Protest Petition PART I

322 Pages·2013·1.77 MB·English

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IN THE COURT OF THE 11 METROPOLITAN
MAGISTRATE, AHMEDABAD

MRS. ZAKIA AHSAN JAFRI
V/S
MR. NARENDRA MODI & OTHERS
PROTEST PETITION

ON THE COMPLAINT DATED 8.6.2006 &
AGAINST THE
FINAL REPORT
OF THE
SPECIAL INVESTIGATION TEAM DATED
8.2.2012
(PART I)
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MAIN INDEX TO PROTEST PETITION
Sr.No. Subject Page Nos

Opening Page of the Protest Petition Filed on 15.4.2013
1.
Main Petition:- PART I

2. Main Petition:- PART II
 Main Petition Continues
PLUS
 Compilation of Supreme Court Orders in
SLP1088/2008 & SLP 8989/2013

 Graphic Depicting Distances from Sola Civil
Hospital to the Sola Civil Police Station,
Commissioner of Police, Ahmedabad’s Office,
Airport, Two Crematoriums at Hatkeshwar near
Ramol and Gota; Naroda & Gulberg

 Chart of PCR (Police Control Room Messages)
Showing Aggressive Mobilisation at the Sola Civil
Hospital

 Chart of SIB Messages recording the arrival of the
Sabarmati Express from Godhra at the
Ahmedabad Railway station at Kalupur on
27.2.2002 & Murderous Sloganeering by the VHP
and Others

 Map showing Gujarat-wide Mobilisation through
aggressive Funeral Processions on 27.2.2002,
28.2.2002 & 1.3.2992 onwards & attacks on
Minorities

 Map showing Scale of Violence all over Gujarat in
2002

 Map showing Details of Deaths, Missing Person,
Destruction on Homes, Shrines in 2002

1 – 304 pages
3. ANNEXURES -VOLUME I (Sr Nos 1- 51)
News reports related to Provocations, Sandesh Articles,
SIB Statistics, Important Letters from SIB, Rahul
Sharma, Statistics on Police Firing & Tables Extracted
from the SIB Messages/PCR messages from the SIT
Papers, VHP Pamphlets & Petitioners Letters to
Investigating agency
1 – 162 pages
4. ANNEXURES -VOLUME II (Sr Nos 1–53 including CDs)
Articles & Video Transcripts related to Hate Speeches
made by A-1 Mr Modi and Other Accused & Conspirators
1 – 149 pages
5. ANNEXURES- VOLUME III
Sr Nos 1 – Missing Call Records from SIT Investigation
Papers ( Reference: Annexure IV, Files V and VII)
Sr Nos 2 – Call Records of Sanjiv Bhatt, OP Mathur &
GC Raigar
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Sr Nos 3 – Call Records of A-1 Mr Modi
Sr Nos 4 - How Top Cops Deserted Gulberg
Sr Nos 5 – Location of Powerful Persons & Accused at
Meghnaninagar & Narol, Naroda on 27.2.2002/28.2.2002
Sr Nos 6 – Location Graphs of Accused & Others in
Different Time Slabs on 27.2.2002

6. ANNEXURES – VOLUME IV
Tables of Accused & Powerful Persons (Who Spoke to
Whom)
Individual Cal Records of Accused & Powerful Persons
for 27.2.2002

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This application/objections have been filed pursuant to the order dated 12.9.2011
passed by the Hon‘ble Supreme Court as well as the subsequent order dated
7.2.2013 passed by the Hon‘ble Supreme Court. (Annexure – Compilation
includes all the Orders passed by the Hon’ble Supreme Court in this case).
The Complainant submits that the Closure Report submitted by the SIT requires
to be rejected in too. The said Report concludes that no offence of any nature
has been made out against any of the accused. It is our submission that this
Hon‘ble Court take cognizance against each of the accused in relation to
offences which they have been alleged to have been guilty in the Complaint
dated 8.6.2006.

1. That at the outset, it may be pointed out that the complaint filed by
the petitioner was sent for investigation to the SIT by an order
dated 27.4.2009 passed by the Hon‘ble Supreme Court. After
conducting the investigation, SIT had submitted the reports before
the Hon‘ble Supreme Court. The said complainant‘s case is,
therefore, a separate police case and should, therefore, be treated
as such. This case should not be confused/clubbed with the other
independent and individual cases based on separate F.I.R.s, filed,
prosecuted and even being tried which are related to the separate
incidents related to the Gujarat carnage of 2002. This has been
conclusively clarified by the Hon‘ble Supreme Court in its Order
dated 7.2.2013. The SIT is purposefully trying to confuse the
present case, which is independent of other cases and has to be
dealt with and tried as such, a separate criminal case.

2. The brief facts leading to the filing of final report by the SIT are that
the petitioner/ complainant had filed a complaint before the Police
authorities and when no action was taken, she had approached the
High Court of Gujarat under Article 226 of the Constitution read with
Section 482 of Cr.P.C. that her complaint should be investigated by
the Police/C.B.I. The High Court of Gujarat on 2.11.2007 directed
that the complaint can be treated as a private complaint and,
therefore, declined the reliefs sought for by the petitioner. This
order of the High Court of Gujarat was challenged by the petitioner
before the Hon‘ble Supreme Court and the Hon‘ble Supreme Court,
vide order dated 27.4.2009, directed that the complaint of the
petitioner be investigated by the SIT.
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3. That thereafter, the SIT conducted investigations which resulted
into filing of 4 reports by the SIT which are as follows:
i) 12.5.2010
ii) 17.11.2010
iii) 24.4.2011
iv) 8.2.2012

4. The Hon‘ble Supreme Court finally disposed of the Special Leave
Petition on 12.9.2011 by permitting the petitioner to file a protest
petition in case a final report finding no accused guilty of committing
any crimes is submitted by the SIT.

5. That the SIT not only did not provide, but actively opposed
providing the complete documents collected during Investigation
including of the SIT reports as mentioned in Para 3 above and,
therefore, the petitioner again approached the Hon‘ble Supreme
Court for furnishing the above-said 4 reports. Other documents
were provided through an Order of the Ld. Magistrate dated
10.4.2012. The SIT that had been clearly directed by the Order of
the Hon‘ble Supreme to supply all documents and reports related to
the Investigation in effect resisted and delayed matters to such an
extent that between 8.2.2012, when its final report was filed, and
7.2.2013, when the Hon‘ble Supreme Court finally directed that all
reports should be provided to the Complainant, a year had passed.

6. That by an order dated 7.2.2013, the Hon‘ble Supreme Court
directed that all the reports which were submitted by the SIT be
supplied to the petitioner to enable her to file an effective Protest
Petition/Objections to the final report submitted by the SIT It is in
the above background that the Complainant/Petitioner is submitting
this Protest Petition.

7. That in deciding the Protest Petition the Hon‘ble Court has to
exercise its Independent mind on the Final Report submitted by the
Investigating Agency. The Court is not bound by the conclusions
drawn by the Investigating Agency. The Court has to look at the
material to satisfy itself whether prima facie it is a case for taking
cognizance of the offence. The material has to be looked at, not
from the angle that it is sufficient for conviction but that the material
is sufficient for proceeding with the case. The Court cannot
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adjudicate on the material to find out whether an offence is made
out or not, which is the domain when the trial starts and evidence is
led by the parties.

Vide Judgements (Case Law)

8. That before going into the detailed submissions and factual
aspects, it is necessary to discuss what jurisdiction this Court has in
deciding the protest petition and in accepting or rejecting the final
report submitted by the SIT as an investigating agency. It has been
held by several judgments of the Hon‘ble Supreme Court as well as
the High Courts that at this juncture, the jurisdiction of the learned
Court is very limited. The Court can only examine whether prima
facie, there is reasonable material to take cognizance of the
offence. In case, there is reasonable suspicion, prima facie a case
is made out from the material on record; the court has a duty to
issue process against the accused. The Court cannot look into and
discuss or adjudicate on the material on record to find out whether
an offence is made out or not. That is a domain when the trial starts
and evidence is led by the parties.

9. That the Petitioner/Complainant submits that this Court, while
deciding the protest petition and appreciating the final report
submitted by the SIT, has to look into following amongst other
issues:

(1) Whether on the basis of material which has been submitted by the
SIT, a case of reasonable suspicion/prima facie case is made out
against the accused and thus, requiring cognizance to be taken by
the Court. It is enough if the Court feels that it is necessary to
proceed against the accused and/or whether triable issues are
made out.

(2) Whether the SIT, during investigation, has collected all the relevant
material which it was required to do in conducting fair investigation.

(3) Whether it was within the jurisdiction of the Investigating agency to
adjudicate on the material which came out during the investigation,
i.e., to reject the statement of a particular witness or to accept the
statement of a particular witness in order to come to the conclusion
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that no offence is made out, particularly when the statement made
under section 161 of Cr.P.C. clearly pointed out to reasonable
suspicion/prima facie case of commission of the crime.

(4) Whether a case is made out for directing further investigation
under section 173(8) of Cr. P.C. as the SIT has omitted to consider
the relevant evidence which connects the accused with the crime.

(5) That in case this Court comes to the conclusion that the
investigation done by the SIT was not proper or important
facts/documents/links were not looked into, to favour the accused,
or otherwise, whether a separate investigating agency will be
required for further investigation under section 173 (8) of Cr. P.C.
In that eventuality, this Court has also to decide whether the
prosecution can be controlled by the SIT which has conducted
investigation in such a blatantly biased manner.It is of the utmost
importance that the truth of the allegations against them is
determined by a competent forum. Such a course would subserve
public interest and public morality because the Chief Minister and
Ministers, the civil servants, the Magistracy and the Police of a
State should not function under a cloud. It is imperative, therefore,
that further investigation be conducted in a thoroughly impartial
manner. See: Vishwanath Chaturvedi v. Union of India: (2007)
3 SCALE 714 at 724 para 36 (Writ Petition under Article 32 of the
Constitution) = (2007) SCC.

Background of the Present Complaint

10. Mrs. Zakia Nasim Ehsan Jafri, widow of late Mr Ehsan Jafri,
formerly R/o Gulberg Society, Meghaninagar, Ahmedabad City and
now residing at 25, Alvi Row-house, Rander Road, Surat City,
Gujarat, submitted a complaint dated 08-06-2006 to Mr. P.C.
Pande, Director General of Police, Gujarat State, Police Bhavan,
Gandhinagar, for the registration of FlR u/s, 120(B) IPC read with
302, IPC & sec. 193 read with 114 IPC, 186 & 153-A, 186, 187 IPC
& u/s 6 of Commission of Inquiry Act, The Gujarat Police Act & The
Protection of Human Rights Act, 1951. On 01-03-2007, Mrs. Zakia
Nasim Ehsan Jafri and Citizens for Justice & Peace, through its
Secretary, Ms. Teesta Setalvad filed an application in the Hon'ble
Gujarat High Court bearing Spl. Criminal Application No. 421 of
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2007 vs State of Gujarat, DGP, Gujarat and CBI under Articles
226/227 of the Constitution of India r/w sec.482 Cr.P.C. with a
prayer to pass an order of Writ of mandamus and or appropriate
Writ, directing the DGP to register an FIR and further directing the
same to be investigated by an independent agency, i.e., CBI. The
Petitioners further prayed that pending admission and or final
disposaI of this petition, DGP be directed to register the FIR and
directions issued to CBI for investigation in the interest of justice
and grant such other and further relief as deemed fit in the interest
of justice. The Gujarat High Court rejected the Petition by an Order
dated 2.11.2007. Aggrieved by the Order of the Gujarat High Court,
the Petitioners through SLP 1088/2008 approached the Hon‘ble
Supreme Court for inter alia, registration of an offence and transfer
of investigation to an Independent agency. As mentioned in Para 4
above through an Order dated 27.4.2009, the Hon‘ble Supreme
Court directed that: ―Having heard learned Counsel for the parties
we direct that complaint dated 08.06.2006 which the petitioners
herein claim to have sent to the DGP of Gujarat shall be examined
by the Special Investigation Team (in short ‗SlT') 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."

11. The Hon‘ble Supreme Court of India, in its order dated 15-5-2009 in
Writ Petition (Crl.) No. 109/2003, reconstituted the SIT by inducting
two new Members, namely, Mr. Paramvir Singh, Ex-DGP/Special
Director, CBI and Mr. A.K. Malhotra, former DIG, CBI and by
relieving Mr. C.B. Satpathy, Ex-DGP, as per his request. The Govt.
of Gujarat issued a Notification regarding the reconstituted SIT on
27-05-2009. It is recalled that the SIT was originally constituted vide
order dated 26-03-2008 of the Hon‘ble Supreme Court of India
whereby 9 Godhra related cases were ordered to be further
investigated by the SIT, which was to consist of Dr. R.K. Raghavan,
Ex-Director, CBI (Chairman), Mr. C.B. Satpathy, Ex-DGP, Ms.
Geetha Johri, then IGP (now Addl. DGP (Convener), Mr. Shivanand
Jha, then IGP (now Addl. DGP) and Mr. Ashish Bhatia, IGP. In their
order dated 01-05-2009 in Writ Petition (Crl.) No.109 of 2003, the
Hon'ble Supreme Court of India had directed that the SIT would
continue to function and the Court entrusted to the SIT a larger role
in the supervision of trials/prosecutions, witness protection, etc. and
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to carry out any investigations that were yet to be completed or any
further investigation that may arise in the course of the trials.

12. The widespread violence that engulfed Gujarat spreading to 19 of
the state‘s 25 districts – 14 very seriously - post the tragic burning
to death of 59 persons in the S-6 Coach of the Sabarmati Express
is perhaps the worst ever record of reprisal communal violence.
Since 2002 when the National Human Rights Commission filed its
Interim and Final reports and 2003 and 2004 when the Hon‘ble
Supreme Court first pulled up the state government for absence to
‗observe its Raj Dharma‖ and accused it of criminal negligence
―The Neros in Gujarat fiddled as Gujarat burned‖ (Zahira Habibullah
Shaikh v/s State of Gujarat, April 12 2004 Supreme Court) serious
allegations of top level criminal conspiracy in masterminding the
violence have been made against the chief functionaries of the
government. On 8.6.2006 a Complaint was sought to be filed (Mrs
Zakia Ehsan Jafri) and this complaint that is the core of this Protest
Petition lays down the basis for the Criminal Conspiracy alleged.
The NHRC concluded in its Report dated 31.5. 2002 that ―there
was a comprehensive failure of the State to protect the
Constitutional rights of the people of Gujarat‖. The NHRC in its
order dated 31st May,2002 has also noted that its special
representative had ― observed in a Report to the Commission dated
24th April 2002 that ― almost 90% of those arrested even in heinous
offences like murder, arson, etc have managed to get bailed out as
soon as they were arrested.‖ Reports have also appeared in the
media that those who have been released on bail were given warm
public welcomes by some political leaders. This is in sharp contrast
to the assertion made by the State Government in its Report of 12th
April 2002 that ―bail applications of all accused persons are being
strongly defended and rejected.‖

Incidents specified in Complaint– pp. 138 to 140, (para 13)

Incidents widespread in 19 of the State‘s districts (coloured
maps)

Naroda Patia case: Naroda P.S. Cr.No.I 100/02: 96 Killed,
including women and children. Naroda Patiya (where 96
men women & children were massacred and a number of
women were raped, killed and burnt.
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P.I. Mysorewalla & the SRPF Men present provided no
assistance to the victims and instead taunted them & forced
them towards the rioting mob & death.

Gulberg Society case: Meghaninagar P.S. Cr.No.I 67/2002:
His death not even condoled in a reference in the House
(State Assembly). Totally 69 persons killed. From the 28th
morning rampaging mobs of those associated with the
Bajrang Dal, VHP, BJP attacked Muslim localities, houses
and business establishments. Muslim men were killed &
beaten and women were raped & killed. Gory murders,
rapes and molestations took place at Gulberg Society
Chamanpura, Meghaninagar (where 69 persons including Ex
MP Jafri were killed & 10 – 12 women were raped in a mob
attack which lasted for 7 hours - till 4.30 p.m. Jafri had made
numerous calls for help to the Commissioner Mr. PC Pande,
to the Home Minister & the Chief Minister. At about 2.30 Jafri
was stripped, paraded naked & cut into pieces. Police stood
by and did not even try to stop the rioters.

The Chief Minister was also dismissive of Mr Jafri‘s calls for
help – and in fact later attributed the violence to firing by Mr
Jafri. Minimal Police intervention took place only after 4.30
p.m.

Post March 1 2002 : Panchmahal Dailol where a number of
Muslims attempting to flee were killed & women raped.

Mehsana where 14 Muslims were killed in Visnagar & 33
electrocuted in Sardarpur, Sardarpura Village, Mehsana
District, Visnagar P.S. Cr.No.I 46/2002: 33 persons killed.

Best Bakery case, Vadodara: 14 persons burnt alive –
accused acquitted – many convicted after the re-trial and
transfer to Mumbai (2006).

Kidiyad case, Sabarkantha District: 60–65 persons burnt
alive.
Odh Village, Anand District: 27 persons burnt alive on March
1. Complainants said only 4 deaths confirmed and bodies of
other victims disposed of at unknown location. Two FIRs
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