Friday, 14 June 2013

2011-03-12 Intervention - Sreekumar


IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Cr.M.P.No.           OF 2011-03-12
 IN
SPECIAL LEAVE PETITION (CRIMINAL) No.1088 OF 2008

IN THE MATTER OF:

Jakia Nasim Ahesan and Others                                       Petitioners
Versus
State of Gujarat                                                             Respondents
AND IN THE MATTER OF:

R.B.Sreekumar
S/o R.Bhaskren Nair
R/o Plot No.193, Sectore-8
Gandhinagar, Gujarat,
APPLICATION ON BEHALF OF THE APPLICANT SEEKING INTERVENTION IN THE PRESENT SPECIAL LEAVE PETITION.
TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUDGES OF THE
HON’BLE SUPREME COURT OF INDIA
HUMBLE PETITION OF THE
APPLICANT ABOVE NAMED

MOST RESPECTFULLY SHOWETH:
1.       The Applicant is a retired Director General of Police and is now a practicing Advocate. Many riot victims meet and share their grievances and agonies of injustice qua the authorities. This intervention being filed as the Applicant has a bona fide belief that he is in possession of certain material which will help this Hon’ble Court arrive at a proper conclusion, in the proceedings before it.

2.       The constitution of the Special Investigation Team (SIT), under the Chairmanship of Shri R.K. Raghavan was directed by an Order dated 26.03.2008 of this Hon’ble Court for reinvestigation of major mass crimes during the 2002 protracted communal riots in Gujarat. Naturally, the same had evoked a great deal of hope, expectation and optimism among victim-survivors of anti minority violence about the delivery of justice to them.

3.       Further, on 27.04.2009, this Hon’ble Court directed the said SIT “to take steps as required in law” on the complaint / FIR filed by  Mrs. Zakia Nasim Ahsan Hussain Jafri, the widow of Mr. Jafri, former Member of Parliament, who was brutally killed by rioters on 28.02.2002 and Citizens for Justice and Peace (CJP) represented by Smt. Teesta Setalwad, against Gujarat State Chief Minister Shri Narendra Modi and 62 others for commission of conspiracy, other  mass crimes and subversion of the Criminal Justice System (CJS).
4.       It is relevant to mention that the Applicant had submitted a report to SIT which contained copies of four Affidavits (Ist to IVth) filed before the Justice Nanavati Commission, containing evidence relevant to re-investigation of 9 major incidents, of mass murder on 9th May 2008. Thereafter the applicant made two other affidavits. However, the Applicant has not been called for any clarification or elucidation relating to the above material by SIT so far.  The Applicant’s statement was also not recorded by the SIT u/s.161 Cr.P.C.  A copy of the said affidavit bearing number I to VI dated ______ is annexed hereto and marked as ANNEXURE P/1 COLLY.

 5.      In the Applicant’s report dated 09.05.2008 he narrated data on the role of certain State Government officers in facilitating the massacre of nearly 100-130 persons from Naroda Patia (Ahmedabad City), largely Muslims, in front of the State Reserve Police Force (SRPF) Group II, Head Quarters entrance gate at Saijpur Bogha.

6.       Though no statement under Sec. 161 was recorded by the SIT, it may however be stated that in July- August 2009, SIT officials recorded the Applicant’s statement in their office as part of the SIT enquiry on Mrs. Jafri’s petition.  The statement was recorded before / by Shri V.V. Chaudhary, Supdt. of Police, State Intelligence Branch (SIB) Gujarat State. 

7.       The major allegations against the accused (the Chief Minister and others) by Mrs. Jafri are 1) Conspiracy and abetment to mass crimes, resulting in killing of her husband and many others, 2) Subversion of the Criminal Justice System (CJS), particularly, by State Police, Executive Magistracy and Prosecution Department for denying justice to the riot victim survivors, through numerous acts of commission and omission and 3) Forcing, tutoring and intimidating  of witnesses to avoid giving proper evidence to the Justice Nanavati Commission, about facts and information adversely affecting the accused persons.

8.       In the aforementioned context, the Applicant is extremely concerned by a report published by the Tehelka Magazine in its issue dated 12/02/2011 purportedly reproducing a report of the SIT wherein it was stated that the Applicant`s evidence was not worthy of any credence. A typed copy of the said article published in Tehelka magazine, Vol-8, Issue 6, dated 12/02/2011 is annexed here and marked as ANNEXURE P/2.
         
The Applicant states that the whole basis of the said report if it is indeed the SIT report is false and wishes to give a point by point rebuttal of the allegation and his reply to the same as follows: Reports in Magazines seem to indicate that the strength and worth of the Applicant`s evidence is being undermined. Valid grounds to counter these baseless, ill-motivated claims and dialectics of the accused are also given below with each of their arguments:

(A)     The accused persons had attempted to undermine the contents of the First Affidavit dated 15.07.2002 and the Second Affidavit dated 06.10.2004 of the Applicant by saying that they do not contain any serious allegations against the accused and so are not useful for substantiating the Jafri complaint.
          SUBMISSION 

A1.     The Applicant’s first and second Affidavits were submitted to the Commission, in compliance with the specific directives by the then DGP Shri K. Chakravarthi, in his official capacity as ADGP (Intelligence), as in-charge of the State Intelligence Bureau (SIB). The DGP order no.G1/A/1909/PE/Godhra/588, dated 18-6-2002 (copy enclosed as Annexure-A to my letter dated 30.03.2010 to the SIT) had insisted on thoroughly scrutinizing records before Affidavits were filed, relating to the terms of reference to the Commission as per Gujarat Govt. notification dated 6-3-2002. DGP had also pressed upon avoidance of any contradiction between the official records and contents of the Affidavits in the above order. The purpose of these Affidavits by the Applicant was to throw light on the action taken by the State IB relating to probe by the Nanavati Commission, as per its terms of reference, covering the period from 27.02.2002 to 31.05.2002 as ADGP Intelligence, being in-charge of SIB.  Information not supported by documents, but of personal knowledge, could not be included, as per DGP’s above orders.  Moreover, the Applicant had taken over as ADGP (Int) on 9.4.2002 only and any data prior to that date can be exclusively from Departmental records available and presented to him only. 

A2.     It may be noted that information about the active role taken by the Sangh Parivar activists in the then on-going anti-minority riots, deliberate bias against victims practiced by the police and prosecution departments etc. were brought out in the Applicant`s reports to the Government and DGP in paras 26, 27 and 28 of his First Affidavit and Appendix 22 to 25 to that Affidavit. Faulty recording of  FIRs by Muslims for favouring Hindu accused, feelings of Muslims that they were left at the mercy of VHP and Bajrang Dal, loss of faith of riot victims in CJS, deliberate clubbing of many offences committed by the Hindus in one FIR, avoiding the arrest of Hindu leaders though their names were figuring in the FIR major offences, reluctance to take Hindu accused on police remand for recovery of looted property, release of Hindu accused in non-bailable cases on account of the partition stand taken by the Govt. Public Prosecutors, over 75% of victims from riots and police firing being drawn from Muslims, VHP and Bajrang Dal activists intimidating merchants and general public from employing members of minority community in various vocations, preventing members of minority community from resumption of their business and even reconstruction of their shops and business establishments destroyed during the riots, circulation of communally inciting pamphlets, Inspectors in-charge of Ahmadabad Police Station ignoring the specific instructions from official hierarchy on account of their getting direct verbal instructions from the senior political leaders of the ruling party  etc. were a few major points covered in the Applicant`s reports.  Specific remedial measures were also suggested.  But the Government, that is the Chief Minister Shri Narendra Modi, the Chief Secretary Shri G. Subbarao, the ACS Home Shri Ashok Narayanan, DGP Shri K. Chakravarti etc. (all cited as accused in the Jafri FIR), who were bound by law to take curative measures on intelligence reports of the SIB did not initiate any action, to improve the situation for the riot victims.  The CM and Home Minister are also responsible for this dereliction of duty as per the letter and spirit of the Rules of Business, in the State Government.

A3.     Strangely none of the State authorities raised any query on the Applicant`s reports, about the ground situation, nor formally questioned the validity and basis of his assessment.  However, the CM had verbally questioned the basis of his assessment (See entry dated 07.05.2002 in the Register, copy of which was attached as Annexure – E of the Applicant`s Third Affidavit). Responding to the Applicant`s presentation, based on facts, in support of contentions in his report dated 24.04.2002 (Appendix-24 of the Applicant`s First Affidavit) the CM had simply disagreed with the Applicant.  But neither did he issue any written directive on the Applicant`s assessment asking for reversing and reworking appraisal of the situation and recommendations nor did he ask for a deeper probe, nor did he do anything to implement the Applicant`s suggestions to correct maladies in the CJS.

A4.     That since the higher State Authorities did not initiate measures to implement the Applicant`s proposals for normalizing the public order scenario, the Applicant submitted a note captioned ‘Action Points’ (Appendix III of his Second Affidavit) to  Shri K.P.S. Gill, former DGP, Punjab and the then Advisor to Gujarat CM. At that juncture the riot-victim survivors were nuturing serious discontentment owing to the denial of justice to them by State authorities in the form of not responding to their complaints properly, with a propensity to join the camp of anti national Islamic extremists.  Therefore the Applicant sent three follow-up reports to the Government, insisting on immediate implementation of his suggested remedial measures, to ACS Home Shri Ashok Narayan (accused No.28) and DGP Shri K. Chakravarthy (accused No.25) on 1) 15.06.2002, 2) 20.08.2002 and 3) 28.08.2002 (See copy of these reports as Appendix 4, 5 and 7 to the Applicant`s Second Affidavit).  In these reports, trends like lack of faith of the Muslims in Ahmedabad City Police, persisting atmosphere of insecurity for the Muslims in the State (killing of 2 Muslims in Vadodara on 4.7.2002 when they came back to reoccupy their houses abandoned by them during riots, by the Hindu militants), non-implementation of most of the recommendations by National Human Rights Commission (NHRC) and National Commission for Minorities (NCM), inadequate security for Muslims to restart their pre-riot business and commerce, problems of over 75000 displaced riot victims etc. and need for solving these issues were highlighted.

A5.     Since the subversion of the CJS resulted in denial of justice to riot victims and manipulative techniques were adopted by police and prosecution, at the ground level, many litigations were filed by aggrieved parties, NGOs, NHRC etc. in the Hon’ble Gujarat High Court and this Hon’ble Court.  Consequently, being aware of the undesirable conditions in Gujarat, the Apex Court had severely criticized the State Administration in the judgment of Criminal Appeal no.446-449, 2004 (Zahira Shaikh V/s. State of Gujarat) thus :-
A6.     “If one cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge.  The investigation appears to be perfunctory and anything but impartial without any definite objective of finding out the truth and bringing to book those who were responsible for the crime.  Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety.  Large number of people had lost their lives.  Whether the accused persons were really assailants or not could have been established by fair and impartial investigation.  The modern day “Neros” were looking elsewhere when Best Bakery and innocent children and women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected.  Law and Justice became flies in the hands of these “wanton boys”.  When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice.  Public order as well as public interest becomes martyrs and monuments”.  The Hon’ble Supre Court also concluded that there was “Ample evidence on record, glaringly demonstrating subversion of justice delivery system with no congeal or conducive atmosphere still prevailing”, i.e. in April , 2004.”
It is axiomatic that if the accused persons implemented the Applicant’s pin-pointed suggestions to contain and control the sabotage of the CJS against the riot victims, through the relevant Govt. functionaries, this Hon’ble Court would not have been prompted to make the above strictures against the State Administration manned by the accused persons.

The Applicant`s assessment about criminal negligence by the accused persons, as in-charge of the State Administration, was further reiterated by the Apex Court in its following decisions. a) Transfer of investigation of Bilkis Banu mass rape case to CBI,  b) Transfer of trial of 2 cases (Bilkis Banu and Best Bakery) to Maharashtra, and c) Ordering reopening and reinvestigation of 2000 odd closed riot related cases (closed by the  State Police for favouring the accused drawn from the Sangh Parivar,  even statutory notice was also not issued to the complainants who filed the FIRs, before closing the cases.  This was an unprecedented move by the Supreme Court, for the first time in the judicial history of India, and d) Appointment of SIT to reinvestigate major genocide cases and to probe Mrs. Jafri’s complaint.

A7.     Even reports by NHRC, National Minority Commission etc. confirmed the Applicant`s assessment about the subversion of the CJS and the failure of Government to take remedial measures.

A8.     Another significant piece of evidence against the accused in the first Affidavit filed by the Applicant was about three proposals send by his office to ACS Home recommending action against the publication of communally provocative materials.  The accused did nothing on these proposals (please see para 36 of the First Affidavit).

A9.     So on what norms of evidence evaluation the SIT can accept the arguments of the accused that the Applicant`s First and Second Affidavits do not contain any incriminating evidence against them? Will not their intentional acts of omission and commission towards non implementation of State IB’s suggestions in his reports to correct maladies in the CJS, which resulted in perpetuation of injustice on  riot victims amount to commission of offences u/s. 186, 187 IPC etc. ? It is in this light that the Applicant urges this Hon’ble Court to kindly consider probing through SIT as to why the accused did not take remedial measures despite four of detailed reports vividly portraying the then prevailing ills in the CJS.

A10.   The Applicant`s reports to ACS Home and DGP on 1) 20.08.2002 and 2) 28.8.2002 were documents confirming and elucidating the main points in his presentation to the Chief Election Commissioner, Shri J.M. Lyngdoh, in a meeting chaired by him on 9.8.2002.  Accepting the Applicant`s assessment on the law and order situation in Gujarat, the Chief Election Commissioner had postponed the election to the State Assembly, upsetting the calculations of the accused No.1 for holding the election prematurely, for getting electoral dividends from the then prevailing communally volatile  situation.  Please see para 16, 20, and 32 of the Election Commission of India’s order dated 16.08.2002.  A copy of the said order is annexed at ____________.

A11.   Further, during the Applicant`s cross examination before the Nanavati Commission on 31.08.2004, on contents of his First Affidavit, he had reiterated the data provided by him in his First Affidavit.  The Applicant had also submitted four Exhibits (documents) to the Commission, which reported the complicity of the accused persons, particularly the Exhibits no.5635 and 5636, regarding his recommendations to DGP and ACS Home requesting for action u/s.153 (a) IPC against the publishers of communally inciting materials. However, the accused persons did not take any action on the Applicant’s proposals and they also did not question him for sending such proposals. It is a clear instance of administrative omission, subverting the CJS in favour of communal groups.  The publishers of these materials were largely drawn from Sangh Parivar.  Is this not another illustrative case of the Applicant`s presenting incriminating material against the accused, many months before his supersession in February, 2005?
(B)   The First Affidavit has certain paragraphs like para 32, 33, 34, 37, and 40 favouring the accused persons .
SUBMISSION:

B1.     As mentioned in the foregoing para no.A-1, as per DGP’s orders only assessment and views based on and supported exclusively by Departmental documents and records the Applicant could submit in his First and Second Affidavits.  In the forwarding letters to these Affidavits the Applicant explained that position. Paragraph no.32, 33, 34, 37 and 40 covered the Godhra incident and the most violent phase of the anti minority blood bath in the period upto 31.03.2002. Further he had taken charge of SIB as ADGP Intelligence only on 9.4.2002. The above mentioned paragraphs, with appreciable words for State Government, are exclusively based on SIB records presented to him and he did not have any personal knowledge or perception about the work of the State Government viz a viz the riots, as he was not incharge of SIB at that time.  The Applicant also had no authority to give his personal views.
B2.     Moreover these paragraphs were drafted in tune with the assessment of Ahmedabad City  situation, in the period soon after the Godhra train fire incident. On specific instructions of  DGP Shri K.Chakravarti the Applicant had to incorporate those paragraphs on Ahmedabad City, in tune with the Affidavit submitted by the then Commissioner of Police, Ahmedabad City,  Shri P.C. Pande, accused no.29.

B3.     In fact the Applicant had prepared the draft of his First Affidavit by the second week of June 2002 and submitted it to DGP, Shri K. Chakravarti.  In that draft para nos. 32, 33, 34, 37 and 40 were not included.  After scrutiny of draft DGP gave the Applicant two verbal instructions i.e. 1) paras basing on records brief appraisal about Godhra incident (Para 32), response of the authorities to it (para 33, 40),  requisition of Central Forces and inadequacy of security forces (para 34, 37) be included and 2)   add paragraphs on Ahmedabad city situation strictly confining to the frame work, spirit and thrust of information provided by Shri P.C. Pande, CP, Ahmedabad City in his Affidavit (paras 37 and 40). Consequently the Applicant had to delay the submission of his First Affidavit upto 15.7.2002 as Shri Pande’s Affidavit    was available only by the last week of June 2002 and it can be seen in the records that Shri Pande submitted his Affidavit on 5.7.2002 only.

B4.     In short it may be understood that para’s 32 , 33, 34, 37 and 40 deal with situation before his taking over the charge of SIB on 9.4.2002.  The position after 9.4.2002 was explicitly delineated in paras 26, 27, 28, 35 and 36 and information in these paras would supersede those in other paras, by sheer logic of chronology.

(C)     The Third Affidavit dated 9.4.2005 and the Fourth Affidavit dated 27.10.2005 contain a lot of information about the culpable role of the accused in, 1) Planning and execution of mass crimes against the minority, and 2)  Subversion of CJS and pressurizing government functionaries to avoid  telling truth to the Nanavati Commission.  But in the view of the accused, these Affidavits have no evidential value as it was submitted after the Applicant`s supersession in February 2005.

SUBMISSION:
C1.     SIT may please note that the victimization of the Applicant by the accused started the day the Central Election Commission accepted his version about law and order situation in the State and postponed the schedule of State Assembly Election as per its order on 16.8.2002.  

C2.     Secondly, on the next day of submission of the verbatim report of the communally inciting speech by Chief Minister Shri Narendra Modi the Applicant was transferred from the post of ADGP Int. Accused no.25 (DGP) first gave written order to the Applicant for a report on CM’s speech.  But simultaneously verbally the DGP asked the Applicant to avoid sending the report. The Applicant requested for written orders, which he had sent with vague wordings after the Applicant`s submission of the verbatim speech. All the relevant documents were submitted to SIT in August 2008.

C3.     Thirdly on 28.9.2004 the Home Department asked the Applicant as to why he had not reported about an enquiry pending against him while he was on Central deputation. As per rules of Government of India, DPAR letter no.5/21/72/AIS/III dated 4.12.1972; the deputationist officer is debarred from reporting such service matters to the State Government.  So this move of the Government was for harassing the Applicant and reverting him to the lower rank.  However, in the enquiry he was exonerated by the Govt.of India.

C4.     Fourthly the Applicant`s explanation was sought on 3.10.2004 by the Home Department for sharing a sensitive intelligence about alleged planting of weapons on Muslims, on the day of Rath yathra (July 2002) in  Ahmedabad City by the City Crime Branch headed by DIG D.G. Vanzara. Please note that the Applicant`s report about illegal planting of weapons on innocent people, to keep up the tempo of anti terrorist drive by Shri Vanzara was the only adverse report about this officer in police records at that time. Shri Vanzara is in Jail since April 2007 for allegedly indulging in extra judicial killings and he is allegedly responsible for many more fake encounters.

C5.     Meanwhile, the Applicant was verbally asked not to submit his second Affidavit, by the DGP Shri A.K. Bhargava, accused no.26, though there were two written orders by the same DGP directing all officers, who submitted the first affidavit to submit their second affidavits, covering the additional terms of reference to the Commission dated 27.7.2004.  Disregarding the above contradictory verbal order of DGP the Applicant filed his Second Affidavit to the Commission on 6.10.2004, by complying with the written orders to do so.  Therefore, it may be seen that the Applicant`s supersession in February, 2005 was the culmination of many acts of unwarranted ill will against him by the accused, since he did not oblige the accused by 1) telling lies to the Nanavati Commission during his cross examination on 31/8.2004 and 2) avoiding filing of his Second Affidavit.  The Applicant herein thought it is his duty to bring to the notice of the Commission about the persecution undergone by him for speaking the truth.  Material in his Third Affidavit was submitted to the Commission as proof of his harassment and all those data refer to facts, inputs, events etc. prior to the date of his supersession. 

C6.     The Applicant had reported to the State Govt. that he was in possession of incriminating material against the accused and he would be pushed to the predicament of presenting these to the Judiciary, in case the State Government continued to harass him, on 3rd November, 2004, that is three and half months before his supersession (See Annexure C and D of the applicant`s Third Affidavit).

C7.     The State Government could have charged the Applicant with perjury, in case the information in his Affidavits was baseless.   The Government did not do that because materials presented by him were truthful.

C8.     The Third Affidavit was filed on his own initiative to bring to the notice of the Nanavati Commission about the harassment perpetrated on him by the accused, as mentioned in the forwarding letter of the Affidavit.  Though he sought remedial action from the Commission, no action was taken and hence the govt. issued a charge-sheet to the Applicant for dismissing him from service.  He also wanted to inform the Commission that the accused was trying to starve the Commission of information and also moving for stopping and censoring the flow of information from witnesses summoned by the Commission.  

D)      The acts of intimidation and illegal tutoring resorted to by Shri G.C. Murmu IAS, Secretary, Home Department and Shri Arvind Pandya the Govt. pleader to the Nanavati Commission, to influence the Applicant were quite  legal and legitimate actions by these people to just brief him that there was no offence or impropriety committed by them.

SUBMISSION:
D1.    The illegal actions  of the accused to prevent the applicant from telling truth to the Commission, as per the legal obligation, being a government servant to act according to the letter and sprit of the terms of reference to the Commission issued by the State Government, were delineated in the applicant`s Third and Fourth Affidavits. There is  unchallengeable evidence against Shri Dinesh Kapadia, Under Secretary, Home Department, G.C. Murmu, Secretary, Home and Shri Arvind Pandya, Govt. Pleader to the Nanavati Commission, for cajoling and intimidating the Applicant to suppress telling of truth to the Commission. The Home Department is the supervisory department of all police officers, having full disciplinary authority over them. Here lies the element of coercion to the Applicant by these officials.The verbatim versions of the tutoring along with CD was presented to SIT.  Moreover Shri Murmu had accepted about his act of tutoring in a statement, which was provided to the Applicant with the charge-sheet by the Home Department.
D2.    The Applicant is apprehensive that SIT is viewing the illegal actions of Shri Murmu and others as mere briefing of a subordinate officer by the Home Department, for helping him to marshal evidence to the Commission. In this respect the Applicant humbly appeal to the SIT for going to the following aspects / questions about series of  endeavors by the accused to persuade, cajole, tutor and intimidate the Applicant before his cross examination by the Nanavati Commission on 31.8.2004.
(a)     Why did the accused send senior police officers (2 ADsGP – Shri Deepak Swaroop and Shri J. Mahapatra) to persuade  the Applicant to speak in favour of the accused before the Commission?

(b)     It is absurd to accept that the Applicant wanted a briefing from Shri Kapadia, a junior civilian officer, with no experience in investigation and deposition in judicial bodies, on 21st August, 2004 and so the officer came and cajoled the Applicant in his chamber for 2 hours, to speak in favour of the accused?

(c)     An analysis of the conversation between the Applicant and Kapadia will throw light on the conclusion?
(d)     Should the advice by Kapadia to the Applicant that “the truth need not be told to the Commission” (Page 8 of Annexure – A of the Applicant`s Third Affidavit), be treated as part of briefing and not as deliberate act to obstruct him from discharge of legal duties by an officer from the supervisory department?

(e)     Did the warning to the Applicant by Kapadia that ‘You are harming yourself’ (by telling truth to the Commission – page 9) not amounting to an indirect threat from the Home Department official?

(f)      It is assured to consider that tutoring the Applicant by Kapadia with directives that viz “the Commission is not going to serve any purpose” (page No.9),“no purpose will be served by telling truth before the Commission” (page No.12), “be little bit cautious, just to ensure that you are totally objective, to prevent any harm, which is likely to be done by the government, because of the deposition” (page no.16), “these Commissions are paper tigers” (Page 16) etc    not part of deviant acts by the accused to obstruct a public servant from performing his lawful duties.

(g)     Did not the whole exercise by Kapadia form part of the accused’s efforts to subvert the CJS against the constitutional values?

D3.    Dinesh Kapadia reported about his failure to cajole the Applicant to speak infavour of the accused in the Commission on 31.08.2004 and so Shri G.C. Murmu and Arvind Pandya summoned the Applicant for tutoring him about information to be presented to the Commission. The meeting was clandestine as it was held in a private guest house in Paldi, Ahmedabad City, instead of holding it in Home Department located in Gandhinagar. The Applicant had to attend this tutoring session, being convened by an officer junior to the Applicant by protocol, on DGP Shri A.K. Bhargava’s verbal orders.  The whole procedure and details of interaction of the meeting were narrated in the Annexure – B of the Third Affidavit and the CD disc of the same filed by the Applicant which was submitted to SIT.

D4.    In this light, it is improper to accept the accused’s version about this meeting as a briefing session.  Any cursory reading of the verbatim version of the tutoring by Murmu will reveal the ingredients of intimidation, abetment to commission of perjury, communal prejudice etc. There were clear threatening utterances by Shri Arvind Pandya, with the approval of Shri Murmu.  Illustrative instances are the following:
(a)     It is therefore wrong to find the direction and objective of the instructions by Murmu and Pandya go against the government notifications on the terms of reference to the Commission dated 6.3.2002 and 27.7.2004 and were illegal ?

(b)     It is trite to say that the duty of every government servant to act as per the requirements of the government notifications.

(c)     Is not the unauthorized directive by Murmu and Pandya to the applicant to avoid giving long answers, resulting in more questions amounting to obstructing the Applicant from performing his duties u/s.186 IPC? (Please see page 6 of)

(d)     Is not the advice of Murmu and Pandya to the Applicant to accept conspiracy theory about Godhra train fire incident an act of abetment to perjury ? (Page No. 9 and 13)

(e)     Is not Murmu’s direction to the Applicant to avoid speaking about the follow up action by the government on the Applicant`s 24th April report, an act of abetment to perjury ? (Page No.11-12) Similar instruction was given by Shri Pandya to him (Page No.14)

(f)      Is not the direction of Pandya to devalue the intelligence report in the Applicant`s deposition illegal ? (Page No.16)

(g)     Under the circumstances, Shri Pandya’s intimidating words to the Applicant with the approval of Shri Murmu “You are my witness.  Am I permitted to cross-examination my own witness ? If you create circumstances, I give application that I want to cross examine you, then giving contrary opinion to the Govt. by you and in those circumstances if I obtained permission from the Court, you are hostile to me and false nature. I will cross examine and then notice will be issued by Govt. to you regarding integrity and everything.  In sum I can not cross examine my witness.” (Page 17)  constitute an offence u/s. 506 and 186 IPC ?

(h)     Do not Pandya’s  words that we are briefing “every witness” (Page 18), falsify the claim of Murmu in his statement (with my chargesheet) that the Applicant wanted a briefing from him ?

(i)      Does not Pandya’s confession that he would not speak 10% of information (Page No.22) an act of violation of government orders about assisting the Commission ?
(j)      As the govt. pleader, who was paid for assisting the Commission in fulfilling the requirements of its terms of preference, is it not Shri Pandya’s duty to endeavour for getting all information for the Commission ?

(k)     Will not the hint of Shri Murmu to call former ACS Shri Ashok Narayan, the then senior most IAS officer, for tutoring (Page 23) falsify his claim about the Applicant`s request for  briefing, from Sh. Murmu before the Applicant`s deposition to the Commission?  Tutoring of all witnesses are done as part of an illegal drill.

(l)      Is it not obvious that assess that the whole episode of tutoring and intimidation by Murmu and Pandya perpetrated on the applicant constitute offences u/s 193 r/w section 116, 186, 153A and 506 IPC?

(m)    Clearly the admission of Pandya in Tehelka magazine sting operation reported in its issue dated 4.11.2007 (Vol.IV  issue 43) about his threatening the Applicant  was not considered.

D5.    Since there is substantial evidence about the crimes by Murmu and Pandya, which was part of the State Government’s efforts to subvert the CJS, the accused are quite keen on invalidating this evidence.

(E)     Information regarding illegal orders narrated in “the Register for recording verbal instructions from higher officers viz. z viz DGP and above” (Please see Annexure – F of the Applicant’s Third Affidavit.) have no creditability and reliability as no other person has corroborated each of the incriminating entry.

SUBMISSION:
E1.     SIT is known to be inclined to accept the above contention of the accused.  The SIT was humbly requested by the Applicant to kindly take note of the following before a final decision is taken in this matter.

E2.     Firstly the Register and its contents do contain and confirm ingredients prescribed u/s 35 of the Indian Evidence Act, of being 1) public record and 2) made in the discharge / performance of the Applicant`s official duty.

E3.     The Register was supplied by Shri O.P.Mathur, IPS, the then IGP (Admn. & Security) in the office of the ADGP Int. He was the second in command of the Applicant`s office, while the Applicant was ADGP Int. from 9.4.2002 to17.9.2002.  The Register has endorsement written by Shri Mathur in his own handwriting certifying the number of pages.. No private or personal register requires any endorsement / certificate from a senior officer, in charge of the administration, in his official capacity.  So this fact should establish the age of the paper and the time of entries made in the Register.  Through tools of forensic science also the age of writing can be established. Such probes will prove that the entries were made at the relevant time and certainly not after the supersession of the Applicant in February 2005. 

E4.     It may be noted that no minutes were prepared and circulated about the meetings and sessions of discussion convened by the DGP to the CM.  Had there been minutes SIT could have probed further.

E5.     Since no minutes were prepared about the deliberations and decisions taken in the meetings, the Applicant had no other means to document the gist of discussions, than by maintaining an official register.

E6.     All materials in the Register are fully relevant to the charter of duties of the ADGP Int. viz. the Applicant and police department as per the provisions of the Indian Police Acts , Gujarat Police Manual, numerous DGP Circulars and other  periodical instructions from the State and the Central Govts.

E7.     All references to the discussion on  events, persons, developing situations, and law and order strategy, tactics and ground level methodology are made by the “public servant” and so are “relevant facts” as per section 35 of the Indian Evidence Act. 

E8.     A scrutiny of the Applicant`s Affidavits would prove that he had fully made use of the materials in the Register, particularly regarding the anti minority prejudice of the State Administration.

E9.     Generally a study of press reports in the corresponding period /dates of the entries in the Applicant`s Register, will establish the truth behind these entries, since those media projections would bring out the chain of circumstances and ambience behind many illegal and unethical instructions given to the Applicant. 

E10.   The Applicant humbly submits that mere rejection of the virtue, integrity and truthfulness   of the entries in his Register on the superfluous ground of non-corroboration by others (mostly people who are accused in the Jafri complaint) will be inexcusably gratuitous. The applicant is optimistic that SIT will not opt for such a course of unwarranted action.  Therefore SIT was requested to  probe for getting corroboration of entries in his Register as proposed below.

a)   Entry dated 16.04.2002 the Register – The CM’s observation about Congress leaders viz. Shankarsinh Waghela about their role in communal riots was in the press reports of those days. Police follow-up action on arrest of history – sheeters as per the CM’s instruction can be proved from police records.  Since the above 2 entries can be proved by supporting evidence, the entry regarding illegal instruction to tap Shri S. Waghela’s phone can be inferred / presumed to be correct.

b)  Entry dated 17.04.2002 and 30.04.2002 -  Please note that as per police records nobody was arrested for the exclusive offence of obstructing examinations in schools and colleges.

c)  Entry dated 18.04.2002 -  The Central IB Joint Director, Rajendrakumar’s illegal objectionable moves in support of CM’s political strategy may be seen in the Applicant`s Fourth and Fifth Affidavits.
d)  Entry dated 22.04.2002 – The Chief Secretary, Shri G.Subbarao’s posture against the arrest of Hindu leaders is endorsed by the fact that only after the intervention of the Apex Court and appointment of SIT, senior Hindu leaders like Mayaben Kodnani, Ex-Minister, Jaideep Patel (VHP leader) etc. were arrested.  Numerous court decisions condemning inaction by Gujarat Administration is additional evidence (Please see aforesaid para no.8A sub para 7.

e)  Entry dated 01.05.2002 and 28.06.2002  - The Chief Secretary’s instructions for carrying out extra judicial killings and the Applicant`s refusal to implement the same can be proved by the fact that fake encounter killings (largely Muslims were victims), started after his transfer from the post of ADGP Int. on 17.09.2002.  That ADGP Int. has inherent powers, by virtue of his office, to probe into all custodial deaths and extra judicial killings suo motu and sent reports to the government. So the police officers like DIG Shri D.G. Vanzara avoided such misadventures, during the Applicant`s tenure as ADGP Intelligence . Moreover the Applicant had written about Shri Vanjara’s illegal act of falsely planting weapons on Muslims on the day of Ahmedabad Rath Yatra in July 2002 vide his d.o. letter no. G/1/AFA/584/12 dated 05.07.2002 to the then CP Ahmedabad City Shri K.R. Kaushik. That the fake encounter killings had stopped only after the arrest of DIG Shri Vanzara and others in April 2007. The applicant was harassed with memos by the accused for reporting against Vanjara, with a view to serve a charge sheet on the Applicant.

f)    Entry dated 07.05.2002 – Corroboration on the CM’s observation about natural and uncontrollable reaction by the Hindu mobs, soon after the Godhra fire incident, can be seen in the media reports and telecasts.

g)   Entry dated 08.05.2002 and 10.05.2002- There is sufficient evidence about the forcible closure of relief camps of riot victims (mostly Muslims) in the reports of NHRC, Central Election Commission etc.


h)   Entry dated 05.08.2002, 06.08.2002, 08.08.2002 and 09.08.2002 – Statistics about incidents of communal violence were manipulated by State Government (the accused), to project a picture of normalcy in the state, to ensure holding of early Assembly Election.  The Applicant`s presentation to the Central Election Commission on 09.08.2002 and his reports to the DGP and ACS Home dated 20.08.2002 and 28.8.2002 (Appended in the Second Affidavit) had falsified the State Government’s assessment reports. ACS Shri Ashok Narayan’s instructions to the Applicant to trivialize the extent and intensity of 2002 communal violence in the state is reflected in his letter to the Applicant dated 09.09.2002 which is appended as Appendix – VI in the Second Affidavit.

i)     Entry dated 10.09.2002, 11-9-2002 and 12.09.2002 –  Two copies of letter from National Commission for Minorities with endorsement of DGP and others were submitted to SIT by the Applicant in August 2008.  These will easily prove the duplicity of the accused persons, for hiding the communal nature of the CM speech from public knowledge.


j)    Entry dated 15.09.2002 – There were press reports about ACS Home Shri Ashok Narayan informing the media that the Govt. did not have details of CM’s speech.

k)   Entry dated 19.09.2002 – The Chief Secretary’s illegal instruction that the Applicant should not have spoken against government policy in the Chief Election Commissioner’s meeting, even in violation of the provisions of the Constitution, is proved by voluminous evidence about subversion of the CJS by the Modi government , during after 2002 communal bloodbath.  Can there be any government policies against the letter and spirit   of the Constitution of India ?

E11.   The evidence in the Register should not merely be evaluated by the application of the principal of corroboration by greater number of people. Can investigation be a number game?  In investigation of crimes even entries in the diaries kept by criminals are also treated as relevant and useful.  The case of Jain diary in the famous Jain hawala case is an illustrative instance.

E12.   The Applicant`s supersession in February 2005 was adjudged as illegal by the Division Bench of Central Administrative Tribunal (CAT) Ahmedabad in February, 2007.  Later the Gujarat High Court had endorsed this CAT Judgement, in the Applicant`s favour.  This judicial verdict will also justify the submission of the Applicant`s Third Affidavit and its Annexures like the Register and other documents. 

E13.   Please note that in the 9 points charge sheet issued to the Applicant by the government on 6.9.2005, the truthfulness of entries in the Register was not challenged. If the contents were false the State Government could have charged the Applicant with perjury. The CAT Ahmedabad had quashed all 9 charges issued against the Applicant unconditionally vide its judgment no.OA/166/2006 dated 28.09.2007. This will also justify the grounds of submission of the applicant’s Third and Fourth Affidavits.

E14.   The Fourth Affidavit was submitted to the Commission by the Applicant to bring to its notice the contents of the charge sheet and the Applicant`s defence in this matter, as these were relevant to the terms of reference to the Commission.  The Applicant was apprehensive of such an unwarranted action by the State Government and had mentioned this in his Third Affidavit and had requested the Commission to take necessary action.  But the Commission did nothing and so the charge sheet and his predicament   for seeking justice from CAT.  Thus please note that the Applicant’s Third and Fourth Affidavits were for seeking justice and not for marshaling evidence against the accused.  It was the victim survivors like Mrs.Jafri and NGOs led by human rights activists  like Smt. Teesta Setalwad had made use of the Applicant`s Affidavits and related documents in support of their petitions. So it will be quite injurious to the Applicant`s reputation, image and credibility, if SIT takes the view that his Affidavits were made for merely damaging the accused and making allegations against them and not for revealing the truth.

E15.   Damaging information affecting the accused, relating to the Applicant’s interaction with DGP Shri Chakravarti and Central IB Joint Director Shri Rajendra Kumar were included in his Fourth Affidavit because the State Government had cited them as witnesses to prove the charge sheet against the Applicant. The relevant data stigmatizing the accused was known to the Applicant even at the time of filing of his Third Affidavit, but as this was not relevant at that time, to uncover his conversation and dealings with DGP and JD IB, at that juncture, it was not revealed at that time. Because it may be irrelevant and be construed as the Applicant’s  over enthusiasm to damage the image of the accused, and not redressal of his grievances.  This should also convince the SIT that purpose of the Applicant`s Third Affidavit was not for impeaching or charging the accused persons by loading it with all incriminating information against them.

E16.   The Applicant had submitted to the Nanavati Commission his letter to SIT No.RBS/SIT/309C/2010 dated 9.4.2010 as the Applicant`s  Fifth Affidavit and another letter to SIT No.RBS/SIT/318C/2010 dated 01.09.2010 as his Sixth Affidavit to the Commission. As the Applicant’s Fifth and Sixth Affidavits, these letters contain specific suggestions to the SIT, (1). to collect evidence from U.P Police, who accommopanied Ram Bhaktas, the victims of Godhra Train fire on 27.02.2002, on their return journey to Gujarat from Ayodhya. (2) to get Central IB`s report basing on its Gujarat Unit’s source reports from the persons who were deputed to accompany Ram Bhaktas from Gujarat by IB, and (3). Scrutiny of records of army and Central Para Military Units who assisted Gujarat Police during initial days of 2002 Gujarat riots. Information regarding officials who were favored (24 persons) for collaborating with the accused in the riots, 13 officials punished for discharging their duties, as per their statutory obligation, was also provided in the Applicant’s 6th Affidavit and both the Fifth and Sixth Affidavits were submitted to the SIT.    
P R A Y E R
In view of facts and circumstances, stated hereinabove, it is, most respectfully prayed that this Hon’ble Court may graciously be pleased to:-
1.    Allow the applicants to intervene in the present Special Leave Petition; and

2.    Direct SIT to probe into the allegation made by the Applicant relating to Mrs. Jafri`s complaint and other riot related cases.


3.    Pass any such of further order(s) that this Hon’ble Court deems fit in the facts and circumstances of the present case;
FILED BY:

N.GANPATHY
ADVOCATE FOR THE APPLICANTS
FILED ON:12.03..2011


IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Cr.M.P.No.           OF 2011-03-12
 IN
SPECIAL LEAVE PETITION (CRIMINAL) No.1088 OF 2008

IN THE MATTER OF:

Jakia Nasim Ahesan and Others                                       Petitioners
Versus
State of Gujarat                                                             Respondents
AND IN THE MATTER OF:

R.B.Sreekumar
S/o R.Bhaskren Nair
R/o Plot No.193, Sectore-8
Gandhinagar, Gujarat,
APPLICATION ON BEHALF OF THE APPLICANT SEEKING INTERVENTION IN THE PRESENT SPECIAL LEAVE PETITION.


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