Crime Against Humanity
August 8, 2003
CJP and Zahira Shaikh file SLP in Supreme Court
The Citizens for Justice and Peace through its secretary Teesta Setalvad and Zahira Shaikh have filed a special leave petition (DD 16231) in the Supreme Court today praying for a retrial of the BEST Bakery carnage trial outside Gujarat. The respondents in the SLP are the State of Gujarat, the accused in the trial court, Madhu and Chandrakant Srivastava, the Vadodara police and the union government. The detailed prayers in the petition are:
1) Central Bureau of Investigation or any independent agency be directed to carry out fresh investigation into the entire Best Bakery case, under the constant monitoring of this Hon’ble Court;
2) Witnesses in the Best Bakery case be provided protection;
3) Prosecutions be launched for acting and abetting arson, looting and killings and for other related offences in the Best Bakery incident against the then Commissioner of Police, Vadodara and the officers of Panigate Police Station, Vadodara who were attached to the same during 1st and 2nd March, 2002
4) Central Bureau of Investigation be directed to investigate the role of Madhu Srivastava and Chandrakant Srivatsava in respect of the facts set out in the Petition.
In this 150 page SLP the Petitioners have set some of the following grounds for quashing of the trial court order. Some excerpts:
1. The impugned judgement is based on evidence which was given under threat, intimidation and fear. The said order is therefore bad in law and liable to be set aside.
2. Fair trial is a fundamental feature of our criminal justice system and the
Constitutional scheme. This is so not just from the point of view of the accused but also from the point of society in general and from the victims in particular. It has been held to be an essential ingredient of Article 21 of the Constitution of India. From the perspective of the victim it is absolutely essential that the criminal be found guilty and be punished. If this process of detecting the criminal or finding him guilty receives a setback due to faulty investigation, insufficient care and protection of the witnesses, inadequate representation in the court or inability of the court to ensure that to the best of his abilities the truth is discovered, it would lead to a miscarriage of justice and need a fresh trial with the defects of the earlier trial ironed out.
3.The present case is one where at all levels there has been a miscarriage of justice. The Investigation was defective, the witnesses were not protected, the public prosecutor glossed over his job of effective representation of the victims and the Learned Judge mechanically applied his mind to the facts of the case.
4.The trial of the accused was conducted in an hostile atmosphere. Prosecution did not take sufficient precaution to brief the witnesses or ensure that witnesses were not under any pressure. To the best of the knowledge of the Petitioners none of the witnesses were briefed by the Public Prosecutor in advance and none of the witnesses who turned hostile were confronted with their earlier statements.
5.The main eye witness to the incident, who had consistently identified the culprits has come out in the open and stated that she was threatened into turning hostile. Other witnesses have also explained the circumstances under which they turned hostile. They are willing to testify before the competent court and subject themselves to cross examination.
6.It is undisputed that Best Bakery and surrounding areas were attacked by a mob on 1st and 2nd March, 2002. It is also undisputed that 14 persons were killed during this attack. Eye witnesses to this incident have admittedly survived this incident and are now willing to come forward and narrate the true state of events as they took place and identify the criminals. The circumstances under which they turned hostile have been sufficiently explained by the witnesses.
7.The State has abdicated its responsibility in protecting the witnesses against threats and intimidation. This has been done in order to protect the perpetrators.
8. The Public Prosecutor failed to carry out his duties in as much as after the witnesses turned hostile he did not confront them with their earlier statements and did not adequately cross examine them. He did not even put a suggestion to the witnesses that they were turning hostile due to pressure or intimidation. If the witnesses were sufficiently confronted with their earlier statements or sufficiently cross examined there was a significant possibility of truth coming out.
9.The Petitioners submit that by and large in the eyes of the victims of the Best bakery carnage, it is not possible for them to get justice anywhere within the State of Gujarat. This is also an apprehension shared by thousands of other victims. Therefore the petitioner No.2 in her individual capacity has with some others approached this Honorable Court for investigation of 14 carnages in Gujarat to be handed over to CBI. This is still pending despite repeated applications for expedited hearing. They strongly feel that either covertly or overtly police supported the rioters during the carnage. They also strongly believe that the police have thereafter deliberately scuttled investigation into the carnage by various methods such as faulty registration of FIRs, refusal on many occasions to apprehend the rioters, etc. It is also a strong belief that the prosecutors are going out of their way to help the accused and ensure that the rioters go scot free. No serious prosecution has taken place as yet concerning the Gujarat carnage. A large number of cases have been closed apparently on account of lack of evidence. A number of fact finding reports have recorded that witnesses have been made to turn hostile under threats and intimidation. The victims also perceive that witnesses have turned hostile because of the complicity and inaction of the State Government. In these circumstances it is not possible for witnesses, at least in the Best Bakery case to fearlessly appear before any court in Gujarat and depose. For a fair and transparent trial to take place and for meeting the ends of justice it is essential that the trial in the Best bakery case to be shifted outside Gujarat.
10.The trial has led to a grave miscarriage of justice. The actual perpetrators of arson, loot and murder have gone scot free.Victims have been denied the fruits of a fair trial. Nearly 2000 persons died during the carnage in Gujarat. Not one person has as yet been convicted. It is essential that in order for the victims to have faith in justice delivery system that a fair and impartial retrial in the present case be ordered.
11. The Petitioners are not aware whether the State has filed any appeal in the present case or not despite its declarations after the NHRC filed it’s SLP before the Supreme Court. In any event the Petitioners are suspicious of the bonafides of the State in diligently pursuing the appeal even assuming that they have filed one.
The SLP petition also contains a general prayer:
There has been a grave miscarriage of justice in the Best Bakery case. This is not a solitary instance but epitomises the plight of other trials too in Gujarat. After the Partiton violence, the Gujarat carnage shook the conscience of the nation and the world. It rattled every Indian who stands committed to the Indian Constitution and the Rule of Law. Godhra was a shocking incident and the guilty need to be punished. But the abdication of State Responsibility in anticipating Godhra and in dealing with the post-Godhra carnage must not be forgotten. The levels of State Complicity in the Violence were chillingly visible in the pre-planned nature of the attacks and the bestiality of the killings.
Faith needs to be redeemed. Faith in the Indian system, faith in the Indian experiment, faith in fair play, justice and the Rule of Law. …From disillusionment and despair there can only arise hope. The developments in the Best Bakery case in the past month signify that hope. Zahira Shaikh has shown her ultimate hope in the Indian system. The other petitioners are backing her resolve. It is now for the system, the honourable Apex Court to respond to this fervent appeal for justice.
Mr. Mihir Desai, advocate Mumbai part of the group India Centre for Human Rights and Law has drafted the petition. A panel of senior Supreme Court lawyers will appear for the CJP in this petition.