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1984 Anti-Sikh Riots – Delhi HC Upholds Conviction And Punishment Of Over  80 Rioters

                                              First and foremost, the latest landmark and laudable judgment delivered by the Delhi High Court in Shambhir & Ors v State in CRLA 152/1996 along with others on 28 November, 2018 upholding the conviction and punishment of over 80 rioters has brought some solace to all those affected people who lost their near and dear ones in the ghastly 1984 anti-Sikh riots which brought disrepute to our country and alienated many Sikhs from the national mainstream! Delhi High Court by this latest, landmark and laudable judgment has sent a loud, clear and convincing message to all that, “Nobody can be above the law and those who commit crime are bound to be punished sooner or later”! There can be no denying it!

                                    As it turned out, Justice RK Gauba of Delhi High Court who delivered this landmark judgment notes right in para 1: “That the criminal justice administration may falter or crumble, or lose its potency, is no longer a distant doomsday scenario. It appears to have arrived and stares at us in the face. The question as to whether the guilt of the appellants for complicity in rioting and mischief by fire was correctly concluded or not has come up for determination thirty-four years after the crimes were committed and twenty-two years after the trial court had rendered its decision. The whole exercise is reduced to the level of academic.”

                                                    Elaborating on the riots and its background, it is then pointed out in para 2 that, “On 31.10.1984, Mrs Indira Gandhi, the then Prime Minister of India was assassinated by her bodyguards. Riots broke out on the same day in the capital city of Delhi and other parts of the country which, in no time, turned communal, they being directed against the Sikh community. Carnage followed for several days in which thousands suffered physical harm or damage to the property. A large number perished. Semblance of law and order returned, albeit after several days, in the wake of the armed forces being called in aid of the civil administration.”

                                         To be sure, while lambasting the utter failure of the police and the civil authorities in failing to rise to the occasion, it is then noted in para 3 that, “The failure of the police, and the civil authorities, in controlling the situation, or meeting the challenge, by enforcing the law has been chronicled not only in the media reports but also found to be a fact in decisions of the courts of law, in various cases brought at almost each level of the judicial hierarchy, as indeed recorded in the reports of numerous Commissions of inquiry or Committees that were set up in the decades that have followed. The circumstances that prevailed during riots are the harsh reality of which judicial notice may be taken.”

                     No doubt, it is rightly conceded in para 4 of this landmark judgment that, “The anti-Sikh riots of 1984 are indeed a dark chapter in the history of independent India which , it is often said, this country must put behind so as to move ahead. But, for those who suffered personal loss in the form of killings of their near and dear ones, or destruction of their homes, there possibly can never be a closure. The theories of politico-criminal nexus, aided and assisted by police or civil service officials loyal to the cause, being behind the mayhem that was wrecked, virtually with impunity or immunity, continue to abound and haunt. There is also a contrarian view that such dark chapters in the history of the land must never get effaced from memory since they confront us, the civil society at large, by showing a mirror, to expose to us the rot that lies within.”

                                    Truth be told, it is also then rightly conceded while outlining its own priorities in para 5 that, “The communal riots of the likes of 1984 have been erupting time and again, as a scourge, in free India, starting with the partition riots of 1947, more often than not, fanned by socio-political leadership. Many such communal riots have preceded, or followed, those of 1984, each leaving behind numerous cases of mass murders, arson, loot, plunder, et al. In the present context, the court is not concerned with what were the causes for failure of administration or of law and order or, to go further, what reforms are required to ensure that such break-down of administrative machinery, or rule of law, does not recur. The court is concerned more with the enforcement of criminal law in the wake of such serious crimes as were committed in the name of protests taking the ugly shape of communal riots.”

                                          Truly speaking, it is para 6 which actually sets the ball rolling by dwelling on the background of the case and pointing out that, “These twenty-three criminal appeals arise out of the decision of a court of Sessions in a case (sessions case 34/95) relating to rioting accompanied by commission of serious offences in the afternoon of 02.11.1984 in Block no. 32 of a locality known as Trilok Puri, within the territorial jurisdiction of police station Kalyan Puri, Delhi, it being subject matter of investigation through first information report (FIR) no. 426/1984 of the said police station. This case is one of the several cases that were registered around that period, the grievances of the victim community, and the civil society at large, consistently being that there was utter failure on the part of the police in not only controlling the situation but also in bringing the perpetrators of the crime to justice. Allegations have been made generally and with reference to various other cases registered during the said period, they also being echoed in the context of the present case, that the police officials entrusted with the responsibility of taking follow-up action under the criminal law, instead of discharging their obligations, turned their gaze the other way or made endeavour to ensure that those guilty could either escape or even if brought to trial, could avoid their guilt being proved.”

                                      Going forward, para 7 then candidly points out that, “Having heard the defence, and the prosecution, in these appeals and having subjected the trial court record to acute scrutiny, this court finds the grievance as to apathy on the part of agencies connected to the criminal law towards such cases to be correct and well founded. In the considered view of this court, it is not only the police that failed in not (promptly) registering the crimes or collecting all possible or requisite evidence (before it was lost forever) but the other agencies including prosecution, and the court, that also failed to rise to the occasion or live up to the task.”   

                                     Bluntly put, para 8 then brings out that, “As would be noticed in the later part of the judgment, the manner in which the case was handled, or lingered, at the stage of committal proceedings before the Magistrate, was designed to ensure the case would not proceed with the promptitude it deserved. The case resulting from the first final report under Section 173 of the Code of Criminal Procedure, 1973 (“the charge-sheet”) which was placed before the court of the Metropolitan Magistrate (on 20.12.1985), followed by several supplementary reports, saw the committal order being passed only on 18.04.1987. The court of Sessions where the case was allocated had doubts as to the permissibility of joint trial of one hundred and seven (107) persons who had been brought before it under the umbrella of one case. It passed certain orders requiring the cases to be split up. The supplementary charge-sheets in the wake of such directions followed, with no-one interested in expedition. Eventually, the case was put to trial by order dated 04.12.1995 framing charges against ninety three (93) accused whose presence had been secured, this being followed by a similar subsequent order respecting one more who was compelled to appear with great difficulty.”

                                  For the sake of brevity, let us now come directly to para 107. It aptly says that, “At the cost of repetition, one may say again that the areas from which the appellants were apprehended were one of the worst affected in the riots. Almost all houses in the vicinity had been subjected to arson. The household articles of such riot-affected homes were found scattered on public roads and in lanes. A large number of motor vehicles were found abandoned on roads they having been set on fire. The properties which were damaged by fire included religious places, shops or hutments. Even while the local police – which included PW-5, PW-7 and PW-8 – assisted by reinforcements (later joined by paramilitary forces) were trying to bring the situation under control, the riotous mob was moving almost with impunity. The evidence has shown unmistakably that curfew and prohibitory orders had already been promulgated. After such prohibitory orders had come into force, no public person was entitled to be outside his home, not the least so as to be a part of rioters unlawful assembly. If a public person was found to be outside his home in such circumstances, onus would be on him to explain or justify the reasons for his presence at such a place.”

                     Needless to say, para 108 then points out that, “As noted above, the evidence has clearly brought home the case for prosecution that the appellants were outside – part of the mobs which were rioting. They having come up with no reason or explanation for such presence at such place at such point of time, their guilt for disobedience of prohibitory order lawfully promulgated by the Commissioner of Police within the mischief of penal provision contained in Section 188 IPC has been proved.”

                          While craving for the exclusive indulgence of esteemed readers, it must be informed here that para 109 then states that, “As concluded above, the presence of the appellants amongst the rioters mob has been proved. They have not come with any explanation for such presence. It cannot be assumed, without such plea being taken, that they were idle spectators. The object of unlawful assembly having come to their knowledge their continued presence renders them party to its common object. The said assembly having indulged in setting houses on fire pursuant to such common object, charge of rioting has also been proved. Using inflammable materials (deadly weapons) to set houses on fire amounted to offence under Section 148 IPC for which charge had been framed. But, for reasons which are not clear the trial Judge has returned conviction only under Section 147 IPC. There being no appeal by the State, this court feels it would not be proper to convert the conviction for one under Section 147 to Section 148 IPC at this stage.”

                        For esteemed readers exclusive indulgence, it must also be informed here that without mincing any words, it is then observed in para 110 that, “With riots of such magnitude being underway, it called for no imagination for a member of such unlawful assembly to know that its object was to commit offences, such offences clearly including damaging the houses by setting them on fire. It is not a case where a person who was member of the unlawful assembly could not imagine as to what offences were “likely” to be committed. The offence of mischief by fire was being indulged in from house to house, from one locality to the other, in clear view of everyone who was present at the scene. Given the brazen manner in which arson was being committed, awareness that mischief by fire would be the probable and natural result of the acts intended to be committed has to be imputed to each members of the unlawful assembly. In these circumstances, knowledge about the object of the unlawful assembly will have to be imputed to everyone including the appellants who were part of the riotous mob.”

                                Simply put, para 111 then drives home the point that, “Since the evidence unmistakably shows that the appellants were members of the unlawful assembly, the common object whereof was to commit offences that included offences of mischief by fire, having regard to the magnitude of the damage that was openly caused to a large number of houses of Sikhs in the concerned area of Trilok Puri, there was no need for the prosecution to prove any overt act on the part of any of them. Non-recovery of the weapon of such offence is of no consequence. As has been explained by the witnesses, the appellants were apprehended after pursuit and it was highly unlikely that they would continue wielding the weapons (inflammable materials) in their hands till being over-powered. Their accountability for offence under Section 436 IPC is brought home by the rule of vicarious criminal liability under Section 149 IPC.”

                                   Of course, it is then observed in para 112 that, “The trial Judge, while framing charge, had taken care to invoke the penal clause of Section 149 IPC with the offence under Section 436 IPC. It does appear that in the final determination, while convicting the appellants also under Section 436 IPC, reference to Section 149 IPC came to be omitted. This appears to be an inadvertent lapse. It cannot, however, detract from the tone and tenor of the judgment of the trial court that the conviction of these appellants for offence under Section 436 IPC has been recorded with the aid and assistance of Section 149 IPC.” Para 113 envisages that, “On the foregoing facts, and in the circumstances, the judgment of the trial court returning finding of guilty convicting the appellants must be upheld. Ordered accordingly.”

                             It would be pertinent to mention here that Justice RK Gauba of Delhi High Court who delivered this landmark judgment then took the strong view that this case merited much more severe punishment than was actually awarded by the trial court but desisted from doing so as there was no appeal with such prayer to enhance the sentence. Justice Gauba pulled back no punches in making a scathing attack on the leniency displayed in awarding punishment and observed in para 114 that, “Though, having regard to the extensive damage that was caused by the appellants to a large number of houses or other properties of Sikh community by fire, the case merited punishment more severe than the one meted out by the trial court, given the fact that there is no appeal seeking enhancement of the punishment, the trial court having taken a lenient view, there is no occasion for this court to modify the order on sentence either way.”

                                    Having said this, para 115 then sums up by saying that, “The appeals are thus dismissed. The bail bonds of the appellants are cancelled. They are directed to forthwith surrender to undergo the punishment awarded against them. The trial court is directed to take all necessary measures, including issuance of requisite processes to ensure due enforcement and execution of the sentences in accordance with law. The Commissioner of Police and officers or agencies under his control shall render all assistance to the trial court in this day.” Para 116 then directs that, “For compliance, copies of the judgment shall be sent to all concerned by the registery.”

                                        It cannot be lost on us that it is then observed in para 117 that, “Before parting, however, this court deems it necessary and proper to make certain further observations on two particular aspects – one concern stemming from reasons to believe that certain part of the facts noted or gathered by the investigating agency in the wake of FIR No. 426/1984 of Police Station Kalyanpuri may have remained uncovered; the second respecting the inadequacy of the criminal law procedure to deal with crimes of such magnitude and the utmost need for reforms in this regard to be ushered in.” Para 120 says that, “In the foregoing facts and circumstances, this Court directs the Commissioner of Police, Delhi to have the material, and the evidence, in above nature, re-examined by an appropriate agency for such further action under the criminal law as may be requisite.” Para 121 further says that, “A copy of this judgment with specific reference to the above direction shall be additionally sent to the Commissioner of Police.”

                                   More crucially, it is then observed in para 122 that, “The case at hand, as observed elsewhere in this judgment, may be treated as a paradigm which ought not to be followed in cases of such nature. The law and order machinery had broken down. The police forces, and the civil administration, did not take timely or effective action to prevent the riotous conditions from spiraling out of hand.  The criminal law process began, but hesitatingly and belatedly. The fact that these cases have continued to linger in the courts at the stage of trial or appeals or revisions till date itself is an indicator of the reality that the response of the law has been tardy, ineffective and highly unsatisfactory.”

                                           Furthermore, it is then lamented in para 123 that, “In the wake of case FIR No. 426/1984, one hundred and seven persons had been apprehended. The local police did not have the capacity to even keep them in proper custody as a large number of arrestees were kept overnight in the verandah or courtyard of the police station. The remand proceedings before the magistrate were conducted with the accused persons being confined in vehicles stationed outside the court complex. Such difficulties during the period of riots may have been for reasons beyond the control of everyone. But, when the charge sheets had been filed, the committal court did not have the capacity, or the wherewithal, to conduct the proceedings. As is reflected by the record of the trial court, the proceedings post committal of the cases were also difficult to handle. The trial Judge was at a loss as to how to make a head count on each date of hearing. Taking of attendance of such large number of accused itself was not only time consuming but also unwieldy.”

                                     More worryingly, it is then observed in para 124 that, “The criminal procedure, as applies generally, mandates that the proceedings take place in the presence of the accused. This fair justice principle of law is abused, more often than not, to cause delay. The truancy is often seen being used as a tool to get the trial process postponed. In cases of such nature as at hand wherein accused persons sent up for trial were in such large number, it is easy to use the device of truancy. On each date of hearing, some or other accused would remain absent leading to deferment. The whole process consequently gets reduced to a mockery. The result obviously is what the pace of progress in the present case has demonstrated.”

                               Now coming to para 125, it is forthright in pointing out that, “On the criminal prosecution initiated through the charge sheets which had been submitted in December 1985, the question of charge could not come up for consideration till December 1995. The trial Judge, when he set about the task of consideration for framing of charge, found, upon the prosecution itself advising him to this effect, that the case as presented ten years earlier suffered from the defect of mis-joinder (of charges and accused). The charges were eventually framed, after splitting up of the cases, in January 1996. Clearly, the investigating agency, and the prosecution agency had no coordination between themselves. The fact that the initial two charge sheets presented in December, 1985 were prepared, also under the advice of the prosecution branch, shows that the quality of the legal assistance availed of by the State was questionable.”

                                           Honestly speaking, para 126 then acknowledges that, “As mentioned elsewhere in this judgment, the spectre of communal riots has been raising its ugly head in various parts of the country at regular intervals and from time to time. The general criminal law is provenly ill-equipped to deal with the challenge of such crimes of mammoth proportion, particularly when they invariably are perceived to be engineered by those holding control over certain power centers.”

                          It is then underscored in para 127 that, “At the cost of repetition, it needs to be noted again that after each event of communal riots, allegations of political influences having worked as the root cause or for protection of those responsible have surfaced. There perhaps can be no two opinions about the fact that a sense of neutrality in the investigative and prosecution process has to be injected. And towards this end, the possibility of entrusting such tasks to authorities other than normal agencies of the State needs to be explored.”

                            It is then brought out in para 128 that, “Quite often, in cases affecting large sections of society through crimes committed by influential persons, the courts – High Courts or Supreme Court – have felt constrained to set up Special Investigating Teams (SITs) which carry out probe under their supervision. Since such courts are eventually called upon to subject the evidence to scrutiny and adjudicate upon the guilt, recourse to this approach may not always be desirable.”

                                       It is of immense significance to note that para 129 then observes that, “The experience also shows that after such events Commissions of Inquiry are generally set up, the purpose whereof is to gather evidence and probe the causes that led to breakdown of law and order. Such Commissions invariably are headed by retired Judges of the Supreme Court or High Courts. But the establishment of such Commissions, and commencing of work by them, takes some time. During the interregnum, however, the crucial evidence comes to be lost or destroyed. The reports of various Commissions of Inquiry also reveal that the victims or witnesses of such riots are generally petrified or silenced by intimidatory tactics and consequently feel disinclined to come forward with their complaints, or testimonies, till some measures are undertaken to afford protection to them.”

                    It would also be material to note that para 130 then stipulates that, “Pursuant to the Protection of Human Rights Act, 1993, Human Rights Commissions stand established and are in position at State and National level. Though the objective of setting up of such Human Rights Commission is a little distinct, it cannot be lost sight of that such Commissions are generally seen swinging into action without much delay in cases of communal riots. They also have the advantage of the investigative apparatus available to them at all times.”

                                 Not stopping here, it is then observed in para 131 that, “One wonders if the initial task of gathering evidence or, to put it conversely, the duty to “preserve” evidence can be entrusted to the Human Rights Commissions, in cases of communal riot situations. Once a Commission of Inquiry is instituted, under the Commission of Inquiry Act, 1952, further investigative process by gathering all evidence for such cases can be taken over by such Commissions of Inquiry. Given the non partisan and statutory status, as indeed the confidence of people at large enjoyed by these institutions, the possibility of vested interests negatively influencing the process of law would stand ruled out.”

                                  In hindsight, it is then brought out in para 132 that, “There have been initiatives taken in the past to bring in special legislation to cover the subject, this including in the form of Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 and lastly, as per the information available, Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 but the same have remained stuck at the stage of drafting. The court hopes and trusts that the legislature will consider enactment of a special law to deal with such crimes effectively at an early date. The court also hopes and trusts that as and when such special legislation is put in position, it would include provisions to arm the investigating and prosecution agencies, as indeed the criminal courts, with requisite powers, laying down special procedure and rules of evidence for fair, timely and effective dispensation of justice.”

                                          To put it succinctly, it is then observed in para 133 that, “Having regard to the experience that has been gained, including by scrutiny of the records of the present case, this court would suggest the following to be considered for inclusion in the reforms in the criminal law response to deal with such cases:-

(i)                         Suitable amendments (with necessary subordinate legislation) to the Commissions of Inquiry Act, 1952 and the Protection of Human Rights Act, 1993 may be considered to entrust the responsibility of taking note of the cognizable offences committed in communal riots and for investigation in accordance with law thereinto may be through SITs specially constituted under their respective control with further responsibility to oversee the prosecution in the wake of such investigation through Special Public Prosecutor(s) (SPP) to be engaged by them.

(ii)                      Though the Commissions referred to above would have their own investigative machinery to carry out the necessary probe in an effective manner, they might need to avail of the assistance of Legal Service Authority (LSA) for reaching out to the victims (or witnesses), and for instilling a sense of trust and confidence, coupled with such witness-protection measures as may be deemed proper for the given situation, and also of the judicial magistracy for mandatory recording of statements of such victims, or witnesses, under Section 164 Cr.P.C. at the earliest inasmuch as provisions for this would make the effort more comprehensive and effective.

(iii)                   The neutral agency of the Commissions entrusted with the added responsibility of taking such case(s) to prosecution would ensure that no charge-sheet is brought to the criminal court for taking of cognizance, or trial, unless it has been properly vetted dispassionately by those well-trained in criminal law such that it is free from any defect, inadvertent or otherwise.

(iv)                   The law on the subject of communal riots cannot be a complete answer to the challenge unless it also establishes special courts with suitable amendments to the general criminal law procedure as indeed the rule of evidence.

(v)                      Given the technological advancements that have been made and the rise of media – print and electronic – as an effective fourth pillar of the democracy, there is a strong case for utilizing as evidence the press reports, supported by photographic material or video footages put in public domain in trials of criminal cases arising out of communal riots. Such material or video coverage are generally seen to be depicting the specific role of various individuals who form part of the riotous assembly as indeed those leading or provoking such mobs. Time has come for availing of the same, may be in corroboration of oral evidence, in criminal trial process. For this, the law must mandatorily require media persons or houses to share the product of their efforts with the investigating agency in all cases of communal riots, it being also their bounden duty thereafter to prove such material at the trial.

(vi)                   As has been highlighted in this judgment, frequent absences from the court hearings on the part of accused persons has been one of the major causes for delay in the judicial process. There is no reason why general law of criminal trial being held in the presence of the accused be permitted to be abused. For purposes of trial, particularly at the stage of recording of evidence, in cases under Prevention of Corruption Act, 1988, there is an exception carved out by Section 22(c) which permits such witnesses as are in attendance to be examined even if the accused is absent subject, of course, to his right to seek recall for cross-examination once he re-appears. Similar rule of procedure in case of trial in communal cases involving large number of accused would have a salutary effect.

                                   To put things in perspective, it is then directed in para 134 that, “A copy of this judgment shall be sent by the registry also to Secretary (Law, Justice and Legislative Affairs), Government of India and to the Secretary, Law Commission of India, for their respective consideration.”

                                        Finally and most importantly, in its concluding para 135, it is then observed by Justice RK Gauba of Delhi High Court that, “There is no contest to the case for prosecution that the crimes alleged here were actually committed. Thirty four long years have passed after the crimes were committed and, yet, the victims await justice and closure. Is this what we call a potent and effective criminal justice system? Is our judicial apparatus at all equipped to deal with the crimes of such magnitude? Do we have lessons to be learnt from this sordid experiment in the name of criminal law process? It is indeed a matter of lament that there has been no meaningful thought spared till date to usher in reforms in the judicial process to effectively deal with the cases of communal riots which are engineered, more often than not, by those who have clout or influence – of various kind. The manner of prosecution of the case at hand would undoubtedly go – down in judicial history of this country as an example of criminal law process that must never be emulated. From this perspective, and in the expectation that those at the helm draw lessons from here, one hopes that this case is never forgotten.” Very rightly said!

                                    It is thus quite ineluctable that both Centre and Supreme Court must work expeditiously in unison to usher in the reforms which Justice RK Gauba of Delhi High Court has brought out so prominently in this landmark case! Justice must not only be done but also seen to be done which is possible only if cases are decided in the shortest span of time and not after many decades as we see most unfortunately in this case also! This is certainly possible if Judges ensure that no adjournments on small pretext are granted and hearings are conducted expeditiously and not after many months and years which is the root cause for cases not being decided on time! Judges must be fully determined now to work accordingly and become a true source of inspiration for all the people in the society!  

Sanjeev Sirohi, Advocate,


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