Victim's Rights

The Supreme Court reopened 2000 riot cases in Gujarat in the year 2004 vide order dated 17.8.2004 the Supreme Court directed the state of Gujarat to -
Constitute a cell consisting of Deputy Inspector Generals and Range Inspector Generals as directed in the order for looking into the material available in the 2000 cases where in earlier summary closure reports had been filed to find out whether further investigation was necessary in the cases. The state was directed to submit quarterly reports before this Hon'ble court. The first of the reports was to be submitted within 90 days of the order i.e by 17.11.2004. The state was also directed that-
"In the event of their coming to the conclusion that further investigation is not required, the reasons for their conclusion shall be recorded and put on the internet for the purposes of informing anyone who may be interested in bringing the matter to the attention of the court."
In the matter of acquittals and non filing of appeals (Crl.M.P. 3742/2004) vide order dated 23.8.2004 it was directed that in 213 cases of communal violence resulting in acquittal, excluding the cases wherein appeal had already been filed, Learned Advocate General of State of Gujarat will scrutinize the cases
"to determine whether the cases of acquittal ought to be challenged by way of an appeal."
This Hon'ble court further directed that -
"As far as those acquittals which may arise in future, in respect of other such cases, the Local Public Prosecutor/ concerned Public Prosecutor shall be instructed by the State Government to forward a copy of his report in respect of each acquittal, to the learned Advocate General, so that the Advocate General can take a decision thereon in conjunction with the Joint Secretary/ Law secretary. Considering the number of the matters the Advocate General is at liberty to take such assistance as he may require in order to enable him to discharge his duties/ obligations under this Order."
The state of Gujarat has reviewed 1772 cases and reopened 1242 cases out of a total no. of 2020 riots cases in which A summary had been filed. Vide report dated 18.12.2004. 173 cases in which appeals where not filed earlier, submitted by the legal department were scrutinized by the Learned Advocate General and recommendation of filing appeal in 10 cases was made. The legal department in the state of Gujarat has referred 332 cases of Post- Godhara riots in which the trial court acquitted the accused to Advocate General for opinion and the learned Advocate General advised to file appeal in 13 cases. The state has already filed appeal in 13 cases.
The role of the police, public prosecutors and the state have placed an ominous shadow of doubt on the criminal justice system in Gujarat. The Victims rights petition namely Intervention Application 9236/2005 and 6767/2006 is an attempt to help the victims secure their legal rights in the long legal battle ahead.

Follow-up of The Re-opened Cases

The state of Gujarat had placed information regarding 18 cases in which a decision to close the cases again had been taken.

Even the information placed about 18 cases contained stereo type reasons as follows-
" "Lonely place", "late night incident on highway", "no eyewitness", "neither complainant nor witnesses could identify the accused in spite of repeated efforts being made by the police", "complainant could not identify the accused as he was not available on the spot, complainant could not clarify the accused", "no eyewitness as the incident took place at late night, there is no evidence and witnesses", "during communal riots he was passing on road with Padle Rixa and stabbed with sharp weapon after inquiry there is no evidence and witnesses", "dead body was thrown in dry lake at lonely place".

Ironically, the Supreme Court had reopened the 2000 cases on the grounds that "Omnibus" First Information Reports had been filed in the 2002 Riot cases. It is proof that reinvestigation was conducted diligently conducted to clarify vague facts mentioned above.

The cases under review involved serious crimes involving rape, murder, arson, attempt to murder, rioting armed with deadly weapons etc. In the said cases no efforts were made by the investigating agency to properly investigate the matter and find out witnesses to the crime, trace the accused collect any other relevant evidence and in many of the cases involving serious crimes, review was concluded after a cursory inquiry into monetary loss suffered by the victims.

Rehabilitation
As a result of internal displacement suffered by the victims of communal violence of year 2002 a large number of families, around 600 of them were living in relief camps. Such displacement and fear of further violence preventing the victims from returning to their original places affected the prospects of justice to the victims detrimentally.

As the victims who cannot return to their original places of residence and business because of being under fear may not be able to withstand the pressure from the accused. Further the displacement to far away places made it difficult for the victims or the witnesses to assist in investigation or prosecution in the respective courts.

1. That adequate security measures to instill confidence in the displaced families to facilitate their return to their original places of business and residence was essential to ensure justice to victims in the said 2000 cases.
2. That indiscriminate acceptance of closure reports filed by the police in the said 2000 cases was contrary to law in as much-
   • the subsequent reopening of many of the said 2000 cases on review, showed, non application of minds by the respective courts
   • the requirement of giving notice to the victims/ person interested in cognizance being taken of the case was not fulfilled.
   1. That the local police or the Special Investigation Team were not providing any information to the concerned person or non governmental organizations facilitating their assistance in ensuring just proceedings in the said 2000 cases.
   2. That in matters relating to communal violence in the year 2002, their was a deliberate failure on part of the State of Gujarat in filing appeals against interim or final orders against the state and in favour of the accused.
   3. That in review of 173 judgments of acquittal, in the cases relating to communal violence in the year 2002, on directions by this Hon'ble Court, the Advocate General recommended filing appeals in 10 of the cases.
   4. That the said review by the Advocate General did not show whether any of the acquittals were a result of deficient, biased or unfair investigation or prosecution.

   Criminal Justice System Cannot Deliver Justice in Cases of State Complicity
   The above-stated facts show a failure of justice delivery system in respect of the 2000 cases requiring a mechanism to monitor the functioning of the criminal justice system in respect of the said 2000 cases, under the aegis of National Human Rights Commisssion.

   In respect of the cases where the due to notice not being given to the accused, or non provision of copies of judgments or other \documents or displacement the victims in the said 2000 cases could not challenge the respective judgment orders, the limitation of time prescribed for challenging the said orders/judgments.

   The State of Gujarat till date has not formulated any policies showing steps taken or contemplated for effective investigation and prosecution in the cases so reopened to ensure that justice to the victims is done.

   It is submitted that in most of the closed cases, the investigating officers did not find any evidence and recommended closures. The nature of the cases, i.e they were initially closed inspite of requiring further investigation and that reinvestigation is being done by the same investigating agency and only as a consequence of orders of this court, requires that special measures to ensure effective investigation and prosecution be formulated, including directions to inform the victims about the status, decisions and orders in the cases.

   To ensure that the concerns of the victims too are addressed the Legal Aid Services Authority needs to be directed to provide legal aid to the victims to ensure adequate representation of the victims in relation to the proceedings in the cases. To ensure that lax investigation or prosecution do not again result of miscarriage of justice in the cases it is required that the proceedings in relation to the cases be monitored under the aegis of the National Human Rights Commission.

   The special circumstances and the earlier miscarriage of justice in the cases at the hands of the Respondent requires that specific guidelines be laid down for investigation and prosecution in the cases. In absence of any specific measures to ensure proper investigation and prosecution it is likely that in spite of the painstaking efforts by this Hon'ble court to ensure justice to the victims, ultimately the fate of the cases might be no different, than it was, as a result of the initial closures.

   Some Prayers of the Victim's Rights Petition

   1. A list of all the reviewed cases along with all details, whether closed again or reopened, with the details of P.S., Sections under which the case is registered, FIR NO. and C.R. No. be placed on the website along with contact details of the respective investigating officer who can be contacted by any person concerned about the case.
   2. The Special investigation team also be directed to find out whether any omnibus FIR's are filed in cases where in view of separate complaints made by the victims or witnesses it is more appropriate to register seperate FIR'S for the various offences clubbed into one FIR registered at the instance of any police officer or other person.
   3. A victim/ witness be given due notice before an investigating officer records statement of the victim or the witness a copy of the statement recorded by the investigating officer be given to such witness who statement is recorded, free of cost.
   4. A clarification be made that a victim or witness is entitled to be accompanied by a lawyer and that the counsel has a right to be present during recording of the statement of the victim/witness./complainant.
   5. In the event of filing a closure report notice to the victim be given that such a report is being filed to afford the victim/witness an opportunity to file a protest petition against the same.
   6. That the State of Gujarat be directed to take up confidence building measures publicizing that security to the victims/witnesses shall be ensured and adequate protection shall be provided by all means. The measures should be adequately publicized in vernacular newpapers. In addition special awareness campaigns to inform the victims of communal violence to come forward to assist the investigating agency with any information/evidence regarding cases communal violence.
   7. That on a bail application being presented, a notice of the same be given to the witnesses and the investigating officers be directed to submit a report stating whether the accused has made ay attempt to influence or threaten the witness or tamper with evidence in any manner.
   8. A clarification be made that a victim/complainant/informant is entitled to get a copy of the charge sheet and case record free of cost and further that witnesses or any other concerned person be provided the same on payment of usual fees.
   9. A clarification be made that a public prosecutor is under an obligation to appraise the court of any deficiencies or defects present in the police investigation requiring further investigation at stage of cognizance being taken of the case itself.
   10. That the investigating agency should be hereby directed to consider the complaints of threat and intimidation with utmost urgency and that the same should be reduced into FIR at the earliest and appropriate investigation into the same should be carried out against such persons with out any lapse of time.
   11. That the State of Gujarat be directed to take strict legal action against the investigating officer for not acting on information regarding accused made available to the officer or which comes to the knowledge of investigating officer during investigation.
   12. In the event an accused is discharged or acquitted the victim/complainant /informant be given notice of such proceedings and should be entitled to a copy of the order of discharge or acquittal and the case record.
   13. That the State be directed to give notice to the victims prior to any decision to file an appeal against acquittal or not to file an appeal along with judgment of acquittal and the case record.
   14. The State of Gujarat be directed to provide the following:-
       • A list of the total number of acquittals to date, together with the details of the acquitting court, FIR no. and C.R. number and such list to be regularly updated.
       • A list of the cases where appeals have actually been filed with the relevant court and appeal no.
       • A list of cases where appeals are due to be filed or recommended.
       • A list of cases where no decision has yet been made, so under review.
       • A list of cases where a definite decision not to file an appeal and the reasons for this decision.
       • A copy of case record including a memo of appeal on application by any victim or concerned citizen.
   15. That the State Legal Services Authority be directed to appoint victims' counsels, wherever the victim so applies and the counsel be appointed either as per choice of the victim or with the consent of the victim.
   16. That those public prosecutors who failed to forward a case of acquittal for filing of appeal and where a contrary opinion i.e to file and appeal is arrived at by the office of the Advocate General the conduct of the Public Prosecutor be enquired into and strict action be taken on the basis of findings of such enquiry.
   17. That any complaint of the victims against Public Prosecutors be expeditiously disposed off by scrutinizing the conduct of Public Prosecutors and assigning the case to another Public Prosecutor immediately, with the consent of the victims concerned.
   18. That the appointment of a new Public Prosecutor should require the consent of the victim.
   19. That, a mechanism under the aegis of National Human Rights Commission, consisting of Retd. High Court Judges, a Police Officer of rank not less than the Director General of Police, with District and Sessions Judges as ex officio members for their respective Districts and Advocate General of the State be appointed to inform/ advise/ monitor investigation and prosecution in the cases and to give binding directions to the appropriate authority in their discharge of duties in the said matters.
   20. That the said mechanism so established shall be periodically supplied progress reports at regular intervals by the appropriate authorities for the cases covered by the subject of the instant petition.
   21. That the said mechanism shall make appropriate recommendations to the appropriate authorities in view of any complaints by victims or concerned persons or N.G.O's or suo moto on the basis of said reports submitted or called from the appropriate authorities or on the basis of inspection or examination of official records as and when deemed necessary.

   Judgements