A Slim Silver Lining

The silver lining to the dark clouds of the initial judgments in the BestBakery and JessicaLal case have been the public outrage and the belated action promised bythe police, the government and, as usual, the last resort -- the Supreme Court.

The Supreme Court today not only severely reprimanded the Best Bakery casekey witness ZahiraSheikh, who had turned hostile during the trial, for her "flipflops" and sentenced her to one year simple imprisonment with a fine of Rs50,000 for contempt of court, but also made pointed observations touching uponthe menace of hostile witnesses, and sought legislative measures to arrest thetrend saying "the state has a definite role to play in protecting thewitnesses."

Accepting the report of the high-powered inquiry committee, which hadindicted Zahira Sheikh as a "self-condemned liar", a Bench comprisingJustice Arijit Pasayat and Justice H K Sema ruled that in case of default ofpayment of fine, Zahira will undergo further imprisonment of one year:

"Serious questions arise as to the role played by witnesses who changedtheir versions more frequently than chameleons. Zahira's role in the whole caseis an eye-opener for all concerned with the administration of criminal justice.As highlighted at the threshold the criminal justice system is likely to beaffected if persons like Zahira are to be left unpunished. Not only the role ofZahira but also of others whose conduct and approach before the Inquiry Officerhas been highlighted needs to be noted. The Inquiry Officer has found thatZahira could not explain her assets and the explanations given by her in respectof the sources of bank deposits etc. have been found to be unacceptable. We findno reason to take a different view."

The Bench left it open to income tax authorities to inquire into the stingoperation showing controversial BJP MLA Madhu Srivastava and CongressCouncillor Chandrakant Batthoo Srivastava talking about payment of money toZahira.

The court on January 10, 2005 had referred the matter for inquiry on beingfaced with the "flip flop" of Zahira much to the embarrassment of herone time protector and social activist Teesta Setalvad. The then RegistrarGeneral of the apex court B M Gupta has enquired about allegations and counterallegations between Zahira and Setalvad. The Committee, which had submitted itsreport on August 29, 2005 has given a clean chit to Setalvad on charges ofinducement levelled against her by Zahira. While accepting the Inquiry Officer'sreport, the Bench was clear:

"The Inquiry Officer has categorically recorded that Zahira had changedher stands at different stages and has departed from statements made before thisCourt. So far as the question whether she was threatened, coerced, lured,induced and/or in any manner pressurized to make statements in a particular wayby any person or persons, it has been found that Zahira has not been able toexplain the assets in her possession in spite of several opportunities havingbeen granted. ... The Inquiry Officer has referred to the explanations offeredby Zahira and her family members and found that she could not explain variousreceipts of money received by her and deposits made in their bank accounts. Theamount involved was nearly rupees five lakhs. The explanation offered by Zahiraand her family members was found unacceptable. "

The court also clarified:

"At the outset, it has to be noted that we have not gone into thequestion as to whether Teesta has done anything wrong in the process. It was forZahira to explain whether she was either telling the truth or making falsestatement. Merely stating that she was acting as a puppet in the hands of Teestais not sufficient."

But while Zahira Sheikh's name was resounding throughout the country, she wasnot to be found and the Gujarat police who till recently were busy looking afterher, claimed they had no clue. Her counsel Atul Mistry says, "Since the SupremeCourt verdict against her, she is not in touch with me. I do not knowabout the whereabouts of her. It is for the police to trace her. Zahira has notphoned me in the past few months." The Vadodara police, meanwhile,claim that they have formed a special team that may go toMumbai and Uttar Pradesh to trace Zahira and other family members.

All India Muslim Personal Law Board has welcomed the Supreme Court verdictagainst Zahira Sheikh, a key witness in the Gujarat Best Bakery case. AbdulRahim Quereshi, the Board's Assistant General Secretary, said that "theverdict has restored our faith in the judiciary. However, justice in this casethough not denied, has been delayed."

Meanwhile, Jan Sangharsh Manch, an NGO representing a section of theriot-affected families of Gujarat, has decided to appeal before the Nanavati-ShahCommission, "asking the panel to take strict action against Zahira Sheikhand prosecute her for giving false statements before the Commission".

Advocate Mukul Sinha, representing Jan Sangharsh Manch had cross-examined ZahiraSheikh before the Commission in May 4, 2005 after repeated summons fromthe Commission probing the fire on Sabarmati Express and the Gujarat riots of2002. "The Commission has special provisions to get a person prosecuted forlying before it," Sinha said. "We will file this application against Zahira in the coming days," Sinha added. The next hearing of theCommission is scheduled to be held on March 13.

Protect The Witnesses

While delivering the judgment, the Bench spoke at length on the role ofwitnesses in criminal trial as well as the role of court in dealing with thewitnesses:

"If a criminal Court is to be an effective instrument in dispensingjustice, the Presiding Judge must cease to be a spectator and a mere recordingmachine by becoming a participant in the trial evincing intelligence, activeinterest and elicit all relevant materials necessary for reaching the correctconclusion, to find out the truth, and administer justice with fairness andimpartiality both to the parties and to the community it serves."

Expressing concern over trend of people losing faith in criminal trial, theBench said,

"Courts have always been considered to have an over-riding duty tomaintain public confidence in the administration of justice - often referred toas the duty to vindicate and uphold the 'majesty of the law'. Due administrationof justice has always been viewed as a continuous process, not confined todetermination of the particular case, protecting its ability to function as aCourt of law in the future as in the case before it."

Without naming the trial court judge who had acquitted all the accused, theBench also referred to the role of the judges:

"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". "

And then came the role of the state, where the Bench clearly indicted thestate of Gujarat:

"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 had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation. [This seems to be a typo for 'reiteration' - Ed] We can only say this with regard to the criticism levelled against the State of Gujarat."

And the Bench went on to say:

"Legislative measures to emphasise prohibition against tampering withwitness, victim or informant have become the imminent and inevitable need of theday. Conducts which illegitimately affect the presentation of evidence inproceedings before the Courts have to be seriously and sternly dealt with. Thereshould not be any undue anxiety to only protect the interest of the accused.That would be unfair, as noted above, to the needs of the society. On thecontrary, efforts should be to ensure fair trial where the accused and theprosecution both get a fair deal. Public interest in the proper administrationof justice must be given as much importance if not more, as the interest of theIndividual accused. In this courts have a vital role to play."

"Time has come when serious and undiluted thoughts are to bebestowed for protecting witnesses so that ultimate truth is presented before theCourt and justice triumphs and that the trial is not reduced to a mockery.Doubts are raised about the roles of investigating agencies," and thenspoke on the effects of "defective investigation".

The SC judgment definitely sends the right signals for the JessicaLal case as well, but some questions need to be pondered over at thispoint. Zahira Sheikh has rightly been made an example of, but surely those who"influenced" Zahira Sheikh need more than an Income Taxinvestigation? It should also be borne in mind that her tragic circumstancesperhaps made her far more vulnerable to pressures of various sorts, or that lureof money may have been too overpowering, butthose in the Jessica Lal case were all well-connected, powerful and affluent people.While the whole judgment is not yet available at this moment of writing, it is in this this light that onereads the following observation by the Bench:

Increasingly, people are believing as observed by Solon quoted by Diogenes Laertius in "Lives of the Philosophers", laws are like spiders' webs: if some light or powerless thing falls into them, it is caught, but a bigger one can break through and get away". Jonathan Swift, in his "Essay on the Faculties of the Mind" said in similar lines: "Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through".

It is time to ensure that not only the "light or powerless" butalso the "bigger one"s, not just the "small flies" but alsothe "wasps and hornets", not just the "hostilewitnesses" but all those who sought to subvert justice are brought to book.

(Filed with agency inputs, updated on March 9, with the full text of thejudgment)