Holding

The SIT's investigation was thorough and the allegations of a larger criminal conspiracy at the highest level were not substantiated; therefore, the closure report was rightly accepted by the Magistrate and upheld by the High Court.

Summary

The case arises from the 2002 Gujarat riots following the Godhra train burning incident, in which the appellant's husband was killed in the Gulberg Society massacre. The appellant filed a complaint alleging a larger criminal conspiracy at the highest level of the state government, including the then Chief Minister, to cause mass violence against the minority community. The Supreme Court-appointed Special Investigation Team (SIT) investigated the complaint and submitted a final report recommending closure, finding the allegations baseless, particularly the claims of witnesses Sanjiv Bhatt and Haren Pandya about a meeting where the Chief Minister allegedly instructed police to allow violence. The SIT concluded that there was no material to establish a meeting of minds for a criminal conspiracy, and that the state administration had taken timely corrective measures. The Magistrate accepted the closure report, and the High Court upheld that decision. The Supreme Court dismissed the appeal, holding that the SIT's investigation was thorough and the allegations of larger conspiracy were not substantiated.

Issues considered

Whether the SIT properly investigated the appellant's complaint regarding a larger criminal conspiracy at the highest level?
Whether the Magistrate and the High Court correctly accepted the SIT's closure report?
Whether there was sufficient material to proceed against the named offenders for the offence of criminal conspiracy?
Whether further investigation was warranted in light of the protest petition?

Legislation cited

Commission of Inquiry Act, 1952s. 6
Constitution of Indias. 356
Gujarat Police Act, 1951
Human Rights Act, 1991
Indian Penal Code, 1860s. 114, s. 120B, s. 153A, s. 185, s. 186, s. 187, s. 193, s. 302

Subjects

criminal conspiracyGujarat riotsGodhra incidentSIT investigationclosure reportprotest petitionlarger conspiracystate-sponsored violencebreakdown of law and orderArticle 356Penal Code 1860Section 120BSection 302Section 153ACommission of Inquiry ActGujarat Police ActHuman Rights Act

Judgment

[2022] 6 S.C.R. 1 1

ZAKIA AHSAN JAFRI A
v.
STATE OF GUJARAT & ANR.
(Criminal Appeal No. 912 of 2022)
JUNE 24, 2022 B
[A. M. KHANWILKAR, DINESH MAHESHWARI AND
C. T. RAVIKUMAR, JJ.]
Gujarat Riots – Godhra incident of 27.2.2002, in which large
number of Kar-sevaks, returning from Ayodhya, were burnt alive in
C
train bogies – As aftermath of that incident, there was unrest and
violence all across the State of Gujarat – A violent mob attacked
the inhabitants of one Gulberg Society, killing 69 persons including
the husband of appellant – Complaint dated 8.6.2006 of appellant
to Director General of Police, Gujarat and other high officials inter
alia containing allegations of “larger conspiracy at the highest level” D
which resulted into causing mass violence across the State during
the relevant period – Such allegations founded on the alleged
utterances made by the then Chief Minister while addressing the
DGP, the then Chief Secretary and other senior officials of the State
– Towards this, reference made to meeting held on 27.2.2002 evening
E
in Gandhinagar, as testified in the affidavit of Mr. R.B. Sreekumar,
the then Additional Director General of Police (Intelligence) –
Reliance placed on report of a private panel of former Judges of
Supreme Court titled “Concerned Citizens Tribunal” which referred
to testimony before them of late Mr. Haren Pandya, former Minister
– Additionally, reliance placed on testimony of Mr. Sanjiv Bhatt, F
the then Superintendent of Police (Security), who claimed to have
attended the meeting convened by the then Chief Minister on
27.2.2002 – Held: The testimony of Mr. Sanjiv Bhatt, Mr. Haren
Pandya and also of Mr. R.B. Sreekumar was only to sensationalize
and politicize the matters in issue, although, replete with falsehood
G
– There was a coalesced effort of the disgruntled officials of the
State of Gujarat alongwith others to create sensation by making
revelations which were false to their own knowledge – The falsity
of their claims had been fully exposed by the SIT (appointed by
Supreme Court) after a thorough investigation – To make out a case
of larger criminal conspiracy, it is essential to establish a link H
1
2 SUPREME COURT REPORTS [2022] 6 S.C.R.

A indicative of meeting of minds of the concerned persons for
commission of the crime(s), committed during the relevant period
across the State – No such link is forthcoming, much less had been
unraveled and established in any of the nine cases investigated by
the same SIT under the directions of Supreme Court – In light of the
timely corrective measures taken by the State Government in right
B
earnest and repeated public assurances given by the then Chief
Minister that guilty will be punished for their crime(s), and to
maintain peace, it would be beyond comprehension of any person
of ordinary prudence to bear suspicion about the meeting of minds
of named offenders and hatching of conspiracy by the State at the
C highest level, as alleged, much less grave or strong suspicion as
being the quintessence for sending the accused for trial for an
offence of criminal conspiracy – Breakdown of law-and-order
situation if for short duration, cannot partake the colour of
breakdown of rule of law or constitutional crisis – No fault found
with the approach of the SIT in submitting final report for discarding
D
the allegations regarding larger criminal conspiracy (at the highest
level) for causing and precipitating mass violence across the State
during the relevant period – Decision of the Magistrate in accepting
the final report submitted by the SIT, is upheld as it is and the protest
petition filed by the appellant is rejected – Submission of appellant
E regarding infraction of rule of law in the matter of investigation
and the approach of the Magistrate and the High Court in dealing
with the final report, cannot be countenanced – Penal Code, 1860
– s.302 r/w s.120B, s.193 r/w s.114 and ss.185, 153A, 186 and 187
– Commission of Inquiry Act, 1952 – s.6 – Gujarat Police Act, 1951
– Human Rights Act, 1991.
F
Constitution of India, 1950 – Art. 356 – Failure of
Constitutional machinery – Breakdown of law and order – When
made out – Held: Mis-governance or failure to maintain law-and-
order during a brief period may not be a case of failure of
constitutional machinery in the context of tenets embodied in Art.356
G – There must be credible evidence regarding State sponsored
breakdown of law-and-order situation; not spontaneous or isolated
instances or events of failure of State administration to control the
situation.
Gujarat Riots – Allegations of criminal conspiracy on the
H part of the State authorities – Forwarding of messages by the
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 3

intelligence agencies including inaction or lack of effective measures A
taken by the concerned officials – Effect of – Held: It does not per
se imply criminal conspiracy on the part of the State authorities –
Inaction of the duty holders to take those messages (of intelligence
agencies) to its logical end, cannot be regarded as act of criminal
conspiracy unless there is material to provide link regarding the
B
meeting of minds and deliberate act to effectuate a plan to spread
mass violence across the State.
Gujarat Riots – Allegations of criminal conspiracy on the
part of the State authorities – Inaction or failure of some officials
of one section of the State administration – Held: Cannot be the
basis to infer a pre-planned criminal conspiracy by the authorities C
of the State Government or to term it as a State sponsored crime
(violence).
Dismissing the appeal, the Court
HELD:1.1. The allegations made in the complaint of D
appellant relating larger criminal conspiracy at the highest level
have been duly enquired into by the SIT appointed by the Supreme
Court. The SIT considered the relevant materials to conclude
that the claim of concerned persons is false and figment of
imagination. For that, the SIT had recorded statements of all those
officials who were present in the said meeting. They stated in E
one voice that Mr. Sanjiv Bhatt was not present in the review
meeting convened under the Chairmanship of the then Chief
Minister. The SIT had also collected relevant documentary
evidence to establish the falsity of the claim of Mr. Sanjiv Bhatt
of being present in that meeting. [Para 25][137-A-C] F
1.2. It is, thus, not a case of one version against the other,
but of false claim set up by Mr. Sanjiv Bhatt of being personally
present in the stated meeting. Therefore, the SIT after thorough
investigation has recorded its opinion that neither Mr. Sanjiv Bhatt
nor Mr. Haren Pandya was present in the stated meeting. G
Similarly, even Mr. R.B. Sreekumar had no personal knowledge
as he did not attend the said meeting. Besides, Mr. R.B.
Sreekumar was a disgruntled officer. The SIT recorded the
statements of the concerned officials and after analyzing the same,

H
4 SUPREME COURT REPORTS [2022] 6 S.C.R.

A opined that all the officials who were present in the stated meeting
had said in one voice that Mr. Sanjiv Bhatt, the then DCI (Security)
was not present in that meeting. The SIT then analyzed the claim
of Mr. Sanjiv Bhatt that he was present in the meeting by referring
to official records including the call records of his mobile phone
No. 9825049398 to conclude that he had set up a false plea of
B
being present in the stated meeting. The SIT has adverted to
the materials collected during investigation clearly reflecting on
the conduct of Mr. Sanjiv Bhatt including his false claim of being
present in the stated meeting. The final report of the SIT has
analyzed these aspects in detail. [Paras 26, 27][137-C-D; 138-B-
C E]
1.3. There is force in the argument of the respondent-State
that the testimony of Mr. Sanjiv Bhatt, Mr. Haren Pandya and
also of Mr. R.B. Sreekumar was only to sensationalize and
politicize the matters in issue, although, replete with falsehood.
D For, persons not privy to the stated meeting, where utterances
were allegedly made by the then Chief Minister, falsely claimed
themselves to be eye-witnesses and after thorough investigation
by the SIT, it has become clear that their claim of being present
in the meeting was itself false to their knowledge. On such false
E claim, the structure of larger criminal conspiracy at the highest
level has been erected. The same stands collapsed like a house
of cards, aftermath thorough investigation by the SIT. [Para
34][157-F-G; 158-A-B]
1.4. It is only because of the ultra-sensational revelation
F projected by Mr. Sanjiv Bhatt and Mr. Haren Pandya, who
unabashedly claimed to be privy to the utterances made by the
then Chief Minister in an official meeting, the constitutional
functionaries and this Court was required to move into action
taking serious note of the same. But, after thorough investigation
by the SIT, the falsity of such claim has been fully exposed on the
G basis of credible indisputable materials collated by the SIT during
the investigation in that regard. Besides exposing the falsity of
the claims of these two persons, the SIT has been able to collate
materials indicative of the amount of hard work and planning of
the concerned State functionaries in their attempt to control the
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 5

spontaneous evolving situation of mass violence across the State A
of Gujarat, despite the handicap of administration including the
inadequate State police force required to be replenished with
central forces/Army, which were called without loss of time and
the repeated appeals made by the then Chief Minister publicly
to maintain peace. [Paras 35, 36][158-B-E]
B
2.1. It is seen that the allegation of larger criminal
conspiracy at the highest level spelt out in the complaint and
protest petition, was in reference to the sensational revelation
made by Mr. Sanjeev Bhatt and Mr. Haren Pandya, the falsity
whereof has been exposed by the SIT. As a result, now the C
appellant is pursuing the same allegation by relying on so-called
undisputed extra-judicial confessions recorded in Tehelka tapes
on the specious plea that there can be no direct evidence
regarding larger conspiracy. [Para 38][159-A-B]
2.2. To make out a case of larger criminal conspiracy, it is D
essential to establish a link indicative of meeting of minds of the
concerned persons for commission of the crime(s), committed
during the relevant period across the State including the heart-
rending episode unfolded at Godhra on 27.2.2002, in which large
number of Kar-sevaks were burnt alive in train bogies. No such
link is forthcoming, much less had been unraveled and established E
in any of the nine (9) cases investigated by the same SIT under
the directions of this Court. Accepting the argument of the
appellant would require questioning the wisdom of this Court
and to hold that even the incident at Godhra unfolded on 27.2.2002
was also the outcome of alleged larger criminal conspiracy. Such F
a view would be preposterous. [Para 39][159-D-F]
3.1. The Godhra incident has been fully enquired into by
the SIT to the satisfaction of this Court and even the trial had
ended in recording conviction against the concerned accused
(belonging to minority community). As to how the Godhra incident G
unfolded, has been analyzed by the High Court in confirmation
appeals in Godhra train case about the acts of planning and
commission by a group of persons. [Para 40][159-G-H]

H
6 SUPREME COURT REPORTS [2022] 6 S.C.R.

A 3.2. Forwarding of messages by the intelligence agencies
including inaction or lack of effective measures taken by the
concerned officials per se does not imply criminal conspiracy on
the part of the State authorities. Absent tangible material
suggestive of a chain or any perceivable link or connection with
the unfolding of mass violence across the State, it is unfathomable
B
as to how the SIT could have still recommended sending the
alleged offenders for trial, much less would obligate the concerned
Court to take cognizance on such unfounded allegations. There
is no material forthcoming to indicate that there was failure on
the part of intelligence to collect information and it was a deliberate
C act on the part of the State Government authorities. Whereas,
the allegation is that intelligence inputs were collected and
disseminated to concerned authorities, but not acted upon by
the concerned officials in right earnest. [Para 40][159-H; 160-A-
C]
D 3.3. Inaction of the duty holders to take those messages to
its logical end, cannot be regarded as act of criminal conspiracy
unless there is material to provide link regarding the meeting of
minds and deliberate act to effectuate a plan to spread mass
violence across the State. The SIT had recorded statement of
Mr. Ashok Narayan, the then ACS (Home), Gujarat, dated
E 12.12.2009. This version belies the claim of the appellant including
the unfounded allegation of criminal conspiracy at the highest
level for causing mass violence across the State. The materials
gathered by the SIT on the other hand, would suggest that despite
the corrective measures taken by the concerned officials in right
F earnest, the situation evolved in unpredictable and sporadic
manner and the expanse of the activities were such that the State
administration was completely overrun. [Para 41][160-D; 161-E]
3.4. The SIT had not found any conspiracy for linking the
separate incidents of mass violence across the State during the
G investigation of nine (9) separate crimes including the Godhra
train incident, dealt with by the SIT under the strict vigil and
supervision of this Court and with the Amicus Curiae playing the
role of devil’s advocate. Whereas, the messages generated by
SIB from time to time even before 27.2.2002, in fact would go to

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 7

show that the concerned officials were vigilant, but the situation A
as evolved post Godhra incident, was unparalleled and had
overrun the State administration. [Para 42][161-F-G]
4. In any case, inaction or failure of some officials of one
section of the State administration cannot be the basis to infer a
pre-planned criminal conspiracy by the authorities of the State B
Government or to term it as a State sponsored crime (violence)
against the minority community. The SIT had noted that inaction
and negligence of the erring officials has been taken note of at
the appropriate level including by initiating departmental action
against them. Such inaction or negligence cannot pass the muster
of hatching of a criminal conspiracy, for which the degree of C
participation in the planning of commission of an offence of this
magnitude must come to the fore in some way. [Para 43][161-H;
162-A-B]
5. Conspiracy cannot be readily inferred merely on the basis
of the inaction or failure of the State administration. In the enquiry D
undertaken by the SIT, it had been found that the developments
were in quick succession and had overrun the arrangements
already in place or for that matter, additional support by calling
Army on 28.2.2002 itself besides the curfew imposed in the most
disturbed areas of the State. In light of such timely corrective E
measures taken by the State Government in right earnest and
repeated public assurances given by the then Chief Minister that
guilty will be punished for their crime(s), and to maintain peace,
it would be beyond comprehension of any person of ordinary
prudence to bear suspicion about the meeting of minds of named
offenders and hatching of conspiracy by the State at the highest F
level, as alleged, much less grave or strong suspicion as being
the quintessence for sending the accused for trial for an offence
of criminal conspiracy. [Para 44][162-C-E]
6.1. The protagonists of quest for justice sitting in a
comfortable environment in their air-conditioned office may G
succeed in connecting failures of the State administration at
different levels during such horrendous situation, little knowing
or even referring to the ground realities and the continual effort
put in by the duty holders in controlling the spontaneous evolving
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8 SUPREME COURT REPORTS [2022] 6 S.C.R.

A situation unfolding aftermath mass violence across the State. The
linking of such failures is not enough to entertain a suspicion
about hatching of criminal conspiracy at the highest level, which
requires a concerted effort of all the persons concerned and more
importantly, clear evidence about meeting of the minds to
accomplish such design, much less of causing and precipitating
B
mass violence across the State. Be that as it may, overrunning of
State administration is not an unknown phenomenon. [Para
45][162-F-G; 163-C]
6.2. Breakdown of law-and-order situation if for short
duration, cannot partake the colour of breakdown of rule of law
C or constitutional crisis. To put it differently, misgovernance or
failure to maintain law-and-order during a brief period may not
be a case of failure of constitutional machinery in the context of
tenets embodied in Article 356 of the Constitution. There must
be credible evidence regarding State sponsored breakdown of
D law-and-order situation; not spontaneous or isolated instances
or events of failure of State administration to control the situation.
The breakdown of law-and-order situation in the State including
attributable to the alleged inaction of the (State) duty holders,
owing to spontaneous mass violence cannot be a safe measure to
infer as being a part of the criminal conspiracy at the highest
E level of political dispensation unless there is clear evidence to
so conclude regarding meeting of the minds of all concerned and
their concerted efforts to commit or promote commission of such
crime. The allegation in the present case, if at all relevant, was
founded on falsehood of the claim of Mr. Sanjeev Bhatt and Mr.
F Haren Pandya regarding the utterances of the then Chief Minister
in review meeting chaired by him – which stood completely
exposed after the investigation by the SIT. [Para 45][163-D-G]
6.3. For the same reason, it would not be open to the
concerned Court to take cognizance or to call upon the SIT to do
G further investigation absent any tangible material. On the other
hand, the opinion recorded by the SIT has dealt with the materials
to conclude that it cannot be said that no action had been taken
on letters sent by Mr. R.B. Sreekumar. Similarly, while dealing
with the allegation [No. (xiv)] regarding undue delay in requisition

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 9

and deployment of Army, the SIT had opined that there was A
genuine problem of deploying Army despite sending of requisition
on 28.2.2002 at 1300 hrs., which message was sent by fax to the
Union Defence Secretary, Ministry of Defence at 1430 hrs. and
the time taken in posting the Army after its arrival due to logistical
reasons. [Para 46][163-H; 164-A-B]
B
6.4. There is no tittle of material, much less tangible material
to support the plea of the appellant that the Godhra incident
unfolded on 27.2.2002 and the events which followed, was a pre-
planned event owing to the criminal conspiracy hatched at the
highest level in the State. It is well settled that conspiracy requires
an act (actus reus) and an accompanying mental state (mens rea). C
The agreement constitutes the act and the intention to achieve
the unlawful objective of that agreement constitutes the required
mental state. The offence of conspiracy is independent of other
offences. It takes place when there is an agreement to do or
cause to be done an illegal act, or an act which may not be illegal D
but by illegal means. The rationale of conspiracy is that the
required objective manifestations of dispositions of criminality is
provided by the act of agreement. To convict a person of
conspiracy, the prosecution must show that he agreed with others
that together they will accomplish the unlawful object of the
conspiracy. Inaction in the response or even in a given case of E
non-responsive administration, can be no basis to infer hatching
of criminal conspiracy by the authorities of the State Government
in absence of any clear evidence about the meeting of minds; and
that, failure to respond to the messages sent by SIB was a
concerted and deliberate act of omission or commission on the F
part of the State and other functionaries, as alleged. The SIT had
recorded the statements of all concerned including the officials
before forming the opinion, as noted in the final report, to discard
the allegation under consideration. The Magistrate, as well as,
the High Court committed no error whatsoever in accepting the
final report presented by the SIT. [Para 47][164-C-G; 165-A] G

7. The argument pressed into service about the existence
of materials regarding build-up of communal mobilizations and

H
10 SUPREME COURT REPORTS [2022] 6 S.C.R.

A stockpiling of weapons, arms and ammunitions even before the
Godhra episode on 27.2.2002 being part of the larger criminal
conspiracy, is devoid of merits. This argument proceeded on an
erroneous assumption that the SIT had not investigated into this
crucial matter. [Para 48][165-B]
B 8.1. The SIT has not found any conspiracy, linking separate
and disparate acts of arson and looting or outrageous claims made
in sting operations or individual utterances/publications of
purported hate speech, to any singular larger conspiracy or
planned event. The materials gathered during the investigation,
C in no way link any “meeting of the minds” in any of the nine (9)
cases investigated by the SIT or for that matter, other incidents
alleged in the complaint or the protest petition. The riots across
the State had taken place spontaneously, immediately after the
Godhra Train Carnage. In the investigation done by the SIT in all
the nine (9) sets of cases, no material was discovered pointing
D towards any meeting of minds/conspiracy in the higher echelons
of the administration or the political establishment conspired with
other persons to cause such riots or for having turned nelson’s
eye when the riots had triggered and continued. There is no chain
or any perceivable link or connection in these occurrences during
E the relevant period, which ought to be the quintessence had it
been a case of larger conspiracy at the highest level. Indeed, the
factum of conspiracy can be inferred, but absent any perceivable
link, much less about the meeting of minds of all concerned, it is
not open to assume conspiracy in the air. [Para 53][173-D-G]

F 8.2. It is amply clear that the argument pressed into service
on the premise of no investigation done by SIT on crucial matters
is contrary to the materials on record and the opinion recorded
by the SIT is after due consideration of all aspects and backed by
tangible materials gathered during investigation by it. [Para
54][173-H; 174-A]
G
8.3. For the same reason, the argument regarding mass
mobilizations and hate speech on 27.2.2002 regarding proactive
and aggressive behaviour of persons returning from Ayodhaya/
Karsevaks after the Godhra attack, is tenuous. [Para 55][174-B]

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 11

9.1. Much argument was made about the postmortem of A
dead bodies in the open in Railway yard and also, parading them
from Godhra to Ahmedabad. According to the appellant, the post-
mortem was done in the open yard as part of larger criminal
conspiracy to obliterate the real cause of death of 243 Kar-sevaks
at Godhra due to fire and then to transport the dead bodies to
B
Ahmedabad so as to parade them amidst shouting of provocative
slogans so as to arouse passions. This plea taken in the protest
petition is of pure conjectures and surmises. In that, the deaths
had been caused due to the violent act of group of persons (who
were later identified after investigation and faced trial ending in
conviction) for setting the train (Coach S6 of Sabarmati Express) C
carrying Kar-sevaks on fire. The case concerning Godhra train
episode was also investigated by the SIT under the supervision
of this Court and that trial ended in conviction of 32 (thirty-two)
persons and the confirmation appeals for capital punishment have
also been disposed of by the High Court. In those proceedings,
D
the Courts have considered the issue concerning post-mortem
of dead bodies in the open in Railway yard. In other words, the
issue under consideration raised by the appellant has already
passed the muster of judicial scrutiny before the trial Court and
the High Court. Accepting the argument of the appellant on this
score would need reinvestigation of the concluded case which E
must be eschewed and cannot be countenanced. [Para 56][174-
F-H; 175-A-B]
9.2. The allegation regarding parading of dead bodies, has
been dealt with by the SIT. The thrust of the opinion formed by
the SIT upon analyzing the relevant materials in connection with F
this allegation is that the decision to carry the dead bodies from
Godhra to Ahmedabad for being handed over to their relatives,
was a unanimous decision taken at the Godhra Collectorate. This
decision was taken as most of the passengers were to travel to
Ahmedabad and their relatives had not reached or were unable
to reach Godhra to collect their bodies. It was also decided that G
bodies will be carried to Sola Civil Hospital located on the
outskirts of Ahmedabad City and thus away from the crowded
area for security reasons. Most of the dead bodies (54 unclaimed
at Godhra) were of persons who were ordinarily residing in and
around Ahmedabad. Thus, the entire exercise was within the H
12 SUPREME COURT REPORTS [2022] 6 S.C.R.

A control and supervision of the administration and there was no
parading of dead bodies, as alleged. There was no undue haste in
carrying the bodies including cremation thereof. The essential
protocol was substantially followed in that respect. This opinion
recorded by the SIT in its final report is consistent with the
circumstances and materials gathered during the investigation.
B
The allegation under consideration is unfounded and has been
rightly discarded by the SIT. [Para 57][182-F-H; 183-A-C]
10. The appellant had also placed emphasis on the
allegations in the complaint about the Cabinet Ministers
positioning themselves in the City Police Control Room and
C issuing instructions, to buttress their argument about State
sponsored violence, as stated in the affidavit filed by Mr. R.B.
Sreekumar. This allegation has been thoroughly enquired into
by the SIT. The analysis done by the SIT after further investigation
in respect of allegation under consideration commended to the
D Magistrate, as well as, the High Court. There is no reason to
deviate from the said opinion or the view taken in that regard.
[Paras 58, 59][183-C-D; 197-A-B]
11.1. There is no merit in the argument of the appellant
that the SIT had failed to collect the call records of the accused
E persons, not analyzed the available call records from CD supplied
by Mr. Rahul Sharma and failed to seize the phones of persons
involved. In that, the events had unfolded in the year 2002 and
the SIT was constituted only in the year 2008 by this Court to
look into and enquire into the complaint of appellant, dated
8.6.2006. During the contemporary period (year 2002), two mobile
F operators were providing services in the Gujarat State, namely,
M/s. AT&T and M/s. Cellforce, who had the protocol of
maintaining the electronic call records for one year only.
Resultantly, it was not possible for the SIT to retrieve the call
records from these service providers after its appointment in
G the year 2008. It is, therefore, not a case of failure of the SIT to
collect the call detail records of various persons referred to in
the details discernible from the record submitted by Mr. Rahul
Sharma. [Para 61][203-B-E]

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 13

12. The appellant had also alleged about police inaction A
which facilitated riots as part of conspiracy giving specific
instances in that regard. The SIT has considered this allegation,
and upon analyzing the materials gathered during the
investigation, opined that the circumstances highlighted by the
appellant were not sufficient link to infer that the named persons
B
had hatched larger conspiracy to cause mass violence across the
State targeting the minority community. On closer scrutiny of the
analysis in this regard, the opinion of the SIT is a plausible opinion.
For, the instances adverted to are essentially matters concerning
the acts of commission and omission at the ground level and not
indicative of any link to sustain the allegations of larger criminal C
conspiracy. Also, the erring officials identified for their acts of
commission and omission at the ground/local level have been
proceeded with departmentally. Every act of commission and
omission would not result in hatching criminal conspiracy unless
the acts have been done deliberately and there is meeting of
D
minds of all concerned. [Para 64][204-H; 205-A-C]
13. Absent clear and direct material indicative of
involvement of named person(s) in hatching criminal conspiracy
to cause mass violence across the State targeting minority
community during the relevant period, the attempt of the
appellant, if we may say so, is bordering on sewing of insignificant E
unconnected circumstances and events regarding the failures and
in some cases, laxity in administration, which is being projected
as an act of concerted effort of all the State officials upto the
highest level without there being any tittle of material to show
that there was meeting of minds of all these persons at some F
level. [Para 68][206-D-E]
14. Concededly, the act of transfer/posting of officials has
been after the unfolding of mass violence across the State. It was
obviously an administrative matter to address the expediencies
of that situation. One fails to understand as to how this G
circumstance can be reckoned as hatching of criminal conspiracy
resulting into mass scale violence across the State aftermath
Godhra incident. Such conspiracy ought to have preceded the
triggering of mass violence. [Para 70][211-H; 212-A-B]

H
14 SUPREME COURT REPORTS [2022] 6 S.C.R.

A 15. Another allegation was, namely, senior officers were
awarded with undue benefits for collaborating with the illegal plans
of CM/BJP during 2002 riots and afterwards. This has been found
to be a far-fetched and unfounded allegation by the SIT, after
analyzing the relevant materials on record including the
statements of the concerned officials, dealing with the case of
B
each officer as named in the complaint. Even this opinion of the
SIT needs no second look also for the reason that such an act
would not be a link to connect the act of hatching of criminal
conspiracy resulting in mass violence across the State. [Para
72][215-C-D]
C
16. Argument was also advanced in reference to allegation
that pro-VHP Advocates were appointed as public prosecutors
in riots cases. This has been thoroughly examined by the SIT.
One fails to understand as to how this act can be linked with the
allegation of hatching of criminal conspiracy for causing or
D precipitating mass violence across the State. The appellant having
failed to provide sufficient material to raise serious suspicion in
respect of allegation of hatching of criminal conspiracy for the
intended mass violence, cannot be heard to make that deficiency
by raising allegation of the kind of appointments of public
E prosecutors during the trial of the concerned cases. Be that as it
may, the allegation clearly overlooks the procedure regarding
appointment of a public prosecutor. [Para 73][215-D-E; 221-B-
D]
17. The appellant had urged that the SIT had not
F investigated the willful failure of the fire brigade in Ahmedabad
to respond to the calls made by the minority community being
part of the criminal conspiracy. This argument is unfounded and
tenuous. The fire services in Ahmedabad City come within the
jurisdiction of Ahmedabad Municipal Corporation and not the
State police or the State civil administration. The Commissioner
G of Police of Ahmedabad City, who has been blamed by the
appellant, had nothing to do with the functioning of the fire brigade.
No tangible material is forthcoming to indicate that the
Commissioner of Police of Ahmedabad City had issued
instructions to the officials of fire services in Ahmedabad City
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 15

under the control of the Ahmedabad Municipal Corporation. A
Whereas, the materials collected by the SIT would reveal that in
the entire city of Ahmedabad, blockades were created at various
locations due to mass violence, making it difficult, if not
impossible, for movement of the vehicles such as fire brigade. In
any case, this argument is one of inaction or failure of fire services
B
in the Ahmedabad City. That cannot be the basis to infer criminal
conspiracy, much less hatched at the highest level to cause mass
violence across the State. [Para 78][222-G; 223-A-C]
18. The respondents had justly contended that the attempt
of the appellant was to keep in improvising their grievances and C
make new allegations including to involve new offenders as being
party to the larger criminal conspiracy hatched at the highest
level. In the name of protest petition (running into 514 pages),
appellant was also indirectly questioning the decisions rendered
by the Courts in other cases including sub judice matters, for
reasons best known to her. She was obviously doing so under D
dictation of someone. In fact, the sizeable contents of the protest
petition are founded on the affidavits filed by those persons, whose
version have been found to be replete with falsehood. [Para
79][223-D-F]
19.1. Be that as it may, after going through the analysis E
done by the SIT of the concerned allegations, this Court has no
hesitation in accepting such opinion that no case had been made
out against the named 299 offenders, much less to indicate being
party to the hatching of larger criminal conspiracy to cause or
precipitate mass violence across the State against the minority F
community during the relevant period. [Para 80][223-F-G]
19.2. It is, therefore, not open to hold that the investigation
by the SIT in the present case has been deficient or infirm. Every
allegation found in the complaint (running into 67 pages) had been
culled out by the SIT and articulated in the form of thirty-two (32) G
broad allegations. The same had been duly investigated from all
angles before submitting the report to this Court. The analysis
and opinion of the SIT of the materials collected during
investigation allegation-wise, witness-wise as well as, offender-
wise are broadly agreed upon even by the learned Amicus Curiae
H
16 SUPREME COURT REPORTS [2022] 6 S.C.R.

A - except the observations made regarding some matters, which
observations have also been thoroughly enquired into by the SIT
by way of further investigation and duly analyzed for recording its
opinion, in the final report presented to the concerned Court.
The Magistrate, as well as, the High Court have accepted the
final report presented by the SIT. For, there is no material worth
B
the name to even create a suspicion (leave alone strong suspicion
and a ground for presuming that the named offenders had
committed an offence of larger conspiracy), indicative of the
meeting of the minds of all concerned at some level; and in
particular, the bureaucrats, politicians, public prosecutors, VHP,
C RSS, Bajrang Dal or the members of the State political
establishment - for hatching a larger criminal conspiracy at the
highest level to cause and precipitate mass violence against the
minority community across the State during the relevant period.
Such conclusion reached by the Magistrate and the High Court
is unexceptionable. [Para 81][223-G-H; 224-A-D]
D
19.3. The SIT came to be constituted by this Court of
experienced senior officials with proven ability of investigating
complex offences. Therefore, the assail of the appellant was not
only far-fetched and an attempt to undo and undermine the industry
of the SIT in having thoroughly investigated all the nine (9) sets
E
of cases assigned to it by this Court, but also in the nature of
questioning the wisdom of this Court, and, hence is rejected.
[Para 85][226-B-C]
19.4. Indefatigable work was done by the team of SIT
officials in the challenging circumstances they had to face and
F yet, they have come out with flying colours unscathed. At the end
of the day, it appears that a coalesced effort of the disgruntled
officials of the State of Gujarat alongwith others was to create
sensation by making revelations which were false to their own
knowledge. The falsity of their claims had been fully exposed by
G the SIT after a thorough investigation. Intriguingly, the present
proceedings have been pursued for last 16 years (from submission
of complaint dated 8.6.2006 running into 67 pages and then by
filing protest petition dated 15.4.2013 running into 514 pages)
including with the audacity to question the integrity of every
functionary involved in the process of exposing the devious
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 17

stratagem adopted (to borrow the submission of counsel for the A
SIT), to keep the pot boiling, obviously, for ulterior design. As a
matter of fact, all those involved in such abuse of process, need
to be in the dock and proceeded with in accordance with law.
[Para 88][226-E-G]
20.1. To sum up, no fault can be found with the approach of B
the SIT in submitting final report dated 8.2.2012, which is backed
by firm logic, expositing analytical mind and dealing with all
aspects objectively for discarding the allegations regarding larger
criminal conspiracy (at the highest level) for causing and
precipitating mass violence across the State against the minority
community during the relevant period. The SIT has gone by the C
logic of falsity of the information or material and including the
same remaining uncorroborated. In that, the materials collected
during the investigation do not give rise to strong or grave
suspicion regarding hatching of larger criminal conspiracy at the
highest level for causing mass violence across the State against D
the minority community and more so, indicating involvement of
the named offenders and their meeting of minds at some level in
that regard. The SIT had formed its opinion after considering all
the materials collated during the investigation. The question of
further investigation would have arisen only on the availability of
new material/information in connection with the allegation of larger E
conspiracy at the highest level, which is not forthcoming in this
case. Hence, the final report, as submitted by the SIT, ought to
be accepted as it is, without doing anything more. [Para 89][226-
H; 227-A-D]
20.2. The Magistrate, upon presentation of final report F
could have exercised different options. However, the Magistrate
in the present case, after applying his mind independently to the
final report dated 8.2.2012 and the materials appended thereto,
chose to accept the same as it is, without issuing any other
direction to the SIT. [Para 90][227-E] G
20.3. The decision of the Magistrate in accepting the stated
final report dated 8.2.2012 submitted by the SIT, is upheld as it
is and the protest petition filed by the appellant is rejected. The
submission of the appellant regarding infraction of rule of law in
H
18 SUPREME COURT REPORTS [2022] 6 S.C.R.

A the matter of investigation and the approach of the Magistrate
and the High Court in dealing with the final report, cannot be
countenanced. [Para 91][227-F]
Jakia Naseem Ahesan & Anr. v. State of Gujarat & Ors.
(2009) SCC Online SC 6; National Human Rights
B Commission v. State of Gujarat & Ors. (2009) 6 SCC
342; Bhagwant Singh v. Commissioner of Police & Anr.,
(1985) 2 SCC 537 : [1985] 3 SCR 942; Vineet Narain
& Ors. v. Union of India & Anr. (1996) 2 SCC 199 :
[1996] 1 SCR 1053; Union of India & Ors. v. Sushil
Kumar Modi & Ors. (1998) 8 SCC 661; M.C. Mehta
C (Taj Corridor Scam) v. Union of India & Ors. 24 (2007)
1 SCC 110 : [2006] 9 Suppl. SCR 683; Narmada Bai
v. State of Gujarat & Ors. (2011) 5 SCC 79 : [2011]
5 SCR 729; Vishnu Kumar Tiwari v. State of Uttar
Pradesh & Anr. (2019) 8 SCC 27 : [2019] 8 SCR 1114;
D Abhinandan Jha & Ors. v. Dinesh Mishra AIR 1968
SC 117 : [1967] 3 SCR 668; Popular Muthiah v. State
represented by Inspector of Police (2006) 7 SCC 296 :
[2006] 3 Suppl. SCR 100; Jakia Naseem Ahesan & Anr.
v. State of Gujarat & Ors. (2011) 12 SCC 302 : [2011]
11 SCR 365; Firozuddin Basheeruddin & Ors. v. State
E of Kerala (2001) 7 SCC 596; Nirmal Singh Kahlon v.
State of Punjab & Ors. (2009) 1 SCC 441 : [2008]
14 SCR 1049; R. Venkatkrishnan v. Central Bureau of
Investigation (2009) 11 SCC 737 : [2009] 12 SCR 762;
State (NCT Delhi) v. Shiv Charan Bansal & Ors. (2020)
F 2 SCC 290 : [ 2019] 17 SCR 1155; State of Karnataka
& Anr. v. Dr. Praveen Bhai Thogadia (2004) 4 SCC
684 : [2004] 3 SCR 652; Amish Devgan v. Union of
India & Ors. (2021) 1 SCC 1; R.K. Anand v. Registrar,
Delhi High Court, (2009) 8 SCC 106 : [2009]
11 SCR 1026; Rajat Prasad v. Central Bureau of
G Investigation, (2014) 6 SCC 495 : [2014] 8 SCR 636;
Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar
& Ors. [1959] SCR 279; Kehar Singh & Ors. v. State
(Delhi Administration) (1988) 3 SCC 609 : [1988] 2
Suppl. SCR 24; Abdul Sathar v. The Principal
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 19

Secretary to Government W.P. No. 41791/2006 (with A
connected cases) decided on 5.2.2021; Zahira
Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors.
(2004) 4 SCC 158 : [2004] 3 SCR 1050; Zahira
Habibulla Sheikh (5) & Anr. v. State of Gujarat & Ors.
(2006) 3 SCC 374 : [2006] 2 SCR 1081; Dayal Singh
B
& Ors. v. State of Uttaranchal (2012) 8 SCC 263 :
[2012] 10 SCR 157; Nazir Khan & Ors. v. State of Delhi
(2003) 8 SCC 461 : [2003] Suppl. SCR 884; S. Nambi
Narayanan v. Siby Mathews & Ors. (2018) 10 SCC
804 : [2018] 12 SCR 51; Hanumant, son of Govind
Nargundkar v. State of Madhya Pradesh [1952] SCR C
1091; State of Gujarat v. Afroz Mohammed Hasanfatta
(2019) 20 SCC 539 : [2019] 1 SCR 1104; H.N.
Rishbund & Anr. v. State of Delhi AIR 1955 SC 196
[1955] 1 SCR 1150; Gura Singh v. State of Rajasthan
(2001) 2 SCC 205 : [2000] 5 Suppl. SCR 408; S.K.
D
Sinha, Chief Enforcement Officer v. Videocon
International Ltd. & Ors. (2008) 2 SCC 492 : [2008] 2
SCR 36; Piara Singh & Ors. v. State of Punjab (1977)
4 SCC 452 : [1978] 1 SCR 597; State of Bihar v. Ramesh
Singh (1977) 4 SCC 39 : [1978] 1 SCR 257; State
(Delhi Admn.) v. I.K. Nangia & Anr. 2 (1980) 1 SCC E
258 : [1980] 1 SCR 1016; R.K. Anand v. Registrar, Delhi
High Court (2009) 8 SCC 106 : [2009] 11 SCR 1026;
Rajat Prasad v. Central Bureau of Investigation (2014)
6 SCC 495 : [2014] 8 SCR 636; Testa Setalvad & Anr.
v. State of Gujarat & Ors. (2004) 10 SCC 88 : [2004]
F
3 SCR 1042; Sanjiv Rajendra Bhatt v. Union of India
& Ors. 899 (2016) 1 SCC 1 : [2015] 12 SCR 498;
Central Bureau of Investigation v. V.C. Shukla & Ors.
(1998) 3 SCC 410 : [1998] 1 SCR 1153; State of Bihar
& Anr. v. JAC Saldanha & Ors. (1980) 1 SCC 554 :
[1980] 2 SCR 16; M. C. Abraham & Anr. v. State of G
Maharashtra & Ors. (2003) 2 SCC 649 : [2002] 5
Suppl. SCR 677 and Shariff Ahmed & Ors. v. State
(NCT of Delhi) (2009) 14 SCC 184 : [2009] 8 SCR 75
– referred to.
Reg v. Hodge (1838) 2 Lew 227 – referred to. H
20 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Case Law Reference
(2009) 6 SCC 342 referred to Para 4
[1985] 3 SCR 942 referred to Para 4(v)
[1996] 1 SCR 1053 referred to Para 4(v)
B (1998) 8 SCC 661 referred to Para 4(v)
[2006] 9 Suppl. SCR 683 referred to Para 4(v)
[2011] 5 SCR 729 referred to Para 4(v)
[2019] 1 SCR 1104 referred to Para 5
C
[2011] 11 SCR 365 referred to Para 5(v)
[2004] 3 SCR 652 referred to Para 5 (vv)
(2021) 1 SCC 1 referred to Para 5 (vv)
[2019] 8 SCR 1114 referred to Para 6(b)
D
[1967] 3 SCR 668 referred to Para 6(b)
[2006] 3 Suppl. SCR 100 referred to Para 6(d)(4)
(2001) 7 SCC 596 referred to Para 6(tt)
[2008] 14 SCR 1049 referred to Para 6(tt)
E
[2009] 12 SCR 762 referred to Para 6(tt)
[2019] 17 SCR 1155 referred to Para 6(tt)
[2009] 11 SCR 1026 referred to Para 6(xx)

F [2014] 8 SCR 636 referred to Para 6(xx)
[1959] SCR 279 referred to Para 6(ccc)
[1988] 2 Suppl. SCR 24 referred to Para 6(ccc)
[2004] 3 SCR 1050 referred to Para 6(ddd)
G [2006] 2 SCR 1081 referred to Para 6(ddd)
[2018] 12 SCR 51 referred to Para 6(ddd)
[2006] 3 Suppl. SCR 100 referred to Para 6(d)(4)
[1955] 1 SCR 1150 referred to Para 6(g)
H [2000] 5 Suppl. SCR 408 referred to Para 6(g)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 21

[2008] 2 SCR 36 referred to Para 6(h) A
[1978] 1 SCR 597 referred to Para 6(l)
[1978] 1 SCR 257 referred to Para 6(ll)
[1980] 1 SCR 1016 referred to Para 6(ll)
[2003] 2 Suppl. SCR 884 referred to Para 6(nnn) B
[2004] 3 SCR 1042 referred to Para 6(rrr)
[2015] 12 SCR 498 referred to Para 6(nnn)
[1998] 1 SCR 1153 referred to Para 6(iiii)
[1980] 2 SCR 16 referred to Para 6(llll) C
[2002] 5 Suppl. SCR 677 referred to Para 6(llll)
[2009] 8 SCR 75 referred to Para 6(llll)
[2018] 12 SCR 51 referred to Para 7(dd)
[1952] SCR 1091 referred to Para 45
D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
912 of 2022.
From the Judgment and Order dated 05.10.2017 of the High Court
of Gujarat at Ahmedabad in Criminal Revision Application No. 205 of
2014. E
Kapil Sibal, Mihir Desai, Sr. Advs., Ms. Aparna Bhat,
Ms. Karishma Maria, Nizam Pasha, Adit Pujari, Raghav Tankha,
Ms. Aprajita Jamwal, Mihir Joshi, Advs. for the Appellant.
Tushar Mehta, SG, Mukul Rohatgi, Sr. Adv., Maninder Singh,
Ms. Kanu Agrawal, Ms. Devanshi Singh, Shantnu Sharma, Madhav F
Sinhal, Ms. Deepanwita Priyanka, Aldanish Rein, Advs. for the
Respondents.
The following Judgment of the Court was delivered:
JUDGMENT
1. There is a delay of 216 days in filing of this special leave petition G
against the judgment and order dated 5.10.2017 passed by the High
Court of Gujarat at Ahmedabad1 in Criminal Revision Application No.
205/2014. Even though the explanation offered in the application for
1
for short, “the High Court” H
22 SUPREME COURT REPORTS [2022] 6 S.C.R.

A condonation of delay is blissfully vague and bereft of any material facts
and particulars, keeping in mind the subject matter involved, we deemed
it appropriate to ignore/condone the delay and proceeded to hear the
matter on merits.
2. We must note that the respondents had faintly objected to the
B hearing of this matter on merits owing to unexplained delay in filing of
the petition. However, they have a serious objection to the joining of Ms.
Teesta Setalvad (as petitioner No. 2). Firstly, because, the protest petition
on which impugned order had been passed and assailed in this appeal,
was filed only by the appellant2 – Zakia Ahsan Jafri, wife of deceased –
Mr. Ehsan Jafri and on the earlier occasion (proceedings before the
C High Court), it has been ruled that she had no locus standi to join the
cause of appellant, which opinion has become final as it has not been
reversed by this Court in SLP(Crl.) No. 1088/2008. Secondly, the
antecedents of Ms. Teesta Setalvad need to be reckoned and also because
she has been vindictively persecuting this lis for her ulterior design by
D exploiting the emotions and sentiments of appellant – Zakia Ahsan Jafri,
the real victim of the circumstances. On the other hand, according to
Ms. Teesta Setalvad, she is a bonafide crusader of human rights issues
and has been following this case closely being fully convinced about the
cause in quest of justice. However, as aforementioned, we have leaned
in favour of examining the merits of the challenge to the impugned
E order(s) at the instance of appellant - Zakia Ahsan Jafri. For, because of
the subject matter, this Court in the past had to invoke its role of parens
patriae in issuing sui generis directions including in constituting a Special
Investigation Team3 to investigate into the matter and to present
appropriate report before the Metropolitan Magistrate taking cognizance
F of Crime Report (CR) No. 67/2002 dealing with the Gulberg Society,
Meghaninagar case. Thus, we do not wish to dilate on the issue of locus
of Ms. Teesta Setalvad and keep that preliminary objection open to be
decided in an appropriate case.
3. In that light, we have granted leave to appeal and decided to
G examine the matter on merits at the instance of the appellant – Zakia
Ahsan Jafri.

2
hereinafter, “appellant” means Zakia Ahsan Jafri only
3
H for short, “SIT”
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 23

PREFACE A
4. Shorn of unnecessary factual matrix, this matter essentially
emanates from the sui generis directions given by this Court on
27.4.20094 in SLP(Crl.) No. 1088/2008, whilst considering challenge to
the decision of the High Court dated 2.11.2007, rejecting the prayer of
the appellant – Zakia Ahsan Jafri for issuing direction to the concerned B
authority to register an FIR on the basis of complaint presented by her
on 8.6.2006 to the Director General of Police, Gujarat. However, this
Court vide stated order (dated 27.4.20095), directed the SIT appointed
by it in terms of the order dated 26.3.20086, to “look into” the complaint
dated 8.6.2006 and take steps as required by law and to give its report to
this Court within three months. Consequent to such direction, the SIT C
submitted its successive reports on the basis of investigation done by it
including by taking into account the observations of the Amicus Curiae
appointed by this Court. Treating the further report submitted by the SIT
as analogous to report under Section 173(8) of the Code of Criminal
Procedure7, this Court permitted the SIT to place it before the Magistrate D
taking cognizance of CR No. 67/2002 concerning trial in Gulberg Society
case with further direction to the Magistrate to then proceed in
accordance with law, including to give opportunity to the appellant in the
event of final report submitted by the SIT was to recommend closure of
her complaint. Appellant – Zakia Ahsan Jafri, after being served with
the final report dated 8.2.2012 alongwith relevant materials adverted to E
therein, then filed protest petition on 15.4.2013. This protest petition came
to be rejected by the Metropolitan Magistrate vide order dated 26.12.2013
and instead, the final report of the SIT came to be accepted. This decision
was carried before the High Court by way of Criminal Revision
Application No. 205/2014. The revision application came to be disposed F
of on 5.10.2017, against which the present appeal arises for our
consideration.
FACTS
5. (a) Briefly stated, the abhorrent Godhra incident occurred in
the morning of 27.2.2002, wherein Kar-sevaks travelling in Sabarmati G
Express train, returning from Ayodhya, were allegedly attacked and
4
2009 SCC Online SC 6 - Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors.
5
supra at footnote No. 4
6
(2009) 6 SCC 342 – National Human Rights Commission vs. State of Gujarat & Ors.
7
for short, “the Code” H
24 SUPREME COURT REPORTS [2022] 6 S.C.R.

A coaches of the train were set on fire at Godhra Railway Station at around
7.45 a.m., as a result of which, 58 persons were charred to death and
59th victim succumbed to the burn injuries on 3.4.2002. As aftermath of
that incident, there was unrest and violence all across the State of Gujarat.
In that process – a violent mob attacked the inhabitants of Gulberg
Society, Meghaninagar, killing 69 persons at the stated location including
B
the husband of appellant – Zakia Ahsan Jafri, who had unsuccessfully
attempted to dissuade the mob. In connection with this incident, a crime
was registered at “Meghaninagar Police Station” being CR No. 67/2002.
Multiple chargesheets were filed against the concerned accused and
the case was committed to Sessions.
C (b) Since there was widespread violence bordering on failure of
the State machinery to prevent and control the same including to arrest
all the perpetrators of the crime and undertake fair investigation, the
National Human Rights Commission8 filed a writ petition before this
Court being W.P.(Crl.) No. 109/2003. In that writ petition, the Court
D appointed Mr. Harish Salve, learned senior counsel as Amicus Curiae
vide order dated 9.10.20039

8
for short, “the NHRC”
9
“ORDER
W.P.(Crl.) No. 109/2003
E An affidavit has been filed by the Chief Secretary to the Government of Gujarat
on 7th October, 2003. The said affidavit discloses that the State has moved to
the High Court for amending the criminal appeal filed against the judgment
passed by the Sessions Court acquitting the accused and the Court has permitted
the appeal to be amended. In the aforesaid view of the matter, we feel that in
this case an Amicus Curiae is required to be appointed. We request Shri Harish
F N. Salve, Sr. Advocate to appear in this case as Amicus Curiae which he has
accepted. Mr. Bhargava V. Desai, Advocate-on-Record is also appointed as
Amicus Curiae to assist Mr. Harish N. Salve, Sr. Adv.

List this matter as also TP(Crl.) Nos. 194-202/2003, WP(Crl.) No. D17953/
2003, SLP(Crl.) No. 3770/2003, SLP(C) No. 7951/2002 and WP (Crl.) Nos.
11-15/2003 on 17 th October, 2003. Counter affidavit filed today in Court on
G
behalf of Respondents Nos. 2 to 22 in SLP(C) No. 3770/2003 be taken on
record.

Let a complete set of paperbooks be given to the learned Amicus Curiae within
48 hours by the State of Gujarat.
…..”
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 25

(c) This Court vide order dated 21.11.200310, stayed the trial of 9 A
(nine) major criminal cases mentioned in the order, including the one
arising from CR No. 67/2002 concerning the Gulberg Society.

10
“ORDER
TP(Crl) 194-202/203.
B
Issue notice.

Notice has been accepted by Ms.H.Wahi, learned counsel appearing for
respondent no.1 State of Gujarat. She prays for and is allowed two weeks’ time
to file counter affidavit. Notice to the remaining respondents shall be served
through the State of Gujarat within a period of two weeks. C
Until further orders, the trial in the following cases shall remain stayed: -

1.ARISING OUT OF FIR NO.09/2002 DATED 27.2.2002 OF POLICE
STATION GODHRA:

(i) Criminal Case Nos.1-6/2003 titled State v. Mohmad Rafudan Ansari & D
Ors. pending in the Court of Special Judge, POTA, Ahmedabad;

(ii)Crime No.09/2002 titled State v. Junia Farooq Hassan & Ors. pending in
the Juvenile Court, Godhra;

2. Criminal Case No.275/2002 arising out of FIR No.46/2002 dated 28.2.2002
of Police Station Bijaypur, titled State v. Patel Rameshbhai Kanjibhai & Ors. E
pending in the Court of Sessions Judge, Mehsana, Gujarat;

3. ARISING OUT OF FIR NO.67/2002 DATED 28.2.2002 OF POLICE
STATION MEGHANINAGAR:
(i)Sessions Case No.152/2002 titled State v. Kailash Lalchand Bhai
Dhobi & Ors. pending in the Court of Sessions Judge, Bhadra,
Ahmedabad; F

(ii)Criminal Case No.1720/2002 titled State v. Shankarji Hakaji Mali
& Ors. pending in the Metropolitan Magistrate Court No.XI,
Ahmedabad;

(iii)Criminal Case No.296/2003 titled State v. Sandeep alia Sonu G
Ghunghru Val Valo & Ors. pending in the Metropolitan Magistrate
Court No.XI, Ahmedabad;

(iv) Criminal Case No.524/2002 titled State v. Vishal Badrilal Nayee
& Ors. pending in the Juvenile Court No.IV, Ahmedabad;

H
26 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (d) In the subsequent order passed in the group of petitions on
17.8.2004, this Court directed that in cases where ‘A’ Summary Report(s)
had been filed (around 2000 cases) should be further investigated by the
concerned Range Inspector Generals of Police in the State of Gujarat,
who should ascertain the correctness or otherwise of such reports. In
this appeal, we are not concerned with those cases.
B
(e) As noted earlier, this matter emanates from the complaint
filed by appellant – Zakia Ahsan Jafri on 8.6.2006 addressed to the
Director General of Police, Gujarat and other high officials including
Mr. D.A. Vaghela, P.I., Sector 21 Police Station, opposite Old Sachivalaya,
Gandhinagar, the Chief Secretary, State of Gujarat, Sachivalaya,
C Gandhinagar and the Home Secretary, State of Gujarat, Sachivalaya,
Gandhinagar. We shall advert to the contents of this complaint in detail a
little later.
(f) Broadly stated, in this complaint, appellant – Zakia Ahsan Jafri
mentioned names of 63 persons, who according to her, were also involved
D
4. ARISING OUT OF FIR NO.100/2002 DATED 28.2.2002 OF POLICE
STATION NARODA, AHMEDABAD:

(i) Criminal Case No.982/2002 titled State v. Naresh Amarsingh Chhara
& Ors. pending in the Metropolitan Magistrate Court No.XI,
E Ahmedabad, and

(ii) Criminal Case No.1662/2002 titled State v. Padmendra Singh & Ors.
pending in the Metropolitan Magistrate Court No.XI, Ahmedabad.

Learned counsel for the petitioner in TP(Crl) Nos.194-202/2003 prays for and
is permitted to amend the petitions for including the Sessions trial arising out of
F CR No.23/2002 and CR No.27/ 2002 (ODE Massacre). However, further trial
in those cases shall remain stayed. List on 19th December, 2003.

SLP(Cr) 4409/2003.

Issue notice.
G Ms.H. Wahi, learned counsel accepts notice. She prays for and is allowed two
weeks’ time to file reply.

In the meantime, further trial in Sessions Case No.180/2002 shall remain stayed.
List along with WP(Crl) No.109/2003 etc.
…..”
H (emphasis supplied)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 27

in larger conspiracy and abetment of the crime resulting in carnage A
between February, 2002 and May, 2002, that shook the State of Gujarat.
This allegation was against the then Chief Minister and Ministers of the
State, as well as high police officials and bureaucrats and others for
having committed offence under Section 302 read with Section 120B,
Section 193 read with Section 114 and Sections 185, 153A, 186 and 187
B
of the Indian Penal Code11 and Section 6 of the Commission of Inquiry
Act, 195212 and also under various provisions of the Gujarat Police Act,
195113 and the Human Rights Act, 199114.
(g) Appellant – Zakia Ahsan Jafri alongwith Ms. Teesta Setalvad
being the Secretary of Citizens for Justice and Peace forum, then filed
an application before the High Court on 1.3.2007 bearing Special Criminal C
Application No. 421/2007 under Articles 226 and 227 of the Constitution
of India read with Section 482 of the Code. During the pendency of the
said petition before the High Court, the Tehelka Tape surfaced, which
according to the appellant, unravelled the role of the concerned persons
being involved in the build-up to the commission of crime including D
conspiring and abetting the State-wide violence. Be that as it may, the
stated writ petition filed before the High Court was finally dismissed on
2.11.2007, in which the Court passed the following order: -
“43. For the reasons stated above, present petition is dismissed.
As the petitioners had not adopted the procedure of to file the E
complaint under section 190 r.w. section 200 of the Criminal
Procedure Code, the petitioner No.1 is relegated to file
appropriate private complaint to invoke the provisions of
section 190 r.w. section 200 of the Criminal Procedure Code
by filing the private complaint and the same shall be
considered in accordance with law and on merits after F
following due procedure under Criminal Procedure Code.
It is, however, made clear that this Court has not expressed any
opinion on the merits of the case in favour of either parties. Rule
discharged.”
(emphasis supplied) G

11
for short, “IPC”
12
for short, “the 1952 Act”
13
for short, “the 1951 Act”
14
for short, “the 1991 Act” H
28 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Notably, the High Court did not issue any direction for registration
of FIR in respect of the complaint presented by appellant – Zakia Ahsan
Jafri, dated 8.6.2006.
(h) Being aggrieved by this decision, the appellant alongwith Ms.
Teesta Setalvad filed SLP(Crl.) No. 1088/2008, hearing whereof was
B tagged alongwith writ petition filed by the NHRC being W.P.(Crl.) No.
109/2003. Vide order dated 3.3.200815, Mr. Prashant Bhushan, learned
counsel was appointed as Amicus Curiae in SLP(Crl.) No. 1088/2008
to espouse the cause of the appellant herein.
(i) When both these matters were listed on 26.3.2008 16, this Court
C passed the following order: -
“Order
After having heard learned counsel for the parties, we feel
that considering the sensitive nature of the cases involved,
appointment of a Special Investigation Team (in short ‘SIT’) is
D warranted. Communal harmony is the hallmark of a democracy.
No religion teaches hatred. If in the name of religion, people are
killed, that is essentially a slur and blot on the society governed by
rule of law. The Constitution of India, in its preamble refers to
secularism. Religious fanatics really do not belong to any religion.
E They are no better than terrorists who kill innocent people for no
rhyme or reason in a society which as noted above is governed by
rule of law.
These are cases where there is an element of communal
disharmony, which is not to be countenanced. The State of Gujarat
F 15
“ORDER
The High Court’s order does not render the petitioners remedyless. But,
various important aspects arise for consideration. In a given case, a person
who has knowledge of the commission of a crime may not be examined by the
police. The question is what is the remedy available to such person? We,
therefore, issue notice only to respondent Nos. 1 and 2 and the Union of India.
G Though, in the proceedings, the Central Bureau of Investigation is respondent
No. 3, there is presently no need for issuing any notice to the CBI, as we would
like to have the views of the Union of India also.
Mr. Prashant Bhushan, learned counsel has agreed to assist the Court as an
Amicus-Curiae. We would also request other learned senior members of the
Bar to assist the Court, as the question is of vital importance in the administration
of criminal justice.”
H 16
supra at footnote No. 6
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 29

has stated that it has no objection if further investigation is done A
so that peoples’ faith on the transparency of action taken by the
State is fortified.
Mr. Mukul Rohtagi, learned senior counsel appearing for
the State stated that the State’s approach is fair and it is not
interested in shielding any culprit or a guilty person, but on the B
other hand, would like all those who are guilty, to be punished.
This statement of Mr. Rohtagi is not accepted by some of the
learned counsel appearing for the alleged victims. We need not
go into that aspect, in view of the fact that there is an agreement
that there is need for a Special Investigation Team.
C
We, therefore, direct that an appropriate notification
shall be issued by the State Government regarding the
creation of SIT, the constitution of which shall be as follows.:-
1. Shri R.K. Raghavan, retd. Director of the CBI.
2. Shri C.B. Satpathy, retd. DG, Director, Uttar D
Pradesh, Police College, Moradabad
3. Ms. Geeta Johri
4. Shri Shivanand Jha
5. Shri Ashish Bhatia E

The notification by the State be issued as early as practicable,
preferably within ten days.
Officers at Sl Nos. 3 to 5 are IG rank officers. Shri
Raghavan will be the chairman of the committee and Ms. Geeta F
Johri shall be the convener. The committee shall in its first meeting
work out the modalities to be adopted for the purpose of enquiry/
investigation. If any person wants to make statement before
the SIT for giving his or her version of the alleged incidents,
the SIT shall record it. Those who want to give their version
shall in writing intimate the convenor of the committee so G
that the SIT can call him or her for the purpose of recording
his/her statement. It is needless to say that the SIT shall
not confine the investigation by recording statement of
those who come forward to give his or her version and shall
be free to make such inquiries/investigation as felt H
30 SUPREME COURT REPORTS [2022] 6 S.C.R.

A necessary by it. The State Government shall provide necessary
infrastructure and provide resources for effective working of the
SIT. The report of the SIT shall be furnished to this Court
in a sealed cover after completion of the inquiry/
investigation for which three months time is granted. After
the report is submitted, the further action required to be
B
taken shall be dealt with by this Court. The SIT shall conduct
inquiries/investigations including further investigation in the
following cases:-
I. GODHRA
C FIR NO.09/2002 DATED 27.2.2002:
i) CR NOS.1-6/2002 titled Mohd Rafudan Ansari & Ors.
ii) CR NOS.09/2002 titled State Vs. Junia Farooq Hassaan &
Ors. pending in Juvenile court

D II. SARDARURA, MEHSANA
CR Nos. 275/2002 arising out of FIR No.46/2002 dated 28.2.2002
of police station Bijapur, Mehsana
III. GULBERG SOCIETY, MEGHANINAGAR
AHMEDABAD CR Nos. 67/2002 at Meghaninagar Police
E Station
i) Sessions Case No. 152/2002 titled State V/s. Kailash
Lalchand Dhobhi & Ors.
ii) Criminal Case No. 1720/2002 titled State V/s.
Shankarji Hakaji Mali pending Metro Magistrate court,
F Ahmedabad
iii) Criminal Case No. 296/2003 titled State V. Sandeep
pending in the Metropolitan Magistrate court,
Ahmedabad

G iv) Criminal Case No. 524/2002 titled State V. Vishal
Badrilal Nayee & Ors. pending in the Junenile court,
Ahmedabad
IV. NARODA PATIYA
Arising out of FIR No. 100/2002 dated 28.2.2002 of PS Naroda,
H Ahmedabad
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 31

i) CR No. 982/2002 titled State v. Naresh Chahra pending in A
MM Court, Ahmedabad
ii) CR No. 1662/2002 titled State V. Padmendra Singh & Ors.
V. ODE ANAND DISTRICT
Cr.Nos. 23/2002 and 27/2002 (Ode Massacre). Leave was granted B
to petitioners, CJP, to amend petition to include these Session Trials.
Trials were stayed.
VI. NARODA GAON
Inadvertently left out. CJP filed a TP(Crl.) No. 233/2004 and trial
was stayed on 23.8.2004. C
VII. W.P.No. 284/2003 TP(Crl.) No. 43/2004 Imran Dawood Vs.
Union of India.
So far as SLP(Crl.) No. 4409/2003 and Writ Petition(Crl.)
216/2003 are concerned, though it is pointed out by learned counsel
D
by the State of Gujarat that the trial is at concluding stage, in view
of the orders passed in the other cases, we feel it would be
appropriate if the inquiry/investigation including further investigation
is done, in this case also. The relevant case No.is FIR 60/02
commonly known as ‘Deepda Darwaza’. So far as Writ
Petition(Crl.)No. 284/03 and T.P.(Crl.) 43/2004 are concerned, E
the case is commonly known as ‘British Nationals Case’ and relates
to Himmat Nagar, Prantij P.S district Sabarkantta and relates to
FIR 1/26/2002.
We make it clear that SIT shall be free to work out
the modalities and the norms required to be followed for F
the purpose of inquiry/investigation including further
investigation. Needless to say the sole object of the Criminal
Justice System is to ensure that a person who is guilty of an offence
is punished.
Mr. K.T.S. Tulsi, learned senior counsel had submitted that G
in some cases the alleged victims themselves say that wrong
persons have been included by the police officials as accused and
the real culprits are sheltered. He, therefore, suggested that
trial should go on, notwithstanding the inquiry/investigation
including further investigation as directed by us. We find
H
32 SUPREME COURT REPORTS [2022] 6 S.C.R.

A that the course would not be appropriate because if the
trial continues and fresh evidence/materials surface, it would
require almost a de novo trial which would be not desirable.
These matters shall be listed for further directions in the
last week of August, 2008.
B The pleadings in all these matters be completed within a
period of three months.”
(emphasis supplied)
(j) In furtherance of the above order, the SIT published a public
C notice on 28.4.2008 inviting the public wanting to share information
and record their statement(s) before the SIT, as notified. After
the publication of notice, the SIT started recording statements of
concerned persons willing to depose before it including others as
directed by this Court.

D (k) In due course, the special leave petition filed by the appellant
being SLP(Crl.) No. 1088/2008 came up for hearing on
27.4.200917, when this Court passed the following order: -
“ORDER
Having heard learned counsel for the parties we direct that
E complaint dated 8/6/2006 which the petitioners herein claim to
have sent to the DGP of Gujarat shall be examined by the Special
Investigation Team (in short ‘SIT’) constituted pursuant to the
orders of this Court. The SIT shall look into the matter and
take steps as required in law and give its report to this
Court within three months.
F
Call this matter after three months.
This case shall be heard along with writ petition (Crl.) No. 109 of
2003 and connected cases.”
(emphasis supplied)
G
Be it noted that when this order was passed, it must be assumed,
that this Court was aware of the fact that the FIR had already been
registered in connection with Gulberg Society case being CR No.
67/2002 and the same was committed to sessions for trial of the named
17
H supra at footnote No. 4
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 33

accused. Further, the special leave petition filed by the appellant to A
challenge the order of the High Court refusing to issue direction for
registration of FIR on the basis of complaint of appellant – Zakia Ahsan
Jafri, dated 8.6.2006, was still pending before it.
(l) Nevertheless, vide judgment dated 1.5.200918, this Court vacated
the stay of the trials and directed the prosecution of cases in Special B
Courts; and SIT appointed by it to submit progress report. The relevant
extract of the said judgment reads thus: -
“4. Several important aspects need to be noted in these cases.
Firstly, due to the efforts of SIT, persons who were not
earlier arrayed as accused have now been arrayed as C
accused. From the details indicated above it appears that
in most of the cases a large number of persons have been
additionally made accused. Besides this, a large number of
witnesses were also examined in each case. This goes to
show the apparent thoroughness with which SIT has
worked. Therefore, SIT shall continue to function until the D
completion of trial in all the cases and if any further inquiry/
investigation is to be done the same can be done as provided
in law, more particularly, under Section 173(8) of the Code
of Criminal Procedure, 1973 (in short “the Code”).
xxx xxx xxx E

37. Since the protection of a witness is of paramount importance
it is imperative that if and when any witness seeks protection so
that he or she can depose freely in court, the same has to be
provided. It is therefore directed that if a person who is
examined as a witness needs protection to ensure his or F
her safety to depose freely in a court he or she shall make
an application to SIT and SIT shall pass necessary orders
in the matter and shall take into account all the relevant
aspects and direct such police official/officials as it considers
proper to provide the protection to the person concerned. G
It shall be the duty of the State to abide by the direction of
SIT in this regard. It is essential that in riot cases and cases
involving communal factors the trials should be held expeditiously.
18
(2009) 6 SCC 767 - National Human Rights Commission vs. State of Gujarat & Ors.
(paras 4, 37 to 40) H
34 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Therefore, we request the Hon’ble Chief Justice of Gujarat High
Court to designate court(s) in each district where the trial of the
cases concerned are to be held. The Designated Courts shall take
up the cases in question.
38. Taking into account the number of witnesses and the accused
B persons and the volumes of evidence, it is open to the High Court
to designate more than one court in a particular district. Needless
to say that these cases shall be taken up by the Designated Court
on a day-to-day basis and efforts shall be made to complete the
trial with utmost expedition. SIT shall furnish periodic reports
if there is any further inquiry/investigation. The State of
C Gujarat shall also file a status report regarding the constitution of
the courts in terms of the directions to be given by the Hon’ble
Chief Justice of the High Court within three months. The matter
shall be listed further as and when directed by this Court.
39. ….. The matter was then heard from time to time and an
D order was then made on 26-3-2008 directing the establishment of
SIT, and for a further investigation into these matters. The matters
under investigation were those arising out of
(a) Crime No. 9 of 2002

E (b) Crime No. 100 of 2002
(c) Crime No. 23 of 2002
(d) Crime No. 98 of 2002
(e) Crime No. 46 of 2002
F (f) Crime No. 67 of 2002
(g) Crime No. 60 of 2002
(h) Crime No. 26 of 2002
(i) Crime No. 27 of 2002
G The reports of SIT, in respect of each of these cases
have now been received.
40. We have considered the submissions made by Mr Harish N.
Salve, learned amicus curiae, Mr Mukul Rohatgi, learned counsel
for the State, Ms Indira Jaising and other learned counsel. The
H following directions are given presently:
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 35

(i) Supplementary charge-sheets shall be filed in each of A
these cases as SIT has found further material and/or has
identified other accused against whom charges are now to
be brought.
(ii) The conduct of the trials has to be resumed on a day-to-day
basis keeping in view the fact that the incidents are of January B
2002 and the trials already stand delayed by seven years. The
need for early completion of sensitive cases more particularly in
cases involving communal disturbances cannot be overstated.
(iii) SIT has suggested that the six “Fast Track Courts” be
designated by the High Court to conduct trial, on a day-to-day C
basis, in the five districts as follows:
(i) Ahmedabad (Naroda Patia, Naroda Gam)
(ii) Ahmedabad (Gulbarg)
(iii) Mehsana (for two cases) D
(iv) Saabarkantha opened (British Nationale case)
(v) Anand
(vi) Godhra train case (at Sabarmati Jail, Ahmedabad)
(iv) It is imperative, considering the nature and sensitivity of these E
nominated cases, and the history of the entire litigation, that senior
judicial officers be appointed so that these trials can be concluded
as soon as possible and in the most satisfactory manner. In order
to ensure that all concerned have the highest degree of
confidence in the system being put in place, it would be
advisable if the Chief Justice of the High Court of Gujarat F
selects the judicial officers to be so nominated. The State of
Gujarat has, in its suggestions, stated that it has no objection to
constitution of such “Fast Track Courts”, and has also suggested
that this may be left to Hon’ble the Chief Justice of the High
Court. G
(v) Experienced lawyers familiar with the conduct of criminal trials
are to be appointed as Public Prosecutors. In the facts and
circumstances of the present case, such Public Prosecutors
shall be appointed in consultation with the Chairman of SIT.
The suggestions of the State Government indicate acceptance of H
36 SUPREME COURT REPORTS [2022] 6 S.C.R.

A this proposal. It shall be open to the Chairman of SIT to seek
change of any Public Prosecutor so appointed if any
deficiency in performance is noticed. If it appears that a
trial is not proceeding as it should, and the Chairman of
SIT is satisfied that the situation calls for a change of the
Public Prosecutor or the appointment of an Additional Public
B
Prosecutor, to either assist or lead the existing Public
Prosecutor, he may make a request to this effect to the
Advocate General of the State, who shall take appropriate
action in light of the recommendation by SIT.
(vi) If necessary and so considered appropriate SIT may
C nominate officers of SIT to assist the Public Prosecutor in
the course of the trial. Such officer shall act as the
communication link between SIT and the Public Prosecutor, to
ensure that all the help and necessary assistance is made available
to such Public Prosecutor.
D (vii) The Chairman of SIT shall keep track of the progress
of the trials in order to ensure that they are proceeding
smoothly and shall submit quarterly reports to this Court
in regard to the smooth and satisfactory progress of the
trials.
E (viii) The stay on the conduct of the trials are vacated in
order to enable the trials to continue. In a number of cases
bail had been granted by the High Court/Sessions Court principally
on the ground that the trials had been stayed. Wherever
considered necessary, SIT can request the Public
F Prosecutor to seek cancellation of the bails already granted.
(ix-i) For ensuring of a sense of confidence in the mind of the
victims and their relatives, and to ensure that witnesses depose
freely and fearlessly before the court, in case of witnesses
following steps shall be taken:
G (a) Ensuring safe passage for the witnesses to and from the
court precincts.
(b) Providing security to the witnesses in their place of
residence wherever considered necessary, and

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 37

(c) Relocation of witnesses to another State wherever such a A
step is necessary.
(ix-ii) As far as the first and the second is concerned, SIT shall
be the nodal agency to decide as to which witnesses require
protection and the kind of witness protection that is to be
made available to such witness. B
(ix-iii) In the case of the first and the second kind of witness
protection, the Chairman, SIT could, in appropriate cases,
decide which witnesses require security of the paramilitary
forces and upon his request same shall be made available by
providing necessary security facilities. C
(ix-iv) In the third kind of a situation, where the Chairman, SIT
is satisfied that the witness requires to be relocated outside
the State of Gujarat, it would be for the Union of India to
make appropriate arrangements for the relocation of such
witness. The Chairman, SIT shall send an appropriate request D
for this purpose to the Home Secretary, Union of India, who would
take such steps as are necessary to relocate the witnesses.
(ix-v) All the aforesaid directions are to be considered by SIT by
looking into the threat perception, if any.
(x) SIT would continue to function and carry out any E
investigations that are yet to be completed, or any further
investigation that may arise in the course of the trials. SIT
would also discharge such functions as have been cast upon
them by the present order.
(xi) If there are any matters on which directions are considered F
necessary (including by way of change of Public Prosecutors or
witness protection), the Chairman of SIT may (either directly
or through the amicus curiae) move this Court for
appropriate directions.
(xii) It was apprehension of some learned counsel that unruly G
situations may be created in court to terrorise witnesses. It needs
no indication that the court shall have to deal with such situations
sternly and pass necessary orders. SIT shall also look into this
area.
H
38 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (xiii) Periodic three monthly reports shall be submitted by
SIT to this Court in sealed covers.
41. List after four months.”
(emphasis supplied)
B It is thus noticed that this Court permitted trial of concerned (nine)
cases including the Gulberg Society case being CR No. 67/2002 to
proceed. This judgment is also indicative of the high trust reposed by this
Court in the SIT including about directing the State authorities to abide
by the instructions given by the SIT.

C (m) As directed by this Court vide order dated 27.4.2009 19, the
SIT examined the complaint and also recorded statements of the
concerned persons. Mr. A.K. Malhotra, former DIG, CBI and a member
of the SIT recorded statements of total 187 witnesses and Mr. Himanshu
Shukla, DCP, Crime Branch and I.O., SIT examined 145 witnesses, in
connection with the complaint of appellant – Zakia Ahsan Jafri, dated
D 8.6.2006. A total of approximately 275 persons were questioned by them
in compliance with the direction given by this Court. Two new members
came to be inducted in the SIT on 15.5.2009. When the investigation
into the stated complaint was ongoing, the SIT submitted last
supplementary chargesheet in the Gulberg Society case being CR No.
E 67/2002, on 12.8.2009, which fact was placed on record before this
Court.
(n) SLP(Crl.) No. 1088/2008 then came up for hearing on 19.1.2010
alongwith other cases. The Court was duly informed that the SIT had
submitted an interim report and asked for five months’ further time to
F complete the investigation in respect of complaint of appellant – Zakia
Ahsan Jafri, dated 8.6.2006. This Court granted time till 30.4.2010. The
order dated 19.1.2010, reads thus: -
“ORDER
In regard to the investigations in SLP(Crl.) No. 1088 of 2008, an
G interim report has been submitted by the Special Investigating
Team (SIT). In the said report it has been reported that having
regard to the gravity, complexity and vast spread of the allegations
across Gujarat State, a very large number of suspects and

19
H supra at footnote Nos. 4 and 17
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 39

witnesses have to be examined. It is also reported that a large A
number of vital documents are still awaited from the Government
of Gujarat. The Committee has prayed for grant of 5 months’
further time for completion of the enquiry and submission of its
final report in the matter. The Committee has also sought direction
to the Government of Gujarat to hand over all the vital documents
B
requisitioned by it from them.
Having perused the correspondence between the SIT and the
State Government, filed as annexures with the report, we direct
the Government of Gujarat to hand over all the documents, which
have been requisitioned by the SIT without any further delay. The
SIT would try to complete the enquiry in the matter expeditiously C
and submit its report by 30th April, 2010.
The report shall be kept in the sealed covers.
…..”
(o) On 6.5.2010, Gulberg Society case being CR No. 67/2002 D
was put on hold because of the resignation of the Special Public
Prosecutor appearing in that case. This Court took notice of I.A. No.
19816/2009 and passed the following order on 6.5.2010: -
“ORDER
E
Crl.M.P. No. 19816/2009:
Having perused the comments submitted by the learned
Amicus Curiae on the allegations in the application (I.A. No. 19816
of 2009), and discussed the matter with him and the Chairman
SIT at some length, we feel that it would be appropriate and
F
expedient to direct Mr. A.K. Malhotra, D.I.G. (Retd) C.B.I. to
examine all police records in the possession of the SIT and submit
a report about the veracity of the explanation given by the SIT on
each of the points raised in the said application. The report shall
be submitted within eight weeks.
We further direct that though it seems unlikely that G
the trials would conclude shortly, but if in any one of the
cases the trial is concluded before the next date, the
concerned Trial Court(s) shall not pronounce the final
judgment till further orders by this Court.
H
40 SUPREME COURT REPORTS [2022] 6 S.C.R.

A List the application along with other listed applications for
directions on 6th August, 2010.
A report has been submitted by the Chairman SIT, on the
letter of Shri Nigam R. Shukla, the Special Public Prosecutor, in
Naroda Police Station case (CR.No.98 of 2002). We request
B the learned Amicus Curia to assist the Chairman, SIT in
finding out suitable replacements for S/Shri R.K. Shah and
N.R. Nigam, Special Public Prosecutors. As soon as the names
are finalised by the Chairman SIT and communicated to the State
Government, appropriate orders in that behalf shall be issued by
the authorities concerned and in both the cases, which were being
C handled by them, shall resume subject to the orders, if any, by the
Gujarat High Court in transfer petition arising from C.R. No. 67
of 2001.
The progress report in Writ Petition (Crl.) No. 109 of 2003
filed by the SIT is taken on record.
D
The same be kept in the sealed covers.”
(emphasis supplied)
In other words, this Court once again passed an interim order in
respect of trial in Gulberg Society case being CR No. 67/2002, directing
E the trial Court to proceed but not to pronounce the final verdict. On
12.5.2010, the SIT submitted a report prepared by Mr. A.K. Malhotra
asking for time for further investigation to enquire into the role of
Mr. Gordhan Zadafia, the then Minister of State (Home), Mr. M.K.
Tandon, the then Joint Commissioner of Police, Sector-II, Ahmedabad
F City and P.B. Gondia, the then DCP, Zone-IV, Ahmedabad City.
(p) This Court, on 26.10.2010, permitted Mr. Prashant Bhushan,
learned Amicus Curiae to withdraw from the case and instead nominated
Mr. Rohinton Fali Nariman, learned senior counsel (as he then was) in
his place, to assist the Court. In addition, the Court directed handing
over of the reports of Mr. A.K. Malhotra to the Amicus Curiae, after
G
taking it on record. This Court also lifted the stay on the pronouncement
of the judgment except in Gulberg Society case being CR No. 67/2002.
Relevant portion of the said order dated 26.10.2010, reads thus: -

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 41

“O R D E R A
SLP(Crl.) No. 1088/2008
At the outset, Mr. Prashant Bhushan has expressed
unwillingness to continue as the Amicus Curiae and requested
that he may be relieved from the case. We accede to the request
and appoint Mr. Rohinton Fali Nariman as an Amicus Curiae to B
assist the Court in this case.
Mr. Bhushan states that he will return the papers of the
case received from the office in a sealed cover. On receipt of the
record, the office shall forward the same to Mr. Nariman.
C
Report dated 20th October, 2010 on further investigation
against Shri M.K. Tandan Etc. has been filed by the Chairman
and one of the Members of the Special Investigation Team.
According to the report, the investigation is likely to be concluded
within a fortnight. The report is taken on record.
D
Let the final report be filed before the next date. List on
2nd December, 2010, at 3.00 p.m. for consideration of the reports.
Crl.M.P. No. 22117 and 22115 of 2010 in SLP(Crl.) No.
1088/2008
In view of the fact that Mr. Prashant Bhushan has been E
discharged from the case as Amicus Curiae, both these
applications are rendered infructuous and are disposed of
accordingly.
Crl.M.P. No. 19816 of 2009 In WP(Crl.) Nos. 37-52/2002
In view of the subsequent developments, no further orders F
are called for in this application and the same is dismissed
accordingly.
Crl.M.P. Nos. 22161-22162 of 2010 In WP(Crl.) Nos. 37-
52 of 2002
G
Adjourned sine die.
Crl.M.P. No. 22325/2010 In WP(Crl.) NOs. 37-52 of 2002
At this stage, no orders are called for in the application.
The application stands disposed of accordingly.
Crl.M.P.NOs. 22326-22327/2010 in WP(Crl.) No. 109/2003 H
42 SUPREME COURT REPORTS [2022] 6 S.C.R.

A In the light of the report of Mr. A.K. Malhotra dated
13th August, 2010 and the submissions of learned Amicus
Curiae, we lift the restraint order passed on 6th May, 2010,
in all the cases, except in Cr. No. 67 of 2002 (Meghani
Nagar Gulbery Society case), in which case the trial may
proceed but the final judgment shall not be pronounced.
B
The trial Courts are now free to pronounce the final judgments.
The applications are disposed of accordingly.
WP(Crl.) No. 109/2003.
A report dated 20th October, 2010 has been filed by
C the Chairman, SIT, indicating the progress in trials in all
the cases. The Chairman has stated that the trials are being
closely monitored by him and other members of his team.
According to the report, the trials in all the cases, on the
whole, are proceeding quite satisfactorily.
D Let a copy of the report be supplied to the learned Amicus
Curiae.
The report will be taken up for consideration on 2nd
December, 2010, at 3.00 p.m.
We direct that in future the office shall list only those
E
applications in which specific orders for listing are made. All the
disposed of applications shall be detached from the record and
shall not be shown in the cause list. The office shall also prepare
a complete list of all the pending applications and place before the
Court for appropriate orders on the next date.
F
The aforestated two reports filed by the SIT shall be
kept in the sealed covers.
SLP(Crl.) No. 7046/2010
In the first instance, issue notice to respondent No.1. Ms.
G Hemantika Wahi waives service of notice on behalf of the said
respondent and seeks time to file reply affidavit. Let the needful
be done within two weeks with advance copy to the learned
counsel for the petitioners and to learned Amicus Curiae.
Rejoinder affidavit, if necessary, shall be filed by the next date.
Copies of the petition shall also be supplied to Mr. Harish N Salve,
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 43

the learned Amicus Curiae and the Chairman, SIT for their A
comments.
List on 2nd December, 2010 at 3.00 p.m.”
(emphasis supplied)
(q) The further report filed in this case had mentioned that most B
of the allegations were not borne out from the statements and materials
collated during investigation. However, it was recommended that further
investigation under Section 173(8) of the Code in respect of Mr. Gordhan
Zadafia, Mr. M.K. Tandon and Mr. P.B. Gondia, may be necessary.
Notably, the further investigation was conducted by Mr. Himanshu Shukla,
DCP, Crime Branch and I.O., SIT and report was submitted by him to C
this Court on 17.11.2010.
(r) As noticed earlier, on one hand, the trial concerning Gulberg
Society case being CR No. 67/2002 involving the gruesome killing of the
husband of the appellant and others by a violent mob was allowed to
proceed by this Court even when the SIT was enquiring into the complaint D
of appellant – Zakia Ahsan Jafri, dated 8.6.2006; and in that process, the
deposition of Mr. Ashish Khaitan, senior journalist (who had conducted
the Tehelka Sting Operation) was recorded by the trial Court on 2.8.2010,
of Mr. Rahul Sharma on 15.9.2010 and of appellant – Zakia Ahsan Jafri
on 22.10.2010. E
(s) Further investigation report came to be submitted before this
Court by Mr. Himanshu Shukla on 17.11.2010. On 23.11.201020,
Mr. Rohinton Fali Nariman, learned Amicus Curiae requested the Court
to allow him to withdraw from the case. That request was acceded to
by the Court and in his place, Mr. Raju Ramchandran was appointed as F
Amicus Curiae to be assisted by Mr. Gaurav Agrawal, learned counsel.
The Court also directed handing over to both the newly appointed Amicus
Curiae, the reports of SIT. The Amicus Curiae in turn examined the
SIT reports concerning complaint of appellant, dated 8.6.2006, and placed
their observations on record in the form of a note made over to the SIT.
This Court then vide order dated 20.1.2011, directed thus: - G
20
‘‘ORDER
Since Mr. Rohinton Fali Nariman, Senior Advocate has expressed his inability to assist
the Court in this case, we request Mr. Raju Ramachandran, Senior Advocate and Mr.
Gaurav Agarwal, Advocate, to assist the Court in this case as Amicus Curiae. All the
papers received back from Mr. Prashant Bhushan, learned counsel, in sealed cover shall
be forwarded to Mr. Gaurav Agarwal.” H
44 SUPREME COURT REPORTS [2022] 6 S.C.R.

A “ORDER
W.P.(CRL.)NO. 109/2003
Mr. Harish N. Salve, the learned amicus curiae, has placed
before us a note, pointing out that the Presiding Judge conducting
trial in Naroda Police Station I.CR No.100/2002, has since been
B transferred by the High Court in routine transfers of the Judicial
Officers in the State. Learned amicus suggests that since the trial
in the said case is at an advanced stage, the Officer may not be
shifted.
We feel that it will be proper and expedient if this request is
C made by the Chairman, Special Investigation Team (SIT) before
the Chief Justice of Gujarat High Court on the administrative side.
We are confident that having regard to the fact situation, the
learned Chief Justice will pass appropriate orders on the request
of the Chairman, SIT.
D A Progress Report, dated 18th January, 2011, regarding nine
under trial cases has been filed by the Chairman, SIT. It appears
from the said report that except for two Naroda cases, trial in
other cases is nearing completion.
In the said report, it is also pointed out that Presiding officer
E looking after the trial of Gulberg Society case (Shri B.U. Joshi)
and Naroda Patiya case (Ms. Jyotsnaben Yagnik) have been
transferred out of Ahmedabad on 30th December, 2010. The report
is taken on record and shall be kept in a sealed cover.
Special Leave Petition (Criminal) No. 7046 of 2010
F
Ms. Kamini Jaiswal, learned counsel appearing for the
petitioners prays that orders on the petition may be deferred for
some time as she has not yet received complete instructions in
the matter.
Call on 3rd March, 2011 at 3.00 p.m.
G
W.P.(CRL.) NO. 37-52/2002
An additional affidavit has been filed by Ms. Teesta
Setalvad, one of the petitioners, explaining the
circumstances under which copies of two letters addressed
H by her to Shri R.K. Raghavan, Chairman, SIT, were
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 45

endorsed to the Office of High Commissioner for Human A
Rights (OHCHR), at Geneva. Ms. Kamini Jaiswal states
on instructions from Ms. Teesta Setalvad, who is present
in Court, that in future no such letters shall be sent to the
said organization. In light of the statement, we close the
issue at that.
B
SLP (CRL.)...CRLMP.NO.1127/2011
Delay condoned.
No ground is made out for grant of permission to file the
Special Leave Petition. The Special Leave Petition is dismissed
accordingly. C
SLP (CRL)....CRLMP. NO.1519/2011
Delay condoned.
Issue notice returnable on 3rd March, 2011.
SLP(CRL) NO. 1088 OF 2008 D
A note has been submitted by Mr. Raju
Ramachandran, learned amicus curiae, for our perusal. A
copy of the said note has also been supplied to the
Chairman, SIT, who is present in Court today.
List the matter on 3rd March, 2011 at 3.00 p.m.” E
(emphasis supplied)
It is noticed from this order that certain issues were raised in
connection with two letters addressed by Ms. Teesta Setalvad to
Dr. R.K. Raghavan, Chairman, SIT, which were also endorsed to the
Office of High Commissioner for Human Rights Council (OHCHR), F
Geneva. Ms. Teesta Setalvad was called upon to explain the same. In
response to which she had to give assurance to this Court that in future
she will not repeat the act of forwarding letters written by her to SIT to
the said organisation (OHCHR) and on such assurance, the issue stood
closed. G
(t) The matters were then listed on 15.3.2011, when Mr. Raju
Ramchandran, learned Amicus Curiae submitted a note, which had
already been supplied to the Chairman, SIT. The Court directed the
Chairman, SIT to look into the observations made by the Amicus Curiae
against each of the findings made by the SIT. The order reads thus: -
H
46 SUPREME COURT REPORTS [2022] 6 S.C.R.

A “ORDER
SLP(Crl.) No. 1088/2008
A copy of the note submitted by the learned amicus curiae
has already been supplied to the Chairman, Special Investigation
Team (SIT). Let the Chairman, SIT, look into the observations
B made by the learned amicus curiae against each of the findings
given by the SIT on the allegations made in the complaint and
submit his report thereon. If considered necessary, it will be
open to the SIT to carry out further investigations in light
of the observations made in the said note. The report shall
C be submitted by 25th April, 2011.
List the case on 27th April, 2011 at 3.00 p.m.
The note submitted by the learned amicus curiae shall be
kept in a sealed cover.

D …..”
(emphasis supplied)
(u) What is significant to notice is order dated 5.5.2011 passed by
this Court. The same reads thus: -
“ORDER
E
SLP(Crl.) No. 1088/2018
Pursuant to our order dated 15 th March, 2011, the
Chairman, Special Investigation Team (SIT) has filed report
on the further investigations carried out by his team along
F with his remarks thereon. Statements of witnesses as also the
documents have been placed on record in separate volumes. Let
a copy of all these documents along with the report of the Chairman
be supplied to Mr. Raju Ramachandran, the learned Amicus Curiae.
The learned Amicus Curiae shall examine the report,
G analyse and have his own independent assessment of the
statements of the witnesses recorded by the SIT and submit
his comments thereon. It will be open to the learned Amicus
Curiae to interact with any of the witnesses, who have been
examined by the SIT, including the police officers, as he
may deem fit.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 47

If the learned Amicus Curiae forms an opinion that A
on the basis of the material on record, any offence is made
out against any person, he shall mention the same in his
report.
List on 28th July, 2011 at 3.00 p.m.
CRL.M.P. Nos. 21849/2009 and 21850/2009 in SLP(CRL.) No. B
1088/2008
At the request of learned counsel for the applicants,
adjourned to 28th July, 2011 at 3.00 p.m. for preliminary hearing.
SLP(CRL.) NO. 1032/2011 C
Learned counsel for the respondents submit that they do
not propose to file any counter affidavit to the petition.
List the matter for final disposal on 28th July, 2011 at 3.00
p.m.
D
All the reports shall be kept in a sealed cover.”
(emphasis supplied)
In terms of this order, Mr. Raju Ramchandran, learned Amicus
Curiae was granted liberty to examine the SIT report, analyse the same
and give his own independent assessment of the statement of witnesses E
recorded by the SIT and submit his comments thereon. For doing that,
he was also permitted to interact with any of the witnesses, who had
been examined by the SIT including the police officials, as he may deem
fit. In this two-month period, the Amicus Curiae had interacted with all
concerned, as he desired including with Ms. Teesta Setalvad. This
direction was in the nature of permitting the Amicus Curiae to do appraisal F
of the actions of the investigator (SIT) appointed by this Court. This was
an extra effort not only expected from the Amicus Curiae, but also for
reassuring the Court that each allegation in the complaint dated 8.6.2006
is dealt with appropriately in the report submitted by the SIT. The learned
Amicus Curiae, after analysing the entire material including the reports, G
then submitted his report on 25.7.2011.
(v) After the report was submitted by Amicus Curiae on 25.7.2011,
the SIT submitted its further report after investigation including to deal
with the observations of the Amicus Curiae on every aspect noted in his
report. This further report of the SIT was placed before this Court on H
48 SUPREME COURT REPORTS [2022] 6 S.C.R.

A 12.9.2011. This Court being satisfied with the fact that investigation had
been completed by the SIT under its supervision, following the decision
in Bhagwant Singh vs. Commissioner of Police & Anr.21, as well as,
Vineet Narain & Ors. vs. Union of India & Anr.22, Union of India &
Ors. vs. Sushil Kumar Modi & Ors.23, M.C. Mehta (Taj Corridor
Scam) vs. Union of India & Ors.24 and Narmada Bai vs. State of
B
Gujarat & Ors.25, proceeded to pass the following order on 12.9.201126:-
“.….
8. The learned amicus curiae has now submitted his final report
dated 25-7-2011. In light of the above conspectus and the report
C of the learned amicus curiae, the question for determination is the
future course of action in the matter.
9. We are of the opinion that bearing in mind the scheme of
Chapter XII of the Code, once the investigation has been
conducted and completed by SIT, in terms of the orders
D passed by this Court from time to time, there is no course
available in law, save and except to forward the final report
under Section 173(2) of the Code to the court empowered
to take cognizance of the offence alleged. As observed by a
three-Judge Bench of this Court in M.C. Mehta (Taj Corridor
Scam) v. Union of India, (2007) 1 SCC 110, in cases monitored
E by this Court, it is concerned with ensuring proper and
honest performance of its duty by the investigating agency
and not with the merits of the accusations in investigation, which
are to be determined at the trial on the filing of the charge-sheet
in the competent court, according to the ordinary procedure
F prescribed by law.
10. Accordingly, we direct the Chairman, SIT to forward a
final report, along with the entire material collected by SIT,
to the court which had taken cognizance of Crime Report
No. 67 of 2002, as required under Section 173(2) of the
G Code. Before submission of its report, it will be open to
21
(1985) 2 SCC 537 (paras 4 and 5)
22
(1996) 2 SCC 199
23
(1998) 8 SCC 661
24
(2007) 1 SCC 110
25
(2011) 5 SCC 79
26
H (2011) 12 SCC 302 – Jakia Naseem Ahesan & Anr. vs. State of Gujarat & Ors.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 49

SIT to obtain from the amicus curiae copies of his reports A
submitted to this Court. The said court will deal with the
matter in accordance with law relating to the trial of the
accused, named in the report/charge-sheet, including
matters falling within the ambit and scope of Section 173(8)
of the Code.
B
11. However, at this juncture, we deem it necessary to emphasise
that if for any stated reason SIT opines in its report, to be
submitted in terms of this order, that there is no sufficient
evidence or reasonable grounds for proceeding against any
person named in the complaint dated 8-6-2006, before taking
a final decision on such “closure” report, the court shall issue C
notice to the complainant and make available to her copies of the
statements of the witnesses, other related documents and the
investigation report strictly in accordance with law as enunciated
by this Court in Bhagwant Singh v. Commr. of Police, (1985) 2
SCC 537. For the sake of ready reference, we may note that in D
the said decision, it has been held that in a case where the
Magistrate to whom a report is forwarded under Section 173(2)(i)
of the Code, decides not to take cognizance of the offence and to
drop the proceedings or takes a view that there is no sufficient
ground for proceeding against some of the persons mentioned in
the FIR, the Magistrate must give notice to the informant and E
provide him an opportunity to be heard at the time of consideration
of the report.
12. Having so directed, the next question is whether this Court
should continue to monitor the case any further. The legal position
on the point is made clear by this Court in Union of India v. Sushil F
Kumar Modi, (1998) 8 SCC 661, wherein, relying on the decision
in Vineet Narain v. Union of India, (1996) 2 SCC 199, a Bench
of three learned Judges had observed thus (Sushil Kumar Modi
case, (1998) 8 SCC 661:
“6. … that once a charge-sheet is filed in the competent court G
after completion of the investigation, the process of monitoring
by this Court for the purpose of making CBI and other
investigative agencies concerned perform their function of
investigating into the offences concerned comes to an end;
and thereafter it is only the court in which the charge-sheet is H
50 SUPREME COURT REPORTS [2022] 6 S.C.R.

A filed which is to deal with all matters relating to the trial of the
accused, including matters falling within the scope of Section
173(8) of the Code of Criminal Procedure. We make this
observation only to reiterate this clear position in law so that
no doubts in any quarter may survive.”
B 13. In M.C. Mehta v. Union of India, (2008) 1 SCC 407, a
question arose as to whether after the submission of the final
report by CBI in the Court of Special Judge, pursuant to this Court’s
directions, this Court should examine the legality and validity of
CBI’s action in seeking a sanction under Section 197 of the Code
for the prosecution of some of the persons named in the final
C report. Dismissing the application moved by the learned amicus
curiae seeking directions in this behalf, a three-Judge Bench, of
which one of us (D.K. Jain, J.) was a member, observed thus:
“9. … The jurisdiction of the court to issue a writ of continuous
mandamus is only to see that proper investigation is carried
D out. Once the court satisfies itself that a proper investigation
has been carried out, it would not venture to take over the
functions of the Magistrate or pass any order which would
interfere with his judicial functions. Constitutional scheme of
this country envisages dispute resolution mechanism by an
E independent and impartial tribunal. No authority, save and except
a superior court in the hierarchy of judiciary, can issue any
direction which otherwise takes away the discretionary
jurisdiction of any court of law. Once a final report has been
filed in terms of sub-section (1) of Section 173 of the Code of
Criminal Procedure, it is the Magistrate and Magistrate alone
F who can take appropriate decision in the matter one way or
the other. If he errs while passing a judicial order, the same
may be a subject-matter of appeal or judicial review. There
may be a possibility of the prosecuting agencies not approaching
the higher forum against an order passed by the learned
G Magistrate, but the same by itself would not confer a jurisdiction
on this Court to step in.”
14. Recently, similar views have been echoed by this Court
in Narmada Bai v. State of Gujarat, (2011) 5 SCC 79. In that
case, dealing with the question of further monitoring in a case
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 51

upon submission of a report by CBI to this Court, on the conclusion A
of the investigation, referring to the earlier decisions in Vineet
Narain, (1996) 2 SCC 199, Sushil Kumar Modi, (1998) 8 SCC
661 and M.C. Mehta (Taj Corridor Scam), (2007) 1 SCC 110,
speaking for the Bench, one of us, (P. Sathasivam, J.) has observed
as under: (Narmada Bai case, (2011) 5 SCC 79:
B
“70. The above decisions make it clear that though this Court
is competent to entrust the investigation to any independent
agency, once the investigating agency complete their function
of investigating into the offences, it is the court in which the
charge-sheet is filed which is to deal with all matters relating
to the trial of the accused including matters falling within the C
scope of Section 173(8) of the Code. Thus, generally, this Court
may not require further monitoring of the case/investigation.
However, we make it clear that if any of the parties including
CBI require any further direction, they are free to approach
this Court by way of an application.” D
15. Deferentially concurring with the dictum of this Court in the
aforenoted decisions, we are of the opinion that in the instant
case we have reached a stage where the process of monitoring
of the case must come to an end. It would neither be desirable
nor advisable to retain further seisin over this case. We dispose of E
this appeal accordingly.
…..”
(emphasis supplied)
(w) As per the direction given by tis Court, the SIT presented its F
final report on 8.2.2012 before the concerned Metropolitan Magistrate,
who had taken cognizance of Gulberg Society case being CR No. 67/
2002.
(x) It appears that the appellant corresponded with the SIT, as
well as, the Magistrate for supplying certain documents. The Magistrate
G
vide order dated 10.4.2012, directed supply of partial documents and on
16.5.2012, he rejected the request for granting rest of the documents
including enquiry report, further investigation report and statements
enclosed therewith.

H
52 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (y) This led to filing of SLP(Crl.) No. 8989/2012. This petition
was finally allowed on 7.2.2013 being converted into Criminal Appeal
No. 273/2013. The order reads thus: -
“ORDER
Heard all the parties concerned including Mr. Raju
B Ramachandran, learned Amicus Curiae.
Leave granted.
The complainant is the appellant. She filed an application
before the Metropolitan Magistrate claiming supply of all the
C documents filed along with the closure report dated 07.10.2012
by the SIT.
Before considering the claim of the appellant, it is relevant
to refer to the earlier order of this Court dated 12th September,
2011 made in Criminal Appeal No. 1765 of 2011. After going into
D various aspects, this Court issued the following directions to the
SIT:
“Accordingly, we direct the Chairman, SIT to forward a
final report, along with the entire material collected by SIT,
to the court which had taken cognizance of Crime Report
No. 67 of 2002, as required under Section 173(2) of the
E
Code. Before submission of its report, it will be open to SIT
to obtain from the Amicus Curies copies of his reports
submitted to this Court. The said Court will deal with the
matter in accordance with law relating to the trial of the
accused, named in the report/charge-sheet, including
F matters falling within the ambit and scope of Section 173(8)
of the Code. However, at this juncture, we deem it
necessary to emphasise that if for any stated reason the
SIT opines in its report, to be submitted in terms of this
order, that there is no sufficient evidence or reasonable
grounds for proceeding against any person named in the
G
complaint, dated 8-6-2006, before taking a final decision on
such ‘closure’ report, the Court shall issue notice to the
complainant and make available to her copies of the (1)
statements of the witnesses, (2) related documents and (3)
investigation report strictly in accordance with law as
H enunciated by this Court in Bhagwant Singh v. Commr. of
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 53

Police & Anr. [(1985) 2 SCC 537. For the sake of ready A
reference, we may note that in the said decision, it has been
held that in a case where the Magistrate to whom a report
is forwarded under Section 173(2)(i) of the Code, decides
not to take cognizance of the offence and to drop the
proceedings or takes a view that there is no sufficient ground
B
for proceeding against some of the persons mentioned in
the FIR, the Magistrate must give notice to the informant
and provide him an opportunity to be heard at the time of
consideration of the report.”
Pursuant to the above direction, the SIT submitted a final
report to the Court concerned. Before the said Court, the appellant/ C
complainant made an application for supply of all the materials
filed before the said Court. According to the appellant, pursuant
to the directions of the Magistrate though she was supplied certain
materials, still the SIT has not provided all the required documents.
Not satisfied with the order of the learned Magistrate, the appellant D
has filed this appeal.
We have heard learned counsel appearing for the appellant,
State as well as the learned Amicus Curiae.
On going into the earlier direction of this Court as well as
the impugned order passed by the Magistrate, we issue the E
following directions. The appellant is entitled to have copies of
the report dated May 12, 2010 in two volumes, excluding the
Chairman’s comments forwarded to this Court. The appellant is
also entitled to have copies of reports dated November 17, 2010
and April 24, 2011 filed under Section 173(8) of the Criminal F
Procedure Code, 1973.
Since the statements recorded contain signature, it
is clarified that if the signed statements are supplied, the
same shall be treated as statements made under Section
161 of the Code of Criminal Procedure, 1973. G
It is further clarified that the statements recorded in
the inquiry shall only be used in the proceedings relating
to the complaint dated June 8, 2006 filed by the appellant
and shall not be used for any other purpose or in connection
with any other case. We also clarify that the present order
H
54 SUPREME COURT REPORTS [2022] 6 S.C.R.

A is confined to the facts and circumstances of the complaint
dated 8th June, 2006 and shall not be treated as a precedent,
in any other case.
The appellant is granted eight weeks’ time for filing the
protest petition from the date she gets the required copies as
B mentioned above.
In view of the above conclusion and direction, the impugned
orders of the learned Magistrate dated 16.07.2012 and 27.11.2012
are set aside to the extent mentioned above. The appeal is disposed
of in the above terms.”
C (emphasis supplied)
This order, besides issuing directions, as prayed regarding
furnishing of documents, also clarified the position that the statements
recorded by the SIT pursuant to the investigation undertaken after
27.4.2009 in respect of the allegations in complaint dated 8.6.2006, be
D treated as statements of witnesses under Section 161 of the Code, which,
however, cannot be used for any other purpose including the trial of
Gulberg Society case being CR No. 67/2002.
(z) Only after getting all the material accompanying the report,
appellant – Zakia Ahsan Jafri proceeded to file a protest petition on
E 15.4.2013 before the Metropolitan Magistrate. The Magistrate, after
considering the protest petition and the final report of the SIT dated
8.2.2012, by a speaking order dated 26.12.2013, rejected the protest
petition filed by appellant and accepted the final (closure) report filed by
the SIT and passed consequential order.
F (aa) Against this decision, appellant carried the matter before the
High Court by way of the stated criminal revision application, which
came to be disposed of vide impugned judgment and order dated
5.10.2017, with liberty to appellant to agitate the issue of further
investigation upon availability of new material/information. Against the
said decision, the present appeal from special leave has been filed.
G
(bb) To complete the narration of relevant facts, we may also
advert to the order passed by this court on 13.4.2017 in W.P.(Crl.) No.
109/2003, commending the efforts of the SIT as well, while relieving the
Chairman of the SIT from his responsibility. The said order reads thus: -
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 55

“O R D E R A
1. While placing on record our appreciation for the services
rendered to this Court by the learned Amicus Curiae, we are
immensely satisfied with the manner in which the proceedings
had been conducted in all the trials, resulting in the conclusion of
all but one trial. B
2. Learned Amicus Curiae has made a request on behalf of Shri
R.K. Raghavan, the Chairman of the Special Investigation Team
(SIT), seeking to withdraw from the SIT hereinafter, on account
of his ill health. We appreciate the request made, and release him
from his responsibility as the Chairman of the SIT. C
3. A similar request has been made for the release of Shri K.
Venkatesham. The instant request is based on the fact, that Shri
K. Venkatesham has since been appointed as Commissioner of
Police, Nagpur, and therefore, his onerous responsibility leaves
him limited time to deal with other issues. For the reasons brought D
to our notice, we hereby 1 relieve Shri K. Venkatesham from the
duties vested in him as a member of the SIT.
4. In the above view of the matter, we would request the remaining
member of the SIT, namely, Shri A.K. Malhotra, to continue to
discharge the responsibility hereto before entrusted to the SIT, E
himself. Shri A.K. Malhotra shall furnish quarterly reports to this
Court.
5. Post for hearing in the last week of July, 2017.”
SUBMISSIONS OF THE APPELLANT
F
6. (a) The thrust of the argument was broadly two pronged. The
first being the SIT has jumped to the conclusion that no offence is made
out against the persons named in the complaint/protest petition despite
material and statements collated by it during investigation indicating to
the contrary. Additionally, the failure of the SIT to investigate into crucial
allegations/material referred to in the protest petition. G
(b) The second is about the failure of the Metropolitan Magistrate
in exercising the powers vested in him including to take cognizance of
the offence and in not directing further investigation by the SIT in respect
of certain matters. Even the High Court has committed the same fatal
error. Reliance is placed on Vishnu Kumar Tiwari vs. State of Uttar H
56 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Pradesh & Anr.27, to buttress these points. As held in Abhinandan
Jha & Ors. vs. Dinesh Mishra28, there is no obligation on the Magistrate
to accept the final report. It is open to the Magistrate to take cognizance
if he is so satisfied by invoking powers under Section 190(1)(c) of the
Code including to direct further investigation.
B (c) The appellant in the protest petition had articulated broad
grounds on which final SIT report was being opposed. The same read
thus: -
“31. The Petitioner submits that the Closure Report needs to be
rejected and the Protest Petition allowed on the following grounds,
C which are in addition to the reasons and grounds set out elsewhere
in this Petition:
a) The Documents and annexures as submitted by the SIT
along with the closure report make out a clear case for taking
cognizance against all the accused;
D b) Without prejudice to the above, the SIT while investigating,
has not examined all the necessary witnesses or called for all
the necessary documents as set out in the Petition. In view of
this the Investigation is defective and incomplete. Further
investigation therefore needs to be ordered to arrive at the
E whole truth;
c) Without prejudice to the above, the SIT’s analysis of the
statements of witnesses and other documents is hopelessly
biased, inaccurate, and suffers from total non application of
mind.
F d) SIT has taken great pains to disbelieve and discredit any
witnesses who have spoken against the Accused No.1 or for
that matter against any accused. Besides, the witnesses who
were favouring Accused were not confroned with relevant
documents and statements.
G e) SIT was required to ascertain whether there is any substance
to proceed against the accused persons and once it comes to
the conclusion that such substance exists it should have
proceeded to file a Charge Sheet. Such substance exists against
27
(2019) 8 SCC 27 (paras 7, 17, 27, 28, 32, 33 and 42)
28
H AIR 1968 SC 117 = 1967 (3) SCR 668 (at page 678) (para 15 and 21)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 57

all the accused. There are witnesses and documents to cast A
reasonable doubt against the conduct of all the accused and
pointing towards their culpability. For instance, the statements
of senior officers like RB Sreekumar, Rahul Sharma, Sanjiv
Bhatt as well as the Tehelka tapes (validated by the Sessions
Court) are enough to file a charge sheet/ take cognizance.
B
Instead of doing this, the SIT has acted like a super court
dissecting every bit of evidence, turning and twisting it, ignoring
relevant material and accepting uncorroborated irrelevant
material to somehow whitewash this entire exercise. Worse
the SIT has deliberately and manifestly ignored the huge
voluminous evidence that is available on record. SIT has acted C
beyond its jurisdiction as an Investigating Agency. In fact this
Hon’ble Court ought to disregard the SIT Report altogether
and look at the gathered evidence independently to arrive at
the conclusion that cognizance ought to be taken.
f) Apart from anything it needs to be verified whether the D
Closure Report is based on a collective application of mind by
SIT as a whole or not. Large number of documents/ statements
are in Gujarati. Admittedly they have not been translated.
Majority of the SIT members cannot read Gujarati. In order to
decide the weight to be attributed to each of the statements/
document it was necessary that the SIT, as a collective applied E
its mind to these documents. In the absence of any translations
it is not clear as to how the SIT has come to the conclusions it
has arrived at.
g) The Petitioner submits that against each of the accused
there is sufficient material to take cognizance of offences of F
conspiracy and abetment, subversion of public justice,
destruction and suppression of evidence, of rioting, theft,
robbery, murder, attempt to commit murder, etc. Besides,
against many of the accused Charge Sheets should have also
been filed for hate speech. G
h) SIT should have considered that once a public servant is
held to be negligent in performing his duties, and if any criminal
offence has taken place, he ought to be automatically charged
with abetment. This is so because the definition of abetment
includes acts as well as omissions. SIT has come to the H
58 SUPREME COURT REPORTS [2022] 6 S.C.R.

A conclusion that Accused Nos - 33 then Joint Commissioner of
Police MK Tandon and then DCP Zone IV PB Gandia, were
negligent in their duties: Having arrived at this conclusion, SIT
had no option but to charge them with the criminal offence of
abetment at least as the negligence did result in offences being
committed or not being prevented.
B
i) SIT should have held that the statements and the documents
which have been gathered make out a clear case of conspiracy
against all including Accused No. 1.
j) The Petitioner submits that as has been held by various courts
C a conspiracy is usually hatched in secrecy and very rarely there
is direct evidence of this. The offence can only be proved
largely from inference drawn from acts or illegal omissions
committed by the conspirators. Even at the time of trial, there
need not be proof of express agreement. The agreement can
be proved by necessary implication. Besides, it is not necessary
D that all the conspirators participate in all the offences resulting
from the conspiracy though they would be liable for each one
of them.
k) In the present case direct evidence exists in terms of Sanjiv
Bhatt ‘s testimony about at least one part of the conspiracy
E being hatched at the meeting held on 27.2.2002. Once this
evidence is available it is for the trial court to decide what
weight to attribute to it. It is not for the Investigating Agency
to dissect this evidence with a view to discredit the same.
l) In any event, without prejudice to whether Mr. Modi made
F the statement attributed to him in the meeting on 27.2.2002 the
fact that the meeting took place is not disputed. One has to
therefore to look at the subsequent and prior events to decide
as to what could have transpired at this meeting. It is obvious
that as the event reflect a conspiracy was hatched at this
G meeting to allow the people to vent their anger (justified or
otherwise, instigated or otherwise, organized or otherwise) and
not to intervene when offences are committed. In addition the
forces were encouraged to abet this ire and to assist the people
in venting it and at times to participate in it. Anyone who tried
to maintain law and order was penalized. The conspiracy was
H very clear and played out over the next few days.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 59

m) The Petitioner further submits that the offences of A
conspiracy and abetment along with the responsibilities of public
servants have, independently or together introduced the concept
of command responsibility under our criminal law. Therefore
any public servant shall be criminally responsible for crimes
committed by forces or officers under his or her effective
B
authority and control, as a result of his failure to exercise control
(preventive or punitive) over these crimes. This would include
the Chief Minister/ Home Minister, other Ministers, police and
bureaucratic top brass. This is more so since in the present
case they knew or owing to the circumstances at the time,
should have known that the forces were committing or about C
to commit such crimes. It is further because the said public
servants failed to take all necessary and reasonable steps to
prevent or repress their commission or to submit the matter to
the competent authority for investigation or prosecution.
n) The Chief Minister/ Home Minister was directly in charge D
of law and order in the State. Under his aegis crimes were
committed. No steps were taken to curb these crimes. Just to
give an example, preventive arrests were essential once the
Bandh call was made. These are required for prevent
commission of offence. No such arrests were made making
the Home Minister downwards all responsible for crimes having E
been committed for failure to carry out preventive arrests.
Besides, if instructions were given to make preventive arrests
and they were not carried out then failure to take steps against
the officers for not having done preventive arrests itself will
amount to failure to discharge duties as a public servant and F
abetment.
o) SIT has misdirected itself in looking at the allegations and
events in a piecemeal manner rather that a holistic manner.
What was needed to be done was to look at events prior to
27.2.2002, on 27.2.2002 and subsequent to 27.2.2002 to see if
G
a common thread emerges. If this was done an obvious and
apparent link between all these events and conduct of the
accused comes out which would be sufficient to charge them
with conspiracy and abetment, apart from other offences.
p) We further submit that offences under S.153 A and B have
been made out against accused who were charged with the H
60 SUPREME COURT REPORTS [2022] 6 S.C.R.

A same in our complaint and the SIT ought to have filed Charge
Sheets in respect of the same.”
(d) Besides the aforesaid points, in the course of arguments and
in the written submissions, it has been urged as follows: -
(1) It is urged that Article 21 of the Constitution not only guarantees
B protection of law to all, but it also includes corresponding obligation
on the State to fairly investigate the criminal cases and prosecute
the persons involved in commission of such crime as per the law.
The provisions in the form of the Code is the procedure established
by law within the meaning of Article 21. In the present case, the
C SIT failed to investigate into crucial matters in the spirit of mandate
of Section 156 of the Code and it is also failure of the Magistrate
in exercise of powers to the fullest extent predicated in Section
173 read with Section 190, in particular, sub-Section (1)(b) of the
Code. Even the High Court fell foul of the same error while
dealing with the revision application of the appellant.
D
(2) The complaint dated 8.6.2006 was only a piece of information.
The stand taken by the SIT that allegations beyond complaint
cannot be looked at, is legally untenable. If such a plea is
countenanced, it would result in equating with, or limit the enquiry
as in the case of scrutiny of a plaint in a civil suit, wherein the
E plaintiff is bound by the averments/contents of the complaint. The
order passed by this Court directing the SIT to “look into” the
complaint, in no way constricted the jurisdiction of the Magistrate
to direct scrutiny of allegations, which come to the fore, consequent
to filing of protest petition.
F (3) The fact that appellant – Zakia Ahsan Jafri was relegated by
this Court to file protest petition if the situation so warranted, was
not to curtail the powers of the Magistrate including to direct further
investigation. In fact, the order of this Court indicates that it was
open to the Magistrate to exercise all powers vested in him for
dealing with the issues that may arise upon presentation of final
G
SIT report and protest petition by appellant – Zakia Ahsan Jafri.
(4) It is significant to note that the complaint dated 8.6.2006 referred
to matters not limited to events unfolding in and around the Gulberg
Society crime, but also about the series of activities and actions
pointing towards the instructions being issued from the highest
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 61

authority bordering on conspiracy and abetment. The order of A
this Court dated 7.2.2013 reinforces the stand taken by the
appellant that the Magistrate had ample power to issue directions
to SIT for further investigation into the relevant matters including
referred to in the protest petition. Reliance was placed on
Abhinandan Jha29 and Popular Muthiah vs. State represented
B
by Inspector of Police30.
(5) It is urged that it was the duty of the Magistrate to issue
process and only after recording the evidence of the concerned
witnesses, a conclusion could be reached about the truthfulness
of the version and the piece of evidence in support of the
accusation. Reliance was placed on State of Gujarat vs. Afroz C
Mohammed Hasanfatta31.
(6) According to the appellant, following issues have not been
dealt with by the Magistrate and the Gujarat High Court:
(i) Provocative behaviour was followed up by mass mobilisations D
and hate speech on 27.2.2002 as part of the wider conspiracy.
As early as 12:30 p.m. on 27.2.2002, a State Intelligence
Bureau32 officer communicated to the headquarters that there
were reports that some dead bodies of Godhra victims would
be brought to Kalupur Station in Ahmedabad and incidents will
occur in Ahmedabad city and preventive action had to be taken. E
Home Department at Gandhinagar received more than eight
messages intimating about the Godhra incident, the VHP call
for a bandh and about violence taking place in Valsad and other
places.
(ii) Detailed documentary evidence from the SIT investigation F
papers pieced together meticulously in the protest petition
reveals that SIB Messages had noted systematic and violent
mobilisations all over the State on 27.2.2002 within minutes of
the Godhra tragedy. Despite these warnings, neither the Home
Department nor the law-and-order machinery made preventive G
arrests or protected innocent lives. Kar Sevaks with saffron
scarves continued shouting anti-Muslim slogans after incident;
29
supra at footnote No. 28
30
(2006) 7 SCC 296 (paras 21 and 54)
31
(2019) 20 SCC 539 (paras 16, 17, 22 and 39)
32
for short, “SIB” H
62 SUPREME COURT REPORTS [2022] 6 S.C.R.

A more VHP workers gathered at spot and even after curfew
had been declared at 10 a.m. Even after deployment of SRP
and Railway police reinforcements, attempts to burn Muslim
shops was taking place at Godhra. Since the investigation of
the Godhra incident was by the Railway Police, it was their
responsibility to deal with dead bodies.
B
(iii) By about 1.00 p.m. in the afternoon violent and murderous
attacks at Vadodara and Anand had taken place and by the
evening the same had spread far and wide across the state.
(iv) VHP Press Release carried exaggerated accounts of the
C Godhra incident. By the evening and late night of 27.2.2002,
SIB messages from Godhra to Bhavnagar, Mehsana to
Viramgam (far flung districts of Gujarat) recorded aggressive
mobilization and provocative speeches being made exhorting
the mob/citizens to attack Muslims.

D (v) An analysis of phone call records officially procured by
former IPS officer – Mr. Rahul Sharma and presented to the
Nanavati-Shah Commission, had been made and evidence of
elected representatives talking to some of the offenders/
accused etc. was presented to the SIT. The following aspects
were not substantively investigated. For example:
E
(1) The mobile phone records show that Mr. Bhatt, named
in the Zakia Jafri Complaint dated 8.6.2006, was in touch
with doctors from outside the Godhra city, after which post
mortems of the Godhra victims were carried out in the open
in the Railway Yard.
F
(2) The mobile phone records also had illustrative details of
the phone call records of then Additional Commissioner of
Police - Mr. Shivanand Jha. That has not been investigated.
(3) Similarly, the mobile phone call records of Mr. Dinesh
Togadia etc. of the VHP and other functionaries, had been
G
mentioned but remained uninvestigated.
(4) The mobile phone call records dated 27.2.2002 of
Dr. Praveen Togadia, International General Secretary, VHP,
similarly remained to be investigated.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 63

(5) Ahmedabad city recorded 14 Incidents of targeted A
Violence even as the VHP and its members continued
making incendiary and inflammatory speeches.
(6) The Gujarat Police Manual and Booklet to Prevent
Communal Violence (specific to Gujarat) lay down
meticulous SOPs (Standard Operating Procedures) - that B
were not followed at all in the wake of the Gujarat tragedy.
(7) Despite the SIT papers containing documentary
evidence of such more instances of attacks and aggression
including hate speech, the SIT concealed these in its final
report and deliberately avoided recording of any conclusion C
therein.
(e) The SIT has clearly failed to take into account the material
appended to the complaint dated 8.6.2006, such as report titled “Crimes
and Humanity” published in 2002 by the Concerned Citizens Tribunal 33,
headed by former Judges of this Court and affidavits filed by the officials D
of the State before the Nanavati-Shah Commission. The narrative
discernible from this material has not been examined by the SIT in its
proper perspective despite suggestive of strong case for investigation
into a systemic and widespread conspiracy of subversion and inaction
by law enforcement, bureaucracy and elected representatives entailing
in systemic outbreak and spread of targeted violence across the State. E
Even the NHRC had to step in to force the State to take corrective
measures and ensure justice to the riot victim survivors.
(f) It was urged that the SIT was expected to follow the procedure
prescribed by law while dealing with the materials/statements collated
during investigation and more particularly, relied upon by the appellant. F
As a matter of fact, the SIT failed to investigate into the crucial aspects
referred to in the protest petition. It is submitted that the rationale for
protest petition has been expounded in Abhinandan Jha34 and Bhagwant
Singh vs. Commissioner of Police & Anr.35 It is not only open to the
informant to file protest petition, but also to any injured person on all G
aspects concerning the complicity of concerned persons in the
commission of alleged crime. That is what was perceived by this Court

33
for short, “CCT”
34
supra at footnote No. 28
35
supra at footnote No. 21 H
64 SUPREME COURT REPORTS [2022] 6 S.C.R.

A while disposing of the special leave petition filed by the appellant in the
earlier round, vide judgment and order dated 12.9.201136. The real intent
and purpose of the direction issued by this Court in the earlier round has
been whittled down by the SIT, as well as, by the Courts in not examining
all aspects raised by the appellant by way of protest petition.
B (g) In support of this grievance, emphasis is placed on the nature
of enquiry done by the SIT in respect of Tehelka Sting Operation, and in
not examining the crucial witnesses. The contents of sting operation
were clearly indicative of the genesis of communal violence, which
transformed lava erupting from a volcano, destroying the fertile ground.
The SIT had glossed over crucial materials, such as statement of Dhawal
C Jayantilal Patel, the then VHP District Convener, Sabarkantha and Anil
Patel, VHP Vibhag Pramukh, Sabarkantha on the specious plea of the
efficacy of the extra judicial confession of another person. Reliance is
placed on the decision of this Court in H.N. Rishbund & Anr. vs. State
of Delhi37 and Gura Singh vs. State of Rajasthan38.
D (h) The Courts (Magistrate/High Court) have failed to deal with
the allegations pertaining to sting operation indicative of build-up before
the incident and support of the high authority. Allegations against
Mr. Anil Patel were not investigated nor was he arrested, despite the
extra judicial confession on record to indicate his complicity. No question
E has been put to him regarding Tehelka Tape and its contents. Similarly,
the Magistrate has erred by going into the veracity/truthfulness or
otherwise of the material on record. That could be done only at the
stage of trial. The limited role of the Magistrate at this stage is to prima
facie examine the material on record to find out the case of reasonable
suspicion to take cognizance of the crime against the named offenders,
F as held in S.K. Sinha, Chief Enforcement Officer vs. Videocon
International Ltd. & Ors.39.
(i) It is further urged that in the interests of justice, as the detailed
protest petition alongwith exhaustive documentary evidence was
presented, the Magistrate ought to have taken it as a complaint and
G directed further investigation in respect of issues raised therein. In the
protest petition, the complainant has dealt with whole series of events
36
supra at footnote No. 26
37
AIR 1955 SC 196 = 1955 1 SCR 1150 (at pages 1155-1157)
38
(2001) 2 SCC 205 (para 6)
H 39
(2008) 2 SCC 492 (para 22)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 65

and supporting documents and not a single or stray document from the A
investigation record, and relying on the totality of the circumstances, the
allegation regarding larger criminal conspiracy has been set forth. It is
her case that the incident of violence across the State of Gujarat after
Godhra incident on 27.2.2002, was encouraged and condoned and overtly
supported by the State Government owing to their actions and omissions
B
on the part of the State constituting criminal conspiracy. The actors in
the said criminal conspiracy were broadly in four groups. To wit, political
establishment, bureaucrats, police officers and private organisations and
individuals.
(j) It has been further asserted that the Magistrate and the High
Court have failed to deal with the following aspects in the context of C
issues raised in the protest petition: -
(i) The first component is about conspiracy in regard to the prelude
and build-up before the Godhra incident on 27.2.2002. It has been
mentioned in the protest petition that the establishment allowed
generation of deepened feeling of hatred towards a particular D
community, as can be discerned from the SIB record/messages
from at least 12.2.2002 onwards and also transcript of the Tehelka
Sting Operation.
(ii) The second is about the inaction of the named offender/political/
police/bureaucrat functionaries after being intimated about Godhra E
incident, hate speeches and mob mobilizations across the State on
27.2.2002.
(iii) The third is about the inaction/non-response of all the authorities
including police, fire brigade, other functionaries, by not promptly
deploying Army, imposing curfew and taking preventive measures F
and making prompt arrests of the culprits after outbreak of mass
violence across the State post 27.2.2002.
(k) The ingredients of the conspiracy had been outlined in the
complaint dated 8.6.2006 and restated with further details and evidence
in the protest petition in the shape of the actual official messages indicative G
of systemic build-up of communal tension before 27.2.2002. The
transcript of Tehelka Sting Operation reinforces the facts stated in the
said messages. Notably, the tapes of the sting operation have been
authenticated by the CBI consequent to direction given by the NHRC
and in fact, used by SIT in the cases investigated by them pursuant to
H
66 SUPREME COURT REPORTS [2022] 6 S.C.R.

A the direction of this Court. These crucial aspects are suggestive of larger
criminal conspiracy. However, the same had been conveniently glossed
over by the SIT.
(l) To buttress the usefulness of Tehelka Sting Operation, the
appellant is relying on the transcripts of Mr. Anil Patel, VHP Vibhag
B Pramukh, Sabarkantha, Mr. Deepak Shah, member of BJP, Vadodara
Unit, Mr. Haresh Bhatt, VHP and Bajrang Dal member, Mr. Rajendra
Vyas, President, VHP, Ahmedabad City, Mr. Ramesh Dave, Kalupur
Zila Mantri, VHP and Babu Bajrangi, a Bajrang Dal activist to urge that
these were in the nature of extra judicial confessions and the persons
should have been proceeded for appropriate offence in the context of
C their utterances and disclosures. These transcripts were so revealing
that no person with ordinary prudence would disagree with the stand of
the appellant that the same are replete with strong suspicion, warranting
penal action. The Magistrate, however, disregarded this sting operation
by relying on the dictum of this Court in Piara Singh & Ors. vs. State
D of Punjab40. Whereas the issue regarding admissibility of extra judicial
confession is a triable issue and cannot be answered at this stage.
(m) As a matter of fact, Mr. Ashish Khaitan, the author/maker of
the sting operation, had been examined as prosecution witness by the
SIT including in Gulberg Society case being CR No. 67/2002. Even for
E this reason, it was not open to the SIT or the Courts to disregard the said
material at this stage. By disregarding such tangible and clinching material,
the SIT had attempted to protect the named offenders.
(n) It is further urged that the SIT has not even chosen to appeal
against acquittals in Gulberg Society case being CR No. 67/2002 for
F reasons best known to them. In substance, there was clear evidence
regarding conspiracy and corroborated by sting operation and the affidavit
of Mr. R.B. Sreekumar, an IPS officer [the then Additional Director
General of Police (Intelligence)], which have been conveniently discarded
by the SIT and by the Courts.

G (o) The requisition of the NHRC order by the SIT (directing CBI
to authenticate Tehelka Sting Operation and the CBI’s detailed report
on the same), was followed by a submission of the entire complete
authenticated transcripts of the Tehelka Sting Operation by the appellant
to the SIT investigating her original complaint (dated 8.6.2006) vide letter
40
H (1977) 4 SCC 452
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 67

dated 24.3.2010. In that communication, the appellant also mentioned in A
detail, various aspects of the matter that need to be thoroughly
investigated by the SIT, given the evidence in these extrajudicial
confessions of a wider conspiracy and abetment to widespread targeted
crimes. The detailed letter by the appellant to the SIT indicating the
issues that need to be investigated, is a testimony of the fact that the
B
investigating agency is being urged since 2010 to investigate the Sting
Operation thoroughly. The complete transcripts, total 490 pages, had
been provided to the SIT by the appellant.
(p) In the detailed authentication document of the CBI, the CBI
officer authenticates the Sting Operation after forensic voice-tests were
performed on those on whom the Sting Operation was conducted. In the C
said Authentication Report, the CBI officer says:
“13. On the basis of the above said enquiry, following conclusions
can be drawn:
i. The recordings in the ‘Sting Operation’ are found to be D
authentic as per Forensic Science Laboratory Report.
ii. Most of the concerned persons appearing in the Sting
Operation have admitted that they were contacted and that
they have talked on the subject of Gujarat Riots, which has
been recorded during the sting operations. E
14. The original statements and the laboratory report are enclosed
herewith. The P.E. is being closed.
15. Special Investigation Team (SIT), formed by Hon’ble Supreme
Court to further investigate certain Gujarat riot cases, vide their
letter dtd.03.02.2009 and reminder dtd. 28.04.2009 have asked F
for equipment and recordings collected by the CBI. This is for
information of NHRC and comments/ instructions, if any.
16. This is for the information of NHRC and necessary action at
their end please against High Court order.”
(q) Meanwhile, the SIT appointed by this Hon’ble Court, whose G
mandate of investigation was extended, to also investigate the wider
conspiracy into the violence that rocked the State of Gujarat in 2002,
recorded the statement of Mr. Ashish Khaitan on 27.8.2009, the reporter
who carried out the Sting Operation.
H
68 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (r) In a parallel development that further gives authenticity and
legitimacy to the Sting Operation, Mr. Ashish Khaitan deposed as
prosecution witness (PW-322) in the Naroda Patiya case on 19.12.2011.
On 29.8.2012, in its judgement convicting 31 persons of the widespread
massacre at Naroda Patiya, the Special Sessions Judge made strong
observations accepting the Sting Operation as corroborative evidence.
B
On the basis of this validation, two persons were convicted in this case.
(s) Notably, the SIT appointed by this Hon’ble Court who
investigated the Zakia Jafri complaint dated 8.6.2006 was/is also the
prosecuting agency in the trials transferred to the SIT for further
investigation including the Naroda Patiya and Naroda Gaam trial. It is,
C therefore, inexplicable and clear evidence of the compromised nature of
the SIT investigation despite being the agency entrusted with a sensitive
task by this Court, who failed to thoroughly investigate the leads and
implications laid out in the conversations/extra-judicial confessions
revealed in Tehelka Sting Operation.
D (t) It has been urged that relevant facts noticeable from the
transcript of the Sting Operation regarding manufacture of arms and
bombs, bringing in the same from neighbouring States and other aspects
of wider conspiracy elucidated therein, have been completely ignored
by the SIT and also by the Courts. The transcripts also reveal the
E involvement of senior officers of the Court, Advocates and public
prosecutors, whose names are mentioned in the SIB messages in the
build-up and communal mobilizations and reportedly involved in the
intimidation and browbeating of senior serving officer (Mr. R.B.
Sreekumar) prior to his deposition before the Nanavati-Shah Commission.
It was, therefore, essential that the Magistrate should have directed further
F investigation into these aspects.
(u) The original complaint submitted by appellant - Zakia Ahsan
Jafri relies on slew of 23,000 pages of official record and non-official
documents and records indicative of inaction/failure of public servants
and elected representatives bordering on carefully woven conspiracy.
G
(v) There was message indicating stockpiling of arms and also
mob-gathering with impunity from the early morning of 28.2.2002 when
the dead bodies were brought to Sola Civil Hospital, Ahmedabad and
breaking out of violence. However, no police force was deputed.
Aftermath violence, there was no response from the fire brigade despite
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 69

45 distress calls being made by hapless citizens, who were attacked by A
armed mob intending to kill and burn them. No arrests were made of the
aggressors, much less preventive arrests.
(w) The loss of life in such mass violence was mainly of persons
belonging to minority community. The unruly mob was emboldened
because of the Bandh call supported by the State. The women and B
children were also not spared during such violence and the police remained
a silent spectator.
(x) After the outbreak of violence post-Godhra, SIB report(s)
submitted by Mr. R.B. Sreekumar dated 24.2.2002, 15.6.2002, 20.8.2002
and 28.8.2002 to the Home Department were deliberately ignored. These C
reports had suggested strong corrective measures for restoration of
normalcy.
(y) Even the report submitted by Mr. E. Radhakrishnan, an IPS
officer (the then Deputy IG) to the Director General of Police, as late as
August, 2002, recommending remedial measures, was not acted upon D
despite the spread of communal violence reported from 993 villages and
151 towns covering 284 police stations (out of 464 police stations) spread
over to 154 Assembly constituencies out of 182 Assembly constituencies.
(z) The statements made by Mr. Maniram, ADGP (Law and
Order), Mr. P.C. Pande, the then Commissioner of Police, Ahmedabad, E
Mr. K. Chakravarthi, Director General of Police, Gujarat and Mr. Ashok
Narayan, Additional Chief Secretary (Home), reveal the deliberate
inaction and failure of the high officials and elected representatives. To
aggravate the situation, there was intentional delay in deployment of
Army and declaring curfew at the earliest opportunity.
F
(aa) The SIT has also not enquired into the matters highlighted in
the report of NHRC nor made any attempt to record any statement of
officials or the Chairperson of the Commission. The NHRC report refers
to several aspects including experience of a sitting Judge of the High
Court owing to the violent mob entering his premises. The Statement of
the Judge had not been recorded by the SIT. G
(bb) The Courts have also failed to deal with the material regarding
provocative behaviour followed by mass mobilizations and hate speeches
post 27.2.2002 as part of the wider conspiracy. The SIB officer had
communicated to the headquarters as early as 12:30 pm, on that day
itself, that there were reports that some dead bodies of Godhra victims H
70 SUPREME COURT REPORTS [2022] 6 S.C.R.

A would be brought to Kalupur Railway Station, Ahmedabad, which may
result in causing communal disturbance all across. Despite such warning,
neither the Home Department nor the law-and-order machinery took
preventive measures to protect the innocent lives and more so, even
after growing violence and murderous attacks at Vadodara and Anand
happening by the evening and spreading across the State. On the other
B
hand, no action had been taken against VHP office bearers for issuing
press release exaggerating the accounts of Godhra incident.
(cc) It was urged that the final (closure) report was erroneously
tendered by the SIT before the Metropolitan Magistrate and not in the
sessions trial concerning Gulberg Society case being CR No. 67/2002.
C
(dd) The SIT also failed to thoroughly investigate the messages
of the SIB, which formed part of the affidavit of Mr. R.B. Sreekumar,
and was made available to the SIT. The contents of these messages
support the allegation of build-up of a conspiracy even prior to 27.2.2002,
in respect of which no corrective steps had been taken by the
D administration and persons in authority.
(ee) There was enough material with the SIT regarding the factum
of hasty post-mortems carried out on the dead bodies in open Railway
yard under the directions from the highest authority, so as to ignite
emotions giving fillip/impetus to build up and cause communal disturbances
E and widespread violence. Not only that, the charred bodies of dead persons
were caused to be paraded and allowed to be taken by private person
(VHP office bearer) in open vehicles from Godhra to Ahmedabad without
observing essential protocols for the same purpose. Relying on Rule 223
in the Gujarat Police Manual, it was urged that despite the prohibition,
F the photographs of mutilated bodies were taken and no enquiry in that
regard has been made. None of the statements recorded by the SIT
explain as to why such photographs were allowed.
(ff) There is contradiction in two different reports submitted by
the SIT before this Court and support the allegation of preparation for
G organising widespread violence after Godhra event.
(gg) The authorities produced the relevant contemporaneous
official record after lapse of almost nine years, although it was very
much available with the Government even earlier when it was required
to produce before the concerned forum. That was not done on the
specious plea of non-availability of such a record.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 71

(hh) No investigation has been done regarding the factum of A
intentional delay in imposing curfew and to bring in Army including for
its immediate deployment by providing logistical assistance to control
the overwhelming situation across the State of Gujarat, in particular,
immediately after the carnage in the morning of 27.2.2002 at Godhra.
(ii) The SIT has not properly dealt with the role of Mr. M.K. B
Tandon and his acts of commissions and omissions warranting penal
action.
(jj) There was enough material to suggest that the police
administration was under complete control of political heavyweights and
Ministers under instructions from the top (Chief Minister). That was C
evident from the presence of the Ministers in the police Control Room
and issuing directions to the local police.
(kk) According to the appellant, the facts emerging from the
materials referred to in the protest petition are so telling that no other
inference except that the named persons had committed offence, can D
be drawn, particularly regarding larger conspiracy. In that, no preventive
measures were taken either before the episode of Godhra on 27.2.2002,
or even thereafter, despite the seriousness and sensitivity of the situation.
No preventive arrests were made and if at all done in two cases, it was
against the persons belonging to minority community. Further, when the
violence erupted across the State, no effort to douse the emotions of the E
violent mob was seen to be taken by the persons in authority, both by
political dispensation and bureaucracy and police. The persons indulging
in the gruesome activity were not arrested, much less stopped from
doing so. Furthermore, when it came to investigation, ‘A’ Summary
Report(s) came to be filed in most of the cases, which was a clear F
reflection on the failure of police administration, investigating such
horrendous crime. Intriguingly, the persons who were arrested by the
local police, were released on bail or interim bail obviously because of
the (intentional) lackadaisical approach of the public prosecutor(s). Not
only that, the investigating machinery opted to accept the version of the
offender as a gospel truth and doubted the statements of the victims of G
crime. The malice not only pervaded in the local police, but also in the
manner of investigation by the Court appointed SIT. No investigation
whatsoever has been done regarding pre-Godhra incident conspiracy,
carrying funeral procession on the basis of instructions to officials and
handing over dead bodies for that purpose to private persons (Hasmukh H
72 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Patel, Secretary of the Eastern Wing of VHP, Ahmedabad and Jaideep
Patel, Gujarat Secretary of VHP, Naroda Gao/Gaam, Ahmedabad)
including issuing instructions from the top (Chief Minister) to all the
officials to give free hand to the mob. Even post Godhra incident,
conspiracy before the unfolding of the violence across the State on
28.2.2002 has not been taken note of nor any FIR registered in that
B
behalf, much less any investigation done by local police or for that matter,
Court appointed SIT.
(ll) The SIT, as well as, the Courts have dealt with statements of
the concerned persons recorded by the SIT as gospel truth and have
arrived at conclusion on that basis. This, amongst others, is a manifest
C error committed in dealing with the issues on hand. The Magistrate while
dealing with the protest petition and the final report ought to have applied
the scale of strong suspicion emanating from the materials collected by
the SIT. And that was enough to proceed against the perpetrators. From
the undisputed document(s), even a layman would be able to decipher
D that a case of strong suspicion about the involvement of the named persons
in the commission of offence has been clearly made out. Reliance is
placed on State of Bihar vs. Ramesh Singh41 and State (Delhi Admn.)
vs. I.K. Nangia & Anr.42 to urge that if suspicion can be deduced from
the record, that would be enough for Magistrate to take cognizance. It is
further urged that even if it is not a case of strong suspicion, the Magistrate
E was obliged to direct the SIT to do further investigation on relevant
aspects/allegations including in respect of matters outside the complaint,
but specifically noted in the protest petition. It was the bounden duty of
the Magistrate to so direct, and also primary responsibility of the SIT to
investigate every piece of information which had come to the fore by
F way of complaint or the protest petition.
(mm) It is submitted that the larger conspiracy material was not
investigated in Gulberg Society case being CR No. 67/2002 and for that
reason, it was essential to investigate every aspect regarding larger
conspiracy.
G (nn) It is submitted that the stand taken by the SIT on the basis of
material collated during investigation, in no way indicated that mass
violence had triggered till 1.00 p.m. on 28.2.2002. This stand is in conflict

41
(1977) 4 SCC 39
42
H (1980) 1 SCC 258 (para 6)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 73

with the fact of sending requisition to call for Army at about 2.30 p.m. on A
28.2.2002. This is a clear reflection on the approach of the SIT to
obfuscate the enquiry.
(oo) The approach of the SIT to record the statements of persons
named as offenders and to accept explanation given by them to form its
opinion thereby exculpate those persons is ex-facie fallacious. For, the B
explanation offered by the offenders would be a matter of their defence
in the trial. The material indicating their complicity cannot be disregarded
and veracity thereof could be tested only during the trial. Notably, not
even a single statement of victim has been recorded by the SIT.
(pp) As a matter of fact, neither the local police nor the SIT has C
undertaken the task as is exposited by the expression “investigation”, as
defined in Section 2(h) of the Code. The expression “investigation” also
means finding out footprint of the statement/allegation, which is to
undertake the meaningful investigation in respect of every singular aspect.
The SIT has not maintained the purity in investigation and failed to
investigate crucial aspects warranting further investigation. D

(qq) The officers, who collaborated in the conspiracy, were
eventually rehabilitated to high positions and those who did not do so,
were persecuted by the concerned administration.
(rr) There was glaring evidence regarding the fact that even fire E
brigade facility was consciously denied to the persons belonging to the
minority community. The frantic phone calls made by them were not
even attended to, despite the emergent situation faced by them. The SIT
made no effort to enquire into this factual allegation and did not call for
explanation of concerned officials of fire brigade.
F
(ss) There was no adequate police bandobast laid in anticipation
nor stern measures taken when the actual violence took place on 28.2.2002
across the State. This was not a mere case of laxity or failure of the
police administration, but a concerted effort under instructions from the
top, when in fact, their public duty was to protect the life and property of
everyone. The situation was aggravated because of the State support to G
the bandh call given by the agitators. The SIT made no attempt to
investigate these allegations forthcoming from the record before it. There
was material to indicate that the official record had been destroyed under
suspicious circumstances.
H
74 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (tt) Reliance has been placed on Firozuddin Basheeruddin &
Ors. vs. State of Kerala43, Nirmal Singh Kahlon vs. State of Punjab
& Ors.44, R. Venkatkrishnan vs. Central Bureau of Investigation45
and State (NCT Delhi) vs. Shiv Charan Bansal & Ors.46.
(uu) The SIT has not enquired into the false propaganda for inciting
B violence and the publication in that behalf, despite the SIT having received
said documents.
(vv) Reliance is placed on State of Karnataka & Anr. vs. Dr.
Praveen Bhai Thogadia47 and Amish Devgan vs. Union of India &
Ors.48 to contend that incitement to violence is punishable offence.
C (ww) The SIT has not enquired into the evidence regarding hate
speech. Regarding hate materials, the material on record was glaring.
That included false reporting by regional media outlets like Sandesh on
28.2.2002, claiming 10-15 Hindu women being dragged away from the
Railway compartment (at Godhra) by fanatic mob. The Gujarat police
D had denied any such incident having been taken place. However, no
action has been taken against the publisher or the reporter. The same
newspaper had reported on 1.3.2002 on the front page with prominent
heading that dead bodies of the kidnapped young women from Sabarmati
Express have been recovered with their breasts chopped off and that
Gujarat is aflame because of Muslim fundamentalists. These canards
E have been tolerated by the concerned administration unabated, thereby
fuelling the emotions and hatred between the two communities. This
was despite the reporting by the SIB headed by Mr. R.B. Sreekumar
recommending prosecution for provocative lines by the VHP in publication
and anonymous pamphlets. Even the then ACS (Home) – Mr. Ashok
F Narayan had admitted in his statement to the SIT that this matter had
been brought to the notice of the State Government, but no action was
ever taken. Similarly, the then Commissioner of Police, Vadodara –
Mr. D.D. Tuteja had recommended action against Sandesh newspaper
in 2002, so also, Mr. Rahul Sharma, an IPS officer and the then (in 2002)
S.P., Bhavnagar sought permission to register a criminal case against
G
43
(2001) 7 SCC 596 (paras 20, 23 and 25)
44
(2009) 1 SCC 441 (paras 67 and 68)
45
(2009) 11 SCC 737
46
(2020) 2 SCC 290
47
(2004) 4 SCC 684 (paras 7 and 8)
48
H (2021) 1 SCC 1 (paras 20, 37, 75, 87, 88, 103 and 107)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 75

Sandesh newspaper. Even the SIB through Mr. P.B. Upadhyaya, the A
then DCP (Intelligence) had sought sanction for prosecution of Sandesh
newspaper, as recommended by Mr. Rahul Sharma. There is also material
to indicate that CCT had highlighted the pretentious writing and
propaganda disseminated by VHP and also widely reported in “The
Express” on 24th March, allegedly circulated by the Bajrang Dal President
B
– Hastimal, who is said to have been arrested. The theme of such
publication was: “Don’t purchase anything from Muslim shops, don’t
travel in their vehicles or visit their garages; don’t watch films which
feature Muslim stars. In this way, we can break their financial backbone”.
According to the appellant, the SIT has chosen to turn a complete blind
eye to this official documentary material and other material on record, C
despite the fact that publication of such material constitutes offence in
law, warranting investigation and appropriate action. This coupled with
the sting operation, clearly establishes the existence of a larger conspiracy.
(xx) The Courts have failed to analyse the opinion of the SIT
founded on the undisputed material indicative of prelude and build-up D
before 27.2.2002 in the form of hate speeches and mobilisation all over
Gujarat on 27.2.2002, the inaction of political/police/bureaucrat
functionaries despite the serious episode of Godhra in the morning of
27.2.2002 and also their inaction after outbreak of violence on 28.2.2002,
not taking preventive measures, deploying the adequate police force, no
prompt arrests, no curfew declared and delay in calling the Army. The E
conspiracy was at different levels and at different timelines having causal
connection with the violence across the State on and from 28.2.2002, in
particular.
(yy) According to the appellant, hate speeches all across were
part and parcel of incitement to targeted violence and a systemic F
conspiracy. The authorities allowed hate speeches unchecked and
unprosecuted to promote hatred amongst the two communities.
Moreover, in furtherance of a pre-hatched conspiracy, large body of
armed and aggressive groups of people took to the street for taking
revenge owing to tragic killings at Godhra. The hate speeches were in G
the form of statements of prominent political leaders before and after
27.2.2002, regional (vernacular) media/press published in Gujarat and
pamphlets with incendiary content by right wing organisations across
the State. No preventive action nor any arrest or prosecution was
deliberately effected, despite such concerted effort. The Courts have
H
76 SUPREME COURT REPORTS [2022] 6 S.C.R.

A not adverted to this grievance of the appellant at all. The SIT investigated
issue of hate speech as an independent head concerning the speeches
of the former Chief Minister of Gujarat and has glossed over plethora of
hate writings and speeches of prominent personalities, especially those
belonging to the VHP. The SIT has failed to reckon the issues noted in
the protest petition concerning hate speeches/writings and more
B
particularly, the failure of the State Government to take prompt action in
that regard.
(zz) It is urged that the SIT has not named any person referred to
in the complaint dated 8.6.2006 and the protest petition except Babu
Bajrangi, who has been prosecuted in Naroda Patia (Ahmedabad City)
C carnage case. None of the other persons have been named in any of the
hate speech cases investigated by the SIT. The SIT could not have
accepted the version of the persons disregarding overwhelming material
indicative of their complicity. In such a case, it would be a triable issue.
(aaa) The appellant in fact relies on SIT record in support of the
D prayer for further investigation, at least in respect of the following matters:-
(i) Failure of administration, touching upon collaboration and
conspiracy.
(ii) The State administration indulged in destroying the critical
E record.
(iii) Handing over bodies to Hasmukh Patel and Jaideep Patel.
(iv) Post-mortems carried out in open at Railway yard.
(v) Parading of bodies/Funeral procession and mob attacks.
F (vi) Delayed imposition of curfew and calling Army.
(vii) Bandh call officially supported.
(viii) Partisan public prosecutor.
(ix) NHRC case and related cases related to Gujarat Carnage,
G 2002.
(x) Subversion of the Criminal Justice System that included (a)
Manipulation of Investigation from the start: doctoring of FIRs,
ensuring powerful offenders were not named, the narrative
was manipulated and twisted to show the victim minority
community as aggressor and perpetrator;
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 77

(b) ensuring easy bail for those among the perpetrators A
who were arrested; and
(c) appointing Public Prosecutors who had a dual identity
i.e., those who were pro-active members of organisations
like the Vishwa Hindu Parishad, Bajrang Dal and
Rashtriya Swayamsevak Sangh (RSS). B
(bbb) The SIT, for reasons best known to it, followed irregular
procedure of taking initials of the persons whose statements were being
recorded despite a bar under Section 162 of the Code. The SIT made no
attempt to seize the mobile and obtain call records of the relevant party.
Moreover, no public notice was issued by the SIT after the complaint C
dated 8.6.2006 was made over to it by this Court in terms of order dated
27.4.200949. If such public notice was to be issued, as was done after
taking over investigation of nine cases pursuant to order dated 26.3.200850,
many of the family members of the victims or the victims themselves
would have come forward and handed over more material to the SIT
concerning the allegation of larger conspiracy. D

(ccc) The SIT chose to rely on the extracts in the report of the
State appointed Commission (Nanavati-Shah Commission), despite the
clear legal mandate that the same cannot be used as evidence in civil
and criminal action, as expounded in Shri Ram Krishna Dalmia vs.
Shri Justice S.R. Tendolkar & Ors.51 and Kehar Singh & Ors. vs. E
State (Delhi Administration)52. At the same time, relying on the decision
of the Full Bench of the High Court of Judicature at Madras in Abdul
Sathar vs. The Principal Secretary to Government 53, it is urged that
the State Government is expected to act upon the recommendations
made by the NHRC unless for non-acceptance it provides reasons. The F
NHRC in its report in the present case, made certain recommendations.
Further, there was tangible material in the form of report of the Committee
on Empowerment of Women54, report of constitutional authority, such
as the Election Commission of India confirming the allegations made in
the protest petition, which have not been investigated at all.
49
G
supra at footnote Nos. 4 and 17
50
supra at footnote Nos. 6 and 16
51
1959 SCR 279 (para 9)
52
(1988) 3 SCC 609 (paras 36 to 41)
53
W.P. No. 41791/2006 (with connected cases) decided on 5.2.2021
54
Ninth Report of the Committee on Empowerment of Women (2002-2003) concerning
violence against women during riots (July-August 2002) H
78 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (ddd) Reliance is placed on Zahira Habibulla H. Sheikh &
Anr. vs. State of Gujarat & Ors.55, Zahira Habibulla Sheikh (5) &
Anr. vs. State of Gujarat & Ors.56 and Dayal Singh & Ors. vs. State
of Uttaranchal57.
(eee) Further, the SIT has not enquired into the evidence in the
B form of statement of Mr. Dileep Trivedi, Public Prosecutor regarding
instructions issued for providing Advocate to accused belonging to a
particular community, indicative of the bias in favour of that community
and being party to the conspiracy.
(fff) The Standard Operating Procedure given in the Gujarat Police
C Manual, such as Rules 45, 46 and 53 therein, has not been followed in its
letter and spirit.
(ggg) The statement of Mrs. Jayanti S. Ravi, District Magistrate,
Godhra is not consistent with the official record, which was certainly a
matter creating suspicion about the correctness of the statement so made.
D (hhh) The SIT had failed to seize the mobile phone of Mr.
Hasmukh Patel and Mr. Jaideep Patel, which could have unravelled the
truth about their involvement. Mr. Jaideep Patel is the same person who
had made revelation to the Press on the same day i.e., 27.2.2002.
(iii) The telephonic call records produced by Mr. Rahul Sharma
E have also not been investigated. The statement of Rahul Sharma dated
2.7.2009 to SIT was clinching to establish the plea regarding call records,
which SIT discarded on the specious ground that the same was produced
for the first time in 2008. The Additional Commissioner of Police, Crime
Branch, Ahmedabad – A.K. Surolia, has also stated in his statement
F before the SIT that it was he who had instructed ACP, Crime Branch –
S.S. Chudasama to extract the relevant call details from the relevant
cellular service providers – M/s. AT&T and M/s. Cellforce. This has
not been investigated by the SIT. The call records given to Mr. P.C.
Pande, the then Commissioner of Police, Ahmedabad have also not been
analysed. The call records would show that Mr. Haresh Bhatt was in
G constant touch with the doctors from outside the Godhra city, after which
post mortems of the Godhra victims were carried out in open in the
55
(2004) 4 SCC 158 (paras 2, 5, 7, 10, 18, 30, 31, 33, 35, 36, 39, 40, 52, 60, 61, 68, 71
and 75)
56
(2006) 3 SCC 374 (paras 4, 5 and 9)
57
H (2012) 8 SCC 263 (paras 1, 21, 22, 25 to 28, 32 and 47.5)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 79

Railway yard. The call records also indicated that Mr. Shivanand Jha, A
the then Additional Commissioner of Police, Sector 1, Ahmedabad City
was part of the larger conspiracy, which is clear from his 68 phone calls
made on 27.2.2002 either owned by politicians or officials (unofficially)
and 192 calls on 28.2.2002 including to then Power Minister, State of
Gujarat – Mr. Kaushik Jamnadas Patel (an MLA elected from his area)
B
and another elected representative – Dr. Maya Kodnani, who has been
named as accused in another case and convicted by the trial Court. The
call records also pertain to Mr. Dinesh Togadia and Dr. Praveen Togadia,
officer bearers of VHP. All these call records have remained
uninvestigated.
(jjj) No explanation is forthcoming from the SIT as to why call C
record was not procured between 2008 and 2010. This is significant as
the SIT was directed to “look into” the complaint dated 8.6.2006 vide
order dated 27.4.200958 and the SIT had submitted its final report to this
Court in September, 2011.
(kkk) The SIT had made no effort to enquire into the fact that D
following the Godhra incident the massacre followed in Deepda Darwaza,
which case was also assigned to SIT by this Court. Even that incident
was a part of larger conspiracy, which has remained to be dealt with in
the concerned trial in right perspective.
(lll) The SIT could have also taken notice of Private Citizens E
Commission headed by former Supreme Court Judges regarding human
rights violation and the contents of the said report indicative of high
officials of the State being party to conspiracy in commission of crime.
(mmm) It is urged that need to direct further investigation can be
substantiated on the basis of undisputed facts emerging from the materials/ F
statements collated by the SIT.
(nnn) In cases of allegation regarding larger conspiracy, there
could be no direct evidence. That is a matter to be investigated and
inferred on the basis of the material pointing out towards such
circumstances. Reliance is placed on Nazir Khan & Ors. vs. State of G
Delhi59. There is no investigation whatsoever regarding existence of
conspiracy despite the same being revealed from Tehelka Tape itself.

58
supra at footnote Nos. 4 and 17
59
(2003) 8 SCC 461 (paras 16 to 22) H
80 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Reliance is also placed on Firozuddin Basheeruddin60 and Nirmal
Singh Kahlon61 to contend that even the second FIR is permissible if
the evidence regarding conspiracy surfaces after registration of the first
FIR. Further, acceptance of final report submitted by the investigating
officer is no impediment for enquiring into fresh material brought to the
notice of the investigating officer or the Court, if warrants taking
B
cognizance.
(ooo) The SIT has not offered any remark regarding the statement
of Mr. Bharat Bhatt, Special Public Prosecutor and Mr. Deepak Shah,
who were questioned by the SIT for reasons best known to it.
C (ppp) It is urged that appellant – Zakia Ahsan Jafri had appeared
as prosecution witness (PW-337) in Gulberg Society case being CR No.
67/2002 and not as a complainant. Whereas, in the present action,
appellant – Zakia Ahsan Jafri was prosecuting the matter as complainant.
(qqq) The appellant has also explained as to how the error has
D been committed in mentioning the name of Mr. Rahul Sharma and Satish
Verma as offender Nos. 45 and 63 respectively, though they were cited
as witnesses in support of the allegations made in the complaint and
protest petition. That was also explained to the SIT at the earliest
opportunity.

E (rrr) It is urged that undue reference was made about the adverse
observations recorded against Ms. Teesta Setalvad by the Court. That
was wholly inappropriate. For, the stated adverse remarks came to be
expunged by this Court in Testa Setalvad & Anr. vs. State of Gujarat
& Ors.62. Reliance was placed on some proceedings for similar purpose
against Mr. R.B. Sreekumar. Those proceedings are still pending and
F will be of no avail to SIT. One of the reasons weighed with the SIT to
discard the statement of Mr. R.B. Sreekumar was, therefore, untenable
on the face of it because the correspondence pertains to period much
before Mr. R.B. Sreekumar had raised issues regarding violation of his
service conditions with the department.
G (sss) The SIT had filed material alongwith final report consisting
of (i) documentary evidence (officially received), (ii) documentary
evidence otherwise collected by the SIT, (iii) video-audio recordings of
60
supra at footnote No. 43
61
supra at Footnote No. 44
62
H (2004) 10 SCC 88 (paras 4 and 7)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 81

a sting operation authenticated at the instance of the NHRC by the CBI A
and relied upon by the SIT in various prosecutions, (iv) extra judicial
confessions evidenced by the sting operation and (v) witness statements
in respect of individuals in relation to the events that took place prior to
February 27, 2002 until order of this Court dated 12.9.201163. The
Magistrate was obliged to examine the voluminous documentary and
B
other evidence to ascertain whether some matters raise strong suspicion
of offences having been committed, being sufficient reason to issue
direction to the SIT to further investigate the same, even if it was not a
case of taking cognizance straightaway. Reliance is placed on Afroz
Mohammed Hasanfatta64 and S.K. Sinha65.
(ttt) The appellant was relying on undisputed documents available C
in the SIT record, which alone were sufficient to issue summons for
alleged offences, as it clearly indicated the complicity of the persons
named in the complaint/protest petition and in any case, raised strong
suspicion about the commission of such offence. The reports of Mr.
R.B. Sreekumar to the Government between April and August, 2022, D
constitute official documentary evidence, which the SIT has disregarded.
That being the substantive evidence, was required to be reckoned by the
SIT.
(uuu) The Courts cannot adopt the approach of forgive and forget,
but it is the solemn duty of this Court to ensure that all guilty are brought E
to book and prosecuted in accordance with law. He would submit that: -
“The Republic is like a shop… that ship has to be made steady. It
is your task to keep the Republic steady. It would be steady only
if majesty of law prevails. This is a case where the majesty of
law has been deeply injured… Despite actionable evidence the F
court has chosen not to look at it and misread the order of SC. In
this case violence has been perpetrated through design which is
reflected in the documents… I leave it then to your lordship to
decide.”
(vvv) It is submitted that it would be a different matter if the G
Court feels that the material on record did not raise any suspicion.

63
supra at footnote No. 26
64
supra at footnote No. 31
65
supra at footnote No. 39 H
82 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (www) In the backdrop of the stand taken before us in respect of
allegation Nos. (i) and (iv) articulated in the final report dated 8.2.2012,
at the time of conclusion of the hearing, we requested the learned senior
counsel for the appellant to submit written statement in that regard, which
he submitted after the case was adjourned for pronouncement of verdict,
in the following words: -
B
“STATEMENT OF THE PETITIONER QUA LARGER
CONSPIRACY
The Petitioner has made her submissions based on undisputed
evidence in the form of Tehelka tapes and official communications
C of public functionaries. The Petitioner has not sought to allege
any wrongdoing, criminal or otherwise, with reference to facts
that are disputed. The Petitioner contends that a larger conspiracy
involving individuals whose undisputed extra-judicial confessions
are on tape, read along with inactions of officials demonstrated
by undisputed documents, should have been investigated by the
D SIT, which could have established a larger conspiracy. The
submission is that the SIT did not investigate the larger conspiracy,
but limited itself to matters in dispute relating to a meeting of
February 27, 2002. Qua that meeting, the SIT has come to a certain
conclusion which is part of the closure report. Since the
E Petitioner has not made any submissions on disputed facts,
the Petitioner did not contend before this Hon’ble Court
that a larger conspiracy emanated from the meeting of
February 27, 2002. In fact, during the course of submissions, no
reference was made by the Petitioner to this meeting at all. The
undisputed evidence on record points to a larger conspiracy
F which appears to have involved bureaucrats, politicians,
public prosecutors, VHP, RSS, Bajrang Dal and members
of the State political establishment. It is this conspiracy that
is not investigated by the SIT. The extent of the conspiracy,
the identity and number of individuals involved, the preparatory
G acts committed and the time, place and manner in which the meeting
of minds for purposes of such conspiracy took place can only
fully emerge on investigation and is not something that the Petitioner
can be called upon to provide answers to.”
(emphasis supplied)
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 83

SUBMISSIONS OF THE RESPONDENT – SIT A
7. (a) The thrust of the argument of the respondent-SIT, is that,
after directions given by this Court vide order dated 27.4.2009 66 to “look
into” the written complaint of appellant, it immediately moved into action
and did everything that it could do to investigate every singular allegation
noted in the complaint. The SIT could cull out thirty broad allegations in B
the complaint made over to it for investigation. In addition to those thirty
allegations, the SIT also investigated into two additional allegations
including the comments/observations of the Amicus Curiae in reference
to the final report presented to this Court, and recorded its opinion in that
regard in the final report submitted to the Magistrate. The SIT left no
stone unturned and thoroughly investigated all aspects of the matter67, C
as also, exhaustively analysed every piece of information/material
collected by it during the investigation by recording statements of 375
persons and questioning 275 persons in terms of the direction given by
this Court.
(b) The final report besides dealing with each of these 32 (thirty- D
two) allegations exhaustively, has also separately dealt with the case
against each of the 63 persons named as offenders in the complaint
dated 8.6.2006. As aforesaid, the final report submitted to the Magistrate
also reproduces the observations of the Amicus Curiae and deals with
every aspect thereof to form its opinion that no offence is made out, E
much less having been committed by the offenders named in the
complaint. It is urged that the investigating agency is entitled to form its
opinion dependent on the legally admissible evidence/material collated
during investigation. Further, the SIT had to investigate within the remit
given to it by this Court. In that, vide order dated 27.4.200968, this Court
directed the SIT appointed by it to only “look into” the complaint dated F
8.6.2006 of appellant – Zakia Ahsan Jafri. No direction was given to the
SIT to register it as FIR. Notably, this Court consciously adopted such a
course - despite the main prayer of appellant – Zakia Ahsan Jafri to
register her complaint as FIR and to get the same investigated through
66
supra at footnote Nos. 4 and 17
G
67
including by recording statements of 66 witnesses during preliminary enquiry between
19 June, 2009 – 18 December, 2009, 120 witnesses during preliminary enquiry between
12 January, 2010 – 23 December, 2010, 76 witnesses during further investigation
between 14 th August, 2010 – 10th November, 2010 and 145 witnesses during further
investigation 23 rd November, 2010 till 13 th January, 2012
68
supra at footnote Nos. 4 and 17 H
84 SUPREME COURT REPORTS [2022] 6 S.C.R.

A an independent agency. Not only that, upon submission of the final report
by the SIT, the appeal filed by the appellant [SLP(Crl.) No. 1088/2008]
was disposed of and the SIT was directed to submit appropriate report
before the Magistrate taking cognizance in the Gulberg Society case
being CR No. 67/2002. This is despite the fact that the trial of the said
case had progressed before the Sessions Court after filing of the last
B
supplementary chargesheet on 12.8.2009. The trial of the said case,
thus, continued under the directions of this Court including dated 6.5.2010.
In that sense, this Court adopted a sui generis procedure which was not
in strict consonance with the procedure predicated under the Code.
Resultantly, the SIT was bound to strictly follow the directions of this
C Court in every aspect without exception. And that, the SIT had fairly
discharged its role to the satisfaction of this Court, as noticed from the
orders dated 1.5.200969, 12.9.201170 and as recently as, 13.4.2017.
(c) In the writ petition filed before the High Court, relief claimed
was not for assigning investigation of complaint dated 8.6.2006 to the
D SIT (appointed by this Court in connection with nine major cases which
included Gulberg Society case being CR No. 67/2002), but to an
independent investigation agency. That prayer, obviously, stood rejected
by the High Court and even by this Court consequent to direction issued
on 27.4.200971 in the special leave petition filed by the appellant, directing
the SIT to only have a look at the complaint.
E
(d) It is urged that this Court even vide order dated 12.9.201172,
did not direct registration of the complaint dated 8.6.2006 as FIR. It only
called upon the SIT to take necessary follow-up steps. The complaint
dated 8.6.2006, in one sense, was regarded by the SIT as further
information in relation to the Gulberg Society case being CR No.
F 67/2002, investigation and trial whereof was allowed to proceed by this
Court at the same time. The last supplementary chargesheet in that
case came to be filed as back as on 12.8.2009.
(e) The remit of the SIT, in terms of the directions issued by this
Court from time to time was only to examine whether the material referred
G to in the complaint discloses commission of any offence of larger
conspiracy at the highest level and involvement of any person other than
69
supra at footnote No. 18
70
supra at footnote No. 26
71
supra at footnote Nos. 4 and 17
72
H supra at footnote No. 26
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 85

the accused persons named in CR No. 67/2002 concerning Gulberg A
Society. That being the remit of the SIT, it could not have investigated
into any other aspect without an express direction of this Court. This is
also for the reason that the allegation of conspiracy at the local level had
already been investigated into in all other cases registered at the relevant
time, around 2000 in number, including the nine major cases assigned to
B
the Supreme Court appointed SIT. The allegations which are made in
the complaint are based essentially on the record/affidavits of the officials
of the State, filed before the Nanavati-Shah Commission.
(f) Additionally, the direction given by this Court on 12.9.201173 in
the special leave petition filed by the appellant, would not only bind the
SIT and the Magistrate dealing with the final report, but also the appellant C
herein. No liberty was sought or had been given by this Court to the
appellant to make fresh allegations beyond the allegations noted in the
complaint dated 8.6.2006 and already investigated by the SIT in terms
of order dated 12.8.2009. As a matter of fact, appellant – Zakia Ahsan
Jafri being the complainant could have availed of the remedy under Section D
190 of the Code by presenting a complaint before the competent
Magistrate, as observed by the High Court vide order dated 2.11.2007.
She did not avail of that remedy. Instead, the appellant approached this
Court by way of SLP(Crl.) No. 1088/2008 and submitted to and
acquiesced of the directions issued by this Court from time to time.
E
(g) Significantly, in proceedings before this Court, Ms. Teesta
Setalvad had assisted the Amicus Curiae appointed by this Court and
presumably also for articulating the observations in the note submitted
by him to this Court and to which the SIT had duly responded and dealt
with in the final report presented before the Metropolitan Magistrate, in
terms of this Court’s order dated 12.9.201174. Even the Magistrate was F
bound by the remit applicable to the SIT in view of the sui generis
procedure adopted by this Court in treating the report of the SIT as
further report under Section 173(8) of the Code (in the Gulberg Society
case being CR No. 67/2002) to be presented before the Magistrate
alongwith the statements recorded by the SIT, treating them as statements G
under Section 161 of the code in terms of order dated 7.2.2013.
(h) It is urged that the appellant has repeatedly changed the
goalpost with a view to create confusion. Amongst others, the manner in
73
supra at footnote No. 26
74
supra at footnote No. 26 H
86 SUPREME COURT REPORTS [2022] 6 S.C.R.

A which her complaint dated 8.6.2006 ought to proceed, despite the crystal-
clear order of this Court. Further, for the first time, it is now urged that
the same (complaint dated 8.6.2006) ought to be treated as a private
complaint and proceeded with by the Magistrate under Section 190 of
the Code.
B (i) It is urged that the argument of the appellant to treat the protest
petition as a private complaint, is one of desperation and in any case,
untenable in light of the express direction given by this Court to the SIT
to submit its report to the Magistrate taking cognizance of CR No.
67/2002 being the Gulberg Society case - as further report under Section
173(8) of the Code. If the report was to disclose commission of such
C offence of larger conspiracy or abetment, as the case may be, the Court
could have proceeded against the concerned persons and tried in sessions
trial arising from CR No. 67/2002 by framing requisite charge(s) in that
regard. Therefore, the complaint could neither be registered as FIR nor
could be treated as a private complaint in the wake of sui generis direction
D given by this Court vide order dated 12.9.201175 in the special leave
petition preferred by the appellant. Reliance has been placed on Vishnu
Kumar Tiwari76
(j) It is urged that when the SIT called upon appellant – Zakia
Ahsan Jafri to give her statement in connection with the complaint, she
E declined to do so and it has been so recorded in the opening part of the
final report as well. She wanted the SIT to treat her complaint as FIR
and register the same. Accepting this request would have been contrary
to the spirit of the direction given by this Court (vide order dated
27.4.200977) to SIT, to only look into the complaint and to take further
steps in that regard. Until the special leave petition filed by appellant –
F Zakia Ahsan Jafri was disposed by this Court on 12.9.201178, no request
was made to this Court to clarify the position or for issuing directions to
register her complaint as FIR/complaint.
(k) Although in the rejoinder argument, the learned counsel for
the appellant had stated that he had never argued for treating the
G complaint/protest petition of appellant – Zakia Ahsan Jafri as complaint
under Section 190 of the Code, it is noticed that a clear stand has been
75
supra at footnote No. 26
76
supra at footnote No. 27 (paras 7, 17, 27, 32, 33 and 42)
77
supra at footnote Nos. 4 and 17
78
H supra at footnote No. 26
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 87

taken in paragraph 5 of the written note being Convenience Compilation A
(Volume I) filed by the appellant in this regard. Further, in the protest
petition, fresh allegations have been made, which in any case cannot be
linked to the allegation of larger conspiracy required to be investigated
by the SIT in terms of successive orders passed by this Court. The
attempt of the complainant was obviously to make wild and preposterous
B
allegations and keep the pot boiling in the name of taking action against
new offenders referred to in the protest petition while not pursuing
allegation Nos. (i) and (iv) which had been thoroughly investigated by
the SIT and found to be devoid of substance. A deceptive stand is taken
that the appellant would like to pursue the matter only on the basis of
undisputed material/documents - having realised that the basis on which C
allegation Nos. (i) and (iv) came to be made, was a figment of imagination
of the persons attributing certain utterances to the then Chief Minister to
make it sensational news. Significantly, SIT was entrusted with
investigation of other crimes, which it completed to the satisfaction of
this Court. In those cases, not even a tittle of remark has been made by
D
the trial Court to trace it to the allegation of larger conspiracy. However,
the appellant has highlighted unconnected matters (Deepda Darwaza
case and Sardarpura case), in the guise of protest petition filed in Gulberg
Society case.
(l) Whereas, it had been understood by all concerned that the SIT
was expected to investigate into the allegation regarding “larger E
conspiracy” to cause and precipitate mass violence across the State and
not the criminal conspiracy at the local level resulting in violence at
Gulberg Society, in respect of which CR No. 67/2002 had already been
registered. In that, as regards the conspiracy to commit offence mentioned
in CR No. 67/2002, that had already been investigated and chargesheet F
filed, including supplementary chargesheets from time to time. It is not
in dispute that even the trial Court, which dealt with the said crime, had
formulated the very first point for its determination on the basis of charges
framed against the accused named in the said trial being CR No.
67/2002 - regarding pre-planned conspiracy to form an unlawful assembly
and thereafter perpetrate the carnage at Gulberg Society on 28.2.2002, G
which resulted in death of 69 persons and attempts to murder, causing
grave and serious injuries to residents of Gulberg Society and also causing
damage and destruction of vehicles and property thereat.
(m) Similarly, the allegation regarding events of mass violence
spread across the State being State-sponsored crime had been made H
88 SUPREME COURT REPORTS [2022] 6 S.C.R.

A even in Bilkis Bano case and Best Bakery case and other cases including
eight other cases investigated by the SIT. Those allegations have been
dealt with in the concerned cases. In other words, the complaint dated
8.6.2006 submitted by appellant – Zakia Ahsan Jafri was to be looked
into by the SIT in respect of allegation regarding larger conspiracy at the
highest level alone and not the conspiracy at the local (lower) level.
B
(n) The appellant is now heavily relying on the following: -
(i) Tehelka tapes which surfaced in 2007;
(ii) The CDRs;

C (iii) The SIB messages;
(iv) The call for Gujarat Bandh;
(v) The “hate material”;
(vi) The handing over of dead bodies;
D (vii) Post mortem at the Railway station in open yard;
(viii) Presence of Ministers in the Control Room and DGP office;
(ix) Response of the fire brigade;
(x) PCR messages by Mr. Pande;
E (xi) Delay in curfew;
(xii) Delay in requisition of Army; and
(xiii) Partisan/prosecutors.
However, each of these issues were considered at great length
F by this Court between 2008 and 2011 whilst monitoring the investigation
done by the SIT and culminating in final report. The findings of the SIT
had also to pass through the strict scrutiny of the Amicus Curiae assisting
this Court, who was authorised to even interact with the witnesses
examined/questioned by the SIT. It would be, therefore, travesty of justice
and doubting the wisdom of this Court which had supervised/monitored
G the investigation completed by the SIT on all aspects and being satisfied
permitted the SIT to present the final report before the Magistrate. The
entirety of the material was presented before this Court by the SIT from
time to time. The final report in question presented before the Magistrate,
therefore, forecloses the enquiry concerning the allegations in complaint
H dated 8.6.2006.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 89

(o) According to the SIT, considering its remit, the Magistrate A
was also required to examine the final report on that basis and to satisfy
about the plausibility of the conclusions drawn by the SIT on the materials
collected by it. The Magistrate entered upon such exercise and applied
his mind to the totality of the circumstances including by taking note of
the issues raised in the protest petition and accepted the final report
B
being convinced that no case was made out for issuance of process
against the named offenders or any other person.
(p) As regards larger conspiracy, the allegation is mainly founded
on the affidavits/materials filed by the officials and others before the
Nanavati-Shah Commission appointed by the State of Gujarat under the
1952 Act. The Commission, however, has dealt with every aspect of the C
affidavit(s) filed by the concerned officials before it including the material
which also forms part of the complaint submitted by appellant – Zakia
Ahsan Jafri. The opinion of the Commission in that regard is no different
than the conclusions reached by the SIT. Notably, the Commission
submitted its report after the SIT had already filed its final report before D
the Magistrate.
(q) Indeed, the opinion of the SIT must conform to the material
dealt with by it in its report. In the present case, the final report of the
SIT is exhaustive and deals with every singular aspect necessary to
answer the allegations made in the complaint - which is on the basis of E
analysis by the SIT by reckoning the material collected during the
investigation. The analysis of the entire material by the SIT is not only
allegation-wise, but named offender-wise including witness-wise and
objection/noting (wise) of the Amicus Curiae in response to the previous
further report of the SIT submitted before this Court.
F
(r) The SIT has thoroughly analysed the allegations against each
offender in the subject final report on the basis of material collected by
it, as can be discerned from pages 363-364, 367, 370-385, 388-392 and
395-397. Only after such thorough analysis, the SIT had opined that no
offence has been made out nor the stated offender can be said to be
involved in the commission of offence of larger conspiracy. G
(s) The complaint highlights the pattern of continual concerted
lackadaisical approach of high officials of the State Government, who
were allegedly acting under dictation from the highest authority of the
elected political dispensation. The theory of larger conspiracy is put forth
H
90 SUPREME COURT REPORTS [2022] 6 S.C.R.

A mainly on the basis of alleged utterances of the then Chief Minister in
the meeting held soon after the ghastly incident of train burning in Godhra
on 27.2.2002 and the subsequent official meeting on 28.2.2002 including
before the Press. The case made out in the complaint dated 8.6.2006 is
that the high officials followed the directions given by the then Chief
Minister and issued instructions to their subordinates to justify pre-
B
orchestrated mass carnage that enjoyed the political sanction of the
constitutionally elected Government in Gujarat. Hence, it was nothing
short of State sponsored violence against a particular community.
(t) The remit of the SIT was, therefore, to investigate the allegations
in the complaint, which it had done meticulously, as can be discerned
C from the final report submitted by it running into about 231 closely typed
pages (in the paper book of this Court, mentioned as pages 1 to 270 on
the cover page of the report filed), analysing every piece of material/
evidence collated by it allegation-wise, offender-wise, as well as the
observations of the Amicus Curiae on the final report presented by the
D SIT before this Court. The final report is the compendium of the previous
reports submitted before this Court and the clarification of the SIT in
respect of observations of Amicus Curiae, point-wise. The permission
given by this Court in terms of order dated 12.9.201179 is a seal of approval
of this Court about its satisfaction regarding the completion of fair
investigation done by the SIT in respect of allegations contained in
E complaint dated 8.6.2006. If there was even a little doubt, this Court, as
in the past, would have certainly directed the SIT to do further investigation
in respect of left out matters. As noted earlier, Ms. Teesta Setalvad had
interacted with the Amicus Curiae before he had submitted his
observations by way of a note to this Court and made over to the SIT.
F As all concerned had acted upon and accepted the sui generis procedure
followed by this Court in dealing with the complaint dated 8.6.2006
including regarding its investigation and directing presentation of an
appropriate report before the Magistrate taking cognizance of CR No.
67/2002 concerning the Gulberg Society in terms of order dated
12.9.201180, neither the SIT nor the Magistrate could travel beyond the
G said remit. For the same reason, it would not be open to the complainant/
informant/appellant to make fresh allegations, much less not connected
with the larger conspiracy at the highest level, already investigated by
the SIT under the supervision of this Court.
79
supra at footnote No. 26
80
H supra at footnote No. 26
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 91

(u) In any case, the emphasis placed by the appellant on matters A
referred to in the protest petition are in respect of unconnected events
and not having direct or causal bearing on the allegation of larger
conspiracy, particularly involving the political dispensation, as well as,
the high officials, bureaucrats and police functionaries allegedly acting
under the dictation of the then Chief Minister. Notably, no submission
B
has been advanced on the meeting held on 27.2.2002 under the
chairmanship of the then Chief Minister or about the testimony of
Mr. Sanjiv Bhatt, IPS, the then Superintendent of Police (Security), who
falsely claims to have attended the official meeting.
(v) As regards allegations regarding Ministers found sitting in the
Police Control Room and giving instructions to the officials, the SIT has C
thoroughly examined the said allegation and after due enquiry, was of
the opinion that the Ministers even though visited the Control Room,
were to ascertain the developments and not for giving instructions, as is
the routine practice. No material has come on record to indicate that the
Ministers had given specific direction one way or the other to the D
subordinate officials, which may be regarded as a case of larger
conspiracy. Absent such evidence, mere fact that the Ministers had visited
the Police Control Room would not take the matter any further, much
less to charge the offenders named in the complaint with any offence.
(w) As regards the allegation that the State did not stop the State E
wide Bandh call, it does not follow that the officials and elected
Government had entered into larger conspiracy culminating with the
events unfolded on 27.2.2002 onwards. In the first place, the materials
collated during investigation does not corroborate this fact. In any case,
the inaction or for that matter, tacit support of the elected Government
of the State to the State wide Bandh, by itself absent any other F
incriminating circumstance/material, cannot be the basis to initiate
prosecution against the high officials of the State on the charge of criminal
conspiracy and for violence happening across the State.
(x) As regards the allegation regarding late deployment of Army,
the same was found to be devoid of substance by the SIT. The material G
collected during investigation revealed that the then Chief Minister, on
the basis of inputs and sensing serious problem across the State, had
telephonically interacted with the then Home Minister of the Government
of India at 1.00 p.m. for deployment of Army and a formal written request
was sent on fax to the Union Ministry at 2.30 p.m. on 28.2.2002. The H
92 SUPREME COURT REPORTS [2022] 6 S.C.R.

A arrival of army took some time due to unavoidable situation and after
providing logistical assistance, the Army was deployed immediately on
the following day. These measures taken by the State Government, in
fact, are indicative of prompt steps taken to avoid any further untoward
situation and destroys the theory of larger conspiracy by the State at the
highest level or State supported violence.
B
(y) It was urged by the respondents that material on record taken
into account by the SIT has been noted even by the Nanavati-Shah
Commission and the trial Court in Gulberg Society case being CR No.
67/2002, indicative of the measures taken by the State in anticipation of
the riots, but the civil administration was overrun across the State. Further,
C apprehending the fallout aftermath the Godhra train burning episode and
the general unrest all around, Army was requisitioned on 28.2.2002 itself
even before the violence had actually taken serious proportion across
the State. The Army arrived on the same midnight, as they were posted
at the borders due to security reasons aftermath the attack on the
D Parliament on 13.12.2001 (which had happened only two months earlier).
After arrival and providing logistical support at the local level, the Army
was deployed in sensitive areas across the State. The contemporaneous
record would, therefore, indicate that the theory of larger conspiracy
propounded in the complaint is falsified being imaginative.
E (z) As regards the partisan investigation in the concerned criminal
cases, the same was also of no avail, as there was no evidence
forthcoming to connect it with the allegation of larger conspiracy.
(aa) The SIT had examined everyone involved including the then
Chief Minister until the last Minister and found that there was no material
F to connect them with the allegation of larger conspiracy.
(bb) It is submitted that allegation concerning the conduct of
grassroot level officers had nothing to do with the allegations regarding
larger conspiracy at the highest level.
(cc) Even allegations based on the affidavit of Mr. R.B. Sreekumar
G had nothing to do with the allegations of larger conspiracy and in particular,
the directions issued from the highest authority – the then Chief Minister.
Furnishing of alleged misleading reports by the State Home Department
to the central Election Commission for conduct of early elections, also
has no connection with the theory of larger conspiracy being the cause
of eruption of violence across the State. It is pointed out that appellant –
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 93

Zakia Ahsan Jafri, in her evidence recorded on 22.10.2010, accepted A
that Mr. R.B. Sreekumar was at the relevant time, working with an
NGO and Ms. Teesta Setalvad was associated with that organisation.
Interestingly, she was none else, but the convener of the Private Citizens
Commission headed by former Supreme Court Judges and was in a
position to influence appellant – Zakia Ahsan Jafri. It is submitted that
B
Ms. Teesta Setalvad, for reasons best known to her and out of vengeance,
was interested in continuing with her tirade and persecution on the basis
of unsubstantiated allegations in the complaint in the name of quest for
justice with real purpose to keep the pot boiling and sensationalise and
politicize the crime. The version of Mr. R.B. Sreekumar in the later
affidavits commenting about the functioning of the administration, must C
be viewed in the context of his denial of career opportunities.
(dd) Indisputably, Mr. R.B. Sreekumar, former IPS officer was
posted as Additional Director General of Police, Armed Unit, Gujarat, at
the time of riots, who had filed nine affidavits before the Nanavati-Shah
Commission. He did not derive any of its contents from personal D
knowledge/information, which he might have received as occupant of
the stated office. Further, he did not make any allegation against the
State Government in his initial two affidavits filed before the Commission,
but started making allegations from third affidavit dated 9.4.2005,
presumably because he was deprived of service benefits having been
superseded by his junior – Mr. K.R. Kaushik. Later, he got involved as E
an accused in the FIR filed by CBI in ISRO spying case, which had
been registered under directions of this Court in S. Nambi Narayanan
vs. Siby Mathews & Ors.81 and again between the same parties82.
(ee) Appellant – Zakia Ahsan Jafri in her cross-examination in
Gulberg Society case being CR No. 67/2002 as PW-337 had conceded F
that she knew Ms. Teesta Setalvad for some time and also about having
met Mr. R.B. Sreekumar after the incident. She has stated that
Mr. R.B. Sreekumar had come to Gulberg Society on 28.2.2002 and
upon completion of four years she had met him. She had also stated that
Mr. R.B. Sreekumar was presently working with Ms. Teesta Setalvad. G
She had also admitted in her cross-examination that she had given
statement on 22.8.2003 before the Nanavati-Shah Commission and after
giving that statement, she had no occasion to read copy of that statement.
81
(2018) 10 SCC 804
82
2021 SCC Online SC 760 H
94 SUPREME COURT REPORTS [2022] 6 S.C.R.

A This was suggestive of the fact that she was tutored by Ms. Teesta
Setalvad, but she never disclosed about that, which fact she had to admit
in the cross-examination. She had also admitted in her cross-examination
that Mr. R.B. Sreekumar was disappointed with the Government. At the
same time, she was unable to recall about the enquiry made by the SIT
in connection with the affidavit filed by her before the Commission.
B
And that, she had throughout followed the instructions of Ms. Teesta
Setalvad. In the final supplementary report filed by the SIT in Gulberg
Society case being CR No. 67/2002, it has been clearly noted that nineteen
witnesses insisted to take on record their prepared signed statement(s),
which according to them, were prepared by Ms. Teesta Setalvad and
C Advocate – Mr. M.M. Tirmizi and did not show willingness to give their
own statement. The statements so presented were stereotyped copies/
computerised prepared statements given to them by Ms. Teesta Setalvad
and Advocate – Mr. M.M. Tirmizi and they had merely signed such
prepared statements.
D (ff) The final report extensively discusses the allegations culled
out from separate affidavits filed by Mr. R.B. Sreekumar before the
Nanavati-Shah Commission after recording the statements of concerned
persons and collecting relevant documents - as can be discerned from
pages 264-266, 271-283, 285-287, 297-298, 302-312, 326 and 329.
E (gg) The other allegations founded on the version of Mr. Rahul
Sharma were also enquired into and the SIT examined the relevant call
records to conclude that the same were baseless. The allegations were
broadly regarding laxity and failure in maintaining law and order during
the relevant time.

F (hh) The SIT recorded statements of all the relevant persons who
were stung in the Tehelka Sting Operation. The call details of Babu
Bajrangi, who was one amongst them, clearly establishes that he was in
Ahmedabad from morning 11:15 hrs. on 27.2.2002 and, therefore, he
could not have been in Godhra at the time of Godhra train incident.
Similarly, the call details of Haresh Bhatt were analysed, which revealed
G that he was present in Ahmedabad till 9:30 hrs. on 27.2.2002. His location
was again shown in Ahmedabad directly at 18:40:21 hrs., which supports
his claim that he had gone to his village during the interregnum period,
when connectivity was not there. Again on 28.2.2002, his location
remained at tower of mobile service provider in Paldi in Ahmedabad till
H 12:00:04 hrs. on that day. This supported his claim that he had visited his
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 95

village for a week. In any case, Haresh Bhatt had not been named in the A
FIR register pertaining to riot cases in Gujarat or in the complaint filed
by appellant – Zakia Ahsan Jafri.
(ii) As regards the argument founded on Tehelka Sting Operation
about build-up of arms and ammunition in Gujarat even before Godhra
train incident, the contents of the transcript are not corroborated from B
the material available with the SIT. The trial Court in Sessions Case No.
152/2002 arising from Meghaninagar PS FIR No. 67/2002 (Gulberg
Society case) regarding use of firearms in the incident, had observed in
paragraph 722 that there is no evidence or recovery of the bullet fired
from private weapon by any member of the mob. The only case is that
the material recovered from the scene of offence were empty cartridge C
shells and bullet casings, ballistically established to have been fired from
the licensed weapon to be of the ownership of late Mr. Ehsan Jafri. In
other words, there is no corroborative material forthcoming regarding
commission of any offence by the offenders named in the complaint,
much less of larger conspiracy. D
(jj) The Tehelka Sting Operation in a way relates to the allegation
regarding criminal conspiracy at the local level. The contents thereof
have nothing to do with the allegation of larger conspiracy enquired into
by the SIT as directed by this Court. The local level conspiracy had
been investigated in the respective cases including the nine cases E
investigated by the SIT under supervision of this Court. In the concerned
cases, all persons involved including the persons recorded in the sting
operation have been proceeded against in the concerned case. As had
been pointed out, SIT nevertheless recorded statements of 13 persons
out of 18 involved in the operation ‘Kalank’ by Tehelka. The statements
of those persons in law could be used against the maker of the statement F
as extra judicial confession, but not against others and more so without
corroborative piece of evidence. The SIT had not only recorded the
statement of Babu Bajrangi, but also Prakash S. Rathod (a worker at a
Petrol pump) and Haresh Bhatt. Their presence at the place referred to
by them stood falsified by the call detail records. Their version has been G
analysed by the SIT and found to be unuseful in the context of the
allegation of larger conspiracy being enquired by it under directions of
this Court. Until the disposal of the matter by this Court on 12.9.2011 83,
the issues now raised were never pointed out even by the Amicus Curiae.
83
supra at footnote No. 26 H
96 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (kk) The learned counsel would also urge that incorrect statement
was made on behalf of the appellant that the SIT had not recorded
statement of any victim. This submission is falsified from the record of
the SIT, which includes the statements of concerned victims (minority
community), list whereof has been mentioned in paragraph 35 of the
Final Note Part-III with heading “Clarification as to Conspiracy in the
B
Gulberg Case”.
(ll) Similarly, incorrect allegation was made against the SIT about
the records produced by Mr. P.C. Pande. Those records were produced
by Mr. Pande on his own and not as per directions given by this Court.
Further, the record was a scanned copy of the PCR messages done by
C him and in his custody. Whereas, the original records which were allegedly
scanned by him, were destroyed in the year in 2008 itself as per rules in
Gujarat Police Manual. As such, the SIT cannot be blamed for non-
recovery of the original PCR message record.
(mm) It was also faintly suggested that the SIT had failed to
D record further statements or re-examine the witnesses. It is urged that
those persons who came to give their statements to SIT, their statements
were recorded by the SIT without exception. If any witness wanted to
give further statement, could have done so on his own if he desired to
share further information. But no such request was received by the SIT.
E If the SIT wanted to re-examine any witness, it could have done so
unhesitatingly. In substance, the allegation about the inaction of the SIT
or partisan attitude during the investigation is, to say the least,
preposterous.
(nn) It is urged that the SIB messages being exchanged between
F the concerned officials itself is indicative of the fact that the State
Government and the police were proactive in dealing with the crisis that
was evolving post-Godhra episode. Additionally, on 28.2.2002 itself, the
State called for Army assistance by sending a formal request in that
behalf and on arrival of Army after giving logistical assistance, it was
deployed all across the sensitive areas in the State. This also is indicative
G of the fact that proactive measures were being taken by the State, but
that was overrun by the expanse of spontaneous mass violence. The
SIT had noted that the SIB being responsible to collect intelligence
regarding law-and-order situation in the State, was at the relevant time
headed by Mr. G.C. Raiger, the then Additional Director General of Police-
H Intelligence. The authorities who were supervising the functions of this
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 97

department have been named as being part of pre-planned larger A
conspiracy. However, on analysing the messages, it is noticed that the
intelligence agencies of the State were collecting the relevant intelligence
and disseminating the same to the concerned authorities. Thus understood,
the allegation of pre-planned larger conspiracy and involvement of named
high officials remained unsubstantiated and not even warranting any
B
suspicion about their involvement.
(oo) It is urged that left to the appellant, she had gone to the
extent of suggesting that the two train bogies were put on fire as a part
of pre-planned conspiracy hatched by the highest authority. This is only
figment of imagination, preposterous and in disregard of the hard facts
discernible from the material collected by the SIT including in the C
investigation concerning Godhra incident clearly spelling out the manner
in which that incident had occurred. The trial of that case has established
the involvement of accused who had been convicted for being responsible
for the said incident and appeal therefrom is pending in this Court.
(pp) It is urged that assuming that it is a case of intelligence failure D
and in a given situation, inaction of the concerned authority responsible
to take corrective measures, such failure cannot take the colour of being
involved in criminal conspiracy as such. For being involved in the crime
of criminal conspiracy, there ought to be positive material indicative of
deliberate act of commission and omission and meeting of minds of the E
concerned persons, which was completely absent and not forthcoming
during the investigation conducted by the SIT to enquire into the allegations
of larger criminal conspiracy. The SIT had investigated into the role of
every person named as offender in the complaint under consideration
and analysed the same in the final report offender-wise as well.
F
(qq) The SIT had recorded statements of various officials of SIB,
such as Mr. P.B. Upadhyay, the then DCI (Communal), Mr. O.P. Mathur,
the then IGP (Admn. & Security), SIB, Mr. G.C. Raiger, the then
Additional DG (Intelligenc), as also of Mr. Ashok Narayan, ACS (Home),
which have been taken into account for forming opinion, as noted in the
final report. Despite the efforts put in by the officials, there are situations G
which are unpredictable being sporadic, sudden, spontaneous and dynamic
in nature. Even with best of anticipation and arrangements in place, it
would get overwhelmed by the proportion of violence all across the State.
In such eventuality, it would be a case of collapse of State administration,
but cannot pass the muster of concerned officials being part of larger H
98 SUPREME COURT REPORTS [2022] 6 S.C.R.

A conspiracy. The officials are expected to respond to the evolving situation
while adhering to the norms, but may end up in a situation which can go
beyond their control at various places across the State owing to mass
violence.
(rr) The SIT had also closely examined the allegation of conspiracy
B in making kerosene bombs and came to the conclusion that there was no
evidence worthy of proceeding against the named offenders, much less
on the allegation of larger conspiracy for want of evidence regarding
meeting of minds in particular.
(ss) In reference to the argument that the trials against the named
C accused were being compromised by the public prosecutor (Mr. Arvind
Pandya), has also been rebutted by the SIT on the argument that the
public prosecutor to whom reference has been made by the appellant,
was not appointed by the State in any single criminal case investigated
by the SIT, but had appeared before the Nanavati-Shah Commission.
Further, he had resigned in 2008 before the SIT took over the investigation
D of the complaint dated 8.6.2006. He could not have, in any way, influenced
the trial in any of the specified cases. Out of nine cases, trial in eight
cases had been completed under the gaze of SIT and in none of the
cases, any adverse opinion has been recorded by the concerned Court
in that regard. Thus, the plea in support of the allegation of larger
E conspiracy is tenuous.
(tt) As regards allegation No. (xv), it is submitted that public
prosecutor appointed by the State Government before the Nanavati-
Shah Commission had not been named in the complaint, but now during
the arguments, his role in compromising the trials was being highlighted.
F This cannot be countenanced.
(uu) Significantly, the contents of the complaint dated 8.6.2006,
besides relying on the materials/affidavits filed before the Nanavati-Shah
Commission, also note that there are some matters which could not have
been considered by Nanavati-Shah Commission and reference is made
G to such matters. Even that aspect has been duly investigated and the
opinion formed by the SIT was that the same are unconnected with the
allegations of larger conspiracy.
(vv) Noticeably, the final report dated 8.2.2012 was presented by
the SIT before the Metropolitan Magistrate pursuant to the direction
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 99

given by this Court on 12.9.201184 even before the Nanavati-Shah A
Commission had submitted its report, which was tabled in the Assembly
on 18.2.2012. Furthermore, the allegation regarding larger conspiracy of
State-sponsored violence noted in the complaint, was required to be
investigated only in the last case investigated by the SIT i.e., Gulberg
Society case being CR No. 67/2002. Not even a remote reference was
B
made to such allegation in the other eight cases investigated by the SIT.
Similarly, no allegation about unfair investigation done has been made
against the SIT in any of those cases including before this Court, except
in the present case.
(ww) It is urged that since the appellant has now chosen not to
pursue allegation Nos. (i) and (iv), the entire basis of the complaint dated C
8.6.2006 has become irrelevant and redundant. For, stated allegations
were essentially about the larger conspiracy involving highest political
authority/bureaucracy and actions or inactions of the high officials
unfolding under dictation of the then Chief Minister. The remaining
allegations would then be unconnected with the larger conspiracy and, D
therefore, need not be taken forward against the then Chief Minister
and high officials of the State Government. In any case, every allegation
has been duly enquired into and investigated by the SIT before forming
its opinion that no case had been made out against the offenders named
in the stated complaint.
E
(xx) The appellant, however, has now changed the goalpost by
placing emphasis on transcripts of Tehelka Tape on the argument that
genuineness of the tape had not been doubted; and, therefore, to contend
that the contents of the tape inspire confidence to proceed against the
persons named in the complaint. On the other hand, even though the
Tehelka tape did not form part of the complaint dated 8.6.2006, which F
was filed almost four years after the events of February, 2002 as the
Tehelka tape surfaced only on 27.10.2007, yet the SIT enquired into the
same in the context of the persons named in the complaint as offenders.
For, in law, it could be used as extra judicial confession only against the
maker of the statement and not against other persons though referred to G
in such a statement85. In that light, the Tehelka tapes, heavily relied upon
by the appellant, were of no avail. Notably, the tapes have been relied in
84
supra at footnote No. 26
85
R.K. Anand vs. Registrar, Delhi High Court, (2009) 8 SCC 106 and Rajat Prasad vs.
Central Bureau of Investigation, (2014) 6 SCC 495 H
100 SUPREME COURT REPORTS [2022] 6 S.C.R.

A three other cases investigated by the SIT and also in Gulberg Society
case being CR No. 67/2002, but the trial Court has adversely commented
upon the said tape, which decision is now subject matter of appeal before
the High Court and this Court in those cases.
(yy) Further, even if the material in Tehelka sting operation being
B a genuine work is to be accepted, it does not follow that the contents of
such tape would have probative value. Upon investigation, if it was to be
found that the tape and the contents have probative value, only then it
could be used, that too against the maker of the statement alone and not
against any other person.
C (zz) It was pointed out that Mr. Ashish Khaitan was examined as
PW-313 in trial of Gulberg Society case being CR No. 67/2002 and his
version has been duly dealt with in the said judgment by the Trial Court,
for not accepting the contents thereof.
(aaa) It is urged that the complainant has been continuously
D introducing new arguments/allegations at different stages of the
proceedings. That has been depicted in the chart given in paragraph 45
of the Final Note Part-III of respondent No. 2, which reads thus: -

E

F

G

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 101

A

B

C

D

E

F

G

H
102 SUPREME COURT REPORTS [2022] 6 S.C.R.

A

B

C

D

E

F

G

(bbb) Insofar as fresh allegation regarding criminal negligence of
fire brigade in Ahmedabad under Mr. P.C. Pande, it obviously overlooks
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 103

the fact that fire brigade comes within the Ahmedabad Municipal A
Corporation and not State police. Mr. P.C. Pande was Commissioner of
Police of Ahmedabad city and had nothing to do with the functioning of
fire brigade. In the complaint, a vague allegation is made that the fire
brigade/help did not reach on time when needed. However, that was
owing to in many of the disturbed areas, roads were blocked by putting
B
obstacles.
(ccc) Similarly, the allegation regarding post mortem of dead bodies
at Godhra Railway station being part of larger conspiracy, is founded on
conjectures and surmises. The Godhra incident was fully investigated
and tried in which no such case was put forth. That matter had travelled
to the High Court as well and now it is pending in this Court. The issues C
regarding necessity to do post mortem of the dead bodies in the Railway
yard and the manner of doing it, has been examined in those proceedings.
In the name of protest petition, the appellant intends to enlarge the scope
of enquiry including into fresh matters such as the manner in which the
fire occurred in the two coaches of Sabarmati Express on 27.2.2002, D
which aspect has been thoroughly investigated in that case. The appellant
had gone to the extent of levelling insinuation by attributing fire ignited
by the persons inside the train themselves or by other persons from the
same community as part of larger conspiracy to spread hatred and
violence across the State. That too, with the involvement of the political
dispensation at the highest-level being part of larger criminal conspiracy. E
The attempt of the appellant is to bring in all other cases (Sardarpura
case, Deepda Darwaza case, Ode case, Naroda Patiya case, Naroda
Gaam case, Best Bakery case, Bilkis Bano case etc.), which have already
been thoroughly investigated and tried by the concerned Court including
in respect of charge of criminal conspiracy at the concerned level in the F
given case. That cannot be countenanced.
(ddd) It is urged that the appellant is also ill-advised to heavily
rely upon certain information in a book written by former Major General,
who never came to give his statement before the SIT, despite the public
notice issued on 28.4.2008 after the SIT was appointed by this Court to G
investigate nine major cases. The book was written only in 2018. The
veracity of the contents thereof would only be in the realm of guess
work.
(eee) It is urged that the SIT has done everything to the best of
its ability and as a team, investigated all the nine major cases assigned to H
104 SUPREME COURT REPORTS [2022] 6 S.C.R.

A it by the Court. Despite the commendation by this Court about the
humongous task undertaken by the SIT, the appellant had the impudence
to make submission bordering on questioning the integrity of the SIT
appointed by this Court; and though the work was completed by it under
the strict vigil of this Court including the Amicus Curiae who had taken
assistance of all the stakeholders and also Ms. Teesta Setalvad. The
B
Amicus Curiae, in one sense, was discharging the role of investigating
into the work of Supreme Court appointed investigators (the SIT) –
investigating the investigators. The SIT, after taking over investigation
of nine major cases assigned to it by this Court, filed supplementary
chargesheets in all those cases and also pursued the cases until the
C stage of trial, and is still reporting about the progress of those cases to
this Court periodically.
(fff) As regards the investigation of complaint dated 8.6.2006, it
has been done by more than one investigating officer during relevant
periods at different point of time as per the exigency and direction of this
D Court, but the finding and observations of the SIT in every report have
been consistent. Significantly, the members of the SIT have been
continuing to function under the directions of this Court even after their
superannuation from service, only because this Court had been satisfied
about their performance. At one stage, similar attempt was made by the
appellant, as a result of which the Court had to stay the trial of Gulberg
E Society case being CR No. 67/2002, which was eventually lifted on
1.5.200986 for the reasons noted in the said order. In fact, this Court had
taken note of the misadventure of Ms. Teesta Setalvad in forwarding
her letters written to Chairperson of the Supreme Court appointed SIT
to the OHCHR, Geneva and that upon her undertaking that she will not
F do so in future, the matter stood closed. It is urged that insinuations have
been made against the Supreme Court appointed SIT and, in the process,
the wisdom of this Court has been questioned in accepting the work of
SIT as fair and complete investigation of the allegations in the stated
complaint.
G (ggg) It is a matter of record that this Court reposed complete
trust in the SIT not only by entrusting responsibility of investigation of
the stated crime, but also to ensure that the trial of all those cases
proceeded in a fair manner and not compromised, by giving authority to
SIT to recommend names of able and apolitical lawyer to be appointed
86
H supra at footnote No. 18
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 105

as public prosecutor(s), including providing protection to witnesses when A
required. With the untiring efforts of the Supreme Court appointed SIT,
trials of eight other cases ended in substantial number of convictions
including imposition of capital punishment. Such being the track record
of the SIT, which has been closely monitored by this Court from time to
time to its satisfaction and commended upon on more than one occasion,
B
yet the appellant has gone to the extent of questioning the integrity of the
SIT, despite the fairness in the investigation. Such a plea cannot be
countenanced and is in the nature of questioning the authority and wisdom
of this Court in expressing satisfaction about the performance of the
SIT and commending expressly on more than one occasion inter alia,
in its orders dated 1.5.200987 and 13.4.2017. C
(hhh) Notably, the stated complaint was submitted by appellant –
Zakia Ahsan Jafri and as no follow-up steps were taken by the concerned
authorities, a writ petition was filed by her for issuing direction to the
competent authority to register the same as FIR to be investigated by an
independent agency (not the Supreme Court appointed SIT). Ms. Teesta D
Setalvad joined as petitioner No. 2 for the first time in these proceedings
before the High Court. The High Court vide judgment dated 2.11.2007
in Criminal Application No. 421/2007, opined that Ms. Teesta Setalvad
had no locus to maintain such application and decided the writ petition at
the instance of appellant – Zakia Ahsan Jafri, by permitting her to file
appropriate private complaint before the Magistrate under Section 190 E
of the Code. That opinion of the High Court has not been reversed by
this Court while disposing of SLP(Crl.) No. 1088/2008 on 12.9.2011 88.
(iii) As noted earlier, even though the appellant had been pursuing
SLP(Crl.) No. 1088/2008 before this Court for direction to the competent
authority to register the complaint as FIR, this Court permitted the trial F
of CR No. 67/2002 concerning Gulberg Society to proceed, in which
appellant – Zakia Ahsan Jafri was examined as PW-337 on 22.10.2010.
Even before the trial Court, she did not raise any matter in her evidence
regarding larger conspiracy referred to in her complaint dated 8.6.2006.
The material on record would clearly suggest that she is being driven by G
Ms. Teesta Setalvad to pursue and so to say, precipitate her complaint.
The complaint, however, is vague and bereft of allegations of criminality.
At best, the allegations founded on the material/affidavits filed before
87
supra at footnote No. 18
88
supra at footnote No. 26 H
106 SUPREME COURT REPORTS [2022] 6 S.C.R.

A the Nanavati-Shah Commission, were indicative of dereliction of duty of
concerned officials/authorities. The complaint is based essentially on
the statements of Mr. R.B. Sreekumar, Mr. Rahul Sharma and Mr. Sanjiv
Bhatt, which may support the allegations of inaction or dereliction of
duty by the concerned high officials. The claims made by these three
persons, however, have been contradicted by the concerned persons on
B
the basis of contemporaneous record. The complainant – Zakia Ahsan
Jafri yet wants to proceed including on the basis of statements of these
three officials against the version of the entire establishment, which is
backed by contemporaneous record.
(jjj) Mr. R.B. Sreekumar had referred to Register, which was his
C personal diary and not official record, as investigated and found by the
SIT. Being his personal diary, it could not be used against the offenders
named in the complaint and in any case, the contents thereof being in the
nature of entries made in the usual course of official business by the
concerned department expected to act in tandem with concerned official
D agencies. The contents of the diary, in the opinion of the SIT, were of no
avail. He had filed affidavit before the Nanavati-Shah Commission in
the year 2009 for the first time. In the earlier affidavits, no reference
was made to the said diary/register. Moreover, Mr. R.B. Sreekumar
was posted in Law & Order Division only in April, 2002 after the ghastly
events had already unfolded in February and March, 2002. Thus, he had
E no personal knowledge about any instructions, much less allegedly given
to the high officials or by high officials to their subordinates at the relevant
point of time as being in the nature of criminal conspiracy.
(kkk) Similar is the case of Mr. Rahul Sharma, another star
witness of the complainant (appellant). He had referred to the call records
F in question for the first time only in 2008. Before that, he had filed more
than one affidavit before the Nanavati-Shah Commission making no
reference to the said call records. Further, in the subsequent affidavit,
the stand taken by him is completely different. It is the case of the SIT
that after lapse of one year, no details regarding call records are preserved
G by the service provider. To the same end, seizure of mobile phone after
lapse of seven years would have had served no purpose. Further, the
authentication of the call details/records supplied by Mr. Rahul Sharma
and the call details/records available with the SIT were duly considered
before forming opinion by the SIT. Mr. Rahul Sharma claims to have
been authorised to assist the supervisory officer in investigation of the
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 107

post-Godhra riot case, which were being investigated by Crime Branch A
– Ahmedabad city, by the then Commissioner of Police, Ahmedabad
City. He was neither investigating officer nor direct supervisory officer
in the Naroda Police Station CR No. I 193/2002. He claims to have
obtained compact disc containing call details in connection with stated
case of Naroda Police Station from two different cell phone service
B
providers (M/s. Cellforce and M/s. AT&T) containing call details of all
subscribers in Ahmedabad city and Godhra as case property of the
offences under investigation. However, he failed to hand over the said
case property to the investigating/supervisory officer of the case, nor
got it entered into the register of case property (Muddamal) and also not
informed the Court of jurisdiction about the seizure of aforesaid case C
property. Whereas, he produced the compact disc for the first time only
on 31.5.2008, for reasons best known to him. The compact disc produced
by Mr. Rahul Sharma before the Nanavati-Shah Commission was then
obtained by Mr. Amresh N. Patel, Jan-Sangharsh Manch from the
Commission of inquiry, as also, by the investigating officer. It was not
D
possible for the SIT to obtain certificate under Section 65B of the Indian
Evidence Act, 1872 as the original compact discs were never produced
by Mr. Rahul Sharma. Notably, the data from the compact discs were
admittedly copied by Mr. Rahul Sharma in his personal computer and in
the changed format i.e., ZIPPED format. In other words, Mr. Rahul
Sharma had failed to ensure the integrity of the data and never produced E
the original compacts discs of the two mobile service providers. Despite
that, the SIT attempted to authenticate the available data by sending it to
Forensic Science Laboratory, Ahmedabad for examination, comparison
and checking the contents available therein. The laboratory has opined
that MD5 Hash value of the files in all the three compact discs were
F
found to be same, but the call data records in the CPU of personal
computer of Mr. Rahul Sharma indicated that the files containing call
data records or fragments of the files could not be found on the computer
storage media. The SIT also recorded statements of various witnesses
under Section 161 of the Code for tracing the original compact discs and
authenticating the available data (late Mr. Ashok Bhatt, Mr. P.C. Pande, G
Dr. Anil T. Patel), but the original compact discs could not be traced.
The final report has analysed the statements of the said persons and the
opinion of the SIT in detail. It was noticed that the call details of the
Gandhinagar tower where most of the functionaries of the Government
of Gujarat were placed, was not available with the SIT, as the same had
H
108 SUPREME COURT REPORTS [2022] 6 S.C.R.

A not been requisitioned/obtained by Mr. Rahul Sharma during investigation
of the riot cases. The SIT has thoroughly investigated even this aspect
and all related material and having found that the said material appears
to be doctored and fabricated and not in consonance with the official
records. It thus noted its conclusion that the same was of no avail to
proceed against the named offenders for offence of larger conspiracy in
B
connection with C.R. No. 67/2002 concerning Gulberg Society or
otherwise.
(lll) It is urged that the appellant is heavily relying on the statements
of Mr. Rahul Sharma, despite the fact that in the complaint dated
8.6.2006, he was named as offender No. 45 and accusations against
C him were specifically mentioned against his name in the body of the
complaint while also showing him as witness No. 5 in the same complaint.
However, the copy of complaint filed before this Court reveals that the
relevant paragraph making accusations against Mr. Rahul Sharma has
been deleted alongwith his name as offender No. 45 in the complaint.
D This is a serious matter.
(mmm) The case of Mr. Sanjiv Bhatt is still worse. He has been
convicted for murder (as mentioned in paragraph 7 under the head
“Short Pointers” in the Convenience Compilation filed on behalf
of respondent No. 2); and for planting narcotics in the room of a lawyer
E in some other State. He had claimed that he was present in the meeting
convened on 27.2.2002. But all officers who were present in the meeting,
have denied his claim.
(nnn) Relying on the observations made in the decision in Sanjiv
Rajendra Bhatt vs. Union of India & Ors. 89, it was urged that the
F same were indicative of the character and conduct of Mr. Sanjiv Bhatt,
who falsely claimed to have remained present during the meeting of
high officials on 27.2.2002, where the then Chief Minister had allegedly
made certain objectionable utterances.
(ooo) The appellant wants this Court to disregard the version of
G all other high officials and to proceed against the named offenders only
on the basis of version of three persons proclaiming themselves as being
wedded to truth. As a matter of fact, it is urged that all the three persons
on whose statements emphasis has been placed, have been adversely
commented upon not only by the Nanavati-Shah Commission, but also
89
H (2016) 1 SCC 1 (paras 49 to 55)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 109

by the SIT in its final report including the damning observations by this A
Court against Mr. Sanjiv Bhatt.
(ppp) Moreover, the appellant has repeatedly argued that the SIT
did not record statement of Mr. Anil Patel, which fact is contrary to the
record. At the same time, the appellant placed reliance on the statements
of Mr. Anil Patel, who has not been named as offender in the complaint B
dated 8.6.2006. In fact, there are three persons having common name.
The first is – Mr. Anil Tribhovandas Patel, the then Minister, Gujarat;
second being Mr. Anil Shankerbhai Patel, a VHP worker; and the third
– Dr. Anil Patel, a general practitioner at Ahmedabad City.
(qqq) As stated earlier, the repeated grievance made on behalf of C
the appellant that crucial witness – Mr. Anil Patel was not even examined
by the SIT, is incorrect submission. In that, there are three persons with
same name and the person who has been stung by operation Tehelka is
Mr. Anil Shankerbhai Patel, a VHP worker, whose statement was duly
recorded by the SIT including the other two persons with the same name,
namely, Dr. Anil Patel and Mr. Anil Tribhovandas Patel, the then Minister, D
Gujarat. The SIT had also recorded statements of 13 other persons out
of total 18 involved in sting operation, which were found to be relevant
for the purpose of enquiry into the allegations under consideration.
(rrr) As regards the allegation regarding dead bodies having been
paraded, the same has been fully enquired into and the SIT was of the E
opinion that no such event of parading had occurred at any place.
However, a novel argument is being pursued by the appellant before this
Court. For, the allegation in the complaint was of having handed over
dead bodies to private persons, namely, Hasmukh Patel and Jaideep
Patel. During the investigation, it has come to the fore that the letter F
written by the Tehsildar, handing over bodies, mentioned the name of
Jaideep Patel, but that was not because of the instructions given by any
superior authority. Further, the local Tehsildar has been proceeded
departmentally for this folly. The contemporaneous record including the
statements of concerned persons, however, reveal that the dead bodies
were carried in closed vehicles under police escort, alongwith whom G
Mr. Jaideep Patel had merely travelled. The process of handing over of
the dead bodies to the officials of the hospital at Ahmedabad was in fact
done by the officials/police accompanying the dead bodies and not by
Mr. Jaideep Patel. After taking charge of the dead bodies, the officials
of hospitals handed over the same, after due identification, to their relatives H
110 SUPREME COURT REPORTS [2022] 6 S.C.R.

A and the bodies which could not be identified despite effort of DNA test
matching, were cremated by the local officials at Ahmedabad. There is
not even a tittle of material to indicate that the bodies were taken in open
vehicles or so to say, paraded from Godhra to Ahmedabad or anywhere
else by any group of private persons before cremation. The decision to
take bodies to Ahmedabad was a conscious and unanimous decision of
B
the concerned authorities at the local level and not on instructions or
directions given by the then Chief Minister, as alleged. It was so decided
as majority of the dead persons were from Ahmedabad and nearby places.
In that, out of 58 dead bodies, 4 bodies belonging to Dahod, Vadodara,
Panchmahal and Anand districts were handed over to their legal
C representatives after identification at Godhra itself. The remaining 54
bodies were sent under police escort to Ahmedabad, as most of the
victims were resident of Ahmedabad and nearby areas. Out of 54 bodies,
35 could be identified and handed over to their relatives on 28.2.2002.
Remaining 19 bodies were cremated by the officials on 1.3.2002, out of
which 12 could be later on identified by DNA test and 7 remained
D
unidentified. Hence, it is seen that it became convenient for the relatives
of the deceased persons to collect the dead bodies from Ahmedabad. It
was also decided to take the dead bodies during night time under police
protection to avoid any untoward situation. Such being the material on
record, the argument regarding the bodies being paraded, much less as a
E part of larger conspiracy at the highest level, is preposterous.
(sss) To begin with, the appellant had argued that dead bodies
were purposely paraded all over, but later improved upon that grievance
by showing that parading of bodies was done after hospital handed over
bodies, duly identified, to the respective relative until the same was taken
F for cremation.
(ttt) Significantly, the complaint dated 8.6.2006 neither makes
mention about hate speeches being outcome of larger conspiracy nor it
is alleged that so-called parading of dead bodies was resorted to as part
of larger conspiracy.
G (uuu) Much had been argued by the appellant about no investigation
by the SIT in respect of hate speeches. It is submitted by the learned
counsel for the SIT that thousands of cases were reopened by this Court,
wherein ‘A’ Summary Report(s) came to be filed and in some of those
cases, charges regarding hate speeches have been enquired into.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 111

(vvv) It is urged that the allegations regarding build-up or laxity A
or about the post-mortem done in open in Railway yard, failure to provide
for adequate bandobast or arranging fire brigade on time, are not
supported by any credible material, much less to raise a strong suspicion
to proceed against the named offenders being involved in larger
conspiracy. Appellant had the gumption to contend, suggestive of the
B
fact that the train was set on fire at Godhra by the passengers themselves
or by persons belonging to their own community who were engaged in
doing preparatory (build-up) arrangements.
(www) The attempt of the appellant was to present rambling facts
to create confusion, leaving out core issues that needed to be focussed
to cull out the material on the basis of which an objective and decisive C
opinion could be formed that the offence of larger conspiracy at the
highest level had been committed and the named offenders have
committed the same. That is completely absent and for which reason,
the appellant has chosen to make such pretentious presentation before
this Court including not to argue on allegation Nos. (i) and (iv) concerning D
larger conspiracy involving the then Chief Minister and other high officials
of the State Government. Instead, the appellant has now adopted a
stratagem only to focus on the other allegations in the complaint and
further allegations mentioned in the protest petition on the specious
argument that those allegations can be made good on the basis of
undisputed documents and record. This is a subterfuge created by the E
appellant for achieving the ill-intended design of keeping the charge or
allegation of larger conspiracy as noted in allegation nos. (i) and (iv)
open, by adopting circuitous route little realising that the other allegations
are all unconnected and have no causal bearing with the allegations of
larger conspiracy by the then Chief Minister and other high officials F
named as offenders in the complaint.
(xxx) The appellant had the audacity to assert in the protest petition
that it is open to her to keep on adding new materials and allegations
which the Court is bound to examine to do complete justice, so that she
would succeed in her design to keep the pot boiling and politicising the G
crime. This indeed was being done at the instance of the group of persons
in the name of so-called public-spirited persons like Ms. Teesta Setalvad.
The protest petition is not a genuine protest petition by any standard.
(yyy) Indisputably, large number of criminal cases came to be
registered after the mass violence across the State. It is stated that H
112 SUPREME COURT REPORTS [2022] 6 S.C.R.

A around 2000 cases came to be registered concerning the mass violence
out of which nine major cases were assigned to the SIT by this Court
vide order passed in writ petition filed by NHRC. In none of the cases
including nine cases, any evidence of alleged larger conspiracy came to
the fore either during the investigation or during the trial of those cases.
It is only in the complaint under consideration that allegation of larger
B
conspiracy at the highest level of Government has been made, which
remained unsubstantiated, leave alone creating suspicion against the
offenders named in the complaint. If this conjured plea was to be
encouraged, it may give rise to uncertainty and possibility of reopening
hundreds of cases, already concluded and may be pending in appeals
C before the High Court or this Court.
(zzz) The attempt of the appellant is to continue with unfounded
allegations against the then Chief Minister/politicians/high officials/
bureaucrats without raising those allegations during the investigation of
CR No. 67/2002 concerning Gulberg Society at the earliest opportunity
D after publication of notice by the SIT inviting public to give their statement,
if they were so interested and had any specific information about such
crime. No one came forward including Mr. R.B. Sreekumar, Mr. Rahul
Sharma and Mr. Sanjiv Bhatt, who now claim to be the protagonist of
truth to depose those facts before the SIT. As a matter of fact, appellant
– Zakia Ahsan Jafri, who has been examined as witness in Gulberg
E Society case being CR No. 67/2002 as PW-337 was not an eye-witness
as such, but was only present in the house when the events unfolded.
She had admitted of having given statement on affidavit to the Nanavati-
Shah Commission, as well as before the Court under instructions of Ms.
Teesta Setalvad and Mr. R.B. Sreekumar. Such being the case coupled
F with the limited remit given to the SIT by this Court, the question of
directing further investigation of any other matter besides the allegations
in the complaint and at this distance of time, would be travesty of justice,
abuse of process and ought not to be countenanced.
(aaaa) The whole attempt of the appellant appears to be to
G persuade this Court to direct the SIT to reinvestigate the crime of criminal
conspiracy, which has already been tried by the Court of competent
jurisdiction, in which the accused named therein have already been
acquitted. Any such attempt would be infringement of their right
guaranteed under Section 300 of the Code and Article 22 of the
Constitution. If the appellant was so keen, she should have availed of
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 113

the opportunity in the form of liberty granted by the High Court on A
2.11.2007 by filing private complaint rather than pursuing allegations of
larger conspiracy or any crime other than enquired and tried in connection
with Gulberg Society case being CR No. 67/2002. Having failed to do so
and being party to the orders passed by this Court from time to time on
the special leave petition(s) filed by them against the order of the High
B
Court, it is not open to argue in the teeth of such directions. It is now too
late for them to contend that the complaint dated 8.6.2006 be proceeded
as a private complaint or be registered as FIR, much less to permit her
to raise fresh allegations in 2013 by way of protest petition.
(bbbb) It is the submission of the SIT that it had done much more
than “looking into” the complaint albeit under the supervision of this C
Court by examining and questioning several persons and presenting
periodical reports to this Court including the final report before the
Metropolitan Magistrate unlike in any other normal criminal case.
(cccc) At the end of the investigation done by the SIT, it has been
noticed that the allegation regarding larger conspiracy mentioned in the D
complaint dated 8.6.2006 was based on material which was either found
to be fabricated or unuseful, leave alone raising any ray of suspicion to
proceed against the named offenders.
(dddd) Involvement of Babu Bajrangi unravelled from Tehelka
Tape transcript, does not have any impact on the allegation regarding E
larger conspiracy, which alone needs to be dealt with in these proceedings.
As a matter of fact, Babu Bajrangi had been named as accused in Gulberg
Society case being CR No. 67/2002 and the evidence against him has
been dealt with appropriately in that case, resulting in his conviction.
His version in the tape, at best would be in the nature of extra judicial F
confession to be used against him and not against any other person.
(eeee) Allegation of larger conspiracy at the highest level can be
proceeded further only if there is substantive evidence to establish the
same or could be so inferred on the basis of such substantive evidence.
The substantive evidence of Mr. Sanjiv Bhatt, who allegedly claimed to G
be present in the meeting of 27.2.2002, stands rebutted and falsified by
all the other persons who were actually and physically present in the
stated meeting, who in one voice mentioned that he was not present in
the meeting.

H
114 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (ffff) As a matter of fact, the SIT in the final report submitted
allegation-wise and offender-wise, concluded that no offence has been
made out, as alleged against any of the named offenders.
(gggg) The SIT had also considered the findings and
recommendations of NHRC while analysing the entire material collated
B by it during investigation. The same has been extensively discussed in
the final report from pages 312-320. Needless to underscore that the
findings and recommendations of the NHRC by itself cannot be the
basis to fasten criminal liability on the erring officials/administrators. For
that, hard evidence indicating the acts of commission or omission
constituting some offence is available either in the form of oral or
C documentary evidence. There must be substantive piece of material
which will pass the muster of admissible evidence before the Court of
law to fasten criminal liability. This is reinforced from the purport of
Section 15 of the Protection of Human Rights Act, 1993 or Section 6 of
the 1952 Act, as well.
D (hhhh) Similarly, some opinion formed or observation made in the
enquiry report of any private forum/commission also cannot have any
bearing on the criminal action to be instituted or pursued against any
erring official/administrator. Notably, in the present case, the complainant
has verily relied upon the affidavits of officials filed before the Nanavati-
E Shah Commission referring to revelation of relevant fact by certain
persons who themselves had no personal knowledge and their claim
regarding presence in the official meeting is falsified on the basis of
overwhelming evidence to the contrary. Merely because one person
claims about the existence of a particular fact, does not give rise to a
triable issue unless that version is corroborated by contemporaneous
F evidence/material and more so when there is substantive evidence to
indicate falsity of his claim. The private Commission founded its
observations on the basis of disclosure made by some unidentified
Minister. When in fact the overwhelming evidence indicated that no
cabinet minister was present in the review meeting, which was attended
G only by high officials presided over by the Chief Minister. Similarly, the
presence of Mr. Sanjiv Bhatt stands falsified by the consistent statements
given by high officials who were present in the meeting. All this has
been thoroughly analysed by the SIT and recorded in the final report. In
light of such overwhelming material, it was not even a case of slightest
of suspicion against the highest functionary of the State for having made
H any utterances attributed to him by these persons. Those utterances
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 115

being the fulcrum of the allegation regarding State sponsored violence, A
all other incidental allegations and more particularly, unconnected with
the theory of larger conspiracy by the highest office, must fall to the
ground being unsubstantiated. To buttress this argument, reliance has
been placed on contents of final report from pages 245-260.
(iiii) It is argued that the police report or chargesheet ought to B
contain crystalised case about the involvement of named offenders having
committed the offence under consideration and mere perception of
suspicion is of no avail. That is the mandate underlying Section 169 read
with 173(2)(i)(d) of the Code. Such case cannot be made out on the
basis of personal diary entries as observed in Central Bureau of
Investigation vs. V.C. Shukla & Ors.90. C
(jjjj) In other words, even if the material collated during the
investigation discloses suspicion, that may not be sufficient for the
investigating officer to opine that the offence has been made out, much
less have been committed by the offender/accused warranting his
prosecution in that regard. It is a different matter that the Magistrate for D
issuing process, taking cognizance or framing charge against such person,
can do so merely on the basis of strong suspicion. The scale of satisfaction
to be reached by the investigating officer for being convinced that an
offence has been committed and the concerned person is involved in the
commission of that offence, is qualitatively different than mere case of E
suspicion. For that, the investigating officer must be certain, at least
prima facie (in his mind), that the material/statement on which he
proposes to rely to prosecute any person would pass the muster of legally
admissible evidence during the trial. Indeed, such a view is a tentative
view to be taken by the investigating officer before presenting the
chargesheet for prosecuting named person for having committed F
(cognizable) offence in question on the basis of entirety of the material
in his possession. In other words, the job of an investigating agency does
not and cannot end in merely establishing a prima facie case of strong
suspicion. Whereas, he is obliged to unearth the entire truth and not
merely leave the job at the stage of strong suspicion. In doing so, the G
investigating officer does not merely rely upon the version of the
complainant but is obliged to examine the matter from all angles including
to test the authenticity of the possibilities emerging therefrom and then
forming his opinion as to what he would believe to be the true course of
90
(1998) 3 SCC 410 (Jain Havala Case) H
116 SUPREME COURT REPORTS [2022] 6 S.C.R.

A events. It must, therefore, follow that the investigating agency does not
act as mere post office, but is obliged in law to examine the veracity,
quality, believability of any material that is unearthed during the
investigation and then to form opinion (in its mind) on the totality of the
circumstances as discernible from the entirety of the materials on hand
and record that in the form of police report under Section 173 of the
B
Code to be presented before the Magistrate. The investigating agency,
by the nature of its duties, is required to adopt one version of the events
that it would believe to have occurred whilst submitting report under
Section 173 of the Code. In presenting a report to send the accused for
trial of being involved in commission of offence merely on the basis of
C suspicious circumstances, therefore, would be a case of abdication of
statutory duty of the investigating agency and may not also serve the
cause of justice.
(kkkk) It is submitted that there is hardly any argument presented
and brought home by the appellant regarding shortcomings in the material
D adverted to in the final report or about the improper understanding of the
SIT in that regard. Given the material and its analysis in the final report,
the conclusion reached by the SIT is unassailable, namely, that no case
had been made out to proceed against the persons named in the complaint
as offenders for offence of larger conspiracy or for that matter, any
other crime.
E
(llll) In substance, it is urged that no fault can be found with the
satisfaction recorded by the SIT in the final report that no case for
proceeding against the named offender has been made out, much less of
having indulged in larger criminal conspiracy. Even the Magistrate had
applied its mind to the totality of the material produced by the SIT
F alongwith the final report including the issues raised in the protest petition
whilst rejecting the same and accepting the final report of the SIT. To
buttress the argument that the investigation is the exclusive prerogative
of the SIT including to form opinion one way or the other on the basis of
the material collated by it during investigation and it does not affect the
powers of the Magistrate to direct further investigation, reliance is placed
G
on the decisions of this Court in State of Bihar & Anr. vs. JAC Saldanha
& Ors.91, M.C. Abraham & Anr. vs. State of Maharashtra & Ors.92
and Shariff Ahmed & Ors. vs. State (NCT of Delhi)93.
91
(1980) 1 SCC 554
92
(2003) 2 SCC 649
H 93
(2009) 14 SCC 184
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 117

SUBMISSIONS OF THE RESPONDENT – STATE OF A
GUJARAT
8. (a) The learned Solicitor General of India appearing for the
State of Gujarat broadly adopted the arguments advanced on behalf of
the SIT. In addition, he contended that the allegation regarding larger
conspiracy is being pursued by Ms. Teesta Setalvad only out of B
vengeance, so as to defame the entire State of Gujarat. The entire case
in the complaint was mainly resting upon the official records and affidavits
of officials of the State of Gujarat filed before Nanavati-Shah
Commission, to take forward allegation of State sponsored crime and of
targeting the minorities in the State. Appellant – Zakia Ahsan Jafri was
used as a tool to further the said design, who in turn fell prey to the C
influence exerted by Ms. Teesta Setalvad and lent her name as
complainant in the complaint dated 8.6.2006 being the widow of deceased
– Mr. Ehsan Jafri, Member of Parliament. There is material in the final
report suggestive of Ms. Teesta Setalvad having conjured facts and
evidence including fabrication of documents by persons who were to be D
prospective witnesses of the complainant. It is not only a case of
fabrication of documents, but also of influencing and tutoring the witnesses
and making them depose on pre-typed affidavit, as has been noted in the
judgment of the High Court dated 11.7.2011 in Criminal Miscellaneous
Application No. 1692/201194. That fact came to the fore in the admission
given by appellant – Zakia Ahsan Jafri during her cross-examination in E
the Gulberg Society case being CR No. 67/2002. As a matter of fact,
the learned Solicitor General would submit that the SIT should have
taken steps to prosecute Ms. Teesta Setalvad for damning the elected
representatives, bureaucracy and police administration of the whole State
of Gujarat for ulterior purposes. Even in the case of husband of F
Ms. Teesta Setalvad, the High Court had strongly deprecated his conduct.
(b) The learned Solicitor General took us through the judgment of
the High Court, dated 12.2.2015 dealing with applications for grant of
anticipatory bail filed by Teesta Atul Setalvad and her husband – Firozkhan
Sayeedkhan Pathan in connection with CR No. 1/2014 for offences G
punishable under Sections 420, 406, 468, 120-B of the IPC and Section
72 A of the Information Technology Act, 2000, pointing out observations
therein as to how the donation money collected by them in the name of
Sabrang Trust on the representation that the same would be spent on
94
B.H. Somani, Registrar vs. State of Gujarat & Anr. H
118 SUPREME COURT REPORTS [2022] 6 S.C.R.

A poor and needy persons affected by the mass violence, has been misused
and misappropriated for their personal pleasure and comfort. The High
Court rejected that application having found that custodial interrogation
of the applicants would be necessary. Relying on adverse observations,
it is urged that the present proceedings were not genuine proceedings
and the appellant has been set up, who is unaware about the real position.
B
Reliance was also placed on the decision of this Court in Testa
Setalvad95, dealing with the powers of police officer to seize certain
property in the course of investigation and the observations made by this
Court against Ms. Testa (Teesta) Setalvad and her husband for rejecting
the said appeal challenging the authority of the police officer to effect
C seizure.
(c) In substance, it is argued on behalf of the State of Gujarat that
the complaint dated 8.6.2006 had to be proceeded with only because of
the indulgence shown by this Court on 27.4.2009 96 by issuing direction
to the SIT to “look into” it and do the needful, whereafter subsequent
D steps have been taken by the SIT, strictly under the supervision of this
Court including close monitoring by the Amicus Curiae appointed by
this Court. It is, therefore, not open to the appellant to question the wisdom
of this Court in accepting the investigation made by the SIT as completed;
and also directing the SIT to present its report before the Magistrate
taking cognizance in Gulberg Society case being CR No. 67/2002 by
E reckoning the report as one under Section 173 of the Code. This Court
not only selected the major nine cases, which were required to be
investigated under Court monitoring by the SIT appointed by this Court,
but also selecting the SIT members who enjoyed high reputation and
wide experience behind them in reaching the high position. Besides, this
F Court empowered the SIT to not only fairly investigate, but to ensure
that the trial in connection with those cases is not compromised in any
manner, for which it could recommend the names of advocates as public
prosecutors and submit periodical report to this Court. This Court also
ensured fair trial by requesting the Chief Justice of the concerned High
Court to personally identify Judges to preside as Special Court for
G conducting the trial of those selected cases. Such is the gamut of directions
and sui generis procedure adopted by this Court in relation to the
complaint dated 8.6.2006, whilst allowing the trial in Gulberg Society

95
supra at Footnote No. 62
96
H supra at footnote Nos. 4 and 17
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 119

case being CR No. 67/2002 to proceed parallelly. Indubitably, the A
investigation could be done by the SIT only as per the remit given to it
and on the same logic even the Courts ought to deal with the matter on
the same scale.
(d) He invited our attention to Nanavati-Shah Commission report
and the conclusion recorded therein including about the prompt measures B
taken by the State Government, immediately after the incident in question
and thereafter to restore normalcy. The State Government had to deal
with a situation which was unparalleled and the entire State administration
was overrun by such unprecedented mass violence.
(e) In the end, he submits that even though the issues raised by C
the appellant are unfounded and unsubstantiated, the matter is being
pursued with full vigour at the behest of Ms. Teesta Setalvad, whose
sole intention is to keep the matter alive as rightly contended by the
learned counsel for the SIT. The learned Solicitor General argues that
there is no need to have a relook at the opinion of the SIT or case for
further investigation as propounded by the appellant. Even in his D
submission, neither the opinion formed by the SIT after thorough
investigation and proper analysis of the entire material collated by it
during investigation, is flawed nor the final order of the Magistrate to
accept the final report submitted by the SIT and in rejecting the protest
petition or that of the High Court in that regard, requires further scrutiny E
at the hands of this Court under Article 136 of the Constitution of India.
He has, therefore, prayed for dismissal of this appeal.
9. We have heard Mr. Kapil Sibal, learned senior counsel for the
appellant, Mr. Mukul Rohatgi, learned senior counsel for the SIT and
Mr. Tushar Mehta, learned Solicitor General for the State of Gujarat. F
CONSIDERATION
10. It is cardinal that upon receipt of the complaint such as dated
8.6.2006, the concerned police officer, if has reason to suspect the
commission of an offence referred to therein, ought to proceed with the
investigation consequent to registration of FIR under Section 154, since G
it discloses commission of a cognizable offence. As that did not happen,
the appellant had to approach the High Court for issuing direction to
register the stated complaint as FIR. Had the FIR been registered by
the station officer on his own, he would have been obliged to proceed
H
120 SUPREME COURT REPORTS [2022] 6 S.C.R.

A further as expounded in H.N. Rishbund97. In this decision, the Court,
inter alia, noted thus: -
“….. When information of the commission of a cognizable offence
is received or such commission is suspected, the appropriate police
officer has the authority to enter on the investigation of the same
B (unless it appears to him that there is no sufficient ground). But
where the information relates to a non-cognizable offence, he
shall not investigate it without the order of a competent Magistrate.
Thus it may be seen that according to the scheme of the Code,
investigation is a normal preliminary to an accused being put up
for trial for a cognizable offence (except when the Magistrate
C takes cognizance otherwise than on a police report in which case
he has the power under Section 202 of the Code to order
investigation if he thinks fit). Therefore, it is clear that when the
Legislature made the offences in the Act cognizable, prior
investigation by the appropriate police officer was contemplated
D as the normal preliminary to the trial in respect of such offences
under the Act. In order to ascertain the scope of and the reason
for requiring such investigation to be conducted by an officer of
high rank (except when otherwise permitted by a Magistrate), it
is useful to consider what “investigation” under the Code
comprises. Investigation usually starts on information relating to
E the commission of an offence given to an officer in charge of a
police station and recorded under Section 154 of the Code. If
from information so received or otherwise, the officer in charge
of the police station has reason to suspect the commission of an
offence, he or some other subordinate officer deputed by him,
F has to proceed to the spot to investigate the facts and
circumstances of the case and if necessary to take measures for
the discovery and arrest of the offender. Thus investigation
primarily consists in the ascertainment of the facts and
circumstances of the case. By definition, it includes “all
the proceedings under the Code for the collection of
G evidence conducted by a police officer”. For the above
purposes, the investigating officer is given the power to require
before himself the attendance of any person appearing to be
acquainted with the circumstances of the case. He has also the

97
H supra at Footnote No. 37
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 121

authority to examine such person orally either by himself or by a A
duly authorised deputy. The officer examining any person in the
course of investigation may reduce his statement into writing and
such writing is available, in the trial that may follow, for use in the
manner provided in this behalf in Section 162. Under Section 155
the officer in charge of a police station has the power of making
B
a search in any place for the seizure of anything believed to be
necessary for the purpose of the investigation. The search has to
be conducted by such officer in person. A subordinate officer
may be deputed by him for the purpose only for reasons to be
recorded in writing if he is unable to conduct the search in person
and there is no other competent officer available. The investigating C
officer has also the power to arrest the person or persons suspected
of the commission of the offence under Section 54 of the Code. A
police officer making an investigation is enjoined to enter his
proceedings in a diary from day-to-day. Where such investigation
cannot be completed within the period of 24 hours and the accused
D
is in custody he is enjoined also to send a copy of the entries in the
diary to the Magistrate concerned. It is important to notice that
where the investigation is conducted not by the officer in charge
of the police station but by a subordinate officer (by virtue of one
or other of the provisions enabling him to depute such subordinate
officer for any of the steps in the investigation) such subordinate E
officer is to report the result of the investigation to the officer in
charge of the police station. If, upon the completion of the
investigation it appears to the officer in charge of the police
station that there is no sufficient evidence or reasonable
ground, he may decide to release the suspected accused, if
F
in custody, on his executing a bond. If, however, it appears
to him that there is sufficient evidence or reasonable
ground, to place the accused on trial, he is to take the
necessary steps therefore under Section 170 of the Code.
In either case, on the completion of the investigation he
has to submit a report to the Magistrate under Section 173 G
of the Code in the prescribed form furnishing various
details. Thus, under the Code investigation consists generally of
the following steps: (1) Proceeding to the spot, (2) Ascertainment
of the facts and circumstances of the case, (3) Discovery and
arrest of the suspected offender, (4) Collection of evidence relating
H
122 SUPREME COURT REPORTS [2022] 6 S.C.R.

A to the commission of the offence which may consist of (a) the
examination of various persons (including the accused) and the
reduction of their statements into writing, if the officer thinks fit,
(b) the search of places or seizure of things considered necessary
for the investigation and to be produced at the trial, and (5)
Formation of the opinion as to whether on the material
B
collected there is a case to place the accused before a
Magistrate for trial and if so taking the necessary steps for
the same by the filing of a charge-sheet under Section 173.
The scheme of the Code also shows that while it is permissible
for an officer in charge of a police station to depute some
C subordinate officer to conduct some of these steps in the
investigation, the responsibility for every one of these steps is that
of the person in the situation of the officer in charge of the police
station, it having been clearly provided in Section 168 that when a
subordinate officer makes an investigation he should report the
result to the officer in charge of the police station. It is also
D
clear that the final step in the investigation, viz. the
formation of the opinion as to whether or not there is a
case to place the accused on trial is to be that of the officer
in charge of the police station. There is no provision permitting
delegation thereof but only a provision entitling superior officers
E to supervise or participate under Section 551.”
(emphasis supplied)”
98
11. This Court in Dayal Singh noted that the investigating officer
is obliged to act as per the Police Manual and known canons of practice
while being diligent, truthful and fair in his/her approach and investigation.
F It has been noted in the reported decision that an investigating officer is
completely responsible and answerable for the manner and methodology
adopted in completing his investigation99. Concededly, upon completion
of investigation, the investigating officer is obliged to submit report setting
out prescribed details, to the Magistrate empowered to take cognizance
of the offence referred to therein, without unnecessary delay. The report
G so presented is the conclusion reached by the investigating officer on
the basis of materials collected during investigation. The duty of the
investigating officer is to collate every relevant information/material during
98
supra at Footnote No. 57
99
Also see JAC Saldanha & Ors. (supra at Footnote No. 91), M.C. Abraham (supra
H at Footnote No. 92) and Shariff Ahmed (supra at Footnote No. 93)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 123

the investigation, which he must believe to be the actual course of events A
and the true facts unraveling the commission of the alleged crime and
the person involved in committing the same. He is expected to examine
the materials from all angles. In the event, there is sufficient evidence or
reasonable ground that an offence appears to have been committed and
the person committing such offence has been identified, the investigating
B
officer is obliged to record his opinion in that regard, as required by
Section 173(2)(i)(d) of the Code. In other words, if the investigating
officer intends to send the accused for trial, he is obliged to form a firm
opinion not only about the commission of offence, but also about the
involvement of such person in the commission of crime.
12. Such opinion is the culmination of the analysis of the materials C
collected during the investigation - that there is “strong suspicion” against
the accused, which eventually will lead the concerned Court to think
that there is a ground for “presuming” that the accused “has” committed
the alleged offence; and not a case of mere suspicion. For being a case
of strong suspicion, there must exist sufficient materials to corroborate D
the facts and circumstances of the case; and be of such weight that it
would facilitate the Court concerned to take cognizance of the crime
and eventually lead it to think (form opinion) that there is ground “for
presuming that the accused has committed an offence”, as alleged – so
as to frame a charge against him in terms of Section 228(1) or 246(1) of
the Code, as the case may be. For taking cognizance of the crime or to E
frame charges against the accused, the Court must analyze the report
filed by the investigating officer and all the materials appended thereto
and then form an independent prima facie opinion as to whether there
is ground for “presuming” that the accused “has” committed an offence,
as alleged. (It is not, “may” have or “likely” to have committed an offence, F
but a ground for presuming that he has committed an offence). The
Magistrate in the process may have to give due weightage to the opinion
of the investigating officer. If such is to be the eventual outcome of the
final report presented by the investigating officer, then there is nothing
wrong if he applies the same standard to form an opinion about the
materials collected during the investigation and articulate it in the report G
submitted under Section 173 of the Code. It may be useful to refer to the
decisions adverted to in Afroz Mohd. Hasanfata100 including in the
case of Ramesh Singh101 and I.K. Nangia102.
100
supra at Footnote No. 31
101
supra at Footnote No. 41
102
H
supra at Footnote No. 42
124 SUPREME COURT REPORTS [2022] 6 S.C.R.

A 13. After cogitating over the rival submissions, the foremost issue
that needs to be answered is about the remit of the SIT to investigate the
matter further and correspondingly that of the Magistrate, in the peculiar
facts of the present case. It is noticed that appellant had filed a complaint
dated 8.6.2006 by which time the FIR in respect of the incident unfolded
on 28.2.2002 in Gulberg Society including involving the dastardly attack
B
on the husband of the appellant and others was already registered and
proceeded further by the local police as per the provisions of the Code.
Contemporaneously, in the proceedings filed before this Court including
by the NHRC, the grievance regarding improper investigation in respect
of several cases registered across the State of Gujarat in reference to
C the mass violence during the relevant period including four crimes in
respect of Gulberg Society episode were being examined. During the
same time, appellant was pursuing her complaint dated 8.6.2006
addressed to the Director General of Police, Gujarat. As no response
was received, the appellant was advised to file application before the
High Court for issuing direction to the Gujarat police to register the said
D
complaint as FIR. That petition was finally dismissed by the High Court
on 2.11.2007, whereby appellant was relegated to file appropriate private
complaint and invoke Section 190 read with Section 200 of the Code.
This decision was assailed by filing SLP(C) No. 1088/2008, which
indisputably was heard (allowed to be heard by the appellant without
E any demur) along with the petitions pending before this Court including
the petition filed by the NHRC.
14. The common order passed by this Court on 26.3.2008103 leaves
no manner of doubt that the four crimes registered in respect of Gulberg
Society were to be investigated further by the SIT constituted by this
F Court in terms of the same order. In respect of the complaint submitted
by appellant dated 8.6.2006, a specific order came to be passed by this
Court on 27.4.2009104, thereby directing the SIT to look into the matter
and take steps as required by law and submit report to this Court within
three months. Finally, the SLP filed by the appellant and Ms. Teesta
Setalvad was disposed of on 12.9.2011105 until which date, the SIT
G continued with the investigation/enquiry into the stated complaint and
submitted appropriate report(s) to this Court. We must assume, and there

103
supra at Footnote Nos. 6 and 16
104
supra at Footnote Nos. 4 and 17
105
H supra at Footnote No. 26
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 125

could be no other import or assumption, that this Court was all throughout A
conscious of the fact that the four crimes registered pertaining to the
Gulberg Society including the gruesome killing of husband of appellant
and others, were already being investigated by the SIT and proceeded
for trial consequent to filing of the chargesheet/supplementary chargesheet
by the SIT. Concededly, this Court by an express order, had permitted
B
those trials to continue further. In those trials, the allegations of criminal
conspiracy and the commission of crime pursuant to such criminal
conspiracy had already been put in issue. In that sense, the limited aspect
of the contents of the complaint dated 8.6.2006, which remained to be
dealt with was about the allegations of larger criminal conspiracy at the
highest level resulting into mass violence across the State during the C
relevant period.
15. In other words, the steps taken by the SIT during the pendency
of proceedings before this Court and even after the disposal of the SLP
filed by the appellant on 12.9.2011106, were under the clear directions
and aegis of this Court. The tenor of directions issued by this Court are D
ascribable to the plenary powers exercised under Article 142 of the
Constitution. In that, this Court consciously allowed the (four) crimes
registered concerning Gulberg Society unfolded on 28.2.2002 to proceed
for trial, including the charge of criminal conspiracy for commission of
such offence; and at the same time, showed indulgence to the appellant
by directing the SIT to look into the complaint dated 8.6.2006 – obviously, E
in respect of matters which were not overlapping with the trial(s)
pertaining to Gulberg Society case(s) and other cases investigated by
the SIT.
16. Notably, this Court consciously directed, vide order dated
7.2.2013107, to treat the statements recorded by the SIT in connection F
with the investigation/enquiry concerning the complaint of appellant as
made under Section 161 of the Code; and to form part of the report
submitted by the SIT to the Court concerned, which had taken cognizance
of Crime Report No. 67/2002 concerning Gulberg Society, in terms of
order dated 12.9.2011108, treating it as a police report under Section G
173(2) of the Code. This presupposes that the further investigation by
the SIT was on the assumption that the complaint dated 8.6.2006 may
106
supra at Footnote No. 26
107
see para 5(y) above
108
supra at Footnote No. 26 H
126 SUPREME COURT REPORTS [2022] 6 S.C.R.

A contain new information/material other than already enquired into in
connection with Crime Report No. 67/2002 – as permissible under Section
173(8) of the Code. No more and no less.
17. All the aforestated circumstances and the judicial orders passed
by this Court from time to time on the petition filed by the appellant
B would go to show that this Court had implicitly rejected her prayer to
register the stated complaint as an independent FIR or for that matter,
as an independent private complaint for being proceeded further. The
successive orders passed by this Court and directions issued to SIT
were only to look into the aspects that were not part of the cases
investigated by the SIT including the (four) criminal cases concerning
C Gulberg Society - as the same were already registered and proceeded
for trial, in particular, criminal conspiracy hatched in the commission of
those crimes. Inasmuch as, all other aspects already formed part of
enquiry and chargesheet/trial of those cases. Not only that, even the
other eight cases assigned to SIT by this Court covered similar matters
D including allegations of criminal conspiracy. To put it differently, what
remained to be looked into was only about the “allegations of larger
conspiracy at the highest level” which resulted into causing mass violence
across the State during the relevant period.
18. It is well settled that conspiracy can be hatched at different
E levels. Thus, the conspiracy hatched at the middle or lower level in the
concerned cases filed across the State, including the Gulberg Society
incident unfolded on 28.2.2002 involving the gruesome killing of Mr. Ehsan
Jafri (husband of the appellant) and others, covering nine sets of cases
assigned to the SIT by this Court already covered the expanse of criminal
conspiracy concerning those cases. It was urged by the SIT that the
F trial Court in Gulberg trial had disregarded the case of conspiracy even
amongst the accused sent for trial in that case and had opined that there
was no pre-planned intention to commit violence at the Gulberg Society.
If so, it is unfathomable that any larger conspiracy had been hatched at
the higher level, as alleged. In any case, the remit of the SIT in terms of
G directions given by this Court in relation to the complaint filed by appellant
dated 8.6.2006 ought to be limited to the allegations of the larger criminal
conspiracy at the highest level, which allegedly resulted in mass violence
across the State during the relevant period. In that backdrop, we may
have to analyze the case on hand.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 127

19. Be it noted that after this Court, vide order dated 27.4.2009 109, A
directed the SIT to look into the complaint of appellant dated 8.6.2006,
the SIT moved into action and culled out the summary of allegations
exposited in the stated complaint. The SIT identified broadly thirty
allegations in the complaint which read thus: -
“8. The following is the summary of allegations narrated in the B
complaint dated 08.06.2006 and the major evidence in brief in
support of the charges about commission of offences u/s 302 r/w
120-B IPC, Sections 193 r/w 114, 186 & 153-A, 186, 187 IPC,
Section 6 of Commission of Inquiry Act, The Gujarat Police Act
and the Protection of Human Rights Act, 1991:
C
(i) Instruction by Shri Narendra D. Modi, Chief Minister to DGP,
the Chief Secretary and other senior officials to (allow to) give
vent to the Hindu anger on the minority muslims in the wake of
Godhra incident during the Meeting held on 27.02.2002 evening in
Gandhinagar, as testified in Affidavit No. 4 of R.B. Sreekumar.
D
(ii) CM’s decision to bring dead bodies of those killed in Godhra
train fire in Ahmedabad and parade them in Ahmedabad City as
testified by Shri Ashok Narayan in his cross-examination before
the Nanavati Commission.
(iii) Numerous illegal instructions given verbally (by CM) to officials E
as detailed in 3rd affidavit dated 09.04.2005 by R.B. Sreekumar to
the Nanavati Commission.
(iv) Data in the ‘Concerned Citizens Tribunal’ Report by panel of
Judges, Justice Sawant and Justice V.R. Krishna Iyer as in para
10 of the complaint dated 08.06.2006 wherein it was mentioned, F
inter alia, as : What transpired in the days that followed the Godhra
incident began with the Chief Minister of the State announcing on
27.02.2002 through Akashvani Radio that there was an ISI
conspiracy, and deciding against the advice of the Godhra Collector,
Smt. Jayanti Ravi, to take bodies of the burnt Kar sevaks in a
ceremonial procession by road to Ahmedabad. The tragic Godhra G
killings were used and manipulated to justify pre-orchestrated mass
carnage that enjoyed the political sanction of the constitutionally
elected Government Top level meetings were held between the
Chief Minister, some of his Cabinet colleagues and top level
109
supra at Footnote Nos. 4 and 17 H
128 SUPREME COURT REPORTS [2022] 6 S.C.R.

A bureaucrats at which illegal instructions were issued to perform
illegal acts, Proof of this was documented by a Citizens Tribunal
constituted and headed by a former Judge of the Hon’ble Supreme
Court, when a former Minister (Late Shri Haren Pandya) testified
about the details.
B (v) Cabinet Ministers I.K. Jadeja and Ashok Bhatt were positioned
in the DGP office and Ahmedabad City Police Control Room
respectively by CM. DGP Chakravarti was critical of the Minister
I.K. Jadeja remaining in his chamber, as testified by R.B.
Sreekumar in his fourth affidavit.
C (vi) Officers from field executive posts were transferred (by the
CM), in the thick of riots in 2002 despite DGP’s objection so as to
facilitate placement of those who were willing to subvert the system
for political and electoral benefits as narrated in para 67 of the
complaint dated 08.06.2006, wherein instances of punishment, ill
treatment etc. are listed in respect of the following officers: (1)
D Shri Rahul Sharma, IPS, (2) Shri Vivek Shrivastava, IPS, (3) Shri
Himanshu Bhatt, IPS, (4) Shri M.D. Antani, IPS, (5) Shri R.B.
Sreekumar, IPS and (6) Shri Satishchandra Verma, IPS.
(vii) Senior officials were rewarded with undue benefits, even
while their conduct was under the scrutiny of Nanavati
E Commission, as narrated in Para 68 of the complaint dated
08.06.2006, wherein “Rewards” for collaborating with the illegal
plans of CM/BJP during 2002 riots and afterwards are listed in
respect of the following officers: (1) Shri G. Subba Rao, IAS, the
then Chief Secretary, (2) Shri Ashok Narayan, IAS, the then ACS
F (Home), (3) Dr. P. K. Mishra, IAS, the then PS to CM, (4) Shri
A. K. Bhargava, IPS, (5) Shri P. C. Pandey, IPS (6) Shri Kuldeep
Sharma, IPS, (7) Shri M. K. Tandon, IPS, (8) Shri Deepak
Swaroop, IPS, (9) Shri K. Nityanandam, IPS, (9) Shri Rakesh
Asthana, IPS; (10) Shri A.K. Sharma, IPS, (11) Shri Shivanand
Jha, IPS, (12) Shri S. K. Sinha, IPS, (13) Shri D. G. Vanzara, IPS.
G
(viii) No follow up action was taken (by the Gujarat Government/
CM) on the reports sent by R.B. Sreekumar on 24.04.2002,
15.06.2002, 20.08.2002 and 28.08.2002·about anti-minority stance
of the Administration. Copies of these reports are appended in
second Affidavit dated 06.10.2004 of R.B. Sreekumar to the
H Nanavati Commission.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 129

(ix) Indictment by the Hon’ble Supreme Court about injustice done A
to minority community and riot victims in the investigation of riot
cases in respect of (1) Bilkis Bano case and (2) Best Bakery
case, as narrated in paras 13 and 14 of the complaint dated
08.06.2006.
(x) Partisan investigations were conducted betraying prejudice B
against riot victims, as indicated by Rahul Sharma, then SP,
Bhavnagar District during his cross-examination before the
Nanavati Commission, as noted in Para 18 of the complaint dated
08.06.2006.
(xi) CM Shri Narendra Modi did not visit the riot affected areas in C
the initial days, though he visited Godhra Railway Station on
27.02.2002 itself.
(xii) A press statement was made by Shri Narendra Modi that the
reaction against the Muslim community was the operation of
Newton’s law of action. D
(xiii) No direction was given by Shri Narendra Modi to Hindu
organizations against the observance of Bandh on 28.02.2002.
Bandhs had been declared illegal by Kerala High Court.
(xiv) There was undue delay in requisition and deployment of
army, though anti-minority violence had broken out on 27.02.2002 E
afternoon itself in cities of Vadodara, Ahmedabad etc.
(xv) Pro-VHP advocates were appointed as Public Prosecutors
in riot cases as noted in Para 4 under the caption ‘Present Situation’
in the complaint dated 08.06.2006, wherein appointments of
advocates Shri Chetan Shah (as District Government Pleader), F
Shri V.P. Atre (as Special PP in the Gulberg case), Shri Raghuvir
Pandya (as Special PP in the Best Bakery case), Shri Dilip Trivedi
(as Special PP in the Sardarpura case), Shri Rajendra Darji (as
Special PP in the Dipda Darwaja case), Shri Piyush Gandhi (PP
in Panchmahal District), have been questioned.
G
(xvi) Officers at grass-root level were not transferred as per State
Intelligence Bureau’s recommendation till the arrival of Shri K.P.S
Gill as Advisor to CM, as indicated by Sreekumar in his second
affidavit dated 06.10.2004 to the Nanavati Commission.
H
130 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (xvii) Failure to take action against the print media making
communally inciting reports though State Intelligence Bureau and
some field officers had recommended for action, as noted in the
first Affidavit dated 06.07.2002 of R. B. Sreekumar during his
cross-examination before the Nanavati-Shah Commission on
31.08.2004.
B
(xviii) State Home Department gave misleading reports about
normalcy in the State to Central Election commission for ensuring
early Assembly Elections. The assessment of the Home
Department was adjudged as false by the Election Commission in
its order dated 16-08-2002. As per the Register for recording verbal
C instructions from higher formations kept by ADGP (Shri R.B.
Sreekumar), as noted in his third Affidavit, he was directed by the
Home Department officials to give favourable reports about law
and order for facilitating holding of early elections.
(xix) The State Home Secretary Shri G.C. Murmu was presumably
D detailed for tutoring, cajoling and even intimidating officials deposing
before the Nanavati Commission so that they do not tell the truth
and harm the interests of CM and ruling party, as narrated in third
Affidavit of Shri R.B. Sreekumar.
(xx) Shri G.C. Murmu’s exercise was for ensuring that officials
E will not file affidavits relating to the second terms of reference to
the Nanavati Commission about the role of CM and other Ministers
in the riots as narrated in Para 52 of the complaint dated
08.06.2006 wherein gross dereliction of duty has been alleged in
not filing Affidavits relating to second terms of reference to the
F Commission on the part of 16 specifically named officials including
top ranking IAS/IPS officers.
(xxi) No action was initiated against senior police officers by the
Home Department for their grave dereliction of duty in supervision
of investigation of serious offences as noted in fourth Affidavit
G (Para 94) of Shri R.B. Sreekumar.
(xxii) No departmental action was taken against Shri Jadeja, the
then Superintendent of Police, Dahod District for his misconduct
despite recommendation by CBI who investigated the Bilkis Bano
case as per the direction of Hon’ble Supreme Court.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 131

(xxiii) The CD regarding telephone calls by BJP leaders and police A
officers during riots was not probed into by the Investigating
Officers of the Naroda Patia and Gulberg Society cases. The
CD was produced by Rahul Sharma, SP, CBI before the Nanavati
Commission.
(xxiv) Conducive situation was not created for rehabilitation of B
riot victims, though a contrary claim is made by the State
Administration in its report to NHRC. Instead, the riot victims
were pressurized for compromising with the perpetrators of
violence, as a condition precedent for their safe return as
rehabilitation.
C
(xxv) Police inaction facilitated riots as part of conspiracy, as
detailed in paras 13, 14, 61 and 62 of the complaint dated
08.06.2006. In Para 13 of the complaint, some of the ‘glaring
examples of State sponsored events’ are given. In para 61 of the
complaint, it is alleged that over two dozen survivors of the Naroda
Patiya massacre case have confirmed that they made over a D
hundred distress calls to Shri P.C. Pande, then Commissioner of
Police but that his mobile was permanently switched off. There
was a similar callous response from most of the DCPs and Addl.
CPs (of Ahmedabad City) as also by Shri Tuteja, the then
Commissioner of Police, Baroda. In para 60 of the complaint, E
telephone calls made from Gulberg Society to Shri P.C. Pande
and the DGP are alleged but no police action despite presence of
three mobile vans near the spot. It is also alleged in Para 61 of the
complaint that police was aiding mobs who were attacking Muslims
and that on 28th February, of the 40 persons shot dead by police in
Ahmedabad City, 36 were Muslims. In Para 62 of the complaint, F
it is alleged that police acted as mute spectators to acts of
lawlessness, offences, were not investigated properly, real culprits
were not arrested and no timely preventive action was taken etc.
(xxvi) No minutes of the meetings held by CM and senior
bureaucrats were maintained and instructions were mostly G
conveyed through phone which served the twin objective of (i)
field officers carrying out the conspiracy of pogrom against the
minorities and (2) avoidance of the subsequent monitoring of actions
by jurisdictional officers.
H
132 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (xxvii) No action was taken against officers like K. Chakravarthi,
then DGP, P.C. Pandey, then Commissioner of Police, Ahmedabad
City, Ashok Narayan, then Additional Chief Secretary and a large
number of senior functionaries in Government who filed incomplete,
inaccurate, vague and inadequate affidavits to the Nanavati
Commission, as narrated in Paras 54, 55, 56 of the complaint dated
B
08.06.2006.
(xxviii) Slack review of post riot cases as ordered by the Hon’ble
Supreme Court in 2004. This was achieved by entrusting this work
to those senior officers who are willing to act according to political
interests of BJP and CM, as narrated in Para 84 of the complaint
C dated 08.06.2006.
(xxix) Nepotism practiced in postings, transfers; promotions etc.,
as narrated in para 85 of the complaint for facilitating the on-
going subversion of the criminal justice system.

D (xxx) The fact that victims of riots and police firings were
predominantly of the Muslim community, will establish that rioters,
the administration, cohorts of the ruling party (BJP) were moving
in collaboration for achieving the satanic objectives of CM.
Statistics in this regard are given in the second Affidavit dated
06.10.2004 (Para 3/Appendix V) of Sreekumar to the Nanavati
E Commission.”
In addition, SIT took note of the following two allegations: -
“ALLEGATION NO. XXXI:
That a secret meeting was held late in the evening of 27-02-2002
F in Lunawada village of Sabarkantha District and that a telephone
call was made between 3 pm & 6 pm from the house of one
Dr. Yogesh Ramanlal Pandya from Godhra to Dr. Anil Patel (a
member of Gujarat Doctor’s Cell of BJP) intimating him about
the meeting. Further, another call was also made to
Dr. Chandrakant Pandya (from Kalol), Chairman, Police Housing
G
Corporation. Shri Ashok Bhatt, state Health Minister, who was
then sitting in the Godhra Collectorate was also intimated about
the meeting. Shri Prabhatsinh Chauhan, the then Transport Minister,
who hails from Panchmahal was reportedly also called to attend
and one Shri A.P. Pandya was also present in the meeting. It is
H further alleged that the phone calls were made to invite 50 top
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 133

people of BJP/RSS/BD/VHP and the plan was to assemble at A
someone’s house in Lunawada (Sabarkantha District). It is also
alleged that 50 top people met at this undisclosed destination and
detailed plans were made on the use of kerosene, patrol for arson
and other methods of killing, but the State IB did not or could not
track such meeting and preparations for the gruesome violence
B
that was to follow.
ALLEGATION NO. XXXII:
A meeting was held by Shri Kalubhai Hirabhai Maliwad at village
Borwai near Pandawada on 28-02-2002. This meeting earlier
scheduled to be held at the house of one Shri Shankar Master but C
due to large crowd, it was held at Baliyadev Mandir. It is alleged
that around 5000-6000 activists of Bajrang Dal including Shri
Kalubhai Maliwad, Somabhai Rumalbhai of Kaliakuvawala,
Jignesh Pandya, Prakashbhai of Borwai village, Amrutbhai Manilal
Panchal, Anil Modi, Sarpanch, Sanjay Ishwarbhai Panchal, Vijay
Damor, Khema Kalu and Damor Somabhai besides others were D
present in the meeting held to plan the attacks on the minorities in
the surrounding areas. Smt. Teesta Setalvad has stated that this
information was given to her by her sources namely Shri Mehboob
Rasul Chauhan of Lunawada and Shri Nasirbhai Kalubhai Sheikh
of Pandarwada.” E
20. The SIT then analyzed the materials collated during the
investigation allegation-wise, offender-wise, witness-wise and in
reference to the observations of the learned Amicus Curiae – Mr. Raju
Ramachandran, to record its opinion in the final report (consisting of
closely printed/typed 270 pages in its Volume-I, filed as Annexure P-17 F
at pages 236-467 of the Convenience Compilation of respondent No. 2
– SIT) submitted to the concerned Court. The SIT summed up as follows:
-
“…..
To sum up, Shri A.K. Malhotra, Member, SIT has conducted G
an inquiry into the complaint made by Smt. Jakia Nasim as per
the orders of the Hon’ble Supreme Court of India passed on
27.04.2009. In compliance to the said order a report was submitted
by the SIT to the Hon’ble Supreme Court of India on 13.05.2010,
in which further investigation u/s 173(8) Cr.PC was suggested to
H
134 SUPREME COURT REPORTS [2022] 6 S.C.R.

A be conducted in respect of Shri Gordhan Zadafia, Shri M.K.
Tandon, Jt. CP and Shri P.B. Gondia, DCP, Zone-IV, Ahmedabad
City. Further investigation in the matter was conducted by the
undersigned (Shri Himanshu Shukla, DCP; Crime Branch,
Ahmedabad City) under the supervision of Shri Y.C. Modi, Addl.
DG & Member, SIT and a report in the matter was submitted to
B
the Hon’ble Supreme Court on 17.11.2010. Both the aforesaid
reports were given to Shri Raju Ramchandran, Sr. Advocate, who
had been appointed as Amicus Curiae in the matter by the Hon’ble
Supreme Court of lndia. The Amicus Curiae submitted his Interim
Report in the matter to the Hon’ble Supreme Court of India on
C 20.01.2011, vide which he suggested further investigation in respect
of some of the issues.
In compliance to the order passed by the Hon’ble Supreme Court
of India on 15.03.2011, to conduct further investigation into the
matter u/s 173 (8) Cr. PC, Shri Himanshu Shukla, DCP, Crime
D Branch carried out further investigation under the overall
supervision of Chairman, SIT Shri R.K. Raghavan, Shri Y.C. Modi;
Addl. DG & Member, SIT and Shri A.K. Malhotra, Member, SIT
and another report was submitted to the Hon’ble Supreme Court
of India on 25.04.2011. The Hon’ble Supreme Court of India
handed over the said report to the Ld. Amicus Curiae for his
E examination and independent opinion.
The Ld. Amicus Curiae accordingly examined the SIT
reports and also interacted with some of the witnesses
including the police officers and submitted his report to
the Hon’ble Supreme Court of India on 25.07.2011. The
F Hon’ble Supreme Court of India after careful consideration of
the matter passed an order on 12.09.2011, directed the Chairman,
SIT to forward a Final Report along with the entire material
collected by the SIT to the Court which had taken cognisance of
FIR of I CRNo. 67/2002 of Meghaninagar P.S., as required u/s
G 173(2) Cr.PC of the Court.
It may be mentioned here that the Ld. Amicus Curiae
has agreed with the various recommendations made by the
SIT on the different issues inquired into/investigated by
the SIT. However, the Ld. Amicus Curiae is of the view
H that at this prima facie stage offences u/s 153A(1)(a)&(b),
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 135

153B(1)(c), 166 and 505(2) IPC are made out against Shri A
Narendra Modi regarding the statement made by him in
the meeting on 27.02.2002. In this connection, as discussed,
above SIT is of the view that the offences under the
aforesaid sections of law are not made out against Shri
Narendra Modi.
B
In the light of the aforesaid facts, a closure report is being
submitted for favour of perusal and orders.
(Himanshu Shukla)
DCP &I0, SIT
Gandhinagar” C
(emphasis supplied)
Be it noted that even the learned Amicus Curiae had broadly
agreed with the recommendations made by the SIT in the final report,
but had opined that at prima facie stage offences under Sections
153A(1)(a) & (b), 153B(1)(c), 166 and 505(2) of the IPC have been D
made out against the then Chief Minister.
21. This final report dated 8.2.2012 was taken exception to by the
appellant by filing protest petition before the Magistrate on 15.4.2013
raising diverse grounds including adverted to in paragraph 6(c) above.
E
22. In dealing with the protest petition, the Magistrate in the facts
of the present case, could have and was obliged to examine the challenge
only in the context of the scope for investigation of allegations referred
to in the complaint dated 8.6.2006 including the other materials collected
during the investigation by the SIT concerning the larger criminal
conspiracy at the highest level, resulting into mass violence across the F
State. This is reinforced from the observation made by this Court in
order dated 7.2.2013110, wherein it has been clearly mentioned that the
statements recorded in the enquiry undertaken by the SIT pursuant to
the directions of this Court shall only be used in the proceedings relating
to the complaint dated 8.6.2006 and shall not be used for any other G
purpose or in connection with any other case. This clarification also
applied to the criminal case being Crime report No. 67/2002 pertaining
to the incident in Gulberg Society, trial whereof was at an advanced
stage (and soon disposed of on 26.12.2013).
110
see para 5(y) above H
136 SUPREME COURT REPORTS [2022] 6 S.C.R.

A 23. As regards that trial, all information regarding the charge of
criminal conspiracy was collated during the investigation by SIT in terms
of order dated 26.3.2008111 including from persons who wanted to make
statement before the SIT for giving versions of the alleged crimes being
investigated and to be tried in terms of the said order. It has been further
clarified in the order dated 7.2.2013112 by this Court that the present
B
order is confined to the facts and circumstances of the complaint dated
8.6.2006 and shall not be treated as a precedent, “in any other case”.
These observations are clear pointer to the sui generis approach of this
Court in the present case being fully aware that no FIR had been
registered at the instance of appellant on the basis of the complaint dated
C 8.6.2006; nor the trial in connection with CR No. 67/2002 concerning
Gulberg Society had been stayed pending investigation into the stated
complaint. Indisputably, the directions and clarifications given by this
Court from time to time in the present case have not been put in issue
nor any grievance had been set forth from any quarter at any stage.
Resultantly, the ordinary course to be adopted by the Magistrate under
D
the Code in other cases cannot be invoked in the present case. In that
sense, the enquiry by the Magistrate should also have confined itself to
the limited aspect of allegations regarding larger criminal conspiracy at
the highest level, referred to in the complaint dated 8.6.2006, resulting in
causing of mass violence across the State.
E 24. Coming back to the allegations regarding larger conspiracy at
the highest level, it is founded on the alleged utterances made by the
then Chief Minister in an official meeting while addressing the DGP, the
then Chief Secretary and other senior officials of the State to allow to
vent to the Hindu anger on the minority in the wake of Godhra incident.
F This is in reference to the meeting held on 27.2.2002 evening in
Gandhinagar, as testified in the affidavit of Mr. R.B. Sreekumar. To the
same end, the report by a private panel of former Judges of this Court
titled “Concerned Citizens Tribunal” has been relied. This report refers
to the testimony of late Mr. Haren Pandya, former Minister given before
the former Judges of this Court. Additionally, the testimony of Mr. Sanjiv
G Bhatt, who claims to have attended the meeting convened by the then
Chief Minister on 27.2.2002 has been relied.

111
supra at Footnote Nos. 6 and 16
112
H see para 5(y) above
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 137

25. This is the core basis on which the complaint of the appellant A
proceeds to allege larger criminal conspiracy at the highest level. These
allegations have been duly enquired into by the SIT. The SIT considered
the relevant materials while examining allegations (i) and (iv), inter alia,
in its report113, to conclude that the claim of concerned persons is false
and figment of imagination. For that, the SIT had recorded statements
B
of all those officials who were present in the said meeting. They stated
in one voice that Mr. Sanjiv Bhatt was not present in the review meeting
convened under the Chairmanship of the then Chief Minister. The SIT
had also collected relevant documentary evidence to establish the falsity
of the claim of Mr. Sanjiv Bhatt of being present in that meeting.
26. It is, thus, not a case of one version against the other, but of C
false claim set up by Mr. Sanjiv Bhatt of being personally present in the
stated meeting. Therefore, the SIT after thorough investigation has
recorded its opinion that neither Mr. Sanjiv Bhatt nor Mr. Haren Pandya
was present in the stated meeting. Similarly, even Mr. R.B. Sreekumar
had no personal knowledge as he did not attend the said meeting. Besides, D
Mr. R.B. Sreekumar was a disgruntled officer. The relevant extract of
the said final report114 reads thus:-
“…..On his return, he called for a Law & Order meeting at
his residence at about 2300 hrs, which was attended by Smt.
Swarna Kanta Varma, Acting Chief Secretary, Shri Ashok E
Narayan, ACS (Home), Shri K. Chakravarthi, DGP, Shri P.C.
Pande, CP, Ahmedabad City, Shri K. Nityanandam,
Secretary, Home Department, Dr. P.K. Mishra, Principal
Secretary to CM, Shri Anil Mukim, Secretary to CM and
Shri Prakash S. Shah, the then Addl. Secretary (L & O)
were in the said meeting. However, Shri G.C. Raiger, Addl. F
DG (Int.) was not present in the said meeting. Shri Sanjiv Bhatt,
the then Deputy Commissioner of lntelligence (Security)
has claimed to have attended the said meeting at the
instance of DGP. No Cabinet Minister was present in the
said meeting. Shri Gordhan Zadafia, MOS (Home) also did G
not attend the meeting, as he had stayed back at Godhra.

113
pages 245 to 260 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
114
pages 246-247 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2 H
138 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Shri Sanjiv Bhatt, the then Deputy Commissioner of
Intelligence (Security) has claimed after more than seven
years, to have attended the said meeting at the instance of
the then DGP……”
(emphasis supplied)
B The SIT recorded the statements of the concerned officials
[Ms. Swarnakanta Verma, the then Chief Secretary, Mr. Ashok Narayan,
the then ACS (Home), Mr. P.K. Mishra, the then Principal Secretary to
Chief Minister, Mr. Chakravarthi, the then DGP, Mr. P.C. Pande, the
then Commissioner of Police, Ahmedabad City, Mr. Anil Mukim, the
then Additional PS to Chief Minister, Mr. K. Nityanandam, the then
C Secretary (Home), Mr. Prakash S. Shah, the then Additional Secretary
(Law and Order), Mr. R.B. Sreekumar, the then Additional DGP] and
after analyzing the same, opined that all the officials who were present
in the stated meeting had said in one voice that Mr. Sanjiv Bhatt, the
then DCI (Security) was not present in that meeting.
D 27. The SIT then analyzed the claim of Mr. Sanjiv Bhatt that he
was present in the meeting by referring to official records including the
call records of his mobile phone No. 9825049398 to conclude that he
had set up a false plea of being present in the stated meeting. The SIT
has adverted to the materials collected during investigation clearly
E reflecting on the conduct of Mr. Sanjiv Bhatt including his false claim of
being present in the stated meeting. The final report has analyzed these
aspects in detail115.
28. The final report then proceeds to advert to the interview given
by Mr. R.B. Sreekumar to a news channel on 22.4.2011 and the details
of the call records of Mr. Sanjiv Bhatt for the relevant period and noted
F thus116: -
“…..Shri R. B. Sreekumar formerly ADGP
Intelligence, in his interview to the Star Hindi News Channel
at 12.35 hrs on 22.04.2011 has stated that Shri Sanjiv Bhatt,
DCI (Security) had never informed him about having
G attended a meeting at CM’s residence on 27.02.2002. He
has further stated that at that time of filing an affidavit before
115
pages 249-254 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
116
pages 254-255 of original copy of the final report forming part of Convenience
H Compilation of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 139

Nanavati Shah Inquiry Commission, he had asked all the A
officers of State IB to provide him with the relevant
information and documents in respect of Godhra riots but
Shri Sanjiv Bhatt did not give him any information about
the said meeting. According to Shri Sreekumar, Shri Sanjiv Bhatt
was handling security portfolio and communal portfolio was being
B
looked after by another officer. Shri Sreekumar has also stated in
the interview that it was a normal procedure that if a junior officer
had attended a meeting on behalf of senior, he was required to
submit a report to his superior and that Shri G.C. Raiger, the then
ADGP (Int.) should be asked about it. As already stated above,
Shri Raiger has denied having received any information/ C
report from Shri Sanjiv Bhatt in this regard.
The call detail records of the Govt. mobile phone no.
9825049398 allotted to Shri Sanjiv Bhatt show that on
27-02-2002, Shri Sanjiv Bhatt remained at Ahmedabad till
about 1120 hrs and returned to Ahmedabad at 1925 hrs. D
He attended to various calls till 2040 hrs and thereafter,
there is no record of any calls made or received by him.
Further, on 28-02-2002, he remained at Ahmedabad till 1057
hrs and then returned to Ahmedabad 2056 hrs. The claim
of Shri Sanjiv Bhatt that he had attended a meeting at CM’s
residence on 28-02-2002, at 1030 hrs is therefore proved E
to be false and incorrect. CM’s residence is at Gandhinagar,
more than 25 KMs from Ahmedabad, and normally takes 30 to 45
minutes to reach there. His further claim that he had seen Late
Ashok Bhatt and Shri I.K. Jadeja, the then Ministers in the DGPs
office at about 1100 hrs on 28-02-2002, is also belied from the call F
detail records in as much as the location of the mobile phone of
Shri Sanjiv Bhatt was at Prerna Tower, Vastrapur-1, Ahmedabad,
which happened to be at a distance of 1.5 Kms. approximately
from his residence and Shri Bhatt could not have reached Police
Bhavan, Gandhingar before 1130 hrs by any stretch of imagination.
Further, both Shri K. Chakravarthi, the then DGP and Shri G.C. G
Raiger, the then Addl. DG (Int.) do not recollect having attended
any meeting at CM’s residence at about 1030 hrs on 28-02-2002.
Shri Ashok Narayan, the then ACS (Home) has stated that
a meeting was held by the Chief Minister in the morning of 28-02-
2002, which was attended by acting Chief Secretary, DGP Addl. H
140 SUPREME COURT REPORTS [2022] 6 S.C.R.

A DG (Int.) and the matter relating to the calling of Army was also
discussed, but no decision was taken and it was decided to watch
the situation. He has categorically denied that Late Ashok Bhatt
and Shri I.K. Jadeja, Ministers had attended the said meeting.
The claim of Shri Sanjiv Bhatt that he had attended the said
meeting at 1030 hrs at CM’s residence is proved to be
B
false from the location of his mobile phone, which was at
Prerna Tower, Vastrapur-I, Ahmedabad City at 10:57:43 hrs.
Moreover, his contention that the aforesaid two Ministers
were present in the said meeting is proved to be false from
the statement of Shri Ashok Narayan, the then ACS (Home),
C categorically stated that they were not present in the said
meeting. His subsequent conduct of getting his statement
corroborated by way of introduction of two police personnel
would also go to show that he is trying to introduce himself
into the meeting. As regards the alleged utterance made by the
Chief Minister in the meeting called on 27-02-2002 night at his
D
residence, it may be mentioned here that Shri R.B. Sreekumar,
the then Addl. DG (Int.) had claimed that Shri K. Chakravarthi,
the then DGP had informed him on 28-02-2002 that the Chief
Minister had allegedly said in the meeting that ‘’KOMI
HULLADO MA TAME POLICE BARABARI KAROCHO.
E TAME BE HINDU NE PAKDO TO TAME BE MUSALMANO
NE PAN PAKDO CHO. HA VE ME NAHI CHALE.
HINDUONO GUSSO UTTARWA DO.” (In communal riots
police takes action against Hindus and Muslims on one to one
basis. This will not do now-allow Hindus to give vent to their
anger). Shri Chakravarthi has denied that he held any such
F
talks with Shri R.B. Sreekumar. Even otherwise, the
version of Shri R.B. Sreekumar becomes hearsay and
inadmissible in view of denial of Shri K. Chakravarti……”
(emphasis supplied)
117
29. Again, at pages 255-257 , the SIT has analyzed the materials
G collected during investigation indicative of the falsity of claim set up by
Mr. Sanjiv Bhatt and noted thus: -

117
pages 255-257 of original copy of the final report forming part of Convenience
H Compilation of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 141

“….. However, on the other hand Shri Sanjiv Bhatt, who insists A
that he was in the said meeting, has stated “that the Chief Minister
had said that for too long the Gujarat Police had been following
the principle of balancing the actions against the Hindus and
Muslims while dealing with the communal riots in Gujarat. This
time the situation warranted that the Muslims be taught with the
B
communal riots in Gujarat. This time the situation warranted that
the Muslims be taught a lesson to ensure that such incidents do
not recur ever again. The Chief Minister Shri Narendra Modi
expressed the view that the emotions were running very high
amongst the Hindus and it was imperative that they be allowed to
vent out their anger.” Assuming for the time being that the Chief C
Minister did make some utterances, there is a material difference
between the two versions in as much as Shri Sanjiv Bhatt has
tried to improve his version by way of addition that this time the
situation warranted, that the Muslims be taught a lesson to ensure
that such incidents do not recur every again. Since the version
D
of Shri R.B. Sreekumar is on hearsay basis and the
testimony of Shri Sanjiv Bhat does not have any
corroboration, no reliance can be placed on either of them.
Shri Sanjiv Bhatt has not been able to give any
satisfactory explanation that when he was in possession of
plethora of information and was an eyewitnesses to some E
of the important events, then why did he not file an affidavit
before Nanavati Commission and also did not appear as
witness in response to the Govt. circular before any legal
authority. He does not explain as to why he did not respond
to a public notice issued by SIT on 11-04-2008. His silence F
for a period of more than nine years without any proper
explanation appears to be callous and gives an impression
that he is trying to manipulate the things to his personal
advantage to settle his service matters.
During the course of further investigation a complaint was G
received from Shri Dharmesh P. Shukla, an accused in CR No.
67/2002 of Meghaninagar P.S. (Gulberg Society case), who is
facing trial, in which he contended that there was no justification
to record the statement of Shri Sanjiv Bhatt on account of the
following reasons:-
H
142 SUPREME COURT REPORTS [2022] 6 S.C.R.

A i. Shri Sanjiv Bhatt, IPS is known to be a police officer with a
dubious character facing several criminal cases of serious
nature and wherever he wants a favour from the Govt. he
creates a situation whereby the Govt. is compelled to help him.
ii. Shri Sanjiv Bhatt, who had not even whispered about any
B such meeting in the past contemporaneously, surprisingly came
out with a new theory that he was a part of the meeting.
iii. That a sudden taking up a position by Shri Sanjiv Bhatt after
nine years of silence and his insistence to record his statement
only after an offence is registered, is at the behest of some
C vested interest.
iv. It is a matter known to almost everyone in Gujarat that Shri
Sanjiv Bhat is known to be an officer pressuring everyone to
get illegal favour.
Since the allegations leveled by the complaint were serious,
D a communication was sent to the Govt. to make available the
details of all complaints/pending inquiries/prosecutions/
departmental proceedings etc. against Shri Sanjiv Bhat. A detailed
reply has been received from the Govt. of Gujarat, which
shows that Shri Sanjiv Bhatt has faced a number of
E departmental inquiries and he was granted three
promotions of Junior Administrative Grade, Selection
Grade and DIG Grade on one day i.e. 21-09-2007, after
dropping of three departmental inquiries pending against
him vide orders dated 06-08-2005, 03-09-2005 &
24-07-2006. Shri Sanjiv Bhat, who is eligible for the IGP
F grade has not been promoted because of the departmental
inquiries and criminal cases pending against him. A
chargesheet served upon him on 29-12-2010, for
irregularities in police recruitment under his Chairmanship
as SP, Banaskantha is still pending.
G While handling a law and order situation during his
posting as ASP Jamnagar in the year 1990, Shri Sanjiv Bhatt
committed atrocities on peaceful and innocent villagers
belonging to a particular community at a place called Jam
Jodhpur. In the beatings by police one person was killed.
The victims included a pregnant woman, two assistant
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 143

engineers of irrigation department and one circle officer of A
Revenue Department. Shri Bhatt applied provisions of
draconian law TADA against the innocent persons and
arrested 140 individuals under this Act. Due to public
pressure, the Government got an inquiry conducted by a
retired Judicial Officer into the incident and Shri Bhatt was
B
found guilty of (a) misuse of TADA (b) police atrocities and
(c) unnecessary imposition of curfew for 70 hrs leading to
hardship and harassment to the people.
The Criminal case of death of a person due to police
atrocities in the incident was investigated by State CID
(Crime) against Shri Sanjiv Bhatt and others. After C
completion of investigation, the IO sought prosecution sanction
from the Government u/s 197 Cr.PC, which was declined and
therefore, a closure report was filed in the competent court.
However, the Court rejected the closure report on
20-12-1995 and took the cognizance. The State Government D
filed a Criminal Revision Application in the Sessions Court,
which was rejected.
The case u/s 302, 323, 506(1), 114 of IPC has now
been committed to Sessions Court, Jamnagar and is
presently with the Fast Track Court Khambhalia for framing E
of charges against Shri Sanjiv Bhatt and others.
Significantly, Gujarat High Court awarded a compensation
of Rs.1,50,000/- to the victim who had died due to police atrocities
in the above case.
Another criminal complaint was filed against Shri F
Sanjiv Bhatt, while he was posted at SP, Banaskantha
District in 1996 by Shri Sumersingh Rajpurohit, an Advocate
practicing at Pali, Rajasthan and a criminal case was
registered against Shri Sanjiv Bhatt & others vide FIR
No.403/96 dtd. 18-11-1996 u/s 120B, 195, 196, 342, 347, G
357, 365, 388, 458, 482 IPC and Sec. 58(1) & 58(2) of NDPS
Act. On completion of the investigation, the chargesheet
was filed against Shri Sanjiv Bhatt & others u/s 114, 120B,
323, 342, 348, 357, 365, 368, 388, 452, 201 & 482 IPC and
Sec. 9, 17, 18, 29, 58(1) & 58(2) r/w Sec. 37 of NDPS Act in
H
144 SUPREME COURT REPORTS [2022] 6 S.C.R.

A the court of Spl. Judge, NDPS Act, Jodhpur, Rajasthan. The
allegations in brief are that the complainant Advocate was
occupying a property as a tenant in Pali (Rajasthan), which was
owned by a lady, who happened to be a sister of Shri R.R. Jain, a
sitting Judge of Gujarat High Court. As per the said criminal
complaint Shri Sanjiv Bhatt and his subordinate police
B
officers allegedly planted 1 1/2 kg of Narcotic drug in one
room in a hotel at Palanpur, Gujarat, which was shown as
occupied by the said complainant, though he was a Pali
(Rajasthan) at that time. The said Advocate was abducted
at midnight on the instructions of Shri Sanjiv Bhatt by his
C subordinate police officers of Gujarat police, who went from
Palanpur, Gujarat to Pali (Rajasthan) to abduct him. The
said Advocate was brought to Palanpur, Gujarat and
pressurized by Shri Sanjiv Bhatt and his subordinate police
officers to vacate the said property by showing him arrested
under NDPS offence. The said Advocate, while in the
D
custody of Gujarat Police and due to police torture, vacated
the property and physical possession of the property was
handed over to the sister of Shri R.R. Jain, Judge of Gujarat
High Court. Shri Sanjiv Bhatt and his subordinate police officers,
thereafter released Shri Sumersingh Rajpurohit on 08-05-1996,
E by filing a report u/s 169 Cr.PC, in which it was mentioned that
Shri Sumersingh could not be identified in the Test Identification
Parade. Quashing Petitions were filed in this matter by the accused
persons in Rajasthan and Gujarat High Court, but the same had
been dismissed. The matter is now pending before the Hon’ble
Supreme Court of India.
F
Significantly, Gujarat Vigilance Commission recommended
twice on 15-07-2002 and 19-10-2006 that Shri Sanjiv Bhatt should
be placed under suspension for his professional misconducts, but
the Govt. of Gujarat did not do so.
G In the meantime, on the complaint of Shri Sidheshwar Puri,
Secretary, Bar Association, Pali (Rajasthan), National Human
Rights Commission taking a very serious view of this false case
under NDPS Act vide its order dated 15-09-2010 asked Govt. of
Gujarat to pay a sum of Rs. one lakh as monetary relief to Shri
Sumersingh, Advocate, Pali.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 145

In view of the aforesaid position, it can be inferred A
that Shri Sanjiv Bhatt is facing a lot of problems in service
matters and has got an axe to grind against the Govt. of
Gujarat and, therefore, his evidence is ill motivated and
cannot be relied upon……”
(emphasis supplied) B
Additionally, it may be apposite to reckon the adverse comments
noted by this Court118 against Mr. Sanjiv Rajendra Bhatt about his general
conduct while deciding writ petition filed by him for transfer of
investigation of a major crime registered against him at Ahmedabad in
2011 being I-CR No. 149/2011. C
30. While dealing with the testimony of late Mr. Haren Pandya
before the Concerned Citizens Tribunal and of Mr. R.B. Sreekumar, the
SIT opined thus119: -
“….. As regards the deposition of Late Haren Pandya before
the Concerned Citizens Tribunal, further investigation has D
established that the meeting convened at CM’s residence, was an
essentially law and order review meeting that was held on
27-02-2002 and that none of the Cabinet Minister attended the
same. Late Haren Pandya was not even a Cabinet Minister
at that time and was holding the portfolio of Minister of E
State for Revenue. Shri Gordhan Zadafia also did not attend
this meeting, as he had stayed back at Godhra. In view of
the version of all the senior officials of the Home and Police
Department the alleged testimony of Late Haren Pandya
before the Tribunal cannot inspire confidence.
F
As regards the entries made by Shri R.B. Sreekumar at
page 21 on l2-06-2002, in a register unauthorisedly maintained by
him that the call details of the mobile phone of Late Haren Pandya
were handed over to Shri P.K. Mishra, the then Principal Secretary
to CM through Shri O.P. Mathur in his office, the same appears
to be doubtful as Shri Mathur has denied to have handed over any G
such call details to Dr. P.K. Mishra in his office and that Principal
118
supra at Footnote No. 89 – Sanjiv Rajendra Bhatt vs. Union of India & Ors. (2016)
1 SCC 1 (paras 49 to 55)
119
pages 259-260 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2 H
146 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Secretary to CM never visited the office of the State IB, as stated
in the said entry made in the register. Moreover, Shri S.M. Pathak,
the then Dy. SP, State IB has confirmed to have conducted secret
inquiry about one of the Ministers who had met a Forum of which
Justice Krishna Iyer, retired Judge of Supreme Court and some
others were the member, who had come to Ahmedabad to enquire
B
into the riots in the State. Shri Pathak has also confirmed to
have conducted secret inquiries, which revealed that Late
Haren Pandya had met and deposed before them and that
this fact was reported to Shri R.B. Sreekumar orally.
However, Shri Pathak has stated that he does not recollect,
C as to whether he was asked to collect the mobile phone
details of Late Haren Pandya or not, which again creates a
doubt about the entry made by Shri R.B. Sreekumar in his
register. Shri P.K. Mishra, the then Principal Secretary to
CM has stated that he does not recollect, as to whether he
asked Shri R.B. Sreekumar to collect the mobile call
D
records of Late Haren Pandya and that, no phone call details
were made available to him by either Shri Sreekumar or
Shri O.P. Mathur. The said call details are not available
now. No disclosure was made by Shri R.B. Sreekumar about
the said register in his deposition before the Commission
E on 31-08-2004 or in any of the two affidavits filed by him on
15-07-2002 & 06-10-2004. It is rather surprising that this
register saw the light of the day for the first time in the
year 2005, when Shri R.B. Sreekumar filed a copy of the
same along with his third affidavit filed before the Nanavati-
Shah Commission of Inquiry on 09-04-2005. It may be
F
mentioned here that this affidavit was filed by Shri R.B.
Sreekumar after his supersession in promotion in February,
2005. In view of the fact that the register maintained by
Shri R.B. Sreekumar cannot be considered to be an
authenticated document, therefore, the entries made by him
G in his said register cannot be considered to be reliable.
Further investigation revealed that Govt. mobile no.
9825039852 was allotted to Late Haren Pandya. The call detail
records of the said mobile phone for 27-02-2002 have been
sorted out and the same show that Late Haren Pandya
H remained at Ahmedabad City till 10:46:55 on 27-02-2002.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 147

His location at Ahmedabad City again comes at 16:24:24 hrs. and A
thereafter he remained at Ahmedabad City till 22:52:07 hrs on 27-
02-2002 and therefore, this would conclusively establish that
Late Haren Pandya did not attend the law & order review
meeting that took place at CM’s residence at Gandhinagar
on 27-02-2002 at about 2300 hrs.
B
In view of the aforesaid position, it appears that Late
Haren Pandya had misled the Hon’ble Members of
Concerned Citizen Forum namely Mr. Justice (Retd.) P.B.
Sawant and Mr. Justice (Retd.) Hosbet Suresh that he was
present in the meeting called by the Chief Minister at his
residence on the night of 27-02-2002 with a view to increase C
his credibility. It has been established beyond doubt that
Late Haren Pandya could not have been present in the said
meeting and that the so called evidence given by him was
only on hearsay basis. Since the statement made by Late
Haren Pandya is based on hearsay basis, it deserves to be D
discarded as it is not admissible under any provisions of
law.
Shri Narendra Modi has denied during SIT examination
having stated in the said meeting that in communal riots police
takes action against Hindus and Muslims on one to one basis and E
this will not do now, but allow Hindus to give vent to their anger.
On the contrary, he claimed to have given categorical and clear
cut instructions to maintain peace and communal harmony at any
cost. He has further stated during examination by SIT that a similar
appeal had earlier been made to the people at Godhra through
media. F

It has, therefore, been established that a meeting did
take place at CM’s residence at about 2230 hrs. on
27-02-2002, which was attended to by Smt. Swarna Kanta
Verma, the then Chief Secretary (Shri G. Subha Rao, the
then Acting Chief Secretary had gone abroad on G
22-02-2002), Shri Ashok Narayan, the then ACS (Home),
Shri K. Chakravarthi, the then DGP, Shri P.C. Pande, the
then CP, Ahmedabad City, Shri K. Nityanandam, the then
Secretary, Home Department, Dr. P. K. Mishra, the then
Principal Secretary to CM, Shri Anil Mukim, the then H
148 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Secretary to CM and Shri Prakash Shah, Addl. Secretary
(L&O). It has further been established that Shri G.C. Raiger,
the then Addl. DG (Int.) was on leave and did not attend
the said meeting. It has also been established that Shri A.K.
Sharma, the then Secretary to CM was on earned leave
between 19-02-2002 to 05-03-2002 in connection with his
B
sister’s marriage and was not present in the said meeting.
None of the senior officers, who had attended the said
meeting, have confirmed the alleged utterances made by
Shri Narendra Modi, Chief Minister. The statement made
by Shri R. B. Sreekumar is hearsay, which has not been
C confirmed by Shri. K. Chakravarthi. Shri R. B. Sreekumar
has no personal knowledge as he did not attend the said
meeting. The participation of Shri Sanjiv Bhatt has not been
confirmed by any of the participants of the said meeting or
any other source. The very fact that he broke his silence
after period of nine years makes his deposition suspicious
D
and motivated and therefore, cannot be relied upon. As
regards the deposition of Late Haren Pandya before the
Concerned Citizens Tribunal, enquiries have established
that the meeting convened at CM’s residence, was an
essentially law and order situation review meeting that was
E held on 27-02-2002 and that none of the Cabinet Ministers
attended the same. Late Haren Pandya was not even a
Cabinet Minister at that time. Shri Gordhan Zadafia also
did not attend this meeting, as he had stayed back at Godhra.
In view of the version of all the senior officials of the Home
and Police Department the testimony of Late Haren Pandya
F
before the Tribunal becomes unreliable. Moreover, the call
records of the mobile phone of Shri Pandya show that he
was at Ahmedabad till 22:52:07 hrs on 27.02.2002, and
therefore, he could not have participated in the said meeting
at CM’s residence at Gandhinagar. No minutes of the
G 27-02-2002 meeting were prepared.
In the light of the aforesaid discussions, it can be
concluded that a Law & Order review meeting was in fact
held by Shri Narendra Modi, Chief Minister at his residence
late in the evening of 27-02-2002. However, the allegation
H that the Chief Minister instructed the Chief Secretary, DGP
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 149

and other senior officials to allow the Hindu community to A
give vent to their anger on the minority Muslims in the
wake of Godhra incident is not established…...”
(emphasis supplied)
Thus, the SIT could not have reckoned the version of Mr. Haren
Pandya, who was not present in the meeting when the alleged utterances B
came to be made by the then Chief Minister. Such a claim made by
Mr. Haren Pandya is found to be false.
31. As in the case of allegations (i) and (iv), the SIT then proceeded
to exhaustively deal with the materials collected during the investigation
allegation-wise including the two allegations [Nos. (xxxi) and (xxxii)] C
culled out by the SIT. The final report has then dealt with the materials
offender-wise120. While dealing with the allegations against the then Chief
Minister concerning the illegal instructions given during the meeting on
27.2.2002 it has been found thus121: -
“….. D
Illegal Instructions at the 27.02.2002 meeting:
As regards the meeting held on the night of 27.02.2002, in
which allegedly illegal instructions were given by Chief Minister
to the administrative and police officials. It has come to light that
E
an emergency law & order review meeting to take stock of the
situation was called by Chief Minister at his residence at about
2230 hrs. after his visit to Godhra. It has come in evidence
that the meeting lasted for half an hour or so and was
attended by Smt. Swarna Kanta Varma, the then acting Chief
Secretary, Shri Ashok Narayan, the then ACS (Home) Shri F
K. Chakravarthi, the then DGP, Shri P.C. Pande; the then
CP, Ahmedabad City, Shri K. Nityanandam, the then
Secretary, Home Department, Dr. P.K. Mishra, the then
Principal Secretary to CM, Shri Prakash Shah, the then
Addl. Secretary, Law & Order and Shri Anil Mukim,
G
Secretary to CM one of the Cabinet Ministers of Shri G.C.
Raiger, the then Addl. DG (Int.) was present. Since the
120
pages 337-397 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
121
pages 338-339 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2 H
150 SUPREME COURT REPORTS [2022] 6 S.C.R.

A presence of Shri Sanjiv Bhatt the then DCI (Security) in
the meeting on 27.02.2002, is not established, his statement
cannot be relied upon. Shri Narendra Modi has also denied
the presence of Shri Sanjiv Bhatt in the said high level
meeting. His presence has been denied by others who were
definitely present. Shri R.B. Sreekumar has claimed that
B
Shri K. Chakravarthi had spoken to him on 28.02.2002,
about the said meeting and had claimed that CM uttered
these words. However, Shri Chakravarthi, the then DGP,
has categorically denied any such conversation with Shri
R.B. Sreekumar and as such, it becomes hearsay evidence,
C which cannot be considered as evidence for any action. Shri
R.B.Sreekumar, in his representation dated 03.08.2009,
had mentioned the names of a different officer, who according
to him, had attended this meeting significantly, name of Shri
Sanjiv Bhatt had not been indicated by him. This goes to
support that Shri Sanjiv Bhatt was not present in the
D
meeting. As regards the deposition of Late Haren Pandya,
formerly MoS, Revenue before the Concerned Citizens
Tribunal, in which he had claimed to have attended the
meeting called by Chief Minister on the night of 27.02.2002,
all the participants have denied the presence of any of the
E Cabinet Ministers/MoS at the said meeting. Late Haren
Pandya was only a Minister of State for Revenue at that
time. Shri Narendra Modi has stated that it was essentially
a Law & Order situation review meeting and none of his
cabinet colleagues attended it. Besides this, there is
documentary evidence in the form of call detail records of Late
F
Haren Pandya, which conclusively prove that he was present at
Ahmedabad till 22:52:07 hrs. on 27.02.2002 and as such he could
not have been present in the meeting convened by chief Minister
round 2230 hrs. or so. In view of this the testimony of late
Haren Pandya before the Tribunal becomes highly
G unreliable. Also relevant here is the strained relationship between
him and Shri Narendra Modi, a fact revealed by late Pandya’s
father late Vithhalbhai Pandya.
Shri Sanjiv Bhatt, the then DCI (Security), has claimed
to have attended the meeting, which is not established.
H Further, None of the senior administrative or police officers
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 151

has stated that the CM uttered the following words: “that A
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.” Shri Sanjiv Bhatt, the then DCI
(Security), had initially claimed off the record during his
examination. On 25/26-11-2009, that the CM had uttered these
B
words at the said meeting. This fact was duly incorporated by
Shri A. K. Malhotra, Member, SIT in his Inquiry Report dated
12.05.2010 submitted to the Hon’ble Supreme Court of India.
However, during his further examination in CR No. 67/02
of Meghaninagar P. S. on 21 & 22-03-2011, he improved
his version and added that “This time the situation C
warranted that the Muslims be taught a lesson to ensure
that such incidents do not recur ever again”. It was for the
first time after a period of seven years and nine months
that Shri Sanjiv Bhatt claimed to have attended the crucial
meeting convened by the Chief Minister on 27.02.2002.
D
Shri Sanjiv Bhatt has explained that the then DGP Shri K.
Chakravarthi had instructed him to attend the meeting with IB’s
assessment of the situation. Shri K. Chakravarthi categorically
denied to have given any such instructions and has further
stated that Shri Sanjiv Bhatt was not present at the said
meeting. Seven other officers who attended the meeting E
have also categorically stated that Shri Sanjiv Bhatt was
not present in the said meeting. However, Smt. Swarnakanta
Varma stated that she was unable to recollect whether Shri Sanjiv
Bhatt was present or not. Besides that Shri Sanjiv Bhatt has pleaded
ignorance about the fact as to whether Chief Ministers alleged
F
instructions were passed on by the senior offices to the
subordinates and also as to whether the same were complied with
or not. Shri Sanjiv Bhatt is a tainted witness and there fore,
cannot be relied upon keeping in view his back ground in
the police department as he was involved in criminal cases
of serious nature and departmental inquiries are also in G
against him. It may be added here that even before this
meeting, when Chief Minister visited Godhra on 27.02.2002
evening, he addressed the media at the Collectorate and
asserted that the culprits would not be spared and the
victims would be paid of Rs.2 lakh each. The CM also
H
152 SUPREME COURT REPORTS [2022] 6 S.C.R.

A appealed to the public through media to maintain peace.
Further more, on 28.02.2002, that is within less than 12
hours of the alleged meeting that took place on the night of
27.02.2002, the CM has stated on the floor of the Assembly,
where the Opposition was also present, that “the State Govt.
has taken this heinous, inhuman and organized violent act
B
very seriously and is committed to give exemplary
punishment to the culprits so that such incident never recur
anywhere. The Chief Minister repeated almost the similar
facts in his press conference held on 28.02.2002 afternoon
at Circuit House, Annexe, Ahmedabad. It would not be out
C of place to mention here that in his appeal made to the public
through Door-darshan on 28.02.2002, chief Minister
reiterated that Gujarat will never tolerate any such incident
and that guilty will be punished for their heinous crime. He
also said that the culprits would be awarded such exemplary
punishment so that no one would dare to involve himself in
D
such an incident. This would go to show that at-least on
five occasions, which are fully documented during
27.02.2002 & 28.02.2002 Chief Minister addressed Media,
Assembly and General Public and every where the genesis
and intention was one and the same, i.e. to punish the
E culprits responsible for the Godhra incident in an exemplary
manner, so that such incidents, did not recur ever again. In
the light of aforesaid discussion, the interpretations made
on alleged illegal instructions given by the Chief Minister
by Shri R.B. Sreekumar and Shri Sanjiv Bhatt, appear to be
without any basis. Further, even if such allegations are believed
F
for the sake of argument, mere statement of alleged words in the
four walls of a room does not constitute any offence……”
(emphasis supplied)
Again, while dealing with the allegations levelled by Mr. R.B.
G Sreekumar regarding illegal verbal instructions issued by the then Chief
Minister, the analysis of the SIT read thus122: -

122
pages 341-342 of original copy of the final report forming part of Convenience
H Compilation of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 153

“….. A
Illegal Verbal Instructions:
As regards the allegation leveled by Sreekumar, that
numerous illegal verbal instructions were given by CM and that
he had maintained a register in this regard, Shri O.P. Mathur, the
then IGP (Admn.), has stated that the register was totally blank B
on 18.04.2002, when he had certified the number of pages in the
same and that Shri Sreekumar had not disclosed the purpose of
maintaining such a register. According to Shri Mathur, the
register did not contain the “secret” stamp and also did
not have any title as well as the circular stamp of the office C
of the Addl. DG, CID (Int.). According to Shri Mathur, Shri
Sreekumar had recorded the first entry as on 16.04.2002,
the second and third entries on 17.04.2002, and the fourth
entry on 18.04.2002, which goes to show that Shri
Sreekumar had not only antedated these entries, but also
affixed the stamps subsequently. Shri Q.P. Mathur has D
challenged another entry recorded by Shri Sreekumar that call
details of the mobile phone of Late Haren Pandya were handed
over to Shri P.K. Mishra, the then secretary to CM through him
and denied to have handed over any such call details to Dr. P.K.
Mishra in his office. During enquiries, other senior officers, E
namely, Shri P.K. Mishra, Shri G. Subba Rao, the then Chief
Secretary, Shri Ashok Narayan, the then ACS (Home) and
Shri K. Chkriavarthi the then DGP have challenged the
contents of the said register on the ground that the same
had been unauthorisedly maintained by Shri Sreekumar,
which he was not officially required to maintain. Moreover, F
neither had he taken the permission of the Home
Department to maintain such a register nor the Same was
put up by him to any of the senior officers for perusal. It is,
therefore reasonable to say that Shri Sreekumar made the
entries afterwards at his own sweet will with some ulterior G
motive. According to them, this register saw light of the
day for the first time, when Shri Sreekumar was denied
promotion. Shri Narendra Modi, chief Minister disclaimed
knowledge about such a personal diary/register maintained
by Shri Sreekumar and stated that he came to know about
H
154 SUPREME COURT REPORTS [2022] 6 S.C.R.

A it from the media reports after a long time. According to
Shri Modi this diary was not a Govt. record and as such he
did not want to comment upon the authenticity or otherwise
of the same. All the aforesaid facts and the conduct create
serious doubts about the genuineness of the entries made
by Shri Sreekumar in the said register and, therefore it
B
cannot be relied upon. The allegation that illegal verbal
instructions were issued by Shri Narendra Modi is therefore, not
established……”
(emphasis supplied)
C The SIT, after analyzing the entire materials, noticed that the
allegations in the complaint filed by the appellant, dated 8.6.2006 are
mostly based on the contents of the nine affidavits filed by Mr. R.B.
Sreekumar before the Nanavati-Shah Commission. Those contents were
not on the basis of his personal knowledge/information. He claims to
have acquired information after he was posted at Additional Director
D General (Intelligence) in April, 2002. Notably, he had not made any
adverse comment against the Government in his initial two affidavits,
but started doing so from his third affidavit dated 9.4.2005, presumably,
after being superseded by his junior K.R. Kaushik in February, 2005
owing to a pending criminal case against him initiated by the JMFC,
E Bhuj. The allegations made by him have been duly enquired into by the
SIT and found to be false or not based on his personal knowledge nor
could be duly corroborated despite best efforts of the SIT.
32. Further analysis regarding the allegation of intimidation of
Mr. R.B. Sreekumar, Additional DGP, can be noted as follows123: -
F “…..
Intimidation of Shri Sreekumar, Addl. DGP
As regards the allegation made by Shri R. B. Sreekumar
that he was tried to influence to depose in favour of the Govt.
before Nanavati-Shah Commission of lnquiry through Shri Dinesh
G
Kapadia, Under Secretary, Shri Narendra Modi has termed the
allegation as false and without any basis Shri Sreekumar, Retd.
DGP while the letter as ADGP (Int) through Shri S.M. Pathak,

123
pages 349-350 of original copy of the final report forming part of Convenience
H Compilation of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 155

the then DY. S.P. Gandhinagar. He has further stated that they A
used to exchange some sankrit verses of mutual interest and used
to visit each other in their office. According to Shri Kapadia, during
one of these meeting on 2l.8.2004, in the chamber of Shri
Sreekumar, he took out a copy of his affidavit filed before a
Commission of Inquiry and showed it to him and remarked that
B
he was a born rebel. Shri Kapadia stated to have a glance at the
affidavit and made a personal observation that no useful purpose
would be served by telling all these thing to the Commission, as all
Commission are paper tiger. He also expressed his personal view
that Commission was not the proper forum to tell these things and
said that Shri P.C. Pande, the then CP, Ahmedabad City had rightly C
deposed before the Commission and that he Shri R. B. Sreekumar
should also emulate him. According to Shri Kapadia, he expressed
his personal views that Shri Sreekumar was biased in his
assessment of situation and that the same could further put him in
same uncalled for controversy. Shri Kapadia has denied that
D
he was sponsored by anyone to influence Shri R B.
Sreekumar and that these were his personal views
expressed as a well wisher to Shri R.B. Sreekumar, whom
he considered as an honest and good officer. However,
subsequently he came to know that Shri Sreekumar had
clandestinely recorded his conversation and an enclosed E
the transcript thereof along with his affidavit submitted to
the Commission. Shri Kapadia has also stated that on day
of his retirement i.e. 28.02.2007, Shri Sreekumar called him
to his chamber offered him a cup of tea and also an
unconditional apology for the whole episode. Shri Kapadia
F
has also stated that Shri R.B. Sreekumar regretted the
whole incident and stated that he had been advised by his
lawyer to do so as the same could have strengthened his
case pending before the CAT. Shri Kapadia has denied to have
influenced Shri R. B. Sreekumar and further denied that he was
holding any brief on behalf of the Govt. in this regard. G
Coming to the allegation made by Shri R. B. Sreekumar
that Shri G. C. Murmu, Secretary (Law & Order), Home
Department and Shri Arvind Pandya, Govt. Advocate to Nanavati-
Shah Commission of Inquiry had tried to influence him not to depose
against the Govt. prior to his appearance on 31.08.2004 before H
156 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Nanavati-Shah Commission of Inquiry, it has come to light that
the meeting was held at the request of Shri Sreekumar and the
conversation was clandestinely recorded by him it may be
mentioned here that initially both, Shri Murmu and Shri Pandya
briefed Shri Sreekumar about the modalities for his examination
and advised him about certain precautions to be taken the time of
B
his cross examination. Rest of the conversation is confusing and
does not make any sense inasmuch as there are certain gaps,
which Shri R. B. Sreekumar has tried to fill in by his own views,
on the basis of assumptions and presumptions and has interpreted
the things to support his version that he was pressurised, threatened,
C given illegal direction, intimidated to avoid the revealing of the
truth that would harm the Govt. interests and to conceal the facts
from the Commission. Shri Sreekumar has given his own
comments, observations and conclusions and has also
appreciated/interpreted this conversation in his own
manner, which showed that he is not an independent witness
D
and that he wanted to influence the Inquiry officer to accept
his inferences and conclusions. Surprisingly, Shri Sreekumar
did not state these facts before the Nanavati-Shah
Commission of Inquiry, when he appeared before it on
31-08-2004, for his cross examination even through alleged
E pressure was put on him to depose in certain way in the
Commission. Obviously, Shri R. B. Sreekumar had kept it
secret to be utilised as and when the need arose. Further,
he did not disclosed these facts even in his second affidavit
filed on 06-10-2004 before the Commission. It was only
after Shri R.B. Sreekumar was superseded in his promotion
F
to the rank of DG on 23-02-2005 that he filed his third
affidavit on 09-04-2005, before Nanavati-Shah Commission
of Inquiry of his own, and enclosed the transcript of the
recordings of the conversations with Shri Dinesh Kapadia
as well as Shri G. C. Murmu and Shri Arvind Pandya. All
G these facts would go to show that Shri R.B. Sreekumar had
anticipated these events, had recorded these conversations,
clandestinely and used the same at his convenience, when
he was superseded in promotion. This would prove that actions
on the part of Shri Sreekumar were motivated with a view to let
down the Govt. after his supersession in promotion. In all the
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 157

three affidavits filed on 06-10-2004, 09-04-2005 & 27-10-2005 A
before the Commission, Shri R.B. Sreekumar had made a request
to be summoned before the Commission and remedial measures
ordered as early as possible, but the Commission did not accede
to his request. In view of this the allegation relating to the
intimidation of Shri R.B. Sreekumar is not substantiated……”
B
(emphasis supplied)
33. In the context of the opinion of Mr. Raju Ramachandra, learned
Amicus Curiae noted after the submission of the report of the SIT before
this Court, the SIT undertook further investigation and collected relevant
materials, which have been referred to alongwith the previous materials C
in the final report presented before the concerned Court124. As regards
comments of the learned Amicus Curiae in reference to allegations (i)
and (iv), the outcome of the further investigation has been discussed and
analyzed from pages 401 to 434125. It may be desirable to reproduce the
relevant extract of the final report dealing with each observation noted
by the learned Amicus Curiae, to understand and appreciate the D
extensive, objective and impartial analysis undertaken by the SIT including
the further investigation done after the order of this Court dated
15.3.2011126. However, for the sake of convenience, we are appending
the relevant extract127 thereof and have highlighted some pertinent
portions, to this judgment to be regarded as part of this judgment128. E
After going through the materials and the analysis undertaken by the
SIT, which commended to the Magistrate as well as, the High Court, we
unreservedly hold that no other view is possible.
34. We find force in the argument of the respondent-State that
the testimony of Mr. Sanjiv Bhatt, Mr. Haren Pandya and also of F
Mr. R.B. Sreekumar was only to sensationalize and politicize the matters
in issue, although, replete with falsehood. For, persons not privy to the
stated meeting, where utterances were allegedly made by the then Chief
Minister, falsely claimed themselves to be eye-witnesses and after
124
pages 398-467 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
G
125
pages 401-434 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
126
see para 5(t) above
127
pages 398-467 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
128
Annexure-1 (at pages 308-449 of this judgment) H
158 SUPREME COURT REPORTS [2022] 6 S.C.R.

A thorough investigation by the SIT, it has become clear that their claim of
being present in the meeting was itself false to their knowledge. On
such false claim, the structure of larger criminal conspiracy at the highest
level has been erected. The same stands collapsed like a house of cards,
aftermath thorough investigation by the SIT.
B 35. We hasten to add that it is only because of the ultra-sensational
revelation projected by Mr. Sanjiv Bhatt and Mr. Haren Pandya, who
unabashedly claimed to be privy to the utterances made by the then
Chief Minister in an official meeting, the constitutional functionaries and
this Court was required to move into action taking serious note of the
same. But, after thorough investigation by the SIT, the falsity of such
C claim has been fully exposed on the basis of credible indisputable materials
collated by the SIT during the investigation in that regard.
36. Besides exposing the falsity of the claims of these two persons,
the SIT has been able to collate materials indicative of the amount of
hard work and planning of the concerned State functionaries in their
D attempt to control the spontaneous evolving situation of mass violence
across the State of Gujarat, despite the handicap of administration
including the inadequate State police force required to be replenished
with central forces/Army, which were called without loss of time and
the repeated appeals made by the then Chief Minister publicly to maintain
E peace.
37. Realizing the difficulty in pursuing the stated allegations [Nos.
(i) and (iv)], the appellant has been now advised not to pursue the same
and in the written note [reproduced in paragraph 6(www)] filed after
the conclusion of hearing, confirmed that statement. The learned counsel
F for the appellant did not contend before this Court that a larger conspiracy
emanated from the meeting of 27.2.2002; and that, therefore, had made
no reference to this meeting in this appeal during arguments at all. As
aforesaid, we are of the considered opinion that the enquiry to be made
in this case is essentially regarding the allegations of larger criminal
conspiracy at the highest level. That itself has, now, in a way, been
G abandoned by the appellant in this appeal. It must follow that no other
aspect needs to be examined in this appeal as the finding of the Magistrate
and of the High Court in that regard, is being allowed to become final.
38. It is in this context the learned counsel for the SIT had urged
that the appellant has been changing goalpost at every stage of the
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 159

proceedings before different Courts. It is seen that the allegation of A
larger criminal conspiracy at the highest level spelt out in the complaint
and protest petition, was in reference to the sensational revelation made
by Mr. Sanjeev Bhatt and Mr. Haren Pandya, the falsity whereof has
been exposed by the SIT. As a result, now the appellant is pursuing the
same allegation by relying on so-called undisputed extra-judicial
B
confessions recorded in Tehelka tapes on the specious plea that there
can be no direct evidence regarding larger conspiracy. Hence, in this
appeal, the entire focus of the appellant has been to highlight the so-
called undisputed extra judicial confessions recorded in Tehelka tapes to
be read with the inaction of the officials demonstrable from the undisputed
official documents to establish a larger conspiracy and which according C
to the appellant, has not been enquired into by the SIT. The stated
undisputed evidence, according to the appellant, points to a larger
conspiracy, which appears to involve bureaucrats, politicians, public
prosecutors, VHP, RSS, Bajrang Dal and members of the State political
establishment.
D
39. This argument, we unhesitatingly opine, is nothing short of red
herring. In that, emphasis has been placed on evidence such as SIB
messages. What has been conveniently glossed over is that, to make out
a case of larger criminal conspiracy, it is essential to establish a link
indicative of meeting of minds of the concerned persons for commission
of the crime(s), committed during the relevant period across the State E
including the heart-rending episode unfolded at Godhra on 27.2.2002, in
which large number of Kar-sevaks were burnt alive in train bogies. No
such link is forthcoming, much less had been unraveled and established
in any of the nine (9) cases investigated by the same SIT under the
directions of this Court. Accepting the argument of the appellant would F
require us to question the wisdom of this Court and to hold that even the
incident at Godhra unfolded on 27.2.2002 was also the outcome of alleged
larger criminal conspiracy. Such a view would be preposterous.
40. In that, the Godhra incident has been fully enquired into by the
SIT to the satisfaction of this Court and even the trial had ended in G
recording conviction against the concerned accused (belonging to minority
community). As to how the Godhra incident unfolded, has been analyzed
by the High Court in confirmation appeals in Godhra train case about the
acts of planning and commission by a group of persons. Suffice it to
observe that forwarding of messages by the intelligence agencies
H
160 SUPREME COURT REPORTS [2022] 6 S.C.R.

A including inaction or lack of effective measures taken by the concerned
officials per se does not imply criminal conspiracy on the part of the
State authorities. As stated earlier, absent tangible material suggestive
of a chain or any perceivable link or connection with the unfolding of
mass violence across the State, it is unfathomable as to how the SIT
could have still recommended sending the alleged offenders for trial,
B
much less would obligate the concerned Court to take cognizance on
such unfounded allegations. There is no material forthcoming to indicate
that there was failure on the part of intelligence to collect information
and it was a deliberate act on the part of the State Government authorities.
Whereas, the allegation is that intelligence inputs were collected and
C disseminated to concerned authorities, but not acted upon by the
concerned officials in right earnest.
41. Needless to underscore that inaction of the duty holders to
take those messages to its logical end, cannot be regarded as act of
criminal conspiracy unless there is material to provide link regarding the
D meeting of minds and deliberate act to effectuate a plan to spread mass
violence across the State. The SIT had recorded statement of Mr. Ashok
Narayan, the then ACS (Home), Gujarat, dated 12.12.2009, who stated
as follows: -
“…..The State of Gujarat has a long history of communal
E riots way back to 1714. Thereafter riots had erupted in the State
on many occasions during the last three centuries. However, post-
independence, major riots took place in the State in 1969, 1985
and 1992-93. Inputs regarding the communal situation in the State
had been received from the State Intelligence Bureau as well as
Intelligence Bureau, Ministry of Home Affairs, Government of
F India. This information was sent to the concerned authorities to
initiate appropriate preventive and remedial measures. Actionable
information was analysed and communicated to the DGP and other
field formation for further necessary action.
At the time when I took over as ACS (H), the communal
G atmosphere in Gujarat State was neither surcharged nor volatile
prior to 27.02.2002. It may be mentioned here that the programme
of Shilanyas for Ram Mandir at Ayodhya was announced quite a
few months back to be done on 15th March 2002 and this
announcement had arose some passions across the country. In
H Gujarat State Intelligence outputs were available to the government
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 161

about the movement of the Karsevaks from different places in A
Gujarat to Ayodhya. Keeping in view this information all SsP/CsP
were alerted on 07.02.2002 about the movements of Karsevaks.
The Government had specific information that on 16.02.2002 that
Shri Prahladbhai J. Patel, President of Bajrang Dal would leave
for Ayodhya for Maha Yagna along with 150-200 persons. Further
B
on 22.02.2002 he will depart from Mehsana railway station at
15.40 hours by Delhi-Ahmedabad Mail train for Ahmedabad and
on 24.02.2002 they would leave Ahmedabad railway station by
Sabarmati Express train 9165 Dn. at 20.25 hours for Ayodhya.
Also there was information that they will return on 26.02.2002
from Ayodhya at night and would reach Ahmedabad on 28.02.2002 C
morning. The group was supposed to carry Trishuls with them.
Accordingly this message was passed on by SP Western Railway,
Vadodara Gujarat to IG Communal Intelligence, UP, Lucknow
vide fax message dated 16.02.2002. However, no specific
information had been received from the IG Communal Intelligence,
D
UP about the return journey of Karsevaks or from anyone
else……”
This version belies the claim of the appellant including the
unfounded allegation of criminal conspiracy at the highest level for causing
mass violence across the State. The materials gathered by the SIT on
the other hand, would suggest that despite the corrective measures taken E
by the concerned officials in right earnest, the situation evolved in
unpredictable and sporadic manner and the expanse of the activities
were such that the State administration was completely overrun.
42. At the cost of repetition, be it noted that the SIT had not found
any conspiracy for linking the separate incidents of mass violence across F
the State during the investigation of nine (9) separate crimes including
the Godhra train incident, dealt with by the SIT under the strict vigil and
supervision of this Court and ably assisted by the learned Amicus Curiae
playing the role of devil’s advocate. Whereas, the messages generated
by SIB from time to time even before 27.2.2002, in fact would go to G
show that the concerned officials were vigilant, but the situation as evolved
post Godhra incident, was unparalleled and had overrun the State
administration.
43. In any case, inaction or failure of some officials of one section
of the State administration cannot be the basis to infer a pre-planned H
162 SUPREME COURT REPORTS [2022] 6 S.C.R.

A criminal conspiracy by the authorities of the State Government or to
term it as a State sponsored crime (violence) against the minority
community. The SIT had noted that inaction and negligence of the erring
officials has been taken note of at the appropriate level including by
initiating departmental action against them. Such inaction or negligence
cannot pass the muster of hatching of a criminal conspiracy, for which
B
the degree of participation in the planning of commission of an offence
of this magnitude must come to the fore in some way. The SIT was not
there to enquire into the failures of the State administration, but the remit
given to it by this Court was to enquire into the allegations of larger
criminal conspiracy (at the highest level).
C 44. Conspiracy cannot be readily inferred merely on the basis of
the inaction or failure of the State administration. In the enquiry
undertaken by the SIT, it had been found that the developments were in
quick succession and had overrun the arrangements already in place or
for that matter, additional support by calling Army on 28.2.2002 itself
D besides the curfew imposed in the most disturbed areas of the State. In
light of such timely corrective measures taken by the State Government
in right earnest and repeated public assurances given by the then Chief
Minister that guilty will be punished for their crime(s), and to maintain
peace, it would be beyond comprehension of any person of ordinary
prudence to bear suspicion about the meeting of minds of named
E offenders and hatching of conspiracy by the State at the highest level, as
alleged, much less grave or strong suspicion as being the quintessence
for sending the accused for trial for an offence of criminal conspiracy.
45. The protagonists of quest for justice sitting in a comfortable
environment in their air-conditioned office may succeed in connecting
F failures of the State administration at different levels during such
horrendous situation, little knowing or even referring to the ground realities
and the continual effort put in by the duty holders in controlling the
spontaneous evolving situation unfolding aftermath mass violence across
the State. The linking of such failures is not enough to entertain a suspicion
G about hatching of criminal conspiracy at the highest level, which requires
a concerted effort of all the persons concerned and more importantly,
clear evidence about meeting of the minds to accomplish such design,
much less of causing and precipitating mass violence across the State.
It is apposite to recall the observations in Reg vs. Hodge128A, adverting
128A
(1838) 2 Lew 227, referred to in Hanumant, son of Govind Nargundkar vs. State
H of Madhya Pradesh – 1952 SCR 1091
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 163

to the address by Baron Alderson about the dexterity and ability of A
ingenious mind to create theories, where he had said: -
“The mind was apt to take a pleasure in adapting circumstances
to one another, and even in straining them a little, if need be, to
force them to form parts of one connected whole; and the more
ingenious the mind of the individual, the more likely was it, B
considering such matters, to overreach and mislead itself, to supply
some little link that is wanting, to take for granted some fact
consistent with its previous theories and necessary to render them
complete.”
Be that as it may, overrunning of State administration is not an C
unknown phenomenon. It has been witnessed all over the globe during
the second wave of pandemic, where the countries with even best of
medical facilities crumbled and their management skills were overrun
under the pressure. Can it be said to be a case of hatching of criminal
conspiracy? We need not multiply such instances of overrun. Breakdown
of law-and-order situation if for short duration, cannot partake the colour D
of breakdown of rule of law or constitutional crisis. To put it differently,
misgovernance or failure to maintain law-and-order during a brief period
may not be a case of failure of constitutional machinery in the context of
tenets embodied in Article 356 of the Constitution. There must be credible
evidence regarding State sponsored breakdown of law-and-order E
situation; not spontaneous or isolated instances or events of failure of
State administration to control the situation. Suffice it to observe that the
breakdown of law-and-order situation in the State including attributable
to the alleged inaction of the (State) duty holders, owing to spontaneous
mass violence cannot be a safe measure to infer as being a part of the
criminal conspiracy at the highest level of political dispensation unless F
there is clear evidence to so conclude regarding meeting of the minds of
all concerned and their concerted efforts to commit or promote
commission of such crime. The allegation in the present case, if at all
relevant, was founded on falsehood of the claim of Mr. Sanjeev Bhatt
and Mr. Haren Pandya regarding the utterances of the then Chief Minister G
in review meeting chaired by him – which stood completely exposed
after the investigation by the SIT.
46. For the same reason, it would not be open to the concerned
Court to take cognizance or to call upon the SIT to do further investigation
absent any tangible material. On the other hand, the opinion recorded by H
164 SUPREME COURT REPORTS [2022] 6 S.C.R.

A the SIT while dealing with allegation No. (viii)129, has dealt with the
materials to conclude that it cannot be said that no action had been taken
on letters sent by Mr. R.B. Sreekumar. Similarly, while dealing with the
allegation [No. (xiv)] regarding undue delay in requisition and deployment
of Army130, the SIT had opined that there was genuine problem of
deploying Army despite sending of requisition on 28.2.2002 at 1300 hrs.,
B
which message was sent by fax to the Union Defence Secretary, Ministry
of Defence at 1430 hrs. and the time taken in posting the Army after its
arrival due to logistical reasons.
47. Suffice it to observe that there is no tittle of material, much
less tangible material to support the plea of the appellant that the Godhra
C incident unfolded on 27.2.2002 and the events which followed, was a
pre-planned event owing to the criminal conspiracy hatched at the highest
level in the State. It is well settled that conspiracy requires an act (actus
reus) and an accompanying mental state (mens rea). The agreement
constitutes the act and the intention to achieve the unlawful objective of
D that agreement constitutes the required mental state. The offence of
conspiracy is independent of other offences. It takes place when there
is an agreement to do or cause to be done an illegal act, or an act which
may not be illegal but by illegal means. The rationale of conspiracy is
that the required objective manifestations of dispositions of criminality is
provided by the act of agreement. To convict a person of conspiracy, the
E prosecution must show that he agreed with others that together they will
accomplish the unlawful object of the conspiracy131. As noted earlier,
inaction in the response or even in a given case of non-responsive
administration, can be no basis to infer hatching of criminal conspiracy
by the authorities of the State Government in absence of any clear
F evidence about the meeting of minds; and that, failure to respond to the
messages sent by SIB was a concerted and deliberate act of omission
or commission on the part of the State and other functionaries, as alleged.
The SIT had recorded the statements of all concerned including the
officials before forming the opinion, as noted in the final report, to discard
G 129
pages 280-283 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
130
pages 293-294 and 342-343 of original copy of the final report forming part of
Convenience Compilation of respondent No. 2
131
See Firozuddin Basheeruddin (supra at Footnote No. 43), R. Venkatkrishnan
(supra at Footnote No. 45), Shiv Charan Bansal (supra at Footnote No. 46), and
H Nazir Khan (supra at Footnote No. 59)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 165

the allegation under consideration. The Magistrate, as well as, the High A
Court committed no error whatsoever in accepting the final report
presented by the SIT.
48. Thus understood, the argument pressed into service about the
existence of materials regarding build-up of communal mobilizations and
stockpiling of weapons, arms and ammunitions even before the Godhra B
episode on 27.2.2002 being part of the larger criminal conspiracy, is
devoid of merits. This argument proceeded on an erroneous assumption
that the SIT had not investigated into this crucial matter. The final report
presented by the SIT before the concerned Court has dealt with the
relevant aspects while considering allegation No. (viii) 132, as also, under
the heading “Failure to Act on Suggestions From State Intelligence”, C
while considering the allegations against the then Chief Minister133, in
the following words: -
“…..
Failure to act on suggestions from State Intelligence D
Shri Narendra Modi has stated that in order to bring
to bring peace and normalcy in the State, he had made
regular appeals through media to maintain peace and
Communal harmony. CM has claimed to have formed a
Committee under the Chairmanship of the Governor of the E
State; Leader of Opposition and others to supervise the
relief operation. He has further stated that the relief camps
were opened in the affected areas served by the NGOs and local
social leaders. He has also stated that the funds were contributed
by the Govt. as per policy and the relief operations supervised by
the Committee. According to Shri Modi, the necessary food, F
drinking water, medicines and cash, etc were arranged in these
camps and arrangements also made for the children education in
these camps. According to Shri Modi, some PIL had been filed in
this regard in Gujarat High Court and the same should be looked
into……” G
And again:
132
pages 280-283 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
133
pages 347-348 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2 H
166 SUPREME COURT REPORTS [2022] 6 S.C.R.

A “….. As regards the DO letter dated 24-04-2002 sent by
Shri R.B. Sreekumar, the then Addl. DG (Int.) to Shri Ashok
Narayan, the then ACS (Home). Shri Narendra Modi has stated
that no such letter was put up to him. However, Shri Ashok
Narayan, the then ACS (Home) has stated that the letter
contained general observations and concrete details were
B
missing and therefore, he had discussed from Shri R.B.
Sreekumar and requested him to take action at his level as
far as possible. Shri Ashok Narayan does not recollect
having put up this letter to CM. Shri K. Chakravarthi the
then DGP has stated that most of the points and issues
C raised by Shri R.B. Sreekumar had been effect1vely dealt
with in March & April, 2002. Shri Chakravarthi has also stated
to have taken adequate steps to restore the loss of faith of the
minority community in the Criminal Justice System by instructing
the concerned police officers to be fair to ensure proper registration
of FIR effect arrests of the accused persons and to proceed ahead
D
With the investigation as per law. Shri Chakravarthi has also stated
that the, teams of the police officers were sent to the relief camps
for direct contact with the affected persons and to proceed with
the investigation in a fair manner. Shri Chakravarthi has also
spoken of having given instruction to the senior officers to closely
E supervise these cases to avoid any allegations. According to Shri
Chakravarthi, special instruction was given by him to all the police
officers to provide suitable protection to those who wanted to
return to their original residenceI Business. Regarding the law &
order situation, review report sent by Shri R.B. Sreekumar to
Home Department on 15-06-2002, requesting the postponement
F
of the Rath-Yatra till an atmosphere of durable peace and goodwill
was established between the majority and minority community,
Shri Ashok Narayan has stated to have discussed the matter with
Chief Minister, who did not agree with the views of Shri Sreekumar
to stop the Rath-Yatra, as this was an event in vogue for so many
G years. Shri Ashok has also stated that the Administration did not
agree with the view of Shri Sreekumar and the Rath-Yatra was
taken out on 12-07-2002, under police bandobast and the event
passed off peacefully. Further, according to Shri Chakravarthi,
these were the personal views of Shri Sreekumar, which were
duly considered by the Govt. Shri Chakravarthi has also stated
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 167

that the report sent by Shri Sreekumar was not well through of A
and was not based on realities and therefore Govt. did not agree
with the view of Shri Sreekumar and that his apprehensions were
without any basis. Coming to another report on the prevailing law
& order situation sent vide letter dated 30-08-2002 with the
approval of Shri Sreekumar, it may be mentioned that the gist of
B
presentation made before the Election Commission on 09-08-2002,
was included in the same. In nutshell Shri Sreekumar projected in
this letter that the communal tension continued and the communal
gap had widened between Hindus and Muslims and that any minor
issue would reignite communal passions resulting in clashes as
had been witnessed in Dhoraji, Rajkot on 17-08-2002. Shri Ashok C
Narayan has stated that he sent a DO letter dated 09-09-2002 to
Shri Sreekumar that his assessment of law & order situation
conveyed on 20-08-2002, was not in tune with the feedback
received by him from other agencies. Shri Ashok Narayan has
further pointed out that some feeling of insecurity amongst
D
the minority community was understandable in isolated
pockets, but the same did not indicate the feelings of
insecurity anymore. Shri Ashok Narayan disagreed with the
views of Shri Sreekumar on the ground that no broad based
inputs were relied upon by him before arriving at a
conclusion. As regards the letter dated 28-08-2002 Shri E
Ashok Narayan, the then ACS (Home) has stated that he
did not recall the action taken by him on the said letter, but
the suggestions made therein seemed logical and in normal
course action must have been taken by the Home
Department. Shri K. Chakravarthi has stated that as far as
F
police department was concerned, he had given directions
based on his suggestions. However, the relevant files on the
subject have not been made available by the Govt. of Gujarat.
Keeping in view the versions of Shri Ashok Narayan, Shri
K. Chakravarthi and Shri Narendra Modi about the Rath-Yatra
and also about the DO letter dated 09-09-2002 sent by Shri Ashok G
Narayan to Shri Sreekumar, it can not be said that no action
was taken on the views sent by the latter to the Govt. In
view of the position explained above the allegation is not
established……”
(emphasis supplied) H
168 SUPREME COURT REPORTS [2022] 6 S.C.R.

A 49. Reverting to the allegation coined as “Allegations Carried by
Tehelka Magazine”, the final report deals with the same as follows134:-
“…..
Allegations carried by Tehelka magazine:
B When confronted with the interviews given by Shri Haresh
Bhatt, the then MLA, Babu Bajrangi and Rajendra Vyas, President,
VHP Ahmedabad City to Shri Ashish Khetan, Special
Correspondent, Tehelka, Shri Narender Modi has stated that the
allegations leveled against him were false and incorrect. He has
further stated that this issue was raised in November 2007, after
C about six years of incident and that too at the time of elections in
December, 2007. Further, these issues were again raked up in
April 2008 when the SIT was appointed by the Supreme Court.
Shri Modi has also stated that this issue was again raised on
22-02-2010, when he was to appear before the SIT for his
D examination. According to Shri Modi, the whole episode is
motivated and stage managed and that he had no personal
knowledge about the authenticity of the said CD.
In this connection, it may be added here that Shri Haresh
Bhatt, formerly MLA and accused Babu Bajrangi in Naroda
E Patiya case have admitted their voice as also the contents of the
CD. Shri Haresh Bhatt has stated that one Shri Ashish had
approached him that he wanted to write a thesis on Hindutva and
wanted him to contribute some spicy material for the same, so
that he could succeed in his mission. He has further stated that
Ashish visited him at his residence in Ahmedabad City as well as
F at Godhra at least 7-8 times in a month period and when the
reference came to Gujarat riots, he gave an imaginary story as
Ashish wanted some spicy material for his thesis. He has stated
that the talks about a CBI inquiry, the fact that he owned a
gun factory where diesel bombs and pipe bombs were made
G and distributed to Hindus, the fact about two truck load of
swords ordered from Punjab and subsequently distributed
amongst Hindus, making of a rocket launcher in his gun
factory by filling them with gun powder and lighting a 595
134
page 352 of original copy of the final report forming part of Convenience Compilation
H of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 169

local made bomb to blast were absolutely false and baseless. A
He has also mentioned that his talk about Shri Narendra
Modi having openly said that we had three days to do,
whatever we could do and that he would not give us time
after that, were imaginary story and that Shri Modi never
told these things to him.
B
Shri Babu Bajangi has stated that Shri Ashish Khetan
had given him a script and he simply read out the same and that
none of those facts were correct. After going through the facts
stated by these persons during the sting operation, it appears that
they were bragging and that most of the facts stated by them are
innocent. Further, they were not questioned as to how and when C
Shri Narendra Modi gave them three days time. The facts about
a gun factory owned by Shri Haresh Bhatt and changing the
judge thrice by Shri Narendera Modi are unacceptable by
any stretch of imagination inasmuch as no such gun factory
could be unearthed by the police and Shri Modi was not D
competent to transfer could be unearthed by the police and
Shri Modi was not competent to transfer the judges, as the
same is the prerogative of the Gujarat High Court. There
are many factual inaccuracies in the statement of Babu Bajrangi
inasmuch as he has stated that there were 700-800 dead bodies in
Naroda Patiya and that the Commissioner of Police had instructed E
the policemen to throw it at different places in Ahmedabad City,
as it would be difficult to explain the same. This is absolutely
incorrect inasmuch as only 84 dead bodies were found at Naroda
Patiya and 11 persons were reportedly missing. In any case this
evidence has already been adduced in the Court and the matter is F
subjudice and hence no further comments……”
(emphasis supplied)
50. It is indisputable that the Tehelka tape was the brainchild of
Mr. Ashish Khaitan who was working with Tehelka. He had conducted
an enquiry of similar nature in the past, where the workers of VHP had G
indulged in vandalism and manhandled some of the students and a
professor over a painting wherein objectionable images of Hindu Deities
were displayed. Mr. Ashish Khaitan, in order to conduct a sting operation
on this occasion, used a spy camera and also prepared an identity card
in assumed name of Piyush Agarwal of Delhi University. He visited H
170 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Baroda and conducted sting operation on Mr. Dhimant Bhatt, Chief
Auditor of M.S. University, Baroda and office bearer of VHP.
Thereafter, from May to September, 2007, he recorded the audio/visual
conversations of 18 individuals pertaining to post-Godhra riots. The
telecast of the sting operation was published on 27.10.2007 in television
channels. After such publication, the NHRC directed CBI to submit
B
report vide order dated 5.3.2008. The CBI in the course of enquiry,
collected certain information and submitted report to the NHRC, opining
regarding authenticity of the recordings in the sting operation and operation
‘Kalank’ delineating four points: -
“(i) Video signals in the footage of the DVDs P-V/D-1 to P-v/D-
C 15 match in respect of speech, utterances, laugher, stray ringing
tones of mobile hand sets, movements of body parts and body
language of the persons appearing in the recorded events.
(ii) No Evidence of editing, alteration and tempering has been
detected in the audio video recordings and their respective voice
D track recorded in the DVDs, exhibits P-V/D 1 to P-V/D-15 (ii)
Cameras exhibits P-I/I and P-II/I are in working order.
(iii) The camera characteristics of the video clips, their signals,
frame coordinates and number of frames per second of the video
footage and the time lag of audio track recorded I the DVD exhibits
E P-V/D-I to P-V/D-15 are similar to the camera signals, frame
co-coordinators, number of frames per second and the time lag of
audio track recordings of cameras P-I/I and PII/I and hence the
DVDs could have been recorded with the camera exhibit P-I/I
and the camera exhibit P-II/I.
F (iv) A large number of video clips produced in the video CDs
exhibits P-V/C-I to P-V/C-5 have been taken from the video
footages of DVDs exhibits PV/D-I to P-V/D-15 on the CDs.
However, in some of the clips of CDs, the voice (audio signals) in
the recording of DVDs have not been produced.”
G From this report, the technical veracity of the tape can be accepted
on the basis of CFSL report. However, as that would not be sufficient,
the SIT recorded the statements of 13 persons who were available and
had made revelations on Tehelka tape. As aforesaid, only one of them
has been named as offender (No. 22) in the complaint filed by the
appellant, namely, Babubhai alias Babu Bajrangi. The material from sting
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 171

operation has been submitted by the SIT in three (3) out of nine (9) sets A
of cases assigned to SIT by this Court, namely, in Gulberg Society, Naroda
Patiya and Naroda Gaam, where the persons making revelations have
been named as accused in the concerned case. As regards the evidence
from the stated sting operation produced by the SIT in CR No. 67/2002
concerning Gulberg Society, the trial Court in its judgment dated
B
26.12.2013 after analyzing the same, has held that a sting operation can
at best be a good corroborative material against the accused who are
stung by the operation, relying on the decision of this Court in R.K.
Anand135 and Rajat Prasad136. We do not wish to elaborate further on
the view taken by the trial Court in the stated case, as it is pending
challenge. Suffice it to mention that Mr. Babu Bajrangi has already been C
chargesheeted and tried in connection with the evidence concerning sting
operation in which he was stung. The SIT had noted that call details of
Mr. Babu Bajrangi reveal that he was in Ahmedabad from morning till
11:15 hrs. on 27.2.2008 and could not have remained present at Godhra
at the time of incident.
D
51. We find force in the argument of the respondents that although
the sting operation was not part of the complaint filed by the appellant or
the report of the learned Amicus Curiae, but the same has been thoroughly
investigated by the SIT including by recording statement of 13 persons
who were stung. At the end of the investigation, the SIT found that other
persons whose statements were recorded by the SIT were not accused E
in any case and also no corroborative evidence pertaining to any larger
conspiracy was found in their statements. Absent such corroborative
material, the evidence in the form of sting operation can be of no avail,
much less to take forward the allegation of larger criminal conspiracy at
the highest echelon of the administration. No evidence regarding meeting F
of minds could be culled out from the statements of the concerned persons,
much less to link the offenders named in the complaint of appellant.
52. The emphasis placed on purported extra-judicial confession
of 18 persons as recorded in Tehelka tape, it needs to be understood that
the extra-judicial confession can at best be used against the maker and G
not against others136A. Further, such statements need corroboration to
be used against other accused. The SIT nevertheless recorded statement
135
supra at Footnote No. 85
136
supra at Footnote No. 85
136A
see: Section 30 of the Indian Evidence Act, 1872 H
172 SUPREME COURT REPORTS [2022] 6 S.C.R.

A of 13 out of 18 persons, who had made revelations, as recorded in Tehelka
tape. Out of them, only Mr. Babu Bajrangi Patel, Member, Bajrang Dal
has been named as an offender in the complaint submitted by appellant.
The SIT in its final report, has considered the relevant aspects while
dealing with offender No. 22 – Mr. Babu Bajrangi Patel, in the following
words137: -
B
“…..
A-22: Shri Babu Bajrangi Patel, Member, Bajrang Dal.
Shri Babu Bajrangi has stated that he joined Bajrang Dal in
1995, later got introduced to Shri Pravin Togadia, Shri Jaydeep
C Patel and Home Minister Shri Gordhan Zadafia and also case in
contact with other Sangh Parivar activists. He has stated to have
come to know about the Godhra carnage through TV news on
27-02-2002, in which one of the Kar-sevaks, namely, Shri
Bhimjibhai K. Patel belonging to his community was also killed,
D whereas other kar-sevaks from his village namely Shri Dharmendra
Patel and others survived. He has further stated that his nephew
Shri Bharat R. Patel had visited Godhra on 27-02-2002, by car on
that day and returned to Ahmedabad in the night. He has taken
the plea that mobile phone no. 9825020333 was used by his nephew
Shri Bharat Patel. He has further stated that he went to Sola Civil
E Hospital on 28-02-2002 at about 0700 hrs and the dead body of
Bhimji K. Patel was identified by Shri Vashrambhai, uncle of Bhimji
Patel, taken by them to their village, and they arrived at about
1330 hrs. The funeral of Late Bhimjibhai Patel was over at about
1530 hrs and thereafter, he has stated to have gone to Khedbrahma
F along with Shri Dharmendra Patel. He has further stated that he
stayed at Khedbrahma on 28-02-2002, as the communal riots had
erupted and no transport was available. According to Shri Babu
Bajrangi, he returned to Naroda on 01-03-2002 late in the night
and was informed by his family members that he had been named
as an accused in Naroda Gam and Naroda Patiya carnage cases.
G Thereafter, he has stated to have left for his elder sister Laxmiben’s
house on 02-03-2002, who stays in village Kevdia-Kampa and
stayed there for about three or four months. As per Shri Bajrangi,
he was arrested by the Crime Branch, Ahmedabad City, on
137
pages 365-366 of original copy of the final report forming part of Convenience
H Compilation of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 173

28-02-2002, taken on remand for 10 days and then sent to jail. A
Subsequently, he was released on bail on 19-10-2002.
He has admitted that Shri Ashish Khetan met him as Piyush
Agarwal and informed him that he was making a film on Hinduism
and that he has to pay a role in it and speak some dialogues. He
has admitted his voice, and the conversation held with Shri Ashish B
Khetan, but has taken the plea that he had read the dialogues as
per a written script given by Shri Ashish Khetan. However, he
had stated that all these facts were incorrect and that he had
spoken the same, as Shri Ashish Khetan asked him to do so.
It may be mentioned here that Shri Babu Bajrangi has C
already been charge sheeted in Naroda Patia case (Naroda P.S.I.
CR No. 100/2002) as well as Naroda Gam case (Naroda P.S.I.
CR No. 98/2002) and is facing trial. In view of the fact that the
matter is sub-judice, no action is called for in the matter……”
53. The SIT has not found any conspiracy, linking separate and D
disparate acts of arson and looting or outrageous claims made in sting
operations or individual utterances/publications of purported hate speech,
to any singular larger conspiracy or planned event. The materials gathered
during the investigation, in no way link any “meeting of the minds” in any
of the nine (9) cases investigated by the SIT or for that matter, other
incidents alleged in the complaint or the protest petition. The riots across E
the State had taken place spontaneously, immediately after the Godhra
Train Carnage. In the investigation done by the SIT in all the nine (9)
sets of cases, no material was discovered pointing towards any meeting
of minds/conspiracy in the higher echelons of the administration or the
political establishment conspired with other persons to cause such riots F
or for having turned nelson’s eye when the riots had triggered and
continued. There is no chain or any perceivable link or connection in
these occurrences during the relevant period, which ought to be the
quintessence had it been a case of larger conspiracy at the highest level.
Indeed, the factum of conspiracy can be inferred, but absent any
perceivable link, much less about the meeting of minds of all concerned, G
it is not open to assume conspiracy in the air.
54. From this discussion, it is amply clear that the argument pressed
into service on the premise of no investigation done by SIT on crucial
matters is contrary to the materials on record and we find that the opinion
H
174 SUPREME COURT REPORTS [2022] 6 S.C.R.

A recorded by the SIT is after due consideration of all aspects and backed
by tangible materials gathered during investigation by it.
55. For the same reason, the argument regarding mass mobilizations
and hate speech on 27.2.2002 regarding proactive and aggressive
behaviour of persons returning from Ayodhaya/Kar-sevaks after the
B Godhra attack, is tenuous. During the course of arguments, much effort
was made by the appellant to impress upon us that the SIT had not even
bothered to record the statement of Mr. Anil Patel, which the respondents
have duly refuted by pointing out from the record that there are three
persons with the same name - Anil Patel and the SIT had recorded
statement of all of them (Mr. Anil Shankerbhai Patel - VHP worker;
C Anil Tribhovandass Patel – a former Minister and named as one of the
offenders in the complaint; and Anil M. Patel - BJP Doctor Cell) - and
also analyzed the same in the final report. The appellant had referred to
the statements of Dr. Anil M. Patel, as if he was concerned with the
sting rather than reading the statement of Mr. Anil Shankerbhai Patel.
D Similarly, incorrect submission was made in reference to Mr. Arvind
Pandya, Advocate, who was one of the persons stung in operation
‘Kalank’. The appellant contended that he was appointed as a public
prosecutor in riot cases. As a matter of fact, Mr. Arvind H. Pandya, was
appointed as one of the defending Special Counsel for Gujarat State in
June, 2002 to defend the State Government before Nanavati-Shah
E Commission of Enquiry and he later resigned in October, 2008.
56. Be that as it may, much argument was made about the post-
mortem of dead bodies in the open in Railway yard and also, parading
them from Godhra to Ahmedabad. According to the appellant, the post-
mortem was done in the open yard as part of larger criminal conspiracy
F to obliterate the real cause of death of Kar-sevaks at Godhra due to fire
and then to transport the dead bodies to Ahmedabad so as to parade
them amidst shouting of provocative slogans so as to arouse passions.
This plea taken in the protest petition is of pure conjectures and surmises.
In that, the deaths had been caused due to the violent act of group of
G persons (who were later identified after investigation and faced trial
ending in conviction) for setting the train (Coach S6 of Sabarmati Express)
carrying Kar-sevaks on fire. The case concerning Godhra train episode
was also investigated by the SIT under the supervision of this Court and
that trial ended in conviction of 32 (thirty-two) persons and the
confirmation appeals for capital punishment have also been disposed of
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 175

by the High Court. In those proceedings, the Courts have considered the A
issue concerning post-mortem of dead bodies in the open in Railway
yard. In other words, the issue under consideration raised by the appellant
has already passed the muster of judicial scrutiny before the trial Court
and the High Court. Accepting the argument of the appellant on this
score would need reinvestigation of the concluded case which must be
B
eschewed and cannot be countenanced.
57. The allegation [No. (ii)] regarding parading of dead bodies,
has been dealt with by the SIT with in the following words138: -
“…..
ALLEGATION No.II : C

CM’s decision to bring the dead bodies of victims of Godhra
train fire incident to Ahmedabad and parade them in
Ahmedabad City.
Enquiries revealed that Smt. Jayanti Ravi, the then Collector D
& District Magistrate, Godhra Panchmahals District received a
telephone call at about 0800 hrs from Shri Raju Bhargava, the
then Superintendent of Police, Panchmahals District that there
had been an incident of stone pelting as also torching of railway
coach of the Sabarmati Express near Godhra Railway Station.
Immediately, messages were conveyed to the concerned E
Municipal Authorities at Godhra, Lunawada and Kalol to send the
fire tenders to the spot. According to Smt.Jayanti Ravi, she reached
the spot near Godhra Railway Station at about 0845 hrs. By that
time, a crowd had assembled at Godhra Railway Station and the
immediate problem was to take care of the transit passengers F
who had been stranded there, because of the fire and stone pelting
incident. The injured passengers were given medical aid by the
Civil Hospital, Godhra, whereas those, who had received severe
burn injuries, were immediately admitted to the Civil Hospital,
Godhra. Around 1200 hrs, the District Administrative officials could
step into the S6 coach of Sabarmati Express with a view to assess G
the actual number of deaths in the incident. As the bodies in the
coach were charred and in mutilated condition, it was virtually
impossible to count the head. In order to ensure that the stranded
138
pages 261-263 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2 H
176 SUPREME COURT REPORTS [2022] 6 S.C.R.

A passengers were not put to any further inconvenience, the railway
authorities detached the two affected/burnt bogies from the main
train, parked them in the railway yard and joined the rest of the
bogies together. Finally, the Sabarmati Express left Godhra around
1300 hrs for Ahmedabad, its destination.
B Shri Narendra Modi, Chief Minister arrived at Godhra by
helicopter sometime between 1600 hrs to 1700 hrs and was
accompanied by Shri Anil Mukim, the then Secretary to CM. He
was received at the helipad by Smt. Jayanti Ravi and Shri Ashok
Bhatt and he straightaway drove to the Godhra Railway Station.
CM inspected the spot and talked to some of the persons gathered
C there. Since, curfew had been imposed in the Godhra town, the
Chief Minister decided to go to Collectorate and meet the people
as well as press. At that time Shri Gordhan Zadafia and Shri
Prabhasinh Chauhan, the then Minister of Civil Aviation &
Pilgrimage and being a local MLA, had also come and they all
D went to the Collectorate Smt Jayanti Ravi has stated that in
the meeting held at Collectorate, one Shri Jaydeep Patel, a
VHP activist was also present. Smt. Jayanti Ravi has also
stated that after holding discussions, a unanimous decision
was taken that the dead bodies, which had been identified
should be handed over to their relatives at Godhra itself
E and those bodies whose legal heirs or guardians had not
come, could be sent to Sola Civil Hospital, Ahmedabad
since, they belonged to Sabarmati Express heading towards
Ahmedabad. Smt. Jayanti Ravi has categorically denied that
decision was taken against her wishes. The decision to send
F the bodies to Sola Civil Hospital was taken in view of the
fact that it was situated on the outskirts of Ahmedabad City
and thus away from the crowded area for security reasons.
It has further come to light that out of 58 burnt and dead
bodies, 4 bodies belonging to Dahod, Vadodara, Panchmahal
and Anand Districts were handed over to their legal heirs/
G guardians after identification at Godhra itself. The remaining
54 dead bodies were to be sent with police escort to Sola
Civil Hospital, Ahmedabad. Further, Shri Jaydeep Patel of
VHP was to accompany them.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 177

Enquiries revealed that as per the call detail records of mobile A
phone no. 9825023887 of Shri Jaydeep Patel, he reached Godhra
on 27-02-2002 around 1248 hrs and remained there till 2358 hrs.
At Godhra, he had made/received calls to/from Shri Gordhan
Zadafia at the latter’s mobile phone no. 9825049145. All these
calls had been made/received between 2003 hrs and 2113 hrs.
B
He had also received calls from Shri R. J. Savani, the then DCP,
Zone-V, Ahmedabad City from his mobile phone no. 9825049198
between 1305 hrs and 2116 hrs. The aforesaid call detail records
establish that Shri Jaydeep Patel remained at Godhra till about
2358 hrs on 27-02-2002.
Enquiries further revealed that Shri M.L. Nalvaya, the then C
Mamaldar & Executive Magistrate issued a letter addressed to
Dr. Jaydeep Patel of VHP, in which he had mentioned that 54
dead bodies were being sent through five trucks as detailed below:

D

E

One Shri Hasmukh T. Patel of Vishwa Hindu Parishad had
acknowledged the dead bodies. It may be mentioned here that
the handing over of the dead bodies to their legal heirs/guardians F
was the duty of the railway police, who had registered a case in
connection with this incident. Shri M. L. Nalvaya has stated that
these dead bodies were handed over officially to Shri Jaydeep
Patel and Shri Hasmukh T. Patel of VHP as per the instruction
given by Smt. Jayanti S. Ravi, DM and Late B. M. Damor, ADM,
G
Godhra. Shri M. L. Nalvaya has filed an affidavit before Nanavati
Commission of Inquiry to this effect on 05-09-2009. However
Smt. Jayanti Ravi has stated that no such instructions were
given to Shri Nalvaya to hand over the dead bodies to Shri
Jaydeep Patel or Shri Hasmukh T. Patel of VHP and that
H
178 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Shri Jaydeep Patel was merely to accompany the dead
bodies to Ahmedabad.
Shri Raju Bhargava, the then Superintendent of Police,
Godhra has stated that since, there was a curfew in the town, he
had arranged for four (4) mini trucks, Tata-407 and one Tata-608
B tempo for the transportation of the aforesaid dead bodies. He
also arranged for the police escort with a pilot gypsy. Further, one
Sub Inspector was sent in gypsy with some other staff and two
armed guards each were made to sit in the aforesaid five vehicles.
The convoy left Godhra around midnight intervening 27/28-02-
2002 for Ahmedabad by road. On the way to Ahmedabad, the
C escorts from the concerned districts had replaced each other. The
five trucks carrying dead bodies reached Sola Civil Hospital,
Ahmedabad between 0330 hrs to 0400 hrs on 28-02-2002. At
Sola Civil Hospital, Dr. Pushpa Belani, Medical Superintendent,
PI Lathiya of Sola P. S., Shri Prajapati, Deputy Collector, Shri
D K. Srinivas, Collector and several other Administrative and Police
Officers were present. Shri Jaydeep Patel handed over the letter
to Shri Prajapati, the then Dy. Collector and the police and the
administrative officials got busy with the preparation of panchnama
and other documentation. The relatives of the persons, who had
died in the Godhra carnage, were also present in the hospital.
E Accordingly, 35 persons were identified and their dead bodies
handed over to their relatives by about 1300 hrs on 28-02-2002 by
the police after obtaining receipts from them. It may be mentioned
here that 25 dead bodies were claimed by the residents of
Ahmedabad, two (2) by the residents of Kadi, Mehsaha, five (5)
F by the residents of Anand, two (2) by the residents of Khedbramha,
Sabarkantha and one (1) from Rajkot. The photographs and DNA
samples of the remaining unidentified 19 dead bodies were taken
by the hospital authorities. These 19 unidentified dead bodies were
cremated on 28-02-2002, at Gota cremation ground near Sola Civil
Hospital by the District Administrative and Police officers with
G the help of Surpanch of Gota village, which is situated on the
outskirts of Ahmedabad city. The cremation was completed by
about 1830 hrs on 28-02-2002.
On 28-02-2002, twelve (12) charred dead bodies of Godhra
carnage were brought to Ramol, Ahmedabad City from Sola Civil
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 179

Hospital. All these deceased persons belonged to Ramol-Khokhra A
area. Shri M.K. Tandon, Jt. CP, Sector-II instructed Shri R.J.
Savani, DCP, Zone-V to make efforts to ensure that the dead
bodies were moved in vehicle and not by foot, as the same would
have esoalated the tension. It may be mentioned here that ten
(10) kar-sevaks belonged to Ramol and two (2) kar-sevaks were
B
from Khokhra. Shri R.J. Savani succeeded in persuading the
relatives and the well wishers of the deceased to take each body
in a vehicle and the funeral procession was guarded by the police
up to Hatkeshwar cremation ground, about 4 kms away from
Ramol-Khokhra. The funeral was over by about 1400 hrs. and
the crowd which had gathered on the highway dispersed thereafter. C
It may thus be seen that the journey from Godhra to
Ahmedabad started around midnight and the dead bodies
reached Sola Civil Hospital sometime between 0330 to
0400 hrs and there was no one on the highway at that point
of time in the night to see them. Further, though a letter D
had been addressed by Shri M.L. Nalvaya in the name of
Shri Jaydeep Patel of VHP and the dead bodies were
acknowledged by Shri Hasmukh T. Patel of VHP, yet the
dead bodies were escorted by the police upto Sola Civil
Hospital, Ahmedabad situated on the outskirts of
Ahmedabad City. At Sola Civil Hospital, Shri Jaydeep Patel E
handed over the letter to the hospital authorities and the
local police as well as the hospital authorities took charge
of the dead bodies. Subsequently, 35 dead bodies were
handed to the legal heirs/guardians of the deceased by the
police after completing the formalities and documentation. F
The 19 unidentified dead bodies were cremated quietly on
the same evening by the local administration and police
authorities at Gota cremation ground nearby with the help
of Sarpanch of Gota village after retaining their DNA
samples. Subsequently, 12 dead bodies could be identified
after conducting DNA tests, while the remaining seven (7) G
remained unidentified.
The above facts would go to establish that though a
letter had been addressed by Mamalatdar, Godhra to Shri
Jaydeep Patel of VHP, yet the dead bodies were escorted
H
180 SUPREME COURT REPORTS [2022] 6 S.C.R.

A by the police from Godhra to Ahmedabad, where the same
were taken charge of by the hospital authorities, District
Administrative and Police Officers and handed over to the
kith and kin of deceased persons after taking proper
receipt. Further, the unidentified bodies were disposed of
by the District Administrative and police officers. The fact
B
that 25 deceased persons belonged to Ahmedabad, 2 to
Mehsana, 1 to Rajkot and 2 to Sabarkantha places accessible
via Ahmedabad and the same were claimed by their legal
heirs/guardians at Ahmedabad justifies the decision to
transport the dead bodies from Godhra to Ahmedabad. Shri
C P.C. Pande, the then CP, Ahmedabad City has stated that there
had been no parading of dead bodies inasmuch as the trucks
carrying the dead bodies under police escort reached Ahmedabad
City between 0330 hrs to 0400 hrs on 28-02-2002, which means
they had started from Godhra at least three hrs earlier and as
such there was no one to see them on the highway at dead of the
D
night, Shri Pande has also stated that in Ahmedabad City, the
dead bodies were kept in Sola Civil Hospital situated on the outskirts
of the City and that most of the dead bodies were handed over to
their relations after proper documentation by 28-02-2002 morning.
In view of the aforesaid discussions, the allegation
E that CM’s decision to bring the dead bodies of those killed
in Godhra carnage to Ahmedabad was with a view to parade
them in the City is not established. Further, the allegation
that the dead bodies were handed over to Shri Jaydeep
Patel, is also not established, inasmuch as he only
F accompanied the dead bodies from Godhra to Ahmedabad,
and that the custody of the dead bodies remained with the
police escort and thereafter with the Sola Civil Hospital
Authorities, Administrative and Police authorities. The
allegation that the dead bodies were transported to
Ahmedabad against the wishes of Smt. Jayanti Ravi is
G proved to be incorrect. Shri M.L. Nalvaya Mamalatdar had
acted in an irresponsible manner by issuing a letter in the
name Shri Jaydeep Patel in token of having handed over
the dead bodies, which were case property, is being dealt
with departmentally for this lapse……”
H (emphasis supplied)
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 181

While dealing with the allegation against the then Chief Minister A
in this regard, the final report has analyzed the same in the following
words139: -
“…..
Despatch of dead bodies to Ahmedabad:
B
The allegations as mentioned in the complaint dated
08-06-2006 of Smt. Jakia Nasim are vague and general in nature
As regard the specific allegation of the decision to take the dead
bodies of Godhra train victims to Ahmedabad, it has come in
evidence that Shri Narendra Modi attended the Assembly on
27-02-2002, when Shri Gordhan Zadafia the then MoS (Home) C
made a brief statement about the Godhra incident. The Chief
Minister also informed the Assembly that at a proposal for
an ex-gratia payment of Rs. 2 lakhs to each victim was under
consideration of the Govt. As it was a budget day, Chief
Minister attended the Assembly proceedings and left for D
Godhra thereafter. At the Godhra Collectorate, after holding
discussions, a unanimous decision was taken that the dead
bodies which had been identified should be handed over to
their relatives at Godhra itself and those bodies whose legal
heirs or guardians had not come, could be sent to Sola Civil
Hospital. Ahmedabad, since they (deceased) were E
scheduled to travel to Ahmedabad by Sabarmati Express.
It has further come to light that the decision to send the
bodies to Sola Civil Hospital was taken after taking into
account that the hospital was situated on the outskirts of
Ahmedabad City and thus away from the crowded area for F
security reasons. It has also come to light that out of 58 dead
bodies 4 bodies, belonging to Dahod, Vadodara, Panchmahal and
Anand Districts, were handed over to their legal hears guardians
after identification at Godhra itself. The remaining 54 dead bodies
were spent under police escort to Sola Civil Hospital, Ahmedabad
and Shri Jaydeep Patel of VHP accompanied them. Smt. Jayanti G
Ravi, the then Collector, Godhra has categorically denied that the
decision was taken against her wishes.

139
pages 337-338 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2 H
182 SUPREME COURT REPORTS [2022] 6 S.C.R.

A As regards the parading of dead bodies, it has come to light
that Shri M.L. Nalvaya, Mamlatdar, Godhra had issued a letter
dated 27.02.2002 addressed to Shri Jaydeep Patel, in which it
was mentioned that 54 dead bodies as per list enclosed were being
sent to Ahmedabad through five trucks whose details were given
in the said letter. It has further come to light that trucks and escorts
B
were arranged by SP, Godhra and the convoy carrying the dead
bodies left Godhra around midnight, reached Sola Civil Hospital,
Ahmedabad between 0330 hrs to 0400 hrs on 28.02.2002, and
were taken charge from Shri Jaydeep Patel by the Deputy
Collector in present of the Medical Superintendent, Police Inspector
C Sola P.S., Collector, DCP Zone-I and several other police and
administrative officials. It has further come to light that around 35
identified dead bodies were handed over to their relatives by about
1300 hrs on 28.02.2002. It has also transpired that 25 dead bodies
were that of the persons belonging to Ahmedabad, 2 of Kadi-
Mehsana, 5 of Anand, 2 of Sabarkantha and 1 of Rajkot. The
D
remaining 19 dead bodies remained unidentified and were
cremated together on 28.02.2002, by the Hospital, District
Administrative and Police Officials on the same evening after
retaining their DNA samples in Gota cremation ground nearer to
the hospital. The 12 dead bodies belonging to Ramol and Khokhra
E were taken in vehicles and cremated at Hatkeshwar cremation
ground……”
(emphasis supplied)
The thrust of the opinion formed by the SIT upon analyzing the
relevant materials in connection with this allegation is that the decision
F to carry the dead bodies from Godhra to Ahmedabad for being handed
over to their relatives, was a unanimous decision taken at the Godhra
Collectorate. This decision was taken as most of the passengers were
to travel to Ahmedabad and their relatives had not reached or were
unable to reach Godhra to collect their bodies. It was also decided that
G bodies will be carried to Sola Civil Hospital located on the outskirts of
Ahmedabad City and thus away from the crowded area for security
reasons. Most of the dead bodies (54 unclaimed at Godhra) were of
persons who were ordinarily residing in and around Ahmedabad. After
the bodies were carried to Ahmedabad hospital under police escort, 35
bodies could be identified and came to be handed over to their relatives
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 183

on 28.2.2002. The remaining 19 bodies were cremated together by police A
and the civil administration on 1.3.2002. Out of these 19 dead bodies, 12
could be identified later by DNA test. Thus, the entire exercise was
within the control and supervision of the administration and there was no
parading of dead bodies, as alleged. There was no undue haste in carrying
the bodies including cremation thereof. The essential protocol was
B
substantially followed in that respect. This opinion recorded by the SIT
in its final report is consistent with the circumstances and materials
gathered during the investigation. Suffice it to note that the allegation
under consideration is unfounded and has been rightly discarded by the
SIT.
58. The appellant had also placed emphasis on the allegations C
[No. (v)] in the complaint about the Cabinet Ministers positioning
themselves in the City Police Control Room and issuing instructions, to
buttress their argument about State sponsored violence, as stated in the
affidavit filed by Mr. R.B. Sreekumar. This allegation has been thoroughly
enquired into by the SIT and analysis of the materials can be discerned D
from pages 266 to 269140. The same reads thus: -
“…..
ALLEGATION No.V :
Cabinet Ministers I.K Jadeja and Ashok Bhat were E
positioned in the DGP office and Ahmedabad City Control
Room respectively by CM.
During the course of enquiries into this allegation Shri
R. B. Sreekumar has stated that either on 1st or 2nd March, 2002,
Shri K. Chakravarthi, had criticised the Govt. about the positioning F
of Shri I.K. Jadeja in the DGP’s office after the Godhra incident
and was feeling depressed, as the presence of Minister in his
chamber had adversely affected his supervision of the riot situation.
He also stated to have personally seen Shri I.K. Jadeja, Cabinet
Minister using the official telephone of the DGP in his chamber.
G
Shri Ashok Narayan, the then ACS (Home) has stated that
on 28-02.2002, two high level meetings were called by the Chief
Minister, one in the early morning and other late in the evening,

140
pages 266-269 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2 H
184 SUPREME COURT REPORTS [2022] 6 S.C.R.

A which were attended by him, acting Chief Secretary, DGP and
ADGP (Int.). In the meeting held in the morning, the law & order
situation was reviewed by the Chief Minister. According to Shri
Ashok Narayan, he does not recall any instructions given by the
Chief Minister to the DGP and CP, Ahmedabad that Shri Ashok
Bhatt and Shri I.K. Jadeja would sit in the Ahmedabad City Police
B
Control Room, Shahibaug and State Control Room, Gandhinagar
respectively and assist/help the police in their operation.
However, Shri K. Chakravarthi has stated that he was
informed by Shri Ashok Narayan that it was decided by the Govt.,
that Shri I.K. Jadeja would sit in DGP’s office on 28-02-2002, to
C get information about the Law & Order situation in the State, as
the State Control Room was located in his office. Shri Ashok
Narayan also informed him that Shri Ashok Bhatt would similarly
sit in the Ahmedabad City Police Control Room situated in the
office of the CP, Ahmedabad City. On this Shri K. Chakravarthi
D had told him that it would be better if the Ministers get the
information through Control Room in the Home Department as
he was bound to report all the information to the Home
Department. Thereupon, Shri Ashok Narayan informed Shri
Chakravarthi that no such facility was available in the Home
Department and therefore the Ministers would visit their offices.
E Shri Chakravarthi has further stated that Shri I.K. Jadeja visited
his office on 28-02-2002 (F.N.) and sat in his chamber for
15-20 minutes. According to Shri Chakravarthi, he could not have
much conversation with him, as he remained extremely busy with
the telephone calls being received by him from the various police
F officers. Shri Chakravarthi thereafter asked someone to shift the
Minister to an empty chamber in his office and this was done.
Shri Chakravarthi was not aware as to what Shri Jadeja did in
that room as he himself remained awfully busy with the telephone
messages and follow up actions with the prevailing bandh situation
in the State. Later, he came to know that Shri Jadeja had left his
G office. Enquiries conducted by Shri Chakravarthi with his Staff
Officer and Officer of the State Control Room revealed that there
was no interference from Shri Jadeja on the functioning of State
Control Room on that day. Shri Chakravarthi has also stated that
to the best of his knowledge, Shri Jadeja did not visit his office
H subsequently. As regard the positioning of Shri Ashok Bhatt in
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 185

Ahmedabad City Control Room, Shahibaug, Shri Chakravarthi A
denied personal knowledge and stated that CP, Ahmedabad City
would be in a better position to clarify that matter.
Shri Sanjiv Bhatt, the then DCI (Security) has claimed that
he had attended a meeting at CM’s residence at 1030 hrs on
28-02-2002 along with the DGP and ADGP (Int.). After the B
meeting, he returned to his chamber on the second floor of Police
Bhavan at about 1100 hrs and shortly thereafter went to meet the
DGP on the first floor of the same building. When he entered
DGP’s chamber he found that as instructed after the conclusion
of CM’s meeting, two Cabinet Ministers of Gujarat, namely, Shri
Ashok Bhatt and Shri I.K. Jadeja had already arrived and were C
sitting on a sofa-set in DGP’s chamber. He further stated that
Shri G.C. Raiger the then Addl. DG (Int.) and Shri Maniram, the
then ADO (Law & Order) were also present there. Shri Sanjiv
Bhatt briefed the DGP and after taking tea, he returned to his
chamber. Shortly, thereafter, Shri Sanjiv Bhatt happened to go to D
State Control Room on first floor to collect some documents and
saw Shri I.K. Jadeja and· his supporting staff sitting in the chamber
of Dy. SP. Control Room. Finding this a little odd, Shri Sanjiv
Bhatt went to DGP and informed him that it would be improper to
permit outsiders in the State Control Room and asked him whether
the Minister and his supporting staff could be shifted from the E
State Control Room. DGP agreed with his decision and thereafter,
Shri Sanjiv Bhatt again went to Control Room and requested Shri
I.K. Jadeja to accompany him as his presence in the Control Room
would hamper the smooth functioning of the State Control Room
during such a critical period, whereupon the latter got up and F
followed him. According to. Shri Sanjiv Bhatt, he took Shri Jadeja,
Minister to an empty chamber of Shri P. C. Thakur, the then IGP
and requested him to make himself comfortable and contact them
for any assistance/requirement. Shri Chaktavarthi was informed
about it. Shri Sanjiv Bhatt has also stated that subsequently he
learnt that Shri Jadeja left the Police Bhavan sometime in the G
afternoon, after having lunch. Shri Sanjiv Bhatt was not aware
about presence of Shri Jadeja in the Police Bhavan on the
subsequent days, but he recollects that the some of the supporting
staff of Shri Jadeja was seeking certain information from the State
IB on that day and on subsequent two or three days. H
186 SUPREME COURT REPORTS [2022] 6 S.C.R.

A However, this version of Shri Sanjiv Bhatt is
contradicted from the call detail records of his Govt. mobile
phone no 9825049398, which shows that on 28.02.2002, he
remained at Ahmedabad till 1057 hrs at his residence and
as such he could not have attended a meeting at CM’s
residence at 1030 hrs as claimed by him. Similarly, his claim
B
of having seen Shri I.K. Jadeja, the then Minister around
1100 hrs in DGP’s office is also falsified from the call detail
recods of his mobile phone in asmuch as he could not have
reached DGP office, Gandhinagar before 1130 hrs from his
residence in Memnagar, Ahmedabad.
C Shri I. K. Jadeja, the then Minister of Urban Housing, Roads
& Building and Capital projects has stated that on 28-02-2002,
Shri Gordhan Zadafia, the then MoS (Home) had requested him
to remain present in the DGP’s office in Police Bhavan,
Gandhinagar to see that in case any information is received in the
D Control Room about any rioting incident or request is received for
extra police force or any other issue of importance then the same
should be passed on the DGP, Home Minister etc. In view of this
request, he remained present in the office of DGP Shri
K. Chakravarthi for 3-4 hrs for next 3/4 days. However, he does
not recollect as to what work was done by him, but in case some
E information was received about some incident from the party
workers/common man, the same was passed on to the DGP for
necessary action. He has denied to have contacted/instructed any
of the police officers over telephone installed in the office of the
DGP to take action in a particular manner. He has categorically
F stated that he did not interfere with the work of the DGP or
disturb the police officers in the discharge of their official
duties. He does not remember to have used the telephone
installed in DGP’s office. He has also stated that the DGP
had not shared any information with him and therefore, he
had left the Police Bhavan within few minutes on subsequent
G occasions.
Shri P. C. Pande, the then CP, Ahmedabad City has stated
that it was incorrect to say that Shri Ashok Bhatt, the then Health
Minister was stationed at Shahibaug Control Room on 28-02-2002
to guide the police force in controlling the Law & order situation.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 187

He has further stated that Shri George Fernandes, the then Union A
Defence Minister visited Ahmedabad on 0l-03-2002 and came to
CP office to find out as to whether Army had been deployed in
the State or not. Shri Fernandes reached CP’s office around l000
or l030 hrs and asked Shri Pande about the deployment of Army,
to which latter said that they could check up from the Control
B
Room. Both of them went to the Control Room downstairs.
According to Shri Pande, Shri Ashok Bhatt, who had been waiting
for Shri Fernandes in the circuit House, also came to CP’s office
to meet Shri Fernandes and entered the Control Room Shri Pande
has also stated that Shri Fernandes and Shri Ashok Bhatt remained
in the Control Rooh1 for about ten minutes and then left CP’s C
office. According to Shri Pande, during this visit to the Control
Room, some of the press and media persons were also present
and as such it was somehow made to appear that Shri Ashok
Bhatt had come to monitor the Control Room. Finally, Shri Pande
has stated that Shri Ashok Bhatt was never deputed to Shahibaug
D
Police Control Room to guide or advise the police.
According to Shri Ashok Narayan he does not recall
instructions given by the Chief Minister, which were conveyed by
him either to the DGP or CP, Ahmedabad City to the effect that
Shri Ashok Bhatt and Shri I.K. Jadeja would sit in the Ahmedabad
City Police Control Room, Shahibaug and State Control Room, E
Gandhinagar respectively and assist/help the police.
Late Ashok Bhatt had earlier stated that he might have
visited Ahmedabad City Control Room for about 5-10 minutes on
28-02-2002. However, he has denied to have interfered with the
police work, as being a senior minister he had to maintain his F
dignity and status. Again on 01-03-2002, he admitted to have visited
the Shahibaug Control Room for about 10 minutes to meet Shri
George Fernandes, who had gone to CP’s office. The call detail
records of Govt. mobile phone no. 9825039877 of Late Ashok
Bhatt show that he returned from Godhra to Ahmedabad on G
28-02-2002, at about 05:16:51 hrs. Thereafter, the call details do
not show its location till 15:50:43 hrs on 28-02-2002, when the
location was traced to Koba Circle, Gandhinagar. During this
period, it is presumed that he was at Gandhinagar. His location on
28-02-2002 at 16:16:37 hrs to 17:47:22 hrs was shown as Shahibaug
H
188 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Kedar Tower, Ahmedabad City, which would conclusively prove
that during this period he attended CM’s press conference at Circuit
House Annexe, Shahibaug, Ahmedabad City. Thereafter, again
the location was seen at 17:59:22 hrs at Koba Circle, Gandhinagar,
which shows that he was returning to Gandhinagar. It may thus
be seen that these call details would conclusively go to established
B
that Late Ashok Bhatt did not visit Shahibaug Police Control Room
on 28-02-2002. It would not be out of place to mention here that
the matter was more than seven years old, when Late Ashok
Bhatt and others were questioned and as such the documentary
evidence is to be relied upon instead of depending upon the memory
C of the different individuals, who have given different versions.
Shri Nissar Mohammad Malik, the then PSI, who was on
duty in the Police Control Room, Ahmedabad City from
28-02-2002 at 0800 hrs to 02-03-2002 at 0800 hrs, has stated that
Shri George Fernandes, the then Union Defence Minister and
D Shri Harin Pathak, the then MoS for Defence, had come to Police
Control Room, Ahmedabad City at 1005 hrs. on 01-03-2002, and
left at 1025 hrs. He has confirmed that wireless message in this
regard to be under his signatures. He has denied knowledge about
the visit of Late Ashok Bhatt, the then Health Minister to the
Police Control Room either on 28-02-2002 or 01-03-2002.
E
Shri V.R. Patel, the then PSI has also denied the visit of
Late Ashok Bhatt, the then Health Minister to the Ahmedabad
City Police Control Room either on 28-02-2002 or 01-03-2002.
Shri Parbatsinh A. Dholetar, the then PSI, Ahmedabad City
F Police Control Room, who was on duty on 28-02-2002 from 0800
hrs to 1200 hrs and 2000 hrs to 2400 hrs, has denied the visit of
any Minister to the Police Control Room.
Shri Maganbhai M. Limbachia the then PI, who was on
duty from 0800 hrs to 2000 hrs on 01-03-2002 in State Police
G Control Room, Police Bhavan Gandhinagar, has denied the visit
of any Minister in the Control Room.
It may thus be seen that Shri K. Chakravarthi has
categorically stated that Shri I.K. Jadeja did visit his office,
but did not go to the State Control Room and he was made
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 189

to sit in an empty chamber. Shri I.K. Jadeja himself has A
confirmed that he shifted to an empty chamber near DGP’s
chamber and that DGP did not share any information with
him. Shri K. Chakravarthi, the then DGP has confirmed that
Shri Jadeja did not interfere with their work.
Shri I. K. Jadeja has taken the plea that it is an B
established practice in Gujarat State that in case of any
natural calamities or serious law & order situation the
Ministers of the various departments extend their help in
handling the crisis. No material is available to rebut his
plea. Late Ashok Bhatt had admitted earlier that he might have
visited Ahmedabad City Police Control Room on 28-02-2002 for C
a few minutes, but the call detail records of his’ official mobile
phone show his location at Shahibaug Kedar Tower between
16:16:37 and 17:47:22 on 28-02-2002, when he attended CM’s
press conference. This was conclusively proved that he did not
visit the Police Control Room on 28-02-2002. Moreover, the D
officials of Ahmedabad City Police Control Room have denied
that Late Ashok Bhatt ever visited the said Control Room either
on 28-02-2002 or 01-03-2002. In view of the aforesaid position,
it is established that Shri I.K, Jadeja did visit DGP’s office,
but did not enter the State Control Room or interfered with
the working of the police and the DGP also did not share E
any information with him. Further, it could not be established
that Late Ashok Bhatt visited Ahmedabad City Police
Control Room either on 28-02-2002 or 01-03-2002. As per
his own admission, he might have visited the Control Room
for a few minutes on 28-02-2002 and/or 01-03-2002. F
Therefore, the allegation that the two Ministers were
positioned in the State Control Room and Ahmedabad City
Police Control Room by the Chief Minister, is not fully
established Significantly, Shri I.K. Jadeja remained at State Police
headquarters for 2/3 hrs as per his own admission but did not
interfere in the police functioning. Late Ashok Bhatt’s presence G
in the City Police headquarters on the relevant day, if any, was
very negligible and it can not be termed of any material value. In
the absence of documentary/oral evidence of any directions
by those two Ministers to police officials, it can not be said
H
190 SUPREME COURT REPORTS [2022] 6 S.C.R.

A at this stage that they conspired in the perpetration of riots
or took any action for controlling the riots……”
(emphasis supplied)
Again, while dealing with the allegations in the complaint against
the then Chief Minister in this regard, the final report has noted thus 141:
B -
“…..
Presence of two Ministers at police control room:
It has been alleged that the CM took a decision to allow
C Shri Ashok Bhatt, the then Health Minister and Shri I. K. Jadeja,
the then Minister of Urban Development and Urban Housing to
sit in Ahmedabad City police Control Room and State Control
Room respectively. Shri K. Chakravarthi, the then DGP, has stated
during further investigation that Shri Ashok Narayan, ACS (Home)
D informed him that it was decided by ‘the Govt. that Shri I.K.
Jadeja, the then Minister would be in his office to secure some
information about the law & order situation in the State, as the
State Control Room is situated in DGP’s office Shri Ashok Narayan
had further informed him that Late Ashok Bhatt, another Minister,
would sit in Ahmedabad City Police Control Room. Shri
E Chakravarthi has further stated that he had his own reservations
in this matter and therefore, he advised the ACS (Home) that it
would be better, if these Ministers got the information from the
Control Room in the Home Department. However, Shri Ashok
Narayan informed him that no such facility was available with
F him in the Home Department and, therefore, the two Ministers
would come to the respective Control Rooms.
According to Shri Chakravarthi, Shri I. K. Jadeja, the then
Minister came to his office in the forenoon of 28-02-2002 and sat
in his chamber for about 15-20 minutes. Shri Chakravarthi could
not attend to him, as he was extremely busy with the telephone
G
calls being received by him from all over the State. As per his
recollection, he had asked someone to shift the Minister to an
empty chamber in his office and this was done. He has also stated

141
pages 339-341 of original copy of the final report forming part of Convenience
H Compilation of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 191

that he was not aware as to what Shri Jadeja did while he was in A
the DGP’s office as he was extremely busy with his work on that
day as rioting was taking place at many locations. Later, Shri
Chakravarthi came to know that Shri Jadeja had left his office.
Shri Chakravarthi has categorically stated that his enquiries with
the staff of the State Control Room had revealed that Shri Jadeja
B
did not interfere with the functioning of the Control Room in any
manner.
Shri P. C. Pande, the then CP, Ahmedabad City, has stated
that it was incorrect to say that Shri Ashok Bhatt, the then Health,
Minister remained stationed at Shahibaug control Room on
28-02-2002, to guide the police force in controlling the law & C
order situation. He specifically asserted that Shri Bhatt did not
visit CP’s office Control, Room on 28.02.2002. He has further
stated that Shri George Fernandes, the then Union Defence
Minister arrived at Ahmedabad on 28-02-2002 night. Shri
Fernandes reached CP’s office on 01-03-2002 around 1000 or D
1030 hrs. and asked Shri Pande about the deployment of Army, to
which the latter said that he would check up the same from the
Control Room. Both of them went to the Control Room downstairs.
According to Shri Pande, Shri Ashok Bhatt who had been waiting
for Shri Fernandes in the Circuit House, also came to CP’s office
to meet Shri Fernandes and entered the Control Room. Shri Pande E
has also stated that Shri Fernandes and Shri Ashok Bhatt remained
in the Control Room for about ten minutes and then left CP’s
office. According to Shri Pande during this to the Control Room,
some of the press and media persons were also present, and as
such it was somehow made to appear that Shri Ashok Bhatt had F
come to monitor the control Room. Finally, Shri Pande has stated
that Shri Ashok Bhatt was never deputed to Shahibaug Police
control Room to assist the Police.
According to Shri Ashok Narayan, he does not recall any
instructions given by Chief Minister, which were conveyed by G
him either to the DGP or Ahmedabad City to the effect that Shri
Ashok Bhatt and Shri I. K. Jadeja would sit in the Ahmedabad
City police Control Room, Shahibaug and state Control Room,
Gandhinagar respectively and assist/help the police.

H
192 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Shri I. K. Jadeja, the then Urban Development Minister
has stated that it was an established norm in Gujarat State that in
case of any natural calamities or serious law & order situation,
the Ministers of various departments extend their help in handling
the crisis. According to his recollection on 28-02-2002, he had
volunteered himself, if tie could be of any help in the prevalent
B
situation, to which Shri Gordhan Zadafia, the then MoS (Home)
had told him to remain present in the Police Bhavan and to see
that in case any information was received in the State Control
Room about any rioting incident and any information was received
seeking extra police force, then the same should be passed on to
C the Home Department. Consequent to these instructions he went
to DGP’s office around 1100 hrs. and stayed there for 2-3 hours.
He has gated to have interacted with the DGP and informed him
that if and when his help was required he could ask him. He has
denied to have entered the State Police Control Room and has
state that there was no question of any interference. However,
D
Shri Gordhan Zadafia, the then MoS (Home) has denied to have
any given any suggestion to Shri I.K. Jadeja. Shri Jadeja has further
stated to have visited the DGP’s office on the next one or two
days also, but stayed there for few minutes only. He has also
stated that the DGP had not shared any information with him and
E therefore, he left Police Bhavan in a few minutes on both these
occasions.
Late Ashok Bhatt had earlier stated that he might have
visited Ahmedabad City Control Room for about 5-10 minutes on
28-02-2002. However, he has denied to have interfered with the
F police work, as being, a senior minister, he had to maintain his
dignity and status. Again on 01-03-2002, he admitted to have visited
the Shahibaug Control Room for about 10 minutes to meet Shri
George Fernandes, who bad gone to CP’s office, The call detail
records of mobile phone no 9825039877 of Late Ashok Bhatt
show that he returned from Godhra to Ahmedabad on 28-02-2002,
G at about 05:16:51 hrs. Thereafter, the call details do not show his
location till 15:50:43 hrs. 0n 28-02-2002, when the location was
traced to Koba Circle, Gandhinagar. During this period, it is
presumed that he was at Gandhinagar. His location on
28-02-2002 at 16:16:37 hrs. 17:47:22 hrs. was show as Shahibaug
H Kedar Tower, Ahmedabad City, which would conclusively prove
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 193

that during this period he attended the CM’s press conference, at A
Circuit-House Annexe, Shahibaug, Ahmedabad City. Thereafter,
again the location was seen at 17:59:22 hrs. at Koba Circle,
Gandhinagar, which shows that he was returning to Gandhinagar.
These call details would go to show that he did not visit Shahibaug
Police Control Room on 28-02-2002.
B
Shri Sanjiv Bhatt, the then DCI (Security) has stated that
he had attended a meeting at the CM’s residence on 28-02-2002
morning along with the DGP and ADGP (Int.). After the meeting,
he returned to his chamber on the second floor of Police Bhavan
at about 1100 hrs. and shortly thereafter went to meet the DGP
on the first floor of the same building. According to Shri Bhatt, C
when he entered DGP’s chamber he found that as instructed after
the conclusion of CM’s meeting, two Cabinet Ministers of Gujarat,
namely, Shri Ashok Bhatt and Shri I. K. Jadeja had already arrived
and were sitting on a sofa-set in DGP’s chamber. He further
stated that Shri G.C. Raiger, the then Addl. DG (Int.) and D
Shri Maniram, the then ADG (Law & order). were also present
there. Shri Sanjiv Bhatt briefed DGP and after taking tea, he
returned to his chamber Shortly thereafter Shri Sanjiv Bhatt
happened to go to State Control Room on first floor to collect
some documents and saw Shri I. K. Jadeja and his supporting
staff sitting in the chamber of Dy. SP, Control Room. Finding this E
a little odd, Shri Sanjiv Bhatt went to DGP and informed him that
it would be improper to permit outsiders in the State Control Room
and asked him whether the Minister and his supporting staff could
be shifted from the State Control Room. DGP agreed with his
decision and thereafter, Shri Sanjiv Bhatt again went to Control F
Room and requested Shri I.K. Jadeja to accompany him as his
presence in the control Room would hamper the smooth functioning
of the state Control Room during such a critical period, whereupon
the latter got up and followed him. According to Shri Sanjiv Bhatt,
he took Shri Jadeja, Minister to the chamber of Shri P.C. Thakur
the then IGP, which was vacant at that time and requested him to G
make himself comfortable and contact them for any assistance/
requirement. Shri Chakravarthi was informed about it. Shri Sanjiv
Bhatt has also stated that subsequently he learnt that Shri Jadeja
left the Police Bhavan sometime in the afternoon, after having
H
194 SUPREME COURT REPORTS [2022] 6 S.C.R.

A lunch Shri Sanjiv Bhatt was not aware about the presence of Shri
Jadeja in the Police Bhavan on the subsequent days.
During further investigation, Shri Nissar Mohammad Malik,
the then PSI, who was on duty at the Police Control Room,
Ahmedabad City from 28.02.2002 at 0800 hrs. to 02.03.2002 at
B 0800 hrs. has stated that Shri George Fernandes the then Union
Defence Minister and Shri Haren Pathak, the then MoS for
Defence had come to Police Control Room Ahmedabad City at
1005 hrs. on 01.03.2002, and left at 1025 hrs. He has confirmed
the wireless message in this regard to be under his signatures. He
has denied knowledge about the visit of Late Ashok Bhatt, the
C then Health Minister to the Police Control Room either on
28.02.2002 or 01.03.2902. Shri V.R. Patel, the then PSI on duty in
the Police Control Room has also denied the visit of Late Ashok
Bhatt, the then Health Minister to the Ahmedabad City. Police
Control Room either on 28.02.2002 or 01.03.2002. Shri Parbatsinh
D A. Dholetar, the then PSI Ahmedabad City Police Control Room,
who was on duty on 28.02.2002 from hrs. to 1200 hrs. and 2000
hrs. to 2400 hrs. has denied the visit of any Minister to the Police
Control Room.
Shri Maganbhai M. Limbachia, the then Pl, who was on
E duty from 0800 hrs. to 2000 hrs. on 01-03-2002 in State Police
Control Room, Police Bhavan Gandhinagar, has denied the visit
of any Minister in the Control Room.
In view of the aforesaid position, is established that
Shri I. K. Jadeja did visit DGP’s office, but did not go to the
F State Control Room and he was made to sit in a vacant
chamber. Shri I. K. Jadeja himself has confirmed that he
was shifted to a vacant chamber near DGP’S chamber and,
that DGP did not Share any information with him Shri. K.
Chakravarthi, the then DGP has confirmed that Shri Jadeja
did not interfere with their work.
G
Shri I.K. Jadeja has taken the plea that it is an
established practice in Gujarat State that in case of any
natural calamities or a serious law order situation, the
Ministers of the various departments extend their help in
handling the crisis. Late Ashok Bhatt had admitted earlier
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 195

that he might have visited Ahmedabad City Police Control A
room on 28.02.2002 for a few minutes, but the call detail
records of his official mobile phone show his location at
Shahibaug Kedar Tower between 16:16:37 and 17:47:22
on 28.02.2002, when he attended CM’s press conference,
which would conclusively prove that he did not visit the
B
Police Control Room on 28.02.2002. Moreover, the officials
of Ahmedabad City Police Control Room have denied that
Late Ashok Bhatt ever visited the said Control Room either
on 28.02.2002 or 01.03.2002. It is, therefore, established
that Shri I.K. Jadeja did visit DGP’s office, but did not enter
the State Control Room or interfere with the working of C
the police and the DGP also did not share any information
with him. Further, it could not be established that late Ashok
Bhatt visited Ahmedabad City Police Control Room either
on 28.02.2002 or 01.03.2002. As per his own admission, he
might have visited the control Room for a few minutes on
D
28.02.2002 and/or 01.03.2002. Significantly, Shri I.K. Jadeja
remained at State Police headquarters for 213 hours as per
his own admission but did not interfere in the police
functioning. Late Ashok Bhatt’s presence in the City Police
headquarters on the relevant day, if any, was very negligible
and cannot be termed of any material value. E
Shri Narendra Modi has totally denied that such a
decision was taken by him. He has denied any personal
knowledge about the visit of these two Ministers to the
respective Control Rooms. It may thus be seen that both
the Ministers did visit the respective Control Rooms, but F
there is no evidence to prove that they interfered with the
law & order situation. Nor is there any evidence to indicate
that they visited the two control rooms at the direct instance
of Chief Minister. Since there is nothing to prove that these
Ministers interfered or gave any direction in maintenance
of law and order, no offence is made out. Further, in the G
absence of documentary/oral evidence of any directions by
those two Ministers to police officials, it can not be said at
this stage that they conspired in the perpetration of riots
or took any action for controlling the riots……”
(emphasis supplied) H
196 SUPREME COURT REPORTS [2022] 6 S.C.R.

A 59. The learned Amicus Curiae had recorded observations in
regard to this allegation [No. (v)], as follows: -
“

B

C

D

E

F

G

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 197

These observations have been dealt with by the SIT at pages A
434-439142, being part of Annexure-1 to this judgment. The analysis done
by the SIT after further investigation in respect of allegation under
consideration commended to the Magistrate, as well as, the High Court.
We find no reason to deviate from the said opinion or the view taken in
that regard.
B
60. It was then urged that the phone call records produced by Mr.
Rahul Sharma before the SIT on 2.7.2009 being CD containing tower
details of Ahmedabad and Godhra, the efficacy thereof has not been
reckoned in proper perspective. It would reveal the nexus between the
BJP leaders and police officers during riots. This aspect has not been
investigated by the SIT. The allegation No. (xxiii) culled out by the SIT C
in this regard has been analyzed at pages 310-312143 and again in
reference to the observations made by the learned Amicus Curiae, at
page 456144. The SIT, after investigation, eventually opined that the CDs
collected by Mr. Rahul Sharma from M/s. Cellforce were copied by him
on his personal computer kept at home and operated multiple times; and D
was unable to produce the original received from the original source
(cell company). Further, when the SIT wanted to verify the mobile phones
of suspected/accused persons, the cell companies informed that the data
was not retained/available due to efflux of time. The SIT analyzed all
the aspects in respect of this allegation as follows145: -
E
“…..
ALLEGATION No. XXIII:
The CD regarding telephone calls by BJP leaders and police
officers during riots was not probed into by the Investigating
Officers of the Naroda-Patiya and Gulberg Society cases. F
The CD was produced by Rahul Sharma, SP, CBI before
the Nanavati Commission.

142
pages 434-439 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
G
143
pages 310-312 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
144
page 456 of original copy of the final report forming part of Convenience Compilation
of respondent No. 2
145
pages 310-312 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2 H
198 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Enquiries revealed that Shri Rahul Sharma was posted as
DCP, Control Room, Ahmedabad City on 08.04.2002. On
07.05.2002, Shri Rahul Sharma had been instructed by the then
Commissioner of Police, Ahmedabad City, Shri P.C. Pande to report
to the Crime Branch, Ahmedabad City and assist the then
Additional CP, Crime Branch, Shri A.K. Surolia in the investigation
B
of serious riot-related offences. Shri Rahul Sharma was also
informed by Shri P.C. Pande that there would be no formal written
order in this regard. Accordingly, Shri Sharma reported to Shri
Surolia on the same afternoon. As a matter of prudence, he decided
to collect scientific evidence in support of the investigation that
C was undergoing. Shri Rahul Sharma has stated that he had
information about the use of mobile phones in a big way in the
alleged riots throughout the State including Ahmedabad City.
Accordingly, he drafted à letter calling for data from two mobile
phone service providers provider’s ‘Cellforce’ (now Vodafone)
and ‘AT&T’ (now Idea). The letters were issued under the
D
signature of the then ACP, Crime Branch, Shri.S.S. Chudasama,
who was also investigating the two serious cases of massacres at
Naroda Patiya and Gulberg Society. According to Shri Rahul
Sharma the information asked for, was the telephone directory of
the two mobile phone companies, calling time called/calling number,
E location of the mobile phone when they were calling/receiving the
calls, etc, for the period from 25.02.2002 to 04.03.2002 in respect
of all mobile phones operating from Ahmedabad city area. Shri
Rahul Sharma has further stated that the idea behind the collection
of this data was, amongst others, to establish the location of the
alleged perpetrators of crime and their accomplices at the time of
F
commission of the offence. Further, it was also required to prove
the contact established between the different accused persons as
also with ‘erring’ policemen, bureaucrats and politicians.
In response to the letter sent by Shri Chudasama, data was
sent in the correct format by ‘AT&T’ within a week on a CDR.
G Shri Rahul Sharma has further stated that he had personally gone
to collect the said information from AT&T from their office in
Suman Towers in Gandhinagar. The data provided by AT&T was
in the “TEXT” format and had all the relevant information that
had been asked for. Shri Rahul Sharma copied out the data
H on his computer kept at his home and the CD was returned
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 199

to Shri Chudasma. This copying was required to be done, if A
the data from the two mobile phone companies were to be
analysed together. Shri Rahul Sharma has further stated that
the data from the ‘Celforce’ was sent quite late and by that time
probably Shri A. K. Surolia had been sent on deputation to BSF
and Shri P.P. Pandey taken over as the Joint CP, Crime Branch.
B
As per the recollection of Shri Rahul Sharma, the information
from the AT&T had come, while Shri Surolia was in-charge
of the Crime Branch, but the information from ‘Celforce’
had not come during Shri Surolia’s tenure According to Shri
Rahul Sharma, the information from the ‘Celforce’ came
during Shri Pandey’s tenure as the Joint CP, Crime Branch, C
Ahmedabad City Police, but the data was sent as an MS
Access database. Since, Shri Rahul Sharma had no
knowledge of MS Access; he took the assistance of PSI
Shri K.J. Chandana, who was in the computer section of
Ahmedabad Police Commissionerate. Shri Rahul Sharma
D
has further stated that Shri Chandana used to open the files
before him in the computer kept in his office. Initially, the
data sent was not as had been requested for and the correct
data could be obtained only after several attempts. On all
these occasions, it was Shri Chandana who usually went to the
office of the ‘Celforce’ to get the correct data. E
As per Rahul Sharma, the final CDR containing the data
was not received through Shri Chandana, but was forwarded to
him by Shri P.P. Pandey through a DO Letter written in Gujarati.
In the DO letter, he had mentioned that the CDs had been prepared
under his (Rahul Sharma’s) instructions and that he alone should F
analyse the data. Shri Rahul Sharma has further stated that
‘Celforce’ had also furnished data in respect of mobile phones
operating from Godhra though the same had not been called for.
According to Shri Rahul Sharma, after a few days of the receipt
of this letter, he was transferred out and posted as the
Commandant, SRPF, Group XI, Vav, District Surat. Shri Rahul G
Sharma does not remember, whether the CDs sent by
‘Celforce’ were two in number or one in number, but given
the volume of data received from Celforce, he believes that
there should have been two CDs. Shri Rahul Sharma has
further stated that he had no knowledge of MS Access at H
200 SUPREME COURT REPORTS [2022] 6 S.C.R.

A that particular point of time, due to which he could not
analyse or interpret the contents of the CDs. However, he
has admitted to have copied the contents of the CD(s) sent
by ‘Celforce’ onto the hard disk of his personal computer
kept at home.
B Shri Rahul Sharma has further stated that after he received
his transfer orders in the first week of July, 2002, he instructed,
Shri Chandana, PSI to deliver the original CD(S) personally to
Shri P.P. Pandey. As per Shri Rahul. Sharma, Shri Chandana, PSI
visited the Jt. CP’s office a couple of times, but did not find Shri
Pandey and, therefore, he came back with the CD(s). During this
C period the CD(s) remained in the possession of Shri Chandana.
Shri Rahul Sharma has also stated that on probably the second
last day of his tenure as the DCP, Control Room, he had called a
Rider from Control Room, took the CD(s) from Shri Chandana
and directed the ‘Rider’ to hand over the CD(s) to Shri P.P.
D Pandey Further, according to Shri Rahul Sharma, the ‘Rider’
handed over the CD(s) to Shri Pandey and reported this
fact to him. Shri Rahul Sharma is not in a position to identify
the ‘Rider’ after so many years. He has also stated that at
that particular time, his PA was on leave on account of his
son’s marriage and, therefore, he could not the CD(s)
E through a formal letter.
Shri Rahul Sharma has reiterated that he never
analysed the information contained in the CDs while posted
as DCP, control Room and learnt basic MS Access only in
2004 after he joined the CBI on deputation. He has also
F stated that it was a practice in Gujarat Police to keep a copy of
Case Diaries and other important documents of cases that had
been investigated/Supervised by an officer. Consistent with this
practice, he wanted to keep a copy of the CD(s) data that had
been copied onto his home computer’s hard disk. He also wanted
G to have the data on one CD for compactness. He had, therefore,
consulted Shri Chandana is this regard and who in turn had advised
him ‘zip’ the files, so that they would be compressed. He did
accordingly and data from the CDs sent by ‘AT&T’ and
‘Celforce’ was copied on single CD, which he retained. He
burnt the information on the CD Writer installed onto his
H computer himself.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 201

Shri Rahul Sharma has also stated that he submitted copies A
of the same CD(s) containing the zipped data to the Nanavati-
Shah Commission of Inquiry (two copies) on 30-10-2004, at the
time of his deposition/cross examination and to the Banerjee
Committee (one copy) on 22-11-2004 at the time of his examination.
The original CD first prepared by him was handed over to the
B
SIT constituted by the Hon’ble Supreme Court of India.
Immediately after these CD(s) were handed over to Nanavati-
Shah Commission of inquiry and also to the Banerjee Committee,
it was widely reported in the print as well as electronic media that
Shri Rahul Sharma has produced copy of the CD(s) before the
commission as well as Committee. C
Shri Tarun Barot, the then Police Inspector, Crime Branch
Ahmedabad City and now ACP, Special Operation Group,
Ahmedabad has stated that he was entrusted with the investigation
of Naroda P.S. cr no. I98/02 relating to the death of 11 Muslims
killed in 2002 riots and that he had investigated this case from D
19-05-2002 to 30-05-2002 and subsequently with effect from
30-11-2002 to 10-04-2008. Shri Barot has further stated that during
the course of investigation, he had made an attempt to collect the
call detail records of mobile phones of suspected/accused persons,
but the Cell companies informed that the data was not available.
However, he did not approach Shri Rahul Sharma to get the call E
details as he did not know that the latter was in the possession of
the call details of all the numbers operating from Ahmedabad City
during the riots period and no one had told him about it. According
to Shri Barot, he did not know whether Shri Rahul Sharma, SP
had handed over a copy of the CDs to Nanavati-Shah Commission F
of Inquiry or Banerjee Committee appointed by the Railways to
enquire into the Godhra incident. Shri Barot has also stated that a
news item had appeared in an English daily regarding the mobile
phone details of Maya Kodnani and Jaydeep Patel and on the
basis of the said news item, both of them were summoned and
interrogated about their location on 28-02-2002 and thereafter. G
Both Mayaben Kodnani and Jaydeep Patel informed that they
were present at Sola Civil Hospital. Shri Mayaben Kodnani
confirmed that her mobile phone remained in her possession,
whereas Jaydeep Patel claimed that his mobile was left in his car,
which was taken away by his driver. Shri Barot has also stated H
202 SUPREME COURT REPORTS [2022] 6 S.C.R.

A that efforts were made to get their call details from the mobile
service providers, but the same were not provided and as such
the call details could not be obtained, analysed and cross checked.
The plea put forward by Shri Barot is not convincing
inasmuch as the news about the production of the CDs
containing call detail records of mobile phones at
B
Ahmedabad City by Shri Rahul Sharma before the
Commission had appeared in almost all the newspapers and
therefore it is difficult to believe that Shri Barot did not
come to know about it.
Shri GL. Singhal, SP, ATS, who remained the IO of Gulberg
C Society case and Naroda Patiya case, has stated that he did not
investigate into the call details records of the mobile phones as
well as landline details of the accused persons or any other person
connected with these cases. He has admitted that he came to
know about the production of the CDs containing the call details
D of the various calls made/received from the mobile phones
Ahmedabad City by Shri Rahul Sharma before the Nanavati-Shah
Commission of Inquiry and Banerjee Committee, but did not
approach him to get the copies of CDs containing the CDRs of
mobile phones. He has further admitted that he did not approach
the cell phone service providers to get the call detail records of
E the cell phones operating from Ahmedabad City from 27-02-2002
onwards. He has stated to have interrogated Dr. Mayaben
Kodnani, MLA and Jaydeep Patel, a VHP activist in Naroda Patiya
case about their locations on 28-02-2002, but they had denied
their presence on the spot at the time of incident. He has also
F stated that he could not confront them with their call details, as
the same were not available with him.
This appears to be an intentional lapse on the part of
Shri Tarn Barot, the then PI and now ACP, SOG, Ahmedabad and
Shri G.L. Singhal, the then ACP, Crime Branch and now SP, ATS,
G Ahmedabad and the same deserves to be dealt with major penalty
departmental proceedings against them. However, no criminal
offence is made out against them……”
(emphasis supplied)
In other words, the SIT due to lapse of time, was not in a position
H to verify the authenticity of the CDs regarding telephone calls produced
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 203

by Mr. Rahul Sharma and in any case, the call history by itself would not A
have been sufficient to suspect commission of any offence, much less
of hatching larger criminal conspiracy, which was required to be
investigated by the SIT. The opinion formed by the SIT on the basis of
available materials collected during investigation commended to the
Magistrate, as well as, the High Court. That view needs no departure.
B
61. In other words, there is no merit in the argument of the appellant
that the SIT had failed to collect the call records of the accused persons,
not analyzed the available call records from CD supplied by Mr. Rahul
Sharma and failed to seize the phones of persons involved. In that, the
events had unfolded in the year 2002 and the SIT was constituted only in
the year 2008 by this Court to look into and enquire into the complaint of C
appellant, dated 8.6.2006. During the contemporary period (year 2002),
two mobile operators were providing services in the Gujarat State, namely,
M/s. AT&T and M/s. Cellforce, who had the protocol of maintaining the
electronic call records for one year only146. This fact has been noted in
the statement of Mr. Viraf Fanibanda – Head Legal Advisor, Idea Cellular D
and of Mr. Dhiren Jayantilal Laria – Legal department, Vodafone,
recorded by SIT on 28.11.2008. These statements, though crucial, have
not been adverted to by the appellant. Resultantly, it was not possible for
the SIT to retrieve the call records from these service providers after its
appointment in the year 2008. It is, therefore, not a case of failure of the
SIT to collect the call detail records of various persons referred to in the E
details discernible from the record submitted by Mr. Rahul Sharma.
62. Insofar as the CD record submitted by Mr. Rahul Sharma, as
aforesaid, he had failed to handover the case property to the investigating
officer (of Naroda police station), dealing with the concerned case nor
got it entered in the register of case property (Muddamal) or informed F
the Court of jurisdiction about seizure of such case property. He had
instead produced the CD on 31.5.2008, which came to be seized by the
investigating officer and taken as evidence. These two CDs were collected
by the investigating officer from the records of Nanavati-Shah
Commission of Enquiry. Mr. Rahul Sharma had submitted the same before G
the Commission. Additionally, one CD containing the same information
146
‘License Agreement for Provision of Unified Access Services’ provide as under:
“The LICENSEE shall maintain all commercial records with regard to the
communications exchanged on the network. Such records shall be archived for
at least one year for scrutiny by the Licensor for security reasons and may be
destroyed thereafter unless directed otherwise by the licensor.” H
204 SUPREME COURT REPORTS [2022] 6 S.C.R.

A was submitted by Mr. Amresh Bhai N. Patel, Jansangharsh Manch,
which was obtained by him from the Commission of Enquiry. That was
also produced before the investigating officer. In absence of the original
CDs which were never produced by Mr. Rahul Sharma, it was not
possible for the SIT to obtain the certificate of authenticity under Section
65B of the Indian Evidence Act, 1872 and at the same time, it had been
B
noticed that the CDs were copied by Mr. Rahul Sharma in his computer
and format changed, by changing it in Zipped format. The SIT has
analyzed all these aspects and opined that MD5 Hash value of the files
in all the three CDs was found same. Further, the files containing call
detail records or fragments of the files could not be found on the computer
C storage media. Moreover, due to lapse of time, no fruitful purpose would
have been served in seizing the mobile phone of the concerned user
after seven years to undertake roving enquiry. All these aspects have
been duly considered by the SIT while dealing with allegation No. (xxiii)
as reproduced hitherto, in paragraph No. 60. The opinion so recorded by
the SIT commended to the Magistrate, as well as, the High Court. We
D
find no reason to deviate therefrom.
63. Needless to underscore that every information coming to the
investigating agency must be regarded as relevant. However, the
investigating agency is expected to make enquiries regarding the
authenticity of such information and after doing so must collect
E corroborative evidence in support thereof. In absence of corroborative
evidence, it would be merely a case of suspicion and not pass the muster
of grave suspicion, which is the pre-requisite for sending the suspect for
trial. This is the mandate in Section 173(2)(i)(d) of the Code, which
postulates that the investigating officer in his report must indicate whether
F any offence appears to have been committed and if so, by whom. The
opinion of the investigating officer formed on the basis of materials
collected during the investigation/enquiry must be given due weightage.
That would only be the threshold, to facilitate the concerned Court to
take cognizance of the crime and then frame charge if it is of the opinion
that there is ground for presuming that the accused has committed an
G offence triable under Chapter XIX of the Code.
64. The appellant had also alleged about police inaction which
facilitated riots as part of conspiracy giving specific instances in that
regard. The SIT has considered this allegation being allegation No.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 205

(xxv) 147, and upon analyzing the materials gathered during the A
investigation, opined that the circumstances highlighted by the appellant
were not sufficient link to infer that the named persons had hatched
larger conspiracy to cause mass violence across the State targeting the
minority community. On closer scrutiny of the analysis in this regard, the
opinion of the SIT is a plausible opinion. For, the instances adverted to
B
are essentially matters concerning the acts of commission and omission
at the ground level and not indicative of any link to sustain the allegations
of larger criminal conspiracy. As noted earlier, the erring officials identified
for their acts of commission and omission at the ground/local level have
been proceeded with departmentally. Every act of commission and
omission would not result in hatching criminal conspiracy unless the acts C
have been done deliberately and there is meeting of minds of all
concerned.
65. Similarly, the allegation that victims of riots and police firings
was predominantly of the Muslim community, has been dealt with as
allegation No. (xxx)148, while noting that the incident referred to unfolded D
on 28.2.2002, wherein 17 persons were killed in police firing in
Ahmedabad City, which included 11 Hindus and 6 belonging to minority
community. Further, police firing was required because of the evolving
situation and out of compulsion to control the situation. This is observed
at page 329 as follows: -
E
“….. During enquiries, Shri P.C. Pande, formerly CP, Ahmedabad
City has stated that during the riots, it is difficult for the police to
identify as to whether any individual belongs to a particular
community. He has further stated that on 28-02-2002, 17 persons
were killed in police firing in Ahmedabad City, which included 11
Hindus and 6 Muslims, which would go to show that there was no F
discrimination on the part of police. He has also stated that in the
succeeding days, the retaliation started from the Muslim side also
and therefore, wherever force was used by the police casualties
resulted on both the sides. According to Shri Pande, it is incorrect
to say that the administration and police were moving in G
collaboration with the rioters and were targeting the persons from

147
pages 320-325 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
148
page 329 of original copy of the final report forming part of Convenience Compilation
of respondent No. 2 H
206 SUPREME COURT REPORTS [2022] 6 S.C.R.

A the minority community with an intention to achieve the alleged
objective of CM. In view of the aforesaid position, the allegation
is not established……”
66. Even the allegation regarding nepotism practiced in postings,
transfers, promotions etc. facilitating the ongoing subversion of the
B criminal justice system has been rightly discarded as vague and without
any specific instances. That allegation is noted in paragraph 85 of the
complaint dated 8.6.2006.
67. Be it noted that the SIT was constituted by this Court to
investigate into the allegations providing specific inputs/information
C indicative of commission of offence of larger criminal conspiracy and
involvement of concerned person in executing such crime. The SIT was
not there to generally enquire into administrative matters of the State,
such as posting, transfers and promotions unless specific input is set
forth or was to be brought to the notice of the SIT.

D 68. Suffice it to note that absent clear and direct material indicative
of involvement of named person(s) in hatching criminal conspiracy to
cause mass violence across the State targeting minority community during
the relevant period, the attempt of the appellant, if we may say so, is
bordering on sewing of insignificant unconnected circumstances and
events regarding the failures and in some cases, laxity in administration,
E which is being projected as an act of concerted effort of all the State
officials upto the highest level without there being any tittle of material
to show that there was meeting of minds of all these persons at some
level.
69. The appellant had gone to the extent of attributing motives in
F relation to transfer of officers from field executive in the thick of riots
despite the objections of concerned DGP. In place of such able officers,
posting was done of officials who were willing to subvert the system for
political and electoral benefits. This allegation has been duly enquired
into by the SIT being allegation No. (vi) and dealt with in the following
G words149: -

149
pages 269-271 of original copy of the final report forming part of Convenience
H Compilation of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 207

“….. A
ALLEGATION NO. VI:
Officers from field executive posts were transferred (by
CM), in the thick of riots in 2002, despite DGP’s objection
so as to facilitate placement of those who were willing to
subvert the system for political and electoral benefits as B
narrated in Para 67 of the complaint dated 08.06.2006,
wherein instances of punishment, ill-treatment etc. are
listed in respect of the following officers: (1) Shri Rahul
Sharma, IPS, (2) Shri Vivek Shrivastava, IPS, (3) Shri
Himanshu Bhatt, IPS, (4) Shri M.D. Antani, IPS, (4) Shri C
R.B. Sreekumar, IPS and (6) Shri Satishchandra Verma, IPS.
This allegation relates to instances relating to punishment,
ill-treatment etc. to the various police officers, who were
transferred from the field executive posts in the thick of riots in
2002 so as to facilitate the placement of those, who were willing D
to subvert the system for political and electoral benefits.
Shri Rahul Sharma, who had been posted as SP, Bhavnagar
on 16-02-2002, has stated that on 27-02-2002, he was on leave
and after having come to know about the Godhra train carnage,
rushed to Bhavnagar and reached there in the evening of E
27-02-2002. He has further stated that on 01-03-2002, permission
was granted to Sadhu-Samaj by District Administration to take
out a procession and after the rally started at 1710 hrs, the riot
broke out in Bhavnagar City and the mob had started gathering at
different places in Bhavnagar City. Further, one Kishor Bhatt,
President of Shiv-Sena, Bhavnagar Branch was arrested by the F
police and thereafter, some reports of stone pelting, arson and
rioting had come in and curfew was imposed by the District
Collector at his request. He has also stated that Bhavnagar police
had succeeded in controlling the communal riots by the evening
of 02-03-2002. Shri Rahul Sharma has stated that Shri Gordhan G
Zadafia spoke to him over phone on 16-03-2002 and informed
him that he had done a good job in controlling the communal riots,
but the ratio of deaths, as a result of police firing in the riots was
not proper, i.e., more number of deaths of Hindus than Muslims.
Shri Rahul Sharma has also stated that on 23-03-2002, a mosque
was attacked by a riotous mob following which 21 persons were H
208 SUPREME COURT REPORTS [2022] 6 S.C.R.

A arrested and that he was pressurised by the local leaders to release
them, to which he did not agree. As a result, of he had difference
of opinion with the Collector, IGP, Junagadh Range and DGP.
Shri Rahul Sharma was transferred as DCP, Control Room,
Ahmedabad City and he was relieved from the charge of post of
SP, Bhavnagar from 26-03-2002. However, Shri Rahul Sharma
B
has stated that he would not be able to comment on the
circumstances that led to his transfer from Bhavnagar to
Ahmedabad City as transfer/posting is the prerogative of the Govt.
Shri Vivek Srivastava has stated that he remained posted
as SP, Kutch during January, 2001 to March, 2002. He has further
C stated that as a mark of protest against the Godhra carnage, VHP
had given a call for Gujarat Bandh and had taken out a rally in
Bhuj town on 28-02-2002, for which adequate arrangements had
been made, as a result of which there was no untoward incident
in the entire District and no killings were reported from anywhere
D in the District. According to Shri Vivek Srivastava, a few days
after the Godhra incident, a Muslim family had been assaulted
with sharp edged weapons at a Dargah out side Nakhatrana town
by some unknown miscreants, causing injury to two persons.
Further, according to Shri Vivek Srivastava, a case u/s 307 IPC
was registered and one Home-Guard Commandant with BJP
E leanings of Kutch District had been arrested and charge sheeted
on completion of investigation. Shri Vivek Srivastava has also
stated that he got a few phone calls from the office of Home
Minister and Chief Minister asking him about the details of the
case and also as to whether there was adequate evidence against
F all the accused to which he confirmed that sufficient evidence
was available against all the accused persons for effecting their
arrest. Shri Vivek Srivastava was transferred in the last week of
March, 2002 and posted as Deputy Commissioner, Prohibition &
Excise, Ahmedabad Zone. However, Shri Vivek Srivastava was
unwilling to comment upon the reasons, as according to him,
G transfers were the prerogative of the Govt.
Shri M.D. Antani, who remained posted as SP, Bharuch
during 10-08-2000 to 26-03-2002, has stated that keeping in view
that Baruch was a communally sensitive District with 27% Muslim
population, adequate police arrangements were made pursuant to
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 209

the Godhra carnage incident. According to Shri Antani, from A
28-02-2002 onwards, incidents were reported only in respect of
Bharuch town, Ankleshwar and Raj-Pardi areas, whereas Palej,
Amod, Kavi, Vedach, Nabipur, Hansot and Bharuch Talukas were
almost ventless. In all two Muslims had died during the riots,
whereas three Muslims were killed in police firing on 19-03-2002.
B
He was transferred on 26-03-2002, as SP, Narmada and was
relieved on the same day. However, Shri Antani has stated that
he can not comment on the allegation of any motive for his transfer.
Shri Satish Chandra Verma was posted as DIG, Border
Range with headquarters at Kutch-Bhuj during the period
2003-2005, which has three Districts including Patan. At that time C
one Shri Shankar Chaudhary was the sitting MLA of BJP from
Radhanpur Assembly constituency. Shri Verma has stated that a
criminal case had been registered in Radhanpur P.S. in the context
of rioting between Hindu and Muslim crowds after the Godhra
carnage on 27-02-2002, in which two Muslims had reportedly died D
due to police firing. However, it was brought to his notice that the
death of these two Muslims by police firing was not substantiated
by available evidence and instead evidence was available against
private individuals including Shri Shankar Chaudhary, MLA for
committing acts, which led to the death of these persons. Shri S.
C. Verma has further stated that he had issued a formal order for E
the arrest of Shri Shankar Chaudhary, MLA for murder and attempt
to murder. Shri Verma has also stated that sometime later, he was
transferred as Principal State Reserve Police Training Centre,
Chawky, Junagadh, However, Shri Verma has stated that he can
not say that this transfer was a consequence of this aforesaid F
order. He has also stated that he can not call the post of Principal
of a training institution unimportant. Shri Verma has further clarified
that the scrutiny of the evidence by him in the aforesaid criminal
case was not a part of scrutiny of 2000 odd cases entrusted to the
DGP by the Hon’ble Supreme Court of India. Shri Verma has
further stated that it was not true that the post of Principal, SRRTC G
had been upgraded from SP to DIG to post him there and that this
post had been encadred before his posting there as a DIG level
post.

H
210 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Shri. R. B. Sreekumar has stated before the SIT that he
remained posted as Addl. DG (Int.) during 09-04-2002 to
18-09-2002 He has further stated that during this period, he had
sent reports against Sangh-Pariwar supporters, about the prejudice
of the Govt officials against the Muslims and the general subversion
of the Criminal Justice System, to the Govt. and DGP. He has
B
further stated that in his first affidavit filed before Nanavati-Shah
Commission of inquiry, he had pointed out that the State IB had
informed the State Govt. about the likely repercussions of Godhra
incident and measures to be initiated by the field officers, but on
account of pressure from the ruling party and some higher officers,
C no steps were taken to control the emerging communal situation
as detailed in Gujarat police Manual and that this paved the way
for the violence from the Hindu mob against the Muslims. He had
also stated in his affidavit that the imposition of curfew was delayed
on 28-02-2002, till 1300 & 1400 hrs in Ahmedabad City to facilitate
the parading of dead bodies of Godhra victims. Shri R. B.
D
Sreekumar had also submitted his second affidavit on 06-10-2004,
covering the additional terms of Nanavati-Shah Commission, in
which he had pointed out the subversion of criminal justice system
against the Muslims and specific suggestions to remedy the
situation, but the Govt. did not take follow up action on the
E suggestions made by him in his assessment reports dated
24-04-2002, 15-06-2002, 20-08-2002 & 28-08-2002. Shri R. B.
Sreekumar has further stated that he had filed a third affidavit on
09-04-2005, presenting the data on his harassment and victimization
on account of his non compliance of intimidator briefing by State
Home Department official, who had asked him to look after the
F
political interests of the Govt. Shri R. B. Sreekumar has also stated
that after a charge sheet was served upon him on 06-09-2005,
questioning his revelations before the Nanavati Commission, he
filed a fourth affidavit before the Nanavati Commission on
27-10-2005. Shri R.B. Sreekumar has further contended that he
G was superseded in promotion because of the aforesaid acts and
thus victimized by the Govt. He has also stated that he had been
exonerated of all nine charges served upon him by the Central
Administrative Tribunal, Ahmedabad on 28-09-2007 and that the
State Govt., sought a stay on the operation of the CAT’s order
from Gujarat High Court, which was rejected and that the Hon’ble
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 211

High Court had ordered for the expeditious release of regular A
pension to him and also grant of promotion from the date of his
supersession i.e. 23-02-2005. The State Govt. had complied with
the High Court directive and issued orders on 02-05-2008.
The statements of Shri Rahul Sharma, the then SP,
Bhavnagar, Shri Vivek Srivastava, the then SP, Kutch, Shri M. D. B
Antani, the then SP, Bharuch and Shri S. C. Verma, the then DIG,
Border Range, Kutchch-Bhuj before the SIT would go to show
that though their transfers were immediately after certain events
in their jurisdiction, yet according to them postings/transfers being
the prerogative of the Govt., the same can not be linked to certain
events that took place immediately before their transfers. Shri S. C
C. Verma has pointed out that the post of Principal of a training
institution could not be said to be unimportant. He has further
clarified that the scrutiny of the allegation in a murder case of two
Muslims was not a part of scrutiny of 2000 odd cases entrusted to
the DGP by the Hon’ble Supreme Court of India. Shri Verma has D
also clarified that the post of Principal, SRPTC had been upgraded
before his posting there.
The testimony of Shri R.B. Sreekumar is motivated inasmuch
as he had started collecting data/evidence during posting as Addl.
DG (Int.). Even subsequently, he clandestinely recorded his E
conversation with Shri G.C. Murmu, Home Secretary and Shri
Arvind Pandya, Govt. Advocate before the Commission with a
view to level the allegation of pressure tactics against him. He
had also recorded his conversation with Shri Dinesh Kapadia, an
under Secretary, Budget and Co-ordination in the Home
Department to be utilized subsequently, as evidence against the F
Govt. Surprisingly, he kept all these things a well guarded secret
till he was superseded in promotion in February, 2005 and made it
public in his third affidavit filed before the Commission on
09-04-2005. All these actions on the part of Shri R.B. Sreekumar
therefore, appear to be motivated. In view of this, the credibility G
of his oral testimony has also been considerably reduced because
the same stands uncorroborated. On account of the aforesaid
factors, this allegation therefore, is not established……”
70. Concededly, the act of transfer/posting of officials has been
after the unfolding of mass violence across the State. It was obviously H
212 SUPREME COURT REPORTS [2022] 6 S.C.R.

A an administrative matter to address the expediencies of that situation.
We fail to understand as to how this circumstance can be reckoned as
hatching of criminal conspiracy resulting into mass scale violence across
the State aftermath Godhra incident. Such conspiracy ought to have
preceded the triggering of mass violence. Be that as it may, the SIT has
done everything possible to look into each allegation noted in the complaint
B
dated 8.6.2006 and after collating relevant materials, have formed its
opinion, not only allegation-wise, but also offender-wise and witness-
wise including to deal with the observations noted by the learned Amicus
Curiae.
71. To the same end, it was alleged [being allegation No. (xvi)]
C that the officers at the grassroot level were not transferred as per SIB’s
recommendations till the arrival of Mr. K.P.S. Gill as Advisor to the
Chief Minister, as stated by Mr. R.B. Sreekumar in his second affidavit
dated 6.10.2004 submitted to the Nanavati-Shah Commission. Even this
allegation has been dealt with by the SIT in the following words 150: -
D “…..
ALLEGATION No. XVI:
Officers at grass-root level were not transferred as
per State Intelligence Bureau’s recommendation till the
E arrival of Shri K.P.S. Gill as Advisor to CM, as indicated by
Sreekumar in his second affidavit dated 06.10.2004 to the
Nanavati Commission.
Shri R. B. Sreekumar has stated that after taking over
as Addl. DG (Int.) on 09-04-2002, he had sent an analytical
F note on the Current Communal Scenario in Ahmedabad City
on 24-04-2002, to Shri Ashok Narayan, the then ACS
(Home) with a copy to Shri K. Chakravarthi, the then DGP.
In this report, Shri Sreekumar has stated that repeated and strong
media attack on Ahmedabad police had a demoralising impact on
the confidence and dedication of the city police personnel. He
G has further stated that many senior police officers at the decision
taking level, i.e. Inspectors in charge of the City police stations
had ignored the specific instructions from the official hierarchy
on account of their getting direct verbal instructions from the senior
150
pages 297-298 of original copy of the final report forming part of Convenience
H Compilation of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 213

political leaders of the ruling party. According to Shri Sreekumar, A
such officers had become adept in the art of deceptive law
enforcement for the benefit of their Political masters and friends,
who ensured their placement and continuance in their choicest
executive posts at the cost of the spirit and letter of the law of the
land.
B
In this report Shri Sreekumar had suggested amongst other
remedial measures, the replacement of the present incumbents
from executive posts at the cutting edge level from those cities
and districts, where police either remained inactive during the riots
or played a collaborative role with the rioters. Shri Sreekumar
also suggested that for deterrent, effect, police functionaries, who C
had played collaborative and participatory roles during the riots
should be given statutory punishment.
Shri Sreekumar has further stated that on 04-05-2002, Shri
K. P. S. Gill, former DGP of Punjab State, who had been deputed
as an Adviser to the Chief Minister, Gujarat on Law & Order D
matter, convened a meeting of senior police officers in his camp
at CRPF group centre, Gandhinagar. Shri K. Chakravarthi, Shri
P. C. Pande, Shri R. B. Sreekumar, Shri Maniram, and Shri M. K.
Tandon, attended the meeting. As instructed by Shri Gill each
officer gave his assessment of the current situation. Both, DGP E
and CP, Ahmedabad city observed that the situation was normal
due to effective police, measures. Shri Sreekumar has further
stated that Shri Maniram, who was responsible for maintaining
Law & Order in the state, totally disagreed with the assessment
given by DGP. And CP, Ahmedabad City. According to the
statement made by Shri Maniram before the SIT, he had informed F
informed Shri K. P. S. Gill that the tension continued to prevail in
Ahmedabad city amongst the Hindus and Muslims and the officers,
who were responsible for not preventing the riots resulting in loss
of life and property in their jurisdiction should be transferred
immediately irrespective of their status and good officers posted G
in their place. Shri Maniram also stated to have mentioned to Shri
Gill that wherever effective officers had been posted, the Law &
Order situation was under control like, Saurashtra and South
Gujarat. In this meeting, Shri R. B. Sreekumar had fully endorsed
the views of his Shri Maniram, Shri Sreekumar also handed over
H
214 SUPREME COURT REPORTS [2022] 6 S.C.R.

A a copy of his report sent vide letter dated 24-04-2002 to Shri Gill
and had also prepared a separate note at the instance of Shri Gill.
According to Shri Sreekumar, Shri K. P. S. Gill had called him on
08-05-2002, and informed that the suggestions and remedial
measures indicated in his (Sreekumar’s) note here quite relevant
and that soon most of the officers at the decision making levels in
B
Ahmedabad City would be transferred and a new team of officers
positioned.
Shri K. Chakravarthi has stated that during initial
discussions with Shri K.P.S. Gill he along with Shri Ashok
Narayan were given to understand that CM wanted to
C transfer the senior officers of Ahmedabad City and wanted
alternate proposal. Shri Chakravarthi had accordingly given
his suggestion to Shri Ashok Narayan, who prepared a note
and submitted the same to the Chief Minister for his
approval. According to Shri Chakravarthi, Shri K.P.S. Gill
D had asked him about his views on these transfers, to which
Shri Chakravarthi informed him that he had given these
suggestions. Shri Chakravarthi has further stated that this
note was approved by the Chief Minister and the transfers
came into force in the end of first week of May, 2002. Shri
Chakravarthi has also stated that the matter relating to the
E shifting of jurisdictional officers was already under
consideration and it was not taken up at the instance of
either Shri Maniram or Shri RB. Sreekumar.
In view of this, the allegation of Shri Sreekumar that
the transfers of the jurisdictional officers as suggested by
F State IB on 24-04-2002, were not carried out till the arrival
of Shri K.P.S Gill, an Adviser to CM, is therefore, without
any basis……”
(emphasis supplied)

G This analysis has been criticized amongst others on the ground
that Mr. K.P.S. Gill has not been examined by the SIT. Non-examination
of Mr. K.P.S. Gill by the SIT can have no adverse impact on the otherwise
well-considered opinion arrived at by the SIT in the final report on this
aspect. In any case, not translating the recommendation of SIB (dated
24.4.2002) into transfer order until end of first week of May, 2002, does
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 215

not provide any direct link regarding the allegation of hatching larger A
criminal conspiracy at the highest level for causing or precipitating the
violence across the State from February, 2002 onwards. Viewed thus,
no fault can be found with the opinion of the SIT that the transfers of the
jurisdictional officer, as suggested by the SIB, were not carried out till
the arrival of Mr. K.P.S. Gill, Advisor to the Chief Minister, is of no avail.
B
The opinion of the SIT in this regard is a plausible view and had rightly
commended to the Magistrate, as well as, the High Court.
72. That takes us to the other allegation, more or less of the same
type being allegation No. (vii), namely, senior officers were awarded
with undue benefits for collaborating with the illegal plans of CM/BJP
during 2002 riots and afterwards. This has been found to be a far-fetched C
and unfounded allegation by the SIT, after analyzing the relevant materials
on record including the statements of the concerned officials151, dealing
with the case of each officer as named in paragraph 68 of the complaint.
Even this opinion of the SIT needs no second look also for the reason
that such an act would not be a link to connect the act of hatching of D
criminal conspiracy resulting in mass violence across the State.
73. Argument was also advanced in reference to allegation No.
(xv) that pro-VHP Advocates were appointed as public prosecutors in
riots cases. This has been thoroughly examined by the SIT in the following
words152: - E
“…..
ALLEGATION No. XV:
Pro-VHP advocates were appointed as Public
Prosecutors in riot cases as noted in Para 4 under the F
caption ‘Present Situation’ in the complaint dated
08.06.2006, wherein appointments of advocates Shri Chetan
Shah (as District Government Pleader), Shri V.P. Atre (as
Special PP in the Gulberg case), Shri Raghuvir Pandya (as
Special PP in the Best Bakery case), Shri Dilip Trivedi (as
Special PP in the Sardarpura case), Shri Rajendra Darji (as G

151
pages 271-280 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
152
pages 294-296 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2 H
216 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Special PP in the Dipda Darvaja case), Shri Piyush Gandhi
(PP in Panchmahal District), have been questioned).
Enquiries revealed that the procedure for the
appointment of a Public Prosecutor in a town is that the
vacancy is notified by the collector & District Magistrate
B in the local news papers. In response to the advertisement
a number of eligible candidates are interviewed by a Board
comprising Principal Sessions Judge and District
Magistrate. Thereafter, a panel of three or four advocates
selected by the Board is forwarded to the Govt. for the
appointment of the Public Prosecutor. The Govt. exercises
C its own discretion, select and notify one of the empanelled
candidates as a public Prosecutor for a period of three years.
It may thus be seen though the selection procedure is
transparent yet the Govt. has got the discretion to appoint
a particular lawyer out of the panel of 3-4 advocates
D forwarded to them.
Enquiries further revealed that Shri Chetan K. Shah
remained a Member of Vishwa Hindu Parishad during 1990 to
1995. However, at present he is neither a member of BJP nor any
of the Sangh Parivar organisations. It has further come to light
E that on 12-07-1986, seven or nine members of Muslim Parivar
were allegedly burnt alive in Meghaninagar area during the riots
in 1986. A case in this regard was registered in Shahibaug P.S.
Shri Chetan K. Shah was not a FIR named accused in this case,
but was arraigned as an accused during the course of investigation
and charge sheet filed against him. After the committal proceedings
F this case was registered as terrorist case no. 1/87 before the
Hon’ble Special Court, Ahmedabad City. Shri Chetan K. Shah
was charged under TADA and other rioting offences. However,
he was not arrested and instead granted anticipatory bail and
subsequently regular bail also. On his request to the BAR
G Association, Shri Chetan Shah was defended by Shri H.M. Dhruv
and Shri J.M. Panchal, Shri J.M. Panchal, Sr. Advocates. After
trial, Shri Chetan Shah was acquitted of all the charges.
Shri Chetan K. selected as a Public Prosecutor, as per laid
down appointed as such on 17-06-2003 for a period of three years
H Before his appointment as PP, Shri Shah, had defended some of
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 217

the accused persons of the Gulberg Society case Some of them A
had been released on bail during that period and Shri Shah, had
represented them. Further, as a Public Prosecutor of City Sessions
Court, he had 15 Additional Public Prosecutors, who used to work
in different courts as per duties allotted by Shri Chetan K. Shah.
One Shri V. P. Atre, Additional Public Prosecutor had been
B
appointed as Special PP to conduct case no 67/2002 of
Meghaninagar P.S. on 06-10-2003. It has further come to light
that this was a special assignment given to Shri Atre by the Govt.
of Gujarat directly and he was not junior or subordinate to Shri
Chetan K. Shah. In Gulberg Society case, none of the accused
persons were released on bail after Shri V. P. Atre took over as C
Spl. PP. However, the accused persons were released on bail by
the Gujarat High court at different stages. Shri Chetan K. Shah
did not appear as a Public Prosecutor in any of the riot cases
pending in City Sessions Court, Ahmedabad City. He could not
have appeared as a Public Prosecutor in Gulberg Society case as
D
he had already appeared in this case from the defence side. Shri
Chetan K. Shah has denied that he had been appointed as a Public
prosecutor because of his VHP background or being a sympathizer
of the ruling party or Sangh Parivar. The three year term of Shri
Chetan K. Shah had expired in June, 2006 and was not extended.
Shri Chetan K. shah has denied knowledge that Shri V. P. Atre E
had been appointed as a Spl. PP after a protest had been lodged
by the eyewitnesses of the Gulberg Society case regarding his
(Shri Shah’s) appointment. Both, Shri Chetan K. Shah and Shri
Atre have denied that the latter worked under the former.
Shri H M. Dhruv, Sr. Advocate has corroborated the version F
of Shri Chetan K. Shah and has confirmed to have defended Shri
Chetan K. Shah in a TADA case jointly with Shri J.M. Panchal,
Sr. Advocate, which ended in acquittal. He has further stated that
he had been appointed as Spl. PP to conduct the cases arising out
of Meghaninagar P.S. C R No. 67/2002 and Naroda P. S. CR No.
100/2002 on 05-03-2009 and Shri Amit Patel, Advocate was G
appointed to assist him in the trial. However, Shri H. M. Dhruv
did not appear in any of these cases on any of the dates as new
Public Prosecutors were appointed by the Govt. of Gujarat on the
recommendations of SIT.
H
218 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Enquiries further revealed that Shri Raghuvir N. Pandya
had started his practice in District & Sessions Court, Vadodara in
the year 1986 on Civil and criminal side. In the year 1997, he was
appointed as Addl. PP in District & Sessions Court. Further, during
the period 2000-2002, he worked as a incharge Public Prosecutor
Vadodara District. He was appointed as a District Govt. Pleader
B
in District Sessions Court, Vadodara in 2002 and worked there till
2008. He has denied any direct connection with BJP, Bajrang
Dal, RSS or any of the Sangh Parivar organisations, but has
admitted to have contested corporation elections from ward no.
20, Majalpur as an independent candidate in the year 1995, when
C he was elected. He remained Corporator for a period of six years
till 2001. He applied for appointment as a Notary in the year 2001
and was appointed as a Notary by the Central Govt. He has also
stated that the Best Bakery incident was a serious and sensitive
case in Vadodara, as an aftermath of Godhra incident and that he
had conducted the prosecuted of this case as the Chief Public
D
Prosecutor of District & Sessions Court in a sincere and diligent
manner. According to Shri Pandya, it is incorrect to say that all
matters in the fast track Court Judge H. U. Mahida were being
handled by Shri Gupta Addl. PP. Shri Pandya has explained that
keeping in view the work load as well as the availability of the
E prosecutors he used to divide the workload between different
Prosecutors including Shri Gupta, Addl. Shri Pandya is of the view
that being the Chief Public Prosecutor of District & Sessions Court,
his appointment and notification in Best Bakery Case was not
necessary. Shri Raghuvir N. Pandya ceases to be a Public
Prosecutor and Learned Fast Track Court Judge Shri H. U. Mahida
F
had already retired.
Shri Dilip R. Trivedi, Advocate from Mehsana has stated
to have started his practice, as an Advocate in Mehsana Courts in
the year 1977. He was appointed as Govt. Advocate and Public
Prosecutor in Mehsana in April, 2000 and remained there till the
G end of 2007. He is a member of Rashtriya Swayam Sevak Sangh
since childhood. In 1992, he joined VHP as worker and in 1999,
he become the General Secretary of VHP, Gujarat State. In 2006,
he become the President of Vishwa Hindu Parishad, Gujarat State.
According to Shri Trivedi, Vishwa Hindu Parishad is a social Hindu
H organisation with no political inclinations and had not been banned.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 219

According to Shri Trivedi post Godhra carnage there were riots in A
Mehsana District particularly in Srdarpura, Tal- Vijapur and Dipda
Darwaja, Visnagar and the bail application of accused persons
Involved in these cases were dealt with by him and other Addl.
PPs. He has further stated that the bail application of seven
accused persons were argued by him in the Sessions Court,
B
Mehsana and the same were rejected. All these seven accused
persons had approached the Gujarat High Court and Subsequently
Supreme Court also, but their bail applications were rejected. Some
other accused persons arrested in this case had also filed bail.
Applications in the Court and were granted bail. Further, as and
when the accused persons were arrested in Sardapura case, Tal- C
Vijapur, they were released on bail on various conditions. The
complainant had filed petitions in Gujarat High Court vide Crl.
Misc. Appls. No. 3590/02, 3591/02 & 4026/02 against the bail
order, which were dismissed by the High Court. Shri Trevedi has
added that as and when the accused persons filed their bail
D
application the same were argued in an honest and impartial
manner depending upon the evidence available for and against
the accused persons. He has also stated that considering the
arguments and the evidence available against and for the accused
persons, as per police investigation, the court had either granted
them bail or dismissed their bail applications on merits and that E
the same was purely the discretion of the court. In these cases
the charge sheets were filed by the IO in the concerned Court of
the competent jurisdiction, but the trail was not conducted by him.
Shri Rajendra Darji, Advocate had denied any connection
with Vishwa Hindu Parishad, Bajrang Dal or any of the connected F
organisations. He has stated that he become Addl. PP and Addl.
Govt. Pleader in Mehsana District in April 2000 and reminded
there till 2004. In 2005, he appeared for the interview and was
appointed as Addl. Govt. Pleader and till 2007. In 2008, he was
again appointed as Addl. Govt. Pleader and he continues to be the
Addl. PP. He has stated that Dipada Darwaja case was charge G
sheeted in the first Fast Track Court of Shri P. R. Patel and
subsequently transferred to the Court of Shri S. J. Seth and again
transferred to the Court of Shri I. B. Waghela, Initially, Shri R. M.
Jani was the Prosecutor in this case, who examined 11 witnesses.
Thereafter, this case was conducted by Shri Nirmalbhai S. Shah, H
220 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Govt. Advocate, who examined 16 witnesses. Later on he had
further stated that he had got dismissed the bail application of the
seven accused persons from the Court. He has also stated to
have dealt with this case in an independent and impartial manner.
Shri Piyush L. Gandhi, Advocate remained a RSS activist
B since 1964, a worker of Akhil Bhartiya Vidharthi Parishad between
1968 to 1972, District Pramukh of Janta-Yuva Morcha between
1973 to 1980, Secretary of Panchmahal District VHP between
1982 to 1990, Officiating Pramukh of Panchmahal District VHP
between 1990 to 2006 and Administrator of schools associated
with Vidya Bharti since 2006 till date. He had also been appointed
C as Director of Godhra City CO-operative Bank in 1996 and
treasurer of National Blind Samiti in 1994. He remained Govt.
Advocate and Public Prosecutor of Panchmahal from 15-01-1996
to 01-09-2009. He has stated that in the riot cases post Godhra
carnage in the year 2002, Shri J. G. Pathak and Shri B. J. Trivedi
D advocates were appointed as Spl. PPs to conduct the trial of these
cases. However, this appointment was cancelled with effect from
04-12-2003 and these cases were entrusted to him for trial.
However, in some of the cases, Shri Rajendra Trivedi, Shri A. R.
Dave and Shri D. P. Pathak were also appointed as Spl. PPs. Shri
Gandhi has also stated that he had conducted the trial of Shabana-
E Suhana bang rape and murder case and that in this case, the
complainants had filed Crl. Revision Apps. NO. 94/2004 & 142/
2004 in Gujarat High Court in Gujarat High Court, in which some
allegations had been levelled against him. He has further stated
that the Gujarat High Court had dismissed these allegations on
F the first date of hearing on 12-10-2004. He has also stated that he
had concluded the trial of this case and many of the accused
persons were convicted, and awarded life imprisonment. He has
also stated that appeals had been filed against the acquittal of
some of the other accused persons in this case in the Gujarat
High Court.
G
On overall examination of these allegations, it
appears that government had usual practice of appointment
of government pleaders, the political affiliation of the
advocates did weigh with the Govt. for the appointment of
the Public Prosecutors. However, no specific allegation of
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 221

showing favour by them to any of the accused persons A
involved in the riots either in grant of bail or during the
trial has come to light……”
(emphasis supplied)
We fail to understand as to how this act can be linked with the
allegation of hatching of criminal conspiracy for causing or precipitating B
mass violence across the State. The appellant having failed to provide
sufficient material to raise serious suspicion in respect of allegation of
hatching of criminal conspiracy for the intended mass violence, cannot
be heard to make that deficiency by raising allegation of the kind of
appointments of public prosecutors during the trial of the concerned cases. C
Be that as it may, the allegation clearly overlooks the procedure regarding
appointment of a public prosecutor. It begins with notification by the
Collector and District Magistrate in the local newspaper and the eligible
candidates are interviewed by a Board comprising of Principal Sessions
Judge and District Magistrate. Such being the selection process for
appointment of public prosecutors, the allegation under consideration D
has been rightly discarded by the SIT albeit after thorough analysis of
all aspects relevant in that regard. There is nothing to indicate that any
grievance was received by the SIT from any quarter during the trial of
nine cases assigned to it by this Court for investigation, else there is no
reason to doubt that SIT would have taken corrective measures and E
made appropriate recommendations for being given effect to by the
concerned authorities in terms of the order of this Court dated
1.5.2009152A.
74. Similarly, the allegation No. (xvii) about failure to take action
against the print media has been discarded by the SIT153 being insufficient F
evidence to make out any criminal case against the named offenders. It
is a different matter that such publication must have been released, but
no material is forthcoming that it has been done at the behest of the
named offenders or they prevented the local police from taking action in
that regard. Emphasis was also placed by the appellant on the speeches
delivered by Dr. Praveen Togadia, named as offender No. 20 in his G
capacity as International General Secretary, VHP. However, that piece
of material cannot be the basis to link it with the allegation of larger
152A
supra at Footnote No. 18
153
pages 298-301 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2 H
222 SUPREME COURT REPORTS [2022] 6 S.C.R.

A criminal conspiracy hatched at the highest level for causing and
precipitating mass violence across the State against the minority
community during the relevant period. Further, 232 crimes regarding
hate speeches came to be registered against the concerned persons
across the State. The SIT in connection with the complaint of appellant,
was not expected to enquire into utterances made by different persons
B
constituting hate speech during the surcharged situation of riots, as the
remit of the SIT was to enquire into the allegation of larger criminal
conspiracy at the highest level resulting in spreading of mass violence
across the State during the relevant time.
75. Even the allegation No. (xviii) that State Home Department
C gave misleading reports about normalcy to the State Election Commission,
has been discarded by the SIT after analyzing the relevant facts including
the decision about the timing to conduct elections was that of the Election
Commission. That was taken by the Election Commission of India despite
not accepting the statistics furnished by the State.
D 76. Reverting to the allegation regarding secret meeting [allegation
No. (xxxi) discussed at pages 329-332 154] and meeting held by
Mr. Kalubhai Hirabhai Maliwad [allegation No. (xxxii) discussed at pages
332-337155], the SIT after thorough investigation and analyzing the
relevant materials, has opined that the same are figment of imagination
E replete with inaccuracies and contradictions.
77. Our attention was drawn to the recommendations of the NHRC
and also the report of the private Tribunal, named as Concerned Citizens
Tribunal. The narrative recorded therein cannot be the sole basis to
proceed against the offenders. Whereas, dependent upon the quality of
F materials gathered by the SIT during thorough investigation done by it
on all factual aspects including the ones referred to by the NHRC and
the private Tribunal, the SIT could form its independent opinion. The
SIT had precisely followed this route before submitting the final report
to the concerned Magistrate as per the direction given by this Court.

G 78. The appellant had urged that the SIT had not investigated the
willful failure of the fire brigade in Ahmedabad to respond to the calls
made by the minority community being part of the criminal conspiracy.
154
pages 329-332 of original copy of the final report forming part of Convenience
Compilation of respondent No. 2
155
pages 332-337 of original copy of the final report forming part of Convenience
H Compilation of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 223

This argument is unfounded and tenuous. The fire services in Ahmedabad A
City come within the jurisdiction of Ahmedabad Municipal Corporation
and not the State police or the State civil administration. The
Commissioner of Police of .Ahmedabad City, who has been blamed by
the appellant, had nothing to do with the functioning of the fire brigade.
No tangible material is forthcoming to indicate that the Commissioner of
B
Police of Ahmedabad City had issued instructions to the officials of fire
services in Ahmedabad City under the control of the Ahmedabad
Municipal Corporation. Whereas, the materials collected by the SIT would
reveal that in the entire city of Ahmedabad, blockades were created at
various locations due to mass violence, making it difficult, if not impossible,
for movement of the vehicles such as fire brigade. In any case, this C
argument is one of inaction or failure of fire services in the Ahmedabad
City. That cannot be the basis to infer criminal conspiracy, much less
hatched at the highest level to cause mass violence across the State.
79. The respondents had justly contended that the attempt of the
appellant was to keep in improvising their grievances and make new D
allegations including to involve new offenders as being party to the larger
criminal conspiracy hatched at the highest level. Appellant in filing the
protest petition had the gumption to assert that the list of persons was
not exhaustive besides naming new persons as offenders. In the name
of protest petition (running into 514 pages), appellant was also indirectly
questioning the decisions rendered by the Courts in other cases including E
sub judice matters, for reasons best known to her. She was obviously
doing so under dictation of someone. In fact, the sizeable contents of the
protest petition are founded on the affidavits filed by those persons, whose
version have been found to be replete with falsehood.
80. Be that as it may, after going through the analysis done by the F
SIT of the concerned allegations, we have no hesitation in accepting
such opinion that no case had been made out against the named offenders,
much less to indicate being party to the hatching of larger criminal
conspiracy to cause or precipitate mass violence across the State against
the minority community during the relevant period. G
81. It is, therefore, not open to hold that the investigation by the
SIT in the present case has been deficient or infirm. Suffice it to observe
that every allegation found in the complaint (running into 67 pages) had
been culled out by the SIT and articulated in the form of thirty-two (32)
broad allegations. The same had been duly investigated from all angles H
224 SUPREME COURT REPORTS [2022] 6 S.C.R.

A before submitting the report to this Court. The analysis and opinion of
the SIT of the materials collected during investigation allegation-wise,
witness-wise as well as, offender-wise are broadly agreed upon even
by the learned Amicus Curiae - except the observations made regarding
some matters, which observations have also been thoroughly enquired
into by the SIT by way of further investigation and duly analyzed for
B
recording its opinion156 (appended as Annexure-1 to this judgment), in
the final report presented to the concerned Court. The Magistrate, as
well as, the High Court have accepted the final report presented by the
SIT. For, there is no material worth the name to even create a suspicion
(leave alone strong suspicion and a ground for presuming that the named
C offenders had committed an offence of larger conspiracy), indicative of
the meeting of the minds of all concerned at some level; and in particular,
the bureaucrats, politicians, public prosecutors, VHP, RSS, Bajrang Dal
or the members of the State political establishment - for hatching a larger
criminal conspiracy at the highest level to cause and precipitate mass
violence against the minority community across the State during the
D
relevant period. Such conclusion reached by the Magistrate and the High
Court is unexceptionable.
82. We may hasten to add that our understanding about the thrust
of the approach adopted by the SIT is not to form opinion because of
doubting the credibility of the witnesses as such, which indeed would
E have been a matter for trial. However, the SIT went by the logic of
falsity of the information or material, including the same remaining
uncorroborated despite the best endeavour made by the SIT. It is certainly
not a case of failure of SIT in doing proper investigation into the allegations
of larger conspiracy as such. The SIT was obviously conscious that it
F would not be a case of strong suspicion about the commission of offence
of larger criminal conspiracy - absent credible, verifiable and corroborated
information/material. It is for that reason it had to record its unambiguous
opinion after duly analyzing all angles and the information/material collated
during the enquiry/investigation - that there was no case for proceeding
against the named offender(s) as the offences under the relevant sections
G of law were not made out; and, therefore, to urge upon the Magistrate to
accept the final report/closure report. This is not to say that the SIT and
the Courts have doubted the occurrence of instances registered as crimes
during the relevant period, nor have put a seal of approval to such heart-
156
pages 398-467 of original copy of the final report forming part of Convenience
H Compilation of respondent No. 2
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 225

rending instances. Whereas, every registered crime in that regard A
(including the unfortunate gruesome killing of husband of appellant), has
been duly investigated by the Court appointed SIT and accused person(s)
involved in commission of such crimes have been duly identified and had
to face the trial before the jurisdictional Courts.
83. Relying on the decision in Nirmal Singh Kahlon157, it was B
urged that if it is open to file second FIR in connection with the alleged
offence, the self-imposed remit of the SIT can be no impediment for
proceeding against the concerned persons on the basis of further
information/material referred to in the protest petition or which comes to
the notice of the appellant in due course. The argument, though attractive
at the first blush, has been stated only to be rejected. In that, for the C
view that we have taken hitherto that the SIT, as well as, the Courts
including the appellant is bound by the sui generis directions issued by
this Court from time to time, the matter could be examined only in that
context and not in reference to the approach to be adopted in general
cases. Furthermore, the SIT has observed that the so-called additional D
information/material would not improve the case of the appellant, as
taking the same as it is, there is no indication therein about the perceivable
link to show hatching of criminal conspiracy at the highest level for
causing and precipitating mass violence across the State against the
minority community during the relevant period.
E
84. The SIT was entrusted with investigation of nine (9) sets of
crimes including the occurrences at the Gulberg Society. Status reports
regarding the progress of investigation was submitted to this Court in all
those cases and after satisfaction of this Court about the completion of
proper investigation done by the SIT, report(s) under Section 173 of the
Code came to be filed in the concerned cases and the identified persons F
involved in commission of crime(s) were also sent for trial. Moreover,
the trials of the concerned cases had progressed under continuous
supervision of this Court, which have ended in conviction of accused in
the concerned cases, as indicated in the Chart submitted alongwith Final
Note Part-1 filed on behalf of respondent No. 2, marked as Annexure- G
2157A and deemed to be part of this judgment.
85. Despite the humungous task undertaken by the members of
the SIT with sincerity, objectivity and dispassionately including to the

157
supra at Footnote No. 44 H
226 SUPREME COURT REPORTS [2022] 6 S.C.R.

A satisfaction of this Court in all these cases, the argument of the appellant
was bordering on undermining the integrity and sincerity of the members
of the SIT. Needless to underscore that the SIT came to be constituted
by this Court of experienced senior officials with proven ability of
investigating complex offences. Therefore, we find such submission as
not only far-fetched and an attempt to undo and undermine the industry
B
of the SIT in having thoroughly investigated all the nine (9) sets of cases
assigned to it by this Court, but also in the nature of questioning the
wisdom of this Court. Hence, the assail of the appellant needs to be
stated to be rejected. While observing sobriety, we say no more.
86. We do not wish to dilate on the other reported decisions, for
C the view we have taken and more so, we have followed the settled legal
principles in answering the matters in issue.
87. We need to clarify that our analysis regarding sting operation
or the Tehelka Tape and its transcript, is not a final determination regarding
the evidentiary value thereof. We say so because the same will have to
D be dealt with in appropriate proceedings, in particular, other cognate
criminal cases investigated by the Supreme Court appointed SIT including
those pending before the High Court and this Court.
88. While parting, we express our appreciation for the indefatigable
work done by the team of SIT officials in the challenging circumstances
E they had to face and yet, we find that they have come out with flying
colours unscathed. At the end of the day, it appears to us that a coalesced
effort of the disgruntled officials of the State of Gujarat alongwith others
was to create sensation by making revelations which were false to their
own knowledge. The falsity of their claims had been fully exposed by
F the SIT after a thorough investigation. Intriguingly, the present proceedings
have been pursued for last 16 years (from submission of complaint dated
8.6.2006 running into 67 pages and then by filing protest petition dated
15.4.2013 running into 514 pages) including with the audacity to question
the integrity of every functionary involved in the process of exposing the
devious stratagem adopted (to borrow the submission of learned counsel
G for the SIT), to keep the pot boiling, obviously, for ulterior design. As a
matter of fact, all those involved in such abuse of process, need to be in
the dock and proceeded with in accordance with law.
89. To sum up, we are of the considered opinion that no fault can
be found with the approach of the SIT in submitting final report dated
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 227

8.2.2012, which is backed by firm logic, expositing analytical mind and A
dealing with all aspects objectively for discarding the allegations regarding
larger criminal conspiracy (at the highest level) for causing and
precipitating mass violence across the State against the minority
community during the relevant period. As aforementioned, the SIT has
gone by the logic of falsity of the information or material and including
B
the same remaining uncorroborated. In that, the materials collected during
the investigation do not give rise to strong or grave suspicion regarding
hatching of larger criminal conspiracy at the highest level for causing
mass violence across the State against the minority community and more
so, indicating involvement of the named offenders and their meeting of
minds at some level in that regard. The SIT had formed its opinion after C
considering all the materials collated during the investigation. The question
of further investigation would have arisen only on the availability of new
material/information in connection with the allegation of larger conspiracy
at the highest level, which is not forthcoming in this case. Hence, the
final report, as submitted by the SIT, ought to be accepted as it is, without
D
doing anything more.
90. The Magistrate, upon presentation of final report could have
exercised different options – as predicated in Abhinandan Jha158,
Bhagwant Singh159, Popular Muthiah160 and Vishnu Kumar Tiwari161.
However, the Magistrate in the present case, after applying his mind
independently to the final report dated 8.2.2012 and the materials appended E
thereto, chose to accept the same as it is, without issuing any other
direction to the SIT.
91. After cogitating over the matter, we uphold the decision of the
Magistrate in accepting the stated final report dated 8.2.2012 submitted
by the SIT, as it is and rejecting the protest petition filed by the appellant. F
We do not countenance the submission of the appellant regarding infraction
of rule of law in the matter of investigation and the approach of the
Magistrate and the High Court in dealing with the final report.
92. Accordingly, we hold that this appeal is devoid of merits and
resultantly, deserves to be dismissed in the aforementioned terms. We G
order accordingly.
157A
Annexure-2 (at pages 450-452 of this judgment)
158
supra at Footnote No. 28
159
supra at Footnote No. 21
160
supra at Footnote No. 30
161
supra at Footnote No. 27 H
228 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Pending applications, if any, shall stand disposed of accordingly.
ANNEXURE-1 162
-----------------------------------------------------------------------------------
……..
B Page: 398
Opinion of Shri Raju Ramchandran, Amicus Curiae:-
Shri Raju Ramchandran, Sr. Advocate assisted by Shri Gaurav
Aggarwal, Advocate had been appointed as Amicus Curiae by the
Hon’ble Supreme Court of India to assist the Court in this matter. Shri
C Raju Ramchandran, AC initially examined the Inquiry Report submitted
by the SIT to the Hon’ble Supreme Court of India and submitted his
observations on the findings of the SIT on 20.0l.2011, to the Hon’ble
Supreme Court of India, in three parts i.e. Chart ‘A’, Chart ‘B’ & Chart
‘C’.
D The aforesaid observations made by the Ld. Amicus Curiae were
considered by the Hon’ble Spl. Bench of Supreme Court of India on
15.03.2011, when the following observations were made:-
“A copy of the note submitted by the learned amicus Curiae
has already been supplied to the Chairman, Special
E Investigation Team (SIT). Let the Chairman, SIT, look into the
observations made by the learned amicus curiae against each
of the findings given by the SIT on the allegations made in
the complaint and submit this report thereon. If considered
necessary, it will be open to the SIT to carry out further
investigation in light of the observations made in the said
F
note. The report shall be submitted by 25th April, 2011. List
the case on 27th April, 2011 at 3:00 p.m.”
Pursuant to the aforesaid order, SIT conducted further
investigation u/s 173(8) Cr.P.C. in Gulberg Society Case
(Meghaninagar P.S. 1 CR No.67/02) as suggested by Ld. Amicus
G Curiae in his observations submitted in the note dated 20.01.2011
to the Hon’ble Supreme Court of India.
The recommendations made in Chart ‘A’ by the Ld. Amicus Curiae
vis-à-vis further investigation conducted is discussed below:-
162
H see para 33 of this judgment
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 229

Chart- ‘A’ A

B

C

D

E

F

G

H
230 SUPREME COURT REPORTS [2022] 6 S.C.R.

A

B

C

D

E

F

G

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 231

A

B

C

D

E

F

G

H
232 SUPREME COURT REPORTS [2022] 6 S.C.R.

A

B

C

D

E

F
Observations made by Ld. Amicus Curiae:
It would be impossible to get anyone present in the meeting
on 27-02-2002 to speak against Shri Modi, especially the
bureaucracy and police officials.
G It may not be correct to rule out the presence of Sanjiv Bhatt,
IPS, DC (Int.) since Addl. DC (Int.) Shri G.C. Raiger 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.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 233

Result of further Investigation: A
Further investigation in this regard revealed that the
information about the burning of a railway coach of
Sabarmati Express near Godhra Railway Station was
received by Shri Narendra Modi, Chief Minister on
27.02.2002 at about 0900 hrs. from Shri Ashok Narayan, B
the then ACS
---------------------------------------------------------------------------
Page: 402
(Home). On receipt of the information, Shri Narendra Modi C
held a meeting at around 1030 hrs. with Shri Gordhan
Zadafia, the then MoS (Home), Shri Ashok Narayan, the
then ACS (Home), Shri K. Chakravarthi, the then DGP,
Shri P.C. Pande, the then CP, Ahmedabad City and other
personal staff of CM. Till then, no specific information was
available about the number of casualties and the injured D
persons. In this meeting, Shri Narendra Modi emphasised
that the culprits responsible for the incident should be
apprehended and not allowed to escape. No minutes of the
meeting were prepared. However, Shri Ashok Narayan had
prepared a note on the basis of information provided by E
DGP for CM and MoS (Home) to make a statement in the
Assembly as the question relating to the Godhra incident
was likely to be raised in the Assembly which was in Session.
The Chief Minister had given directions that the steps
should be taken not to delay the medical help to surviving
passengers and also to impose curfew to avoid any untoward F
incident. Godhra being a communally sensitive place. The
Chief Minister had also instructed that the senior officers
and the extra force, if required, must reach Godhra without
any delay.
Around 1200 hrs, Chief Minister attended the Assembly G
session and a call attention motion relating to the Godhra incident
tabled by Shri Punjabhai Vansh, MLA came up for discussion at
1300 hrs, but the Hon’ble Member was not present in the House.
Dr. Mayaben Kodnani, MLA from Naroda spoke on the said issue.
H
234 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Shri Gordhan Zadafia, the then MoS (Home) made a statement in
the House based on the aforesaid note prepared by Shri Ashok
Narayan, the then ACS (Home). During zero hour, Shri
Narendra Modi made a statement that he had discussed
the matter with the then Prime Minister Shri Atal Bihari
B Vajpaee and announced an ex-gratia payment of Rs.
2,00,000/- each to the next of kin of those killed in the
Godhra incident and also ordered a High-Level Inquiry into
the incident. All these facts were mentioned in the Assembly
proceedings, as well as in the press release issued by the
C Govt. of Gujarat on 27-02-2002.
Shri Gordhan Zadafia, the then MoS (Home) left for Godhra
by road around 1400 hrs. and reached there at about 1630 hrs,
Shri Ashok Bhatt, the then Health Minister had already reached
D Godhra around 1200 hrs. It may be mentioned here that 27-02-
2002 was a budget day in the Assembly and after the completion
of the budget speech by Shri Nitinbhai Patel, the then Finance
Minister, the Assembly proceedings were over at about 1500 hrs.
Shri Narendra Modi left for Ahmedabad airport around 1530
E hrs for his onward journey to Vadodara / Godhra. Shri
Narendra Modi reached Ahmedabad airport at 1600 hrs and
left for Vadodara by Govt. aircraft. The Chief Minister
reached Vadodara at about 1630 hrs. and then proceeded
to Godhra by helicopter immediately, where he reached
F around 1645 hrs. He was accompanied by Shri Anil Mukim,
the then Addl. PS to CM and Shri Jagdish Thakker, PRO
to CM. According to the press release issued by the Govt.
of Gujarat on 27-02-2002, CM visited the scene of
occurrence at Godhra Railway Station and then went to Civil
G Hospital and saw the injured admitted there. Thereafter,
he went to Collectorate and held meeting with the
Ministers present there namely Shri Ashok Bhatt, Shri
Gordhan Zadafia, Shri Bhupendra Lakhawala, Shri
Prabhatsinh Chauhan (all Ministers in the State Govt.) Shri
H Bhupendrasingh Solanki, the then Member, Lok-Sabha
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 235

from Godhra, Collector & District Magistrate, Godhra, A
Police Officers and Railway Officers. The Chief Minister
had also met the press briefly thereafter. As per media
reports Shri Narendra Modi said the Govt. would ensure
the maintenance of peace in the State and the Govt. would
not be lacking in discharge of its duty. He also said that B
tragedy was unparallel in the history of Gujarat and assured
the people that culprits would be punished. At no point of
time, Shri Jaydeep Patel, VHP leader, who was at Godhra
on that day, had met him. The Chief Minister left Godhra
by road around 1945 hrs (after the sunset) and reached C
Vadodara airport at about 2130 hrs. Shri Narendra Modi
left for Ahmedabad by Govt. aircraft at 2130 hrs and reached
his official residence at Gandhinagar at about 2230 hrs.
Investigation has further revealed that a law & order D
meeting was held by Chief Minister at his residence around
2300 hrs, which was attended by Smt. Swarna Kanta Varma,
the then acting Chief Secretary, Shri Ashok Narayan, the
then ACS (Home) Dr. P.K. Mishra, the then Principal
Secretary to CM, Shri Anil Mukim the then Addl. PS to E
CM, Shri K. Chakravarthi, the then DGP, Shri P.C. Pande,
the then CP, Ahmedabad City, Shri K. Nityanandam, the
then Secretary (Home) and Shri Prakash S. Shah, the then
Addl. Secretary (Law & order). Shri G.C. Raiger, the then
Addl. DG (Int.), who was on casual leave and had returned F
to Ahmedabad on 27-02-2002 evening, had not attended
the same. However, Shri Sanjiv Bhatt, the then Deputy
Commissioner of Intelligence (Security) has claimed to have
attended the said meeting at the instance of DGP.
--------------------------------------------------------------------------- G

Page: 403
All the aforesaid officials have been re-examined and
their statements recorded u/s 161 Cr.P.C. Their deposition
in brief is given below:- H
236 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (i) According to Smt. Swarna Kanta Varma, the then acting Chief
Secretary, she was present in the said meeting, but she can not
recollect, as to whether any Minister or other police/Govt. officials
(besides the individuals indicated above) were present there. On
being shown the photograph of Shri Sanjiv Bhatt, she has
stated that she can not recollect having met or seen him in
B
this meeting or in any meeting during the period of her
charge as Chief Secretary, Smt. Swarna Kanta Varma has
stated that Chief Minister had said in the aforesaid meeting
that the Godhra incident was very unfortunate and that it
should be handled with a firm hand. However, she has
C denied that there was any mention by Chief Minister of
balancing action against Hindus and Muslims or Muslims
be taught a lesson or Hindus be allowed to vent their anger.
(ii) Shri Ashok Narayan, the then ACS (Home) has stated
that Shri Sanjiv Bhatt, the then DC (Security) did not attend
D the said meeting on 27-02-2002. He has further stated that
no Minister was present in the said meeting. He has also
stated that DGP gave sequence of events of Godhra incident,
possible repercussions of the same and also about his requirement
of additional forces. He has denied any utterances by Chief
Minister to the effect that the police approach of balancing
E action against Hindus and Muslims would not work any
more, Muslims should be taught a lesson and that Hindus
should be allowed to vent their feelings/anger. He has,
however, stated that Chief Minister did say that the people
were outraged by the Godhra incident and therefore,
F effective steps should be taken to control the communal
riots.
(iii) Shri P.K. Mishra, the then Principal Secretary to CM
has categorically denied the presence of Shri Sanjiv Bhatt,
the then DCI (Security) in the meeting of 27-02-2002. He
G has further denied the presence of any politicians in the
said meeting. As regards the observation allegedly made
by CM that for too long the Gujarat Police had been
following the principle of balancing actions against the
Hindus and Muslims while dealing with the communal riots
in Gujarat; the situation warranted that the Muslims be
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 237

taught a lesson to ensure that such incidents do not recur A
and that the emotions were running very high amongst the
Hindus and they be allowed to vent their anger, Shri Mishra
has stated that it was not true that Chief Minister talked in
these terms. He has further stated that in this meeting, officials
of the Home Department and police officers apprised CM about
B
the action already taken to prevent any untoward incident in view
of the emerging situation and the bandh call. He has also stated
that CM briefed the officials about his Godhra visit and
impressed upon them to take all possible steps including
preventive arrests to avoid any untoward incident.
(iv). Shri K. Chakravarthi, the then DGP has stated that Shri C
G.C. Raiger, the then Addl. DG (Int.) was on casual leave on
27-02-2002, and therefore, he did not attend the said meeting. He
does not recollect, as to whether Shri Raiger contacted him over
phone on 27-02-2002 evening and informed him about his arrival
at Ahmedabad. However, he has categorically stated that D
Shri Sanjiv Bhatt did not attend the said meeting on
27-02-2002 night at CM’s residence and no such
instructions were given by Chief Minister. Shri Chakravarthi
has added that in case Shri G.C. Raiger was available at
Ahmedabad, he would have given instructions to him to attend
this meeting through the State Control Room rather than asking E
Shri Sanjiv Bhatt to attend. According to Shri Chakravarthi Shri
O.P. Mathur, the then IGP (Admn. & Security) was also available
and could have been called in the said meeting instead of calling a
junior officer of SP level (Shri Sanjiv Bhatt). Shri Chakravarthi
has further stated that as per his recollection, none of the F
Ministers/politicians had attended the said meeting on
27-02-2002. Shri Chakravarthi has also stated to have
briefed CM about the bandobast made by him in the wake
of the bandh call given by VHP on 28-02-2002, and also
about the additional requirement of forces. Shri
Chakravarthi had also informed CM about the appeal made G
by him to the general public on Door-Darshan/All India
Radio to maintain peace. As per Shri Chakravarthi, CM
had said that the Godhra incident was very serious and
bound to affect the public at large and therefore, adequate
arrangements should be made. Shri Chakravarthi has stated H
238 SUPREME COURT REPORTS [2022] 6 S.C.R.

A that CM had also spoken about the Govt. decision to
transport dead bodies of Godhra victims to Ahmedabad City
by road and to keep them in Sola Civil Hospital, which was
then located on the outskirts of Ahmedabad City. According
to Shri Chakravarthi, this decision was not opposed by
anyone in the meeting, as a considerable number of victims
B
belonged to Ahmedabad and nearby places. Regarding the
allegation against Chief Minister for speaking in the terms
that for too long the Gujarat Police
---------------------------------------------------------------------------
C Page: 404
had been following the principle of balancing the action
against the Hindus and Muslims etc. and the Hindus be
allowed to vent their anger, Shri Chakravarthi has denied
any such utterances by Chief Minister in the meeting. He
D also denied having spoken to Shri R.B. Sreekumar, the then
Addl. DG (Arms Unit) in this regard.
(v) Shri. P.C. Pande, the then Commissioner of Police,
Ahmedabad City has denied the presence of Shri Sanjiv Bhatt
in law & order meeting called by Chief Minister on
E 27-02-2002 night. He has further stated that the meeting lasted
for 15-20 minutes and that the discussions centred around
maintenance of Law & order in view of the bandh call for the
next day, its likely repercussions and availability of forces. As
regards the allegations against Chief Minister about having
said that for too long the Gujarat Police had been following
F the principle of balancing the actions against Hindus and
Muslims etc. etc. and the Hindus be allowed to vent their
anger, Shri Pande has categorically stated that no such
instructions to allow any freedom to any law breaker were
given by Chief Minister. He has out rightly denied the
G presence of any Minister or Shri Sanjiv Bhatt, the then DCI
(Security) in the said meeting. Regarding the Govt decision to
transport the dead bodies of Godhra Victims to Ahmedabad, Shri
Pande has stated that he does not recollect the exact talks, which
took place in the said meeting, but the sum and substance of
the discussions was that the dead bodies were being brought
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 239

to Ahmedabad City with a view to facilitate the relatives of A
the deceased persons to identify and claim the same.
(vi) Shri Anil Mukim, IAS, the then Addl. PS to CM has stated
that he attended the said meeting for some time and then left
after taking permission from Shri P.K. Mishra, IAS (Retd.) the
then Principal Secretary to CM. He has further stated that as B
long as he was present in the meeting, general discussions were
held regarding the Godhra incident and necessary preventive
measures required to be taken under the circumstances were also
discussed. He has out rightly denied any utterances/
instructions by CM about Muslims being taught a lesson
and the Hindus being allowed to vent their anger, in his C
presence. He has denied the presence of Shri Sanjiv Bhatt,
the then DCI (Security) in the said meeting. He has also
denied the presence of any Minister or politician in the
meeting.
(viii) Shri K. Nityanandam, the then Secretary (Home) has stated D
that he attended the law & order meeting called by the Chief
Minister at his residence on 27-02-2002, at about 2300 hrs. He
has further stated that the deliberations in the meeting
mainly revolved around the Law & order situation post
Godhra train incident and efforts to handle future Law & E
order problems in view of the bandh call on 28-02-2002.
He has denied the presence of any Minister or Shri Sanjiv
Bhatt in the said meeting. He has also denied any such
alleged observations made by the Chief Minister about
Muslims being taught a lesson etc. etc. and the Hindus be
allowed to vent their anger. According to Shri F
K. Nityanandam, he does not recollect Shri Sanjiv Bhatt
being present in any law & order meetings called by the
Chief Minister as IGP/Addl. DGP rank officer were
available in the State Intelligence Bureau to present the
issues relating to intelligence. G
(ix) Shri Prakash S. Shah, the then Addl. Secretary (Law &
order) has confirmed to have attended the Law & order meeting
called by the Chief Minister at his residence on 27-02-2002 night.
He has further stated that the Chief Minister gave an
account of Godhra incident, while Shri Chakravarthi and H
240 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Shri Pande briefed CM about the possible repercussions
of Godhra incident about the arrangements and bandobast
made by them and also about the deployment of forces.
According to Shri Shah, the Chief Minister instructed all
the officers that communal peace and harmony be
maintained at all costs and all possible steps be taken to
B
control the possible communal flare up. He has denied the
presence of any Minister or Shri Sanjiv Bhatt in the said
meeting. He has further stated that the Chief Minister did
not say anything on the lines of the police approach of
balancing action against Hindus and Muslims and also that
C the Hindus should be allowed to vent their anger.
(x) Shri Sanjiv Bhatt, the then DCI (Security) stated that he
received intelligence inputs on 27-02-2002, regarding the despatch
of dead bodies from Godhra to Ahmedabad under police escort,
the State supported bandh call and the intention of the Sangh Parivar
D activists to parade the dead bodies in the form of funeral procession
in communally sensitive areas of Ahmedabad City. He has claimed
to have attended a late night meeting of 27-02-2002 called by the
Chief Minister at his residence about which he was intimated by
State IB Control Room and State Police Control Room that Shri
K. Chakravarthi, the then DGP wanted him to accompany the
E latter in the said meeting. Significantly; at enquiry stage Shri Sanjiv
Bhatt himself has admitted in his signed statement that Shri G.C.
Raiger; the then Addl. DG (Int.) was on casual leave till
---------------------------------------------------------------------------

F Page: 405
28.02.2002, but had curtailed his leave and came back to
Ahmedabad on 27.02.2002 evening. This fact has been confirmed
by Shri G.C. Raiger, the then Addl. DG (Int.), who has stated to
have called DGP and informed about his availability from the
G evening of 27.02.2002. Moreover, Shri P. B. Upadhay, the then
DCI (Communal), the concerned officer dealing with the
communal subject has also stated to have curtailed his casual
leave on 27.02.2002 and was available in the office. He also
stated that he had accompanied Shri K. Chakravarthi in
the latter’s car from DGP’s office to CM’s residence and
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 241

claimed that he attended the said meeting, which was also A
attended by Incharge Chief Secretary Smt. Swarna Kanta
Varma, ACS (Home) Shri Ashok Narayan, Shri Anil Mukim,
the then Addl. PS to CM, Shri P.C. Pande, the then CP,
Ahmedabad City and Shri K.Nityanandam, the then
Secretary (Home). However, he is unable to recollect, as
B
to whether Shri P.K. Mishra, the then Principal Secretary
to CM was present in the said meeting or not Shri Bhatt
has further stated that to the best of his recollection, no
politician/Minister was present in the said meeting. He has
also stated that Shri G.C. Raiger, the then Addl. DG (Int.) did not
attend the said meeting being on casual leave and that he was not C
aware, as to whether Shri Raiger had returned to Ahmedabad on
27-02-2002 evening. He has denied to have contacted Shri Raiger
on 27-02-2002 evening, at his residence. Shri Sanjiv Bhatt has
claimed that he used to attend the intelligence related meetings
called by the Chief Minister. As per Shri Bhatt, this meeting
D
was essentially a Law & order review meeting and the main
issues discussed during the said meeting revolved around
the bandh call given by VHP and ruling BJP as well the
decision to bring the dead bodies of Godhra victims to
Ahmedabad. Shri Sanjiv Bhatt has also stated that Shri P.C.
Pande, the then CP, Ahmedabad City had strongly opposed E
the Govt. decision for the transportation of dead bodies of
Godhra victims to Ahmedabad as the same was likely to
lead to serious communal riots in Ahmedabad City and these
views were supported by Shri K. Chakravarthi, the then
DGP. According to Shri Sanjiv Bhatt, Shri Chakravarthi had
F
conveyed to CM that the available resources of Gujarat
Police were over stretched to cope with the law & order
situation that was likely to arise in the wake of bandh call
given by the VHP on the next day and had expressed his
inability to supplement the manpower resources of CP,
Ahmedabad City. Shri Sanjiv Bhatt has stated that as per his G
recollection, there was no meaningful contribution from Shri K.
Nityanandam, the then Secretary (Home). Shri Ashok Narayan,
the then ACS (Home) and Smt. Swarna Kanta Varma, the then
acting Chief Secretary. Shri Sanjiv Bhatt has further stated that
DGP and CP, Ahmedabad City tried to impress upon the Chief
H
242 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Minister that the bandh call given by VHP on 28-02-2002, which
was supported by the ruling party BJP was not a good idea, as far
as the law & order situation of the State was concerned but the
Chief Minister did not seem to be convinced by their arguments
and stated that the incident like burning of kar-sevaks at Godhra
could not be tolerated. According to Shri Bhatt, CM impressed
B
upon the gathering as below :-
“That for too long the Gujarat Police had been following
the principle of balancing the actions against the Hindus
and Muslims while dealing with the communal riots in
Gujarat. This time the situation warranted that the Muslims
C be taught a lesson to ensure that such incidents do not
recur ever again. The Chief Minister Shri Narendra Modi
expressed the view that the emotions were running very
high amongst the Hindus and it was imperative that they
be allowed to vent out their anger”.
D According to Shri Sanjiv Bhatt, no minutes of the meeting
were prepared by him or DGP, but he had no knowledge as to
whether any minutes were kept by CM’s office or Home
Department. He also claimed of making a mention of the said
meeting in his movement diary for February, 2002. Shri Sanjiv
E Bhatt has further stated that he expressed his opinion against the
decision of BJP to support the bandh call given by VHP and also
the decision of the administration to-bring the dead bodies of the
victims from Godhra to Ahmedabad City. He also stated that he
expressed a view that the taking out of the funeral procession of
the victims in the respective areas would lead to major communal
F violence in Ahmedabad City and other communally sensitive areas
across the State.
Shri Sanjiv Bhatt stated that he took leave thereafter from
Shri K. Chakravarthi, the then DGP, and returned to state IB
office in order to send alert messages and instructions to the
G concerned police/intelligence units. Subsequent to the aforesaid
meeting at CM’s residence, Shri Bhatt has claimed to have issued
several messages to the Police units as well as the field units of
the IB with respect to the developing situation including the
possibility of wide spread communal violence during the Gujarat
H bandh and wherein, he reiterated to different CsP and SSP to
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 243

take all possible measures to prevent untoward incidents in their A
respective jurisdiction. Surprisingly, he
---------------------------------------------------------------------------
Page: 406
informed everyone about it but did not inform his own Head of B
the Department i.e. Shri G.C. Raiger, whom he had allegedly
represented in the meeting and whose present in the station was
very much in his knowledge. He has denied to have contacted
Shri G.C. Raiger over phone in the night of 27-02-2002 and has
stated that he briefed Shri Raiger about the said meeting and the
deliberations that had taken place, when he had attended office C
on the next day, i.e. 28-02-2002 morning, at about 1000 hrs which
has been denied by Shri Raiger. Interesting, the call details of
Govt. mobile phone of Shri Sanjiv Bhatt show that he was at
Ahmedabad till 1057 hrs on 28.02.2002. He has further claimed
that the details of the discussions held during the said meeting D
were not mentioned in any of the official correspondence/reports
as he had attended the said meeting in the capacity of an
intelligence Officer. Further, Shri Sanjiv Bhatt has claimed that
the reports had started coming in the office of the State IB
regarding the preparations made by the cadres of Sangh Parivar
to carry out strict enforcement of the bandh call given by them on E
28-02-2002, and that same should be available in the records of
State IB. Shri Sanjiv Bhatt has also claimed to have attended the
second meeting at CM’s residence on 28-02-2002 at about 1030
hrs along with Shri G.C. Raiger, the then Addl. DG (Int), in which
the deployment of manpower during the Gujarat bandh was F
discussed to monitor the developing situation and that this meeting
was also attended by Shri K. Chakravarthi, the then DGP, Shri
Anil Mukim, the then Addl. PS to CM, Late Ashok Bhatt, the then
Health Minister and Shri I.K. Jadeja, the then Urban Development
Minister. Shri Bhatt has further stated that on the conclusion of
the said meeting, the Chief Minister had instructed DGP that Late G
Ashok Bhatt and Shri I.K. Jadeja would be assisting the police in
monitoring the situation and that all necessary assistance must be
rendered to the Ministers. Shri Sanjiv Bhatt has also stated that
CM had not specifically instructed as to how the Ministers would
assist the police. Further, according to Shri Sanjiv Bhatt, the issue H
244 SUPREME COURT REPORTS [2022] 6 S.C.R.

A relating to the requisitioning of the Army was also discussed on
the basis of the suggestions given by DGP and Addl. DG (Int.),
but the Chief Minister seemed to be reluctant and was of the
view that they should wait and watch, as to how the situation
developed and not rush for the requisitioning of Army.
B According to Shri Bhatt, he returned to the Police Bhavan
and went to his chamber on the second floor, but shortly thereafter
went to DGP’s chamber around 1100 hrs to obtain his signature
for requisitioning additional forces and found Late Ashok Bhatt
and Shri I.K. Jadeja seated in his chamber, where everyone took
tea. Shri Sanjiv Bhatt has further stated that sometime later, he
C visited State Control Room on the first floor of Police Bhavan, to
collect some documents and saw Shri I.K.Jadeja and his staff
members occupying the chamber of Dy.SP State Control Room.
Finding this arrangement to be little odd and inconvenient, with
the permission of the DGP he shifted Shri Jadeja and his staff to
D the chamber of Shri P.C. Thakur, the then IGP, who was on leave.
Later during the day, Shri Sanjiv Bhatt came to know that Shri
Jadeja had left the Police Bhavan, However, as per Shri Sanjiv
Bhatt, Shri Jadeja did not interfere with the working of State Police
Control Room on 28-02-2002, or thereafter. Shri Sanjiv Bhatt has
also claimed that he came to know from his staff later that Late
E Ashok Bhatt was stationed in Ahmedabad City Police Control
Room on 28-02-2002.
On being questioned, as to whether deliberations in CM’s
meeting or the developments in the Control Rooms were mentioned
by him in any of the reports submitted to the senior officers at any
F stage, Shri Sanjiv Bhatt has claimed that he had attended the said
meeting along with the DGP and Addl. DG (Int.) as a Staff Officer
and as such there was no necessity to submit any report to them.
Shri Sanjiv Bhatt has claimed to have received information about
a mob attack on Gulberg Society around 1130 hrs on 28-02-2002,
G and he had deputed PI Shri Bharwad of Ahmedabad Regional
Office located in Meghaninagar to go to Gulberg Society, to report
on the developing situation and inform the State IB. According to
Shri Bhatt, he had conveyed these developments to DGP and
Addl. DG (Int.) personally. In view of the fact that Late Ahesan
Jafri, Ex-MP was residing in the Gulberg Society, he (Sanjiv Bhatt)
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 245

telephonically conveyed the details about the developing situation A
to the Chief Minister directly. However, he does not recollect, as
to whether he had spoken to the Chief Minister over landline or
over the mobile phone of Shri O.P. Singh, PA to CM. Shri Sanjiv
Bhatt has stated that he attended another meeting at CM’s
residence on 28.02.2002 afternoon for the assessment of the
B
ongoing situation, which was attended to by ACS (Home), DGP,
Addl. DG (Int.), and Secretary (Home), in which the Chief Minister
had agreed to send a formal requisition to Govt. of India for
deployment of Army. He has claimed that he briefed the Chief
Minister about the ongoing developments at Gulberg Society and
also about the threat to the life of Late Ahesan Jafri and other C
residents of the Gulberg Society Shri Sanjiv Bhatt has gone to the
extent of claiming that the Chief Minister took him aside after the
meeting and informed him that he had learnt that Late Ahesan
Jafri had
--------------------------------------------------------------------------- D
Page: 407
opened fire on Hindus during earlier communal riots. According
to Shri Sanjiv Bhatt, the Chief Minister asked him to dig out all the
facts pertaining to earlier instances, wherein Late Ahesan Jafri
had opened fire during the past communal riots. Shri Bhatt claimed E
that he conveyed these facts to Shri G.C. Raiger, the then Add.
DG (lnt.). However, Shri Bhatt has stated that he could not check/
collect this information as he remained busy with certain urgent
matters connected with the riots. Shri Sanjiv Bhatt has denied
having submitted any report to his department and claimed that F
he had attended this meeting as a Staff Officer to the DGP or
AddI DG (Int.), which is incorrect as there was no post of Staff
Officer to Addl. DG (Int.).
On being questioned, as to why did he not appear as a
witness in response to a public notice issued by SIT on G
11-03-2008, he claimed that he did not disclose the same to anyone,
as it would not have been appropriate on his part to divulge any
information that he was privy to as an Intelligence Officer unless
he was under a legal obligation to do so. He has also stated that
he did not file any affidavit or appeared before any commission or
any other body enquiring into the communal riots of 2002, because H
246 SUPREME COURT REPORTS [2022] 6 S.C.R.

A he was not asked by the Govt. of Gujarat, DGP or AddI.DG (Int.)
to do so. He has denied knowledge as to whether the alleged
instruction given by the Chief Minister were passed on to the field
units by any of the officers, who had attended the meeting on 27-
02-2002. The stand taken by Shri Sanjiv Bhatt is not acceptable
on account of the fact that firstly it was essentially a law & order
B
meeting, in which many civilian officers were present and there
was nothing secret about it. Furthermore, Shri Bhatt has various
opportunities and legal obligations to disclose these facts, if true,
firstly to Shri R.B. Sreekumar, the then Addl. DG (Int.), who had
asked him to provide any oral and documentary relevant fact to
C be included in his affidavit relating to riots Incidents on behalf of
State IB required to be filed before Nanavati Commission,
Secondly, Nanavati Commission a legally constituted body under
Commission of Inquiry Act had issued a public notice calling upon
any one having knowledge about the incident of issues involved
D before it, to file an affidavit and furnish information, but Shri Sanjiv
Bhatt did not file any affidavit. Thirdly, SIT, legally constituted by
the Hon’ble Supreme Court of India had also issued a public notice
on 11.04.2008 calling upon the people to come forward and give
information relating to the riots. but Shri Sanjiv Bhatt conveniently
did not come forward. Fourthly. another opportunity was given to
E him in November, 2009, to make a statement during the course of
inquiry ordered by the Hon’ble Supreme Court of India, but Shri
Sanjiv Bhatt took the plea that it would not be professionally
appropriate on his part to divulge the exact nature of discussion
that took place during the said meeting, unless he was duty bound
F to disclose the same under legal obligation.
Shri Sanjiv Bhatt, on his own and without being summoned
appeared before the IO on 25-03-2011, i.e. two days after the
recording of his statement, along with one constable named Shri
K.D. Panth and requested that his (Bhatt’s) further statement
G should be recorded. In his further statement, Shri Sanjiv Bhatt
mentioned the names of two Assistant Intelligence Officers (AIOs)
namely, Shri Shailesh Raval and Shri K.D. Panth, who used to
accompany him to most of the meetings. He has further stated
that subsequent to the recording of his statement on 21 &
22.03.2011, he had been able to recollect that Shri K.D. Panth
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 247

had followed him to CM’s residence with the files in his staff car A
from DGP’s office, whereas he himself had accompanied DGP
Shri K. Chakravarthi in the latter’s staff car. He has also stated
that Shri K.D. Panth returned with him in his car to Police Bhavan
and remained in the office till late in the night and attended to
urgent official work. Shri Sanjiv Bhatt also informed that then
B
Shri Tarachand Yadav, was his driver who is presently attached
to Shri V.K. Mall, Joint Director, Gujarat Police Academy, Karai,
Gandhinagar. Shri Sanjiv Bhatt also disclosed that, as DCI
(Security), he was using the Govt. mobile phone no. 9825049398.
During the course of further investigation seven senior
administrative and police officers namely, Shri Ashok Narayan, C
the then ACS (Home), Shri P.K. Mishra, the then Principal
Secretary to CM, Shri K. Chakravarthi, the then DGP, Shri P.C.
Pande, the then CP Ahmedabad City, Shri Anil Mukim, the then
Addl. PS to CM, Shri K. Nityanandam, the then Secretary (Home)
and Shri Prakash S. Shah, the then Addl. Secretary (L&O), who D
had been earlier examined during 2009-10 have categorically stated
that Shri Sanjiv Bhatt, the then DCI (Security) was not present in
the said meeting held at CM’s residence on 27.02.2002 night.
During the earlier inquiry, three participants of this meeting namely
Shri Nityanandam, Shri Anil Mukim and Smt. Swarna Kanta
Verma were not asked this question while three others namely E
Shri Ashok Narayan, Shri P.C.Pande and Shri P. K. Mishra had
stated that they did not recollect. Shri P.S. Shah had not been
examined during the inquiry. However, Shri K. Chakravarthi had
---------------------------------------------------------------------------
F
Page: 408
stated at that stage also that Shri Bhatt was not present in this
meeting. They have also confirmed that no Minister/Politician was
present in the said meeting.
Smt. Swarna Kanta Varma, being ACS (Health & Family G
Deptt.) and the then acting Chief Secretary was never posted in
the Home Department and therefore, she did not know Shri Sanjiv
Bhatt, the then DCI (Security). On being shown the photograph
of Shri Sanjiv Bhatt, she has stated that she cannot recollect having
ever met or seen him in any meeting. According to Smt. Swarna
H
248 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Kanta Varma, the Chief Minister had stated in the said meeting
that incident in Godhra was very unfortunate and it should be
dealt with a heavy hand. She also does not recollect having seen
any Cabinet Minister in the said meeting. All the participants of
the meeting held on 27.02.2002 night, have denied that CM had
uttered any words on the lines that Gujarat Police had been
B
following the principle of balancing the actions against the Hindus
and Muslims while dealing with the communal riots in Gujarat and
that the situation warranted that Muslims be taught a lesson to
ensure that such incident do not recur ever again and that the
emotions were running very high amongst the Hindus and they be
C allowed to vent their anger.
There is unanimity amongst all the participants of the said
meeting that no Minister/politician was present in the meeting.
Shri Bhatt has contended that Shri P.C. Pande, the then CP
Ahmedabad City had strongly opposed the Government’s decision
D regarding transportation of the dead bodies to Ahmedabad City,
as the same was likely to lead to communal riots and that his
views were supported by Shri K. Chakravarthi, the then DGP.
His version stands contradicted by Shri P.C. Pande, the then CP,
Ahmedabad City, who had stated that the sum and the substance
of the meeting was that the dead bodies were being brought to
E Ahmedabad City with a view to facilitate the relatives of the
deceased to identify and claim the same.
Shri K. Chakravarthi, the then DGP has clearly stated that
the decision of the Govt. To bring the dead bodies of Godhra
victims at Ahmedabad City, was not opposed by anyone on the
F ground that a large number of victims belonged to Ahmedabad
and nearby places, which were easily approachable, from
Ahmedabad. This would go to show that Shri Sanjiv Bhatt was
giving an imaginary account of the deliberations of the meeting
and did not know as to what exactly transpired there. Further, it
G has been contended by Shri Sanjiv Bhatt that both DGP and CP,
Ahmedabad City had tried to impress upon the Chief Minister
that the band call given by the VHP on 28-02-2002, which was
supported by the ruling party BJP was not a good idea as far as
the Law & order situation of the State was concerned and that
the Chief Minister was not convinced by their arguments. In this
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 249

regard, Shri K. Chakravarthi, the then DGP has stated that in the A
night of 27.02.2002, he did not know that the bandh call given by
the VHP was supported by the ruling party BJP and as such there
was no question of any such opposition by him. Shri P.C. Pande
has also stated that on 27.02.2002, he did not know that the bandh
was supported by the BJP and came to know about it only on
B
28.02.2002, through newspaper reports. All the participants of
the meeting have stated that the Chief Minister had expressed
the apprehension that the Godhra incident was very serious and
bound to affect the public at large, as a result of which there
could be repercussions and therefore, adequate bandobast was
needed to avoid any untoward incident. C
Shri Sanjiv Bhatt has claimed that he mentioned the
fact of having attended the said meeting on 27-02-2002 night
in his movement diary. However, the State IB has reported
that no such diary was being submitted by Shri Sanjiv Bhatt,
Shri G.C. Raiger, the then Addl. DG (Int.) has stated that D
there was no such system of submitting any monthly
movement diary by DC and that Shri Sanjiv Bhatt had never
submitted any such diary. Shri Sanjiv Bhatt have claimed to
have briefed Shri G.C, Raiger, the then Addl. DG (Int.) on
28.02.2002, at about 1000 hrs about the alleged meeting
held by the Chief Minister and also about the illegal E
instructions given by the latter. This claim is absolutely
false and is contradicted from the call detail records of the
Govt. mobile phone no. 9825049398 of Shri Sanjiv Bhatt,
which show that the location of Shri Sanjiv Bhatt was at
Memnagar, Ahmedabad till 10:57:43 hrs on 28.02.2002. F
Further, Shri Sanjiv Bhatt has claimed that he did not submit
any report about the meeting held by the Chief Minister at
his residence on 27.02.2002 night, as he attended the
meeting as a Staff Officer to DGP/Addl. DG (Int.). This
contention put forward by Shri Sanjiv Bhatt is absurd
because there was no post of Staff Officer to Addl DG (Int.) G
and Shri K. Chakravarthi has denied that Shri Sanjiv Bhatt
was posted as Staff Officer to DGP, as the Staff Officer was
of the rank of Dy. SP and not SP Shri Sanjiv Bhatt has
contended that he did not file affidavit nor appeared as a
witness before the SIT in response to a public notice issued H
250 SUPREME COURT REPORTS [2022] 6 S.C.R.

A by the SIT, as it would not have been appropriate on his
part
---------------------------------------------------------------------------
Page: 409
B to divulge any information that he was privy to as an
intelligence officer unless he was under a legal obligation
to do so. In this connection, it would not be out of place to
mention here that assuming for the time being that Shri
Sanjiv Bhatt attended the alleged meeting of 27.02.2002
the same was essentially a law & order meeting attended
C by the various officials of State Administration and therefore
the question of oath of secrecy or application of the Official
Secrets Act does not arise because it was neither a secret
meeting nor would the revelation of the contents of the
said meeting jeopardized the public interest. Shri Sanjiv
D Bhatt has used the weapon of the Official Secrets Act only
as a pretext with a view to justify a long delay of nine years
just because an official of the intelligence unit attended a
law & order meeting, the same does not became a secret
meeting for which a privilege of secrecy is being claimed
by Shri Sanjiv Bhatt. In any case, Nanavati Commission and
E SIT have been set up under the provisions of law of the
land and all the citizens/ officials are legally bound to divulge
the information available with them which are relevant to
the terms of reference/ crimes of the Commission being
investigation by SIT.
F In view of this, the explanation put forward by Shri
Sanjiv Bhatt does not hold good Shri Sanjiv Bhatt had gone
to the extent of saying that he learnt from the other staff
that Late Ashok Bhatt was stationed in Ahmedabad City
Police Control Room, which has no value, whatsoever, being
G the hearsay evidence. The claim of Shri Sanjiv Bhatt that
he had opposed the bringing of dead bodies to Ahmedabad
from Godhra, is belied from the fact that all the participants
of the said meeting have categorically stated that Shri Sanjiv
Bhatt did not attend the said meeting.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 251

Shri Sanjiv Bhatt has specifically claimed that he had A
accompanied the DGP Shri K. Chakravarthi to the
residence of the Chief Minister in the night of 27.02:2002
in latter’s staff car, which has been denied by Shri
K. Chakravarthi. The statement of Shri K. Chakravarthi
has been supported by the entry made by Shri
B
K. Chakravarthi in his staff car log book written by him on
the relevant date in his hand, which show that two persons
(1+1), i.e. DGP and his PSO used the car on 27.02.2002.
The version of Shri K. Chakravarthi is further corroborated
by his PSOs namely Shri Dilip Ahir and Shri Dharmpal Yadav,
who have categorically stated that Shri Sanjiv Bhatt never C
accompanied the DGP in his staff car.
It is a fact that Shri Sanjiv Bhatt did send four wireless
messages on 27-02-2002 to all the jurisdictional officers to take
all precautionary measures to prevent communal riots as Godhra
incident was likely to have State wide repercussions. These D
wireless messages were sent by him as DCI (Communal) as Shri
P.B. Upadhyay, the then DCI (Communal) was on casual leave
on that day i.e. 27-02-2002. However, he had resumed duty in the
evening. Significantly, on 28-02-2002, all the concerned wireless
messages were sent by Shri P.B. Upadhyay, the then DCI
(Communal), who was dealing with the subject. Shri Sanjiv Bhatt E
as DCI (Security) had also sent a fax message on 28-02-2002, to
Home Secretary, Gandhinagar with information to PS to CM, PS
to MoS (Home), DGP and Commissioner of Police, Ahmedabad
City, in which he had intimated about a Hindu mob attack on
Gulberg Society resulting into death of atleast 18 persons including F
Late Ahesan Jafri, Ex-MP and its family members and the attack
was continuing. Shri Bhatt had expressed his apprehension that
this incident could have State wide ramifications. Though no time
had been mentioned on this message, yet it appears that this fax
message was sent only after the killings had taken place and the
Gulberg Society had been set on fire. In all probability this message G
had been sent on the basis of the fax message sent by PI C.J.
Bharwad, the then PI, Ahmedabad City Regional State IB office
at 1700 hrs.

H
252 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Shri Sanjiv Bhatt has further contended that in view of the
fact that Late Ahesan Jafri, Ex-MP was residing in Gulberg Society,
he had telephonically conveyed the details directly to the Chief
Minister either on landline or on the mobile phone of Shri O.P.
Singh, PA to CM. However, he has not been able to specify on
which telephone he rang up the Chief Minister. Shri O.P. Singh
B
has denied that he received any call from Shri Sanjiv Bhatt. The
call details of Gandhinagar tower are not available as the same
had not been requisitioned by Shri Rahul Sharma, the then SP,
during investigation of the riot cases Notably there is no practice
in Gujarat of SP level officers speaking directly to CM over phone.
C Further, Shri G.C. Raiger the then Addl. DG (Int.), who was very
much in office on 28.02.2002, has stated that this was totally false
and that Shri Sanjiv Bhatt had never informed him about it.
Shri C.J. Bharwad, the then PI, State IB, Ahmedabad
Region has stated that on 28.02.2002, on the basis of information
D collected by him during the riots, he had gone to Gulberg Society
Meghaninagar of his own and passed on the various information
reports collected by him
---------------------------------------------------------------------------
Page: 410
E
to State IB Control Room. He has further stated that around 1215
hrs on 28-02-2002, he had sent a message to State IB Control
Room that since Muslims reside in Gulberg Society in
Meghaninagar area, a strict watch should be kept there. He has
contradicted the statement made by Shri Sanjiv Bhatt, the then
F DCI (Security), and has denied to have any telephonic discussions
with him about the situation in Gulberg Society in as much as the
subject concerned the “Communal” Desk of IB was being looked
after by Shri P.B. Upadhyay, the then DCI(Communal). He has
further stated to have passed on a message at 1450 hrs on
G 28.02.2002, that a mob of 3000 rioters had surrounded Gulberg
Society. On 28-02-2002 itself, he had passed on another message
at 1700 hrs that a mob of 5000 rioters had surrounded and set fire
to the Gulberg Society, in which several persons including Late
Ahesan Jafri, Ex-MP had been burnt alive and that police
deployment was required. The version of Shri Bharwad belies
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 253

the testimony of Shri Sanjiv Bhatt, the then DCI (Security), who A
has claimed that he had given directions to Shri Bharwad to go to
the Gulberg Society and give the latest updates and that Shri
Bharwad was in constant touch with him.
Investigation further revealed that the headquarters of State
Intelligence Bureau is located at Gandhinagar and is headed by B
an Addl. DG, assisted by IGP (Security), DIG (Political &
Communal) and three Deputy Commissioners of Intelligence and
other officers and supporting staff. Besides State IB, there are
intelligence units headed by Inspectors/ Dy SsP working
independently in the Districts. The State IB has been entrusted
with the duties of collection of intelligence in respect of maintenance C
of law & order including communal intelligence in Gujarat State.
In brief, the functions, of the State IB relate to collection and
collation of information regarding political, industrial and other
similar development in the State, verification of antecedents,
protection and security of the VIP’s, watch over anti-national D
activities, movement of foreigners and all other matters pertaining
to the internal security, collection of intelligence regarding all types
of communal activities and to keep the Govt. informed of all these
activities from time to time.
In February, 2002, Shri G.C. Raiger was posted as Addl. E
DG (Int.) and was assisted by Shri O.P. Mathur, IGP (Security &
Admn.). In addition, there was another post of IGP (Political &
Communal), which was lying vacant due to the death of Shri
S.Kumar in January, 2002. There were three SP rank officers out
of which, Shri Sanjiv Bhatt was posted as DCI (Security), Shri
P.B. Upadhyay as DCI (Political & Communal) and the third post F
was DCI (Admn.) which was lying vacant. It has further come to
light that Shri G.C. Raiger was on casual leave from 26.02.2002
to 28.02.2002 and was away to Rajasthan, but returned on
27.02.2002 evening. Shri P.B. Upadyay, the then DCI (Communal)
was on leave from 26.02.2002 onwards to arrange for sacred G
thread ceremony of his grandson fixed for 01.03.2002. However,
Shri O.P. Mathur, IGP had called him up on 27.02.2002 afternoon,
informed him about the Godhra incident and instructed to resume
duties immediately. Accordingly, Shri Upadyay had resumed duties
on 27.02.2002 evening. However, in his absence, his work was
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254 SUPREME COURT REPORTS [2022] 6 S.C.R.

A being looked after by Shri Sanjiv Bhatt, who was the only other
SP rank officer in the State IB.
Shri G.C. Raiger has stated that on his return to Ahmedabad
on 27-02-2002, he had come to know about the Godhra incident
and had telephonically informed DGP Shri K. Chakravarthi on
B 27.02.2002 evening that he would cut short his leave and come to
Gandhinagar, if necessary, to which the DGP asked him to join on
28.02.2002. Shri Raiger has denied having been informed by the
DGP about the meeting called at CM’s residence on 27.02.2002
late in the night. Shri Raiger denied having received any information
about the meeting from either the State IB Control Room, State
C Control Room or even Shri Sanjiv Bhatt, the then DCI (Security).
Shri O.P. Mathur has also denied that he received any such
information about a meeting called at CM’s residence on
27.02.2002 night. Shri P.B. Upadhyay, the then DCI (Communal),
who had resumed the duties on 27.02.2002 evening, and used to
D look after Communal and Political section and was the concerned
officer to be associated with the said meeting, had also no
information about the said meeting thereby suggesting that no one
from the intelligence was required to attend the said meeting.
Shri K. Chakravarthi, the then DGP has stated that he had
E gone to studios of Door-Darshan, Ahmedabad City on 27-02-2002
late in the evening, for the telecast of an appeal to the general
public to maintain communal harmony and peace, when he received
a message from State Control Room that CM had called for a
meeting at his residence at Gandhinagar around 2230 hrs. Shri
Chakravarthi has stated that he straight away went to CM’s
F residence at Gandhinagar and reached there a little earlier and
waited as CM had not arrived from Godhra by
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Page: 411
G that time. According to Shri Charkravarti, Smt. Swarna Kanta
Varma, the then acting CS, Shri Ashok Narayan, the then ACS
(Home), Shri P.C. Pande, the then CP, Ahmedabad City and Shri
K. Nityanandam, the then Secretary (Home) arrived only
subsequently. Shri Chakravarthi has categorically denied having
given any instructions to Shri Sanjiv-Bhatt, the then DCI (Security)
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 255

to attend the aforesaid meeting. He has further stated that Shri A
Sanjiv Bhatt did not accompany him to CM’s residence in his car
from DG’s office, as he (DGP) did not visit office at that time.
He has also stated that in case Shri Raiger was available at
Ahmedabad, he would have given instructions to State Control
Room to call him. According to Shri Chakravarthi even otherwise,
B
Shri O.P. Mathur, the then IGP (Admn. & Sec.) was available
and could have been called to attend the meeting rather than asking
Shri Sanjiv Bhatt, a junior officer of SP level to attend the said
meeting.
Shri Sanjiv Bhatt, the then DCI (Security) has named
two AIOs namely Shri K.D. Panth and Shri Shailesh Raval, C
who used to accompany him to such meetings along with
the files. After Shri Sanjiv Bhatt’s further statement was
recorded at his own request on 25-03-2011, he insisted that
Shri K.D Panth, who was accompanying him and was waiting
outside, should also be examined. He Stressed that Shri D
Panth should be examined in his presence. However, Shri
Bhatt was informed that Shri K.D. Panth would be called
on a date convenient to the IO and examined. Accordingly,
Shri Panth was informed on 04-04-20 11, to attend SIT office
on 05-04-2011, for his examination.
E
Shri K.D. Panth in his examination has stated that he
was on casual leave on 27-02-2002. Further, he has denied
that he followed Shri Sanjiv Bhatt, the then DCI (Security)
to CM’s residence on 27-02-2002 night. However, he has
stated that Shri Sanjiv Bhatt had called him to his residence
on 24-03-2011 night and informed that he was going to make F
a statement before the SIT that he (K.D. Panth) had gone
to attend a meeting at CM’s residence on 27-02-2002 night,
and that he (Panth) had been called at State IB office and
be ready with the files for the said meeting. Shri Sanjiv Bhatt
further informed Shri Panth that he should accompany him G
to SIT office on 25-03-2011, and make a statement on these
lines.
During his examination, Shri Panth further stated that he
has contacted Shri Sanjiv Bhatt over his landline telephone
no.27455117 from mobile no. 8140657775 (belonging to one of his H
256 SUPREME COURT REPORTS [2022] 6 S.C.R.

A friends) after he was called for examination scheduled for
05-04-2011. Shri Sanjiv Bhatt called him at his residence on 04-
04-2011 at 2030 hrs. At his residence, Shri Sanjiv Bhatt informed
Shri Panth that he has made a statement to the SIT that he (Bhatt)
had accompanied DGP. Shri K. Chakravarthi in his official car to
CM’s office from DGP’s office on 27-02-2002 night and that he
B
(Shri Panth) had followed him in his (Shri Sanjiv Bhatt’s) staff car
along with the files. Shri Sanjiv Bhatt asked Shri Panth to make a
statement accordingly.
Subsequently, Shri K.D. Panth lodged a complaint
against Shri Sanjiv Bhatt with the local police to the effect
C that Shri Sanjiv Bhatt had influenced, detained, put severe
pressure and compelled him to sign an affidavit containing
false/wrong and incorrect facts, in pursuance of which a case
no. I CR No.149/2011 was registered u/s 189, 193, 195,
341, 342 IPC with Ghatlodia police station, Ahmedabad City,
D Gujarat State. Shri Sanjiv Bhatt has since been arrested in
this case and the matter is under investigation. In view of
this, no reliance can be placed upon the version of Shri
Sanjiv Bhatt.
This conduct of Shri Sanjiv Bhat, in arranging,
E prompting and controlling the witness to corroborate his
statement is highly suspicious and undesirable. Shri Sanjiv
Bhatt also contacted Shri Shailesh Raval on 28-03-2011/
29-03-2011, over mobile phone no.9825688223 of one Shri
NJ. Chauhan, a clerk in CM’s Security and informed him
that he would be called by SIT for his examination. Shri
F Sanjiv Bhatt also asked Shri Shailesh Raval that he had
worked with him in Security Branch for a long time and was
aware that he (Sanjiv Bhatt) used to attend meetings, to
which Shri Raval reacted by saying that he had accompanied
him in Border Security Nodal Committee meetings, which
G used to deal with the Border Security only. Shri Raval also
informed Shri Sanjiv Bhatt that he never worked in the
Communal Branch and was not aware of anything about it.
Shri Sanjiv Bhatt thereafter disconnected the phone. Shri
Shailesh Raval, PI later sent a complaint in writing to the
Chairman, SIT that he feared reprisal from Shri Sanjiv Bhatt
H as he had refused to support the false claims of Shri Bhatt.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 257

This is yet another attempt on the part of Shri Sanjiv Bhatt A
to tutor a witness to depose in a particular manner so as to
support the statement made by him, which further makes
his claim of having attended the meeting at CM’s residence
on 27-02-2002 false.
--------------------------------------------------------------------------- B
Page: 412
Shri Tarachand B. Yadav, driver constable in SRP Group-
XII, who had been dismissed from service on the charge of getting
employment in Gujarat Police on the basis of false and forged
certificate, has stated that he used to drive the staff car allotted to C
Shri Sanjiv Bhatt, the then DCI (Security) during February-March,
2002. However, he does not remember the registration number of
the staff car. Shri Yadav could not give the name of Personal
Security Officer of Shri Sanjiv Bhatt, the then DCI (security).
However, he has stated that he recollects that Shri Sanjiv Bhatt, D
the then DCI (Security) had gone to CM’s residence in a three
star car with either DGP or some ADGP from Police Bhavan and
that he had followed him in his staff car, in which Shri K.D. Panth,
the then AIO, State IB sat with some files. He has also stated
that Shri Sanjiv Bhatt, the then DCI (Security) returned after about
25 minutes and he took him to Police Bhavan, where he worked E
till midnight i.e. 0030 hrs and then drove him back to his residence
at Ahmedabad. Shri Yadav could not say as to whether Shri Sanjiv
Bhatt, the then DCI (Security) accompanied DGP or some ADGP
rank officer. He has denied knowledge, as to whether Shri Sanjiv
Bhatt went inside CM’s office to attend the meeting or not, as he F
was waiting outside. He has also stated that on 28-02-2002, Shri
Sanjiv Bhatt reached Police Bhavan at about 0900 hrs and worked
in his office and did not go out to attend any meeting at CM’s
house. On 28-02-2002, he has stated that he started from
Gandhinagar dropped Shri Sanjiv Bhatt at his residence at about
1900 hrs. However, he could not recollect the details of the various G
events of 1st, 2nd & 3rd March, 2002 due to passage of time.
The version of Shri Tarachand B. Yadav is contradicted by
Shri K.D. Panth, who has denied to have followed Shri Sanjiv
Bhatt in his staff car driven by Shri Tarachand Yadav. Besides
H
258 SUPREME COURT REPORTS [2022] 6 S.C.R.

A that he is an unreliable witness due to his background. He has
been dismissed from service due to his own misconduct. Moreover,
he has admitted to have gone to the residence of Shri Sanjiv Bhatt,
the then DCI (Security) on 17-04-2011 afternoon, for getting a
briefing before making a statement to SIT. The call details of his
mobile phone clearly show that he was in touch with Shri Sanjiv
B
Bhatt, the then DCI (Security). Even when he was being
interrogated in SIT office, Shri Sanjiv Bhatt was repeatedly
contacting him over his mobile phone to which he did not respond.
In addition, the version of Shri Tarachand Yadav about the
movements of Shri Sanjiv Bhatt on 28-02-2002, are proved to be
C false in as much as Shri Sanjiv Bhatt did not come to Gandhinagar
at 0900 hrs, as the call detail records of his official mobile phone
show his location at Ahmedabad City till 1057 hrs. Shri Tarachand
Yadav further contradicts the version of Shri Sanjiv Bhatt, who
claims to have attended a meeting on 28-02-2002 at 1030 hrs, at
CM’s residence. The overall impression left in the matter is that
D
Shri Sanjiv Bhatt has introduced him as a false witness with a
view to corroborate his own false version about having attended
a meeting at CM’s residence on 27-02-2002 night, whereas in
fact Shri Tarachand Yadav does not recollect anything about the
events of 27-02-2002 onwards. Moreover, he is a motivated
E witness, who has got an axe to grind against the Govt. on account
of his dismissal from service. In view of this no reliance can be
placed upon his evidence.
During further investigation, PSOs of the then DGP Shri
K. Chakravarthi were examined. PSI Dilip Jivaram Ahir and
F Head constable Dharampal Jagaram Yadav stated that they had
never seen Shri Sanjiv Bhatt sitting in the vehicle along with DGP.
Shri G.C. Raiger, the then Addl. DC, (Int.) has stated that
Shri Sanjiv Bhatt was never posted as Staff Officer to Addl. DG
(Int.), because there is no post like that in the State IB. Further,
G Shri Sanjiv Bhatt could not have been a Staff Officer to the DGP,
as Late V.S. Shinde, Dy.SP was posted as Staff Officer to the
DGP. Shri Raiger has further stated that Shri Sanjiv Bhatt used to
accompany him in the meetings called by the Chief Minister
sometime, but was normally made to wait outside with the relevant
files/information and did not join the meetings. Shri Raiger was
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 259

unable to recollect any meeting called by the Chief Minister, which A
Shri Sanjiv Bhatt attended along with him. Shri Raiger has further
stated that on 28-02-2002, he did come to know about the meeting
called by the Chief Minister at his residence on 27-02-2002, but
Shri Sanjiv Bhatt did not inform him of having attended the said
meeting and also about its agenda or the matters discussed in the
B
said meeting.
Shri R. B. Sreekumar formerly ADGP Intelligence, in his
interview given to the Star Hindi News Channel at 12.35 hrs on
22.04.2011 has stated that Shri Sanjiv Bhatt, DCI (Security) had
never informed him about having attended a meeting at CM’s
residence on 27.02.2002. He has further stated that at the time of C
filing an affidavit before Nanavati Shah Inquiry Commission, he
had asked all the officers of State IB to provide him with the
relevant
---------------------------------------------------------------------------
D
Page: 413
information and documents in respect of Godhra riots but Shri
Sanjiv Bhatt did not give him any information about the said meting.
According to Shri Sreekumar, Shri Sanjiv Bhatt was handling
security portfolio and communal portfolio was being looked after E
by another officer. Shri Sreekumar has also stated in the interview
that it was a normal procedure that if a junior officer had attended
a meeting on behalf of senior, he was required to submit a report
to his superior and that Shri G.C. Raigar, the then ADGP (Int)
should be asked about it. As already stated above, Shri Raigar
has denied having received any information/report from Shri Sanjiv F
Bhatt in this regard.
The call detail records of the Govt. mobile phone
no.9825049398, allotted to Shri Sanjiv Bhatt show that on
27-02- 2002, Shri Sanjiv Bhatt remained at Ahmedabad till
about 1120 hrs and returned to Ahmedabad at 1925 hrs. G
He attended to various calls till 2040 hrs and thereafter,
there is no record of any calls made or received by him.
However, the call details record do not indicate that he was
going towards Gandhinagar on or at 2040 hrs. Further, on
28-02-2002, as per call details the location of Shri Bhatt
H
260 SUPREME COURT REPORTS [2022] 6 S.C.R.

A was noticed at Ahmedabad till 10:57:43 hrs and again at
Ahmedabad at 2056 hrs. The claim of Shri Sanjiv Bhatt that
he had attended a meeting at CM’s residence on 28-02-
2002, at 1030 hrs is, therefore, proved to be false and
incorrect. CM’s residence is at Gandhinagar, more than 25
KMs from his residence at Memnagar, Ahmedabad, and it
B
normally takes 30 to 45 minutes to reach Gandhinagar. His
further claim that he had seen Late Ashok Bhatt and Shri
I.K. Jadeja, the then Ministers in the DGP’s office at about
1100 hrs on 28-02-2002, is also belied from the call detail
records in as much as the location of the mobile phone of
C Shri Sanjiv Bhatt was at Prerna Tower, Vastrapur-1,
Ahmedabad, which happened to be at a distance of 1.5 Kms
approximately from his residence and by any stretch of
imagination Shri Bhatt could not have reached Police
Bhavan, Gandhinagar before 1130 hrs.
D Shri Ashok Narayan, the then ACS (Home) has stated that
a meeting was held by the Chief Minister in the morning of
28-02-2002, which was attended by acting Chief Secretary, DGP
and Addl. DG (Int.) and the matter relating to the calling of Army
was also discussed, but no decision was taken and it was decided
to watch the situation. He has categorically denied that Late Ashok
E Bhatt and Shri I.K. Jadeja, Ministers had attended the said meeting.
The claim of Shri Sanjiv Bhatt that he had attended the said meeting
at 1030 hrs at CM’s residence is proved to be false from the
location of his mobile phone, which was at Prerna Tower,
Vastrapur-I, Ahmedabad City at 10:57:43 hrs. Moreover, his
F contention that the aforesaid two Ministers were present in the
said meeting is proved to be false from the statement of Shri
Ashok Narayan, the then ACS (Home), who has categorically
stated that they were not present in the said meeting.
As regards the alleged utterances made by the Chief
G Minister in the meeting called on 27-02-2002 night at his
residence, it may be mentioned here that Shri R.B.
Sreekumar, the then Addl. DG (Int.) had claimed that Shri
K.Chakravarthi, the then DGP had informed him on
28-02-2002 that the Chief Minister had said in the meeting
that “KOMI HULLADO MA TAME POLICE BARABARI
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 261

KARO CHO, TAME BE HINDU NE PAKDO TO TAME BE A
MUSALMANO NE PAN PARDO CHO, HAVE EM NAHI
CHALE. HINDUONO GUSSO UTTARWA DO.” (In
communal riots police takes action against Hindus and
Muslims on one to one basis. This will not do now-allow
Hindus to give vent to their anger.) Shri Chakravarthi as
B
denied that he held any such talks with Shri R.B. Sreekumar.
Even otherwise, the version of Shri R.B. Sreekumar
becomes hearsay. However, on the other hand Shri Sanjiv
Bhatt, who insists that he was in the said meeting, has
alleged that the Chief Minister had said “that for too long
the Gujarat Police had been following the principle of C
balancing the actions against the Hindus and Muslims while
dealing with the communal riots in Gujarat. This time the
situation warranted that the Muslims be taught a lesson to ensure
that such incidents do not recur ever again. The Chief Minister
Shri Narendra Modi expressed the view that the emotions were
D
running very high amongst the Hindus and it was imperative that
they be allowed to vent out their anger”. Assuming for the time
being that the Chief Minister did say so, there is a material
difference between the two versions in as much as Shri Sanjiv
Bhatt has tried to improve his version by way of addition “that this
time the situation warranted, that the Muslims be taught a lesson E
to ensure that such incidents do not recur ever again” Since there
is no independent corroboration of the version of either Shri R.B.
Sreekumar or Shri Sanjiv Bhatt, no reliance can be placed on
either of them. It is relevant to mention here that the Ld. Amicus
Curiae has agreed with the findings of SIT that the aforesaid
F
statement of Shri R.B. Sreekumar was not admissible in evidence.
Shri Sanjiv Bhatt has not been able to give any
satisfactory explanation that when he was in possession of
plethora of information and was an eyewitness to some of
the important events,
G
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Page: 414
then why did he not file an affidavit before Nanavati
Commission and also did not appear as a witness in
H
262 SUPREME COURT REPORTS [2022] 6 S.C.R.

A response to the Govt. circular before any legal authority.
He does not explain as to why he did not respond to a public
notice issued by SIT on 11-04-2008. However, on 21/22—
03-2011, when he made a statement, u/s 161 Cr.PC before
the SIT, it is not understood as to by whom and how the
claimed secrecy was waived. His silence for a period of
B
more than nine years without any proper explanation
appears to be suspicious and gives an impression that he
is trying to manipulate the things to his personal advantage
to settle his service matters.
During the course of further investigation a complaint was
C received from Shri Dharmesh P. Shukla, an accused in I CR No.67/
2002 of Meghaninagar P.S. (Gulberg Society Case), who is facing
trial, in which he contended that there was no justification to record
the statement of Shri Sanjiv Bhatt on account of the following
reasons:-
D (i) That Shri Sanjiv Bhatt, IPS is known to be a police officer of
dubious character facing several criminal cases of serious
nature and whenever he wants a favour from the Govt., he
creates a situation whereby the Govt. is compelled to help
him.
E (ii) Thai Shri Sanjiv Bhatt, who had not even whispered about
any such meeting in the past contemporaneously, surprisingly
came out with a new theory that he was a part of the meeting.
(iii) That this sudden stand taken by Shri Sanjiv Bhatt after nine
years of silence and his insistence that his statement be
F recorded only after an offence is registered, is at the behest
of some person’s with vested interests.
(iv) That it is known to almost everyone in Gujarat that Shri Sanjiv
Bhatt is famous for his pressure tactics to get illegal favours.
Since the allegations leveled by the complainant were
G
serious, a communication was sent to the Govt. to make available
the details of all complaints/pending inquiries/prosecutions/
departmental proceedings etc. against Shri Sanjiv Bhatt. A detailed
reply has been received from the Govt. of Gujarat, which shows
that Shri Sanjiv Bhatt has faced a number of departmental inquiries
H and he was granted three promotions to the rank of Junior
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 263

Administrative Grade, Selection Grade and DIG Grade on one A
day i.e. 21-09-2007, after dropping of three departmental inquiries
pending against him vide orders dated 06-08-2005, 03-09-2005 &
24-07-2006. Shri Sanjiv Bhatt, who is eligible for the IGP grade
has not been promoted because of the departmental inquiries and
criminal cases pending against him. A charge-sheet served upon
B
him on 29-12-2010, for irregularities in police recruitment under
his Chairmanship as SP, Banaskantha is still pending.
It has further come to light that while handling a law and
order situation during his posting as ASP Jamnagar in the year
1990, Shri Sanjiv Bhatt committed police atrocities on peaceful
and innocent villagers belonging to a particular community at a C
place called Jam Jodhpur. In the beatings by police, one person
was killed. The victims included a pregnant woman, two assistant
engineers of Irrigation, department and one Circle officer of
Revenue Department. Shri Bhatt applied provisions of draconian
law TADA against the innocent persons and arrested 140 D
individuals under this Act. Due to public pressure, the Government
got an inquiry conducted from a retired Judicial officer into the
incident and Shri Bhatt was found guilty of (a) misuse of TADA
(b) police atrocities and (c) unnecessary imposition of curfew for
70 hours leading to hardship and harassment to the people.
E
It has also come to light that the criminal case relating to
death of a person due to police atrocities in the incident was
investigated by State CID (Crime) against Shri Sanjiv Bhatt and
others. On completion of investigation, the I0 sought prosecution
sanction from the Government u/s 197 Cr.PC. which was declined
and therefore, a closure report was filed in the competent court. F
However, the Court rejected the closure report on 20.12.1995
and took cognizance. The State Government filed a Criminal
Revision Application in the Sessions Court, which was rejected.
A case u/s 302,323,506(1), 114 of IPC has now been committed
to Sessions Court, Jamnagar and is presently pending with the G
Fast Track Court, Jam-khambhalia for framing of charges against
Shri Sanjiv Bhatt and others. Significantly, Gujarat High Court
awarded a compensation of Rs.1,50,000/- to the victim who had
died due to police atrocities in the above case.
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264 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Page: 415
Another criminal complaint was filed against Shri Sanjiv
Bhatt, while he was posted as SP, Banaskantha District in 1996
by Shri Sumersingh Rajpurohit, an Advoçate practicing at Pali,
Rajasthan and a criminal case was registered against Shri Sanjiv
B Bhatt & others vide FIR No.403/96 dated 18-11-1996 u/s 120B,
195, 196,342, 347,357,365, 388,458,482 IPC and Sec. 58 (1) & 58
(2) of NDPS Act. On completion of the investigation, a chargesheet
was filed against Shri Sanjiv Bhatt & others u/s 114, 120B, 323,
342, 348, 357, 365,368, 388, 452, 201 & 482 IPC and Sec. 9, 17,
18, 29, 58(1): & 58 (2) r/w Sec. 37 of NDPS Act in the court of
C Spl. Judge, NDPS Act, Jodhpur, Rajasthan. The allegations in brief
are that the complainant Shri Surnersingh Rajpurohit, Advocate
was occupying a property as a tenant in Pali (Rajasthan), which
was owned by a lady, who happened to be a sister of Shri R.R.
Jain, a sitting Judge of Gujarat High Court. As per the said criminal
D complaint Shri Sanjiv Bhatt and his subordinate police officers
planted 1½ kg of Narcotic drug in one room in a hotel at Palanpur,
Gujarat, which was shown as occupied by the said complainant
though he was at Pali (Rajasthan) at that time. The said Advocate
was abducted at midnight, on the instructions of Shri Sanjiv Bhatt
by his subordinate police officers of Gujarat police, who went
E from Palanpur, Gujarat to Pali (Rajasthan) to abduct him. The
said Advocate was brought to Palanpur, Gujarat and pressurized
by Shri Sanjiv Bhatt and his subordinate police officers to vacate
the said property by showing him arrested under NDPS offence.
The said Advocate, while in the custody of Gujarat Police and
F due to police torture, vacated the property and physical possession
of the property was handed over to the sister of Shri R.R. Jain,
Judge of Gujarat High Court. Shri Sanjiv Bhatt and his subordinate
police officers thereafter released Shri Surnersingh Rajpurohit on
08-05-1996, by filing a report u/s 169 Cr.PC. in which it was
mentioned that Shri Sumersingh could not be identified in the Test
G Identification Parade. Quashing Petitions were filed in this matter
by the accused persons in Rajasthan and Gujarat High Courts,
but the same had been dismissed. The matter is now pending
before the Hon’ble Supreme Court of India.
In the meantime, on the complaint of Shri Sidheshwar
H Puri, Secretary, Bar Association, Pali (Rajasthan), National
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 265

Human Rights Commission, taking a very serious view of A
this false case under NDPS Act, vide its order dated
15-09-2010 asked Govt. of Gujarat to pay a sum of Rs. one
lakh as monetary relief to Shri Sumersingh, Advocate Pali.
Significantly, Gujarat Vigilance Commission recommended
twice on 15-07-2002 and 19-10-2006 that Shri Sanjiv Bhatt should B
be placed under suspension for his professional misconducts, but
the Govt. of Gujarat did not do so.
In view of the aforesaid position, it can be inferred
that Shri Sanjiv Bhatt is facing a lot of problems in service
matters and has got an axe to grind against the Govt. of C
Gujarat and, therefore, his evidence is ill motivated and
can not be relied upon.
Government of Gujarat vide its letter dated
22-06-2011 forwarded a set of emails exchanged between
Shri Sanjiv Bhatt, DIG, Gujarat Police and certain individuals D
during April & May 2011. It was mentioned in the above
letter that during the course of an inquiry instituted against
Shri Sanjiv Bhatt, IPS by DG (Civil Defence), Gujarat
regarding misuse of official resources, some revelations
have been made having direct bearing on the cases being
monitored by SIT. The material forwarded by Govt. of E
Gujarat has been scrutinised and the salient features of the
same are summarized as below:-
(1) That top Congress Leaders of Gujarat namely Shri
Shaktisinh Gohil, Leader of Opposition in Gujarat
Legislative Assembly and Shri Arjun Modhvadia, F
President of Gujarat Pradesh Congress are in constant
touch with Shri Sanjiv Bhatt, DIG. They are providing
him “Packages”, certain materials and also legal
assistance Further, on 28-04-2011, Shri Sanjiv Bhatt
exchanged mails with Shri Shaktisinh Gohil and the G
former gave points for arguments in Hon’ble Supreme
Court matter, allegations to be made against the
members of SIT and to establish that the burning of a
coach of Sabarmati Express at Godhra Railway Station
was not a conspiracy. From the emails, it appears that
H
266 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Shri Sanjiv Bhatt was holding personal meetings with
senior congress leaders as well. In one of the emails,
he even mentions that he was “under exploited” by
the lawyer representing Congress before Nanavati
Commission of Inquiry.
B ---------------------------------------------------------------------------
Page: 416
(2) That Shri Sanjiv Bhatt had been persuading various
NGOs and other interested groups to influence the Ld.
Amicus Curiae and the Hon’ble Supreme Court of India
C by using “Media Card” and “Pressure Groups”.
(3) Shri Sanjiv Bhatt had been exchanging emails with one
Nasir Chippa and in the email dated 11-05-2011 Shri
Bhatt has stated that he (Nasir Chippa), should try to
mobilize support/pressure-groups in Delhi to influence
D Ld. Amicus Curiae Shri Raju Ramchandran in a very
subtle manner. In another email dated 18-05-2011, Shri
Sanjiv Bhatt had requested Shri Nasir Chippa to
influence Home Minister Shri P. Chidambaram through
pressure groups in U.S. It is believed that Shri Nasir
E Chippa has strong U.S. connections and his family stays
there.
(4) That Shri Sanjiv Bhatt arranged an appeal from Shri
M. Hasan Jowher, who runs a so called NGO titled
SPRAT (Society for Promoting Rationality) to Amicus
F Curiae on 13-05-2011, to call Shri Sanjiv Bhatt, IPS,
Shri Rajnish Rai, IPS, Shri Satish Verma, IPS, Shri
Kuldeep Sharma, IPS and Shri Rahul Sharma, IPS (all
police officers of Gujarat) to tender their version of the
Gujarat story. It may be mentioned here that the draft
for the said appeal was sent by Shri Sanjiv Bhatt himself
G to Shri Jowher. Further, a copy of this mail was
circulated by Shri Sanjiv Bhatt to Ms. Shabnam Hasmi,
Ms. Teesta Setalwad, Shri Himanshu Thakker,
journalist, Shri Leo Saldana, Journalist, and Shri Nasir
Chippa to encourage the persons/organisation to write
to Amicus Curiae on the similar lines so as to pressurize
H
him.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 267

(5) In emails exchanged on June 1, 2011 between Shri A
Sanjiv Bhatt and Shri M.H. Jowher, it was proposed
that a PIL may be filed through a lawyer named Shri
K. Vakharia (a Sr. Advocate and Chairman of Legal Cell
of Congress Party in Gujarat) in the Gujarat High Court
for providing security to Shri Sanjiv Bhatt. It was also
B
proposed that another complaint may be filed with the
Commissioner of Police, Ahmedabad City against Shri
Narendra Modi & others for his alleged involvement
in 2002 riots which would be taken to appropriate
judicial forums in due course.
(6) That Ms. Teesta Setalwad, her lawyer Shri Mihir Desai C
and Journalist Shri Manoj Mitta of Times of India were
in constant touch with Shri Sanjiv Bhatt, IPS and were
instrumental in arranging/drafting of the affidavit for
filing the same in Hon’ble Supreme Court. Vide email
dated 10-04-2011, Shri Bhatt solicited “Co-ordinates” D
from Ms. Teesta Setalwad, who had also arranged for a
meeting with her lawyer Shri Mihir Desai at Ellisbridge
Gymkhana, Ahmedabad. Shri Sanjiv Bhatt sent the first
draft of his proposed affidavit to Shri Manoj Mitta on
13-04-2011, after meeting Shri Mihir Desai, Advocate
and invited his suggestions. Shri Manoj Mitla advised E
Shri Sanjiv Bhatt to incorporate a few more paragraphs
drafted by him which were incorporated by Shri Sanjiv
Bhatt in his final affidavit sent to Hon’ble Supreme Court
of India as suggested by Shri Mitta.
(7) That Shri Sanjiv Bhatt was instrumental in arranging F
an affidavit of one Shri Shubhranshu Chaudhary, a
journalist, to corroborate his claim that he had gone to
attend a meeting called by the Chief Minister at his
residence in the night of 27-02-2002. Significantly, Shri
Bhatt had sent his mobile phone details of 27-02-2002 G
to Shri Shubhranshu Chaudhary and had also suggested
the probable timings of his meeting to Shri Shubhranshu
Chaudhary on 15-05-2011. Simultaneously, these details
were sent to Ms. Teesta Setalwad on 26-05-2011, for
drafting the document, presumably the affidavit to be
H
268 SUPREME COURT REPORTS [2022] 6 S.C.R.

A filed by Shri Shubhranshu Chaudhary. Shri Sanjiv Bhatt
sent an email to Shri Shubhranshu Chaudhary that the
said affidavit could be leaked out to the print media
which would force the Amicus Curiae and Hon’ble
Supreme Court to take notice of the same. Shri Sanjiv
Bhatt also sent another email to Shri Shubhranshu
B
Chaudhary, in which he has stated that they should play
the “Media Trick” so that affidavit is taken seriously
by Amicus Curie and the Hon’ble Supreme Court
(8) That Shri Sanjiv Bhatt had been exchanging emails with
one Leo Saldana, a Narmada Bachao Andolan activist,
C with a view to mobilize public opinion in their favour.
On 01-05-2011, Shri Sanjiv Bhatt had sent an email to
the latter to the effect that what they needed to do at
this stage was to create a situation, where it would be
difficult for three judges Supreme Court Bench to
D disregard the shortcomings of SIT under stewardship
of
---------------------------------------------------------------------------
Page: 417

E Mr. ‘Raghavan’ and that the Pressure groups and opinion
makers in Delhi could be of great help in forwarding the
cause. He has further stated in the mail that he was hopeful
that things would start turning around from the next hearing,
if proper pressure was maintained at National level.

F (9) That Shri Sanjiv Bhatt was trying to contact Shri K.S.
Subramanyam, a retired IPS officer, through Shri Nasir
Chippa to make an affidavit supporting his stand with a
view to convince the Amicus Curiae arid through him
the Hon’ble Supreme Court of India that Shri
K Chakravarthi former DGP of Gujarat, was a liar.
G
(10)That Shri Sanjiv Bhatt had been taking advice of Ms.
Teesta Setalwad in connection with his evidence before
Nanavati Commission of Inquiry. He had also been in
touch with various journalists, NGOs and had been
forwarding his representations, applications and other
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 269

documents through email; whereas on the other side A
he had been claiming privilege that being an
Intelligence Officer he was duty bound not to disclose
anything unless, he was legally compelled to do so.
(11) That Shri Sanjiv Bhatt had been maintaining a close
contact with Shri Rahul Sharma, DIG of Gujarat Police B
and had been getting his mobile phone calls analysed
with a view to ascertain his own movements of
27-02-2002. This shows that Bhatt does not recollect
his movements on that day. He has also been trying to
ascertain the movements of Late Haren Pandya, the
then Minister of State for Revenue on 27-02-2002, with C
a view to introduce him as a participant of the meeting
of 27-02-2002 held at CMs residence, but could not do
so, as Shri Rahul Sharma had informed him after the
analysis that there was absolutely no question of Late
Haren Pandya being at Gandhinagar on 27-02-2002 D
night.
From the study of emails, it appears that certain vested
interests including Shri Sanjiv Bhatt, different NGOs and
some political leaders were trying to use Hon’ble Supreme
Court/SIT as a forum for settling their scores. This would E
also go to show that Shri Sanjiv Bhatt had been colluding
with the persons with vested interests to see that some
kind of charge-sheet is filed against Shri Narendra Modi
and others.
Observations made by Ld. Amicus Curiae: F
“The other circumstances would also have to be taken into
account. There is nothing to show that CM intervened on 28-
02-2002, when the riots were taking place to prevent the riots.
The movement of Shri Modi and the instructions given by him
on 28-02-2002, would have been decisive to prove that he G
had taken all steps for the protection of the minorities, but
this evidence is not there. Neither CM nor his personal officials
have stated what he did on 28-02-2002. Neither the top police
nor bureaucrats have spoken about any decisive action by
CM”.
H
270 SUPREME COURT REPORTS [2022] 6 S.C.R.

A This one of the circumstances which indicates that the Hon’ble
Chief Minister had not taken enough steps to ensure that riots
in Ahmedabad City were immediately controlled by his direct
intervention.
Result of further investigation:
B During further investigation Shri Sanjay Bhavsar, OSD to
CM has stated that on 28-02-2002, the Chief Minister held a
meeting in the morning concerning business in the Assembly.
Further, at 0830 hrs the Chief Minister attended the Assembly
session, in which there was an obituary reference for those killed
C in Godhra incident. In the Assembly, the Chief Minister announced
the Judicial Inquiry into the incident under the Commission of
Inquiries Act instead of a High Level Inquiry announced earlier
on 27-02-2002, and the house was adjourned. The Chief Minister
held a meeting in the Assembly Secretariat with the acting Chief
Secretary, ACS (Home), DGP and Addl. DG (Int.) about the
D prevailing situation in the State. In this meeting, the matter
relating to the calling of Army was also discussed, but no
decision was taken and it was decided to watch the situation.
Shri Ashok Narayan has categorically stated that Late Ashok
Bhatt, the then Health Minister and Shri I.K. Jadeja, the
E then Minister did not attend the said meeting. Though, Shri
K. Chakravarthi, the then DGP has stated that ACS (Home) had
conveyed to him about the Government’s instructions to the effect
that the aforesaid two Ministers would
---------------------------------------------------------------------------
F Page: 418
sit in the two Control Rooms at Gandhinagar and Ahmedabad
City to assist the police, yet Shri Ashok Narayan has stated that
he does not recollect any such instructions.
Shri Ashok Narayan has further stated that the Army
G
had already been alerted on 27-02-2002, but inquiry
conducted with the local Army authorities had revealed that
no force was available in Gujarat and that the same had
been deployed at the Borders. On 28-02-2002, another law
& order review meeting was called by the Chief Minister
H at his residence around 1300 hrs or so, in which the situation
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 271

was discussed and deployment of forces was reviewed. In A
this meeting, it was unanimously decided that Army should
be called to assist the civil administration to maintain law
& order as the situation in the State was getting out of
control. In view of this, the Chief Minister made an oral
request to Shri L.K. Advani, the then Union Home Minister
B
over phone for deployment of Army in the State. As decided
in the meeting, a fax message was sent by Shri K.
Nityanandam, the then Secretary (Home) to the Secretary,
Ministry of Defence, Govt. of India at 1430 hrs seeking
deployment of 10 columns of Army at Ahmedabad City and
other affected places immediately by airlifting them. The C
Chief Minister had earlier given instructions for the safe
escort of the Hajj Pilgrims returning to the State to avoid
any untoward incident. The fax message in this regard was
sent on 27-02-2002, to Addl. DG (Int.) with information to
the DGP by the Section Officer (Spl.), Home Department,
D
Govt. of Gujarat.
The chief Minister along with his cabinet colleagues
and officials of the Home Department reached Circuit House
Annexe, Shahibaug, Ahmedabad City around 1600 hrs or
so and held a meeting with the officers of the Home
Department. Subsequently. the Chief Minister held a press E
conference at Circuit House Annexe, Shahibaug,
Ahmedabad City between 1630 hrs and 1745 hrs. In this
press conference, CM announced that a decision had been
taken by the State Govt. to call the Army. A video CD of the
press conference has been produced by Shri Sanjay F
Bhavsar. At about 1800 hrs, the Chief Minister’s appeal to
public for keeping peace and to maintain law & order was
recorded by the Dood-Darshan at Circuit House Annexe,
Shahibaug, Ahmedabad City and the same was televised at
1855 hrs before the regional news bulletin. The Chief
Minister held another law & order meeting at his residence G
at 2030 hrs 28-02-2002, which was attended by the senior
officers of the Home Department and the police. The Chief
Minister met the Union Defence Minister Shri George
Fernandes at his residence at 2230 hours on 28.02.2002,
in the presence of concerned officers, in which the prevalent H
272 SUPREME COURT REPORTS [2022] 6 S.C.R.

A law and order situation was reviewed and security
arrangements discussed. This is confirmed from the records
of the Protocol Department as well as the Police Control
Room messages.
According to Shri Sanjay Bhavsar, OSD to CM, the
B Chief Minister met Shri George Fernandes, the then Union
Defence Minister on 01-03-2002 at about 0830 hrs at his
residence in the presence of Govt. Officials and Army
Officers. As per the press release issued by the Gujarat
Information Bureau on 01-03-2002, Shri Gordhan Zadafia,
the then MoS (Home), Shri G. Subba Rao, the then Chief
C Secretary, Shri Ashok Narayan, the then ACS (Home) and
other senior police officers including Shri K. Chakravarthi,
the then DGP, Shri K. Nityanandam, the then Secretary
(Home) and senior Army and Air-force officer attended the
said meeting. In this meeting, CM requested for deployment
D of more Para Military Forces (PMFs) and BSF, to which
Shri George Fernandes agreed. CM also apprised the
Defence Minister about the allotment of 5 Coys of PMFs
to the State of Gujarat. The Chief Minister met the H.E.
Governor of Gujarat at 0930 hrs at Rajbhavan and apprised
him about the latest law & order situation in Gujarat and
E also about the security arrangements and bandobast made
in the State. During 1000 hrs to 1300 hrs, CM had attended
to the Govt. work and gave directions to the Administrative
functionaries to take preventive actions to ensure that the
disturbed situation did not spread. The Chief Minister also
F met the Congress delegation, informed them about the
action taken by the Govt, and advised them not to lodge
any protest in this regards. The Chief Minister also gave
directions for the safety and security of the Haj Pilgrims
returning to Gujarat. CM also discussed the cash doles and
about the other help to be given to the riot victims. He
G also discussed the packages for the relief camps started by
various NGOs and gave directions for other essential
services to be provided to riot affected victims. He also
gave directions to the Hospitals in the State to make
available uninterrupted medical services to the affected
H persons and other citizens. CM held a law & order review
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 273

meeting at 1300 hrs. Another law & order review meeting A
was held by CM at 1500 hrs at his residence. At 1630 hrs,
CM held a press conference at Circuit House Annexe,
Shahibaug Ahmedabad City. In this press conference, CM
informed the press that 13 columns of Army had been
deployed to assist the State Civil Administration and that
B
shoot at sight orders to maintain law & order situation had
been issued. CM also briefed the press about his meeting
with the Union Defence Minister and also about the
deployment of Army. He also gave the
--------------------------------------------------------------------------
C
Page: 419
details of various riot incidents and also about the
deployment of CPMFs in the Stare. CM also informed the
press about the requisitioning of the additional security
forces from the neighbouring States and appealed to the D
media to keep restraint. CM held another law & order
review meeting at 2030 hrs at his residence.
As per the request made by the Govt. of Gujarat, the
Army personnel were airlifted from the border and they
started arriving at Ahmedabad City in the night intervening E
28-02-2002/01-03-2002. Shri P.S Shah, the then Addl.
Secretary (L&O) has stated that on receipt of intimation
from the Army authorities, a programme indicating the
arrival of the Army and their logistic requirements was sent
to the CsP and DMs, Ahmedabad City, Baroda City and
Rajkot City by him on 28-02-2002 itself. However, vide F
letter dated 01-03-2002, a revised deployment scheme of
Army with 3 columns for Ahmedabad City and 2 columns
each for Baroda City and Godhra and 1 column for Rajkot
City was sent by him. Shri P.S. Shah has also stated that
Shri Gurdayal Singh, the then Addl. DG had submitted a G
report to ACS (Home) on 02-03-2002, vide which he
informed that 3 Battalions of Infantry Division reached
Ahmedabad City on 01-03-2002 and that 1 Battalion
strength having 3 columns was deployea in Bapunagar,
Gomtipur, Raikhad and Amraiwadi at Ahmedabad City. He
H
274 SUPREME COURT REPORTS [2022] 6 S.C.R.

A further informed that the IInd battalion was deployed in
Dariyapur, Shah-Alam, Danilimda, Khadia, Kalupur, Shahpur
and Madhupura P.S areas. Shri Gurdayal Singh had also
informed that 2 companies of the IIIrd battalion were
deployed in Juhapura, Vejalpur and Paldi areas and one
company kept in reserve.
B
Shri P.S. Shah has further stated that on 01-03-2002,
another crash wireless message was sent by Shri J.R.
Rajput, the then Under Secretary, Home Department with
the approval of the ACS (Home) to all CsP, DMs, SsP, IGs
and Western Railway SP, Baroda, in which it was emphasised
C that in view of the prevalent surcharged and tense
atmosphere, directions given by the Home Department time
and again for maintenance of public order and peace should
be implemented. In this message, several other instructions
including implementation of communal riots scheme,
D guidelines given by the Govt. of India to promote communal
harmony, effective actions against unruly mobs and unlawful
assembly and meetings of Peace Committee etc. were also
given.
Shri P.S. Shah, the then Addl. Secretary (L&O) has
E also stated that on 01-03-2002, DGP felt that the resources
available with him were insufficient to deal with the law &
order situation in the Gujarat and as such with the approval
of ACS (Home), 3 letters were sent by Shri K. Nityanandam,
the then Secretary (Home) to Chief Secretary, Madhya
Pradesh, Rajasthan and Maharasthra, through which these
F states were requested to spare 10 companies each of their
Armed police to help the Gujarat police in handling the law
& order situation. A reply dated 01-03-2002 was received
from Shri R.K. Nair, Addl. Chief Secretary, Govt. of
Rajasthan, in which he regretted to spare any police force
G for duties in Gujarat for the time being. However, 2 Coys
of SRP were provided by the Govt. of Maharasthra on
03-03-2002, and the same were deployed in Surat.
Shri G. Subba Rao, the then Chief Secretary has stated
that he had gone abroad and was recalled on 01-03-2002.,
H He has further stated that, he sent a wireless message to
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 275

all CsP, DMs, Range IGs and SsP to the effect that District A
Administration and police had to act in a decisive, prompt
and effective Manner to bring the situation under control
and that they should no hesitate to use whatever force was
necessary to bring the situation under control. The Chief
Secretary also emphasised in this message that when lives
B
and properties were threatened in communal situation,
necessary, force including firing should to be resorted to
bring the situation under control and if the situation
deteriorated beyond a point besides imposing curfew,
“shoot at sight” orders also be issued to prevent gathering
of unlawful mobs at public places. The jurisdictional officers C
were asked to acknowledge this communication and ensure
that no major incident took place under their jurisdiction.
Shri Sanjay Bhavsar, OSD to CM has stated that on
02-03-2002, the Chief Minister held another meeting with
Shri George Fernandes, the then Union Defence Minister D
at 0830 hrs at his residence. During 0930 hrs to 1230 hrs,
CM met the H.E. the Governor of Gujarat and apprised
him of the latest situation and the security arrangements
and bandobast made by the administration. CM further
discussed the packages for the relief camps started by the
various NGOs. CM also discussed the cash doles and the E
other help to be given to the riot. victims. The Chief
Minister also gave instructions that SSC/HSC board
examination be held as scheduled in peaceful atmosphere
and also to ensure the safely of students. Two Law & order
review meetings were held, by the Chief Minister at his F
residence at 1300 hrs and 1500 hrs respectively. CM held
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Page: 420
meeting of the officials of the Home Department at 1600 G
hrs at Circuit House Annexe, Shahibaug, Ahmedabad City.
CM also held a press conference at 1630 hrs in Circuit
House Annexe, Shahibaug, Ahmedabad City, during which
a detailed press release was issued by the Govt. of Gujarat.
CM held an all party meet at 1800 hrs, in which the congree
leaders did not participate. Another law & order review H
276 SUPREME COURT REPORTS [2022] 6 S.C.R.

A meeting was held by the Chief Minister at his residence at
2030 hrs.
According to Shri P.S. Shah, the then Addl. Secretary
(L&O) some instances of attack on life and property in
villages had been reported on 02-03-2002. He has stated
B that in view of violence in rural areas he sent a crash
wireless message to all CsP, DMs and SsP including SP,
Western Railway, Baroda to the effect that sufficient police
patrolling be organised to cover villages, where a particular
community may be in smaller number and steps be taken
to prevent the entry of antisocial elements from out side
C the State or from large cities into rural areas through
nakabandi. The jurisdictional officers were asked to
convene peace committee meeting at Taluka level to
sensitise social leaders in rural areas for the need to keep
peace. They were also instructed to keep a telephonic
D contact with the villagers through the concerned police
station in rural areas to obtain information and act quickly.
Directions were also issued to these officers to deploy the
available forces suitably to meet the developing situation
and also to maintain sufficient mobility.
E Shri Ashok Narayan, the then ACS (Home) has also
stated that he sent a wireless message on 02-03-2002, in
which it was emphasised upon the jurisdictional officers that
apart from their duties of maintenance of law & order. the
process of healing, building confidence amongst the people,
diffusing tension and promoting communal harmony was
F also required to be geared up immediately by the District
Administration and to achieve this object the District/City
Ekta Committee, Peace Committees and Mohalla
Committees should be activated and arrangements made
to hold these meetings. The jurisdictional officers were also
G asked to involve the prominent members of all the
communities, social leaders and NGOs in this process and
to report compliance by 04-03-2002.
As per Shri Sanjay Bhavsar, the Chief Minister left
for Ahmedabad airport on 03-03-2002 at 0900 hrs, and
H received the then Union Home Minister Shri L.K. Advani
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 277

at 1050 hrs. From airport the Chief Minister accompanied A
the Union Home Minister at 1145 hrs to some of the riot
affected areas like Delhi Darwaja, Idgah area and then went
to Civil Hospital to see the riot victims. At 1215 hrs, CM
accompanied the Union Home Minister to Godhra by
helicopter and reached Godhra at 1300 hrs. At Godhra, the.
B
Union Home Minister visited Godhra Railway Station and
inspected the scene of occurrence. Later, he visited Civil
Hospital, Godhra and met victims of the train incident. Shri
Advani left Godhra at 1345 hrs by helicopter and reached
Ahmedabad at 1430 hrs. Shri L.K. Advani held a law &
order review meeting with the officials of Home C
Department as well as the police department at 1600 hrs,
which was attended by the Chief Minister, MoS (Home),
Chief Secretary, ACS (Home), DGP and senior officers of
Home, Police and Revenue department. The Union Home
Minister asked the State Govt. to trace the culprits
D
responsible for Godhra incident and get them punished to
take measures to restore peace, to prevent violence and
that, strict action be taken against those who indulged in
violence. Shri Advani reviewed the measures taken by the
State Govt. to restore law & order in the State. In this
meeting the Chief Minister gave directions to organise E
joint peace marches. Thereafter, Shri Advani held a press
conference at Circuit House Annexe, Shahibaug,
Ahmedabad City at 1700 hrs. Shri L.K Advani went to
Gandhinagar accompanied by the Chief Minister and met
the then H.E. the Governor of Gujarat at 1830 hrs. At 1900
F
hrs Shri L.K. Advani met the Ministers of Gujarat Govt. at
CM’s residence. Shri L.K. Advani thereafter, left for
Hyderabad. Later, the Chief Minister held a law & order
review meeting at his residence at about 2030 hrs.
Shri Sanjay Bhavsar, OSD to CM has further stated
that on 04-03-2002, the Chief Minister met the H.E. G
Governor of Gujarat at latter’s residence at 0930 hrs and
apprised him of the latest law & order situation and
bandobast made in Ahmedabad City. Between 1030 hrs and
1300 hrs, CM held a law & order review meeting and also
held discussion with the officials of Home, Police and Legal H
278 SUPREME COURT REPORTS [2022] 6 S.C.R.

A department for the appointment of a Judicial Inquiry
Commission. The chief Minister further held discussion
about the Panchayat elections and local bodies elections,
which were due in March/April 2002. The Chief Minister
also held discussions for ex-gratia payment to the riot
affected persons, NGO relief camps, compensation for
B
destruction of the properties during riots with the
concerned officers. The Chief Minister also discussed the
issues relating to Gram Panchayat and local bodies’ elections
and SSC/HSC exams. Shri Advani came
---------------------------------------------------------------------------
C
Page: 421
to Bhavnagar directly on 04-03-2002. In view of this, the
Chief Minister left for airport at 1300 hrs and then left for
Bhavnagar by air at 1330 hrs. The Chief Minister reached
D Bhavnagar at 1410 hrs and met Shri L.K. Advani at 1420
hrs. At Bhavnagar, they had a round of riot affected areas
like Ranika, Ghogha Darwaja and S.T. Station Road. They
also visited Akwada Madressa, where 400-500 Muslim
students were saved on account of a timely action by the
police, held law & order review meeting and met the
E representatives of different organisations including minority
delegations and political leaders. They left for Rajkot at
1600 hrs and reached there at 1630 hrs. At Rajkot, CM,
the then Union Home Minister and others visited Gondal
Road, Lodhawad chawk. Parevadi Chawk and Lati plot
F areas. It may be mentioned here that during the earlier
riots in Gujarat, the Kutch and Saurasthra region were
peaceful, but in the year 2002 some signs of riots were
noticed in these areas, as a result of which CM and other
leaders visited these areas so that the riots did not spread
there. A law & order meeting was also held with the police
G officers at Rajkot. At Bhavnagar and Rajkot, high level
meetings were held by CM and other leaders, in which CM
directed to launch combing operations to track down the
antisocial elements and recover lethal weapons and
explosives. CM left Rajkot at 1800 hrs and reached his
H residence at Gandhinagar at 1915 hrs. At 2030 hrs, CM
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 279

held a meeting with the Ministers of his Government. CM A
has also instructed on 04-03-2002, that “SHANTI
KOOCH” should be held in villages and as such a wireless
message to this effect sent by ACS (Home) to all the DMs,
CsP, SsP etc on the same day.
As per Shri Ashok Narayan, the then ACS (Home), B
he sent another message dated 04-03-2002, to all CsP, SsP,
DMs, in which it was emphasised that rumour mongers
should be dealt with in an exemplary manner and that city
peace committees be activated to assist in restoring peace.
He also pointed out that the Hon’ble Chief Minister had
instructed that “Shanti-Kooch” be held in villages after C
looking into the local situation. It was also mentioned in
this message that all class-I & II officers of Revenue and
Panchayat should be instructed to visit the villages at least
twice a week and that the Talatis and primary school
teachers should be instructed to stay in their respective D
places of duties and keep in touch with the village leaders
and sensitise them about the need to keep peace in their
villages.
Shri P.S. Shah, the then Addl. Secretary (L & O) has
stated that he has sent a crash wireless message on E
04-03-2002, all CsP, DMs, SsP to convene the peace
committee meetings immediately, in which the participation
of individuals from every community be ensured and also
to hold peace marches in all the villages viewing the local
situation. The jurisdictional officers were also requested
to involve revenue/ development machinery as per the F
instructions contained in the Home Department crash
message dated 02-03-2002 and document the same with
the help of either videography or photography and send
the same to the Home Departmeint.
Shri P.S. Shah, the then Addl. Secretary (L&O) has G
also stated that he sent another fax message dated
04-03-2002 to all CsP, DMs and DDOs, in which he pointed
out about the receipt of disturbing reports of attempts to
disturb the traditional peace and amity in the villages. It
was highlighted that there was failure of the society H
280 SUPREME COURT REPORTS [2022] 6 S.C.R.

A represented by village panchayat and the village peace
committees in meeting out this responsibility. He also
impressed upon the aforesaid officers to take action u/s 50
of the Bombay Police Act, which provides for imposition of
punitive fines and also about the temporary withdrawal of
developmental grants and facilities, if any village was bent
B
upon indulging in senseless and sectarian violence against
its own members or neighboring villages.
On 04-03-2002, a letter dated 02-03-2002 was
received from Dy. Secretary, Information and Broadcasting
department, Govt. of Gujarat by Shri Ashok Narayan, in
C which it was pointed out by I & B deptt. that in view of the
prevailing situation in the Gujarat State, if any cable network
exhibits programme/news, which might incite violence or
might create law & order problems, strict action should be
taken immediately against them under the provisions or
D Cable Televisions Networks Regulation Act 1995 & rules
thereunder. On receipt of the same, a DO letter was sent
by Shri Ashok Narayan on 05-03-2002, to Shri
K. Chakravarthi, the then DGP, to ensure strict and
effective implementation of the revised guidelines issued
by the Govt. of India for promotion of communal harmony.
E DGP was further advised to take action against those
elements, who had demolished/damaged certain places of
worship and also against those who had converted some of
the religious places of worship of a religious denomination
into places of worship of different religious denomination
F under the provisions of Places of Worship (Special
Provision) Act 1991. Besides that DGP was advised that
reporters, editors, printers, publishers and owners of the
media must be advised to discourage distorted reporting /
telecasting and action
G ---------------------------------------------------------------------------
Page: 422
u/s 153 (A) & 505 (2) IPC should be taken against writers/
publishers of the objectionable of inflammatory material
promoting or attempting to promote disharmony or feeling
H of enmity, hatred or ill will between different religious
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 281

communities/groups. DGP was also advised that in order A
to maintain sanctity of religious places and prevent their
misuse for criminal, subversive or communal activities the
provisions of Religious Institution (Prevention of Misuse)
Act be invoked, as it would help in maintenance of peace,
order and transquillity.
B
Shri Sanjay Bhavsar has also stated that on
05-03-2002, CM held a law & order review meeting at his
residence. The Chief Minister also addressed a High Level
meeting attended by Chief Secretary, Revenue Secretary,
Health Secretary, Secretary (R&B) and Health
Commissioner and gave specific instructions to them to C
visit 18 relief camps in different areas. CM also instructed
the Collector & District Magistrate, Ahmedabad to make
arrangements for the distribution of food and essential
commodities with the help of commercial organizations. At
1430 hrs, CM left for Ahmedabad and held a meeting with D
prominent citizens at Gujarat Chamber of Commerce,
Ahmedabad. The Chief Minister made an appeal to the
trade and industry, heads of religious organisations and
intellectuals to help revive and restore economic activities,
which evoked encouraging response from all quarters. CM
categorically said that the Govt. would not compromise with E
law breaking antisocial elements and that, the Govt. was
committed to re-establish the sense of mutual trust and
confidence. The Chief Minister out rightly condemned the
law breakers and subsequent violent incidents. At about.
1630 hrs, CM visited C.G. Road at 1700 hrs, Mahajan Vando, F
Jamalpur at 1730 hrs, Shethia building char rasta and Revadi
Bazar, Relief Raod at 1800 hrs, Delhi Darwaja at 1830 hrs,
Gulberg Society at 1900 hrs and Naroda Patiya at 1930 hrs.
CM was accompanied by Late Ashok Bhatt, the then Health
Minister, Shri Kaushikbhai Patel, the then Energy Minister,
Smt. Anandiben Patel, the then Education Minister, Late G
Haren Pandya, the then MoS Revenue Minister, Shri
Bharatbhai Pandya, the then sitting MLA, Smt. Mayaben
Kodnani, the then MLA and Shri P.C. Pande, the then CP.
Ahmedabad City.
H
282 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Shri Ashok Narayan, the then ACS (Home) has further
stated that he sent a confidential wireless message on
05-03-2002, to all CsP, Range IGPs, DMs and all SsP that
the surcharged communal atmosphere in parts of Gujarat
was returning to normal and that measures suggested by
the Govt. of India in the revised guidelines for communal
B
harmony should be implemented with a view to gear up the
process of restoration of normalcy and promoting communal
harmony.
On 05-03-2002, Shri Ashok Narayan has also stated
that he sent a DO letter to Shri K. Chakravarthi, the then
C DGP that the law & order situation was being brought under
control and the State was gradually returning to normal with
the curfew being lifted in a phased manner from the places
where the situation was improving, but it was due to the
presence of Army and CPMFs, which was only a temporary
D measure and reinforcement to the State Police resources
should be done. It was further pointed out that the anti-
social elements night be awaiting the withdrawal of these
forces and might attempt to create disturbances again and
that the possibility of sporadic incidents, revenge or an
organised backlash from either community or attacks on
E the law enforcing agencies could not be ruled out. It was
also emphasized upon the DGP that the respite provided
by the temporary assistance of Army and CPMEs should
be used to strengthen, their own control over the law &
order situation to meet these possible Challenges. DGP
F was also asked to chalk out a suitable strategy in this regard.
On 05-03-2002 itself, a representation dated 04-03-2002
was received from Kadi Muslim Samaj, Kadi, Mehsana to
provide protection to them his representation was
forwarded by him to the DGP vide his DO letter dated 05-
03-2002 to provide all necessary protection to the Muslim
G samaj as soon as possible.
On 06-03-2002, Shri P.S. Shah, the then Addl.
Secretary (L&O) sent another wireless message to CsP,
DMs and all SsP to make necessary, bandobast, give
protection to the Haj Yatris and to ensure that they reach
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 283

safely to their residences. On the same day, he sent another A
message to all the aforesaid officials to review the local
position and made adequate bandobast at various mosques
for thwarting any act of provocation and also for the
protection of the mosques on 08-03-2002, when a large
number of Muslim were likely to assemble in the mosque
B
for Namaz.
On 06-03-2002, a representation was received by Shri
Ashok Narayan, the then ACS (Home) from the residents
of Jawahar Chawk, Raikhad, Ahmedabad City for giving
adequate police protection to them, which was immediately
forwarded by him to Shri K. Chakravarthi, the then DGP C
for further necessary action. On 06-03-2002 itself, a DO
letter was received by ACS
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Page: 423 D
(Home) from Shri Arvind Shukla, PS to the Governor of
Gujarat forwarding there with a representation from Daudi
Vohra Community of Garbada taluka, Dahod Distt. with a
request to continue the BSF protection. This representation
from Daudi Vohra Community was forwarded by him to DGP E
Shri K. Chakravarthi immediately that the H.E. Governor
of Gujarat had desired that in Garbada, Gangardi and
Jesawada and surrounding rural area of Garbada taluka in
Distt. Dahod, the BSF baridobast should be continued, and
an intensive police patrolling should be done. On 06-03-
2002, another representation was also received by ACS F
(Home) from Ahmedabad-Mehsana High Way Hotel
Association requesting financial assistance for the damage
done to the hotels during the riots in Gujarat and the same
was forwarded by him to Shri C.K Koshi, Principal Secretary,
Revenue Department, Gandhinagar for further necessary G
action.
On 06-03-2002, a DO letter was sent by Shri Ashok
Narayan, the then ACS (Home) to DCP stating that as the
violence in the State continues, it was necessary that the
police should strictly adhere to the principles of rule of law,
H
284 SUPREME COURT REPORTS [2022] 6 S.C.R.

A take effective action to prevent further violence and deal
ruthlessly with all the violators. He also suggested that
effective but controlled use of force be resorted to deal
firmly with violators, to arrest all ring leaders and people
whose names figured in the FIR, to conduct combing
operations to recover arms/explosives and other material
B
used or likely to be used in the present situation and also
to recover all stolen/looted property. DGP was also
requested to initiate action immediately so that supremacy
of law could be established.
On 06-03-2002, some members of the press had
C mentioned to Shri Ashok Narayan that though the names of
some of the VHP and Bajrang Dal leaders figured in the
FIR No. 98/2002 of Naroda P.S. against Shri Kishan Korani
& others and in Gulberg case FIR against Shri Dipak Patel
yet they had not been arrested. This information was
D immediately passed on by ACS (Home) to the DGP for
suitable action in the matter.
Shri P.S. Shah, the then Addl. Secretary (L&O) has
further stated that on 07-03-2002, he sent another wireless
message to CP, Range IGPs, DMs and all SsP to exercise
E strict vigil at temples on Maha-Shivratri festival to be
celebrated on 12-03-2002, in view of the highly surcharged
and tense situation prevailing on the communal front. It
was highlighted that antisocial and hardcore communal
minded elements bent upon to jeopardise communal
harmony should be dealt with firmly and promptly. It was
F also emphasised that peace and communal harmony must
be maintained at all costs. Further instructions were given
by him to all the jurisdictional officers to provide adequate
security to Shiva temples to avoid any untoward incident.
These instructions were given in the light of the fact that
G symbolic pooja at Ayodhya was scheduled to be held on
15-03-2002.
Shri Ashok Narayan has further stated that on
07-03-2002, he sent a DO letter to Shri K. Chakravarthi,
the then DGP, in which he referred to the earlier discussions
H held with him during which it was felt that there was a need
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 285

to overhaul the intelligence set up and also to increase the A
lump sum amounts available to the field officers and
requested him to send a proposal in this regard. He also
pointed out that during the discussions with the Chief
Minister, he had pointed out that there was a necessity to
do very effective combing and to identify areas to prevert
B
further incidents of terrorism and violence.
On 07-03-2002, a note was sent to Shri Ashok Narayan
by the Chief Secretary that tough law & order situation was
fast returning normal, it was necessary to intensify the
efforts by taking effective steps regarding rounding up of
all known anti-social elements and also to conduct combing C
operations for detection and seizure of illegal arms and
ammunition. These instructions were communicated to DGP
on 07-03-2002 itself by Shri Ashok Narayan through a DO
letter requesting him to take effective steps on these lines.
On 07-03-2002 itself, a representation was received from D
Shri Farook Sheikh, MLA, Kalupur, Ahmedabad City
intimating that he and his family had been receiving
telephonic threats on their life for a long time and armed
police protection be provided to him. This representation
of Shri Farook Sheikh MLA, Kalupur was forwarded to DGP
on 07-03-2002, by Shri Ashok Narayan with a copy to CP, E
Ahmedabad City.
Shri P.S. Shah, the then Addl. Secretary (L&O) stated
that he sent a wireless message on 13-03-2002, to the
jurisdictional officers to monitor the situation/developments
closely for maintenance of law & order in their respective F
jurisdiction in the light of Hon’ble Supreme Court’s order
in Writ Petition filed by Mohd. Aslam Vs. Union of India to
maintain status-quo and that Ram-Sevaks should not be
allowed to perform symbolic pooja.
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Page: 424
Shri P.S. Shah, the then Addl, Secretary (L&O) has
also stated that on 14-03-2002, a wireless message was sent
by him to all CsP, Range IGPs, DMs and all SsP that in the
H
286 SUPREME COURT REPORTS [2022] 6 S.C.R.

A light of order passed by the Hon’ble Supreme Court of India
in a Writ Petition filed by Aslam Bhura Vs. Union of India
on 13-03-2002, either symbolic or actual Bhumi-Pooja
should not be permitted to take place. Further, as a
statement had been made by Secretary, VHP to the effect
that demonstrations would be held from 14-03-2002 onwards
B
all over the country, it was likely to lead to the communal
clashes. All the aforesaid jurisdictional officers were
specifically directed to strengthen security arrangements
at religious places, deal firmly with anti-social, disgruntled
and hardcore communal minded element, implement
C prohibitory orders, strictly set up pickets at all sensitive
points, to pick up rumour mongers, to intensity foot and
mobile patrolling, to maintain communal harmony and to
keep close watch over the situation.
On 14-03-2002, Shri Ashok Narayan received
D information about the protection sought by some Muslim
families residing in Baroda City. These families had asked
for RAF deployment between 14-03-2002 to 16-03-2002
for their protection, in view of the VHP programme fixed
for 15-03-2002. This information was passed on by him to
the DGP, Collector & CP, Baroda City through separate
E DO letters dated 14-03-2002 with a request to look into
the security of these specific areas.
On 15-03-2002, Shri Ashok Narayan had written DO
letter to Shri K. Chakrayarthi, the then DGP in the context
of several discussions with the Chief Secretary regarding
F the need to activate the intelligence machinery in the
prevailing situation. It was further mentioned that CM had
already given several suggestions to facilitate unearthing
of antisocial and antinational links. He also, mentioned that
in the prevailing situation of general tension, it was even
G more necessary to take concrete steps in order to prevent
worsening of the situation. Shri Ashok Narayan had
suggested to DCP to constitute a task force involving Shri
R.C. Mehta, Shri R.B. Sreekumar and Shri G.C. Raiger to
work out a suitable plan within about 3 days.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 287

Shri P.S. Shah, the then Addl. Secretary (L&O) has A
further stated that on 21-03-2002, he sent a crash wireless
to all CsP, Range IGPs, DMs and all SsP, in which he had
emphasised the need to keep a close watch over communal
situation in the light of the festivals of Mohharram, Holi/
Dhuleti and Good Friday to be celebrated on 25-03-2002,
B
28-03-2002 and 29-03-2002 respectively by different
communities of the society. In the light of highly surcharged
and tense atmosphere prevailing in the State, it was further
emphasised upon the jurisdictional officers that HSC/SSC
examination were also being held in all over the state
(except 5 cities) and therefore, special attention should be C
paid to the sensitive areas and places, which had recently
witnesses communal violence. All the jurisdictional officers
were also advised to make foolproof bandobast on the eve
of Mohharram i.e. Qattal ki rat and during Tazia
processions. Instructions were also given to all the
D
aforesaid officers to remain present at their headquarters
and closely supervise all the arrangements for maintenance
of public order and communal harmony under their
jurisdiction.
Shri Ashok Narayan, the then ACS (Home), Shri P.S.
Shah, the then Addl. Secretary (L&O) and Shri E
K. Chakravarthi, the then DGP have stated that in addition
to the aforesaid references, a number of complaints/
representations were received personally/telephonically, for
which immediate, necessary action was taken by them over
telephone, for which no records are available. According F
to them, after 72 hours, the situation was gradually coming
under control though even subsequently stray incidents of
violence were reported from different parts of the State for
a few days. However, the Panchayat elections were held in
March-April, 2002 peacefully, and the Haj-Pilgrims who had
returned from pilgrimage were safely escorted to their G
respective places without any untoward incident. The fact
that the festivals like Maha-Shivratri, Holi, Good Friday
and the religious function of Mohharram, as well as SSCI-/
HSC examination passed off peacefully in March, 2002
H
288 SUPREME COURT REPORTS [2022] 6 S.C.R.

A would go to show that the State was returning to normalcy
fast.
Keeping in view the aforesaid facts, it is established
that the Godhra train burning incident took place on
27-02-2002 between 07.47 and 08.20 hrs. There is evidence
B available on record to show that immediately the State
machinery, was put on the high alert and this was
communicated to all District authorities and Commissioners
of Police. The first alert message of 27-02-2002 from the
Home Department covered the need to take precautionary
measures including adequate police bandobast and
C preventive measures including issuance of prohibitory
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Page: 425
orders depending upon the local situation. It was instructed
D that antisocial and hardcore communal elements should be
dealt with family. It was also impressed upon the district
administration that when the dead bodies arrive in the
respective native places, there was a likelihood of
heightened communal tension and hence bandobast should
E be arranged, especially for the funeral procession. All
Commissioners of Police DMs and SsP should remain in
HQ and closely monitor the situation.
This alert message of 27-02-2002 was followed by
another message from Home Department on 28-02-2002,
F to all concerned to round-up anti-social and known
communal elements under the preventive laws. It was
further instructed that mobile patrolling should be
intensified and adequate protection should also be provided
at places of worship and that effective action should be taken
to disperse unruly mob, unlawful assemblies, using
G whatever force necessary. It was also made clear that anti-
social elements indulging in violence and bent upon
jeopardizing communal harmony must be controlled firmly.
Another message dated 28-02-2002, impressed upon all
concerned officers to maintain adequate bandobast for
01-03-2002, being Friday and the day of Namaz for the
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 289

Muslims. Adequate bandobast was directed to be provided A
to all sensitive areas and curfew was ordered to be strictly
enforced. On 28-02-2002, another message was sent to the
Addl. DG (Int.) to maintain adequate bandobast for the
security of returning Haj Pilgrims at their point of entry. It
appears that realising the seriousness of the situation, the
B
Chief Minister took a decision on 28-02-2002, to call the
Army to assist the civil administration in maintenance of
law & order in the State. Accordingly, the Chief Minister
spoke to the Union Home Minister on 28-02-2002 around
1400 hrs and orally requested him to depute the Army to
control the law & order situation. This was followed by a C
fax message sent by Shri K. Nityanandam, the then
Secretary (Home) to the Secretary, Ministry of Defence,
Govt of India on 28-02-2002 at 1430 hrs. Unfortunately,
the Army was not locally available as it had been deployed
on the borders, as a result of which the Army had to be
D
airlifted to Ahmedabad and could be effectively deployed
from 01-03-2002 onwards only.
It is established that on 28-02-2002, events in the
aftermath of the gruesome Godhra episode of 27-02-2002
unfolded and violent incidents were reported from many
parts of the State. A high level review of the situation at the E
Chief Minister’s level was made on 28-02-2002 afternoon.
The meeting was attended by the Chief Minister, MoS
(Home), the DGP and Addl. DG (Int.). By 1430 hrs, the
Chief Minister had made an oral request to the Union Home
Minister for Army deployment. At about the same time, an F
official request was sent in writing by Shri K. Nityanandam,
the then Secretary (Home) to the Secretary, Ministry of
Defence to make the Army available for internal security
duties. The Chief Minister publicly announced at 1600 hrs.
in a press conference the decision of the State Govt. to call
the Army. Efforts were also made to requisition available G
Army personnel in the cantonment area of Ahmedabad, but
no force was available. It was understood that withdrawing
the Army at such critical juncture when war like situation
existed with the neighbour needed a high level decision at
the Centre. This decision to withdraw the Army and deploy H
290 SUPREME COURT REPORTS [2022] 6 S.C.R.

A in Gujarat has immediately taken at highest level in the
Centre at the request of Gujarat Govt.
Army personnel were airlifted from forward positions
and they started arriving by the midnight of 28-02-2002. It
may be mentioned here that 40 aircrafts were used to airlift
B Army personnel to Ahmedabad. The first plane, landed at
Ahmedabad on 28-02-2002 mid night and the last one on
01-03-2002 at 2300 hrs. The deployment of the Army also
required additional logistic support by the civil
administration in the form of Executive Magistrates,
vehicles, Liaison officer, mobile phones, guides and maps
C and same were promptly made available to them. The
deployment of Army commenced by 1100 hrs after a high
level meeting with the Chief Minister and the Union
Defence Minister along with senior officials of the Army
and the state administration. The Army was deployed in
D the affected areas of Ahmedabad City i.e. Paldi, Juhapura,
Vejalpur, Shahpur, Bapunagar, Rakhial, Gomtipur,
Meghaninagar; Dariapur, Kalupur, Naroda and Dani Limda.
It may thus be seen that 9 columns of Army were deployed
on 01-03-2002. Later on, 2 columns of the Army were
moved to Vadodara on 01-03-2002 at 1830 hrs, 2 columns
E despatched to Godhra on 02-03-2002, and they reached
Godhra at 0130 hrs, 2 columns moved to Rajkot on
02-03-2002 at 1100 hrs. It may be mentioned here that while
the situation in the other parts of the Gujarat was grave,
cities like Bhavnagar and Surat were initially unaffected.
F However, as incidents of violence were reported from
Bhavnagar and Surat, Army columns were moved to Surat
on 03-03-2002 at 1100 hrs and to Bhavnagar on 03-03-2002
at 2235 hrs. In all 26 Army columns had been deployed at
the peak of riots in the State.
G ---------------------------------------------------------------------------
Page: 426
In addition, the Govt. of India had approved the
deployment of CPMFs and therefore, 6 Coys of CISF, 11
Coys of BSF, 5 Coys of Border Wing Home-guards and 4
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 291

Coys of RAF were deployed in the State by 03-03-2002. A
The State Govt. had also made a request on 28-02-2002, to
the neighbouring States of Maharasthra, Rajasthan and
Madhya Pradesh to spare the services of their Armed
Reserve Police companies. However, only Maharashtra
responded by sending 2 Coys of SRP, whereas the Govt. of
B
Rajasthan and Madhya Pradesh expressed their inability
to spare any police force due to the internal commitments.
It may thus be seen that there was no delay, whatsoever in
requisitioning the Army and its deployment by the State as
and when they realised. on 28-02-2002 afternoon that the
situation was going beyond control. Significantly, Union C
Defence Minister arrived at Ahmedabad on 28.02.2002
night to ensure that Army formations take their positions
without any delay.
Shri G. Subha Rao, the then Chief Secretary, who had
gone aboard, was recalled and he arrived on 01-03-2002. D
The Chief Secretary had issued a clear cut message to all
the jurisdictional officers to take effective action including
implementation of Communal Riot Scheme, to act in a
decisive, prompt and effective manner to control the
situation and not to hesitate to use whatever force was
necessary to bring the situation under control, if any life E
and property were threatened. It was impressed by him
that firing be resorted to as per situation and if the situation
deteriorates beyond a point, besides imposing curfew even
shoot at sight orders should be given to control the unruly
mobs. This wireless message from the Chief Secretary F
gives clear cut indication and mind of the State that the
riots had to be controlled at any cost.
Frantic messages were sent by the Home Department
on 01-03-2002 to 06-03-2002 and specific instructions were
given to the effect that the riots had to be controlled and all G
steps should be taken to restore normalcy and peace in
the State. In addition, 14 messages were sent by the Home
Department, which included measures, to be taken for
ensuing festivals, arrival of Hajj pilgrims and their security,
Jumma Namaz, Ram-Navami, Moharrum, Holi-Dhuleti and
H
292 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Good Friday. These messages also included the necessary
precautions to be taken in the issues relating to symbolic
or actual bhumi pooja proposed to be performed by the
Ramsevaks on 15-03-2002, about which the specific orders
had been issued by the Hon’ble Supreme Court of India to
maintain status-quo.
B
Further investigation has also disclosed that the Chief
Secretary and Addl. Chief Secretary (Home) had arranged
for two video conferences with the CP, DMs, SP and other
concerned officers on 04-03-2002 and 11-03-2002, in which
important items on agenda were as follows:-
C
i. Review of current law and order situation in the state
ii. Effective deployment of various forces
iii. Instruction for holding Peace Committee meetings and
Peace Marches
D
iv. Curbing violence and protecting places of worship.
v. Preventive measures and other actions against
criminals including, detention
vi. Incidents of 15-03-2002 at Ayodhya and Ram-mandir
E issue
vii. Bandobast for SSC/HSC examination
viii. Attention to various alert messages issued about law
& order, ensuing festivals and Haj pilgrims

F It has also come to light during further investigation
that from 27-02-2002 onwards, high level meetings with
the Chief Minister and senior officers were held in the
morning as well as in the evening. The Chief Secretary and
the ACS (Home) also held atleast one meeting per day with
DGP and other senior police officers, in which the current
G situation during the last 24 hours was reviewed including
the bandobast and deployment of forces. The Chief Secretary
also held separate high level meetings with Army officers
on 07-03-2002, 18-03-2002 & 23-03-2002.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 293

Further investigation has established that the State A
Govt. was reasonably vigilant vis-à-vis the developments
on the law & order front and immediately responded by
bringing to the notice of all District officials, the need to
maintain adequate bandobast in view of the Godhra incident
on 27-02-2002. In addition, written communications were
B
sent on day to day basis with specific instructions to control
the law & order situation with a view to bring normalcy,
communal peace and harmony in the State at all costs. The
State authorities also impressed upon jurisdictional officers
that violators of law should be effectively dealt with, no laxity
shown and maximum force used to suppress and contain C
the violence. The allegation about the inaction on the part
of State Govt. as well as police department is, therefore,
not established.
---------------------------------------------------------------------------
Page: 427 D

Observations made by Ld. Amicus Curiae:
It is difficult to believe that when CM came back after the
Godhra trip, no Minister was present at his residence, Hence,
it may not be totally unbelievable that Shri Haren Pandya E
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 (Ret.) can be used,
even if his statement is not been formally reproduced in the
writing by the Citizen’s Tribunal.
F
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 CM’s office
was uncomfortable with the disclosure made by an G
unidentified Minister to the Citizen’s Tribunal.
Result of further investigation:
Further investigation revealed that the Chief Minister
left Godhra at about 1945 hrs on 27-02-2002 by road and
H
294 SUPREME COURT REPORTS [2022] 6 S.C.R.

A reached Vadodara airport at about 2130 hrs. Shri Narendra
Modi left for Ahmedabad by Govt aircraft around 2130 hrs.
From Ahmedabad airport CM went to Gandhinagar by road
and reached his official residence at about 2230 hrs. On his
return, he called for a law & order meeting at about 2300
hrs, which was attended by the top officials of administration,
B
Home and Police department. Shri K. Chakravarthi, the
then DGP said that on 27-02-2002, late in the evening while
he was in Door-Darshan studio, Ahmedabad City, he
received a message from State Police Control Room that
CM had called for a meeting at his residence at
C Gandhinagar at about 2230 hrs. He has further stated that
he had reached at CM’s residence alone a little earlier and
waited there as CM had not arrived at that time.
Subsequently, Smt. Swarna Kanta Varma, the then acting
Chief Secretary Shri Ashok Narayan, the then ACS (Home),
Shri P.C. Pande, the then CP, Ahmedabad City and Shri
D
K. Nityanandam, the then Secretary (Home) also arrived
there. According to Shri Chakravarthi, the meeting was held
around 2300 hrs or could be a little earlier and lasted for
about 20-30 minutes. All the participants of the said meeting
have categorically stated that none of the Minister/politician
E attended the said meeting. Mr. Justice P.B.Sawant, Retired
Judge of Hon’ble Supreme Court of India and Mr. Justice
Hosbet Suresh, Retired Judge of Bombay High Court,
members of the Concerned Citizens Tribunal - Gujarat
2002, (that was conceived in response to the Godhra
carnage on 27-02-2002) have stated that one Minister of
F
the Gujarat Govt. namely Late Haren Pandya, appeared and
deposed before the Tribunal on 13-05-2002, on condition
of anonymity, that he had attended a meeting on 27-02-2002
night at the residence of Shri Narendra Modi, CM, in which
the latter had made it clear that there would be a backlash
G from the Hindus on the next day and that the police should
not come in their way. According to Justice Sawant, Late
Haren Pandya revealed that Shri Modi also instructed the
police officers and Civil servants that a Hindu reaction was
expected and the same must not be curtailed or controlled.
However, his deposition had not been recorded anywhere
H by the Tribunal.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 295

Further investigation revealed that an inquiry into the Godhra A
incident as well the riots that followed the Godhra carnage was
conducted by Concerned Citizen Tribunal sometime in April-May,
2002 and their report was published on 21-11-2002, in the form of
a book titled “Crime Against Humanity”, which bears the signatures
of Mr. Justice P.B. Sawant, Retd. and Mr. Justice Hosbet Suresh,
B
Retd. beside others. The extracts from page 249 of volume-l of
“Crime Against Humanity” are reproduced below:-
“Witnesses deposing before us testified to the fact that the
chief minister called a meeting of senior police and other officers
on that very night of February 27, 2002. At this meeting specific
instructions were given by him in the presence of state home C
minister on how the police should deal with the situation on the
bandh day. We were informed that instruction were given in
this meeting by the Chief minister specifically not to take action
against any Hindu reaction to Godhra”.
This report would go to show that, the State Home Minister D
i.e. Shri Gordhan Zadafia, the then MoS (Home) was present in
the said meeting, whereas there is conclusive evidence to establish
that Shri Gordhan Zadafia, had stayed at Godhra on 27-02-2002
and returned on 28
--------------------------------------------------------------------------- E

Page: 428
-02-2002 morning. Nowhere, the name of Late Haren Pandya,
who was holding the portfolio of Minister of State for Revenue
had been mentioned in the said report. On the contrary, Late Haren F
Pandya had been severely criticized by the Concerned Citizen
Tribunal in its report. Some of the extracts from the said report
are reproduced below:-
“Naroda Patiya and Naroda Gaon have a long history of VHP
provocation. Police sources revealed to expert witnesses who
G
deposed before the Tribunal, that in 1999 a dargah was broken
down and an idol installed in its place. At the time, the local
police repaired the dargah and arrested 10-15 persons, including
Dr. Jaideep Patel, Maya Kodnani and Amrish Pandey. Pressure
was mounted on the police by the then home minister, Haren
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296 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Pandya, but the police stood their ground and the law-breakers
were forced to back down” (page-36. of Vol.1)
“On the night of February 27-28, the elephants that are kept
inside the temple premises were made to drink liquor. The
sounds and trumpeting that followed caused terror in the entire
B locality. During the last election, former minister Haren Pandya,
who won from the Paldi area, had openly proclaimed during
his campaign, Baandyo nahin bachwo joyiye. (Not a single
baandyo, abusive term for a Muslim/circumcised person must
be spared..)” (page-44 of Vol.1)
C “Three eyewitnesses, who deposed before the Tribunal, saw
former revenue-minister Haren Pandya opposite the VS
Hospital, setting fire to the Apna Bazaar Medical. Aa Miyaone
aag lagadiye. (Let us burn these Muslims.), he was shouting
after he had burnt it down himself. The Ellis Bridge police
station is close by but they did nothing. The fire brigade was
D called and they tried desperately to put out the fire. But Pandya,
leading the mob, prevented them. An FIR has been launched
against him and BJP MLA Ashok Bhatt. Just outside the Ellis
Bridge police station, Haren Pandya was overheard telling the
PI, even as Hotel Ellis was aflame, Aah samaj kayi nathi kartoo.
E (This community does nothing.) The PI concerned had a special
room permanently booked for him at Hotel Ellis”. (page-44 of
Vol.1)
“There were attacks on 6 housing societies in Paldi, where about
1,000 Muslims live. In all, there are about 5-6,000 Hindus living in
F this area. Kazmi Apartments, Elite, Delite, Corner 2, Tarana
Apartments and Bungalows No. 16 and 24 in Paldi, occupied by
the owners of Motimahal, were completely burnt. Eyewitesses
testified to seeing the then Gujarat revenue minister, Haren Pandya,
leading mobs who then committed arson”. (page-48 of Vol. 1)

G “Detailed evidence was recorded by us regarding the desecration
of the tomb of Wali Gujarati, a renowned poet remembered as the
founder of Urdu poetry. On March 1. His tomb, located not more
than 10 metres from the office of Ahmedabad’s commissioner of
police (also the police headquarters) was demolished and a saffron
flag hoisted on the site. It is believed that the shrine was torn
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 297

down by marauding mobs under the directions of Gujarat’s revenue A
minister, Shri Haren Pandya. This flag was removed on the night
of March 2. On March 8, a tarred road was constructed at the
site, leaving no trace whatsoever of the tomb that had stood there
for nearly three centuries. It is shocking that a calious government
and an unprincipled administration participated in the utter
B
obliteration of this cultural monument and allowed a road to be
constructed over it”. (page - 48 of Vol. 2)
“On the night of March 3, a 400-year-old mosque owned by the
Wakf Board, and located near Anjali Cinema in Ahmedabad, was
broken down in the presence of state ministers Shri Haren Pandya
and Shri Amit Shah. As in many other cases, a Hulladiya Hanuman C
idol was installed there, followed by darshans and artis”. (page-
49 of Vol.2)
“The Tribunal observes that in Gujarat, many cabinet ministers
are simultaneously prominent leaders of the VHP. The home
minister, Shri Gordhan Zadaphiya, is one of them. So, too, is the D
former revenue minister Shri Haren Pandya, a senior VHP
functionary. He has been named by many witnesses who appeared
before us, as trying to influence police not to take action against
the accused. Minister for forests, Shri Prabhat Singh Chauhan
and minister for cottage Industres, Shri Narayan Laloo Patel are E
also two clear examples of this”. (page-52 of Vol.2)
---------------------------------------------------------------------------
Page: 429
“Some of the senior BJP leaders and ministers in Shri Modi’s F
cabinet were also alleged to have participated in the destruction
of minority places of worship. Minister for revenue, Shri Haren
Pandya and health minister, Shri Ashok Bhatt led the mobs
enthusiastically in Ahmedabad. Shri Bharat Barot, a sitting
MLA, was also at the forefront. Residents of Paldi, from where
Shri Pandya was elected, actually saw him lead arson attacks. G
Shri Pandya’s election promise the last time was to wipe any
trace of Muslims out of Paldi”. (page-77 of Vo1.2)
“One of the most shocking aspects of the Gujarat carnage
was that the constituencies of some minister and sitting MLAs
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298 SUPREME COURT REPORTS [2022] 6 S.C.R.

A were the arena for the worst incidents of carnage. Bapunagar
in Ahmedabad, one of the worst affected areas, is the home
constituency of the minister of state for home, Shri Gordhan
Zadaphiya. Paldi, Ahmedabad is the constituency of Shri Haren
Pandya, former state home minister and, until recently, revenue
minister in Shri Modi’s cabinet”. (page-87 of Vol .2)
B
As regards the deposition of Late Haren Panda before
the Concerned Citizens Tribunal, further investigation has
established that the meeting convened at CMs residence,
was an essentially law and order review meeting that was
held on 27-02-2002 and that none of the Cabinet Ministers
C attended the same. Late Haren Pandya was not even a
Cabinet Minister at that time and was holding the portfolio
of Minister of State for Revenue. Shri Gordhan Zadafia, the
then MoS for Home also did not attend this meeting, as he
had stayed back at Godhra. In view of the version of all the
D senior officials of the Home and Police Department the
testimony of Late Haren Pandya before the Tribunal
becomes questionable.
As regards the entries made by Shri R.B. Sreekumar at
page-21 on 12-06-2002, in a register unauthorisedly maintained
E by him that the call details of the mobile phone of Late Haren
Pandya were handed over to Shri P.K. Mishra, the then Principal
Secretary to CM through Shri O.P. Mathur in his office, the same
appears to be doubtful as Shri Mathur has denied to have handed
over any such call details to Dr. P.K. Mishra in his office and that
Principal Secretary to CM never visited the office of the State
F IB, as stated in the said entry made in the register. Moreover, Shri
S.M. Pathak, the then Dy.SP, State IB has confirmed to have
conducted secret inquiry about one of the Ministers, which had
met a Forum of which Justice Krishna lyer, a retired Judge of
Supreme Court and some others were the members, who had
G come to Ahmedabad to enquire into the riots in the state. Shri
Pathak has also confirmed to have conducted secret inquiries,
which revealed that Late Haren Pandya had met and deposed
before them and that this fact was reported to Shri R.B. Sreekumar
orally. However, Shri Pathak has stated that he does not recollect,
as to whether he was asked to collect the mobile phone details of
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 299

Late Haren Pandya or not, which again creates a doubt about the A
entry made by Shri R.B. Sreekumar in his register. Shri PK. Mishra,
the then Principal secretary to CM has stated that he does not
recollect, as to whether be asked Shri R.B. Sreekumar to collect
the mobile call records of Late Haren Pandya and that no phone
call details were made available to him by either Shri Sreekumar
B
or Shri O.P. Mathur. No disclosure was made by Shri R.B.
Sreekumar about the said register in his deposition before the
Commission on 31-08-2004 or in any of the two affidavits filed by
him on 15-07-2002 & 06-10-2004. It is rather surprising that
this register saw the light of the day for the first time in the
year 2005, when Shri R.B. Sreekumar filed a copy of the C
same along with his third affidavit filed before the Nanavati-
Shah Commission of Inquiry on 09-04-2005. It may be
mentioned here that this affidavit was filed by Shri R.B.
Sreekumar after his super-session in promotion in February,
2005. In view of the fact that the register maintained by
D
Shri R.B. Sreekumar can not be considered to be an
authenticated document, the entries made by him in his
said register can not be considered to be reliable.
Further investigation revealed that Govt. mobile no.
9825039852 was allotted to Late Haren Pandya. The call
detail records of the said mobile phone for 27-02-2002 have E
been sorted out from CD made available by Shri Rahul
Sharma, DIG and the same show that Late Haren Pandya
remained at Ahmedabad City till 10:46:55 on 27-02-2002.
His location at Ahmedabad City again comes at 16:24:24
hrs and thereafter he remained at Ahmedabad City till F
22:52:07 hrs on 27-02-2002 and therefore, this would
conclusively establish that Late Haren Pandya did not
attend the law & order review meeting that took place at
CM’s residence at Gandhinagar on 27.02-2002 night.
--------------------------------------------------------------------------- G
Page: 430
In view of the aforesaid position, it appears that Late
Haren Pandya had misled the Hon’ble Members of
Concerned Citizen Forum namely, Mr. Justice (Retd.) P.B.
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300 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Sawant and Mr. Justice (Retd.) Hosbet Suresh that he was
present in the meeting called by the Chief Minister at his
residence on the night of 27-02-2002 with a view to increase
his credibility. It has been established beyond doubt that
Late Haren Pandya could not have been present in the said
meeting and that the so called evidence given by him was
B
only on hearsay basis. Since the statement made by Late
Haren Pandya is on hearsay basis, it is not admissible under
any provisions of law.
Observation made by Ld. Amicus Curiae:
C The statement of Shri RB. Sreekumar cannot be discarded
as hearsay, in the light of Section 6 of the Evidence Act.
Result of further investigation:
As far as allegation, which suggests that a statement
was made by the Chief Minister Shri Narendra Modi on
D 27.02.2002, in a meeting at his residence instructing the
senior officers to allow the Hindus to give vent to their
anger is concerned, it is significant that Shri R.B.
Sreekumar came on to the scene much afterwards and
evidence brought by him is all hearsay. Shri R.B. Sreekumar
E became Addl. (Int.) only on 09.04.2002 and had not attended
the meeting which was held much prior to his joining Ld.
Amicus Curiae is of the view that the above statement of
Shri R.B. Sreekumar cannot be discarded as hearsay in the
light of Section 6 of the Evidence Act. However, the facts
suggest otherwise. If there is an interval between the acts
F of occurrence and the statement made by the person
concerned, it blocks the statements so made from acquiring
legitimacy u/s 6 of the Indian Evidence Act.
Keeping in mind the principles of law laid down by the
Hon’ble Supreme Court of India in regards to hearsay evidence,
G it has been found that the evidence given by Shri R.B. Sreekumar
neither forms part of the same transaction nor the said statements
have been made by Shri Sreekumar at the time of occurrence of
the incident or at least immediately thereafter and, therefore are
not relevant as per Sec 6 of the Indian Evidence Act. In the
instant case, the so called evidence of Shri R.B. Sreekumar,
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 301

concerning the events before the riots was his own A
perception as he had no direct knowledge of the same.
Shri R.B. Sreekumar has contended that no follow up action
was taken on the reports sent by him on 24-04-2002, 15-06-2002,
20-08-2002 & 28-08-2002 about anti-minority stance of the
administration. A letter dated 24-04-2002 addressed to ACS B
(Home) with a copy to DGP contained an analytical note on current
communal scenario in Ahmedabad City, which is general in nature
and no specific instance has been cited. In brief, it has been
mentioned in this note that of late the minority community was
found to be taking an increasingly belligerent postures as they felt
themselves as a section of population left at a total mercy of radical C
communal elements of Bajrang Dal and VHP. It was further
mentioned chat the Muslim communities being the major victims
of the riots developed a major grudge against the Criminal Justice
System, which they felt was highly biased. According to Shri
Sreekumar certain VHP and Bajrang Pal leaders had started D
extorting protection money from the businessmen from both the
communities and were pressurising the merchants and general
public not to employ the members of the minority community. It
was further reported that both Hindu and Muslim communities
had been inciting violence by way of distribution of pamphlets.
E
Shri Sreekumar appeared on the scene 40 days after
the riots and whatever has been claimed by him has no direct
bearing on the facts in issue. Shri Sreekumar had also reported
that the inability of Ahmedabad police to control the violence by
the communal mob had eroded the image of police as a law
enforcing agency of the society and the media attacks on the F
police had a demoralising impact on the police personnel. It was
also pointed out that the Inspectors in charge of the police stations
had been ignoring the instructions given by the senior officers and
complying with the direct verbal instructions from the political
leaders of the ruling party, who ensured their placement and G
continuance in their choice postings. He had also suggested the
remedial measures such as restoration of faith amongst the
minorities in Criminal Justice system replacement of present
incumbents from executive posts at the cutting edge level, the
spiritual leaders of Hindus and Muslims should launch a state wide
H
302 SUPREME COURT REPORTS [2022] 6 S.C.R.

A campaign to expose the politicised pseudo religious leaders, action
at social level through non-political leaders, intellectuals and
---------------------------------------------------------------------------
Page: 431
B NGOs to restore mutual trust between the Hindus and Muslims,
improvement of security in the riot affected areas to facilitate the
rehabilitation of riot victims and purposeful legal action against
publication and distribution of pamphlets inflaming communal
passions etc.

C According to Shri Ashok Narayan, the then ACS (Home),
this letter contained general observations and concrete details were
missing. Shri K. Chakravarthi, the then DGP has stated that most
of the points and issues raised by Shri R.B. Sreekumar, had been
effectively dealt with by him in March-April/2002. He is also of
the view that the observations made by Shri Sreekumar were
D totally general in nature and no specific instance had been cited
by him, which could have called for any immediate action on his
part.
Shri R.B. Sreekumar had sent a review report of law &
order situation on 15-06-2002, in which he had mentioned about
E an unprecedented degree of revengefulness of the majority
community resulting in massive and ghastly violence against
Muslims in a period of five days since Godhra carnage and that
the communal violence was still continuing, Shri Sreekumar strongly
recommended for the implementation of remedial measures to
F contain communal violence and neutralizing the fundamentalist
element in both majority and minority communities as suggested
in his analytical nore dated 24-04-2002. This law & order
assessment report was called for in view of Rath-Yatra, which
was likely to be held sometime in July 2002. In this report, Shri
Sreekumar had expressed the view that on various grounds
G mentioned by him, the Rath-Yatra should not be taken out in near
future till an atmosphere of durable peace and goodwill between
the majority and minority communities was established. Shri Ashok
Narayan the then ACS (Home) has stated that the administration
did not agree with the views of Shri Sreekumar and the Rath-
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 303

Yatra was taken on 12-07-2002, under police bandobast and no A
untoward incident took place anywhere.
Shri R.B. Sreekumar has further stated that he had sent
another report on the then prevailing law & order situation vide
his letter dated 20-08-2002. According to Shri Sreekumar, even at
the time this letter was sent, the communal tension continued and B
the communal gap between Hindus and Muslims had widened to
an unprecedented degree. It was further mentioned that there
was latent communal tension in most of the places where incidents
were reported and that any minor issue involving members of
minority and majority community would reignite communal
passions resulting in clashes, as had been witnessed in Dhoraji C
(Rajkot District) on 17-08-2002. It was further mentioned by Shri
Sreekumar that large sections of the minorities being the major
victims of the recent riots were still to develop adequate faith in
Administration, Police Department and Criminal Justice System.
This letter was replied by Shri Ashok Narayan, the then ACS D
(Home) on 09-09-2002, in which he had clearly informed Shri
Sreekumar that his assessment of law & order situation was not
in tune with the feedback received from other agencies. Shri
Ashok Narayan further mentioned that some apprehension and a
feeling of insecurity amongst the members of the minority
community was understandable in isolated pockets from where E
incidents were reported, but the same do not indicate the feelings
of insecurity anymore. Shri Ashok Narayan has also mentioned
that Dhoraji’s incident was an isolated incident and that communal
incidents had come down drastically during the last few months.
Shri Ashok Narayan disagreed with the views of Shri F
Sreekumar on the ground that no broad based inputs were
relied upon by him before arriving at a conclusion.
Shri R.B. Sreekumar had sent another report regarding the
emerging law & order vide his letter dated 28-08-2002. In this
letter, he had assessed that the social relations between the Hindus G
and Muslims remained highly strained including the traditional
communal pockets as well as new areas where the riots had taken
place, due to various reasons. Shri Sreekumar had suggested that
District Magistrates/Commissioners of Police/Superintendent of
Police be suitably advised to ensure that the organizers of the
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304 SUPREME COURT REPORTS [2022] 6 S.C.R.

A public function/political campaign should avoid projecting
communal issues that might widen the rift between the two
communities and also to abide by the conditions of the license/
permission granted to them. Shri K. Chakravarthi has stated that
Shri R.B. Sreekumar had given same suggestions and most of it
pertained to the Revenue Department and other departments. As
B
far as police department was concerned, he (Shri
Chakravarthi) had given directions based on his
suggestions.
In view of the aforesaid position, it cannot be said
that no action was taken by the Govt. on the assessment of
C situation made by Shri R.B. Sreekumar. Of course, there
was difference of opinion between Shri R.B. Sreekumar and
the Home Department on certain issues. However, the fact
remains that Shri Sreekumar appeared on the scene 40
days after the riots and remained
D ---------------------------------------------------------------------------
Page: 432
posted as Addl. DG (In1.) for a little more that five months,
and therefore, whatever has been claimed by him has no
E direct bearing the issue i.e. events of 27/28-02-2002 or
subsequently in March 2002.
> Observation made by Ld. Amicus Curiae:
Another aspect is the fact that VHP General Secretary
Jaydeep Patel and Shri Modi were at Godhra on 27-02-2002.
F The statement of Jaydeep Patel that he did not meet Shri
Narendra Modi at Godhra does not inspire 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.
G Result of further investigation:-
Further investigation revealed that Shri Narendra Modi,
Chief Minister arrived at Godhra by helicopter around 1645 hrs
and was accompanied by Shri Anil Mukim, the then Secretary to
CM. He as received at the helipad by Smt. Jayanti Ravi and Shri
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 305

Ashok Bhatt and he straightaway drove to the Godhra Railway A
Station. CM inspected the spot and talked to some of the
persons gathered there. From Godhra Railway Station, he
went to Civil Hospital and saw the persons injured in the
Sabarmati Express train burning incident. Since, curfew had
been imposed in Godhra town, the Chief Minister then
B
proceeded to Collectorate and held a meeting with the
Ministers present there, namely Shri Ashok Bhatt, the then
Health Minister, Shri Gordhan Zadafia, the then MoS
(Home), Shri Bhupendra Lakhawala, the then MoS (Civil
Defence), Shri Prabhatsinh Chauhan, the then MoS for
Aviation & Pilgrimage and Shri Bhupendrasinh Solanki, the C
then MP, Godhra, Collector & District Magistrate, Police
Officers and Railway Officers. The Chief Minister had also
met the Press thereafter. Smt. Jayanti Ravi has stated to
SIT that in the meeting held at Collectorate, a unanimous
decision was taken that the dead bodies, which had been
D
identified should be handed over to their relatives at
Godhra itself and those bodies whose legal heirs or
guardians had not come, could be sent to Sola Civil Hospital,
Ahmedabad, since these deceased passengers were
heading towards Ahmedabad in Sabarmati Express. The
decision to send the bodies to Sola Civil Hospital was taken E
in view of the fact that it was situated on the outskirts of
Ahmedabad City and thus away from the crowded area for
security reasons. It has further come to light that out of 58
burnt and dead bodies, 4 bodies belonging to Dahod,
Vadodara, Panchmahal and Anand Districts were handed
F
over to their legal heirs/guardians after identification at
Godhra itself. The remaining 54 dead bodies were to be
sent with police escort to Sola Civil Hospital, Ahmedabad
and Shri Jaydeep Patel, who was present at Collectorate,
was to accompany these dead bodies to Ahmedabad.
Further investigation revealed that Shri M.L. Nalvaya, the G
then Mamlatdar & Executive Magistrate prepared a letter
addressed to Dr. Jaydeep Patel of VHP, in which he had mentioned
that 54 dead bodies were being sent through five trucks as detailed
below:
H
306 SUPREME COURT REPORTS [2022] 6 S.C.R.

A

B

Shri Hasmukh T. Patel of VHP had acknowledged the
receipt of dead bodies. It may be mentioned here that the
handing over of the bead bodies to their legal heirs/
guardians was the duty of the railway police, which had
C
registered a case in connection with this incident.
On his further examination Shri Nalvaya has stated
that these dead bodies were handed over officially to Shri
Jaydeep Patel and Shri Hasmukh T. Patel of VHP as per
the instructions given by Smt. Jayanti S. Ravi, District
D Magistrate, Godhra and Late B.M. Damor, ADM, Godhra.
Shri M.L Nalvaya has filed an affidavit, before Nanavati
Commission of Inquiry to this
---------------------------------------------------------------------------

E Page: 433
effect on 05-09-2002. However, Smt. Jayanti Ravi has stated
that no such instructions were given to Shri Nalvaya to hand
over the dead bodies to Shri Jaydeep Patel or Shri Hasmukh
T. Patel of VHP and that Shri Jaydeep Patel was merely to
F accompany the dead bodies to Ahmedabad.
Shri Jaydeep Patel visited Godhra on 27-02-2002 and was
present at the Collectorate. Further investigation revealed that as
per the call detail records of mobile phone no. 9825023887 of Shri
Jaydeep Patel, he reached Godhra on 27-02-2002 around 1248
hrs and remained there till 2358 hrs. At Godhra, he had made/
G
received calls to/from Shri Gordhan Zadafia at the latter’s mobile
phone no. 9825049145. All these calls had been made/received
between 2003 hrs and 2113 hrs. It is, therefore, quite possible that
Shri Gordhan Zadafia, the then MoS (Home), might have instructed
the police authorities to allow Shri Jaydeep Patel to accompany
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 307

the dead bodies. The aforesaid call detail records establish that A
Shri Jaydeep Patel remained at Godhra till about 2358 hrs on
27-02-2002.
Shri Jaydeep Patel has stated that he did not meet Shri
Narendra Modi, Chief Minister. Since most of the persons, who
had died in Godhra carnage were the karsevaks of Vishwa Hindu B
Parishad, he met some local administrative and police officials,
whose names he could not recollect at this stage, and requested
them to hand over the dead bodies of the Karsevaks to him for
onward transportation to Ahmedabad. The district officials accede
to his request and accordingly a letter was prepared by Mamlatdar
and Executive Magistrate, Godhra in his name specifying the details C
of the dead-bodies and the number of trucks in the same. Shri
Hasmukh T. Patel of VHP, who had accompanied him,
acknowledge the receipt of these dead-bodies as per his signature
appering on the list. It may be mentioned here that 58 persons had
dies in this incident out of which 4 persons were identified at D
Godhra railway station itself by their relatives. The dead-bodies
of these four persons were handed over to their relatives after
identification. Five trucks were arranged by the district
administration for the transportation of the dead bodies. Shri
Jaydeep Patel has stated to have met the lady collector of Godhra
around 23.30 or 24.00 hours. A police escort had accompanied E
the dead bodies from Godhra and on the way to Ahmedabad the
escorts from the concerned districts joined. The convoy reached
Sola Civil Hospital, Sola, Ahmedabad between 0330 hours to 04.00
hours on 28.02.2002. At Sola Civil Hospital, a lady doctor, PI Shri
Lathia of Sola Police station, Shri Prajapati, Deputy Collector, F
Collector and Mamlatdar were present. There were several other
administrative and police officials present there, whose names he
does not recollect. He handed over the letter to Shri Prajapati,
Deputy Collector. Thereafter, the police and administrative officials
got busy with the preparation of panchnama and other papers.
G
Further investigation revealed that the relatives of
the persons, who had died in the Godhra carnage, were
also present in the hospital. Accordingly, 35 persons were
identified and their dead bodies handed over to their

H
308 SUPREME COURT REPORTS [2022] 6 S.C.R.

A relatives by about 1300 hrs on 28-02-2002 by the police
after obtaining the receipts from them. It may be mentioned
here that 25 dead bodies were claimed by the residents of
Ahmedabad, two (2) by the residents of Kadi, Mehsana,
five (5) by the residents of Anand, two (2) by the residents
of Khedbramha, Sabarkantha and one (1) from Rajkot. The
B
photographs and DNA samples of the remaining
unidentified 19 dead bodies were taken by the hospital
authorities. These 19 unidentified dead bodies were
cremated on 28-02-2002 evening, at Gota cremation ground
nearer to the Sola Civil Hospital by the District
C Administrative and Police officers with the help of Surpanch
of Gota village. The cremation was completed by about 1830
hrs on 28-02-2002.
Shri Narendra Modi, Chief Minister had earlier stated that
Shri Jaydeep Patel, the then VHP General Secretary was known
D to him. However, he does not remember to have met him at
Godhra. According to Shri Modi, after the decision was taken to
transport the dead bodies to Ahmedabad, it was the duty of the
District Administration to chalk out the modalities for its
transportation.
E It may thus be seen that the journey from Godhra to
Ahmedabad started around midnight and the dead bodies reached
Sola Civil Hospital sometime between 0330 to 0400 hrs and there
was no one on the highway at that point of time in the night to see
them. Further, though a letter had been addressed by Shri M. L.
Nalvaya in the name of Shri Jaydeep Patel of VHP and the dead
F bodies were acknowledged by Shri Hasmukh T. Patel of VHP,
yet the dead bodies were escorted by the police upto Sola Civil
Hospital, Ahmedabad situated on the outskirts of Ahmedabad City.
At Sola Civil Hospital, Shri Jaydeep Patel handed over the letter
to the hospital authorities and the local police as well as the hospital
G authorities took charge of the dead bodies. Subsequently, 35 dead
bodies were handed over to the legal heirs/guardians of the
deceased by
---------------------------------------------------------------------------

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 309

Page: 434 A
the police after preparing the panchnama and documentation. The
19 unidentified dead bodies were cremated on the same evening
by the local administration and police authorities at Gota cremation
ground nearby with the help of Sarpanch of Gota village after
retaining their DNA samples. Subsequently, 12 dead bodies could B
be identified after conducting DNA tests, while the remaining
seven (7) remained unidentified.
The above facts would go to establish that though a
letter had been addressed by Mamalatdar, Godhra to Shri
Jaydeep Patel of VHP, yet the dead bodies were escorted C
by the police from Godhra to Ahmedabad, where the same
were taken charge of by the hospital authorities, District
Administrative and Police Officers and handed over to the
kith and kin of deceased persons after taking proper
receipt. Shri M.L. Nalvaya, Mamalatdar had acted in an
irresponsible manner by issuing a letter in the name Shri D
Jaydeep Patel in token of having handed over the dead
bodies which were case properly, and therefore, the Govt.
of Gujarat is being requested to initiate departmental
proceedings against him.
Observations made by Ld. Amicus Curiae: E

The positioning of 2 Cabinet Ministers having nothing to do
with the home portfolio in the Office of DGP and the State
police Control Room respectively is another circumstance
which reflects that there was a direct instruction from the
Chief Minister. Though Shri Jadeja says that he had gone to F
the DGP’s office on instructions of Shri Gordhan Zadafia,
MoS (Home) this is highly unbelievable. It is obvious that the
Chief Minister had positioned these 2 Ministers in highly
sensitive places which should not have been done. Infact, these
2 Ministers could have taken active steps to defuse the riots, G
but they did nothing, which speaks volumes about the decision
to let the riots happen. It does not appear that these 2 Ministers
immediately called CM and told him about the situation at
Gulberg and other places.

H
310 SUPREME COURT REPORTS [2022] 6 S.C.R.

A SIT merely relied upon the statement of the police officers to
conclude that these 2 Ministers did not give any instructions
to Police department, but it appears highly unlively that 2
Cabinet Ministers of the Government of Gujarat would have
not given some kind of directions when CM had directed them
to remain present.
B
It is obvious that the 2 Ministers were fully aware of the
developing situation in Gulberg Society, Naroda Patiya etc,
in Ahmedabad City. They were duty bound to convey the
situation to the Chief Minister and were required to do
everything possible to save loss of lives. If the stand of CM
C that these 2 Ministers were positioned so as to effectively
control the law and order situation is correct, then there would
have been a far quicker action to control the riots in Gulberg
Society and Naroda Patiya atleast.
Result of further investigation:
D
Further investigation has been conducted into the allegation
relating to the. positioning of Shri I.K. Jadeja, the then Urban
Development Minister in the State Police Control Room, DGP’s
office and Late Ashok Bhatt, the then Health Minister in the
Ahmedabad City Police Control Room.
E
Shri K. Chakravarthi, the then DGP has stated during further
investigation that Shri Ashok Narayan, ACS (Home) informed
him that it was decided by the Govt. that Shri I.K. Jadeja, the then
Minister would be in his office to secure some information about
the law & order situation in the State as State Control Room is
F situated in DGP’s office. Shri Ashok Narayan had further informed
him that Late Ashok Bhatt another Minister would sit in Ahmedabad
City Police Control Room. Shri Chakravarthi has further stated
that he had his own reservations in this matter and, therefore, he
advised the ACS (Home) that it would be better, if these Ministers
G got the information from the Control Room in the Home
Department. However, Shri Ashok Narayan informed him that
no such facility was available with him in the Home Department
and, therefore, the two Ministers would come to the respective
Control Rooms.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 311

According to Shri Chakravarthi, Shri I.K, Jadeja, the then A
Minister came to his office in the forenoon of 28-02-2002 and sat
in his chamber for about 15-20 minutes. Shri Chakravarthi could
not attend to him, as he was awfully busy with the telephone calls
being received by him from all over the State. According to his
recollection, he had asked someone to shift the Minister
B
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Page: 435
to an empty chamber in his office and this was done. He has also
stated that he was not aware as to what Shri Jadeja did while he
was in the DGP’s office as he was extremely busy with his work C
on that day as rioting was taking place at many locations. Later,
Shri Chakravarthi came to know that Shri Jadeja had left his office.
Shri Chakravarthi has categorically stated that his enquiries with
the staff of the State Control Room had revealed that Shri Jadeja
did not interfere with the functioning of the Control Room in any D
manner.
Shri P.C. Pande, the then CP, Ahmedabad City has stated
that it was incorrect to say that Shri Ashok Bhatt, the then Health
Minister remained stationed at Shahibaug Control Room on
28-02-2002 to guide the police force in controlling the law & order E
situation. He specifically asserted that Shri Bhatt did not visit CP’s
office Control Room on 28-02-2002. He has further stated that
Shri George Fernandes, the then Union Defence Minister arrived
at Ahmedabad on 28-02-2002 night. Shri Fernandes reached CP’s
office on 01-03-2002 around 1000 or 1030 hrs and asked Shri
Pande about the deployment of Army, to which the latter said that F
he would check up the same from the Control Room. Both of
them went to the Control Room downstairs. According to Shri
Pande, Shri Ashok Bhatt, who had been waiting for Shri Fernandes
in the Circuit House, also came to CP’s office to meet Shri
Fernandes and entered the Control Room. Shri Pande has also G
stated that Shri Fernandes and Shri Ashok Bhatt remained in the
Control Room for about ten minutes and then left CP’s office.
According to Shri Pande, during this visit to the Control Room,
some of the press and media persons were also present and as
such it was somehow made to appear that Shri Ashok Bhatt had
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312 SUPREME COURT REPORTS [2022] 6 S.C.R.

A come to monitor the Control Room. Finally, Shri Pande has stated
that Shri Ashok Bhatt was never deputed to Shahibaug Police
Control Room to assist the police.
According to Shri Ashok Narayan, he does not recall any
instructions given by the Chief Minister, which were conveyed by
B him either to the DGP or CP, Ahmedabad City to the effect that
Shri Ashok Bhatt and Shri I.K.Jadeja would sit in the Ahmedabad
City Police Control Room, Shahibaug and State Control Room,
Gandhinagar respectively to assist/help the police.
Shri I.K. Jadeja, the then Urban Development Minister has
C stated that it was an established norm in Gujarat State that in case
of any natural calamities or serious law & order situation the
Ministers of various departments extend their help in handling the
crisis. According to his recollection on 28-02-2002, he had
volunteered himself, if he could be of any help in the prevalent
situation, to which Shri Gordhan Zadafia, the then MoS (Home)
D had told him to remain present in the Police Bhavan and to see
that in case any information was received in the State Control
Room about any rioting incident and any information was received
seeking extra police force, then the same should be passed on to
the Home Department. Consequent to these instructions, he went
E to DGP’s office around 1100 hrs and stayed there for 2-3 hours.
He has stated to have interacted with the DGP and informed him
that if and when his help was required he could ask him. He has
denied to have entered the State Police Control Room and has
stated that there was no question of any interference. However,
Shri Gordhan Zadafia, the then MoS (Home) has denied to have
F any given any suggestion to Shri I.K. Jadeja. He has further stated
to have visited the DGP’s office on the next one or two days also,
but stayed there for few minutes only. He has also stated that the
DGP had not shared any information with him and therefore, he
left Police Bhavan in few minutes on both these occasions.
G Late Ashok Bhatt had earlier stated that he might have
visited Ahmedabad City Control Room for about 5-10 minutes on
28-02-2002. However, he has denied to have interfered with the
police work, as being a senior minister he had to maintain his
dignity and status. Again on 01-03-2002, he admitted to have visited
H the Shahibaug Control Room for about 10 minutes to meet Shri
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 313

George Fernandes, who had gone to CP’s office. The call detail A
records of mobile phone no. 9825039877 of Late Ashok Bhatt
show that he returned from Godhra to Ahmedabad on 28-02-2002,
at about 05:16:51 hrs. Thereafter, the call details do not show its
location till 15:50:43 hrs on 28-02-2002, when the location was
traced to Kaba Circle, Gandhinagar. During this period, it is
B
presumed that he was at Gandhinagar. His location on 28-02-
2002 at 16:16:37 hrs to 17:47:22 hrs was shown as Shahibaug
Kedar Tower, Ahmedabad City, which would conclusively prove
that during this period he attended CM’s press conference at Circuit
House Annexe, Shahibaug, Ahmedabad City. Thereafter, again
the location was seen at 17:59:22 hrs at Koba Circle, Gandhinagar, C
which shows that he was returning to Gandhinagar. These call
details would go to show that he did not visit Shahibaug Police
Control Room on 28-02-2002.
---------------------------------------------------------------------------
Page: 436 D

Shri Sanjiv Bhatt, the then DC (Int.) has stated that he had
attended a meeting at CM’s residence on 28-02-2002 along with
the DGP and ADGP (Int.). After the meeting, he returned to his
chamber on the second floor of Police Bhavan at about 1100 hrs
and shortly thereafter went to meet the DGP on the first floor of E
the same building. When he entered DGP’s chamber he found
that as instructed after the conclusion of CM’s meeting, two
Cabinet Ministers of Gujarat, namely, Shri Ashok Bhatt and Shri
I.K. Jadeja had already arrived and were sitting on a sofa-set in
DGP’s chamber. He further stated that Shri G.C. Raiger, the then F
Addl. DG (Int.) and Shri Maniram, the then Addl. DG (Law &
order) were also present there. Shri Sanjiv Bhatt briefed DGP
and after taking tea, he returned to his chamber. Shortly thereafter,
Shri Sanjiv Bhatt happened to go to State Control Room on first
floor to collect some documents and saw Shri I.K. Jadeja and his
supporting staff sitting in the chamber of Dy.SP, Control Room. G
Finding this a little odd, Shri Sanjiv Bhatt went to DGP and informed
him that it would be improper to permit outsiders in the State
Control Room and asked him whether the Minister and his
supporting staff could be shifted from the State Control Room.
DGP agreed with him and thereafter, Shri Sanjiv Bhatt again went H
314 SUPREME COURT REPORTS [2022] 6 S.C.R.

A to Control Room and requested Shri I.K. Jadeja to accompany
him as his presence in the Control Room would hamper the smooth
functioning of the State Control Room, during such a critical period,
whereupon the latter got up and followed him. According to Shri
Sanjiv Bhatt, he took Shri Jadeja, Minister to the chamber of Shri
P.C. Thakur, the then IGP, which was empty at that time and
B
requested him to make himself comfortable and contact them for
any assistance/requirement. Shri Chakravarthi was informed about
it. Shri Sanjiv Bhatt has also stated that subsequently he learnt
that Shri Jadeja left the Police Bhavan sometime in the afternoon,
after having lunch. Shri Sanjiv Bhatt is not aware about the visit
C of Shri Jadeja in the Police Bhavan on the subsequent days.
During further investigation, Shri Nissar Mohammad Malik,
the then PSI, who was on duty in the Police Control Room,
Ahmedabad City from 28-02-2002 at 0800 hrs to 02-03-2002 at
0800 hrs, has stated that Shri George Fernandes, the then Union
D Defence Minister and Shri Harin Pathak, the then MoS for
Defence had come to Police Control Room, Ahmedabad City at
1005 hrs on 01-03-2002, and left at 1025 hrs. He has confirmed
the wireless message in this regards to be under his signature. He
has denied knowledge about the visit of Late Ashok Bhatt, the
then Health Minister to the Police Control Room either on 28-02-
E 2002 or 01-03-2002. Shri. V.R. Patel, the then PSI has also denied
the visit of Late Ashok Bhatt, the then Health Minister to the
Police Control Room either on 28-02-2002 or 01-03-2002.
Shri V.R. Patel, the then PSI has also denied the visit of
Late Ashok Bhatt, the then Health Minister to the Ahmedabad
F City Police Control Room either on 28-02-2002 or 01-03-2002.
Shri Parbatsinh A. Dholetar, the then PSI, Ahmedabad City
Police Control Room, who was on duty on 28-02-2002 from 0800
hrs to 1200 hrs and 2000 hrs to 2400 hrs, has denied the visit of
any Minister to the Police Control Room.
G
Shri Maganbhai M. Limbachia, the then PI, who was on
duty from 0800 hrs to 2000 hrs on 01-03-2002 in State Police
Control Room, Police Bhavan Gandhinagar, has denied the visit
of any Minister in the Control Room.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 315

It may thus be seen that Shri K. Chakravarthi has A
categorically stated that Shri I.K. Jadeja did visit his office,
but did not go to the State Control Room and he was made
to sit in an empty chamber. Shri I.K. Jadeja himself has
confirmed that he was shifted to an empty chamber near
DGP’s chamber and that DGP did not share any information
B
with him. Shri K. Chakravarthi, the then DGP has confirmed
that Shri Jadeja did not interfere with their work.
Shri I.K. Jadeja has taken the plea that it is an
established practice in Gujarat State that in case of any
natural calamities or serious law & order situation the
Ministers of the various departments extend their help in C
handling the crisis. Late Ashok Bhatt had admitted earlier
that he might have visited Ahmedabad City Police Control
Room on 28-02-2002 for a few minutes, but the call detail
records of his official mobile phone show his location at
Shahibaug Kedar Tower between 16:16:37 and 17:47:22 D
on 28-02-2002, when he attended CM’s press conference.
This would conclusively prove that he did not visit the Police
Control Room on 28-02-2002. Moreover, the officials of
Ahmedabad City Police Control Room have denied that
Late Ashok Bhatt ever visited the said Control Room either
on 28-02-2002 or 01-03-2002. In view of the aforesaid E
position, it is established that Shri I.K. Jadeja did visit
DGP’s office, but did not enter the State Control Room or
interfere with the working of the police and the DGP also
did
--------------------------------------------------------------------------- F

Page: 437
not share any information with him. However, it could not
be established that Late Ashok Bhatt visited Ahmedabad
City Police Control Room either on 28-02-2002 or G
01-03-2002. As per his own admission he might have visited
the Control Room for a few minutes on 28-02-2002 and/or
01-03-2002. Therefore, the allegation that the two
Ministers were positioned in the State Control Room and
Ahmedabad City Police Control Room by the Chief
H
316 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Minister is not established. Significantly, Shri I.K. Jadeja
remained at State Police headquarters for 2/3 hours as per
his own admission but did not interfere in the police
functioning. Late Ashok Batt’s presence in the City Police
headquarters on the relevant day, if any, was very negligible
and it cannot be termed of any material value. In the absence
B
of documentary/oral evidence of any directions given by
these two Minister IO Police officials, it can not be said at
this stage that they conspired in the preparation of riots or
did not take any action to control the riots.
Observation made by Ld. Amicus Curiae:
C
No tangible action seems to have been taken by the police
high ups in the Police Department, namely Commissioner of
Police, to control the riots at Gulberg Society. Gulberg Society
is not very far away from the Office of Commissioner of Police,
Ahmedabad.
D
Result of further investigation:
Further investigation conducted about the role played by
Shri P.C. Pande, the then Commissioner of Police, Ahmedabad
City revealed that on 27-02-2002, Shri Pande remained in the
E office till late in the night as well as in the early hours of 28-2-
2002. During this period, he had informally discussed the law &
order situation and the arrangements to be made on 28-2-2002,
with Shri Shivanand Jha, the then Addl. CP, Sector-1 and Shri
M.K. Tondon, the then Jt. CP, Sector-II. On 28-2-2002, Shri Pande
came to office around 08:00 hrs. After sometime, he came to
F know that the dead bodies of victims of Godhra incident had been
brought to Sola Civil Hospital and that some kind of dispute/
altercation was going on and the atmosphere was tense at Sola
Civil Hospital. Accordingly, Shri P.C. Pande went to Sola Civil
Hospital around 10:00 hrs and found that the doctors were under
G pressure to complete the documentation whereas the relatives of
the victims were in a hurry to take the dead bodies. However,
Shri Pande did not find anything alarming and, therefore, returned
to his office at about 11:00 hrs.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 317

On the way, he found that the mobs had assembled at many A
places in large numbers, but they were not violent and most of
them being spectators. While Shri Pande sat in his office, the
reports started pouring in from all parts of the city about stone
pelting, arson, looting and damaging of properties. He does not
exactly remember, but whenever any information came to him
B
about any incident or any distress call was received from any
individual the same was promptly attended and the information
immediately passed on to the concerned officer with instructions
to attend to it on priority basis. The Control Room was flooded
with numerous calls for help and as such with the available force
it was not possible to effectively deal with all the situations. It C
may be mentioned here that on that day many distress calls had
been received from Police Station areas like Satellite, Navrangpura,
Ellisbridge, Bapunangar, Amraiwadi, Meghaninagar, Naroda and
Odhav, which had comparatively faced lesser communal problems
in the past. A few calls had been received from walled city as
D
well namely Shahpur in particular, but the extent of damage was
much less. Keeping in view the gravity of the situation curfew
was declared in many parts of the city from 1220 hrs onwards.
As far as Shri P.C. Pande recollects, he had instructed Shri
M.K. Tandon, the then Jt. CP, Sector II on 28-2-2002 forenoon,
to go to Meghaninagar as some calls of crowd gathering and stone E
pelting etc were being received in the Control Room Meghaninagar
P.S. area. He has stated that he did not know Late Ahesan Jafri,
Ex-MP personally and also did not have knowledge that he was
residing in Gulberg society till 28-02-2002 afternoon.
Shri P.C. Pande had earlier stated that Shri M.K. Tandon, F
Jt. CP, Sector-II had reached Naroda Patiya around 12:30 hours
and had Spoken to him over mobile phone that the situation was
alarming and recommended that curfew should be declared in the
Naroda P.S. area. He concurred with the advice of Shri Tandon
and curfew was declared in Naroda P.S. area at about 12:30 hrs. G
Shri Pande has also stated that Ahmedabad City was totally
disturbed and communication as well as transport system had come
to standstill. According to Shri Pande, the additional force wherever
sent was unable to reach in time because the roads had been
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318 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Page: 438
blocked/obstructed by the rioters by putting different kind of
obstacles and large crowds had collected making movement
difficult.
On 28-2-2002 at about 12:20 hrs, a message was sent by
B PI Meghaninagar P.S. in the Control Room that Gulberg society
in Meghaninagar area which is a Muslim society had been
surrounded by a mob of 10,000, which was pelting stones and
also setting fire to shops nearby and rickshaws. He requested for
additional officers police personnel and SRP immediately. On
C receipt of this message, Shri P.C. Pande deputed three officers
namely Shri G.D. Solanki, Dy. SP, Group-VII, Shri Ajitkumar Gupta,
Dy. SP, Group-XII and Shri A.B. Qureshi, PI, CID Crime to go to
Gulberg society for the assistance of PI Meghaninagar. At about
13:45 hrs. one section of CISF was also sent to Gulberg society,
Meghaninagar. At 1405 hrs., Shri M.K. Tondon, Jt. CP, Sector-II
D sent a message to the Police Control Room that Late Ahesan
Jafri Ex-MP and others had been surrounded by the mob in Gulberg
society and extra force and PI, Sardarnagar be sent there to shift
them. At 14:14 hrs, another message was sent by Senior PI Erda,
Meghaninagar P.S. in the Police Central Room that a mob of
E about 10,000 persons had gathered at Gulberg society/Kalapinagar
and was about to set fire to the entire society and as such ACP,
DCP along with additional force be sent immediately. At 14:45
hrs, Shri K.G. Erda, Sr.PI Meghaninagar sent another message to
the Control Room that in the Gulberg society in Meghaninagar
area, the Muslims had been surrounded by a mob of 10,000 persons
F from all the sides and even the police force had also been
surrounded and that the mob was about to set fire to the society.
Shri Erda requested for additional SRP and police force to be sent
as the situation was critical. Since, two Dy. SsP, One PI and one
section of CISF had already been sent to Gulberg society, no
G additional force was sent as nothing was available as reserves.
Shri Pande contacted Shri P.B. Gondia, the then DCP, Zone-IV
at 15:16 hrs and told him that Muslims were being burnt in the
Gulberg Society and that he should reach there immediately.
However, Shri Gondia reached Gulberg Society only at 1605 hrs.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 319

At about 15:45 hrs, Shri M.K. Tandon, the then Jt. CP, Sector-II A
though fully aware of the situation at Gulberg Society sent a
message to Ahmedabad City Police Control Room asking as to
whether there was any incident relating to loss of life at Gulberg
society at Meghaninagar and thereof a detailed report be sent to
him. No other information was available with the Control Room
B
at that time. Shri Pande has also stated that Shri K. Chakravarthi,
the then DGP had also informed him that a mob had surrounded
the Gulberg Society and that reinforcements should be sent there,
to which he had informed him that extra force and officers had
already been sent to Gulberg Society in Meghaninagar P.S. area.
However, Shri Pande has claimed that he did not know as to C
when the additional police force sent by him had actually reached
Gulberg Society. He has stated that he had come to know about
the incident at Gulberg Society sometime in the evening and as
such personally visited the society sometime between 19:00 hrs
to 19:30 hrs. Shri Pande found that the houses were ransacked
D
and belongings set on fire and some wooden articles/furniture
etc. was still smoldering. According to Shri Pande, since the Jt.
CP had already shifted most of the inmates of the society in vans
to safer places, he gave instructions to the Sr. PI and other staff
present over there to go ahead with the inquest and send the dead
bodies for post-mortem examination. He returned to office E
thereafter.
As per Shri Pande, Late Ahesan Jafri, Ex-MP did not contact
him either on his landline phone or mobile phone on 28-2-2002,
seeking help. No one else from Gulberg society contacted him
either on his landline or mobile phone seeking help on 28-2-2002. F
The call detail records of official mobile phone no. 98250 48303
of Shri Pande have been scrutinised and the same does not show
any call from the landline no. 2125166 of Late Ahesan Jafri, Ex-
MP. Shri Pande has further stated that as per his information,
Late Ahesan Jafri, Ex-MP did not have any mobile phone and
there was no other landline in Gulberg Society. G

Shri Pande has added that on 28-2-2002, requests were
received from different police stations areas seeking additional
force/SRP and whatever resources were available with him, the

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320 SUPREME COURT REPORTS [2022] 6 S.C.R.

A same were dispatched to them. However, he found that no
feedback had been received from anyone of them. This led him
to presume that the additional force reached them in time and that
they were able to control the situation. Shri Pande is also of the
view that similar was the case of Gulberg Society where initially
three officers, two Dy. SsP and one Pl and subsequently one
B
section of CISF was sent by him.
Shri Pande also stated that on 28-2-2002 around 2 o’clock
in the afternoon, he heard a noise outside the CP’s office. He
immediately checked and found that a dargah adjoining CP office
had been attacked by a mob. Since, there was no other force
C available with him, he
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Page: 439
personally came down and went to the spot along with his gunman.
D He has claimed to have dispersed the mob almost single handedly
and waited there for sometime to ensure that the mob did not re-
assemble. By this timely action, the dargah could be saved from
the rioters.
Shri P .C. Pande has stated that the circumstances did not
E exist on 27-2-2002 or even 28-2-2002 to variant the imposition of
curfew, in Ahmedabad City and any hasty action would have led
to the panic in the city. He has further stated that even otherwise
with limited force available enforcement of curfew poses serious
problems and large scale breach becomes common. According to
F Shri Pande, as and when the sector commanders reported over
phone about the seriousness of the situation at any place, he
immediately concurred over telephone and ordered for the
imposition as well as enforcement of the curfew. As per Shri
Pande, almost the whole of the city was under curfew by noon
time. In view of this, there does not seem to be any deliberate and
G gross negligence on his part.
Shri Nisar Mohd. Malik, the then PSI, Police Control Room,
Ahmedabad City, who was on Police Control Room duty from
0800 hrs on 28-02-2002 to 0800 hrs on 02-03-2002, has stated
that he was not aware or any communications of Shri P. C. Pande,
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 321

the then CP, Shri M. K. Tandon, the then Jt. CP, Sector-II Shri A
Shivanand Jha, the then Addl. CP, Sector-I or any other officer on
28-02-2002 and 01-03-2002, which might have suggested/instructed
for inaction on the part of police while dealing with the Hindu
rioters. He has further stated that the instructions/messages of
the senior officers, which were passed through Ahmedabad City
B
Police Control Room, were for taking all the required measures
to control the riots and prevent any untoward incident. Shri Malik
has also stated that Shri P.C. Pande, the then CP had visited the
Police Control Room and passed on the instructions personally to
the jurisdictional officers to use effective force and control the
riots. He does not remember the exact date and time of the said C
message passed on by Shri Pande, but had noted down the said
instructions in the message register of PCR, Ahmedabad City.
He has also stated that as and when CP was made aware of
messages regarding law & order situation, he had passed necessary
instructions such as imposition of curfew and deployment of
D
manpower. Shri Malik has denied the visit of Late Ashok Bhatt,
the then Health Minister to the Control Room.
Shri V.R. Patel another PSI, who was on duty in Ahmedabad
City Police Control Room from 0800 hrs on 28-02-2002 to 0800
hrs on 02-03-2002 has fully corroborated the statement of Shri
Nissarmohmad Malik, the then PSI. E

Shri Shivanand Jha, the then Addl. CP. Sector-l, Ahmedabad
City had stated that there were no instructions from any of the
senior officers not to act or to allow the Hindus to vent their anger.
Shri M.K. Tandon, the then Jt. CP, Sector-II had also stated F
that no such instructions were given by any of the senior officers
to allow the Hindus to vent their anger against Muslims in the light
of Godhra carnage and that the police should not act against them.
Shri Tondon has further stated that on the contrary the instructions
were given to deal with the situation firmly.
G
Shri Pande has explained that the mobs had swelled
to such an extent that they openly defied the curfew orders
and as and when they were challenged by the police, they
hid themselves in the lanes and after the police left they
regrouped. He is also of the considered opinion that this
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322 SUPREME COURT REPORTS [2022] 6 S.C.R.

A had happened due to the inadequate number of policeman
on duty and those present could not leave the places where
they were deputed. He stated that the police force was
engaged in a particular area, the mobs concentrated on other
areas. Similarly, the fire tenders sent to Gulberg society
and Naroda could not reach there in time due to obstacles
B
put on by the rioters resulting in loss of life and property in
these areas. He has also mentioned that the Meghaninagar
and Naroda P.S. had never been communally sensitive in
the past and as such the attacks in Naroda Patiya and
Gulberg society were beyond their expectations. In view
C of the aforesaid position, the allegation that Shri Pande did
not take adequate actions to control the situation at Gulberg
Society is not established.
Observation made by Ld. Amicus Curiae:
The observation of Shri Modi in a television interview on
D 01-03-2002 clearly indicates that there was an attempt to
justify the violence against the minority community. This
indicates as certain approach. The statement made by Shri
Modi cannot be seen in isolation. It has to
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E
Page: 440
be seen in conjunction with other facts mentioned hereinabove
which provides sufficient justification for a detailed
investigation in the matter.
F Result of further investigation:
During further investigation, a requisition was sent
to the Zee TV to make available a copy of the CD of a
television interview of Shri Narendra Modi, Chief Minister,
Gujarat conducted by their correspondent Shri Sudhir
G Chaudhary on 01.03.2002. Despite two reminders and a
notice u/s 91 Cr.P.C. sent to them, the CD has not been
made available.
Shri Sudhir Chaudhary has stated that he attended a
press conference held by Shri Narendra Modi on
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 323

01-03-2002, at a Circuit House on the outskirts of A
Gandhinagar. He has further stated that Shri Narendra Modi
was known to him and that he had interviewed him earlier
several times in Delhi. Shri Sudhir Chaudhary has stated
to have requested Shri Narendra Modi for a short interview
after the conference to which the latter agreed and as such
B
he was interviewed for about 10 minutes. After going
through the Editor’s Guild Fact Finding Mission report
dated 03.05.2002, Shri Chaudhary has stated that the same
were only a few excerpts from the said interview and that
the original CD of the said interview was not before him.
As per his recollection, he had questioned Shri Narendra C
Modi about the Chamanpura massacre (Gulberg Society
Case), in which former Congress MP Late Ahesan Jafri
had been killed with many others to which the Chief
Minister had replied that the mob had reacted on account
of private firing done by Late Ahesan Jafri, Ex-MP. After
D
refreshing his memory from the Editor’s Guild report, Shri
Sudhir Chaudhary has stated that the Chief Minister was
of the view that he neither wanted action nor reaction. He
has further stated to have questioned the Chief Minister
about the wide spread violence post Godhra, the Chief
Minister stated as follows:- E
“Godhra main jo parson hua, jahan par chalees (40)
mahilaon aur bacchon ko zinda jala diya is main desh
main aur videsh main sadma pahuchna swabhavik tha.
Godhra ke is ilake ki criminal tendencies rahi hain. In
logon ne pahele mahila teachers ka khoon kiya Aur ab F
yeh jaghanya apraadh kiya hai jiski pratikria ho rahi hai”.
Shri Sudhir Chaudhary has shown his inability to
elaborate the same as he has not been able to recollect the
exact sequence of events after a span of 9 years and
moreover, the CD was not before him. G
Shri Narendra Modi had been questioned about the
aforesaid interview given to Zee TV on 01.03.2002. He has
stated that those who have read the history of Gujarat would
definitely be aware that communal violence in Gujarat has
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324 SUPREME COURT REPORTS [2022] 6 S.C.R.

A a long history and the State had witnessed serious incidents
of such communal violence. As regards the Zee TV
interview of 01.03.2002 is concerned, Shri Modi has stated
that after a period of eight years, he did not recollect the
exact words, but he had always appealed only and only for
peace. He (Shri Modi) had further stated that he had tried
B
to appeal to the people to shun violence in straight and
simple language. He had also stated that if his words cited
in this question are considered in the correct perspective,
then it would be evident that there is a very earnest appeal
for people refraining from any kind of violence. He had
C denied all the allegations against him in this regard.

Regarding the statement made to the media about
post Godhra riots by citing Newton’s law that every action
has equal and opposite reaction, Shri Narendra Modi had
stated that the Times of India had published a news item
D on 03.03.2002, purportedly as though he had given an
interview to them. According to Shri Modi, the truth is that
nobody had met him in this regard. He had further stated
that the falsehood of his so-called justification “Action-
Reaction Theory” is evident from this fact. According to
E Shri Modi, the State Govt. issued a denial with regard to
his not having given any interview and the same was
belatedly published in a remote corner of the newspaper.
He had also stated that it had been his considered opinion
that violence can not be replied by violence and he had
appealed for peace. As per Shri Modi’s version, he had not
F and would never justify any action or reaction by a mob
against innocents. He had denied all allegations in this
regard.

The recommendations made in Chart ‘B’ by the Ld.
G Amicus Curiae vis-a-vis comments of SIT are given below:-

---------------------------------------------------------------------------

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 325

Page: 441 A
Chart-’B’

B

C

D

E

F

G

H
326 SUPREME COURT REPORTS [2022] 6 S.C.R.

A

B

C

D

E

F

G

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 327

A

B

C

D

E

F
SPECIFIC RECOMMENDATIONS FOR SIT:-
(i) Shri M. K. Tandon and Shri P.B. Gondia be prosecuted
u/s 304A IPC
(ii) The SIT may examine the role of the Investigating
Agency in the Bilkisbano rape case and make G
recommendations to this Hon’ble Court, whether it reveals
commission of any criminal offence or misconduct.
(iii) The SIT may be directed to look into the role of the
Crime Branch officers, namely DCP Vanzara and ACP
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328 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Chudasama as to their role in the investigation of Gulberg
Society and Naroda Patiya cases.
(iv) The SIT may examine the role of the prosecuting agency
in Best Bakery case and recommend suitable action against
those who are responsible.
B (v) SIT may look into the role of police officials in the
Gulberg Society and Naroda Patiya cases (apart from those
who are already facing charges).
SPECIFIC RECOMMENDATIONS IN RELATION TO
GOVERNMENT OF GUJARAT.
C
(i) Departmental action, as suggested by the SIT, be taken
against K. Kumaraswamy, the then Jt. CP Baroda City and
Ramjibhai Pargi, former ACP.
(ii) As recommended by the SIT, departmental action be taken
D against Shri Tarun Barot, Inspector and Shri G.S. Singhal, ACP
Crime Branch for faulty investigation of the riots cases.
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Page: 444
The aforesaid recommendations of the Ld. Amicus Curiae
E would show that he concurred with the findings of SIT with regard
to Allegations No.lX & XXIII. Further, as regards Allegation No.
XV, Ld. Amicus Curiae has opined that the issue may not survive
because of the intervention of the Hon’ble Supreme Court,
whereby Public Prosecutors have been appointed in an
F independent manner.
The recommendations made by Ld Amicus Curiae in
Chart - ‘B’ have been examined and the comments on the
same were as follows:-
SPECIFIC RECOMMENDATIONS FOR SIT:
G
Observation made by Ld. Amicus Curiae:
Shri M.K. Tondon and Shri P.B. Gondia be prosecuted u/s
304A IPC.
Result of further investigation:
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 329

Ld. Amicus Curiae has recommended that Shri A
M.K.Tandon (the then Joint Commissioner of Police,
Ahmedabad city) and Shri P.B Gondia (the then Deputy
Commissioner of Police, Ahmadabad City) should be
prosecuted u/s 304-A IPC. Role and evidence available on
record [after further investigation of three cases
B
(Meghaninagar Police Station I.CR No.67/2002, Naroda
Police Station I.CR Nos. 100/2002 & 98/2002)] against Shri
Tandon and Shri Gondia was analysed and it was found that
the same is not adequate to launch prosecution of the above
two officers. For understanding the issue in hand, details
of this cases/evidence are given below: C
Brief facts :
(I) Meghaninagar P. Stn. I. CR No.67/2002 (Gulberg
Society):
A call for Gujarat Bandh on 28.02.2002 was given by VHP, D
which was supported by ruling-BJP, to protest against the killing
of Karsevaks at Godhra Railway Station on 27.02.2002. An
unlawful mob of around 20,000 Hindus, armed with deadly
weapons attacked shops and houses of Muslims residing in Gulberg
Society on 28.02.2002 morning /afternoon resulting in death of 39
persons and injuries to 15 others. 31 Muslim individuals went E
missing, Shri Ahesan Jaffri, ex-MP fired in self defence from his
private licensed weapon resulting in injuries to 15 persons in the
mob, out of which one died later. Police fired 124 rounds to disperse
the mob resulting in death of 4 rioters. On the complaint of Police
Inspector of Meghaninagar Police Station Shri K. G. Erda, the F
above case was registered under different sections of IPC relating
to unlawful assembly, murder, Bombay Police Act and Arms Act
against 11 named individuals and unknown others. After
investigation, 11 charge sheets were filed against 71 individuals
while 2 persons were arraigned as accused by the trial Court u/s
319 Cr.PC. Recording of prosecution evidence in that Trial Court G
is over and arguments are continuing.
(II) Naroda Police Station I. CR No. 98/2002 (Naroda Gaam
Case) :

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330 SUPREME COURT REPORTS [2022] 6 S.C.R.

A During the above-mentioned Bandh on 28.02.2002, an
unlawful mob of 5,000 to 7,000 rioters gathered around Naroda
Gaam area around 12:00 hours and attacked the houses, shops
and vehicles with the inflammable materials killing 8 Muslim
individuals; 3 victims went missing. On the complaint of ASI Vala
of Naroda Police Station, a case was registered under different
B
sections of IPC and Bombay Police Act. Though only 5 persons
were named in the FIR, 86 persons were charge-sheeted in I0
different charge-sheets filed over the years. Presently the trial is
going-on.
(IIl) Naroda Police Station I. CR No. 100/2002 (Naroda
C Patiya):
In yet another major incident on the above mentioned Bandh
day, an unlawful mob of 15,000 to 17,000 attacked the houses of
Muslims situated in Hussein-ni Chali, Naroda Patiya and nearby
areas between 11:00 hours and 20:00 hours killing 58 Muslim
D individuals. 15 rounds were fired by the police to control the mob.
Later, it was found that total 85 persons were killed including 2 in
police firing. On the complaint of PSI V. K. Solanki of Naroda
Police station, the above case was registered under different
sections of IPC and Bombay
E ---------------------------------------------------------------------------
Page: 445
Police Act against 5 named individuals and unknown others. 70
persons were charge-sheeted in 8 charge-sheets. The case is
F presently under trail.
Facts/Sequence of events establish during investigation:
Enquiry by Shri A. K. Malhotra, Member, SIT / earlier
investigation / further investigation has established the following:
(A) Shri M. K. Tandon was Joint Commissioner of Police, Sector-
G Il, Ahmedabad City during the relevant period. Sector-Il comprises
3 Zones (Zone-IV, V & VI) and covered 15 police stations
including Meghaninagar and Naroda. Certain police stations in
his jurisdiction namely, Dariapur, Gomtipur; Rakhial and Bapunagar
were traditionally communally sensitive while Meghaninagar and
H Naroda did not have history of serious communal riots though
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 331

these also had a few Muslim pockets. Each Zone is headed by a A
Deputy Commissioner of Police (DCP). Shri P. B. Gondia was
posted as DCP Zone-IV, who had jurisdiction over Meghaninagar,
Naroda Dariapur, Shahibaug and Sardarnagar Police stations.
(B) Though Shri Tandon had received information regarding
Godhra train incident as well as the proposed VHP Bandh on B
28.02.2002 on the morning of 27.02.2002 itself, he did not held
any formal meeting with DCsP/SHOs or chalked out any plan to
handle the law and order situation on the coming day. In fact, no
major preventive police action was taken. Similarly, no meeting of
SHOs/chalking out of law and order plan was done by Shri P.
B.Gondia, DCP. C

(C) Shri Tandon was allotted 1 Coy of State Reserve Police (SRP)
for the Bandh day, which was distributed among 3 DCsP (1 Platoon
each). During his movements on 28.02.2002. Shri Tandon was
having a Striking Force comprising 2 Police Sub-Inspectors and a
few armed men in 2 vehicles. D

(D) In the morning of 28.02.2002, Shri M. K. Tandon left for
Dariapur P.S. as it was considered communally very sensitive.
On the way around 1035 hours, he received a wireless message
from Assistant Commissioner of Police, ‘G’ division requesting
Police Control Room to send more vehicles to Naroda Patiya E
area. In view of this message, he changed his route towards Naroda
Patiya. En route, he inquired about location of Sr. PI of
Meghaninagar P.S. and after having learnt that he had gone to
Gulberg Society due to some problem there, he proceeded towards
the same and reached there around 1130 hours. F
In the meantime, Shri P. B. Gondia, DCP received
information regarding trouble at Naroda Patiya/ Naroda Gaam
and reached Naroda Patiya at about 1100 hours. Inspector Shri
Mysorewala of Naroda P.S, and ACP Shri M. T. Rana were already
there to deal with mob which had gathered in large numbers. G
(E) Shri M K. Tandon found a mob of around 1,000 Hindu rioters
around Gulberg Society and ordered for bursting of tear gas shells
and lathi charge by his Striking Force. Official records suggest
that six tear gas shells were fired by the Striking Force attached
to Shri Tandon at that time. As a result, the mob got dispersed in
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332 SUPREME COURT REPORTS [2022] 6 S.C.R.

A the lanes/by-lanes near Gulberg Society. It is believed that Shri
Tandon also met late Shri Ahesan Jafri, ex-MP and certain other
residents of Gulberg Society who were assured of strengthening
the police presence there. Though witnesses claim that Late
Ahesan Jafri had met the Commissioner, investigation has revealed
that Shri P.C. Pande, the then CP, Ahmedabad City had not visited
B
the Gulberg Society at that time. So most likely, Late Jafri had
met Shri M. K. Tandon, the then Jt. CP, Sector-Il. However, Shri
Tandon denies this fact. Around 1150 hours Shri M. K. Tandon
left for Naroda Patiya.
(F) On reaching Naroda Patiya area around 1220 hours Shri
C Tandon found the situation to be very explosive and requested
Commissioner of Police for imposition of curfew in Naroda Patiya.
The Commissioner of Police, Ahmedabad City agreed with the
request made by Shri Tandon and curfew was imposed at 1230
hrs.
D (G) Significantly, Shri P. B. Gondia received a massage at 1235
hrs from Sr. PI, Meghaninagar about the grave situation at Gulberg
Society where a mob of around 5,000 had reportedly gathered.
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E Page: 446
(H) Around 1240 hours, Shri M. K. Tandon left Naroda Patiya
for Dariapur Police Station area ostensibly on the ground that it
was communally hyper sensitive. Incidentally, Shri Tandon did
not take any concrete action, at Naroda Patiya except requesting
F for imposition of curfew. As per call detail records he was in
Bapunagar-Rakhial area between 1241 hrs and 1325 hrs. Further,
he remained in Dariapur and Kalupur Police Stations area between
1351 hours and 1542 hours.
(I) At about 1220 hrs and 1230 hrs, Sr. PI Erda of Meghaninagar
P.S. sent alarming messages to Police Control Room about the
G
critical situation at Gulberg Society requesting for reinforcements.
(J) Around 1405 hrs, Shri Tandon sent a message to Control Room
to send additional force for shifting Late Ahesan Jafri and others
who had been surrounded by a mob in the Gulberg Society. Shri
Tandon did not bother to inquire about the latest position till 1545
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 333

hrs when he asked Control Room to check-up as to whether there A
was any incident relating to loss of life in Gulberg Society. By that
time, the Society had been set ablaze and lot of lives including that
of Late Ahesan Jafri had been lost.
(K) Shri. P. B. Gondia sent Shri V. S. Gohil, IInd Police Inspector,
Naroda P.S. to Naroda Gaam around 1300 hrs due to critical B
situation there. He also ordered police firing in Naroda Patiya
area, which resulted in death of 1 Hindu and 1 Muslim miscreant.
As per police records, during this period, 48 rounds (22 rounds of
9 mm + 26 rounds of 303) as well as 95 tear gas shells were fired
by the Striking Force of Shri P.B. Gondia. He left Naroda Patiya
at 14:20 hrs ostensibly to go to Pithadiya Bambha (Dariapur P.S.) C
in view of some trouble there. (However, in a signed statement
made earlier in point of time to Shri A.K Malhotra, Member, SIT
during inquiry, he has claimed that he had left for Hotel Moti Manor
owned by a Muslim and Rosary School in Shahibaug area, which
were being set on fire). D
(L) On way to Pithadiya Bambha, Shri P. B. Gondia received
instructions from CP Ahmedabad City at 1516 hrs to go to Gulberg
Society and he reached there sometime around 1600 hrs. Shri
M.K. Tandon arrived at Gulberg Society thereafter and arranged
for prisoner vans, ambulances etc. for safe shifting of 150 survivors E
of Gulberg Society to Shahibaug police station.
(M) Late after the departure of Shri M. K. Tandon, Shri P. B.
Gondia, ACP Shri M. T. Rana and PI Shri K. K. Mysorevala
from Naroda Patiya area, a major incident of rioting took place
between 1800 hrs and 1830 hrs there in which 85 persons were F
killed and 13 persons went missing. Five VHP activists were named
as accused in the FIR.
(N) Shri M. K. Tandon was in touch with certain accused persons
of Naroda Patiyal/Naroda Gaam cases. He had received 2
telephone calls on 01.03.2002 at 1137 hrs for 250 seconds and G
1256 hrs for 161 seconds from accused in Naroda Patiya case
Jaydeep Patel of VHP and 2 calls on 01.03.2002 at 1458 hrs for
32 seconds and 1904 hrs for 61 seconds from accused Dr.
Mayaben Kolnani.

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334 SUPREME COURT REPORTS [2022] 6 S.C.R.

A (O) Shri P. B. Gondia was also in touch with some accused persons
of Naroda Patiya/Naroda Gaam cases. He had received 3 calls
on his Mobile phone from Dr. Mayaben Kolnani on 28.02.2002,
01.03.2002 and 02.03.2002 at 1039 hrs, 1339 hrs and 1249 hrs
respectively. He had also received 3 calls on 28.02.2002 at 1140
hrs, 1152 hrs and 1220 hrs, 2 calls on 01.03.2002 at 1004 hrs and
B
1135 hrs and 2 calls on 02.03.2002 at 1156 hrs and 1848 hrs from
accused Shri Jaydeep Patel.
Role of Shri M.K. Tondon:
During further investigation efforts were made to ascertain
C whether Shri M.K. Tandon could be part of the conspiracy of
these offences. However, no evidence has come on record to
establish that he was a party to criminal conspiracy hatched by
the rioters. Normally conspiracy is hatched secretly and only
circumstantial evidence is available to establish the same. In case
of Shri Tandon, certain actions on his part suggest his bonafide
D intentions to control the riots. Initially he visited Gulberg society
and lobbed tear gas shells and dispersed the mob. Subsequently
he proceeded to Naroda Patiya and on his advice curfew was
imposed in Naroda
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E
Page: 447
Patiya area by the Commissioner of Police, Further, from Naroda
Patiya area, he went to Dariapur which was communally very
sensitive.
F As far as telephonic contact with accused persons namely,
Dr. Mayaben Kodnani and Shri Jaydeep Patel is concerned, it
has come to light that Dr. Kodnani was MLA from Naroda
constituency and Shri Jaydeep Patel was Joint General Secretary,
VHP, Ahmedabad Unit. These individuals were interrogated but
they expressed inability to recollect the conversations and claimed
G
that the same must be about the prevailing law and order situation.
As regards the telephone calls made a day after the offence,
from certain local leaders who were later prosecuted in the offence
by itself does not make an individual a part of the conspiracy
unless the contents of the conversation are known. In view of
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 335

this. it would not be appropriate to conclude just on the basis of A
telephone calls that he was part of the conspiracy.
Investigation has revealed that Shri Tandon got the mob
dispersed outside Gulberg Society around 1130 hrs. However, he
did not take any step to strengthen the hands of Shri K.G. Erda,
Sr. Pl by providing him some additional force as requested by the B
latter despite the fact that he had assured late Ahesan Jafri and
others.
Investigation has revealed that 1 platoon of SRP was allotted
to DCP Zone-IV and that had reported at Naroda Patiya at about
1245 hrs and was deployed there. As cremation of 12 Karsevaks C
who had died on previous day in Godhra train incident was also to
take place in Hatkeshwar cremation ground, which was also in
the jurisdiction of Shri M.K. Tandon, he had some justification to
leave Naroda Patiya for communally hyper sensitive areas in his
jurisdiction. Furthermore, DCP Shri P. B. Gondia, along with ACP
M T Rana, were already there at Naroda Patiya for handling the D
situation.
Investigation revealed that Dariapur was traditionally
communally hyper sensitive. On the day between 1215 hrs
and 2100 hrs, one person had been killed in police firing
and one Masjid was heady damaged, besides setting of E
Lunsawad police post on fire by miscreants. However,
records of that period do not reveal any action taken by
Shri M. K. Tandon at any of the locations in Dariapur.
Further, there is no mention of any firing done at any of the
places under his orders. The objective assessment of the F
situation reveals that Shri Tandon did not appreciate the
circumstances professionally and acted in a negligent
manner by not taking any appropriate action about the grave
situation at Gulberg Society/Naroda Patiya area. It would
not be out if place to mention here that Shri M.K. Tandon
was very well aware about the situation at Gulberg Society G
in as much as he had sent a message to the Police Control
Room at 1405 hrs on 28.02.2002, that late Ahesan Jafri
and others had been surrounded by a mob and were required
to be shifted immediately. Despite the fact that he was well
aware of the inflammatory situation at Gulberg society, yet H
336 SUPREME COURT REPORTS [2022] 6 S.C.R.

A he chose not to go there. However, it is pitiable to note
that he sent a message at 1545 hrs asking there was any
loss of life at Gulberg society and if so, a detailed report
should be given to him. As Joint Commissioner of Police,
he was expected to monitor and keep a track of
developments throughout his jurisdiction especially when
B
he had left the locations at Gulberg Society and Naroda
Patiya which were by no means peaceful at that time. He
left the locations at the mercy of concerned PI (in the case
of Gulberg Society) and DCP (in the case of Naroda Patiya)
and did not bother to inquire/take corrective actions though,
C he had come to know of the gravity of the situations.
Role of Shri P. B. Gondia
Investigation revealed that Shri P. B. Gondia had received
3 calls on his Mobile phone from Dr. Mayabern Kodnani on
28.02.2002, 01.03.2002 and 02.03.2002 at 1039 hrs, 1339 hrs and
D 1249 hrs respectively. He had also received 3 calls on 28.02.2002
at 1140 hrs, 11.52 hrs and 1220 hrs, 2 cal!s on 01.03.2002 at 1004
hrs and 1135 hrs and 2 calls on 02.03.2002 at 1156 hirs and 1848
hrs, from accused Shri Jaydeep Patel. Dr. Mayaben Kodnani,
Shri Jaydeep Patel and Shri P. B. Gondia have taken the plea that
E they were unable to recall the exact contents of these phone calls
and claimed that these must be in connection with law and order
situation. Notably, all these calls were incoming as far as Shri
P. B. Gondia is concerned. As Dr. Kodnani was the local MLA
and Shri Jaydeep Patel, a local leader, the reason given by them is
probable. Shri Gondia claimed that 7 rioters had been killed as a
F result of police firing ordered by him. Police records show that
110 rounds of bullets and 183 teargas shells were fired by the
police personnel under him on 28.02.2002 though it did not show
any firing resorted to personally. Furthermore, from Naroda Patiya
he went towards Pithadiya Bambha from where some incidents
G of rioting
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Page: 448
had been reported. In any case, he was instrumental in controlling
a riot situation at Moti Manor Hotel and Rosary School on the
H
way.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 337

Investigation has further revealed that he had left Naroda A
Patiya at 1420 hrs despite the fact that a huge of mob of Hindu
and Muslim rioters had gathered there while the curfew was in
force. His leaving the location for Pithaliya Bambha was totally
unjustified, especially when there was no information of any
situation being graver there than at Naroda Patiya. In case, Shri
B
Gondia realized that he was in a position to leave the location,
then he should have gone to Gulberg Society and not to Pithaliya
Bambha. Shri Tandon has stated that on receipt of a message
from Shri K.G. Erda at 1445 hrs that the Gulberg society had
been surrounded by a mob and was about the set fire to the same,
he had directed Shri PB. Gondia to reach Gulberg society C
immediately. Though this fact has been mentioned by Shri M K.
Tandon in his affidavit filed before the Nanavati Commission in
July, 2002, yet he has not been able to explain as to how this
direction was given to Shri Gondia as there is no Control Room
message or mobile phone call to Shri Gondia at this point of time.
D
However, Shri Gondia has denied having received any such
instructions from Shri Tandon.
As indicated earlier, sufficient evidence has not come on
record regarding police involvement of these two police officers
in the conspiracy/abetment of the offences. However, they
demonstrated profound lack of judgment that seriously undermined E
their credibility and damaged their effectiveness in dealing with
the situations. All the three major incidents took place in area
under their control and they left the locations for handling by the
junior officers. They did not take any preventive action on
27.02.2002, while any police officer worth the name could imagine F
the seriousness of the situation.
Ld. Amicus Curiae has recommended prosecution of
aforesaid two officers u/s 304A IPC. In view of this
recommendation, available evidence was analysed to assess
whether the inaction on the part of these two officers, was of the G
nature of Criminal negligence or professional misconduct.
The basic requirements for prosecution under the above
section are that the acts (including omission) must be rash or
negligent. Here the issue is whether the acts of Shri M.K.Tandon
and Shri P.B. Gondia would amount to criminal negligence justifying H
338 SUPREME COURT REPORTS [2022] 6 S.C.R.

A their prosecution. Their actions need to be seen and analysed in
the proper perspective and situation prevalent on that day. The
following actions would analyse the role played by Shri M.K.
Tandon.
a. In the morning of 28.02.2002 he had left for Dariyapur Police
B Station (communally hyper-sensitive). On the way at 1035 hrs, he
had heard a wireless message of ACP ‘G’ Division requesting
control to send more vehicles to Naroda Patiya. In view of this
message, he proceeded towards Naroda Patiya. En-route he asked
location of Senior Police Inspector of Meghaninagar Police Station
and after having learnt that he was at Gulberg Society, he proceeded
C there and reached Gulberg Society at about 1130 hrs. At that
time, a mob of around 1000 Hindu rioters had gathered there. Shri
Tandon had ordered bursting of tear gas shells and lathi charge
through his striking force. As a result of this action, the mob was
dispersed in the lanes and by-lanes near Gulberg Society.
D b. Around 1200 hrs. Shri Tandon left for Naroda Patiya. At 1220
hrs he had made a phone call to Commissioner of Police and
requested for imposition of curfew in Naroda Patiya. Curfew was
imposed in Naroda Patiya area at 1230 hrs.
c. He had informed Commissioner of Police, Ahmedabad City
E regarding the situation at Naroda Pariya through a phone call at
1237 hrs. He also informed CP regarding the funeral procession
of Kar-sevaks. The Commissioner of Police instructed him to go
to Dariapur, as the Dariapur Police Station is communally
hypersensitive. As ACP of Dariapur was on leave and presence
F of senior officer was required there, he had left for Dariapur.
Therefore, his leaving the spot for a known communally hyper-
sensitive place does not amount to criminal negligence though it
could be an error of judgment/ poor appreciation of the situation.
d. During the investigation of offence at Naroda Patiya, it has
G been established that the incident took place after 1800 hrs. When
Shri Tandon left Naroda Patiya around 1240 hrs, then Senior Police
Inspector of Naroda Police Station along with his force, ACO‘G’
Division along with his force, DCP Zone IV and his striking force
and one platoon of State Reserve Police were
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H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 339

Page: 449 A
present there. Therefore, it was not possible to envisage that such
an incident might take place at Naroda Patiya.
e. Shri M.K Tandon has stated that first wireless message
regarding the situation at Gulberg, Society was received at 1414
hrs on his wireless handset. He has further stated that he had not B
received the messages passed by Senior Police Inspector of
Megharinagar P.S. at 1225 hrs and 1238 hrs as the situation was
very noisy in Naroda Patiya area and he was using public address
system of his vehicle for declaration of curfew and ordering the
mob to get dispersed. C
f. Regarding the situation at Gulberg Society, Shri M.K. Tandon
has stated that he was informed by an unknown Muslim individual
that late Ahesan Jafri, Ex-MP and other Muslims of Gulberg Society
need to be shifted immediately. However, his enquiries with Control
Room revealed that additional force of two DySsP, one inspector D
and one section of CISF had been sent to Gulberg Society, as per
orders of Commissioner of Police.
g. Shri M.K. Tandon has claimed that he had called Commissioner
of Police on his mobile phone at 1425 hrs and discussed the
situation. As per his statement, taking the communal sensitivity of E
Dariapur in consideration, leaving Dariapur without any senior
police officer could have lead to drastic consequences as ACP
was on leave and DCP was busy in handling the law & order
situation elsewhere.
Following actions by Shri P.B.Gondia are relevant to F
decide as to whether he was liable for criminal negligence:-
a. As per call details of mobile phone of Shri P.B.Gondia for
28.02.2002, he was in Dariapur Police Station area (which is
communally hypersensitive) since 0830 hrs. Further, on receipt of
an information regarding trouble at Naroda Patiya/ Narode Gaam,
G
he had reached there around 1100 hrs. He was allotted one platoon
of State Reserve Police, which he had deployed at Naroda Patiya
and Naroda Gaam. Curfew was imposed at Naroda Patiya at
1230 hrs.

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340 SUPREME COURT REPORTS [2022] 6 S.C.R.

A b. He had ordered police firing at Naroda Patiya which had resulted
in death of one Hindu and one Muslim rioter. Shri P.B. Gondia
had left Naroda Patiya at 1420 hrs on receiving message regarding
trouble at Pitadiya Bamba in Dariapur. Pitadiya Bamba had a
history of serious communal violence in the past.
B c. At 1516 hrs, he had received instructions from Commissioner
of Police, Ahmedabad City to go to Gulberg Society where he
reached around 1600 hrs and took measures to disperse the mob
and rescue the survivors.
d. During the investigation of the case, it has been established
C that the incident at Naroda Patiya, in which major loss of lives
took place occurred after 1800 hrs, i.e., approximately four hours
after Shri Gondia had left the spot. In any case, the killings had
taken place at a corner location in the lane which was away from
the main road where police personnel were stationed and handling
the mobs belonging to the two communities. In view of this, there
D does not appear to be any direct nexus of these killings with Shri
P.B. Gondia, who had left the spot at about 1420 hrs.
e. On 28.02.2002, he had ordered firing of 110 rounds of bullets
and 183 tear gas shells to disperse the rioters at different locations
which lead to killing of 7 rioters (including 6 Hindus).
E
Section 304A means an act which is the immediate cause
of death and not an act or omission which can be said to be a
remote cause of death. It is necessary to show an immediate
nexus between the wrongful act of an accused and the injuries
received by another. In order to constitute the offence, the death
F should have been the direct result of a rash and negligent act that
must be proximate cause without intervention of any third factor.
Furthermore, in case of criminal negligence, it must be gross and
not which is merely an error of judgment or arises because of
defect of intelligence.
G Therefore, considering all the circumstances,
evidence on record and the defence available with the
suspect police officers namely Shri M.K.Tandon and Shri
P.S. Gondia, it may not be viable to prosecute them for the
offence u/s 304-A IPC as proposed by Ld. Amicus Curiae.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 341

It is worth mentioning here that inspite of best efforts, no A
additional evidence (other than already
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Page: 450
available) which could help in fixing, criminal liability u/s B
304A IPC of these two individuals could be brought on
record during further investigation However, the conduct
of Shri M. K. Tandon, the then Joint CP. Ahmedabad City
(since retired) and Shri P. B. Gondia, the then DCP,
Ahmedabad City was unprofessional and unbecoming of
senior police officers. C

Observation made by Ld. Amicus Curiae:
The SIT may examine the role of the Investigating Agency in
the Bilkis Bano rape case and make recommendations to this
Hon’ble Court, whether it reveals commission of any criminal D
offence or misconduct.

Result of Further Investigation:
The Bilkis Bano rape case has investigated by the CBl
under the orders of Hon’ble Supreme Court of India. The E
case has ended it conviction of 12 accused persons and
acquittal of 8 accused persons. The appeals against
conviction are now pending in the High Court. CBI had
already recommended Regular Departmental Action for
major penalty against five police officers for the lapses on F
their part.
Observation made by Ld. Amicus Curiae:
The SIT may be directed to look into the role of the Crime
Branch officers, namely DCP Vanzara and ACP Chudasama
as to their role in the investigation of Gulberg Society and G
Naroda Patiya cases.
Result of Further Investigation:
Departmental action has been recommended against
Shri S.S. Chudasma, the then ACP, Crime Branch (since
H
342 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Retd.). The role played by Shri D.G. Vanzara, the then DCP,
Crime Branch (now under suspension), who is in judicial
custody in “Sohrabuddin fake encounter case” since 2007
has been re-examined with a view to ascertain the lapses,
on his part. However, no fresh material has come on record
to establish the same.
B
Observation made by Ld. Amicus Curiae:
The SIT may examine the role of the prosecuting agency in
Best Bakery case and recommend suitable action against
those who are responsible.
C Result of Further Investigation:
The Best Bakery case was investigated by the Gujarat
Police and the same ended in acquittal of all the accused
persons in a trial conducted at Baroda in Gujarat. However,
subsequently the case was remanded by the Hon’ble
D Supreme Court of India for a retrial under the jurisdiction
of Bombay High Court and the same ended in the conviction
of 9 accused persons and the acquittal of 8 accused persons.
Observation made by bd. Amicus Curiae:
SIT may look into the role of police officials in the Gulberg
E
Society and Naroda Patiya cases (apart from those who are
already facing charges).
Result of Further Investigation:
Govt of Gujarat would be requested to initiate appropriate
F action against the concerned officials for various administrative
lapses on their part.
SPECIFIC RECOMMENDATIONS IN RELATION TO
GOVT. OF GUJARAT:
Observations made by Ld. Amicus Curiae:
G
Departmental action, as suggested by the SIT, be taken against
K. Kumaraswamy, the then Jt.CP, Baroda City and Ramjibhai
Pargi, former ACP.
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H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 343

Page: 451 A
As recommended by the SIT, departmental action be taken
against Shri Tarun Barot, Inspector and Shri G.L. Singhal,
ACP, Crime Branch for faulty investigation of the riots cases.
Result of Further Investigation:
B
As discussed above the recommendations made by
the Ld. Amicus Curiae, have been agreed upon and further
necessary action in the matter is being recommended to
the Govt. of Gujarat.
The recommendations made in Chart ‘C’ by the Ld. C
Amicus Curiae vis-a-vis comments of SIT are given below:-
Chart-‘C’

D

E

F

G

H
344 SUPREME COURT REPORTS [2022] 6 S.C.R.

A

B

C

D

E

F

G

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 345

A

B

C

D

E

It may thus be seen that the Ld. Amicus Curiae has agreed
with the fundings of SIT in respect of Allegations No. II, III, VI,
VIII, XIV, XVI, XIX, XX, XXIV, XXVII, XXVIII, XXIX, XXXI &
XXXII and has recommended to the Hon’ble Supreme Court of F
India that the recommendation of SIT may be accepted in respect
of these allegations. Further, as regards Allegations No. XIII,
XVII, XVIII & XXVI the Ld. Amicus Curiae is of the view that
the issued were not very material and, therefore, recommended
the same to be dropped. However, as regard the Allegation No. G
XXX, the Ld Amicus Curiae opined that the allegation would get
covered in the case the request for further investigation was
accepted by the Hon’ble Supreme Court of India. The Ld. Amicus
Curiae has also opined that the further investigation conducted
by the SIT u/s 173(8) Cr.PC about the involvement of Shri
H
346 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Gordhan Zadafia has revealed that there is lack of evidence to
suggest his involvement in the riots and that this findings of the
SIT appears to be acceptable.
As ordered by the Hon’ble Supreme Court of India, the
matter was listed for hearing on 05.05.2011, when the following
B order was passed:-
“Pursuant to our order dated 15th March, 2011, the Chairman,
Special Investigation Team (SIT) has filed report on the
further investigations carried out by his team along with his
remarks thereon. Statements ofwitnesses as also, the
C documents have been placed on record, in separate volumes.
Let a copy of all these documents along with the report of the
Chairman be supplied to Mrs. Raju Ramchandran, the
Learned Amicus Curiae.
The learned Amicus Curie shall examine the report, analyse
D and have his own independent assessment of the statements
of the witnesses recorded by the SIT and submit his comments
thereon. It will be open to the learned Amicus Curiae to interact
with any of the witnesses, who have been examined by the
SIT, including the police officers. as he may deem fit.

E If the learned Amicus Curie forms an opinion that on the basis
of the material on record, any offence is made out against
any person, he shall mention the same in his report.
List on 28th July, 2011 at 3:00 p.m.”
Pursuant to the aforesaid order passed by the Hon’ble
F Supreme court of India the Ld. Amicus Curie submitted
his report dated 25.07.2011. In his report, Ld. Amicus
Curiae agreed with the findings of the SIT on the following
issues and opined that the same are acceptable:-
I. That though he had observed in his note dated
G 20.01 .2011 that late Haren Pandya, the then MoS for
Revenue could have been present in the meeting on
27.02.2002, yet considering the material gathered by
the SIT and that further investigation report of the SIT,
he agrees with the SIT that late Haren Pandya could
not have been present in the meeting on 27.02.2002
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 347

and therefore, his (late Haren Pandya) statement A
regarding the alleged statement made by Shri Modi in
the aforesaid meeting may be disregarded.
II. That he would also agree with the findings of SIT that
the statement made by Shri R.B. Sréekumar, the then
Addl. DG (Int.) to Shri K. Chakravarthi, the then DGP B
would be
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Page: 454
hearsay evidence not saved by res gestae and therefore, C
would be inadmissible in evidence.
III That as far as SIT’s conclusion with regard to the steps
taken by Shri Narendra Modi to control the riots in
Ahmedabad City is concerned, the same may be
accepted. D
IV. That as far as the observations of the Chairman, SIT
on the handing over of the bodies of the Godhra victims
to Shri Jaydeep Patel are concerned, the same may be
accepted.
V. That as far as the observations of the SIT with regard E
to the Chief Minister’s statement on television on
01.03.2002 are concerned the same may be accepted.
VI. That as far as SIT’s observations with regard to the
alleged inaction of Shri P.C. Pande, the then
Commissioner of Police, Ahmedabad City are F
concerned, no comment is necessary at this stage as
an application u/s 319 Cr.PC, has been filed in respect
of Shri P.C. Pande also, and the sane may be dealt with
by the concerned Court in accordance with law, in the
same manner as suggested in respect of Shri M.K.
Tandon and Shri P.B Gondia. G

Shri Raju Ramchandran, Amicus Curiae has come to
the conclusion that at this prima facie stage offences inter-
alia u/s 153 A(1)(a) & (b), 153B(1) (c),166 and 505(2) IPC
are made out against Shri Narendra Modi. He has further
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348 SUPREME COURT REPORTS [2022] 6 S.C.R.

A stated that 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
offences. These findings are based on the following
grounds :-
B a. That Shri Sanjiv Bhatt has brought his former driver
Shri Tarachand Yadav and had submitted his affidavit
sworn on 17.06.2011, which supports Shri Bhatt’s
version that he had gone to the residence of the Chief
Minister on 27.02.2002.
C b. That Shri Sanjiv Bhatt submitted an affidavit of Shri K.D.
Panth, Constable affirmed on 17.6.2011 supporting the
version of Shri Bhatt about going to Chief Minister’s
residence on the night of 27.02.2002.
c. That Shri Rahul Sharma, DIG submitted an analysis of
D the call records of senior police officers, which according
to Shri Sharma corroborates the statement of Shri
Bhatt.
d. That though Shri Sanjiv Bhatt has been contending that
he would speak only when under a legal obligation to
E do so, his conduct after making a statement u/s 161
Cr.PC has not been that of a detached police officer,
who is content with giving his version.
e . That it does not appear very likely that a serving police
officer would make such a serious allegation against
F Shri Narendra Modi, Chief Minister without some basis.
f. That 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 and in the
absence of the minutes of the meeting, there is again
no documentary evidence is available, as to the
G
participants in the meeting and what transpired at the
said meeting. Therefore, it is the word of Shri Sanjiv
Bhatt against the word of other officers senior to him.
g. That it is difficult to accept that Shri Bhatt’s statement
is motivated because he has an axe to grind with the
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 349

State Govt. over issues concerning his career and it A
may not be proper to disbelieve Shri Sanjiv Bhatt at
this stage only because the other officers have not
supported his statement.
h. That the delay in making the statement can not be the
sole ground to disbelieve the statement at this stage B
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.
i. That Shri G.C. Raiger, Addl. DG (Int) was on leave on C
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Page: 455
27.02.2002 and DGP Shri K Chakravarthi does not state
that he had gathered intelligence from the office of Shri D
Raiger. Further, Shri P.C. Upadhay, the then DCI
(Political & Communal) was on leave on 27.02.2002
and Shri Bhatt was looking after his work. Also Shri
Raiger has stated that Shri Bhatt had accompanied him
in the past to meetings called by the Chief Minister,
though he used to wait out side with files or information E
and therefore, it is quite possible that Shri Bhatt was
directed to attend the meeting on 27.02.2002 at the
residence of Chief Minister.
j. That the phone calls records do not contradict the
statement given by Shri Sanjiv Bhatt to the SIT and F
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 Addl. DG (Int.) Shri Raiger was not
available and Shri O.P. Mathur, the IGP (Security &
G
Admn.) who was next in seniority was not called for the
meeting and that this aspect was of little significance in
the context of an emergency meeting called at short
notice in response to an escalating situation.

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350 SUPREME COURT REPORTS [2022] 6 S.C.R.

A k. That the discrepancies about the exact language used
or the time of meeting at the Chief Minister’s residence
at Gandhinagar on 28.02.2002, are inevitable
considering the lapse of time.
As regard the assessment of the role played by Shri M.K.
B Tandon, the then Jt. CP, Sector-II, Ahmedabad City and Shri.
P.B.Gondia, the then DCP, Zone-IV, Ahmedabad City, the Ld.
Amicus Curiae has recommended that it would be appropriate
for the Hon’ble Supreme Court of India to direct the trial Court
to consider an application u/s 319 Cr.PC filed by the victims in
Gulberg Society Case on the evidence brought before it and also
C consider the further investigation report submitted by Shri
Himanshu Shukla, DCP to the Hon’ble Supreme Court of India
on 26.11.2010 and the statements recorded by him and to pass
appropriate orders in accordance with law. The Ld. Amicus Curiae
has also submitted to the Hon’ble Supreme Court to consider
D whether an offence u/s 304A IPC is made out. The Ld. Amicus
Curiae has finally come to the conclusion that since the SIT has
conducted a statutory investigation u/s 173 (8) Cr.PC, the report
is required to be filed in the Court and it is for the competent
Court to pass necessary orders after hearing the concerned
parties. However, the Hon’ble Supreme Court has refrained from
E passing any order in this regard except that Chairman, SIT has
been directed to forward a Final Report along with entire material
collected by it to the Court, which had taken cognisance of
Cr.No.67/2002 u/s 173(2) Cr.PC.
Shri Raju Ramachandran, the Ld. Amicus Curiae has agreed
F with the findings of the SIT on all the major issues. Whereas the
complainant has made an allegation that Shri Narendra Modi, Chief
Minister sponsored the riots, the Ld. Amicus Curiae has come
to the conclusion that sufficient steps were taken by the Chief
Minister to control the riots. The Ld. Amicus Curiae did not allege
G any conspiracy or abetment on the part of Chief Minister. He has
further agreed with the recommendations of SIT that the
statement made by Shri R. B. Sreekumar that Shri K. Chakravarthi
had informed him about the utterances made by the Chief
Minister on 27.02.2002 night would not be admissible as the same
amounted to hearsay evidence and therefore, inadmissible. He
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 351

is also of the view that the recommendations of the SIT about the A
steps taken by the Chief Minister to control the riots may be
accepted. He has also agreed with the recommendations of
chairman, SIT about handing over the dead bodies of Godhra
victims to Shri Jaydeep Patel. About the Chief Minister’s alleged
statement on television on 01.03.2002, by referring to the
B
Newton’s third Law of Motion also the Amicus has agreed the
recommendations of the SIT.
Shri Raju Ramchandran, Ld. Amicus Curiae is of the view
that a prima facie case u/s 153 A(1)(a) & (b), 153B(1)(c), 166 and
505(2) IPC is made out against Shri Narenda Modi, Chief Minister.
However, he is further of the view that it would be for the Court C
of competent jurisdiction to decide whether Shri Modi has to be
summoned for any or all of these offences or for any other offence.
This recommendations of Ld. Amicus Curiae is based on the sole
testimony of Shri Sanjiv Bhatt, the then DCI (Security), who has
claimed to have attended a meeting called by the Chief Minister D
on 27.02.2002 night at his residence. It may be mentioned here
that seven (7) other participants of the said meeting have
categorically stated that Shri Sanjiv Bhatt did not attend the said
meeting. According to the Ld. Amicus Curiae, Shri Sanjiv Bhatt
produced his driver Shri Tarachand Yadav, a dismissed constable
driver of Gujarat Police along with his affidavit dated 17.06.2011, E
who supports, Shri Bhatt’s version that he had gone to the
residence of the Chief Minister on 27.02.2002. In this connection,
Shri Sanjiv Bhatt has stated that he had gone along with Shri K.
Chakravarthi, the then DGP in the latter’s staff car to CM’s
residence F
--------------------------------------------------------------------------
Page: 456
from DGP’s office and that Shri K.D. Panth, the then AIO,
State IB followed him in his staff car driven by Shri Tarachand G
Yadav. The Ld. Amicus Curiae has wrongly projected that
Shri K.D. Panth, constable has supported the version of
Shri Sanjiv Bhatt about the latter’s visit to CM’s residence
on 27.02.2002, in as much as Shri K.D. Panth has lodged a
complaint on 17.06.2011 against Shri Sanjiv Bhatt for
H
352 SUPREME COURT REPORTS [2022] 6 S.C.R.

A wrongful confinement and also for getting an affidavit signed
from him under duress and threat and a case I CR No.149/
2011 was registered u/s 189, 193, 195, 341, 342 IPC has
been registered against Shri Sanjiv Bhatt on 22.06.2011 in
Ghatlodia P.S, Ahmedabad City. Shri Raju Ramchandran has
relied upon a copy of this affidavit which was handed over
B
to him by Shri Sanjiv Bhatt on 17.06.2011. In fact, Shri K.D.
Panth had sent a letter to Chairman, SIT in this regard on
17.06.2011 itself along with another affidavit sworn before
the Dy. Collector, Gandhinagar to the effect that he was on
leave on 27.02.2002, and that his statement made before
C the SIT in this regard was correct. It would not be out of
place to mention here that a copy of the said letter along
with the affidavit submitted to SIT by Shri K.D. Panth with
its English translation were handed over to Shri Raju
Ramchandran by Shri Y.C. Modi, Member, SIT and Shri
A.K. Malhotra, Member, SIT personally on 21.06.2011, but
D
the same has been conveniently ignored by the Ld. Amicus
Curiae. The claim of Shri Sanjiv Bhatt has been dismissed
by Shri K. Chakravarthi, the then DGP, who has denied
that Shri Bhatt accompanied him in his staff car to CM’s
residence on 27.02.2002. Significantly, log book of the
E vehicle of Shri Chakravarthi shows only PSO accompanied
him and there is no mention of Shri Sanjiv Bhatt in the same.
Further, Shri Dilip Ahir and Shri Dharampal Yadav, the then
PSOs to the DGP and Shri Panchusinh Yadav and Shri
Mangilal Kala, the then drivers attached to the DGP have
categorically denied that Shri Sanjiv Bhatt ever travelled
F
in DGP’s staff car. The observation made by the Ld. Amicus
Curiae that Shri K.D. Panth had supported the version of
Shri Sanjiv Bhatt is, therefore, incorrect. Further, keeping
in view the version of Shri K.D. Panth that he was on leave
on 27.02.2002, would falsify the statement made by Shri
G Tarachand Yadav, driver to the effect that he had followed
the DGP’s vehicle with Shri K.D. Panth, Constable.
It is significant to note that the Ld. Amicus Curiae
has admitted that

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 353

“I am conscious of the fact that though Shri Bhatt has A
been contending that he would speak only when under a
legal obligation to do so, his conduct after making his
statement u/s 161 Cr.PC has not been that of a detached
police officer, who is content with giving his version. I am
left with no doubt that he is actively “strategising” and is
B
in touch with those, who would benefit or gain mileage from
his testimony”:
The Ld. Amicus Curiae has also mentioned that Shri
Rahul Sharma, DIG submitted an analysis of the call records
of senior police officers, which according to Shri Sharma
corroborates the statement of Shri Bhatt. Shri Rahul Sharma C
never stated anything like that before the SIT Shri Rahul
Sharma has not stated that in what manner the call details
of the senior officers corroborate the statement of Shri
Sanjiv Bhatt. The Ld. Amicus Curiae has accepted the
contention of Shri Sanjiv Bhatt that as an Intelligence D
Officer, he was privy to some information and would speak
only, when he was legally bound to do so. In this connection
it may be stated that the alleged meeting called by the Chief
Minister in the night of 27.02.2002 was essentially a law
and order review meeting which was attended by the various
officials of State Administration and therefore the question E
of oath of secrecy or application of the Official Secrets Act
does not arise because it was neither a secret meeting nor
would the revelation of the contents of the said meeting
jeopardized the public interest. Shri Sanjiv Bhatt has used
the Official Secrets Act as a pretext to justify a long delay F
of nine years and the fact that an official of the intelligence
unit attended a law & order meeting, the same does not
became a secret meeting for which a privilege of secrecy is
being claimed by Shri Sanjiv Bhatt. The view of the Ld.
Amicus Curiae that it does not appear very likely that a
serving police officer would make such a serious allegation G
without some basis appears to be erroneous in as much as
Shri Sanjiv Bhatt had been all along a delinquent in his
career and had been trying to bargain with the government.
The very fact that three departmental enquiries against Shri
Sanjiv Bhatt were dropped in 2006-07 and he was given H
354 SUPREME COURT REPORTS [2022] 6 S.C.R.

A three promotions on a single day would by itself go to show
his service career progression. Again his promotion to the
rank of IGP was due for quite sometime but he did not get
the same because of other departmental enquiries as well
as court cases pending against him. This reason by itself is
sufficient to bring a motive on the part of Shri Sanjiv Bhatt
B
to make a statement against the Chief Minister. Further, it
is true that no minutes of the meeting were maintained and
there is no documentary evidence available to show as to
what transpired in the said meeting. However, the evidence
of seven senior officers can not be ignored to the effect
C that Shri Sanjiv Blatt was not present in the said meeting
and claim of Shri Sanjiv
--------------------------------------------------------------------------
Page: 457

D Bhatt about his having attended the said meeting and also
about some alleged utterances made by the Chief Minister
is not acceptable. The observation made by the Ld. Amicus
Curiae that Shri Sanjiv Bhatt can not be disbelieved because
his statements was motivated and he has an axe to grind
against the government over issues concerning his career
E and also that absurd. The further observation of Ld. Amicus
Curiae that in the absence of Shri G.C. Raiger, the then
Addl. DGP (INT) and Shri P.B. Upadhya, the then DCI
(Political & Communal) being on leave, it was quite possible
that Shri Sanjiv Bhatt was directed to attend the meeting
F on 27.02.2002 is based on conjectures and surmises. The
contention of Ld. Amicus Curiae that the phone call records
do not contradict the statement of Shri Sanjiv Bhatt is
without any basis in as much as the same do not even
support his statement. The call detail records show the
location of Shri Sanjiv Bhatt at Ahmedabad and the last call
G was received by him at 20.40 hours, which do not establish
that Shri Sanjiv Bhatt had gone to Gandhinagar to attend a
meeting around 22:30 hours.
Significantly, the claim of Shri Sanjiv Bhatt of having
attended the meetings on 27/28.02.2002 becomes false and
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 355

unacceptable as according to his call detail records he could A
not have been present in the alleged meeting that took
place at CM’s residence on 28.02.2002 at 1030 hrs. Another
claim of Shri Sanjiv Bhatt that he left the meeting of
27.02.2002 night halfway is suggestive of the fact that in
reality he did not attend the meeting. This meeting was of
B
a very short duration and it was practically impossible for a
junior officer of the level of Shri Bhatt to leave the meeting
midway.
Further, the view of Ld. Amicus Curiae that the exact
language allegedly used by the Chief Minister in the said
meeting on 27.02.2002 is not material, can not be accepted C
in as much as there are atleast three versions available on
record in this regard. Smt. Jakia Nasim in her complaint
has claimed that a high level meeting was convened by the
Chief Minister at which Chief Secretary Subba Rao, Home
Secretary Ashok Narayan and senior police men were D
summoned at which clear instructions were given ‘not to
deal with the Hindu rioting mobs’. Further, Shri R. B.
Sreekumar has claimed that Shri K. Chakravarthi had
informed him on 28.02.2002 that Shri Narendra Modi, CM
had convened a meeting of senior officers on 27.02.2002
late in the evening on return from Godhra and had said that E
in communal riots police takes action against Hindus and
Muslims on one to one basis. This will not do now – allow
Hindus to give vent to their anger. As against this, Shri
Sanjiv Bhatt claims that the Chief Minister allegedly
impressed upon the gathering in the meeting for that for F
too long the Gujarat Police had been following the principle
of balancing the actions against the Hindus and Muslims
while dealing with the communal riots in Gujarat. This time
the situation warranted that the Muslims be-taught a lesson
to ensure that such incidents do not recur ever again. The
Chief Minister Shri Narendra Modi expressed the view that G
the emotions were running very high amongst the Hindus
and it was imperative that they be allowed to vent out their
anger. It is not understood as to whose words should be
relied upon because none of them i.e. Smt. Jakia Nasim,
H
356 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Shri R. B. Sreekumar and Shri Sanjiv Bhatt were present
in the said meeting. Another factor worth consideration at
this stage is that there is no evidence available on record
that any instructions on these lines were passed on to the
police formation down below thereby ruling out the
possibility of such utterances as alleged were made by CM
B
in the meeting.
Based on the aforesaid three versions Amicus Curiae has
arrived at a conclusion that the same would attract the offences
u/s I53 A (1) (a) & (b), 153B (1) (c),166 and 505 (2) IPC.
C Section 153A (1) (a) IPC states that ‘whoever, by
words promotes or attempts to promote disharmony or
feelings of enmity, hatred, or ill will on the ground of religion
between different religious communities. In other words,
Section 153A(1)(b) IPC can be paraphrased as ‘whoever
commits any act which is prejudicial to the maintenance of
D harmony between different religious communities and
which is likely to disturb the public tranquility’. Even if any
of the aforesaid three versions allegedly made by Chief
Minister, the ingredients of section 153A(1) (a) & (b) are
not attracted. The facets of the allegations attributed to
E Shri Narendra Modi can not fall under sub-class (a) or (b)
of the 153 (A) (1) IPC. At this juncture, it would not be out
of place to mention that the Chief Minster made four
statements within 24 hours on 27/28.02.2002. At Godhra
on 27.02.2002 evening the Chief Minister publicly said that
burning of karsevaks in a train at Godhra was unparalleled
F in the history and assured the people that the culprits would
be punished. He also said that the Government would
ensure that the peace was maintained in the State and the
Government would not be lacking in discharging its duty.
On 28.02.2002 morning, he spoke in the assembly after
G obituary reference that the State government has taken this
cruel, inhuman, heinous and organized crime very seriously
and is committed to take symbolic strict
---------------------------------------------------------------------------

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 357

Page: 458 A
steps and to punish the culprits in such an exemplary
manner that such an incident may not recur in future. On
28.02.2002 afternoon in his press conference in Circuit
House Annexe, Ahmedabad, Shri Narendra Modi reiterated
that Government of Gujarat has taken this heinous train B
burning incident at Godhra very seriously and that people
should help the government to ensure that the culprits are
punished. Shri Narendra Modi also told the press that those
who had acted in retaliation and anger after the incident
shall also not be spared. Further, he appealed made to the
people of Gujarat on Doordarshan on 28.02.2002 evening C
to keep restrain and maintain peace and harmony. He also
said that the Government was determined to bring these
culprits to justice and give them unimaginable punishment.
It may thus be seen that the thrust of CM’s speech
everywhere was that the incident was heinous, organised D
and that the culprits would be brought to strictest,
punishment.
Similarly, section 505 (2) IPC can be paraphrased as
Whoever makes any statement with intend to create (or
permit to create (or is likely to create or permit to create) E
feelings of enmity or hatred or ill will between different
religious community. In view of the reasons enumerated
above a case u/s 505(2) IPC is also not made out.
Also, section 153B (1) (c) IPC can be paraphrased as
Whoever by words makes any assertion concerning, the F
obligation of any class or person by reason of their being
members of a religious community and such assertion is
likely to cause disharmony or feeling of enmity or hatred
or ill will between such members and other persons. As
regards the application of this section, it may be mentioned
G
that it is not the case that the Chief Minister made any
assertion concerning the obligation of any religious
community to do such acts as are likely to cause disharmony.
He did not make any appeal to Hindus or Muslims to take
up arms against each other. On the other hand Shri
Narendra Modi made an appeal on 28.02.2002 that both H
358 SUPREME COURT REPORTS [2022] 6 S.C.R.

A the communities should desist from doing any act by
physically attacking each other. This appeal was
broadcasted by the Doordarshan intermittently. In view of
this no offence u/s 153B (1) (c) IPC is made out.

As regards section 166 IPC, it deals with the public
B servants disobeying any direction of law as to the way in
which he is to conduct himself as a public servant. It can
not be extracted from the statement attributed to Shri
Narendra Modi that he was thereby disobeying any
directions of law as to the way, in which he is to conduct
C himself as Chief Minister. No such directions can be quoted
from law as for the Chief Minister to disobey it. In view of
this there is no application of section 166 IPC at all against
Shri Narendra Modi.

Thus recommendations of Amicus Curiae and
D evidence collected during further investigation u/s 173 (8)
Cr.PC have been examined in detail to see, if the
ingredients of the suggested sections for prosecution are
attracted or not. On such assessment it is reasonably
concluded that no utterances on part of Shri Narendra Modi
E could be attributed suggestive to any intended promotion
of hatred ill-will etc. amongst religious groups. The settled
legal position is that mensrea is required for offences u/s
153A IPC. In view of the same and evidence discussed in
preceding paras, there is no evidence to prima facie allege
commission of suggested offences by Shri Narendra Modi.
F
Shri Sanjiv Bhatt, DIG (under suspension) has sent a
letter dated 30.12.2011 to the Secretary, Hon’ble Justice
Nanavati & Justice Mehta Commission of Inquiry enclosing
herewith an Annexure ‘D’, which is a copy of fax message
No. D-2 /2-COM I/ALERT /174/ 2002, dated 28.02.2002,
G
which he claimed to have sent to different authorities under
his signature. The same Annexure ‘D’ has been uploaded
on website www.twocircle.net. It is reproduced below:

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 359

ANNEXURE-D A
FAX MESSAGE
(PRIORITY: CRASH)
TO PS to CM Gandhinagar
PS to MOS (Home) B
INFO Home Sec Gandhinagar
---------------------------------------------------------------------------
Page: 459
C
Police Gandhinagar
CP Ahmedabad
FROM Addl. D.G.P. Intelligence, G.S. Gandhinagar
O. No D-2/2 COWALERT/100/2002 Date: 28.2.2002
D
Text As informed telephonically to the Hon’ble CM Ex-MP
Ehsan Zafri and his family members residing at Gulbarg Society,
Chamanpura Meghaninagar have been surrounded and are being
attacked by a Hindu Mob in the presence of Police Bandobust (.)
The lives of Ehsan Zafri and other family members are in imminent
danger (.) E
CP Ahmedabad is requested to take immediate effective
action and provide a situation report to SCR under intimation to
this office at the earliest (.)
(Sanjiv Bhatt)
F
Dy. Commissioner (Communal)
For Addl. D. G. P. Int., G. S.
Gandhinagar
Subsequently, on 04.01.2012, Shri Sanjiv Bhatt forwarded G
to Chairman, SIT a copy of his letter No. SRB/COI/120104/01
dated 04.01.2012 addressed to Secretary, Justice Nanavati
Commission of Inquiry enclosing therewith a copy of fax message
No.D-2/2- COM/ALERT /100/2002, dated 27.02.2002, claiming
to have sent the same under his signature. A copy of the said fax
message is also reproduced below: H
360 SUPREME COURT REPORTS [2022] 6 S.C.R.

A FAX MESSAGE
(PRIORITY: CRASH)
To CP Ahmedabad
Info: PS to CM Gandhinagar
B PS to MOS (Home) Gandhinagar
Home Sec Gandhinigar
Police Gandhinagar
From D. G. P. Intelligence, G. S. Gandhinagar
C
O. No D-2/2 COWALERT/100/2002 Date: 27.2.2002
TEXT: Pursuant to the meeting held by the Hon’ble Chief
Minister it has become clear that the State Government wishes to
go ahead with the decision of bringing the dead bodies of Kar
Sevaks to Ahmedabad by road under Police escort (.)
D
The dead bodies will be brought to Sola Civil Hospital in
your Jurisdiction before being taken out for cremation (.) Local
cadres of BJP/ Bajrang Dal are being massively mobilized for
enforcing the VHP/BJP supported Gujarat Bandh (.) Widespread
retributory communal violence is anticipated, in your jurisdiction
E (.) Request appropriate preventive action (.)

(Sanjiv Bhatt)
Dy. Commissioner (Communal)
F
For Addl. D. G. P. Int., G. S.
Gandhinagar
On receiving Shri Bhatt’s communication dated
04.01.2012 a notice u/s 91 Cr.PC was issued to Shri Sanjiv
G Bhat on 13.01.2012, to produce the original/office copy of
the fax message dated 27.02.2002. However, Shri Sanjiv
Bhatt refused to accept the said notice. Instead, he sent a
letter dated 15.01.2012 contending that the aforesaid
document had already been handed over to Shri A.K.

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 361

Malhotra of SIT in the year 2009 and IO Shri Himanshu A
Shukla in
---------------------------------------------------------------------------
Page: 460
2011. Shri Sanjiv Bhatt further contended that, in the normal B
course of investigation, the Investigating Officer should
have called for the original and/or office copy of the aforesaid
fax message from the State IB Gandhinagar and the offices
of the respective recipients of the said fax message.
In this connection, it may be emphasized that the C
statement of Shri Sanjeev Bhatt was recorded by Shri A.K.
Malhotra, Member, SIT during Enquiry on 25.11.2009 &
26.11.2009, and the same was signed by Shri Bhatt.
However, the same did not contain any reference to the
aforesaid two messages, which Shri Bhatt now claims to
have sent on 27.02.2002 & 28.02.2002, despite the fact D
that copies of all others messages duly mentioned by him
in his statement were handed over by Shri Bhatt to Shri
Malhotra. Similarly, the statement of Shri Sanjiv Bhatt was
recorded u/s 161 Cr.PC by the IO Shri Himanshu Shukla
on 21.03.2011 & 22.03.2011, and the same also did not E
contain any reference to the aforesaid two messages. This
raises very serious doubts about the authenticity of the
claim that these messages had in fact been sent to the
concerned addresses. Significantly, the statements recorded
by Shri A.K. Malhotra and the IO (Shri Himanshu Shukla)
were submitted to the highest Court of country (Supreme F
Court) at the relevant point time.
Apart from the aforesaid position, the following points
would go to show that Shri Sanjiv Bhatt had the full
opportunity to produce these messages if they had in fact
been prepared and sent to concerned authorities, and did G
not produce before SIT:
1. Shri Sanjiv Bhatt did not file any affidavit before the
Nanavati Commission of Inquiry, and, in case, he, was
in possession of these documents, he should have
H
362 SUPREME COURT REPORTS [2022] 6 S.C.R.

A filed the same as per the instructions given by Govt.
of Gujarat in the year 2002.
2. Shri R.B. Sreekumar, formerly Addl. DGP (Int.) in his
letter dated 27.12.2011 addressed to Secretary,
Nanavati Commission of Inquiry has categorically
B stated that he had requested all the senior officers of
the State IB in the rank of SP and above including
Shri Sanjiv Bhatt (who had assisted his predecessor
Shri G.C. Raiger, Addl. DG (Int.) from 27.02.2002 to
08.04.2002) to submit any affidavit covering the terms
of reference of the Commission; but none of them
C filed any affidavit. Shri Sreekumar further stated in
his letter to the Nanavati Commission that he had
asked all the senior officers of State IB to provide
him all the relevant documents in their possession
relating to riots. Accordingly, all these documents
D received by him from his officers were appended by
him to his first affidavit filed before the Commission
on 15.07.2002. However, Shri Sanjiv Bhatt did not
produce any such message before Shri Sreekumar.
3. Shri Sanjiv Bhatt did not produce any of the aforesaid
E messages, either before Shri A.K.Malhotra, Member,
SIT during the course of the preliminary inquiry
conducted by him under the orders of Hon’ble
Supreme Court of India or before Shri Himanshu
Shukla, DCP, Crime, Ahmedabad City, who had
conducted further investigation u/s 173(8) in this case
F (Cr.No.67/2002 of Meghaninagar P.S. (Gulberg
Society Case)). He did not also refer to either of these
two fax messages in his statements made before Shri
A.K. Malhotra Member, SIT on 25.11.2002 &
26.11.2002 and before Shri Himanshu Shukla on
G 21.03.2011. As already highlighted above, both these
statements were submitted to the Hon’ble Supreme
Court of India on 14.05.2010 and 25.04.2011
respectively.
4. Shri Sanjiv Bhatt, suo moto, filed an affidavit dated
H 14.04.2011 before the Hon’ble Supreme Court of
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 363

India in SLP (Crl.) 1088/2008 filed by Smt. Jakia A
Nasim. In that affidavit also he did not mention
anything about the two aforesaid fax messages.
5. Shri Sanjiv Bhatt was summoned before the Nanavati
Commission in May, June & July, 2011 for his
deposition and cross examination. However, he did B
not mention anything about the aforesaid two fax
messages to the Commission.
6. Shri Sanjiv Bhatt was called by Shri Raju
Ramchandran, Amicus Curiae for personal interaction
at Gandhinagar on 18.06.2011. On that occasion also, C
Shri Sanjiv Bhatt did not mention anything about the
aforesaid two fax messages to the Amicus Curiae and
confirmed his statements recorded during the SIT’s
Preliminary Inquiry as well as subsequently recorded
u/s 161 Cr.PC by the IO.
D
---------------------------------------------------------------------------
Page: 461
7. Shri R.B.Sreekumar, in his letter dated 28.12.2011
addressed to Shri Sanjiv Bhatt (copy sent to SIT), has
clearly stated that the plethora of incriminating E
information against the Govt., which he (Sanjiv Bhatt)
claimed to possess now, had not been put up to him
at the time of filing his first affidavit on 15.07 2002.
Further, if it had come to his (Sanjiv Bhatt), notice
that such material had not been included in his F
affidavit, nothing stopped him from filing a separate
affidavit bringing these relevant inputs to the notice
of the Commission. Shri Sreekumar also highlighted
that nearly 12 intelligence reports produced before
him by Shri Sanjiv Bhatt were included in it, and the
same did not contain anything about the role of the G
Govt. officials in the alleged planning and execution
of the antiminority genocide and subsequent
prolonged subversion of the criminal justice system
and delayed justice to the riot victims.
H
364 SUPREME COURT REPORTS [2022] 6 S.C.R.

A It may thus be seen that Shri Sanjiv Bhatt produced
two fax messages for the first time before Nanvati
Commission of Inquiry only in the month of December, 2011,
and subsequently before the SIT in January, 2012.
A perusal of the photo copy of the office copy of fax
B message No. D-2/2-COM / ALERT/100/2002, dated
27.02.2002 claimed to have been sent by Shri Sanjiv Bhatt,
the then DCI (Security) on behalf of Addl. DGP (Int.) to CP,
Ahmedabad with information to PS to CM, PS to MoS
(Home), Home Secretary and Police Gandhinagar, would
go to show that there was no security classification of the
C said message. The dispatch register of the D-2 section of
the State IB does not show any dispatch of the said message
as the dispatch number on the said date was under serial
number 90. Investigation revealed that actually a letter No.
D-2 /2-COM/BANAO/100/2002, dated 02.03.2002 was sent
D on behalf of Addl. DG (Int.) to ACS (Home), Govt. of Gujarat
with information to Police Gandhinagar, PS to CM and PS
to MoS(Home) and the same related to I Cr. No. 9/02 u/s
302, 114 etc. of Khanpur P.S., Distt. Panchmahals. The said
message bears a typed dispatch number, which is very
unusual, because all the dispatch numbers on the messages
E sent by State IB on 27.02.2002 were hand written. It is not
understood as to what prompted Shri Sanjiv Bhatt to send
such a message, when all the individuals to whom this
message had been addressed were present in the meeting
held at the CM’s residence on the night of 27.02.2002, and
F it was known to all of them that the Govt. had already
decided to bring the dead bodies to Ahmedabad, for which
the necessary bandobast was required to be made: The said
message had not been marked to IGP (P&C), but was
allegedly put up to Shri O.P. Mathur, the then IGP (PRC)
who allegedly initialled the same in token of having seen
G the same on 28.02.2002. Surprisingly, this message was not
put up to Shri G.C. Raiger, the then Addl. DG (Int.), who
was very much in the office on 28.02.2002. Further, Shri
O.P. Mathur, the then IGP (P & C) also did not mark it to
Addl. DG (Int.), a fact which raises serious doubts about
H the genuineness of the message in question.
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 365

A perusal of the photo copy of the office copy of fax A
message No. D-2 /2-COM/ALERT/174/2002, dated
28.02.2002, now claimed to have been sent by Shri Sanjiv
Bhatt, the then DCI (Security), on behalf of Addl. DGP (Int.)
to PS to CM and PS to MoS (Home) with information to
Home Secretary, Police Gandhinagar and CP, Ahmedabad,
B
would go to show that there was no security classification
of the said message. The dispatch register of the D-2 section
of the State IB also does not show any dispatch of the said
message as the dispatch number on the said date was under
serial number 100. Investigation revealed that O.No. D-2/
2-Com/174/2002, dated 16.03.2002 was sent by Addl. DG C
(Int.) to Shri B.K. Haldar, Jt. Secretary (NI), MHA, New
Delhi and related to the daily report about the communal
incidents up to 16.03.2002 (1800 hrs) in Gujarat state. This
message was allegedly put up to Shri G.C. Raiger, the then
Addl. DG (Int.), for favour of perusal, and the same allegedly
D
bears the initials of Shri Raiger dated 28.02.2002.
Interestingly, the message in question had been addressed
to PS to CM and PS to MoS (Home), whereas the same
was actually actionable by Commissioner of Police,
Ahmedabad City. Further, Shri Sanjiv Bhatt had signed a
fax message No. C/ D-2 /BANAO /178 /2002, dated E
28.02.2002, which was received by Shri E.L. Christian, the
then PI, State IB Control Room and written by Shri
Bharatsinh Rathod, the then AIO, to the dictation of Shri
Christian, who subsequently took it personally to Shri Bhatt
for his signature. In this message, it had been mentioned
F
that, based on received information, Gulberg Society located
in Chamanpura, Meghaninagar had been attacked by a mob
of Hindu rioters and late Ahesan Jafri, Ex-MP along with
his family members and 18 others had been killed, and that
the attack was still continuing and this incident was likely
to have Statewide repercussions. This message would G
clearly show that no earlier intimation prior to the attack
on Gulberg Society had been sent by Shri Sanjiv Bhatt, as
the same did not contain any reference to the earlier
message claimed to
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366 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Page: 462
have been sent by Shri Sanjiv Bhatt vide message No.D-2/
2-COM/ALERT/174/2002 dated 28.02.2002. The
information contained in the message No.178 dated
28.02.2002 had actually been received over telephone by
B Shri E.L. Christian, PI who had dictated the same to his
AIO Shri Rathod and not by Shri Sanjiv Bhatt as claimed by
him. Undoubtedly at the time of signing this message, Shri
Sanjiv Bhatt had marked the message as “MOST
URGENT” in his own handwriting. Efforts were made to
locate the dispatch register and fax register of State IB
C Control Room, but the same had been reportedly
destroyed. Further efforts were made to locate the so called
message No. 174 dated 28.02.2002 with the persons to
whom the said message had been shown addressed, but
without any success till date.
D During the course of further investigation, the persons
who are supposed to have received the two messages dated
27.02.2002 & 28.02.2002 as well as the concerned officials
of State IB, who were present in the office as also in the
Control Room on the aforesaid two dates were examined
E and the evidence collected is discussed in subsequent
paras.
Dr. P.K. Mishra, the then Principal Secretary to Chief
Minister, has denied having received or seen the message
dated 27.02.2002, purportedly sent by Shri Sanjiv Bhatt.
F He is of the view that there was no occasion for Shri Sanjiv
Bhatt to send such a message, because every participant
at the law & order review meeting called by the Chief
Minister on the night of 27.02.2002 was aware of the fact
that the dead bodies of kar-sevaks who were killed in Godhra
train carnage incident, were being brought to Ahmedabad
G by road under police escort. Dr. Mishra denied receiving
or having seen the fax message No. D-2/2- COM/ALERT/
174/2002, dated 28.02.2002. He added that the claimed
message was quite alarming, and that had he received any
such message, he would certainly remember the same. On
H being shown fax message No.C/ D-2 / BANAO / 178/2002,
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 367

dated 28.02.2002 handwritten in Gujarati and signed by Shri A
Sanjiv Bhatt on behalf of Addl. DG (Int.) and addressed to
Home Secretary, Gandhinagar with information to PS to
CM, PS to MoS (Home) Police Gandhinagar and Ahmedabad
City. Dr. Mishra stated that the language/expression of this
message clearly indicated that the information about the
B
said incident was being sent for the first time, as there was
no reference to the message No. 174, which Shri Bhatt now
claims to have sent earlier during that day. Finally, Dr.
Mishra stated that the aforesaid two fax messages dated
27.02.2002 & 28.02.2002 in English allegedly sent by Shri
Bhatt were false and fabricated documents. C
Shri Gordhan Zadafia, the then MoS (Home), denied
having received or seen the two typed fax messages No.
D-2 /2-COM / ALERT/100/2002, dated 27.02.2002 & D-2/
2-COM/ALERT/174/2002, dated 28.02.2002 in English now
claimed to have been sent by Shri Sanjiv Bhatt, the then D
DCI. He further stated that both these messages were false
and bogus, and had never been received in his office.
According to Shri Gordhan Zadafia, these messages have
been fabricated and have been introduced for the first time
after a lapse of about 10 years of the events mentioned
therein, and that this appears to be a deliberate attempt on E
the part of Shri Sanjiv Bhatt to involve him in the Gulberg
Society incident. He does not remember receiving message
No. C/D-2/ BANAO/178/2002, dated 28.02.2002 in Gujarati
bearing the signature of Shri Sanjiv Bhatt. However, Shri
Gordhan Zadafia has stated that the fact that this message F
does not contain any reference to the earlier message No.
174 allegedly claimed to have been sent by Shri Sanjiv Bhatt
on the same day, would show that the earlier message was
a fabricated one. He has stated that he came to know about
the Gulberg Society incident late in the afternoon of
28.02.2002, and that on receipt of the said information, G
necessary instructions were given to the concerned police
officers to deal effectively with the situation.
Shri V.P. Patel, the then Private Secretary to MoS
(Home) has denied receiving or having seen the two typed
H
368 SUPREME COURT REPORTS [2022] 6 S.C.R.

A fax messages No.D-2/2-COM/ALERT/100/2002, dated
27.02.2002 and D-2/2-COM/ALERT/174/2002, dated
28.02.2002 in English claimed to have been sent by Shri
Sanjiv Bhatt, the then DCI. He further stated that he did
not remember to have received the handwritten fax
message No. C/D-2/BANAO/178/2002, dated 28.02.2002
B
in Gujarati bearing the signature of Shri Sanjiv Bhatt.
Shri Ashok Narayan, the then ACS (Home), denied
having received or seen the typed fax message No. D-2/2-
COM/ALERT/100/2002, dated 27.02.2002 claimed to have
been sent by Shri Sanjiv Bhatt. Shri Ashok Narayan is of
C the view that such a message was not required to be sent
by Shri Sanjiv Bhatt, because as a decision to bring the
dead bodies of the kar-sevaks to Ahmedabad by road had
already been taken by the Chief Minister at Godhra itself
sometime in the evening of 27.02.2002, and this fact was
D well within the knowledge of DGP and CP,
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Page: 463
Ahmedabad. He further denied having received or seen a
E typed fax message No.D-2 /2-COM/ALERT/174/2002,
dated 28.02.2002 purportedly sent by Shri Sanjiv Bhatt on
behalf of Addl. DS (Int.) to PS to CM and PS to MoS (Home)
with information to Home Secretary, Gandhinagar.
According to Shri Ashok Narayan, the message was rather
unusual. He added that both these fax messages are not
F genuine and are false and fabricated documents. He denied
having received any information about the attack on Gulberg
Society, and he came to know about the killing of late Ahesan
Jafri, Ex-MP through Shri Nityanandam, the then Home
Secretary some time after the incident. After going through
G the message No.C/D-2/ BANAO/178/2002, dated
28.02.2002 handwritten in Gujarati. Shri Ashok Narayan
stated that he does not remember to have received such a
message after the incident, and has stated that the same
does not contain any reference to any earlier message vide
No.174 claimed to have been sent by Shri Sanjiv Bhatt.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 369

Shri K. Chakravarthi, the then DGP, Gujarat has A
stated that the fax message in English bearing No.D-2/2-
COM/ ALERT/100/2002, dated 27.02.2002 purportedly
sent by Shri Sanjiv Bhatt as DCI (Security) was not received
or seen by him on 27.02.2002 night, though a copy of the
same is shown to have been marked to Police Gandhinagar.
B
He has further stated that in all such law & order matters
normally senior officers of State IB were expected to inform
their superior telephonically and thereafter follow it up with
such written message. He has also stated that Shri Sanjiv
Bhatt did not contact him telephonically or in person on
the night intervening 27/28.02.2002 in this regard. He has C
denied to have received any intelligence report about the
massive mobilization of local cadres of BJP for the VHP
supported Gujarat Bandh. After going through a photo copy
of another fax message bearing No. D-2/2-COM/ ALERT/
174/2002, dated 28.02.2002, Shri Chakravarthi has denied
D
to have received any such message at the relevant time.
According to Shri Chakravarthi, a member of a minority
community from Ahmedabad had telephoned him at about
1400 hrs on 28.02.2002, about an attack on late Ahesan
Jafri, Ex- MP’s house and that he had immediately
telephoned CP, Ahmedabad City in the matter, to which E
CP, Ahmedabad city, had informed that he had already sent
officers and additional reinforcements to deal with the
situation. Shri Chakravarhti has also stated that a fax
message was also sent by the State Control Room to CP,
Ahmedabad City at 1405 hrs on 28.02.2002 in this regards.
F
On looking into the photo copy genuine of handwritten fax
message bearing No. C/D-2/BANAO/178/2002, dated
28.02.2002 in Gujarati, Shri Chakravarthi has stated that
the language of the said fax message shows that the Gulberg
Society incident was reported for the first time through this
message after the occurrence of the incident on 28.02.2002, G
which proves the falsity of earlier message No. D-2 /2-COM
/ ALERT / 174 / 2002 dated 28.02.2002 claimed to have
been sent by Shri Sanjiv Bhatt.
Shri P.C. Pande, the then CP, Ahmedabad City, has
stated that it was well within his knowledge after the meeting H
370 SUPREME COURT REPORTS [2022] 6 S.C.R.

A of 27.02.2002 night held at CM’s residents, that the dead
bodies of the kar-sevaks killed in the Godhra incident were
being brought to Ahmedabad City with a view to facilitate
the relatives of the deceased to identify and claim the dead
bodies. As such there was no need for Shri Sanjiv Bhatt to
send a fax message No.D-2/2-COM/ALERT/100/2002,
B
dated 27.02.2002 to him. He denied having received any
such fax message in his office on the night intervening 27/
28.02.2002 as he remained in his office in Shahibaug till
about 0100 hrs on 28.02.2002. He further denied seeing
any such message. He has also denied having received or
C seen fax message No. D-2/2-COM/ALERT/174/2002, dated
28.02.2002. He has given the details of the additional force/
officers sent by him on receipt of the messages from Sr. PI,
Meghaninagar regarding the surrounding of Gulberg
Society by a mob. He has also stated that the DGP might
have spoken to him about the situation in Gulberg Society
D
and also about the declaration of curfew, to which he was
informed that the curfew had been declared in Chamanpura
Chowky area around 1220 hrs. Shri Pande is of the view
that both these fax messages now claimed to have been
sent by Shri Sanjiv Bhatt, the then DCI, are false and
E fabricated documents. According to Shri Pande, this
message was only marked to him for information, though
he was required to take action on the same and send a
situation report. Shri Pande has denied sending any
situation report with regard to the Gulberg Society matter
to the SCR, Gandhinagar as the message was never sent to
F
him. As regards the message No.C/D-2/BANAO/178/2002,
dated 28.02.2002 handwritten in Gujarati and signed by Shri
Sanjiv Bhatt, Shri Pande has stated that this message could
have been sent only after the incident had taken place at
Gulberg Society, and the very fact that it did not contain
G any reference to the alleged earlier message No. 174
claimed to have been sent by Shri Sanjiv Bhatt would go to
show that the said message was not a genuine one and
appears to have been manipulated subsequently.
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H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 371

Page: 464 A
Shri O.P. Mathur, the then IGP (Political &
Communal), has stated that fax message No.D2/2-COM/
ALERT/100/2002, dated 27.02.2002 does not have any
security classification and in case it passed through the
Control Room, it should have contained details about the B
time and date. Further, the fax message does not bear the
date and time at which it was passed on to the authorities,
and as such it can not be said as to whether the said message
was actually passed on to the concerned authorities or not.
Also, according to Shri Mathur, the language of the fax
message does not show as to under whose instructions the C
said message was sent and who informed Shri Sanjiv Bhatt
as to what had transpired in the meeting, because in the
said message did not say that Shri Sanjiv Bhatt had himself
attended the said meeting. Had Shri Sanjiv Bhatt attended
the said meeting, he was duty bound to submit a report in D
writing to Addl. DG(Int.) on 28.02.2002, when Shri G.C
Raiger, the then Addl. DG (Int.) was very much in the office.
Shri Mathur has further stated that the said fax message
had not been marked to anyone including himself. After
looking into his alleged initials dated 28.02.2002 on the
office copy of the typed fax message dated 27.02.2002 E
claimed to have been sent by Shri Sanjiv Bhatt, Shri Mathur
has stated that the said initials were not his and the same
had been fabricated by someone, as the message was not
marked to him. Shri Mathur has also stated that had it been
genuine paper, he would have marked the same to Addl. F
DG (Int.) for his information (being the overall Head of
Intelligence wing) as Shri G.C. Raiger was very much in
the office on 28.02.2002. Shri Mathur finally stated that the
said fax message was a forged document, which had been
fabricated subsequently by someone with a vested interest.
He has denied receiving the message No. D-2/2-COM/ G
ALERT/174/2002, dated 28.02.2002 in English allegedly
sent by Shri Sanjiv Bhatt to different authorities.
Shri G.C. Raiger, the then Addl. DG (Int.) has stated
that the typed fax message No. D-2/2-COM/ALERT/174/
H
372 SUPREME COURT REPORTS [2022] 6 S.C.R.

A 2002, dated 28.02.2002 was never put up to him on
28.02.2002 for perusal, and his initials dated 28.02.2002
on the said message are fabricated. He has stated that the
said message was never seen by him and that it was a
fabricated document. He has also stated that another typed
fax message No.D-2/2-COM/ALERT/I00/2002, dated
B
27.02.2002 claimed to have been sent by Shri Sanjiv Bhatt
to different authorities was neither put up to him for his
information nor shown to him. He was also not orally
informed about the same by Shri Sanjiv Bhatt. However
Shri Raiger has stated that on 28.02.2002 afternoon, Shri
C Sanjiv Bhatt came to his chamber and conveyed a message
based on a report from local IB unit, Ahmedabad City about
the collection of a mob outside Gulberg Society, where late
Ahesan Jafri, Ex-MP was residing and also about the
inadequate presence of police on the spot. Shri Raiger has
stated that the said message was passed on to the
D
Ahmedabad City Police Control Room. Further, according
to Shri Raiger, he along with Shri Sanjiv Bhatt, met the DGP
immediately and informed him about the developing
situation at Gulberg Society. Shri Raiger further stated that
the DGP was requested to impress upon the CP,
E Ahmedabad City to declare curfew in the area. To this, DGP
immediately responded by telephonically speaking to Shri
P.C. Pande the then CP, Ahmedabad City to ascertain the
factual position CP, Ahmedabad, Shri Pande informed the
DGP over phone that a curfew had already been imposed.
Shri Raiger has also stated that after meeting the DGP,
F
there was no reason for Shri Sanjiv Bhatt to send such a fax
message on 28.02.2002. After going through the message
No.C/D-2/BANAO/178/2002, dated 28.02.2002 handwritten
in Gujarati and bearing the signature of Shri Sanjiv Bhatt,
Shri Raiger has stated that the said message does not
G contain any reference to message No.D-2 /2-COM/ALERT/
174/2002, dated 28.02.2002 claimed to have been sent
earlier during the day by Shri Sanjiv Bhatt. This would go
to show that the message No. D-2/2-COM/ALERT/174 /
2002, dated 28.02.2002 was not a genuine one.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 373

Shri P.B. Upadhyay, the then Deputy Commissioner A
in charge of Communal section has stated that he had
proceeded on leave on 26.02.2002. However, Shri
O.P.Mathur, the then IGP (Admn. & Security), who held
the additional charge of the post of IGP(P & C) spoke to
him over phone and cancelled his leave, with instructions
B
to report immediately for duty in the light of Godhra train
carnage incident. Shri Upadhyay accordingly reported for
duty in the office on 27.02.2002 evening around 1700 hrs
or so. He has further stated that Shri Sanjiv Bhatt, the then
DCI (Security) looked after his work in his absence and
had sent some messages during the day (27.02.2002.). He C
has also stated that he remained in the office till late hours
of 27.02.2002 as he stayed in Gandhinagar and that Shri
Sanjiv Bhatt left the office earlier than him as he used to
live in Ahmedabad city. He has denied complete knowledge
about the two-typed fax messages No.D-2/2-COM/ALERT/
D
100/2002, dated 27.02.2002 and D-2/2-COM/ ALERT/174/
2002, dated 28.02.2002 in English, and has stated that
neither Shri Sanjiv Bhatt informed him about it nor these
messages were shown to him. According to Shri P.B.
Upadhyay, these messages do not appear to be genuine, as
the dispatch number had been typed, which was quite E
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Page: 465
unusual as all dispatch numbers used to be put down in
hand by the dispatcher. According to Shri P.B. Upadhyay, F
had such message been issued either on 27.02.2002 or
28.02.2002, the same would have definitely been put up to
him for perusal as he used to handle the ‘Communal’ subject
in the office as per the then division of work. He has also
stated that the initials dated 28.02.2002 of Shri O.P. Mathur
on the fax message dated 27.02.2002 do not appear to be G
genuine. Shri P.B. Upadhyay has also stated that the very
fact that the message dated 28.02.2002 was addressed to
PS to CM and PS to MoS (Home) and on which CP,
Ahmedabad City was to take action, to whom only a copy
was marked, would go to show that the message was not a H
374 SUPREME COURT REPORTS [2022] 6 S.C.R.

A genuine one. He has denied knowledge about a meeting at
CM’s residence on 27.02.2002 evening and that Shri Sanjiv
Bhatt also did not inform him on 28.02.2002 of having
attended any meeting with the CM in the night of
27.02.2002.
B Shri Iftekhar Ahemad V. Pathan, AIO, who is posted
to D-2 section (Communal section) of State IB since 2000,
has stated that the office copies of fax messages No.D-2/2-
COM/ALERT/100/2002, dated 27.02.2002 and D-2/2-
COM/ALERT/174/2002, dated 28.02.2002 typed in English
are not available on records of D-2 section and that he had
C never seen the same. He has further stated that these
messages were not dispatched from the dispatch register
from the office of State IB and proved that the dispatch No.
100 related to a letter dated 02.03.2002 sent by Shri P.B.
Upadhyay to ACS (Home) regarding I Cr.No. 9/02 u/s 302
D IPC of Khanpur P.S. Distt. Panchmahals, and dispatch No.
174 related to a fax message sent by Add. DG (int.) to Shri
B.K. Haldar, Jt. Secretary, MHA, New Delhi on 16.03.2002
regarding communal incidents reported up to 16.03.2002.
According to Shri Pathan, the very fact that the dispatch
numbers had been typed would show that the messages
E are false and bogus. He has further stated that Shri Sanjiv
Bhatt did not come to State IB office late in the evening of
27.02.2002 while he was in the office till quite late. He has
proved that fax message No.C/D-2/BANAO/178/2002, dated
28.02.2002, handwritten in Gujarati, to be in the handwriting
F of Shri Bharatsinh Rathod and signed by Shri Sanjiv Bhatt,
was a genuine message and a copy of the same was available
in D-2 branch. The same does not contain any reference of
either message No D-2/2- COM/ALERT/174/2002, dated
28.02.2002 claimed to have been sent by Shri Sanjiv Bhatt,
which appears to be bogus.
G
Shri V.M. Sonar, the then PI and Shri S.R. Shukla, the
then IO of State IB, who were posted to D-2 Branch and
were present in the office on 27.02.2002 & 28.02.2002 have
corroborated the statement of Shri I.V. Pathan, AIO, D-2
branch, State IB.
H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 375

Shri Bharatsinh Rathod, the then AIO, State IB A
Control Room, who was on duty from 0800 hrs to 2000 hrs
on 28.02.2002, has stated that the fax message No. C/D-2/
BANAO/178/2002, dated 28.02.2002 was in his hand writing
and was written to the dictation of Shri E.L. Christian, the
then PI, State IB Control Room, who had received the said
B
information over telephone from IB, Ahmedabad Region.
Shri Rathod has stated that Shri Christian took this
message personally to Shri Sanjiv Bhatt, who signed the
same in Gujarati. He has further stated that he put down
the dispatch No.178 from the Control Room dispatch
register in his hand writing and passed on the same to the C
fax operator for transmission to the concerned authorities.
However, he does not recollect the exact time of the receipt
of the said message, but it was certainly after the incident
had taken place at the Gulberg Society. On looking into
the photo copy of the office copy of fax message No.D-2/2-
D
COM/ALERT/174/2002, dated 28.02.2002 in English, he
has stated that the message does not bear State IB Control
Room dispatch number, which was essential had the same
been dispatched from D-2 branch. He has denied having
seen or passed on the said fax message. His version has
been corroborated by Shri E.L. Christian, the then PI, State E
IB Control Room.
Shri A.S. Kasiri, the then PI, State IB Control Room
has stated to have sent the Control Room messages No.
D-2/2-COM/ALERT/172/2002, dated 27.02.2002 and D-2/
2-COM/ALERT/173/2002, dated 27.02.2002 during his day F
duty hours from 0800 hrs to 2000 hrs on 27.02.2002 and
has confirmed his signature thereon.
Shri N.M. Gohil, the then AlO, State IB Control Room
has confirmed writing the fax messages No. D-2/2-COM/
Kar-Sevak/78/2002, dated 28.02.2002 & D-2/2-COM/ Kar- G
Sevak/80/2002, dated 27.02.2002 and has identified the
signature of Shri V.J. Solanki, the then PI, State IB Control
Room on the same. Shri V. J. Solanki could not be
examined, because he is unable to speak or walk following
a paralytic attack.
H
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376 SUPREME COURT REPORTS [2022] 6 S.C.R.

A Page: 466
To sum up, on the basis of the further investigation
conducted into the two typed fax messages NO.D-2/2-COM/
ALERT/100/2002, dated 27.02.2002 and D-2/2-COM/
ALERT/174/2002, dated 28.02.2002, it is conclusively
B established that Shri Sanjiv Bhatt, the then DCI, did not
produce the same or copies thereof before any of the
authorities before December, 2011, though a number of
opportunities arose for him to do so. From the records of
D-2 section, it is conclusively established that one of these
fax messages were issued/dispatched from the said section
C of State IB dealing with the communal affairs. Besides that
Shri P.B. Upadhyay, the then DCI(Communal) and Shri I.V.
Pathan, AIO, who is posted to D-2 Section since the year
2000 till date, have categorically stated that neither of those
two fax messages was issued from their section and that
D copies thereof are not available in the records of the State
IB. Shri O.P. Mathur, the then IGP(P & C) has categorically
stated that fax message NO.D-2/2-COM/ALERT/100/2002,
dated 27.02.2002 was fabricated document and that his
initials thereon are not genuine. Shri G.C. Raiger, the then
Addl. D.G.(Int) has denied his initials on the fax message
E No. D-2/2-COM/ALERT/174/2002, dated 28.02.2002 and
has stated that the same have been forged by someone and
that no such fax message was ever sent by Shri Sanjiv Bhatt.
Shri Gordhan Zadafia, the then MoS (Home), Shri V.J.Patel,
the then P.S. to MoS(Home), Dr. P.K. Mishra, the then
F Principal Secretary to Chief Minister, Shri Ashok Narayan,
the then ACS (Home) and Shri P.C. Pande, the then CP,
Ahmedabad City, to whom the aforesaid fax messages were
claimed to have been sent by Shri Sanjiv Bhatt, all have
denied having received any such fax messages. The very
fact that there is no reference to fax message No. 174 dated
G 28.02.2002 by Control Room in fax message No.178 actually
sent on 28.02.2002 after the Gulberg Society incident, would
conclusively prove that no such message was sent earlier
on 28.02.2002. The oral and documentary evidence available
on record would therefore conclusively prove that these
H fax messages now produced by Shri Bhatt have been
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 377

fabricated subsequently with an ulterior motive, and have A
been produced by Shri Sanjiv Bhatt for the first time before
the Nanavati Commission of Inquiry and subsequently
before SIT in January, 2012. No reliance can, therefore, be
placed upon both these fax messages.
To sum up, Shri A.K. Malhotra, Member, SIT has B
conducted an inquiry into the complaint made by Smt. Jakia
Nasim as per the orders of the Hon’ble Supreme Court of
India passed on 27.04.2009. In compliance to the said order
a report was submitted by the SIT to the Hon’ble Supreme
Court of India on 13.05.2010, in which further investigation
u/s 173(8) Cr.PC was suggested to be conducted in respect C
of Shri Gordhan Zadafia, Shri M.K. Tandon, Jt. CP and Shri
P.B. Gondia, DCP, Zone-IV, Ahmedabad City. Further
investigation in the matter was conducted by the
undersigned (Shri Himanshu Shukla, DCP, Crime Branch,
Ahmedabad City) under the supervision of Shri Y.C. Modi, D
Addl. DG & Member, SIT and a report in the matter was
submitted to the Hon’ble Supreme Court on 17.11.2010.
Both the aforesaid reports were given to Shri Raju
Ramchandran, Sr. Advocate, who had been appointed as
Amicus Curiae in the matter by the Hon’ble Supreme Court
of India. The Amicus Curiae submitted his Interim Report E
in the matter to the Hon’ble Supreme Court of India on
20.01.2011, vide which he suggested further investigation
in respect of some of the issues.
In compliance to the order passed by the Hon’ble
Supreme Court of India on 15.03.2011, to conduct further F
investigation into the matter u/s 173 (8) Cr.PC, Shri
Himanshu Shukla, DCP, Crime Branch carried out further
investigation under the overall supervision of Chairman,
SIT Shri R.K. Raghavan, Shri Y.C. Modi, Addl. DG &
Member, SIT and Shri A.K. Malhotra, Member, SIT and G
another report was submitted to the Hon’ble Supreme Court
of India on 25.04.2011. The Hon’ble Supreme Court of India
handed over the said report to the Ld. Amicus Curiae for
his examination and independent opinion.

H
378 SUPREME COURT REPORTS [2022] 6 S.C.R.

A The Ld. Amicus Curiae accordingly examined the SIT
reports and also interacted with some of the witnesses
including the police officers and submitted his report to
the Hon’ble Supreme Court of India on 25.07.2011. The
Hon’ble Supreme Court of India after careful consideration
of the matter passed an order on 12.09.2011, directed the
B
Chairman, SIT to forward a Final Report along with the
entire material collected by the SIT to the Court which had
taken cognisance of FIR of I. CRNo. 67/2002 of
Meghaninagar P.S as required u/s 173 (2) Cr.PC of the
Court.
C
It may be mentioned here that the Ld. Amicus Curiae
has agreed with the various recommendations made by the
SIT on the different issues inquired into/investigated by
the SIT. However, the Ld. Amicus Curiae is of the view
that at this prima facie stage offences u/s 153A(1)(a)& (b),
D 153B (1)(c), 166 and 505 (2) IPC are made out against Shri
Narendra Modi

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Page: 467
E
regarding the statement made by him in the meeting on
27.02.2002. In this connection, as discussed, above SIT is
of the view that the offences under the aforesaid sections
of law are not made out against Shri Narendra Modi.
F
In the light of the aforesaid facts, a closure report is
being submitted for favour of perusal and orders.

(Himanshu Shukla)

G DCP & IO, SIT

Gandhinagar

(emphasis supplied)

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 379

A

B

C

D

E

F

G

H
380 SUPREME COURT REPORTS [2022] 6 S.C.R.

A

B

C

D

E

F

G

H
ZAKIA AHSAN JAFRI v. STATE OF GUJARAT & ANR. 381

A

B

C

D

E

F

G

Bibhuti Bhushan Bose Appeal dismissed.

H