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 Ahmedabad1 in Criminal Revision Application No. 205/2014. Even though the explanation offered in the application for condonation of delay is blissfully vague and bereft Signature Not Verified Digitally signed by of any material facts and particulars, keeping in mind the NEETU KHAJURIA Date: 2022.06.24 11:03:23 IST Reason: 1 for short, “the High Court” 2 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 appellant2 – 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 2 hereinafter, “appellant” means Zakia Ahsan Jafri only 3 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 Team3 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” 4 PREFACE

4. Shorn of unnecessary factual matrix, this matter essentially emanates from the sui generis directions given by this Court on 27.4.20094 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 27.4.20095), directed the SIT appointed by it in terms of the order dated 26.3.20086, 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 4 2009 SCC Online SC 6 - Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors.

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

Criminal Procedure7, 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” 6 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 59th 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 7 National Human Rights Commission8 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 9.10.20039.

(c) This Court vide order dated 21.11.200310, 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” 9 “ORDER W.P.(Crl.) No. 109/2003 An affidavit has been filed by the Chief Secretary to the Government of Gujarat on 7 th 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 17th 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.

…..” 10 “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: -

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:

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:

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) 9

(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 10 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 Code11 and Section 6 of the Commission of Inquiry Act, 195212 and also under various provisions of the Gujarat Police Act, 195113 and the Human Rights Act, 199114.

(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 11 for short, “ IPC ” 12 for short, “the 1952 Act” 13 for short, “the 1951 Act” 14 for short, “the 1991 Act” 11 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: -

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:-

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) 16

(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 27.4.200917, when this Court passed the following order: -

(l) Nevertheless, vide judgment dated 1.5.200918, 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: -

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:

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 21 witnesses depose freely and fearlessly before the court, in case of witnesses following steps shall be taken:

(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 27.4.200919, 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 19 supra at footnote Nos. 4 and 17 23 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: -

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 26 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: -

(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 29 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 23.11.201020, 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: -

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:

…..” (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: -

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 41 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 8th 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 42 161 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. 43 109/2003, commending the efforts of the SIT as well, while relieving the Chairman of the SIT from his responsibility. The said order reads thus: -

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.” 44 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.27 , to buttress these points. As held in Abhinandan Jha & Ors. vs. Dinesh Mishra28 , 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 27 (2019) 8 SCC 27 (paras 7, 17, 27, 28, 32, 33 and 42) 28 AIR 1968 SC 117 = 1967 (3) SCR 668 (at page 678) (para 15 and 21) 45 powers under Section 190(1)(c) of the Code including to direct further investigation.

(c) The appellant in the protest petition had articulated broad grounds on which final SIT report was being opposed. The same read thus: -

Such substance exists against all the accused. There 46 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 47 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 48 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 49 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: -

(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 Jha29 and Popular Muthiah vs. State represented by Inspector of Police30.

(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 29 supra at footnote No. 28 30 (2006) 7 SCC 296 (paras 21 and 54) 52 of the accusation. Reliance was placed on State of Gujarat vs. Afroz Mohammed Hasanfatta31 .

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

(2019) 20 SCC 539 (paras 16, 17, 22 and 39) 32 for short, “SIB” 53

(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 54 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:

(5) Ahmedabad city recorded 14 Incidents of targeted Violence even as the VHP and its members continued making incendiary and inflammatory speeches.

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 Tribunal33, 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” 57 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 Jha34 and Bhagwant Singh vs. Commissioner of Police & Anr.35 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 12.9.201136. The real intent and purpose of the direction issued by this Court in the earlier round has been 34 supra at footnote No. 28 35 supra at footnote No. 21 36 supra at footnote No. 26 58 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 Delhi37 and Gura Singh vs. State of Rajasthan38 .

(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 37 AIR 1955 SC 196 = 1955 1 SCR 1150 (at pages 1155-1157) 38 (2001) 2 SCC 205 (para 6) 59 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.39 .

(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 39 (2008) 2 SCC 492 (para 22) 60 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: -

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 62 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 Punjab40 . Whereas the issue regarding admissibility of extra 40 (1977) 4 SCC 452 63 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 64 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:

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, 66 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 67 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 68 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 69 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 70 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 71 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 72 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 74 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 75 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 Singh41 and State (Delhi Admn .) vs. I.K. Nangia & Anr.42 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 41 (1977) 4 SCC 39 42 (1980) 1 SCC 258 (para 6) 76 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 78 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 Kerala43 , Nirmal Singh Kahlon vs. State of Punjab & Ors.44 , R. Venkatkrishnan vs. Central Bureau of 43 (2001) 7 SCC 596 (paras 20, 23 and 25) 44 (2009) 1 SCC 441 (paras 67 and 68) 79 Investigation45 and State (NCT Delhi) vs. Shiv Charan Bansal & Ors.46.

(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 Thogadia47 and Amish Devgan vs. Union of India & Ors.48 to contend that incitement to violence is punishable offence.

(ww) The SIT has not enquired into the evidence regarding 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 45 (2009) 11 SCC 737 46 (2020) 2 SCC 290 47 (2004) 4 SCC 684 (paras 7 and 8) 48 (2021) 1 SCC 1 (paras 20, 37, 75, 87, 88, 103 and 107) 80 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 register a criminal case against Sandesh newspaper. Even the SIB 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 81 highlighted the pretentious writing and propaganda disseminated by VHP and also widely reported in “The Express” on 24th March, allegedly circulated by the Bajrang Dal President – Hastimal, who is said to have been arrested. The theme of such publication was:

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 82 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 83 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: -

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 Women54, 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) 52 (1988) 3 SCC 609 (paras 36 to 41) 53 W.P. No. 41791/2006 (with connected cases) decided on 5.2.2021 54 Ninth Report of the Committee on Empowerment of Women (2002-2003) concerning violence against women during riots (July-August 2002) 87 (ddd)Reliance is placed on Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat & Ors.55, Zahira Habibulla Sheikh (5) & Anr.

vs. State of Gujarat & Ors.56 and Dayal Singh & Ors. vs. State of Uttaranchal57 .

(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) 56 (2006) 3 SCC 374 (paras 4, 5 and 9) 57 (2012) 8 SCC 263 (paras 1, 21, 22, 25 to 28, 32 and 47.5) 88 (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 89 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 27.4.200958 and the SIT had submitted its final report to this Court in September, 2011.

(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 91 of Delhi59 . There is no investigation whatsoever regarding existence of conspiracy despite the same being revealed from Tehelka Tape itself. Reliance is also placed on Firozuddin Basheeruddin60 and Nirmal Singh Kahlon61 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) 60 supra at footnote No. 43 61 supra at Footnote No. 44 92 (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.62 . 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) 93 (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 12.9.201163. 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 Hasanfatta64 and S.K. Sinha65.

(ttt) The appellant was relying on undisputed documents available in the SIT record, which alone were sufficient to issue summons for 63 supra at footnote No. 26 64 supra at footnote No. 31 65 supra at footnote No. 39 94 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: -

(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 27.4.200968, 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 68 supra at footnote Nos. 4 and 17 98 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 1.5.200969, 12.9.201170 and as recently as, 13.4.2017.

(c) In the writ petition filed before the High Court, relief claimed 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 27.4.200971 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 12.9.201172, 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.

(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 12.9.201173 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 73 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 12.9.201174. Even the Magistrate was bound by the remit applicable to the SIT in view of the sui generis procedure adopted by this Court 74 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 12.9.201175 in the special leave petition preferred by the appellant. Reliance has been placed on Vishnu Kumar Tiwari76

(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 27.4.200977) 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 75 supra at footnote No. 26 76 supra at footnote No. 27 (paras 7, 17, 27, 32, 33 and 42) 77 supra at footnote Nos. 4 and 17 104 12.9.201178, 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 78 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.

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

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

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

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.

(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 12.9.201179 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 79 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 12.9.201180, 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.

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.81 and again between the same parties82.

(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 82 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.

(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 register pertaining to riot cases in Gujarat or in the complaint filed 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 12.9.201183, 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 83 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.

(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.

(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.

(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 12.9.201184 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 84 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 statement85. 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 85 R.K. Anand vs. Registrar, Delhi High Court, ( 2009) 8 SCC 106 and Rajat Prasad vs. Central Bureau of Investigation , (2014) 6 SCC 495 132 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:

anti-Muslim prejudice/bias.

2. Allegation of A-1 on the Petitioner witnessed police SIT “collaborated post-mortem of afternoon of officers in the barracks on with accused the dead bodies 27.2.2002 leave while Ahmedabad persons and at Godhra instead of going burned. rewarded Railway Station directly to handsomely”. Role Airport, of SIT should be deliberately took investigated.

(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 1.5.200986 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 86 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 1.5.200987 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 87 supra at footnote No. 18 141 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 12.9.201188.

(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, 88 supra at footnote No. 26 142 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.

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 145 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 147 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.89 , 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 89 (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.

(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 152 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 153 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 154 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 155 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.

(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.90 .

(jjjj) In other words, even if the material collated during the investigation discloses suspicion, that may not be sufficient for the 90 (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.

(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.91, M.C. Abraham & Anr. vs. State of Maharashtra & Ors.92 and Shariff Ahmed & Ors. vs. State (NCT of Delhi )93.

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 91 (1980) 1 SCC 554 92 (2003) 2 SCC 649 93 (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. 1692/201194. 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.

(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 Setalvad95, dealing with the powers of police officer to seize certain property in the course of investigation 95 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.

(c) In substance, it is argued on behalf of the State of Gujarat that the complaint dated 8.6.2006 had to be proceeded with only because of the indulgence shown by this Court on 27.4.200996 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 96 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.

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. Rishbund97.

In this decision, the Court, inter alia, noted thus: -

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 Singh98 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 investigation99. 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 98 supra at Footnote No. 57 99 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. Hasanfata100 including in the case of Ramesh Singh101 and I.K. Nangia102.

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 26.3.2008103 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 27.4.2009104, 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 12.9.2011105 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.

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 12.9.2011106, 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 7.2.2013107, 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 12.9.2011108, 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 27.4.2009109, 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: -

(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 3rd 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.

(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 28th 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: -

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.

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 7.2.2013110, 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 26.3.2008111 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 7.2.2013112 by 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.

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 report113, 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 report114 reads thus:-

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 detail115.

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 thus116: -

“…..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.

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 255-257117, the SIT has analyzed the materials collected during investigation indicative of the falsity of claim set up by Mr. Sanjiv Bhatt and noted thus: -

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 Court118 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 thus119: -

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-wise120. 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 thus121: -

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 thus122: -

32. Further analysis regarding the allegation of intimidation of Mr. R.B. Sreekumar, Additional DGP, can be noted as follows123: -

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 Court124. 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 434125. 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 15.3.2011126.

However, for the sake of convenience, we are appending the relevant extract127 thereof and have highlighted some pertinent portions, to this judgment to be regarded as part of this judgment128. 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;

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.

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: -

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. Hodge128A, adverting to the address by Baron Alderson about the dexterity and ability of ingenious mind to create theories, where he had said: -

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 Army130, 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 conspiracy131. 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 Minister133, in the following words: -

49. Reverting to the allegation coined as “Allegations Carried by Tehelka Magazine”, the final report deals with the same as follows134:-

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: -

(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. Anand135 and Rajat Prasad136. 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 others136A. 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 words137:

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 -

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.

57. The allegation [No. (ii)] regarding parading of dead bodies, has been dealt with by the SIT with in the following words138: -

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.

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 words139: -

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 269140. The same reads thus: -

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.

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 thus141:

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.

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: -

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- 439142, 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 310-312143 and again in reference to the observations made by the learned Amicus Curiae, at page 456144. 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 follows145: -

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 145 pages 310-312 of original copy of the final report forming part of Convenience Compilation of respondent No. 2 268 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.

AT&T and M/s. Cellforce, who had the protocol of maintaining the electronic call records for one year only146. 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:

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 pages 320-325 of original copy of the final report forming part of Convenience Compilation of respondent No. 2 277 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: -

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 words149: -

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 pages 269-271 of original copy of the final report forming part of Convenience Compilation of respondent No. 2 280 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 words150: -

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 officials151, 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 words152: -

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.

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 1.5.2009152A.

74. Similarly, the allegation No. (xvii) about failure to take action against the print media has been discarded by the SIT153 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 329-332154] and meeting held by Mr. Kalubhai Hirabhai Maliwad [allegation No. (xxxii) discussed at pages 332-337155], 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 opinion156 (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 Kahlon157, 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-2157A 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 Jha158, Bhagwant Singh159, Popular Muthiah160 and Vishnu Kumar Tiwari161. 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.

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.

ANNEXURE-1162

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Page: 398 ❖ Opinion of Shri Raju Ramchandran, Amicus Curiae:-

The report shall be submitted by 25th April, 2011. List the case on 27th 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:-

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 The SIT has come to the 12. This is one of the is that Shri conclusion that the circumstances which Narendra Modi action of Chief Minister indicate that the did not visit the appeared to be Hon’ble Chief Minister riot affected areas discriminatory. had not taken enough of Ahmedabad steps to ensure that immediately, riots in Ahmedabad though he visited City were immediately Godhra on the 315 day of the controlled by his direct incident. intervention.

XII. It is alleged The SIT has come to the 13. The observation of that on 01-03- conclusion that the Shri Modi in a 2002, Shri reaction of the Chief television interview on Narendra Modi Minister to violence at 01-03-2002 clearly said in a television Gulberg Society and indicates that there interview that the Naroda Patiya was not was an attempt to reaction of the serious. However, the justify the violence Hindus was due SIT has concluded this against the minority to the action by would not be sufficient community. This the Muslims, enough to make out a indicates a certain which seems to case against Shri Modi. approach. The justify the riot. 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:

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.

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 & 318 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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Page: 403 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:-

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 320 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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Page: 404 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.

(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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Page: 405 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 :-

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 324 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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Page: 406 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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Page: 407 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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Page: 408 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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Page: 409 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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Page: 410 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.

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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Page: 411 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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Page: 412 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 1st, 2nd & 3rd 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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Page: 413 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.

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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Page: 414 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:-

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, 342 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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Page: 415 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 343 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 344 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:-

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Page: 416 (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-

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 346 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 of

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Page: 417 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.

(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:

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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Page: 420 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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Page: 421 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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Page: 422 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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Page: 423 (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.

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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Page: 424 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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Page: 425 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.

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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Page: 426 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:-

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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Page: 432 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:

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:

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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Page: 433 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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Page: 434 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:

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:-

rewarded for their indicate that 13 officers CP, Sector-Il and Shri support during the post had been rewarded with P.B. Gondia, the then Godhra riots. postings for their support DCP, Zone- IV it does to CM. However, the SIT not appear to be a had concluded that the simple case of mere conduct of Shri M.K. dereliction of duty, Tandon, the then Jt.CP, section 304A IPC would Sector-Il, Ahmedabad, be squarely attracted in was not satisfactory and such a case.

therefore, Departmental

2. In so far as Action be taken against promotion of other IAS them.

and IPS officers are concerned, the view taken by SIT seems to be acceptable.

IX. The allegation is that 1. The SIT has concluded 1. The investigative the Govt. of Gujarat has that the trials in both the agencies let off the been seriously indicted- cases are over. Some accused in Bilkisbano by this Hon'ble Court due accused have beencase. If the CBI had not to fresh investigation in convicted and somestepped in, the accused Bilkisbano case by CBI accused have beenwould have gone and retrial of Best Bakery acquitted and the unpunished. Similarly, Case outside the State of appeals are pendingin Best Bakery case, it Gujarat. before the High Court. appears that the prosecution was done

2. The SIT has in a shoddy manner to recommended that the protect the accused.

into by the Investigating Branch intentionally did within a time bound Officers Gulberg not examine the cell manner.

XXV: The allegation is The SIT has found this 1. Shri M.K. Tandon, that the police at Gulberg allegation to be incorrect. the then Jt. CP, Sector-

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(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.

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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:-

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.

Facts/Sequence of events establish during investigation:

Similarly, no meeting of SHOs/chalking out of law and order plan was done by Shri P. B.Gondia, DCP.

(C) Shri Tandon was allotted 1 Coy of State Reserve Police (SRP) for the Bandh day, which was distributed among 3 DCsP (1 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.

(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:

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:-

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:

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.

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.

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.

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":

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)

(c) IPC is made out.

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:

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:

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:

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.

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-2163 DETAILS OF GODHRA RIOT CASES INVESTIGATED BY SPECIAL INVESTIGATION TEAM Sr. Police Station Pre-SIT Pre-SIT No. of Post SIT Post SIT No. of Total accused No. of accused No. of No. of Whether the No. of No. of No. of No. CR No. and No. of Charge Sheet No. of Charge Sheet arrested convicted by accused Appeals appeals accused accused Appeals date of accused and accused and Trial Court acquitted filed in disposed in convicted acquitted filed in registration of arrested Supplementary arrested Supplementary by Trial the the High by High by High the offence charge sheets charge sheets Court Hon’ble Court or Court Court Hon’ble High not? Supreme Court Court

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

1. Meghaninagar 46 1+5 26 6 72 (Including 2 24 39 17 Pending in --- --- --