Advocates:
HEMANTIKA WAHI

Key Points: - The judgment discusses the need to determine which version of Zahira is truthful due to alleged coercion and inducement, and directs an inquiry to ascertain truth (!) (!) (!) (!) (!) (!) (!) . - The Court accepts the Inquiry Officer’s report and contemplates consequences for Zahira, including contempt of court findings and potential consequences; it directs sentencing and attachment of assets, and instructs income tax authorities to examine sources of wealth (!) (!) (!) (!) (!) (!) (!) (!) (!) . - The judgment emphasizes the principle of fair trial and protection of witnesses, outlining the need to protect witnesses from threats, coercion, and money power, and discusses procedural fairness, cross-examination, and Section 311 guidance to ensure truth and prevent miscarriage of justice (!) (!) (!) (!) (!) (!) (!) (!) (!) . - It highlights the State’s role in protecting witnesses, and notes that public interest and confidence in justice require safeguarding witnesses and preventing tainted trials; it discusses potential legislative measures and the impact on trust in the justice system (!) (!) (!) (!) (!) . - The Court records findings that Zahira could not explain assets and that money influenced her change of stance, with detailed financial disclosures and charted discrepancies; it acknowledges that money and threats may have influenced testimony (!) (!) (!) (!) (!) (!) (!) . - The judgment ultimately disposes of the applications and directs specific actions including sentencing Zahira, attaching assets for three months, and directing income tax inquiries into sources of funds (!) (!) (!) (!) (!) (!) .

How to determine whether Zahira's statements were truthfully deposed in light of alleged coercion and inducement?

What is the appropriate remedy or punishment for contempt of court when a witness’s statements are disputed and the Court accepts an inquiry report?

What are the guidelines for protecting witnesses and ensuring fair trial in cases involving potential manipulation of witnesses by powerful interests?

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SUPREME COURT OF INDIA

Page 1 of 18

CASE NO.:

Appeal (crl.) 446-449 of 2004

PETITIONER:

Zahira Habibullah Sheikh & Anr

RESPONDENT:

State of Gujarat & Ors

DATE OF JUDGMENT: 08/03/2006

BENCH:

ARIJIT PASAYAT & H.K. SEMA

JUDGMENT:

J U D G M E N T

CRIMINAL MIS. PETITION NOS.6658-6661 OF 2004

IN

CRIMINAL APPEAL NOS. 446-449 OF 2004

ARIJIT PASAYAT, J.

The case at hand immediately brings into mind two

stanzas (14 and 18) of Eighth Chapter of Manu Samhita

dealing with role of witnesses. They read as follows:

"Stanza 14

"Jatro dharmo hyadharmena

Satyam Jatranrutenacha

Hanyate prekshyamananam

Hatastrata Sabhasadah"

(Where in the presence of Judges "dharma" is

overcome by "adharma" and "truth" by "unfounded

falsehood", at that place they (the Judges) are

destroyed by sin)

Stanza 18

"Padodharmasya Kartaram

Padah sakshinomruchhati

Padah sabhasadah sarban

pado rajanmruchhati"

(In the adharma flowing from wrong decision

in a Court of law, one fourth each is attributed to

the person committing the adharma, witness, the

judges and the ruler".)

This case has its matrix in an appeal filed by Zahira

Habibullah hereinafter referred to as ’Zahira and Another

namely, Teesta Setelwad’ and another appeal filed by the State

of Gujarat. In the appeals filed before this Court, the basic

focus was on the absence of an atmosphere conducive to fair

trial. Zahira who was projected as the star witness made a

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. The trial Court on the basis of the

statements made by the witnesses in Court directed acquittal

of the accused persons. Before the Gujarat High Court an

application under Section 391 of the Code of Criminal

Procedure, 1973 (in short the ’Code’) highlighting the

necessity for accepting additional evidence was filed. The

foundation was the statement made by Zahira. The High Court

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SUPREME COURT OF INDIA

Page 2 of 18

did not accept the prayer and that is why the appeals came to

be filed in this Court. By judgment dated 12th April, 2004 in

Zahira Habibullah Sheikh & Anr. v. State of Gujarat and Ors.

[(2004) 4 SCC 158], the following directions were given:

"75. Keeping in view the peculiar

circumstances of the case, and the ample

evidence on record, glaringly demonstrating

subversion of justice delivery system 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.

78. 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.

79. Sub-section (8) of Section 173 of the Code

permits further investigation, and even de hors

any direction from the Court as such, it is

open to the police to conduct proper

investigation, even after the Court took

cognizance of any offence on the strength of a

police report earlier submitted."

A review petition (Zahira’ Habibulla H. Sheikh and Anr.

V. State of Gujarat and Ors. (2004 (5) SCC 353) was filed by

the State of Gujarat which was disposed of by order dated 7th

May, 2004.

While the trial was on before a Court in Maharashtra

pursuant to this Court’s direction, it appears Zahira gave a

press statement