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CASE NO.:

Appeal (crl.) 446-449 of 2004

PETITIONER:

Zahira Habibullah Sheikh & Anr

RESPONDENT:

State of Gujarat & Ors

DATE OF JUDGMENT: 08/03/2006

BENCH:

ARIJIT PASAYAT & H.K. SEMA

JUDGMENT:

J U D G M E N T

CRIMINAL MIS. PETITION NOS.6658-6661 OF 2004

IN

CRIMINAL APPEAL NOS. 446-449 OF 2004

ARIJIT PASAYAT, J.

The 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:

"Stanza 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

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did not accept the prayer and that is why the appeals came to

be filed in this Court. By judgment dated 12th April, 2004 in

Zahira Habibullah Sheikh & Anr. v. State of Gujarat and Ors.

[(2004) 4 SCC 158], the following directions were given:

"75. 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 jurisdiction.

78. Since 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.

79. 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.

While 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:

Order 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.

Allegations are made by Mr. P.N.Lekhi, learned

senior counsel appearing for Zahira

Habibullah Sheikh that she was being

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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

(a) 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 (b) if the answer to (a)

is in the affirmation, who the person/persons

is (or) are.

For the purpose of inquiry, he may take assistance of a police officer of the rank o

f 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 consideration.

The 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.

We make it clear that the pendency of the

inquiry will not be a ground for seeking

adjournment in the pending trial.

We 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.

The matter shall be placed for consideration

of the Report to be submitted, after three

months.

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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.

Criminal 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.

Since, 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.

Put up 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 follows:

(1) The FIR dated 2.3.2002

(2) Memorandum dated 21.3.2002 before the

Chairman, NHRC

(3) Statements made on 11.5.2002 and 20.7.2002

before the concerned Citizen Tribunal and Nanavati

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Commission respectively

(4) Statements dated 7.7.2003 of the Press Conference

in Mumbai

(5) Statement dated 11.7.2003 before NHRC

(6) Plain copy of the affidavit dated 8.9.2003 attested

by Notary submitted before this Court as additional

document in SLP(Crl.) 3770/2003

(7) Statement recorded on 16.12.2003 at the Santa

Cruz Police Station, Mumbai

(8) Affidavit dated 3.11.2004 submitted before

Collector, Vadodara

(9) Affidavit dated 31.12.2004 submitted before this

Court

(10) Affidavits dated 20.3.2005, 12.4.2005 and

24.4.2005 before the Inquiry Officer.

The 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.

The 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:

"1. 'Rs.65,000/- Sale consideration of one

house sold in the month of November, 2001

2. Rs.40,000/(Approx.)- Sale consideration of

two-three wheelers sold to Scrap dealer

(Kabadi)

3. Rs.30,000/- Received from Insurance

Company by mother on account of damages to

motor cycle.

4. Rs.32,000/- Sale consideration of scrap of

machinery of Bakery

5. Rs.1,50,000/-(Approx.) Sale consideration of

scrap of Bakery

6. Rs.50,000/- Compensation for damages of

house received from Government through

cheque in favour of her mother

7. Rs.50,000/- Received by mother as

& Rs.40,000/- compensation of her sister's

death from the Government through cheque

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8. 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.

9. Rs.55,000/- Investment in a house in Ekta

Nagar in the name of Ms. Zahira Sheikh

10. Rs.20,000

& Rs.25,000/- Investment in two small plots

of 15x30ft. each by her brother Nasibullah

11. Rs.45,000/- Deposited by her in the Bank

Account No.11348 with Bank of Baroda,

Nawapura Branch at Vadodara

12. Rs.52,045/- Deposits in a joint account

No.16754 with her brother, Nasibullah with

Syndicate Bank, Goddev Branch, Bhayander

13. Rs.1,37,384/- Deposits in her brother's

account No.16667 with Syndicate Bank,

Goddev Branch, Bhayander

14. Rs.1,42,256/- Deposits in her mother's

account No.16669 with Syndicate Bank,

Goddev Branch, Bhayander.

The 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.

Two charts have been prepared by the Inquiry Officer

showing the discrepancies. They read as follows:

CHART NO. 1

Receipts

S. No.

Amount

Remarks

1.

Rs. 50,000/- &

Rs. 40,000/-

Received as compensation of her

sister's death

2.

Rs. 25,000/-

Received as damages of the

house.

3.

Rs. 30,000/-

Received from insurance

company against damages of

motorcycle.

4.

Rs. 18,800/-

Received as sale price of one

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three-wheeler

5.

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

Investments:

S. No.

Amount

Remarks

1.

Rs. 45,000/-

Deposited by her in the Bank

Account No. 11348 with Bank of

Baroda, Nawapura Branch at

Vadodara.

2.

Rs. 52,045/-

Deposits in a joint account No.

16754 with her brother,

Nasibullah with Syndicate Bank,

Goddev Branch, Bhayander.

3.

Rs.1,37,384/-

Deposits in her brother's

account No. 16667 with

Syndicate Bank, Goddev Branch,

Bhayander.

4.

Rs. 1,42,256/-

Deposits in her mother's account

No. 16669 with Syndicate Bank,

Goddev Branch, Bhayander.

5.

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.

6.

Rs. 60,000/-

Invested against a flat of Bombay

7.

Rs. 48,000/-

Deposited on 14.5.2003 with

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Bank account (A/c. No. 2037) of

Sh. Nafitullah.

8.

Rs. 30,727/-

Mother's account (A/c. No. 8881)

Total

Rs. 5,88,412/-

- Difference: Investments \026 Receipts Rs. 5,88,412 \026 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/-.

The Inquiry Officer recorded the following findings:

"In 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.

However, 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:

(1) The Inquiry Officer has tailored facts to fit into his

pre-conceived conclusions. There has been

deliberate omissions and distortion of facts.

(2) No cross examination of the witnesses whom the

Inquiry Officer has examined was permitted.

(3) There was no transparent procedure adopted and

the agreed procedure was never followed.

(4) 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.

(5) The Inquiry Officer appeared to be guided by Teesta

Setalwad. The conclusion that Zahira had

approached this Court for a fresh trial is wrong.

(6) The request for examining the Chairman, NHRC

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was not accepted without indicating any reason.

(7) 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.

(8) 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.

(9) 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 issues.

On the 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.

On 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.

At the 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

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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 context.

The 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.

Grievance 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.

The other pleas which have been enumerated above do

not in any way affect credibility or acceptability of the report.

The 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.

Above 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.

Whatever be the fate of the trial before the Court at

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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 view.

During 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.

Parliament 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.

Section 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/-.

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

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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 gains ground.

Judges 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).

By not 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".

It was 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".

As has 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 their roles.

In this context, reference may be made to Section 311 of

the Code which reads as follows:

"311. Power to summon material witness, or

examine person present.

Any 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 (a) to summon any

one as a witness, or (b) to examine any person present in

Court, or (c) to recall and re-examine any person whose

evidence has already been recorded. On the other hand, the

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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.

It is 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 facts.

The 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.

As indicated above, the Section is wholly discretionary.

The 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 Judge.

The object of the Section 311 is to bring on record

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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).

Right 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.

In 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 :

"The 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 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."

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 :

"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

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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.

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 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'.

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. 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.

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

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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.

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 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.

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 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.

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

overhasty stage-managed, tailored and partisan trial.

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

justice.

"Witnesses" 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

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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.

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 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:

"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. (1995 (5) SCC 518).

6. 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.

The 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.

7. 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)".

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 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

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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.

Legislative 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.

There 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.

In the aforesaid background, we direct as follows:

(1) 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 year;

(2) 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.

The Chief Commissioner, Vadodara is directed to take

immediate steps for initiation of appropriate proceedings.

It 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.

The applications are accordingly disposed of.