'Re-open The Case'

Investigation and Prosecution 

The Best Bakery case is among the most serious instances of violenceduring the Gujarat carnage of 2002. Apprehending that the statepolice would not be able to conduct a fair, unbiased and thoroughinvestigation, the National Human Rights Commission (NHRC) inits report of April 2002, had recommended that the case be handedover to the CBI. For similar reasons, a PIL pleading for transferof the investigation to the CBI was also filed in the SupremeCourt. 

The incident involved the gruesome killing of 14 peoplewhen the Best Bakery, in the Hanuman Tekri area of Vadodara,was attacked by a large mob (see PUCL-Vadodara Shanti Abhiyanreport on the violence, pp. 60-62). There have been allegationsthat police failed to take adequate action to save the victimsduring the attack (see PUCL-VSA report, p.61), that lasted formany hours. Ironically, the officer in charge of investigationof the Best Bakery case was PI (DCB) P. P. Kanani, who has beenrepeatedly named for his involvement in brutal harassment ofMuslims in a number of areas of Vadodara city (Taiwada, Bawamanpura,Memon Colony, and Panigate) during the period of violence (seePUCL-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 Gujaratcarnage of 2002. However, the manner in which the investigationwas carried out and the case heard have done little to inspireconfidence among the victims of violence or the public at largethat justice would be done. Not only was the investigation entrustedto the very same police force whose role during the violencehas been under a cloud (and indeed headed by a police officerprominently accused of grave misdemeanor against Muslims duringthe violence), but the public prosecutor arguing the case isreputed to have a bias against Muslims, while his deputy is along-time member of the RSS. Furthermore, the general climatefollowing the violence has created a sense of insecurity amongMuslims. In this context, it is obvious that extraordinary careshould have been taken to assure the security of witnesses andto forestall the possibility of their intimidation or manipulation.However, there is no evidence suggesting that such care was indeedtaken.

Given this setting and background, the judgement acquitting allthe accused comes as no surprise. The judgement has drawn widespreadcriticism and caused consternation within as well as outsidethe country.

It is necessary to stress again that, to ensure justice in sucha sensitive case, it was absolutely imperative that the courtshould have directed the police to provide the maximum possibleprotection and security to all witnesses. The failure of thecourt to make any arrangements towards this end constitutes amajor and fatal lapse in a case of this nature. Neither did thecourt intervene to prevent police officers accused of bias andmisdemeanor 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 ofhis witnesses. Under the given circumstances (which include themajority of prosecution witnesses "turning hostile"), this cannotbut raise doubts about the credibility of the PP.

The PP also did not bother to place on record or follow up thereport of the NHRC, which (based on depositions before it duringits hearings in Vadodara) contained information relevant to thecase. Neither did the PP refer to or follow up on media reportsof intimidation of witnesses. There was therefore a clear failureto place on record all relevant materials, pursue all leads,and seriously consider the contradiction between the amendedstatements of the witnesses and the numerous reports appearingin the media, in the NHRC report and in fact-finding reportsof citizens' organizations, which were similar in nature to theretracted 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 prosecutionconducted the case.

Despite one witness after another turning "hostile", the Prosecutionnever requested the court for an adjournment to investigate thisunusual situation and attempt to strengthen its case. This isa poor reflection on the assiduousness with which the case waspursued. It would appear that the PP was less than conscientiousin the exercise of his duty. Taken together with the points madeabove, it seems clear that the investigation and presentationof the case by the prosecution was half-hearted, insincere, andnot pursued in a manner designed to secure justice.

The Judgement

The judgement in the Best Bakery case must be seen against thisbackground. A striking feature of the judgement is that, whileit passes adverse comments about the shoddy police investigationand the failure of the prosecution to present adequate evidence,it does not go beyond this general criticism either to orderreinvestigation of the case or to recommend specific action againstthe erring police officers for this grave dereliction of duty.

There is nothing in the judgement to suggest that adequate attentionwas paid to the serious and highly unusual circumstance thatthe majority of the witnesses "turned hostile", and the possiblereasons for this disturbing turn of events. It should have beenobvious to any objective observer that this pointed to a situationwhere a gross miscarriage of justice was likely to result. Insteadof investigating the possible causes of such a large number ofretractions, the judgement has accepted them at face value.

There can be only two reasons for the retraction of statementsby witnesses:

(1) The statements were improperly recorded by the police (asclaimed by the witnesses who "turned hostile"). Apart from thefact that the recording of false or fabricated evidence by thepolice would constitute a serious crime, this suggests that thepolice sought to weaken its own case by presenting untenableevidence hoping that it would not stand in the court.

(2) The second possibility is that statements were indeed recordedby the police, which were broadly correct, but were retractedby witnesses because of intimidation or other methods of manipulation.The fact that some of the witnesses who have retracted theirstatements made similar statements (to those initially recordedby the police) to the NHRC, human rights groups like PUCL- VadodaraShanti Abhiyan and the media suggests that their statements werewithdrawn or altered under duress. 

Most recently, an importantwitness, Sehrunissa Sheikh (mother of key witness Zahira Sheikhand widow of the Best Bakery proprietor), who was present inthe Best Bakery when it was attacked, has stated in a tape-recordedinterview given to The Indian Express (July 6 Vadodara edition,page 1), that she lied before the court because she had receivedthreats, leading her to fear for her life if she spoke the truthabout what she had witnessed. PUCL-VSA expects that this willbe the case with other witnesses too.

We believe that both kinds of situations occurred with respectto the retraction of statements by witnesses, i.e., that someof the witnesses did so under duress and out of fear, while thepolice may indeed have falsely implicated a few others in thecase as witnesses.

The defence has argued that only the FIR of March 1, 2002 (ofone Raizkhan Amin Mohammed Pathan) is admissible in the BestBakery 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 consideringthe fact that statements similar in import to the March 4th FIRwere made by witnesses before several agencies and/or organizationswell after March 4, 2002, and affirmed, according to media reports,as recently as February 2003. For instance the same Zahira Sheikhgave incriminating evidence before the NHRC during March 2002,and before the Citizens' Tribunal consisting of eminent retiredjudges during May 2002.

Apart from these inexplicable lapses, the judgement of the fasttrack court did not take into account the widely reported NHRCreport, 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 seriouslywith the apprehensions presented in the NHRC report.

Justifying the Outcome of the Case?

In contrast to the sketchy treatment of the facts at hand, asizeable part of the Best Bakery judgement (in fact the last8 pages out of a total of 24 pages) is devoted to establishinga context and rationale for the violence. This section of thejudgement contains gratuitous statements, and observations andspeculations with little immediate relevance to the case. Theobservations and rationalizations in this section include assertionssuch as the following, which speak for themselves:

(1) "The policy of industrialization, following the example ofthe Soviet Union, helped create conditions for communal riots."

(2) ".... keeping vote banks in view, the frequent yoke of reservationshas been troublesome for the country .... it is a reality thatbecause 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 isthe enduring policy of divide and rule of the British."

(4) "When police arrive on the scene of a riot, they arrest curiousbystanders, with the result that the prosecution is riding adead horse which can never pass the finishing post."

(5) "At the time of the Mahabharata, great men like Bhismapitamahaand Dronacharya had sided with unrighteousness, only so thatthe country may not be divided."

(6) "The Aryan people came into this country from the North Polararea. Muslims came from Persia and with Ghazni, and Parsis fromIran."

(7) " It needs to be said that if one's identity and loyaltydo not lie toward one's land, one is likely to be destroyed."

(8)" .... the word Dharma nirpekhsa (or "secularism") has cometo connote freedom without rules. Freedom without rules meanslicentiousness."

This necessarily brief sample of the statements and interpretationspresented in the judgement should provide a flavor of their rigorand accuracy. The "arguments" in this section of the judgementseem to suggest that riots in general are an outcome of certaindeep historical and political factors which essentially boildown to the creation of Hindu-Muslim antagonisms created by theBritish "divide and rule" policy. This would imply that the violencein the present case can also be explained in such general andvague terms. Also, this diverts focus from the specific detailsof the present violence, its likely proximate causes and perpetrators,and dilutes the criminal nature of the barbaric acts committedin the specific instance. None of these seem to merit closerattention and analysis. The judgement also suggests that mobsin a riot situation are "mad/crazy" and individuals in a mobare in a mental state in which there is a loss of individualjudgement and responsibility. This contributes to exoneratingindividuals for their responsibility and culpability in a heinouscriminal act, and the high likelihood that there was plannedviolence which was not a spontaneous act of "mob madness".

Taken in toto, the judgement completely fails to consider togetherthe serious anomalies in the case, and accepts at face valuea prosecution case whose authenticity and sincerity even a laypersonwould have strong reason to doubt. The casual and cavalier mannerin which the evidence has been presented and heard in this casecan only result, as in the words of the ex-Chief Justice of India,Dr. A. S. Anand, in a "grave miscarriage of justice", with direimplications for the entire country. In a case of this magnitudeand importance, in which 14 people were brutally killed overa period of many hours, it would appear that there were onlyvictims but no perpetrators. From the judgement, one might beexcused for concluding that only history was at fault. The caseand this judgement will set an ominous precedent which is boundto erode people's faith in the fairness and ability of the systemto deliver justice, and especially that of weaker sections andminorities in society.

Demands

(1) PUCL-Vadodara demands that the case be reopened and furtherinvestigated by a neutral and competent agency like the CBI.

(2) Police and other State officials against whom there are accusationsof communal bias or misdemeanor against victims of violence,witnesses or other members of the Muslim community, should betransferred to ensure that they are not involved in investigationsof the cases, or in a position to intimidate or otherwise influencepotential witnesses.

(3) The Prosecutor and team in a fresh trial should be acceptableto the victims, having no links whatsoever to organizations orpolitical formations accused of complicity in the violence. 

(4) Action should be taken against any police officials foundguilty of falsification of evidence, dereliction of duty or biasedbehavior in the course of investigations.

(5) Concrete and adequate steps must be taken to provide securityto witnesses, and towards creating an atmosphere of confidencein 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