When offence of criminal contempt of court is not made out?

It was submitted by learned senior counsel for petitioner that
there was criminal nexus between the then AAG with lawyers of the
accused, Ministers and non-State actors to undermine the
administration of justice. It was submitted that certain replies etc.
which were to be filed in court were shown to Mr. G.Swaminathan
who was completely outsider to the litigation. In our opinion merely
taking somebody’s opinion who is outsider to litigation before filing
the reply in the court would not undermine the administration of
justice in any way and is not indicative of criminal conspiracy. There
are knowledgeable incumbents who can always be consulted and their
opinion obtained. There is nothing improper in it. If some
reply/petition was to be filed in Gujarat court and the same was shown
to the said gentleman for his opinion it would not subvert the course
of justice in any manner. When certain pleading is to be filed in court
there is no legal bar on consultation with the appropriate persons of
confidence or having requisite knowledge. It was submitted by the
petitioner that certain affidavit was sent to the said person in which he
has suggested certain paragraphs to be incorporated but the learned
Solicitor General has shown actual affidavit filed in the case in which
alterations suggested by the said person were not actually inserted.
64. It was also submitted that 9 SIT reports were sent to Mr.
G.Swaminathan in 2010. These reports were submitted by SIT on
11.2.2009 in this Court and copies thereof were ordered to be handed
over to the State of Gujarat on 2.3.2009. On 6.3.2009 the reports were
made available to the counsel appearing for the State of Gujarat. They
were in turn forwarded to the State authorities. This Court has passed
an order on 1.5.2009 in National Human Rights Commission’s case
(supra) vacating the stay on commencement of trial. In the reports
which had been placed on record by petitioner only the action taken by
SIT was mentioned and the stage of investigation or need for
conducting further investigation. These reports did not contain
material/finding for or against any accused person hence no advantage
could be derived therefrom by any accused person. They did not
contain such material disclosure of which may subvert the course of
justice. No case is made out of criminal conspiracy and criminal
contempt or otherwise. It cannot be culled out how the course of
justice has been subverted by the aforesaid disclosure of SIT reports.
Thus charge of criminal contempt cannot be said to be taken home
successfully. Petitioner has not been able to substantiate that the
aforesaid actions interfered or obstructed in the administration of
justice in any manner. Petitioner was not able to establish how the
reports could be of any help to anybody so as to subvert the course of
justice or action otherwise amounts to interference with administration
of justice. The petitioner has himself obtained these SIT reports, as per
the then AAG allegedly in illegal manner whereas as per petitioner by
sharing the e-mails of the then AAG. If they were meant to be
confidential petitioner has also used them and even sent e-mail
particulars of the then AAG to media channels. Therefore the
submission advanced does not lie in his mouth. Overall exchange has
to be considered in the light of sweeping accusations against the State
and its large number of functionaries. The conduct of the then AAG in
the circumstances he was placed, has been unnecessarily adversely
commented upon, the accusation of criminal contempt is not at all
made out.
65. Merely sending some representation which was to be submitted
to the President and Prime Minister of India, and other documents to
an advocate who was a politician also would not tantamount to
criminal contempt unless and until it is shown that the information
was intended to help the accused in any manner whatsoever, it cannot
be said that sharing of information tantamount to criminal contempt.
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]
Dated;October 13, 2015. 
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 189,2
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 State3
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, Border4
Security, Coastal Security, security of vital installations, counter
intelligence and VVIP security including that of the Chief Minister.
He has alleged that he was present in the meeting convened by the
then Chief Minister on the night of 27.2.2002. The instant FIR was a
counter-blast at the aforesaid action taken by the petitioner. The
petitioner has submitted that Ms. Jakia Nasim Ahesan Jafri had filed a
complaint on 8.6.2006 which was ordered to be looked into by SIT as
per orders of this Court. The petitioner is a close friend of the then
AAG. They have been regularly vacationing together for the last so
many years. In 2009, they had made a family trip to Goa. At that time,
it is alleged, at the request of the then AAG, the petitioner had
accessed his e-mail account. The petitioner came across very unusual
e-mails received from SIT, (sit.godhracases@gmail.com). It is alleged
that someone from SIT was leaking sensitive and confidential
contents. A copy of e-mail dated 14.9.2009 (P-4) has been filed.
5. In November, 2009, the petitioner was informed telephonically
by the SIT appointed by this Court. Prior to the scheduled interaction
with the SIT, he was approached by the then Minister of State, Home
Department, and was sought to be briefed at the office of the then
AAG of Gujarat. While appearing before the SIT, he had informed
Mr. A.K. Malhotra, Member, SIT, about the episode and also leaking
of information by the SIT to the then AAG. His statement was
recorded on several occasions in 2009 and 2010 by the SIT. The
petitioner has further averred that he had vacationed again in
May-June, 2010 with the then AAG along with family. He was again
required to access the e-mail account on several occasions. During the
period from February to June, 2010, he came across e-mail exchanges
which clearly indicated an unholy and illegal complicity between the
then AAG and the functionaries of State of Gujarat. The petitioner has
further averred that on 20.9.2010, he briefed the Additional Chief
Secretary (Home) about the leakage of the testimony before the SIT.
He was advised to meet the then Chief Minister to clear the air. In the
intervening night of 3rd and 4th November, 2010, the house of the
petitioner’s mother was ransacked. The petitioner had lodged FIR
(P-5) at Navrangpura Police Station registered as I-CR. No.449/2010.
Again the incident was repeated on the intervening night of 8th and 9th
November, 2010 and a steel almirah which could not be broken open
on the earlier occasion, was broken and searched. FIR (P-6) was
lodged at Navrangpura Police Station as I-CR No.456/2010. The6
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 examined7
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 petitioner8
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 cases9
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.10
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 the11
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 Nanavati12
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 book13
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 rival14
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 called15
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 a16
tenant in Pali, Rajasthan, which was owned by the sister of Mr. R.R.
Jain, the then Additional Judge of the High Court of Gujarat. At the
instance of said Judge, Mr. Sanjiv Bhatt and his subordinate officers
planted narcotic drugs in a hotel-room at Palanpur, Gujarat, which
was clandestinely shown as occupied by said advocate Mr. S.S.
Rajpurohit. In order to get the property vacated, Mr. Rajpurohit was
abducted by the officers of the Gujarat Police from Pali in Rajasthan.
The arrest was shown on 2.5.1996. Due to torture of police, Mr.
Rajpurohit vacated the premises and handed over possession to the
sister of Mr. R.R. Jain, Additional Judge. Mr. Jain was not confirmed
as Judge of the Gujarat High Court and repatriated to his original post
as City Civil & Sessions Judge and had ultimately retired under
suspension. The National Human Rights Commission has taken a
serious note of fabrication of the case by the petitioner under the
NDPS Act and imposed a fine of Rs.1 lakh on the Government of
Gujarat as the monetary relief to Mr. Rajpurohit, Advocate. Gujarat
State Vigilance Commission had recommended on 15.7.2002 and
19.10.2006 suspension of Mr. Sanjiv Bhatt. However, his suspension
was not ordered. Mr. Sanjiv Bhatt did not look after political and
communal matters during 2002 Gujarat riots. 17
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,18
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 of19
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 affidavit20
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 from21
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 not22
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 the23
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 the24
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. 25
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 including26
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 he27
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 this28
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 of29
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. 30
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 anyhow31
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 petitioner32
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.33
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. The34
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 petitioner35
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 Jafri36
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 conspired37
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 information38
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 has39
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”. 40
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 with41
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.”42
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 deliberated43
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”.44
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.” 45
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 learned46
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 a47
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 were48
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 these49
e-mails were in his possession, it was the bounden duty of the
petitioner to disclose them at the relevant time in appropriate
proceedings at an appropriate stage but he did not do so. Even when
he has made statement before the SIT on 25.11.2009 and 26.11.2009,
it was his bounden duty to disclose the e-mail of 14.9.2009 in case he
was in possession of the same. Apart from that when the petitioner’s
statement was recorded by SIT in March, 2011, it was his bounden
duty to hand over e-mails to the SIT and it was also incumbent upon
him to mention the same in the unsolicited affidavit dated 14.4.2011
which he had filed in SLP (Crl.) No. 1088/2008 – Jakia Jafri’s case
but he kept silent as to the e-mails in the said affidavit. When he
made such sensational disclosures after 9 years, what prevented him
from not disclosing the e-mails and keeping quiet is inexplicable
conduct. In the statement before Justice Nanavati Commission also
petitioner has failed to state about the e-mails. When he has sent the
e-mails to the effect that his potential was not fully exploited by rival
political party, what prevented him from stating about the e-mails
before Justice Nanavati Commission also is not understandable.
Learned senior counsel appearing for the petitioner in response to the
query made by the court why the petitioner kept quiet as to e-mails50
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 the51
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 that52
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 and53
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 on54
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.55
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 Vineet56
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,57
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 hand58
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 the59
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.135/201160
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 particular61
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.”62
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 into63
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 be64
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;65
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.”66
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. 67
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 their68
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 for69
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 State70
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.71
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 topic72
“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 contemnor73
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 :74
“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 by75
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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