The Gujarat government on Friday stated that the Supreme Court did not have the power to stay the ongoing trial in the post-Godhra communal riots case and that the Special Investigation Team instituted by it cannot summon Chief Minister Narendra Modi and other accused in the murder of ex-Congress MP Ehsan Jafri during the riots.
In a fresh affidavit filed in the apex court, the state sought registration of criminal cases against NGO activist Teesta Setalvad and others for allegedly tutoring witnesses, intimidating the SIT and indulging in activities with ulterior political and vested interests.
Questioning the role played by various NGOs, Gujarat urged the apex court to issue notices to all States to examine the 'extent of interference by such third parties'.
The state government's affidavit comes in response to the apex court's April 6 decision to consider the application made by Teesta and certain others seeking stay on the trial and transferring the case to the CBI. The applicants had alleged that the SIT was functioning in a biased manner.
Modi was earlier grilled by the apex court appointed Special Investigation Team on his alleged role in the 2002 killing of Jafri who was burnt alive by a mob at Gulbarg Society, even though he made frantic calls for help to police and the chief minister.
"I state and submit that though this honourable court merely required SIT, in order dated 27th April 2009 'to look into the complaint', the SIT started calling persons named therein and started recording their statements, which is neither permissible in law nor contemplated in the aforesaid order," the affidavit said.
On April 27, 2009, the apex court had asked the SIT to "look into the complaint" of the slain MP's wife Zakia about the alleged role of Modi and others in the killing. The apex court at the last hearing while mulling the idea of staying the trial had also asked the State to drop IPS officers--Geeta Johri and Shivanand Jha from the SIT.
The case would come up for hearing on Monday. Stoutly opposing stay of the trial, Gujarat said, "once the investigating agency has filed a charge sheet after conducting an investigation under supervision and monitoring of this honourable court, in the respectful submission of the state government, the jurisdiction of this court, under Article 32 of the Constitution of India would come to an end," and cited a number of earlier rulings.
The state took the plea that under Section 173(8) of the CrPC once the chargesheet is filed as in the present case, an aggrieved party can approach only the trial court to challenge the alleged shortcomings or the inadequacy of the investigation.
Accusing Teesta of espousing the cause of those responsible for the Godhra train carnage, two of whom reportedly taking refuge in Pakistan, the state submitted that the NGO activist has tutored witnesses and ensured false affidavits to tarnish the image of the government for vested interest.
"Teesta Setalwad committed a serious offence of interfering with the investigations by sending tutored witnesses, filing false affidavits before this court and made attempts to intimidate the agency appointed by this court by making belated allegations against them."
"This is a fit case to do complete justice for protecting and maintaining the majesty of this court and in the most respectful submission of the state government, this court be pleased to direct registration of an offence against Teesta Setalwad and her accomplices and the investigation be ordered to be conducted," the affidavit said.
The state also expressed surprise at the resignation of the special public prosecutor R K Shah and attributed its link to the application in the apex court for stay of the trial and transfer of the case to the CBI.
"It is surprising to note that the stage at which the said learned special public prosecutor tendered his resignation at the time when a prayer of the applicant for re-constitution of the SIT was under consideration," the government said.
Shah had earlier resigned complaining that the trial judge and the SIT were not extending him necessary cooperation in conducting the prosecution. According to the government, Shah had resigned at the fag end of the prosecution when 295 prosecution witnesses had been examined including 60 police officers.
"The state of Gujarat is unable to appreciate as to why after substantially completing the prosecution case, suddenly the learned special public prosecutor realised that the behaviour of the learned designated judge is not proper. The state of Gujarat is also at a loss to understand a sudden feeling in the mind of the learned special public prosecutor that the SIT is not co-operating at a stage where these many witnesses are already examined successfully and in absence of any material witness turning hostile," the affidavit added.
