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Reportable

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,

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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,

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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”.      

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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

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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.”

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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

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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”.

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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.”

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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

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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

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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

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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-

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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

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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

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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

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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

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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

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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.

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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  

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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,

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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

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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

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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

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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

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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.”

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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

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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

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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;

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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.”

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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.    

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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

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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

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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

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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.

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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

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“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

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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 :

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“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

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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)                                                    

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