{"id":72833,"date":"2004-04-12T00:00:00","date_gmt":"2004-04-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/zahira-habibulla-h-sheikh-and-anr-vs-state-of-gujarat-and-ors-on-12-april-2004"},"modified":"2017-10-03T06:14:08","modified_gmt":"2017-10-03T00:44:08","slug":"zahira-habibulla-h-sheikh-and-anr-vs-state-of-gujarat-and-ors-on-12-april-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/zahira-habibulla-h-sheikh-and-anr-vs-state-of-gujarat-and-ors-on-12-april-2004","title":{"rendered":"Zahira Habibulla H Sheikh And Anr vs State Of Gujarat And Ors on 12 April, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Zahira Habibulla H Sheikh And Anr vs State Of Gujarat And Ors on 12 April, 2004<\/div>\n
Author: J Arijit Pasayat<\/div>\n
Bench: Doraiswamy Raju, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (crl.)  446-449 of 2004\n\nPETITIONER:\nZahira Habibulla H Sheikh and Anr.\t\t\t\n\nRESPONDENT:\nState of Gujarat and Ors. \t\t\t\t\n\nDATE OF JUDGMENT: 12\/04\/2004\n\nBENCH:\nDORAISWAMY RAJU & ARIJIT PASAYAT \n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP(Crl.)Nos. 538-541\/2004)
\nWITH
\nCRIMINAL APPEAL NOS.450-452\/2004
\n(Arising out of SLP (Crl.)Nos. 1039-1041\/2004)<\/p>\n
ARIJIT PASAYAT,J
\n\tLeave granted.\n<\/p>\n
\tThe present appeals have several unusual features and
\nsome of them pose very serious questions of far reaching
\nconsequences. The case is commonly to be known as “Best
\nBakery Case”. One of the appeals is by Zahira who claims to
\nbe an eye-witness to macabre killings allegedly as a result
\nof communal frenzy. She made statements and filed affidavits
\nafter completion of trial and judgment by the trial Court,
\nalleging that during trial she was forced to depose falsely
\nand turn hostile on account of threats and coercion. That
\nraises an important issue regarding witness protection
\nbesides the quality and credibility of the evidence before
\nCourt. The other rather unusual question interestingly
\nraised by the State of Gujarat itself relates to improper
\nconduct of trial by the public prosecutor. Last, but not the
\nleast that the role of the investigating agency itself was
\nperfunctory and not impartial. Though its role is perceived
\ndifferently by the parties, there is unanimity in their
\nstand that it was tainted, biased and not fair. While the
\naccused persons accuse it for alleged false implication, the
\nvictims’ relatives like Zahira allege its efforts to be
\nmerely to protect the accused.\n<\/p>\n
\tThe appeals are against judgment of the Gujarat High
\nCourt in Criminal Appeal No. 956 of 2003 upholding acquittal
\nof respondents-accused by the trial Court.  Along with said
\nappeal, two other petitions namely Criminal Miscellaneous
\nApplication No. 10315 of 2003 and Criminal Revision No. 583
\nof 2003 were disposed of. The prayers made by the State for
\nadducing additional evidence under Section 391 of the Code
\nof Criminal Procedure, 1973 (in short the ‘Code’), and\/or
\nfor directing retrial were rejected. Consequentially, prayer
\nfor examination of witnesses under Section 311 of the Code
\nwas also rejected.\n<\/p>\n
\tIn a nutshell the prosecution version which led to
\ntrial of the accused persons is as follows:\n<\/p>\n
\tBetween 8.30 p.m. of 1.3.2002 and 11.00 a.m. of
\n2.3.2002, a business concern known as “Best Bakery” at
\nVadodara was burnt down by an unruly mob of large number of
\npeople. In the ghastly incident 14 persons died. The attacks
\nwere stated to be a part of retaliatory action to avenge
\nkilling of 56 persons burnt to death in the Sabarmati
\nExpress. Zahira was the main eye-witness who lost family
\nmembers including helpless women and innocent children in
\nthe gruesome incident. Many persons other than Zahira were
\nalso eye-witnesses. Accused persons were the perpetrators of
\nthe crime. After investigation charge sheet was filed in
\nJune 2002.\n<\/p>\n
\tDuring trial the purported eye-witnesses resiled from
\nthe statements made during investigation. Faulty and biased
\ninvestigation as well as perfunctory trial were said to have
\nmarred the sanctity of the entire exercise undertaken to
\nbring the culprits to books. By judgment dated 27.6.2003,
\nthe trial Court directed acquittal of the accused persons.\n<\/p>\n
\tZahira appeared before National Human Rights Commission
\n(in short the ‘NHRC’) stating that she was threatened by
\npowerful politicians not to depose against the accused
\npersons. On 7.8.2003 an appeal not up to the mark and
\nneither in conformity with the required care, appears to
\nhave been filed by the State against the judgment of
\nacquittal before the Gujarat High Court. NHRC moved this
\nCourt and its Special leave petition has been treated as a
\npetition under Article 32 of the Constitution of India, 1950
\n(in short the ‘Constitution’). Zahira and another
\norganisation – Citizens for Justice and Peace filed SLP
\n(Crl.) No. 3770 of 2003 challenging judgment of acquittal
\npassed by the trial Court. One Sahera Banu (sister of
\nappellant-Zahira) filed the afore-noted Criminal Revision
\nNo. 583 of 2003 before the High Court questioning the
\nlegality of the judgment returning a verdict of acquittal.
\nAppellant-State filed an application (Criminal Misc.
\nApplication NO.7677 of 2003) in terms of Sections 391 and
\n311 of the Code for permission to adduce additional evidence
\nand for examination of certain persons as witness. Criminal
\nMiscellaneous Application No. 9825 of 2003 was filed by the
\nState to bring on record a document and to treat it as
\ncorroborative piece of evidence. By the impugned judgment
\nthe appeal, revision and the applications were dismissed and
\nrejected.\n<\/p>\n
\tThe State and Zahira had requested for a fresh trial
\nprimarily on the following grounds:\n<\/p>\n
\tWhen a large number of witnesses have turned hostile it
\nshould have raised a reasonable suspicion that the witnesses
\nwere being threatened or coerced.  The public prosecutor did
\nnot take any step to protect the star witness who was to be
\nexamined on 17.5.2003 specially when four out of seven
\ninjured witnesses had on 9.5.2003 resiled from the
\nstatements made during investigation.  Zahira Sheikh – the
\nStar witness had specifically stated on affidavit about the
\nthreat given to her and the reason for her not coming out
\nwith the truth during her examination before Court on
\n17.5.2003.\n<\/p>\n
\tThe public prosecutor was not acting in a manner
\nbefitting the position held by him. He even did not request
\nthe Trial court for holding the trial in camera when a large
\nnumber of witnesses were resiling from the statements made
\nduring investigation.\n<\/p>\n
\tThe trial court should have exercised power under
\nsection 311 of the Code and recalled and re-examined
\nwitnesses as their evidence was essential to arrive at the
\ntruth and a just decision in the case. The power under
\nSection 165 of the Indian Evidence Act, 1872 (in short the
\n‘Evidence Act’) was not resorted to at all and that also had
\nled to miscarriage of justice.\n<\/p>\n
\tThe public prosecutor did not examine the injured
\nwitnesses. Exhibit 36\/68 was produced by the public
\nprosecutor which is a statement of one Rahish Khan on the
\ncommencement of the prosecution case, though the prosecution
\nwas neither relying on it nor it was called upon by the
\naccused, to be produced before the Court. The said statement
\nwas wrongly allowed to be exhibited and treated as FIR by
\nthe public prosecutor.\n<\/p>\n
\tStatement of one eye-witness was recorded on 4.3.2002
\nby P1 Baria at SSG Hospital, Vadodara disclosing names of
\nfive accused persons and when he was sought to be examined
\nbefore the Court, summons were issued to this person on
\n27.4.2003 for examination on 9.5.2003. It could not be
\nserved on the ground that he had left for his native place
\nin Uttar Pradesh.  Therefore,\tfresh summons were issued on
\n9.6.2003 for recording his evidence on the next day i.e. on
\n10.6.2003, giving only one day time. When it could not be
\nserved, then summons were issued on 13.6.2003 for remaining
\npresent before the Court on 16.6.2003.  It could not be also
\nserved for the same reasons. Ultimately, the public
\nprosecutor gave purshis for dropping him as witness and
\nsurprisingly the same was granted by the Trial court.  This
\ngoes to show that both the public prosecutor as well as the
\ncourt were not only oblivious but also failed to discharge
\ntheir duties. An important witness was not examined by the
\nprosecutor on the ground that he, Sahejadkhan Hasankhan (PW-\n<\/p>\n
48) was of unsound mind. Though the witness was present, the
\npublic prosecutor dropped him on the ground that he was not
\nmentally fit to depose.  When such an application was made
\nby the prosecution for dropping on the ground of mental
\ndeficiency it was the duty of the learned trial Judge to at
\nleast make some minimum efforts to find out as to whether he
\nwas actually of unsound mind or not, by getting him examined
\nfrom the Civil Surgeon or a doctor from the Psychiatric
\nDepartment. This witness (PW-48) has received serious
\ninjuries and the doctor Meena (PW-9) examined him. She has
\nnot stated in her evidence that he was mentally deficient.
\nThe police has also not reported that this witness was of
\nunsound mind. During investigation also it was never stated
\nthat he was of unsound mind.  His statement was recorded on
\n6.3.2002.\n<\/p>\n
Sahejadkhan Hasankhan – the witness was unconscious
\nbetween 2nd – 6th of March 2002. When he regained
\nconscious, his statement was recorded on 6.3.2002.  He gave
\nnames of four accused persons i.e. A-5, A-6, A-8 and A-11.
\nThis witness has also filed an affidavit before this Court
\nin a pending matter narrating the whole incident.  This
\nclearly shows that the person was not of unsound mind as was
\nmanipulated by the prosecution to drop him.\n<\/p>\n
\tIn the case of one Shailun Hasankhan Pathan  summons
\nwere issued on 9.6.2003 requiring his presence on 10.6.2003
\nwhich could not be served on him.  He disclosed the names of
\nthree accused persons i.e. A-6, A-8 and A-11.  This witness
\nwas also surprisingly treated to be of deficient mind
\nwithout any material and even without taking any efforts to
\nascertain the truth or otherwise of such serious claims.\n<\/p>\n
\tSimilarly, one injured eye-witness Tufel Habibulla
\nSheikh was not examined, though he had disclosed the names
\nof four accused i.e. A-5, A-6, A-8 and A-11.  No summons was
\nissued to this witness and he was not at all examined.\n<\/p>\n
Another eye witness Yasminbanu who had disclosed the
\nnames of A-5,A-6 and A-11 was also not examined. No reason
\nwhatsoever was disclosed for non-examination of this
\nwitness.\n<\/p>\n
\tThe affidavit filed by different witnesses before this
\nCourt highlighted as to how and why they have been kept
\nunfairly out of trial. Lalmohamad Khudabax Shaikh (PW 15)
\nwas hurriedly examined on 27.5.2003 though summons was
\nissued to him for remaining present on 6.6.2003.  No reason
\nhas been indicated as to why he was examined before the date
\nstipulated.\n<\/p>\n
Strangely the relatives of the accused were examined as
\nwitnesses for the prosecution obviously with a view that
\ntheir evidence could be used to help the accused persons.\n<\/p>\n
According to the appellant-Zahira there was no fair
\ntrial and the entire effort during trial and at all relevant
\ntimes before also was to see that the accused persons got
\nacquitted. When the investigating agency helps the accused,
\nthe witnesses are threatened to depose falsely and
\nprosecutor acts in a manner as if he was defending the
\naccused, and the Court was acting merely as an onlooker and
\nthere is no fair trial at all, justice becomes the victim.\n<\/p>\n
\tAccording to Mr. Sibal, learned counsel appearing for
\nthe appellant Zahira, the High Court has not considered the
\nstand taken by the appellant and the State of Gujarat in the
\nproper perspective. Essentially, two contentions were raised
\nby the State before the High Court, in addition to the
\napplication filed by the appellant-Zahira highlighting
\ncertain serious infirmities in the entire exercise
\nundertaken. The State had made prayers for acceptance of
\ncertain evidence under Section 391 of the Code read with
\nSection 311 of the Code. So far as the acceptance of
\nadditional evidence is concerned, the same related to
\naffidavits filed by some injured witnesses who on account of
\ncircumstances indicated in the affidavits were forced not to
\ntell the truth before the trial Court, making justice a
\ncasualty. The affidavits in essence also highlighted the
\natmosphere that prevailed in the trial Court. The affidavits
\nin fact were not intended to be used as the evidence. A
\nprayer was made that the witnesses who had filed affidavits
\nbefore this Court should be examined, so that the truth can
\nbe brought on record. The High Court surprisingly accepted
\nthe extreme stand of learned counsel for the accused persons
\nthat under Section 386 of the Code the Court can only peruse
\nthe record of the case brought before it in terms of Section
\n385(2) of the Code and the appeal has to be decided on the
\nbasis of such record only and no other record can be
\nentertained or taken into consideration while deciding the
\nappeal. It was the stand of learned counsel for the accused
\nbefore the High Court that by an indirect method certain
\nmaterials were sought to be brought on record which should
\nnot be permitted. The High Court while belittling and
\nglossing over the serious infirmities and pitfalls in the
\ninvestigation as well as trial readily accepted the said
\nstand and held that an attempt was being made to bring on
\nrecord the affidavits by an indirect method, though they
\nwere not part of the record of the trial Court.  It further
\nheld that no one including the State can be allowed to take
\nadvantage of its own wrong and thereby make capricious
\nexercise of powers in favour of the prosecution to fill in
\nthe lacuna, overlooking completely the obligation cast on
\nthe Courts also to ensure that the truth should not become a
\ncasualty and substantial justice is not denied to victims as
\nwell. With reference to these conclusions it was submitted
\nthat the High Court did not keep in view the true scope and
\nambit of Section 391 as also the need or desirability to
\nresort to Section 311 of the Code and virtually rendered
\nthe provisions otiose by nullifying the very object behind
\nthose provisions. The conclusion that the appeal can be
\ndecided only on the basis of records brought before the High
\nCourt in terms of Section 385(2) would render Section 391 of
\nthe Code and other allied powers conferred upon Courts to
\nrender justice completely nugatory.\n<\/p>\n
Further, after having held that the affidavits were not
\nto be taken on record, the High Court has recorded findings
\nregarding contents of those affidavits, and has held that
\nthe affidavits are not truthful and false. Unfortunately,
\nthe High Court has gone to the extent of saying that the
\nappellant-Zahira has been used by some persons with oblique
\nmotives. The witnesses who filed affidavits have been termed
\nto be of unsound mind, untruthful and capable of being
\nmanipulated, without any material or reasonable and concrete
\nbasis to support such conclusions. In any event, the logic
\napplied by the High Court to discard the affidavits of
\nZahira and others that they have fallen subsequently into
\nthe hands of some who remained behind the curtain, can be
\nequally applied to accept the plea that accused or persons
\nacting at their behest only had created fear on the earlier
\noccasion before deposing in Court by threats, in the minds
\nof Zahira and others.  After having clearly concluded that
\nthe investigation was faulty and there were serious doubts
\nabout the genuineness of the investigation, it would have
\nbeen proper for the High Court to accept the prayer made for
\nadditional evidence and\/or re-trial. Abrupt conclusions
\ndrawn about false implication not only cannot stand the test
\nof scrutiny but also lack judicious approach and objective
\nconsideration, as is expected of a Court.\n<\/p>\n
Section 391 of the Code is intended to sub-serve the
\nends of justice by arriving at the truth and there is no
\nquestion of filling of any lacuna in the case on hand. The
\nprovision though a discretionary one is hedged with the
\ncondition about the requirement to record reasons. All these
\naspects have been lost sight of and the judgment, therefore,
\nis indefensible. It was submitted that this is a fit case
\nwhere the prayer for retrial as a sequel to acceptance of
\nadditional evidence should be directed. Though, the re-trial
\nis not the only result flowing from acceptance of additional
\nevidence, in view of the peculiar circumstances of the case,
\nthe proper course would be to direct acceptance of
\nadditional evidence and in the fitness of things also order
\nfor a re-trial on the basis of the additional evidence.\n<\/p>\n
It was submitted by the appellants that in view of the
\natmosphere in which the case was tried originally there
\nshould be a direction for a trial outside the State in case
\nthis Court thinks it so appropriate to direct, and evidence
\ncould be recorded by video conferencing so that a hostile
\natmosphere can be avoided. It is further submitted that the
\nfresh investigation should be directed as investigation
\nalready conducted was not done in a fair manner and the
\nprosecutor did not act fairly. If the State’s machinery
\nfails to protect citizen’s life, liberties and property and
\nthe investigation is conducted in a manner to help the
\naccused persons, it is but appropriate that this Court
\nshould step in to prevent undue miscarriage of justice that
\nis perpetrated upon the victims and their family members.\n<\/p>\n
Mr. Rohtagi, learned Additional Solicitor General
\nappearing for the State of Gujarat in the appeal filed by it
\nsubmitted that the application under consideration of the
\nHigh Court was in terms of Section 311 and Section 391 of
\nthe Code. Though the nomenclature is really not material,
\nthe prayer was to permit the affidavits to be brought on
\nrecord, admit and take additional evidence of the persons
\nfiling the affidavits by calling\/re-calling them in addition
\nto certain directions for re-trial if the High Court felt it
\nto be so necessary after considering the additional
\nevidence. Though there was no challenge to Zahira’s locus
\nstandi to file an appeal, it is submitted that prayer for
\nre-hearing by another High Court and\/or for trial outside
\nthe State cannot be countenanced and it is nobody’s case
\nthat the Courts in Gujarat cannot do complete justice and
\nsuch moves do not serve anybody’s purpose.\n<\/p>\n
There is no proper reason indicated by the High Court
\nto refuse to take on record the affidavits and the only
\ninferable reason as it appears i.e. that the affidavits were
\nalso filed in this Court in another proceeding is no reason
\nin the eye of law. Admissibility of material is one thing
\nand what is its worth is another thing and relates to
\nacceptability of the evidence. Since they were relevant,
\nbeing filed by alleged eye-witnesses, there was no basis for
\nthe High Court to discard them. Even if the appellant-Zahira
\nhas taken different stands as concluded by the High Court,
\nit was obligatory for the Court to find out as to what is
\nthe correct stand and real truth which could have been
\ndecided and examined by accepting the prayer for additional
\nevidence. The High Court has, without any material or
\nsufficient basis, come to hold that the FIR was manipulated,
\nand the fax message referred to by the State could also have
\nbeen manipulated. There is no basis for coming to such a
\nconclusion. There was no material before the trial Court to
\nconclude that the FIR was lodged by one Rahish Khan, though
\nthe statement of appellant-Zahira was anterior in point of
\ntime. The stand of the State was that it was relying on
\nZahira’s version to be the FIR. The State had filed the
\napplication for acceptance of additional evidence as it was
\nof the view that the FIR registered on the basis of Zahira’s
\nstatement was an authentic one and no evidence aliunde was
\nnecessary. In the absence of even any material the abrupt
\nconclusion about manipulation and the other conclusions of
\nthe High Court are perverse and also contradictory in the
\nsense that after having said that affidavits were not to be
\nbrought on record it went on to label it as not truthful.
\nThe High Court should not have thrown out the application as
\nwell as the materials sought to be brought on record even at
\nthe threshold and yet gone on to surmise on reasons, at the
\nsame time, professing to decide on its correctness.\n<\/p>\n
The stands taken before the High Court to justify
\nacceptance of additional evidence and directions for retrial
\nwere re-iterated.\n<\/p>\n
Mr. Sushil Kumar, learned senior counsel for the
\naccused submitted that it is not correct to say that
\napplication under Section 391 of the Code was not admitted.
\nIt was in fact admitted and rejected on merits. It is also
\nnot correct to say that the investigation was perfunctory.
\nThe affidavits sought to be brought on record were
\nconsidered on their own merits. While Zahira’s prayer was
\nfor fresh investigation, the State’s appeal in essence was
\nfor fresh trial. The four persons whose affidavits were
\npressed into service were PWs 1, 6, 47 and 48. They were
\nexamined as PWs and there was no new evidence. There can be
\nno re-examination on the pretext used by the State for re-
\ntrial. The original appeal filed by the State was Appeal no.
\n956 of 2003. There was first an amendment in September 2003,
\nand finally in December 2003. The stand got changed from
\ntime to time. What essentially was urged or sought for,
\nrelated to fresh trial on the ground that investigation was
\nnot fair. The stand taken by the State in its appeal is also
\ncontrary to evidence on record. Though one of the grounds
\nseeking fresh trial was the alleged deficiencies of the
\npublic prosecutor in conducting the trial and for not
\nbringing on record the contradictions with reference to the
\nstatements recorded during investigation, in fact it has
\nbeen done. There was nothing wrong in treating statement of
\nRahish Khan as the FIR. The High Court has rightly concluded
\nthat Zahira’s statement was manipulated as if she had given
\ninformation at the first point of time which is belied by
\nthe fact that it reached the concerned Court after three
\ndays. The High Court after analysing the evidence has
\ncorrectly come to the conclusion that the police manipulated
\nin getting false witnesses to rope in wrong people as the
\naccused. Irrelevant and out of context submissions are said
\nto have been made, and grounds taken and reliefs sought for
\nby Zahira in her appeal.\n<\/p>\n
Mr. KTS Tulsi, learned senior counsel also appearing
\nfor the accused persons in the appeal filed by the State
\nsubmitted that in Section 311 the key words are  “if his
\nevidence appears to it to be essential to the just decision
\nof the case”. Therefore, the Court must be satisfied that
\nthe additional evidence is necessary and it is not possible
\nto arrive at a just conclusion on the basis of the records.
\nFor that purpose it has to apply its mind to the evidence
\nalready on record and thereafter decide whether it feels any
\nadditional evidence to be necessary. For that purpose, the
\nCourt has to come to a prima facie conclusion that an appeal
\ncannot be decided on the basis of materials existing on
\nrecord. Therefore, before dealing with an application under
\nSection 391 the Court has to analyse the evidence already
\nexisting. Since the High Court in the instant case has
\nanalysed the evidence threadbare and come to the conclusion
\nthat the trial was fair and satisfactory and a positive
\nconclusion has been arrived at after analysing the evidence,
\nthe question of pressing into service Section 391 of the
\nCode does not arise.\n<\/p>\n
In essence three points were urged by Mr. Tulsi. They
\nare as follows:\n<\/p>\n
\tFor the purpose of exercise of power under Section 391
\nof the Code, the Court has to come to a conclusion about the
\nnecessity for additional evidence which only could be done
\nafter examining evidence on record. In other words the Court
\nmust arrive at a conclusion that the existing material is
\ninsufficient for the purpose of arriving at a just decision.\n<\/p>\n
\tThe High Court has undertaken an elaborate exercise for
\nthe purpose of arriving at the conclusion as to whether
\nadditional evidence was necessary after examining every
\nrelevant aspect. It has come to a definite conclusion that
\nthe trial of the case was fair, satisfactory and neither any
\nillegalities were committed nor any evidence was wrongly
\naccepted or rejected.  The extraneous factors have been kept
\nout of consideration as these may have influenced the
\nwitnesses in changing their evidence and giving a go by to
\nsubstantive evidence tendered in Court. A need for giving
\nfinality to trial in criminal proceedings is paramount as
\notherwise prejudice is caused to the accused persons and in
\nfact it would be a negation of the fundamental rule of law
\nto make the accused to undergo trial once over which has the
\neffect of derailing system of justice. Elaborating the
\npoints it is submitted that if the Court feels that
\nadditional evidence is not necessary after analysing the
\nexisting evidence and the nature of materials sought to be
\nbrought in, it cannot be said that the Court has acted in a
\nmanner contrary to law. In fact, the High Court has felt
\nthat extraneous materials are now sought to be introduced
\nand it is not known as to whether the present statement of
\nthe witnesses is correct or what was stated before the trial
\nCourt originally was the truth. The Court analysed the
\nevidence of the material witnesses and noticed several
\nrelevant factors to arrive at this conclusion. The necessity
\nand need for additional evidence has to be determined in the
\ncontext of the need for a just decision and it cannot be
\nused for filling up a lacuna. Reference is made to the
\ndecisions of this Court in Jamatraj Kewalji Govani v. The
\nState of Maharashtra<\/a> (1967 (3) SCR 415) and Mohanlal Shamji
\nSoni v. Union of India and Another (1991 Supp (1) SCC 271).
\nThe High Court has also come to definite conclusion that the
\nsubmissions of the State and the Sahera cannot be accepted
\nbecause non-examination of certain persons was on account of
\nthe circumstances indicated by the trial Court and that
\nconclusion has been arrived at after analysing the factual
\nbackground. There is no guarantee, as rightly observed by
\nthe High Court, that the subsequent affidavits are true. On
\nthe contrary, in the absence of any contemporary grievance
\nhaving been made before the Court about any pressure or
\nthreat, the affidavits and the claims now sought to be made
\nhave been rightly discarded.\n<\/p>\n
\tRight from the inception of the judicial system it has
\nbeen accepted that discovery, vindication and establishment
\nof truth are the main purposes underlying existence of
\nCourts of justice. The operating principles for a fair trial
\npermeate the common law in both civil and criminal contexts.
\nApplication of these principles involve a delicate judicial
\nbalancing of competing interests in a criminal trial, the
\ninterests of the accused and the public and to a great
\nextent that of the victim have to be weighed not losing
\nsight of the public interest involved in the prosecution of
\npersons who commit offences.\n<\/p>\n
In 1846, in a judgment which Lord Chancellor Selborne
\nwould later describe as “one of the ablest judgments of one
\nof the ablest judges who ever sat in this court”.  Vice-
\nChancellor Knight Bruce said:\n<\/p>\n
“The discovery and vindication and
\nestablishment of truth are main purposes
\ncertainly of the existence of Courts of
\nJustice; still, for the obtaining of
\nthese objects, which, however valuable
\nand important, cannot be usefully
\npursued without moderation, cannot be
\neither usefully or creditably pursued
\nunfairly or gained by unfair means, not
\nevery channel is or ought to be open to
\nthem.  The practical inefficacy of
\ntorture is not, I suppose, the most
\nweighty objection to that mode of
\nexamination.. Truth, like all other good
\nthings, may be loved unwisely – may be
\npursued too keenly – may cost too
\nmuch.”\n<\/p>\n
The Vice-Chancellor went on to refer to paying “too great a
\nprice… for truth”. This is a formulation which has
\nsubsequently been frequently invoked, including by Sir
\nGerard Brennan. On another occasion, in a joint judgment of
\nthe High Court, a more expansive formulation of the
\nproposition was advanced in the following terms: “The
\nevidence has been obtained at a price which is unacceptable
\nhaving regard to prevailing community standards.”\n<\/p>\n
\tRestraints on the processes for determining the truth
\nare multi-faceted. They have emerged in numerous different
\nways, at different times and affect different areas of the
\nconduct of legal proceedings. By the traditional common law
\nmethod of induction there has emerged in our jurisprudence
\nthe principle of a fair trial. Oliver Wendell Holmes
\ndescribed the process:\n<\/p>\n
“It is the merit of the common law that
\nit decides the case first and determines
\nthe principle afterwards … It is only
\nafter a series of determination on the
\nsame subject-matter, that it becomes
\nnecessary to “reconcile the cases”, as
\nit s called, that is, by a true
\ninduction to state the principle which
\nhas until then been obscurely felt.  And
\nthis statement is often modified more
\nthan once by new decisions before the
\nabstracted general rule takes its final
\nshape. A well settled legal doctrine
\nembodies the work of many minds, and has
\nbeen tested in form as well as substance
\nby trained critics whose practical
\ninterest is to resist it at every
\nstep.”\n<\/p>\n
\tThe principle of fair trial now informs and energises
\nmany areas of the law. It is reflected in numerous rules and
\npractices. It is a constant, ongoing development process
\ncontinually adapted to new and changing circumstances, and
\nexigencies of the situation – peculiar at times and related
\nto the nature of crime, persons involved – directly or
\noperating behind, social impact and societal needs and even
\nso many powerful balancing factors which may come in the way
\nof administration of criminal justice system.\n<\/p>\n
\tAs will presently appear, the principle of a fair trial
\nmanifests itself in virtually every aspect of our practice
\nand procedure, including the laws of evidence.  There is,
\nhowever, an overriding and, perhaps, unifying principle. As
\nDeane J put it:\n<\/p>\n
“It is desirable that the requirement
\nof fairness be separately identified
\nsince it transcends the content of more
\nparticularized legal rules and
\nprinciples and provides the ultimate
\nrationale and touchstone of the rules
\nand practices which the common law
\nrequires to be observed in the
\nadministration of the substantive
\ncriminal law”.\n<\/p>\n
\tThis Court has often emphasised that in a criminal case
\nthe fate of the proceedings cannot always be left entirely
\nin the hands of the parties, crimes being public wrongs in
\nbreach and violation of public rights and duties, which
\naffect the whole community as a community and harmful to the
\nsociety in general. The concept of fair trial entails
\nfamiliar triangulation of interests of the accused, the
\nvictim and the society and it is the community that acts
\nthrough the State and prosecuting agencies. Interests of
\nsociety is not to be treated completely with disdain and as
\npersona non grata. Courts have always been considered to
\nhave an over-riding duty to maintain public confidence in
\nthe administration of justice – often referred to as the
\nduty to vindicate and uphold the ‘majesty of the law’. Due
\nadministration of justice has always been viewed as a
\ncontinuous process, not confined to determination of the
\nparticular case, protecting its ability to function as a
\nCourt of law in the future as in the case before it. If a
\ncriminal Court is to be an effective instrument in
\ndispensing justice, the Presiding Judge must cease to be a
\nspectator and a mere recording machine by becoming a
\nparticipant in the trial evincing intelligence, active
\ninterest and elicit all relevant materials necessary for
\nreaching the correct conclusion, to find out the truth, and
\nadminister justice with fairness and impartiality both to
\nthe parties and to the community it serves. Courts
\nadministering criminal justice cannot turn a blind eye to
\nvexatious or oppressive conduct that has occurred in
\nrelation to proceedings, even if a fair trial is still
\npossible, except at the risk of undermining the fair name
\nand standing of the judges as impartial and independent
\nadjudicators.\n<\/p>\n
\tThe principles of rule of law and due process are
\nclosely linked with human rights protection. Such rights can
\nbe protected effectively when a citizen has recourse to the
\nCourts of law. It has to be unmistakably understood that a
\ntrial which is primarily aimed at ascertaining truth has to
\nbe fair to all concerned. There can be no analytical, all
\ncomprehensive or exhaustive definition of the concept of a
\nfair trial, and it may have to be determined in seemingly
\ninfinite variety of actual situations with the ultimate
\nobject in mind viz. whether something that was done or said
\neither before or at the trial deprived the quality of
\nfairness to a degree where a miscarriage of justice has
\nresulted. It will not be correct to say that it is only the
\naccused who must be fairly dealt with. That would be turning
\nNelson’s eyes to the needs of the society at large and the
\nvictims or their family members and relatives. Each one has
\nan inbuilt right to be dealt with fairly in a criminal
\ntrial. Denial of a fair trial is as much injustice to the
\naccused as is to the victim and the society. Fair trial
\nobviously would mean a trial before an impartial Judge, a
\nfair prosecutor and atmosphere of judicial calm. Fair trial
\nmeans a trial in which bias or prejudice for or against the
\naccused, the witnesses, or the cause which is being tried is
\neliminated. If the witnesses get threatened or are forced to
\ngive false evidence that also would not result in a fair
\ntrial. The failure to hear material witnesses is certainly
\ndenial of fair trial.\n<\/p>\n
\tWhile dealing with the claims for the transfer of a
\ncase under Section 406 of the Code from one State to another
\nthis Court in Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani
\nJethmalani<\/a> (1979 (4) SCC 167), emphasised the necessity to
\nensure fair trial, observing as hereunder:
\n“Assurance of a fair trial is the first
\nimperative of the dispensation of justice and
\nthe central criterion for the court to
\nconsider when a motion for transfer is made
\nis not the hypersensitivity or relative
\nconvenience of a party or easy availability
\nof legal services or like mini-grievances.
\nSomething more substantial, more compelling,
\nmore imperilling, from the point of view of
\npublic justice and its attendant environment,
\nis necessitous if the Court is to exercise
\nits power of transfer. This is the cardinal
\nprinciple although the circumstances may be
\nmyriad and vary from case to case. We have to
\ntest the petitioner’s grounds on this
\ntouchstone bearing in mind the rule that
\nnormally the complainant has the right to
\nchoose any court having jurisdiction and the
\naccused cannot dictate where the case against
\nhim should be tried. Even so, the process of
\njustice should not harass the parties and
\nfrom that angle the court may weigh the
\ncircumstances.\n<\/p>\n
 \tA more serious ground which disturbs us
\nin more ways than one is the alleged absence
\nof congenial atmosphere for a fair and
\nimpartial trial. It is becoming a frequent
\nphenomenon in our country that court
\nproceedings are being disturbed by rude
\nhoodlums and unruly crowds, jostling, jeering
\nor cheering and disrupting the judicial
\nhearing with menaces, noises and worse. This
\ntendency of toughs and street roughs to
\nviolate the serenity of court is obstructive
\nof the course of justice and must surely be
\nstamped out. Likewise, the safety of the
\nperson of an accused or complainant is an
\nessential condition for participation in a
\ntrial and where that is put in peril by
\ncommotion, tumult or threat on account of
\npathological conditions prevalent in a
\nparticular venue, the request for a transfer
\nmay not be dismissed summarily. It causes
\ndisquiet and concern to a court of justice if
\na person seeking justice is unable to appear,
\npresent one’s case, bring one’s witnesses or
\nadduce evidence. Indeed, it is the duty of
\nthe court to assure propitious conditions
\nwhich conduce to comparative tranquility at
\nthe trial. Turbulent conditions putting the
\naccused’s life in danger or creating chaos
\ninside the court hall may jettison public
\njustice. If this vice is peculiar to a
\nparticular place and is persistent the
\ntransfer of the case from that place may
\nbecome necessary. Likewise, if there is
\ngeneral consternation or atmosphere of
\ntension or raging masses of people in the
\nentire region taking sides and polluting the
\nclimate, vitiating the necessary neutrality
\nto hold detached judicial trial, the
\nsituation may be said to have deteriorated to
\nsuch an extent as to warrant transfer. In a
\ndecision cited by the counsel for the
\npetitioner, Bose, J., observed :\n<\/p>\n
…. But we do feel that good
\ngrounds for transfer from
\nJashpurnagar are made out because
\nof the bitterness of local communal
\nfeeling and the tenseness of the
\natmosphere there. Public confidence
\nin the fairness of a trial held in
\nsuch an atmosphere would be
\nseriously undermined, particularly
\namong reasonable Christians all
\nover India not because the Judge
\nwas unfair or biased but because
\nthe machinery of justice is not
\ngeared to work in the midst of such
\nconditions. The calm detached
\natmosphere of a fair and impartial
\njudicial trial would be wanting,
\nand even if justice were done it
\nwould not be “seen to be done”. (G.\n<\/p>\n
X. Francis v. Banke Behari Singh,
\nAIR 1958 SC 309)
\n \tAccepting this perspective we must
\napproach the facts of the present case
\nwithout excitement, exaggeration or eclipse
\nof a sense of proportion. It may be true that
\nthe petitioner attracts a crowd in Bombay.
\nIndeed, it is true of many controversial
\nfigures in public life that their presence in
\na public place gathers partisans for and
\nagainst, leading to cries and catcalls or
\n‘jais’ or ‘zindabads’. Nor is it unnatural
\nthat some persons may have acquired, for a
\ntime a certain quality of reputation,
\nsometimes notoriety, sometimes glory, which
\nmay make them the cynosure of popular
\nattention when they appear in cities even in
\na court. And when unkempt crowds press into a
\ncourt hall it is possible that some pushing,
\nsome nudging, some brash ogling or angry
\nstaring may occur in the rough and tumble
\nresulting in ruffled feelings for the victim.
\nThis is a far cry from saying that the peace
\ninside the court has broken down, that calm
\ninside the court is beyond restoration, that
\na tranquil atmosphere for holding the trial
\nis beyond accomplishment or that operational
\nfreedom for judge, parties, advocates and
\nwitnesses has creased to exist. None of the
\nallegations made by the petitioner, read in
\nthe pragmatic light of the counter-averments
\nof the respondent and understood
\nrealistically, makes the contention of the
\ncounsel credible that a fair trial is
\nimpossible. Perhaps, there was some rough
\nweather but it subsided, and it was a storm
\nin the tea cup or transient tension to
\nexaggerate which is unwarranted. The
\npetitioner’s case of great insecurity or
\nmolestation to the point of threat to life
\nis, so far as the record bears out, difficult
\nto accept. The mere word of an interested
\nparty is insufficient to convince us that she
\nis in jeopardy or the court may not be able
\nto conduct the case under conditions of
\ndetachment, neutrality or uninterrupted
\nprogress. We are disinclined to stampede
\nourselves into conceding a transfer of the
\ncase on this score, as things stand now.\n<\/p>\n
 \tNevertheless, we cannot view with
\nunconcern the potentiality of a flare up and
\nthe challenge to a fair trial, in the sense
\nof a satisfactory participation by the
\naccused in the proceedings against her. Mob
\naction may throw out of gear the wheels of
\nthe judicial process. Engineered fury may
\nparalyse a party’s ability to present his
\ncase or participate in the trial. If the
\njustice system grinds to a halt through
\nphysical manoeuvres or sound and fury of the
\nsenseless populace the rule of law runs
\naground. Even the most hated human anathema
\nhas a right to be heard without the rage of
\nruffians or huff of toughs being turned
\nagainst him to unnerve him as party or
\nwitness or advocate. Physical violence to a
\nparty, actual or imminent, is reprehensible
\nwhen he seeks justice before a tribunal.\n<\/p>\n
Manageable solutions must not sweep this
\nCourt off its feet into granting an easy
\ntransfer but uncontrollable or perilous
\ndeterioration will surely persuade us to
\nshift the venue. It depends. The frequency of
\nmobbing manoeuvres in court precincts is a
\nbad omen for social justice in its wider
\nconnotation. We, therefore, think it
\nnecessary to make a few cautionary
\nobservations which will be sufficient, as we
\nsee at present, to protect the petitioner and
\nensure for her a fair trial.\n<\/p>\n
A criminal trial is a judicial examination of the
\nissues in the case and its purpose is to arrive at a
\njudgment on an issue as a fact or relevant facts which may
\nlead to the discovery of the fact issue and obtain proof of
\nsuch facts at which the prosecution and the accused have
\narrived by their pleadings; the controlling question being
\nthe guilt or innocence of the accused. Since the object is
\nto mete out justice and to convict the guilty and protect
\nthe innocent, the trial should be a search for the truth and
\nnot a bout over technicalities, and must be conducted under
\nsuch rules as will protect the innocent, and punish the
\nguilty. The proof of charge which has to be beyond
\nreasonable doubt must depend upon judicial evaluation of the
\ntotality of the evidence, oral and circumstantial and not by
\nan isolated scrutiny.\n<\/p>\n
\tFailure to accord fair hearing either to the accused or
\nthe prosecution violates even minimum standards of due
\nprocess of law. It is inherent in the concept of due process
\nof law, that condemnation should be rendered only after the
\ntrial in which the hearing is a real one, not sham or a mere
\nfarce and pretence. Since the fair hearing requires an
\nopportunity to preserve the process, it may be vitiated and
\nviolated by an overhasty stage-managed, tailored and
\npartisan trial.\n<\/p>\n
\tThe fair trial for a criminal offence consists not only
\nin technical observance of the frame and forms of law, but
\nalso in recognition and just application of its principles
\nin substance, to find out the truth and prevent miscarriage
\nof justice.\n<\/p>\n
\t“Witnesses” as Benthem said: are the eyes and ears of
\njustice. Hence, the importance and primacy of the quality of
\ntrial process. If the witness himself is incapacitated from
\nacting as eyes and ears of justice, the trial gets putrefied
\nand paralysed, and it no longer can constitute a fair trial.
\nThe incapacitation may be due to several factors like the
\nwitness being not in a position for reasons beyond control
\nto speak the truth in the Court or due to negligence or
\nignorance or some corrupt collusion. Time has become ripe to
\nact on account of numerous experiences faced by Courts on
\naccount of frequent turning of witnesses as hostile, either
\ndue to threats, coercion, lures and monetary considerations
\nat the instance of those in power, their henchmen and
\nhirelings, political clouts and patronage and innumerable
\nother corrupt practices ingenuously adopted to smoother and
\nstifle truth and realities coming out to surface rendering
\ntruth and justice, to become ultimate casualties. Broader
\npublic and societal interests require that the victims of
\nthe crime who are not ordinarily parties to prosecution and
\nthe interests of State represented by their prosecuting
\nagencies do not suffer even in slow process but irreversibly
\nand irretrievably, which if allowed would undermine and
\ndestroy public confidence in the administration of justice,
\nwhich may ultimately pave way for anarchy, oppression and
\ninjustice resulting in complete breakdown and collapse of
\nthe edifice of rule of law, enshrined and jealously guarded
\nand protected by the Constitution.  There comes the need for
\nprotecting the witness. Time has come when serious and
\nundiluted thoughts are to be bestowed for protecting
\nwitnesses so that ultimate truth is presented before the
\nCourt and justice triumphs and that the trial is not reduced
\nto mockery. The State has a definite role to play in
\nprotecting the witnesses, to start with at least in
\nsensitive cases involving those in power, who has political
\npatronage and could wield muscle and money power, to avert
\ntrial getting tainted and derailed and truth becoming a
\ncasualty. As a protector of its citizens it has to ensure
\nthat during a trial in Court the witness could safely depose
\ntruth without any fear of being haunted by those against
\nwhom he has deposed. Some legislative enactments like the
\nTerrorist and Disruptive Activities (Prevention) Act, 1987
\n(in short the ‘TADA Act’) have taken note of the reluctance
\nshown by witnesses to depose against dangerous criminals-
\nterrorists. In a milder form also the reluctance and the
\nhesitation of witnesses to depose against people with muscle
\npower, money power or political power has become the order
\nof the day. If ultimately truth is to be arrived at, the
\neyes and ears of justice have to be protected so that the
\ninterests of justice do not get incapacitated in the sense
\nof making the proceedings before Courts mere mock trials as
\nare usually seen in movies.\n<\/p>\n
\tLegislative measures to emphasise prohibition against
\ntampering with witness, victim or informant have become the
\nimminent and inevitable need of the day. Conducts which
\nillegitimately affect the presentation of evidence in
\nproceedings before the Courts have to be seriously and
\nsternly dealt with. There should not be any undue anxiety to
\nonly protect the interest of the accused. That would be
\nunfair as noted above to the needs of the society. On the
\ncontrary, the efforts should be to ensure fair trial where
\nthe accused and the prosecution both get a fair deal. Public
\ninterest in the proper administration of justice must be
\ngiven as much importance if not more, as the interests of
\nthe individual accused. In this courts have a vital role to
\nplay.\n<\/p>\n
\tThe Courts have to take a participatory role in a
\ntrial. They are not expected to be tape recorders to record
\nwhatever is being stated by the witnesses. Section 311 of
\nthe Code and Section 165 of the Evidence Act confer vast and
\nwide powers on Presiding Officers of Court to elicit all
\nnecessary materials by playing an active role in the
\nevidence collecting process. They have to monitor the
\nproceedings in aid of justice in a manner that something,
\nwhich is not relevant, is not unnecessarily brought into
\nrecord. Even if the prosecutor is remiss in some ways, it
\ncan control the proceedings effectively so that ultimate
\nobjective i.e. truth is arrived at. This becomes more
\nnecessary where the Court has reasons to believe that the
\nprosecuting agency or the prosecutor is not acting in the
\nrequisite manner. The Court cannot afford to be wishfully or
\npretend to be blissfully ignorant or oblivious to such
\nserious pitfalls or dereliction of duty on the part of the
\nprosecuting agency.  The prosecutor who does not act fairly
\nand acts more like a counsel for the defence is a liability
\nto the fair judicial system, and Courts could not also play
\ninto the hands of such prosecuting agency showing
\nindifference or adopting an attitude of total aloofness.\n<\/p>\n
\tThe power of the Court under Section 165 of the
\nEvidence Act is in a way complementary to its power under
\nSection 311 of the Code. The section consists of two parts
\ni.e (i) giving a discretion to the Court to examine the
\nwitness at any stage and (ii) the mandatory portion which
\ncompels the Court to examine a witness if his evidence
\nappears to be essential to the just decision of the Court.
\nThough the discretion given to the Court is very wide, the
\nvery width requires a corresponding caution. In Mohan Lal v.
\nUnion of India (1991 Supp (1) SCC 271) this Court has
\nobserved, while considering the scope and ambit of Section
\n311, that the very usage of the word such as, ‘any Court’
\n‘at any stage’, or ‘any enquiry or trial or other
\nproceedings’ ‘any person’ and ‘any such person’ clearly
\nspells out that the Section has expressed in the widest
\npossible terms and do not limit the discretion of the Court
\nin any way. However, as noted above, the very width requires
\na corresponding caution that the discretionary powers should
\nbe invoked as the exigencies of justice require and
\nexercised judicially with circumspection and consistently
\nwith the provisions of the Code. The second part of the
\nsection does not allow any discretion but obligates and
\nbinds the Court to take necessary steps if the fresh
\nevidence to be obtained is essential to the just decision of
\nthe case – ‘essential’, to an active and alert mind and not
\nto one which is bent to abandon or abdicate. Object of the
\nSection is to enable the Court to arrive at the truth
\nirrespective of the fact that the prosecution or the defence
\nhas failed to produce some evidence which is necessary for a
\njust and proper disposal of the case. The power is exercised
\nand the evidence is examined neither to help the prosecution
\nnor the defence, if the Court feels that there is necessity
\nto act in terms of Section 311 but only to subserve the
\ncause of justice and public interest. It is done with an
\nobject of getting the evidence in aid of a just decision and
\nto uphold the truth.\n<\/p>\n
\tIt is not that in every case where the witness who had
\ngiven evidence before Court wants to change his mind and is
\nprepared to speak differently, that the Court concerned
\nshould readily accede to such request by lending its
\nassistance. If the witness who deposed one way earlier comes
\nbefore the appellate Court with a prayer that he is prepared
\nto give evidence which is materially different from what he
\nhas given earlier at the trial with the reasons for the
\nearlier lapse, the Court can consider the genuineness of the
\nprayer in the context as to whether the party concerned had
\na fair opportunity to speak the truth earlier and in an
\nappropriate case accept it. It is not that the power is to
\nbe exercised in a routine manner, but being an exception to
\nthe ordinary rule of disposal of appeal on the basis of
\nrecords received in exceptional cases or extraordinary
\nsituation the Court can neither feel powerless nor abdicate
\nits duty to arrive at the truth and satisfy the ends of
\njustice. The Court can certainly be guided by the metaphor,
\nseparate the grain from the chaff, and in a case which has
\ntelltale imprint of reasonableness and genuineness in the
\nprayer, the same has to be accepted, at least to consider
\nthe worth, credibility and the acceptability of the same on
\nmerits of the material sought to be brought in.\n<\/p>\n
\tUltimately, as noted above, ad nauseam the duty of the
\nCourt is to arrive at the truth and subserve the ends of
\njustice. Section 311 of the Code does not confer any party
\nany right to examine, cross-examine and re-examine any
\nwitness. This is a power given to the Court not to be merely
\nexercised at the bidding of any one party\/person but the
\npowers conferred and discretion vested are to prevent any
\nirretrievable or immeasurable damage to the cause of
\nsociety, public interest and miscarriage of justice.
\nRecourse may be had by Courts to power under this section
\nonly for the purpose of discovering relevant facts or
\nobtaining proper proof of such facts as are necessary to
\narrive at a just decision in the case.\n<\/p>\n
\tSection 391 of the Code is another salutary provision
\nwhich clothes the Courts with the power to effectively
\ndecide an appeal. Though Section 386 envisages the normal
\nand ordinary manner and method of disposal of an appeal, yet
\nit does not and cannot be said to exhaustively enumerate the
\nmodes by which alone the Court can deal with an appeal.
\nSection 391 is one such exception to the ordinary rule and
\nif the appellate Court considers additional evidence to be
\nnecessary, the provisions in Section 386 and Section 391
\nhave to be harmoniously considered to enable the appeal to
\nbe considered and disposed of also in the light of the
\nadditional evidence as well. For this purpose it is open to
\nthe appellate Court to call for further evidence before the
\nappeal is disposed of. The appellate Court can direct the
\ntaking up of further evidence in support of the prosecution;
\na fortiori it is open to the Court to direct that the
\naccused persons may also be given a chance of adducing
\nfurther evidence. Section 391 is in the nature of an
\nexception to the general rule and the powers under it must
\nalso be exercised with great care, specially on behalf of
\nthe prosecution lest the admission of additional evidence
\nfor the prosecution operates in a manner prejudicial to the
\ndefence of the accused. The primary object of Section 391 is
\nthe prevention of guilty man’s escape through some careless
\nor ignorant proceedings before a Court or vindication of an
\ninnocent person wrongfully accused. Where the Court through
\nsome carelessness or ignorance has omitted to record the
\ncircumstances essential to elucidation of truth, the
\nexercise of powers under Section 391 is desirable.\n<\/p>\n
\tThe legislative intent in enacting Section 391 appears
\nto be the empowerment of the appellate court to see that
\njustice is done between the prosecutor and the persons
\nprosecuted and if the appellate Court finds that certain
\nevidence is necessary in order to enable it to give a
\ncorrect and proper findings, it would be justified in taking
\naction under Section 391.\n<\/p>\n
\tThere is no restriction in the wording of Section 391
\neither as to the nature of the evidence or that it is to be
\ntaken for the prosecution only or that the provisions of the
\nSection are only to be invoked when formal proof for the
\nprosecution is necessary. If the appellate Court thinks that
\nit is necessary in the interest of justice to take
\nadditional evidence it shall do so. There is nothing in the
\nprovision limiting it to cases where there has been merely
\nsome formal defect. The matter is one of the discretion of
\nthe appellate Court. As re-iterated supra the ends of
\njustice are not satisfied only when the accused in a
\ncriminal case is acquitted. The community acting through the
\nState and the public prosecutor is also entitled to justice.
\nThe cause of the community deserves equal treatment at the
\nhands of the Court in the discharge of its judicial
\nfunctions.\n<\/p>\n
In Rambhau and Anr. v. State of Maharashtra<\/a> (2001 (4)
\nSCC 759) it was held that the object of Section 391 is not
\nto fill in lacuna, but to subserve the ends of justice. The
\nCourt has to keep these salutary principle in view. Though
\nwide discretion is conferred on the Court, the same has to
\nbe exercised judicially and the Legislature had put the
\nsafety valve by requiring recording of reasons.\n<\/p>\n
Need for circumspection was dealt with by this Court in
\nMohanlal Shamji Soni’s case (supra) and Ram Chander v. State
\nof Haryana<\/a> (1981 (3) SCC 191) which dealt with the
\ncorresponding Section 540 of Code of Criminal Procedure,
\n1898 (in short the ‘Old Code’) and also in Jamatraj’s case
\n(supra). While dealing with Section 311 this Court in
\nRajendra Prasad v. Narcotic Cell<\/a> thr. Its officer in Charge,
\nDelhi  (1999 (6) SCC 110) held as follows:\n<\/p>\n
“It is a common experience in criminal
\ncourts that defence counsel would raise
\nobjections whenever courts exercise
\npowers under Section 311 of the Code or
\nunder Section 165 of the Evidence Act,
\n1872 by saying that the court could not
\n“fill the lacuna in the prosecution
\ncase”.  A lacuna in the prosecution is
\nnot to be equated with the fallout of an
\noversight committed by a Public
\nProsecutor during trial, either in
\nproducing relevant materials or in
\neliciting relevant answers from
\nwitnesses. The adage “to err is human”\n<\/p>\n
is the recognition of the possibility of
\nmaking mistakes to which humans are
\nprone. A corollary of any such laches or
\nmistakes during the conducting of a case
\ncannot be understood as a lacuna which a
\ncourt cannot fill up.\n<\/p>\n
Lacuna in the prosecution must be
\nunderstood as the inherent weakness or a
\nlatent wedge in the matrix of the
\nprosecution case.  The advantage of it
\nshould normally go to the accused in the
\ntrial of the case, but an oversight in
\nthe management of the prosecution cannot
\nbe treated as irreparable lacuna. No
\nparty in a trial can be foreclosed from
\ncorrecting errors.  If proper evidence
\nwas not adduced or a relevant material
\nwas not brought on record due to any
\ninadvertence, the court should be
\nmagnanimous in permitting such mistakes
\nto be rectified. After all, function of
\nthe criminal court is administration of
\ncriminal justice and not to count errors
\ncommitted by the parties or to find out
\nand declare who among the parties
\nperformed better”.\n<\/p>\n
\tWhether a retrial under Section 386 or taking up of
\nadditional evidence under Section 391 is the proper
\nprocedure will depend on the facts and circumstances of each
\ncase for which no straight-jacket formula of universal and
\ninvariable application can be formulated.\n<\/p>\n
\tIn the ultimate analysis whether it is a case covered
\nby Section 386 or Section 391 of the Code the underlying
\nobject which the Court must keep in view is the very reasons
\nfor which the Courts exist i.e. to find out the truth and
\ndispense justice impartially and ensure also that the very
\nprocess of Courts are not employed or utilized in a manner
\nwhich give room to unfairness or lend themselves to be used
\nas instruments of oppression and injustice.\n<\/p>\n
Though justice is depicted to be blind-folded, as
\npopularly said, it is only a veil not to see who the party
\nbefore it is while pronouncing judgment on the cause brought
\nbefore it by enforcing law and administer justice and not to
\nignore or turn the mind\/attention of the Court away from the
\ntruth of the cause or lis before it, in disregard of its
\nduty to prevent miscarriage of justice. When an ordinary
\ncitizen makes a grievance against the mighty administration,
\nany indifference, inaction or lethargy shown in protecting
\nhis right guaranteed in law will tend to paralyse by such
\ninaction or lethargic action of Courts and erode in stages
\nfaith inbuilt in judicial system ultimately destroying the
\nvery justice delivery system of the country itself. Doing
\njustice is the paramount consideration and that duty cannot
\nbe abdicated or diluted and diverted by manipulative red
\nherrings.\n<\/p>\n
The Courts at the expense of repetition we may state,
\nexist for doing justice to the persons who are affected. The
\nTrial\/First Appellate Courts cannot get swayed by abstract
\ntechnicalities and close their eyes to factors which need to
\nbe positively probed and noticed. The Court is not merely to
\nact as a tape recorder recording evidence, overlooking the
\nobject of trial i.e. to get at the truth. It cannot be
\noblivious to the active role to be played for which there is
\nnot only ample scope, but sufficient powers conferred under
\nthe Code. It has a greater duty and responsibility i.e. to
\nrender justice, in a case where the role of the prosecuting
\nagency itself is put in issue and is said to be hand in
\nglove with the accused, parading a mock fight and making a
\nmockery of the criminal justice administration itself.\n<\/p>\n
As pithily stated in Jennison v. Backer (1972 (1) All
\nE.R. 1006), “The law should not be seen to sit limply,
\nwhile those who defy it go free and, those who seek its
\nprotection lose hope”. Courts have to ensure that accused
\npersons are punished and that the might or authority of the
\nState are not used to shield themselves or their men. It
\nshould be ensured that they do not wield such powers which
\nunder the Constitution has to be held only in trust for the
\npublic and society at large. If deficiency in investigation
\nor prosecution is visible or can be perceived by lifting the
\nveil trying to hide the realities or covering the obvious
\ndeficiencies, Courts have to deal with the same with an iron
\nhand appropriately within the framework of law. It is as
\nmuch the duty of the prosecutor as of the Court to ensure
\nthat full and material facts are brought on record so that
\nthere might not be miscarriage of justice. (See Shakila
\nAbdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr.<\/a>
\n(2003 (7) SCC 749).\n<\/p>\n
\tThis Court in Vineet Narian v. Union of India<\/a>  (1998
\n(1) SCC 226) has directed that steps should be taken
\nimmediately for the constitution of able and impartial
\nagency comprising persons of unimpeachable integrity to
\nperform functions akin to those of the Director of
\nProsecution in England. In the United Kingdom, the Director
\nof Prosecution was created in 1879. His appointment is by
\nthe Attorney General from amongst the members of the Bar and
\nhe functions under the supervision of Attorney General. The
\nDirector of Prosecution plays a vital role in the
\nprosecution system. He even administers “Witness Protection
\nProgrammes”. Several countries for example Australia,
\nCanada and USA have even enacted legislation in this regard.
\nThe Witness Protection Programmes are imperative as well as
\nimminent in the context of alarming rate of somersaults by
\nwitnesses with ulterior motives and purely for personal gain
\nor fear for security. It would be a welcome step if
\nsomething in those lines are done in our country. That would
\nbe a step in the right direction for a fair trial.
\nExpression of concern merely in words without really the
\nmind to concretise it by positive action would be not only
\nuseless but also amounts to betrayal of public confidence
\nand trust imposed.\n<\/p>\n
Though it was emphasised with great vehemence by Mr.
\nSushil Kumar and Mr. KTS Tulsi that the High Court dealt
\nwith the application under Section 391 of the Code in detail
\nand not perfunctorily as contended by learned counsel for
\nthe appellants; we find that nowhere the High Court has
\neffectively dealt with the application under Section 391 as
\na part of the exercise to deal with and dispose of the
\nappeal. In fact the High Court dealt with it practically in
\none paragraph, i.e. Paragraph 36 of the judgment accepting
\nthe stand of learned counsel for the accused that the
\nconsideration of the appeal has to be limited to the records
\nsent up under Section 385(2) of the Code for disposal of the
\nappeal under Section 386. This perception of the powers of
\nthe appellate Court and misgivings as to the manner of
\ndisposal of an appeal per se vitiates the decision rendered
\nby the High Court. Section 386 of the Code deals with the
\nmanner and disposal of the appeal in the normal or ordinary
\ncourse. Section 391 is in the nature of exception to Section\n<\/p>\n
386. As was observed in Rambhau’s case (supra) if the stand
\nof learned counsel for the accused as was accepted by the
\nHigh Court is maintained, it would mean that Section 391 of
\nthe Code would be a dead letter in the statute book. The
\nnecessity for additional evidence arises when the Court
\nfeels that some evidence which ought to have been before it
\nis not there or that some evidence has been left out or
\nerroneously brought in. In all cases it cannot be laid down
\nas a rule of universal application that the Court has to
\nfirst find out whether the evidence already on record is
\nsufficient. The nature and quality of the evidence on record
\nis also relevant. If the evidence already on record is shown
\nor found to be tainted, tailored to suit or help a
\nparticular party or side and the real truth has not and
\ncould not have been spoken or brought forth during trial, it
\nwould constitute merely an exercise in futility, if it
\nconsidered first whether the evidence already on record is
\nsufficient to dispose of the appeals. Disposal of appeal
\ndoes not mean disposal for statistical purposes but
\neffective and real disposal to achieve the object of any
\ntrial. The exercise has to be taken up together. It is not
\nthat the Court has to be satisfied that the additional
\nevidence would be necessary for rendering a verdict
\ndifferent from what was rendered by the trial Court. In a
\ngiven case even after assessing the additional evidence, the
\nHigh Court can maintain the verdict of the trial Court and
\nsimilarly the High Court on consideration of the additional
\nevidence can upset the trial Court’s verdict. It all depends
\nupon the relevance and acceptability of the additional
\nevidence and its qualitative worth in deciding the guilt or
\ninnocence of the accused.\n<\/p>\n
Merely because the High Court permits additional
\nevidence to be adduced, it does not necessarily lead to the
\nconclusion that the judgment of the trial Court was wrong.
\nThat decision has to be arrived at after assessing the
\nevidence that was before the Trial Court and the additional
\nevidence permitted to be adduced. The High Court has
\nobserved that question of accepting application for
\nadditional evidence will be dealt with separately, and in
\nfact dealt with it in a cryptic manner practically in one
\nparagraph and did not think it necessary to accept the
\nadditional evidence. But at the same time made threadbare
\nanalysis of the affidavits as if it had accepted it as
\nadditional evidence and was testing its acceptability. Even
\nthe conclusions arrived at with reference to those
\naffidavits do not appear to be correct and seem to suffer
\nfrom apparent judicial obstinacy and avowed determination to
\nreject it. For example, to brand a person as not truthful
\nbecause a different statement was given before the trial
\nCourt unmindful of the earliest statement given during
\ninvestigation and the reasons urged for turning hostile
\nbefore Court negates the legislative intent  and   purpose
\nof incorporating Section 391 in the Code. The question of
\nadmission of evidence initially or as additional evidence
\nunder Section 391 is distinct from the efficacy, reliability
\nand its acceptability for consideration of claims in the
\nappeal on merits. It is only after admission, the Court
\nshould consider in each case whether on account of earlier
\ncontradiction before Court and the testimony allowed to be
\ngiven as additional evidence, which of them or any one part
\nor parts of the depositions are creditworthy and acceptable,
\nafter a comparative analysis and consideration of the
\nprobabilities and probative value of the materials for
\nadjudging the truth. To reject it merely because of
\ncontradiction and that too in a sensitised case like the one
\nbefore Court with a horror and terror oriented history of
\nits own would amount to conspicuous omission and deliberate
\ndereliction of discharging functions judiciously and with a
\njustice-orientated mission. In a given case when the Court
\nis satisfied that for reasons on record the witness had not
\nstated truthfully before the trial Court and was willing to
\nspeak the truth before it, the power under Section 391 of
\nthe Code is to be exercised. It is to be noted at this stage
\nthat it is not the prosecution which alone can file an
\napplication under Section 391 of the Code. It can also be
\ndone, in an appropriate case by the accused to prove his
\ninnocence. Therefore, any approach without pragmatic
\nconsideration defeats the very purpose for which Section 391
\nof the Code has been enacted. Certain observations of the
\nHigh Court like, that if the accused persons were really
\nguilty they would not have waited for long to commit
\noffences or that they would have killed the victims in the
\nnight taking advantage of the darkness and\/or that the
\naccused persons had saved some persons belonging to the
\nother community were not only immaterial for the purpose of
\nadjudication of application for additional evidence but such
\nsurmises could have been carefully avoided at least in order
\nto observe and maintain the judicial calm and detachment
\nrequired of the learned Judges in the High Court. The
\nconclusions of the High Court that 65 to 70 persons
\nbelonging to the attacked community were saved by the
\naccused or others appears to be based on the evidence of the
\nrelatives of the accused who were surprisingly examined by
\nprosecution. We shall deal with the propriety of examining
\nsuch persons, infra. These aspects could have been, if at
\nall permissible to be done, considered after accepting the
\nprayer for additional evidence. It is not known as to what
\nextent these irrelevant materials have influenced the
\nultimate judgment of the High Court, in coming with such a
\nstrong and special plea in favour of a prosecuting agency
\nwhich has miserably failed to demonstrate any credibility by
\nits course of action. The entire approach of the High Court
\nsuffers from serious infirmities, its conclusions lopsided
\nand lacks proper or judicious application of mind.
\nArbitrariness is found writ large on the approach as well as
\nthe conclusions arrived at in the judgment under challenge,
\nin unreasonably keeping out relevant evidence from being
\nbrought on record.\n<\/p>\n
\tRight from the beginning, the stand of the appellant-
\nZahira was that the investigating agency was trying to help
\nthe accused persons and so was the public prosecutor. If the
\ninvestigation was faulty, it was not the fault of the
\nvictims or the witnesses. If the same was done in a manner
\nwith the object of helping the accused persons as it appears
\nto be apparent from what has transpired so far, it was an
\nadditional ground just and reasonable as well for accepting
\nthe additional evidence.\n<\/p>\n
In the case of a defective investigation the Court has
\nto be circumspect in evaluating the evidence and may have to
\nadopt an active and analytical role to ensure that truth is
\nfound by having recourse to Section 311 or at a later stage
\nalso resorting to Section 391 instead of throwing hands in
\nthe air in despair. It would not be right in acquitting an
\naccused person solely on account of the defect; to do so
\nwould tantamount to playing into the hands of the
\ninvestigating officer if the investigation is designedly
\ndefective. (See Karnel Singh v. State of M.P.<\/a> (1995 (5) SCC\n<\/p>\n
518).\n<\/p>\n
\tIn Paras Yadav and Ors. v. State of Bihar (1999 (2) SCC\n<\/p>\n
126) it was held that if the lapse or omission is committed
\nby the investigating agency or because of negligence the
\nprosecution evidence is required to be examined de hors such
\nomissions to find out whether the said evidence is reliable
\nor not. The contaminated conduct of officials should not
\nstand on the way of Courts getting at the truth by having
\nrecourse to Sections 311, 391 of the Code and Section 165 of
\nthe Evidence Act at the appropriate and relevant stages and
\nevaluating the entire evidence; otherwise the designed
\nmischief would be perpetuated with a premium to the
\noffenders and justice would not only be denied to the
\ncomplainant party but also made an ultimate casualty.\n<\/p>\n
\tAs was observed in Ram Bihari Yadav v. State of Bihar
\nand Ors. (1998 (4) SCC 517) if primacy is given to such
\ndesigned or negligent investigation, to the omission or
\nlapses by perfunctory investigation or omissions, the faith
\nand confidence of the people would be shaken not only in the
\nLaw enforcing agency but also in the administration of
\njustice in the hands of Courts. The view was again re-
\niterated in Amar Singh v. Balwinder Singh and Ors.<\/a> (2003 (2)
\nSCC 518).\n<\/p>\n
 \tIt is no doubt true that the accused persons have been
\nacquitted by the trial Court and the acquittal has been
\nupheld, but if the acquittal is unmerited and based on
\ntainted evidence, tailored investigation, unprincipled
\nprosecutor and perfunctory trial and evidence of
\nthreatened\/terrorised witnesses, it is no acquittal in the
\neye of law and no sanctity or credibility can be attached
\nand given to the so-called findings.  It seems to be nothing
\nbut a travesty of truth, fraud on legal process and the
\nresultant decisions of Courts – coram non judis and non est.
\nThere is, therefore, every justification to call for
\ninterference in these appeals.\n<\/p>\n
In a country like us with heterogeneous religions and
\nmultiracial and multilingual society which necessitates
\nprotection against discrimination on the ground of caste or
\nreligion taking lives of persons belonging to one or the
\nother religion is bound to have dangerous repercussions and
\nreactive effect on the society at large and may tend to
\nencourage fissiparous elements to undermine the unity and
\nsecurity of the nation on account of internal disturbances.
\nIt strikes at the very root of an orderly society, which the
\nfounding fathers of our Constitution dreamt of.\n<\/p>\n
\tWhen the ghastly killings take place in the land of
\nMahatama Gandhi it raises a very pertinent question as to
\nwhether some people have become so bankrupt in their
\nideology that they have deviated from everything which was
\nso dear to him.  When large number of people including
\ninnocent and helpless children and women are killed in a
\ndiabolic manner it brings disgrace to the entire society.
\nCriminals have no religion. No religion teaches violence and
\ncruelty-based religion is no religion at all, but a mere
\ncloak to usurp power by fanning ill feeling and playing on
\nfeelings aroused thereby. The golden thread passing through
\nevery religion is love and compassion. The fanatics who
\nspread violence in the name of religion are worse than
\nterrorists and more dangerous than an alien enemy.\n<\/p>\n
\tThe little drops of humanness which jointly make
\nhumanity a cherished desire of mankind had seemingly dried
\nup when the perpetrators of the crime had burnt alive
\nhelpless women and innocent children. Was it their fault
\nthat were born in the houses of persons belonging to a
\nparticular community? The still, said music of humanity had
\nbecome silent when it was forsaken by those who were
\nresponsible for the killings.\n<\/p>\n
“Little drops of
\n Water, little grains of sand
\n Make the mighty ocean
\n And the pleasant land,
\n Little deeds of kindness,
\n Little words of love
\n Help to make earth happy
\n Like the heaven above”\n<\/p>\n
 Said Julia A.F. Cabney in “Little Things”.\n<\/p>\n
\tIf one even cursorily glances through the records of
\nthe case, one gets a feeling that the justice delivery
\nsystem was being taken for a ride and literally allowed to
\nbe abused, misused and mutilated by subterfuge. The
\ninvestigation appears to be perfunctory and anything but
\nimpartial without any definite object of finding out the
\ntruth and bringing to book those who were responsible for
\nthe crime. The public prosecutor appears to have acted more
\nas a defence counsel than one whose duty was to present the
\ntruth before the Court. The Court in turn appeared to be a
\nsilent spectator, mute to the manipulations and preferred to
\nbe indifferent to sacrilege being committed to justice. The
\nrole of the State Government also leaves much to be desired.
\nOne gets a feeling that there was really no seriousness in
\nthe State’s approach in assailing the Trial Court’s
\njudgment. This is clearly indicated by the fact that the
\nfirst memorandum of appeal filed was an apology for the
\ngrounds. A second amendment was done, that too after this
\nCourt expressed its unhappiness over the perfunctory manner
\nin which the appeal was presented and challenge made. That
\nalso was not the end of the matter. There was a subsequent
\npetition for amendment. All this sadly reflects on the
\nquality of determination exhibited by the State and the
\nnature of seriousness shown to pursue the appeal. Criminal
\ntrials should not be reduced to be the mock trials or shadow
\nboxing or fixed trials.  Judicial Criminal Administration
\nSystem must be kept clean and beyond the reach of whimsical
\npolitical wills or agendas and properly insulated from
\ndiscriminatory standards or yardsticks of the type
\nprohibited by the mandate of the Constitution.\n<\/p>\n
\tThose who are responsible for protecting life and
\nproperties and ensuring that investigation is fair and
\nproper seem to have shown no real anxiety. Large number of
\npeople had lost their lives. Whether the accused persons
\nwere really assailants or not could have been established by
\na fair and impartial investigation. The modern day ‘Neros’
\nwere looking elsewhere when Best Bakery and innocent
\nchildren and helpless women were burning, and were probably
\ndeliberating how the perpetrators of the crime can be saved
\nor protected. Law and justice become flies in the hands of
\nthese “wanton boys”. When fences start to swallow the
\ncrops, no scope will be left for survival of law and order
\nor truth and justice. Public order as well as public
\ninterest become martyrs and monuments.\n<\/p>\n
\tIn the background of principles underlying Section 311
\nand Section 391 of the Code and Section 165 of the Evidence
\nAct it has to be seen as to whether the High Court’s
\napproach is correct and whether it had acted justly,
\nreasonably and fairly in placing premiums on the serious
\nlapses of grave magnitude by the prosecuting agencies and
\nthe Trial Court, as well. There are several infirmities
\nwhich are tell tale even to the naked eye of even an
\nordinary common man. The High Court has come to a definite
\nconclusion that the investigation carried out by the police
\nwas dishonest and faulty. That was and should have been per
\nse sufficient justification to direct a re-trial of the
\ncase. There was no reason for the High Court to come to the
\nfurther conclusion of its own about false implication
\nwithout concrete basis and that too merely on conjectures.
\nOn the other hand, the possibility of the investigating
\nagency trying to shield the accused persons keeping in view
\nthe methodology adopted and outturn of events can equally be
\nnot ruled out. When the investigation is dishonest and
\nfaulty, it cannot be only with the purpose of false
\nimplication. It may also be noted at this stage that the
\nHigh Court has even gone to the extent of holding that the
\nFIR was manipulated. There was no basis for such a
\npresumptive remark or arbitrary conclusion.\n<\/p>\n
\tThe High Court has come to a conclusion that Zahira
\nseems to have unfortunately for some reasons after the
\npronouncement of the judgment fallen into the hands of some
\nwho prefer to remain behind the curtain to come out with the
\naffidavit alleging threat during trial.  It has rejected the
\napplication for adducing additional evidence on the basis of
\nthe affidavit, but has found fault with the affidavit and
\nhastened to conclude unjustifiably that they are far from
\ntruth by condemning those who were obviously victims. The
\nquestion whether they were worthy of credence, and whether
\nthe subsequent stand of the witnesses was correct needed to
\nbe assessed, and adjudged judiciously on objective standards
\nwhich are the hallmark of a judicial pronouncement. Such
\nobservations if at all could have been only made after
\naccepting the prayer for additional evidence.  The disclosed
\npurpose in the State Government’s prayer with reference to
\nthe affidavits was to bring to High Court’s notice the
\nsituation which prevailed during trial and the reasons as to
\nwhy the witnesses gave the version as noted by the Trial
\nCourt. Whether the witness had told the truth before the
\nTrial Court or as stated in the affidavit, were matters for
\nassessment of evidence when admitted and tendered and when
\nthe affidavit itself was not tendered as evidence, the
\nquestion of analysing it to find fault was not the proper
\ncourse to be adopted. The affidavits were filed to emphasise
\nthe need for permitting additional evidence to be taken and
\nfor being considered as the evidence itself.  The High Court
\nhas also found that some persons were not present and,
\ntherefore, question of their statement being recorded by the
\npolice did not arise.  For coming to this conclusion, the
\nHigh Court noted that the statements under Section 161 of
\nthe Code were recorded in Gujarati language though the
\nwitnesses did not know Gujarati.  The reasoning is erroneous
\nfor more reasons than one. There was no material before the
\nHigh Court for coming to a finding that the persons did not
\nknow Gujarati since there may be a person who could converse
\nfluently in a language though not a literate to read and
\nwrite. Additionally, it is not a requirement in law that the
\nstatement under Section 161 of the Code has to be recorded
\nin the language known to the person giving the statement.
\nAs a matter of fact, the person giving the statement is not
\nrequired to sign the statement as is mandated in Section 162
\nof the Code. Sub-section (1) of Section 161 of the Code
\nprovides that the competent police officer may examine
\norally any person supposed to be acquainted with the facts
\nand circumstances of the case. Requirement is the
\nexamination by the concerned police officer. Sub-section (3)
\nis relevant, and it requires the police officer to reduce
\ninto writing any statement made to him in the course of an
\nexamination under this Section; and if he does so, he shall
\nmake a separate and true record of the statement of each
\nsuch person whose statement he records. Statement made by a
\nwitness to the police officer during investigation may be
\nreduced to writing. It is not obligatory on the part of the
\npolice officer to record any statement made to him. He may
\ndo so if he feels it necessary. What is enjoined by the
\nSection is a truthful disclosure by the person who is
\nexamined. In the above circumstance the conclusion of the
\nHigh Court holding that the persons were not present is
\nuntenable. The reasons indicated by the High Court to
\njustify non-examination of the eye-witnesses is also not
\nsustainable. In respect of one it has been said that
\nwhereabouts of the witness may not be known. There is
\nnothing on record to show that the efforts were made by the
\nprosecution to produce the witness for tendering evidence
\nand yet the net result was ‘untraceable’. In other words,
\nthe evidence which should have been brought before the Court
\nwas not done with any meticulous care or seriousness. It is
\ntrue that the prosecution is not bound to examine each and
\nevery person who has been named as witness.  A person named
\nas a witness may be given up when there is material to show
\nthat he has been gained over or that there is no likelihood
\nof the witness speaking the truth in the Court. There was no
\nsuch material brought to the notice of the Courts below to
\njustify non-examination. The materials on record are totally
\nsilent on this aspect.  Another aspect which has been
\nlightly brushed aside by the High Court is that one person
\nwho was to be examined on a particular date was examined
\nearlier than the date fixed.  This unusual conduct by the
\nprosecutor should have been seriously taken note of by the
\nTrial Court and also by the High Court. It is to be noted
\nthat the High Court has found fault with DCP Shri Piyush
\nPatel and has gone to the extent of saying that he has
\nmiserably failed to discharge his duties; while finding at
\nthe same time that police inspector Baria had acted fairly.
\nThe criticism according to us is uncalled for. Role of
\nPublic Prosecutor was also not in line with what is expected
\nof him. Though a Public Prosecutor is not supposed to be a
\npersecutor, yet the minimum that was required to be done to
\nfairly present the case of the prosecution was not done.
\nTime and again, this Court stressed upon the need of the
\ninvestigating officer being present during trial unless
\ncompelling reasons exist for a departure.  In the instant
\ncase, this does not appear to have been done, and there is
\nno explanation whatsoever why it was not done. Even Public
\nProsecutor does not appear to have taken note of this
\ndesirability.  In Shailendra Kumar v. State of Bihar and
\nOrs. (2001 (8) Supreme 13), it was observed as under:\n<\/p>\n
“In our view, in a murder trial it is sordid
\nand repulsive matter that without informing
\nthe police station officer-in-charge, the
\nmatters are proceeded by the court and by the
\nAPP and tried to be disposed of as if the
\nprosecution has not led any evidence.  From
\nthe facts stated above, it appears that
\naccused wants to frustrate the prosecution by
\nunjustified means and it appears that by one
\nway or the other the Addl. Sessions Judge as
\nwell as the APP have not taken any interest
\nin discharge of their duties.  It was the
\nduty of the sessions judge to issue summons
\nto the investigating officer if he failed to
\nremain present at the time of trial of the
\ncase. The presence of investigating officer
\nat the time of trial is must. It is his duty
\nto keep the witnesses present. If there is
\nfailure on part of any witness to remain
\npresent, it is the duty of the court to take
\nappropriate action including issuance of
\nbailable\/non-bailable warrants as the case
\nmay be. It should be well understood that
\nprosecution can not be frustrated by such
\nmethods and victims of the crime cannot be
\nleft in lurch.”\n<\/p>\n
A somewhat an unusual mode in contrast to the lapse
\ncommitted by non-examining victims and injured witnesses
\nadopted by the investigating agency and the prosecutor was
\nexamination of six relatives of accused persons. They have
\nexpectedly given a clean chit to the accused and labeled
\nthem as saviors. This unusual procedure was highlighted
\nbefore the High Court. But the same was not considered
\nrelevant as there is no legal bar. When we asked Mr.
\nRohtagi, learned counsel for the State of Gujarat as to
\nwhether this does not reflect badly on the conduct of
\ninvestigating agency and the prosecutor, he submitted that
\nthis was done to show the manner in which the incident had
\nhappened. This is a strange answer. Witnesses are examined
\nby prosecution to show primarily who is the accused. In this
\ncase it was nobody’s stand that the incident did not take
\nplace. That the conduct of investigating agency and the
\nprosecutor was not bona fide, is apparent and patent.\n<\/p>\n
So far as non-examination of some injured relatives are
\nconcerned, the High Court has held that in the absence of
\nany medical report, it appears that they were not present
\nand, therefore, held that the prosecutor might have decided
\nnot to examine Yasminbanu because there was no injury. This
\nis nothing but a wishful conclusion based on presumption.
\nIt is true that merely because the affidavit has been filed
\nstating that the witnesses were threatened, as a matter of
\nroutine, additional evidence should not be permitted.  But
\nwhen the circumstances as in this case clearly indicate that
\nthere is some truth or prima facie substance in the
\ngrievance made, having regard to background of events as
\nhappened the appropriate course for the Courts would be to
\nadmit additional evidence for final adjudication so that the
\nacceptability or otherwise of evidence tendered by way of
\nadditional evidence can be tested properly and legally
\ntested in the context of probative value of the two
\nversions. There cannot be straight-jacket formula or rule of
\nuniversal application when alone it can be done and when,
\nnot. As the provisions under Section 391 of the Code are by
\nway of an exception, the Court has to carefully consider the
\nneed for and desirability to accept additional evidence. We
\ndo not think it necessary to highlight all the infirmities
\nin the judgment of the High Court or the approach of the
\nTrial Court lest nothing credible or worth mentioning would
\nremain in the process. This appears to be a case where the
\ntruth has become a casualty in the trial. We are satisfied
\nthat it is fit and proper case, in the background of the
\nnature of additional evidence sought to be adduced and the
\nperfunctory manner of trial conducted on the basis of
\ntainted investigation a re-trial is a must and essentially
\ncalled for in order to save and preserve the justice
\ndelivery system unsullied and unscathed by vested interests.
\nWe should not be understood to have held that whenever
\nadditional evidence is accepted, re-trial is a necessary
\ncorollary. The case on hand is without parallel and
\ncomparison to any of the cases where even such grievances
\nwere sought to be made. It stands on its own as an exemplary
\none, special of its kind, necessary to prevent its
\nrecurrence. It is normally for the Appellate Court to decide
\nwhether the adjudication itself by taking into account the
\nadditional evidence would be proper or it would be
\nappropriate to direct a fresh trial, though, on the facts of
\nthis case, the direction for re-trial becomes inevitable.\n<\/p>\n
\tPrayer was made by learned counsel for the appellant
\nthat the trial should be conducted outside the State so that
\nthe unhealthy atmosphere which led to failure of miscarriage
\nof justice is not repeated.  This prayer has to be
\nconsidered in the background and keeping in view the spirit
\nof Section 406 of the Code. It is one of the salutory
\nprinciples of the administration of justice that justice
\nshould not only be done but it should be seen to be done.
\nHowever, a mere allegation that there is apprehension that
\njustice will not be done in a given case or that general
\nallegations of a surcharged atmosphere against a particular
\ncommunity alone does not suffice. The Court has to see
\nwhether the apprehension is reasonable or not. The state of
\nmind of the person who entertains apprehension, no doubt is
\na relevant factor but not the only determinative or
\nconcluding factor. But the Court must be fully satisfied
\nabout the existence of such conditions which would render
\ninevitably impossible the holding of a fair and impartial
\ntrial, uninfluenced by extraneous considerations that may
\nultimately undermine the confidence of reasonable and right
\nthinking citizen, in the justice delivery system. The
\napprehension must appear to the Court to be a reasonable
\none. This position has been highlighted in Gurcharan Das
\nChadha v. State of Rajasthan<\/a> (1966 (2) SCR 678), and K.
\nAmbazhagan v. The Superintendent of Police and others etc.
\n(JT 2003 (9) SC 31).\n<\/p>\n
\tKeeping in view the peculiar circumstances of the case,
\nand the ample evidence on record, glaringly demonstrating
\nsubversion of justice delivery system with no congeal and
\nconducive atmosphere still prevailing, we direct that the
\nre-trial shall be done by a Court under the jurisdiction of
\nBombay High Court. The Chief Justice of the said High Court
\nis requested to fix up a Court of Competent jurisdiction.\n<\/p>\n
We direct the State Government to appoint another Public
\nProsecutor and it shall be open to the affected persons to
\nsuggest any name which may also be taken into account in the
\ndecision to so appoint. Though the witnesses or the victims
\ndo not have any choice in the normal course to have a say in
\nthe matter of appointment of a Public Prosecutor, in view of
\nthe unusual factors noticed in this case, to accord such
\nliberties to the complainants party, would be appropriate.\n<\/p>\n
The fees and all other expenses of the public prosecutor
\nwho shall be entitled to assistance of one lawyer of his
\nchoice shall initially be paid by the State of Maharashtra,
\nwho will thereafter be entitled to get the same reimbursed
\nfrom the State of Gujarat. The State of Gujarat shall ensure
\nthat all the documents and records are forthwith transferred
\nto the Court nominated by the Chief Justice of the Bombay
\nHigh Court. The State of Gujarat shall also ensure that the
\nwitnesses are produced before the concerned Court whenever
\nthey are required to attend that Court. Necessary protection
\nshall be afforded to them so that they can depose freely
\nwithout any apprehension of threat or coercion from any
\nperson.  In case, any witness asks for protection, the State
\nof Maharashtra shall also provide such protection as deemed
\nnecessary, in addition to the protection to be provided for
\nby the State of Gujarat. All expenses necessary for the
\ntrial shall be initially borne by the State of Maharashtra,
\nto be reimbursed by the State of Gujarat.\n<\/p>\n
 Since we have directed re-trial it would be desirable
\nto the investigating agency or those supervising the
\ninvestigation, to act in terms of Section 173(8) of the
\nCode, as the circumstances seem to or may so warrant. The
\nDirector General of Police, Gujarat is directed to monitor
\nre-investigation, if any, to be taken up with the urgency
\nand utmost sincerity, as the circumstances warrant.\n<\/p>\n
Sub-section (8) of Section 173 of the Code permits
\nfurther investigation, and even de hors any direction from
\nthe Court as such, it is open to the police to conduct
\nproper investigation, even after the Court took cognizance
\nof any offence on the strength of a police report earlier
\nsubmitted.\n<\/p>\n
\tBefore we part with the case it would be appropriate to
\nnote some disturbing factors.  The High Court after hearing
\nthe appeal directed its dismissal on 26.12.2003 indicating
\nin the order that the reasons were to be subsequently given,
\nbecause the Court was closing for winter holidays.  This
\ncourse was adopted “due to paucity of time”. We see no
\nperceivable reason for the hurry. The accused were not in
\ncustody. Even if they were in custody, the course adopted
\nwas not permissible. This Court has in several cases
\ndeprecated the practice adopted by the High Court in the
\npresent case.\n<\/p>\n
      About two decades back this Court in State of Punjab
\nv. Jagdev Singe Talwandi (AIR<\/a> 1984 SC 444) had inter alia
\nobserved as follows :\n<\/p>\n
“We would like to take this
\nopportunity to point out that serious
\ndifficulties arise on account of the
\npractice increasingly adopted by the
\nHigh Courts of pronouncing the final
\norder without a reasoned judgment.  It
\nis desirable that the final order which
\nthe High Court intends to pass should
\nnot be announced until a reasoned
\njudgment is ready for pronouncement.\n<\/p>\n
Suppose, for example, that a final order
\nwithout a reasoned judgment is announced
\nby the High Court that a house shall be
\ndemolished, or that the custody of a
\nchild shall be handed over to one parent
\nas against the other, or that a person
\naccused of a serious charge is
\nacquitted, or that a statute is
\nunconstitutional or, as in the instant
\ncase, that a detenu be released from
\ndetention.  If the object of passing
\nsuch orders is to ensure speedy
\ncompliance with them, that object is
\nmore often defeated by the aggrieved
\nparty filing a special leave petition in
\nthis Court against the order passed by
\nthe High Court.  That places this Court
\nin a predicament because, without the
\nbenefit of the reasoning of the High
\nCourt, it is difficult for this Court to
\nallow the bare order to be implemented.\n<\/p>\n
The result inevitably is that the
\noperation of the order passed by the
\nHigh Court has to be stayed pending
\ndelivery of the reasoned judgment.”\n<\/p>\n
It may be thought that such orders are passed by this
\nCourt and, therefore, there is no reason why the High Courts
\nshould not do the same.  We would like to point out that the
\norders passed by this Court are final and no further appeal
\nlies against them.  The Supreme Court is the final Court in
\nthe hierarchy of our Courts. Orders passed by the High Court
\nare subject to the appellate jurisdiction of this Court
\nunder Article 136 of the Constitution and other provisions
\nof the concerned statutes. We thought it necessary to make
\nthese observations so that a practice which is not a very
\ndesirable one and which achieves no useful purpose may not
\ngrow out of and beyond its present infancy. What is still
\nmore baffling is that written arguments of the State were
\nfiled on 29.12.2003 and by the accused persons on 1.1.2004.
\nA grievance is made that when the petitioner in Criminal
\nRevision No.583 of 2003 wanted to file notes of arguments
\nthat were not accepted making a departure from the cases of
\nthe State and the accused. If the written arguments were to
\nbe on record, it is not known as to why the High Court
\ndismissed the appeal. If it had already arrived at a
\nparticular view there was no question of filing written
\narguments.\n<\/p>\n
The High Court appears to have miserably failed to
\nmaintain the required judicial balance and sobriety in
\nmaking unwarranted references to personalities and their
\nlegitimate moves before competent courts – the highest court
\nof the nation, despite knowing fully well that it could not
\ndeal with such aspects or matters. Irresponsible
\nallegations, suggestions and challenges may be made by
\nparties, though not permissible or pursued defiantly during
\ncourse of arguments at times with the blessings or veiled
\nsupport of the Presiding Officers of Court.  But, such
\nbesmirching tacts, meant as innuendos or serve as surrogacy
\nought not to be made or allowed to be made, to become part
\nof solemn judgments, of at any rate by High Courts, which
\nare created as Court of record as well. Decency, decorum and
\njudicial discipline should never be made casualties by
\nadopting such intemperate attitudes of judicial obstinacy.
\nThe High Court also made some observations and remarks about
\npersons\/constitutional bodies like NHRC who were not before
\nit.  We had an occasion to deal with this aspect to certain
\nextent in the appeal relating to SLP (Crl.) Nos. 530-
\n532\/2004. The move adopted and manner of references made, in
\npara no. 3 of the judgment except the last limb (sub-para)
\nis not in good taste or decorous. It may be noted that
\ncertain reference is made therein or grievances purportedly
\nmade before the High Court about role of NHRC. When we asked
\nMr. Sushil Kumar who purportedly made the submissions before
\nthe High Court, during the course of hearing, he stated that
\nhe had not made any such submission as reflected in the
\njudgment. This is certainly intriguing. Proceedings of the
\ncourt normally reflect the true state of affairs. Even if it
\nis accepted that any such submission was made, it was not
\nproper or necessary for the High Court to refer to them in
\nthe judgment, to finally state that no serious note was
\ntaken of the submissions. Avoidance of such manoeuvres would
\nhave augured well with the judicial discipline. We order the
\nexpunging and deletion of the contents of para 3 of the
\njudgment except the last limb of the sub-para therein and it
\nshall be always read to have not formed part of the
\njudgment.\n<\/p>\n
A plea which was emphasised by Mr. Tulsi relates to the
\ndesirability of restraint in publication\/exhibition of
\ndetails relating to sensitive cases, more particularly
\ndescription of alleged accused persons in the
\nprint\/electronic\/broadcast medias. According to him, “media
\ntrial” causes indelible prejudice to the accused persons.
\nThis is sensitive and complex issue, which we do not think
\nit proper to deal in detail in these appeals. The same may
\nbe left open for an appropriate case where the media is also
\nduly and effectively represented.\n<\/p>\n
If the accused persons were not on bail at the time of
\nconclusion of the trial, they shall go back to custody, if
\non the other hand they were on bail that order shall
\ncontinue unless modified by the concerned Court.  Since we
\nare directing a re-trial, it would be appropriate if same is
\ntaken up on day-to-day basis keeping in view the mandate of
\nSection 309 of the Code and completed by the end of December
\n2004.\n<\/p>\n
The appeals are allowed on the terms and to the extent
\nindicated above.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Zahira Habibulla H Sheikh And Anr vs State Of Gujarat And Ors on 12 April, 2004 Author: J Arijit Pasayat Bench: Doraiswamy Raju, Arijit Pasayat CASE NO.: Appeal (crl.) 446-449 of 2004 PETITIONER: Zahira Habibulla H Sheikh and Anr. RESPONDENT: State of Gujarat and Ors. DATE OF JUDGMENT: 12\/04\/2004 BENCH: DORAISWAMY […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-72833","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nZahira Habibulla H Sheikh And Anr vs State Of Gujarat And Ors on 12 April, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/zahira-habibulla-h-sheikh-and-anr-vs-state-of-gujarat-and-ors-on-12-april-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Zahira Habibulla H Sheikh And Anr vs State Of Gujarat And Ors on 12 April, 2004 - 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