Narendra Modi Government has justified before the Supreme Court its ongoing probe against social activist Teesta Setalvad in a case of alleged illegal exhuming of bodies of 2002 Gujarat riot victims, saying that she actually planned and executed digging of graves without permission in 2006.

In an affidavit, the Gujarat government claimed that during the investigations involving the accused, including her one time close aide Rai Khan Pathan, and also an independent witness, it has emerged that "Teesta Setalvad, the petitioner herein, was the main accused who has actually planned and executed this operation of digging of graves near Pandarwada through her staff."

The state government, responding to the notice issued by the apex court which on July 29 stayed criminal proceedings against Setalvad for her alleged role in the case, said the other accused have claimed innocence and blamed Setalvad for instigating them to carry out the operation which attracts offence under penal provision for entering into conspiracy for various offences.

"Exhumation of the dead bodies without prior permission of the competent authorities constitutes an offence under Section 192 (fabricating false evidence), 193 (punishment for false evidence, 201 (causing disappearance of evidence), 120-B criminal conspiracy), 295(A) (deliberate and malicious acts intended to outrage religious feelings) and 297 (trespassing on burial places) of IPC," it said.

It termed as totally 'concocted, false and misleading' Setalvad's claim that digging of graves was carried out after the relatives of deceased heard from the sweeper that there were some dead bodies buried in the forest land and their close relatives have been arraigned as accused.

The affidavit said, "Only unidentified and unclaimed bodies were given to the Nagarpalika for burial that too after performing necessary postmortem," and accused the social activist of instigating 'communal feeling' by digging out the bodies through her office bearer by calling media and local people. The matter is listed for hearing on November 24.

Setalvad had approached the apex court against the May 27 order of the Gujarat High Court refusing to quash the First Information Report (FIR) registered against her at a police station in Panchmahal district of the state in connection with exhumation of the bodies from a graveyard near river Panam in Gujarat.

It was alleged that in 2002, about 28 unidentified bodies of the riot victims from Pandarwada and surrounding villages in Khanpur taluka were buried in the graveyard. Earlier, the high court had declining to scrap the FIR, had quashed the summons issued to her terming her as absconding.

The high court had observed, in May 27 order, that by showing Setalvad as an absconding accused in the charge sheet filed in April, 'a glaring mistake has been committed by the investigating officer'.

The Gujarat government said, "It is pertinent to note that this incident of digging of graves was executed on December 27, 2005 and the very next day of the incident on December 28, a CBI team reached Lunawada and took over the investigation as assured by Setalvad to Khan".

"It is noteworthy that CBI takes over investigation only either on the request from the State Government and/or on the orders from the competent court, however, in this case neither there was any request from the state nor any court order, still CBI team reached Lunawada the very next day of incident. This action of the petitioner (Setalvad) itself speaks volumes about her clout, influence and meticulous planning," the affidavit said.

Gujarat Government also questioned the conduct of Setalvad, who after getting relief from the apex court on July 29 this year, came to the office of the Investigation Officer at about 12 noon 'in a victory style procession' with 30-40 supporters and media persons in the case.

Setalvad, who had been avoiding summons for probe, was given the last opportunity to appear before the Investigating Officer.

The FIR had alleged that Setalvad, who had earlier secured anticipatory bail from a local court in Panchmahal district, was the prime conspirator behind the incident.

The Gujarat Government affidavit said that in the facts and circumstances of the case 'no interference is called for by this (apex) court' and her petition should be dismissed to allow the investigation to a 'conclusive ending'.

The state government in its affidavit named five accused Rais Khan Pathan, Gulam Kharadi, Sikander Abbas, Qutub Shah Diwan, Jabir Mohammed who in their respective statement blamed Setalvad for instigating them. It also has named a TV journalist, who covered the digging operation, as a witness.

The affidavit gave reference of Rais Khan Pathan's statement to indicate that it was because 'of the clout and influence' of Setalvad that he committed the illegal act after he was allegedly assured that nothing will happen to him as the entire investigation will be taken over by the CBI from the state police.

It said that before the burial, as per order of the High Court, samples of blood and bones for DNA testing were taken by the CBI in the presence of an Executive Magistrate in which State police was not involved and the test reports received from Hyderabad laboratory were placed before High Court for consideration.

Khan was associated earlier with Setalvad's civil society organisation -- Citizen for Justice and Peace (CJP). The investigation into case began only last year as the accused had obtained stay on probe from the Gujarat High Court.