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NARENDRA MODI ACCUSED BY ZAKIA JAFRI: CONCLUDING ARGUMENTS

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Press Release

29.08.2013

Senior Counsel Sanjay Parikh for Zakia Jafri and Citizens for Justice & Peace made the Concluding Arguments in the Zakia Jafri Protest Petition before the 11th Metropolitan Magistrate’s Court today.

Part A of the Arguments (attached) are on the Legal Aspects of Conspiracy and Abetment.

Part B is on the Factual Aspects of How the Conspiracy by A-1 Narendra Modi was constructed and implemented to ensure Mass Reprisal Killings of innocent Muslims after the Godhra Tragedy on 27.2.2002.

Zakia Jafri Protest Petition

Concluding Arguments on Legal & Factual Aspects

Part A

The Petitioner in the Protest petition has already apprised this court of the orders dated 12.09.2011 and 0702.2013 (Crl Appeal No. 1765/2011) by the Supreme Court and legal parameters for deciding the questions which fall for determination. A note (during the hearings on June 24, 25 & 26, 2013) was given by the petitioner, along with relevant judgements, pointing out the scope and jurisdiction of the proceedings, namely, that at this stage a prima facie assessment has to be made by this Hon’ble Court to find out whether offence was committed by the accused in order to take cognisance and issue process. For this exercise, this Hon’ble Court is neither bound by the ‘label’ given to the report on investigation (u/s 173, 173(8) CrPC) or the conclusions drawn by the SIT. This Hon’ble Court alone has jurisdiction to decide whether material produced by the SIT and by the Petitioner is sufficient for either taking cognisance against the accused or to direct further investigation u/s 156(3) for filing supplementary charge sheet  u/s 173 (8) or proceed to take further statement by itself. While assessing the material, this Hon’ble Court has to keep in mind that it is examining the material before it only prima facie and not applying the parameters which are applicable when statements are recorded during trial. A reasonable suspicion is enough to register a crime, not actual proof of its commission which has to be established during the trial.

Following parameters have been laid down by the Hon’ble Supreme Court in decidng the question of ‘Conspiracy’ u/s 120-A /120-B IPC:

  • Conspiracy is a substantive offence introduced by Criminal Law Amendment, 1913. Conspiracy to commit an offence itself is an offence.
  • Conspiracy is hatched in secrecy; it is difficult to adduce direct evidence; prosecution can only rely on different acts of various parties to infer what they have done pursuant to their common plan.
  • Mostly circumstantial evidence.
  • Actual meeting of two persons not necessary.
  • Actual words of conspiracy not necessary to be proved.
  • A tacit understanding between the conspirators is enough.
  • If several offences are committed pursuant to the conspiracy, all conspirators irrespective of whether they actively participated in the commission of offence, will be liable.
  • Very fact of conspiracy constitutes an offence, not necessary that anything was done in pursuance thereof.
  • For establishing Conspiracy-mere agreement is enough, it can be proved by necessary implications.
  • From the acts and conduct of the parties, conspiracy can be inferred. One performing one part of the act, the other performing other part of the act.
  • Conspiracy can be proved by surrounding circumstances and the conduct of the accused both before and after the alleged commission of crime.

[ Vide:   (i) Bimbadhar vs State of Orissa AIR 1956 SC 469 ( Para 13 & 14);

  •  Leo Roy Frey vs The Supdtt. District Jail AIR 1958 SC 119  (Para 4);
  • Major E.G. Barsey vs State of Bombay AIR 1962 SC 1762  (Para 31);
  • Bhagwan Swaruplal Bishan Lal and ors Vs State of Maharashtra AIR 1965 SC 682 (Para 8);
  •  Lennart Schussler & Anr vs The Director of enforcement and ors 1970 (1) SCC 152 (Para 9 & Para 10) ;
  • Yash Pal Mitthal vs State of Punjab 1977(4) SCC 540 (Para 9);
  • VC Shukla vs State 1988(3) SCC 665 (Para 8) ;
  • Keher Singh vs State 1988(3) SCC 609(Para 271 to 280) ;
  • State of Tamil Nadu vs Nalini and ors 1999(5) SCC 253 (Para 656 & 662) ;
  •  Ferozuddin Bashiruddin vs State of Kerela 2001 (7) SCC 569 (Para 23, 24, 25, 28) ;
  • Mohd. Khalid vs State of WB 2002 (7) SCC 334(Para 17-19) ;
  •  State vs Navjot Sandhu 2005 (11) SCC 600 (Para 89).]

The petitioner however, submits that it in prima facie satisfaction of the offence of conspiracy that is enough at this stage. Larger conpiracy and breakdown of law and order had taken place is clear from the obsertvations already made by the Hon’ble Supreme Court in

  • Zahira Habibullah & Ors vs State of Gujarat 200 (4) SCC 158 Paras 64-69;
  • NHRC vs State of Gujarat 2009 (6) SCC 767. Further Investigation was directed as the investigating machinery had failed to carry out Fair Investigation.
  • For prima facie establishing Conspiracy, enough material is available. In Conspiracy direct evidence is usually not available; it is inferred and proved by circumstantial evidence.

The Petitioner further submits that for construing the offence of ‘abetment’ under section 107-120 under Chapter V of the IPC, the following ingredients, amongst others, are sufficient.

  • Bare agreement to commit an offence is covered by Section 120A. But for abetment there should be some act or illegal omission in pursuance of that conspiracy. Commission of actual crime is not necessary.
  • In abetment by illegal omission, it is to be shown that accused intentionally aided the commission of crime by his non-interference.
  • Omission invokes breach of legal obligation.
  • Non- interference when there is duty to interfere amounts to abetment.
  • A person abets by aiding, when by any act done either prior to, or at the time of the commission of an act, he intends to facilitate, and does in fact facilitates, the commission thereof.
  • Rendering any kind assistance constitutes abetment.
  • Person himself may not act but he may instigate another to put in execution his criminal intentions.
  • Instigation includes- stimulating, suggesting by language or expression or hints or encouragement, advice to act.
  • Words amounting to permission may fall under instigation.

[ Vide      (i)       Jamuna Simngh v/s State of Bihar AIR 1967 SC 553
Para  567;

  •  Sri Ram VS State of UP, 1975 (3) SCC 495, Para 6;
  • Kartar Singh vs State of Punjab, 1994, (3) SCC, 569, Paras 102-109;
  • Ramesh Kumar vs State of Chhatisgarh, 2001 (9) SCC 618, Para 20;
  •  Chittrash kumar vs State 2009 (16) SCC, 605, Paras 11-20 & 26;
  • Pramath Nath VS Saroj ranjan, AIR 1962 SC 876, Para 16 @ 886
  • Ranganayaki VS State throiugh Inspector of Police 2004 (12) SCC 521, Para 11]

For proving abetment, enough material exists. Prima facie the ingredients of abetment exist before the Hon’ble Court to take cognisance.

The Petitioner has already given notes on both ‘Conspiracy’ and ‘Abetment’ along with copies of the cases cited.

In view of the above legal position and relying upon the deailed notes on legal and factual aspects submitted in the course of the hearings from June 24 – August 27, 2013, including the Protest Petition and in SIT Reports, the Petitioner craves leave to refer to the material which prima facie establishes the commission of crime of conspiracy and abetment besides other independent offences under the IPC and other statutory enactments.

Zakia Jafri Protest Petition

Concluding Arguments on Legal & Factual Aspects

Part B

Accused No. 1, Narendra Modi was Pracharak of RSS for nearly two decades. During the chief ministership of Keshubhai Patel, the RSS head had pushed the name of Modi as the chief minister of Gujarat around September 2001.  He actually became CM on 7.10.2001. Thereafter, he fought an MLA bye-election from Rajkot and was declared as elected from the said constituency on 22.2.2002. Five days after his being declared as the elected MLA from Rajkot, the tragic Godhra incident took place on 27.2.2002. Narendra Modi was brought into Gujarat politics to vehemently push the aggressive supremacist Hindutva ideology. He was keen to establish himself within the BJP as a hardline supporter of Hindutva. He came into Gujarat politics with a pre-determined mindset. Therefore, when VHP/RSS/ Bajrang Dal and DurgaVahini wanted to have the ‘Mahayagna’ at Faizabad, Uttar Pradesh to commemorate the anniversary of the demolition of the Babri Masjid (which had taken place on 6.12.1992), inspite of repeated messages from the State Intelligence Bureau (PB Upadhyaya and Sanjiv Bhatt) from 7.2.2002 to 25.2.2002, warning the Government about this Mahayagna and its repercussions and also that 2,800 karsevaks had left Ahmedabad on 22.2.2002 and another batch of 1900 had left on 24.2.2002, no precautionary measures were taken by the government and its home department headed by A-1 Modi. The A-1, therefore, supported the ‘Mahayagna’ as it was in commemoration of the act of the demolition of the Babri Masjid, which also he had supported. The A-28 ACS (Home), Ashok Narayan in his statement before the SIT dated 12.12.2009 has admitted these State Intelligence messages.

In the ordinary course whenever there is a message by the State Intelligence, necessary instructions are issued by the Home Department/DGP to the concerned officers. But no such instructions were issued as this build-up of communal mobilization was allowed. In fact no actions were initiated though the State Government was also informed of the return of karsevaks from Faizabad and the apprehension of the breach of law and order.

The Sabaramti Express which had left Faizabad (UP) on 26.2.2002 carrying a group of karsevaks had witnessed a violent incident at two railway stations, including Rudauli, (Uttar Pradesh). Admittedly, when the Sabaramti Express reached Godhra (at about 7.15 am on 27.2.2002—it was five hours late), the kar sevaks were shouting provocative, anti-Muslim slogans.

Thereafter the said incident took place resulting in burning of two coaches, of which S-6 was badly burnt. To complete the narration, the train reached Vadodara after leaving Godhra at 1-1.30 p.m. where karsevaks had assaulted three persons, one of them being Abdul Rashid who died. From Vadodara the train reached Anand around 2.20 p.m. where again violence took place and karsevaks indulged in violence, killing of one person and causing injury to two persons.—they were all Muslims. From Anand the train finally reached Ahmedabad railway station around 3 p.m. where the karsevaks were shouting bloodthirsty sloganx (“Khoon ka badla Khoon”) threatening revenge against all Muslims. At Ahmedabad railway station, stabbing, stone pelting incidents etc. also took place.

The Fax message of the incident was sent by DM Smt. Jayanti Ravi to the CMO, Home Department and Revenue Department, which was received at 9 a.m. of 27.2.2002. In the said message, it was clearly mentioned that the karsevaks were shouting provocative, anti-Muslim slogans. In addition, Sanjiv Bhatt, State Intelligence had also sent a message to the CS, HS,CM, MOS Home and DGP Gandhinagar confirming the fact that kar sevaks were shouting provocative slogans  (Both messages are available in the SIT Records).

That the A-1 already having a mindset, indulged in act of Conspiracy and Abetment with other accused and other accused inter se which will be clear from the following:-

  • After receiving the fax message from Jayanti Ravi, Collector/DM, two telephone calls were made by A-1 to Jaideep Patel (A-21), General Secretary of the VHP from the Mobile: 09825037439 belonging to the PA of A-1 Modi, AP Patel. The PA’s (A.P. Patel) statement is the only one that the SIT has conspicuously avoided recording though statements of five other officials from the Chief Minister’s Office (CMO) have been recorded. A-1 issued instructions to Jaideep Patel, (A-21) who was at that time at Naroda, and who, therafter, left for Godhra reaching there around 12 noon. The first manifestation of the Criminal Act of Conspiracy took place between A-1 and A-21 when A-1 as the Chief Minister and head of the Government, instead of instructing the police and bureaucratic machinery about the fall out and repercussions of the incident and directing precautionary and preventive steps, called the VHP General Secretary and plotted revenge. An agreement to indulge in acts of criminal nature was arrived at between them. What was done by A-21 after reaching Godhra is clear i.e. he mobilized the VHP cadres at Godhra, institgating them against ordinary Muslims. The Conspiracy, was,  therefore clear, between A-1 and A-21, which was to instigate and mobilise the VHP cadres against ordinary Muslims. This was done by A-1 because of his pre-determined mindset of aggressive Hindutva and anti-Muslim prejudice/bias.
  • In furtherance of this Conspiracy, A-1 called a meeting at his residence at Gandhinagar at 10.30 a.m. The persons who participated in the said meeting and became party to the conspiracy were Minister of State for Home, Gordhan Zadaphiya (A-5), Ashok Narayan, ACS Home, (A-28),K Chakaravarthi DGP, Gujarat (A-25) PC Pande, CP Ahmedabad (A-29),and K. Nityanandam, Home Secretary, (A-34) and other members of the Chief Minister’s Secretariat. With the consent of all, it was decided to suppress the fact that the State Intelligence was constantly warning about the mobilisations by the VHP, BD and Durga Vahini in relation to ‘Mahayagna’ at Faizabad-Ayodhya and its repercussions. It was also decided to suppress the message received from Collector Godhra, Smt. Jayanti Ravi that karsevaks were shouting provocative, anti-Muslim slogans when the train reached Godhra. This Note (for the State Assembly) was prepared at the meeting to suppress the fact that anti-Muslim slogan shouting by kar sevaks was a provocation which led to the incident.

This was deliberately done because A-1 had already mobilized the VHP cadres at Godhra by immeditaley sending Jaideep Patel (A-21) there. It may be noted that even the State Legislature/VidhanSabha was not informed about the fax message of the Collector and only the note prepared in the meeting at the residence of A-1 was read out in the  Vidhan Sabha at 1 p.m. by Gordhan Zadaphiya (A-5).

  • In furtherance of the Conspiracy, A-1 also involved Ashok Bhatt (A-2) Minister of Health, who left Gandhinagar for Godhra on the instructions of A-1 and reached Godhra at 1 p.m. It is clear from the record of the telephonic conversations available with the SIT that, before A-2 reached Godhra, he had several telephonic  conversations with A-1. That Ashok Bhatt was sent to Godhra as part of the Conspiracy is clear from the series of acts which took place at  Godhra including the manner in which the post mortems were deliberately conducted. This will be dealt with a little later. But it is clear that A-1 Modi with his deeply entrenched anti-Muslim mindset was constantly subverting the state’s responsibility of upholding law and order and was allowing his political ideology to override it.
  • Further, the fact that, the VHP declared a bandh for 28.2.2002 –a fact that was known by 12 p.m. on 27.2.2002 (according to a Message of the SIB) which was supported by the ruling BJP, is sufficient evidence to prove that the mobilization of VHP cadre at Godhra was in furtherance of Conspiracy and A-1 Modi had completely caste aside his role as head of Government responsible for upholding law and order. The SIB Message that was sent out before 1 p.m. on 27.2.2002 warned of likely violent repercussions on the occasion of the bandh as well as communal mobilisation by the VHP, and therefore advises bandobast and other strict precautionary measures. The warning of SIB aside, this kind of aggressive mobilization at the site of the Burnt Railway Coach, out in the open, was allowed by A-1 and his Collaborators in violation of the Curfew Orders promulgated by 10.15-10.30 a.m. in Godhra city on 27.2.2002. A-1 by supporting the Bandh violated the law laid down against Bandhs by the Supreme Court (Communist Party(M) of India vs Bharat Kumar & Ors, Supreme Court, 1998 (1) SCC 201) and thus obstructed the lawful functioning of the state machinery. Rajendrasinh Rana (BJP) (A-18) has accepted the responsibility for giving the Bandh call. Nalin Bhatt (A-17 also was party to the decision as also Kaushik Mehta, VHP (A-19).
  • At 1 p.m. on 27.2.2002, as mentioned above, the correct facts were not put before the State Assembly. Mayabehn Kodnani, (A-16), MLA from Naroda Patiya became a part of the Conspiracy by not informing the Assembly of the correct facts and Gordhan Zadaphiya (A-5) who had already become part of the Conspiracy, read out the Note that was prepared at the residence of A-1, suppressing the fact of provocative slogan shouting by the kar sevaks.
  • A very important fact that emerged in the investigation, is a direct statement under section 161 CrPC, given by Sureshbhai Mehta, then Minister for Industries (dated 15.8.2009). Mr Mehta categorically said to the SIT, “I was sitting by the side of Narendra Modi, chief minister who remarked that Hindus should wake up now.”  This direct statement of Mr Suresh Mehta completely supports the fact that A-1 had a pre-disposed mind-set which was biased against Muslims and he had acted in pursuance of the said mindset in hatching the Conspiracy that resulted in a Carnage of Muslims from 28.2.2002 until April/May 2002.
  • There were four phone calls between A-1 Modi and A-2 Bhatt at 13:53:44 hours, 14:50:44 hours, 15:05:09 and 15:38:10 hours all before A-1 Modi left for Godhra (Page 42, Protest Petition, Vol I). The Co-Conspirators, namely, Ashok Bhatt, Minister for Health (A-2) and Jaideep Patel, VHP, (A-21) and Gordhan Zadaphiya, Minister of State for Home (A-5) who reached Godhra around 4 p.m.,  in furtherance of what A-1 Modi had directed, decided to hold en masse post mortems of 58 dead bodies near the burnt Coach out in the open to further provoke the aggressive crowd of RSS-VHP workers present there. Before carrying out the post mortem, no identification of dead bodies was done, relatives were not called or were present which was in violation of existing laws and procedures. The decision to conduct the post mortem in violation of law was a part of Conspiracy of which A-1 was the Chief Architect. By allowing the post mortem in the open, at the Railway Yard, as also allowing photographs to be taken and circulated widely, the RSS-VHP with these Conspirators had a clear design to escalate anti-Muslim feelings and provoke violence against Muslims. They became successful in their design which is clear from the brutal violence that started the same day and intensified from 28.2.2002, continuing for several  months. In the Godhra Sessions Court Judgement (Sessions Case Nos 69/2009/ 86/2006. 204/2009 @ Page 105), the Special Judge PR Patel has pointed out the illegalities that were committed, in particular, that the autopsy was carried out illegally, post mortem was not carried out by panel of two doctors, no attempt was made by the Medical Officer to collect Blood Tissue Samples from dead bodies for being sent to FSL for examination and that no attempt was made to ascertain the presence of any inflammable liquid, petrol, diesel, kerosene acid etc on the dead bodies. Page 100 of the Sessions Court Judgement has a photograph showing the dead bodies lying out in the open at the Railway Yard Godhra.
  • A-1 with Anil Mukhim, Additional Principal Secretary and OP Singh left for Ahmedabad airport from Gandhinagar on the afternoon of 27.2.2002. But instead of going directly, they deliberately took a detour and passed through Meghaninagar and Naroda areas. The fact that they were at Meghaninagar and Naroda is clear from the locational analysis of Anil Mukhim’s Mobile Phone which showed that at 15:33:40 on 27.2.2002  he was there accompanied by A-1 and OP Singh. From Ahmedabad airport they left for Vadodara by plane and from Vadodara by helicopter to Godhra.  They reached Godhra at about 1645 hours as per a SIB message. At the helipad they were received by Ashok Bhatt (A-2) and DM Jayanti Ravi.  When they reached the spot at the railway yard where the burnt coaches were kept, a large crowd of RSS-VHP persons had already assembled and the post mortems were going on. In violation of the curfew, a large mob, consisting mostly of RSS and VHP cadres was allowed to assemble.
  • A-1 entered inside the Burnt Coach (S-6), came out and spoketo the Media as well as VHP and RSS supporters. Statements of VHP-RSS persons who were present  at the time were recorded in a StingOperation by Tehelka (Operation Kalank). All of them spoke about whatwas stated by A-1 NarendtraModi at the spot.

“Tehelka Transcripts about Modi
RAJENDRA VYAS. VHP’s Ahmedabad city president. He was the one who was in-charge of the Sabarmati Express train.

T: mujhejaanatha…narendrabhaikakya…unkekyashabd they? Kyabola unhone?T: I wanted to know about NarendraModi …what were his words…what did he say?

R: bola to sahimaine…kipahleyussnebatayakibhai hum badlalenge…mainejokhudkhuleaam bola…aurmaine us samaykhanabhinahikhayatha…paanibhinahipiyatha…aur main itnaakrosh me tha…kiitne log mare they to meriaakh se aasunikalte they…magar main dadagirikartatha…galiyaboltatha…to wohh (Modi) bolterajendrabhaishaantraho sab ho jaayega …matlab ho jaayegakamatlabkyahai…josamajhne wale samajhsaktehai…
R: I told you…first he said that we will take revenge…whatever I  said publicly at that time…I hadn’t even eaten anything then…Didn’t even have a drop of water…and I was so furious…that so many people had died and hence tears were flowing in from my eyes…but when I started using my strength…started abusing… he asked me to keep silent, everything will be taken care of…What did he mean when he said that everything will be taken care of…the ones who had to understand, understood…

DHIMANT BHATT :

He is chief account officer of the MS University

D: After Godhra, there was this reaction and a climate was created in which the parivar, the top leaders, meaning the RSS, the VHP, the Bajrang Dal, the BJP and the DurgaVahini… and in that we had NarendraModi’s support.. – let people say what they are saying – support in the sense that if Hindus are going to be burnt like this… if conspiracies are going to be hatched to burn Hindus… they wanted to burn the whole train (Sabarmati Express)… and now if we don’t do anything, if we don’t give an adequate reaction, another train will be set on fire…. This was the idea, the thought process that came from him (Modi)… I was present in the meeting…
T: Where, sir…
D: It was held in Baroda only… at a secret place…T: After Godhra …D: Immediately. The same day as Godhra… there were two meetings, one at Ahmedabad and one at Baroda…to what action we have to take…to issme sab log nahi they…some of the very few members were there…BJP RSS Parishad … it was decided that for how long are we going to take this… if we have the guts, we should give a reaction … so everyone felt, unanimously, that we don’t want to be defensive so we should start tonight…

ANIL PATEL

This is the transcript of the meeting with Anil Patel. He is Vibhag Pramukh of Vishwa Hindu Parishad.

No, in Sabarkantha. Entire Sabarkantha. As for setting villages ablaze, even the smallest one was not spared

T: nahibachhaji..
Not spared
A:  Not even one Muslim home was spared in the entire district. At nine in the morning on Feb 27 I got to know that the train had been burnt but when I saw it on TV, I realized it was a big incident and that there would be a big reaction… then a message came from the state office that the next day a bandh would be observed… Then I met a friend who asked me how we would respond
T: musalmanhai?
Was he a Muslim?

ARVIND PANDYA

Special Public Prosecutor

Pandya: nahiaisanahihai…Modi to pahley se apni line kehai… wobaatchodo…lekinwohh post pebaithehai to limitations jyadahai …unkepaasbhikaafi….it is he who gave all signals in favor of hindus…agar ruler hard hota to thodakuchahota…lekinapne log kyahai main aapkobatao…Hindus don’t know how to work with…jaisay Muslims hotehai ..

SURESH RICHARD
Accused in the Naroda Patiya massacre

SR: at about this time… at around seven thirty in the evening, apnaModibhai came…. Right here outside the house our sister garlanded him with roses
T: narendrabhaimodi…
SR: Narendra Modi… He came with black commandos and came out of the ambassador car and walked up here …. Our sisters all garlanded him… a big man stays a big man
T: He came out on the road?
SR: Then he took a round… bola dhanyahaiaapkijaatko bole …apki ma kodhanyahai…
T: He came at about five o clock or at seven?
SR: Around seven, seven thirty….  At that time there was no electricity… no power…. Everything had been burnt to ashes in the riots…

The Operation Kalank (Sting Operation by tehelka)  telecast in October 2007 is part of the SIT Investigation Papers. TheTehelka transcripts have been relied upon by Naroda Patiya Special Court Sessions on 29.8.2012 as strong corroborative evidence.

10. This evidence  proves that  A-1 after reaching Godhra showed the
same mindset and added to the provocation against ordinary Muslims in front of a large aggressive RSS-VHP crowd which had illegally gathered at the spot. All other co-conspiorators namely A-1, A-2, A-5,  A-4 and A-13   were present at the time and, therefore, supported the stands taken by the A-1.

11. Thereafter, A-1 went to Collectorate to meet press and the public. At the Collectorate besides Zadaphiya (A-5), Prabhatsingh Chauhan (A-4), Min for Civil aviation and Pilgrimage as well as local MLA (A-13) joined the Conspiracy. Besides them, Jaideep Pate A-21 was also present at the Collectorate according to DM Jayanti Ravi. A-1, A-4, A-5, A-21,  and A-13 entered into a Conspiracy by taking a unanimous decision that unidentified bodies shall be sent to Ahmedabad (Sola Civil Hospital) and that dead bodies will be handed over to Jaideep Patel (A-21). Superintendant of Police, Raju Bhargava (A-46) agreed with the decision and in collusion with with Conspirators allowed the subversion and violation of the law. Carrying dead bodies outside the territorial jurisdiction of a place where offence has been committed was totally illegal as the dead bodies of the Godhra victims were subject matter of the Railway police investigation.  Further there was no question of handing over these dead bodies to Jaideep Patel (A-21), General Secretary VHP. There was gross interference in the investigational process which is the exclusive domain of the Police Authorities. The A-1, A-2, A-4, A-5, A-21 and A-46 thus acted against the law and subverted the legal process of investigation. These offences were committed as part of larger criminal conspiracy to take the Godhra tragedy, to the rest of Gujarat and exploit the aggressive communal feelings of the Hindus. Instead of containing the fallout of the Godhra tragedy, the conspiracy was hatched to ensure outbreak of widespread violence. It is on record that the dead bodies were brought and kept at Sola Civil Hospital Ahmedabad for facilitating the parading of dead bodies and funeral processions the next day which further triggered the aggressive communal feelings, resulting in the carnage.

12. Yet another material document that provides a link in the chain of conspiracy is the statement given by retired IAS officer Shankar Menon to the SIT on 12.12.2010 which reveals the mindset of Narendra Modi A-1 continuing to give effect to the conspiracy. In the statement, Shankar Menon has said that A-1 also addressed another meeting of political workers at Godhra where he assured aggressive RSS-VHP cadres that the police would not interfere in their thirst for revenge against innocent Muslims. ( Annexure I Volume II, SrNos 179 in SIT Record).

13. After ensuring escalation of violence from Godhra to other parts of Gujarat and and taking decisions contrary to law, A-1 Modi left Godhra by road for Vadodara accompanied by Anil Mukhim, his Principal Secretary. From there he returned by airplane and reached Ahmedabad airport at 2153 hours. By this time in Ahmedabad city, several violent incidents had occurred, 19  FIRs had been lodged and yet only two Preventive Arrests were made, who belonged to the Muslim Community. This dereliction of duty took place in the jurisdiction where PC Pande (A-29) was Commissioner of Police. While returning to Gandhinagar again, they (A-1 plus others) took a diversion towards Naroda and Meghaninagar which were out of the way. Mukhim’s Mobile phone location shows that at 22:01:18 hours they were in the vicinity of Meghaninagar.

It may be noted that of the major incidents that exploded in 14 districts of the State of Gujarat, among the worst was Naroda Patiya where 196 persons were massacred in broad daylight the next day; four were killed in Naroda Gaam and 69 at Meghaninagar on 28.2.2002. It is can be safely inferred from these facts that A-1 in order to give effect to the Conspiracy, visited these areas to and fro on his visit to Godhra with a clear mind to instigate RSS-VHP workers to indulge in mass violence against Muslims. The fact that Babu Bajrangi, Maya Kodnani, Kishan Korani, Bipin Panchal, Ashok Sindhi, Atul Vaidya, Bharat Telli, Mangilal Jain, Bipin Patel, Jaideep Patel among other active members of the RSS-VHP-Bajrang Dal   are accused in these three incidents prove that A-1 Modi, during his visit to these places, had instigated these persons from the VHP-RSS which resulted in violence the next day. In addition, it is critical to mention that Jaideep Patel (A-21) co-conspirator of A-1 is also an accused in Naroda Gaam. The said trial is still going on before the Special Court. Jaideep Patel A-21 belongs to Naroda and he reached back to Ahmedabad from Godhra to give effect to the Conspiracy that was hatched to indulge in mass violence against Muslims.

14. After reaching Ahmedabad, A-1 called an urgent meeting at his
residence at Gandhinagar around 10.30-1045 p.m. This meeting was attended by Ministers in the Cabinet, DGP Chakravarti, ACS Home Ashok Narayan, Commissioner of Police, PC Pande, K Nityanandan, Home Secretary, PK Mishra, Principal secretary, CM, Swarnakantha Verma(deputing for chief secretary Subha Rao) and Anil Mukhim from the CMO. The SIT has questioned the presence of Sanjiv Bhatt, who’s statement is on record under 161 CrPC as also an Affidavit on oath before the Hon’ble Supreme Court, stating that he was present at this meeting, representing the SIB. In this meeting A-1 made the following statement: “that so far in communal riots police takes action on one to one basis and that this will not do now. Allow Hindus to give vent to their anger.”

The fact that A-1 made his statement is proved by the

following:-

(I) Haren Pandya, sitting Minister in the A-1 Narendra Modi’s
government voluntarily appeared before the Concerned Citizens Tribunal on 13.5.2002 and gave information about the provocative instructions given by Accused No.1 Modi at this meeting.  He was mysteriously killed on 26.11.2003. The Tribunal Report states that

“  1.4. Modi played an active role along with at least three Cabinet colleagues, to instruct senior police personnel and civil administrators that a “Hindu reaction was to be expected and this must not be curtailed or controlled.”
Internal Page 76 of Volume II of the Concerned Citizens Tribunal Report @ Annexure III, File, I, D-2, D-3, D-4 of the SIT Record/Papers
“…  1.7.The Tribunal received direct information through a testimony from a highly placed source of a meeting where the chief minister, two or three senior cabinet colleagues, the CP of Ahmedabad, and an IG police of the state were present. This meeting took place on the late evening of February 27. The meeting had a singular purpose: the senior-most police officials were told that they should expect a “Hindu reaction” after Godhra. They were also told that they should not do anything to contain this reaction.Internal Page 82 Volume II of the Concerned  Citizens Tribunal Report in section on State Complicity @ Annexure III, File, I, D-2, D-3, D-4 of the SIT Record/Papers.
Report of the Concerned Citizens Tribunal was released on 21-22.11.2002.
SIT is dismissive of this evidence. (12.5.2010, Malhotra Report, Page 19) :“In the light of the aforesaid discussions, it can be concluded that a. Law & Order review meeting was in fact held by Narendra Modi, Chief Minister at his residence late in the evening of 27-02-2002. However, the allegation that the Chief Minister instructed the Chief Secretary, DGP and other senior officials to allow the Hindu community to give vent to their anger on the minority Muslims in the wake of Godhra incident is not established.”

How the SIT could enter into the area of appreciation of evidence, is beyond common understanding of the law.

(ii) On 27.10.2005, in the Fourth Affidavit, R.B. Sreekumar before the Nanavati Commission dated 27.10.2005 stated that K. Chakravarthi, DGP Gujarat (A-25) had given information of the same words being uttered by A-1 Modi at the meeting on 27.2.2002 and again on 28.2.2002 (Annexure III File III , D-24 of the SIT Papers)

(iii) On 30.10.2004             Mr. Rahul Sharma stated in his deposition on oath before the Nanavati Commission that when he spoke to his superior officer DGP, Gujarat, A-25 Chakravathi on 1.3.2002 at about 10:22 p.m. to request to make more force available for him at Bhavnagar, the DGP told him that he would be given one SRP company by the next morning and if possible he would make some Boarder Wing Home Guard and army columns available whenever they become available to him. Mr. Rahul Sharma states on oath that DGP Mr. K Chakravarti also told him that“the bureaucracy had become completely neutralised”.Mr. Rahul Sharma states on oath that he could not state what the DGP meant by stating that bureaucracy was completely neutralised.

(Para 773 at Page 344 of the Protest Petition)

(iv) On11.07.09 Statement of Shri R.B. Sreekumar,

Formerly Addl.DG (Int.), Gujarat  to the SIT (Annex I, Vol I Sr.

No.5, SIT Papers/Record) where he confirmed what the K

Chakravarti (A-25) had told him on the morning of 28.2.2002

about the provocative words uttered by A-1, the night before.

(v) On 12.08.2009,Statement of Shri Vitthalbhai Pandya, Father of Late HarenPandya, R/o, Paldi, Ahmedabad  (Annex I, Vol I Sr. No.12, SIT Papers/Record) where he stated that his son Haren Pandya had told him about attending the meeting at the residence of A-1 on 27.2.2002 in the late evening as also of the provocative instructions given by A-1.

(vi) On 28.8. 2009, Justices P.B. Sawant and Justice Hosbet Suresh gave two separate statements. Both eminent Judges, retired Supreme Court and High Court respectively, also stated that three serving IPS officers, Sami Ullah Ansari, Himanshu Bhatt and Vinod Mall also deposed before them in person requesting anonyimity but confirming that such illegal instructions were issued.(Annexure I Volume I Sr.Nos 16 & 17 of the SIT Record/Papers). SIT does not record the statements of these officers in this regard.

(vii) SIT does not record the statements of these officers except that of Vinod Mall on 9.12.2009. No question is put to Mall about his knowledge of illegal instructions being issued. (Reference: Annexure I Volume I, Serial Nos 59 Pages 222-223 of the SIT Record/ Papers).Justice Sawant has stated that three other officers had met the Tribunal and stated that Instructions from Above ‘not to act’ had been given by A-1.

(viii) On 25/26.11.2009 the Statement of Sanjiv Bhatt before SIT (Annexure I Volume I, Sr.No.51 and 52 of the SIT Record/Papers)              was recorded. Bhatt states that following a call from the control room that chief minister had called a situation review meeting at his residence and since his senior ADGP (Int) was on leave, the DGP had instructed him to attend the meeting to contribute with the IB’s assessment of the situation. Bhatt mentioned that Ashok Narayan, ACS Home, K.Chakraborthy, DGP, P.C. Pandey, CP and Anil Mukhim PS to the Chief Minister were present.  Bhatt  who stated that he had attended the meeting also stated that none of the cabinet ministers were present. He also stated that he had attended this meeting in his capacity as an Intelligence Officer representing the State IB and had put forward the State IB’s assessment of the situation. He also stated that it may not be professionally appropriate on his part to divulge the exact nature of the discussions that took place but he would be duty bound to disclose the same to the best of his ability when he would be required to do so under a legal obligation.

(ix) On 14.04.2011 – Affidavit of Sanjiv Bhatt filed directly before the Hon’ble Supreme Court. (Annexure IV File X Serial No. 302 of the SIT/Report  apers) in which it was stated that A-1, Chief Minister Narendra Modi, uttered the  following controversial words: “that so far in communal riots police takes  action on one to one basis and that this will not do now. Allow Hindus to give vent to their anger.” (Para 406 at Page 167 of the Protest Petition)

15.       The SIT ignores the fact that none present at the meeting could

have said that such a statement was made since it would

amount to participating in offences above mentioned.

Besides, SIT also ignores the fact that those who supported

A- 1 were favoured by the A-1 by granting plum posts and promotions.

Worst of all, SIT concludes at page 241 of its closure report that even if

A-1 had made such a statement it does not amount to an offence though such a statement, if uttered, is a clear offence under Sections 107.120b, 153a, 153b and 166 of IPC, abetting the Conspiracy hatched with others to allow mass killings of Muslims to satisfy the thirst for revenge.

PC Pande (A-29) has stated in his statement before the SIT that this meeting lasted past 1 a.m. Anil Mukhim and Swanakantha Verma who were both present, mention the presence of cabinet ministers at the meeting,

SIT completely ignores the fact that in the law and order meeting presence of intelligence officers was absolutely essential. Besides, Mr. Bhatt was, on the given day, in charge of Intelligence (Communal) and therefore it was natural that he was called for the meeting.

NOTE BY THE AMICUS CURIAE 

    “…..7. Though SIT has concluded that there is no material to indicate that Shri Narendra Modi, the Chief Minister had issued any instructions to the officers on 27.02.2002 to permit the Hindus to give vent to the anger of the majority community, there are a number of circumstances which prima-facieindicate that the matter requires a detailed investigation to examine the role of Shr Modi immediately after the Godhra incident to find out if there is any culpability to the extent that a message was conveyed that the State machinery would not step in to prevent the communal riots. Some of the circumstances which justify a more detailed investigation into this aspect have been separately enumerated in Chart-A enclosed herewith.

From CHART-A (INTERIM REPORT DATED 20.1.2011)

3. It may not be correct to rule out the presence of Sanjiv Bhat, IPS, D.C. [Intelligence] since ADGP [Intelligence] Shri G.C. Raigar was not available. There is no reason for him to make a wrong statement. He was willing to make a statement if he was protected from legal repercussions of disclosing what transpired in the meeting.

4. It is difficult to believe that when the C.M. came back after the Godhra trip, no Minister was present at his residence. Hence, it may not be totally unbelievable that Shri Haren Pandya was present. Shri Haren Pandya is unfortunately dead, but the statements made by Late Shri Haren Pandya to Justice P.B. Sawant [Retd]  and Justice H. Suresh [Retd] can be used, even if his statement is not been formally reproduced in the writing by the Citizen’s Tribunal.

5. It has also been brought out that an enquiry was made from CM’s office as to the identity of the Minister who had deposed before the Citizen’s Tribunal and that the State Intelligence Bureau had verified the identity as that of Shri Haren Pandya. This also gives some corroboration to the fact that the CM’s office was uncomfortable with the disclosure made by an unidentified Minister to the Citizen’s Tribunal.

6. The statement of Shri R.B. Sreekumar cannot be discarded as hearsay, in the light of Section 6 of the Evidence Act.

7.Another aspect is the fact that VHP General Secretary Jaydeep Patel and Shri Modi were at Godhra on 27.02.2002. The statement of Jaydeep Patel that he did not meet Shri Narendra Modi at Godhra does not inspite confidence. This has to be examined as the Mamlatdar would not have handed over the dead bodies to a non-government person i.e. Jaydeep Patel until and unless somebody very high told him to do so.
(Raju Ramachandran Sr. Advocate with Gaurav Agrawal Advocate, 20.01.2011 New Delhi (Annexure IV File X Serial No.306 of the SIT Record/Papers).

The Final Report of the Amicus Curaie also clearly states that there is material to prosecute A-1 Narendra Modi and some others and put the evidence, including Bhatt’s evidence, to Judicial scrutiny “.Paras 23-28 of theFinal Report are relevant:-

    “Para  23. In my opinion,despite the aforesaid background, it does not appear very likely that a serving police officer would make such a serious allegation against ShriModi, the Chief Minister of the State, without some basis. There is no documentary material of any nature whatsoever which can establish that Shri Bhatt was not present in the meeting on 27.02.2002. In the absence of the minutes of the meeting, there is again no documentary material available as to the participants in the meeting and what transpired at the said meeting. Therefore, it is the word of Shri Bhatt against the word of other officers, senior to him. The SIT has chosen to believe the word of the senior officers, i.e. senior bureaucrats and police officers. However, I find that the SIT itself, in its PreliminaryReport, has observed as follows [at p.13]:-

“(3) Some of the public servants, who had retired long back, claimed loss of memory as they did not want to get involved in any controversy.

(4) The other category of public servants, who have recently retired and provided with good post-retirement assignments, felt obliged to the State Government and the present Chief Minister and therefore their testimony lacks credibility.

(5) The serving public servants, who have been empanelled for the higher posts, did not want to come into conflict with the politicians in power and incurred their wrath which affected their frank response.”

24. I also find it difficult to accept the conclusion of the SIT that Shri Bhatt’s statement is motivated, because he has an axe to grind with the State Government over issues concerning his career. Further, in my opinion, it may not be proper to disbelieve Shri Bhatt at this stage, only because the other officers have not supported his statement. Similarly, the delay in making the statement cannot be the sole ground to disbelieve the statement at this stage, especially in view of his explanation that as an Intelligence Officer who was privy to a lot of sensitive information, he would make a statement only when he was under a legal obligation to do so.

25. It may be recalled that, in the aftermath of the Godhra carnage, the law and order meeting in question was called by the Chief Minister at about 11:00 P.M. It seems quite natural for an officer from the Intelligence to be called: The Chief Minister would, after all, have to be made aware of the intelligence gathered by the police till then. It is also an admitted position that Shri G.C. Raiger, the then ADGP (Intelligence) was on leave on that day. The DGP,ShriChakravarthi does not state that he had gathered intelligence from the office of ShriRaiger. It is also on record that Shri P.C. Upadhyay, the DC (Political and Communal) was also on leave on 27.02.2002 and Shri Bhatt was looking after the work of DC (Political and Communal). ShriRaiger states in his statement under Section 161 Cr.P.C. that Shri Bhatt had accompanied him, in the past, to meetings called by the Chief Minister, though he says he used to wait outside with files or information. Thus, it is quite possible that Shri Bhatt was directed to attend the meeting on 27.02.2002 at the residence of the Chief Minister. The phone call records do not contradict the statement given by Shri Bhatt to the SIT. Considering the important and emergent nature of the meeting, the relative “juniority” of Shri Bhatt need not have come in the way of his attending the meeting, especially since the ADGP (Intelligence), ShriRaiger was not available. It is anybody’s guess as to why, in the absence of ShriRaiger, Shri O.P. Mathur [IGP (Security & Administration)], who was next in seniority, was not called for the meeting. This aspect, in my view, is of little significance in the context of an emergency meeting called at short notice in response to an escalating situation. Similarly, discrepancies about the exact language used or the time of the meeting at the Chief Minister’s residence at Gandhinagar on 28.02.2002 (because he was at Ahmedabad at 10:57 A.M.) are inevitable, considering the lapse of time. (Significantly, there is no material to suggest that Shri Bhatt was either at Ahmedabad or some place other than Gandhinagar at any time after 10:57 A.M. on 28.02.2002.) There could be a discrepancy about the time of the meeting on 28.02.2002. Hence, I disagree with the conclusion of the SIT that Shri Bhatt should be disbelieved at this stage itself. On the other hand, I am of the view that Shri Bhatt needs to be put through the test of cross-examination, as do the others who deny his presence.

26. Though the SIT, as the investigating agency, has taken a view, the question whether Shri Bhatt was present at the meeting on 27.02.2002 and whether ShriModi had indeed made such a statement (as spoken to by Shri Bhatt) can only be decided by a court of law. It would not be correct to disbelieve the version of Shri Bhatt, at this prima facie stage, on the various grounds set out by the SIT or because other participants in the meeting have denied (either categorically, or to the best of their memory) his presence and the alleged statement made by ShriModi. If Shri Bhatt stands the test of cross-examination, then regardless of the fact that other witnesses have not supported his statement, a court of law may return a finding that Shri Bhatt indeed was present at the meeting on 27.02.2002, and that ShriModi did make a statement as is being alleged by Shri Bhatt.

27. Under the Cr.P.C., if there is some material which supports the allegation being made by the Complainant, a case for proceeding further is made out against the accused. Section 204 Cr.P.C. uses the expression “sufficient ground for proceeding”. This Hon’ble Court has held that the learned Magistrate can proceed further, if there is aprima facie case against the accused. [See Dy. Chief Controller of Import & Export vs. RoshanlalAgrawal, (2003) 4 SCC 139, M.N. Damani vs. S.K. Sinha, (2001) 5 SCC 156]

28. The stage for believing or disbelieving a witness arises after trial i.e. once the entire evidence is placed before the court for its consideration. It would not be correct to conclude, at this stage, that Shri Bhatt should be completely disbelieved unless there is clinching material available to the contrary, for example, if there is indisputable material which proves that he was not present at the meeting, but somewhere else. No such material has been found. Hence, it cannot be said, at this stage, that Shri Bhatt should be disbelieved and no further proceedings should be taken against ShriModi.

Specifically Ramachandran recommends in his final report that “

“ Point.41.            Hence, the question to be examined is whether the making of the statement by the Chief Minister in the meeting on 27.02.2002, by itself, is an offence under law. In my opinion, the offences which can be made out against Shri Modi, at this primafacie stage, are offences inter alia under Sections 153A (1) (a) & (b), 153B (1) (c), 166 and 505 (2) of the IPC. (For convenience of reference, these statutory provisions are set out in a Schedule annexed hereto.) However, it would be for the Court of competent jurisdiction to decide whether Shri Modi has to be summoned for any or all of these offences, or for any other offence(s).” (Raju Ramachandran Final Report dated 25.07.2011 also in the SIT Record)

16. Out of the persons present at the meeting, Ashok Narayan (A-28), Chakravarti and Nityanadan (A-34) were already part of the Conspiracy as they had attended the meeting at 10.30 convened by A-1 at his residence. The instructions given by A-1 as head of the government to DGP Chakravarti, A-25, Ashok Narayan A-   PC pande A-29, PK Mishra (A- 31) to subvert the rule of law in execution of the Conspiracy and Abetment, were carried out by these people as they failed to discharge their legal and mandaitory duties. They in fact accepted the said instruction of A-1 and thus became a part of the Conspiracy and Abetment of crimes that took place from 28.2.2002 onwards. It is clear that though they were aware of incidents happening all over the State on 27.2.2002 itself with heavy communal mobilisations by RSS-VHP, no preventive arrests were made and no decision was taken to control the law and order problems as they has succumbed to and had accepted the command of the head of Government, who had allowed the VHP/RSS/Bajrang Dal to take over the State by neutralizing the law and order machinery. The Accused Nos Ashok Narayan (A-28, K Chakaravarti (A-25), K Nityanandam (A-34), PC pande (A-29), PK Mishra (A-31) by not doing their duties mandated by law, abetted and conspired in the crimes with A-1 and other co-Conspirators.

17.    As already designed in the Conspiracy, the Motor Cavalcade carrying 54 dead bodies under the control of Jaideep Patel (A-21) along with the police force started from Godhra at about 10 p.m. and passed through Sevalia, Ambav, Thasra, Dakor, Umreth, Lingda, Allindra, Nadiad, Salun, Vanthwadi, New Maninagar, Ghodasar, Ishanpur, Juhapura, Thaltej, Gujarat High Court  and finally reached Sola Civil Hospital at 3.34 hours (PCR Message, SIT Records). To cover a distance of 153 kms from Godhra the Cavalcade took six hours. It can be inferred that the cavalcade of which Jaideep Patel and other leaders like Hasmukh Patel were a part were stopping on the way and instigating violence. Gordhan Zadaphiya (A-5) and Ashok Bhatt (A-2) as per their own statements before the SIT, also reached Ahmedabad around the same time from which it can be further inferred that they were accompanying the cavalcade. At Sola Civil Hospital the dead bodies were handed over to the Civil Surgeon, Dr Pushpa Belani by Jaideep Patel (A-21). Nadiad and Ghodasar apart from Sevalia recorded brute violence in the days that followed. (Page 49-50, Protest Petition, Vol. I)

18.            The fact that the dead bodies were handed over to Jaideep Patel A-21 at Godhra and he handed over the dead bodies to Dr Belani at Sola Civil Hospital has also been mentioned in the SIT Report but yet it failed to draw any adverse inference from this important fact that totally contrary to law the dead bodies were transferred from the jurisdiction where offence was committed and were handed over to a private person when the dead bodies being part of the investigation cannot be so tinkered with. It is shocking that such a gross illegality has been brushed aside by SIT. The facts are clear: that the dead bodies were handed over to Jaideep Patel, (A-21) VHP General Secretary as part of Conspiracy on the instructions of A-1 Modi who was holding the highest position of Chief Minister.

As mentioned above the Amicus Curaie’s Specific observations in Chart A Sub-Para 7 of the Interim Report dated 20.1.2011 is critical:

    “…7,  Another aspect is the fact that VHP General Secretary Jaydeep Patel and Shri Modi were at Godhra on 27.02.2002. The statement of Jaydeep Patel that he did not meet Shri Narendra Modi at Godhra does not inspite confidence. This has to be examined as the Mamlatdar would not have handed over the dead bodies to a non-government person i.e. Jaydeep Patel until and unless somebody very high told him to do so.”

19.       Within less than half an hour of the dead bodies reaching Sola Civil Hospital, 3,000 persons (according to PCR these were RSS workers) gathered at Sola Civil Hospital. This obviously shows that information had already reached them about the arrival of the Dead Bodies in the Motor Cavalcade. It is shocking that instead of the police being present on the spot and not permitting the public to  assemble, 3,000 RSS workers were allowed to assemble, which happened because of conspiracy hatched by A-1 along with the other accused i.e. Ministers and Senior Police Officers and Bureaucrats. The Police did not reach despite the fact that a PCR message at 1:59 hours was sent by the Control asking for SRP deployment. There is no answer why in spite of prior information, 3,000 RSS workers were allowed to gather and sufficient bandobast was not provided. Not only was sufficient bandobast not given inspite of intimation that violence may erupt at any time, after 7 a.m. more crowds were allowed to gather, the traffic was blocked and the crowds started attacking the doctors and other medical staff and vandalizing the hospital property.

20.  To show that the Government under A-1 as its head, abandoned its legal and Constitutional duties, is the glaring fact that in this tense situation Giriraj Kishore, Vice President of VHP  arrived at the Ahmedabad airport and a message was given to provide police escort. The government headed by A-1 allowed Acharya Giriraj Kishore of VHP to come to the Sola Civil Hospital by providing him special escort knowing fully well that it will further inflame the atmosphere and result in violence. A-1 allowed this to happen as it facilitated the Conspiracy which he had hatched. Acharya Giriraj Kishore in fact came to Sola Civil Hospital before 11 a.m. where he spoke to media persons and was present there for 10-15 minutes. (Pg 248 Protest Petition, Vol I). In the statement he made the following provocative statement,

“ I appeal to Muslim brethren to condemn the attack and asked them not to put Hindus patience to test. Hindus are maintaining restraint, but if such incidents do not stop there can be a counter reaction which may be uncontrollable;” ( www.rediff.com )

He further elaborated that “Do I have to say that for every action there is a reaction? It would be very difficult for the Hindus to maintain patience at such a heavy price.” (Annexure Volume II, Protest Petition).

21.       To further add to mob violence against Muslims, the Funeral

Processions were taken to Gota Crematoirum which is at a distance of three kilometres from Sola Civil Hospital and also Hatkeshwar Crematorium which is 18-20 kimolteres away. These processions were taken through the city with aggressive crowds accompanying them shouting provocative slogans. In fact the procession that began at 10.30 hours concluded only at 1830 hours (Malhotra Report). It is also on record that Acharya Giriraj Kishore also accompanied the funeral procession upto Gota crematorium. The fact that A-1 as head of the government allowed the unidentified bodies to come to Ahmedabad for cremation, allowed RSS-VHP persons to gather at the hospital, allowed Acharya Giriraj Kishore to address the crowd and media and allowing the funeral processions to take place, speaks volumes about the conspiracy and abetment resulting in the daylight incidents of murder, rape and arson which took place throughout Ahmedabad and other parts of Gujarat. Shivanad Jha (A-38) Additional Commissioner of Police, K Srinivas Collector, Ahmedabad (A-30) and MK Tandon, Joint CP Ahmedabad (A-33), all became the active participants in the conspiracy and abetment at the Sola Civil Hospital and the subsequent violence that erupted thereafter.

22.             Absence of Adequate Preventive Measures: Arrests, Curfew Orders, Free Abuse of Curfew Restrictions  by the RSS-VHP; Delay in giving powers to the Army and non-deployment in districts like Mehsana, Sabarkantha, Banaskantha, Anand and Kheda. Army was sent very late to Godhra and Bhavnagar. Senior ecehelons of the political, police and administrative hierarchy who have been named as Accused are responsible.

23.             Intelligence reports were ignored. State IB Messages before Godhra were deliberately ignored; worse after the outbreak of violence post Godhra, IB Reports submitted by ADGP Sreekumar were deliberately ignored by A-1 since they suggested strong corrective measures to enable a return to normalcy.IB  Reports dated 24.4.2002, 15.6.2002, 20.8.2002 and 28.8.2002.

24.       In another illegal instruction issued by A-1, A-2 and A-3, two ministers of the state cabinet were positioned in the City (Shahibaug, Ahmedabad) Control Rooms. They were positioned there to directly interfere with the functioning of the police and prevent the police from carryiong out its statutory functions. Ministers in Control Room on 28.2.2002 were :- Ashok Bhatt Minister for Health (A-2) & IK Jadeja, Minister for Urban Development (A-3). The fallout of violence in 14 of Gujarat’s districts systematically and in a similar pattern as has been argued at length during the regular arguments provides evidence of the fallout of this move.

25.             Attempts to foment violence from the higher echelons were resisted in some districts by upright police officers and administrators. This has been argued at length with the details of such districts, especially Mehsana and Bhavnagar being given to the Court. In terms of intensity of violence, Ahmedabad city with maximum police force and Army was ironically the worst with officially 326 persons admittedly killed; the second was Panchmahals with 93 deaths minus the 59 persons who died in the train; Mehsana District with 61 deaths; Vadodara City with 36 dealths, Ahmedabad Rural with 33 deaths and Sabarkantha with 32 lives being lost; Kheda 31 dead; dahod 24 dead and Banaskantha 20 persons being killed; Anand 28 among others.

Other and Continuing incidents of Violence in Ahmedabad includinbg forcible closure of Relief Camps include-

Accused Culpable: Amit Shah (A-10), Nalin Bhatt (A-17). Kaushik Mehta (A-19), Kaushik Patel (A-7) ACP MT Rana (A-57), DCP Jebaliya (A-43) KK Mysorewala (A -56 ), KG Erda (A-55). The Violence in Mehsana (3rd worst affected district) was exacererated by the actions of  Niteen Patel, Minister for Finance (A-9) and Naran Laloo Patel, MLA and Minister for Transport (A-12) aided and abeted by Amrutlal Patel, Collector Mehsana (A-51) and AK Sharma, SP Mehsana (Subversion) (A-36).

The Violence in Anand district that recorded over35 deaths    for which Dilip Mani Patel MLA (A-14) and CD Patel, MOS Tourism and MLA, Petlad, Anand (A-8) were responsible. The violence in Kheda (Ghodasar and many other incidents) directly implicate Kuldeep Sharma (A-32) whereas Violence in Vadodara implicates DD Tuteja, then CP Vadodara, (A-48), Bhagyesh Jha, Collector, Vadodara (A-49). The continuing subversion including intimidating witnesses to turn hostile implicate  Madhu Srivastava, MLA (A-15), a fact admitted in the SIT report. Sudhir Sinha, former CP Vadodara (A-41), Rakesh Ashthana, IG Vadodara (A-34), Deepak Swaroop, IG Vadodara (A-14)

S. Kumaraswami, IGP (A-42) are also directly implicated in the subversion of justice process.

Violence in Bharuch/Forcible Closure of Relief Camps

Anju Sharma, Collector (A-47)

Violence in Sabarkantha

Ranjitsin Chavda, Minister for Cottage Industries (A-6)

Nitraj Solanki, SP Sabarkantha (A-50)

Rajkot

PN Patel, Collector (A-53);  Upendra Singh, SP (A-52)

(Pages 232-233 of the Protest Petition, Volume I)

26. The conspiracy committed by the A1 as head of the Home department included victimizing and punishing those officers and bureaucrats who had functioned legally and reqarding those who actively participated in the criminal act of conspiracy, abetment and other criminal offences. A detailed list of these has been provided to the Court.

27.             Deliberately misleading Statutory Bodies like the NHRC, the Chief Election Commission (CEC) and even Orders of the Supreme Court was and is a continual chain in the crime of conspiracy that continues until today.

28.             Doctoring FIRs, allowing powerful accused to go scot  free. The very fact that SIT had to be appointed for further investigation is proof of the unreliability of the state’s commitment to honestly prosecute heinous offences.

Subversion of Justice Accused Implicated:

Subha Rao, former Chief Secretary (A-27); AK Bhargava, DGP, Gujarat (A-26); GC Raigar, ADGP Int (A-60); VM Parghi, former DCP Ahmedabad (A-54); Tarun Barot, Crime Branch (A-58); KR Kaushik, former CP (A-61)Narendra Amin, DCP (A-59);Amitabh Pathak. Former IG (NOW DECEASED)

29.             Partisan prosecutors with ideological bent towards the RSS/VHP were deliberately appointed to enable easy bail to those accused involved in the post-Godhra killings and to ensure that the guilty are not punished.

30.            Allowing hate speech unchecked :- Allowing hate speech unchecked and unprosecuted was also part of the Conspiracy hatched by A-1. He issued congratulatory letters to those newspapers that had published manipulated reports not based on fact. ADGP Sreekumar had on 16.4.2002 itself recommended the prosecution of hate filled Pamphlets being widely distributed by the Viswa Hindu Parishad (VHP) all over Gujarat that bore their official address and details of publication. Other police officers including SP Bhavnagar Rahul Sharma had strongly recommended the prosecution of Hate Speech. A-1 himself in February, 2002 and right up to September,2002 himself indulged in hate speech. A transcript of the Hate Speech of A-1 made at Becharaji on 9.9.2002 was summoned by the National Commission of Minorities (NCM). ADGP-Int  RB Sreekumar functioning legally had provided a transcript for which he was victimized; first transferred, denied promotion and also charge sheeted. Charkaravarti (A-25) had made an illegal and committed a subversive act by noting directing that a transcript should not be provided. This is clearly an  illegal and subversive act. Substantive arguments on the deleterious impact of hate speech and hate writing at the time of heightened communal tension have been made in the context of mainstream Gujarati newspapers, television and the VHP’s published pamphlets. The National Human Rights Commission (NHRC) had clearly recommended prosecution of offenders. The power to prosecute lies with the Home Department under A-1. The Editor’s Guild report also concurred with the NHRC recommendations.

31.       Illegal Instructions directly issued  by A-1 to senior Officers from April-September 2002. RB Sreekumar’s register maintained to record illegal instructions provides invaluable evidence of the con tinuing criminal mindset of A-1 and his determination to subvert a lawful and constitutional position for illegal ends. Illegal instructions include directions to eliminate persons, tap phones of rivals especially Haren Pandya who had deposed before the Concerned Citizens Tribunal.

Widespread Incidents at Ahmedabad and Violence Continuing until May-June 2002. Ministers of the state cabinet like Bharat Barot were extorting persons in Ahmedabad right until April 2002, PC Pande (A-29) wrote a letter  to Chakravarti (A-25) and the Home department (A-1) and Ashok Narayan (A-28) that politically powerful persons continued to commit criminal and illegal acts the Muslims extorting money and intimidating them. A-1 is questioned in a completely perfunctory manner on this issue by the SIT.

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