Taking cue from the rejection of senior BJP leader Sushil Kumar Modi's PIL against Railway Minister Lalu Prasad in the fodder scam case, the Gujarat Government on Wednesday moved the Supreme Court seeking dismissal of petitions filed by NHRC for transfer of certain post-Godhra riot cases outside the state.
In an application filed in the court, the Gujarat Government submitted that criminal litigation was exclusively an issue between the prosecution and the accused and third party had no right to interfere in it. "PIL is totally foreign to pending criminal proceedings," it said.
"It is a settled principle of law that once a chargesheet is filed in the competent court after competition of investigation, the process of monitoring by other courts for making investigating agencies concerned perform their function comes to an end," it said citing recent SC's ruling in Lalu's case.
Quoting from another judgment dismissing a PIL filed by Bihar JD(U) leader Rajiv Ranjan Singh in the fodder scam case, the state's counsel Saurav Kirpal contended that "monitoring of the pending trial is subversion of criminal law as it stands to mean that the court behind the back of the accused is entering into a dialogue with the investigating agency. Therefore, there can be no monitoring after the chargesheet is filed."
However, a Bench headed by Justice KG Balakrishnan asserted that the apex court was powerless where chargesheets were not filed properly and the procedure laid down the Criminal Procedure Code was completely forgotten.
Observing that bodies were buried without conducting post-mortem on them and doctors gave false evidence, the court said, "We are duty-bound to ensure justice."
"We will not allow the criminal justice system to be derailed," it said while making it clear that it would not remain a mute spectator if the state failed to uphold the rule of law. Gujarat riot cases could not be compared with other criminal cases, it added.
The NHRC and some NGOs had moved the apex court in 2003 seeking transfer of 17 major riot cases arising out of eight incidents during the post Godhra violence in Gujarat in 2002.
Fixing February 20 as the next date of hearing, the court directed Amicus curiae Harish Salve to prepare a brief note of eight major incidents of riots in which 17 FIRs have been registered. It also asked him to prepare a brief note on 1,900 cases in which closure reports filed by the Gujarat police have been found to be wrong by the Supreme Court-appointed Committee.
The Bench, however, de-linked petitions seeking transfer of three suits for damages outside the state in which Chief Minister Narendra Modi is one of the defendants. It fixed December 4 for consideration of the plea for transfer of three suits, which have been filed by the family members of NRIs killed during riots seeking damages.
Earlier, Salve submitted that the court will have to decide the victims' right to intervene in criminal proceedings and the extent of protection witnesses could be provided in a criminal case. He said the court would also have to determine the extent up to which the SC or HC could issue directions to the trial court in a pending case by-passing the CrPC.
Appearing for the accused, senior counsel KTS Tulsi raised the issue of maintainability of a third party PIL in a criminal case. The court agreed to consider it first on the next date of hearing.
Tulsi contended that all the issued raised in the PILs were for the trial court to decide and a proper procedure was already there in the CrPC for that.
A Delhi Additional Sessions Judge has already submitted a report regarding 1,950 cases in which Gujarat police had filed closure reports that were accepted by Magistrate courts.