31 July 2003

NHRC MOVES APEX COURT TO SHIFT GODHRA, BEST BAKERY AND 3 OTHER CASES OUTSIDE GUJARAT

From Jal Khambata

NEW DELHI: In an extraordinary intervention in the cases relating to Gujarat's communal carnage of 2002, the National Human Rights Commission on Thursday moved the Supreme Court to set aside the Best Bakery judgment, and order reinvestigation of the case by an independent agency and its retrial in any other state by a competent court.

It also prayed the Apex Court to enhance efficacy of the criminal justice delivery system by laying down, under the powers granted to it under Article 142 of the Constitution, "to lay down guidelines and directions in relation to protection of witnesses and victims of crime in criminal trials which can be adhered to both by the prosecuting and law enforcement agencies as well as the subordinate judiciary."

The NHRC has sought to bring out in its petition to the Supreme Court that there was no fair trial in the Best Bakery case as all the accused charged with the heinous crime of charring to death 12 persons got scot free and the crime remained unpunished. It has made out a case that the witnesses could not tell the truth to the trial court for want of any protection from the authorities or the court.

Through a separate application filed under Section 406 of the Criminal Procedure Code, the NHRC also urged the Supreme Court to transfer out four other serious cases for their trial outside Gujarat. These cases include one relating to the Godhra train burning of February 28 that triggered the riots.

The other three most heinous cases picked up by the NHRC for persuading the Apex Court for trial outside Gujarat are: The Chamanpura (Gulburga society) incident in which a former Congress MP was among those killed, Naroda Patiya incident and the Sadarpura case in Mehsana district.

In its Special Leave Petition (SLP) moved under Article 136, the NHRC's prayer is to set aside the impugned judgment of the trial court of Vadodara in the Best Bakery case and "issue directions for further investigations of the case by an independent agency and retrial of the case in a competent court located outside the State of Gujarat."

The SLP states that the NHRC was filing the petition after considering the report of its own 3-member team that was sent to Vadodara early this month to examine the case after the trial court had acquitted all 21 accused charged with urning to death 12 persons during the communal frenzy in the city on March 1 last year.

The NHRC has stated that it was "deeply concerned about the damage to the credibility of the criminal justice delivery system and negation of human rights of victims" by the impugned judgment which should be set aside to pave way for a fresh trial of the case.

The NHRC has, inter-alia, contended in the SLP that

-- The concept of fair trial is a constitutional 'imperative and is explicitly recognized as such in the specific provisions of the Constitution including Articles 14, 19, 21, 22 and 39A of the Constitution as well as the various provisions of the Code of Criminal Procedure 1973 (Cr.P.C).

-- The right to fair trial is also explicitly recognized as a human right in terms of Article 14 of the International Covenant on Civil and Political Rights (ICCPR) which has been ratified by India and which now forms part of the statutory legal regime explicitly recognized as such under Section 2(1)(d) of the Protection of Human Rights Act, 1993.

-- Violation of a right to fair trial is not only a violation of fundamental right under our Constitution but also violative of the internationally recognized human rights as spelt out in the ICCPR to which India is a party.

-- Whenever a criminal goes unpunished, it is the society at large which suffers because the victims become demoralized and criminals encouraged. It therefore, becomes duty of the Court to use all its powers to unearth the truth and render justice so that the crime is punished.

The SLP prays for the Supreme Court to lay down guidelines and directions for protection of victims and witnesses in the criminal trials "in the interest of justice" and "to enhance the efficacy of the criminal justice delivery system."

Since the Supreme Court frowns at advance publicity given to petitions before they come up for hearing, the NHRC has taken care to formulate the press release about the filing of the SLP on Thursday with the stand that it would like to state the position "in response to repeated requests from representatives of the print and electronic media regarding the action being taken by the Commission in the Best Bakery case.

Meanwhile, Congress President Sonia Gandhi has ordered an inquiry into a Media report alleging the role of one of its councillors in the Best Bakery murder case.

"If after investigation the charge is proved, we will definitely take action against him," Congress spokesman S Jaipal Reddy said at the daily Press briefing.

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