# ZAHIRA HABIBULLA H SHEIKH AND ANR. ~__ v. STATE OF GUJARAT AND ORS

- **Citation:** [2004] 3 S.C.R. 1050
- **Court:** Supreme Court of India
- **Decided:** 2004-04-12
- **Case number:** Criminal Appeal Nos. 446449 of 2004
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/zahira-habibulla-h-sheikh-and-anr-v-state-of-gujarat-and-ors-19819
- **Pages:** 50

## Headnote

A
ZAH!RA HABIBULLA H SHEIKH AND ANR.
~__,
v.
STATE OF GUJARAT AND ORS.
APRIL 12, 2004
B
[DORAISWAMY RAJU AND AR!llT PASAYAT, 11.]
Code of Criminal Procedure, 1973-Seclion 311, 391, 386 and 173:
t
Evidence Act, 1872-Section 165:
c
Criminal trial-Tainted investigation-Trial in perjimctory mannerOn account of threat from politicians witnesses turned hostile-Acquilla/ of
accused-Application for adducing additional evidence and examination of
witnesses rejected and acquiltal confirmed by High Court-On appeal, held:
D The case liable lo be retried-Trial was no/ fair as hearing of material witness
was denied-In a case of defective investigation the Court in evaluating the
evidence may adopt an active and analytical role to ensure finding of truth
,,
having recourse to Sections 311 Cr.P.C. and 165 Evidence Act at later stage
•
resorting to Section 391 Cr.P.C.-Retrial by a Court under jurisdiction of
another High Court-Appointment of some other Public Prosecutor-Further
E investigation-Directions issued
Sections 386 and 391-Adducing additional evidence at appellate stagePermissibility-Held: Such course is permissible-Section 391 is an exception
lo Section 386-These Sections have to be harmoniously considered-Recourse
F
to either of the Sections in disposing of the appeal would depend on the facts
of the case.
~
Criminal trial-Role of Court in evidence-collecting process-Held:
Courts should take a participa/OJy role in trial and should not act as a mere
tape recorder.
G
Practice and Procedure:
Order of High Court-Order passed indicating that reasons to follow
f"
subsequently-Permissibility of-Held: Such course is not permissible by High
Court because its order is subject to appellate jurisdiction of Supreme Court.
H
1050
..
•
Z.H.H. SHEIKH v. STATE OF GUJARAT
1051
Words and Phrases:
A
"Criminal trial", "Fair. tria/"-Meaning of
Respondents-Accused were alleged to be part of unruly mob who
burnt down a business concern. The incident resulted in death of 14
persons. Appellant and many other persons were eye-witnesses to the B
incident. During trial, the purported eye-witnesses resiled from their
statements made during investigation. Trial Court acquitted the accused
persons. Thereafter appellant-witness filed affidavits and made statements
before Human Rights Commission alleging that during trial she was forced
by politicians to depose falsely and she turned hostile on account of threats C
by them. State filed appeal before High Court against the acquittal order.
Sister of appellant-witness filed revision petition before High Court against
the acquittal order. State filed an application before High Court for
permission to adduce additional evidence u/s 391 Cr.P.C. and for
examination of witnesses u/s 311 Cr.P.C. They also filed application for
bringing on record a document and to treat it as corroborative evidence. D
High Court dismissed the appeal, revision petition and the applications .
High Court observed that the consideration of the appeal, has to be limited
to the records sent up u/s 385 (2) Cr.P.C. for disposal of the appeal u/s
386 Cr.P.C. Refusing to take the affidavits on record, High Court analysed
the same and termed them as untruthful and false. It held that recording E
evidence of some witnesses u/s 161 Cr.P.C. did not arise as those witnesses
did not know Gujarati and the evidence was recorded in Gujarati.
Human Rights Commission filed Special Leave Petition which was
treated as writ petition u/s 32 of the Constitution. Appellant-witness, an
Organisation and the State filed appeals before this Court requesting for F
fresh trial of the case.
Appellants contended that prosecution did not take any steps to
protect the star witness despite her having stated on affidavit that threat
was given to her, that trial Court should have exercised power under
Section 311 Cr.P.C. and Section 165 Evidence Act to arrive at the truth G
11nd just decision in the case; that High Court did not keep in view the
true scope and ambit of Section 39

## Text

_Characters 0–39,797 of 134,030. This is a partial read: ask again with offset=39797 for what follows._

A
ZAH!RA HABIBULLA H SHEIKH AND ANR.
~__,
v.
STATE OF GUJARAT AND ORS.
APRIL 12, 2004
B
[DORAISWAMY RAJU AND AR!llT PASAYAT, 11.]
Code of Criminal Procedure, 1973-Seclion 311, 391, 386 and 173:
t
Evidence Act, 1872-Section 165:
c
Criminal trial-Tainted investigation-Trial in perjimctory mannerOn account of threat from politicians witnesses turned hostile-Acquilla/ of
accused-Application for adducing additional evidence and examination of
witnesses rejected and acquiltal confirmed by High Court-On appeal, held:
D The case liable lo be retried-Trial was no/ fair as hearing of material witness
was denied-In a case of defective investigation the Court in evaluating the
evidence may adopt an active and analytical role to ensure finding of truth
,,
having recourse to Sections 311 Cr.P.C. and 165 Evidence Act at later stage
•
resorting to Section 391 Cr.P.C.-Retrial by a Court under jurisdiction of
another High Court-Appointment of some other Public Prosecutor-Further
E investigation-Directions issued
Sections 386 and 391-Adducing additional evidence at appellate stagePermissibility-Held: Such course is permissible-Section 391 is an exception
lo Section 386-These Sections have to be harmoniously considered-Recourse
F
to either of the Sections in disposing of the appeal would depend on the facts
of the case.
~
Criminal trial-Role of Court in evidence-collecting process-Held:
Courts should take a participa/OJy role in trial and should not act as a mere
tape recorder.
G
Practice and Procedure:
Order of High Court-Order passed indicating that reasons to follow
f"
subsequently-Permissibility of-Held: Such course is not permissible by High
Court because its order is subject to appellate jurisdiction of Supreme Court.
H
1050
..
•
Z.H.H. SHEIKH v. STATE OF GUJARAT
1051
Words and Phrases:
A
"Criminal trial", "Fair. tria/"-Meaning of
Respondents-Accused were alleged to be part of unruly mob who
burnt down a business concern. The incident resulted in death of 14
persons. Appellant and many other persons were eye-witnesses to the B
incident. During trial, the purported eye-witnesses resiled from their
statements made during investigation. Trial Court acquitted the accused
persons. Thereafter appellant-witness filed affidavits and made statements
before Human Rights Commission alleging that during trial she was forced
by politicians to depose falsely and she turned hostile on account of threats C
by them. State filed appeal before High Court against the acquittal order.
Sister of appellant-witness filed revision petition before High Court against
the acquittal order. State filed an application before High Court for
permission to adduce additional evidence u/s 391 Cr.P.C. and for
examination of witnesses u/s 311 Cr.P.C. They also filed application for
bringing on record a document and to treat it as corroborative evidence. D
High Court dismissed the appeal, revision petition and the applications .
High Court observed that the consideration of the appeal, has to be limited
to the records sent up u/s 385 (2) Cr.P.C. for disposal of the appeal u/s
386 Cr.P.C. Refusing to take the affidavits on record, High Court analysed
the same and termed them as untruthful and false. It held that recording E
evidence of some witnesses u/s 161 Cr.P.C. did not arise as those witnesses
did not know Gujarati and the evidence was recorded in Gujarati.
Human Rights Commission filed Special Leave Petition which was
treated as writ petition u/s 32 of the Constitution. Appellant-witness, an
Organisation and the State filed appeals before this Court requesting for F
fresh trial of the case.
Appellants contended that prosecution did not take any steps to
protect the star witness despite her having stated on affidavit that threat
was given to her, that trial Court should have exercised power under
Section 311 Cr.P.C. and Section 165 Evidence Act to arrive at the truth G
11nd just decision in the case; that High Court did not keep in view the
true scope and ambit of Section 391 Cr.P.C.; that many injured eyewitnesses were not examined without disclosing any reason for nonexamination; that the relatives of the accused were examined as witnesses
for the prosecution with a view that their evidence could be used to help
H
1052
SUPREME COURT REPORTS
[2004] 3 S.C.R.
A the accused persons; that one of the witnesses was examined before the
stipulated date; that witnesses were threatened to depose falsely; that
entire effort during trial was to help acquittal of the accused and there
was no fair trial; and that in view of the atmosphere in which the case
was originally tried the retrial should be directed to be outside the State.
B
Allowing the appeals, the Court
HELD: I.I The entire approach of the High Court suffers from
serious infirmities, its conclusions lopsided and lacks proper or judicious
application of mind. Arbitrariness is found writ large on the approach as
C well as the conclusions arrived at in the judgment under challenge, in
unreasonably keeping out relevant evidence from being brought on record.
11088-CI
1.2. Present case is a 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
D is a must and essentiaily called for in order to save and preserve the justice
delivery system unsullied and unscathed by vested interests. 11095-BI
1.3. It should not be understood to have been held that whenever
additional evidence is accepted, re-trial is a necessary corollary. The case
E 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
F direction for re-trial becomes inevitable. 11095-C-DJ
1.4. 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 ~hole
community and harmful to the society in general. The concept of fair
G 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 persons non grate. Courts have always been
considered to have an over-riding duty to maintain public confidence in
H the administration of justice - often referred to as the duty to vindicate
~-
.
I
•
-4
' '
;
~ '
Z.H.H. SHEIKH v. STA TE OF GUJARAT
1053
'--'
and uphold the 'majesty of the law'. Due administration of justice has A
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 present case. 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 B
trial evincing intelligence, eotive 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 C
risk of undermining the fair name and standing of the judges as impartial
and independent adjudicators. (1074-F; 1075-B)
1.5. 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 D
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 by 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 object in mind viz. whether something that E
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 F
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 G
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.
11075-C-FJ
Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani Jethmalani, (1979)
4 sec 167, relied on.
H
l,..l,,..._,
1054
SUPREME COURT REPORTS
[2004] 3 S.C.R.
A
1.6. A criminal trial is a judicial examination of the issues in the
c'- •
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 of innocence of
B 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 about 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
C isolated scrutiny. (1078-D-F]
1.7. 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
D 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. ]1078-F-G]
1.8. "Witnesses" are the eyes and ears of justice. Hence, the
importance and primacy of the quality of trial process. If the witness
E 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
nor in a position for reason beyond control to speak the truth in the Court
or due to negligence or ignorance or some corrupt collusion. Broader
p 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
G complete breakdown and collapse of the edifice of rule of law, enshrined
and jealously guarded and protected by the Constitution. There comes
the need for protecting the witness. The State has 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
H money power, to avert trial getting tainted and derailed and truth
1.f
Z.H.H. SHEIKH v. STATE 01' GUJARAT
JOSS
' -.
becoming a casualty. As a protector of its citizens it has to ensure that A
during a trial in Court the witness could safely depose truth without any
foar of being haunted by those against whom he has deposed.
•
11079-B, D-E, F-G(
1.9. 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 Cr.P.C. and Section 165 of the Evidence Act
B
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 C
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 D
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 of such prosecuting
agency showing indifference or adopting an attitude of total aloofness. If
deficiency in investigation or prosecution is visible or can be perceived by E
lifting the veil trying to hide the realities or covering the obvious
deficiencies, Courts have to deal with the same with an iron hand
appropriately within the framework of law. It is as much the duty of the
prosecutor as of the Court to ensure that full and material facts are
brought on record so that there might not be miscarriage of justice.
11080-D-F; 1085-C-DI F
Shki/a Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr.,
(2003( 7 SCC 749 and Vineet Narian v. Union of India, ( 1998( I SCC 226,
referred to.
Jennison v. Backer, (1972) I All E.R. 1006, referred to.
I.I 0. The power of the Court under Section 165 of the Evidence Act
is in a way complementary to its power under Section 311 Cr.P.C. 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
G
H
1056
SUPREME COURT REPORTS
[2004] 3 S.C.R.
A essential to the just decision of the Court. Though the discretion given to
the Court i~ very wide, the very width requires a corresponding caution.
11080-G-HI
Mohan Lal v. Union of India, 119911 Supp. l SCC 271, relied on.
B
l.l l. Section 391 Cr.P.C. 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
(I
the modes by which alone the Court can deal with an appeal. Section 391
C 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
D 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, specially on behalf of the prosecution
lest the admission of additional evidence for the prosecution operates in a
E 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
•
F elucidation of truth, the exercise of powers under Section 391 is desirable.
Whether a retrial under Section 386 or taking up of additional evidence
,-<~
G
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.
11082-C-G; 1084-Cf
Ran;bhau and Anr. v. State of Maharashtra, 1200114 SCC 759; Mohan/al
Shamji Soni v. Union of India and Anr., [1991 I Supp. l SCC 271; Ram Chander
v. State of Haryana. 1198113 SCC 191; Jamatraj Kewalji Govani v. The State
of Maharashtra, [196713 SCR 415 and Rajendra Prasadv. Narcotic Cell thr.
H Its officer in Charge, Delhi, 1199916 SCC llO, relied on.
J
I
\ . .>..,
Z.H.H. SHEIKH v. STATE OF GUJARAT
1057
1.12. The perception of High Court that the consideration of the A
appeal has to be limited to the records sent up under Section 385(2) of
the Code for disposal of the appeal under Section 386, per se vitiates the
decision rendertd by the High Court. In all cases it cannot be laid down
as a rule of universal application that the Court has to first find out
whether the evidence already on record is sufficient. The nature and
quality of the evidence on record is also relevant. If the evidence already B
on record is shown or found to be tainted, tailored to suit or help a
particular party or side and the real truth has not and could not have been
spoken or brought forth during trial, it would constitute mereiy an exercise
in futility, if it considered first whether the evidence already on record is
sufficient to dispose of the appeals. Disposal of appeal does not mean C
disposal for statistical purposes but effective and real disposal to achieve
the object of any trial. The exercise has to be taken up together. It is not
that the Court has to be satisfied that the additional evidence would be
necessary for rendering a verdict different from what was rendered by
the trial Court. In a given case even after assessing the additional evidence,
the High Court can maintain the verdict of the trial Court and similarly D
the High Court on consideration of the additional evidence can upset the
trial Court's verdict. It all depends upon the relevance and acceptability
of the additional evidence and its qualitative worth in deciding the guil$-
or innocence of the accused. (1086-B-G(
1.13. Merely because the High Court permits additional evidence to
be adduced, it does not necessarily lead to the conclusion that the judgment
of the trial Court was wrong. The High Court did not accept the additional
evidence. But at the same time made threadbare analysis of the affidavits
E
as if it had accepted it as additional evidence and was testing its
acceptability. Even the conclusions arrived at with reference to those F
affidavits do not appear to be correct and seem to suffer from apparent
judicial obstinacy and avowed determination to reject it. The question of
admission of evidence initially or as additional evidence under Section 391
is distinct from the efficacy, reliability and its acceptability for
consideration of claims in the appeal on merits. It is only after admission, G
the Court should consider in each case whether on account of earlier
contradiction before Court and the testimony allowed to be given as
additional evidence, which of them or any one part or parts of the
depositions are creditworthy and acceptable, after a compl1rative analysis
and consideration of the probabilities and probative value of the materials
for adjudging the truth. To reject it merely because of contradiction and H
1058
SUPREME COURT REPORTS
[2004] 3 S.C.R.
A that too in a sensitised case like the one before Court with a horror and
terror oriented history of its own would amount to conspicuous omission
and deliberate dereliction of discharging functions judiciously and with a
_justice-orientated mission. I 1086-H; 1087-EI
1.14. If the witness who deposed one way earlier comes before the
B 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
reasocs 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
C 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
D 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. (1081-E-Hf
1.15. Right from the beginning, the stand of the appellant-witness
E was that the investigating agency was trying to help the accused persons
and so was the public prosecutor. If the investigation was faulty, it was
not the fault of the victims or the witnesses. If the same was done in a
manner with the object of helping the accused persons as it appears to be
apparent from what has transpired so far, it was an additional ground
p just and reasonable as well for accepting the additional evidence.
11088-D-Ef
1.16. In the case of a defective investigation the Court has to be
circumspect in evaluating the evidence and may have to adopt an active
and analytical role to ensure that truth is found by having recourse to
G Section 311 or at a later stage also resorting to Section 391 instead of
throwing hands in the air in despair. 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. 11088-Ff
H
Kamel Singh v. State of M.P., 11995( 5 SCC 518; Paras Yadav and Ors.
~
'
, I
,l
•
\ -".
Z.H.H. SHEIKH v. STATE OF GUJARAT
1059
v. State ofBihar, 1199912 SCC 126; Ram Bihari Yadav v. State of Bihar and A
Ors., 1199814 SCC 517 and Amar Singh v. Ba/winder Singh and Ors., (20031
2 sec 518, relied on.
1.17. If the acquittal is unmerited and based on tainted evidence,
tailored investigation, unprincipled prosecutor and perfunctory trial and
evidence of threatened/terrorised witnesses, it is no acquittal in the eye of B
law and no sanctity or credibility can be attached and given to the so-called
findings. It seems to be nothing but a travesty of r.ruth, fraud on legal
process and the resultant decisions of Courts - coram non judis and non
est. There is, therefore, every justification to call for interference in these
appeals. (1089-DI
C
1.18. In view of the records of the case 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 D
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. Judicial Criminal
Administration System must be kept clean and beyond the reach of E
whimsical political wills or agendas and properly insulated from
discriminatory standards or yardsticks of the type prohibited by the
mandate of the Constitution. (1090-E-F; 1091-81
1.19. The High Court has come to a definite conclusion that the F
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 G
the methodology adopted and out-turn 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. High Court has even gone to the extent
of holding that the FIR was manipul~ted. There was no basis for such a
presumptive remark or arbitrary conclusion. 11091-E-.GI
H
1060
SUPREME COURT REPORTS
[2004] 3 S.C.R.
A
1.20. The question whether the witnesses 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.
B 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
C 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
emphasize the need for permitting additional evidence to be taken and for
being considered as the evidence itself. 11092-B-DI
1.21. The reasoning of the High Court that statement u/s 161 Cr.P.C.
D was recorded in Gujarati though the witnesses did not know the language
for concluding that their statements having been recorded did not arise,
is erroneous. There was no material before the High Court for coming to
a finding that the persons did not know Gujarati. It is not a requirement
in law that the statement under Section 161 of the Code has to be recorded
E in the language known to the person giving the statement. 11092-E-FI
F
1.22. 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. 11093-AI
1.23. 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
G such material brought to the notice of the Courts below to justify nonexamination. I 1093-B-DI
1.24. 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
H and also by the High Court. 11093-DI
"" . '
Z.H.H. SHEIKH v. STATE Of GU.I ARA T
1061
\ J.,
1.25 Role of Public Prosecutor was also not in line with what is A
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, B
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. 11093-E-F]
,.l
Shai/endra Kumar v. Stale of Bihar and Ors., 120011 8 Supreme 13,
relied on.
c
1.26. A somewhat 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. Witnesses are examined by prosecution to D
show primarily who is the accused. In this case it was nobody's stand that
x
the incident did not take place. That the conduct of investigating agency
and the prosecutor was not bona fide, is apparent and patent. 11094-C-EI
1.27. It is true that merely because the affidavit has been filed stating
that the witnesses were threatened, as a matter of routine, additional E
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 the 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 F
f 'Jc
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. 11094-F-GI
:tt. Justice should not only be done but it should be see to be done.
However, a mere allegation that there is apprehension that justice will not G
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
H
must be fully satisfied about the existence of such conditions which would
1062
SUPREME COURT REPORTS
[2004) 3 S.C.R.
A render inevitably impossible the holding of a fair and impartial trial,
uninnuenced 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. 11095-E-GI
B
Gurcharun Das Chadha v. Stale of Rajasthan, 119661 2 SCR 678 and
K. Ambazhagan v. The Superintendent of Police and others etc., JT (2003) 9
SC 31, relied on.
2.2. Keeping in view the peculiar circumstances of the case, and the
ample evidence on record, glaringly demonstrating subversion of justice
C delivery system with no congeal and conducive atmosphere still prevailing,
it is directed that the re-trial shall be done by a Court under the
jurisdiction of Bombay High Court. It would be appropriate if same is
taken up on day-to-day basis keeping in view the mandate of Section 309
Cr.P.C. (1096-A; 1099-C)
D
2.3. State Government is directed 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 a pp.ointment of a Public Prosecutor, in view
of the unusual factors noticed in this case, to accord such liberties to the
E complainant party, would be appropriate. 11096-8-C)
2.4. The investigating agency or those supervising the investigation
are directed to act in terms of Section 173(8) of the Code, as the
circumstances seem to or may so warrant. [I 096-Fl
2.5. Even de hors any direction from the Court as such, it is open to
F the police to conduct proper investigation, even after the Court took
cognizance of any offence on the strength of a police report earlier
submitted. 11096-HI
2.6. Written arguments of the State and by the accused persons were
filed after the order of dismissal of appeal. If the written arguments were
G 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. [1097-A-BI
2. 7. The High Court after hearing the appeal directed its dismissal
indicating in the order that the reasons were to be subsequently given,
H because the Court was closing for winter holidays. This course was
\ '
)t
·'
)r
Z.M.H.SHEIKHv. STATEOFGUJARAT[PASAYAT,J.]
1063
adopted "due to paucity of time". There is no perceivable reason for the A
hurry. The accused were not in custody. Even if they were in custody, the
course adopted was not permissible. Such course can be adopted by this
Court because 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 B
the appellate jurisdiction of this Court under Article 136 of the
Constitution and other provisions of the concerned statutes.
(1097-A-B; G)
State of Punjab v. Jagdev Singe Talwandi, AIR (1984) SC 444, relied
on.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 446449 of 2004.
c
From the Judgment and Order dated 19.12.2003 and 26.12.2003 of the
Gujarat High Court in Crl. M.A. No. 10315/2003 in Crl. R.A. No. 583/2003, D
Crl. A. No. 956/2003 with Crl. M.A. No. 7677, Crl. M.A. No. 9825 of2003.
WITH
Crl. A. Nos. 450-452 of 2004.
Kapil Sibal, Mihir Desai, Ms. Apama Bhat, P. Ramesh Kumar, Ms. E
Priya Kiran and Brijesh Kalappa for the Appellants
Mukul Rohtagi, Additional Solicitor General, Ms. Hemantika Wahi and
Ms. Prachi Bajpai for State of Gujarat
Sushi! Kumar, K.T.S. Tulsi, Nikhil Goel, Adolf Mathew Vinay Arora,
Sanjay Jain, Dr. Kailash Chand and Vijay Patel for the Respondents.
F
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. Leave granted.
The present appeals have several unusual features and some of them
pose very serious questions of far reaching consequences. The case is G
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 H
1064
SUPREME COURT REPORTS
[2004] 3 S.C.R.
A 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.
B 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 1nerely to protect the accused.
The appeals are against judgment of the Gujarat High Court in Criminal
Appeal No. 956 of 2003 upholding acquittal of respondents-accused by the
C 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.
D Consequentially, prayer for examination of witnesses under Section 311 of
the Code was also rejected.
In a nutshell the prosecution version which led to trial of the accused
persons is as follows:
E
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 Jost family members including helpless women and innocent
F 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.
During trial the purported eye-witnesses resiled from the statements
G 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.
Zahira appeared before National Human Rights Commission (in short
H the 'NHRC') stating that she was threatened by powerful politicians not to
I
>
.
)..
Z.H.H.SHEIKHv. STATEOl'GU.IARAT[PASAYAT . .I.]
1065
depose against the accused persons. On 7.8.2003 an appeal not up to the A
mark and neither in conformity with the required care, appears to have been
filed by the State against 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 B
and Peace filed SLP (Crl.) No. 3770 of2003 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 C
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.
D
>:
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 E
witness who was to be examined on 17.5.2003 specially 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.
F
The public prosecutor was not acting in a manner befitting the position
held by him.