioner of Police for imposition of curfew in Naroda Patiya.The Commissioner of Police, Ahmedabad City agreed with therequest made by Shri Tandon and curfew was imposed at 1230hrs.

(G) Significantly, Shri P. B. Gondia received massage at 1235hrs from Sr. PI, Meghaninagar about the grave situation at GulbergSociety where mob of around 5,000 had reportedly gathered.

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(H) Around 1240 hours, Shri M. K. Tandon left Naroda Patiyafor Dariapur Police Station area ostensibly on the ground that itwas communally hyper sensitive. Incidentally, Shri Tandon didnot take any concrete action, at Naroda Patiya except requestingfor imposition of curfew. As per call detail records he was inBapunagar-Rakhial area between 1241 hrs and 1325 hrs. Further,he remained in Dariapur and Kalupur Police Stations area between1351 hours and 1542 hours.

(I) At about 1220 hrs and 1230 hrs, Sr. PI Erda of MeghaninagarP.S. sent alarming messages to Police Control Room about thecritical situation at Gulberg Society requesting for reinforcements.

(J) Around 1405 hrs, Shri Tandon sent message to Control Roomto send additional force for shifting Late Ahesan Jafri and otherswho had been surrounded by mob in the Gulberg Society. ShriTandon did not bother to inquire about the latest position till 1545

hrs when he asked Control Room to check-up as to whether therewas any incident relating to loss of life in Gulberg Society. By thattime, the Society had been set ablaze and lot of lives including thatof Late Ahesan Jafri had been lost.

(K) Shri. P. B. Gondia sent Shri V. S. Gohil, IInd Police Inspector,Naroda P.S. to Naroda Gaam around 1300 hrs due to criticalsituation there. He also ordered police firing in Naroda Patiyaarea, which resulted in death of 1 Hindu and 1 Muslim miscreant.As per police records, during this period, 48 rounds (22 rounds of9 mm + 26 rounds of 303) as well as 95 tear gas shells were firedby the Striking Force of Shri P.B. Gondia. He left Naroda Patiyaat 14:20 hrs ostensibly to go to Pithadiya Bambha (Dariapur P.S.)in view of some trouble there. (However, in signed statementmade earlier in point of time to Shri A.K Malhotra, Member, SITduring inquiry, he has claimed that he had left for Hotel Moti Manorowned by Muslim and Rosary School in Shahibaug area, whichwere being set on fire).

(L) On way to Pithadiya Bambha, Shri P. B. Gondia receivedinstructions from CP Ahmedabad City at 1516 hrs to go to GulbergSociety and he reached there sometime around 1600 hrs. ShriM.K. Tandon arrived at Gulberg Society thereafter and arrangedfor prisoner vans, ambulances etc. for safe shifting of 150 survivorsof Gulberg Society to Shahibaug police station.

(M) Late after the departure of Shri M. K. Tandon, Shri P. B.Gondia, ACP Shri M. T. Rana and PI Shri K. K. Mysorevalafrom Naroda Patiya area, major incident of rioting took placebetween 1800 hrs and 1830 hrs there in which 85 persons werekilled and 13 persons went missing. Five VHP activists were namedas accused in the FIR.

(N) Shri M. K. Tandon was in touch with certain accused personsof Naroda Patiyal/Naroda Gaam cases. He had received 2telephone calls on 01.03.2002 at 1137 hrs for 250 seconds and1256 hrs for 161 seconds from accused in Naroda Patiya caseJaydeep Patel of VHP and 2 calls on 01.03.2002 at 1458 hrs for32 seconds and 1904 hrs for 61 seconds from accused Dr.Mayaben Kolnani.

(O) Shri P. B. Gondia was also in touch with some accused personsof Naroda Patiya/Naroda Gaam cases. He had received 3 callson his Mobile phone from Dr. Mayaben Kolnani on 28.02.2002,01.03.2002 and 02.03.2002 at 1039 hrs, 1339 hrs and 1249 hrsrespectively. He had also received 3 calls on 28.02.2002 at 1140hrs, 1152 hrs and 1220 hrs, 2 calls on 01.03.2002 at 1004 hrs and1135 hrs and 2 calls on 02.03.2002 at 1156 hrs and 1848 hrs fromaccused Shri Jaydeep Patel.

Role of Shri M.K. Tondon:

During further investigation efforts were made to ascertainwhether Shri M.K. Tandon could be part of the conspiracy ofthese offences. However, no evidence has come on record toestablish that he was party to criminal conspiracy hatched bythe rioters. Normally conspiracy is hatched secretly and onlycircumstantial evidence is available to establish the same. In caseof Shri Tandon, certain actions on his part suggest his bonafideintentions to control the riots. Initially he visited Gulberg societyand lobbed tear gas shells and dispersed the mob. Subsequentlyhe proceeded to Naroda Patiya and on his advice curfew wasimposed in Naroda

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Patiya area by the Commissioner of Police, Further, from NarodaPatiya area, he went to Dariapur which was communally verysensitive.

As far as telephonic contact with accused persons namely,Dr. Mayaben Kodnani and Shri Jaydeep Patel is concerned, ithas come to light that Dr. Kodnani was MLA from Narodaconstituency and Shri Jaydeep Patel was Joint General Secretary,VHP, Ahmedabad Unit. These individuals were interrogated butthey expressed inability to recollect the conversations and claimedthat the same must be about the prevailing law and order situation.As regards the telephone calls made day after the offence,from certain local leaders who were later prosecuted in the offenceby itself does not make an individual part of the conspiracyunless the contents of the conversation are known. In view of

this. it would not be appropriate to conclude just on the basis oftelephone calls that he was part of the conspiracy.

Investigation has revealed that Shri Tandon got the mobdispersed outside Gulberg Society around 1130 hrs. However, hedid not take any step to strengthen the hands of Shri K.G. Erda,Sr. Pl by providing him some additional force as requested by thelatter despite the fact that he had assured late Ahesan Jafri andothers.

Investigation has revealed that 1 platoon of SRP was allottedto DCP Zone-IV and that had reported at Naroda Patiya at about1245 hrs and was deployed there. As cremation of 12 Karsevakswho had died on previous day in Godhra train incident was also totake place in Hatkeshwar cremation ground, which was also inthe jurisdiction of Shri M.K. Tandon, he had some justification toleave Naroda Patiya for communally hyper sensitive areas in hisjurisdiction. Furthermore, DCP Shri P. B. Gondia, along with ACPM T Rana, were already there at Naroda Patiya for handling thesituation.

Investigation revealed that Dariapur was traditionallycommunally hyper sensitive. On the day between 1215 hrsand 2100 hrs, one person had been killed in police firingand one Masjid was heady damaged, besides setting ofLunsawad police post on fire by miscreants. However,records of that period do not reveal any action taken byShri M. K. Tandon at any of the locations in Dariapur.Further, there is no mention of any firing done at any of theplaces under his orders. The objective assessment of thesituation reveals that Shri Tandon did not appreciate thecircumstances professionally and acted in negligentmanner by not taking any appropriate action about the gravesituation at Gulberg Society/Naroda Patiya area. It wouldnot be out if place to mention here that Shri M.K. Tandonwas very well aware about the situation at Gulberg Societyin as much as he had sent message to the Police ControlRoom at 1405 hrs on 28.02.2002, that late Ahesan Jafriand others had been surrounded by mob and were requiredto be shifted immediately. Despite the fact that he was wellaware of the inflammatory situation at Gulberg society, yet

he chose not to go there. However, it is pitiable to notethat he sent message at 1545 hrs asking there was anyloss of life at Gulberg society and if so, detailed reportshould be given to him. As Joint Commissioner of Police,he was expected to monitor and keep track ofdevelopments throughout his jurisdiction especially whenhe had left the locations at Gulberg Society and NarodaPatiya which were by no means peaceful at that time. Heleft the locations at the mercy of concerned PI (in the caseof Gulberg Society) and DCP (in the case of Naroda Patiya)and did not bother to inquire/take corrective actions though,he had come to know of the gravity of the situations.

Role of Shri P. B. Gondia

Investigation revealed that Shri P. B. Gondia had received3 calls on his Mobile phone from Dr. Mayabern Kodnani on28.02.2002, 01.03.2002 and 02.03.2002 at 1039 hrs, 1339 hrs and1249 hrs respectively. He had also received 3 calls on 28.02.2002at 1140 hrs, 11.52 hrs and 1220 hrs, 2 cal!s on 01.03.2002 at 1004hrs and 1135 hrs and 2 calls on 02.03.2002 at 1156 hirs and 1848hrs, from accused Shri Jaydeep Patel. Dr. Mayaben Kodnani,Shri Jaydeep Patel and Shri P. B. Gondia have taken the plea thatthey were unable to recall the exact contents of these phone callsand claimed that these must be in connection with law and ordersituation. Notably, all these calls were incoming as far as ShriP. B. Gondia is concerned. As Dr. Kodnani was the local MLAand Shri Jaydeep Patel, local leader, the reason given by them isprobable. Shri Gondia claimed that 7 rioters had been killed as aresult of police firing ordered by him. Police records show that110 rounds of bullets and 183 teargas shells were fired by thepolice personnel under him on 28.02.2002 though it did not showany firing resorted to personally. Furthermore, from Naroda Patiyahe went towards Pithadiya Bambha from where some incidentsof rioting

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had been reported. In any case, he was instrumental in controllinga riot situation at Moti Manor Hotel and Rosary School on theway.

Investigation has further revealed that he had left NarodaPatiya at 1420 hrs despite the fact that huge of mob of Hinduand Muslim rioters had gathered there while the curfew was inforce. His leaving the location for Pithaliya Bambha was totallyunjustified, especially when there was no information of anysituation being graver there than at Naroda Patiya. In case, ShriGondia realized that he was in position to leave the location,then he should have gone to Gulberg Society and not to PithaliyaBambha. Shri Tandon has stated that on receipt of messagefrom Shri K.G. Erda at 1445 hrs that the Gulberg society hadbeen surrounded by mob and was about the set fire to the same,he had directed Shri PB. Gondia to reach Gulberg societyimmediately. Though this fact has been mentioned by Shri M K.Tandon in his affidavit filed before the Nanavati Commission inJuly, 2002, yet he has not been able to explain as to how thisdirection was given to Shri Gondia as there is no Control Roommessage or mobile phone call to Shri Gondia at this point of time.However, Shri Gondia has denied having received any suchinstructions from Shri Tandon.

As indicated earlier, sufficient evidence has not come onrecord regarding police involvement of these two police officersin the conspiracy/abetment of the offences. However, theydemonstrated profound lack of judgment that seriously underminedtheir credibility and damaged their effectiveness in dealing withthe situations. All the three major incidents took place in areaunder their control and they left the locations for handling by thejunior officers. They did not take any preventive action on27.02.2002, while any police officer worth the name could imaginethe seriousness of the situation.

Ld. Amicus Curiae has recommended prosecution ofaforesaid two officers u/s 304A IPC. In view of thisrecommendation, available evidence was analysed to assesswhether the inaction on the part of these two officers, was of thenature of Criminal negligence or professional misconduct.

The basic requirements for prosecution under the abovesection are that the acts (including omission) must be rash ornegligent. Here the issue is whether the acts of Shri M.K.Tandonand Shri P.B. Gondia would amount to criminal negligence justifying

their prosecution. Their actions need to be seen and analysed inthe proper perspective and situation prevalent on that day. Thefollowing actions would analyse the role played by Shri M.K.Tandon.

a. In the morning of 28.02.2002 he had left for Dariyapur PoliceStation (communally hyper-sensitive). On the way at 1035 hrs, hehad heard wireless message of ACP ‘G’ Division requestingcontrol to send more vehicles to Naroda Patiya. In view of thismessage, he proceeded towards Naroda Patiya. En-route he askedlocation of Senior Police Inspector of Meghaninagar Police Stationand after having learnt that he was at Gulberg Society, he proceededthere and reached Gulberg Society at about 1130 hrs. At thattime, mob of around 1000 Hindu rioters had gathered there. ShriTandon had ordered bursting of tear gas shells and lathi chargethrough his striking force. As result of this action, the mob wasdispersed in the lanes and by-lanes near Gulberg Society.

b. Around 1200 hrs. Shri Tandon left for Naroda Patiya. At 1220hrs he had made phone call to Commissioner of Police andrequested for imposition of curfew in Naroda Patiya. Curfew wasimposed in Naroda Patiya area at 1230 hrs.

c. He had informed Commissioner of Police, Ahmedabad Cityregarding the situation at Naroda Pariya through phone call at1237 hrs. He also informed CP regarding the funeral processionof Kar-sevaks. The Commissioner of Police instructed him to goto Dariapur, as the Dariapur Police Station is communallyhypersensitive. As ACP of Dariapur was on leave and presenceof senior officer was required there, he had left for Dariapur.Therefore, his leaving the spot for known communally hyper-sensitive place does not amount to criminal negligence though itcould be an error of judgment/ poor appreciation of the situation.

d. During the investigation of offence at Naroda Patiya, it hasbeen established that the incident took place after 1800 hrs. WhenShri Tandon left Naroda Patiya around 1240 hrs, then Senior PoliceInspector of Naroda Police Station along with his force, ACO‘G’Division along with his force, DCP Zone IV and his striking forceand one platoon of State Reserve Police were

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present there. Therefore, it was not possible to envisage that suchan incident might take place at Naroda Patiya.

e. Shri M.K Tandon has stated that first wireless messageregarding the situation at Gulberg, Society was received at 1414hrs on his wireless handset. He has further stated that he had notreceived the messages passed by Senior Police Inspector ofMegharinagar P.S. at 1225 hrs and 1238 hrs as the situation wasvery noisy in Naroda Patiya area and he was using public addresssystem of his vehicle for declaration of curfew and ordering themob to get dispersed.

f. Regarding the situation at Gulberg Society, Shri M.K. Tandonhas stated that he was informed by an unknown Muslim individualthat late Ahesan Jafri, Ex-MP and other Muslims of Gulberg Societyneed to be shifted immediately. However, his enquiries with ControlRoom revealed that additional force of two DySsP, one inspectorand one section of CISF had been sent to Gulberg Society, as perorders of Commissioner of Police.

g. Shri M.K. Tandon has claimed that he had called Commissionerof Police on his mobile phone at 1425 hrs and discussed thesituation. As per his statement, taking the communal sensitivity ofDariapur in consideration, leaving Dariapur without any seniorpolice officer could have lead to drastic consequences as ACPwas on leave and DCP was busy in handling the law & ordersituation elsewhere.

Following actions by Shri P.B.Gondia are relevant todecide as to whether he was liable for criminal negligence:-

a. As per call details of mobile phone of Shri P.B.Gondia for28.02.2002, he was in Dariapur Police Station area (which iscommunally hypersensitive) since 0830 hrs. Further, on receipt ofan information regarding trouble at Naroda Patiya/ Narode Gaam,he had reached there around 1100 hrs. He was allotted one platoonof State Reserve Police, which he had deployed at Naroda Patiyaand Naroda Gaam. Curfew was imposed at Naroda Patiya at1230 hrs.

b. He had ordered police firing at Naroda Patiya which had resultedin death of one Hindu and one Muslim rioter. Shri P.B. Gondiahad left Naroda Patiya at 1420 hrs on receiving message regardingtrouble at Pitadiya Bamba in Dariapur. Pitadiya Bamba had ahistory of serious communal violence in the past.

c. At 1516 hrs, he had received instructions from Commissionerof Police, Ahmedabad City to go to Gulberg Society where hereached around 1600 hrs and took measures to disperse the moband rescue the survivors.

d. During the investigation of the case, it has been establishedthat the incident at Naroda Patiya, in which major loss of livestook place occurred after 1800 hrs, i.e., approximately four hoursafter Shri Gondia had left the spot. In any case, the killings hadtaken place at corner location in the lane which was away fromthe main road where police personnel were stationed and handlingthe mobs belonging to the two communities. In view of this, theredoes not appear to be any direct nexus of these killings with ShriP.B. Gondia, who had left the spot at about 1420 hrs.

e. On 28.02.2002, he had ordered firing of 110 rounds of bulletsand 183 tear gas shells to disperse the rioters at different locationswhich lead to killing of 7 rioters (including 6 Hindus).

Section 304A means an act which is the immediate causeof death and not an act or omission which can be said to be aremote cause of death. It is necessary to show an immediatenexus between the wrongful act of an accused and the injuriesreceived by another. In order to constitute the offence, the deathshould have been the direct result of rash and negligent act thatmust be proximate cause without intervention of any third factor.Furthermore, in case of criminal negligence, it must be gross andnot which is merely an error of judgment or arises because ofdefect of intelligence.

Therefore, considering all the circumstances,evidence on record and the defence available with thesuspect police officers namely Shri M.K.Tandon and ShriP.S. Gondia, it may not be viable to prosecute them for theoffence u/s 304-A IPC as proposed by Ld. Amicus Curiae.

It is worth mentioning here that inspite of best efforts, noadditional evidence (other than already

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available) which could help in fixing, criminal liability u/s304A IPC of these two individuals could be brought onrecord during further investigation However, the conductof Shri M. K. Tandon, the then Joint CP. Ahmedabad City(since retired) and Shri P. B. Gondia, the then DCP,Ahmedabad City was unprofessional and unbecoming ofsenior police officers.

Observation made by Ld. Amicus Curiae:

The SIT may examine the role of the Investigating Agency inthe Bilkis Bano rape case and make recommendations to thisHon’ble Court, whether it reveals commission of any criminaloffence or misconduct.

Result of Further Investigation:

The Bilkis Bano rape case has investigated by the CBlunder the orders of Hon’ble Supreme Court of India. Thecase has ended it conviction of 12 accused persons andacquittal of 8 accused persons. The appeals againstconviction are now pending in the High Court. CBI hadalready recommended Regular Departmental Action formajor penalty against five police officers for the lapses ontheir part.

Observation made by Ld. Amicus Curiae:

The SIT may be directed to look into the role of the CrimeBranch officers, namely DCP Vanzara and ACP Chudasamaas to their role in the investigation of Gulberg Society andNaroda Patiya cases.

Result of Further Investigation:

Departmental action has been recommended againstShri S.S. Chudasma, the then ACP, Crime Branch (since

Retd.). The role played by Shri D.G. Vanzara, the then DCP,Crime Branch (now under suspension), who is in judicialcustody in “Sohrabuddin fake encounter case” since 2007has been re-examined with view to ascertain the lapses,on his part. However, no fresh material has come on recordto establish the same.

Observation made by Ld. Amicus Curiae:

The SIT may examine the role of the prosecuting agency inBest Bakery case and recommend suitable action againstthose who are responsible.

CResult of Further Investigation:

The Best Bakery case was investigated by the GujaratPolice and the same ended in acquittal of all the accusedpersons in trial conducted at Baroda in Gujarat. However,subsequently the case was remanded by the Hon’bleDSupreme Court of India for retrial under the jurisdictionof Bombay High Court and the same ended in the convictionof 9 accused persons and the acquittal of 8 accused persons.

Observation made by bd. Amicus Curiae:

SIT may look into the role of police officials in the GulbergESociety and Naroda Patiya cases (apart from those who arealready facing charges).

Result of Further Investigation:

Govt of Gujarat would be requested to initiate appropriateFaction against the concerned officials for various administrativelapses on their part.

SPECIFIC RECOMMENDATIONS IN RELATION TOGOVT. OF GUJARAT:

Observations made by Ld. Amicus Curiae:

Departmental action, as suggested by the SIT, be taken againstK. Kumaraswamy, the then Jt.CP, Baroda City and RamjibhaiPargi, former ACP.

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As recommended by the SIT, departmental action be takenagainst Shri Tarun Barot, Inspector and Shri G.L. Singhal,ACP, Crime Branch for faulty investigation of the riots cases.

Result of Further Investigation:

As discussed above the recommendations made bythe Ld. Amicus Curiae, have been agreed upon and furthernecessary action in the matter is being recommended tothe Govt. of Gujarat.

The recommendations made in Chart ‘C’ by the Ld.Amicus Curiae vis-a-vis comments of SIT are given below:-

Chart-‘C’

It may thus be seen that the Ld. Amicus Curiae has agreedwith the fundings of SIT in respect of Allegations No. II, III, VI,VIII, XIV, XVI, XIX, XX, XXIV, XXVII, XXVIII, XXIX, XXXI &XXXII and has recommended to the Hon’ble Supreme Court ofIndia that the recommendation of SIT may be accepted in respectof these allegations. Further, as regards Allegations No. XIII,XVII, XVIII & XXVI the Ld. Amicus Curiae is of the view thatthe issued were not very material and, therefore, recommendedthe same to be dropped. However, as regard the Allegation No.XXX, the Ld Amicus Curiae opined that the allegation would getcovered in the case the request for further investigation wasaccepted by the Hon’ble Supreme Court of India. The Ld. AmicusCuriae has also opined that the further investigation conductedby the SIT u/s 173(8) Cr.PC about the involvement of Shri

AGordhan Zadafia has revealed that there is lack of evidence tosuggest his involvement in the riots and that this findings of theSIT appears to be acceptable.

As ordered by the Hon’ble Supreme Court of India, thematter was listed for hearing on 05.05.2011, when the followingBorder was passed:-

“Pursuant to our order dated 15[th] March, 2011, the Chairman,Special Investigation Team (SIT) has filed report on thefurther investigations carried out by his team along with hisremarks thereon. Statements ofwitnesses as also, theCdocuments have been placed on record, in separate volumes.Let copy of all these documents along with the report of theChairman be supplied to Mrs. Raju Ramchandran, theLearned Amicus Curiae.

The learned Amicus Curie shall examine the report, analyseDand have his own independent assessment of the statementsof the witnesses recorded by the SIT and submit his commentsthereon. It will be open to the learned Amicus Curiae to interactwith any of the witnesses, who have been examined by theSIT, including the police officers. as he may deem fit.

EIf the learned Amicus Curie forms an opinion that on the basisof the material on record, any offence is made out againstany person, he shall mention the same in his report.

List on 28[th] July, 2011 at 3:00 p.m.”

Pursuant to the aforesaid order passed by the Hon’bleFSupreme court of India the Ld. Amicus Curie submittedhis report dated 25.07.2011. In his report, Ld. AmicusCuriae agreed with the findings of the SIT on the followingissues and opined that the same are acceptable:-

I.That though he had observed in his note datedG20.01 .2011 that late Haren Pandya, the then MoS forRevenue could have been present in the meeting on27.02.2002, yet considering the material gathered bythe SIT and that further investigation report of the SIT,he agrees with the SIT that late Haren Pandya couldnot have been present in the meeting on 27.02.2002

and therefore, his (late Haren Pandya) statementregarding the alleged statement made by Shri Modi inthe aforesaid meeting may be disregarded.

II. That he would also agree with the findings of SIT thatthe statement made by Shri R.B. Sréekumar, the thenAddl. DG (Int.) to Shri K. Chakravarthi, the then DGPwould be

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hearsay evidence not saved by res gestae and therefore,would be inadmissible in evidence.

III That as far as SIT’s conclusion with regard to the stepstaken by Shri Narendra Modi to control the riots inAhmedabad City is concerned, the same may beaccepted.

IV. That as far as the observations of the Chairman, SITon the handing over of the bodies of the Godhra victimsto Shri Jaydeep Patel are concerned, the same may beaccepted.

V.That as far as the observations of the SIT with regardto the Chief Minister’s statement on television on01.03.2002 are concerned the same may be accepted.

VI. That as far as SIT’s observations with regard to thealleged inaction of Shri P.C. Pande, the thenCommissioner of Police, Ahmedabad City areconcerned, no comment is necessary at this stage asan application u/s 319 Cr.PC, has been filed in respectof Shri P.C. Pande also, and the sane may be dealt withby the concerned Court in accordance with law, in thesame manner as suggested in respect of Shri M.K.Tandon and Shri P.B Gondia.

Shri Raju Ramchandran, Amicus Curiae has come tothe conclusion that at this prima facie stage offences inter-alia u/s 153 A(1)(a) & (b), 153B(1) (c),166 and 505(2) IPCare made out against Shri Narendra Modi. He has further

Astated that it would be for the Court of competentjurisdiction to decide whether Shri Modi has to besummoned for any or all of these offences or for any otheroffences. These findings are based on the followinggrounds :-

Ba.That Shri Sanjiv Bhatt has brought his former driverShri Tarachand Yadav and had submitted his affidavitsworn on 17.06.2011, which supports Shri Bhatt’sversion that he had gone to the residence of the ChiefMinister on 27.02.2002.

Cb.That Shri Sanjiv Bhatt submitted an affidavit of Shri K.D.Panth, Constable affirmed on 17.6.2011 supporting theversion of Shri Bhatt about going to Chief Minister’sresidence on the night of 27.02.2002.

c.That Shri Rahul Sharma, DIG submitted an analysis ofDthe call records of senior police officers, which accordingto Shri Sharma corroborates the statement of ShriBhatt.

d.That though Shri Sanjiv Bhatt has been contending thathe would speak only when under legal obligation toEdo so, his conduct after making statement u/s 161Cr.PC has not been that of detached police officer,who is content with giving his version.

e.That it does not appear very likely that serving policeofficer would make such serious allegation againstShri Narendra Modi, Chief Minister without some basis.F

f.That there is no documentary material of any naturewhatsoever, which can establish that Shri Bhatt was notpresent in the meeting on 27.02.2002 and in theabsence of the minutes of the meeting, there is againno documentary evidence is available, as to theGparticipants in the meeting and what transpired at thesaid meeting. Therefore, it is the word of Shri SanjivBhatt against the word of other officers senior to him.

g.That it is difficult to accept that Shri Bhatt’s statementis motivated because he has an axe to grind with theH

State Govt. over issues concerning his career and itmay not be proper to disbelieve Shri Sanjiv Bhatt atthis stage only because the other officers have notsupported his statement.

h.That the delay in making the statement can not be thesole ground to disbelieve the statement at this stageespecially in view of his explanation that as anIntelligence Officer, who was privy to lot of sensitiveinformation, he would make statement only when hewas under legal obligation to do so.

i.That Shri G.C. Raiger, Addl. DG (Int) was on leave on

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27.02.2002 and DGP Shri K Chakravarthi does not statethat he had gathered intelligence from the office of ShriRaiger. Further, Shri P.C. Upadhay, the then DCI(Political & Communal) was on leave on 27.02.2002and Shri Bhatt was looking after his work. Also ShriRaiger has stated that Shri Bhatt had accompanied himin the past to meetings called by the Chief Minister,though he used to wait out side with files or informationand therefore, it is quite possible that Shri Bhatt wasdirected to attend the meeting on 27.02.2002 at theresidence of Chief Minister.

j.That the phone calls records do not contradict thestatement given by Shri Sanjiv Bhatt to the SIT andconsidering the important and emergent nature of themeeting, the relative juniority of Shri Bhatt need nothave come in the way of his attending the meetingespecially since Addl. DG (Int.) Shri Raiger was notavailable and Shri O.P. Mathur, the IGP (Security &Admn.) who was next in seniority was not called for themeeting and that this aspect was of little significance inthe context of an emergency meeting called at shortnotice in response to an escalating situation.

Ak.That the discrepancies about the exact language usedor the time of meeting at the Chief Minister’s residenceat Gandhinagar on 28.02.2002, are inevitableconsidering the lapse of time.

As regard the assessment of the role played by Shri M.K.BTandon, the then Jt. CP, Sector-II, Ahmedabad City and Shri.P.B.Gondia, the then DCP, Zone-IV, Ahmedabad City, the Ld.Amicus Curiae has recommended that it would be appropriatefor the Hon’ble Supreme Court of India to direct the trial Courtto consider an application u/s 319 Cr.PC filed by the victims inGulberg Society Case on the evidence brought before it and alsoCconsider the further investigation report submitted by ShriHimanshu Shukla, DCP to the Hon’ble Supreme Court of Indiaon 26.11.2010 and the statements recorded by him and to passappropriate orders in accordance with law. The Ld. Amicus Curiaehas also submitted to the Hon’ble Supreme Court to considerDwhether an offence u/s 304A IPC is made out. The Ld. AmicusCuriae has finally come to the conclusion that since the SIT hasconducted statutory investigation u/s 173 (8) Cr.PC, the reportis required to be filed in the Court and it is for the competentCourt to pass necessary orders after hearing the concernedparties. However, the Hon’ble Supreme Court has refrained fromEpassing any order in this regard except that Chairman, SIT hasbeen directed to forward Final Report along with entire materialcollected by it to the Court, which had taken cognisance ofCr.No.67/2002 u/s 173(2) Cr.PC.

Shri Raju Ramachandran, the Ld. Amicus Curiae has agreedFwith the findings of the SIT on all the major issues. Whereas thecomplainant has made an allegation that Shri Narendra Modi, ChiefMinister sponsored the riots, the Ld. Amicus Curiae has cometo the conclusion that sufficient steps were taken by the ChiefMinister to control the riots. The Ld. Amicus Curiae did not allege

Gany conspiracy or abetment on the part of Chief Minister. He hasfurther agreed with the recommendations of SIT that thestatement made by Shri R. B. Sreekumar that Shri K. Chakravarthihad informed him about the utterances made by the ChiefMinister on 27.02.2002 night would not be admissible as the sameamounted to hearsay evidence and therefore, inadmissible. HeH

is also of the view that the recommendations of the SIT about thesteps taken by the Chief Minister to control the riots may beaccepted. He has also agreed with the recommendations ofchairman, SIT about handing over the dead bodies of Godhravictims to Shri Jaydeep Patel. About the Chief Minister’s allegedstatement on television on 01.03.2002, by referring to theNewton’s third Law of Motion also the Amicus has agreed therecommendations of the SIT.

Shri Raju Ramchandran, Ld. Amicus Curiae is of the viewthat prima facie case u/s 153 A(1)(a) & (b), 153B(1)(c), 166 and505(2) IPC is made out against Shri Narenda Modi, Chief Minister.However, he is further of the view that it would be for the Courtof competent jurisdiction to decide whether Shri Modi has to besummoned for any or all of these offences or for any other offence.This recommendations of Ld. Amicus Curiae is based on the soletestimony of Shri Sanjiv Bhatt, the then DCI (Security), who hasclaimed to have attended meeting called by the Chief Ministeron 27.02.2002 night at his residence. It may be mentioned herethat seven (7) other participants of the said meeting havecategorically stated that Shri Sanjiv Bhatt did not attend the saidmeeting. According to the Ld. Amicus Curiae, Shri Sanjiv Bhattproduced his driver Shri Tarachand Yadav, dismissed constabledriver of Gujarat Police along with his affidavit dated 17.06.2011,who supports, Shri Bhatt’s version that he had gone to theresidence of the Chief Minister on 27.02.2002. In this connection,Shri Sanjiv Bhatt has stated that he had gone along with Shri K.Chakravarthi, the then DGP in the latter’s staff car to CM’sresidence

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from DGP’s office and that Shri K.D. Panth, the then AIO,State IB followed him in his staff car driven by Shri TarachandYadav. The Ld. Amicus Curiae has wrongly projected thatShri K.D. Panth, constable has supported the version ofShri Sanjiv Bhatt about the latter’s visit to CM’s residenceon 27.02.2002, in as much as Shri K.D. Panth has lodged acomplaint on 17.06.2011 against Shri Sanjiv Bhatt for

wrongful confinement and also for getting an affidavit signedfrom him under duress and threat and case I CR No.149/2011 was registered u/s 189, 193, 195, 341, 342 IPC hasbeen registered against Shri Sanjiv Bhatt on 22.06.2011 inGhatlodia P.S, Ahmedabad City. Shri Raju Ramchandran hasrelied upon copy of this affidavit which was handed overto him by Shri Sanjiv Bhatt on 17.06.2011. In fact, Shri K.D.Panth had sent letter to Chairman, SIT in this regard on17.06.2011 itself along with another affidavit sworn beforethe Dy. Collector, Gandhinagar to the effect that he was onleave on 27.02.2002, and that his statement made beforethe SIT in this regard was correct. It would not be out ofplace to mention here that copy of the said letter alongwith the affidavit submitted to SIT by Shri K.D. Panth withits English translation were handed over to Shri RajuRamchandran by Shri Y.C. Modi, Member, SIT and ShriA.K. Malhotra, Member, SIT personally on 21.06.2011, butthe same has been conveniently ignored by the Ld. AmicusCuriae. The claim of Shri Sanjiv Bhatt has been dismissedby Shri K. Chakravarthi, the then DGP, who has deniedthat Shri Bhatt accompanied him in his staff car to CM’sresidence on 27.02.2002. Significantly, log book of thevehicle of Shri Chakravarthi shows only PSO accompaniedhim and there is no mention of Shri Sanjiv Bhatt in the same.Further, Shri Dilip Ahir and Shri Dharampal Yadav, the thenPSOs to the DGP and Shri Panchusinh Yadav and ShriMangilal Kala, the then drivers attached to the DGP havecategorically denied that Shri Sanjiv Bhatt ever travelledin DGP’s staff car. The observation made by the Ld. AmicusCuriae that Shri K.D. Panth had supported the version ofShri Sanjiv Bhatt is, therefore, incorrect. Further, keepingin view the version of Shri K.D. Panth that he was on leaveon 27.02.2002, would falsify the statement made by ShriTarachand Yadav, driver to the effect that he had followedthe DGP’s vehicle with Shri K.D. Panth, Constable.

It is significant to note that the Ld. Amicus Curiaehas admitted that

“I am conscious of the fact that though Shri Bhatt hasbeen contending that he would speak only when under alegal obligation to do so, his conduct after making hisstatement u/s 161 Cr.PC has not been that of detachedpolice officer, who is content with giving his version. I amleft with no doubt that he is actively “strategising” and isin touch with those, who would benefit or gain mileage fromhis testimony”:

The Ld. Amicus Curiae has also mentioned that ShriRahul Sharma, DIG submitted an analysis of the call recordsof senior police officers, which according to Shri Sharmacorroborates the statement of Shri Bhatt. Shri Rahul Sharmanever stated anything like that before the SIT Shri RahulSharma has not stated that in what manner the call detailsof the senior officers corroborate the statement of ShriSanjiv Bhatt. The Ld. Amicus Curiae has accepted thecontention of Shri Sanjiv Bhatt that as an IntelligenceOfficer, he was privy to some information and would speakonly, when he was legally bound to do so. In this connectionit may be stated that the alleged meeting called by the ChiefMinister in the night of 27.02.2002 was essentially lawand order review meeting which was attended by the variousofficials of State Administration and therefore the questionof oath of secrecy or application of the Official Secrets Actdoes not arise because it was neither secret meeting norwould the revelation of the contents of the said meetingjeopardized the public interest. Shri Sanjiv Bhatt has usedthe Official Secrets Act as pretext to justify long delayof nine years and the fact that an official of the intelligenceunit attended law & order meeting, the same does notbecame secret meeting for which privilege of secrecy isbeing claimed by Shri Sanjiv Bhatt. The view of the Ld.Amicus Curiae that it does not appear very likely that aserving police officer would make such serious allegationwithout some basis appears to be erroneous in as much asShri Sanjiv Bhatt had been all along delinquent in hiscareer and had been trying to bargain with the government.The very fact that three departmental enquiries against ShriSanjiv Bhatt were dropped in 2006-07 and he was given

three promotions on single day would by itself go to showhis service career progression. Again his promotion to therank of IGP was due for quite sometime but he did not getthe same because of other departmental enquiries as wellas court cases pending against him. This reason by itself issufficient to bring motive on the part of Shri Sanjiv Bhattto make statement against the Chief Minister. Further, itis true that no minutes of the meeting were maintained andthere is no documentary evidence available to show as towhat transpired in the said meeting. However, the evidenceof seven senior officers can not be ignored to the effectthat Shri Sanjiv Blatt was not present in the said meetingand claim of Shri Sanjiv

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Bhatt about his having attended the said meeting and alsoabout some alleged utterances made by the Chief Ministeris not acceptable. The observation made by the Ld. AmicusCuriae that Shri Sanjiv Bhatt can not be disbelieved becausehis statements was motivated and he has an axe to grindagainst the government over issues concerning his careerand also that absurd. The further observation of Ld. AmicusCuriae that in the absence of Shri G.C. Raiger, the thenAddl. DGP (INT) and Shri P.B. Upadhya, the then DCI(Political & Communal) being on leave, it was quite possiblethat Shri Sanjiv Bhatt was directed to attend the meetingon 27.02.2002 is based on conjectures and surmises. Thecontention of Ld. Amicus Curiae that the phone call recordsdo not contradict the statement of Shri Sanjiv Bhatt iswithout any basis in as much as the same do not evensupport his statement. The call detail records show thelocation of Shri Sanjiv Bhatt at Ahmedabad and the last callwas received by him at 20.40 hours, which do not establishthat Shri Sanjiv Bhatt had gone to Gandhinagar to attend ameeting around 22:30 hours.

Significantly, the claim of Shri Sanjiv Bhatt of havingattended the meetings on 27/28.02.2002 becomes false and

unacceptable as according to his call detail records he couldnot have been present in the alleged meeting that tookplace at CM’s residence on 28.02.2002 at 1030 hrs. Anotherclaim of Shri Sanjiv Bhatt that he left the meeting of27.02.2002 night halfway is suggestive of the fact that inreality he did not attend the meeting. This meeting was ofa very short duration and it was practically impossible for ajunior officer of the level of Shri Bhatt to leave the meetingmidway.

Further, the view of Ld. Amicus Curiae that the exactlanguage allegedly used by the Chief Minister in the saidmeeting on 27.02.2002 is not material, can not be acceptedin as much as there are atleast three versions available onrecord in this regard. Smt. Jakia Nasim in her complainthas claimed that high level meeting was convened by theChief Minister at which Chief Secretary Subba Rao, HomeSecretary Ashok Narayan and senior police men weresummoned at which clear instructions were given ‘not todeal with the Hindu rioting mobs’. Further, Shri R. B.Sreekumar has claimed that Shri K. Chakravarthi hadinformed him on 28.02.2002 that Shri Narendra Modi, CMhad convened meeting of senior officers on 27.02.2002late in the evening on return from Godhra and had said thatin communal riots police takes action against Hindus andMuslims on one to one basis. This will not do now – allowHindus to give vent to their anger. As against this, ShriSanjiv Bhatt claims that the Chief Minister allegedlyimpressed upon the gathering in the meeting for that fortoo long the Gujarat Police had been following the principleof balancing the actions against the Hindus and Muslimswhile dealing with the communal riots in Gujarat. This timethe situation warranted that the Muslims be-taught lessonto ensure that such incidents do not recur ever again. TheChief Minister Shri Narendra Modi expressed the view thatthe emotions were running very high amongst the Hindusand it was imperative that they be allowed to vent out theiranger. It is not understood as to whose words should berelied upon because none of them i.e. Smt. Jakia Nasim,

Shri R. B. Sreekumar and Shri Sanjiv Bhatt were presentin the said meeting. Another factor worth consideration atthis stage is that there is no evidence available on recordthat any instructions on these lines were passed on to thepolice formation down below thereby ruling out thepossibility of such utterances as alleged were made by CMin the meeting.

Based on the aforesaid three versions Amicus Curiae hasarrived at conclusion that the same would attract the offencesu/s I53 (1) (a) & (b), 153B (1) (c),166 and 505 (2) IPC.

Section 153A (1) (a) IPC states that ‘whoever, bywords promotes or attempts to promote disharmony orfeelings of enmity, hatred, or ill will on the ground of religionbetween different religious communities. In other words,Section 153A(1)(b) IPC can be paraphrased as ‘whoevercommits any act which is prejudicial to the maintenance ofharmony between different religious communities andwhich is likely to disturb the public tranquility’. Even if anyof the aforesaid three versions allegedly made by ChiefMinister, the ingredients of section 153A(1) (a) & (b) arenot attracted. The facets of the allegations attributed toShri Narendra Modi can not fall under sub-class (a) or (b)of the 153 (A) (1) IPC. At this juncture, it would not be outof place to mention that the Chief Minster made fourstatements within 24 hours on 27/28.02.2002. At Godhraon 27.02.2002 evening the Chief Minister publicly said thatburning of karsevaks in train at Godhra was unparalleledin the history and assured the people that the culprits wouldbe punished. He also said that the Government wouldensure that the peace was maintained in the State and theGovernment would not be lacking in discharging its duty.On 28.02.2002 morning, he spoke in the assembly afterobituary reference that the State government has taken thiscruel, inhuman, heinous and organized crime very seriouslyand is committed to take symbolic strict

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steps and to punish the culprits in such an exemplarymanner that such an incident may not recur in future. On28.02.2002 afternoon in his press conference in CircuitHouse Annexe, Ahmedabad, Shri Narendra Modi reiteratedthat Government of Gujarat has taken this heinous trainburning incident at Godhra very seriously and that peopleshould help the government to ensure that the culprits arepunished. Shri Narendra Modi also told the press that thosewho had acted in retaliation and anger after the incidentshall also not be spared. Further, he appealed made to thepeople of Gujarat on Doordarshan on 28.02.2002 eveningto keep restrain and maintain peace and harmony. He alsosaid that the Government was determined to bring theseculprits to justice and give them unimaginable punishment.It may thus be seen that the thrust of CM’s speecheverywhere was that the incident was heinous, organisedand that the culprits would be brought to strictest,punishment.

Similarly, section 505 (2) IPC can be paraphrased asWhoever makes any statement with intend to create (orpermit to create (or is likely to create or permit to create)feelings of enmity or hatred or ill will between differentreligious community. In view of the reasons enumeratedabove case u/s 505(2) IPC is also not made out.

Also, section 153B (1) (c) IPC can be paraphrased asWhoever by words makes any assertion concerning, theobligation of any class or person by reason of their beingmembers of religious community and such assertion islikely to cause disharmony or feeling of enmity or hatredor ill will between such members and other persons. Asregards the application of this section, it may be mentionedthat it is not the case that the Chief Minister made anyassertion concerning the obligation of any religiouscommunity to do such acts as are likely to cause disharmony.He did not make any appeal to Hindus or Muslims to takeup arms against each other. On the other hand ShriNarendra Modi made an appeal on 28.02.2002 that both

BCD

the communities should desist from doing any act byphysically attacking each other. This appeal wasbroadcasted by the Doordarshan intermittently. In view ofthis no offence u/s 153B (1) (c) IPC is made out.

As regards section 166 IPC, it deals with the publicservants disobeying any direction of law as to the way inwhich he is to conduct himself as public servant. It cannot be extracted from the statement attributed to ShriNarendra Modi that he was thereby disobeying anydirections of law as to the way, in which he is to conducthimself as Chief Minister. No such directions can be quotedfrom law as for the Chief Minister to disobey it. In view ofthis there is no application of section 166 IPC at all againstShri Narendra Modi.

Thus recommendations of Amicus Curiae andevidence collected during further investigation u/s 173 (8)Cr.PC have been examined in detail to see, if theingredients of the suggested sections for prosecution areattracted or not. On such assessment it is reasonablyconcluded that no utterances on part of Shri Narendra Modicould be attributed suggestive to any intended promotionof hatred ill-will etc. amongst religious groups. The settledlegal position is that mensrea is required for offences u/s153A IPC. In view of the same and evidence discussed inpreceding paras, there is no evidence to prima facie allegecommission of suggested offences by Shri Narendra Modi.

Shri Sanjiv Bhatt, DIG (under suspension) has sent aletter dated 30.12.2011 to the Secretary, Hon’ble JusticeNanavati & Justice Mehta Commission of Inquiry enclosingherewith an Annexure ‘D’, which is copy of fax messageNo. D-2 /2-COM I/ALERT /174/ 2002, dated 28.02.2002,which he claimed to have sent to different authorities underhis signature. The same Annexure ‘D’ has been uploadedon website www.twocircle.net. It is reproduced below:

ANNEXURE-D

FAX MESSAGE(PRIORITY: CRASH)

TOPS to CM Gandhinagar

PS to MOS (Home)INFOHome Sec Gandhinagar---------------------------------------------------------------------------

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Police Gandhinagar

CP Ahmedabad

FROMAddl. D.G.P. Intelligence, G.S. GandhinagarO. NoD-2/2 COWALERT/100/2002Date: 28.2.2002

Text As informed telephonically to the Hon’ble CM Ex-MPEhsan Zafri and his family members residing at Gulbarg Society,Chamanpura Meghaninagar have been surrounded and are beingattacked by Hindu Mob in the presence of Police Bandobust (.)The lives of Ehsan Zafri and other family members are in imminentdanger (.)

CP Ahmedabad is requested to take immediate effectiveaction and provide situation report to SCR under intimation tothis office at the earliest (.)

For Addl. D. G. P. Int., G. S.Gandhinagar

Subsequently, on 04.01.2012, Shri Sanjiv Bhatt forwardedto Chairman, SIT copy of his letter No. SRB/COI/120104/01dated 04.01.2012 addressed to Secretary, Justice NanavatiCommission of Inquiry enclosing therewith copy of fax messageNo.D-2/2- COM/ALERT /100/2002, dated 27.02.2002, claimingto have sent the same under his signature. copy of the said faxmessage is also reproduced below:

[2022] 6 S.C.R.

FAX MESSAGE

(PRIORITY: CRASH)

ToCP Ahmedabad

Info:PS to CM Gandhinagar

PS to MOS (Home) GandhinagarHome Sec Gandhinigar

Police Gandhinagar

FromD. G. P. Intelligence, G. S. GandhinagarO. NoD-2/2 COWALERT/100/2002Date: 27.2.2002

TEXT:Pursuant to the meeting held by the Hon’ble ChiefMinister it has become clear that the State Government wishes togo ahead with the decision of bringing the dead bodies of KarSevaks to Ahmedabad by road under Police escort (.)

The dead bodies will be brought to Sola Civil Hospital inyour Jurisdiction before being taken out for cremation (.) Localcadres of BJP/ Bajrang Dal are being massively mobilized forenforcing the VHP/BJP supported Gujarat Bandh (.) Widespreadretributory communal violence is anticipated, in your jurisdiction(.) Request appropriate preventive action (.)

(Sanjiv Bhatt)

Dy. Commissioner (Communal)

For Addl. D. G. P. Int., G. S.

Gandhinagar

On receiving Shri Bhatt’s communication dated04.01.2012 notice u/s 91 Cr.PC was issued to Shri SanjivBhat on 13.01.2012, to produce the original/office copy ofthe fax message dated 27.02.2002. However, Shri SanjivBhatt refused to accept the said notice. Instead, he sent aletter dated 15.01.2012 contending that the aforesaiddocument had already been handed over to Shri A.K.

Malhotra of SIT in the year 2009 and IO Shri HimanshuShukla in

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2011. Shri Sanjiv Bhatt further contended that, in the normalcourse of investigation, the Investigating Officer shouldhave called for the original and/or office copy of the aforesaidfax message from the State IB Gandhinagar and the officesof the respective recipients of the said fax message.

In this connection, it may be emphasized that thestatement of Shri Sanjeev Bhatt was recorded by Shri A.K.Malhotra, Member, SIT during Enquiry on 25.11.2009 &26.11.2009, and the same was signed by Shri Bhatt.However, the same did not contain any reference to theaforesaid two messages, which Shri Bhatt now claims tohave sent on 27.02.2002 & 28.02.2002, despite the factthat copies of all others messages duly mentioned by himin his statement were handed over by Shri Bhatt to ShriMalhotra. Similarly, the statement of Shri Sanjiv Bhatt wasrecorded u/s 161 Cr.PC by the IO Shri Himanshu Shuklaon 21.03.2011 & 22.03.2011, and the same also did notcontain any reference to the aforesaid two messages. Thisraises very serious doubts about the authenticity of theclaim that these messages had in fact been sent to theconcerned addresses. Significantly, the statements recordedby Shri A.K. Malhotra and the IO (Shri Himanshu Shukla)were submitted to the highest Court of country (SupremeCourt) at the relevant point time.

Apart from the aforesaid position, the following pointswould go to show that Shri Sanjiv Bhatt had the fullopportunity to produce these messages if they had in factbeen prepared and sent to concerned authorities, and didnot produce before SIT:

1.Shri Sanjiv Bhatt did not file any affidavit before theNanavati Commission of Inquiry, and, in case, he, wasin possession of these documents, he should have

362SUPREME COURT REPORTS

Afiled the same as per the instructions given by Govt.of Gujarat in the year 2002.

2.Shri R.B. Sreekumar, formerly Addl. DGP (Int.) in hisletter dated 27.12.2011 addressed to Secretary,Nanavati Commission of Inquiry has categoricallyBstated that he had requested all the senior officers ofthe State IB in the rank of SP and above includingShri Sanjiv Bhatt (who had assisted his predecessorShri G.C. Raiger, Addl. DG (Int.) from 27.02.2002 to08.04.2002) to submit any affidavit covering the termsof reference of the Commission; but none of themCfiled any affidavit. Shri Sreekumar further stated inhis letter to the Nanavati Commission that he hadasked all the senior officers of State IB to providehim all the relevant documents in their possessionrelating to riots. Accordingly, all these documentsDreceived by him from his officers were appended byhim to his first affidavit filed before the Commissionon 15.07.2002. However, Shri Sanjiv Bhatt did notproduce any such message before Shri Sreekumar.

3.Shri Sanjiv Bhatt did not produce any of the aforesaidEmessages, either before Shri A.K.Malhotra, Member,SIT during the course of the preliminary inquiryconducted by him under the orders of Hon’bleSupreme Court of India or before Shri HimanshuShukla, DCP, Crime, Ahmedabad City, who hadconducted further investigation u/s 173(8) in this caseF(Cr.No.67/2002 of Meghaninagar P.S. (GulbergSociety Case)). He did not also refer to either of thesetwo fax messages in his statements made before ShriA.K. Malhotra Member, SIT on 25.11.2002 &26.11.2002 and before Shri Himanshu Shukla onG21.03.2011. As already highlighted above, both thesestatements were submitted to the Hon’ble SupremeCourt of India on 14.05.2010 and 25.04.2011respectively.

4.Shri Sanjiv Bhatt, suo moto, filed an affidavit datedH14.04.2011 before the Hon’ble Supreme Court of

India in SLP (Crl.) 1088/2008 filed by Smt. JakiaNasim. In that affidavit also he did not mentionanything about the two aforesaid fax messages.

5.Shri Sanjiv Bhatt was summoned before the NanavatiCommission in May, June & July, 2011 for hisdeposition and cross examination. However, he didnot mention anything about the aforesaid two faxmessages to the Commission.

6.Shri Sanjiv Bhatt was called by Shri RajuRamchandran, Amicus Curiae for personal interactionat Gandhinagar on 18.06.2011. On that occasion also,Shri Sanjiv Bhatt did not mention anything about theaforesaid two fax messages to the Amicus Curiae andconfirmed his statements recorded during the SIT’sPreliminary Inquiry as well as subsequently recordedu/s 161 Cr.PC by the IO.

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7.Shri R.B.Sreekumar, in his letter dated 28.12.2011addressed to Shri Sanjiv Bhatt (copy sent to SIT), hasclearly stated that the plethora of incriminatinginformation against the Govt., which he (Sanjiv Bhatt)claimed to possess now, had not been put up to himat the time of filing his first affidavit on 15.07 2002.Further, if it had come to his (Sanjiv Bhatt), noticethat such material had not been included in hisaffidavit, nothing stopped him from filing separateaffidavit bringing these relevant inputs to the noticeof the Commission. Shri Sreekumar also highlightedthat nearly 12 intelligence reports produced beforehim by Shri Sanjiv Bhatt were included in it, and thesame did not contain anything about the role of theGovt. officials in the alleged planning and executionof the antiminority genocide and subsequentprolonged subversion of the criminal justice systemand delayed justice to the riot victims.

EFG

It may thus be seen that Shri Sanjiv Bhatt producedtwo fax messages for the first time before NanvatiCommission of Inquiry only in the month of December, 2011,and subsequently before the SIT in January, 2012.

perusal of the photo copy of the office copy of faxmessage No. D-2/2-COM / ALERT/100/2002, dated27.02.2002 claimed to have been sent by Shri Sanjiv Bhatt,the then DCI (Security) on behalf of Addl. DGP (Int.) to CP,Ahmedabad with information to PS to CM, PS to MoS(Home), Home Secretary and Police Gandhinagar, wouldgo to show that there was no security classification of thesaid message. The dispatch register of the D-2 section ofthe State IB does not show any dispatch of the said messageas the dispatch number on the said date was under serialnumber 90. Investigation revealed that actually letter No.D-2 /2-COM/BANAO/100/2002, dated 02.03.2002 was senton behalf of Addl. DG (Int.) to ACS (Home), Govt. of Gujaratwith information to Police Gandhinagar, PS to CM and PSto MoS(Home) and the same related to I Cr. No. 9/02 u/s302, 114 etc. of Khanpur P.S., Distt. Panchmahals. The saidmessage bears typed dispatch number, which is veryunusual, because all the dispatch numbers on the messagessent by State IB on 27.02.2002 were hand written. It is notunderstood as to what prompted Shri Sanjiv Bhatt to sendsuch message, when all the individuals to whom thismessage had been addressed were present in the meetingheld at the CM’s residence on the night of 27.02.2002, andit was known to all of them that the Govt. had alreadydecided to bring the dead bodies to Ahmedabad, for whichthe necessary bandobast was required to be made: The saidmessage had not been marked to IGP (P&C), but wasallegedly put up to Shri O.P. Mathur, the then IGP (PRC)who allegedly initialled the same in token of having seenthe same on 28.02.2002. Surprisingly, this message was notput up to Shri G.C. Raiger, the then Addl. DG (Int.), whowas very much in the office on 28.02.2002. Further, ShriO.P. Mathur, the then IGP (P & C) also did not mark it toAddl. DG (Int.), fact which raises serious doubts aboutthe genuineness of the message in question. perusal of the photo copy of the office copy of faxmessage No. D-2 /2-COM/ALERT/174/2002, dated28.02.2002, now claimed to have been sent by Shri SanjivBhatt, the then DCI (Security), on behalf of Addl. DGP (Int.)to PS to CM and PS to MoS (Home) with information toHome Secretary, Police Gandhinagar and CP, Ahmedabad,would go to show that there was no security classificationof the said message. The dispatch register of the D-2 sectionof the State IB also does not show any dispatch of the saidmessage as the dispatch number on the said date was underserial number 100. Investigation revealed that O.No. D-2/2-Com/174/2002, dated 16.03.2002 was sent by Addl. DG(Int.) to Shri B.K. Haldar, Jt. Secretary (NI), MHA, NewDelhi and related to the daily report about the communalincidents up to 16.03.2002 (1800 hrs) in Gujarat state. Thismessage was allegedly put up to Shri G.C. Raiger, the thenAddl. DG (Int.), for favour of perusal, and the same allegedlybears the initials of Shri Raiger dated 28.02.2002.Interestingly, the message in question had been addressedto PS to CM and PS to MoS (Home), whereas the samewas actually actionable by Commissioner of Police,Ahmedabad City. Further, Shri Sanjiv Bhatt had signed afax message No. C/ D-2 /BANAO /178 /2002, dated28.02.2002, which was received by Shri E.L. Christian, thethen PI, State IB Control Room and written by ShriBharatsinh Rathod, the then AIO, to the dictation of ShriChristian, who subsequently took it personally to Shri Bhattfor his signature. In this message, it had been mentionedthat, based on received information, Gulberg Society locatedin Chamanpura, Meghaninagar had been attacked by mobof Hindu rioters and late Ahesan Jafri, Ex-MP along withhis family members and 18 others had been killed, and thatthe attack was still continuing and this incident was likelyto have Statewide repercussions. This message wouldclearly show that no earlier intimation prior to the attackon Gulberg Society had been sent by Shri Sanjiv Bhatt, asthe same did not contain any reference to the earliermessage claimed to

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have been sent by Shri Sanjiv Bhatt vide message No.D-2/2-COM/ALERT/174/2002 dated 28.02.2002. Theinformation contained in the message No.178 dated28.02.2002 had actually been received over telephone byShri E.L. Christian, PI who had dictated the same to hisAIO Shri Rathod and not by Shri Sanjiv Bhatt as claimed byhim. Undoubtedly at the time of signing this message, ShriSanjiv Bhatt had marked the message as “MOSTURGENT” in his own handwriting. Efforts were made tolocate the dispatch register and fax register of State IBControl Room, but the same had been reportedlydestroyed. Further efforts were made to locate the so calledmessage No. 174 dated 28.02.2002 with the persons towhom the said message had been shown addressed, butwithout any success till date.

During the course of further investigation, the personswho are supposed to have received the two messages dated27.02.2002 & 28.02.2002 as well as the concerned officialsof State IB, who were present in the office as also in theControl Room on the aforesaid two dates were examinedand the evidence collected is discussed in subsequentparas.

Dr. P.K. Mishra, the then Principal Secretary to ChiefMinister, has denied having received or seen the messagedated 27.02.2002, purportedly sent by Shri Sanjiv Bhatt.He is of the view that there was no occasion for Shri SanjivBhatt to send such message, because every participantat the law & order review meeting called by the ChiefMinister on the night of 27.02.2002 was aware of the factthat the dead bodies of kar-sevaks who were killed in Godhratrain carnage incident, were being brought to Ahmedabadby road under police escort. Dr. Mishra denied receivingor having seen the fax message No. D-2/2- COM/ALERT/174/2002, dated 28.02.2002. He added that the claimedmessage was quite alarming, and that had he received anysuch message, he would certainly remember the same. Onbeing shown fax message No.C/ D-2 / BANAO / 178/2002,

dated 28.02.2002 handwritten in Gujarati and signed by ShriSanjiv Bhatt on behalf of Addl. DG (Int.) and addressed toHome Secretary, Gandhinagar with information to PS toCM, PS to MoS (Home) Police Gandhinagar and AhmedabadCity. Dr. Mishra stated that the language/expression of thismessage clearly indicated that the information about thesaid incident was being sent for the first time, as there wasno reference to the message No. 174, which Shri Bhatt nowclaims to have sent earlier during that day. Finally, Dr.Mishra stated that the aforesaid two fax messages dated27.02.2002 & 28.02.2002 in English allegedly sent by ShriBhatt were false and fabricated documents.

Shri Gordhan Zadafia, the then MoS (Home), deniedhaving received or seen the two typed fax messages No.D-2 /2-COM / ALERT/100/2002, dated 27.02.2002 & D-2/2-COM/ALERT/174/2002, dated 28.02.2002 in English nowclaimed to have been sent by Shri Sanjiv Bhatt, the thenDCI. He further stated that both these messages were falseand bogus, and had never been received in his office.According to Shri Gordhan Zadafia, these messages havebeen fabricated and have been introduced for the first timeafter lapse of about 10 years of the events mentionedtherein, and that this appears to be deliberate attempt onthe part of Shri Sanjiv Bhatt to involve him in the GulbergSociety incident. He does not remember receiving messageNo. C/D-2/ BANAO/178/2002, dated 28.02.2002 in Gujaratibearing the signature of Shri Sanjiv Bhatt. However, ShriGordhan Zadafia has stated that the fact that this messagedoes not contain any reference to the earlier message No.174 allegedly claimed to have been sent by Shri Sanjiv Bhatton the same day, would show that the earlier message wasa fabricated one. He has stated that he came to know aboutthe Gulberg Society incident late in the afternoon of28.02.2002, and that on receipt of the said information,necessary instructions were given to the concerned policeofficers to deal effectively with the situation.

Shri V.P. Patel, the then Private Secretary to MoS(Home) has denied receiving or having seen the two typed

fax messages No.D-2/2-COM/ALERT/100/2002, dated27.02.2002 and D-2/2-COM/ALERT/174/2002, dated28.02.2002 in English claimed to have been sent by ShriSanjiv Bhatt, the then DCI. He further stated that he didnot remember to have received the handwritten faxmessage No. C/D-2/BANAO/178/2002, dated 28.02.2002in Gujarati bearing the signature of Shri Sanjiv Bhatt.

Shri Ashok Narayan, the then ACS (Home), deniedhaving received or seen the typed fax message No. D-2/2-COM/ALERT/100/2002, dated 27.02.2002 claimed to havebeen sent by Shri Sanjiv Bhatt. Shri Ashok Narayan is ofthe view that such message was not required to be sentby Shri Sanjiv Bhatt, because as decision to bring thedead bodies of the kar-sevaks to Ahmedabad by road hadalready been taken by the Chief Minister at Godhra itselfsometime in the evening of 27.02.2002, and this fact waswell within the knowledge of DGP and CP,

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Ahmedabad. He further denied having received or seen atyped fax message No.D-2 /2-COM/ALERT/174/2002,dated 28.02.2002 purportedly sent by Shri Sanjiv Bhatt onbehalf of Addl. DS (Int.) to PS to CM and PS to MoS (Home)with information to Home Secretary, Gandhinagar.According to Shri Ashok Narayan, the message was ratherunusual. He added that both these fax messages are notgenuine and are false and fabricated documents. He deniedhaving received any information about the attack on GulbergSociety, and he came to know about the killing of late AhesanJafri, Ex-MP through Shri Nityanandam, the then HomeSecretary some time after the incident. After going throughthe message No.C/D-2/ BANAO/178/2002, dated28.02.2002 handwritten in Gujarati. Shri Ashok Narayanstated that he does not remember to have received such amessage after the incident, and has stated that the samedoes not contain any reference to any earlier message videNo.174 claimed to have been sent by Shri Sanjiv Bhatt.

Shri K. Chakravarthi, the then DGP, Gujarat hasstated that the fax message in English bearing No.D-2/2-COM/ ALERT/100/2002, dated 27.02.2002 purportedlysent by Shri Sanjiv Bhatt as DCI (Security) was not receivedor seen by him on 27.02.2002 night, though copy of thesame is shown to have been marked to Police Gandhinagar.He has further stated that in all such law & order mattersnormally senior officers of State IB were expected to informtheir superior telephonically and thereafter follow it up withsuch written message. He has also stated that Shri SanjivBhatt did not contact him telephonically or in person onthe night intervening 27/28.02.2002 in this regard. He hasdenied to have received any intelligence report about themassive mobilization of local cadres of BJP for the VHPsupported Gujarat Bandh. After going through photo copyof another fax message bearing No. D-2/2-COM/ ALERT/174/2002, dated 28.02.2002, Shri Chakravarthi has deniedto have received any such message at the relevant time.According to Shri Chakravarthi, member of minoritycommunity from Ahmedabad had telephoned him at about1400 hrs on 28.02.2002, about an attack on late AhesanJafri, Ex- MP’s house and that he had immediatelytelephoned CP, Ahmedabad City in the matter, to whichCP, Ahmedabad city, had informed that he had already sentofficers and additional reinforcements to deal with thesituation. Shri Chakravarhti has also stated that faxmessage was also sent by the State Control Room to CP,Ahmedabad City at 1405 hrs on 28.02.2002 in this regards.On looking into the photo copy genuine of handwritten faxmessage bearing No. C/D-2/BANAO/178/2002, dated28.02.2002 in Gujarati, Shri Chakravarthi has stated thatthe language of the said fax message shows that the GulbergSociety incident was reported for the first time through thismessage after the occurrence of the incident on 28.02.2002,which proves the falsity of earlier message No. D-2 /2-COM/ ALERT / 174 / 2002 dated 28.02.2002 claimed to havebeen sent by Shri Sanjiv Bhatt.Shri P.C. Pande, the then CP, Ahmedabad City, hasstated that it was well within his knowledge after the meeting

of 27.02.2002 night held at CM’s residents, that the deadbodies of the kar-sevaks killed in the Godhra incident werebeing brought to Ahmedabad City with view to facilitatethe relatives of the deceased to identify and claim the deadbodies. As such there was no need for Shri Sanjiv Bhatt tosend fax message No.D-2/2-COM/ALERT/100/2002,dated 27.02.2002 to him. He denied having received anysuch fax message in his office on the night intervening 27/28.02.2002 as he remained in his office in Shahibaug tillabout 0100 hrs on 28.02.2002. He further denied seeingany such message. He has also denied having received orseen fax message No. D-2/2-COM/ALERT/174/2002, dated28.02.2002. He has given the details of the additional force/officers sent by him on receipt of the messages from Sr. PI,Meghaninagar regarding the surrounding of GulbergSociety by mob. He has also stated that the DGP mighthave spoken to him about the situation in Gulberg Societyand also about the declaration of curfew, to which he wasinformed that the curfew had been declared in ChamanpuraChowky area around 1220 hrs. Shri Pande is of the viewthat both these fax messages now claimed to have beensent by Shri Sanjiv Bhatt, the then DCI, are false andfabricated documents. According to Shri Pande, thismessage was only marked to him for information, thoughhe was required to take action on the same and send asituation report. Shri Pande has denied sending anysituation report with regard to the Gulberg Society matterto the SCR, Gandhinagar as the message was never sent tohim. As regards the message No.C/D-2/BANAO/178/2002,dated 28.02.2002 handwritten in Gujarati and signed by ShriSanjiv Bhatt, Shri Pande has stated that this message couldhave been sent only after the incident had taken place atGulberg Society, and the very fact that it did not containany reference to the alleged earlier message No. 174claimed to have been sent by Shri Sanjiv Bhatt would go toshow that the said message was not genuine one andappears to have been manipulated subsequently.

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Shri O.P. Mathur, the then IGP (Political &Communal), has stated that fax message No.D2/2-COM/ALERT/100/2002, dated 27.02.2002 does not have anysecurity classification and in case it passed through theControl Room, it should have contained details about thetime and date. Further, the fax message does not bear thedate and time at which it was passed on to the authorities,and as such it can not be said as to whether the said messagewas actually passed on to the concerned authorities or not.Also, according to Shri Mathur, the language of the faxmessage does not show as to under whose instructions thesaid message was sent and who informed Shri Sanjiv Bhattas to what had transpired in the meeting, because in thesaid message did not say that Shri Sanjiv Bhatt had himselfattended the said meeting. Had Shri Sanjiv Bhatt attendedthe said meeting, he was duty bound to submit report inwriting to Addl. DG(Int.) on 28.02.2002, when Shri G.CRaiger, the then Addl. DG (Int.) was very much in the office.Shri Mathur has further stated that the said fax messagehad not been marked to anyone including himself. Afterlooking into his alleged initials dated 28.02.2002 on theoffice copy of the typed fax message dated 27.02.2002claimed to have been sent by Shri Sanjiv Bhatt, Shri Mathurhas stated that the said initials were not his and the samehad been fabricated by someone, as the message was notmarked to him. Shri Mathur has also stated that had it beengenuine paper, he would have marked the same to Addl.DG (Int.) for his information (being the overall Head ofIntelligence wing) as Shri G.C. Raiger was very much inthe office on 28.02.2002. Shri Mathur finally stated that thesaid fax message was forged document, which had beenfabricated subsequently by someone with vested interest.He has denied receiving the message No. D-2/2-COM/ALERT/174/2002, dated 28.02.2002 in English allegedlysent by Shri Sanjiv Bhatt to different authorities.

Shri G.C. Raiger, the then Addl. DG (Int.) has statedthat the typed fax message No. D-2/2-COM/ALERT/174/

2002, dated 28.02.2002 was never put up to him on28.02.2002 for perusal, and his initials dated 28.02.2002on the said message are fabricated. He has stated that thesaid message was never seen by him and that it was afabricated document. He has also stated that another typedfax message No.D-2/2-COM/ALERT/I00/2002, dated27.02.2002 claimed to have been sent by Shri Sanjiv Bhattto different authorities was neither put up to him for hisinformation nor shown to him. He was also not orallyinformed about the same by Shri Sanjiv Bhatt. HoweverShri Raiger has stated that on 28.02.2002 afternoon, ShriSanjiv Bhatt came to his chamber and conveyed messagebased on report from local IB unit, Ahmedabad City aboutthe collection of mob outside Gulberg Society, where lateAhesan Jafri, Ex-MP was residing and also about theinadequate presence of police on the spot. Shri Raiger hasstated that the said message was passed on to theAhmedabad City Police Control Room. Further, accordingto Shri Raiger, he along with Shri Sanjiv Bhatt, met the DGPimmediately and informed him about the developingsituation at Gulberg Society. Shri Raiger further stated thatthe DGP was requested to impress upon the CP,Ahmedabad City to declare curfew in the area. To this, DGPimmediately responded by telephonically speaking to ShriP.C. Pande the then CP, Ahmedabad City to ascertain thefactual position CP, Ahmedabad, Shri Pande informed theDGP over phone that curfew had already been imposed.Shri Raiger has also stated that after meeting the DGP,there was no reason for Shri Sanjiv Bhatt to send such faxmessage on 28.02.2002. After going through the messageNo.C/D-2/BANAO/178/2002, dated 28.02.2002 handwrittenin Gujarati and bearing the signature of Shri Sanjiv Bhatt,Shri Raiger has stated that the said message does notcontain any reference to message No.D-2 /2-COM/ALERT/174/2002, dated 28.02.2002 claimed to have been sentearlier during the day by Shri Sanjiv Bhatt. This would goto show that the message No. D-2/2-COM/ALERT/174 /2002, dated 28.02.2002 was not genuine one.

Shri P.B. Upadhyay, the then Deputy Commissionerin charge of Communal section has stated that he hadproceeded on leave on 26.02.2002. However, ShriO.P.Mathur, the then IGP (Admn. & Security), who heldthe additional charge of the post of IGP(P & C) spoke tohim over phone and cancelled his leave, with instructionsto report immediately for duty in the light of Godhra traincarnage incident. Shri Upadhyay accordingly reported forduty in the office on 27.02.2002 evening around 1700 hrsor so. He has further stated that Shri Sanjiv Bhatt, the thenDCI (Security) looked after his work in his absence andhad sent some messages during the day (27.02.2002.). Hehas also stated that he remained in the office till late hoursof 27.02.2002 as he stayed in Gandhinagar and that ShriSanjiv Bhatt left the office earlier than him as he used tolive in Ahmedabad city. He has denied complete knowledgeabout the two-typed fax messages No.D-2/2-COM/ALERT/100/2002, dated 27.02.2002 and D-2/2-COM/ ALERT/174/2002, dated 28.02.2002 in English, and has stated thatneither Shri Sanjiv Bhatt informed him about it nor thesemessages were shown to him. According to Shri P.B.Upadhyay, these messages do not appear to be genuine, asthe dispatch number had been typed, which was quite

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unusual as all dispatch numbers used to be put down inhand by the dispatcher. According to Shri P.B. Upadhyay,had such message been issued either on 27.02.2002 or28.02.2002, the same would have definitely been put up tohim for perusal as he used to handle the ‘Communal’ subjectin the office as per the then division of work. He has alsostated that the initials dated 28.02.2002 of Shri O.P. Mathuron the fax message dated 27.02.2002 do not appear to begenuine. Shri P.B. Upadhyay has also stated that the veryfact that the message dated 28.02.2002 was addressed toPS to CM and PS to MoS (Home) and on which CP,Ahmedabad City was to take action, to whom only copywas marked, would go to show that the message was not

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genuine one. He has denied knowledge about meeting atCM’s residence on 27.02.2002 evening and that Shri SanjivBhatt also did not inform him on 28.02.2002 of havingattended any meeting with the CM in the night of27.02.2002.

Shri Iftekhar Ahemad V. Pathan, AIO, who is postedto D-2 section (Communal section) of State IB since 2000,has stated that the office copies of fax messages No.D-2/2-COM/ALERT/100/2002, dated 27.02.2002 and D-2/2-COM/ALERT/174/2002, dated 28.02.2002 typed in Englishare not available on records of D-2 section and that he hadnever seen the same. He has further stated that thesemessages were not dispatched from the dispatch registerfrom the office of State IB and proved that the dispatch No.100 related to letter dated 02.03.2002 sent by Shri P.B.Upadhyay to ACS (Home) regarding I Cr.No. 9/02 u/s 302IPC of Khanpur P.S. Distt. Panchmahals, and dispatch No.174 related to fax message sent by Add. DG (int.) to ShriB.K. Haldar, Jt. Secretary, MHA, New Delhi on 16.03.2002regarding communal incidents reported up to 16.03.2002.According to Shri Pathan, the very fact that the dispatchnumbers had been typed would show that the messagesare false and bogus. He has further stated that Shri SanjivBhatt did not come to State IB office late in the evening of27.02.2002 while he was in the office till quite late. He hasproved that fax message No.C/D-2/BANAO/178/2002, dated28.02.2002, handwritten in Gujarati, to be in the handwritingof Shri Bharatsinh Rathod and signed by Shri Sanjiv Bhatt,was genuine message and copy of the same was availablein D-2 branch. The same does not contain any reference ofeither message No D-2/2- COM/ALERT/174/2002, dated28.02.2002 claimed to have been sent by Shri Sanjiv Bhatt,which appears to be bogus.

Shri V.M. Sonar, the then PI and Shri S.R. Shukla, thethen IO of State IB, who were posted to D-2 Branch andwere present in the office on 27.02.2002 & 28.02.2002 havecorroborated the statement of Shri I.V. Pathan, AIO, D-2branch, State IB.

Shri Bharatsinh Rathod, the then AIO, State IBControl Room, who was on duty from 0800 hrs to 2000 hrson 28.02.2002, has stated that the fax message No. C/D-2/BANAO/178/2002, dated 28.02.2002 was in his hand writingand was written to the dictation of Shri E.L. Christian, thethen PI, State IB Control Room, who had received the saidinformation over telephone from IB, Ahmedabad Region.Shri Rathod has stated that Shri Christian took thismessage personally to Shri Sanjiv Bhatt, who signed thesame in Gujarati. He has further stated that he put downthe dispatch No.178 from the Control Room dispatchregister in his hand writing and passed on the same to thefax operator for transmission to the concerned authorities.However, he does not recollect the exact time of the receiptof the said message, but it was certainly after the incidenthad taken place at the Gulberg Society. On looking intothe photo copy of the office copy of fax message No.D-2/2-COM/ALERT/174/2002, dated 28.02.2002 in English, hehas stated that the message does not bear State IB ControlRoom dispatch number, which was essential had the samebeen dispatched from D-2 branch. He has denied havingseen or passed on the said fax message. His version hasbeen corroborated by Shri E.L. Christian, the then PI, StateIB Control Room.

Shri A.S. Kasiri, the then PI, State IB Control Roomhas stated to have sent the Control Room messages No.D-2/2-COM/ALERT/172/2002, dated 27.02.2002 and D-2/2-COM/ALERT/173/2002, dated 27.02.2002 during his dayduty hours from 0800 hrs to 2000 hrs on 27.02.2002 andhas confirmed his signature thereon.

Shri N.M. Gohil, the then AlO, State IB Control Roomhas confirmed writing the fax messages No. D-2/2-COM/Kar-Sevak/78/2002, dated 28.02.2002 & D-2/2-COM/ Kar-Sevak/80/2002, dated 27.02.2002 and has identified thesignature of Shri V.J. Solanki, the then PI, State IB ControlRoom on the same. Shri V. J. Solanki could not beexamined, because he is unable to speak or walk followinga paralytic attack.

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To sum up, on the basis of the further investigationconducted into the two typed fax messages NO.D-2/2-COM/ALERT/100/2002, dated 27.02.2002 and D-2/2-COM/ALERT/174/2002, dated 28.02.2002, it is conclusivelyestablished that Shri Sanjiv Bhatt, the then DCI, did notproduce the same or copies thereof before any of theauthorities before December, 2011, though number ofopportunities arose for him to do so. From the records ofD-2 section, it is conclusively established that one of thesefax messages were issued/dispatched from the said sectionof State IB dealing with the communal affairs. Besides thatShri P.B. Upadhyay, the then DCI(Communal) and Shri I.V.Pathan, AIO, who is posted to D-2 Section since the year2000 till date, have categorically stated that neither of thosetwo fax messages was issued from their section and thatcopies thereof are not available in the records of the StateIB. Shri O.P. Mathur, the then IGP(P & C) has categoricallystated that fax message NO.D-2/2-COM/ALERT/100/2002,dated 27.02.2002 was fabricated document and that hisinitials thereon are not genuine. Shri G.C. Raiger, the thenAddl. D.G.(Int) has denied his initials on the fax messageNo. D-2/2-COM/ALERT/174/2002, dated 28.02.2002 andhas stated that the same have been forged by someone andthat no such fax message was ever sent by Shri Sanjiv Bhatt.Shri Gordhan Zadafia, the then MoS (Home), Shri V.J.Patel,the then P.S. to MoS(Home), Dr. P.K. Mishra, the thenPrincipal Secretary to Chief Minister, Shri Ashok Narayan,the then ACS (Home) and Shri P.C. Pande, the then CP,Ahmedabad City, to whom the aforesaid fax messages wereclaimed to have been sent by Shri Sanjiv Bhatt, all havedenied having received any such fax messages. The veryfact that there is no reference to fax message No. 174 dated28.02.2002 by Control Room in fax message No.178 actuallysent on 28.02.2002 after the Gulberg Society incident, wouldconclusively prove that no such message was sent earlieron 28.02.2002. The oral and documentary evidence availableon record would therefore conclusively prove that thesefax messages now produced by Shri Bhatt have been

fabricated subsequently with an ulterior motive, and havebeen produced by Shri Sanjiv Bhatt for the first time beforethe Nanavati Commission of Inquiry and subsequentlybefore SIT in January, 2012. No reliance can, therefore, beplaced upon both these fax messages.

To sum up, Shri A.K. Malhotra, Member, SIT hasconducted an inquiry into the complaint made by Smt. JakiaNasim as per the orders of the Hon’ble Supreme Court ofIndia passed on 27.04.2009. In compliance to the said ordera report was submitted by the SIT to the Hon’ble SupremeCourt of India on 13.05.2010, in which further investigationu/s 173(8) Cr.PC was suggested to be conducted in respectof Shri Gordhan Zadafia, Shri M.K. Tandon, Jt. CP and ShriP.B. Gondia, DCP, Zone-IV, Ahmedabad City. Furtherinvestigation in the matter was conducted by theundersigned (Shri Himanshu Shukla, DCP, Crime Branch,Ahmedabad City) under the supervision of Shri Y.C. Modi,Addl. DG & Member, SIT and report in the matter wassubmitted to the Hon’ble Supreme Court on 17.11.2010.Both the aforesaid reports were given to Shri RajuRamchandran, Sr. Advocate, who had been appointed asAmicus Curiae in the matter by the Hon’ble Supreme Courtof India. The Amicus Curiae submitted his Interim Reportin the matter to the Hon’ble Supreme Court of India on20.01.2011, vide which he suggested further investigationin respect of some of the issues.In compliance to the order passed by the Hon’bleSupreme Court of India on 15.03.2011, to conduct furtherinvestigation into the matter u/s 173 (8) Cr.PC, ShriHimanshu Shukla, DCP, Crime Branch carried out furtherinvestigation under the overall supervision of Chairman,SIT Shri R.K. Raghavan, Shri Y.C. Modi, Addl. DG &Member, SIT and Shri A.K. Malhotra, Member, SIT andanother report was submitted to the Hon’ble Supreme Courtof India on 25.04.2011. The Hon’ble Supreme Court of Indiahanded over the said report to the Ld. Amicus Curiae forhis examination and independent opinion.

BCD

The Ld. Amicus Curiae accordingly examined the SITreports and also interacted with some of the witnessesincluding the police officers and submitted his report tothe Hon’ble Supreme Court of India on 25.07.2011. TheHon’ble Supreme Court of India after careful considerationof the matter passed an order on 12.09.2011, directed theChairman, SIT to forward Final Report along with theentire material collected by the SIT to the Court which hadtaken cognisance of FIR of I. CRNo. 67/2002 ofMeghaninagar P.S as required u/s 173 (2) Cr.PC of theCourt.

It may be mentioned here that the Ld. Amicus Curiaehas agreed with the various recommendations made by theSIT on the different issues inquired into/investigated bythe SIT. However, the Ld. Amicus Curiae is of the viewthat at this prima facie stage offences u/s 153A(1)(a)& (b),153B (1)(c), 166 and 505 (2) IPC are made out against ShriNarendra Modi

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regarding the statement made by him in the meeting on27.02.2002. In this connection, as discussed, above SIT isof the view that the offences under the aforesaid sectionsof law are not made out against Shri Narendra Modi.

In the light of the aforesaid facts, closure report isbeing submitted for favour of perusal and orders.

(Himanshu Shukla)DCP & IO, SIT

Gandhinagar

(emphasis supplied)

380SUPREME COURT REPORTS[2022] 6 S.C.R.ABCDEFGH

Bibhuti Bhushan Bose

EFGAppeal dismissed.H