J.B. PARDIWALA, J.

““Witnesses” as Benthem said: are the eyes and ears of justice. Hence. the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering the truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to 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.”

1. I deem appropriate to preface my judgment with the aforesaid observations of the Supreme Court made in the case of Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158], because in the case on hand, out of 195 witnesses examined by the prosecuting agency, 105 of those have been declared as hostile. All the important witnesses including the eyewitnesses resiled from their statements made before the police and turned hostile on account of tampering and maneuvering at the end of the accused persons, thereby, reducing the trial to a mere farce.

2. A devastated and crestfallen father, who lost his young son on being brazenly murdered in cold blood, cries for justice. The wailing father says that the trial has been a farce. He points that out of 195 witnesses examined by the prosecuting agency, 105 of those turned hostile. The father says that the main accused, a former member of the Parliament, by his sheer power and position, won over all the witnesses including the eyewitnesses. The father of the dec