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
Honble Court to the State of Gujarat with respect to the present

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 Honble 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

Honble 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 nonperformance of duties enjoined by law, on part of senior
officers and authorities of the State need hardnosed
independent scrutiny;

(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 Tehelkas 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 Honble Court on many occasions during the

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 Honble 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 Honble Court on
affidavit and I draw attention especially to the order of this Honble
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 Honble 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 Honble 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

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
Honble Court being further investigated by a neutral body .,
which tantamount to saying that the SIT was constituted by this
Honble Court to investigate into mere rumours and false

speculations and that this Honble 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 Honble 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

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

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.

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 Honble 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 Honble 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 Honble 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 Honble 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

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 Honble 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

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 Honble 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

10

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 Honble 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

11

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

that these matters have been under the scrutiny of the Honble
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, 27 th
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

12

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, whos 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
Tamangs report in the Ishrat Jahan extra judicial killing case, that

13

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 Honble 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 Honble 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

14

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
states 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 Honble Court. I say and submit that I, being a

15

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 Honble Court.

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

presently under consideration of this Honble 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 Honble Court has seriously indicted her work

and conduct in the investigation of the case of
Sohrabuddins fake encounter ( Rubabuddin Shaikh
v/s State of Gujarat reported in JT 2010 (1) SC 99.
Her review petition for expunging the strictures

16

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

17

SIT have been exposed by the testimonies of

witnesses before the Trial Court.

ii.
a.

Shri Shivanand Jha

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

18

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
Jhas role in the SIT.

19

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 Honble 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

20

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 Honble 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 6 th April, 2010
by this Honble 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 1981619819 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
pressurizing

from
the

this

account

special

of

public

Shri

Bhatias

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 Gujarats 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 Honble 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 Honble Court when he
has asked this Honble 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 uninfluenced by any section.
21.

I say and submit that the averments made in paragraph 5(iv) of the
Gujarat Governments affidavit are misleading. There is no doubt
that the order was passed on May 1, 2009 by the Hon Supreme
Court but the Honble 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 Honble Court. I further
strongly refute the allegations made in Paragraph 5(v) and assert
that the august forum of this Honble 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 Honble Court.

22.

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

governments 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 Honble
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 Honble 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 Honble 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 states
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 Honble
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 Honble 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 is still pending along with
the writ petition being Special Criminal Application No. 71/2006.

28

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 Honble 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

Governments 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.
b. Mayaben Kodnani went absconding for a number of days
when she learnt that she was to be arrested. The SIT

29

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
couldnt 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 Honble High
Court of Gujarat. Not surprisingly, the Honble 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
are serious loopholes in the investigations as can be
seen from a perusal of the chargesheet. No questions or

30

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 Honble 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 Gujarats 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
gathered knowledge of the manner and method the SIT has carried
out its investigation, especially when the SIT does not talk of this

31

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 Honble 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 Honble Courts order dated May 1, 2009. I further say and
submit that apart from the separate petition filed a witness in
another case before this Honble 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 Honble
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
amount to a review of its own order by this Honble Court is a
limited and faulty understanding of the critical issues at hand.

32

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 Honble 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 Honble 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
R/A-( page 622 Volume II of the Government of Gujarats Affidavit).
I say and submit that they have deliberately not placed on record

33

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
Gujarats 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 Honble 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 Honble Court.

I say and submit that the SIT is still to review key documentary
evidence including:
a) Police Control Room Registers
b) Case Diary and Station Diary Notings
c) Phone Call Records for Analysis and Conclusions

34

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
Honble 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 Honble 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 Tehelkas 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
crucial eye witnesses. In this case as many as 3 persons had been
killed. The SIT relies upon the police statements of the witnesses

35

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

submit that, against this order the witnesses filed a Criminal

Revision Application No. 2 of 2010 before the Honble Gujarat High

36

Court, but the same was however dismissed on February 26, 2010.
This witness has approached this Honble 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,

(iii)

the photographs of the dead bodies etc be

investigated as the dead bodies were not
recognizable,

37

(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
appropriate stage this Honble 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

38

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 Gujarats affidavit where it laments the directions of
this Honble Court giving power of the appointment of the Sessions
Judges for these sensitive cases solely to the Honble 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

Gujarats 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.

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

39

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 respondents affidavit are
curious. The state government has, it appears, has reproduced the
sensitive portion of the report submitted to this Honble Court by the
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

40

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 Honble 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 Gujarats 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, whos 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 Honble 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
myself and our advocate Shri MM Tirmizi. This was deplored by this
Honble Court who strongly expressed its anguish at the
government of Gujarats brazen attempts and inquired the source of
the leak. Yet this did not stop the senior counsel, Shri Rohatgi from

41

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 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

42

remarks are removed from the records of this Honble Court. This
questionable conduct by the government of Gujarat in deliberately
and selectively leaking sections of the report has opened a
Pandoras 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 Honble 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
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.

43

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 states 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
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,

44

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 Gujarats
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 Honble Court in 2003. In her
affidavit the victim, Madina, herself does not speak of gender
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

45

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
Honble Court and thereafter on television interviews to suggest
that the alleged tragic and inhuman incident of Kauserbano, a nine
month pregnant woman whos 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

46

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 Honble 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
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

47

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 SITs 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).
This build up of bombs, swords, gas cylinders and chemical
powders in preparation for the carnage was exposed both in
Tehelkas Operation Kalank and affidavits of police officers

48

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
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 &

49

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,
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

50

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.
(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

51

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.

ii.

P.I. Erdas 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

52

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 Pandes 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

questioned either Bhatt or Jadeja as to their role, acts/
inaction in the Control Room or pursued this matter.

53

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.
Key witnesses (police) present at the district police stations
and control rooms have not been examined as have not key

54

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
questions than they answer. For instance the PCR records
show that DCP of the area, Praveen B Gondia asks for 330

55

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 ministers 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.
Tehelkas 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

56

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
Pandes need to be collated with wireless communications, control
book records, message books and phone records. This has been
studiously avoided by the SIT.

57

46.

I say and submit that it is clear from the averments in the states
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 Honble
Court to respond to the allegations in case the same are being
considered by this Honble 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 Honble 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
to be undertaking an exercise earlier undertaken by a former MLA
of the ruling party, Kallubhai Maliwad, that is seeking a review of the

58

order passed by this Honble 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 Honble 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

contained in paragraph 38 of the government of Gujarats affidavit,
related To the Judge Mehta Report on the Godhra Case is

59

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 Honble 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 Indias 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.

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

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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
present matter and while offering legal help to victims of mass
crimes of 2002. In this connection I say and submit that the whole

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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.

54.

I say and submit that given the attitude of the government of

Gujarat in these nine sensitive cases, and also its deliberately slow

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process in the 2,000 cases review despite the orders of this Honble
Court (paragraph 22 is just one example) this Honble 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 Honble Court and to report to
this Honble 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 incompetence 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

Honble 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 Honble 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
Peace who are supporting the witnesses are only to facilitate a
process wherein witnesses who need the support to access any of

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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 Honble 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 Honble
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 22 nd 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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