Debating India

BEST BAKERY CASE

SC Makes The Best Possible History

Outlook web bureau

Monday 12 April 2004

Never in the history of criminal jurisprudence had an order for retrial and reinvestigation been passed when both the trial court and the High Court had acquitted the accused in a case. But the Supreme Court has done just that and more: by transferring the case to Maharashtra and pulling up the prosecutors, it has shown a ray of light to the victims who had perhaps lost all hope of justice.

In a judgement of far reaching consequence, the Supreme Court today quashed the acquittal of all 21 accused in the Best Bakery case and said that faulty investigation was carried out by the Gujarat police prima facie with a motive to help the accused and directed its retrial in a Maharashtra court on a "day to day basis" and directed the Gujarat Government to appoint a new Public Prosecutor.

A Bench comprising Justice Doraiswamy Raju and Justice Arijit Pasayat in a 69-page judgement noted that right from the beginning, the stand of the key witness Zahira Shaikh was that the investigating agency was trying to help the accused persons and so was the public prosecutor.

Justice Pasayat, writing for the Bench, observed:

"If the investigation was faulty, it was not the fault of the victims or the witnesses. If the same was done in a manner with the object of helping the accused persons as it appears to be apparent from what has transpired so far, it was additional ground just and reasonable

Highlights

The Court said Justice is depicted to be blind-folded so that it does not see the parties before it but the blind-fold should not prohibit the Court from the facts before it.

Modern day ’Neros’

When Gujarat was engulfed with communal riots in the aftermath of the burning of Sabarmati Express at Godhra on February 27, 2002, a mob set fire to Best Bakery at Vadodara on March 1 resulting in the death of 14 persons. Zaheera, an eye-witness to the incident, had lost many of her family in the brutal carnage.

Lambasting the Gujarat Government for its laxity in bringing the guilty to book, the apex Court said:

"The modern day ’Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be protected."

The Court, while directing the Gujarat Government to appoint a new Public Prosecutor, directed the Director General of Police to oversee further probe and ordered the trial be conducted on a day-to-day basis.

Justice Pasayat, writing for the Bench, directed the Governments of Gujarat and Maharashtra to give adequate protection to witnesses and victims "so that they can depose freely without any apprehension of threat or coercion from any person".

On appointment of a new public prosecutor, the Court again set a precedent by asking the Gujarat Government to consult victims and witnesses before choosing an advocate. Justice Pasayat said:

"Though witnesses or victims do not have any choice in the normal course to have a say in the matter of appointment of a Public Prosecutor, in view of the unusual factors notices in this case, to accord such liberties to the complainants party, would be appropriate."

Holding that free and fair trial of the case was still not possible in Gujarat, the Bench said "keeping in view the peculiar circumstances of the case and the ample evidence on record, glaringly demonstrating subversion of justice delivery system with no congenial and conducive atmosphere still prevailing, we direct that retrial shall be done by a Court under the jurisdiction of Bombay High Court.

’Worse than terrorists’

Justice Pasayat went on to say,

"When ghastly killings take place in the land of Mahatma Gandhi, it raises a very pertinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him."

Justice Pasayat, also added that when a large number of people, including innocent and helpless children and women, were killed in a diabolical manner, it is disgraceful for the entire society:

"No religion teaches violence and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill-feelings and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy."

Brief History

14 people were burnt alive at the Best Bakery in March, 2002 in what has come to be known as post-Godhra violence. A fast track court had earlier heard the arguments in the case. Out of 120 witnesses named, 73 deposed and 41, including Zaheera Sheikh, and her entire surviving family, refused to identify the accused or identified them as their "actual saviours". On June 26 last year, all 21 accused were let off by the court. Zaheera Shaikh, one of the key witnesses and the complainant, had hit the headlines after first turning hostile and later surfacing in Bombay to tell a press-conference that she had turned hostile under pressure. She had named a BJP MLA, Madhu Srivastava and his cousin, Chandrakant, a Congress councilor, among those who had threatened her.

NHRC had sent a special team to Vadodara, and Zaheera, after changing her statement several times, had said that she was ready to tell the truth if there was a re-trial, preferably outside Gujarat. This had made the NHRC approach the court on July 31, asking them to hear the case again.

On September 12, 2003, the Supreme Court had severely chastised the Gujarat government, asking it to "quit if you cannot prosecute the guilty".  The Gujarat government had then approached the High Court to reopen the case which upheld the decision of the fast track court, in December last year. It was then that Zaheera had herself approached the Supreme Court asking for a retrial.

lien vers full text of the judgment

lien vers Best Bakery : Guj objects to case transfer to Maharashtra

P.S.

(With inputs from PTI)

Highlights

The Supreme Court today quashed the acquittal of all the 21 accused in the Best Bakery case and ordered fresh-trial and fresh-probe into the case while shifting the trial venue from Gujarat to Maharashtra. Following are the highlights of the judgement:

* Retrial of the case in a court under the jurisidiction of Bombay High Court.

* New Public Prosecutor to be appointed by Gujarat in consultation with victims and witnesses.

* Re-investigation of the case under the supervision of State Director General of Police.

* Re-trial to be conducted on day-to-day basis.

* Both Gujarat and Maharashtra to provide adequate protection to victims and witnesses.

* Gujarat Government to immediately transfer all trial Court records to Bombay High Court, which would appoint a trial Judge.

* Justice delivery system was taken for a ride and allowed to be abused, misused and mutilated.

* Public prosecutor acted more like counsel for accused.

* Government, like modern day ’Neros’, looked elsewhere when Bakery and innocent children and helpless women were burning.

* Severely criticises High Court for passing remarks against activists, like Teesta Setalvad, and NHRC.

Modi: Indicted Or Not?

’Modi should resign’

Congress has described the Supreme Court’s order quashing the acquittal of 21 accused in Gujarat riot case and its directive for their retrial as "a clear indictment of the ideology behind the massacre" and demanded dismissal of the Narendra Modi Government.

"I would request the Prime Minister to ask Modi to resign and if he doesn’t do so, he should sack him," party spokesman Kapil Sibal told reporters.

If Modi does not resign on his own, it meant he wanted to own that ideology and carry it forward, Sibal said, adding "Modi should not only resign but he should surrender himself to the law so that the people can get justice." Referring to the Supreme Court’s directive that the trial be transferred to Maharashtra, Sibal said this only showed the apex Court had no confidence in the system of justice being administered in Guajrat.

"I am grateful to Supreme Court and we salute to it for the judgement," he said and added that it was one of the rare four or five orders and "that is why the people have faith in Supreme Court." If BJP leaders still share dais with Modi, this would clearly mean they "do not want to implement the Supreme Court decision," he said. "People are not expected to get justice in Gujarat in view of the judgement," he added.

’Not an indictment’

Predictably, BJP said the Supreme Court order in the post-Godhra Gujarat riot case was not an "indictment" of the Narendra Modi Government and it has to be complied with "if the object is reinvestigation."

"The judgement of the court must be respected. If the object is to reinvestigate, that has to be complied with," Law Minister and party spokesman Arun Jaitley told reporters when asked about the apex Court’s verdict quashing the acquittal of 21 accused in the riot case and ordering reinvestigation and retrial of the case and shifting the trial to a Maharashtra Court.

Asked about Congress party’s demand for Modi’s resignation, he said: "I f a witness turns hostile and alleges that she has been pressured, how can you drag the Chief Minister into it? The court has commented on the trial and not indicted the Government. It cannot be linked to BJP or the poll process." Citing Tamil Nadu Chief Minister Jayalalithaa’s case, Jaitley said earlier also trials have been shifted to another state.

Do it for Kashmiri Pandits too

The VHP has been quick to come to the defence of  the Gujarat Chief Minister Narendra Modi, VHP by claiming that the judgement is not an indictment of his government and demanding that  the court take similar action in incidents of "genocide" against Kashmiri Pandits.

"We don’t comment on any judgement of the Supreme Court," VHP Secretary Surendra Jain told reporters but added that Modi had done everything possible to control the riots.

"Unlike in a riot situation earlier, army was called in within four days after the violence broke out in Gujarat. Besides, most of those who fell to police bullets were Hindus," he said.

The VHP leader said the judgement has opened a way for similar action in the case of Kashmiri Pandits, "thousands of whom have been killed and lakhs raped but without any punishment to anybody." Asserting that justice should be done to all, he said the Supreme Court would be petitioned to order trial of cases of "genocide" against Kashmiri Pandits outside the state and investigation by a police officer not from Jammu and Kashmir.

He alleged that police in Kashmir had not properly investigated cases of violence against Pandits, including massacres.  The activists, who have been pursuing the Best Bakery case, have never raised their voice over human rights violation of Kashmiri Pandits, Jain charged.

’Pushed roughly’ by Modi

A journalist in Gujarat today alleged that he was "pushed roughly" by Chief Minister Narendra Modi when scribes sought his reaction to the Supreme Court’s decision ordering retrial and fresh probe into the Best Bakery case.

Modi was to address an election rally in Godhara. As he was heading towards the dais after alighting from the helicopter the Chief Minister was surrounded by local mediapersons, who sought his reaction on the apex court’s judgement.

Local journalist Jignesh Parikh, who was among those who sought Modi’s reaction, later alleged that he was "pushed roughly" as a result of which he lost balance and fell on the ground along with another scribe standing behind him.

Security personnel swiftly intervened and moved away the the scribes, Parikh said. Modi immediately left the venue after the meeting.

It is significant that in an interview to a TV channel only recently, Mr Modi had insisted that like others, he too after all is human and affected by the loss of human life. He had gone on to say that since what is described as post-Godhra violence in Gujarat took place under his rule, he was aware that he would have to carry that weight all his life (’mujhe yeh zindagi bhar dhona paRega’).

’Justice has not been denied or delayed’

Social activist Teesta Setalvad, who brought the Best Bakery case of the post-Godhra communal riots in Gujarat before the Supreme Court today welcomed the apex Court’s judgement.

Talking to media-persons here Setalvad said she was very happy that the Supreme Court had shifted the trial outside Gujarat and ordered re-investigation apart from quashing the acquittal of 21 accused.

"This judgement is an example that justice has not been denied or delayed and the apex Court order has come just during the election," she said.

She said the key witness and survivor of the carnage Zaheera Sheikh would address media-persons in Mumbai in coming days.

Setalvad, who runs an NGO Citizens for Justice and Peace, decided to fight for Zaheera’s cause after a fast track court in Vadodara acquitted all the 21 accused and the Gujarat government did not even file an appeal to oppose this.

in Outlook India, Monday, April 12, 2004.

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