Rejoinder Affidavit filed by Teesta Setalvad on 22 ... - People's watch
Rejoinder Affidavit filed by Teesta Setalvad on 22 ... - People's watch
Rejoinder Affidavit filed by Teesta Setalvad on 22 ... - People's watch
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IN THE SUPREME COURT OF INDIA<br />
EXTRA-ORDINARY ORIGINAL JURISDICTION<br />
CRL.M.P.19816 OF 2009<br />
IN<br />
WRIT PETITION (CRL) NO.37-52 OF 2002<br />
IN THE MATTER OF:<br />
FR.CEDRIC PRAKASH AND OTHERS<br />
PETITIONERS<br />
VERSUS<br />
STATE OF GUJARAT AND OTHERS<br />
RESPONDENTS<br />
AFFIDAVIT IN REJOINDER ON BEHALF OF THE PETITIONER<br />
1. I, <str<strong>on</strong>g>Teesta</str<strong>on</strong>g> <str<strong>on</strong>g>Setalvad</str<strong>on</strong>g>, daughter of Atul <str<strong>on</strong>g>Setalvad</str<strong>on</strong>g>, age 48 years,<br />
residing at Nirant, Juhu Tara Road, Mumbai solemnly state as<br />
under:<br />
2. I am the Petiti<strong>on</strong>er no.5 in the present case and I am fully aware of<br />
the facts circumstances of the present case and am duly competent<br />
to swear and depose as under.<br />
3. I say that I have g<strong>on</strong>e through the affidavit in reply <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the State<br />
of Gujarat. Unless specifically admitted <str<strong>on</strong>g>by</str<strong>on</strong>g> me hereunder, each and<br />
every allegati<strong>on</strong> made therein is denied as false.<br />
4. Before I deal with the c<strong>on</strong>tenti<strong>on</strong>s made in the affidavit in reply, I<br />
would like to state my understanding of the directi<strong>on</strong>s of this<br />
H<strong>on</strong>’ble Court to the State of Gujarat with respect to the present<br />
1
affidavit. The directi<strong>on</strong>s issued <strong>on</strong> April 6, 2010 were permissi<strong>on</strong> to<br />
resp<strong>on</strong>d to the applicati<strong>on</strong> <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the Petiti<strong>on</strong>ers and the resp<strong>on</strong>se<br />
of the SIT to the applicati<strong>on</strong>. The Petiti<strong>on</strong>ers do not have copies of<br />
the SIT resp<strong>on</strong>se to the applicati<strong>on</strong>. My resp<strong>on</strong>se therefore is<br />
based <strong>on</strong> my understanding of the resp<strong>on</strong>ses in the c<strong>on</strong>text of the<br />
orders passed <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court and the manner in which the<br />
State has dealt with the same in its affidavit-in-reply.<br />
5. I humbly pray that in view of the limited scope of the reply that the<br />
State was permitted to file, all other irrelevant<br />
c<strong>on</strong>tenti<strong>on</strong>s/allegati<strong>on</strong>s must be expunged and taken off the record<br />
and the State should be directed to file a fresh affidavit focusing <strong>on</strong><br />
the issues raised presently and taking out slanderous allegati<strong>on</strong>s<br />
made against me pers<strong>on</strong>ally.<br />
6. My understanding of the reas<strong>on</strong>s for appointment of a SIT <str<strong>on</strong>g>by</str<strong>on</strong>g> this<br />
H<strong>on</strong>’ble Court are as under:<br />
(i)<br />
FIRs had been wr<strong>on</strong>gly and incompletely recorded &<br />
names of accused officers & those politically c<strong>on</strong>nected had<br />
been dropped/excluded<br />
(ii)<br />
That inquiries / investigati<strong>on</strong>s had not been adequately<br />
carried out especially regarding the involvement of police<br />
officers, civil servants and politically influential individuals in<br />
these offences both <str<strong>on</strong>g>by</str<strong>on</strong>g> way of actual involvement and <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
way of complicity: deliberate inacti<strong>on</strong>;<br />
(iii)<br />
That this deliberate and criminal negligence and n<strong>on</strong>performance<br />
of duties enjoined <str<strong>on</strong>g>by</str<strong>on</strong>g> law, <strong>on</strong> part of senior<br />
officers and authorities of the State need hardnosed<br />
independent scrutiny;<br />
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(iv)<br />
That the investigati<strong>on</strong>s had completely ignored and stopped<br />
short of bringing to light the large c<strong>on</strong>spiracy in the<br />
unprecedented State-wide organized violence, violence,<br />
with many comm<strong>on</strong> features and a pattern to it, which<br />
reas<strong>on</strong>ably pointed to systemic involvement of the entire<br />
apparatus of the Government of Gujarat.<br />
(v)<br />
That evidence, documentary and otherwise, collected <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
official channels both before the tragedy of 2002 (reports of<br />
State Intelligence, Gujarat and Uttar Pradesh and other<br />
states) and after (affidavits of police officers before the<br />
Nanavati Shah Commissi<strong>on</strong> and Tehelka’s Operati<strong>on</strong><br />
Kalank) suggest that this c<strong>on</strong>spiracy could extend even prior<br />
to February 27,2002 when the tragic burning of the S-6<br />
Coach of the Sabarmati Express at Godhra took place;<br />
(vi)<br />
(vii)<br />
There were threats to and intimidati<strong>on</strong> of witnesses<br />
Prosecutors were appointed who had earlier appeared for<br />
the accused and who were associated with organizati<strong>on</strong>s<br />
who were involved in the offences,<br />
(viii) Bail Orders granted out of turn <str<strong>on</strong>g>by</str<strong>on</strong>g> the lower and higher<br />
courts in Gujarat ensured that that these politically influential<br />
accused moved free in areas and neighborhoods of their<br />
influence that were also the sites of the worst carnages.<br />
7. I say and submit that the c<strong>on</strong>tenti<strong>on</strong>s of the government of Gujarat<br />
at paragraph 2 of its affidavit dated April 16, 2010 are wr<strong>on</strong>g in fact<br />
and belie the history of this litigati<strong>on</strong>. The resp<strong>on</strong>dent government<br />
of Gujarat has c<strong>on</strong>sistently resisted efforts at transparency and<br />
accountability and deliverance of justice and this has been taken<br />
into account <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court <strong>on</strong> many occasi<strong>on</strong>s during the<br />
3
course of the proceedings of the present set of petiti<strong>on</strong>s as well as<br />
in c<strong>on</strong>cluded cases namely Zahira Habibullahs Shaikh v/s state of<br />
Gujarat reported in 2004 4 SCC 138 and much more recently in a<br />
related matter of Rubabuddin Shaikh v/s State of Gujarat reported<br />
in JT 2010 (1) SC 99.<br />
8. I say and submit that unlike the c<strong>on</strong>tenti<strong>on</strong>s laid down in<br />
paragraphs 2, 8 and in other places in the affidavit in reply, where<br />
the state would like to suggest that they have, post the genocidal<br />
carnage of 2002, worked assiduously towards the deliverance of<br />
justice and besides, complied with the orders of this H<strong>on</strong>’ble Court,<br />
the experience of those suffering at the hands of an unrepentant<br />
state are the diametric opposite. I say and submit that <strong>on</strong> repeated<br />
occasi<strong>on</strong>s the state of Gujarat has misled this H<strong>on</strong>’ble Court <strong>on</strong><br />
affidavit and I draw attenti<strong>on</strong> especially to the order of this H<strong>on</strong>’ble<br />
Court passed <strong>on</strong> July 12, 2004 where it is stated in black and white<br />
that misleading set of bail orders were <str<strong>on</strong>g>filed</str<strong>on</strong>g> to give an incorrect<br />
picture to this H<strong>on</strong>’ble Court <strong>on</strong> the facts <strong>on</strong> the ground. This had<br />
led the amicus curiae then to actually get all bail orders (of<br />
Sessi<strong>on</strong>s courts and the High Court) translated and thereafter<br />
submit a detailed applicati<strong>on</strong> to this H<strong>on</strong>’ble Court <strong>on</strong> July 12, 2004<br />
(that was treated as an applicati<strong>on</strong>). I say and submit the order of<br />
this H<strong>on</strong> Court dated July 12, 2004 supports the c<strong>on</strong>tenti<strong>on</strong>s made<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> the Petiti<strong>on</strong>ers. I crave leave to rely <strong>on</strong> this order to establish this<br />
point.<br />
9. I say and submit that, c<strong>on</strong>trary to the averment in paragraph 2 of<br />
the affidavit, the government of Gujarat has always objected to the<br />
genuine and b<strong>on</strong>afide applicati<strong>on</strong>s of the hapless victims. This is<br />
4
true with the <strong>on</strong>going trials whether it be applicati<strong>on</strong>s under secti<strong>on</strong><br />
319 of the Code of Criminal Procedure (referred to as the Code) to<br />
enable the impleading of new accused, or under secti<strong>on</strong> 173(8) of<br />
the Code for further investigati<strong>on</strong>.<br />
I vehemently deny the averment in paragraph 3 of the said affidavit<br />
and state that there is no questi<strong>on</strong> of attacking Gujarat. The<br />
government of a state (Gujarat) does not mean the Gujarati people.<br />
The act of enabling justice to poor cannot be termed as an ulterior<br />
motive.<br />
Specifically, the state has admitted the truth in paragraph 4 of their<br />
affidavit that the SIT ”was c<strong>on</strong>stituted in spite of the c<strong>on</strong>tenti<strong>on</strong> of<br />
the state government that the investigati<strong>on</strong>s c<strong>on</strong>ducted <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
Gujarat police is legal, valid and thorough.” Therefore, their<br />
c<strong>on</strong>tenti<strong>on</strong> thereafter made in paragraph 2 that the state of Gujarat<br />
had “never objected to or opposed to any prayers reas<strong>on</strong>ably made<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> any of the parties or any suggesti<strong>on</strong>s coming from the amicus<br />
curiae to unearth the truth”, is c<strong>on</strong>tradictory to their above<br />
statement, unless the state still maintains that the c<strong>on</strong>stituti<strong>on</strong> of the<br />
SIT was unreas<strong>on</strong>able. Most surprisingly, in paragraph 3 of the<br />
affidavit of the State of Gujarat, it is stated that “… there are several<br />
rumours and false speculati<strong>on</strong>s floated <str<strong>on</strong>g>by</str<strong>on</strong>g> the present applicant and<br />
other vested interest groups regarding riots in 2002. The State of<br />
Gujarat was also not averse to getting such rumours and<br />
speculati<strong>on</strong>s examined <str<strong>on</strong>g>by</str<strong>on</strong>g> a independent body and therefore not<br />
<strong>on</strong>ly did not object but agreed for nine major cases identified <str<strong>on</strong>g>by</str<strong>on</strong>g> this<br />
H<strong>on</strong>’ble Court being further investigated <str<strong>on</strong>g>by</str<strong>on</strong>g> a neutral body ….”,<br />
which tantamount to saying that the SIT was c<strong>on</strong>stituted <str<strong>on</strong>g>by</str<strong>on</strong>g> this<br />
H<strong>on</strong>’ble Court to investigate into mere rumours and false<br />
5
speculati<strong>on</strong>s and that this H<strong>on</strong>’ble Court undertook an<br />
unprecedented course in the pursuit of public justice <strong>on</strong> such flimsy<br />
grounds! (The counter to the logic herein is dealt with further in<br />
paragraph 14 hereafter).<br />
10. I further say and submit that the government of Gujarat is<br />
misrepresenting facts in paragraphs 5 (ii) and (v) of its affidavit<br />
stating that our applicati<strong>on</strong> for the re-c<strong>on</strong>stituti<strong>on</strong> of the SIT has<br />
“come at a peculiar stage” or “is a belated attack <strong>on</strong> the SIT.” I wish<br />
to state humbly and simply that the Petiti<strong>on</strong>ers herein and the<br />
victims of the genocide had co-operated fully with the SIT and given<br />
them detailed informati<strong>on</strong> about the attacks and violence. Through<br />
the process of recording of evidence and complaints of the<br />
behaviour of Gujarat officers were brought to the attenti<strong>on</strong> of the<br />
SIT <str<strong>on</strong>g>by</str<strong>on</strong>g> witnesses immediately in writing. It was still a shock<br />
however to find that, after final investigati<strong>on</strong> reports were <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
the SIT in certain cases, <strong>on</strong>e discovered the manner in which SIT<br />
was c<strong>on</strong>ducting itself and there were serious c<strong>on</strong>cerns raised about<br />
the ability and willingness of the SIT to form independent<br />
judgement given the situati<strong>on</strong> in the State. The victims got a feeling<br />
that the SIT was compromised in the matter and there was an<br />
urgent need to bring the same to the notice of this H<strong>on</strong>’ble Court.<br />
Accordingly, the applicati<strong>on</strong> came to be <str<strong>on</strong>g>filed</str<strong>on</strong>g> <strong>on</strong> 23.10.2009, after<br />
we had a chance with victims and eye-witnesses to peruse the<br />
charge sheets <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT in various cases. I moreover say<br />
and submit that as has been clearly laid down in the 200 page<br />
annexures to the CrMP 19816- 19819 dated 23.10.2009, I have<br />
repeated in May 2008 itself approached the SIT with detailed and<br />
reas<strong>on</strong>ed applicati<strong>on</strong>s for further investigati<strong>on</strong>s into each of the<br />
6
trials. The first such applicati<strong>on</strong>/statement was made <str<strong>on</strong>g>by</str<strong>on</strong>g> me <strong>on</strong><br />
9.5.2008 and thereafter in Tabular Presentati<strong>on</strong>s (Trial Wise) as<br />
specifically directed <str<strong>on</strong>g>by</str<strong>on</strong>g> Chairpers<strong>on</strong> Dr R.K. Raghavan dated<br />
29.5.2008 . I say and submit that all these have been faithfully<br />
annexed to the Applicati<strong>on</strong> and yet the fact that the government of<br />
Gujarat has ignored these vital aspects and c<strong>on</strong>centrated solely <strong>on</strong><br />
defaming witness testim<strong>on</strong>ies and de-railing the correcti<strong>on</strong>al path of<br />
justice belies their malicious motives.<br />
I say and submit that it is irresp<strong>on</strong>sible of the government of<br />
Gujarat to make baseless allegati<strong>on</strong>s of the “timing of this<br />
applicati<strong>on</strong>.” I repeat that the government itself has chosen to wake<br />
up six m<strong>on</strong>ths after it was field <strong>on</strong> October 23, 2010. I also say and<br />
submit that as we have stated both in our applicati<strong>on</strong> and the<br />
additi<strong>on</strong>al affidavit we had kept abreast of the SIT investigati<strong>on</strong> and<br />
did have an inkling that things were going wr<strong>on</strong>g m<strong>on</strong>ths after the<br />
SIT was appointed. I say and submit that witness survivors did<br />
bring to our notice certain issues about the manner in which 161<br />
statements were being recorded, the hostile and aggressive<br />
behaviour of the Investigating Officers who were all from Gujarat,<br />
the coercive methods used including attempts at videography that<br />
sometimes were forced up<strong>on</strong> witnesses and sometimes resisted <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
witnesses. I crave leave to attach as Annexure A Colly a<br />
translated copy of such a sample of letters from witnesses of<br />
various cases right from May 2009 <strong>on</strong>wards. I say and submit that<br />
right from the start Chairpers<strong>on</strong> of the SIT was kept abreast of such<br />
developments including <str<strong>on</strong>g>by</str<strong>on</strong>g> us directly. I crave leave to reproduce<br />
these communicati<strong>on</strong>s as and when it becomes necessary.<br />
7
I say and submit therefore that the insinuati<strong>on</strong> in the affidavit of the<br />
State that the timing of the applicati<strong>on</strong> for the re-c<strong>on</strong>stituti<strong>on</strong> of the<br />
SIT is belated or motivated is completely false and baseless. I<br />
further say and submit that petiti<strong>on</strong>ers were not given a copy of the<br />
progress reports submitted <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT to this H<strong>on</strong>’ble Court.<br />
Therefore, the petiti<strong>on</strong>ers had no idea about the progress or work<br />
d<strong>on</strong>e <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT till charge sheets were <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT in some of<br />
the cases. When scrutiny of these charge sheets disclosed that the<br />
SIT had not d<strong>on</strong>e a complete investigati<strong>on</strong> and had omitted to<br />
investigate the larger c<strong>on</strong>spiracy and had not collected the<br />
evidence against the resp<strong>on</strong>sible senior police officers and<br />
influential political pers<strong>on</strong>s of the ruling establishment, the<br />
petiti<strong>on</strong>ers still believed that the SIT will thereafter do the needful<br />
under Secti<strong>on</strong> 173(8) of the Code, as was also directed in the order<br />
dated May 01, 2009 passed <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court. I say and<br />
submit that it is pertinent to menti<strong>on</strong> here that the order dated May<br />
01, 2009 was passed solely <strong>on</strong> the basis of the progress reports<br />
submitted <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT to this H<strong>on</strong>’ble Court, and to which reports the<br />
petiti<strong>on</strong>ers were not privy to and had no access to, and the<br />
petiti<strong>on</strong>ers resp<strong>on</strong>ses could not be brought to bear <strong>on</strong> the order<br />
dated May 01, 2009 of this H<strong>on</strong>’ble Court.<br />
I further say and submit that our belief was violated <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
when the SIT was formally requested to complete the remaining<br />
investigati<strong>on</strong>.<br />
For example, witnesses had made a written applicati<strong>on</strong> to the<br />
competent court for ordering further investigati<strong>on</strong> in the case of<br />
Gulberg Society. The court had directed the SIT vide its order dated<br />
8
September 07, 2009 to c<strong>on</strong>duct further investigati<strong>on</strong>s under Secti<strong>on</strong><br />
173(8) of the Code <strong>on</strong> the material grounds set forth in the<br />
applicati<strong>on</strong> meriting such further investigati<strong>on</strong>.<br />
Similarly, an applicati<strong>on</strong> was made <str<strong>on</strong>g>by</str<strong>on</strong>g> Dildar Umrav Saiyed & another<br />
<strong>on</strong> June 17, 2009 in Naroda Patiya case to the Chairman, SIT for<br />
c<strong>on</strong>ducting further investigati<strong>on</strong>s under Secti<strong>on</strong> 173(8) of the Code<br />
<strong>on</strong> the counts menti<strong>on</strong>ed in that applicati<strong>on</strong>. When m<strong>on</strong>ths passed<br />
and the SIT did not take any c<strong>on</strong>crete steps <strong>on</strong> the said applicati<strong>on</strong>,<br />
another applicati<strong>on</strong> <strong>on</strong> same grounds was <str<strong>on</strong>g>filed</str<strong>on</strong>g> before the competent<br />
Court for ordering the SIT to c<strong>on</strong>duct further investigati<strong>on</strong>s under<br />
Secti<strong>on</strong> 173(8) of the Code. The SIT strangely submitted before the<br />
court that they were c<strong>on</strong>ducting investigati<strong>on</strong>s <strong>on</strong> the said points.<br />
I say and submit that despite pointing out the defects, lacunae and<br />
incompleteness in the charge-sheet <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT, the SIT has<br />
been dragging its feet raising serious doubts about its credibility<br />
given the resp<strong>on</strong>sible task assigned to it <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court.<br />
11. I say and submit that the irresp<strong>on</strong>sible use of terms like “undisclosed<br />
ulterior object” “vested interests” etc against me pers<strong>on</strong>ally and the<br />
organizati<strong>on</strong> that I represent is nothing short of a) intimidati<strong>on</strong> of a<br />
human rights defender assisting victim survivors and eyewitnesses in<br />
the pursuit of justice especially dangerous and ominous when the<br />
intimidati<strong>on</strong> comes from a powerful state backed <str<strong>on</strong>g>by</str<strong>on</strong>g> m<strong>on</strong>ey and<br />
power; b) a crude attempt at slander and defamati<strong>on</strong>; c) an effort to<br />
raise public sentiments and hatred towards a struggle for justice and<br />
reparati<strong>on</strong>.<br />
9
12. I moreover say and submit that there is nothing substantive or<br />
relevant in the affidavit that any way alters the situati<strong>on</strong> and is in fact<br />
an attempt to browbeat the highest court in the land. I further say and<br />
submit that it is also curious why such an affidavit has been <str<strong>on</strong>g>filed</str<strong>on</strong>g> at<br />
this stage of these proceedings when our applicati<strong>on</strong> has been <str<strong>on</strong>g>filed</str<strong>on</strong>g><br />
in October 2009 and c<strong>on</strong>sidered <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court since<br />
December 2009.<br />
13. I say and submit that the c<strong>on</strong>tenti<strong>on</strong>s made in paragraphs 3, 5, 12,<br />
<strong>22</strong>, 33, 34, 38 and 39 are all malicious and misleading and<br />
completely unsubstantiated. I say and submit that it is irresp<strong>on</strong>sible<br />
and unaccountable for a state to make loose allegati<strong>on</strong>s such as the<br />
<strong>on</strong>es made without substantiating them with material facts. I say and<br />
submit that untruth and slander seem to be the <strong>on</strong>ly method and<br />
means used <str<strong>on</strong>g>by</str<strong>on</strong>g> the state of Gujarat as they have repeatedly resorted<br />
to these practices and c<strong>on</strong>tinue to resort to such tactics to this day.<br />
14. I say and submit that the c<strong>on</strong>tenti<strong>on</strong>s made in paragraph 3 of the<br />
affidavit are irrelevant to the matters under c<strong>on</strong>siderati<strong>on</strong> of this<br />
H<strong>on</strong>'ble Court. I further say and submit that the fact that for the first<br />
time in the history of the country, mass crimes of such magnitude are<br />
being closely investigated and prosecuted is a victory for the rule of<br />
law and democracy in this country. I say and submit that allusi<strong>on</strong>s to<br />
“political ramificati<strong>on</strong>s” etc is a deliberate attempt of the State to<br />
obfuscate from the fact of the matter at hand which is to interrogate<br />
fairly and in a n<strong>on</strong> biased manner the wealth of documentary<br />
evidence available but which has been intenti<strong>on</strong>ally ignored <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
SIT in this case. I further say and submit that it is surprising that a<br />
state government that should be c<strong>on</strong>cerned about exemplary and<br />
10
transparent investigati<strong>on</strong> has not a word to say about the serious<br />
issues of the failure of the SIT to investigate<br />
a) Records of the Police C<strong>on</strong>trol Rooms of Gandhinagar and the<br />
Ahmedabad City Police C<strong>on</strong>trol Room<br />
b) Stati<strong>on</strong> Diaries and Other C<strong>on</strong>temporaneous and relevant r<br />
records of various c<strong>on</strong>cerned police stati<strong>on</strong>s;<br />
c) Collecti<strong>on</strong> and Analysis of Ph<strong>on</strong>e Call Records of Powerful<br />
Politicians, Senior Administrators, Policemen and Accused<br />
15. I further say and submit that this silence of the government of<br />
Gujarat in its affidavit before this H<strong>on</strong>’ble Court coincides with the<br />
silence <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT to investigate these aspects that were first<br />
brought to inexplicable silence of SIT to the issues bought up in<br />
our applicati<strong>on</strong> dated 23.10.2010. I say and submit that this<br />
reluctance to get to the root of the matter includes most significantly<br />
a) disappearance of the ph<strong>on</strong>e call records of both<br />
brutally slain former Parliamentarian Shri Ahsan Jafri and<br />
b) disappearance of the records of the mobile ph<strong>on</strong>e of<br />
the Chief Minister of Gujarat.<br />
I say and submit that free and fair investigati<strong>on</strong> ought to mean that<br />
the SIT gets to the root of laid down rules & regulati<strong>on</strong>s,<br />
procedures, etc. for preservati<strong>on</strong> of such documents, in violati<strong>on</strong> of<br />
which such a key document was destroyed. The SIT was required<br />
to investigate whether such documents were destroyed at all or is<br />
being deliberately c<strong>on</strong>cealed, and if destroyed, under whose orders<br />
the destructi<strong>on</strong> of these documents took place. I say and submit<br />
that these matters have been under the scrutiny of the H<strong>on</strong>’ble<br />
Supreme Court since 2002 itself and if during this period such<br />
11
destructi<strong>on</strong> was ordered, it speaks of high level of mala fide<br />
intenti<strong>on</strong>s and collusi<strong>on</strong> of guilty minds in protecting vital pieces of<br />
documentary evidence that could substantiate charges of criminal<br />
c<strong>on</strong>spiracy in mass murder. I say and submit that despite the<br />
difficulties in the Sessi<strong>on</strong>s trial in the Gulberg case, where the<br />
prosecutor was forced to resign, eye witnesses and survivors have<br />
deposed stating that am<strong>on</strong>g the last of several dozen desperate<br />
calls made <str<strong>on</strong>g>by</str<strong>on</strong>g> Shri Ahsan Jafri was a call made to the Chief<br />
Minister. I say and submit that witnesses have stated that vile<br />
abuse instead of reassurances greeted the aged, former<br />
Parliamentarian when he called the Chief Minister after which he<br />
gave himself up to be killed. This refusal to scrutinize documentary<br />
records thoroughly, professi<strong>on</strong>ally and with probity <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT has<br />
to be viewed in the c<strong>on</strong>text of the fact that an analysis of the ph<strong>on</strong>e<br />
call records reveal startling facts about not just who was in touch<br />
with whom but also about locati<strong>on</strong> details of powerful politicians,<br />
accused and policemen at the scenes of the carnages the day<br />
before the occurred that is the date of the Godhra tragedy, 27 th<br />
February 2002. II further say and submit that copies of the police<br />
c<strong>on</strong>trol room records and fire brigade registers further complete the<br />
somber picture and I crave leave to present these analyses as<br />
Annexure B Colly. I say and submit that there is no desire <strong>on</strong> our<br />
part to overreach the scope of this affidavit in rejoinder, but simply<br />
illustrate, in the interests of public justice, the vast and dangerous<br />
extents to which the SIT appears to have g<strong>on</strong>e, unduly influenced<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> officers of the Gujarat government in thwarting the course of<br />
justice.<br />
12
16. The superficial manner in which the SIT has c<strong>on</strong>ducted itself is<br />
stated in detail in the body of the applicati<strong>on</strong> and the additi<strong>on</strong>al<br />
affidavit <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> me. I crave leave to refer to and rely up<strong>on</strong> the<br />
same at the time of hearing of this applicati<strong>on</strong>. I say and simply<br />
that I would like to make just two points here, <strong>on</strong>e related to<br />
attempts <str<strong>on</strong>g>by</str<strong>on</strong>g> the government of Gujarat to influence the functi<strong>on</strong>ing<br />
of the SIT from the outset <str<strong>on</strong>g>by</str<strong>on</strong>g> trying to ensure that Investigating<br />
Officers with a tainted and malicious record as far as witnesses and<br />
human rights activists were c<strong>on</strong>cerned were re-inducted in a fresh<br />
process. I say and submit that this was arrested after we had<br />
written to the SIT pointing out that certain officers who were alleged<br />
to have been accused of faulty investigati<strong>on</strong>s should not find their<br />
way back into the SIT. I crave leave to rely <strong>on</strong> our corresp<strong>on</strong>dence<br />
with the SIT as and when called up<strong>on</strong> to do so.<br />
I humbly state that there is an entire nexus of criminally inclined<br />
officers working at the behest of the state government in Gujarat is<br />
a serious <strong>on</strong>e and we had so<strong>on</strong> after the appointment of SIT <strong>on</strong><br />
26.3.2008 apprised Dr Raghavan of the fact that many of the earlier<br />
officers of the Gujarat police, who’s investigati<strong>on</strong>s were found to be<br />
wanting and unreliable, revealing an unholy nexus between<br />
policeman-accused-politician were being sought to be brought in<br />
through the backdoor <str<strong>on</strong>g>by</str<strong>on</strong>g> officers of the Gujarat police who are part<br />
of the SIT. I say and submit that we c<strong>on</strong>tinue to find after a careful<br />
perusal of the charge sheets in the eight trials and the Magistrate<br />
Tamang’s report in the Ishrat Jahan extra judicial killing case, that<br />
the very officers indicted <str<strong>on</strong>g>by</str<strong>on</strong>g> Magistrate Tamang have been part of<br />
the SIT Team in the Gulberg Massacre case and the Naroda<br />
Patiya Massacre cases, two of the worst mass killings post Godhra<br />
13
in 2002. I say and submit that it is curious that those very officers of<br />
the Crime Branch, Ahmedabad city (working under Joint<br />
Commissi<strong>on</strong>er of Police, Crime, Shri Ashish Bhatia who is currently<br />
part of the SIT) who had been severely indicted for criminal<br />
behaviour are chosen <str<strong>on</strong>g>by</str<strong>on</strong>g> senior members of the SIT to assist them<br />
in these cases. I crave leave to annexe a table with the names of<br />
these officers as Annexure C.<br />
I humbly state that the averments made in this paragraph are not<br />
irrelevant as it may be observed that repeatedly, the state<br />
apparatus of the state of Gujarat has come up for indictment before<br />
this H<strong>on</strong>’ble Court more especially where the unc<strong>on</strong>stituti<strong>on</strong>al<br />
c<strong>on</strong>duct of the police machinery is c<strong>on</strong>cerned. I say and submit that<br />
c<strong>on</strong>tinued criminal misbehaviour of policemen, guided and directed<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> the state executive is likely to pose a serious impediment to the<br />
deliverance of justice unless the newly c<strong>on</strong>stituted SIT is kept<br />
sufficiently insulated and m<strong>on</strong>itored <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court.<br />
17. I say and submit that as far as averments in paragraph 4 of the<br />
affidavit are c<strong>on</strong>cerned, the SIT is today dependent <strong>on</strong> the<br />
investigati<strong>on</strong> <str<strong>on</strong>g>by</str<strong>on</strong>g> the local Gujarat police officers. The details of the<br />
investigati<strong>on</strong>s illustrate how the police have tried to safe guard the<br />
interest of the influential accused.<br />
For example, in the Gulberg Society Case, <strong>on</strong>e Manish Splender<br />
was named <str<strong>on</strong>g>by</str<strong>on</strong>g> The witness in his affidavits as well as in the police<br />
statement before the SIT but his further statement, though not<br />
recorded, was shown to have been recorded <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT. Witnesses<br />
denied recording these 161 statements during testim<strong>on</strong>ies in Court.<br />
However the SIT has, <strong>on</strong> a flimsy ground has ex<strong>on</strong>erated Manish<br />
Splender who is also the s<strong>on</strong> of the municipal corporator of the<br />
14
state’s ruling party. The witnesses have stood <str<strong>on</strong>g>by</str<strong>on</strong>g> the truth in their<br />
evidence before the court. (Imtiyaz Khan Pathan, PW No. 106, Exh:<br />
542) had named this accused in both his affidavit dated November<br />
18, 2002 as well as in the statement under secti<strong>on</strong> 161 recorded<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT <strong>on</strong> May <strong>22</strong>, 2008. A further statement shown to have<br />
been recorded <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT dated September 14, 2008 has been<br />
denied <str<strong>on</strong>g>by</str<strong>on</strong>g> this witness in his testim<strong>on</strong>y in court). Therefore<br />
applicati<strong>on</strong> u/s 319 had to be <str<strong>on</strong>g>filed</str<strong>on</strong>g> (first in the trial court and now in<br />
pending in the High Court)<br />
Applicati<strong>on</strong> u/s 319 have also been <str<strong>on</strong>g>filed</str<strong>on</strong>g> in the Odh and Deepda<br />
Darwaja trials <str<strong>on</strong>g>by</str<strong>on</strong>g> the witnesses. Ir<strong>on</strong>ically these applicati<strong>on</strong>s have<br />
all been <str<strong>on</strong>g>filed</str<strong>on</strong>g> not <str<strong>on</strong>g>by</str<strong>on</strong>g> the State of Gujarat nor <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT. The<br />
applicati<strong>on</strong>s for further investigati<strong>on</strong> also have been <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
witnesses and victims in the Odh trial, the Sardarpura trial, the<br />
Gulberg trial and the Naroda Patiya trials. I say and submit that<br />
what is worse is that the said applicati<strong>on</strong>s were str<strong>on</strong>gly opposed<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> the state of Gujarat. Hence the c<strong>on</strong>tenti<strong>on</strong>s made herein that the<br />
state is committed to the deliverance of justice are not borne out <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
facts.<br />
18. I say and submit that as far as the averments in paragraph 4 (iv)<br />
are c<strong>on</strong>cerned it needs to be clarified that when the H<strong>on</strong>'ble<br />
Supreme Court had first passed the order authorising SIT to<br />
c<strong>on</strong>tinue till trial etc, the facts regarding the complete involvement<br />
of some of the officers had not come to light or not brought to the<br />
notice of this H<strong>on</strong>’ble Court. I say and submit that I, being a<br />
resp<strong>on</strong>sible human rights activist did not find it proper to request for<br />
re-c<strong>on</strong>stituti<strong>on</strong> of the SIT at that stage as I had no pers<strong>on</strong>al bias<br />
against any officer. Following a perusal of the charge sheets in the<br />
15
cases, and our accessing of documentary evidence related to<br />
teleph<strong>on</strong>e records, fire brigade registers, and c<strong>on</strong>trol room records<br />
and analyzing the same we found the extent and depth of<br />
subversi<strong>on</strong> indulged in <str<strong>on</strong>g>by</str<strong>on</strong>g> all three officers from Gujarat included in<br />
the SIT. I humbly say that at the time of the appointment of the SIT<br />
<strong>on</strong> March 25-26,2008, it is not insignificant that the Gujarat<br />
government had come up with the list of these three officers, that<br />
the Amicus Curiae had agreed to the same and that we had, at the<br />
time itself placed our str<strong>on</strong>g objecti<strong>on</strong>s to the same <strong>on</strong> the records<br />
of this H<strong>on</strong>’ble Court.<br />
I say and submit that, referring to the CrMP 19816-19818 that is<br />
presently under c<strong>on</strong>siderati<strong>on</strong> of this H<strong>on</strong>’ble Court , some serious<br />
facts were brought to the attenti<strong>on</strong> <strong>on</strong> the background and c<strong>on</strong>duct<br />
of the three officers from Gujarat. I say and submit that it is curious<br />
that a state government that ought to have has simply not dealt with<br />
these detailed iand resp<strong>on</strong>sibly stated issues but in turn resorted to<br />
malicious, vague and unsubstantiated propaganda. I say and<br />
submit that the issues raised are<br />
i. Smt. Geetha Johri<br />
a. This H<strong>on</strong>’ble Court has seriously indicted her work<br />
and c<strong>on</strong>duct in the investigati<strong>on</strong> of the case of<br />
Sohrabuddin’s fake encounter ( Rubabuddin Shaikh<br />
v/s State of Gujarat reported in JT 2010 (1) SC 99.<br />
Her review petiti<strong>on</strong> for expunging the strictures<br />
against her in the said judgement has also been<br />
rejected.<br />
b. Her husband, Shri Anil Johri, an IFS officer, is facing a<br />
16
departmental proceeding in case of corrupti<strong>on</strong>, which<br />
was investigated <str<strong>on</strong>g>by</str<strong>on</strong>g> the CBI. The Charge Sheet was<br />
served <strong>on</strong> him in January, 2004. The State<br />
Government has clearly a handle <strong>on</strong> her to compel<br />
her to toe its line.<br />
c. She has already weaned some favour from the State<br />
Government <str<strong>on</strong>g>by</str<strong>on</strong>g> getting the Departmental Charge<br />
Sheet against her husband diluted in October, 2008<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> diminishing the evidence cited against him.<br />
Pertinently, no new facts had come to the notice of<br />
the Government at that juncture. It was also five years<br />
after the first Charge Sheet was issued.<br />
d. She has also been rewarded with an executive<br />
posting as Commissi<strong>on</strong>er of Police, Rajkot City after<br />
she botched up the investigati<strong>on</strong> of Sohrabuddin fake<br />
encounter case.<br />
e. She was the supervisory officer of the Deepda<br />
Darwaza Case of Visnagar, District Mehsana. In this<br />
case former BJP MLA from Visnagar, Shri Prahlad<br />
Gosa and a member of the Taluka Panchayat,<br />
Dahyabhai Patel were arraigned as accused pers<strong>on</strong>s<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> the trial court <strong>on</strong> the basis of statements made <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
witnesses and <strong>on</strong> an applicati<strong>on</strong> <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> witnesses not<br />
the SIT or the prosecuti<strong>on</strong>. 11 people had been killed<br />
in this incident. The 161 statements recorded <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
SIT have been exposed <str<strong>on</strong>g>by</str<strong>on</strong>g> the testim<strong>on</strong>ies of<br />
witnesses before the Trial Court.<br />
ii.<br />
Shri Shivanand Jha<br />
17
a. He was posted as the Additi<strong>on</strong>al Commissi<strong>on</strong>er,<br />
Sector – I, Ahmedabad City during the riots of 2002.<br />
He had not moved out of his office till about 11.00<br />
a.m. despite reported large scale violence within his<br />
jurisdicti<strong>on</strong>. Proof of this is found from the CDR<br />
analysis of the CD submitted <str<strong>on</strong>g>by</str<strong>on</strong>g> Mr. Rahul Sharma to<br />
the Nanavati – Shah Commissi<strong>on</strong>, which has also<br />
been submitted to the SIT. By not taking prompt<br />
acti<strong>on</strong>, he permitted the riots to grow in their intensity.<br />
Widespread rioting, looting and ars<strong>on</strong> took place in<br />
his jurisdicti<strong>on</strong>. The deaths were, however, less in<br />
number because of geographical and demographic<br />
factors. No preventive acti<strong>on</strong>s were taken <str<strong>on</strong>g>by</str<strong>on</strong>g> him<br />
during the previous night. Therefore, he is as much a<br />
party to the riots and ir<strong>on</strong>ically, his name was<br />
proposed <str<strong>on</strong>g>by</str<strong>on</strong>g> the State Government for inclusi<strong>on</strong> in the<br />
SIT.<br />
b. He is c<strong>on</strong>sidered very close to Shri PC Pande and<br />
key to exploring the complicity of the chain of<br />
command resp<strong>on</strong>sibility in the violence. Shri PC<br />
Pande stands seriously indicted for the failure to<br />
c<strong>on</strong>trol the violence in Ahmedabad city, the delayed<br />
impositi<strong>on</strong> of curfew, the participati<strong>on</strong> in illegal acts at<br />
the best of the state government issues in un-minuted<br />
meetings <strong>on</strong> the evening of February 27, 2002 and<br />
early morning of February 28, 2002.. Under the<br />
circumstance, he could not be seriously expected to<br />
interrogate Shri PC Pande and investigate his role,<br />
18
which are borne <str<strong>on</strong>g>by</str<strong>on</strong>g> the subsequent acts of omissi<strong>on</strong><br />
of the SIT.<br />
c. When he was posted to Rajkot in 2002, he managed<br />
to stay in Ahmedabad, where his family was, almost<br />
all through his tenure of more than a year with the<br />
blessings of Shri PC Pande.<br />
d. He c<strong>on</strong>tinued as a favoured officer of Shri PC Pande<br />
and during the tenure of DGP Shri Pande. He has<br />
held the most influential postings (e.g. Home<br />
Secretary, IG of Police, Surat Range). He c<strong>on</strong>tinued<br />
as the head of the Surat Range even after his<br />
promoti<strong>on</strong> to the rank of Additi<strong>on</strong>al DGP, which has<br />
never been heard of. He is presently posted as<br />
Commissi<strong>on</strong>er of Police, Surat City. This<br />
dem<strong>on</strong>strates that he has been c<strong>on</strong>sistently close to<br />
and is a trusted pers<strong>on</strong> of the political executive.<br />
e. As per his own admissi<strong>on</strong>s, in c<strong>on</strong>fidence, before<br />
some of his colleagues, he claims that he had been<br />
directed not to move out of his office and let the riots<br />
fester <str<strong>on</strong>g>by</str<strong>on</strong>g> Shri PC Pande. It is <strong>on</strong>ly natural that the SIT<br />
chose to ignore the role Shri PC Pande in the<br />
communal violence in Ahmedabad City given Shri<br />
Jha’s role in the SIT.<br />
f. He had also brought the Police C<strong>on</strong>trol Room,<br />
Ahmedabad City, under his charge with the<br />
permissi<strong>on</strong> of Shri PC Pande. Therefore, for this<br />
reas<strong>on</strong> the SIT omitted to investigate as to why<br />
politicians were sitting in the Ahmedabad City Police<br />
19
C<strong>on</strong>trol Room and whether they had had any role to<br />
play in the major massacres.<br />
g. He was the Secretary in Home Department of the<br />
Government of Gujarat for nearly three years when<br />
the matter was pending before this H<strong>on</strong>’ble Court<br />
when he c<strong>on</strong>sistently took the positi<strong>on</strong> and was a<br />
party to the affidavits <strong>on</strong> behalf of the State that the<br />
investigati<strong>on</strong>s of these cases should not be handed<br />
over to the CBI or transferred out of the State.<br />
Although it can be argued <strong>on</strong> his behalf that he was<br />
voicing the positi<strong>on</strong> of his Government, it cannot be<br />
denied that in him the Government had found a<br />
trustworthy and reliable instrument for its unethical<br />
and crafty manoeuvres.<br />
h. He is the pers<strong>on</strong> who pers<strong>on</strong>ally cleared all the<br />
affidavits that had been <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> police officers, who<br />
had been employed in Ahmedabad City at the<br />
relevant time, before the Nanavati-Shah Commissi<strong>on</strong><br />
enquiring into the Gujarat riots. Many of these<br />
affidavits c<strong>on</strong>tain false declarati<strong>on</strong>s and had his<br />
c<strong>on</strong>scious approval.<br />
i. As the supervisor of the case regarding the Sabarmati<br />
Express carnage at Godhra, he has d<strong>on</strong>e precious<br />
little to add to or improve the questi<strong>on</strong>able evidence<br />
collated <str<strong>on</strong>g>by</str<strong>on</strong>g> the Gujarat police in the case. In the<br />
Godhra Train Burning Case, the SIT has fully<br />
endorsed the c<strong>on</strong>spiracy theory floated <str<strong>on</strong>g>by</str<strong>on</strong>g> the Gujarat<br />
Police investigati<strong>on</strong> team and has not probed into the<br />
20
evelati<strong>on</strong>s<br />
in the Tehelka Magazine organized<br />
‘Operati<strong>on</strong> Kalank’, in which the witnesses admitted<br />
that they were bribed <str<strong>on</strong>g>by</str<strong>on</strong>g> the Gujarat police to speak in<br />
favour of c<strong>on</strong>spiracy theory of Gujarat police. Besides,<br />
he has not analysed the CDRs of the c<strong>on</strong>cerned<br />
accused pers<strong>on</strong>s. It is pertinent to menti<strong>on</strong> here that<br />
even the POTA Review Committee has opined that<br />
there is no c<strong>on</strong>spiracy involved in the Godhra Train<br />
Burning Case. However, the SIT maintains the<br />
c<strong>on</strong>spiracy theory, and the accused pers<strong>on</strong>s bail<br />
applicati<strong>on</strong>s have been opposed <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT, inter alia,<br />
<strong>on</strong> that ground, and the accused pers<strong>on</strong>s are in jail<br />
since 2002 – 03.<br />
With this background, it is doubtful if he would be capable of, or<br />
could be entrusted with investigating the c<strong>on</strong>spiratorial<br />
involvement of the same political executive and other senior<br />
police officers during the riots.<br />
Moreover, Mr. Shivanand Jha is <strong>on</strong>e of the accused pers<strong>on</strong>s<br />
named in the complaint of Smt. Jafri which has been ordered <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
this H<strong>on</strong>’ble Court to be enquired into <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT and to be dealt<br />
with as per law. This c<strong>on</strong>flict of interest has seriously impacted<br />
<strong>on</strong> the transparency and accountability of the SIT.<br />
The above-named two members of the SIT, viz. Smt. Geetha<br />
Johri and Shri Shivanand Jha, were ordered <strong>on</strong> 6 th April, 2010<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court to disassociate themselves from the SIT<br />
till further orders.<br />
21
iii.<br />
shish Bhatia<br />
a. He has been heading the Crime Branch, Ahmedabad<br />
City for the past three years before the SIT was<br />
c<strong>on</strong>stituted <str<strong>on</strong>g>by</str<strong>on</strong>g> the Supreme Court in March, 2008.<br />
The Crime Branch of Ahmedabad City is a prized<br />
post, and is given to officers close to the Government.<br />
b. As Joint CP, Crime Branch, he was supervising the<br />
investigati<strong>on</strong>s of the major cases of massacres in<br />
Ahmedabad City (e.g. Naroda Patiya, Gulberg<br />
Society, Narodagam Cases) and did nothing for three<br />
years despite evidence already having come <strong>on</strong><br />
record regarding the involvement of political<br />
pers<strong>on</strong>alities in the crimes. No effort was also made<br />
to collect fresh evidence & to uncover the truth before<br />
the SIT was appointed.<br />
c. The gross lapses and failures in the Ahmedabad city<br />
based carnages have been detailed in CrMP 19816-<br />
19819 and further detailed in the Additi<strong>on</strong>al <str<strong>on</strong>g>Affidavit</str<strong>on</strong>g><br />
<str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> me <strong>on</strong> December 1, 2009. These illustrate his<br />
acti<strong>on</strong>s in protecting powerful accused, especially<br />
given the superficial analysis of the call data<br />
c<strong>on</strong>tained in the CD submitted <str<strong>on</strong>g>by</str<strong>on</strong>g> Shri Rahul Sharma,<br />
and gave a clean chit to the senior police officers like<br />
Shri PC Pande and Shri MK Tand<strong>on</strong> in the cases<br />
supervised <str<strong>on</strong>g>by</str<strong>on</strong>g> him.<br />
d. The supervisi<strong>on</strong> of Naroda Patiya and Naroda Gam<br />
cases have been assigned to him. In the investigati<strong>on</strong><br />
<strong>22</strong>
of these cases, serious lapses are there. Details<br />
thereof are hereafter c<strong>on</strong>tained in paragraph 23. I say<br />
and submit that we are perturbed especially <str<strong>on</strong>g>by</str<strong>on</strong>g> blatant<br />
efforts of the Gujarat Police Ahmedabad Police to<br />
c<strong>on</strong>ceal Stati<strong>on</strong> Diary Entries and Police C<strong>on</strong>trol<br />
Room Records. I say and submit that advocates for<br />
the witnesses have now accessed these after 173(8)<br />
applicati<strong>on</strong>s have been <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the witnesses in all<br />
these cases. I further say and submit that in both<br />
Naroda Patiya and Naroda Gaam cases, handled <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
Shri Bhatia, Trial Court Judges have refused legal<br />
representati<strong>on</strong> to victims and witnesses which is their<br />
right under Secti<strong>on</strong> 24(8)(2) of the Code of Criminal<br />
Procedure and is moreover a gross denial of basic<br />
legal rights in crimes of this magnitude. The SIT has<br />
not found this at all objecti<strong>on</strong>able and has not<br />
supported repeated applicati<strong>on</strong>s to correct this denial<br />
made in the Courts (Trial Court and High Court).<br />
e. Shri RK Shah Special Public Prosecutor for the<br />
Gulberg Society Case has made serious allegati<strong>on</strong>s<br />
against Shri Bhatia regarding undue interference and<br />
lack of support to the prosecuti<strong>on</strong> in c<strong>on</strong>ducting the<br />
trial of the case. I say and submit that what is really<br />
disturbing from this account of Shri Bhatia’s<br />
pressurizing the special public prosecutor to<br />
pressurize witnesses to succumb to their 161<br />
statements recorded before the SIT (about which they<br />
had complained to Dr Raghavan immediately after the<br />
23
misdemeanours) rather than rely <strong>on</strong> testim<strong>on</strong>ies<br />
before the Court.<br />
I say and submit that in view of the background of the members of<br />
the Gujarat cadre IPS officers in the SIT, it is humbly submitted that<br />
if the SIT is not rec<strong>on</strong>stituted and further investigati<strong>on</strong> not<br />
undertaken, gross injustice will also be d<strong>on</strong>e in these cases.<br />
19. I further say and submit, in resp<strong>on</strong>se to paragraph 5 (i) of the<br />
government of Gujarat’s affidavit that when the SIT was first re<br />
c<strong>on</strong>stituted after deliberati<strong>on</strong>s, we were open to its formati<strong>on</strong>. It was<br />
<strong>on</strong>ly when the investigati<strong>on</strong> was found to have been d<strong>on</strong>e in a<br />
lackluster and biased manner and this was after the trials had<br />
started, that the evidence <strong>on</strong> record c<strong>on</strong>firmed that the SIT had<br />
been seriously misled <str<strong>on</strong>g>by</str<strong>on</strong>g> these officers and failed to look into key<br />
aspects that had been brought before it at the outset. I also say and<br />
submit in specific resp<strong>on</strong>se to paragraph 5(iii) that the SIT is heavily<br />
dependent <strong>on</strong> the local Gujarat police officers who it appears, have<br />
tried to record sec<strong>on</strong>d sets of 161 statements to weaken the<br />
prosecuti<strong>on</strong> case. However, when witnesses deposed before the<br />
Courts these facts were revealed and there is no discrepancy in<br />
their testim<strong>on</strong>ies.<br />
I say and submit that the valiant effort of the witnesses to get justice<br />
reveals a faith in this H<strong>on</strong>’ble Court as they have deposed, under<br />
severe duress from a hostile state before the Trial Courts.<br />
Moreover, the statements have been recorded <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT in<br />
24
apparent and clear violati<strong>on</strong> of the law under the provisi<strong>on</strong>s of<br />
secti<strong>on</strong> 162 Code of Criminal Procedure.<br />
I say this because efforts have been made to pin a witness<br />
testim<strong>on</strong>y to whatever the police (in this case SIT) has written in the<br />
police statement.<br />
20. I say and submit that we are disturbed to understand that Dr RK<br />
Raghavan appears to be going bey<strong>on</strong>d this H<strong>on</strong>’ble Court when he<br />
has asked this H<strong>on</strong>’ble Court to rec<strong>on</strong>sider its decisi<strong>on</strong> to remove<br />
Shri Shivanand Jha and Smt Geeta Johri from the Special<br />
Investigati<strong>on</strong> Team (Office Report dated April 17, 2010). It is<br />
difficult to understand the anxiety of the Chairpers<strong>on</strong> to retain<br />
pers<strong>on</strong>s with questi<strong>on</strong>able integrity in a team that is expected to be<br />
blemish free, above board and perform its functi<strong>on</strong>s totally uninfluenced<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> any secti<strong>on</strong>.<br />
21. I say and submit that the averments made in paragraph 5(iv) of the<br />
Gujarat Government’s affidavit are misleading. There is no doubt<br />
that the order was passed <strong>on</strong> May 1, 2009 <str<strong>on</strong>g>by</str<strong>on</strong>g> the H<strong>on</strong> Supreme<br />
Court but the H<strong>on</strong>’ble SC felt it proper to keep the matter pending<br />
and directed the SIT to submit the report periodically. Thus, there<br />
was a well thought out purpose or object behind doing so. The <strong>on</strong>ly<br />
object could be to see that the trials are m<strong>on</strong>itored and any injustice<br />
could be brought to the notice of this H<strong>on</strong>’ble Court. I further<br />
str<strong>on</strong>gly refute the allegati<strong>on</strong>s made in Paragraph 5(v) and assert<br />
that the august forum of this H<strong>on</strong>’ble Court is not being used <str<strong>on</strong>g>by</str<strong>on</strong>g> any<br />
political party. Both I and the CJP are n<strong>on</strong>-political dedicated to the<br />
rule of law and human rights protecti<strong>on</strong>. Moreover, these kind of<br />
bald faced falsehoods and accusati<strong>on</strong>s are likely to be made <str<strong>on</strong>g>by</str<strong>on</strong>g> any<br />
aggrieved party before this H<strong>on</strong>’ble Court.<br />
25
<strong>22</strong>. I further say and submit vis a vis Paragraph 8 of the Gujarat<br />
government’s affidavit is c<strong>on</strong>cerned, it is clear knowledge that<br />
illegal and unc<strong>on</strong>stituti<strong>on</strong>al instructi<strong>on</strong>s were given <str<strong>on</strong>g>by</str<strong>on</strong>g> the chief<br />
minister <strong>on</strong> February 27, 2002 at a late night meeting, that the<br />
meeting was not recorded (no minutes were recorded) and the<br />
carnage that followed was a direct resp<strong>on</strong>se to that. This averment<br />
made here <str<strong>on</strong>g>by</str<strong>on</strong>g> the State is absolutely false and amounts to perjury<br />
as the H<strong>on</strong>’ble Supreme Court is sought to be misled while an<br />
investigati<strong>on</strong> is <strong>on</strong>. No details have been menti<strong>on</strong>ed <str<strong>on</strong>g>by</str<strong>on</strong>g> the State as<br />
to when, where and how, <strong>on</strong> the next day, i.e. February 28, 2002<br />
the chief minister had requested the then uni<strong>on</strong> Defence Minister<br />
and the Home Minister to deploy the army. Surprisingly neither any<br />
fax nor any email is referred to. In fact there is clear evidence at<br />
hand to show that for 3 days army was not called as the chief<br />
minister had already instructed the local police to go ‘soft’ <strong>on</strong> the<br />
accused who were allowed to go <strong>on</strong> the rampage during first an<br />
Ahmedabad Bandh (supported <str<strong>on</strong>g>by</str<strong>on</strong>g> the ruling party) and then a<br />
Gujarat Bandh (also supported <str<strong>on</strong>g>by</str<strong>on</strong>g> the ruling party in the state).<br />
I say and submit that it is well established from the analysis of the<br />
documentary records available and oral testim<strong>on</strong>ies of serving and<br />
retired officers that the chief minister also held a sec<strong>on</strong>d meeting <strong>on</strong><br />
the morning of February 28, 2002 at Gandhinagar where illegal<br />
instructi<strong>on</strong>s were allegedly repeated, that at least some of the<br />
powerful accused who have already been arraigned as accused<br />
attended it, and that another meeting was held <strong>on</strong> the afterno<strong>on</strong> of<br />
that day at the Shahibaug Circuit House Annexe after the worst<br />
damage at Gulberg Society and Naroda Patiya had already been<br />
completed. I also say and submit that analysis of documentary<br />
26
evidence also shows that the army was actually deployed in<br />
Ahmedabad <strong>on</strong> March 4, 2002 and to make matters worse dumper<br />
vehicles of the municipal corporati<strong>on</strong> were offered as transport to<br />
belittle this effort. (Annexure B Colly)<br />
23. I specifically say and submit that averments made in paragraphs<br />
12 -21 of the affidavit in reply of the state of Gujarat tries to mislead<br />
this H<strong>on</strong>’ble Court about the background of the present set of<br />
petiti<strong>on</strong>s. The very history of this litigati<strong>on</strong> as the historic and<br />
unprecedented steps taken <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble court during its<br />
pendency reveal, that some if not substantial truth was found in the<br />
allegati<strong>on</strong>s against deliberate subversi<strong>on</strong> of the criminal justice<br />
system through various means, The attempt has been to protect<br />
the powerful accused and defeat the process of the criminal justice<br />
system. In fact I say and submit that the affidavit <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> me <strong>on</strong><br />
October 17, 2003 in the SLP (Crl) No. 3770/2003 actually drew<br />
attenti<strong>on</strong> to the vast extent of the subversi<strong>on</strong> in the appointment of<br />
officers of the court.<br />
24. I say and submit that in Para 14 the government of Gujarat refers to<br />
the affidavit <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> J. R. Rajput, Dy. Secretary, Home Department<br />
before this H<strong>on</strong>"ble Court. The said averments made in that<br />
affidavit have proved to be absolutely false as the investigati<strong>on</strong> <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
the SIT and the evidence laid before the court reveal.<br />
I say and<br />
submit that the affidavit <strong>on</strong> behalf of the state of Gujarat then and<br />
now are attempts to give a distorted picture about the subversi<strong>on</strong> of<br />
justice in Gujarat. I further state that in Paragraph 16 of the state’s<br />
affidavit, an annexure R/L is the order of SC dated August 17,<br />
2004. After c<strong>on</strong>sidering the facts the H<strong>on</strong>'ble Supreme Court<br />
27
allowed the NGOs to participate in the process of giving details to<br />
The Range Police Officers etc. for the reopening of 2,000 cases. I<br />
say and submit that the State of Gujarat has failed to show any<br />
change in its attitude towards the rights of victims and their need for<br />
justice. I say with resp<strong>on</strong>sibility that absolutely false statement has<br />
been made <strong>on</strong> oath <str<strong>on</strong>g>by</str<strong>on</strong>g> the dep<strong>on</strong>ent that the above dated order of<br />
this H<strong>on</strong>’ble Court has been abided in both letter and spirit. This<br />
may not be the appropriate stage to go into length the extent to<br />
which the State has g<strong>on</strong>e to ensure that justice is not d<strong>on</strong>e in the<br />
2000 reopened cases. I crave leave to especially rely <strong>on</strong> details of<br />
<strong>on</strong>e case, in which two separate FIRs were registered as CR No. I<br />
38/2002 and 41/2002 and thereafter, due to the tenacity of a victim<br />
witness Sagir Ahmed Gudala the trial proceeded as Sessi<strong>on</strong>s Case<br />
No. 6/06, 7/06 and 100/07 before the Ld. Addl. Sessi<strong>on</strong>s Judge,<br />
Dahod wherein at least three eye witnesses named accused from<br />
am<strong>on</strong>g the mob. They then <str<strong>on</strong>g>filed</str<strong>on</strong>g> an applicati<strong>on</strong> u/s 319 Code of<br />
Criminal Procedure to arraign them as accused but the applicati<strong>on</strong><br />
was dismissed <strong>on</strong> December 18, 2009. It was alleged that<br />
complainant PSI. Parmar (in the original FIR) and <strong>on</strong>e Mamlatdar<br />
Bhabhor were the accused. Despite the orders of this H<strong>on</strong>’ble Court<br />
an officer assigned to investigate this case is under a cloud for<br />
some other, unrelated allegati<strong>on</strong>s and therefore reportedly fearful of<br />
punitive acti<strong>on</strong> <str<strong>on</strong>g>by</str<strong>on</strong>g> the State government. The criminal revisi<strong>on</strong><br />
applicati<strong>on</strong> no. 65 of 2010 <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the victim in Gujarat High Court<br />
is still pending al<strong>on</strong>g with the writ petiti<strong>on</strong> being Special Criminal<br />
Applicati<strong>on</strong> No. 71/2006.<br />
The above facts reveal as to how the state government has been<br />
utterly and completely subverting the letter and spirit of the Order of<br />
this H<strong>on</strong>’ble SC dated August 17, 2004. This is just <strong>on</strong>e such<br />
28
example of subversi<strong>on</strong> of the process of justice under the current<br />
dispensati<strong>on</strong> in the state and there are many more.<br />
25. I say and submit that averment in paragraph <strong>22</strong> of the Gujarat<br />
Government’s affidavit is misleading since the arrest, absc<strong>on</strong>ding,<br />
seeking of anticipatory bail and finally granting of bail to Smt Maya<br />
Kodnani, then minister for women and child welfare was mired in<br />
c<strong>on</strong>troversy. It is the belief of the Petiti<strong>on</strong>er and the victims that<br />
Dr.Kodnani was given privileges while being arraigned as an<br />
accused which facilitated her absc<strong>on</strong>ding, subsequent grant of<br />
anticipatory bail and her regular bail. I say and submit that even as<br />
accused she c<strong>on</strong>tinues to go <strong>on</strong> official tours with stat government<br />
ministers and was recently allowed to do so <str<strong>on</strong>g>by</str<strong>on</strong>g> the Trial Judge <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
an order dated 30.3.2010.<br />
Specifically, the following facts about the way the Naroda Patiya<br />
and Naroda Gaam cases have been investigated with reference to<br />
the arrest of Smt Mayaben Kodnani are of interest:<br />
a. In the Narado Patiya massacre case though evidence<br />
was available from October, 2008 against the State<br />
Minister Mayaben Kodnani, she was not shown as<br />
accused in the first charge-sheet <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT in<br />
December, 2008. She was arrested later due to Media<br />
propaganda in March, 2009.<br />
b. Mayaben Kodnani went absc<strong>on</strong>ding for a number of days<br />
when she learnt that she was to be arrested. The SIT<br />
facilitated it <str<strong>on</strong>g>by</str<strong>on</strong>g> almost announcing the same <str<strong>on</strong>g>by</str<strong>on</strong>g> issuing<br />
her a summ<strong>on</strong>s. As a minister, she had PSOs and<br />
security guards detailed with her, yet she went missing!<br />
29
Unless these security guards deliberately allowed<br />
Mayaben to go al<strong>on</strong>e and hide wherever she pleased, it<br />
couldn’t have happened. That this had an official nod<br />
from the Government is apparent because no enquiry<br />
against these security pers<strong>on</strong>nel has been initiated. That<br />
this official nod of the State Government met with no<br />
disapproval of SIT, these officials have not been<br />
questi<strong>on</strong>ed or l investigated for facilitating the evasi<strong>on</strong> of<br />
arrest <str<strong>on</strong>g>by</str<strong>on</strong>g> the accused. Mayaben later appeared before<br />
the SIT armed with an anticipatory bail..<br />
c. After allowing Mayabe Kodnani to absc<strong>on</strong>d, the SIT tried<br />
to create an impressi<strong>on</strong> that it meant business <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
challenging the anticipatory bail order in the H<strong>on</strong>’ble High<br />
Court of Gujarat. Not surprisingly, the H<strong>on</strong>’ble Court<br />
asked uncomfortable questi<strong>on</strong>s to the SIT <strong>on</strong> their failure<br />
to arrest Mayaben Kodnani in the first place.<br />
After the SIT arrested Mayaben Kodnani and Jaydeep<br />
Patel, their interrogati<strong>on</strong> was unproductive and treated as<br />
a mere formality that had to be g<strong>on</strong>e through. No<br />
scientific methods to probe the minds of the accused<br />
were underg<strong>on</strong>e. The accused pers<strong>on</strong>s were not<br />
subjected to the any tough questi<strong>on</strong>ing and there was<br />
nothing in the interrogati<strong>on</strong> to suggest that there was a<br />
purposeful intent to unearth the larger c<strong>on</strong>spiracy. There<br />
are serious loopholes in the investigati<strong>on</strong>s as can be<br />
seen from a perusal of the chargesheet. No questi<strong>on</strong>s or<br />
investigati<strong>on</strong>s <strong>on</strong> the clear signs of c<strong>on</strong>spiracy as they<br />
emerge from an analysis of the documentary evidence<br />
30
are made in the Naroda Patiya, Naroda Gaam and<br />
Gulberg chargesheets.<br />
26. I say and submit that the baseless allegati<strong>on</strong>s made <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
government of Gujarat in paragraph <strong>22</strong> of the affidavit saying that I<br />
represent “undisclosed ulterior vested/political interests” are<br />
motivated and malicious. The false statement that allegati<strong>on</strong>s made<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> us <strong>on</strong> the miscarriage of justice were found to be<br />
unsubstantiated <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT is also baseless. The statement <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
government of Gujarat that over as many as 200 eyewitnesses and<br />
victim survivors are tutored <str<strong>on</strong>g>by</str<strong>on</strong>g> me is completely baseless. Neither<br />
me nor any of the Petiti<strong>on</strong>ers that have <str<strong>on</strong>g>filed</str<strong>on</strong>g> petiti<strong>on</strong>s with me have<br />
any ulterior motive. We are c<strong>on</strong>cerned about the miscarriage of<br />
justice and hence are supporting the victims despite very<br />
adversarial c<strong>on</strong>diti<strong>on</strong>s <strong>on</strong> the State of Gujarat at the risk of threat to<br />
pers<strong>on</strong>. I have been given armed protecti<strong>on</strong> <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court.<br />
It is rather strange that there is no menti<strong>on</strong> or reference to the huge<br />
tragedies and loss suffered <str<strong>on</strong>g>by</str<strong>on</strong>g> the victims in some cases <strong>on</strong>e family<br />
has lost as many as 19 members; young boys have <strong>watch</strong>ed their<br />
sisters and mothers subjected to brute gender violence. I would<br />
specifically like to draw attenti<strong>on</strong> to paragraph <strong>22</strong> of the government<br />
of Gujarat’s affidavit where the state government has been<br />
repeatedly referring to videography. It is the duty of the resp<strong>on</strong>dent<br />
to explain as to how the resp<strong>on</strong>dent government of Gujarat has<br />
gathered knowledge of the manner and method the SIT has carried<br />
out its investigati<strong>on</strong>, especially when the SIT does not talk of this<br />
faulty manner of its investigati<strong>on</strong>. It is curious how the state of<br />
Gujarat gathered the impressi<strong>on</strong>. If at all the statements have been<br />
31
videographed this could attract secti<strong>on</strong> 162 of the CrPC. I say and<br />
submit that there appears to be a coercive design behind the<br />
c<strong>on</strong>tenti<strong>on</strong>s of the government of Gujarat and the fact that the three<br />
senior officers bel<strong>on</strong>g to the Gujarat cadre is a matter for both<br />
c<strong>on</strong>cern and c<strong>on</strong>siderati<strong>on</strong> of this H<strong>on</strong>’ble Court. I say and submit<br />
that in this c<strong>on</strong>necti<strong>on</strong> I would like to make a special averment <strong>on</strong><br />
witness protecti<strong>on</strong> also referred to in great detail in paragraph 42 of<br />
this H<strong>on</strong>’ble Court’s order dated May 1, 2009. I further say and<br />
submit that apart from the separate petiti<strong>on</strong> <str<strong>on</strong>g>filed</str<strong>on</strong>g> a witness in<br />
another case before this H<strong>on</strong>’ble Court, some of the witnesses<br />
apparently deliberately not examined <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT in the Odh case<br />
were allegedly threatened and beaten <str<strong>on</strong>g>by</str<strong>on</strong>g> <strong>on</strong>e DYSP Pathak serving<br />
under the SIT and complaints in this regard made to Chairpers<strong>on</strong><br />
SIT and also an affidavit tendered in this regard. I crave leave to<br />
rely <strong>on</strong> this and other related incidents at the time of the final<br />
hearing of this applicati<strong>on</strong>.<br />
27. I say and submit that the averments made in paragraph 24 of the<br />
said affidavit is nothing short of an effort to undermine the<br />
corrective measures sought to be put in place <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble<br />
Court.<br />
28. I say and submit that the averment in paragraph 26 that any order<br />
passed for the re-c<strong>on</strong>stituti<strong>on</strong> of the SIT would “run c<strong>on</strong>trary” or<br />
“amount to a review” of its own order <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court is a<br />
limited and faulty understanding of the critical issues at hand.<br />
32
29. I say and submit that it is both clear and well-established law that in<br />
an appropriate case when the court feels that the investigati<strong>on</strong> <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
the police authorities is not headed in the proper directi<strong>on</strong>, or when<br />
senior police officials are involved in the said crime, it was and is<br />
always open to the court to hand over the investigati<strong>on</strong> to an<br />
independent agency like the CBI. It cannot be said that after the<br />
charge sheet is submitted, the court is not empowered, in an<br />
appropriate case, to hand over the investigati<strong>on</strong> to an independent<br />
agency like the CBI. I crave leave to refer to and rely up<strong>on</strong> various<br />
judgements of this H<strong>on</strong>’ble Court at the time of hearing of the<br />
applicati<strong>on</strong>.<br />
30. I say that the c<strong>on</strong>tenti<strong>on</strong>s c<strong>on</strong>tained in paragraph 31 of the affidavit<br />
are misleading. I submit that the very reas<strong>on</strong> for this H<strong>on</strong>’ble Court<br />
to c<strong>on</strong>tinue to m<strong>on</strong>itor the process of investigati<strong>on</strong> and trial was<br />
because of the involvement of powerful accused and allegati<strong>on</strong>s of<br />
subversi<strong>on</strong>s <str<strong>on</strong>g>by</str<strong>on</strong>g> them.<br />
31. I further say and submit that the averments made in paragraph 31<br />
(b), (c), (d) and then again in paragraph 37 where the government<br />
of Gujarat has tried to justify the critical issue of appointment of<br />
special PPs with unimpeachable reputati<strong>on</strong> and similarly judicial<br />
officers of high integrity and competence, there seems to be a<br />
deliberate efforts to selectively place <strong>on</strong> record a letter written <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
the Legal Department of the state to Chairpers<strong>on</strong> Dr RK Raghavan<br />
<strong>on</strong> the appointment of Shri RK Shah dated June 9, 2009 (Annexure<br />
R/A-( page 6<strong>22</strong> Volume II of the Government of Gujarat’s <str<strong>on</strong>g>Affidavit</str<strong>on</strong>g>).<br />
I say and submit that they have deliberately not placed <strong>on</strong> record<br />
any explanati<strong>on</strong> given <str<strong>on</strong>g>by</str<strong>on</strong>g> him if any. I also say and submit that a)<br />
33
Shri Shah was also the special PP who prosecuted the Bilkees<br />
Bano case in Mumbai and b) that we had raised objecti<strong>on</strong>s to the<br />
appointment of the other PPs chosen <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT and the state<br />
(menti<strong>on</strong>ed in our criminal applicati<strong>on</strong> 19816/2009). I would also<br />
like to take str<strong>on</strong>g excepti<strong>on</strong> to paragraph 32 of the government of<br />
Gujarat’s affidavit where they have taken excepti<strong>on</strong> to our<br />
submitting specific names of officers to replace those in case the<br />
re-c<strong>on</strong>stituti<strong>on</strong> of the SIT.<br />
32. I submit that the c<strong>on</strong>tenti<strong>on</strong> of the State in paragraph 32 that seeks<br />
to interpret the order of this H<strong>on</strong>’ble Court dated May 1, 2009 as a<br />
final order as far as further investigati<strong>on</strong> is c<strong>on</strong>cerned is untenable.<br />
In fact in paragraphs 42 and 46 (xiv) of the May 1, 2009 this H<strong>on</strong><br />
Court held that further investigati<strong>on</strong> was very much probable. In<br />
paragraph 46 (xiv) it has been specifically stated that,<br />
“The SIT would c<strong>on</strong>tinue to functi<strong>on</strong> and carry out any<br />
investigati<strong>on</strong>s that are yet to be completed, or any further<br />
investigati<strong>on</strong> that may arise in the course of the trials. The<br />
SIT would also discharge such functi<strong>on</strong>s as have been cast<br />
up<strong>on</strong> them <str<strong>on</strong>g>by</str<strong>on</strong>g> the present order.”<br />
It is clear therefore that just like in the case of any criminal trial<br />
under the Code of Criminal Procedure, c<strong>on</strong>tinued further<br />
investigati<strong>on</strong>s were envisaged in these trials <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court.<br />
I say and submit that the SIT is still to review key documentary<br />
evidence including:<br />
a) Police C<strong>on</strong>trol Room Registers<br />
b) Case Diary and Stati<strong>on</strong> Diary Notings<br />
c) Ph<strong>on</strong>e Call Records for Analysis and C<strong>on</strong>clusi<strong>on</strong>s<br />
34
d) Investigati<strong>on</strong>s into destructi<strong>on</strong> of bodies, post mortem<br />
reports and doctoring of evidence<br />
I would further like to say and submit that while the order of this<br />
H<strong>on</strong> Court <strong>on</strong> further inquiry inquiry/investigati<strong>on</strong> is clear, though<br />
witnesses <str<strong>on</strong>g>filed</str<strong>on</strong>g> an applicati<strong>on</strong> before the SIT in November 2009 in<br />
the <strong>on</strong>going trial in Mehsana being Sessi<strong>on</strong>s Case No. 275/2002 &<br />
allied cases, known as Sardarpura Case for further investigati<strong>on</strong>,<br />
the SIT preferred not to resp<strong>on</strong>d and therefore an applicati<strong>on</strong> for<br />
further investigati<strong>on</strong> was <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the complainant before the<br />
H<strong>on</strong>’ble Sessi<strong>on</strong>s Court, Mehsana being Exh: 525 before the Trial<br />
Court which was rejected <strong>on</strong> 27.01.2010 against which the<br />
complainant Ibrahim Rasul has approached the H<strong>on</strong>’ble Gujarat<br />
High Court. (The said applicati<strong>on</strong> being Misc. Cri. Applicati<strong>on</strong> No.<br />
3729 is pending.)<br />
I say and submit that as in other crucial cases this failure to<br />
interrogate evidence arises out of a refusal to probe<br />
a) Arms and trishul distributi<strong>on</strong> and provocative speeches<br />
made in the Mehsana district <str<strong>on</strong>g>by</str<strong>on</strong>g> prominent political leaders<br />
before the Godhra incident <strong>on</strong> 27.2.2002. Evidence was<br />
available to the SIT through the statements of witnesses<br />
recorded <str<strong>on</strong>g>by</str<strong>on</strong>g> them and also Tehelka’s Operati<strong>on</strong> Kalank as<br />
also now evidence before the Court.<br />
Similarly in the offence being Sessi<strong>on</strong>s Case No. 44/2008 pending<br />
in the court of Ld. Addl. Sessi<strong>on</strong>s Court, Anand for the offences u/s<br />
302 etc of the Indian Penal Code arising out of the offence being<br />
CR No. I 27 of 2002 registered with Khambholaj Police Stati<strong>on</strong>,<br />
Anand (the Odh trials) the SIT had not recorded statements of the<br />
crucial eye witnesses. In this case as many as 3 pers<strong>on</strong>s had been<br />
killed. The SIT relies up<strong>on</strong> the police statements of the witnesses<br />
35
ecorded in the year 2002. The investigati<strong>on</strong> <str<strong>on</strong>g>by</str<strong>on</strong>g> the Gujarat police<br />
was found to be wanting leading to the appointment of the SIT. The<br />
panchnama of the scene of the offence drawn in March, 2002<br />
shows that the ashes and burnt remains of the deceased were<br />
found from the house no. 839 bel<strong>on</strong>ging to Idrish Abdulbhai<br />
whereas the police at that time wr<strong>on</strong>gly recorded the statement of<br />
Idrishbhai Abdulbhai deliberately manipulating evidence and<br />
changing the entire scene of the offence <str<strong>on</strong>g>by</str<strong>on</strong>g> recording that the<br />
deceased Ayeshaben and Noorieben rushed to the house of<br />
Gafoorbhai in the adjoining house i.e, house no. 840 where both<br />
were burnt alive ! In this case their own statements and<br />
panchnamas have been denied to witnesses. Shockingly, the eye<br />
witness Idris was never shown his previous police statement. It was<br />
<strong>on</strong>ly when the first eye witness Idrish Vora was to be examined that<br />
the special public prosecutor gave the copy of his statement<br />
recorded in March, 2002 which accoding to the witness was falsely<br />
recorded and the names of accused deliberately omitted.<br />
Thereafter, the victim immediately informed his lawyer in the court<br />
who spoke to the special prosecutor. The victim was assured <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
special public prosecutor that the evidence would not be recorded<br />
and <strong>on</strong>ce examinati<strong>on</strong> in chief starts time would be sought to rectify<br />
this lapse in investigati<strong>on</strong>. Nothing of that sort happened and<br />
therefore the lawyer <strong>on</strong> behalf of the victim Idrish Vora tendered an<br />
applicati<strong>on</strong> seeking further investigati<strong>on</strong> u/s 173(8) of the Code of<br />
Criminal Procedure. The examinati<strong>on</strong> of the witnesses was differed<br />
and the applicati<strong>on</strong> for further investigati<strong>on</strong> being Exh: 211 was<br />
heard and finally dismissed <strong>on</strong> December 21, 2009.<br />
I say and<br />
submit that, against this order the witnesses <str<strong>on</strong>g>filed</str<strong>on</strong>g> a Criminal<br />
Revisi<strong>on</strong> Applicati<strong>on</strong> No. 2 of 2010 before the H<strong>on</strong>’ble Gujarat High<br />
36
Court, but the same was however dismissed <strong>on</strong> February 26, 2010.<br />
This witness has approached this H<strong>on</strong>’ble Court in appeal.<br />
Witnesses have made allegati<strong>on</strong>s against SI officials for<br />
intimidating and threatening them (24.3.2010). Moreover in the<br />
affidavit <str<strong>on</strong>g>filed</str<strong>on</strong>g> in this matter witnesses have also alleged that a<br />
senior level officer with the SIT was attempting to coerce witnesses<br />
in deposing as per what they felt was faulty 161 statements during<br />
the trial.<br />
Similarly the lapses in Sessi<strong>on</strong>s Case No. 235/2009 pending in the<br />
court of Ld. Addl. Sessi<strong>on</strong>s Judge, Ahmedabad known as Naroda<br />
Patiya Case wherein it is officially acknowledged that atleast 58<br />
pers<strong>on</strong>s were killed (though the actual figure if missing pers<strong>on</strong>s are<br />
taken into account is 110), an applicati<strong>on</strong> u/s 173 (8) of the Code of<br />
Criminal Procedure, was <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the witness for seeking to place <strong>on</strong><br />
record<br />
a) panchnamas, videography of the site of offence.<br />
The witness’ applicati<strong>on</strong> prayed for directi<strong>on</strong>s that<br />
(i)<br />
informati<strong>on</strong> regarding the movements of the<br />
fire brigade <strong>on</strong> 28.02.2002 be placed <strong>on</strong><br />
record,<br />
(ii)<br />
further investigati<strong>on</strong> <strong>on</strong> the ‘Tehelka sting<br />
operati<strong>on</strong>’ as per the evidence of witness no.<br />
592 (Ashish Khaitan be carried out), the<br />
investigati<strong>on</strong> of the mobile calls of different<br />
authorities be investigated,<br />
(iii)<br />
the photographs of the dead bodies etc be<br />
investigated as the dead bodies were not<br />
recognizable,<br />
37
(iv)<br />
the statements of witness no. 18 namely<br />
Basuddin, 409 namely Aminabanu, <strong>22</strong>8 etc be<br />
further investigated.<br />
Since the special public prosecutor was not effectively protecting<br />
the cause of the prosecuti<strong>on</strong>, witnesses, the victims, in view of the<br />
amendment of the Code of Criminal Procedure, Secti<strong>on</strong> 24(8), <str<strong>on</strong>g>filed</str<strong>on</strong>g><br />
an applicati<strong>on</strong> for filing the vakalatnama of their advocate in the<br />
crucial case of Naroda Patiya <str<strong>on</strong>g>by</str<strong>on</strong>g> filing an applicati<strong>on</strong> being Exh:<br />
480 in the Trial. The said applicati<strong>on</strong> was opposed and the same<br />
was dismissed <strong>on</strong> March 5, 2010. I say and submit that in two of<br />
the most heinous cases of 2002, Naroda Patiya and Gaam<br />
witnesses have been denied legal representati<strong>on</strong>.<br />
In the Deepda Darwaza case also it is witnesses, and not the SIT<br />
not the state of Gujarat that have moved an applicati<strong>on</strong> under<br />
secti<strong>on</strong> 319 of the CrPC against two newly arrayed accused, <strong>on</strong>e<br />
Dayabhai Patel, municipal corporator, Mehsana and Prahladbhai<br />
Gosa, then MLA Mehsana, an applicati<strong>on</strong> which was upheld <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
Sessi<strong>on</strong>s Court Mehsana No 180/2002 (more than seven witnesses<br />
had attributed specific roles to the accused) the accused<br />
challenged the Sessi<strong>on</strong>s Court order <str<strong>on</strong>g>by</str<strong>on</strong>g> filing a Misc. Criminal<br />
Applicati<strong>on</strong> No. 1620/2010 and 1636/2010.<br />
33. I say and submit that the averments in paragraph 31, wherein the<br />
state is making an all out bid to state that investigati<strong>on</strong>s and<br />
prosecuti<strong>on</strong>s of over 2,000 cases are being satisfactorily carried out<br />
is belied <str<strong>on</strong>g>by</str<strong>on</strong>g> facts <strong>on</strong> the ground. I say and submit that at the<br />
appropriate stage this H<strong>on</strong>’ble Court may deem it fit to summ<strong>on</strong><br />
applicati<strong>on</strong>s pertaining to the 2002 Gujarat violence still pending in<br />
the Gujarat Courts be called for. I say and submit that these may<br />
38
well show the loopholes in investigati<strong>on</strong> as well as efforts to subvert<br />
the process of justice to the victims.<br />
I say and submit that the averment in paragraph 31 of the<br />
government of Gujarat’s affidavit where it laments the directi<strong>on</strong>s of<br />
this H<strong>on</strong>’ble Court giving power of the appointment of the Sessi<strong>on</strong>s<br />
Judges for these sensitive cases solely to the H<strong>on</strong>’ble Chief Justice<br />
of the Gujarat High Court without c<strong>on</strong>sulting the state government<br />
is itself indicative of the mindset of the resp<strong>on</strong>dent government.<br />
34. I further say and submit that paragraphs 33-35 in the state of<br />
Gujarat’s affidavit are nothing short of a malicious attempt <str<strong>on</strong>g>by</str<strong>on</strong>g> a<br />
state to intimidate and malign me, the organizati<strong>on</strong> I represent<br />
(Citizens for Justice and Peace) and our advocate Shri MM Tirmizi.<br />
35. I say and submit that there has been a brazen and malicious desire<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> the state of Gujarat, to obstruct the process of justice in all these<br />
cases, and in fact ably aid those men and women accused of<br />
c<strong>on</strong>spiracy and actual participati<strong>on</strong> in mass rape and murder, <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
not supporting the case of the prosecuti<strong>on</strong> in these trials and<br />
actually obstructing it <str<strong>on</strong>g>by</str<strong>on</strong>g> c<strong>on</strong>stantly undermining the testim<strong>on</strong>ies of<br />
victim survivors and the gravity of the offences committed. I say<br />
and submit that the allegati<strong>on</strong>s made against me, the organizati<strong>on</strong><br />
that I represent and our advocate, Shri MM Tirmizi are false,<br />
malicious and made with a sinister idea to digress from the course<br />
of justice, from the punishment of those guilty of heinous and mass<br />
crimes.<br />
36. I say and submit that, at various levels it therefore appears that<br />
there are collaborative attempts between the state of Gujarat that is<br />
39
meant to further the case of the prosecuti<strong>on</strong> and prosecute mass<br />
crimes to, in fact discredit statements of the victim survivors, water<br />
down the gravity of the offences and weaken the case of the<br />
prosecuti<strong>on</strong>. It is crystal clear therefore that the fate of these<br />
sensitive cases is not safe within the state of Gujarat and we urge<br />
that the trials be transferred out of the state. I say and submit that it<br />
is clear that the current functi<strong>on</strong>aries of the government of Gujarat<br />
are more inclined towards those accused of heinous crimes in the<br />
state and offering them protecti<strong>on</strong> from punishment. I say and<br />
submit that even presently the struggle for justice for victim<br />
survivors is arduous. I say and submit that<br />
a) the matter <str<strong>on</strong>g>filed</str<strong>on</strong>g> under secti<strong>on</strong> 319 has been listed as<br />
many as eight times before the Gujarat High Court<br />
following the Trial Court Order of January 18, 2010<br />
(that accepted some of the witnesses c<strong>on</strong>tenti<strong>on</strong>s<br />
while rejecting others) However, the same is not<br />
heard for <strong>on</strong>e or other reas<strong>on</strong><br />
b) the Transfer Petiti<strong>on</strong> <str<strong>on</strong>g>filed</str<strong>on</strong>g> in the Gujarat High Court<br />
has been listed seven times and yet have not been<br />
heard or disposed of.<br />
37. I say and submit that the averments made specifically in paragraph<br />
33, though repeatedly throughout, in the resp<strong>on</strong>dent’s affidavit are<br />
curious. The state government has, it appears, has reproduced the<br />
sensitive porti<strong>on</strong> of the report submitted to this H<strong>on</strong>’ble Court <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
SIT. I say and submit that this practice of the state government,<br />
when copies of this report are not made available to us are<br />
prejudicial to us and against the basic principles of natural justice. I<br />
40
also say and submit that in all the trials current afoot in the state of<br />
Gujarat, accused have tried, <strong>on</strong>e way or another to approach the<br />
courts to try and get copies of the report and Courts have refused<br />
the same. I say and submit that when both the state government,<br />
who is now selectively leaking secti<strong>on</strong>s of the report and the<br />
accused in many of these heinous cases are doing so simply to<br />
pre-judge the issue, slander witnesses and victims and in fact<br />
influence the Judges hearing the trial. I say and repeat that to use<br />
untested 161 statements for such malicious propaganda, as was<br />
also d<strong>on</strong>e within these H<strong>on</strong>’ble court precincts last year is to<br />
flagrantly thwart the due process of justice. I crave leave to place<br />
the details of these criminal miscellaneous<br />
applicati<strong>on</strong>s/petiti<strong>on</strong>s/revisi<strong>on</strong>s and appeals made in the Sadarpura<br />
case, the Deepda Darwaza case and others to claming a copy of<br />
the SIT c<strong>on</strong>fidential report (due to the state of Gujarat’s slanderous<br />
propaganda) at the time of the final hearing of the applicati<strong>on</strong>.<br />
I say and submit that the manner in which the resp<strong>on</strong>dent<br />
government of Gujarat, who’s chief functi<strong>on</strong>aries and elected<br />
representatives have been accused of grave crimes, are today in a<br />
blatantly partisan and prejudicial act, using a C<strong>on</strong>fidential Report<br />
(or porti<strong>on</strong>s of it) submitted to this H<strong>on</strong>’ble Court, deviously and in<br />
an underhand manner to prejudice the Trials <strong>on</strong> in Gujarat and help<br />
the accused. I say and submit that the government of Gujarat first<br />
tried to do this surreptitiously in May 2002 when the not ecirculated<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> Smt Hemantika Wahi made unsubstantiated allegati<strong>on</strong>s against<br />
myself and our advocate Shri MM Tirmizi. This was deplored <str<strong>on</strong>g>by</str<strong>on</strong>g> this<br />
H<strong>on</strong>’ble Court who str<strong>on</strong>gly expressed its anguish at the<br />
government of Gujarat’s brazen attempts and inquired the source of<br />
41
the leak. Yet this did not stop the senior counsel, Shri Rohatgi from<br />
giving repeated televisi<strong>on</strong> interviews making the same baseless<br />
allegati<strong>on</strong>s. Thereafter in several applicati<strong>on</strong>s before the Trial<br />
Courts and the Gujarat High Court, accused have misused this<br />
selective leak <str<strong>on</strong>g>by</str<strong>on</strong>g> the government of Gujarat (the prosecuting<br />
agency in the case!!!) to demand the report <strong>on</strong> grounds that the<br />
allegati<strong>on</strong>s of tutoring could help their case!! For example, <strong>on</strong>e<br />
accused in the Sardarpura trial, Kantilal Patel approached the<br />
Gujarat High Court through a Criminal Revisi<strong>on</strong> Applicati<strong>on</strong> No. 705<br />
of 2009 seeking producti<strong>on</strong> of the copy of the report <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
SIT. The High Court has reserved orders in this case. I say and<br />
submit that the underhand way in which the government of Gujarat<br />
is a) undermining its own prosecuti<strong>on</strong> in all these 9 sensitive cases<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> deliberately and falsely undermining the credibility of the<br />
witnesses and the values of their testim<strong>on</strong>ies is a calculated and<br />
well designed attempt to enable the prosecuti<strong>on</strong> cases to be<br />
weakened and the accused who are all either office bearers,<br />
elected representatives or close associates of the ruling party to<br />
benefit and go scot free. I say and submit that these repeated<br />
attempts are nothing short of an attempt to thwart justice and<br />
influence the trials. I say and submit that now they have placed<br />
these vile allegati<strong>on</strong>s <strong>on</strong> affidavit there are even greater chances<br />
that if the trials c<strong>on</strong>tinue as is, the c<strong>on</strong>tenti<strong>on</strong>s of this motivated,<br />
defamatory and unsubstantiated affidavit will be used <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
accused and government, in collusi<strong>on</strong> to ensure mass acquittals in<br />
all these cases. I say and submit that the substance of the affidavit<br />
is a clear pointer to the fact that the prosecuterix state has no<br />
interest, superficial or genuine to see that justice is d<strong>on</strong>e in these<br />
cases of blatant human rights violati<strong>on</strong>s. I say and submit that<br />
42
therefore it is critical in the interests of due process and justice that<br />
these remarks are removed from the records of this H<strong>on</strong>’ble Court.<br />
This questi<strong>on</strong>able c<strong>on</strong>duct <str<strong>on</strong>g>by</str<strong>on</strong>g> the government of Gujarat in<br />
deliberately and selectively leaking secti<strong>on</strong>s of the report has<br />
opened a Pandora’s Box and now even emboldened them enough<br />
for the accused to, in collusi<strong>on</strong>, even demand videography <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
SIT that has a clearly questi<strong>on</strong>able evidentiary value in law<br />
c<strong>on</strong>sidering provisi<strong>on</strong>s of secti<strong>on</strong> 162 of the CrPC. Furthermore,<br />
following a similar pattern, following the last date of hearing before<br />
this H<strong>on</strong> Court <strong>on</strong> April 6, 2010, <strong>on</strong>e Bipin Patel who has been<br />
arraigned as accused <str<strong>on</strong>g>by</str<strong>on</strong>g> the Special Investigati<strong>on</strong> Team (SIT) in<br />
the Gulberg Society Massacre Case (152/2002) has sought the<br />
lifting of the stay <strong>on</strong> the trial in that case <strong>on</strong> grounds of delay<br />
despite the fact that he was out <strong>on</strong> bail within three weeks of being<br />
arrested <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT in February 2009. Worse still the facts revealed<br />
in his applicati<strong>on</strong> and the language used <str<strong>on</strong>g>by</str<strong>on</strong>g> him while making<br />
allegati<strong>on</strong>s against witness statements submitted <str<strong>on</strong>g>by</str<strong>on</strong>g> them to the<br />
SIT and also signed statements handed over <str<strong>on</strong>g>by</str<strong>on</strong>g> witnesses to the<br />
Special Investigati<strong>on</strong> Team is, uncannily similar to the language<br />
being used <str<strong>on</strong>g>by</str<strong>on</strong>g> Gujarat state counsel, <strong>on</strong> record and orally before<br />
this H<strong>on</strong>’ble Court as also Kallubhai Maliwad another powerful<br />
representative of the ruling dispensati<strong>on</strong> in Gujarat. I say and<br />
submit that it is clear that the accused are in Gujarat are privy to<br />
informati<strong>on</strong> that is not available to us.<br />
I further say and submit that so far, <strong>on</strong> <strong>22</strong>.2.2010 <strong>on</strong>e prosecuti<strong>on</strong><br />
witnesses, namely PW 283 Aslamkhan Anwarkhan Pathan<br />
respectively has named this accused, Shri Patel in court and also<br />
assigned him a role with a weap<strong>on</strong> in the mob that attacked<br />
Gulberg society.<br />
43
I say and submit therefore, that, at various levels it therefore<br />
appears that there are collaborative attempts between the state of<br />
Gujarat that is meant to further the case of the prosecuti<strong>on</strong> and<br />
prosecute mass crimes to, in fact discredit statements of the victim<br />
survivors, water down the gravity of the offences and weaken the<br />
case of the prosecuti<strong>on</strong>. It is crystal clear therefore that the fate of<br />
these sensitive cases is not safe within the state of Gujarat and we<br />
urge that the trials be transferred out of the state.<br />
38. I further say and submit that the averments made in paragraphs 33<br />
and 39 of the state’s rejoinder wherein the resp<strong>on</strong>dent states that I,<br />
Ms. <str<strong>on</strong>g>Teesta</str<strong>on</strong>g> <str<strong>on</strong>g>Setalvad</str<strong>on</strong>g> had asked the witnesses to tender the typed<br />
statements is a malafide allegati<strong>on</strong> that has been blatantly rebutted<br />
(though aggressively put to them) <str<strong>on</strong>g>by</str<strong>on</strong>g> the witnesses in the court<br />
during their evidence. It is very unfortunate that the Addl. Secretary<br />
of the State of Gujarat filing this affidavit relies up<strong>on</strong> the police<br />
statements of witnesses and places no value of the evidence given<br />
before the Trial Court.<br />
39. I specifically state and submit that the averments made in<br />
paragraph 33 about allegedly tutoring of witnesses are untrue. To<br />
the best of my knowledge, at no point in any testim<strong>on</strong>y before the<br />
court have witnesses said this. It is apparent that the government of<br />
Gujarat is selectively making use of 161 statements recorded <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
the SIT (in barely three four instances) to make baseless<br />
allegati<strong>on</strong>s. I crave leave to refer to and rely up<strong>on</strong> the evidence of<br />
the witnesses before the Court. We seek to attach as Annexure C<br />
Colly a set of Tables that point out what witnesses have said in<br />
their testim<strong>on</strong>ies before the Trial Courts <strong>on</strong> the issue of the<br />
affidavits affirmed <str<strong>on</strong>g>by</str<strong>on</strong>g> them both before the Police Commissi<strong>on</strong>er,<br />
44
Ahmedabad, the Trial Court and the Apex Court. We also attach as<br />
Annexure D Colly detailed Charts showing the C<strong>on</strong>tinued Failure<br />
of Fair Investigati<strong>on</strong> in the Ongoing Trials <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT as also the<br />
Status of the Cases in the Trial Courts.<br />
40. I say and submit that as far as paragraph 34 of the resp<strong>on</strong>dent<br />
affidavit is c<strong>on</strong>cerned, the state of Gujarat <strong>on</strong>ly relies up<strong>on</strong> the<br />
police statements and the affidavits of the witnesses knowing fully<br />
well that the statements before the police are inadmissible in law.<br />
The t<strong>on</strong>e of the affidavit strengthens the apprehensi<strong>on</strong> of<br />
jeopardizing the trials if the cases are permitted to c<strong>on</strong>tinue in<br />
Gujarat. I say and submit that as the trials progress and the need<br />
for exemplary and independent investigati<strong>on</strong> becomes urgent and<br />
necessary, the fact that a dispensati<strong>on</strong> that was in power while the<br />
carnage raged remains in power and in c<strong>on</strong>trol of the criminal<br />
justice system in the state, is more than likely to harm the<br />
deliverance of justice in these cases.<br />
41. I say and submit that I would specifically like to refute the baseless<br />
allegati<strong>on</strong>s made in paragraph 34 of the government of Gujarat’s<br />
affidavit where again, baseless allegati<strong>on</strong>s are made against me<br />
that are unsubstantiated <str<strong>on</strong>g>by</str<strong>on</strong>g> the affidavits annexed at page 304 of<br />
the Volume I. The government of Gujarat refers to two affidavits<br />
<strong>on</strong>e <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> Nanumiya Malek and the other <str<strong>on</strong>g>by</str<strong>on</strong>g> Madina Arif Malek<br />
who had both <str<strong>on</strong>g>filed</str<strong>on</strong>g> affidavits before this H<strong>on</strong>’ble Court in 2003. In<br />
her affidavit the victim, Madina, herself does not speak of gender<br />
violence (rape) whereas Nanumiya does. These are witnesses in<br />
the case of the Naroda Gaam case. Neither of the two witnesses<br />
have yet deposed before the Court. For the state of Gujarat to<br />
45
selectively pull these out before their testim<strong>on</strong>ies in court is clearly<br />
an attempt to obfuscate the actual matter at hand. The affidavits<br />
themselves state that they were affirmed <str<strong>on</strong>g>by</str<strong>on</strong>g> the victims and the<br />
victims would be best placed to answer any discrepancies if they<br />
arise especially in relati<strong>on</strong> to the 161 statements recorded <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
SIT. I further say and submit that in December 2008, while<br />
investigati<strong>on</strong>s were still <strong>on</strong> <str<strong>on</strong>g>by</str<strong>on</strong>g> the Special Investigati<strong>on</strong> Team (SIT)<br />
defence counsel appearing for the accused in the Naroda Gaam<br />
case leaked some of the 161 statements c<strong>on</strong>tained in the charge<br />
sheet (not yet <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT in the Trial Court at the time),<br />
selectively to secti<strong>on</strong>s of the media (The Indian Express) after<br />
which we had protested this selective leak to the SIT Chairpers<strong>on</strong><br />
Dr RK Raghavan and also issued a press release. We attach as<br />
Annexure D Colly a copy of our letter to the SIT Chairpers<strong>on</strong> as<br />
also the press release issued <str<strong>on</strong>g>by</str<strong>on</strong>g> the Citizens for Justice and Peace.<br />
I say and submit that neither have either of the two witnesses,<br />
deliberately quoted out of c<strong>on</strong>text in the media reports (through the<br />
selective leakage of 161 statements) I.e. Madina Arif Malek<br />
(Madina Rafik Pathan) nor Nanumiya Malek yet been examined in<br />
the Trial Court and for the defence to leak out statements made to<br />
the SIT to the media as far back as December 2008 is a c<strong>on</strong>scious<br />
and deliberate effort to thwart the due process of justice.<br />
I say and submit that in May 2009, both advocates for the state of<br />
Gujarat, attempted through their oral declarati<strong>on</strong>s before this<br />
H<strong>on</strong>’ble Court and thereafter <strong>on</strong> televisi<strong>on</strong> interviews to suggest<br />
that the alleged tragic and inhuman incident of Kauserbano, a nine<br />
m<strong>on</strong>th pregnant woman who’s womb was allegedly slit open <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
some of the powerful accused who enjoy state protecti<strong>on</strong> and her<br />
nine m<strong>on</strong>th old live foetus was swirled <strong>on</strong> a sword before being<br />
46
killed was a story c<strong>on</strong>cocted <str<strong>on</strong>g>by</str<strong>on</strong>g> me. I say and submit that the<br />
allegati<strong>on</strong> is not simply ludicrous but c<strong>on</strong>sciously detrimental to the<br />
process of justice. I say and submit that it is evident from the<br />
photographs of the brutally dismembered photographs of the<br />
bodies of unnamed victims of the Gulberg and Naroda massacres<br />
available with us that unspeakable violence had been committed <strong>on</strong><br />
children, women and men. Several accused have boasted of these<br />
acts <strong>on</strong> camera in Tehelka's Operati<strong>on</strong> Kalank which has been<br />
authenticated <str<strong>on</strong>g>by</str<strong>on</strong>g> the CBI. Post mortem reports of some of these<br />
simply say “burn injuries” as often happens in such cases of mass<br />
violence. Trials are still <strong>on</strong>. What could be the motive of the<br />
government of Gujarat to selectively, and publicly undermine the<br />
scale and extent of the tragedy except to protect accused who<br />
enjoy high level patr<strong>on</strong>age and were and are also, ministers in the<br />
state cabinet until recently? I say and submit that this H<strong>on</strong>’ble Court<br />
would find that official photographs and videography, mandatory<br />
under the law, that were taken of these scenes of violence <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
Gujarat police have also been c<strong>on</strong>cealed from the Trial Courts. I<br />
say nd submit that the SIT has not c<strong>on</strong>cerned itself with unearthing<br />
these photographs or the videography until after 173(8) applicati<strong>on</strong>s<br />
were <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g> witnesses.<br />
42. I further say and submit that the series of systematic and c<strong>on</strong>certed<br />
efforts taken <str<strong>on</strong>g>by</str<strong>on</strong>g> the State of Gujarat in collusi<strong>on</strong> with the powerful and<br />
influential accused pers<strong>on</strong>s enumerated herein above is a well<br />
thought of strategy of the State to intimidate me, malign my reputati<strong>on</strong><br />
and the organisati<strong>on</strong> that I represent to somehow ensure that the<br />
moral and emoti<strong>on</strong>al support to the victim survivors is broken. I say<br />
47
and submit that this is a malicious design to subvert the course of<br />
justice.<br />
43. I say and submit that the lackluster investigati<strong>on</strong> <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT headed<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> Dr Raghavan and the current team has, inter alia, amounted to a<br />
failure to<br />
i. to adequately investigate/ inquire into the larger c<strong>on</strong>spiracy of<br />
State complicity in the communal violence and the involvement<br />
of police officers, civil servants, ministers and politically<br />
influential individuals in these offences (both <str<strong>on</strong>g>by</str<strong>on</strong>g> way of actual<br />
involvement and <str<strong>on</strong>g>by</str<strong>on</strong>g> way of complicity: deliberate inacti<strong>on</strong>),<br />
ii.<br />
to deliberately exclude from examining, interrogating and<br />
establishing whether or not, through a systematic chain of<br />
command, the chief minister of the state ensured the<br />
breakdown of law and order and C<strong>on</strong>stituti<strong>on</strong>al Governance:<br />
this is transparently obvious in SIT’s failure to dig hard and<br />
deep into three of the worst eve incidents –at Naroda Patiya,<br />
Gulberg and Naroda Gaam – that have been probed <str<strong>on</strong>g>by</str<strong>on</strong>g> us<br />
through available records of the Police C<strong>on</strong>trol Room (PCR),<br />
Case Diaries of Local Police Stati<strong>on</strong>s and the Mobile Ph<strong>on</strong>e<br />
Records of all Major Functi<strong>on</strong>aries of the State Administrati<strong>on</strong><br />
ad key n<strong>on</strong>-State Actors including Accused.<br />
iii.<br />
to investigate the carefully planned build up of arsenal, men<br />
and arms in the leas up to the Godhra tragedy of 27 th February<br />
2002 (Volume II and III of CMP at pages 76-84 of the volume).<br />
This build up of bombs, swords, gas cylinders and chemical<br />
powders in preparati<strong>on</strong> for the carnage was exposed both in<br />
Tehelka’s Operati<strong>on</strong> Kalank and affidavits of police officers<br />
48
former DGP RB Sreekumar and former SP Bhavnagar and<br />
DCP Crime Branch Ahmedabad Rahul Sharma<br />
iv.<br />
has deliberately failed to investigate thoroughly documentary<br />
evidence including ph<strong>on</strong>e call records, mobile van records,<br />
c<strong>on</strong>trol room registers, stati<strong>on</strong> diary entries and fire brigade<br />
registers, a scrutiny of which would have indicated the levels<br />
of, and extent of pre-planning and c<strong>on</strong>spiracy that went into<br />
the post Godhra violence (Additi<strong>on</strong>al <str<strong>on</strong>g>Affidavit</str<strong>on</strong>g> to the CMP<br />
dated December 1, 2009)<br />
v. has failed to ensure that all those involved are arraigned as<br />
accused, and has failed to take adequate steps to prevent<br />
threats to and intimidati<strong>on</strong> of witnesses.<br />
vi.<br />
has also failed to apply for the cancellati<strong>on</strong> of bail of the most<br />
powerful arraigned ensuring that they are free while the trials<br />
are c<strong>on</strong>ducted.<br />
Naroda Patiya/Gaam Massacre<br />
In the cases relating to Naroda Patiya & Naroda Gaam<br />
where over 110 pers<strong>on</strong>s were brutally murdered and girls and<br />
women were brutally gang raped:<br />
(i)<br />
129 witness statements were NOT recorded <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT [Ref<br />
Vol B pg 256 – 260]<br />
(ii) Although numerous witness statements [Ref: Vol B: Sr No 3/<br />
Witness No 18 – Pg 260; Sr No 32/ Witness No <strong>22</strong>8/1 Pg 270,<br />
Sr No 53 / Witness No 409 Pg 276, Sr No 15/ Witness No 142<br />
Pg 264] had referred to the active involvement (police firing <strong>on</strong><br />
Muslim victims) and deliberate inacti<strong>on</strong> of policemen under<br />
the charge of Police Inspector K K Mysorewala (now<br />
promoted to Superintendent of Police) who had ordered police<br />
firing <strong>on</strong> Muslim victims after discussing with Maya Kodnani &<br />
49
who had repeatedly informed those desperately seeking his<br />
protecti<strong>on</strong> , that there were “instructi<strong>on</strong>s/ orders from higher<br />
authorities not to protect you “; “there is no order to save<br />
Muslims” & “you have to die today”; - has not been arraigned<br />
as an accused <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT. Nor has there been any<br />
investigati<strong>on</strong> <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT into the “higher authorities” which had<br />
given him the order/ instructi<strong>on</strong>s not to protect Muslims – nor<br />
has any such “higher authority” been arraigned <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT.<br />
An analysis of the call details of PI KK Mysorewala<br />
(09825190775) (now promoted) show that <strong>on</strong> 27.2.2002 there<br />
is <strong>on</strong>ly <strong>on</strong>e call received <str<strong>on</strong>g>by</str<strong>on</strong>g> him from his official number. The<br />
number calling was 09825047044. On 28.2.2002, his ph<strong>on</strong>e<br />
records show that he (Mysorewala, a policeman) was in touch<br />
with VHP accused, Jaideep Patel, accused in the Naroda<br />
Gam and Patiya cases. He received a call from Jaideep Patel<br />
(09825023887) at 10:55:20 for 28 sec<strong>on</strong>ds. He was shown in<br />
Narol, Naroda at the time and this was when the massacre<br />
was at its height. All this material has been placed <str<strong>on</strong>g>by</str<strong>on</strong>g> us<br />
before SIT and yet SIT has chosen to ignore the implicati<strong>on</strong>s<br />
and not c<strong>on</strong>duct further investigati<strong>on</strong>s.<br />
(iii)<br />
Although numerous witness statements [Ref: Vol B: Sr. No<br />
15/ witness No 407 Pg 264, Sr. No 51/ Witness No 406/1 Pg<br />
276 & Sr. No 54/ witness No 410 Pg 277, Sr. No 55 Witness<br />
No 412 Pg 277, Sr. No 56 Witness No 413 Pg 278, Sr. No 57<br />
Witness No 420 Pg 278, Sr. No 58 Witness No 421 Pg 278,<br />
Sr. No 61 Witness No 425 Pg 279, Sr. No 67 Witness No 433<br />
Pg 281] have referred to the actual involvement of the SRP<br />
Pers<strong>on</strong>nel and in particular SRP Officer K. P. Parekh in firing<br />
50
<strong>on</strong> fleeing Muslim victims, in encouraging the mob to attack<br />
Muslims and in categorically refusing to protect Muslims and<br />
who had informed hapless victims that “Today you have to<br />
die. No <strong>on</strong>e can save you. We will never save you, we have<br />
order from higher authorities to kill you”; -- neither officer K. P.<br />
Parekh nor any SRP pers<strong>on</strong>nel have been arraigned <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
SIT as an accused<br />
(iv)<br />
15 witnesses have named Babu Bajrangi Patel as the leader<br />
of the mob that slaughtered 95 people and of having<br />
pers<strong>on</strong>ally killed many & having cut open the stomach/ womb<br />
of Kauserbano and killed her foetus [Ref: Vol B Pgs 288 –<br />
292]. Despite this the SIT has not moved for cancellati<strong>on</strong> of<br />
his bail. He roams free today to threaten & intimidate victims<br />
& witnesses. He has even been allowed to go abroad. (CMP<br />
Pg 13)<br />
Babu Bajrangi Patel has also stated <strong>on</strong> video tape to Tehelka,<br />
that he was protected / housed <str<strong>on</strong>g>by</str<strong>on</strong>g> Chief Minister Modi in State<br />
Government guest house in Mount Abu, that his bail was<br />
managed and that judges were changed to get him bail. He<br />
has stated that justice Dholakia had refused bail and that his<br />
case was later brought before Justice Akshay Mehta in order<br />
to get him bail. Apparently there has been no investigati<strong>on</strong> /<br />
inquiry into these aspects <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT.<br />
(v)<br />
53 witnesses have named Suresh Langda Richard Chara of<br />
instigating the mob to rape, kill & burn Muslims and of being<br />
directly involved in murder and rape [Ref: Vol B Pgs 292 to<br />
297]. Despite this, the SIT has not moved for cancellati<strong>on</strong> of<br />
51
his bail. He roams free to threaten and intimidate victims &<br />
witnesses (CMP Pg 13)<br />
Suresh Chara has stated <strong>on</strong> videotape that he was<br />
c<strong>on</strong>gratulated & garlanded <str<strong>on</strong>g>by</str<strong>on</strong>g> Chief Minister Modi when he<br />
arrived there later in the evening. Apparently there has been<br />
no inquiry/ investigati<strong>on</strong> into this aspect <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT.<br />
Gulberg Case<br />
Applicati<strong>on</strong>s for arraying new accused have been made <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
witnesses, granted in part <str<strong>on</strong>g>by</str<strong>on</strong>g> the Trial Court and the appeal is<br />
pending before the Gujarat High Court.<br />
This offence relates to the cold-blooded rape and killing of 70<br />
hapless Muslim victims including Ahsan Jafri, in the heart of<br />
Ahmedabad city, over a 11 hour period <strong>on</strong> 28 th<br />
February<br />
2002.<br />
i. Significantly the SIT has arraigned an additi<strong>on</strong>al 25 pers<strong>on</strong>s<br />
as accused, including K. G. Erda: PI Meghaninagar Police<br />
Stati<strong>on</strong> (now promoted to ACP) who was also the<br />
Investigating Officer for this case/ offence. However the SIT<br />
has totally failed to inquire/ investigate into the<br />
circumstances in which repeated calls for police assistance<br />
went unheeded, in the very heart of Ahmedabad city, for<br />
almost eight hours and whether this was merely criminal<br />
neglect or a matter of design.<br />
ii.<br />
P.I. Erda’s ph<strong>on</strong>e records shows that during the hours of the<br />
carnage <strong>on</strong> 27 th & 28 th February 2002 he had made regular<br />
52
calls (23 calls: 13 + 10) to the Police C<strong>on</strong>trol Room / Police<br />
Commissi<strong>on</strong>er P C Pande, calls (2) to Joint Commissi<strong>on</strong>er<br />
M.K. Tand<strong>on</strong> & calls (2) to DCP G<strong>on</strong>dia.<br />
The SIT has<br />
apparently not interrogated Joint Commissi<strong>on</strong>er Tand<strong>on</strong>, or<br />
DCP G<strong>on</strong>dia or Commissi<strong>on</strong>er P.C.Pande (now DGP<br />
Gujarat State) as to the nature of their communing with PI<br />
Erda and the steps they took in the matter or their failure to<br />
resp<strong>on</strong>d / act.<br />
iii.<br />
Joint CP Tand<strong>on</strong> has admitted to the Nanavatii Commissi<strong>on</strong><br />
that he was teleph<strong>on</strong>ically informed at 2.00 pm that Ahsan<br />
Jafri was in mortal danger; - he apparently did nothing.<br />
Commissi<strong>on</strong>er of Police P. C. Pande had in fact visited<br />
Gulberg Society at 10.30 am and promised Ahsan Jafri<br />
adequate police protecti<strong>on</strong>/ assistance – no such protecti<strong>on</strong><br />
was in fact made available. PC Pande’s call records indicate<br />
that from 2.30 pm to 9.00 pm <strong>on</strong> the 28 th he was in touch<br />
with police officers in charge of these riot hit areas. The SIT<br />
does not appear to have questi<strong>on</strong>ed Pande or Tand<strong>on</strong> or<br />
pursued the matter.<br />
iv.<br />
Moreover it is undisputed that two cabinet ministers Ashok<br />
Bhatt & I. K. Jadeja were sitting at the Police C<strong>on</strong>trol Rooms<br />
in Ahmedabad City & at Gandhinagar. Ahsan Jafri made<br />
almost 200 calls for assistance. PI Erda spoke regularly to<br />
the Police C<strong>on</strong>trol Room. The SIT has apparently not<br />
questi<strong>on</strong>ed either Bhatt or Jadeja as to their role, acts/<br />
inacti<strong>on</strong> in the C<strong>on</strong>trol Room or pursued this matter.<br />
53
v. In fact Mr. Shivanand Jha member SIT was the Asst.<br />
Commissi<strong>on</strong>er of Police Ahmedabad and in charge of the<br />
C<strong>on</strong>trol Room – and would accordingly be able to depose as<br />
to the calls received from PI Erda, the role of the cabinet<br />
ministers who were present & P C Pande.<br />
vi.<br />
The C<strong>on</strong>cerned Citizens Tribunal 2002 (headed <str<strong>on</strong>g>by</str<strong>on</strong>g> Justice<br />
VR Krishna Iyer) had recorded the statement of a cabinet<br />
minister that <strong>on</strong> 27 th<br />
evening a meeting was held <str<strong>on</strong>g>by</str<strong>on</strong>g> the<br />
Chief Minister, with the Home Minister, the Chief Secretary<br />
Subba Rao, the DG Police Chakravarti & Police<br />
Commissi<strong>on</strong>er Pande at which the Police were instructed not<br />
to do anything to c<strong>on</strong>tain the “Hindu reacti<strong>on</strong>” after Godhra<br />
Shri Sreekumar Addl. DGP R.B. Sreekumar has <strong>on</strong> affidavit<br />
stated that he met DGP Chakravarti in the Chief Ministers<br />
antechamber and was informed <str<strong>on</strong>g>by</str<strong>on</strong>g> him that the Police had<br />
been instructed not to act. Before filing the charge sheets in<br />
these crucial nine cases, despite all this material available,<br />
the SIT does not appear to have questi<strong>on</strong>ed either Chief<br />
Minister Modi, or Chief Secretary Subba Rao, or DGP<br />
Chakravarti or ADGP Sreekumar – or pursued this aspect of<br />
the investigati<strong>on</strong>.<br />
Sardarpura Case<br />
In this case also being tried at present in a special court, the<br />
role of the SIT has been superficial and designed with a view<br />
to ignore investigating substantive documentary evidence.<br />
Key witnesses (police) present at the district police stati<strong>on</strong>s<br />
and c<strong>on</strong>trol rooms have not been examined as have not key<br />
54
witnesses (CRMP 19816 page 11-13). A criminal applicati<strong>on</strong><br />
has been <str<strong>on</strong>g>filed</str<strong>on</strong>g> before the Gujarat High Court in this regard.<br />
44. In fact the SIT has shown a singular lack of interest in inquiring/<br />
investigating into the circumstances in which<br />
(i)<br />
the Police force either played an active role in the riots/<br />
attacks/ offences at Gulberg & Naroda, or stood <str<strong>on</strong>g>by</str<strong>on</strong>g> and<br />
allowed the commissi<strong>on</strong> of the offences & failed & refused to<br />
provide protecti<strong>on</strong> to the hapless victims often stating that<br />
they were under instructi<strong>on</strong>s to refuse assistance/ protecti<strong>on</strong><br />
(ii)<br />
senior officers at the Police C<strong>on</strong>trol Room failed to react to<br />
repeated calls for assistance and despite being in<br />
communicati<strong>on</strong> with the officers at the riot sites , stood <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
while a bloodbath / orgy of violence c<strong>on</strong>tinued for 11 hours<br />
in the very heart of the city<br />
(iii)<br />
the evident involvement of two ministers of the Government<br />
in the c<strong>on</strong>trol room , where informati<strong>on</strong> was received of<br />
these situati<strong>on</strong>s – but no steps taken to resp<strong>on</strong>d thereto<br />
(iv)<br />
the role of the chief minister, home minister, chief secretary,<br />
DGP Chakravarti & Police Commissi<strong>on</strong>er P C Pande in<br />
ensuring that no effective steps were taken to prevent or<br />
curtail the bloodbath/ orgy of rape and violence which<br />
c<strong>on</strong>tinued for as much as 12 hours in the heart of the city.<br />
(v)<br />
The analysis of Police C<strong>on</strong>trol Room (PCR) records that<br />
had been withheld <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT from the charge sheet until<br />
witnesses <str<strong>on</strong>g>filed</str<strong>on</strong>g> an applicati<strong>on</strong> under secti<strong>on</strong> 173(8) of the<br />
CrPC are disturbing and revealing. They raise more<br />
questi<strong>on</strong>s than they answer. For instance the PCR records<br />
show that DCP of the area, Praveen B G<strong>on</strong>dia asks for 330<br />
55
ounds pf ammuniti<strong>on</strong> to be sent to Gulberg society as late<br />
as 6.15 p.m. when the massacre is finished. While the<br />
request is recorded in the data, there is no follow up record<br />
in the PCR records to show that the request was futile and<br />
anything was at all dispatched.<br />
(vi)<br />
Similarly through all these investigati<strong>on</strong>s the authorities,<br />
state government and the SIT have been cagey and<br />
reluctant to divulge details of the chief minister’s movements<br />
in the critical period between February 27 – March 4, 2002.<br />
Now, following the further investigati<strong>on</strong> plea <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
witnesses, PCR records show that:<br />
----- at 15:51 <strong>on</strong> February 28 2002, the VIP C<strong>on</strong>trol Room,<br />
Gandhinagar informs C<strong>on</strong>trol Room, Ahmedabad that chief<br />
minister Narendra Modi has left Gandhinagar for a<br />
programme at “Ahmedabad Galaxy”; PCR says he reaches<br />
Shahibaug Galaxy in 9 mins; the PCR states at 17:41 the<br />
CM completes the programme at “Annexe” and returns to<br />
Gandhinagar in 41 mins.<br />
Independent investigati<strong>on</strong>s reveal that around this time, the<br />
chief minister called a meeting of police officers at the<br />
Shahibaug Circuit House, where some senior officers had<br />
raised serious c<strong>on</strong>cerns about the massacres at Gulberg<br />
and Naroda It is reported that the chief minister then turned<br />
to PC Pande for details of the same and the latter said<br />
nothing much had transpired. The officers who had raised<br />
queries it is reported were subsequently transferred.<br />
Tehelka’s Operati<strong>on</strong> Kalank records <strong>on</strong>e of the accused<br />
Suresh Langda Chaara saying that around 7 p.m. of the<br />
evening of Febuary 28, 2002, the chief minister had arrived<br />
56
at Patiya and actually c<strong>on</strong>gratulated the young men who had<br />
committed murder and rape. Ph<strong>on</strong>e call records of the close<br />
coterie of the chief minister also show that they were all in<br />
the vicnity of the Shahibaug C<strong>on</strong>trol Room and/or the<br />
Shahibaug Circuit House Annexe in the afterno<strong>on</strong>/ evening<br />
hours of February 28, 2002. However while the violence was<br />
raging, though all in the vicinity, neither the chief minister,<br />
not his cabinet colleagues, nor senior police officials went to<br />
either the Gulberg Society nor the Naroda areas. Neither did<br />
they visit the areas after the meeting at the Shahibaug<br />
Annexe.<br />
45. I say and submit that a Scrutiny of Annexure B Colly, especially<br />
the Locati<strong>on</strong>al Details of Powerful Policemen, Administrators and<br />
Accused in the Meghaninagar Area (where Gulberg Society is<br />
located) and the Naroda Area (where the Naroda Patiya and Gaam<br />
carnages took place) at odd hours, <strong>on</strong> February 27, 2002 when the<br />
chief minister was at Godhra –especially when these areas were<br />
not protected enough the next day because they are not historically<br />
known as communally sensitive is revealing. I crave leave to rely<br />
up<strong>on</strong> Annexure B Colly that details this Locati<strong>on</strong>al Analysis first<br />
<strong>on</strong> February 27 2002 and thereafter <strong>on</strong> February 28, 2002.<br />
I say and submit that a Thorough Professi<strong>on</strong>al and Independent<br />
Investigati<strong>on</strong> into the Integrity of the CD and Its C<strong>on</strong>tents needs to<br />
be undertaken. The ph<strong>on</strong>e call records of the chief of police, PC<br />
Pande’s need to be collated with wireless communicati<strong>on</strong>s, c<strong>on</strong>trol<br />
book records, message books and ph<strong>on</strong>e records. This has been<br />
studiously avoided <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT.<br />
57
46. I say and submit that it is clear from the averments in the state’s<br />
affidavit in paragraphs 35-36 that it has tried to collapse the two<br />
separate sets of investigati<strong>on</strong>s entrusted to the Special<br />
Investigati<strong>on</strong> Team, <strong>on</strong>e <str<strong>on</strong>g>by</str<strong>on</strong>g> way of an order of 26.3.2009 and<br />
another <str<strong>on</strong>g>by</str<strong>on</strong>g> an order of 27.3.2009. The order passed in the case<br />
being SLP (Crl) 1088/ 2008 is passed in an independent petiti<strong>on</strong>.<br />
The Petiti<strong>on</strong>ers have exercised discipline <str<strong>on</strong>g>by</str<strong>on</strong>g> ensuring that matters<br />
which does not c<strong>on</strong>cern the subject matter of the present<br />
proceedings are not brought in discussi<strong>on</strong> in these proceedings. I<br />
humbly pray that the State be directed to do the same. I am not<br />
resp<strong>on</strong>ding to the allegati<strong>on</strong>s c<strong>on</strong>cerning issues raised in the SLP<br />
(Crl)No.1088 of 2008 in this affidavit. I crave leave of this H<strong>on</strong>’ble<br />
Court to resp<strong>on</strong>d to the allegati<strong>on</strong>s in case the same are being<br />
c<strong>on</strong>sidered <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court in these proceedings.<br />
47. I would simply like to say at this stage state in relati<strong>on</strong> to paragraph<br />
35 that Annexure R/A-5 refers to the affidavit of the State of<br />
Gujarat. The State has c<strong>on</strong>veniently refused to comment <strong>on</strong> the<br />
affidavit of the petiti<strong>on</strong>ers therein that was <str<strong>on</strong>g>filed</str<strong>on</strong>g> and shown in the<br />
status report. While the matter of Zakia Jafri is not <strong>on</strong>e of those 9<br />
cases for which SIT was c<strong>on</strong>stituted and therefore is not the subject<br />
matter of this applicati<strong>on</strong> directly, however, <strong>on</strong>e of the accused<br />
named in that complaint is an investigating officer working with the<br />
SIT, who <str<strong>on</strong>g>by</str<strong>on</strong>g> an order of this H<strong>on</strong>’ble Court has been asked to<br />
refrain from participating in the investigati<strong>on</strong>s (April 6, 2009). I say<br />
and submit that through this affidavit, the state of Gujarat appears<br />
to be undertaking an exercise earlier undertaken <str<strong>on</strong>g>by</str<strong>on</strong>g> a former MLA<br />
of the ruling party, Kallubhai Maliwad, that is seeking a review of<br />
58
the order passed <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble Court directing the SIT to look into<br />
the complaint and take all necessary steps provided under the law.<br />
I further say and submit that as C<strong>on</strong>vener of the C<strong>on</strong>cerned<br />
Citizens’ Tribunal headed <str<strong>on</strong>g>by</str<strong>on</strong>g> Justice VR Krishna Iyer and PB<br />
Sawant (retired judges of this H<strong>on</strong>’ble Court) ingredients of the<br />
complaint thereafter registered <str<strong>on</strong>g>by</str<strong>on</strong>g> St Jafri had been collected <str<strong>on</strong>g>by</str<strong>on</strong>g> us<br />
and presented in the three-volume report Crimes Against<br />
Humanity—Gujarat 2002 <strong>on</strong> November 21-<strong>22</strong>, 2002. These<br />
included reports and allegati<strong>on</strong>s of illegal meetings and instructi<strong>on</strong>s<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> no less than the chief minister, unc<strong>on</strong>stituti<strong>on</strong>al behavior <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
cabinet ministers sitting in the Ahmedabad City and Gujarat Police<br />
State C<strong>on</strong>trol Rooms and City C<strong>on</strong>trol Rooms to influence the<br />
behaviour of policemen etc. I say and submit that thereafter,<br />
detailed corroborati<strong>on</strong>s of the ingredients of the state level<br />
complicity, planning and premeditati<strong>on</strong> into not just committal of<br />
heinous crimes that killed 2,500 members of a minority community<br />
in 2002, but brazen efforts and misuse of the C<strong>on</strong>stituti<strong>on</strong>al and<br />
Administrative Machinery of the State to destroy evidence, subvert<br />
the process of justice and overpower the criminal justice system,<br />
came to be known through affidavits and records filled <str<strong>on</strong>g>by</str<strong>on</strong>g> both<br />
errant and resp<strong>on</strong>sible officers of the police administrati<strong>on</strong>. These<br />
were carefully collated with the original ingredients and together the<br />
complaint dated June 8, 2006 drafted. Thereafter in October 2007,<br />
the expose in Tehelka magazine (Operati<strong>on</strong> Kalank) gave more<br />
ghastly details about the murderous c<strong>on</strong>spiracy.<br />
48. I say and submit that the averments and perverse innuendoes<br />
c<strong>on</strong>tained in paragraph 38 of the government of Gujarat’s affidavit,<br />
related To the Judge Mehta Report <strong>on</strong> the Godhra Case is<br />
59
illustrative of a mindset that militates against Indian C<strong>on</strong>stituti<strong>on</strong>al<br />
Principles. I say and submit that we have c<strong>on</strong>sistently maintained<br />
that many of the accused of the ars<strong>on</strong> <strong>on</strong> the S-6 Sabarmati<br />
Express Coach were allegedly innocent poor pers<strong>on</strong>s picked up <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
the state of Gujarat agencies in combing operati<strong>on</strong>s, including <strong>on</strong>e<br />
Iqbal Mamdu who is near 100 per cent blind.<br />
I say and submit that we have also made some averments vis a vis<br />
the Godhra trial in the Cri MP 19816/2009 and will reply up<strong>on</strong> the<br />
same at the time of final arguments. I say and submit that such<br />
averments as those made in this paragraph are both bad in taste<br />
and also violate Indian C<strong>on</strong>stituti<strong>on</strong>al and Criminal Law.<br />
49. I say and submit that the averments in paragraph 39 c<strong>on</strong>tain<br />
loosely stated desires of the Gujarat Government to have directives<br />
for<br />
a) criminal case registered against me and<br />
b) invite notices from this H<strong>on</strong>’ble Court to all state governments<br />
for a law against citizens petiti<strong>on</strong>ing against crimes of a high order<br />
and magnitude:<br />
militates against the very essence of the India’s C<strong>on</strong>stituti<strong>on</strong> and<br />
our secular, democratic republic. I say and submit that the<br />
reas<strong>on</strong>s we can be rightly proud as an independent nati<strong>on</strong> is<br />
having evolved noti<strong>on</strong>s of transparency and accountability in<br />
governance. That this accountability and transparency has been<br />
hard w<strong>on</strong> and due to the efforts and acti<strong>on</strong>s of individuals and<br />
instituti<strong>on</strong>s to preserve basic democratic rights and freedoms.<br />
I further say and submit that the fact that eight years down, there is<br />
not a line or paragraph in the 68 page affidavit, that expresses<br />
60
egret or remorse for the violence of 2002, does not offer respect<br />
or c<strong>on</strong>cern for the victim survivors itself reveals the mind and heart<br />
of the Gujarat Government that is ruthless, dictatorial and unmindful<br />
of basic issues of due process of law.<br />
50. I say and submit that through the entire progress of this struggle for<br />
justice for the victim survivors of the genocidal carnage of 2002 in<br />
Gujarat, where state complicity of the very highest level, including<br />
the elected chief minister of the state, there have been persistent,<br />
periodic and malicious attempts to malign my reputati<strong>on</strong>, integrity,<br />
motive <str<strong>on</strong>g>by</str<strong>on</strong>g> the State.<br />
51. I say and submit that I myself as a journalist and co-editor of<br />
Communalism Combat and as Secretary to a legal rights group.<br />
Citizens for Justice and Peace, formed after the genocidal carnage<br />
of 2002, the c<strong>on</strong>tenti<strong>on</strong>s in several paragraphs of the Petiti<strong>on</strong> are<br />
frivolous and dilatory. The substantive efforts of our group,<br />
collectively backed <str<strong>on</strong>g>by</str<strong>on</strong>g> the rigour of the victim survivor is a<br />
systematic attempt <str<strong>on</strong>g>by</str<strong>on</strong>g> a victim survivor assisted <str<strong>on</strong>g>by</str<strong>on</strong>g> a legal rights<br />
group to collate the shameful facts behind a state sp<strong>on</strong>sored<br />
genocidal carnage of the greatest magnitude involving resp<strong>on</strong>sible<br />
members of the political class, the administrative service and the<br />
police service.<br />
52. I further say and submit that myself, and our organizati<strong>on</strong> and<br />
lawyers, have been sought to be maligned repeatedly through the<br />
proceedings in the Best Bakery case, during the hearing in the<br />
present matter and while offering legal help to victims of mass<br />
crimes of 2002. In this c<strong>on</strong>necti<strong>on</strong> I say and submit that the whole<br />
61
issue of citizens groups assisting victims and witnesses in the<br />
process of testim<strong>on</strong>y and getting justice is a principle now well<br />
recognized in nati<strong>on</strong>al criminal law, jurisprudence and internati<strong>on</strong>al<br />
law. We crave leave to refer to the necessary reference/ citati<strong>on</strong>s/<br />
statutes, nati<strong>on</strong>al and internati<strong>on</strong>al to give substance to our claim<br />
as when the need may arise.<br />
53. I say and submit that the repeated innuendoes in Paragraphs 3,<br />
5,12, <strong>22</strong>, 33,34,38 and 29 of the affidavit relating to the mind and<br />
inspirati<strong>on</strong> behind this complaint both belittles the ag<strong>on</strong>y and quest<br />
for justice of the Victim Survivor as also raises key questi<strong>on</strong>s about<br />
the motives behind the allegati<strong>on</strong>s. It is a well-accepted principle of<br />
criminal jurisprudence that citizens, victims, and all peoples have<br />
the right and duty to have crimes interrogated prosecuted and<br />
punished. This is the essence of a healthy democratic society and a<br />
vibrant criminal justice system. Often in our country the delays in<br />
trials, especially during mass crimes renders such assistance<br />
pivotal and critical. Instead of appreciati<strong>on</strong> of such efforts, digging<br />
out motives is the work of petty minds. We crave leave to address<br />
this issue at the stage it becomes relevant. I further say and submit<br />
that the malicious allegati<strong>on</strong>s against our advocate Shri MM Tirmizi<br />
who has valiantly fought for victims of the carnage of 2002, single<br />
handedly in selfless service, are attempts to target a lawyer<br />
committed to human rights and minority rights and these attempts<br />
speak ill of those in power and the powerful within the state of<br />
Gujarat.<br />
54. I say and submit that given the attitude of the government of<br />
Gujarat in these nine sensitive cases, and also its deliberately slow<br />
62
process in the 2,000 cases review despite the orders of this H<strong>on</strong>’ble<br />
Court (paragraph <strong>22</strong> is just <strong>on</strong>e example) this H<strong>on</strong>’ble Court may<br />
direct the Chief Justice, Gujarat to c<strong>on</strong>stitute special benches to<br />
dispose of, within a time bound manner all cases arising out of the<br />
carnage of 2002. I say and submit that in the absence of such<br />
orders it is likely that these crucial cases, many of whom lie in<br />
appeal will not be heard for about 20 years!!<br />
55. In my humble submissi<strong>on</strong>, my understanding of the reas<strong>on</strong>s for a<br />
special investigati<strong>on</strong> team (SIT) to be appointed in a case are two.<br />
One, to be the eyes and ears of this H<strong>on</strong>’ble Court and to report to<br />
this H<strong>on</strong>’ble Court the manner in which progress is being made in<br />
the c<strong>on</strong>duct of the cases referred to it and two, to actually replace<br />
the local police investigati<strong>on</strong> team in view of their obvious incompetence<br />
and dis-inclinati<strong>on</strong> to carry out the investigati<strong>on</strong> in the<br />
manner the cases warranted, and c<strong>on</strong>duct an investigati<strong>on</strong> which is<br />
fair, thorough and fully competent to aid in the criminal trial that<br />
follows the investigati<strong>on</strong>.<br />
56. Similarly, it is my understanding that the directi<strong>on</strong>s issued <str<strong>on</strong>g>by</str<strong>on</strong>g> this<br />
H<strong>on</strong>’ble Court directing the SIT to carefully choose the prosecutors<br />
and the directi<strong>on</strong>s issued for the case to be heard <str<strong>on</strong>g>by</str<strong>on</strong>g> hand picked<br />
judges <str<strong>on</strong>g>by</str<strong>on</strong>g> the H<strong>on</strong>’ble High Court of Gujarat was to ensure that a<br />
fair trial takes place in all the trials that are being m<strong>on</strong>itored.<br />
57. I say and submit that I understand that the roles of pers<strong>on</strong>s like the<br />
Petiti<strong>on</strong>ers herein and the organizati<strong>on</strong>, Citizens for Justice and<br />
Peace who are supporting the witnesses are <strong>on</strong>ly to facilitate a<br />
process wherein witnesses who need the support to access any of<br />
63
the forums and who are not accessed <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT are provided that<br />
support. The main role in my humble submissi<strong>on</strong> is that of the SIT.<br />
58. Unfortunately, as was brought to the notice of this H<strong>on</strong>’ble Court in<br />
the Crl.M.P.No. 19816 of 2009 and the subsequent affidavit <str<strong>on</strong>g>filed</str<strong>on</strong>g> <str<strong>on</strong>g>by</str<strong>on</strong>g><br />
me, there are huge shortcomings in the role performed <str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT<br />
when compared to the expectati<strong>on</strong>s that were set <str<strong>on</strong>g>by</str<strong>on</strong>g> this H<strong>on</strong>’ble<br />
Court when it was c<strong>on</strong>stituted. I say and submit that the state of<br />
Gujarat <str<strong>on</strong>g>by</str<strong>on</strong>g> filing its defamatory affidavit, curiously at a belated stage<br />
in this process appears to be unnaturally c<strong>on</strong>cerned about any<br />
correcti<strong>on</strong>al matters and overtly committed to the inadequate<br />
investigati<strong>on</strong>, minus crucial documentary evidence, as resorted to<br />
<str<strong>on</strong>g>by</str<strong>on</strong>g> the SIT.<br />
59. I say and submit that the annexures <str<strong>on</strong>g>filed</str<strong>on</strong>g> with the present rejoinder<br />
affidavit are true copies of their respective originals.<br />
Dep<strong>on</strong>ent<br />
Verificati<strong>on</strong>:<br />
Verified at Ahmedabad <strong>on</strong> this <strong>22</strong> nd day of April 2010 that the c<strong>on</strong>tents of<br />
the above affidavit are true and correct, no part of it is false and nothing<br />
material has been c<strong>on</strong>cealed therefrom.<br />
Dep<strong>on</strong>ent.<br />
64