The offences and the evidence

The FIR, the SIT report and the data unearthed during CJP’s investigations contain considerable evidence of serious crimes and grave miscarriages of justice, leading to serious allegations that have emerged in this context. We examine some of them.
Allegation I: The decision to take the charred bodies of the victims of the Godhra arson to Ahmedabad, handing them over to an office-bearer of the Vishwa Hindu Parishad (VHP), not to government officials. The bodies were handed over to the then state general secretary of the VHP, Dr Jaideep Patel, who is accused of instigating the mob in the Naroda Gaon case. The decision to parade them through Ahmedabad in unrestrained funeral processions during which mobs raised provocative slogans. The allegation in the FIR is that the decision to take the bodies in a ceremonial procession to Ahmedabad was a premeditated decision taken by chief minister Narendra Modi against the advice of the Panchmahal (Godhra) collector/district magistrate, Jayanti Ravi.

The SIT has in its findings stated that given the presence of the then minister of state for home, Gordhan Zadaphiya, at Godhra, it was a collective decision of the cabinet. Although Zadaphiya and Jaideep Patel initially concurred on this, Zadaphiya has since given a contrary statement to the SIT that implicates Modi. Investigating officer AK Malhotra speaks of two separate cremations at Ahmedabad on February 28, 2002 whereas SIT chairperson RK Raghavan casually mentions one. Neither of the two SIT officials gives weight to the documentary evidence provided in the Gujarat State Intelligence Bureau report (titled C/Dir/Smashan yatra/176/2002 and dated February 28, 2002) marked to Modi’s office and senior police officials, wherein the “likelihood of disturbances” after funeral processions was pointed out.

Call records of Jaideep Patel
An analysis of Jaideep Patel’s call records is revealing. It shows that between 8:03 p.m. and 11:58 p.m. on February 27, 2002 he made and received calls to/from Gordhan Zadaphiya. Patel was also in constant touch with police officers; we do not know why. His call records show that between 1:05 p.m. and 9:16 p.m. on February 27, 2002 he made and received calls to/from the then DCP (zone V), Ahmedabad, RJ Savani. CJP submitted details of Patel’s call records to Malhotra which show that he was also in close touch with chief minister Narendra Modi’s office. Malhotra is strangely silent on this. On February 28, 2002 Jaideep Patel had five telephone conversations with the chief minister’s office (CMO). Why?

The question that remains is whether it is normal procedure to hand over bodies of the victims of a tragedy in such a sensitive matter, which could have widespread repercussions on intercommunity peace and harmony, to an office-bearer of an organisation like the VHP which has a virulent track record of instigating violence but which happens to have powerful political patrons, including the chief minister and senior functionaries of the ruling party in the state?

Allegation II: The illegal instructions, to allow Hindus to vent their anger, issued by Modi at a top-level meeting held at the chief minister’s residence on February 27, 2002. It is clear from the SIT’s investigations that such a meeting did take place. It has also been established that no minutes of the proceedings were kept. The continuing dispute is about what transpired at the meeting.

The SIT recorded a joint statement from Justice PB Sawant, a former judge of the Supreme Court, and Justice Hosbet Suresh, a former judge of the Bombay high court, who had been members of the Concerned Citizens Tribunal – Gujarat 2002. They narrated details about the February 27 meeting from the confessions made to them by the late Haren Pandya, former minister of state for revenue, in mid-May 2002 when he deposed before the tribunal. In their statement before the SIT, they clearly stated that Pandya had testified before them that “Narendra Modi had made it clear that there would be a backlash from Hindus on the next day… and police should not come in their way”. The FIR also refers to Pandya’s testimony relating to a high-level meeting convened by the chief minister to which the then chief secretary, the then home secretary and senior policemen were summoned and to whom clear instructions were given “not to deal with the Hindu rioting mobs”.
Sanjiv Bhatt, who is currently making headlines, had earlier told the SIT that he would speak about this meeting and the illegal instructions issued at the meeting only if there was a legal obligation to do so. Bhatt, who in 2002 held the post of SP, security, in the SIB, also referred to a message received at the  control room on February 27, 2002 announcing that the chief minister had called for a situational review meeting. As is now well known, the SIT subsequently recorded a statement from Bhatt under Section 161 of the CrPC and he has since submitted an affidavit in this regard to the Supreme Court of India.

The FIR records that RB Sreekumar, who in 2002 held the post of ADGP, intelligence, had stated in an affidavit before the Nanavati-Shah Commission that the then director general of police (DGP), Gujarat, K. Chakravarti, had told him about the crucial meeting held by Chief Minister Modi on February 27, 2002. The chief minister had said at the meeting that “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” (paragraph 84 of RB Sreekumar’s fourth affidavit before the Nanavati-Shah Commission dated October 27, 2005).  

Allegation III: The illegal stationing of two ministers in the state and city police control rooms is a fact that has been established. The SIT admits this. However, there has been no attempt to further investigate the logical consequences of political interference with the proper functioning of the police i.e. preventing the police in several districts from doing their constitutional duty. The FIR refers to press reports of the time which documented the presence of senior cabinet ministers in the state and city police control rooms and their illegal interference in police functioning, their subversion of police rules and protocol by instructing policemen not to function and otherwise manipulating instructions.

Ringing evidence
Who was the chief minister calling while Gujarat burned?

The CMO makes 15 calls to the Ahmedabad police commissioner, PC Pande, on February 28, 2002. The CP does not step out of his office between 10:50 a.m. and 7:10 p.m. although the city was aflame from about 11 a.m. onwards. Were these calls directly correlated to the instructions given to top echelons of the police not to act?

The CMO makes contact with the VHP Gujarat general secretary, Dr Jaideep Patel (now an accused in the Naroda Gaon massacre), five times on February 28, 2002. This includes three conversations with Sanjay Bhavsar, officer on special duty to
the chief minister, and one with the chief minister’s PA, Tanmay Mehta.

The chief minister’s office numbers record only three telephone calls through the day that Ahmedabad was burning i.e. February 28, 2002. His residence records only two calls. Is this not unusual?

Allegation IV: The failure of the police to act, especially as a direct result of political interference. The FIR details several instances that corroborate this.

a) K. Chakravarti, the then DGP of Gujarat, had not given any special instructions about the preservation of law and order and no strict instructions on how mobs should be dealt with.

b) The then CP, Ahmedabad, PC Pande, commented on Newshour, Star News, on February 28, 2002 that: “These people also, they somehow get carried away by the overall general sentiment. That’s the whole trouble. The police are equally influenced by the overall general sentiments.”

c) Rahul Sharma, who in 2002 held the post of SP, Bhavnagar, stated during his cross-examination before the Nanavati-Shah Commission in 2004 that the attack on a madrassa housing hundreds of Muslim children, which took place under his jurisdiction on March 1, 2002, appeared to be an organised one. He also revealed that the minister of state for home, Gordhan Zadaphiya, had later complained to him about the greater number of Hindu deaths in police firing in Bhavnagar as compared to Muslims.

d) Police Inspector (PI) Khurshid Mysorewala, who was stationed at the Naroda police station in 2002, in an affidavit and during his cross-examination before the Nanavati-Shah Commission in 2004, averred that due to the lack of preventive measures, the instructions from superiors about system overload, the non-provision of reinforcements and other reasons, he was unable to avert the attacks or respond to the Muslim victims’ cries for help and stop the heinous crimes that took place in Naroda Patiya.

e) MK Tandon, in 2002, the JCP, Ahmedabad, stated in his cross-examination before the Nanavati-Shah Commission that when the incidents at Naroda Patiya and Gulberg Society, Meghaninagar, occurred, neither he nor the police commissioner were present; that none of the policemen who were present used force to try and disperse the mob; and that no inquiries were made by the state home minister regarding the breakdown of law and order. When the attack on Gulberg Society took place, two deputy superintendents of police, one PI and one officer of the Central Industrial Security Force were present but no strict measures were taken to disperse the mob.

Allegation V: The illegal instructions given by upper echelons of the Gujarat executive to senior policemen, recorded by the then ADGP, RB Sreekumar, in a handwritten personal register and detailed in the FIR.

a) RB Sreekumar, in his third affidavit before the Nanavati-Shah Commission dated April 9, 2005, records the attempts made by senior officers in his department and the then undersecretary, Dinesh Kapadia, the then secretary, law and order, GC Murmu, and the then government pleader, Arvind Pandya – after Sreekumar had filed his first affidavit before the commission – to pressurise him to refrain from filing further affidavits and from telling the truth before the commission i.e. to make him commit the criminal offence of perjury. Sreekumar stated that he was intimidated and warned by Murmu and Pandya to lie on oath and to avoid telling the whole truth.  
b) Paragraph 91 of Sreekumar’s fourth affidavit dated October 27, 2005 lists the names of several senior bureaucrats and police officials who, despite the expanded terms of reference of the Nanavati-Shah Commission (which, after July 2004, included within its ambit the “role and conduct of the then chief minister or any other ministers in his council of ministers, police officers, other individuals and organisations” in regard to the post-Godhra violence), bowed to pressure and did not file second affidavits that would have enlarged on the conduct of the chief minister Narendra Modi or any other ministers, etc.

Allegation VI: Officers of the state have been directly influenced to testify to falsified events and thereby commit the criminal act of perjury, as the FIR demonstrates. At the time when the FIR was prepared, this related to the lies and contradictions stated on oath by senior IPS and IAS officers in their affidavits before the Nanavati-Shah Commission.

Former Ahmedabad police commissioner PC Pande (accused No. 28 in the FIR) stated on oath before the Nanavati-Shah Commission that he had a memory lapse regarding what actually transpired at Gulberg Society on February 28, 2002. The commission failed to question him about why curfew was not imposed in Ahmedabad city until as late as 1 p.m. on February 28 when on February 27, 2002 itself at least 14 incidents of mob violence had been recorded in FIRs by the police. He was subsequently examined by the SIT on two occasions when, having apparently regained his memory, he denied being in possession of control room records and other crucial evidential material.

The absence of these documents was recorded by the SIT’s investigating officer, AK Malhotra. Listing the constraints faced by him as IO, he cites “destruction of critical documentary evidence” as one of the limitations he faced. Ironically, records were ostensibly destroyed in 2007 while the Supreme Court was seized of the matter thus amounting to contempt of court.

Chapter XI of the Indian Penal Code, ‘Of False Evidence and Offences Against Public Justice’ (Sections 201-205), and Chapter X, ‘Of Contempts of the Lawful Authority of Public Servants’ (Sections 175, 177, 187 and 188), refer to offences by public servants of failing to assist the course of public justice, destroying evidence and so on. After the Supreme Court first indicated that it would look beyond the SIT’s dismissive conclusions (January 20, 2011) and the SIT began formally recording statements under Section 161 of the CrPC, PC Pande made an interesting turnabout.

In its earliar report submitted to the Supreme Court, the SIT did find Modi guilty of a brazenly communal mindset. It remains to be seen what shape the SIT report/charge sheet will now take

On April 11, 2011 AK Malhotra came to Mumbai to record the statement of CJP’s Teesta Setalvad under Section 161. She insisted on mentioning the destruction of records as a specific culpable, criminal offence whereupon Malhotra unexpectedly informed her that, post-January 20, while the SIT was recording his statement under Section 161, PC Pande had done a complete turnaround and submitted a CD containing 3,500 scanned pages of hitherto ‘destroyed’ documents. Setalvad had in a letter to the SIT dated April 21, 2011 pointed out that Pande’s selective suppression of records during the SIT’s earlier investigations, and the mysterious reappearance of these documents, itself merited thorough investigation.

Allegation VII: The top echelons of the state administration and police force deliberately ignored the reports and warnings issued by their own State Intelligence Bureau, and other indicators, as demonstrated in the FIR.

a) RB Sreekumar, in paragraph 17 of his first affidavit before the Nanavati-Shah Commission dated July 6, 2002, stated that in response to a message received from the Uttar Pradesh intelligence department (during the period preceding the Godhra incident), the Gujarat SIB had requested all SPs and police commissioners to inform the SP, Faizabad, about the movement of kar sevaks from their respective jurisdictions. Following this, on February 16, 2002 the SP, Western Railway, Vadodara, had informed the IGP, intelligence, Uttar Pradesh, that on February 22, 2002 Prahlad Patel, president of the Bajrang Dal, Mehsana, would be leading a group of 150-200 trishul-bearing Bajrang Dal activists to the Ayodhya Maha Yagna on the Sabarmati Express.

b) In paragraphs 18 and 19 of the affidavit, Sreekumar points to the failure of the central and Uttar Pradesh (police) intelligence departments to provide adequate and timely information to the Gujarat state or SIB about the return journey of the kar sevaks, their unruly behaviour while returning from Ayodhya aboard the Sabarmati Express and, more specifically, their altercation with Muslims when the latter attempted to board the train at Rudauli.

c) In addition to the reports relating to the trouble anticipated on and after February 28, 2002, as communal violence persisted beyond the initial phase, the Gujarat SIB continued to provide specific intelligence reports, as revealed in paragraph 26 of Sreekumar’s first affidavit. In two such reports dated April 15 and April 26, 2002, the SIB provided information about impending communal trouble, including among other things the plan by radical Hindu elements to launch a large-scale assault on a Muslim colony in Ahmedabad and a plan by Bajrang Dal leaders to distribute lethal weapons. None of these reports were acted upon by the police hierarchy or the state executive.

Allegation VIII: The punitive treatment meted out by the state to those police officers who acted constitutionally to maintain law and order. While the FIR mentions six officers who were so punished, since then, at least three more officers have received similar treatment at the hands of the state.

Allegation IX: The rewards given to the senior IAS and IPS officers who bowed to Chief Minister Modi’s diabolical, unconstitutional plans. The FIR names 14 officers who were so rewarded.

Allegation X: The subversion of the criminal justice system.

The appointment of public prosecutors (PPs) with allegiances to the groups that led the violence was covered exhaustively in the May 2009 issue of Communalism Combat. Since then, CJP has investigated further and filed applications under the Right to Information Act, especially after a report on NDTV on March 29, 2010 revealed that many of the defence lawyers appearing for the accused in the nine major carnage trials have been appointed special public prosecutors to be paid Rs 12-15,000 a day with a specially amended rule of the Gujarat government’s legal department stating that fees would even be paid for days of adjournment. Hence the state of Gujarat is footing the bill for many lawyers appearing for the key accused in the post-Godhra massacres.

  • Gulberg Society trial: Defence counsel Mitesh Amin is also a special PP, Gujarat. (Amin was paid Rs 25,52,000 by the state between April 1, 2009 and March 31, 2010.)
  • Sardarpura trial: Defence counsel HM Dhruv, BC Barot and JG Rajput (now retired) were appointed special PPs, Gujarat. (HM Dhruv was paid Rs 17,28,000 by the state between April 1, 2009 and March 31, 2010.)
  • Naroda Patiya trial: Defence counsel NM Kikani, BO Sharma, NR Shah, Bharat J. Joshi, MJ Dagli, HC Patel, SR Patel, GS Solanki, KN Thakor and RN Kikani were appointed special PPs, Gujarat.
  • Naroda Gaon trial: Defence counsel Chetan K. Shah, Rohit H. Verma, Rajesh N. Modi, MR Khandar, Nilesh Lodha, HC Patel and PO Sharma were appointed special PPs, Gujarat. (Chetan Shah was paid Rs 2,97,000 by the state between April 1, 2009 and March 31, 2010.)
  • Odh trial: Defence counsel CK Patel, Bharat J. Joshi and Ashwin H. Dhagad were appointed special PPs, Gujarat.
  • In its earliar report submitted to the Supreme Court, the SIT did find Modi guilty of a brazenly communal mindset. It remains to be seen what shape the SIT report/charge sheet will now take.     



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