SIT has no power to summon,SC can’t stay post-Godhra cases

The Gujarat government in its affidavit on Friday said the Supreme Court does not have the power to stay the ongoing trial in the post-Godhra communal riots and that the SIT cannot summon chief minister Narendra Modi and others.

The affidavit comes in response to the apex court’s April 6 decision to consider the application made by Teesta and certain others seeking stay on the trial and transferring the case to the CBI. The applicants had alleged that the SIT was functioning in a biased manner.

“I state and submit that though this Hon’ble court merely required SIT, in order dated 27th April 2009 ‘to look into the complaint’, the SIT started calling persons named therein and started recording their statements which is neither permissible in law nor contemplated in the aforesaid order,” the affidavit said.

The apex court at the last hearing while mulling the idea of staying the trial had also asked the State to drop IPS officers–Geeta Johri and Shivanand Jha from the SIT. The case would come up for hearing on Monday.

Stoutly opposing stay of the trial, Gujarat said, “once the investigating agency has filed a charge sheet after conducting an investigation under supervision and monitoring of this hon’ble court, in the respectful submission of the State Government, the jurisdiction of this court,under Article 32 of the Constitution of India would come to an end,” and cited a number of earlier rulings.

The state took the plea that under Section 173(8) of the CrPC once the chargesheet is filed as in the present case, an aggrieved party can approach only the trial court to challenge the alleged shortcomings or the inadequacy of the investigation.

The state also expressed surprise at the resignation of the special public prosecutor R K Shah and attributed its link to the application in the apex court for stay of the trial and transfer of the case to the CBI.

“It is surprising to note that the stage at which the said learned special public prosecutor tendered his resignation at the time when a prayer of the applicant for re-constitution of the SIT was under consideration,” the government said.

Shah had earlier resigned complaining that the trial judge and the SIT were not extending him necessary cooperation in conducting the prosecution.

According to the government, Shah had resigned at the fag end of the prosecution when 295 prosecution witnesses had been examined including 60 police officers.

“The state of Gujarat is unable to appreciate as to why after substantially completing the prosecution case, suddenly the learned special public prosecutor realised that the behaviour of the learned designated judge is not proper.

“The state of Gujarat is also at a loss to understand a sudden feeling in the mind of the learned special public prosecutor that the SIT is not co-operating at a stage where these many witnesses are already examined successfully and in absence of any material witness turning hostile,” the affidavit added.