2006 Supreme(SC) 218

2006(2) Supreme 598
Supreme Court of India
(From Gujarat High Court)
Arijit Pasayat and H.K. Sema, JJ.
Zahira Habibullah Sheikh & Anr. —Appellants
versus
State of Gujarat & Ors. —Respondents
Criminal Misc. Petition Nos. 6658-6661 of 2004
In
Criminal Appeal Nos. 446-449 of 2004
Decided on 8-3-2006
Counsel for the Parties :
For the Appellants : Dinesh Kumar Garg, Manzolor Ali Khan, Pavit Singh, Ms. Aparna Bhat, P. Ramesh Kumar, Ms. Afreen Siddiqui and Ms. Madhulika Mohta, Advocates.
For the Respondents : Ms. Hemantika Wahi, Dr. Kailash Chand, A.P. Mayee, V.N. Raghupathy, Sanjay Jain, S. Muralidhar, Manoj Goel, Shuvodeep Roy, Wajiih Shafiq, Brij Bhushan, Manoj Goel, Abha R. Sharma and H.A. Raichura Advocates.

Very Important Points1. Zahira who was projected as the star witness in Best Bakery case is held guilty of contempt of the Supreme Court and is sentenced to undergo simple imprisonment for one year and to pay cost of Rs. 50,000/-.2. In a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affect the whole community.3. 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.

Headnote:(i) Contempt of Courts Act, 1971—Section 15—Constitution of India, 1950—Article 129 read with Article 142(2); Entry 77, List I—Contempt of Supreme Court—Gujarat riot case, Bakery case—Zahira was the material witness, projected as the star witness—She made conflicting statements before the Supreme Court—Zahira’s allegations regarding absence of an atmosphere conducive to fair trial—Her grievance that she was intimidated, threatened and coerced to depart from the truth and to make statement in Court which did not reflect the reality—Trial Court on basis of statements made by witnesses in Court directed acquittal of accused persons—Retrial was ordered by the Supreme Court—A petition was filed alleging that Zahira’s press statement made in presence of government officials while the trial was on before a Court amounted to contempt of the Supreme Court—She had changed her version and disowned the statements made in the Supreme Court and before various bodies like National Human Rights Commission—Findings recorded by the Inquiry Officer appointed by the Supreme Court that Zahira had changed her stand at different stages and has departed from statements made before the Supreme Court—It was reported that money played a vital role in the change of stand—It has been found that Zahira has not been able to explain assets in her possession—Zahira is held guilty of contempt of Court—Award of sentence of one year simple imprisonment —Imposition of cost of Rs. 50,000/-.

       Held : In the aforesaid background, we direct as follows :

       (1) Zahira is sentenced to undergo simple imprisonment for one year and to pay cost of Rs. 50,000/- and in case of default of payment within two months, she shall suffer further imprisonment of one year;

       (2) Her assets including bank deposits shall remain attached for a period of three months. The Income Tax Authorities are directed to initiate proceedings requiring her to explain the sources of acquisition of various assets and the expenses met by her during the period from 1.1.2002 till today. It is made clear that any observation made about her having not satisfactorily explained the aforesaid aspects would not be treated as conclusive. The proceedings shall be conducted in accordance with law. The Chief Commissioner, Vadodara is directed to take immediate steps for initiation of appropriate proceedings. It shall be open to Income Tax authorities to direct continuance of the attachment in accordance with law. If so advised, the Income Tax Authorities shall also require Madhu Srivastava and Bhattoo Srivastava to explain as to why the claim as made in the VCD of paying money shall not be further enquired into and if any tangible material comes to surface, appropriate action under the Income Tax Law shall be taken notwithstanding the findings recorded by the Inquiry Officer that there is no acceptable material to show that they had paid money, as claimed, to Zahira. We make it clear that we are not directing initiation of proceedings as such, but leaving the matter to the Income Tax Authorities to take a decision. The Trial Court shall decide the matter before it without being influenced by any finding/observation made by the Inquiry Officer or by the fact that we have accepted the report and directed consequential action. (Para 42)

       Whatever be the fate of the trial before the Court at Mumbai where the trial is stated to be going on and the effect of her statement made during trial shall be considered in the trial itself. Acceptance of the report in the present proceedings cannot have any determinative role in the trial. Serious questions arise as to the role played by witnesses who changed their versions more frequently than chameleons. Zahira’s role in the whole case is an eye-opener for all concerned with the administration of criminal justice. As highlighted at the threshold the criminal justice system is likely to be affected if persons like Zahira are to be left unpunished. Not only the role of Zahira but also of others whose conduct and approach before the Inquiry Officer has been highlighted needs to be noted. The Inquiry Officer has found that Zahira could not explain her assets and the explanations given by her in respect of the sources of bank deposits etc. have been found to be unacceptable. We find no reason to take a different view. (Para 17)

       (ii) Constitution of India—Entry 77 List I, Articles 129 r/w Article 142(2)—Contempt of Courts Act, 1971—Section 15—Contempt of Supreme Court—Sentence—Nature of punishment which may be imposed on a contemner—No such law has been enacted by the Parliament—Nature of punishment prescribed under the Contempt of Courts Act may act as a guide for the Supreme Court—However, extent of punishment as prescribed under that Act can apply only to the High Courts.

       Held : Parliament by virtue of Entry 77 List I is competent to enact a law relating to the powers of the Supreme Court with regard to contempt of itself and such a law may prescribe the nature of punishment which may be imposed on a contemner by virtue of the provisions of Article 129 read with Article 142(2) of the Constitution of India, 1950. Since, no such law has been enacted by Parliament, the nature of punishment prescribed under the Contempt of Courts Act, 1971 may act as a guide for the Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme Court, except that Section 15 of the Act prescribes procedural mode for taking cognizance of criminal contempt by the Supreme Court also. Section 15, however, is not a substantive provision conferring contempt jurisdiction. The judgment in Sukhdev Singh Sodhi v. Chief Justice and Judges of the PEPSU High Court (AIR 1954 SC 186) as regards the extent of "maximum punishment" which can be imposed upon a contemner must, therefore, be construed as dealing with the powers of the High Courts only and not of this Court in that behalf. In Supreme Court Bar Association v. Union of India and Anr. (AIR 1998 SC 1895), this Court expressed no final opinion on that question since that issue, strictly speaking, did not arise for decision in that case. The question regarding the restriction or limitation on the extent of punishment, which this Court may award while exercising its contempt jurisdiction, it was observed, may be decided in a proper case, when so raised. We may note that a three Judge Bench in Suo Motu Contempt Petition 301 of 2003 by judgment dated 19.12.2003 in re: Sri Pravakar Behera (2003(10) SCALE 1726) imposed cost of Rs. 50,000/-. (Para 20)

       (iii) Criminal Trial—Role of Courts in justice delivery system—Role to be played by Courts, witnesses, investigating officers, public prosecutors has to be focussed, more particularly when eyebrows are raised about their roles.

       Held : The complex pattern of life which is never static requires a fresher outlook and a timely and vigorous moulding of old precepts to some new conditions, ideas and ideals. If the Court acts contrary to the role it is expected to play, it will be destruction of the fundamental edifice on which justice delivery system stands. People for whose benefit the Courts exists shall start doubting the efficacy of the system. Justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking that "the Judge was biased". (Per Lord Denning MR in Metropolitan Properties Ltd. v. Lannon (1968) 3 All ER 304 (CA). The perception may be wrong about the judge’s bias, but the Judge concerned must be careful to see that no such impression gains ground. Judges like Ceaser’s wife should be above suspicion. (Para 21)

       By not acting in the expected manner a judge exposes himself to unnecessary criticism. At the same time the Judge is not to innovative at pleasure. He is not a Knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness, as observed by Cardozo in "The Nature of Judicial Process". It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep promise to justice and it cannot stay petrified and sit non-challantly. The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection loose hope. (Paras 22 & 23)

       (iv) Criminal Procedure Code, 1973—Section 311—Power to summon material witness or examine person present—Duty of Court—Object underlying Section 311 of the Code—Discretion conferred is to be exercised judiciously.

       Held : The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, ‘Evidence Act’) are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant. (Paras 25 to 28)