Akshay Mehta in Nanavati Commission

APPOINTMENT OF JUSTICE AKSHAY MEHTA (Retd.) IN NANAVATI INQUIRY COMMISSION – CAN A PERSON BE THE JUDGE IN HIS OWN CAUSE?

-By S.H. Iyer

Advocate

Jan Sangharsh Manch, Ahmedabad

The cardinal principle of administration of justice that – a person can not be the judge in his own cause, is put to test before the Enquiry Commission headed by justice G.T. Nanavati which is probing the riot related cases of Gujarat after Godhra train carnage in the year 2002.

After the incident of burning of Sabarmati Express at Godhra on 27^th February, 2002 in which 59 innocent passengers lost their lives, the Government of Gujarat constituted a Commission of Inquiry under the Commission of Inquiry Act, to inquire into the Godhra Train Carnage and the subsequent riots that had taken place in Gujarat after 27-2-2002. Initially justice K.G. Shah, a retired Judge of Gujarat High Court was appointed by the Government of Gujarat as a sole member of the Inquiry Commission, later, Justice G.T. Nanavati, a retired Supreme Court judge was appointed as the Chairman of the Commission. The terms of reference made to the commission were expanded so as to include the violent incidents of post Godhra riots and the role and conduct of the ministers including the Chief Minister, State executives and bureaucrats, police officials, political and other organizations during the riots.

The Nanavati – Shah Commission carried on inquiry ever since its inception with the assistance of the lawyers representing the State of Gujarat, BJP, Congress, VHP and Jan Sangharsh Manch. Certain other organizations also participated in the inquiry proceedings. Ever since its appointment in March 2002, the Nanavati – Shah Commission examined several hundreds of witnesses which included the Railway officials, Government officials, Police officials, riot victims and the activist of several social organizations.

Justice K.G. Shah, who was a member of the commission for the last 6 years, passed away on 23-3-2008. To fill up the vacancy that had arisen in the commission due to unfortunate demise of justice K.G. Shah, the Jan Sangharsh Manch by its letter dtd. 25-3-2008 suggested the names of five judges for consideration of the government for appointment of any of them to fill up the vacancy. The names of the retired judges suggested by JSM were (1) Justice M.R. Calla (2) Justice R.C. Mankad (3) Justice N.N. Mathur (4) Justice R.A Mehta and (5) Justice A.P. Rawani. The Government of Gujarat, however, did not consider any of the names suggested by Jan Sangharsh Manch and instead straight away made appointment of Justice Akshay Mehta, a retired judge of Gujarat High Court. The appointment of the Justice Akshay Mehta as a member of the Inquiry Commission has been opposed by Jan Sangharsh Manch on the principle that “a person cannot be the judge in his own cause”.

There are serious allegations against Justice Akshay Mehta with regard to grant of bail to the accused persons involved in murderous crime during riots particularly the cases of Naroda Patia, Naroda village etc. On 25^th October 2007 two television channels viz. `AAJ TAK’ and `Head Lines Today’ had telecast a program under the title of “Operation Kalank”. The program was based on the sting operation carried out by Tehalka which had published the full transcript of the dialogue between its correspondent and various persons involved in post Godhra riots. The dialogues contained very serious statements made by the prime accused of the Naroda Patia case namely Babu Bajrangi, an active member of Bajrang Dal and Vishwa Hindu Parishad declaring that as a sitting judge of the Gujarat High Court, Justice Akshay Mehta had granted him bail at the behest of the Chief Minister Shri Narendra Modi without even opening the file when the other judges had refused to grant him bail in the earlier hearing. The dialogue between the correspondent of Tehalka and Babu Bajrangi was published by Tehalka Magazine in its issue dtd. 3^rd November 2007 (Saturday) Vol-4, Issue-43 on Page No. 51. The relevant portion of the statement made by Babu Bajrangi published in Tehalka magazine reads as under:

Bajrangi : “Narendrabhai got me out of jail… He kept on changing judges… He set it up so as to ensure my release, otherwise I wouldn’t have been out yet.. The first judge was one Dholakiaji.. He said Babu Bajrangi should be hanged – not once, but four-five times, and he flung the file aside… Then came another who stopped just short of saying I should be hanged.. Then there was a third one.. By then, four-and-a-half months had elapsed in jail, then Narendrabhai sent me a message… saying he would find a way out.. Next he posted a judge named Akshay Mehta.. He never even looked at the file or anything.. He just said [bail was] granted.. And we were all out.. We were free .. For this, I believe in God.. We are ready to die for Hindutva..”

Without expressing any opinion on the correctness or otherwise of the allegation made by the accused Babu Bajrangi, on simple reading of conversation, it appears from his statement that he was denied bail by the earlier judges in view of the serious nature of the offences committed by him. He has quoted Justice R.P. Dholakia who according to Bajrangi had not only denied him bail but was of the view that the offence committed by Bajrangi was so grave that he should be hanged, not once or twice but four to five times. Finally after for and a half month the matter came before Justice Mehta who granted him bail without even looking at the file. According to the allegation made by Babu Bajrangi, it was the Chief Minister Shri Narendra Modi at whose behest the sitting of the judges of the High Court of Gujarat was changed and Justice Akshay Mehta was assigned the cases of bail and this is how Bajrangi got bail from High Court.

The Video recording of the `Operation Kalank’ telecast by AAJ TAK news channel on 25-10-2007 was placed by the Government of Gujarat before the Nanavati Inquiry Commission on 29-10-2007 vide Application Exh. No. 5991 which reads as under:

BEFORE THE HON’BLE MR. JUSTICE G.T. NANAVATI

AND MR. JUSTICE K.G. SHAH COMMISSION OF INQUIRY

AT SHAHIBAUGH, AHMEDABAD

Production of the VCD of the Transmission of “Operation Kalank” Telecasted on “AAJ TAK” News Channel between 18:59 to 20:45 (Part-I) and 20:45 to 1:05 hours (Part-II) on 25^th October 2007.

MAY IT PLEASE YOUR LORDSHIPS:

On behalf of the State Government of Gujarat it is humbly submitted that:

1. On 25-10-2007 AAJ TAK, a News Channel in its transmission telecasted under the caption “Operation Kalank” that came to be telecasted between 18:59 to 1:05 hours, wherein under the purported Sting operation, certain audio and visual transmission came to be made. The same has been recorded in two VCDs viz. transmission from 18:59 to 20:45 (Part-I) and transmission from 20:45 to 1:05 hours (Part-II), which is produced before this Hon’ble Commission.

1. It is stated and submitted that the Government of Gujarat in exercise of powers conferred under Sec.6 of the Commission of inquiry Act, has appointed this Hon’ble Commission to inquire into the terms of reference of appointment, having further extended the said terms of reference vide further notification dated 20^th July 2004.

1. It is stated that the issue of which reference is made in the said two VCDs produced herewith before this Hon’ble Commission being directly the subject-matter covered under the terms of reference, that it is desired requisite that the same be produced, brought on record and to the notice of this Hon’ble Commission and hence this application for production.

1. In view of what is stated hereinabove, the two VCDs containing the transmission telecasted on 25-10-2007 by AAJ TAK, a News Channel in its transmission telecasted under the caption “Operation Kalank” viz., transmission from 18:59 to 20:45 (Part-I) and transmission from 20:45 to 1:05 hours (Part-II) are hereby produced and the same be taken on record.

Place: Ahmedabad ________________

Date: 29-10-2007 (T.S. Nanavati-

Counsel – Government of Gujarat

The aforesaid application along with CD containing the Video recording “Operation Kalank” has been taken on record of by the Inquiry Commission. Thus, it is the Government’s own case that the contents of the two VCDs of Operation Kalank are the subject matter covered in the terms of reference and forming part of the reference of enquiry made to the Commission and therefore the Commission should also enquire into the contents of the said VCDs. Apart from many other things, the VCDs also contain the dialogue between the correspondent of Tehlka and Babu Bajrangi who is said to have alleged that he has been granted bail by Justice Akshay Mehta at the behest of the Chief Minister. Therefore, now this aspect i.e. the conduct of Justice Akshay Mehta and the circumstances, in which he granted bail to Babu Bajrangi, is also the subject matter of enquiry by Nanavati Commission according to the Government’s own representation. In this view of the matter, the moot question is – is fair on the part of government to appoint Justice Akshay Mehta as a member of the Commission after the death of Justice K.G. Shah? Secondly, is it fair on the part of Justice Akshay Mehta to accept the appointment? As a member of Enquiry Commission, can Justice Akshay Mehta enquiry into his own conduct while granting bail to Babu Bajrangi?

The Jan Sangharsh Manch vide its application dtd. 29-10-2007 placed on record of the Commission the Tehalka Magazine dtd. 3^rd November 2007, and demanded inquiry into the serious allegations made by Shri Arvind Pandya, the advocate appearing for the State of Gujarat before Inquiry Commission. Thus the aforesaid magazine is also under scrutiny of the Inquiry Commission. The two VCDs containing the program operation Kalank were produced before the Commission by the Government and the Tehlka magazine containing the aforesaid statement of Babu Bajrangi was placed before Commission by Jan Sangharsh Manch. The Commission is expected to enquire into both, the VCDs and the Tehlka magazine impartially. With inclusion of Justice Akshay Mehta, how far the enquiry would be impartial is anybody’s guess.

It is not in dispute that the bail application moved by Babu Bajrangi was not entertained by several judges who were of the opinion that no bail can be granted to the accused involved in such serious crimes. One judge has gone to the extent saying that the accused must be hanged four to five times. It was however, Justice Akshay Mehta who by order dtd. 19-10-2002 granted bail without assigning any reason and merely on condition of executing bond of only Rs. 10000/-. The order passed by Justice Akshay Mehta in Criminal Misc. Application No. 6529 reads as under:

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No 6529 of 2002

————————————————————–
BABUBHAI @ BABU BAJRANGI S/O RAJABHAI PATEL
versus
STATE OF GUJARAT
————————————————————–

Appearance:

1. Criminal Misc. Application No. 6529 of 2002
MR ABHAYKUMAR P SHAH for Petitioner No. 1-3
MR KC SHAH, APP for Respondent No. 1

————————————————————–

CORAM : MR.JUSTICE AKSHAY H.MEHTA
Date of Order: 19/10/2002
ORAL ORDER

Rule. Mr. K.C.Shah, Addl. Public Prosecutor
waives the service of Rule on behalf of State.

2. The parties do not press for reasoned order. Considering the submissions made on behalf of the parties and having regard to the facts and circumstances of the case, the application is allowed and the applicants are ordered to be released on bail in connection with Crime Register No. I – 100 of 2002 registered at Naroda Police Station, Ahmedabad, for the offence alleged against them in this application on their executing bond of Rs.10,000/= (Rupees Ten Thousand only) each with one solvent surety of the like amount each to the satisfaction of the lower Court and subject to the conditions that they shall,

a) not take undue advantage of their liberty or abuse their liberty;

b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner;

c) maintain law and order and should co- operate the investigating officers;

d) not act in a manner injurious to the interest of the prosecution;

e) not leave the local limits of State of Gujarat without the prior permission of the concerned Sessions Judge.

f) mark presence before the Sardarnagar Police Station once in a month – on any day between 1^st and 5th day of every month, till the commencement of the trial, between 9.00 a.m. to 2.00 p.m.

g) furnish the address of his residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

h) not enter into the area of Naroda Police Station till the commencement of the trial;

i) surrender their Passports, if any, to the lower court within a week;



3. If breach of any of the above conditions is committed, the concerned Sessions Judge will be free to issue warrant or take appropriate action in the matter.

4. Bail before the lower Court having jurisdiction to try the case. It would be opened to the trial court concerned to give time to furnish the solvency certificate if prayed for.

5. Rule is made absolute. Direct service is permitted.

[ AKSHAY H. MEHTA, J. ]

The Manch has found on enquiry that Justice Mehta indeed grant bail to Babu Bajrangi by his order dtd. 19-10-2002. The order does not disclose any reason for granting bail to the prime accused of the most heinous crime in the history of Gujarat and the bail was granted on execution of bond of Rs. 10000/- with one solvent surety of the like amount. It may note that the Supreme Court insists that the reasons must be given for granting bail.

The Jan Sangharsh Manch has been consistently assisting the Inquiry Commission ever since its appointment for the reason that the Manch considered the inquiry carried out by the Commission was of great national importance and therefore, the sanctity of the Commission ought to be maintained all the time. The success of the Commission was entirely depending on the faith and confidence reposed by the people at large and therefore according to the Jan Sangharsh Manch, the members of the Commission must be beyond all controversies..

With this objective in view, the Jan Sangharsh Manch has objected the appointment of Justice Akshay Mehta as member of the Commission specially since the allegations contained, in the Operation Kalank had been placed on record by the Government itself before the commission and the same is under scrutiny of the Commission. Under these circumstances therefore Justice Mehta, in respect of whom serious allegations have been made regarding grant of bail to the accused Babu Bajrangi, it would be most inappropriate that the same Judge would be enquiring into the allegations leveled against him as well as the events of Naroda Patiya. Needless to say that it would be absolutely against the principle of natural justice which says “No person shall become a judge in his own cause.”

In the aforesaid circumstances, the Jan Sangharsh Manch feels it necessary to state that it has made no personal allegations against Justice Akshay Mehta nor its objection is directed against Shri Mehta on personal ground.

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