'Like A Tinder Box'
Text of a recent letter by Gujarat Congress leader and MLA Arjun Modhvadia to Special Investigation Team (SIT) Chairman R.K. Raghavan.
Dear Shri Raghavan,
27th of February, 2002 will go down in the history as one of the darkest day of post- independent India. This was a day when 59 innocent lives were snuffed out by the mindless and despicable ants of violence committed by a group of misguided criminal elements. Undoubtedly, when an event of this nature occurs in the jurisdiction of civil servants empowered by law to take steps not only to deal with but also to contain it, there is a laid down procedure which Executive Magistrate and police officers all over the country follow.
The killing of 59 persons in that unfortunate coach of Sabarmati Express was an act of murder for which a crime was registered at Godhra Railway police station. As per the law of this land, the inquest Panchnama under Section 174 Cr.P.C, is to be drawn by the local police at the same place. In the same manner, as per the prescribed procedure, the postmortem of the dead bodies is required to be conducted at the nearest hospital. You may like to refer to Gujarat Police Manual Volume 111, Rule 144, wherein it is clearly laid down that the Police Station Officer or a Police Officer not below the rank of Sub Inspector will send the body to the nearest Civil Surgeon or any other qualified medical man for post-mortem examination. For your ready reference, the said Rule is reproduced below:
144. Post mortem Examination when necessary:- (1 ) In any case under investigation, in which a person has met with his death, the Police Station Officer or a Police officer not lower than a Sub-inspector is empowered by Section 174 (3), Criminal Procedure Code, to send the body to the nearest Civil Surgeon or other qualified medical man for postmortem examination…
Your attention is also drawn to paragraph 736 of the Bombay Civil Code, part-l, wherein again it is clearly provided that it is the duty of the police to take the dead body to the nearest dispensary where a Medical Officer with proper instruments and appliances is available. The said provision is reproduced below for your ready reference:
“736. Police to send dead bodies to the nearest Hospital or dispensary.- It is ordinarily the duty of the Police to take a dead body to the nearest dispensary provided with the requisite accommodation where a medical officer with the proper instruments and appliances is to be found. Magistrates and Superintendents are required to arrange that medical officers are not summoned from their dispensaries except when it is impossible or for special reasons undesirable to send a corpse to a dispensary.”
If you will now examine the provisions of Section 174 Cr.P.C, even there, it requires that it is the nearest Executive Magistrate who is empowered to hold inquests. The requirement of the nearest magistrate to hold inquest with reference to the aforesaid section of law is also embodied in section 176 of the Code of Criminal Procedure. Thus, the criminal procedure of this country required:
(a) That crime is registered in the police station having jurisdiction. This was done in this case.
(b) That in case an inquest panchnama is to be drawn by the Executive Magistrate, it is the nearest Executive Magistrate who should do the inquest. With the District Magistrate being informed, this condition was fulfilled in this case as well.
(c) That only an officer-in- Charge of the police station where the person has been killed can proceed under Section 174 critic. This was done in this case also.
(d) That the postmortem would be conducted by the nearest Medical Officer. This was done in this case.
(e) That immediately after the postmortem, and after the legal formalities are completed, the dead bodies are handed over to the nearest relative. This was not done in this case.
The persons responsible for the above intentional procedural deviation are punishable under section 166, 186 of IPC.
You may read with profit the provisions of the Gujarat Police Manual VoI.III as provided in Rule 144, 145, 223 and 224 where you will find salutary provisions recommending a quick dispatch of the bodies for postmortem to the nearest hospital, prohibition of taking photographs which are revolting in nature and quick disposal of dead bodies keeping in mind the sensibilities of the victim’s relatives. And yet in violation of statutory rules on that fateful day, all the dead bodies were transported to Ahmedabad.
Clearly, 59 dead bodies could not have moved more than 200 kilometers to Ahmedabad without the knowledge of the Chief Minister, the Chief Secretary and the Director General of Police. Clearly, an intentional violation of procedure was done for the sole purpose of inflaming the passions of the people especially in view of the call for Gujarat Bandh given by the political party which constituted the government in Gandhinagar. In violating a laid down procedure, legal malice is established beyond doubt and when this legal malice has manifested itself into wide spread violence resulting in massive carnage across the state, elements of criminal conspiracy are clearly established.
It is pertinent to note that of the 59 dead bodies, nearly 20 were of persons belonging to places outside Ahmedabad city. Among 59 dead bodies, thus, majority were of persons from places outside Ahmedabad city.
When this nation dedicated to itself the Constitution of India on 26 January, 1950, it adopted forever the rule of law. For safeguarding the various rights of the citizens of this country, the Supreme Court of India is also created by the same Constitution. This apex court formed an SIT choosing you to be the Chairman in light of your manifold experiences as a police officer, more particularly your directorship of the CBI. The service to which you once belonged was created under Article 312 which indicates the faith the framers of the constitution had on members of All India Service. It is, therefore, not understood as to how a person of your experience could have missed the point that the act of shifting 59 bodies to Ahmedabad was a deliberate act which resulted in massive riots across the state. The Additional Director General (Intelligence) through a FAX addressed to Police Commissioner message dated 27 February 2002, Ahmedabad and copy marked amongst others to PS to Chief Minister conveyed that the decision to bring the dead bodies was taken at a meeting chaired by the Chief Minister. This message also spoke about of the local cadres of the BJP/Bajrang Dal being massively mobilized for enforcing the VHP/BJP Bandh.
I have one simple question for you – Is it not the normal practice and is it not the law that all the persons who are directly or indirectly involved in development of circumstances which have resulted in a crime, to be arraigned as an accused? In the CBI, have you not known of scores of cases where even for a supervisory lapse at the tertiary level, the agency has decided to arrest them? The answer without doubt is available in the public domain and can only be in the affirmative.
I would also like to bring to your notice the deposition of Shri P C Pande, the then Commissioner of Police, Ahmedabad City, before Justice Nanavati Commission on 18th August 2004. For your perusal the relevant portions are reproduced below:
“….. had not taken the decision of bringing the dead bodies to Ahmedabad. As I believe that the decision might have taken at the top level in the Government and it has not necessary for me to interfere in that decision……”
“….. When I know that about 58 bodies were being brought to Ahmedabad or that they have already brought, at that time, I had a feeling that looking to the communal situation of Ahmedabad, it is ... sensitive and like a Tinder Box and therefore, in the prevailing circumstances, if these dead bodies are brought to Ahmedabad, then possibly it will create serious impacts…”
ACS Home Shri Ashok Narayan, in his cross examination before the Nanavati Commission had also confirmed that decision to bring dead bodies to Ahmedabad city was taken at higher level. In this higher level above him are the Chief Secretary, MOS Home and CM.
This alone establishes the culpability of the Chief Minister in the criminal conspiracy of orchestrating massive riots across the state of Gujarat. Here is a testimony by an individual who not only was the Commissioner of Police of Ahmedabad city at the relevant time but was chosen by the Chief Minister to be the Director General of Police, Gujarat State. An unjaundiced eye would plainly see the commission of an offense under section 153 A IPC in the least, and more importantly conclude that the ingredients of criminal conspiracy to commit intentionally a dastardly crime of genocide are present.
There is yet another aspect to which I wish to address you. It used to be said about you that you are god fearing and a fair person. I have had the occasion to read some of the articles that you have written for a section of the press where you have waxed eloquent about propriety and decency.
When a person is killed whether due to an act of crime or as an accidental death or as a natural death, it is the desire of the relatives to be handed over the body so that a dignified funeral can be organized. Without doubt, the person who has died during his/her life time would have also thought that when the time has come to leave this earth, it would be done quietly and solemnly amongst relatives. Why do we cover the mortal remains of the recently deceased? Do we not cover the face of a victim of horrendous accidental death to prevent the relatives from being shocked at the disfigured remains of the loved ones? And yet in complete disregard of the sensitivities of the relatives of the victims, and cannons of humanitarian, ethics and morality, these bodies were taken to Ahmedabad and paraded not only before the members of public but also for the media to report. I have often thought as to how I would have felt if a relative of mine had been killed similarly and instead of quickly completing the legal formalities and handing over the body, it is taken 200 kilometers away, not because it is required so, but because a decision which was taken by the Head of the Government for the reason that are obvious to all except the blind. You may like to pause for a moment and think as to how you would have felt if a self seeking politician sitting in the state capital had directed the authorities of taking the body of any relative of yours to a distant place instead of handing it over to you as prescribed by the law. You also know that many of these dead bodies were of people not belonging to Ahmedabad city.
After these 59 bodies had been taken to Ahmedabad Sola Hospital and after having been displayed to the media and all sundry, these bodies were handed over to Shri Jaideep Patel of the VHP. This was in violation of the spirit embodied in section 176 (4) which itself provides that when an inquest is done, the relatives of the deceased would allow to remain present. Do you not see in this the ingredients of a criminal conspiracy which has resulted in severely dividing the Gujarat society on communal lines? It is quite relevant to note that the Hindu Dharmasastra and Agni Purana dealing with disposal of dead bodies had categorically laid down that dead bodies should be cremated for its earliest merger with Panchbhutas – 5 elements and they should not be used for any other purpose. By parading dead bodies in Ahmedabad, the CM had violated the basic tenets of Hindu religion also.
We have the example of USA, which faced the unprecedented tragedy of demolition of World Trade Centre Towers in New York and death of nearly thousands of people, the American Govt. did not permit the display, exposure or photographing of any of the dead bodies of casualties and injured people. Significantly, the Govt. also did not allow criminal elements or resist to indulge in violence against any citizen of America, through mob action or otherwise.
As a police officer, you should ask whether violating the provisions of the criminal procedure and those of the police and medical department as a result of a meeting which was chaired by the Chief Minister in Gandhinagar indicates a mens rea to commit the crime of instigating, aiding and abating communal riots which resulted in mass murders across the state.
As a human being, you should ask how insensitive it was for the bodies being taken to Ahmedabad to parade them before the public at large and the media in particular.
And as a Hindu, you should ask whether according to Hindu traditions and customs are dead bodies cremated at as early as possible or whether they are dispatched as a commodity for display, to serve the interests of a certain politician who has a diabolic agenda.
As per regulation any dead body involved in crime or accident should be handed over only to the next of kin as per the hierarchy of relationship viz. wife/husband, mother/father, brother, other relatives and so. But, violating those specific directions in Revenue and Police Manual, the CM had ordered for handing over dead bodies to VHP State leader Jaideep Patel.
On the 12th of September 2011 the Hon’ble Supreme Court of India, while disposing the petition filed by Zakia Jafri has directed the SIT to take into account all the material while filing a report under Section 173 (2) critic. You have been entrusted with the task of unraveling one of the worst crimes that could ever have been committed with the connivance of the official apparatus. You owe it to the society, which has given you so much, to do the right thing. The report that you will submit to the court, as directed by the hobble Supreme Court, will either uphold the majesty of law or result in its annihilation forever.
I do not know how you can avoid taking cognizance about facts and evidence of the charge of CM Modi and all those government officials, who intentionally violated structural statutory stipulation about handing of dead bodies involved in crime/accident and made these mere exhibition materials for aggravating communal frenzy in Ahmedabad city. Those responsible for all these ants of commission and omission are liable to be charged under section 166, 186, 187 of IPC read with section 120-B of IPC. Your action of exonerating Mr. Narendra Modi and his supporters from culpability of such heinous crime will make Indian Criminal Justice system, a butt of ridicule, in the eyes of whole world.
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