IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. ………./2022

(arising out of SLP(Crl.) No. ………./2022

@ Diary No. 34207/2018)

ZAKIA AHSAN JAFRI …. APPELLANT

versus

STATE OF GUJARAT & ANR. …. RESPONDENTS

J U D G M E N T

1. There is a delay of 216 days in filing of this special leave petition

against the judgment and order dated 5.10.2017 passed by the High

Court of Gujarat at Ahmedabad

in Criminal Revision Application

No. 205/2014. Even though the explanation offered in the

application for condonation of delay is blissfully vague and bereft

of any material facts and particulars, keeping in mind the

for short, “the High Court”

Digitally signed by

NEETU KHAJURIA

Date: 2022.06.24

11:03:23 IST

Reason:

Signature Not Verified

subject matter involved, we deemed it appropriate to ignore/condone

the delay and proceeded to hear the matter on merits.

2. We must note that the respondents had faintly objected to the

hearing of this matter on merits owing to unexplained delay in filing

of the petition. However, they have a serious objection to the joining

of Ms. Teesta Setalvad (as petitioner No. 2). Firstly, because, the

protest petition on which impugned order had been passed and

assailed in this appeal, was filed only by the appellant

– Zakia

Ahsan Jafri, wife of deceased – Mr. Ehsan Jafri and on the earlier

occasion (proceedings before the High Court), it has been ruled that

she had no locus standi to join the cause of appellant, which opinion

has become final as it has not been reversed by this Court in

SLP(Crl.) No. 1088/2008. Secondly, the antecedents of Ms. Teesta

Setalvad need to be reckoned and also because she has been

vindictively persecuting this lis for her ulterior design by exploiting

the emotions and sentiments of appellant – Zakia Ahsan Jafri, the

real victim of the circumstances. On the other hand, according to

Ms. Teesta Setalvad, she is a bonafide crusader of human rights

hereinafter, “appellant” means Zakia Ahsan Jafri only

issues and has been following this case closely being fully convinced

about the cause in quest of justice. However, as aforementioned, we

have leaned in favour of examining the merits of the challenge to the

impugned order(s) at the instance of appellant - Zakia Ahsan Jafri.

For, because of the subject matter, this Court in the past had to

invoke its role of parens patriae in issuing sui generis directions

including in constituting a Special Investigation Team

to investigate

into the matter and to present appropriate report before the

Metropolitan Magistrate taking cognizance of Crime Report (CR) No.

67/2002 dealing with the Gulberg Society, Meghaninagar case.

Thus, we do not wish to dilate on the issue of locus of Ms. Teesta

Setalvad and keep that preliminary objection open to be decided in

an appropriate case.

3. In that light, we have granted leave to appeal and decided to

examine the matter on merits at the instance of the appellant – Zakia

Ahsan Jafri.

for short, “SIT”

PREFACE

4. Shorn of unnecessary factual matrix, this matter essentially

emanates from the sui generis directions given by this Court on

27.4.2009

in SLP(Crl.) No. 1088/2008, whilst considering challenge

to the decision of the High Court dated 2.11.2007, rejecting the

prayer of the appellant – Zakia Ahsan Jafri for issuing direction to

the concerned authority to register an FIR on the basis of complaint

presented by her on 8.6.2006 to the Director General of Police,

Gujarat. However, this Court vide stated order (dated 27.4.2009

directed the SIT appointed by it in terms of the order dated

26.3.2008

, to “look into” the complaint dated 8.6.2006 and take

steps as required by law and to give its report to this Court within

three months. Consequent to such direction, the SIT submitted its

successive reports on the basis of investigation done by it including

by taking into account the observations of the Amicus Curiae

appointed by this Court. Treating the further report submitted by

the SIT as analogous to report under Section 173(8) of the Code of

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

supra at footnote No. 4

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

Criminal Procedure

, this Court permitted the SIT to place it before

the Magistrate taking cognizance of CR No. 67/2002 concerning trial

in Gulberg Society case with further direction to the Magistrate to

then proceed in accordance with law, including to give opportunity

to the appellant in the event of final report submitted by the SIT was

to recommend closure of her complaint. Appellant – Zakia Ahsan

Jafri, after being served with the final report dated 8.2.2012

alongwith relevant materials adverted to therein, then filed protest

petition on 15.4.2013. This protest petition came to be rejected by

the Metropolitan Magistrate vide order dated 26.12.2013 and

instead, the final report of the SIT came to be accepted. This decision

was carried before the High Court by way of Criminal Revision

Application No. 205/2014. The revision application came to be

disposed of on 5.10.2017, against which the present appeal arises

for our consideration.

for short, “the Code”

FACTS

5. (a) Briefly stated, the abhorrent Godhra incident occurred in

the morning of 27.2.2002, wherein Kar-sevaks travelling in

Sabarmati Express train, returning from Ayodhya, were allegedly

attacked and coaches of the train were set on fire at Godhra Railway

Station at around 7.45 a.m., as a result of which, 58 persons were

charred to death and 59

victim succumbed to the burn injuries on

3.4.2002. As aftermath of that incident, there was unrest and

violence all across the State of Gujarat. In that process – a violent

mob attacked the inhabitants of Gulberg Society, Meghaninagar,

killing 69 persons at the stated location including the husband of

appellant – Zakia Ahsan Jafri, who had unsuccessfully attempted to

dissuade the mob. In connection with this incident, a crime was

registered at “Meghaninagar Police Station” being CR No. 67/2002.

Multiple chargesheets were filed against the concerned accused and

the case was committed to Sessions.

(b) Since there was widespread violence bordering on failure of the

State machinery to prevent and control the same including to arrest

all the perpetrators of the crime and undertake fair investigation, the

National Human Rights Commission

filed a writ petition before this

Court being W.P.(Crl.) No. 109/2003. In that writ petition, the Court

appointed Mr. Harish Salve, learned senior counsel as Amicus Curiae

vide order dated 9.10.2003

, stayed the trial of 9

(nine) major criminal cases mentioned in the order, including the

one arising from CR No. 67/2002 concerning the Gulberg Society.

for short, “the NHRC”

“ORDER

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

An affidavit has been filed by the Chief Secretary to the Government of Gujarat on 7

October, 2003.

The said affidavit discloses that the State has moved to the High Court for amending the criminal appeal

filed against the judgment passed by the Sessions Court acquitting the accused and the Court has

permitted the appeal to be amended. In the aforesaid view of the matter, we feel that in this case an

Amicus Curiae is required to be appointed. We request Shri Harish N. Salve, Sr. Advocate to appear in

this case as Amicus Curiae which he has accepted. Mr. Bhargava V. Desai, Advocate-on-Record is also

appointed as Amicus 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

October, 2003. Counter affidavit filed

today in Court on behalf of Respondents Nos. 2 to 22 in SLP(C) No. 3770/2003 be taken on record.

Let a complete set of paperbooks be given to the learned Amicus Curiae within 48 hours by the State of

Gujarat.

…..”

“ORDER

TP(Crl) 194-202/203.

Issue notice.

Notice has been accepted by Ms.H.Wahi, learned counsel appearing for respondent no.1 State of

Gujarat. She prays for and is allowed two weeks’ time to file counter affidavit. Notice to the remaining

respondents shall be served through the State of Gujarat within a 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 POLICE STATION 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 in the Juvenile Court,

Godhra;

2. Criminal Case No.275/2002 arising out of FIR No.46/2002 dated 28.2.2002 of 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 POLICE STATION MEGHANINAGAR:

(i)Sessions Case No.152/2002 titled State v. Kailash Lalchand Bhai Dhobi & 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 Sonu Ghunghru Val Valo & Ors.

pending in the Metropolitan Magistrate Court No.XI, Ahmedabad;

(iv)Criminal Case No.524/2002 titled State v. Vishal Badrilal Nayee & Ors. pending in the

Juvenile Court No.IV, Ahmedabad;

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 and is permitted to amend the

petitions for including the Sessions trial arising out of CR No.23/2002 and CR No.27/ 2002 (ODE

Massacre). However, further trial in 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 two weeks’ 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)

(d) In the subsequent order passed in the group of petitions on

17.8.2004, this Court directed that in cases where ‘A’ Summary

Report(s) had been filed (around 2000 cases) should be further

investigated by the concerned Range Inspector Generals of Police in

the State of Gujarat, who should ascertain the correctness or

otherwise of such reports. In this appeal, we are not concerned with

those cases.

(e) As noted earlier, this matter emanates from the complaint filed

by appellant – Zakia Ahsan Jafri on 8.6.2006 addressed to the

Director General of Police, Gujarat and other high officials including

Mr. D.A. Vaghela, P.I., Sector 21 Police Station, opposite Old

Sachivalaya, Gandhinagar, the Chief Secretary, State of Gujarat,

Sachivalaya, Gandhinagar and the Home Secretary, State of

Gujarat, Sachivalaya, Gandhinagar. We shall advert to the contents

of this complaint in detail a little later.

(f) Broadly stated, in this complaint, appellant – Zakia Ahsan Jafri

mentioned names of 63 persons, who according to her, were also

involved in larger conspiracy and abetment of the crime resulting in

carnage between February, 2002 and May, 2002, that shook the

State of Gujarat. This allegation was against the then Chief Minister

and Ministers of the State, as well as high police officials and

bureaucrats and others for having committed offence under Section

302 read with Section 120B, Section 193 read with Section 114 and

Sections 185, 153A, 186 and 187 of the Indian Penal Code

and

Section 6 of the Commission of Inquiry Act, 1952

and also under

various provisions of the Gujarat Police Act, 1951

and the Human

Rights Act, 1991

(g) Appellant – Zakia Ahsan Jafri alongwith Ms. Teesta Setalvad

being the Secretary of Citizens for Justice and Peace forum, then

filed an application before the High Court on 1.3.2007 bearing

Special Criminal Application No. 421/2007 under Articles 226 and

227 of the Constitution of India read with Section 482 of the Code.

During the pendency of the said petition before the High Court, the

Tehelka Tape surfaced, which according to the appellant, unravelled

the role of the concerned persons being involved in the build-up to

the commission of crime including conspiring and abetting the

for short, “IPC”

for short, “the 1952 Act”

for short, “the 1951 Act”

for short, “the 1991 Act”

State-wide violence. Be that as it may, the stated writ petition filed

before the High Court was finally dismissed on 2.11.2007, 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 the complaint under section 190 r.w.

section 200 of the Criminal Procedure Code, the

petitioner No.1 is relegated to file appropriate private

complaint to invoke the provisions of section 190 r.w.

section 200 of the Criminal Procedure Code by filing

the private complaint and the same shall be considered

in accordance with law and on merits after following

due procedure under Criminal Procedure Code. It is,

however, made clear that this Court has not expressed any

opinion on the merits of the case in favour of either parties.

Rule discharged.”

(emphasis supplied)

Notably, the High Court did not issue any direction for registration

of FIR in respect of the complaint presented by appellant – Zakia

Ahsan Jafri, dated 8.6.2006.

(h) Being aggrieved by this decision, the appellant alongwith Ms.

Teesta Setalvad filed SLP(Crl.) No. 1088/2008, hearing whereof was

tagged alongwith writ petition filed by the NHRC being W.P.(Crl.) No.

109/2003. Vide order dated 3.3.2008

, Mr. Prashant Bhushan,

learned counsel was appointed as Amicus Curiae in SLP(Crl.) No.

1088/2008 to espouse the cause of the appellant herein.

(i) When both these matters were listed on 26.3.2008

, this Court

passed the following order: -

“Order

After having heard learned counsel for the parties, we

feel that considering the sensitive nature of the cases

involved, appointment of a Special Investigation Team (in

short 'SIT') is warranted. Communal harmony is the

hallmark of a democracy. No religion teaches hatred. If in

the name of religion, people are killed, that is essentially a

slur and blot on the society governed by rule of law. The

Constitution of India, in its preamble refers to secularism.

Religious fanatics really do not belong to any religion. They

are no better than terrorists who kill innocent people for

no rhyme or reason in a society which as noted above is

governed by rule of law.

These are cases where there is an element of

communal disharmony, which is not to be countenanced.

The State of Gujarat has stated that it has no objection if

further investigation is done so that peoples' faith on the

transparency of action taken by the State is fortified.

“ORDER

The High Court’s order does not render the petitioners remedyless. But, various important aspects arise

for consideration. In a given case, a person who has knowledge of the commission of a crime may not

be examined by the police. 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. Though, in the proceedings, the

Central Bureau of Investigation is respondent No. 3, there is presently no need for issuing any notice to

the CBI, as we would like to have the views of the Union of India also.

Mr. Prashant Bhushan, learned counsel has agreed to assist the Court as an Amicus-Curiae. We would

also request other learned senior members of the Bar to assist the Court, as the question is of vital

importance in the administration of criminal justice.”

supra at footnote No. 6

Mr. Mukul Rohtagi, learned senior counsel appearing

for the State stated that the State's approach is fair and it

is not interested in shielding any culprit or a guilty person,

but on the other hand, would like all those who are guilty,

to be punished. This statement of Mr. Rohtagi is not

accepted by some of the learned counsel appearing for the

alleged victims. We need not go into that aspect, in view of

the fact that there is an agreement that there is need for a

Special Investigation Team.

We, therefore, direct that an appropriate

notification shall be issued by the State Government

regarding the creation 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. Shri

Raghavan will be the chairman of the committee and Ms.

Geeta Johri shall be the convener. The committee shall in

its first meeting work out the modalities to be adopted for

the purpose of enquiry/investigation. If any person wants

to make statement before the SIT for giving his or her

version of the alleged incidents, the SIT shall record it.

Those who want to give their version shall in writing

intimate the convenor of the committee so that the

SIT can call him or her for the purpose of recording

his/her statement. It is needless to say that the SIT

shall not confine the investigation by recording

statement of those who come forward to give his or her

version and shall be free to make such

inquiries/investigation as felt necessary by it. The

State Government shall provide necessary infrastructure

and provide resources for effective working of the SIT. The

report of the SIT shall be furnished to this Court in a

sealed cover after completion of the

inquiry/investigation for which three months time is

granted. After the report is submitted, the further

action required to be taken shall be dealt with by this

Court. The SIT shall conduct inquiries/investigations

including further investigation in the following cases:-

I. GODHRA

FIR 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, MEHSANA

CR Nos. 275/2002 arising out of FIR No.46/2002 dated

28.2.2002 of police station Bijapur, Mehsana

III.GULBERG SOCIETY, MEGHANINAGAR AHMEDABAD

CR Nos.67/2002 at Meghaninagar Police Station

i) Sessions Case No.152/2002 titled State V/s.

Kailash Lalchand Dhobhi & Ors.

ii) Criminal Case No.1720/2002 titled State V/s.

Shankarji Hakaji Mali pending Metro Magistrate

court, Ahmedabad

iii) Criminal Case No.296/2003 titled State V.

Sandeep pending in the Metropolitan Magistrate

court, Ahmedabad

iv) Criminal Case No.524/2002 titled State V.

Vishal Badrilal 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, Ahmedabad

i) CR No.982/2002 titled State v. Naresh Chahra

pending in MM 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

granted to petitioners, CJP, to amend petition to include

these Session Trials. Trials were stayed.

VI. NARODA GAON

Inadvertently left out. CJP filed a TP(Crl.) No.233/2004

and trial was 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 counsel by the State of Gujarat that the trial

is at concluding stage, in view of the orders passed in the

other cases, we feel it would be appropriate if the

inquiry/investigation including further investigation is

done, in this case also. The relevant case No.is FIR 60/02

commonly known as 'Deepda Darwaza'. So far as Writ

Petition(Crl.)No.284/03 and T.P.(Crl.)43/2004 are

concerned, the case is commonly known as 'British

Nationals Case' and relates to Himmat Nagar, Prantij P.S

district Sabarkantta and relates to FIR 1/26/2002.

We make it clear that SIT shall be free to work out

the modalities and the norms required to be followed for

the purpose of inquiry/investigation including further

investigation. Needless to say the sole object of the

Criminal Justice System is to ensure that a person who is

guilty of an offence is punished.

Mr. K.T.S. Tulsi, learned senior counsel had submitted

that in some cases the alleged victims themselves say that

wrong persons have been included by the police officials as

accused and the real culprits are sheltered. He, therefore,

suggested that trial should go on, notwithstanding the

inquiry/investigation including further investigation as

directed by us. We find that the course would not be

appropriate because if the trial continues and fresh

evidence/materials surface, it would require almost a

de novo trial which would be not desirable.

These matters shall be listed for further directions in

the last week of August, 2008.

The pleadings in all these matters be completed within

a period of three months.”

(emphasis supplied)

(j) In furtherance of the above order, the SIT published a public

notice on 28.4.2008 inviting the public wanting to share information

and record their statement(s) before the SIT, as notified. After the

publication of notice, the SIT started recording statements of

concerned persons willing to depose before it including others as

directed by this Court.

(k) In due course, the special leave petition filed by the appellant

being SLP(Crl.) No. 1088/2008 came up for hearing on 27.4.2009

when this Court passed the following order: -

“ORDER

Having heard learned counsel for the parties we direct that

complaint dated 8/6/2006 which the petitioners herein

claim to have sent to the DGP of Gujarat shall be examined

by the Special Investigation Team (in short `SIT')

constituted pursuant to the orders of this Court. The SIT

shall look into the matter and take steps as required

in law and give its report to this Court within three

months.

Call this matter after three months.

This case shall be heard along with writ petition (Crl.) No.

109 of 2003 and connected cases.”

(emphasis supplied)

supra at footnote No. 4

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 been

registered in connection with Gulberg Society case being CR No.

67/2002 and the same was committed to sessions for trial of the

named accused. Further, the special leave petition filed by the

appellant to challenge the order of the High Court refusing to issue

direction for registration of FIR on the basis of complaint of appellant

– Zakia Ahsan Jafri, dated 8.6.2006, was still pending before it.

(l) Nevertheless, vide judgment dated 1.5.2009

, this Court

vacated the stay of the trials and directed the prosecution of cases

in Special Courts; and SIT appointed by it to submit progress report.

The relevant extract 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 not earlier arrayed as accused have now been

arrayed as accused. From the details indicated above it

appears that in most of the cases a large number of

persons have been additionally made accused. Besides

this, a large number of witnesses were also examined

in each case. This goes to show the apparent

thoroughness with which SIT has worked. Therefore,

SIT shall continue to function until the completion of

trial in all the cases and if any further

inquiry/investigation is to be done the same can be

done as provided in law, more particularly, under

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

Section 173(8) of the Code of Criminal Procedure, 1973

(in short “the Code”).

xxx xxx xxx

37. Since the protection of a witness is of paramount

importance it is imperative that if and when any witness

seeks protection so that he or she can depose freely in

court, the same has to be provided. It is therefore

directed that if a person who is examined as a witness

needs protection to ensure his or her safety to depose

freely in a court he or she shall make an application to

SIT and SIT shall pass necessary orders in the matter

and shall take into account all the relevant aspects and

direct such police official/officials as it considers

proper to provide the protection to the person

concerned. It shall be the duty of the State to abide by

the direction of SIT in this regard. It is essential that in

riot cases and cases involving communal factors the trials

should be held expeditiously. Therefore, we request the

Hon'ble Chief Justice of Gujarat High Court to designate

court(s) in each district where the trial of the cases

concerned are to be held. The Designated Courts shall take

up the cases in question.

38. Taking into account the number of witnesses and the

accused persons and the volumes of evidence, it is open to

the High Court to designate more than one court in a

particular district. Needless to say that these cases shall

be taken up by the Designated Court on a day-to-day basis

and efforts shall be made to complete the trial with utmost

expedition. SIT shall furnish periodic reports if there is

any further inquiry/investigation. The State of Gujarat

shall also file a status report regarding the constitution of

the courts in terms of the directions to be given by the

Hon'ble Chief Justice of the High Court within three

months. The matter shall be listed further as and when

directed by this Court.

39. ….. The matter was then heard from time to time and

an order was then made on 26-3-2008 directing the

establishment of SIT, and for a further investigation into

these matters. The matters under investigation were those

arising out of

(a) Crime No. 9 of 2002

(b) Crime No. 100 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

cases have now been received.

40. We have considered the submissions made by Mr

Harish N. Salve, learned amicus curiae, Mr Mukul Rohatgi,

learned counsel for the State, Ms Indira Jaising and other

learned counsel. The following directions are given

presently:

(i) Supplementary charge-sheets shall be filed in each

of these cases as SIT has found further material and/or

has identified other accused against whom charges are

now to be brought.

(ii) The conduct of the trials has to be resumed on a day-

to-day basis keeping in view the fact that the incidents are

of January 2002 and the trials already stand delayed by

seven years. The need for early completion of sensitive

cases more particularly in cases involving communal

disturbances cannot be overstated.

(iii) SIT has suggested that the six “Fast Track Courts” be

designated by the High Court to conduct trial, on a day-to-

day basis, 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 these nominated cases, and the history of the entire

litigation, that senior judicial officers be appointed so that

these trials can be concluded as soon as possible and in

the most satisfactory manner. In order to ensure that all

concerned have the highest degree of confidence in the

system being put in place, it would be advisable if the

Chief Justice of the High Court of Gujarat selects the

judicial officers to be so nominated. The State of Gujarat

has, in its suggestions, stated that it has no objection to

constitution of such “Fast Track Courts”, and has also

suggested that this may be left to Hon'ble the Chief Justice

of the High Court.

(v) Experienced lawyers familiar with the conduct of

criminal trials are to be appointed as Public Prosecutors.

In the facts and circumstances of the present case,

such Public Prosecutors shall 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

seek change of any Public Prosecutor so appointed if

any deficiency in performance is noticed. If it appears

that a trial is not proceeding as it should, and the

Chairman of SIT is satisfied that the situation calls for

a change of the Public Prosecutor or the appointment

of an Additional Public Prosecutor, to either assist or

lead the existing Public Prosecutor, he may make a

request to this effect to the Advocate General of the

State, who shall take appropriate action in light of the

recommendation by SIT.

(vi) If necessary and so considered appropriate SIT may

nominate officers of SIT to assist the Public Prosecutor

in the course of the trial. Such officer shall act as the

communication link between SIT and the Public

Prosecutor, to ensure that all the help and necessary

assistance is made available to such Public Prosecutor.

(vii) The Chairman of SIT shall keep track of the

progress of the trials in order to ensure that they are

proceeding smoothly and shall submit quarterly

reports to this Court in regard to the smooth and

satisfactory progress of the trials.

(viii) The stay on the conduct of the trials are vacated

in order to enable the trials to continue. In a number of

cases bail had been granted by the High Court/Sessions

Court principally on the ground that the trials had been

stayed. Wherever considered necessary, SIT can

request the Public Prosecutor to seek cancellation of

the bails already granted.

(ix-i) For ensuring of a sense of confidence in the mind of

the victims and their relatives, and to ensure that

witnesses depose freely and fearlessly before the court, in

case of witnesses following steps shall be taken:

(a) Ensuring safe passage for the witnesses to and

from the court precincts.

(b) Providing security to the witnesses in their

place of residence wherever considered

necessary, and

wherever such a step is necessary.

(ix-ii) As far as the first and the second is concerned, SIT

shall be the nodal agency to decide as to which

witnesses require protection and the kind of witness

protection that is to be made available to such witness.

(ix-iii) In the case of the first and the second kind of

witness protection, the Chairman, SIT could, in

appropriate cases, decide which witnesses require

security of the paramilitary forces and upon his request

same shall be made available by providing necessary

security facilities.

(ix-iv) In the third kind of a situation, where the

Chairman, SIT is satisfied that the witness requires to

be relocated outside the State of Gujarat, it would be

for the Union of India to make appropriate

arrangements for the relocation of such witness. The

Chairman, SIT shall send an appropriate request for this

purpose to the Home Secretary, Union of India, who would

take such steps as are necessary to relocate the witnesses.

(ix-v) All the aforesaid directions are to be considered by

SIT by looking into the threat perception, if any.

(x) SIT would continue to function and carry out any

investigations that are yet to be completed, or any

further investigation that may arise in the course of

the trials. SIT would also discharge such functions as

have been cast upon them by the present order.

(xi) If there are any matters on which directions are

considered necessary (including by way of change of Public

Prosecutors or witness protection), the Chairman of SIT

may (either directly or through the amicus curiae)

move this Court for appropriate directions.

(xii) It was apprehension of some learned counsel that

unruly situations may be created in court to terrorise

witnesses. It needs no indication that the court shall have

to deal with such situations sternly and pass necessary

orders. SIT shall also look into this area.

(xiii) Periodic three monthly reports shall be submitted

by SIT to this Court in sealed covers.

41. List after four months.”

(emphasis supplied)

It is thus noticed that this Court permitted trial of concerned (nine)

cases including the Gulberg Society case being CR No. 67/2002 to

proceed. This judgment is also indicative of the high trust reposed

by this Court in the SIT including about directing the State

authorities to abide by the instructions given by the SIT.

(m) As directed by this Court vide order dated 27.4.2009

, the SIT

examined the complaint and also recorded statements of the

concerned persons. Mr. A.K. Malhotra, former DIG, CBI and a

member of the SIT recorded statements of total 187 witnesses and

Mr. Himanshu Shukla, DCP, Crime Branch and I.O., SIT examined

145 witnesses, in connection with the complaint of appellant – Zakia

Ahsan Jafri, dated 8.6.2006. A total of approximately 275 persons

were questioned by them in compliance with the direction given by

supra at footnote Nos. 4 and 17

this Court. Two new members came to be inducted in the SIT on

15.5.2009. When the investigation into the stated complaint was

ongoing, the SIT submitted last supplementary chargesheet in the

Gulberg Society case being CR No. 67/2002, on 12.8.2009, which

fact was placed on record before this Court.

(n) SLP(Crl.) No. 1088/2008 then came up for hearing on

19.1.2010 alongwith other cases. The Court was duly informed that

the SIT had submitted an interim report and asked for five months’

further time to complete the investigation in respect of complaint of

appellant – Zakia Ahsan Jafri, dated 8.6.2006. This Court granted

time till 30.4.2010. The order dated 19.1.2010, reads thus: -

“ORDER

In regard to the investigations in SLP(Crl.) No. 1088 of

2008, an interim report has been submitted by the Special

Investigating Team (SIT). In the said report it has been

reported that having regard to the gravity, complexity and

vast spread of the allegations across Gujarat State, a very

large number of suspects and witnesses have to be

examined. It is also reported that a large number of vital

documents are still awaited from the Government of

Gujarat. The Committee has prayed for grant of 5 months'

further time for completion of the enquiry and submission

of its final report in the matter. The Committee has also

sought direction to the Government of Gujarat to hand

over all the vital documents requisitioned by it from them.

Having perused the correspondence between the SIT and

the State Government, filed as annexures with the report,

we direct the Government of Gujarat to hand over all the

documents, which have been requisitioned by the SIT

without any further delay. The SIT would try to complete

the enquiry in the matter expeditiously and submit its

report by 30

April, 2010.

The report shall be kept in the sealed covers.

…..”

(o) On 6.5.2010, Gulberg Society case being CR No. 67/2002 was

put on hold because of the resignation of the Special Public

Prosecutor 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

learned Amicus Curiae on the allegations in the

application (I.A. No. 19816 of 2009), and discussed the

matter with him and the Chairman SIT at some length, we

feel that it would be appropriate and expedient to direct

Mr. A.K. Malhotra, D.I.G. (Retd) C.B.I. to examine all police

records in the possession of the SIT and submit a report

about the veracity of the explanation given by the SIT on

each of the points raised in the said application. The

report shall be submitted within eight weeks.

We further direct that though it seems unlikely

that the trials would conclude shortly, but if in any one

of the cases the trial is concluded before the next date,

the concerned Trial Court(s) shall not pronounce the

final judgment till further orders by this Court.

List the application along with other listed

applications for directions on 6

August, 2010.

A report has been submitted by the Chairman SIT, on

the letter of Shri Nigam R. Shukla, the Special Public

Prosecutor, in Naroda Police Station case (CR.No.98 of

2002). We request the learned Amicus Curia to assist

the Chairman, SIT in finding out suitable replacements

for S/Shri R.K. Shah and N.R. Nigam, Special Public

Prosecutors. As soon as the names are finalised by the

Chairman SIT and communicated to the State

Government, appropriate orders in that behalf shall be

issued by the authorities concerned and in both the cases,

which were being handled by them, shall resume subject

to the orders, if any, by the Gujarat High Court in transfer

petition arising from C.R. No. 67 of 2001.

The progress report in Writ Petition (Crl.) No. 109 of

2003 filed 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 in

respect of trial in Gulberg Society case being CR No. 67/2002,

directing the trial Court to proceed but not to pronounce the final

verdict. On 12.5.2010, the SIT submitted a report prepared by Mr.

A.K. Malhotra asking for time for further investigation to enquire into

the role of Mr. Gordhan Zadafia, the then Minister of State (Home),

Mr. M.K. Tandon, the then Joint Commissioner of Police, Sector-II,

Ahmedabad City 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

nominated Mr. Rohinton Fali Nariman, learned senior counsel (as he

then was) in his place, to assist the Court. In addition, the Court

directed handing over of the reports of Mr. A.K. Malhotra to the

Amicus Curiae, after taking it on record. This Court also lifted the

stay on the pronouncement of the judgment except in Gulberg

Society case being CR No. 67/2002. Relevant portion of the said

order dated 26.10.2010, reads thus: -

“O R D E R

SLP(Crl.) No. 1088/2008

At the outset, Mr. Prashant Bhushan has expressed

unwillingness to continue as the Amicus Curiae and requested

that he may be relieved from the case. We accede to the request

and appoint Mr. Rohinton Fali Nariman as an Amicus Curiae to

assist the Court in this case.

Mr. Bhushan states that he will return the papers of the

case received from the office in a sealed cover. On receipt of the

record, the office shall forward the same to Mr. Nariman.

Report dated 20th October, 2010 on further investigation

against Shri M.K. Tandan Etc. has been filed by the Chairman

and one of the Members of the Special Investigation Team.

According to the report, the investigation is likely to be

concluded within a fortnight. The report is taken on record.

Let the final report be filed before the next date. List on

2nd 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 been

discharged from the case as Amicus Curiae, both these

applications are rendered infructuous and are disposed of

accordingly.

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

In view of the subsequent developments, no further orders

are called for in this application and the same is dismissed

accordingly.

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 dated

13th August, 2010 and the submissions of learned Amicus

Curiae, we lift the restraint order passed on 6th May, 2010,

in all the cases, except in Cr. No. 67 of 2002 (Meghani Nagar

Gulbery Society case), in which case the trial may proceed

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.

A report dated 20th October, 2010 has been filed by

the Chairman, SIT, indicating the progress in trials in all

the cases. The Chairman has stated that the trials are being

closely monitored by him and other members of his team.

According to the report, the trials in all the cases, on the

whole, are proceeding quite satisfactorily.

Let a copy of the report be supplied to the learned Amicus

Curiae.

The report will be taken up for consideration on 2nd

December, 2010, at 3.00 p.m.

We direct that in future the office shall list only those

applications in which specific orders for listing are made. All the

disposed of applications shall be detached from the record and

shall not be shown in the cause list. The office shall also prepare

a complete list of all the pending applications and place before

the Court for appropriate orders on the next date.

The aforestated two reports filed by the SIT shall be

kept 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 said

respondent and seeks time to file reply affidavit. Let the needful

be done within two weeks with advance copy to the learned

counsel 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

their comments.

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

(emphasis supplied)

(q) The further report filed in this case had mentioned that most

of the allegations were not borne out from the statements and

materials collated during investigation. However, it was

recommended that further investigation under Section 173(8) of the

Code in respect of Mr. Gordhan Zadafia, 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 to this Court on

17.11.2010.

(r) As noticed earlier, on one hand, the trial concerning Gulberg

Society case being CR No. 67/2002 involving the gruesome killing of

the husband of the appellant and others by a violent mob was

allowed to proceed by this Court even when the SIT was enquiring

into the complaint of appellant – Zakia Ahsan Jafri, dated 8.6.2006;

and in that process, the deposition of Mr. Ashish Khaitan, senior

journalist (who had conducted the 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 Jafri on 22.10.2010.

(s) Further investigation report came to be submitted before this

Court by Mr. Himanshu Shukla on 17.11.2010. On 23.11.2010

Mr. Rohinton Fali Nariman, learned Amicus Curiae requested the

Court to allow him to withdraw from the case. That request was

acceded to by the Court and in his place, Mr. Raju Ramchandran

was appointed as Amicus Curiae to be assisted by Mr. Gaurav

Agrawal, learned counsel. The Court also directed handing over to

both the newly appointed Amicus Curiae, the reports of SIT. The

Amicus Curiae in turn examined the SIT reports concerning

complaint of appellant, dated 8.6.2006, and placed their

observations on record in the form of a note made over to the SIT.

This Court then vide order dated 20.1.2011, directed thus: -

“ORDER

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

Mr. Harish N. Salve, the learned amicus curiae, has

placed before us a note, pointing out that the Presiding

“ORDER

Since Mr. Rohinton Fali Nariman, Senior Advocate has expressed his inability to assist the 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 the papers received back from Mr. Prashant Bhushan, learned counsel, in sealed cover

shall be forwarded to Mr. Gaurav Agarwal.”

Judge conducting trial in Naroda Police Station I.CR

No.100/2002, has since been transferred by the High

Court in routine transfers of the Judicial Officers in the

State. Learned amicus suggests that since the trial in the

said case is at an advanced stage, the Officer may not be

shifted.

We feel that it will be proper and expedient if this

request is made by the Chairman, Special Investigation

Team (SIT) before the Chief Justice of Gujarat High Court

on the administrative side. We are confident that having

regard to the fact situation, the learned Chief Justice will

pass appropriate orders on the request of the Chairman,

SIT.

A Progress Report, dated 18th January, 2011,

regarding nine under trial cases has been filed by the

Chairman, SIT. It appears from the said report that except

for two Naroda cases, trial in other cases is nearing

completion.

In the said report, it is also pointed out that Presiding

officer looking after the trial of Gulberg Society case (Shri

B.U. Joshi) and Naroda Patiya case (Ms. Jyotsnaben

Yagnik) have been transferred out of Ahmedabad on 30

December, 2010. The report is taken on record and shall

be kept in a sealed cover.

Special Leave Petition (Criminal) No. 7046 of 2010

Ms. Kamini Jaiswal, learned counsel appearing for

the petitioners prays that orders on the petition may be

deferred for some time as she has not yet received complete

instructions in the 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.

Teesta Setalvad, one of the petitioners, explaining the

circumstances under which copies of two letters

addressed by her to Shri R.K. Raghavan, Chairman,

SIT, were endorsed to the Office of High Commissioner

for Human Rights (OHCHR), at Geneva. Ms. Kamini

Jaiswal states on instructions from Ms. Teesta

Setalvad, who is present in Court, that in future no

such letters shall be sent to the said organization. In

light of the statement, we close the issue at that.

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

Delay condoned.

No ground is made out for grant of permission to file

the Special Leave Petition. The Special Leave Petition is

dismissed accordingly.

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

Delay condoned.

Issue notice returnable on 3rd March, 2011.

SLP(CRL) NO. 1088 OF 2008

A note has been submitted by Mr. Raju

Ramachandran, learned amicus curiae, for our perusal.

A copy of the said note has also been supplied to the

Chairman, 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 in

connection with two letters addressed by Ms. Teesta Setalvad to Dr.

R.K. Raghavan, Chairman, SIT, which were also endorsed to the

Office of High Commissioner for Human Rights Council (OHCHR),

Geneva. Ms. Teesta Setalvad was called upon to explain the same.

In response to which she had to give assurance to this Court that in

future she will not repeat the act of forwarding letters written by her

to SIT to the said organisation (OHCHR) and on such assurance, the

issue stood closed.

(t) The matters were then listed on 15.3.2011, when Mr. Raju

Ramchandran, learned Amicus Curiae submitted a note, which had

already been supplied to the Chairman, SIT. The Court directed the

Chairman, SIT to look into the observations made by the Amicus

Curiae against each of the findings made by the SIT. The order reads

thus: -

“ORDER

SLP(Crl.) No. 1088/2008

A copy of the note submitted by the learned amicus

curiae has already been supplied to the Chairman, Special

Investigation Team (SIT). Let the Chairman, SIT, look into

the observations made by the learned amicus curiae

against each of the findings given by the SIT on the

allegations made in the complaint and submit his report

thereon. If considered necessary, it will be open to the

SIT to carry out further investigations in light of the

observations made in the said note. The report shall

be submitted by 25

April, 2011.

List the case on 27

April, 2011 at 3.00 p.m.

The note submitted by the learned amicus curiae

shall be kept in a sealed cover.

…..”

(emphasis supplied)

(u) What is significant to notice is order dated 5.5.2011 passed by

this Court. The same reads thus: -

“ORDER

SLP(Crl.) No. 1088/2018

Pursuant to our order dated 15

March, 2011, the

Chairman, Special Investigation Team (SIT) has filed report

on the further investigations carried out by his team along

with his remarks thereon. Statements of witnesses as also

the documents have been placed on record in separate volumes.

Let a copy of all these documents along with the report of the

Chairman be 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 the

statements of the witnesses recorded by the SIT and submit

his comments thereon. It will be open to the learned

Amicus Curiae to interact with any of the witnesses, who

have been examined by the SIT, including the police

officers, as he may deem fit.

If the learned Amicus Curiae forms an opinion that on

the basis of the material on record, any offence is made out

against any person, he shall mention the same in his report.

List on 28

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

July, 2011 at 3.00 p.m. for preliminary

hearing.

SLP(CRL.) NO. 1032/2011

Learned counsel for the respondents submit that they do

not propose to file any counter affidavit to the petition.

List the matter for final disposal on 28

July, 2011 at 3.00

p.m.

All the reports shall be kept in a sealed cover.”

(emphasis supplied)

In terms of this order, Mr. Raju Ramchandran, learned Amicus

Curiae was granted liberty to examine the SIT report, analyse the

same and give his own independent assessment of the statement of

witnesses recorded by the SIT and submit his comments thereon.

For doing that, he was also permitted to interact with any of the

witnesses, who had been examined by the SIT including the police

officials, as he may deem fit. In this two-month period, the Amicus

Curiae had interacted with all concerned, as he desired including

with Ms. Teesta Setalvad. This direction was in the nature of

permitting the Amicus Curiae to do appraisal of the actions of the

investigator (SIT) appointed by this Court. This was an extra effort

not only expected from the Amicus Curiae, but also for reassuring

the Court that each allegation in the complaint dated 8.6.2006 is

dealt with appropriately in the report submitted by the SIT. The

learned Amicus 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

deal with the observations of the Amicus Curiae on every aspect

noted in his report. This further report of the SIT was placed before

this Court on 12.9.2011. This Court being satisfied with the fact

that investigation had been completed by the SIT under its

supervision, following the decision in Bhagwant Singh vs.

Commissioner of Police & Anr.

, as well as, Vineet Narain &

Ors. vs. Union of India & Anr.

, Union of India & Ors. vs. Sushil

Kumar Modi & Ors.

, M.C. Mehta (Taj Corridor Scam) vs. Union

of India & Ors.

and Narmada Bai vs. State of Gujarat & Ors.

proceeded to pass the following order on 12.9.2011

: -

“.….

8. The learned amicus curiae has now submitted his final

report dated 25-7-2011. In light of the above conspectus

and the report of the learned amicus curiae, the question

for determination is the future course of action in the

matter.

9. We are of the opinion that bearing in mind the scheme

of Chapter XII of the Code, once the investigation has

been conducted and completed by SIT, in terms of the

orders passed by this Court from time to time, there is

no course available in law, save and except to forward

the final report under Section 173(2) of the Code to the

court empowered to take cognizance of the offence

alleged. As observed by a three-Judge Bench of this Court

in M.C. Mehta (Taj Corridor Scam) v. Union of India, (2007)

1 SCC 110, in cases monitored by this Court, it is

concerned with ensuring proper and honest

performance of its duty by the investigating agency

and not with the merits of the accusations in investigation,

which are to be determined at the trial on the filing of the

charge-sheet in the competent court, according to the

ordinary procedure prescribed by law.

10. Accordingly, we direct the Chairman, SIT to

forward a final report, along with the entire material

collected by SIT, to the court which had taken

(1985) 2 SCC 537 (paras 4 and 5)

(1996) 2 SCC 199

(1998) 8 SCC 661

(2007) 1 SCC 110

(2011) 5 SCC 79

(2011) 12 SCC 302 – Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors.

cognizance of Crime Report No. 67 of 2002, as required

under Section 173(2) of the Code. Before submission of

its report, it will be open to SIT to obtain from the

amicus curiae copies of his reports submitted to this

Court. The said court will deal with the matter in

accordance with law relating to the trial of the

accused, named in the report/charge-sheet, including

matters falling within the ambit and scope of Section

173(8) of the Code.

11. However, at this juncture, we deem it necessary to

emphasise that if for any stated reason SIT opines in its

report, to be submitted in terms of this order, that there

is no sufficient evidence or reasonable grounds for

proceeding against any person named in the complaint

dated 8-6-2006, before taking a final decision on such

“closure” report, the court shall issue notice to the

complainant and make available to her copies of the

statements of the witnesses, other related documents and

the investigation report strictly in accordance with law as

enunciated by this Court in Bhagwant Singh v. Commr. of

Police, (1985) 2 SCC 537. For the sake of ready reference,

we may note that in the said decision, it has been held that

in a case where the Magistrate to whom a report is

forwarded under Section 173(2)(i) of the Code, decides not

to take cognizance of the offence and to drop the

proceedings or takes a view that there is no sufficient

ground for proceeding against some of the persons

mentioned in the FIR, the Magistrate must give notice to

the informant and provide him an opportunity to be heard

at the time of consideration of the report.

12. Having so directed, the next question is whether this

Court should continue to monitor the case any further.

The legal position on the point is made clear by this Court

in Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661,

wherein, relying on the decision in Vineet Narain v. Union

of India, (1996) 2 SCC 199, a Bench of three learned

Judges had observed thus (Sushil Kumar Modi case, (1998)

8 SCC 661:

“6. … that once a charge-sheet is filed in the

competent court after completion of the

investigation, the process of monitoring by this

Court for the purpose of making CBI and other

investigative agencies concerned perform their

function of investigating 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 the accused, including matters falling

within the scope of Section 173(8) of the Code of

Criminal Procedure. We make this observation

only to reiterate this clear position in law so that

no doubts in any quarter may survive.”

13. In M.C. Mehta v. Union of India, (2008) 1 SCC 407, a

question arose as to whether after the submission of the

final report by CBI in the Court of Special Judge, pursuant

to this Court's directions, this Court should examine the

legality and validity of CBI's action in seeking a sanction

under Section 197 of the Code for the prosecution of some

of the persons named in the final report. Dismissing the

application moved by the learned amicus curiae seeking

directions in this behalf, a three-Judge Bench, of which

one of us (D.K. Jain, J.) was a member, observed thus:

“9. … The jurisdiction of the court to issue a writ

of continuous mandamus is only to see that

proper investigation is carried out. Once the court

satisfies itself that a proper investigation has been

carried out, it would not venture to take over the

functions of the Magistrate or pass any order

which would interfere with his judicial functions.

Constitutional scheme of this country envisages

dispute resolution mechanism by an independent

and impartial tribunal. No authority, save and

except a superior court in the hierarchy of

judiciary, can issue any direction which otherwise

takes away the discretionary jurisdiction of any

court of law. Once a final report has been filed in

terms of sub-section (1) of Section 173 of the Code

of Criminal Procedure, it is the Magistrate and

Magistrate alone who can take appropriate

decision in the matter one way or the other. If he

errs while passing a judicial order, the same may

be a subject-matter of appeal or judicial review.

There may be a possibility of the prosecuting

agencies not approaching the higher forum

against an order passed by the learned

Magistrate, but the same by itself would not

confer a jurisdiction on this Court to step in.”

14. Recently, similar views have been echoed by this Court

in Narmada Bai v. State of Gujarat, (2011) 5 SCC 79. In

that case, dealing with the question of further monitoring

in a case upon submission of a report by CBI to this Court,

on the conclusion of the investigation, referring to the

earlier decisions in Vineet Narain, (1996) 2 SCC

199, Sushil Kumar Modi, (1998) 8 SCC 661 and M.C. Mehta

(Taj Corridor Scam), (2007) 1 SCC 110, speaking for the

Bench, one of us, (P. Sathasivam, J.) has observed as

under: (Narmada Bai case, (2011) 5 SCC 79:

“70. The above decisions make it clear that

though this Court is competent to entrust the

investigation to any independent agency, once the

investigating agency complete their function of

investigating into the offences, it is the court in

which the charge-sheet is filed which is to deal

with all matters relating to the trial of the accused

including matters falling within the scope of

Section 173(8) of the Code. Thus, generally, this

Court may not require further monitoring of the

case/investigation. However, we make it clear

that if any of the parties including CBI require any

further direction, they are free to approach this

Court by way of an application.”

15. Deferentially concurring with the dictum of this Court

in the aforenoted decisions, we are of the opinion that in

the instant case we have reached a stage where the process

of monitoring of the case must come to an end. It would

neither be desirable nor advisable to retain further seisin

over this case. We dispose of this appeal accordingly.

…..”

(emphasis supplied)

(w) As per the direction given by this Court, the SIT presented its

final 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, as well

as, the Magistrate for supplying certain documents. The Magistrate

vide order dated 10.4.2012, directed supply of partial documents

and on 16.5.2012, he rejected the request for granting rest of the

documents including enquiry report, further investigation report

and statements enclosed therewith.

(y) This led to filing of SLP(Crl.) No. 8989/2012. This petition was

finally allowed on 7.2.2013 being converted into Criminal Appeal No.

273/2013. The order reads thus: -

“ORDER

Heard all the parties concerned including Mr. Raju

Ramachandran, learned Amicus Curiae.

Leave granted.

The complainant is the appellant. She filed an

application before the Metropolitan Magistrate claiming

supply of all the documents filed along with the closure

report dated 07.10.2012 by the SIT.

Before considering the claim of the appellant, it is

relevant to refer to the earlier order of this Court dated 12

September, 2011 made in Criminal Appeal No. 1765 of

2011. After going into various aspects, this Court issued

the following directions to the SIT:

“Accordingly, we direct the Chairman, SIT to

forward a final report, along with the entire

material collected by SIT, to the court which had

taken cognizance of Crime Report No. 67 of 2002,

as required under Section 173(2) of the Code.

Before submission of its report, it will be open to

SIT to obtain from the Amicus Curies copies of his

reports submitted to this Court. The said Court

will deal with the matter in accordance with law

relating to the trial of the accused, named in the

report/charge-sheet, including matters falling

within the ambit and scope of Section 173(8) of

the Code. However, at this juncture, we deem it

necessary to emphasise that if for any stated

reason the SIT opines in its report, to be

submitted in terms of this order, that there is no

sufficient evidence or reasonable grounds for

proceeding against any person named in the

complaint, dated 8-6-2006, before taking a final

decision on such ‘closure’ report, the Court shall

issue notice to the complainant 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 as enunciated by this Court in Bhagwant

Singh v. Commr. of Police & Anr. [(1985) 2 SCC

537. For the sake of ready reference, we may note

that in the said decision, it has been held that in

a case where the Magistrate to whom a report is

forwarded under Section 173(2)(i) of the Code,

decides not to take cognizance of the offence and

to drop the proceedings or takes a view that there

is no sufficient ground for proceeding against

some of the persons mentioned in the FIR, the

Magistrate must give notice to the informant and

provide him an opportunity to be heard at the

time of consideration of the report.”

Pursuant to the above direction, the SIT submitted a

final report to the Court concerned. Before the said Court,

the appellant/complainant made an application for supply

of all the materials filed before the said Court. According

to the appellant, pursuant to the directions of the

Magistrate though she was supplied certain materials, still

the SIT has not provided all the required documents. Not

satisfied with the order of the learned Magistrate, the

appellant has 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

as the impugned order passed by the Magistrate, we issue

the following directions. The appellant is entitled to have

copies of the report dated May 12, 2010 in two volumes,

excluding the Chairman’s comments forwarded to this

Court. The appellant is also entitled to have copies of

reports dated November 17, 2010 and April 24, 2011 filed

under Section 173(8) of the Criminal Procedure Code,

1973.

Since the statements recorded contain signature,

it is clarified that if the signed statements are

supplied, the same shall be treated as statements made

under Section 161 of the Code of Criminal Procedure,

1973.

It is further clarified that the statements recorded

in the inquiry shall only be used in the proceedings

relating to the complaint dated June 8, 2006 filed by

the appellant and shall not be used for any other

purpose or in connection with any other case. We also

clarify that the present order is confined to the facts

and circumstances of the complaint dated 8

June,

2006 and shall not be treated as a precedent, in any

other case.

The appellant is granted eight weeks’ time for filing

the protest petition from the date she gets the required

copies as mentioned above.

In view of the above conclusion and direction, the

impugned orders of the learned Magistrate dated

16.07.2012 and 27.11.2012 are set aside to the extent

mentioned above. The appeal is disposed of in the above

terms.”

(emphasis supplied)

This order, besides issuing directions, as prayed regarding

furnishing of documents, also clarified the position that the

statements recorded by the SIT pursuant to the investigation

undertaken after 27.4.2009 in respect of the allegations in complaint

dated 8.6.2006, be treated as statements of witnesses under Section

161 of the Code, which, however, cannot be used for any other

purpose including the trial of Gulberg Society case being CR No.

67/2002.

(z) Only after getting all the material accompanying the report,

appellant – Zakia Ahsan Jafri proceeded to file a protest petition on

15.4.2013 before the Metropolitan Magistrate. The Magistrate, after

considering the protest petition and the final report of the SIT dated

8.2.2012, by a speaking order dated 26.12.2013, rejected the protest

petition filed by appellant and accepted the final (closure) report filed

by the SIT and passed consequential order.

(aa) Against this decision, appellant carried the matter before the

High Court by way of the stated criminal revision application, which

came to be disposed of vide impugned judgment and order dated

5.10.2017, with liberty to appellant to agitate the issue of further

investigation upon availability of new material/information. Against

the said decision, the present appeal from special leave has been

filed.

(bb) To complete the narration of relevant facts, we may also advert

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

the Chairman of the SIT from his responsibility. The said order

reads thus: -

“O R D E R

1. While placing on record our appreciation for the services

rendered to this Court by the learned Amicus Curiae, we are

immensely satisfied with the manner in which the proceedings

had been conducted in all the trials, resulting in the conclusion

of all but one trial.

2. Learned Amicus Curiae has made a request on behalf of Shri

R.K. Raghavan, the Chairman of the Special Investigation Team

(SIT), seeking to withdraw from the SIT hereinafter, on account

of his ill health. We appreciate the request made, and release

him from his responsibility as the Chairman of the SIT.

3. A similar request has been made for the release of Shri K.

Venkatesham. The instant request is based on the fact, that

Shri K. Venkatesham has since been appointed as

Commissioner of Police, Nagpur, and therefore, his onerous

responsibility leaves him limited time to deal with other issues.

For the reasons brought to our notice, we hereby 1 relieve Shri

K. Venkatesham from the duties vested in him as a member of

the SIT.

4. In the above view of the matter, we would request the

remaining member of the SIT, namely, Shri A.K. Malhotra, to

continue to discharge the responsibility hereto before entrusted

to the SIT, himself. Shri A.K. Malhotra shall furnish quarterly

reports to this Court.

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. The

first being the SIT has jumped to the conclusion that no offence is

made out against the persons named in the complaint/protest

petition despite material and statements collated by it during

investigation indicating to the contrary. Additionally, the failure of

the SIT to investigate into crucial allegations/material referred to in

the protest petition.

(b) The second is about the failure of the Metropolitan Magistrate

in exercising the powers vested in him including to take cognizance

of the offence and in not directing further investigation by the SIT in

respect of certain matters. Even the High Court has committed the

same fatal error. Reliance is placed on Vishnu Kumar Tiwari vs.

State of Uttar Pradesh & Anr.

, to buttress these points. As held

in Abhinandan Jha & Ors. vs. Dinesh Mishra

, there is no

obligation on the Magistrate to accept the final report. It is open to

the Magistrate to take cognizance if he is so satisfied by invoking

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

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

powers under Section 190(1)(c) of the Code including to direct

further investigation.

grounds on which final SIT report was being opposed. The same

read thus: -

“31. The Petitioner submits that the Closure Report needs to be

rejected and the Protest Petition allowed on the following

grounds, which are in addition to the reasons and grounds set

out elsewhere in this Petition:

a) The Documents and annexures as submitted by the

SIT along with the closure report make out a clear case

for taking cognizance against all the accused;

b) Without prejudice to the above, the SIT while

investigating, has not examined all the necessary

witnesses or called for all the necessary documents as

set out in the Petition. In view of this the Investigation

is defective and incomplete. Further investigation

therefore needs to be ordered to arrive at the whole

truth;

c) Without prejudice to the above, the SIT's analysis of

the statements of witnesses and other documents is

hopelessly biased, inaccurate, and suffers from total

non application of mind.

d) SIT has taken great pains to disbelieve and discredit

any witnesses who have spoken against the Accused

No.1 or for that matter against any accused. Besides,

the witnesses who were favouring Accused were not

confroned with relevant documents and statements.

e) SIT was required to ascertain whether there is any

substance to proceed against the accused persons and

once it comes to the conclusion that such substance

exists it should have proceeded to file a Charge Sheet.

Such substance exists against all the accused. There

are witnesses and documents to cast reasonable doubt

against the conduct of all the accused and pointing

towards their culpability. For instance, the statements

of senior officers like RB Sreekumar, Rahul Sharma,

Sanjiv Bhatt as well as the Tehelka tapes (validated by

the Sessions Court) are enough to file a charge sheet/

take cognizance. Instead of doing this, the SIT has acted

like a super court dissecting every bit of evidence,

turning and twisting it, ignoring relevant material and

accepting uncorroborated irrelevant material to

somehow whitewash this entire exercise. Worse the SIT

has deliberately and manifestly ignored the huge

voluminous evidence that is available on record. SIT has

acted beyond its jurisdiction as an Investigating Agency.

In fact this Hon'ble Court ought to disregard the SIT

Report altogether and look at the gathered evidence

independently to arrive at the conclusion that

cognizance ought to be taken.

f) Apart from anything it needs to be verified whether

the Closure Report is based on a collective application

of mind by SIT as a whole or not. Large number of

documents/ statements are in Gujarati. Admittedly

they have not been translated. Majority of the SIT

members cannot read Gujarati. In order to decide the

weight to be attributed to each of the statements/

document it was necessary that the SIT, as a collective

applied its mind to these documents. In the absence of

any translations it is not clear as to how the SIT has

come to the conclusions it has arrived at.

g) The Petitioner submits that against each of the

accused there is sufficient material to take cognizance

of offences of conspiracy 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 also been filed for hate

speech.

h) SIT should have considered that once a public

servant is held to be negligent in performing his duties,

and if any criminal offence has taken place, he ought to

be automatically charged with abetment. This is so

because the definition of abetment includes acts as well

as omissions. SIT has come to the conclusion that

Accused Nos - 33 then Joint Commissioner of Police MK

Tandon and then DCP Zone IV PB Gandia, were

negligent in their duties: Having arrived at this

conclusion, SIT had no option but to charge them with

the criminal offence of abetment at least as the

negligence did result in offences being committed or not

being prevented.

i) SIT should have held that the statements and the

documents which have been gathered make out a clear

case of conspiracy against all including Accused No. 1.

j) The Petitioner submits that as has been held by

various courts a conspiracy is usually hatched in

secrecy and very rarely there is direct evidence of this.

The offence can only be proved largely from inference

drawn from acts or illegal omissions committed by the

conspirators. Even at the time of trial, there need not be

proof of express agreement. The agreement can be

proved by necessary implication. Besides, it is not

necessary that all the conspirators participate in all the

offences resulting from the conspiracy though they

would be liable for each one of them.

k) In the present case direct evidence exists in terms of

Sanjiv Bhatt 's testimony about at least one part of the

conspiracy being hatched at the meeting held on

27.2.2002. Once this evidence is available it is for the

trial court to decide what weight to attribute to it. It is

not for the Investigating Agency to dissect this evidence

with a view to discredit the same.

l) In any event, without prejudice to whether Mr. Modi

made the statement attributed to him in the meeting on

27.2.2002 the fact that the meeting took place is not

disputed. One has to therefore to look at the subsequent

and prior events to decide as to what could have

transpired at this meeting. It is obvious that as the

event reflect a conspiracy was hatched at this meeting

to allow the people to vent their anger (justified or

otherwise, instigated or otherwise, organized or

otherwise) and not to intervene when offences are

committed. In addition the forces were encouraged to

abet this ire and to assist the people in venting it and at

times to participate in it. Anyone who tried to maintain

law and order was penalized. The conspiracy was very

clear and played out over the next few days.

m) The Petitioner further submits that the offences of

conspiracy and abetment along with the responsibilities

of public servants have, independently or together

introduced the concept of command responsibility

under our criminal law. Therefore any public servant

shall be criminally responsible for crimes committed by

forces or officers under his or her effective authority and

control, as a result of his failure to exercise control

(preventive or punitive) over these crimes. This would

include the Chief Minister/ Home Minister, other

Ministers, police and bureaucratic top brass. This is

more so since in the present case they knew or owing to

the circumstances at the time, should have known that

the forces were committing or about to commit such

crimes. It is further because the said public servants

failed to take all necessary and reasonable steps to

prevent or repress their commission or to submit the

matter to the competent authority for investigation or

prosecution.

n) The Chief Minister/ Home Minister was directly in

charge of law and order in the State. Under his aegis

crimes were committed. No steps were taken to curb

these crimes. Just to give an example, preventive

arrests were essential once the Bandh call was made.

These are required for prevent commission of offence.

No such arrests were made making the Home Minister

downwards all responsible for crimes having been

committed for failure to carry out preventive arrests.

Besides, if instructions were given to make preventive

arrests and they were not carried out then failure to

take steps against the officers for not having done

preventive arrests itself will amount to failure to

discharge duties as a public servant and abetment.

o) SIT has misdirected itself in looking at the allegations

and events in a piecemeal manner rather that a holistic

manner. What was needed to be done was to look at

events prior to 27.2.2002, on 27.2.2002 and

subsequent to 27.2.2002 to see if a common thread

emerges. If this was done an obvious and apparent link

between all these events and conduct of the accused

comes out which would be sufficient to charge them

with conspiracy and abetment, apart from other

offences.

p) We further submit that offences under S.153 A and

B have been made out against accused who were

charged with the same in our complaint and the SIT

ought to have filed Charge Sheets in respect of the

same.”

(d) Besides the aforesaid points, in the course of arguments and

in the written submissions, it has been urged as follows: -

(1) It is urged that Article 21 of the Constitution not only

guarantees protection of law to all, but it also includes

corresponding obligation on the State to fairly investigate the

criminal cases and prosecute the persons involved in

commission of such crime as per the law. The provisions in the

form of the Code is the procedure established by law within the

meaning of Article 21. In the present case, the SIT failed to

investigate into crucial matters in the spirit of mandate of

Section 156 of the Code and it is also failure of the Magistrate

in exercise of powers to the fullest extent predicated in Section

173 read with Section 190, in particular, sub-Section (1)(b) of

the Code. Even the High Court fell foul of the same error while

dealing with the revision application of the appellant.

(2) The complaint dated 8.6.2006 was only a piece of

information. The stand taken by the SIT that allegations

beyond complaint cannot be looked at, is legally untenable. If

such a plea is countenanced, it would result in equating with,

or limit the enquiry as in the case of scrutiny of a plaint in a

civil suit, wherein the plaintiff is bound by the

averments/contents of the complaint. The order passed by this

Court directing the SIT to “look into” the complaint, in no way

constricted the jurisdiction of the Magistrate to direct scrutiny

of allegations, which come to the fore, consequent to filing of

protest petition.

(3) The fact that appellant – Zakia Ahsan Jafri was relegated

by this Court to file protest petition if the situation so

warranted, was not to curtail the powers of the Magistrate

including to direct further investigation. In fact, the order of

this Court indicates that it was open to the Magistrate to

exercise all powers vested in him for dealing with the issues

that may arise upon presentation of final SIT report and protest

petition by appellant – Zakia Ahsan Jafri.

(4) It is significant to note that the complaint dated 8.6.2006

referred to matters not limited to events unfolding in and

around the Gulberg Society crime, but also about the series of

activities and actions pointing towards the instructions being

issued from the highest authority bordering on conspiracy and

abetment. The order of this Court dated 7.2.2013 reinforces

the stand taken by the appellant that the Magistrate had ample

power to issue directions to SIT for further investigation into

the relevant matters including referred to in the protest

petition. Reliance was placed on Abhinandan Jha

and

Popular Muthiah vs. State represented by Inspector of

Police

(5) It is urged that it was the duty of the Magistrate to issue

process and only after recording the evidence of the concerned

witnesses, a conclusion could be reached about the

truthfulness of the version and the piece of evidence in support

supra at footnote No. 28

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

of the accusation. Reliance was placed on State of Gujarat

vs. Afroz Mohammed Hasanfatta

(6) According to the appellant, following issues have not been

dealt with by the Magistrate and the Gujarat High Court:

(i) Provocative behaviour was followed up by mass

mobilisations and hate speech on 27.2.2002 as part of

the wider conspiracy. As early as 12:30 p.m. on

27.2.2002, a State Intelligence Bureau

officer

communicated to the headquarters that there were

reports that some dead bodies of Godhra victims would

be brought to Kalupur Station in Ahmedabad and

incidents will occur in Ahmedabad city and preventive

action had to be taken. Home Department at

Gandhinagar received more than eight messages

intimating about the Godhra incident, the VHP call for

a bandh and about violence taking place in Valsad and

other places.

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

for short, “SIB”

(ii) Detailed documentary evidence from the SIT

investigation papers pieced together meticulously in the

protest petition reveals that SIB Messages had noted

systematic and violent mobilisations all over the State

on 27.2.2002 within minutes of the Godhra tragedy.

Despite these warnings, neither the Home Department

nor the law-and-order machinery made preventive

arrests or protected innocent lives. Kar Sevaks with

saffron scarves continued shouting anti-Muslim

slogans after incident; more VHP workers gathered at

spot and even after curfew had been declared at 10 a.m.

Even after deployment of SRP and Railway police

reinforcements, attempts to burn Muslim shops was

taking place at Godhra. Since the investigation of the

Godhra incident was by the Railway Police, it was their

responsibility to deal with dead bodies.

(iii) By about 1.00 p.m. in the afternoon violent and

murderous attacks at Vadodara and Anand had taken

place and by the evening the same had spread far and

wide across the state.

(iv) VHP Press Release carried exaggerated accounts of

the Godhra incident. By the evening and late night of

27.2.2002, SIB messages from Godhra to Bhavnagar,

Mehsana to Viramgam (far flung districts of Gujarat)

recorded aggressive mobilization and provocative

speeches being made exhorting the mob/citizens to

attack Muslims.

(v) An analysis of phone call records officially

procured by former IPS officer – Mr. Rahul Sharma and

presented to the Nanavati-Shah Commission, had been

made and evidence of elected representatives talking to

some of the offenders/accused etc. was presented to the

SIT. The following aspects were not substantively

investigated. For example:

(1) The mobile phone records show that

Mr. Bhatt, named in the Zakia Jafri Complaint

dated 8.6.2006, was in touch with doctors from

outside the Godhra city, after which post

mortems of the Godhra victims were carried out

in the open in the Railway Yard.

(2) The mobile phone records also had

illustrative details of the phone call records of

then Additional Commissioner of Police - Mr.

Shivanand Jha. That has not been

investigated.

(3) Similarly, the mobile phone call records of

Mr. Dinesh Togadia etc. of the VHP and other

functionaries, had been mentioned but

remained uninvestigated.

(4) The mobile phone call records dated

27.2.2002 of Dr. Praveen Togadia, International

General Secretary, VHP, similarly remained to

be investigated.

(5) Ahmedabad city recorded 14 Incidents of

targeted Violence even as the VHP and its

members continued making incendiary and

inflammatory speeches.

(6) The Gujarat Police Manual and Booklet to

Prevent Communal Violence (specific to

Gujarat) lay down meticulous SOPs (Standard

Operating Procedures) - that were not

followed at all in the wake of the Gujarat

tragedy.

(7) Despite the SIT papers containing

documentary evidence of such more instances of

attacks and aggression including hate speech,

the SIT concealed these in its final report and

deliberately avoided recording of any conclusion

therein.

(e) The SIT has clearly failed to take into account the material

appended to the complaint dated 8.6.2006, such as report titled

“Crimes and Humanity” published in 2002 by the Concerned

Citizens Tribunal

, headed by former Judges of this Court and

affidavits filed by the officials of the State before the Nanavati-Shah

Commission. The narrative discernible from this material has not

been examined by the SIT in its proper perspective despite

suggestive of strong case for investigation into a systemic and

widespread conspiracy of subversion and inaction by law

enforcement, bureaucracy and elected representatives entailing in

systemic outbreak and spread of targeted violence across the State.

for short, “CCT”

Even the NHRC had to step in to force the State to take corrective

measures and ensure justice to the riot victim survivors.

(f) It was urged that the SIT was expected to follow the procedure

prescribed by law while dealing with the materials/statements

collated during investigation and more particularly, relied upon by

the appellant. As a matter of fact, the SIT failed to investigate into

the crucial aspects referred to in the protest petition. It is submitted

that the rationale for protest petition has been expounded in

Abhinandan Jha

and Bhagwant Singh vs. Commissioner of

Police & Anr.

It is not only open to the informant to file protest

petition, but also to any injured person on all aspects concerning the

complicity of concerned persons in the commission of alleged crime.

That is what was perceived by this Court while disposing of the

special leave petition filed by the appellant in the earlier round, vide

judgment and order dated 12.9.2011

. The real intent and purpose

of the direction issued by this Court in the earlier round has been

supra at footnote No. 28

supra at footnote No. 21

supra at footnote No. 26

whittled down by the SIT, as well as, by the Courts in not examining

all aspects raised by the appellant by way of protest petition.

(g) In support of this grievance, emphasis is placed on the nature

of enquiry done by the SIT in respect of Tehelka Sting Operation,

and in not examining the crucial witnesses. The contents of sting

operation were clearly indicative of the genesis of communal

violence, which transformed lava erupting from a volcano, destroying

the fertile ground. The SIT had glossed over crucial materials, such

as statement of Dhawal Jayantilal Patel, the then VHP District

Convener, Sabarkantha and Anil Patel, VHP Vibhag Pramukh,

Sabarkantha on the specious plea of the efficacy of the extra judicial

confession of another person. Reliance is placed on the decision of

this Court in H.N. Rishbund & Anr. vs. State of Delhi

and Gura

Singh vs. State of Rajasthan

(h) The Courts (Magistrate/High Court) have failed to deal with the

allegations pertaining to sting operation indicative of build-up before

the incident and support of the high authority. Allegations against

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

(2001) 2 SCC 205 (para 6)

Mr. Anil Patel were not investigated nor was he arrested, despite the

extra judicial confession on record to indicate his complicity. No

question has been put to him regarding Tehelka Tape and its

contents. Similarly, the Magistrate has erred by going into the

veracity/truthfulness or otherwise of the material on record. That

could be done only at the stage of trial. The limited role of the

Magistrate at this stage is to prima facie examine the material on

record to find out the case of reasonable suspicion to take

cognizance of the crime against the named offenders, as held in S.K.

Sinha, Chief Enforcement Officer vs. Videocon International

Ltd. & Ors.

(i) It is further urged that in the interests of justice, as the detailed

protest petition alongwith exhaustive documentary evidence was

presented, the Magistrate ought to have taken it as a complaint and

directed further investigation in respect of issues raised therein. In

the protest petition, the complainant has dealt with whole series of

events and supporting documents and not a single or stray

document from the investigation record, and relying on the totality

(2008) 2 SCC 492 (para 22)

of the circumstances, the allegation regarding larger criminal

conspiracy has been set forth. It is her case that the incident of

violence across the State of Gujarat after Godhra incident on

27.2.2002, was encouraged and condoned and overtly supported by

the State Government owing to their actions and omissions on the

part of the State constituting criminal conspiracy. The actors in the

said criminal conspiracy were broadly in four groups. To wit,

political establishment, bureaucrats, police officers and private

organisations and individuals.

(j) It has been further asserted that the Magistrate and the High

Court have failed to deal with the following aspects in the context of

issues raised in the protest petition: -

(i) The first component is about conspiracy in regard to the

prelude and build-up before the Godhra incident on 27.2.2002.

It has been mentioned in the protest petition that the

establishment allowed generation of deepened feeling of hatred

towards a particular community, as can be discerned from the

SIB record/messages from at least 12.2.2002 onwards and also

transcript of the Tehelka Sting Operation.

(ii) The second is about the inaction of the named

offender/political/police/bureaucrat functionaries after being

intimated about Godhra incident, hate speeches and mob

mobilizations across the State on 27.2.2002.

(iii) The third is about the inaction/non-response of all the

authorities including police, fire brigade, other functionaries,

by not promptly deploying Army, imposing curfew and taking

preventive measures and making prompt arrests of the culprits

after outbreak of mass violence across the State post

27.2.2002.

(k) The ingredients of the conspiracy had been outlined in the

complaint dated 8.6.2006 and restated with further details and

evidence in the protest petition in the shape of the actual official

messages indicative of systemic build-up of communal tension

before 27.2.2002. The transcript of Tehelka Sting Operation

reinforces the facts stated in the said messages. Notably, the tapes

of the sting operation have been authenticated by the CBI

consequent to direction given by the NHRC and in fact, used by SIT

in the cases investigated by them pursuant to the direction of this

Court. These crucial aspects are suggestive of larger criminal

conspiracy. However, the same had been conveniently glossed over

by the SIT.

(l) To buttress the usefulness of Tehelka Sting Operation, the

appellant is relying on the transcripts of Mr. Anil Patel, VHP Vibhag

Pramukh, Sabarkantha, Mr. Deepak Shah, member of BJP,

Vadodara Unit, Mr. Haresh Bhatt, VHP and Bajrang Dal member,

Mr. Rajendra Vyas, President, VHP, Ahmedabad City, Mr. Ramesh

Dave, Kalupur Zila Mantri, VHP and Babu Bajrangi, a Bajrang Dal

activist to urge that these were in the nature of extra judicial

confessions and the persons should have been proceeded for

appropriate offence in the context of their utterances and

disclosures. These transcripts were so revealing that no person with

ordinary prudence would disagree with the stand of the appellant

that the same are replete with strong suspicion, warranting penal

action. The Magistrate, however, disregarded this sting operation by

relying on the dictum of this Court in Piara Singh & Ors. vs. State

of Punjab

. Whereas the issue regarding admissibility of extra

(1977) 4 SCC 452

judicial confession is a triable issue and cannot be answered at this

stage.

(m) As a matter of fact, Mr. Ashish Khaitan, the author/maker of

the sting operation, had been examined as prosecution witness by

the SIT including in Gulberg Society case being CR No. 67/2002.

Even for this reason, it was not open to the SIT or the Courts to

disregard the said material 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 appeal

against acquittals in Gulberg Society case being CR No. 67/2002 for

reasons best known to them. In substance, there was clear evidence

regarding conspiracy and corroborated by sting operation and the

affidavit of Mr. R.B. Sreekumar, an IPS officer [the then Additional

Director General of Police (Intelligence)], which have been

conveniently discarded by the SIT and by the Courts.

(o) The requisition of the NHRC order by the SIT (directing CBI to

authenticate Tehelka Sting Operation and the CBI’s detailed report

on the same), was followed by a submission of the entire complete

authenticated transcripts of the Tehelka Sting Operation by the

appellant to the SIT investigating her original complaint (dated

8.6.2006) vide letter dated 24.3.2010. In that communication, the

appellant also mentioned in detail, various aspects of the matter that

need to be thoroughly investigated by the SIT, given the evidence in

these extrajudicial confessions of a wider conspiracy and abetment

to widespread targeted crimes. The detailed letter by the appellant

to the SIT indicating the issues that need to be investigated, is a

testimony of the fact that the investigating agency is being urged

since 2010 to investigate the Sting Operation thoroughly. The

complete transcripts, total 490 pages, had been provided to the SIT

by the appellant.

(p) In the detailed authentication document of the CBI, the CBI

officer authenticates the Sting Operation after forensic voice-tests

were performed on those on whom the Sting Operation was

conducted. In the said Authentication Report, the CBI officer says:

“13. On the basis of the above said enquiry, following

conclusions can be drawn:

i. The recordings in the 'Sting Operation' are found to be

authentic as per Forensic Science Laboratory Report.

ii. Most of the concerned persons appearing in the Sting

Operation have admitted that they were contacted and

that they have talked on the subject of Gujarat Riots,

which has been recorded during the sting operations.

14. The original statements and the laboratory report are

enclosed herewith. The P.E. is being closed.

15. Special Investigation Team (SIT), formed by Hon'ble

Supreme Court to further investigate certain Gujarat riot cases,

vide their letter dtd.03.02.2009 and reminder dtd. 28.04.2009

have asked for equipment and recordings collected by the CBI.

This is for information of NHRC and comments/ instructions,

if any.

16. This is for the information of NHRC and necessary action

at their end please against High Court order.”

(q) Meanwhile, the SIT appointed by this Hon’ble Court, whose

mandate of investigation was extended, to also investigate the wider

conspiracy into the violence that rocked the State of Gujarat in 2002,

recorded the statement of Mr. Ashish Khaitan on 27.8.2009, the

reporter who carried out the Sting Operation.

(r) In a parallel development that further gives authenticity and

legitimacy to the Sting Operation, Mr. Ashish Khaitan deposed as

prosecution witness (PW-322) in the Naroda Patiya case on

19.12.2011. On 29.8.2012, in its judgement convicting 31 persons

of the widespread massacre at Naroda Patiya, the Special Sessions

Judge made strong observations accepting the Sting Operation as

corroborative evidence. On the basis of this validation, two persons

were convicted in this case.

(s) Notably, the SIT appointed by this Hon’ble Court who

investigated the Zakia Jafri complaint dated 8.6.2006 was/is also

the prosecuting agency in the trials transferred to the SIT for further

investigation including the Naroda Patiya and Naroda Gaam trial. It

is, therefore, inexplicable and clear evidence of the compromised

nature of the SIT investigation despite being the agency entrusted

with a sensitive task by this Court, who failed to thoroughly

investigate the leads and implications laid out in the

conversations/extra-judicial confessions revealed in Tehelka Sting

Operation.

(t) It has been urged that relevant facts noticeable from the

transcript of the Sting Operation regarding manufacture of arms and

bombs, bringing in the same from neighbouring States and other

aspects of wider conspiracy elucidated therein, have been completely

ignored by the SIT and also by the Courts. The transcripts also

reveal the involvement of senior officers of the Court, Advocates and

public prosecutors, whose names are mentioned in the SIB

messages in the build-up and communal mobilizations and

reportedly involved in the intimidation 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 further investigation into these

aspects.

(u) The original complaint submitted by appellant - Zakia Ahsan

Jafri relies on slew of 23,000 pages of official record and non-official

documents and records indicative of inaction/failure of public

servants and elected representatives bordering on carefully woven

conspiracy.

(v) There was message indicating stockpiling of arms and also

mob-gathering with impunity from the early morning of 28.2.2002

when the dead bodies were brought to Sola Civil Hospital,

Ahmedabad and breaking 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 by armed mob intending to kill and burn them.

No arrests were made of the aggressors, much less preventive

arrests.

(w) The loss of life in such mass violence was mainly of persons

belonging to minority community. The unruly mob was emboldened

because of the Bandh call supported by the State. The women and

children were also not spared during such violence and the police

remained a 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,

20.8.2002 and 28.8.2002 to the Home Department were deliberately

ignored. These reports had suggested strong corrective measures

for restoration of normalcy.

(y) Even the report submitted by Mr. E. Radhakrishnan, an IPS

officer (the then Deputy IG) to the Director General of Police, as late

as August, 2002, recommending remedial measures, was not acted

upon despite the spread of communal violence reported from 993

villages and 151 towns covering 284 police stations (out of 464 police

stations) spread over to 154 Assembly constituencies out of 182

Assembly constituencies.

(z) The statements made by Mr. Maniram, ADGP (Law and Order),

Mr. P.C. Pande, the then Commissioner of Police, Ahmedabad, Mr.

K. Chakravarthi, Director General of Police, Gujarat and Mr. Ashok

Narayan, Additional Chief Secretary (Home), reveal the deliberate

inaction and failure of the high officials and elected representatives.

To aggravate the situation, there was intentional delay in

deployment of Army and declaring curfew at the earliest opportunity.

(aa) The SIT has also not enquired into the matters highlighted in

the report of NHRC nor made any attempt to record any statement

of officials or the Chairperson of the Commission. The NHRC report

refers to several aspects including experience of a sitting Judge of

the High Court owing to the violent mob entering his premises. The

Statement of the Judge had not been recorded by the SIT.

(bb) The Courts have also failed to deal with the material regarding

provocative behaviour followed by mass mobilizations and hate

speeches post 27.2.2002 as part of the wider conspiracy. The SIB

officer had communicated to the headquarters as early as 12:30 pm,

on that day itself, that there were reports that some dead bodies of

Godhra victims would be brought to Kalupur Railway Station,

Ahmedabad, which may result in causing communal disturbance all

across. Despite such warning, neither the Home Department nor the

law-and-order machinery took preventive measures to protect the

innocent lives and more so, even after growing violence and

murderous attacks at Vadodara and Anand happening by the

evening and spreading across the State. On the other hand, no

action had been taken against VHP office bearers for issuing press

release exaggerating the accounts of Godhra incident.

(cc) It was urged that the final (closure) report was erroneously

tendered by the SIT before the Metropolitan Magistrate and not in

the sessions trial concerning Gulberg Society case being CR No.

67/2002.

(dd) The SIT also failed to thoroughly investigate the messages of

the SIB, which formed part of the affidavit of Mr. R.B. Sreekumar,

and was made available to the SIT. The contents of these messages

support the allegation of build-up of a conspiracy even prior to

27.2.2002, in respect of which no corrective steps had been taken

by the administration and persons in authority.

(ee) There was enough material with the SIT regarding the factum

of hasty post-mortems carried out on the dead bodies in open

Railway yard under the directions from the highest authority, so as

to ignite emotions giving fillip/impetus to build up and cause

communal disturbances and widespread violence. Not only that, the

charred bodies of dead persons were caused to be paraded and

allowed to be taken by private person (VHP office bearer) in open

vehicles from Godhra to Ahmedabad without observing essential

protocols for the same purpose. Relying on Rule 223 in the Gujarat

Police Manual, it was urged that despite the prohibition, the

photographs of mutilated bodies were taken and no enquiry in that

regard has been made. None of the statements recorded by the SIT

explain as to why such photographs were allowed.

(ff) There is contradiction in two different reports submitted by the

SIT before this Court and support the allegation of preparation for

organising widespread violence after Godhra event.

(gg) The authorities produced the relevant contemporaneous

official record after lapse of almost nine years, although it was very

much available with the Government even earlier when it was

required to produce before the concerned forum. That was not done

on the specious plea of non-availability of such a record.

(hh) No investigation has been done regarding the factum of

intentional delay in imposing curfew and to bring in Army including

for its immediate deployment by providing logistical assistance to

control the 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 penal action.

(jj) There was enough material to suggest that the police

administration was under complete control of political heavyweights

and Ministers under instructions from the top (Chief Minister). That

was evident from the presence of the Ministers in the police Control

Room and issuing directions to the local police.

(kk) According to the appellant, the facts emerging from the

materials referred to in the protest petition are so telling that no

other inference except that the named persons had committed

offence, can be drawn, particularly regarding larger conspiracy. In

that, no preventive measures 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 was against the persons belonging

to minority community. Further, when the violence erupted across

the State, no effort to douse the emotions of the violent mob was

seen to be taken by the persons in authority, both by political

dispensation and bureaucracy and police. The persons indulging in

the gruesome activity were not arrested, much less stopped from

doing so. Furthermore, when it came to investigation, ‘A’ Summary

Report(s) came to be filed in most of the cases, which was a clear

reflection on the failure of police administration, investigating such

horrendous crime. Intriguingly, the persons who were arrested by

the local police, were released on bail or interim bail obviously

because of the (intentional) lackadaisical approach of the public

prosecutor(s). Not only that, the investigating machinery opted to

accept the version of the offender as a gospel truth and doubted the

statements of the victims of crime. The malice not only pervaded in

the local police, but also in the manner of investigation by the Court

appointed SIT. No investigation whatsoever has been done regarding

pre-Godhra incident conspiracy, carrying funeral procession on the

basis of instructions to officials and handing over dead bodies for

that purpose to private persons (Hasmukh Patel, Secretary of the

Eastern Wing of VHP, Ahmedabad and Jaideep Patel, Gujarat

Secretary of VHP, Naroda Gao/Gaam, Ahmedabad) including issuing

instructions from the top (Chief Minister) to all the officials to give

free hand to the mob. Even post Godhra incident, conspiracy before

the unfolding of the violence across the State on 28.2.2002 has not

been taken note of nor any FIR registered in that behalf, 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 of

the concerned persons recorded by the SIT as gospel truth and have

arrived at conclusion on that basis. This, amongst others, is a

manifest error committed in dealing with the issues on hand. The

Magistrate while dealing with the protest petition and the final report

ought to have applied the scale of strong suspicion emanating from

the materials collected by the SIT. And that was enough to proceed

against the perpetrators. From the undisputed document(s), even a

layman would be able to decipher that a case of strong suspicion

about the involvement of the named persons in the commission of

offence has been clearly made out. Reliance is placed on State of

Bihar vs. Ramesh Singh

and State (Delhi Admn.) vs. I.K.

Nangia & Anr.

to urge that if suspicion can be deduced from the

record, that would be enough for Magistrate to take cognizance. It

is further urged that even if it is not a case of strong suspicion, the

Magistrate was obliged to direct the SIT to do further investigation

(1977) 4 SCC 39

(1980) 1 SCC 258 (para 6)

on relevant aspects/allegations including in respect of matters

outside the complaint, but specifically noted in the protest petition.

It was the bounden duty of the Magistrate to so direct, and also

primary responsibility of the SIT to investigate every piece of

information which had come to the fore by way of complaint or the

protest petition.

(mm) It is submitted that the larger conspiracy material was not

investigated in Gulberg Society case being CR No. 67/2002 and for

that reason, it was essential to investigate every aspect regarding

larger conspiracy.

(nn) It is submitted that the stand taken by the SIT on the basis of

material collated during investigation, in no way indicated that mass

violence had triggered till 1.00 p.m. on 28.2.2002. This stand is in

conflict with the fact of sending requisition to call for Army at about

2.30 p.m. on 28.2.2002. This is a clear reflection on the approach

of the SIT to obfuscate the enquiry.

(oo) The approach of the SIT to record the statements of persons

named as offenders and to accept explanation given by them to form

its opinion thereby exculpate those persons is ex-facie fallacious.

For, the explanation offered by the offenders would be a matter of

their defence in the trial. The material indicating their complicity

cannot be disregarded and veracity thereof could be tested only

during the trial. Notably, not even a single statement of victim has

been recorded by the SIT.

(pp) As a matter of fact, neither the local police nor the SIT has

undertaken the task as is exposited by the expression

“investigation”, as defined in Section 2(h) of the Code. The

expression “investigation” also means finding out footprint of the

statement/allegation, which is to undertake the meaningful

investigation in respect of every singular aspect. The SIT has not

maintained the purity in investigation and failed to investigate

crucial aspects warranting further investigation.

(qq) The officers, who collaborated in the conspiracy, were

eventually 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 fire

brigade facility was consciously denied to the persons belonging to

the minority community. The frantic phone calls made by them were

not even attended to, despite the emergent situation faced by them.

The SIT made no effort to enquire into this factual allegation and did

not call for explanation of concerned officials of fire brigade.

(ss) There was no adequate police bandobast laid in anticipation

nor stern measures taken when the actual violence took place on

28.2.2002 across the State. This was not a mere case of laxity or

failure of the police administration, but a concerted effort under

instructions from the top, when in fact, their public duty was to

protect the life and property of everyone. The situation was

aggravated because of the State support to the bandh call given by

the agitators. The SIT made no attempt to investigate these

allegations forthcoming from the record before it. There was material

to indicate that the official record had been destroyed under

suspicious circumstances.

(tt) Reliance has been placed on Firozuddin Basheeruddin &

Ors. vs. State of Kerala

, Nirmal Singh Kahlon vs. State of

Punjab & Ors.

, R. Venkatkrishnan vs. Central Bureau of

(2001) 7 SCC 596 (paras 20, 23 and 25)

(2009) 1 SCC 441 (paras 67 and 68)

Investigation

and State (NCT Delhi) vs. Shiv Charan Bansal &

Ors.

(uu) The SIT has not enquired into the false propaganda for inciting

violence and the publication in that behalf, despite the SIT having

received said documents.

(vv) Reliance is placed on State of Karnataka & Anr. vs. Dr.

Praveen Bhai Thogadia

and Amish Devgan vs. Union of India

& Ors.

to contend that incitement to violence is punishable

offence.

(ww) The SIT has not enquired into the evidence regarding hate

speech. Regarding hate materials, the material on record was

glaring. That included false reporting by regional media outlets like

Sandesh on 28.2.2002, claiming 10-15 Hindu women being dragged

away from the Railway compartment (at Godhra) by fanatic mob.

The Gujarat police had denied any such incident having been taken

place. However, no action has been taken against the publisher or

(2009) 11 SCC 737

(2020) 2 SCC 290

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

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

the reporter. The same newspaper had reported on 1.3.2002 on the

front page with prominent heading that dead bodies of the

kidnapped young women from Sabarmati Express have been

recovered with their breasts chopped off and that Gujarat is aflame

because of Muslim fundamentalists. These canards have been

tolerated by the concerned administration unabated, thereby

fuelling the emotions and hatred between the two communities. This

was despite the reporting by the SIB headed by Mr. R.B. Sreekumar

recommending prosecution for provocative lines by the VHP in

publication and anonymous pamphlets. Even the then ACS (Home)

– Mr. Ashok Narayan had admitted in his statement to the SIT that

this matter had been brought to the notice of the State Government,

but no action was ever taken. Similarly, the then Commissioner of

Police, Vadodara – Mr. D.D. Tuteja had recommended action against

Sandesh newspaper in 2002, so also, Mr. Rahul Sharma, an IPS

officer and the then (in 2002) S.P., Bhavnagar sought permission to

through Mr. P.B. Upadhyaya, the then DCP (Intelligence) had sought

sanction for prosecution of Sandesh newspaper, as recommended by

Mr. Rahul Sharma. There is also material to indicate that CCT had

highlighted the pretentious writing and propaganda disseminated by

VHP and also widely reported in “The Express” on 24

March,

allegedly circulated by the Bajrang Dal President – Hastimal, who is

said to have been arrested. The theme of such publication was:

“Don’t purchase anything from Muslim shops, don’t travel in their

vehicles or visit their garages; don’t watch films which feature

Muslim stars. In this way, we can break their financial backbone”.

According to the appellant, the SIT has chosen to turn a complete

blind eye to this official documentary material and other material on

record, despite the fact that publication of such material constitutes

offence in law, warranting investigation and appropriate action. This

coupled with the sting operation, clearly establishes the existence of

a larger conspiracy.

(xx) The Courts have failed to analyse the opinion of the SIT

founded on the undisputed material indicative of prelude and build-

up before 27.2.2002 in the form of hate speeches and mobilisation

all over Gujarat on 27.2.2002, the inaction of

political/police/bureaucrat functionaries despite the serious

episode of Godhra in the morning of 27.2.2002 and also their

inaction after outbreak of violence on 28.2.2002, not taking

preventive measures, deploying the adequate police force, no prompt

arrests, no curfew declared and delay in calling the Army. The

conspiracy was at different levels and at different timelines having

causal connection with the violence across the State on and from

28.2.2002, in particular.

(yy) According to the appellant, hate speeches all across were part

and parcel of incitement to targeted violence and a systemic

conspiracy. The authorities allowed hate speeches unchecked and

unprosecuted to promote hatred amongst the two communities.

Moreover, in furtherance of a pre-hatched conspiracy, large body of

armed and aggressive groups of people took to the street for taking

revenge owing to tragic killings at Godhra. The hate speeches were

in the form of statements of prominent political leaders before and

after 27.2.2002, regional (vernacular) media/press published in

Gujarat and pamphlets with incendiary content by right wing

organisations across the State. No preventive action nor any arrest

or prosecution was deliberately effected, despite such concerted

effort. The Courts have not adverted to this grievance of the

appellant at all. The SIT investigated issue of hate speech as an

independent head concerning the speeches of the former Chief

Minister of Gujarat and has glossed over plethora of hate writings

and speeches of prominent personalities, especially those belonging

to the VHP. The SIT has failed to reckon the issues noted in the

protest petition concerning hate speeches/writings and more

particularly, the failure of the State Government to take prompt

action in that regard.

(zz) It is urged that the SIT has not named any person referred to

in the complaint dated 8.6.2006 and the protest petition except

Babu Bajrangi, who has been prosecuted in Naroda Patia

(Ahmedabad City) carnage case. None of the other persons have

been named in any of the hate speech cases investigated by the SIT.

The SIT could not have accepted the version of the persons

disregarding overwhelming material indicative of their complicity. In

such a case, it would be a triable issue.

(aaa) The appellant in fact relies on SIT record in support of the

prayer for further investigation, at least in respect of the following

matters: -

(i) Failure of administration, touching upon collaboration

and conspiracy.

(ii) The State administration indulged in destroying the

critical record.

(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.

(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.

(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

narrative was manipulated and twisted to show the victim

minority community as aggressor and perpetrator;

(b) ensuring easy bail for those among the perpetrators

who were arrested; and

i.e., those who were pro-active members of organisations

like the Vishwa Hindu Parishad, Bajrang Dal and

Rashtriya Swayamsevak Sangh (RSS).

(bbb) The SIT, for reasons best known to it, followed irregular

procedure of taking initials of the persons whose statements were

being recorded despite a bar under Section 162 of the Code. The SIT

made no attempt to seize the mobile and obtain call records of the

relevant party. Moreover, no public notice was issued by the SIT

after the complaint dated 8.6.2006 was made over to it by this Court

in terms of order dated 27.4.2009

. If such public notice was to be

issued, as was done after taking over investigation of nine cases

pursuant to order dated 26.3.2008

, many of the family members

of the victims or the victims themselves would have come forward

and handed over more material to the SIT concerning the allegation

of larger conspiracy.

supra at footnote Nos. 4 and 17

supra at footnote Nos. 6 and 16

(ccc) The SIT chose to rely on the extracts in the report of the State

appointed Commission (Nanavati-Shah Commission), despite the

clear legal mandate that the same cannot be used as evidence in civil

and criminal action, as expounded in Shri Ram Krishna Dalmia

vs. Shri Justice S.R. Tendolkar & Ors.

and Kehar Singh &

Ors. vs. State (Delhi Administration)

. At the same time, relying

on the decision of the Full Bench of the High Court of Judicature at

Madras in Abdul Sathar vs. The Principal Secretary to

Government

, it is urged that the State Government is expected to

act upon the recommendations made by the NHRC unless for non-

acceptance it provides reasons. The NHRC in its report in the

present case, made certain recommendations. Further, there was

tangible material in the form of report of the Committee on

Empowerment of Women

, report of constitutional authority, such

as the Election Commission of India confirming the allegations made

in the protest petition, which have not been investigated at all.

1959 SCR 279 (para 9)

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

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

Ninth Report of the Committee on Empowerment of Women (2002-2003) concerning violence against women

during riots (July-August 2002)

(ddd) Reliance is placed on Zahira Habibulla H. Sheikh & Anr. vs.

State of Gujarat & Ors.

, Zahira Habibulla Sheikh (5) & Anr.

vs. State of Gujarat & Ors.

and Dayal Singh & Ors. vs. State

of Uttaranchal

(eee) Further, the SIT has not enquired into the evidence in the form

of statement of Mr. Dileep Trivedi, Public Prosecutor regarding

instructions issued for providing Advocate to accused belonging to a

particular community, indicative of the bias in favour of that

community and being party to the conspiracy.

(fff) The Standard Operating Procedure given in the Gujarat Police

Manual, such as Rules 45, 46 and 53 therein, has not been followed

in its letter and spirit.

(ggg) The statement of Mrs. Jayanti S. Ravi, District Magistrate,

Godhra is not consistent with the official record, which was certainly

a matter creating suspicion about the correctness of the statement

so made.

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

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

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

(hhh) The SIT had failed to seize the mobile phone of Mr.

Hasmukh Patel and Mr. Jaideep Patel, which could have unravelled

the truth about their involvement. Mr. Jaideep Patel is the same

person who had made revelation to the Press on the same day i.e.,

27.2.2002.

(iii) The telephonic call records produced by Mr. Rahul Sharma

have also not been investigated. The statement of Rahul Sharma

dated 2.7.2009 to SIT was clinching to establish the plea regarding

call records, which SIT discarded on the specious ground that the

same was produced for the first time in 2008. The Additional

Commissioner of Police, Crime Branch, Ahmedabad – A.K. Surolia,

has also stated in his statement before the SIT that it was he who

had instructed ACP, Crime Branch – S.S. Chudasama to extract the

relevant call details from the relevant cellular service providers –

M/s. AT&T and M/s. Cellforce. This has not been investigated by

the SIT. The call records given to Mr. P.C. Pande, the then

Commissioner of Police, Ahmedabad have also not been analysed.

The call records would show that Mr. Haresh Bhatt was in constant

touch with the doctors from outside the Godhra city, after which post

mortems of the Godhra victims were carried out in open in the

Railway yard. The call records also indicated that Mr. Shivanand

Jha, the then Additional Commissioner of Police, Sector 1,

Ahmedabad City was part of the larger conspiracy, which is clear

from his 68 phone calls made on 27.2.2002 either owned by

politicians or officials (unofficially) and 192 calls on 28.2.2002

including to then Power Minister, State of Gujarat – Mr. Kaushik

Jamnadas Patel (an MLA elected from his area) and another elected

representative – Dr. Maya Kodnani, who has been named as accused

in another case and convicted by the trial Court. The call records

also pertain to Mr. Dinesh Togadia and Dr. Praveen Togadia, officer

bearers of VHP. All these call records have remained uninvestigated.

(jjj) No explanation is forthcoming from the SIT as to why call

record was not procured between 2008 and 2010. This is significant

as the SIT was directed to “look into” the complaint dated 8.6.2006

vide order dated 27.4.2009

and the SIT had submitted its final

report to this Court in September, 2011.

supra at footnote Nos. 4 and 17

(kkk) The SIT had made no effort to enquire into the fact that

following the Godhra incident the massacre followed in Deepda

Darwaza, which case was also assigned to SIT by this Court. Even

that incident was a part of larger conspiracy, which has remained to

be dealt with in the concerned trial in right perspective.

(lll) The SIT could have also taken notice of Private Citizens

Commission headed by former Supreme Court Judges regarding

human rights violation and the contents of the said report indicative

of high officials of the State being party to conspiracy in commission

of crime.

(mmm) It is urged that need to direct further investigation can be

substantiated on the basis of undisputed facts emerging from the

materials/statements collated by the SIT.

(nnn) In cases of allegation regarding larger conspiracy, there

could be no direct evidence. That is a matter to be investigated and

inferred on the basis of the material pointing out towards such

circumstances. Reliance is placed on Nazir Khan & Ors. vs. State

of Delhi

. There is no investigation whatsoever regarding existence

of conspiracy despite the same being revealed from Tehelka Tape

itself. Reliance is also placed on Firozuddin Basheeruddin

and

Nirmal Singh Kahlon

to contend that even the second FIR is

permissible if the evidence regarding conspiracy surfaces after

registration of the first FIR. Further, acceptance of final report

submitted by the investigating officer is no impediment for enquiring

into fresh material brought to the notice of the investigating officer

or the Court, if warrants taking cognizance.

(ooo) The SIT has not offered any remark regarding the statement of

Mr. Bharat Bhatt, Special Public Prosecutor and Mr. Deepak Shah,

who were questioned by the SIT for reasons best known to it.

(ppp) It is urged that appellant – Zakia Ahsan Jafri had appeared as

prosecution witness (PW-337) in Gulberg Society case being CR No.

67/2002 and not as a complainant. Whereas, in the present action,

appellant – Zakia Ahsan Jafri was prosecuting the matter as

complainant.

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

supra at footnote No. 43

supra at Footnote No. 44

(qqq) The appellant has also explained as to how the error has been

committed in mentioning the name of Mr. Rahul Sharma and Satish

Verma as offender Nos. 45 and 63 respectively, though they were

cited as witnesses in support of the allegations made in the

complaint and protest petition. That was also explained to the SIT

at the earliest opportunity.

(rrr) It is urged that undue reference was made about the adverse

observations recorded against Ms. Teesta Setalvad by the Court.

That was wholly inappropriate. For, the stated adverse remarks

came to be expunged by this Court in Testa Setalvad & Anr. vs.

State of Gujarat & Ors.

. Reliance was placed on some

proceedings for similar purpose against Mr. R.B. Sreekumar. Those

proceedings are still pending and will be of no avail to SIT. One of

the reasons weighed with the SIT to discard the statement of Mr.

R.B. Sreekumar was, therefore, untenable on the face of it because

the correspondence pertains to period much before Mr. R.B.

Sreekumar had raised issues regarding violation of his service

conditions with the department.

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

(sss) The SIT had filed material alongwith final report consisting of

(i) documentary evidence (officially received), (ii) documentary

evidence otherwise collected by the SIT, (iii) video-audio recordings

of a sting operation authenticated at the instance of the NHRC by

the CBI and relied upon by the SIT in various prosecutions, (iv) extra

judicial confessions evidenced by the sting operation and (v) witness

statements in respect of individuals in relation to the events that

took place prior to February 27, 2002 until order of this Court dated

12.9.2011

. The Magistrate was obliged to examine the voluminous

documentary and other evidence to ascertain whether some matters

raise strong suspicion of offences having been committed, being

sufficient reason to issue direction to the SIT to further investigate

the same, even if it was not a case of taking cognizance straightaway.

Reliance is placed on Afroz Mohammed Hasanfatta

and S.K.

Sinha

(ttt) The appellant was relying on undisputed documents available

in the SIT record, which alone were sufficient to issue summons for

supra at footnote No. 26

supra at footnote No. 31

supra at footnote No. 39

alleged offences, as it clearly indicated the complicity of the persons

named in the complaint/protest petition and in any case, raised

strong suspicion 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 the SIT.

(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 brought to book and prosecuted in accordance with law. He

would submit that: -

“The Republic is like a shop… that ship has to be made steady.

It is your task to keep the Republic steady. It would be steady

only if majesty of law prevails. This is a case where the

majesty of law has been deeply injured… Despite actionable

evidence the court has chosen not to look at it and misread

the order of SC. In this case violence has been perpetrated

through design which is reflected in the documents… I leave

it then to your lordship to decide.”

(vvv) It is submitted that it would be a different matter if the Court

feels that the material on record did not raise any suspicion.

(www) In the backdrop of the stand taken before us in respect of

allegation 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 senior counsel for the appellant to submit written statement

in that regard, which he submitted after the case was adjourned for

pronouncement of verdict, in the following words: -

“STATEMENT OF THE PETITIONER QUA LARGER

CONSPIRACY

The Petitioner has made her submissions based on

undisputed evidence in the form of Tehelka tapes and

official communications of public functionaries. The

Petitioner has not sought to allege any wrongdoing,

criminal or otherwise, with reference to facts that are

disputed. The Petitioner contends that a larger conspiracy

involving individuals whose undisputed extra-judicial

confessions are on tape, read along with inactions of

officials demonstrated by undisputed documents, should

have been investigated by the SIT, which could have

established a larger conspiracy. The submission is that the

SIT did not investigate the larger conspiracy, but limited

itself to matters in dispute relating to a meeting of

February 27, 2002. Qua that meeting, the SIT has come to

a certain conclusion which is part of the closure report.

Since the Petitioner has not made any submissions on

disputed facts, the Petitioner did not contend before

this Hon’ble Court that a larger conspiracy emanated

from the meeting of February 27, 2002. In fact, during

the course of submissions, no reference was made by the

Petitioner to this meeting at all. The undisputed evidence

on record points to a larger conspiracy which appears

to have involved bureaucrats, politicians, public

prosecutors, VHP, RSS, Bajrang Dal and members of

the State political establishment. It is this conspiracy

that is not investigated by the SIT. The extent of the

conspiracy, the identity and number of individuals

involved, the preparatory acts committed and the time,

place and manner in which the meeting of minds for

purposes of such conspiracy took place can only fully

emerge on investigation and is not something that the

Petitioner can 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

“look into” the written complaint of appellant, it immediately moved

into action and did everything that it could do to investigate every

singular allegation noted in the complaint. The SIT could cull out

thirty broad allegations in the complaint made over to it for

investigation. In addition to those thirty allegations, the SIT also

investigated into two additional allegations including the

comments/observations of the Amicus Curiae in reference to the

final report presented to this Court, and recorded its opinion in that

regard in the final report submitted to the Magistrate. The SIT left

no stone unturned and thoroughly investigated all aspects of the

matter

, as also, exhaustively analysed every piece of

information/material collected by it during the investigation by

supra at footnote Nos. 4 and 17

including by recording statements of 66 witnesses during preliminary enquiry between 19 June, 2009 – 18

December, 2009, 120 witnesses during preliminary enquiry between 12 January, 2010 – 23 December, 2010, 76

witnesses during further investigation between 14

August, 2010 – 10

November, 2010 and 145 witnesses during

further investigation 23

November, 2010 till 13

January, 2012

recording statements of 375 persons and questioning 275 persons

in terms of the direction given by this Court.

(b) The final report besides dealing with each of these 32 (thirty-

two) allegations exhaustively, has also separately dealt with the case

against each of the 63 persons named as offenders in the complaint

dated 8.6.2006. As aforesaid, the final report submitted to the

Magistrate also reproduces the observations of the Amicus Curiae

and deals with every aspect thereof to form its opinion that no

offence is made out, much less having been committed by the

offenders named in the complaint. It is urged that the investigating

agency is entitled to form its opinion dependent on the legally

admissible evidence/material collated during investigation.

Further, the SIT had to investigate within the remit given to it by this

Court. In that, vide order dated 27.4.2009

, this Court directed the

SIT appointed by it to only “look into” the complaint dated 8.6.2006

of appellant – Zakia Ahsan Jafri. No direction was given to the SIT

to register it as FIR. Notably, this Court consciously adopted such

a course - despite the main prayer of appellant – Zakia Ahsan Jafri

supra at footnote Nos. 4 and 17

to register her complaint as FIR and to get the same investigated

through an independent agency. Not only that, upon submission of

the final report by the SIT, the appeal filed by the appellant [SLP(Crl.)

No. 1088/2008] was disposed of and the SIT was directed to submit

appropriate report before the Magistrate taking cognizance in the

Gulberg Society case being CR No. 67/2002. This is despite the fact

that the trial of the said case had progressed before the Sessions

Court after filing of the last supplementary 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 a sui generis procedure which was not in strict

consonance with the procedure predicated under the Code.

Resultantly, the SIT was bound to strictly follow the directions of this

Court in every aspect without exception. And that, the SIT had fairly

discharged its role to the satisfaction of this Court, as noticed from

the orders dated 1.5.2009

, 12.9.2011

and as recently as,

13.4.2017.

supra at footnote No. 18

supra at footnote No. 26

was not for assigning investigation of complaint dated 8.6.2006 to

the SIT (appointed by this Court in connection with nine major cases

which included Gulberg Society case being CR No. 67/2002), but to

an independent investigation agency. That prayer, obviously, stood

rejected by the High Court and even by this Court consequent to

direction issued on 27.4.2009

in the special leave petition filed by

the appellant, directing the SIT to only have a look at the complaint.

(d) It is urged that this Court even vide order dated 12.9.2011

did not direct registration of the complaint dated 8.6.2006 as FIR. It

only called upon the SIT to take necessary follow-up steps. The

complaint dated 8.6.2006, in one sense, was regarded by the SIT as

further information in relation to the Gulberg Society case being CR

No. 67/2002, investigation and trial whereof was allowed to proceed

by this Court at the same time. The last supplementary chargesheet

in that case came to be filed as back as on 12.8.2009.

supra at footnote Nos. 4 and 17

supra at footnote No. 26

100

(e) The remit of the SIT, in terms of the directions issued by this

Court from time to time was only to examine whether the material

referred to in the complaint discloses commission of any offence of

larger conspiracy at the highest level and involvement of any person

other than the accused persons named in CR No. 67/2002

concerning Gulberg Society. That being the remit of the SIT, it could

not have investigated into any other aspect without an express

direction of this Court. This is also for the reason that the allegation

of conspiracy at the local level had already been investigated into in

all other cases registered at the relevant time, around 2000 in

number, including the nine major cases assigned to the Supreme

Court appointed SIT. The allegations which are made in the

complaint are based essentially on the record/affidavits of the

officials of the State, filed before the Nanavati-Shah Commission.

(f) Additionally, the direction given by this Court on 12.9.2011

in the special leave petition filed by the appellant, would not only

bind the SIT and the Magistrate dealing with the final report, but

also the appellant herein. No liberty was sought or had been given

supra at footnote No. 26

101

by this Court to the appellant to make fresh allegations beyond the

allegations noted in the complaint dated 8.6.2006 and already

investigated by the SIT in terms of order dated 12.8.2009. As a

matter of fact, appellant – Zakia Ahsan Jafri being the complainant

could have availed of the remedy under Section 190 of the Code by

presenting a complaint before the competent Magistrate, as observed

by the High Court vide order dated 2.11.2007. She did not avail of

that remedy. Instead, the appellant approached this Court by way

of SLP(Crl.) No. 1088/2008 and submitted to and acquiesced of the

directions issued by this Court from time to time.

(g) Significantly, in proceedings before this Court, Ms. Teesta

Setalvad had assisted the Amicus Curiae appointed by this Court

and presumably also for articulating the observations in the note

submitted by him to this Court and to which the SIT had duly

responded and dealt with in the final report presented before the

Metropolitan Magistrate, in terms of this Court’s order dated

12.9.2011

. Even the Magistrate was bound by the remit applicable

to the SIT in view of the sui generis procedure adopted by this Court

supra at footnote No. 26

102

in treating the report of the SIT as further report under Section

173(8) of the Code (in the Gulberg Society case being CR No.

67/2002) to be presented before the Magistrate alongwith the

statements recorded by the SIT, treating them as statements under

Section 161 of the code in terms of order dated 7.2.2013.

(h) It is urged that the appellant has repeatedly changed the

goalpost with a view to create confusion. Amongst others, the

manner in which 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 that the same (complaint dated 8.6.2006) ought

to be treated as a private complaint and proceeded with by the

Magistrate under Section 190 of the Code.

(i) It is urged that the argument of the appellant to treat the

protest petition as a private complaint, is one of desperation and in

any case, untenable in light of the express direction given by this

Court to the SIT to submit its report to the Magistrate taking

cognizance of CR No. 67/2002 being the Gulberg Society case - as

further report under Section 173(8) of the Code. If the report was to

disclose commission of such offence of larger conspiracy or

103

abetment, as the case may be, the Court could have proceeded

against the concerned persons and tried in sessions trial arising

from CR No. 67/2002 by framing requisite charge(s) in that regard.

Therefore, the complaint could neither be registered as FIR nor could

be treated as a private complaint in the wake of sui generis direction

given by this Court vide order dated 12.9.2011

in the special leave

petition preferred by the appellant. Reliance has been placed on

Vishnu Kumar Tiwari

(j) It is urged that when the SIT called upon appellant – Zakia

Ahsan Jafri to give her statement in connection with the complaint,

she declined to do so and it has been so recorded in the opening part

of the final report as well. She wanted the SIT to treat her complaint

as FIR and register the same. Accepting this request would have

been contrary to the spirit of the direction given by this Court (vide

order dated 27.4.2009

) to SIT, to only look into the complaint and

to take further steps in that regard. Until the special leave petition

filed by appellant – Zakia Ahsan Jafri was disposed by this Court on

supra at footnote No. 26

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

supra at footnote Nos. 4 and 17

104

12.9.2011

, no request was made to this Court to clarify the

position or for issuing directions to register her complaint as

FIR/complaint.

(k) Although in the rejoinder argument, the learned counsel for the

appellant had stated that he had never argued for treating the

complaint/protest petition of appellant – Zakia Ahsan Jafri as

complaint under Section 190 of the Code, it is noticed that a clear

stand has been taken in paragraph 5 of the written note being

Convenience Compilation (Volume I) filed by the appellant in this

regard. Further, in the protest petition, fresh allegations have been

made, which in any case cannot be linked to the allegation of larger

conspiracy required to be investigated by the SIT in terms of

successive orders passed by this Court. The attempt of the

complainant was obviously to make wild and preposterous

allegations and keep the pot boiling in the name of taking action

against new offenders referred to in the protest petition while not

pursuing allegation Nos. (i) and (iv) which had been thoroughly

investigated by the SIT and found to be devoid of substance. A

supra at footnote No. 26

105

deceptive stand is taken that the appellant would like to pursue the

matter only on the basis of undisputed material/documents - having

realised that the basis on which allegation Nos. (i) and (iv) came to

be made, was a figment of imagination of the persons attributing

certain utterances to the then Chief Minister to make it sensational

news. Significantly, SIT was entrusted with investigation of other

crimes, which it completed to the satisfaction of this Court. In those

cases, not even a tittle of remark has been made by the trial Court

to trace it to the allegation of larger conspiracy. However, the

appellant has highlighted unconnected matters (Deepda Darwaza

case and Sardarpura case), in the guise of protest petition filed in

Gulberg Society case.

(l) Whereas, it had been understood by all concerned that the SIT

was expected to investigate into the allegation regarding “larger

conspiracy” to cause and precipitate mass violence across the State

and not the criminal conspiracy at the local level resulting in violence

at Gulberg Society, in respect of which CR No. 67/2002 had already

been registered. In that, as regards the conspiracy to commit offence

mentioned in CR No. 67/2002, that had already been investigated

106

and chargesheet filed, including supplementary chargesheets from

time to time. It is not in dispute that even the trial Court, which

dealt with the said crime, had formulated the very first point for its

determination on the basis of charges framed against the accused

named in the said trial being CR No. 67/2002 - regarding pre-

planned conspiracy to form an unlawful assembly and thereafter

perpetrate the carnage at Gulberg Society on 28.2.2002, which

resulted in death of 69 persons and attempts to murder, causing

grave and serious injuries to residents of Gulberg Society and also

causing damage and destruction of vehicles and property thereat.

(m) Similarly, the allegation regarding events of mass violence

spread across the State being State-sponsored crime had been made

even in Bilkis Bano case and Best Bakery case and other cases

including eight other cases investigated by the SIT. Those

allegations have been dealt with in the concerned cases. In other

words, the complaint dated 8.6.2006 submitted by appellant – Zakia

Ahsan Jafri was to be looked into by the SIT in respect of allegation

regarding larger conspiracy at the highest level alone and not the

conspiracy at the local (lower) level.

107

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

(i) Tehelka tapes which surfaced in 2007;

(ii) The CDRs;

(iii) The SIB messages;

(iv) The call for Gujarat Bandh;

(v) The “hate material”;

(vi) The handing over of dead bodies;

(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;

(xi) Delay in curfew;

(xii) Delay in requisition of Army; and

(xiii) Partisan/prosecutors.

However, each of these issues were considered at great length by this

Court between 2008 and 2011 whilst monitoring the investigation

done by the SIT and culminating in final report. The findings of the

SIT had also to pass through the strict scrutiny of the Amicus Curiae

assisting this Court, who was authorised to even interact with the

witnesses examined/questioned by the SIT. It would be, therefore,

travesty of justice and doubting the wisdom of this Court which had

108

supervised/monitored the investigation completed by the SIT on all

aspects and being satisfied permitted the SIT to present the final

report before the Magistrate. The entirety of the material was

presented before this Court by the SIT from time to time. The final

report in question presented before the Magistrate, therefore,

forecloses the enquiry concerning the allegations in complaint dated

8.6.2006.

(o) According to the SIT, considering its remit, the Magistrate was

also required to examine the final report on that basis and to satisfy

about the plausibility of the conclusions drawn by the SIT on the

materials collected by it. The Magistrate entered upon such exercise

and applied his mind to the totality of the circumstances including

by taking note of the issues raised in the protest petition and

accepted the final report being convinced that no case was made out

for issuance of process against the named offenders or any other

person.

(p) As regards larger conspiracy, the allegation is mainly founded

on the affidavits/materials filed by the officials and others before the

Nanavati-Shah Commission appointed by the State of Gujarat under

109

the 1952 Act. The Commission, however, has dealt with every aspect

of the affidavit(s) filed by the concerned officials before it including

the material which also forms part of the complaint submitted by

appellant – Zakia Ahsan Jafri. The opinion of the Commission in

that regard is no different than the conclusions reached by the SIT.

Notably, the Commission submitted its report after the SIT had

already filed its final report before the Magistrate.

(q) Indeed, the opinion of the SIT must conform to the material

dealt with by it in its report. In the present case, the final report of

the SIT is exhaustive and deals with every singular aspect necessary

to answer the allegations made in the complaint - which is on the

basis of analysis by the SIT by reckoning the material collected

during the investigation. The analysis of the entire material by the

SIT is not only allegation-wise, but named offender-wise including

witness-wise and objection/noting (wise) of the Amicus Curiae in

response to the previous further report of the SIT submitted before

this Court.

(r) The SIT has thoroughly analysed the allegations against each

offender in the subject final report on the basis of material collected

110

by it, as can be discerned from pages 363-364, 367, 370-385, 388-

392 and 395-397. Only after such thorough analysis, the SIT had

opined that no offence has been made out nor the stated offender

can be said to be involved in the commission of offence of larger

conspiracy.

(s) The complaint highlights the pattern of continual concerted

lackadaisical approach of high officials of the State Government, who

were allegedly acting under dictation from the highest authority of

the elected political dispensation. The theory of larger conspiracy is

put forth mainly on the basis of alleged utterances of the then Chief

Minister in the meeting held soon after the ghastly incident of train

burning in Godhra on 27.2.2002 and the subsequent official meeting

on 28.2.2002 including before the Press. The case made out in the

complaint dated 8.6.2006 is that the high officials followed the

directions given by the then Chief Minister and issued instructions

to their subordinates to justify pre-orchestrated mass carnage that

enjoyed the political sanction of the constitutionally elected

Government in Gujarat. Hence, it was nothing short of State

sponsored violence against a particular community.

111

(t) The remit of the SIT was, therefore, to investigate the

allegations in the complaint, which it had done meticulously, as can

be discerned from the final report submitted by it running into about

231 closely typed pages (in the paper book of this Court, mentioned

as pages 1 to 270 on the cover page of the report filed), analysing

every piece of material/evidence collated by it allegation-wise,

offender-wise, as well as the observations of the Amicus Curiae on

the final report presented by the SIT before this Court. The final

report is the compendium of the previous reports submitted before

this Court and the clarification of the SIT in respect of observations

of Amicus Curiae, point-wise. The permission given by this Court in

terms of order dated 12.9.2011

is a seal of approval of this Court

about its satisfaction regarding the completion of fair investigation

done by the SIT in respect of allegations contained in complaint

dated 8.6.2006. If there was even a little doubt, this Court, as in the

past, would have certainly directed the SIT to do further

investigation in respect of left out matters. As noted earlier, Ms.

Teesta Setalvad had interacted with the Amicus Curiae before he had

supra at footnote No. 26

112

submitted his observations by way of a note to this Court and made

over to the SIT. As all concerned had acted upon and accepted the

sui generis procedure followed by this Court in dealing with the

complaint dated 8.6.2006 including regarding its investigation and

directing presentation of an appropriate report before the Magistrate

taking cognizance of CR No. 67/2002 concerning the Gulberg

Society in terms of order dated 12.9.2011

, neither the SIT nor the

Magistrate could travel beyond the said remit. For the same reason,

it would not be open to the complainant/informant/appellant to

make fresh allegations, much less not connected with the larger

conspiracy at the highest level, already investigated by the SIT under

the supervision of this Court.

(u) In any case, the emphasis placed by the appellant on matters

referred to in the protest petition are in respect of unconnected

events and not having direct or causal bearing on the allegation of

larger conspiracy, particularly involving the political dispensation,

as well as, the high officials, bureaucrats and police functionaries

allegedly acting under the dictation of the then Chief Minister.

supra at footnote No. 26

113

Notably, no submission has been advanced on the meeting held on

27.2.2002 under the chairmanship of the then Chief Minister or

about the testimony of Mr. Sanjiv Bhatt, IPS, the then

Superintendent of Police (Security), who falsely claims to have

attended the official meeting.

(v) As regards allegations regarding Ministers found sitting in the

Police Control Room and giving instructions to the officials, the SIT

has thoroughly examined the said allegation and after due enquiry,

was of the opinion that the Ministers even though visited the Control

Room, were to ascertain the developments and not for giving

instructions, as is the routine practice. No material has come on

record to indicate that the Ministers had given specific direction one

way or the other to the subordinate officials, which may be regarded

as a case of larger conspiracy. Absent such evidence, mere fact that

the Ministers had visited the Police Control Room would not take the

matter any further, much less to charge the offenders named in the

complaint with any offence.

(w) As regards the allegation that the State did not stop the State

wide Bandh call, it does not follow that the officials and elected

114

Government had entered into larger conspiracy culminating with the

events unfolded on 27.2.2002 onwards. In the first place, the

materials collated during investigation does not corroborate this

fact. In any case, the inaction or for that matter, tacit support of the

elected Government of the State to the State wide Bandh, by itself

absent any other incriminating circumstance/material, cannot be

the basis to initiate prosecution against the high officials of the State

on the charge of criminal conspiracy 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

material collected during investigation revealed that the then Chief

Minister, on the basis of inputs and sensing serious problem across

the State, had telephonically interacted with the then Home Minister

of the Government of India at 1.00 p.m. for deployment of Army and

a formal written request was sent on fax to the Union Ministry at

2.30 p.m. on 28.2.2002. The arrival of army took some time due to

unavoidable situation and after providing logistical assistance, the

Army was deployed immediately on the following day. These

115

measures taken by the State Government, in fact, are indicative of

prompt steps taken to avoid any further untoward situation and

destroys the theory of larger conspiracy by the State at the highest

level or State supported violence.

(y) It was urged by the respondents that material on record taken

into account by the SIT has been noted even by the Nanavati-Shah

Commission and the trial Court in Gulberg Society case being CR

No. 67/2002, indicative of the measures taken by the State in

anticipation of the riots, but the civil administration was overrun

across the State. Further, apprehending the fallout aftermath the

Godhra train burning episode and the general unrest all around,

Army was requisitioned on 28.2.2002 itself even before the violence

had actually taken serious proportion across the State. The Army

arrived on the same midnight, as they were posted at the borders

due to security reasons aftermath the attack on the Parliament on

13.12.2001 (which had happened only two months earlier). After

arrival and providing logistical support at the local level, the Army

was deployed in sensitive areas across the State. The

contemporaneous record would, therefore, indicate that the theory

116

of larger conspiracy propounded in the complaint is falsified being

imaginative.

(z) As regards the partisan investigation in the concerned criminal

cases, the same was also of no avail, as there was no evidence

forthcoming to connect it with the allegation of larger conspiracy.

(aa) The SIT had examined everyone involved including the then

Chief Minister until the last Minister and found that there was no

material to connect them with the allegation of larger conspiracy.

(bb) It is submitted that allegation concerning the conduct of

grassroot level officers had nothing to do with the allegations

regarding larger conspiracy at the highest level.

(cc) Even allegations based on the affidavit of Mr. R.B. Sreekumar

had 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 Department to the central Election Commission for

conduct of early elections, also has no connection with the theory of

larger conspiracy being the cause of eruption of violence across the

117

State. It is pointed out that appellant – Zakia Ahsan Jafri, in her

evidence recorded on 22.10.2010, accepted that Mr. R.B. Sreekumar

was at the relevant time, working with an NGO and Ms. Teesta

Setalvad was associated with that organisation. Interestingly, she

was none else, but the convener of the Private Citizens Commission

headed by former Supreme Court Judges and was in a position to

influence appellant – Zakia Ahsan Jafri. It is submitted that Ms.

Teesta Setalvad, for reasons best known to her and out of vengeance,

was interested in continuing with her tirade and persecution on the

basis of unsubstantiated allegations in the complaint in the name of

quest for justice with real purpose to keep the pot boiling and

sensationalise and politicize the crime. The version of Mr. R.B.

Sreekumar in the later affidavits commenting about the functioning

of the administration, must be viewed in the context of his denial of

career opportunities.

(dd) Indisputably, Mr. R.B. Sreekumar, former IPS officer was

posted as Additional Director General of Police, Armed Unit, Gujarat,

at the time of riots, who had filed nine affidavits before the Nanavati-

Shah Commission. He did not derive any of its contents from

118

personal knowledge/information, which he might have received as

occupant of the stated office. Further, he did not make any

allegation against the State 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 been superseded by his junior – Mr. K.R.

Kaushik. Later, he got involved as an accused in the FIR filed by

CBI in ISRO spying case, which had been registered under directions

of this Court in S. Nambi Narayanan vs. Siby Mathews & Ors.

and again between the same parties

(ee) Appellant – Zakia Ahsan Jafri in her cross-examination in

Gulberg Society case being CR No. 67/2002 as PW-337 had

conceded that she knew Ms. Teesta Setalvad for some time and also

about having met Mr. R.B. Sreekumar after the incident. She has

stated that Mr. R.B. Sreekumar had come to Gulberg Society on

28.2.2002 and upon completion of four years she had met him. She

had also stated that Mr. R.B. Sreekumar was presently working with

Ms. Teesta Setalvad. She had also admitted in her cross-

(2018) 10 SCC 804

2021 SCC Online SC 760

119

examination that she had given statement on 22.8.2003 before the

Nanavati-Shah Commission and after giving that statement, she had

no occasion to read copy of that statement. This was suggestive of

the fact that she was tutored by Ms. Teesta Setalvad, but she never

disclosed about that, which fact she had to admit in the cross-

examination. She had also admitted in her cross-examination that

Mr. R.B. Sreekumar was disappointed with the Government. At the

same time, she was unable to recall about the enquiry made by the

SIT in connection with the affidavit filed by her before the

Commission. And that, she had throughout followed the

instructions of Ms. Teesta Setalvad. In the final supplementary

report filed by the SIT in Gulberg Society case being CR No. 67/2002,

it has been clearly noted that nineteen witnesses insisted to take on

record their prepared signed statement(s), which according to them,

were prepared by Ms. Teesta Setalvad and Advocate – Mr. M.M.

Tirmizi and did not show willingness to give their own statement.

The statements so presented were stereotyped copies/computerised

prepared statements given to them by Ms. Teesta Setalvad and

Advocate – Mr. M.M. Tirmizi and they had merely signed such

prepared statements.

120

(ff) The final report extensively discusses the allegations culled out

from separate affidavits filed by Mr. R.B. Sreekumar before the

Nanavati-Shah Commission after recording the statements of

concerned persons and collecting relevant documents - as can be

discerned from pages 264-266, 271-283, 285-287, 297-298, 302-

312, 326 and 329.

(gg) The other allegations founded on the version of Mr. Rahul

Sharma were also enquired into and the SIT examined the relevant

call records to conclude that the same were baseless. The

allegations were broadly regarding laxity and failure in maintaining

law and order during the relevant time.

(hh) The SIT recorded statements of all the relevant persons who

were stung in the Tehelka Sting Operation. The call details of Babu

Bajrangi, who was one amongst them, clearly establishes that he

was in Ahmedabad from morning 11:15 hrs. on 27.2.2002 and,

therefore, he could not have been in Godhra at the time of Godhra

train incident. Similarly, the call details of Haresh Bhatt were

analysed, which revealed that he was present in Ahmedabad till 9:30

hrs. on 27.2.2002. His location was again shown in Ahmedabad

121

directly at 18:40:21 hrs., which supports his claim that he had gone

to his village during the interregnum period, when connectivity was

not there. Again on 28.2.2002, his location remained at tower of

mobile service provider in Paldi in Ahmedabad till 12:00:04 hrs. on

that day. This supported his claim that he had visited his village for

a week. In any case, Haresh Bhatt had not been named in the FIR

by appellant – Zakia Ahsan Jafri.

(ii) As regards the argument founded on Tehelka Sting Operation

about build-up of arms and ammunition in Gujarat even before

Godhra train incident, the contents of the transcript are not

corroborated from the material available with the SIT. The trial

Court in Sessions Case No. 152/2002 arising from Meghaninagar PS

FIR No. 67/2002 (Gulberg Society case) regarding use of firearms in

the incident, had observed in paragraph 722 that there is no

evidence or recovery of the bullet fired from private weapon by any

member of the mob. The only case is that the material recovered

from the scene of offence were empty cartridge shells and bullet

casings, ballistically established to have been fired from the licensed

122

weapon to be of the ownership of late Mr. Ehsan Jafri. In other

words, there is no corroborative material forthcoming regarding

commission of any offence by the offenders named in the complaint,

much less of larger conspiracy.

(jj) The Tehelka Sting Operation in a way relates to the allegation

regarding criminal conspiracy at the local level. The contents thereof

have nothing to do with the allegation of larger conspiracy enquired

into by the SIT as directed by this Court. The local level conspiracy

had been investigated in the respective cases including the nine

cases investigated by the SIT under supervision of this Court. In the

concerned cases, all persons involved including the persons

recorded in the sting operation have been proceeded against in the

concerned case. As had been pointed out, SIT nevertheless recorded

statements of 13 persons out of 18 involved in the operation ‘Kalank’

by Tehelka. The statements of those persons in law could be used

against the maker of the statement as extra judicial confession, but

not against others and more so without corroborative piece of

evidence. The SIT had not only recorded the statement of Babu

Bajrangi, but also Prakash S. Rathod (a worker at a Petrol pump)

123

and Haresh Bhatt. Their presence at the place referred to by them

stood falsified by the call detail records. Their version has been

analysed by the SIT and found to be unuseful in the context of the

allegation of larger conspiracy being enquired by it under directions

of this Court. Until the disposal of the matter by this Court on

12.9.2011

, the issues now raised were never pointed out even by

the Amicus Curiae.

(kk) The learned counsel would also urge that incorrect statement

was made on behalf of the appellant that the SIT had not recorded

statement of any victim. This submission is falsified from the record

of the SIT, which includes the statements of concerned victims

(minority community), list whereof has been mentioned in paragraph

35 of the Final Note Part-III with heading “Clarification as to

Conspiracy in the Gulberg Case”.

(ll) Similarly, incorrect allegation was made against the SIT about

the records produced by Mr. P.C. Pande. Those records were

produced by Mr. Pande on his own and not as per directions given

by this Court. Further, the record was a scanned copy of the PCR

supra at footnote No. 26

124

messages done by him and in his custody. Whereas, the original

records which were allegedly scanned by him, were destroyed in the

year in 2008 itself as per rules in Gujarat 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 to

record further statements or re-examine the witnesses. It is urged

that those persons who came to give their statements to SIT, their

statements were recorded by the SIT without exception. If any

witness wanted to give further statement, could have done so on his

own if he desired to share further information. But no such request

was received by the SIT. If the SIT wanted to re-examine any

witness, it could have done so unhesitatingly. In substance, the

allegation about the inaction of the SIT or partisan attitude during

the investigation is, to say the least, preposterous.

(nn) It is urged that the SIB messages being exchanged between the

concerned officials itself is indicative of the fact that the State

Government and the police were proactive in dealing with the crisis

that was evolving post-Godhra episode. Additionally, on 28.2.2002

125

itself, the State called for Army assistance by sending a formal

request in that behalf and on arrival of Army after giving logistical

assistance, it was deployed all across the sensitive areas in the State.

This also is indicative of the fact that proactive measures were being

taken by the State, but that was overrun by the expanse of

spontaneous mass violence. The SIT had noted that the SIB being

responsible to collect intelligence regarding law-and-order situation

in the State, was at the relevant time headed by Mr. G.C. Raiger, the

then Additional Director General of Police-Intelligence. The

authorities who were supervising the functions of this department

have been named as being part of pre-planned larger conspiracy.

However, on analysing the messages, it is noticed that the

intelligence agencies of the State were collecting the relevant

intelligence and disseminating the same to the concerned

authorities. Thus understood, the allegation of pre-planned larger

conspiracy and involvement of named high officials remained

unsubstantiated and not even warranting any suspicion about their

involvement.

126

(oo) It is urged that left to the appellant, she had gone to the extent

of suggesting that the two train bogies were put on fire as a part of

pre-planned conspiracy hatched by the highest authority. This is

only figment of imagination, preposterous and in disregard of the

hard facts discernible from the material collected by the SIT

including in the investigation concerning Godhra incident clearly

spelling out the manner in which that incident had occurred. The

trial of that case has established the involvement of accused who

had been convicted for being responsible for the said incident and

appeal therefrom is pending in this Court.

(pp) It is urged that assuming that it is a case of intelligence failure

and in a given situation, inaction of the concerned authority

responsible to take corrective measures, such failure cannot take

the colour of being involved in criminal conspiracy as such. For

being involved in the crime of criminal conspiracy, there ought to be

positive material indicative of deliberate act of commission and

omission and meeting of minds of the concerned persons, which was

completely absent and not forthcoming during the investigation

conducted by the SIT to enquire into the allegations of larger

127

criminal conspiracy. The SIT had investigated into the role of every

person named as offender in the complaint under consideration and

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

then Additional DG (Intelligenc), as also of Mr. Ashok Narayan, ACS

(Home), which have been taken into account for forming opinion, as

noted in the final report. Despite the efforts put in by the officials,

there are situations which are unpredictable being sporadic,

sudden, spontaneous and dynamic in nature. Even with best of

anticipation and arrangements in place, it would get overwhelmed

by the proportion of violence all across the State. In such

eventuality, it would be a case of collapse of State administration,

but cannot pass the muster of concerned officials being part of larger

conspiracy. The officials are expected to respond to the evolving

situation while adhering to the norms, but may end up in a situation

which can go beyond their control at various places across the State

owing to mass violence.

128

(rr) The SIT had also closely examined the allegation of conspiracy

in making kerosene bombs and came to the conclusion that there

was no evidence worthy of proceeding against the named offenders,

much less on the allegation of larger conspiracy for want of evidence

regarding meeting of minds in particular.

(ss) In reference to the argument that the trials against the named

accused were being compromised by the public prosecutor (Mr.

Arvind Pandya), has also been rebutted by the SIT on the argument

that the public prosecutor to whom reference has been made by the

appellant, was not appointed by the State in any single criminal case

investigated by the SIT, but had appeared before the Nanavati-Shah

Commission. Further, he had resigned in 2008 before the SIT took

over the investigation of the complaint dated 8.6.2006. He could not

have, in any way, influenced the trial in any of the specified cases.

Out of nine cases, trial in eight cases had been completed under the

gaze of SIT and in none of the cases, any adverse opinion has been

recorded by the concerned Court in that regard. Thus, the plea in

support of the allegation of larger conspiracy is tenuous.

129

(tt) As regards allegation No. (xv), it is submitted that public

prosecutor appointed by the State Government before the Nanavati-

Shah Commission had not been named in the complaint, but now

during the arguments, his role in compromising the trials was being

highlighted. This cannot be countenanced.

(uu) Significantly, the contents of the complaint dated 8.6.2006,

besides relying on the materials/affidavits filed before the Nanavati-

Shah Commission, also note that there are some matters which

could not have been considered by Nanavati-Shah Commission and

reference is made to such matters. Even that aspect has been duly

investigated and the opinion formed by the SIT was that the same

are unconnected with the allegations of larger conspiracy.

(vv) Noticeably, the final report dated 8.2.2012 was presented by

the SIT before the Metropolitan Magistrate pursuant to the direction

given by this Court on 12.9.2011

even before the Nanavati-Shah

Commission had submitted its report, which was tabled in the

Assembly on 18.2.2012. Furthermore, the allegation regarding

larger conspiracy of State-sponsored violence noted in the

supra at footnote No. 26

130

complaint, was required to be investigated only in the last case

investigated by the SIT i.e., Gulberg Society case being CR No.

67/2002. Not even a remote reference was made to such allegation

in the other eight cases investigated by the SIT. Similarly, no

allegation about unfair investigation done has been made against

the SIT in any of those cases including before this Court, except in

the present case.

(ww) It is urged that since the appellant has now chosen not to

pursue allegation Nos. (i) and (iv), the entire basis of the complaint

dated 8.6.2006 has become irrelevant and redundant. For, stated

allegations were essentially about the larger conspiracy involving

highest political authority/bureaucracy and actions or inactions of

the high officials unfolding under dictation of the then Chief

Minister. The remaining allegations would then be unconnected

with the larger conspiracy and, therefore, need not be taken forward

against the then Chief Minister and high officials of the State

Government. In any case, every allegation has been duly enquired

into and investigated by the SIT before forming its opinion that no

131

case had been made out against the offenders named in the stated

complaint.

(xx) The appellant, however, has now changed the goalpost by

placing emphasis on transcripts of Tehelka Tape on the argument

that genuineness of the tape had not been doubted; and, therefore,

to contend that the contents of the tape inspire confidence to proceed

against the persons named in the complaint. On the other hand,

even though the Tehelka tape did not form part of the complaint

dated 8.6.2006, which was filed almost four years after the events of

February, 2002 as the Tehelka tape surfaced only on 27.10.2007,

yet the SIT enquired into the same 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 the maker of the statement

and not against other persons though referred to in such a

statement

. In that light, the Tehelka tapes, heavily relied upon by

the appellant, were of no avail. Notably, the tapes have been relied

in three other cases investigated by the SIT and also in Gulberg

Society case being CR No. 67/2002, but the trial Court has adversely

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

Investigation, (2014) 6 SCC 495

132

commented upon the said tape, which decision is now subject matter

of appeal before the High Court and this Court in those cases.

(yy) Further, even if the material in Tehelka sting operation being a

genuine work is to be accepted, it does not follow that the contents

of such tape would have probative value. Upon investigation, if it

was to be found that the tape and the contents have probative value,

only then it could be used, that too against the maker of the

statement alone and not against any other person.

(zz) It was pointed out that Mr. Ashish Khaitan was examined as

PW-313 in trial of Gulberg Society case being CR No. 67/2002 and

his version 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 continuously

introducing new arguments/allegations at different stages of the

proceedings. That has been depicted in the chart given in paragraph

45 of the Final Note Part-III of respondent No. 2, which reads thus:

133

“Sl.

No.

Stage of Protest

Petition filed

before Ld.

Magistrate

Stage of

arguments

before Ld.

Magistrate

Stage of revision

application/submissions

before Hon’ble High

Court of Gujarat

Stage of

submissions

before Hon’ble

Supreme Court

Allegation of

“Criminal

Negligence of the

Ahmedabad Fire

Brigade under

PC Mr. Pande”:

Accused No. 1

was brought into

Gujarat politics

to vehemently

push the

aggressive

supremacist

Hindutva

ideology. He

came into Gujrat

politics with a

pre-determined

mindset of

aggressive

Hindutva and

anti-Muslim

prejudice/bias.

Issues related to the

constitution of the team

and the porosity with

power accused in the

Gujarat government.

Read from memoir

of Lt. Gen.

Zameeruddin

Shah, who led the

army operation in

Gujarat during the

riots. His

statements were

never recorded by

SIT. The book

stated that the

soldiers were

stranded at the

airfield when the

riots started.

Allegation of

post-mortem of

the dead bodies

at Godhra

Railway Station

A-1 on the

afternoon of

27.2.2002

instead of going

directly to

Airport,

deliberately took

a detour and

passed through

Meghaninagar

and Naroda

areas.

Petitioner witnessed police

officers in the barracks on

leave while Ahmedabad

burned.

SIT “collaborated

with accused

persons and

rewarded

handsomely”. Role

of SIT should be

investigated.

Tehelka Sting

Operation

A-1 also

addressed

another meeting

of political

workers at

Godhra on

27.2.2002 where

he assured

aggressive RSS-

VHP cadres that

the police would

not interfere in

their thirst for

revenge

Special public prosecutor

and assistant prosecutors

RK Shah and Naina Shah

had resigned their

positions from the

Gulberg case stating that

they were being misled by

the SIT and also that the

behaviour of the Judge

was questionable.

Mobile Phones of

the accused

persons were not

seized by SIT.

Suspicion on the

cause and

While returning

to Gandhinagar

Between May-July 2004,

the Hon’ble Supreme

FIRs were

registered on the

134

manner of fire in

coach S-6 of

Sabarmati

Express on

27.02.2002

again, they (A-1

plus others) took

a diversion

towards Naroda

and

Meghaninagar

which were out of

the way. A-1

visited these

areas in order to

give effect to the

Conspiracy

Court ordered protection

by the Central

Paramilitary to 570

witness survivors and

human rights defender

Teesta Setalvad following

direct threats from

powerful accused.

complaints of

police

officials/personnel,

and version of

victims were not

recorded as FIRs.

New accused

persons

proposed in the

Protest Petition

covering almost

all the

administration

of Government

of Gujarat at the

time of riots and

their successors

The Motor

Cavalcade

carrying 54 dead

bodies covered

distance of 153

kms from Godhra

to Sola Civil

Hospital in six

hours. It can be

inferred that the

cavalcade was

stopping on the

way and

instigating

violence.

Preventing the imposition

of curfew.

Argument of the

petitioner at

previous stages

was that the larger

conspiracy was

hatched by named

accused persons,

and manifested

mainly through

meeting in the

evening of

27.02.2002.

Differing from this

argument it is

argued at this stage

that materials

available on the

record prima facie

showed that there

was a conspiracy

but who all were

involved in this

would be known

only if there is an

investigation on all

the aspects.

The Amicus

Curiae, Mr. Raju

Ramachandran

has

recommended

the prosecution

of A-1 Mr. Modi

under Sections

166 and 153A

and 153B of the

IPC.

SIT did not

investigate that

whether Army

was given

adequate powers

under section

129/130 of CrPC.

Making a pretence of

verbally calling in the

Army on the late evening

of 28.2.2002 but not

actually allowing its

deployment

Destruction of

records/wireless

The SIT did not

bother to record

SIT kept the Hon’ble

Supreme Court and the

135

logs/vehicle log

books by

Government of

Gujarat

statements of

Justices Verma

or Justice Anand

or the rest of the

NHRC or even try

and collect

evidence from

them

Amicus Curiae in the

Dark about documents

(PCR messages) that point

to conspiracy.

Sandesh

Newspaper as

Collaborator in

the Conspiracy

A letter

addressed by

retired Justice

Divecha to the

NHRC which

exposed the

complete

targeted violence

against members

of the Muslim

minority in

Ahmedabad.

Deepda

Darwaza

Conspiracy

10.

SIB messages on

• ‘Prelude and

Build up to

the violence

• Provocative

behaviour of

Kar Sevaks

• Preparation

of violence

after

Godhra”

(bbb) Insofar as fresh allegation regarding criminal negligence of fire

brigade in Ahmedabad under Mr. P.C. Pande, it obviously overlooks

the fact that fire brigade comes within the Ahmedabad Municipal

Corporation and not State police. Mr. P.C. Pande was Commissioner

of Police of Ahmedabad city and had nothing to do with the

functioning of fire brigade. In the complaint, a vague allegation is

136

made that the fire brigade/help did not reach on time when needed.

However, that was owing to in many of the disturbed areas, roads

were blocked by putting obstacles.

(ccc) Similarly, the allegation regarding post mortem of dead bodies

at Godhra Railway station being part of larger conspiracy, is founded

on conjectures and surmises. The Godhra incident was fully

investigated and tried in which no such case was put forth. That

matter had travelled to the High Court as well and now it is pending

in this Court. The issues regarding necessity to do post mortem of

the dead bodies in the Railway yard and the manner of doing it, has

been examined in those proceedings. In the name of protest petition,

the appellant intends to enlarge the scope of enquiry including into

fresh matters such as the manner in which the fire occurred in the

two coaches of Sabarmati Express on 27.2.2002, which aspect has

been thoroughly investigated in that case. The appellant had gone

to the extent of levelling insinuation by attributing fire ignited by the

persons inside the train themselves or by other persons from the

same community as part of larger conspiracy to spread hatred and

violence across the State. That too, with the involvement of the

137

political dispensation at the highest-level being part of larger

criminal conspiracy. The attempt of the appellant is to bring in all

other cases (Sardarpura case, Deepda Darwaza case, Ode case,

Naroda Patiya case, Naroda Gaam case, Best Bakery case, Bilkis

Bano case etc.), which have already been thoroughly investigated

and tried by the concerned Court including in respect of charge of

criminal conspiracy at the concerned level in the given case. That

cannot be countenanced.

(ddd) It is urged that the appellant is also ill-advised to heavily rely

upon certain information in a book written by former Major General,

who never came to give his statement before the SIT, despite the

public notice issued on 28.4.2008 after the SIT was appointed by

this Court to investigate nine major cases. The book was written

only in 2018. The veracity of the contents thereof would only be in

the realm of guess work.

(eee) It is urged that the SIT has done everything to the best of its

ability and as a team, investigated all the nine major cases assigned

to it by the Court. Despite the commendation by this Court about

the humongous task undertaken by the SIT, the appellant had the

138

impudence to make submission bordering on questioning the

integrity of the SIT appointed by this Court; and though the work

was completed by it under the strict vigil of this Court including the

Amicus Curiae who had taken assistance of all the stakeholders and

also Ms. Teesta Setalvad. The Amicus Curiae, in one sense, was

discharging the role of investigating into the work of Supreme Court

appointed investigators (the SIT) – investigating the investigators.

The SIT, after taking over investigation of nine major cases assigned

to it by this Court, filed supplementary chargesheets in all those

cases and also pursued the cases until the stage of trial, and is still

reporting about the progress of those cases to this Court periodically.

(fff) As regards the investigation of complaint dated 8.6.2006, it has

been done by more than one investigating officer during relevant

periods at different point of time as per the exigency and direction of

this Court, but the finding and observations of the SIT in every report

have been consistent. Significantly, the members of the SIT have

been continuing to function under the directions of this Court even

after their superannuation from service, only because this Court had

been satisfied about their performance. At one stage, similar

139

attempt was made by the appellant, as a result of which the Court

had to stay the trial of Gulberg Society case being CR No. 67/2002,

which was eventually lifted on 1.5.2009

for the reasons noted in

the said order. In fact, this Court had taken note of the

misadventure of Ms. Teesta Setalvad in forwarding her letters

written to Chairperson of the Supreme Court appointed SIT to the

OHCHR, Geneva and that upon her undertaking that she will not do

so in future, the matter stood closed. It is urged that insinuations

have been made against the Supreme Court appointed SIT and, in

the process, the wisdom of this Court has been questioned in

accepting the work of SIT as fair and complete investigation of the

allegations in the stated complaint.

(ggg) It is a matter of record that this Court reposed complete trust

in the SIT not only by entrusting responsibility of investigation of the

stated crime, but also to ensure that the trial of all those cases

proceeded in a fair manner and not compromised, by giving

authority to SIT to recommend names of able and apolitical lawyer

to be appointed as public prosecutor(s), including providing

supra at footnote No. 18

140

protection to witnesses when required. With the untiring efforts of

the Supreme Court appointed SIT, trials of eight other cases ended

in substantial number of convictions including imposition of capital

punishment. Such being the track record of the SIT, which has been

closely monitored by this Court from time to time to its satisfaction

and commended upon on more than one occasion, yet the appellant

has gone to the extent of questioning the integrity of the SIT, despite

the fairness in the investigation. Such a plea cannot be

countenanced and is in the nature of questioning the authority and

wisdom of this Court in expressing satisfaction about the

performance of the SIT and commending expressly on more than one

occasion inter alia, in its orders dated 1.5.2009

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

concerned authorities, a writ petition was filed by her for issuing

direction to the competent authority to register the same as FIR to

be investigated by an independent agency (not the Supreme Court

appointed SIT). Ms. Teesta Setalvad joined as petitioner No. 2 for

supra at footnote No. 18

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the first time in these proceedings before the High Court. The High

Court vide judgment dated 2.11.2007 in Criminal Application No.

421/2007, opined that Ms. Teesta Setalvad had no locus to maintain

such application and decided the writ petition at the instance of

appellant – Zakia Ahsan Jafri, by permitting her to file appropriate

private complaint before the Magistrate under Section 190 of the

Code. That opinion of the High Court has not been reversed by this

Court while disposing of SLP(Crl.) No. 1088/2008 on 12.9.2011

(iii) As noted earlier, even though the appellant had been pursuing

SLP(Crl.) No. 1088/2008 before this Court for direction to the

competent authority to register the complaint as FIR, this Court

permitted the trial of CR No. 67/2002 concerning Gulberg Society to

proceed, in which appellant – 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 evidence regarding larger conspiracy referred

to in her complaint dated 8.6.2006. The material on record would

clearly suggest that she is being driven by Ms. Teesta Setalvad to

pursue and so to say, precipitate her complaint. The complaint,

supra at footnote No. 26

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however, is vague and bereft of allegations of criminality. At best,

the allegations founded on the material/affidavits filed before the

Nanavati-Shah Commission, were indicative of dereliction of duty of

concerned officials/authorities. The complaint is based essentially

on the statements of Mr. R.B. Sreekumar, Mr. Rahul Sharma and

Mr. Sanjiv Bhatt, which may support the allegations of inaction or

dereliction of duty by the concerned high officials. The claims made

by these three persons, however, have been contradicted by the

concerned persons on the basis of contemporaneous record. The

complainant – Zakia Ahsan Jafri yet wants to proceed including on

the basis of statements of these three officials against the version of

the entire establishment, which is backed by contemporaneous

record.

(jjj) Mr. R.B. Sreekumar had referred to Register, which was his

personal diary and not official record, as investigated and found by

the SIT. Being his personal diary, it could not be used against the

offenders named in the complaint and in any case, the contents

thereof being in the nature of entries made in the usual course of

official business by the concerned department expected to act in

143

tandem with concerned official agencies. The contents of the diary,

in the opinion of the SIT, were of no avail. He had filed affidavit

before the Nanavati-Shah Commission in the year 2009 for the first

time. In the earlier affidavits, no reference was made to the said

diary/register. Moreover, Mr. R.B. Sreekumar was posted in Law &

Order Division only in April, 2002 after the ghastly events had

already unfolded in February and March, 2002. Thus, he had no

personal knowledge about any instructions, much less allegedly

given to the high officials or by high officials to their subordinates at

the relevant point of time as being in the nature of criminal

conspiracy.

(kkk) Similar is the case of Mr. Rahul Sharma, another star

witness of the complainant (appellant). He had referred to the call

records in question for the first time only in 2008. Before that, he

had filed more than one affidavit before the Nanavati-Shah

Commission making no reference to the said call records. Further,

in the subsequent affidavit, the stand taken by him is completely

different. It is the case of the SIT that after lapse of one year, no

details regarding call records are preserved by the service provider.

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To the same end, seizure of mobile phone after lapse of seven years

would have had served no purpose. Further, the authentication of

the call details/records supplied by Mr. Rahul Sharma and the call

details/records available with the SIT were duly considered before

forming opinion by the SIT. Mr. Rahul Sharma claims to have been

authorised to assist the supervisory officer in investigation of the

post-Godhra riot case, which were being investigated by Crime

Branch – Ahmedabad city, by the then Commissioner of Police,

Ahmedabad City. He was neither investigating officer nor direct

supervisory officer in the Naroda Police Station CR No. I 193/2002.

He claims to have obtained compact disc containing call details in

connection with stated case of Naroda Police Station from two

different cell phone service providers (M/s. Cellforce and M/s. AT&T)

containing call details of all subscribers in Ahmedabad city and

Godhra as case property of the offences under investigation.

However, he failed to hand over the said case property to the

investigating/supervisory officer of the case, nor got it entered into

the register of case property (Muddamal) and also not informed the

Court of jurisdiction about the seizure of aforesaid case property.

Whereas, he produced the compact disc for the first time only on

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31.5.2008, for reasons best known to him. The compact disc

produced by Mr. Rahul Sharma before the Nanavati-Shah

Commission was then obtained by Mr. Amresh N. Patel, Jan-

Sangharsh Manch from the Commission of inquiry, as also, by the

investigating officer. It was not possible for the SIT to obtain

certificate under Section 65B of the Indian Evidence Act, 1872 as

the original compact discs were never produced by Mr. Rahul

Sharma. Notably, the data from the compact discs were admittedly

copied by Mr. Rahul Sharma in his personal computer and in the

changed format i.e., ZIPPED format. In other words, Mr. Rahul

Sharma had failed to ensure the integrity of the data and never

produced the original compacts discs of the two mobile service

providers. Despite that, the SIT attempted to authenticate the

available data by sending it to Forensic Science Laboratory,

Ahmedabad for examination, comparison and checking the contents

available therein. The laboratory has opined that MD5 Hash value

of the files in all the three compact discs were found to be same, but

the call data records in the CPU of personal computer of Mr. Rahul

Sharma indicated that the files containing call data records or

fragments of the files could not be found on the computer storage

146

media. The SIT also recorded statements of various witnesses under

Section 161 of the Code for tracing the original compact discs and

authenticating 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 the opinion of the SIT in detail. It was noticed that the

call details of the Gandhinagar tower where most of the functionaries

of the Government of Gujarat were placed, was not available with

the SIT, as the same had not been requisitioned/obtained by Mr.

Rahul Sharma during investigation of the riot cases. The SIT has

thoroughly investigated even this aspect and all related material and

having found that the said material appears to be doctored and

fabricated and not in consonance with the official records. It thus

noted its conclusion that the same was of no avail to proceed against

the named offenders for offence of larger conspiracy in connection

with C.R. No. 67/2002 concerning Gulberg Society or otherwise.

(lll) It is urged that the appellant is heavily relying on the

statements of Mr. Rahul Sharma, despite the fact that in the

complaint dated 8.6.2006, he was named as offender No. 45 and

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accusations against him were specifically mentioned against his

name in the body of the complaint while also showing him as witness

No. 5 in the same complaint. However, the copy of complaint filed

before this Court reveals that the relevant paragraph making

accusations against Mr. Rahul Sharma has been deleted alongwith

his name as offender No. 45 in the complaint. This is a serious

matter.

(mmm) The case of Mr. Sanjiv Bhatt is still worse. He has been

convicted for murder (as mentioned in paragraph 7 under the head

“Short Pointers” in the Convenience Compilation filed on behalf of

respondent No. 2); and for planting narcotics in the room of a lawyer

in some other State. He had claimed that he was present in the

meeting convened 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

Sanjiv Rajendra Bhatt vs. Union of India & Ors.

, it was urged

that the same were indicative of the character and conduct of Mr.

Sanjiv Bhatt, who falsely claimed to have remained present during

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

148

the meeting of high officials on 27.2.2002, where the then Chief

Minister had allegedly made certain objectionable utterances.

(ooo) The appellant wants this Court to disregard the version of all

other high officials and to proceed against the named offenders only

on the basis of version of three persons proclaiming themselves as

being wedded to truth. As a matter of fact, it is urged that all the

three persons on whose statements emphasis has been placed, have

been adversely commented upon not only by the Nanavati-Shah

Commission, but also by the SIT in its final report including the

damning observations by this Court against Mr. Sanjiv Bhatt.

(ppp) Moreover, the appellant has repeatedly argued that the SIT

did not record statement of Mr. Anil Patel, which fact is contrary to

the record. At the same time, the appellant placed reliance on the

statements of Mr. Anil Patel, who has not been named as offender in

the complaint dated 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,

a VHP worker; and the third – Dr. Anil Patel, a general practitioner

at Ahmedabad City.

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(qqq) As stated earlier, the repeated grievance made on behalf of the

appellant that crucial witness – Mr. Anil Patel was not even

examined by the SIT, is incorrect submission. In that, there are

three persons with same name and the person who has been stung

by operation Tehelka is Mr. Anil Shankerbhai Patel, a VHP worker,

whose statement was duly recorded 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 out of total 18 involved in

sting operation, which were found to be relevant for the purpose of

enquiry into the allegations under consideration.

(rrr) As regards the allegation regarding dead bodies having been

paraded, the same has been fully enquired into and the SIT was of

the opinion that no such event of parading had occurred at any

place. However, a novel argument is being pursued by the appellant

before this Court. For, the allegation in the complaint was of having

handed over dead bodies to private persons, namely, Hasmukh Patel

and Jaideep Patel. During the investigation, it has come to the fore

that the letter written by the Tehsildar, handing over bodies,

150

mentioned the name of Jaideep Patel, but that was not because of

the instructions given by any superior authority. Further, the local

Tehsildar has been proceeded departmentally for this folly. The

contemporaneous record including the statements of concerned

persons, however, reveal that the dead bodies were carried in closed

vehicles under police escort, alongwith whom Mr. Jaideep Patel had

merely travelled. The process of handing over of the dead bodies to

the officials of the hospital at Ahmedabad was in fact done by the

officials/police accompanying the dead bodies and not by Mr.

Jaideep Patel. After taking charge of the dead bodies, the officials of

hospitals handed over the same, after due identification, to their

relatives and the bodies which could not be identified despite effort

of DNA test matching, were cremated by the local officials at

Ahmedabad. There is not even a tittle of material to indicate that

the bodies were taken in open vehicles or so to say, paraded from

Godhra to Ahmedabad or anywhere else by any group of private

persons before cremation. The decision to take bodies to

Ahmedabad was a conscious and unanimous decision of the

concerned authorities at the local level and not on instructions or

directions given by the then Chief Minister, as alleged. It was so

151

decided as 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 legal representatives after identification at Godhra itself.

The remaining 54 bodies were sent under police escort to

Ahmedabad, as most of the victims 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 of which 12 could be later

on identified by DNA test and 7 remained unidentified. Hence, it is

seen that it became convenient for the relatives of the deceased

persons to collect the dead bodies from Ahmedabad. It was also

decided to take the dead bodies during night time under police

protection to avoid any untoward situation. Such being the material

on record, the argument regarding the bodies being paraded, much

less as a part of larger conspiracy at the highest level, is

preposterous.

(sss) To begin with, the appellant had argued that dead bodies were

purposely paraded all over, but later improved upon that grievance

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by showing that parading of bodies was done after hospital handed

over bodies, duly identified, to the respective relative until the same

was taken for cremation.

(ttt) Significantly, the complaint dated 8.6.2006 neither makes

mention about hate speeches being outcome of larger conspiracy nor

it is alleged that so-called parading of dead bodies was resorted to

as part of larger conspiracy.

(uuu) Much had been argued by the appellant about no

investigation by the SIT in respect of hate speeches. It is submitted

by the learned counsel 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 those cases, charges regarding hate speeches

have been enquired into.

(vvv) It is urged that the allegations regarding build-up or laxity

or about the post-mortem done in open in Railway yard, failure to

provide for adequate bandobast or arranging fire brigade on time,

are not supported by any credible material, much less to raise a

strong suspicion to proceed against the named offenders being

involved in larger conspiracy. Appellant had the gumption to

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contend, suggestive of the fact that the train was set on fire at

Godhra by the passengers themselves or by persons belonging to

their own community who were engaged in doing preparatory (build-

up) arrangements.

(www) The attempt of the appellant was to present rambling facts

to create confusion, leaving out core issues that needed to be

focussed to cull out the material on the basis of which an objective

and decisive opinion could be formed that the offence of larger

conspiracy at the highest level had been committed and the named

offenders have committed the same. That is completely absent and

for which reason, the appellant has chosen to make such

pretentious presentation before this Court including not to argue on

allegation Nos. (i) and (iv) concerning larger conspiracy involving the

then Chief Minister and other high officials of the State Government.

Instead, the appellant has now adopted a stratagem only to focus on

the other allegations in the complaint and further allegations

mentioned in the protest petition on the specious argument that

those allegations can be made good on the basis of undisputed

documents and record. This is a subterfuge created by the appellant

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for achieving the ill-intended design of keeping the charge or

allegation of larger conspiracy as noted in allegation nos. (i) and (iv)

open, by adopting circuitous route little realising that the other

allegations are all unconnected and have no causal bearing with the

allegations of larger conspiracy by the then Chief Minister and other

high officials named as offenders in the complaint.

(xxx) The appellant had the audacity to assert in the protest

petition that it is open to her to keep on adding new materials and

allegations which the Court is bound to examine to do complete

justice, so that she would succeed in her design to keep the pot

boiling and politicising the crime. This indeed was being done at the

instance of the group of persons in the name of so-called public-

spirited persons like Ms. Teesta Setalvad. The protest petition is not

a genuine protest petition by any standard.

(yyy) Indisputably, large number of criminal cases came to be

registered after the mass violence across the State. It is stated that

around 2000 cases came to be registered concerning the mass

violence out of which nine major cases were assigned to the SIT by

this Court vide order passed in writ petition filed by NHRC. In none

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of the cases including nine cases, any evidence of alleged larger

conspiracy came to the fore either during the investigation or during

the trial of those cases. It is only in the complaint under

consideration that allegation of larger conspiracy at the highest level

of Government has been made, which remained unsubstantiated,

leave alone creating suspicion against the offenders named in the

complaint. If this conjured plea was to be encouraged, it may give

rise to uncertainty and possibility of reopening hundreds of cases,

already concluded and may be pending in appeals before the High

Court or this Court.

(zzz) The attempt of the appellant is to continue with unfounded

allegations against the then Chief Minister/politicians/high

officials/bureaucrats without raising those allegations during the

investigation of CR No. 67/2002 concerning Gulberg Society at the

earliest opportunity after publication of notice by the SIT inviting

public to give their statement, if they were so interested and had any

specific information about such crime. No one came forward

including Mr. R.B. Sreekumar, Mr. Rahul Sharma and Mr. Sanjiv

Bhatt, who now claim to be the protagonist of truth to depose those

156

facts before the SIT. As a matter of fact, appellant – Zakia Ahsan

Jafri, who has been examined as witness in Gulberg Society case

being CR No. 67/2002 as PW-337 was not an eye-witness as 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

coupled with the limited remit given to the SIT by this Court, the

question of directing further investigation of any other matter

besides the allegations in 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 to

persuade this Court to direct the SIT to reinvestigate the crime of

criminal conspiracy, which has already been tried by the Court of

competent jurisdiction, in which the accused named therein have

already been acquitted. Any such attempt would be infringement of

their right guaranteed under Section 300 of the Code and Article 22

of the Constitution. If the appellant was so keen, she should have

157

availed of the opportunity in the form of liberty granted by the High

Court on 2.11.2007 by filing private complaint rather than pursuing

allegations of larger conspiracy or any crime other than enquired

and tried in connection with Gulberg Society case being CR No.

67/2002. Having failed to do so and being party to the orders passed

by this Court from time to time on the special leave petition(s) filed

by them against the order of the High Court, it is not open to argue

in the teeth of such directions. It is now too late for them to contend

that the complaint dated 8.6.2006 be proceeded as a private

complaint or be registered as FIR, much less to permit her to raise

fresh allegations in 2013 by way of protest petition.

(bbbb) It is the submission of the SIT that it had done much more

than “looking into” the complaint albeit under the supervision of this

Court by examining and questioning several persons and presenting

periodical reports to this Court including the final report before the

Metropolitan Magistrate unlike in any other normal criminal case.

(cccc) At the end of the investigation done by the SIT, it has been

noticed that the allegation regarding larger conspiracy mentioned in

the complaint dated 8.6.2006 was based on material which was

158

either found to be fabricated or unuseful, leave alone raising any ray

of suspicion to proceed against the named offenders.

(dddd) Involvement of Babu Bajrangi unravelled from Tehelka

Tape transcript, does not have any impact on the allegation

regarding larger conspiracy, which alone needs to be dealt with in

these proceedings. As a matter of fact, Babu Bajrangi had been

named as accused in Gulberg Society case being CR No. 67/2002

and the evidence against him has been dealt with appropriately in

that case, resulting in his conviction. His version in the tape, at best

would be in the nature of extra judicial confession to be used against

him and not against any other person.

(eeee) Allegation of larger conspiracy at the highest level can be

proceeded further only if there is substantive evidence to establish

the same or could be so inferred on the basis of such substantive

evidence. The substantive evidence of Mr. Sanjiv Bhatt, who

allegedly claimed to be present in the meeting of 27.2.2002, stands

rebutted and falsified by all the other persons who were actually and

physically present in the stated meeting, who in one voice mentioned

that he was not present in the meeting.

159

(ffff) As a matter of fact, the SIT in the final report submitted

allegation-wise and offender-wise, concluded that no offence has

been made out, as alleged against any of the named offenders.

(gggg) The SIT had also considered the findings and

recommendations of NHRC while analysing the entire material

collated by it during investigation. The same has been extensively

discussed in the final report from pages 312-320. Needless to

underscore that the findings and recommendations of the NHRC by

itself cannot be the basis to fasten criminal liability on the erring

officials/administrators. For that, hard evidence indicating the acts

of commission or omission constituting some offence is available

either in the form of oral or documentary evidence. There must be

substantive piece of material which will pass the muster of

admissible evidence before the Court of law to fasten criminal

liability. This is reinforced from the purport of Section 15 of the

Protection of Human Rights Act, 1993 or Section 6 of the 1952 Act,

as well.

(hhhh) Similarly, some opinion formed or observation made in

the enquiry report of any private forum/commission also cannot

160

have any bearing on the criminal action to be instituted or pursued

against any erring official/administrator. Notably, in the present

case, the complainant has verily relied upon the affidavits of officials

filed before the Nanavati-Shah Commission referring to revelation of

relevant fact by certain persons who themselves had no personal

knowledge and their claim regarding presence in the official meeting

is falsified on the basis of overwhelming evidence to the contrary.

Merely because one person claims about the existence of a particular

fact, does not give rise to a triable issue unless that version is

corroborated by contemporaneous evidence/material and more so

when there is substantive evidence to indicate falsity of his claim.

The private Commission founded its observations on the basis of

disclosure made by some unidentified Minister. When in fact the

overwhelming evidence indicated that no cabinet minister was

present in the review meeting, which was attended only by high

officials presided over by the Chief Minister. Similarly, the presence

of Mr. Sanjiv Bhatt stands falsified by the consistent statements

given by high officials who were present in the meeting. All this has

been thoroughly analysed by the SIT and recorded in the final report.

In light of such overwhelming material, it was not even a case of

161

slightest of suspicion against the highest functionary of the State for

having made any 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 with the theory of larger conspiracy by the

highest office, must fall to the ground being unsubstantiated. To

buttress this argument, reliance has been placed on contents of final

report from pages 245-260.

(iiii) It is argued that the police report or chargesheet ought to

contain crystalised case about the involvement of named offenders

having committed the offence under consideration and mere

perception of suspicion is of no avail. That is the mandate

underlying Section 169 read with 173(2)(i)(d) of the Code. Such case

cannot be made out on the basis of personal diary entries as

observed in Central Bureau of Investigation vs. V.C. Shukla &

Ors.

(jjjj) In other words, even if the material collated during the

investigation discloses suspicion, that may not be sufficient for the

(1998) 3 SCC 410 (Jain Havala Case)

162

investigating officer to opine that the offence has been made out,

much less have been committed by the offender/accused warranting

his prosecution in that regard. It is a different matter that the

Magistrate for issuing process, taking cognizance or framing charge

against such person, can do so merely on the basis of strong

suspicion. The scale of satisfaction to be reached by the

investigating officer for being convinced that an offence has been

committed and the concerned person is involved in the commission

of that offence, is qualitatively different than mere case of suspicion.

For that, the investigating officer must be certain, at least prima facie

(in his mind), that the material/statement on which he proposes to

rely to prosecute any person would pass the muster of legally

admissible evidence during the trial. Indeed, such a view is a

tentative view to be taken by the investigating officer before

presenting the chargesheet for prosecuting named person for having

committed (cognizable) offence in question on the basis of entirety of

the material in his possession. In other words, the job of an

investigating agency does not and cannot end in merely establishing

a prima facie case of strong suspicion. Whereas, he is obliged to

unearth the entire truth and not merely leave the job at the stage of

163

strong suspicion. In doing so, the investigating officer does not

merely rely upon the version of the complainant but is obliged to

examine the matter from all angles including to test the authenticity

of the possibilities emerging therefrom and then forming his opinion

as to what he would believe to be the true course of events. It must,

therefore, follow that the investigating agency does not act as mere

post office, but is obliged in law to examine the veracity, quality,

believability of any material that is unearthed during the

investigation and then to form opinion (in its mind) on the totality of

the circumstances as discernible from the entirety of the materials

on hand and record that in the form of police report under Section

173 of the Code to be presented before the Magistrate. The

investigating agency, by the nature of its duties, is required to adopt

one version of the events that it would believe to have occurred whilst

submitting report under Section 173 of the Code. In presenting a

report to send the accused for trial of being involved in commission

of offence merely on the basis of suspicious circumstances,

therefore, would be a case of abdication of statutory duty of the

investigating agency and may not also serve the cause of justice.

164

(kkkk) It is submitted that there is hardly any argument

presented and brought home by the appellant regarding

shortcomings in the material adverted to in the final report or about

the improper understanding of the SIT in that regard. Given the

material and its analysis in the final report, the conclusion reached

by the SIT is unassailable, namely, that no case had been made out

to proceed against the persons named in the complaint as offenders

for offence of larger conspiracy or for that matter, any other crime.

(llll) In substance, it is urged that no fault can be found with the

satisfaction recorded by the SIT in the final report that no case for

proceeding against the named offender has been made out, much

less of having indulged in larger criminal conspiracy. Even the

Magistrate had applied its mind to the totality of the material

produced by the SIT alongwith the final report including the issues

raised in the protest petition whilst rejecting the same and accepting

the final report of the SIT. To buttress the argument that the

investigation is the exclusive prerogative of the SIT including to form

opinion one way or the other on the basis of the material collated by

it during investigation and it does not affect the powers of the

165

Magistrate to direct further investigation, reliance is placed on the

decisions of this Court in State of Bihar & Anr. vs. JAC Saldanha

& Ors.

, M.C. Abraham & Anr. vs. State of Maharashtra &

Ors.

and Shariff Ahmed & Ors. vs. State (NCT of Delhi)

SUBMISSIONS OF THE RESPONDENT – STATE OF GUJARAT

8. (a) The learned Solicitor General of India appearing for the

State of Gujarat broadly adopted the arguments advanced on behalf

of the SIT. In addition, he contended that the allegation regarding

larger conspiracy is being pursued by Ms. Teesta Setalvad only out

of vengeance, so as to defame the entire State of Gujarat. The entire

case in the complaint was mainly resting upon the official records

and affidavits of officials of the State of Gujarat filed before Nanavati-

Shah Commission, to take forward allegation of State sponsored

crime and of targeting the minorities in the State. Appellant – Zakia

Ahsan Jafri was used as a tool to further the said design, who in

turn fell prey to the influence exerted by Ms. Teesta Setalvad and

(1980) 1 SCC 554

(2003) 2 SCC 649

(2009) 14 SCC 184

166

lent her name as complainant in the complaint dated 8.6.2006 being

the widow of deceased – Mr. Ehsan Jafri, Member of Parliament.

There is material in the final report suggestive of Ms. Teesta Setalvad

having conjured facts and evidence including fabrication of

documents by persons who were to be prospective witnesses of the

complainant. It is not only a case of fabrication of documents, but

also of influencing and tutoring the witnesses and making them

depose on pre-typed affidavit, as has been noted in the judgment of

the High Court dated 11.7.2011 in Criminal Miscellaneous

Application No. 1692/2011

. That fact came to the fore in the

admission given by appellant – Zakia Ahsan Jafri during her cross-

examination in the Gulberg Society case being CR No. 67/2002. As

a matter of fact, the learned Solicitor General would submit that the

SIT should have taken steps to prosecute Ms. Teesta Setalvad for

damning the elected representatives, bureaucracy and police

administration of the whole State of Gujarat for ulterior purposes.

Even in the case of husband of Ms. Teesta Setalvad, the High Court

had strongly deprecated his conduct.

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

167

(b) The learned Solicitor General took us through the judgment of

the High Court, dated 12.2.2015 dealing with applications for grant

of anticipatory bail filed by Teesta Atul Setalvad and her husband –

Firozkhan Sayeedkhan Pathan in connection with CR No. 1/2014

for offences punishable under Sections 420, 406, 468, 120-B of the

IPC and Section 72 A of the Information Technology Act, 2000,

pointing out observations therein as to how the donation money

collected by them in the name of Sabrang Trust on the

representation that the same would be spent on poor and needy

persons affected by the mass violence, has been misused and

misappropriated for their personal pleasure and comfort. The High

Court rejected that application having found that custodial

interrogation of the applicants would be necessary. Relying on

adverse observations, it is urged that the present proceedings were

not genuine proceedings and the appellant has been set up, who is

unaware about the real position. Reliance was also placed on the

decision of this Court in Testa Setalvad

, dealing with the powers

of police officer to seize certain property in the course of investigation

supra at Footnote No. 62

168

and the observations made by this Court against Ms. Testa (Teesta)

Setalvad and her husband for rejecting the said appeal challenging

the authority of the police officer to effect seizure.

the complaint dated 8.6.2006 had to be proceeded with only because

of the indulgence shown by this Court on 27.4.2009

by issuing

direction to the SIT to “look into” it and do the needful, whereafter

subsequent steps have been taken by the SIT, strictly under the

supervision of this Court including close monitoring by the Amicus

Curiae appointed by this Court. It is, therefore, not open to the

appellant to question the wisdom of this Court in accepting the

investigation made by the SIT as completed; and also directing the

SIT to present its report before the Magistrate taking cognizance in

Gulberg Society case being CR No. 67/2002 by reckoning the report

as one under Section 173 of the Code. This Court not only selected

the major nine cases, which were required to be investigated under

Court monitoring by the SIT appointed by this Court, but also

selecting the SIT members who enjoyed high reputation and wide

supra at footnote Nos. 4 and 17

169

experience behind them in reaching the high position. Besides, this

Court empowered the SIT to not only fairly investigate, but to ensure

that the trial in connection with those cases is not compromised in

any manner, for which it could recommend the names of advocates

as public prosecutors and submit periodical report to this Court.

This Court also ensured fair trial by requesting the Chief Justice of

the concerned High Court to personally identify Judges to preside as

Special Court for conducting the trial of those selected cases. Such

is the gamut of directions and sui generis procedure adopted by this

Court in relation to the complaint dated 8.6.2006, whilst allowing

the trial in Gulberg Society case being CR No. 67/2002 to proceed

parallelly. Indubitably, the investigation could be done by the SIT

only as per the remit given to it and on the same logic even the

Courts ought to deal with the matter on the same scale.

(d) He invited our attention to Nanavati-Shah Commission report

and the conclusion recorded therein including about the prompt

measures taken by the State Government, immediately after the

incident in question and thereafter to restore normalcy. The State

Government had to deal with a situation which was unparalleled and

170

the entire State administration was overrun by such unprecedented

mass violence.

(e) In the end, he submits that even though the issues raised by

the appellant are unfounded and unsubstantiated, the matter is

being pursued with full vigour at the behest of Ms. Teesta Setalvad,

whose sole intention is to keep the matter alive as rightly contended

by the learned counsel for the SIT. The learned Solicitor General

argues that there is no need to have a relook at the opinion of the

SIT or case for further investigation as propounded by the appellant.

Even in his submission, neither the opinion formed by the SIT after

thorough investigation and proper analysis of the entire material

collated by it during investigation, is flawed nor the final order of the

Magistrate to accept the final report submitted by the SIT and in

rejecting the protest petition or that of the High Court in that regard,

requires further scrutiny at the hands of this Court under Article

136 of the Constitution of India. He has, therefore, prayed for

dismissal of this appeal.

171

9. We have heard Mr. Kapil Sibal, learned senior counsel for the

appellant, Mr. Mukul Rohatgi, learned senior counsel for the SIT and

Mr. Tushar Mehta, learned Solicitor General for the State of Gujarat.

CONSIDERATION

10. It is cardinal that upon receipt of the complaint such as dated

8.6.2006, the concerned police officer, if has reason to suspect the

commission of an offence referred to therein, ought to proceed with

the investigation consequent to registration of FIR under Section

154, since it discloses commission of a cognizable offence. As that

did not happen, the appellant had to approach the High Court for

issuing direction to register the stated complaint as FIR. Had the

FIR been registered by the station officer on his own, he would have

been obliged to proceed further as expounded in H.N. Rishbund

In this decision, the Court, inter alia, noted thus: -

“….. When information of the commission of a cognizable

offence is received or such commission is suspected, the

appropriate police officer has the authority to enter on the

investigation of the same (unless it appears to him that there

is no sufficient ground). But where the information relates to a

non-cognizable offence, he shall not investigate it without the

order of a competent Magistrate. Thus it may be seen that

supra at Footnote No. 37

172

according to the scheme of the Code, investigation is a normal

preliminary to an accused being put up for trial for a cognizable

offence (except when the Magistrate takes cognizance

otherwise than on a police report in which case he has the

power under Section 202 of the Code to order investigation if

he thinks fit). Therefore, it is clear that when the Legislature

made the offences in the Act cognizable, prior investigation by

the appropriate police officer was contemplated as the normal

preliminary to the trial in respect of such offences under the

Act. In order to ascertain the scope of and the reason for

requiring such investigation to be conducted by an officer of

high rank (except when otherwise permitted by a Magistrate),

it is useful to consider what “investigation” under the Code

comprises. Investigation usually starts on information relating

to the commission of an offence given to an officer in charge of

a police station and recorded under Section 154 of the Code. If

from information so received or otherwise, the officer in charge

of the police station has reason to suspect the commission of

an offence, he or some other subordinate officer deputed by

him, has to proceed to the spot to investigate the facts and

circumstances of the case and if necessary to take measures

for the discovery and arrest of the offender. Thus

investigation primarily consists in the ascertainment of

the facts and circumstances of the case. By definition, it

includes “all the proceedings under the Code for the

collection of evidence conducted by a police officer”. For

the above purposes, the investigating officer is given the power

to require before himself the attendance of any person

appearing to be acquainted with the circumstances of the case.

He has also the authority to examine such person orally either

by himself or by a duly authorised deputy. The officer

examining any person in the course of investigation may

reduce his statement into writing and such writing is available,

in the trial that may follow, for use in the manner provided in

this behalf in Section 162. Under Section 155 the officer in

charge of a police station has the power of making a search in

any place for the seizure of anything believed to be necessary

for the purpose of the investigation. The search has to be

conducted by such officer in person. A subordinate officer may

be deputed by him for the purpose only for reasons to be

recorded in writing if he is unable to conduct the search in

person and there is no other competent officer available. The

investigating officer has also the power to arrest the person or

persons suspected of the commission of the offence under

Section 54 of the Code. A police officer making an investigation

is enjoined to enter his proceedings in a diary from day-to-day.

173

Where such investigation cannot be completed within the

period of 24 hours and the accused is in custody he is enjoined

also to send a copy of the entries in the diary to the Magistrate

concerned. It is important to notice that where the

investigation is conducted not by the officer in charge of the

police station but by a subordinate officer (by virtue of one or

other of the provisions enabling him to depute such

subordinate officer for any of the steps in the investigation)

such subordinate officer is to report the result of the

investigation to the officer in charge of the police station. If,

upon the completion of the investigation it appears to the

officer in charge of the police station that there is no

sufficient evidence or reasonable ground, he may decide to

release the suspected accused, if in custody, on his

executing a bond. If, however, it appears to him that there

is sufficient evidence or reasonable ground, to place the

accused on trial, he is to take the necessary steps

therefore under Section 170 of the Code. In either case, on

the completion of the investigation he has to submit a

report to the Magistrate under Section 173 of the Code in

the prescribed form furnishing various details. Thus, under

the Code investigation consists generally of the following steps:

(1) Proceeding to the spot, (2) Ascertainment of the facts and

circumstances of the case, (3) Discovery and arrest of the

suspected offender, (4) Collection of evidence relating to the

commission of the offence which may consist of (a) the

examination of various persons (including the accused) and

the reduction of their statements into writing, if the officer

thinks fit, (b) the search of places or seizure of things

considered necessary for the investigation and to be produced

at the trial, and (5) Formation of the opinion as to whether

on the material collected there is a case to place the

accused before a Magistrate for trial and if so taking the

necessary steps for the same by the filing of a charge-sheet

under Section 173. The scheme of the Code also shows that

while it is permissible for an officer in charge of a police station

to depute some subordinate officer to conduct some of these

steps in the investigation, the responsibility for every one of

these steps is that of the person in the situation of the officer

in charge of the police station, it having been clearly provided

in Section 168 that when a subordinate officer makes an

investigation he should report the result to the officer in charge

of the police station. It is also clear that the final step in the

investigation, viz. the formation of the opinion as to

whether or not there is a case to place the accused on trial

is to be that of the officer in charge of the police station.

174

There is no provision permitting delegation thereof but only a

provision entitling superior officers to supervise or participate

under Section 551.”

(emphasis supplied)”

11. This Court in Dayal Singh

noted that the investigating

officer is obliged to act as per the Police Manual and known canons

of practice while being diligent, truthful and fair in his/her

approach and investigation. It has been noted in the reported

decision that an investigating officer is completely responsible and

answerable for the manner and methodology adopted in completing

his investigation

. Concededly, upon completion of investigation,

the investigating officer is obliged to submit report setting out

prescribed details, to the Magistrate empowered to take cognizance

of the offence referred to therein, without unnecessary delay. The

report so presented is the conclusion reached by the investigating

officer on the basis of materials collected during investigation. The

duty of the investigating officer is to collate every relevant

information/material during the investigation, which he must

believe to be the actual course of events and the true facts

supra at Footnote No. 57

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

Ahmed (supra at Footnote No. 93)

175

unraveling the commission of the alleged crime and the person

involved in committing the same. He is expected to examine the

materials from all angles. In the event, there is sufficient evidence

or reasonable ground that an offence appears to have been

committed and the person committing such offence has been

identified, the investigating officer is obliged to record his opinion in

that regard, as required by Section 173(2)(i)(d) of the Code. In other

words, if the investigating officer intends to send the accused for

trial, he is obliged to form a firm opinion not only about the

commission of offence, but also about the involvement of such

person in the commission of crime.

12. Such opinion is the culmination of the analysis of the materials

collected during the investigation - that there is “strong suspicion”

against the accused, which eventually will lead the concerned Court

to think that there is a ground for “presuming” that the accused

“has” committed the alleged offence; and not a case of mere

suspicion. For being a case of strong suspicion, there must exist

sufficient materials to corroborate the facts and circumstances of

the case; and be of such weight that it would facilitate the Court

concerned to take cognizance of the crime and eventually lead it to

176

think (form opinion) that there is ground “for presuming that the

accused has committed an offence”, as alleged – so as to frame a

charge against him in terms of Section 228(1) or 246(1) of the Code,

as the case may be. For taking cognizance of the crime or to frame

charges against the accused, the Court must analyze the report filed

by the investigating officer and all the materials appended thereto

and then form an independent prima facie opinion as to whether

there is 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 a ground for presuming that he has

committed an offence). The Magistrate in the process may have to

give due weightage to the opinion of the investigating officer. If such

is to be the eventual outcome of the final report presented by the

investigating officer, then there is nothing wrong if he applies the

same standard to form an opinion about the materials collected

during the investigation and articulate it in the report submitted

under Section 173 of the Code. It may be useful to refer to the

177

decisions adverted to in Afroz Mohd. Hasanfata

100

including in the

case of Ramesh Singh

101

and I.K. Nangia

102

13. After cogitating over the rival submissions, the foremost issue

that needs to be answered is about the remit of the SIT to investigate

the matter further and correspondingly that of the Magistrate, in the

peculiar facts of the present case. It is noticed that appellant had

filed a complaint dated 8.6.2006 by which time the FIR in respect of

the incident unfolded on 28.2.2002 in Gulberg Society including

involving the dastardly attack on the husband of the appellant and

others was already registered and proceeded further by the local

police as per the provisions of the Code. Contemporaneously, in the

proceedings filed before this Court including by the NHRC, the

grievance regarding improper investigation in respect of several

cases registered across the State of Gujarat in reference to the mass

violence during the relevant period including four crimes in respect

of Gulberg Society episode were being examined. During the same

time, appellant was pursuing her complaint dated 8.6.2006

addressed to the Director General of Police, Gujarat. As no response

100

supra at Footnote No. 31

101

supra at Footnote No. 41

102

supra at Footnote No. 42

178

was received, the appellant was advised to file application before the

High Court for issuing direction to the Gujarat police to register the

said complaint as FIR. That petition was finally dismissed by the

High Court on 2.11.2007, whereby appellant was relegated to file

appropriate private complaint and invoke Section 190 read with

Section 200 of the Code. This decision was assailed by filing SLP(C)

No. 1088/2008, which indisputably was heard (allowed to be heard

by the appellant without any demur) along with the petitions

pending before this Court including the petition filed by the NHRC.

14. The common order passed by this Court on 26.3.2008

103

leaves

no manner of doubt that the four crimes registered in respect of

Gulberg Society were to be investigated further by the SIT

constituted by this Court in terms of the same order. In respect of

the complaint submitted by appellant dated 8.6.2006, a specific

order came to be passed by this Court on 27.4.2009

104

, thereby

directing the SIT to look into the matter and take steps as required

by law and submit report to this Court within three months. Finally,

the SLP filed by the appellant and Ms. Teesta Setalvad was disposed

103

supra at Footnote Nos. 6 and 16

104

supra at Footnote Nos. 4 and 17

179

of on 12.9.2011

105

until which date, the SIT continued with the

investigation/enquiry into the stated complaint and submitted

appropriate report(s) to this Court. We must assume, and there

could be no other import or assumption, that this Court was all

throughout conscious of the fact that the four crimes registered

pertaining to the Gulberg Society including the gruesome killing of

husband of appellant and others, were already being investigated by

the SIT and proceeded for trial consequent to filing of the

chargesheet/supplementary chargesheet by the SIT. Concededly,

this Court by an express order, had permitted those trials to

continue further. In those trials, the allegations of criminal

conspiracy and the commission of crime pursuant to such criminal

conspiracy had already been put in issue. In that sense, the limited

aspect of the contents of the complaint dated 8.6.2006, which

remained to be dealt with was about the allegations of larger criminal

conspiracy at the highest level resulting into mass violence across

the State during the relevant period.

105

supra at Footnote No. 26

180

15. In other words, the steps taken by the SIT during the pendency

of proceedings before this Court and even after the disposal of the

SLP filed by the appellant on 12.9.2011

106

, were under the clear

directions and aegis of this Court. The tenor of directions issued by

this Court are ascribable to the plenary powers exercised under

Article 142 of the Constitution. In that, this Court consciously

allowed the (four) crimes registered concerning Gulberg Society

unfolded on 28.2.2002 to proceed for trial, including the charge of

criminal conspiracy for commission of such offence; and at the same

time, showed indulgence to the appellant by 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 by the SIT.

16. Notably, this Court consciously directed, vide order dated

7.2.2013

107

, to treat the statements recorded by the SIT in

connection with the investigation/enquiry concerning the complaint

of appellant as made under Section 161 of the Code; and to form

part of the report submitted by the SIT to the Court concerned,

106

supra at Footnote No. 26

107

see para 5(y) above

181

which had taken cognizance of Crime Report No. 67/2002

concerning Gulberg Society, in terms of order dated 12.9.2011

108

treating it as a police report under Section 173(2) of the Code. This

presupposes that the further investigation by the SIT was on the

assumption that the complaint dated 8.6.2006 may contain new

information/material other than already enquired into in connection

with Crime Report No. 67/2002 – as permissible under Section

173(8) of the Code. No more and no less.

17. All the aforestated circumstances and the judicial orders

passed by this Court from time to time on the petition filed by the

appellant would go to show that this Court had implicitly rejected

her prayer to register the stated complaint as an independent FIR or

for that matter, as an independent private complaint for being

proceeded further. The successive orders passed by this Court and

directions issued to SIT were only to look into the aspects that were

not part of the cases investigated by the SIT including the (four)

criminal cases concerning Gulberg Society - as the same were

already registered and proceeded for trial, in particular, criminal

108

supra at Footnote No. 26

182

conspiracy hatched in the commission of those crimes. Inasmuch

as, all other aspects already formed part of enquiry and

chargesheet/trial of those cases. Not only that, even the other eight

cases assigned to SIT by this Court covered similar matters

including allegations of criminal conspiracy. To put it differently,

what remained to be looked into was only about the “allegations of

larger conspiracy at the highest level” which resulted into causing

mass violence across the State during the relevant period.

18. It is well settled that conspiracy can be hatched at different

levels. Thus, the conspiracy hatched at the middle or lower level

in the concerned cases filed across the State, including the Gulberg

Society incident unfolded on 28.2.2002 involving the gruesome

killing of Mr. Ehsan Jafri (husband of the appellant) and others,

covering nine sets of cases assigned to the SIT by this Court already

covered the expanse of criminal conspiracy concerning those cases.

It was urged by the SIT that the trial Court in Gulberg trial had

disregarded the case of conspiracy even amongst the accused sent

for trial in that case and had opined that there was no pre-planned

intention to commit violence at the Gulberg Society. If so, it is

unfathomable that any larger conspiracy had been hatched at the

183

higher level, as alleged. In any case, the remit of the SIT in terms of

directions given by this Court in relation to the complaint filed by

appellant dated 8.6.2006 ought to be limited to the allegations of the

larger criminal conspiracy at the highest level, which allegedly

resulted in mass violence across the State during the relevant

period. In that backdrop, we may have 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

allegations exposited in the stated complaint. The SIT identified

broadly thirty allegations in the complaint which read thus: -

“8. The following is the summary of allegations narrated in the

complaint dated 08.06.2006 and the major evidence in brief in

support of the charges about commission of offences u/s 302

r/w 120-B IPC, Sections 193 r/w 114, 186 & 153-A, 186, 187

IPC, Section 6 of Commission of Inquiry Act, The Gujarat Police

Act and 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)

give vent to the Hindu anger on the minority muslims in the

wake of Godhra incident during the Meeting held on

27.02.2002 evening in Gandhinagar, as testified in Affidavit

No. 4 of R.B. Sreekumar.

(ii) CM's decision to bring dead bodies of those killed in Godhra

train fire in Ahmedabad and parade them in Ahmedabad City

109

supra at Footnote Nos. 4 and 17

184

as testified by Shri Ashok Narayan in his cross-examination

before the Nanavati Commission.

(iii) Numerous illegal instructions given verbally (by CM) to

officials as detailed in 3

affidavit dated 09.04.2005 by R.B.

Sreekumar to the Nanavati Commission.

(iv) Data in the 'Concerned Citizens Tribunal’ Report by panel

of Judges, Justice Sawant and Justice V.R. Krishna Iyer as in

para 10 of the complaint dated 08.06.2006 wherein it was

mentioned, inter alia, as : What transpired in the days that

followed the Godhra incident began with the Chief Minister of

the State announcing on 27.02.2002 through Akashvani Radio

that there was an ISI conspiracy, and deciding against the

advice of the Godhra Collector, Smt. Jayanti Ravi, to take

bodies of the burnt Kar sevaks in a ceremonial procession by

road to Ahmedabad. The tragic Godhra killings were used and

manipulated to justify pre-orchestrated mass carnage that

enjoyed the political sanction of the constitutionally elected

Government Top level meetings were held between the Chief

Minister, some of his Cabinet colleagues and top level

bureaucrats at which illegal instructions were issued to

perform illegal acts, Proof of this was documented by a Citizens

Tribunal constituted and headed by a former Judge of the

Hon'ble Supreme Court, when a former Minister (Late Shri

Haren Pandya) testified about the details.

(v) Cabinet Ministers I.K. Jadeja and Ashok Bhatt were

positioned in the DGP office and Ahmedabad City Police

Control Room respectively by CM. DGP Chakravarti was

critical of the Minister I.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 the

CM), in the thick of riots in 2002 despite DGP’s objection so as

to facilitate placement of those who were willing to subvert the

system for political and electoral benefits as narrated in para

67 of the complaint dated 08.06.2006, wherein instances of

punishment, ill treatment etc. are listed in respect of the

following officers: (1) Shri Rahul Sharma, IPS, (2) Shri Vivek

Shrivastava, IPS, (3) Shri Himanshu 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, even

while their conduct was under the scrutiny of Nanavati

185

Commission, as narrated in Para 68 of the complaint dated

08.06.2006, wherein "Rewards" for collaborating with the

illegal plans of CM/BJP during 2002 riots and afterwards are

listed in respect of the following officers: (1) Shri G. Subba Rao,

IAS, the then Chief Secretary, (2) Shri Ashok Narayan, IAS, the

then ACS (Home), (3) Dr. P. K. Mishra, IAS, the then PS to CM,

(4) Shri A. K. Bhargava, IPS, (5) Shri P. C. Pandey, IPS (6) Shri

Kuldeep Sharma, IPS, (7) Shri M. K. Tandon, IPS, (8) Shri

Deepak Swaroop, IPS, (9) Shri K. Nityanandam, IPS, (9) Shri

Rakesh Asthana, IPS; (10) Shri A.K. Sharma, IPS, (11) Shri

Shivanand Jha, 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 stance of the Administration. Copies of these

reports are appended in second Affidavit dated 06.10.2004 of

R.B. Sreekumar to the Nanavati Commission.

(ix) Indictment by the Hon'ble Supreme Court about injustice

done to minority community and riot victims in the

investigation of riot cases in respect of (1) Bilkis Bano case and

(2) Best Bakery case, as narrated in paras 13 and 14 of the

complaint dated 08.06.2006.

(x) Partisan investigations were conducted betraying prejudice

against riot victims, as indicated by Rahul Sharma, then SP,

Bhavnagar District during his cross-examination before the

Nanavati Commission, as noted in Para 18 of the complaint

dated 08.06.2006.

(xi) CM Shri Narendra Modi did not visit the riot affected areas

in the initial days, though he visited Godhra Railway Station

on 27.02.2002 itself.

(xii) A press statement was made by Shri Narendra Modi that

the reaction against the Muslim community was the operation

of Newton’s law of action.

(xiii) No direction was given by Shri Narendra Modi to Hindu

organizations 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 of

army, though anti-minority violence had broken out on

186

27.02.2002 afternoon itself in cities of Vadodara, Ahmedabad

etc.

(xv) Pro-VHP advocates were appointed as Public Prosecutors

in riot cases as noted in Para 4 under the caption 'Present

Situation' in the complaint dated 08.06.2006, wherein

appointments of advocates Shri Chetan Shah (as District

Government Pleader), Shri V.P. Atre (as Special PP in the

Gulberg case), Shri Raghuvir Pandya (as Special PP in the Best

Bakery case), Shri Dilip Trivedi (as Special PP in the

Sardarpura case), Shri Rajendra Darji (as Special PP in the

Dipda Darwaja case), Shri Piyush Gandhi (PP in Panchmahal

District), have been questioned.

(xvi) Officers at grass-root level were not transferred as per

State Intelligence Bureau’s recommendation till the arrival of

Shri K.P.S Gill as Advisor to CM, as indicated by Sreekumar in

his second affidavit dated 06.10.2004 to the Nanavati

Commission.

(xvii) Failure to take action against the print media making

communally inciting reports though State Intelligence Bureau

and some field officers had recommended for action, as noted

in the first Affidavit dated 06.07.2002 of R. B. Sreekumar

during his cross-examination before the Nanavati-Shah

Commission on 31.08.2004.

(xviii) State Home Department gave misleading reports about

normalcy in the State to Central Election commission for

ensuring early Assembly Elections. The assessment of the

Home Department was adjudged as false by the Election

Commission in its order dated 16-08-2002. As per the Register

for recording verbal instructions from higher formations kept

by ADGP (Shri R.B. Sreekumar), as noted in his third Affidavit,

he was directed by the Home Department officials to give

favourable reports about law and order for facilitating holding

of early elections.

(xix) The State Home Secretary Shri G.C. Murmu was

presumably detailed for tutoring, cajoling and even

intimidating officials deposing before the Nanavati

Commission so that they do not tell the truth and harm the

interests of CM and ruling party, as narrated in third Affidavit

of Shri R.B. Sreekumar.

187

(xx) Shri G.C. Murmu's exercise was for ensuring that officials

will not file affidavits relating to the second terms of reference

to the Nanavati Commission about the role of CM and other

Ministers in the riots as narrated in Para 52 of the complaint

dated 08.06.2006 wherein gross dereliction of duty has been

alleged in not filing Affidavits relating to second terms of

reference to the Commission on the part of 16 specifically

named officials including top ranking IAS/IPS officers.

(xxi) No action was initiated against senior police officers by the

Home Department for their grave dereliction of duty in

supervision of 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,

the then Superintendent of Police, Dahod District for his

misconduct despite recommendation by CBI who investigated

the Bilkis Bano case as per the direction of Hon’ble Supreme

Court.

(xxiii) The CD regarding telephone calls by BJP leaders and

police officers during riots was not probed into by the

Investigating Officers of the Naroda Patia and Gulberg Society

cases. The CD was produced by Rahul Sharma, SP, CBI before

the Nanavati Commission.

(xxiv) Conducive situation was not created for rehabilitation of

riot victims, though a contrary claim is made by the State

Administration in its report to NHRC. Instead, the riot victims

were pressurized for compromising with the perpetrators of

violence, as a condition precedent for their safe return as

rehabilitation.

(xxv) Police inaction facilitated riots as part of conspiracy, as

detailed in paras 13, 14, 61 and 62 of the complaint dated

08.06.2006. In Para 13 of the complaint, some of the 'glaring

examples of State sponsored events' are given. In para 61 of

the complaint, it is alleged that over two dozen survivors of the

Naroda Patiya massacre case have confirmed that they made

over a hundred distress calls to Shri P.C. Pande, then

Commissioner of Police but that his mobile was permanently

switched off. There was a similar callous response from most

of the DCPs and Addl. CPs (of Ahmedabad City) as also by Shri

Tuteja, the then Commissioner of Police, Baroda. In para 60 of

the complaint, telephone calls made from Gulberg Society to

Shri P.C. Pande and the DGP are alleged but no police action

188

despite presence of three mobile vans near the spot. It is also

alleged in Para 61 of the complaint that police was aiding mobs

who were attacking Muslims and that on 28

February, of the

40 persons shot dead by police in Ahmedabad City, 36 were

Muslims. In Para 62 of the complaint, it is alleged that police

acted as mute spectators to acts of lawlessness, offences, were

not investigated properly, real culprits were not arrested and

no timely preventive action was taken etc.

(xxvi) No minutes of the meetings held by CM and senior

bureaucrats were maintained and instructions were mostly

conveyed through phone which served the twin objective of (i)

field officers carrying out the conspiracy of pogrom against the

minorities and (2) avoidance of the subsequent monitoring of

actions by jurisdictional officers.

(xxvii) No action was taken against officers like K.

Chakravarthi, then DGP, P.C. Pandey, then Commissioner of

Police, Ahmedabad City, Ashok Narayan, then Additional Chief

Secretary and a large number of senior functionaries in

Government who filed incomplete, inaccurate, vague and

inadequate affidavits to the Nanavati Commission, as narrated

in Paras 54, 55, 56 of the complaint dated 08.06.2006.

(xxviii) Slack review of post riot cases as ordered by the Hon’ble

Supreme Court in 2004. This was achieved by entrusting this

work to those senior officers who are willing to act according to

political interests of BJP and CM, as narrated in Para 84 of the

complaint dated 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 were

predominantly of the Muslim community, will establish that

rioters, the administration, cohorts of the ruling party (BJP)

were moving in collaboration for achieving the satanic

objectives of CM. Statistics in this regard are given in the

second Affidavit dated 06.10.2004 (Para 3/Appendix V) of

Sreekumar to the Nanavati Commission.”

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

“ALLEGATION NO. XXXI:

189

That a secret meeting was held late in the evening of 27-02-

2002 in Lunawada village of Sabarkantha District and that a

telephone call was made between 3 pm & 6 pm from the house

of one Dr. Yogesh Ramanlal Pandya from Godhra to Dr. Anil

Patel (a member of Gujarat Doctor's Cell of BJP) intimating him

about the meeting. Further, another call was also made to Dr.

Chandrakant Pandya (from Kalol), Chairman, Police Housing

Corporation. Shri Ashok Bhatt, state Health Minister, who was

then sitting in the Godhra Collectorate was also intimated

about the meeting. Shri Prabhatsinh Chauhan, the then

Transport Minister, who hails from Panchmahal was

reportedly also called to attend and one Shri A.P. Pandya was

also present in the meeting. It is further alleged that the phone

calls were made to invite 50 top people of BJP/RSS/BD/VHP

and the plan was to assemble at someone's house in Lunawada

(Sabarkantha District). It is also alleged that 50 top people met

at this undisclosed destination and detailed plans were made

on the use of kerosene, patrol for arson and other methods of

killing, but the State IB did not or could not track such meeting

and preparations for the gruesome violence that was to follow.

ALLEGATION NO. XXXII:

A meeting was held by Shri Kalubhai Hirabhai Maliwad at

village Borwai near Pandawada on 28-02-2002. This meeting

earlier scheduled to be held at the house of one Shri Shankar

Master but due to large crowd, it was held at Baliyadev Mandir.

It is alleged that around 5000-6000 activists of Bajrang Dal

including Shri Kalubhai Maliwad, Somabhai Rumalbhai of

Kaliakuvawala, Jignesh Pandya, Prakashbhai of Borwai

village, Amrutbhai Manilal Panchal, Anil Modi, Sarpanch,

Sanjay Ishwarbhai Panchal, Vijay Damor, Khema Kalu and

Damor Somabhai besides others were present in the meeting

held to plan the attacks on the minorities in the surrounding

areas. Smt. Teesta Setalvad has stated that this information

was given to her by her sources namely Shri Mehboob Rasul

Chauhan of Lunawada and Shri Nasirbhai Kalubhai Sheikh of

Pandarwada.”

20. The SIT then analyzed the materials collated during the

investigation allegation-wise, offender-wise, witness-wise and in

190

reference to the observations of the learned Amicus Curiae – Mr. Raju

Ramachandran, to record its opinion in the final report (consisting

of closely printed/typed 270 pages in its Volume-I, filed as Annexure

P-17 at 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 conducted an

inquiry into the complaint made by Smt. Jakia Nasim as per the

orders of the Hon’ble Supreme Court of India passed on 27.04.2009.

In compliance to the said order a report was submitted by 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, Ahmedabad City. Further investigation

in the matter was conducted by the undersigned (Shri Himanshu

Shukla, DCP; Crime Branch, Ahmedabad City) under the

supervision of Shri Y.C. Modi, Addl. DG & Member, SIT and a report

in the matter was submitted to the Hon'ble Supreme Court on

17.11.2010. Both the aforesaid reports were given to Shri Raju

Ramchandran, Sr. Advocate, who had been appointed as Amicus

Curiae in the matter by the Hon'ble Supreme Court of lndia. The

Amicus Curiae submitted his Interim Report in the matter to the

Hon'ble Supreme Court of India on 20.01.2011, vide which he

suggested further investigation in respect of some of the issues.

In compliance to the order passed by the Hon'ble Supreme Court of

India on 15.03.2011, to conduct further investigation into the matter

u/s 173 (8) Cr. PC, Shri Himanshu Shukla, DCP, Crime Branch

carried out further investigation 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 and another

report was submitted to the Hon’ble Supreme Court of India on

25.04.2011. The Hon’ble Supreme Court of India handed over the

said report to the Ld. Amicus Curiae for his examination and

independent opinion.

The Ld. Amicus Curiae accordingly examined the SIT

reports and also interacted with some of the witnesses including

the police officers and submitted his report to the Hon'ble

191

Supreme Court of India on 25.07.2011. The Hon'ble Supreme

Court of India after careful consideration of the matter passed an

order on 12.09.2011, directed the Chairman, SIT to forward a Final

Report along with the entire material collected by the SIT to the

Court which had taken cognisance of FIR of I CRNo. 67/2002 of

Meghaninagar P.S., as required u/s 173(2) Cr.PC of the Court.

It may be mentioned here that the Ld. Amicus Curiae has

agreed with the various recommendations made by the SIT on

the different issues inquired into/investigated by the SIT.

However, the Ld. Amicus Curiae is of the view that at this prima

facie stage offences u/s 153A(1)(a)&(b), 153B(1)(c), 166 and

505(2) IPC are made out against Shri Narendra Modi regarding

the statement made by him in the meeting on 27.02.2002. In

this connection, as discussed, above SIT is of the view that the

offences under the aforesaid sections of law are not made out

against Shri Narendra Modi.

In the light of the aforesaid facts, a closure report is being

submitted for favour of perusal and orders.

(Himanshu Shukla)

DCP &I0, SIT

Gandhinagar”

(emphasis supplied)

Be it noted that even the learned Amicus Curiae had broadly agreed

with the recommendations made by the SIT in the final report, but

had opined that at prima facie stage offences under Sections

153A(1)(a) & (b), 153B(1)(c), 166 and 505(2) of the IPC have been

made out against the then Chief Minister.

21. This final report dated 8.2.2012 was taken exception to by the

appellant by filing protest petition before the Magistrate on

15.4.2013 raising diverse grounds including adverted to in

paragraph 6(c) above.

192

22. In dealing with the protest petition, the Magistrate in the facts

of the present case, could have and was obliged to examine the

challenge only in the context of the scope for investigation of

allegations referred to in the complaint dated 8.6.2006 including the

other materials collected during the investigation by the SIT

concerning the larger criminal conspiracy at the highest level,

resulting into mass violence across the State. This is reinforced from

the observation made by this Court in order dated 7.2.2013

110

wherein it has been clearly mentioned that the statements recorded

in the enquiry undertaken by the SIT pursuant to the directions of

this Court shall only be used in the proceedings relating to the

complaint dated 8.6.2006 and shall not be used for any other

purpose or in connection with any other case. This clarification also

applied to the criminal case being Crime report No. 67/2002

pertaining to the incident in Gulberg Society, trial whereof was at an

advanced stage (and soon disposed of on 26.12.2013).

23. As regards that trial, all information regarding the charge of

criminal conspiracy was collated during the investigation by SIT in

110

see para 5(y) above

193

terms of order dated 26.3.2008

111

including from persons who

wanted to make statement before the SIT for giving versions of the

alleged crimes being investigated and to be tried in terms of the said

order. It has been further clarified in the order dated 7.2.2013

112

this Court that the present order is confined to the facts and

circumstances of the complaint dated 8.6.2006 and shall not be

treated as a precedent, “in any other case”. These observations are

clear pointer to the sui generis approach of this Court in the present

case being fully aware that no FIR had been registered at the

instance of appellant on the basis of the complaint dated 8.6.2006;

nor the trial in connection with CR No. 67/2002 concerning Gulberg

Society had been stayed pending investigation into the stated

complaint. Indisputably, the directions and clarifications given by

this Court from time to time in the present case have not been put

in issue nor any grievance had been set forth from any quarter at

any stage. Resultantly, the ordinary course to be adopted by the

Magistrate under the Code in other cases cannot be invoked in the

present case. In that sense, the enquiry by the Magistrate should

111

supra at Footnote Nos. 6 and 16

112

see para 5(y) above

194

also have confined itself to the limited aspect of allegations regarding

larger criminal conspiracy at the highest level, referred to in the

complaint dated 8.6.2006, resulting in causing of mass violence

across the State.

24. Coming back to the allegations regarding larger conspiracy at

the highest level, it is founded on the alleged utterances made by the

then Chief Minister in an official meeting while addressing the DGP,

the then Chief Secretary and other senior officials of the State to

allow to vent to the Hindu anger on the minority in the wake of

Godhra incident. This is in reference to the meeting held on

27.2.2002 evening in Gandhinagar, as testified in the affidavit of Mr.

R.B. Sreekumar. To the same end, the report by a private panel of

former Judges of this Court titled “Concerned Citizens Tribunal” has

been relied. This report refers to the testimony of late Mr. Haren

Pandya, former Minister given before the former Judges of this

Court. Additionally, the testimony of Mr. Sanjiv Bhatt, who claims

to have attended the meeting convened by the then Chief Minister

on 27.2.2002 has been relied.

195

25. This is the core basis on which the complaint of the appellant

proceeds to allege larger criminal conspiracy at the highest level.

These allegations have been duly enquired into by the SIT. The SIT

considered the relevant materials while examining allegations (i) and

(iv), inter alia, in its report

113

, to conclude that the claim of concerned

persons is false and figment of imagination. For that, the SIT had

recorded statements of all those officials who were present in the

said meeting. They stated in one voice that Mr. Sanjiv Bhatt was not

present in the review meeting convened under the Chairmanship of

the then Chief Minister. The SIT had also collected relevant

documentary evidence to establish the falsity of the claim of Mr.

Sanjiv Bhatt of being present in that meeting.

26. It is, thus, not a case of one version against the other, but of

false claim set up by Mr. Sanjiv Bhatt of being personally present in

the stated meeting. Therefore, the SIT after thorough investigation

has recorded its opinion that neither Mr. Sanjiv Bhatt nor Mr. Haren

Pandya was present in the stated meeting. Similarly, even Mr. R.B.

Sreekumar had no personal knowledge as he did not attend the said

113

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

196

meeting. Besides, Mr. R.B. Sreekumar was a disgruntled officer.

The relevant extract of the said final report

114

reads thus:-

“…..On his return, he called for a Law & Order meeting

at his residence at about 2300 hrs, which was attended by

Smt. Swarna Kanta Varma, Acting Chief Secretary, Shri

Ashok Narayan, ACS (Home), Shri K. Chakravarthi, DGP,

Shri P.C. Pande, CP, Ahmedabad City, Shri K.

Nityanandam, Secretary, Home Department, Dr. P.K.

Mishra, Principal Secretary to CM, Shri Anil Mukim,

Secretary to CM and Shri 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 the instance of DGP.

No Cabinet Minister was present in the said meeting. Shri

Gordhan Zadafia, MOS (Home) also did not attend the

meeting, as he had stayed back at Godhra. Shri Sanjiv

Bhatt, the then Deputy Commissioner of Intelligence

(Security) has claimed after more than seven years, to

have attended the said meeting at the instance of the

then DGP……”

(emphasis supplied)

The 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

to Chief Minister, Mr. Chakravarthi, the then DGP, Mr. P.C. Pande,

the then Commissioner of Police, Ahmedabad City, Mr. Anil Mukim,

the then Additional PS to Chief Minister, Mr. K. Nityanandam, the

then Secretary (Home), Mr. Prakash S. Shah, the then Additional

114

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

197

Secretary (Law and Order), Mr. R.B. Sreekumar, the then Additional

DGP] and after analyzing the same, opined that all the officials who

were present in the stated meeting had said in one voice that Mr.

Sanjiv Bhatt, the then DCI (Security) was not present in that

meeting.

27. The SIT then analyzed the claim of Mr. Sanjiv Bhatt that he

was present in the meeting by referring to official records including

the call records of his mobile phone No. 9825049398 to conclude

that he had set up a false plea of being present in the stated meeting.

The SIT has adverted to the materials collected during investigation

clearly reflecting on the conduct of Mr. Sanjiv Bhatt including his

false claim of being present in the stated meeting. The final report

has analyzed these aspects in detail

115

28. The final report then proceeds to advert to the interview given

by Mr. R.B. Sreekumar to a news channel on 22.4.2011 and the

details of the call records of Mr. Sanjiv Bhatt for the relevant period

and noted thus

116

: -

“…..Shri R. B. Sreekumar formerly ADGP

Intelligence, in his interview to the Star Hindi News

115

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

116

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

198

Channel at 12.35 hrs on 22.04.2011 has stated that Shri

Sanjiv Bhatt, DCI (Security) had never informed him

about having attended a meeting at CM's residence on

27.02.2002. He has further stated that at that time of

filing an affidavit before Nanavati Shah Inquiry

Commission, he had asked all the officers of State IB to

provide him with the relevant information and

documents in respect of Godhra riots but Shri Sanjiv

Bhatt did not give him any information about the said

meeting. According to Shri Sreekumar, Shri Sanjiv Bhatt

was handling security portfolio and communal portfolio was

being looked after by another officer. Shri Sreekumar has

also stated in the interview that it was a normal procedure

that if a junior officer had attended a meeting on behalf of

senior, he was required to submit a report to his superior and

that Shri G.C. Raiger, the then ADGP (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. 9825049398 allotted to Shri Sanjiv Bhatt show that

on 27-02-2002, Shri Sanjiv Bhatt remained at

Ahmedabad till about 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 1057 hrs and then returned

to Ahmedabad 2056 hrs. The claim of Shri Sanjiv Bhatt

that he had attended a meeting at CM's residence on 28-

02-2002, at 1030 hrs is therefore proved to be false and

incorrect. CM's residence is at Gandhinagar, more than 25

KMs from Ahmedabad, and normally takes 30 to 45 minutes

to reach there. His further claim that he had seen Late Ashok

Bhatt and Shri I.K. Jadeja, the then Ministers in the DGPs

office at about 1100 hrs on 28-02-2002, is also belied from

the call detail records in as much as the location of the mobile

phone of Shri Sanjiv Bhatt was at Prerna Tower, Vastrapur-

1, Ahmedabad, which happened to be at a distance of 1.5

Kms. approximately from his residence and Shri Bhatt could

not have reached Police Bhavan, 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 attended any meeting

at CM's residence at about 1030 hrs on 28-02-2002.

199

Shri Ashok Narayan, the then ACS (Home) has stated

that a meeting was held by the Chief Minister in the morning

of 28-02-2002, which was attended by acting Chief Secretary,

DGP Addl. DG (Int.) and the matter relating to the calling of

Army was also discussed, but no decision was taken and it

was decided to watch the situation. He has categorically

denied that Late Ashok Bhatt and Shri I.K. Jadeja, Ministers

had attended the said meeting. The claim of Shri Sanjiv

Bhatt that he had attended the said meeting at 1030 hrs

at CM's residence is proved to be false from the location

of his mobile phone, which was at Prerna Tower,

Vastrapur-I, Ahmedabad City at 10:57:43 hrs. Moreover,

his contention that the aforesaid two Ministers were

present in the said meeting is proved to be false from the

statement of Shri Ashok Narayan, the then ACS (Home),

categorically stated that they were not present in the

said meeting. His subsequent conduct of getting his

statement corroborated by way of introduction of two

police personnel would also go to show that he is trying

to introduce himself into the meeting. As regards the

alleged utterance made by the Chief Minister in the meeting

called on 27-02-2002 night at his residence, 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 Chief Minister had

allegedly said in the meeting that ''KOMI HULLADO MA TAME

POLICE BARABARI KAROCHO. TAME BE HINDU NE PAKDO

TO TAME BE MUSALMANO NE PAN PAKDO CHO. HA VE ME

NAHI CHALE. HINDUONO GUSSO UTTARWA DO." (In

communal riots police takes action against Hindus and

Muslims on one to one basis. This will not do now-allow

Hindus to give vent to their anger). Shri Chakravarthi has

denied that he held any such talks with Shri R.B.

Sreekumar. Even otherwise, the version of Shri R.B.

Sreekumar becomes hearsay and inadmissible in view of

denial of Shri K. Chakravarti……”

(emphasis supplied)

200

29. Again, at pages 255-257

117

, the SIT has analyzed the materials

collected during investigation indicative of the falsity of claim set up

by Mr. Sanjiv Bhatt and noted thus: -

“….. However, on the other hand Shri Sanjiv Bhatt, who insists

that he was in the said meeting, has stated “that the Chief

Minister had said that for too long the Gujarat Police had been

following the principle of balancing the actions against the

Hindus and Muslims while dealing with the communal riots in

Gujarat. This time the situation warranted that the Muslims

be taught with the communal riots in Gujarat. This time the

situation warranted that the Muslims be taught a lesson to

ensure that such incidents do not recur ever again. The Chief

Minister Shri Narendra Modi expressed the view that the

emotions were running very high amongst the Hindus and it

was imperative that they be allowed to vent out their anger.”

Assuming for the time being that the Chief Minister did make

some utterances, there is a material difference between the two

versions in as much as Shri Sanjiv Bhatt has tried to improve

his version by way of addition that this time the situation

warranted, that the Muslims be taught a lesson to ensure that

such incidents do not recur every again. Since the version of

Shri R.B. Sreekumar is on hearsay basis and the testimony

of Shri Sanjiv Bhat does not have any corroboration, no

reliance can be placed on either of them.

Shri Sanjiv Bhatt has not been able to give any

satisfactory explanation that when he was in possession of

plethora of information and was an eyewitnesses to some

of the important events, then why did he not file an

affidavit before Nanavati Commission and also did not

appear as witness in response to the Govt. circular before

any legal authority. He does not explain as to why he did

not respond to a public notice issued by SIT on 11-04-

2008. His silence for a period of more than nine years

without any proper explanation appears to be callous and

gives an impression that he is trying to manipulate the

things to his personal advantage to settle his service

matters.

During the course of further investigation a complaint was

received from Shri Dharmesh P. Shukla, an accused in CR

117

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

201

No.67/2002 of Meghaninagar P.S. (Gulberg Society case), who

is facing trial, in which he contended that there was no

justification to record the statement of Shri Sanjiv Bhatt on

account of the following reasons:-

i. Shri Sanjiv Bhatt, IPS is known to be a police officer

with a dubious character facing several criminal cases of

serious nature and wherever he wants a favour from the

Govt. he creates a situation whereby the Govt. is

compelled to help him.

ii. Shri Sanjiv Bhatt, who had not even whispered

about any such meeting in the past contemporaneously,

surprisingly came out with a new theory that he was a

part of the meeting.

iii. That a sudden taking up a position by Shri Sanjiv

Bhatt after nine years of silence and his insistence to

record his statement only after an offence is registered, is

at the behest of some vested interest.

iv. It is a matter known to almost everyone in Gujarat

that Shri Sanjiv Bhat is known to be an officer pressuring

everyone to get illegal favour.

Since the allegations leveled by the complaint were

serious, a communication was sent to the Govt. to make

available the details of all complaints/pending

inquiries/prosecutions /departmental proceedings etc.

against Shri Sanjiv Bhat. A detailed reply has been received

from the Govt. of Gujarat, which shows that Shri Sanjiv

Bhatt has faced a number of departmental inquiries and he

was granted three promotions of Junior Administrative

Grade, Selection Grade and DIG Grade on one day i.e. 21-

09-2007, after dropping of three departmental inquiries

pending against him vide orders dated 06-08-2005, 03-09-

2005 & 24-07-2006. Shri Sanjiv Bhat, who is eligible for

the IGP grade has not been promoted because of the

departmental inquiries and criminal cases pending against

him. A chargesheet served upon him on 29-12-2010, for

irregularities in police recruitment under his

Chairmanship as SP, Banaskantha is still pending.

While handling a law and order situation during his

posting as ASP Jamnagar in the year 1990, Shri Sanjiv

Bhatt committed atrocities on peaceful and innocent

villagers belonging to a particular community at a place

called Jam Jodhpur. In the beatings by police one person

202

was killed. The victims included a pregnant woman, two

assistant engineers of irrigation department and one circle

officer of Revenue Department. Shri Bhatt applied

provisions of draconian law TADA against the innocent

persons and arrested 140 individuals under this Act. Due

to public pressure, the Government got an inquiry

conducted by a retired Judicial Officer into the incident

and Shri Bhatt was found guilty of (a) misuse of TADA (b)

police atrocities and (c) unnecessary imposition of curfew

for 70 hrs leading to hardship and harassment to the

people.

The Criminal case of death of a person due to police

atrocities in the incident was investigated by State CID

(Crime) against Shri Sanjiv Bhatt and others. After

completion of investigation, the IO sought prosecution

sanction from the Government u/s 197 Cr.PC, which was

declined and therefore, a closure report was filed in the

competent court. However, the Court rejected the closure

report on 20-12-1995 and took the cognizance. The State

Government filed a Criminal Revision Application in the

Sessions Court, which was rejected.

The case u/s 302, 323, 506(1), 114 of IPC has now

been committed to Sessions Court, Jamnagar and is

presently with the Fast Track Court Khambhalia for

framing of charges against Shri Sanjiv Bhatt and others.

Significantly, Gujarat High Court awarded a

compensation of Rs.1,50,000/- to the victim who had died due

to police atrocities in the above case.

Another criminal complaint was filed against Shri

Sanjiv Bhatt, while he was posted at SP, Banaskantha

District in 1996 by Shri Sumersingh Rajpurohit, an

Advocate practicing at Pali, Rajasthan and a criminal case

was registered against Shri Sanjiv Bhatt & others vide FIR

No.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 NDPS

Act. On completion of the investigation, the chargesheet

was 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 of Spl. Judge, NDPS Act, Jodhpur, Rajasthan.

The allegations in brief are that the complainant Advocate was

occupying a property as a tenant in Pali (Rajasthan), which was

owned by a lady, who happened to be a sister of Shri R.R. Jain,

203

a sitting Judge of Gujarat High Court. As per the said

criminal complaint Shri Sanjiv Bhatt and his subordinate

police officers allegedly planted 1 1/2 kg of Narcotic drug

in one room in a hotel at Palanpur, Gujarat, which was

shown as occupied by the said complainant, though he was

a Pali (Rajasthan) at that time. The said Advocate was

abducted at midnight on the instructions of Shri Sanjiv

Bhatt by his subordinate police officers of Gujarat police,

who went from Palanpur, Gujarat to Pali (Rajasthan) to

abduct him. The said Advocate was brought to Palanpur,

Gujarat and pressurized by Shri Sanjiv Bhatt and his

subordinate police officers to vacate the said property by

showing him arrested under NDPS offence. The said

Advocate, while in the custody of Gujarat Police and due

to police torture, vacated the property and physical

possession of the property was handed over to the sister of

Shri R.R. Jain, Judge of Gujarat High Court. Shri Sanjiv

Bhatt and his subordinate police officers, thereafter released

Shri Sumersingh Rajpurohit on 08-05-1996, by filing a report

u/s 169 Cr.PC, in which it was mentioned that Shri

Sumersingh could not be identified in the Test Identification

Parade. Quashing Petitions were filed in this matter by the

accused persons in Rajasthan and Gujarat High Court, but the

same had been dismissed. The matter is now pending before

the Hon’ble Supreme Court of India.

Significantly, Gujarat Vigilance Commission

recommended twice on 15-07-2002 and 19-10-2006 that Shri

Sanjiv Bhatt should be placed under suspension for his

professional misconducts, but the Govt. of Gujarat did not do

so.

In the meantime, on the complaint of Shri Sidheshwar

Puri, Secretary, Bar Association, Pali (Rajasthan), National

Human Rights Commission taking a very serious view of this

false case under NDPS Act vide its order dated 15-09-2010

asked Govt. of Gujarat to pay a sum of Rs. one lakh as

monetary relief to Shri Sumersingh, Advocate, Pali.

In view of the aforesaid position, it can be inferred

that Shri Sanjiv Bhatt is facing a lot of problems in service

matters and has got an axe to grind against the Govt. of

Gujarat and, therefore, his evidence is ill motivated and

cannot be relied upon……”

(emphasis supplied)

204

Additionally, it may be apposite to reckon the adverse comments

noted by this Court

118

against Mr. Sanjiv Rajendra Bhatt about his

general conduct while deciding writ petition filed by him for transfer

of investigation of a major crime registered against him at

Ahmedabad in 2011 being I-CR No. 149/2011.

30. While dealing with the testimony of late Mr. Haren Pandya

before the Concerned Citizens Tribunal and of Mr. R.B. Sreekumar,

the SIT opined thus

119

: -

“….. As regards the deposition of Late Haren Pandya

before the Concerned Citizens Tribunal, further investigation

has established that the meeting convened at CM’s residence,

was an essentially law and order review meeting that was held

on 27-02-2002 and that none of the Cabinet Minister attended

the same. Late Haren Pandya was not even a Cabinet

Minister at that time and was holding the portfolio of

Minister of State for Revenue. Shri Gordhan Zadafia also

did not attend this meeting, as he had stayed back at

Godhra. In view of the version of all the senior officials of

the Home and Police Department the alleged testimony of

Late Haren Pandya before the Tribunal cannot inspire

confidence.

As regards the entries made by Shri R.B. Sreekumar at

page 21 on l2-06-2002, in a register unauthorisedly

maintained by him that the call details of the mobile phone of

Late Haren Pandya were handed over to Shri P.K. Mishra, the

then Principal Secretary to CM through Shri O.P. Mathur in

his office, the same appears to be doubtful as Shri Mathur has

denied to have handed over any such call details to Dr. P.K.

Mishra in his office and that Principal Secretary to CM never

visited the office of the State IB, as stated in the said entry

made in the register. Moreover, Shri S.M. Pathak, the then Dy.

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 Convenience Compilation of respondent No. 2

205

SP, State IB has confirmed to have conducted secret inquiry

about one of the Ministers who had met a Forum of which

Justice Krishna Iyer, retired Judge of Supreme Court and some

others were the member, who had come to Ahmedabad to

enquire into the riots in the State. Shri Pathak has also

confirmed to have conducted secret inquiries, which

revealed that Late Haren Pandya had met and deposed

before them and that this 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 phone details of Late Haren Pandya or not,

which again creates a doubt about the entry made by Shri

R.B. Sreekumar in his register. Shri P.K. Mishra, the then

Principal Secretary to CM has stated that he does not

recollect, as to whether he asked Shri R.B. Sreekumar to

collect the mobile call records of Late Haren Pandya and

that, no phone call details were made available to him by

either Shri Sreekumar or Shri O.P. Mathur. The said call

details are not available now. No disclosure was made by

Shri R.B. Sreekumar about the said register in his

deposition before the Commission on 31-08-2004 or in any

of the two affidavits filed by him on 15-07-2002 & 06-10-

2004. It is rather surprising that this register saw the light

of the day for the first time in the year 2005, when Shri

R.B. Sreekumar filed a copy of the same along with his

third affidavit filed before the Nanavati-Shah Commission

of Inquiry on 09-04-2005. It may be mentioned 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 by Shri R.B.

Sreekumar cannot be considered to be an authenticated

document, therefore, the entries made by him in his said

Further investigation revealed that Govt. mobile no.

9825039852 was allotted to Late Haren Pandya. The call

detail records of the said mobile phone for 27-02-2002

have been sorted out and the same show that Late Haren

Pandya remained at Ahmedabad City till 10:46:55 on 27-

02-2002. His location at Ahmedabad City again comes at

16:24:24 hrs. and thereafter he remained at Ahmedabad City

till 22:52:07 hrs on 27-02-2002 and therefore, this would

conclusively establish that Late Haren Pandya did not

attend the law & order review meeting that took place at

CM's residence at Gandhinagar on 27-02-2002 at about

2300 hrs.

206

In view of the aforesaid position, it appears that Late

Haren Pandya had misled the Hon'ble Members of

Concerned Citizen Forum namely Mr. Justice (Retd.) P.B.

Sawant and Mr. Justice (Retd.) Hosbet Suresh that he was

present in the meeting called by the Chief Minister at his

residence on the night of 27-02-2002 with a view to

increase his credibility. It has been established beyond

doubt that Late Haren Pandya could not have been present

in the said meeting and that the so called evidence given

by him was only on hearsay basis. Since the statement

made by Late Haren Pandya is based on hearsay basis, it

deserves to be discarded as it is not admissible under any

provisions of law.

Shri Narendra Modi has denied during SIT examination

having stated in the said meeting that in communal riots police

takes action against Hindus and Muslims on one to one basis

and this will not do now, but allow Hindus to give vent to their

anger. On the contrary, he claimed to have given categorical

and clear cut instructions to maintain peace and communal

harmony at any cost. He has further stated during

examination by SIT that a similar appeal had earlier been made

to the people at Godhra through media.

It has, therefore, been established that a meeting did

take place at CM's residence at about 2230 hrs. on 27-02-

2002, which was attended to by Smt. Swarna Kanta Verma,

the then Chief Secretary (Shri G. Subha Rao, the then

Acting Chief Secretary had gone abroad on 22-02-2002),

Shri Ashok Narayan, the then ACS (Home), Shri K.

Chakravarthi, the then DGP, Shri P.C. Pande, the then CP,

Ahmedabad City, Shri K. Nityanandam, the then Secretary,

Home Department, Dr. P. K. Mishra, the then Principal

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 attend the said

meeting. It has also been established that Shri A.K.

Sharma, the then Secretary to CM was on earned leave

between 19-02-2002 to 05-03-2002 in connection with his

sister's marriage and was not present in the said meeting.

None of the senior officers, who had attended the said

meeting, have confirmed the alleged utterances made by

Shri Narendra Modi, Chief Minister. The statement made

by Shri R. B. Sreekumar is hearsay, which has not been

207

confirmed by Shri. K. Chakravarthi. Shri R. B. Sreekumar

has no personal knowledge as he did not attend the said

meeting. The participation of Shri Sanjiv Bhatt has not

been confirmed by any of the participants of the said

meeting or any other source. The very fact that he broke

his silence after period of nine years makes his deposition

suspicious and motivated and therefore, cannot be relied

upon. As regards the deposition of Late Haren Pandya

before the Concerned Citizens Tribunal, enquiries have

established that the meeting convened at CM's residence,

was an essentially law and order situation review meeting

that was held on 27-02-2002 and that none of the Cabinet

Ministers attended the same. Late Haren Pandya was not

even a Cabinet Minister at that time. Shri Gordhan Zadafia

also did not attend this meeting, as he had stayed back at

Godhra. In view of the version of all the senior officials of

the Home and Police Department the testimony of Late

Haren Pandya before the Tribunal becomes unreliable.

Moreover, the call records of the mobile phone of Shri

Pandya show that he was at Ahmedabad till 22:52:07 hrs

on 27.02.2002, and therefore, he could not have

participated in the said meeting at CM’s residence at

Gandhinagar. No minutes of the 27-02-2002 meeting were

prepared.

In the light of the aforesaid discussions, it can be

concluded that a Law & Order review meeting was in fact

held by Shri Narendra Modi, Chief Minister at his residence

late in the evening of 27-02-2002. However, the allegation

that the Chief Minister instructed the Chief Secretary,

DGP and other senior officials to allow the Hindu

community to give vent to their anger on the minority

Muslims in the wake of Godhra incident is not

established…...”

(emphasis supplied)

Thus, the SIT could not have reckoned the version of Mr. Haren

Pandya, who was not present in the meeting when the alleged

utterances came to be made by the then Chief Minister. Such a

claim made by Mr. Haren Pandya is found to be false.

208

31. As in the case of allegations (i) and (iv), the SIT then proceeded

to exhaustively deal with the materials collected during the

investigation allegation-wise including the two allegations [Nos.

(xxxi) and (xxxii)] culled out by the SIT. The final report has then

dealt with the materials offender-wise

120

. While dealing with the

allegations against the then Chief Minister concerning the illegal

instructions given during the meeting on 27.2.2002 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,

in which allegedly illegal instructions were given by Chief

Minister to the administrative and police officials. It has come

to light that an emergency law & order review meeting to take

stock of the situation was called by Chief Minister at his

residence at about 2230 hrs. after his visit to Godhra. It has

come in evidence that the meeting lasted for half an hour

or so and was attended by Smt. Swarna Kanta Varma, the

then acting Chief Secretary, Shri Ashok Narayan, the then

ACS (Home) Shri K. Chakravarthi, the then DGP, Shri P.C.

Pande; the then CP, Ahmedabad City, Shri K.

Nityanandam, the then Secretary, Home Department, Dr.

P.K. Mishra, the then Principal Secretary to CM, Shri

Prakash Shah, the then Addl. 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 presence of Shri Sanjiv Bhatt the then

DCI (Security) in the meeting on 27.02.2002, is not

established, his statement cannot be relied upon. Shri

120

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

121

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

209

Narendra Modi has also denied the presence of Shri Sanjiv

Bhatt in the said high level meeting. His presence has been

denied by others who were definitely present. Shri R.B.

Sreekumar has claimed that Shri K. Chakravarthi had

spoken to him on 28.02.2002, about the said meeting and

had claimed that CM uttered these words. However, Shri

Chakravarthi, the then DGP, has categorically denied any

such conversation with Shri R.B. Sreekumar and as such,

it becomes hearsay evidence, which cannot be considered

as evidence for any action. Shri R.B.Sreekumar, in his

representation dated 03.08.2009, had mentioned the

names of a different officer, who according to him, had

attended this meeting significantly, name of Shri Sanjiv

Bhatt had not been indicated by him. This goes to support

that Shri Sanjiv Bhatt was not present in the meeting. As

regards the deposition of Late Haren Pandya, formerly

MoS, Revenue before the Concerned Citizens Tribunal, in

which he had claimed to have attended the meeting called

by Chief Minister on the night of 27.02.2002, all the

participants have denied the presence of any of the

Cabinet Ministers/MoS at the said meeting. Late Haren

Pandya was only a Minister of State for Revenue at that

time. Shri Narendra Modi has stated that it was essentially

a Law & Order situation review meeting and none of his

cabinet colleagues attended it. Besides this, there is

documentary evidence in the form of call detail records of Late

Haren Pandya, which conclusively prove that he was present

at Ahmedabad till 22:52:07 hrs. on 27.02.2002 and as such

he could not have been present in the meeting convened by

chief Minister round 2230 hrs. or so. In view of this the

testimony of late Haren Pandya before the Tribunal

becomes highly unreliable. Also relevant here is the strained

relationship between him and Shri Narendra Modi, a fact

revealed by late Pandya’s father late Vithhalbhai Pandya.

Shri Sanjiv Bhatt, the then DCI (Security), has claimed

to 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: "that so far in communal riots police takes action

on one to one basis and that this will not do now. Allow

Hindus to give vent to their anger." Shri Sanjiv Bhatt, the

then DCI (Security), had initially claimed off the record

during his examination. On 25/26-11-2009, that the CM had

uttered these words at the said meeting. This fact was duly

incorporated by Shri A. K. Malhotra, Member, SIT in his

210

Inquiry Report dated 12.05.2010 submitted to the Hon'ble

Supreme Court of India. However, during his further ·

examination in CR No. 67/02 of Meghaninagar P. S. on 21

& 22-03-2011, he improved his version and added that

"This time the situation warranted that the Muslims be

taught a lesson to ensure that such incidents do not recur

ever again". It was for the first time after a period of seven

years and nine months that Shri Sanjiv Bhatt claimed to

have attended the crucial meeting 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's assessment of the situation. Shri

K. Chakravarthi categorically denied to have given any

such instructions and has further stated that Shri Sanjiv

Bhatt was not present at the said meeting. Seven other

officers who attended the meeting have also categorically

stated that Shri Sanjiv Bhatt was not present in the said

meeting. However, Smt. Swarnakanta Varma stated that she

was unable to recollect whether Shri Sanjiv Bhatt was present

or not. Besides that Shri Sanjiv Bhatt has pleaded ignorance

about the fact as to whether Chief Ministers alleged

instructions were passed on by the senior offices to the

subordinates and also as to whether the same were complied

with or not. Shri Sanjiv Bhatt is a tainted witness and there

fore, cannot be relied upon keeping in view his back ground

in the police department as he was involved in criminal

cases of serious nature and departmental inquiries are also

in against him. It may be added here that even before this

meeting, when Chief Minister visited Godhra on

27.02.2002 evening, he addressed the media at the

Collectorate and asserted that the culprits would not be

spared and the victims would be paid of Rs.2 lakh each.

The CM also appealed to the public through media to

maintain peace. Further more, on 28.02.2002, that is

within less than 12 hours of the alleged meeting that took

place on the night of 27.02.2002, 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 act very seriously and is

committed to give exemplary punishment to the culprits

so that such incident never recur anywhere. The Chief

Minister repeated almost the similar facts in his press

conference held on 28.02.2002 afternoon at Circuit House,

Annexe, Ahmedabad. It would not be out of place to

mention here that in his appeal made to the public through

Door-darshan on 28.02.2002, chief Minister reiterated

211

that Gujarat will never tolerate any such incident and that

guilty will be punished for their heinous crime. He also said

that the culprits would be awarded such exemplary

punishment so that no one would dare to involve himself

in such an incident. This would go to show that at-least on

five occasions, which are fully documented during

27.02.2002 & 28.02.2002 Chief Minister addressed Media,

Assembly and General Public and every where the genesis

and intention was one and the same, i.e. to punish the

culprits responsible for the Godhra incident in an

exemplary manner, so that such incidents, did not recur

ever again. In the light of aforesaid discussion, the

interpretations made on alleged illegal instructions given

by the Chief Minister by Shri R.B. Sreekumar and Shri

Sanjiv Bhatt, appear to be without any basis. Further, even

if such allegations are believed for the sake of argument, mere

statement of alleged words in the four walls of a room does not

constitute any offence……”

(emphasis supplied)

Again, while dealing with the allegations levelled by Mr. R.B.

Sreekumar regarding illegal verbal instructions issued by the then

Chief Minister, the analysis of the SIT read thus

122

: -

“…..

Illegal Verbal Instructions:

As regards the allegation leveled by Sreekumar, that

numerous illegal verbal instructions were given by CM and

that he had maintained a register in this regard, Shri O.P.

Mathur, the then IGP (Admn.), has stated that the register

was totally blank on 18.04.2002, when he had certified the

number of pages in the same and that Shri Sreekumar had

not disclosed the purpose of maintaining such a register.

According to Shri Mathur, the register did not contain

the “secret” stamp and also did not have any title as well

as the circular stamp of the office of the Addl. DG, CID

(Int.). According to Shri Mathur, Shri Sreekumar had

recorded the first entry as on 16.04.2002, the second and

third entries on 17.04.2002, and the fourth entry on

122

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

212

18.04.2002, which goes to show that Shri Sreekumar had

not only antedated these entries, but also affixed the

stamps subsequently. Shri Q.P. Mathur has challenged

another entry recorded by Shri Sreekumar that call details of

the mobile phone of Late Haren Pandya were handed over to

Shri P.K. Mishra, the then secretary to CM through him and

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

Chief Secretary, Shri Ashok Narayan, the then ACS

(Home) and Shri K. Chkriavarthi the then DGP have

challenged the contents of the said register on the

ground that the same had been unauthorisedly

maintained by Shri Sreekumar, which he was not

officially required to maintain. Moreover, neither had he

taken the permission of the Home Department to

maintain such a register nor the Same was put up by him

to any of the senior officers for perusal. It is, therefore

reasonable to say that Shri Sreekumar made the entries

afterwards at his own sweet will with some ulterior

motive. According to them, this register saw light of the

day for the first time, when Shri Sreekumar was denied

promotion. Shri Narendra Modi, chief Minister

disclaimed knowledge about such a personal

diary/register maintained by Shri Sreekumar and stated

that he came to know about it from the media reports

after a long time. According to Shri Modi this diary was

not a Govt. record and as such he did not want to

comment upon the authenticity or otherwise of the

same. All the aforesaid facts and the conduct create

serious doubts about the genuineness of the entries made

by Shri Sreekumar in the said register and, therefore it

cannot be relied upon. The allegation that illegal verbal

instructions were issued by Shri Narendra Modi is therefore,

not established……”

(emphasis supplied)

The SIT, after analyzing the entire materials, noticed that the

allegations in the complaint filed by the appellant, dated 8.6.2006

are mostly based on the contents of the nine affidavits filed by Mr.

R.B. Sreekumar before the Nanavati-Shah Commission. Those

213

contents were not on the basis of his personal

knowledge/information. He claims to have acquired information

after he was posted at Additional Director General (Intelligence) in

April, 2002. Notably, he had not made any adverse 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, 2005 owing to a

pending criminal case against him initiated by the JMFC, Bhuj. The

allegations made by him have been duly enquired into by the SIT

and found to be false or not based on his personal knowledge nor

could be duly corroborated despite best efforts of the SIT.

32. Further analysis regarding the allegation of intimidation of

Mr. 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. Sreekumar

that he was tried to influence to depose in favour of the Govt.

before Nanavati-Shah Commission of lnquiry through Shri

Dinesh Kapadia, Under Secretary, Shri Narendra Modi has

termed the allegation as false and without any basis Shri

Sreekumar, Retd. DGP while the letter as ADGP (Int) through

Shri S.M. Pathak, the then DY. S.P. Gandhinagar. He has

further stated that they used to exchange some sankrit verses

of mutual interest and used to visit each other in their office.

123

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

214

According to Shri Kapadia, during one of these meeting on

2l.8.2004, in the chamber of Shri Sreekumar, he took out a

copy of his affidavit filed before a Commission of Inquiry and

showed it to him and remarked that he was a born rebel. Shri

Kapadia stated to have a glance at the affidavit and made a

personal observation that no useful purpose would be served

by telling all these thing to the Commission, as all

Commission are paper tiger. He also expressed his personal

view that Commission was not the proper forum to tell these

things and said that Shri P.C. Pande, the then CP,

Ahmedabad City had rightly deposed before the Commission

and that he Shri R. B. Sreekumar should also emulate him.

According to Shri Kapadia, he expressed his personal views

that Shri Sreekumar was biased in his assessment of

situation and that the same could further put him in same

uncalled for controversy. Shri Kapadia has denied that he

was sponsored by anyone to influence Shri R B.

Sreekumar and that these were his personal views

expressed as a well wisher to Shri R.B. Sreekumar, whom

he considered as an honest and good officer. However,

subsequently he came to know that Shri Sreekumar had

clandestinely recorded his conversation and an enclosed

the transcript thereof along with his affidavit submitted

to the Commission. Shri Kapadia has also stated that on

day of his retirement i.e. 28.02.2007, Shri Sreekumar

called him to his chamber offered him a cup of tea and

also an unconditional apology for the whole episode. Shri

Kapadia has also stated that Shri R.B. Sreekumar

regretted the whole incident and stated that he had been

advised by his lawyer to do so as the same could have

strengthened his case pending before the CAT. Shri

Kapadia has denied to have influenced Shri R. B. Sreekumar

and further denied that he was holding any brief on behalf of

the Govt. in this regard.

Coming to the allegation made by Shri R. B. Sreekumar

that Shri G. C. Murmu, Secretary (Law & Order), Home

Department and Shri Arvind Pandya, Govt. Advocate to

Nanavati-Shah Commission of Inquiry had tried to influence

him not to depose against the Govt. prior to his appearance

on 31.08.2004 before Nanavati-Shah Commission of Inquiry,

it has come to light that the meeting was held at the request

of Shri Sreekumar and the conversation was clandestinely

recorded by him it may be mentioned here that initially both,

Shri Murmu and Shri Pandya briefed Shri Sreekumar about

215

the modalities for his examination and advised him about

certain precautions to be taken the time of his cross

examination. Rest of the conversation is confusing and does

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 interpreted the things to support his version that he was

pressurised, threatened, given illegal direction, intimidated to

avoid the revealing of the truth that would harm the Govt.

interests and to conceal the facts from the Commission. Shri

Sreekumar has given his own comments, observations

and conclusions and has also appreciated/interpreted

this conversation in his own manner, which showed that

he is not an independent witness and that he wanted to

influence the Inquiry officer to accept his inferences and

conclusions. Surprisingly, Shri Sreekumar did not state

these facts before the Nanavati-Shah Commission of

Inquiry, when he appeared before it on 31-08-2004, for

his cross examination even through alleged pressure was

put on him to depose in certain way in the Commission.

Obviously, Shri R. B. Sreekumar had kept it secret to be

utilised as and when the need arose. Further, he did not

disclosed these facts even in his second affidavit filed on

06-10-2004 before the Commission. It was only after Shri

R.B. Sreekumar was superseded in his promotion to the

rank of DG on 23-02-2005 that he filed his third affidavit

on 09-04-2005, before Nanavati-Shah Commission of

Inquiry of his own, and enclosed the transcript of the

recordings of the conversations with Shri Dinesh Kapadia

as well as Shri G. C. Murmu and Shri Arvind Pandya. All

these facts would go to show that Shri R.B. Sreekumar

had anticipated these events, had recorded these

conversations, clandestinely and used the same at his

convenience, when he was superseded in promotion. This

would prove that actions on the part of Shri Sreekumar were

motivated with a view to let down the Govt. after his

supersession in promotion. In all the three affidavits filed on

06-10-2004, 09-04-2005 & 27-10-2005 before the

Commission, Shri R.B. Sreekumar had made a request to be

summoned before the Commission and remedial measures

ordered as early as possible, but the Commission did not

accede to his request. In view of this the allegation relating to

the intimidation of Shri R.B. Sreekumar is not

substantiated……”

(emphasis supplied)

216

33. In the context of the opinion of Mr. Raju Ramachandra, learned

Amicus Curiae noted after the submission of the report of the SIT

before this Court, the SIT undertook further investigation and

collected relevant materials, which have been referred to alongwith

the previous materials in the final report presented before the

concerned Court

124

. As regards comments of the learned Amicus

Curiae in reference to allegations (i) and (iv), the outcome of the

further investigation has been discussed and analyzed from pages

401 to 434

125

. It may be desirable to reproduce the relevant extract

of the final report dealing with each observation noted by the learned

Amicus Curiae, to understand and appreciate the extensive, objective

and impartial analysis undertaken by the SIT including the further

investigation done after the order of this Court dated 15.3.2011

126

However, for the sake of convenience, we are appending the relevant

extract

127

thereof and have highlighted some pertinent portions, to

this judgment to be regarded as part of this judgment

128

. After going

through the materials and the analysis undertaken by the SIT,

124

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

125

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

126

see para 5(t) above

127

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

128

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

217

which commended to the Magistrate as well as, the High Court, we

unreservedly hold that no other view is possible.

34. We find force in the argument of the respondent-State that the

testimony of Mr. Sanjiv Bhatt, Mr. Haren Pandya and also of Mr.

R.B. Sreekumar was only to sensationalize and politicize the matters

in issue, although, replete with falsehood. For, persons not privy to

the stated meeting, where utterances were allegedly made by the

then Chief Minister, falsely claimed themselves to be eye-witnesses

and after thorough investigation by the SIT, it has become clear that

their claim of being present in the meeting was itself false to their

knowledge. On such false claim, the structure of larger criminal

conspiracy at the highest level has been erected. The same stands

collapsed like a house of cards, aftermath thorough investigation by

the SIT.

35. We hasten to add that it is only because of the ultra-sensational

revelation projected by Mr. Sanjiv Bhatt and Mr. Haren Pandya, who

unabashedly claimed to be privy to the utterances made by the then

Chief Minister in an official meeting, the constitutional functionaries

and this Court was required to move into action taking serious note

218

of the same. But, after thorough investigation by the SIT, the falsity

of such claim has been fully exposed on the basis of credible

indisputable materials collated 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

of hard work and planning of the concerned State functionaries in

their attempt to control the spontaneous evolving situation of mass

violence across the State of Gujarat, despite the handicap of

administration including the inadequate State police force required

to be replenished with central forces/Army, which were called

without loss of time and the repeated appeals made by the then Chief

Minister publicly to maintain peace.

37. Realizing the difficulty in pursuing the stated allegations [Nos.

(i) and (iv)], the appellant has been now advised not to pursue the

same and in the written note [reproduced in paragraph 6(www)] filed

after the conclusion of hearing, confirmed that statement. The

learned counsel for the appellant did not contend before this Court

that a larger conspiracy emanated from the meeting of 27.2.2002;

219

and that, therefore, had made no reference to this meeting in this

appeal during arguments at all. As aforesaid, we are of the

considered opinion that the enquiry to be made in this case is

essentially regarding the allegations of larger criminal conspiracy at

the highest level. That itself has, now, in a way, been abandoned by

the appellant in this appeal. It must follow that no other aspect

needs to be examined in this appeal as the finding of the Magistrate

and 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 urged

that the appellant has been changing goalpost at every stage of the

proceedings before different Courts. It is seen that the allegation of

larger criminal conspiracy at the highest level spelt out in the

complaint and protest petition, was in reference to the sensational

revelation made by Mr. Sanjeev Bhatt and Mr. Haren Pandya, the

falsity whereof has been exposed by the SIT. As a result, now the

appellant is pursuing the same allegation by relying on so-called

undisputed extra-judicial confessions recorded in Tehelka tapes on

the specious plea that there can be no direct evidence regarding

larger conspiracy. Hence, in this appeal, the entire focus of the

220

appellant has been to highlight the so-called undisputed extra

judicial confessions recorded in Tehelka tapes to be read with the

inaction of the officials demonstrable from the undisputed official

documents to establish a larger conspiracy and which according to

the appellant, has not been enquired into by the SIT. The stated

undisputed evidence, according to the appellant, points to a larger

conspiracy, which appears to involve bureaucrats, politicians, public

prosecutors, VHP, RSS, Bajrang Dal and members of the State

political establishment.

39. This argument, we unhesitatingly opine, is nothing short of red

herring. In that, emphasis has been placed on evidence such as SIB

messages. What has been conveniently glossed over is that, to make

out a case of larger criminal conspiracy, it is essential to establish a

link indicative of meeting of minds of the concerned persons for

commission of the crime(s), committed during the relevant period

across the State including the heart-rending episode unfolded at

Godhra on 27.2.2002, in which large number of Kar-sevaks were

burnt alive in train bogies. No such link is forthcoming, much less

had been unraveled and established in any of the nine (9) cases

investigated by the same SIT under the directions of this Court.

Accepting the argument of the appellant would require us to

221

question the wisdom of this Court and to hold that even the incident

at Godhra unfolded on 27.2.2002 was also the outcome of alleged

larger criminal conspiracy. Such a view would be preposterous.

40. In that, the Godhra incident has been fully enquired into by the

SIT to the satisfaction of this Court and even the trial had ended in

recording conviction against the concerned accused (belonging to

minority community). As to how the Godhra incident unfolded, has

been analyzed by the High Court in confirmation appeals in Godhra

train case about the acts of planning and commission by a group of

persons. Suffice it to observe that forwarding of messages by the

intelligence agencies including inaction or lack of effective measures

taken by the concerned officials per se does not imply criminal

conspiracy on the part of the State authorities. As stated earlier,

absent tangible material suggestive of a chain or any perceivable link

or connection with the unfolding of mass violence across the State,

it is unfathomable as to how the SIT could have still recommended

sending the alleged offenders for trial, much less would obligate the

concerned Court to take cognizance on such unfounded allegations.

There is no material forthcoming to indicate that there was failure

on the part of intelligence to collect information and it was a

deliberate act on the part of the State Government authorities.

222

Whereas, the allegation is that intelligence inputs were collected and

disseminated to concerned authorities, but not acted upon by the

concerned officials in right earnest.

41. Needless to underscore that inaction of the duty holders to take

those messages to its logical end, cannot be regarded as act of

criminal conspiracy unless there is material to provide link regarding

the meeting of minds and deliberate act to effectuate a plan to spread

mass violence across the State. The SIT had recorded statement of

Mr. Ashok Narayan, the then ACS (Home), Gujarat, dated

12.12.2009, who stated as follows: -

“…..The State of Gujarat has a long history of communal

riots way back to 1714. Thereafter riots had erupted in the

State on many occasions during the last three centuries.

However, post-independence, major riots took place in the

State in 1969, 1985 and 1992-93. Inputs regarding the

communal situation in the State had been received from the

State Intelligence Bureau as well as Intelligence Bureau,

Ministry of Home Affairs, Government of India. This

information was sent to the concerned authorities to initiate

appropriate preventive and remedial measures. Actionable

information was analysed and communicated to the DGP and

other field formation for further necessary action.

At the time when I took over as ACS (H), the communal

atmosphere in Gujarat State was neither surcharged nor

volatile prior to 27.02.2002. It may be mentioned here that the

programme of Shilanyas for Ram Mandir at Ayodhya was

announced quite a few months back to be done on 15th March

2002 and this announcement had arose some passions across

the country. In Gujarat State Intelligence outputs were

available to the government about the movement of the

Karsevaks from different places in Gujarat to Ayodhya.

Keeping in view this information all SsP/CsP were alerted on

07.02.2002 about the movements of Karsevaks. The

Government had specific information that on 16.02.2002 that

Shri Prahladbhai J. Patel, President of Bajrang Dal would leave

for Ayodhya for Maha Yagna along with 150-200 persons.

Further on 22.02.2002 he will depart from Mehsana railway

223

station at 15.40 hours by Delhi-Ahmedabad Mail train for

Ahmedabad and on 24.02.2002 they would leave Ahmedabad

railway station by Sabarmati Express train 9165 Dn. at 20.25

hours for Ayodhya. Also there was information that they will

return on 26.02.2002 from Ayodhya at night and would reach

Ahmedabad on 28.02.2002 morning. 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, Lucknow vide fax message dated

16.02.2002. However, no specific information had been

received from the IG Communal Intelligence, UP about the

return journey of Karsevaks or from anyone else……”

This version belies the claim of the appellant including the

unfounded allegation of criminal conspiracy at the highest level for

causing mass violence across the State. The materials gathered by

the SIT on the other hand, would suggest that despite the corrective

measures taken by the concerned officials in right earnest, the

situation evolved in unpredictable and sporadic manner and the

expanse of the activities were such that the State administration was

completely overrun.

42. At the cost of repetition, be it noted that the SIT had not found

any conspiracy for linking the separate incidents of mass violence

across the State during the investigation of nine (9) separate crimes

including the Godhra train incident, dealt with by the SIT under the

strict vigil and supervision of this Court and ably assisted by the

learned Amicus Curiae playing the role of devil’s advocate. Whereas,

the messages generated by SIB from time to time even before

224

27.2.2002, in fact would go to show that the concerned officials were

vigilant, but the situation as evolved post Godhra incident, was

unparalleled and had overrun the State administration.

43. In any case, inaction or failure of some officials of one section

of the State administration cannot be the basis to infer a pre-

planned criminal conspiracy by the authorities of the State

Government or to term it as a State sponsored crime (violence)

against the minority community. The SIT had noted that inaction

and negligence of the erring officials has been taken note of at the

appropriate level including by initiating departmental action against

them. Such inaction or negligence cannot pass the muster of

hatching of a criminal conspiracy, for which the degree of

participation in the planning of commission of an offence of this

magnitude must come to the fore in some way. The SIT was not

there to enquire into the failures of the State administration, but the

remit given to it by this Court was to enquire into the allegations of

larger criminal conspiracy (at the highest level).

44. Conspiracy cannot be readily inferred merely on the basis of

the inaction or failure of the State administration. In the enquiry

225

undertaken by the SIT, it had been found that the developments

were in quick succession and had overrun the arrangements already

in place or for that matter, additional support by calling Army on

28.2.2002 itself besides the curfew imposed in the most disturbed

areas of the State. In light of such timely corrective measures taken

by the State Government in right earnest and repeated public

assurances given by the then Chief Minister that guilty will be

punished for their crime(s), and to maintain peace, it would be

beyond comprehension of any person of ordinary prudence to bear

suspicion about the meeting of minds of named offenders and

hatching of conspiracy by the State at the highest level, as alleged,

much less grave or strong suspicion as being the quintessence for

sending the accused for trial for an offence of criminal conspiracy.

45. The protagonists of quest for justice sitting in a comfortable

environment in their air-conditioned office may succeed in

connecting failures of the State administration at different levels

during such horrendous situation, little knowing or even referring to

the ground realities and the continual effort put in by the duty

holders in controlling the spontaneous evolving situation unfolding

aftermath mass violence across the State. The linking of such

226

failures is not enough to entertain a suspicion about hatching of

criminal conspiracy at the highest level, which requires a 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 to the address by Baron Alderson about the dexterity and

ability of ingenious mind to create theories, where he had said: -

“The mind was apt to take a pleasure in adapting

circumstances to one another, and even in straining them a

little, if need be, to force them to form parts of one connected

whole; and the more ingenious the mind of the individual, the

more likely was it, considering such matters, to overreach and

mislead itself, to supply some little link that is wanting, to

take for granted some fact consistent with its previous

theories and necessary to render them complete.”

Be that as it may, overrunning of State administration is not an

unknown phenomenon. It has been witnessed all over the globe

during the second wave of pandemic, where the countries with even

best of medical facilities crumbled and their management skills were

overrun under the pressure. Can it be said to be a case of hatching

of criminal conspiracy? We need not multiply such instances of

overrun. Breakdown of law-and-order situation if for short duration,

128A

(1838) 2 Lew 227, referred to in Hanumant, son of Govind Nargundkar vs. State of Madhya Pradesh –

1952 SCR 1091

227

cannot partake the colour of breakdown of rule of law or

constitutional crisis. To put it differently, misgovernance or failure

to maintain law-and-order during a brief period may not be a case

of failure of constitutional machinery in the context of tenets

embodied in Article 356 of the Constitution. There must be credible

evidence regarding State sponsored breakdown of law-and-order

situation; not spontaneous or isolated instances or events of failure

of State administration to control the situation. Suffice it to observe

that the breakdown of law-and-order situation in the State including

attributable to the alleged inaction of the (State) duty holders, owing

to spontaneous mass violence cannot be a safe measure to infer as

being a part of the criminal conspiracy at the highest level of political

dispensation unless there is clear evidence to so conclude regarding

meeting of the minds of all concerned and their concerted efforts to

commit or promote commission of such crime. The allegation in the

present case, if at all relevant, was founded on falsehood of the claim

of Mr. Sanjeev Bhatt and Mr. Haren Pandya regarding the utterances

of the then Chief Minister in review meeting chaired by him – which

stood completely exposed after the investigation by the SIT.

228

46. For the same reason, it would not be open to the concerned

Court to take cognizance or to call upon the SIT to do further

investigation absent any tangible material. On the other hand, the

opinion recorded by the SIT while dealing with allegation No. (viii)

129

has dealt with the materials to conclude that it cannot be said that

no action had been taken on letters sent by Mr. R.B. Sreekumar.

Similarly, while dealing with the allegation [No. (xiv)] regarding

undue delay in requisition and deployment of Army

130

, the SIT had

opined that there was genuine problem of deploying Army despite

sending of requisition on 28.2.2002 at 1300 hrs., which message

was sent by fax to the Union Defence Secretary, Ministry of Defence

at 1430 hrs. and the time taken in posting the Army after its arrival

due to logistical reasons.

47. Suffice it to observe that there is no tittle of material, much less

tangible material to support the plea of the appellant that the

Godhra incident unfolded on 27.2.2002 and the events which

followed, was a pre-planned event owing to the criminal conspiracy

hatched at the highest level in the State. It is well settled that

129

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

130

pages 293-294 and 342-343 of original copy of the final report forming part of Convenience Compilation of

respondent No. 2

229

conspiracy requires an act (actus reus) and an accompanying mental

state (mens rea). The agreement constitutes the act and the

intention to achieve the unlawful objective of that agreement

constitutes the required mental state. The offence of conspiracy is

independent of other offences. It takes place when there is an

agreement to do or cause to be done an illegal act, or an act which

may not be illegal but by illegal means. The rationale of conspiracy

is that the required objective manifestations of dispositions of

criminality is provided by the act of agreement. To convict a person

of conspiracy, the prosecution must show that he agreed with others

that together they will accomplish the unlawful object of the

conspiracy

131

. As noted earlier, inaction in the response or even in

a given case of non-responsive administration, can be no basis to

infer hatching of criminal conspiracy by the authorities of the State

Government in absence of any clear evidence about the meeting of

minds; and that, failure to respond to the messages sent by SIB was

a concerted and deliberate act of omission or commission on the part

of the State and other functionaries, as alleged. The SIT had

recorded the statements of all concerned including the officials

131

See Firozuddin Basheeruddin (supra at Footnote No. 43), R. Venkatkrishnan (supra at Footnote No. 45), Shiv

Charan Bansal (supra at Footnote No. 46), and Nazir Khan (supra at Footnote No. 59)

230

before forming the opinion, as noted in the final report, to discard

the allegation under consideration. The Magistrate, as well as, the

High Court committed no error whatsoever in accepting the final

report presented by the SIT.

48. Thus understood, the argument pressed into service about the

existence of materials regarding build-up of communal mobilizations

and stockpiling of weapons, arms and ammunitions even before the

Godhra episode on 27.2.2002 being part of the larger criminal

conspiracy, is devoid of merits. This argument proceeded on an

erroneous assumption that the SIT had not investigated into this

crucial matter. The final report presented by the SIT before the

concerned Court has dealt with the relevant aspects while

considering allegation No. (viii)

132

, as also, under the heading

“Failure to Act on Suggestions From State Intelligence”, while

considering the allegations against the then Chief Minister

133

, in the

following words: -

“…..

Failure to act on suggestions from State Intelligence

Shri Narendra Modi has stated that in order to bring

to bring peace and normalcy in the State, he had made

regular appeals through media to maintain peace and

Communal harmony. CM has claimed to have formed a

132

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

133

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

231

Committee under the Chairmanship of the Governor of

the State; Leader of Opposition and others to supervise

the relief operation. He has further stated that the relief

camps were opened in the affected areas served by the NGOs

and local social leaders. He has also stated that the funds

were contributed by the Govt. as per policy and the relief

operations supervised by the Committee. According to Shri

Modi, the necessary food, drinking water, medicines and

cash, etc were arranged in these camps and arrangements

also made for the children education in these camps.

According to Shri Modi, some PIL had been filed in this regard

in Gujarat High Court and the same should be looked

into……”

And again:

“….. As regards the DO letter dated 24-04-2002 sent by

Shri R.B. Sreekumar, the then Addl. DG (Int.) to Shri Ashok

Narayan, the then ACS (Home). Shri Narendra Modi has

stated that no such letter was put up to him. However, Shri

Ashok Narayan, the then ACS (Home) has stated that the

letter contained general observations and concrete

details were missing and therefore, he had discussed

from Shri R.B. Sreekumar and requested him to take

action at his level as far as possible. Shri Ashok Narayan

does not recollect having put up this letter to CM. Shri

K. Chakravarthi the then DGP has stated that most of the

points and issues raised by Shri R.B. Sreekumar had been

effect1vely dealt with in March & April, 2002. Shri

Chakravarthi has also stated to have taken adequate steps

to restore the loss of faith of the minority community in the

Criminal Justice System by instructing the concerned police

officers to be fair to ensure proper registration of FIR effect

arrests of the accused persons and to proceed ahead With

the investigation as per law. Shri Chakravarthi has also

stated that the, teams of the police officers were sent to the

relief camps for direct contact with the affected persons and

to proceed with the investigation in a fair manner. Shri

Chakravarthi has also spoken of having given instruction to

the senior officers to closely supervise these cases to avoid

any allegations. According to Shri Chakravarthi, special

instruction was given by him to all the police officers to

provide suitable protection to those who wanted to return to

their original residenceI Business. Regarding the law & order

situation, review report sent by Shri R.B. Sreekumar to Home

Department on 15-06-2002, requesting the postponement of

the Rath-Yatra till an atmosphere of durable peace and

goodwill was established between the majority and minority

community, Shri Ashok Narayan has stated to have

discussed the matter with Chief Minister, who did not agree

with the views of Shri Sreekumar to stop the Rath-Yatra, as

232

this was an event in vogue for so many years. Shri Ashok has

also stated that the Administration did not agree with the

view of Shri Sreekumar and the Rath-Yatra was taken out on

12-07-2002, under police bandobast and the event passed

off peacefully. Further, according to Shri Chakravarthi,

these were the personal views of Shri Sreekumar, which were

duly considered by the Govt. Shri Chakravarthi has also

stated that the report sent by Shri Sreekumar was not well

through of and was not based on realities and therefore Govt.

did not agree with the view of Shri Sreekumar and that his

apprehensions were without any basis. Coming to another

report on the prevailing law & order situation sent vide letter

dated 30-08-2002 with the approval of Shri Sreekumar, it

may be mentioned that the gist of presentation made before

the Election Commission on 09-08-2002, was included in the

same. In nutshell Shri Sreekumar projected in this letter

that the communal tension continued and the communal gap

had widened between Hindus and Muslims and that any

minor issue would reignite communal passions resulting in

clashes as had been witnessed in Dhoraji, Rajkot on 17-08-

2002. Shri Ashok Narayan has stated that he sent a DO

letter dated 09-09-2002 to Shri Sreekumar that his

assessment of law & order situation conveyed on 20-08-

2002, was not in tune with the feedback received by him from

other agencies. Shri Ashok Narayan has further pointed

out that some feeling of insecurity amongst the minority

community was understandable in isolated pockets, but

the same did not indicate the feelings of insecurity

anymore. Shri Ashok Narayan disagreed with the views

of Shri Sreekumar on the ground that no broad based

inputs were relied upon by him before arriving at a

conclusion. As regards the letter dated 28-08-2002 Shri

Ashok Narayan, the then ACS (Home) has stated that he

did not recall the action taken by him on the said letter,

but the suggestions made therein seemed logical and in

normal course action must have been taken by the Home

Department. Shri K. Chakravarthi has stated that as far

as police department was concerned, he had given

directions based on his suggestions. However, the relevant

files on the subject have not been made available by the Govt.

of Gujarat. Keeping in view the versions of Shri Ashok

Narayan, Shri K. Chakravarthi and Shri Narendra Modi

about the Rath-Yatra and also about the DO letter dated 09-

09-2002 sent by Shri Ashok Narayan to Shri Sreekumar, it

can not be said that no action was taken on the views

sent by the latter to the Govt. In view of the position

explained above the allegation is not established……”

(emphasis supplied)

233

49. Reverting to the allegation coined as “Allegations Carried by

Tehelka Magazine”, the final report deals with the same as

follows

134

“…..

Allegations carried by Tehelka magazine:

When confronted with the interviews given by Shri Haresh

Bhatt, the then MLA, Babu Bajrangi and Rajendra Vyas,

President, VHP Ahmedabad City to Shri Ashish Khetan,

Special Correspondent, Tehelka, Shri Narender Modi has

stated that the allegations leveled against him were false and

incorrect. He has further stated that this issue was raised in

November 2007, after about six years of incident and that too

at the time of elections in December, 2007. Further, these

issues were again raked up in April 2008 when the SIT was

appointed by the Supreme Court. Shri Modi has also stated

that this issue was again raised on 22-02-2010, when he was

to appear before the SIT for his examination. According to Shri

Modi, the whole episode is motivated and stage managed and

that he had no personal knowledge about the authenticity of

the said CD.

In this connection, it may be added here that Shri Haresh

Bhatt, formerly MLA and accused Babu Bajrangi in Naroda

Patiya case have admitted their voice as also the contents of

the CD. Shri Haresh Bhatt has stated that one Shri Ashish

had approached him that he wanted to write a thesis on

Hindutva and wanted him to contribute some spicy material

for the same, so that he could succeed in his mission. He has

further stated that Ashish visited him at his residence in

Ahmedabad City as well as at Godhra at least 7-8 times in a

month period and when the reference came to Gujarat riots,

he gave an imaginary story as Ashish wanted some spicy

material for his thesis. He has stated that the talks about a

CBI inquiry, the fact that he owned a gun factory where

diesel bombs and pipe bombs were made and distributed to

Hindus, the fact about two truck load of swords ordered

from Punjab and subsequently distributed amongst

Hindus, making of a rocket launcher in his gun factory by

filling them with gun powder and lighting a 595 local made

134

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

234

bomb to blast were absolutely false and baseless. He has

also mentioned that his talk about Shri Narendra Modi

having openly said that we had three days to do, whatever

we could do and that he would not give us time after that,

were imaginary story and that Shri Modi never told these

things to him.

Shri Babu Bajangi has stated that Shri Ashish Khetan

had given him a script and he simply read out the same and

that none of those facts were correct. After going through the

facts stated by these persons during the sting operation, it

appears that they were bragging and that most of the facts

stated by them are innocent. Further, they were not

questioned as to how and when Shri Narendra Modi gave them

three days time. The facts about a gun factory owned by

Shri Haresh Bhatt and changing the judge thrice by Shri

Narendera Modi are unacceptable by any stretch of

imagination inasmuch as no such gun factory could be

unearthed by the police and Shri Modi was not competent

to transfer could be unearthed by the police and Shri Modi

was not competent to transfer the judges, as the same is

the prerogative of the Gujarat High Court. There are many

factual inaccuracies in the statement of Babu Bajrangi

inasmuch as he has stated that there were 700-800 dead

bodies in Naroda Patiya and that the Commissioner of Police

had instructed the policemen to throw it at different places in

Ahmedabad City, as it would be difficult to explain the same.

This is absolutely incorrect inasmuch as only 84 dead bodies

were found at Naroda Patiya and 11 persons were reportedly

missing. In any case this evidence has already been adduced

in the Court and the matter is subjudice and hence no further

comments……”

(emphasis supplied)

50. It is indisputable that the Tehelka tape was the brainchild of

Mr. Ashish Khaitan who was working with Tehelka. He had

conducted an enquiry of similar nature in the past, where the

workers of VHP had indulged in vandalism and manhandled some

of the students and a professor over a painting wherein objectionable

235

images of Hindu Deities were displayed. Mr. Ashish Khaitan, in

order to conduct a sting operation on this occasion, used a spy

camera and also prepared an identity card in assumed name of

Piyush Agarwal of Delhi University. He visited Baroda and

conducted sting operation on Mr. Dhimant Bhatt, Chief Auditor of

M.S. University, Baroda and office bearer of VHP. Thereafter, from

May to September, 2007, he recorded the audio/visual

conversations of 18 individuals pertaining to post-Godhra riots. The

telecast of the sting operation was published on 27.10.2007 in

television channels. After such publication, the NHRC directed CBI

to submit report vide order dated 5.3.2008. The CBI in the course

of enquiry, collected certain information and submitted report to the

NHRC, opining regarding 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-15 match in respect of speech, utterances, laugher, stray

ringing tones of mobile hand sets, movements of body parts

and body language of the persons appearing in the recorded

events.

(ii) No Evidence of editing, alteration and tempering has been

detected in the audio video recordings and their respective

voice track 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 video footage and the time lag of audio track recorded

236

I the DVD exhibits P-V/D-I to P-V/D-15 are similar to the

camera signals, frame co-coordinators, number of frames per

second and the time lag of audio track recordings of cameras

P-I/I and PII/I and hence the DVDs could have been recorded

with the camera exhibit P-I/I and the camera exhibit P-II/I.

(iv) A large number of video clips produced in the video CDs

exhibits P-V/C-I to P-V/C-5 have been taken from the video

footages 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)

in the recording of DVDs have not been produced.”

From this report, the technical veracity of the tape can be accepted

on the basis of CFSL report. However, as that would not be

sufficient, the SIT recorded the statements of 13 persons who were

available and had made revelations on Tehelka tape. As aforesaid,

only one of them has been named as offender (No. 22) in the

complaint filed by the appellant, namely, Babubhai alias Babu

Bajrangi. The material from sting operation has been submitted by

the SIT in three (3) out of nine (9) sets of cases assigned to SIT by

this Court, namely, in Gulberg Society, Naroda Patiya and Naroda

Gaam, where the persons making revelations have been named as

accused in the concerned case. As regards the evidence from the

stated sting operation produced by the SIT in CR No. 67/2002

concerning Gulberg Society, the trial Court in its judgment dated

26.12.2013 after analyzing the same, has held that a sting operation

can at best be a good corroborative material against the accused who

237

are stung 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 on the view taken by the trial Court in the stated case, as it

is pending challenge. Suffice it to mention that Mr. Babu Bajrangi

has already been chargesheeted and tried in connection with the

evidence concerning sting operation in which he was stung. The SIT

had noted that call details of Mr. Babu Bajrangi reveal that he was

in Ahmedabad from morning till 11:15 hrs. on 27.2.2008 and could

not have remained present at Godhra at the time of incident.

51. We find force in the argument of the respondents that although

the sting operation was not part of the complaint filed by the

appellant or the report of the learned Amicus Curiae, but the same

has been thoroughly investigated by the SIT including by recording

statement of 13 persons who were stung. At the end of the

investigation, the SIT found that other persons whose statements

were recorded by the SIT were not accused in any case and also no

corroborative evidence pertaining to any larger conspiracy was found

in their statements. Absent such corroborative material, the

135

supra at Footnote No. 85

136

supra at Footnote No. 85

238

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

meeting of 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 confession of

18 persons as recorded in Tehelka tape, it needs to be understood

that the extra-judicial confession can at best be used against the

maker and not against others

136A

. Further, such statements need

corroboration to be used against other accused. The SIT

nevertheless recorded statement of 13 out of 18 persons, who had

made revelations, as recorded in Tehelka tape. Out of them, only

Mr. Babu Bajrangi Patel, Member, Bajrang Dal has been named as

an offender in the complaint submitted by appellant. The SIT in its

final report, has considered the relevant aspects while dealing with

offender No. 22 – Mr. Babu Bajrangi Patel, in the following words

137

136A

see: Section 30 of the Indian Evidence Act, 1872

137

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

239

“…..

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

Shri Babu Bajrangi has stated that he joined Bajrang

Dal in 1995, later got introduced to Shri Pravin Togadia, Shri

Jaydeep Patel and Home Minister Shri Gordhan Zadafia and

also case in contact with other Sangh Parivar activists. He has

stated to have come to know about the Godhra carnage

through TV news on 27-02-2002, in which one of the Kar-

sevaks, namely, Shri Bhimjibhai K. Patel belonging to his

community was also killed, whereas other kar-sevaks from his

village namely Shri Dharmendra Patel and others survived. He

has further stated that his nephew Shri Bharat R. Patel had

visited Godhra on 27-02-2002, by car on that day and returned

to Ahmedabad in the night. He has taken the plea that mobile

phone no. 9825020333 was used by his nephew Shri Bharat

Patel. He has further stated that he went to Sola Civil Hospital

on 28-02-2002 at about 0700 hrs and the dead body of Bhimji

K. Patel was identified by Shri Vashrambhai, uncle of Bhimji

Patel, taken by them to their village, and they arrived at about

1330 hrs. The funeral of Late Bhimjibhai Patel was over at

about 1530 hrs and thereafter, he has stated to have gone to

Khedbrahma along with Shri Dharmendra Patel. He has

further stated that he stayed at Khedbrahma on 28-02-2002,

as the communal riots had erupted and no transport was

available. According to Shri Babu Bajrangi, he returned to

Naroda on 01-03-2002 late in the night and was informed by

his family members that he had been named as an accused in

Naroda Gam and Naroda Patiya carnage cases. Thereafter, he

has stated to have left for his elder sister Laxmiben's house on

02-03-2002, who stays in village Kevdia-Kampa and stayed

there for about three or four months. As per Shri Bajrangi, he

was arrested by the Crime Branch, Ahmedabad City, on 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

Piyush Agarwal and informed him that he was making a film

on Hinduism and that he has to pay a role in it and speak some

dialogues. He has admitted his voice, and the conversation

held with Shri Ashish Khetan, but has taken the plea that he

had read the dialogues as per a written script given by Shri

Ashish Khetan. However, he had stated that all these facts

240

were incorrect and that he had spoken the same, as Shri

Ashish Khetan asked him to do so.

It may be mentioned here that Shri Babu Bajrangi has already

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 the

matter is sub-judice, no action is called for in the matter……”

53. The SIT has not found any conspiracy, linking separate and

disparate acts of arson and looting or outrageous claims made in

sting operations or individual utterances/publications of purported

hate speech, to any singular larger conspiracy or planned event. The

materials gathered during the investigation, in no way link any

“meeting of the minds” in any of the nine (9) cases investigated by

the SIT or for that matter, other incidents alleged in the complaint

or the protest petition. The riots across the State had taken place

spontaneously, immediately after the Godhra Train Carnage. In the

investigation done by the SIT in all the nine (9) sets of cases, no

material was discovered pointing towards any meeting of

minds/conspiracy in the higher echelons of the administration or

the political establishment conspired with other persons to cause

such riots or for having turned nelson’s eye when the riots had

triggered and continued. There is no chain or any perceivable link

or connection in these occurrences during the relevant period, which

241

ought to be the quintessence had it been a case of larger conspiracy

at the highest level. Indeed, the factum of conspiracy can be

inferred, but absent any perceivable 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

pressed into service on the premise of no investigation done by SIT

on crucial matters is contrary to the materials on record and we find

that the opinion recorded by the SIT is after due consideration of all

aspects and backed by tangible materials gathered during

investigation by it.

55. For the same reason, the argument regarding mass

mobilizations and hate speech on 27.2.2002 regarding proactive and

aggressive behaviour of persons returning from Ayodhaya/Kar-

sevaks after the Godhra attack, is tenuous. During the course of

arguments, much effort was made by the appellant to impress upon

us that the SIT had not even bothered to record the statement of Mr.

Anil Patel, which the respondents have duly refuted by pointing out

from the record that there are three persons with the same name -

242

Anil Patel and the SIT had recorded statement of all of them (Mr. Anil

Shankerbhai Patel - VHP worker; Anil Tribhovandass Patel – a

former Minister and named as one of the offenders in the complaint;

and Anil M. Patel - BJP Doctor Cell) - and also analyzed the same in

the final report. The appellant had referred to the statements of Dr.

Anil M. Patel, as if he was concerned with the sting rather than

reading the statement of Mr. Anil Shankerbhai Patel. Similarly,

incorrect submission was made in reference to Mr. Arvind Pandya,

Advocate, who was one of the persons stung in operation ‘Kalank’.

The appellant contended that he was appointed as a public

prosecutor in riot cases. As a matter of fact, Mr. Arvind H. Pandya,

was appointed as one of the defending Special Counsel for Gujarat

State in June, 2002 to defend the State Government before

Nanavati-Shah Commission 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,

parading them from Godhra to Ahmedabad. According to the

appellant, the post-mortem was done in the open yard as part of

larger criminal conspiracy to obliterate the real cause of death of

243

Kar-sevaks at Godhra due to fire and then to transport the dead

bodies to Ahmedabad so as to parade them 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 of persons

(who were later identified after investigation and faced trial ending

in conviction) for setting the train (Coach S6 of Sabarmati Express)

carrying Kar-sevaks on fire. The case concerning Godhra train

episode was also investigated by the SIT under the supervision of

this Court and that trial ended in conviction of 32 (thirty-two)

persons and the confirmation appeals for capital punishment have

also been disposed of by the High Court. In those proceedings, the

Courts have considered the issue concerning post-mortem of dead

bodies in the open in Railway yard. In other words, the issue under

consideration raised by the appellant has already passed the muster

of judicial scrutiny before the trial Court and the High Court.

Accepting the argument of the appellant on this score would need

reinvestigation of the concluded case which must be eschewed and

cannot be countenanced.

244

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 Godhra train

fire incident to Ahmedabad and parade them in Ahmedabad

City.

Enquiries revealed that Smt. Jayanti Ravi, the then

Collector & District Magistrate, Godhra Panchmahals

District received a telephone call at about 0800 hrs from

Shri Raju Bhargava, the then Superintendent of Police,

Panchmahals District that there had been an incident of

stone pelting as also torching of railway coach of the

Sabarmati Express near Godhra Railway Station.

Immediately, messages were conveyed to the concerned

Municipal Authorities at Godhra, Lunawada and Kalol to

send the fire tenders to the spot. According to Smt.Jayanti

Ravi, she reached the spot near Godhra Railway Station at

about 0845 hrs. By that time, a crowd had assembled at

Godhra Railway Station and the immediate problem was to

take care of the transit passengers who had been stranded

there, because of the fire and stone pelting incident. The

injured passengers were given medical aid by the Civil

Hospital, Godhra, whereas those, who had received severe

burn injuries, were immediately admitted to the Civil

Hospital, Godhra. Around 1200 hrs, the District

Administrative officials could step into the S6 coach of

Sabarmati Express with a view to assess the actual number

of deaths in the incident. As the bodies in the coach were

charred and in mutilated condition, it was virtually

impossible to count the head. In order to ensure that the

stranded passengers were not put to any further

inconvenience, the railway authorities detached the two

affected/burnt bogies from the main train, parked them in

the railway yard and joined the rest of the bogies together.

Finally, the Sabarmati Express left Godhra around 1300

hrs for Ahmedabad, its destination.

Shri Narendra Modi, Chief Minister arrived at Godhra

by helicopter sometime between 1600 hrs to 1700 hrs and

138

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

245

was accompanied by Shri Anil Mukim, the then Secretary

to CM. He was received at the helipad by Smt. Jayanti Ravi

and Shri Ashok Bhatt and he straightaway drove to the

Godhra Railway Station. CM inspected the spot and talked

to some of the persons gathered there. Since, curfew had

been imposed in the Godhra town, the Chief Minister

decided to go to Collectorate and meet the people as well as

press. At that time Shri Gordhan Zadafia and Shri

Prabhasinh Chauhan, the then Minister of Civil Aviation &

Pilgrimage and being a local MLA, had also come and they

all went to the Collectorate Smt Jayanti Ravi has stated

that in the meeting held at Collectorate, one Shri

Jaydeep Patel, a VHP activist was also present. Smt.

Jayanti Ravi has also stated that after holding

discussions, a unanimous decision was taken that the

dead bodies, which had been identified should be

handed over to their relatives at Godhra itself and those

bodies whose legal heirs or guardians had not come,

could be sent to Sola Civil Hospital, Ahmedabad since,

they belonged to Sabarmati Express heading towards

Ahmedabad. Smt. Jayanti Ravi has categorically denied

that decision was taken against her wishes. The

decision to send the bodies to Sola Civil Hospital was

taken in view of the fact that it was situated on the

outskirts of Ahmedabad City and thus away from the

crowded area for security reasons. It has further come

to light that out of 58 burnt and dead bodies, 4 bodies

belonging to Dahod, Vadodara, Panchmahal and Anand

Districts were handed over to their legal

heirs/guardians after identification at Godhra itself.

The remaining 54 dead bodies were to be sent with

police escort to Sola Civil Hospital, Ahmedabad.

Further, Shri Jaydeep Patel of VHP was to accompany

them.

Enquiries revealed that as per the call detail records

of mobile phone no. 9825023887 of Shri Jaydeep Patel, he

reached Godhra on 27-02-2002 around 1248 hrs and

remained there till 2358 hrs. At Godhra, he had

made/received calls to/from Shri Gordhan Zadafia at the

latter's mobile phone no. 9825049145. All these calls 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.

9825049198 between 1305 hrs and 2116 hrs. The aforesaid

246

call detail records establish that Shri Jaydeep Patel

remained at Godhra till about 2358 hrs on 27-02-2002.

Enquiries further revealed that Shri M.L. Nalvaya, the

then Mamaldar & Executive Magistrate issued a letter

addressed to Dr. Jaydeep Patel of VHP, in which he had

mentioned that 54 dead bodies were being sent through five

trucks as detailed below:

Sr. No.

Truck No.

No of Dead bodies

carried

GJ-17-5055

GJ-17-T-7557

GJ-17-X-3225

GJ-16-T-9253

GJ-17-T-7327

(TATA 608

tempo)

One Shri Hasmukh T. Patel of Vishwa Hindu

Parishad had acknowledged the dead bodies. It may be

mentioned here that the handing over of the dead bodies to

their legal heirs/guardians was the duty of the railway

police, who had registered a case in connection with this

incident. Shri M. L. Nalvaya has stated that these dead

bodies were handed over officially to Shri Jaydeep Patel and

Shri Hasmukh T. Patel of VHP as per the instruction given

by Smt. Jayanti S. Ravi, DM and Late B. M. Damor, ADM,

Godhra. Shri M. L. Nalvaya has filed an affidavit before

Nanavati Commission of Inquiry to this effect on 05-09-

2009. However Smt. Jayanti Ravi has stated that no

such instructions were given to Shri Nalvaya to hand

over the dead bodies to Shri Jaydeep Patel or Shri

Hasmukh T. Patel of VHP and that Shri Jaydeep Patel

was merely to accompany the dead bodies to

Ahmedabad.

Shri Raju Bhargava, the then Superintendent of

Police, Godhra has stated that since, there was a curfew in

the town, he had arranged for four (4) mini trucks, Tata-

407 and one Tata-608 tempo for the transportation of the

aforesaid dead bodies. He also arranged for the police escort

with a pilot gypsy. Further, one Sub Inspector was sent in

gypsy with some other staff and two armed 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, the

247

escorts from the concerned districts had replaced each

other. The five trucks carrying dead bodies reached Sola

Civil Hospital, Ahmedabad between 0330 hrs to 0400 hrs

on 28-02-2002. At Sola Civil Hospital, Dr. Pushpa Belani,

Medical Superintendent, PI Lathiya of Sola P. S., Shri

Prajapati, Deputy Collector, Shri K. Srinivas, Collector and

several other Administrative and Police Officers were

present. Shri Jaydeep Patel handed over the letter to Shri

Prajapati, the then Dy. Collector and the police and the

administrative officials got busy with the preparation of

panchnama and other documentation. The relatives of the

persons, who had died in the Godhra carnage, were also

present in the hospital. Accordingly, 35 persons were

identified and their dead bodies handed over to their

relatives by about 1300 hrs on 28-02-2002 by the police

after obtaining receipts from them. It may be mentioned

here that 25 dead bodies were claimed by the residents of

Ahmedabad, 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 DNA samples of the remaining

unidentified 19 dead bodies were taken by the hospital

authorities. These 19 unidentified dead bodies were

cremated on 28-02-2002, at Gota cremation ground near

Sola Civil Hospital by the District Administrative and Police

officers with the help of Surpanch of Gota village, which is

situated on the outskirts of Ahmedabad city. The cremation

was completed by about 1830 hrs on 28-02-2002.

On 28-02-2002, twelve (12) charred dead bodies of

Godhra carnage were brought to Ramol, Ahmedabad City

from Sola Civil Hospital. All these deceased persons

belonged to Ramol-Khokhra area. Shri M.K. Tandon, Jt.

CP, Sector-II instructed Shri R.J. Savani, DCP, Zone-V to

make efforts to ensure that the dead bodies were moved in

vehicle and not by foot, as the same would have esoalated

the tension. It may be mentioned here that ten (10) kar-

sevaks belonged to Ramol and two (2) kar-sevaks were from

Khokhra. Shri R.J. Savani succeeded in persuading the

relatives and the well wishers of the deceased to take each

body in a vehicle and the funeral procession was guarded

by the police up to Hatkeshwar cremation ground, about 4

kms away from Ramol-Khokhra. The funeral was over by

about 1400 hrs. and the crowd which had gathered on the

highway dispersed thereafter.

248

It may thus be seen that the journey from Godhra

to Ahmedabad started around midnight and the dead

bodies reached Sola Civil Hospital sometime between

0330 to 0400 hrs and there was no one on the highway

at that point of time in the night to see them. Further,

though a letter had been addressed by Shri M.L. Nalvaya

in the name of Shri Jaydeep Patel of VHP and the dead

bodies were acknowledged by Shri Hasmukh T. Patel of

VHP, yet the dead bodies were escorted by the police

upto Sola Civil Hospital, Ahmedabad situated on the

outskirts of Ahmedabad City. At Sola Civil Hospital,

Shri Jaydeep Patel handed over the letter to the

hospital authorities and the local police as well as the

hospital authorities took charge of the dead bodies.

Subsequently, 35 dead bodies were handed to the legal

heirs/guardians of the deceased by the police after

completing the formalities and documentation. The 19

unidentified dead bodies were cremated quietly on the

same evening by the local administration and police

authorities at Gota cremation ground nearby with the

help of Sarpanch of Gota village after retaining their

DNA samples. Subsequently, 12 dead bodies could be

identified after conducting DNA tests, while the

remaining seven (7) remained unidentified.

The above facts would go to establish that though

a letter had been addressed by Mamalatdar, Godhra to

Shri Jaydeep Patel of VHP, yet the dead bodies were

escorted by the police from Godhra to Ahmedabad,

where the same were taken charge of by the hospital

authorities, District Administrative and Police Officers

and handed over to the kith and kin of deceased persons

after taking proper receipt. Further, the unidentified

bodies were disposed of by the District Administrative

and police officers. The fact that 25 deceased persons

belonged to Ahmedabad, 2 to Mehsana, 1 to Rajkot and

2 to Sabarkantha places accessible via Ahmedabad and

the same were claimed by their legal heirs/guardians at

Ahmedabad justifies the decision to transport the dead

bodies from Godhra to Ahmedabad. Shri P.C. Pande, the

then CP, Ahmedabad City has stated that there had been

no parading of dead bodies inasmuch as the trucks carrying

the dead bodies under police escort reached Ahmedabad

City between 0330 hrs to 0400 hrs on 28-02-2002, which

means they had started from Godhra at least three hrs

earlier and as such there was no one to see them on the

249

highway at dead of the night, Shri Pande has also stated

that in Ahmedabad City, the dead bodies were kept in Sola

Civil Hospital situated on the outskirts of the City and that

most of the dead bodies were handed over to their relations

after proper documentation by 28-02-2002 morning.

In view of the aforesaid discussions, the allegation

that CM's decision to bring the dead bodies of those

killed in Godhra carnage to Ahmedabad was with a view

to parade them in the City is not established. Further,

the allegation that the dead bodies were handed over to

Shri Jaydeep Patel, is also not established, inasmuch as

he only accompanied the dead bodies from Godhra to

Ahmedabad, and that the custody of the dead bodies

remained with the police escort and thereafter with the

Sola Civil Hospital Authorities, Administrative and

Police authorities. The allegation that the dead bodies

were transported to Ahmedabad against the wishes of

Smt. Jayanti Ravi is proved to be incorrect. Shri M.L.

Nalvaya Mamalatdar had acted in an irresponsible

manner by issuing a letter in the name Shri Jaydeep

Patel in token of having handed over the dead bodies,

which were case property, is being dealt with

departmentally for this lapse……”

(emphasis supplied)

While dealing with the allegation against the then Chief Minister in

this regard, the final report has analyzed the same in the following

words

139

: -

“…..

Despatch of dead bodies to Ahmedabad:

The allegations as mentioned in the complaint dated

08-06-2006 of Smt. Jakia Nasim are vague and general in

nature As regard the specific allegation of the decision to take

the dead bodies of Godhra train victims to Ahmedabad, it has

come in evidence that Shri Narendra Modi attended the

Assembly on 27-02-2002, when Shri Gordhan Zadafia the

then MoS (Home) made a brief statement about the Godhra

incident. The Chief Minister also informed the Assembly

139

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

250

that at a proposal for an ex-gratia payment of Rs. 2 lakhs

to each victim was under consideration of the Govt. As it

was a budget day, Chief Minister attended the Assembly

proceedings and left for Godhra thereafter. At the Godhra

Collectorate, after holding discussions, a unanimous

decision was taken that the dead bodies which had been

identified should be handed over to their relatives at

Godhra itself and those bodies whose legal heirs or

guardians had not come, could be sent to Sola Civil

Hospital. Ahmedabad, since they (deceased) were

scheduled to travel to Ahmedabad by Sabarmati Express.

It has further come to light that the decision to send the

bodies to Sola Civil Hospital was taken after taking into

account that the hospital was situated on the outskirts

of Ahmedabad City and thus away from the crowded area

for security reasons. It has also come to light that out of 58

dead bodies 4 bodies, belonging to Dahod, Vadodara,

Panchmahal and Anand Districts, were handed over to their

legal hears guardians after identification at Godhra itself. The

remaining 54 dead bodies were spent under police escort to

Sola Civil Hospital, Ahmedabad and Shri Jaydeep Patel of

VHP accompanied them. Smt. Jayanti Ravi, the then

Collector, Godhra has categorically denied that the decision

was taken against her wishes.

As regards the parading of dead bodies, it has come to

light that Shri M.L. Nalvaya, Mamlatdar, Godhra had issued

a letter dated 27.02.2002 addressed to Shri Jaydeep Patel, in

which it was mentioned that 54 dead bodies as per list

enclosed were being sent to Ahmedabad through five trucks

whose details were given in the said letter. It has further come

to light that trucks and escorts were arranged by SP, Godhra

and the convoy carrying the dead bodies left Godhra around

midnight, reached Sola Civil Hospital, Ahmedabad between

0330 hrs to 0400 hrs on 28.02.2002, and were taken charge

from Shri Jaydeep Patel by the Deputy Collector in present of

the Medical Superintendent, Police Inspector Sola P.S.,

Collector, DCP Zone-I and several other police and

administrative officials. It has further come to light that

around 35 identified dead bodies were handed over to their

relatives by about 1300 hrs on 28.02.2002. It has also

transpired that 25 dead bodies were that of the persons

belonging to Ahmedabad, 2 of Kadi-Mehsana, 5 of Anand, 2

of Sabarkantha and 1 of Rajkot. The remaining 19 dead

bodies remained unidentified and were cremated together on

28.02.2002, by the Hospital, District Administrative and

251

Police Officials on the same evening after retaining their DNA

samples in Gota cremation ground nearer to the hospital. The

12 dead bodies belonging to Ramol and Khokhra were taken

in vehicles and cremated at Hatkeshwar cremation

ground……”

(emphasis supplied)

The thrust of the opinion formed by the SIT upon analyzing the

relevant materials in connection with this allegation is that the

decision to carry the dead bodies from Godhra to Ahmedabad for

being handed over to their relatives, was a unanimous decision

taken at the Godhra Collectorate. This decision was taken as most

of the passengers were to travel to Ahmedabad and their relatives

had not reached or were unable to reach Godhra to collect their

bodies. It was also decided that bodies will be carried to Sola Civil

Hospital located on the outskirts of Ahmedabad City and thus away

from the crowded area for security reasons. Most of the dead bodies

(54 unclaimed at Godhra) were of persons who were ordinarily

residing in and around Ahmedabad. After the bodies were carried

to Ahmedabad hospital under police escort, 35 bodies could be

identified and came to be handed over to their relatives on

28.2.2002. The remaining 19 bodies were cremated together by

police and the civil administration on 1.3.2002. Out of these 19

dead bodies, 12 could be identified later by DNA test. Thus, the

252

entire exercise was within the control and supervision of the

administration and there was no parading of dead bodies, as alleged.

There was no undue haste in carrying the bodies including

cremation thereof. The essential protocol was substantially followed

in that respect. This opinion recorded by the SIT in its final report

is consistent with the circumstances and materials gathered during

the investigation. Suffice it to note that the allegation under

consideration is unfounded and has been rightly discarded by the

SIT.

58. The appellant had also placed emphasis on the allegations [No.

(v)] in the complaint about the Cabinet Ministers positioning

themselves in the City Police Control Room and issuing instructions,

to buttress their argument about State sponsored violence, as stated

in the affidavit filed by Mr. R.B. Sreekumar. This allegation has been

thoroughly enquired into by the SIT and analysis of the materials

can be discerned from pages 266 to 269

140

. The same reads thus: -

“…..

ALLEGATION No.V :

Cabinet Ministers I.K Jadeja and Ashok Bhat were

positioned in the DGP office and Ahmedabad City Control

Room respectively by CM.

140

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

253

During the course of enquiries into this allegation Shri

R. B. Sreekumar has stated that either on 1st or 2nd March,

2002, Shri K. Chakravarthi, had criticised the Govt. about the

positioning of Shri I.K. Jadeja in the DGP's office after the

Godhra incident and was feeling depressed, as the presence of

Minister in his chamber had adversely affected his supervision

of the riot situation. He also stated to have personally seen Shri

I.K. Jadeja, Cabinet Minister using the official telephone of the

DGP in his chamber.

Shri Ashok Narayan, the then ACS (Home) has stated

that on 28-02.2002, two high level meetings were called by the

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

evening, which were attended by him, acting Chief Secretary,

DGP and ADGP (Int.). In the meeting held in the morning, the

law & order situation was reviewed by the Chief Minister.

According to Shri Ashok Narayan, he does not recall any

instructions given by the Chief Minister to the DGP and CP,

Ahmedabad that Shri Ashok Bhatt and Shri I.K. Jadeja would

sit in the Ahmedabad City Police Control Room, Shahibaug and

State Control Room, Gandhinagar respectively and assist/help

the police in their operation.

However, Shri K. Chakravarthi has stated that he was

informed 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, to get information about the Law & Order situation in

the State, as the State Control Room was located in his office.

Shri Ashok Narayan also informed him that Shri Ashok Bhatt

would similarly sit in the Ahmedabad City Police Control Room

situated in the office of the CP, Ahmedabad City. On this Shri

K. Chakravarthi had told him that it would be better if the

Ministers get the information through Control Room in the

Home Department as he was bound to report all the

information to the Home Department. Thereupon, Shri Ashok

Narayan informed Shri Chakravarthi that no such facility was

available in the Home Department and therefore the

Ministers would visit their offices. Shri Chakravarthi has

further stated that Shri I.K. Jadeja visited his office on 28-02-

2002 (F.N.) and sat in his chamber for 15-20 minutes.

According to Shri Chakravarthi, he could not have much

conversation with him, as he remained extremely busy with

the telephone calls being received by him from the various

police officers. Shri Chakravarthi thereafter asked someone to

shift the Minister to an empty chamber in his office and this

254

was done. Shri Chakravarthi was not aware as to what Shri

Jadeja did in that room as he himself remained awfully busy

with the telephone messages and follow up actions with the

prevailing bandh situation in the State. Later, he came to know

that Shri Jadeja had left his office. Enquiries conducted by

Shri Chakravarthi with his Staff Officer and Officer of the State

Control Room revealed that there was no interference from Shri

Jadeja on the functioning of State Control Room on that day.

Shri Chakravarthi has also stated that to the best of his

knowledge, Shri Jadeja did not visit his office subsequently. As

regard the positioning of Shri Ashok Bhatt in Ahmedabad City

Control Room, Shahibaug, Shri Chakravarthi denied personal

knowledge and stated that CP, Ahmedabad City would be in a

better position to clarify that matter.

Shri Sanjiv Bhatt, the then DCI (Security) has claimed

that he had attended a meeting at CM's residence at 1030 hrs

on 28-02-2002 along with the DGP and ADGP (Int.). After the

meeting, he returned to his chamber on the second floor of

Police Bhavan at about 1100 hrs and shortly thereafter went

to meet the DGP on the first floor of the same building. When

he entered DGP's chamber he found that as instructed after

the conclusion of CM's meeting, two Cabinet Ministers of

Gujarat, namely, Shri Ashok Bhatt and Shri I.K. Jadeja had

already arrived and were sitting on a sofa-set in DGP's

chamber. He further stated that Shri G.C. Raiger the then

Addl. DG (Int.) and Shri Maniram, the then ADO (Law & Order)

were also present there. Shri Sanjiv Bhatt briefed the DGP and

after taking tea, he returned to his chamber. Shortly,

thereafter, Shri Sanjiv Bhatt happened to go to State Control

Room on first floor to collect some documents and saw Shri

I.K. Jadeja and· his supporting staff sitting in the chamber of

Dy. SP. Control Room. Finding this a little odd, Shri Sanjiv

Bhatt went to DGP and informed him that it would be improper

to permit outsiders in the State Control Room and asked him

whether the Minister and his supporting staff could be shifted

from the State Control Room. DGP agreed with his decision

and thereafter, Shri Sanjiv Bhatt again went to Control Room

and requested Shri I.K. Jadeja to accompany him as his

presence in the Control Room would hamper the smooth

functioning of the State Control Room during such a critical

period, whereupon the latter got up and followed him.

According to. Shri Sanjiv Bhatt, he took Shri Jadeja, Minister

to an empty chamber of Shri P. C. Thakur, the then IGP and

requested him to make himself comfortable and contact them

for any assistance/requirement. Shri Chaktavarthi was

255

informed about it. Shri Sanjiv Bhatt has also stated that

subsequently he learnt that Shri Jadeja left the Police Bhavan

sometime in the afternoon, after having lunch. Shri Sanjiv

Bhatt was not aware about presence of Shri Jadeja in the

Police Bhavan on the subsequent days, but he recollects that

the some of the supporting staff of Shri Jadeja was seeking

certain information from the State IB on that day and on

subsequent two or three days.

However, this version of Shri Sanjiv Bhatt is

contradicted from the call detail records of his Govt.

mobile phone no 9825049398, which shows that on

28.02.2002, he remained at Ahmedabad till 1057 hrs at his

residence and as such he could not have attended a

meeting at CM's residence at 1030 hrs as claimed by him.

Similarly, his claim of having seen Shri I.K. Jadeja, the

then Minister around 1100 hrs in DGP's office is also

falsified from the call detail recods of his mobile phone in

asmuch as he could not have reached DGP office,

Gandhinagar before 1130 hrs from his residence 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 him to remain present in the DGP's office in Police

Bhavan, Gandhinagar to see that in case any information is

received in the Control Room about any rioting incident or

request is received for extra police force or any other issue of

importance then the same should be passed on the DGP, Home

Minister etc. In view of this request, he remained present in

the office of DGP Shri K. Chakravarthi for 3-4 hrs for next 3/4

days. However, he does not recollect as to what work was done

by him, but in case some information was received about some

incident from the party workers/common man, the same was

passed on to the DGP for necessary action. He has denied to

have contacted/instructed any of the police officers over

telephone installed in the office of the DGP to take action in a

particular manner. He has categorically stated that he did

not interfere with the work of the DGP or disturb the police

officers in the discharge of their official duties. He does

not remember to have used the telephone installed in

DGP's office. He has also stated that the DGP had not

shared any information with him and therefore, he had left

the Police Bhavan within few minutes on subsequent

occasions.

256

Shri P. C. Pande, the then CP, Ahmedabad City has

stated that it was incorrect to say that Shri Ashok Bhatt, the

then Health Minister was stationed at Shahibaug Control

Room on 28-02-2002 to guide the police force in controlling the

Law & order situation. He has further stated that Shri George

Fernandes, the then Union Defence Minister visited

Ahmedabad on 0l-03-2002 and came to CP office to find out as

to whether Army had been deployed in the State or not. Shri

Fernandes reached CP's office around l000 or l030 hrs and

asked Shri Pande about the deployment of Army, to which

latter said that they could check up from the Control Room.

Both of them went to the Control Room downstairs. According

to Shri Pande, Shri Ashok Bhatt, who had been waiting for Shri

Fernandes in the circuit House, also came to CP's office to meet

Shri Fernandes and entered the Control Room Shri Pande has

also stated that Shri Fernandes and Shri Ashok Bhatt

remained in the Control Rooh1 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 as such it was somehow made to appear that Shri

Ashok Bhatt had come to monitor the Control Room. Finally,

Shri Pande has stated that Shri Ashok Bhatt was never

deputed to Shahibaug Police Control Room to guide or advise

the police.

According to Shri Ashok Narayan he does not recall

instructions given by the Chief Minister, which were conveyed

by him either to the DGP or CP, Ahmedabad City to the effect

that Shri Ashok Bhatt and Shri I.K. Jadeja would sit in the

Ahmedabad City Police Control Room, Shahibaug and State

Control Room, Gandhinagar respectively and assist/help the

police.

Late Ashok Bhatt had earlier stated that he might have

visited Ahmedabad City Control Room for about 5-10 minutes

on 28-02-2002. However, he has denied to have interfered with

the police work, as being a senior minister he had to maintain

his dignity and status. Again on 01-03-2002, he admitted to

have visited the Shahibaug Control Room for about 10 minutes

to meet Shri George Fernandes, who had gone to CP's office.

The call detail records of Govt. mobile phone no. 9825039877

of Late Ashok Bhatt show that he returned from Godhra to

Ahmedabad on 28-02-2002, at about 05:16:51 hrs. Thereafter,

the call details do not show its location till 15:50:43 hrs on 28-

02-2002, when the location was traced to Koba Circle,

257

Gandhinagar. During this period, it is presumed that he was

at Gandhinagar. His location on 28-02-2002 at 16:16:37 hrs

to 17:47:22 hrs was shown as Shahibaug Kedar Tower,

Ahmedabad City, which would conclusively prove that during

this period he attended CM's press conference at Circuit 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. It may thus be seen that these call details would

conclusively go to established that Late Ashok Bhatt did not

visit Shahibaug Police Control Room on 28-02-2002. It would

not be out of place to mention here that the matter was more

than seven years old, when Late Ashok Bhatt and others were

questioned and as such the documentary evidence is to be

relied upon instead of depending upon the memory of the

different individuals, who have given different versions.

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 at 0800 hrs, has stated that

Shri George Fernandes, the then Union Defence Minister and

Shri Harin Pathak, the then MoS for Defence, had come to

Police Control Room, Ahmedabad City at 1005 hrs. on 01-03-

2002, and left at 1025 hrs. He has confirmed that wireless

message in this regard to be under his signatures. He has

denied knowledge about the visit of Late Ashok Bhatt, the then

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 denied the visit of

Late Ashok Bhatt, the then Health Minister to the Ahmedabad

City Police Control Room either on 28-02-2002 or 01-03-2002.

Shri Parbatsinh A. Dholetar, the then PSI, Ahmedabad

City Police Control Room, who was on duty on 28-02-2002

from 0800 hrs to 1200 hrs and 2000 hrs to 2400 hrs, has

denied the visit of any Minister to the Police Control Room.

Shri Maganbhai M. Limbachia the then PI, who was on

duty from 0800 hrs to 2000 hrs on 01-03-2002 in State Police

Control Room, Police Bhavan Gandhinagar, has denied the

visit of any Minister in the Control Room.

It may thus be seen that Shri K. Chakravarthi has

categorically stated that Shri I.K. Jadeja did visit his

office, but did not go to the State Control Room and he

258

was made to sit in an empty chamber. Shri I.K. Jadeja

himself has confirmed that he shifted to an empty

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 Jadeja did not interfere with

their work.

Shri I. K. Jadeja has taken the plea that it is an

established practice in Gujarat State that in case of any

natural calamities or serious law & order situation the

Ministers of the various departments extend their help in

handling the crisis. No material is available to rebut his

plea. Late Ashok Bhatt had admitted earlier that he might have

visited Ahmedabad City Police Control Room on 28-02-2002

for a few minutes, but the call detail records of his' official

mobile phone show his location at Shahibaug Kedar Tower

between 16:16:37 and 17:47:22 on 28-02-2002, when he

attended CM's press conference. This was conclusively proved

that he did not visit the Police Control Room on 28-02-2002.

Moreover, the officials of Ahmedabad City Police Control Room

have denied that Late Ashok Bhatt ever visited the said Control

Room either on 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 with the working of the police and the

DGP also did not share any information with him. Further,

it could not be established that Late Ashok Bhatt visited

Ahmedabad City Police Control Room either on 28-02-

2002 or 01-03-2002. As per his own admission, he might

have visited the Control Room for a few minutes on 28-02-

2002 and/or 01-03-2002. Therefore, the allegation that

the two Ministers were positioned in the State Control

Room and Ahmedabad City Police Control Room by the

Chief Minister, is not fully established Significantly, Shri

I.K. Jadeja remained at State Police headquarters for 2/3 hrs

as per his own admission but did not interfere in the police

functioning. Late Ashok Bhatt's presence in the City Police

headquarters on the relevant day, if any, was very negligible

and it can not be termed of any material value. In the absence

of documentary/oral evidence of any directions by those

two Ministers to police officials, it can not be said at this

stage that they conspired in the perpetration of riots or

took any action for controlling the riots……”

(emphasis supplied)

259

Again, while dealing with the allegations in the complaint against the

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 a decision to allow

Shri Ashok Bhatt, the then Health Minister and Shri I. K.

Jadeja, the then Minister of Urban Development and Urban

Housing to sit in Ahmedabad City police Control Room and

State Control Room respectively. Shri K. Chakravarthi, the

then DGP, has stated during further investigation that Shri

Ashok Narayan, ACS (Home) informed him that it was decided

by 'the Govt. that Shri I.K. Jadeja, the then Minister would be

in his office to secure some information about the law & order

situation in the State, as the State Control Room is situated in

DGP's office Shri Ashok Narayan had further informed him

that Late Ashok Bhatt, another Minister, would sit in

Ahmedabad City Police Control Room. Shri Chakravarthi has

further stated that he had his own reservations in this matter

and therefore, he advised the ACS (Home) that it would be

better, if these Ministers got the information from the Control

Room in the Home Department. However, Shri Ashok Narayan

informed him that no such facility was available with him in

the Home Department and, therefore, the two Ministers would

come to the respective Control Rooms.

According to Shri Chakravarthi, Shri I. K. Jadeja, the then

Minister came to his office in the forenoon of 28-02-2002 and

sat in his chamber for about 15-20 minutes. Shri Chakravarthi

could not attend to him, as he was extremely busy with the

telephone calls being received by him from all over the State.

As per his recollection, he had asked someone to shift the

Minister to an empty chamber in his office and this was done.

He has also stated that he was not aware as to what Shri

Jadeja did while he was in the DGP's office as he was extremely

busy with his work on 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 with the staff of the State

141

pages 339-341 of original copy of the final report forming part of Convenience Compilation of respondent No. 2

260

Control Room had revealed that Shri Jadeja did not interfere

with the functioning of the Control Room in any manner. ·

Shri P. C. Pande, the then CP, Ahmedabad City, has stated

that it was incorrect to say that Shri Ashok Bhatt, the then

Health, Minister remained stationed at Shahibaug control

Room on 28-02-2002, to guide the police force in controlling

the law & order situation. He specifically asserted that Shri

Bhatt did not visit CP's office Control, Room on 28.02.2002. He

has further stated that Shri George Fernandes, the then Union

Defence Minister arrived at Ahmedabad on 28-02-2002 night.

Shri Fernandes reached CP's office on 01-03-2002 around

1000 or 1030 hrs. and asked Shri Pande about the deployment

of Army, to which the latter said that he would check up the

same from the Control Room. Both of them went to the Control

Room downstairs. According to Shri Pande, Shri Ashok Bhatt

who had been waiting for Shri Fernandes in the Circuit House,

also came to CP's office to meet Shri Fernandes and entered

the Control Room. Shri Pande has also stated that Shri

Fernandes and Shri Ashok Bhatt remained in the Control

Room for about ten minutes and then left CP's office. According

to Shri Pande during this to the Control Room, some of the

press and media persons were also present, and as such it was

somehow made to appear that Shri Ashok Bhatt had come to

monitor the control Room. Finally, Shri Pande has stated that

Shri Ashok Bhatt was never deputed to Shahibaug Police

control Room to assist the Police.

According to Shri Ashok Narayan, he does not recall any

instructions given by Chief Minister, which were conveyed by

him either to the DGP or Ahmedabad City to the effect that Shri

Ashok Bhatt and Shri I. K. Jadeja would sit in the Ahmedabad

City police Control Room, Shahibaug and state Control Room,

Gandhinagar respectively and assist/help the police.

Shri I. K. Jadeja, the then Urban Development Minister

has stated that it was an established norm in Gujarat State

that in case of any natural calamities or serious law & order

situation, the Ministers of various departments extend their

help in handling the crisis. According to his recollection on 28-

02-2002, he had volunteered himself, if tie could be of any help

in the prevalent situation, to which Shri Gordhan Zadafia, the

then MoS (Home) had told him to remain present in the Police

Bhavan and to see that in case any information was received

in the State Control Room about any rioting incident and any

information was received seeking extra police force, then the

same should be passed on to the Home Department.

261

Consequent to these instructions he went to DGP's office

around 1100 hrs. and stayed there for 2-3 hours. He has gated

to have interacted with the DGP and informed him that if and

when his help was required he could ask him. He has denied

to have entered the State Police Control Room and has state

that there was no question of any interference. However, Shri

Gordhan Zadafia, the then MoS (Home) has denied to have any

given any suggestion to Shri I.K. Jadeja. Shri Jadeja has

further stated to 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 the DGP had not shared any information with

him and therefore, he left Police Bhavan in a few minutes on

both these occasions.

Late Ashok Bhatt had earlier stated that he might have

visited Ahmedabad City Control Room for about 5-10 minutes

on 28-02-2002. However, he has denied to have interfered with

the police work, as being, a senior minister, he had to maintain

his dignity and status. Again on 01-03-2002, he admitted to

have visited the Shahibaug Control Room for about 10 minutes

to meet Shri George Fernandes, who bad gone to CP's office,

The call detail records of mobile phone no 9825039877 of Late

Ashok Bhatt show that he returned from Godhra to

Ahmedabad on 28-02-2002, at about 05:16:51 hrs. Thereafter,

the call details do not show his location till 15:50:43 hrs. 0n

28-02-2002, when the location was traced to Koba Circle,

Gandhinagar. During this period, it is presumed that he was

at Gandhinagar. His location on 28-02-2002 at 16:16:37 hrs.

17:47:22 hrs. was show as Shahibaug Kedar Tower,

Ahmedabad City, which would conclusively prove that during

this period he attended the CM’s press conference, at Circuit-

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 Shahibaug Police Control Room on 28-02-2002.

Shri Sanjiv Bhatt, the then DCI (Security) has stated that

he had attended a meeting at the CM's residence on 28-02-

2002 morning along with the DGP and ADGP (Int.). After the

meeting, he returned to his chamber on the second floor of

Police Bhavan at about 1100 hrs. and shortly thereafter went

to meet the DGP on the first floor of the same building.

According to Shri Bhatt, when he entered DGP's chamber he

found that as instructed after the conclusion of CM's meeting,

two Cabinet Ministers of Gujarat, namely, Shri Ashok Bhatt

262

and Shri I. K. Jadeja had already arrived and were sitting on a

sofa-set in DGP's chamber. He further stated that Shri G.C.

Raiger, the then Addl. DG (Int.) and Shri Maniram, the then

ADG (Law & order). were also present there. Shri Sanjiv Bhatt

briefed DGP and after taking tea, he returned to his chamber

Shortly thereafter Shri Sanjiv Bhatt happened to go to State

Control Room on first floor to collect some documents and saw

Shri I. K. Jadeja and his supporting staff sitting in the chamber

of Dy. SP, Control Room. Finding this a little odd, Shri Sanjiv

Bhatt went to DGP and informed him that it would be improper

to permit outsiders in the State Control Room and asked him

whether the Minister and his supporting staff could be shifted

from the State Control Room. DGP agreed with his decision

and thereafter, Shri Sanjiv Bhatt again went to Control Room

and requested Shri I.K. Jadeja to accompany him as his

presence in the control Room would hamper the smooth

functioning of the state Control Room during such a critical

period, whereupon the latter got up and followed him.

According to Shri Sanjiv Bhatt, he took Shri Jadeja, Minister

to the chamber of Shri P.C. Thakur the then IGP, which was

vacant at that time and requested him to make himself

comfortable and contact them for any assistance/requirement.

Shri Chakravarthi was informed about it. Shri Sanjiv Bhatt has

also stated that subsequently he learnt that Shri Jadeja left

the Police Bhavan sometime in the afternoon, after having

lunch Shri Sanjiv Bhatt was not aware about the presence of

Shri Jadeja 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 at 0800 hrs. has stated that Shri George

Fernandes the then Union Defence Minister and Shri Haren

Pathak, the then MoS for Defence had come to Police Control

Room Ahmedabad City at 1005 hrs. on 01.03.2002, and left at

1025 hrs. He has confirmed the wireless message in this

regard to be under his signatures. He has denied knowledge

about the visit of Late Ashok Bhatt, the then Health Minister

to the Police Control Room either on 28.02.2002 or

01.03.2902. Shri V.R. Patel, the then PSI on duty in the Police

Control Room has also denied the visit of Late Ashok Bhatt,

the then Health Minister to the Ahmedabad City. Police Control

Room either on 28.02.2002 or 01.03.2002. Shri Parbatsinh A.

Dholetar, the then PSI Ahmedabad City Police Control Room,

who was on duty on 28.02.2002 from hrs. to 1200 hrs. and

263

2000 hrs. to 2400 hrs. has denied the visit of any Minister to

the Police Control Room.

Shri Maganbhai M. Limbachia, the then Pl, who was on

duty from 0800 hrs. to 2000 hrs. on 01-03-2002 in State Police

Control Room, Police Bhavan Gandhinagar, has denied the

visit of any Minister in the Control Room.

In view of the aforesaid position, is established that

Shri I. K. Jadeja did visit DGP's office, but did not go to the

State Control Room and he was made to sit in a vacant

chamber. Shri I. K. Jadeja himself has confirmed that he

was shifted to a 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 Jadeja

did not interfere with their work.

Shri I.K. Jadeja has taken the plea that it is an

established practice in Gujarat State that in case of any

natural calamities or a serious law order situation, the

Ministers of the various departments extend their help in

handling the crisis. Late Ashok Bhatt had admitted earlier

that he might have visited Ahmedabad City Police Control

room on 28.02.2002 for a few minutes, but the call detail

records of his official mobile phone show his location at

Shahibaug Kedar Tower between 16:16:37 and 17:47:22 on

28.02.2002, when he attended CM’s press conference,

which would conclusively prove that he did not visit the

Police Control Room on 28.02.2002. Moreover, the

officials of Ahmedabad City Police Control Room have

denied that Late Ashok Bhatt ever visited the said Control

Room either on 28.02.2002 or 01.03.2002. It is, therefore,

established that Shri I.K. Jadeja did visit DGP’s office, but

did not enter the State Control Room or interfere with the

working of the police and the DGP also did not share any

information with him. Further, it could not be established

that late Ashok Bhatt visited Ahmedabad City Police

Control Room either on 28.02.2002 or 01.03.2002. As per

his own admission, he might have visited the control

Room for a few minutes on 28.02.2002 and/or 01.03.2002.

Significantly, Shri I.K. Jadeja remained at State Police

headquarters for 213 hours as per his own admission but

did not interfere in the police functioning. Late Ashok

Bhatt’s presence in the City Police headquarters on the

relevant day, if any, was very negligible and cannot be

termed of any material value.

264

Shri Narendra Modi has totally denied that such a

decision was taken by him. He has denied any personal

knowledge about the visit of these two Ministers to the

respective Control Rooms. It may thus be seen that both

the Ministers did visit the respective Control Rooms, but

there is no evidence to prove that they interfered with the

law & order situation. Nor is there any evidence to indicate

that they visited the two control rooms at the direct

instance of Chief Minister. Since there is nothing to prove

that these Ministers interfered or gave any direction in

maintenance of law and order, no offence is made out.

Further, in the absence of documentary/oral evidence of

any directions by those two Ministers to police officials, it

can not be said at this stage that they conspired in the

perpetration of riots or took any action for controlling the

riots……”

(emphasis supplied)

59. The learned Amicus Curiae had recorded observations in regard

to this allegation [No. (v)], as follows: -

“

V. That

Cabinet

Ministers

Shri I. K.

Jadeja and

Shri Ashok

Bhatt were

positioned in

DGP's office

and

Ahmedabad

City Control

Room on 28-

02-2002.

SIT concludes

that this was a

“Controversial

decision” taken by

the Govt. to place

two ministers in

the DGP’s office

and Ahmedabad

City Control

Room. However,

SIT concludes

that there is no

evidence that the

2 ministers

passed on any

instructions to

the police to deal

with riots in

particular

manner.

Therefore, the

8. The positioning of 2 Cabinet

Ministers having nothing to do with

the home portfolio in the Office of

DGP and the State Police Control

Room respectively is another

circumstance which reflects that

there was a direct instruction from

the Chief Minister. Though Shri

Jadeja says that he had gone to the

DGP’s office on instructions of Shri

Gordhan Zadafia, MoS (Home) this

is highly unbelievable. It is obvious

that the Chief Minister had

positioned these 2 Ministers in

highly sensitive places which

should not have been done. Infact,

these 2 Ministers could have taken

active steps to defuse the riots, but

they did nothing, which speaks

volumes about the decision to let

the riots happen. It does not appear

265

allegation is only

partially proved

as per SIT

that these 2 Ministers immediately

called the CM and told him about

the situation at Gulberg and other

places.

9. SIT merely relied upon the

statement of the police officers to

conclude that these 2 Ministers did

not give any instructions to Police

department, but it appears highly

unlikely that 2 cabinet Ministers of

the Government of Gujarat would

have not given some kind of

directions when the CM had

directed them to remain present.

10. It is obvious that the 2 Ministers

were fully aware of the developing

situation in Gulberg Society,

Naroda Patiya etc. In Ahmedabad

City. They were duty bound to

convey the situation to the Chief

Minister and were required to do

everything possible to save loss of

lives. If the stand of the CM that

these 2 Ministers were positioned so

as to effectively control the law and

order situation is correct, then there

would have been a far quicker

action to control the riots in Gulberg

Society and Naroda Patiya atleast.

11. No tangible action seems to have

been taken by the police high ups in

the Police Department, namely

Commissioner of Police, to control

the riots at Gulberg Society.

Gulberg Society is not very far away

from the Office of Commissioner of

Police, Ahmedabad.”

These observations have been dealt with by the SIT at pages 434-

439

142

, being part of Annexure-1 to this judgment. The analysis

142

pages 434-439 of original copy of the final report forming part of Convenience Compilation of respondent No. 2

266

done by the SIT after further investigation in respect of allegation

under consideration commended to the Magistrate, as well as, the

High Court. We find no reason to deviate from the said opinion or

the view taken in that 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 tower

details of Ahmedabad and Godhra, the efficacy thereof has not been

reckoned in proper perspective. It would reveal the nexus between

the BJP leaders and police officers during riots. This aspect has not

been investigated by the SIT. The allegation No. (xxiii) culled out by

the SIT in this regard has been analyzed at pages 310-312

143

and

again in reference to the observations made by the learned Amicus

Curiae, at page 456

144

. The SIT, after investigation, eventually

opined that the CDs collected by Mr. Rahul Sharma from M/s.

Cellforce were copied by him on his personal computer kept at home

and operated multiple times; and was unable to produce the original

received from the original source (cell company). Further, when the

SIT wanted to verify the mobile phones of suspected/accused

143

pages 310-312 of original copy of the final report forming part of Convenience Compilation of respondent No. 2

144

page 456 of original copy of the final report forming part of Convenience Compilation of respondent No. 2

267

persons, the cell companies informed that the data was not

retained/available due to efflux of time. The SIT analyzed all the

aspects in respect of this allegation as follows

145

: -

“…..

ALLEGATION No. XXIII:

The CD regarding telephone calls by BJP leaders and

police officers during riots was not probed into by the

Investigating Officers of the Naroda-Patiya and Gulberg

Society cases. The CD was produced by Rahul Sharma,

SP, CBI before the Nanavati Commission.

Enquiries revealed that Shri Rahul Sharma was posted

as DCP, Control Room, Ahmedabad City on 08.04.2002. On

07.05.2002, Shri Rahul Sharma had been instructed by the

then Commissioner of Police, Ahmedabad City, Shri P.C.

Pande to report to the Crime Branch, Ahmedabad City and

assist the then Additional CP, Crime Branch, Shri A.K.

Surolia in the investigation of serious riot-related offences.

Shri Rahul Sharma was also informed by Shri P.C. Pande

that there would be no formal written order in this regard.

Accordingly, Shri Sharma reported to Shri Surolia on the

same afternoon. As a matter of prudence, he decided to

collect scientific evidence in support of the investigation that

was undergoing. Shri Rahul Sharma has stated that he had

information about the use of mobile phones in a big way in

the alleged riots throughout the State including Ahmedabad

City. Accordingly, he drafted à letter calling for data from two

mobile phone service providers provider's ‘Cellforce’ (now

Vodafone) and ‘AT&T’ (now Idea). The letters were issued

under the signature of the then ACP, Crime Branch, Shri.S.S.

Chudasama, who was also investigating the two serious

cases of massacres at Naroda Patiya and Gulberg Society.

According to Shri Rahul Sharma the information asked for,

was the telephone directory of the two mobile phone

companies, calling time called/calling number, location of

the mobile phone when they were calling/receiving the calls,

etc, for the period from 25.02.2002 to 04.03.2002 in respect

of all mobile phones operating from Ahmedabad city area.

Shri Rahul Sharma has further stated that the idea behind

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268

the collection of this data was, amongst others, to establish

the location of the alleged perpetrators of crime and their

accomplices at the time of commission of the offence.

Further, it was also required to prove the contact established

between the different accused persons as also with ‘erring’

policemen, bureaucrats and politicians.

In response to the letter sent by Shri Chudasama, data

was sent in the correct format by ‘AT&T’ within a week on a

CDR. Shri Rahul Sharma has further stated that he had

personally gone to collect the said information from AT&T

from their office in Suman Towers in Gandhinagar. The data

provided by AT&T was in the “TEXT” format and had all the

relevant information that had been asked for. Shri Rahul

Sharma copied out the data on his computer kept at his

home and the CD was returned to Shri Chudasma. This

copying was required to be done, if the data from the two

mobile phone companies were to be analysed together.

Shri Rahul Sharma has further stated that the data from the

‘Celforce’ was sent quite late and by that time probably Shri

A. K. Surolia had been sent on deputation to BSF and Shri

P.P. Pandey taken over as the Joint CP, Crime Branch. As per

the recollection of Shri Rahul Sharma, the information

from the AT&T had come, while Shri Surolia was in-

charge of the Crime Branch, but the information from

‘Celforce’ had not come during Shri Surolia's tenure

According to Shri Rahul Sharma, the information from

the ‘Celforce’ came during Shri Pandey's tenure as the

Joint CP, Crime Branch, Ahmedabad City Police, but the

data was sent as an MS Access database. Since, Shri

Rahul Sharma had no knowledge of MS Access; he took

the assistance of PSI Shri K.J. Chandana, who was in the

computer section of Ahmedabad Police

Commissionerate. Shri Rahul Sharma has further stated

that Shri Chandana used to open the files before him in

the computer kept in his office. Initially, the data sent

was not as had been requested for and the correct data

could be obtained only after several attempts. On all these

occasions, it was Shri Chandana who usually went to the

office of the ‘Celforce’ to get the correct data.

As per Rahul Sharma, the final CDR containing the

data was not received through Shri Chandana, but was

forwarded to him by Shri P.P. Pandey through a DO Letter

written in Gujarati. In the DO letter, he had mentioned that

the CDs had been prepared under his (Rahul Sharma's)

269

instructions and that he alone should analyse the data. Shri

Rahul Sharma has further stated that ‘Celforce’ had also

furnished data in respect of mobile phones operating from

Godhra though the same had not been called for. According

to Shri Rahul Sharma, after a few days of the receipt of this

letter, he was transferred out and posted as the

Commandant, SRPF, Group XI, Vav, District Surat. Shri

Rahul Sharma does not remember, whether the CDs sent

by ‘Celforce’ were two in number or one in number, but

given the volume of data received from Celforce, he

believes that there should have been two CDs. Shri Rahul

Sharma has further stated that he had no knowledge of

MS Access at that particular point of time, due to which

he could not analyse or interpret the contents of the CDs.

However, he has admitted to have copied the contents of

the CD(s) sent by ‘Celforce’ onto the hard disk of his

personal computer kept at home.

Shri Rahul Sharma has further stated that after he

received his transfer orders in the first week of July, 2002, he

instructed, Shri Chandana, PSI to deliver the original CD(S)

personally to Shri P.P. Pandey. As per Shri Rahul. Sharma,

Shri Chandana, PSI visited the Jt. CP's office a couple of

times, but did not find Shri Pandey and, therefore, he came

back with the CD(s). During this period the CD(s) remained

in the possession of Shri Chandana. Shri Rahul Sharma has

also stated that on probably the second last day of his tenure

as the DCP, Control Room, he had called a Rider from Control

Room, took the CD(s) from Shri Chandana and 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 this fact to him.

Shri Rahul Sharma is not in a position to identify the

‘Rider’ after so many years. He has also stated that at

that particular time, his PA was on leave on account of

his son's marriage and, therefore, he could not the CD(s)

through a formal letter.

Shri Rahul. Sharma has reiterated that he never

analysed the information contained in the CDs while

posted as DCP, control Room and learnt basic MS Access

only in 2004 after he joined the CBI on deputation. He

has also stated that it was a practice in Gujarat Police to keep

a copy of Case Diaries and other important documents of

cases that had been investigated/Supervised by an officer.

Consistent with this practice, he wanted to keep a copy of the

270

CD(s) data that had been copied onto his home computer's

hard disk. He also wanted to have the data on one CD for

compactness. He had, therefore, consulted Shri Chandana is

this regard and who in turn had advised him ‘zip’ the files, so

that they would be compressed. He did accordingly and

data from the CDs sent by ‘AT&T’ and ‘Celforce’ was

copied on single CD, which he retained. He burnt the

information on the CD Writer installed onto his computer

himself.

Shri Rahul Sharma has also stated that he submitted

copies of the same CD(s) containing the zipped data to the

Nanavati-Shah Commission of Inquiry (two copies) on 30-10-

2004, at the time of his deposition/cross examination and to

the Banerjee Committee (one copy) on 22-11-2004 at the time

of his examination. The original CD first prepared by him was

handed over to the SIT 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 that Shri Rahul Sharma has

produced copy of the CD(s) before the commission as well as

Committee.

Shri Tarun Barot, the then Police Inspector, Crime

Branch Ahmedabad City and now ACP, Special Operation

Group, Ahmedabad has stated that he was entrusted with

the investigation of Naroda P.S. cr no. I98/02 relating to the

death of 11 Muslims killed in 2002 riots and that he had

investigated this case from 19-05-2002 to 30-05-2002 and

subsequently with effect from 30-11-2002 to 10-04-2008.

Shri Barot has further stated that during the course of

investigation, he had made an attempt to collect the call

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 call details as he did not know that the

latter was in the possession of the call details of all the

numbers operating from Ahmedabad City during the riots

period and no one had told him about it. According to Shri

Barot, he did not know whether Shri Rahul Sharma, SP had

handed over a copy of the CDs to Nanavati-Shah Commission

of Inquiry or Banerjee Committee appointed by the Railways

to enquire into the Godhra incident. Shri Barot has also

stated that a news item had appeared in an English daily

regarding the mobile phone details of Maya Kodnani and

271

Jaydeep Patel and on the basis of the said news item, both of

them were summoned and interrogated about their location

on 28-02-2002 and thereafter. Both Mayaben Kodnani and

Jaydeep Patel informed that they were present at Sola Civil

Hospital. Shri Mayaben Kodnani confirmed 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 mobile service

providers, but the same were not provided and as such the

call details could not be obtained, analysed and cross

checked. The plea put forward by Shri Barot is not

convincing inasmuch as the news about the production

of the CDs containing call detail records of mobile phones

at Ahmedabad City by Shri Rahul Sharma before the

Commission had appeared in almost all the newspapers

and therefore it is difficult to believe that Shri Barot did

not come to know about it.

Shri GL. Singhal, SP, ATS, who remained the IO of

Gulberg Society case and Naroda Patiya case, has stated that

he did not investigate into the call details records of the

mobile phones as well as landline details of the accused

persons or any other person connected with these cases. He

has admitted that he came to know about the production of

the CDs containing the call details of the various calls

made/received from the mobile phones Ahmedabad City by

Shri Rahul Sharma before the Nanavati-Shah Commission of

Inquiry and Banerjee Committee, but did not approach him

to get the copies of CDs containing the CDRs of mobile

phones. He has further admitted that he did not approach

the cell phone service providers to get the call detail records

of the cell phones operating from Ahmedabad City from 27-

02-2002 onwards. He has stated to have interrogated Dr.

Mayaben Kodnani, MLA and Jaydeep Patel, a VHP activist in

Naroda Patiya case about their locations on 28-02-2002, but

they had denied their presence on the spot at the time of

incident. He has also stated that he could not confront them

with their call details, as the same were not available with

him.

This appears to be an intentional lapse on the part of Shri

Tarn Barot, the then PI and now ACP, SOG, Ahmedabad and

Shri G.L. Singhal, the then ACP, Crime Branch and now SP,

ATS, Ahmedabad and the same deserves to be dealt with

272

major penalty departmental proceedings against them.

However, no criminal offence is made out against them……”

(emphasis supplied)

In other words, the SIT due to lapse of time, was not in a position to

verify the authenticity of the CDs regarding telephone calls produced

by Mr. Rahul Sharma and in any case, the call history by itself would

not have been sufficient to suspect commission of any offence, much

less of hatching larger criminal conspiracy, which was required to

be investigated by the SIT. The opinion formed by the SIT on the

basis of available materials collected during investigation

commended to the Magistrate, as well as, the High Court. That view

needs no departure.

61. In other words, there is no merit in the argument of the

appellant that the SIT had failed to collect the call records of the

accused persons, not analyzed the available call records from CD

supplied by Mr. Rahul Sharma and failed to seize the phones of

persons involved. In that, the events had unfolded in the year 2002

and the SIT was constituted only in the year 2008 by this Court to

look into and enquire into the complaint of appellant, dated

8.6.2006. During the contemporary period (year 2002), two mobile

operators were providing services in the Gujarat State, namely, M/s.

273

AT&T and M/s. Cellforce, who had the protocol of maintaining the

electronic call records for one year only

146

. This fact has been noted

in the statement of Mr. Viraf Fanibanda – Head Legal Advisor, Idea

Cellular and of Mr. Dhiren Jayantilal Laria – Legal department,

Vodafone, recorded by SIT on 28.11.2008. These statements,

though crucial, have not been adverted to by the appellant.

Resultantly, it was not possible for the SIT to retrieve the call records

from these service providers after its appointment in the year 2008.

It is, therefore, not a case of failure of the SIT to collect the call detail

records of various persons referred to in the details discernible from

the record submitted by Mr. Rahul Sharma.

62. Insofar as the CD record submitted by Mr. Rahul Sharma, as

aforesaid, he had failed to handover the case property to the

investigating officer (of Naroda police station), dealing with the

concerned case nor got it entered in the register of case property

(Muddamal) or informed the Court of jurisdiction about seizure of

146

‘License Agreement for Provision of Unified Access Services’ provide as under:

“The LICENSEE shall maintain all commercial records with regard to the

communications exchanged on the network. Such records shall be

archived for at least one year for scrutiny by the Licensor for security

reasons and may be destroyed thereafter unless directed otherwise by

the licensor.”

274

such case property. He had instead produced the CD on 31.5.2008,

which came to be seized by the investigating officer and taken as

evidence. These two CDs were collected by the investigating officer

from the records of Nanavati-Shah Commission of Enquiry. Mr.

Rahul Sharma had submitted the same before the Commission.

Additionally, one CD containing the same information was

submitted by Mr. Amresh Bhai N. Patel, Jansangharsh Manch,

which was obtained by him from the Commission of Enquiry. That

was also produced before the investigating officer. In absence of the

original CDs which were never produced by Mr. Rahul Sharma, it

was not possible for the SIT to obtain the certificate of authenticity

under Section 65B of the Indian Evidence Act, 1872 and at the same

time, it had been noticed that the CDs were copied by Mr. Rahul

Sharma in his computer and format changed, by changing it in

Zipped format. The SIT has analyzed all these aspects and opined

that MD5 Hash value of the files in all the three CDs was found same.

Further, the files containing call detail records or fragments of the

files could not be found on the computer storage media. Moreover,

due to lapse of time, no fruitful purpose would have been served in

seizing the mobile phone of the concerned user after seven years to

275

undertake roving enquiry. All these aspects have been 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.

We find no reason to deviate therefrom.

63. Needless to underscore that every information coming to the

investigating agency must be regarded as relevant. However, the

investigating agency is expected to make enquiries regarding the

authenticity of such information and after doing so must collect

corroborative evidence in support thereof. In absence of

corroborative evidence, it would be merely a case of suspicion and

not pass the muster of grave suspicion, which is the pre-requisite

for sending the suspect for trial. This is the mandate in Section

173(2)(i)(d) of the Code, which postulates that the investigating

officer in his report must indicate whether any offence appears to

have been committed and if so, by whom. The opinion of the

investigating officer formed on the basis of materials collected during

the investigation/enquiry must be given due weightage. That would

only be the threshold, to facilitate the concerned Court to take

cognizance of the crime and then frame charge if it is of the opinion

276

that there is ground for presuming that the accused has committed

an offence triable under Chapter XIX of the Code.

64. The appellant had also alleged about police inaction which

facilitated riots as part of conspiracy giving specific instances in that

regard. The SIT has considered this allegation being allegation No.

(xxv)

147

, and upon analyzing the materials gathered during the

investigation, opined that the circumstances highlighted by the

appellant were not sufficient link to infer that the named persons

had hatched larger conspiracy to cause mass violence across the

State targeting the minority community. On closer scrutiny of the

analysis in this regard, the opinion of the SIT is a plausible opinion.

For, the instances adverted to are essentially matters concerning the

acts of commission and omission at the ground level and not

indicative of any link to sustain the allegations of larger criminal

conspiracy. As noted earlier, the erring officials identified for their

acts of commission and omission at the ground/local level have been

proceeded with departmentally. Every act of commission and

omission would not result in hatching criminal conspiracy unless

147

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277

the acts have been done deliberately and there is meeting of minds

of all concerned.

65. Similarly, the allegation that victims of riots and police firings

was predominantly of the Muslim community, has been dealt with

as allegation No. (xxx)

148

, while noting that the incident referred to

unfolded on 28.2.2002, wherein 17 persons were killed in police

firing in Ahmedabad City, which included 11 Hindus and 6

belonging to minority community. Further, police firing was

required because of the evolving situation and out of compulsion to

control the situation. This is observed at page 329 as follows: -

“….. During enquiries, Shri P.C. Pande, formerly CP,

Ahmedabad City has stated that during the riots, it is difficult

for the police to identify as to whether any individual belongs to

a particular community. He has further stated that on 28-02-

2002, 17 persons were killed in police firing in Ahmedabad City,

which included 11 Hindus and 6 Muslims, which would go to

show that there was no discrimination on the part of police. He

has also stated that in the succeeding days, the retaliation

started from the Muslim side also and therefore, wherever force

was used by the police casualties resulted on both the sides.

According to Shri Pande, it is incorrect to say that the

administration and police were moving in collaboration with the

rioters and were targeting the persons from the minority

community with an intention to achieve the alleged objective of

CM. In view of the aforesaid position, the allegation is not

established……”

148

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278

66. Even the allegation regarding nepotism practiced in postings,

transfers, promotions etc. facilitating the ongoing subversion of the

criminal justice system has been rightly discarded as vague and

without any specific instances. That allegation is noted in paragraph

85 of the complaint dated 8.6.2006.

67. Be it noted that the SIT was constituted by this Court to

investigate into the allegations providing specific inputs/information

indicative of commission of offence of larger criminal conspiracy and

involvement of concerned person in executing such crime. The SIT

was not there to generally enquire into administrative matters of the

State, such as posting, transfers and promotions unless specific

input is set forth or was to be brought to the notice of the SIT.

68. Suffice it to note that absent clear and direct material indicative

of involvement of named person(s) in hatching criminal conspiracy

to cause mass violence across the State targeting minority

community during the relevant period, the attempt of the appellant,

if we may say so, is bordering on sewing of insignificant unconnected

circumstances and events regarding the failures and in some cases,

laxity in administration, which is being projected as an act of

279

concerted effort of all the State officials upto the highest level without

there being any tittle of material to show that there was meeting of

minds of all these persons at some level.

69. The appellant had gone to the extent of attributing motives in

relation to transfer of officers from field executive in the thick of riots

despite the objections of concerned DGP. In place of such able

officers, posting was done of officials who were willing to subvert the

system for political and electoral benefits. This allegation has been

duly enquired into by the SIT being allegation No. (vi) and dealt with

in the following words

149

: -

“…..

ALLEGATION NO. VI:

Officers from field executive posts were transferred (by

CM), in the thick of riots in 2002, despite DGP's objection

so as to facilitate placement of those who were willing to

subvert the system for political and electoral benefits as

narrated in Para 67 of the complaint dated 08.06.2006,

wherein instances of punishment, ill-treatment etc. are

listed in respect of the following officers: (1) Shri Rahul

Sharma, IPS, (2) Shri Vivek Shrivastava, IPS, (3) Shri

Himanshu Bhatt, IPS, (4) Shri M.D. Antani, IPS, (4) Shri

R.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 were transferred from the field executive posts in the thick

of riots in 2002 so as to facilitate the placement of those, who

149

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280

were willing to subvert the system for political and electoral

benefits.

Shri Rahul Sharma, who had been posted as SP,

Bhavnagar on 16-02-2002, has stated that on 27-02-2002, he

was on leave and after having come to know about the Godhra

train carnage, rushed to Bhavnagar and reached there in the

evening of 27-02-2002. He has further stated that on 01-03-

2002, permission was granted to Sadhu-Samaj by District

Administration to take out a procession and after the rally

started at 1710 hrs, the riot broke out in Bhavnagar City and

the mob had started gathering at different places in Bhavnagar

City. Further, one Kishor Bhatt, President of Shiv-Sena,

Bhavnagar Branch was arrested by the police and thereafter,

some reports of stone pelting, arson and rioting had come in

and curfew was imposed by the District Collector at his

request. He has also stated that Bhavnagar police had

succeeded in controlling the communal riots by the evening of

02-03-2002. Shri Rahul Sharma has stated that Shri Gordhan

Zadafia spoke to him over phone on 16-03-2002 and informed

him that he had done a good job in controlling the communal

riots, but the ratio of deaths, as a result of police firing in the

riots was not proper, i.e., more number of deaths of Hindus

than Muslims. Shri Rahul Sharma has also stated that on 23-

03-2002, a mosque was attacked by a riotous mob following

which 21 persons were arrested and that he was pressurised

by the local leaders to release them, to which he did not agree.

As a result, of he had difference of 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 of SP, Bhavnagar from 26-

03-2002. However, Shri Rahul Sharma has stated that he

would not be able to comment on the circumstances that led

to his transfer from Bhavnagar to Ahmedabad City as

transfer/posting is the prerogative of the Govt.

Shri Vivek Srivastava has stated that he remained

posted as SP, Kutch during January, 2001 to March, 2002. He

has further stated that as a mark of protest against the Godhra

carnage, VHP had given a call for Gujarat Bandh and had

taken out a rally in Bhuj town on 28-02-2002, for which

adequate arrangements had been made, as a result of which

there was no untoward incident in the entire District and no

killings were reported from anywhere in the District. According

to Shri Vivek Srivastava, a few days after the Godhra incident,

a Muslim family had been assaulted with sharp edged weapons

281

at a Dargah out side Nakhatrana town by some unknown

miscreants, causing injury to two persons. Further, according

to Shri Vivek Srivastava, a case u/s 307 IPC was registered

and one Home-Guard Commandant with BJP leanings of

Kutch District had been arrested and charge sheeted on

completion of investigation. Shri Vivek Srivastava has also

stated that he got a few phone calls from the office of Home

Minister and Chief Minister asking him about the details of the

case and also as to whether there was adequate evidence

against all the accused to which he confirmed that sufficient

evidence was available against all the accused persons for

effecting their arrest. Shri Vivek Srivastava was transferred in

the last week of March, 2002 and posted as Deputy

Commissioner, Prohibition & Excise, Ahmedabad Zone.

However, Shri Vivek Srivastava was unwilling 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, Bharuch

during 10-08-2000 to 26-03-2002, has stated that keeping in

view that Baruch was a communally sensitive District with

27% Muslim population, adequate police arrangements were

made pursuant to the Godhra carnage incident. According to

Shri Antani, from 28-02-2002 onwards, incidents were

reported only in respect of Bharuch town, Ankleshwar and Raj-

Pardi areas, whereas Palej, Amod, Kavi, Vedach, Nabipur,

Hansot and Bharuch Talukas were almost 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 was relieved on the same

day. However, Shri Antani has stated that he can not comment

on the allegation of any motive for his transfer.

Shri Satish Chandra Verma was posted as DIG, Border

Range with headquarters at Kutch-Bhuj during the period

2003-2005, which has three Districts including Patan. At that

time one Shri Shankar Chaudhary was the sitting MLA of BJP

from Radhanpur Assembly constituency. Shri Verma has

stated that a criminal case had been registered in Radhanpur

P.S. in the context of rioting between Hindu and Muslim

crowds after the Godhra carnage on 27-02-2002, in which two

Muslims had reportedly died due to police firing. However, it

was brought to his notice that the death of these two Muslims

by police firing was not substantiated by available evidence

and instead evidence was available against private individuals

including Shri Shankar Chaudhary, MLA for committing acts,

282

which led to the death of these persons. Shri S. C. Verma has

further stated that he had issued a formal order for the arrest

of Shri Shankar Chaudhary, MLA for murder and attempt to

murder. Shri Verma has also stated that sometime later, he

was transferred as Principal State Reserve Police Training

Centre, Chawky, Junagadh, However, Shri Verma has stated

that he can not say that this transfer was a consequence of

this aforesaid order. He has also stated that he can not call the

post of Principal of a training institution unimportant. Shri

Verma has further clarified that the scrutiny of the evidence by

him in the aforesaid criminal case was not a part of scrutiny of

2000 odd cases entrusted to the DGP by the Hon'ble Supreme

Court of India. Shri Verma has further stated that it was not

true that the post of Principal, SRRTC had been upgraded from

SP to DIG to post him there and that this post had been

encadred before his posting there as a DIG level post.

Shri. R. B. Sreekumar has stated before the SIT that he

remained posted as Addl. DG (Int.) during 09-04-2002 to 18-

09-2002 He has further stated that during this period, he had

sent reports against Sangh-Pariwar supporters, about the

prejudice of the Govt officials against the Muslims and the

general subversion of the Criminal Justice System, to the Govt.

and DGP. He has further stated that in his first affidavit filed

before Nanavati-Shah Commission of inquiry, he had pointed

out that the State IB had informed the State Govt. about the

likely repercussions of Godhra incident and measures to be

initiated by the field officers, but on account of pressure from

the ruling party and some higher officers, no steps were taken

to control the emerging communal situation as detailed in

Gujarat police Manual and that this paved the way for the

violence from the Hindu mob against the Muslims. He had also

stated in his affidavit that the imposition of curfew was delayed

on 28-02-2002, till 1300 & 1400 hrs in Ahmedabad City to

facilitate the 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, in which he had pointed out the subversion of

criminal justice system against the Muslims and specific

suggestions to remedy the situation, but the Govt. did not take

follow up action on the suggestions made by him in his

assessment reports dated 24-04-2002, 15-06-2002, 20-08-

2002 & 28-08-2002. Shri R. B. Sreekumar has further stated

that he had filed a third affidavit on 09-04-2005, presenting

the data on his harassment and victimization on account of his

non compliance of intimidator briefing by State Home

283

Department official, who had asked him to look after the

political interests of the Govt. Shri R. B. Sreekumar has also

stated that after a charge sheet was served upon him on 06-

09-2005, questioning his revelations before the Nanavati

Commission, he filed a fourth affidavit before the Nanavati

Commission on 27-10-2005. Shri R.B. Sreekumar has further

contended that he was superseded in promotion because of the

aforesaid acts and thus victimized by the Govt. He has also

stated that he had been exonerated of all nine charges served

upon him by the Central Administrative Tribunal, Ahmedabad

on 28-09-2007 and that the State Govt., sought a stay on the

operation of the CAT's order from Gujarat High Court, which

was rejected and that the Hon’ble High Court had ordered for

the expeditious release of regular pension to him and also

grant of promotion from the date of his supersession i.e. 23-

02-2005. The State Govt. had complied with the 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 show that though their transfers were immediately after

certain events in their jurisdiction, yet according to them

postings/transfers being the prerogative of the Govt., the same

can not be linked to certain events that took place immediately

before their transfers. Shri S. C. Verma has pointed out that

the post of Principal of a training institution could not be said

to be unimportant. He has further clarified that the scrutiny of

the allegation in a murder case of two Muslims was not a part

of scrutiny of 2000 odd cases entrusted to the DGP by the

Hon'ble Supreme Court of India. Shri Verma has also clarified

that the post of Principal, SRPTC had been upgraded before his

posting there.

The testimony of Shri R.B. Sreekumar is motivated

inasmuch as he had started collecting data/evidence during

posting as Addl. DG (Int.). Even subsequently, he clandestinely

recorded his conversation with Shri G.C. Murmu, Home

Secretary and Shri Arvind Pandya, Govt. Advocate before the

Commission with a view to level the allegation of pressure

tactics against him. He had also recorded his conversation with

Shri Dinesh Kapadia, an under Secretary, Budget and Co-

ordination in the Home Department to be utilized

subsequently, as evidence against the Govt. Surprisingly, he

kept all these things a well guarded secret till he was

284

superseded in promotion in February, 2005 and made it public

in his third affidavit filed before the Commission on 09-04-

2005. All these actions on the part of Shri R.B. Sreekumar

therefore, appear to be motivated. In view of this, the credibility

of his oral testimony has also been considerably reduced

because the same stands uncorroborated. On account of the

aforesaid factors, this allegation therefore, is not

established……”

70. Concededly, the act of transfer/posting of officials has been

after the unfolding of mass violence across the State. It was

obviously an administrative matter to address the expediencies of

that situation. We fail to understand as to how this circumstance

can be reckoned as hatching of criminal conspiracy resulting into

mass scale violence across the State aftermath Godhra incident.

Such conspiracy ought to have preceded the triggering of mass

violence. Be that as it may, the SIT has done everything possible to

look into each allegation noted in the complaint dated 8.6.2006 and

after collating relevant materials, have formed its opinion, not only

allegation-wise, but also offender-wise and witness-wise including to

deal with the observations noted by the learned Amicus Curiae.

71. To the same end, it was alleged [being allegation No. (xvi)] that

the officers at the grassroot level were not transferred as per SIB’s

recommendations till the arrival of Mr. K.P.S. Gill as Advisor to the

Chief Minister, as stated by Mr. R.B. Sreekumar in his second

285

affidavit dated 6.10.2004 submitted to the Nanavati-Shah

Commission. Even this allegation has been dealt with by the SIT in

the following words

150

: -

“…..

ALLEGATION No. XVI:

Officers at grass-root level were not transferred as

per State Intelligence Bureau's recommendation till the

arrival of Shri K.P.S. Gill as Advisor to CM, as indicated by

Sreekumar in his second affidavit dated 06.10.2004 to the

Nanavati Commission.

Shri R. B. Sreekumar has stated that after taking

over as Addl. DG (Int.) on 09-04-2002, he had sent an

analytical note on the Current Communal Scenario in

Ahmedabad City on 24-04-2002, to Shri Ashok Narayan,

the then ACS (Home) with a copy to Shri K. Chakravarthi,

the then DGP. In this report, Shri Sreekumar has stated that

repeated and strong media attack on Ahmedabad police had a

demoralising impact on the confidence and dedication of the

city police personnel. He has further stated that many senior

police officers at the decision taking level, i.e. Inspectors in

charge of the City police stations had ignored the specific

instructions from the official hierarchy on account of their

getting direct verbal instructions from the senior political

leaders of the ruling party. According to Shri Sreekumar, such

officers had become adept in the art of deceptive law

enforcement for the benefit of their Political masters and

friends, who ensured their placement and continuance in their

choicest executive posts at the cost of the spirit and letter of

the law of the land.

In this report Shri Sreekumar had suggested amongst

other remedial measures, the replacement of the present

incumbents from executive posts at the cutting edge level from

those cities and districts, where police either remained inactive

during the riots or played a collaborative role with the rioters.

Shri Sreekumar also suggested that for deterrent, effect, police

functionaries, who had played collaborative and participatory

roles during the riots should be given statutory punishment.

150

pages 297-298 of original copy of the final report forming part of Convenience Compilation of respondent No. 2

286

Shri Sreekumar has further stated that on 04-05-2002,

Shri K. P. S. Gill, former DGP of Punjab State, who had been

deputed as an Adviser to the Chief Minister, Gujarat on Law &

Order matter, convened a meeting of senior police officers in

his camp at CRPF group centre, Gandhinagar. Shri K.

Chakravarthi, Shri P. C. Pande, Shri R. B. Sreekumar, Shri

Maniram, and Shri M. K. Tandon, attended the meeting. As

instructed by Shri Gill each officer gave his assessment of the

current situation. Both, DGP and CP, Ahmedabad city

observed that the situation was normal due to effective police,

measures. Shri Sreekumar has further stated that Shri

Maniram, who was responsible for maintaining Law & Order

in the state, totally disagreed with the assessment given by

DGP. And CP, Ahmedabad City. According to the statement

made by Shri Maniram before the SIT, he had informed

informed Shri K. P. S. Gill that the tension continued to prevail

in Ahmedabad city amongst the Hindus and Muslims and the

officers, who were responsible for not preventing the riots

resulting in loss of life and property in their jurisdiction should

be transferred immediately irrespective of their status and

good officers posted in their place. Shri Maniram also stated to

have mentioned to Shri Gill that wherever effective officers had

been posted, the Law & Order situation was under control like,

Saurashtra and South Gujarat. In this meeting, Shri R. B.

Sreekumar had fully endorsed the views of his Shri Maniram,

Shri Sreekumar also handed over a copy of his report sent vide

letter dated 24-04-2002 to Shri Gill and had also prepared a

separate note at the instance of Shri Gill. According to Shri

Sreekumar, Shri K. P. S. Gill had called him on 08-05-2002,

and informed that the suggestions and remedial measures

indicated in his (Sreekumar's) note here quite relevant and that

soon most of the officers at the decision making levels in

Ahmedabad City would be transferred and a new team of

officers positioned.

Shri K. Chakravarthi has stated that during initial

discussions with Shri K.P.S. Gill he along with Shri Ashok

Narayan were given to understand that CM wanted to

transfer the senior officers of Ahmedabad City and wanted

alternate proposal. Shri Chakravarthi had accordingly

given his suggestion to Shri Ashok Narayan, who prepared

a note and submitted the same to the Chief Minister for

his approval. According to Shri Chakravarthi, Shri K.P.S.

Gill had asked him about his views on these transfers, to

which Shri Chakravarthi informed him that he had given

these suggestions. Shri Chakravarthi has further stated

287

that this note was approved by the Chief Minister and the

transfers came into force in the end of first week of May,

2002. Shri Chakravarthi has also stated that the matter

relating to the shifting of jurisdictional officers was

already under consideration and it was not taken up at the

instance of either Shri Maniram or Shri RB. Sreekumar.

In view of this, the allegation of Shri Sreekumar that

the transfers of the jurisdictional officers as suggested by

State IB on 24-04-2002, were not carried out till the arrival

of Shri K.P.S Gill, an Adviser to CM, is therefore, without

any basis……”

(emphasis supplied)

This analysis has been criticized amongst others on the ground that

Mr. K.P.S. Gill has not been examined by the SIT. Non-examination

of Mr. K.P.S. Gill by the SIT can have no adverse impact on the

otherwise well-considered opinion arrived at by the SIT in the final

report on this aspect. In any case, not translating the

recommendation of SIB (dated 24.4.2002) into transfer order until

end of first week of May, 2002, does not provide any direct link

regarding the allegation of hatching larger criminal conspiracy at the

highest level for causing or precipitating the violence across the State

from February, 2002 onwards. Viewed thus, no fault can be found

with the opinion of the SIT that the transfers of the jurisdictional

officer, as suggested by the SIB, were not carried out till the arrival

of Mr. K.P.S. Gill, Advisor to the Chief Minister, is of no avail. The

288

opinion of the SIT in this regard is a plausible view and had rightly

commended to the Magistrate, as well as, the High Court.

72. That takes us to the other allegation, more or less of the same

type being allegation No. (vii), namely, senior officers were awarded

with undue benefits for collaborating with the illegal plans of

CM/BJP during 2002 riots and afterwards. This has been found to

be a far-fetched and unfounded allegation by the SIT, after analyzing

the relevant materials on record including the statements of the

concerned officials

151

, dealing with 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 reason that such an act would not be a

link to connect the act of hatching of criminal 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 in

riots cases. This has been thoroughly examined by the SIT in the

following words

152

: -

“…..

151

pages 271-280 of original copy of the final report forming part of Convenience Compilation of respondent No. 2

152

pages 294-296 of original copy of the final report forming part of Convenience Compilation of respondent No. 2

289

ALLEGATION No. XV:

Pro-VHP advocates were appointed as Public

Prosecutors in riot cases as noted in Para 4 under the

caption ‘Present Situation’ in the complaint dated

08.06.2006, wherein appointments of advocates Shri

Chetan Shah (as District Government Pleader), Shri V.P.

Atre (as Special PP in the Gulberg case), Shri Raghuvir

Pandya (as Special PP in the Best Bakery case), Shri Dilip

Trivedi (as Special PP in the Sardarpura case), Shri

Rajendra Darji (as Special PP in the Dipda Darvaja case),

Shri Piyush Gandhi (PP in Panchmahal District), have

been questioned).

Enquiries revealed that the procedure for the

appointment of a Public Prosecutor in a town is that the

vacancy is notified by the collector & District Magistrate

in the local news papers. In response to the

advertisement a number of eligible candidates are

interviewed by a Board comprising Principal Sessions

Judge and District Magistrate. Thereafter, a panel of

three or four advocates selected by the Board is

forwarded to the Govt. for the appointment of the Public

Prosecutor. The Govt. exercises its own discretion, select

and notify one of the empanelled candidates as a public

Prosecutor for a period of three years. It may thus be seen

though the selection procedure is transparent yet the

Govt. has got the discretion to appoint a particular

lawyer out of the panel of 3-4 advocates forwarded to

them.

Enquiries further revealed that Shri Chetan K. Shah

remained a Member of Vishwa Hindu Parishad during 1990

to 1995. However, at present he is neither a member of BJP

nor any of the Sangh Parivar organisations. It has further

come to light that on 12-07-1986, seven or nine members of

Muslim Parivar were allegedly burnt alive in Meghaninagar

area during the riots in 1986. A case in this regard was

registered in Shahibaug P.S. Shri Chetan K. Shah was not a

FIR named accused in this case, but was arraigned as an

accused during the course of investigation and charge sheet

filed against him. After the committal proceedings this case

was registered as terrorist case no. 1/87 before the Hon'ble

Special Court, Ahmedabad City. Shri Chetan K. Shah was

charged under TADA and other rioting offences. However, he

was not arrested and instead granted anticipatory bail and

subsequently regular bail also. On his request to the BAR

Association, Shri Chetan Shah was defended by Shri H.M.

Dhruv and Shri J.M. Panchal, Shri J.M. Panchal, Sr.

Advocates. After trial, Shri Chetan Shah was acquitted of all

the charges.

290

Shri Chetan K. selected as a Public Prosecutor, as per

laid down appointed as such on 17-06-2003 for a period of

three years Before his appointment as PP, Shri Shah, had

defended some of the accused persons of the Gulberg Society

case Some of them had been released on bail during that

period and Shri Shah, had represented them. Further, as a

Public Prosecutor of City Sessions Court, he had 15

Additional Public Prosecutors, who used to work in different

courts as per duties allotted by Shri Chetan K. Shah. One

Shri V. P. Atre, Additional Public Prosecutor had been

appointed as Special PP to conduct case no 67/2002 of

Meghaninagar P.S. on 06-10-2003. It has further come to

light that this was a special assignment given to Shri Atre by

the Govt. of Gujarat directly and he was not junior or

subordinate to Shri Chetan K. Shah. In Gulberg Society case,

none of the accused persons were released on bail after Shri

V. P. Atre took over as Spl. PP. However, the accused persons

were released on bail by the Gujarat High court at different

stages. Shri Chetan K. Shah did not appear as a Public

Prosecutor in any of the riot cases pending in City Sessions

Court, Ahmedabad City. He could not have appeared as a

Public Prosecutor in Gulberg Society case as he had already

appeared in this case from the defence side. Shri Chetan K.

Shah has denied that he had been appointed as a Public

prosecutor because of his VHP background or being a

sympathizer of the ruling party or Sangh Parivar. The three

year term of Shri Chetan K. Shah had expired in June, 2006

and was not extended. Shri Chetan K. shah has denied

knowledge that Shri V. P. Atre had been appointed as a Spl.

PP after a protest had been lodged by the eyewitnesses of the

Gulberg Society case regarding his (Shri Shah's)

appointment. Both, Shri Chetan K. Shah and Shri Atre have

denied that the latter worked under the former.

Shri H M. Dhruv, Sr. Advocate has corroborated the

version of Shri Chetan K. Shah and has confirmed to have

defended Shri Chetan K. Shah in a TADA case jointly with

Shri J.M. Panchal, Sr. Advocate, which ended in acquittal.

He has further stated that he had been appointed as Spl. PP

to conduct the cases arising out of Meghaninagar P.S. C R

No. 67/2002 and Naroda P. S. CR No. 100/2002 on 05-03-

2009 and Shri Amit Patel, Advocate was appointed to assist

him in the trial. However, Shri H. M. Dhruv did not appear in

any of these cases on any of the dates as new Public

Prosecutors were appointed by the Govt. of Gujarat on the

recommendations of SIT.

Enquiries further revealed that Shri Raghuvir N.

Pandya had started his practice in District & Sessions Court,

Vadodara in the year 1986 on Civil and criminal side. In the

year 1997, he was appointed as Addl. PP in District &

291

Sessions Court. Further, during the period 2000-2002, he

worked as a incharge Public Prosecutor Vadodara District.

He was appointed as a District Govt. Pleader in District

Sessions Court, Vadodara in 2002 and worked there till

2008. He has denied any direct connection with BJP, Bajrang

Dal, RSS or any of the Sangh Parivar organisations, but has

admitted to have contested corporation elections from ward

no. 20, Majalpur as an independent candidate in the year

1995, when he was elected. He remained Corporator for a

period of six years till 2001. He applied for appointment as a

Notary in the year 2001 and was appointed as a Notary by

the Central Govt. He has also stated that the Best Bakery

incident was a serious and sensitive case in Vadodara, as an

aftermath of Godhra incident and that he had conducted the

prosecuted of this case as the Chief Public Prosecutor of

District & Sessions Court in a sincere and diligent manner.

According to Shri Pandya, it is incorrect to say that all

matters in the fast track Court Judge H. U. Mahida were

being handled by Shri Gupta Addl. PP. Shri Pandya has

explained that keeping in view the work load as well as the

availability of the prosecutors he used to divide the workload

between different Prosecutors including Shri Gupta, Addl.

Shri Pandya is of the view that being the Chief Public

Prosecutor of District & Sessions Court, his appointment and

notification in Best Bakery Case was not necessary. Shri

Raghuvir N. Pandya ceases to be a Public Prosecutor and

Learned Fast Track Court Judge Shri H. U. Mahida had

already retired.

Shri Dilip R. Trivedi, Advocate from Mehsana has

stated to have started his practice, as an Advocate in

Mehsana Courts in the year 1977. He was appointed as Govt.

Advocate and Public Prosecutor in Mehsana in April, 2000

and remained there till the end of 2007. He is a member of

Rashtriya Swayam Sevak Sangh since 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 a social

Hindu organisation with no political inclinations and had not

been banned. According to Shri Trivedi post Godhra carnage

there were riots in Mehsana District particularly in

Srdarpura, Tal- Vijapur and Dipda Darwaja, Visnagar and

the bail application of accused persons Involved in these

cases were dealt with by him and other Addl. PPs. He has

further stated that the bail application of seven accused

persons were argued by him in the Sessions Court, Mehsana

and the same were rejected. All these seven accused persons

had approached the Gujarat High Court and Subsequently

Supreme Court also, but their bail applications were rejected.

Some other accused persons arrested in this case had also

292

filed bail. Applications in the Court and were granted bail.

Further, as and when the accused persons were arrested in

Sardapura case, Tal-Vijapur, they were released on bail on

various conditions. The complainant had filed petitions in

Gujarat High Court vide Crl. Misc. Appls. No. 3590/02,

3591/02 & 4026/02 against the bail order, which were

dismissed by the High Court. Shri Trevedi has added that as

and when the accused persons filed their bail application the

same were argued in an honest and impartial manner

depending upon the evidence available for and against the

accused persons. He has also stated that considering the

arguments and the evidence available against and for the

accused persons, as per police investigation, the court had

either granted them bail or dismissed their bail applications

on merits and that the same was purely the discretion of the

court. In these cases the charge sheets were filed by the IO

in the concerned Court of the competent jurisdiction, but the

trail was not conducted by him.

Shri Rajendra Darji, Advocate had denied any

connection with Vishwa Hindu Parishad, Bajrang Dal or any

of the connected organisations. He has stated that he become

Addl. PP and Addl. Govt. Pleader in Mehsana District in April

2000 and reminded there till 2004. In 2005, he appeared for

the interview and was appointed as Addl. Govt. Pleader and

till 2007. In 2008, he was again appointed as Addl. Govt.

Pleader and he continues to be the Addl. PP. He has stated

that Dipada Darwaja case was charge sheeted in the first

Fast Track Court of Shri P. R. Patel and subsequently

transferred to the Court of Shri S. J. Seth and again

transferred 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 had further stated that he had got

dismissed the bail application of the seven accused persons

from the Court. He has also stated to have dealt with this

case in an independent and impartial manner.

Shri Piyush L. Gandhi, Advocate remained a RSS

activist since 1964, a worker of Akhil Bhartiya Vidharthi

Parishad between 1968 to 1972, District Pramukh of Janta-

Yuva Morcha between 1973 to 1980, Secretary of

Panchmahal District VHP between 1982 to 1990, Officiating

Pramukh of Panchmahal District VHP between 1990 to 2006

and Administrator of schools associated with Vidya Bharti

since 2006 till date. He had also been appointed as Director

of Godhra City CO-operative Bank in 1996 and treasurer of

National Blind Samiti in 1994. He remained Govt. Advocate

and Public Prosecutor of Panchmahal from 15-01-1996 to

01-09-2009. He has stated that in the riot cases post Godhra

293

carnage in the year 2002, Shri J. G. Pathak and Shri B. J.

Trivedi advocates were appointed as Spl. PPs to conduct the

trial of these cases. However, this appointment was cancelled

with effect from 04-12-2003 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. Shri Gandhi has also stated that he

had conducted the trial of Shabana-Suhana bang rape and

murder case and that in this case, the complainants had filed

Crl. Revision Apps. NO. 94/2004 & 142/2004 in Gujarat

High Court in Gujarat High Court, in which some allegations

had been levelled against him. He has further stated that the

Gujarat High Court had dismissed these allegations on the

first date of hearing on 12-10-2004. He has also stated that

he had concluded the trial of this case and many of the

accused persons were convicted, and awarded life

imprisonment. He has also stated that appeals had been filed

against the acquittal of some of the other accused persons in

this case in the Gujarat High Court.

On overall examination of these allegations, it

appears that government had usual practice of

appointment of government pleaders, the political

affiliation of the advocates did weigh with the Govt. for

the appointment of the Public Prosecutors. However, no

specific allegation of showing favour by them to any of

the accused persons involved in the riots either in grant

of bail or during the trial has come to light……”

(emphasis supplied)

We fail to understand as to how this act can be linked with the

allegation of hatching of criminal conspiracy for causing or

precipitating mass violence across the State. The appellant having

failed to provide sufficient material to raise serious suspicion in

respect of allegation of hatching of criminal conspiracy for the

intended mass violence, cannot be heard to make that deficiency by

raising allegation of the kind of appointments of public prosecutors

during the trial of the concerned cases. Be that as it may, the

294

allegation clearly overlooks the procedure regarding appointment of

a public prosecutor. It begins with notification by the Collector and

District Magistrate in the local newspaper and the eligible

candidates are interviewed by a Board comprising of Principal

Sessions Judge and District Magistrate. Such being the selection

process for appointment of public prosecutors, the allegation under

consideration has been rightly discarded by the SIT albeit after

thorough analysis of all aspects relevant in that regard. There is

nothing to indicate that any grievance was received by the SIT from

any quarter during the trial of nine cases assigned to it by this Court

for investigation, else there is no reason to doubt that SIT would

have taken corrective measures and made appropriate

recommendations for being given effect to by the concerned

authorities in terms of the order of this Court dated 1.5.2009

152A

74. Similarly, the allegation No. (xvii) about failure to take action

against the print media has been discarded by the SIT

153

being

insufficient evidence to make out any criminal case against the

named offenders. It is a different matter that such publication must

152A

supra at Footnote No. 18

153

pages 298-301 of original copy of the final report forming part of Convenience Compilation of respondent No. 2

295

have been released, but no material is forthcoming that it has been

done at the behest of the named offenders or they prevented the local

police from taking action in that regard. Emphasis was also placed

by the appellant on the speeches delivered by Dr. Praveen Togadia,

named as offender No. 20 in his capacity as International General

Secretary, VHP. However, that piece of material cannot be the basis

to link it with the allegation of larger criminal conspiracy hatched at

the highest level for causing and precipitating mass violence across

the State against the minority community during the relevant period.

Further, 232 crimes regarding hate speeches came to be registered

against the concerned persons across the State. The SIT in

connection with the complaint of appellant, was not expected to

enquire into utterances made by different persons constituting hate

speech during the surcharged situation of riots, as the remit of the

SIT was to enquire into the allegation of larger criminal conspiracy

at the highest level resulting in spreading of mass violence across

the State during the relevant time.

75. Even the allegation No. (xviii) that State Home Department gave

misleading reports about normalcy to the State Election

Commission, has been discarded by the SIT after analyzing the

relevant facts including the decision about the timing to conduct

296

elections was that of the Election Commission. That was taken by

the Election Commission of India despite not accepting the statistics

furnished by the State.

76. Reverting to the allegation regarding secret meeting [allegation

No. (xxxi) discussed at pages 329-332

154

] and meeting held by Mr.

Kalubhai Hirabhai Maliwad [allegation No. (xxxii) discussed at pages

332-337

155

], the SIT after thorough investigation and analyzing the

relevant materials, has opined that the same are figment of

imagination replete with inaccuracies and contradictions.

77. Our attention was drawn to the recommendations of the NHRC

and also the report of the private Tribunal, named as Concerned

Citizens Tribunal. The narrative recorded therein cannot be the sole

basis to proceed against the offenders. Whereas, dependent upon

the quality of materials gathered by the SIT during thorough

investigation done by it on all factual aspects including the ones

referred to by the NHRC and the private Tribunal, the SIT could form

its independent opinion. The SIT had precisely followed this route

154

pages 329-332 of original copy of the final report forming part of Convenience Compilation of respondent No. 2

155

pages 332-337 of original copy of the final report forming part of Convenience Compilation of respondent No. 2

297

before submitting the final report to the concerned Magistrate as per

the direction given by this Court.

78. The appellant had urged that the SIT had not investigated the

willful failure of the fire brigade in Ahmedabad to respond to the calls

made by the minority community being part of the criminal

conspiracy. This argument is unfounded and tenuous. The fire

services in Ahmedabad City come within the jurisdiction of

Ahmedabad Municipal Corporation and not the State police or the

State civil administration. The Commissioner of Police of

.Ahmedabad City, who has been blamed by the appellant, had

nothing to do with the functioning of the fire brigade. No tangible

material is forthcoming to indicate that the Commissioner of Police

of Ahmedabad City had issued instructions 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 in the entire city of Ahmedabad, blockades were

created at various locations due to mass violence, making it difficult,

if not impossible, for movement of the vehicles such as fire brigade.

In any case, this argument is one of inaction or failure of fire services

in the Ahmedabad City. That cannot be the basis to infer criminal

298

conspiracy, much less hatched at the highest level to cause mass

violence across the State.

79. The respondents had justly contended that the attempt of the

appellant was to keep in improvising their grievances and make new

allegations including to involve new offenders as being party to the

larger criminal conspiracy hatched at the highest level. Appellant in

filing the protest petition had the gumption to assert that the list of

persons was not exhaustive besides naming new persons as

offenders. In the name of protest petition (running into 514 pages),

appellant was also indirectly questioning the decisions rendered by

the Courts in other cases including sub judice matters, for reasons

best known to her. She was obviously doing so under dictation of

someone. In fact, the sizeable contents of the protest petition are

founded on the affidavits filed by those persons, whose version have

been found to be replete with falsehood.

80. Be that as it may, after going through the analysis done by the

SIT of the concerned allegations, we have no hesitation in accepting

such opinion that no case had been made out against the named

299

offenders, much less to indicate being party to the hatching of larger

criminal conspiracy to cause or precipitate mass violence across the

State against the minority community during the relevant period.

81. It is, therefore, not open to hold that the investigation by the

SIT in the present case has been deficient or infirm. Suffice it to

observe that every allegation found in the complaint (running into

67 pages) had been 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 before submitting the report to this

Court. The analysis and opinion of the SIT of the materials collected

during investigation allegation-wise, witness-wise as well as,

offender-wise are broadly agreed upon even by the learned Amicus

Curiae - except the observations made regarding some matters,

which observations have also been thoroughly enquired into by the

SIT by way of further investigation and duly analyzed for recording

its opinion

156

(appended as Annexure-1 to this judgment), in the final

report presented to the concerned Court. The Magistrate, as well as,

the High Court have accepted the final report presented by the SIT.

For, there is no material worth the name to even create a suspicion

(leave alone strong suspicion and a ground for presuming that the

156

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

300

named offenders had committed an offence of larger conspiracy),

indicative of the meeting of the minds of all concerned at some level;

and in particular, the bureaucrats, politicians, public prosecutors,

VHP, RSS, Bajrang Dal or the members of the State political

establishment - for hatching a larger criminal conspiracy at the

highest level to cause and precipitate mass violence against the

minority community across the State during the relevant period.

Such conclusion reached by the Magistrate and the High Court is

unexceptionable.

82. We may hasten to add that our understanding about the thrust

of the approach adopted by the SIT is not to form opinion because

of doubting the credibility of the witnesses as such, which indeed

would have been a matter for trial. However, the SIT went by the

logic of falsity of the information or material, including the same

remaining uncorroborated despite the best endeavour made by the

SIT. It is certainly not a case of failure of SIT in doing proper

investigation into the allegations of larger conspiracy as such. The

SIT was obviously conscious that it would not be a case of strong

suspicion about the commission of offence of larger criminal

conspiracy - absent credible, verifiable and corroborated

information/material. It is for that reason it had to record its

301

unambiguous opinion after duly analyzing all angles and the

information/material collated during the enquiry/investigation -

that there was no case for proceeding against the named offender(s)

as the offences under the relevant sections of law were not made out;

and, therefore, to urge upon the Magistrate to accept the final

report/closure report. This is not to say that the SIT and the Courts

have doubted the occurrence of instances registered as crimes

during the relevant period, nor have put a seal of approval to such

heart-rending instances. Whereas, every registered crime in that

regard (including the unfortunate gruesome killing of husband of

appellant), has been duly investigated by the Court appointed SIT

and accused person(s) involved in commission of such crimes have

been duly identified and had to face the trial before the jurisdictional

Courts.

83. Relying on the decision in Nirmal Singh Kahlon

157

, it was

urged that if it is open to file second FIR in connection with the

alleged offence, the self-imposed remit of the SIT can be no

impediment for proceeding against the concerned persons on the

basis of further information/material referred to in the protest

157

supra at Footnote No. 44

302

petition or which comes to the notice of the appellant in due course.

The argument, though attractive at the first blush, has been stated

only to be rejected. In that, for the view that we have taken hitherto

that the SIT, as well as, the Courts including the appellant is bound

by the sui generis directions issued by this Court from time to time,

the matter could be examined only in that context and not in

reference to the approach to be adopted in general cases.

Furthermore, the SIT has observed that the so-called additional

information/material would not improve the case of the appellant,

as taking the same as it is, there is no indication therein about the

perceivable link to show hatching of criminal conspiracy at the

highest level for causing and precipitating mass violence across the

State against the minority community during the relevant period.

84. The SIT was entrusted with investigation of nine (9) sets of

crimes including the occurrences at the Gulberg Society. Status

reports regarding the progress of investigation was submitted to this

Court in all those cases and after satisfaction of this Court about the

completion of proper investigation done by the SIT, report(s) under

Section 173 of the Code came to be filed in the concerned cases and

the identified persons involved in commission of crime(s) were also

303

sent for trial. Moreover, the trials of the concerned cases had

progressed under continuous supervision of this Court, which have

ended in conviction of accused in the concerned cases, as indicated

in the Chart submitted alongwith Final Note 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 of

the SIT with sincerity, objectivity and dispassionately including to

the satisfaction of this Court in all these cases, the argument of the

appellant was bordering on undermining the integrity and sincerity

of the members of the SIT. Needless to underscore that the SIT came

to be constituted by this Court of experienced senior officials with

proven ability of investigating complex offences. Therefore, we find

such submission as not only far-fetched and an attempt to undo and

undermine the industry of the SIT in having thoroughly investigated

all the nine (9) sets of cases assigned to it by this Court, but also in

the nature of questioning the wisdom of this Court. Hence, the

157A

Annexure-2 (at pages 450-452 of this judgment)

304

assail of the appellant needs to be stated to be rejected. While

observing sobriety, we say no more.

86. We do not wish to dilate on the other reported decisions, for the

view we have taken and more so, we have followed the settled legal

principles in answering the matters in issue.

87. We need to clarify that our analysis regarding sting operation

or the Tehelka Tape and its transcript, is not a final determination

regarding the evidentiary value thereof. We say so because the same

will have to be dealt with in appropriate proceedings, in particular,

other cognate criminal cases investigated by the Supreme Court

appointed SIT including those pending before the High Court and

this Court.

88. While parting, we express our appreciation for the indefatigable

work done by the team of SIT officials in the challenging

circumstances they had to face and yet, we find that they have come

out with flying colours unscathed. At the end of the day, it appears

to us that a coalesced effort of the disgruntled officials of the State

of Gujarat alongwith others was to create sensation by making

revelations which were false to their own knowledge. The falsity of

their claims had been fully exposed by the SIT after a thorough

investigation. Intriguingly, the present proceedings have been

305

pursued for last 16 years (from submission of complaint dated

8.6.2006 running into 67 pages and then by filing protest petition

dated 15.4.2013 running into 514 pages) including with the audacity

to question the integrity of every functionary involved in the process

of exposing the devious stratagem adopted (to borrow the

submission of learned counsel for the SIT), to keep the pot boiling,

obviously, for ulterior design. As a matter of fact, all those involved

in such abuse of process, need to be in the dock and proceeded with

in accordance with law.

89. To sum up, we are of the considered opinion that no fault can

be found with the approach of the SIT in submitting final report

dated 8.2.2012, which is backed by firm logic, expositing analytical

mind and dealing with all aspects objectively for discarding the

allegations regarding larger criminal conspiracy (at the highest level)

for causing and precipitating mass violence across the State against

the minority community during the relevant period. As

aforementioned, the SIT has gone by the logic of falsity of the

information or material and including the same remaining

uncorroborated. In that, the materials collected during the

investigation do not give rise to strong or grave suspicion regarding

hatching of larger criminal conspiracy at the highest level for causing

306

mass violence across the State against the minority community and

more so, indicating involvement of the named offenders and their

meeting of minds at some level in that regard. The SIT had formed

its opinion after considering all the materials collated during the

investigation. The question of further investigation would have

arisen only on the availability of new material/information in

connection with the allegation of larger conspiracy at the highest

level, which is not forthcoming in this case. Hence, the final report,

as submitted by the SIT, ought to be accepted as it is, without doing

anything more.

90. The Magistrate, upon presentation of final report could have

exercised 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 mind independently to the final report dated 8.2.2012

and the materials appended thereto, chose to accept the same as it

is, without issuing any other direction to the SIT.

158

supra at Footnote No. 28

159

supra at Footnote No. 21

160

supra at Footnote No. 30

161

supra at Footnote No. 27

307

91. After cogitating over the matter, we uphold the decision of the

Magistrate in accepting the stated final report dated 8.2.2012

submitted by the SIT, as it is and rejecting the protest petition filed

by the appellant. We do not countenance the submission of the

appellant regarding infraction of rule of law in the matter of

investigation and the approach of the Magistrate and the High Court

in dealing with the final report.

92. Accordingly, we hold that this appeal is devoid of merits and

resultantly, deserves to be dismissed in the aforementioned terms.

We order accordingly.

Pending applications, if any, shall stand disposed of

accordingly.

..……………………………J.

(A.M. Khanwilkar)

………………………………J.

(Dinesh Maheshwari)

………………………………J.

(C.T. Ravikumar)

New Delhi;

June 24, 2022.

308

ANNEXURE-1

162

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……..

Page: 398

❖ Opinion of Shri Raju Ramchandran, Amicus Curiae:-

Shri Raju Ramchandran, Sr. Advocate assisted by Shri Gaurav

Aggarwal, Advocate had been appointed as Amicus Curiae by the Hon'ble

Supreme Court of India to assist the Court in this matter. Shri Raju

Ramchandran, AC initially examined the Inquiry Report submitted by the

SIT to the Hon'ble Supreme Court of India and submitted his observations

on the findings of the SIT on 20.0l.2011, to the Hon'ble Supreme Court of

India, in three parts i.e. Chart 'A', Chart 'B' & Chart 'C'.

The aforesaid observations made by the Ld. Amicus Curiae were

considered by the Hon’ble Spl. Bench of Supreme Court of India on

15.03.2011, when the following observations were made:-

“A copy of the note submitted by the learned amicus Curiae has

already been supplied to the Chairman, Special Investigation Team

(SIT). Let the Chairman, SIT, look into the observations made by the

learned amicus curiae against each of the findings given by the SIT

on the allegations made in the complaint and submit this report

thereon. If considered necessary, it will be open to the SIT to carry out

further investigation in light of the observations made in the said note.

The report shall be submitted by 25

April, 2011. List the case on 27

April, 2011 at 3:00 p.m.”

Pursuant to the aforesaid order, SIT conducted further

investigation u/s 173(8) Cr.P.C. in Gulberg Society Case

(Meghaninagar P.S. 1 CR No.67/02) as suggested by Ld. Amicus

Curiae in his observations submitted in the note dated 20.01.2011

to the Hon’ble Supreme Court of India.

The recommendations made in Chart ‘A’ by the Ld. Amicus Curiae

vis-à-vis further investigation conducted is discussed below:-

Chart- ‘A’

ALLEGATIONS

FINDINGS

OBSERVATIONS

I & IV: A

statement was

1. None of the officers

that attended the

1.It would be

impossible to

get

162

see para 33 of this judgment

309

made by Shri

Narendra Modi

on 27-02-2002,

in a meeting at

his residence

instructing the

senior officers to

allow the ·

Hindus to give

vent to their

anger. This is

also supported

by Late Haren

Pandya.

meeting on 27-

02-

2002, have confirmed

the

alleged statement

made by Shri

Narendra Modi

2. The statement of

Shri R. B. Sreekumar

is hearsay.

3.Sanjiv Bhatt, the

then DCI (Security) was

not present in the

meeting.

4. None of the Cabinet

Ministers, including

Late Haren Pandya

attended the meeting

on 27-02-2002.

Testimony of Late

Haren Padya before the

Citizen's Tribunal is

unreliable.

anyone present in the

meeting on 27-02-

2002 to speak against

Shri Modi,

especially

the bureaucracy

and

police officials.

2.The other

circumstances would

also have to

taken

into account. There is

nothing to show that

the 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

him on 28-02-2002,

would have been

decisive to prove that

he had taken all steps

for the protection of

the minorities, but this

evidence is not there.

Neither the CM nor his

personal officials have

stated what he did on

28-02-2002. Neither

the top police nor

bureaucrats have

spoken about any

decisive action by the

CM.

-----------------------------

Page: 399

3. It may not be

correct to rule out the

310

presence of Sanjiv

Bhatt, IPS, DC (Int.)

since Addl. DC (Int.)

Shri G.C. Raiger was

not available. There is

no reason for him to

make a wrong

statement. He was

willing to make a

statement if he was

protected from legal

repercussions of

disclosing what

transpired in the

meeting.

4. It is difficult to

believe that when the

CM came back after

the Godhra trip, no

Minister was present

at his residence.

Hence, it may not be

totally unbelievable.

Shri Haren Pandya is

unfortunately dead,

but the statements

made by Late Haren

Pandya to Justice P.B.

Sawant (Retd.) and

Justice H. Suresh

(Retd.) can be used,

even if his statement

is not been formally

reproduced in writing

by the Citizen’s

Tribunal.

5. It has also been

brought out that an

enquiry was made

from CM’s office as to

311

the identity of the

Minister who had

deposed before the

Citizen’s Tribunal and

that the State

Intelligence Bureau

had verified the

identity as that of

Shri Haren Pandya.

This also gives some

corroboration to the

fact that the CM’s

office was

uncomfortable with

the disclosure made

by an unidentified

Minister to the

Citizen’s Tribunal.

6. The statement of

Shri R.B. Sreekumar

cannot be discarded

as hearsay, in the

light of Section 6 of

the Evidence Act.

7. Another aspect is

the fact that VHP

General Secretary

Jaydeep Patel and Shri

Modi were at Godhra on

27.02.2002. The

statement of Jaydeep

Patel that he did not

meet Shri Narendra

Modi at Godhra does

not inspire

312

-----------------------------

Page: 400

confidence. This has to

be examined as the

Mamlatdar would not

have handed over the

dead bodies to a non-

government person i.e.

Jaydeep Patel until and

unless somebody very

high told him to do so.

V. That Cabinet

Ministers Shri I.K.

Jadeja and Shri

Ashok Bhatt were

positioned in

DGP’s office and

Ahmedabad City

Control Room on

28.02.2002.

The SIT concludes that

this was a “Controversial

decision” taken by the

Govt. to place two

ministers in the DGP’s

office and Ahmedabad

City Control Room.

However, SIT concludes

that there is no evidence

that the 2 Ministers

passed on any

instructions to the police

to deal with riots in

particular manner.

Therefore, the allegation

is only partially proved

as per SIT.

8. The positioning of 2

Cabinet Ministers

having nothing to do

with the home

portfolio in the Office

of DGP and the State

Police Control Room

respectively is another

circumstance which

reflects that there was

a direct instruction

from the Chief

Minister. Though Shri

Jadeja says that he had

gone to the DGP’s

office on instructions

of Shri Gordhan

Zadafia, MoS (Home)

this is highly

unbelievable. It is

obvious that the Chief

Minister had

positioned these 2

Ministers in highly

sensitive places which

should not have been

done. Infact, these 2

Ministers could have

taken active steps to

defuse the riots, but

313

they did nothing,

which speaks volumes

about the decision to

let the riots happen. It

does not appear that

these 2 Ministers

immediately called the

CM and told him about

the situation at

Gulberg and other

places.

9. SIT merely relied

upon the statement of

the police officers to

conclude that these 2

Ministers did not give

any instructions to

Police department, but

it appears highly

unlikely that 2 Cabinet

Ministers of the

Government of Gujarat

would have not given

some kind of directions

when the CM had

directed them to

remain present.

10. It is obvious that

the 2 Ministers were

fully aware of the

developing situation in

Gulberg Society,

Naroda Patiya etc. in

Ahmedabad City. They

were duty bound to

convey the situation to

the Chief Minister and

were required to do

everything

314

-----------------------------

Page: 401

possible to save loss of

lives. If the stand of the

CM that these 2

Ministers were

positioned so as to

effectively control the

law and order situation

is correct, then there

would have been a far

quicker action to

control the riots in

Gulberg Society and

Naroda Patiya atleast.

11. No tangible action

seems to have been

taken by the police

high ups in the Police

Department, namely

Commissioner of

Police, to control the

riots at Gulberg

Society. Gulberg

Society is not very far

away from the Office of

Commissioner of

Police, Ahmedabad.

XI. The allegation

is that Shri

Narendra Modi

did not visit the

riot affected areas

of Ahmedabad

immediately,

though he visited

Godhra on the

The SIT has come to the

conclusion that the

action of Chief Minister

appeared to be

discriminatory.

12. This is one of the

circumstances which

indicate that the

Hon’ble Chief Minister

had not taken enough

steps to ensure that

riots in Ahmedabad

City were immediately

315

day of the

incident.

controlled by his direct

intervention.

XII. It is alleged

that on 01-03-

2002, Shri

Narendra Modi

said in a television

interview that the

reaction of the

Hindus was due

to the action by

the Muslims,

which seems to

justify the riot.

The SIT has come to the

conclusion that the

reaction of the Chief

Minister to violence at

Gulberg Society and

Naroda Patiya was not

serious. However, the

SIT has concluded this

would not be sufficient

enough to make out a

case against Shri Modi.

13. The observation of

Shri Modi in a

television interview on

01-03-2002 clearly

indicates that there

was an attempt to

justify the violence

against the minority

community. This

indicates a certain

approach. The

statement made by

Shri Modi cannot be

seen in isolation. It has

to be seen in

conjunction with other

facts mentioned

hereinabove which

provides sufficient

justification for a

detailed investigation

in the matter.

Observations made by Ld. Amicus Curiae:

It would be impossible to get anyone present in the meeting on 27-

02-2002 to speak against Shri Modi, especially the bureaucracy 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 not available.

There is no reason for him to make a wrong statement. He was

willing to make a statement if he was protected from legal

repercussions of disclosing what transpired in the meeting.

Result of further Investigation:

Further investigation in this regard revealed that the

information about the burning of a railway coach of Sabarmati

Express near Godhra Railway Station was received by Shri Narendra

316

Modi, Chief Minister on 27.02.2002 at about 0900 hrs. from Shri

Ashok Narayan, the then ACS

-----------------------------------------------------------------------------------------

Page: 402

(Home). On receipt of the information, Shri Narendra Modi held a

meeting at around 1030 hrs. with Shri Gordhan Zadafia, the then

MoS (Home), Shri Ashok Narayan, the then ACS (Home), Shri K.

Chakravarthi, the then DGP, Shri P.C. Pande, the then CP,

Ahmedabad City and other personal staff of CM. Till then, no specific

information was available about the number of casualties and the

injured persons. In this meeting, Shri Narendra Modi emphasised

that the culprits responsible for the incident should be apprehended

and not allowed to escape. No minutes of the meeting were prepared.

However, Shri Ashok Narayan had prepared a note on the basis of

information provided by DGP for CM and MoS (Home) to make a

statement in the Assembly as the question relating to the Godhra

incident was likely to be raised in the Assembly which was in Session.

The Chief Minister had given directions that the steps should be

taken not to delay the medical help to surviving passengers and also

to impose curfew to avoid any untoward incident. Godhra being a

communally sensitive place. The Chief Minister had also instructed

that the senior officers and the extra force, if required, must reach

Godhra without any delay.

Around 1200 hrs, Chief Minister attended the Assembly session and

a call attention motion relating to the Godhra incident tabled by Shri

Punjabhai Vansh, MLA came up for discussion at 1300 hrs, but the

Hon'ble Member was not present in the House. Dr. Mayaben Kodnani,

MLA from Naroda spoke on the said issue. Shri Gordhan Zadafia, the

then MoS (Home) made a statement in the House based on the aforesaid

note prepared by Shri Ashok Narayan, the then ACS (Home). During zero

hour, Shri Narendra Modi made a statement that he had discussed

the matter with the then Prime Minister Shri Atal Bihari Vajpaee and

announced an ex-gratia payment of Rs. 2,00,000/- each to the next

of kin of those killed in the Godhra incident and also ordered a High-

Level Inquiry into the incident. All these facts were mentioned in

the Assembly proceedings, as well as in the press release issued by

the Govt. of Gujarat on 27-02-2002.

317

Shri Gordhan Zadafia, the then MoS (Home) left for Godhra by road

around 1400 hrs. and reached there at about 1630 hrs, Shri Ashok Bhatt,

the then Health Minister had already reached Godhra around 1200 hrs.

It may be mentioned here that 27-02-2002 was a budget day in the

Assembly and after the completion of the budget speech by Shri Nitinbhai

Patel, the then Finance Minister, the Assembly proceedings were over at

about 1500 hrs. Shri Narendra Modi left for Ahmedabad airport around

1530 hrs for his onward journey to Vadodara / Godhra. Shri Narendra

Modi reached Ahmedabad airport at 1600 hrs and left for Vadodara

by Govt. aircraft. The Chief Minister reached Vadodara at about 1630

hrs. and then proceeded to Godhra by helicopter immediately, where

he reached around 1645 hrs. He was accompanied by Shri Anil

Mukim, the then Addl. PS to CM and Shri Jagdish Thakker, PRO to

CM. According to the press release issued by the Govt. of Gujarat on

27-02-2002, CM visited the scene of occurrence at Godhra Railway

Station and then went to Civil Hospital and saw the injured admitted

there. Thereafter, he went to Collectorate and held meeting with the

Ministers present there namely Shri Ashok Bhatt, Shri Gordhan

Zadafia, Shri Bhupendra Lakhawala, Shri Prabhatsinh Chauhan (all

Ministers in the State Govt.) Shri Bhupendrasingh Solanki, the then

Member, Lok-Sabha from Godhra, Collector & District Magistrate,

Godhra, Police Officers and Railway Officers. The Chief Minister had

also met the press briefly thereafter. As per media reports Shri

Narendra Modi said the Govt. would ensure the maintenance of peace

in the State and the Govt. would not be lacking in discharge of its

duty. He also said that tragedy was unparallel in the history of

Gujarat and assured the people that culprits would be punished. At

no point of time, Shri Jaydeep Patel, VHP leader, who was at Godhra

on that day, had met him. The Chief Minister left Godhra by road

around 1945 hrs (after the sunset) and reached Vadodara airport at

about 2130 hrs. Shri Narendra Modi left for Ahmedabad by Govt.

aircraft at 2130 hrs and reached his official residence at Gandhinagar

at about 2230 hrs.

Investigation has further revealed that a law & order meeting

was held by Chief Minister at his residence around 2300 hrs, which

was attended by Smt. Swarna Kanta Varma, the then acting Chief

Secretary, Shri Ashok Narayan, the then ACS (Home) Dr. P.K. Mishra,

the then Principal Secretary to CM, Shri Anil Mukim the then Addl.

PS to CM, Shri K. Chakravarthi, the then DGP, Shri P.C. Pande, the

then CP, Ahmedabad City, Shri K. Nityanandam, the then Secretary

(Home) and Shri Prakash S. Shah, the then Addl. Secretary (Law &

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order). Shri G.C. Raiger, the then Addl. DG (Int.), who was on casual

leave and had returned to Ahmedabad on 27-02-2002 evening, had

not attended the same. However, Shri Sanjiv Bhatt, the then Deputy

Commissioner of Intelligence (Security) has claimed to have

attended the said meeting at the instance of DGP.

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All the aforesaid officials have been re-examined and their

statements recorded u/s 161 Cr.P.C. Their deposition in brief is given

below:-

(i) According to Smt. Swarna Kanta Varma, the then acting Chief

Secretary, she was present in the said meeting, but she can not recollect,

as to whether any Minister or other police/Govt. officials (besides the

individuals indicated above) were present there. On being shown the

photograph of Shri Sanjiv Bhatt, she has stated that she can not

recollect having met or seen him in this meeting or in any meeting

during the period of her charge as Chief Secretary, Smt. Swarna

Kanta Varma has stated that Chief Minister had said in the aforesaid

meeting that the Godhra incident was very unfortunate and that it

should be handled with a firm hand. However, she has denied that

there was any mention by Chief Minister of balancing action against

Hindus and Muslims or Muslims be taught a lesson or Hindus be

allowed to vent their anger.

(ii) Shri Ashok Narayan, the then ACS (Home) has stated that Shri

Sanjiv Bhatt, the then DC (Security) did not attend the said meeting

on 27-02-2002. He has further stated that no Minister was present

in the said meeting. He has also stated that DGP gave sequence of events

of Godhra incident, possible repercussions of the same and also about his

requirement of additional forces. He has denied any utterances by Chief

Minister to the effect that the police approach of balancing action

against Hindus and Muslims would not work any more, Muslims

should be taught a lesson and that Hindus should be allowed to vent

their feelings/anger. He has, however, stated that Chief Minister did

say that the people were outraged by the Godhra incident and

therefore, effective steps should be taken to control the communal

riots.

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(iii). Shri P.K. Mishra, the then Principal Secretary to CM has

categorically denied the presence of Shri Sanjiv Bhatt, the then DCI

(Security) in the meeting of 27-02-2002. He has further denied the

presence of any politicians in the said meeting. As regards the

observation allegedly made by CM that for too long the Gujarat Police

had been following the principle of balancing actions against the

Hindus and Muslims while dealing with the communal riots in

Gujarat; the situation warranted that the Muslims be taught a lesson

to ensure that such incidents do not recur and that the emotions

were running very high amongst the Hindus and they be allowed to

vent their anger, Shri Mishra has stated that it was not true that

Chief Minister talked in these terms. He has further stated that in this

meeting, officials of the Home Department and police officers apprised CM

about the action already taken to prevent any untoward incident in view

of the emerging situation and the bandh call. He has also stated that

CM briefed the officials about his Godhra visit and impressed upon

them to take all possible steps including preventive arrests to avoid

any untoward incident.

(iv). Shri K. Chakravarthi, the then DGP has stated that Shri G.C. Raiger,

the then Addl. DG (Int.) was on casual leave on 27-02-2002, and

therefore, he did not attend the said meeting. He does not recollect, as to

whether Shri Raiger contacted him over phone on 27-02-2002 evening

and informed him about his arrival at Ahmedabad. However, he has

categorically stated that Shri Sanjiv Bhatt did not attend the said

meeting on 27-02-2002 night at CM's residence and no such

instructions were given by Chief Minister. Shri Chakravarthi has

added that in case Shri G.C. Raiger was available at Ahmedabad, he

would have given instructions to him to attend this meeting through the

State Control Room rather than asking Shri Sanjiv Bhatt to attend.

According to Shri Chakravarthi Shri O.P. Mathur, the then IGP (Admn. &

Security) was also available and could have been called in the said

meeting instead of calling a junior officer of SP level (Shri Sanjiv Bhatt).

Shri Chakravarthi has further stated that as per his recollection,

none of the Ministers/politicians had attended the said meeting on

27-02-2002. Shri Chakravarthi has also stated to have briefed CM

about the bandobast made by him in the wake of the bandh call given

by VHP on 28-02-2002, and also about the additional requirement of

forces. Shri Chakravarthi had also informed CM about the appeal

made by him to the general public on Door-Darshan/All India Radio

to maintain peace. As per Shri Chakravarthi, CM had said that the

Godhra incident was very serious and bound to affect the public at

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large and therefore, adequate arrangements should be made. Shri

Chakravarthi has stated that CM had also spoken about the Govt.

decision to transport dead bodies of Godhra victims to Ahmedabad

City by road and to keep them in Sola Civil Hospital, which was then

located on the outskirts of Ahmedabad City. According to Shri

Chakravarthi, this decision was not opposed by anyone in the

meeting, as a considerable number of victims belonged to

Ahmedabad and nearby places. Regarding the allegation against Chief

Minister for speaking in the terms that for too long the Gujarat Police

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had been following the principle of balancing the action against the

Hindus and Muslims etc. and the Hindus be allowed to vent their

anger, Shri Chakravarthi has denied any such utterances by Chief

Minister in the meeting. He also denied having spoken to Shri R.B.

Sreekumar, the then Addl. 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 Bhatt in law & order meeting

called by Chief Minister on 27-02-2002 night. He has further stated

that the meeting lasted for 15-20 minutes and that the discussions

centred around maintenance of Law & order in view of the bandh call for

the next day, its likely repercussions and availability of forces. As regards

the allegations against Chief Minister about having said that for too

long the Gujarat Police had been following the principle of balancing

the actions against Hindus and Muslims etc. etc. and the Hindus be

allowed to vent their anger, Shri Pande has categorically stated that

no such instructions to allow any freedom to any law breaker were

given by Chief Minister. He has out rightly denied the presence of

any Minister or Shri Sanjiv Bhatt, the then DCI (Security) in the said

meeting. Regarding the Govt decision to transport the dead bodies of

Godhra Victims to Ahmedabad, Shri Pande has stated that he does not

recollect the exact talks, which took place in the said meeting, but the

sum and substance of the discussions was that the dead bodies were

being brought to Ahmedabad City with a view to facilitate the

relatives of the deceased persons to identify and claim the same.

(vi) Shri Anil Mukim, IAS, the then Addl. PS to CM has stated that he

attended the said meeting for some time and then left after taking

321

permission from Shri P.K. Mishra, IAS (Retd.) the then Principal Secretary

to CM. He has further stated that as long as he was present in the

meeting, general discussions were held regarding the Godhra incident

and necessary preventive measures required to be taken under the

circumstances were also discussed. He has out rightly denied any

utterances/instructions by CM about Muslims being taught a lesson

and the Hindus being allowed to vent their anger, in his presence. He

has denied the presence of Shri Sanjiv Bhatt, the then DCI (Security)

in the said meeting. He has also denied the presence of any Minister

or politician in the meeting.

(viii) Shri K. Nityanandam, the then Secretary (Home) has stated that

he attended the law & order meeting called by the Chief Minister at his

residence on 27-02-2002, at about 2300 hrs. He has further stated that

the deliberations in the meeting mainly revolved around the Law &

order situation post Godhra 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 Sanjiv Bhatt in

the said meeting. He has also denied any such alleged observations

made by the Chief Minister about Muslims being taught a lesson etc.

etc. and the Hindus be allowed to vent their anger. According to Shri

K. Nityanandam, he does not recollect Shri Sanjiv Bhatt being

present in any law & order meetings called by the Chief Minister as

IGP/Addl. DGP rank officer were available in the State Intelligence

Bureau to present the issues relating to intelligence.

(ix) Shri Prakash S. Shah, the then Addl. Secretary (Law & order) has

confirmed to have attended the Law & order meeting called by the Chief

Minister at his residence on 27-02-2002 night. He has further stated

that the Chief Minister gave an account of Godhra incident, while

Shri Chakravarthi and Shri Pande briefed CM about the possible

repercussions of Godhra incident about the arrangements and

bandobast made by them and also about the deployment of forces.

According to Shri Shah, the Chief Minister instructed all the officers

that communal peace and harmony be maintained at all costs and all

possible steps be taken to control the possible communal flare up.

He has denied the presence of any Minister or Shri Sanjiv Bhatt in

the said meeting. He has further stated that the Chief Minister did

not say anything on the lines of the police approach of balancing

action against Hindus and Muslims and also that the Hindus should

be allowed to vent their anger.

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(x) Shri Sanjiv Bhatt, the then DCI (Security) stated that he received

intelligence inputs on 27-02-2002, regarding the despatch of dead bodies

from Godhra to Ahmedabad under police escort, the State supported

bandh call and the intention of the Sangh Parivar activists to parade the

dead bodies in the form of funeral procession in communally sensitive

areas of Ahmedabad City. He has claimed to have attended a late night

meeting of 27-02-2002 called by the Chief Minister at his residence about

which he was intimated by State IB Control Room and State Police Control

Room that Shri K. Chakravarthi, the then DGP wanted him to accompany

the latter in the said meeting. Significantly; at enquiry stage Shri Sanjiv

Bhatt 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 to Ahmedabad on

27.02.2002 evening. This fact has been confirmed by Shri G.C. Raiger,

the then Addl. DG (Int.), who has stated to have called DGP and informed

about his availability from the evening of 27.02.2002. Moreover, Shri P.

B. Upadhay, the then DCI (Communal), the concerned officer dealing with

the communal subject has also stated to have curtailed his casual leave

on 27.02.2002 and was available in the office. He also stated that he

had accompanied Shri K. Chakravarthi in the latter's car from DGP's

office to CM's residence and claimed that he attended the said

meeting, which was also attended by Incharge Chief Secretary Smt.

Swarna Kanta Varma, 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 then Secretary

(Home). However, he is unable to recollect, as to whether Shri P.K.

Mishra, the then Principal Secretary to CM was present in the said

meeting or not Shri Bhatt has further stated that to the best of his

recollection, no politician/Minister was present in the said meeting.

He has also stated that Shri G.C. Raiger, the then Addl. DG (Int.) did not

attend the said meeting being on casual leave and that he was not aware,

as to whether Shri Raiger had returned to Ahmedabad on 27-02-2002

evening. He has denied to have contacted Shri Raiger on 27-02-2002

evening, at his residence. Shri Sanjiv Bhatt has claimed that he used to

attend the intelligence related meetings called by the Chief Minister. As

per Shri Bhatt, this meeting was essentially a Law & order review

323

meeting and the main issues discussed during the said meeting

revolved around the bandh call given by VHP and ruling BJP as well

the decision to bring the dead bodies of Godhra victims to

Ahmedabad. Shri Sanjiv Bhatt has also stated that Shri P.C. Pande,

the then CP, Ahmedabad City had strongly opposed the Govt.

decision for the transportation of dead bodies of Godhra victims to

Ahmedabad as the same was likely to lead to serious communal riots

in Ahmedabad City and these views were supported by Shri K.

Chakravarthi, the then DGP. According to Shri Sanjiv Bhatt, Shri

Chakravarthi had conveyed to CM that the available resources of

Gujarat Police were over stretched to cope with the law & order

situation that was likely to arise in the wake of bandh call given by

the VHP on the next day and had expressed his inability to

supplement the manpower resources of CP, Ahmedabad City. Shri

Sanjiv Bhatt has stated that as per his recollection, 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 then acting Chief Secretary. Shri Sanjiv Bhatt has

further stated that DGP and CP, Ahmedabad City tried to impress upon

the Chief Minister that the bandh call given by VHP on 28-02-2002, which

was supported by the ruling party BJP was not a good idea, as far as the

law & order situation of the State was concerned but the Chief Minister

did not seem to be convinced by their arguments and stated that the

incident like burning of kar-sevaks at Godhra could not be tolerated.

According to Shri Bhatt, CM impressed upon the gathering as below :-

"That for too long the Gujarat Police had been following the

principle of balancing the actions against the Hindus and

Muslims while dealing with the communal riots in Gujarat. This

time the situation warranted that the Muslims be taught a

lesson to ensure that such incidents do not recur ever again. The

Chief Minister Shri Narendra Modi expressed the view that the

emotions were running very high amongst the Hindus and it

was imperative that they be allowed to vent out their anger".

According to Shri Sanjiv Bhatt, no minutes of the meeting were

prepared by him or DGP, but he had no knowledge as to whether any

minutes were kept by CM's office or Home Department. He also claimed

of making a mention of the said meeting in his movement diary for

February, 2002. Shri Sanjiv Bhatt has further stated that he expressed

his opinion against the decision of BJP to support the bandh call given by

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VHP and also the decision of the administration to-bring the dead bodies

of the victims from Godhra to Ahmedabad City. He also stated that he

expressed a view that the taking out of the funeral procession of the

victims in the respective areas would lead to major communal violence in

Ahmedabad City and other communally sensitive areas across the State.

Shri Sanjiv Bhatt stated that he took leave thereafter from Shri K.

Chakravarthi, the then DGP, and returned to state IB office in order to

send alert messages and instructions to the concerned police/intelligence

units. Subsequent to the aforesaid meeting at CM's residence, Shri Bhatt

has claimed to have issued several messages to the Police units as well as

the field units of the IB with respect to the developing situation including

the possibility of wide spread communal violence during the Gujarat

bandh and wherein, he reiterated to different CsP and SSP to take all

possible measures to prevent untoward incidents in their respective

jurisdiction. Surprisingly, he

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informed everyone about it but did not inform his own Head of the

Department i.e. Shri G.C. Raiger, whom he had allegedly represented in

the meeting and whose present in the station was very much in his

knowledge. He has denied to have contacted Shri G.C. Raiger over phone

in the night of 27-02-2002 and has stated that he briefed Shri Raiger

about the said meeting and the deliberations that had taken place, when

he had attended office on the next day, i.e. 28-02-2002 morning, at about

1000 hrs which has been denied by Shri Raiger. Interesting, the call

details of Govt. mobile phone of Shri Sanjiv Bhatt show that he was at

Ahmedabad till 1057 hrs on 28.02.2002. He has further claimed that the

details of the discussions held during the said meeting were not

mentioned in any of the official correspondence/reports as he had

attended the said meeting in the capacity of an intelligence Officer.

Further, Shri Sanjiv Bhatt has claimed that the reports had started

coming in the office of the State IB regarding the preparations made by

the cadres of Sangh Parivar to carry out strict enforcement of the bandh

call given by them on 28-02-2002, and that same should be available in

the records of State IB. Shri Sanjiv Bhatt has also claimed to have

attended the second meeting at CM's residence on 28-02-2002 at about

1030 hrs along with Shri G.C. Raiger, the then Addl. DG (Int), in which

325

the deployment of manpower during the Gujarat bandh was discussed to

monitor the developing situation and that this meeting was also attended

by Shri K. Chakravarthi, the then DGP, Shri Anil Mukim, the then Addl.

PS to CM, Late Ashok Bhatt, the then Health Minister and Shri I.K.

Jadeja, the then Urban Development Minister. Shri Bhatt has further

stated that on the conclusion of the said meeting, the Chief Minister had

instructed DGP that Late Ashok Bhatt and Shri I.K. Jadeja would be

assisting the police in monitoring the situation and that all necessary

assistance must be rendered to the Ministers. Shri Sanjiv Bhatt has also

stated that CM had not specifically instructed as to how the Ministers

would assist the police. Further, according to Shri Sanjiv Bhatt, the issue

relating to the requisitioning of the Army was also discussed on the basis

of the suggestions given by DGP and Addl. DG (Int.), but the Chief

Minister seemed to be reluctant and was of the view that they should wait

and watch, as to how the situation developed and not rush for the

requisitioning of Army.

According to Shri Bhatt, he returned to the Police Bhavan and went

to his chamber on the second floor, but shortly thereafter went to DGP's

chamber around 1100 hrs to obtain his signature for requisitioning

additional forces and found Late Ashok Bhatt and Shri I.K. Jadeja seated

in his chamber, where everyone took tea. Shri Sanjiv Bhatt has further

stated that sometime later, he visited State Control Room on the first floor

of Police Bhavan, to collect some documents and saw Shri I.K.Jadeja and

his staff members occupying the chamber of Dy.SP State Control Room.

Finding this arrangement to be little odd and inconvenient, with the

permission of the DGP he shifted Shri Jadeja and his staff to the chamber

of Shri P.C. Thakur, the then IGP, who was on leave. Later during the day,

Shri Sanjiv Bhatt came to know that Shri Jadeja had left the Police

Bhavan, However, as per Shri Sanjiv Bhatt, Shri Jadeja did not interfere

with the working of State Police Control Room on 28-02-2002, or

thereafter. Shri Sanjiv Bhatt has also claimed that he came to know from

his staff later that Late Ashok Bhatt was stationed in Ahmedabad City

Police Control Room on 28-02-2002.

On being questioned, as to whether deliberations in CM's meeting

or the developments in the Control Rooms were mentioned by him in any

of the reports submitted to the senior officers at any stage, Shri Sanjiv

Bhatt has claimed that he had attended the said meeting along with the

DGP and Addl. DG (Int.) as a Staff Officer and as such there was no

necessity to submit any report to them. Shri Sanjiv Bhatt has claimed to

have received information about a mob attack on Gulberg Society around

1130 hrs on 28-02-2002, and he had deputed PI Shri Bharwad of

326

Ahmedabad Regional Office located in Meghaninagar to go to Gulberg

Society, to report on the developing situation and inform the State IB.

According to Shri Bhatt, he had conveyed these developments to DGP and

Addl. DG (Int.) personally. In view of the fact that Late Ahesan Jafri, Ex-

MP was residing in the Gulberg Society, he (Sanjiv Bhatt) telephonically

conveyed the details about the developing situation to the Chief Minister

directly. However, he does not recollect, as to whether he had spoken to

the Chief Minister over landline or over the mobile phone of Shri O.P.

Singh, PA to CM. Shri Sanjiv Bhatt has stated that he attended another

meeting at CM's residence on 28.02.2002 afternoon for the assessment of

the ongoing situation, which was attended to by ACS (Home), DGP, Addl.

DG (Int.), and Secretary (Home), in which the Chief Minister had agreed

to send a formal requisition to Govt. of India for deployment of Army. He

has claimed that he briefed the Chief Minister about the ongoing

developments at Gulberg Society and also about the threat to the life of

Late Ahesan Jafri and other residents of the Gulberg Society Shri Sanjiv

Bhatt has gone to the extent of claiming that the Chief Minister took him

aside after the meeting and informed him that he had learnt that Late

Ahesan Jafri had

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opened fire on Hindus during earlier communal riots. According to Shri

Sanjiv Bhatt, the Chief Minister asked him to dig out all the facts

pertaining to earlier instances, wherein Late Ahesan Jafri had opened fire

during the past communal riots. Shri Bhatt claimed that 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 urgent matters connected with the riots. Shri

Sanjiv Bhatt has denied having submitted any report to his department

and claimed that he had attended this meeting as a Staff Officer to the

DGP or AddI DG (Int.), which is incorrect as there was no post of Staff

Officer to Addl. DG (Int.).

On being questioned, as to why did he not appear as a witness in

response to a public notice issued by SIT on 11-03-2008, he claimed that

he did not disclose the same to anyone, as it would not have been

appropriate on his part to divulge any information that he was privy to as

an Intelligence Officer unless he was under a legal obligation to do so. He

327

has also stated that he did not file any affidavit or appeared before any

commission or any 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 alleged instruction

given by the Chief Minister were passed on to the field units by any of the

officers, who had attended the meeting on 27-02-2002. The stand taken

by Shri Sanjiv Bhatt is not acceptable on account of the fact that firstly it

was essentially a law & order meeting, in which many civilian officers were

present and there was nothing secret about it. Furthermore, Shri Bhatt

has various opportunities and legal obligations to disclose these facts, if

true, firstly to Shri R.B. Sreekumar, the then Addl. DG (Int.), who had

asked him to provide any oral and documentary relevant fact to be

included in his affidavit relating to riots Incidents on behalf of State IB

required to be filed before Nanavati Commission,

Secondly, Nanavati Commission a legally constituted body under

Commission of Inquiry Act had issued a public notice calling upon any

one having knowledge about the incident of issues involved before it, to

file an affidavit and furnish information, but Shri Sanjiv Bhatt did not file

any affidavit. Thirdly, SIT, legally constituted by the Hon'ble Supreme

Court of India had also issued a public notice on 11.04.2008 calling upon

the people to come forward and give information relating to the riots. but

Shri Sanjiv Bhatt conveniently did not come forward. Fourthly. another

opportunity was given to him in November, 2009, to make a statement

during the course of inquiry ordered by the Hon'ble Supreme Court of

India, but Shri Sanjiv Bhatt took the plea that it would not be

professionally appropriate on his part to divulge the exact nature of

discussion that took place during the said meeting, unless he was duty

bound to disclose the same under legal obligation.

Shri Sanjiv Bhatt, on his own and without being summoned

appeared before the IO on 25-03-2011, i.e. two days after the recording of

his statement, along with one constable named Shri K.D. Panth and

requested that his (Bhatt's) further statement should be recorded. In his

further statement, Shri Sanjiv Bhatt mentioned the names of two

Assistant Intelligence Officers (AIOs) namely, Shri Shailesh Raval and

Shri K.D. Panth, who used to accompany him to most of the meetings. He

has further stated that subsequent to the recording of his statement on

21 & 22.03.2011, he had been able to recollect that Shri K.D. Panth had

followed him to CM's residence with the files in his staff car from DGP's

office, whereas he himself had accompanied DGP Shri K. Chakravarthi in

the latter's staff car. He has also stated that Shri K.D. Panth returned

with him in his car to Police Bhavan and remained in the office till late in

328

the night and attended to urgent official work. Shri Sanjiv Bhatt also

informed that then Shri Tarachand Yadav, was his driver who is presently

attached to 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. 9825049398.

During the course of further investigation seven senior

administrative and police officers namely, Shri Ashok Narayan, the then

ACS (Home), Shri P.K. Mishra, the then Principal Secretary to CM, Shri

K. Chakravarthi, the then DGP, Shri P.C. Pande, the then CP Ahmedabad

City, Shri Anil Mukim, the then Addl. PS to CM, Shri K. Nityanandam, the

then Secretary (Home) and Shri Prakash S. Shah, the then Addl. Secretary

(L&O), who had been earlier examined during 2009-10 have categorically

stated that Shri Sanjiv Bhatt, the then DCI (Security) was not present in

the said meeting held at CM's residence on 27.02.2002 night. During the

earlier inquiry, three participants of this meeting namely Shri

Nityanandam, Shri Anil Mukim and Smt. Swarna Kanta Verma were not

asked this question while three others namely Shri Ashok Narayan, Shri

P.C.Pande and Shri P. K. Mishra had stated that they did not recollect.

Shri P.S. Shah had not been examined during the inquiry. However, Shri

K. Chakravarthi had

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stated at that stage also that Shri Bhatt was not present in this meeting.

They have also confirmed that no Minister/Politician was present in the

said meeting.

Smt. Swarna Kanta Varma, being ACS (Health & Family Deptt.) and

the then acting Chief Secretary was never posted in the Home Department

and therefore, she did not know Shri Sanjiv Bhatt, the then DCI (Security).

On being shown the photograph of Shri Sanjiv Bhatt, she has stated that

she cannot recollect having ever met or seen him in any meeting.

According to Smt. Swarna Kanta Varma, the Chief Minister had stated in

the said meeting that incident in Godhra was very unfortunate and it

should be dealt with a heavy hand. She also does not recollect having

seen any Cabinet Minister in the said meeting. All the participants of the

meeting held on 27.02.2002 night, have denied that CM had uttered any

words on the lines that Gujarat Police had been following the principle of

balancing the actions against the Hindus and Muslims while dealing with

329

the communal riots in Gujarat and that the situation warranted that

Muslims be taught a lesson to ensure that such incident do not recur ever

again and that the emotions were running very high amongst the Hindus

and they be allowed to vent their anger.

There is unanimity amongst all the participants of the said meeting

that no Minister/politician was present in the meeting. Shri Bhatt has

contended that Shri P.C. Pande, the then CP Ahmedabad City had

strongly opposed the Government's decision regarding transportation of

the dead bodies to Ahmedabad City, as the same was likely to lead to

communal riots and that his views 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 substance of the meeting was that the dead bodies were being brought

to Ahmedabad City with a view to facilitate the relatives of the deceased

to identify and claim the same.

Shri K. Chakravarthi, the then DGP has clearly stated that the

decision of the Govt. To bring the dead bodies of Godhra victims at

Ahmedabad City, was not opposed by anyone on the ground that a large

number of victims belonged to Ahmedabad and nearby places, which were

easily approachable, from Ahmedabad. This would go to show that Shri

Sanjiv Bhatt was giving an imaginary account of the deliberations of the

meeting and did not know as to what exactly transpired there. Further, it

has been contended by Shri Sanjiv Bhatt that both DGP and CP,

Ahmedabad City had tried to impress upon the Chief Minister that the

band call given by the VHP on 28-02-2002, which was supported by the

ruling party BJP was not a good idea as far as the Law & order situation

of the State was concerned and that the Chief Minister was not convinced

by their arguments. In this regard, Shri K. Chakravarthi, the then DGP

has stated that in the night of 27.02.2002, he did not know that the bandh

call given by the VHP was supported by the ruling party BJP and as such

there was no question of any such opposition by him. Shri P.C. Pande has

also stated that on 27.02.2002, he did not know that the bandh was

supported by the BJP and came to know about it only on 28.02.2002,

through newspaper reports. All the participants of the meeting have

stated that the Chief Minister had expressed the apprehension that the

Godhra incident was very serious and bound to affect the public at large,

as a result of which there could be repercussions and therefore, adequate

bandobast was needed to avoid any untoward incident.

Shri Sanjiv Bhatt has claimed that he mentioned the fact of

having attended the said meeting on 27-02-2002 night in his

330

movement diary. However, the State IB has reported that no such

diary was being submitted by Shri Sanjiv Bhatt, Shri G.C. Raiger, the

then Addl. DG (Int.) has stated that there was no such system of

submitting any monthly movement diary by DC and that Shri Sanjiv

Bhatt had never submitted any such diary. Shri Sanjiv Bhatt have

claimed to have briefed Shri G.C, Raiger, the then Addl. DG (Int.) on

28.02.2002, at about 1000 hrs about the alleged meeting held by the

Chief Minister and also about the illegal instructions given by the

latter. This claim is absolutely false and is contradicted from the call

detail records of the Govt. mobile phone no. 9825049398 of Shri

Sanjiv Bhatt, which show that the location of Shri Sanjiv Bhatt was

at Memnagar, Ahmedabad till 10:57:43 hrs on 28.02.2002. Further,

Shri Sanjiv Bhatt has claimed that he did not submit any report

about the meeting held by the Chief Minister at his residence on

27.02.2002 night, as he attended the meeting as a Staff Officer to

DGP/Addl. DG (Int.). This contention put forward by Shri Sanjiv Bhatt

is absurd because there was no post of Staff Officer to Addl DG (Int.)

and Shri K. Chakravarthi has denied that Shri Sanjiv Bhatt was

posted as Staff Officer to DGP, as the Staff Officer was of the rank of

Dy. SP and not SP Shri Sanjiv Bhatt has contended that he did not

file affidavit nor appeared as a witness before the SIT in response to

a public notice issued by the SIT, as it would not have been

appropriate on his part

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to divulge any information that he was privy to as an intelligence

officer unless he was under a legal obligation to do so. In this

connection, it would not be out of place to mention here that

assuming for the time being that Shri Sanjiv Bhatt attended the

alleged meeting of 27.02.2002 the same was essentially a law & order

meeting attended by the various officials of State Administration and

therefore the question of oath of secrecy or application of the Official

Secrets Act does not arise because it was neither a secret meeting

nor would the revelation of the contents of the said meeting

jeopardized the public interest. Shri Sanjiv Bhatt has used the

weapon of the Official Secrets Act only as a pretext with a view to

justify a long delay of nine years just because an official of the

intelligence unit attended a law & order meeting, the same does not

331

became a secret meeting for which a privilege of secrecy is being

claimed by Shri Sanjiv Bhatt. In any case, Nanavati Commission and

SIT have been set up under the provisions of law of the land and all

the citizens/ officials are legally bound to divulge the information

available with them which are relevant to the terms of reference/

crimes of the Commission being investigation by SIT.

In view of this, the explanation put forward by Shri Sanjiv Bhatt

does not hold good Shri Sanjiv Bhatt had gone to the extent of saying

that he learnt from the other staff that Late Ashok Bhatt was

stationed in Ahmedabad City Police Control Room, which has no

value, whatsoever, being the hearsay evidence. The claim of Shri

Sanjiv Bhatt that he had opposed the bringing of dead bodies to

Ahmedabad from Godhra, is belied from the fact that all the

participants of the said meeting have categorically stated that Shri

Sanjiv Bhatt did not attend the said meeting.

Shri Sanjiv Bhatt has specifically claimed that he had

accompanied the DGP Shri K. Chakravarthi to the residence of the

Chief Minister in the night of 27.02:2002 in latter's staff car, which

has been denied by Shri K. Chakravarthi. The statement of Shri K.

Chakravarthi has been supported by the entry made by Shri K.

Chakravarthi in his staff car log book written by him on the 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 corroborated by his PSOs namely Shri Dilip Ahir and Shri

Dharmpal Yadav, who have categorically stated that Shri Sanjiv

Bhatt never accompanied the DGP in his staff car.

It is a fact that Shri Sanjiv Bhatt did send four wireless messages

on 27-02-2002 to all the jurisdictional officers to take all precautionary

measures to prevent communal riots as Godhra incident was likely to

have State wide repercussions. These wireless messages were sent by him

as DCI (Communal) as Shri P.B. Upadhyay, the then DCI (Communal)

was on casual leave on that day i.e. 27-02-2002. However, he had

resumed duty in the evening. Significantly, on 28-02-2002, all the

concerned wireless messages were sent by Shri P.B. Upadhyay, the then

DCI (Communal), who was dealing with the subject. Shri Sanjiv Bhatt as

DCI (Security) had also sent a fax message on 28-02-2002, to Home

Secretary, Gandhinagar with information to PS to CM, PS to MoS (Home),

DGP and Commissioner of Police, Ahmedabad City, in which he had

intimated about a Hindu mob attack on Gulberg Society resulting into

death of atleast 18 persons including Late Ahesan Jafri, Ex-MP and its

332

family members and the attack was continuing. Shri Bhatt had expressed

his apprehension that this incident could have State wide ramifications.

Though no time had been mentioned on this message, yet it appears that

this fax message was sent only after the killings had taken place and the

Gulberg Society had been set on fire. In all probability this message had

been sent on the basis of the fax message sent by PI C.J. Bharwad, the

then PI, Ahmedabad City Regional State IB office at 1700 hrs.

Shri Sanjiv Bhatt has further contended that in view of the fact that

Late Ahesan Jafri, Ex-MP was residing in Gulberg Society, he had

telephonically conveyed the details directly to the Chief Minister either on

landline or on the mobile phone of Shri O.P. Singh, PA to CM. However,

he has not been able to specify on which telephone he rang up the Chief

Minister. Shri O.P. Singh has denied that he received any call from Shri

Sanjiv Bhatt. The call details of Gandhinagar tower are not available as

the same had not been requisitioned by Shri Rahul Sharma, the then SP,

during investigation of the riot cases Notably there is no practice in

Gujarat of SP level officers speaking directly to CM over phone. Further,

Shri G.C. Raiger the then Addl. DG (Int.), who was very much in office on

28.02.2002, has stated that this was totally false and that Shri Sanjiv

Bhatt had never informed him about it.

Shri C.J. Bharwad, the then PI, State IB, Ahmedabad Region has

stated that on 28.02.2002, on the basis of information collected by him

during the riots, he had gone to Gulberg Society Meghaninagar of his own

and passed on the various information reports collected by him

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to State IB Control Room. He has further stated that around 1215 hrs on

28-02-2002, he had sent a message to State IB Control Room that since

Muslims reside in Gulberg Society in Meghaninagar area, a strict watch

should be kept there. He has contradicted the statement made by Shri

Sanjiv Bhatt, the then DCI (Security), and has denied to have any

telephonic discussions with him about the situation in Gulberg Society in

as much as the subject concerned the "Communal" Desk of IB was being

looked after by Shri P.B. Upadhyay, the then DCI(Communal). He has

further stated to have passed on a message at 1450 hrs on 28.02.2002,

that a mob of 3000 rioters had surrounded Gulberg Society. On 28-02-

2002 itself, he had passed on another message at 1700 hrs that a mob of

333

5000 rioters had surrounded and set fire to the Gulberg Society, in which

several persons including Late Ahesan Jafri, Ex-MP had been burnt alive

and that police deployment was required. The version of Shri Bharwad

belies the testimony of Shri Sanjiv Bhatt, the then DCI (Security), who has

claimed that he had given directions to Shri Bharwad to go to the Gulberg

Society and give the latest updates and that Shri Bharwad was in

constant touch with him.

Investigation further revealed that the headquarters of State

Intelligence Bureau is located at Gandhinagar and is headed by an Addl.

DG, assisted by IGP (Security), DIG (Political & Communal) and three

Deputy Commissioners of Intelligence and other officers and supporting

staff. Besides State IB, there are intelligence units headed by Inspectors/

Dy SsP working independently in the Districts. The State IB has been

entrusted with the duties of collection of intelligence in respect of

maintenance of law & order including communal intelligence in Gujarat

State. In brief, the functions, of the State IB relate to collection and

collation of information regarding political, industrial and other similar

development in the State, verification of antecedents, protection and

security of the VIP's, watch over anti-national activities, movement of

foreigners and all other matters pertaining to the internal security,

collection of intelligence regarding all types of communal activities and to

keep the Govt. informed of all these activities 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 Shri S.Kumar in January, 2002.

There were three SP rank officers out of which, Shri Sanjiv Bhatt was

posted as DCI (Security), Shri P.B. Upadhyay as DCI (Political &

Communal) and the third post was DCI (Admn.) which was lying vacant.

It has further come to light that Shri G.C. Raiger was on casual leave from

26.02.2002 to 28.02.2002 and was away to Rajasthan, but returned on

27.02.2002 evening. Shri P.B. Upadyay, the then DCI (Communal) was

on leave from 26.02.2002 onwards to arrange for sacred thread 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 resume duties immediately. Accordingly, Shri

Upadyay had resumed duties on 27.02.2002 evening. However, in his

absence, his work was being looked after by Shri Sanjiv Bhatt, who was

the only other SP rank officer in the State IB.

334

Shri G.C. Raiger has stated that on his return to Ahmedabad on 27-

02-2002, he had come to know about the Godhra incident and had

telephonically informed DGP Shri K. Chakravarthi on 27.02.2002 evening

that he would cut short his leave and come to Gandhinagar, if necessary,

to which the DGP asked him to join on 28.02.2002. Shri Raiger has denied

having been informed by the DGP about the meeting called at CM's

residence on 27.02.2002 late in the night. Shri Raiger denied having

received any information about the meeting from either the State IB

Control Room, State Control Room or even Shri Sanjiv Bhatt, the then

DCI (Security). Shri O.P. Mathur has also denied that he received any

such information about a meeting called at CM's residence on 27.02.2002

night. Shri P.B. Upadhyay, the then DCI (Communal), who had resumed

the duties on 27.02.2002 evening, and used to look after Communal and

Political section and was the concerned officer to be associated with the

said meeting, had also no information about the said meeting thereby

suggesting that no one from the intelligence was required to attend the

said meeting.

Shri K. Chakravarthi, the then DGP has stated that he had gone to

studios of Door-Darshan, Ahmedabad City on 27-02-2002 late in the

evening, for the telecast of an appeal to the general public to maintain

communal harmony and peace, when he received a message from State

Control Room that CM had called for a meeting at his residence at

Gandhinagar around 2230 hrs. Shri Chakravarthi has stated that he

straight away went to CM's residence at Gandhinagar and reached there

a little earlier and waited as CM had not arrived from Godhra by

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that time. According to Shri Charkravarti, Smt. Swarna Kanta Varma, the

then acting CS, Shri Ashok Narayan, the then ACS (Home), Shri P.C.

Pande, the then CP, Ahmedabad City and Shri K. Nityanandam, the then

Secretary (Home) arrived only subsequently. Shri Chakravarthi has

categorically denied having given any instructions to Shri Sanjiv-Bhatt,

the then DCI (Security) to attend the aforesaid meeting. He has further

stated that Shri Sanjiv Bhatt did not accompany him to CM's residence

in his car from DG's office, as he (DGP) did not visit office at that time.

He has also stated that in case Shri Raiger was available at Ahmedabad,

he would have given instructions to State Control Room to call him.

According to Shri Chakravarthi even otherwise, Shri O.P. Mathur, the

335

then IGP (Admn. & Sec.) was available and could have been called to

attend the meeting rather than asking Shri Sanjiv Bhatt, a junior officer

of SP level to attend the said meeting.

Shri Sanjiv Bhatt, the then DCI (Security) has named two AIOs

namely Shri K.D. Panth and Shri Shailesh Raval, who used to

accompany him to such meetings along with the files. After Shri

Sanjiv Bhatt's further statement was recorded at his own request on

25-03-2011, he insisted that Shri K.D Panth, who was accompanying

him and was waiting outside, should also be examined. He Stressed

that Shri Panth should be examined in his presence. However, Shri

Bhatt was informed that Shri K.D. Panth would be called on a date

convenient to the IO and examined. Accordingly, Shri Panth was

informed on 04-04-20 11, to attend SIT office on 05-04-2011, for his

examination.

Shri K.D. Panth in his examination has stated that he was on

casual leave on 27-02-2002. Further, he has denied that he followed

Shri Sanjiv Bhatt, the then DCI (Security) to CM's residence on 27-

02-2002 night. However, he has stated that Shri Sanjiv Bhatt had

called him to his residence on 24-03-2011 night and informed that

he was going to make a statement before the SIT that he (K.D. Panth)

had gone to attend a meeting at CM's residence on 27-02-2002 night,

and that he (Panth) had been called at State IB office and be ready

with the files for the said meeting. Shri Sanjiv Bhatt further informed

Shri Panth that he should accompany him to SIT office on 25-03-

2011, and make a statement on these lines.

During his examination, Shri Panth further stated that he has

contacted Shri Sanjiv Bhatt over his landline telephone no.27455117

from mobile no. 8140657775 (belonging to one of his friends) after he was

called for examination scheduled for 05-04-2011. Shri Sanjiv Bhatt called

him at his residence on 04-04-2011 at 2030 hrs. At his residence, Shri

Sanjiv Bhatt informed Shri Panth that he has made a statement to the

SIT that he (Bhatt) had accompanied DGP. Shri K. Chakravarthi in his

official car to CM'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 car along

with the files. Shri Sanjiv Bhatt asked Shri Panth to make a statement

accordingly.

Subsequently, Shri K.D. Panth lodged a complaint against Shri

Sanjiv Bhatt with the local police to the effect that Shri Sanjiv Bhatt

had influenced, detained, put severe pressure and compelled him to

sign an affidavit containing false/wrong and incorrect facts, in

336

pursuance of which a case no. 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 in this case and the matter is under investigation. In view

of this, no reliance can be placed upon the version of Shri Sanjiv

Bhatt.

This conduct of Shri Sanjiv Bhat, in arranging, prompting and

controlling the witness to corroborate his statement is highly

suspicious and undesirable. Shri Sanjiv Bhatt also contacted Shri

Shailesh Raval on 28-03-2011/29-03-2011, over mobile phone

no.9825688223 of one Shri NJ. Chauhan, a clerk in CM's Security

and informed him that he would be called by SIT for his examination.

Shri Sanjiv Bhatt also asked Shri Shailesh Raval that he had worked

with him in Security Branch for a long time and was aware that he

(Sanjiv Bhatt) used to attend meetings, to which Shri Raval reacted

by saying that he had accompanied him in Border Security Nodal

Committee meetings, which used to deal with the Border Security

only. Shri Raval also informed Shri Sanjiv Bhatt that he never worked

in the Communal Branch and was not aware of anything about it.

Shri Sanjiv Bhatt thereafter disconnected the phone. Shri Shailesh

Raval, PI later sent a complaint in writing to the Chairman, SIT that

he feared reprisal from Shri Sanjiv Bhatt as he had refused to support

the false claims of Shri Bhatt. This is yet another attempt on the part

of Shri Sanjiv Bhatt to tutor a witness to depose in a particular

manner so as to support the statement made by him, which further

makes his claim of having attended the meeting at CM's residence

on 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 getting employment in

Gujarat Police on the basis of false and forged certificate, has stated that

he used to drive the staff car allotted to Shri Sanjiv Bhatt, the then DCI

(Security) during February-March, 2002. However, he does not remember

the registration number of the staff car. Shri Yadav could not give the

name of Personal Security Officer of Shri Sanjiv Bhatt, the then DCI

(security). However, he has stated that he recollects that Shri Sanjiv

337

Bhatt, the then DCI (Security) had gone to CM's residence in a three star

car with either DGP or some ADGP from Police Bhavan and that 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 stated that Shri Sanjiv Bhatt, the then

DCI (Security) returned after about 25 minutes and he took him to Police

Bhavan, where he worked till midnight i.e. 0030 hrs and then drove him

back to his residence at Ahmedabad. Shri Yadav could not say as to

whether Shri Sanjiv Bhatt, the then DCI (Security) accompanied DGP or

some ADGP rank officer. He has denied knowledge, as to whether Shri

Sanjiv Bhatt went inside CM's office to attend the meeting or not, as he

was waiting outside. He has also stated that on 28-02-2002, Shri Sanjiv

Bhatt reached Police Bhavan at about 0900 hrs and worked in his office

and did not go out to attend any meeting at CM's house. On 28-02-2002,

he has stated that he started from Gandhinagar dropped Shri Sanjiv

Bhatt at his residence at about 1900 hrs. However, he could not recollect

the details of the various events of 1

, 2

& 3

March, 2002 due to

passage of time.

The version of Shri Tarachand B. Yadav is contradicted by Shri K.D.

Panth, who has denied to have followed Shri Sanjiv Bhatt in his staff car

driven by Shri Tarachand Yadav. Besides that he is an unreliable witness

due to his background. He has been 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 a briefing before making a statement to SIT. The call details of his

mobile phone clearly show that he was in touch with Shri Sanjiv Bhatt,

the then DCI (Security). Even when he was being interrogated in SIT office,

Shri Sanjiv Bhatt was repeatedly contacting him over his mobile phone to

which he did not respond. In addition, the version of Shri Tarachand

Yadav about the movements of Shri Sanjiv Bhatt on 28-02-2002, are

proved to be false in as much as Shri Sanjiv Bhatt did not come to

Gandhinagar at 0900 hrs, as the call detail records of his official mobile

phone show his location at Ahmedabad City till 1057 hrs. Shri Tarachand

Yadav further contradicts the version of Shri Sanjiv Bhatt, who claims to

have attended a meeting on 28-02-2002 at 1030 hrs, at CM's residence.

The overall impression left in the matter is that Shri Sanjiv Bhatt has

introduced him as a false witness with a view to corroborate his own false

version about having attended a meeting at CM's residence on 27-02-

2002 night, whereas in fact Shri Tarachand Yadav does not recollect

anything about the events of 27-02-2002 onwards. Moreover, he is a

motivated witness, who has got an axe to grind against the Govt. on

338

account of his dismissal from service. In view of this no reliance can be

placed upon his evidence.

During further investigation, PSOs of the then DGP Shri K.

Chakravarthi were examined. PSI Dilip Jivaram Ahir and Head constable

Dharampal Jagaram Yadav stated that they had never seen Shri Sanjiv

Bhatt sitting in the vehicle along with DGP.

Shri G.C. Raiger, the then Addl. DC, (Int.) has stated that Shri 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 a Staff Officer to the DGP, as Late V.S. Shinde, Dy.SP was

posted as Staff Officer to the DGP. Shri Raiger has further stated that Shri

Sanjiv Bhatt used to accompany him in the meetings called by the Chief

Minister sometime, but was normally made to wait outside with the

relevant files/information and did not join the meetings. Shri Raiger was

unable to recollect any meeting called by the Chief Minister, which Shri

Sanjiv Bhatt attended along with him. Shri Raiger has further stated that

on 28-02-2002, he did come to know about the meeting called by the Chief

Minister at his residence on 27-02-2002, but Shri Sanjiv Bhatt did not

inform him of having attended the said meeting and also about its agenda

or the matters discussed in the said meeting.

Shri R. B. Sreekumar formerly ADGP Intelligence, in his interview

given to the Star Hindi News Channel at 12.35 hrs on 22.04.2011 has

stated that Shri Sanjiv Bhatt, DCI (Security) had never informed him

about having attended a meeting at CM's residence on 27.02.2002. He

has further stated that at the time of filing an affidavit before Nanavati

Shah Inquiry Commission, he had asked all the officers of State IB to

provide him with the relevant

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information and documents in respect of Godhra riots but Shri Sanjiv

Bhatt did not give him any information about the said meting. According

to Shri Sreekumar, Shri Sanjiv Bhatt was handling security portfolio and

communal portfolio was being looked after by another officer. Shri

Sreekumar has also stated in the interview that it was a normal procedure

that if a junior officer had attended a meeting on behalf of senior, he was

required to submit a report to his superior and that Shri G.C. Raigar, the

339

then ADGP (Int) should be asked about it. As already stated above, Shri

Raigar has denied having received any information/report from Shri

Sanjiv Bhatt in this regard.

The call detail records of the Govt. mobile phone

no.9825049398, allotted to Shri Sanjiv Bhatt show that on 27-02-

2002, Shri Sanjiv Bhatt remained at Ahmedabad till about 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 was going towards Gandhinagar on or at 2040 hrs. Further, on 28-

02-2002, as per call details the location of Shri Bhatt was noticed at

Ahmedabad till 10:57:43 hrs and again at Ahmedabad at 2056 hrs.

The claim of Shri Sanjiv Bhatt that he had attended a meeting at

CM's residence on 28-02-2002, at 1030 hrs is, therefore, proved to

be false and incorrect. CM's residence is at Gandhinagar, more than

25 KMs from his residence at Memnagar, Ahmedabad, and it normally

takes 30 to 45 minutes to reach Gandhinagar. His further claim that

he had seen Late Ashok Bhatt and Shri I.K. Jadeja, the then Ministers

in the DGP's office at about 1100 hrs on 28-02-2002, is also belied

from the call detail records in as much as the location of the mobile

phone of Shri Sanjiv Bhatt was at Prerna Tower, Vastrapur-1,

Ahmedabad, which happened to be at a distance of 1.5 Kms

approximately from his residence and by any stretch of imagination

Shri Bhatt could not have reached Police Bhavan, Gandhinagar before

1130 hrs.

Shri Ashok Narayan, the then ACS (Home) has stated that a meeting

was held by the Chief Minister in the morning of 28-02-2002, which was

attended by acting Chief Secretary, DGP and Addl. DG (Int.) and the

matter relating to the calling of Army was also discussed, but no decision

was taken and it was decided to watch the situation. He has categorically

denied that Late Ashok Bhatt and Shri I.K. Jadeja, Ministers had attended

the said meeting. The claim of Shri Sanjiv Bhatt that he had attended the

said meeting at 1030 hrs at CM's residence is proved to be false from the

location of his mobile phone, which was at Prerna Tower, Vastrapur-I,

Ahmedabad City at 10:57:43 hrs. Moreover, his contention that the

aforesaid two Ministers were present in the said meeting is proved to be

false from the statement of Shri Ashok Narayan, the then ACS (Home),

who has categorically stated that they were not present in the said

meeting.

340

As regards the alleged utterances made by the Chief Minister in

the meeting called on 27-02-2002 night at his residence, 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 Chief Minister had said in the meeting

that “KOMI HULLADO MA TAME POLICE BARABARI KARO CHO, TAME

BE HINDU NE PAKDO TO TAME BE MUSALMANO NE PAN PARDO CHO,

HAVE EM NAHI CHALE. HINDUONO GUSSO UTTARWA DO.” (In

communal riots police takes action against Hindus and Muslims on

one to one basis. This will not do now-allow Hindus to give vent to

their anger.) Shri Chakravarthi as denied that he held any such talks

with Shri R.B. Sreekumar. Even otherwise, the version of Shri R.B.

Sreekumar becomes hearsay. However, on the other hand Shri Sanjiv

Bhatt, who insists that he was in the said meeting, has alleged that

the Chief Minister had said “that for too long the Gujarat Police had

been following the principle of balancing the actions against the

Hindus and Muslims while dealing with the communal riots in

Gujarat. This time the situation warranted that the Muslims be taught a

lesson to ensure that such incidents do not recur ever again. The Chief

Minister Shri Narendra Modi expressed the view that the emotions were

running very high amongst the Hindus and it was imperative that they be

allowed to vent out their anger”. Assuming for the time being that the

Chief Minister did say so, there is a material difference between the two

versions in as much as Shri Sanjiv Bhatt has tried to improve his version

by way of addition “that this time the situation warranted, that the

Muslims be taught a lesson to ensure that such incidents do not recur

ever again” Since there is no independent corroboration of the version of

either Shri R.B. Sreekumar or Shri Sanjiv Bhatt, no reliance can be placed

on either of them. It is relevant to mention here that the Ld. Amicus

Curiae has agreed with the findings of SIT that the aforesaid statement of

Shri R.B. Sreekumar was not admissible in evidence.

Shri Sanjiv Bhatt has not been able to give any satisfactory

explanation that when he was in possession of plethora of

information and was an eyewitness to some of the important events,

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then why did he not file an affidavit before Nanavati Commission and

also did not appear as a witness in response to the Govt. circular

before any legal authority. He does not explain as to why he did not

341

respond to a public notice issued by SIT on 11-04-2008. However, on

21/22—03-2011, when he made a statement, u/s 161 Cr.PC before

the SIT, it is not understood as to by whom and how the claimed

secrecy was waived. His silence for a period of more than nine years

without any proper explanation appears to be suspicious and gives

an impression that he is trying to manipulate the things to his

personal advantage to settle his service matters.

During the course of further investigation a complaint was received

from Shri Dharmesh P. Shukla, an accused in I CR No.67/2002 of

Meghaninagar P.S. (Gulberg Society Case), who is facing trial, in which

he contended that there was no justification to record the statement of

Shri Sanjiv Bhatt on account of the following reasons:-

(i) That Shri Sanjiv Bhatt, IPS is known to be a police officer of dubious

character facing several criminal cases of serious nature and

whenever he wants a favour from the Govt., he creates a situation

whereby the Govt. is compelled to help him.

(ii) Thai Shri Sanjiv Bhatt, who had not even whispered about any such

meeting in the past contemporaneously, surprisingly came out with

a new theory that he was a part of the meeting.

(iii) That this sudden stand taken by Shri Sanjiv Bhatt after nine years

of silence and his insistence that his statement be recorded only

after an offence is registered, is at the behest of some person's with

vested interests.

(iv) That it is known to almost everyone in Gujarat that Shri Sanjiv

Bhatt is famous for his pressure tactics to get illegal favours.

Since the allegations leveled by the complainant were serious, a

communication was sent to the Govt. to make available the details of all

complaints/pending inquiries/prosecutions/departmental proceedings

etc. against Shri Sanjiv Bhatt. A detailed reply has been received from

the Govt. of Gujarat, which shows that Shri Sanjiv Bhatt has faced a

number of departmental inquiries and he was granted three promotions

to the rank of Junior Administrative Grade, Selection Grade and DIG

Grade on one day i.e. 21-09-2007, after dropping of three departmental

inquiries pending against him vide orders dated 06-08-2005, 03-09-2005

& 24-07-2006. Shri Sanjiv Bhatt, who is eligible for the IGP grade has not

been promoted because of the departmental inquiries and criminal cases

pending against him. A charge-sheet served upon him on 29-12-2010,

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for irregularities in police recruitment under his Chairmanship as SP,

Banaskantha is still pending.

It has further come to light that while handling a law and order

situation during his posting as ASP Jamnagar in the year 1990, Shri

Sanjiv Bhatt committed police atrocities on peaceful and innocent

villagers belonging to a particular community at a place called Jam

Jodhpur. In the beatings by police, one person was killed. The victims

included a pregnant woman, two assistant engineers of Irrigation,

department and one Circle officer of Revenue Department. Shri Bhatt

applied provisions of draconian law TADA against the innocent persons

and arrested 140 individuals under this Act. Due to public pressure, the

Government got an inquiry conducted from a retired Judicial officer into

the incident and Shri Bhatt was found guilty of (a) misuse of TADA (b)

police atrocities and (c) unnecessary imposition of curfew for 70 hours

leading to hardship and harassment to the people.

It has also come to light that the criminal case relating to death of a

person due to police atrocities in the incident was investigated by State

CID (Crime) against Shri Sanjiv Bhatt and others. On completion of

investigation, the I0 sought prosecution sanction from the Government

u/s 197 Cr.PC. which was declined and therefore, a closure report was

filed in the competent court. However, the Court rejected the closure

report on 20.12.1995 and took cognizance. The State Government filed a

Criminal Revision Application in the Sessions Court, which was rejected.

A case u/s 302,323,506(1), 114 of IPC has now been committed to

Sessions Court, Jamnagar and is presently pending with the Fast Track

Court, Jam-khambhalia for framing of charges against Shri Sanjiv Bhatt

and others. Significantly, Gujarat High Court awarded a compensation of

Rs.1,50,000/- to the victim who had died due to police atrocities in the

above case.

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Another criminal complaint was filed against Shri Sanjiv Bhatt,

while he was posted as SP, Banaskantha District in 1996 by Shri

Sumersingh Rajpurohit, an Advoçate practicing at Pali, Rajasthan and a

criminal case was registered against Shri Sanjiv Bhatt & 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

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the investigation, a chargesheet was 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 of Spl. Judge, NDPS Act, Jodhpur, Rajasthan. The allegations in

brief are that the complainant Shri Surnersingh Rajpurohit, Advocate was

occupying a property as a tenant in Pali (Rajasthan), which was owned by

a lady, who happened to be a sister of Shri R.R. Jain, a sitting Judge of

Gujarat High Court. As per the said criminal complaint Shri Sanjiv Bhatt

and his subordinate police officers planted 1½ kg of Narcotic drug in one

room in a hotel at Palanpur, Gujarat, which was shown as occupied by

the said complainant though he was at Pali (Rajasthan) at that time. The

said Advocate was abducted at midnight, on the instructions of Shri

Sanjiv Bhatt by his subordinate police officers of Gujarat police, who went

from Palanpur, Gujarat to Pali (Rajasthan) to abduct him. The said

Advocate was brought to Palanpur, Gujarat and pressurized by Shri

Sanjiv Bhatt and his subordinate police officers to vacate the said

property by showing him arrested under NDPS offence. The said Advocate,

while in the custody of Gujarat Police and due to police torture, vacated

the property and physical possession of the property was handed over to

the sister of Shri R.R. Jain, Judge of Gujarat High Court. Shri Sanjiv

Bhatt and his subordinate police officers thereafter released Shri

Surnersingh Rajpurohit on 08-05-1996, by filing a report u/s 169 Cr.PC.

in which it was mentioned that Shri Sumersingh could not be identified

in the Test Identification Parade. Quashing Petitions were filed in this

matter by the accused persons in Rajasthan and Gujarat High Courts,

but the same had been dismissed. The matter is now pending before the

Hon'ble Supreme Court of India.

In the meantime, on the complaint of Shri Sidheshwar Puri,

Secretary, Bar Association, Pali (Rajasthan), National Human Rights

Commission, taking a very serious view of this false case under NDPS

Act, vide its order dated 15-09-2010 asked Govt. of Gujarat to pay a

sum of Rs. one lakh as monetary relief to Shri Sumersingh, Advocate

Pali.

Significantly, Gujarat Vigilance Commission recommended twice on

15-07-2002 and 19-10-2006 that Shri Sanjiv Bhatt should be placed

under suspension for his professional misconducts, but the Govt. of

Gujarat did not do so.

In view of the aforesaid position, it can be inferred that Shri

Sanjiv Bhatt is facing a lot of problems in service matters and has

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got an axe to grind against the Govt. of Gujarat and, therefore, his

evidence is ill motivated and can not be relied upon.

Government of Gujarat vide its letter dated 22-06-2011

forwarded a set of emails exchanged between Shri Sanjiv Bhatt, DIG,

Gujarat Police and certain individuals during April & May 2011. It

was mentioned in the above letter that during the course of an

inquiry instituted against Shri Sanjiv Bhatt, IPS by DG (Civil

Defence), Gujarat regarding misuse of official resources, some

revelations have been made having direct bearing on the cases being

monitored by SIT. The material forwarded by Govt. of Gujarat has

been scrutinised and the salient features of the same are summarized

as below:-

(1) That top Congress Leaders of Gujarat namely Shri Shaktisinh

Gohil, Leader of Opposition in Gujarat Legislative Assembly and

Shri Arjun Modhvadia, President of Gujarat Pradesh Congress

are in constant touch with Shri Sanjiv Bhatt, DIG. They are

providing him "Packages", certain materials and also legal

assistance Further, on 28-04-2011, Shri Sanjiv Bhatt

exchanged mails with Shri Shaktisinh Gohil and the former

gave points for arguments in Hon'ble Supreme Court matter,

allegations to be made against the members of SIT and to

establish that the burning of a coach of Sabarmati Express at

Godhra Railway Station was not a conspiracy. From the emails,

it appears that Shri Sanjiv Bhatt was holding personal meetings

with senior congress leaders as well. In one of the emails, he

even mentions that he was "under exploited" by the lawyer

representing Congress before Nanavati Commission of Inquiry.

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(2) That Shri Sanjiv Bhatt had been persuading various NGOs and

other interested groups to influence the Ld. Amicus Curiae and

the Hon'ble Supreme Court of India by using "Media Card" and

"Pressure Groups".

(3) Shri Sanjiv Bhatt had been exchanging emails with one Nasir

Chippa and in the email dated 11-05-2011 Shri Bhatt has stated

that he (Nasir Chippa), should try to mobilize support/pressure-

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groups in Delhi to influence Ld. Amicus Curiae Shri Raju

Ramchandran in a very subtle manner. In another email dated

18-05-2011, Shri Sanjiv Bhatt had requested Shri Nasir Chippa

to influence Home Minister Shri P. Chidambaram through

pressure groups in U.S. It is believed that Shri Nasir Chippa has

strong U.S. connections and his family stays there.

(4) That Shri Sanjiv Bhatt arranged an appeal from Shri M. Hasan

Jowher, who runs a so called NGO titled SPRAT (Society for

Promoting Rationality) to Amicus Curiae on 13-05-2011, to call

Shri Sanjiv Bhatt, IPS, Shri Rajnish Rai, IPS, Shri Satish Verma,

IPS, Shri Kuldeep Sharma, IPS and Shri Rahul Sharma, IPS (all

police officers of Gujarat) to tender their version of the Gujarat

story. It may be mentioned here that the draft for the said

appeal was sent by Shri Sanjiv Bhatt himself to Shri Jowher.

Further, a copy of this mail was circulated by Shri Sanjiv Bhatt

to Ms. Shabnam Hasmi, Ms. Teesta Setalwad, Shri Himanshu

Thakker, journalist, Shri Leo Saldana, Journalist, and Shri Nasir

Chippa to encourage the persons/organisation to write to

Amicus Curiae on the similar lines so as to pressurize him.

(5) In emails exchanged on June 1, 2011 between Shri Sanjiv Bhatt

and Shri M.H. Jowher, it was proposed that a PIL may be filed

through a lawyer named Shri K. Vakharia (a Sr. Advocate and

Chairman of Legal Cell of Congress Party in Gujarat) in the

Gujarat High Court for providing security to Shri Sanjiv Bhatt.

It was also proposed that another complaint may be filed with

the Commissioner of Police, Ahmedabad City against Shri

Narendra Modi & others for his alleged involvement in 2002

riots which would be taken to appropriate judicial forums in due

course.

(6) That Ms. Teesta Setalwad, her lawyer Shri Mihir Desai and

Journalist Shri Manoj Mitta of Times of India were in constant

touch with Shri Sanjiv Bhatt, IPS and were instrumental in

arranging/drafting of the affidavit for filing the same in Hon’ble

Supreme Court. Vide email dated 10-04-2011, Shri Bhatt

solicited "Co-ordinates" from Ms. Teesta Setalwad, who had also

arranged for a meeting with her lawyer Shri Mihir Desai at

Ellisbridge Gymkhana, Ahmedabad. Shri Sanjiv Bhatt sent the

first draft of his proposed affidavit to Shri Manoj Mitta on 13-

04-2011, after meeting Shri Mihir Desai, Advocate and invited

his suggestions. Shri Manoj Mitla advised Shri Sanjiv Bhatt to

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incorporate a few more paragraphs drafted by him which were

incorporated by Shri Sanjiv Bhatt in his final affidavit sent to

Hon’ble Supreme Court of India as suggested by Shri Mitta.

(7) That Shri Sanjiv Bhatt was instrumental in arranging an

affidavit of one Shri Shubhranshu Chaudhary, a journalist, to

corroborate his claim that he had gone to attend a meeting

called by the Chief Minister at his residence in the night of 27-

02-2002. Significantly, Shri Bhatt had sent his mobile phone

details of 27-02-2002 to Shri Shubhranshu Chaudhary and had

also suggested the probable timings of his meeting to Shri

Shubhranshu Chaudhary on 15-05-2011. Simultaneously, these

details were sent to Ms. Teesta Setalwad on 26-05-2011, for

drafting the document, presumably the affidavit to be filed by

Shri Shubhranshu Chaudhary. Shri Sanjiv Bhatt sent an email

to Shri Shubhranshu Chaudhary that the said affidavit could be

leaked out to the print media which would force the Amicus

Curiae and Hon’ble Supreme Court to take notice of the same.

Shri Sanjiv Bhatt also sent another email to Shri Shubhranshu

Chaudhary, in which he has stated that they should play the

“Media Trick” so that affidavit is taken seriously by Amicus

Curie and the Hon'ble Supreme Court

(8) That Shri Sanjiv Bhatt had been exchanging emails with one

Leo Saldana, a Narmada Bachao Andolan activist, with a view to

mobilize public opinion in their favour. On 01-05-2011, Shri

Sanjiv Bhatt had sent an email to the latter to the effect that

what they needed to do at this stage was to create a situation,

where it would be difficult for three judges Supreme Court

Bench to disregard the shortcomings of SIT under stewardship

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Mr. ‘Raghavan’ and that the Pressure groups and opinion

makers in Delhi could be of great help in forwarding the cause.

He has further stated in the mail that he was hopeful that

things would start turning around from the next hearing, if

proper pressure was maintained at National level.

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(9) That Shri Sanjiv Bhatt was trying to contact Shri K.S.

Subramanyam, a retired IPS officer, through Shri Nasir Chippa

to make an affidavit supporting his stand with a view to

convince the Amicus Curiae arid through him the Hon’ble

Supreme Court of India that Shri K Chakravarthi former DGP of

Gujarat, was a liar.

(10) That Shri Sanjiv Bhatt had been taking advice of Ms. Teesta

Setalwad in connection with his evidence before Nanavati

Commission of Inquiry. He had also been in touch with various

journalists, NGOs and had been forwarding his representations,

applications and other documents through email; whereas on

the other side he had been claiming privilege that being an

Intelligence Officer he was duty bound not to disclose anything

unless, he was legally compelled to do so.

(11) That Shri Sanjiv Bhatt had been maintaining a close contact

with Shri Rahul Sharma, DIG of Gujarat Police and had been

getting his mobile phone calls analysed with a view to ascertain

his own movements of 27-02-2002. This shows that Bhatt does

not recollect his movements on that day. He has also been

trying to ascertain the movements of Late Haren Pandya, the

then Minister of State for Revenue on 27-02-2002, with a view

to introduce him as a participant of the meeting of 27-02-2002

held at CMs residence, but could not do so, as Shri Rahul

Sharma had informed him after the analysis that there was

absolutely no question of Late Haren Pandya being at

Gandhinagar on 27-02-2002 night.

From the study of emails, it appears that certain vested

interests including Shri Sanjiv Bhatt, different NGOs and some

political leaders were trying to use Hon'ble Supreme Court/SIT as a

forum for settling their scores. This would also go to show that Shri

Sanjiv Bhatt had been colluding with the persons with vested

interests to see that some kind of charge-sheet is filed against Shri

Narendra Modi and others.

Observations made by Ld. Amicus Curiae:

“The other circumstances would also have to be taken into account.

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 him on 28-02-2002, would

348

have been decisive to prove that he had taken all steps for the

protection of the minorities, but this evidence is not there. Neither

CM nor his personal officials have stated what he did on 28-02-

2002. Neither the top police nor bureaucrats have spoken about any

decisive action by CM”.

This one of the circumstances which indicates that the Hon'ble

Chief Minister had not taken enough steps to ensure that riots in

Ahmedabad City were immediately controlled by his direct

intervention.

Result of further investigation:

During further investigation Shri Sanjay Bhavsar, OSD to CM has

stated that on 28-02-2002, the Chief Minister held a meeting in the

morning concerning business in the Assembly. Further, at 0830 hrs the

Chief Minister attended the Assembly session, in which there was an

obituary reference for those killed in Godhra incident. In the Assembly,

the Chief Minister announced the Judicial Inquiry into the incident under

the Commission of Inquiries Act instead of a High Level Inquiry

announced earlier on 27-02-2002, and the house was adjourned. The

Chief Minister held a meeting in the Assembly Secretariat with the acting

Chief Secretary, ACS (Home), DGP and Addl. DG (Int.) about the prevailing

situation in the State. In this meeting, the matter relating to the

calling of Army was also discussed, but no decision was taken and it

was decided to watch the situation. Shri Ashok Narayan has

categorically stated that Late Ashok Bhatt, the then Health Minister

and Shri I.K. Jadeja, the then Minister did not attend the said

meeting. Though, Shri K. Chakravarthi, the then DGP has stated that

ACS (Home) had conveyed to him about the Government's instructions to

the effect that the aforesaid two Ministers would

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sit in the two Control Rooms at Gandhinagar and Ahmedabad City to

assist the police, yet Shri Ashok Narayan has stated that he does not

recollect any such instructions.

Shri Ashok Narayan has further stated that the Army had

already been alerted on 27-02-2002, but inquiry conducted with the

local Army authorities had revealed that no force was available in

349

Gujarat and that the same had been deployed at the Borders. On 28-

02-2002, another law & order review meeting was called by the Chief

Minister at his residence around 1300 hrs or so, in which the

situation was discussed and deployment of forces was reviewed. In

this meeting, it was unanimously decided that Army should be called

to assist the civil administration to maintain law & order as the

situation in the State was getting out of control. In view of this, the

Chief Minister made an oral request to Shri L.K. Advani, the then

Union Home Minister over phone for deployment of Army in the

State. As decided in the meeting, a fax message was sent by Shri K.

Nityanandam, the then Secretary (Home) to the Secretary, Ministry

of Defence, Govt. of India at 1430 hrs seeking deployment of 10

columns of Army at Ahmedabad City and other affected places

immediately by airlifting them. The Chief Minister had earlier given

instructions for the safe escort of the Hajj Pilgrims returning to the

State to avoid any untoward incident. The fax message in this regard

was sent on 27-02-2002, to Addl. DG (Int.) with information to the

DGP by the Section Officer (Spl.), Home Department, Govt. of

Gujarat.

The chief Minister along with his cabinet colleagues and

officials of the Home Department reached Circuit House Annexe,

Shahibaug, Ahmedabad City around 1600 hrs or so and held a

meeting with the officers of the Home Department. Subsequently.

the Chief Minister held a press conference at Circuit House Annexe,

Shahibaug, Ahmedabad City between 1630 hrs and 1745 hrs. In this

press conference, CM announced that a decision had been taken by

the State Govt. to call the Army. A video CD of the press conference

has been produced by Shri Sanjay Bhavsar. At about 1800 hrs, the

Chief Minister's appeal to public for keeping peace and to maintain

law & order was recorded by the Dood-Darshan at Circuit House

Annexe, Shahibaug, Ahmedabad City and the same was televised at

1855 hrs before the regional news bulletin. The Chief Minister held

another law & order meeting at his residence at 2030 hrs 28-02-2002,

which was attended by the senior officers of the Home Department

and the police. The Chief Minister met the Union Defence Minister

Shri George Fernandes 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 security arrangements discussed.

This is confirmed from the records of the Protocol Department as

well as the Police Control Room messages.

350

According to Shri Sanjay Bhavsar, OSD to CM, the Chief

Minister met Shri George Fernandes, the then Union Defence

Minister on 01-03-2002 at about 0830 hrs at his residence in the

presence of Govt. Officials and Army Officers. As per the press release

issued by the Gujarat Information Bureau on 01-03-2002, Shri

Gordhan Zadafia, the then MoS (Home), Shri G. Subba Rao, the then

Chief Secretary, Shri Ashok Narayan, the then ACS (Home) and other

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 the said meeting. In this meeting, CM

requested for deployment of more Para Military Forces (PMFs) and

BSF, to which Shri George Fernandes agreed. CM also apprised the

Defence Minister about the allotment of 5 Coys of PMFs to the State

of Gujarat. The Chief Minister met the H.E. Governor of Gujarat at

0930 hrs at Rajbhavan and apprised him about the latest law & order

situation in Gujarat and also about the security arrangements and

bandobast made in the State. During 1000 hrs to 1300 hrs, CM had

attended to the Govt. work and gave directions to the Administrative

functionaries to take preventive actions to ensure that the disturbed

situation did not spread. The Chief Minister also met the Congress

delegation, informed them about the action taken by the Govt, and

advised them not to lodge any protest in this regards. The Chief

Minister also gave directions for the safety and security of the Haj

Pilgrims returning to Gujarat. CM also discussed the cash doles and

about the other help to be given to the riot victims. He also discussed

the packages for the relief camps started by various NGOs and gave

directions for other essential services to be provided to riot affected

victims. He also gave directions to the Hospitals in the State to make

available uninterrupted medical services to the affected persons and

other citizens. CM held a law & order review meeting at 1300 hrs.

Another law & order review meeting was held by CM at 1500 hrs at

his residence. At 1630 hrs, CM held a press conference at Circuit

House Annexe, Shahibaug Ahmedabad City. In this press conference,

CM informed the press that 13 columns of Army had been deployed

to assist the State Civil Administration and that shoot at sight orders

to maintain law & order situation had been issued. CM also briefed

the press about his meeting with the Union Defence Minister and also

about the deployment of Army. He also gave the

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details of various riot incidents and also about the deployment of

CPMFs in the Stare. CM also informed the press about the

requisitioning of the additional security forces from the

neighbouring States and appealed to the media to keep restraint. CM

held another law & order review meeting at 2030 hrs at his residence.

As per the request made by the Govt. of Gujarat, the Army

personnel were airlifted from the border and they started arriving at

Ahmedabad City in the night intervening 28-02-2002/01-03-2002.

Shri P.S Shah, the then Addl. Secretary (L&O) has stated that on

receipt of intimation from the Army authorities, a programme

indicating the arrival of the Army and their logistic requirements was

sent to the CsP and DMs, Ahmedabad City, Baroda City and Rajkot

City by him on 28-02-2002 itself. However, vide letter dated 01-03-

2002, a revised deployment scheme of Army with 3 columns for

Ahmedabad City and 2 columns each for Baroda City and Godhra and

1 column for Rajkot City was sent by him. Shri P.S. Shah has also

stated that Shri Gurdayal Singh, the then Addl. DG had submitted a

report to ACS (Home) on 02-03-2002, vide which he informed that 3

Battalions of Infantry Division reached Ahmedabad City on 01-03-

2002 and that 1 Battalion strength having 3 columns was deployea

in Bapunagar, Gomtipur, Raikhad and Amraiwadi at Ahmedabad City.

He further informed that the IInd battalion was deployed in

Dariyapur, Shah-Alam, Danilimda, Khadia, Kalupur, Shahpur and

Madhupura P.S areas. Shri Gurdayal Singh had also informed that 2

companies of the IIIrd battalion were deployed in Juhapura, Vejalpur

and Paldi areas and one company 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 with the approval of the ACS (Home) to

all CsP, DMs, SsP, IGs and Western Railway SP, Baroda, in which it

was emphasised that in view of the prevalent surcharged and tense

atmosphere, directions given by the Home Department time and

again for maintenance of public order and peace should be

implemented. In this message, several other instructions including

implementation of communal riots scheme, guidelines given by the

Govt. of India to promote communal harmony, effective actions

352

against unruly mobs and unlawful assembly and meetings of Peace

Committee etc. were also given.

Shri P.S. Shah, the then Addl. Secretary (L&O) has also stated

that on 01-03-2002, DGP felt that the resources available with him

were insufficient to deal with the law & order situation in the Gujarat

and as such with the approval of ACS (Home), 3 letters were sent by

Shri K. Nityanandam, the then Secretary (Home) to Chief Secretary,

Madhya Pradesh, Rajasthan and Maharasthra, through which these

states were requested to spare 10 companies each of their Armed

police to help the Gujarat police in handling the law & order

situation. A reply dated 01-03-2002 was received from Shri R.K. Nair,

Addl. Chief Secretary, Govt. of Rajasthan, in which he regretted to

spare any police force for duties in Gujarat for the time being.

However, 2 Coys of SRP were provided by the Govt. of Maharasthra

on 03-03-2002, and the same were deployed in Surat.

Shri G. Subba Rao, the then Chief Secretary has stated that he

had gone abroad and was recalled on 01-03-2002., He has further

stated that, he sent a wireless message to all CsP, DMs, Range IGs

and SsP to the effect that District Administration and police had to

act in a decisive, prompt and effective Manner to bring the situation

under control and that they should no hesitate to use whatever force

was necessary to bring the situation under control. The Chief

Secretary also emphasised in this message that when lives and

properties were threatened in communal situation, necessary, force

including firing should to be resorted to bring the situation under

control and if the situation deteriorated beyond a point besides

imposing curfew, “shoot at sight” orders also be issued to prevent

gathering of unlawful mobs at public places. The jurisdictional

officers were asked to acknowledge this communication and ensure

that no major incident took place under their jurisdiction.

Shri Sanjay Bhavsar, OSD to CM has stated that on 02-03-2002,

the Chief Minister held another meeting with Shri George Fernandes,

the then Union Defence Minister at 0830 hrs at his residence. During

0930 hrs to 1230 hrs, CM met the H.E. the Governor of Gujarat and

apprised him of the latest situation and the security arrangements

and bandobast made by the administration. CM further discussed the

packages for the relief camps started by the various NGOs. CM also

discussed the cash doles and the other help to be given to the riot.

victims. The Chief Minister also gave instructions that SSC/HSC

board examination be held as scheduled in peaceful atmosphere and

353

also to ensure the safely of students. Two Law & order review

meetings were held, by the Chief Minister at his residence at 1300

hrs and 1500 hrs respectively. CM held

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meeting of the officials of the Home Department at 1600 hrs at

Circuit House Annexe, Shahibaug, Ahmedabad City. CM also held a

press conference at 1630 hrs in Circuit House Annexe, Shahibaug,

Ahmedabad City, during which a detailed press release was issued by

the Govt. of Gujarat. CM held an all party meet at 1800 hrs, in which

the congree leaders did not participate. Another law & order review

meeting was held by the Chief Minister at his residence at 2030 hrs.

According to Shri P.S. Shah, the then Addl. Secretary (L&O)

some instances of attack on life and property in villages had been

reported on 02-03-2002. He has stated that in view of violence in

rural areas he sent a crash wireless message to all CsP, DMs and SsP

including SP, Western Railway, Baroda to the effect that sufficient

police patrolling be organised to cover villages, where a particular

community may be in smaller number and steps be taken to prevent

the entry of antisocial elements from out side the State or from large

cities into rural areas through nakabandi. The jurisdictional officers

were asked to convene peace committee meeting at Taluka level to

sensitise social leaders in rural areas for the need to keep peace.

They were also instructed to keep a telephonic contact with the

villagers through the concerned police station in rural areas to obtain

information and act quickly. Directions were also issued to these

officers to deploy the available forces suitably to meet the developing

situation and also to maintain sufficient mobility.

Shri Ashok Narayan, the then ACS (Home) has also stated that

he sent a wireless message on 02-03-2002, in which it was

emphasised upon the jurisdictional officers that apart from their

duties of maintenance of law & order. the process of healing, building

confidence amongst the people, diffusing tension and promoting

communal harmony was also required to be geared up immediately

by the District Administration and to achieve this object the

District/City Ekta Committee, Peace Committees and Mohalla

Committees should be activated and arrangements made to hold

354

these meetings. The jurisdictional officers were also asked to involve

the prominent members of all the communities, social leaders and

NGOs in this process and to report compliance by 04-03-2002.

As per Shri Sanjay Bhavsar, the Chief Minister left for

Ahmedabad airport on 03-03-2002 at 0900 hrs, and received the then

Union Home Minister Shri L.K. Advani at 1050 hrs. From airport the

Chief Minister accompanied the Union Home Minister at 1145 hrs to

some of the riot affected areas like Delhi Darwaja, Idgah area and

then went to Civil Hospital to see the riot victims. At 1215 hrs, CM

accompanied the Union Home Minister to Godhra by helicopter and

reached Godhra at 1300 hrs. At Godhra, the. Union Home Minister

visited Godhra Railway Station and inspected the scene of

occurrence. Later, he visited Civil Hospital, Godhra and met victims

of the train incident. Shri Advani left Godhra at 1345 hrs by

helicopter and reached Ahmedabad at 1430 hrs. Shri L.K. Advani held

a law & order review meeting with the officials of Home Department

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 of Home, Police and Revenue department. The

Union Home Minister asked the State Govt. to trace the culprits

responsible for Godhra incident and get them punished to take

measures to restore peace, to prevent violence and that, strict action

be taken against those who indulged in violence. Shri Advani

reviewed the measures taken by the State Govt. to restore law &

order in the State. In this meeting the Chief Minister gave directions

to organise joint peace marches. Thereafter, Shri Advani held a press

conference at Circuit House Annexe, Shahibaug, Ahmedabad City at

1700 hrs. Shri L.K Advani went to Gandhinagar accompanied by the

Chief Minister and met the then H.E. the Governor of Gujarat at 1830

hrs. At 1900 hrs Shri L.K. Advani met the Ministers of Gujarat Govt.

at CM's residence. Shri L.K. Advani thereafter, left for Hyderabad.

Later, the Chief Minister held a law & order review meeting at his

residence at about 2030 hrs.

Shri Sanjay Bhavsar, OSD to CM has further stated that on 04-

03-2002, the Chief Minister met the H.E. Governor of Gujarat at

latter's residence at 0930 hrs and apprised him of the latest law &

order situation and bandobast made in Ahmedabad City. Between

1030 hrs and 1300 hrs, CM held a law & order review meeting and

also held discussion with the officials of Home, Police and Legal

department for the appointment of a Judicial Inquiry Commission.

The chief Minister further held discussion about the Panchayat

355

elections and local bodies elections, which were due in March/April

2002. The Chief Minister also held discussions for ex-gratia payment

to the riot affected persons, NGO relief camps, compensation for

destruction of the properties during riots with the concerned

officers. The Chief Minister also discussed the issues relating to

Gram Panchayat and local bodies' elections and SSC/HSC exams.

Shri Advani came

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to Bhavnagar directly on 04-03-2002. In view of this, the Chief

Minister left for airport at 1300 hrs and then left for Bhavnagar by

air at 1330 hrs. The Chief Minister reached Bhavnagar at 1410 hrs

and met Shri L.K. Advani at 1420 hrs. At Bhavnagar, they had a

round of riot affected areas like Ranika, Ghogha Darwaja and S.T.

Station Road. They also visited Akwada Madressa, where 400-500

Muslim students were saved on account of a timely action by the

police, held law & order review meeting and met the representatives

of different organisations including minority delegations and

political leaders. They left for Rajkot at 1600 hrs and reached there

at 1630 hrs. At Rajkot, CM, the then Union Home Minister and others

visited Gondal Road, Lodhawad chawk. Parevadi Chawk and Lati plot

areas. It may be mentioned here that during the earlier riots in

Gujarat, the Kutch and Saurasthra region were peaceful, but in the

year 2002 some signs of riots were noticed in these areas, as a result

of which CM and other leaders visited these areas so that the riots

did not spread there. A law & order meeting was also held with the

police officers at Rajkot. At Bhavnagar and Rajkot, high level

meetings were held by CM and other leaders, in which CM directed

to launch combing operations to track down the antisocial elements

and recover lethal weapons and explosives. CM left Rajkot at 1800

hrs and reached his residence at Gandhinagar at 1915 hrs. At 2030

hrs, CM held a meeting with the Ministers of his Government. CM

has also instructed on 04-03-2002, that “SHANTI KOOCH” should be

held in villages and as such a wireless message 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

356

was emphasised that rumour mongers should be dealt with in an

exemplary manner and that city peace committees be activated to

assist in restoring peace. He also pointed out that the Hon'ble Chief

Minister had instructed that “Shanti-Kooch” be held in villages after

looking into the local situation. It was also mentioned in this

message that all class-I & II officers of Revenue and Panchayat should

be instructed to visit the villages at least twice a week and that the

Talatis and primary school teachers should be instructed to stay in

their respective places of duties and keep in touch with the village

leaders and sensitise them about the need to keep peace in their

villages.

Shri P.S. Shah, the then Addl. Secretary (L & O) has stated that

he has sent a crash wireless message on 04-03-2002, all CsP, DMs,

SsP to convene the peace committee meetings immediately, in which

the participation of individuals from every community be ensured

and also to hold peace marches in all the villages viewing the local

situation. The jurisdictional officers were also requested to involve

revenue/ development machinery as per the instructions contained

in the Home Department crash message dated 02-03-2002 and

document the same with the help of either videography or

photography and send the same to the Home Departmeint.

Shri P.S. Shah, the then Addl. Secretary (L&O) has also stated

that he sent another fax message dated 04-03-2002 to all CsP, DMs

and DDOs, in which he pointed out about the receipt of disturbing

reports of attempts to disturb the traditional peace and amity in the

villages. It was highlighted that there was failure of the society

represented by village panchayat and the village peace committees

in meeting out this responsibility. He also impressed upon the

aforesaid officers to take action u/s 50 of the Bombay Police Act,

which provides for imposition of punitive fines and also about the

temporary withdrawal of developmental grants and facilities, if any

village was bent upon indulging in senseless and sectarian violence

against its own members or neighboring villages.

On 04-03-2002, a letter dated 02-03-2002 was received from

Dy. Secretary, Information and Broadcasting department, Govt. of

Gujarat by Shri Ashok Narayan, in which it was pointed out by I & B

deptt. that in view of the prevailing situation in the Gujarat State, if

any cable network exhibits programme/news, which might incite

violence or might create law & order problems, strict action should

be taken immediately against them under the provisions or Cable

357

Televisions Networks Regulation Act 1995 & rules thereunder. On

receipt of the same, a DO letter was sent by Shri Ashok Narayan on

05-03-2002, to Shri K. Chakravarthi, the then DGP, to ensure strict

and effective implementation of the revised guidelines issued by the

Govt. of India for promotion of communal harmony. DGP was further

advised to take action against those elements, who had

demolished/damaged certain places of worship and also against

those who had converted some of the religious places of worship of a

religious denomination into places of worship of different religious

denomination under the provisions of Places of Worship (Special

Provision) Act 1991. Besides that DGP was advised that reporters,

editors, printers, publishers and owners of the media 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 material promoting or

attempting to promote disharmony or feeling of enmity, hatred or ill

will between different religious communities/groups. DGP was also

advised that in order to maintain sanctity of religious places and

prevent their misuse for criminal, subversive or communal activities

the provisions 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 on 05-03-2002, CM

held a law & order review meeting at his residence. The Chief

Minister also addressed a High Level meeting attended by Chief

Secretary, Revenue Secretary, Health Secretary, Secretary (R&B) and

Health Commissioner and gave specific instructions to them to visit

18 relief camps in different areas. CM also instructed the Collector

& District Magistrate, Ahmedabad to make arrangements for the

distribution of food and essential commodities with the help of

commercial organizations. At 1430 hrs, CM left for Ahmedabad and

held a meeting with prominent citizens at Gujarat Chamber of

Commerce, Ahmedabad. The Chief Minister made an appeal to the

trade and industry, heads of religious organisations and intellectuals

to help revive and restore economic activities, which evoked

358

encouraging response from all quarters. CM categorically said that

the Govt. would not compromise with law breaking antisocial

elements and that, the Govt. was committed to re-establish the sense

of mutual trust and confidence. The Chief Minister out rightly

condemned the law 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 Revadi Bazar,

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 Health Minister, Shri Kaushikbhai Patel,

the then Energy Minister, Smt. Anandiben Patel, the then Education

Minister, Late Haren Pandya, the then MoS Revenue Minister, Shri

Bharatbhai Pandya, the then sitting MLA, Smt. Mayaben Kodnani,

the then MLA and Shri P.C. Pande, the then CP. Ahmedabad City.

Shri Ashok Narayan, the then ACS (Home) has further stated

that he sent a confidential wireless message on 05-03-2002, to all

CsP, Range IGPs, DMs and all SsP that the surcharged communal

atmosphere in parts of Gujarat was returning to normal and that

measures suggested by the Govt. of India in the revised guidelines

for communal harmony should be implemented with a view to gear

up the process of restoration of normalcy and promoting communal

harmony.

On 05-03-2002, Shri Ashok Narayan has also stated that he sent

a DO letter to Shri K. Chakravarthi, the then DGP that the law &

order situation was being brought under control and the State was

gradually returning to normal with the curfew being lifted in a phased

manner from the places where the situation was improving, but it

was due to the presence of Army and CPMFs, which was only a

temporary measure and reinforcement to the State Police resources

should be done. It was further pointed out that the anti-social

elements night be awaiting the withdrawal of these forces and might

attempt to create disturbances again and that the possibility of

sporadic incidents, revenge or an organised backlash from either

community or attacks on the law enforcing agencies could not be

ruled out. It was also emphasized upon the DGP that the respite

provided by the temporary assistance of Army and CPMEs should be

used to strengthen, their own control over the law & order situation

to meet these possible Challenges. DGP was also asked to chalk out

a suitable strategy in this regard. On 05-03-2002 itself, a

representation dated 04-03-2002 was received from Kadi Muslim

Samaj, Kadi, Mehsana to provide protection to them his

359

representation was forwarded by him to the DGP vide his DO letter

dated 05-03-2002 to provide all necessary protection to the Muslim

samaj 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, give protection to the Haj Yatris and to ensure

that they reach safely to their residences. On the same day, he sent

another message to all the aforesaid officials to review the local

position and made adequate bandobast at various mosques for

thwarting any act of provocation and also for the protection of the

mosques on 08-03-2002, when a large number of Muslim were likely

to assemble in the mosque for Namaz.

On 06-03-2002, a representation was received by Shri Ashok

Narayan, the then ACS (Home) from the residents of Jawahar Chawk,

Raikhad, Ahmedabad City for giving adequate police protection to

them, which was immediately forwarded by him to Shri K.

Chakravarthi, the then DGP for further necessary action. On 06-03-

2002 itself, a DO letter was received by ACS

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(Home) from Shri Arvind Shukla, PS to the Governor of Gujarat

forwarding there with a representation from Daudi Vohra Community

of Garbada taluka, Dahod Distt. with a request to continue the BSF

protection. This representation from Daudi Vohra Community was

forwarded by him to DGP Shri K. Chakravarthi immediately that the

H.E. Governor of Gujarat had desired that in Garbada, Gangardi and

Jesawada and surrounding rural area of Garbada taluka in Distt.

Dahod, the BSF baridobast should be continued, and an intensive

police patrolling should be done. On 06-03-2002, another

representation was also received by ACS (Home) from Ahmedabad-

Mehsana High Way Hotel Association requesting financial assistance

for the damage done to the hotels during the riots in Gujarat and the

same was forwarded by him to Shri C.K Koshi, Principal Secretary,

Revenue Department, Gandhinagar for further necessary action.

On 06-03-2002, a DO letter was sent by Shri Ashok Narayan,

the then ACS (Home) to DCP stating that as the violence in the State

360

continues, it was necessary that the police should strictly adhere to

the principles of rule of law, take effective action to prevent further

violence and deal ruthlessly with all the violators. He also suggested

that effective but controlled use of force be resorted to deal firmly

with violators, to arrest all ring leaders and people whose names

figured in the FIR, to conduct combing operations to recover

arms/explosives and other material used or likely to be used in the

present situation and also to recover all stolen/looted property. DGP

was also requested to initiate action immediately so that supremacy

of law could be established.

On 06-03-2002, some members of the press had mentioned to

Shri Ashok Narayan that though the names of some of the VHP and

Bajrang Dal leaders figured in the FIR No. 98/2002 of Naroda P.S.

against Shri Kishan Korani & others and in Gulberg case FIR against

Shri Dipak Patel yet they had not been arrested. This information

was immediately passed on by ACS (Home) to the DGP for suitable

action in the matter.

Shri P.S. Shah, the then Addl. Secretary (L&O) has further

stated that on 07-03-2002, he sent another wireless message to CP,

Range IGPs, DMs and all SsP to exercise strict vigil at temples on

Maha-Shivratri festival to be celebrated on 12-03-2002, in view of the

highly surcharged and tense situation prevailing on the communal

front. It was highlighted that antisocial and hardcore communal

minded elements bent upon to jeopardise communal harmony should

be dealt with firmly and promptly. It was also emphasised that peace

and communal harmony must be maintained at all costs. Further

instructions were given by him to all the jurisdictional officers to

provide adequate security to Shiva temples to avoid any untoward

incident. These instructions were given in the light of the fact that

symbolic pooja at Ayodhya was scheduled to be held on 15-03-2002.

Shri Ashok Narayan has further stated that on 07-03-2002, he

sent a DO letter to Shri K. Chakravarthi, the then DGP, in which he

referred to the earlier discussions held with him during which it was

felt that there was a need to overhaul the intelligence set up and also

to increase the lump sum amounts available to the field officers and

requested him to send a proposal in this regard. He also pointed out

that during the discussions with the Chief Minister, he had pointed

out that there was a necessity to do very effective combing and to

identify areas to prevert further incidents of terrorism and violence.

361

On 07-03-2002, a note was sent to Shri Ashok Narayan by the

Chief Secretary that tough law & order situation was fast returning

normal, it was necessary to intensify the efforts by taking effective

steps regarding rounding up of all known anti-social elements and

also to conduct combing operations for detection and seizure of

illegal arms and ammunition. These instructions were

communicated to DGP on 07-03-2002 itself by Shri Ashok Narayan

through a DO letter requesting him to take effective steps on these

lines. On 07-03-2002 itself, a representation was received from Shri

Farook Sheikh, MLA, Kalupur, Ahmedabad City intimating that he

and his family had been receiving telephonic threats on their life for

a long time and armed police protection be provided to him. This

representation of Shri Farook Sheikh MLA, Kalupur was forwarded to

DGP on 07-03-2002, by Shri Ashok Narayan with a copy to CP,

Ahmedabad City.

Shri P.S. Shah, the then Addl. Secretary (L&O) stated that he

sent a wireless message on 13-03-2002, to the jurisdictional officers

to monitor the situation/developments closely for maintenance of

law & order in their respective jurisdiction in the light of Hon'ble

Supreme Court's order in Writ Petition filed by Mohd. Aslam Vs.

Union of India to maintain status-quo and that Ram-Sevaks should

not be allowed to perform symbolic pooja.

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Shri P.S. Shah, the then Addl, Secretary (L&O) has also stated

that on 14-03-2002, a wireless message was sent by him to all CsP,

Range IGPs, DMs and all SsP that in the light of order passed by the

Hon'ble Supreme Court of India in a Writ Petition filed by Aslam

Bhura Vs. Union of India on 13-03-2002, either symbolic or actual

Bhumi-Pooja should not be permitted to take place. Further, as a

statement had been made by Secretary, VHP to the effect that

demonstrations would be held from 14-03-2002 onwards all over the

country, it was likely to lead to the communal clashes. All the

aforesaid jurisdictional officers were specifically directed to

strengthen security arrangements at religious places, deal firmly

with anti-social, disgruntled and hardcore communal minded

element, implement prohibitory orders, strictly set up pickets at all

362

sensitive points, to pick up rumour mongers, to intensity foot and

mobile patrolling, to maintain communal harmony and to keep close

watch over the situation.

On 14-03-2002, Shri Ashok Narayan received information about

the protection sought by some Muslim families residing in Baroda

City. These families had asked for RAF deployment between 14-03-

2002 to 16-03-2002 for their protection, in view of the VHP

programme fixed for 15-03-2002. This information was passed on by

him to the DGP, Collector & CP, Baroda City through separate DO

letters dated 14-03-2002 with a request to look into the security of

these specific areas.

On 15-03-2002, Shri Ashok Narayan had written DO letter to

Shri K. Chakrayarthi, the then DGP in the context of several

discussions with the Chief Secretary regarding the need to activate

the intelligence machinery in the prevailing situation. It was further

mentioned that CM had already given several suggestions to

facilitate unearthing of antisocial and antinational links. He also,

mentioned that in the prevailing situation of general tension, it was

even more necessary to take concrete steps in order to prevent

worsening of the situation. Shri Ashok Narayan had suggested to DCP

to constitute a task force involving Shri R.C. Mehta, Shri R.B.

Sreekumar and Shri G.C. Raiger to work out a suitable plan within

about 3 days.

Shri P.S. Shah, the then Addl. Secretary (L&O) has further

stated that on 21-03-2002, he sent a crash wireless to all CsP, Range

IGPs, DMs and all SsP, in which he had emphasised the need to keep

a close watch over communal situation 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 different

communities of the society. In the light of highly surcharged and

tense atmosphere prevailing in the State, it was further emphasised

upon the jurisdictional officers that HSC/SSC examination were also

being held in all over the state (except 5 cities) and therefore, special

attention should be paid to the sensitive areas and places, which had

recently witnesses communal violence. All the jurisdictional officers

were also advised to make foolproof bandobast on the eve of

Mohharram i.e. Qattal ki rat and during Tazia processions.

Instructions were also given to all the aforesaid officers to remain

present at their headquarters and closely supervise all the

363

arrangements for maintenance of public order and communal

harmony under their jurisdiction.

Shri Ashok Narayan, the then ACS (Home), Shri P.S. Shah, the

then Addl. Secretary (L&O) and Shri K. Chakravarthi, the then DGP

have stated that in addition to the aforesaid references, a number of

complaints/representations were received

personally/telephonically, for which immediate, necessary action

was taken by them over telephone, for which no records are available.

According to them, after 72 hours, the situation was gradually

coming under control though even subsequently stray incidents of

violence were reported from different parts of the State for a few

days. However, the Panchayat elections were held in March-April,

2002 peacefully, and the Haj-Pilgrims who had returned from

pilgrimage were safely escorted to their respective places without

any untoward incident. The fact that the festivals like Maha-

Shivratri, Holi, Good Friday and the religious function of Mohharram,

as well as SSCI-/HSC examination passed off peacefully in March,

2002 would go to show that the State was returning to normalcy fast.

Keeping in view the aforesaid facts, it is established that the

Godhra train burning incident took place on 27-02-2002 between

07.47 and 08.20 hrs. There is evidence available on record to show

that immediately the State machinery, was put on the high alert and

this was communicated to all District authorities and Commissioners

of Police. The first alert message of 27-02-2002 from the Home

Department covered the need to take precautionary measures

including adequate police bandobast and preventive measures

including issuance of prohibitory

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orders depending upon the local situation. It was instructed that

antisocial and hardcore communal elements should be dealt with

family. It was also impressed upon the district administration that

when the dead bodies arrive in the respective native places, there

was a likelihood of heightened communal tension and hence

bandobast should be arranged, especially for the funeral procession.

All Commissioners of Police DMs and SsP should remain in HQ and

closely monitor the situation.

364

This alert message of 27-02-2002 was followed by another

message from Home Department on 28-02-2002, to all concerned to

round-up anti-social and known communal elements under the

preventive laws. It was further instructed that mobile patrolling

should be intensified and adequate protection should also be

provided at places of worship and that effective action should be

taken to disperse unruly mob, unlawful assemblies, using whatever

force necessary. It was also made clear that anti-social elements

indulging in violence and bent upon jeopardizing communal harmony

must be controlled firmly. Another message dated 28-02-2002,

impressed upon all concerned officers to maintain adequate

bandobast for 01-03-2002, being Friday and the day of Namaz for the

Muslims. Adequate bandobast was directed to be provided to all

sensitive areas and curfew was ordered to be strictly enforced. On

28-02-2002, another message was sent to the Addl. DG (Int.) to

maintain adequate bandobast for the security of returning Haj

Pilgrims at their point of entry. It appears that realising the

seriousness of the situation, the Chief Minister took a decision on

28-02-2002, to call the Army to assist the civil administration in

maintenance of law & order in the State. Accordingly, the Chief

Minister spoke to the Union Home Minister on 28-02-2002 around

1400 hrs and orally requested him to depute the Army to control the

law & order situation. This was followed by a fax message sent by

Shri K. Nityanandam, the then Secretary (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

deployed on the borders, as a result of which the Army had to be

airlifted to Ahmedabad and could be effectively deployed from 01-03-

2002 onwards only.

It is established that on 28-02-2002, events in the aftermath of

the gruesome Godhra episode of 27-02-2002 unfolded and violent

incidents were reported from many parts of the State. A high level

review of the situation at the Chief 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, the Chief

Minister had made an oral request to the Union Home Minister for

Army deployment. At about the same time, an official request was

sent in writing by Shri K. Nityanandam, the then Secretary (Home)

to the Secretary, Ministry of Defence to make the Army available for

internal security duties. The Chief Minister publicly announced at

1600 hrs. in a press conference the decision of the State Govt. to call

365

the Army. Efforts were also made to requisition available Army

personnel in the cantonment area of Ahmedabad, but no force was

available. It was understood that withdrawing the Army at such

critical juncture when war like situation existed with the neighbour

needed a high level decision at the Centre. This decision to withdraw

the Army and deploy in Gujarat has immediately taken at highest

level in the Centre at the request of Gujarat Govt.

Army personnel were airlifted from forward positions and they

started arriving by the midnight of 28-02-2002. It may be mentioned

here that 40 aircrafts were used to airlift Army personnel to

Ahmedabad. The first plane, landed at Ahmedabad on 28-02-2002

mid night and the last one on 01-03-2002 at 2300 hrs. The

deployment of the Army also required additional logistic support by

the civil administration in the form of Executive Magistrates,

vehicles, Liaison officer, mobile phones, guides and maps and same

were promptly made available to them. The deployment of Army

commenced by 1100 hrs after a high level meeting with the Chief

Minister and the Union Defence Minister along with senior officials

of the Army and the state administration. The Army was deployed in

the 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 deployed on 01-03-2002. Later on, 2 columns of the

Army were moved to Vadodara on 01-03-2002 at 1830 hrs, 2 columns

despatched to Godhra on 02-03-2002, and they reached Godhra at

0130 hrs, 2 columns moved to Rajkot on 02-03-2002 at 1100 hrs. It

may be mentioned here that while the 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 from

Bhavnagar and Surat, Army columns were moved to Surat on 03-03-

2002 at 1100 hrs and to Bhavnagar on 03-03-2002 at 2235 hrs. In all

26 Army columns had been deployed at the peak of riots in the State.

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In addition, the Govt. of India had approved the deployment of

CPMFs and therefore, 6 Coys of CISF, 11 Coys of BSF, 5 Coys of

Border Wing Home-guards and 4 Coys of RAF were deployed in the

366

State by 03-03-2002. The State Govt. had also made a request on 28-

02-2002, to the neighbouring States of Maharasthra, Rajasthan and

Madhya Pradesh to spare the services of their Armed Reserve Police

companies. However, only Maharashtra responded by sending 2 Coys

of SRP, whereas the Govt. of Rajasthan and Madhya Pradesh

expressed their inability to spare any police force due to the internal

commitments. It may thus be seen that there was no delay,

whatsoever in requisitioning the Army and its deployment by the

State as and when they realised. on 28-02-2002 afternoon that the

situation was going beyond control. Significantly, Union Defence

Minister arrived at Ahmedabad on 28.02.2002 night to ensure that

Army formations take their positions without any delay.

Shri G. Subha Rao, the then Chief Secretary, who had gone

aboard, was recalled and he arrived on 01-03-2002. The Chief

Secretary had issued a clear cut message to all the jurisdictional

officers to take effective action including implementation of

Communal Riot Scheme, to act in a decisive, prompt and effective

manner to control the situation and not to hesitate to use whatever

force was necessary to bring the situation under control, if any life

and property were threatened. It was impressed by him that firing be

resorted to as per situation and if the situation deteriorates beyond

a point, besides imposing curfew even shoot at sight orders should

be given to control the unruly mobs. This wireless message from the

Chief Secretary gives clear cut indication and mind of the State that

the riots had to be controlled at any cost.

Frantic messages were sent by the Home Department on 01-03-

2002 to 06-03-2002 and specific instructions were given to the effect

that the riots had to be controlled and all steps should be taken to

restore normalcy and peace in the State. In addition, 14 messages

were sent by the Home Department, which included measures, to be

taken for ensuing festivals, arrival of Hajj pilgrims and their security,

Jumma Namaz, Ram-Navami, Moharrum, Holi-Dhuleti and Good

Friday. These messages also included the necessary precautions to

be taken in the issues relating to symbolic or actual bhumi pooja

proposed to be performed by the Ramsevaks on 15-03-2002, about

which the specific orders had been issued by the Hon'ble Supreme

Court of India to maintain status-quo.

Further investigation has also disclosed that the Chief

Secretary and Addl. Chief Secretary (Home) had arranged for two

video conferences with the CP, DMs, SP and other concerned officers

367

on 04-03-2002 and 11-03-2002, in which important 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 and Peace

Marches

iv. Curbing violence and protecting places of worship.

v. Preventive measures and other actions against criminals

including, detention

vi. Incidents of 15-03-2002 at Ayodhya and Ram-mandir issue

vii. Bandobast for SSC/HSC examination

viii. Attention to various alert messages issued about law & order,

ensuing festivals and Haj pilgrims

It has also come to light during further investigation that from

27-02-2002 onwards, high level meetings with the Chief Minister and

senior officers were held in the morning as well as in the evening.

The Chief Secretary and the ACS (Home) also held atleast one

meeting per day with DGP and other senior police officers, in which

the current situation during the last 24 hours was reviewed including

the bandobast and deployment of forces. The Chief Secretary also

held separate high level meetings with Army officers on 07-03-2002,

18-03-2002 & 23-03-2002.

Further investigation has established that the State Govt. was

reasonably vigilant vis-à-vis the developments on the law & order

front and immediately responded by bringing to the notice of all

District officials, the need to maintain adequate bandobast in view

of the Godhra incident on 27-02-2002. In addition, written

communications were sent on day to day basis with specific

instructions to control the law & order situation with a view to bring

normalcy, communal peace and harmony in the State at all costs.

The State authorities also impressed upon jurisdictional officers that

violators of law should be effectively dealt with, no laxity shown and

maximum force used to suppress and contain the violence. The

allegation about the inaction on the part of State Govt. as well as

police department is, therefore, not established.

368

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Observations made by Ld. Amicus Curiae:

It is difficult to believe that when CM came back after the Godhra

trip, no Minister was present at his residence, Hence, it may not be

totally unbelievable that Shri Haren Pandya was present. Shri

Haren Pandya is unfortunately dead, but the statements made by

Late Shri Haren Pandya to Justice P.B. Sawant (Retd.) and Justice

H. Suresh (Ret.) can be used, even if his statement is not been

formally reproduced in the writing by the Citizen's Tribunal.

It has also been brought out that an enquiry was made from CM's

office as to the identity of the Minister who had deposed before the

Citizen's Tribunal and that the State Intelligence Bureau had

verified the identity as that of Shri Haren Pandya. This also gives

some corroboration to the fact that CM's office was uncomfortable

with the disclosure made by an unidentified Minister to the Citizen's

Tribunal.

Result of further investigation:

Further investigation revealed that the Chief Minister left

Godhra at about 1945 hrs on 27-02-2002 by road and reached

Vadodara airport at about 2130 hrs. Shri Narendra Modi left for

Ahmedabad by Govt aircraft around 2130 hrs. From Ahmedabad

airport CM went to Gandhinagar by road and reached his official

residence at about 2230 hrs. On his return, he called for a law & order

meeting at about 2300 hrs, which was attended by the top officials

of administration, Home and Police department. Shri K.

Chakravarthi, the then DGP said that on 27-02-2002, late in the

evening while he was in Door-Darshan studio, Ahmedabad City, he

received a message from State Police Control Room that CM had

called for a meeting at his residence at Gandhinagar at about 2230

hrs. He has further stated that he had reached at CM's residence

alone a little earlier and waited there as CM had not arrived at that

time. Subsequently, Smt. Swarna Kanta Varma, the then acting Chief

Secretary Shri Ashok Narayan, the then ACS (Home), Shri P.C. Pande,

the then CP, Ahmedabad City and Shri K. Nityanandam, the then

Secretary (Home) also arrived there. According to Shri Chakravarthi,

369

the meeting was held around 2300 hrs or could be a little earlier and

lasted for about 20-30 minutes. All the participants of the said

meeting have categorically stated that none of the

Minister/politician attended the said meeting. Mr. Justice

P.B.Sawant, Retired Judge of Hon'ble Supreme Court of India and Mr.

Justice Hosbet Suresh, Retired Judge of Bombay High Court,

members of the Concerned Citizens Tribunal - Gujarat 2002, (that

was conceived in response to the Godhra carnage on 27-02-2002)

have stated that one Minister of the Gujarat Govt. namely Late Haren

Pandya, appeared and deposed before the Tribunal on 13-05-2002, on

condition of anonymity, that he had attended a meeting on 27-02-

2002 night at the residence of Shri Narendra Modi, CM, in which the

latter had made it clear that there would be a backlash from the

Hindus on the next day and that the police should not come in their

way. According to Justice Sawant, Late Haren Pandya revealed that

Shri Modi also instructed the police officers and Civil servants that

a Hindu reaction was expected and the same must not be curtailed

or controlled. However, his deposition had not been recorded

anywhere by the Tribunal.

Further investigation revealed that an inquiry into the Godhra

incident as well the riots that followed the Godhra carnage was conducted

by Concerned Citizen Tribunal sometime in April-May, 2002 and their

report was published on 21-11-2002, in the form of a book titled “Crime

Against Humanity”, which bears the signatures of 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 the

chief minister called a meeting of senior police and other

officers on that very night of February 27, 2002. At this

meeting specific instructions were given by him in the

presence of state home minister on how the police should

deal with the situation on the bandh day. We were informed

that instruction were given in this meeting by the Chief

minister specifically not to take action against any Hindu

reaction to Godhra”.

This report would go to show that, the State Home Minister i.e. Shri

Gordhan Zadafia, the then MoS (Home) was present in the said meeting,

whereas there is conclusive evidence to establish that Shri Gordhan

Zadafia, had stayed at Godhra on 27-02-2002 and returned on 28

370

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-02-2002 morning. Nowhere, the name of Late Haren Pandya, who was

holding the portfolio of Minister of State for Revenue had been mentioned

in the said report. On the contrary, Late Haren Pandya had been severely

criticized by the Concerned Citizen Tribunal in its report. Some of the

extracts from the said report are reproduced below:-

“Naroda Patiya and Naroda Gaon have a long history of VHP

provocation. Police sources revealed to expert witnesses who

deposed before the Tribunal, that in 1999 a dargah was

broken down and an idol installed in its place. At the time,

the local police repaired the dargah and arrested 10-15

persons, including Dr. Jaideep Patel, Maya Kodnani and

Amrish Pandey. Pressure was mounted on the police by the

then home minister, Haren Pandya, but the police stood their

ground and the law-breakers were forced to back down”

(page-36. of Vol.1)

“On the night of February 27-28, the elephants that are kept

inside the temple premises were made to drink liquor. The

sounds and trumpeting that followed caused terror in the

entire locality. During the last election, former minister

Haren Pandya, who won from the Paldi area, had openly

proclaimed during his campaign, Baandyo nahin bachwo

joyiye. (Not a single baandyo, abusive term for a

Muslim/circumcised person must be spared..)” (page-44 of

Vol.1)

“Three eyewitnesses, who deposed before the Tribunal, saw

former revenue-minister Haren Pandya opposite the VS

Hospital, setting fire to the Apna Bazaar Medical. Aa Miyaone

aag lagadiye. (Let us burn these Muslims.), he was shouting

after he had burnt it down himself. The Ellis Bridge police

station is close by but they did nothing. The fire brigade was

called and they tried desperately to put out the fire. But

Pandya, leading the mob, prevented them. An FIR has been

launched against him and BJP MLA Ashok Bhatt. Just

outside the Ellis Bridge police station, Haren Pandya was

overheard telling the PI, even as Hotel Ellis was aflame, Aah

371

samaj kayi nathi kartoo. (This community does nothing.) The

PI concerned had a special room permanently booked for him

at Hotel Ellis”. (page-44 of Vol.1)

“There were attacks on 6 housing societies in Paldi, where

about 1,000 Muslims live. In all, there are about 5-6,000

Hindus living in this area. Kazmi Apartments, Elite, Delite,

Corner 2, Tarana Apartments and Bungalows No. 16 and 24

in Paldi, occupied by the owners of Motimahal, were

completely burnt. Eyewitesses testified 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

desecration of the tomb of Wali Gujarati, a renowned poet

remembered as the founder of Urdu poetry. On March 1. His

tomb, located not more than 10 metres from the office of

Ahmedabad's commissioner of police (also the police

headquarters) was demolished and a saffron flag hoisted on

the site. It is believed that the shrine was torn down by

marauding mobs under the directions of Gujarat's revenue

minister, Shri Haren Pandya. This flag was removed on the

night of March 2. On March 8, a tarred road was constructed

at the site, leaving no trace whatsoever of the tomb that had

stood there for nearly three centuries. It is shocking that a

calious government and an unprincipled administration

participated in the utter obliteration of this cultural

monument and allowed a road to be constructed over it”.

(page - 48 of Vol. 2)

“On the night of March 3, a 400-year-old mosque owned by

the Wakf Board, and located near Anjali Cinema in

Ahmedabad, was broken down in the presence of state

ministers Shri Haren Pandya and Shri Amit Shah. As in many

other cases, a Hulladiya Hanuman idol was installed there,

followed by darshans and artis”. (page-49 of Vol.2)

"The Tribunal observes that in Gujarat, many cabinet

ministers are simultaneously prominent leaders of the VHP.

The home minister, Shri Gordhan Zadaphiya, is one of them.

So, too, is the former revenue minister Shri Haren Pandya, a

senior VHP functionary. He has been named by many

witnesses who appeared before us, as trying to influence

police not to take action against the accused. Minister for

372

forests, Shri Prabhat Singh Chauhan and minister for cottage

Industres, Shri Narayan Laloo Patel are also two clear

examples of this”. (page-52 of Vol.2)

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Page: 429

“Some of the senior BJP leaders and ministers in Shri Modi's

cabinet were also alleged to have participated in the

destruction of minority places of worship. Minister for

revenue, Shri Haren Pandya and health minister, Shri Ashok

Bhatt led the mobs enthusiastically in Ahmedabad. Shri

Bharat Barot, a sitting MLA, was also at the forefront.

Residents of Paldi, from where Shri Pandya was elected,

actually saw him lead arson attacks. Shri Pandya’s election

promise the last time was to wipe any trace of Muslims out of

Paldi”. (page-77 of Vo1.2)

“One of the most shocking aspects of the Gujarat carnage was

that the constituencies of some minister and sitting MLAs

were the arena for the worst incidents of carnage. Bapunagar

in Ahmedabad, one of the worst affected areas, is the home

constituency of the minister of state for home, Shri Gordhan

Zadaphiya. Paldi, Ahmedabad is the constituency of Shri

Haren Pandya, former state home minister and, until

recently, revenue minister in Shri Modi’s cabinet”. (page-87

of Vol .2)

As regards the deposition of Late Haren Panda before the

Concerned Citizens Tribunal, further investigation has established

that the meeting convened at CMs residence, was an essentially law

and order review meeting that was held on 27-02-2002 and that none

of the Cabinet Ministers attended the same. Late Haren Pandya was

not even a Cabinet Minister at that time and was holding the

portfolio of Minister of State for Revenue. Shri Gordhan Zadafia, the

then MoS for Home also did not attend this meeting, as he had stayed

back at Godhra. In view of the version of all the senior officials of the

Home and Police Department the testimony of Late Haren Pandya

before the Tribunal becomes questionable.

373

As regards the entries made by Shri R.B. Sreekumar at page-21 on

12-06-2002, in a register unauthorisedly maintained by him that the call

details of the mobile phone of Late Haren Pandya were handed over to

Shri P.K. Mishra, the then Principal Secretary to CM through Shri O.P.

Mathur in his office, the same appears to be doubtful as Shri Mathur has

denied to have handed over any such call details to Dr. P.K. Mishra in his

office and that Principal Secretary to CM never visited the office of the

State IB, as stated in the said entry made in the register. Moreover, Shri

S.M. Pathak, the then Dy.SP, State IB has confirmed to have conducted

secret inquiry about one of the Ministers, which had met a Forum of

which Justice Krishna lyer, a retired Judge of Supreme Court and some

others were the members, who had come to Ahmedabad to enquire into

the riots in the state. Shri Pathak has also confirmed to have conducted

secret inquiries, which revealed that Late Haren Pandya had met and

deposed before them and that this 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 phone details

of Late Haren Pandya or not, which again creates a doubt about the entry

made by Shri R.B. Sreekumar in his register. Shri PK. Mishra, the then

Principal secretary to CM has stated that he does not recollect, as to

whether be asked Shri R.B. Sreekumar to collect the mobile call records

of Late Haren Pandya and that no phone call details were made available

to him by either Shri Sreekumar or Shri O.P. Mathur. No disclosure was

made by Shri R.B. Sreekumar about the said register in his deposition

before the Commission on 31-08-2004 or in any of the two affidavits filed

by him on 15-07-2002 & 06-10-2004. It is rather surprising that this

when Shri R.B. Sreekumar filed a copy of the same along with his

third affidavit filed before the Nanavati-Shah Commission of Inquiry

on 09-04-2005. It may be mentioned 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 by

Shri R.B. Sreekumar can not be considered to be an authenticated

document, the entries made by him in his said register can not be

considered to be reliable.

Further investigation revealed that Govt. mobile no.

9825039852 was allotted to Late Haren Pandya. The call detail

records of the said mobile phone for 27-02-2002 have been sorted

out from CD made available by Shri Rahul Sharma, DIG and the same

show that Late Haren Pandya remained at Ahmedabad City till

10:46:55 on 27-02-2002. His location at Ahmedabad City again

374

comes at 16:24:24 hrs and thereafter he remained at Ahmedabad

City till 22:52:07 hrs on 27-02-2002 and therefore, this would

conclusively establish that Late Haren Pandya did not attend the law

& order review meeting that took place at CM's residence at

Gandhinagar on 27.02-2002 night.

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In view of the aforesaid position, it appears that Late Haren

Pandya had misled the Hon'ble Members of Concerned Citizen Forum

namely, Mr. Justice (Retd.) P.B. Sawant and Mr. Justice (Retd.)

Hosbet Suresh that he was present in the meeting called by the Chief

Minister at his residence on the night of 27-02-2002 with a view to

increase his credibility. It has been established beyond doubt that

Late Haren Pandya could not have been present in the said meeting

and that the so called evidence given by him was only on hearsay

basis. Since the statement made by Late Haren Pandya is on hearsay

basis, it is not admissible under any provisions of law.

Observation made by Ld. Amicus Curiae:

The statement of Shri RB. Sreekumar cannot be discarded as

hearsay, in the light of Section 6 of the Evidence Act.

Result of further investigation:

As far as allegation, which suggests that a statement was made

by the Chief Minister Shri Narendra Modi on 27.02.2002, in a

meeting at his residence instructing the senior officers to allow the

Hindus to give vent to their anger is concerned, it is significant that

Shri R.B. Sreekumar came on to the scene much afterwards and

evidence brought by him is all hearsay. Shri R.B. Sreekumar became

Addl. (Int.) only on 09.04.2002 and had not attended the meeting

which was held much prior to his joining Ld. Amicus Curiae is of the

view that the above statement of Shri R.B. Sreekumar cannot be

discarded as hearsay in the light of Section 6 of the Evidence Act.

However, the facts suggest otherwise. If there is an interval between

the acts of occurrence and the statement made by the person

375

concerned, it blocks the statements so made from acquiring

legitimacy u/s 6 of the Indian Evidence Act.

Keeping in mind the principles of law laid down by the Hon'ble

Supreme Court of India in regards to hearsay evidence, it has been found

that the evidence given by Shri R.B. Sreekumar neither forms part of the

same transaction nor the said statements have been made by Shri

Sreekumar at the time of occurrence of the incident or at least

immediately thereafter and, therefore are not relevant as per Sec 6 of the

Indian Evidence Act. In the instant case, the so called evidence of Shri

R.B. Sreekumar, concerning the events before the riots was his own

perception as he had no direct knowledge of the same.

Shri R.B. Sreekumar has contended that no follow up action was

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 the administration. A

letter dated 24-04-2002 addressed to ACS (Home) with a copy to DGP

contained an analytical note on current communal scenario in

Ahmedabad City, which is general in nature and no specific instance has

been cited. In brief, it has been mentioned in this note that of late the

minority community was found to be taking an increasingly belligerent

postures as they felt themselves as a section of population left at a total

mercy of radical communal elements of Bajrang Dal and VHP. It was

further mentioned chat the Muslim communities being the major victims

of the riots developed a major grudge against the Criminal Justice System,

which they felt was highly biased. According to Shri Sreekumar certain

VHP and Bajrang Pal leaders had started extorting protection money from

the businessmen from both the communities and were pressurising the

merchants and general public not to employ the members of the minority

community. It was further reported that both Hindu and Muslim

communities had been inciting violence by way of distribution of

pamphlets.

Shri Sreekumar appeared on the scene 40 days after the riots

and whatever has been claimed by him has no direct bearing on the

facts in issue. Shri Sreekumar had also reported that the inability of

Ahmedabad police to control the violence by the communal mob had

eroded the image of police as a law enforcing agency of the society and

the media attacks on the police had a demoralising impact on the police

personnel. It was also pointed out that the Inspectors in charge of the

police stations had been ignoring the instructions given by the senior

officers and complying with the direct verbal instructions from the

political leaders of the ruling party, who ensured their placement and

376

continuance in their choice postings. He had also suggested the remedial

measures such as restoration of faith amongst the minorities in Criminal

Justice system replacement of present incumbents from executive posts

at the cutting edge level, the spiritual leaders of Hindus and Muslims

should launch a state wide campaign to expose the politicised pseudo

religious leaders, action at social level through non-political leaders,

intellectuals and

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Page: 431

NGOs to restore mutual trust between the Hindus and Muslims,

improvement of security in the riot affected areas to facilitate the

rehabilitation of riot victims and purposeful legal action against

publication and distribution of pamphlets inflaming communal passions

etc.

According to Shri Ashok Narayan, the then ACS (Home), this letter

contained general observations and concrete details were missing. Shri K.

Chakravarthi, the then DGP has stated that most of the points and issues

raised by Shri R.B. Sreekumar, had been effectively dealt with by him in

March-April/2002. He is also of the view that the observations made by

Shri Sreekumar were totally general in nature and no specific instance

had been cited by him, which could have called for any immediate action

on his part.

Shri R.B. Sreekumar had sent a review report of law & order

situation on 15-06-2002, in which he had mentioned about an

unprecedented degree of revengefulness of the majority community

resulting in massive and ghastly violence against Muslims in a period of

five days since Godhra carnage and that the communal violence was still

continuing, Shri Sreekumar strongly recommended for the

implementation of remedial measures to contain communal violence and

neutralizing the fundamentalist element in both majority and minority

communities as suggested in his analytical nore dated 24-04-2002. This

law & order assessment report was called for in view of Rath-Yatra, which

was likely to be held sometime in July 2002. In this report, Shri

Sreekumar had expressed the view that on various grounds mentioned by

him, the Rath-Yatra should not be taken out in near future till an

atmosphere of durable peace and goodwill between the majority and

minority communities was established. Shri Ashok Narayan the then ACS

377

(Home) has stated that the administration did not agree with the views of

Shri Sreekumar and the Rath-Yatra was taken on 12-07-2002, under

police bandobast and no untoward incident took place anywhere.

Shri R.B. Sreekumar has further stated that he had sent another

report on the then prevailing law & order situation vide his letter dated

20-08-2002. According to Shri Sreekumar, even at the time this letter was

sent, the communal tension continued and the communal gap between

Hindus and Muslims had widened to an unprecedented degree. It was

further mentioned that there was latent communal tension in most of the

places where incidents were reported and that any minor issue involving

members of minority and majority community would reignite communal

passions resulting in clashes, as had been witnessed in Dhoraji (Rajkot

District) on 17-08-2002. It was further mentioned by Shri Sreekumar that

large sections of the minorities being the major victims of the recent riots

were still to develop adequate faith in Administration, 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 Shri Sreekumar that his assessment of law & order situation

was not in tune with the feedback received from other agencies. Shri

Ashok Narayan further mentioned that some apprehension and a feeling

of insecurity amongst the members of the minority community was

understandable in isolated pockets from where incidents were reported,

but the same do not indicate the feelings of insecurity anymore. Shri

Ashok Narayan has also mentioned that Dhoraji's incident was an

isolated incident and that communal incidents had come down drastically

during the last few months. Shri Ashok Narayan disagreed with the

views of Shri Sreekumar on the ground that no broad based inputs

were relied upon by him before arriving at a conclusion.

Shri R.B. Sreekumar had sent another report regarding the

emerging law & order vide his letter dated 28-08-2002. In this letter, he

had assessed that the social relations between the Hindus and Muslims

remained highly strained including the traditional communal pockets as

well as new areas where the riots had taken place, due to various reasons.

Shri Sreekumar had suggested that District Magistrates/Commissioners

of Police/Superintendent of Police be suitably advised to ensure that the

organizers of the public function/political campaign should avoid

projecting communal issues that might widen the rift between the two

communities and also to abide by the conditions of the license/

permission granted to them. Shri K. Chakravarthi has stated that Shri

R.B. Sreekumar had given same suggestions and most of it pertained to

the Revenue Department and other departments. As far as police

378

department was concerned, he (Shri Chakravarthi) had given

directions based on his suggestions.

In view of the aforesaid position, it cannot be said that no

action was taken by the Govt. on the assessment of situation made

by Shri R.B. Sreekumar. Of course, there was difference of opinion

between Shri R.B. Sreekumar and the Home Department on certain

issues. However, the fact remains that Shri Sreekumar appeared on

the scene 40 days after the riots and remained

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posted as Addl. DG (In1.) for a little more that five months, and

therefore, whatever has been claimed by him has no direct bearing

the issue i.e. events of 27/28-02-2002 or subsequently in March

2002.

> Observation made by Ld. Amicus Curiae:

Another aspect is the fact that VHP General Secretary Jaydeep Patel

and Shri Modi were at Godhra on 27-02-2002. The statement of

Jaydeep Patel that he did not meet Shri Narendra Modi at Godhra

does not inspire confidence. This has to be examined as the

Mamlatdar would not have handed over the dead bodies to a non-

government person i.e. Jaydeep Patel 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 hrs and was

accompanied by Shri Anil Mukim, the then Secretary to CM. He as

received at the helipad by Smt. Jayanti Ravi and Shri Ashok Bhatt and

he straightaway drove to the Godhra Railway Station. CM inspected

the spot and talked to some of the persons gathered there. From

Godhra Railway Station, he went to Civil Hospital and saw the

persons injured in the Sabarmati Express train burning incident.

Since, curfew had been imposed in Godhra town, the Chief Minister

379

then proceeded to Collectorate and held a meeting with the Ministers

present there, namely Shri Ashok Bhatt, the then Health Minister,

Shri Gordhan Zadafia, the then MoS (Home), Shri Bhupendra

Lakhawala, the then MoS (Civil Defence), Shri Prabhatsinh Chauhan,

the then MoS for Aviation & Pilgrimage and Shri Bhupendrasinh

Solanki, the then MP, Godhra, Collector & District Magistrate, Police

Officers and Railway Officers. The Chief Minister had also met the

Press thereafter. Smt. Jayanti Ravi has stated to SIT that in the

meeting held at Collectorate, a unanimous decision was taken that

the dead bodies, which had been identified should be handed over to

their relatives at Godhra itself and those bodies whose legal heirs or

guardians had not come, could be sent to Sola Civil Hospital,

Ahmedabad, since these deceased passengers were heading towards

Ahmedabad in Sabarmati Express. The decision to send the bodies to

Sola Civil Hospital was taken in view of the fact that it was situated

on the outskirts of Ahmedabad City and thus away from the crowded

area for security reasons. It has further come to light that out of 58

burnt and dead bodies, 4 bodies belonging to Dahod, Vadodara,

Panchmahal and Anand Districts were handed over to their legal

heirs/guardians after identification at Godhra itself. The remaining

54 dead bodies were to be sent with police escort to Sola Civil

Hospital, Ahmedabad and Shri Jaydeep Patel, who was present at

Collectorate, was to accompany these dead bodies to Ahmedabad.

Further investigation revealed that Shri M.L. Nalvaya, the then

Mamlatdar & Executive Magistrate prepared a letter addressed to Dr.

Jaydeep Patel of VHP, in which he had mentioned that 54 dead bodies

were being sent through five trucks as detailed below:

Sr. No.

Truck No

No. of Dead

Bodies carried

GJ-17-5055

GJ-17-T-7557

GJ-17-X-3225

GJ-16-T-9253

GJ-17-T-7327

(TATA 608

tempo)

Shri Hasmukh T. Patel of VHP had acknowledged the receipt of

dead bodies. It may be mentioned here that the handing over of the

380

bead bodies to their legal heirs/guardians was the duty of the railway

police, which had registered a case in connection with this incident.

On his further examination Shri Nalvaya has stated that these

dead bodies were handed over officially to Shri Jaydeep Patel and

Shri Hasmukh T. Patel of VHP as per the instructions given by Smt.

Jayanti S. Ravi, District Magistrate, Godhra and Late B.M. Damor,

ADM, Godhra. Shri M.L Nalvaya has filed an affidavit, before Nanavati

Commission of Inquiry to this

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effect on 05-09-2002. However, Smt. Jayanti Ravi has stated that no

such instructions were given to Shri Nalvaya to hand over the dead

bodies to Shri Jaydeep Patel or Shri Hasmukh T. Patel of VHP and

that Shri Jaydeep Patel was merely to accompany the dead bodies to

Ahmedabad.

Shri Jaydeep Patel visited Godhra on 27-02-2002 and was present

at the Collectorate. Further investigation revealed that as per the call

detail records of mobile phone no. 9825023887 of Shri Jaydeep Patel, he

reached Godhra on 27-02-2002 around 1248 hrs and remained there till

2358 hrs. At Godhra, he had made/received calls to/from Shri Gordhan

Zadafia at the latter's mobile phone no. 9825049145. All these calls had

been made/received between 2003 hrs and 2113 hrs. It is, therefore, quite

possible that Shri Gordhan Zadafia, the then MoS (Home), might have

instructed the police authorities to allow Shri Jaydeep Patel to accompany

the dead bodies. The aforesaid call detail records establish that Shri

Jaydeep Patel remained at Godhra till about 2358 hrs on 27-02-2002.

Shri Jaydeep Patel has stated that he did not meet Shri Narendra

Modi, Chief Minister. Since most of the persons, who had died in Godhra

carnage were the karsevaks of Vishwa Hindu Parishad, he met some local

administrative and police officials, whose names he could not recollect at

this stage, and requested them to hand over the dead bodies of the

Karsevaks to him for onward transportation to Ahmedabad. The district

officials accede to his request and accordingly a letter was prepared by

Mamlatdar and Executive Magistrate, Godhra in his name specifying the

details of the dead-bodies and the number of trucks in the same. Shri

Hasmukh T. Patel of VHP, who had accompanied him, acknowledge the

381

receipt of these dead-bodies as per his signature appering on the list. It

may be mentioned here that 58 persons had dies in this incident out of

which 4 persons were identified at Godhra railway station itself by their

relatives. The dead-bodies of these four persons were handed over to their

relatives after identification. Five trucks were arranged by the district

administration for the transportation of the dead bodies. Shri Jaydeep

Patel has stated to have met the lady collector of Godhra around 23.30 or

24.00 hours. A police escort had accompanied the dead bodies from

Godhra and on the way to Ahmedabad the escorts from the concerned

districts joined. The convoy reached Sola Civil Hospital, Sola, Ahmedabad

between 0330 hours to 04.00 hours on 28.02.2002. At Sola Civil Hospital,

a lady doctor, PI Shri Lathia of Sola Police station, Shri Prajapati, Deputy

Collector, Collector and Mamlatdar were present. There were several other

administrative and police officials present there, whose names he does

not recollect. He handed over the letter to Shri Prajapati, Deputy Collector.

Thereafter, the police and administrative officials got busy with the

preparation of panchnama and other papers.

Further investigation revealed that the relatives of the persons,

who had died in the Godhra carnage, were also present in the

hospital. Accordingly, 35 persons were identified and their dead

bodies handed over to their relatives by about 1300 hrs on 28-02-

2002 by the police after obtaining the receipts from them. It may be

mentioned here that 25 dead bodies were claimed by the residents

of Ahmedabad, two (2) by the residents of Kadi, Mehsana, five (5) by

the residents of Anand, two (2) by the residents of Khedbramha,

Sabarkantha and one (1) from Rajkot. The photographs and DNA

samples of the remaining unidentified 19 dead bodies were taken by

the hospital authorities. These 19 unidentified dead bodies were

cremated on 28-02-2002 evening, at Gota cremation ground nearer

to the Sola Civil Hospital by the District Administrative and Police

officers with the help of Surpanch of Gota village. The cremation was

completed by about 1830 hrs on 28-02-2002.

Shri Narendra Modi, Chief Minister had earlier stated that Shri

Jaydeep Patel, the then VHP General Secretary was known to him.

However, he does not remember to have met him at Godhra. According to

Shri Modi, after the decision was taken to transport the dead bodies to

Ahmedabad, it was the duty of the District Administration to chalk out

the modalities for its transportation.

It may thus be seen that the journey from Godhra to Ahmedabad

started around midnight and the dead bodies reached Sola Civil Hospital

382

sometime between 0330 to 0400 hrs and there was no one on the highway

at that point of time in the night to see them. Further, though a letter had

been addressed by Shri M. L. Nalvaya in the name of Shri Jaydeep Patel

of VHP and the dead bodies were acknowledged by Shri Hasmukh T. Patel

of VHP, yet the dead bodies were escorted by the police upto Sola Civil

Hospital, Ahmedabad situated on the outskirts of Ahmedabad City. At

Sola Civil Hospital, Shri Jaydeep Patel handed over the letter to the

hospital authorities and the local police as well as the hospital authorities

took charge of the dead bodies. Subsequently, 35 dead bodies were

handed over to the legal heirs/guardians of the deceased by

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the police after preparing the panchnama and documentation. The 19

unidentified dead bodies were cremated on the same evening by the local

administration and police authorities at Gota cremation ground nearby

with the help of Sarpanch of Gota village after retaining their DNA

samples. Subsequently, 12 dead bodies could be identified after

conducting DNA tests, while the remaining seven (7) remained

unidentified.

The above facts would go to establish that though a letter had

been addressed by Mamalatdar, Godhra to Shri Jaydeep Patel of VHP,

yet the dead bodies were escorted by the police from Godhra to

Ahmedabad, where the same were taken charge of by the hospital

authorities, District Administrative and Police Officers and handed

over to the kith and kin of deceased persons after taking proper

receipt. Shri M.L. Nalvaya, Mamalatdar had acted in an irresponsible

manner by issuing a letter in the name Shri Jaydeep Patel in token

of having handed over the dead bodies which were case properly, and

therefore, the Govt. of Gujarat is being requested to initiate

departmental proceedings against him.

➢ Observations made by Ld. Amicus Curiae:

The positioning of 2 Cabinet Ministers having nothing to do with

the home portfolio in the Office of DGP and the State police Control

Room respectively is another circumstance which reflects that there

was a direct instruction from the Chief Minister. Though Shri

383

Jadeja says that he had gone to the DGP's office on instructions of

Shri Gordhan Zadafia, MoS (Home) this is highly unbelievable. It is

obvious that the Chief Minister had positioned these 2 Ministers in

highly sensitive places which should not have been done. Infact,

these 2 Ministers could have taken active steps to defuse the riots,

but they did nothing, which speaks volumes about the decision to

let the riots happen. It does not appear that these 2 Ministers

immediately called CM and told him about the situation at Gulberg

and other places.

SIT merely relied upon the statement of the police officers to

conclude that these 2 Ministers did not give any instructions to

Police department, but it appears highly unlively that 2 Cabinet

Ministers of the Government of Gujarat would have not given some

kind of directions when CM had directed them to remain present.

It is obvious that the 2 Ministers were fully aware of the developing

situation in Gulberg Society, Naroda Patiya etc, in Ahmedabad City.

They were duty bound to convey the situation to the Chief Minister

and were required to do everything possible to save loss of lives. If

the stand of CM that these 2 Ministers were positioned so as to

effectively control the law and order situation is correct, then there

would have been a far quicker action to control the riots in Gulberg

Society and Naroda Patiya atleast.

Result of further investigation:

Further investigation has been conducted into the allegation

relating to the. positioning of Shri I.K. Jadeja, the then Urban

Development Minister in the State Police Control Room, DGP's office and

Late Ashok Bhatt, the then Health Minister in the Ahmedabad City Police

Control Room.

Shri K. Chakravarthi, the then DGP has stated during further

investigation that Shri Ashok Narayan, ACS (Home) informed him that it

was decided by the Govt. that Shri I.K. Jadeja, the then Minister would

be in his office to secure some information about the law & order situation

in the State as State Control Room is situated in DGP's office. Shri Ashok

Narayan had further informed him that Late Ashok Bhatt another

Minister would sit in Ahmedabad City Police Control Room. Shri

Chakravarthi has further stated that he had his own reservations in this

matter and, therefore, he advised the ACS (Home) that it would be better,

if these Ministers got the information from the Control Room in the Home

384

Department. However, Shri Ashok Narayan informed him that no such

facility was available with him in the Home Department and, therefore,

the two Ministers would come to the respective Control Rooms.

According to Shri Chakravarthi, Shri I.K, Jadeja, the then Minister

came to his office in the forenoon of 28-02-2002 and sat in his chamber

for about 15-20 minutes. Shri Chakravarthi could not attend to him, as

he was awfully busy with the telephone calls being received by him from

all over the State. According to his recollection, 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 also stated

that he was not aware as to what Shri Jadeja did while he was in the

DGP's office as he was extremely busy with his work on 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 with the staff of the State Control

Room had revealed that Shri Jadeja did not interfere with the functioning

of the Control Room in any manner.

Shri P.C. Pande, the then CP, Ahmedabad City has stated that it

was incorrect to say that Shri Ashok Bhatt, the then Health Minister

remained stationed at Shahibaug Control Room on 28-02-2002 to guide

the police force in controlling the law & order situation. He specifically

asserted that Shri Bhatt did not visit CP's office Control Room on 28-02-

2002. He has further stated that Shri George Fernandes, the then Union

Defence Minister arrived at Ahmedabad on 28-02-2002 night. Shri

Fernandes reached CP's office on 01-03-2002 around 1000 or 1030 hrs

and asked Shri Pande about the deployment of Army, to which the latter

said that he would check up the same from the Control Room. Both of

them went to the Control Room downstairs. According to Shri Pande,

Shri Ashok Bhatt, who had been waiting for Shri Fernandes in the Circuit

House, also came to CP's office to meet Shri Fernandes and entered the

Control Room. Shri Pande has also stated that Shri Fernandes and Shri

Ashok Bhatt remained in the Control 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 as such it was somehow made to appear that Shri Ashok Bhatt had

385

come to monitor the Control Room. Finally, Shri Pande has stated that

Shri Ashok Bhatt was never deputed to Shahibaug Police Control Room

to assist the police.

According to Shri Ashok Narayan, he does not recall any

instructions given by the Chief Minister, which were conveyed by him

either to the DGP or CP, Ahmedabad City to the effect that Shri Ashok

Bhatt and Shri I.K.Jadeja would sit in the Ahmedabad City Police Control

Room, Shahibaug and State Control Room, Gandhinagar respectively to

assist/help the police.

Shri I.K. Jadeja, the then Urban Development Minister has stated

that it was an established norm in Gujarat State that in case of any

natural calamities or serious law & order situation the Ministers of

various departments extend their help in handling the crisis. According

to his recollection on 28-02-2002, he had volunteered himself, if he could

be of any help in the prevalent situation, to which Shri Gordhan Zadafia,

the then MoS (Home) had told him to remain present in the Police Bhavan

and to see that in case any information was received in the State Control

Room about any rioting incident and any information was received

seeking extra police force, then the same should be passed on to the Home

Department. Consequent to these instructions, he went to DGP's office

around 1100 hrs and stayed there for 2-3 hours. He has stated to have

interacted with the DGP and informed him that if and when his help was

required he could ask him. He has denied to have entered the State Police

Control Room and has stated that there was no question of any

interference. However, Shri Gordhan Zadafia, the then MoS (Home) has

denied to have any given any suggestion to Shri I.K. Jadeja. He has further

stated to 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 the DGP

had not shared any information with him and therefore, he left Police

Bhavan in few minutes on both these occasions.

Late Ashok Bhatt had earlier stated that he might have visited

Ahmedabad City Control Room for about 5-10 minutes on 28-02-2002.

However, he has denied to have interfered with the police work, as being

a senior minister he had to maintain his dignity and status. Again on 01-

03-2002, he admitted to have visited the Shahibaug Control Room for

about 10 minutes to meet Shri George Fernandes, who had gone to CP's

office. The call detail records of mobile phone no. 9825039877 of Late

Ashok Bhatt show that he returned from Godhra to Ahmedabad on 28-

02-2002, at about 05:16:51 hrs. Thereafter, the call details do not show

its location till 15:50:43 hrs on 28-02-2002, when the location was traced

386

to Kaba Circle, Gandhinagar. During this period, it is presumed that he

was at Gandhinagar. His location on 28-02-2002 at 16:16:37 hrs to

17:47:22 hrs was shown as Shahibaug Kedar Tower, Ahmedabad City,

which would conclusively prove that during this period he attended CM's

press conference at Circuit 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 Shahibaug Police Control

Room on 28-02-2002.

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Page: 436

Shri Sanjiv Bhatt, the then DC (Int.) has stated that he had attended

a meeting at CM's residence on 28-02-2002 along with the DGP and ADGP

(Int.). After the meeting, he returned to his chamber on the second floor

of Police Bhavan at about 1100 hrs and shortly thereafter went to meet

the DGP on the first floor of the same building. When he entered DGP's

chamber he found that as instructed after the conclusion of CM's meeting,

two Cabinet Ministers of Gujarat, namely, Shri Ashok Bhatt and Shri I.K.

Jadeja had already arrived and were sitting on a sofa-set in DGP's

chamber. He further stated that Shri G.C. Raiger, the then Addl. DG (Int.)

and Shri Maniram, the then Addl. DG (Law & order) were also present

there. Shri Sanjiv Bhatt briefed DGP and after taking tea, he returned to

his chamber. Shortly thereafter, Shri Sanjiv Bhatt happened to go to State

Control Room on first floor to collect some documents and saw Shri I.K.

Jadeja and his supporting staff sitting in the chamber of Dy.SP, Control

Room. Finding this a little odd, Shri Sanjiv Bhatt went to DGP and

informed him that it would be improper to permit outsiders in the State

Control Room and asked him whether the Minister and his supporting

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 accompany him as his presence in the

Control Room would hamper the smooth functioning of the State Control

Room, during such a critical period, whereupon the latter got up and

followed him. According to Shri Sanjiv Bhatt, he took Shri Jadeja,

Minister to the chamber of Shri P.C. Thakur, the then IGP, which was

empty at that time and requested him to make himself comfortable and

contact them for any assistance/requirement. Shri Chakravarthi was

informed about it. Shri Sanjiv Bhatt has also stated that subsequently he

387

learnt that Shri Jadeja left the Police Bhavan sometime in the afternoon,

after having lunch. Shri Sanjiv Bhatt is not aware about the visit of 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 at 0800 hrs, has stated that

Shri George Fernandes, the then Union Defence Minister and Shri Harin

Pathak, the then MoS for Defence had come to Police Control Room,

Ahmedabad City at 1005 hrs on 01-03-2002, and left at 1025 hrs. He has

confirmed the wireless message in this regards to be under his signature.

He has denied knowledge about the visit of Late Ashok Bhatt, the then

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 denied the visit of Late

Ashok Bhatt, the then 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 denied the visit of Late Ashok

Bhatt, the then Health Minister to the Ahmedabad City Police Control

Room either on 28-02-2002 or 01-03-2002.

Shri Parbatsinh A. Dholetar, the then PSI, Ahmedabad City Police

Control Room, who was on duty on 28-02-2002 from 0800 hrs to 1200

hrs and 2000 hrs to 2400 hrs, has denied the visit of any Minister to the

Police Control Room.

Shri Maganbhai M. Limbachia, the then PI, who was on duty from

0800 hrs to 2000 hrs on 01-03-2002 in State Police Control Room, Police

Bhavan Gandhinagar, has denied the visit of any Minister in the Control

Room.

It may thus be seen that Shri K. Chakravarthi has categorically

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 has confirmed that he was shifted to an

empty 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 Jadeja did not interfere with their work.

Shri I.K. Jadeja has taken the plea that it is an established

practice in Gujarat State that in case of any natural calamities or

serious law & order situation the Ministers of the various

departments extend their help in handling the crisis. Late Ashok

Bhatt had admitted earlier that he might have visited Ahmedabad

City Police Control Room on 28-02-2002 for a few minutes, but the

388

call detail records of his official mobile phone show his location at

Shahibaug Kedar Tower between 16:16:37 and 17:47:22 on 28-02-

2002, when he attended CM's press conference. This would

conclusively prove that he did not visit the Police Control Room on

28-02-2002. Moreover, the officials of Ahmedabad City Police

Control Room have denied that Late Ashok Bhatt ever visited the

said Control Room either on 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 interfere

with the working of the police and the DGP also did

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Page: 437

not share any information with him. However, it could not be

established that Late Ashok Bhatt visited Ahmedabad City Police

Control Room either on 28-02-2002 or 01-03-2002. As per his own

admission he might have visited the Control Room for a few minutes

on 28-02-2002 and/or 01-03-2002. Therefore, the allegation that the

two Ministers were positioned in the State Control Room and

Ahmedabad City Police Control Room by the Chief Minister is not

established. Significantly, Shri I.K. Jadeja remained at State Police

headquarters for 2/3 hours as per his own admission but did not

interfere in the police functioning. Late Ashok Batt's presence in the

City Police headquarters on the relevant day, if any, was very

negligible and it cannot be termed of any material value. In the

absence of documentary/oral evidence of any directions given by

these two Minister IO Police officials, it can not be said at this stage

that they conspired in the preparation of riots or did not take any

action to control the riots.

Observation made by Ld. Amicus Curiae:

No tangible action seems to have been taken by the police high ups

in the Police Department, namely Commissioner of Police, to control

the riots at Gulberg Society. Gulberg Society is not very far away

from the Office of Commissioner of Police, Ahmedabad.

389

Result of further investigation:

Further investigation conducted about the role played by Shri P.C.

Pande, the then Commissioner of Police, Ahmedabad City revealed that

on 27-02-2002, Shri Pande remained in the office 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 Shri M.K. Tondon, the then Jt. CP, Sector-II. On 28-2-2002,

Shri Pande came to office around 08:00 hrs. After sometime, he came to

know that the dead bodies of victims of Godhra incident had been brought

to Sola Civil Hospital and that some kind of dispute/altercation was going

on and the atmosphere was tense at Sola Civil Hospital. Accordingly, Shri

P.C. Pande went to Sola Civil Hospital around 10:00 hrs and found that

the doctors were under pressure to complete the documentation whereas

the relatives of the victims were in a hurry to take the dead bodies.

However, Shri Pande did not find anything alarming and, therefore,

returned to his office at about 11:00 hrs.

On the way, he found that the mobs had assembled at many places

in large numbers, but they were not violent and most of them being

spectators. While Shri Pande sat in his office, the reports started pouring

in from all parts of the city about stone pelting, arson, looting and

damaging of properties. He does not exactly remember, but whenever any

information came to him about any incident or any distress call was

received from any individual the same was promptly attended and the

information immediately passed on to the concerned officer with

instructions to attend to it on priority basis. The Control Room was

flooded with numerous calls for help and as such with the available force

it was not possible to effectively deal with all the situations. It may be

mentioned here that on that day many distress calls had been received

from Police Station areas like Satellite, Navrangpura, Ellisbridge,

Bapunangar, Amraiwadi, Meghaninagar, Naroda and Odhav, which had

comparatively faced lesser communal problems in the past. A few calls

had been received from walled city as well namely Shahpur in particular,

but the extent of damage was much less. Keeping in view the gravity of

the situation curfew was declared in many parts of the city from 1220 hrs

onwards.

As far as Shri P.C. Pande recollects, he had instructed Shri M.K.

Tandon, the then Jt. CP, Sector II on 28-2-2002 forenoon, to go to

Meghaninagar as some calls of crowd gathering and stone pelting etc were

being received in the Control Room Meghaninagar P.S. area. He has stated

390

that he did not know Late Ahesan Jafri, Ex-MP personally and also did

not have knowledge that he was residing 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 hours and had Spoken

to him over mobile phone that the situation was alarming and

recommended that curfew should be declared in the Naroda P.S. area. He

concurred with the advice of Shri Tandon and curfew was declared in

Naroda P.S. area at about 12:30 hrs. Shri Pande has also stated that

Ahmedabad City was totally disturbed and communication as well as

transport system had come to standstill. According to Shri Pande, the

additional force wherever sent was unable to reach in time because the

roads had been

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blocked/obstructed by the rioters by putting different kind of obstacles

and large crowds had collected making movement difficult.

On 28-2-2002 at about 12:20 hrs, a message was sent by PI

Meghaninagar P.S. in the Control Room that Gulberg society in

Meghaninagar area which is a Muslim society had been surrounded by a

mob of 10,000, which was pelting stones and also setting fire to shops

nearby and rickshaws. He requested for additional officers police

personnel and SRP immediately. On receipt of this message, Shri P.C.

Pande deputed three officers namely 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 to Gulberg society for the assistance of PI Meghaninagar.

At about 13:45 hrs. one section of CISF was also sent to Gulberg society,

Meghaninagar. At 1405 hrs., Shri M.K. Tondon, Jt. CP, Sector-II sent a

message to the Police Control Room that Late Ahesan Jafri Ex-MP and

others had been surrounded by the mob in Gulberg society and extra force

and PI, Sardarnagar be sent there to shift them. At 14:14 hrs, another

message was sent by Senior PI Erda, Meghaninagar P.S. in the Police

Central Room that a mob of about 10,000 persons had gathered at

Gulberg society/Kalapinagar and was about to set fire to the entire society

and as such ACP, DCP along with additional force be sent immediately.

At 14:45 hrs, Shri K.G. Erda, Sr.PI Meghaninagar sent another message

to the Control Room that in the Gulberg society in Meghaninagar area,

391

the Muslims had been surrounded by a mob of 10,000 persons from all

the sides and even the police force had also been surrounded and that

the mob was about to set fire to the society. Shri Erda requested for

additional SRP and police force to be sent as the situation was critical.

Since, two Dy. SsP, One PI and one section of CISF had already been sent

to Gulberg society, no additional force was sent as nothing was available

as reserves. Shri Pande contacted Shri P.B. Gondia, the then DCP, Zone-

IV at 15:16 hrs and told him that Muslims were being burnt in the

Gulberg 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-II though fully aware of

the situation at Gulberg Society sent a message to Ahmedabad City Police

Control Room asking as to whether there was any incident relating to loss

of life at Gulberg society at Meghaninagar and thereof a detailed report be

sent to him. No other information was available with the Control Room at

that time. Shri Pande has also stated that Shri K. Chakravarthi, the then

DGP had also informed him that a mob had surrounded the Gulberg

Society and that reinforcements should be sent there, to which he had

informed him that extra force and officers had already been sent to

Gulberg Society in Meghaninagar P.S. area. However, Shri Pande has

claimed that he did not know as to when the additional police force sent

by him had actually reached Gulberg Society. He has stated that he had

come to know about the incident at Gulberg Society sometime in the

evening and as such personally visited the society sometime between

19:00 hrs to 19:30 hrs. Shri Pande found that the houses were ransacked

and belongings set on fire and some wooden articles/furniture etc. was

still smoldering. According to Shri Pande, since the Jt. CP had already

shifted most of the inmates of the society in vans to safer places, he gave

instructions to the Sr. PI and other staff present over there to go ahead

with the inquest and send the dead bodies for post-mortem examination.

He returned to office thereafter.

As per Shri Pande, Late Ahesan Jafri, Ex-MP did not contact him

either on his landline phone or mobile phone on 28-2-2002, seeking help.

No one else from Gulberg society contacted him either on his landline or

mobile phone seeking help on 28-2-2002. The call detail records of official

mobile phone no. 98250 48303 of Shri Pande have been scrutinised and

the same does not show any 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 and

there was no other landline in Gulberg Society.

392

Shri Pande has added that on 28-2-2002, requests were received

from different police stations areas seeking additional force/SRP and

whatever resources were available with him, the same were dispatched to

them. However, he found that no feedback had been received from anyone

of them. This led him to presume that the additional force reached them

in time and that they were able to control the situation. Shri Pande is

also of the view that similar was the case of Gulberg Society where initially

three officers, two Dy. SsP and one Pl and subsequently one section of

CISF was sent by him.

Shri Pande also stated that on 28-2-2002 around 2 o'clock in the

afternoon, he heard a noise outside the CP's office. He immediately

checked and found that a dargah adjoining CP office had been attacked

by a mob. Since, there was no other force available 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 handedly and waited

there for sometime to ensure that the mob did not re-assemble. By this

timely action, the dargah could be saved from the rioters.

Shri P .C. Pande has stated that the circumstances did not exist on

27-2-2002 or even 28-2-2002 to variant the imposition of curfew, in

Ahmedabad City and any hasty action would have led to the panic in the

city. He has further stated that even otherwise with limited force available

enforcement of curfew poses serious problems and large scale breach

becomes common. According to Shri Pande, as and when the sector

commanders reported over phone about the seriousness of the situation

at any place, he immediately concurred over telephone and ordered for

the imposition as well as enforcement of the curfew. As per Shri Pande,

almost the whole of the city was under curfew by noon time. In view of

this, there does not seem to be any deliberate and gross negligence on his

part.

Shri Nisar Mohd. Malik, the then PSI, Police Control Room,

Ahmedabad City, who was on Police Control Room duty from 0800 hrs on

28-02-2002 to 0800 hrs on 02-03-2002, has stated that 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 Shri Shivanand Jha, the then Addl. CP,

393

Sector-I or any other officer on 28-02-2002 and 01-03-2002, which might

have suggested/instructed for inaction on the part of police while dealing

with the Hindu rioters. He has further stated that the

instructions/messages of the senior officers, which were passed through

Ahmedabad City Police Control Room, were for taking all the required

measures to control the riots and prevent any untoward incident. Shri

Malik has also stated that Shri P.C. Pande, the then CP had visited the

Police Control Room and passed on the instructions personally to the

jurisdictional officers to use effective force and control the riots. He does

not remember the exact date and time of the said message passed on by

Shri Pande, but had noted down the said instructions in the message

was made aware of messages regarding law & order situation, he had

passed necessary instructions such as imposition of curfew and

deployment of manpower. 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 Ahmedabad City

Police Control Room from 0800 hrs on 28-02-2002 to 0800 hrs on 02-03-

2002 has fully corroborated the statement of Shri Nissarmohmad Malik,

the then PSI.

Shri Shivanand Jha, the then Addl. CP. Sector-l, Ahmedabad City

had stated that there were no instructions from any of the senior 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 stated that no

such instructions were given by any of the senior officers to allow the

Hindus to vent their anger against Muslims in the light of Godhra carnage

and that the police should not act against them. Shri Tondon has further

stated that on the contrary the instructions were given to deal with the

situation firmly.

Shri Pande has explained that the mobs had swelled to such an

extent that they openly defied the curfew orders and as and when

they were challenged by the police, they hid themselves in the lanes

and after the police left they regrouped. He is also of the considered

opinion that this had happened due to the inadequate number of

policeman on duty and those present could not leave the places

where they were deputed. He stated that the police force was engaged

in a particular area, the mobs concentrated on other areas. Similarly,

the fire tenders sent to Gulberg society and Naroda could not reach

there in time due to obstacles put on by the rioters resulting in loss

of life and property in these areas. He has also mentioned that the

394

Meghaninagar and Naroda P.S. had never been communally sensitive

in the past and as such the attacks in Naroda Patiya and Gulberg

society were beyond their expectations. In view of the aforesaid

position, the allegation that Shri Pande did not take adequate actions

to control the situation at Gulberg Society is not established.

Observation made by Ld. Amicus Curiae:

The observation of Shri Modi in a television interview on 01-03-2002

clearly indicates that there was an attempt to justify the violence

against the minority community. This indicates as certain

approach. The statement made by Shri Modi cannot be seen in

isolation. It has to

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Page: 440

be seen in conjunction with other facts mentioned hereinabove

which provides sufficient justification for a detailed investigation

in the matter.

Result of further investigation:

During further investigation, a requisition was sent to the Zee

TV to make available a copy of the CD of a television interview of

Shri Narendra Modi, Chief Minister, Gujarat conducted by their

correspondent Shri Sudhir Chaudhary on 01.03.2002. Despite two

reminders and a notice u/s 91 Cr.P.C. sent to them, the CD has not

been made available.

Shri Sudhir Chaudhary has stated that he attended a press

conference held by Shri Narendra Modi on 01-03-2002, at a Circuit

House on the outskirts of Gandhinagar. He has further stated that

Shri Narendra Modi was known to him and that he had interviewed

him earlier several times in Delhi. Shri Sudhir Chaudhary has stated

to have requested Shri Narendra Modi for a short interview after the

conference to which the latter agreed and as such he was interviewed

for about 10 minutes. After going through the Editor's Guild Fact

Finding Mission report dated 03.05.2002, Shri Chaudhary has stated

395

that the same were only a few excerpts from the said interview and

that the original CD of the said interview was not before him. As per

his recollection, he had questioned Shri Narendra Modi about the

Chamanpura massacre (Gulberg Society Case), in which former

Congress MP Late Ahesan Jafri had been killed with many others to

which the Chief Minister had replied that the mob had reacted on

account of private firing done by Late Ahesan Jafri, Ex-MP. After

refreshing his memory from the Editor's Guild report, Shri Sudhir

Chaudhary has stated that the Chief Minister was of the view that he

neither wanted action nor reaction. He has further stated to have

questioned the Chief Minister about the wide spread violence post

Godhra, the Chief Minister stated as follows:-

"Godhra main jo parson hua, jahan par chalees (40)

mahilaon aur bacchon ko zinda jala diya is main desh

main aur videsh main sadma pahuchna swabhavik tha.

Godhra ke is ilake ki criminal tendencies rahi hain. In

logon ne pahele mahila teachers ka khoon kiya Aur ab yeh

jaghanya apraadh kiya hai jiski pratikria ho rahi hai".

Shri Sudhir Chaudhary has shown his inability to elaborate the

same as he has not been able to recollect the exact sequence of

events after a span of 9 years and moreover, the CD was not before

him.

Shri Narendra Modi had been questioned about the aforesaid

interview given to Zee TV on 01.03.2002. He has stated that those

who have read the history of Gujarat would definitely be aware that

communal violence in Gujarat has a long history and the State had

witnessed serious incidents of such communal violence. As regards

the Zee TV interview of 01.03.2002 is concerned, Shri Modi has

stated that after a period of eight years, he did not recollect the exact

words, but he had always appealed only and only for peace. He (Shri

Modi) had further stated that he had tried to appeal to the people to

shun violence in straight and simple language. He had also stated

that if his words cited in this question are considered in the correct

perspective, then it would be evident that there is a very earnest

appeal for people refraining from any kind of violence. He had denied

all the allegations against him in this regard.

Regarding the statement made to the media about post Godhra

riots by citing Newton's law that every action has equal and opposite

reaction, Shri Narendra Modi had stated that the Times of India had

published a news item on 03.03.2002, purportedly as though he had

396

given an interview to them. According to Shri Modi, the truth is that

nobody had met him in this regard. He had further stated that the

falsehood of his so-called justification "Action-Reaction Theory" is

evident from this fact. According to Shri Modi, the State Govt. issued

a denial with regard to his not having given any interview and the

same was belatedly published in a remote corner of the newspaper.

He had also stated that it had been his considered opinion that

violence can not be replied by violence and he had appealed for

peace. As per Shri Modi's version, he had not and would never justify

any action or reaction by a mob against innocents. He had denied all

allegations in this regard.

The recommendations made in Chart ‘B' by the Ld. Amicus

Curiae vis-a-vis comments of SIT are given below:-

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Page: 441

Chart-’B’

ALLEGATIONS

FINDINGS

OBSERVATIONS

VII: The allegation is that

13 IAS/IPS officers were

rewarded for their

support during the post

Godhra riots.

The finding of the SIT is

that there was nothing to

indicate that 13 officers

had been rewarded with

postings for their support

to CM. However, the SIT

had concluded that the

conduct of Shri M.K.

Tandon, the then Jt.CP,

Sector-Il, Ahmedabad,

was not satisfactory and

therefore, Departmental

Action be taken against

them.

1. As regards, Shri M.K.

Tandon, the then Jt.

CP, Sector-Il and Shri

P.B. Gondia, the then

DCP, Zone- IV it does

not appear to be a

simple case of mere

dereliction of duty,

section 304A IPC would

be squarely attracted in

such a case.

2. In so far as

promotion of other IAS

and IPS officers are

concerned, the view

taken by SIT seems to

be acceptable.

397

IX. The allegation is that

the Govt. of Gujarat has

been seriously indicted-

by this Hon'ble Court due

to fresh investigation in

Bilkisbano case by CBI

and retrial of Best Bakery

Case outside the State of

Gujarat.

1. The SIT has concluded

that the trials in both the

cases are over. Some

accused have been

convicted and some

accused have been

acquitted and the

appeals are pending

before the High Court.

2. The SIT has

recommended that the

matter requires to be

handled by state of

Gujarat to take

departmental action for

major penalty against

Shri K Kumaraswamy, Jt

CP, Baroda City and Shri

Ramjibhai Pargi, former

ACP in light of

observation of the Ld

Sessions Judge, Greater

Bombay. It also

recommends setting up

of a Committee by Govt.

of Gujarat to fix

responsibility on the

officials.

1. The investigative

agencies let off the

accused in Bilkisbano

case. If the CBI had not

stepped in, the accused

would have gone

unpunished. Similarly,

in Best Bakery case, it

appears that the

prosecution was done

in a shoddy manner to

protect the accused.

2. The

recommendations of

the SIT that the Govt.

of Gujarat should set up

a committee perhaps

needs to be

reconsidered. It would

be appropriate if these

two cases are examined

by SIT so as to fix

responsibility on the

investigating

/prosecuting officials

and suitable directions

can thereafter be issued

by this Hon'ble Court to

take action, either

under the Indian Penal

Code (depending on

whether it reveals

offences under IPC) or

departmental action for

misconduct. The acts

of the investigating/

prosecuting agencies

may attract Section

201 IPC.

398

X. The allegation is that

the investigations were

partial in nature and

there was

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Page: 442

prejudice against the riot

victims.

The finding of the SIT is

that Supplementary

chargesheets have been

filed in Gulberg, Society

case and Naroda Patiya

case, but that by itself

cannot be a reason to

hold that investigations

were conducted in a

partial manner.

The grievance of the

Petitioner may not

survive after the SIT

has conducted

fresh investigations,

but it would be unjust

to spare those people

who conducted,

partisan or negligent

investigation. Hence,

this issue needs to be

addressed. The role of

the officials in the

Crime Branch,

especially DCP,

Vanzara and ACP

Chudasama needs to be

inquired into especially

in the light of the

statement of Shri Rahul

Sharma, DCP, Control

Room, Ahmedabad. To

that extent the finding

of SIT is not

acceptable.

399

XV. The allegation is that

pro VHP lawyers were

appointed as Public

Prosecutors, which had

adverse effect on the trial

of the riot accused.

The finding of the SIT is

that though the political

affiliation of the advocate

weighed with the

government in their

appointment as Public

Prosecutors, there is not

specific allegation in

showing favour by them

to any of the accused

persons involved in the

riots, either at the time of

grant of bail or during the

trial.

The issue may not

though survive because

of the intervention by

this Hon'ble Court

whereby Public

Prosecutors have been

appointed in an

independent manner.

However, this may be

required to be looked

into further in light of

the subsequent letter of

Ms. Teesta Setalvad.

XXI & XXII. These

allegations relate to

inaction against senior

police officers as they did

not carry out proper

investigation of riot

related cases, specially

the Bilkisbano rape case.

The SIT has stated that

the allegations were

vague and general and

there was nothing

against any specific

officer. It is further stated

that the CBI had not

recommended any action

against Shri Jadeja, SP

Dahod in the Bilkisbano

case.

In so far as Shri Jadeja

is concerned, the

documents relating to

Bilkisbano case need

to be scrutinized by

SIT.

The basis on which the

CBI has concluded that

no departmental action

is required to be taken

against Mr. Jadeja has

to be examined before

any conclusion be

drawn.

400

XXIII. The allegation is

that the CD relating to

telephonic calls of BJP

leaders and police

officers were not looked

into by the Investigating

Officers Gulberg

Society and Naroda

Patiya.

The SIT has found that

Shri Tarun Barot, the

investigating Officer of

the case and Shri G.L.

Singhal, the ACP, Crime

Branch intentionally did

not examine the cell

phone records, though it

was available to them,

and therefore, major

penalty departmental

proceedings should be

initiated against them.

The Govt. of Gujarat

may be directed to take

departmental actions

against these two

officers immediately

within a time bound

manner.

401

XXV: The allegation is

that the police at Gulberg

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Page: 443

Society and Naroda

Patiya did not take action

and acted as mute

spectators to the acts of

lawlessness. Real

culprits were not

arrested and no

preventive action was

taken.

The SIT has found this

allegation to be incorrect.

1. Shri M.K. Tandon,

the then Jt. CP, Sector-

II said that he reached

Gulberg Society 4.00

pm and ordered CISF

firing. It is not clear

why CISF could not

reach earlier, though it

had been sent at 1:45

pm. It is not clear why

the other officers,

namely G.D. Solanki,

Dy.SP etc. could not

reach Gulberg Society

on time. It appears that

nothing was done by

the police personnel

present at Gulberg

Society and Naroda

Patiya to dispel the

gathering mob. It would

appear that the mob

was being permitted to

gather at these two

places. Hence, there is

substance in the

allegations of police

inaction.

2. It is not clear what

action was taken by

Shri M.T. Rana, the

then ACP. 'G' division,

who was present at

Naroda Patiya to

prevent the mishap

from happening. This

402

aspect also needs to be

looked into.

SPECIFIC RECOMMENDATIONS FOR SIT:-

(i) Shri M. K. Tandon and Shri P.B. Gondia be prosecuted u/s 304A

IPC

(ii) The SIT may examine the role of the Investigating Agency in

the Bilkisbano rape case and make recommendations to this Hon'ble

Court, whether it reveals commission of any criminal offence or

misconduct.

(iii) The SIT may be directed to look into the role of the Crime

Branch officers, namely DCP Vanzara and ACP Chudasama as to their

role in the investigation of Gulberg Society and Naroda Patiya cases.

(iv) The SIT may examine the role of the prosecuting agency in Best

Bakery case and recommend suitable action against those who are

responsible.

(v) SIT may look into the role of police officials in the Gulberg

Society and Naroda Patiya cases (apart from those who are already

facing charges).

SPECIFIC RECOMMENDATIONS IN RELATION TO GOVERNMENT OF

GUJARAT.

(i) Departmental action, as suggested by the SIT, be taken against

K. Kumaraswamy, the then Jt. CP Baroda City and Ramjibhai Pargi,

former ACP.

(ii) As recommended by the SIT, departmental action be taken against

Shri Tarun Barot, Inspector and Shri G.S. Singhal, ACP Crime Branch for

faulty investigation of the riots cases.

403

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Page: 444

The aforesaid recommendations of the Ld. Amicus Curiae would

show that he concurred with the findings of SIT with regard to Allegations

No.lX & XXIII. Further, as regards Allegation No. XV, Ld. Amicus Curiae

has opined that the issue may not survive because of the intervention of

the Hon'ble Supreme Court, whereby Public Prosecutors have been

appointed in an independent manner.

The recommendations made by Ld Amicus Curiae in Chart - 'B'

have been examined and the comments on the same 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/s 304A IPC.

Result of further investigation:

Ld. Amicus Curiae has recommended that Shri M.K.Tandon (the

then Joint Commissioner of Police, Ahmedabad city) and Shri P.B

Gondia (the then Deputy Commissioner of Police, Ahmadabad City)

should be prosecuted u/s 304-A IPC. Role and evidence available on

record [after further investigation of three cases (Meghaninagar

Police Station I.CR No.67/2002, Naroda Police Station I.CR Nos.

100/2002 & 98/2002)] against Shri Tandon and Shri Gondia was

analysed and it was found that the same is not adequate to launch

prosecution of the above two officers. For understanding the issue in

hand, details of this cases/evidence are given below:

Brief facts :

(I) Meghaninagar P. Stn. I. CR No.67/2002 (Gulberg Society):

A call for Gujarat Bandh on 28.02.2002 was given by VHP, which

was supported by ruling-BJP, to protest against the killing of Karsevaks

at Godhra Railway Station on 27.02.2002. An unlawful mob of around

20,000 Hindus, armed with deadly weapons attacked shops and houses

of Muslims residing in Gulberg Society on 28.02.2002 morning

404

/afternoon resulting in death of 39 persons and injuries to 15 others. 31

Muslim individuals went missing, Shri Ahesan Jaffri, ex-MP fired in self

defence from his private licensed weapon resulting in injuries to 15

persons in the mob, out of which one died later. Police fired 124 rounds

to disperse the mob resulting in death of 4 rioters. On the complaint of

Police Inspector of Meghaninagar Police Station Shri K. G. Erda, the above

case was registered under different sections of IPC relating to unlawful

assembly, murder, Bombay Police Act and Arms Act against 11 named

individuals and unknown others. After investigation, 11 charge sheets

were filed against 71 individuals while 2 persons were arraigned as

accused by the trial Court u/s 319 Cr.PC. Recording of prosecution

evidence in that Trial Court is over and arguments are continuing.

(II) Naroda Police Station I. CR No. 98/2002 (Naroda Gaam Case) :

During the above-mentioned Bandh on 28.02.2002, an unlawful

mob of 5,000 to 7,000 rioters gathered around Naroda Gaam area around

12:00 hours and attacked the houses, shops and vehicles with the

inflammable materials killing 8 Muslim individuals; 3 victims went

missing. On the complaint of ASI Vala of Naroda Police Station, a case

was registered under different sections of IPC and Bombay Police Act.

Though only 5 persons were named in the FIR, 86 persons were charge-

sheeted in I0 different charge-sheets filed over the years. Presently the

trial is going-on.

(IIl) Naroda Police Station I. CR No. 100/2002 (Naroda Patiya):

In yet another major incident on the above mentioned Bandh day,

an unlawful mob of 15,000 to 17,000 attacked the houses of Muslims

situated in Hussein-ni Chali, Naroda Patiya and nearby areas between

11:00 hours and 20:00 hours killing 58 Muslim individuals. 15 rounds

were fired by the police to control the mob. Later, it was found that total

85 persons were killed including 2 in police firing. On the complaint of

PSI V. K. Solanki of Naroda Police station, the above case was registered

under different sections of IPC and Bombay

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Page: 445

Police Act against 5 named individuals and unknown others. 70 persons

were charge-sheeted in 8 charge-sheets. The case is presently under trail.

405

Facts/Sequence of events establish during investigation:

Enquiry by Shri A. K. Malhotra, Member, SIT / earlier investigation

/ 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 comprises 3 Zones

(Zone-IV, V & VI) and covered 15 police stations including Meghaninagar

and Naroda. Certain police stations in his jurisdiction namely, Dariapur,

Gomtipur; Rakhial and Bapunagar were traditionally communally

sensitive while Meghaninagar and Naroda did not have history of serious

communal riots though these also had a few Muslim pockets. Each Zone

is headed by a Deputy Commissioner of Police (DCP). Shri P. B. Gondia

was posted as DCP Zone-IV, who had jurisdiction over Meghaninagar,

Naroda Dariapur, Shahibaug and Sardarnagar Police stations.

(B) Though Shri Tandon had received information regarding Godhra

train incident as well as the proposed VHP Bandh on 28.02.2002 on the

morning of 27.02.2002 itself, he did not held any formal meeting with

DCsP/SHOs or chalked out any plan to handle the law and order situation

on the coming day. In fact, no major preventive police action was taken.

Similarly, no meeting of SHOs/chalking out of law and order plan was

done by Shri P. B.Gondia, DCP.

Bandh day, which was distributed among 3 DCsP (1 Platoon each). During

his movements on 28.02.2002. Shri Tandon was having a Striking Force

comprising 2 Police Sub-Inspectors and a few armed men in 2 vehicles.

(D) In the morning of 28.02.2002, Shri M. K. Tandon left for Dariapur

P.S. as it was considered communally very sensitive. On the way around

1035 hours, he received a wireless message from Assistant Commissioner

of Police, 'G' division requesting Police Control Room to send more vehicles

to Naroda Patiya area. In view of this message, he changed his route

towards Naroda Patiya. En route, he inquired about location of Sr. PI of

Meghaninagar P.S. and after having learnt that he had gone to Gulberg

Society due to some problem there, he proceeded towards the same and

reached there around 1130 hours.

In the meantime, Shri P. B. Gondia, DCP received information

regarding trouble at Naroda Patiya/ Naroda Gaam and reached Naroda

Patiya at about 1100 hours. Inspector Shri Mysorewala of Naroda P.S,

406

and ACP Shri M. T. Rana were already there to deal with mob which had

gathered in large numbers.

(E) Shri M K. Tandon found a mob of around 1,000 Hindu rioters

around Gulberg Society and ordered for bursting of tear gas shells and

lathi charge by his Striking Force. Official records suggest that six tear

gas shells were fired by the Striking Force attached to Shri Tandon at that

time. As a result, the mob got dispersed in the lanes/by-lanes near

Gulberg Society. It is believed that Shri Tandon also met late Shri Ahesan

Jafri, ex-MP and certain other residents of Gulberg Society who were

assured of strengthening the police presence there. Though witnesses

claim that Late Ahesan Jafri had met the Commissioner, investigation has

revealed that Shri P.C. Pande, the then CP, Ahmedabad City had not

visited the Gulberg Society at that time. So most likely, Late Jafri had met

Shri M. K. Tandon, the then Jt. CP, Sector-Il. However, Shri Tandon

denies this fact. Around 1150 hours Shri M. K. Tandon left for Naroda

Patiya.

(F) On reaching Naroda Patiya area around 1220 hours Shri Tandon

found the situation to be very explosive and requested Commissioner of

Police for imposition of curfew in Naroda Patiya. The Commissioner of

Police, Ahmedabad City agreed with the request made by Shri Tandon and

curfew was imposed at 1230 hrs.

(G) Significantly, Shri P. B. Gondia received a massage at 1235 hrs from

Sr. PI, Meghaninagar about the grave situation at Gulberg Society where

a mob of around 5,000 had reportedly gathered.

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Page: 446

(H) Around 1240 hours, Shri M. K. Tandon left Naroda Patiya for

Dariapur Police Station area ostensibly on the ground that it was

communally hyper sensitive. Incidentally, Shri Tandon did not take any

concrete action, at Naroda Patiya except requesting for imposition of

curfew. As per call detail records he was in Bapunagar-Rakhial area

between 1241 hrs and 1325 hrs. Further, he remained in Dariapur and

Kalupur Police Stations area between 1351 hours and 1542 hours.

(I) At about 1220 hrs and 1230 hrs, Sr. PI Erda of Meghaninagar P.S.

sent alarming messages to Police Control Room about the critical

situation at Gulberg Society requesting for reinforcements.

407

(J) Around 1405 hrs, Shri Tandon sent a message to Control Room to

send additional force for shifting Late Ahesan Jafri and others who had

been surrounded by a mob in the Gulberg Society. Shri Tandon did not

bother to inquire about the latest position till 1545 hrs when he asked

Control Room to check-up as to whether there was any incident relating

to loss of life in Gulberg Society. By that time, the Society had been set

ablaze and lot of lives including that of 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 critical situation

there. He also ordered police firing in Naroda Patiya area, which resulted

in death of 1 Hindu and 1 Muslim miscreant. As per police records, during

this period, 48 rounds (22 rounds of 9 mm + 26 rounds of 303) as well as

95 tear gas shells were fired by the Striking Force of Shri P.B. Gondia. He

left Naroda Patiya at 14:20 hrs ostensibly to go to Pithadiya Bambha

(Dariapur P.S.) in view of some trouble there. (However, in a signed

statement made earlier in point of time to Shri A.K Malhotra, Member, SIT

during inquiry, he has claimed that he had left for Hotel Moti Manor

owned by a Muslim and Rosary School in Shahibaug area, which were

being set on fire).

(L) On way to Pithadiya Bambha, Shri P. B. Gondia received

instructions from CP Ahmedabad City at 1516 hrs to go to Gulberg Society

and he reached there sometime around 1600 hrs. Shri M.K. Tandon

arrived at Gulberg Society thereafter and arranged for prisoner vans,

ambulances etc. for safe shifting of 150 survivors of 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. Mysorevala from Naroda Patiya

area, a major incident of rioting took place between 1800 hrs and 1830

hrs there in which 85 persons were killed and 13 persons went missing.

Five VHP activists were named as accused in the FIR.

(N) Shri M. K. Tandon was in touch with certain accused persons of

Naroda Patiyal/Naroda Gaam cases. He had received 2 telephone calls on

01.03.2002 at 1137 hrs for 250 seconds and 1256 hrs for 161 seconds

from accused in Naroda Patiya case Jaydeep Patel of VHP and 2 calls on

01.03.2002 at 1458 hrs for 32 seconds and 1904 hrs for 61 seconds from

accused Dr. Mayaben Kolnani.

(O) Shri P. B. Gondia was also in touch with some accused persons of

Naroda Patiya/Naroda Gaam cases. He had received 3 calls on his Mobile

phone from Dr. Mayaben Kolnani on 28.02.2002, 01.03.2002 and

408

02.03.2002 at 1039 hrs, 1339 hrs and 1249 hrs respectively. He had also

received 3 calls on 28.02.2002 at 1140 hrs, 1152 hrs and 1220 hrs, 2

calls on 01.03.2002 at 1004 hrs and 1135 hrs and 2 calls on 02.03.2002

at 1156 hrs and 1848 hrs from accused Shri Jaydeep Patel.

Role of Shri M.K. Tondon:

During further investigation efforts were made to ascertain whether

Shri M.K. Tandon could be part of the conspiracy of these offences.

However, no evidence has come on record to establish that he was a party

to criminal conspiracy hatched by the rioters. Normally conspiracy is

hatched secretly and only circumstantial evidence is available to establish

the same. In case of Shri Tandon, certain actions on his part suggest his

bonafide intentions to control the riots. Initially he visited Gulberg society

and lobbed tear gas shells and dispersed the mob. Subsequently he

proceeded to Naroda Patiya and on his advice curfew was imposed in

Naroda

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Page: 447

Patiya area by the Commissioner of Police, Further, from Naroda Patiya

area, he went to Dariapur which was communally very sensitive.

As far as telephonic contact with accused persons namely, Dr.

Mayaben Kodnani and Shri Jaydeep Patel is concerned, it has come to

light that Dr. Kodnani was MLA from Naroda constituency and Shri

Jaydeep Patel was Joint General Secretary, VHP, Ahmedabad Unit. These

individuals were interrogated but they expressed inability to recollect the

conversations and claimed that the same must be about the prevailing

law and order situation. As regards the telephone calls made a day after

the offence, from certain local leaders who were later prosecuted in the

offence by itself does not make an individual a part of the conspiracy

unless the contents of the conversation are known. In view of this. it

would not be appropriate to conclude just on the basis of telephone calls

that he was part of the conspiracy.

Investigation has revealed that Shri Tandon got the mob dispersed

outside Gulberg Society around 1130 hrs. However, he did not take any

step to strengthen the hands of Shri K.G. Erda, Sr. Pl by providing him

409

some additional force as requested by the latter despite the fact that he

had assured late Ahesan Jafri and others.

Investigation has revealed that 1 platoon of SRP was allotted to DCP

Zone-IV and that had reported at Naroda Patiya at about 1245 hrs and

was deployed there. As cremation of 12 Karsevaks who had died on

previous day in Godhra train incident was also to take place in

Hatkeshwar cremation ground, which was also in the jurisdiction of Shri

M.K. Tandon, he had some justification to leave Naroda Patiya for

communally hyper sensitive areas in his jurisdiction. Furthermore, DCP

Shri P. B. Gondia, along with ACP M T Rana, were already there at Naroda

Patiya for handling the situation.

Investigation revealed that Dariapur was traditionally

communally hyper sensitive. On the day between 1215 hrs and 2100

hrs, one person had been killed in police firing and one Masjid was

heady damaged, besides setting of Lunsawad police post on fire by

miscreants. However, records of that period do not reveal any action

taken by Shri M. K. Tandon at any of the locations in Dariapur.

Further, there is no mention of any firing done at any of the places

under his orders. The objective assessment of the situation reveals

that Shri Tandon did not appreciate the circumstances

professionally and acted in a negligent manner by not taking any

appropriate action about the grave situation at Gulberg

Society/Naroda Patiya area. It would not be out if place to mention

here that Shri M.K. Tandon was very well aware about the situation

at Gulberg Society in as much as he had sent a message to the Police

Control Room at 1405 hrs on 28.02.2002, that late Ahesan Jafri and

others had been surrounded by a mob and were required to be shifted

immediately. Despite the fact that he was well aware of the

inflammatory situation at Gulberg society, yet he chose not to go

there. However, it is pitiable to note that he sent a message at 1545

hrs asking there was any loss of life at Gulberg society and if so, a

detailed report should be given to him. As Joint Commissioner of

Police, he was expected to monitor and keep a track of developments

throughout his jurisdiction especially when he had left the locations

at Gulberg Society and Naroda Patiya which were by no means

peaceful at that time. He left the locations at the mercy of concerned

PI (in the case of 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.

410

Role of Shri P. B. Gondia

Investigation revealed that Shri P. B. Gondia had received 3 calls on

his Mobile phone from Dr. Mayabern Kodnani on 28.02.2002, 01.03.2002

and 02.03.2002 at 1039 hrs, 1339 hrs and 1249 hrs respectively. He had

also received 3 calls on 28.02.2002 at 1140 hrs, 11.52 hrs and 1220 hrs,

2 cal!s on 01.03.2002 at 1004 hrs and 1135 hrs and 2 calls on 02.03.2002

at 1156 hirs and 1848 hrs, from accused Shri Jaydeep Patel. Dr. Mayaben

Kodnani, Shri Jaydeep Patel and Shri P. B. Gondia have taken the plea

that they were unable to recall the exact contents of these phone calls and

claimed that these must be in connection with law and order situation.

Notably, all these calls were incoming as far as Shri P. B. Gondia is

concerned. As Dr. Kodnani was the local MLA and Shri Jaydeep Patel, a

local leader, the reason given by them is probable. Shri Gondia claimed

that 7 rioters had been killed as a result of police firing ordered by him.

Police records show that 110 rounds of bullets and 183 teargas shells

were fired by the police personnel under him on 28.02.2002 though it did

not show any firing resorted to personally. Furthermore, from Naroda

Patiya he went towards Pithadiya Bambha from where some incidents of

rioting

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Page: 448

had been reported. In any case, he was instrumental in controlling a riot

situation at Moti Manor Hotel and Rosary School on the way.

Investigation has further revealed that he had left Naroda Patiya at

1420 hrs despite the fact that a huge of mob of Hindu and Muslim rioters

had gathered there while the curfew was in force. His leaving the location

for Pithaliya Bambha was totally unjustified, especially when there was

no information of any situation being graver there than at Naroda Patiya.

In case, Shri Gondia realized that he was in a position to leave the

location, then he should have gone to Gulberg Society and not to Pithaliya

Bambha. Shri Tandon has stated that on receipt of a message from Shri

K.G. Erda at 1445 hrs that the Gulberg society had been surrounded by

a mob and was about the set fire to the same, he had directed Shri PB.

Gondia to reach Gulberg society immediately. Though this fact has been

mentioned by Shri M K. Tandon in his affidavit filed before the Nanavati

Commission in July, 2002, yet he has not been able to explain as to how

this direction was given to Shri Gondia as there is no Control Room

411

message or mobile phone call to Shri Gondia at this point of time.

However, Shri Gondia has denied having received any such instructions

from Shri Tandon.

As indicated earlier, sufficient evidence has not come on record

regarding police involvement of these two police officers in the

conspiracy/abetment of the offences. However, they demonstrated

profound lack of judgment that seriously undermined their credibility and

damaged their effectiveness in dealing with the situations. All the three

major incidents took place in area under their control and they left the

locations for handling by the junior officers. They did not take any

preventive action on 27.02.2002, while any police officer worth the name

could imagine the seriousness of the situation.

Ld. Amicus Curiae has recommended prosecution of aforesaid two

officers u/s 304A IPC. In view of this recommendation, available evidence

was analysed to assess whether the inaction on the part of these two

officers, was of the nature of Criminal negligence or professional

misconduct.

The basic requirements for prosecution under the above section are

that the acts (including omission) must be rash or negligent. Here the

issue is whether the acts of Shri M.K.Tandon and Shri P.B. Gondia would

amount to criminal negligence justifying their prosecution. Their actions

need to be seen and analysed in the proper perspective and situation

prevalent on that day. The following actions would analyse the role played

by Shri M.K. Tandon.

a. In the morning of 28.02.2002 he had left for Dariyapur Police

Station (communally hyper-sensitive). On the way at 1035 hrs, he had

heard a wireless message of ACP 'G' Division requesting control to send

more vehicles to Naroda Patiya. In view of this message, he proceeded

towards Naroda Patiya. En-route he asked location of Senior Police

Inspector of Meghaninagar Police Station and after having learnt that he

was at Gulberg Society, he proceeded there and reached Gulberg Society

at about 1130 hrs. At that time, a mob of around 1000 Hindu rioters had

gathered there. Shri Tandon had ordered bursting of tear gas shells and

lathi charge through his striking force. As a result of this action, the mob

was dispersed in the lanes and by-lanes near Gulberg Society.

b. Around 1200 hrs. Shri Tandon left for Naroda Patiya. At 1220 hrs

he had made a phone call to Commissioner of Police and requested for

imposition of curfew in Naroda Patiya. Curfew was imposed in Naroda

Patiya area at 1230 hrs.

412

c. He had informed Commissioner of Police, Ahmedabad City

regarding the situation at Naroda Pariya through a phone call at 1237

hrs. He also informed CP regarding the funeral procession of Kar-sevaks.

The Commissioner of Police instructed him to go to Dariapur, as the

Dariapur Police Station is communally hypersensitive. As ACP of

Dariapur was on leave and presence of senior officer was required there,

he had left for Dariapur. Therefore, his leaving the spot for a known

communally hyper-sensitive place does not amount to criminal negligence

though it could be an error of judgment/ poor appreciation of the

situation.

d. During the investigation of offence at Naroda Patiya, it has been

established that the incident took place after 1800 hrs. When Shri Tandon

left Naroda Patiya around 1240 hrs, then Senior Police Inspector of

Naroda Police Station along with his force, ACO‘G' Division along with his

force, DCP Zone IV and his striking force and one platoon of State Reserve

Police were

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Page: 449

present there. Therefore, it was not possible to envisage that such an

incident might take place at Naroda Patiya.

e. Shri M.K Tandon has stated that first wireless message regarding

the situation at Gulberg, Society was received at 1414 hrs on his wireless

handset. He has further stated that he had not received the messages

passed by Senior Police Inspector of Megharinagar P.S. at 1225 hrs and

1238 hrs as the situation was very noisy in Naroda Patiya area and he

was using public address system of his vehicle for declaration of curfew

and ordering the mob to get dispersed.

f. Regarding the situation at Gulberg Society, Shri M.K. Tandon has

stated that he was informed by an unknown Muslim individual that late

Ahesan Jafri, Ex-MP and other Muslims of Gulberg Society need to be

shifted immediately. However, his enquiries with Control Room revealed

that additional force of two DySsP, one inspector and one section of CISF

had been sent to Gulberg Society, as per orders of Commissioner of Police.

g. Shri M.K. Tandon has claimed that he had called Commissioner of

Police on his mobile phone at 1425 hrs and discussed the situation. As

per his statement, taking the communal sensitivity of Dariapur in

413

consideration, leaving Dariapur without any senior police officer could

have lead to drastic consequences as ACP was on leave and DCP was busy

in handling the law & order situation elsewhere.

Following actions by Shri P.B.Gondia are relevant to decide as

to whether he was liable for criminal negligence:-

a. As per call details of mobile phone of Shri P.B.Gondia for

28.02.2002, he was in Dariapur Police Station area (which is communally

hypersensitive) since 0830 hrs. Further, on receipt of an information

regarding trouble at Naroda Patiya/ Narode Gaam, he had reached there

around 1100 hrs. He was allotted one platoon of State Reserve Police,

which he had deployed at Naroda Patiya and Naroda Gaam. Curfew was

imposed at Naroda Patiya at 1230 hrs.

b. He had ordered police firing at Naroda Patiya which had resulted in

death of one Hindu and one Muslim rioter. Shri P.B. Gondia had left

Naroda Patiya at 1420 hrs on receiving message regarding trouble at

Pitadiya Bamba in Dariapur. Pitadiya Bamba had a history of serious

communal violence in the past.

c. At 1516 hrs, he had received instructions from Commissioner of

Police, Ahmedabad City to go to Gulberg Society where he reached around

1600 hrs and took measures to disperse the mob and rescue the

survivors.

d. During the investigation of the case, it has been established that the

incident at Naroda Patiya, in which major loss of lives took place occurred

after 1800 hrs, i.e., approximately four hours after Shri Gondia had left

the spot. In any case, the killings had taken place at a corner location in

the lane which was away from the main road where police personnel were

stationed and handling the mobs belonging to the two communities. In

view of this, there does not appear to be any direct nexus of these killings

with Shri P.B. Gondia, who had left the spot at about 1420 hrs.

e. On 28.02.2002, he had ordered firing of 110 rounds of bullets and

183 tear gas shells to disperse the rioters at different locations which lead

to killing of 7 rioters (including 6 Hindus).

Section 304A means an act which is the immediate cause of death

and not an act or omission which can be said to be a remote cause of

death. It is necessary to show an immediate nexus between the wrongful

act of an accused and the injuries received by another. In order to

constitute the offence, the death should have been the direct result of a

rash and negligent act that must be proximate cause without intervention

414

of any third factor. Furthermore, in case of criminal negligence, it must

be gross and not which is merely an error of judgment or arises because

of defect of intelligence.

Therefore, considering all the circumstances, evidence on

record and the defence available with the suspect police officers

namely Shri M.K.Tandon and Shri P.S. Gondia, it may not be viable

to prosecute them for the offence u/s 304-A IPC as proposed by Ld.

Amicus Curiae. It is worth mentioning here that inspite of best

efforts, no additional evidence (other than already

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Page: 450

available) which could help in fixing, criminal liability u/s 304A IPC

of these two individuals could be brought on record during further

investigation However, the conduct of 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 of

senior police officers.

Observation made by Ld. Amicus Curiae:

The SIT may examine the role of the Investigating Agency in the

Bilkis Bano rape case and make recommendations to this Hon'ble

Court, whether it reveals commission of any criminal offence or

misconduct.

Result of Further Investigation:

The Bilkis Bano rape case has investigated by the CBl under

the orders of Hon'ble Supreme Court of India. The case has ended it

conviction of 12 accused persons and acquittal of 8 accused persons.

The appeals against conviction are now pending in the High Court.

CBI had already recommended Regular Departmental Action for

major penalty against five police officers for the lapses on their part.

Observation made by Ld. Amicus Curiae:

415

The SIT may be directed to look into the role of the Crime Branch

officers, namely DCP Vanzara and ACP Chudasama as to their role

in the investigation of Gulberg Society and Naroda Patiya cases.

Result of Further Investigation:

Departmental action has been recommended against Shri 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 judicial custody in "Sohrabuddin fake

encounter case" since 2007 has been re-examined with a view to

ascertain the lapses, on his part. However, no fresh material has

come on record to establish the same.

Observation made by Ld. Amicus Curiae:

The SIT may examine the role of the prosecuting agency in Best

Bakery case and recommend suitable action against those who are

responsible.

Result of Further Investigation:

The Best Bakery case was investigated by the Gujarat Police and

the same ended in acquittal of all the accused persons in a trial

conducted at Baroda in Gujarat. However, subsequently the case was

remanded by the Hon'ble Supreme Court of India for a retrial under

the jurisdiction of Bombay High Court and the same ended in the

conviction of 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 Gulberg Society

and Naroda Patiya cases (apart from those who are already facing

charges).

Result of Further Investigation:

416

Govt of Gujarat would be requested to initiate appropriate action

against the concerned officials for various administrative lapses on their

part.

SPECIFIC RECOMMENDATIONS IN RELATION TO GOVT. OF

GUJARAT:

Observations made by Ld. Amicus Curiae:

Departmental action, as suggested by the SIT, be taken against K.

Kumaraswamy, the then Jt.CP, Baroda City and Ramjibhai Pargi,

former ACP.

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Page: 451

As recommended by the SIT, departmental action be taken against

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 by the Ld.

Amicus Curiae, have been agreed upon and further necessary action

in the matter is being recommended to the 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’

ALLEGATIONS

FINDING OF SIT

OBSERVATIONS

MADE BY AMICUS

CURIAE

II. Alleged decision of

the CM to transport

dead bodies from

Godhra to Ahmedabad

with a view to parade

them

The allegation is not

established.

The findings of the SIT

appear to be justified

417

III. It is alleged by Shri

R.B. Sreekumar that

there were a number

of verbal instructions

given by Chief

Minister, which were

illegal.

The SIT had stated

that there is doubt

about the genuineness

of the entries in view of

the fact that this

for the first time in

2005 {after the

supersession of Shri

Sreekumar by the

Govt.} and there is

further no

corroboration of the

statements made by

Shri R.B. Sreekumar

from any other source

It may not be

possible to prove the

so called illegal

instructions in

absence of any other

material, except the

statement6s of Shri

R.B. Sreekumar

himself. Hence,

though the finding of

the SIT be accepted,

it may not be

appropriate to say

that the register is

motivated.

VI. The allegation is

regarding transfer of 6

police officers by

Hon’ble Chief Minister

during the thick of

riots to facilitate

placement of pliable

officers.

The finding of the SIT

is that this allegation

could not be proved.

We may accept SIT’s

recommendations.

There are 3 instances

which are far too

remote to lead to any

conclusion.

VIII. The allegation is

that no follow up

action was taken up

by the Gujarat Govt.

on the reports sent by

Shri R.B. Sreekumar

The finding of the

State Govt. relating to

the concerned subject

had not been

produced, and

therefore, it is not

clear how the Govt.

deal with the letters of

Shri R.B. Sreekumar.

The SIT further

observes that from the

evidence of witnesses,

it is incorrect to say

that the letter of Shri

R.B. Sreekumar were

The findings of the

SIT may be correct.

The letters of Shri

R.B. Sreekumar were

written after the

riots had got over.

Secondly, the

contents of these

letters appear to be

of general nature.

The subsequent

developments have

supported the

findings of the SIT

that some action was

taken by the Govt.

418

not acted upon by the

Govt.

Hence, we may

accept SIT’s

recommendation.

XIII. The allegation is

that Shri Narendra

Modi did not give a

direction declaring as

Bandh called by VHP

on 28-02-2002 illegal

The SIT has found that

the Bandh was not

declared illegal by the

Govt. of Gujarat and

hence the allegation is

proved

This issue is not

having very material

bearing. Nothing

would turn upon the

fact whether the

Bandh was declared

illegal or not.

XV. The allegation is

that there was undue

delay in deployment of

Army

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Page: 452

The SIT has come to a

conclusion that there

was no undue delay in

deployment

of the Army

The factual records

are the matter of

investigation and if

the records are

correct, than

the SIT finding may

also be correct.

XVI. The allegation is

that police officials

were not transferred

until the arrival of Shri

KPS Gill

The SIT has found this

allegation is not

correct.

The finding of the

SIT may be accepted.

XVII. The allegation is

that no action was

taken against media or

publishing

communally inciting

reports

The SIT has found that

the allegation is true

Action should have

been taken against

the Media, but due to

lapse of more than 8

years, it is not

advisable to pursue

this matter any

further

XVIII. This allegation

relates to misleading

reports submitted by

the State Home

Department regarding

normalcy in the State

so as to persuade the

The SIT concluded

that the allegation is

not conclusively

established in view of

the fact that the

elections were

subsequently held

within 3-4 months in

This issue may not

survive any further

and it would not

serve any purpose to

examine this issue in

detail. Hence, it is

recommended that

419

Election Commission

to hold early elections.

December, 2002 and

passed off peacefully.

this issue be

dropped.

XIX & XX. That Shri

G.C. Murmu, Home

Secretary was deputed

to tutor the witnesses

who were to depose

before Nanavati

Commission

The SIT has found this

allegation is not

established as the

version given by Shri

R.B. Sreekumar is

motivated and cannot

be relied upon

The allegation is

found not proved by

SIT, which

recommendation be

accepted. It may not

be justified to say

that the ver5sion of

Shri Sreekumar is

motivated.

XXIV. Allegation is

that the Gujarat Govt.

did not provide

conducive atmosphere

for rehabilitation of

riot victims.

The SIT has found this

allegation is not

correct as it is believes

that the Govt. did

everything for

rehabilitation

The conclusion may

be accepted

XXVI. This allegation

relates to non-

preparation of

minutes of meeting.

SIT has found that in

Gujarat Govt. no

minutes of meeting are

prepared in case of law

& order review meets.

Since the minutes of

the meeting have not

been prepared,

nothing would come

out in further

investigation. In any

event, the minutes of

the meeting would

never be prepared to

implicate any

Minister/official

directly or indirectly.

Therefore, this issue

can be closed.

XXXVII. This

allegation relates to

not taking action

against officers for

filing incorrect

affidavits before the

Nanavati Commission

SIT has concluded

that this matter has to

be dealt with by the

Nanavati Commission

which has still to

submit its report.

The view taken by

the SIT appears to be

correct.

XXVIII. It is alleged

that the review of post

trial cases was slack

and the officers acted

SIT has held that this

allegation is not

established.

The

recommendations of

the SIT be accepted.

420

according to the

political interests of

BJP and the CM.

XXIX. The allegation

is regarding nepotism

in posting, transfer

etc.

SIT has found that

this allegation is very

vague and general and

it is not possible to

conduct any inquiry in

the said allegation.

The finding of the

SIT seems to be

correct and may be

accepted.

XXX. That only

Muslims were victims

of riots and police

firing due to

collaboration between

rioters and the

administration.

SIT has found that

this allegation is not

substantiated.

This aspect may get

covered if the

request for further

investigation is

accepted by this

Hon’ble Court.

XXXI. It is alleged that

there

-----------------------------

Page: 453

was a secret meeting

in Lunawada where 50

top people allegedly

met and made out a

plan for rioting and

use of violence.

The SIT has examined

this

issue in detail and

found that the

information was a

figment of imagination

of some interested

elements, based on

rumors and therefore,

not established.

The view taken by

the SIT be

accepted.

XXXVII. It is alleged

that on 28-02-2002,

5000 Bajrang Dal

activists met at village

Borvai in which attack

on minorities was

planned.

SIT has conducted

investigation in detail

and found that this is

a cooked up story and

the information given

by Shri Mahboob

Rasool was not

correct.

The view taken by

the SIT may be

accepted.

It may thus be seen that the Ld. Amicus Curiae has agreed with

the fundings of SIT in respect of Allegations No. II, III, VI, VIII, XIV,

421

XVI, XIX, XX, XXIV, XXVII, XXVIII, XXIX, XXXI & XXXII and has

recommended to the Hon'ble Supreme Court of India that the

recommendation of SIT may be accepted in respect of these

allegations. Further, as regards Allegations No. XIII, XVII, XVIII &

XXVI the Ld. Amicus Curiae is of the view that the issued were not

very material and, therefore, recommended the same to be dropped.

However, as regard the Allegation No. XXX, the Ld Amicus Curiae

opined that the allegation would get covered in the case the request

for further investigation was accepted by the Hon'ble Supreme Court

of India. The Ld. Amicus Curiae has also opined that the further

investigation conducted by the SIT u/s 173(8) Cr.PC about the

involvement of Shri Gordhan Zadafia has revealed that there is lack

of evidence to suggest his involvement in the riots and that this

findings of the SIT appears to be acceptable.

As ordered by the Hon'ble Supreme Court of India, the matter

was listed for hearing on 05.05.2011, when the following order was

passed:-

“Pursuant to our order dated 15

March, 2011, the

Chairman, Special Investigation Team (SIT) has filed

report on the further investigations carried out by his

team along with his remarks thereon. Statements

ofwitnesses as also, the documents have been placed

on record, in separate volumes. Let a copy of all these

documents along with the report of the Chairman be

supplied to Mrs. Raju Ramchandran, the Learned

Amicus Curiae.

The learned Amicus Curie shall examine the report,

analyse and have his own independent assessment of

the statements of the witnesses recorded by the SIT

and submit his comments thereon. It will be open to

the learned Amicus Curiae to interact with any of the

witnesses, who have been examined by the SIT,

including the police officers. as he may deem fit.

If the learned Amicus Curie forms an opinion that on

the basis of the material on record, any offence is

made out against any person, he shall mention the

same in his report.

List on 28

July, 2011 at 3:00 p.m.”

422

Pursuant to the aforesaid order passed by the Hon'ble Supreme

court of India the Ld. Amicus Curie submitted his report dated

25.07.2011. In his report, Ld. Amicus Curiae agreed with the findings

of the SIT on the following issues and opined that the same are

acceptable:-

I. That though he had observed in his note dated 20.01 .2011 that

late Haren Pandya, the then MoS for Revenue could have been

present in the meeting on 27.02.2002, yet considering the

material gathered by the SIT and that further investigation

report of the SIT, he agrees with the SIT that late Haren Pandya

could not have been present in the meeting on 27.02.2002 and

therefore, his (late Haren Pandya) statement regarding the

alleged statement made by Shri Modi in the aforesaid meeting

may be disregarded.

II. That he would also agree with the findings of SIT that the

statement made by Shri R.B. Sréekumar, the then Addl. DG

(Int.) to Shri K. Chakravarthi, the then DGP would 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 steps taken

by Shri Narendra Modi to control the riots in Ahmedabad City

is concerned, the same may be accepted.

IV. That as far as the observations of the Chairman, SIT on the

handing over of the bodies of the Godhra victims to Shri

Jaydeep Patel are concerned, the same may be accepted.

V. That as far as the observations of the SIT with regard to the

Chief Minister's statement on television on 01.03.2002 are

concerned the same may be accepted.

VI. That as far as SIT's observations with regard to the alleged

inaction of Shri P.C. Pande, the then Commissioner of Police,

Ahmedabad City are concerned, no comment is necessary at

this stage as an application u/s 319 Cr.PC, has been filed in

respect of Shri P.C. Pande also, and the sane may be dealt with

423

by the concerned Court in accordance with law, in the same

manner as suggested in respect of Shri M.K. Tandon and Shri

P.B Gondia.

Shri Raju Ramchandran, Amicus Curiae has come to the

conclusion that at this prima facie stage offences inter-alia u/s 153

A(1)(a) & (b), 153B(1) (c),166 and 505(2) IPC are made out against Shri

Narendra Modi. He has further stated that it would be for the Court

of competent jurisdiction to decide whether Shri Modi has to be

summoned for any or all of these offences or for any other offences.

These findings are based on the following grounds :-

a. That Shri Sanjiv Bhatt has brought his former driver Shri

Tarachand Yadav and had submitted his affidavit sworn on

17.06.2011, which supports Shri Bhatt's version that he had

gone to the residence of the Chief Minister on 27.02.2002.

b. That Shri Sanjiv Bhatt submitted an affidavit of Shri K.D.

Panth, Constable affirmed on 17.6.2011 supporting the

version of Shri Bhatt about going to Chief Minister's residence

on the night of 27.02.2002.

c. That Shri Rahul Sharma, DIG submitted an analysis of the call

records of senior police officers, which according to Shri

Sharma corroborates the statement of Shri Bhatt.

d. That though Shri Sanjiv Bhatt has been contending that he

would speak only when under a legal obligation to do so, his

conduct after making a statement u/s 161 Cr.PC has not been

that of a detached police officer, who is content with giving

his version.

e. That it does not appear very likely that a serving police officer

would make such a serious allegation against Shri Narendra

Modi, Chief Minister without some basis.

f. That there is no documentary material of any nature

whatsoever, which can establish that Shri Bhatt was not

present in the meeting on 27.02.2002 and in the absence of

the minutes of the meeting, there is again no documentary

evidence is available, as to the participants in the meeting and

what transpired at the said meeting. Therefore, it is the word

of Shri Sanjiv Bhatt against the word of other officers senior

to him.

424

g. That it is difficult to accept that Shri Bhatt's statement is

motivated because he has an axe to grind with the State Govt.

over issues concerning his career and it may not be proper to

disbelieve Shri Sanjiv Bhatt at this stage only because the

other officers have not supported his statement.

h. That the delay in making the statement can not be the sole

ground to disbelieve the statement at this stage especially in

view of his explanation that as an Intelligence Officer, who was

privy to a lot of sensitive information, he would make a

statement only when he was under a legal obligation to do so.

i. That Shri G.C. Raiger, Addl. DG (Int) was on leave on

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Page: 455

27.02.2002 and DGP Shri K Chakravarthi does not state that

he had gathered intelligence from the office of Shri Raiger.

Further, Shri P.C. Upadhay, the then DCI (Political &

Communal) was on leave on 27.02.2002 and Shri Bhatt was

looking after his work. Also Shri Raiger has stated that Shri

Bhatt had accompanied him in the past to meetings called by

the Chief Minister, though he used to wait out side with files

or information and therefore, it is quite possible that Shri

Bhatt was directed to attend the meeting on 27.02.2002 at the

residence of Chief Minister.

j. That the phone calls records do not contradict the statement

given by Shri Sanjiv Bhatt to the SIT and considering the

important and emergent nature of the meeting, the relative

juniority of Shri Bhatt need not have come in the way of his

attending the meeting especially since Addl. DG (Int.) Shri

Raiger was not available and Shri O.P. Mathur, the IGP

(Security & Admn.) who was next in seniority was not called

for the meeting and that this aspect was of little significance

in the context of an emergency meeting called at short notice

in response to an escalating situation.

k. That the discrepancies about the exact language used or the

time of meeting at the Chief Minister's residence at

Gandhinagar on 28.02.2002, are inevitable considering the

lapse of time.

425

As regard the assessment of the role played by Shri M.K.

Tandon, 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 appropriate for the Hon'ble

Supreme Court of India to direct the trial Court to consider an

application u/s 319 Cr.PC filed by the victims in Gulberg Society

Case on the evidence brought before it and also consider the further

investigation report submitted by Shri Himanshu Shukla, DCP to the

Hon'ble Supreme Court of India on 26.11.2010 and the statements

recorded by him and to pass appropriate orders in accordance with

law. The Ld. Amicus Curiae has also submitted to the Hon’ble

Supreme Court to consider whether an offence u/s 304A IPC is made

out. The Ld. Amicus Curiae has finally come to the conclusion that

since the SIT has conducted a statutory investigation u/s 173 (8)

Cr.PC, the report is required to be filed in the Court and it is for the

competent Court to pass necessary orders after hearing the

concerned parties. However, the Hon'ble Supreme Court has

refrained from passing any order in this regard except that Chairman,

SIT has been directed to forward a Final Report along with entire

material collected by it to the Court, which had taken cognisance of

Cr.No.67/2002 u/s 173(2) Cr.PC.

Shri Raju Ramachandran, the Ld. Amicus Curiae has agreed

with the findings of the SIT on all the major issues. Whereas the

complainant has made an allegation that Shri Narendra Modi, Chief

Minister sponsored the riots, the Ld. Amicus Curiae has come to the

conclusion that sufficient steps were taken by the Chief Minister to

control the riots. The Ld. Amicus Curiae did not allege any

conspiracy or abetment on the part of Chief Minister. He has further

agreed with the recommendations of SIT that the statement made by

Shri R. B. Sreekumar that Shri K. Chakravarthi had informed him

about the utterances made by the Chief Minister on 27.02.2002 night

would not be admissible as the same amounted to hearsay evidence

and therefore, inadmissible. He is also of the view that the

recommendations of the SIT about the steps taken by the Chief

Minister to control the riots may be accepted. He has also agreed

with the recommendations of chairman, SIT about handing over the

dead bodies of Godhra victims to Shri Jaydeep Patel. About the Chief

Minister's alleged statement on television on 01.03.2002, by

referring to the Newton's third Law of Motion also the Amicus has

agreed the recommendations of the SIT.

426

Shri Raju Ramchandran, Ld. Amicus Curiae is of the view that

a prima facie case u/s 153 A(1)(a) & (b), 153B(1)(c), 166 and 505(2)

IPC is made out against Shri Narenda Modi, Chief Minister. However,

he is further of the view that it would be for the Court of competent

jurisdiction to decide whether Shri Modi has to be summoned for any

or all of these offences or for any other offence. This

recommendations of Ld. Amicus Curiae is based on the sole

testimony of Shri Sanjiv Bhatt, the then DCI (Security), who has

claimed to have attended a meeting called by the Chief Minister on

27.02.2002 night at his residence. It may be mentioned here that

seven (7) other participants of the said meeting have categorically

stated that Shri Sanjiv Bhatt did not attend the said meeting.

According to the Ld. Amicus Curiae, Shri Sanjiv Bhatt produced his

driver Shri Tarachand Yadav, a dismissed constable driver of Gujarat

Police along with his affidavit dated 17.06.2011, who supports, Shri

Bhatt's version that he had gone to the residence 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’s residence

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Page: 456

from DGP’s office and that Shri K.D. Panth, the then AIO, State IB

followed him in his staff car driven by Shri Tarachand Yadav. The Ld.

Amicus Curiae has wrongly projected that Shri K.D. Panth, constable

has supported the version of Shri Sanjiv Bhatt about the latter's visit

to CM's residence on 27.02.2002, in as much as Shri K.D. Panth has

lodged a complaint on 17.06.2011 against Shri Sanjiv Bhatt for

wrongful confinement and also for getting an affidavit signed from

him under duress and threat and a case I CR No.149/2011 was

registered u/s 189, 193, 195, 341, 342 IPC has been registered

against Shri Sanjiv Bhatt on 22.06.2011 in Ghatlodia P.S,

Ahmedabad City. Shri Raju Ramchandran has relied upon a copy of

this affidavit which was handed over to him by Shri Sanjiv Bhatt on

17.06.2011. In fact, Shri K.D. Panth had sent a letter to Chairman,

SIT in this regard on 17.06.2011 itself along with another affidavit

sworn before the Dy. Collector, Gandhinagar to the effect that he was

on leave on 27.02.2002, and that his statement made before the SIT

in this regard was correct. It would not be out of place to mention

427

here that a copy of the said letter along with the affidavit submitted

to SIT by Shri K.D. Panth with its English translation were handed

over to Shri Raju Ramchandran by Shri Y.C. Modi, Member, SIT and

Shri A.K. Malhotra, Member, SIT personally on 21.06.2011, but the

same has been conveniently ignored by the Ld. Amicus Curiae. The

claim of Shri Sanjiv Bhatt has been dismissed by Shri K.

Chakravarthi, the then DGP, who has denied that Shri Bhatt

accompanied him in his staff car to CM's residence on 27.02.2002.

Significantly, log book of the vehicle of Shri Chakravarthi shows only

PSO accompanied him and there is no mention of Shri Sanjiv Bhatt

in the same. Further, Shri Dilip Ahir and Shri Dharampal Yadav, the

then PSOs to the DGP and Shri Panchusinh Yadav and Shri Mangilal

Kala, the then drivers attached to the DGP have categorically denied

that Shri Sanjiv Bhatt ever travelled in DGP's staff car. The

observation made by the Ld. Amicus Curiae that Shri K.D. Panth had

supported the version of Shri Sanjiv Bhatt is, therefore, incorrect.

Further, keeping in view the version of Shri K.D. Panth that he was

on leave on 27.02.2002, would falsify the statement made by Shri

Tarachand Yadav, driver to the effect that he had followed the DGP's

vehicle with Shri K.D. Panth, Constable.

It is significant to note that the Ld. Amicus Curiae has admitted

that

"I am conscious of the fact that though Shri Bhatt has been

contending that he would speak only when under a legal

obligation to do so, his conduct after making his statement u/s

161 Cr.PC has not been that of a detached police officer, who is

content with giving his version. I am left with no doubt that he is

actively "strategising" and is in touch with those, who would

benefit or gain mileage from his testimony":

The Ld. Amicus Curiae has also mentioned that Shri Rahul

Sharma, DIG submitted an analysis of the call records of senior police

officers, which according to Shri Sharma corroborates the statement

of Shri Bhatt. Shri Rahul Sharma never stated anything like that

before the SIT Shri Rahul Sharma has not stated that in what manner

the call details of the senior officers corroborate the statement of

Shri Sanjiv Bhatt. The Ld. Amicus Curiae has accepted the

contention of Shri Sanjiv Bhatt that as an Intelligence Officer, he

was privy to some information and would speak only, when he was

legally bound to do so. In this connection it may be stated that the

alleged meeting called by the Chief Minister in the night of

428

27.02.2002 was essentially a law and order review meeting which was

attended by the various officials of State Administration and

therefore the question of oath of secrecy or application of the Official

Secrets Act does not arise because it was neither a secret meeting

nor would the revelation of the contents of the said meeting

jeopardized the public interest. Shri Sanjiv Bhatt has used the

Official Secrets Act as a pretext to justify a long delay of nine years

and the fact that an official of the intelligence unit attended a law &

order meeting, the same does not became a secret meeting for which

a privilege of secrecy is being claimed by Shri Sanjiv Bhatt. The view

of the Ld. Amicus Curiae that it does not appear very likely that a

serving police officer would make such a serious allegation without

some basis appears to be erroneous in as much as Shri Sanjiv Bhatt

had been all along a delinquent in his career and had been trying to

bargain with the government. The very fact that three departmental

enquiries against Shri Sanjiv Bhatt were dropped in 2006-07 and he

was given three promotions on a single day would by itself go to show

his service career progression. Again his promotion to the rank of

IGP was due for quite sometime but he did not get the same because

of other departmental enquiries as well as court cases pending

against him. This reason by itself is sufficient to bring a motive on

the part of Shri Sanjiv Bhatt to make a statement against the Chief

Minister. Further, it is true that no minutes of the meeting were

maintained and there is no documentary evidence available to show

as to what transpired in the said meeting. However, the evidence of

seven senior officers can not be ignored to the effect that Shri Sanjiv

Blatt was not present in the said meeting and claim of Shri Sanjiv

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Page: 457

Bhatt about his having attended the said meeting and also about

some alleged utterances made by the Chief Minister is not

acceptable. The observation made by the Ld. Amicus Curiae that Shri

Sanjiv Bhatt can not be disbelieved because his statements was

motivated and he has an axe to grind against the government over

issues concerning his career and also that absurd. The further

observation of Ld. Amicus Curiae that in the absence of Shri G.C.

Raiger, the then Addl. DGP (INT) and Shri P.B. Upadhya, the then DCI

(Political & Communal) being on leave, it was quite possible that Shri

429

Sanjiv Bhatt was directed to attend the meeting on 27.02.2002 is

based on conjectures and surmises. The contention of Ld. Amicus

Curiae that the phone call records do not contradict the statement

of Shri Sanjiv Bhatt is without any basis in as much as the same do

not even support his statement. The call detail records show the

location of Shri Sanjiv Bhatt at Ahmedabad and the last call was

received by him at 20.40 hours, which do not establish that Shri

Sanjiv Bhatt had gone to Gandhinagar to attend a meeting around

22:30 hours.

Significantly, the claim of Shri Sanjiv Bhatt of having attended

the meetings on 27/28.02.2002 becomes false and unacceptable as

according to his call detail records he could not have been present

in the alleged meeting that took place at CM's residence on

28.02.2002 at 1030 hrs. Another claim of Shri Sanjiv Bhatt that he

left the meeting of 27.02.2002 night halfway is suggestive of the fact

that in reality he did not attend the meeting. This meeting was of a

very short duration and it was practically impossible for a junior

officer of the level of Shri Bhatt to leave the meeting midway.

Further, the view of Ld. Amicus Curiae that the exact language

allegedly used by the Chief Minister in the said meeting on

27.02.2002 is not material, can not be accepted in as much as there

are atleast three versions available on record in this regard. Smt.

Jakia Nasim in her complaint has claimed that a high level meeting

was convened by the Chief Minister at which Chief Secretary Subba

Rao, Home Secretary Ashok Narayan and senior police men were

summoned at which clear instructions were given 'not to deal with

the Hindu rioting mobs'. Further, Shri R. B. Sreekumar has claimed

that Shri K. Chakravarthi had informed him on 28.02.2002 that Shri

Narendra Modi, CM had convened a meeting of senior officers on

27.02.2002 late in the evening on return from Godhra and had said

that in communal riots police takes action against Hindus and

Muslims on one to one basis. This will not do now – allow Hindus to

give vent to their anger. As against this, Shri Sanjiv Bhatt claims

that the Chief Minister allegedly impressed upon the gathering in the

meeting for that for too long the Gujarat Police had been following

the principle of balancing the actions against the Hindus and

Muslims while dealing with the communal riots in Gujarat. This time

the situation warranted that the Muslims be-taught a lesson to

ensure that such incidents do not recur ever again. The Chief

Minister Shri Narendra Modi expressed the view that the emotions

were running very high amongst the Hindus and it was imperative

430

that they be allowed to vent out their anger. It is not understood as

to whose words should be relied upon because none of them i.e. Smt.

Jakia Nasim, Shri R. B. Sreekumar and Shri Sanjiv Bhatt were

present in the said meeting. Another factor worth consideration at

this stage is that there is no evidence available on record that any

instructions on these lines were passed on to the police formation

down below thereby ruling out the possibility of such utterances as

alleged were made by CM in the meeting.

Based on the aforesaid three versions Amicus Curiae has arrived at

a conclusion that the same would attract the offences u/s I53 A (1) (a) &

(b), 153B (1) (c),166 and 505 (2) IPC.

Section 153A (1) (a) IPC states that 'whoever, by words promotes

or attempts to promote disharmony or feelings of enmity, hatred, or

ill will on the ground of religion between different religious

communities. In other words, Section 153A(1)(b) IPC can be

paraphrased as 'whoever commits any act which is prejudicial to the

maintenance of harmony between different religious communities

and which is likely to disturb the public tranquility’. Even if any of

the aforesaid three versions allegedly made by Chief Minister, the

ingredients of section 153A(1) (a) & (b) are not attracted. The facets

of the allegations attributed to Shri Narendra Modi can not fall under

sub-class (a) or (b) of the 153 (A) (1) IPC. At this juncture, it would

not be out of place to mention that the Chief Minster made four

statements within 24 hours on 27/28.02.2002. At Godhra on

27.02.2002 evening the Chief Minister publicly said that burning of

karsevaks in a train at Godhra was unparalleled in the history and

assured the people that the culprits would be punished. He also said

that the Government would ensure that the peace was maintained in

the State and the Government would not be lacking in discharging

its duty. On 28.02.2002 morning, he spoke in the assembly after

obituary reference that the State government has taken this cruel,

inhuman, heinous and organized crime very seriously and is

committed to take symbolic strict

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Page: 458

steps and to punish the culprits in such an exemplary manner that

such an incident may not recur in future. On 28.02.2002 afternoon

431

in his press conference in Circuit House Annexe, Ahmedabad, Shri

Narendra Modi reiterated that Government of Gujarat has taken this

heinous train burning incident at Godhra very seriously and that

people should help the government to ensure that the culprits are

punished. Shri Narendra Modi also told the press that those who had

acted in retaliation and anger after the incident shall also not be

spared. Further, he appealed made to the people of Gujarat on

Doordarshan on 28.02.2002 evening to keep restrain and maintain

peace and harmony. He also said that the Government was

determined to bring these culprits to justice and give them

unimaginable punishment. It may thus be seen that the thrust of

CM's speech everywhere was that the incident was heinous,

organised and that the culprits would be brought to strictest,

punishment.

Similarly, section 505 (2) IPC can be paraphrased as Whoever

makes any statement with intend to create (or permit to create (or

is likely to create or permit to create) feelings of enmity or hatred or

ill will between different religious community. In view of the reasons

enumerated above a case u/s 505(2) IPC is also not made out.

Also, section 153B (1) (c) IPC can be paraphrased as Whoever by

words makes any assertion concerning, the obligation of any class or

person by reason of their being members of a religious community

and such assertion is likely to cause disharmony or feeling of enmity

or hatred or ill will between such members and other persons. As

regards the application of this section, it may be mentioned that it

is not the case that the Chief Minister made any assertion

concerning the obligation of any religious community to do such acts

as are likely to cause disharmony. He did not make any appeal to

Hindus or Muslims to take up arms against each other. On the other

hand Shri Narendra Modi made an appeal on 28.02.2002 that both

the communities should desist from doing any act by physically

attacking each other. This appeal was broadcasted by the

Doordarshan intermittently. In view of this no offence u/s 153B (1)

As regards section 166 IPC, it deals with the public servants

disobeying any direction of law as to the way in which he is to

conduct himself as a public servant. It can not be extracted from the

statement attributed to Shri Narendra Modi that he was thereby

disobeying any directions of law as to the way, in which he is to

conduct himself as Chief Minister. No such directions can be quoted

432

from law as for the Chief Minister to disobey it. In view of this there

is no application of section 166 IPC at all against Shri Narendra Modi.

Thus recommendations of Amicus Curiae and evidence

collected during further investigation u/s 173 (8) Cr.PC have been

examined in detail to see, if the ingredients of the suggested sections

for prosecution are attracted or not. On such assessment it is

reasonably concluded that no utterances on part of Shri Narendra

Modi could be attributed suggestive to any intended promotion of

hatred ill-will etc. amongst religious groups. The settled legal

position is that mensrea is required for offences u/s 153A IPC. In

view of the same and evidence discussed in preceding paras, there is

no evidence to prima facie allege commission of suggested offences

by Shri Narendra Modi.

Shri Sanjiv Bhatt, DIG (under suspension) has sent a letter

dated 30.12.2011 to the Secretary, Hon'ble Justice Nanavati &

Justice Mehta Commission of Inquiry enclosing herewith an

Annexure 'D', which is a copy of fax message No. D-2 /2-COM

I/ALERT /174/ 2002, dated 28.02.2002, which he claimed to have

sent to different authorities under his signature. The same Annexure

'D' has been uploaded on website www.twocircle.net. It is reproduced

below:

ANNEXURE-D

FAX MESSAGE

(PRIORITY: CRASH)

TO PS to CM Gandhinagar

PS to MOS (Home)

INFO Home Sec Gandhinagar

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Page: 459

Police Gandhinagar

CP Ahmedabad

FROM Addl. D.G.P. Intelligence, G.S. Gandhinagar

433

O. No D-2/2 COWALERT/100/2002 Date: 28.2.2002

Text As informed telephonically to the Hon’ble CM Ex-MP Ehsan

Zafri and his family members residing at Gulbarg Society, Chamanpura

Meghaninagar have been surrounded and are being attacked by a Hindu

Mob in the presence of Police Bandobust (.) The lives of Ehsan Zafri and

other family members are in imminent danger (.)

CP Ahmedabad is requested to take immediate effective action

and provide a situation report to SCR under intimation to this office at

the earliest (.)

(Sanjiv Bhatt)

Dy. Commissioner (Communal)

For Addl. D. G. P. Int., G. S.

Gandhinagar

Subsequently, on 04.01.2012, Shri Sanjiv Bhatt forwarded to

Chairman, SIT a copy of his letter No. SRB/COI/120104/01 dated

04.01.2012 addressed to Secretary, Justice Nanavati Commission of

Inquiry enclosing therewith a copy of fax message No.D-2/2-

COM/ALERT /100/2002, dated 27.02.2002, claiming to have sent the

same under his signature. A copy of the said fax message is also

reproduced below:

FAX MESSAGE

(PRIORITY: CRASH)

To CP Ahmedabad

Info: PS to CM Gandhinagar

PS to MOS (Home) Gandhinagar

Home Sec Gandhinigar

Police Gandhinagar

From D. G. P. Intelligence, G. S. Gandhinagar

O. No D-2/2 COWALERT/100/2002 Date: 27.2.2002

434

TEXT: Pursuant to the meeting held by the Hon'ble Chief Minister it

has become clear that the State Government wishes to go ahead with the

decision of bringing the dead bodies of Kar Sevaks to Ahmedabad by road

under Police escort (.)

The dead bodies will be brought to Sola Civil Hospital in your

Jurisdiction before being taken out for cremation (.) Local cadres of BJP/

Bajrang Dal are being massively mobilized for enforcing the VHP/BJP

supported Gujarat Bandh (.) Widespread retributory 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 dated 04.01.2012 a

notice u/s 91 Cr.PC was issued to Shri Sanjiv Bhat on 13.01.2012,

to produce the original/office copy of the fax message dated

27.02.2002. However, Shri Sanjiv Bhatt refused to accept the said

notice. Instead, he sent a letter dated 15.01.2012 contending that

the aforesaid document had already been handed over to Shri A.K.

Malhotra of SIT in the year 2009 and IO Shri Himanshu Shukla in

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Page: 460

2011. Shri Sanjiv Bhatt further contended that, in the normal course

of investigation, the Investigating Officer should have called for the

original and/or office copy of the aforesaid fax message from the

State IB Gandhinagar and the offices of the respective recipients of

the said fax message.

In this connection, it may be emphasized that the statement 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 the aforesaid two messages, which Shri Bhatt now

claims to have sent on 27.02.2002 & 28.02.2002, despite the fact

435

that copies of all others messages duly mentioned by him in his

statement were handed over by Shri Bhatt to Shri Malhotra.

Similarly, the statement of Shri Sanjiv Bhatt was recorded u/s 161

Cr.PC by the IO Shri Himanshu Shukla on 21.03.2011 & 22.03.2011,

and the same also did not contain any reference to the aforesaid two

messages. This raises very serious doubts about the authenticity of

the claim that these messages had in fact been sent to the concerned

addresses. Significantly, the statements recorded by Shri A.K.

Malhotra and the IO (Shri Himanshu Shukla) were submitted to the

highest Court of country (Supreme Court) at the relevant point time.

Apart from the aforesaid position, the following points would go

to show that Shri Sanjiv Bhatt had the full opportunity to produce

these messages if they had in fact been prepared and sent to

concerned authorities, and did not produce before SIT:

1. Shri Sanjiv Bhatt did not file any affidavit before the Nanavati

Commission of Inquiry, and, in case, he, was in possession of

these documents, he should have filed 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 his letter

dated 27.12.2011 addressed to Secretary, Nanavati

Commission of Inquiry has categorically stated that he had

requested all the senior officers of the State IB in the rank of

SP and above including Shri Sanjiv Bhatt (who had assisted his

predecessor Shri G.C. Raiger, Addl. DG (Int.) from 27.02.2002

to 08.04.2002) to submit any affidavit covering the terms of

reference of the Commission; but none of them filed any

affidavit. Shri Sreekumar further stated in his letter to the

Nanavati Commission that he had asked all the senior officers

of State IB to provide him all the relevant documents in their

possession relating to riots. Accordingly, all these documents

received by him from his officers were appended by him to his

first affidavit filed before the Commission on 15.07.2002.

However, Shri Sanjiv Bhatt did not produce any such message

before Shri Sreekumar.

3. Shri Sanjiv Bhatt did not produce any of the aforesaid

messages, either before Shri A.K.Malhotra, Member, SIT during

the course of the preliminary inquiry conducted by him under

the orders of Hon'ble Supreme Court of India or before Shri

Himanshu Shukla, DCP, Crime, Ahmedabad City, who had

conducted further investigation u/s 173(8) in this case

436

(Cr.No.67/2002 of Meghaninagar P.S. (Gulberg Society Case)).

He did not also refer to either of these two fax messages in his

statements made before Shri A.K. Malhotra Member, SIT on

25.11.2002 & 26.11.2002 and before Shri Himanshu Shukla on

21.03.2011. As already highlighted above, both these

statements were submitted to the Hon'ble Supreme Court of

India on 14.05.2010 and 25.04.2011 respectively.

4. Shri Sanjiv Bhatt, suo moto, filed an affidavit dated 14.04.2011

before the Hon'ble Supreme Court of India in SLP (Crl.)

1088/2008 filed by Smt. Jakia Nasim. In that affidavit also he

did not mention anything about the two aforesaid fax messages.

5. Shri Sanjiv Bhatt was summoned before the Nanavati

Commission in May, June & July, 2011 for his deposition and

cross examination. However, he did not mention anything

about the aforesaid two fax messages to the Commission.

6. Shri Sanjiv Bhatt was called by Shri Raju Ramchandran, Amicus

Curiae for personal interaction at Gandhinagar on 18.06.2011.

On that occasion also, Shri Sanjiv Bhatt did not mention

anything about the aforesaid two fax messages to the Amicus

Curiae and confirmed his statements recorded during the SIT's

Preliminary Inquiry as well as subsequently recorded u/s 161

Cr.PC by the IO.

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7. Shri R.B.Sreekumar, in his letter dated 28.12.2011 addressed

to Shri Sanjiv Bhatt (copy sent to SIT), has clearly stated that

the plethora of incriminating information against the Govt.,

which he (Sanjiv Bhatt) claimed to possess now, had not been

put up to him at the time of filing his first affidavit on 15.07

2002. Further, if it had come to his (Sanjiv Bhatt), notice that

such material had not been included in his affidavit, nothing

stopped him from filing a separate affidavit bringing these

relevant inputs to the notice of the Commission. Shri

Sreekumar also highlighted that nearly 12 intelligence reports

produced before him by Shri Sanjiv Bhatt were included in it,

and the same did not contain anything about the role of the

437

Govt. officials in the alleged planning and execution of the

antiminority genocide and subsequent prolonged subversion of

the criminal justice system and delayed justice to the riot

victims.

It may thus be seen that Shri Sanjiv Bhatt produced two fax

messages for the first time before Nanvati Commission of Inquiry

only in the month of December, 2011, and subsequently before the

SIT in January, 2012.

A perusal of the photo copy of the office copy of fax message

No. D-2/2-COM / ALERT/100/2002, dated 27.02.2002 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, would

go to show that there was no security classification of the said

message. The dispatch register of the D-2 section of the State IB does

not show any dispatch of the said message as the dispatch number

on the said date was under serial number 90. Investigation revealed

that actually a letter No. D-2 /2-COM/BANAO/100/2002, dated

02.03.2002 was sent on behalf of Addl. DG (Int.) to ACS (Home), Govt.

of Gujarat with information to Police Gandhinagar, PS to CM and PS

to MoS(Home) and the same related to I Cr. No. 9/02 u/s 302, 114

etc. of Khanpur P.S., Distt. Panchmahals. The said message bears a

typed dispatch number, which is very unusual, because all the

dispatch numbers on the messages sent by State IB on 27.02.2002

were hand written. It is not understood as to what prompted Shri

Sanjiv Bhatt to send such a message, when all the individuals to

whom this message had been addressed were present in the meeting

held at the CM's residence on the night of 27.02.2002, and it was

known to all of them that the Govt. had already decided to bring the

dead bodies to Ahmedabad, for which the necessary bandobast was

required to be made: The said message had not been marked to IGP

(P&C), but was allegedly put up to Shri O.P. Mathur, the then IGP

(PRC) who allegedly initialled the same in token of having seen the

same on 28.02.2002. Surprisingly, this message was not put up to

Shri G.C. Raiger, the then Addl. DG (Int.), who was very much in the

office on 28.02.2002. Further, Shri O.P. Mathur, the then IGP (P & C)

also did not mark it to Addl. DG (Int.), a fact which raises serious

doubts about the genuineness of the message in question.

A perusal of the photo copy of the office copy of fax message

No. D-2 /2-COM/ALERT/174/2002, dated 28.02.2002, now claimed

to have been sent by Shri Sanjiv Bhatt, the then DCI (Security), on

behalf of Addl. DGP (Int.) to PS to CM and PS to MoS (Home) with

information to Home Secretary, Police Gandhinagar and CP,

Ahmedabad, would go to show that there was no security

438

classification of the said message. The dispatch register of the D-2

section of the State IB also does not show any dispatch of the said

message as the dispatch number on the said date was under serial

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, New Delhi and related to the

daily report about the communal incidents up to 16.03.2002 (1800

hrs) in Gujarat state. This message was allegedly put up to Shri G.C.

Raiger, the then Addl. DG (Int.), for favour of perusal, and the same

allegedly bears the initials of Shri Raiger dated 28.02.2002.

Interestingly, the message in question had been addressed to PS to

CM and PS to MoS (Home), whereas the same was actually actionable

by Commissioner of Police, Ahmedabad City. Further, Shri Sanjiv

Bhatt had signed a fax message No. C/ D-2 /BANAO /178 /2002,

dated 28.02.2002, which was received by Shri E.L. Christian, the

then PI, State IB Control Room and written by Shri Bharatsinh

Rathod, the then AIO, to the dictation of Shri Christian, who

subsequently took it personally to Shri Bhatt for his signature. In

this message, it had been mentioned that, based on received

information, Gulberg Society located in Chamanpura, Meghaninagar

had been attacked by a mob of Hindu rioters and late Ahesan Jafri,

Ex-MP along with his family members and 18 others had been killed,

and that the attack was still continuing and this incident was likely

to have Statewide repercussions. This message would clearly show

that no earlier intimation prior to the attack on Gulberg Society had

been sent by Shri Sanjiv Bhatt, as the same did not contain any

reference to the earlier message claimed to

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Page: 462

have been sent by Shri Sanjiv Bhatt vide message No.D-2/2-

COM/ALERT/174/2002 dated 28.02.2002. The information

contained in the message No.178 dated 28.02.2002 had actually been

received over telephone by Shri E.L. Christian, PI who had dictated

the same to his AIO Shri Rathod and not by Shri Sanjiv Bhatt as

claimed by him. Undoubtedly at the time of signing this message,

Shri Sanjiv Bhatt had marked the message as "MOST URGENT" in his

own handwriting. Efforts were made to locate the dispatch register

and fax register of State IB Control Room, but the same had been

reportedly destroyed. Further efforts were made to locate the so

called message No. 174 dated 28.02.2002 with the persons to whom

439

the said message had been shown addressed, but without any success

till date.

During the course of further investigation, the persons who are

supposed to have received the two messages dated 27.02.2002 &

28.02.2002 as well as the concerned officials of State IB, who were

present in the office as also in the Control Room on the aforesaid

two dates were examined and the evidence collected is discussed in

subsequent paras.

Dr. P.K. Mishra, the then Principal Secretary to Chief Minister,

has denied having received or seen the message dated 27.02.2002,

purportedly sent by Shri Sanjiv Bhatt. He is of the view that there

was no occasion for Shri Sanjiv Bhatt to send such a message,

because every participant at the law & order review meeting called

by the Chief Minister on the night of 27.02.2002 was aware of the

fact that the dead bodies of kar-sevaks who were killed in Godhra

train carnage incident, were being brought to Ahmedabad by road

under police escort. Dr. Mishra denied receiving or having seen the

fax message No. D-2/2- COM/ALERT/174/2002, dated 28.02.2002.

He added that the claimed message was quite alarming, and that had

he received any such message, he would certainly remember the

same. On being shown fax message No.C/ D-2 / BANAO / 178/2002,

dated 28.02.2002 handwritten in Gujarati and signed by Shri Sanjiv

Bhatt on behalf of Addl. DG (Int.) and addressed to Home Secretary,

Gandhinagar with information to PS to CM, PS to MoS (Home) Police

Gandhinagar and Ahmedabad City. Dr. Mishra stated that the

language/expression of this message clearly indicated that the

information about the said incident was being sent for the first time,

as there was no reference to the message No. 174, which Shri Bhatt

now claims to have sent earlier during that day. Finally, Dr. Mishra

stated that the aforesaid two fax messages dated 27.02.2002 &

28.02.2002 in English allegedly sent by Shri Bhatt were false and

fabricated documents.

Shri Gordhan Zadafia, the then MoS (Home), denied having

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 now claimed

to have been sent by Shri Sanjiv Bhatt, the then DCI. He further

stated that both these messages were false and bogus, and had never

been received in his office. According to Shri Gordhan Zadafia, these

messages have been fabricated and have been introduced for the first

time after a lapse of about 10 years of the events mentioned therein,

and that this appears to be a deliberate attempt on the part of Shri

Sanjiv Bhatt to involve him in the Gulberg Society incident. He does

not remember receiving message No. C/D-2/ BANAO/178/2002,

dated 28.02.2002 in Gujarati bearing the signature of Shri Sanjiv

440

Bhatt. However, Shri Gordhan Zadafia has stated that the fact that

this message does not contain any reference to the earlier message

No. 174 allegedly claimed to have been sent by Shri Sanjiv Bhatt on

the same day, would show that the earlier message was a fabricated

one. He has stated that he came to know about the Gulberg Society

incident late in the afternoon of 28.02.2002, and that on receipt of

the said information, necessary instructions were given to the

concerned police officers 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, dated 27.02.2002 and D-2/2-

COM/ALERT/174/2002, dated 28.02.2002 in English claimed to

have been sent by Shri Sanjiv Bhatt, the then DCI. He further stated

that he did not remember to have received the handwritten fax

message No. C/D-2/BANAO/178/2002, dated 28.02.2002 in Gujarati

bearing the signature of Shri Sanjiv Bhatt.

Shri Ashok Narayan, the then ACS (Home), denied having

received or seen the typed fax message No. D-2/2-

COM/ALERT/100/2002, dated 27.02.2002 claimed to have been

sent by Shri Sanjiv Bhatt. Shri Ashok Narayan is of the view that

such a message was not required to be sent by Shri Sanjiv Bhatt,

because as a decision to bring the dead bodies of the kar-sevaks to

Ahmedabad by road had already been taken by the Chief Minister at

Godhra itself sometime in the evening of 27.02.2002, and this fact

was well within the knowledge of DGP and CP,

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Page: 463

Ahmedabad. He further denied having received or seen a typed fax

message No.D-2 /2-COM/ALERT/174/2002, dated 28.02.2002

purportedly sent by Shri Sanjiv Bhatt on behalf 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

rather unusual. He added that both these fax messages are not

genuine and are false and fabricated documents. He denied having

received any information about the attack on Gulberg Society, and

he came to know about the killing of late Ahesan Jafri, Ex-MP

through Shri Nityanandam, the then Home Secretary some time after

the incident. After going through the message No.C/D-2/

BANAO/178/2002, dated 28.02.2002 handwritten in Gujarati. Shri

Ashok Narayan stated that he does not remember to have received

such a message after the incident, and has stated that the same does

441

not contain any reference to any earlier message vide No.174 claimed

to have been sent by Shri Sanjiv Bhatt.

Shri K. Chakravarthi, the then DGP, Gujarat has stated that the

fax message in English bearing No.D-2/2-COM/ ALERT/100/2002,

dated 27.02.2002 purportedly sent by Shri Sanjiv Bhatt as DCI

(Security) was not received or seen by him on 27.02.2002 night,

though a copy of the same is shown to have been marked to Police

Gandhinagar. He has further stated that in all such law & order

matters normally senior officers of State IB were expected to inform

their superior telephonically and thereafter follow it up with such

written message. He has also stated that Shri Sanjiv Bhatt did not

contact him telephonically or in person on the night intervening

27/28.02.2002 in this regard. He has denied to have received any

intelligence report about the massive mobilization of local cadres of

BJP for the VHP supported Gujarat Bandh. After going through a

photo copy of another fax message bearing No. D-2/2-COM/

ALERT/174/2002, dated 28.02.2002, Shri Chakravarthi has denied

to have received any such message at the relevant time. According

to Shri Chakravarthi, a member of a minority community from

Ahmedabad had telephoned him at about 1400 hrs on 28.02.2002,

about an attack on late Ahesan Jafri, Ex- MP's house and that he had

immediately telephoned CP, Ahmedabad City in the matter, to which

CP, Ahmedabad city, had informed that he had already sent officers

and additional reinforcements to deal with the situation. Shri

Chakravarhti has also stated that a fax message 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 fax message bearing No. C/D-2/BANAO/178/2002,

dated 28.02.2002 in Gujarati, Shri Chakravarthi has stated that the

language of the said fax message shows that the Gulberg Society

incident was reported for the first time through this message 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 have been sent by Shri Sanjiv Bhatt.

Shri P.C. Pande, the then CP, Ahmedabad City, has stated that

it was well within his knowledge after the meeting of 27.02.2002

night held at CM's residents, that the dead bodies of the kar-sevaks

killed in the Godhra incident were being brought to Ahmedabad City

with a view to facilitate the relatives of the deceased to identify and

claim the dead bodies. As such there was no need for Shri Sanjiv

Bhatt to send a fax message No.D-2/2-COM/ALERT/100/2002, dated

27.02.2002 to him. He denied having received any such fax message

in his office on the night intervening 27/28.02.2002 as he remained

in his office in Shahibaug till about 0100 hrs on 28.02.2002. He

further denied seeing any such message. He has also denied having

received or seen fax message No. D-2/2-COM/ALERT/174/2002,

442

dated 28.02.2002. 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 Gulberg Society by a

mob. He has also stated that the DGP might have spoken to him

about the situation in Gulberg Society and also about the declaration

of curfew, to which he was informed that the curfew had been

declared in Chamanpura Chowky area around 1220 hrs. Shri Pande

is of the view that both these fax messages now claimed to have been

sent by Shri Sanjiv Bhatt, the then DCI, are false and fabricated

documents. According to Shri Pande, this message was only marked

to him for information, though he was required to take action on the

same and send a situation report. Shri Pande has denied sending any

situation report with regard to the Gulberg Society matter to the

SCR, Gandhinagar as the message was never sent to him. As regards

the message No.C/D-2/BANAO/178/2002, dated 28.02.2002

handwritten in Gujarati and signed by Shri Sanjiv Bhatt, Shri Pande

has stated that this message could have been sent only after the

incident had taken place at Gulberg Society, and the very fact that

it did not contain any reference to the alleged earlier message No.

174 claimed to have been sent by Shri Sanjiv Bhatt would go to show

that the said message was not a genuine one and appears to have

been manipulated subsequently.

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Page: 464

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 any security classification and in case it

passed through the Control Room, it should have contained details

about the time and date. Further, the fax message does not bear the

date and time at which it was passed on to the authorities, and as

such it can not be said as to whether the said message was actually

passed on to the concerned authorities or not. Also, according to Shri

Mathur, the language of the fax message does not show as to under

whose instructions the said message was sent and who informed Shri

Sanjiv Bhatt as to what had transpired in the meeting, because in the

said message did not say that Shri Sanjiv Bhatt had himself attended

the said meeting. Had Shri Sanjiv Bhatt attended the said meeting,

he was duty bound to submit a report in writing to Addl. DG(Int.) on

28.02.2002, when Shri G.C Raiger, the then Addl. DG (Int.) was very

much in the office. Shri Mathur has further stated that the said fax

443

message had not been marked to anyone including himself. After

looking into his alleged initials dated 28.02.2002 on the office copy

of the typed fax message dated 27.02.2002 claimed to have been sent

by Shri Sanjiv Bhatt, Shri Mathur has stated that the said initials

were not his and the same had been fabricated by someone, as the

message was not marked to him. Shri Mathur has also stated that

had it been genuine paper, he would have marked the same to Addl.

DG (Int.) for his information (being the overall Head of Intelligence

wing) as Shri G.C. Raiger was very much in the office on 28.02.2002.

Shri Mathur finally stated that the said fax message was a forged

document, which had been fabricated subsequently by someone with

a vested interest. He has denied receiving the message No. D-2/2-

COM/ALERT/174/2002, dated 28.02.2002 in English allegedly sent

by Shri Sanjiv Bhatt to different authorities.

Shri G.C. Raiger, the then Addl. DG (Int.) has stated that the

typed fax message No. D-2/2-COM/ALERT/174/2002, dated

28.02.2002 was never put up to him on 28.02.2002 for perusal, and

his initials dated 28.02.2002 on the said message are fabricated. He

has stated that the said message was never seen by him and that it

was a fabricated document. He has also stated that another typed fax

message No.D-2/2-COM/ALERT/I00/2002, dated 27.02.2002

claimed to have been sent by Shri Sanjiv Bhatt to different

authorities was neither put up to him for his information nor shown

to him. He was also not orally informed about the same by Shri Sanjiv

Bhatt. However Shri Raiger has stated that on 28.02.2002 afternoon,

Shri Sanjiv Bhatt came to his chamber and conveyed a message based

on a report from local IB unit, Ahmedabad City about the collection

of a mob outside Gulberg Society, where late Ahesan Jafri, Ex-MP was

residing and also about the inadequate presence of police on the

spot. Shri Raiger has stated that the said message was passed on to

the Ahmedabad City Police Control Room. Further, according to Shri

Raiger, he along with Shri Sanjiv Bhatt, met the DGP immediately

and informed him about the developing situation at Gulberg Society.

Shri Raiger further stated that the DGP was requested to impress

upon the CP, Ahmedabad City to declare curfew in the area. To this,

DGP immediately responded by telephonically speaking to Shri P.C.

Pande the then CP, Ahmedabad City to ascertain the factual position

CP, Ahmedabad, Shri Pande informed the DGP over phone that a

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 a fax message on 28.02.2002. After going through the

444

message No.C/D-2/BANAO/178/2002, dated 28.02.2002

handwritten in Gujarati and bearing the signature of Shri Sanjiv

Bhatt, Shri Raiger has stated that the said message does not contain

any reference to message No.D-2 /2-COM/ALERT/ 174/2002, dated

28.02.2002 claimed to have been sent earlier during the day by Shri

Sanjiv Bhatt. This would go to show that the message No. D-2/2-

COM/ALERT/174 /2002, dated 28.02.2002 was not a genuine one.

Shri P.B. Upadhyay, the then Deputy Commissioner in charge

of Communal section has stated that he had proceeded on leave on

26.02.2002. However, Shri O.P.Mathur, the then IGP (Admn. &

Security), who held the additional charge of the post of IGP(P & C)

spoke to him over phone and cancelled his leave, with instructions

to report immediately for duty in the light of Godhra train carnage

incident. Shri Upadhyay accordingly reported for duty in the office

on 27.02.2002 evening around 1700 hrs or so. He has further stated

that Shri Sanjiv Bhatt, the then DCI (Security) looked after his work

in his absence and had sent some messages during the day

(27.02.2002.). He has also stated that he remained in the office till

late hours of 27.02.2002 as he stayed in Gandhinagar and that Shri

Sanjiv Bhatt left the office earlier than him as he used to live in

Ahmedabad city. He has denied complete knowledge about 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 that neither Shri Sanjiv Bhatt informed him

about it nor these messages were shown to him. According to Shri

P.B. Upadhyay, these messages do not appear to be genuine, as the

dispatch number had been typed, which was quite

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Page: 465

unusual as all dispatch numbers used to be put down in hand by the

dispatcher. According to Shri P.B. Upadhyay, had such message been

issued either on 27.02.2002 or 28.02.2002, the same would have

definitely been put up to him for perusal as he used to handle the

'Communal' subject in the office as per the then division of work. He

has also stated that the initials dated 28.02.2002 of Shri O.P. Mathur

on the fax message dated 27.02.2002 do not appear to be genuine.

Shri P.B. Upadhyay has also stated that the very fact that the

message dated 28.02.2002 was addressed to PS to CM and PS to MoS

(Home) and on which CP, Ahmedabad City was to take action, to

whom only a copy was marked, would go to show that the message

445

was not a genuine one. He has denied knowledge about a meeting at

CM's residence on 27.02.2002 evening and that Shri Sanjiv Bhatt

also did not inform him on 28.02.2002 of having attended any

meeting with the CM in the night of 27.02.2002.

Shri Iftekhar Ahemad V. Pathan, AIO, who is posted to 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 English are not available on records of D-2

section and that he had never seen the same. He has further stated

that these messages were not dispatched from the dispatch register

from the office of State IB and proved that the dispatch No. 100

related to a letter dated 02.03.2002 sent by Shri P.B. Upadhyay to

ACS (Home) regarding I Cr.No. 9/02 u/s 302 IPC of Khanpur P.S.

Distt. Panchmahals, and dispatch No. 174 related to a fax message

sent by Add. DG (int.) to Shri B.K. Haldar, Jt. Secretary, MHA, New

Delhi on 16.03.2002 regarding communal incidents reported up to

16.03.2002. According to Shri Pathan, the very fact that the dispatch

numbers had been typed would show that the messages are false and

bogus. He has further stated that Shri Sanjiv Bhatt did not come to

State IB office late in the evening of 27.02.2002 while he was in the

office till quite late. He has proved that fax message No.C/D-

2/BANAO/178/2002, dated 28.02.2002, handwritten in Gujarati, to

be in the handwriting of Shri Bharatsinh Rathod and signed by Shri

Sanjiv Bhatt, was a genuine message and a copy of the same was

available in D-2 branch. The same does not contain any reference of

either message No D-2/2- COM/ALERT/174/2002, dated 28.02.2002

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, the then IO

of State IB, who were posted to D-2 Branch and were present in the

office on 27.02.2002 & 28.02.2002 have corroborated the statement

of Shri I.V. Pathan, AIO, D-2 branch, State IB.

Shri Bharatsinh Rathod, the then AIO, State IB Control Room,

who was on duty from 0800 hrs to 2000 hrs on 28.02.2002, has

stated that the fax message No. C/D-2/BANAO/178/2002, dated

28.02.2002 was in his hand writing and was written to the dictation

of Shri E.L. Christian, the then PI, State IB Control Room, who had

received the said information over telephone from IB, Ahmedabad

Region. Shri Rathod has stated that Shri Christian took this message

personally to Shri Sanjiv Bhatt, who signed the same in Gujarati. He

446

has further stated that he put down the dispatch No.178 from the

Control Room dispatch register in his hand writing and passed on

the same to the fax operator for transmission to the concerned

authorities. However, he does not recollect the exact time of the

receipt of the said message, but it was certainly after the incident

had taken place at the Gulberg Society. On looking into the photo

copy of the office copy of fax message No.D-2/2-

COM/ALERT/174/2002, dated 28.02.2002 in English, he has stated

that the message does not bear State IB Control Room dispatch

number, which was essential had the same been dispatched from D-

2 branch. He has denied having seen or passed on the said fax

message. His version has been corroborated by Shri E.L. Christian,

the then PI, State IB Control Room.

Shri A.S. Kasiri, the then PI, State IB Control Room has 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 day duty hours

from 0800 hrs to 2000 hrs on 27.02.2002 and has confirmed his

signature thereon.

Shri N.M. Gohil, the then AlO, State IB Control Room has

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 the signature

of Shri V.J. Solanki, the then PI, State IB Control Room on the same.

Shri V. J. Solanki could not be examined, because he is unable to

speak or walk following a paralytic attack.

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Page: 466

To sum up, on the basis of the further investigation conducted

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 conclusively established that Shri Sanjiv Bhatt, the

then DCI, did not produce the same or copies thereof before any of

the authorities before December, 2011, though a number of

opportunities arose for him to do so. From the records of D-2 section,

it is conclusively established that one of these fax messages were

issued/dispatched from the said section of State IB dealing with the

447

communal affairs. Besides that Shri P.B. Upadhyay, the then

DCI(Communal) and Shri I.V. Pathan, AIO, who is posted to D-2

Section since the year 2000 till date, have categorically stated that

neither of those two fax messages was issued from their section and

that copies thereof are not available in the records of the State IB.

Shri O.P. Mathur, the then IGP(P & C) has categorically stated that

fax message NO.D-2/2-COM/ALERT/100/2002, dated 27.02.2002

was fabricated document and that his initials thereon are not

genuine. Shri G.C. Raiger, the then Addl. D.G.(Int) has denied his

initials on the fax message No. D-2/2-COM/ALERT/174/2002, dated

28.02.2002 and has stated that the same have been forged by

someone and that 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 then Principal

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 were claimed to have been sent by Shri

Sanjiv Bhatt, all have denied having received any such fax messages.

The very fact that there is no reference to fax message No. 174 dated

28.02.2002 by Control Room in fax message No.178 actually sent on

28.02.2002 after the Gulberg Society incident, would conclusively

prove that no such message was sent earlier on 28.02.2002. The oral

and documentary evidence available on record would therefore

conclusively prove that these fax messages now produced by Shri

Bhatt have been fabricated subsequently with an ulterior motive, and

have been produced by Shri Sanjiv Bhatt for the first time before the

Nanavati Commission of Inquiry and subsequently before SIT in

January, 2012. No reliance can, therefore, be placed upon both these

fax messages.

To sum up, Shri A.K. Malhotra, Member, SIT has conducted an

inquiry into the complaint made by Smt. Jakia Nasim as per the

orders of the Hon’ble Supreme Court of India passed on 27.04.2009.

In compliance to the said order a report was submitted by 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, Ahmedabad City. Further investigation in

the matter was conducted by the undersigned (Shri Himanshu

Shukla, DCP, Crime Branch, Ahmedabad City) under the supervision

of Shri Y.C. Modi, Addl. DG & Member, SIT and a report in the matter

was submitted to the Hon'ble Supreme Court on 17.11.2010. Both

448

the aforesaid reports were given to Shri Raju Ramchandran, Sr.

Advocate, who had been appointed as Amicus Curiae in the matter

by the Hon’ble Supreme Court of India. The Amicus Curiae submitted

his Interim Report in the matter to the Hon’ble Supreme Court of

India on 20.01.2011, vide which he suggested further investigation

in respect of some of the issues.

In compliance to the order passed by the Hon'ble Supreme

Court of India on 15.03.2011, to conduct further investigation into

the matter u/s 173 (8) Cr.PC, Shri Himanshu Shukla, DCP, Crime

Branch carried out further investigation 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 and

another report was submitted to the Hon'ble Supreme Court of India

on 25.04.2011. The Hon'ble Supreme Court of India handed over the

said report to the Ld. Amicus Curiae for his examination and

independent opinion.

The Ld. Amicus Curiae accordingly examined the SIT reports

and also interacted with some of the witnesses including the police

officers and submitted his report to the Hon'ble Supreme Court of

India on 25.07.2011. The Hon'ble Supreme Court of India after

careful consideration of the matter passed an order on 12.09.2011,

directed the Chairman, SIT to forward a Final Report along with the

entire material collected by the SIT to the Court which had taken

cognisance of FIR of I. CRNo. 67/2002 of Meghaninagar P.S as

required u/s 173 (2) Cr.PC of the Court.

It may be mentioned here that the Ld. Amicus Curiae has

agreed with the various recommendations made by the SIT on the

different issues inquired into/investigated by the SIT. However, the

Ld. Amicus Curiae is of the view that at this prima facie stage

offences u/s 153A(1)(a)& (b), 153B (1)(c), 166 and 505 (2) IPC are

made out against Shri Narendra Modi

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Page: 467

regarding the statement made by him in the meeting on 27.02.2002.

In this connection, as discussed, above SIT is of the view that the

offences under the aforesaid sections of law are not made out against

Shri Narendra Modi.

449

In the light of the aforesaid facts, a closure report is being

submitted for favour of perusal and orders.

(Himanshu Shukla)

DCP & IO, SIT

Gandhinagar

(emphasis supplied)

450

ANNEXURE-2

163

DETAILS OF GODHRA RIOT CASES INVESTIGATED BY SPECIAL INVESTIGATION TEAM

Sr.

No.

Police Station

CR No. and

date of

registration of

offence

Pre-SIT

No. of

accused

arrested

Pre-SIT No. of

Charge Sheet

and

Supplementary

charge sheets

Post SIT

No. of

accused

arrested

Post SIT No. of

Charge Sheet

and

Supplementary

charge sheets

Total accused

arrested

No. of accused

convicted by

Trial Court

No. of

accused

acquitted

by Trial

Court

No. of

Appeals

filed in

the

Hon’ble

High

Court

Whether the

appeals

disposed in

the High

Court or

not?

No. of

accused

convicted

by High

Court

No. of

accused

acquitted

by High

Court

No. of

Appeals

filed in

the

Hon’ble

Supreme

Court

10.

11.

12.

13.

14.

Meghaninagar

I CR

No.67/2002

(Gulbarg

Society Case)

28.02.2002

1 + 5

72 (Including 2

accused

arraigned u/s

319 Cr.PC).

Trial in case of

4 juveniles is in

progress. 7

accused died

during the trial

and 3 died after

the

pronouncement

of judgment

Pending in

the Hon’ble

High Court

---

Naroda I. CR

No.100/2002

(Naroda

Patiya case)

28.02.2002

1+3

70 (Including

2 accused

absconded

during the

trial). 7

accused died

during the

trial.

32 (2 died after

the

pronouncement

of judgment

Yes. All the

appeals

have been

disposed off

25.04.2018

16 (1

convict

out of 32

died. 13

out of the

remaining

convicts

have been

convicted

by the

High

Court and

3 accused

who have

been

acquitted

by the

Trial

Court, has

10 – All

are

pending

163

see para 84 of this judgment

451

been

convicted

by the

High

Court

Naroda I. CR

No.98/2002

(Naroda Gaon

Case)

28.02.2002

1+3

86 (1 accused

released by the

Trial Court).

Godhra Rly I.

No.09/2002

(Sabarmati

train case)

103

1+17

134 (including

3 absconding

accused). 13

accused have

been released

u/s 169 Cr.PC.

8 accused

died. 8

accused are

absconding. 4

Juvenile

accused. Total

101 accused

34 (Including 3

absconding

accused)

2 appeals

disposed

off. Filing

of appeal

against 3

absconding

accused

arrested is

progress.

31 (1

convict

died

during

the

appeal)

2 – both

are

pending

Khambholaj I

No.23/2002

(Ode case)

01.03.2002

1+2

51 (Including 1

absconding

accused). 1

accused has

been released

u/s 169 Cr.PC.

3 accused died

Yes.

3 + 1

died in

the jail

3 – All

are

pending

Khambholaj I

No.27/2002

(Ode case)

05.03.2002

48 (including

4 accused

arraigned u/s

319 Cr.PC). 6

out of 48 are

absconding

and two died.

Total 40

accused

Pending in

the

Hon’ble

High Court

Vijapur I. CR

No.46/2002

(Sardarpura

(Including

1 juvenile).

2 accused

Yes. All the

appeals

have been

disposed off

3 – All

are

pending

452

case)

02.03.2002

died during

the trial.

02.01.2012.

Visnagar I. CR

No.60/2002

(Dipda

Darwaja case)

28.02.2002

1+2

85 (Including

2 accused

arraigned u/s

319 Cr.PC

(Including

juvenile).

1 accused

died

during the

trial.

All the

appeals are

pending in

the

Hon’ble

High Court

Prantij I. CR

No.26/2002

(British

National

case)

28.02.2002

Appeal is

pending in

the Hon’ble

High Court