'You Quit If You Cannot Prosecute The Guilty'

The Supreme Court was scathing and trenchant today in its hearing on an appeal filed by National HumanRights Commission (NHRC), which has sought transfer of Best Bakery, Godhra Carnage and two other riot-relatedcases outside the state.

To strike the point home, during the 15 minute hearing, the CJI repeatedly alluded to the Prime Minister's advice to the Chief Minister of Gujaratduring the former's first visit to Gujarat after post-Godhra violence when he had said that he had advised theChief Minister to follow his raj dharma

In a scathing attack on the Gujarat government for filing an "eye wash" of an appeal in the BestBakery riot case, the Supreme Court cast serious doubts on the state's intentions in punishing the guilty, andobserved that it should quit if it cannot punish the rioters.

Flaring up after perusing the grounds of appeal filed in the High Court challenging acquittal of all theaccused in the case, a Bench of Chief Justice V N Khare, Justice Brijesh Kumar and Justice S B Sinhaquestioned the "raj dharma" of the Narendra Modi government.

An anguished Chief Justice Kharesaid:

"I have no faith left in the prosecution and the Gujarat government. I am not saying Article 356. Youhave to protect people and punish the guilty. What else is raj dharma? You quit if you cannot prosecutethe guilty," an anguished Chief Justice Khare said.

The Bench then summoned the Chief Secretary of the state and the Director General of Police and directedthem to be personally present before the Court on September 19 to answer as to who had drafted such an appeal:

"Even a lawyer of one year’s experience will not draft such an appeal. Is this an appeal?It is just an eyewash and nothing else. We will not be silent spectators. We will act if the state keepssilent before the high court," Khare said.

Additional Solicitor General Mukul Rohatgi, appearing for the state government, intervened to take apolitical dig by arguing "Gone are the days when a chief minister’s tenure depended on somebody’smercy. He is a democratically elected person," which provoked the Chief Justice to come out with a stingingretort:

"Democracy does not mean you will not prosecute the guilty".

The Gujarat government counsel tried weakly to pass the buck, in an echo of the letter written by the ChiefMinister to the President, by invoking the "malady in thecriminal justice system" and added that in the last 40 years of riots in the country not many riotershave been brought to book. He cited the example of 1984 anti-sikh riots cases and said that not a singleperson had been found guilty so far.

This angered the Court even more as it questioned the state government saying

"Are you saying that the rioters in Gujarat should also be acquitted. What else are yousaying?"

The court said there was no cross-examination of the witnesses who turned hostile:

"There appears to be some sort of collusion between government and prosecution in a casewhere 14 people were burnt to death and almost all the witnesses had turned hostile. Is this the wayprosecution is conducted before the trial court?" the judges asked.

Appearing for NHRC, senior advocate P P Rao read out the grounds of appeal filed by the state government inthe High Court in the Best bakery case and said despite the trial court indicting the manner in which wrongevidence was collected by prosecution and wrong accused were roped in, the state has not sought retrial of thecase.

After patiently hearing the NHRC, the Bench sought the response of the Gujarat government which repeatedlypleaded that it be given some time to amend the grounds of appeal while assuring that it would make them inconsonance with the views expressed by the apex Court.

It also said that the High Court, even if there was no prayer for re-trail, could order fresh trial andthat the apex Court should await the outcome of the appeal in the High Court.

The Bench, without taking note of the pleas of the state government, criticised it severely for not makingproper grounds of appeal before the High Court and still expecting the High Court to do everything to correctthe wrongs.

"The way you have conducted the prosecution before the trial court and the way you have filed theappeal, it appears to us that the same thing will be repeated before the high court.

"You do not take any plea and it is for the Courts to do everything. Is this an appeal. Even a counselwith one year's experience will not draft such an appeal. I know there are several eminent lawyers inGujarat," the Chief Justice said.

On the appeal, the Court said

"It appears to us that it is an eye-wash. It is just an eye-wash andnothing else."

Warning the state government that it would not be a silent spectator to all these acts andincidents keeping in view the prayer of the NHRC for transfer of the trail outside the state, the Bench said

"We will not be silent spectators. We will do it if the state keeps silent in its prayers before the HighCourt."

Expressing serious reservations over the manner in which the prosecution conducted itself in theBest Bakery case before the trial court, the apex Court said

"There is no cross-examination as to why somany witnesses turned hostile. This shows the nature of prosecution. "We do not have any trust left in your prosecution agency. There appears to be some collusion betweenthe government and prosecution. It is a case where 14 persons were burnt alive and is this the way prosecutionis conducted,"

the Court observed.

Rohtagi pleaded with the Court not to have an impression of collusion between the government and theprosecution and said that the apex Court should await the outcome of the appeal before the High Court.

The Bench, which was in an unforgiving mood, said

"What impression will one get if one looks into theappeal. The way you have conducted the prosecution before the trial court and the way you have filed theappeal, it appears you will repeat the same before the High Court."

Counsel for the government stated that there seems to be some shortcomings in the criminal justice systemas not many who have indulged in riots across the country have been punished.

When Rohtagi said that the law in this regard required to be amended, the Bench asked "who will amendit, the government or the Courts?"

Earlier, NHRC counsel had said that the trial court had observed that whenever riots took place, the policeinvariably arrived late and then indulged in roping in wrong persons and creating wrong evidence.

Saying that the trial Courts were helpless when the prosecution provided wrong facts and wrong accused, theBench observed

"We have absolute faith in them. But if you do not bring facts and evidence before them,what will they do than acquit the accused?"

The counsel for NHRC said that as the witnesses have turned hostile, the High Court could do nothing on thebasis of their statements and requested the Court to consider directing a fresh trial in the matter.

Solicitor General Kirit Raval represented the centre, though CJI Khare said at the beginning of the hearingthat he wanted Attorney General Soli Sorabjee, the number one law officer, to participate in the proceedings.Word was sent to Sorabjee through the court master but there was no sign of him till the end of the hearing.

(With PTI and agency reports)