Zahira Habibulla H. Sheikh and Another Vs State of Gujarat and Others

Abstract

This Case is Considered as one of the landmark cases in the Indian Judiciary System as it was the first case to be tried concerning the Godhara riots. The best bakery case also termed as Tulsi Bakery case was one of the legal cases which involved the burning of the best bakery, which was a small outlet in Vadodara, Gujrat in the Hanuman Tekri area on March 1, 2002.

In this case, a mob targeted a sheik family and resulted in the death of 14 Muslims including 3 Hindu employees who were running the bakery. All the accused who were nearby 21 were then acquitted by the court due to shoddy police work and issues with evidence.

This case symbolizes the brutality of the carnage during the post-Godhara riots, in which a near about 1200 people were killed.

The case deals with the contempt of court

Introduction

On 6 June 2005[1] 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.[2]

The case was transferred to the Bombay High Court for retrial on the order of the Supreme Court, according to its judgment of 12 April 2004.[3]  It is one of over two thousand and thirty cases[4] 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.

Background of the case

On February 27, 2002, around 8 o’clock, in Sabarmati express train Bogie No. 6 a Muslim community mob set afire near Godhra railway station, in about 59 persons died and 48 injured in the Bogie, the Bogie was reserved by ‘Kaar-sevaks’ who were returning from Ayodhya to Gujrat. After that incident, the news was widely spread through media. Due to which the Vishva Hindu Parishad on 28/02/2002 announced bandh. After the news throughout the Gujrat, there was a spate of communal riots.  The commissioner of police of the Vadodara city has announced an indefinite curfew in the entire city order under section 144 of the code, the curfew will be in the entire city except for the area under Jawahar Nagar police station.

On 28/02/2002, the incidence of communal riots started taking place in Vadodara city. Due to incidence in panigate police station since 27/02/2002 the precautions were started taking place by the police and police patrolling was also going. the police were receiving repeatedly reports and messages from the Police control room regarding incidents of attack on persons and Muslim property.

There is a neighborhood called ‘hanuman take locality’ within the jurisdiction of Panigate Police Station. In that locality only there was a building referred to as ‘Best Bakery’ and residential premises having ground plus ground floor and terrace above the primary floor. The building was belonging to 1 Habibullah shaikh and getting used as their residence by the owner of the bakery and his family. Habib has taken placeulla had died a couple of months before the incident taken place on 01/03/2002 and 02/03/2002. His wife Saherunnisa, his two sons – Nafitulla and Nasibulla, his three daughters- sahera, Zahira, Sabira, and nafitulla wife Yasmin were also residing in that building only, the building was known as the best bakery building. In that building there were many servants also living, they also accustomed reside within the same building, and that they are accustomed to sleeping on the terrace of the building. After the death of Habibulla, the brother of Saherunnisa, kausarali had come to reside within the best bakery building to assist the family in running the bakery. [1] The attack was stated to be in revenge for the deaths of the Sabarmati Express train victims. 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. 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 neighbors and members of her family, including women and four children under the age of five years, were killed.

Facts [2]

On 02.03.2002, Best bakery at Vadodara was burnt down by a mob of large number of people. In this incident 14 people died. The attacks were stated to be a part of retaliatory action to avenge killing of 56 persons burnt to death in the Sabarmati Express.

In this case Zaheera named women was the main eye witness who lost family members including innocent children and helpless women in the incident. A day after the bakery was burnt the owners daughter Zaheera Sheikh lodged a police complaint against the 21 persons accused.

•In this , Zaheera turned hostile , her mother and her brothers retracted their statements in the court. Zaheera said that she was on the terrace while the incident took place and couldn’t identify the accused.

•Zaheera along with her mother told the Sunday express that she lied in the court because she feared for her life.

•The NHRC filed a special leave petition in the supreme court  and asked for a retrial in a court outside Gujrat.

•In a sworn affidavit to the Supreme Court, Zaheera said she turned hostile because when she reached the court premises she met Chandrakant Batthoo, who threatened her . He told her that if she stuck to her earlier statements , the remaining four members of her family will be killed.

•Supreme court  Division Bench ordered retrial of the Best Bakery case outside Gujrat in Maharashtra.

•While transferring the case to Mumbai ,the supreme Court stated, “ The State of Gujrat shall also ensure that the witnesses are produced before the concerned court , whenever they are required to attend them, so that they can depose freely without any apprehension of threat or coercion from any person. In the case if any witness asks for any protection , then the state of Maharashtra shall also provide such protection as deemed necessary, in addition to the protection to be provided for by the state of Gujrat”.

Issues [3]

whether this would amount to contempt of the court?

Related Provisions

Indian panel code 

section 195 – Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment

Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which[by the law for the time being in force in [India]] is not capital, but punishable with [imprisonment for life], or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished.

Contempt of court, act 1991

 Section 15 of the

 – Cognizance of criminal contempt in other cases.? (1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by? ?(a)? the Advocate-General, or ?(b)? any other person, with the consent in writing of the Advocate-General, ii[2] [or] ? iii [3] [(c)? in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer.] (2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.

Constitution of india

Article 129 of the Constitution – Supreme Court to be a court of record —The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 142(2) of the Constitution – Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc  

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

• Related Cases

1. In fact, the High Court has felt that extraneous materials are now sought to be introduced and it is not known as to whether the present statement of the witnesses is correct or what was stated before the trial Court originally was the truth. The Court analysed the evidence of the material witnesses and noticed several relevant factors to arrive at this conclusion. The necessity and need for additional evidence has to be determined in the context of the need for a just decision and it cannot be used for filling up a lacuna. Reference is made to the decisions of this Court in  Jamatraj Kewalji Govani v. The State of Maharashtra (1967 (3) SCR 415) and Mohanlal Shamji Soni v. Union of India and Another (1991 Supp (1) SCC 271).

• While dealing with the claims for the transfer of a case under Section 406 of the Code from one State to another this Court in Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani Jethmalani (1979 (4) SCC 167), emphasised the necessity to ensure fair trial, observing as hereunder: “Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.

• In Rambhau and Anr. v. State of Maharashtra (2001 (4) SCC 759) it was held that the object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. The Court has to keep these salutary principle in view. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the Legislature had put the safety valve by requiring recording of reasons.

Judgment [5]

At the trial in Vadodara Session Court in June 2003, Court acquitted all the accused in lack of evidence and lack of confidence in the statement of witnesses including the Main witness Zaheera Sheikh. Session Court held that there is no sufficient evidence that a large number of peoples have done such act and carnage with full of intention and there is no prima facia evidence is available.

Gujrat High Court has given judgment on appeal of State of Gujrat on 26^th December 2003 and reasons were given on 12^th January 2004. Gujrat High Court had denied Retrial of the case and said that the following power was given in Cr.PC Court is satisfied that there is no further requirement of a retrial. Court has also dismissed the plea of the National Human Rights Commission on stay of proceeding that plea is pending with the supreme court.

On 12^th April 2004 Supreme Court of India ordered for retrial, reinvestigation, and transfer of the Bakery case to Bombay High Court, the supreme court explain the case as “without Parallel and Comparison” and said that the fact of the case for retrial is inevitable.

In February 2006, Session Court in Mumbai sentenced 9 accused had given life imprisonment.  After an appeal in Bombay High Court by the accused, Bombay High Court has given judgment that 4 were given life imprisonment and 5 had acquitted by the court.

Concepts Highlighted

This judgement is one of the landmark judgements of the Indian judiciary. Not only it had a heinous crime of genocide with it but also it had many issues which are always present in a case but rarely surface like the impact of media , hearsay evidence, witnesses turning away from their statements etc. The judiciary has tackled all the issues in an intelligible way and paved way for future legislations. But still many questions remain unanswered like what can be done to stop witnesses from perjury, is there always influence of police in every case and how can this influence be curbed, what is the role of media in this context do they have the right to judge any person without the knowledge of law and system and do they always ride high on the wave of public opinion and keep on giving their decisions , do the courts give their independent judgement or do they buckle under the pressure of popular vote and sympathy ?

References

[1]https://mail.google.com/mail/u/0/#inbox/QgrcJHsbhNpDRBqVzWdrxtqQBJhcCsRqpZL?projector=1&messagePartId=0.1

[2] http://www.ejusticeindia.com/case-summary-best-bakery-case/

[3] https://www.scribd.com/document/50302217/Best-Bakery-case

 [4] http://www.legalservicesindia.com/article/544/Best-Bakery-Case-&-Law-of-Evidence.html

[5] http://www.ejusticeindia.com/case-summary-best-bakery-case/

[1] Zahira Habibulla H. Sheikh and Another v State of Gujarat and Others, AR 446/2004, 6 June 2005

[2] Ibid., AR 446-449/ 2004, 21 February 2005

[3] Supra, n.1

[4] 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