Hashimpura Unpunished, the Trend Continues Teesta Setalvad Published in Rashtriya Sahara Urdu, May 2015

Hashimpura Unpunished, the Trend Continues

Once the judgement acquitting all accused in a charge sheet where evidence was deliberately not knitted together well was out, we saw a plethora of media coverage. Unfortunately much of this focused media attention was missing while the trial was on. If the camera had turned its spotlight on the travesty of justice maybe, just maybe corrections could have been made. There is a Section in the Criminal Procedure Code, Section 311, that puts responsibility on the Judge hearing a case to push the boundaries of the prosecution, if he or she finds that the prosecution has not done justice to investigation.

On April 12, 2004 a historic order of the Supreme Court of India, Zahira Habibulla Shaikh & Citizens for Justice and Peace versus State of Gujarat, for the first time in Indian jurisprudence recognized the role of the Court, the Prosecution and the need for a Witness Protection programme. It is a pity that the principles laid down through this judgement and so clearly articulated by the apex court are not being followed countrywide by the lower courts.

“The principle laid down in the Best Bakery case judgement - ordering retrial and reinvestigation in the cases in which all the accused had already been acquitted - would guide future cases wherever injustice was done. The apex court performed its raj dharma in protecting victims and witnesses in the worst-ever case against humanity.”-- VN Khare, Chief Justice of India, in an interview to The Times of India the day after he retired (May 2004).

It is worth as citizens and activists recalling the principles laid down. The Judges held in this judgement that “ No Due Process of Law, Cardinal Principle of Governance Followed-       ‘If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. 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 Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. ….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’s judgment.”

Further in Paragraph 44 the Judgement reads : “ The power of the Court under Section 165 of the Evidence Act is in a way complementary to is power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court... However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - `essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.

 (End of Para 49. 8): “Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the original court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better".

Finally the historic conclusion in Para 54: “Though justice is depicted to be blind-folded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages faith inbuilt in judicial system ultimately destroying the very justice delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.

Para 55: “The Courts at the expense of repetition we may state, exist for doing justice to persons who are affected. The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself. “

While as activists and citizens we must protest bad investigation and deliberately weak charge sheets as filed in the Hashmipura case, we must know that the law provides for even our Courts to intervene and push the boundaries of the Investigation. In the interests of public justice. The unfortunate trend is for the Courts to deliver verdicts placing the entire blame on a deliberately compromised investigation. And compromised it is. But should we then not legitimately expect our Judiciary to step in, lower Court upwards?

That is the question that begs an answer.

Ends