Without the acquiescence of the Narendra Modi government, the Supreme Court-appointed Special Investigation Team (SIT), probing the nine most heinous cases of the 2002 riots, may not be able to challenge the anticipatory bail granted by a lower court to Maya Kodnani, a state cabinet minister.

Kodnani had ignored SIT summons and then "absconded" before resurfacing to secure anticipatory bail after the SIT issued an arrest warrant against her in connection with the Naroda Patiya massacre.

VHP Leader Jaydeep Patel too had procured anticipatory bail in the face of the SIT arrest warrant, on similar charges.

According to the state Legal Department rules in Gujarat, the investigating agency has to first take its permission before attempting to move a higher court against a lower court order.

The rules state that it is the state Legal Department, which will decide if the prosecution's case is strong enough to move a higher court against the accused, and when the investigating agency should challenge the lower court verdict.

Gujarat State Secretary for Legal Department, M H Shah, told Newsline: "All public prosecutors are our Law Officers and have to take the state government's permission before moving against a lower court's order in a higher court, in Gujarat. The SIT, too, will have to follow these rules."

Highly placed sources said that Public Prosecutor Sudhir Brahmbhatt has already written to Shah's office for permission to challenge the anticipatory bail granted to Kodnani and Patel, in the Gujarat High Court.

"To fulfil regulation requirements, the SIT had asked Brahmbhatt to do so on Saturday, two days after the bail order. Brahmbhatt wrote to the state Legal Department on Monday citing strong grounds," a source said.

Shah said: "My office is yet to receive the SIT's letter. We will have to look at the grounds mentioned by the SIT and analyse them thoroughly first, before giving them a go ahead."

When asked why the SIT, which was appointed by the Supreme Court, needed to follow the state rules, Shah said: "It can be a special case for you, but for us it is like any other criminal case and needs the specified legal procedures to be followed. I am not very sure if any other state has such rules, but in Gujarat, we follow these rules in all criminal cases."

SIT chief R K Raghvan was unavailable for comments, but sources said the agency was waiting to hear from the Legal Department. "We have followed all rules so far and are expecting a reply from the Department. Our further proceedings will be based on the reply," an SIT official said.

SIT had filed three affidavits opposing the bail of Kodnani and Patel
Opposing the anticipatory bail pleas moved by Kodnani and Patel, the SIT had last week filed three affidavits before Sessions Judge A K Aswani, who was to hear the bail pleas. The two investigating officers in the Naroda Gam and Naroda Patiya cases, Deputy Superintendents of Police P L Mal and V V Chaudhary, had filed these affidavits opposing Kodnani and Patel's bail pleas.

Some of the grounds the SIT mentioned were: Both Kodnani and Patel are political personalities and can use their influence to scuttle SIT investigations; both are accused of serious offences like inciting mobs and leading communal rioters; twenty –two witnesses have accused Kodnani, while Patel has been named by 24.

That apart, Kodnani had been seen by some victims flaunting a ‘pistol-like’ weapon with a saffron band around her head that day. Elsewhere, Patel had been seen by several witnesses leading a mob near Anand Cinema in Naroda that day, according to the SIT affidavits.

Sources said that a day after Kodnani and Patel got bail, one of their counsels and Kodnani's personnel assistant went to the SIT office in Gandhinagar, reportedly offering to surrender the duo's passports.