TMI Blog2009 (5) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... f each of these cases have now been received. We have considered the submissions made by Mr. Harish N. Salve, learned amicus curiae, Mr. Mukul Rohtagi, learned Counsel for the State, Ms. Indira Jaisingh and other learned Counsel. It is an established fact that witnesses form the key ingredient in a criminal trial and it is the testimonies of these very witnesses, which establishes the guilt of the accused. It is, therefore, imperative that for justice to be done, the protection of witnesses and victims becomes essential, as it is the reliance on their testimony and complaints that the actual perpetrators of heinous crimes during the communal violence can be brought to book. Further, in the case of Zahira v. State of Gujarat [ 2006 (3) TMI 729 - SUPREME COURT] , while transferring what is known as the `Best Bakery Case', directed: The State of Gujarat shall also ensure that the witnesses are produced before the concerned court, whenever they are required to attend them, so that they can depose freely without any apprehension of threat or coercion from any person. In case any witness asks for protection, the State of Maharashtra shall also provide such protection as deem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be overstated. (iii) The SIT has suggested that the six Fast Track Courts be designated by the High Court to conduct trial, on day-to-day basis, in the five districts. (iv) It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner. In order to ensure that all concerned have the highest degree of confidence in the system being put in place, it would be advisable if the Chief Justice of the High, Court of Gujarat selects the judicial officers to be so nominated. The State of Gujarat has, in its suggestions, stated that it has no objection to constitution of such fast track courts , and has also suggested that this may be left to Hon'ble the Chief Justice of the High Court. (v) Experienced lawyers familiar with the conduct of criminal trials are to be appointed as Public Prosecutors. In the facts and circumstances of the present case, such public prosecutors shall be appointed in consultation with the Chairman of the SIT. The suggestions of the State Government indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities. (xii) In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witness. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to relocate the witnesses. (xiii) All the aforesaid directions are to be considered by SIT by looking into the threat perception if any. (xiv) The SIT would continue to function and carry out any investigations that are yet to be completed, or any further investigation that may arise in the course of the trials. The SIT would also discharge such functions as have been cast upon them by the present order. (xv) If there are any matters on which directions are considered necessary (including by way of change of public prosecutors or witness protection), the Chairman of the SIT may (either directly or through the Amicus Curiae) move this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Bureau of Investigation to undertake inquiry/investigation including further investigation in nine cases. It was further directed that the SIT shall submit its report within a particular time. The State Government issued a Notification dated 1.4.2008 constituting the SIT. On 11.2.2009 the SIT has submitted its consolidated report. It has indicated therein that since its constitution the SIT has made considerable progress in respect of each of the nine cases and the current status is as follows: MANU-SC-0713-2009 2. In separate sealed covers the IO's report in each case accompanied by the Supervising IGP and the Chairman's comments were submitted. The other members of the team are Shri C.B. Satpathy, Smt. Geetha Johri, Shri Shivanand Jha and Shri Ashish Bhatia. The last three are officers of the Indian Police Service from the Gujarat cadre. 3. Pursuant to the directions given by this Court copies of the report were supplied to learned Amicus Curiae and learned Counsel for the State of Gujarat. Suggestions have been given by learned Amicus Curiae, learned Counsel for the State and some of the parties in the proceedings. 4. Several important aspects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove suspicion (Per Bowen, L.J. in Leeson v. General Council of Medical Education.) x x x 24. It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep the promise to justice and it cannot stay petrified and sit nonchalantly. The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection lose hope (see Jennison v. Baker). Increasingly, people are believing as observed by Salmon 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. x x x 30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 at every step. 33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new changing circumstances, and exigencies of the situation--peculiar at times and related to the nature of crime, persons involved--directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system. 34. As will presently appear, the principle of a fair trial manifests 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 particularised legal rules and principles and provides the ultimate rationale and touc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. 37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... face rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery. Doubts are raised about the roles of investigating agencies. Consequences of defective investigation have been elaborated in Dhanaj Singh v. State of Punjab ,. It was observed as follows: (SCC p.657, paras 5-7) 5. In the case of a defective investigation the court has to be circumspect i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey power or political power which has become the order of the day. If ultimately the truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before the courts mere mock trials as are usually seen in movies. 8. It is an established fact that witnesses form the key ingredient in a criminal trial and it is the testimonies of these very witnesses, which establishes the guilt of the accused. It is, therefore, imperative that for justice to be done, the protection of witnesses and victims becomes essential, as it is the reliance on their testimony and complaints that the actual perpetrators of heinous crimes during the communal violence can be brought to book. 9. Vide an order dated 8th August 2003 in the matter of National Human Rights Commission v. State of Gujarat , this Court regretted that no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses. 10. Further, in the case of Zahira v. State of Gujarat 2004CriLJ2050 ,while transferring what is known as the `Best ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping with or could help with the investigation of a crime. Under a similar law in Hong-Kong, Crimes Ord. (Cap. 200) HK, if the threat or intimidation is directed even as against a friend or relative of the witness, that becomes a punishable offence 17. In the United States, the Organized Crime Control Act, 1970 and later the Comprehensive Crime Control Act, 1984 authorized the Witness Security Programme. The Witness Security Reform Act, 1984 provides for relocation and other protection of a witness or a potential witness in an official proceeding concerning an organised criminal activity or other serious offence. Protection may also be provided to the immediate family of, or a person closely associated with, such witness or potential witness if the family or person may also be endangered on account of the participation of the witness in the judicial proceeding. 18. The Attorney General takes the final decision whether a person is qualified for protection from bodily injury and otherwise to assure the health, safety and welfare of that person. In a large number of cases, witnesses have been protected, relocated and sometimes even given new identities. The Programme assists in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecutor etc. [Section 7) and apply for being placed under protection. The application is then considered by a Witness Protection Officer who prepares a report, which is then submitted to the Director [Section 9]. The Director, having due regard to the report and the recommendation of the Witness Protection Officer, takes into account the following factors, inter-alia, [Section 10] for deciding whether a person should be placed under protection or not: (i) The nature and extent of the risk to the safety of the witness or related person. (ii) The nature of the proceedings in which the witness has given evidence or may be required to give evidence. 21. The importance, relevance and nature of the evidence, etc, in European countries such as Italy, Germany and Netherlands, the Witness Protection Programme covers organised crimes, terrorism, and other violent crimes where the accused already know the witness/victim. 22. But it would not be proper to give any general directions for witness protection. It would primarily depend upon the fact situation of each case. Practical difficulties in effectively implementing any witness protection scheme cannot be lost sight of. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... realm of protecting the rights of the victims it is important that the decorum of the court is maintained at all times. In order to balance the need for a public trial with the need to ensure that victims/witnesses are not intimidated within the court rooms, it is necessary for the court to impose reasonable restrictions on the entry of persons into the court room. 28. The role of public prosecutors in ensuring a fair trial is of paramount importance. 29. This Court in S.B. Shahane and Ors. v. State of Maharashtra and Anr . [1995]3SCR672 had stressed on the desirability of separation of prosecution agency from investigation agency. It was observed that such Assistant Public Prosecutors could not be allowed to continue as personnel of the Police Department and to continue to function under the control of the head of the Police Department. State Governments were directed to constitute a separate cadre of Assistant Public Prosecutors by creating a separate prosecution Department making its head directly responsible to the State Government. 30. Many commonwealth countries like Australia have a Commonwealth Director of Public Prosecutions, which was set up by the Director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved for terrorists and organized criminals. In South Africa public prosecutions are conducted by an independent National Director of Public Prosecutions (NDPP). The NDPP is supported by a Chief Executive Officer, Marion Sparg, Deputies, regional Directors of Public Prosecutions (DPP's), and several Special Directors. The National Director is also head of the controversial Directorate of Special Operations (DSO) - commonly known as the Scorpions - which deals with priority and organized crime. In 2005, the unit instituted proceedings against the country's Deputy President, Jacob Zuma, leading to his dismissal. In England and Wales, the office of Director of Public Prosecutions was first created in 1880 as part of the Home Office, and had its own department from 1908. The DPP was only responsible for the prosecution of a small number of major cases until 1986 when responsibility for prosecutions was transferred to a new Crown Prosecution Service with the DPP as its head. He/she is appointed by the Attorney General for England and Wales. In Northern Ireland a similar situation existed, and the DPP now heads the Public Prosecution Service for Northern Ireland. 31. The Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under Sub-section (3), or as the case may be, Sub-section (8), of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under Sub-section (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution. (7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify. (8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor. 34. As noted above, the role of victim in a criminal trial can never be lost sight of. He or she is an inseparable stakeholder in the adjudicating process. 35. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, was adopted by the General Assembly through a resolution 40/34 of 29th November 1985. Articles 4 and 5 of the above mentioned United Nations Declaration categorically states ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of the consideration of this report. 40. This position was illuminatingly stated in Abhinandan Jha and Ors. v. Dinesh Mishra 1968CriLJ97. 41. In J.K. International v. State Government of NTC 2001CriLJ1264 , this Court had held that: A person at whose behest an investigation is lunched by the police is not altogether wiped out of the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. 42. Since the protection of a witness is a paramount importance it is imperative that if and when any witness seeks protection so that he or she can depose freely in court, the same has to be provided. It is therefore directed that if a person who is examined as a witness needs protection to ensure his or her safety to depose freely in a court he or she shall make an application to the SIT and the SIT shall pass necessary orders in the matter and shall take into account all the relevant aspects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sheets shall be filed in each of these cases as the SIT has found further material and/or has identified other accused against whom charges are now to be brought. (ii) The conduct of the trials has to be resumed on a day-to-day basis - keeping in view the fact that the incidents are of January, 2002 and the trials already stand delayed by seven years. The need for early completion of sensitive cases more particularly in cases involving communal disturbances cannot be overstated. (iii) The SIT has suggested that the six Fast Track Courts be designated by the High Court to conduct trial, on day-to-day basis, in the five districts as follows: i) Ahmedabad (Naroda Patia, Naroda Gam) ii) Ahmedabad (Gulbarg). iii) Mehsana (for two cases). iv) Saabarkantha opened(British National case) v) Anand vi) Godhra Train Case (at Sabarmati Jail, Ahmedabad). (iv) It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner. In order to ensure that all concerned have the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the court: In case of witnesses following steps shall be taken: (a) Ensuring safe passage for the witnesses to and from the court precincts. (b) Providing security to the witnesses in their place of residence wherever considered necessary, and (c) Relocation of witnesses to another state wherever such a step is necessary. (x) As far as the first and the second is concerned, the SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness. (xi) In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities. (xii) In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witness. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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