2009 (5) TMI 982 - SC - Indian Laws

Human Rights of Witnesses and Victims - Whether a person is qualified for protection from bodily injury and otherwise to assure the health safety and welfare of that person - Gujarat Government constituted a five members Special Investigation Team ( SIT ) - headed by Mr. R.K. Raghavan former Director of the Central Bureau of Investigation - undertake inquiry/investigation - Petitions sought various reliefs including the transfer of some of the ongoing trials and a reinvestigation/further investigation into the various incidents on the basis of which charges had been filed in these trials this Court in the first instance granted a stay of these ongoing trials - HELD THAT - The reports of the SIT in respect of 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 deemed necessary in addition to the protection to be provided for by the State of Gujarat. 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 and direct such police official/officials as it considers proper to provide the protection to the concerned person. It shall be the duty of the State to abide by the direction of the SIT in this regard. It is essential that in riot cases and cases involving communal factors the trials should be held expeditiously. Therefore we request the Hon ble Chief Justice of Gujarat High Court to designate court(s) in each district where the trial of the concerned cases are to be held. The Designated Courts shall take up the cases in question. Taking into account the number of witnesses and the accused persons and the volumes of evidence it is open to the High Court to designate more than one court in a particular district. Needless to say that these cases shall be taken up by the Designated Court on a day-to-day basis and efforts shall be made to complete the trial with utmost expedition. The SIT shall furnish periodic reports if there is any further inquiry/investigation. The State of Gujarat shall also file a status report regarding the constitution of the courts in terms of the directions to be given by the Hon ble Chief Justice of the High Court within three months. The matter shall be listed further as and when directed by this Court. The following directions are given presently (i) Supplementary charge 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. (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 indicate acceptance of this proposal. It shall be open to the Chairman of SIT to seek change of any Public prosecutor so appointed if any deficiency in performance is noticed. If it appears that a trial is not proceeding as it should and the Chairman of the SIT is satisfied that the situation calls for a change of the public prosecutor or the appointment of an additional public prosecutor to either assist or lead the existing Public Prosecutor he may make a request to this effect to the Advocate General of the State who shall take appropriate action in light of the recommendation by the SIT. (vi) If necessary and so considered appropriate SIT may nominate officers of SIT to assist the public prosecutor in the course of the trial. Such officer shall act as the communication link between the SIT and the Public Prosecutor to ensure that all the help and necessary assistance is made available to such Public Prosecutor. (vii) The Chairman of the SIT shall keep track of the progress of the trials in order to ensure that they are proceeding smoothly and shall submit quarterly reports to this Court in regard to the smooth and satisfactory progress of the trials. (viii) The stay on the conduct of the trials are vacated in order to enable the trials to continue. In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary the SIT can request the Public Prosecutor to seek cancellation of the bails already granted. (ix) For ensuring of a sense of confidence in the mind of the victims and their relatives and to ensure that witnesses depose freely and fearlessly before 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 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 Court for appropriate directions. (xvi) It was apprehension of some learned Counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the Court shall have to deal with such situations sternly and pass necessary orders. The SIT shall also look into this area. (xvii) Periodic three monthly reports shall be submitted by the SIT to this Court in sealed covers. List after four months.

Summary

Issues Involved:
1. Fair trial
2. Witness protection
3. Role of public prosecutors
4. Further role of SIT

Issue-wise Detailed Analysis:

Fair Trial:
The judgment emphasizes that the discovery, vindication, and establishment of truth are the main purposes of courts of justice. It references the case of Zahira Habibullah Sheikh v. State of Gujarat, noting that the courts must maintain public confidence and avoid any appearance of bias. The principle of a fair trial permeates many areas of law, requiring a balance of interests between the accused, the victim, and the public. The court highlighted that a fair trial involves an impartial judge, a fair prosecutor, and an atmosphere of judicial calm. The trial should be a search for the truth, not a contest over technicalities, and must protect both the innocent and punish the guilty.

Witness Protection:
Witnesses are crucial in a criminal trial, and their protection is essential to ensure they can testify freely without fear of retribution. The judgment notes the lack of a formal witness protection scheme in India, referencing previous cases and reports that have highlighted this issue. The court directed that if a witness seeks protection, they should apply to the SIT, which will then arrange for necessary protection. The State of Gujarat is tasked with ensuring the safety of witnesses, including providing safe passage to and from court, security at their residence, and relocation if necessary. The SIT is the nodal agency to decide the type of protection required.

Role of Public Prosecutors:
The judgment underscores the importance of competent public prosecutors in ensuring a fair trial. It mandates that public prosecutors be appointed in consultation with the SIT, whose opinion is binding on the state government. The court also allows for the replacement of public prosecutors if their performance is found deficient. The SIT may nominate officers to assist the public prosecutors during the trial to ensure effective communication and support.

Further Role of SIT:
The SIT, constituted by the Gujarat Government as directed by the Supreme Court, has made significant progress in investigating the nine cases. The court directed the SIT to continue functioning until the completion of the trials and to conduct any further inquiry or investigation as required. The SIT is also responsible for submitting periodic reports on the progress of the trials. The court vacated the stay on the trials, emphasizing the need for their early completion. Fast track courts were designated to conduct the trials on a day-to-day basis, and the Chief Justice of the Gujarat High Court was requested to appoint senior judicial officers to oversee these trials.

Additional Directions:
1. Supplementary Charge Sheets: The SIT is to file supplementary charge sheets in each case where further material or additional accused have been identified.
2. Day-to-Day Trials: Trials are to be resumed on a day-to-day basis to ensure timely completion.
3. Designation of Fast Track Courts: Six fast track courts are designated in five districts to handle the trials.
4. Senior Judicial Officers: The Chief Justice of the Gujarat High Court is to select senior judicial officers for the trials.
5. Experienced Public Prosecutors: Public prosecutors are to be appointed in consultation with the SIT, with provisions for their replacement if necessary.
6. Witness Protection: The SIT is to ensure the protection of witnesses, including safe passage, residential security, and relocation if needed.
7. Quarterly Reports: The SIT is to submit quarterly reports to the Supreme Court on the progress of the trials.
8. Cancellation of Bail: The SIT may request the cancellation of bail if necessary.
9. Court Decorum: The court must maintain decorum and handle any unruly situations sternly.
10. Periodic Reports: The SIT is to submit periodic reports every three months.

Conclusion:
The Supreme Court's judgment in this case underscores the importance of a fair trial, witness protection, and the role of competent public prosecutors. The SIT is given a continued mandate to ensure the thorough investigation and prosecution of the cases, with the court providing detailed directions to facilitate the smooth and expeditious conduct of the trials. The judgment aims to balance the rights of the accused, the victims, and the public, ensuring justice is served in a fair and transparent manner.