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Supreme Court orders retrial in Best Bakery case
S.S. Negi
Legal Correspondent

New Delhi, April 12
In a landmark judgment, the Supreme Court today ordered re-investigation in the Best Bakery carnage during the Gujarat riots and re-trial of the case in Maharashtra to ensure fairness of justice. The apex court said the acquittal of all 21 accused by the trial judge as well as the Gujarat High Court was based on various infirmities.

Allowing the appeal of the Best Bakery case key witness Zahira Sheikh, nine of whose relatives were among the 14 people burnt alive in Vadodra’s Best Bakery run by her family, during post-Godhra riots, the apex court directed the Bombay High Court to designate a judge to conduct the trial afresh as soon as possible.

In a severe indictment of the state government for its failure to protect the lives and properties of the riot victims, a bench comprising Mr Justice Doraiswamy Raju and Mr Justice Arijit Pasayat ordered the Director-General of Police, Gujarat, to monitor the re-investigation, which should be taken up with urgency and utmost sincerity as the circumstances warranted.

The apex court also ordered the Gujarat Government to appoint a new public prosecutor by taking into account the suggestions of affected parties in this regard.

“Since we have directed retrial it would be desirable to the investigating agency or those supervising the probe, to act in terms of Section 173(8) of the Code of Criminal Procedure (Cr PC), as the circumstances seem to or may so warrant,” the apex court said. Section 173(8) gives power to the probe agency to take on record additional evidence, which were ignored by the prosecution.

It said that in the interest of justice, the fresh trial should be held on a day-to-day basis and be completed by the end of this year.

Indicting the Gujarat Government for its failure to protect the victims and provide justice to them, the court said “those who are responsible for protecting the life and properties and ensuring that investigation is fair and proper seem to have shown no real anaxiety. A large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation.”

“The modern day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice became flies in the hands of these wanton boys,” it observed.

The Court said “if the accused persons were not on bail at the time of the conclusion of the trial, they shall go back to the custody, if they were on bail that order shall continue unless modified by the court concerned.”

Legal expert-described the judgment as landmark and even unprecedented in a way because re-investigation and retrial had rarely been ordered by the apex court in the past after acquittal had been upheld by the High Court. The Gujarat High Court had upheld the acquittal of all 21 accused even though it had recorded in its judgment that the investigation by the state police was not honest.

The Supreme Court said since Sub-Section 8 of Section 173 of Cr PC permits fresh probe in the case by the probe agency even without court’s order, “it is open to the state police to conduct proper investigation, even afer the court has taken cognizance of any offence on the strength of police report.”

“The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and brining to book those who were responsible for the crime,” the bench said adding “the public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the court.”

“The role of the state government also leaves much to be desired. One gets a feeling that there was really no seriousness in the State’s approach in assailing the trial court judgment,” the anguished bench said.

Severely criticising the High Court for its failure to do justice in the case, Mr Justice Pasayat, writing the judgment for the bench said “there are several infirmities which are telltale even to the naked eye of an ordinary man.”

Though the High Court had come to a definite conclusion that the investigation carried out by the police was dishonest and faulty, it failed to order reinvestigation “which should have been per se sufficient justification to direct a retrial of the case,” the apex court said.

It also ordered expunging of certain observation of the High Court regarding the role of an NGO, which had taken up Zahira’s case.

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