Though Chief Minister Narendra Modi appeared before the Special Investigation Team, which is probing the 2002 riots cases, the Gujarat government has questioned in the Supreme Court the power of the SIT to summon persons and record their statements.

In its response to the petition filed by social activist Teesta Setalvad and others for reconstitution of the SIT, the Gujarat government on Friday pointed out that the court, in its April 27, 2009 order on Zakia Jaffrey's plea, merely asked the SIT “to look into the complaint.” (The case comes up for further hearing on April 19.)

However, “the SIT started calling persons named in the complaint [Mr. Modi was one of the 63 cited as accused in the complaint by Ms. Jaffrey, wife of the slain former Congress MP Ehsan Jaffrey] which is neither permissible in law nor contemplated in the order.” Despite this, the State fully cooperated with the SIT and “when it became apparent that Zakia Jaffrey will be called as a witness before the competent jurisdictional court where she will have to come in the witness box for examination-in-chief and cross-examination, the present application [to reconstitute SIT] is filed.”

The State government submitted that the SIT had already outlived its function entrusted with by the Supreme Court. The SIT had been ordered to continue till the completion of the trials only for reporting the progress.

“The question of making a prayer for reconstitution of the SIT is not only misconceived but is demonstratively [made] with some other object in mind,” it said.

“The State government had been contending that these NGOs are sending tutored witnesses and are fabricating evidence. It was only when the tutored witnesses sent by Ms. Teesta Setalvad before the SIT were not entertained by the SIT and when the SIT started recording the statements of witnesses under videograph, did a glaring discrepancy between pre-typed, pre-signed computerised statements brought by witnesses [prepared by Ms. Setalvad and her advocate M.M. Teermizi as admitted by the witnesses] come out”

The State said: “When the applicant found that her efforts to malign the State of Gujarat on false rumours contained in such statements prepared by her in advance may not be successful, she appears to have taken the stand that the SIT was not functioning properly.”

On Ms. Jaffrey's complaint, the affidavit said when she originally filed the complaint in 2006, she was interrogated but she did not cooperate and said she would not answer any question until a proper case was registered. During the deposition as a witness before the Nanavati Commission, she gave a different statement clearly at the behest of Ms. Setalvad and came up with the complaint.

The State alleged that Ms. Setalvad was trying to defend the accused in the Godhra train burning case and when these facts were brought out by the SIT, she started making allegations against the SIT itself and sought its reconstitution. The State requested the court to direct registration of a case against Ms. Setalvad and her accomplices and order an investigation.

The State also took the stand that under the Criminal Procedure Code, once the charge sheet was filed in the trial court, no third party could interfere with the trial.

“The question which needs to be examined seriously is the extent to which NGOs can interfere with investigation and trial.”

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