Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 901

2009(3) Supreme 649
SUPREME COURT OF INDIA
Dr. Arijit Pasayat, P. Sathasivam and Aftab Alam, JJ.
National Human Rights Commission — Petitioner
versus
State of Gujarat and Ors. — Respondents
Writ Petition (Crl.) No. 109 of 2003
With
Crl.M.P. No.10719/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 7078/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 7827/2003, 8193/2003 & 8194/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 11668/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 11689/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 4782/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 3741/2004 & 3742/2004 in WP (Crl.) No.109/2003
Crl.M.P. No. 6864/2004 in WP (Crl.) No.109/2003
Crl.M.P. No. 9236/2005 in WP (Crl.) No.109/2003
Crl.M.P. No. 6767/2006 in WP (Crl.) No.109/2003
Crl.M.P. No. 7824/2007 in WP (Crl.) No.109/2003
W.P. (Crl.) No.D.17953/2003
TP (Crl.) Nos. 194-202 and 326-329/2003
SLP (Crl.) No.7951/2002
SLP (Crl.) No.4409/2003
SLP(Crl.) No.5309/2003
WP(Crl.) No.216/2003
TP(Crl.) No. 66-72/2004
TP(Crl.) No.43 of 2004
WP(Crl.) No. 118 of 2003
TP(Crl.) Nos. 233-234/2004
WP (Crl.) Nos. 37-52/2002
WP (Crl.) No.284/2003
Crl.M.P. No.6767/2006 in Crl.M.P.Nos. 3741-3742/2004 in
WP(Crl.)No.109/2003 Crl.M.P. No.4485/2006 in SLP (Crl.) No.3770/2003
Decided on : 01-05-2009

Advocates appeared:
For the Appellant :Harish N. Salve, Sr. Adv., (A.C.), Ms. Meenakshi Grover, B.V. Desai (A.C.), Rahul Gupta, Ms. Reema Sharma, Sanjay Parekh, Ms. Shilpa Gupta, Gopal, Umed Singh Gulia-in-person, Amit Singh Chauhan, Ejaz Maqbool, Huzefa Ahmadi, Ms. Aparna Bhat, Anand Grover, Ms. Lalit Mohini, Naveen R. Nath, Ms. Shobha, Advocates.
For the Respondent:Gopal Subramaniam, ASG, Manjit Singh, AAG, Arun Jaitley, Mukul Rohtagi, R. Dash, Rajiv Kumar Dubey, M.S Ganesh, Ms. H. Wahi, Saurav Kirpal, Ms. Pinky, Ms. Jesal, R. Basant, D.D. Kamth, K.N. Madhusoodhan, R. Satish, Dr. Natis A. Siddiqui, Anil Shrivastav, Ritu Raj, Syidmajookbakki, A. Mariarputham, Mrs. Aruna Mathur (forM/s. Arputham, Aruna & Co.), Ms. Anita Shenoy, s. Udaya Kumar Sagar, Ms. Bina Madhavan, Tarun Satija (for M/s. Lawyer’s Knit & Co.), Manish Kumar, Ansar Ahmad Chaudhary, Manoj Dwivedi, G. Venkateshwar, Anil Shrivastav, Ritu Raj, V.S. Pragasam, S.J. Aristotle, Prabu Rama Subramanian, Esward Belho, Rituraj Biswas, P. Athuimei R. Naga, Manjit Singh, T.V. George, K.H. Nobin Singh, Ms. Varuna Bhandari Gugnani, Rajesh Singh, S. Wsim A. Qadri, Ms. Anil Katiyar, D.s. Mahra, Ms. Aparna Bhat, K. Sheshchary, Ms. Madhulika Mohta, Atul Jha, D.K. Sinha, Ajay Pal, Gopal Singh, Ms. Shweta Singh, Manish Kumar, Ms. Sangita Singh, Anand Grover, Ms. Lalit Mohini Bhat, Naveen R. Nath, C.D. Singh, Riku Sarma (for M/s. Corporate Law Group), Tara Chandra Sharma, Ms. Neelam Sharma, K.R. Sasiprabhu, Ms. A. Subhashini, J.S. Attri, Bimal Roy Jad, Ravi Prakash Mehrotra, Radha Shyam Jena, P.V. Dinesh, Gopal Prasad, Gautam Godara, R.K. Adsure, Ranjan Mukherjee, Amit Kr. Chawla, Sanjay R. Hegde, P. Parmeswaran, AND. Rao, Sameer Pareskh & Co., S.N. Bhat, Advocates.

IMPORTANT POINT
Directions for fair trial and protection of the victims/witnesses issued.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 173 – The STF has worked with apparent thoroughness – STF directed to continue to function until completion of trial in all cases. (Para 4)
        (b) Code of Criminal Procedure, 1973 – Chapter XXIII – Witnesses form the key ingredient in a criminal trial – It is the testimonies of these very witnesses, which establishes the guilt of the accused – Importance of the witnesses in a criminal trial does not need any reiteration – Yet no law has yet been enacted, not even a scheme has been framed for giving protection to the witnesses. (Paras 7 to 9)
        (2006)3 SCC 374; (2004)4 SCC 158 – Relied upon.
        (c) Witness Protection Programme – Witness protection programme in other jurisdictions surveyed – Still, it would not be proper to give any general directions for witness protection – However, need for setting up separate victim and witness protection units in the trial of mass crimes stressed. (Paras 16 to 24)
        (d) Criminal Justice – Need to protect the rights of the accused as well as the victim emphasized. (Para 26)
        (e) Administration of Justice – In order to maintain decorum in the court room and to ensure that victims/witnesses are not intimidated within the court rooms, it is necessary for the court to impose reasonable restrictions on the entry of persons into the court room. (Para 27)
        (f) Code of Criminal Procedure, 1973 – Section 25A – Public prosecutors have paramount role in conduct of criminal proceedings – Hence desirability of separation of prosecution agency from investigation agency was stressed – This resulted in insertion of section 25A providing for creation of a Directorate of Prosecution in every state. (Paras 29 and 33)
        1995 Supp (3) SCC 37 – Relied upon.
        (g) Criminal Trial – Victim is an inseparable stakeholder in the adjudicating process. (Para 34)
        (h) Criminal Trial – Rights of the Victim – A closure report by the Prosecution cannot be accepted by the court without hearing the informant. (Para 39)
        (1997) 7 SCC 614; AIR 1968 SC 117; (2001)3 SCC 462 – Relied upon.
        (i) Administration of Justice – Witness protection – Direction issued to provide protection when asked for in order to be able to depose freely in the court. (Para 42)
       Facts of the case :
        1. The Gujarat Government was directed to constitute a five members Special Investigation Team (in short the ‘SIT’) to be headed by Mr. R.K. Raghavan, former Director of the Central Bureau of Investigation to undertake inquiry/investigation including further investigation in nine cases. It was further directed that the SIT shall submit its report within a particular time.
        2. On 11.2.2009 the SIT has submitted its consolidated report. It has indicated therein that since its constitution the SIT has made considerable progress in respect of each of the nine cases
        3. Several important aspects need to be noted in these cases. Firstly, due to the efforts of SIT, persons who were not earlier arrayed as accused have now been arrayed as accused. From the details indicated above it appears that in most of the cases a large number of witnesses were also examined in each case.
       Finding of the Court :
        STF has done good work and should continue its functions till completion of the trial of all the cases.
       Result : Directions for fair trial and protection of the victims/witnesses issued.

JUDGMENT

Dr. Arijit Pasayat, J.—

1. By order dated 26.3.2008 in this group of cases this Court had directed the Gujarat Government to constitute a five members Special Investigation Team (in short the ‘SIT’) to be headed by Mr. R.K. Raghavan, former Director of the Central Bureau of Investigation to undertake inquiry/investigation including further investigation in nine cases. It was further directed that the SIT shall submit its report within a particular time. The State Government issued a Notification dated 1.4.2008 constituting the SIT. On 11.2.2009 the SIT has submitted its consolidated report. It has indicated therein that since its constitution the SIT has made considerable progress in respect of each of the nine cases and the current status is as follows:

1: Godhra Railway Police Station Cr. No 09/02

Applications received 63

Witnesses examined 183(125 old & 61 new)

Number arrested —

Charge sheets filed –

Stage of investigation Completed

2: Khambholaj Police Station Cr. No 23/02

Applications received 17

Witnesses examined 85(30 old & 55 new)

Number arrested Court is requested to issue process against 16 accused

Charge sheets filed Amended separate charge sheet-1

Stage of investigation Completed

3: Khambholaj Police Station Cr. No 27/02

Applications received 17

Witnesses examined 39

Number arrested –

Charge sheets filed –

Stage of investigation Completed

4: Naroda Police Station Cr. No 98/02

Applications received 06

Witnesses examined 450

Number arrested 20

Chargesheets filed 02

Stage of investigation Nearly complete

5: Naroda Police Station Cr. No 100/02

Applications received 88

Witnesses examined 341

Number arrested 17

Chargesheets filed 01

Stage of investigation Nearly complete

6. Meghaninagar Police Station Cr. No 67/02

Applications received 59

Witnesses examined 227

Number arrested 18

Chargesheets filed 03

Stage of investigation. Nearly complete

7: Visnagar Police Station Cr. No 60/02

Applications received 05

Witnesses examined 42

Number arrested 03

Chargesheets filed 01

Stage of investigation Nearly complete

8. Vijapur Police Station Cr.No.46/02

Applications received 13

Witnesses examined 39

Number arrested 21

Chargesheets filed 02

Stage of investigation Completed

9. Prantij Police Station Cr.No.100/02

Applications received 10

Witnesses examined 24 (14 old and 10 new)

Number arrested –

Chargesheets filed –

Stage of investigation Completed

2. In separate sealed covers the IO’s report in each case accompanied by the Supervising IGP and the Chairman’s comments were submitted. The other members of the team are Shri C.B. Satpathy, Smt. Geetha Johri, Shri Shivanand Jha and Shri Ashish Bhatia. The last three are officers of the Indian Police Service from the Gujarat cadre.

3. Pursuant to the directions given by this Court copies of the report were supplied to learned Amicus Curiae and learned counsel for the State of Gujarat. Suggestions have been given by learned Amicus Curiae, learned counsel for the State and some of the parties in the proceedings.

4. Several important aspects need to be noted in these cases. Firstly, due to the efforts of SIT, persons who were not earlier arrayed as accused have now been arrayed as accused. From the details indicated above it appears that in most of the cases a large number of persons have been additionally made accused. Besides this, a large number of witnesses were also examined in each case. This goes to show the apparent thoroughness with which the SIT has worked. Therefore, the SIT shall continue to function until the completion of trial in all the cases and if any further inquiry/investigation is to be done the same can be done as provided in law, more particularly, under Section 173 (8) of the Code of Criminal Proceudre,1973 (in short the ‘Code’).

5. A few important aspects concerning the cases need to be noted.

(1) Fair trial

(2) Modalities to ensure that the witnesses depose freely and in that context the need to protect the witnesses from interference by person(s) Connected with it

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2009 Supreme(SC) 901

IMPORTANT POINT Directions for fair trial and protection of the victims/witnesses issued.

Cases Referred (6)

IMPORTANT POINT
Directions for fair trial and protection of the victims/witnesses issued.