IN THE SUPREME COURT OF INDIA

EXTRA-ORDINARY ORIGINAL JURISDICTION

CRL.M.P.19816 OF 2009

IN

WRIT PETITION (CRL) NO.37-52 OF 2002

IN THE MATTER OF:

FR.CEDRIC PRAKASH AND OTHERS PETITIONERS

VERSUS

STATE OF GUJARAT AND OTHERS RESPONDENTS

AFFIDAVIT IN REJOINDER ON BEHALF OF THE PETITIONER

1. I, Teesta Setalvad, daughter of Atul Setalvad, age 48 years,

residing at Nirant, Juhu Tara Road, Mumbai solemnly state as

under:

2. I am the Petitioner no.5 in the present case and I am fully aware of

the facts circumstances of the present case and am duly competent

to swear and depose as under.

3. I say that I have gone through the affidavit in reply filed by the State

of Gujarat. Unless specifically admitted by me hereunder, each and

every allegation made therein is denied as false.

4. Before I deal with the contentions made in the affidavit in reply, I

would like to state my understanding of the directions of this

Hon’ble Court to the State of Gujarat with respect to the present

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affidavit. The directions issued on April 6, 2010 were permission to

respond to the application filed by the Petitioners and the response

of the SIT to the application. The Petitioners do not have copies of

the SIT response to the application. My response therefore is

based on my understanding of the responses in the context of the

orders passed by this Hon’ble Court and the manner in which the

State has dealt with the same in its affidavit-in-reply.

5. I humbly pray that in view of the limited scope of the reply that the

State was permitted to file, all other irrelevant

contentions/allegations must be expunged and taken off the record

and the State should be directed to file a fresh affidavit focusing on

the issues raised presently and taking out slanderous allegations

made against me personally.

6. My understanding of the reasons for appointment of a SIT by this

Hon’ble Court are as under:

(i) FIRs had been wrongly and incompletely recorded &

names of accused officers & those politically connected had

been dropped/excluded

(ii) That inquiries / investigations had not been adequately

carried out especially regarding the involvement of police

officers, civil servants and politically influential individuals in

these offences both by way of actual involvement and by

way of complicity: deliberate inaction;

(iii) That this deliberate and criminal negligence and non-

performance of duties enjoined by law, on part of senior

officers and authorities of the State need hardnosed

independent scrutiny;

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(iv) That the investigations had completely ignored and stopped

short of bringing to light the large conspiracy in the

unprecedented State-wide organized violence, violence,

with many common features and a pattern to it, which

reasonably pointed to systemic involvement of the entire

apparatus of the Government of Gujarat.

(v) That evidence, documentary and otherwise, collected by

official channels both before the tragedy of 2002 (reports of

State Intelligence, Gujarat and Uttar Pradesh and other

states) and after (affidavits of police officers before the

Nanavati Shah Commission and Tehelka’s Operation

Kalank) suggest that this conspiracy could extend even prior

to February 27,2002 when the tragic burning of the S-6

Coach of the Sabarmati Express at Godhra took place;

(vi) There were threats to and intimidation of witnesses

(vii) Prosecutors were appointed who had earlier appeared for

the accused and who were associated with organizations

who were involved in the offences,

(viii) Bail Orders granted out of turn by the lower and higher

courts in Gujarat ensured that that these politically influential

accused moved free in areas and neighborhoods of their

influence that were also the sites of the worst carnages.

7. I say and submit that the contentions of the government of Gujarat

at paragraph 2 of its affidavit dated April 16, 2010 are wrong in fact

and belie the history of this litigation. The respondent government

of Gujarat has consistently resisted efforts at transparency and

accountability and deliverance of justice and this has been taken

into account by this Hon’ble Court on many occasions during the

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course of the proceedings of the present set of petitions as well as

in concluded cases namely Zahira Habibullahs Shaikh v/s state of

Gujarat reported in 2004 4 SCC 138 and much more recently in a

related matter of Rubabuddin Shaikh v/s State of Gujarat reported

in JT 2010 (1) SC 99.

8. I say and submit that unlike the contentions laid down in

paragraphs 2, 8 and in other places in the affidavit in reply, where

the state would like to suggest that they have, post the genocidal

carnage of 2002, worked assiduously towards the deliverance of

justice and besides, complied with the orders of this Hon’ble Court,

the experience of those suffering at the hands of an unrepentant

state are the diametric opposite. I say and submit that on repeated

occasions the state of Gujarat has misled this Hon’ble Court on

affidavit and I draw attention especially to the order of this Hon’ble

Court passed on July 12, 2004 where it is stated in black and white

that misleading set of bail orders were filed to give an incorrect

picture to this Hon’ble Court on the facts on the ground. This had

led the amicus curiae then to actually get all bail orders (of

Sessions courts and the High Court) translated and thereafter

submit a detailed application to this Hon’ble Court on July 12, 2004

(that was treated as an application). I say and submit the order of

this Hon Court dated July 12, 2004 supports the contentions made

by the Petitioners. I crave leave to rely on this order to establish this

point.

9. I say and submit that, contrary to the averment in paragraph 2 of

the affidavit, the government of Gujarat has always objected to the

genuine and bonafide applications of the hapless victims. This is

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true with the ongoing trials whether it be applications under section

319 of the Code of Criminal Procedure (referred to as the Code) to

enable the impleading of new accused, or under section 173(8) of

the Code for further investigation.

I vehemently deny the averment in paragraph 3 of the said affidavit

and state that there is no question of attacking Gujarat. The

government of a state (Gujarat) does not mean the Gujarati people.

The act of enabling justice to poor cannot be termed as an ulterior

motive.

Specifically, the state has admitted the truth in paragraph 4 of their

affidavit that the SIT ”was constituted in spite of the contention of

the state government that the investigations conducted by the

Gujarat police is legal, valid and thorough.” Therefore, their

contention thereafter made in paragraph 2 that the state of Gujarat

had “never objected to or opposed to any prayers reasonably made

by any of the parties or any suggestions coming from the amicus

curiae to unearth the truth”, is contradictory to their above

statement, unless the state still maintains that the constitution of the

SIT was unreasonable. Most surprisingly, in paragraph 3 of the

affidavit of the State of Gujarat, it is stated that “… there are several

rumours and false speculations floated by the present applicant and

other vested interest groups regarding riots in 2002. The State of

Gujarat was also not averse to getting such rumours and

speculations examined by a independent body and therefore not

only did not object but agreed for nine major cases identified by this

Hon’ble Court being further investigated by a neutral body ….”,

which tantamount to saying that the SIT was constituted by this

Hon’ble Court to investigate into mere rumours and false

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speculations and that this Hon’ble Court undertook an

unprecedented course in the pursuit of public justice on such flimsy

grounds! (The counter to the logic herein is dealt with further in

paragraph 14 hereafter).

10. I further say and submit that the government of Gujarat is

misrepresenting facts in paragraphs 5 (ii) and (v) of its affidavit

stating that our application for the re-constitution of the SIT has

“come at a peculiar stage” or “is a belated attack on the SIT.” I wish

to state humbly and simply that the Petitioners herein and the

victims of the genocide had co-operated fully with the SIT and given

them detailed information about the attacks and violence. Through

the process of recording of evidence and complaints of the

behaviour of Gujarat officers were brought to the attention of the

SIT by witnesses immediately in writing. It was still a shock

however to find that, after final investigation reports were filed by

the SIT in certain cases, one discovered the manner in which SIT

was conducting itself and there were serious concerns raised about

the ability and willingness of the SIT to form independent

judgement given the situation in the State. The victims got a feeling

that the SIT was compromised in the matter and there was an

urgent need to bring the same to the notice of this Hon’ble Court.

Accordingly, the application came to be filed on 23.10.2009, after

we had a chance with victims and eye-witnesses to peruse the

charge sheets filed by the SIT in various cases. I moreover say

and submit that as has been clearly laid down in the 200 page

annexures to the CrMP 19816- 19819 dated 23.10.2009, I have

repeated in May 2008 itself approached the SIT with detailed and

reasoned applications for further investigations into each of the

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trials. The first such application/statement was made by me on

9.5.2008 and thereafter in Tabular Presentations (Trial Wise) as

specifically directed by Chairperson Dr R.K. Raghavan dated

29.5.2008 . I say and submit that all these have been faithfully

annexed to the Application and yet the fact that the government of

Gujarat has ignored these vital aspects and concentrated solely on

defaming witness testimonies and de-railing the correctional path of

justice belies their malicious motives.

I say and submit that it is irresponsible of the government of

Gujarat to make baseless allegations of the “timing of this

application.” I repeat that the government itself has chosen to wake

up six months after it was field on October 23, 2010. I also say and

submit that as we have stated both in our application and the

additional affidavit we had kept abreast of the SIT investigation and

did have an inkling that things were going wrong months after the

SIT was appointed. I say and submit that witness survivors did

bring to our notice certain issues about the manner in which 161

statements were being recorded, the hostile and aggressive

behaviour of the Investigating Officers who were all from Gujarat,

the coercive methods used including attempts at videography that

sometimes were forced upon witnesses and sometimes resisted by

witnesses. I crave leave to attach as Annexure A Colly a

translated copy of such a sample of letters from witnesses of

various cases right from May 2009 onwards. I say and submit that

right from the start Chairperson of the SIT was kept abreast of such

developments including by us directly. I crave leave to reproduce

these communications as and when it becomes necessary.

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I say and submit therefore that the insinuation in the affidavit of the

State that the timing of the application for the re-constitution of the

SIT is belated or motivated is completely false and baseless. I

further say and submit that petitioners were not given a copy of the

progress reports submitted by the SIT to this Hon’ble Court.

Therefore, the petitioners had no idea about the progress or work

done by the SIT till charge sheets were filed by the SIT in some of

the cases. When scrutiny of these charge sheets disclosed that the

SIT had not done a complete investigation and had omitted to

investigate the larger conspiracy and had not collected the

evidence against the responsible senior police officers and

influential political persons of the ruling establishment, the

petitioners still believed that the SIT will thereafter do the needful

under Section 173(8) of the Code, as was also directed in the order

dated May 01, 2009 passed by this Hon’ble Court. I say and

submit that it is pertinent to mention here that the order dated May

01, 2009 was passed solely on the basis of the progress reports

submitted by the SIT to this Hon’ble Court, and to which reports the

petitioners were not privy to and had no access to, and the

petitioners responses could not be brought to bear on the order

dated May 01, 2009 of this Hon’ble Court.

I further say and submit that our belief was violated by the

experience that followed. Months passed and nothing concrete by

way of completing the investigations, as material incompleteness

were apparent from the charge-sheets, was done by the SIT even

when the SIT was formally requested to complete the remaining

investigation.

For example, witnesses had made a written application to the

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competent court for ordering further investigation in the case of

Gulberg Society. The court had directed the SIT vide its order dated

September 07, 2009 to conduct further investigations under Section

173(8) of the Code on the material grounds set forth in the

application meriting such further investigation.

Similarly, an application was made by Dildar Umrav Saiyed & another

on June 17, 2009 in Naroda Patiya case to the Chairman, SIT for

conducting further investigations under Section 173(8) of the Code

on the counts mentioned in that application. When months passed

and the SIT did not take any concrete steps on the said application,

another application on same grounds was filed before the competent

Court for ordering the SIT to conduct further investigations under

Section 173(8) of the Code. The SIT strangely submitted before the

court that they were conducting investigations on the said points.

I say and submit that despite pointing out the defects, lacunae and

incompleteness in the charge-sheet filed by the SIT, the SIT has

been dragging its feet raising serious doubts about its credibility

given the responsible task assigned to it by this Hon’ble Court.

11. I say and submit that the irresponsible use of terms like “undisclosed

ulterior object” “vested interests” etc against me personally and the

organization that I represent is nothing short of a) intimidation of a

human rights defender assisting victim survivors and eyewitnesses in

the pursuit of justice especially dangerous and ominous when the

intimidation comes from a powerful state backed by money and

power; b) a crude attempt at slander and defamation; c) an effort to

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raise public sentiments and hatred towards a struggle for justice and

reparation.

12. I moreover say and submit that there is nothing substantive or

relevant in the affidavit that any way alters the situation and is in fact

an attempt to browbeat the highest court in the land. I further say and

submit that it is also curious why such an affidavit has been filed at

this stage of these proceedings when our application has been filed

in October 2009 and considered by this Hon’ble Court since

December 2009.

13. I say and submit that the contentions made in paragraphs 3, 5, 12,

22, 33, 34, 38 and 39 are all malicious and misleading and

completely unsubstantiated. I say and submit that it is irresponsible

and unaccountable for a state to make loose allegations such as the

ones made without substantiating them with material facts. I say and

submit that untruth and slander seem to be the only method and

means used by the state of Gujarat as they have repeatedly resorted

to these practices and continue to resort to such tactics to this day.

14. I say and submit that the contentions made in paragraph 3 of the

affidavit are irrelevant to the matters under consideration of this

Hon'ble Court. I further say and submit that the fact that for the first

time in the history of the country, mass crimes of such magnitude are

being closely investigated and prosecuted is a victory for the rule of

law and democracy in this country. I say and submit that allusions to

“political ramifications” etc is a deliberate attempt of the State to

obfuscate from the fact of the matter at hand which is to interrogate

fairly and in a non biased manner the wealth of documentary

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evidence available but which has been intentionally ignored by the

SIT in this case. I further say and submit that it is surprising that a

state government that should be concerned about exemplary and

transparent investigation has not a word to say about the serious

issues of the failure of the SIT to investigate

a) Records of the Police Control Rooms of Gandhinagar and the

Ahmedabad City Police Control Room

b) Station Diaries and Other Contemporaneous and relevant r

records of various concerned police stations;

c) Collection and Analysis of Phone Call Records of Powerful

Politicians, Senior Administrators, Policemen and Accused

15. I further say and submit that this silence of the government of

Gujarat in its affidavit before this Hon’ble Court coincides with the

silence by the SIT to investigate these aspects that were first

brought to inexplicable silence of SIT to the issues bought up in

our application dated 23.10.2010. I say and submit that this

reluctance to get to the root of the matter includes most significantly

a) disappearance of the phone call records of both

brutally slain former Parliamentarian Shri Ahsan Jafri and

b) disappearance of the records of the mobile phone of

the Chief Minister of Gujarat.

I say and submit that free and fair investigation ought to mean that

the SIT gets to the root of laid down rules & regulations,

procedures, etc. for preservation of such documents, in violation of

which such a key document was destroyed. The SIT was required

to investigate whether such documents were destroyed at all or is

being deliberately concealed, and if destroyed, under whose orders

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the destruction of these documents took place. I say and submit

that these matters have been under the scrutiny of the Hon’ble

Supreme Court since 2002 itself and if during this period such

destruction was ordered, it speaks of high level of mala fide

intentions and collusion of guilty minds in protecting vital pieces of

documentary evidence that could substantiate charges of criminal

conspiracy in mass murder. I say and submit that despite the

difficulties in the Sessions trial in the Gulberg case, where the

prosecutor was forced to resign, eye witnesses and survivors have

deposed stating that among the last of several dozen desperate

calls made by Shri Ahsan Jafri was a call made to the Chief

Minister. I say and submit that witnesses have stated that vile

abuse instead of reassurances greeted the aged, former

Parliamentarian when he called the Chief Minister after which he

gave himself up to be killed. This refusal to scrutinize documentary

records thoroughly, professionally and with probity by the SIT has

to be viewed in the context of the fact that an analysis of the phone

call records reveal startling facts about not just who was in touch

with whom but also about location details of powerful politicians,

accused and policemen at the scenes of the carnages the day

before the occurred that is the date of the Godhra tragedy, 27th

February 2002. II further say and submit that copies of the police

control room records and fire brigade registers further complete the

somber picture and I crave leave to present these analyses as

Annexure B Colly. I say and submit that there is no desire on our

part to overreach the scope of this affidavit in rejoinder, but simply

illustrate, in the interests of public justice, the vast and dangerous

extents to which the SIT appears to have gone, unduly influenced

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by officers of the Gujarat government in thwarting the course of

justice.

16. The superficial manner in which the SIT has conducted itself is

stated in detail in the body of the application and the additional

affidavit filed by me. I crave leave to refer to and rely upon the

same at the time of hearing of this application. I say and simply

that I would like to make just two points here, one related to

attempts by the government of Gujarat to influence the functioning

of the SIT from the outset by trying to ensure that Investigating

Officers with a tainted and malicious record as far as witnesses and

human rights activists were concerned were re-inducted in a fresh

process. I say and submit that this was arrested after we had

written to the SIT pointing out that certain officers who were alleged

to have been accused of faulty investigations should not find their

way back into the SIT. I crave leave to rely on our correspondence

with the SIT as and when called upon to do so.

I humbly state that there is an entire nexus of criminally inclined

officers working at the behest of the state government in Gujarat is

a serious one and we had soon after the appointment of SIT on

26.3.2008 apprised Dr Raghavan of the fact that many of the earlier

officers of the Gujarat police, who’s investigations were found to be

wanting and unreliable, revealing an unholy nexus between

policeman-accused-politician were being sought to be brought in

through the backdoor by officers of the Gujarat police who are part

of the SIT. I say and submit that we continue to find after a careful

perusal of the charge sheets in the eight trials and the Magistrate

Tamang’s report in the Ishrat Jahan extra judicial killing case, that

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the very officers indicted by Magistrate Tamang have been part of

the SIT Team in the Gulberg Massacre case and the Naroda

Patiya Massacre cases, two of the worst mass killings post Godhra

in 2002. I say and submit that it is curious that those very officers of

the Crime Branch, Ahmedabad city (working under Joint

Commissioner of Police, Crime, Shri Ashish Bhatia who is currently

part of the SIT) who had been severely indicted for criminal

behaviour are chosen by senior members of the SIT to assist them

in these cases. I crave leave to annexe a table with the names of

these officers as Annexure C.

I humbly state that the averments made in this paragraph are not

irrelevant as it may be observed that repeatedly, the state

apparatus of the state of Gujarat has come up for indictment before

this Hon’ble Court more especially where the unconstitutional

conduct of the police machinery is concerned. I say and submit that

continued criminal misbehaviour of policemen, guided and directed

by the state executive is likely to pose a serious impediment to the

deliverance of justice unless the newly constituted SIT is kept

sufficiently insulated and monitored by this Hon’ble Court.

17. I say and submit that as far as averments in paragraph 4 of the

affidavit are concerned, the SIT is today dependent on the

investigation by the local Gujarat police officers. The details of the

investigations illustrate how the police have tried to safe guard the

interest of the influential accused.

For example, in the Gulberg Society Case, one Manish Splender

was named by The witness in his affidavits as well as in the police

statement before the SIT but his further statement, though not

recorded, was shown to have been recorded by the SIT. Witnesses

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denied recording these 161 statements during testimonies in Court.

However the SIT has, on a flimsy ground has exonerated Manish

Splender who is also the son of the municipal corporator of the

state’s ruling party. The witnesses have stood by the truth in their

evidence before the court. (Imtiyaz Khan Pathan, PW No. 106, Exh:

542) had named this accused in both his affidavit dated November

18, 2002 as well as in the statement under section 161 recorded

by the SIT on May 22, 2008. A further statement shown to have

been recorded by the SIT dated September 14, 2008 has been

denied by this witness in his testimony in court). Therefore

application u/s 319 had to be filed (first in the trial court and now in

pending in the High Court)

Application u/s 319 have also been filed in the Odh and Deepda

Darwaja trials by the witnesses. Ironically these applications have

all been filed not by the State of Gujarat nor by the SIT. The

applications for further investigation also have been filed by

witnesses and victims in the Odh trial, the Sardarpura trial, the

Gulberg trial and the Naroda Patiya trials. I say and submit that

what is worse is that the said applications were strongly opposed

by the state of Gujarat. Hence the contentions made herein that the

state is committed to the deliverance of justice are not borne out by

facts.

18. I say and submit that as far as the averments in paragraph 4 (iv)

are concerned it needs to be clarified that when the Hon'ble

Supreme Court had first passed the order authorising SIT to

continue till trial etc, the facts regarding the complete involvement

of some of the officers had not come to light or not brought to the

notice of this Hon’ble Court. I say and submit that I, being a

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responsible human rights activist did not find it proper to request for

re-constitution of the SIT at that stage as I had no personal bias

against any officer. Following a perusal of the charge sheets in the

cases, and our accessing of documentary evidence related to

telephone records, fire brigade registers, and control room records

and analyzing the same we found the extent and depth of

subversion indulged in by all three officers from Gujarat included in

the SIT. I humbly say that at the time of the appointment of the SIT

on March 25-26,2008, it is not insignificant that the Gujarat

government had come up with the list of these three officers, that

the Amicus Curiae had agreed to the same and that we had, at the

time itself placed our strong objections to the same on the records

of this Hon’ble Court.

I say and submit that, referring to the CrMP 19816-19818 that is

presently under consideration of this Hon’ble Court , some serious

facts were brought to the attention on the background and conduct

of the three officers from Gujarat. I say and submit that it is curious

that a state government that ought to have has simply not dealt with

these detailed iand responsibly stated issues but in turn resorted to

malicious, vague and unsubstantiated propaganda. I say and

submit that the issues raised are

i. Smt. Geetha Johri

a. This Hon’ble Court has seriously indicted her work

and conduct in the investigation of the case of

Sohrabuddin’s fake encounter ( Rubabuddin Shaikh

v/s State of Gujarat reported in JT 2010 (1) SC 99.

Her review petition for expunging the strictures

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against her in the said judgement has also been

rejected.

b. Her husband, Shri Anil Johri, an IFS officer, is facing a

departmental proceeding in case of corruption, which

was investigated by the CBI. The Charge Sheet was

served on him in January, 2004. The State

Government has clearly a handle on her to compel

her to toe its line.

c. She has already weaned some favour from the State

Government by getting the Departmental Charge

Sheet against her husband diluted in October, 2008

by diminishing the evidence cited against him.

Pertinently, no new facts had come to the notice of

the Government at that juncture. It was also five years

after the first Charge Sheet was issued.

d. She has also been rewarded with an executive

posting as Commissioner of Police, Rajkot City after

she botched up the investigation of Sohrabuddin fake

encounter case.

e. She was the supervisory officer of the Deepda

Darwaza Case of Visnagar, District Mehsana. In this

case former BJP MLA from Visnagar, Shri Prahlad

Gosa and a member of the Taluka Panchayat,

Dahyabhai Patel were arraigned as accused persons

by the trial court on the basis of statements made by

witnesses and on an application filed by witnesses not

the SIT or the prosecution. 11 people had been killed

in this incident. The 161 statements recorded by the

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SIT have been exposed by the testimonies of

witnesses before the Trial Court.

ii. Shri Shivanand Jha

a. He was posted as the Additional Commissioner,

Sector – I, Ahmedabad City during the riots of 2002.

He had not moved out of his office till about 11.00

a.m. despite reported large scale violence within his

jurisdiction. Proof of this is found from the CDR

analysis of the CD submitted by Mr. Rahul Sharma to

the Nanavati – Shah Commission, which has also

been submitted to the SIT. By not taking prompt

action, he permitted the riots to grow in their intensity.

Widespread rioting, looting and arson took place in

his jurisdiction. The deaths were, however, less in

number because of geographical and demographic

factors. No preventive actions were taken by him

during the previous night. Therefore, he is as much a

party to the riots and ironically, his name was

proposed by the State Government for inclusion in the

SIT.

b. He is considered very close to Shri PC Pande and

key to exploring the complicity of the chain of

command responsibility in the violence. Shri PC

Pande stands seriously indicted for the failure to

control the violence in Ahmedabad city, the delayed

imposition of curfew, the participation in illegal acts at

the best of the state government issues in un-minuted

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meetings on the evening of February 27, 2002 and

early morning of February 28, 2002.. Under the

circumstance, he could not be seriously expected to

interrogate Shri PC Pande and investigate his role,

which are borne by the subsequent acts of omission

of the SIT.

c. When he was posted to Rajkot in 2002, he managed

to stay in Ahmedabad, where his family was, almost

all through his tenure of more than a year with the

blessings of Shri PC Pande.

d. He continued as a favoured officer of Shri PC Pande

and during the tenure of DGP Shri Pande. He has

held the most influential postings (e.g. Home

Secretary, IG of Police, Surat Range). He continued

as the head of the Surat Range even after his

promotion to the rank of Additional DGP, which has

never been heard of. He is presently posted as

Commissioner of Police, Surat City. This

demonstrates that he has been consistently close to

and is a trusted person of the political executive.

e. As per his own admissions, in confidence, before

some of his colleagues, he claims that he had been

directed not to move out of his office and let the riots

fester by Shri PC Pande. It is only natural that the SIT

chose to ignore the role Shri PC Pande in the

communal violence in Ahmedabad City given Shri

Jha’s role in the SIT.

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f. He had also brought the Police Control Room,

Ahmedabad City, under his charge with the

permission of Shri PC Pande. Therefore, for this

reason the SIT omitted to investigate as to why

politicians were sitting in the Ahmedabad City Police

Control Room and whether they had had any role to

play in the major massacres.

g. He was the Secretary in Home Department of the

Government of Gujarat for nearly three years when

the matter was pending before this Hon’ble Court

when he consistently took the position and was a

party to the affidavits on behalf of the State that the

investigations of these cases should not be handed

over to the CBI or transferred out of the State.

Although it can be argued on his behalf that he was

voicing the position of his Government, it cannot be

denied that in him the Government had found a

trustworthy and reliable instrument for its unethical

and crafty manoeuvres.

h. He is the person who personally cleared all the

affidavits that had been filed by police officers, who

had been employed in Ahmedabad City at the

relevant time, before the Nanavati-Shah Commission

enquiring into the Gujarat riots. Many of these

affidavits contain false declarations and had his

conscious approval.

i. As the supervisor of the case regarding the Sabarmati

Express carnage at Godhra, he has done precious

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little to add to or improve the questionable evidence

collated by the Gujarat police in the case. In the

Godhra Train Burning Case, the SIT has fully

endorsed the conspiracy theory floated by the Gujarat

Police investigation team and has not probed into the

revelations in the Tehelka Magazine organized

‘Operation Kalank’, in which the witnesses admitted

that they were bribed by the Gujarat police to speak in

favour of conspiracy theory of Gujarat police. Besides,

he has not analysed the CDRs of the concerned

accused persons. It is pertinent to mention here that

even the POTA Review Committee has opined that

there is no conspiracy involved in the Godhra Train

Burning Case. However, the SIT maintains the

conspiracy theory, and the accused persons bail

applications have been opposed by the SIT, inter alia,

on that ground, and the accused persons are in jail

since 2002 – 03.

With this background, it is doubtful if he would be capable of, or

could be entrusted with investigating the conspiratorial

involvement of the same political executive and other senior

police officers during the riots.

Moreover, Mr. Shivanand Jha is one of the accused persons

named in the complaint of Smt. Jafri which has been ordered by

this Hon’ble Court to be enquired into by the SIT and to be dealt

with as per law. This conflict of interest has seriously impacted

on the transparency and accountability of the SIT.

21

The above-named two members of the SIT, viz. Smt. Geetha

Johri and Shri Shivanand Jha, were ordered on 6th April, 2010

by this Hon’ble Court to disassociate themselves from the SIT

till further orders.

iii. shish Bhatia

a. He has been heading the Crime Branch, Ahmedabad

City for the past three years before the SIT was

constituted by the Supreme Court in March, 2008.

The Crime Branch of Ahmedabad City is a prized

post, and is given to officers close to the Government.

b. As Joint CP, Crime Branch, he was supervising the

investigations of the major cases of massacres in

Ahmedabad City (e.g. Naroda Patiya, Gulberg

Society, Narodagam Cases) and did nothing for three

years despite evidence already having come on

record regarding the involvement of political

personalities in the crimes. No effort was also made

to collect fresh evidence & to uncover the truth before

the SIT was appointed.

c. The gross lapses and failures in the Ahmedabad city

based carnages have been detailed in CrMP 19816-

19819 and further detailed in the Additional Affidavit

filed by me on December 1, 2009. These illustrate his

actions in protecting powerful accused, especially

given the superficial analysis of the call data

contained in the CD submitted by Shri Rahul Sharma,

22

and gave a clean chit to the senior police officers like

Shri PC Pande and Shri MK Tandon in the cases

supervised by him.

d. The supervision of Naroda Patiya and Naroda Gam

cases have been assigned to him. In the investigation

of these cases, serious lapses are there. Details

thereof are hereafter contained in paragraph 23. I say

and submit that we are perturbed especially by blatant

efforts of the Gujarat Police Ahmedabad Police to

conceal Station Diary Entries and Police Control

Room Records. I say and submit that advocates for

the witnesses have now accessed these after 173(8)

applications have been filed by the witnesses in all

these cases. I further say and submit that in both

Naroda Patiya and Naroda Gaam cases, handled by

Shri Bhatia, Trial Court Judges have refused legal

representation to victims and witnesses which is their

right under Section 24(8)(2) of the Code of Criminal

Procedure and is moreover a gross denial of basic

legal rights in crimes of this magnitude. The SIT has

not found this at all objectionable and has not

supported repeated applications to correct this denial

made in the Courts (Trial Court and High Court).

e. Shri RK Shah Special Public Prosecutor for the

Gulberg Society Case has made serious allegations

against Shri Bhatia regarding undue interference and

lack of support to the prosecution in conducting the

trial of the case. I say and submit that what is really

23

disturbing from this account of Shri Bhatia’s

pressurizing the special public prosecutor to

pressurize witnesses to succumb to their 161

statements recorded before the SIT (about which they

had complained to Dr Raghavan immediately after the

misdemeanours) rather than rely on testimonies

before the Court.

I say and submit that in view of the background of the members of

the Gujarat cadre IPS officers in the SIT, it is humbly submitted that

if the SIT is not reconstituted and further investigation not

undertaken, gross injustice will also be done in these cases.

19. I further say and submit, in response to paragraph 5 (i) of the

government of Gujarat’s affidavit that when the SIT was first re

constituted after deliberations, we were open to its formation. It was

only when the investigation was found to have been done in a

lackluster and biased manner and this was after the trials had

started, that the evidence on record confirmed that the SIT had

been seriously misled by these officers and failed to look into key

aspects that had been brought before it at the outset. I also say and

submit in specific response to paragraph 5(iii) that the SIT is heavily

dependent on the local Gujarat police officers who it appears, have

tried to record second sets of 161 statements to weaken the

prosecution case. However, when witnesses deposed before the

Courts these facts were revealed and there is no discrepancy in

their testimonies.

24

I say and submit that the valiant effort of the witnesses to get justice

reveals a faith in this Hon’ble Court as they have deposed, under

severe duress from a hostile state before the Trial Courts.

Moreover, the statements have been recorded by the SIT in

apparent and clear violation of the law under the provisions of

section 162 Code of Criminal Procedure.

I say this because efforts have been made to pin a witness

testimony to whatever the police (in this case SIT) has written in the

police statement.

20. I say and submit that we are disturbed to understand that Dr RK

Raghavan appears to be going beyond this Hon’ble Court when he

has asked this Hon’ble Court to reconsider its decision to remove

Shri Shivanand Jha and Smt Geeta Johri from the Special

Investigation Team (Office Report dated April 17, 2010). It is

difficult to understand the anxiety of the Chairperson to retain

persons with questionable integrity in a team that is expected to be

blemish free, above board and perform its functions totally un-

influenced by any section.

21. I say and submit that the averments made in paragraph 5(iv) of the

Gujarat Government’s affidavit are misleading. There is no doubt

that the order was passed on May 1, 2009 by the Hon Supreme

Court but the Hon’ble SC felt it proper to keep the matter pending

and directed the SIT to submit the report periodically. Thus, there

was a well thought out purpose or object behind doing so. The only

object could be to see that the trials are monitored and any injustice

could be brought to the notice of this Hon’ble Court. I further

strongly refute the allegations made in Paragraph 5(v) and assert

that the august forum of this Hon’ble Court is not being used by any

25

political party. Both I and the CJP are non-political dedicated to the

rule of law and human rights protection. Moreover, these kind of

bald faced falsehoods and accusations are likely to be made by any

aggrieved party before this Hon’ble Court.

22. I further say and submit vis a vis Paragraph 8 of the Gujarat

government’s affidavit is concerned, it is clear knowledge that

illegal and unconstitutional instructions were given by the chief

minister on February 27, 2002 at a late night meeting, that the

meeting was not recorded (no minutes were recorded) and the

carnage that followed was a direct response to that. This averment

made here by the State is absolutely false and amounts to perjury

as the Hon’ble Supreme Court is sought to be misled while an

investigation is on. No details have been mentioned by the State as

to when, where and how, on the next day, i.e. February 28, 2002

the chief minister had requested the then union Defence Minister

and the Home Minister to deploy the army. Surprisingly neither any

fax nor any email is referred to. In fact there is clear evidence at

hand to show that for 3 days army was not called as the chief

minister had already instructed the local police to go ‘soft’ on the

accused who were allowed to go on the rampage during first an

Ahmedabad Bandh (supported by the ruling party) and then a

Gujarat Bandh (also supported by the ruling party in the state).

I say and submit that it is well established from the analysis of the

documentary records available and oral testimonies of serving and

retired officers that the chief minister also held a second meeting on

the morning of February 28, 2002 at Gandhinagar where illegal

instructions were allegedly repeated, that at least some of the

powerful accused who have already been arraigned as accused

26

attended it, and that another meeting was held on the afternoon of

that day at the Shahibaug Circuit House Annexe after the worst

damage at Gulberg Society and Naroda Patiya had already been

completed. I also say and submit that analysis of documentary

evidence also shows that the army was actually deployed in

Ahmedabad on March 4, 2002 and to make matters worse dumper

vehicles of the municipal corporation were offered as transport to

belittle this effort. (Annexure B Colly)

23. I specifically say and submit that averments made in paragraphs

12 -21 of the affidavit in reply of the state of Gujarat tries to mislead

this Hon’ble Court about the background of the present set of

petitions. The very history of this litigation as the historic and

unprecedented steps taken by this Hon’ble court during its

pendency reveal, that some if not substantial truth was found in the

allegations against deliberate subversion of the criminal justice

system through various means, The attempt has been to protect

the powerful accused and defeat the process of the criminal justice

system. In fact I say and submit that the affidavit filed by me on

October 17, 2003 in the SLP (Crl) No. 3770/2003 actually drew

attention to the vast extent of the subversion in the appointment of

officers of the court.

24. I say and submit that in Para 14 the government of Gujarat refers to

the affidavit filed by J. R. Rajput, Dy. Secretary, Home Department

before this Hon"ble Court. The said averments made in that

affidavit have proved to be absolutely false as the investigation by

the SIT and the evidence laid before the court reveal. I say and

submit that the affidavit on behalf of the state of Gujarat then and

27

now are attempts to give a distorted picture about the subversion of

justice in Gujarat. I further state that in Paragraph 16 of the state’s

affidavit, an annexure R/L is the order of SC dated August 17,

2004. After considering the facts the Hon'ble Supreme Court

allowed the NGOs to participate in the process of giving details to

The Range Police Officers etc. for the reopening of 2,000 cases. I

say and submit that the State of Gujarat has failed to show any

change in its attitude towards the rights of victims and their need for

justice. I say with responsibility that absolutely false statement has

been made on oath by the deponent that the above dated order of

this Hon’ble Court has been abided in both letter and spirit. This

may not be the appropriate stage to go into length the extent to

which the State has gone to ensure that justice is not done in the

2000 reopened cases. I crave leave to especially rely on details of

one case, in which two separate FIRs were registered as CR No. I

38/2002 and 41/2002 and thereafter, due to the tenacity of a victim

witness Sagir Ahmed Gudala the trial proceeded as Sessions Case

No. 6/06, 7/06 and 100/07 before the Ld. Addl. Sessions Judge,

Dahod wherein at least three eye witnesses named accused from

among the mob. They then filed an application u/s 319 Code of

Criminal Procedure to arraign them as accused but the application

was dismissed on December 18, 2009. It was alleged that

complainant PSI. Parmar (in the original FIR) and one Mamlatdar

Bhabhor were the accused. Despite the orders of this Hon’ble Court

an officer assigned to investigate this case is under a cloud for

some other, unrelated allegations and therefore reportedly fearful of

punitive action by the State government. The criminal revision

application no. 65 of 2010 filed by the victim in Gujarat High Court

28

is still pending along with the writ petition being Special Criminal

Application No. 71/2006.

The above facts reveal as to how the state government has been

utterly and completely subverting the letter and spirit of the Order of

this Hon’ble SC dated August 17, 2004. This is just one such

example of subversion of the process of justice under the current

dispensation in the state and there are many more.

25. I say and submit that averment in paragraph 22 of the Gujarat

Government’s affidavit is misleading since the arrest, absconding,

seeking of anticipatory bail and finally granting of bail to Smt Maya

Kodnani, then minister for women and child welfare was mired in

controversy. It is the belief of the Petitioner and the victims that

Dr.Kodnani was given privileges while being arraigned as an

accused which facilitated her absconding, subsequent grant of

anticipatory bail and her regular bail. I say and submit that even as

accused she continues to go on official tours with stat government

ministers and was recently allowed to do so by the Trial Judge by

an order dated 30.3.2010.

Specifically, the following facts about the way the Naroda Patiya

and Naroda Gaam cases have been investigated with reference to

the arrest of Smt Mayaben Kodnani are of interest:

a. In the Narado Patiya massacre case though evidence

was available from October, 2008 against the State

Minister Mayaben Kodnani, she was not shown as

accused in the first charge-sheet filed by the SIT in

December, 2008. She was arrested later due to Media

propaganda in March, 2009.

29

b. Mayaben Kodnani went absconding for a number of days

when she learnt that she was to be arrested. The SIT

facilitated it by almost announcing the same by issuing

her a summons. As a minister, she had PSOs and

security guards detailed with her, yet she went missing!

Unless these security guards deliberately allowed

Mayaben to go alone and hide wherever she pleased, it

couldn’t have happened. That this had an official nod

from the Government is apparent because no enquiry

against these security personnel has been initiated. That

this official nod of the State Government met with no

disapproval of SIT, these officials have not been

questioned or l investigated for facilitating the evasion of

arrest by the accused. Mayaben later appeared before

the SIT armed with an anticipatory bail..

c. After allowing Mayabe Kodnani to abscond, the SIT tried

to create an impression that it meant business by

challenging the anticipatory bail order in the Hon’ble High

Court of Gujarat. Not surprisingly, the Hon’ble Court

asked uncomfortable questions to the SIT on their failure

to arrest Mayaben Kodnani in the first place.

After the SIT arrested Mayaben Kodnani and Jaydeep

Patel, their interrogation was unproductive and treated as

a mere formality that had to be gone through. No

scientific methods to probe the minds of the accused

were undergone. The accused persons were not

subjected to the any tough questioning and there was

nothing in the interrogation to suggest that there was a

purposeful intent to unearth the larger conspiracy. There

30

are serious loopholes in the investigations as can be

seen from a perusal of the chargesheet. No questions or

investigations on the clear signs of conspiracy as they

emerge from an analysis of the documentary evidence

are made in the Naroda Patiya, Naroda Gaam and

Gulberg chargesheets.

26. I say and submit that the baseless allegations made by the

government of Gujarat in paragraph 22 of the affidavit saying that I

represent “undisclosed ulterior vested/political interests” are

motivated and malicious. The false statement that allegations made

by us on the miscarriage of justice were found to be

unsubstantiated by the SIT is also baseless. The statement by the

government of Gujarat that over as many as 200 eyewitnesses and

victim survivors are tutored by me is completely baseless. Neither

me nor any of the Petitioners that have filed petitions with me have

any ulterior motive. We are concerned about the miscarriage of

justice and hence are supporting the victims despite very

adversarial conditions on the State of Gujarat at the risk of threat to

person. I have been given armed protection by this Hon’ble Court.

It is rather strange that there is no mention or reference to the huge

tragedies and loss suffered by the victims in some cases one family

has lost as many as 19 members; young boys have watched their

sisters and mothers subjected to brute gender violence. I would

specifically like to draw attention to paragraph 22 of the government

of Gujarat’s affidavit where the state government has been

repeatedly referring to videography. It is the duty of the respondent

to explain as to how the respondent government of Gujarat has

31

gathered knowledge of the manner and method the SIT has carried

out its investigation, especially when the SIT does not talk of this

faulty manner of its investigation. It is curious how the state of

Gujarat gathered the impression. If at all the statements have been

videographed this could attract section 162 of the CrPC. I say and

submit that there appears to be a coercive design behind the

contentions of the government of Gujarat and the fact that the three

senior officers belong to the Gujarat cadre is a matter for both

concern and consideration of this Hon’ble Court. I say and submit

that in this connection I would like to make a special averment on

witness protection also referred to in great detail in paragraph 42 of

this Hon’ble Court’s order dated May 1, 2009. I further say and

submit that apart from the separate petition filed a witness in

another case before this Hon’ble Court, some of the witnesses

apparently deliberately not examined by the SIT in the Odh case

were allegedly threatened and beaten by one DYSP Pathak serving

under the SIT and complaints in this regard made to Chairperson

SIT and also an affidavit tendered in this regard. I crave leave to

rely on this and other related incidents at the time of the final

hearing of this application.

27. I say and submit that the averments made in paragraph 24 of the

said affidavit is nothing short of an effort to undermine the

corrective measures sought to be put in place by this Hon’ble

Court.

28. I say and submit that the averment in paragraph 26 that any order

passed for the re-constitution of the SIT would “run contrary” or

32

“amount to a review” of its own order by this Hon’ble Court is a

limited and faulty understanding of the critical issues at hand.

29. I say and submit that it is both clear and well-established law that in

an appropriate case when the court feels that the investigation by

the police authorities is not headed in the proper direction, or when

senior police officials are involved in the said crime, it was and is

always open to the court to hand over the investigation to an

independent agency like the CBI. It cannot be said that after the

charge sheet is submitted, the court is not empowered, in an

appropriate case, to hand over the investigation to an independent

agency like the CBI. I crave leave to refer to and rely upon various

judgements of this Hon’ble Court at the time of hearing of the

application.

30. I say that the contentions contained in paragraph 31 of the affidavit

are misleading. I submit that the very reason for this Hon’ble Court

to continue to monitor the process of investigation and trial was

because of the involvement of powerful accused and allegations of

subversions by them.

31. I further say and submit that the averments made in paragraph 31

(b), (c), (d) and then again in paragraph 37 where the government

of Gujarat has tried to justify the critical issue of appointment of

special PPs with unimpeachable reputation and similarly judicial

officers of high integrity and competence, there seems to be a

deliberate efforts to selectively place on record a letter written by

the Legal Department of the state to Chairperson Dr RK Raghavan

on the appointment of Shri RK Shah dated June 9, 2009 (Annexure

33

R/A-( page 622 Volume II of the Government of Gujarat’s Affidavit).

I say and submit that they have deliberately not placed on record

any explanation given by him if any. I also say and submit that a)

Shri Shah was also the special PP who prosecuted the Bilkees

Bano case in Mumbai and b) that we had raised objections to the

appointment of the other PPs chosen by the SIT and the state

(mentioned in our criminal application 19816/2009). I would also

like to take strong exception to paragraph 32 of the government of

Gujarat’s affidavit where they have taken exception to our

submitting specific names of officers to replace those in case the

re-constitution of the SIT.

32. I submit that the contention of the State in paragraph 32 that seeks

to interpret the order of this Hon’ble Court dated May 1, 2009 as a

final order as far as further investigation is concerned is untenable.

In fact in paragraphs 42 and 46 (xiv) of the May 1, 2009 this Hon

Court held that further investigation was very much probable. In

paragraph 46 (xiv) it has been specifically stated that,

“The SIT would continue to function and carry out any

investigations that are yet to be completed, or any further

investigation that may arise in the course of the trials. The

SIT would also discharge such functions as have been cast

upon them by the present order.”

It is clear therefore that just like in the case of any criminal trial

under the Code of Criminal Procedure, continued further

investigations were envisaged in these trials by this Hon’ble Court.

I say and submit that the SIT is still to review key documentary

evidence including:

a) Police Control Room Registers

34

b) Case Diary and Station Diary Notings

c) Phone Call Records for Analysis and Conclusions

d) Investigations into destruction of bodies, post mortem

reports and doctoring of evidence

I would further like to say and submit that while the order of this

Hon Court on further inquiry inquiry/investigation is clear, though

witnesses filed an application before the SIT in November 2009 in

the ongoing trial in Mehsana being Sessions Case No. 275/2002 &

allied cases, known as Sardarpura Case for further investigation,

the SIT preferred not to respond and therefore an application for

further investigation was filed by the complainant before the

Hon’ble Sessions Court, Mehsana being Exh: 525 before the Trial

Court which was rejected on 27.01.2010 against which the

complainant Ibrahim Rasul has approached the Hon’ble Gujarat

High Court. (The said application being Misc. Cri. Application No.

3729 is pending.)

I say and submit that as in other crucial cases this failure to

interrogate evidence arises out of a refusal to probe

a) Arms and trishul distribution and provocative speeches

made in the Mehsana district by prominent political leaders

before the Godhra incident on 27.2.2002. Evidence was

available to the SIT through the statements of witnesses

recorded by them and also Tehelka’s Operation Kalank as

also now evidence before the Court.

Similarly in the offence being Sessions Case No. 44/2008 pending

in the court of Ld. Addl. Sessions Court, Anand for the offences u/s

302 etc of the Indian Penal Code arising out of the offence being

CR No. I 27 of 2002 registered with Khambholaj Police Station,

Anand (the Odh trials) the SIT had not recorded statements of the

35

crucial eye witnesses. In this case as many as 3 persons had been

killed. The SIT relies upon the police statements of the witnesses

recorded in the year 2002. The investigation by the Gujarat police

was found to be wanting leading to the appointment of the SIT. The

panchnama of the scene of the offence drawn in March, 2002

shows that the ashes and burnt remains of the deceased were

found from the house no. 839 belonging to Idrish Abdulbhai

whereas the police at that time wrongly recorded the statement of

Idrishbhai Abdulbhai deliberately manipulating evidence and

changing the entire scene of the offence by recording that the

deceased Ayeshaben and Noorieben rushed to the house of

Gafoorbhai in the adjoining house i.e, house no. 840 where both

were burnt alive ! In this case their own statements and

panchnamas have been denied to witnesses. Shockingly, the eye

witness Idris was never shown his previous police statement. It was

only when the first eye witness Idrish Vora was to be examined that

the special public prosecutor gave the copy of his statement

recorded in March, 2002 which accoding to the witness was falsely

recorded and the names of accused deliberately omitted.

Thereafter, the victim immediately informed his lawyer in the court

who spoke to the special prosecutor. The victim was assured by the

special public prosecutor that the evidence would not be recorded

and once examination in chief starts time would be sought to rectify

this lapse in investigation. Nothing of that sort happened and

therefore the lawyer on behalf of the victim Idrish Vora tendered an

application seeking further investigation u/s 173(8) of the Code of

Criminal Procedure. The examination of the witnesses was differed

and the application for further investigation being Exh: 211 was

heard and finally dismissed on December 21, 2009. I say and

36

submit that, against this order the witnesses filed a Criminal

Revision Application No. 2 of 2010 before the Hon’ble Gujarat High

Court, but the same was however dismissed on February 26, 2010.

This witness has approached this Hon’ble Court in appeal.

Witnesses have made allegations against SI officials for

intimidating and threatening them (24.3.2010). Moreover in the

affidavit filed in this matter witnesses have also alleged that a

senior level officer with the SIT was attempting to coerce witnesses

in deposing as per what they felt was faulty 161 statements during

the trial.

Similarly the lapses in Sessions Case No. 235/2009 pending in the

court of Ld. Addl. Sessions Judge, Ahmedabad known as Naroda

Patiya Case wherein it is officially acknowledged that atleast 58

persons were killed (though the actual figure if missing persons are

taken into account is 110), an application u/s 173 (8) of the Code of

Criminal Procedure, was filed by the witness for seeking to place on

record

a) panchnamas, videography of the site of offence.

The witness’ application prayed for directions that

(i) information regarding the movements of the

fire brigade on 28.02.2002 be placed on

record,

(ii) further investigation on the ‘Tehelka sting

operation’ as per the evidence of witness no.

592 (Ashish Khaitan be carried out), the

investigation of the mobile calls of different

authorities be investigated,

37

(iii) the photographs of the dead bodies etc be

investigated as the dead bodies were not

recognizable,

(iv) the statements of witness no. 18 namely

Basuddin, 409 namely Aminabanu, 228 etc be

further investigated.

Since the special public prosecutor was not effectively protecting

the cause of the prosecution, witnesses, the victims, in view of the

amendment of the Code of Criminal Procedure, Section 24(8), filed

an application for filing the vakalatnama of their advocate in the

crucial case of Naroda Patiya by filing an application being Exh:

480 in the Trial. The said application was opposed and the same

was dismissed on March 5, 2010. I say and submit that in two of

the most heinous cases of 2002, Naroda Patiya and Gaam

witnesses have been denied legal representation.

In the Deepda Darwaza case also it is witnesses, and not the SIT

not the state of Gujarat that have moved an application under

section 319 of the CrPC against two newly arrayed accused, one

Dayabhai Patel, municipal corporator, Mehsana and Prahladbhai

Gosa, then MLA Mehsana, an application which was upheld by the

Sessions Court Mehsana No 180/2002 (more than seven witnesses

had attributed specific roles to the accused) the accused

challenged the Sessions Court order by filing a Misc. Criminal

Application No. 1620/2010 and 1636/2010.

33. I say and submit that the averments in paragraph 31, wherein the

state is making an all out bid to state that investigations and

prosecutions of over 2,000 cases are being satisfactorily carried out

is belied by facts on the ground. I say and submit that at the

38

appropriate stage this Hon’ble Court may deem it fit to summon

applications pertaining to the 2002 Gujarat violence still pending in

the Gujarat Courts be called for. I say and submit that these may

well show the loopholes in investigation as well as efforts to subvert

the process of justice to the victims.

I say and submit that the averment in paragraph 31 of the

government of Gujarat’s affidavit where it laments the directions of

this Hon’ble Court giving power of the appointment of the Sessions

Judges for these sensitive cases solely to the Hon’ble Chief Justice

of the Gujarat High Court without consulting the state government

is itself indicative of the mindset of the respondent government.

34. I further say and submit that paragraphs 33-35 in the state of

Gujarat’s affidavit are nothing short of a malicious attempt by a

state to intimidate and malign me, the organization I represent

(Citizens for Justice and Peace) and our advocate Shri MM Tirmizi.

35. I say and submit that there has been a brazen and malicious desire

by the state of Gujarat, to obstruct the process of justice in all these

cases, and in fact ably aid those men and women accused of

conspiracy and actual participation in mass rape and murder, by

not supporting the case of the prosecution in these trials and

actually obstructing it by constantly undermining the testimonies of

victim survivors and the gravity of the offences committed. I say

and submit that the allegations made against me, the organization

that I represent and our advocate, Shri MM Tirmizi are false,

malicious and made with a sinister idea to digress from the course

of justice, from the punishment of those guilty of heinous and mass

crimes.

39

36. I say and submit that, at various levels it therefore appears that

there are collaborative attempts between the state of Gujarat that is

meant to further the case of the prosecution and prosecute mass

crimes to, in fact discredit statements of the victim survivors, water

down the gravity of the offences and weaken the case of the

prosecution. It is crystal clear therefore that the fate of these

sensitive cases is not safe within the state of Gujarat and we urge

that the trials be transferred out of the state. I say and submit that it

is clear that the current functionaries of the government of Gujarat

are more inclined towards those accused of heinous crimes in the

state and offering them protection from punishment. I say and

submit that even presently the struggle for justice for victim

survivors is arduous. I say and submit that

a) the matter filed under section 319 has been listed as

many as eight times before the Gujarat High Court

following the Trial Court Order of January 18, 2010

(that accepted some of the witnesses contentions

while rejecting others) However, the same is not

heard for one or other reason

b) the Transfer Petition filed in the Gujarat High Court

has been listed seven times and yet have not been

heard or disposed of.

37. I say and submit that the averments made specifically in paragraph

33, though repeatedly throughout, in the respondent’s affidavit are

curious. The state government has, it appears, has reproduced the

sensitive portion of the report submitted to this Hon’ble Court by the

40

SIT. I say and submit that this practice of the state government,

when copies of this report are not made available to us are

prejudicial to us and against the basic principles of natural justice. I

also say and submit that in all the trials current afoot in the state of

Gujarat, accused have tried, one way or another to approach the

courts to try and get copies of the report and Courts have refused

the same. I say and submit that when both the state government,

who is now selectively leaking sections of the report and the

accused in many of these heinous cases are doing so simply to

pre-judge the issue, slander witnesses and victims and in fact

influence the Judges hearing the trial. I say and repeat that to use

untested 161 statements for such malicious propaganda, as was

also done within these Hon’ble court precincts last year is to

flagrantly thwart the due process of justice. I crave leave to place

the details of these criminal miscellaneous

applications/petitions/revisions and appeals made in the Sadarpura

case, the Deepda Darwaza case and others to claming a copy of

the SIT confidential report (due to the state of Gujarat’s slanderous

propaganda) at the time of the final hearing of the application.

I say and submit that the manner in which the respondent

government of Gujarat, who’s chief functionaries and elected

representatives have been accused of grave crimes, are today in a

blatantly partisan and prejudicial act, using a Confidential Report

(or portions of it) submitted to this Hon’ble Court, deviously and in

an underhand manner to prejudice the Trials on in Gujarat and help

the accused. I say and submit that the government of Gujarat first

tried to do this surreptitiously in May 2002 when the not ecirculated

by Smt Hemantika Wahi made unsubstantiated allegations against

41

myself and our advocate Shri MM Tirmizi. This was deplored by this

Hon’ble Court who strongly expressed its anguish at the

government of Gujarat’s brazen attempts and inquired the source of

the leak. Yet this did not stop the senior counsel, Shri Rohatgi from

giving repeated television interviews making the same baseless

allegations. Thereafter in several applications before the Trial

Courts and the Gujarat High Court, accused have misused this

selective leak by the government of Gujarat (the prosecuting

agency in the case!!!) to demand the report on grounds that the

allegations of tutoring could help their case!! For example, one

accused in the Sardarpura trial, Kantilal Patel approached the

Gujarat High Court through a Criminal Revision Application No. 705

of 2009 seeking production of the copy of the report filed by the

SIT. The High Court has reserved orders in this case. I say and

submit that the underhand way in which the government of Gujarat

is a) undermining its own prosecution in all these 9 sensitive cases

by deliberately and falsely undermining the credibility of the

witnesses and the values of their testimonies is a calculated and

well designed attempt to enable the prosecution cases to be

weakened and the accused who are all either office bearers,

elected representatives or close associates of the ruling party to

benefit and go scot free. I say and submit that these repeated

attempts are nothing short of an attempt to thwart justice and

influence the trials. I say and submit that now they have placed

these vile allegations on affidavit there are even greater chances

that if the trials continue as is, the contentions of this motivated,

defamatory and unsubstantiated affidavit will be used by the

accused and government, in collusion to ensure mass acquittals in

all these cases. I say and submit that the substance of the affidavit

42

is a clear pointer to the fact that the prosecuterix state has no

interest, superficial or genuine to see that justice is done in these

cases of blatant human rights violations. I say and submit that

therefore it is critical in the interests of due process and justice that

these remarks are removed from the records of this Hon’ble Court.

This questionable conduct by the government of Gujarat in

deliberately and selectively leaking sections of the report has

opened a Pandora’s Box and now even emboldened them enough

for the accused to, in collusion, even demand videography by the

SIT that has a clearly questionable evidentiary value in law

considering provisions of section 162 of the CrPC. Furthermore,

following a similar pattern, following the last date of hearing before

this Hon Court on April 6, 2010, one Bipin Patel who has been

arraigned as accused by the Special Investigation Team (SIT) in

the Gulberg Society Massacre Case (152/2002) has sought the

lifting of the stay on the trial in that case on grounds of delay

despite the fact that he was out on bail within three weeks of being

arrested by the SIT in February 2009. Worse still the facts revealed

in his application and the language used by him while making

allegations against witness statements submitted by them to the

SIT and also signed statements handed over by witnesses to the

Special Investigation Team is, uncannily similar to the language

being used by Gujarat state counsel, on record and orally before

this Hon’ble Court as also Kallubhai Maliwad another powerful

representative of the ruling dispensation in Gujarat. I say and

submit that it is clear that the accused are in Gujarat are privy to

information that is not available to us.

I further say and submit that so far, on 22.2.2010 one prosecution

witnesses, namely PW 283 Aslamkhan Anwarkhan Pathan

43

respectively has named this accused, Shri Patel in court and also

assigned him a role with a weapon in the mob that attacked

Gulberg society.

I say and submit therefore, that, at various levels it therefore

appears that there are collaborative attempts between the state of

Gujarat that is meant to further the case of the prosecution and

prosecute mass crimes to, in fact discredit statements of the victim

survivors, water down the gravity of the offences and weaken the

case of the prosecution. It is crystal clear therefore that the fate of

these sensitive cases is not safe within the state of Gujarat and we

urge that the trials be transferred out of the state.

38. I further say and submit that the averments made in paragraphs 33

and 39 of the state’s rejoinder wherein the respondent states that I,

Ms. Teesta Setalvad had asked the witnesses to tender the typed

statements is a malafide allegation that has been blatantly rebutted

(though aggressively put to them) by the witnesses in the court

during their evidence. It is very unfortunate that the Addl. Secretary

of the State of Gujarat filing this affidavit relies upon the police

statements of witnesses and places no value of the evidence given

before the Trial Court.

39. I specifically state and submit that the averments made in

paragraph 33 about allegedly tutoring of witnesses are untrue. To

the best of my knowledge, at no point in any testimony before the

court have witnesses said this. It is apparent that the government of

Gujarat is selectively making use of 161 statements recorded by

the SIT (in barely three four instances) to make baseless

allegations. I crave leave to refer to and rely upon the evidence of

the witnesses before the Court. We seek to attach as Annexure C

44

Colly a set of Tables that point out what witnesses have said in

their testimonies before the Trial Courts on the issue of the

affidavits affirmed by them both before the Police Commissioner,

Ahmedabad, the Trial Court and the Apex Court. We also attach as

Annexure D Colly detailed Charts showing the Continued Failure

of Fair Investigation in the Ongoing Trials by the SIT as also the

Status of the Cases in the Trial Courts.

40. I say and submit that as far as paragraph 34 of the respondent

affidavit is concerned, the state of Gujarat only relies upon the

police statements and the affidavits of the witnesses knowing fully

well that the statements before the police are inadmissible in law.

The tone of the affidavit strengthens the apprehension of

jeopardizing the trials if the cases are permitted to continue in

Gujarat. I say and submit that as the trials progress and the need

for exemplary and independent investigation becomes urgent and

necessary, the fact that a dispensation that was in power while the

carnage raged remains in power and in control of the criminal

justice system in the state, is more than likely to harm the

deliverance of justice in these cases.

41. I say and submit that I would specifically like to refute the baseless

allegations made in paragraph 34 of the government of Gujarat’s

affidavit where again, baseless allegations are made against me

that are unsubstantiated by the affidavits annexed at page 304 of

the Volume I. The government of Gujarat refers to two affidavits

one filed by Nanumiya Malek and the other by Madina Arif Malek

who had both filed affidavits before this Hon’ble Court in 2003. In

her affidavit the victim, Madina, herself does not speak of gender

45

violence (rape) whereas Nanumiya does. These are witnesses in

the case of the Naroda Gaam case. Neither of the two witnesses

have yet deposed before the Court. For the state of Gujarat to

selectively pull these out before their testimonies in court is clearly

an attempt to obfuscate the actual matter at hand. The affidavits

themselves state that they were affirmed by the victims and the

victims would be best placed to answer any discrepancies if they

arise especially in relation to the 161 statements recorded by the

SIT. I further say and submit that in December 2008, while

investigations were still on by the Special Investigation Team (SIT)

defence counsel appearing for the accused in the Naroda Gaam

case leaked some of the 161 statements contained in the charge

sheet (not yet filed by the SIT in the Trial Court at the time),

selectively to sections of the media (The Indian Express) after

which we had protested this selective leak to the SIT Chairperson

Dr RK Raghavan and also issued a press release. We attach as

Annexure D Colly a copy of our letter to the SIT Chairperson as

also the press release issued by the Citizens for Justice and Peace.

I say and submit that neither have either of the two witnesses,

deliberately quoted out of context in the media reports (through the

selective leakage of 161 statements) I.e. Madina Arif Malek

(Madina Rafik Pathan) nor Nanumiya Malek yet been examined in

the Trial Court and for the defence to leak out statements made to

the SIT to the media as far back as December 2008 is a conscious

and deliberate effort to thwart the due process of justice.

I say and submit that in May 2009, both advocates for the state of

Gujarat, attempted through their oral declarations before this

Hon’ble Court and thereafter on television interviews to suggest

that the alleged tragic and inhuman incident of Kauserbano, a nine

46

month pregnant woman who’s womb was allegedly slit open by

some of the powerful accused who enjoy state protection and her

nine month old live foetus was swirled on a sword before being

killed was a story concocted by me. I say and submit that the

allegation is not simply ludicrous but consciously detrimental to the

process of justice. I say and submit that it is evident from the

photographs of the brutally dismembered photographs of the

bodies of unnamed victims of the Gulberg and Naroda massacres

available with us that unspeakable violence had been committed on

children, women and men. Several accused have boasted of these

acts on camera in Tehelka's Operation Kalank which has been

authenticated by the CBI. Post mortem reports of some of these

simply say “burn injuries” as often happens in such cases of mass

violence. Trials are still on. What could be the motive of the

government of Gujarat to selectively, and publicly undermine the

scale and extent of the tragedy except to protect accused who

enjoy high level patronage and were and are also, ministers in the

state cabinet until recently? I say and submit that this Hon’ble Court

would find that official photographs and videography, mandatory

under the law, that were taken of these scenes of violence by the

Gujarat police have also been concealed from the Trial Courts. I

say nd submit that the SIT has not concerned itself with unearthing

these photographs or the videography until after 173(8) applications

were filed by witnesses.

42. I further say and submit that the series of systematic and concerted

efforts taken by the State of Gujarat in collusion with the powerful and

influential accused persons enumerated herein above is a well

47

thought of strategy of the State to intimidate me, malign my reputation

and the organisation that I represent to somehow ensure that the

moral and emotional support to the victim survivors is broken. I say

and submit that this is a malicious design to subvert the course of

justice.

43. I say and submit that the lackluster investigation by the SIT headed

by Dr Raghavan and the current team has, inter alia, amounted to a

failure to

i. to adequately investigate/ inquire into the larger conspiracy of

State complicity in the communal violence and the involvement

of police officers, civil servants, ministers and politically

influential individuals in these offences (both by way of actual

involvement and by way of complicity: deliberate inaction),

ii. to deliberately exclude from examining, interrogating and

establishing whether or not, through a systematic chain of

command, the chief minister of the state ensured the

breakdown of law and order and Constitutional Governance:

this is transparently obvious in SIT’s failure to dig hard and

deep into three of the worst eve incidents –at Naroda Patiya,

Gulberg and Naroda Gaam – that have been probed by us

through available records of the Police Control Room (PCR),

Case Diaries of Local Police Stations and the Mobile Phone

Records of all Major Functionaries of the State Administration

ad key non-State Actors including Accused.

iii. to investigate the carefully planned build up of arsenal, men

and arms in the leas up to the Godhra tragedy of 27 th February

2002 (Volume II and III of CMP at pages 76-84 of the volume).

48

This build up of bombs, swords, gas cylinders and chemical

powders in preparation for the carnage was exposed both in

Tehelka’s Operation Kalank and affidavits of police officers

former DGP RB Sreekumar and former SP Bhavnagar and

DCP Crime Branch Ahmedabad Rahul Sharma

iv. has deliberately failed to investigate thoroughly documentary

evidence including phone call records, mobile van records,

control room registers, station diary entries and fire brigade

registers, a scrutiny of which would have indicated the levels

of, and extent of pre-planning and conspiracy that went into

the post Godhra violence (Additional Affidavit to the CMP

dated December 1, 2009)

v. has failed to ensure that all those involved are arraigned as

accused, and has failed to take adequate steps to prevent

threats to and intimidation of witnesses.

vi. has also failed to apply for the cancellation of bail of the most

powerful arraigned ensuring that they are free while the trials

are conducted.

Naroda Patiya/Gaam Massacre

In the cases relating to Naroda Patiya & Naroda Gaam

where over 110 persons were brutally murdered and girls and

women were brutally gang raped:

(i) 129 witness statements were NOT recorded by the SIT [Ref

Vol B pg 256 – 260]

(ii) Although numerous witness statements [Ref: Vol B: Sr No 3/

Witness No 18 – Pg 260; Sr No 32/ Witness No 228/1 Pg 270,

Sr No 53 / Witness No 409 Pg 276, Sr No 15/ Witness No 142

Pg 264] had referred to the active involvement (police firing on

Muslim victims) and deliberate inaction of policemen under

49

the charge of Police Inspector K K Mysorewala (now

promoted to Superintendent of Police) who had ordered police

firing on Muslim victims after discussing with Maya Kodnani &

who had repeatedly informed those desperately seeking his

protection , that there were “instructions/ orders from higher

authorities not to protect you “; “there is no order to save

Muslims” & “you have to die today”; - has not been arraigned

as an accused by the SIT. Nor has there been any

investigation by the SIT into the “higher authorities” which had

given him the order/ instructions not to protect Muslims – nor

has any such “higher authority” been arraigned by the SIT.

An analysis of the call details of PI KK Mysorewala

(09825190775) (now promoted) show that on 27.2.2002 there

is only one call received by him from his official number. The

number calling was 09825047044.  On 28.2.2002, his phone

records show that he (Mysorewala, a policeman) was in touch

with VHP accused, Jaideep Patel, accused in the Naroda

Gam and Patiya cases. He received a call from Jaideep Patel

(09825023887) at 10:55:20 for 28 seconds. He was shown in

Narol, Naroda at the time and this was when the massacre

was at its height. All this material has been placed by us

before SIT and yet SIT has chosen to ignore the implications

and not conduct further investigations.

(iii) Although numerous witness statements [Ref: Vol B: Sr. No

15/ witness No 407 Pg 264, Sr. No 51/ Witness No 406/1 Pg

276 & Sr. No 54/ witness No 410 Pg 277, Sr. No 55 Witness

No 412 Pg 277, Sr. No 56 Witness No 413 Pg 278, Sr. No 57

Witness No 420 Pg 278, Sr. No 58 Witness No 421 Pg 278,

50

Sr. No 61 Witness No 425 Pg 279, Sr. No 67 Witness No 433

Pg 281] have referred to the actual involvement of the SRP

Personnel and in particular SRP Officer K. P. Parekh in firing

on fleeing Muslim victims, in encouraging the mob to attack

Muslims and in categorically refusing to protect Muslims and

who had informed hapless victims that “Today you have to

die. No one can save you. We will never save you, we have

order from higher authorities to kill you”; -- neither officer K. P.

Parekh nor any SRP personnel have been arraigned by the

SIT as an accused

(iv) 15 witnesses have named Babu Bajrangi Patel as the leader

of the mob that slaughtered 95 people and of having

personally killed many & having cut open the stomach/ womb

of Kauserbano and killed her foetus [Ref: Vol B Pgs 288 –

292]. Despite this the SIT has not moved for cancellation of

his bail. He roams free today to threaten & intimidate victims

& witnesses. He has even been allowed to go abroad. (CMP

Pg 13)

Babu Bajrangi Patel has also stated on video tape to Tehelka,

that he was protected / housed by Chief Minister Modi in State

Government guest house in Mount Abu, that his bail was

managed and that judges were changed to get him bail. He

has stated that justice Dholakia had refused bail and that his

case was later brought before Justice Akshay Mehta in order

to get him bail. Apparently there has been no investigation /

inquiry into these aspects by the SIT.

51

(v) 53 witnesses have named Suresh Langda Richard Chara of

instigating the mob to rape, kill & burn Muslims and of being

directly involved in murder and rape [Ref: Vol B Pgs 292 to

297]. Despite this, the SIT has not moved for cancellation of

his bail. He roams free to threaten and intimidate victims &

witnesses (CMP Pg 13)

Suresh Chara has stated on videotape that he was

congratulated & garlanded by Chief Minister Modi when he

arrived there later in the evening. Apparently there has been

no inquiry/ investigation into this aspect by the SIT.

Gulberg Case

Applications for arraying new accused have been made by

witnesses, granted in part by the Trial Court and the appeal is

pending before the Gujarat High Court.

This offence relates to the cold-blooded rape and killing of 70

hapless Muslim victims including Ahsan Jafri, in the heart of

Ahmedabad city, over a 11 hour period on 28th February 2002.

i. Significantly the SIT has arraigned an additional 25 persons

as accused, including K. G. Erda: PI Meghaninagar Police

Station (now promoted to ACP) who was also the

Investigating Officer for this case/ offence. However the SIT

has totally failed to inquire/ investigate into the

circumstances in which repeated calls for police assistance

went unheeded, in the very heart of Ahmedabad city, for

almost eight hours and whether this was merely criminal

neglect or a matter of design.

52

ii. P.I. Erda’s phone records shows that during the hours of the

carnage on 27th & 28th February 2002 he had made regular

calls (23 calls: 13 + 10) to the Police Control Room / Police

Commissioner P C Pande, calls (2) to Joint Commissioner

M.K. Tandon & calls (2) to DCP Gondia. The SIT has

apparently not interrogated Joint Commissioner Tandon, or

DCP Gondia or Commissioner P.C.Pande (now DGP

Gujarat State) as to the nature of their communing with PI

Erda and the steps they took in the matter or their failure to

respond / act.

iii. Joint CP Tandon has admitted to the Nanavatii Commission

that he was telephonically informed at 2.00 pm that Ahsan

Jafri was in mortal danger; - he apparently did nothing.

Commissioner of Police P. C. Pande had in fact visited

Gulberg Society at 10.30 am and promised Ahsan Jafri

adequate police protection/ assistance – no such protection

was in fact made available. PC Pande’s call records indicate

that from 2.30 pm to 9.00 pm on the 28 th he was in touch

with police officers in charge of these riot hit areas. The SIT

does not appear to have questioned Pande or Tandon or

pursued the matter.

iv. Moreover it is undisputed that two cabinet ministers Ashok

Bhatt & I. K. Jadeja were sitting at the Police Control Rooms

in Ahmedabad City & at Gandhinagar. Ahsan Jafri made

almost 200 calls for assistance. PI Erda spoke regularly to

the Police Control Room. The SIT has apparently not

53

questioned either Bhatt or Jadeja as to their role, acts/

inaction in the Control Room or pursued this matter.

v. In fact Mr. Shivanand Jha member SIT was the Asst.

Commissioner of Police Ahmedabad and in charge of the

Control Room – and would accordingly be able to depose as

to the calls received from PI Erda, the role of the cabinet

ministers who were present & P C Pande.

vi. The Concerned Citizens Tribunal 2002 (headed by Justice

VR Krishna Iyer) had recorded the statement of a cabinet

minister that on 27th evening a meeting was held by the

Chief Minister, with the Home Minister, the Chief Secretary

Subba Rao, the DG Police Chakravarti & Police

Commissioner Pande at which the Police were instructed not

to do anything to contain the “Hindu reaction” after Godhra

Shri Sreekumar Addl. DGP R.B. Sreekumar has on affidavit

stated that he met DGP Chakravarti in the Chief Ministers

antechamber and was informed by him that the Police had

been instructed not to act. Before filing the charge sheets in

these crucial nine cases, despite all this material available,

the SIT does not appear to have questioned either Chief

Minister Modi, or Chief Secretary Subba Rao, or DGP

Chakravarti or ADGP Sreekumar – or pursued this aspect of

the investigation.

Sardarpura Case

In this case also being tried at present in a special court, the

role of the SIT has been superficial and designed with a view

to ignore investigating substantive documentary evidence.

54

Key witnesses (police) present at the district police stations

and control rooms have not been examined as have not key

witnesses (CRMP 19816 page 11-13). A criminal application

has been filed before the Gujarat High Court in this regard.

44. In fact the SIT has shown a singular lack of interest in inquiring/

investigating into the circumstances in which

(i) the Police force either played an active role in the riots/

attacks/ offences at Gulberg & Naroda, or stood by and

allowed the commission of the offences & failed & refused to

provide protection to the hapless victims often stating that

they were under instructions to refuse assistance/ protection

(ii) senior officers at the Police Control Room failed to react to

repeated calls for assistance and despite being in

communication with the officers at the riot sites , stood by

while a bloodbath / orgy of violence continued for 11 hours

in the very heart of the city

(iii) the evident involvement of two ministers of the Government

in the control room , where information was received of

these situations – but no steps taken to respond thereto

(iv) the role of the chief minister, home minister, chief secretary,

DGP Chakravarti & Police Commissioner P C Pande in

ensuring that no effective steps were taken to prevent or

curtail the bloodbath/ orgy of rape and violence which

continued for as much as 12 hours in the heart of the city.

(v) The analysis of Police Control Room (PCR) records that

had been withheld by the SIT from the charge sheet until

witnesses filed an application under section 173(8) of the

CrPC are disturbing and revealing. They raise more

55

questions than they answer. For instance the PCR records

show that DCP of the area, Praveen B Gondia asks for 330

rounds pf ammunition to be sent to Gulberg society as late

as 6.15 p.m. when the massacre is finished. While the

request is recorded in the data, there is no follow up record

in the PCR records to show that the request was futile and

anything was at all dispatched.

(vi) Similarly through all these investigations the authorities,

state government and the SIT have been cagey and

reluctant to divulge details of the chief minister’s movements

in the critical period between February 27 – March 4, 2002.

Now, following the further investigation plea filed by

witnesses, PCR records show that:

----- at 15:51 on February 28 2002, the VIP Control Room,

Gandhinagar informs Control Room, Ahmedabad that chief

minister Narendra Modi has left Gandhinagar for a

programme at “Ahmedabad Galaxy”; PCR says he reaches

Shahibaug Galaxy in 9 mins; the PCR states at 17:41 the

CM completes the programme at “Annexe” and returns to

Gandhinagar in 41 mins.

Independent investigations reveal that around this time, the

chief minister called a meeting of police officers at the

Shahibaug Circuit House, where some senior officers had

raised serious concerns about the massacres at Gulberg

and Naroda It is reported that the chief minister then turned

to PC Pande for details of the same and the latter said

nothing much had transpired. The officers who had raised

queries it is reported were subsequently transferred.

56

Tehelka’s Operation Kalank records one of the accused

Suresh Langda Chaara saying that around 7 p.m. of the

evening of Febuary 28, 2002, the chief minister had arrived

at Patiya and actually congratulated the young men who had

committed murder and rape. Phone call records of the close

coterie of the chief minister also show that they were all in

the vicnity of the Shahibaug Control Room and/or the

Shahibaug Circuit House Annexe in the afternoon/ evening

hours of February 28, 2002. However while the violence was

raging, though all in the vicinity, neither the chief minister,

not his cabinet colleagues, nor senior police officials went to

either the Gulberg Society nor the Naroda areas. Neither did

they visit the areas after the meeting at the Shahibaug

Annexe.

45. I say and submit that a Scrutiny of Annexure B Colly, especially

the Locational Details of Powerful Policemen, Administrators and

Accused in the Meghaninagar Area (where Gulberg Society is

located) and the Naroda Area (where the Naroda Patiya and Gaam

carnages took place) at odd hours, on February 27, 2002 when the

chief minister was at Godhra –especially when these areas were

not protected enough the next day because they are not historically

known as communally sensitive is revealing. I crave leave to rely

upon Annexure B Colly that details this Locational Analysis first

on February 27 2002 and thereafter on February 28, 2002.

I say and submit that a Thorough Professional and Independent

Investigation into the Integrity of the CD and Its Contents needs to

be undertaken. The phone call records of the chief of police, PC

Pande’s need to be collated with wireless communications, control

57

book records, message books and phone records. This has been

studiously avoided by the SIT.

46. I say and submit that it is clear from the averments in the state’s

affidavit in paragraphs 35-36 that it has tried to collapse the two

separate sets of investigations entrusted to the Special

Investigation Team, one by way of an order of 26.3.2009 and

another by an order of 27.3.2009. The order passed in the case

being SLP (Crl) 1088/ 2008 is passed in an independent petition.

The Petitioners have exercised discipline by ensuring that matters

which does not concern the subject matter of the present

proceedings are not brought in discussion in these proceedings. I

humbly pray that the State be directed to do the same. I am not

responding to the allegations concerning issues raised in the SLP

(Crl)No.1088 of 2008 in this affidavit. I crave leave of this Hon’ble

Court to respond to the allegations in case the same are being

considered by this Hon’ble Court in these proceedings.

47. I would simply like to say at this stage state in relation to paragraph

35 that Annexure R/A-5 refers to the affidavit of the State of

Gujarat. The State has conveniently refused to comment on the

affidavit of the petitioners therein that was filed and shown in the

status report. While the matter of Zakia Jafri is not one of those 9

cases for which SIT was constituted and therefore is not the subject

matter of this application directly, however, one of the accused

named in that complaint is an investigating officer working with the

SIT, who by an order of this Hon’ble Court has been asked to

refrain from participating in the investigations (April 6, 2009). I say

and submit that through this affidavit, the state of Gujarat appears

58

to be undertaking an exercise earlier undertaken by a former MLA

of the ruling party, Kallubhai Maliwad, that is seeking a review of

the order passed by this Hon’ble Court directing the SIT to look into

the complaint and take all necessary steps provided under the law.

I further say and submit that as Convener of the Concerned

Citizens’ Tribunal headed by Justice VR Krishna Iyer and PB

Sawant (retired judges of this Hon’ble Court) ingredients of the

complaint thereafter registered by St Jafri had been collected by us

and presented in the three-volume report Crimes Against Humanity

—Gujarat 2002 on November 21-22, 2002. These included reports

and allegations of illegal meetings and instructions by no less than

the chief minister, unconstitutional behavior by cabinet ministers

sitting in the Ahmedabad City and Gujarat Police State Control

Rooms and City Control Rooms to influence the behaviour of

policemen etc. I say and submit that thereafter, detailed

corroborations of the ingredients of the state level complicity,

planning and premeditation into not just committal of heinous

crimes that killed 2,500 members of a minority community in 2002,

but brazen efforts and misuse of the Constitutional and

Administrative Machinery of the State to destroy evidence, subvert

the process of justice and overpower the criminal justice system,

came to be known through affidavits and records filled by both

errant and responsible officers of the police administration. These

were carefully collated with the original ingredients and together the

complaint dated June 8, 2006 drafted. Thereafter in October 2007,

the expose in Tehelka magazine (Operation Kalank) gave more

ghastly details about the murderous conspiracy.

48. I say and submit that the averments and perverse innuendoes

59

contained in paragraph 38 of the government of Gujarat’s affidavit,

related To the Judge Mehta Report on the Godhra Case is

illustrative of a mindset that militates against Indian Constitutional

Principles. I say and submit that we have consistently maintained

that many of the accused of the arson on the S-6 Sabarmati

Express Coach were allegedly innocent poor persons picked up by

the state of Gujarat agencies in combing operations, including one

Iqbal Mamdu who is near 100 per cent blind.

I say and submit that we have also made some averments vis a vis

the Godhra trial in the Cri MP 19816/2009 and will reply upon the

same at the time of final arguments. I say and submit that such

averments as those made in this paragraph are both bad in taste

and also violate Indian Constitutional and Criminal Law.

49. I say and submit that the averments in paragraph 39 contain

loosely stated desires of the Gujarat Government to have directives

for

a) criminal case registered against me and

b) invite notices from this Hon’ble Court to all state governments

for a law against citizens petitioning against crimes of a high

order and magnitude:

militates against the very essence of the India’s Constitution and

our secular, democratic republic. I say and submit that the

reasons we can be rightly proud as an independent nation is

having evolved notions of transparency and accountability in

governance. That this accountability and transparency has been

hard won and due to the efforts and actions of individuals and

institutions to preserve basic democratic rights and freedoms.

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I further say and submit that the fact that eight years down, there is

not a line or paragraph in the 68 page affidavit, that expresses

regret or remorse for the violence of 2002, does not offer respect

or concern for the victim survivors itself reveals the mind and heart

of the Gujarat Government that is ruthless, dictatorial and unmindful

of basic issues of due process of law.

50. I say and submit that through the entire progress of this struggle for

justice for the victim survivors of the genocidal carnage of 2002 in

Gujarat, where state complicity of the very highest level, including

the elected chief minister of the state, there have been persistent,

periodic and malicious attempts to malign my reputation, integrity,

motive by the State.

51. I say and submit that I myself as a journalist and co-editor of

Communalism Combat and as Secretary to a legal rights group.

Citizens for Justice and Peace, formed after the genocidal carnage

of 2002, the contentions in several paragraphs of the Petition are

frivolous and dilatory. The substantive efforts of our group,

collectively backed by the rigour of the victim survivor is a

systematic attempt by a victim survivor assisted by a legal rights

group to collate the shameful facts behind a state sponsored

genocidal carnage of the greatest magnitude involving responsible

members of the political class, the administrative service and the

police service.

52. I further say and submit that myself, and our organization and

lawyers, have been sought to be maligned repeatedly through the

proceedings in the Best Bakery case, during the hearing in the

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present matter and while offering legal help to victims of mass

crimes of 2002. In this connection I say and submit that the whole

issue of citizens groups assisting victims and witnesses in the

process of testimony and getting justice is a principle now well

recognized in national criminal law, jurisprudence and international

law. We crave leave to refer to the necessary reference/ citations/

statutes, national and international to give substance to our claim

as when the need may arise.

53. I say and submit that the repeated innuendoes in Paragraphs 3,

5,12, 22, 33,34,38 and 29 of the affidavit relating to the mind and

inspiration behind this complaint both belittles the agony and quest

for justice of the Victim Survivor as also raises key questions about

the motives behind the allegations. It is a well-accepted principle of

criminal jurisprudence that citizens, victims, and all peoples have

the right and duty to have crimes interrogated prosecuted and

punished. This is the essence of a healthy democratic society and a

vibrant criminal justice system. Often in our country the delays in

trials, especially during mass crimes renders such assistance

pivotal and critical. Instead of appreciation of such efforts, digging

out motives is the work of petty minds. We crave leave to address

this issue at the stage it becomes relevant. I further say and submit

that the malicious allegations against our advocate Shri MM Tirmizi

who has valiantly fought for victims of the carnage of 2002, single

handedly in selfless service, are attempts to target a lawyer

committed to human rights and minority rights and these attempts

speak ill of those in power and the powerful within the state of

Gujarat.

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54. I say and submit that given the attitude of the government of

Gujarat in these nine sensitive cases, and also its deliberately slow

process in the 2,000 cases review despite the orders of this Hon’ble

Court (paragraph 22 is just one example) this Hon’ble Court may

direct the Chief Justice, Gujarat to constitute special benches to

dispose of, within a time bound manner all cases arising out of the

carnage of 2002. I say and submit that in the absence of such

orders it is likely that these crucial cases, many of whom lie in

appeal will not be heard for about 20 years!!

55. In my humble submission, my understanding of the reasons for a

special investigation team (SIT) to be appointed in a case are two.

One, to be the eyes and ears of this Hon’ble Court and to report to

this Hon’ble Court the manner in which progress is being made in

the conduct of the cases referred to it and two, to actually replace

the local police investigation team in view of their obvious in-

competence and dis-inclination to carry out the investigation in the

manner the cases warranted, and conduct an investigation which is

fair, thorough and fully competent to aid in the criminal trial that

follows the investigation.

56. Similarly, it is my understanding that the directions issued by this

Hon’ble Court directing the SIT to carefully choose the prosecutors

and the directions issued for the case to be heard by hand picked

judges by the Hon’ble High Court of Gujarat was to ensure that a

fair trial takes place in all the trials that are being monitored.

57. I say and submit that I understand that the roles of persons like the

Petitioners herein and the organization, Citizens for Justice and

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Peace who are supporting the witnesses are only to facilitate a

process wherein witnesses who need the support to access any of

the forums and who are not accessed by the SIT are provided that

support. The main role in my humble submission is that of the SIT.

58. Unfortunately, as was brought to the notice of this Hon’ble Court in

the Crl.M.P.No. 19816 of 2009 and the subsequent affidavit filed by

me, there are huge shortcomings in the role performed by the SIT

when compared to the expectations that were set by this Hon’ble

Court when it was constituted. I say and submit that the state of

Gujarat by filing its defamatory affidavit, curiously at a belated stage

in this process appears to be unnaturally concerned about any

correctional matters and overtly committed to the inadequate

investigation, minus crucial documentary evidence, as resorted to

by the SIT.

59. I say and submit that the annexures filed with the present rejoinder

affidavit are true copies of their respective originals.

Deponent

Verification:

Verified at Ahmedabad on this 22nd day of April 2010 that the contents of

the above affidavit are true and correct, no part of it is false and nothing

material has been concealed therefrom.

Deponent.

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