arvind lavakare on BEST BAKERY CASE

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http://www.rediff.com/news/2003/sep/09arvind.htm

Blindfolded in Best Bakery, September 09, 2003

The Hindu-hating media and the grandstanding National Human Rights Commission

have gone overboard on the Best Bakery verdict holding 21 Hindus as not guilty

of torching Muslims. The verdict and Zahira Sheikh's emergence on the front

page soon after have so inflamed the NHRC and an NGO that they have

belligerently gone to the Supreme Court. But they appear to have done so

wearing a big blindfold on certain facts staring in the face of the sane and

the sober.

The most glaring -- but cloaked -- fact concerns Zahira Sheikh whom the NHRC and

the NGO and the Hindu-hating media have been holding up as their totem. That

young woman first filed an FIR with the police against the 21 accused; then she

retracted that statement in court and, after the Vadodara special court's 'not

guilty' verdict, she went to town -- to Mumbai, proclaiming from the rooftop

that she had lied to the court. The last publicly confessed act of hers makes

her a criminal according to the statute book.

Section 191 of the Indian Penal Code, 1860, says 'Whoever, being legally bound

by an oath or by an express provision of law to state the truth or being bound

by law to make a declaration upon any subject, makes any statement which is

false, and which he either knows to or believes to be false or does not believe

to be true, is said to give false evidence.' Section 193 lays down that

punishment for the offence of giving 'false evidence' is imprisonment which may

extend to seven years and shall also be liable to fine.

The scope of the above provision in law was amplified in a Supreme Court

judgment 44 years ago. An excerpt of it said 'Whenever in a court of law a

person binds himself on oath to state the truth he is bound to state the truth

and he cannot be heard to say that he should not have gone into the witness box

or should not have made an affidavit and, therefore, the submission that any

false statement he had made after taking the oath is not covered by words of

section 191 is not supportable. Whenever a man makes a statement in court on

oath he is bound to state the truth and if he does not, he makes himself liable

under the provisions of section 193. A defendant or even a plaintiff is not

bound to go into the witness box but if either of them chooses to do so he

cannot, after he has taken the oath to make a truthful statement, state

anything which is false. Indeed the very sanctity of the oath requires that a

person put on earth must state the truth.' (Ranjit Singh versus State of Pepsu,

AIR 1959 SC 843.)

The media has hidden above legalities from the public and instead, along with

the NHRC as well as an NGO, played up Zahira Sheikh as an innocent Muslim eve

much harassed and hounded by the murderous Hindus of Gujarat.

Much has been made of Ms Sheikh's statement that she had received threats from a

BJP legislator and others not to tell the truth in court and that the atmosphere

in the Vadodara special court as well as in the whole of Gujarat was fiercely

hostile to the truth being revealed. The fact of the matter is that there is no

record of her having expressed these fears to the public prosecutor or the judge

concerned or to the media. Another fact of the matter is that Mumbai is just six

hours by train from Vadodara and, therefore, those who had allegedly threatened

her in Vadodara could have done so even in Mumbai where she became so

loquacious before cameras and correspondents.

Yet another fact of the matter is that none of the Hindu-hating media has cared

to delve into the allegation of Ms Sheikh's sister-in-law that Zahira received

a mini-fortune to do what she has so effectively done after the verdict was

delivered. The final fact of the matter is that apart from Ms Sheikh's mother,

none of the 35 or so 'hostile' witnesses in the Best Bakery case have joined

the 'crusade' of Zahira and the media and the NGO and the NHRC.

Another conspicuous facet of this bloody bakery business is that, sitting in

Delhi, Justice A S Anand, chairman of the NHRC, should have labeled the far

away Vadodara court's verdict of acquittal of all the 21 accused as

'miscarriage of justice' even before sending his team to Vadodara to examine

the judgment and related documents. As one who sat on the Bench for many years

before becoming the nation's Chief Justice, Justice Anand should have known

that an outburst against a judicial verdict is liable to the charge of contempt

of court.

As it transpired, Justice Anand's uncontrolled anger so clearly brings

administration of justice into disrepute that the Gujarat government quickly

appointed three public pleaders for the purpose of suing him for contempt of

court; these pleaders, in turn, filed an application before the Vadodara judge

asking him to move the state's high court to punish the contemner who, they

said, had insulted the honour and dignity of the judge, besides undermining the

entire judiciary. If that comes about, as it should, it will be judicial history

-- a former Chief Justice of the country being hauled in the very halls of

justice over which he was once reigned supreme.

But Justice Anand has nevertheless taken his anger right up to the Supreme Court

even before an appeal against the Vadodara verdict could be thought out by the

Gujarat government. His NHRC petitioned the apex court to order a re-trial of

the 21 'not guilty' Best Bakery accused. And the re-trial demanded is one that

should be out of Gujarat state!

This demand is another evidence of the NHRC's smouldering rage over the 'no

guilty' verdict. It is another evidence of the NHRC's blindfolded approach to

the issue. As pointed by M N Buch, Article 20(2) of the Constitution of India

prohibits trial for the same offence twice (Edit page article in The Indian

Express, Mumbai, August 13, 2003). That Article says 'No person shall be

prosecuted and punished for the same offence more than once.' As Constitutional

expert S M Bakshi, points out, this Article 20(2) is supplemented by section 26

of the General Clauses Act, 1897, and the provisions of the Code of Criminal

Procedure, 1976, where the second prosecution is excluded. (Page 45, The

Constitution of India, S M Bakshi, Fourth Edition, 2000, Universal Publishing

Co Pvt Ltd, New Delhi.)

Besides being Constitutionally barred, the NHRC's demand for a re-trial of the

Best Bakery case is a demand that is dangerous, nay disastrous, for the already

fragile justice deliver system of India.

Imagine the utter chaos and all-round judicial demoralization if this demand is

conceded. The precedent would herald an avalanche of similar demands throughout

the length and breadth of our vast country throughout the year. The

jurisdictional limitations of high courts set out in Article 225 of the Indian

Constitution will simply go into a toss. The harassment to the accused, to the

witnesses, to the judicial officers and to the lawyers concerned would be

unimaginable. So would the cost of travel, board and lodge of all concerned. It

would end up being a judicial joust.

A few days from now, the Supreme Court is expected to hear the NHRC's petition.

Meanwhile, it seems appropriate, in a morbid sort of way, that the latest cause

the NHRC has taken up with bulldog vigour is of those who manually handle night

soil.

Arvind Lavakare

Discover your Indian Roots at - http://www.esamskriti.com, 700 pictures, over

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Happiness are meant to be sharedBe Open Minded, pick up what yu like from the

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Stop cribbing, ACTION is what the Indian scriptures talk aboutTake the battle

into the enemy camp, SET THE AGENDA, be proactiveIn an argument, no emotions,

be detached, get yr facts right, then attack with the precision of a missile

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