The Best Bakery verdict

A case for re-investigation or a fresh trial.

THE Best Bakery riot judgment marks another sad chapter in the history of our criminal justice system. Calamitous in their impact, such decisions have become as frequent as railway accidents in India that go unchecked, and, distressingly there is nobody who can be held accountable. Shoddy police investigations and the inability - sometimes the unwillingness - of judicial officers to ferret out the truth, if necessary by ignoring and circumventing police inadequacies, are a fact of life that we somehow have to contend with if we are to retain our faith in the rule of law.

Justice V.S. Malimath, who submitted a weighty report only recently on the woes of the system, must be squirming. But he knows how expert committee reports like his are rendered absolutely worthless by the awesome human ingenuity to trash, if not demolish, the best of systems. This is what is exactly happening in India. The lack of shame in scuttling the rule of law cuts across party lines, and there is no hope of any qualitative change unless there is a revolution of sorts that transforms the average Indian psyche. While it is a universal truth that an individual man's inhumanity against another man cannot be ended, we can do enough to tone down group insanity. By this count, all of us in India who have something or the other to do with the system have miserably failed.

The first feature of the Vadodara judgment that strikes an observer is the elaborate theorising by the Sessions Judge on how communal violence takes place in the country. While he needs to be complimented for refusing to sound pedestrian and mundane as many judges do, how far his good prose is relevant to the issues that were before him is an interesting question. I agree with many human rights activists who seem to believe that he could rather have focussed more on the task of how to render justice to the victims, even against odds thrown up in the form of witnesses going back on their earlier deposition before the police. (39 of the 73 witnesses examined in the court turned hostile. These included the complainant and key witness Zahira Sheikh who has now openly admitted to the media that she lied in court because of fear of reprisal.) The Sessions Judge's diatribe against the reservations policy, however well argued, seems equally out of place. It is, however, for the higher judiciary to rein in lower courts from indulging in obiter dicta that distract one from the sum and substance of a judicial order.

The Judge's serious charge against the investigation was that totally unconnected and innocent individuals had been put up by the police as accused in the case relating to the ghastly incident in which 14 persons (11 Muslims and three Hindus) were burnt alive in Vadodara on March 1, 2002, to avenge the Godhra carnage of February 27. Apart from the major witnesses resiling from their statements to the police, the fact that the First Information Report (FIR) was filed four days after the outrage was exploited by the defence. The Judge was carping in his comments on the quality of the investigation. While his criticism may be entirely valid, I wonder whether he showed any understanding of the inherent difficulties of the police in getting at the truth hidden in group violence.

Any police officer will tell you how the contending parties work overtime immediately after a clash to indulge in obfuscation of facts just to mislead the investigator. The first tactic is for the aggressor to file a counter-complaint so that the victims' story is discredited. The police willy-nilly have to register two FIRs even when it is clear who triggered the incident and who the real aggressors were. Any failure to do so invites adverse criticism, and allegations soon fly that the police had been compromised by the real accused. No police officer - however incompetent or biased he may be - will open himself to this charge. Hence, at the earliest instance, the two FIRs on an incident distort the truth. In Vadodara, to the best of my knowledge, there was no second FIR because the victims were overwhelmingly on one side and the latter were utterly defenceless to indulge in any retaliation. Even if it were so, more than in any other crime, in communal violence, witness reluctance to come forward with the truth is the greatest handicap of the police. This is why the latter often resort to the basically undesirable but the most practical course of generally finding the facts of an occurrence and "distributing" them, sometimes logically and sometimes thoughtlessly, among the various witnesses. This is the "padding up" - a favourite and colourful police expression - that goes on day in and day out, very often to strengthen a case, and occasionally to dilute one for dishonest purposes.

Such an exercise is most blatant in high-profile cases such as Best Bakery where feelings run very high and the police are under unbelievable pressure to go to court with a hotchpotch charge-sheet that will temporarily buy peace for the government and the police from a baying press and the public. At the end of the day, especially when a Judge calls the bluff, the government goes scot-free, and it is the unfortunate investigator who faces the music in the form of disciplinary action.

One must remember that the Best Bakery case was one of the five cases that the National Human Rights Commission (NHRC) wanted the Gujarat government to hand over to the Central Bureau of Investigation (CBI), a suggestion that was squarely turned down. Looking back, this decision was flawed, and the State government could have saved itself the considerable ignominy now heaped on its investigating agency. I am confident that the CBI would have done a far better job. It is not because the CBI sleuths are more competent. It is mainly because the CBI is less susceptible to local pressures and would have fearlessly gone in search of the truth. And, since there are so many levels in the CBI which vet each case, gross inadequacies in the evidence would normally have been addressed before filing a charge-sheet.

The NHRC has shown commendable zeal in pursuing the case as it seems outraged at the verdict. Its team is at work. I am almost certain that it will ask for re-investigation. Even if it does not, being a matter of grave public importance, and in the interests of justice, there is a need for re-investigation or a fresh trial. This becomes all the more necessary because the complainant has unequivocally admitted that she lied before the trial court out of fear. How does one go about this?

Under Section 173(8) of the Criminal Procedure Code, an officer in charge of a police station can do further investigation in a case even after sending a final report to the competent Magistrate, provided he has come by further oral or documentary evidence. There are judicial decisions to the effect that such investigation is permissible even after the Magistrate has taken cognisance. Generally, this is done with the knowledge and permission of the court concerned. It is highly doubtful that this provision is applicable to a case where the trial has been completed and orders pronounced. Even if this is legally permissible, prosecuting the same accused who now stand acquitted is not allowed under Section 300(1) as long as the acquittal remains in force.

It will, however, be open to the state to go on appeal to the High Court. In this eventuality, under Section 386, the High Court can find the accused guilty and pass a sentence as per law. Another option open to it is to reverse the order of the lower court and direct further inquiry or a re-trial. A re-trial is a rarity, and a Supreme Court ruling contemplates this only in "glaring cases of injustice resulting from some violation of fundamental principles of law". Even in such a scenario, given the fact that so many of the witnesses had gone back on their statements to the police during the first trial, it is again a moot question as to what value will attach to their subsequent statements during the re-trial.

In the context of the Best Bakery case, Section 391 is another relevant and significant provision that may facilitate the process of rendering justice to the victims. Under this, the Appellate Court may, for reasons recorded, order taking of additional evidence. It can itself take such evidence or direct the Sessions Court to do so. In my opinion, this being an extraordinary case, if the Gujarat High Court decides to summon and examine key witnesses to arrive at the truth, it would have done yeoman service to the cause of innocent victims of communal violence in the country. The witnesses so summoned will depose with confidence because of the more solemn ambience that prevails in High Courts as compared to Sessions Courts.

The next question is whether, sensing the public outrage at the Best Bakery verdict, the Gujarat High Court will on its own invoke its revision powers. Under Section 397, the High Court can suo motu call for the papers with the Sessions Court for "satisfying itself ... as to the correctness, legality or propriety of any finding, sentence or order". Such interventions are few and far between. It must also be remembered that Section 401(3) is categorical that this power of revision does not "authorise a High Court to convert a finding of acquittal into one of conviction".

Finally, how do we discourage witnesses from going back on their deposition to the police while giving evidence at a trial? The disease is growing in our country, and there is widespread helplessness, if not endorsement, in such instances of abominable conduct. The obvious thing to do is to penalise such perjury as laid down in Section 193 of the Indian Penal Code. There is a feeling that the Best Bakery case is eminently suitable for such punitive action. It has been specifically suggested that Zahira should be so proceeded against because she has openly admitted her guilt, though for reasons easily understandable. Here, the immediately aggrieved person is the Vadodara Sessions Judge. Whether he will lay a complaint before the appropriate Magistrate is a matter of conjecture. (Interestingly, Section 344 of the CrPC confers summary powers on a Sessions Judge and a Magistrate to try and convict a witness for knowingly or willingly giving false evidence before him.) Thus, there is no legal handicap here for a judicial officer to proceed against one committing perjury. What is lacking here is a sense of indignation. However, the extraordinary circumstances under which the young lady gave false evidence needs a sympathetic response. She did not have any dishonest intention to mislead the court. Penalising her will be a travesty of justice. It is rather the system which permits witnesses to be intimidated that cries for our attention.

The Witness Protection Act of the United States has afforded some comfort to witnesses in that country to depose before courts without fear. The Malimath Committee is said to have dealt with this in passing. Serious action is called for in this matter. Bringing in such a law to discipline witnesses could somewhat take care of the problem. But then remember, such a course of action will only harm the interests of many in high places in our country who survive on buying up witnesses or intimidating them whenever by sheer accident they get caught for illegal activities and are arraigned in court! This is why I am not very sanguine that the powers that be will ultimately have the political will to enact a Witness Protection Act in our country. They could just stop with indulging in some "loud thinking"!