Bakery Case- NHRC Comes
To The Rescue
By Manoj Mitta
31 July, 2003
Sheikh and her mother Sehrunissa Sheikh
will get a second shot at justice.Making
what is arguably its most activist move ever, the National Human Rights
Commission has decided to file a special leave petition in the Supreme
Court asking for a re-trial of the Best Bakery case.
Led by its chairman
Justice A S Anand, the NHRC is learnt to have
taken this decision on the basis of the feedback from a team it sent
to Gujarat on July 8 to inspect the records of the case. Sources say
that the petition is ready and could be filed any day now-as early as
The NHRC's radical
decision follows a series of developments touched
off by Sehrunissa Sheikh's startling revelation to The Indian Express
on July 6 that, ''trembling with fear,'' she and her daughter lied in
It was this that
was key to the case falling apart on June 27-all 21
were acquitted in the massacre of 14 people at Best Bakery near
Vadodara during the post-Godhra riots.
approached the NHRC on July 11 and said that under
threat to her life and the life of the remaining members of her
family, she had resiled in the trial court from the statements she
made earlier to the police.
Sources said the
NHRC's petition makes three key points:
* That the circumstances
which led to the acquittals in the case
violate the victims' right to a fair trial. Both mother and daughter
alleged they were intimidated by local BJP MLA Madhu Shrivastav and
his Congress councillor cousin-a charge both have denied.
* That even when
so many witnesses retracted their statements in the
court, the trial judge, H U Mahida, remained an impassive spectator.
In fact, as The Indian Express reported on July 20, the 24-page
verdict makes no mention of the fear factor at all.
* All this puts
a serious question mark on the evidence recorded in
the fast-track trial court. And so a re-trial is the only way to
correct this miscarriage of justice.
A retrial is normally
ordered by the high court, the first court of
appeal, when an accused is found to have established that the trial
court denied him or her an opportunity to produce critical evidence.
Yet, the NHRC has
chosen to approach the Supreme Court directly and
the retrial is being sought in this case on behalf of the prosecution.
This despite the
fact that the prosecution itself-in this case the
Narendra Modi government-is yet to take a decision on whether it will
appeal against the acquittals.
In fact, if the
Supreme Court allows the NHRC's petition, it will
pre-empt the prosecution's option of appealing before the High Court.
If the Supreme Court entertains the petition, notices are likely to
go out not only to the Gujarat Government but also to the 21 who have
been acquitted in the case since they are the ones directly affected
by any decision.
Besides, the apex
court will be required to re-appreciate the
evidence on record, a task that is otherwise performed by the high
court as the first court of appeal to decide whether a retrial should
The Supreme Court
normally has lesser scope for interference as it
limits itself to questions of law instead of dealing also with
questions of fact. Legal experts expect the acquitted persons to
object to the NHRC's petition on the ground that it denies them their
due of two levels of appeal.
Since the NHRC is
approaching the Supreme Court directly, any
decision on it will be final and the accused will not have the option
of second appeal.