SC Makes The Best Possible History

• Retrial of the case in a court under the jurisdiction 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 wouldappoint 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". The investigation appears to beperfunctory and anything but impartial.
  
  

• "Government, like modern
  

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

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, glaringlydemonstrating subversion of justice delivery system with no congenial and conducive atmosphere stillprevailing, we direct that retrial shall be done by a Court under the jurisdiction of Bombay High Court"

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 beapparent from what has transpired so far, it was additional ground just and reasonable as well for acceptingthe additional evidence".

The judgement castigated the approach of the Gujarat High Court pointing out serious infirmities and thatits conclusions were lopsided and lacked a judicious application of mind:

"The justice delivery system was allowed to be taken for a ride, abused, misused and mutilated bysubterfuge. The investigation appears to be perfunctory and anything but impartial, without any definiteobject of finding out the truth and bringing to book those who were responsible for the crime."

"It is no acquittal in the eye of the law and no sanctity or credibility can be attached and given tothe so-called findings"

The Court said justice is depicted to be blind-folded so that it does not see the parties before it but theblind-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 atGodhra on February 27, 2002, a mob set fire to Best Bakery at Vadodara on March 1 resulting in the death of 14persons. 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 Courtnoted that the state had appealed against trial court’s acquittal only after the NHRCmoved the Supreme Court last August. The Court recalled that even the then the memorandum of appeal originally filed before the HighCourt was "an apology" and that improvements were made only after "this court expressed its unhappinessover the perfunctory manner in which the appeal was presented."

"It leaves much to be desired. One gets a feeling that there was really no seriousness in the State'sapproach in assailing the trial court's judgment. Whether the accused persons were really assailants or notcould have been established by a fair and impartial investigation.

"The modern day 'Neros' were looking elsewhere when Best Bakery and innocent children and helplesswomen were burning, and were probably deliberating how the perpetrators of the crime can beprotected."

"Criminal trials should not be reduced to mock trials or shadow boxing or fixed trials. The judicialcriminal administration system must be kept clean and beyond the reach of whimsical political wills or agendas andproperly insulated from discriminatory standards or yardsticks of the type exhibited by the mandate of theConstitution."

The Court also pulled up the Gujarat High Court for making "irresponsible"remarks against the NHRC and activists such as Teesta Setalvad. Expunging those lines, Justice Pasayat said, 

"TheHigh Court appears to have miserably failed to maintain required judicial balance and sobriety in makingunwarranted references to personalities and their legitimate actions before competent courts."

The Court, while directing the Gujarat Government to appoint a new Public Prosecutor, directed the DirectorGeneral 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 adequateprotection to witnesses and victims "so that they can depose freely without any apprehension of threat orcoercion from any person".

On appointment of a new public prosecutor, the Court again set a precedent by asking the Gujarat Governmentto 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 matterof appointment of a Public Prosecutor, in view of the unusual factors notices in this case, to accord suchliberties to the complainants party, would be appropriate."

'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 questionas to whether some people have become so bankrupt in their ideology that they have deviated from everythingwhich was so dear to him."

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

"The little drops of humanness which jointly make humanity a cherished desire of mankind had seeminglydried up when the perpetrators of the crime had burnt alive helpless women and innocent children. Was it theirfault that they were born in the houses of persons belonging to a particular community?"

"No religion teaches violence and cruelty-based religion is no religion at all, but a mere cloak tousurp power by fanning ill-feelings and playing on feelings aroused thereby. The golden thread passing throughevery religion is love and compassion. The fanatics who spread violence in the name of religion are worse thanterrorists 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-Godhraviolence. 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 "actualsaviours". On June 26 last year, all 21 accused were let off bythe court. Zaheera Shaikh, one of the key witnesses and the complainant, had hit the headlines after firstturning hostile and later surfacing in Bombay to tell a press-conference that she had turned hostile under pressure. She had named a BJP MLA, MadhuSrivastava 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 saidthat she was ready to tell the truth if there was a re-trial, preferably outside Gujarat. This had made theNHRC 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 "quitif you cannot prosecute the guilty". The Gujarat government had then approached the High Court to reopen the case whichupheld 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.

(With inputs from PTI, revised with additional quotes from the judgement on April 13.)