Gujarat High Court
Chief Secretary - State Of Gujarat vs Commissioner Of Inquiry on 14 October, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
CHIEF SECRETARY - STATE OF GUJARAT....Applicant(s)V/SCOMMISSIONER OF INQUIRY PRESIDED BY HON'BLE MR. JUSTICE C/MCA/3101/2012 CAV JUDGEMNT
MCA31012012Cj5.doc IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION (FOR CLARIFICATION) NO. 3101 of 2012 In WRIT PETITION (PIL) NO. 216 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA Sd/-
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes 2 To be referred to the Reporter or not ?` No 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made there under?
No 5 Whether it is to be circulated to the civil judge?
No ========================================================= CHIEF SECRETARY - STATE OF GUJARAT Versus COMMISSIONER OF INQUIRY PRESIDED BY HON'BLE MR. JUSTICE RETD. G.T. NANAVATI & ORS.
========================================================= Appearance:
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR. P.K. JANI, GOVERNMENT PLEADER for the Applicant.
MR MIHIR JOSHI, SR. ADVOCATE with MR. AJ YAGNIK, ADVOCATE for the Opponents No. 2 - 3 ========================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 14/10/2013 CAV JUDGEMNT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. This is an application seeking clarification of the order dated 12th October 2012 passed by this Bench in Writ Petition [PIL] No. 216 of 2012 by which we disposed of the Public Interest Litigation filed by the respondents No.2 and 3 of this application.
2. In the above writ-petition, the writ-petitioners therein prayed for the following reliefs as stated in paragraph 12 of the said writ-application:-
(A) Direct the Respondent No.1 to exercise its powers under Section 4 of the Commission of Inquiries Act to direct Respondent No.2 to protect and preserve all the documents sought vide applications dated 30/12/2011 and 21/02/2012.
(B) Direct the Respondent No.1 to exercise its powers under Section 4 of the Commission of Inquiries Act to direct Respondent No.2 to forward all the documents sought for by the applications dated 16/05/2011, 15/12/2011, 23/12/2011 and 11/02/2011 to the Petitioners;
(C) Direct the Respondent No.1 to exercise its powers under Section 4 of the Commission of Inquiries Act to direct Respondent No.2 to forward all the 'representations' referred to in the Notification dated 20/07/2004 to the Petitioners;
(D) Direct the Respondent No.1 to exercise its powers under Section 5 read with Section 4 of the Act to further examine the Petitioner No.2; and/ or (E) Direct the Respondent No.1 to issue notice to the present Chief Minister so as to enable his appearance and examination;
(F) Direct the Respondent No.1 to submit the final report in respect of the amended terms of reference to the Office of Her Excellency the Governor of Gujarat rather than to Respondent no.2;
(G) Interim-relief-During the pendency of the present Petition and pendency of proceedings before the Commission in view of the reliefs sought at Clause Nos. A - E , direct Respondent No.1 not to submit the final report as mandated under the Terms of Reference;
(H) Any other order that may be deemed appropriate and necessary.
3. The case made out by the writ-petitioners in the above Public Interest Litigation may be summed up thus:-
[a]. Pursuant to the setting in fire of Sabarmati Express Train on 27th February 2002 near Godhra Railway Station, the Government appointed a Commission of Inquiry in exercise of powers conferred by section 3 of the Commissions of Inquiry Act, 1952 to inquire into the incidents of violence in the State in the aftermath of the Godhra incident, etc. [b]. The writ-petitioner No.2, who is the respondent No.3 before us, wanted to give evidence in the Commission and for the purpose of giving evidence by way of affidavit, he wanted to rely upon certain documents. For the above purpose, he wanted to have inspection of some documents as indicated in the writ-application but the Commission refused to issue any direction upon the State Government for giving inspection of those documents. The further grievance of the petitioners was that it appears from an interview given in the newspapers, viz. Indian Express, by the Senior Counsel who appeared before the Commission on behalf of the State Government, certain intelligence reports relating to the 2002 riots were destroyed in the year 2007. Subsequently, however, a report appeared in a section of the media that the State Government had denied the aforesaid allegation.
[c]. According to the writ-petitioners, if those documents are destroyed, and at the same time, the petitioner no. 2 therein was not given opportunity to inspect those documents before giving evidence before the Commission, the purpose of appointing the Commission would be frustrated.
[d]. Further prayer of the petitioners was for a direction upon the Commission to issue notice to the Chief Minister of Gujarat to compel his appearance and examination and that the Commission should submit its final report in respect of amended terms of reference to the office of the Honourable Governor of Gujarat rather than to the Chief Secretary of the State of Gujarat.
4. While deciding the writ-application, we, by relying upon an earlier decision of this Bench in the case of Jigneshbhai Dhirendrabhai Goswami v. State of Gujarat and others [Writ Petition (PIL) No.172 of 2011], held that in order to successfully maintain a writ-application, the petitioner must establish beyond reasonable doubt that by the action or the inaction on the part of a State within the meaning of Article 12 of the Constitution of India, any of his legal or fundamental rights has been infringed. This Bench, after pointing out that by establishment of a Commission under the Commissions of Inquiry Act, 1952, the right of no citizen is in any way affected, as pointed out by the decisions of the Supreme Court quoted in our judgment refused to entertain the prayers made therein. We further pointed out that the findings of the Commission constituted under the Act of 1952 is merely recommendatory in nature for the purpose of advising the State Government for effective control of the situation in future and the State Government can, even after submission of recommendations, refuse to implement the same. Therefore, this Bench proceeded, there was no scope of passing any direction upon the Commission for the purpose of conducting its investigation in a particular way.
4.1 However, we further pointed out that when a witness is summoned by the Commission, if any impediment is created in his way in disclosing the relevant facts known to him before the Commission, such witness has a definite right to move this Court in exercise of jurisdiction under Article 226 of the Constitution of India disclosing the impediment and for the above reason, the High Court can entertain such application for the limited purpose of seeing that the petitioner no. 2 can have inspection of documents in question and those documents, which he considers to be useful, are in not way destroyed.
4.2 We, therefore, took note of the fact that in such circumstances, a summoned witness can pray for restraining the State Government from destroying any document on which the witness wants to rely.
4.3 At that stage, the learned Advocate General who appeared on behalf of the State Government stated before us that the documents pointed out by the writ-petitioners had not been destroyed and at the same time, those had also been sent to the Commission and if any of those documents had not yet been sent to the Commission, the same would be sent within seven days from the date of disposal of the writ-application.
4.4 In view of such assurance given by the learned Advocate General, we disposed of the said writ-application by holding that no further direction was necessary in view of the statement made by the learned Advocate General and the writ-petitioner No.2, was directed to file his proposed affidavit within one month after the inspection is taken and such inspection should be taken positively within a fortnight from the date of disposal of the aforesaid writ-petition.
4.5 At the same time, we made it clear that we had otherwise not gone into the question of manner of the enquiry conducted by the Commission and it was for the Commissioner to decide the question of relevancy or otherwise of those documents.
5. It appears that being dissatisfied with the above order passed by this Bench, the writ-petitioners moved the Supreme Court by filing Special Leave Application in the month of April 2013, but the Supreme Court refused to interfere with our order dated 12th October 2012 disposing of the said writ-application.
6. In the meantime, on 9th November 2012, the present Misc. Civil Application has been filed by the Chief Secretary, State of Gujarat, thereby praying for the following relief:
[A]. This Hon ble Court be pleased to suitably clarify and/or modify the contents of paras 6 & 9 of the order dated 12.10.2012 of this Hon ble Court produced at Annexure- A hereto as well as the aspect relating to grant of inspection of the documents produced by State Government being left to the Hon ble Commission.
[B]. This Hon ble Court be pleased to suitably extend the time limit originally fixed in the order dated 12.10.2012 passed by this Hon ble Court and produced at Annexure A hereto.
(C). Any other and further relief as this Hon ble Court may deem fit and proper in the facts and circumstances of the case to be granted, be granted.
7. Mr. Trivedi, the learned Advocate General appearing on behalf of the present applicant- Chief Secretary, Government of Gujarat, has submitted before us that on the basis of instructions given by Shri V.B. Badheka, Under Secretary to Government of Gujarat, Home Department and Shri Pankaj R. Dave, Section Officer, he made the statement before the Court that the documents sought for by the writ-petitioner No.2 had not been destroyed and on that basis, this Court passed the direction. However, according to the averments made in this application, those officers were not aware of the fact that few documents out of the list of 47 documents referred to by the writ-petitioners being Sl. No. 20 to 25, 27, 40 and 44 indicated at pages 485 to 488 of the petition, were destroyed long back in the years 2006 and 2010 in a routine manner in terms of the well-established practice evolved by way of instructions of General Administration Department of the State Government. According to the petitioner, the matter being exclusively within the realm of the State Intelligence Bureau [SIB], those officers, who gave the instructions to the learned Advocate General, had no knowledge and information about the said few documents referred to above, which had been destroyed in the past. According to the petitioner, those officers sincerely apologize regarding the said communication gap and thus, the present application has been filed to point out that those nine documents had already been destroyed after the expiry of the required period of preservation. Hence this application has been filed.
8. The above application has been opposed by the original writ-petitioner No.2 who is the respondent No.3 in this application and the objections raised by him may be summed up thus:
[1]. All the averments and submissions made and contentions raised in the Application are not true and denied unless specifically admitted hereinafter. Malicious attempts in attributing motives and the innuendoes and invectives are specifically and generally denied but issues are not joined for the present. The Respondent no. 3 did not want to digress from the critical issues of accountability and responsibility.
[2]. Before dealing with contents of the Application in question, the Respondent no. 3 would like to raise a preliminary objection as to the maintainability of the present Application and would submit as hereunder:
(a). The power conferred on this Court to review is provided under S.114 along with Order-XLVII, Rule-1 of the Code of Civil Procedure and the same is required to be exercised in a very specific and limited circumstances and the same can be summarized thus:
(i). Discovery of new and important matter or evidence which, after the exercise of due-diligence, was not within his knowledge or could not be produced;
or
(ii). Mistake or error apparent on the face of the record; or
(iii). Any other just and sufficient reasons.
(b). No legally tenable grounds for review have been advanced out in the Application.
(c). The Applicant has been very economical with the truth as the developments that have taken place, subsequent to 12/10/2012, before the Commission have not been deliberately presented before this Court.
(d). The Application has been preferred with an ulterior motive to evade the legal consequences of the non-compliance with the order passed by this Court. Further, a perusal of the Application, more particularly, the averments made at Paragraphs 2-4, if correct, is nothing but a categorical admission of the inexcusable negligence on the part of the Applicant.
(e). It is a futile attempt on the part of the Applicant to say that they were taken by surprise on the issue of production and inspection of the documents. The Applicant s attempt to suggest that it had no notice of those facts in order to have a second innings before this Court is a white-lie and is contrary to the facts and circumstances and deserves to be dismissed at once.
[3]. The Writ Petition (PIL) No. 216 of 2012 had specific averment about the fact that access was denied to the 47 documents even when those were specifically sought, both from the State and the Commission. The said W.P. also had a specific prayer in that regard at Paragraphs 12(B). The advance copy of the said W.P. was served on the Applicant on 24/09/2012. The W.P. came up for admission-hearing on the 27/09/2012. It remained part-heard on 29/09/2012 and hence was sent-over to 5/10/2012 and thereafter, to 12/10/2012 on which day this Court was pleased to allow the W.P., partly, vide a detailed order dated 12/10/2012.
[4]. The excuse put-forth by the Applicant that officers briefing the learned Advocate General and the Government Pleader were from the Home Department and the documents pertained to the State Intelligence Bureau is a lame one particularly when the SIB squarely falls under the purview of the Home Department. The attempt of the State to furnish this belated explanation is wholly mischievous and shows the cavalier manner in which it assisted this Court. As per the admission of the Applicant, one of its officers had an opportunity to deal with the subject matter in the year 2011 and hence, this excuse ought to be rejected with all the contempt that it deserves.
[5]. Before joining issues with the Application on various other aspects, the Respondent no. 3 would to draw the attention of this Court on certain developments that have taken place subsequent to the 12/10/2012 which, for the reasons best known to the Applicant, have not been brought before this Court. As those developments furnish the crucial background to the present Application and hence, are relevant to the issues being raised by the Applicant, the same is being briefly stated herein below:-
[A]. In view of the fact that the Commission was not issued any notice by the High Court before disposing off the said WP and also because of the fixed schedule drawn by this Court, the answering Respondent thought it fit to draw the kind attention of the Commission vide letter dated 17/10/2012, bearing Ref. No. No. SRB/COI/121017/01 to the said Order dated 12/10/2012 of the Gujarat High Court along with an intention to commence the Inspection of the Documents and Records as listed at Pages 486 to 488 of the said Writ Petition at 1100 hrs. on October 19, 2012 with a further request to provide an indexed list of the available documents so as to facilitate expeditious inspection of documents and timely filing of the affidavit.
[B]. The Respondent No. 3 went to the Commission to commence his inspection on 19/10/2012 at 1100 hrs. The Secretary, Commission of Inquiry informed that the documents had arrived in batches, some previous evening, i.e., 18/10/2012 and the others, on 19/10/2012 and access would be granted to only those documents which are not classified and marked by the forwarding authority as Confidential or Secret . Thereafter, the Commission was pleased to handover a Note of the same date, i.e., 19/10/2012 which was endorsed by the Respondent no. 3 and counter-initialled by the counsel for the State. The contents of the said Note are relevant to the present proceeding and are hence being extracted for ease of reference:
Note:
Nobody can claim, as a matter of right, either under the Commissions of Inquiry Act or the Rules framed there under, inspection of documents which have come on the record of the Commission. Inspection of the record of the Commission is a matter of procedure and therefore, a matter of discretion of the Commission. The Hon'ble High Court has therefore, rightly observed in its judgment (Writ Petition (PIL) No.216/2012) that it is for the Commission to decide the question of relevancy or otherwise of the documents and it has not gone into the question of manner of the inquiry which is conducted by the Commission.
Apart from relevancy of documents, many other considerations have to be taken into account, before a request for inspection thereof is granted by the Commission. On overall consideration, the Commission directs the Secretary of the Commission, to permit Shri Sanjiv Bhatt, to inspect those documents, out of the documents referred to in the Judgment of the High Court and produced by the State or the Police department, which are not marked or stated to be confidential/Secret.
Sd/-
GTN (for the commission) Received this note at 11:34 hrs on 19/10/2012. I have been instructed by the Justice Nanavati in presence of the counsels (sic) for the State and my counsel Shri S. Vatsa that the documents have been received by the Commission from the State only last night and today morning. The Secretary for the Commission, Shri Patel was instructed to make a list of the documents received and provide the same to me as soon as it is ready and upon which the inspection as directed by the Hon ble H.C. will commence. An order to the above effect may kindly be given at the earliest.
Sd/-
(Sanjiv Bhatt) 19/10/2012 Received, Sd/-
Devang Vyas (Advocate for the State) (Emphasis Supplied.) [C]. Pursuant to the abovementioned endorsement on the said Note , an order dated 19/10/2012 was passed by the Commission at 11:50 hrs on 19/12/2012 and the same is also extracted as herein below:
In respect of the documents produced before this Commission pursuant to the High Court's order the list thereof is yet to be prepared. As soon as the list becomes ready, a copy thereof will be given to you.
[D]. Then the Respondent No. 3 addressed another letter dated 20/10/2012 bearing Ref. No. SRB/COI/121020/01 to the Commission expressing his anguish about the misreading of the explicit and unambiguous directives of the High Court so that all the impediments are removed so as to facilitate the timely filing of the proposed affidavit.
[E]. The Commission vide letter dated 23/10/2012 (received by the Respondent no. 3 at 1215 hrs. on 25/10/2012) was pleased to inform about the compliance by the State in respect of the order dated 12/10/2012 of the Gujarat High Court in the form of a tabular statement and for the sake of brevity, the same can be summarized as hereunder:
(i). The State has produced 15 documents out of the 47 documents that it undertook to supply and indicated to the Commission that the Respondent no. 3 can take inspection of 5 records.
(ii). The State has not supplied 8 documents out of the 47 documents that it undertook to supply as it was in the process of tracing them.
(iii). The State has not supplied 8 documents out of the 47 documents that it undertook to supply as there was no provision to maintain the same.
(iv). The State has not supplied 24 documents out of the 47 documents that it undertook to supply as the same have been marked as confidential/secret.
(v). The State has not supplied 1 document at Sr. No. 47 out of the 47 documents that it undertook to supply as no such document was sent by Shri Sanjiv Bhatt to the Branch .
[F]. The Respondent no. 3 made oral-submissions as well as filed written-submissions dated 29/10/2012 bearing Ref. No. SRB/COI/121029/01 in respect of the letter dated 23/10/2012 of the Commission in general. Further, the Respondent no. 3 explicitly objected to the stance of the State which had marked certain documents as Secret/Confidential and on that basis it had requested the Commission that those documents may not be disclosed to any person.
[G]. The list of documents that was finally supplied by the State of Gujarat to the Commission pursuant to the Order of this Court and available for inspection was given to the Respondent no. 3 on 1/11/2012.
[H]. The State chose to respond to the aforesaid correspondences of the Respondent no. 3 by way of a written-reply dated 2/11/2012 which was annexed at Annexure-D of the Misc. Application (Pages 49 to 67 of the Paper book). Even as leave is craved and sought for a para-wise and separate reply as and when required by this Court, the gist of the arguments forwarded by the State can be summarized as follows:
(i). The High Court has merely directed the State Government to furnish these documents to the Commission.
(ii) The State has no objection if the Commission peruses the same and when the Commission can peruse these documents, there is no need for the Respondent no. 3 to see the same.
(iii). Relevancy:
The High Court has left the issue of relevancy of those documents, to be decided by the Commission.
The aspect of relevancy was never an issue before the High Court.
The documents sought to be inspected are not relevant to the TOR of the Commission.
(iv) Conduct:
The Respondent no. 3 did not respond to the Commission for 10 years.
Plea of oath of secrecy is a lie.
The Respondent no. 3 has sensationalised the proceedings before the Commission with an oblique motive.
No one should be permitted to seek access to documents only with a view to concoct certain basis for filing an affidavit.
All persons are obligated to disclose those facts, relevant to the scope and ambit of the Inquiry, within their knowledge.
Granting of inspection will be permitting misuse of this forum.
(v). Confidentiality- The inspection should not be permitted on the grounds of secrecy and confidentiality. It is contended that the same would be violative of various rules of the Gujarat Police Manual, Ministry of Home Affairs guidelines, Right to Information Act etc. [I]. The Commission, during the course of hearing the State on 2/11/2012, passed an order dated 2/11/2012 (Exhibit-6225) wherein it directed the State to file an affidavit in respect of the destruction of certain documents. The relevant portions are being extracted herein below for the ease of reference:
... ... Today we also informed the learned counsel appearing for the State and for Mr Sanjiv Bhatt that before we can decide the question of relevancy and secret nature of the documents at serial nos. 14, 19, 20 to 27 and 31 to 44 of that list, we will have to go through those documents. We also drew their attention to the fact that those documents run into more than 20,000 pages and therefore that process will consume some time.
[J]. Thereafter, on 6/11/2012, the Applicant filed an affidavit explaining the manner in which some of the documents had been destroyed way back in 2006 and 2010. This has also been annexed by the Applicant at Annexure-E of the Application (Pages 68 to 104 of the Paper book) [K]. Thereafter, the Respondent no. 3 sought specific clarifications vide letter dated 7/11/2012 bearing Ref. No. SRB/COI/121107/01 from the State as well as from the Commission in respect of certain factual aspects.
[L]. In view of the peculiar facts and circumstances, on 9/11/2012 the Respondent no. 3 was constrained to prefer an Application under Section 5A bearing Ref. No. SRB/COI/121109/01 before the Commission urging it to urgently institute an independent high-level investigation in exercise of its powers under S. 5A of the Act, to investigate into the aspect of the alleged destruction of records as also in order to unearth other documents which had been claimed by the Applicant as not being maintained . The Respondent no. 3 wishes to draw the attention of this Court to this as subsequent development before the Commission. The Respondent no. 3 must also fairly state that the Commission has not made any categorical finding in respect of his Application but has invited the response of a senior functionary of the Home department on an Affidavit.
[M]. The State responded to the communications dated 7/11/2012 & 9/11/2012 of the Respondent no. 3 by way of a written-reply dated 23/11/2012. Even as leave is craved and sought for a para-wise and separate reply, if necessary, the gist of the arguments forwarded by the State can be summarized as follows:
[i]. Both the applications suffer from conjectures and surmises.
[ii]. The State has already approached this High Court seeking clarification.
[iii]. Admittedly, all the documents sought for are beyond the scope of the TOR.
[6]. It is in the context of the abovementioned facts and circumstances, the Respondent No. 3 wishes to make certain submissions before making para-wise submissions to the present M.C.A. [a]. The factual matrix and the background in which this Court was pleased to pass the said Order is summarized as herein below:
(i). After the Respondent no. 3 received the summons dated 27.04.2011 vide summons No. COI-Guj.(Ahd)-14-2011 issued u/S. 5 read with S. 4 of the Commission of Inquiries Act to appear before the Commission on 16.05.2011 at 1130 hrs, he made repeated and urgent requests to the State authorities/Commission to provide immediate access to requisite and relevant information/records/ documents of the State Control Room, DG&IGP Office and State Intelligence Bureau for the period from 27/02/02 to 17/09/02 so as to meaningfully assist the Commission. All the bona fide requests went unheeded. The Commission vide orders dated 30/12/2011, 21/02/2012 and 20/03/2012 has consistently taken the stand that it does not consider it necessary or fit to pass any order for discovery or production of any such document as requested.
(ii). During the cross-examination by the State on 29/06/2011, certain questions were put that were specifically in respect of the issue of destruction of documents that were sought from the SIB. (Q145 to Q155 of the deposition/ Pages 424-429 of the Paper-book of the WP (PIL) No. 216/2012)
(iii). Even as the deposition of the Respondent no. 3 was proceeding before the Commission, certain media reports quoted Mr S.B. Vakil (advocate of the State of Gujarat) that some of the crucial intelligence records have been destroyed.
(Refer ANNEXURE- Z at Pages No. 458 of the Paper book of the W.P. No. 216/2012 (PIL)
(iv). Jan Sangharsh Manch, one of the parties before the Commission, preferred an application dated 4/07/2011 (Exh.-6153) before the Commission seeking various directions in relation to the documents purportedly destroyed by the Government. Some of the relevant directions sought therein are being extracted herein below for the sake of ease of reference.
& & The Home Secretary be directed to file an Affidavit to state as to which specific records of the State Intelligence department was destroyed for the period between 27th February, 2002 and 31st May, 2002.
& & The Government should be directed to produce or permit the inspection of all the vehicle movement registers (log-book) of DGP Chakravarty, Addl DGP Mr Raigad, Police Commissioner Shri P.C. Pande, DIC Sanjeev Bhatt for the period between 27th February, 2002 and 3rd March, 2002 (both days inclusive).
The Government should be directed to produce or permit the inspection of the telephone call registers of the State Intelligence Department Control room as well as the movement diaries of the Addl DGP Shri Raigad, IGP Shri OP Mathur and the three DICs of the State Intelligence department for and during the the period between 27th February, 2002 and 3rd March, 2002 (both days inclusive).
&& &
(v). The Respondent no. 3 and the Respondent No. 2 were constrained to prefer a Writ Petition No. 216 of 2012 highlighting issues of public importance. This Court, disposed off the said WP (PIL) on 12/10/2012 wherein a valuable right of the witness to assist the Commission has been specifically recognized in the specific context of the Prayer sought in Para- 12 (B) and is being extracted as hereunder for the ease of reference:
Para 12(B)- DIRECT the Respondent No.1 to exercise its powers under Section 4 of the Commission of Inquiries Act to direct Respondent No. 2 to forward all the documents sought for by the applications dated 16/05/2011, 15/12/2011, 23/12/2011 and 11/02/2011 to the Petitioners;
(b). It is crystal clear that this High Court s order dated 12/10/2012 was based on the categorical and unambiguous undertaking of the Ld. Advocate General that none of those documents that were sought by the Respondent no. 3 have been destroyed and that the same are available and would be forwarded to the Commission within a week, i.e., by 19/10/2012 for the specific purpose of inspection.
(c). As per the schedule drawn by the High Court by order dated 12/201/2012, the inspection of was to commence on the 19/10/2012 and the same was to be completed on 26/10/2012. This clearly meant that all those documents were to be available with the Commission by 19/10/2012 for the inspection to commence. It is respectfully stated and submitted that till date the Applicant has not complied with directive of this Court.
(d). The Applicant has consciously and deliberately not produced 32 documents on the plea that certain documents were secret , being traced , no provision to maintain the same etc. This fatuous and belated plea seems to have been put-forth only to avoid further scrutiny which may reveal that these documents are being deliberately suppressed or have indeed been destroyed.
(e). There is a deliberate attempt by the Applicant to read Paragraph-11 of the Judgment and Order dated 12/10/2012 dehors the context. Without prejudice to legal remedies in so far as non-grant of the other prayers sought in the said W.P., the Respondent no. 3 most respectfully states and submits that Para-11 ought not to be interpreted in a convoluted way so as to render it into a nullity.
(f). The action of the State is in clear violation of its solemn stand taken before this Court on the following counts:
[i]. This only furthers the long standing apprehension that such documents might have been selectively destroyed by the State.
[ii]. This deliberate violation by the State of its own undertaking before the High Court to supply the documents to the commission by 19/10/2012 has made it impossible to even commence any meaningful inspection that should have been completed by 26/10/2012.
[iii]. Adherence to the stipulated time schedule was crucial if an affidavit had to be filed within the time-period as directed by this Court.
[iv]. This has been done with a consistent and ulterior objective of denying access to the relevant documents particularly as the time-period of the Commission is now likely to expire on 31/12/2012.
[v]. The factum of the Applicant as well as the Commission having denied the Respondent no. 3 the access to any of 47 documents was specifically and repeatedly averred in the said W.P. and Paragraph-12B is the consequent relief sought and hence Paragraph-11 of the said Order ought not to be interpreted in such a way to permit the Commission to again examine the issue of relevance particularly when it had already concluded that it does not consider it necessary or fit to pass any order for discovery or production of any such document as requested.
[g]. The affidavit of Mr J.K. Bhatt DIG (Intelligence) dated 6/11/2012 filed before the Commission pursuant to the order of the Commission dated 2/11/2012, for the first time, placed on record the manner in which the government documents are required to be classified for preservation and authorized destruction. It is stated and submitted that it is one more attempt to mislead and impede the inquisition with respect to the ToRs.
[i]. It refused to disclose the manner and basis on which it has classified all the 47 documents as sought by the Respondent no. 3.
[ii]. The study of documents annexed to the said affidavit reveals that the categorization as well as the mandatory period for preservation mentioned therein is absolutely arbitrary and there is a complete mismatch between the time periods for preservation/destruction stipulated in the GAD Circulars.
Comparable documents/records maintained with the State Control Room are either available , being traced or not maintained whereas, documents/records on the similar subject maintained by the SIB are claimed to have been destroyed.
Hence, clearly the classification of records of the SIB as against exactly similar records of the office of the DG&IGP office has been carried out in an arbitrary manner with an ulterior motive, resulting in the alleged selective destruction of certain crucial records.
The Registers pertaining to all the Incoming and Outgoing Messages, routed through the State Intelligence Bureau Control Room as well as all the Dispatch Registers are required to be preserved by the Registry of the Administration Branch for a period of 10 years. It may be noted that access to the said Registers of the State Intelligence Bureau, was sought by the Respondent no. 3 on 04/05/2011 vide his letter SRB/COI/110504/01 dated 04/05/2011, viz. well within the stipulated period of mandatory preservation.
The claim that the documents at Sr. No. 4, 7 & 11 (documents pertaining to the office the DG-IGP) and at Sr. No. 28, 29, 30, 45 & 46 (documents pertaining to the office the SIB) are not maintained is belied by the documents appended to the Affidavit dated 6/11/2012.
Document at Sr. No. 4- It is impossible that the State Control-room (SCR) does not maintain an outward telephonic message register as it maintains an incoming telephonic message register . Such a register is maintained by all the police control rooms in every state. Even, the SIB Control Room admittedly maintains the same, though in the present case, it is claimed to have been destroyed.
Document at Sr. No. 7- it is a patent lie that the movement diary of the DG & IGP is not maintained. In fact a copy of the same is sent every month to the Home Department as well as to the Chief Secretary. Moreover, all claims of TA/DA of the DG & IGP are made and allowed on the basis of the said record.
Document at Sr. No. 11- it is a patent lie that the duty registers of the drivers attached with the DG & IGP are not maintained as the DG & IGP has a car pool at his disposal and uses different vehicles on different occasions. Hence, such a Duty-Roster is regularly maintained in order to affix the identity of the driver of the car used by the DG&IGP and to ascertain and allow his TA/DA claims.
Document at Sr. No. 28
- it is a patent lie that the movement diary of all the IPS officers posted at SIB is not maintained. In fact a copy of the same is sent every month to the ADGP/DGP (Intel.) as DG & IGP. Moreover, all claims of TA/DA are made and allowed on the basis of the said record.
Document at Sr. No. 29- it is a patent lie that the movement diary of all the officers posted at Ahmedabad Region office of SIB is not maintained. In fact a copy of the same is received every month by the SIB-HQ. Moreover, all claims of TA/DA are made and allowed on the basis of the said record.
Document at Sr. No. 30- is not only maintained but there is a stipulation of maintaining it in A-branch for 1 year and in H-branch permanently.
Document at Sr. No. 45- this is an occasionally generated document, copies and records of which are maintained by the NGO-branch of the ADGP/ DGP (Intelligence).
Document at Sr. No. 46- this is an occasionally generated document, copies and records of which are maintained by the NGO-branch of the ADGP/ DGP (Intelligence).
(iii). The Daily Summary of Intelligence, referred to and mentioned at No. 44 in the list of 47 documents directed by the High Court of Gujarat to be provided to the Respondent no. 3 for inspection, is distinct from the Daily Summary of Information referred to in the said affidavit. It may be noted that the Daily Summary of Intelligence, routinely authored and signed by the Respondent no. 3, was sent every evening, inter alia to the Chief Minister. The Daily Summary of Intelligence also formed an integral part of the Weekly as well as Fortnightly Intelligence Reports prepared by the State Intelligence Bureau. It is pertinent that the said documents are required to be permanently preserved. (See- Pages 88 & 90 of the Paper book of the Application)
(iv). It was communicated to the Commission on 16/05/2011 that Mr. Balwant Singh IAS, the then Additional Chief Secretary, Home Department, confirmed fears of the Respondent no. 3 on 20/09/2010 that details of the deposition of the Respondent no. 3 before the SIT headed by Mr. R. K. Raghavan had been leaked and made available to the higher echelons of the Government of Gujarat. It might interest this Court that the Duty Registers of the SIB Control Room, the Staff Attendance Registers of the SIB Control Room and the Leave/Leave Resumption Registers of the Control Room and all Branches of the SIB are claimed to have been destroyed on 03/11/2010, viz.
only after the leakage of the testimony of the Respondent no. 3 before the SIT to higher echelons of the Government of Gujarat.
[7]. Conduct of the State:
[a]. It was the duty of the Applicant to have placed all the official records relevant to the ToR before the Commission at the earliest. The Applicant cannot be said to be absolved of its obligation by merely informing the Commission about the existence several documents pertaining to the Intelligence Bureau that were confidential and sensitive in nature. The records/documents sought from the Applicant as well as from the Commission were relevant and material to ToR and till date there is no explanation or justifiable reason given by the Applicant that will throw light as to why the same had not been forwarded. ( page no. -53 of the Paper book of the Application) [b]. It is now clear that despite there being a Commission appointed by the State, not only certain records never forwarded but certain records have been expediently and selectively destroyed during the pendency of the present inquisition.
[c]. These documents would go a long way in disclosing the role and conduct of the key constitutional functionaries as well as the adequacy of the administrative measures in dealing with the events that are the subject matter of the Inquiry being conducted by the Commission.
[I]. In view of the aforesaid facts and circumstances, the Respondent no. 3 seeks to point-out the deliberate manner in which the State is trying to misread the final Order dated 12/10/2012 of this Court.
(i). The language of the order of this Court is plain, clear and unambiguous. The letter and spirit of the said order contemplates seamless transition from the stage of production of the documents and the completion of inspection.
(ii). The strict time-bound completion of entire process within a very short-time, i.e., about 45 days with just a week s time available for the purposes of inspection, negates any other interpretation of the directions.
(iii). When it came to making the documents available to the Commission, the State did not object on the grounds of relevancy and is forbidden from taking that plea at this stage.
(iv). The documents that have been directed to be produced before the Commission are the contemporaneous records of the office of the DG & IGP and ADGP-Intelligence which would go a long way in unravelling the state of affairs prevailing at the relevant point of time. The only agencies who could provide useful information and supply materials to the Commission to find out whether there was involvement of any external or internal individuals/organizations in the planning and execution of the incidents under inquiry are the concerned officials of the State Police as well as the Intelligence Bureau.
Likewise, whether the Intelligence Bureau had informed the State about the possibility of such incidents and whether the State Police or the administrative machinery had adequately responded or ignored the warnings etc. can be found out only by appropriate appraisal and interpretation of the contemporaneous records and documents of the Intelligence Bureau.
(v). In fact if the State has nothing to hide, then it must not procrastinate any longer. The truth is that finally someone who is well versed with the contextual import of the said documents and records will be able to use his knowledge and experience to bring out relevant facts before the Commission, an onerous responsibility which the Applicant has been consistently avoiding till date.
(vi). If the State s plea to withhold such information and materials is upheld, the Commission of Inquiry will not be able to answer its TOR. Any inquisition into the TOR without the aid of these documents will be less than meaningful and would render the purpose and object of setting up such an inquisitorial body otiose and practically redundant.
[II]. The State, before the Commission, has taken the plea of privilege as some of the documents that have been forwarded are highly secretive and sensitive in nature . In respect of the same, it is humbly stated and submitted as hereunder:
[a]. Privilege cannot be claimed in a generalised manner and that too by making vague references to all the documents. There is no specific claim by assigning reasons as to specific documents.
[b]. It is well settled proposition of law that when the law requires a certain thing to be done in a particular manner, all other means of doing the same are precluded.
[c]. Section 123 of the Evidence Act deals with procedure to be followed in claiming privilege.
(i). The documents are required to be produced before claiming privilege.
(ii). There is no affidavit by a competent person recognized under law.
(iii). It is not even clear from the reply of the State dated 2/11/2012 as well as the letter dated 23/10/2012 or the order dated 2/11/2012 of the Commission as to the name or designation of the officer who is making the claim of privilege .
(iv). Bald and generalised assertions that the documents are confidential and that disclosure will result in public-injury and compromise national security without specific reference to each of the documents clearly indicates that these are mere excuses made by the State and in fact betrays their deep anxiety and fear regarding disclosure of potentially incriminating material.
(v). The manner of claiming blanket confidentiality by giving terse cryptic comments in a tabular-fashion, without having any regard to the nature of the records being sought, is clearly indicative of a hasty and perfunctory job done without any application of mind. No necessary details have been stated even in the reply dated 2/11/2012 that would have helped the Commission to decide the issue.
(vi). Privilege is a process which must be strictly complied with in accordance with law and is distinct from confidentiality or secrecy which is a matter of fact.
[d]. The purpose for which the present inspection was sought and the circumstances in which it has been granted by a specific order of this Court will have to be examined before entertaining the plea of privilege.
[e]. No privilege can be rightfully claimed merely because a document has marked as confidential .
[f]. Any reference to the provisions of Right to Information Act is irrelevant.
[g]. There is a substantial lapse of time since all these documents admittedly are of the year 2002 and this fact should also weigh Commission in rejecting the claim of confidentiality.
[h]. Demand for meaningful democracy in this country and transparency in the functioning of the government is now recognised as a widely accepted principle. As observed by the Supreme Court, democracy does not consist merely in people exercising their franchise once in five years. Time and again, unnecessary secrecy in the government functions has been held to be injurious to effective functioning of a democracy.
[i]. The Terms of Reference constituting the Commission has disclosed that the subject of the inquiry was a matter of definite Public importance . Additionally, the public at large also has the fundamental Right to know as to what happened at the relevant time when there was a systemic failure in the State of Gujarat. This right flows from Article 19(1)(a) of the Constitution of India.
[8]. The Respondent no. 3 is at pains to bring to the notice of this Court that the Commission has also not acquitted itself with distinction in the instant proceedings in view of the unambiguous direction of the High Court of Gujarat due to the following reasons:
[a]. That the Commission has been extremely indulgent with the State in not seeking production and custody of vital-records of the office of the Director General and Inspector General of Police as well as the State Intelligence Bureau for over 10 years.
[b]. As stated earlier, these records have the immense potential for throwing light on the nature and extent of the systemic failure and subversion that had occurred at the relevant time in the State of Gujarat and in fixing responsibility and accountability and public at large is vitally interested in the same.
[c]. The Respondent no. 3 has no access to the correspondence claimed to have been addressed by Applicant to the Commission which preceded the said W.P. in which the Applicant has informed the Commission about the existence several documents pertaining to the Intelligence Bureau that were confidential and sensitive in nature. It is stated and submitted that even if the Applicant has merely intimated about having custody of those records/documents, it was equally the duty of the Commission to call for and examine all such records for their relevance in answering the Terms of Reference or ToR . The non-performance of the duty of the Commission to call for such records has frustrated the aims and objects of constituting the Commission in order to throw light on the facts and circumstances of the death and destruction that took place in the State.
[d]. These records have only started trickling in, that too reluctantly, after a lapse of more than 10 years, after a specific and time-limit bound Order of this Court.
[e]. The Respondent no. 3 in association with the PUCL, had approached the Gujarat High Court under its writ jurisdiction as both the State authorities as well as the Commission had not permitted access and inspection to the Respondent no. 3 even when the same was repeatedly sought only with a view to provide meaningful assistance to the Commission.
[f]. When in these facts and circumstances, the Hon ble Court has granted inspection in a particular manner, it takes away any discretion vested in the Commission and the consequent responsibility of additional scrutiny before facilitating the inspection as directed therein.
[g]. The Commission s observation in the Note dated 19/10/2012 in respect of the fact that The Hon'ble High Court has therefore, rightly observed in its judgment (Writ Petition (PIL) No.216120 12) that it is for the Commission to decide the question of relevancy or otherwise of the documents ... ... is misinterpretation of the relief ultimately given in the said Order of the Hon ble Court dated 12/10/2012. The proper construction of the said order of the Hon ble High Court as to the question of relevancy would arise only after the undersigned files his affidavit pursuant to the inspection.
[h]. Any Judicial directive cannot be understood in abstraction and must be considered in the context in which such a directive was given. The directions made vide order dated 12/10/2012 by the Hon ble Gujarat High Court was, inter alia, in the context of the concerned State authorities as well as the Commission not providing the requisite access to the undersigned. The directions were rendered upon the solemn assurance of complete and prompt disclosure of all the records sought by the undersigned and the disclosure was directed specifically to enable access and inspection to the undersigned for the purpose of filing a comprehensive affidavit.
[9]. In view of the aforesaid facts and circumstances, a brief Para-wise reply to the present Application is as hereunder:
[A]. Para-1 In view of the averments made in the preceding paragraphs of the present Reply and it is respectfully stated and submitted that no clarification in the said Order is required.
[B]. Para-2 to 4- The reply to these paragraphs is contained in Para 2(d) & (e) of the present Reply.
[C]. Para-5 The State has chosen to disclose that the 9 (Nine) documents have been destroyed after its solemn assurance given before this Hon ble Court that none of the documents sought by the Respondent no. 3 has been destroyed. For the sake of brevity and in order to avoid unnecessary repetition, the Respondent no. 3 craves and seeks liberty to rely on the facts and arguments advance in this regard in the Paragraphs 4
(b) to (h) of the present Reply.
[D]. Para-6 All the rules of business and administrative instructions of any government are supposed to be followed keeping in mind the context. It is an admitted position that the State of Gujarat had notified the Commission in order to carry out an inquisition into the facts and circumstances as stipulated in the Terms of the Reference. The use of the phrase, unnecessary material is significant as for the State any document that could have afforded an insight into the roles and functions of key constitutional functionaries and high officials have been classified as unnecessary and not only not forwarded to the Commission but have been eventually destroyed.
[E]. Para-7 In view of the submissions made in Para 4(g), it is stated and submitted that in view of the fact that the State Government itself had constituted a Commission, these classifications will lose all their force and significance. Further, the classification so stated deliberately omits another category of documents that are required to be preserved for a period of 10 years . This category is significant as even as per the government rules, these documents could not have been destroyed in the year 2010.
[F]. Para-8 The factum of destruction of certain documents is not as innocuous or innocent as it is being made out. As already informed to the Commission on 16/05/2011, it was confirmed to the Respondent by Mr. Balwant Singh IAS, the then Additional Chief Secretary, Home Department, on 20/09/2010 that details of the deposition before the SIT headed by Mr. R. K. Raghavan had been leaked and made available to the higher echelons of the Government of Gujarat. It might interest this Court to note that the Duty Registers of the SIB Control Room, the Staff Attendance Registers of the SIB Control Room and the Leave/Leave Resumption Registers of the Control Room and all Branches of the SIB are claimed to have been destroyed on 03/11/2010, viz. only after the leakage of the testimony before the SIT to higher echelons of the Government of Gujarat.
[G]. Para-9 The issues raised are not being replied to as all these innuendoes were previously advanced before this Court and the same were strongly repelled vide the order dated 12/10/2012.
[H]. Para-10 It is wholly mischievous on the part of the State to belittle the significance of the documents which have been destroyed. If that would have been the case then the Commission would surely have been taken into confidence. Further, a seemingly innocuous document can, in conjunction with other facts and circumstances, assume a much larger significance.
[I]. Para-11 - In view of the submissions made in the preceding paragraphs of the present Reply, the misconception is that of the State and deliberately so particularly when their lie in respect of destruction of documents sought by the Respondent has been exposed.
[J]. Para-12 The Respondent no. 3 states that any extension of time-period as stipulated in the Order dated 12/10/2012 must be accompanied by immediate access to all those documents at Page Nos. 485-488 of the WP (PIL) No. 216/2012.
[K]. Para-13 This being a formal averment, hence no comments are being advanced.
[L]. Para-14 As this Application is legally untenable in view of the arguments advanced in Paragraph-2 of the present Reply and as the Applicant has chosen not to challenge the relevant part of the Order of this Hon ble Court, hence it is not a legally correct statement that the Applicant had no other alternative remedy and in view of the same this Application deserves to be disposed off.
[M]. Para-15 - This being a formal averment, hence no comments are being advanced.
[N]. Para-16 In view of the facts and circumstances and averments advanced by the Respondent, it humbly stated and submitted that this Court may dispose-off the present Misc. Civ. Application in the following terms:
(I). The Respondent no. 3 may be provided immediate and collective access to all the 47 documents that was granted as per the Order dated 12/10/2012 by this Court while disposing off the WP (PIL) No. 216/2012.
(II). Pass any other order or direction that may be deemed fit in the interest of justice.
9. After hearing the learned counsel for the parties and after going through the prayers made in this application, we find that the ground based on which this application has been filed is that there is an error apparent on the face of our order dated 12th October 2012 because of an unintentional wrong statement made by the learned Advocate General that the documents sought for by the writ-petitioners were not destroyed which we accepted. All that has been submitted in this application is for clarification and/or modification of the contents of paragraphs 6 and 9 of our order which are quoted below:
6. Be that as it may, since Mr. Trivedi has already submitted before this Court that his client will submit those documents, if not already produced, this question becomes inconsequential.
7. xxx xxx xxx xxx xxx
8. xxx xxx xxx xxx xxx
9. We have already pointed out that the learned Advocate General has already stated before us that those documents have not been destroyed and at the same time, those have also been sent to the Commission and if any of those documents has not yet been sent to the Commission, the same would be sent within seven days from this day.
10. Mr. Mihir Joshi, the learned Senior Advocate appearing on behalf of the respondent No.3 of this application, has seriously doubted the averments made in this application regarding wrong instructions given to the learned Advocate General as regards the destruction of some of the documents.
In other words, according to Mr. Joshi, it was not possible to believe that those officers, without verifying, through bona fide mistake, instructed the learned Advocate General that all those documents were in existence. Mr. Joshi contends that the documents sought for by his client are very much valuable for the purpose of unearthing the truth in the commission of enquiry and for the purpose of distorting the facts, those have been deliberately destroyed. Mr. Joshi contends that after having constituted a Commission in the year 2002 on the subject matter of Godhra incident and the aftermath riots for finding out the truth behind the incident, there was no justification for destruction of those very important documents even if it is assumed for the sake of arguments that in the ordinary course, those documents should be destroyed after the lapse of 5 years. Mr. Joshi further contends that those documents which have been now stated to be destroyed are, first, not destructible documents after the lapse of five years, and secondly, after having constituted a Commission for revealing the truth, the concerned authorities should not have destructed those documents even if those are required to be destructed after the lapse of five years. Mr. Joshi submits that knowing fully well that those have been destructed, a wrong instruction was given to the learned Advocate General by the concerned Police Officer. Mr. Joshi, therefore, prays for dismissal of this application.
11. Mr. Trivedi, the learned Advocate General appearing on behalf of the applicant, however, has opposed the aforesaid contentions and has submitted that according to the existing rules of destruction, those documents were destroyed and there was no mala fide intention on the part of his client in giving him the wrong instruction. Mr. Trivedi, therefore, submits that as a wrong instruction was given to him at the time of disposal of the Public Interest Litigation and on the basis of such wrong instruction, this Court passed the order dated 12th October 2012, the applicant is duty-bound to disclose such fact before this Court, and pray for modification/clarification of the above two paragraphs of our order dated 12th October 2012 where such wrong statement was relied upon.
12. This Court, in the course of hearing of this application, directed the State Government to place before the Court the actual order passed by the concerned officer approving the alleged order for destruction of the nine documents mentioned in this application and also to produce the record indicating such destruction. Pursuant to such direction, an affidavit was filed thereby annexing the xerox copy of the original order passed by the officers concerned by virtue of which those nine documents were destructed. Subsequently, this Court further directed the State to produce the original register containing those records of destruction. The State complied with such direction by placing the original Registrar containing the relevant order.
13. On the above aspect, Mr. Joshi made elaborate submissions for the purpose of convincing us that we should not believe those documents as proof of destruction of those documents and we should reject this application.
14. On consideration of the above materials on record, we are of the view that the subject matter of reference being enquired by the Commission constituted under the 1952 Act, there is no scope of entering into those aspects of the matter. It is pertinent to note that against our order dated 12th October 2012, Mr. Joshi s client moved a Special Leave Application before the Supreme Court in the month of April 2013 and the same was dismissed in the month of May 2013. It appears that the State of Gujarat did not move higher up against such order. Thus, our order dated 12th October 2012 has otherwise attained finality.
15. Once we find that the submissions made by the learned Advocate General as recorded in paragraphs 6 and 9 of our order dated 12th October 2012 that all the documents sought for by the respondent No.3 before us were available has been asserted to be a wrong statement made by the learned Advocate General on the basis of the instructions from the concerned officers, in our opinion, we should consequently modify paragraphs No. 6 and 9 of our order by recording such admission of wrong statement at the instance of the present applicant. Therefore, the statement in paragraphs 6 and 9 of our order dated 12th October 2012 should be clarified based on the above statement of the learned Advocate General that although the documents according to him were stated to be in existence, in fact, nine of those documents were already reported to be destroyed as asserted by the State. Even if at the time of hearing of the original public interest litigation, the learned Advocate General had submitted that nine of the documents sought for by the Respondent no. 3 had already been destructed, we could not pass any other direction than not to destruct any further document and to produce the remaining documents before the Commission leaving the question of relevancy or otherwise of the documents upon the Commission along with the other directions which we have already given in our order dated October 12, 2012.
16. We do not propose to enter into the question whether such assertion of fact regarding destruction of those documents prior to our order is true or not and it is for the Commission to decide such question. Similarly, it is also for the Commission to decide whether in view of the present law of the land, those documents could be legally destructed or even if those were destructible on the expiry of five years as claimed by the State, it was proper for the State to destroy those documents before the conclusion of the enquiry by the Commission.
17. Although in this application for clarification/modification the present petitioner has also prayed for clarification of the aspect regarding the grant of inspection of the documents to be produced by the State Government, we do not find any reason to further clarify our earlier order in this regard and at the time of hearing, Mr. Trivedi also did not press the said point.
18. The present application is, thus, disposed of only by clarifying our statement made in paragraphs 6 and 9 of the order dated 12th October 2012 regarding submission of the learned Advocate General by recording the stance of the State Government that nine of those documents had already been destroyed and that the statement of the learned Advocate General that those were in existence was made based on the alleged wrong instruction of the concerned officers then present in court.
19. We have already made it clear that we have otherwise not gone into the question whether those documents were really destructed in the year 2010 as claimed in the application or not and whether it is lawfully permissible to destruct such documents after constitution of an Inquiry Commission, and it is for the Commission constituted to answer those questions on the basis of evidence that will be adduced before the Commission. It is needless to mention that it is for the Commission to draw appropriate inference on the truth or otherwise of the statements made by the State in this regard.
20. The State must comply with our order of production of the documents sought for by the Respondent no. 3 except the above nine documents alleged to have been already destructed within a week from today if not already produced before the Commission.
21. With the above observations, this application is disposed of.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 53 of 53