PROSECUTE MODI Interim report

The interim report by amicus curiae Raju Ramachandran placed before the Supreme Court, January 20, 2011

Gujarat 2002; An ongoing rampage home, government of . The subsequent investigation has been conducted by another officer, namely Shri Himanshu Shukla, DCP, and supervised by Shri YC Modi, IGP, and member, SIT. A further report has been given to this hon’ble court on 26.11.2010, recommending depart- mental action against the police of- ficials. 5. I had two meetings with Shri AK Malhotra and Shri YC Modi, in December 2010 and January 2011. I have had one meeting with Ms Teesta Setalvad and Ms Aparna Bhat. They have submitted a number of docu- ments which have also been exam- ined by me to the extent possible. Shri RB Sreekumar, former DGP, Gujarat, has also submitted some documents which have been consid- ered. 6. The major allegation in the complaint made by the complain- ant relates to the alleged involve- ment of Shri , the Note by the amicus curiae chief minister of the state of Gujarat, in the communal riots which took place in the city of (and elsewhere) 1. This hon’ble court vide order dated 27.04.2009 di- immediately after the Godhra incident. This is the first head rected the SIT to “examine” the complaint submitted by under which some of the allegations can be classified. The the petitioner on 08.06.2006. The SIT was to “look into the second head of allegations relate to the alleged role of the matter” and give its report to this hon’ble court. police officials at the time of the riots, the faulty investi- 2. Pursuant to the aforesaid direction, Shri AK Malhotra, gation of the riot cases and the faulty prosecution of the former DIG, CBI, and a member of the SIT, has examined accused. There are a number of other allegations which have more than 160 witnesses and gone through a number of been classified by me as falling in the third category. documents as made available to him, He has given his find- 7. Though the SIT has concluded that there is no mate- ings qua the 32 allegations made by the complainant. The rial to indicate that Shri Narendra Modi, the chief minister, chairman, SIT, has concurred with the findings of Shri had issued any instructions to the officers on 27.02.2002 Malhotra. to permit the Hindus to give vent to the anger of the ma- 3. The inquiry conducted by Shri AK Malhotra was in the jority community, there are a number of circumstances which nature of a preliminary inquiry in which he has recorded prima facie indicate that the matter requires a detailed in- statements of witnesses (which are signed by the witnesses) vestigation to examine the role of Shri Modi immediately and also collected a number of documents. after the Godhra incident to find out if there is any culpa- 4. In his report dated 12.05.2010, Shri AK Malhotra has bility to the extent that a message was conveyed that the inter alia recommended further investigation under Section state machinery would not step in to prevent the commu- 173(8), CrPC, against (1) Shri MK Tandon, the then joint nal riots. Some of the circumstances which justify a more commissioner of police, Ahmedabad city; (2) Shri PB Gondia, detailed investigation into this aspect have been separately the then deputy commissioner of police, Ahmedabad; and enumerated in Chart A enclosed herewith (pertaining to the (3) Shri Gordhan Zadaphiya, the then minister of state for first head).

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8. It would be appropriate if this aspect of the matter is place to prevent the riots. The movement of Shri Modi and examined by way of further investigation under Section the instructions given by him on 28.02.2002 would have 173(8), CrPC, in the pending Gulberg Society and/or Naroda been decisive to prove that he had taken all steps for the Patiya cases. The SIT may consider all evidence, including protection of the minorities but this evidence is not there. but not limited to the statement of Shri , the Neither the chief minister nor his personal officials have then deputy commissioner (intelligence), and the records stated what he did on 28.02.2002. Neither the top police of the state government at the relevant time. Since a statu- nor bureaucrats have spoken about any decisive action by tory investigation would confer powers under the CrPC to the chief minister. the investigating officer, the investigation would be effec-  It may not be correct to rule out the presence of Sanjiv tive. I am fully conscious that nearly nine years have passed Bhatt, IPS, DC (intelligence), since ADGP (intelligence) Shri since the incident but the inquiry report of the SIT in re- GC Raiger was not available. There is no reason for him to spect of the allegations throws up a number of unanswered make a wrong statement. He was willing to make a state- questions. It would also appear that Ms Setalvad wanted to ment if he was protected from legal repercussions of dis- give further evidence which could not be looked into by closing what transpired in the meeting. the SIT, as the report was under preparation. These could  It is difficult to believe that when the chief minister also be looked into by the SIT. came back after the Godhra trip, no minister was present at 9. In so far as the role of certain police officials and his residence. Hence it may not be totally unbelievable that public prosecutors is concerned, the SIT has found the con- Shri Haren Pandya was present. Shri Haren Pandya is unfor- duct of certain police officers and public prosecutors to be tunately dead but the statements made by late Shri Haren deficient. The recommendations of the SIT and my sugges- Pandya to Justice PB Sawant (retd) and Justice H. Suresh tions are contained in Chart B appended to this note (per- (retd) can be used even if his statement has not been for- taining to the second head). mally reproduced in writing by the Citizen’s Tribunal. 10. The other allegations which are  It has also been brought out found to be proved (or not proved) by that an inquiry was made from the the SIT, and my suggestions to this It would be impossible to chief minister’s office as to the hon’ble court in relation to those find- get anyone present in the identity of the minister who had ings, are enclosed in Chart C appended meeting on February 27, deposed before the Citizen’s Tribu- to this note (pertaining to the third 2002 to speak against Modi, nal and that the State Intelligence head). Bureau had verified the identity as especially the bureaucracy that of Shri Haren Pandya. This also Chart A: Observations on and police officials… gives some corroboration to the findings of the SIT Neither the top police nor fact that the chief minister’s office bureaucrats have spoken was uncomfortable with the disclo- Allegations (Complainants) about any decisive action by sure made by an unidentified min- I. & IV. A statement was made by ister to the Citizen’s Tribunal. Shri Narendra Modi on 27.02.2002 in the chief minister  The statement of Shri RB a meeting in his residence instructing Sreekumar cannot be discarded as senior officers to allow the Hindus to give vent to their hearsay, in the light of Section 6 of the Evidence Act. anger. This is also supported by late Shri Haren Pandya.  Another aspect is the fact that Vishwa Hindu Parishad Findings (SIT) (VHP) general secretary, Jaideep Patel, and Shri Modi were  1. None of the officers that attended the meeting on at Godhra on 27.02.2002. The statement of Jaideep Patel 27.02.2002 have confirmed the alleged statement made by that he did not meet Shri Narendra Modi at Godhra does not Shri Narendra Modi (p. 19); 2. The statement of Shri RB inspire confidence. This has to be examined, as the mamlatdar Sreekumar is hearsay (p. 19); 3. Sanjiv Bhatt, DC (intelli- [executive magistrate] would not have handed over the dead gence), was not present at the meeting (p. 19); 4. None of bodies to a non-government person i.e. Jaideep Patel until the cabinet ministers, including Shri Haren Pandya, attended and unless somebody very high told him to do so. the meeting on 27.02.2002. Testimony of Shri Haren Pandya before the Citizen’s Tribunal is unreliable (p. 19). Allegations Observations (Amicus Curiae) V. That cabinet ministers Shri IK Jadeja and Shri Ashok  It would be impossible to get anyone present in the Bhatt were positioned in the DGP’s office and Ahmedabad meeting on 27.02.2002 to speak against Shri Modi, espe- city control room on 28.02.2002. cially the bureaucracy and police officials. Findings  The other circumstances would also have to be taken  The SIT concludes that this was a “controversial deci- into account. There is nothing to show that the chief min- sion” taken by the government to place two ministers in ister intervened on 28.02.2002 when the riots were taking the DGP’s office and Ahmedabad city control room. How-

COMMUNALISM COMBAT 19 APRIL – MAY 2012 PROSECUTE MODI ever, the SIT concludes that there is no evidence that the Observations two ministers passed on any instructions to the police to  This is one of the circumstances which indicate that deal with riots in a particular manner. Therefore the allega- the hon’ble chief minister had not taken enough steps to tion is only partially proved as per the SIT (p. 32). ensure that riots in Ahmedabad city were immediately con- Observations trolled by his direct intervention.  The positioning of two cabinet ministers having noth- ing to do with the home portfolio in the office of the DGP Allegations and the state police control room respectively is another XII. It is alleged that on 01.03.2002 Shri Narendra Modi circumstance which reflects that there was a direct instruc- said in a television interview that the reaction of the Hin- tion from the chief minister. Though Shri Jadeja says that he dus was due to the action by the Muslims, which seems to had gone to the DGP’s office on instructions of Shri Gordhan justify the riot. Zadaphiya, MoS (home), this is highly unbelievable. It is ob- Findings vious that the chief minister had positioned these two min-  The SIT has come to the conclusion that the reaction isters in highly sensitive places, which should not have been of the chief minister to violence at Gulberg Society and done. In fact, these two ministers could have taken active Naroda Patiya was not serious. However, the SIT has con- steps to defuse the riots but they did nothing, which speaks cluded this would not be sufficient enough to make out a volumes about the decision to let the riots happen. It does case against Shri Modi (p. 69). not appear that these two ministers immediately called the Observations chief minister and told him about the situation at Gulberg  The observation of Shri Modi in a television interview and other places. on 01.03.2002 clearly indicates  The SIT merely relied upon that there was an attempt to jus- the statements of the police of- It is obvious that the chief tify the violence against the mi- ficers to conclude that these two minister had positioned these two nority community. This indicates ministers did not give any instruc- ministers (IK Jadeja and Ashok a certain approach. The statement tions to the police department but made by Shri Modi cannot be it appears highly unlikely that two Bhatt) in highly sensitive places, seen in isolation. It has to be cabinet ministers of the govern- which should not have been seen in conjunction with other ment of Gujarat would have not done… these ministers could facts mentioned hereinabove given some kind of directions when have taken active steps to defuse which provides sufficient justi- the chief minister had directed fication for a detailed investiga- them to remain present. the riots but they did nothing, tion in the matter.  It is obvious that the two which speaks volumes about the ministers were fully aware of the decision to let the riots happen Chart B: Observations on developing situation in Gulberg findings of the SIT Society, Naroda Patiya, etc in Ahmedabad city. They were duty-bound to convey the situation to the chief minister Allegations and were required to do everything possible to save loss of VII. The allegation is that 13 IAS/IPS officers were re- lives. If the stand of the chief minister, that these two min- warded for their support during the post-Godhra riots. isters were positioned so as to effectively control the law Findings and order situation, is correct then there would have been a  The finding of the SIT is that there was nothing to far quicker action to control the riots in Gulberg Society indicate that the 13 officers had been rewarded with postings and Naroda Patiya at least. for their support to the chief minister. However, at page 44  No tangible action seems to have been taken by the to 49, the SIT had concluded that the conduct of Shri MK police high-ups in the police department, namely the com- Tandon, the joint commissioner of police, Sector II, missioner of police, to control the riots at Gulberg Society. Ahmedabad, was not satisfactory. It is also mentioned that Gulberg Society is not very far away from the office of the he received calls from Jaideep Patel and Mayaben Kodnani, commissioner of police, Ahmedabad. who are accused in the Naroda case. Similarly, the SIT had concluded that the role played by Shri PB Gondia, DCP, Allegations Zone IV, was suspicious and he also received calls from XI. The allegation is that Shri Narendra Modi did not Mayaben Kodnani and Jaideep Patel. In the subsequent re- visit the riot-affected areas of Ahmedabad immediately port dated 26.11.2010, it has been advised that depart- though he visited Godhra on the day of the incident. mental action be taken against them. Findings Observations  The SIT has come to the conclusion that the action of  The major massacres in Ahmedabad city took place in the chief minister appeared to be discriminatory (p. 67). Gulberg Housing Society, in Naroda Patiya and Naroda Gaon.

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Hence the actions of Shri MK Tandon, the joint commis-  The recommendations of the SIT that the government sioner of police, Sector II, and that of PB Gondia, the DCP, of Gujarat should set up a committee perhaps needs to be Zone IV, cannot be termed as mere failure to discharge their reconsidered. It would be appropriate if these two cases are duties, as both the officers were not present at any of these examined by the SIT so as to fix responsibility on the inves- places despite the fact that they were fully aware of the pos- tigating/prosecuting officials and suitable directions can sibility of loss of lives. It appears that if these officers had thereafter be issued by this hon’ble court to take action been present at the spot or had taken effective steps in time, either under the Indian Penal Code (depending on whether the massacres could have been avoided and lives could have it reveals offences under the IPC) or departmental action for been saved. A case of criminal negligence is made out against misconduct. The acts of the investigating/prosecuting agen- these two officers. Further, they have received calls from ac- cies may attract Section 201 of the IPC. cused who are facing trial in the Naroda massacre i.e. Mayaben Kodnani and Jaideep Patel. Therefore it does not appear to be Allegations a simple case of mere dereliction of duty. Section 304A, IPC, X. The allegation is that the investigations were partial would be squarely attracted in such a case. in nature and there was prejudice against the riot victims.  In so far as promotion of other IAS and IPS officers is Findings concerned, the view taken  The finding of the SIT by the SIT seems to be ac- is that supplementary ceptable. charge sheets have been filed in the Gulberg Soci- Allegations ety case and Naroda Patiya IX. The allegation is case but that by itself can- that the government of not be a reason to hold that Gujarat has been seriously investigations were con- indicted by this hon’ble ducted in a partial manner court due to fresh inves- (p. 67). tigation in the Bilkees Observations Bano case by the CBI and  The grievance of the retrial of the Best Bakery petitioner may not survive case outside the state of after the SIT has conducted Gujarat. fresh investigations but it Findings would be unjust to spare  The SIT has con- those people who conducted cluded that the trials in partisan or negligent inves- both the cases are over. tigation. Hence this issue Some accused have been needs to be addressed. The convicted and some ac- role of the officials in the cused have been acquit- Crime Branch, especially DCP ted and the appeals are Vanzara and ACP Chudasama pending before the high needs to be inquired into, es- court. pecially in light of the state-  The SIT has recom- Jaideep Patel and : Spearheads of the Naroda massacres ment of Rahul Sharma, DCP, mended that the matter requires to be handled by the state control room, Ahmedabad. To that extent, the finding of the SIT of Gujarat to take departmental action for major penalty is not acceptable. against K. Kumaraswamy, Jt CP, Baroda city, and Ramjibhai Pargi, former ACP [assistant commissioner of police], in light Allegations of observations of the learned sessions judge, Greater Bom- XV. The allegation is that pro-VHP lawyers were appointed bay. It also recommends setting up of a committee by the as public prosecutors which had an adverse effect on the government of Gujarat to fix responsibility on the officials trial of the riot accused. (p. 238). Findings Observations  The finding of the SIT is that though the political  The investigative agencies let off the accused in the affiliation of the advocates weighed with the government Bilkees Bano case. If the CBI had not stepped in, the ac- in their appointment as public prosecutors, there is no spe- cused would have gone unpunished. Similarly, in the Best cific allegation in showing favour by them to any of the Bakery case, it appears that the prosecution was done in a accused persons involved in the riots either at the time of shoddy manner to protect the accused. grant of bail or during the trial.

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Observations tral Industrial Security Force] firing. It is not clear  The issue may not survive because of the intervention why the CISF could not reach earlier though it had been by this hon’ble court whereby public prosecutors have been sent at 1:45 p.m. It is not clear why the other officers, appointed in an independent manner. However, this may namely GD Solanki, DySP [deputy superintendent of po- be required to be looked into further in light of the subse- lice], etc, could not reach Gulberg Society on time. It quent letter of Ms Teesta Setalvad (p. 244). appears that nothing was done by the police personnel present at Gulberg Society and Naroda Patiya to dispel Allegations the gathering mob. It would appear that the mob was XXI & XXII. These allegations relate to inaction against being permitted to gather at these two places. Hence senior police officers, as they did not carry out proper in- there is substance in the allegation of police inaction. vestigation of riot-related cases, especially the Bilkees Bano  It is not clear what action was taken by Shri MT Rana, rape case. then ACP, G Division, who was present at Naroda Patiya, to Findings prevent the mishap from happening. This aspect also needs  The SIT has stated that the allegations were vague to be looked into. and general and there was nothing against any specific of- ficer. It is further stated that the CBI had not recommended Specific recommendations for the SIT any action against Shri Jadeja, SP, Dahod, in the Bilkees 1. Shri MK Tandon and Shri PB Gondia be prosecuted Bano case (p. 101). under Section 304A, IPC. Observations 2. The SIT may examine the role of the investigating  In so far as Shri Jadeja is concerned, the documents agency in the Bilkees Bano rape case and make recom- relating to the Bilkees Bano case need to be scrutinised by mendations to this hon’ble court, whether it reveals com- the SIT. The basis on which the CBI has concluded that no mission of any criminal offence departmental action is required or misconduct. to be taken against Mr Jadeja has The major massacres in 3. The SIT may be directed to to be examined before any con- look into the role of the Crime clusion is drawn. Ahmedabad city took place in Gulberg Housing Society, in Naroda Branch officers, namely DCP Vanzara and ACP Chudasama as Allegations Patiya and Naroda Gaon. The to their role in the investigation XXIII. The allegation is that actions of the then joint of the Gulberg Society and the CD relating to telephonic calls Naroda Patiya cases. of BJP leaders and police officers commissioner of police, MK 4. The SIT may examine the were not looked into by the in- Tandon, and then DCP, PB Gondia, vestigating officers of Gulberg So- cannot be termed as mere failure role of the prosecuting agency ciety and Naroda Patiya. to discharge their duties in the Best Bakery case and rec- Findings ommend suitable action against  The SIT has found that Shri those who are responsible. Tarun Barot, the investigating officer of the case and Shri 5. The SIT may look into the role of police officials in GS Singhal, ACP, Crime Branch, intentionally did not exam- the Gulberg Society and Naroda Patiya cases (apart from ine the cellphone records though it was available to them those who are already facing charges). and therefore major penalty departmental proceedings should be initiated against them (105). Specific recommendations in relation to the Observations government of Gujarat  The government of Gujarat may be directed to take 1. Departmental action, as suggested by the SIT, be taken departmental actions against these two officers immedi- against K. Kumaraswamy, the then Jt CP, Baroda city, and ately within a time-bound manner. Ramjibhai Pargi, former ACP. Allegations 2. As recommended by the SIT, departmental action XXV. The allegation is that the police at Gulberg So- be taken against Shri Tarun Barot, inspector, and Shri GS ciety and Naroda Patiya did not take action and acted as Singhal, ACP, Crime Branch, for faulty investigation of mute spectators to the acts of lawlessness. Real culprits the riots cases. were not arrested and no preventive action was taken. Chart C: Observations on findings of the SIT Findings  The SIT has found this allegation to be incorrect. Allegations Observations II. Alleged decision of the chief minister to transport  Shri MK Tandon, Jt CP, said that he reached dead bodies from Godhra to Ahmedabad with a view to pa- Gulberg Society at 4:00 p.m. and ordered CISF [Cen- rade them.

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Findings Observations  The SIT has concluded that the decision was taken with  It does not appear that any of the six officers were a view that the train was heading towards Ahmedabad. There- deliberately posted out with a view to facilitate place- fore the relatives of the deceased would be residents of ment of pliable officers so as to encourage the riots. Ahmedabad and nearby areas and it would be easy for them Hence we may accept the SIT’s recommendations. There to collect the bodies. The dead bodies were not paraded as are three instances which are far too remote to lead to alleged. Therefore the allegation is not established (p. 23). any conclusion. Observations  The findings of the SIT appear to be justified. Allegations VIII. The allegation is that no follow-up action was taken Allegations up by the Gujarat government on the reports sent by Shri III. It is alleged by Shri RB Sreekumar that there were a RB Sreekumar. number of verbal instructions given by the chief minister Findings which were illegal.  The finding of the SIT is that the file of the state Findings government relating to the concerned subject had not  It is concluded by the SIT that the allegation of Shri been produced and therefore it was not clear how the RB Sreekumar is based government dealt with upon the entries made the letters of Shri RB by Shri Sreekumar in Sreekumar. The SIT fur- his register which was ther observes that from a personal register the evidence of wit- maintained by him in nesses, it is incorrect to which he allegedly re- say that the letters of corded the illegal in- Shri RB Sreekumar were structions received by not acted upon by the him. The SIT had stated government (p. 60). that there is doubt Observations about the genuineness  The findings of the of the entries made by SIT may be correct. The Shri Sreekumar in the letters of Shri RB register, in view of the Sreekumar were written fact that this register after the riots had got over. was revealed for the Secondly, the contents of first time in 2005 (af- these letters appear to be ter the supersession of of general nature. The sub- Shri Sreekumar by the sequent developments government) and there have supported the find- is further no corrobora- ings of the SIT that some tion of the statements action was taken by the made by Shri RB government. Hence we Sreekumar from any may accept the SIT’s rec- other source (p. 28). “Service, Protection, Peace”: Belying the badge ommendation. Observations  It may not be possible to prove the so-called illegal Allegations instructions in absence of any other material except the XIII. The allegation is that Shri Narendra Modi did not statements of Shri RB Sreekumar himself. Hence though the give a direction declaring the bandh called by the VHP on finding of the SIT be accepted, it may not be appropriate to 28.02.2002 illegal. say that the register is motivated. Findings Allegations  The SIT has found that the bandh was not declared VI. The allegation is regarding the transfer of six police illegal by the government of Gujarat and hence the allega- officers by the hon’ble chief minister during the thick of tion is proved. the riots to facilitate placement of pliable officers. Observations Findings  This issue does not have a very material bearing. Noth-  The finding of the SIT is that this allegation could not ing would turn upon the fact whether the bandh was de- be proved (p. 33-36). clared illegal or not.

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Allegations puted to tutor the witnesses who were to depose before the XIV. The allegation is that there was undue delay in de- Nanavati Commission. ployment of the army. Findings Findings  The SIT has found this allegation is not established, as  The SIT has come to a conclusion that there was no the version given by Shri RB Sreekumar is motivated and undue delay in deployment of the army. cannot be relied upon (p. 97). Observations Observations  The factual records are the matter of investigation and  The allegation is found not proved by the SIT, which if the records are correct then the SIT finding may also be recommendation may be accepted. It may not be justified correct. to say that the version of Shri Sreekumar is motivated.

Allegations Allegations XVI. The allegation is that police officials were not trans- XXIV. The allegation is that the Gujarat government did not ferred until the arrival of Shri KPS Gill. provide conducive atmosphere for rehabilitation of riot victims. Findings Findings  The SIT has found this allegation is not correct.  The SIT has found this allegation is not correct, as it Observations believes that the government did everything for rehabilita-  The finding of the SIT may be accepted. tion (p. 117). Observations Allegations  This conclusion may be ac- XVII. The allegation is that no The SIT may examine the role cepted. action was taken against the media of the investigating agency in for publishing communally inciting the Bilkees Bano rape case and Allegations reports. the role of the Crime Branch XXVI. This allegation relates to Findings non-preparation of minutes of  The SIT has found the allega- officers, namely DCP Vanzara meetings. tion to be true. and ACP Chudasama as to their Findings Observations role in the investigation of the  The SIT has found that in the  Action should have been taken Gulberg Society and Naroda Gujarat government, no minutes of against the media but due to lapse Patiya cases meetings are prepared in case of law of more than eight years, it is not and order review meets. advisable to pursue this matter any further. Observations  Since the minutes of the meetings have not been pre- Allegations pared, nothing would come out in further investigation. In XVIII. This allegation relates to misleading reports sub- any event, the minutes of the meetings would never be pre- mitted by the state home department regarding normalcy pared to implicate any minister/official directly or indi- in the state so as to persuade the Election Commission to rectly. Therefore this issue can be closed. hold early elections. Findings Allegations XXVII. This allegation relates to not taking action against  The SIT has concluded that the allegation is not con- officers for filing incorrect affidavits before the Nanavati clusively established in view of the fact that the elections Commission. were subsequently held within three-four months, in De- Findings cember 2002, and passed off peacefully.  The SIT has concluded that this matter has to be dealt Observations with by the Nanavati Commission which has still to submit  This issue may not survive any further and it would not its report. serve any purpose to examine this issue in detail. Hence it Observations is recommended that this issue be dropped.  The view taken by the SIT appears to be correct.

Allegations Allegations XIX & XX. That Shri GC Murmu, home secretary, was de- XXVIII. It is alleged that the review of post-trial cases

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