- (1.) Appellant original-petitioner had filed Special Civil Application No.12295 of 2009 challenging order dated 18.9.09 passed by respondent No.1 herein, Commission of Inquiry presided by Hon'ble Mr Justice G.T.Nanavati ('Commission' for short). The petition came to be dismissed by learned Single Judge by judgment dated 27.11.09. This Letters Patent Appeal is, therefore, directed against the said judgment dated 27.11.09. During the pendency of the proceedings, certain further developments took place which have also been brought on record through Civil Application No.12673 of 2010 which application for amendment was allowed by order dated 23.11.2010. Consequential pleadings and prayers have also been added.
(2.) On 27.2.2002, an incident of setting fire of Sabarmati Express Train near Godhra Railway Station took place resulting into unfortunate death of 58 persons. This unfortunate incident resulted into spread of communal violence in various parts of the State of Gujarat and loss of human lives and destruction of properties. The State Government by notification dated 6th March 2002, set up a fact finding Commission under the Commissions of Inquiry Act, 1952 ('the Act' for short). The terms of reference were as follows: "2. The following shall be the terms of reference of the said commission namely:- "(1) To inquire into- (a) the facts, circumstances and the course of events of the incidents that led to setting on fire some coaches of the Sabarmati Express train on 27.02.2002 near Godhra Railway Station; (b) the facts, circumstances and the course of events of the subsequent incidents of violence in the State in the aftermath of the Godhra incident; and (c) the adequacy of administrative measures taken to prevent and deal with disturbances in Godhra and subsequent disturbances in the State. (2) To ascertain as to whether the incident at Godhra was pre-planned and whether information was available with the agencies, which could have been used to prevent the incident; (3) To recommend suitable measures to prevent recurrence of such incidents in future. 3. The Commission should complete its inquiry and submit its report to the State Government within three months." By subsequent notification dated 20th July 2004, terms of reference were expanded. This was principally done on the basis that the Government received representations for inquiring into the role and conduct of the Chief Minister, Ministers, Officers of the Government, other individuals and organizations. Additions made in the previous notification dated 6th March 2002 were as follows:- "Now, therefore, in exercise of the powers conferred by section 3 of the commission of Inquiry Act, 1952 (60 of 1952) the Government of Gujarat hereby amend the above referred the Government Notification, Legal Department No.:GK/07/2004-COI/102002/797-D dated 6th March 2002, for the aforesaid purpose as follows namely:- In the notification - "1. After clause (c) in sub-Para (1) of Para-2, following clauses (d) and (e) be added, namely:- "(d) Role and conduct of the then Chief Minister and / or any other Minister(s) in his Council of Ministers, Police Officers, other individuals and organizations in both the events referred to in clauses (a) and (b). (e) Role and conduct of the then Chief Minister and / or any other Minister(s) in his Council of Ministers, Police Officers (i) in dealing with any political or non-political organization which may be founded to have been involved in any other events referred to hereinabove, (ii) in the matter of providing protection, relief and rehabilitation to the victims of communal riots (iii) in the matter of recommendations and directions given by National Human Rights Commissions from time to time. In para 2: in sub-para (1) in clause (b), after the words, 'incidence of violence', for the words and figures, 'that took place on and from 27th February 2002 to 30th March 2002, the words and figures 'that took place on and from 27th February,2002 to 31st May 2002' be substituted. In para 3, for the words 'three months', the words 'on or before 5th December, 2005' be substituted." The Government was, thus, of the opinion that it was necessary to enlarge the scope of reference in public interest so as to look into role and conduct of the Hon'ble Chief Minister as well as other Hon'ble Ministers, Police Officers, other individuals and organizations.
(3.) The present appellant one Shri Amrish N. Patel is a member of NGO called Jan Sangarsh Manch ('JSM' for short). It is not in dispute that JSM has been actively participating in the proceedings before the Commission presenting evidence and has also been permitted by the Commission to cross-examine the witnesses. JSM filed an application dated 31st August 2007 (Ex.5979) before the Commission praying for summoning several persons named therein for deposing before the Commission. In the application, it was stated that evidence has been produced before the Commission to indicate that several police officers had colluded with the rioters. JSM has produced evidence of the mobile phone calls details before the Commission. There is prima facie evidence to show that violence which took place from 28th February 2002 onwards was as a result of preplan worked out by several Ministers, Police Officials, VHP and BJP leaders. JSM, therefore, prayed that summons be issued to following persons for deposing before the Commission: a) Shri Omprakash The then P.A. to the Chief Minister. b) Shri Tanmay Mehta PA/OSD to Chief Minister c) Shri Sanjay Bhavsar OSD to Chief Minister d) Shri Narendra Modi Chief Minister e) Ashok Bhatt the then Health Minister f) Gordhan Zadafiya the then Home Minister g) Shri R.J.Sawani the then DCP Zone V of Ahmedabad. On 27.11.2007, JSM filed another application (Ex.5998) with a similar prayer. On 29th April 2009, JSM filed yet another application (Ex.6005) before the Commission stating that previous applications were filed on 31.8.2007 and 27.11.07 requesting that the Chief Minister and certain other persons be summoned for cross-examination. Though such applications were heard, no order was passed. It was reiterated that summons be issued to such persons and JSM be permitted to cross-examine them.;