Case Summary
| Citation | Zahira Habibulla H. Sheikh v. State of Gujarat(2004) 4 SCC 158 |
| Keywords | fair trail, best bakery case , sec 311 and 391 CrPC |
| Facts | On 02.03.2002 , Best bakery at Vadodara was burnt down by a mob of large number of people. In this incident 14 people died. The attacks were stated to be a part of retaliatory action to avenge killing of 56 persons burnt to death in the Sabarmati Express. In this case Zaheera named women was the main eye witness who lost family members including innocent children and helpless women in the incident. A day after the bakery was burnt the owners daughter Zaheera Sheikh lodged a police complaint against the 21 persons accused. In this , Zaheera turned hostile , her mother and her brothers retracted their statements in the court. Zaheera said that she was on the terrace while the incident took place and couldn’t identify the accused. Zaheera along with her mother told the Sunday express that she lied in the court because she feared for her life. The NHRC filed a special leave petition in the supreme court and asked for a retrial in a court outside Gujrat. In a sworn affidavit to the Supreme Court, Zaheera said she turned hostile because when she reached the court premises she met Chandra Kant Batthoo, who threatened her . He told her that if she stuck to her earlier statements , the remaining four members of her family will be killed. |
| Issues | Whether there is any importance of witnesses in ensuring fair trial? |
| Contentions | |
| Law Points | In this case, in many instances, the trial court and Prosecution seeing acting negligently and making a mockery of the serious issue. The prosecution in this case in many instances failed to perform its duty. There were large number of witness which were going to examined however all were become hostile. In affidavit the reason was given by the star witness Zaheera that threat was given to her for not giving true statement before the court. Even after this prosecution was failed to provide protection to the main witnesses. Prosecution rejected all the important witness to be examined and in all these trial court become a mute spectrum without raising any reasonable question. And unfortunately this kind of conduct was accepted by the High court. SC decision: *The court held that the prosecution was completely failed to perform its duty. During the examination of the main witness of the case, the prosecution was miserably failed to conduct a fair, unbiased and proper examination. It failed to provide protection to the main witness even after the affidavit by the star witness that threat was given to her. *Under sections 391 and 311 of Criminal Produce code the high court has the power to ensure that complete justice should be justice It appears on the face of the case that there were of evidence and witness which needed to be called and examined by the court. However, the did not use its power under the above-mentioned section. And upheld the decision of the trial court which need to reconsider. *The witness may turn hostile on account of threat, coercion, lures, and monetary considerations or because of power wielded by political clouts. Thus to ensure that a mockery is not created out of a courtroom trial, the state has to protect the witnesses. *The court held that proper and fair hearing must be given to both the accused as well as the victim. |
| Judgement | *The court held that the case should be transferred to Maharashtra high court for fair, just, and reasonable inquiry of the case. *The court give order of punishment of Imprisonment for one year and to pay the cost of Rs. 50,000 to Zaheera for changing continuously changing her statement. *The court order State Government to appoint another Public Prosecutor. *The court give direction to all the documents and records are forthwith transferred to the Court nominated by the Chief Justice of the Bombay High Court. It also ensure that the witnesses are produced before the concerned Court whenever they are required to attend that Court. |
| Ratio Decidendi & Case Authority |
Full Case Details
ARIJIT PASAYAT, J – 2. The present appeals have several unusual features and some of
them pose very serious questions of far reaching consequences. The case is commonly to be
known as “Best Bakery Case”. One of the appeals is by Zahira who claims to be an eye-witness
to macabre killings allegedly as a result of communal frenzy. She made statements and filed
affidavits after completion of trial and judgment by the trial Court, alleging that during trial she
was forced to depose falsely and turn hostile on account of threats and coercion. That raises an
important issue regarding witness protection besides the quality and credibility of the evidence
before Court. The other rather unusual question interestingly raised by the State of Gujarat itself
relates to improper conduct of trial by the public prosecutor. Last, but not the least that the role
of the investigating agency itself was perfunctory and not impartial. Though its role is perceived
differently by the parties, there is unanimity in their stand that it was tainted, biased and not
fair. While the accused persons accuse it for alleged false implication, the victims’ relatives like
Zahira allege its efforts to be merely to protect the accused.
2. The appeals are against judgment of the Gujarat High Court in
Criminal Appeal No. 956 of 2003 upholding acquittal of respondents-accused by
the trial Court. Along with said appeal, two other petitions namely Criminal
Miscellaneous Application No. 10315 of 2003 and Criminal Revision No. 583 of
2003 were disposed of. The prayers made by the State for adducing additional
evidence under Section 391 of the Code of Criminal Procedure, 1973 (in short the
‘Code’), and/or for directing retrial were rejected. Consequentially, prayer for
examination of witnesses under Section 311 of the Code was also rejected.
3. In a nutshell the prosecution version which led to trial of the accused
persons is as follows:
Between 8.30 p.m. of 1.3.2002 and 11.00 a.m. of 2.3.2002, a business concern known as
“Best Bakery” at Vadodara was burnt down by an unruly mob of large number of people. In the
ghastly incident 14 persons died. The attacks were stated to be a part of retaliatory action to
avenge killing of 56 persons burnt to death in the Sabarmati Express. Zahira was the main eyewitness who lost family members including helpless women and innocent children in the
gruesome incident. Many persons other than Zahira were also eye-witnesses. Accused persons
were the perpetrators of the crime. After investigation charge sheet was filed in June 2002.
4. During trial the purported eye-witnesses resiled from the statements
made during investigation. Faulty and biased investigation as well as perfunctory
trial were said to have marred the sanctity of the entire exercise undertaken to bring
the culprits to books. By judgment dated 27.6.2003, the trial Court directed
acquittal of the accused persons.
5. Zahira appeared before National Human Rights Commission (in short
the ‘NHRC’) stating that she was threatened by powerful politicians not to depose
against the accused persons. On 7.8.2003 an appeal not up to the mark and neither
in conformity with the required care, appears to have been filed by the State against
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the judgment of acquittal before the Gujarat High Court. NHRC moved this Court
and its Special leave petition has been treated as a petition under Article 32 of the
Constitution of India, 1950 (in short the ‘Constitution’). Zahira and another
organisation – Citizens for Justice and Peace filed SLP (Crl.) No. 3770 of 2003
challenging judgment of acquittal passed by the trial Court. One Sahera Banu
(sister of appellant-Zahira) filed the afore-noted Criminal Revision No. 583 of 2003
before the High Court questioning the legality of the judgment returning a verdict
of acquittal. Appellant-State filed an application (Criminal Misc. Application
NO.7677 of 2003) in terms of Sections 391 and 311 of the Code for permission to
adduce additional evidence and for examination of certain persons as witness.
Criminal Miscellaneous Application No. 9825 of 2003 was filed by the State to
bring on record a document and to treat it as corroborative piece of evidence. By
the impugned judgment the appeal, revision and the applications were dismissed
and rejected.
6. The State and Zahira had requested for a fresh trial primarily on the
following grounds:
When a large number of witnesses have turned hostile it should have raised a reasonable
suspicion that the witnesses were being threatened or coerced. The public prosecutor did not
take any step to protect the star witness who was to be examined on 17.5.2003 especially when
four out of seven injured witnesses had on 9.5.2003 resiled from the statements made during
investigation. Zahira Sheikh – the Star witness had specifically stated on affidavit about the
threat given to her and the reason for her not coming out with the truth during her examination
before Court on 17.5.2003.
7. The public prosecutor was not acting in a manner befitting the position
held by him. He even did not request the Trial court for holding the trial in camera
when a large number of witnesses were resiling from the statements made during
investigation.
8. The trial court should have exercised power under section 311 of the
Code and recalled and re-examined witnesses as their evidence was essential to
arrive at the truth and a just decision in the case. The power under Section 165 of
the Indian Evidence Act, 1872 (in short the ‘Evidence Act’) was not resorted to at
all and that also had led to miscarriage of justice.
9. The public prosecutor did not examine the injured witnesses. Exhibit
36/68 was produced by the public prosecutor which is a statement of one Rahish
Khan on the commencement of the prosecution case, though the prosecution was
neither relying on it nor it was called upon by the accused, to be produced before
the Court. The said statement was wrongly allowed to be exhibited and treated as
FIR by the public prosecutor.
10. x x x x x x x x x
21. Section 391 of the Code is intended to sub-serve the ends of justice by arriving at
the truth and there is no question of filling of any lacuna in the case on hand. The
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provision though a discretionary one is hedged with the condition about the
requirement to record reasons. All these aspects have been lost sight of and the
judgment, therefore, is indefensible. It was submitted that this is a fit case where
the prayer for retrial as a sequel to acceptance of additional evidence should be
directed. Though, the re-trial is not the only result flowing from acceptance of
additional evidence, in view of the peculiar circumstances of the case, the proper
course would be to direct acceptance of additional evidence and in the fitness of
things also order for a re-trial on the basis of the additional evidence.
x x x x x x x x x x x
29. 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 operating principles for a fair trial permeate the common
law in both civil and criminal contexts. Application of these principles involve 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.
30. 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 discovery and vindication and establishment of truth are main purposes certainly of
the existence of Courts of Justice; still, for the obtaining of these objects, which, however
valuable and important, cannot be usefully pursued without moderation, cannot be either
usefully or creditably pursued unfairly or gained by unfair means, not every channel is or
ought to be open to them. The practical inefficacy of torture is not, I suppose, the most
weighty objection to that mode of examination.. Truth, like all other good things, may be
loved unwisely – may be pursued too keenly – may cost too much.
The Vice-Chancellor went on to refer to paying “too great a price… for truth”. This is a
formulation 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 prevailing community standards.”
31. Restraints on the processes for determining the truth are multi-faceted. 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 principle
afterwards … It is only after a series of determination on the same subject-matter, that it
becomes necessary to “reconcile the cases”, as it s 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
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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.
32. 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 and 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.
33. As will presently appear, the principle of a fair trial manifests itself in virtually
every aspect of our practice and procedure, including the laws 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 content 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.
34. 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, crimes being public
wrongs in breach and violation of public rights and duties, which affect the whole
community as a community and harmful to the society in general. The concept of
fair trial entails familiar triangulation of interests of the accused, the victim and the
society and it is the community that acts through the State and prosecuting
agencies. Interests of society is not to be treated completely with disdain and as
persona non grata. Courts have always been considered to have an over-riding duty
to maintain public confidence in the administration of justice – often referred to as
the duty to vindicate and uphold the ‘majesty of the law’. Due administration of
justice has always been viewed as a continuous process, not confined to
determination of the particular case, protecting its ability to function as a Court of
law in the future as in the case before it. If a criminal Court is to be an effective
instrument in dispensing justice, the Presiding 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. 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.
35. 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 truth has to be fair to all concerned. There can be
no analytical, all comprehensive or exhaustive definition of the concept of a fair
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trial, and it may have to be determined in seemingly infinite 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 Nelson’s eyes to the
needs of the 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
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.
36. While dealing with the claims for the transfer of a case under Section 406 of the
Code from one State to another this Court in Mrs. Maneka Sanjay Gandhi and
Anr. v. Ms. Rani Jethmalani [1979 (4) SCC 167] emphasised the necessity to
ensure fair trial, observing as hereunder:
2. Assurance of a fair trial is the first imperative of the dispensation of justice and the
central criterion for the court to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or easy availability of legal services or
like mini-grievances. Something more substantial, more compelling, more imperilling,
from the point of view of public justice and its attendant environment, is necessitous if the
Court is to exercise its power of transfer. This is the cardinal principle although the
circumstances may be myriad and vary from case to case. We have to test the petitioner’s
grounds on this touchstone bearing in mind the rule that normally the complainant has the
right to choose any court having jurisdiction and the accused cannot dictate where the case
against him should be tried. Even so, the process of justice should not harass the parties
and from that angle the court may weigh the circumstances.
5. A more serious ground which disturbs us in more ways than one is the alleged absence
of congenial atmosphere for a fair and impartial trial. It is becoming a frequent
phenomenon in our country that court proceedings are being disturbed by rude hoodlums
and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with
menaces, noises and worse. This tendency of toughs and street roughs to violate the
serenity of court is obstructive of the course of justice and must surely be stamped out.
Likewise, the safety of the person of an accused or complainant is an essential condition
for participation in a trial and where that is put in peril by commotion, tumult or threat on
account of pathological conditions prevalent in a particular venue, the request for a transfer
may not be dismissed summarily. It causes disquiet and concern to a court of justice if a
person seeking justice is unable to appear, present one’s case, bring one’s witnesses or
adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which
conduce to comparative tranquility at the trial. Turbulent conditions putting the accused’s
life in danger or creating chaos inside the court hall may jettison public justice. If this vice
is peculiar to a particular place and is persistent the transfer of the case from that place may
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become necessary. Likewise, if there is general consternation or atmosphere of tension or
raging masses of people in the entire region taking sides and polluting the climate, vitiating
the necessary neutrality to hold detached judicial trial, the situation may be said to have
deteriorated to such an extent as to warrant transfer. In a decision cited by the counsel for
the petitioner, Bose, J., observed :
…. But we do feel that good grounds for transfer from Jashpurnagar are made out because
of the bitterness of local communal feeling and the tenseness of the atmosphere there.
Public confidence in the fairness of a trial held in such an atmosphere would be seriously
undermined, particularly among reasonable Christians all over India not because the Judge
was unfair or biased but because the machinery of justice is not geared to work in the midst
of such conditions. The calm detached atmosphere of a fair and impartial judicial trial
would be wanting, and even if justice were done it would not be “seen to be done”. (G. X.
Francis v. Banke Behari Singh, AIR 1958 SC 309).
6. Accepting this perspective we must approach the facts of the present case without
excitement, exaggeration or eclipse of a sense of proportion. It may be true that the
petitioner attracts a crowd in Bombay. Indeed, it is true of many controversial figures in
public life that their presence in a public place gathers partisans for and against, leading to
cries and catcalls or ‘jais’ or ‘zindabads’. Nor is it unnatural that some persons may have
acquired, for a time a certain quality of reputation, sometimes notoriety, sometimes glory,
which may make them the cynosure of popular attention when they appear in cities even
in a court. And when unkempt crowds press into a court hall it is possible that some
pushing, some nudging, some brash ogling or angry staring may occur in the rough and
tumble resulting in ruffled feelings for the victim. This is a far cry from saying that the
peace inside the court has broken down, that calm inside the court is beyond restoration,
that a tranquil atmosphere for holding the trial is beyond accomplishment or that
operational freedom for judge, parties, advocates and witnesses has creased to exist. None
of the allegations made by the petitioner, read in the pragmatic light of the counteraverments of the respondent and understood realistically, makes the contention of the
counsel credible that a fair trial is impossible. Perhaps, there was some rough weather but
it subsided, and it was a storm in the tea cup or transient tension to exaggerate which is
unwarranted. The petitioner’s case of great insecurity or molestation to the point of threat
to life is, so far as the record bears out, difficult to accept. The mere word of an interested
party is insufficient to convince us that she is in jeopardy or the court may not be able to
conduct the case under conditions of detachment, neutrality or uninterrupted progress. We
are disinclined to stampede ourselves into conceding a transfer of the case on this score, as
things stand now.
7. Nevertheless, we cannot view with unconcern the potentiality of a flare up and the
challenge to a fair trial, in the sense of a satisfactory participation by the accused in the
proceedings against her. Mob action may throw out of gear the wheels of the judicial
process. Engineered fury may paralyse a party’s ability to present his case or participate in
the trial. If the justice system grinds to a halt through physical manoeuvres or sound and
fury of the senseless populace the rule of law runs aground. Even the most hated human
anathema has a right to be heard without the rage of ruffians or huff of toughs being turned
against him to unnerve him as party or witness or advocate. Physical violence to a party,
actual or imminent, is reprehensible when he seeks justice before a tribunal. Manageable
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solutions must not sweep this Court off its feet into granting an easy transfer but
uncontrollable or perilous deterioration will surely persuade us to shift the venue. It
depends. The frequency of mobbing manoeuvres in court precincts is a bad omen for social
justice in its wider connotation. We, therefore, think it necessary to make a few cautionary
observations which will be sufficient, as we see at present, to protect the petitioner and
ensure for her a 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 issue as 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 guilty. The proof of charge which has to be
beyond reasonable doubt must depend upon judicial evaluation of the totality of
the evidence, oral and circumstantial and not by an isolated scrutiny.
38. Failure to accord fair hearing either to the accused or the prosecution violates even
minimum standards of due process of law. It is inherent in the concept of due
process of law, that condemnation should be rendered only after the trial in which
the hearing is a real one, not sham or a mere farce and pretence. Since the fair
hearing requires an opportunity to preserve the process, it may be vitiated and
violated by an overhasty stage-managed, tailored and partisan trial.
39. The fair trial for a criminal offence consists not 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 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 ingenuously adopted to smoother and stifle
truth and realities coming out to surface 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 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
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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 mockery. The State has a definite role to play in protecting
the witnesses, to start with at least in sensitive cases involving those in power, who
has 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 Court the witness could safely depose
truth without any fear of being haunted by those against whom he has deposed.
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 dangerous criminals-terrorists. In a milder
form also the reluctance and the hesitation of witnesses to depose against people
with muscle power, money power or political power has become the order of the
day. If ultimately 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 Courts mere mock trials as are usually seen in
movies.
41. Legislative measures to emphasise prohibition against tampering with witness,
victim or informant have become the imminent 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, the 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 interests of the individual accused. In this courts have a vital
role to play.
42. The Courts have to take a participatory role in a trial. They are not expected to be
tape recorders to record whatever is being stated by the witnesses. Section 311 of
the Code and Section 165 of the Evidence Act confer vast and wide powers on
Presiding Officers of Court to elicit all necessary materials by playing an active
role in the evidence collecting process. They have to monitor the proceedings in
aid of justice in a manner that something, which is not relevant, is not unnecessarily
brought into record. Even if the prosecutor is remiss in some ways, it can control
the proceedings effectively so that ultimate objective i.e. truth is arrived at. This
becomes more necessary where the Court has reasons to believe that the
prosecuting agency or the prosecutor is not acting in the requisite manner. The
Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious
to such serious pitfalls or dereliction of duty on the part of the prosecuting agency.
The prosecutor who does not act fairly and acts more like a counsel for the defence
is a liability to the fair judicial system, and Courts could not also play into the hands
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of such prosecuting agency showing indifference or adopting an attitude of total
aloofness.
43. The power of the Court under Section 165 of the Evidence Act is in a way
complementary to its power under Section 311 of the Code. The section consists
of two parts i.e (i) giving a discretion to the Court to examine the witness at any
stage and (ii) the mandatory portion which compels the Court to examine a witness
if his evidence appears to be essential to the just decision of the Court. Though the
discretion given to the Court is very wide, the very width requires a corresponding
caution. In Mohan Lal v. Union of India [1991 Supp (1) SCC 271] this Court has
observed, while considering the scope and ambit of Section 311, that the very usage
of the word such as, ‘any Court’ ‘at any stage’, or ‘any enquiry or trial or other
proceedings’ ‘any person’ and ‘any such person’ clearly spells out that the Section
has expressed in the widest possible terms and do not limit the discretion of the
Court in any way. However, as noted above, the very width requires a
corresponding caution that the discretionary powers should be invoked as the
exigencies of justice require and exercised judicially with circumspection and
consistently with the provisions of the Code. The second part of the section does
not allow any discretion but obligates and binds the Court to take necessary steps
if the fresh evidence to be obtained is essential to the just decision of the case –
‘essential’, to an active and alert mind and not to one which is bent to abandon or
abdicate. Object of the Section is to enable the Court to arrive at the truth
irrespective of the fact that the prosecution or the defence has failed to produce
some evidence which is necessary for a just and proper disposal of the case. The
power is exercised and the evidence is examined neither to help the prosecution
nor the defence, if the Court feels that here is necessity to act in terms of Section
311 but only to subserve the cause of justice and public interest. It is done with an
object of getting the evidence in aid of a just decision and to uphold the truth.
44. It is not that in every case where the witness who had given evidence before Court
wants to change his mind and is prepared to speak differently, that the Court
concerned should readily accede to such request by lending its assistance. If the
witness who deposed one way earlier comes before the appellate Court with a
prayer that he is prepared to give evidence which is materially different from what
he has given earlier at the trial with the reasons for the earlier lapse, the Court can
consider the genuineness of the prayer in the context as to whether the party
concerned had a fair opportunity to speak the truth earlier and in an appropriate
case accept it. It is not that the power is to be exercised in a routine manner, but
being an exception to the ordinary rule of disposal of appeal on the basis of records
received in exceptional cases or extraordinary situation the Court can neither feel
powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice.
The Court can certainly be guided by the metaphor, separate the grain from the
chaff, and in a case which has telltale imprint of reasonableness and genuineness
in the prayer, the same has to be accepted, at least to consider the worth, credibility
and the acceptability of the same on merits of the material sought to be brought in.
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45. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth
and subserve the ends of justice. Section 311 of the Code does not confer any party
any right to examine, cross-examine and re-examine any witness. This is a power
given to the Court not to be merely exercised at the bidding of any one party/person
but the powers conferred and discretion vested are to prevent any irretrievable or
immeasurable damage to the cause of society, public interest and miscarriage of
justice. Recourse may be had by Courts to power under this section only for the
purpose of discovering relevant facts or obtaining proper proof of such facts as are
necessary to arrive at a just decision in the case.
46. Section 391 of the Code is another salutary provision which clothes the Courts with
the power to effectively decide an appeal. Though Section 386 envisages the
normal and ordinary manner and method of disposal of an appeal, yet it does not
and cannot be said to exhaustively enumerate the modes by which alone the Court
can deal with an appeal. Section 391 is one such exception to the ordinary rule and
if the appellate Court considers additional evidence to be necessary, the provisions
in Section 386 and Section 391 have to be harmoniously considered to enable the
appeal to be considered and disposed of also in the light of the additional evidence
as well. For this purpose it is open to the appellate Court to call for further evidence
before the appeal is disposed of. The appellate Court can direct the taking up of
further evidence in support of the prosecution; a fortiori it is open to the Court to
direct that the accused persons may also be given a chance of adducing further
evidence. Section 391 is in the nature of an exception to the general rule and the
powers under it must also be exercised with great care, especially on behalf of the
prosecution lest the admission of additional evidence for the prosecution operates
in a manner prejudicial to the defence of the accused. The primary object of Section
391 is the prevention of guilty man’s escape through some careless or ignorant
proceedings before a Court or vindication of an innocent person wrongfully
accused. Where the Court through some carelessness or ignorance has omitted to
record the circumstances essential to elucidation of truth, the exercise of powers
under Section 391 is desirable.
47. The legislative intent in enacting Section 391 appears to be the empowerment of
the appellate court to see that justice is done between the prosecutor and the persons
prosecuted and if the appellate Court finds that certain evidence is necessary in
order to enable it to give a correct and proper findings, it would be justified in
taking action under Section 391.
48. There is no restriction in the wording of Section 391 either as to the nature of the
evidence or that it is to be taken for the prosecution only or that the provisions of
the Section are only to be invoked when formal proof for the prosecution is
necessary. If the appellate Court thinks that it is necessary in the interest of justice
to take additional evidence it shall do so. There is nothing in the provision limiting
it to cases where there has been merely some formal defect. The matter is one of
the discretion of the appellate Court. As re-iterated supra the ends of justice are not
satisfied only when the accused in a criminal case is acquitted. The community
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acting through the State and the public prosecutor is also entitled to justice. The
cause of the community deserves equal treatment at the hands of the Court in the
discharge of its judicial functions.
49. In Rambhau v. State of Maharashtra [2001 (4) SCC 759] it was held that the
object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. The
Court has to keep these salutary principle in view. Though wide discretion is
conferred on the Court, the same has to be exercised judicially and the Legislature
had put the safety valve by requiring recording of reasons.
50. Need for circumspection was dealt with by this Court in Mohanlal Shamji Soni’s
case (supra) and Ram Chander v. State of Haryana [1981 (3) SCC 191]which
dealt with the corresponding Section 540 of Code of Criminal Procedure, 1898 (in
short the ‘Old Code’) and also in Jamatraj’s case. While dealing with Section 311
this Court in Rajendra Prasad v. Narcotic Cell through Its officer in Charge,
Delhi [1999 (6) SCC 110] held as follows:
7. It is a common experience in criminal courts that defence counsel would raise objections
whenever courts exercise powers under Section 311 of the Code or under Section 165 of
the Evidence Act, 1872 by saying that the court could not “fill the lacuna in the prosecution
case”. A lacuna in the prosecution is not to be equated with the fallout of an oversight
committed by a Public Prosecutor during trial, either in producing relevant materials or in
eliciting relevant answers from witnesses. The adage “to err is human” is the recognition
of the possibility of making mistakes to which humans are prone. A corollary of any such
laches or mistakes during the conducting of a case cannot be understood as a lacuna which
a court cannot fill up.
8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge
in the matrix of the prosecution case. The advantage of it should normally go to the accused
in the trial of the case, but an oversight in the management of the prosecution cannot be
treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors.
If proper evidence was not adduced or a relevant material was not brought on record due
to any inadvertence, the court should be magnanimous in permitting such mistakes to be
rectified. After all, function of the criminal court is administration of criminal justice and
not to count errors committed by the parties or to find out and declare who among the
parties performed better.
51. Whether a retrial under Section 386 or taking up of additional evidence under
Section 391 is the proper procedure will depend on the facts and circumstances of
each case for which no straight-jacket formula of universal and invariable
application can be formulated.
52. In the ultimate analysis whether it is a case covered by Section 386 or Section 391
of the Code the underlying object which the Court must keep in view is the very
reasons for which the Courts exist i.e. to find out the truth and dispense justice
impartially and ensure also that the very process of Courts are not employed or
utilized in a manner which give room to unfairness or lend themselves to be used
as instruments of oppression and injustice.
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53. Though justice is depicted to be blind-folded, as popularly said, it is only a veil not
to see who the party before it is while pronouncing judgment on the cause brought
before it by enforcing law and administer justice and not to ignore or turn the
mind/attention of the Court away from the truth of the cause or lis before it, in
disregard of its duty to prevent miscarriage of justice. When an ordinary citizen
makes a grievance against the mighty administration, any indifference, inaction or
lethargy shown in protecting his right guaranteed in law will tend to paralyse by
such inaction or lethargic action of Courts and erode in stages faith inbuilt in
judicial system ultimately destroying the very justice delivery system of the
country itself. Doing justice is the paramount consideration and that duty cannot
be abdicated or diluted and diverted by manipulative red herrings.
x x x x x x x x x x x
67. If one even cursorily glances through the records of the case, one gets a feeling that
the justice delivery system was being taken for a ride and literally allowed to be
abused, misused and mutilated by subterfuge. The investigation appears to be
perfunctory and anything but impartial without any definite object of finding out
the truth and bringing to book those who were responsible for the crime. The public
prosecutor appears to have acted more as a defence counsel than one whose duty
was to present the truth before the Court. The Court in turn appeared to be a silent
spectator, mute to the manipulations and preferred to be indifferent to sacrilege
being committed to justice. The role of the State Government also leaves much to
be desired. One gets a feeling that there was really no seriousness in the State’s
approach in assailing the Trial Court’s judgment. This is clearly indicated by the
fact that the first memorandum of appeal filed was an apology for the grounds. A
second amendment was done, that too after this Court expressed its unhappiness
over the perfunctory manner in which the appeal was presented and challenge
made. That also was not the end of the matter. There was a subsequent petition for
amendment. All this sadly reflects on the quality of determination exhibited by the
State and the nature of seriousness shown to pursue the appeal. Criminal trials
should not be reduced to be the mock trials or shadow boxing or fixed trials.
Judicial Criminal Administration System must be kept clean and beyond the reach
of whimsical political wills or agendas and properly insulated from discriminatory
standards or yardsticks of the type prohibited by the mandate of the Constitution.
68. Those who are responsible for protecting life and properties and ensuring that
investigation is fair and proper seem to have shown no real anxiety. Large number
of people had lost their lives. Whether the accused persons were really assailants
or not could have been established by a fair and impartial investigation. The
modern day ‘Neros’ were looking elsewhere when Best Bakery and innocent
children and helpless women were burning, and were probably deliberating how
the perpetrators of the crime can be saved or protected. Law and justice become
flies in the hands of these “wanton boys”. When fences start to swallow the crops,
no scope will be left for survival of law and order or truth and justice. Public order,
as well as public interest, become martyrs and monuments.
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69. In the background of principles underlying Section 311 and Section 391 of the
Code and Section 165 of the Evidence Act it has to be seen as to whether the High
Court’s approach is correct and whether it had acted justly, reasonably and fairly in
placing premiums on the serious lapses of grave magnitude by the prosecuting
agencies and the Trial Court, as well. There are several infirmities which are telltale even to the naked eye of even an ordinary common man. The High Court has
come to a definite conclusion that the investigation carried out by the police was
dishonest and faulty. That was and should have been per se sufficient justification
to direct a re-trial of the case. There was no reason for the High Court to come to
the further conclusion of its own about false implication without concrete basis and
that too merely on conjectures. On the other hand, the possibility of the
investigating agency trying to shield the accused persons keeping in view the
methodology adopted and outturn of events can equally be not ruled out. When the
investigation is dishonest and faulty, it cannot be only with the purpose of false
implication. It may also be noted at this stage that the High Court has even gone to
the extent of holding that the FIR was manipulated. There was no basis for such a
presumptive remark or arbitrary conclusion.
70. The High Court has come to a conclusion that Zahira seems to have unfortunately
for some reasons after the pronouncement of the judgment fallen into the hands of
some who prefer to remain behind the curtain to come out with the affidavit
alleging threat during trial. It has rejected the application for adducing additional
evidence on the basis of the affidavit, but has found fault with the affidavit and
hastened to conclude unjustifiably that they are far from truth by condemning those
who were obviously victims. The question whether they were worthy of credence,
and whether the subsequent stand of the witnesses was correct needed to be
assessed, and adjudged judiciously on objective standards which are the hallmark
of a judicial pronouncement. Such observations if at all could have been only made
after accepting the prayer for additional evidence. The disclosed purpose in the
State Government’s prayer with reference to the affidavits was to bring to High
Court’s notice the situation which prevailed during trial and the reasons as to why
the witnesses gave the version as noted by the Trial Court. Whether the witness
had told the truth before the Trial Court or as stated in the affidavit, were matters
for assessment of evidence when admitted and tendered and when the affidavit
itself was not tendered as evidence, the question of analysing it to find fault was
not the proper course to be adopted. The affidavits were filed to emphasise the need
for permitting additional evidence to be taken and for being considered as the
evidence itself. The High Court has also found that some persons were not present
and, therefore, question of their statement being recorded by the police did not
arise. For coming to this conclusion, the High Court noted that the statements under
Section 161 of the Code were recorded in Gujarati language though the witnesses
did not know Gujarati. The reasoning is erroneous for more reasons than one. There
was no material before the High Court for coming to a finding that the persons did
not know Gujarati since there may be a person who could converse fluently in a
language though not a literate to read and write. Additionally, it is not a requirement
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in law that the statement under Section 161 of the Code has to be recorded in the
language known to the person giving the statement. As a matter of fact, the person
giving the statement is not required to sign the statement as is mandated in Section
162 of the Code. Sub-section (1) of Section 161 of the Code provides that the
competent police officer may examine orally any person supposed to be acquainted
with the facts and circumstances of the case. Requirement is the examination by
the concerned police officer. Sub-section (3) is relevant, and it requires the police
officer to reduce into writing any statement made to him in the course of an
examination under this Section; and if he does so, he shall make a separate and true
record of the statement of each such person whose statement he records. Statement
made by a witness to the police officer during investigation may be reduced to
writing. It is not obligatory on the part of the police officer to record any statement
made to him. He may do so if he feels it necessary. What is enjoined by the Section
is a truthful disclosure by the person who is examined. In the above circumstance
the conclusion of the High Court holding that the persons were not present is
untenable. The reasons indicated by the High Court to justify non-examination of
the eye-witnesses is also not sustainable. In respect of one it has been said that
whereabouts of the witness may not be known. There is nothing on record to show
that the efforts were made by the prosecution to produce the witness for tendering
evidence and yet the net result was ‘untraceable’. In other words, the evidence
which should have been brought before the Court was not done with any
meticulous care or seriousness. 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. In Shailendra Kumar v. State of
Bihar [(2002)1 SCC 655] it was observed as under:
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9. In our view, in a murder trial it is sordid and repulsive matter that without informing the
police station officer-in-charge, the matters are proceeded by the court and by the APP and
tried to be disposed of as if the prosecution has not led any evidence. From the facts stated
above, it appears that accused wants to frustrate the prosecution by unjustified means and
it appears that by one way or the other the Addl. Sessions Judge as well as the APP have
not taken any interest in discharge of their duties. It was the duty of the sessions judge to
issue summons to the investigating officer if he failed to remain present at the time of trial
of the case. The presence of investigating officer at the time of trial is must. It is his duty
to keep the witnesses present. If there is failure on part of any witness to remain present, it
is the duty of the court to take appropriate action including issuance of bailable/nonbailable warrants as the case may be. It should be well understood that prosecution can not
be frustrated by such methods and victims of the crime cannot be left in lurch.
72. A somewhat an unusual mode in contrast to the lapse committed by non-examining
victims and injured witnesses adopted by the investigating agency and the prosecutor was
examination of six relatives of accused persons. They have expectedly given a clean chit to the
accused and labeled them as saviors. This unusual procedure was highlighted before the High
Court. But the same was not considered relevant as there is no legal bar. When we asked Mr.
Rohtagi, learned counsel for the State of Gujarat as to whether this does not reflect badly on the
conduct of investigating agency and the prosecutor, he submitted that this was done to show
the manner in which the incident had happened. This is a strange answer. Witnesses are
examined by prosecution to show primarily who is the accused. In this case it was nobody’s
stand that the incident did not take place. That the conduct of investigating agency and the
prosecutor was not bona fide, is apparent and patent.
73.So far as non-examination of some injured relatives are concerned, the High Court has
held that in the absence of any medical report, it appears that they were not present and,
therefore, held that the prosecutor might have decided not to examine Yasminbanu because
there was no injury. This is nothing but a wishful conclusion based on presumption. It is true
that merely because the affidavit has been filed stating that the witnesses were threatened, as a
matter of routine, additional evidence should not be permitted. But when the circumstances as
in this case clearly indicate that there is some truth or prima facie substance in the grievance
made, having regard to background of events as happened the appropriate course for the Courts
would be to admit additional evidence for final adjudication so that the acceptability or
otherwise of evidence tendered by way of additional evidence can be tested properly and legally
tested in the context of probative value of the two versions. There cannot be straight-jacket
formula or rule of universal application when alone it can be done and when, not. As the
provisions under Section 391 of the Code are by way of an exception, the Court has to carefully
consider the need for and desirability to accept additional evidence. 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
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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.
74. Prayer was made by learned counsel for the appellant that the trial should be conducted
outside the State so that the unhealthy atmosphere which led to failure of miscarriage of justice
is not repeated. This prayer has to be considered in the background and keeping in view the
spirit of Section 406 of the Code. It is one of the salutory principles of the administration of
justice that justice should not only be done but it should be seen to be done. However, a mere
allegation that there is apprehension that justice will not be done in a given case or that general
allegations of a surcharged atmosphere against a particular community alone does not suffice.
The Court has to see whether the apprehension is reasonable or not. The state of mind of the
person who entertains apprehension, no doubt is a relevant factor but not the only determinative
or concluding factor. But the Court must be fully satisfied about the existence of such conditions
which would render inevitably impossible the holding of a fair and impartial trial, uninfluenced
by extraneous considerations that may ultimately undermine the confidence of reasonable and
right thinking citizen, in the justice delivery system. The apprehension must appear to the Court
to be a reasonable one. This position has been highlighted in Gurcharan Das Chadha v. State
of Rajasthan [1966 (2) SCR 678] and K. Ambazhagan v. The Superintendent of Police
[(2004)3 SCC 767].
75. Keeping in view the peculiar circumstances of the case, and the ample evidence on
record, glaringly demonstrating subversion of justice delivery system with no congeal and
conducive atmosphere still prevailing, we direct that the re-trial shall be done by a Court under
the jurisdiction of Bombay High Court. The Chief Justice of the said High Court is requested
to fix up a Court of Competent jurisdiction.
76. We direct the State Government to appoint another Public Prosecutor and it shall be
open to the affected persons to suggest any name which may also be taken into account in the
decision to so appoint. Though the witnesses or the victims do not have any choice in the normal
course to have a say in the matter of appointment of a Public Prosecutor, in view of the unusual
factors noticed in this case, to accord such liberties to the complainants party, would be
appropriate.
77. The fees and all other expenses of the public prosecutor who shall be entitled to
assistance of one lawyer of his choice shall initially be paid by the State of Maharashtra, who
will thereafter be entitled to get the same reimbursed from the State of Gujarat. The State of
Gujarat shall ensure that all the documents and records are forthwith transferred to the Court
nominated by the Chief Justice of the Bombay High Court. The State of Gujarat shall also
ensure that the witnesses are produced before the concerned Court whenever they are required
to attend that Court. Necessary protection shall be afforded to 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. All expenses
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necessary for the trial shall be initially borne by the State of Maharashtra, to be reimbursed by
the State of Gujarat.
78. Since we have directed re-trial it would be desirable to the investigating agency or
those supervising the investigation, to act in terms of Section 173(8) of the Code, as the
circumstances seem to or may so warrant. The Director General of Police, Gujarat is directed
to monitor re-investigation, if any, to be taken up with the urgency and utmost sincerity, as the
circumstances warrant.
79. Sub-section (8) of Section 173 of the Code permits further investigation, and even de
hors any direction from the Court as such, it is open to the police to conduct proper
investigation, even after the Court took cognizance of any offence on the strength of a police
report earlier submitted.
80. Before we part with the case it would be appropriate to note some disturbing factors.
The High Court after hearing the appeal directed its dismissal on 26.12.2003 indicating in the
order that the reasons were to be subsequently given, because the Court was closing for winter
holidays. This course was adopted “due to paucity of time”. We see no perceivable reason for
the hurry. The accused were not in custody. Even if they were in custody, the course adopted
was not permissible. This Court has in several cases deprecated the practice adopted by the
High Court in the present case.
81. About two decades back this Court in State of Punjab v. Jagdev Singh Talwandi
[(1984) 1 SCC 596] had inter alia observed as follows :
30. We would like to take this opportunity to point out that serious difficulties arise on
account of the practice increasingly adopted by the High Courts of pronouncing the final
order without a reasoned judgment. It is desirable that the final order which the High Court
intends to pass should not be announced until a reasoned judgment is ready for
pronouncement. Suppose, for example, that a final order without a reasoned judgment is
announced by the High Court that a house shall be demolished, or that the custody of a
child shall be handed over to one parent as against the other, or that a person accused of a
serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case,
that a detenu be released from detention. If the object of passing such orders is to ensure
speedy compliance with them, that object is more often defeated by the aggrieved party
filing a special leave petition in this Court against the order passed by the High Court. That
places this Court in a predicament because, without the benefit of the reasoning of the High
Court, it is difficult for this Court to allow the bare order to be implemented. The result
inevitably is that the operation of the order passed by the High Court has to be stayed
pending delivery of the reasoned judgment.
82. It may be thought that such orders are passed by this Court and, therefore, there is no
reason why the High Courts should not do the same. We would like to point out that the orders
passed by this Court are final and no further appeal lies against them. The Supreme Court is the
final Court in the hierarchy of our Courts. Orders passed by the High Court are subject to the
appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions
of the concerned statutes. We thought it necessary to make these observations so that a practice
which is not a very desirable one and which achieves no useful purpose may not grow out of
and beyond its present infancy. What is still more baffling is that written arguments of the State
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were filed on 29.12.2003 and by the accused persons on 1.1.2004. A grievance is made that
when the petitioner in Criminal Revision No.583 of 2003 wanted to file notes of arguments that
were not accepted making a departure from the cases of the State and the accused. If the written
arguments were to be on record, it is not known as to why the High Court dismissed the appeal.
If it had already arrived at a particular view there was no question of filing written arguments.
83. The High Court appears to have miserably failed to maintain the required judicial
balance and sobriety in making unwarranted references to personalities and their legitimate
moves before competent courts – the highest court of the nation, despite knowing fully well that
it could not deal with such aspects or matters. Irresponsible allegations, suggestions and
challenges may be made by parties, though not permissible or pursued defiantly during course
of arguments at times with the blessings or veiled support of the Presiding Officers of Court.
But, such besmirching tacts, meant as innuendos or serve as surrogacy ought not to be made or
allowed to be made, to become part of solemn judgments, of at any rate by High Courts, which
are created as Court of record as well. Decency, decorum and judicial discipline should never
be made casualties by adopting such intemperate attitudes of judicial obstinacy. The High Court
also made some observations and remarks about persons/constitutional bodies like NHRC who
were not before it. We had an occasion to deal with this aspect to certain extent in the appeal
relating to SLP (Crl.) Nos. 530-532/2004. The move adopted and manner of references made,
in para no. 3 of the judgment except the last limb (sub-para) is not in good taste or decorous. It
may be noted that certain reference is made therein or grievances purportedly made before the
High Court about role of NHRC. When we asked Mr. Sushil Kumar who purportedly made the
submissions before the High Court, during the course of hearing, he stated that he had not made
any such submission as reflected in the judgment. This is certainly intriguing. Proceedings of
the court normally reflect the true state of affairs. Even if it is accepted that any such submission
was made, it was not proper or necessary for the High Court to refer to them in the judgment,
to finally state that no serious note was taken of the submissions. Avoidance of such
manoeuvres would have augured well with the judicial discipline. We order the expunging and
deletion of the contents of para 3 of the judgment except the last limb of the sub-para therein
and it shall be always read to have not formed part of the judgment.
84. A plea which was emphasised by Mr. Tulsi relates to the desirability of restraint in
publication/exhibition of details relating to sensitive cases, more particularly description of
alleged accused persons in the print/electronic/broadcast medias. According to him, “media
trial” causes indelible prejudice to the accused persons. This is sensitive and complex issue,
which we do not think it proper to deal in detail in these appeals. The same may be left open
for an appropriate case where the media is also duly and effectively represented.
85. If the accused persons were not on bail at the time of conclusion of the trial, they shall
go back to custody, if on the other hand they were on bail that order shall continue unless
modified by the concerned Court. Since we are directing a re-trial, it would be appropriate if
same is taken up on day-to-day basis keeping in view the mandate of Section 309 of the Code
and completed by the end of December 2004.
86. The appeals are allowed on the terms and to the extent indicated above.
