Supreme Court of India
SANJIV RAJENDRA BHATTversusUNION OF INDIA & ORS.
- Citation
- 2015 INSC 767
- Decided
- 13 October 2015
- Disposal
- Dismissed
- Bench
- H L DATTU
Holding
The Court held that there is no case for constituting a fresh SIT or transferring the investigation, and no criminal contempt is established; the writ petitions are dismissed.
Summary
Senior IPS officer Sanjiv Rajendra Bhatt filed writ petitions under Article 32 seeking transfer of investigations into two criminal cases to the CBI or a fresh Special Investigation Team (SIT), alleging that he was present at a 2002 Gujarat meeting, that the Court‑appointed SIT leaked confidential material, and that his email account was hacked. The Court examined his conduct, noting that he had remained silent for nine years about the meeting, failed to disclose relevant emails at earlier stages, and that the existing SIT had already investigated and found he was not present at the meeting. The Court held that there was no basis to constitute a new SIT or to transfer the investigation, and that the allegations did not amount to criminal conspiracy or contempt. Consequently, the petitions were dismissed and the trial court was directed to proceed with the pending charge‑sheet.
Issues considered
- The petitioner’s entitlement to have the investigation transferred to the CBI or a fresh SIT.
- Whether the allegations of SIT leaking confidential information and email hacking constitute criminal conspiracy.
- Whether the petitioner’s conduct amounts to criminal contempt of court.
- The scope of the pending criminal cases and whether a fresh SIT is warranted.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 164, s. 173(2), s. 173(8)
- Constitution of Indias. Article 32
- Contempt of Courts Act, 1971s. 20, s. 2(c)(iii)
- Indian Penal Code, 1860s. 189, s. 193, s. 195, s. 341, s. 342
- Information Technology Acts. 66
Subjects
Article 32Special Investigation TeamContempt of CourtClean hands doctrineTransfer of investigationGujarat riots 2002Email hackingCriminal conspiracyCriminal contemptCBI
Judgment
[2015] 12 S.C.R. 498
A SANJIV RAJENDRA BHATT
v.
UNION OF INDIA & ORS.
(Writ Petition (Criminal) No.135 of 2011)
B
OCTOBER 13, 2015
[H.L. DATTU, CJI AND ARUN MISHRA, JJ.]
Constitution of India, 1950 -Art. 32 - Entrustment of
c investigation to SIT - FIR by KD u/ss. 189, 193, 195, 341
and 342 /PC against the petitioner-/PS officer that he made
false averments and filed false affidavit - Registration of/-
CR on basis thereof- FIR also lodged by then AAG of the
State of Gujarat uls. 66 of the Information Technology Act
D regarding hacking of his e-mail account and tampering of
the same by the petitioner- Registration of II-CR on the basis
thereof - Writ petitions by petitioner seeking transfer of
investigation to CBI or SIT(Special Investigation Team)
outside control of CM of Gujarat -Allegations by petitioner
·E as to involvement of the then Chief Minister of the State of
Gujarat in riots of 2002; that he was present in the meeting
convened by the Chief Minister on the night of 27.02.2002
. and the FIR was a counter blast to the action taken by the
petitioner; and that a complaint filed by JJ in 2006, pertaining
F to 2002 riots was ordered to be looked into by SIT by this
Court- Held: Petitioner did not come to this Court with clean
hands-He kept quite for a period of9 years as to the factum
of meeting dated 27. 02. 2002 - No case made out for
G investigation by SIT relating to preparation of affidavit or
hacking of e-mail account and tampering with it -Allegation
that the SIT had been leaking very sensitive and confidential
details pertaining to the ongoing investigation to the then AAG
of Gujarat, totally false and baseless-A/so no case is made
H out of criminal conspiracy - It does not appear that the e-
498
SANJIV RAJENDRA BHATT v. UNION OF INDIA 499
mail exchange between the then AAG and oiher functionaries A
tantamounts to causing prejudice or amounts to substantial.
interference in any other manner in due course of justice -
Further, not a case of scandalizing the court or in any manner
affecting fair decision of the court or tending to bring the court
into disrepute or disrespect which tantamount to criminal . B
contempt- Contempt of Courts Act, 1971 - s.2(c)(iil).
Dismissing the writ petitions, the Court
HELD: 1.1 The petitioner has not come to this Court c
with clean hands. The petitioner kept quiet for a period
of 9 years as to the factum of the meeting. 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 o
ascertain those facts. Petitioner did not state fact of the
meeting 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 E
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. [Para 45) [540-H; 541-A-C)
F
1.2 As per averments made by the petitioner, he
accessed the e-mails of the then AAG in the years 2009
and 2010. In case these e-mails were in his possession,
it was the bounden duty of the petitioner to disclose them
at t~e relevant time in appropriate proceedings at an G
appropriate stage but he did not do so. 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 . H
500 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 14.4.2011 which he had filed in 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
B before Justice Nanavati Commission also petitioner
failed to state about the e-mails. When he has sent thee-
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
C also is not understandable. The counsel for tile petitioner
in response to the query made by the court why the
petitioner kept quiet as to e-mails on said occasions,
fairly and rightly conceded that it was the duty of the
petitioner to state on the said occasions as to the e-mails
0
but their explanation that petitioner was ultimately
pushed to the wall by registering a criminal case at the
behest of KD then he disclosed the e-mails, is also not
acceptable as the petitioner's statement before Justice
E Nanavati Commission continued even after the date of
registration of offence. The said explanation does not
appear to be sound one. The petitioner 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
F 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
G overall conduct of the petitioner does not inspire
confidence. [Para 47] [542-G-H; 543-A-G]
1.3 The scope of inquiry in the case I-CR. No.149/
2011 on the basis of the complaint lodged by KD is
H whether his affidavit was obtained by the petitioner
SANJIV RAJENDRA BHATT v. UNION 0F INDIA 501
under coercion and in the circumstances narrated by A
him in the First Information Report. Whether the petitioner
was present in the meeting dated 27.2.2002 and what
transpired in that meeting, is not the issue within the
ambit and scope of I-CR. No.149/20.11-. It is simply a case
in which question has to be gone into whether the . B
affidavit dated 17.6.2011 was obtained by the petitioner
in the circumstances alleged by KD 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 C
the said question cannot be said to be open for
investigation at all considering the scope of the
complaint lodged by the then AAG. [Para 48)(544-B-E]
1.4 The SIT in its report submitted to the trial court D
came to the conclusion that the claim of the petitioner
that he was present on 27.2.2002 in meeting held at the
residence of the then Chief Minister is not correct. The
SIT made the investigation into the said aspect and SIT
in its counter affidavit also clearly stated that it was found E
after investigation that the petitioner was not present in
the meeting dated 27.2.2002. Thus, with respect to the
investigation into the said aspect, the matter stands
concluded as to the petitioner's presence in the meeting F
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 said aspect. [Para 50] [545-H; 546-A-C]
1.5 The allegation that the SIT had been leaking very G •
sensitive and confidential details pertaining to the
ongoing investigation to the then AA<3 of Gujarat, is
totally false and baseless. Two e-mails referred to by the
petitioner were sent by GZ, IPS, Additional DG of Police,
H
502 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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 IG (Crime) was incharge. She wrongly used the
B 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.
C Petitioner made deliberate attempt to mislead this Court
and enclosed only the covering text of the e-mails and
intentionally avoided the enclosures because the same
would have exposed falsity of his stand. Thus, the
D petitioner is guilty of suppressio veri and suggestio falsi.
He 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
E unfortunate that on the one hand petitioner prayed for
appointment of SIT and on the other did not spare SIT
appointed by this Court and made false allegations
against it. The conduct of the petitioner cannot be said
to be desirable. [Para 51] [548-F-H; 549-A-D]
F 1.6 There are various reasons for which SIT
investigation is not warranted at all in the said case. The
scope of the case is only whether the petitioner had
obtained the affidavit of KD in an illegal manner for which
offence case has been registered. In the case
.G chargesheet has already been filed after investigation
by the concern~d police to the competent court. In the
counter affidavit filed by respondent No.4, chargesheet
was placed on record, the statements of various
witnesses were recorded including the scientific
H evidence of mobile-tower, laptop etc. Statements of eye
SANJIV RAJENDRA BHATTv. UNION OF INDIA 503
witnesses under section 164 Cr.PC were also recorded. A
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 B
and petitioner's mobile established that the complainant
was present at the residence of the petitioner at the time
stated in the FIR and mobile tower location of rival
political luminaries and advocate who happens to be the
Chairman of Legal Cell of rival political party. Laptop .of C
the said advocate was seized and laboratory had
confirmed that affidavit was prepared on the same. Once
the chargesheet has been filed to the knowledge of the
petitioner before 4 years, it was not questioned and no
0
attempt was 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 E
unnecessarily tried to wid.en 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 KO was obtained. Once the
chargesheet has been filed the court has to proceed in F
accordance with law in the matter. [Para 52) [549-F-H;
550-A-E)
1. 7 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 G
hacking of e-mail account and t~mpering 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. The accused has no right H
504 SUPREME COURT REPORTS [2015] 128.C.R.
A with reference to the manner of investigation or mode of
prosecution. 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. This Court has already appointed SIT
which has looked into various allegations raised by JJ
B 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 9f e-
mail account in II-CR. No.3148/2011 and tampering with
e-mails, investigation is to be based on the scientific
C 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
0
aspects it would be open to the petitioner to question it
at an appropriate time before an appropriate forum in
accordance with law.[Para 53, 54, 56, 57] [551-B-C, E; 552-
E; 553-D-F]
E Sakiri Vasu v. State of U.P. & Ors. (2008) 2 SCC
409: 2007 (12) SCR 1100; Union oflndia &Anr.
v. WN. Chadha (1993) Supp 4 SCC 260: 1992
(3) Suppl. SCR 594; Ms. Mayawati v. Union of
India & Ors. (2012) 8 SCC 106: 2012 (7) SCR
F 33; Dinubhai Boghabhai Solanki v. State of Gujarat
(2014) 4 sec 626: 2014 (3) SCR 932;CBI v.
Rajesh Gandhi (1996) 11 SCC 253; Competition
Commission of India v. SAIL & Anr. (2010) 10 SCC
744: 2010 (11) SCR 112; Janta Dal v. H.S.
G Choudhary (1991) 3 sec 756: 1991 (3) SCR
752; Babubhai v. s_tate of Gujarat (2010) 12 SCC
254: 201 O (10 ) SCR 651; Zahira Habibulla
Sheikh v. State of Gujarat (2004) 4 SCC 158: 2004
(3) SCR 1050 ; Rubabbuddin Sheikh v. State of
H
SANJIV RAJENDRA BHATT v. UNION OF INDIA 505
Gujarat & Ors. (2010) 2 SCC 200: 2010 (1) A
SCR 991; Narmada Bai v. State of Gujarat & Ors.
(2011) 5 sec 79: 2011 (5) SCR 729; CBI v.
Amitbhai Anilchandra Shah (2012) 10 SCC 545:
2012 (8) SCR 945; R.S. Sodhi, Advocate v. State
of U.P. & Ors. (1994) Supp 1 SCC 143; Vineet B
Narain & Ors. V Union of India & Ors. (1996) 2
SCC 199: 1996 (1) SCR 1053; Union of India &
Ors. V Sushi/ Kumar Modi (1998) 8 SCC 661;
M.C. Mehta v. Union of India (2007) 1 SCC 110:
2006 (9) Suppl. SCR 683; Centre for Public c
Interest Litigation & Ors. V Union of India & Ors.
(2011) 1 SCC 560; Shahid Ba/wa v. Union of India
& Ors. (2014) 2 sec 687: 2013 (11) SCR 51;
Manoharlal Sharma v. Principal Secretary & Ors.
D
(2014) 2 SCC 532; NHRC v. State of Gujarat
(2009) 6 SCC 342; Ram Jethmalani & Ors. V
Union of India & Ors. (2011) 8 SCC 1: 2011 (8)
SCR 725 - referred to.
1.8 No case is made out to constitute SIT. No doubt E
about it "be you ever so high the faw is above you" is a
well accepted principle but in the instant case the
conduct of the petitioner cannot be said to be ~bove
board. Neither it can be said that he has come to the court
with clean hands. Petitioner was a high ranking officer F
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. [Para 59].
[555-G-H]
G
1.9 There is no need to monitor the case any further
since 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. The H
506 SUPREME COURT REPORTS [2015] 12 S.C.R.
A submission thatthe Court can transfer investigation after
chargesheet is filed in extraordinary cases is untenable.
[Paras 60, 61] [556-A-D]
Jakia Nasim Ahesan Jafri &Anr. v. State of Gujarat
s & ors. (2011) 12 sec 302: 2011 (11) SCR 365;
Rubabbuddin Sheikh v. State of Gujarat & Ors.
(2010) 2 SCC 200: 2010 (1) SCR 991; Narmada
Bai v. State of Gujarat & Ors. (2011) 5 SCC 79:
2011 (5) SCR 729; State of Punjab v. Central
C Bureau of Investigation & Ors. (2011) 9 SCC 182:
2011 (11) SCR 281; Bharati Tamang v. Union of
India & Anr. (2013) 15 SCC 578: 2013 (14)
SCR 525 - referred to.
D 1.10 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
E 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
gentl~man-for his opinion it would not subvert the course
of justice in any manner. When certain pleading is to be
F filed in court there is no legal bar on consultation with
the appropriate persons of confidence or having
requisite knowledge. [Para 63] [556-H; 557-A-B]
1.11 In the reports placed on record by petitioner
G 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
H person. They did not contain such material disclosure
SANJIV RAJENDRABHATTv. UNION OF INDIA 507
of which may subvert the course of justice. No case is A
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 said disclosure of SIT
reports. Thus, charge of criminal contempt cannot be
said to be taken home successfully. Petitioner has not B
been able to substantiate that the said 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 subver'f
the course of justice or action otherwise amounts to·
interference with administration of justice. The petitioner ·
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 D
to be confidential petitioner also used them and even
sent e-mail particulars ofthethenAAG to media channels.
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 E
in the circumstances he was placed, has been
unnecessarily adversely commented upon, the
accusation of criminal contempt is not at all made out.
[Para 64) [557-F-H; 558-A-D]
F
National Human Rights Commission v. State of
Gujarat & Ors. (2009) 6 SCC 767: 2009 (7)
SCR 236 - referred to.
1.12 Merely sending some representation which
was to be submitted to the President and Prime Minister G
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 H
508 SUPREME COURT REPORTS [2015] 12 S.C.R.
A whatsoever, it cannot be said that sharing of information
tantamount to criminal contempt. [Para 65] [558-E-F]
Rachapudi Subba Rao v. Advocate General,
Andhra Pradesh (1981) 2 SCC 577: 1981 (2)
s SCR 320; Dr. D.C. Saxena v. Hon'ble the Chief
·Justice of India (1996) 5 SCC 216: 1996 (3)
Suppl. SCR 677; Rizwan-Ul-Hasan &Anr. v. State
of UP AIR 1953 SC 185: 1953 SCR 581 -
referred to.
c
1.13 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
o course of justice. It is not the case of scandalizing the
court or in any manner affecting fair decision of the c~urt
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
E which tantamount to criminal contempt under section
2(c)(iii) of the Contempt of Courts Act. [Para 69][562E-F]
1.14 As regards the prayer to initiate criminal
contempt on the basis of documents filed, on merits no
F case is made out of criminal contempt. 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. [Para 70][562-G-
H; 563-A]
G
1.15 Since there was interim stay, as charge-sheet
has been filed in I-CR. No.14912011, trial court to proceed
further in accordance with law, and investigation in 11-
CR. No.3148/2011 be made expeditiously in accordance
H with law. [Para 71] (563-B]
SANJIV RAJENDRA BHATT v. UNION OF INDIA 509
Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC A
114: 2009 (16) SCR 111 - referred to.
Case Law Reference .
2009 (7) SCR 236 Referred to. ·Para 30
B
2011 (11) SCR 365 Referred to. Para 49
2009 (16) SCR 111 Referred to. Para 53
2007 (12) SCR 1100 Referred to. Para 54 c
1992 ( 3 ) Suppl. SCR 594 Referred to.· Para 54
2012 (7) .SCR 33 Referred to. Para 54
2014 (3) SCR 932 Referred to. Para 54 D
(1996) 11 sec 253 Referred to. Para 54
2010 (11) SCR 112 Referred to. Para 54
1991 ( 3) SCR 752 Referred to. Para 55 E
2010 (10) SCR 651 · Referred to. Para 56
2004 (3) SCR 1050 Referred to. Para 56
2010 (1) SCR 991 Referred to. Para 56 F
2011 (5) SCR 729 Referred to. Para 56
2012 (8 ) SCR 945 Referred to. Para 56
(1994) Supp 1 sec 143 Referred to. Para 57 G
1996 (1) SCR 1053 Referred to. Para 58
(1998) 8 sec 661 Referred to. Para 58
H
510 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 2006 (9) Suppl. SCR 683 Referred to. Para 58
(2011) 1 sec 560 Referred to. Para 58
2013 (11) SCR 51 Referred to. Para 58
B (2014) 2 sec 532 Referred to. Para 58
(2009) 6 sec 342 Referred to. Para 58
2011 (8) SCR 725 Referred to. Para 58
c 2011 (11) SCR 281 Referred to. Para 61
2013 (14) SCR 525 Referred to. Para 61
1981 ( 2) SCR 320 Referred to. Para 66
D
1996 (3) Suppl. SCR 677 Referred to. Para 67
1953 SCR 581 Referred to. Para 68
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
E (Criminal) No. 135 of 2011
[UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDIAJ
WITH
F
W. P. (CRL.)A. NO. 204 OF 2011
Ranjit Kumar, S. G., Maninder Singh,ASG, Indira Jaising,
Prakash Jani, C. S. Vaidyanathan Shankar, Vikas Singh, L.
G Nageshwara Rao, P. H. Prakesh, Bhumika Choudary, Rohan
Kothari, Kabir Ghosh, Varinder Kumar Sharma, Prashant
Bhushan, Neha Rathi, Aparna Bhat, Tanima Kishore, Binu
Tamta, Rajiv Nanda, Rajiv Singh, B. Ragunath, Sushma Suri,
T. N. Razdan, B.V. Bairam Das, Kabir Hathi, Manisha Luvkumar,
H Rajat Nair, Nalin Kohli, Rohan Jatley, Prabhas Bajaj, Manan
SANJIV RAJENDRABHATTv. UNION OF INDIA 511
Popli, Hemantika Wahi, Harish Vaidyanathan Shankar, Nisha A
Mohan Das, Ajay Kumar Talesara, S.S. Shamshery, lshu
Prayash, R.C. Kohli, Preeti Bhardwaj, Aishwarya Bhati, T.
Gopal for the appearing parties.
The Judgment of the Court was delivered by B
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 r
the basis of FIR lodged by Mr. K.D. Panth at Ghatlodia Police
Station, Ahmedabad, (Rural), under sections 189, 193, 195,
341 and 342 of the Indian Penal Code (for short "IPC") to any
independent agency like CBI outside t-he control of the State
Government. An application being Criminal Misc. Petition o
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 nova
investigation in the aforesaid FIR. Prayer had also been made
to investigate into the additional documents filed on 29.7.2011. E
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 F
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 G
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 Vastra1:rnr P.S.,
Ahmedabad, Gujarat, under section 66 of the Information
Technology Act, (for short ""the IT Act") to any independent H ·
512 SUPREME COURT REPORTS [2015] 12 S.C.R.
A agency like the CBI outside the control of the State
Government. Similarly Crl.Misc. Petition No.15875/2015 for
aforesaid directions and for impleadment as respondents -
Crl.Misc. Petition No.15877/2015 has been filed.
B 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
c 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
D 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
E 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
lntellige_nce Bureau. He used to look after matters pertaining
to internal security of the State, Border Security, Coastal
F Security, security of vital installations, counter intelligence and
WIP security including that of the Chief Minister. He has alJeged
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.
G 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
H had made a family trip to Goa. At that time, it is alleged, at the
SANJIV RAJEJ\lORABHATiv. UNION OF INDIA 513
[ARUN MISHRA, J.)
request of the then AAG, the petitioner had accessed his e- A
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
fi~. B
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 C
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. D
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 seve\ral
occasions. During the period from February to June, 2010, he
came across e-mail exchanges which clearly indicated ~n E
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 F
the SIT. He was advised to meet the then Chief Minister to
clear the air. In the intervening night of 3rd and 4th Novembert,
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 G
was repeated on the intervening night of 81h and 91hNovember,
2010 and a steel almirah which could not be broken open on
the earlier occasion, was broken and searched. FIR (P-6) was
lodged at Navrangpura Police Station as I-CR No.456/2010 ..
The petitioner requested for adequate security cover vide letter· H
514 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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 IT)ade by the amicus curiae appointed by this
B 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
C 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 p~titioner, the SIT expressed its inability to
encompass the details indicative of larger conspiracy of official
orchestration behind Gujarat riots of 2002. The SIT self-
D restricted the scope of FIR under investigation. The petitioner
had taken Mr. K.D. Pa nth 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. Pa nth
E including Mr. Tara Chand Yadav who could have corroborated
. the fact of petitioner's presence in the meeting. Later on, the
SIT examined Mr. K.D. Panth. While recording statement, he
was subjected to intimidation and coercion by the SIT. The
F 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
G 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
H summoned by Justice Nanavati and Mehta Commission of
SANJIV RAJENDRA BHATI v. UNION OF INDIA 515
[ARUN MISHRA, J.]
Inquiry (for short 'Justice Nanavati Comll)ission') directing him A
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 B
Gandhinagar (Ahmedabad) on 18/19.6.2011.
7. The petitioner then informed Mr. K.D. Panth and Mr.
T.C. Yadav about the forthcoming visit of the amicus curiae.
The petitioner suggested to Mr. T.C. Yadav and Mr. K.D. Panth C
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 D
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 E
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 F
the Notary Public on 17.6.2011. A written complaint was
prepared atthe 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 G
State of Gujarat intimidated to the effect that the petitioner was
crossing the line. Certain applications were filed in the ongoing
criminal sessions cases to summon the petitioner under section
311 as a witness in May-June, 2011.
H
516 SUPREME COURT REPORTS [2015] 12 S.C.R.
A The FIR has been registered againstthe 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
s a/ia 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/-
C 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
D 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.
E This Court has considered all the allegations made by
petitioner against them in SLP (Crl.) No.1088/2008 monitored
by a ~pecial Bench of this Court.
9. Investigation into the riot cases of 2002 is completed
F 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 Gu/berg 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
G 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.
H While petitioner was in connivance and constant consultation
SANJIVRAJENDRABHATiv. UNION OF INDIA 517
[ARUN MISHRA, J.]
with the adversary political party and vested interest groups, A
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-mai.1 (P-4) filed by the petitioner, attachments indicate that
. it was with respect to Sohrabuddin encounter, the petitioner
has made false suggestions and allegations as to the contents B
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 c
guilty of hacking the e-mail account of the the.n MG 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 D
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 E
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 F
receiving packages and materials from the leader of rival
political party in Gujarat. He has referred to rival political party
as. his own party. While being cross-examined by the
opposition parties before Justice Nanavati Commission, G
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 H
518 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
B 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.
c
12. It is further contended by the State that Mr. K. D. Pa nth
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
D by the petitioner. The allegation regarding destruction of
records has also been denied. The record of category 'D' is
maintained only for 3 years that is log book of the vehicle and
the same is not available with the State Government as the
copies are maintained by the concerned officers
E 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.
F 13. In the counter affidavit filed on behalf of Mr. K.D. Panth,
respondent No.4, it !s contended that the investigation in I-CR.
No.149/2011 is over. He has not received any award for
working late in the niqht on 27 .2 .2002. The petitioner has made
false averments. Petitioner had taken him to the residence of
G the President of Gujarat State Unit of main rival political party.
The incident is established by way of sdentific evidence
reflected in chargesheet. He was in Maharashtra from
25.2.2002 to 28.2.2002. He had visited notary/advocate at
H Bombay (Maharashtra) for the purpose of getting the translated
SANJIV RAJENDRA BHATT v. UNION OF INDIA 519
[ARUN MISHRA, J.)
documents notarized/certified. Petitioner has falsely asserted A
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 B
at his residence. Petitioner had taken him to President of the
Gujarat State rival political party, wherefrom he was taken to
the office of the co-accused, Chairman of the Legal Cell of the
said party and was permitted to leave early in the morning
hours after preparation of affidavit dated 17.6.2011. All the C
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.
D
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 bf Gujarat. There were 3 departmental E
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 F
against him. Chargesheet was served upon him on 29.12.2010
for irregularities in the Police recruitment under his
Chairmanship as SP, Banaskantha. In the year 1990, the
petitioner allegedly committed atrocities on peaceful and
innocent villagers belonging to a place called Jamjodhpur in G
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 H
520 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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 s·aid case was
pending for framing charges against the petitioner. The victim
B 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
C NDPSActwhile 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 1208, 195, 196, 342,
347, 357, 365,388, 458, 482 IPC and sections 58(1) and 58(2)
D of the NDPS Act. On completion of the investigation, a
chargesheet had been filed against petitioner in the Court of
Special Judge under the NDPSAct at Jodhpur. The allegations
of the complainant advocate are that he had been occupying
property as a tenant in Pali, Rajasthan, which was owned by
E 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
F 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
G 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
H by the petitioner under the NDPS Act and imposed a fine of
SANJIV RAJENDRABHATTv. UNION OF INDIA 521
[ARUN MISHRA, J.]
Rs.1 lakh on the Government of Gujarat as the monetary relief A
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. B
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 c
regard SIT has already submitted its report in the Court of Xlth
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 D
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 E
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 F
avoided furnishing of the enclosures with the e-mails. The then
AAG of Gujarat did not have anything to do-with the ongoing
investigation with SIT. Sohrabuddin encounter was investigated
by State Police, CID (Crime) which was earlier being
supervised by Smt. Geetha Johri as IG, CID (Crime), Gujarat G
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 Gu/berg Society case H
522 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
8 and 25.3.2011 in connection with Gu/berg Society case.
Petitioner on his own without being summoned brought Mr.
K.D. Pa nth, Constable then attachAd 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
c 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
D 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. Pa nth did not corroborate the version of the petitioner that
of having followed him in his staff car to the Chief Minister's
E 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
F 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
G 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
H petitioner had given wide publicity to the affidavit dated
SANJIVRAJENDRABHATTv. UNION OF INDIA 523
[ARUN MISHRA, J.]
14.4.2011 through electronic and print media. However, after A
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. B
K. D. Pa nth sent an application to the Chairman, SIT enclosing
a copy of affidavit affirmed before an Executive Magistrate,
Gandhinagar stating that his statement before the SIT on
5.4.2:)11 was without any pressure or motivation. He has further
stated that in the early hours on 17.6.2011 the affidavit was C
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 D
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 E
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 F
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- G
accused, mobile tower location received from service
providers indicate the presence of the petitioner as well as
the complainant. The presence of petitioner/complainant at the
residence of President of rival political party in Gujarat, as
asserted by the complainant and his presence at the office of H
524 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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.
B 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
C 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
D the shortcomings of SIT under its Chairman. Full text of e-mails
exchanged between the petitioner and others has been filed.
What is of significance is that in rejoinder affidavit, the petitioner
has not controverted e-mail contents mentioned by State of
Gujarat in its counter affidavit. Petitioner has filed additional
E affidavit including certain documents. He has submitted that 9
reports submitted by SIT were sent by the Under Secretary
(Home) to the thenAAG and to Mr. G.C. Murmu. Mr. Gurumurthy
Swaminathan had written to the thenAAG that he has received
F 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.
G Gurumurthy who in turn had advised counsel for the accused
Pranab Badekha in this Court. The then AAG had exchanged
e-ma:I 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
H functionaries and by AAG to other State functionaries have
SANJIV RAJENDRA BHATT v. UNION OF INDIA 525
[ARUN MISHRA, J.]
been filed along with additional affidavit on 29.7.2011. E-mail A
exchange of Mr. Gurumurthy to correspondent of a newspaper
has also been filed. The thenAAG had also drafted a political
memorandum addressed to the Hon'ble President of India to
be submitted by the leaders on behalf of the ruling party of the
State. In Sohrabuddin's case investigation was transferred to B
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 lshrat Jahan encounter case, SIT investigation _was
ordered. In that connection also the then AAG had exchange C
13 e-mails. It is also submitted that Additional Secretary
(Home)'s affidayit was drafted by an outsider Mr. Gurumurthy
Swaminathan in consultation with the advocates of the accused
persons. Petitioner has filed various e-mails asAnnexures P-
0
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 E
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 F
on 13.8.2015. Petitioner has also submitted that he and the
then AAG enjoyed family relations; that is how he had an
opportunity to access the e-mail account. The e-mails sent by
the applicant to the travel agents regarding visa application,
cruise, confirmation of tickets to Sea World, Santiago, air- G
tickets, car-rental, other travel arrangements, change in travel
plans etc. (A-3 toA-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 H
526 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
B of the State Government and in Crl.M.P. No.15875/2015. In
the changed scenario prayer has been made to appoint SIT,
c·ontempt 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
C 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.
D
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
E 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
F · 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 ,Jressure may also be exerted upon the CBI. Thus a
G 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
H the fact that a chargesheet has been filed, this Court has ample
SANJIVRAJENDRABHATiv. UNION OF INDIA 527
[ARUN MISHRA, J.]
power to direct investigation by an independent agency by A
forming a Special Investigation Team of different independent
officers. Learned senior counsel has taken us through various
documents on record including the e-mails to contend thatthere
had been leakage of SIT reports, SIT itself has leaked the
reports. She has also taken us through various exchange of e- B
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 C
Fl Rs. 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
0
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 E
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 F
been harassed with malicious prosecution as he disclosed
about the meeting on 27.2.2002 and his conversation with the
then Chief Minister of Gujarat. It was further submitted that the
then AAG has not denied the contents of the e-mails exchanged
by him. The then AAG had voluntarily given password to the G
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, H
528 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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 constitU'l:es offence under the IPC and also amounts to
B 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
C Mr. Gurumurthy Swaminathan was also consulted by the State
of Gujarat. She has further submitted what was exchanged
between the parties were confidential documents supposed
to be submitted before this Court as well as the State of Gujarat
in criminal cases and the documents to be filed on behalf of
D
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
E 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 CourtsActto contend that act which
interferes or tends to interfere with, or obstructs or tends to
F 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
G 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
H MG of the State, other Government officials as well as the
SANJIV RAJENDRA BHATT v. UNION OF INDIA 529
[ARUN MISHRA, J.]
petitioner's role in disclosing a larger conspiracy implicating A
the then Chief Minister in Gujarat riots of 2002. She has also
emphasized on the need for an inquiry by an independent
agency. She has submitted that in the changed circumstances,
inquiry by CBI is no guarantee of a fair and impartial
investigation. Considering the present political set up in the B
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 C
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
0
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 E
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. F
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 G
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 H
530 SUPREME COURT REPORTS [2015] 12 S.C.R.
A subvert path of justice. The petitioner had shared the password
due to his affinity with the thenAAG 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
B 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
C overall conduct of the petitioner, e-mail exchange of the
petitioner with the political party in opposition, NGOs., media
persons and others indicates that the petitioner has concocted
the story as an afterthought and anyhow or somehow want to
keep issue alive. SIT reports in 9 cases were made available
D 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 sec 767, this Court vacated the stay on
E 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
F mentioned the action taken by SIT for fili_ng 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
G 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
H Ahesan Jafri &Anr. v. State of Gujarat & Ors. (2011) 12 SCC
SANJIVRAJENDRABHATiv. UNION OF INDIA 531
[ARUN MISHRA, J.]
302 to contend that SIT has found the claim of the petitioner to A
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 B
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 C
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-
0
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 E
as to whether the petitioner is guilty of the alleged offences or
not.
31. Learned Solicitor General has also taken us through
various e-mails and has contended that in view of the e-mails F
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, G
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 H
532 SUPREME COURT REPORTS [2015] 12 ~.C.R.
A appearing on behalf of SIT submitted that SIT had beer;
constituted by this Court and its work has been appreciatea.
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
B 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.
C The allegation made against SIT of disclosing the reports is
absolutely incorrect. The Member of the SIT had sent report of
Sohrabuddin encounter case which was not entrusted to SIT
but was looked after by Ms. Geetha Johri, Member, SIT, in a
different capacity of State officer. He has also pointed out the
0
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
E 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
F 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
G 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
H been made. Even the family of the then AAG has been c>ttacked
SANJIVRAJENDRABHATTv. UNION OF INDIA 533
[ARUN MISHRA, J.]
in a brazen manner by the petitioner whose conduct indicates A
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 B
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 C
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
0
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. E
35. The backdrop facts indicate that in the wake of
Godhra incident which took place on 27.2.2002, National
Human Rights Commission filed W.P. (Crl.) 109/2003 in this
Court. On 8.6.2006, Ms. Jakia Jafri filed a complaint with the F
Director General of Police, Gujarat agai~st 63 persons for
commission of offence under section 302 read with section
120-8 IPC in relation to Gujarat riots requesting the complaint
to be registered as an FIR which was refused. Said Jakia Jafri
fi)ed criminal complaint- Special Crl. Application No.421/2007 G
- 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. H
534 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
B to monitor the trial and submit periodic reports every 3 months.
On 30.7.2009, SIT submitted interim report in Jakia Jafn'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
C 27 .2.2002 and 10.5.2002 the incidents which took place were
committed, abetted and conspired by some responsible
persons in power in connivance with powerful persons in the
State administration including the police. On 2.2.2010 SIT had
submitted in this Court that further investigation with respect
0
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 Jafrls case. On 15.2.2011
this Court directed SIT to submit its report on the observations
E 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
F 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.
G P~mth did not support the presence of the petitioner in the
meeting dated 27.2.2002. On 14.4.2011 petitioner suo moto
had sent an affidavit to this Court in SLP (Crl.) No.1088/2008
pointing out SIT's conduct regarding testimony of Mr. K.D. Panth
and its reluctance to record information as to the larger
H conspiracy behind 2002 riots. On 5.5.2011 this Court
SANJIV RAJENDRABHATiv. UNION OF INDIA 535
[ARUN MISHRA, J.]
permitted the amicus to interact with witnesses. Pursuant A
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 . B
affidavit dated 17.6.2011 was handed over to him by the
a
petitioner. Mr. Panth lodged 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 C
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 D
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 E
full text of some of the e-mails along with rejoinder. However
substance of the e-mails remains the same. Though the
petitioner has also mentioned in the rejoinder affidavit that he
has filed complaint with the DIG (Police), Economic Offences F
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 la_rge, we deem it G
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 271h and 28 1h April,'
2011 between the petitioner and political leader of rival party. H
536 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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-
B Jakia Jafn'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
C to be made against the members of SIT".
37. Yet another set of e-mails exchanged with another
political leader of rival party in which there is reference of
approaching the high echelons in the party. On 28.5.2011
D 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
E 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
F appearing for rival political party wa·s 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 :
G
"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".
H
SANJIV RAJENDRA BHATT v. UNION OF INDIA 537
[ARUN MISHRA, J.]
39. With respect to the affidavit which was sent by the A
petitioner on 14.4.2011 certain e-mails indicate that he was in
constant touch with an activist of NGO and her senior advocate
and meeting was arranged with said lawyer at Ellisbridge
Gymkhana, Ahmedabad. Petitioner has also exchanged the
affidavit dated 14.4.2011 with a journalist. He has also B
consulted about the contents of the affidavit with a journalist
who has suggested addition of aparagraph 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 C
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- D
mail to the said correspondent to the effect that
"May be you can mention that I had met him {Sanjiv
Bhatt) on 27 1h when he was about to go to the
"disputed meeting". E
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 161h May, F
saying that he was with me when he had to leave
for CM's meeting on 271h. Kindly confirm through
your sources in Supreme Court."
In one of the e-mails the petitioner eve·n asks
Correspondent whether he would be comfortable with xxxxxxx G
? (Names of media persons).
Ultimately, when the reluctance of said correspondent still
persists, the petitioner writes to him as under:
H
538 SUPREME COURT REPORTS [2015] 12 S.C.R.
A "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
B 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.
C 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
o 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
E questions in lead and cross were prepared and sent to the
petitioner. Said activist has suggested that her lawyer should
spend 2 days with the petitioner to deliberated ghost questions
in lead and cross expecting the worst so that petitioner is
prepared to reply.
F
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
G are prepared to reply.. "
41. Petitioner had exchanged yet another e-mail with
another activist of Narmada Bachao Ando/an in which he has
mentioned to create a situation so as to make it difficult for a
H 3-Judge Bench of this Court to disregard the shortcomings of
SANJIV RAJENDRA BHATT v. UNION OF INDIA 539
[ARUN MISHRA, J.]
SIT and exerting pressure by the groups and opinion makers A
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 B
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 C
pressure is maintained at National level".
In one of the e-mails written to another President of NGO
petitioner has referred to rival political party. He has written :
D
" 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 E
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 271h night from the said officer. Said officer replied: F
" there is .absolutely no question of him being in
Gandhinagar".
It appears that the petitioner has stated that Haren G
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 : H
540 SUPREME COURT REPORTS [2015] 12 S.C.R.
A "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."
B 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, NG Os., their lawyers tried to play
C 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
D 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
E 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
F application for directions filed in 2015, the petitioner has stated
that he has no faith in the CBI also and the cases should be
investigated by SIT which may be constituted by this Court. It
was strenuously urged by learned senior counsel appearing
for the petitioner that considering the ramifications of the case
G 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
H cannot be said that the petitioner has come to this Court with
SANJIVRAJENDRABHATTv. UNION OF INDIA 541
[ARUN MISHRA, J.]
clean hands. Firstly the petitioner kept quiet for a period of 9 A
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 atAhmedabad. 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 B
statement recorded by SIT in 2009. The explanation offered
by the petitioner for said omission that his statement was
recorded intheyear2011 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 C
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 D
constituted by this Court whose performance has been
appreciated by this Court a number of times. Petitioner after
keeping quiet for 9 years had taken Mr. K.D. Panth with himself
to the SIT on 25.3.2011 and insisted that Mr. Panth should be
examined in his presence. It was not expected of a senior E
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 F
and Mr. Pa nth has not supported the stand of the petitioner
that he attended the meeting dated 27.2.2002. Later on
~etitioner 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 G
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 H
542 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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 o( NGO and
its activist. Ghost questions and answers were also prepared
B 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
C 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 iri their opinion to do so. Petitioner lnspite of being
a senior IPS officer was interacting with the top rival political
0
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
E 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 UP &
F Ors. (2010) 2 sec 114.
47. As per averments made by the petitioner, he
accessed the e-mails of the then AAG in the years 2009 and
2010. In case these e-mails were in his possession, it was the·
G 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
H possession of the same. Apart from that when the petitioner's
SANJIV RAJE::NDRABHATTv. UNION OF INDIA 543
[ARUN·MISHRA, J.]
statement was recorded by SIT in March, 2011, it was his A
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 JafrPs case but he kept silent as to thee-
mails in the said affidavit. When he made such sensational B
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 C
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
0
the petitioner kept quiet as to e-mails on aforesaid occasions,
fairly and rightly conceded that it was the duty of the petitioner
to state on the aforesaid occasions as to the e-mails but their
explanation that petitioner was ultimately pushed to the wall by
registering a criminal case at the behest of Mr. Pa nth, then he E
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 F
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 G
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 H
544 SUPREME COURT REPORTS [2015) 12 S.C.R.
A is material for the cases in question, as such considering
ramifications, this Court should direct investigation by SIT into
the aforesaid allegations. We are not ready to accept the
submission for various reasons. Firstly the scope of inquiry in
the case I-CR. No.149/2011 on the basis of the complaint
B 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
C 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
0
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
E of the complaint lodged by the thenAAG. 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.
F
49. This Court on 22.4.2009 had directed SIT to look
into complaint dated 8.6.2006 of Ms. Jakia Jafri. Apart from
that petitioner has himself appeared before the SIT as per the
directions issued by this Court for further investigation. On
G 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
H further investigation and submitted its report dated 17.11.2010
SANJIV RAJE"NDRA BHATI v. UNION OF INDIA 545
[ARUN MISHRA, J.]
before this Court. On 20.1.2011 learned amicus curiae A
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, B
22.3.2011and25.3.2011 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 C
investigation under section 173(8) in the Gu/berg Society case
and submitted its report on 24.4.2011. This Court examined
the report dated 24.4.2011 submitted by SIT and directed on
5.5.2011 that a copy of the same be supplied to the learned
0
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 E
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 F
before this Court. SIT had prepared a final report in the
aforesaid matter and this court on 12.9.2011 disposed of Jakia
Jafds 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 G
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 H
546 SUPREME COURT REPORTS [2015] 12 S.C.R.
A come to the conclusion that the claim of the petitioner that he
was present on 27.2.2002 in meeting held at the residence of
the then Chief Minister is not correct. The SIT has made the
investigation into the aforesaid aspect and SIT in its counter
affidavit has also clearly stated that it was found after
B 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
C and there is absolutely no basis now to order constitution of a
fresh SIT to look into the aforesaid aspect. This Court in Jakia
Jafn's case (supra) has observed as follows:
"9. We are of the opinion that bearing in mind the scheme
D 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
E 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 sec 110, in cases monitored by this
Court, it is concerned with ensuring proper and honest
F
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
G ordinary procedure prescribed by law.
10. Accordingly, we direct the Chairman, SIT to forward
a final report, along with the entire material collected by
SIT, to the court which had taken cognizance of Crime
Report No. 67 of 2002, as required under Section 173(2)
H
SANJIVRAJENDRABHATTv. UNION OF INDIA 547.
[ARUN MISHRA, J.]
of the Code. Before submission of its report, it will be A
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 ofthe accused, named in the reporUcharge-sheet,
including matters falling within the ambit and scope of B
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 C
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 D
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 E
has been held that in a case where the Magistrate to
whom a report is forwarded under Section 173(2)(1) of
the Code, decides not to take cognizance of the offence
and to drop the proceedings or takes a view that there is F
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· G
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. Sushi/ Kumar Modi (1998) 8 SCC
661, wherein, relying on the decision in Vineet Narain v. H
548 SUPREME COURT REPORTS [2015] 12 S.C.R.
A Union of India (1996) 2 SCC 199, a Bench of three
learned Judges had observed thus: (Sushi/ Kumar Modi
case (supra), sec p. 662, para 6)
"6 . ... that once a charge-sheet is filed in the competent
s 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
C 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
D 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
E 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
F leaking very sensitive and confidential details pertaining to the
ongoing investigation is totally false and baseless. Two e-mails
referred to by the petitioner were sent by Ms. Geetha Zohri,
IPS, Additional DG of Police, and the then Convener of SIT
from the e-mail of SIT for Godhra cases to the thenAAG. Both
G 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 Godhr;l cases at her cost to
H transmit these information pertaining to Cl D (Crime) to the then
SANJIV RAJENDRABHATTv. UNIONiOF INDIA .549
[ARUN MISHRA, J.]
MG. That information absolutely had nothing to do with the A
matters pendin9 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 B
his stand. Thetwoe-mailsdated 14.2.2009sentbyMs. Geetha
Zohri to the then MG 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 fa/si. He has suppressed the C
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
MG. It is unfortunate that on the one hand petitioner has prayed
0
for appointment of SIT ahd 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 E
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 F
obtained the affidavit of Mr. K. D. Pa nth 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 G
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 H
550 SUPREME COURT REPORTS [2015] 12 S.C.R.
A between petitioner and co-accused during the relevant period.
It is also found that the mobile tower location received from
the service providers with respect to complainant's mobile and
petitioner's mobile established that the complainant was
present at the residence of the petitioner at the time stated in
B 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
C 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 i~vestigation is unfair and
0
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
E 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 ofMr. K.D. Panth has been obtained.
Once the chargesheet has been filed the court has to proceed
in accordance with law in the matter.
F
53. It was also submitted on behalf of learned counsel
for the petitioner that counter affidavit filed in W.P. (Crl.) No.135/
2011 discloses sufficient reason to constitute SIT in which in
the reply filed by respondent No.2 it has been mentioned that
G "there is no room for doubt that it is a systematic and larger
conspiracy through the petttioner 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
H them, is trying to build up a story at a stage when after almost
SANJIV RAJENDRA BHATI v. UNION OF INDIA 551
[ARUN MISHRA, J.]
10 long years this Court has virtually concluded the judicial A
proceedings after undertaking tremendous judicial exercise".
In our opiniori, 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 B
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: C
"10. It has been held by this Court in CB/. v. Rajesh
Gandhi [1996) 11 SCC 253, (vide para 8)] that no one
can insist that an offence be investigated by a particular
agency. We fully agree with the view in the aforesaid D
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."
E
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. WN. Chadha
(1993) Supp 4 SCC 260, Ms. Mayawati v. Union of India &
Ors. (2012) 8 SCC 106, Dinubhai Boghabhai Solanki v. State F
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 sec 756.
G
55. Learned senior counsel appearing for the petitioner
has placed reliance on the decision in Babubhai v. State of
Gujarat (2010) 12 sec 254, wherein it was held as follows:
"45. Not only the fair trial but fair investigation is also part H
552 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
B and biased manner. Where non-interference of the Court
would ultimately result in failure of justice, the Court must
interfere."
56. Learned senior counsel has placed reliance on
C 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
D 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
E 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
F that, learned senior counsel has relied upon R.S. Sodhi,
Advocate v. State of UP & Ors. (1994) Supp 1 SCC 143 as
follows:
"2 .... we think that since the accusations are directed
G against the local police personnel it would be desirable
to entrust the investigation to an independent agency like
the Central Bureau of Investigation so that all concerned
including the relatives of the deceased may feel assured
that an independent agency is looking into the matter
H and that would lend the final outcome of the investigation
SANJIV RAJ EN ORA BHATI v. UNION OF 1NDIA 553
[ARUN MISHRA, J.]
credibility. However faithfully the local police may carry A
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 B
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 C
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 D
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, E
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 F
evidence and in case investigation is not fair or not made into
all the aspects it would be open to the petitioner to question it
at an appropriate time before an appropriate forum in·
accordance with law.
58. To constitute SIT, learned senior counsel has also G
relied upon Vineet Narain & Ors. V. Union of India & Ors.
[(1996) 2 SCC 199], Union of India & Ors. V. Sushi/ Kumar
Modi[(1998) 8 SCC 661], M.C. Mehta v. Union of India [(2007)
1 SCC 110], Centre for Public Interest Litigation & Ors. V. H
554 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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. \/. Union of India &
B 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
c 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
D 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
E money from unlawful sources given for unlawful
considerations; that the CBI and other government
agencies have failed to fully investigate into the matter
and take it to the logical end point of the trial and to
prosecute all persons who have committed any crime;
F
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,
G
security and economy of the nation; that probity in public
life, to prevent erosion of the rule of law and the
preservation o~ democracy in the country, requires that
the government agencies be compelled to duly perform
H their legal obligations and to proceed in accordance with
SANJIV RAJENDRA BHATI v. UNION OF INDIA 555
[ARUN MISHRA, J.]
law against each and every person involved, irrespective A
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 s
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 C
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 D
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 E
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."
F
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. G
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. H
556 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 60. There is no need to monitor the case any further as
this Court has already laid down in Jakia Jafn'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
B CBI or court's moniforing.
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
C 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 sec 578] is untenable.
D
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
E the thenAAG 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 thee-
F 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 MG
G 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
H is outsider to litigation before filing the reply in the court would
SANJIV RAJ EN ORA BHATI v. UNION OF INDIA 557
[ARUN MISHRA, J.]
not undermine the administration of justice in any way and is A
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 B
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 C
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 D
Mr. G.Swaminathan in 2010. These reports were submitted by
SIT on 11.2.2009 in this Court and copies thereof wer~ 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 E
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 F
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 G
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 H
558 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
B otherwise amounts to interference with administration of justice.
The petitioner has himself obtained these SIT reports, as per
the then MG 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
C 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
D
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
E 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 inforrnation was intended to help the accused
F 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
G 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
H administrative capacity will also be covered by sub-
SANJIV RAJENDRA BHATI v. UNION OF INDIA 559
[ARUN MISHRA, J.]
clauses (i) and (iii). The phrase "administration of justice" A
in sub-clause (iii) is far wider in scope than "course of
any judicial proceeding". The last words "in any other
manner" of sub-clause (iii) further extend its ambit and
give it a residuary character. Although sub-clauses (i) to
(iii) describe three distinct species of "criminal contempt", B
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 C
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 o
extracted earlier. In AM. 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 E
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 F
past or pending or any specific Judge, is a scurrilous
attack on the judiciary as a whole, which is calculated to
und.ermine 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 G
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 H
560 SUPREME COURT REPORTS [2015] 12 S.C.R.
A administration of justice is weak or in corrupt hands. The
fountain of justice is tainted. Secondly, the judgments that
stream out of that foul fountain are impure and
contaminated. In Halsbury's Laws of England (4th Edn.)
Vol. 9, para 27 at page 21 on the topic "Scandalising the
B 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 col:Jrt as a whole
or the individual judges of the court from a repetition of
c 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
D
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
E 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."
xxxxx
F 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
G 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 telld to undermine
public confidence in the administration of justice or the
H majesty of justice. It would, therefore, be scandalising
SANJIV RAJENDRABHATTv. UNION OF INDIA 561
[ARUN MISHRA, J.]
the judge as a judge, in other words, imputing partiality, A
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 B
lowering his dignity or authority or an affront to the majesty
of justice. When the contemnor challenges the authority
of the court, he interferes with the performance of duties
of judge's office or judicial process or administration of
justice or generation or production ·of tendency bringing C
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
0
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; E
or interferes or tends to interfere with, or obstructs or
tends to obstruct, the administration ofjustice 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 tu interfere with or F
tendency to obstruct the administration of justice in any
manner or tendency to challenge the authority or m::ijesty
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 G
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) H
562 SUPREME COURT REPORTS [2015) 12 S.C.R.
A 68. This Court in Rizwan-Ul-Hasan &Anr. v. State ofU.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
B question of propriety: This Court has laid down thus :
"10 .... the jurisdiction in contempt is not to be invoked
unless there is real prejudice which can be regarded as
a substantial interference with the due course of justice
C 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 amere
question of propriety."
D 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
E 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.
F
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
G any case is made out of criminal contempt. Besides it is also
clear that the prayer is also barred by limitation. One year
limitation is provided under section 20 of the Contempt of
Courts Act. Both applications are hopelessly barred by
limitation so as to initiate contempt.
H
SANJIV RAJENDRA BHATT v. UNION OF INDIA 563
[ARUN MISHRA, J.]
71. Resultantly, the writ petitions and Crl. Misc. Petition A
Nos.15871/2015, 15874/2015, 15875/2015, 15877/2015and ·
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 B
with law. No costs.
Nidhi Jain Writ Petitions dismissed.
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