1984 riots: HC seeks reply from acquitted accused on retrial

The Delhi High Court today sought the response of those acquitted in five 1984 anti-Sikh riots cases as to why it should not order reinvestigation and retrial against them as they had faced allegations of "horrifying crimes against humanity".
A bench of Justices Gita Mittal and Anu Malhotra issued show cause notices to several accused and complainants seeking their response.
"The complaints disclose horrifying crimes against humanity. These point out that male members of one community were singled out for elimination. These suggest that these were no ordinary crimes, or simple murders (if ever a murder could be termed as simple). Treated as individual cases, while the culprits got away scot free, everybody else, the police, the prosecutors, even the courts, appear to have failed the victims, and, most importantly society.

"Perhaps, had these terrible offences in 1984 been punished and the offenders brought to book, the history of crime in this country may have been different. We are of the view that if we fail to take action even now, we would be miserably failing in our constitutional duty as well as in discharging judicial function," the bench said.
The court issued suo motu directions to "secure ends of justice" after perusing the trial court records regarding the acquittal of accused in five different cases in 1986 relating to killing of Sikhs during the riots which broke out a day after the assassination of then prime minister Indira Gandhi on October 31, 1984.

The trial court records were placed before the high court by the CBI during the hearing of another 1984 riot case in which the acquittal of Congress leader Sajjan Kumar and punishment awarded to other convicts is under challenge by CBI, the riot victims and convicts.

The bench, which directed the Delhi Police Commissioner to ensure compliance of its judgement, also appointed an amicus curiae in each of the five cases and listed the matter before it for April 20.
It said even if each complaint could be examined as a standalone crime, it is undisputed that each of them relates to the serious offence of murder.

The high court, in its five separate verdicts, each
running into over 80 pages, expressed unhappiness over the failure of the prosecutors to assist the trial courts and said they had not ensured that the truth was brought out and guilty punished.
"The prosecutions were launched without any effort at ensuring that investigations were honestly complete and that culpability could be fixed," it said.
"Given the manner in which the Delhi Police appears to have conducted itself and the failure of the prosecution in performing its basic functions, we are of the view that independent assistance is needed by this court for consideration of the case," the bench said while appointing amicus curiae in the matter.

The bench issued notices to 11 accused, including former councillor Balwan Khokhar and ex-MLA Mahender Yadav, on the complaints filed regarding rioting incidents on November 1 and 2, 1984 in Delhi Cantonment area.
Finding fault with the trial court judgements, the bench said prima facie the verdicts acquitting the accused "reflect a very perfunctory and hasty disposal of the cases which has deeply troubled our judicial conscience".
"Would it be permissible for this court to shut its eyes in the matter or does the available statutory regime and law make available any possible option for intervention at this stage?" it said, while exercising its judicial power to issue notice to the parties on its own.

The bench said it was necessary to issue notice to the persons who have stood trial and afford them a reasonable opportunity of hearing before passing any order.
It observed that a prima facie consideration of the charge sheet filed before the trial court in 1985 indicates "lip service" to the duty to investigate while the judgments in the five cases reflect no steps or compliance of law and "haste to scuttle prosecutions and close trials".
The bench noted that trial in these cases were concluded within three to four months and the final outcome was acquittal of the accused of all the charges.

It said no effort was made to trace either the bodies or the stolen materials and no statement of eyewitnesses was recorded.
"To say the least, the bare notions of investigation do not seem to have been carried out before the challan (charge sheet) was filed. What to say of investigation, the complaints which disclosed commission of the heinous and serious offence like murder, have not even been registered," the bench said.