'The Fundamental Requirement'

FULL TEXT
Zahira Habibullah Sheikh & Anr V/s State of Gujarat & Ors

"(1) Zahira is sentenced toundergo simple imprisonment for one year and to pay cost of Rs.50,000/- and incase of default of payment within two months, she shall suffer furtherimprisonment of one year; (2) Her assets including bank deposits shall remainattached for a period of three months. The Income Tax Authorities are directedto initiate proceedings requiring her to explain the sources of acquisition ofvarious assets and the expenses met by her during the period from 1.1.2002 tilltoday."

CASE NO.: Appeal (crl.) 446-449 of2004

PETITIONER: Zahira HabibullahSheikh & 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 athand immediately brings into mind two stanzas (14 and 18) of Eighth Chapter ofManu 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 destroyedby sin)

Stanza 18

"Padodharmasya Kartaram
Padah sakshinomruchhati
Padah sabhasadah sarban
pado rajanmruchhati"

(In the adharma flowing from wrong decision in aCourt of law, one fourth each is attributed to the person committing the adharma,witness, the judges and the ruler".)

This case hasits matrix in an appeal filed by Zahira Habibullah hereinafter referred to as 'Zahiraand Another namely, Teesta Setelwad' and another appeal filed by the State ofGujarat. In the appeals filed before this Court, the basic focus was on theabsence of an atmosphere conducive to fair trial. Zahira who was projected asthe star witness made a grievance that she was intimidated, threatened andcoerced to depart from the truth and to make statement in Court which did notreflect the reality.

The trial Court on the basis of the statementsmade by the witnesses in Court directed acquittal of the accused persons. Beforethe Gujarat High Court an application under Section 391 of the Code of CriminalProcedure, 1973 (in short the 'Code') highlighting the necessity for acceptingadditional evidence was filed. The foundation was the statement made by Zahira.

The High Court did not accept the prayer and thatis 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. Sheikhand Anr. V. State of Gujarat and Ors. (2004 (5) SCC 353) was filed by the Stateof Gujarat which was disposed of by order dated 7th May, 2004.

While the trial was on before a Court inMaharashtra pursuant to this Court's direction, it appears Zahira gave a pressstatement in the presence of some government officials that what she had statedbefore the trial Court in Gujarat earlier was correct. A petition was filedbefore this Court alleging that Zahira's statement was nothing but contempt ofthis Court. At a press conference held on 3.11.2004 few days before thescheduled appearance of the witnesses in the trial, she had changed her version,disowned the statements made in this Court, and before various bodies likeNational Human Rights Commission. Considering the petition filed orders werepassed on 10.1.2005 and subsequently on 21.2.2005, giving directions which readas follows:

Order dated 10.1.2005

Having heard learned counsel for the parties, we are of the considered view that a detailed examination is necessary as to which version of Zahira Habibullah Sheikh is a truthful version. It is necessary to do so because various documents have been placed to show that she had made departure from her statements/stands at different points of time. Allegations are made by Mr. P.N.Lekhi, learned senior counsel appearing for Zahira Habibullah Sheikh that she was being threatened, coerced, induced and/or lured by Teesta Setalvad. On the contrary, learned counsel appearing for Teesta Setalvad submits that she was being threatened, coerced, lured or induced by others to make statements or adopt stands contrary to what she had stated/adopted earlier. In this delicate situation, the appropriate course would be to direct an inquiry to be conducted to arrive at the truth. We direct the Registrar General of this Court to conduct the inquiry and submit a report to this Court within three months. The Registrar General shall indicate in the report:

(a) if Zahira Habibullah Sheikh was in any manner threatened, coerced, induced and/or in any manner pressurised to depose/make statement(s) in any particular way, by any person or persons, and

(b) if the answer to (a) is in the affirmation, who the person/persons is (or) are.

For the purpose of inquiry, he may take assistance of a police officer of the rank of Inspector General of Police. Though a suggestion was given by Mr. Anil Diwan, learned senior counsel appearing on behalf of Ms.Teesta Setalvad that it should be an officer from the CBI, Mr.P.N.Lekhi, Mr.K.T.S.Tulsi and Mr.Mukul Rohtagi, learned senior counsel, opposed the same. In our view, an efficient, impartial and fair officer should be selected. Therefore, we leave the choice to the Registrar General to nominate an officer of the Delhi Police, as noted above, of the rank of Inspector General of Police. The inquiry shall be conducted on the basis of affidavits to be placed before the Registrar General and if he deems fit, he may examine any witness or witnesses to substantiate the contents of the affidavits. We do not think it necessary to lay down any broad guidelines as to the modalities which the Registrar General will adopt. He is free to adopt such modalities as he thinks necessary to arrive at the truth, and to submit the report for further consideration.

The affidavits and documents if any in support of the respective stands shall be filed before the Registrar General within a period of four weeks from today.

We make it clear that the pendency of the inquiry will not be a ground for seeking adjournment in the pending trial.

We have perused the letter of the trial court seeking extension of time. The time is extended till 31st of May, 2005 for completion of trial.

The matter shall be placed for consideration of the Report to be submitted, after three months.

Order dated 21.2.2005 Heard.

The parties are granted four weeks' time to file the affidavits in terms of the earlier order dated 10.01.2005. We make it clear that we have not taken note of paragraph-8 of the application filed in Crl.M.P. Nos.1908-1911 of 2005.

Criminal Miscellaneous Petition Nos.1908- 1911 of 2005 are accordingly disposed of.

Crl.M.P. Nos.6658-6661 of 2004

By order dated 10.01.2005, the question as to whether Ms. Zahira Habibullah Sheikh was in any manner induced to depose in a particular way, has been directed to be enquired into, we think it appropriate to direct her to file an affidavit indicating details of her bank accounts, advances, other deposits, amounts invested in movable or immovable properties and advances or security deposits, if any for the aforesaid purpose, along with the affidavit to be filed before the Registrar General of this Court. She will also indicate the sources of the aforesaid deposits, advances and investments, as the case may be. She shall also indicate the details of such deposits, advances and investments, if any, in respect of her family members and the source thereof. The Registrar General and police officer nominated to be associated with enquiry are free to record statements of such family members and to make such further enquiries in the manner as deemed necessary and to ask the family members to file affidavits containing the details as noted above. They shall indicate in the affidavits and the statements the sources of such deposits, advances and investments. If the Registrar General and the police officer feel that any further enquiry as regards the sources is necessary, they shall be free to do it.

Since, we have extended the time for filing of affidavits by the parties, the enquiry report shall be submitted by the Registrar General within three months from today.

Put up thereafter."

Consideringthe materials placed before the Inquiry Officer, he has submitted his report.Parties were permitted to file statements indicating their views so far as thereport is concerned. The findings recorded by the Inquiry Officer with referenceto various documents are essentially as follows:

(1) The FIR dated 2.3.2002
(2) Memorandum dated 21.3.2002 before the Chairman, NHRC
(3) Statements made on 11.5.2002 and 20.7.2002 before the concerned CitizenTribunal and Nanavati Commission respectively
(4) Statements dated 7.7.2003 of the Press Conference in Mumbai
(5) Statement dated 11.7.2003 before NHRC
(6) Plain copy of the affidavit dated 8.9.2003 attested by Notary submittedbefore this Court as additional document in SLP(Crl.) 3770/2003
(7) Statement recorded on 16.12.2003 at the Santa Cruz Police Station, Mumbai
(8) Affidavit dated 3.11.2004 submitted before Collector, Vadodara
(9) Affidavit dated 31.12.2004 submitted before this Court
(10) Affidavits dated 20.3.2005, 12.4.2005 and 24.4.2005 before the InquiryOfficer.

The Inquiry Officer has categorically recordedthat Zahira had changed her stands at different stages and has departed fromstatements made before this Court. So far as the question whether she wasthreatened, coerced, lured, induced and/or in any manner pressurized to makestatements in a particular way by any person or persons, it has been found thatZahira has not been able to explain the assets in her possession in spite ofseveral opportunities having been granted. The Inquiry Officer had referred totranscript of conversations purported to have been made between a representativeof Tehlaka and Shri Tushar Vyas, Shri Nisar Bapu and Shri ChandrakantRamcharan Srivastava @ Bhattoo Srivastava, Shri Madhu Srivastava, and ShriShailesh Patel. These persons were also given opportunity to explain theirstands as the transcript of the Video Compact Disc produced by Tehlaka.comclearly indicated that money was paid to Zahira to change her stand.

The Inquiry Officer has referred to theexplanations offered by Zahira and her family members and found that she couldnot explain various receipts of money received by her and deposits made in theirbank accounts. The amount involved was nearly rupees five lakhs. The explanationoffered by Zahira and her family members was found unacceptable. The detailsindicated in the affidavit dated 24.4.2005 filed by Zahira explained thefollowing details:

"1. 'Rs.65,000/- Sale consideration of onehouse sold in the month of November, 2001
2. Rs.40,000/(Approx.)- Sale consideration of two-three wheelers sold to Scrapdealer (Kabadi)
3. Rs.30,000/- Received from Insurance Company by mother on account of damagesto motor cycle.
4. Rs.32,000/- Sale consideration of scrap of machinery of Bakery
5. Rs.1,50,000/-(Approx.) Sale consideration of scrap of Bakery
6. Rs.50,000/- Compensation for damages of house received from Governmentthrough cheque in favour of her mother
7. Rs.50,000/- Received by mother as & Rs.40,000/- compensation of hersister's death from the Government through cheque
8. Rs.493/-P.M. Deposited on monthly basis directly in Savings Bank AccountNo.16669 with Syndicate Bank stands in the name of mother, as interest on Bondamount of Rs.50,000/- received as compensation of her sister's death fromGovernment.
9. Rs.55,000/- Investment in a house in Ekta Nagar in the name of Ms. ZahiraSheikh
10. Rs.20,000 & Rs.25,000/- Investment in two small plots of 15x30ft. eachby her brother Nasibullah
11. Rs.45,000/- Deposited by her in the Bank Account No.11348 with Bank ofBaroda, Nawapura Branch at Vadodara
12. Rs.52,045/- Deposits in a joint account No.16754 with her brother,Nasibullah with Syndicate Bank, Goddev Branch, Bhayander
13. Rs.1,37,384/- Deposits in her brother's account No.16667 with SyndicateBank, Goddev Branch, Bhayander
14. Rs.1,42,256/- Deposits in her mother's account No.16669 with Syndicate Bank,Goddev Branch, Bhayander.

The Inquiry Officer repeatedly asked Zahira andher brother H. Nafitullah about the names and addresses of purchasers of scrapand further details which were not supplied.

Two charts have been prepared by the InquiryOfficer showing the discrepancies. They read as follows:

CHART NO. 1 Receipts

.

Note: Rs.1,82,000/- have been claimed to betreated as receipts against the sale price of the scrap which has not beenacceded to on the ground noted on page No. 106-107 despite if this amount isdeemed to be accepted, then the total of the receipts will be Rs. 3,84,096 (Rs.2,02,096 + Rs. 1,82,000).

CHART NO. 2 Investments:

Difference: Investments - Receipts Rs.5,88,412 - Rs. 2,02,096 = Rs. 3,86,316/- If Rs. 1,82,000/- is also included asreceipts then the difference is = Rs. 2,04,316/-.

The Inquiry Officer recorded the followingfindings:

"In view of the all, as discussed above, the fact which can be accepted as highly probable, that money has exchanged hands and that was the main inducement responsible which made Ms. Zahira to state in a particular way in Trial Court, Vadodara although threat could have also played a role in reaching at an agreement. However, the element of threat cannot be altogether ruled out. One cannot loose sight of the fact that first contact over cell phone was made by Sh. Madhu Srivastava and Sh. Bharat Thakkar and not by Sh. Nafitullah. The evidence of Sh. Abhishek Kapoor about presence of Sh. Madhu Srivastava, MLA, in the Court at the time of testimony of Ms. Zahira can also be treated as an indication of this factor."

In addition to the aforesaid conclusions theInquiry Officer has also recorded that after a particular point of timecontemporaneous to when she started changing her stand, a society called JanAdhikar Samiti came to the picture. It appears from the statements offunctionaries of Jan Adhikar Samiti that substantial amount has been spent formeeting the expenses of Zahira and her family members. But the Inquiry Officerhas found that even though materials do exist to show that money played a vitalrole in the change of stand yet it could not be directly linked to MadhuSrivastava and Bhattoo Srivastava.

Zahira has objected to acceptance of the InquiryOfficer's report. The grounds on which the objections have been raisedessentially as follows:

(1) The Inquiry Officer has tailored facts to fitinto his pre-conceived conclusions. There has been deliberate omissions anddistortion of facts.
(2) No cross examination of the witnesses whom the Inquiry Officer has examinedwas permitted.
(3) There was no transparent procedure adopted and the agreed procedure wasnever followed.
(4) There was lack of fair objective and reasonable approach. The pre-requisitesof an objective enquiry were missing. There was no intelligent appreciation offacts.
(5) The Inquiry Officer appeared to be guided by Teesta Setalwad. The conclusionthat Zahira had approached this Court for a fresh trial is wrong.
(6) The request for examining the Chairman, NHRC was not accepted withoutindicating any reason.
(7) Zahira was not only the person who had made departure from her standpurportedly recorded during investigation, there were others but no effort wasmade to take any action against them. Though many persons had died or injured,Citizen for Justice and Peace and its functionaries never bothered to take uptheir cases. It is surprising why they only chose Zahira.
(8) The petition filed before this Court was not in fact signed by Zahira butwas signed by Teesta and the mere fact that she had filed a Vakalatnama wouldnot make her responsible for the statements made in the affidavit.
(9) Upto the point of time of the Press Conference Zahira was under the controlof Teesta and she was a mere puppet in her hands and whatever statement waspurportedly made by Zahira was in fact made by Teesta. Teesta's role in thewhole episode is very suspicious. She had spent lot of money taking advantage ofthe helplessness of Zahira and has used her for her machination. Zahira wastutored to make statements on different occasions. Teesta has given differentversions as to when she has come in contact with Zahira and decided to take upher issues.

On the other hand, the State of Gujarat hasadopted a peculiar stand stating that in view of conclusions of the InquiryOfficer it is not in a position to simpliciter accept or deny the report. So faras the criticism levelled by the Inquiry Officer against the conduct of some ofthe officers it was pointed out that the State has shown its anxiety to see thatjustice is done and nothing is wrong in deputing officers and merely becauseShri S.N. Sinha who had been transferred appeared in the proceedings before theInquiry Officer, that cannot show that the State of Gujarat was adopting anyparticular stand.

On behalf of Mrs. Teesta it has been submittedthat report deserves to be accepted. Further enquiry as to the role of MadhuSrivastava and the sources of money which has come to the possession of Zahiramay be further proved. The Inquiry Officer has clearly indicated the rolesplayed by Madhu Srivastava and his cousin Chandrakant in intimidating/coercingwitnesses like Zahira and family members. Assistance was given by Sudhir Sinha,Commissioner of Police, Surat to Zahira to hold the press conference on3.11.2004 just a day before her testimony was to be recorded in Mumbai. Similarassistance was given by Shri Bhagyesh Jha, Collector, Vadodara to Zahira. Thedirections by the Home Secretary Shri S.C. Murmu, to Shri Sudhir Sinha,Commissioner of Police, to attend the proceedings before the Inquiry Committeeclearly show the partisan approach. The role of the State of Gujarat in lodgingZahira and her family members at Silver Oak Club, Gandhi Nagar for a period of10 days raises big question mark as to who met the expenses. These clearly showthat sinister roles were played by State of Gujarat's functionaries. It has beensubmitted that Teesta is being targeted for exposing the evil deeds of theaforesaid persons.

At the outset, it has to be noted that we havenot gone into the question as to whether Teesta has done anything wrong in theprocess. It was for Zahira to explain whether she was either telling the truthor making false statement. Merely stating that she was acting as a puppet in thehands of Teesta is not sufficient. Much has been made by learned counsel forZahira about some observations made by Inquiry Officer in his report. A barereading of the observations makes it clear that what is being submitted bylearned counsel for Zahira is by reading observations out of context.

The procedure adopted during enquiry has beencharacterized to be unfair and not fair and transparent procedure. On a bareperusal of the proceedings of the enquiry, it is clear that the procedureadopted was quite transparent. The proceedings were conducted in the presence oflearned counsel for the parties and/or the parties themselves. After thequestions were asked by the Inquiry Officer, learned counsel and the partieswere asked if any further questions were to be asked and as the records revealedwhenever any question was suggested that was asked. Grievance is made that scopefor "cross examination" was not given. That according to us is reallyof no consequence. What questions in "cross examination" by learnedcounsel could have been put, were asked by the Inquiry Officer whenever anysuggestion was made in that regard. If a party did not suggest any question tobe put to a witness by the Inquiry Officer, it is not open for him or her to saythat opportunity for "cross examination" was not given. A furthergrievance is made that a request to call the Chairman, NHRC was turned downwithout reasons. This according to us is a plea which needs to be noticed andrejected. The statement of Zahira was recorded by NHRC in the presence of theChairman (a retired Chief Justice of this Court) and several members whichincluded a retired Judge of this Court). The allegation that it was not properlyrecorded or that somebody else's statement was recorded and Zahira was asked toput the signatures, as she has tried to make out is clearly untenable. If we maysay so, such a plea should not have been raised as it reflects on thecredibility of functionaries of a body like NHRC.

The other pleas which have been enumerated abovedo not in any way affect credibility or acceptability of the report. Theallegation that the Inquiry Officer acted with some pre- conceived ideas and/orreport was based on presumptions is not correct. The conclusions drawn by theInquiry Officer have their foundation on materials which have been elaboratelydiscussed by the Inquiry Officer. Much has been made of the fact that originalaffidavit was not filed. The reason for this has been explained, the InquiryOfficer has dealt with the question in detail and undisputedly originalaffidavit has been brought on record. The stand that mere filing of avakalatnama without an affidavit by the concerned person cannot constitute astatement by the person who has filed the vakalatnama is clearly unacceptable.The appeal undisputedly has been filed by Zahira and it has been candidlyadmitted that she has filed the vakalatnama for filing the appeal. She cannotnow turn around and say that she was not a party in the appeal.

Above being the position, there is no reason todiscard the report given by the Inquiry Officer which is accordingly accepted.Further, what remains to be done is what is the consequence of Zahira havingmade such conflicting statements and the effect for changing her stand from thestatements made at different stages, particularly in this Court.

Whatever be the fate of the trial before theCourt at Mumbai where the trial is stated to be going on and the effect of herstatement made during trial shall be considered in the trial itself. Acceptanceof the report in the present proceedings cannot have any determinative role inthe trial. Serious questions arise as to the role played by witnesses whochanged their versions more frequently than chameleons. Zahira's role in thewhole case is an eye-opener for all concerned with the administration ofcriminal justice. As highlighted at the threshold the criminal justice system islikely to be affected if persons like Zahira are to be left unpunished. Not onlythe role of Zahira but also of others whose conduct and approach before theInquiry Officer has been highlighted needs to be noted. The Inquiry Officer hasfound that Zahira could not explain her assets and the explanations given by herin respect of the sources of bank deposits etc. have been found to beunacceptable. We find no reason to take a different view.

During the course of hearing, we had askedlearned counsel appearing for Zahira as to whether they would like to be heardon the question of the consequential order, if any, if the report is acceptedand Zahira is found to have committed contempt or to have deflected the courseof justice by unacceptable methods. Learned counsel for Zahira stated that theywould not like to make statements in that regard and would only stress on thereport being not accepted.

Zahira has committed contempt of this Court.

Parliament by virtue of Entry 77 List I iscompetent to enact a law relating to the powers of the Supreme Court with regardto contempt of itself and such a law may prescribe the nature of punishmentwhich may be imposed on a contemner by virtue of the provisions of Article 129read with Article 142(2) of the Constitution of India, 1950. Since, no such lawhas been enacted by Parliament, the nature of punishment prescribed under theContempt of Courts Act, 1971 may act as a guide for the Supreme Court but theextent of punishment as prescribed under that Act can apply only to the HighCourts, because the 1971 Act ipso facto does not deal with the contemptjurisdiction of the Supreme Court, except that Section 15 of the Act prescribesprocedural mode for taking cognizance of criminal contempt by the Supreme Courtalso. Section 15, however, is not a substantive provision conferring contemptjurisdiction. The judgment in Sukhdev Singh Sodhi v. Chief Justice and Judges ofthe PEPSU High Court (AIR 1954 SC 186) as regards the extent of "maximumpunishment" which can be imposed upon a contemner must, therefore, beconstrued as dealing with the powers of the High Courts only and not of thisCourt 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 sincethat issue, strictly speaking, did not arise for decision in that case. Thequestion regarding the restriction or limitation on the extent of punishment,which this Court may award while exercising its contempt jurisdiction, it wasobserved, may be decided in a proper case, when so raised. We may note that athree Judge Bench in Suo Motu Contempt Petition 301 of 2003 by judgment dated19.12.2003 in re: Sri Pravakar Behera (2003 (10) SCALE 1726) imposed cost ofRs.50,000/-.

The complex pattern of life which is never staticrequires a fresher outlook and a timely and vigorous moulding of old precepts tosome new conditions, ideas and ideals. If the Court acts contrary to the role itis expected to play, it will be destruction of the fundamental edifice on whichjustice delivery system stands. People for whose benefit the Courts exists shallstart doubting the efficacy of the system. Justice must be rooted in confidenceand confidence is destroyed when right minded people go away thinking that"the Judge was biased". (Per Lord Denning MR in MetropolitanProperties Ltd. v. Lannon (1968) 3 All ER 304 (CA). The perception may be wrongabout the judge's bias, but the Judge concerned must be careful to see that nosuch impression gains ground. Judges like Ceaser's wife should be abovesuspicion (Per Bowen L.J. in Lesson v. General Council of Medical Education(1890) 43 Ch.D. 366).

By not acting in the expected manner a judgeexposes himself to unnecessary criticism. At the same time the Judge is not to[be] innovative at pleasure. He is not a Knight-errant roaming at will inpursuit 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 justand fair has to be seen devoid of flaw. It has to keep promise to justice and itcannot stay petrified and sit non-challantly. The law should not be seen to sitby limply, while those who defy it go free and those who seek its protectionloose hope (See Jennison v. Backer (1972 (1) All ER 1006). Increasingly, peopleare believing as observed by SALMON [a typo for Solon] quoted by Diogenes Laertius in "Livesof the Philosophers", laws are like spiders' webs: if some light orpowerless thing falls into them, it is caught, but a bigger one can breakthrough and get away". Jonathan Swift, in his "Essay on the Facultiesof the Mind" said in similar lines: "Laws are like cobwebs, which maycatch small flies, but let wasps and hornets break through".

As has beennoticed earlier in the earlier case (reported in 2004 (4) SCC 158), the role tobe played by Courts, witnesses, investigating officers, public prosecutors hasto be focused, more particularly when eyebrows are raised about their roles.

In this context, reference may be made to Section311 of the Code which reads as follows:

"311. Power to summon material witness, or examine person present.

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re- examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

The section is manifestly in two parts. Whereasthe word used in the first part is "may", the second part uses"shall". In consequences, the first part gives purely discretionaryauthority to a Criminal Court and enables it at any stage of an enquiry, trialor proceeding under the Code (a) to summon any one as a witness, or (b) toexamine any person present in Court, or (c) to recall and re-examine any personwhose evidence has already been recorded. On the other hand, the second part ismandatory and compels the Court to take any of the aforementioned steps if thenew evidence appears to it essential to the just decision of the case. This is asupplementary provision enabling, and in certain circumstances imposing on theCourt the duty of examining a material witness who would not be otherwisebrought before it. It is couched in the widest possible terms and calls for nolimitation, either with regard to the stage at which the powers of the Courtshould be exercised, or with regard to the manner in which it should beexercised. It is not only the prerogative but also the plain duty of a Court toexamine such of those witnesses as it considers absolutely necessary for doingjustice between the State and the subject. There is a duty cast upon the Courtto arrive at the truth by all lawful means and one of such means is theexamination of witnesses of its own accord when for certain obvious reasonseither party is not prepared to call witnesses who are known to be in a positionto speak important relevant facts.

The object underlying Section 311 of the Code isthat there may not be failure of justice on account of mistake of either partyin bringing the valuable evidence on record or leaving ambiguity in thestatements of the witnesses examined from either side. The determinative factoris whether it is essential to the just decision of the case. The section is notlimited only for the benefit of the accused, and it will not be an improperexercise of the powers of the Court to summon a witness under the Section merelybecause the evidence supports the case for the prosecution and not that of theaccused. The section is a general section which applies to all proceedings,enquiries and trials under the Code and empowers Magistrate to issue summons toany witness at any stage of such proceedings, trial or enquiry. In Section 311the significant expression that occurs is "at any stage of inquiry or trialor other proceeding under this Code". It is, however, to be borne in mindthat whereas the section confers a very wide power on the Court on summoningwitnesses, the discretion conferred is to be exercised judiciously, as the widerthe power the greater is the necessity for application of judicial mind.

As indicated above, the Section is whollydiscretionary. The second part of it imposes upon the Magistrate an obligation:it is, that the Court shall summon and examine all persons whose evidenceappears to be essential to the just decision of the case. It is a cardinal rulein the law of evidence that the best available evidence should be brought beforethe 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 theprovisions of the Code to compel either the prosecution or the defence toexamine any particular witness or witnesses on their side. This must be left tothe parties. But in weighing the evidence, the Court can take note of the factthat the best available evidence has not been given, and can draw an adverseinference. The Court will often have to depend on intercepted allegations madeby the parties, or on inconclusive inference from facts elicited in theevidence. In such cases, the Court has to act under the second part of thesection. Sometimes the examination of witnesses as directed by the Court mayresult in what is thought to be "filling of loopholes". That is purelya subsidiary factor and cannot be taken into account. Whether the new evidenceis essential or not must of course depend on the facts of each case, and has tobe determined by the Presiding Judge.

The object of the Section 311 is to bring onrecord evidence not only from the point of view of the accused and theprosecution but also from the point of view of the orderly society. If a witnesscalled by Court gives evidence against the complainant he should be allowed anopportunity to cross- examine. The right to cross-examine a witness who iscalled by a Court arises not under the provision of Section 311, but under theEvidence Act which gives a party the right to cross- examine a witness who isnot his own witness. Since a witness summoned by the Court could not be termed awitness of any particular party, the Court should give the right of cross-examination to the complainant. These aspects were highlighted in Jagat Rai v.State of Maharashtra, (AIR 1968 SC 178).

Right from theinception of the judicial system it has been accepted that discovery,vindication and establishment of truth are the main purposes underlyingexistence of Courts of justice. The operative principles for a fair trialpermeate the common law in both civil and criminal contexts. Application ofthese principles involves a delicate judicial balancing of competing interestsin a criminal trial, the interests of the accused and the public and to a greatextent that of the victim have to be weighed not losing sight of the publicinterest involved in the prosecution of persons who commit offences. In 1846, ina judgment which Lord Chancellor Selborne would later describe as "one ofthe ablest judgments of one of the ablest judges who ever sat in thiscourt," Vice-Chancellor Knight Bruce said :

"The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however, valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much."

The Vice-Chancellor went on to refer to paying"too great a price .... for truth". This is a formulation which hassubsequently been frequently invoked, including by Sir Gerard Brennan. Onanother occasion, in a joint judgment of the High Court, a more expansiveformulation of the proposition was advanced in the following terms: "Theevidence has been obtained at a price which is unacceptable having regard to theprevailing community standards." Restraints on the processes fordetermining the truth are multi-faceted. They have emerged in numerous differentways, at different times and affect different areas of the conduct of legalproceedings. By the traditional common law method of induction there has emergedin our jurisprudence the principle of a fair trial. Oliver Wendell Holmesdescribed the process :

"It is the merit of the common law that it decides the case first and determines the principles afterwards ..... It is only after a series of determination on the same subject- matter, that it becomes necessary to "reconcile the cases", as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it any every step."

The principle of fair trial now informs andenergizes many areas of the law. It is reflected in numerous rules andpractices. It is a constant, ongoing development process continually adapted tonew and changing circumstances, and exigencies of the situation - peculiar attimes and related to the nature of crime, persons involved - directly oroperating behind, social impart and societal needs and even so many powerfulbalancing factors which may come in the way of administration of criminaljustice system. As will presently appear, the principle of a fair trialmanifests itself in virtually every aspect of our practice and procedure,including the law of evidence. There is, however, an overriding and, perhaps,unifying principle. As Deane, J. put it:

"It is desirable that the requirement of fairness be separately identified since it transcends the context of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law."

This Court hasoften emphasised that in a criminal case the fate of the proceedings cannotalways be left entirely in the hands of the parties, crime being public wrong inbreach and violation of public rights and duties, which affect the wholecommunity as a community and are harmful to the society in general. The conceptof fair trial entails familiar triangulation of interests of the accused, thevictim and the society and it is the community that acts through the State andprosecuting agencies. Interests of society is not to be treated completely withdisdain and as persona non grata.

Courts have always been considered to have anover-riding duty to maintain public confidence in the administration of justice- often referred to as the duty to vindicate and uphold the 'majesty of thelaw'. Due administration of justice has always been viewed as a continuousprocess, not confined to determination of the particular case, protecting itsability to function as a Court of law in the future as in the case before it.

If a criminal Court is to be an effectiveinstrument in dispensing justice, the Presiding Judge must cease to be aspectator and a mere recording machine by becoming a participant in the trialevincing intelligence, active interest and elicit all relevant materialsnecessary for reaching the correct conclusion, to find out the truth, andadminister justice with fairness and impartiality both to the parties and to thecommunity it serves.

Courts administering criminal justice cannot turna blind eye to vexatious or oppressive conduct that has occurred in relation toproceedings, even if a fair trial is still possible, except at the risk ofundermining the fair name and standing of the judges as impartial andindependent adjudicators. The principles of rule of law and due process areclosely linked with human rights protection. Such rights can be protectedeffectively when a citizen has recourse to the Courts of law.

It has to be unmistakably understood that a trialwhich is primarily aimed at ascertaining the truth has to be fair to allconcerned. There can be no analytical, all comprehensive or exhaustivedefinition of the concept of a fair trial, and it may have to be determined inseemingly infinite variety of actual situations with the ultimate object in mindviz. whether something that was done or said either before or at the trialdeprived the quality of fairness to a degree where a miscarriage of justice hasresulted.

It will not be correct to say that it is only theaccused who must be fairly dealt with. That would be turning a Nelson's eye tothe needs of the society at large and the victims or their family members andrelatives. Each one has an inbuilt right to be dealt with fairly in a criminaltrial. Denial of a fair trial is as much injustice to the accused as is to thevictim and the society. Fair trial obviously would mean a trial before animpartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trialmeans a trial in which bias or prejudice for or against the accused, thewitnesses, or the cause which is being tried is eliminated. If the witnesses getthreatened or are forced to give false evidence that also would not result in afair trial.

The failure to hear material witnesses iscertainly denial of fair trial. A criminal trial is a judicial examination ofthe issues in the case and its purpose is to arrive at a judgment on an issue asto a fact or relevant facts which may lead to the discovery of the fact issueand obtain proof of such facts at which the prosecution and the accused havearrived by their pleadings; the controlling question being the guilt orinnocence of the accused. Since the object is to mete out justice and to convictthe guilty and protect the innocent, the trial should be a search for the truthand not a bout over technicalities, and must be conducted under such rules aswill protect the innocent, and punish the guilty. The proof of charge which hasto be beyond reasonable doubt must depend upon judicial evaluation of thetotality of the evidence, oral and circumstantial, and not by an isolatedscrutiny.

Failure to accord fair hearing either to theaccused or the prosecution violates even minimum standards of due process oflaw. It is inherent in the concept of due process of law, that condemnationshould be rendered only after the trial in which the hearing is a real one, notsham or a mere farce and pretence. Since the fair hearing requires anopportunity to preserve the process, it may be vitiated and violated by anoverhasty stage-managed, tailored and partisan trial. The fair trial for acriminal offence consists not only in technical observance of the frame, andforms of law, but also in recognition and just application of its principles insubstance, to find out the truth and prevent miscarriage of justice.

"Witnesses" as Bentham said: are theeyes and ears of justice. Hence, the importance and primary of the quality oftrial process. If the witness himself is incapacitated from acting as eyes andears of justice, the trial gets putrefied and paralysed, and it no longer canconstitute a fair trial. The incapacitation may be due to several factors, likethe witness being not in a position for reasons beyond control to speak thetruth in the Court or due to negligence or ignorance or some corrupt collusion.

Time hasbecome ripe to act on account of numerous experiences faced by Courts on accountof frequent turning of witnesses as hostile, either due to threats, coercion,lures and monetary considerations at the instance of those in power, theirhenchmen and hirelings, political clouts and patronage and innumerable othercorrupt practices ingeniously adopted to smother and stifle truth and realitiescoming out to surface rendering truth and justice, to become ultimatecasualties. Broader public and societal interests require that the victims ofthe crime who are not ordinarily parties to prosecution and the interests ofState represented by their prosecuting agencies do not suffer even in slowprocess but irreversibly and irretrievably, which if allowed would undermine anddestroy public confidence in the administration of justice, which may ultimatelypave way for anarchy, oppression and injustice resulting in complete breakdownand collapse of the edifice of rule of law, enshrined and jealously guarded andprotected by the Constitution. There comes the need for protecting the witness.

Time has come when serious and undiluted thoughtsare to be bestowed for protecting witnesses so that ultimate truth is presentedbefore the Court and justice triumphs and that the trial is not reduced to amockery. Doubts are raised about the roles of investigating agencies.Consequences of defective investigation have been elaborated in Dhanraj Singh @Shera and Ors. v. State of Punjab (JT 2004(3) SC 380). It was observed asfollows:

"5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995 (5) SCC 518).

6. In Paras Yadav and Ors. v. State of Bihar (1999 (2) SCC 126) it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.

7. As was observed in Ram Bihari Yadav v. State of Bihar and Ors. (1998 (4) SCC 517) if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view was again re-iterated in Amar Singh v. Balwinder Singh and Ors. (2003 (2) SCC 518)".

The State has a definite role to play inprotecting the witnesses, to start with at least in sensitive cases involvingthose in power, who has political patronage and could wield muscle and moneypower, to avert trial getting tainted and derailed and truth becoming acasualty. As a protector of its citizens it has to ensure that during a trial inCourt the witness could safely depose truth without any fear of being haunted bythose against whom he had deposed. Every State has a constitutional obligationand duty to protect the life and liberty of its citizens. That is thefundamental requirement for observance of the rule of law. There cannot be anydeviation from this requirement because of any extraneous factors like, caste,creed, religion, political belief or ideology. Every State is supposed to knowthese fundamental requirements and this needs no retaliation. [This seems tobe a typo for 'reiteration' - Ed] We can only say this with regard to thecriticism levelled against the State of Gujarat.

Some legislative enactments like the Terroristand Disruptive Activities (Prevention) Act, 1987 (in short the "TADAAct") have taken note of the reluctance shown by witnesses to deposeagainst people with muscle power, money power or political power which hasbecome the order of the day. If ultimately truth is to be arrived at, the eyesand ears of justice have to be protected so that the interests of justice do notget incapacitated in the sense of making the proceedings before Courts mere mocktrials as are usually seen in movies.

Legislative measures to emphasise prohibitionagainst tampering with witness, victim or informant have become the imminent andinevitable need of the day. Conducts which illegitimately affect thepresentation of evidence in proceedings before the Courts have to be seriouslyand sternly dealt with. There should not be any undue anxiety to only protectthe interest of the accused. That would be unfair, as noted above, to the needsof the society. On the contrary, efforts should be to ensure fair trial wherethe accused and the prosecution both get a fair deal. Public interest in theproper administration of justice must be given as much importance if not more,as the interest of the Individual accused. In this courts have a vital role toplay. In the aforesaid background, we direct as follows:

(1) Zahira is sentenced to undergo simpleimprisonment for one year and to pay cost of Rs.50,000/- and in case of defaultof payment within two months, she shall suffer further imprisonment of one year;(2) Her assets including bank deposits shall remain attached for a period ofthree months. The Income Tax Authorities are directed to initiate proceedingsrequiring her to explain the sources of acquisition of various assets and theexpenses met by her during the period from 1.1.2002 till today. It is made clearthat any observation made about her having not satisfactorily explained theaforesaid aspects would not be treated as conclusive. The proceedings shall beconducted in accordance with law.

The Chief Commissioner, Vadodara is directed totake immediate steps for initiation of appropriate proceedings. It shall be opento Income tax authorities to direct continuance of the attachment in accordancewith law. If so advised, the Income Tax Authorities shall also require MadhuSrivastava and Bhattoo Srivastava to explain as to why the claim as made in theVCD of paying money shall not be further enquired into and if any tangiblematerial comes to surface, appropriate action under the Income Tax Law shall betaken notwithstanding the findings recorded by the Inquiry Officer that there isno acceptable material to show that they had paid money, as claimed, to Zahira.

We make it clear that we are not directinginitiation of proceedings as such, but leaving the matter to the Income TaxAuthorities to take a decision. The Trial Court shall decide the matter beforeit without being influenced by any finding/observation made by the InquiryOfficer or by the fact that we have accepted the report and directedconsequential action.

The applications are accordingly disposed of.