SANJIV RAJENDRA BHATT Vs. UNION OF INDIA & ORS.

Supreme Court of India (Division Bench (DB)- Two Judge)

Writ Petition (Civil), 135 of 2011, Judgment Date: Oct 13, 2015

                                                         



                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                   WRIT PETITION [CRIMINAL] NO.135 OF 2011

Sanjiv Rajendra Bhatt                                           … Petitioner

                                      Vs.

Union of India & Ors.                                          … Respondents

[With W.P. (Crl.) No.204/2011]

                               J U D G M E N T

ARUN MISHRA, J.

1.    The petitions have been filed by the petitioner under  Article  32  of
the Constitution. In W.P. (Crl.) No.135/2011, a  prayer  has  been  made  to
direct transfer of  the  investigation  arising  out  of  I-CR.  No.149/2011
registered on the basis of FIR  lodged  by  Mr.  K.D.  Panth   at  Ghatlodia
Police Station, Ahmedabad, (Rural), under sections 189, 193,  195,  341  and
342 of the Indian Penal Code (for short “IPC”)  to  any  independent  agency
like CBI outside the control of the State Government. An  application  being
Criminal Misc.  Petition  No.15871/2015  has  been  filed  for  issuance  of
further directions in the changed circumstances to  appoint  an  independent
Special Investigation Team (SIT) to conduct de  novo  investigation  in  the
aforesaid FIR. Prayer had also been made to investigate into the  additional
documents filed on 29.7.2011. Proceedings for contempt under Article 129  of
the Constitution read with Contempt of  Courts  Act,  be  initiated  against
incumbents named in the application, and such other persons  as  this  Court
may deem fit. A  prayer  has  also  been  made  to  direct  certain  service
providers  to  preserve  the  e-mails  and/or  electronic  traces   thereof.
Criminal Misc. Petition No.15874/2015 has  been  filed  for  impleadment  of
certain incumbents as respondents.

2.    In W.P. (Crl.)  No.204/2011,  a  prayer  has  been  made  to  transfer
investigation arising out of II-CR No.3148/2011 registered on the  basis  of
the FIR lodged by the then Additional Advocate General of State  of  Gujarat
at Vastrapur P.S., Ahmedabad, Gujarat, under section 66 of  the  Information
Technology Act, (for short “”the IT Act”) to  any  independent  agency  like
the CBI outside the control of the  State  Government.  Similarly  Crl.Misc.
Petition No.15875/2015 for  aforesaid  directions  and  for  impleadment  as
respondents - Crl.Misc. Petition No.15877/2015 has been filed.

3.    In Writ Petition (Crl.) No.135/2011, the petitioner has  averred  that
investigation of I-CR No.149/2011 is required to be transferred  to  CBI  or
any other investigating agency/SIT outside the control  of  the  then  Chief
Minister of Gujarat. Since the aforesaid FIR had been lodged with a view  to
falsely implicate,  pressurize  and  intimidate  the  petitioner  and  other
witnesses as the petitioner in statements before the SIT as well  as  before
the Commission  of  Enquiry  has  divulged  certain  facts  which  have  the
potential of directly implicating high functionary of State  of  Gujarat  in
the riots of 2002 alleging  that  there  is  an  unholy  nexus  between  the
prosecuting agency and higher echelons  of  the  Government  of  Gujarat  in
certain judicial proceedings including W.P. (Civil) No.221/2002.

4.    The petitioner has submitted that he joined  the  service  as  an  IPS
Officer way-back in the  year  1988  and  was  allocated  to  the  State  of
Gujarat. From December, 1999 to September, 2002, he  was  posted  as  Deputy
Commissioner with the State Intelligence  Bureau.  He  used  to  look  after
matters pertaining to internal  security  of  the  State,  Border  Security,
Coastal Security, security of vital installations, counter intelligence  and
VVIP security including that of the Chief Minister. He has alleged  that  he
was present in the meeting convened by the then Chief Minister on the  night
of 27.2.2002. The instant FIR was a counter-blast at  the  aforesaid  action
taken by the petitioner. The petitioner has submitted that Ms.  Jakia  Nasim
Ahesan Jafri had filed a complaint on  8.6.2006  which  was  ordered  to  be
looked into by SIT as per orders of this Court. The petitioner  is  a  close
friend of the then AAG. They have been regularly  vacationing  together  for
the last so many years. In 2009, they had made a  family  trip  to  Goa.  At
that time, it is alleged, at the request of the  then  AAG,  the  petitioner
had accessed his e-mail account. The petitioner came across very unusual  e-
mails received from SIT, (sit.godhracases@gmail.com).  It  is  alleged  that
someone from SIT was leaking sensitive and confidential contents. A copy  of
e-mail dated 14.9.2009 (P-4) has been filed.

5.    In November, 2009, the petitioner was informed telephonically  by  the
SIT appointed by this Court. Prior to the  scheduled  interaction  with  the
SIT, he was approached by the then Minister of State, Home  Department,  and
was sought to be briefed at the office of the then  AAG  of  Gujarat.  While
appearing before the SIT, he had informed Mr. A.K.  Malhotra,  Member,  SIT,
about the episode and also leaking of information by the  SIT  to  the  then
AAG. His statement was recorded on several occasions in  2009  and  2010  by
the SIT. The petitioner has further averred that he had vacationed again  in
May-June, 2010 with the then AAG along with family. He  was  again  required
to access the e-mail account on several occasions. During  the  period  from
February to June, 2010,  he  came  across  e-mail  exchanges  which  clearly
indicated an unholy and illegal complicity between  the  then  AAG  and  the
functionaries of State of Gujarat. The petitioner has further  averred  that
on 20.9.2010, he briefed the Additional Chief  Secretary  (Home)  about  the
leakage of the testimony before the SIT. He was advised  to  meet  the  then
Chief Minister to clear the air. In the intervening night  of  3rd  and  4th
November, 2010, the house of the  petitioner’s  mother  was  ransacked.  The
petitioner had lodged FIR (P-5) at Navrangpura Police Station registered  as
I-CR. No.449/2010. Again the incident was repeated on the intervening  night
of 8th and 9th November, 2010 and a steel almirah which could not be  broken
open on the earlier occasion, was broken and searched. FIR (P-6) was  lodged
at Navrangpura Police Station as I-CR No.456/2010. The petitioner  requested
for adequate security cover vide letter dated 14.2.2011 (P-7).

6.    On 15.3.2011 this Court  directed  the  Chairman,  SIT  to  carry  out
investigation and submit a report on the observations  made  by  the  amicus
curiae  appointed  by  this  Court.  Pursuant  thereto  the  petitioner  was
summoned by the SIT under section 160 of the Code of Criminal  Procedure  in
connection with the investigation of Meghani  Nagar  Police  Station,  I-CR.
No.67/2002. He was issued summons (P-10) for  21.3.2011  under  section  160
Cr.PC. The  SIT  started  recording  of  statements  of  the  petitioner  on
21.3.2011 which was concluded on 25.3.2011.  On  25.3.2011  while  recording
statement of the petitioner, the SIT expressed its  inability  to  encompass
the details  indicative  of  larger  conspiracy  of  official  orchestration
behind Gujarat riots of 2002. The  SIT  self-restricted  the  scope  of  FIR
under investigation. The petitioner had taken Mr. K.D. Panth along with  him
to the office of the SIT to corroborate the fact of his having attended  the
fateful meeting at the residence of the then  Chief  Minister  on  the  late
night of 27.2.2002. SIT was averse to record  the  statement  of  Mr.  Panth
including Mr. Tara Chand Yadav who  could  have  corroborated  the  fact  of
petitioner’s presence in the meeting. Later on, the SIT  examined  Mr.  K.D.
Panth. While recording statement,  he  was  subjected  to  intimidation  and
coercion by the SIT. The fact was informed to him on 6.4.2011  by  Mr.  K.D.
Panth. The petitioner  wrote  a  letter  to  the  Chairman,  SIT  about  the
intimidation meted out to Mr. Panth, and expressed  an  apprehension  as  to
the role and intention of certain members of  the  SIT.  On  14.4.2011,  the
petitioner sent an affidavit to this Court in  SLP  (Criminal)  No.1088/2008
pointing out certain aspects and inadequacies in the manner and approach  of
the SIT and intimidation  of  Mr.  Panth.  In  the  affidavit  he  has  also
mentioned the details of the meeting convened by the then Chief Minister  on
27.2.2002. On 27.4.2011, the petitioner was  summoned  by  Justice  Nanavati
and Mehta Commission of Inquiry (for short  ‘Justice  Nanavati  Commission’)
directing him to appear on 16.5.2011. This Court vide order  dated  5.5.2011
(P-18) in SLP (Crl.) No.1088/2008 directed the amicus curiae to examine  the
record of the SIT. He was permitted to interact with the witnesses  examined
by the SIT. On 27.5.2011, the petitioner  was  asked  by  amicus  curiae  to
remain at Gandhinagar (Ahmedabad) on 18/19.6.2011.

7.    The petitioner then informed Mr. K.D. Panth and Mr. T.C.  Yadav  about
the forthcoming visit of the amicus curiae. The petitioner suggested to  Mr.
T.C. Yadav and Mr. K.D. Panth that they may prepare affidavits to  be  given
to amicus curiae on 18.6.2011. The petitioner  submitted  that  they  agreed
and requested the petitioner to arrange for trustworthy advocate  who  could
help them in preparing and  affirming  the  proposed  affidavits  in  strict
confidence. Both the witnesses got their affidavits  prepared  and  affirmed
on 17.6.2011 and gave them to the petitioner. On  18.6.2011  the  petitioner
met the amicus curiae. Mr. T.C. Yadav also met amicus curiae.  However,  Mr.
K.D. Panth did not turn up. The petitioner then handed over a  copy  of  the
affidavit affirmed by Mr. K.D.Panth to the  amicus  curiae.  The  petitioner
came to know on 22.6.2011 that senior police officials pressurized Mr.  K.D.
Panth and made him to affirm the affidavit before the  Executive  Magistrate
at Gandhinagar negating the  earlier  affidavit  sworn  by  him  before  the
Notary Public on 17.6.2011. A written complaint was prepared at  the  behest
of Mr. K.D. Panth on the basis of which at 2330 hrs. on 22.6.2011 an FIR (P-
13) was registered at Ghatlodia Police Station  as  I-CR.  No.149/2011.   In
the course of the statement before  the  Commission,  the  counsel  for  the
State of Gujarat intimidated to the effect that the petitioner was  crossing
the line. Certain applications were filed in the ongoing  criminal  sessions
cases to summon the petitioner under section 311 as a witness  in  May-June,
2011.

      The FIR has been registered against the petitioner. He has no hope  of
fair  investigation  in  CR.  No.149/2011  hence  the  petition   has   been
preferred.

8.    The State of Gujarat in its counter affidavit has  inter  alia  raised
the question of maintainability of the petition and has submitted  that  the
petitioner is guilty of suppressing certain facts  and  has  made  incorrect
statement on oath. Thus he  is  guilty  of  suppressio  veri  and  suggestio
falsi. The petitioner has  filed  concocted  documents  regarding  award  of
Rs.500/- given to Mr. K.D. Panth for working till late night  on  27.2.2002.
The original award is  in  vernacular  language,  not  in  English  and  the
outward number is incorrect. It was not for working overnight  on  27.2.2002
as contended by the petitioner. It was for taking care of  entire  situation
post 27.2.2002 incident. The petitioner has tried to mislead this Court  and
has made false suggestions. The award was given by the State  Government  to
all employees for taking care of post the situation of  27.2.2002  incident.


      This Court has considered  all  the  allegations  made  by  petitioner
against them in SLP (Crl.) No.1088/2008 monitored  by  a  Special  Bench  of
this Court.

9.    Investigation into the riot cases of 2002  is  completed  by  the  SIT
appointed by this Court and trials are  going  on  in  accordance  with  the
orders passed by this Court on  1.5.2009  in  W.P.  (Crl.)  No.109/2003.  In
Gulberg Society case also,  this  Court  has  passed  order  in  SLP  (Crl.)
No.1088/2008. The complaint of Ms. Jakia Jafri dated  8.6.2006  has  already
been examined by  the  SIT.   The  petitioner  cannot  choose  investigating
agency. The petitioner appears to have been brought at the scene at the  fag
end of the trial by  the  political  parties,  activists  and  other  vested
interest groups. An activist has filed an application  for  being  impleaded
as respondent. While petitioner was in connivance and constant  consultation
with the adversary political party and vested interest  groups,  he  has  no
explanation to keep quiet for nine years as to the meeting dated  27.2.2002.
Other facts have also been denied. In e-mail (P-4) filed by the  petitioner,
attachments indicate that it was with respect to Sohrabuddin encounter,  the
petitioner has made false suggestions and allegations as to the contents  of
e-mails and  absolutely  false  allegations  against  SIT.  The  Sohrabuddin
encounter case was investigated by Gujarat State CID.

10.   It is further stated in the reply that the  petitioner  is  guilty  of
hacking the e-mail account of the then AAG for which offence  under  section
66 of the IT Act has been registered.   Petitioner was  leaking  information
and interacting with  media  and  other  vested  interest  groups.  He  even
attempted  to  use  media  card  to  influence  judicial  proceedings.   The
affidavit sent by the petitioner in SLP (Crl.) No.1088/2008  was  not  taken
on record. This fact has been suppressed by the petitioner. He is acting  at
the behest of rival political party in the State of Gujarat. The  State  has
made serious allegations against the petitioner and  real  motives  to  file
the petition in this Court. It has placed on  record  e-mails  sent/received
by the petitioner which indicate that the  petitioner  has  interacted  with
the Deputy leader of Assembly belonging to rival  political  party.  He  has
tried to influence amicus curiae and the 3-member Bench  of  this  Court  by
using media card and using pressure groups. He was  receiving  packages  and
materials from the leader of  rival  political  party  in  Gujarat.  He  has
referred to rival political party as  his  own  party.  While  being  cross-
examined by the  opposition  parties  before  Justice  Nanavati  Commission,
petitioner has send e-mail that the  performance  of  the  advocate  of  the
rival  political  party  was  pathetic  and  mentioned  that  “I  am   under
exploited”.

11.   Petitioner was also negotiating with several vested  interest  groups,
NGOs. and was trying to  influence  the  amicus  curiae  appointed  by  this
Court. E-mails reveal that someone else  was  instrumental  in  sending  the
unsolicited affidavit of petitioner to this Court on 14.4.2011.  He  was  in
constant touch with an activist and  her  lawyer.  E-mail  discloses  unholy
nexus of the petitioner  with  politicians,  NGOs.,  activists  etc.  It  is
submitted that on behalf of the rival political party, a prayer was made  to
call the petitioner as witness. The petitioner did not object to the  cross-
examination by Jan Sangharsh Manch, and to the main rival  political  party,
in Gujarat, but objected to the cross-examination by the State of Gujarat.

12.   It is further contended by the State  that  Mr.  K.D.  Panth  appeared
before the Executive Magistrate,  Gandhinagar  on  17.6.2011  and  swore  an
affidavit as to the  petitioner  illegally  obtaining  affidavit  which  was
filed before the amicus curiae by the petitioner. The  allegation  regarding
destruction of records has also been denied. The record of category  ‘D’  is
maintained only for 3 years that is log book of the vehicle and the same  is
not available with the State Government as the copies are maintained by  the
concerned officers contemporaneously who submit  the  same.  The  petitioner
failed to  appear  despite  several  summons  in  CR.  No.149/2011,  he  was
arrested and was immediately visited  by  the  leaders  of  rival  political
party.

13.    In  the  counter  affidavit  filed  on  behalf  of  Mr.  K.D.  Panth,
respondent  No.4,  it  is  contended  that  the   investigation   in   I-CR.
No.149/2011 is over. He has not received any award for working late  in  the
night on 27.2.2002. The petitioner has made false averments. Petitioner  had
taken him to the residence of the President of Gujarat State  Unit  of  main
rival political party. The incident is  established  by  way  of  scientific
evidence reflected in chargesheet. He was in Maharashtra from  25.2.2002  to
28.2.2002. He had visited notary/advocate at Bombay  (Maharashtra)  for  the
purpose of getting the translated documents notarized/certified.  Petitioner
has falsely  asserted  that  he  accompanied  him  to  the  meeting  at  the
residence of the then Chief Minister on 27.2.2002.

14.   He had received a call from the petitioner at 1557 hours  and  he  was
asked to meet the petitioner at 2200 hours at his residence. Petitioner  had
taken him  to  President  of  the  Gujarat  State  rival   political  party,
wherefrom he was taken to the office of  the  co-accused,  Chairman  of  the
Legal Cell of the said party  and  was  permitted  to  leave  early  in  the
morning hours after  preparation  of  affidavit  dated  17.6.2011.  All  the
movements are substantiated by the mobile  call  records  and  mobile  tower
locations.  Respondent  No.4  has  given  the  statement  before   the   SIT
constituted by this Court. The petitioner is making frivolous contentions.

15.   A counter affidavit has also been filed on behalf of  respondent  No.5
– SIT contending  that  the  evidence  given  by  Mr.  Bhatt  is  absolutely
unreliable. His antecedents have been mentioned in  detail.  The  petitioner
remained posted in various capacities in the State of Gujarat. There were  3
departmental inquiries pending against him. He was  given  3  promotions  of
Junior Administrative Grade, Selection  Grade  and  DIG  Grade  vide  orders
dated 6.8.2005, 3.9.2005 and 24.7.2006 respectively. He was  not  given  IGP
Grade as other departmental  enquiries  and   criminal  cases  were  pending
against  him.  Chargesheet  was  served   upon   him   on   29.12.2010   for
irregularities in the Police  recruitment  under  his  Chairmanship  as  SP,
Banaskantha.  In  the  year  1990,  the   petitioner   allegedly   committed
atrocities on peaceful and innocent villagers belonging to  a  place  called
Jamjodhpur in which one person was killed.  He  invoked  the  provisions  of
TADA and arrested 140 innocent persons. An inquiry was got conducted by  the
State Government and the petitioner was found guilty of misuse of  TADA  and
unnecessary imposition of curfew for 70 hours. As sanction was not given  by
the State Government to prosecute the  petitioner  the  closure  report  was
submitted which was rejected and cognizance taken under sections  302,  323,
506(1) and 114 IPC. The said case was pending for  framing  charges  against
the petitioner. The victim was awarded a compensation  of  Rs.1.5  lakh  who
died due to Police atrocities.

16.   It is further contended that petitioner was involved in infamous  case
of eviction of tenant after fabricating case under NDPS  Act  while  he  was
posted at Banaskantha.  A  complaint  was  filed  by  Mr.  S.S.  Rajpurohit,
Advocate  practising  at  Pali,  State  of  Rajasthan,  registered  as   FIR
No.403/1996 for commission of offence under sections 120B,  195,  196,  342,
347, 357, 365,388, 458, 482 IPC and sections 58(1) and  58(2)  of  the  NDPS
Act. On completion of  the  investigation,  a  chargesheet  had  been  filed
against petitioner in the Court of Special  Judge  under  the  NDPS  Act  at
Jodhpur. The allegations of the complainant advocate are that  he  had  been
occupying property as a tenant in Pali, Rajasthan, which was  owned  by  the
sister of Mr. R.R. Jain, the then Additional Judge  of  the  High  Court  of
Gujarat.  At  the  instance  of  said  Judge,  Mr.  Sanjiv  Bhatt  and   his
subordinate officers planted narcotic drugs in  a  hotel-room  at  Palanpur,
Gujarat, which was clandestinely shown as  occupied  by  said  advocate  Mr.
S.S. Rajpurohit. In order to get the property vacated,  Mr.  Rajpurohit  was
abducted by the officers of the Gujarat Police from Pali in  Rajasthan.  The
arrest was shown on 2.5.1996. Due  to  torture  of  police,  Mr.  Rajpurohit
vacated the premises and handed over possession to the sister  of  Mr.  R.R.
Jain, Additional Judge. Mr. Jain was not confirmed as Judge of  the  Gujarat
High Court and repatriated to his original post as  City  Civil  &  Sessions
Judge and had  ultimately  retired  under  suspension.  The  National  Human
Rights Commission has taken a serious note of fabrication  of  the  case  by
the petitioner under the NDPS Act and imposed a fine of  Rs.1  lakh  on  the
Government of Gujarat as the monetary relief to  Mr.  Rajpurohit,  Advocate.
Gujarat  State  Vigilance  Commission  had  recommended  on  15.7.2002   and
19.10.2006 suspension of Mr. Sanjiv Bhatt. However, his suspension  was  not
ordered. Mr. Sanjiv Bhatt did not look after political and communal  matters
during 2002 Gujarat riots.

17.   SIT has further submitted in the counter affidavit that the  claim  of
Mr. Sanjiv Bhatt that he was present in meeting convened by the  then  Chief
Minister on the night of 27.2.2002, could not be  substantiated  during  SIT
investigation. In this regard SIT has already submitted its  report  in  the
Court of  XIth  Metropolitan  Magistrate,  Ahmedabad  City  on  8.2.2012  in
compliance of the orders passed by this Court on 12.9.2011  in  addition  to
the final report already submitted by the SIT in this  Court  on  25.4.2011.
The theory put forth by the petitioner appears to be far-fetched,  imaginary
and unsubstantiated.

18.    The  allegations  made  against  the  SIT   leaking   sensitive   and
confidential contents are absolutely false, baseless and motivated.  The  e-
mails relating to Sohrabuddin encounter which was not investigated  by  SIT,
the Convener of SIT did not have anything whatsoever to do with the  matters
pending investigation/inquiry/trial with the  Supreme  Court  appointed  SIT
for Godhra cases. Thus, the petitioner has  made  a  deliberate  attempt  to
mislead this Court and intentionally avoided furnishing  of  the  enclosures
with the e-mails. The then AAG of Gujarat did not have anything to  do  with
the ongoing investigation with SIT. Sohrabuddin encounter  was  investigated
by State Police, CID (Crime) which was  earlier  being  supervised  by  Smt.
Geetha Johri as IG, CID (Crime), Gujarat State.

       The  petitioner  was  examined  by  SIT  earlier  on  25.11.2009  and
26.11.2009 not in the year 2010.  Thereafter,  he  was  called  for  further
investigation in Gulberg  Society  case  only  on  21.3.2011.  There  is  an
allegation of hacking of password of e-mail account of the then AAG.

19.   It is also contended in  reply  by  the  SIT  that  the  statement  of
petitioner was recorded on 21.3.2011, 22.3.2011 and 25.3.2011 in  connection
with Gulberg Society case. Petitioner on  his  own  without  being  summoned
brought Mr. K.D. Panth,  Constable  then  attached  to  Meghaninagar  Police
Station along with him on 25.3.2011. Petitioner stated that Mr.  K.D.  Panth
followed him on 27.2.2002 with  the  files  in  his  staff  car  whereas  he
himself had accompanied D.G.P. in his staff car. Mr. K.D. Panth was  waiting
outside and he should be  examined  in  his  presence.  The  petitioner  was
informed by SIT that Mr. Panth would be called on a date convenient  to  the
Investigating Officer and then examined. This fact was reported by  the  SIT
to this Court on  25.4.2011.  It  is  denied  that  SIT  has  expressed  its
inability to encompass the details indicative of a  larger  conspiracy.  The
facts are totally false and baseless. Mr.  Panth  did  not  corroborate  the
version of the petitioner that of having followed him in his  staff  car  to
the Chief Minister’s residence on the night of 27.2.2002.

20.   The SIT further contends that the office order which  has  been  shown
as referring to reward by the petitioner  indicates  a  fax  message  asking
M/s.  Mackro,  Chennai,  to  send  their  detailed  quotation   along   with
specifications and relevant particulars in respect of Pistol  Glock  as  the
Intelligence Bureau of Gujarat was in need to purchase the said  equipments.
In fact, the reward was given for performing work related  to  the  movement
of VIPs. during communal violence after Godhra incident which took place  on
27.2.2002. The fax message has been placed on record. Thus,  petitioner  has
filed false and forged documents in this Court.

21.   It is further contended by SIT in its reply that  the  petitioner  had
given wide publicity to the affidavit  dated  14.4.2011  through  electronic
and print media. However, after enquiries SIT has  come  to  the  conclusion
that Mr. Bhatt was not present in the meeting convened  by  the  then  Chief
Minister on 27.2.2002.

22.   It is further contended by SIT that on 17.6.2011, Mr. K.D. Panth  sent
an application to the Chairman, SIT enclosing a copy of  affidavit  affirmed
before an Executive  Magistrate,  Gandhinagar  stating  that  his  statement
before the SIT on 5.4.2011 was without any pressure or  motivation.  He  has
further stated that in the early hours on 17.6.2011 the  affidavit  was  got
signed from  him  by  petitioner  -  Mr.  Sanjiv  Bhatt  fraudulently  after
threatening him, for which a complaint was lodged  with  the  local  police.
Prayer has been made  that  action  be  taken  against  the  petitioner  for
committing contempt of court  and  also  misleading  the  court  by  placing
incorrect facts and e-mail  pertaining  to  Sohrabuddin  encounter  case  by
State Police CID (Crime).

      Petitioner has filed additional affidavit.  Petitioner  has  submitted
that his e-mail account has been illegally hacked with  a  view  to  destroy
certain crucial evidence and the State  Government  is  misusing  the  State
machinery.

23.   In reply to the aforesaid affidavit, State of Gujarat has  denied  the
facts and has given the details of the allegations in CR. No.149/2011  filed
by  Mr.  Panth.  Chargesheet  has  been  filed  under  section  173  Cr.P.C.
Statement of eye-witnesses under section 164 had been recorded. Mobile  call
records of the petitioner and complainant, exchange  of  calls  between  the
petitioner and complainant as well  as  petitioner  and  co-accused,  mobile
tower location received from service providers indicate the presence of  the
petitioner   as   well    as    the    complainant.    The    presence    of
petitioner/complainant at the residence  of  President  of  rival  political
party in Gujarat, as asserted by the complainant and  his  presence  at  the
office of the Advocate, who was Chairman of the  Legal  Cell  of  the  rival
political party  in  Gujarat,  is  also  established  by  the  mobile  tower
locations. FSL reports also corroborate that the affidavit was  prepared  on
the same laptop as stated in the FIR.

24.   A rejoinder affidavit has been filed by the petitioner in W.P.  (Crl.)
No.135/2011. It is contended by the petitioner that there  is  a  deliberate
attempt to falsify the stand of the petitioner  regarding  his  presence  in
27.2.2002 meeting with the then Chief Minister. The purpose of  annexing  e-
mails was to bring them to the notice  of  this  Court.  Petitioner  had  no
intention to suppress any information. There was nexus of the then AAG  with
the Advocate of the  accused.  Petitioner  has  filed  exchange  of  e-mails
between him and leader of rival  political  party  in  Gujarat  Assembly  on
28.4.2011 pointing out the shortcomings of  SIT  under  its  Chairman.  Full
text of e-mails exchanged between the petitioner and others has been  filed.
What is of significance is that in rejoinder affidavit, the  petitioner  has
not controverted e-mail contents  mentioned  by  State  of  Gujarat  in  its
counter affidavit.  Petitioner  has  filed  additional  affidavit  including
certain documents. He has submitted that 9 reports  submitted  by  SIT  were
sent by the Under Secretary (Home) to the then AAG and to  Mr.  G.C.  Murmu.
Mr. Gurumurthy Swaminathan  had  written  to  the   then  AAG  that  he  has
received  the  reports  and  the  attachments.  Mr.  Gurumurthy  Swaminathan
forwarded the note for hearing on 15.3.2010  to  the  counsel  appearing  on
behalf of Pranab Badekha. Petitioner has submitted  that  SIT  reports  were
given  to  the  State  counsel  and  amicus  curiae.  They  were  ultimately
forwarded to Mr. Gurumurthy who in turn had advised counsel for the  accused
Pranab Badekha in this  Court.  The  then  AAG  had  exchanged  e-mail  with
respect to Mr. Bipin Ambalal Patel to his Advocate in  this  Court.  Certain
documents were also forwarded to the other counsel. Certain e-mails  by  Mr.
Swaminathan to other functionaries and by AAG to other  State  functionaries
have been  filed  along  with  additional  affidavit  on  29.7.2011.  E-mail
exchange of Mr. Gurumurthy to correspondent of a  newspaper  has  also  been
filed. The then AAG had also drafted a  political  memorandum  addressed  to
the Hon’ble President of India to be submitted by the leaders on  behalf  of
the ruling party of the  State.  In  Sohrabuddin’s  case  investigation  was
transferred to the CBI. Thus, the then AAG was helping the accused  as  well
as acting on behalf of the State. State of Gujarat was obtaining the  advice
of Mr. Gurumurthy. Petitioner  has  also  submitted  that  in  Ishrat  Jahan
encounter case, SIT investigation was ordered. In that connection  also  the
then AAG had exchange 13 e-mails.  It  is  also  submitted  that  Additional
Secretary (Home)’s affidavit was  drafted  by  an  outsider  Mr.  Gurumurthy
Swaminathan in consultation with  the  advocates  of  the  accused  persons.
Petitioner has filed various e-mails as Annexures P-33 to P-54.

25.   Petitioner has  submitted  in  Crl.Misc.  Petition  No.15871/2015  and
Crl.Misc. Petition No.15875/2015 that Mr.  K.D.  Panth  was  pressurized  to
swear an affidavit before the Executive Magistrate on  22.6.2011  which  was
back dated to 17.6.2011 stating that the  earlier  affidavit  given  by  the
petitioner was obtained under duress at the behest of  the  petitioner.  The
applicant was sacked from service by the Ministry of  Home  Affairs  on  the
recommendations of the Government of Gujarat on  13.8.2015.  Petitioner  has
also submitted that he and the then AAG enjoyed family  relations;  that  is
how he had an opportunity to access the e-mail account. The e-mails sent  by
the applicant to the  travel  agents  regarding  visa  application,  cruise,
confirmation of tickets to Sea  World,  Santiago,  air-tickets,  car-rental,
other travel arrangements, change in travel plans etc. (A-3  to  A-14)  have
been filed.

26.   W.P. (Crl.) No.204/2011 relates to an FIR lodged by the  then  AAG  of
State  of  Gujarat  at  Vastrapur  Police  Station   registered   as   II-CR
No.3148/2011 under section 66 of the IT Act regarding hacking of his  e-mail
account and tampering of the same  by the petitioner. Prayer has  been  made
in the writ  application  to  transfer  investigation  arising  out  of  the
aforesaid crime to any independent agency like CBI outside  the  control  of
the  State  Government  and  in  Crl.M.P.  No.15875/2015.   In  the  changed
scenario prayer has been  made  to  appoint  SIT,  contempt  proceedings  be
initiated and additional documents may also be  enquired  into.  Prayer  has
also been made to direct service providers to preserve  the  e-mails  and/or
electronic traces thereof.

      State Government has filed an affidavit in reply and has  adopted  the
counter affidavit dated 8.11.2011 filed in W.P. (Crl.) No.135/2011.

27.    Ms.  Indira  Jaising,  learned  senior  counsel  appearing  for   the
petitioner  in  W.P.  (Crl.)  No.135/2011  submitted  that  considering  the
factual matrix of the case, investigation made in I-CR. No.149/2011  by  the
State Police cannot be relied  upon  as  serious  allegations  made  by  the
petitioner against the then Chief  Minister  with  respect  to  the  meeting
dated 27.2.2002 require to be looked into. Petitioner  was  present  in  the
said meeting and when he disclosed certain  facts  against  the  then  Chief
Minister the case has been filed by Mr. K.D. Panth  at  the  instigation  of
certain  officers  of   the   State   machinery.   In   the   circumstances,
investigation made  by  the  State  Police  cannot  be  fair  and  impartial
investigation and due to the changed scenario at the  national  level,  even
the CBI cannot be relied upon as pressure may also be exerted upon the  CBI.
Thus a Special Investigation Team (SIT) be formed to make  an  investigation
under the supervision of this Court. The  investigation  is  going  to  have
wide ramifications as to what transpired in  the  meeting  dated  27.2.2002,
notwithstanding the fact that a chargesheet has been filed, this  Court  has
ample power to direct investigation by an independent agency  by  forming  a
Special  Investigation  Team  of  different  independent  officers.  Learned
senior counsel has taken us through various documents  on  record  including
the e-mails to contend that there had  been  leakage  of  SIT  reports,  SIT
itself has leaked the  reports.  She  has  also  taken  us  through  various
exchange of e-mails between the then AAG, Mr.  Gurumurthy  Swaminathan  etc.
to contend that serious contempt of this Court has  been  committed  by  the
machinery of the State of Gujarat which has acted  in  connivance  with  the
accused persons. The  then  AAG  has  espoused  the  cause  of  the  accused
persons.  Both  the  FIRs.  have  been  lodged  against  the  petitioner  to
pressurize him and  recently  he  has  been  dismissed  from  service  also.
Learned senior counsel has also submitted that the amicus  curiae  appointed
by this Court has observed in his report that certain  aspects  pointed  out
by the petitioner deserve to be looked into. It was also submitted that  Mr.
K.D.  Panth,  complainant,  has  been  made  to  turn  hostile  against  the
petitioner. It was submitted that though the complainant  was  on  leave  on
27.2.2002, he joined duty due to the Godhra incident. He reported  for  duty
in the late afternoon of 27.2.2002. Learned  counsel  has  relied  upon  the
affidavit of Mr. K.D. Panth, complainant, submitted to  the  amicus  curiae.
The case of the petitioner is akin to that of Zahira Sheikh.  She  was  also
made to turn hostile and was forced to depose falsely. Petitioner  has  been
harassed with malicious prosecution as he disclosed  about  the  meeting  on
27.2.2002 and his conversation with the then Chief Minister of  Gujarat.  It
was further submitted that the then AAG has not denied the contents  of  the
e-mails exchanged by him. The then AAG had  voluntarily  given  password  to
the petitioner and there was no question of hacking his  e-mail  account  as
petitioner had close relationship with him. She has relied upon e-mails  A-3
to A-14 to show  that  they  were  jointly  enjoying  vacations.  Petitioner
himself had filed a complaint  with  the  DIG  (Police),  Economic  Offences
Wing, Delhi Police, regarding hacking of his e-mail account. It was  further
submitted by learned senior counsel that the then AAG’s conduct as  revealed
through e-mails shows a  criminal  conspiracy  between  him  and  others  in
administration of justice which constitutes offence under the IPC  and  also
amounts to  contempt  of  court.  Hence,  it  was  submitted  that  criminal
contempt  stands  substantiated  by  the  fact  that  participants  in   the
correspondence include law officers of the State of Gujarat,  the  advocates
for the accused in certain  cases  and  the  Government  of  Gujarat  and  a
complete  outsider  to  litigation  Mr.  Gurumurthy  Swaminathan  was   also
consulted by the State of  Gujarat.  She  has  further  submitted  what  was
exchanged between the parties were confidential  documents  supposed  to  be
submitted before this Court as well as the  State  of  Gujarat  in  criminal
cases and the documents to be filed  on  behalf  of  the  State  were  being
shared with individuals  who  had  no  connection  with  the  ongoing  legal
proceedings. Even the documents to be filed on behalf of  the  accused  were
being prepared by the law officers of the State with assistance from  senior
officials of the State. Thus, a prima facie case of  criminal  contempt  has
been made  out  against  the  respondent  sought  to  be  impleaded  by  the
petitioner. She has relied upon section 2(c)(iii) of the Contempt of  Courts
Act to contend that act which interferes or  tends  to  interfere  with,  or
obstructs or tends to obstruct, the administration  of  justice  amounts  to
criminal contempt for which action be initiated.

28.   It was further  submitted  by  learned  senior  counsel  that  counter
affidavit of respondent No.2 discloses sufficient reason to constitute  SIT.
It was further submitted that free and fair  investigation  is  an  integral
part and a fair trial under Article 21 of the Constitution of India and  the
petitioner lacks faith in the ability of the  State  Government  to  conduct
free and fair investigation considering the  allegations  made  against  the
then  AAG  of  the  State,  other  Government  officials  as  well  as   the
petitioner’s role in disclosing a larger  conspiracy  implicating  the  then
Chief Minister in Gujarat riots of 2002. She  has  also  emphasized  on  the
need for an inquiry by an independent agency. She has submitted that in  the
changed circumstances, inquiry  by  CBI  is  no  guarantee  of  a  fair  and
impartial investigation. Considering the present political  set  up  in  the
country even the then AAG  has  become  more  influential.  This  Court  has
monitored the investigation in several cases and there is a need for  court-
monitored  investigation.  Court  can  order  an  investigation  even  after
chargesheet is filed. She has referred to  the  e-mails  of  2009  and  2010
exchanged between the then AAG and other incumbents. She has also  submitted
that as State of Gujarat in its return has urged that  it  is  a  systematic
and larger conspiracy through petitioner  involving  top  leaders  of  rival
political party in  Gujarat  and  vested  interest  groups,  as  such  State
machinery cannot make fair investigation,  hence  from  averments  in  reply
filed by State a case is made out to constitute independent SIT. On a  query
by this  Court,  she  has  submitted  that  the  petitioner  ought  to  have
disclosed the e-mails on the various occasions when he  made  the  statement
before  SIT,  filed  affidavit  in  this  Court  and  was  examined  by  the
Commission. However, disclosure  on  29.7.2011  cannot  be  said  to  be  an
afterthought as he was pushed to the wall by lodging criminal  case  against
him by Mr. K.D. Panth.

29.   Mr. Prashant Bhushan, learned senior counsel appearing  on  behalf  of
the petitioner in W.P. (Crl.) No.204/2011  has  submitted  that  it  is  the
fittest case in which SIT investigation should be  ordered  by  this  Court,
considering the ramifications of the allegations made by the  petitioner  as
to the involvement of the then Chief Minister of the State  of  Gujarat  and
in riots of 2002. It is the bounden duty of this Court  to  constitute  SIT.
Serious criminal conspiracy is apparent from the exchange of  e-mails  filed
by the petitioner in W.P. (Crl.) No.135/2011 to  subvert  path  of  justice.
The petitioner had shared the password due to his  affinity  with  the  then
AAG and close family friendship. The investigation  in  the  case  of  II-CR
No.3148/2011 cannot be entrusted to the  State  Police.  In  the  facts  and
circumstances, investigation cannot be entrusted to the State Police  or  to
the CBI. He has also taken us through the various  documents  to  take  home
his submissions.

30.   Mr. Ranjit Kumar, learned Solicitor General appearing  for  the  State
of Gujarat has  submitted  that  considering  the  overall  conduct  of  the
petitioner, e-mail exchange of the petitioner with the  political  party  in
opposition, NGOs., media persons and others indicates  that  the  petitioner
has concocted the story as an afterthought and anyhow  or  somehow  want  to
keep issue alive. SIT reports in 9 cases were made available  to  the  State
of Gujarat on 2.3.2009. They were forwarded by the counsel to the  State  of
Gujarat on 6.3.2009. On 1.5.2009 this Court had passed  an  order  disposing
of the main matter. In National Human Rights Commission v. State of  Gujarat
& Ors. (2009) 6 SCC 767, this Court vacated the stay on commencement of  the
trial. It was submitted that SIT reports which were made  available  to  the
State of Gujarat, in none of these reports there was any  substance  of  any
investigation. Reports did not contain confidential materials.  The  reports
mentioned the action taken by SIT for filing reports and/or  for  conducting
investigation. Thus, it was not  a  secret  information  nor  contained  any
sensitive information as has been tried to be projected by  the  petitioner.
Investigation stage  reports  were  part  of  court  records.  It  was  also
submitted that the claim of the  petitioner  that  he  was  present  in  the
meeting dated 27.2.2002 is not only concocted, an afterthought and a  flimsy
one. The stand of the petitioner has already been looked into  by  the  SIT.
He has taken us through various orders and judgments passed  by  this  Court
in the case of Jakia Nasim Ahesan Jafri & Anr. v. State of  Gujarat  &  Ors.
(2011) 12 SCC 302 to contend that SIT has found the claim of the  petitioner
to  be  incorrect.  It  was  further  submitted  by  the  counsel  that  the
petitioner is trying  to  re-agitate  the  issue  with  the  help  of  rival
political party after the court-monitored investigation had come to fag  end
and even the allegations  made  by  the  petitioner  had  been  looked  into
effectively. He has also  contended that the  petitioner  has  not  come  to
Court with clean hands, as such he is not entitled to any indulgence. The e-
mail exchange does not indicate  any  criminal  conspiracy  to  subvert  the
course of justice  or  criminal  contempt  of  this  Court  in  any  manner.
Petitioner is guilty of hacking and tampering with  the  e-mail  account  of
the then AAG. Petitioner has no right to choose  investigating  agency.  The
apprehensions raised by the petitioner are baseless. Mainly,  there  has  to
be a scientific investigation with respect to the hacking and  tampering  of
e-mail account which can be effectively and fairly made by  State  agencies.
Chargesheet in CR. No.149/2011 has also been filed. It is not shown  by  the
petitioner how the investigation is tainted. The petitioner wants  to  widen
the scope of the inquiry in the cases in question. The  inquiry  is  limited
in both the cases as to whether the petitioner  is  guilty  of  the  alleged
offences or not.

31.   Learned Solicitor General has also taken us  through  various  e-mails
and has contended that in view of the e-mails exchanged, the  petitioner  is
himself guilty of  committing  criminal  contempt  of  this  Court.  He  has
endeavoured to influence  the  Special  Bench  of  this  Court  by  exerting
pressure by media and other pressure groups.  The  affidavit  of  petitioner
was prepared in consultation and deliberation with several  persons,  groups
and NGOs. In case petitioner was  present  in  meeting  dated  27.2.2002  he
would not have kept quiet for 9 years. He did not state  the  said  fact  in
2009 before SIT.

32.   Mr. C.S. Vaidyanathan, learned senior counsel appearing on  behalf  of
SIT  submitted that SIT had been constituted by this Court and its work  has
been appreciated. This Court has  monitored  its  investigation.  Petitioner
had made unwarranted allegations against SIT for no good  cause.  Petitioner
has not stated about the factum of meeting dated  27.2.2002  with  the  then
Chief Minister in his first statement recorded by SIT in the year 2009.  SIT
did not pressurise Mr.  K.D.  Panth  not  to  support  petitioner  when  his
statement was recorded. On due investigation made by the SIT,  the  presence
of the petitioner was not found in meeting dated 27.2.2002.  The  allegation
made against SIT of disclosing the  reports  is  absolutely  incorrect.  The
Member of the SIT had sent report of Sohrabuddin encounter  case  which  was
not entrusted to SIT but was looked after by Ms. Geetha Johri, Member,  SIT,
in a different capacity of State  officer.  He  has  also  pointed  out  the
antecedents of the petitioner, considering the  overall  conduct  and  track
record which is dubious, no case for interference is made out.

33.   Mr. Vikas Singh, learned senior counsel appearing  on  behalf  of  Mr.
K.D. Panth has submitted that chargesheet has been filed in  the  case  (CR.
No.149/2011) four years  before  and  the  same  has  not  been  questioned.
Investigation is over and is based upon scientific investigation and  record
of the mobile service providers buttresses the case  of  the  complainant  –
Mr. K.D. Panth. The scope of inquiry is limited in the instant  case  as  to
the conduct of the petitioner in obtaining  the  affidavit  dated  17.6.2011
which he had handed over to the amicus curiae of this  Court.  No  case  for
entrusting the case to any other agency is made out.

34.   Mr. L.Nageshwara Rao, learned senior counsel appearing  on  behalf  of
the  then  AAG  in  W.P.  (Crl.)  No.204/2011  has  submitted  that   wholly
unwarranted allegations have been made. Even the family of the then AAG  has
been attacked in a brazen manner by the petitioner whose  conduct  indicates
that he has not come to  this  Court  with  clean  hands.  His  conduct  and
antecedents are tainted. He had not only  hacked  e-mail  account  but  also
tampered with the e-mails for which report has been lodged.  The  allegation
of criminal conspiracy which has been levelled  is  wholly  unwarranted  and
the conduct of the then AAG cannot be said to be of committing  contempt  of
this Court or subverting the course of justice in any manner whatsoever.  It
was up to the State to take the advice of  any  other  individual.  All  the
main functionaries were put under scanner. In peculiar  facts  of  the  case
there was thin line left due to the accusation against  the  State  and  its
functionaries who were subjected to false accusations. The  conduct  of  the
then AAG could not be said to be improper.  The  e-mails  exchanged  by  the
then AAG, Mr. Gurumurthy etc. cannot be said to be offending and  subverting
the course of justice whereas the petitioner himself has tried to  influence
independent decision making by this  Court  as  reflected  by  his  e-mails.
Thus, no cause for any indulgence is made out and the petitions  deserve  to
be dismissed.

35.   The backdrop facts indicate that in the wake of Godhra incident  which
took place on 27.2.2002, National Human Rights Commission filed W.P.  (Crl.)
109/2003 in this Court. On 8.6.2006, Ms. Jakia Jafri filed a complaint  with
the Director General of Police, Gujarat against 63  persons  for  commission
of offence under section 302 read with section  120-B  IPC  in  relation  to
Gujarat riots requesting the complaint to be registered as an FIR which  was
refused.  Said  Jakia  Jafri  filed  criminal  complaint  -   Special   Crl.
Application No.421/2007 - seeking a direction to register  the  case  as  an
FIR vide order dated 2.11.2007. SLP (Crl.)  No.1088/2008  was  preferred  by
said Jakia Jafri.  On 3.3.2008 this Court issued  notice.  On  26.3.2008  in
National Human Rights Commission case - W.P. (Crl.) No.109/2003, this  Court
has  passed  an  order  constituting  a  Special   Investigation   Team   to
investigate 9 major cases pertaining to Gujarat riots of 2002. On  27.4.2009
this Court  directed  SIT  to  look  into  the  allegations  made  into  the
complaint of Ms. Jakia Jafri. On 1.5.2009 this Court  vacated  the  stay  of
trial of 9 cases and directed that SIT would continue to monitor  the  trial
and submit periodic reports every 3  months.  On  30.7.2009,  SIT  submitted
interim report in  Jakia  Jafri’s  case.  Petitioner  was  examined  by  SIT
appointed by this Court at Gandhinagar  in  the  context  of  Jakia  Jafri’s
complaint. The allegation of Jakia Jafri was that  during  the  period  from
27.2.2002 and 10.5.2002 the  incidents  which  took  place  were  committed,
abetted and conspired by some responsible persons  in  power  in  connivance
with powerful persons in the State administration including the police.   On
2.2.2010 SIT had submitted in this Court  that  further  investigation  with
respect to Ms. Jakia’s  complaint  was  over.  On  20.1.2011  amicus  curiae
appointed by this Court submitted a note on SIT preliminary  enquiry  report
in Jakia Jafri’s case. On 15.2.2011 this Court directed SIT  to  submit  its
report on the observations made in the amicus  curiae  note  and  carry  out
further investigation if required. On 15.3.2011 SIT issued  summons  to  the
petitioner for recording of his statement in connection with the  FIR  I  CR
No.67/2002 registered at Meghaninagar Police Station. SIT had  recorded  the
statement of the petitioner in March, 2011.  On  25.3.2011,  petitioner  had
taken Mr. K.D. Panth along with him as witness to corroborate the fact  that
petitioner had attended the fateful meeting at the  residence  of  the  then
Chief Minister  on  the  night  of  27.2.2002.  However,  SIT  recorded  the
statement of Mr. K.D. Panth on 5.4.2011.  Mr.  Panth  did  not  support  the
presence of the petitioner in the  meeting  dated  27.2.2002.  On  14.4.2011
petitioner suo moto had sent an  affidavit  to  this  Court  in  SLP  (Crl.)
No.1088/2008 pointing out SIT’s conduct  regarding  testimony  of  Mr.  K.D.
Panth and its reluctance to record information as to the  larger  conspiracy
behind 2002 riots. On 5.5.2011 this Court permitted the amicus  to  interact
with witnesses. Pursuant thereto, on 17.6.2011 petitioner got  prepared  the
affidavits of Mr.  K.D.  Panth  and  Mr.  Tarachand  Yadav.  Petitioner  had
arranged advocate for the said purpose and on 18.6.2011 petitioner  and  Mr.
Yadav met amicus curiae. However,  Mr.  K.D.  Panth  did  not  turn  up  for
meeting amicus curiae as such his affidavit dated 17.6.2011 was handed  over
to him by the petitioner. Mr. Panth lodged a report against  the  petitioner
as to obtaining the aforesaid affidavit in illegal  manner  which  had  been
registered  on  22.6.2011  in  I-CR.  No.149/2011.  The  statement  of   the
petitioner  was  recorded  by  Justice  Nanavati  Commission  initially   on
16.5.2011. He was also cross-examined on 29.6.2011.

36.   It is also relevant to mention certain e-mails which have been  placed
on record and relied upon by the respondents so as to contend that  petition
has not been filed bona fide. In the rejoinder filed by the petitioner,  the
e-mails which have been referred to in the return  filed  by  the  State  of
Gujarat have not been controverted or alleged to be incorrect in any  manner
by the petitioner. The petitioner has annexed full text of some  of  the  e-
mails along with rejoinder. However substance of  the  e-mails  remains  the
same. Though the petitioner has also mentioned in  the  rejoinder  affidavit
that he has filed complaint with the DIG (Police), Economic  Offences  Wing,
Delhi Police regarding unauthorized hacking of his  e-mail  account.  It  is
not understandable a senior officer of  Police  like  petitioner  has  filed
complaint to Economic Offences Wing which  is  not  at  all  concerned  with
offences like hacking of e-mails. To avoid embarrassment at large,  we  deem
it appropriate to quote only  some  relevant  portions  of  the  e-mails  of
petitioner which have been heavily relied upon.

      Certain e-mails were exchanged on 27th and 28th  April,  2011  between
the petitioner and political leader of rival party. Petitioner required  him
to send copy of the note and even tried to suggest the points if  necessary.
Political leader ultimately sent the packages. Petitioner   acknowledged  to
have received the item. On  28.4.2011  said  political  leader  informs  the
petitioner about date of hearing in SLP (Crl.) No.1088/2008 – Jakia  Jafri’s
case that the case is not on tomorrow’s board and will  come  up  next  week
and he will be sending a small note. On  28.4.2011  petitioner  had  further
exchanged e-mail with the said political leader and has  mentioned  about  a
note on “points for arguments in Supreme Court case, allegations to be  made
against the members of  SIT”.

37.   Yet another set of e-mails exchanged with another political leader  of
rival party in which there is reference of approaching the high echelons  in
the party. On 28.5.2011 petitioner had  sent  another  e-mail  to  the  said
leader asking him “Any progress on the front of  Amicus  Curiae  ?  Time  is
running out. We need to act quickly.”

There is another e-mail dated 28.4.2011 petitioner had sent, reflecting  his
meeting with other political leaders of rival party.

38.   Petitioner had  also  sent  on  17.5.2011  e-mail  to  said  incumbent
indicating the performance of  the advocate appearing  for  rival  political
party was absolutely  pathetic  and  he  has  also  mentioned  “I  am  under
exploited”. Petitioner has also exchanged  e-mail  with  Chairman  of  Legal
Cell of rival  political  party.  In  one  of  the  e-mails  petitioner  has
mentioned influencing the amicus curiae of this Court thus :

“amicus should be calling me on his own in  due  course.   You  can  try  to
mobilize support/pressure-groups in Delhi to influence him in a very  subtle
manner”.

39.   With respect to the affidavit which was  sent  by  the  petitioner  on
14.4.2011 certain e-mails indicate that he was in  constant  touch  with  an
activist of NGO and her senior advocate and meeting was arranged  with  said
lawyer at Ellisbridge Gymkhana, Ahmedabad.  Petitioner  has  also  exchanged
the affidavit dated 14.4.2011 with  a  journalist.  He  has  also  consulted
about the contents of the affidavit with  a  journalist  who  has  suggested
addition of a paragraph which appears  to  have  been  incorporated  in  his
corrected affidavit. Be that as it may. At least it is apparent that  before
sending the affidavit dated 14.4.2011 to this  Court  it  was  exchanged  to
invite suggestions.

Petitioner had also suggested the affidavit of yet another correspondent  in
order to support his statement  that  he  had  attended  the  meeting  dated
27.2.2002. Petitioner has sent e-mail  to  the  said  correspondent  to  the
effect  that

“May be you can mention that I had met him (Sanjiv Bhatt) on  27th  when  he
was about to go to the “disputed meeting”.

      The petitioner had send an  e-mail  to  one  of  the  TV  channels  on
19.5.2011 to the following effect :

“Filed an affidavit in Supreme Court on 16th May, saying that  he  was  with
me when he had to leave for CM’s meeting on 27th.  Kindly   confirm  through
your sources in Supreme Court.”

In one of the e-mails the petitioner  even  asks  Correspondent  whether  he
would be comfortable with   xxxxxxx ? (Names of media persons).

Ultimately, when the reluctance of said correspondent  still  persists,  the
petitioner writes to him as  under :

“My feeling is what we could let the press sniff it  out  and  contact  you.
It will not make a good story for them, but, make the print  media  to  take
notice of your affidavit and finally force the hand of  amicus  and  Supreme
Court to take notice and subsequent affirmative action.”

40.   Petitioner had also sent other e-mails to few TV channels.  Petitioner
has also sent yet another e-mail to the said  correspondent  suggesting  him
to play the media card. He has stated :

 “I think we should play the media card and make it difficult for the  other
side.  If you fear that amicus and Supreme Court will not take it  seriously
then media trick can be tried. xxx.”

Petitioner was in touch with an activist of the  NGO  and  was  deliberating
upon what was to be stated before Justice Nanavati Commission. The  exchange
indicates ghost questions in lead and cross were prepared and  sent  to  the
petitioner. Said activist has suggested that her lawyer should spend 2  days
with the petitioner  to  deliberated  ghost  questions  in  lead  and  cross
expecting the worst so that petitioner is prepared to reply.

An activist writes  “what I  believed  was  necessary  or  is  necessary  is
having a Lawyer like …….. (name of advocate) spend a few  days  with  you  …
then we prepared GHOST questions in LEAD and CROSS expecting the  worst  and
you are prepared to reply..”

41.   Petitioner had exchanged yet another e-mail with another  activist  of
Narmada Bachao Andolan in which he has mentioned to create  a  situation  so
as to make it difficult for a 3-Judge Bench of this Court to  disregard  the
shortcomings of SIT and exerting pressure  by the groups and opinion  makers
in Delhi. Relevant portion is quoted below :-

      “ What we need to do at this stage is to create  a situation where  it
would be difficult for three judge bench hearing Zakia–Jaffri’s SLP 1088  of
2008  to  disregard  the  shortcomings  of  SIT  under  stewardship  of  Mr.
Raghavan.  The Pressure groups and opinion makers in Delhi can be  of  great
help in forwarding the cause.  I am hopeful that things will  start  turning
around from next hearing  if  proper  pressure  is  maintained  at  National
level”.

In one of the e-mails written to another President  of  NGO  petitioner  has
referred to rival political party. He has written :

“ I will take  it  up  with  someone  in  the  party  and  getting  suitably
instructed.”

The petitioner has sent the e-mails of the then AAG with  to  news  channels
but they decided not to use them and  petitioner  had  also  suggested  them
they could also access the e-mail of the then AAG.

42.   In e-mail exchange with another officer indicated that the  petitioner
was trying to ascertain location of one Haren Pandya on 27th night from  the
said officer. Said officer replied :

“ there is absolutely no  question of him being in Gandhinagar”.

      It appears that the petitioner has stated that Haren Pandya  was  also
there in CM’s  residence  on  27.2.2002.   Petitioner  was  also  trying  to
ascertain the precise time of the meeting in his e-mail  exchange  with  the
said officer. The petitioner had sent another e-mail to  the  said  officer.
The same is to the following effect :

“The deposition went well.  The cross could have been a  little  better.   I
felt a little under-exploited!  Lets  hope  they  exploit  me  fully  during
subsequent hearings.”

Petitioner has also exchanged e-mails with others to recreate  his  movement
on 27.2.2002.

43.   The aforesaid exchange of e-mails which are self-explanatory  indicate
that the petitioner was in active touch  with  leaders  of  rival  political
party, NGOs., their lawyers tried to play media card, was being  tutored  by
NGOs. The manner in which he acted is apparent from  the  aforesaid  e-mails
and need not be repeated. Petitioner had  probably  forgotten  that  he  was
senior IPS Officer. In case he was fairly stating a fact after  9  years  he
ought not to have entered into the aforesaid exercise  and  kept  away  from
all politics and activism of creating pressure, even upon 3-Judge  Bench  of
this Court, amicus and many others. Thus the entire  conduct  of  petitioner
indicates that he was not acting bona fide and was catering to the  interest
elsewhere.  Even if we ignore his antecedents vividly mentioned in reply  of
SIT for time being, his aforesaid conduct does not inspire confidence.

44.   Petitioner has initially in writ petitions  prayed  for  investigation
by CBI or by other independent agency.  In  an  application  for  directions
filed in 2015, the petitioner has stated that he has no  faith  in  the  CBI
also and the cases should be investigated by SIT which  may  be  constituted
by this Court. It was strenuously urged by learned senior counsel  appearing
for the petitioner that considering the ramifications of the case  and  also
the fact that the petitioner was present in the meeting dated  27.2.2002  is
also to be looked into. As such it is the  duty  of  this  Court  to  direct
investigation by SIT.

45.   We are not impressed by aforesaid submissions. It cannot be said  that
the petitioner has  come  to  this  Court  with  clean  hands.  Firstly  the
petitioner kept quiet for a period of 9 years  as to the factum  of  meeting
dated 27.2.2002. Then he was exchanging e-mails for  ascertaining  the  time
and presence of the persons at Ahmedabad. In case  he  was  present  in  the
meeting it was not required of him to ascertain those facts. Petitioner  did
not state fact of meeting dated 27.2.2002 in statement recorded  by  SIT  in
2009. The explanation offered by the petitioner for said omission  that  his
statement was recorded in  the  year  2011  before  SIT  under  section  161
Cr.P.C. as such he made all disclosures.  The  SIT  was  same,  having  same
powers  all  the  time.  Petitioner  is  a  senior  IPS  officer  thus   the
explanation of the petitioner does not appear to be prima facie credible.

46.    This  Court  had  earlier  appointed  SIT  and  petitioner  had  made
unwarranted and serious allegations on the SIT  constituted  by  this  Court
whose performance has been appreciated by this  Court  a  number  of  times.
Petitioner after keeping quiet for 9 years had taken  Mr.  K.D.  Panth  with
himself to the SIT on 25.3.2011  and  insisted  that  Mr.  Panth  should  be
examined in his presence. It was not  expected  of  a  senior  officer  like
petitioner to act in the aforesaid manner. Effort of petitioner  to  examine
Mr. K.D. Panth on 25.3.2011  in  his  presence  by  SIT  was  indicative  of
pressure tactic employed by him. The SIT ultimately examined  Mr.  Panth  on
5.4.2011 and Mr. Panth has not supported the stand of  the  petitioner  that
he attended the meeting dated 27.2.2002. Later on petitioner as per his  own
case, got drafted and obtained the affidavit  of  Mr.  Panth  and  Mr.  Tara
Chand Yadav and he had provided legal assistance  to  them  and  had  handed
over the affidavit of Mr. Panth to  the  amicus  curiae  appointed  by  this
Court; whereas Mr. Panth did not turn up to handover his own  affidavit.  It
is  also  apparent  that  the  petitioner  had  acted  in  deliberation  and
consultation with the leaders of rival political party, NGOs. and  had  sent
the e-mails to the effect that he was not fully exploited by  a  counsel  of
the rival political party while his  statement  was  being  recorded  before
Justice Nanavati Commission. He had exchanged e-mails with  rival  political
party leaders and was being tutored by the lawyer of NGO and  its  activist.
Ghost questions and answers were also prepared as  to  what  the  petitioner
was required to speak before Justice  Nanavati  Commission.  Petitioner  has
used the media card, has even sent the e-mails  to  influence  the  judicial
proceedings of a 3-Judge Bench of this Court and has tried to influence  the
amicus curiae.  The e-mails also indicate that he tried pressure groups  and
tried to invoke media pressure. He sent e-mail account details of  the  then
AAG to the media channels but they did  not  oblige  the  petitioner  as  it
would not have been appropriate  in  their  opinion  to  do  so.  Petitioner
inspite of being a senior IPS officer was interacting  with  the  top  rival
political leaders of Gujarat. He also suggested to a correspondent  that  he
was required to state that he was  present  when  he  was  leaving  for  the
meeting dated 27.2.2002.  The  e-mails  of  interactions  with  journalists,
press, media, NGOs., conduct  reflected  in  e-mails  exchanged  during  the
course of inquiry before Justice Nanavati Commission, made it clear that  he
has not come to the Court with clean hands. No relief can be  granted  if  a
person approaches this Court with unclean hands as laid down by  this  Court
in Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114.

47.   As per averments made by the petitioner, he accessed  the  e-mails  of
the then AAG in the years 2009 and 2010. In case these e-mails were  in  his
possession, it was the bounden duty of the petitioner to  disclose  them  at
the relevant time in appropriate proceedings at an appropriate stage but  he
did not do so. Even when he has made statement before the SIT on  25.11.2009
and 26.11.2009, it was his bounden duty to disclose the e-mail of  14.9.2009
in case he was  in  possession  of  the  same.  Apart  from  that  when  the
petitioner’s statement was recorded by  SIT  in  March,  2011,  it  was  his
bounden duty to hand over e-mails to the SIT and it was also incumbent  upon
him to mention the same in the unsolicited affidavit dated  14.4.2011  which
he had filed in SLP (Crl.) No. 1088/2008 – Jakia Jafri’s case  but  he  kept
silent as  to  the  e-mails  in  the  said  affidavit.  When  he  made  such
sensational  disclosures  after  9  years,  what  prevented  him  from   not
disclosing the e-mails and keeping quiet is  inexplicable  conduct.  In  the
statement before Justice Nanavati Commission also petitioner has  failed  to
state about the e-mails. When he has sent the e-mails  to  the  effect  that
his potential was  not  fully  exploited  by  rival  political  party,  what
prevented him  from  stating  about  the  e-mails  before  Justice  Nanavati
Commission also is not understandable. Learned senior counsel appearing  for
the petitioner  in  response  to  the  query  made  by  the  court  why  the
petitioner kept quiet as to  e-mails  on  aforesaid  occasions,  fairly  and
rightly conceded that it was the duty of the  petitioner  to  state  on  the
aforesaid occasions as to the e-mails but their explanation that  petitioner
was ultimately pushed to the wall by registering  a  criminal  case  at  the
behest of Mr. Panth, then he disclosed the e-mails, is also  not  acceptable
as the petitioner’s  statement before Justice Nanavati Commission  continued
even after the date of registration of offence.  The  aforesaid  explanation
does not appear to be sound one. The petitioner has filed the e-mails  first
time in this Court along with affidavit dated  29.7.2011.  This  was  around
the time when the report as to hacking of e-mail account and tampering  with
the e-mails was filed by the then AAG against the petitioner. The  questions
of delay and explanation are ultimately to be gone into finally in  criminal
case II-CR. No.3148/2011, without meaning to decide in present  proceedings,
the overall conduct of the petitioner does not inspire confidence.

48.   It was submitted on  behalf  of  the  petitioner  that  since  he  was
present in the meeting dated 27.2.2011 and this aspect is material  for  the
cases in question, as such  considering  ramifications,  this  Court  should
direct investigation by SIT into  the  aforesaid  allegations.  We  are  not
ready to accept the submission for various reasons.  Firstly  the  scope  of
inquiry in the case I-CR. No.149/2011 on the basis of the  complaint  lodged
by Mr. K.D. Panth is whether his affidavit was obtained  by  the  petitioner
under coercion and in  the  circumstances  narrated  by  him  in  the  First
Information Report. This aspect is not required to be gone into and  decided
in this case whether  the  petitioner  was  present  in  the  meeting  dated
27.2.2002 and what transpired in that meeting. That is not the issue  within
the ambit and scope of I-CR. No.149/2011. It  is  simply  a  case  in  which
question has to be gone into  whether  the  affidavit  dated  17.6.2011  was
obtained by the petitioner in the circumstances alleged by  Mr.  K.D.  Panth
and after taking him to political luminaries  of  rival  party  and  whether
they were involved in preparation/drafting of the  same.  Similarly  in  the
case of hacking of e-mail account also  the  aforesaid  question  cannot  be
said to be open for investigation  at  all  considering  the  scope  of  the
complaint  lodged  by  the  then  AAG.  Thus  the  submission  made  by  the
petitioner to sensationalise the issue by widening the scope of  inquiry  of
the aforesaid two cases and that SIT is required to  be  appointed  for  the
aforesaid reasons, is too tenuous to be accepted.

49.   This Court on 22.4.2009 had directed SIT to look into complaint  dated
8.6.2006 of  Ms.  Jakia  Jafri.  Apart  from  that  petitioner  has  himself
appeared before the SIT as per the  directions  issued  by  this  Court  for
further investigation. On 12.5.2010 SIT had  examined  number  of  witnesses
and looked into large number of  documents  and  submitted  the  report  and
recommended further  investigation  under  section  173(8)  Cr.P.C.  against
certain police officials and  a  Minister  in  the  State  Cabinet  who  was
ultimately  tried  also.  The  SIT  conducted  further   investigation   and
submitted its report  dated  17.11.2010  before  this  Court.  On  20.1.2011
learned amicus curiae  appointed  by  this  Court  submitted  a  preliminary
report. This Court on 15.3.2011 directed Chairman,  SIT  to  look  into  the
observations made by the learned amicus curiae  and  to  carry  out  further
investigation if necessary in the light of the suggestions  made  by  amicus
curiae. Thereafter on 21.3.2011, 22.3.2011 and 25.3.2011 the petitioner  was
examined by the SIT and Mr. K.D. Panth on 6.4.2011. The petitioner had  sent
an unsolicited affidavit on 14.4.2011 to this Court which was not  taken  on
record. Petitioner was also  summoned  by  Justice  Nanavati  Commission  on
27.4.2011. The SIT conducted further investigation under section  173(8)  in
the Gulberg Society case and submitted its report on 24.4.2011.  This  Court
examined the report  dated  24.4.2011  submitted  by  SIT  and  directed  on
5.5.2011 that a copy of the same be supplied to the  learned  amicus  curiae
who shall examine the reports of the SIT and make an independent  assessment
of the witnesses statements recorded by the  SIT  and  submit  his  comments
thereon and also observed that it  would  be  open  to  the  learned  amicus
curiae to interact with any of the witnesses who have been examined  by  SIT
including the Police officers. Thereafter, petitioner  had  appeared  before
the amicus curiae on 18.6.2011 and  handed  over  disputed  affidavit  dated
17.6.2011 of Mr. K.D. Panth who failed to turn up before the amicus  curiae.
On 25.7.2011 amicus curiae submitted his final  report  before  this  Court.
SIT had prepared a final report in the aforesaid matter and  this  court  on
12.9.2011  disposed  of  Jakia  Jafri’s  case  (supra),  and  directed   the
Chairman, SIT to file the  final  report  along  with  the  entire  material
collected  by  SIT  to  the  court  which  had  taken  cognizance  of  Crime
No.67/2002 in terms of Section 173(2) Cr.P.C. Thereafter, SIT in  compliance
of the  order  dated  12.9.2011  has  filed  the  final  report  before  the
competent court in Sessions Case No.152/2002.

50.   The SIT in its report submitted to the trial court  had  come  to  the
conclusion that  the  claim  of  the  petitioner  that  he  was  present  on
27.2.2002 in meeting held at the residence of the  then  Chief  Minister  is
not correct. The SIT has made the investigation into  the  aforesaid  aspect
and SIT in its counter affidavit has also clearly stated that it  was  found
after investigation that the petitioner  was  not  present  in  the  meeting
dated 27.2.2002. Thus with  respect  to  the  investigation  into  aforesaid
aspect, the matter stands concluded as to the petitioner’s presence  in  the
meeting dated 27.2.2002.  That  investigation  had  been  made  by  the  SIT
appointed by this Court and there  is  absolutely  no  basis  now  to  order
constitution of a fresh SIT to look into the aforesaid  aspect.  This  Court
in Jakia Jafri’s case (supra) has observed as follows :

“9. We are of the opinion that bearing in mind the scheme of Chapter XII  of
the Code, once the investigation has been conducted and  completed  by  SIT,
in terms of the orders passed by this Court from time to time, there  is  no
course available in law, save and except to forward the final  report  under
Section 173(2) of the Code to the court empowered to take cognizance of  the
offence alleged. As observed by a three-Judge Bench of this  Court  in  M.C.
Mehta (Taj Corridor Scam) v. Union of India  (2007)  1  SCC  110,  in  cases
monitored by this Court, it is concerned with  ensuring  proper  and  honest
performance of its duty by the investigating agency and not with the  merits
of the accusations in investigation, which  are  to  be  determined  at  the
trial on the filing of the charge-sheet in the  competent  court,  according
to the ordinary procedure prescribed by law.

10. Accordingly, we direct the Chairman, SIT  to  forward  a  final  report,
along with the entire material collected by SIT,  to  the  court  which  had
taken cognizance of Crime Report No. 67 of 2002, as required  under  Section
173(2) of the Code. Before submission of its report, it will be open to  SIT
to obtain from the amicus curiae copies of his  reports  submitted  to  this
Court. The said court will deal with  the  matter  in  accordance  with  law
relating to the trial of the  accused,  named  in  the  report/charge-sheet,
including matters falling within the ambit and scope of  Section  173(8)  of
the Code.

11. However, at this juncture, we deem it necessary  to  emphasise  that  if
for any stated reason SIT opines in its report, to be submitted in terms  of
this order, that there is no sufficient evidence or reasonable  grounds  for
proceeding against any person named in the complaint dated 8-6-2006,  before
taking a final decision on such “closure”  report,  the  court  shall  issue
notice  to  the  complainant  and  make  available  to  her  copies  of  the
statements of the witnesses, other related documents and  the  investigation
report strictly in accordance with  law  as  enunciated  by  this  Court  in
Bhagwant Singh v. Commr. of Police (1985) 2 SCC 537. For the sake  of  ready
reference, we may note that in the said decision, it has been held  that  in
a case where the Magistrate to whom a  report  is  forwarded  under  Section
173(2)(i) of the Code, decides not to take cognizance of the offence and  to
drop the proceedings or takes a view that there is no sufficient ground  for
proceeding against some of the persons mentioned in the FIR, the  Magistrate
must give notice to the informant and  provide  him  an  opportunity  to  be
heard at the time of consideration of the report.

12. Having so directed, the next  question  is  whether  this  Court  should
continue to monitor the case any further. The legal position  on  the  point
is made clear by this Court in Union of India v. Sushil Kumar Modi (1998)  8
SCC 661, wherein, relying on the decision  in  Vineet  Narain  v.  Union  of
India (1996) 2 SCC 199, a Bench of three learned Judges had  observed  thus:
(Sushil Kumar Modi case (supra), SCC p. 662, para 6)

“6. … that once a  charge-sheet  is  filed  in  the  competent  court  after
completion of the investigation, the process of  monitoring  by  this  Court
for the purpose of making CBI and  other  investigative  agencies  concerned
perform their function of investigating into the  offences  concerned  comes
to an end; and thereafter it is only the court in which the charge-sheet  is
filed which is to deal with  all  matters  relating  to  the  trial  of  the
accused, including matters falling within the scope  of  Section  173(8)  of
the Code of Criminal Procedure. We make this observation only  to  reiterate
this clear position in law so that no doubts in any quarter may survive.””

51.   The petitioner has also  made  allegations  against  the  SIT  to  the
effect that on 14.9.2009 he came across from two e-mails received  from  the
official e-mail address of the SIT  from  the  inbox  of  the  then  AAG  of
Gujarat when he was accessing the former e-mails. Thus he  has  accused  the
SIT of leaking reports to the then AAG.  However,  position  has  been  made
clear by the State of Gujarat and SIT in  the  counter  affidavits.  In  our
opinion, the allegation that the SIT had been  leaking  very  sensitive  and
confidential details pertaining to  the  ongoing  investigation  is  totally
false and baseless. Two e-mails referred to by the petitioner were  sent  by
Ms. Geetha Zohri, IPS, Additional DG of Police, and  the  then  Convener  of
SIT from the e-mail of SIT for Godhra cases to the then AAG. Both  these  e-
mails were related to the  investigation  done  in  the  year  2005  in  the
Sohrabuddin encounter case by the State Police (Crime) of which  Ms.  Geetha
Zohri IG (Crime) was incharge. She wrongly used  the  e-mail  ID  of  Godhra
cases at her cost to transmit these information pertaining  to  CID  (Crime)
to the then AAG. That information absolutely had  nothing  to  do  with  the
matters  pending  investigation/inquiry/trial  with   the   Supreme   Court-
appointed SIT for Godhra cases. Petitioner had made  deliberate  attempt  to
mislead this Court and has enclosed only the covering text  of  the  e-mails
and intentionally  avoided  the  enclosures  because  the  same  would  have
exposed falsity of his stand. The two e-mails dated 14.2.2009  sent  by  Ms.
Geetha Zohri to the then AAG have been filed along with  the  enclosures  by
SIT. A report in this regard had already  been  submitted  by  SIT  to  this
Court on 23.2.2011. Thus the petitioner is guilty  of  suppressio  veri  and
suggestio falsi. He has suppressed the enclosures which  he  ought  to  have
filed and ought not to have made false  allegations  in  the  writ  petition
that SIT was exchanging sensitive  and  confidential  information  with  the
then AAG. It is unfortunate that on the one hand petitioner has  prayed  for
appointment of SIT and on the other has not spared  SIT  appointed  by  this
Court and has  made  false  allegations  against  it.  The  conduct  of  the
petitioner cannot be said to be desirable.

52.   Coming to the question whether the investigation into the  allegations
made in I-CR. No.149/2011 requires  investigation  by  the  SIT.  There  are
various reasons for which SIT investigation is not warranted at all  in  the
aforesaid case. The scope of the case is only  whether  the  petitioner  had
obtained the affidavit of Mr. K.D.Panth  in  an  illegal  manner  for  which
offence case has been registered. In the  case chargesheet has already  been
filed after investigation by the concerned police to  the  competent  court.
In the counter affidavit filed by  respondent  No.4,  chargesheet  has  been
placed on record, the statements of various  witnesses  have  been  recorded
including the scientific evidence of mobile-tower,  laptop  etc.  Statements
of eye witnesses under section 164 Cr.PC have  also  been  recorded.  Mobile
record of the petitioner and the complainant clearly indicate  the  exchange
of calls between petitioner and co-accused during the  relevant  period.  It
is also found that the mobile  tower  location  received  from  the  service
providers with respect  to  complainant’s  mobile  and  petitioner’s  mobile
established that the  complainant  was  present  at  the  residence  of  the
petitioner at the time stated in the FIR and mobile tower location of  rival
political luminaries and advocate who happens to be the  Chairman  of  Legal
Cell of rival political party. Laptop of the said advocate  was  seized  and
laboratory had confirmed that affidavit was prepared on the  same,  we  make
no comment on the investigation and the chargesheet which has been filed  as
on ultimate trial, the facts have to be gone  into  and  decided.  Once  the
chargesheet has been filed to the  knowledge  of  the  petitioner  before  4
years, it has not been questioned  and no  attempt  has  been  made  by  the
petitioner to indicate how the investigation is unfair and incomplete or  in
any of the other aspects  investigation  is  required.  Credibility  of  the
investigation is not the subject matter at this stage. It  has  to  be  gone
into during the course of trial. The petitioner has unnecessarily  tried  to
widen the scope of the case and  no  case  is  made  out  so  as  to  direct
investigation in CR. No.149/2011 by SIT  into  the  circumstances  in  which
affidavit dated 17.6.2011 of Mr. K.D. Panth  has  been  obtained.  Once  the
chargesheet has been filed the court has to proceed in accordance  with  law
in the matter.

53.   It was also submitted on behalf of learned counsel for the  petitioner
that  counter  affidavit  filed  in  W.P.   (Crl.)   No.135/2011   discloses
sufficient reason  to  constitute  SIT  in  which  in  the  reply  filed  by
respondent No.2 it has been mentioned that “there is no room for doubt  that
it is a systematic and larger conspiracy through  the  petitioner  of  rival
political party in Gujarat and vested interest  groups  surviving  on  anti-
Gujarat campaign all of whom had started efforts to  keep  the  Godhra  riot
issue live based on concocted facts  and  the  petitioner,  through  all  of
them, is trying to build up a story at a stage when  after  almost  10  long
years this Court has virtually  concluded  the  judicial  proceedings  after
undertaking tremendous judicial exercise”. In our opinion, by the  aforesaid
averment in the reply no case is made out for investigation by the SIT  into
I-CR. No.149/2011 relating to preparation of affidavit or  for  that  matter
in  II-Crime  No.3148/2011  relating  to  hacking  of  e-mail  account   and
tampering with it. These are not such cases  of  wide  amplitude  so  as  to
warrant SIT to be constituted or even the  CBI  to  be  entrusted  with  the
investigation. It is not for the  petitioner  to  choose  the  investigating
machinery as held by this Court in Sakiri Vasu  v.  State  of  U.P.  &  Ors.
(2008) 2 SCC 409 thus :

“10. It has been held by this Court in CBI. v. Rajesh Gandhi [1996)  11  SCC
253, (vide para 8)]  that no one can insist that an offence be  investigated
by a particular agency. We fully  agree  with  the  view  in  the  aforesaid
decision. An aggrieved person can only claim that the offence he alleges  be
investigated properly, but he has no right to claim that it be  investigated
by any particular agency of his choice.”

54.    The  accused  has  no  right  with  reference  to   the   manner   of
investigation or mode of prosecution. Similar is the law laid down  by  this
Court in Union of India & Anr. v. W.N. Chadha (1993) Supp  4  SCC  260,  Ms.
Mayawati v. Union of India & Ors.  (2012)  8  SCC  106,  Dinubhai  Boghabhai
Solanki v. State of Gujarat (2014) 4 SCC 626, CBI v.  Rajesh  Gandhi  (1996)
11 SCC 253, Competition Commission of India v. SAIL &  Anr.  (2010)  10  SCC
744 and Janta Dal v. H.S. Choudhary (1991) 3 SCC 756.

55.   Learned  senior  counsel  appearing  for  the  petitioner  has  placed
reliance on the decision in Babubhai v. State of Gujarat (2010) 12 SCC  254,
wherein it  was held as follows :

“45.  Not only the fair  trial  but  fair  investigation  is  also  part  of
constitutional  rights  guaranteed  under  Articles  20  and   21   of   the
Constitution of India.  Therefore, investigation must be  fair,  transparent
and  judicious  as  it  is  the  minimum  requirement  of   rule   of   law.
Investigating agency cannot be permitted  to  conduct  an  investigation  in
tainted and biased  manner.   Where  non-interference  of  the  Court  would
ultimately result in failure of justice, the Court must interfere.”

56.   Learned senior counsel has placed reliance on Zahira Habibulla  Sheikh
v. State of Gujarat  (2004) 4  SCC  158,  Rubabbuddin  Sheikh  v.  State  of
Gujarat & Ors. (2010) 2 SCC 200, Narmada Bai v.  State  of  Gujarat  &  Ors.
(2011) 5 SCC 79, CBI v. Amitbhai Anilchandra Shah  (2012)  10  SCC  545.  In
cases related to Best Bakery, Sohrabuddin encounter  etc.,  considering  the
nature of the case, appropriate directions were issued  by  this  Court  for
conducting impartial investigation  by  CBI  or  other  independent  agency.
However, SIT constituted by this Court has  already  investigated  into  the
main cases and the scope of cases in hand is not so wide in magnitude so  as
to direct the SIT or CBI to investigate into the matters.

57.   It was submitted by learned senior counsel that there is  a  need  for
investigation by an independent agency when the local police  officials  and
State officials are involved. For that, learned senior  counsel  has  relied
upon R.S. Sodhi, Advocate  v. State of U.P. & Ors. (1994) Supp 1 SCC 143  as
follows :

      “2.…we think that since  the  accusations  are  directed  against  the
local police personnel it would be desirable to  entrust  the  investigation
to an independent agency like the Central Bureau of  Investigation  so  that
all concerned including the relatives of the deceased may feel assured  that
an independent agency is looking into the matter and  that  would  lend  the
final outcome of  the  investigation  credibility.  However  faithfully  the
local  police  may  carry  out  the  investigation,  the  same   will   lack
credibility since the allegations are against them. It is only with that  in
mind that we having thought it both advisable and desirable as  well  as  in
the interest of justice to entrust the investigation to the  Central  Bureau
of Investigation forthwith and  we  do  hope  that  it  would  complete  the
investigation at an early date so that those involved  in  the  occurrences,
one way or the other, may be brought to book. We direct accordingly.  In  so
ordering we mean no reflection  on  the  credibility  of  either  the  local
police or the State Government  but  we  have  been  guided  by  the  larger
requirements of justice.”

      R.S. Sodhi was a case of fake encounter killings. The case in hand  is
not such and this Court has already appointed  SIT  which  has  looked  into
various allegations raised by  Ms.  Jakia  Jafri  in  the  course  of  which
petitioner  had  been  examined  and  his  stand  regarding  meeting   dated
27.2.2002 has not been found to be correct. Whether there is hacking  of  e-
mail  account  in  II-CR.   No.3148/2011   and   tampering   with   e-mails,
investigation is to be based on the scientific evidence. It cannot  be  said
that merely because report has been lodged by the then  AAG  of  the  State,
investigation is not going to be fair or impartial. More so, when it  is  to
be based on the scientific evidence and in case investigation  is  not  fair
or not made into all the aspects it would  be  open  to  the  petitioner  to
question  it  at  an  appropriate  time  before  an  appropriate  forum   in
accordance with law.

58.   To constitute SIT, learned senior counsel has also relied upon  Vineet
Narain & Ors. V. Union of India & Ors. [(1996) 2 SCC 199], Union of India  &
Ors. V. Sushil Kumar Modi [(1998) 8 SCC 661], M.C. Mehta v. Union  of  India
[(2007) 1 SCC 110], Centre for Public Interest Litigation &  Ors.  V.  Union
of India & Ors. [(2011) 1 SCC 560], Shahid Balwa v. Union of  India  &  Ors.
[(2014) 2 SCC 687], Manoharlal Sharma v. Principal Secretary & Ors.  [(2014)
2 SCC 532]. Reliance was also placed on NHRC v. State of Gujarat  [(2009)  6
SCC 342] and Ram Jethmalani & Ors. V. Union of India & Ors.  [(2011)  8  SCC
1] to constitute SIT. Relevant extracts of Vineet Narain (supra) are  quoted
below :

      “2. The  gist  of  the  allegations  in  the  writ  petition  is  that
government agencies, like the CBI and the Revenue authorities,  have  failed
to perform their duties and legal obligations inasmuch as they  have  failed
to properly investigate matters arising out of the seizure of the so  called
"Jain Diaries" in certain raids conducted by the CBI.  It  is  alleged  that
the apprehending of certain terrorists led to  the  discovery  of  financial
support to them by clandestine and illegal means, by use  of  tainted  funds
obtained through 'hawala' transactions; that this  also  disclosed  a  nexus
between several important politicians, bureaucrats and  criminals,  who  are
all  recipients  of  money  from  unlawful  sources   given   for   unlawful
considerations; that the CBI and other government agencies  have  failed  to
fully investigate into the matter and take it to the logical  end  point  of
the trial and to prosecute all persons who have committed  any  crime;  that
this is being done with a view to protect  the  persons  involved,  who  are
very influential and powerful  in  the  present  set  up;  that  the  matter
discloses a definite nexus between crime and corruption in  public  life  at
high places in the country which poses a serious threat  to  the  integrity,
security and economy of the nation; that probity in public life, to  prevent
erosion of the rule  of  law  and  the  preservation  of  democracy  in  the
country, requires that the government agencies be compelled to duly  perform
their legal obligations and to proceed in accordance with law  against  each
and every person involved, irrespective of the height at which he is  placed
in the power set up.

3. The facts and circumstances of the present case do indicate  that  it  is
of utmost public importance that this matter is examined thoroughly by  this
Court to ensure that all government agencies, entrusted  with  the  duty  to
discharge their functions and obligations in accordance  with  law,  do  so,
bearing in  mind  constantly  the  concept  of  equality  enshrined  in  the
Constitution and the basic tenet of rule of law : "Be you ever so high,  the
law is above you". Investigation into every  accusation  made  against  each
and every person on a reasonable basis, irrespective  of  the  position  and
status of that person, must be conducted and completed  expeditiously.  This
is imperative to retain public confidence in the impartial  working  of  the
government agencies.

4. In  this  proceeding  we  are  not  concerned  with  the  merits  of  the
accusations or the individuals alleged to be involved,  but  only  with  the
performance of  the  legal  duty  by  the  government  agencies  to  fairly,
properly and fully investigate into  every  such  accusation  against  every
person, and to take the logical final action in accordance with law.”

59.   We have already discussed nature of cases in hand  applying  aforesaid
principles. No case is made out to constitute SIT. No  doubt  about  it  “be
you ever so high the law is above you” is a well accepted principle  but  in
the instant case the conduct of the petitioner cannot be said  to  be  above
board. Neither it can be said that he has  come  to  the  court  with  clean
hands. Petitioner was a high ranking officer but he too cannot  be  said  to
be above law. He must undergo the investigation as envisaged by law in  case
he has committed the offences in question.

60.          There is no need to monitor the case any further as this  Court
has already laid down in Jakia Jafri’s case (supra)  that  once  chargesheet
has been filed it is not necessary for Court to monitor  the  case  and  the
case of hacking of e-mail account is not such which needs any  investigation
by SIT or CBI or court’s monitoring.

61.   It was also submitted that the Court can transfer investigation  after
chargesheet is  filed.  That  can  be  done  only  in  extraordinary  cases.
Considering  the  scope  and  ambit  of  enquiry  in  both  the  cases,  the
submission based upon  Rubabbuddin  Sheikh  (supra),  Narmada  Bai  (supra),
State of Punjab v. Central Bureau of Investigation  &  Ors.  [(2011)  9  SCC
182] and Bharati Tamang v. Union of India & Anr.  [(2013)  15  SCC  578]  is
untenable.

62.   Coming  to  question  whether  criminal  contempt  proceedings  to  be
initiated, as prayed, learned senior counsel appearing  for  petitioner  has
heavily relied upon e-mail exchanges filed by petitioner allegedly  from  e-
mail account of the then AAG with respect to which offence CR.  No.3148/2011
under section 66 of the IT Act has been registered. The  allegation  against
petitioner is of hacking of account and tampering with e-mails with  respect
to which an FIR has been filed, without meaning to deciding the  correctness
of the e-mails they are being looked  into  only  for  the  purpose  whether
criminal contempt of the Court has been committed.

63.   It was submitted by learned senior counsel for petitioner  that  there
was criminal nexus between  the  then  AAG  with  lawyers  of  the  accused,
Ministers and non-State actors to undermine the administration  of  justice.
It was submitted that certain replies etc. which were to be filed  in  court
were  shown  to  Mr.  G.Swaminathan  who  was  completely  outsider  to  the
litigation. In our opinion merely taking somebody’s opinion who is  outsider
to litigation before filing the reply in the court would not  undermine  the
administration of justice in any way  and  is  not  indicative  of  criminal
conspiracy. There are knowledgeable incumbents who can always  be  consulted
and their opinion obtained.  There  is  nothing  improper  in  it.  If  some
reply/petition was to be filed in Gujarat court and the same  was  shown  to
the said gentleman for his opinion  it  would  not  subvert  the  course  of
justice in any manner. When certain pleading is to be filed in  court  there
is no legal bar on consultation with the appropriate persons  of  confidence
or having requisite knowledge. It  was  submitted  by  the  petitioner  that
certain affidavit was sent to the said person  in  which  he  has  suggested
certain paragraphs to be incorporated but the learned Solicitor General  has
shown actual affidavit filed in the case in which alterations  suggested  by
the said person were not actually inserted.

64.    It  was  also  submitted  that  9  SIT  reports  were  sent  to   Mr.
G.Swaminathan in 2010. These reports were submitted by SIT on  11.2.2009  in
this Court and copies thereof were ordered to be handed over  to  the  State
of Gujarat on 2.3.2009. On 6.3.2009 the reports were made available  to  the
counsel appearing for the State of Gujarat. They were in turn  forwarded  to
the State authorities. This  Court  has  passed  an  order  on  1.5.2009  in
National Human  Rights  Commission’s  case  (supra)  vacating  the  stay  on
commencement of trial. In the reports which had been  placed  on  record  by
petitioner only the action taken by SIT  was  mentioned  and  the  stage  of
investigation or need for conducting further  investigation.  These  reports
did not contain material/finding for or against any accused person hence  no
advantage could be derived therefrom by any accused  person.  They  did  not
contain such  material  disclosure  of  which  may  subvert  the  course  of
justice. No case is made out of criminal conspiracy  and  criminal  contempt
or otherwise. It cannot be culled out how the course  of  justice  has  been
subverted by the  aforesaid  disclosure  of  SIT  reports.  Thus  charge  of
criminal contempt cannot be said to be taken home  successfully.  Petitioner
has not been able to substantiate that the aforesaid actions  interfered  or
obstructed in the administration of justice in any  manner.  Petitioner  was
not able to establish how the reports could be of any help to anybody so  as
to  subvert  the  course  of  justice  or  action   otherwise   amounts   to
interference with administration of  justice.  The  petitioner  has  himself
obtained these SIT reports, as per the then AAG allegedly in illegal  manner
whereas as per petitioner by sharing the e-mails of the then  AAG.  If  they
were meant to be confidential petitioner has also used them and even sent e-
mail  particulars  of  the  then  AAG  to  media  channels.  Therefore   the
submission advanced does not lie in his mouth. Overall exchange  has  to  be
considered in the light of sweeping accusations against the  State  and  its
large  number  of  functionaries.  The  conduct  of  the  then  AAG  in  the
circumstances he was placed,  has  been  unnecessarily  adversely  commented
upon, the accusation of criminal contempt is not at all made out.

65.   Merely sending some representation which was to be  submitted  to  the
President and Prime Minister of India, and other documents  to  an  advocate
who was a politician also would not tantamount to criminal  contempt  unless
and until it is shown that the information was intended to help the  accused
in any manner whatsoever, it cannot be  said  that  sharing  of  information
tantamount to criminal contempt.

66.         Learned counsel for the petitioner has placed  reliance  upon  a
decision of this Court in Rachapudi Subba Rao v.  Advocate  General,  Andhra
Pradesh [(1981) 2 SCC 577] in which as to criminal  contempt,  it  has  been
laid down thus:

 “14. It is noteworthy, that in the categorization of contempt in the  three
sub-clauses  (i)  to  (iii),  only  category  (ii)   refers   to   ‘judicial
proceeding’.  Scandalizing of court  in  its  administrative  capacity  will
also be covered by sub-clauses (i) and (iii).   The  phrase  “administration
of justice” in sub-clause (iii) is far wider in scope than  “course  of  any
judicial proceeding”.  The last words “in any other  manner”  of  sub-clause
(iii) further extend its ambit and give it a residuary character.   Although
sub-clauses (i) to  (iii)  describe  three  distinct  species  of  “criminal
contempt”, they are not always mutually exclusive.”


67.   This Court has considered what constitutes criminal  contempt  in  Dr.
D.C. Saxena v. Hon’ble the Chief Justice of India [(1996)  5  SCC  216]  and
has laid down the aforesaid criteria thus :

      “38. The contempt of court evolved in  common  law  jurisprudence  was
codified in the form of the Act. Section 2(c)  defines  “criminal  contempt”
which has been extracted earlier. In A.M. Bhattacharjee case [1995  (5)  SCC
457] relied on by the petitioner himself, a Bench of two  Judges  considered
the said definition and held that scandalising the court would mean any  act
done or writing published which is calculated to bring the court  or  judges
into contempt or to lower its authority or to interfere with the due  course
of justice or the legal process of the court. In  para  30,  it  was  stated
that scandalising the court is a convenient way of describing a  publication
which, although it does not relate to  any  specific  case  either  past  or
pending or any specific Judge, is a scurrilous attack on the judiciary as  a
whole, which is calculated to undermine the  authority  of  the  courts  and
public confidence in the administration of justice. Contempt of court is  to
keep the blaze of glory around  the  judiciary  and  to  deter  people  from
attempting to render justice contemptible in  the  eyes  of  the  public.  A
libel upon a court is a reflection upon  the  sovereign  people  themselves.
The contemnor conveys to the people that the administration  of  justice  is
weak or in corrupt hands. The fountain of justice is tainted. Secondly,  the
judgments  that  stream  out  of  that  foul   fountain   are   impure   and
contaminated. In Halsbury’s Laws of England (4th Edn.) Vol. 9,  para  27  at
page 21 on the topic “Scandalising the Court” it is stated  that  scurrilous
abuse of a judge or court, or attacks on the personal character of a  judge,
are punishable contempts. The punishment is inflicted, not for  the  purpose
of protecting either the court as a whole or the individual  judges  of  the
court from a repetition of the attack, but of  protecting  the  public,  and
especially those who either voluntarily or by compulsion are subject to  the
jurisdiction of the  court,  from  the  mischief  they  will  incur  if  the
authority of the tribunal is undermined or  impaired.  In  consequence,  the
court has regarded with particular seriousness allegations of partiality  or
bias on the part of a judge or a court. On the other hand,  criticism  of  a
judge’s conduct or of the conduct of a court, even if  strongly  worded,  is
not a contempt provided that the criticism is fair, temperate  and  made  in
good faith, and is not directed to the personal character of a judge  or  to
the impartiality of a judge or court.”

                                  x x x x x

40. Scandalising the court,  therefore,  would  mean  hostile  criticism  of
judges as  judges  or  judiciary.  Any  personal  attack  upon  a  judge  in
connection with the office he holds is dealt with  under  law  of  libel  or
slander. Yet defamatory publication concerning the judge as a  judge  brings
the court or judges into contempt, a serious impediment to  justice  and  an
inroad on the majesty of justice. Any caricature of a  judge  calculated  to
lower the  dignity  of  the  court  would  destroy,  undermine  or  tend  to
undermine public confidence in the administration of justice or the  majesty
of justice. It would, therefore, be scandalising the judge as  a  judge,  in
other words, imputing partiality, corruption, bias, improper  motives  to  a
judge is scandalisation of the court and would be  contempt  of  the  court.
Even imputation of lack of impartiality  or  fairness  to  a  judge  in  the
discharge of his official duties amounts to contempt. The  gravamen  of  the
offence is that of lowering his dignity or authority or an  affront  to  the
majesty of justice. When the  contemnor  challenges  the  authority  of  the
court, he interferes with the performance of duties  of  judge’s  office  or
judicial process or administration of justice or  generation  or  production
of tendency bringing the judge or judiciary into contempt. Section  2(c)  of
the Act, therefore, defines criminal contempt  in  wider  articulation  that
any publication, whether by words, spoken or written, or  by  signs,  or  by
visible representations, or otherwise of any matter  or  the  doing  of  any
other act whatsoever which scandalises or tends to scandalise, or lowers  or
tends to lower the authority of any court; or prejudices, or  interferes  or
tends to interfere with, the due  course  of  any  judicial  proceeding;  or
interferes or tends to interfere with, or obstructs or  tends  to  obstruct,
the administration of justice in any other manner, is a  criminal  contempt.
Therefore, a tendency to scandalise the  court  or  tendency  to  lower  the
authority of the  court  or  tendency  to  interfere  with  or  tendency  to
obstruct the  administration  of  justice  in  any  manner  or  tendency  to
challenge  the  authority  or  majesty  of  justice,  would  be  a  criminal
contempt. The offending act apart, any tendency if it may lead to  or  tends
to lower the authority of the court is a criminal contempt. Any  conduct  of
the contemnor which has the tendency or produces a  tendency  to  bring  the
judge or court into contempt or tends to lower the authority  of  the  court
would also be contempt of the court.”

                                             (emphasis supplied)

68.   This Court in Rizwan-Ul-Hasan & Anr. v. State of  U.P.  [AIR  1953  SC
185] has laid down that judicial contempt is not to be invoked unless  there
is real prejudice which can be regarded as a substantial  interference  with
due course of justice and the Court will not exercise its jurisdiction  upon
a mere question of propriety. This Court has laid down thus :

      “10. … the jurisdiction in contempt is not to be invoked unless  there
is real prejudice which can be regarded as a substantial  interference  with
the due course of justice and that the purpose of the Court's  action  is  a
practical purpose and it is reasonably clear on  the  authorities  that  the
Court  will  not  exercise  its  jurisdiction  upon  a  mere   question   of
propriety.”

69.   Considering the aforesaid decisions, it does not appear  that  the  e-
mail exchange between the then AAG and other  functionaries  tantamounts  to
causing prejudice or  amounts  to  substantial  interference  in  any  other
manner in due course of justice. It is not  the  case  of  scandalizing  the
court or in any manner affecting fair decision of the court  or  undermining
the majesty of  the  Court/people’s  confidence  in  the  administration  of
justice or bringing  or  tending  to  bring  the  court  into  disrepute  or
disrespect which tantamount to criminal contempt under section 2(c)(iii)  of
the Contempt of Courts Act.

70.   Apart from that prayer to initiate criminal contempt on the  basis  of
documents  filed  on  29.7.2011  has  been  made  in  the  applications  for
directions – Crl.M.P. Nos. 15871/2015  and  15875/2015  filed  in  2015.  On
merits we have not found any case is made out of criminal contempt.  Besides
it is also clear that the prayer is also  barred  by  limitation.  One  year
limitation is provided under section 20 of the Contempt of Courts Act.  Both
applications  are  hopelessly  barred  by  limitation  so  as  to   initiate
contempt.

71.    Resultantly,   the   writ   petitions   and   Crl.   Misc.   Petition
Nos.15871/2015, 15874/2015, 15875/2015, 15877/2015 and  other petitions  are
dismissed. Since there was interim stay, as charge-sheet has been  filed  in
I-CR. No.149/2011, let trial court proceed further in accordance  with  law,
and  investigation  in  II-CR.  No.3148/2011  be   made   expeditiously   in
accordance with law.  No costs.

                                                                ………………………CJI
                                                                (H.L. Dattu)


New Delhi;                                                      …………………………J.
October 13, 2015.                                              (Arun Mishra)