Legal challenge

Sanjiv Rajendra Bhatt's affidavit questions the SIT's objectivity in investigating the Chief Minister's role.

in New Delhi

THE affidavit filed by Sanjiv Rajendra Bhatt, Principal of the State Reserve Police Training Centre, Junagadh, Gujarat, on April 14 in the Supreme Court raises questions about its legal significance and relevance in nailing Gujarat Chief Minister Narendra Modi's alleged connivance in the carnage against Muslims in the aftermath of the Sabarmati Express train tragedy in Godhra on February 27, 2002. Bhatt has brought on record certain aspects of the investigation done by the Special Investigation Team (SIT) appointed by the court to probe some of the allegations regarding the carnage. He claimed that he could not have disclosed the sensitive information earlier unless he had been called upon to do so under a binding legal obligation.

An affidavit is an important document and the consequences of a false affidavit are serious. An affidavit can be sworn by a party to the suit or application, or by his authorised agent, or, in their absence, by any other person having knowledge of the facts in question. In cases against the state or any other public body, an officer dealing with the matter or having access to the relevant records may do so.

The author of a false affidavit is punishable under Sections 199 and 200 of the Indian Penal Code (IPC). Under Section 199, whoever, in any declaration made or subscribed by him, which declaration any court of justice is authorised to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false, shall be punished in the same manner as if he gave false evidence. Under Section 200, whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence. Section 193 of the IPC prescribes as punishment a prison term of a maximum of seven years and a fine for such a person.

A court may, at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the court thinks reasonable. Therefore, observers say it is unlikely that a serving police officer will take a huge risk by filing a false affidavit in the apex court.

Bhatt has filed his affidavit in Zakia Ahsan Jafri vs State of Gujarat. Zakia Jafri, wife of the slain Congress leader Ehsan Jafri (who was killed in the Gulberg Society massacre), had made 32 specific allegations against Narendra Modi and functionaries of the Bharatiya Janata Party (BJP) and civil servants and police officers. The most serious allegation was that Modi had convened a meeting at his bungalow in Gandhinagar on February 27, 2002, in which he instructed the Director General of Police (DGP), the Chief Secretary, and other senior officials to allow Hindus to vent their anger at Muslims for the Sabarmati train tragedy. The allegation, if proved, could form part of a criminal conspiracy charge against Modi in protecting rioters during the carnage.

The SIT, which is investigating this complaint, has, according to a report in the media, found that the Chief Minister had held such a meeting at his residence after he returned from Godhra that day.

Officials' response

Among the officials of that time, Director General of Police K. Chakravarthi, Secretary (Home) K. Nityanandam, Ahmedabad Commissioner of Police P.C. Pande and Principal Secretary to the Chief Minister P.K. Mishra denied that the Chief Minister gave such an instruction at the meeting. Acting Chief Secretary Swarna Kanta Verma and Additional Chief Secretary (Home) Ashok Narayan pleaded loss of memory owing to passage of time. Secretary to the Chief Minister Anil Mukim denied that he attended the meeting.

According to a story in Tehelka, which scooped the SIT report, SIT Chairman R.K. Raghavan has observed in the report that P.C. Pande, P.K. Mishra and Ashok Narayan, have been accommodated in post-retirement jobs by the Modi government.

Meanwhile, P.B. Sawant, retired Supreme Court Judge, and Hosbet Suresh, retired judge of the Bombay High Court, who were members of the Concerned Citizens Tribunal that inquired into the carnage, shared with the SIT the deposition before them of former Gujarat Minister of State for Revenue Haren Pandya on May 13, 2002. Pandya had told the Tribunal that he had attended the February 27, 2002, meeting, in which Modi made it clear that the police should not come in the way of a Hindu backlash.

Pandya was killed on March 26, 2003, making it impossible to confirm whether he had referred to the same meeting in which the senior officers had taken part. Curiously, however, the SIT did not consider the retired judges' statements because Pandya's deposition before them had not been recorded. The SIT concluded that it could not establish whether Modi had instructed the senior officials present at that meeting to allow Hindus to vent their anger.

Ironically, the SIT reached this conclusion even though Bhatt had brought to its knowledge that he was present at that meeting and was willing to testify after a criminal case was registered. Curiously, when the SIT examined Modi on March 25, 2010, he knew what Bhatt had told the SIT earlier. Asked by the SIT who all were present at the meeting on February 27, 2002, Modi named seven officers but added, without any prompting, that Bhatt was not present as this was a high-level meeting.

Bhatt was posted as a Deputy Commissioner of Police in the State Intelligence Bureau at that time. Since the State intelligence chief, G.C. Raigar, was on leave, the DGP wanted Bhatt to be present at the meeting to provide the necessary inputs.

Of the seven officers Modi claimed were present at the meeting, P.K. Mishra said he could not recollect if Bhatt was there. While Chakravarthi denied Bhatt's presence, the replies of the other three were vague. Verma and Narayan pleaded loss of memory.

The SIT inquiry officer, A.K. Malhotra, according to the story in Tehelka (February 12, 2011), had concluded: Since Bhatt's presence at the meeting is not proved his statement has to be ignored. The Tehelka story suggests that SIT Chairman R.K. Raghavan, too, inexplicably, endorsed Malhotra's conclusion and considered Bhatt an unreliable witness.

Disquieting aspects

Put in this context, Bhatt's affidavit raises interesting issues. While submitting the affidavit to the Supreme Court registry, with a copy to Raju Ramachandran, amicus curiae in this case, Bhatt said in his letter that he was not a party to the case but believed his affidavit disclosed facts that could be crucial to the determination of issues before the Supreme Court.

He said he had deposed before the SIT on several occasions and added that he filed the affidavit to bring on record certain disquieting aspects and inadequacies in the manner and approach of the SIT.

He claimed that he had provided the SIT with verifiable details regarding the ongoing cover-up operation, including the contemporaneous efforts made by high officials of the State administration to undermine the proceedings before the Supreme Court. He alleged that the SIT was disinclined to follow up these important leads.

According to him, the SIT does not appear to be living up to the enormous trust reposed in it by the Supreme Court to conduct an impartial and thorough probe into the allegations of a larger conspiracy and administrative complicity behind the Gujarat carnage.

More important, in his affidavit, Bhatt claimed that he gave the SIT, the names of witnesses who could corroborate the fact of his having attended the meeting with the Chief Minister on February 27, 2002. However, he alleged, the SIT chose to intimidate certain witnesses and coerce them into refraining from stating the facts. He requested the Supreme Court to ensure that the SIT followed up on all the leads provided by him in such a manner that even reluctant witnesses felt safe and confident to state the truth. He also appealed to the court to direct the authorities concerned to provide adequate and foolproof security to him and his family.

Bhatt's affidavit has landed the Supreme Court and the SIT in a serious dilemma. According to those familiar with the Supreme Court's procedure, the court must decide whether to take his affidavit on record. The question is whether the Supreme Court should take evidence directly from a witness who has been examined by the SIT.

Once the court, having answered this question, admits the affidavit, it must give the SIT a chance to reply to Bhatt's allegations. The SIT would then have to disprove Bhatt's claim that he was present at the Chief Minister's meeting with the officials on February 27, 2002. This would be a challenging situation, considering the fact that the SIT had dismissed Bhatt's testimony as unreliable. The court would then have to take a call on Bhatt's affidavit.