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TMI Blog2006 (3) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces 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." Considering the materials placed before the Inquiry Officer, he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- Sale consideration of one house sold in the month of November, 2001 2. Rs. 40,000/(Approx.)- Sale consideration of two-three wheelers sold to Scrap dealer (Kabadi) 3. Rs. 30,000/- Received from Insurance Company by mother on account of damages to 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 Government through cheque in favour of her mother 7. Rs. 50,000/- Received by mother as & Rs. 40,000/- compensation of her sister's death from the Government through cheque 8. Rs. 493/- P.M. Deposited on monthly basis directly in Savings Bank Account No.16669 with Syndicate Bank stands in the name of mother, as interest on Bond amount of Rs. 50,000/- received as compensation of her sister's death from Government. 9. Rs. 55,000/- Investment in a house in Ekta Nagar in the name of Ms. Zahira Sheikh 10. Rs. 20,000 & Rs. 25,000/- Investment in two small plots of 15x30ft. each by her brother Nasibullah 11. Rs. 45,000/- Deposited by her in the Bank Account No.11348 with Bank of Baroda, Nawapura Branch at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; 30,727/- Mother's account (A/c. No. 8881) Total Rs. 5,88,412/- - Difference: Investments Receipts Rs. 5,88,412 - Rs. 2,02,096 = Rs. 3,86,316/- - If Rs. 1,82,000/- is also included as receipts then the difference is = Rs. 2,04,316/-. The Inquiry Officer recorded the following findings: "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 the Inquiry Officer has also recorded that after a particular point of time contemporaneous t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asions. Teesta has given different versions as to when she has come in contact with Zahira and decided to take up her issues. On the other hand, the State of Gujarat has adopted a peculiar stand stating that in view of conclusions of the Inquiry Officer it is not in a position to simpliciter accept or deny the report. So far as the criticism levelled by the Inquiry Officer against the conduct of some of the officers it was pointed out that the State has shown its anxiety to see that justice is done and nothing is wrong in deputing officers and merely because Shri S.N. Sinha who had been transferred appeared in the proceedings before the Inquiry Officer, that cannot show that the State of Gujarat was adopting any particular stand. On behalf of Mrs. Teesta it has been submitted that report deserves to be accepted. Further enquiry as to the role of Madhu Srivastava and the sources of money which has come to the possession of Zahira may be further proved. The Inquiry Officer has clearly indicated the roles played by Madhu Srivastava and his cousin Chandrakant in intimidating/coercing witnesses like Zahira and family members. Assistance was given by Sudhir Sinha, Commissioner of Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance is made that a request to call the Chairman, NHRC was turned down without reasons. This according to us is a plea which needs to be noticed and rejected. The statement of Zahira was recorded by NHRC in the presence of the Chairman (a retired Chief Justice of this Court) and several members which included a retired Judge of this Court). The allegation that it was not properly recorded or that somebody else's statement was recorded and Zahira was asked to put the signatures, as she has tried to make out is clearly untenable. If we may say so, such a plea should not have been raised as it reflects on the credibility of functionaries of a body like NHRC. The other pleas which have been enumerated above do not in any way affect credibility or acceptability of the report. The allegation that the Inquiry Officer acted with some pre- conceived ideas and/or report was based on presumptions is not correct. The conclusions drawn by the Inquiry Officer have their foundation on materials which have been elaborately discussed by the Inquiry Officer. Much has been made of the fact that original affidavit was not filed. The reason for this has been explained, the Inquiry Officer has deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arliament 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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". As has been noticed earlier in the earlier case (reported in 2004 (4) SCC 158), the role to be played by Courts, witnesses, investigating officers, public prosecutors has to be focused, more particularly when eyebrows are raised about their roles. In this context, reference may be made to Section 311 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. Whereas the word used in the first part is "may", the second part uses "shall". In co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereas 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: "The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards." Restraints on the processes for determining the truth are multi-faceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common law method of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process : & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the evidence, oral and circumstantial, and not by an isolated scrutiny. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. "Witnesses" as Bentham said: are the eyes and ears of justice. Hence, the importance and primary 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution 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 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 fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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