Gujarat high court is scheduled to hear today a petition filed by former BJP MLA, Kalu Maliwad, challenging the proposed SIT probe against CM Narendra Modi.
Gujarat high court is scheduled to hear today a petition filed by former BJP MLA, Kalu Maliwad, challenging the proposed SIT probe against CM Narendra Modi and 62 others for their role during the 2002 riots, pursuant to the supreme court's order to this effect to the SIT. The apex court order had come on a petition filed by Zakia Jafri, widow of parliamentarian Ahsan Zafri who was slain in Gulbarg Society riots. Subsequent to the HC notice to the respondents of Maliwad's petition - Teesta Setalwad of CJP, Zakia Jafri and the state government - have submitted their affidavits, to which Maliwad has submitted three rejoinder affidavits. DNA presents excerpts from the affidavits:
Teesta's reply: A backdoor bid to review SC judgment
“Zakia’s complaint relates to overreaching crimes of mass murder, criminal conspiracy, subversion and destruction of evidence etc., attributed to none less than the chief minister of Gujarat, his cabinet colleagues, and IAS and IPS officers, among others."
Countering Maliwad's claim in his petition that the FIR lodged about Gulbarg incident has already been investigated by the SIT, which is the subject matter of Zakia's complaint, Teesta has said that Zakia's complaint of 6 June, 2006 to book Modi and others for Gulbarg society massacre is different from the complaint lodged at Meghaninagar police on February 28, 2002
She says, "The present petition is a misguided attempt, through the back door, to re-visit an order of the apex court in the high court."
About Maliwad's contention that the same aspect of Zakia's complaint is the subject matter of Nanavati-Shah inquiry commissions, Teesta said, "Zakia's complaint, if found by SIT to be substantive, could result in the registration of a criminal complaint against one, some or all the 62 accused."
"Thereafter," she added, "investigations, if substantiated, could result in committal, charges being framed and a full-fledged prosecution. Results of the Nanavati-Shah Commission, at best, could mean a report with recommendations and findings under the Commission of Inquiry Act, which is not binding on any government, state or central."
Zakia Jafri: It's abuse of the process of law
"(If) Kalu Maliwad had any grievance against the order of supreme court, the same could have been placed before the apex court. The petitioner, it appears, has been misguided into filing the present writ petition before the high court. Thus, the petition itself is an abuse of the process of law and on this ground alone, needed to be dismissed," says Zakia. About Maliwad's argument regarding over four years delay in filing the complaint, Zakia said, "My complaint is not only with regard to the incidents on February 27 and 28, 2002, but encompasses the well-planned and sinister efforts by the state of Gujarat to subvert the entire process of justice and the criminal justice system thereafter. A delay in filing of complaint can be explained by the fact that the complaint has been filed only after obtaining all relevant material from the Nanavati-Shah commission. The offence came to light over over a span of years."
State government's reply
Dhananjay Dwivedi, additional secretary (law and order), has, in his affidavit, not touched the issue of prayer for quashing proceedings by SIT, but sought to delete a few averments in Teesta's affidavit. Dwivedi tried to dispute allegations that "only in July 20, 2004, after a new government was elected at the Centre that the Gujarat government hastily expanded the terms of reference of the Nanavati-Shah Commission".
Government has termed the allegation as "false, frivolous and vexatious," and urged the court to "direct the deponent to delete the said paragraph while hearing the petition on merit." It also objected to the term - much discredited in public eye - used by Teesta for Nanavati-Shah Commission and sought to delete such averment.
Kalu Maliwad's plea
In response to SIT's affidavit filed on June 16, Maliwad said, "The SIT is exceeding and also proclaiming and proposing to act in excess of its powers and authority under the supreme court's order of April 27, 2009." He further said, "The supreme court has not authorised or empowered SIT to investigate the complaint and the words 'look into the matter and take steps as required in law and give its report' do not mean 'investigate'."
Maliwad also says "The SC words… is not synonymous with 'register a case and investigate'. The said order does not expressly authorise or empower SIT to investigate the complaint. The petition challenges not only the acts done, but also acts threatened by the SIT."
He also defines investigation, "Examination or interrogation of persons or witnesses, and recording their statements, which may be used as evidence in the trial, is part of investigation and not of preliminary enquiry. Interrogation of an accused or his arrest is not part of preliminary inquiry."
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