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CASE NO.: Appeal (crl.)  446-449 of 2004

PETITIONER: Zahira Habibullah Sheikh & Anr

RESPONDENT: State of Gujarat & Ors

DATE OF JUDGMENT: 08/03/2006

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T CRIMINAL MIS. PETITION NOS.6658-6661 OF 2004 IN  CRIMINAL APPEAL NOS. 446-449 OF 2004

ARIJIT PASAYAT, J.

       The case at hand immediately brings into mind two  stanzas (14 and 18) of Eighth Chapter of Manu Samhita  dealing with role of witnesses. They read as follows:                 "Stanza 14                         "Jatro dharmo hyadharmena                                 Satyam Jatranrutenacha                          Hanyate prekshyamananam                                 Hatastrata Sabhasadah"

       (Where in the presence of Judges "dharma" is  overcome by "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 hereinafter referred to as ’Zahira and Another  namely, Teesta Setelwad’ and another appeal filed by the State  of Gujarat. In the appeals filed before this Court, the basic  focus was on the absence of an atmosphere conducive to fair  trial. Zahira who was projected as the star witness made a  grievance that she was intimidated, threatened and coerced to  depart from the truth and to make statement in Court which  did  not reflect the reality. The trial Court on the basis of the  statements made by the witnesses in Court directed acquittal  of the accused persons. Before the Gujarat High Court an  application under Section 391 of the Code of Criminal  Procedure, 1973 (in short the ’Code’)  highlighting the  necessity for accepting additional evidence  was filed. The  foundation was the statement made by Zahira. The High Court

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did not accept the prayer and that is why the appeals came to  be filed in this Court. By judgment dated 12th April, 2004 in  Zahira Habibullah Sheikh & Anr. v. State of Gujarat and Ors.  [(2004) 4 SCC 158],  the following directions were given: "75.    Keeping in view the peculiar  circumstances of the case, and the ample  evidence on record, glaringly demonstrating  subversion of 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 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.  

       While the trial was on before a Court in Maharashtra  pursuant to this Court’s direction, it appears Zahira gave a  press statement in the presence of 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 made  in this Court, and before various bodies like National Human  Rights Commission. Considering the petition filed orders were  passed on 10.1.2005 and subsequently on 21.2.2005, giving    directions which read as follows:

       Order dated 10.1.2005

       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

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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 o f 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 Rohtagi, learned senior  counsel, opposed the same.  In our view, an  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 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 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.

       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 submitted, after three  months.

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Order dated 21.2.2005         Heard.

       The parties are granted four weeks’ time to  file the affidavits in terms of the earlier order  dated 10.01.2005. We make it clear that we  have not taken note of paragraph-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.

               Crl.M.P. Nos.6658-6661 of 2004

       By order dated 10.01.2005, 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 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."

       Considering the materials placed before the Inquiry  Officer, he  has 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:

(1)     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

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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, Mumbai (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.  

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 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 and deposits  made in their bank accounts. The amount involved was nearly  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 of  house received from Government through  cheque in favour of her mother

7.      Rs.50,000/-    Received by mother as & Rs.40,000/- compensation of her sister’s   death    from the Government through cheque

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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 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

10.     Rs.20,000 & Rs.25,000/-   Investment in two small plots  of 15x30ft. each by her brother Nasibullah

11.     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, Nasibullah with  Syndicate Bank, Goddev Branch, Bhayander

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 discrepancies. They read as follows:  

CHART NO. 1 Receipts S. No.  Amount Remarks 1. Rs. 50,000/- &  Rs.  40,000/- Received as compensation of her  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

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three-wheeler  5. Rs.    6,296/- Receipts from clearing zone- Received 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.1,82,000/- 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. 3,84,096 (Rs. 2,02,096 + Rs. 1,82,000).

CHART NO. 2

Investments:

S. No.  Amount Remarks 1. Rs. 45,000/- Deposited by her in the Bank  Account No. 11348 with Bank of  Baroda, Nawapura Branch at  Vadodara.  2. Rs. 52,045/- Deposits in a joint account No.  16754 with her brother,  Nasibullah with Syndicate Bank,  Goddev Branch, Bhayander.  3. Rs.1,37,384/- Deposits in her brother’s  account No. 16667 with  Syndicate Bank, Goddev Branch,  Bhayander.  4. Rs. 1,42,256/- Deposits in her mother’s account  No. 16669 with Syndicate Bank,  Goddev Branch, Bhayander.  5. Rs.    73,000/- Purchase of two plots and  construction to the tune of Rs.  66,000/- and spent Rs. 7,000/-  on renovation of best bakery  building.  6. Rs.    60,000/- Invested against a flat of Bombay  7. Rs.    48,000/- Deposited on 14.5.2003 with

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Bank account (A/c. No. 2037) of  Sh. Nafitullah. 8. Rs.    30,727/- Mother’s account (A/c. No. 8881) Total Rs. 5,88,412/-

-       Difference: Investments \026 Receipts Rs. 5,88,412 \026 Rs.  2,02,096 = Rs. 3,86,316/- -       If Rs. 1,82,000/- is also included as receipts then the  difference is = Rs. 2,04,316/-.

       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  also played a role in reaching at an agreement.  However, the element 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  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 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 linked 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 distortion of facts.  (2)     No cross examination of the witnesses whom the  Inquiry Officer has examined was permitted.  (3)     There was no transparent procedure adopted and  the agreed procedure was never followed.  (4)     There was lack of fair objective and reasonable  approach. The pre-requisites of an objective enquiry   were missing. There was no intelligent appreciation  of facts.  (5)     The Inquiry Officer appeared to be guided by Teesta  Setalwad. The conclusion that Zahira had  approached this Court for a fresh trial is wrong.  (6)     The request for examining the Chairman, NHRC

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was not accepted  without indicating any reason.  (7)      Zahira was not only the person who had made  departure from her stand purportedly recorded  during investigation, there were others but no effort  was made to take any action against them.   Though  many persons had died or injured, Citizen for  Justice and Peace and its functionaries never  bothered to take up their cases. It is surprising  why  they only chose Zahira.  (8)     The petition filed before this Court was not in fact  signed by Zahira but was signed by Teesta and the  mere fact that she had filed a Vakalatnama would  not make her responsible for the statements made  in the affidavit.  (9)     Upto the point of time of the Press Conference  Zahira was under the control of Teesta and she was  a mere puppet in her hands and 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 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.

       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 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  Sudhir Sinha, Commissioner of Police, to attend the  proceedings before the Inquiry Committee clearly show the  partisan approach. The role of the State 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.

       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

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was either telling the truth or making false statement. Merely  stating that she was acting as a puppet in the hands of Teesta  is not sufficient. Much has been made by learned counsel for  Zahira about some observations made by Inquiry Officer in his  report. A bare reading of the observations makes it clear that  what is being submitted by learned counsel for Zahira is by  reading observations out of context.  

       The procedure adopted during enquiry has been  characterized to be unfair and not fair and transparent  procedure. On a bare perusal of the proceedings of the  enquiry, it is clear that the procedure adopted was quite  transparent. The proceedings were conducted in the presence  of learned counsel for the parties and/or the parties  themselves.  After the questions were asked by the Inquiry  Officer, learned counsel and the parties were asked if any  further questions were to be asked and as the records revealed  whenever any question was suggested that was asked.  Grievance is made that scope for "cross examination" was not  given. That according to us is really of no consequence. What  questions in "cross examination" by 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 a witness by the Inquiry  Officer,  it is not open for him or her to say that opportunity  for "cross examination" was not given.  A further grievance is  made that a request to call the Chairman, 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 this Court) and several members which  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 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.

       The other pleas which have been enumerated above do  not in any way affect credibility or acceptability of the report.  The allegation that the Inquiry 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 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 has been filed  by Zahira and 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 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 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

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Mumbai where the trial is stated to be going on and the effect  of her statement made during trial shall be considered in the  trial itself. Acceptance of the report in the present proceedings  cannot have any determinative role in the trial. Serious  questions arise as to the role played by witnesses who  changed their versions more frequently than chameleons.   Zahira’s role in the whole case is an eye-opener for all  concerned with the administration of criminal justice. As  highlighted at the threshold the criminal justice system is  likely to be affected if persons like Zahira are to be left  unpunished. Not only the role of Zahira but also of others  whose conduct and approach before the Inquiry Officer has  been highlighted needs to be noted. The Inquiry Officer has  found that Zahira could not explain her assets and the  explanations given by her in respect of the sources of bank  deposits etc. have been found to be unacceptable. We find no  reason to take a different view.  

       During the course of hearing, we had asked learned  counsel appearing for Zahira as to whether they would like to  be heard on the question of the consequential order, if any, if  the report is accepted and Zahira is found to have committed  contempt or to have deflected the course of justice by  unacceptable methods. Learned counsel for Zahira stated that  they would not 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 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 contemner  by virtue of the provisions of Article 129 read with Article  142(2) of the Constitution of India, 1950. Since, no such law  has been enacted by Parliament, the nature of punishment  prescribed under the Contempt of 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 jurisdiction. The judgment in Sukhdev Singh Sodhi  v. Chief Justice and Judges of the PEPSU High Court  (AIR  1954 SC 186) as regards the extent of "maximum punishment"  which can be imposed upon a contemner must, therefore, be  construed as dealing with the powers of the High Courts only  and not of this Court in that behalf.  In Supreme Court Bar  Association v. Union of India and Anr. (AIR 1998 SC 1895),   this Court expressed no final opinion on that question since  that issue, strictly speaking, did not arise for decision in that  case. The question regarding the restriction or limitation on  the extent of punishment, which this Court may award while  exercising its contempt jurisdiction, it was observed,  may be  decided in a proper case, when so raised.  We may note that a  three Judge Bench in Suo Motu Contempt Petition 301 of  2003 by judgment dated 19.12.2003 in re: Sri Pravakar  Behera (2003 (10) SCALE 1726) imposed cost of Rs.50,000/-.  

 The complex pattern of life which is never static  requires a fresher outlook and a timely and vigorous moulding  of old precepts to some new conditions, ideas and ideals.  If  the Court acts contrary to the role it is expected to play, it will

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be destruction of the fundamental edifice on which justice  delivery system stands. People for whose benefit the Courts  exists shall start doubting the efficacy of the system.  Justice  must be rooted in confidence and confidence is destroyed  when right minded people go away thinking that "the Judge  was biased".  (Per Lord Denning MR in Metropolitan Properties  Ltd. v. Lannon (1968) 3 All ER 304 (CA). The perception may  be wrong about the judge’s bias, but the Judge concerned  must be careful to see that no such impression gains ground.    Judges like Ceaser’s wife should be above suspicion (Per  Bowen L.J. in Lesson v. General Council of Medical Education  (1890)  43 Ch.D. 366).

       By not acting in the expected manner a judge exposes  himself to unnecessary criticism.  At the same time the Judge  is not to innovative at pleasure.  He is not a Knight-errant  roaming at will in pursuit of his own ideal of beauty or of  goodness, as observed by Cardozo in "The Nature of Judicial  Process".   

       It was significantly said that law, to be just and fair has  to be seen devoid of flaw. It has to keep promise to justice and  it cannot stay petrified and sit non-challantly. The law should  not be seen to sit by limply, while those who defy it go free and  those who seek its protection loose hope (See Jennison v.  Backer (1972 (1) All ER 1006). Increasingly, people are  believing as observed by SALMON quoted by Diogenes Laertius  in "Lives of the Philosophers"  laws are like spiders’ webs: if  some light or powerless thing falls into them, it is caught, but  a bigger one can break through and get away".  Jonathan  Swift, in his "Essay on the Faculties of the Mind" said in  similar lines: "Laws are like cobwebs, which may catch small  flies, but let wasps and hornets break through".   As has been noticed earlier in the earlier case (reported in  2004 (4) SCC 158), the role to be played by Courts, witnesses,  investigating officers, public prosecutors has to be focused,  more particularly when eyebrows are raised about their roles.

In this context, reference may be made to Section 311 of  the Code which reads as follows:  

"311. Power to summon material witness, or  examine person present.   Any Court may, at any stage of any inquiry,  trial or other proceeding under this Code,  summon any person as a witness or examine  any person in attendance, though not  summoned as a witness or recall and re- examine any person already examined, and the  Court shall summon and examine or recall  and re-examine any such person if his  evidence appears to it to be essential to the  just decision of the case."  

The section is manifestly in two parts. Whereas the word used  in the first part is "may", the second part uses "shall". In  consequences, the first part gives purely discretionary  authority to a Criminal Court and enables it at any stage of an  enquiry, trial or proceeding under the Code (a) to summon any  one as a witness, or (b) to examine any person present in  Court, or (c) to recall and re-examine any person whose  evidence has already been recorded. On the other hand, the

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second part is mandatory and compels the Court to take any  of the aforementioned steps if the new evidence appears to it  essential to the just decision of the case. This is a  supplementary provision enabling, and in certain  circumstances imposing on the Court the duty of examining a  material witness who would not be otherwise brought before it.   It is couched in the widest possible terms and calls for no  limitation, either with regard to the stage at which the powers  of the Court should be exercised, or with regard to the manner  in which it should be exercised. It is not only the prerogative  but also the plain duty of a Court to examine such of those  witnesses as it considers absolutely necessary for doing justice  between the State and the subject. There is a duty cast upon  the Court to arrive at the truth by all lawful means and one of  such means is the examination of witnesses of its own accord  when for certain obvious reasons either party is not prepared  to call witnesses who are known to be in a position to speak   important relevant facts.  

The object underlying Section 311 of the Code  is that  there may not be failure of justice on account of mistake of  either party in bringing the valuable evidence on record or  leaving ambiguity in the statements of the witnesses examined  from either side. The determinative factor is whether it is  essential to the just decision of the case. The section is not  limited only for the benefit of the accused, and it will not be an  improper exercise of the powers of the Court to summon a  witness under the Section merely because the evidence  supports the case for the prosecution and not that of the  accused. The section is a general section which applies to all  proceedings, enquiries and trials under the Code and  empowers Magistrate to issue summons to any witness at any  stage of such proceedings, trial or enquiry. In Section 311 the  significant expression that occurs is "at any stage of inquiry or  trial or other proceeding under this Code".  It is, however, to  be borne in mind that whereas the section confers a very wide  power on the Court on summoning witnesses, the discretion  conferred is to be exercised judiciously, as the wider the power  the greater is the necessity for application of judicial mind.  

As indicated above, the Section is wholly discretionary.  The second part of it imposes upon the Magistrate an  obligation:  it is, that the Court shall summon and examine all  persons whose evidence appears to be essential to the just  decision of the case. It is a cardinal rule in the law of evidence  that the best available evidence should be brought before the  Court. Sections 60, 64 and 91 of the Indian Evidence Act,  1872 (in short, ’Evidence Act’) are based on this rule. The  Court is not empowered under the provisions of the Code to  compel either the prosecution or the defence to examine any  particular witness or witnesses on their side. This must be left  to the parties. But in weighing the evidence, the Court can  take note of the fact that the best available evidence has not  been given, and can draw an adverse inference. The Court will  often have to depend on intercepted allegations made by the  parties, or on inconclusive inference from facts elicited in the  evidence. In such cases, the Court has to act under the second  part of the section. Sometimes the examination of witnesses as  directed by the Court may result in what is thought to be  "filling of loopholes". That is purely a subsidiary factor and  cannot be taken into account. Whether the new evidence is  essential or not must of course depend on the facts of each  case, and has to be determined by the Presiding Judge.  

The object of the Section 311 is to bring on record

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evidence not only from the point of view of the accused and the  prosecution but also from the point of view of the orderly  society. If a witness called by Court gives evidence against the  complainant he should be allowed an opportunity to cross- examine. The right to cross-examine a witness who is called by  a Court arises not under the provision of Section 311, but  under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness  summoned by the Court could not be termed a witness of any  particular party, the Court should give the right of cross- examination to the complainant. These aspects were  highlighted in Jagat Rai v. State of Maharashtra, (AIR 1968 SC  178).     Right from the inception of the judicial system it has  been accepted that discovery, vindication and establishment of  truth are the main purposes underlying existence of Courts of  justice. The operative principles for a fair trial permeate the  common law in both civil and criminal contexts. Application of  these principles involves a delicate judicial balancing of  competing interests in a criminal trial, the interests of the  accused and the public and to a great extent that of the victim  have to be weighed not losing sight of the public interest  involved in the prosecution of persons who commit offences.  In 1846, in a judgment which Lord Chancellor Selborne  would later describe as "one of the ablest judgments of one of  the ablest judges who ever sat in this court," Vice-Chancellor  Knight Bruce said :  "The 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 the  prevailing community standards."  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  principles afterwards ..... It is only after a  series of determination on the same subject- matter, that it becomes necessary to "reconcile  the cases", as it is called, that is, by a true

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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 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 any every step."  

The principle of fair trial now informs and energizes  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 impart and societal needs and even so many  powerful balancing factors which may come in the way of  administration of criminal justice system.  As will presently appear, the principle of a fair trial  manifests itself in virtually every aspect of our practice and  procedure, including the law of evidence. There is, however, an  overriding and, perhaps, unifying principle. As Deane, J. put  it:  "It is desirable that the requirement of fairness  be separately identified since it transcends the  context of more particularized legal rules and  principles and provides the ultimate rationale  and touchstone of the rules and practices  which the common law requires to be observed  in the administration of the substantive  criminal law."  

This Court has often emphasised that in a criminal case  the fate of the proceedings cannot always be left entirely in the  hands of the parties, crime being public wrong in breach and  violation of public rights and duties, which affect the whole  community as a community and are harmful to the society in  general. The concept of fair trial entails familiar 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.  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

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of law. It has to be unmistakably understood that a trial which  is primarily aimed at ascertaining the truth has to be fair to all  concerned. There can be no analytical, all comprehensive or  exhaustive definition of the concept of a fair trial, and it may  have to be determined in seemingly infinite variety of actual  situations with the ultimate 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 a Nelson’s eye 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.  A criminal trial is a judicial examination of the issues in  the case and its purpose is to arrive at a judgment on an issue  as to a fact or relevant facts which may lead to the discovery of  the fact issue and obtain proof of such facts at which the  prosecution and the accused have arrived by their pleadings;  the controlling question being the guilt or innocence of the  accused. Since the object is to mete out justice and to convict  the guilty and protect the innocent, the trial should be a  search for the truth and not a bout over technicalities, and  must be conducted under such rules as will protect the  innocent, and punish the 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.  

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.  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.  "Witnesses" as Bentham said: are the eyes and ears of  justice. Hence, the importance and primary 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  ingeniously adopted to smother and stifle truth and realities

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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 of the edifice of rule of law, enshrined  and jealously guarded and protected by the Constitution.  There comes the need for protecting the witness. Time has  come when serious and undiluted thoughts are to be bestowed  for protecting witnesses so that ultimate truth is presented  before the Court and justice triumphs and that the trial is not  reduced to a mockery. Doubts are raised about the roles of  investigating agencies. Consequences of defective investigation  have been elaborated in Dhanraj Singh @ Shera and Ors. v.  State of Punjab (JT 2004(3) SC 380). It was observed as  follows: "5. In the case of a defective investigation the  Court has to be circumspect in evaluating the  evidence. But it would not be right in  acquitting an accused person solely on  account of the defect; to do so would  tantamount to playing into the hands of the  investigating officer if the investigation is  designedly defective. (See Karnel Singh v. State  of M.P. (1995 (5) SCC 518).  

6.      In Paras Yadav and Ors. v. State of Bihar  (1999 (2) SCC 126) it was held that if the lapse  or omission is committed by the investigating  agency or because of negligence the  prosecution evidence is required to be  examined de hors such omissions to find out  whether the said evidence is reliable or not.  The contaminated conduct of officials should  not stand on the way of evaluating the  evidence by the courts; otherwise the designed  mischief would be perpetuated and justice  would be denied to the complainant party.  

7.      As was observed in Ram Bihari Yadav v.  State of Bihar and Ors. (1998 (4) SCC 517) if  primacy is given to such designed or negligent  investigation, to the omission or lapses by  perfunctory investigation or omissions, the  faith and confidence of the people would be  shaken not only in the Law enforcing agency  but also in the administration of justice. The  view was again re-iterated in Amar Singh v.  Balwinder Singh and Ors. (2003 (2) SCC 518)".          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 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

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from this requirement because of any extraneous factors like,  caste, creed, religion, political belief or ideology. Every State is  supposed to know these fundamental requirements and this  needs no retaliation. We can only say this with regard to the  criticism levelled against the State of Gujarat.  Some legislative  enactments like the Terrorist and Disruptive Activities  (Prevention) Act, 1987 (in short the "TADA Act") have taken  note of the reluctance shown by witnesses to depose against  people with muscle power, money power or political power  which has become the order of the day. If 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.  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, efforts should be  to ensure fair trial where the accused and the prosecution  both get a fair deal. Public interest in the proper  administration of justice must be given as much importance if  not more, as the interest of the Individual accused. In this  courts have a vital role to play.          In the aforesaid background, we direct as follows:

(1)     Zahira is sentenced to undergo simple imprisonment for  one year and to pay cost of Rs.50,000/- and in case of  default of payment within two months, she shall suffer  further imprisonment of one year;  (2)     Her assets including bank deposits shall remain attached  for a period of three months. The Income Tax Authorities  are directed to initiate proceedings requiring her to  explain the sources of acquisition of various assets and  the expenses met by her during the period from 1.1.2002  till today. It is made clear that any observation made  about her having not satisfactorily explained the  aforesaid aspects would not be treated as conclusive. The  proceedings shall be conducted in accordance with law.  The Chief Commissioner, Vadodara is directed to take  immediate steps for initiation of appropriate proceedings.  It shall be open to Income tax authorities to direct  continuance of the attachment in accordance with law. If  so advised, the Income Tax Authorities shall also require  Madhu Srivastava and Bhattoo Srivastava to explain as  to why the claim as made in the VCD of paying money  shall not be further enquired into and if any tangible  material comes to surface, appropriate action under the  Income Tax Law shall be taken notwithstanding the  findings recorded by the Inquiry Officer that there is no  acceptable material to show that they had paid money, as  claimed, to Zahira. We make it clear that we are not  directing initiation of proceedings as such, but leaving  the matter to the Income Tax Authorities to take a  decision. The Trial Court shall decide the matter before it  without being influenced by any finding/observation  made by the Inquiry Officer or by the fact that we have  accepted the report and directed consequential action.  

       The applications are accordingly disposed of.