2004 Supreme(SC) 451

2004(3) Supreme 210
Supreme Court of India
(From Gujarat High Court)
Doraiswamy Raju & Arijit Pasayat, JJ.
Zahira Habibulla H. Sheikh & Anr. -Appellants
versus
State of Gujarat & Ors. -Respondents
Criminal Appeal Nos. 446-449 of 2004
(Arising out of SLP (Crl.) Nos. 538-541/2004)
With
Criminal Appeal Nos. 450-452/2004
(Arising out of SLP (Crl.) Nos. 1039-1041/2004)
Decided on 12-4-2004
Counsel for the Parties :
For the Appellants : Kapil Sibal, Sr. Advocate, Mihir Desai, Ms. Aparna Bhat, P. Ramesh Kumar, Ms. Priya Kiran, Brijesh Kalappa, Advocates.
For the State of Gujarat : Mukul Rohtagi, Additional Solicitor General, Ms. Hemantika Wahi, Ms. Prachi Bajpai, Advocates.
For the Respondents : Sushil Kumar, K.T.S. Tulsi, Sr. Advocates, Nikhil Goel, Adolf Mathew, Vinay Arora, Sanjay Jain, Dr. Kailash Chand, Vijay Patel, Advocates.

Very important points
1. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer and in an appropriate case accept it.
2. Whether a re-trial under Section 386 Cr.P.C. or taking up of additional evidence u/s 391 Cr.P.C. is the proper procedure will depend on the facts and circumstances of each case for which no straight jacket formula of universal and invariable application can be formulated.
3. In the case of defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analystical role.

Headnote:(i) Criminal Procedure Code, 1973 -Sections 311, 391 and 173(8)-Best Bakery case-Communal riot burning many people to death-Re-trial-Appeal against acquittal filed by one of the eye witnesses-During trial she had resiled from the statements made during investigation-Allegations that she was threatened by powerful politicians-Prayer for retrial and for permission to adduce additional evidence-Appellant’s case that right from beginning investigating agency was trying to help accused persons and so was the Public Prosecutor-Defective investigation-Justice delivery system was being taken for a ride and allowed to be abused, misused-Public Prosecutor appears to have acted more as a defence counsel than one whose duty was to present truth before the Court-There was no seriousness in State’s approach in assailing Trial Court’s judgment-Whether High Court acted fairly, justly in placing premium on serious lapses of grave magnitude by prosecuting agencies-(No)-Order for re-trial by Bombay High Court.

       Held : Right from the beginning, the stand of the appellant-Zahira was that the investigating agency was trying to help the accused persons and so was the public prosecutor. If the investigation was faulty, it was not the fault of the victims or the witnesses. If the same was done in a manner with the object of helping the accused persons as it appears to be apparent from what has transpired so far, it was an additional ground just and reasonable as well for accepting the additional evidence. (Para 60)

       In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (Para 61)

       It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decisions of Courts - coram non judis and non est. There is, therefore, every justification to call for interference in these appeals. (Para 64)

       If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the State Government also leaves much to be desired. One gets a feeling that there was really no seriousness in the State’s approach in assailing the Trial Court’s judgment. This is clearly indicated by the fact that the first memorandum of appeal filed was an apology for the grounds. A second amendment was done, that too after this Court expressed its unhappiness over the perfunctory manner in which the appeal was presented and challenge made. That also was not the end of the matter. There was a subsequent petition for amendment. All this sadly reflects on the quality of determination exhibited by the State and the nature of seriousness shown to pursue the appeal. Criminal trials should not be reduced to be the mock trials or shadow boxing or fixed trials. Judicial Criminal Administration System must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution. (Para 68)

       Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become files in the hands of these “wanton boys”. When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order as well as ­public interest become martyrs and monuments. (Para 69)

       In the background of principles underlying Section 311 and Section 391 of the Code and Section 165 of the Evidence Act is has to be seen as to whether the High Court’s approach is correct and whether it had acted justly, reasonably and fairly in placing premiums on the serious lapses of grave magnitude by the prosecuting agencies and the Trial Court, as well. There are several infirmities which are tell tale even to the naked eye of even an ordinary common man. The High Court has come to a definite conclusion that the investigation carried out by the police was dishonest and faulty. That was and should have been per se sufficient justification to direct a re-trial of the case. There was no reason for the High Court to come to the further conclusion of its own about false implication without concrete basis and that too merely on conjectures. On the other hand, the possibility of the investigating agency trying to shield the accused persons keeping in view the methodology adopted and outturn of events can equally be not ruled out. When the investigation is dishonest and faulty, it cannot be only with the purpose of false implication. It may also be noted at this stage that the High Court has even gone to the extent of holding that the FIR was ­manipulated. There was no basis for such a presumptive remark or arbitrary conclusion. (Para 70)

       The High Court has come to a conclusion that Zahira seems to have unfortunately for some reasons after the pronouncement of the judgment fallen into the hands of some who prefer to remain behind the curtain to come out with the affidavit alleging threat during trial. It has rejected the application for adducing additional evidence on the basis of the affidavit, but has found fault with the affidavit and hastened to conclude unjustifiably that they are far from truth by condemning those who were obviously victims. The question whether they were worthy of credence, and whether the subsequent stand of the witnesses was correct needed to be assessed, and adjudged judiciously on objective standards which are the hallmark of a judicial pronouncement. Such observations if at all could have been only made after accepting the prayer for additional evidence. The disclosed purpose in the State Government’s prayer with reference to the affidavits was to bring to High Court’s notice the situation which prevailed during trial and the reasons as to why the witnesses gave the version as noted by the Trial Court. Whether the witness had told the truth before the Trial Court or as stated in the affidavit, were matters for assessment of evidence when admitted and tendered and when the affidavit itself was not tendered as evidence, the question of analysing it to find fault was not the proper course to be adopted. The affidavits were filed to emphasise the need for permitting additional evidence to be taken and for being considered as the evidence itself. (Para 71)

       Keeping in view the peculiar circumstances of the case, and the ample evidence on record, glaringly demonstrating subversion of justice delivery system with no congeal and conducive atmosphere still prevailing, we direct that the re-trial shall be done by a Court under the jurisdiction of Bombay High Court. The Chief Justice of the said High Court is requested to fix up a Court of Competent jurisdiction. (Para 75)

       Since we have directed re-trial it would be desirable to the investigating agency or those supervising the investigation, to act in terms of Section 173(8) of the Code, as the circumstances seem to or may so warrant. The Director General of Police, Gujarat is directed to monitor re-investigation, if any, to be taken up with the urgency and utmost sincerity, as the circumstances warrant. (Para 78)

       (ii) Criminal Procedure Code, 1973 -Section 406-Prayer for transfer of trial from State of Gujarat-Allegations of unhealthy atmosphere which led to failure of miscarriage of justice-Mere apprehension that justice will not be done in a given case or general allegations of a surcharged atmosphere against a particular community alone does not suffice-Court has to see whether apprehension is reasonable or not-State of mind of the person who entertains apprehension is a relevant factor-Ample evidence on record, glaringly demonstrating subversion of justice delivery system with no cogent and conducive atmosphere still prevailing-Court ordered that trial shall be done by a Court under the jurisdiction of Bombay High Court. (Paras 74 and 75)

       (iii) Criminal Trial-Fair trial, concept of-Prohibition against tampering with witness, victim or informant-Courts have to take a participatory role in a trial-Criminal Procedure Code, 1973-Sections 311 and 391-Evidence Act, 1872-Section 165.

       Held : A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. (Paras 38 to 40)

       Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the `TADA Act’) have taken note of the reluctance shown by witnesses to depose against dangerous criminals- terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies. (Para 41)