Am­i­cus Re­port on Modi Cre­ates Public Out­cry

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AM­I­CUS CU­RIAE Raju Ra­machan­dran’s re­port cri­tiquing the ev­i­dence col­lected and con­clu­sions drawn by RK Ragha­van’s Spe­cial In­ves­ti­ga­tion Team ( SIT) on Naren­dra Modi’s role in the 2002 Gu­jarat ri­ots is fi­nally out in the public do­main. As first re­ported by TEHELKA in its 11 Fe­bru­ary story ( What the am­i­cus re­ally told the Supreme Court: Pros­e­cute Modi) that Ra­machan­dran had rec­om­mended Modi’s crim­i­nal pros­e­cu­tion for of­fences such as pro­mot­ing re­li­gious en­mity, do­ing acts prej­u­di­cial to na­tional in­te­gra­tion and wan­tonly dis­obey­ing law, the re­port blows craters in the SIT’S the­ory that there was no pros­e­cutable ev­i­dence.

Most im­por­tantly, the am­i­cus has dis­missed SIT’S claim that IPS of­fi­cer San­jiv Bhatt is an un­re­li­able wit­ness. He has also ex­posed the seem­ingly bizarre and il­log­i­cal in­ter­pre­ta­tions drawn by the SIT. For in­stance, what the SIT finds as non-pros­e­cutable ev­i­dence, the am­i­cus thinks it’s enough to com­mit the case for a crim­i­nal trial. He points out the self-con­tra­dic­tory po­si­tions the SIT has taken in its bid to close the case against Modi: It has used one set of un­re­li­able wit­nesses (who have given ev­i­dence in favour of Modi) to dis­credit an­other set of wit­nesses (who gave ev­i­dence against him).

Also, what the SIT finds as ev­i­dence suit­able for only de­part­men­tal pro­ceed­ings against cer­tain po­lice of­fi­cers, the am­i­cus finds them sub­stan­tive enough to launch crim­i­nal pro­ceed­ings against the erring of­fi­cials. The SIT be­lieves that se­nior IPS of­fi­cers PB Gon­dia and MK Tan­don — who de­lib­er­ately chose to stay away from Gul­berg So­ci­ety, got bo­gus FIRS of communal vi­o­lence reg­is­tered at other rel­a­tively peace- ful lo­cal­i­ties (to jus­tify their ab­sence from Gul­berg) and paved the way for the mob to un­leash the car­nage — only de­serve de­part­men­tal ac­tion. The am­i­cus be­lieves this was no or­di­nary act of crim­i­nal neg­li­gence as it re­sulted in the loss of many in­no­cent lives. But the SIT has cho­sen to ig­nore his ob­ser­va­tions.

The SIT probe against Modi and his gov­ern­ment was or­dered by the Supreme Court in 2009 while hear­ing a pe­ti­tion filed by Teesta Se­tal­vad’s Cit­i­zens for Jus­tice and Peace and Zakia Jafri, the widow of slain Congress leader Eh­san Jafri, who along with dozens of other Mus­lims, were hacked and burned to death dur­ing the ri­ots. Zakia had made 32 spe­cific al­le­ga­tions, the most se­ri­ous be­ing that Modi had given in­struc­tions to the then DGP, chief sec­re­tary and other se­nior of­fi­cials to al­low Hin­dus to freely vent their anger at Mus­lims for the Sabar­mati Ex­press car­nage. This in­struc­tion was al­legedly given at a meet­ing held at the CM’S bun­ga­low in Gand­hi­na­gar on 27 Fe­bru­ary 2002.

In 2010, Bhatt, who was posted as a DCP with the state In­tel­li­gence Bureau dur­ing the ri­ots, ap­peared be­fore the probe and said that he was present at the above-men­tioned meet­ing in which Modi had given il­le­gal in­struc­tions to se­nior state func­tionar­ies. Ac­cord­ing to him, Modi had ut­tered these words: “There is a lot of anger in the peo­ple. This time, a bal­anced ap­proach against Hin­dus and Mus­lims will not work. It is nec­es­sary that the anger of the peo­ple is al­lowed to be vented.”

But the SIT claimed that Bhatt was not a re­li­able wit­ness on the fol­low­ing grounds:

* Other se­nior of­fi­cers present in the meet­ing have not cor-

rob­o­rated Bhatt’s state­ment

* His si­lence for more than nine years with­out proper ex­pla­na­tion ap­pears to be sus­pi­cious

* There were a num­ber of de­part­men­tal in­quiries pend­ing against Bhatt and thus he had an axe to grind against the Modi gov­ern­ment

But, af­ter weigh­ing the SIT’S ar­gu­ments, the am­i­cus has reached a di­a­met­ri­cally op­po­site con­clu­sion: “I dis­agree with the SIT’S con­clu­sion that Bhatt should be dis­be­lieved at this stage it­self. I’m of the view that Bhatt needs to be put through the test of cross-ex­am­i­na­tion, as do the oth­ers who deny his pres­ence. I also find it dif­fi­cult to ac­cept the con­clu­sion that Bhatt’s state­ment is mo­ti­vated be­cause he has an axe to grind.”

THE AM­I­CUS’ re­port raises ques­tions about var­i­ous le­gal in­ter­pre­ta­tions made by the SIT. He says that in the face of the fact that the SIT has no ev­i­dence to prove that Bhatt was present at a place other than Modi’s res­i­dence on the night of 27 Fe­bru­ary 2002, the only log­i­cal re­course would be to test the ve­rac­ity of the claims made by Bhatt and the counter-claims of Modi and his team in a court.

“It is Bhatt’s word against the word of other of­fi­cers, se­nior to him. The SIT has cho­sen to be­lieve the se­nior of­fi­cers,” says the am­i­cus. Ra­machan­dran has high­lighted the SIT’S con­tra­dic­tory stand with re­gard to var­i­ous wit­nesses. He has noted that the same set of wit­nesses used to dis­credit Modi were dis­be­lieved by the SIT it­self as most of them were awarded good post-re­tire­ment as­sign­ments by the chief min­is­ter.

Sim­i­larly, the am­i­cus has re­fused to ac­cept the SIT’S ar­gu­ments with re­gard to the pend­ing in­quiries against Bhatt and the fact that he re­vealed the al­leged ut­ter­ances made by Modi af­ter a gap of nine years. Bhatt’s ex­pla­na­tion that he was an in­tel­li­gence of­fi­cer and would make a state­ment only when he was un­der a le­gal obli­ga­tion, is ex-fa­cie ten­able, sug­gests Ra­machan­dran. Then the am­i­cus has laid out in de­tail the cir­cum­stances un­der which the meet­ing was called by Modi and has in­ferred that in the light of the given facts, it would not be proper to dis­be­lieve Bhatt at this stage of the probe it­self.

He has em­pha­sised upon the pres­ence of two min­is­ters un­con­nected with the home port­fo­lio in a po­lice con­trol room as an in­crim­i­nat­ing fact that fur­ther lends cre­dence to the al­le­ga­tion of a larger con­spir­acy be­hind the ri­ots. He has con­tended that what the law re­quires is the ex­is­tence of some ma­te­rial that sup­ports the al­le­ga­tion made by a com­plainant to ini­ti­ate crim­i­nal pro­ceed­ings and sug­gested that the case against Modi has passed this test and by not act­ing as per law, the SIT has in a way pre­judged the case in favour of Modi.

“In my opin­ion, the of­fences that can be made out against Shri Naren­dra Modi, at this prima fa­cie stage, are of­fences in­ter alia un­der Sec­tions 153A (1) (a) & (b), 153B (1) (c), 166 and 505 (2) of the IPC,” the am­i­cus’ re­port con­cludes.

He ex­poses how the SIT has taken self-con­tra­dic­tory po­si­tions in its bid to close the case

First look Tehelka had scooped the am­i­cus cu­riae’s re­port in the 11 Fe­bru­ary 2012 is­sue

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