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) (vii)

There were threats to and intimidation of witnesses 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 a

translated copy of such a sample of letters from witnesses of various cases right from May 2009 onwards. I say and submit that right from the start Chairperson of the SIT was kept abreast of such developments including by us directly. I crave leave to reproduce these communications as and when it becomes necessary.

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, 27th February 2002. II further say and submit that copies of the police control room records and fire brigade registers further complete the somber picture and I crave leave to present these analyses as Annexure B Colly. I say and submit that there is no desire on our part to overreach the scope of this affidavit in rejoinder, but simply illustrate, in the interests of public justice, the vast and dangerous extents to which the SIT appears to have gone, unduly influenced

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. a. Smt. Geetha Johri 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 6th April, 2010 by this Honble Court to disassociate themselves from the SIT till further orders.

iii. a.

shish Bhatia 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

of

Shri

Bhatias to

special

public

prosecutor

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

28

is still pending along with the writ petition being Special Criminal Application No. 71/2006. The above facts reveal as to how the state government has been utterly and completely subverting the letter and spirit of the Order of this 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.

29

b. Mayaben Kodnani went absconding for a number of days when she learnt that she was to be arrested. The SIT facilitated it by almost announcing the same by issuing her a summons. As a minister, she had PSOs and security guards detailed with her, yet she went missing! Unless these security guards deliberately allowed Mayaben to go alone and hide wherever she pleased, it 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

30

are serious loopholes in the investigations as can be seen from a perusal of the chargesheet. No questions or investigations on the clear signs of conspiracy as they emerge from an analysis of the documentary evidence are made in the Naroda Patiya, Naroda Gaam and Gulberg chargesheets.

26.

I say and submit that the baseless allegations made by the government of Gujarat in paragraph 22 of the affidavit saying that I represent undisclosed ulterior vested/political interests are

motivated and malicious. The false statement that allegations made by us on the miscarriage of justice were found to be

unsubstantiated by the SIT is also baseless. The statement by the government of Gujarat that over as many as 200 eyewitnesses and victim survivors are tutored by me is completely baseless. Neither me nor any of the Petitioners that have filed petitions with me have any ulterior motive. We are concerned about the miscarriage of justice and hence are supporting the victims despite very adversarial conditions on the State of Gujarat at the risk of threat to person. I have been given armed protection by this 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

31

gathered knowledge of the manner and method the SIT has carried out its investigation, especially when the SIT does not talk of this faulty manner of its investigation. It is curious how the state of Gujarat gathered the impression. If at all the statements have been videographed this could attract section 162 of the CrPC. I say and submit that there appears to be a coercive design behind the contentions of the government of Gujarat and the fact that the three senior officers belong to the Gujarat cadre is a matter for both concern and consideration of this 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

32

amount to a review of its own order by this Honble Court is a limited and faulty understanding of the critical issues at hand.

29.

I say and submit that it is both clear and well-established law that in an appropriate case when the court feels that the investigation by the police authorities is not headed in the proper direction, or when senior police officials are involved in the said crime, it was and is always open to the court to hand over the investigation to an independent agency like the CBI. It cannot be said that after the charge sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like the CBI. I crave leave to refer to and rely upon various judgements of this 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

33

R/A-( page 622 Volume II of the Government of Gujarats Affidavit). I say and submit that they have deliberately not placed on record any explanation given by him if any. I also say and submit that a) Shri Shah was also the special PP who prosecuted the Bilkees Bano case in Mumbai and b) that we had raised objections to the appointment of the other PPs chosen by the SIT and the state (mentioned in our criminal application 19816/2009). I would also like to take strong exception to paragraph 32 of the government of 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

34

b) Case Diary and Station Diary Notings c) Phone Call Records for Analysis and Conclusions d) Investigations into destruction of bodies, post mortem reports and doctoring of evidence I would further like to say and submit that while the order of this Hon Court on further inquiry inquiry/investigation is clear, though witnesses filed an application before the SIT in November 2009 in the ongoing trial in Mehsana being Sessions Case No. 275/2002 & allied cases, known as Sardarpura Case for further investigation, the SIT preferred not to respond and therefore an application for further investigation was filed by the complainant before the 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

35

crucial eye witnesses. In this case as many as 3 persons had been killed. The SIT relies upon the police statements of the witnesses recorded in the year 2002. The investigation by the Gujarat police was found to be wanting leading to the appointment of the SIT. The panchnama of the scene of the offence drawn in March, 2002 shows that the ashes and burnt remains of the deceased were found from the house no. 839 belonging to Idrish Abdulbhai whereas the police at that time wrongly recorded the statement of Idrishbhai Abdulbhai deliberately manipulating evidence and changing the entire scene of the offence by recording that the deceased Ayeshaben and Noorieben rushed to the house of Gafoorbhai in the adjoining house i.e, house no. 840 where both were burnt alive ! In this case their own statements and panchnamas have been denied to witnesses. Shockingly, the eye witness Idris was never shown his previous police statement. It was only when the first eye witness Idrish Vora was to be examined that the special public prosecutor gave the copy of his statement recorded in March, 2002 which accoding to the witness was falsely recorded and the names of accused deliberately omitted. Thereafter, the victim immediately informed his lawyer in the court who spoke to the special prosecutor. The victim was assured by the special public prosecutor that the evidence would not be recorded and once examination in chief starts time would be sought to rectify this lapse in investigation. Nothing of that sort happened and therefore the lawyer on behalf of the victim Idrish Vora tendered an application seeking further investigation u/s 173(8) of the Code of Criminal Procedure. The examination of the witnesses was differed and the application for further investigation being Exh: 211 was heard and finally dismissed on December 21, 2009. I say and

36

submit that, against this order the witnesses filed a Criminal Revision Application No. 2 of 2010 before the Honble Gujarat High 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,

37

(iii)

the photographs of the dead bodies etc be investigated as the dead bodies were not recognizable,

(iv)

the statements of witness no. 18 namely Basuddin, 409 namely Aminabanu, 228 etc be further investigated.

Since the special public prosecutor was not effectively protecting the cause of the prosecution, witnesses, the victims, in view of the amendment of the Code of Criminal Procedure, Section 24(8), filed an application for filing the vakalatnama of their advocate in the crucial case of Naroda Patiya by filing an application being Exh: 480 in the Trial. The said application was opposed and the same was dismissed on March 5, 2010. I say and submit that in two of the most heinous cases of 2002, Naroda Patiya and Gaam witnesses have been denied legal representation. In the Deepda Darwaza case also it is witnesses, and not the SIT not the state of Gujarat that have moved an application under section 319 of the CrPC against two newly arrayed accused, one Dayabhai Patel, municipal corporator, Mehsana and Prahladbhai Gosa, then MLA Mehsana, an application which was upheld by the Sessions Court Mehsana No 180/2002 (more than seven witnesses had attributed specific roles to the accused) the accused challenged the Sessions Court order by filing a Misc. Criminal Application No. 1620/2010 and 1636/2010.

33.

I say and submit that the averments in paragraph 31, wherein the state is making an all out bid to state that investigations and prosecutions of over 2,000 cases are being satisfactorily carried out is belied by facts on the ground. I say and submit that at the

38

appropriate stage this 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 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.

39

36.

I say and submit that, at various levels it therefore appears that there are collaborative attempts between the state of Gujarat that is meant to further the case of the prosecution and prosecute mass crimes to, in fact discredit statements of the victim survivors, water down the gravity of the offences and weaken the case of the prosecution. It is crystal clear therefore that the fate of these sensitive cases is not safe within the state of Gujarat and we urge that the trials be transferred out of the state. I say and submit that it is clear that the current functionaries of the government of Gujarat are more inclined towards those accused of heinous crimes in the state and offering them protection from punishment. I say and submit that even presently the struggle for justice for victim survivors is arduous. I say and submit that a) the matter filed under section 319 has been listed as many as eight times before the Gujarat High Court following the Trial Court Order of January 18, 2010 (that accepted some of the witnesses contentions while rejecting others) However, the same is not

heard for one or other reason

b)

the Transfer Petition filed in the Gujarat High Court has been listed seven times and yet have not been heard or disposed of.

37.

I say and submit that the averments made specifically in paragraph 33, though repeatedly throughout, in the 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

40

SIT. I say and submit that this practice of the state government, when copies of this report are not made available to us are prejudicial to us and against the basic principles of natural justice. I also say and submit that in all the trials current afoot in the state of Gujarat, accused have tried, one way or another to approach the courts to try and get copies of the report and Courts have refused the same. I say and submit that when both the state government, who is now selectively leaking sections of the report and the accused in many of these heinous cases are doing so simply to pre-judge the issue, slander witnesses and victims and in fact influence the Judges hearing the trial. I say and repeat that to use untested 161 statements for such malicious propaganda, as was also done within these 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

41

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 giving repeated television interviews making the same baseless allegations. Thereafter in several applications before the Trial Courts and the Gujarat High Court, accused have misused this selective leak by the government of Gujarat (the prosecuting agency in the case!!!) to demand the report on grounds that the allegations of tutoring could help their case!! For example, one accused in the Sardarpura trial, Kantilal Patel approached the

Gujarat High Court through a Criminal Revision Application No. 705 of 2009 seeking production of the copy of the report filed by the SIT. The High Court has reserved orders in this case. I say and submit that the underhand way in which the government of Gujarat is a) undermining its own prosecution in all these 9 sensitive cases by deliberately and falsely undermining the credibility of the witnesses and the values of their testimonies is a calculated and well designed attempt to enable the prosecution cases to be weakened and the accused who are all either office bearers, elected representatives or close associates of the ruling party to benefit and go scot free. I say and submit that these repeated attempts are nothing short of an attempt to thwart justice and influence the trials. I say and submit that now they have placed these vile allegations on affidavit there are even greater chances that if the trials continue as is, the contentions of this motivated, defamatory and unsubstantiated affidavit will be used by the accused and government, in collusion to ensure mass acquittals in all these cases. I say and submit that the substance of the affidavit

42

is a clear pointer to the fact that the prosecuterix state has no interest, superficial or genuine to see that justice is done in these cases of blatant human rights violations. I say and submit that therefore it is critical in the interests of due process and justice that these remarks are removed from the records of this 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

43

respectively has named this accused, Shri Patel in court and also assigned him a role with a weapon in the mob that attacked Gulberg society. I say and submit therefore, that, at various levels it therefore appears that there are collaborative attempts between the state of Gujarat that is meant to further the case of the prosecution and prosecute mass crimes to, in fact discredit statements of the victim survivors, water down the gravity of the offences and weaken the case of the prosecution. It is crystal clear therefore that the fate of these sensitive cases is not safe within the state of Gujarat and we urge that the trials be transferred out of the state. 38. I further say and submit that the averments made in paragraphs 33 and 39 of the 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

44

Colly a set of Tables that point out what witnesses have said in their testimonies before the Trial Courts on the issue of the affidavits affirmed by them both before the Police Commissioner, Ahmedabad, the Trial Court and the Apex Court. We also attach as Annexure D Colly detailed Charts showing the Continued Failure of Fair Investigation in the Ongoing Trials by the SIT as also the Status of the Cases in the Trial Courts.

40.

I say and submit that as far as paragraph 34 of the respondent affidavit is concerned, the state of Gujarat only relies upon the police statements and the affidavits of the witnesses knowing fully well that the statements before the police are inadmissible in law. The tone of the affidavit strengthens the apprehension of jeopardizing the trials if the cases are permitted to continue in Gujarat. I say and submit that as the trials progress and the need for exemplary and independent investigation becomes urgent and necessary, the fact that a dispensation that was in power while the carnage raged remains in power and in control of the criminal justice system in the state, is more than likely to harm the deliverance of justice in these cases.

41.

I say and submit that I would specifically like to refute the baseless allegations made in paragraph 34 of the government of 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

45

violence (rape) whereas Nanumiya does. These are witnesses in the case of the Naroda Gaam case. Neither of the two witnesses have yet deposed before the Court. For the state of Gujarat to selectively pull these out before their testimonies in court is clearly an attempt to obfuscate the actual matter at hand. The affidavits themselves state that they were affirmed by the victims and the victims would be best placed to answer any discrepancies if they arise especially in relation to the 161 statements recorded by the SIT. I further say and submit that in December 2008, while investigations were still on by the Special Investigation Team (SIT) defence counsel appearing for the accused in the Naroda Gaam case leaked some of the 161 statements contained in the charge sheet (not yet filed by the SIT in the Trial Court at the time), selectively to sections of the media (The Indian Express) after which we had protested this selective leak to the SIT Chairperson Dr RK Raghavan and also issued a press release. We attach as Annexure D Colly a copy of our letter to the SIT Chairperson as also the press release issued by the Citizens for Justice and Peace. I say and submit that neither have either of the two witnesses, deliberately quoted out of context in the media reports (through the selective leakage of 161 statements) I.e. Madina Arif Malek (Madina Rafik Pathan) nor Nanumiya Malek yet been examined in the Trial Court and for the defence to leak out statements made to the SIT to the media as far back as December 2008 is a conscious and deliberate effort to thwart the due process of justice. I say and submit that in May 2009, both advocates for the state of Gujarat, attempted through their oral declarations before this Honble Court and thereafter on television interviews to suggest that the alleged tragic and inhuman incident of Kauserbano, a nine

46

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 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

47

thought of strategy of the State to intimidate me, malign my reputation and the organisation that I represent to somehow ensure that the moral and emotional support to the victim survivors is broken. I say and submit that this is a malicious design to subvert the course of justice.

43. I say and submit that the lackluster investigation by the SIT headed by Dr Raghavan and the current team has, inter alia, amounted to a failure to i. to adequately investigate/ inquire into the larger conspiracy of State complicity in the communal violence and the involvement of police officers, civil servants, ministers and politically influential individuals in these offences (both by way of actual involvement and by way of complicity: deliberate inaction), ii. to deliberately exclude from examining, interrogating and establishing whether or not, through a systematic chain of command, the chief minister of the state ensured the breakdown of law and order and Constitutional Governance: this is transparently obvious in 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 27th February 2002 (Volume II and III of CMP at pages 76-84 of the volume).

48

This build up of bombs, swords, gas cylinders and chemical powders in preparation for the carnage was exposed both in Tehelkas Operation Kalank and affidavits of police officers former DGP RB Sreekumar and former SP Bhavnagar and DCP Crime Branch Ahmedabad Rahul Sharma iv. has deliberately failed to investigate thoroughly documentary evidence including phone call records, mobile van records, control room registers, station diary entries and fire brigade registers, a scrutiny of which would have indicated the levels of, and extent of pre-planning and conspiracy that went into the post Godhra violence (Additional Affidavit to the CMP dated December 1, 2009) v. has failed to ensure that all those involved are arraigned as accused, and has failed to take adequate steps to prevent threats to and intimidation of witnesses. vi. has also failed to apply for the cancellation of bail of the most powerful arraigned ensuring that they are free while the trials are conducted. Naroda Patiya/Gaam Massacre In the cases relating to Naroda Patiya & Naroda Gaam

where over 110 persons were brutally murdered and girls and women were brutally gang raped: (i) 129 witness statements were NOT recorded by the SIT [Ref Vol B pg 256 260] (ii) Although numerous witness statements [Ref: Vol B: Sr No 3/ Witness No 18 Pg 260; Sr No 32/ Witness No 228/1 Pg 270, Sr No 53 / Witness No 409 Pg 276, Sr No 15/ Witness No 142 Pg 264] had referred to the active involvement (police firing on Muslim victims) and deliberate inaction of policemen under

49

the charge of Police Inspector K K Mysorewala (now promoted to Superintendent of Police) who had ordered police firing on Muslim victims after discussing with Maya Kodnani & who had repeatedly informed those desperately seeking his protection , that there were instructions/ orders from higher authorities not to protect you ; there is no order to save Muslims & you have to die today; - has not been arraigned as an accused by the SIT. Nor has there been any investigation by the SIT into the higher authorities which had given him the order/ instructions not to protect Muslims nor has any such higher authority been arraigned by the SIT. An analysis of the call details of PI KK Mysorewala (09825190775) (now promoted) show that on 27.2.2002 there is only one call received by him from his official number. The number calling was 09825047044. On 28.2.2002, his phone records show that he (Mysorewala, a policeman) was in touch with VHP accused, Jaideep Patel, accused in the Naroda Gam and Patiya cases. He received a call from Jaideep Patel (09825023887) at 10:55:20 for 28 seconds. He was shown in Narol, Naroda at the time and this was when the massacre was at its height. All this material has been placed by us before SIT and yet SIT has chosen to ignore the implications and not conduct further investigations. (iii) Although numerous witness statements [Ref: Vol B: Sr. No 15/ witness No 407 Pg 264, Sr. No 51/ Witness No 406/1 Pg 276 & Sr. No 54/ witness No 410 Pg 277, Sr. No 55 Witness No 412 Pg 277, Sr. No 56 Witness No 413 Pg 278, Sr. No 57 Witness No 420 Pg 278, Sr. No 58 Witness No 421 Pg 278,

50

Sr. No 61 Witness No 425 Pg 279, Sr. No 67 Witness No 433 Pg 281] have referred to the actual involvement of the SRP Personnel and in particular SRP Officer K. P. Parekh in firing on fleeing Muslim victims, in encouraging the mob to attack Muslims and in categorically refusing to protect Muslims and who had informed hapless victims that Today you have to die. No one can save you. We will never save you, we have order from higher authorities to kill you; -- neither officer K. P. Parekh nor any SRP personnel have been arraigned by the SIT as an accused

(iv)

15 witnesses have named Babu Bajrangi Patel as the leader of the mob that slaughtered 95 people and of having personally killed many & having cut open the stomach/ womb of Kauserbano and killed her foetus [Ref: Vol B Pgs 288 292]. Despite this the SIT has not moved for cancellation of his bail. He roams free today to threaten & intimidate victims & witnesses. He has even been allowed to go abroad. (CMP Pg 13)

Babu Bajrangi Patel has also stated on video tape to Tehelka, that he was protected / housed by Chief Minister Modi in State Government guest house in Mount Abu, that his bail was managed and that judges were changed to get him bail. He has stated that justice Dholakia had refused bail and that his case was later brought before Justice Akshay Mehta in order to get him bail. Apparently there has been no investigation / inquiry into these aspects by the SIT.

51

(v)

53 witnesses have named Suresh Langda Richard Chara of instigating the mob to rape, kill & burn Muslims and of being directly involved in murder and rape [Ref: Vol B Pgs 292 to 297]. Despite this, the SIT has not moved for cancellation of his bail. He roams free to threaten and intimidate victims & witnesses (CMP Pg 13) Suresh Chara has stated on videotape that he was congratulated & garlanded by Chief Minister Modi when he arrived there later in the evening. Apparently there has been no inquiry/ investigation into this aspect by the SIT.

Gulberg Case Applications for arraying new accused have been made by witnesses, granted in part by the Trial Court and the appeal is pending before the Gujarat High Court.

This offence relates to the cold-blooded rape and killing of 70 hapless Muslim victims including Ahsan Jafri, in the heart of Ahmedabad city, over a 11 hour period on 28th February 2002.

i.

Significantly

the

SIT

has

arraigned

an

additional 25 persons as accused, including K. G. Erda: PI Meghaninagar Police Station (now promoted to ACP) who was also the Investigating Officer for this case/ offence. However the SIT has totally failed to inquire/ investigate into the circumstances in which repeated calls for police assistance went unheeded, in the very heart of Ahmedabad city, for almost eight hours and whether this was merely criminal neglect or a matter of design.

52

ii.

P.I. 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 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 28th 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 & I. K. Jadeja were sitting at the

ministers Ashok Bhatt

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

53

apparently not questioned either Bhatt or Jadeja as to their role, acts/ inaction in the Control Room or pursued this matter.

v.

In fact Mr. Shivanand Jha member SIT was

the Asst. Commissioner of Police Ahmedabad and in charge of the Control Room and would accordingly be able to depose as to the calls received from PI Erda, the role of the cabinet ministers who were present & P C Pande.

vi.

The

Concerned

Citizens

Tribunal

2002

(headed by Justice VR Krishna Iyer) had recorded the statement of a cabinet minister that on 27 th 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

54

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 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

55

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 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.

56

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 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

57

book records, message books and phone records. This has been studiously avoided by the SIT.

46.

I say and submit that it is clear from the averments in the 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

58

to be undertaking an exercise earlier undertaken by a former MLA of the ruling party, Kallubhai Maliwad, that is seeking a review of the order passed by this 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

59

contained in paragraph 38 of the government of Gujarats affidavit, related To the Judge Mehta Report on the Godhra Case is illustrative of a mindset that militates against Indian Constitutional Principles. I say and submit that we have consistently maintained that many of the accused of the arson on the S-6 Sabarmati Express Coach were allegedly innocent poor persons picked up by the state of Gujarat agencies in combing operations, including one Iqbal Mamdu who is near 100 per cent blind. I say and submit that we have also made some averments vis a vis the Godhra trial in the Cri MP 19816/2009 and will reply upon the same at the time of final arguments. I say and submit that such averments as those made in this paragraph are both bad in taste and also violate Indian Constitutional and Criminal Law.

49.

I say and submit that the averments in paragraph 39 contain loosely stated desires of the Gujarat Government to have directives for a) criminal case registered against me and b) invite notices from this 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.

60

I further say and submit that the fact that eight years down, there is not a line or paragraph in the 68 page affidavit, that expresses regret or remorse for the violence of 2002, does not offer respect or concern for the victim survivors itself reveals the mind and heart of the Gujarat Government that is ruthless, dictatorial and unmindful of basic issues of due process of law.

50.

I say and submit that through the entire progress of this struggle for justice for the victim survivors of the genocidal carnage of 2002 in Gujarat, where state complicity of the very highest level, including the elected chief minister of the state, there have been persistent, periodic and malicious attempts to malign my reputation, integrity, motive by the State.

51.

I say and submit that I myself as a journalist and co-editor of Communalism Combat and as Secretary to a legal rights group. Citizens for Justice and Peace, formed after the genocidal carnage of 2002, the contentions in several paragraphs of the Petition are frivolous and dilatory. The substantive efforts of our group, collectively backed by the rigour of the victim survivor is a systematic attempt by a victim survivor assisted by a legal rights group to collate the shameful facts behind a state sponsored genocidal carnage of the greatest magnitude involving responsible members of the political class, the administrative service and the police service.

52.

I further say and submit that myself, and our organization and lawyers, have been sought to be maligned repeatedly through the proceedings in the Best Bakery case, during the hearing in the

61

present matter and while offering legal help to victims of mass crimes of 2002. In this connection I say and submit that the whole issue of citizens groups assisting victims and witnesses in the process of testimony and getting justice is a principle now well recognized in national criminal law, jurisprudence and international law. We crave leave to refer to the necessary reference/ citations/ statutes, national and international to give substance to our claim as when the need may arise.

53.

I say and submit that the repeated innuendoes in Paragraphs 3, 5,12, 22, 33,34,38 and 29 of the affidavit relating to the mind and inspiration behind this complaint both belittles the agony and quest for justice of the Victim Survivor as also raises key questions about the motives behind the allegations. It is a well-accepted principle of criminal jurisprudence that citizens, victims, and all peoples have the right and duty to have crimes interrogated prosecuted and punished. This is the essence of a healthy democratic society and a vibrant criminal justice system. Often in our country the delays in trials, especially during mass crimes renders such assistance pivotal and critical. Instead of appreciation of such efforts, digging out motives is the work of petty minds. We crave leave to address this issue at the stage it becomes relevant. I further say and submit that the malicious allegations against our advocate Shri MM Tirmizi who has valiantly fought for victims of the carnage of 2002, single handedly in selfless service, are attempts to target a lawyer committed to human rights and minority rights and these attempts speak ill of those in power and the powerful within the state of Gujarat.

62

54.

I say and submit that given the attitude of the government of Gujarat in these nine sensitive cases, and also its deliberately slow process in the 2,000 cases review despite the orders of this 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

63

Peace who are supporting the witnesses are only to facilitate a process wherein witnesses who need the support to access any of the forums and who are not accessed by the SIT are provided that support. The main role in my humble submission is that of the SIT.

58.

Unfortunately, as was brought to the notice of this 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 22nd day of April 2010 that the contents of the above affidavit are true and correct, no part of it is false and nothing material has been concealed therefrom.

Deponent.

64

65