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TMI Blog2009 (5) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... gar, Bina Madhavan, Tarun Satija, Adv. for Lawyer's Knit & Co., Manish Kumar, Ansar Ahmad Chaudhary, Manoj Dwivedi, G. Venkatshwar, Anil Shrivastav, Ritu Raj, V.S. Pragasam, S. J. Aristotle, Prabu Rama Subramanian, Esward Belho, Rituraj Biswas, P. Athuimei, R. Naga, Manjit Singh, T.V. George, K.H. Nobin Singh, Varuna Bhandari Gugnani, Rajesh Singh, S. Wasim, A. Qadri, Anil Katiyar, D.S. Mahra, Aparna Bhat, K. Sheshehary, Madhulika Mohta, Atul Jha, D.K. Sinha, Ajay Pal, Gopal Singh, Shweta Singh, Manish Kumar, Sangita Singh, Anand Grover, Lalit Mohini Phat, Naveen R. Nath, C.D. Singh, Riku Sarma, Adv. for Corporate Law Group, Tara Chandra Sharma, Neelam Sharma, K.R. Sasiprabhu, A. Subhashini, J.S. Attri, Bimal Roy Jad, Ravi Prakash Mehrotra, Radha Shyam Jena, P.V. Dinesh, Gopal Prasad, Gautam Godara, R.K. Adsure, Ranjan Mukherjee, Amit Kr. Chawla, Sanjay R. Hedge, P. Parmeswaranand Rao,Sameer Parekh & Co. S.N. Bhat, Advs. JUDGMENT Arijit Pasayat, J. 1. By order dated 26.3.2008 in this group of cases this Court had directed the Gujarat Government to constitute a five members Special Investigation Team (in short the `SIT') to be headed by Mr. R.K. Raghavan, former Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishment of truth are certainly the main purposes of courts of justice. They are the underlying objects for the existence of the courts of justice. 7. The importance of the witnesses in a criminal trial does not need any reiteration. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Ors. 2006CriLJ1694 it was observed as under: 22. The complex pattern of life which is never static requires a fresher outlook and a timely and vigorous moulding of old precepts to some new conditions, ideas and ideals. If the court acts contrary to the role it is expected to play, it will be destruction of the fundamental edifice on which the justice delivery system stands. People for whose benefit the courts exist 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: `The Judge was biased.' " (Per Lord Denning, M.R. in Metropolitan Properties Co. Ltd. v. Lannon All ER 310 A.) 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 Caesar's wife should be above suspicion (Per Bowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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." 32. Restraints on the processes for determining the truth are multifaceted. 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: It is the merit of the common law that it decides the case first and determines the principles afterwards.... It is only after a series of determination on the same subject-matter, that it becomes necessary to `reconcile the cases', as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residing 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. The 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 undermining the fair name and standing of the judges as impartial and independent adjudicators. 36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 40. "Witnesses" as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy 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 incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle the truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sensitive cases involving those in power, who have 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 the court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation (sic repetition). We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short "the TADA Act") have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day. If ultimatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure for the physical protection of witnesses. 14. The 178th Report of Law Commission, again, referred to the fact of witness turning hostile, and the recommendations were only to prevent witnesses from turning hostile. The report suggested an amendment to insert Section 164A to the Code. 15. The Law Commission of India's 198th Report has also voiced similar concerns and has categorically stated "it is accepted today that WIP is necessary in the case of all serious offences wherein there is danger to witnesses and it is not confined to cases of terrorism or sexual offences" 16. Under the English law, threatening a witness from giving evidence, is contempt of Court. So also any act of threat or revenge against a witness after he has given evidence in Court, is also considered as contempt. In 1994 the U.K. Government enacted a law known as Criminal Justice and Public Order Act, 1994 which provides for punishment for intimidation of witnesses. Section 51 of the Act not only protects a person who is actually going to give evidence at a trial, but also protects a person who is helping with or could help with the investigation of a crime. Under a similar law in Hong-Kong, Crimes O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others) the Commissioner of the Australian Federal Police arranges or provides protection and other assistance for witnesses [Section 4]. The witness must disclose a wealth of information about himself before he is included in the Programme. This includes his outstanding legal obligations, details of his criminal history, details of his financial liabilities and assets etc. [Section 7]. The Commissioner has the sole responsibility of deciding whether to include a witness in the Programme. 20. The Witness Protection Act, 1998 of South Africa provides for the establishment of an office called the Office for Witness Protection within the Department of Justice. The Director of this office is responsible for the protection of witnesses and related persons and exercises control over Witness Protection Officers and Security Officers [Section 4]. Any witness who has reason to believe that his safety is threatened by any person or group or class of persons may report such belief to the Investigating Officer in a proceeding or any person in-charge of a police station or the Public Prosecutor etc. [Section 7) and apply for being placed under protection. The application is then considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in Member States, including those laws proscribing criminal abuse of power. It is they who need protection. 25. This is essentially to obliterate the apprehension that the public prosecutor is not fair in court or is not conducting the prosecution in the proper manner. The State of Gujarat shall appoint public prosecutors in each of the cases in consultation with the SIT which opinion shall be final and binding on the State Government. 26. It needs to be emphasized that the rights of the accused have to be protected. At the same time the rights of the victims have to be protected and the rights of the victims cannot be marginalized. Accused persons are entitled to a fair trial where their guilt or innocence can be determined. But from the victims' perception the perpetrator of a crime should be punished. They stand poised equally in the scales of justice. 27. In order to ensure that the trials are conducted in a fair manner and within the realm of protecting the rights of the victims it is important that the decorum of the court is maintained at all times. In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic Prosecutions of Hong-Kong, China heads the prosecutions Division of the Department of Justice, which is responsible for prosecuting trials and appeals on behalf of the Hong Kong Special Administrative Region, providing legal advice to law enforcement agencies, acting on behalf of the Secretary for Justice in the institution of criminal proceedings, and providing advice and assistance to bureaux and departments in relation to any criminal law aspects of proposed legislation. The DPP is superintended by the Secretary for Justice, who is also accountable for the decisions of the DPP. The Director of Public Prosecutions in the Republic of Ireland has been responsible for prosecution, in the name of the People, of all indictable criminal offences in the Republic of Ireland since the enactment of the Prosecution of Offences Act 1974. Before 1974, all crimes and offences were prosecuted at the suit of the Attorney General. The DPP may also issue a certificate that a case should be referred to the Special Criminal Court; a juryless trial court usually reserved for terrorists and organized criminals. In South Africa public prosecutions are conducted by an independent National Director o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit. (2) A person shall be eligible . to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court. (3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State. (4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. (5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under Sub-section (1), or as the case may be, Sub-section (8), of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution. (6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under Sub-section (3), or as the case may be, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the existing Crime Victims Rights Act of 2004, categorically through Section 371(4) from chapter 237 provides for "the right to be heard at any public proceeding involving release, pleas or sentencing". 39. This Court had held in U.P.S.C. v. S. Papiah 1997CriLJ4636 that a closure report by the Prosecution cannot be accepted by the court without hearing the informant. Para 9-There can therefore, be no doubt that when, on a consideration of the report a made by the officer-in-charge of a police station under Sub-section 2(i) of Section 173 the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom the report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view 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 inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials, 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. 44. The matter was then heard from time to time and an order was then made on 26th March 2008 directing the establishment of the SIT, and for a further investigation into these matters. The matters under investigation were those arising out of (a) Crime No. 9/02 (b) Crime No. 100/02 (c) Crime No. 23/02 (d) Crime No. 98/02 (e) Crime No. 46/02 (f) Crime No. 67/02 (g) Crime No. 60/02 (h) Crime No. 26/02 (i) Crime No. 27/02 45. 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. 46. 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 tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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