National Human Rights
Commission Vs. State of Gujarat & Ors.  INSC 870 (1 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITON (CRL.) NO. 109 of 2003
National Human Rights Commission ..Petitioner versus State of Gujarat and Ors.
..Respondents With Crl.M.P. No.10719/2003 in WP (Crl.) No.109/2003 Crl.M.P. No.
7078/2003 in WP (Crl.) No.109/2003 Crl.M.P. No. 7827/2003, 8193/2003 &
8194/2003 in WP (Crl.) No.109/2003 Crl.M.P. No. 11668/2003 in WP (Crl.)
No.109/2003 Crl.M.P. No. 11689/2003 in WP (Crl.) No.109/2003 Crl.M.P. No.
4782/2003 in WP (Crl.) No.109/2003 Crl.M.P. No. 3741/2004 & 3742/2004 in WP
(Crl.) No.109/2003 Crl.M.P. No. 6864/2004 in WP (Crl.) No.109/2003 Crl.M.P. No.
9236/2005 in WP (Crl.) No.109/2003 Crl.M.P. No. 6767/2006 in WP (Crl.)
No.109/2003 Crl.M.P. No. 7824/2007 in WP (Crl.) No.109/2003 W.P. (Crl.)
No.D.17953/2003 TP (Crl.) Nos. 194-202 and 326-329/2003 SLP (Crl.) No.7951/2002
SLP (Crl.) No.4409/2003 SLP(Crl.) No.5309/2003 WP(Crl.) No.216/2003 TP(Crl.)
No. 66-72/2004 TP(Crl.) No.43 of 2004 WP(Crl.) No. 118 of 2003 TP(Crl.) Nos.
233-234/2004 WP (Crl.) Nos. 37-52/2002 WP (Crl.) No.284/2003 Crl.M.P.
No.6767/2006 in Crl.M.P.Nos. 3741-3742/2004 in WP(Crl.)No.109/2003 Crl.M.P.
No.4485/2006 in SLP (Crl.) No.3770/2003
Dr. ARIJIT PASAYAT,
order dated 26.3.2008 in this group of cases this Court had directed the
Gujarat Government to constitute a five members Special Investigation Team (in
short the `SIT') to be headed by Mr. R.K. Raghavan, former Director of the
Central Bureau of Investigation to undertake inquiry/investigation including
further investigation in nine cases. It was further directed that the SIT shall
submit its report within a particular time.
The State Government
issued a Notification dated 1.4.2008 constituting the SIT. On 11.2.2009 the SIT
has submitted its consolidated report. It has indicated therein that since its
constitution the SIT has made considerable progress in respect of each of the
nine cases and the current status is as follows:
1: Godhra Railway
Police Station Cr. No 09/02 Applications received 63 Witnesses examined 183(125
old & 61 new) Number arrested -- Charge sheets filed - Stage of
investigation Completed 2: Khambholaj Police Station Cr. No 23/02 Applications
received 17 Witnesses examined 85(30 old & 55 new) Number arrested Court is
requested to issue process against 16 accused Charge sheets filed Amended
separate charge sheet-1 Stage of investigation Completed 3: Khambholaj Police
Station Cr. No 27/02 Applications received 17 Witnesses examined 39 Number
arrested 3 - Charge sheets filed - Stage of investigation Completed 4: Naroda
Police Station Cr. No 98/02 Applications received 06 Witnesses examined 450
Number arrested 20 Chargesheets filed 02 Stage of investigation Nearly complete
5: Naroda Police Station Cr. No 100/02 Applications received 88 Witnesses
examined : 341 Number arrested 17 Chargesheets filed 01 Stage of investigation
Nearly complete 4
Police Station Cr. No 67/02 Applications received 59 Witnesses examined 227
Number arrested 18 Chargesheets filed 03 Stage of investigation. Nearly
complete 7: Visnagar Police Station Cr. No 60/02 Applications received 05
Witnesses examined 42 Number arrested 03 Chargesheets filed 01 Stage of
investigation Nearly complete
8. Vijapur Police
Station Cr.No.46/02 Applications received 13 Witnesses examined 39 Number
arrested 21 Chargesheets filed 02 Stage of investigation Completed
9. Prantij Police
Station Cr.No.100/02 Applications received 10 Witnesses examined 24 (14 old and
10 new) Number arrested - Chargesheets filed - Stage of investigation Completed
separate sealed covers the IO's report in each case accompanied by the
Supervising IGP and the Chairman's comments were submitted. The other members
of the team are Shri C.B. Satpathy, Smt. Geetha Johri, Shri Shivanand Jha and
Shri Ashish Bhatia. The last three are officers of the Indian Police Service
from the Gujarat cadre.
to the directions given by this Court copies of the report were supplied to
learned Amicus Curiae and learned counsel for the State of Gujarat. Suggestions
have been given by learned Amicus Curiae, learned counsel for the State and
some of the parties in the proceedings.
important aspects need to be noted in these cases. Firstly, due to the efforts
of SIT, persons who were not earlier arrayed as accused have now been arrayed
as accused. From the details indicated above it appears that in most of the
cases a large number of persons have been additionally made accused. Besides
this, a large number of witnesses were also examined in each case. This goes to
show the apparent thoroughness with which the SIT has worked. Therefore, the
SIT shall continue to function until the completion of trial in all the cases
and if any further inquiry/investigation is to be done the same can be done as
provided in law, more particularly, under Section 173 (8) of the Code of
Criminal Proceudre,1973 (in short the `Code').
few important aspects concerning the cases need to be noted.
(1) Fair trial (2)
Modalities to ensure that the witnesses depose freely and in that context the
need to protect the witnesses from interference by person(s) Connected with it
is the protection of victims who in most cases are witnesses.
(3) Able assistance
to court by competent public prosecutors.
(4) Further role of
far as fair trial is concerned the discovery and vindication and establishment
of truth are certainly the main purposes of courts of justice.
They are the
underlying objects for the existence of the courts of justice.
importance of the witnesses in a criminal trial does not need any reiteration.
In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Ors. (2006 (3)
SCC 374) it was observed as under:
"22. The 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 the justice delivery system
stands. People for whose benefit the courts exist 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: `The Judge
was biased.' " (Per Lord Denning, M.R. in Metropolitan Properties Co. Ltd.
v. Lannon, All ER p. 310 A.) The perception may be wrong about the Judge's
bias, but the Judge concerned must be careful to see that no such impression
gains ground. Judges like Caesar's wife should be above suspicion (Per Bowen, L.J.
in Leeson v. General Council of Medical Education.) xx xx xx
24. It was
significantly said that law, to be just and fair has to be seen devoid of flaw.
It has to keep the promise to justice and it cannot stay petrified and sit
nonchalantly. The law should not be seen to sit by limply, while those who defy
it go free and those who seek its protection lose hope (see Jennison v. Baker).
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." xx xx xx
30. Right from the
inception of the judicial system it has been accepted that discovery,
vindication and establishment of truth are the main purposes underlying the
existence of the 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.
31. In 1846, in a
judgment which Lord Chancellor Selborne would later describe as "one of
the ablest judgements of one of the ablest judges who ever sat in this
Court", Vice-Chancellor Knight Bruce said (ER p.957):
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 9 means, not every channel is or ought to be open to them. The
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."
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."
32. Restraints on the
processes for determining the truth are multifaceted. 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:
"It 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 at every step."
33. The principle of
fair trial now informs and energises many areas of the law. It is reflected in
numerous rules and practices.
It is a constant,
ongoing development process continually adapted to new changing circumstances,
and exigencies of the situation--peculiar at times and related to the nature of
crime, persons involved--directly or operating behind, social impact and societal
needs and even so many powerful balancing factors which may come in the way of
administration of criminal justice system.
34. As 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:
"It is desirable
that the requirement of fairness be separately identified since it transcends
the context of more particularised 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
35. 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 affects the whole
community as a community and is harmful to 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. Interest of society is not to be treated completely with disdain
and as persona non grata. The courts have always been considered to have an
overriding 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". Due 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. The 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.
36. The 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 society at large and
the victims or their family members and relatives. Each 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
an 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.
37. A 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 in 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.
38. Failure 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 over hasty stage- managed, tailored and partisan trial.
39. The 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
primacy 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 the 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 the 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 the 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. There comes the need for protecting the witness. Time has come
when serious and undiluted thoughts are to be bestowed for protecting witnesses
so that the 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 Dhanaj Singh v. State of Punjab. It was observed as follows:
(SCC p.657, paras 5-7) "5. 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.)
6. In Paras Yadav v.
State of Bihar 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 dehors such omissions to find out whether the said
evidence is reliable or not, the contaminated 14 conduct of officials should
not stand in the way of evaluating the evidence by the courts; otherwise the
designed mischief would be perpetuated and justice would be denied to the
7. As was observed in
Ram Bihari Yadav v. State of Bihar 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 reiterated in Amar Singh v. Balwinder Singh."
41. The State has a
definite role to play in protecting the witnesses, to start with at least in
sensitive cases involving those in power, who have 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 the court the witness could safely depose the 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 (sic repetition). We can only say this with regard to the
criticism levelled against the State of Gujarat.
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 the 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 the courts mere mock trials as are usually seen in
8. It is an
established fact that witnesses form the key ingredient in a criminal trial and
it is the testimonies of these very witnesses, which establishes the guilt of
the accused. It is, therefore, imperative that for justice to be done, the
protection of witnesses and victims becomes essential, as it is the reliance on
their testimony and complaints that the actual perpetrators of heinous crimes
during the communal violence can be brought to book.
9. Vide an order
dated 8th August 2003 in the matter of National Human Rights Commission v.
State of Gujarat, this Court regretted that "no law has yet been enacted,
not even a scheme has been framed by the Union of India or by the State
Government for giving protection to the witnesses."
10. Further, in the
case of Zahira v. State of Gujarat (2004 (4) SCC 158), while transferring what
is known as the `Best Bakery Case', to Mumbai vide its order dated 12th April,
2004, directed: "The State of Gujarat shall also ensure that the witnesses
are produced before the concerned court, whenever they are required to attend
them, so that they can depose freely without any apprehension of threat or
coercion from any person. In case any witness asks for protection, the State of
Maharashtra shall also provide such protection as deemed necessary, in addition
to the protection to be provided for by the State of Gujarat. "
11. The Law
Commission in its 14th Report (1958) referred to 'witness- protection', but
that was in a limited sense. That related to proper arrangements being provided
in the Courthouse, the scales of travelling allowance, their daily allowance
12. The National
Police Commission Report (1980) again dealt with the inadequacy of daily
allowance for the witnesses, but nothing more.
13. The 154th Report
of the Law Commission 1996 contained a chapter on Protection and facilities to
Witnesses. The recommendations mostly related to allowances and facilities to
be made available for the witnesses.
However, one of the
recommendations was: "Witnesses should be protected from the wrath of the
accused in any eventuality". But, Commission had not suggested any measure
for the physical protection of witnesses.
14. The 178th Report
of Law Commission, again, referred to the fact of witness turning hostile, and
the recommendations were only to prevent witnesses from turning hostile. The
report suggested an amendment to insert Section 164-A to the Code.
15. The Law
Commission of India's 198th Report has also voiced similar concerns and has
categorically stated "it is accepted today that WIP is necessary in the
case of all serious offences wherein there is danger to witnesses and it is not
confined to cases of terrorism or sexual offences"
16. Under the English
law, threatening a witness from giving evidence, is contempt of Court. So also
any act of threat or revenge against a witness after he has given evidence in
Court, is also considered as contempt. In 1994 the U.K. Government enacted a
law known as Criminal Justice and Public Order Act, 1994 which provides for
punishment for intimidation of witnesses. Section 51 of the Act not only
protects a person who is actually going to give evidence at a trial, but also
protects a person who is helping with or could help with the investigation of a
crime. Under a similar law in Hong-Kong, Crimes Ord. (Cap. 200) HK, if the
threat or intimidation is directed even as against a friend or relative of the
witness, that becomes a punishable offence
17. In the United
States, the Organized Crime Control Act, 1970 and later the Comprehensive Crime
Control Act, 1984 authorized the Witness Security Programme. The Witness
Security Reform Act, 1984 provides for relocation and other protection of a
witness or a potential witness in an official proceeding concerning an
organised criminal activity or other serious offence. Protection may also be
provided to the immediate family of, or a person closely associated with, such
witness or potential witness if the family or person may also be endangered on
account of the participation of the witness in the judicial proceeding.
18. The Attorney
General takes the final decision whether a person is qualified for protection
from bodily injury and otherwise to assure the health, safety and welfare of
that person. In a large number of cases, witnesses have been protected,
relocated and sometimes even given new identities. The Programme assists in
providing housing, medical care, job training and assistance in obtaining
employment and subsistence funding until the witness becomes self-sufficient.
The Attorney General shall not provide protection to any person if the risk of
danger to the public, including the potential harm to innocent victims,
overweighs the need for that person's testimony. A similar programme is in
Canada under Witness Protection Act, 1996. The purpose of the Act is "to
promote law enforcement by facilitating the protection of persons who are
involved directly or indirectly in providing assistance in law enforcement
matters" [Section 3]. Protection given to a witness may include
relocation, accommodation and change of identity as well as counseling and
financial support to ensure the security of the protectee or to facilitate his
becoming self-sufficient. Admission to the Programme is determined by the
Commissioner of Police on a recommendation by a law enforcement agency or an
.international criminal court or tribunal [Sections 5 and 6]. The extent of
protection depends on the nature of the risk to the security of the witness,
the value of the evidence and the importance in the matter.
19. The Australian
Witness Protection Act, 1994 establishes the National Witness Protection
Programme in which (amongst others) the Commissioner of the Australian Federal
Police arranges or provides protection and other assistance for witnesses
[Section 4]. The witness must disclose a wealth of information about himself
before he is included in the Programme. This includes his outstanding legal
obligations, details of his criminal history, details of his financial
liabilities and assets etc. [Section 7]. The Commissioner has the sole
responsibility of deciding whether to include a witness in the Programme.
20. The Witness
Protection Act, 1998 of South Africa provides for the establishment of an
office called the Office for Witness Protection within the Department of
Justice. The Director of this office is responsible for the protection of
witnesses and related persons and exercises control over Witness Protection
Officers and Security Officers [Section 4]. Any witness who has reason to
believe that his safety is threatened by any person or group or class of
persons may report such belief to the Investigating Officer in a proceeding or
any person in-charge of a police station or the Public Prosecutor etc. [Section
7) and apply for being placed under protection. The application is then
considered by a Witness Protection Officer who prepares a report, which is then
submitted to the Director [Section 9]. The Director, having due regard to the report
and the recommendation of the Witness Protection Officer, takes into account
the following factors, inter-alia, [Section 10] for deciding whether a person
should be placed under protection or not:
(i) The nature and
extent of the risk to the safety of the witness or related person.
(ii) The nature of
the proceedings in which the witness has given evidence or may be required to
21. The importance,
relevance and nature of the evidence, etc, in European countries such as Italy,
Germany and Netherlands, the Witness Protection Programme covers organised
crimes, terrorism, and other violent crimes where the accused already know the
22. But it would not
be proper to give any general directions for witness protection. It would
primarily depend upon the fact situation of each case.
difficulties in effectively implementing any witness protection scheme cannot
be lost sight of. We are considering that aspect focusing on the fact situation
of the present cases.
23. The need for
setting up separate victim and witness protection units in the trial of mass
crimes has been acknowledged in the setting up of international tribunals to
deal with them. The International Criminal Tribunal for Rwanda has formulated
rules for protection of victims and witnesses. Similar provisions exist in the
Statute for the creation of an International Criminal Court (in short `ICC').
In most of the cases, witnesses are the victims of the crime. Most vulnerable
amongst them are women and children. Under the existing system they are mere
pawns in a criminal trial and there is very little concern for protecting their
real interests. The protection is necessary so that there is no miscarriage of
justice; but protection is also necessary to restore in them, a sense of human
24. The Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power was
adopted by the United Nations General Assembly in resolution 40/34 of 29th
November, 1985. According to the first paragraph of this declaration, victims
of crime are described as persons who, individually or collectively, have
suffered harm, including physical or mental injury, emotional suffering,
economic loss or substantial impairment of their fundamental rights, through
acts or omissions that are in violation of criminal laws operative in Member
States, including those laws proscribing criminal abuse of power. It is they
who need protection.
25. This is
essentially to obliterate the apprehension that the public prosecutor is not
fair in court or is not conducting the prosecution in the proper manner. The
State of Gujarat shall appoint public prosecutors in each of the cases in
consultation with the SIT which opinion shall be final and binding on the State
26. It needs to be
emphasized that the rights of the accused have to be protected. At the same
time the rights of the victims have to be protected and the rights of the
victims cannot be marginalized. Accused persons are entitled to a fair trial
where their guilt or innocence can be determined. But from the victims'
perception the perpetrator of a crime should be punished.
They stand poised
equally in the scales of justice.
27. In order to
ensure that the trials are conducted in a fair manner and within the realm of
protecting the rights of the victims it is important that the decorum of the
court is maintained at all times. In order to balance the need for a public
trial with the need to ensure that victims/witnesses are not intimidated within
the court rooms, it is necessary for the court to impose reasonable
restrictions on the entry of persons into the court room.
28. The role of
public prosecutors in ensuring a fair trial is of paramount importance.
29. This Court in
S.B. Shahane and Ors. v. State of Maharashtra and Another, 1995 Supp (3) SCC 37
had stressed on the desirability of separation of prosecution agency from
investigation agency. It was observed that such Assistant Public Prosecutors
could not be allowed to continue as personnel of the Police Department and to
continue to function under the control of the head of the Police Department.
State Governments were directed to constitute a separate cadre of Assistant
Public Prosecutors by creating a separate prosecution Department making its
head directly responsible to the State Government.
30. Many commonwealth
countries like Australia have a Commonwealth Director of Public Prosecutions,
which was set up by the Director of Public Prosecutions Act 1983 and started
operations in 1984. The nine States and territories of Australia also have
their own DPPs. Ultimate authority for authorizing prosecutions lies with the
Attorney General. However, since that is a political post, and it is desired to
have a non-political (public service) post carry out this function in most
circumstances, the prosecutorial powers of the AG are normally delegated to the
DPP. However, in South Australia the AG may direct the DPP to prosecute or not
to prosecute. This is a very rare occurrence. It is common for those who hold
the office of Commonwealth or State DPP later to be appointed to a high
In Canada, each
province's Crown Attorney Office (Canada) is responsible for the conduct of
criminal prosecutions. In Ontario, local Crown Attorney in the Criminal Law
Division is in charge of criminal cases. Only British Columbia, Nova Scotia and
Quebec (a civil code jurisdiction) have a Director of Public Prosecutions
office. Recent legislation passed by Parliament split the conduct of federal
prosecutions from the Department of Justice (Canada), and created the Office of
the Director of Public Prosecutions (officially to be called as Public
Prosecution Service of Canada). This legislation came into effect December 12,
2006.The Director of Public Prosecutions of Hong-Kong, China heads the
prosecutions Division of the Department of Justice, which is responsible for
prosecuting trials and appeals on behalf of the Hong Kong Special Administrative
Region, providing legal advice to law enforcement agencies, acting on behalf of
the Secretary for Justice in the institution of criminal proceedings, and
providing advice and assistance to bureaux and departments in relation to any
criminal law aspects of proposed legislation. The DPP is superintended by the
Secretary for Justice, who is also accountable for the decisions of the DPP.
The Director of Public Prosecutions in the Republic of Ireland has been
responsible for prosecution, in the name of the People, of all indictable
criminal offences in the Republic of Ireland since the enactment of the
Prosecution of Offences Act 1974. Before 1974, all crimes and offences were
prosecuted at the suit of the Attorney General. The DPP may also issue a
certificate that a case should be referred to the Special Criminal Court; a
juryless trial court usually reserved for terrorists and organized criminals.
In South Africa public prosecutions are conducted by an independent National
Director of Public Prosecutions (NDPP). The NDPP is supported by a Chief
Executive Officer, Marion Sparg, Deputies, regional Directors of Public
Prosecutions (DPP's), and several Special Directors. The National Director is
also head of the controversial Directorate of Special Operations (DSO) -
commonly known as the Scorpions - which deals with priority and organized
crime. In 2005, the unit instituted proceedings against the country's Deputy
President, Jacob Zuma, leading to his dismissal. In England and Wales, the
office of Director of Public Prosecutions was first created in 1880 as part of
the Home Office, and had its own department from 1908. The DPP was only
responsible for the prosecution of a small number of major cases until 1986
when responsibility for prosecutions was transferred to a new Crown Prosecution
Service with the DPP as its head. He/she is appointed by the Attorney General
for England and Wales. In Northern Ireland a similar situation existed, and the
DPP now heads the Public Prosecution Service for Northern Ireland.
31. The Law
Commission in 1958 had recommended that a Director of Prosecutions be set up
having its own cadre, though this recommendation was not included in the Code
then. Again in 1996 the Law Commission in its 154th report identified as Independent
Prosecuting Agency as one of the several areas within the Code which required
redesigning and restructuring.
The Law Commission
supported most of the proposed amendments to the Code as contained in the
proposed Code of Criminal Procedure Amendment Bill 1994. Recommendations
related to the structure of a Directorate of Prosecutions at the State level,
to be adopted by a State Government in the event it decided to set up a cadre
of prosecutors. The Law Commission further recommended that the structure of
State level Directorates of Prosecution be given statutory status through an
amendment to the Code.
32. Despite the
absence of such a requirement and inadequacy of the Provisions in the Code a
number of states mainly, Delhi, Andhra Pradesh, Bihar, Goa, Himachal Pradesh,
Karnataka, Kerala, Madhya Pradesh, Orissa, Tamil Nadu and Uttaranchal,
established a Directorate of Prosecution.
33. By an amendment
in 2006, Section 25A was inserted in the Code, which categorically legislated
for the creation of a Directorate of Prosecution in every state.
Directorate of Prosecution.-(1) The State Government may establish a
Directorate of Prosecution consisting of a Director of Prosecution and as many
Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be
eligible . to be appointed as a Director of Prosecution or a Deputy Director of
Prosecution, only if he has been in practice as an advocate for not less than
ten years and such appointment shall be made with the concurrence of the Chief
Justice of the High Court.
(3) The Head of the
Directorate of Prosecution shall be the Director of Prosecution, who shall
function under the administrative control of the Head of the Home Department in
(4) Every Deputy
Director of Prosecution shall be subordinate to the Director of Prosecution.
(5) Every Public
Prosecutor, Additional Public Prosecutor and Special Public Prosecutor
appointed by the State Government under sub-section (1), or as the case may be,
sub-section (8), of Section 24 to conduct cases in the High. Court shall be
subordinate to the Director of Prosecution.
(6) Every Public
Prosecutor, Additional Public Prosecutor and Special Public Prosecutor
appointed by the State Government under sub-section (3), or as the case may be,
sub-section (8), of Section 24 to conduct cases in District Courts and every
Assistant Public Prosecutor appointed under sub-section (1) of Section 25 shall
be subordinate to the Deputy Director of Prosecution.
(7) The powers and
functions of the Director of Prosecution and the Deputy Directors of
Prosecution and the areas for which each of the Deputy Directors of Prosecution
have been appointed shall be such as the State Government may, by notification,
(8) The provisions of
this section shall not apply to the Advocate General for the State while
performing the functions of a Public Prosecutor.
34. As noted above,
the role of victim in a criminal trial can never be lost sight of. He or she is
an inseparable stakeholder in the adjudicating process.
35. United Nations
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, was adopted by the General Assembly through a resolution 40/34 of 29th
November 1985. Articles 4 and 5 of the above mentioned United Nations
Declaration categorically states:
4. Victims should be
treated with compassion and respect for their dignity. They are entitled to
access to the mechanisms of justice and to prompt redress, as provided for by
national legislation, for the harm that they have suffered.
5. Judicial and
administrative mechanisms should be established and strengthened where
necessary to enable victims to obtain redress through formal or informal
procedures that are expeditious, fair, inexpensive and accessible. Victims should
be informed of their rights in seeking redress through such mechanisms.
36. The appointment
of Prosecutors to these trials has to be made in consultation with SIT, whose
opinion would be binding on the state government.
37. United Nations
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, adopted by the General Assembly through a resolution 40/34 of 29th
November 1985categorically through Section 6 (b) provides:
responsiveness of judicial and administrative processes to the needs of victims
should be facilitated by:
(b) Allowing the
views and concerns of victims to be presented and considered at appropriate
stages of the proceedings where their personal interests are affected, without
prejudice to the accused and consistent with the relevant national criminal
38. In the United
States of America, the existing Crime Victims Rights Act of 2004, categorically
through section 3771(4) from chapter 237 provides for "the right to be
heard at any public proceeding involving release, pleas or sentencing".
39. This Court had
held in U.P.S.C. v. S. Papiah (1997) 7 SCC 614 that a closure report by the
Prosecution cannot be accepted by the court without hearing the informant.
Para 9-There can
therefore, be no doubt that when, on a consideration of the report a made by
the officer-in-charge of a police station under Section 2(i) of Section 173 the
Magistrate is not inclined to take cognizance of the offence and issue process,
the informant must be given an opportunity of being heard so that he can make
his submissions to persuade the magistrate to take cognizance of the offence
and issue process.
We are accordingly of
the view that in a case where the Magistrate to whom the report is forwarded
under sub section (2) (i) of Section 173 decides not to take cognizance of the
offence and to drop the proceeding or takes the view that there is no
sufficient ground for proceeding against some of the persons mentioned in the
first information report, the Magistrate must give notice to the informant and
provide him an opportunity to be heard at the time of the consideration of this
40. This position was
illuminatingly stated in Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968 SC
41. In J.K.
International v. State Government of NTC (2001)3 SCC 462, this Court had held
"A person at
whose behest an investigation is lunched by the police is not altogether wiped
out of the scenario of the trial merely because the investigation was taken
over by the police and the charge sheet was laid by them."
42. Since the
protection of a witness is a paramount importance it is imperative that if and
when any witness seeks protection so that he or she can depose freely in court,
the same has to be provided. It is therefore directed that if a person who is
examined as a witness needs protection to ensure his or her safety to depose
freely in a court he or she shall make an application to the SIT and the SIT
shall pass necessary orders in the matter and shall take into account all the
relevant aspects and direct such police official/officials as it considers
proper to provide the protection to the concerned person. It shall be the duty
of the State to abide by the direction of the SIT in this regard. It is
essential that in riot cases and cases involving communal factors the trials
should be held expeditiously. Therefore, we request the Hon'ble Chief Justice
of Gujarat High Court to designate court(s) in each district where the trial of
the concerned cases are to be held. The Designated Courts shall take up the
cases in question. Taking into account the number of witnesses and the accused
persons and the volumes of evidence, it is open to the High Court to designate
more than one court in a particular district. Needless to say that these cases
shall be taken up by the Designated Court on a day-to-day basis and efforts
shall be made to complete the trial with utmost expedition. The SIT shall
furnish periodic reports if there is any further inquiry/investigation. The
State of Gujarat shall also file a status report regarding the constitution of
the courts in terms of the directions to be given by the Hon'ble Chief Justice
of the High Court within three months. The matter shall be listed further as
and when directed by this Court.
43. It appears that
in these petitions, which sought various reliefs including the transfer of some
of the ongoing trials, and a reinvestigation/further investigation into the
various incidents on the basis of which charges had been filed in these trials,
this Court, in the first instance, granted a stay of these ongoing trials.
44. The matter was
then heard from time to time and an order was then made on 26th March 2008
directing the establishment of the SIT, and for a further investigation into
these matters. The matters under investigation were those arising out of (a)
Crime No. 9/02 35 (b)Crime No. 100/02 (c) Crime No. 23/02 (d) Crime No. 98/02
(e) Crime No. 46/02 (f) Crime No. 67/02 (g) Crime No. 60/02 (h) Crime No. 26/02
(i) Crime No. 27/02
45. The reports of
the SIT, in respect of each of these cases have now been received. We have
considered the submissions made by Mr. Harish N. Salve, learned amicus curiae,
Mr. Mukul Rohtagi, learned counsel for the State, Ms. Indira Jaisingh and other
46. The following
directions are given presently:
charge sheets shall be filed in each of these cases as the SIT has found
further material and/or has identified other accused against whom charges are
now to be brought.
(ii) the conduct of
the trials has to be resumed on a day-to-day basis - keeping in view the fact
that the incidents are of January, 2002 and the trials already stand delayed by
seven years. The need for early completion of sensitive cases more particularly
in cases involving communal disturbances cannot be overstated.
(iii) the SIT has
suggested that the six "Fast Track Courts" be designated by the High
Court to conduct trial, on day-to-day basis, in the five districts as follows:
i) Ahmedabad (Naroda
Patia, Naroda Gam) ii) Ahmedabad (Gulbarg).
iii) Mehsana (for two
opened(British National case) v) Anand vi) Godhra Train Case (at Sabarmati
(iv) It is
imperative, considering the nature and sensitivity of these nominated cases,
and the history of the entire litigation, that senior judicial officers be
appointed so that these trials can be concluded as soon as possible and in the
most satisfactory manner. In order to ensure that all concerned have the
highest degree of confidence in the system being put in place, it would be
advisable if the Chief Justice of the High, Court of Gujarat selects the
judicial officers to be so nominated. The State of Gujarat has, in its
suggestions, stated that it has no objection to constitution of such "fast
track courts", and has also suggested that this may be left to Hon'ble the
Chief Justice of the High Court.
lawyers familiar with the conduct of criminal trials are to be appointed as
Public Prosecutors. In the facts and circumstances of the present case, such
public prosecutors shall be appointed in consultation with the Chairman of the
SIT. The suggestions of the State Government indicate acceptance of this
proposal. It shall be open to the Chairman of SIT to seek change of any Public
prosecutor so appointed if any deficiency in performance is noticed. If it
appears that a trial is not proceeding as it should, and the Chairman of the
SIT is satisfied that the situation calls for a change of the public prosecutor
or the appointment of an additional public prosecutor, to either assist or lead
the existing Public Prosecutor, he may make a request to this effect to the
Advocate General of the State, who shall take appropriate action in light of
the recommendation by the SIT.
(vi) If necessary and
so considered appropriate SIT may nominate officers of SIT to assist the public
prosecutor in the course of the trial.
Such officer shall
act as the communication link between the SIT and the Public Prosecutor, to
ensure that all the help and necessary assistance is made available to such
(vii) The Chairman of
the SIT shall keep track of the progress of the trials in order to ensure that
they are proceeding smoothly and shall submit quarterly reports to this court
in regard to the smooth and satisfactory progress of the trials.
(viii) The stay on
the conduct of the trials is vacated in order to enable the trials to continue.
In a number of cases bail had been granted by the High Court/Sessions Court
principally on the ground that the trials had been stayed. Wherever considered
necessary, the SIT can request the Public Prosecutor to seek cancellation of
the bails already granted.
(ix) For ensuring of
a sense of confidence in the mind of the victims and their relatives, and to
ensure that witnesses depose freely and fearlessly before the court:
In case of witnesses
following steps shall be taken:
(a) Ensuring safe
passage for the witnesses to and from the court precincts.
security to the witnesses in their place of residence wherever considered
necessary, and (c) Relocation of witnesses to another state wherever such a
step is necessary.
(x) As far as the
first and the second is concerned, the SIT shall be the nodal agency to decide
as to which witnesses require protection and the kind of witness protection
that is to be made available to such witness.
(xi) In the case of
the first and the second kind of witness protection, the Chairman, SIT could,
in appropriate cases, decide which witnesses require security of the
paramilitary forces and upon his request same shall be made available by
providing necessary security facilities.
(xii) In the third
kind of a situation, where the Chairman, SIT is satisfied that the witness
requires to be relocated outside the State of Gujarat, it would be for the
Union of India to make appropriate arrangements for the relocation of such
witness. The Chairman, SIT shall send an appropriate request for this purpose
to the Home Secretary, Union of India, who would take such steps as are
necessary to relocate the witnesses.
(xiii) All the
aforesaid directions are to be considered by SIT by looking into the threat
perception if any.
(xiv) The SIT would
continue to function and carry out any investigations that are yet to be
completed, or any further investigation that may arise in the course of the
trials. The SIT would also discharge such functions as have been cast upon them
by the present order.
(xv) If there are any
matters on which directions are considered necessary (including by way of
change of public prosecutors or witness protection), the Chairman of the SIT
may (either directly or through the Amicus Curiae) move this Court for
(xvi) It was apprehension
of some learned counsel that unruly situations may be created in court to
terrorise witnesses. It needs no indication that the Court shall have to deal
with such situations sternly and pass necessary orders. The SIT shall also look
into this area.
(xvii) Periodic three
monthly reports shall be submitted by the SIT to this Court in sealed covers.
47. List after four
(Dr. ARIJIT PASAYAT)