For a fair trial

The Supreme Court issues notices to the Central and Gujarat governments, based on the National Human Rights Commission's petition seeking a retrial of the Best Bakery case.

in New Delhi

It is submitted that a mechanical adherence to the principle that "hundreds of criminals may escape, but one single innocent must not be punished" may result in adopting the easy course of acquitting the accused. While there is no quarrel with the proposition that not one single innocent must be punished, it is submitted that courts are expected to be sensitive and cautious to ensure that no criminal should also escape. The viability of criminal justice system is tested in such cases.

- The National Human Rights Commission, in its Special Leave Petition (SLP) in the Supreme Court against the June 27 verdict of the Fast Track Court of H.U. Mahida acquitting all the 21 accused in the Best Bakery case, relating to the murder of 14 Muslims in the communal violence in Vadodara on March 1, 2002.

THE Supreme Court Bench that heard the NHRC's petition on August 8 broadly appeared to be in agreement with this solemn principle when it issued notice to the Centre and the Gujarat government by treating the SLP as a petition under public interest litigation (PIL). The Bench, comprising the Chief Justice V.N. Khare and Justices S.B. Sinha and Arun Kumar, directed the Gujarat government to provide protection to the witnesses and their families and inform the court of the steps it had taken to do so, and the action taken against those who had allegedly threatened the witnesses.

The Best Bakery case resulted in the trial court acquitting all the accused for lack of evidence, primarily because during the trial most of the prosecution witnesses resiled from the statements containing the allegations against the accused, which they had given to the police. As it became clear subsequently, the witnesses turned "hostile" owing to intimidation and threats from the accused persons. A key witness, Zahira Sheikh, explained to the NHRC how she had, during her appearance before the trial court, to resile from the statement she had made to the police and named the persons who had threatened her and her mother. In its petition, the NHRC brought to the notice of the Supreme Court that even as one witness after the other, including the principal eyewitnesses, turned hostile, Judge Mahida made no effort to ascertain why this was happening. Quoting from the records, the NHRC noted that the cross-examination of the hostile witnesses by the public prosecutor during the trial was most perfunctory. For instance, it pointed out that Zahira Sheikh was not confronted with her signatures on her initial complaint registered with the police on March 2, 2002, wherein she had named 10 of the accused persons, and was not asked to explain under what circumstances she had made that statement.

Lal Mohammad, who had made a statement to the police on March 9, 2002, implicating the accused, gave a supplementary statement on June 16, 2002 wherein he mentioned that when his premises were attacked by the mob, he and his family members and others were given shelter and protected by some of the accused. "This dramatic volte-face by Lal Mohammad ought to have put the investigating agency on caution that external pressure was being already brought upon the witnesses to the crime," the NHRC said in its petition.

Again, though it was plain that Lal Mohammad, by making the supplementary statement, was not going to support the prosecution, he was examined as a prosecution witness instead of being dropped from the list. "Thus, instead of making efforts to strengthen the prosecution case, it appears that the steps to the contrary were being taken," the NHRC petition noted.

The NHRC also pointed out how the trial was reduced to a farce by doing away with a detailed cross-examination of the investigating officer who took the witness stand on June 21. On the same day, the Additional Sessions Judge, Fast Track Court No.1, Vadodara, completed the examination and recording of the statements of all the 21 accused persons under Section 313 of the Criminal Procedure Code (CrPC) and proceeded to hear arguments in part. The Fast Track Court, true to its name, delivered its judgment on June 27. The trial had begun on February 20.

In its petition, the NHRC sought the Supreme Court's direction to set aside the order of acquittal so that the case could be further investigated by an independent agency and the accused retried in a free and fair trial. The NHRC submitted that the Gujarat High Court, even if approached or being seized of the case, would not be able to give this relief, as only the Supreme Court has this power by virtue of Articles 136 and 142. Under Article 136(1), the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence, or order in any cause or matter passed or made by any court or tribunal. By invoking Article 142(1), the Supreme Court may pass such order as is necessary for doing complete justice in any cause or matter pending before it. The NHRC also filed a separate petition for the transfer of four other critical cases in connection with the attacks on the minorities in the State.

WAS the trial court totally helpless in the face of lack of evidence before it? Apparently, the trial court was under the impression that it had no powers and jurisdiction to find and establish that if the accused were not guilty, then who was the real offender, or to order compensation from the government to the sufferer. "The court of justice is not a court of justice in the real sense, but it is a court of evidence," Judge Mahida had remarked in his judgment.

The NHRC disagreed with this observation. There is nothing in either the CrPC or the Constitution that renders the judicial system helpless in a situation where there is a blatant violation of the right to fair trial. "A criminal trial is not a mere formality. When an offence is committed and the court is seized of the case either through complaint or police report, it becomes the duty of the court to ascertain the truth and render justice," the NHRC said in its petition.

There are provisions in the CrPC that can be invoked in order to enable witnesses to depose before the court in a fair and fearless manner, the NHRC pointed out. "Where one witness after the other is seen by the court to be resiling from the earlier statement made, it was incumbent upon the prosecution to apply to the court to have the trial conducted in camera under Section 9 (6) of CrPC. Even if the prosecution did not do so, the court was not powerless... to suggest that the trial should be held in camera," the NHRC pointed out.

Under Section 309 of the CrPC, the trial court can, for reasons to be recorded in writing, postpone the trial in order to ensure that a safe atmosphere is created to enable witnesses to depose fearlessly. It is also possible under Section 311 to recall and re-examine any person already examined, particularly if his or her evidence appears to it to be essential to the just decision of the case. The NHRC believes that these options were available to the trial court. More important, the NHRC observed that Judge Mahida's failure to order further investigation in the case in order to arrive at the truth and uphold the cause of justice had vitiated the whole trial. The NHRC argued that the Supreme Court ought to intervene in the matter as there was a serious infraction of the fundamental right of the victims of the crime and the witnesses to a fair trial. The court could set aside the order of the trial court, and direct further investigation and retrial in the case by exercising the powers of the appellate court under Section 385 of the CrPC, the NHRC pointed out.

Moreover, the trial court had come to the conclusion that "totally false evidence had been created against the wrong accused". Therefore, the NHRC said, the court should have proceeded against the investigating agency and its failure to do so would result in encouraging the fabrication of false evidence, which would strike at the very root of the criminal justice delivery system.

On August 8, the Supreme Court Bench appeared to have agreed broadly with the thrust of the NHRC's petition. It directed the Centre and the Gujarat government to submit within two weeks whether any scheme had been formulated to revamp the criminal justice system. However, in view of the appeal filed by the Gujarat government against the trial court judgment in the Gujarat High Court on August 7, the day before the NHRC's petition came up for hearing in the Supreme Court (apparently to pre-empt the NHRC's SLP, and question its jurisdiction), the Supreme Court Bench wanted to proceed step by step. It directed the State government to furnish within two weeks the statement of the witnesses given to the police before the trial court, the memo of the grounds of appeal filed by the State in the High Court, and the names of the lawyers appearing for the State government in the appeal, in the face of allegations that these lawyers were partisan and biased against the victims. More important, despite the State government's appeal in the High Court, the Supreme Court Bench expressed its resolve to monitor the case and not allow the appeal to be mere "eyewash".

AS it turned out, the Gujarat government's appeal in the High Court did not seek a retrial of the case or further investigation. Instead, the State government, in its appeal, was aggrieved that the trial court did not consider Zahira Sheikh's statement to the police as a first information report (FIR). Had the trial court considered her statement as an FIR, it would have certainly added weight to the prosecution case, but the trial court could have still acquitted all the accused, considering the serious errors of judgment it had committed. The Gujarat government, had it been sincere, could have appealed against the trial court's judgment within a few days of its having been delivered, without waiting for the mandatory 60-day maximum period. It filed its appeal only when it became clear that it was bound to invite strictures from the Supreme Court, which was set to hear the NHRC's petition.

The NHRC submitted that given the result of the trial in the Best Bakery case, it appears unlikely that the other trials would be able to take place in a free and fair manner and justice done to victims of the crime, witnesses and the accused. Therefore, the Commission filed a separate application under Section 406 of the CrPC before the Supreme Court for the transfer of the trial of four other serious cases, namely, the Godhra incident, the Chamanpura (Gulbarga society) incident, the Naroda Patiya incident, and the Sardarpura case in Mehsana district from Gujarat to other States. The Supreme Court's decision on the application would depend on the response of the State and Central governments to its notices and its appreciation of the gravity of the situation in Gujarat as brought out by the NHRC in its petition.