Try and imagine the Bombay high court staying the judgment in the Malegaon blast case acquitting the high profile accused who were given the benefit of doubt. Is it possible? I ask this question in the background of the decision of the National Investigation Agency not to challenge the acquittal and accept the conclusion of the trial court that the investigation was shoddy and botched up. 

As of now, the NIA believes justice has been done even though the prosecution story has not been given credence by the trial court. The accused are happy as also the investigators and the prosecution. Only the families of the victims seem to be anguished. What can such families do? They are usually short of resources, financial and human, and are effectively incapacitated from challenging the verdict. So, with no one wanting to appeal or able to appeal, we must accept that the trial court dispensed justice in the Malegaon blast case and justice has been done in spite of poor quality investigation, witnesses being dropped and vital records missing.

Contrast this with the alacrity with which the Maharashtra government challenged the acquittal in the 7/11 Bombay (now Mumbai) train blasts case. The Bombay high court acquitted all the accused on July 21 and held, “It is hard to believe that the accused committed the crime. Hence, their conviction is quashed and set aside.” Convinced that justice had not been done, the Maharashtra government rushed to the Supreme Court for a stay on the judgment. An appeal was filed, numbered and listed in the Supreme Court and on July 24, a stay granted. Amazing speed. In that case too, the investigation was not of sterling quality with forced confessions and so on.

Why have both cases been treated so differently by the same government? 

One can only guess the intention of the government. In the Bombay train blasts case, it was perhaps to ensure that the accused, who had spent more than 18 years in prison, are not released. Why? Perhaps they are not high profile and therefore not as important as a convict in Haryana who has been released on parole or furlough 14 times in the past couple of years. Fortunately for the accused, before the case could be taken up by the Supreme Court, they had walked free after their conviction was set aside and after giving a bond of Rs. 25,000 in the event an appeal is filed. Recall now the case of professor G.N. Saibaba. His conviction was set aside and he was discharged by the Bombay high court. Before he could be released, the government rushed to the Supreme Court and convinced it to stay the judgment. The court agreed and Saibaba was not released and his incarceration continued till his conviction was set aside a second time. Such is the impact of a stay of judgment in a criminal case – remain in jail even if you are acquitted.

The primary purpose of the government approaching the Supreme Court to prevent the release of the accused having been defeated, a request was made for the next option, that is, to stay the judgment so that it cannot be used as a precedent in any other case. Such a stay was granted within minutes keeping in mind an unspecified question of law. What does this mean and should such a request have been entertained and stay granted?

The impact of the bomb blasts in Mumbai was undoubtedly horrific. As many as 189 innocents died and about 800 injured. Despite the magnitude of the crime – effectively a well planned terror attack – it is unlikely that some earth-shaking question of law had arisen in the high court and been wrongly decided. The courts in India, particularly the Bombay high court, have dealt with several terror cases and the law is quite well settled. What is important is the investigation and presentation of facts. These very rarely raise a question of law that needs a decision from the court and are matters for the police and prosecution to take care of.

Judgments contain facts and legal reasoning for arriving at a particular conclusion. The conclusion results in a declaration and an order to do or not to do a certain thing. For example, when a construction is declared illegal, the consequential order is its demolition. A stay, in such a case, would prohibit the authorities from demolishing the illegal structure. The facts and the legal reasoning for arriving at the conclusion are not and cannot be stayed, but the result can. The reasoning is the thought process of the judge or judges and the reasons may ultimately be held unsustainable after full fledged submissions by lawyers but surely, such a conclusion cannot be arrived at ex parte unless the legal reasoning strikes one as simply perverse. 

Therefore, when it was known that the accused had walked free and it was certainly inadvisable (if not difficult) to send them back to prison, was there any need to stay the judgment of the high court? Was the judgment so perverse in any manner, on facts and at law, that it needed to be stayed? A reading of the over 650-page well reasoned verdict certainly does not give that impression. The facts were crisply stated and analysed by two judges of a constitutional court. Reasons were given for arriving at a particular conclusion. Whether the learned judges were right or wrong in their legal reasoning can certainly be debated and discussed. But to stay the judgment is stamping the legal reasoning of the learned judges as perverse and certainly stretching an argument too far. 

The concern of the Maharashtra government was, it appears, the impact the legal reasoning would have in other terror attack cases. The legal reasoning on an unspecified question of law would, according to the state government, have an adverse impact in other terror attack cases. How many such cases are pending in Maharashtra? In how many of them has the investigation been shoddy or sub par? What is the government doing about it? Will a stay make the investigation of sterling quality? Without any meaningful discussion, the Supreme Court directed a stay of the judgment of the Bombay high court. The stay seems to be nothing but a face saver for the government and the investigating team but it sets a precedent for other cases, like the Malegaon blast case. The stay seems to be conveying to Mumbai that the investigation in the train blasts case doesn’t appear to have been faulty, extracting a confession through torture may not have happened and in fact the so-called innocent persons who were in prison for more than 18 years may not be innocent after all because the legal reasoning of the Bombay high court is faulty. This is too sweeping a conclusion arrived at by the Supreme Court in a couple of minutes in the first hearing without the accused being represented, even if it is an interim view. It sends out a terribly wrong signal to the high court and other courts across the country.

Should such a message have been sent out by the Supreme Court? Imagine the fallout if the decision in the Malegaon blast case is stayed by the Bombay high court in the first hearing tomorrow. Think about it. 

Madan B. Lokur is a former judge of the Supreme Court of India

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