Supreme Court stands its ground in declaring communal violence purportedly in the name of a particular religion to not only be criminal but also religiously reprehensible

Vaishnavi Nirmal  | Manikchand Pahade Law College, Aurangabad | 9th March 2020

Zahira Habibulla H Sheikh and Anr. Vs. State of Gujarat others Appeal (criminal) 446-449 of 2004

Fact of case:

The night of March 1, 2002 witnessed the unruly burning of Best Bakery at Vadodara, one of the many ghastly alleged retaliations to the Sabarmati Coach S-6 fire. Zahira, the main eye-witness of the gruesome incident, is the first appellant in this case which serves as the first grave condemnation of the possibly collapsing criminal justice system in India by one of its own at the apex court. In so doing, the two judge Bench of the Supreme Court, comprising of Doraiswamy Raju and Dr. Arijit Pasayat, JJ., raises important questions relating to the role of the court, the public prosecutor, investigating agencies, and the State in a criminal proceeding. State-sanctioned and sponsored criminal bouts of communal violence pose the unique problem of the State prosecuting the State, and in extension, every officer of the prosecuting State undertaking every effort to ensure the acquittal of accused officers of the State. This case is then is relevant to acknowledge a phenomenon pervaded by official bias, chart the gravity of its implications on criminal jurisprudence, and succinctly identify the normative role of various State instrumentalities to revamp the collapsing system of criminal justice in India.

This case has its matrix in an appeal filed by Zahira Habibullah hereinafter referred to as ‘Zahira and Another namely, Teesta Setelwad’ and another appeal filed by the State of Gujarat. In the appeals filed before this Court, the basic focus was on the absence of an atmosphere conducive to fair trial. Zahira who was projected as the star witness made a grievance that she was intimidated, threatened and coerced to depart from the truth and to make statement in Court which did not reflect the reality.

The trial Court on the basis of the statements made by the witnesses in Court directed acquittal of the accused persons. Before the Gujarat High Court an application under Section 391 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) highlighting the necessity for accepting additional evidence was filed. The foundation was the statement made by Zahira.

The High Court did not accept the prayer and that is why the appeals came to be filed in this Court.

Judgement:

The 2004 judgment is one that has uniquely spoken truth to (political) power in calling out the arbitrariness and impropriety in the application of judicial mind by the High Court of Gujarat, deliberate laxity in investigation and prosecution, and lack of political will by officers of the State who were complicit in, if not actively at the helm of planning and executing, the Best Bakery fire.

In locating religious fanaticism as outside the purview of religion, the Supreme Court stands its ground in declaring communal violence purportedly in the name of a particular religion to not only be criminal but also religiously reprehensible.

By judgment dated 12th April, 2004, the following directions were given:

• Keeping in view the peculiar circumstances of the case, and the ample evidence on record, glaringly demonstrating subversion of justice delivery system no congeal and conducive atmosphere still prevailing, we direct that the re-trial shall be done by a Court under the jurisdiction of Bombay High Court. The Chief Justice of the said High Court is requested to fix up a Court of Competent jurisdiction.
• Since we have directed re-trial it would be desirable to the investigating agency or those supervising the investigation, to act in terms of Section 173(8) of the Code, as the circumstances seem to or may so warrant. The Director General of Police, Gujarat is directed to monitor re-investigation, if any, to be taken up with the urgency and utmost sincerity, as the circumstances warrant.

Sub-section (8) of Section 173 of the Code permits further investigation, and even de hors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted.”