The "Best Bakery" Case: Zahira Habibulla H. Sheikh and Another Vs State of Gujarat and Others

a.waughray@mmu.ac.
uk
The “Best Bakery” Case: Zahira Habibulla H. Sheikh and Another Vs State of
Gujarat and Others.1
A. Introduction
On 6 June 20052 the Supreme Court of India extended until 30 Sept 2005 the term of
the Bombay Special Court conducting the retrial in the case of Zahira Habibulla H.
Sheikh and Another v State of Gujarat and Others, known as the “Best Bakery Case”.
The judge conducting the retrial, Special Judge A. M. Thipsay, had sought a further
extension to the trial following the expiry on 31 May 2005 of the original five-month
extension granted by the Supreme Court on 31 December 2004.3
The case was transferred to the Bombay High Court for retrial on the order of the
Supreme Court, pursuant to its judgment of 12 April 2004.4 It is one of over two
thousand and thirty cases5 in which charges were originally brought in various
criminal courts in the State of Gujarat as a result of the communal violence that
erupted in the State in 2002.
This note is confined to consideration of the original trial court judgment of 27 June
2003, the Gujarat High Court judgment of 26 December 2003, the Supreme Court
judgment of 12 April 2004 and the interventions of the National Human Rights
Commission.
B. The Substance of the Case
The case arises out of the communal violence that occurred in the State of Gujarat in
2002 in the wake of a fire in Coach No. S-6 of the Sabarmati Express train on 27
February 2002 near Godhra railway station when fifty-six Hindus, mostly women and
1
Zahira Habibulla H. Sheikh and Another v State of Gujarat and Others, 2004 SOL Case No. 295
2
Zahira Habibulla H. Sheikh and Another v State of Gujarat and Others, AR 446/2004, 6 June 2005
3
Ibid., AR 446-449/ 2004, 21 February 2005
4
Supra, n.1
5
See National Human Rights Commission, Delhi, India, Annual Report 2002-3, Para. 3.18; see also
National Human Rights Commission, New Delhi, India, Case Number 1150/6/2001-2, Proceedings
dated 16 June 2002
Annapurna Waughray Page 1 of 27

Manchester Metropolitan University June 2005
a.waughray@mmu.ac.uk
children, were burnt alive and more than forty injured. 6 During the ensuing violence
between one and two thousand people, mostly Muslims, were killed 7 and thousands of
homes and businesses were destroyed. Over one hundred thousand people were
internally displaced into relief camps.8 According to both India’s National Human
Rights Commission and independent human rights organisations, Muslim girls and
women were particular targets of attack through acts of rape and other humiliating
crimes of violence.9
The circumstances of the case are not in dispute; per the Supreme Court, “it is
nobody’s stand that the [Best Bakery] incident did not take place.” 10 During the night
of 1-2 March 2002 the Muslim-owned “Best Bakery” business in Hanuman Tekri,
Vadodora, Gujarat, was besieged, attacked and set on fire by a large crowd. The
attack was stated to be in revenge for the deaths of the Sabarmati Express train
victims.11 Fourteen people trapped by the mob in the Best Bakery building (eleven
Muslims and three Hindu bakery workers) were burnt or beaten to death and six
injured.12 Zahira H. Sheikh, daughter of the bakery owner and aged eighteen years at
the time, was the main eye-witness to the attack in which neighbours and members of
her family, including women and four children under the age of five years, were
killed.
Between 27 March 2002 and 21 April 2002, following police investigation, twenty-
one individuals were arrested. Charges were filed against them on 24 June 2002. The
6
See National Human Rights Commission Vs State of Gujarat and Others, Special Leave Petition
(Crl.), 2003. The cause of the train fire remains disputed. In 2002 the Government of Gujarat
appointed the Nanavati-Shah Commission to inquire into the riots. In September 2004 the Minister of
Railways in the new Congress-led government established the Banerjee Committee, under retired
Supreme Court Justice U.C. Banerjee, to inquire into the train fire. The Committee’s preliminary report
of January 2005 concluded that the fire was probably “accidental.” The Committee was initially due to
complete its investigations and submit its final report by September 2005. On 24 September 2005 the
Committee was asked to submit all relevant documents and records to the Nanavati-Shah Commission
which is due to take the matter up for hearing commencing 14 October 2005.
7
Government of India official figures put the number of deaths at over 900; see House of Commons
Hansard Written Answers, 10 June 2002 (Pt 25), Column 814W. Unofficial estimates put the number
of deaths at over 2000; see Amnesty International, “Justice, the victim – Gujarat state fails to protect
women from violence”, Summary Report; AI Index: ASA 20/002/2005
8
House of Commons Hansard Written Answers, 10 June 2002 (Pt 25), Column 814W
9
See National Human Rights Commission, New Delhi, India, Case Number 1150/6/2001-2,
Proceedings dated 31 May 2002, Paras. 10, 20 and 32; see also Amnesty International, “Justice, the
victim – Gujarat state fails to protect women from violence”, Summary Report; AI Index: ASA
20/002/2005
10
Supra n.1, Para. 72
11
Ibid., Para. 4
12
Ibid.

accused denied all charges.13 The trial took place in June 2003 in the Vadadora
Sessions Court in Fast Track Court No.1. By judgment of 27 June 2003 all the
accused were acquitted by the trial court.14
At the trial thirty-six of the seventy-three prosecution witnesses, including the injured
witnesses and the eye-witnesses, retracted their statements. Three eye-witnesses
denied that they had ever made statements to the police. The key prosecution witness,
Zahira H. Sheikh, denied the contents of her statement made to the police on 2 March
2003 but admitted that the signature below the statement was hers. Shortly after the
verdict, on 7 July 2003, Zahira H. Sheikh gave a statement to the press to the effect
that she had been threatened and coerced into resiling her statement against the
accused at trial, and indicating her intention to petition for a re-trial outside Gujarat.15
In July 2003 the National Human Rights Commission petitioned the Supreme Court to
set aside the judgement of the trial court and to direct re-investigation and retrial of
the case outside the State of Gujarat on the grounds that the victims had not been able
to depose freely and that therefore the trial was unfair. A similar Special Leave
Petition was filed in August 2003 jointly by Zahira H. Sheikh and Citizens for Justice
and Peace, a human rights non-governmental organisation (NGO) involved in
reporting incidents, recording the testimonies of victims and witnesses and assisting
with recourse to the judicial process. In August 2003 the acquittals were appealed by
the State of Gujarat to the Gujarat High Court. 16 On 26 December 2003 the Gujarat
High Court dismissed the appeal and confirmed the acquittals. On 12 April 2004 the
Supreme Court of India ordered the transfer of the case to the Bombay High Court for
re-trial.
On 3 November 2004 Zahira H. Sheikh gave a further press conference claiming that
she had been threatened and coerced into cooperating with the retrial by Citizens for
13
State of Gujarat v Rajubhai Dhamirbhai Baria and others, Fast Track Court No.1, Vadadora of
Gujarat State in Sessions, Case No 248/2002 of the Additional Sessions Judge; Judgment of 27 June
2003, Para. 18
14
Ibid., Para. 69
15
See Press Statement released by Citizens for Justice and Peace, Mumbai, 7 July 2003
16
State of Gujarat v Rajubhai Dhamirbhai Baria and others, Crl Appeal No. 956/2003; Crl Misc.
Application No. 9677/2003; Crl Misc. Application No. 9825/2003;

Justice and Peace.17 Subsequently, in January 2005, an Inquiry was ordered by the
Registrar General of the Supreme Court to establish whether Zhaira H. Sheikh was in
any way threatened, pressurised, lured or induced to make or resile from any
particular statements and, if so, by whom. In August 2005 the Inquiry Committee
concluded that Zahira H. Sheikh had not been subject to threats, inducement or
coercion by Citizens for Justice and Peace but that it was highly probable that
financial inducements and possibly threats were responsible for her resiling from her
original statement in the trial court in Vadadora.18
At the time of writing the retrial in the Bombay High Court is ongoing.
B.
I. The Judgment of the Vadadora Court of Sessions19
At the trial in June 2003 the Vadadora Court of Sessions identified the following
issues to be decided (i) whether it was proved that on the night of 1-2 March 2002 an
armed mob gathered unlawfully in furtherance of common intention to cause damage
to the life and property of the Muslim community, burning the Best Bakery building
and committing murder and causing injury (ii) whether the charges against all or any
of the accused, of having taken part in the Best Bakery incident, were proved (iii)
what order should be made.20 Judgment was given on 27 June 2003.
As to (i) the court held that “[t]he motive of the mob was to cause damage to life and
property of persons of the Muslim community… as a reaction to the Godhra train
carnage”,21 further, that it was proved beyond doubt from the evidence that the mob
had resorted to destruction, loot and arson and that fourteen persons lost their lives in
the disputed incident.22 As to (ii) the court held that there was “not even an iota of
evidence produced on record of the case linking the accused persons or any of the
17
See “The Indian Express”, 6 December 2004: “Best Bakery Witness Faces Contempt Charges,
Investigation”; see also “Express India”, 8 November 2004: “Zaheera – Victim or Opportunist?”
18
Supreme Court of India, Inquiry Report in Criminal Appeal Nos 446-449/2004., Zahira Habbullah
Sheikh and Anr v State of Gujarat & Ors, 27 August 2005
19
Supra, n.13
20
Ibid., Para. 23
21
Ibid., Para. 25
22
Ibid., Para. 34

accused to the crime”,23 furthermore that “judicial scrutiny of the evidence” produced
in the case showed that “false evidence ha[d] been got up against falsely accused
persons.”24 As to (iii) the court ordered acquittal of the accused on the basis that the
case against them was not proved and further ordered cancellation of their surety and
their release from jail.25
At trial thirty-six of the seventy-three prosecution witnesses retracted their statements

to the police. The balance who did not were only formal witnesses such as doctors
who had treated injuries. In its judgment the Sessions Court stressed that it was not
within its purview to identify the true offender(s) if not the accused, but rather to
decide on the basis of the evidence whether the accused persons produced by the
police were the true offenders.26 The police were criticised for poor investigation of
riots generally and in this case, in the absence of the actual but unknown perpetrators,
for having accused innocent persons chosen from among the nearby population and
passersby to the incident.27 Furthermore, the Court held that there were reasons to
believe that the police had fabricated the evidence of the “star witness” Zahira
Sheikh.28 On these grounds the Court held that no importance could be given to her
statement. Moreover, she herself did not support her “alleged” statement and “none
of the witnesses supported the police statements in Court”. 29 It appears from the
judgment that the defection of such a large number of prosecution witnesses from
their earlier evidence was indicative in the Court’s view of the poor quality of the
police investigation and the inherent weaknesses of the prosecution case rather than of
any shortcomings in the conduct of the trial or in the management of the witnesses.
In conclusion the Court held the disputed incident to be “the reaction of (sic) Godhra
carnage”30 and went on to identify the causes of the communal riots as “(1) the
communal tense situation (2) failure in industrial policy (3) uneasiness due to
23
Ibid., Para. 34
24
Ibid., Para. 45. See also Para 52: “Not even the least acceptable evidence, which may associate the
accused persons produced in this case with the charge levelled against them is produced on the record
of this case.”
25
Ibid., Paras. 69-71
26
Ibid., Para. 48. The Court expressed the view that “[t]he Court of Justice in [a] real sense is not the
Court of Justice but the Court of Evidence.”
27
Ibid., Para. 49
28
Ibid., Para. 41
29
Ibid.
30
Ibid., Para. 57

reservations”.31 In its judgment it blamed the communal situation on the legacy of

English imperialism and called for greater patriotism and national loyalty among
India’s citizens as well as greater emphasis on agriculture in development
programmes and reconsideration of the reservations policy. 32 It also expressed an
expectation that incidents of communal violence such as the Best Bakery incident,
which it described as a “shameful thoughtless incident”, should be avoided in future.33
On 7 August 2003 the State of Gujarat filed (i) an appeal 34 against the judgment and
the acquittal order (ii) two Applications for permission to adduce additional evidence
in the form of witness affidavits and documentary evidence, and for an order for
retrial and quashing of the entire proceedings.35
II. The Judgement of the Gujarat High Court 36
The Appeal was heard in December 2003, Judgment was given on 26 December 2003
and Reasons on 12 January 2004. In dismissing the State’s applications for
permission to bring further evidence on record and for an order for retrial, the Gujarat
High Court presented the accused as victims of a tainted process. The Court was
critical of the investigating agency and the police, alleging that the defendants had
been falsely accused and false evidence concocted against them to detract from the
failure of the police to apprehend the true perpetrators, 37 while the public prosecutor
was criticised for the weakness of the prosecution case and the consequent suffering
of the accused.38
31
Ibid., Para. 54. The Constitution of India allows for affirmative action policies on behalf of
designated disadvantaged sectors of society by way of “reservation” of a percentage of public sector
jobs and higher education places for individuals who are members of such groups.
32
Ibid., Paras. 55-65
33
Ibid., Para. 67
34
Supra, n.16. There is a 90-day limitation period for filing an appeal in the State of Gujarat
35
State of Gujarat Vs Rajubhai Dhamirbhai Baria and others, Criminal Misc Application No. 9677/
2003; Criminal Misc Application No. 9825/2003. The application was so badly drafted that the State
of Gujarat was directed by the Supreme Court to amend the application.
36
State of Gujarat Vs Rajubhai Dhamirbhai Baria and Others, Criminal Appeal No. 956/2003 with Crl.
Misc. Application 7677/2003 and Crl. Misc. Application 9825/2003, Judgment of the Gujarat High
Court 26 December 2003/ 12 January 2004
37
Ibid., Para. 14: “We are at pains to note that in the instant case, right from the beginning, the
investigation carried out be the Police was absolutely dishonest and faulty. When the police did not
find the real culprits, then they have falsely involved the respondents in this case as accused, who were
none els but the neighbours of the victims.”; see also Paras. 18, 20
38
Ibid., Paras. 17, 19

The Court asserted its powers as an appellate court under the Criminal Procedure
Code to order retrial, provided there is a case for retrial,39 but declared itself:
“fully satisfied that this is not a case where retrial should be ordered.” 40
The Court specifically rejected the submissions of learned Advocate General Shri
Shalat, for the State of Gujarat, that retrial should be ordered on the grounds that the
original trial was not satisfactory, it was not a full and fair trial, and the witnesses had
not deposed fearlessly before the Court:41
“We are of the considered opinion that there is nothing on record to show that
[the witnesses] had not deposed fearlessly and that the trial was not fair.” 42
Referring to the retraction of their statements by a large number of the trial witnesses
and Zahira H. Sheikh’s post-trial allegations of coercion and intimidation, the Court
categorically dismissed suggestions that the trial witnesses including Zahira had been
threatened or intimidated,43 noting that “there may be more than one reasons (sic) for
the witnesses resiling from their so-called statements made before the police” 44 and
instead stated its “reasonable apprehension” that Zahira had been mis-used by “anti-
national and anti-social elements”45 intent on wrongly defaming the State of Gujarat
for unspecified ulterior motives.46
On the conduct of the investigation by the police the court held that:
39
Criminal Procedure Code 1973, Section 136(i)
40
Supra n. 34, Para 5
41
Ibid., Para. 4: “In support of his submission, learned Advocate General submitted that (i) one witness
after another resiled from their statements giving rise to a reasonable suspicion that they have been
coerced into doing so; (ii) the …Court and the Prosecutors have not put proper questions to the
witnesses who were declared hostile as to ascertain why they were resiling (iii) neither the court nor the
prosecutor had taken any care….to see that [Zahira] does not turn hostile.”
42
Ibid., Para. 26
43
Ibid., Para.7
44
Ibid., Para. 6
45
Ibid., Para.7
46
Ibid. “….. we have reasonable apprehension in our mind that there is a deep-rooted conspiracy of
mis-using this witness Zahira, victim of the unfortunate incident, by some people, with an ulterior
motive, and unfortunately poor people, like Zahira and others, have easily fallen in their pray (sic).”

“It is clear from the evidence that when the police was (sic) not able to reach
the real culprits they decided to involve the innocent neighbours…as accused
persons by preparing false documents and witness statements” 47
The Court repeated the trial court’s criticisms of the prosecution case and its findings
that the true perpetrators were not among the accused; yet despite the acknowledged
failings of the police, the Court dismissed as without basis arguments that the trial
should have been held in camera when one witness after another resiled from their
statements, alternatively that it should have been adjourned, or that hostile witnesses
should have been recalled and re-examined.48 Commenting that no-one, including the
state, should be allowed to take advantage of its own wrong,49 the Court held that
“Retrial cannot be ordered on the ground that the prosecution did not produce the
proper evidence and did not know how to prove their case” 50
In its view, the trial judge:
“rightly came to the conclusion that the prosecution has miserably failed to
prove its case against the accused and the police investigation….is absolutely
faulty” 51
Further:
“Any order of retrial would cause serious prejudice to the accused who have
suffered so far economically as well as mentally”52 and further “whose
personal liberty is at stake.” 53
On the Applications to submit further evidence, the Court accepted the argument of
Defence Counsel Mr. Sushil Kumar that the appeal stood to be decided on the basis of
47
Ibid., Para 20
48
Ibid., Paras. 7-10
49
Ibid., Para 36
50
Ibid., Para 33
51
Ibid., Para. 18
52
Ibid., Para. 19
53
Ibid., Para. 17

the evidence at trial and that it would be a misuse of the Court’s powers under the
1973 Criminal Procedure Code to take additional evidence into consideration in
deciding the Appeal.54
The Court declined to express an opinion on the locus standi of the National Human
Rights Commission55 to challenge the original trial judgment and acquittal order
before the Supreme Court by way of a Special Leave Petition, on the grounds that as
the matter was pending before the Supreme Court it would not be proper to do so.56
In relation to its own authority to hear the State Appeal, the Court dismissed
arguments that it was precluded from hearing the appeal simply because the case was
pending before the Supreme Court, holding that:
“merely because the case is pending before the Apex court, that fact itself should
not debar us from hearing and deciding the State Appeal” 57; further, that so to
argue [would be] “undermining the independence of this Court.” 58
The Court also dismissed arguments that the State of Gujarat had been pressurised to
file the appeal, that the Court was under undue pressure from the Supreme Court to
decide the appeal and that due to media pressure the Court was incapable of
“decid[ing] the appeal on merits and strictly in accordance with the law prevailing…
in the country.” 59
C. The Interventions of the National Human Rights Commission
The National Human Rights Commission (hereafter “the Commission”) is an

autonomous statutory body constituted under the Protection of Human Rights Act
199360 and operating in accordance with the Paris Principles on the status of national
54
Ibid., Paras. 36-38
55
Ibid., Para. 1: The judgment records that the locus standi of the National Human Rights Commission
was challenged by Mr Sushil Kumar, Senior Defence Counsel.
56
Ibid.
57
Ibid.
58
Ibid.
59
Ibid., Paras 2, 3.
60
PHRA 1993 Section 3; The Act was deemed to have come into force on 28 September 1993: PHRA
Section 1(3).

institutions.61 It has been entrusted with powers62 to inquire suo moto or on a petition
presented to it by a victim or any person on his (sic) behalf, into complaints of (i)
violation of human rights63 or abetment thereof (ii) negligence in the prevention of
such violation, by a public servant;64 to intervene in any proceeding involving any
allegation of violation of human rights pending before a Court with the approval of
such Court;65 to review the Constitutional and legislative safeguards for the protection
of human rights and recommend measures for their effective implementation; 66 to
make recommendations for the effective implementation of international treaties and
instruments on human rights;67 and to perform such other functions as it may consider
necessary for the promotion of human rights. The Commission has its own
investigations team and similar powers to a civil court including summoning and
enforcing the attendance of witnesses and examining them on oath; discovery and
production of documents; receiving evidence on affidavits; requisitioning any public
record or copy thereof from any court or office; issuing commissions for the
examination of witnesses or documents.68
On 1 March 2002 in response to media reports and an email request, the Commission
took suo moto action on the human rights situation in Gujarat by requesting the Chief
Secretary and the Director General of Police of the State of Gujarat to provide, within
three days, information on the measures being taken and in contemplation to prevent
further escalation of the situation which was resulting in continued violations of
human rights.69 A further Notice on 6 March 2002 recorded the Commission’s
disappointment at the failure of the Gujarat State authorities to provide, in a matter of
such urgency and significance, even a preliminary report indicating the action taken
so far, on the grounds that “as most of the State machinery [was] busy with the law
61
UN General Assembly Resolution of 20 December 1993, “National institutions for the promotion
and protection of human rights”; A/ RES/ 48/134
62
PHRA 1993 Section 12
63
Human rights are defined in Section 2(d) of the Act as “the rights relating to life, liberty, equality and
dignity of the individual guaranteed by the Constitution or embodied in International Covenants and
enforceable by Courts in India”.
64
PHRA 1993 Section 12(a)
65
Ibid, Section 12 (b)
66
Ibid, Section 12 (d)
67
Ibid, Section 12 (f)
68
NHRC http://nhrc.nic.in, retrieved 1 July 2005
69
National Human Rights Commission, Case Number 1150/6/2001-2, Proceedings dated 1 March
2002. The Commission referred to news items reporting on the “communal flare-up in the State of
Gujarat” which suggested “inaction by the police force and the highest functionaries in the State to deal
with the situation.”

and order situation it would take some time to collect the information and compile the
report.” The Commission expressed its expectation of a “comprehensive response at
the earliest.”70
(i) The Preliminary Comments and Recommendations of the Commission
On 1 April 2002, following the visit to Gujarat between 19-22 March 2002 of a
Commission fact-finding team which included the Commission Chairperson, Justice
J.S. Verma, and receipt of the State of Gujarat’s Report of 28 March 2002, 71 the
Commission issued Preliminary Comments and Substantive Recommendations 72 to
the Central and State Governments in relation to law and order, relief camps and
rehabilitation. The Commission noted the serious implications of the Gujarat violence
for the country as a whole, and the “grave questions of fidelity to the Constitution and
to treaty obligations” which arose.73 In its Preliminary Comments it reiterated the
primary responsibility of the State for the protection of human rights and the clear
principle of human rights jurisprudence that the State is responsible not only for the
acts of its own agents but also for the acts of non-State actors within its jurisdiction. 74
On the question of whether the State of Gujarat had discharged its responsibilities
appropriately, the Commission, referring to the history of communal violence in
Gujarat and the principle of res ipsa loquitur, placed the burden on the State
Government to rebut the presumption of State responsibility for the failure to protect
the life, liberty, equality and dignity of the people of Gujarat. 75 It further observed
that there was a “widespread lack of faith in the integrity of the investigating process
and the ability of those conducting the investigations.”76
70
National Human Rights Commission, Case Number 1150/6/2001-2, Proceedings dated 6 March 2002
71
A Preliminary Report from the Government of Gujarat dated 8 March 2002 was described by the
Commission as “perfunctory in character”; see National Human Rights Commission, Case Number
1150/6/2001-2, Order and Proceedings dated 1 April 2002, Para. 18
72
See National Human Rights Commission, Case Number 1150/6/2001-2, Order and Proceedings dated
1 April 2002, Paras. 20 and 21
73
Ibid., Para. 9
74
Ibid., Para 20 (iii): “[I]t is the primary responsibility of the State to protect the right to life, liberty,
equality and dignity of all those who constitute it. It is also the responsibility of the State to ensure that
such rights are not violated either through overt acts or through abetment or negligence.”
75
Ibid., Para 20 (iv) and (vi)
76
Ibid., Para. 20 (viii)

Recommendations were made on law and order including (i) entrusting five critical
cases, including the Best Bakery Case, to the Central Bureau of Investigation; 77 this
was in response to allegations of poor or wrongful recording of First Information
Reports78 (hereafter “FIRs”) and influencing of investigations by extraneous
considerations or players, leading the Commission to the view that the integrity of the
process had to be restored79 (ii) the creation of Special Courts to try these cases on a
day-to-day basis80 (iii) the appointment of Special Prosecutors as needed and the
adoption of procedures to protect the victims and witnesses, especially women and
children, in the handling of such cases81 (iv) the creation of Special Cells to track the
progress of those cases not entrusted to the CBI 82 (v)the setting up of police desks in
relief camps to receive, record and action FIRs83 (vi) action to identify and proceed
against those public servants who failed to act appropriately to control the violence or
to prevent its escalation.84 The Commission also drew attention to “the deeper
question of police reform” and the need “to preserve the integrity of the investigating
process and to insulate it from extraneous influences.”85
In its proceedings of 31 May 2002 the Commission made a further set of

Recommendations.86 It noted the difficulties experienced by many victims in having
their complaints recorded by the police87 and the observations of its Special
Representative concerning the high proportion of arrestees who had secured bail, even
for serious offences.88 It reiterated its call for the appointment of special courts and
special prosecutors and for the transfer of certain critical cases to the CBI.89
(ii) The Special Leave Petition and the Transfer Petitions90

77
The cases relating to the Godhra incident, the Chamanpura (Gulberg Society) and Naroda Patiya
incidents, the Best Bakery case and the Sadarpura case; see supra n. 52, Para. 21(i)
78
The registering of a First Information Report (FIR) is the first stage in criminal proceedings in India
79
Supra n. 70, Para. 21 (I) (i)
80
Ibid., Para. 21 (I) (ii)
81
Ibid.,
82
Ibid., Para 21 (I) (iii)
83
Ibid., Para 21 (I) (v)
84
Ibid., Para. 21 (I) (viii)
85
Ibid., Para. 21 (IV) (i)
86
National Human Rights Commission, Case Number 1150/6/2001-2, Order and Proceedings dated 31
May 2002, Para. 26
87
Ibid., Para. 20
88
Ibid., Para. 17
89
90
National Human Rights Commission v State of Gujarat and Others, Special Leave Petition (Crl.) /
2003; National Human Rights Commission Vs State of Gujarat and Others, Transfer Petition (Crl.) No.

On 11 July 2003 Zahira H. Sheikh approached the Commission and made a statement
to the effect that she had resiled at trial from her earlier testimony under threat to her
life and the life of the remaining members of her family. She requested the help of the
Commission in re-opening the Best Bakery case.91 On 31 July 2003, following the
report of a Commission fact-finding team to Vadadora, Gujarat, the Commission filed
a Special Leave Petition” in the Supreme Court 92 against the Best Bakery trial
judgment of 27 June 2002, seeking the setting aside of the judgment and retrial of the
case in a competent court outside the State of Gujarat. The Commission also filed
Supreme Court applications for transfer of four other cases pending in different
Gujarat courts, to corresponding courts in any other state.
In the Special Leave Petition the Commission contended that the judgment of the trial
court in the Best Bakery case was “testimony to the failure of the criminal justice
system in the State [of Gujarat] and the failure to ensure a fair trial” 93 as enshrined in
Article 21 of the Constitution of India and in Article 14 of the International Covenant
on Civil and Political Rights 1966 to which India is a party. According to the
Commission it was apparent from the collapse of the prosecution case that “the
atmosphere in which the trial was conducted was not conducive to the prosecution
witnesses deposing in a fair and fearless manner” and that the trial was lost “due to
the failure of the State to protect the victims and key prosecution witnesses.”94
In the Transfer Petitions the Commission reiterated the point that the record of the
Best Bakery Case was “testimony to the complete breakdown of the criminal justice
system resulting in a gross miscarriage of justice,” 95 arguing that “it would be a
travesty of justice if [the other] cases also go the Best Bakery way for that would
seriously impair the credibility of the justice delivery system and the rule of law.” 96
It contended that given the result of the Best Bakery trial it was unlikely that the
109/ 2003
91
National Human Rights Commission, Interim Directions on Gujarat
http://nhrc.nic.in/disparchive.asp?fno=59, retrieved 1 July 2005
92
Pursuant to Article 136 of the Constitution of India; permission to file the Special Leave Petition was
granted by Order of the Supreme Court on 8 August 2003.
93
Supra n. 90, Synopsis
94
Ibid.
95
National Human Rights Commission Vs State of Gujarat and Others, Transfer Petition (Crl.) No.
109/ 2003, Facts, Para. 2.8
96
Ibid., Facts, Para 2.13

pending trials “would take place in a free and fair atmosphere and justice done to the
victims, and that in the circumstances it was imperative for the trials to be conducted
outside the State of Gujarat.”97 As in the Special Leave Petition, the Commission
was critical of the failure of the trial court, faced with the retraction of their
testimonies by a large number of witnesses and having openly acknowledged the
deficiencies in the police investigation, to order further investigations before
concluding the trial, noting that “ a criminal trial is not a mere formality” and that
when an offence is committed it “becomes the duty of the court to ascertain the truth
and render justice. Failure to do so results in miscarriage of justice.” 98 The
Commission also criticised the Government of Gujarat for failing to heed its
recommendations of 1 April 2002, and for the closure of nearly half the cases
originally registered.
D. The Best Bakery Case: The Judgment of the Supreme Court
In its judgment of 12 April 2004 ordering the reinvestigation, retrial and transfer of
the Best Bakery case to Bombay High Court the Supreme Court described the case as
“without parallel and comparison” and that on the facts of the case a direction for
retrial was “inevitable”.99
Allowing the National Human Rights Commission’s appeals, the Supreme Court
directed:
(i) Re-trial by a court of competent jurisdiction under the jurisdiction of
Bombay High Court, nominated by the Chief Justice of the Bombay High
Court
(ii) The appointment of another public prosecutor by the State of Gujarat, the
victims and witnesses to have a say in the appointment in view of the
unusual factors in the case
(iii) The fees and all other expenses of the public prosecutor and an assistant
lawyer of his (sic) choice to be paid initially by the State of Maharashtra
and thereafter reimbursed by the State of Gujarat
97
Ibid., Grounds, Para. III
98
Ibid., Grounds, Para. VII (i) & (ii)
99
Supra n.1, Para 73

(iv) The State of Gujarat to ensure the transfer of all documents and records to
the court nominated by the Chief Justice of the Bombay High Court
(v) The State of Gujarat to ensure the production of the witnesses before the
said court whenever required, and to provide necessary protection so that
they can depose freely without any apprehension of threat or coercion
(vi) The State of Maharashtra to provide additional protection at the request of
any witness
(vii) All trial expenses to be borne initially by the State of Maharashtra, to be
reimbursed by the State of Gujarat
(viii) The Director General of Police, Gujarat to monitor the reinvestigation, if
any, to be taken up with urgency and utmost sincerity.
(ix) The expunging of paragraph 3 of the judgment of the Gujarat High Court
except the last limb of the sub paragraph therein.100
(x) The return to custody of those accused who were not on bail at the
conclusion of the trial, existing bail orders to continue.101
In its judgment the Supreme Court identified significant flaws in the conduct and
management of both the trial and the appeal hearing, and made a number of important
general comments on the functions of the criminal justice system, the duties of courts,
the right to fair trial and the treatment of witnesses.
Commenting on the justice system and the right to fair trial, the Supreme Court
observed that the main purpose of the judicial system is the “discovery, vindication
and establishment of truth”.102 Since the object of a criminal trial is to “mete out
justice, convict the guilty and protect the innocent”, the trial should be a “search for
truth and not a bout over technicalities.” 103 Furthermore, a trial which is primarily
aimed at ascertaining truth has to be fair to all concerned. This
“involves a delicate judicial balancing of competing interests……the

interests of the accused and the public and to a great extent that of the victim
100
Ibid., Paras. 75-78
101
Ibid., Para. 85
102
Ibid., Para. 30
103
Ibid., Para. 38

have to weighed not losing sight of the public interest involved in the
prosecution of persons who commit offences.”104
Thus, the Court held, it is not only the accused who must be fairly dealt with; victims,
their family members and relatives all have an “inbuilt right” to be dealt with fairly in
a criminal trial, and denial of a fair trial is as much injustice to the accused as is to the
victim. Threatening witnesses, forcing them to give false evidence and failure to hear
material witnesses will all result in an unfair trial.105
The Court was highly critical of the original police investigation into the Best Bakery
incident, describing it as:
“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.”106
The public prosecutor appeared to the Court to “…have acted more as a

defence counsel than one whose duty was to present the truth before the
Court” and the Trial 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 Court observed that although the acquittals had been upheld by the High Court,
“if the acquittal is unmerited and based on tainted evidence, tailored

investigation….perfunctory trial and evidence of threatened / terrorised
witnesses, it is no acquittal in the eyes of the law and no…..credibility can be
attached [to it].”107
104
Ibid., Para. 30
105
Ibid., Para. 36
106
Ibid., Para. 68
107
Ibid., Para. 64

Overturning the findings of the High Court, the Supreme Court held that a faulty
investigation is not the fault of the victims or witnesses; 108 where the investigation is
defective “the court would not be right in acquitting an accused person solely on
account of the defect; to do so would be tantamount to playing into the hands of the
investigating officer if the investigation is designedly defective” (italics added).109 The
innocence or guilt of the accused persons in the Best Bakery case could have been
established, the Court said, by a fair and impartial trial.110
The Court was particularly critical of the High Court’s refusal, having clearly
concluded that the initial investigation was faulty, to admit the application for
additional evidence and to order a retrial. On this point the Supreme Court took a
diametrically opposite position to that taken by the trial court and the High Court:
“The High Court [came] to a definite conclusion that the investigation

carried out by the police was dishonest and faulty. That was and should have
been per se sufficient justification to direct a re-trial of the case.”111
The Court also held that the High Court had erred in concluding that the appeal could
only be decided on the basis of the evidence previously before it. It had then
compounded the error by recording that the affidavits adduced as to the need for
permitting the additional evidence were not truthful. The Supreme Court held that
this was a matter for assessment of evidence when admitted. 112 Under the 1973
Criminal Procedure Code and the 1872 Indian Evidence Act the courts have wide
discretionary powers to “take necessary steps if …fresh evidence is essential to the
just decision of the case.”113 These powers should be exercised with caution; the
Supreme Court stressed that “there cannot be straight-jacket formula or rule of
universal application,”114 and as the provisions under the Code are by way of an
exception the Court has to carefully consider the need for and desirability to accept
108
Ibid., Para. 60
109
Ibid., Para. 61
110
Ibid., Para. 69
111
Ibid., Para. 70
112
Ibid., Para. 71
113
Ibid., Para. 44. See also Paras. 46-49; sections 311 and 391 of the Criminal Procedure Code 1973
together give the courts power to seek and to take into account such evidence, including additional
evidence, as is necessary to enable them to arrive at a just decision.
114
Ibid., Para. 73

additional evidence. However, given that the “function of the original court is
administration of criminal justice and not to count errors committed by the parties or
to find out…who among the parties performed better,” if “proper evidence was not
brought on record due to any inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified.” 115 Appellate courts also have power to
accept additional evidence if the court thinks it necessary in the interests of justice to
do so, and furthermore this power is not limited to cases where there has been “merely
a formal defect.”116 Nonetheless, the adducing of additional evidence will not
necessarily lead to the conclusion that the judgment of the trial court was wrong. That
decision is arrived at after assessing the original evidence before the trial court and the
additional evidence.117 Neither is it the case the case that whenever additional
evidence is accepted, retrial is a corollary.118 But in the instant case, in view of the
nature of the additional evidence sought to be adduced and the perfunctory manner of
the trial, the Court held that:
“a retrial is a must and essentially called for in order to save and preserve the
justice delivery system unsullied and unscathed by vested interests.”119
As to the location of trial, the Court reaffirmed the principle that justice should be
done but should also be seen to be done. Thus where the Court is fully satisfied that a
fair and impartial trial is impossible in a given case and there is a reasonable
apprehension that justice will not be done, an out-of state trial may be directed.120
On the question of witnesses, the Court dealt at length in its judgment with the
importance of witnesses. Quoting Bentham, the Court stated that witnesses are the
“eyes and ears of justice.” Where witnesses are incapacitated from acting in this way,
for whatever reason, a fair trial is no longer possible. The State is under a duty to
protect witnesses in the broader interests of society, especially in sensitive cases; as a
protector of its citizens it must ensure that witnesses can depose safely during trials
115
Ibid., Para. 51
116
Ibid., Para. 49
117
Ibid., Para. 59
118
Ibid., Para. 73
119
Ibid.
120
Ibid.,Para. 74

121
without fear of repercussions. The Court made reference to the numerous
experiences of courts faced with witnesses turning hostile due to threats, coercion, or
for financial or political gain, the cumulative effect of which is to undermine and
destroy public confidence in the administration of justice leading to anarchy,
oppression and injustice and the breakdown of the rule of law. 122 The Court
specifically called for the introduction of legislative measures prohibiting tampering
with witnesses123 and for the constitution of an impartial agency “comprising persons
of unimpeachable integrity to perform functions akin to those of the Director of
Public Prosecutions in the UK,” including the administration of Witness Protection
Programmes.124
In the instant case the Court rejected as untenable the reasons given by the High Court
for the non-examination of eye-witnesses and injured relatives at trial, and was also
critical of the examination of one witness by the trial prosecutor earlier than the date
fixed.125 The trial court should have recalled and re-examined the hostile witnesses
pursuant to its powers under the 1973 Criminal Procedure Code and the 1872 Indian
Evidence Act. The Supreme Court also found the High Court’s conclusion that
Zahira Sheikh had been used by persons with “oblique motives”, and that witnesses
who filed affidavits were of unsound mind, untruthful and capable of being
manipulated, was unsupported by any material or reasonable and concrete basis.126
The Supreme Court took the opportunity in its judgment to articulate its views on the
role of the Courts. The Courts, it said, have “an overriding duty to maintain public
confidence in the administration of justice.”127 This duty requires courts to participate
actively in trials rather than being merely “tape recorder[s] recording evidence.” 128
Presiding officers should play an active role in the evidence collecting process and
should monitor and control the proceedings so that truth, the ultimate objective, is
arrived at and miscarriages of justice prevented.129 In cases where the role of the
121
Ibid., Para. 41
122
Ibid.
123
Ibid.
124
Ibid., Para. 57
125
Ibid., Para. 71
126
Ibid., Para. 20
127
Ibid. Para. 35
128
Ibid. Paras. 43, 55
129
Ibid., Para. 43

prosecuting agency itself is put at issue the Court has an even greater duty and
responsibility to render justice. 130 Courts also have a duty to maintain judicial
discipline. Ordering the expunging of Paragraph 3 of the Appeal judgment which
made reference to grievances purportedly expressed at the appeal hearing about the
role of the National Human Rights Commission,131 the Supreme Court was critical of
the failure of the High Court in this case to maintain decency, decorum and judicial
discipline by recording unwarranted references to persons and constitutional bodies
such as the NHRC who were not before it. 132 Finally and in passing the Supreme
Court noted with displeasure the practice increasingly adopted by the High Courts of
pronouncing final orders without a reasoned judgment (as in the instant case), often
resulting in the implementation of the order having to be stayed by the Supreme Court
pending delivery of the reasoned judgment.133
E. Comment/ Remarks
The roles played by the National Human Rights Commission, non-governmental

organisations, the media and the Supreme Court in the progress of the instant case all
deserve brief comment. The Indian and international media were instrumental in
bringing the immediate post-Godhra communal violence to national and international
attention. In its Proceedings of 1 March 2002 the Commission stated that it was
taking action “on the basis of media reports, both print and electronic” and an email
request for Commission intervention. The Proceedings specifically identified news
reports as the source of information about inaction on the part of the state
authorities.134 Its Proceedings of 6 March 2002 made specific reference to media
reports as a source of information about the situation in Gujarat. 135 In its Proceedings
of 1 April 2002 the Commission emphasised the need to uphold the right to freedom
130
Ibid.
131
Ibid., Para 83; Mr Sushil Kumar, Defence Advocate, denied that he had made any such submissions
concerning the role of the NHRC before the High Court during the course of the appeal hearing as
reflected in the judgment.
132
Ibid., Para 83. The Supreme Court ordered the expunging of Para 3 of the High Court appeal
judgment.
133
Ibid., Para. 81
134
Supra, n. 68: “News items report a communal flare-up in the State of Gujarat and what is more
disturbing, they suggest inaction by the police force and the highest functionaries in the state to deal
with this situation.”
135
Supra, n. 69

of speech and expression as articulated in Article 19(1)a of the Constitution of India

as well as in Article 19 of the ICCPR, and it declared itself “clearly in favour of a
courageous and investigative role for the media.” 136 It also recommended that the
media, especially radio, should be requested to cooperate in efforts to identify and
assist destitute women and orphans and those subjected to the trauma of rape. 137 At
the same time, having noted the views of the Government of Gujarat in respect of the
media138 and the fact that the constitutional right to freedom of speech is subject to
reasonable restrictions under Article 19(2) of the Constitution, 139 the Commission
suggested “self-policing” guidelines should be considered to govern the conduct of
the media in volatile situations including those of inter-communal violence in order to
avoid further inflaming the situation.
In its Proceedings of 1 April 2004 the Commission emphasised the nature of its
intervention as a continuing process to examine, monitor and address the human
rights situation in Gujarat, similar to its intervention following the cyclone in Orissa
in 1991 and the earthquake in Gujarat in 2001.140 However there were, it said,
fundamental differences between the Gujarat situation and these earlier instances.
The latter arose from catastrophic natural disasters which required the Commission to
monitor the State’s performance to ensure that the human rights of the most
vulnerable were protected. The Gujarat situation resulted from large-scale violation
of human rights. This required a qualitatively different response from the
Commission;141 in particular it required the Commission in accordance with its Statute
to monitor compliance of the State with the rule of law and its human rights
obligations.142
From the outset the Commission emphasised the responsibility of the State to ensure
that human rights are not violated through overt acts, abetment, inaction or
136
Supra, n.71, Para. 20 (xi)
137
Supra n. 71, Para. 21 (III) (v)-(vi)
138
Supra, n. 71, Para. 20 (ix). The Commission noted that in its detailed Report of 28 March 2002 the
Government of Gujarat attributed the outbreak of large-scale violence in various cities and towns
across the State to “widespread reporting both in the visual as well as the electronic media.” The State
Report also adds that comments attributed to State officials were taken out of context by the media or
were entirely without foundation.
139
Supra, n.71, Para. 20 (xi)
140
Supra, n.71, Para.7
141
Supra, n.71, Para.8
142
Supra, n.71, Para. 20 (xiv)

negligence, whether of its own agents or non-state actors. It found serious failures of
intelligence and action by the State Government in relation to the events leading to the
Godhra tragedy and the subsequent violence, particularly in view of the history of
communal violence in Gujarat. In its Proceedings of 31 May 2002 the Commission
concluded that the Gujarat Government had failed to rebut the presumption of
responsibility, that the principle of res ipsa loquitur applied and that there was a
“comprehensive failure of the State to protect the Constitutional rights of the people
of Gujarat,”143 a view repeated in its Annual Report for 2001-2. 144 The Commission
highlighted the State’s failure to take appropriate action and to identify local factors
and players, the “uneven handling” of major cases arising out of the Godhra incident
and the subsequent wide-scale violence, the failure of the State Government in its
report of 12 April 2002 to rebut “repeatedly made allegations that senior political
personalities were seeking to influence the working of police stations” 145 and the
widespread mis-handling of complaints.146 The Commission also described itself as
“struck by the apparent failure of the Government of Gujarat to follow vigorously”
the 1997 Guidelines to Promote Communal Harmony issued by Central
Government.147
The content and tone of the Commission’s comments on the crisis in Gujarat reflect
its teleological approach to the interpretation of its Statute. In its Annual Report of
2002-3 the Commission, commenting on the first ten years of its existence, observed
that it had become increasingly necessary to construe its Statute in a purposive
fashion, “in such ways as are most compatible with the high purposes of the Objects
and Reasons of the Act.” In this it declared itself guided by the well-established
principle that the texts of Statutes “must not lend themselves to interpretations that
defeat the very intention of the legislation in question, or lead to unreasonable and
untenable conclusions.”148
143
Supra, n. 85, Para. 10
144
National Human Rights Commission, Annual Report 2001-2, Para.3.13: “At the time of writing this
report, the Commission had concluded that, in its opinion there could be no doubt that there had been a
comprehensive failure on the part of the State Government [of Gujarat] to control the persistent
violation of the rights to life, liberty, equality and dignity of the people of that State.”
145
Supra, n. 86, Para. 10
146
Ibid., Para. 20
147
Ibid., Para 44
148
National Human Rights Commission, Annual Report 2002-3, Para. 2.4

In August 2004, pursuant to an Application by the Commission, the Supreme Court

ordered the Government of Gujarat to establish a Cell to re-open the two thousand
cases closed by the local police, to re-investigate those cases where further material
warranted and, where it was concluded that further investigation was not warranted, to
post on the internet the reasons for concluding that the case should remain closed.149
A welcome feature of the Commission Proceedings is the apparently conscious effort

to “mainstream” the issue of violence against women and children and gender crimes.
This reflects the growing jurisprudence on crimes of gender violence of the ad-hoc
Criminal Tribunals for the Former Yugoslavia and Rwanda,150 the Statutes of the
International Criminal Court151 (to which India is not a party) and the so-called hybrid
or Special Courts,152 and the increasing willingness of the charter-based mechanisms
of the United Nations human rights system to explicitly address crimes of sexual
violence in the context of situations of gross human rights abuses. 153 The
Commission’s recommendation of 1 April 2002 that the media, especially radio,
should be involved in the identification of rape victims and the mobilisation of
counselling services, is evidence of an innovative and creative approach to the
challenge of responding to such crimes. 154 In its further Recommendations of 31 May
2002 the Commission specifically refers to the continued difficulties faced by victims
of rape and other acts of brutality in having complaints accurately and fully recorded
by the police, a situation compounded by insensitive police questioning and the lack
of women police officers. It notes that the State Government’s own Report of 12
April 2002 testifies to assaults on dignity “particularly of women and children through
149
National Human Rights Commission v State of Gujarat, Order dated 17 August 2004,
Crl.M.P.No.3741/2004 in Writ Petition (Crl.) No. 109/2003
150
See Charlesworth, H. and Chinkin, C. ‘Redrawing the Boundaries of International Law’ in « The
Boundaries of International Law : A Feminist Analysis » ; Manchester University Press, Manchester;
2000; Meron, T. ‘Rape as a Crime under International Law’ (1993) 87 American Journal of
International Law 424; Chinkin, C. ‘Rape and Sexual Abuse of Women in International Law’ (1994) 5
European Journal of International Law 1; Askin, K. ‘Sexual Violence in Decisions and Indictments of
the Yugoslav and Rwandan Tribunals : Current Status’ (1999) 93 American Journal of International
Law 97; Askin, K ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International
Law : Extraordinary Advances, Enduring Obstacles’ (2003) 21 Berkeley Journal of International Law
288
151
Rome Statute of the International Criminal Court 1998; U.N. Doc. 2187 U.N.T.S. 90
152
See Statute of Special Court for Sierra Leone, U.N. Doc. S/2002/246
153
See Report of Yakin Ertürk, Special Rapporteur on violence against women, its causes and
consequences - Visit to the Darfur region of the Sudan, dated 23 December 2004;
E/CN.4/2005/72/Add.5
154
Supra, n.86, Para. 21(IV) (ix)

acts of rape and other humiliating crimes of violence and cruelty” 155 and reiterates its
view that material collected or provided by “credible sources such as NGOs” should
be fully taken into account.156
The judgment of the Supreme Court in directing the retrial and transfer of the Best
Bakery case has been widely described as a “landmark.” The Indian Supreme Court
has an acknowledged record of judicial activism going back almost three decades,
although Professor S.P. Sathe in his book “Judicial Activism in India” 157 argues that
its gradual evolution from a “technocratic court” to an “activist court” can be traced
back further, to the last fifty years.158 As Sathe shows, the Supreme Court has played
a central role in facilitating access to justice in India, firstly through increasingly
liberal interpretation of Constitutional rights and secondly by liberalising the rules on
locus standi to allow greater public participation in the judicial process. 159 The latter
made possible the development of “public interest litigation”, also termed “social
action litigation” by Professor Upendra Baxi160 whereby individuals and activist
organisations were given access to the Supreme Court on behalf of the poor, the
oppressed and the disadvantaged to speak out against human rights violations, illegal
acts, poor governance and environmental degradation.161 Sathe also notes the use of
social action litigation by the Supreme Court “for the support of unpopular causes and
the protection of politically powerless minorities.”162
Thus in the instant case the Supreme Court explicitly referred to the link between
access to justice and human rights protection163 and made a number of observations on
the role of State Governments and the courts in preserving the integrity of, and public
confidence in, the judicial system.164 It warned of the impact of crimes, which it
155
Ibid., Para. 10
156
Supra, n. 86, Paras. 20, 32
157
Sathe, S.P. “Judicial Activism in India”, 2nd Ed.; OUP, New Delhi; 2002; Chapter 1; see also
S.K.Verma & Kusum (eds.) “Fifty Years of the Supreme Court of India – Its Grasp and Reach”; OUP,
New Delhi; 2003
158
Ibid., at 4-6
159
Ibid., at 16
160
Ibid., at 18
161
Ibid., at 17-19
162
Ibid., at 19
163
Supra n.1, Para 36: “The principles of the rule of law and due process are closely linked with human
rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of
law.”
164
Ibid., Paras. 35, 68, 73

described as “public wrongs in breach and violation of public rights and duties,” on
the community as a whole and society in general 165 and spoke of the overriding duty
of the courts to “arrive at the truth and subserve the ends of justice.” The Court’s
vision of a justice system which, by upholding the rule of law and preventing anarchy
and social chaos, consciously strives to serve the wider interests of society at large, is
clear from this judgment.166 Society at large is characterised by the Court in this
judgement as a key “stakeholder” in the justice system, as entitled to justice as is the
accused:167
“The community acting through the State and the public prosecutor is also
entitled to justice. The case of the community deserve (sic) equal treatment at
the hands of the court in the discharge of its judicial function.” 168
Thus the notion of fair trial is described as a “triangulation of the interests of the
accused, the victim and society”, and denial of a fair trial as an injustice to the victim
and to society as well as to the accused: “Fair trial means a trial in which bias or
prejudice for or against the accused, the witnesses or the cause which is being tried
(italics added) is eliminated.”169 The Court went further, saying that “public interest
in the administration of justice must be given as much importance, if not more as (sic)
the interest of the individual accused.”170 Respect for the rights and needs of victims
and recognition of the obligation of society at large to challenge impunity for crimes
such as gross human rights violations are the hallmarks of an advanced justice system.
At the same time, as the Supreme Court also recognised in its judgment, the
fundamental right of the accused to a fair trial as articulated Article 19 ICCPR must
be respected. This search for balance between the interests of the accused, the victims
and society in general raises the larger question, which it is beyond the scope of this
note to discuss, of the potential and limits of prosecutorial mechanisms for pursuing
accountability for gross and systematic human rights violations.171
165
Ibid., Para 35
166
Ibid., Paras. 35, 46, 49
167
Ibid.
168
Ibid., Para 49.
169
170
Ibid., Para 42.
171
See Ratner., S. and Abrams., J. “Accountability for Human Rights Atrocities in International Law –
Beyond the Nuremberg Legacy”, 2nd ed; OUP, Oxford; 2001

Since the handing down of the trial court judgment in June 2003, the Best Bakery case
has become a focal point of the legal response to the communal violence in Gujarat in
2002. Without the “star witness” the prosecution case is undoubtedly weaker.
Nevertheless the retrial is continuing and prosecution witnesses are still coming
forward for examination, including Zahira Sheikh’s aunt. In the meantime the Bilkis
Yaqub Rasool case may prove ultimately to have greater significance in establishing
the responsibility of State Governments for human rights atrocities and in holding
individuals, including government officials and agents, accountable for gross human
rights violations. The case was transferred by the Supreme Court in August 2004 172
for trial in Bombay by a Special Court, the first of the four cases subject to Supreme
Court transfer orders to be transferred. It concerns the murders on 3 March 2002 in
Gujarat of fourteen members of the same family and the gang rape of the surviving
victim, Bilkis Yaqub Rasool, who was left for dead. The police, political party
workers, civil servants, government doctors and ministerial aides have all been
implicated in the murders and rape or in the alleged cover-up. At the time of writing
(early October 2005) the outcomes of this case and of the Best Bakery case are
awaited.
172
See “SC transfers Bilkis case to Maharastra”, rediff.com, 6 August 2004, URL (consulted 23
December 2005) http://in.rediff.com/news/2004/aug/06guj.htm; “SC transfers Bilkis Bano rape case to
Mumbai”, Outlookindia.com, 6 August 2004, URL (consulted 12 December 2005) http://outlook
india.com/



The "Best Bakery" Case: Zahira Habibulla H. Sheikh and Another Vs State of Gujarat and Others

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B. The Substance of the Case

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At trial thirty-six of the seventy-three prosecution witnesses retracted their statements

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reservations”.31 In its judgment it blamed the communal situation on the legacy of

II. The Judgement of the Gujarat High Court 36

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In its view, the trial judge:

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C. The Interventions of the National Human Rights Commission

The National Human Rights Commission (hereafter “the Commission”) is an

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(i) The Preliminary Comments and Recommendations of the Commission

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In its proceedings of 31 May 2002 the Commission made a further set of

(ii) The Special Leave Petition and the Transfer Petitions90

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D. The Best Bakery Case: The Judgment of the Supreme Court

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“involves a delicate judicial balancing of competing interests……the

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The public prosecutor appeared to the Court to “…have acted more as a

“if the acquittal is unmerited and based on tainted evidence, tailored

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“The High Court [came] to a definite conclusion that the investigation

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The roles played by the National Human Rights Commission, non-governmental

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of speech and expression as articulated in Article 19(1)a of the Constitution of India

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In August 2004, pursuant to an Application by the Commission, the Supreme Court

A welcome feature of the Commission Proceedings is the apparently conscious effort

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