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August 8, 2003
CJP and
Zahira Shaikh Petition the Supreme Court
The Citizens for Justice and Peace through its
secretary Teesta Setalvad and Zahira Shaikh have filed a special leave
petition ( SLP) 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 HonÂ’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 itÂ’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. Â…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 Suhel Tirmizi and Mr.
Mihir Desai, advocates in Ahmedabad and 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.