PUCL, July
2003
Press Release, July 7, 2003
Best bakery case -
PUCL demands fresh trial
"... judgement contains gratuitous statements,
and observations and speculations with little immediate relevance to the
case."
Investigation
and prosecution
The Best Bakery case is among the most serious instances of violence during
the Gujarat carnage of 2002. Apprehending that the state police would
not be able to conduct a fair, unbiased and thorough investigation, the
National Human Rights Commission (NHRC) in its report of April 2002, had
recommended that the case be handed over to the CBI. For similar reasons,
a PIL pleading for transfer of the investigation to the CBI was also filed
in the Supreme Court. The incident involved the gruesome killing of 14
people when the Best Bakery, in the Hanuman Tekri area of Vadodara, was
attacked by a large mob (see PUCL-Vadodara Shanti Abhiyan report on the
violence, pp. 60-62).
There have been allegations that police failed to take adequate action
to save the victims during the attack (see PUCL-VSA report, p.61), that
lasted for many hours. Ironically, the officer in charge of investigation
of the Best Bakery case was PI (DCB) P. P. Kanani, who has been repeatedly
named for his involv! ement in brutal harassment of Muslims in a number
of areas of Vadodara city (Taiwada, Bawamanpura, Memon Colony, and Panigate)
during the period of violence (see PUCL-VSA report pp.135 & 138)
The Best Bakery case is the first to be tried by a "fast track"
court specially set up to try cases of violence during the Gujarat carnage
of 2002. However, the manner in which the investigation was carried out
and the case heard have done little to inspire confidence among the victims
of violence or the public at large that justice would be done. Not only
was the investigation entrusted to the very same police force whose role
during the violence has been under a cloud (and indeed headed by a police
officer prominently accused of grave misdemeanor against Muslims during
the violence), but the public prosecutor arguing the case is reputed to
have a bias against Muslims, while his deputy is a long-time member of
the RSS. Furthermore, the general climate following the violence has created
a sense of insecurity among Muslims. In this context, it is obvious that
extraordinary care should have been taken to assure the security of witnesses
and to forestall the possibility of their intimidation or manipulation.
However, there is no evidence suggesting that such care was indeed taken.
Given this setting and background, the judgement acquitting all the accused
comes as no surprise. The judgement has drawn widespread criticism and
caused consternation within as well as outside the country.
It is necessary to stress again that, to ensure justice in such a sensitive
case, it was absolutely imperative that the court should have directed
the police to provide the maximum possible protection and security to
all witnesses. The failure of the court to make any arrangements towards
this end constitutes a major and fatal lapse in a case of this nature.
Neither did the court intervene to prevent police officers accused of
bias and misdemeanor during the violence from handling the investigations.
In the absence of any directives from the court, the Public Prosecutor
(hereafter PP) also never raised the issue of the security of his witnesses.
Under the given circumstances (which include the majority of prosecution
witnesses "turning hostile"), this cannot but raise doubts about
the credibility of the PP.
The PP also did not bother to place on record or follow up the report
of the NHRC, which (based on depositions before it during its hearings
in Vadodara) contained information relevant to the case. Neither did the
PP refer to or follow up on media reports of intimidation of witnesses.
There was therefore a clear failure to place on record all relevant materials,
pursue all leads, and seriously consider the contradiction between the
amended statements of the witnesses and the numerous reports appearing
in the media, in the NHRC report and in fact-finding reports of citizens'
organizations, which were similar in nature to the retracted statements
of the witnesses who had turned "hostile", but completely contrary
to the witnesses' amended statements. These lapses constitute fatal flaws
in the way the prosecution conducted the case.
Despite one witness after another turning "hostile", the Prosecution
never requested the court for an adjournment to investigate this unusual
situation and attempt to strengthen its case. This is a poor reflection
on the assiduousness with which the case was pursued. It would appear
that the PP was less than conscientious in the exercise of his duty. Taken
together with the points made above, it seems clear that the investigation
and presentation of the case by the prosecution was half-hearted, insincere,
and not pursued in a manner designed to secure justice.
The
judgement
The judgement in the Best Bakery case must be seen against this background.
A striking feature of the judgement is that, while it passes adverse comments
about the shoddy police investigation and the failure of the prosecution
to present adequate evidence, it does not go beyond this general criticism
either to order reinvestigation of the case or to recommend specific action
against the erring police officers for this grave dereliction of duty.
There is nothing in the judgement to suggest that adequate attention was
paid to the serious and highly unusual circumstance that the majority
of the witnesses "turned hostile", and the possible reasons
for this disturbing turn of events. It should have been obvious to any
objective observer that this pointed to a situation where a gross miscarriage
of justice was likely to result. Instead of investigating the possible
causes of such a large number of retractions, the judgement has accepted
them at face value.
There can be only two reasons for the retraction of statements by witnesses:
- The statements were improperly recorded by the police (as claimed
by the witnesses who "turned hostile"). Apart from the fact
that the recording of false or fabricated evidence by the police would
constitute a serious crime, this suggests that the police sought to
weaken its own case by presenting untenable evidence hoping that it
would not stand in the court.
- The second possibility is that statements were indeed recorded by
the police, which were broadly correct, but were retracted by witnesses
because of intimidation or other methods of manipulation. The fact that
some of the witnesses who have retracted their statements made similar
statements (to those initially recorded by the police) to the NHRC,
human rights groups like PUCL- Vadodara Shanti Abhiyan and the media
suggests that their statements were withdrawn or altered under duress.
Most recently, an important witness, Sehrunissa Sheikh (mother of key
witness Zahira Sheikh and widow of the Best Bakery proprietor), who
was present in the Best Bakery when it was attacked, has stated in a
tape-recorded interview given to The Indian Express (July 6 Vadodara
edition, page 1), that she lied before the court because she had received
threats, leading her to fear for her life if she spoke the truth about
what she had witnessed. PUCL-VSA expects that this will be the case
with !
other witnesses too.
We believe that both kinds of situations occurred with respect to the
retraction of statements by witnesses, i.e., that some of the witnesses
did so under duress and out of fear, while the police may indeed have
falsely implicated a few others in the case as witnesses.
The defence has argued that only the FIR of March 1, 2002 (of one Raizkhan
Amin Mohammed Pathan) is admissible in the Best Bakery case, while the
FIR of March 4, 2002 (of the "star witness" Zahira Sheikh) was
manipulated by the police. Astonishingly, the judgement accepts this argument
without even considering the fact that statements similar in import to
the March 4th FIR were made by witnesses before several agencies and/or
organizations well after March 4, 2002, and affirmed, according to media
reports, as recently as February 2003. For instance the same Zahira Sheikh
gave incriminating evidence before the NHRC during March 2002, and before
the Citizens' Tribunal consisting of eminent retired judges during May
2002.
Apart from these inexplicable lapses, the judgement of the fast track
court did not take into account the widely reported NHRC report, which
had indicted the state administration and security - particularly the
police - for their role during the violence. It is difficult to understand
why in the entire process of prosecution, it was not deemed necessary
to follow up evidence or engage seriously with the apprehensions presented
in the NHRC report.
Justifying the outcome of the case?
In contrast to the sketchy treatment of the facts at hand, a sizeable
part of the Best Bakery judgement (in fact the last 8 pages out of a total
of 24 pages) is devoted to establishing a context and rationale for the
violence. This section of the judgement contains gratuitous statements,
and observations and speculations with little immediate relevance to the
case.
The
observations and rationalizations in this section include assertions such
as the following, which speak for themselves:
- "The policy of industrialization, following the example of the
Soviet Union, helped create conditions for communal riots."
- ".... keeping vote banks in view, the frequent yoke of reservations
has been troublesome for the country .... it is a reality that because
of reservations, violent riots keep breaking out."
- "The disputed happenings were a reaction to the Godhra episode,
but the enduring and everlasting cause for communal riots is the enduring
policy of divide and rule of the British."
- "When police arrive on the scene of a riot, they arrest curious
bystanders, with the result that the prosecution is riding a dead horse
which can never pass the finishing post."
- "At the time of the Mahabharata, great men like Bhismapitamaha
and Dronacharya had sided with unrighteousness, only so that the country
may not be divided."
- "The Aryan people came into this country from the North Polar
area.Muslims came from Persia and with Ghazni, and Parsis from Iran."
- " It needs to be said that if one's identity and loyalty do not
lie toward one's land, one is likely to be destroyed."
- " .... the word Dharma nirpekhsa (or "secularism") has come to connote freedom without rules. Freedom without rules means licentiousness."
This necessarily brief sample of the statements and interpretations presented in the judgement should provide a flavor of their rigor and accuracy. The "arguments" in this section of the judgement seem to suggest that riots in general are an outcome of certain deep historical and political factors which essentially boil down to the creation of Hindu-Muslim antagonisms created by the British "divide and rule" policy. This would imply that the violence in the present case can also be explained in such general and vague terms.
Also, this diverts focus from the specific details of the present violence,
its likely proximate causes and perpetrators, and dilutes the criminal
nature of the barbaric acts committed in the specific instance. None of
these seem to merit closer attention and analysis. The judgement also
suggests that mobs in a riot situation are "mad/crazy" and individuals
in a mob are in a mental state in which there is a loss of individual
judgement and responsibility.
This contributes to exonerating individuals for their responsibility and
culpability in a heinous criminal act, and the high likelihood that there
was planned violence which was not a spontaneous act of "mob madness".
Taken in toto, the judgement completely fails to consider together the
serious anomalies in the case, and accepts at face value a prosecution
case whose authenticity and sincerity even a layperson would have strong
reason to doubt.
The casual and cavalier manner in which the evidence has been presented
and heard in this case can only result, as in the words of the ex-Chief
Justice of India, Dr. A. S. Anand, in a "grave miscarriage of justice",
with dire implications for the entire country. In a case of this magnitude
and importance, in which 14 people were brutally killed over a period
of many hours, it would appear that there were only victims but no perpetrators.
From the judgement, one might be excused for concluding that only history
was at fault. The case and this judgement will set an ominous precedent
which is bound to erode people's faith in the fairness and ability of
the system to deliver justice, and especially that of weaker sections
and minorities in society.
Demands
- PUCL-Vadodara demands that the case be reopened and further investigated
by a neutral and competent agency like the CBI.
- Police and other State officials against whom there are accusations
of communal bias or misdemeanor against victims of violence, witnesses
or other members of the Muslim community, should be transferred to ensure
that they are not involved in investigations of the cases, or in a position
to intimidate or otherwise influence potential witnesses.
- The Prosecutor and team in a fresh trial should be acceptable to
the victims, having no links whatsoever to organizations or political
formations accused of complicity in the violence.
- Action should be taken against any police officials found guilty
of falsification of evidence, dereliction of duty or biased behavior
in the course of investigations.
- Concrete and adequate steps must be taken to provide security to
witnesses, and towards creating an atmosphere of confidence in which
it will be possible for witnesses to depose fearlessly.
Signed by following Members of PUCL, Vadodara:
Kirit Bhatt
Rohit Prajapati
S. Srinivasan
Trupti Shah
Johannes Manjrekar
Renu Khanna
Deepta Achar
J. S. Bandukwala
Jehanara Rangrez
Mansoor Saleri
Ishaq Chinwala
Tapan Dasgupta
(R) ROHIT PRAJAPATI / TRUPTI SHAH
37, PATRAKAR COLONY,
TANDLJA ROAD, VADODARA - 390 020, GUJARAT, INDIA
PHONE/Fax NO : +91-265-2334461 (O) 2412499
E-mail NO : rohit_trupti@yahoo.com <mailto:rohit_trupti@yahoo.com>,
rt_manav@sancharnet.in <mailto:rt_manav@sancharnet.in>