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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 ..... law, one fourth each is attributed to the person committing the adharma, witness, the judges and the ruler .) This case has its matrix in an appeal filed by Zahira Habibullah 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. [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Considering the materials placed befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing details: 1. 'Rs.65,000/- Sale consideration of one house sold in the month of November, 2001 2. ₹ 40,000/(Approx.)- Sale consideration of two-three wheelers sold to Scrap dealer (Kabadi) 3. ₹ 30,000/- Received from Insurance Company by mother on account of damages to motor cycle. 4. ₹ 32,000/- Sale consideration of scrap of machinery of Bakery 5. ₹ 1,50,000/- (Approx.) Sale consideration of scrap of Bakery 6. ₹ 50,000/- Compensation for damages of house received from Government through cheque in favour of her mother 7. ₹ 50,000/- Received by mother as ₹ 40,000/- compensation of her sister's death from the Government through cheque 8. ₹ 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 ₹ 50,000/- received as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s amount is deemed to be accepted, then the total of the receipts will be ₹ 3,84,096 (Rs. 2,02,096 + ₹ 1,82,000). Investments: S. No. Amount Remarks 1. ₹ 45,000/- Deposited by her in the Bank Account No. 11348 with Bank of Baroda, Nawapura Branch at Vadodara. 2. ₹ 52,045/- Deposits in a joint account No. 16754 with her brother, Nasibullah with Syndicate Bank, Goddev Branch, Bhayander. 3. Rs.1,37,384/- Deposits in her brother's account No. 16667 with Syndicate Bank, Goddev Branch, Bhayander. 4. ₹ 1,42,256/- Deposits in her mother's account No. 16669 with Syndicate Bank, Goddev Branch, Bhayander. 5. Rs. 73,000/- Purchase of two plots and construction to the tune of ₹ 66,000/- and spent ₹ 7,000/- on renovation of best bakery building. 6. Rs. 60,000/- Invested agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re adopted and the agreed procedure was never followed. (4) There was lack of fair objective and reasonable approach. The pre-requisites of an objective enquiry were missing. There was no intelligent appreciation of facts. (5) The Inquiry Officer appeared to be guided by Teesta Setalwad. The conclusion that Zahira had approached this Court for a fresh trial is wrong. (6) The request for examining the Chairman, NHRC was not accepted without indicating any reason. (7) Zahira was not only the person who had made departure from her stand purportedly recorded during investigation, there were others but no effort was made 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 up their cases. It is surprising why they only chose Zahira. (8) The petition filed before this Court was not in fact signed by Zahira but was signed by Teesta and the mere fact that she had filed a Vakalatnama would not make her responsible for the statements made in the affidavit. (9) Upto the point of time of the Press Conference Zahira was under the control of Teesta and she was a mere puppet in her hands and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong in the process. It was for Zahira to explain whether she was either telling the truth or making false statement. Merely stating that she was acting as a puppet in the hands of Teesta is not sufficient. Much has been made by learned counsel for Zahira about some observations made by Inquiry Officer in his report. A bare reading of the observations makes it clear that what is being submitted by learned counsel for Zahira is by reading observations out of context. The procedure adopted during enquiry has been characterized to be unfair and not fair and transparent procedure. On a bare perusal of the proceedings of the enquiry, it is clear that the procedure adopted was quite transparent. The proceedings were conducted in the presence of learned counsel for the parties and/or the parties themselves. After the questions were asked by the Inquiry Officer, learned counsel and the parties were asked if any further questions were to be asked and as the records revealed whenever any question was suggested that was asked. Grievance is made that scope for cross examination was not given. That according to us is really of no consequence. What questions in cross examination by learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Court at Mumbai where the trial is stated to be going on and the effect of her statement made during trial shall be considered in the trial itself. Acceptance of the report in the present proceedings cannot have any determinative role in the trial. Serious questions arise as to the role played by witnesses who changed their versions more frequently than chameleons. Zahira's role in the whole case is an eye-opener for all concerned with the administration of criminal justice. As highlighted at the threshold the criminal justice system is likely to be affected if persons like Zahira are to be left unpunished. Not only the role of Zahira but also of others whose conduct and approach before the Inquiry Officer has been highlighted needs to be noted. The Inquiry Officer has found that Zahira could not explain her assets and the explanations given by her in respect of the sources of bank deposits etc. have been found to be unacceptable. We find no reason to take a different view. During the course of hearing, we had asked learned counsel appearing for Zahira as to whether they would like to be heard on the question of the consequential order, if any, if the report is acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... play, it will be destruction of the fundamental edifice on which justice delivery system stands. People for whose benefit the Courts exists shall start doubting the efficacy of the system. Justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking that the Judge was biased . (Per Lord Denning MR in Metropolitan Properties Ltd. v. Lannon (1968) 3 All ER 304 (CA). The perception may be wrong about the judge's bias, but the Judge concerned must be careful to see that no such impression gains ground. Judges like Ceaser's wife should be above suspicion (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 judge exposes himself to unnecessary criticism. At the same time the Judge is not to innovative at pleasure. He is not a Knight-errant roaming at will in pursuit 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 just and fair has to be seen devoid of flaw. It has to keep promise to justice and it cannot stay petrified and sit non-challantly. The law should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness 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 the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences. In 1846, in a judgment which Lord Chancellor Selborne would later describe as one of the ablest judgments of one of the ablest judges who ever sat in this court, Vice-Chancellor Knight Bruce said : The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd related to the nature of crime, persons involved - directly or operating behind, social impart and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system. 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 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 has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar trian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lapse 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 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 Dhanraj Singh @ Shera and Ors. v. State of Punjab (JT 2004(3) SC 380). It was observed as follows: 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 requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper 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 to play. In the aforesaid background, we direct as follows: (1) Zahira is sentenced to undergo simple imprisonment for one year and to pay cost of ₹ 50,000/- and in case of default of payment within two months, she shall suffer further imprisonment of one year; (2) Her assets including bank deposits shall remain attached for a period of three months. The Income Tax Authorities are directed to initiate proceedings requiring her to explain the sources of acquisition of various assets and the expenses met by her during the period from 1.1.2002 till today. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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