fresh matter throughout)

New Delhi, Nov 22 (UNI) The Supreme Court today asserted that it was not powerless when the state machinery was conducting a shoddy investigation into a large number of Gujarat communal riots cases and trying to shield the culprits, but was ''duty-bound to ensure justice''.

Justice K G Balakrishnan, heading a three-judge bench, was responding to the contention of the Gujarat government that a PIL in pending criminal proceedings was totally foreign as per the judgement of the apex court in the fodder scam case.

The court, while fixing February 20 as the next date of hearing, directed amicus curiae senior counsel Harish Salve to prepare a brief note of eight major incidents of riots in which 17 FIRs have been registered.

The court also directed to file brief notes of 1,900 cases in which closure reports filed by the Gujarat police have been found wrong by the Supreme Court-appointed Committee.

The Court, however, delinked three transfer petitions seeking the transfer of three suits for damages outside the state in which Gujarat Chief Minister Narendra Modi has been made defendant number one and fixed December 4 for consideration of three transfer petitions, which have been filed by the widows of those killed during riots seeking damage to the tune of Rs 26 crore. The court asked counsel for the petitioner how a Chief Minister can be personally made a party in suit for damages. The petitioner's counsel Indira Jaisingh, however, submitted that the Chief Minister has already filed his written statement in the suit and no such objection has been raised.

The court also said it is not a normal case but involveS failure of state machinary to control law and order and in such cases pil may not be totally foreign in pending criminal proceedings.

''Does it not amount to total breakdown of constitutional machinary in the state?'' Mr Salve also told the court that the complainants or the members of the victims families have given affidavit that their statement were not properly recorded by the state police and in many cases writen complaints were not received by the police officers.

The Gujarat government had earlier challenged the locus standi of the petitioners who were neither family members nor relatives of the victims and said petitions filed by third party under the garb of PIL are not maintainable, and therfore the same should be dismissed.

The court, however, was not inclined to agree with the contention raised by the state in its application and made it clear that if there is failure on the part of the state to rule in accordance with the law then this court cannot remain a mute spectator.

The court had earlier directed an additional district and sessions judge of Delhi to submit a report regarding 1,950 cases in which Gujarat police filed closure reports which were accepted by the magistrates without application of mind.

The National Human Rights Commission (NHRC) is one of the petitioners seeking transfer of trial of criminal cases outside Gujarat to ensure free and fair trial in the cases in which the activists of Sangh parivar are culprits and the BJP government in the state is facing allegations of making every possible effort to block the administration of justice.

According to the Gujarat government, once the investigation is complete and a chargesheet has been filed this court can not interfere.

The court will decide the legal issues regarding maintainability of the petitions first. The hearing will take place on February 20, 21 and 22 next year.

The Supreme Court will then also consider the issue of the protection of the witnesses.

Other judges on the bench were Justices Lokeshwar Singh Panta and D K Jain.

The majority judgement in Bihar fodder scam case was delivered by Justice KG Balakrishnan with Justice AR Lakshmanan concurring with him while Justice S H Kapadia delivered a dissenting judgement holding that if large scale defalcation of public funds was alleged and efforts for stalling the administration of justice are evident than PIL can be entertained even if the petititoner is a politician.

Railway Minister Lalu Prasad and his wife and former Bihar Chief Minister Rabri Devi are among the accused in fodder scam case which include former state Chief Minister Jagannath Mishra also.

UNI AKS/SC SI RP GC1858