STATE OF GUJARAT Vs. MAYABEN SURENDRABHAI KODNANI

JUDGEMENT

(1.) THESE petitions are preferred by the State for cancellation of anticipatory bail granted by the Sessions Court, Ahmedabad to two respondents in two riot-related criminal cases in which total 106 persons were killed, many injured and three persons were missing who are now declared to be dead. The facts and the cases being interconnected and the contentions and the legal issues being common, all the three cases were argued and heard together and they are disposed by this common judgment.

(2.) IN Criminal Misc. Application No. 1943 of 2009, the respondent is granted anticipatory bail by the impugned order dated 05. 02. 2009 mainly on the grounds that the respondent was implicated in the offence only on the basis of the statements indicating her presence in the mob and incitement as also for the reasons that she was a woman who was not even alleged to have attempted to tamper with the evidence and grant of bail was not likely to hamper the investigation. In the second case against the same respondent, bail is granted on similar grounds with the additional ground of parity with other co-accused persons who were released on regular bail even though they were alleged to have possessed weapons at the time of the offences. These two original criminal cases are notoriously known as "naroda Patia" and "naroda Gaon" cases, respectively registered as C. R. No. 100 of 2002 and C. R. No. 98 of 2002. The third petition against another respondent is related to the latter Naroda Gaon case in which the respondent is granted anticipatory bail on the grounds that his name has first figured six years after the incident, that other accused persons holding weapons in the same incident have been released on regular bail, that he does not have a criminal record, that he has not attempted to tamper with any evidence and he is not likely to commit offences.

(3.) CHALLENGING the above orders, on affidavit of Deputy Superintendent of Police, Special Investigation Team (SIT), Riot Cases, it is contended that, by virtue of the statements of several witnesses recorded during the investigation by SIT, involvement of the respondents was proved from the inception and they were alleged to be leading the mob due to which their role could be distinguished from other accused persons. That, the respondent in Criminal Misc. Applications No. 1943 of 2009 and 1959 of 2009 is presently a Minister of State and, therefore, there were ample chances of tampering of witnesses and evidence. That, learned Sessions Judge has not properly considered the evidence and, without looking to the seriousness of the offences of which investigation was going on, exercised the discretion on irrelevant and untenable grounds. That, according to one of the statements of witnesses, the respondent was alleged to have fired from her pistol and was also alleged to have distributed swords to the mob. It is averred that learned Sessions Judge has ignored in the impugned judgment the relevant considerations of gravity of the offences, probability of tampering of the prosecution witnesses as also wider interest of the society and impact of such orders. It is also submitted that the SIT was diligently investigating serious offences pursuant to the orders of the Apex Court and even alibis put forward by the respondents were investigated and thereafter it was prima facie found that the respondents were involved in the acts of spreading communal riots resulting into mass murder, destruction of property of a large number of people and other offences. On the other hand, the respondents were not fully co-operating with the investigating agency and they were making themselves unavailable when required. It is also averred that, even as early as in March 2002, applications were made from relief camps by the victims naming the respondents. It is clearly averred in the petitions that, according to the original FIRs dated 28. 2. 2002, Gujarat Bandh was declared on 28. 2. 2002 by Vishwa Hindu Parishad pursuant to carnage in a railway coach at Godhra on 27. 2. 2002 and communal riots were spread in the entire State of Gujarat, including Ahmedabad City. Properties belonging to Muslim community were damaged, looted and set on fire by mobs of thousands of people of Hindu community and many persons, including females and children, were killed. It is alleged in the FIRs lodged by Police Inspectors that the mobs were headed and instigated by the leaders of VHP and BJP. In the FIRs lodged against only five of named VHP and BJP workers with unnamed members of the mob consisting of thousands of persons, offences punishable under sections 143, 147, 148, 149, 436, 395, 302 of IPC and section 135 of Bombay Police Act were registered and several successive charge-sheets for heinous offences against many other persons were already filed.