No bail for Godhra accused
|
Backgrounder
Godhra -Discriminatory justice
Eighty
Four Muslims Denied Personal Liberty in the Godhra Case for Nearly Six
Years
The plight of those accused
in the Godhra train arson case is a grim travesty of justice. They have
been denied a fair hearing and deprived of basic freedom. While in
trials related to the 2002 carnage incidents, influential accused have
been let off, repeated efforts to obtain bail for the Godhra accused
have proved futile.
A total of 135 persons were
accused in the Godhra arson. Of these, 22 persons are absconding. Twelve
of the accused were released under Section 169 of the CrPC, which
provides for release of accused if, after investigation, there is found
to be insufficient evidence against them. One of the accused died while
in judicial custody. Of the remaining 100 persons, 84 persons are still
in judicial custody, including two persons who were minors at the time
of the incident. Only 16 persons have been granted bail. This includes
bail granted to three persons who were minors at the time of the
incident.
Godhra
Hindu Victims of the S-6 Coach of Sabaramati Express also Ask for
Transfer Out of Gujarat in SC
In October 2003 Hindu
victims of the Train Burning Filed a case for Transfering the Godhra
Trial out of Gujarat. It was following this application by CJP that the
Godhra Trial was stayed by the SC in November 2003.
No bail
order since October 2004 from the Courts
The last bail order was
granted by the Gujarat High Court on October 30, 2004. The court has
simply not heard any bail applications since. One of the 22 absconding
accused, a maulvi, was implicated in the crime by an accused/witness,
Sikandar, who stated that the maulvi was allegedly seen on the terrace
of a Masjid at Godhra (ostensibly planning the conspiracy) although it
was later established that the Maulvi was in Maharashtra and not even in
Godhra on the relevant day. There were many serious discrepancies in the
arrests, glaring inconsistencies that have been pointed out to the
state, which simply refuses to address these concerns. Some of these
anomalies have been laid out below.
Central
Review Committee Rules That POTA is not applicable to Godhra, May 2005
Legal provisions under POTA
allow for the review of individual cases by a central review committee
to prevent misuse of the Act and its draconian provisions. A decision by
the Central Review Committee on May 16, 2005 ruled that none of the
alleged offences in the Godhra case warranted the invocation of POTA.
However, the committee’s decision has not been taken into consideration
by either the Gujarat government or the POTA court. Matters relating to
bail for the accused, especially in view of the decision by the Central
Review Committee, have been brought before the apex court. However these
too have faced repeated delays.
Supreme
Court permits Accused to File Writs for Bail, No Bail after Six Hearings
Following an order of the
Supreme Court (Justice BP Singh in ----) giving liberty all accused to
file for bail while hearing the matters relating to the findings of the
Central POTA Review Committee, seven separate such applications have
been filed. Despite six-seven hearings in the matter, the matter has not
been seen fit to be heard. Advocates Shri Harish Salve, Shri Rajeev
Dhawan and Smt Kamini Jaiwal have appeared for the accused in these
matters. Smt Nitya Ramakrishnan has been the instructing advocate.
Discriminatory Justice in Gujarat ?
The Special
POTA Court and the High Court have passed stereo-typed orders of
rejecting the bail applications, without taking into consideration the
evidence against the accused, and only on singing a song that the case
is very serious.The Special POTA Court have passed order of temporary
bail releasing the accused for one day, or two days under the strict
police escort for serious illness, death ceremony, marriage ceremony and
social ceremonies, and they are passed on the strict conditions and
with the escort and the accused should be kept in Godhra Sub Jail in the
evening time.
Who are the
real accused behind the Godhra incident? Are these framed innocents?
At least 20 of the
accused persons were arrested as members of the mob, several hours after
the event, without any statement or complaint naming them at the time
Five of the Godhra
accused are shown as identified by a witness, Dilip Ujjambhai Dasariya.
A schoolteacher, Dasariya has stated on affidavit that he was not
present at the spot but on duty 25 kilometres away when the incident
took place. The school where he teaches has certified to this fact. The
prosecution has however refused to place this fact on record. Aminabibi,
the wife of accused, Saeed Abdulsalam Badam, a resident of Chikhodra
village in Godhra taluka, has filed an affidavit before the
Supreme Court stating that her husband, a poor labourer, has been
falsely implicated based on the solitary statement of Dilip Dasariya
who, by his own admission, was not present at the scene of the crime on
February 27, 2002.The plight of those accused in the Godhra train arson
is indeed a sorry one. Accused No. 54, Ishaq Mohammed Mamdu, is totally
blind. In 1997, years before the train arson took place, the civil
surgeon at the district hospital issued a certificate confirming that
Mamdu suffered from 100 per cent blindness, following which he received
assistance as a handicapped person from both the state and central
governments. Mamdu’s father has made applications for reinvestigation
into his arrest but this has not been done. On the contrary, in a
pathetic attempt to justify Mamdu’s arrest, the state of Gujarat has
obtained a doctor’s statement dated June 2002 that states, vis-à-vis the
1997 certificate, that though Mamdu is blind his eyesight allows him to
see up to a distance of one metre. Moreover, there is no record of a
physical examination being conducted on Mamdu prior to the doctor’s
certificate being issued. The state’s contention is that he was part of
the mob. Despite this, and though the only allegation against him is
that he was part of the mob, Ishaq Mamdu’s bail application has been
consistently rejected.
Another of the accused
persons, 42-year-old Fakruddin Musalman, died while in judicial custody
on April 30, 2003. Fifty-year-old Siraj Abdulla Jamsa, a cancer patient,
passed away after he was granted bail. Gulzar Agnu Ansari, aged about
23, suffers from tuberculosis even today. Maulana Hussein Umerji, aged
about 60, suffers from kidney malfunction, high blood pressure and
arthritis. Siddiq Abdulla Badam, aged about 38, suffers from bone
tuberculosis. Anwar Mohammed Menda, aged about 33, suffers from serious
mental depression. Idris Ibrahim Charkha, aged about 32, also suffers
from serious mental depression. Anwar Hussein Ahmed Pittel, aged about
30, suffers from severe haemorrhoids. Leaders of the minority community
who played a significant role in providing relief to victims of the
post-Godhra carnage were specifically targeted and arrested without
evidence. Maulana Umerji, Harun Abid and Harun Rashid are some examples.
Misconduct
of Investigating Agencies in Gujarat
The misconduct by
investigating agencies and the prosecution in the Godhra trial is
potentially extremely dangerous not only because it violates the rule of
law and the basic rights of the accused who have been unfairly
implicated. In the wider context it epitomises the discriminatory system
of justice at work in the state of Gujarat. Discrimination is
particularly apparent with regard to bail, where many of those accused
of mass murder in the post-Godhra violence roam free while most of those
allegedly responsible for the Godhra arson are denied bail five years
after the event. This sends a detrimental message to society as a whole.
Gujarat
Judiciary Disregard for Higher Judiciary
The Citizens for Justice
and Peace has placed on record before the Supreme Court the sworn
affidavits of five Hindu victim survivors of the Godhra arson, family
members of victims who died in coach S-6 of the Sabarmati Express, who
have also made a plea to the apex court for transfer of the Godhra arson
case out of Gujarat. They cite threats, intimidation and political
manipulation by the state administration that precludes a free and fair
trial within Gujarat. They have stated that the VHP has influenced
public prosecutors to present a partisan and unsubstantiated theory
behind the tragedy. The case for transfer of the Godhra trial was made
and supported by family members of the accused and supported by Hindu
victim survivors of the train arson incident.
A glaring example of injustice to the accused
detained in the Godhra case, is that though a request was made to the
Special POTA Court that the accused had preferred Transfer Petition in
the Hon’ble Supreme Court of India being Transfer Petition (Criminal)
No.54 of 2003 and also preferred a review application before the POTA
Review Committee under section 60, in spite of that the POTA Court has
framed charges in the case of the subject matter of POTA Case No.10 of
2003. Result: The accused are suffering and are not in a
position to exercise their legal right with a view to save themselves
from the draconian law.
Illegal
invocation of POTA in the Godhra case
The invocation of POTA
(enacted on March 28, 2002) in the Godhra train arson case was itself
both mala fide and illegal. On February 27, 2002 i.e. when the alleged
offence occurred, POTO (Prevention of Terrorism Ordinance, 2001) was not
applicable in the area. It was on February 28, 2002, after the Godhra
incident, that the state of Gujarat issued a notification declaring the
whole area to be a notified area under POTO.
The Gujarat government did
not publish the necessary circular in the state gazette announcing the
application of POTO to Godhra on February 28, 2002. In spite of this, an
attempt was made to wrongly apply POTA in the Godhra arson case by
declaring that POTO could be applied to the Godhra incident on February
28. This attempt failed.
It was nearly a year later,
on February 19, 2003, that POTA was invoked in the Godhra case. It
appears clear that this followed the confessional statement by Jabir
Binyamin Behra dated February 5, 2003, a statement that Behra ultimately
retracted, stating that the confession had been extracted under torture.
Behra’s confessional statement drew the first picture of a pre-planned
conspiracy behind the train arson incident. Interestingly, five days
before POTA was applied in the Godhra train arson case i.e. on February
14, 2003, bail was granted to most of the accused for the first time by
the Gujarat High Court. It is evident that POTA was applied to ensure
that further bail orders were not passed.
Accused
Apprehensive of Unfair Treatment in State of Gujarat
Shockingly, over 45 of the
accused have made written applications voicing their apprehensions about
the likelihood of a fair trial within the state of Gujarat. From a
perusal of these applications it is clear that the accused see little
hope of facing a free and fair trial in the state. The persistent
refusal by investigating agencies to follow up and investigate the facts
raised by these applications, and the failure of the special POTA court
to ensure this, also suggest that the Godhra arson case is not being
conducted in a manner that inspires confidence in the people.Some of the
accused persons who were jailed at the Vadodara central jail were
subsequently transferred to the Sabarmati central jail and they have
also challenged this transfer. The jail transfer has meant that families
of these accused persons, all from economically backward sections,
already reduced to penury by the absence of an earning family member,
cannot even exercise their basic fundamental right and visit their kin
in prison.
Discrepancies in Investigation
There are also severe
discrepancies in the discovery panchnamas relating to the
recovery of weapons. These too have been detailed before the Supreme
Court.There are similar and serious lapses in the timing and
statements/complaints in the arrests of the accused.
All police witnesses who
provided statements are employees of the Godhra railway police station
and serve under the same investigating officer who has been
investigating the case. This further implicates the investigating agency
on charges of bias. In fact, 36 of those accused in the Godhra train
arson case were acquitted in another case, related to the Neelam Lodge (Godhra
town CR No. 66/2002), on the same day. Ironically, the police witnesses
are common witnesses for the same accused in both cases. After the
police filed the first charge sheet in May 2002, the government’s own
Forensic Science Laboratory report came out. Far from strengthening the
government’s position, the report exposed the prosecution’s case. This
led to the entire team of police investigation officers being changed.
The statements before the
police as well as the witness statements that allegedly led to the
accused, clearly indicate that some of these witnesses were also active
participants in the commission of the crime. What is more, if their own
statements are to be believed, these witnesses are guilty of far more
serious offences than those who were booked and denied bail for the past
few years. The very magistrate who had earlier recorded statements by
two such witnesses under Section 164 of the CrPC, refused to record a
statement by accused/witness, Jabir Binyamin Behra, on January 29, 2003
when he realised the seriousness of the lapse. Instead, he directed that
Behra should be brought before the chief judicial magistrate (CJM) or a
high court judge because the judicial first class magistrate’s court did
not have the appropriate jurisdiction. Following these developments,
Behra was brought before the CJM in February 2003 and a confessional
statement by him was recorded on February 5. All three of Behra’s
recorded statements are practically identical and adhere to a strange
prototype – there is virtually no change in their content. Yet the law
is clear in that such statements must be in the language and words of
the accused.The Gujarat police and prosecution have also denied the
Godhra accused access to vital documents. For instance, confessional
statements and statements by the Patels dated April 10, 2002 were not
initially supplied to the accused persons. As the accompanying story
shows, Prabhatsinh and Ranjitsinh Patel, employees of a petrol pump in
the area, had clearly stated that no petrol had been bought from them
(petrol that the prosecution claimed was used in the arson).
Stay by
Supreme Court on Godhra Trial, Plea for Transfer out of Gujarat
The stay on the Godhra and
post-Godhra carnage cases by the Supreme Court did not extend to staying
the investigations. The state of Gujarat, which is the prosecution in
all these cases, has, in the case of the Godhra arson, continued with an
aggressive investigation apparently to suit political ends. In the post-Godhra
cases however investigations have simply not proceeded as they should.
True investigations would involve serious complaints by victim survivors
about doctored FIRs, incorrect naming of accused and several other
harmful revelations.
The conduct of the
judiciary in Gujarat, be it in the POTA court or the high court, has
been highly questionable. Bail applications have been pending without
decision in the Gujarat High Court since May 2003. Hence the CJP has
supported the NHRC’s plea for a transfer of investigation and trial of
the Godhra arson case outside Gujarat.
|