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 involvement 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 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:
(1) 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.
(2) 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:
(1) "The policy of industrialization, following the example of the Soviet Union, helped create conditions for communal riots."
(2) ".... 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."
(3) "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."
(4) "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."
(5) "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."
(6) "The Aryan people came into this country from the North Polar area. Muslims came from Persia and with Ghazni, and Parsis from Iran."
(7) " 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."
(8)" .... 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.
(1) PUCL-Vadodara demands that the case be reopened and further investigated by a neutral and competent agency like the CBI.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
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