By Advocate S.K. Jain
1. A business concern known as ´Best Bakery´ at Vadodara was burnt down by an unruly mob of a large number of people on March 3, 2002. In the ghastly incident, 14 persons died. The attacks were a part of retaliatory action to avenge the killing of 56 persons burnt to death in the Sabarmati Express on February 2, 2002.
2. By judgement dated June 27, 2003 the trial court directed acquittal of the accused persons. The trial court observed that the police arrived at the scene of occurrence about eight hours late and by that time all the culprits had run away and the police rounded up innocent persons.
3. Zahira Sheikh, an eyewitness, appeared before National Human Rights Commission (NHRC) stating that she was threatened by powerful politicians not to depose against the accused persons. The NHRC filed a Special Leave Petition (SLP) against the judgement of acquittal, which was treated as a petition under Article 32 of the Constitution of India. Zahira and another organisation called ´Citizens for Justice and Peace´ also filed the SLP (Criminal) challenging judgement of acquittal passed by the trial court.
4. The High Court, after analysing the evidence, came to the conclusion that the police had manipulated by roping false witnesses of the accused. It further held that the affidavits filed before it were not true. The High Court also observed that the appellant Zahira had been used by some influential persons with vested motives. The Hon´ble High Court rejected the prayer and ordered production of additional evidence and/or retrial.
5. In an unprecedented judgement delivered on April 12, 2004, the Hon´ble Supreme Court set aside the judgements of the trial court and the Gujarat High Court. The Hon´ble Supreme Court has allowed the applications for additional evidence and has ordered retrial of the accused persons in a state outside of Gujarat.
6. It is noteworthy that in para 86 of the judgement, the Hon´ble Supreme Court has observed that the Gujarat High Court appears to have miserably failed to maintain the required judicial balance and sobriety when making unwarranted references to personalities and their legitimate moves before competent courts. The Hon´ble Supreme Court has thus expunged and deleted contents of para 3 of the High Court judgement on the remarks against NHRC.
7. In para 72 of the judgement, apart from other observations/remarks, the Hon´ble Supreme Court has observed as under:
?The modern day ´Neros´ were looking elsewhere when Best Bakery and innocent children and helpless women were burning and were probably deliberating on how the perpetrators of the crime can be saved or protected.? The law and justice become flies in the hands of these ´wanton boys´.
8. I am of the considered opinion that the Hon´ble Supreme Court judgement in Best Bakery case is not primarily based on evidence on record. It is in fact a treatise on what constitutes ´fair trial´ in a pluralistic society. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society. In a pluralistic society, the interests of a minority is paramount and is not to be treated completely with disdain or as persona non grata. A fair trial must inspire confidence of the minority in the administration of justice. (Burning to death of 56 Karsevaks in the Sabarmati Express a day earlier was of little consequence as against burning to death of 14 persons by a mob in Best Bakery on March 1, 2002.
9. Life is larger than law. How could the Chief Secretary and Director General of Police of Gujarat, when examined in open court on September 19, 2003, admit that the police had arrived at the scene of occurrence eight hours late, that by that time the culprits had run away, that the police had no option but to round up innocent persons and that statements of witnesses recorded u/s 161 of the court were manipulated to rope in wrong persons as accused. It is submitted that it was not necessary to summon and examine the said two officials in the court. It is unfortunate that Hon´ble Supreme Court has, albeit unintentionally, heavily relied upon the statement of the said two officials and wrongly concluded that the investigation of the case was perfunctory, that the trial was not fair and that ´Neros´ were looking elsewhere when Best Bakery case was burning. Nothing is farther from the truth than these observations.
10. The Supreme Court judgement is indeed an unprecedented judgement as the same is based on Nehruvian concept of secularism rather than on evidence on record or on rule of law. It is amazing that the Hon´ble Supreme Court has not maintained judicial balance while making unwarranted remarks in para 72 of the judgement. It is submitted that the fate of Best Bakery victims would not have been any different even if Gujarat had been a Congress-ruled state on March 1, 2002. It is submitted that the Hon´ble Supreme Court may suo moto expunge para 72 from the judgement dated April 12, 2004.