Final Report
The final report by amicus curiae Raju Ramachandran placed before
the Supreme Court, July 25, 2011
Introduction and background
1. This hon’ble court vide order dated 27.04.2009
directed the Special Investigation Team (hereinafter ‘SIT’) to “look into” the
complaint submitted by the petitioner No. 1 on 08.06.2006 (to the director
general of police of Gujarat, against 63 persons) alleging that the persons
mentioned therein had committed offences inter alia under Section 302
read with 120B, Indian Penal Code, 1860 (hereinafter ‘IPC’). This allegation was
made in relation to the riots which took place in the state of Gujarat between
February 2002 and May 2002 after the Godhra incident on 27.02.2002.
2. Pursuant to the aforesaid direction, Shri AK Malhotra,
former DIG [deputy inspector-general], CBI, and a member of the SIT, examined
more than 160 witnesses and looked into a large number of documents made
available to him. He gave his findings qua the 32 allegations made by the
complainant. A report was submitted to this hon’ble court on 12.05.2010. The
chairman, SIT, has, vide separate remarks dated 14.05.2010, concurred with the
findings of Shri Malhotra.
3. The inquiry conducted by Shri AK Malhotra was in the
nature of a preliminary inquiry in which he recorded the statements of witnesses
(which are signed by the witnesses) and also collected a number of documents.
This was not a statutory investigation under the provisions of the Criminal
Procedure Code, 1973.
4. In his report dated 12.05.2010 (hereinafter referred
to as the ‘Preliminary Report’), Shri AK Malhotra inter alia recommended further
investigation under Section 173(8) of the Code of Criminal Procedure, 1973
(hereinafter ‘CrPC’) against (1) Shri MK Tandon, the then joint commissioner of
police [Jt CP], Ahmedabad city; (2) Shri PB Gondia, the then deputy commissioner
of police [DCP], Ahmedabad; and (3) Shri Gordhan Zadaphiya, the then minister of
state for home, government of Gujarat. This further investigation under Section
173(8), CrPC, was conducted by another officer, namely Shri Himanshu Shukla, DCP,
and supervised by Shri YC Modi, IGP [inspector-general of police], and member,
SIT. In the Further Investigation Report dated 17.11.2010 (hereinafter ‘Further
Investigation Report’), the SIT stated that the material available was not
sufficient to prosecute these three individuals. However, it was stated that the
conduct of Shri MK Tandon and Shri PB Gondia was totally unprofessional and
unbecoming of senior police officers. Hence it was recommended to the government
of Gujarat that it launch departmental proceedings for major penalty against
Shri Tandon and Shri Gondia. The same conclusion is affirmed by the chairman,
SIT, vide his remarks dated 26.11.2010.
5. Around the same time, on 23.11.2010, I was appointed
amicus curiae in the above petition and consequently given (1) copies of
the statements of witnesses recorded by Shri Malhotra; (2) copy of the
Preliminary Report of Shri Malhotra; (3) statements of the witnesses recorded by
Shri Shukla; and (4) the Further Investigation Report submitted by Shri Shukla.
I had meetings with Shri AK Malhotra and Shri YC Modi, in December 2010 and
January 2011. I also had a meeting with Ms Teesta Setalvad and Ms Aparna Bhat,
advocate. A number of documents were received by me from Ms Teesta Setalvad, Ms
Aparna Bhat, advocate and Shri RB Sreekumar, former DGP [director general of
police], Gujarat.
6. The most important allegation in the complaint, which
is required to be considered in detail by this hon’ble court, is the allegation
made against the chief minister of Gujarat, Shri Narendra Modi. It is alleged
that in a high-level meeting held at about 11:00 p.m. on 27.02.2002 at Mr
Narendra Modi’s residence, illegal instructions were issued to senior police
officers and bureaucrats “not to deal with the Hindu rioting mobs”. It is also
alleged that the chief minister had influenced the police at the time of the
riots, as two of his cabinet colleagues were placed in the state police control
room and the Ahmedabad city police control room respectively on 28.02.2002.
7. The SIT, in its Preliminary Report dated 12.05.2010,
concluded that there was no reliable material available to prove that Shri
Narendra Modi had issued any instruction to the officers on 27.02.2002 to the
effect that Hindus should be permitted to vent their anger. The said conclusion
has been endorsed by the chairman, SIT, in his comments dated 14.05.2010.
8. In my note submitted to this hon’ble court on
20.01.2011, it was pointed out that there were a number of circumstances which
required a more detailed investigation to determine if indeed such an
instruction had been given by Shri Modi or not. It was suggested that a further
investigation should be conducted under Section 173(8), CrPC, in the pending
Gulberg Society and/or Naroda Patiya cases and the statement of Shri Sanjiv
Bhatt, DIG, the then deputy commissioner (intelligence), should be recorded.
(The said note also indicated the aspects on which the SIT’s Preliminary Report
dated 12.05.2010 could be accepted.)
9. This hon’ble court vide order dated 15.03.2011
directed the SIT to submit its report on the observations made by me in my note
dated 20.01.2011. It was also observed by this hon’ble court that the SIT would
be free to carry out any further investigation in light of the observations made
in my note.
10. Pursuant to the aforesaid order, the SIT conducted
further investigation under Section 173(8) of the CrPC in Meghaninagar PS Crime
CR No. 67 of 2002 (Gulberg Society case). The SIT recorded the statements of 48
witnesses. These statements were recorded under Section 161, CrPC. A number of
documents were also looked into. A Further Investigation Report was submitted to
this hon’ble court on 24.04.2011, signed by Shri YC Modi, Shri AK Malhotra and
Shri Himanshu Shukla. The chairman of the SIT, Shri RK Raghavan, also gave
forwarding remarks on the same day, agreeing with the findings in the said
report.
11. On 05.05.2011, this hon’ble court passed the
following order:
“Pursuant to our order dated March 15, 2011, the chairman,
Special Investigation Team (SIT), has filed report on the further investigations
carried out by his team along with his remarks thereon. Statements of witnesses
as also the documents have been placed on record in separate volumes. Let a copy
of all these documents along with the report of the chairman be supplied to Mr
Raju Ramachandran, the learned amicus curiae.
The learned amicus curiae shall examine the report, analyse
and have his own independent assessment of the statements of the witnesses
recorded by the SIT and submit his comments thereon. It will be open to the
learned amicus curiae to interact with any of the witnesses who have been
examined by the SIT, including the police officers, as he may deem fit.
If the learned amicus curiae forms an opinion that on the
basis of the material on record, any offence is made out against any person, he
shall mention the same in his report.
List on July 28, 2011 at 3:00 p.m.”
Assessment by amicus curiae of statements of witnesses about
meeting at the chief minister’s residence on 27.02.2002
12. Pursuant to the aforesaid order, copies of statements
of witnesses recorded by the SIT during the course of the further investigation
under Section 161, CrPC, documents collected by the SIT and the Further
Investigation Report dated 24.04.2011 were made available to me on 11.05.2011.
13. The Further Investigation Report and the remarks of
the chairman of the SIT find that a meeting was indeed held at the residence of
the chief minister, Shri Modi, on the night of 27.02.2002 at around 11:00 p.m.
in which senior bureaucrats and senior police officials were present. The report
concludes that the claim made by Shri Sanjiv Bhatt, the then deputy commissioner
of police (intelligence) that he was present at the said meeting was incorrect.
It further concludes that no statement was made by the chief minister, Shri Modi,
in the said meeting, as alleged by the complainant, and no illegal instruction
was issued by Shri Modi to the effect that Hindus should be permitted to vent
their anger. It may be mentioned that Shri Sanjiv Bhatt, who is a serving
officer in the IPS cadre of the state of Gujarat, had stated in his statement
given to the SIT under Section 161, CrPC, that he was present in the said
meeting on 27.02.2002 and the chief minister had made such a statement, as
alleged by the complainant.
14. It was also concluded by the SIT in its Further
Investigation Report that the two ministers who were posted at the state police
control room and Ahmedabad city police control room did not in any manner
influence the working of the police officers at the time of the riots and
therefore it cannot be concluded that these ministers were posted with a view to
carrying out the alleged illegal instruction of Shri Modi.
15. There are other findings in the Further Investigation
Report inter alia that no offence of criminal negligence under Section 304A, IPC,
is made out against Shri MK Tandon, the then joint commissioner of police,
Ahmedabad, and Shri PB Gondia, the then deputy commissioner of police, Ahmedabad.
However, it was concluded (in paragraph 188 of the report) that the conduct of
these two police officers was unprofessional and unbecoming of senior police
officers and would attract departmental proceedings. (It may be recalled that I
had, in my note dated 20.01.2011, suggested that the material available
indicated that the said two police officers should be proceeded against for the
offence of criminal negligence under Section 304A, IPC.)
The SIT has stated that ‘it can be safely concluded
that both these officers (the then Ahmedabad joint commissioner of police,
MK Tandon, and then DCP, PB Gondia) were negligent in their duties’. The SIT
concludes that no offence under Section 304A, IPC, is made out. I am of the
view that a case under Section 304A, IPC, as well as under Section 166, IPC,
is made out
Section 304A.
Causing death by negligence
Whoever causes the death of any person by doing any rash or negligent
act not amounting to culpable homicide shall be punished with imprisonment
of either description for a term which may extend to two years, or with
fine, or with both. |
16. As already stated in paragraph 6, the most serious
allegation levelled by the complainant was regarding the alleged statement made
by Shri Modi in the meeting convened on 27.02.2002. Therefore an interaction
with the witnesses who could throw some light on the said meeting was necessary.
Similarly, witnesses relating to the positioning of the two cabinet ministers
were also relevant. Accordingly, an interaction took place with the following
witnesses at Gandhinagar on June 18 and 19, 2011, namely (1) Shri Sanjiv Bhatt;
(2) Smt Swarnakanta Verma; (3) Shri K. Chakravarti; (4) Shri GC Raiger; (5) Shri
PB Upadhyaya; and (6) Shri PC Pande, the then commissioner of police. 1
(The first of whom, as already stated, claims to have been present at the
meeting at the chief minister’s residence on 27.02.2002, and stated that the
chief minister gave illegal instructions, while the remaining persons do not
accept his presence.)
17. While at Gandhinagar, messages were received from
Shri Rahul Sharma, IPS, and Ms Rupa Mody requesting to meet me but due to time
constraints, it was not possible to meet Shri Sharma or Ms Mody at Gandhinagar.2
Subsequently, at my
request, Mr Rahul Sharma came to Delhi and met me in my Noida office on
26.06.2011 for an interaction. Similarly, Ms Rupa Mody, Shri Firoz Gulzar and
Mrs Sayraben Sandhi along with their advocate Shri SM Vohra met me in my Supreme
Court chamber on 16.07.2011.3
I also thought it fit to interact with Ms Teesta Setalvad, who also met
me on 16.07.2011 in my Supreme Court chamber. During this period I also
interacted on different occasions with Shri Malhotra and Shri YC Modi, members
of the SIT, and a number of clarifications were sought and obtained from them.
18. It may be mentioned that Shri Bhatt brought along
with himself his former driver, Shri Tarachand Yadav. He also submitted an
affidavit of Shri Tarachand Yadav, sworn on 17.06.2011, stating that the same
had been sent for filing in this hon’ble court. The said affidavit seeks to
support Shri Bhatt’s assertion that he had gone to the residence of the chief
minister on 27.02.2002. Shri Bhatt also submitted an affidavit of Shri KD Panth,
police constable, affirmed on 17.06.2011, again stating that the same had been
sent for filing in this hon’ble court. The said affidavit seeks to support Shri
Bhatt’s version about going to the chief minister’s residence on the night of
27.02.2002. Shri Rahul Sharma submitted an analysis of the call records of
senior police officers which, according to Shri Sharma, corroborates Shri
Bhatt’s statement. These documents were taken by me only with a view to help me
in understanding the statements recorded by the SIT.
19. It is necessary to state that the interaction was in
order to understand and appreciate the statements already made by the witnesses
to the SIT and therefore no fresh statements were either recorded or got signed
by me. The witnesses more or less reiterated what they had stated in their
Section 161, CrPC, statements.
20. The most vital material, supporting the allegation
made by the petitioner against Shri Modi, is the statement of Shri Sanjiv Bhatt,
the then DCP (intelligence). The SIT has concluded that his version is not
believable for various reasons inter alia that (a) the other senior
officers present in the said meeting have not supported his statement; (b) his
silence for more than nine years without any proper explanation appears to be
suspicious; (c) a number of departmental and criminal proceedings have been
instituted by the government and hence Shri Bhatt has an axe to grind with the
government of Gujarat. Therefore the SIT opines that his statement is motivated
and cannot be relied upon. The SIT also points out discrepancies in Shri Bhatt’s
versions about the exact language said to have been used by the chief minister.
The SIT also discredits Shri Bhatt by pointing out that his version about a
subsequent meeting at the chief minister’s residence on 28.02.2002 at about
10:30 hours cannot be believed because his mobile phone records show that he was
at Ahmedabad at 10:57 a.m. and therefore could not have reached Gandhinagar
before 11:30 a.m.
21. The SIT has further pointed out that Shri Bhatt has
tried to tutor witnesses (Shri Tarachand Yadav and Shri KD Panth) to support his
version. I have also received a copy of a letter (marked confidential) dated
22.06.2011 from the undersecretary, home department, to the chairman, SIT. In
the said letter, the government of Gujarat has stated that it has “retrieved”
several emails of Shri Sanjiv Bhatt (I am not commenting on the legality of such
“retrieval”). According to the government of Gujarat:
“It leaves no room for doubt that it is a systematic and
larger conspiracy, through Shri Sanjiv Bhatt, involving top leaders of Congress
party in Gujarat, vested interest groups surviving on anti-Gujarat campaign and
electronic and print media reporters, all of whom have started final efforts to
keep the Godhra riot issue live based on concocted facts and Shri Sanjiv Bhatt,
through all of them, is trying to build up a story at a stage when after almost
10 long years, the hon’ble Supreme Court has virtually concluded the judicial
proceedings after undertaking tremendous judicial exercise as elaborately
pointed out in the affidavit of the state government.”
22. I am conscious of the fact that though Shri Bhatt has
been contending that he would speak only when under a legal obligation to do so,
his conduct after making his statement under Section 161, CrPC, has not been
that of a detached police officer who is content with giving his version. I am
left with no doubt that he is actively “strategising” and is in touch with those
who would benefit or gain mileage from his testimony. But these factors, in my
view, cannot be grounds for ignoring his statement at this stage.
23. In my opinion, despite the aforesaid background, it
does not appear very likely that a serving police officer would make such a
serious allegation against Shri Modi, the chief minister of the state, without
some basis. There is no documentary material of any nature whatsoever which can
establish that Shri Bhatt was not present in the meeting on 27.02.2002. In the
absence of the minutes of the meeting, there is again no documentary material
available as to the participants in the meeting and what transpired at the said
meeting. Therefore it is the word of Shri Bhatt against the word of other
officers, senior to him. The SIT has chosen to believe the word of the senior
officers i.e. senior bureaucrats and police officers. However, I find that the
SIT itself, in its Preliminary Report, has observed as follows (at p. 13):
“(3) Some of the public servants, who had retired long back,
claimed loss of memory, as they did not want to get involved in any controversy.
(4) The other category of public servants, who have recently
retired and [been] provided with good post-retirement assignments, felt obliged
to the state government and the present chief minister and therefore their
testimony lacks credibility.
(5) The serving public servants, who have been empanelled for
the higher posts, did not want to come into conflict with the politicians in
power and incur their wrath, which affected their frank response.”
24. I also find it difficult to accept the conclusion of
the SIT that Shri Bhatt’s statement is motivated because he has an axe to grind
with the state government over issues concerning his career. Further, in my
opinion, it may not be proper to disbelieve Shri Bhatt at this stage only
because the other officers have not supported his statement. Similarly, the
delay in making the statement cannot be the sole ground to disbelieve the
statement at this stage, especially in view of his explanation that as an
intelligence officer who was privy to a lot of sensitive information, he would
make a statement only when he was under a legal obligation to do so.
25. It may be recalled that in the aftermath of the
Godhra carnage, the law and order meeting in question was called by the chief
minister at about 11:00 p.m. It seems quite natural for an officer from
intelligence to be called: The chief minister would, after all, have to be made
aware of the intelligence gathered by the police till then. It is also an
admitted position that Shri GC Raiger, the then ADGP [additional director
general of police] (intelligence) was on leave on that day. The DGP, Shri
Chakravarti, does not state that he had gathered intelligence from the office of
Shri Raiger. It is also on record that Shri PB Upadhyaya, the DC [deputy
commissioner] (political and communal) was also on leave on 27.02.2002 and Shri
Bhatt was looking after the work of DC (political and communal). Shri Raiger
states in his statement under Section 161, CrPC, that Shri Bhatt had accompanied
him, in the past, to meetings called by the chief minister though he says he
used to wait outside with files or information. Thus it is quite possible that
Shri Bhatt was directed to attend the meeting on 27.02.2002 at the residence of
the chief minister. The phone call records do not contradict the statement given
by Shri Bhatt to the SIT. Considering the important and emergent nature of the
meeting, the relative “juniority” of Shri Bhatt need not have come in the way of
his attending the meeting, especially since the ADGP (intelligence), Shri Raiger,
was not available. It is anybody’s guess as to why, in the absence of Shri
Raiger, Shri OP Mathur, IGP (security and administration), who was next in
seniority, was not called for the meeting. This aspect, in my view, is of little
significance in the context of an emergency meeting called at short notice in
response to an escalating situation. Similarly, discrepancies about the exact
language used or the time of the meeting at the chief minister’s residence at
Gandhinagar on 28.02.2002 (because he was at Ahmedabad at 10:57 a.m.) are
inevitable considering the lapse of time. (Significantly, there is no material
to suggest that Shri Bhatt was either at Ahmedabad or some place other than
Gandhinagar at any time after 10:57 a.m. on 28.02.2002.) There could be a
discrepancy about the time of the meeting on 28.02.2002. Hence I disagree with
the conclusion of the SIT that Shri Bhatt should be disbelieved at this stage
itself. On the other hand, I am of the view that Shri Bhatt needs to be put
through the test of cross-examination, as do the others who deny his presence.
26. Though the SIT, as the investigating agency, has
taken a view, the question whether Shri Bhatt was present at the meeting on
27.02.2002 and whether Shri Modi had indeed made such a statement (as spoken of
by Shri Bhatt) can only be decided by a court of law. It would not be correct to
disbelieve the version of Shri Bhatt, at this prima facie stage, on the
various grounds set out by the SIT or because other participants in the meeting
have denied (either categorically or to the best of their memory) his presence
and the alleged statement made by Shri Modi. If Shri Bhatt stands the test of
cross-examination then regardless of the fact that other witnesses have not
supported his statement, a court of law may return a finding that Shri Bhatt
indeed was present at the meeting on 27.02.2002 and that Shri Modi did make a
statement as is being alleged by Shri Bhatt.
27. Under the CrPC, if there is some material which
supports the allegation being made by the complainant, a case for proceeding
further is made out against the accused. Section 204, CrPC, uses the expression
“sufficient ground for proceeding”. This hon’ble court has held that the learned
magistrate can proceed further if there is a prima facie case against the
accused. (See Dy Chief Controller of Imports & Exports vs Roshanlal Agarwal
(2003) 4 SCC 139, MN Damani vs SK Sinha (2001) 5 SCC 156.)
28. The stage for believing or disbelieving a witness
arises after trial i.e. once the entire evidence is placed before the court for
its consideration. It would not be correct to conclude, at this stage, that Shri
Bhatt should be completely disbelieved unless there is clinching material
available to the contrary, for example, if there is indisputable material which
proves that he was not present at the meeting but somewhere else. No such
material has been found. Hence it cannot be said, at this stage, that Shri Bhatt
should be disbelieved and no further proceedings should be taken against Shri
Modi.
29. I reiterate here that I am fully conscious of the
fact that the statement made by Shri Bhatt has possible limitations inter alia
(a) the delay of nine years in coming out with his version; and (b) the
statements of other senior officers contesting his claim. I am also fully
conscious of the fact that Shri Bhatt has made attempts to get other witnesses
(i.e. Shri Tarachand Yadav, Shri KD Panth, etc) to support his case and has been
part of a “strategising” effort. However, it is ultimately for the competent
court to decide whether Shri Bhatt is to be believed or not. As long as some
material indicates that the allegation may be true, the case must proceed
further in accordance with law.
Assessment of the role of Shri MK Tandon, the then joint
commissioner of police, Ahmedabad, and Shri PB Gondia, the then deputy
commissioner of police, Ahmedabad
30. The SIT has further examined the role of the two
police officers, namely Shri MK Tandon, the then joint commissioner of police,
Sector II, Ahmedabad, and Shri PB Gondia, the then deputy commissioner of
police, Zone IV, Ahmedabad, and has reiterated its view that no criminal offence
is made out against these officers.
31. I had, in my note dated 20.01.2011, suggested that
prima facie a case under Section 304A, IPC, was made out against these
two officers. I have gone through the statements recorded by the SIT and also
discussed the same in my interaction with the witnesses and the SIT. There are a
number of factors which persuade me not to accept the SIT’s conclusions and I
may mention only a few of them below:
a) There is no reason for Shri MK Tandon to have left the
Gulberg/Naroda area in the absence of a much greater problem elsewhere in his
jurisdiction at the relevant time (i.e. around 12:40 p.m.).
b) There is no reason for Shri MK Tandon not to have
rushed back to Gulberg after 2 p.m. when he knew the situation was getting out
of control and that the situation in the area where he was situated was not that
grave. In any event, there is a complete absence of any supervision by him (of
the situation in the Gulberg area between 2 p.m. and 3:45 p.m.) which prima
facie shows negligence.
c) There was no reason for Shri PB Gondia to have left
Naroda Patiya area at 2:20 p.m. when the situation was explosive and police
firing had been resorted to, in the absence of a more critical situation
somewhere else.
32. In fact, in paragraph 19 of the Further Investigation
Report, the SIT has stated that “…it can be safely concluded that both these
officers were negligent in their duties”; nevertheless, the SIT concludes that
no offence under Section 304A, IPC, is made out. I am not able to persuade
myself to agree with this conclusion and am of the view that a case under
Section 304A, IPC, as well as under Section 166, IPC, is made out, at this prima
facie stage. However, due to subsequent developments, this issue may not
be required to be looked into further by this hon’ble court.
33. It has been brought to my notice that on the basis of
evidence led during the course of trial in the Gulberg Society case, an
application under Section 319, CrPC, has been filed by the victims to summon the
police officers, including Shri PC Pande, Shri MK Tandon and Shri PB Gondia, as
accused, to face charges inter alia under Section 302, IPC. The trial
court however made the following order on the said application on 31.05.2011:
“12. As discussed above, the SIT has further investigated the
case and report of the investigation is submitted before the hon’ble Supreme
Court and hon’ble Supreme Court has seized with the matter about Mr MK Tandon
and other police officers and other persons may be arranged as accused or not
and therefore at this stage this court cannot entertain this application.”
34. I am not privy to the evidence led before the trial
court which purportedly goes to show that there is criminal liability of the
said police officers. It would be appropriate for this hon’ble court to direct
the trial court to consider the said application on the evidence which has been
brought before it. The trial court may also be directed to consider the Further
Investigation Report submitted by Shri Himanshu Shukla to this hon’ble court on
26.11.2010, and the statements recorded by him, and to pass appropriate orders
in accordance with law. The trial court may also be directed to consider whether
an offence under Section 304A, IPC, is made out. It is respectfully submitted
that since the SIT has conducted a statutory investigation under Section 173(8),
CrPC, the report is required to be filed in court and it is for the competent
court to pass necessary orders after hearing the concerned parties.
Nature of offence(s) prima facie made out
35. The next question which arises is that if the
statement of Shri Bhatt is to be believed then what offence(s) are made out
against Shri Modi. The direct role of Shri Modi is limited to allegedly making
this statement on 27.02.2002. Though it is alleged that with a view to ensuring
that his instructions were carried out by the police department, Shri Modi had
positioned two of his cabinet colleagues at the state police control room and
the Ahmedabad city police control room respectively, the SIT has come to the
conclusion that the ministers did not interfere in any manner with the
functioning of the police. The material collected by the SIT does not indicate
that these two ministers interfered with the working of the police department at
the time the riots were taking place. However, there is the possibility that the
very presence of these two ministers had a dampening effect on the senior police
officials i.e. the DGP and the commissioner of police, Ahmedabad, if indeed Shri
Modi had made a statement (as alleged) the previous night. This is again one of
the circumstances which can be taken into account and examined during the course
of trial.
36. The chairman, SIT, in his earlier comments dated
14.05.2010, found as follows (at p. 5):
“It has been conclusively established that the two ministers
were indeed operating from the two control rooms for a few days from 28.02.2002
onwards. There is however no information to establish that they interfered with
police operations during the time they were there. Nor is there information that
this arrangement was at the instance of the chief minister himself although
there is every likelihood that this had at least his tacit approval. It is quite
possible that DGP Chakravarti was unhappy with this arrangement. He has however
denied that he ever gave expression to his resentment, as suggested by Shri RB
Sreekumar, the then ADGP, in his affidavit before the Nanavati Commission and
statement made before the SIT (vide pages 28-32 of the inquiry report).”
37. However, in the present forwarding remarks to the
Further Investigation Report, the chairman, SIT, has taken the view that (at p.
5):
“It is true that two ministers, Shri IK Jadeja and late Ashok
Bhatt, were positioned reportedly to monitor the law and order situation. One of
them, viz IK Jadeja, remained at the police headquarters for about two to three
hours on 28.02.2002. The presence of a second minister, viz Ashok Bhatt,
supposed to be stationed at Ahmedabad city police control room on 28.02.2002,
was not established. No evidence is available to suggest that they ever
interfered with the police operations to bring the situation under control or
that they conspired in the perpetration of the riots.”
38. Thus it would appear that – in respect of Shri Ashok
Bhatt – the Further Investigation Report is at variance with the Preliminary
Report. It is pertinent to point out that the Preliminary Report had relied on
Shri Ashok Bhatt’s own statement that he visited the control room on 28.02.2002
for about 10 minutes and concluded that “the allegation about the positioning of
Shri Ashok Bhatt, the then health minister, in the control room, Ahmedabad city,
appears to be correct but there is no evidence to prove his interference in the
police work.” In light of this admission, the doubt expressed by the SIT in the
Further Investigation Report about the presence of Shri Ashok Bhatt in the
control room on 28.02.2002 is without basis. Thus it stands established, as per
the SIT’s Preliminary Report, that the two ministers were present in the police
control rooms at Gandhinagar and Ahmedabad respectively.
39. If Shri Sanjiv Bhatt is to be believed, the message
conveyed by the chief minister (at the meeting held at his residence on
27.02.2002) was further conveyed by the very stationing of the two ministers in
the police control rooms. While there is no direct material to show how and when
the message of the chief minister was conveyed to the two ministers, the very
presence of political personalities unconnected with the home portfolio at the
police control rooms is circumstantial evidence of the chief minister directing,
requesting or allowing them to be present. As already noted, the chairman, SIT,
himself has found that their positioning in the police control rooms had, at
least, the chief minister’s “tacit approval”.
40. However, there is no material to show that the
ministers interfered with the functioning of the police department or gave any
instructions to the senior police officers. Even Shri Bhatt, who claims to have
been present in the police headquarters at that time, says that Shri Jadeja did
not remain in the office of the DGP for a very long time. There is an absence of
material to indicate that the statement of Shri Modi, allegedly made in the
meeting on 27.02.2002, had been actively implemented by the ministers or the two
police officials who participated in the said meeting.
41. Hence the question to be examined is whether the
making of the statement by the chief minister in the meeting on 27.02.2002, by
itself, is an offence under law. In my opinion, the offences which can be made
out against Shri Modi, at this prima facie stage, are offences inter alia
under Sections 153A(1)(a) & (b), 153B(1)(c), 166 and 505(2) of the IPC. (For
convenience of reference, these statutory provisions are set out in a Schedule
annexed hereto.) However, it would be for the court of competent jurisdiction to
decide whether Shri Modi has to be summoned for any or all of these offences or
for any other offence(s).
Submission on the procedure that may be adopted
42. The next question to be answered is what further is
to be done in relation to the SIT report(s). I may mention that there are now
two types of reports before this hon’ble court, namely (a) One Preliminary
Inquiry Report dated 12.05.2010; (b) Two Further Investigation Reports i.e.
reports made under Section 173(8), CrPC. Insofar as the Preliminary Inquiry
Report is concerned, submissions shall be made at the time of hearing of the
special leave petition.
43. However, insofar as the two statutory Further
Investigation Reports are concerned, the same would have to be acted upon in
accordance with the CrPC. The proper course of action would be to place the
material before a court of competent jurisdiction and leave it to such court to
pass appropriate orders in accordance with law. In my opinion, the SIT may be
directed to place (1) the statements of the witnesses recorded under Section
161, CrPC; (2) the documents collected; and (3) its findings before the
competent court, and such court should pass appropriate orders in accordance
with law. This procedure would be fair to the SIT and to the complainant (as
also to the accused). Any order passed by such court would, of course, be
amenable to correction by superior courts.
44. This hon’ble court initially directed the SIT to
“look into” the matter. However, the further investigation has been conducted by
the SIT, and rightly so, by exercise of powers under Section 173(8), CrPC, in
the Gulberg Society case. Hence the said further investigation must be followed
to its logical conclusion by submitting the report before the competent court
for necessary orders. I would respectfully submit that this hon’ble court ought
not to express any view on the merits. Any finding by this hon’ble court in
these proceedings, even prima facie, would be detrimental to the accused
or the complainant, as the case may be. This hon’ble court may leave the matter
to be adjudicated by a court of competent jurisdiction.
45. In sum and substance, the SIT proposes to file a
“Closure Report” in regard to the allegations against Shri Modi. Therefore, in
accordance with the law laid down by this hon’ble court in Bhagwant Singh vs
Commissioner of Police (1985) 2 SCC 537, copies of the statements of
witnesses, documents and the investigation report should be made available to
the complainant and it should be left to the court of competent jurisdiction to
decide whether a case for taking cognisance and issuing process to the accused
has been made out or not. A procedure has been prescribed in law where the
investigating agency proposes to close the case and the same may be followed in
this case as well. This hon’ble court, in Bhagwant Singh vs Commissioner of
Police, held as follows:
“4. Now, when the report forwarded by the officer-in-charge
of a police station to the magistrate under Subsection (2)(i) of Section 173
comes up for consideration by the magistrate, one of two different situations
may arise. The report may conclude that an offence appears to have been
committed by a particular person or persons and in such a case, the magistrate
may do one of three things: (1) he may accept the report and take cognisance of
the offence and issue process or (2) he may disagree with the report and drop
the proceeding or (3) he may direct further investigation under Subsection (3)
of Section 156 and require the police to make a further report. The report may
on the other hand state that in the opinion of the police, no offence appears to
have been committed and where such a report has been made, the magistrate again
has an option to adopt one of three courses: (1) he may accept the report and
drop the proceeding or (2) he may disagree with the report and, taking the view
that there is sufficient ground for proceeding further, take cognisance of the
offence and issue process or (3) he may direct further investigation to be made
by the police under Subsection (3) of Section 156. Where, in either of these two
situations, the magistrate decides to take cognisance of the offence and to
issue process, the informant is not prejudicially affected nor is the injured or
in case of death, any relative of the deceased, aggrieved because cognisance of
the offence is taken by the magistrate and it is decided by the magistrate that
the case shall proceed. But if the magistrate decides that there is no
sufficient ground for proceeding further and drops the proceeding or takes the
view that though there is sufficient ground for proceeding against some, there
is no sufficient ground for proceeding against others mentioned in the first
information report [FIR], the informant would certainly be prejudiced because
the FIR lodged by him would have failed of its purpose, wholly or in part.
Moreover, when the interest of the informant in prompt and effective action
being taken on the FIR lodged by him is clearly recognised by the provisions
contained in Subsection (2)(ii) of Section 173, it must be presumed that the
informant would equally be interested in seeing that the magistrate takes
cognisance of the offence and issues process because that would be culmination
of the FIR lodged by him. There can therefore be no doubt that when, on a
consideration of the report made by the officer-in-charge of a police station
under Subsection (2)(i) of Section 173, the magistrate is not inclined to take
cognisance of the offence and issue process, the informant must be given an
opportunity of being heard so that he can make his submissions to persuade the
magistrate to take cognisance of the offence and issue process. We are
accordingly of the view that in a case where the magistrate to whom a report is
forwarded under Subsection (2)(i) of Section 173 decides not to take cognisance
of the offence and to drop the proceeding or takes the view that there is no
sufficient ground for proceeding against some of the persons mentioned in the
FIR, the magistrate must give notice to the informant and provide him an
opportunity to be heard at the time of consideration of the report…”
It is submitted that the law laid down in Bhagwant Singh
vs Commissioner of Police is applicable in the present context and the
procedure suggested above may thus be adopted.
Other findings of the SIT (as summarised in the chairman’s
remarks dated 24.04.2011) which are acceptable
46. I may now deal with the other findings of the SIT and
give my comments on the same. Though I had observed in my note dated 20.01.2011
that late Shri Haren Pandya (who supported Shri Sanjiv Bhatt) could have been
present in the meeting on 27.02.2002, considering the material gathered by the
SIT and the Further Investigation Report of the SIT, I agree with the SIT (in
paragraph 106 of its report) that Shri Haren Pandya could not have been present
in the meeting on 27.02.2002. Therefore his statement regarding the alleged
statement made by Shri Modi in the said meeting may be disregarded.
47. Similarly, I would also agree with the finding of the
SIT (in paragraphs 107 to 117 of its Further Investigation Report) that the
statement made to Shri RB Sreekumar, the then ADGP (intelligence), by Shri
Chakravarti, the then DGP, on 28.02.2002 would be hearsay evidence, not saved by
res gestae, and therefore would be inadmissible in evidence.
48. As far as the SIT’s conclusion with regard to the
steps taken by the chief minister, Shri Modi, to control the riots in Ahmedabad
is concerned, the same may be accepted, in the absence of any evidence to the
contrary.
49. As far as the SIT’s observations with regard to the
alleged inaction of Shri PC Pande, the then commissioner of police, Ahmedabad,
are concerned, no comment by me is necessary at this stage, since an application
under Section 319, CrPC, has been filed in respect of Shri PC Pande also and the
same may be dealt with by the concerned court in accordance with law in the same
manner as suggested by me in respect of Shri MK Tandon and Shri PB Gondia.
50. As far as the observations of the chairman, SIT, on
the handing over of the bodies of the Godhra victims to Shri Jaideep Patel are
concerned, the same may be accepted.
51. Similarly, as far as the observations of the SIT with
regard to the chief minister’s statement on television on 01.03.2002 are
concerned, the same may be accepted.
Raju Ramachandran
Sr Advocate
New Delhi, July 25, 2011
Notes
1 It may be indicated that the cost for boarding and lodging
for both the amicus curiae at BSF Mess, Gandhinagar, as well as the cost
for local transportation by private taxi was arranged by the SIT. However, none
of the officials of the SIT were present during the closed-door interaction
which the amicus curiae had with the witnesses. The interaction took
place at the conference room of BSF Frontier headquarters at Gandhinagar. The
cost of travel from Delhi to Ahmedabad and back (for both the advocates) was
borne by the amicus curiae. In all the interactions with the witnesses, my
colleague Shri Gaurav Agrawal, advocate, was present.
2 Shri Rahul Sharma, IPS, was SP [superintendent of police],
Bhavnagar, at the time of the riots but later transferred to Ahmedabad as DCP
(control room). He had been asked to associate himself with the investigations
being conducted by the Crime Branch in the riot cases of Ahmedabad, including
the Gulberg Society case. He called for the mobile phone call records from the
cellphone companies and analysed the same. Ms Mody is an eyewitness in the
Gulberg Society case and lost her 13-year-old son in the riots.
3 However, these persons (who are family members of the victims), only
expressed grievances regarding the conduct of the trial and the prosecution, an
area with which I am not concerned in the present task.
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Amicus
curiae: Modi can be prosecuted under the following sections of the IPC
153A. Promoting enmity between different groups on
grounds of religion, race, place of birth, residence, language, etc
and doing acts prejudicial to maintenance of harmony
(1) Whoever
(a) by words, either spoken or written, or by signs
or by visible representations or otherwise, promotes or attempts to
promote, on grounds of religion, race, place of birth, residence,
language, caste or community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill will between different
religious, racial, language or regional groups or castes or
communities, or
(b) commits any act which is prejudicial to the
maintenance of harmony between different religious, racial, language
or regional groups or castes or communities, and which disturbs or is
likely to disturb the public tranquillity… shall be punished with
imprisonment which may extend to three years, or with fine, or with
both.”
153B. Imputations, assertions prejudicial to
national integration
(1) Whoever, by words either spoken or written or
by signs or by visible representations or otherwise –…
(c) makes or publishes any assertion, counsel, plea
or appeal concerning the obligation of any class of persons, by reason
of their being members of any religious, racial, language or regional
group or caste or community, and such assertion, counsel, plea or
appeal causes or is likely to cause disharmony or feelings of enmity
or hatred or ill will between such members and other persons, shall be
punished with imprisonment which may extend to three years, or with
fine, or with both.”
166. Public servant disobeying law, with intent to
cause injury to any person
Whoever, being a public servant, knowingly disobeys
any direction of the law as to the way in which he is to conduct
himself as such public servant, intending to cause, or knowing it to
be likely that he will, by such disobedience, cause injury to any
person, shall be punished with simple imprisonment for a term which
may extend to one year, or with fine, or with both.”
505. Statements conducing to public mischief
…(2) Statements creating or promoting enmity,
hatred or ill will between classes –
Whoever makes, publishes or circulates any statement or report
containing rumour or alarming news with intent to create or promote,
or which is likely to create or promote, on grounds of religion, race,
place of birth, residence, language, caste or community or any other
ground whatsoever, feelings of enmity, hatred or ill will between
different religious, racial, language or regional groups or castes or
communities, shall be punished with imprisonment which may extend to
three years, or with fine, or with both.
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