# • '! \ ZAHIRA HABIBULLAH SHEIKH AND ANR v. ST A TE OF GUJARAT AND ORS

- **Citation:** [2006] 2 S.C.R. 1081
- **Court:** Supreme Court of India
- **Decided:** 2006-03-08
- **Case number:** Criminal Mis. Petition Nos. 6658-6661 of 2004
- **Bench:** Arijit Pasa Yat, H.K. Sema
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/zahira-habibullah-sheikh-and-anr-v-st-a-te-of-gujarat-and-ors-21183
- **Pages:** 29

## Headnote

B
~
Criminal Procedure Code, I973-Section 311-Trial Court acquitting
accused since all witnesses turned hostile-Witness made statements after
trial before various bodies contending that she was intimated, threatened and c
coerced to turn hostile during trial-Direction by Supreme Court for re-trail
in another State on basis of the statements by the witness-Witness thereafter
giving press statements contending that she had not made such statements
before various bodies and Supreme Court-Initiation of contempt of court
proceedings against the witness before Supreme Court-Held, witnesses are
the eyes and ears of justice-State has a definite role to play in protecting the D
~
witnesses-On facts, witness has committed contempt of court-Inquiry: initiated
by Supreme Court revealed that the witness has accepted money for changing
her stand-Witness sentenced to one year simple imprisonment-Supreme Court
directing Income Tax authorities to initiate appropriate proceedings against
the witness.
E
In a communal violence incident in the State of Gujarat, accused set
lire to a shop in which 14 persons died. Appellant claimed to be an eye
witness to the incident. A trial Court in Gujarat acquitted all the accused
on the ground that many witnesses including the appellant turned hostile.
_)._
The appellant made statements before National Human Rights F
Commission and other bodies after the trial alleging that during the trial
she was intimidated, threatened and coerced to depose falsely and turn
hostile. The State filed an appeal before Gujarat High Court challenging
the acquittal of the accused by the trial court. The State also filed
miscellaneous petitions before High Court for retrial by the trial court.
The High Court dismissed the appeal and miscellaneous petitions. This G
Court, in appeal by the appellant, directed a re-trial by a trial court under
·-"'
the jurisdiction of Bombay High Court on finding glaringly demonstrating
subversion of justice delivery system and no congeal and conducive
atmosphere still prevailing in the State of Gujarat for conducting f.resh
1081
H
1082
SCPREME COURT REPORTS
(200612 S.C.R.
A trial.
).
When the re-trial was on before a trial court in Maharashtra, the
appellant gave press statements disowning the statements made before this
Court and before various bodies about intimidation and coercion for
B
turning hostile. A miscellaneous petition was filed against the appellant
for committing contempt of court. This Court directed an inquiry by
appointing Registrar General of' this Court as an lnquiry Officer. This
Court also directed the appellant to file an affidavit before the Registrar
'l
General indicating details of bank accounts, advances and investments in
moveable and immoveable properties and its sources thereof of her and
c her family members.
The lnquiry Officer submitted an Inquiry report to this court
finding, inter alia, that the appellant was induced by money for changing
her stands; and that the appellant and her family members could not
explain the assets and investments in their possession.
D
The appellant objected to the Inquiry Report contending that she
was a puppet in the hands of another and had made such statements only
,..
at the instance of others; that the procedure adopted by the Inquiry Officer
was not fair and transparent; that the Inquiry Officer did not give any
opportunity to cross-examine the witnesses; that the request for examining
E the Chairman of the National Human Rights Commission was rejected
without reasons; that the Inquiry Officer acted with some pre-conceived
conclusions and his report was based on presumptions; that she has signed
only the vakalatnama and not the affidavit in the appeal and hence, she
is not responsible for the statements made in the affidavit; that she had
F not approached this Court for fresh trial; and that she was not the only
person who turned hostile and no action ha_d been taken against others.
,._
Disposing of the miscellaneous petition with

## Text

_Characters 0–39,997 of 65,819. This is a partial read: ask again with offset=39997 for what follows._

• '! \
ZAHIRA HABIBULLAH SHEIKH AND ANR .
A
v.
ST A TE OF GUJARAT AND ORS.
MARCH 8, 2006
[ARIJIT PASA YAT AND H.K. SEMA, JJ.]
B
~
Criminal Procedure Code, I973-Section 311-Trial Court acquitting
accused since all witnesses turned hostile-Witness made statements after
trial before various bodies contending that she was intimated, threatened and c
coerced to turn hostile during trial-Direction by Supreme Court for re-trail
in another State on basis of the statements by the witness-Witness thereafter
giving press statements contending that she had not made such statements
before various bodies and Supreme Court-Initiation of contempt of court
proceedings against the witness before Supreme Court-Held, witnesses are
the eyes and ears of justice-State has a definite role to play in protecting the D
~
witnesses-On facts, witness has committed contempt of court-Inquiry: initiated
by Supreme Court revealed that the witness has accepted money for changing
her stand-Witness sentenced to one year simple imprisonment-Supreme Court
directing Income Tax authorities to initiate appropriate proceedings against
the witness.
E
In a communal violence incident in the State of Gujarat, accused set
lire to a shop in which 14 persons died. Appellant claimed to be an eye
witness to the incident. A trial Court in Gujarat acquitted all the accused
on the ground that many witnesses including the appellant turned hostile.
_)._
The appellant made statements before National Human Rights F
Commission and other bodies after the trial alleging that during the trial
she was intimidated, threatened and coerced to depose falsely and turn
hostile. The State filed an appeal before Gujarat High Court challenging
the acquittal of the accused by the trial court. The State also filed
miscellaneous petitions before High Court for retrial by the trial court.
The High Court dismissed the appeal and miscellaneous petitions. This G
Court, in appeal by the appellant, directed a re-trial by a trial court under
·-"'
the jurisdiction of Bombay High Court on finding glaringly demonstrating
subversion of justice delivery system and no congeal and conducive
atmosphere still prevailing in the State of Gujarat for conducting f.resh
1081
H
1082
SCPREME COURT REPORTS
(200612 S.C.R.
A trial.
).
When the re-trial was on before a trial court in Maharashtra, the
appellant gave press statements disowning the statements made before this
Court and before various bodies about intimidation and coercion for
B
turning hostile. A miscellaneous petition was filed against the appellant
for committing contempt of court. This Court directed an inquiry by
appointing Registrar General of' this Court as an lnquiry Officer. This
Court also directed the appellant to file an affidavit before the Registrar
'l
General indicating details of bank accounts, advances and investments in
moveable and immoveable properties and its sources thereof of her and
c her family members.
The lnquiry Officer submitted an Inquiry report to this court
finding, inter alia, that the appellant was induced by money for changing
her stands; and that the appellant and her family members could not
explain the assets and investments in their possession.
D
The appellant objected to the Inquiry Report contending that she
was a puppet in the hands of another and had made such statements only
,..
at the instance of others; that the procedure adopted by the Inquiry Officer
was not fair and transparent; that the Inquiry Officer did not give any
opportunity to cross-examine the witnesses; that the request for examining
E the Chairman of the National Human Rights Commission was rejected
without reasons; that the Inquiry Officer acted with some pre-conceived
conclusions and his report was based on presumptions; that she has signed
only the vakalatnama and not the affidavit in the appeal and hence, she
is not responsible for the statements made in the affidavit; that she had
F not approached this Court for fresh trial; and that she was not the only
person who turned hostile and no action ha_d been taken against others.
,._
Disposing of the miscellaneous petition with directions, the Court
HELD: 1.1. It is for the appellant to explain whether she was telling
G the truth or making a false statement. Merely stating that she was acting
as a puppet in the hands of another is not sufficient. A bare reading of
the observations made in the Inquiry Report makes it clear that what is
....
being submitted by the appellant is by reading observations out of context.
On a bare perusal of the proceedings of the enquiry, it is clear that the
procedure adopted was quite transparent. The proceedings were conducted
H in the presence of the counsels for the parties and/or the parties themselves.
\
. '
•
~)
ZAHIRA IHAB!BULLAH SHEIKH r. STATE OF GUJARAT
J 083
1.2. The grievance of the appellant th at she was not given A
opportunity to cross--examine the witnesses is of no consequence. What
questions in cross-examination by counsel could h:ave been put were asked
by the Inquiry Officer whenever and suggestion was made in that regard .
If a party did not soggiest any question to be put to u witness by the Inquiry
Officer, it is not open for him or her to say that opportunity for cross- B
examination was not given. [1097-E-F]
1.3. The grie,vance of the appellant tha•t the request to call the
Chairman, NHRC was turned down without reaso.11s is rejected. The
allegation that the statement of the appellant given in "he presence of the
Chairman, NHRC and other members was not properly recorded or that C
somebody else's ~.tatement was recorded and the appella•nt was asked to
put the si,gnatures, as she bas tried to make out is clearly i.mtenable. Such
a plea •.should not have been raised as it reflects on the credibility of
·functic1naries of a bod)~ like NHRC. (1097-F-G)
1.4. The allegation that the Inquiry Officer acted with some pre- D
couc.eived ideas and/or re,{lort was based on presumptions is no,t correct.
The, conclusions drawn by' the Inquiry Officer have thieir foundi.1tion on
materials which have been ,<:Jaborately discussed by the Inquiry O'fficer.
The contention of the appel.hmt that by mere filing of a vakalatn•ama
without an affidavi~, it cannot ·constitute a statement by the person "vho E
has filed the vakalatnama is clearl',y unacceptable. The appeal undisputed;ly
has been filed by the appellant :anc.I it has been candidly admitted that she
has filed the vakalatnama for· filing the appeal. She cannot now turn
around and say that she was not a p111rty in the appeal. There is no reason
to discard the report given by t~e Inquiry Officer which is accordingly
accepted. (1098-A·DJ
F
1.5. The role of the appellant in the whole case is an eye-opener for
all concerned with the administral'ion of criminal justice. The criminal
justice system is likely to be affecte.d if persons like the appellant are to
be left unpunished. The Inquiry Offic'er has found that the appellant could
not explain her assets and the explan.ations given by her in respect of the
sources of bank deposits etc. have bt~en found to be unacceptable. This
Court finds no reason to take a different view. The appellant has
committed contempt of this Court. [10•98-E-G)
Zahira Habibullah Sheikh and Anr. w. State of Gujarat and Ors., (2004)
G
H
1084
SUPREME COURT REPORTS
[2006) 2 S.C.R.
A 4 SCC 158 and (2004) 5 SCC 353; Sukhdev Singh Sodhi v. Chief Justice and
Judges of the PEPSU High Court, AIR (1954) SC 186 and Supreme Court
)
Bar Association v. Union of India and Anr., AIR (1998) SC 1895; Re: Sri
Pravakar Behera (2003) 10 SCALE 1726, referred to.
Metropolitan Properties Ltd. v. Lannon, (19681 3 All ER 304 (CA);
B Lesson v. General Council of Medical Education, (1890) 43 Ch.D. 366 and
Jennison v. Backer, [19721 1 All ER 1006, referred to.
1.6. Witnesses are the eyes and ears of justice. If a witness himself is
. ~ncapacitated from acting as eyes and ears of justice, the trial gets putrefied
C and paralysed and it no longer can constitute a fair trial. Time has become
ripe to act on account of numerous experiences faced by Courts on account
of frequent turrning of witnesses as hostile due to threats, coerdon, lures
and monetary considerations at the instance of those in power, their
henchmen and hirelings, political clouts and patronage and innumerable
other corrupt practices ingeniously adopted to smother and stifle truth
D 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
eve11 in slow process but irreversibly and irretrievably, which if allowed
E
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 of the edifice of
rule of law, enshrined and jealously guarded and protected by the
Constitution of India. There comes the need for protecting the witness.
Time has come when serious and undiluted thoughts are to be bestowed
F foq1rotecting witnesses so that ultimate truth is presented before the Court
•
and justice triumphs and that the trial is not reduced to a mockery.
•
11106-B-FJ
1.7. The State has a definited role to play in protecting the witnesses.
As a protector of its citizens, it has to ensure that during a trial in Court
G the witness could safely depose truth without any fear of being haunted
by those against whom he had deposed. Every State has a constitutional
obligation and duty to protect the life and liberty of its citizens. That is
the fundamental requirement for observance of the rule of law. There
'
cannot be any deviation from this requirement because of any extraneous
factors like, caste, creed, religion, political belief or ideology. Every State
H is supposed to know these fundamental requirements and this needs no
~
\
i
ZAHIRA HABIBULLAH SHEIKH v. STA TE OF GUJARAT
1085
J.,
retaliation. If ultimately truth is to be arrived at, the eyes and ears of A
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. ( 1107-D-G (
1.8. Legislative measures to emphasise prohibition against tampering
with witness, victim or informant have become the imminent and inevitable B
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 to the needs to the society.
On the contrary, efforts should be to ensure fair trial where the accused c
and the prosecution both get a fair deal. Public interest in the proper
administration of justice must be given as much importance if not more,
as the interest of the Individual accused. In this courts have a vital role to
play. (1107-H; 1108-A-B(
Jagat Rai v. State of Maharashtra, AIR (1968) SC 178 and Dhanraj D
Singh @ Shera and Ors. v. State of Punjab, JT (2004) 3 SC 380, referred
to.
1.9. The appellant is sentenced to undergo simple imprisonment for
one year and to pay cost of Rs. 50,000 and in case of default of payment
within two months, she shall suffer further imprisonment of one year;
E
(1108-CJ
I.IO. The assets of the appellant including bank deposits shall remain
attached for a period of three months. The Income Tax Authorities are
·directed to initiate proceedings requiring her to explain the sources of F
.~
acquisition of various assets and the expenses met by her. (II 08-D(
CRIMINAL APPELLATE JURISDICTION : Criminal Mis. Petition
Nos. 6658-6661 of 2004 In Criminal Appeal Nos. 446-449 of 2004.
From the final Order and Judgment dated 19 .12.2003 of the Gujarat
G
High Court in Cr!. Misc. Appln. No. 10315/2003 in C.R.A. No. 583/03 and
final Order and Judgment dated 26.12.2003 in Crl. A. No. 956/03 .
...
'
WITH
Cr. M.A. No. 7677/03 with Cr. M.A. No. 9825/03.
Dinesh Kumar Garg, Manzolor Ali Khan, Pavit Singh, Ms. Aparna H
/
1086
SUPREME COURT REPORTS
[2006] 2 S.C.R.
A Bhat, P. Ramesh Kumar, Ms. Afreen Siddiqui and Ms. Madhulika Mohta for
the Appellants.
Ms. Hemantika Wahi, Dr. Kailash Chand, A.P. Mayee, V.N. Raghupathy,
Sanjay Jain, S. Muralidhar, Manoj Goel, Shuvodeep Roy, Wajiih Shafiq, Brij
Bhushan, Manoj Goel, Abha R. Sharma and H.A. Raichura for the
B Respondents.
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. The case at hand immediately brings into mind
two stanzas ( 14 and 18) of Eighth Chapter of Manu Samhita dealing with
C role of witnesses. They read as follows:
"Stanza 14
"Jatro dharmo hyadharmena
D
Satyam Jatranrutenacha
Hanyate prekshyamananam
Hatastrata Sabhasadah"
E
(Where in the presence of Judges "dharma" is overcome by
F
G
H
"adharma" and "truth" by "unfounded falsehood", at that place they
(the Judges) are destroyed by sin)
Stanza 18
"Padodharmasya Kartaram
Padah sakshinomruchhati
Padah sabhasadah sarban
pado rajanmruchhati"
(In the adharma flowing from wrong decision in a Court of law,
one fourth each is attributed to the person committing the adharma,
witness, the judges and the ruler".)
This case has its matrix in an appeal filed by Zahira Habibullah
).
..
•.
ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.]
] 087
hereinafter referred to as 'Zahira and Another namely, Teesta Setelwad' and A
another appeal filed by the State of Gujarat. In the appeals filed before this
Court, the basic focus was on the absence of an atmosphere conducive to fair
trial. Zahira who was projected as the star witness made a grievance that she
was intimidated, threatened and coerced to depart from the truth and to make
statement in Court which did not reflect the reality. The trial Court on the B
basis of the statements made by the witnesses in Court directed acquittal of
the accused persons. Before the Gujarat High Court an application under
Section 391 of the Code of Criminal Procedure, 1973 (in short the 'Code')
highlighting the necessity for accepting additional evidence was filed. The
foundation was the statement made by Zahira. The High Court did not accept
the prayer and that is why the appeals came to be filed in this Court. By C
judgment dated 12th April, 2004 in Zahira Habibullah Sheikh & Anr. v. State
of Gujarat and Ors., [2004] 4 SCC 158, the following directions were given:
"75. Keeping in view the peculiar circumstances of the case, and the
ample evidenc·e on record, glaringly demonstrating subversion of D
justice delivery system 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.
78. Since we have directed re-trial it would be desirable to the E
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."
A review petition (Zahira' Habibulla H. Sheikh and Anr. v. State of
Gujarat and Ors., [2004] 5 SCC 353 was filed by the State of Gujarat which
was disposed of by order dated 7th May, 2004.
F
G
While the trial was on before a Court in Maharashtra pursuant to this H
Court's direction, it appears Zahira gave a press statement in the presence of
1088
SUPREME COURT REPORTS
(2006] 2 S.C.R.
A some government officials that what she had stated before the trial Court in
Gujarat earlier was correct. A petition was filed before this Court alleging
that Zahira's statement was nothing but contempt of this Court. At a press
conference held on 3 .11.2004 few days before the scheduled appearance of
the witnesses in the trial, she had changed her version, disowned the statements
B made in this Court, and before various bodies like National Human Rights
Commission. Considering the petition filed orders were passed on I 0.1.2005
and subsequently on 21.2.2005, giving directions which read as follows:
c
D
E
F
G
H
Order dated IO .1.2005
Having heard learned counsel for the parties, we are of the
considered view that a detailed examination is necessary as to which
version of Zahira Habibullah Sheikh is a truthful version. It is necessary
to do so because various documents have been placed to show that
she had made departure from her statements/stands at different points
of time. Allegations are made by Mr. P.N. Lekhi, learned senior
counsel appearing for Zahira Habibullah Sheikh that she was being
threatened, coerced, induced and/or lured by Teesta Setalvad. On the
contrary, learned counsel appearing for Teesta Setalvad submits that
she was being threatened, coerced, lured or induced by others to
make statements or adopt stands contrary to what she had stated/
adopted earlier. In this delicate situation, the appropriate course would
be to direct an inquiry to be conducted to arrive at the truth. We
direct the Registrar General of this Court to conduct the inquiry and
submit a report to this Court within three months. The Registrar
General shall indicate in the report (a) if Zahira Habibullah Sheikh
was in any manner threatened, coerced, induced and/or in any manner
pressurised to depose/make statement(s) in any particular way, by
any person or persons, and (b) if the answer to (a) is in the affirmation,
who the person/persons is (or) are.
For the purpose of inquiry, he may take assistance of a police officer
of the rank of Inspector General of Police. Though a suggestion was
given by Mr. For the purpose of inquiry, he may take assistance of
a police officer of the rank of Inspector General of Police. Though a
suggestion was given by Mr. Anil Diwan, learned senior counsel
appearing on behalf of Ms. Teesta Setalvad that it should be an officer
from the CBI, Mr. P.N. Lekhi, Mr. K.T.S. Tulsi and Mr. Mukul
' ,.
ZAHIRA HABIB ULLAH SHEIKH v. STATE OF GUJARAT [PASA Y AT, J.]
1089
Rohtagi, learned senior counsel, opposed the same. In our view, an A
-
_...,
efficient, impartial and fair officer should be selected. Therefore, we
leave the choice to the Registrar General to nominate an officer of the
Delhi Police, as noted above, of the rank of Inspector General of
Police. The inquiry shall be conducted on the basis of affidavits to be
placed before the Registrar General and if he deems fit, he may B
examine any witness or witnesses to substantiate the contents of the
affidavits. We do not think it necessary to lay down any broad
guidelines as to the modalities which the Registrar General will adopt.
'.;
He is free to adopt such modalities as he thinks necessary to arrive
~
at the truth, and to submit the report for further consideration.
The affidavits and documents if any in support of the respective c
stands shall be filed before the Registrar General within a period of
four weeks from today.
We make it clear that the pendency of the inquiry will not be a
ground for seeking adjournment in the pending trial.
D
We have perused the letter of the trial court seeking extension of
-<\
time. The time is extended till 31st of May, 2005 for completion of
trial.
The matter shall be placed for consideration of the Report to be
E
submitted, after three months.
Order dated 21.2.2005
Heard.
The parties are granted four weeks' time to file the affidavits in F
terms of the earlier order dated 10.01.2005. We make it clear that we
have not taken note ofparagraph-8 of the application filed in Crl.M.P.
Nos.1908-1911 of 2005.
Criminal Miscellaneous Petition Nos.1908-1911 of 2005 are
accordingly disposed of.
G
Crl.M.P. Nos.6658-6661 of 2004
i
By order dated I 0.01.2005, the question as to whether Ms. Zahira
Habibullah Sheikh was in any manner induced to depose in a particular
~·
way, has been directed.to be enquired into, we think it appropriate to H
1090
A
B
c
D
SUPREME COURT REPORTS
[2006] 2 S.C.R.
direct her to file an affidavit indicating details of her bank accounts,
advances, other deposits, amounts invested in movable or immovable
properties and advances or security deposits, if any for the aforesaid
purpose, along with the affidavit to be filed before the Registrar
General of this Court. She will also indicate the sources of the aforesaid
deposits, advances and investments, as the case may be. She shall
also indicate the details of such deposits, advances and investments,
if any, in respect of her family members and the source thereof. The
Registrar General and police officer nominated to be associated with
enquiry are free to record statements of such family members and to
make such further enquiries in the manner as deemed necessary and
to ask the family members to file affidavits containing the details as
noted above. They shall indicate in the affidavits and the statements
the sources of such deposits, advances and investments. If the Registrar
General and the police officer feel that any further enquiry as regards
the sources is necessary, they shall be free to do it.
Since, we have extended the time for filing of affidavits by the
parties, the enquiry report shall be submitted by the Registrar General
within three months from today.
Put up thereafter."
E
Considering the materials placed before the Inquiry Officer, he has
F
G
H
submitted his report. Parties were permitted to file statements indicating their
views so far as the report is concerned. The findings recorded by the Inquiry
Officer with reference to various documents are essentially as follows:
(I) The FIR dated 2.3.2002
(2) Memorandum dated 21.3.2002 before the Chairman, NHRC
(3)
Statements made on 11.5.2002 and 20.7.2002 before the
concerned Citizen Tribunal and Nanavati Commission respectively
(4) Statements dated 7. 7.2003 of the Press Conference in Mumbai
(5) Statement dated 11. 7.2003 before NHRC
(6) Plain copy of the affidavit dated 8.9.2003 attested by Notary
submitted before this Court as additional document in SLP(Crl.)
3770/2003
(7) Statement recorded on 16.12.2003 at the Santa Cruz Police Station,
•
...
\.:
ZAHIRA HABIBULLAHSHEIKH v. STATE OF GUJARAT [PASAYAT, J.]
J 091
M~~
A
(8) Affidavit dated 3.11.2004 submitted before Collector, Vadodara
(9) Affidavit dated 31.12.2004 submitted before this Court
(10) Affidavits dated 20.3.2005, 12.4.2005 and 24.4.2005 before the
Inquiry Officer.
B
The Inquiry Officer has categorically recorded that Zahira had changed her
stands at different stages and has departed from statements made before this
Court. So far as the question whether she was threatened, coerced, lured,
induced and/or in any manner pressurized to make statements in a particular
way by any person or persons, it has been found that Zahira has not been able C
to explain the assets in her possession in spite of several opportunities having
been granted. The Inquiry Officer had referred to transcript of conversations
purported to have been made between a representative of "Tehlaka" and Shri
Tushar Vyas, Shri Nisar Bapu and Shri Chandrakant Ramcharan Srivastava
@ Bhattoo Srivastava, Shri Madhu Srivastava, and Shri Shailesh Patel. These
persons were also given opportunity to explain their stands as the transcript
of the Video Compact Disc produced by Tehlaka.com clearly indicated that
money was paid to Zahira to change her stand. The Inquiry Officer has
referred to the explanations offered by Zahira and her family members and
found that she could not explain various receipts of money received by her
D
and deposits made in their bank accounts. The amount involved was nearly E
rupees five lakhs. The explanation offered by Zahira and her family members
was found unacceptable. The details indicated in the affidavit dated 24.4.2005
filed by Zahira explained the following details:
"1. 'Rs.65,000/-
Sale consideration of one house sold in the month
of November, 2001
2.
Rs.40,000/(Approx.)- Sale consideration of two-three wheelers
sold to Scrap dealer (Kabadi)
3.
Rs.30,000/- Received from Insurance Company by mother on
account of damages to motor cycle.
4.
Rs.32,000/- Sale consideration of scrap of machinery of Bakery
5. Rs.1,50,000/-(Approx.) Sale consideration of scrap of Bakery
6.
Rs.50,000/- Compensation for damages o(house received from
Government through cheque in favour of her mother
F
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1092
A
SUPREME COURT REPORTS
[2006] 2 S.C.R.
7.
Rs.50,000/- Received by mother as & Rs.40,000/- compensation
of her sister's death from the Government through cheque
8.
Rs.493/-P.M. Deposited on monthly basis directly in Savings Bank
Account No.16669 with Syndicate Bank stands in the name of
mother, as interest on Bond amount of Rs.50,000/- received as
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compensation of her sister's death from Government.
9.
Rs.55,000/-
Investment in a house in Ekta Nagar in the name
of Ms. Zahira Sheikh
C
10. Rs.20,000 & Rs.25,000/- Investment in two small plots of 15x30ft.
each by her brother Nasibullah
1 I. Rs.45,000/- Deposited by her in the Bank Account No.11348
with Bank of Baroda, Nawapura Branch at Vadodara
12. Rs.52,045/- Deposits in a joint account No.16754 with her brother,
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Nasibullah with Syndicate Bank, Goddev Branch, Bhayander
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13. Rs.1,37,384/- Deposits in her brother's account No.16667 with
Syndicate Bank, Goddev Branch, Bhayander
14. Rs.1,42.256/-
Deposits in her mother's account No.16669 with
Syndicate Bank, Goddev Branch, Bhayander.
The Inquiry Officer repeatedly asked Zahira and her brother H. Nafitullah
about the names and addresses of purchasers of scrap and further details
which were not supplied.
Two charts have been prepared by the Inquiry Officer showing the
F discrepancies. They read as follows:
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ZAHIRA HA~IBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.)
) 093
CHART NO. I
Receipts
S. No.
Amount
Remarks
I.
Rs. 50,000/- &
Received as compensation of her
Rs. 40,000/-
sister's death
2.
Rs. 25,000/-
Received as damages of the house.
3.
Rs. 30,000/-
Received from insurance company
against damages of motorcycle.
4.
Rs. 18,800/-
Received as sale price of one threewheeler
5.
Rs. 6,296/-
Receipts from clearing zoneReceived as interest against bond of
which has been alleged to be
purchased out of the balance amount
of Damages of sister's death.
TOTAL
Rs. 2,02,096/-
.
Note:
Rs. l,82,000/- have been claimed to be treated as receipts against
the sale price of the scrap which has not been acceded to on the
ground noted on page No. 106-107 despite if this amount is
deemed to be accepted, then the total of the receipts will be Rs.
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B
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3,84,096 (Rs. 2,02,096 + Rs. 1,82,000).
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CHART NO. 2
Investments:
.
S. No.
Amount
Remarks
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I.
Rs. 45,000/-
Deposited by her in the Bank
.
Account No. 11348 with Bank of
Baroda, Nawapura Branch at
Vadodara.
H
A
B
c
D
E
F
G
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2.
3.
4.
5.
6.
7.
8.
Total
SUPREME COURT REPORTS
[2006] 2 S.C.R.
Rs. 52,045/-
Deposits in a joint account No.
16754 with her brother, Nasibullah
with Syndicate Bank, Goddev
Branch, Bhayander.
Rs.1,37.384/-
Deposits in her brother's account
No. 16667 with Syndicate Bank,
Goddev Branch, Bhayander.
Rs. 1,42,256/-
Deposits in her mother's account
No. 16669 with Syndicate Bank,
Goddev Branch, Bhayander.
Rs. 73,000/-
Purchase of two plots and
construction to the tune of Rs.
66,000/- and spent Rs. 7,000/- on
renovation of best bakery building.
Rs. 60,000/-
Invested against a flat of Bombay
Rs. 48,000/-
Deposited on 14.5.2003 with Bank
account (A/c. No. 2037) of Sh.
Nafitullah.
Rs. 30,727/-
Mother's account (Ale. No. 8881)
Rs. 5,88,412/-
Difference: Investments Receipts Rs. 5,88,412 Rs. 2,02,096 = Rs.
3,86,316/-
If Rs. 1,82,000/- is also included as receipts then the difference is =
Rs. 2,04,3 I 6/-.
The Inquiry Officer recorded the following findings:
"In view of the all, as discussed above, the fact which can be accepted
as highly probable, that money has exchanged hands and that was the
main inducement responsible which made Ms. Zahira to state in a
particular way in Trial Court, Vadodara although threat could have
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ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.]
1095
also played a role in reaching at an agreement. However, the element A
of threat cannot be altogether ruled out. One cannot loose sight of the
fact that first contact over cell phone was. made by Sh. Madhu
Srivastava and Sh. Bharat Thakkar and not by Sh. Nafitullah. The
evidence of Sh. Abhishek Kapoor about presence of Sh. Madhu
Srivastava, MLA, in the Court at the time of testimony of Ms. Zahira B
can also be treated as an indication of this factor."
In addition to the aforesaid conclusions the Inquiry Officer has also
recorded that after a particular point of time. contemporaneous to when she
started changing her stand, a society called Jan Adhikar Samiti came to the
picture. It appears from the statements of functionaries of Jan Adhikar Samiti C
that substantial amount has been spent for meeting the expenses of Zahira
and her family members. But the Inquiry Officer has found that even though .
materials do exist to show that money played a vital role in the· change of
stand yet it could not be directly liriked to Madhu Srivastava and Bhattoo
Srivastava.
Zahira has objected to acceptance of the Inquiry Officer's report. The
. grounds on which the· objections have been raised essentially as follows:
(1)
The Inquiry Officer has tailored facts to fit into his pre-conceived
conclusions. There has been deliberate omissions and distorti6n
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of facts.
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(2)
No cross examination of the witnesses whom the Inquiry Officer
has examined was permitted.
(3)
(4)
There was no transparent procedure adopted and the agreed
procedure was never followed.
There was lack of fair objective and ~easonable approach. The
pre-requisites of an objective enquiry were missing. There was
no intelligent appreciation of facts.
(5)
The Inquiry Officer appeared to be guided by Teesta Setalwad.
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The conclusion that Zahira had approached this Court for' a G
fresh trial . is wrong.
(6)
(7)
The request for examining the Chairman, NHRC was not
accepted without indicating any reason.
· Zahira was not only the person who had made departure from
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(8)
(9)
SUPREME COURT REPORTS
[2006) 2 S.C.R.
her stand purportedly recorded during investigation, there were
others but no effort was made to take any action against them.
Though many persons had died or injured, Citizen for Justice
and Peace and its functionaries never bothered to take up their
cases. It is surprising why they only chose Zahira.
The petition filed before this Court was not in fact signed by
Zahira but was signed by Teesta and the mere fact that she had
filed a Vakalatnama would not make her responsible for the
statements made in the affidavit.
Upto the point of time of the Press Conference Zahira was under
the control of Teesta and she was a mere puppet in her hands
and whatever statement was purportedly made by Zahira was in
fact made by Teesta. Teesta's role in the whole episode is very
suspicious. She had spent lot of money taking advantage of the
helplessness of Zahira and has used her for her machination.
Zahira was tutored to make statements on different occasions.
Teesta has given different versions as to when she has come in
contact with Zahira and decided to take up her issues.
On the other hand, the State of Gujarat has adopted a peculiar stand
stating that in view of conclusions of the Inquiry Officer it is not in a position
E to simpliciter accept or deny the report. So far as the criticism levelled by the
Inquiry Officer against the conduct of some of the officers it was pointed out
that the State has shown its anxiety to see that justice is done and nothing is
wrong in deputing officers and merely because Shri S.N. Sinha who had been
transferred appeared in the proceedings before the Inquiry Officer, that cannot
show that the State of Gujarat was adopting any particular stand.
F
On behalf of Mrs. Teesta it has been submitted that report deserves to
be accepted. Further enquiry as to the role of Madhu Srivastava and the
sources of money which has come to the possession of Zahira may be further
proved. The Inquiry Officer has clearly indicated the roles played by Madhu
Srivastava and his cousin Chandrakant in intimidating/coercing witnesses
G like Zahira and family members. Assistance was given by Sudhir Sinha,
Commissioner of Police, Surat to Zahira to hold the press conference on
3.11.2004 just a day before her testimony was to be recorded in Mumbai.
Similar assistance was given by Shri Bhagyesh Jha, Collector, Vadodara to
Zahira. The directions by the Home Secretary Shri S.C. Murmu, to Shri
H Sudhir Sinha, Commissioner of Police, to attend the proceedings before the
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ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.]
1097
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Inquiry Committee clearly show the partisan approach. The role of the State A
of Gujarat in lodging Zahira and her family members at Silver Oak Club,
Gandhi Nagar for a period of 10 days raises big question mark as to who met
the expenses. These clearly show that sinister roles were played by State of
Gujarat's functionaries. It has been submitted that Teesta is being targeted for
exposing the evil deeds of the aforesaid persons.
B
At the outset, it has to be noted that we have not gone into the question
as to whether Teesta has done anything wrong in the process. It was for
Zahira to explain whether she was either telling the truth or making false
statement. Merely stating that she was acting as a puppet in the hands of
Teesta is not sufficient. Much has been made by learned counsel ror Zahira c
about some observations made by Inquiry Officer in his report. A bare reading
of the observations makes it clear that what is being submitted by learned
. counsel for Zahira is by reading observations out of context.
The procedure adopted during enquiry has been characterized to be
unfair and not fair and transparent procedure. On a bare perusal of the D
...
proceedings of the enquiry, it)s. clear that the procedure adopted was quite
transparent. The proceedings we~econducted in the presence of learned counsel
for the parties and/or the parties themselves. After the questions were asked
by the Inquiry Officer, learned counsel and the parties were asked if any
further questions were to be asked and as the records revealed whenever any E
question was suggested that was asked. Grievance is made that scope for
"cross examination" was not given. That according to us is really of no
consequence. What questions in "cross examination" by learned counsel could
have been put, were asked by the Inquiry Officer whenever any suggestion
was made in that regard. If a party did not suggest any question to be put to
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a.witness by"the Inquiry Officer, it is not open for him or her to say that F
opportunity· for "cross examination" was not given. A further grievance is
. made that a request to call the Chainnan, NHRC was turned down without
reasons. This according to us is a plea which needs to be noticed and rejected.
The statement of Zahira was recorded by NHRC in the presence of the
Chairman (a retired Chief Justice of thi51~,urt) and se-veral members which
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included a retired Judge of this Court). The allegation that it was not properly
recorded or that somebody else's statement was recorded and Zahira was
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asked to put the signatures, as she has tried to make out is clearly untenable.
If we may say so, such a plea should not have been raised as it reflects on
the credibility of functionaries of a body like NHRC.
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1098
SUPREME COURT REPORTS
[2006] 2 S.C.R.
A
The other pleas which have been enumerated above do not in any way ..
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affect credibility or acceptability of the report. The allegation that the Inquiry
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Officer acted with some pre-conceived ideas and/or report was based on
presumptions is not correct. The conclusions drawn by the Inquiry Officer
have their foundation on materials which have been elaborately discussed by
B
the Inquiry Officer. Much has been made of the fact that original affidavit
was not filed. The reason for this has been explained, the Inquiry Officer has
dealt with the question in detail and undisputedly original affidavit has been
brought on record. The stand that mere filing of a vakalatnama without an
affidavit by the concerned person cannot constitute a statement by the person
•
who has filed the vakalatnama is clearly unacceptable. The appeal undisputedly
c has been filed by Zahira and it has been candidly admitted that she has filed
the vakalatnama for filing the appeal. She cannot now tum around and say
that she was not a party in the appeal.
Above being the position, there is no reason to discard the report given
by the Inquiry Officer which is accordingly accepted. Further, what remains
D to be done is what is the consequence of Zahira having made such conflicting
statements and the effect for changing her stand from the statements made at
different stages, particularly in this Court.
..
Whatever be the fate of the trial before the Court at Mumbai where the
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trial is stated to be going on and the effect of her statement made during trial
shall be considered in the trial itself. Acceptance of the report in the present
proceedings cannot have any determinative role in the trial. Serious questions
arise as to the role played by witnesses who changed their versions more
frequently than chameleons. Zahira's role in the whole case is an eye-opener
for all concerned with the administration of criminal justice. As highlighted
F at the threshold the criminal justice system is likely to be affected if persons
like Zahira are to be left unpunished. Not only the role of Zahira but also of
others whose conduct and approach before the Inquiry Officer has been
highlighted needs to be noted. The Inquiry Officer has found that Zahira
could not explain her assets and the explanations given by her in respect of
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the sources of bank deposits etc. have been found to be unacceptable. We
find no reason to take a different view.
During the course of hearing, we had asked learned counsel appearing
for Zahira as to whether they would like to be heard on the question of the
consequential order, if any, if the report is accepted and Zahira is found to
H have committed contempt or to have deflected the course of justice by
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ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.]
1099
unacceptable methods. Learned counsel for Zahira stated that they would not A
like to make statements in that regard and would only stress on the report·
being not accepted.
Zahira has committed contempt of this Court
Parliament by virtue of Entry 77 List I is competent to enact a law B
relating to the powers of the Supreme Court with regard to contempt of itself
and such a law may prescribe the nature of punishment which may be imposed
on a conlemner by virtue of the provisions of Article 129 read with Article
142(2) of the Constitution oflndia, 1950. Since, no such law has been enacted
by Parliament, the nature of punishment prescribed under the Contempt of C
Courts Act, 1971 may act as a guide for the Supreme Court but the extent
of punishment as prescribed under that Act can apply only to the High Courts,
because the 1971 Act ipso facto does not deal with the contempt jurisdiction
of the Supreme Court, except that Section 15 of the Act prescribes procedural
mode for taking cognizance of criminal contempt by the Supreme Court also.
Section 15, however, is not a substantive provision conferring contempt D
jurisdiction.