TIP-ping Point: 7/11 Blasts And Judicial Lottery

News18

2 days ago

The 7/11 case has yet again raised disturbing questions about the moral compass of Indian criminal jurisprudence.
The conscience of the nation stands enraged. Both possibilities speak volumes of systemic failure. Either the then coalition Government in Maharashtra in 2006 oversaw a catastrophic collapse in investigation and prosecution, letting terrorists walk free. Or we incarcerated innocent men for the last 19 years. Both scenarios paint a profoundly disturbing picture of our justice system.
The 11 dark minutes of July 11, 2006, when seven coordinated bomb blasts ripped through Mumbai's suburban railway network, scarred the city forever. The carnage claimed 209 lives and injured over 700. Swift arrests followed; 13 men were accused, 12 were convicted – five sentenced to death, the rest to life imprisonment. But on July 21, 2025, the Bombay High Court acquitted all 12 convicted men. The Court found the prosecution to have faltered at the most fundamental level.
The judgment exposes a central tension: a conflict between state capacity and judicial threshold. Crimes of this nature are intrinsically difficult to investigate and prosecute. Probes must navigate intricate webs of terror planning and execution, all while racing against time. Every passing moment results in evidentiary decay. Yet, when this challenge of capacity meets the rigorous standards of 'innocent until proven guilty', verdicts like the one in this case become inevitable.
This case has yet again raised disturbing questions about the moral compass of Indian criminal jurisprudence. A recurring affliction in our criminal system is the doctrine of 'uncertain-fatality', an interpretive fragility that leaves outcomes to the temperaments of individual judges. The United States follows a clear standard- the fruit of the poisonous tree doctrine, where any illegally procured evidence is automatically inadmissible.
India has adopted a different course. Indian courts are notably more liberal in admitting evidence, even if tainted by illegality, choosing instead to assign it probative value after scrutiny. Our courts separate the wheat from the chaff, i.e., they painstakingly distinguish believable evidence from the rest. Yet this process of legal surgery varies by the skill and subjectivity of the surgeon. Similar cases with similar flaws have passed the muster before other courts. But the Bombay High Court, in this case, deemed the lapses to be fatal. The real fatality, it seems, is even-handed justice. Your ability to secure relief as a kin of the deceased now hinges disproportionately on the courtroom lottery. In this case, the Bombay High Court took a sword to the scalpel, with one blow, it declared the prosecution's case to have 'utterly failed.'
The concern lies not in the judges having taken a particular view, but in the inconsistency and subjectivity with which criminal justice is dispensed. The Bombay High Court, while acquitting all convicts, based its reasoning primarily on the flawed Test Identification Parade (TIP). Put simply, in a TIP, the accused is made to stand in a lineup with others of similar physique and features, and the eyewitness is invited to pick out the suspect. The very act of correctly identifying the accused lends strength and credibility to the witness's courtroom testimony.
Under Section 7 of the Bharatiya Sakshya Adhiniyam, 2023, TIP serves a dual purpose: first, it helps the investigating agency confirm if they are on the right track; second, it offers corroboration for in-court identification. It becomes a critical evidentiary tool, helping place the accused at the relevant location and time.
The procedure, however, is stringent. TIPs must be conducted by a Magistrate, not the police, and preferably within jail premises to minimise external influence. Witnesses must be called individually, barred from communication with each other, and asked to describe what they saw. Every reaction must be recorded in detail.
In this case, the Bombay High Court excluded the identification evidence entirely. It held that TIPs were conducted by Shri Barve, a Special Executive Officer, who had no legal authority to carry them out. This procedural violation- TIPs must be supervised by a Magistrate, was not a mere technical lapse. According to the Court, it rendered the identification process void and left it open to manipulation. Consequently, the identifications made by witnesses were deemed inadmissible. The prosecution, which had heavily relied on these TIPs, now found itself without the very foundation of its case.
What remained was dock identification, witnesses identifying the accused in court nearly four years later. But that raised a pivotal legal question: can someone credibly identify an individual they only saw momentarily, years ago, without memory aids or prior interaction? The High Court concluded they could not. No distinguishing features. No extended observation. No credibility. Thus, even the courtroom identifications were stripped of their evidentiary weight.
The very eyewitness testimony on which the prosecution had built its case crumbled, ironically, not due to falsehood, but due to the prosecution's own procedural lapses. This would be an acceptable outcome, had other courts taken such a strict approach. But that is not the case. Courts across India continue to admit TIP evidence despite glaring procedural irregularities. That inconsistency needs urgent review by the Supreme Court of India.
Another major blow to the prosecution was its reliance on stock witnesses- individuals who appear as panch or eyewitnesses in multiple unrelated cases. For instance, Vishal Parmar claimed to have seen Accused No. 4 board the train with a black rexine bag and disembark without it. The Court flagged him as unreliable, as he had served as a panch witness in multiple prior cases, including those involving officers from this very trial. His employer, Mukesh Rabadiya, was similarly discredited as a stock witness.
Yet in Nana Keshav Lagad v. State of Maharashtra (2013), the Supreme Court clarified that merely appearing as a witness in multiple cases does not invalidate testimony by itself. This raises legitimate questions about the Bombay High Court's choice to outright dismiss such testimony here.
The trouble is, this was bound to happen. When judicial discretion is left unbounded by consistent thresholds, some courts interpret lapses as fatal, others see them as fixable. This divergence undermines the rule of law. And the stakes are extraordinarily high in cases involving such enormous human tragedy.
Just as troubling is the message this sends to the investigative machinery: that mistakes may or may not matter, depending on the bench. Impunity thrives in uncertainty. We urgently need clear, consistent, and constitutionally sound standards, replacing what has become a wild west of discretion in criminal procedure. Criminal justice must be precise. We must know what is acceptable and what is not.
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The Supreme Court has issued notice in the criminal appeal. The legal questions answered by the Bombay High Court now await constitutional scrutiny.
The author is a Senior Supreme Court Advocate and former Additional Solicitor General of India. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect News18's views.
tags :
2006 Mumbai Train Blasts Mumbai train blasts
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New Delhi, India, India
First Published:
July 28, 2025, 15:57 IST
News opinion Opinion | TIP-ping Point: 7/11 Blasts And Judicial Lottery
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