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Graham Staines case: Supreme Court violates Rules of ‘Review’

Author: Ashok Sahu
Publication: Vijayvaani.com
Date: February 3, 2011
URL:      http://www.vijayvaani.com/ArticleDisplay.aspx?aid=1611

The Graham Staines murder case stunned the world, and was perhaps one of the most discussed and distorted incidents reported in the annals of legal battles. We have heard of media trials often, but in this instance there was media judgment before investigation and trial were initiated and the accused persons identified by legally authorised agencies. Then, after the final verdict was pronounced, media diktat resulted in its abrupt suo moto revision (see The Hindu 23 Jan. 2011).

After the murder, one Rabindra Kumar Pal (alias Dara Singh), a village teacher from Uttar Pradesh, teaching Hindi to tribes in the area, was demonized by the media and within days his photographs were displayed everywhere, forcing the ‘wanted’ man to hide in jungles on account of an award of Rs. 10 lakhs declared on his head.

Dara Singh was never convicted of any crime previously. After the murder of Staines and his two sons was reported, a sitting judge of the Supreme Court was constituted into a one-man Enquiry Commission (Justice D.P. Wadhwa Enquiry Commission) to enquire into and find out if any organization was involved in the incident, because the victims were foreign missionaries and the area was agog with anti-conversion reaction prior to that occurrence.

Graham Staines was an Australian missionary based at Baripada, headquarters of Mayurbhanj district, since 1965. He and his two sons were killed while sleeping in his station wagon during a ‘Jungle Camp’ at Manoharpur village, Keonjhar district, on midnight of 22-23 Jan. 1999. He was associated with the Evangelical Missionary Society of Mayurbhanj (EMSM) since 1967 and took over the running of the Mission at Baripada in 1983.

While ostensibly looking after a Leprosy Home at Baripada, he engaged in trying to convert the tribes in the districts of Keonjhar, Sundargarh and Mayurbhanj to Christianity. According to Census 1961, the Christian population of Sundargarh, Keonjhar and Mayurbhanj was respectively 106300, 802 and 870; it jumped to 308476, 6144 and 9120 in Census 2001.

Thus between 1961 and 2001, while the Hindu population in the area barely doubled, the Christian population increased 3-10 times in these three tribal districts. As tribes comprised over 50% of the population in these three districts, the tribal poor were targeted for conversion by Staines under the cloak of teaching Gospels and holding ‘Jungle Camps’, a phrase coined by Staines himself to cover his clandestine activity of proselytization.

There was large scale resentment among the Hindu tribal population who were disturbed by ‘jungle camps’ during Makar Sankranti in mid-January every year. In 1999, on 20 Jan., Graham Staines, his two minor sons, one Gilbert Venzo (an Australian), two other friends and four servants and drivers came to Manoharpur village. They showed movies about Jesus Christ by connecting a projector to the batteries of the station wagon as there is no electricity in the village or petrol pump within 50 kms. radius of the village.

Staines used to carry extra fuel to support the engine for screening the films and the return journey. As per statements of persons accompanying him, he used to cook and sleep inside his vehicle with straw on top to protect against the biting cold. During Dec-Jan., the night temperature is normally 4 to 2 degree Centigrade in the area. That fateful night also, straw was put on top of the vehicles and after dinner they retired. While thus sleeping, the station wagon caught fire and all inmates were charred to death.   

The incident was extremely unfortunate, whether accident or conspiracy. But there is no credible eye witness to establish that the fire emanated from outside and burnt the vehicle and inmates. Available evidences at the place of occurrence and forensic analysis of materials available from the spot indicate that the fire could have emanated from within and later spread outside, as a result of which the rear portion of the station wagon was more damaged than the front portion. The Church in front of which the vehicles were parked was intact.

If people displeased with the missionary had caused the harm, they could have also set the church on fire. The second vehicle which contained the extra diesel jerry cans was also gutted, and the fuel in the tanks of both vehicles empty, so intense was the fire. The forensic report mentions that the agent of fire was either kerosene or diesel, which enhanced the intensity of the fire to about 70000 C and melted even the aluminum roofs and glass windows.

At about 3 a.m. people saw the vehicles completely gutted, the inmates charred to death. Rolia Soren, a resident of Manoharpur and ex-pastor of the Church, gave an oral report (made an FIR later) mentioning many persons of the locality, but none of those named was charge-sheeted by the prosecution. In the FIR, Soren suspected Dara Singh, but failed to identify him during his deposition in the trial court.

Initially, 50/60 Hindu activists were rounded up as they were known to oppose the ‘harvesting souls’ of poor and illiterate tribes. The investigation was taken over by the State CID which released all the arrested. Later the matter was handed over to the CBI.

Between 3 May 1999 and 14 June 1999, CBI changed its investigating officers four times in barely one month of investigation! Prosecution witnesses, who were not coming forward to speak to any top officials camping in the area, started pouring in once the new Investigating Officer took over on 10 May 1999; the case was charge-sheeted on 22 June 1999.

Accused persons under arrest were made to confess under section 164 Cr.P.C. while in CBI custody and sent back to CBI custody after recording statements. The trial court examined 55 witnesses supporting the prosecution case; 25 witnesses deposed in support of 18 accused persons. On 22 Sept. 2003, the trial court awarded death penalty to the main accused and life imprisonment to 12 others; the rest were acquitted for want of proof.

On appeal before the High Court, Dara Singh’s death penalty was reduced to life imprisonment; life imprisonment was confirmed on Mahendra Hembram and the other 11 accused were acquitted (order dated 19 May 2005). The CBI appealed before the Supreme Court challenging the High Court order and prayed to restore the trial court sentences on all accused persons; main accused Dara Singh and accomplice Mahendra Hembram appealed against the High Court judgment and pleaded for acquittal as innocent.

The Hon’ble Supreme Court did not accept the plea of the Addl. Solicitor General to restore death penalty against main accused Dara Singh as it is not a ‘rarest of rare case’ as in cases where there is no direct evidence, the sentence of life imprisonment is adequate to meet the ends of justice. The Court relied on its earlier judgments in Bachan Singh vs. State of Punjab (AIR 1980 SC 898), Machhi Singh vs. State of Punjab (1983) 3 SCC 470, Kehar  Singh vs. State (Delhi Administration) (1988) 3 SCC 309, and held in its judgment dated 21 Jan. 2011,

-  “It is clear from the above decisions that on conviction under Section 302 IPC, the normal rule is to award punishment of life imprisonment and the punishment of death should be resorted to only for the rarest of rare cases. Whether a case falls within the rarest of rare case or not, has to be examined with reference to the facts and circumstances of each case and the Court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity.”

As there was a clear background of resentment due to large scale conversion of poor tribes in Staines’ area of operation, and the prosecution had rounded up those who opposed to such conversion spree, the Hon’ble Court, quoting Mahatma Gandhi and former President of India K.R. Narayanan, emphasized the need for religious tolerance by mutual respect for each others’ faith: “It is undisputed that there is no justification for interfering in someone’s belief by way of use of force, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other.”

This historic judgment received wide media coverage. Many Hindus felt that the materials on which 11 persons were acquitted could have been extended to the other two accused whose conviction was upheld by the Court. Many Christians expressed religious intolerance by criticizing the Court’s verdict. The Hindu, 23 Jan. 2011, carried a news item advocating expunction of certain remarks of the Court, claiming to represent the views of editors of leading newspapers and civil society leaders.

But should Supreme Court react to media comments in the absence of any petition supported by an affidavit before it praying for expunction or ‘review’? The Hon’ble court has validated the concept of ‘media trial,’ a dangerous trend we have already witnessed in cases like the Gujarat riots of 2002, where the apex court took up a blank affidavit of the now controversial Teesta Setalvad, forwarded by the National Human Rights Commission, and transferred all cases out of Gujarat!

Instead of feeling accountable to media moghuls, the highest court was expected to protect established procedures. Once a judgment is delivered in open Court, it becomes functus officio and ceases to change its views except to correct minor errors, a clear injunction under Rule 3 of Order XIII of the Supreme Court Rules, 1966:

- “Subject to the provision contained in Order XL of these Rules, a judgment pronounced by the Court or by a majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission.”

Order XL is the power of ‘Review’ of its own decision only on the basis of a petition by the aggrieved party to the case. The Court has held in an earlier decision that “Power of review is not an inherent power and must be conferred on a Court by a specific or express provision to that effect” {(1971) 3 SCC 844}.

In another landmark decision the Supreme Court held that “Any passage from an order or judgment may be expunged or directed to be expunged subject to satisfying the following tests :-

(i) that the passage complained of is wholly irrelevant and unjustifiable;

(ii) that its retention on the records will cause serious harm to the persons to whom it refers;

(iii) that its expunction will not affect the reasons for the judgment or the order.” {(2001) 3 SCC 54}.

But for effecting expunction, there must first be a petition before the Court. 

But in the Staines murder case, the Supreme Court, after pronouncing final judgment on 21 Jan. 2011, listed the matter again for direction in the supplementary cause list circulated the previous evening, without any notice to the lawyers of the accused or counsels for the prosecution. There was neither any petition by the CBI nor by the defense lawyer.

Obviously, this occasioned surprise and was keenly watched on 25 Jan. when the matter was listed for direction. The Court expunged one complete sentence at Para 43, that suggested the intention behind the crime, and added at its place, “However, more than 12 years has lapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced in view of the factual position discussed in the earlier paragraphs”.

At Para 47, the sentence regarding interference in someone’s belief by way of ‘use of force’, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other, has been replaced by ‘any means’. Expunction of the portion in the judgment pertaining to normal procedures adopted by religious groups for conversion has virtually diluted the observation of the Hon’ble Court. Has it been done in response to the news item in The Hindu advocating expunction on behalf of ‘civil society’, which item the newspaper ‘withdrew’ the next day as incorrect? Without any petition supported by an affidavit could the Court entertain such alterations and additions in a pronounced judgment?

The Court while resorting to such major alterations and additions preferred not to disclose the compulsions which dictated resort to such an abrupt measure which has no sanction of law. Such unexplained conduct of the apex court causes public anxiety. The judiciary seems to have buckled under pressure from extraneous and extra-constitutional entities. It presages a serious threat to Indian democracy where, in the name of ‘open society’, Courts are showing deference to foreign powers undermining national self-esteem and sovereign dignity. Let us not forget that the powers of the judiciary emanate from the Constitution as also from the trust it enjoys among the citizenry.

The Judiciary is the last hope of the people to protect democracy and rule of law. Betrayal would lead to anarchy. The nation must remain vigilant to protect freedom and rule of law. Even the judiciary is accountable to the law and ultimately to the people, who are sovereign in our system of limited government.   

- The author is a senior police officer (retd); his mail is ashoksahu53@yahoo.com
 
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