First bench of the court comprising Chief Justice S.J. Mukhopadhaya and Justice Akil Kureshi reserved the judgment after hearing Advocate General Kamal Trivedi and counsel for the petitioner, Mukul Sinha.
During the arguments Friday, Trivedi opposed the plea stating that the petitioners had no right to ask the commission to summon someone and seek their cross examination under Commission of Enquiries Act. Sinha, on the other hand, submitted that the government had made a reference to the commission under the Act to examine the code and conduct of people who may be involved in the case.
He stated that when the government had already made a reference, it couldn't turn around and deny the probe. The court had earlier raised a query of its jurisdiction to entertain the plea. The court had asked both the parties whether it can direct a commission of inquiry while exercising the power under article 226 of the constitution.
Addressing this issue, Sinha had submitted: "The commission of inquiry is a statutory body and is duty bound to inquire upon the reference made to it in accordance with law. He stated that when a grievance is raised, then a court of law can decide and direct the commission in an appropriate manner.
The bench had questioned as to whether the witnesses before the commission had right to cross-examine and if so then under which provisions of law.
The judges had sought to know whether the witness, if so permitted, then would have the right to cross-examine the person under section 8B of the said Act.
Sinha told the court that questioning of Chief Minister Narendra Modi, other ministers and police personnel, was essential by the commission as failing to do so would amount to take away the whole merit of constituting the commission for the purpose of making a public inquiry regarding the 2002 Godhra Carnage incident and subsequent communal riots.
He submitted that the commission has to enquire into the adequacy or inadequacy of the administrative measures taken during the incidents, role and conduct of the chief minister and others named in their application, and the role of political leaders in dealing with the situation.
He stated that the chief minister, being the constitutional head of the state, was the main witness to answer the administrative measures taken. He stated that only Modi, being in power at that time and being the head of the government, can answer certain questions.
Sinha had moved an application before the Justices (retired) Nanavati-Mehta enquiry commission, the panel which is probing 2002 communal riots, to summon the chief minister and few others and sought to cross examine them over their alleged role in the riots.
After the plea was rejected, Sinha moved the high court. Civil rights body Jan Sangarsh Manch thereafter approached the division bench after its plea was turned down by a single judge bench. Earlier, in April, 2007, the NGO moved an application before the probe panel urging it to summon Modi and others for questioning, which was later rejected stating the application was premature and lacked merit.
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