Zahira Habibullah Sheikh
& Anr Vs. State of Gujarat & Ors 
Insc 118 (8 March 2006)
Arijit Pasayat & H.K. Sema
CRIMINAL MIS. PETITION NOS.6658-6661 OF 2004 IN CRIMINAL APPEAL NOS.
446-449 OF 2004 ARIJIT PASAYAT, J.
case at hand immediately brings into mind two stanzas (14 and 18) of Eighth
Chapter of Manu Samhita dealing with role of
witnesses. They read as follows:
14 "Jatro dharmo hyadharmena Satyam Jatranrutenacha Hanyate prekshyamananam Hatastrata Sabhasadah" (Where in the presence of Judges
"dharma" is overcome by "adharma"
and "truth" by "unfounded falsehood", at that place they
(the Judges) are destroyed by sin) Stanza 18 "Padodharmasya
Kartaram Padah sakshinomruchhati Padah sabhasadah sarban pado rajanmruchhati" (In the
adharma flowing from wrong decision in a Court of
law, one fourth each is attributed to the person committing the adharma, witness, the judges and the ruler".) This
case has its matrix in an appeal filed by Zahira Habibullah hereinafter referred to as 'Zahira
and Another namely, Teesta Setelwad'
and another appeal filed by the State of Gujarat. In the appeals filed before this
Court, the basic focus was on the absence of an atmosphere conducive to fair
trial. Zahira who was projected as the star witness
made a grievance that she was intimidated, threatened and coerced to depart
from the truth and to make statement in Court which did not reflect the
reality. The trial Court on the basis of the statements made by the witnesses
in Court directed acquittal of the accused persons. Before the Gujarat High
Court an application under Section 391 of the Code of Criminal Procedure, 1973
(in short the 'Code') highlighting the necessity for accepting additional
evidence was filed. The foundation was the statement made by Zahira. The High Court did not accept the prayer and that
is why the appeals came to be filed in this Court. By judgment dated 12th
in Zahira Habibullah Sheikh
& Anr. v. State of
Gujarat and Ors. [(2004) 4 SCC 158], the
following directions were given:
"Keeping in view the peculiar circumstances of the case, and the ample evidence
on record, glaringly demonstrating subversion of justice delivery system no
congeal and conducive atmosphere still prevailing, we direct that the re-trial
shall be done by a Court under the jurisdiction of Bombay High Court. The Chief
Justice of the said High Court is requested to fix up a Court of Competent
we have directed re-trial it would be desirable to the investigating agency or
those supervising the investigation, to act in terms of Section 173(8) of the
Code, as the circumstances seem to or may so warrant. The Director General of
Police, Gujarat is directed to monitor re-investigation, if any, to be
taken up with the urgency and utmost sincerity, as the circumstances warrant.
Sub-section (8) of Section 173 of the Code permits further investigation, and
even de hors any direction from the Court as such, it is open to the police to
conduct proper investigation, even after the Court took cognizance of any
offence on the strength of a police report earlier submitted." A review petition (Zahira' Habibulla H. Sheikh and Anr.
V. State of Gujarat and Ors. (2004 (5) SCC 353) was
filed by the State of Gujarat which was disposed of by order
dated 7th May, 2004.
the trial was on before a Court in Maharashtra pursuant to this Court's direction,
it appears Zahira gave a press statement in the
presence of some government officials that what she had stated before the trial
Court in Gujarat earlier was correct. A petition was
filed before this Court alleging that Zahira's
statement was nothing but contempt of this Court. At a press conference held on
3.11.2004 few days before the scheduled appearance of the witnesses in the
trial, she had changed her version, disowned the statements made in this Court,
and before various bodies like National Human Rights Commission. Considering
the petition filed orders were passed on 10.1.2005 and subsequently on
21.2.2005, giving directions which read as follows:
dated 10.1.2005 Having heard learned counsel for the
parties, we are of the considered view that a detailed examination is necessary
as to which version of Zahira Habibullah
Sheikh is a truthful version. It is necessary to do so because various documents
have been placed to show that she had made departure from her statements/stands
at different points of time.
are made by Mr. P.N.Lekhi, learned senior counsel
appearing for Zahira Habibullah
Sheikh that she was being threatened, coerced, induced and/or lured by Teesta Setalvad. On the contrary,
learned counsel appearing for Teesta Setalvad submits that she was being threatened, coerced,
lured or induced by others to make statements or adopt stands contrary to what
she had stated/adopted earlier. In this delicate situation, the appropriate
course would be to direct an inquiry to be conducted to arrive at the truth. We
direct the Registrar General of this Court to conduct the inquiry and submit a
report to this Court within three months. The Registrar General shall indicate
in the report
if Zahira Habibullah Sheikh was in any manner threatened, coerced,
induced and/or in any manner pressurised to
depose/make statement(s) in any particular way, by any person or persons, and
if the answer to (a) is in the
affirmation, who the person/persons is (or) are.
the purpose of inquiry, he may take assistance of a police officer of the rank
of Inspector General of Police. Though a suggestion was given by Mr. For the
purpose of inquiry, he may take assistance of a police officer of the rank of
Inspector General of Police. Though a suggestion was given by Mr. Anil Diwan, learned senior counsel appearing on behalf of Ms.Teesta Setalvad that it should
be an officer from the CBI, Mr.P.N.Lekhi, Mr.K.T.S.Tulsi and Mr.Mukul Rohtagi, learned senior counsel, opposed
the same. In our view, an efficient, impartial and fair officer should be
selected. Therefore, we leave the choice to the Registrar General to nominate
an officer of the Delhi Police, as noted above, of the rank of Inspector
General of Police. The inquiry shall be conducted on the basis of affidavits to
be placed before the Registrar General and if he deems fit, he may examine any
witness or witnesses to substantiate the contents of the affidavits. We do not
think it necessary to lay down any broad guidelines as to the modalities which
the Registrar General will adopt. He is free to adopt such modalities as he
thinks necessary to arrive at the truth, and to submit the report for further
affidavits and documents if any in support of the respective stands shall be
filed before the Registrar General within a period of four weeks from today.
make it clear that the pendency of the inquiry will
not be a ground for seeking adjournment in the pending trial.
have perused the letter of the trial court seeking extension of time. The time
is extended till 31st of May, 2005 for completion of trial.
matter shall be placed for consideration of the Report to be submitted, after
three months. Order dated 21.2.2005 Heard. The parties are granted four weeks'
time to file the affidavits in terms of the earlier order dated 10.01.2005. We
make it clear that we have not taken note of paragraph-8 of the application
filed in Crl.M.P. Nos.1908-1911 of 2005.
Miscellaneous Petition Nos.1908- 1911 of 2005 are
accordingly disposed of. Crl.M.P. Nos.6658-6661 of
2004 By order dated 10.01.2005, the question as to whether Ms. Zahira Habibullah Sheikh was in
any manner induced to depose in a particular way, has been directed to be
enquired into, we think it appropriate to direct her to file an affidavit
indicating details of her bank accounts, advances, other deposits, amounts
invested in movable or immovable properties and advances or security deposits,
if any for the aforesaid purpose, along with the affidavit to be filed before
the Registrar General of this Court. She will also indicate the sources of the
aforesaid deposits, advances and investments, as the case may be. She shall
also indicate the details of such deposits, advances and investments, if any,
in respect of her family members and the source thereof. The Registrar General
and police officer nominated to be associated with enquiry are free to record
statements of such family members and to make such further enquiries in the
manner as deemed necessary and to ask the family members to file affidavits
containing the details as noted above. They shall indicate in the affidavits
and the statements the sources of such deposits, advances and investments. If
the Registrar General and the police officer feel that any further enquiry as
regards the sources is necessary, they shall be free to do it.
we have extended the time for filing of affidavits by the parties,
the enquiry report shall be submitted by the Registrar General within three
months from today.
thereafter." Considering the materials placed before the Inquiry Officer,
he has submitted his report. Parties were permitted to file statements
indicating their views so far as the report is concerned. The findings recorded
by the Inquiry Officer with reference to various documents are essentially as
The FIR dated 2.3.2002
Memorandum dated 21.3.2002 before
the Chairman, NHRC
Statements made on 11.5.2002 and
20.7.2002 before the concerned Citizen Tribunal and Nanavati
Statements dated 7.7.2003 of the
Press Conference in Mumbai
Statement dated 11.7.2003 before
Plain copy of the affidavit dated
8.9.2003 attested by Notary submitted before this Court as additional document
in SLP(Crl.) 3770/2003
Statement recorded on 16.12.2003 at
the Santa Cruz Police Station, Mumbai
Affidavit dated 3.11.2004 submitted
before Collector, Vadodara
Affidavit dated 31.12.2004 submitted
before this Court
Affidavits dated 20.3.2005,
12.4.2005 and 24.4.2005 before the Inquiry Officer.
Inquiry Officer has categorically recorded that Zahira
had changed her stands at different stages and has departed from statements
made before this Court. So far as the question whether she was threatened,
coerced, lured, induced and/or in any manner pressurized to make statements in
a particular way by any person or persons, it has been found that Zahira has not been able to explain the assets in her
possession in spite of several opportunities having been granted. The Inquiry
Officer had referred to transcript of conversations purported to have been made
between a representative of "Tehlaka" and Shri Tushar Vyas,
Shri Nisar Bapu and Shri Chandrakant
Ramcharan Srivastava @ Bhattoo Srivastava, Shri Madhu Srivastava,
and Shri Shailesh Patel.
These persons were also given opportunity to explain their stands as the
transcript of the Video Compact Disc produced by Tehlaka.com clearly indicated
that money was paid to Zahira to change her stand.
Inquiry Officer has referred to the explanations offered by Zahira
and her family members and found that she could not explain various receipts of
money received by her and deposits made in their bank accounts. The amount
involved was nearly rupees five lakhs. The
explanation offered by Zahira and her family members
was found unacceptable. The details indicated in the affidavit dated 24.4.2005
filed by Zahira explained the following details:
"'Rs.65,000/- Sale consideration of one house sold in
the month of November, 2001
Sale consideration of two-three wheelers
sold to Scrap dealer (Kabadi)
Received from Insurance Company by mother on account of damages to motor cycle.
Rs.32,000/- Sale consideration of scrap of machinery
Sale consideration of scrap of Bakery
Rs.50,000/- Compensation for damages
of house received from Government through cheque in favour of her mother
Rs.50,000/- Received by mother as
& Rs.40,000/- compensation of her sister's death from the Government
Rs.493/-P.M. Deposited on monthly
basis directly in Savings Bank Account No.16669 with Syndicate Bank stands in
the name of mother, as interest on Bond amount of Rs.50,000/-
received as compensation of her sister's death from Government.
Rs.55,000/- Investment in a house in
Ekta Nagar in the name of
Ms. Zahira Sheikh
& Rs.25,000/- Investment in two small plots of 15x30ft. each by her brother
Rs.45,000/- Deposited by her in the
Bank Account No.11348 with Bank of Baroda, Nawapura
Branch at Vadodara
Rs.52,045/- Deposits in a joint
account No.16754 with her brother, Nasibullah with
Syndicate Bank, Goddev Branch, Bhayander
Rs.1,37,384/- Deposits in her
brother's account No.16667 with Syndicate Bank, Goddev
Deposits in her mother's account No.16669 with Syndicate Bank, Goddev Branch, Bhayander.
Inquiry Officer repeatedly asked Zahira and her
brother H. Nafitullah about the names and addresses
of purchasers of scrap and further details which were not supplied.
charts have been prepared by the Inquiry Officer showing the discrepancies.
They read as follows:
CHART NO. 1
Receipts S. No.
Rs. 50,000/- & Rs.
40,000/- Received as compensation of her sister's death
Rs. 25,000/- Received as damages of
Rs. 30,000/- Received from insurance
company against damages of motorcycle.
Rs. 18,800/- Received as sale price of
Rs. 6,296/- Receipts from clearing
zone- Received as interest against bond of which has been alleged to be
purchased out of the balance amount of Damages of sister's death.
TOTAL Rs. 2,02,096/- Note: Rs.1,82,000/- have been claimed to be
treated as receipts against the sale price of the scrap which has not been
acceded to on the ground noted on page No. 106-107 despite if this amount is
deemed to be accepted, then the total of the receipts will be Rs. 3,84,096 (Rs. 2,02,096 + Rs. 1,82,000).
CHART NO. 2
Rs. 45,000/- Deposited by her in the
Bank Account No. 11348 with Bank of Baroda, Nawapura
Branch at Vadodara.
Rs. 52,045/- Deposits in a joint
account No. 16754 with her brother, Nasibullah with
Syndicate Bank, Goddev Branch, Bhayander.
Deposits in her brother's account No. 16667 with Syndicate Bank, Goddev Branch, Bhayander.
Deposits in her mother's account No. 16669 with Syndicate Bank, Goddev Branch, Bhayander.
Rs. 73,000/- Purchase of two plots and
construction to the tune of Rs. 66,000/- and spent Rs. 7,000/- on renovation of best bakery building.
Rs. 60,000/- Invested against a flat
Rs. 48,000/- Deposited on 14.5.2003
with Bank account (A/c. No. 2037) of Sh. Nafitullah.
Rs. 30,727/- Mother's account (A/c.
No. 8881) Total Rs. 5,88,412/- - Difference:
Investments Receipts Rs.
2,02,096 = Rs. 3,86,316/- - If Rs.
1,82,000/- is also included as receipts then the difference is = Rs. 2,04,316/-.
Inquiry Officer recorded the following findings:
view of the all, as discussed above, the fact which can be accepted as highly
probable, that money has exchanged hands and that was the main inducement
responsible which made Ms. Zahira to state in a
particular way in Trial Court, Vadodara although
threat could have also played a role in reaching at an agreement.
the element of threat cannot be altogether ruled out. One cannot loose sight of
the fact that first contact over cell phone was made by Sh.
Madhu Srivastava and Sh. Bharat Thakkar
and not by Sh. Nafitullah.
The evidence of Sh. Abhishek
Kapoor about presence of Sh.
Madhu Srivastava, MLA, in
the Court at the time of testimony of Ms. Zahira can
also be treated as an indication of this factor." In addition to the
aforesaid conclusions the Inquiry Officer has also recorded that after a
particular point of time contemporaneous to when she started changing her
stand, a society called Jan Adhikar Samiti came to the picture. It appears from the statements
of functionaries of Jan Adhikar Samiti
that substantial amount has been spent for meeting the expenses of Zahira and her family members. But the Inquiry Officer has
found that even though materials do exist to show that money played a vital
role in the change of stand yet it could not be directly linked to Madhu Srivastava and Bhattoo Srivastava.
Zahira has objected to acceptance of the Inquiry Officer's report.
The grounds on which the objections have been raised essentially as follows:
The Inquiry Officer has tailored
facts to fit into his pre-conceived conclusions. There has been deliberate
omissions and distortion of facts.
No cross examination of the
witnesses whom the Inquiry Officer has examined was permitted.
There was no transparent procedure
adopted and the agreed procedure was never followed.
There was lack of fair objective and
reasonable approach. The pre-requisites of an objective enquiry were missing.
There was no intelligent appreciation of facts.
The Inquiry Officer appeared to be
guided by Teesta Setalwad.
The conclusion that Zahira had approached this Court
for a fresh trial is wrong.
The request for examining the
Chairman, NHRC was not accepted without indicating any reason.
Zahira was not only the person who had
made departure from her stand purportedly recorded during investigation, there
were others but no effort was made to take any action against them. Though many
persons had died or injured, Citizen for Justice and Peace and its
functionaries never bothered to take up their cases. It is surprising why they
only chose Zahira.
The petition filed before this Court
was not in fact signed by Zahira but was signed by Teesta and the mere fact that she had filed a Vakalatnama would not make her responsible for the
statements made in the affidavit.
Upto the point of time of the Press
Conference Zahira was under the control of Teesta and she was a mere puppet in her hands and whatever
statement was purportedly made by Zahira was in fact
made by Teesta. Teesta's
role in the whole episode is very suspicious. She had spent lot of money taking
advantage of the helplessness of Zahira and has used
her for her machination.
Zahira was tutored to make statements on different occasions. Teesta has given different versions as to when she has come
in contact with Zahira and decided to take up her
other hand, the State of Gujarat has adopted a peculiar stand
stating that in view of conclusions of the Inquiry Officer it is not in a
position to simpliciter accept or deny the report. So
far as the criticism levelled by the Inquiry Officer
against the conduct of some of the officers it was pointed out that the State
has shown its anxiety to see that justice is done and nothing is wrong in
deputing officers and merely because Shri S.N. Sinha who had been transferred appeared in the proceedings
before the Inquiry Officer, that cannot show that the State of Gujarat was
adopting any particular stand.
behalf of Mrs. Teesta it has been submitted that
report deserves to be accepted. Further enquiry as to the role of Madhu Srivastava and the sources
of money which has come to the possession of Zahira
may be further proved. The Inquiry Officer has clearly indicated the roles
played by Madhu Srivastava
and his cousin Chandrakant in intimidating/coercing
witnesses like Zahira and family members. Assistance
was given by Sudhir Sinha,
Commissioner of Police, Surat to Zahira
to hold the press conference on 3.11.2004 just a day before her testimony was
to be recorded in Mumbai. Similar assistance was given by Shri
Bhagyesh Jha, Collector, Vadodara to Zahira.
The directions by the Home Secretary Shri S.C. Murmu, to Shri Sudhir Sinha, Commissioner of
Police, to attend the proceedings before the Inquiry Committee clearly show the
partisan approach. The role of the State of Gujarat in lodging Zahira
and her family members at Silver Oak Club, Gandhi Nagar
for a period of 10 days raises big question mark as to who met the expenses.
These clearly show that sinister roles were played by State of
Gujarat's functionaries. It has been
submitted that Teesta is being targeted for exposing
the evil deeds of the aforesaid persons.
outset, it has to be noted that we have not gone into the question as to
whether Teesta has done anything wrong in the
process. It was for Zahira to explain whether she was
either telling the truth or making false statement. Merely stating that she was
acting as a puppet in the hands of Teesta is not
sufficient. Much has been made by learned counsel for Zahira
about some observations made by Inquiry Officer in his report. A bare reading
of the observations makes it clear that what is being submitted by learned
counsel for Zahira is by reading observations out of
procedure adopted during enquiry has been characterized to be unfair and not
fair and transparent procedure. On a bare perusal of the proceedings of the
enquiry, it is clear that the procedure adopted was quite transparent. The
proceedings were conducted in the presence of learned counsel for the parties
and/or the parties themselves. After the questions were asked by the Inquiry
Officer, learned counsel and the parties were asked if any further questions
were to be asked and as the records revealed whenever any question was
suggested that was asked.
is made that scope for "cross examination" was not given. That
according to us is really of no consequence. What questions in "cross
examination" by learned counsel could have been put, were asked by the
Inquiry Officer whenever any suggestion was made in that regard. If a party did
not suggest any question to be put to a witness by the Inquiry Officer, it is
not open for him or her to say that opportunity for "cross
examination" was not given. A further grievance is made that a request to
call the Chairman, NHRC was turned down without reasons. This according to us
is a plea which needs to be noticed and rejected. The statement of Zahira was recorded by NHRC in the presence of the Chairman
(a retired Chief Justice of this Court) and several members which included a
retired Judge of this Court). The allegation that it was not properly recorded
or that somebody else's statement was recorded and Zahira
was asked to put the signatures, as she has tried to make out is clearly
untenable. If we may say so, such a plea should not have been raised as it
reflects on the credibility of functionaries of a body like NHRC.
other pleas which have been enumerated above do not in any way affect
credibility or acceptability of the report.
allegation that the Inquiry Officer acted with some pre- conceived ideas and/or
report was based on presumptions is not correct. The conclusions drawn by the
Inquiry Officer have their foundation on materials which have been elaborately
discussed by the Inquiry Officer. Much has been made of the fact that original
affidavit was not filed. The reason for this has been explained, the Inquiry
Officer has dealt with the question in detail and undisputedly original
affidavit has been brought on record. The stand that mere filing of a vakalatnama without an affidavit by the concerned person
cannot constitute a statement by the person who has filed the vakalatnama is clearly unacceptable. The appeal
undisputedly has been filed by Zahira and it has been
candidly admitted that she has filed the vakalatnama
for filing the appeal. She cannot now turn around and say that she was not a
party in the appeal.
being the position, there is no reason to discard the report given by the
Inquiry Officer which is accordingly accepted. Further, what remains to be done
is what is the consequence of Zahira
having made such conflicting statements and the effect for changing her stand
from the statements made at different stages, particularly in this Court.
be the fate of the trial before the Court at Mumbai where the trial is stated
to be going on and the effect of her statement made during trial shall be
considered in the trial itself. Acceptance of the report in the present
proceedings cannot have any determinative role in the trial. Serious questions
arise as to the role played by witnesses who changed their versions more
frequently than chameleons.
Zahira's role in the whole case is an eye-opener for all concerned
with the administration of criminal justice. As highlighted at the threshold
the criminal justice system is likely to be affected if persons like Zahira are to be left unpunished. Not only the role of Zahira but also of others whose conduct and approach before
the Inquiry Officer has been highlighted needs to be noted. The Inquiry Officer
has found that Zahira could not explain her assets
and the explanations given by her in respect of the sources of bank deposits
etc. have been found to be unacceptable. We find no reason to take a different
the course of hearing, we had asked learned counsel appearing for Zahira as to whether they would like to be heard on the
question of the consequential order, if any, if the report is accepted and Zahira is found to have committed contempt or to have
deflected the course of justice by unacceptable methods. Learned counsel for Zahira stated that they would not like to make statements
in that regard and would only stress on the report being not accepted. Zahira has committed contempt of this Court.
by virtue of Entry 77 List I is competent to enact a law relating to the powers
of the Supreme Court with regard to contempt of itself and such a law may
prescribe the nature of punishment which may be imposed on a contemner by virtue of the provisions of Article 129 read
with Article 142(2) of the Constitution of India, 1950. Since, no such law has
been enacted by Parliament, the nature of punishment prescribed under the Contempt
of Courts Act, 1971 may act as a guide for the Supreme Court but the extent of
punishment as prescribed under that Act can apply only to the High Courts,
because the 1971 Act ipso facto does not deal with the contempt jurisdiction of
the Supreme Court, except that Section 15 of the Act prescribes procedural mode
for taking cognizance of criminal contempt by the Supreme Court also.
15, however, is not a substantive provision conferring contempt jurisdiction.
The judgment in Sukhdev Singh Sodhi
v. Chief Justice and Judges of the PEPSU High Court (AIR 1954 SC 186) as
regards the extent of "maximum punishment" which can be imposed upon
a contemner must, therefore, be construed as dealing
with the powers of the High Courts only and not of this Court in that behalf.
In Supreme Court Bar Association v. Union of India and Anr.
(AIR 1998 SC 1895), this Court expressed no final opinion on that question since
that issue, strictly speaking, did not arise for decision in that case. The
question regarding the restriction or limitation on the extent of punishment,
which this Court may award while exercising its contempt jurisdiction, it was
observed, may be decided in a proper case, when so raised. We may note that a
three Judge Bench in Suo Motu
Contempt Petition 301 of 2003 by judgment dated 19.12.2003 in re: Sri Pravakar Behera (2003 (10) SCALE
1726) imposed cost of Rs.50,000/-.
complex pattern of life which is never static requires a fresher outlook and a
timely and vigorous moulding of old precepts to some
new conditions, ideas and ideals. If the Court acts contrary to the role it is
expected to play, it will be destruction of the fundamental edifice on which
justice delivery system stands. People for whose benefit the Courts exists
shall start doubting the efficacy of the system. Justice must be rooted in
confidence and confidence is destroyed when right minded people go away
thinking that "the Judge was biased". (Per Lord
Denning MR in Metropolitan Properties Ltd. v. Lannon
(1968) 3 All ER 304 (CA). The perception may be wrong about the judge's
bias, but the Judge concerned must be careful to see that no such impression
like Ceaser's wife should be above suspicion (Per
Bowen L.J. in Lesson v. General Council of Medical Education (1890) 43 Ch.D. 366).
acting in the expected manner a judge exposes himself to unnecessary criticism.
At the same time the Judge is not to innovative at pleasure. He is not a
Knight-errant roaming at will in pursuit of his own ideal of beauty or of
goodness, as observed by Cardozo in "The Nature
of Judicial Process".
significantly said that law, to be just and fair has to be seen devoid of flaw.
It has to keep promise to justice and it cannot stay petrified and sit non-challantly. The law should not be seen to sit by limply,
while those who defy it go free and those who seek its protection loose hope
(See Jennison v. Backer (1972 (1) All ER 1006).
Increasingly, people are believing as observed by SALMON quoted by Diogenes Laertius in "Lives of the Philosophers" laws are
like spiders' webs: if some light or powerless thing falls into them, it is
caught, but a bigger one can break through and get away". Jonathan Swift,
in his "Essay on the Faculties of the Mind" said in similar lines:
"Laws are like cobwebs, which may catch small flies, but let wasps and
hornets break through".
been noticed earlier in the earlier case (reported in 2004 (4) SCC 158), the
role to be played by Courts, witnesses, investigating officers, public
prosecutors has to be focused, more particularly when eyebrows are raised about
this context, reference may be made to Section 311 of the Code which reads as
"Power to summon material witness, or examine
Court may, at any stage of any inquiry, trial or other proceeding under this
Code, summon any person as a witness or examine any person in attendance,
though not summoned as a witness or recall and re- examine any person already
examined, and the Court shall summon and examine or recall and re-examine any
such person if his evidence appears to it to be essential to the just decision
of the case." The section is manifestly in two parts. Whereas the word
used in the first part is "may", the second part uses
"shall". In consequences, the first part gives purely discretionary
authority to a Criminal Court and enables it at any stage of an enquiry, trial
or proceeding under the Code
to summon any one as a witness, or
to examine any person present in
to recall and re-examine any person
whose evidence has already been recorded. On the other hand, the second part is
mandatory and compels the Court to take any of the aforementioned steps if the
new evidence appears to it essential to the just decision of the case. This is
a supplementary provision enabling, and in certain circumstances imposing on
the Court the duty of examining a material witness who would not be otherwise
brought before it.
couched in the widest possible terms and calls for no limitation, either with
regard to the stage at which the powers of the Court should be exercised, or
with regard to the manner in which it should be exercised. It is not only the
prerogative but also the plain duty of a Court to examine such of those
witnesses as it considers absolutely necessary for doing justice between the
State and the subject. There is a duty cast upon the Court to arrive at the
truth by all lawful means and one of such means is the examination of witnesses
of its own accord when for certain obvious reasons either party is not prepared
to call witnesses who are known to be in a position to speak important relevant
object underlying Section 311 of the Code is that there may not be failure of
justice on account of mistake of either party in bringing the valuable evidence
on record or leaving ambiguity in the statements of the witnesses examined from
either side. The determinative factor is whether it is essential to the just
decision of the case. The section is not limited only for the benefit of the
accused, and it will not be an improper exercise of the powers of the Court to
summon a witness under the Section merely because the evidence supports the
case for the prosecution and not that of the accused. The section is a general
section which applies to all proceedings, enquiries and trials under the Code
and empowers Magistrate to issue summons to any witness at any stage of such
proceedings, trial or enquiry. In Section 311 the significant expression that
occurs is "at any stage of inquiry or trial or other proceeding under this
Code". It is, however, to be borne in mind that whereas the section
confers a very wide power on the Court on summoning witnesses, the discretion
conferred is to be exercised judiciously, as the wider the power the greater is
the necessity for application of judicial mind.
indicated above, the Section is wholly discretionary.
second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons
whose evidence appears to be essential to the just decision of the case. It is
a cardinal rule in the law of evidence that the best available evidence should
be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act,
1872 (in short, 'Evidence Act') are based on this rule. The Court is not
empowered under the provisions of the Code to compel either the prosecution or
the defence to examine any particular witness or
witnesses on their side. This must be left to the parties. But in weighing the
evidence, the Court can take note of the fact that the best available evidence
has not been given, and can draw an adverse inference. The Court will often
have to depend on intercepted allegations made by the parties, or on
inconclusive inference from facts elicited in the evidence. In such cases, the
Court has to act under the second part of the section. Sometimes the
examination of witnesses as directed by the Court may result in what is thought
to be "filling of loopholes". That is purely a subsidiary factor and
cannot be taken into account. Whether the new evidence is essential or not must
of course depend on the facts of each case, and has to be determined by the Presiding
object of the Section 311 is to bring on record evidence not only from the
point of view of the accused and the prosecution but also from the point of
view of the orderly society. If a witness called by Court gives evidence
against the complainant he should be allowed an opportunity to cross- examine.
The right to cross-examine a witness who is called by a Court arises not under
the provision of Section 311, but under the Evidence Act which gives a party
the right to cross- examine a witness who is not his own witness. Since a
witness summoned by the Court could not be termed a witness of any particular
party, the Court should give the right of cross- examination to the
complainant. These aspects were highlighted in Jagat Rai v. State of Maharashtra, (AIR 1968 SC 178).
from the inception of the judicial system it has been accepted that discovery,
vindication and establishment of truth are the main purposes underlying
existence of Courts of justice. The operative principles for a fair trial
permeate the common law in both civil and criminal contexts. Application of
these principles involves a delicate judicial balancing of competing interests
in a criminal trial, the interests of the accused and the public and to a great
extent that of the victim have to be weighed not losing sight of the public
interest involved in the prosecution of persons who commit offences.
1846, in a judgment which Lord Chancellor Selborne
would later describe as "one of the ablest judgments of one of the ablest
judges who ever sat in this court," Vice-Chancellor Knight Bruce said :
discovery and vindication and establishment of truth are main purposes
certainly of the existence of Courts of Justice; still, for the obtaining of
these objects, which, however, valuable and important, cannot be usefully
pursued without moderation, cannot be either usefully or creditably pursued
unfairly or gained by unfair means, not every channel is or ought to be open to
practical inefficacy of torture is not, I suppose, the most
weighty objection to that mode of examination. Truth, like all other
good things, may be loved unwisely - may be pursued too keenly - may cost too
much." The Vice-Chancellor went on to refer to paying "too great a
price .... for truth". This is a formulation
which has subsequently been frequently invoked, including by Sir Gerard
Brennan. On another occasion, in a joint judgment of the High Court, a more
expansive formulation of the proposition was advanced in the following terms:
"The evidence has been obtained at a price which is unacceptable having
regard to the prevailing community standards." Restraints on the processes
for determining the truth are multi-faceted. They have emerged in numerous
different ways, at different times and affect different areas of the conduct of
legal proceedings. By the traditional common law method of induction there has
emerged in our jurisprudence the principle of a fair trial. Oliver Wendell
Holmes described the process :
is the merit of the common law that it decides the case first and determines
the principles afterwards ..... It is only after a series of determination on
the same subject- matter, that it becomes necessary to "reconcile the
cases", as it is called, that is, by a true induction to state the
principle which has until then been obscurely felt. And this statement is often
modified more than once by new decisions before the abstracted general rule
takes its final shape. A well settled legal doctrine embodies the work of many
minds, and has been tested in form as well as substance by trained critics
whose practical interest is to resist it any every step." The principle of
fair trial now informs and energizes many areas of the law. It is reflected in
numerous rules and practices. It is a constant, ongoing development process
continually adapted to new and changing circumstances, and exigencies of the
situation - peculiar at times and related to the nature of crime, persons
involved - directly or operating behind, social impart and societal needs and
even so many powerful balancing factors which may come in the way of
administration of criminal justice system.
will presently appear, the principle of a fair trial manifests itself in
virtually every aspect of our practice and procedure, including the law of
evidence. There is, however, an overriding and, perhaps, unifying principle. As
Deane, J. put it:
is desirable that the requirement of fairness be separately identified since it
transcends the context of more particularized legal rules and principles and
provides the ultimate rationale and touchstone of the rules and practices which
the common law requires to be observed in the administration of the substantive
criminal law." This Court has often emphasised
that in a criminal case the fate of the proceedings cannot always be left
entirely in the hands of the parties, crime being public wrong in breach and
violation of public rights and duties, which affect the whole community as a
community and are harmful to the society in general. The concept of fair trial
entails familiar triangulation of interests of the accused, the victim and the
society and it is the community that acts through the State and prosecuting
agencies. Interests of society is not to be treated
completely with disdain and as persona non grata.
Courts have always been considered to have an over-riding duty to maintain
public confidence in the administration of justice - often referred to as the
duty to vindicate and uphold the 'majesty of the law'.
administration of justice has always been viewed as a continuous process, not
confined to determination of the particular case, protecting its ability to
function as a Court of law in the future as in the case before it. If a
criminal Court is to be an effective instrument in dispensing justice, the
Presiding Judge must cease to be a spectator and a mere recording machine by
becoming a participant in the trial evincing intelligence, active interest and
elicit all relevant materials necessary for reaching the correct conclusion, to
find out the truth, and administer justice with fairness and impartiality both
to the parties and to the community it serves. Courts administering criminal
justice cannot turn a blind eye to vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a fair trial is still possible,
except at the risk of undermining the fair name and standing of the judges as
impartial and independent adjudicators.
principles of rule of law and due process are closely linked with human rights
protection. Such rights can be protected effectively when a citizen has
recourse to the Courts of law. It has to be unmistakably understood that a
trial which is primarily aimed at ascertaining the truth has to be fair to all
concerned. There can be no analytical, all comprehensive or exhaustive
definition of the concept of a fair trial, and it may have to be determined in
seemingly infinite variety of actual situations with the ultimate object in
mind viz. whether something that was done or said either before or at the trial
deprived the quality of fairness to a degree where a miscarriage of justice has
resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a
Nelson's eye to the needs of the society at large and the victims or their
family members and relatives.
one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of
a fair trial is as much injustice to the accused as is to the victim and the
society. Fair trial obviously would mean a trial before an impartial Judge, a
fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in
which bias or prejudice for or against the accused, the witnesses, or the cause
which is being tried is eliminated. If the witnesses get threatened or are
forced to give false evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of fair trial.
criminal trial is a judicial examination of the issues in the case and its
purpose is to arrive at a judgment on an issue as to a fact or relevant facts
which may lead to the discovery of the fact issue and obtain proof of such
facts at which the prosecution and the accused have arrived by their pleadings;
the controlling question being the guilt or innocence of the accused. Since the
object is to mete out justice and to convict the guilty and protect the
innocent, the trial should be a search for the truth and not a bout over
technicalities, and must be conducted under such rules as will protect the
innocent, and punish the guilty. The proof of charge which has to be beyond
reasonable doubt must depend upon judicial evaluation of the totality of the
evidence, oral and circumstantial, and not by an isolated scrutiny.
to accord fair hearing either to the accused or the prosecution violates even
minimum standards of due process of law. It is inherent in the concept of due
process of law, that condemnation should be rendered
only after the trial in which the hearing is a real one, not sham or a mere
farce and pretence. Since the fair hearing requires an opportunity to preserve
the process, it may be vitiated and violated by an overhasty stage-managed,
tailored and partisan trial.
fair trial for a criminal offence consists not only in technical observance of
the frame, and forms of law, but also in recognition and just application of
its principles in substance, to find out the truth and prevent miscarriage of
as Bentham said: are the eyes and ears of justice. Hence, the importance and primary of the quality of trial process.
If the witness himself is incapacitated from acting as eyes and ears of
justice, the trial gets putrefied and paralysed, and
it no longer can constitute a fair trial. The incapacitation may be due to
several factors, like the witness being not in a position for reasons beyond
control to speak the truth in the Court or due to negligence or ignorance or
some corrupt collusion. Time has become ripe to act on account of numerous experiences
faced by Courts on account of frequent turning of witnesses as hostile, either
due to threats, coercion, lures and monetary considerations at the instance of
those in power, their henchmen and hirelings, political clouts and patronage
and innumerable other corrupt practices ingeniously adopted to smother and
stifle truth and realities coming out to surface rendering truth and justice,
to become ultimate casualties. Broader public and societal interests require
that the victims of the crime who are not ordinarily parties to prosecution and
the interests of State represented by their prosecuting agencies do not suffer
even in slow process but irreversibly and irretrievably, which if allowed would
undermine and destroy public confidence in the administration of justice, which
may ultimately pave way for anarchy, oppression and injustice resulting in
complete breakdown and collapse of the edifice of rule of law, enshrined and
jealously guarded and protected by the Constitution.
comes the need for protecting the witness. Time has come when serious and
undiluted thoughts are to be bestowed for protecting witnesses so that ultimate
truth is presented before the Court and justice triumphs and that the trial is
not reduced to a mockery. Doubts are raised about the roles of investigating
agencies. Consequences of defective investigation have been elaborated in Dhanraj Singh @ Shera and Ors. v. State of Punjab (JT 2004(3) SC 380). It was
observed as follows:
"In the case of a defective
investigation the Court has to be circumspect in evaluating the evidence. But
it would not be right in acquitting an accused person solely on account of the
defect; to do so would tantamount to playing into the hands of the
investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995 (5) SCC 518).
In Paras Yadav and Ors. v. State of Bihar (1999 (2) SCC 126) it was
held that if the lapse or omission is committed by the investigating agency or
because of negligence the prosecution evidence is required to be examined de
hors such omissions to find out whether the said evidence is reliable or not.
contaminated conduct of officials should not stand on the way of evaluating the
evidence by the courts; otherwise the designed mischief would be perpetuated
and justice would be denied to the complainant party.
As was observed in Ram Bihari Yadav v. State of
Bihar and Ors. (1998 (4) SCC 517) if
primacy is given to such designed or negligent investigation, to the omission
or lapses by perfunctory investigation or omissions, the faith and confidence
of the people would be shaken not only in the Law enforcing agency but also in
the administration of justice. The view was again re-iterated in Amar Singh v. Balwinder Singh and
Ors. (2003 (2) SCC 518)".
State has a definite role to play in protecting the witnesses, to start with at
least in sensitive cases involving those in power, who has political patronage
and could wield muscle and money power, to avert trial getting tainted and derailed
and truth becoming a casualty. As a protector of its citizens it has to ensure
that during a trial in Court the witness could safely depose truth without any
fear of being haunted by those against whom he had deposed. Every State has a
constitutional obligation and duty to protect the life and liberty of its
citizens. That is the fundamental requirement for observance of the rule of
law. There cannot be any deviation from this requirement because of any
extraneous factors like, caste, creed, religion, political belief or ideology.
Every State is supposed to know these fundamental requirements and this needs
no retaliation. We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments like
the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the
"TADA Act") have taken note of the reluctance shown by witnesses to
depose against people with muscle power, money power or political power which
has become the order of the day. If ultimately truth is to be arrived at, the
eyes and ears of justice have to be protected so that the interests of justice
do not get incapacitated in the sense of making the proceedings before Courts
mere mock trials as are usually seen in movies.
measures to emphasise prohibition against tampering
with witness, victim or informant have become the imminent and inevitable need
of the day. Conducts which illegitimately affect the presentation of evidence
in proceedings before the Courts have to be seriously and sternly dealt with.
should not be any undue anxiety to only protect the interest of the accused.
That would be unfair, as noted above, to the needs of the society. On the
contrary, efforts should be to ensure fair trial where the accused and the
prosecution both get a fair deal. Public interest in the proper administration
of justice must be given as much importance if not more, as the interest of the
Individual accused. In this courts have a vital role to play.
aforesaid background, we direct as follows:
Zahira is sentenced to undergo simple
imprisonment for one year and to pay cost of Rs.50,000/- and in case of default
of payment within two months, she shall suffer further imprisonment of one
Her assets including bank deposits
shall remain attached for a period of three months. The Income Tax Authorities
are directed to initiate proceedings requiring her to explain the sources of
acquisition of various assets and the expenses met by her during the period
from 1.1.2002 till today. It is made clear that any observation made about her
having not satisfactorily explained the aforesaid aspects would not be treated
as conclusive. The proceedings shall be conducted in accordance with law.
Chief Commissioner, Vadodara is directed to take
immediate steps for initiation of appropriate proceedings.
shall be open to Income tax authorities to direct continuance of the attachment
in accordance with law. If so advised, the Income Tax Authorities shall also
require Madhu Srivastava and
Bhattoo Srivastava to
explain as to why the claim as made in the VCD of paying money shall not be
further enquired into and if any tangible material comes to surface,
appropriate action under the Income Tax Law shall be taken notwithstanding the
findings recorded by the Inquiry Officer that there is no acceptable material
to show that they had paid money, as claimed, to Zahira.
We make it clear that we are not directing initiation of proceedings as such,
but leaving the matter to the Income Tax Authorities to take a decision. The
Trial Court shall decide the matter before it without being influenced by any
finding/observation made by the Inquiry Officer or by the fact that we have
accepted the report and directed consequential action.
applications are accordingly disposed of.