2004 (4) TMI 629 - SC - Indian Laws

Seeking examination of witnesses u/s 311 - Witness Protection and Credibility of Evidence - Conduct of the Public Prosecutor - Role of the Investigating Agency - Acceptance of Additional Evidence and Re-trial - Transfer of Trial Outside the State - The case, known as the Best Bakery Case, involved macabre killings due to communal frenzy. Zahira, an eye-witness, alleged that she was forced to depose falsely due to threats and coercion, raising significant issues regarding witness protection and the credibility of evidence before the Court. HELD THAT - It is not that the Court has to be satisfied that the additional evidence would be necessary for rendering a verdict different from what was rendered by the trial Court. In a given case even after assessing the additional evidence, the High Court can maintain the verdict of the trial Court and similarly the High Court on consideration of the additional evidence can upset the trial Court's verdict. It all depends upon the relevance and acceptability of the additional evidence and its qualitative worth in deciding the guilt or innocence of the accused. It is to be noted at this stage that it is not the prosecution which alone can file an application u/s 391 of the Code. It can also be done, in an appropriate case by the accused to prove his innocence. Therefore, any approach without pragmatic consideration defeats the very purpose for which Section 391 of the Code has been enacted. Certain observations of the High Court like, that if the accused persons were really guilty they would not have waited for long to commit offences or that they would have killed the victims in the night taking advantage of the darkness and/or that the accused persons had saved some persons belonging to the other community were not only immaterial for the purpose of adjudication of application for additional evidence but such surmises could have been carefully avoided at least in order to observe and maintain the judicial calm and detachment required of the learned Judges in the High Court. The conclusions of the High Court that 65 to 70 persons belonging to the attacked community were saved by the accused or others appears to be based on the evidence of the relatives of the accused who were surprisingly examined by prosecution. We shall deal with the propriety of examining such persons, infra. These aspects could have been, if at all permissible to be done, considered after accepting the prayer for additional evidence. It is not known as to what extent these irrelevant materials have influenced the ultimate judgment of the High Court, in coming with such a strong and special plea in favour of a prosecuting agency which has miserably failed to demonstrate any credibility by its course of action. The entire approach of the High Court suffers from serious infirmities, its conclusions lopsided and lacks proper or judicious application of mind. Arbitrariness is found writ large on the approach as well as the conclusions arrived at in the judgment under challenge, in unreasonably keeping out relevant evidence from being brought on record. Right from the beginning, the stand of the appellant- Zahira was that the investigating agency was trying to help the accused persons and so was the public prosecutor. If the investigation was faulty, it was not the fault of the victims or the witnesses. If the same was done in a manner with the object of helping the accused persons as it appears to be apparent from what has transpired so far, it was an additional ground just and reasonable as well for accepting the additional evidence. It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decisions of Courts - coram non judis and non est. There is, therefore, every justification to call for interference in these appeals. It is true that the prosecution is not bound to examine each and every person who has been named as witness. A person named as a witness may be given up when there is material to show that he has been gained over or that there is no likelihood of the witness speaking the truth in the Court. There was no such material brought to the notice of the Courts below to justify non-examination. The materials on record are totally silent on this aspect. Another aspect which has been lightly brushed aside by the High Court is that one person who was to be examined on a particular date was examined earlier than the date fixed. This unusual conduct by the prosecutor should have been seriously taken note of by the Trial Court and also by the High Court. It is to be noted that the High Court has found fault with DCP Shri Piyush Patel and has gone to the extent of saying that he has miserably failed to discharge his duties; while finding at the same time that police inspector Baria had acted fairly. The criticism according to us is uncalled for. Role of Public Prosecutor was also not in line with what is expected of him. Though a Public Prosecutor is not supposed to be a persecutor, yet the minimum that was required to be done to fairly present the case of the prosecution was not done. Time and again, this Court stressed upon the need of the investigating officer being present during trial unless compelling reasons exist for a departure. In the instant case, this does not appear to have been done, and there is no explanation whatsoever why it was not done. Even Public Prosecutor does not appear to have taken note of this desirability. We do not think it necessary to highlight all the infirmities in the judgment of the High Court or the approach of the Trial Court lest nothing credible or worth mentioning would remain in the process. This appears to be a case where the truth has become a casualty in the trial. We are satisfied that it is fit and proper case, in the background of the nature of additional evidence sought to be adduced and the perfunctory manner of trial conducted on the basis of tainted investigation a re-trial is a must and essentially called for in order to save and preserve the justice delivery system unsullied and unscathed by vested interests. We should not be understood to have held that whenever additional evidence is accepted, re-trial is a necessary corollary. The case on hand is without parallel and comparison to any of the cases where even such grievances were sought to be made. It stands on its own as an exemplary one, special of its kind, necessary to prevent its recurrence. It is normally for the Appellate Court to decide whether the adjudication itself by taking into account the additional evidence would be proper or it would be appropriate to direct a fresh trial, though, on the facts of this case, the direction for re-trial becomes inevitable. Conclusion The Supreme Court allowed the appeals, directing a re-trial outside the State of Gujarat, acceptance of additional evidence, and ensuring witness protection to uphold the integrity of the justice delivery system.

Summary

Issues Involved:
1. Witness Protection and Credibility of Evidence
2. Conduct of the Public Prosecutor
3. Role of the Investigating Agency
4. Acceptance of Additional Evidence and Re-trial
5. Transfer of Trial Outside the State

Summary:

1. Witness Protection and Credibility of Evidence:
The case, known as the "Best Bakery Case," involved macabre killings due to communal frenzy. Zahira, an eye-witness, alleged that she was forced to depose falsely due to threats and coercion, raising significant issues regarding witness protection and the credibility of evidence before the Court.

2. Conduct of the Public Prosecutor:
The State of Gujarat raised concerns about the improper conduct of the trial by the public prosecutor. The prosecutor failed to protect key witnesses, did not request in-camera trials, and did not examine injured witnesses. The public prosecutor's actions were seen as biased and not befitting his position.

3. Role of the Investigating Agency:
The investigating agency's role was criticized as perfunctory and biased. The investigation was perceived as tainted, with allegations that it aimed to protect the accused rather than bring the culprits to justice. The investigation was found to be dishonest and faulty, which should have justified a re-trial.

4. Acceptance of Additional Evidence and Re-trial:
The High Court rejected the State's application for additional evidence u/s 391 and 311 of the Code of Criminal Procedure, 1973, and for a re-trial. The Supreme Court found that the High Court did not properly consider the application for additional evidence and failed to address serious lapses in the investigation and trial. The Supreme Court emphasized the need for a fair trial and the importance of discovering the truth, directing a re-trial and acceptance of additional evidence to ensure justice.

5. Transfer of Trial Outside the State:
Given the unhealthy atmosphere and subversion of the justice delivery system, the Supreme Court directed that the re-trial be conducted by a Court under the jurisdiction of the Bombay High Court. The Chief Justice of the Bombay High Court was requested to nominate a competent Court. The State of Gujarat was directed to ensure the transfer of all documents and records and to provide necessary protection to witnesses.

Conclusion:
The Supreme Court allowed the appeals, directing a re-trial outside the State of Gujarat, acceptance of additional evidence, and ensuring witness protection to uphold the integrity of the justice delivery system.