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

PETITIONER: Zahira Habibulla H Sheikh and Anr.                       

RESPONDENT: State of Gujarat and Ors.                                

DATE OF JUDGMENT: 12/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT  

JUDGMENT: J U D G M E N T (Arising out of SLP(Crl.)Nos. 538-541/2004) WITH CRIMINAL APPEAL NOS.450-452/2004 (Arising out of SLP (Crl.)Nos. 1039-1041/2004)

ARIJIT PASAYAT,J         Leave granted.         The present appeals have several unusual features and  some of them pose very serious questions of far reaching  consequences. The case is commonly to be known as "Best  Bakery Case". One of the appeals is by Zahira who claims to  be an eye-witness to macabre killings allegedly as a result  of communal frenzy. She made statements and filed affidavits  after completion of trial and judgment by the trial Court,  alleging that during trial she was forced to depose falsely  and turn hostile on account of threats and coercion. That  raises an important issue regarding witness protection  besides the quality and credibility of the evidence before  Court. The other rather unusual question interestingly  raised by the State of Gujarat itself relates to improper  conduct of trial by the public prosecutor. Last, but not the  least that the role of the investigating agency itself was  perfunctory and not impartial. Though its role is perceived  differently by the parties, there is unanimity in their  stand that it was tainted, biased and not fair. While the  accused persons accuse it for alleged false implication, the  victims’ relatives like Zahira allege its efforts to be  merely to protect the accused.  

       The appeals are against judgment of the Gujarat High  Court in Criminal Appeal No. 956 of 2003 upholding acquittal  of respondents-accused by the trial Court.  Along with said  appeal, two other petitions namely Criminal Miscellaneous  Application No. 10315 of 2003 and Criminal Revision No. 583  of 2003 were disposed of. The prayers made by the State for  adducing additional evidence under Section 391 of the Code  of Criminal Procedure, 1973 (in short the ’Code’), and/or  for directing retrial were rejected. Consequentially, prayer  for examination of witnesses under Section 311 of the Code  was also rejected.

       In a nutshell the prosecution version which led to  trial of the accused persons is as follows:

       Between 8.30 p.m. of 1.3.2002 and 11.00 a.m. of  2.3.2002, a business concern known as "Best Bakery" at  Vadodara was burnt down by an unruly mob of large number of

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people. In the ghastly incident 14 persons died. The attacks  were stated to be a part of retaliatory action to avenge  killing of 56 persons burnt to death in the Sabarmati  Express. Zahira was the main eye-witness who lost family  members including helpless women and innocent children in  the gruesome incident. Many persons other than Zahira were  also eye-witnesses. Accused persons were the perpetrators of  the crime. After investigation charge sheet was filed in  June 2002.  

       During trial the purported eye-witnesses resiled from  the statements made during investigation. Faulty and biased  investigation as well as perfunctory trial were said to have  marred the sanctity of the entire exercise undertaken to  bring the culprits to books. By judgment dated 27.6.2003,  the trial Court directed acquittal of the accused persons.  

       Zahira appeared before National Human Rights Commission  (in short the ’NHRC’) stating that she was threatened by  powerful politicians not to depose against the accused  persons. On 7.8.2003 an appeal not up to the mark and  neither in conformity with the required care, appears to  have been filed by the State against the judgment of  acquittal before the Gujarat High Court. NHRC moved this  Court and its Special leave petition has been treated as a  petition under Article 32 of the Constitution of India, 1950  (in short the ’Constitution’). Zahira and another  organisation - Citizens for Justice and Peace filed SLP  (Crl.) No. 3770 of 2003 challenging judgment of acquittal  passed by the trial Court. One Sahera Banu (sister of  appellant-Zahira) filed the afore-noted Criminal Revision  No. 583 of 2003 before the High Court questioning the  legality of the judgment returning a verdict of acquittal.  Appellant-State filed an application (Criminal Misc.  Application NO.7677 of 2003) in terms of Sections 391 and  311 of the Code for permission to adduce additional evidence  and for examination of certain persons as witness. Criminal  Miscellaneous Application No. 9825 of 2003 was filed by the  State to bring on record a document and to treat it as  corroborative piece of evidence. By the impugned judgment  the appeal, revision and the applications were dismissed and  rejected.  

       The State and Zahira had requested for a fresh trial  primarily on the following grounds:

       When a large number of witnesses have turned hostile it  should have raised a reasonable suspicion that the witnesses  were being threatened or coerced.  The public prosecutor did  not take any step to protect the star witness who was to be  examined on 17.5.2003 specially when four out of seven  injured witnesses had on 9.5.2003 resiled from the  statements made during investigation.  Zahira Sheikh - the  Star witness had specifically stated on affidavit about the  threat given to her and the reason for her not coming out  with the truth during her examination before Court on  17.5.2003.

       The public prosecutor was not acting in a manner  befitting the position held by him. He even did not request  the Trial court for holding the trial in camera when a large  number of witnesses were resiling from the statements made  during investigation.

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       The trial court should have exercised power under  section 311 of the Code and recalled and re-examined  witnesses as their evidence was essential to arrive at the  truth and a just decision in the case. The power under  Section 165 of the Indian Evidence Act, 1872 (in short the  ’Evidence Act’) was not resorted to at all and that also had  led to miscarriage of justice.

       The public prosecutor did not examine the injured  witnesses. Exhibit 36/68 was produced by the public  prosecutor which is a statement of one Rahish Khan on the  commencement of the prosecution case, though the prosecution  was neither relying on it nor it was called upon by the  accused, to be produced before the Court. The said statement  was wrongly allowed to be exhibited and treated as FIR by  the public prosecutor.

       Statement of one eye-witness was recorded on 4.3.2002  by P1 Baria at SSG Hospital, Vadodara disclosing names of  five accused persons and when he was sought to be examined  before the Court, summons were issued to this person on  27.4.2003 for examination on 9.5.2003. It could not be  served on the ground that he had left for his native place  in Uttar Pradesh.  Therefore,   fresh summons were issued on  9.6.2003 for recording his evidence on the next day i.e. on  10.6.2003, giving only one day time. When it could not be  served, then summons were issued on 13.6.2003 for remaining  present before the Court on 16.6.2003.  It could not be also  served for the same reasons. Ultimately, the public  prosecutor gave purshis for dropping him as witness and  surprisingly the same was granted by the Trial court.  This  goes to show that both the public prosecutor as well as the  court were not only oblivious but also failed to discharge  their duties. An important witness was not examined by the  prosecutor on the ground that he, Sahejadkhan Hasankhan (PW- 48) was of unsound mind. Though the witness was present, the  public prosecutor dropped him on the ground that he was not  mentally fit to depose.  When such an application was made  by the prosecution for dropping on the ground of mental  deficiency it was the duty of the learned trial Judge to at  least make some minimum efforts to find out as to whether he  was actually of unsound mind or not, by getting him examined  from the Civil Surgeon or a doctor from the Psychiatric  Department. This witness (PW-48) has received serious  injuries and the doctor Meena (PW-9) examined him. She has  not stated in her evidence that he was mentally deficient.   The police has also not reported that this witness was of  unsound mind. During investigation also it was never stated  that he was of unsound mind.  His statement was recorded on  6.3.2002.

Sahejadkhan Hasankhan - the witness was unconscious  between 2nd - 6th of March 2002. When he regained  conscious, his statement was recorded on 6.3.2002.  He gave  names of four accused persons i.e. A-5, A-6, A-8 and A-11.   This witness has also filed an affidavit before this Court  in a pending matter narrating the whole incident.  This  clearly shows that the person was not of unsound mind as was  manipulated by the prosecution to drop him.

       In the case of one Shailun Hasankhan Pathan  summons  were issued on 9.6.2003 requiring his presence on 10.6.2003  which could not be served on him.  He disclosed the names of  three accused persons i.e. A-6, A-8 and A-11.  This witness  was also surprisingly treated to be of deficient mind

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without any material and even without taking any efforts to  ascertain the truth or otherwise of such serious claims.   

       Similarly, one injured eye-witness Tufel Habibulla  Sheikh was not examined, though he had disclosed the names  of four accused i.e. A-5, A-6, A-8 and A-11.  No summons was  issued to this witness and he was not at all examined.   

Another eye witness Yasminbanu who had disclosed the  names of A-5,A-6 and A-11 was also not examined. No reason  whatsoever was disclosed for non-examination of this  witness.

       The affidavit filed by different witnesses before this  Court highlighted as to how and why they have been kept  unfairly out of trial. Lalmohamad Khudabax Shaikh (PW 15)  was hurriedly examined on 27.5.2003 though summons was  issued to him for remaining present on 6.6.2003.  No reason  has been indicated as to why he was examined before the date  stipulated.          Strangely the relatives of the accused were examined as  witnesses for the prosecution obviously with a view that  their evidence could be used to help the accused persons.

According to the appellant-Zahira there was no fair  trial and the entire effort during trial and at all relevant  times before also was to see that the accused persons got  acquitted. When the investigating agency helps the accused,  the witnesses are threatened to depose falsely and  prosecutor acts in a manner as if he was defending the  accused, and the Court was acting merely as an onlooker and  there is no fair trial at all, justice becomes the victim.   

       According to Mr. Sibal, learned counsel appearing for  the appellant Zahira, the High Court has not considered the  stand taken by the appellant and the State of Gujarat in the  proper perspective. Essentially, two contentions were raised   by the State before the High Court, in addition to the  application filed by the appellant-Zahira highlighting  certain serious infirmities in the entire exercise  undertaken. The State had made prayers for acceptance of  certain evidence under Section 391 of the Code read with  Section 311 of the Code. So far as the acceptance of  additional evidence is concerned, the same related to  affidavits filed by some injured witnesses who on account of  circumstances indicated in the affidavits were forced not to  tell the truth before the trial Court, making justice a  casualty. The affidavits in essence also highlighted the  atmosphere that prevailed in the trial Court. The affidavits  in fact were not intended to be used as the evidence. A  prayer was made that the witnesses who had filed affidavits  before this Court should be examined, so that the truth can  be brought on record. The High Court surprisingly accepted  the extreme stand of learned counsel for the accused persons  that under Section 386 of the Code the Court can only peruse  the record of the case brought before it in terms of Section  385(2) of the Code and the appeal has to be decided on the  basis of such record only and no other record can be  entertained or taken into consideration while deciding the  appeal. It was the stand of learned counsel for the accused  before the High Court that by an indirect method certain  materials were sought to be brought on record which should  not be permitted. The High Court while belittling and  glossing over the serious infirmities and pitfalls in the

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investigation as well as trial readily accepted the said  stand and held that an attempt was being made to bring on  record the affidavits by an indirect method, though they  were not part of the record of the trial Court.  It further  held that no one including the State can be allowed to take  advantage of its own wrong and thereby make capricious  exercise of powers in favour of the prosecution to fill in  the lacuna, overlooking completely the obligation cast on  the Courts also to ensure that the truth should not become a  casualty and substantial justice is not denied to victims as  well. With reference to these conclusions it was submitted  that the High Court did not keep in view the true scope and  ambit of Section 391 as also the need or desirability to  resort to Section 311 of the Code and virtually rendered   the provisions otiose by nullifying the very object behind  those provisions. The conclusion that the appeal can be  decided only on the basis of records brought before the High  Court in terms of Section 385(2) would render Section 391 of  the Code and other allied powers conferred upon Courts to  render justice completely nugatory.  

Further, after having held that the affidavits were not  to be taken on record, the High Court has recorded findings  regarding contents of those affidavits, and has held that  the affidavits are not truthful and false. Unfortunately,  the High Court has gone to the extent of saying that the  appellant-Zahira has been used by some persons with oblique  motives. The witnesses who filed affidavits have been termed  to be of unsound mind, untruthful and capable of being  manipulated, without any material or reasonable and concrete  basis to support such conclusions. In any event, the logic  applied by the High Court to discard the affidavits of  Zahira and others that they have fallen subsequently into  the hands of some who remained behind the curtain, can be  equally applied to accept the plea that accused or persons  acting at their behest only had created fear on the earlier  occasion before deposing in Court by threats, in the minds  of Zahira and others.  After having clearly concluded that  the investigation was faulty and there were serious doubts  about the genuineness of the investigation, it would have  been proper for the High Court to accept the prayer made for  additional evidence and/or re-trial. Abrupt conclusions  drawn about false implication not only cannot stand the test  of scrutiny but also lack judicious approach and objective  consideration, as is expected of a Court.   

Section 391 of the Code is intended to sub-serve the  ends of justice by arriving at the truth and there is no  question of filling of any lacuna in the case on hand. The  provision though a discretionary one is hedged with the  condition about the requirement to record reasons. All these  aspects have been lost sight of and the judgment, therefore,  is indefensible. It was submitted that this is a fit case  where the prayer for retrial as a sequel to acceptance of  additional evidence should be directed. Though, the re-trial  is not the only result flowing from acceptance of additional  evidence, in view of the peculiar circumstances of the case,  the proper course would be to direct acceptance of  additional evidence and in the fitness of things also order  for a re-trial on the basis of the additional evidence.

It was submitted by the appellants that in view of the  atmosphere in which the case was tried originally there  should be a direction for a trial outside the State in case  this Court thinks it so appropriate to direct, and evidence

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could be recorded by video conferencing so that a hostile  atmosphere can be avoided. It is further submitted that the  fresh investigation should be directed as investigation  already conducted was not done in a fair manner and the  prosecutor did not act fairly. If the State’s machinery  fails to protect citizen’s life, liberties and property and  the investigation is conducted in a manner to help the  accused persons, it is but appropriate that this Court  should step in to prevent undue miscarriage of justice that  is perpetrated upon the victims and their family members.  

Mr. Rohtagi, learned Additional Solicitor General  appearing for the State of Gujarat in the appeal filed by it  submitted that the application under consideration of the  High Court was in terms of Section 311 and Section 391 of  the Code. Though the nomenclature is really not material,  the prayer was to permit the affidavits to be brought on  record, admit and take additional evidence of the persons  filing the affidavits by calling/re-calling them in addition  to certain directions for re-trial if the High Court felt it  to be so necessary after considering the additional  evidence. Though there was no challenge to Zahira’s locus  standi to file an appeal, it is submitted that prayer for  re-hearing by another High Court and/or for trial outside  the State cannot be countenanced and it is nobody’s case  that the Courts in Gujarat cannot do complete justice and  such moves do not serve anybody’s purpose.   There is no proper reason indicated by the High Court  to refuse to take on record the affidavits and the only  inferable reason as it appears i.e. that the affidavits were  also filed in this Court in another proceeding is no reason  in the eye of law. Admissibility of material is one thing  and what is its worth is another thing and relates to  acceptability of the evidence. Since they were relevant,  being filed by alleged eye-witnesses, there was no basis for  the High Court to discard them. Even if the appellant-Zahira  has taken different stands as concluded by the High Court,  it was obligatory for the Court to find out as to what is  the correct stand and real truth which could have been  decided and examined by accepting the prayer for additional  evidence. The High Court has, without any material or  sufficient basis, come to hold that the FIR was manipulated,  and the fax message referred to by the State could also have  been manipulated. There is no basis for coming to such a  conclusion. There was no material before the trial Court to  conclude that the FIR was lodged by one Rahish Khan, though  the statement of appellant-Zahira was anterior in point of  time. The stand of the State was that it was relying on  Zahira’s version to be the FIR. The State had filed the  application for acceptance of additional evidence as it was  of the view that the FIR registered on the basis of Zahira’s  statement was an authentic one and no evidence aliunde was  necessary. In the absence of even any material the abrupt  conclusion about manipulation and the other conclusions of  the High Court are perverse and also contradictory in the  sense that after having said that affidavits were not to be  brought on record it went on to label it as not truthful.  The High Court should not have thrown out the application as  well as the materials sought to be brought on record even at  the threshold and yet gone on to surmise on reasons, at the  same time, professing to decide on its correctness.  

The stands taken before the High Court to justify  acceptance of additional evidence and directions for retrial

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were re-iterated.  

Mr. Sushil Kumar, learned senior counsel for the  accused submitted that it is not correct to say that  application under Section 391 of the Code was not admitted.  It was in fact admitted and rejected on merits. It is also  not correct to say that the investigation was perfunctory.  The affidavits sought to be brought on record were  considered on their own merits. While Zahira’s prayer was  for fresh investigation, the State’s appeal in essence was  for fresh trial. The four persons whose affidavits were  pressed into service were PWs 1, 6, 47 and 48. They were  examined as PWs and there was no new evidence. There can be  no re-examination on the pretext used by the State for re- trial. The original appeal filed by the State was Appeal no.  956 of 2003. There was first an amendment in September 2003,  and finally in December 2003. The stand got changed from  time to time. What essentially was urged or sought for,  related to fresh trial on the ground that investigation was  not fair. The stand taken by the State in its appeal is also  contrary to evidence on record. Though one of the grounds  seeking fresh trial was the alleged deficiencies of the  public prosecutor in conducting the trial and for not   bringing on record the contradictions with reference to the  statements recorded during investigation, in fact it has  been done. There was nothing wrong in treating statement of  Rahish Khan as the FIR. The High Court has rightly concluded  that Zahira’s statement was manipulated as if she had given  information at the first point of time which is belied by  the fact that it reached the concerned Court after three  days. The High Court after analysing the evidence has  correctly come to the conclusion that the police manipulated  in getting false witnesses to rope in wrong people as the  accused. Irrelevant and out of context submissions are said  to have been made, and grounds taken and reliefs sought for  by Zahira in her appeal.  

Mr. KTS Tulsi, learned senior counsel also appearing  for the accused persons in the appeal filed by the State  submitted that in Section 311 the key words are  "if his  evidence appears to it to be essential to the just decision  of the case". Therefore, the Court must be satisfied that  the additional evidence is necessary and it is not possible  to arrive at a just conclusion on the basis of the records.  For that purpose it has to apply its mind to the evidence  already on record and thereafter decide whether it feels any  additional evidence to be necessary. For that purpose, the  Court has to come to a prima facie conclusion that an appeal  cannot be decided on the basis of materials existing on  record. Therefore, before dealing with an application under  Section 391 the Court has to analyse the evidence already  existing. Since the High Court in the instant case has  analysed the evidence threadbare and come to the conclusion  that the trial was fair and satisfactory and a positive  conclusion has been arrived at after analysing the evidence,  the question of pressing into service Section 391 of the  Code does not arise.  

In essence three points were urged by Mr. Tulsi. They  are as follows:

       For the purpose of exercise of power under Section 391  of the Code, the Court has to come to a conclusion about the  necessity for additional evidence which only could be done  after examining evidence on record. In other words the Court

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must arrive at a conclusion that the existing material is  insufficient for the purpose of arriving at a just decision.   

       The High Court has undertaken an elaborate exercise for  the purpose of arriving at the conclusion as to whether  additional evidence was necessary after examining every  relevant aspect. It has come to a definite conclusion that  the trial of the case was fair, satisfactory and neither any  illegalities were committed nor any evidence was wrongly  accepted or rejected.  The extraneous factors have been kept  out of consideration as these may have influenced the  witnesses in changing their evidence and giving a go by to  substantive evidence tendered in Court. A need for giving  finality to trial in criminal proceedings is paramount as  otherwise prejudice is caused to the accused persons and in  fact it would be a negation of the fundamental rule of law  to make the accused to undergo trial once over which has the  effect of derailing system of justice. Elaborating the  points it is submitted that if the Court feels that  additional evidence is not necessary after analysing the  existing evidence and the nature of materials sought to be  brought in, it cannot be said that the Court has acted in a  manner contrary to law. In fact, the High Court has felt  that extraneous materials are now sought to be introduced  and it is not known as to whether the present statement of  the witnesses is correct or what was stated before the trial  Court originally was the truth. The Court analysed the  evidence of the material witnesses and noticed several  relevant factors to arrive at this conclusion. The necessity  and need for additional evidence has to be determined in the  context of the need for a just decision and it cannot be  used for filling up a lacuna. Reference is made to the  decisions of this Court in Jamatraj Kewalji Govani v. The  State of Maharashtra (1967 (3) SCR 415) and Mohanlal Shamji  Soni v. Union of India and Another (1991 Supp (1) SCC 271).  The High Court has also come to definite conclusion that the  submissions of the State and the Sahera cannot be accepted  because non-examination of certain persons was on account of  the circumstances indicated by the trial Court and that  conclusion has been arrived at after analysing the factual  background. There is no guarantee, as rightly observed by  the High Court, that the subsequent affidavits are true. On  the contrary, in the absence of any contemporary grievance  having been made before the Court about any pressure or  threat, the affidavits and the claims now sought to be made  have been rightly discarded.            

       Right from the inception of the judicial system it has  been accepted that discovery, vindication and establishment  of truth are the main purposes underlying existence of  Courts of justice. The operating principles for a fair trial  permeate the common law in both civil and criminal contexts.  Application of these principles involve a delicate judicial  balancing of competing interests in a criminal trial, the  interests of the accused and the public and to a great  extent that of the victim have to be weighed not losing  sight of the public interest involved in the prosecution of  persons who commit offences.  

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:

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"The discovery and vindication and  establishment of truth are main purposes  certainly of the existence of Courts of  Justice; still, for the obtaining of  these objects, which, however valuable  and important, cannot be usefully  pursued without moderation, cannot be  either usefully or creditably pursued  unfairly or gained by unfair means, not  every channel is or ought to be open to  them.  The practical inefficacy of  torture is not, I suppose, the most  weighty objection to that mode of  examination.. Truth, like all other good  things, may be loved unwisely - may be  pursued too keenly - may cost too  much."

The Vice-Chancellor went on to refer to paying "too great a  price... for truth". This is a formulation which has  subsequently been frequently invoked, including by Sir  Gerard Brennan. On another occasion, in a joint judgment of  the High Court, a more expansive formulation of the  proposition was advanced in the following terms: "The  evidence has been obtained at a price which is unacceptable  having regard to prevailing community standards."

       Restraints on the processes for determining the truth  are multi-faceted. They have emerged in numerous different  ways, at different times and affect different areas of the  conduct of legal proceedings. By the traditional common law  method of induction there has emerged in our jurisprudence  the principle of a fair trial. Oliver Wendell Holmes  described the process:

"It is the merit of the common law that  it decides the case first and determines  the principle afterwards ... It is only  after a series of determination on the  same subject-matter, that it becomes  necessary to "reconcile the cases", as  it s called, that is, by a true  induction to state the principle which  has until then been obscurely felt.  And  this statement is often modified more  than once by new decisions before the  abstracted general rule takes its final  shape. A well settled legal doctrine  embodies the work of many minds, and has  been tested in form as well as substance  by trained critics whose practical  interest is to resist it at every  step."

       The principle of fair trial now informs and energises  many areas of the law. It is reflected in numerous rules and  practices. It is a constant, ongoing development process  continually adapted to new and changing circumstances, and  exigencies of the situation - peculiar at times and related  to the nature of crime, persons involved - directly or  operating behind, social impact and societal needs and even  so many powerful balancing factors which may come in the way  of administration of criminal justice system.   

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       As will presently appear, the principle of a fair trial  manifests itself in virtually every aspect of our practice  and procedure, including the laws of evidence.  There is,  however, an overriding and, perhaps, unifying principle. As  Deane J put it:

"It is desirable that the requirement  of fairness be separately identified  since it transcends the content of more  particularized legal rules and  principles and provides the ultimate  rationale and touchstone of the rules  and practices which the common law  requires to be observed in the  administration of the substantive  criminal law".

                         This Court has often emphasised that in a criminal case  the fate of the proceedings cannot always be left entirely  in the hands of the parties, crimes being public wrongs in  breach and violation of public rights and duties, which  affect the whole community as a community and harmful to the  society in general. The concept of fair trial entails  familiar triangulation of interests of the accused, the  victim and the society and it is the community that acts  through the State and prosecuting agencies. Interests of  society is not to be treated completely with disdain and as  persona non grata. Courts have always been considered to  have an over-riding duty to maintain public confidence in  the administration of justice - often referred to as the  duty to vindicate and uphold the ’majesty of the law’. Due  administration of justice has always been viewed as a  continuous process, not confined to determination of the  particular case, protecting its ability to function as a  Court of law in the future as in the case before it. If a  criminal Court is to be an effective instrument in  dispensing justice, the Presiding Judge must cease to be a  spectator and a mere recording machine by becoming a  participant in the trial evincing intelligence, active  interest and elicit all relevant materials necessary for  reaching the correct conclusion, to find out the truth, and  administer justice with fairness and impartiality both to  the parties and to the community it serves. Courts  administering criminal justice cannot turn a blind eye to  vexatious or oppressive conduct that has occurred in  relation to proceedings, even if a fair trial is still  possible, except at the risk of undermining the fair name  and standing of the judges as impartial and independent  adjudicators.

       The principles of rule of law and due process are  closely linked with human rights protection. Such rights can  be protected effectively when a citizen has recourse to the  Courts of law. It has to be unmistakably understood that a  trial which is primarily aimed at ascertaining truth has to  be fair to all concerned. There can be no analytical, all  comprehensive or exhaustive definition of the concept of a  fair 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

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Nelson’s eyes to the needs of the society at large and the  victims or their family members and relatives. Each one has  an inbuilt right to be dealt with fairly in a criminal  trial. Denial of a fair trial is as much injustice to the  accused as is to the victim and the society. Fair trial  obviously would mean a trial before an impartial Judge, a  fair prosecutor and atmosphere of judicial calm. Fair trial  means a trial in which bias or prejudice for or against the  accused, the witnesses, or the cause which is being tried is  eliminated. If the witnesses get threatened or are forced to  give false evidence that also would not result in a fair  trial. The failure to hear material witnesses is certainly  denial of fair trial.  

       While dealing with the claims for the transfer of a  case under Section 406 of the Code from one State to another  this Court in Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani  Jethmalani (1979 (4) SCC 167), emphasised the necessity to  ensure fair trial, observing as hereunder: "Assurance of a fair trial is the first  imperative of the dispensation of justice and  the central criterion for the court to  consider when a motion for transfer is made  is not the hypersensitivity or relative  convenience of a party or easy availability  of legal services or like mini-grievances.  Something more substantial, more compelling,  more imperilling, from the point of view of  public justice and its attendant environment,  is necessitous if the Court is to exercise  its power of transfer. This is the cardinal  principle although the circumstances may be  myriad and vary from case to case. We have to  test the petitioner’s grounds on this  touchstone bearing in mind the rule that  normally the complainant has the right to  choose any court having jurisdiction and the  accused cannot dictate where the case against  him should be tried. Even so, the process of  justice should not harass the parties and  from that angle the court may weigh the  circumstances.          A more serious ground which disturbs us  in more ways than one is the alleged absence  of congenial atmosphere for a fair and  impartial trial. It is becoming a frequent  phenomenon in our country that court  proceedings are being disturbed by rude  hoodlums and unruly crowds, jostling, jeering  or cheering and disrupting the judicial  hearing with menaces, noises and worse. This  tendency of toughs and street roughs to  violate the serenity of court is obstructive  of the course of justice and must surely be  stamped out. Likewise, the safety of the  person of an accused or complainant is an  essential condition for participation in a  trial and where that is put in peril by  commotion, tumult or threat on account of  pathological conditions prevalent in a  particular venue, the request for a transfer  may not be dismissed summarily. It causes  disquiet and concern to a court of justice if  a person seeking justice is unable to appear,  present one’s case, bring one’s witnesses or

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adduce evidence. Indeed, it is the duty of  the court to assure propitious conditions  which conduce to comparative tranquility at  the trial. Turbulent conditions putting the  accused’s life in danger or creating chaos  inside the court hall may jettison public  justice. If this vice is peculiar to a  particular place and is persistent the  transfer of the case from that place may  become necessary. Likewise, if there is  general consternation or atmosphere of  tension or raging masses of people in the  entire region taking sides and polluting the  climate, vitiating the necessary neutrality  to hold detached judicial trial, the  situation may be said to have deteriorated to  such an extent as to warrant transfer. In a  decision cited by the counsel for the  petitioner, Bose, J., observed :  .... But we do feel that good  grounds for transfer from  Jashpurnagar are made out because  of the bitterness of local communal  feeling and the tenseness of the  atmosphere there. Public confidence  in the fairness of a trial held in  such an atmosphere would be  seriously undermined, particularly  among reasonable Christians all  over India not because the Judge  was unfair or biased but because  the machinery of justice is not  geared to work in the midst of such  conditions. The calm detached  atmosphere of a fair and impartial  judicial trial would be wanting,  and even if justice were done it  would not be "seen to be done". (G.  X. Francis v. Banke Behari Singh,  AIR 1958 SC 309)          Accepting this perspective we must  approach the facts of the present case  without excitement, exaggeration or eclipse  of a sense of proportion. It may be true that  the petitioner attracts a crowd in Bombay.  Indeed, it is true of many controversial  figures in public life that their presence in  a public place gathers partisans for and  against, leading to cries and catcalls or  ’jais’ or ’zindabads’. Nor is it unnatural  that some persons may have acquired, for a  time a certain quality of reputation,  sometimes notoriety, sometimes glory, which  may make them the cynosure of popular  attention when they appear in cities even in  a court. And when unkempt crowds press into a  court hall it is possible that some pushing,  some nudging, some brash ogling or angry  staring may occur in the rough and tumble  resulting in ruffled feelings for the victim.  This is a far cry from saying that the peace  inside the court has broken down, that calm  inside the court is beyond restoration, that  a tranquil atmosphere for holding the trial  is beyond accomplishment or that operational

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freedom for judge, parties, advocates and  witnesses has creased to exist. None of the  allegations made by the petitioner, read in  the pragmatic light of the counter-averments  of the respondent and understood  realistically, makes the contention of the  counsel credible that a fair trial is  impossible. Perhaps, there was some rough  weather but it subsided, and it was a storm  in the tea cup or transient tension to  exaggerate which is unwarranted. The  petitioner’s case of great insecurity or  molestation to the point of threat to life  is, so far as the record bears out, difficult  to accept. The mere word of an interested  party is insufficient to convince us that she  is in jeopardy or the court may not be able  to conduct the case under conditions of  detachment, neutrality or uninterrupted  progress. We are disinclined to stampede  ourselves into conceding a transfer of the  case on this score, as things stand now.          Nevertheless, we cannot view with  unconcern the potentiality of a flare up and  the challenge to a fair trial, in the sense  of a satisfactory participation by the  accused in the proceedings against her. Mob  action may throw out of gear the wheels of  the judicial process. Engineered fury may  paralyse a party’s ability to present his  case or participate in the trial. If the  justice system grinds to a halt through  physical manoeuvres or sound and fury of the  senseless populace the rule of law runs  aground. Even the most hated human anathema  has a right to be heard without the rage of  ruffians or huff of toughs being turned  against him to unnerve him as party or  witness or advocate. Physical violence to a  party, actual or imminent, is reprehensible  when he seeks justice before a tribunal.  Manageable solutions must not sweep this  Court off its feet into granting an easy  transfer but uncontrollable or perilous  deterioration will surely persuade us to  shift the venue. It depends. The frequency of  mobbing manoeuvres in court precincts is a  bad omen for social justice in its wider  connotation. We, therefore, think it  necessary to make a few cautionary  observations which will be sufficient, as we  see at present, to protect the petitioner and  ensure for her a fair trial.  

A criminal trial is a judicial examination of the  issues in the case and its purpose is to arrive at a  judgment on an issue as a fact or relevant facts which may  lead to the discovery of the fact issue and obtain proof of  such facts at which the prosecution and the accused have  arrived by their pleadings; the controlling question being  the guilt or innocence of the accused. Since the object is  to mete out justice and to convict the guilty and protect  the innocent, the trial should be a search for the truth and  not a bout over technicalities, and must be conducted under  such rules as will protect the innocent, and punish the

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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 Benthem said: are the eyes and ears of  justice. Hence, the importance and primacy of the quality of  trial process. If the witness himself is incapacitated from  acting as eyes and ears of justice, the trial gets putrefied  and paralysed, and it no longer can constitute a fair trial.  The incapacitation may be due to several factors like the  witness being not in a position for reasons beyond control  to speak the truth in the Court or due to negligence or  ignorance or some corrupt collusion. Time has become ripe to  act on account of numerous experiences faced by Courts on  account of frequent turning of witnesses as hostile, either  due to threats, coercion, lures and monetary considerations  at the instance of those in power, their henchmen and  hirelings, political clouts and patronage and innumerable  other corrupt practices ingenuously adopted to smoother and  stifle truth and realities coming out to surface rendering  truth and justice, to become ultimate casualties. Broader  public and societal interests require that the victims of  the crime who are not ordinarily parties to prosecution and  the interests of State represented by their prosecuting  agencies do not suffer even in slow process but irreversibly  and irretrievably, which if allowed would undermine and  destroy public confidence in the administration of justice,  which may ultimately pave way for anarchy, oppression and  injustice resulting in complete breakdown and collapse of  the edifice of rule of law, enshrined and jealously guarded  and protected by the Constitution.  There comes the need for  protecting the witness. Time has come when serious and  undiluted thoughts are to be bestowed for protecting  witnesses so that ultimate truth is presented before the  Court and justice triumphs and that the trial is not reduced  to mockery. The State has a definite role to play in  protecting the witnesses, to start with at least in  sensitive cases involving those in power, who has political  patronage and could wield muscle and money power, to avert  trial getting tainted and derailed and truth becoming a  casualty. As a protector of its citizens it has to ensure  that during a trial in Court the witness could safely depose  truth without any fear of being haunted by those against  whom he has deposed. Some legislative enactments like the  Terrorist and Disruptive Activities (Prevention) Act, 1987  (in short the ’TADA Act’) have taken note of the reluctance  shown by witnesses to depose against dangerous criminals- terrorists. In a milder form also the reluctance and the

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hesitation of witnesses to depose against people with muscle  power, money power or political power has become the order  of the day. If ultimately truth is to be arrived at, the  eyes and ears of justice have to be protected so that the  interests of justice do not get incapacitated in the sense  of making the proceedings before Courts mere mock trials as  are usually seen in movies.  

       Legislative measures to emphasise prohibition against  tampering with witness, victim or informant have become the  imminent and inevitable need of the day. Conducts which  illegitimately affect the presentation of evidence in  proceedings before the Courts have to be seriously and  sternly dealt with. There should not be any undue anxiety to  only protect the interest of the accused. That would be  unfair as noted above to the needs of the society. On the  contrary, the efforts should be to ensure fair trial where  the accused and the prosecution both get a fair deal. Public  interest in the proper administration of justice must be  given as much importance if not more, as the interests of  the individual accused. In this courts have a vital role to  play.                                                                                                                                                               The Courts have to take a participatory role in a  trial. They are not expected to be tape recorders to record  whatever is being stated by the witnesses. Section 311 of  the Code and Section 165 of the Evidence Act confer vast and  wide powers on Presiding Officers of Court to elicit all  necessary materials by playing an active role in the  evidence collecting process. They have to monitor the  proceedings in aid of justice in a manner that something,  which is not relevant, is not unnecessarily brought into  record. Even if the prosecutor is remiss in some ways, it  can control the proceedings effectively so that ultimate  objective i.e. truth is arrived at. This becomes more  necessary where the Court has reasons to believe that the  prosecuting agency or the prosecutor is not acting in the  requisite manner. The Court cannot afford to be wishfully or  pretend to be blissfully ignorant or oblivious to such  serious pitfalls or dereliction of duty on the part of the  prosecuting agency.  The prosecutor who does not act fairly  and acts more like a counsel for the defence is a liability  to the fair judicial system, and Courts could not also play  into the hands of such prosecuting agency showing  indifference or adopting an attitude of total aloofness.           The power of the Court under Section 165 of the   Evidence Act is in a way complementary to its power under  Section 311 of the Code. The section consists of two parts  i.e (i) giving a discretion to the Court to examine the  witness at any stage and (ii) the mandatory portion which  compels the Court to examine a witness if his evidence  appears to be essential to the just decision of the Court.  Though the discretion given to the Court is very wide, the  very width requires a corresponding caution. In Mohan Lal v.  Union of India (1991 Supp (1) SCC 271) this Court has  observed, while considering the scope and ambit of Section  311, that the very usage of the word such as, ’any Court’  ’at any stage’, or ’any enquiry or trial or other  proceedings’ ’any person’ and ’any such person’ clearly  spells out that the Section has expressed in the widest  possible terms and do not limit the discretion of the Court  in any way. However, as noted above, the very width requires  a corresponding caution that the discretionary powers should

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be invoked as the exigencies of justice require and  exercised judicially with circumspection and consistently  with the provisions of the Code. The second part of the  section does not allow any discretion but obligates and  binds the Court to take necessary steps if the fresh  evidence to be obtained is essential to the just decision of  the case - ’essential’, to an active and alert mind and not  to one which is bent to abandon or abdicate. Object of the  Section is to enable the Court to arrive at the truth  irrespective of the fact that the prosecution or the defence  has failed to produce some evidence which is necessary for a  just and proper disposal of the case. The power is exercised  and the evidence is examined neither to help the prosecution  nor the defence, if the Court feels that there is necessity  to act in terms of Section 311 but only to subserve the  cause of justice and public interest. It is done with an  object of getting the evidence in aid of a just decision and  to uphold the truth.   

       It is not that in every case where the witness who had  given evidence before Court wants to change his mind and is  prepared to speak differently, that the Court concerned  should readily accede to such request by lending its  assistance. If the witness who deposed one way earlier comes  before the appellate Court with a prayer that he is prepared  to give evidence which is materially different from what he  has given earlier at the trial with the reasons for the  earlier lapse, the Court can consider the genuineness of the  prayer in the context as to whether the party concerned had  a fair opportunity to speak the truth earlier and in an  appropriate case accept it. It is not that the power is to  be exercised in a routine manner, but being an exception to  the ordinary rule of disposal of appeal on the basis of  records received in exceptional cases or extraordinary  situation the Court can neither feel powerless nor abdicate  its duty to arrive at the truth and satisfy the ends of  justice. The Court can certainly be guided by the metaphor,  separate the grain from the chaff, and in a case which has  telltale imprint of reasonableness and genuineness in the  prayer, the same has to be accepted, at least to consider  the worth, credibility and the acceptability of the same on  merits of the material sought to be brought in.           Ultimately, as noted above, ad nauseam the duty of the  Court is to arrive at the truth and subserve the ends of  justice. Section 311 of the Code does not confer any party  any right to examine, cross-examine and re-examine any  witness. This is a power given to the Court not to be merely  exercised at the bidding of any one party/person but the  powers conferred and discretion vested are to prevent any  irretrievable or immeasurable damage to the cause of  society, public interest and miscarriage of justice.  Recourse may be had by Courts to power under this section  only for the purpose of discovering relevant facts or  obtaining proper proof of such facts as are necessary to  arrive at a just decision in the case.  

       Section 391 of the Code is another salutary provision  which clothes the Courts with the power to effectively  decide an appeal. Though Section 386 envisages the normal  and ordinary manner and method of disposal of an appeal, yet  it does not and cannot be said to exhaustively enumerate the  modes by which alone the Court can deal with an appeal.  Section 391 is one such exception to the ordinary rule and  if the appellate Court considers additional evidence to be

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necessary, the provisions in Section 386 and Section 391  have to be harmoniously considered to enable the appeal to  be considered and disposed of also in the light of the  additional evidence as well. For this purpose it is open to  the appellate Court to call for further evidence before the  appeal is disposed of. The appellate Court can direct the  taking up of further evidence in support of the prosecution;  a fortiori it is open to the Court to direct that the  accused persons may also be given a chance of adducing  further evidence. Section 391 is in the nature of an  exception to the general rule and the powers under it must  also be exercised with great care, specially on behalf of  the prosecution lest the admission of additional evidence  for the prosecution operates in a manner prejudicial to the  defence of the accused. The primary object of Section 391 is  the prevention of guilty man’s escape through some careless  or ignorant proceedings before a Court or vindication of an  innocent person wrongfully accused. Where the Court through  some carelessness or ignorance has omitted to record the  circumstances essential to elucidation of truth, the  exercise of powers under Section 391 is desirable.  

       The legislative intent in enacting Section 391 appears  to be the empowerment of the appellate court to see that  justice is done between the prosecutor and the persons  prosecuted and if the appellate Court finds that certain  evidence is necessary in order to enable it to give a  correct and proper findings, it would be justified in taking  action under Section 391.

       There is no restriction in the wording of Section 391  either as to the nature of the evidence or that it is to be  taken for the prosecution only or that the provisions of the  Section are only to be invoked when formal proof for the  prosecution is necessary. If the appellate Court thinks that  it is necessary in the interest of justice to take  additional evidence it shall do so. There is nothing in the  provision limiting it to cases where there has been merely  some formal defect. The matter is one of the discretion of  the appellate Court. As re-iterated supra the ends of  justice are not satisfied only when the accused in a  criminal case is acquitted. The community acting through the  State and the public prosecutor is also entitled to justice.  The cause of the community deserves equal treatment at the  hands of the Court in the discharge of its judicial  functions.  

In Rambhau and Anr. v. State of Maharashtra (2001 (4)  SCC 759) it was held that the object of Section 391 is not  to fill in lacuna, but to subserve the ends of justice. The  Court has to keep these salutary principle in view. Though  wide discretion is conferred on the Court, the same has to  be exercised judicially and the Legislature had put the  safety valve by requiring recording of reasons.  

Need for circumspection was dealt with by this Court in  Mohanlal Shamji Soni’s case (supra) and Ram Chander v. State  of Haryana (1981 (3) SCC 191) which dealt with the  corresponding Section 540 of Code of Criminal Procedure,  1898 (in short the ’Old Code’) and also in Jamatraj’s case  (supra). While dealing with Section 311 this Court in  Rajendra Prasad v. Narcotic Cell thr. Its officer in Charge,  Delhi  (1999 (6) SCC 110) held as follows:

"It is a common experience in criminal

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courts that defence counsel would raise  objections whenever courts exercise  powers under Section 311 of the Code or  under Section 165 of the Evidence Act,  1872 by saying that the court could not  "fill the lacuna in the prosecution  case".  A lacuna in the prosecution is  not to be equated with the fallout of an  oversight committed by a Public  Prosecutor during trial, either in  producing relevant materials or in  eliciting relevant answers from  witnesses. The adage "to err is human"  is the recognition of the possibility of  making mistakes to which humans are  prone. A corollary of any such laches or  mistakes during the conducting of a case  cannot be understood as a lacuna which a  court cannot fill up.

Lacuna in the prosecution must be  understood as the inherent weakness or a  latent wedge in the matrix of the  prosecution case.  The advantage of it  should normally go to the accused in the  trial of the case, but an oversight in  the management of the prosecution cannot  be treated as irreparable lacuna. No  party in a trial can be foreclosed from  correcting errors.  If proper evidence  was not adduced or a relevant material  was not brought on record due to any  inadvertence, the court should be  magnanimous in permitting such mistakes  to be rectified. After all, function of  the criminal court is administration of  criminal justice and not to count errors  committed by the parties or to find out  and declare who among the parties  performed better".

       Whether a retrial under Section 386 or taking up of  additional evidence under Section 391 is the proper  procedure will depend on the facts and circumstances of each  case for which no straight-jacket formula of universal and  invariable application can be formulated.  

       In the ultimate analysis whether it is a case covered  by Section 386 or Section 391 of the Code the underlying  object which the Court must keep in view is the very reasons  for which the Courts exist i.e. to find out the truth and  dispense justice impartially and ensure also that the very  process of Courts are not employed or utilized in a manner  which give room to unfairness or lend themselves to be used  as instruments of oppression and injustice.  

Though justice is depicted to be blind-folded, as  popularly said, it is only a veil not to see who the party  before it is while pronouncing judgment on the cause brought  before it by enforcing law and administer justice and not to  ignore or turn the mind/attention of the Court away from the  truth of the cause or lis before it, in disregard of its  duty to prevent miscarriage of justice. When an ordinary  citizen makes a grievance against the mighty administration,  any indifference, inaction or lethargy shown in protecting

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his right guaranteed in law will tend to paralyse by such  inaction or lethargic action of Courts and erode in stages  faith inbuilt in judicial system ultimately destroying the  very justice delivery system of the country itself. Doing  justice is the paramount consideration and that duty cannot  be abdicated or diluted and diverted by manipulative red  herrings.

The Courts at the expense of repetition we may state,  exist for doing justice to the persons who are affected. The  Trial/First Appellate Courts cannot get swayed by abstract  technicalities and close their eyes to factors which need to  be positively probed and noticed. The Court is not merely to  act as a tape recorder recording evidence, overlooking the  object of trial i.e. to get at the truth. It cannot be  oblivious to the active role to be played for which there is  not only ample scope, but sufficient powers conferred under  the Code. It has a greater duty and responsibility i.e. to  render justice, in a case where the role of the prosecuting  agency itself is put in issue and is said to be hand in  glove with the accused, parading a mock fight and making a  mockery of the criminal justice administration itself.        As pithily stated in Jennison v. Backer (1972 (1) All  E.R. 1006), "The law should not be seen to sit limply,  while those who defy it go free and, those who seek its  protection lose hope". Courts have to ensure that accused  persons are punished and that the might or authority of the  State are not used to shield themselves or their men. It  should be ensured that they do not wield such powers which  under the Constitution has to be held only in trust for the  public and society at large. If deficiency in investigation  or prosecution is visible or can be perceived by lifting the  veil trying to hide the realities or covering the obvious  deficiencies, Courts have to deal with the same with an iron  hand appropriately within the framework of law. It is as  much the duty of the prosecutor as of the Court to ensure  that full and material facts are brought on record so that  there might not be miscarriage of justice. (See Shakila  Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr.  (2003 (7) SCC 749).            This Court in Vineet Narian v. Union of India  (1998  (1) SCC 226) has directed that steps should be taken  immediately for the constitution of able and impartial  agency comprising persons of unimpeachable integrity to  perform functions akin to those of the Director of  Prosecution in England. In the United Kingdom, the Director  of Prosecution was created in 1879. His appointment is by  the Attorney General from amongst the members of the Bar and  he functions under the supervision of Attorney General. The  Director of Prosecution plays a vital role in the  prosecution system. He even administers "Witness Protection  Programmes". Several countries for example Australia,  Canada and USA have even enacted legislation in this regard.  The Witness Protection Programmes are imperative as well as  imminent in the context of alarming rate of somersaults by  witnesses with ulterior motives and purely for personal gain  or fear for security. It would be a welcome step if  something in those lines are done in our country. That would  be a step in the right direction for a fair trial.  Expression of concern merely in words without really the  mind to concretise it by positive action would be not only  useless but also amounts to betrayal of public confidence  and trust imposed.    

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Though it was emphasised with great vehemence by Mr.  Sushil Kumar and Mr. KTS Tulsi that the High Court dealt  with the application under Section 391 of the Code in detail  and not perfunctorily as contended by learned counsel for  the appellants; we find that nowhere the High Court has  effectively dealt with the application under Section 391 as  a part of the exercise to deal with and dispose of the  appeal. In fact the High Court dealt with it practically in  one paragraph, i.e. Paragraph 36 of the judgment accepting  the stand of learned counsel for the accused that the  consideration of the appeal has to be limited to the records  sent up under Section 385(2) of the Code for disposal of the  appeal under Section 386. This perception of the powers of  the appellate Court and misgivings as to the manner of  disposal of an appeal per se vitiates the decision rendered  by the High Court. Section 386 of the Code deals with the  manner and disposal of the appeal in the normal or ordinary  course. Section 391 is in the nature of exception to Section  386. As was observed in Rambhau’s case (supra) if the stand  of learned counsel for the accused as was accepted by the  High Court is maintained, it would mean that Section 391 of  the Code would be a dead letter in the statute book. The  necessity for additional evidence arises when the Court  feels that some evidence which ought to have been before it  is not there or that some evidence has been left out or  erroneously brought in. In all cases it cannot be laid down  as a rule of universal application that the Court has to  first find out whether the evidence already on record is  sufficient. The nature and quality of the evidence on record  is also relevant. If the evidence already on record is shown  or found to be tainted, tailored to suit or help a  particular party or side and the real truth has not and  could not have been spoken or brought forth during trial, it  would constitute merely an exercise in futility, if it  considered first whether the evidence already on record is  sufficient to dispose of the appeals. Disposal of appeal  does not mean disposal for statistical purposes but  effective and real disposal to achieve the object of any  trial. The exercise has to be taken up together. It is not  that the Court has to be satisfied that the additional  evidence would be necessary for rendering a verdict  different from what was rendered by the trial Court. In a  given case even after assessing the additional evidence, the  High Court can maintain the verdict of the trial Court and  similarly the High Court on consideration of the additional  evidence can upset the trial Court’s verdict. It all depends  upon the relevance and acceptability of the additional  evidence and its qualitative worth in deciding the guilt or  innocence of the accused.  

Merely because the High Court permits additional  evidence to be adduced, it does not necessarily lead to the  conclusion that the judgment of the trial Court was wrong.  That decision has to be arrived at after assessing the  evidence that was before the Trial Court and the additional  evidence permitted to be adduced. The High Court has  observed that question of accepting application for  additional evidence will be dealt with separately, and in  fact dealt with it in a cryptic manner practically in one  paragraph and did not think it necessary to accept the  additional evidence. But at the same time made threadbare  analysis of the affidavits as if it had accepted it as  additional evidence and was testing its acceptability. Even  the conclusions arrived at with reference to those

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affidavits do not appear to be correct and seem to suffer  from apparent judicial obstinacy and avowed determination to  reject it. For example, to brand a person as not truthful  because a different statement was given before the trial  Court unmindful of the earliest statement given during  investigation and the reasons urged for turning hostile  before Court negates the legislative intent  and   purpose  of incorporating Section 391 in the Code. The question of  admission of evidence initially or as additional evidence  under Section 391 is distinct from the efficacy, reliability  and its acceptability for consideration of claims in the  appeal on merits. It is only after admission, the Court  should consider in each case whether on account of earlier  contradiction before Court and the testimony allowed to be  given as additional evidence, which of them or any one part  or parts of the depositions are creditworthy and acceptable,  after a comparative analysis and consideration of the  probabilities and probative value of the materials for  adjudging the truth. To reject it merely because of  contradiction and that too in a sensitised case like the one  before Court with a horror and terror oriented history of  its own would amount to conspicuous omission and deliberate  dereliction of discharging functions judiciously and with a  justice-orientated mission. In a given case when the Court  is satisfied that for reasons on record the witness had not  stated truthfully before the trial Court and was willing to  speak the truth before it, the power under Section 391 of  the Code is to be exercised. It is to be noted at this stage  that it is not the prosecution which alone can file an  application under Section 391 of the Code. It can also be  done, in an appropriate case by the accused to prove his  innocence. Therefore, any approach without pragmatic  consideration defeats the very purpose for which Section 391  of the Code has been enacted. Certain observations of the  High Court like, that if the accused persons were really  guilty they would not have waited for long to commit  offences or that they would have killed the victims in the  night taking advantage of the darkness and/or that the  accused persons had saved some persons belonging to the  other community were not only immaterial for the purpose of  adjudication of application for additional evidence but such  surmises could have been carefully avoided at least in order  to observe and maintain the judicial calm and detachment  required of the learned Judges in the High Court. The  conclusions of the High Court that 65 to 70 persons  belonging to the attacked community were saved by the  accused or others appears to be based on the evidence of the  relatives of the accused who were surprisingly examined by  prosecution. We shall deal with the propriety of examining  such persons, infra. These aspects could have been, if at  all permissible to be done, considered after accepting the  prayer for additional evidence. It is not known as to what  extent these irrelevant materials have influenced the  ultimate judgment of the High Court, in coming with such a  strong and special plea in favour of a prosecuting agency  which has miserably failed to demonstrate any credibility by  its course of action. The entire approach of the High Court  suffers from serious infirmities, its conclusions lopsided  and lacks proper or judicious application of mind.  Arbitrariness is found writ large on the approach as well as  the conclusions arrived at in the judgment under challenge,  in unreasonably keeping out relevant evidence from being  brought on record.     

       Right from the beginning, the stand of the appellant-

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Zahira was that the investigating agency was trying to help  the accused persons and so was the public prosecutor. If the  investigation was faulty, it was not the fault of the  victims or the witnesses. If the same was done in a manner  with the object of helping the accused persons as it appears  to be apparent from what has transpired so far, it was an  additional ground just and reasonable as well for accepting  the additional evidence.

In the case of a defective investigation the Court has  to be circumspect in evaluating the evidence and may have to  adopt an active and analytical role to ensure that truth is  found by having recourse to Section 311 or at a later stage  also resorting to Section 391 instead of throwing hands in  the air in despair. It would not be right in acquitting an  accused person solely on account of the defect; to do so  would tantamount to playing into the hands of the  investigating officer if the investigation is designedly  defective. (See Karnel Singh v. State of M.P. (1995 (5) SCC  518).  

       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 Courts getting at the truth by having  recourse to Sections 311, 391 of the Code and Section 165 of  the Evidence Act at the appropriate and relevant stages and  evaluating the entire evidence; otherwise the designed  mischief would be perpetuated with a premium to the  offenders and justice would not only be denied to the  complainant party but also made an ultimate casualty.  

       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 in the hands of Courts. The view was again re- iterated in Amar Singh v. Balwinder Singh and Ors. (2003 (2)  SCC 518).

       It is no doubt true that the accused persons have been  acquitted by the trial Court and the acquittal has been  upheld, but if the acquittal is unmerited and based on  tainted evidence, tailored investigation, unprincipled  prosecutor and perfunctory trial and evidence of  threatened/terrorised witnesses, it is no acquittal in the  eye of law and no sanctity or credibility can be attached  and given to the so-called findings.  It seems to be nothing  but a travesty of truth, fraud on legal process and the  resultant decisions of Courts - coram non judis and non est.  There is, therefore, every justification to call for  interference in these appeals.

In a country like us with heterogeneous religions and  multiracial and multilingual society which necessitates  protection against discrimination on the ground of caste or  religion taking lives of persons belonging to one or the  other religion is bound to have dangerous repercussions and  reactive effect on the society at large and may tend to  encourage fissiparous elements to undermine the unity and

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security of the nation on account of internal disturbances.  It strikes at the very root of an orderly society, which the  founding fathers of our Constitution dreamt of.            When the ghastly killings take place in the land of  Mahatama Gandhi it raises a very pertinent question as to  whether some people have become so bankrupt in their  ideology that they have deviated from everything which was  so dear to him.  When large number of people including  innocent and helpless children and women are killed in a  diabolic manner it brings disgrace to the entire society.  Criminals have no religion. No religion teaches violence and  cruelty-based religion is no religion at all, but a mere  cloak to usurp power by fanning ill feeling and playing on  feelings aroused thereby. The golden thread passing through  every religion is love and compassion. The fanatics who  spread violence in the name of religion are worse than  terrorists and more dangerous than an alien enemy.  

       The little drops of humanness which jointly make  humanity a cherished desire of mankind had seemingly dried  up when the perpetrators of the crime had burnt alive  helpless women and innocent children. Was it their fault  that were born in the houses of persons belonging to a  particular community? The still, said music of humanity had  become silent when it was forsaken by those who were  responsible for the killings.  

"Little drops of   Water, little grains of sand   Make the mighty ocean  And the pleasant land,  Little deeds of kindness,  Little words of love  Help to make earth happy  Like the heaven above"  Said Julia A.F. Cabney in "Little Things".

       If one even cursorily glances through the records of  the case, one gets a feeling that the justice delivery  system was being taken for a ride and literally allowed to  be abused, misused and mutilated by subterfuge. The  investigation appears to be perfunctory and anything but  impartial without any definite object of finding out the  truth and bringing to book those who were responsible for  the crime. The public prosecutor appears to have acted more  as a defence counsel than one whose duty was to present the  truth before the Court. The Court in turn appeared to be a  silent spectator, mute to the manipulations and preferred to  be indifferent to sacrilege being committed to justice. The  role of the State Government also leaves much to be desired.  One gets a feeling that there was really no seriousness in  the State’s approach in assailing the Trial Court’s  judgment. This is clearly indicated by the fact that the  first memorandum of appeal filed was an apology for the  grounds. A second amendment was done, that too after this  Court expressed its unhappiness over the perfunctory manner  in which the appeal was presented and challenge made. That  also was not the end of the matter. There was a subsequent  petition for amendment. All this sadly reflects on the  quality of determination exhibited by the State and the  nature of seriousness shown to pursue the appeal. Criminal  trials should not be reduced to be the mock trials or shadow  boxing or fixed trials.  Judicial Criminal Administration  System must be kept clean and beyond the reach of whimsical

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political wills or agendas and properly insulated from  discriminatory standards or yardsticks of the type  prohibited by the mandate of the Constitution.     

       Those who are responsible for protecting life and  properties and ensuring that investigation is fair and  proper seem to have shown no real anxiety. Large number of  people had lost their lives. Whether the accused persons  were really assailants or not could have been established by  a fair and impartial investigation. The modern day ’Neros’  were looking elsewhere when Best Bakery and innocent  children and helpless women were burning, and were probably  deliberating how the perpetrators of the crime can be saved  or protected. Law and justice become flies in the hands of  these "wanton boys". When fences start to swallow the  crops, no scope will be left for survival of law and order  or truth and justice. Public order as well as public  interest become martyrs and monuments.                     In the background of principles underlying Section 311  and Section 391 of the Code and Section 165 of the Evidence  Act it has to be seen as to whether the High Court’s  approach is correct and whether it had acted justly,  reasonably and fairly in placing premiums on the serious  lapses of grave magnitude by the prosecuting agencies and  the Trial Court, as well. There are several infirmities  which are tell tale even to the naked eye of even an  ordinary common man. The High Court has come to a definite  conclusion that the investigation carried out by the police  was dishonest and faulty. That was and should have been per  se sufficient justification to direct a re-trial of the  case. There was no reason for the High Court to come to the  further conclusion of its own about false implication  without concrete basis and that too merely on conjectures.     On the other hand, the possibility of the investigating  agency trying to shield the accused persons keeping in view  the methodology adopted and outturn of events can equally be  not ruled out. When the investigation is dishonest and  faulty, it cannot be only with the purpose of false  implication. It may also be noted at this stage that the  High Court has even gone to the extent of holding that the  FIR was manipulated. There was no basis for such a  presumptive remark or arbitrary conclusion.   

       The High Court has come to a conclusion that Zahira  seems to have unfortunately for some reasons after the  pronouncement of the judgment fallen into the hands of some  who prefer to remain behind the curtain to come out with the  affidavit alleging threat during trial.  It has rejected the  application for adducing additional evidence on the basis of  the affidavit, but has found fault with the affidavit and  hastened to conclude unjustifiably that they are far from  truth by condemning those who were obviously victims. The  question whether they were worthy of credence, and whether  the subsequent stand of the witnesses was correct needed to  be assessed, and adjudged judiciously on objective standards  which are the hallmark of a judicial pronouncement. Such  observations if at all could have been only made after  accepting the prayer for additional evidence.  The disclosed  purpose in the State Government’s prayer with reference to  the affidavits was to bring to High Court’s notice the  situation which prevailed during trial and the reasons as to  why the witnesses gave the version as noted by the Trial  Court. Whether the witness had told the truth before the  Trial Court or as stated in the affidavit, were matters for

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assessment of evidence when admitted and tendered and when  the affidavit itself was not tendered as evidence, the  question of analysing it to find fault was not the proper  course to be adopted. The affidavits were filed to emphasise  the need for permitting additional evidence to be taken and  for being considered as the evidence itself.  The High Court  has also found that some persons were not present and,  therefore, question of their statement being recorded by the  police did not arise.  For coming to this conclusion, the  High Court noted that the statements under Section 161 of  the Code were recorded in Gujarati language though the  witnesses did not know Gujarati.  The reasoning is erroneous  for more reasons than one. There was no material before the  High Court for coming to a finding that the persons did not  know Gujarati since there may be a person who could converse  fluently in a language though not a literate to read and  write. Additionally, it is not a requirement in law that the  statement under Section 161 of the Code has to be recorded  in the language known to the person giving the statement.   As a matter of fact, the person giving the statement is not  required to sign the statement as is mandated in Section 162  of the Code. Sub-section (1) of Section 161 of the Code  provides that the competent police officer may examine  orally any person supposed to be acquainted with the facts  and circumstances of the case. Requirement is the  examination by the concerned police officer. Sub-section (3)  is relevant, and it requires the police officer to reduce  into writing any statement made to him in the course of an  examination under this Section; and if he does so, he shall  make a separate and true record of the statement of each  such person whose statement he records. Statement made by a  witness to the police officer during investigation may be  reduced to writing. It is not obligatory on the part of the  police officer to record any statement made to him. He may  do so if he feels it necessary. What is enjoined by the  Section is a truthful disclosure by the person who is  examined. In the above circumstance the conclusion of the  High Court holding that the persons were not present is  untenable. The reasons indicated by the High Court to  justify non-examination of the eye-witnesses is also not  sustainable. In respect of one it has been said that  whereabouts of the witness may not be known. There is  nothing on record to show that the efforts were made by the  prosecution to produce the witness for tendering evidence  and yet the net result was ’untraceable’. In other words,  the evidence which should have been brought before the Court  was not done with any meticulous care or seriousness. It is  true that the prosecution is not bound to examine each and  every person who has been named as witness.  A person named  as a witness may be given up when there is material to show  that he has been gained over or that there is no likelihood  of the witness speaking the truth in the Court. There was no  such material brought to the notice of the Courts below to  justify non-examination. The materials on record are totally  silent on this aspect.  Another aspect which has been  lightly brushed aside by the High Court is that one person  who was to be examined on a particular date was examined   earlier than the date fixed.  This unusual conduct by the  prosecutor should have been seriously taken note of by the  Trial Court and also by the High Court. It is to be noted  that the High Court has found fault with DCP Shri Piyush  Patel and has gone to the extent of saying that he has  miserably failed to discharge his duties; while finding at  the same time that police inspector Baria had acted fairly.  The criticism according to us is uncalled for. Role of

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Public Prosecutor was also not in line with what is expected  of him. Though a Public Prosecutor is not supposed to be a  persecutor, yet the minimum that was required to be done to  fairly present the case of the prosecution was not done.  Time and again, this Court stressed upon the need of the  investigating officer being present during trial unless  compelling reasons exist for a departure.  In the instant  case, this does not appear to have been done, and there is  no explanation whatsoever why it was not done. Even Public  Prosecutor does not appear to have taken note of this  desirability.  In Shailendra Kumar v. State of Bihar and  Ors. (2001 (8) Supreme 13), it was observed as under:

"In our view, in a murder trial it is sordid  and repulsive matter that without informing  the police station officer-in-charge, the  matters are proceeded by the court and by the  APP and tried to be disposed of as if the  prosecution has not led any evidence.  From  the facts stated above, it appears that  accused wants to frustrate the prosecution by  unjustified means and it appears that by one  way or the other the Addl. Sessions Judge as  well as the APP have not taken any interest  in discharge of their duties.  It was the  duty of the sessions judge to issue summons  to the investigating officer if he failed to  remain present at the time of trial of the  case. The presence of investigating officer  at the time of trial is must. It is his duty  to keep the witnesses present. If there is  failure on part of any witness to remain  present, it is the duty of the court to take  appropriate action including issuance of  bailable/non-bailable warrants as the case  may be. It should be well understood that  prosecution can not be frustrated by such  methods and victims of the crime cannot be  left in lurch."                

A somewhat an unusual mode in contrast to the lapse  committed by non-examining victims and injured witnesses  adopted by the investigating agency and the prosecutor was  examination of six relatives of accused persons. They have  expectedly given a clean chit to the accused and labeled  them as saviors. This unusual procedure was highlighted  before the High Court. But the same was not considered  relevant as there is no legal bar. When we asked Mr.  Rohtagi, learned counsel for the State of Gujarat as to  whether this does not reflect badly on the conduct of  investigating agency and the prosecutor, he submitted that  this was done to show the manner in which the incident had  happened. This is a strange answer. Witnesses are examined  by prosecution to show primarily who is the accused. In this  case it was nobody’s stand that the incident did not take  place. That the conduct of investigating agency and the  prosecutor was not bona fide, is apparent and patent.   So far as non-examination of some injured relatives are  concerned, the High Court has held that in the absence of  any medical report, it appears that they were not present  and, therefore, held that the prosecutor might have decided  not to examine Yasminbanu because there was no injury. This  is nothing but a wishful conclusion based on presumption.   It is true that merely because the affidavit has been filed

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stating that the witnesses were threatened, as a matter of  routine, additional evidence should not be permitted.  But  when the circumstances as in this case clearly indicate that  there is some truth or prima facie substance in the  grievance made, having regard to background of events as  happened the appropriate course for the Courts would be to  admit additional evidence for final adjudication so that the  acceptability or otherwise of evidence tendered by way of  additional evidence can be tested properly and legally  tested in the context of probative value of the two  versions. There cannot be straight-jacket formula or rule of  universal application when alone it can be done and when,  not. As the provisions under Section 391 of the Code are by  way of an exception, the Court has to carefully consider the  need for and desirability to accept additional evidence. We  do not think it necessary to highlight all the infirmities  in the judgment of the High Court or the approach of the  Trial Court lest nothing credible or worth mentioning would  remain in the process. This appears to be a case where the  truth has become a casualty in the trial. We are satisfied  that it is fit and proper case, in the background of the  nature of additional evidence sought to be adduced and the  perfunctory manner of trial conducted on the basis of  tainted investigation a re-trial is a must and essentially  called for in order to save and preserve the justice  delivery system unsullied and unscathed by vested interests.  We should not be understood to have held that whenever  additional evidence is accepted, re-trial is a necessary  corollary. The case on hand is without parallel and  comparison to any of the cases where even such grievances  were sought to be made. It stands on its own as an exemplary  one, special of its kind, necessary to prevent its  recurrence. It is normally for the Appellate Court to decide  whether the adjudication itself by taking into account the  additional evidence would be proper or it would be  appropriate to direct a fresh trial, though, on the facts of  this case, the direction for re-trial becomes inevitable.

       Prayer was made by learned counsel for the appellant  that the trial should be conducted outside the State so that  the unhealthy atmosphere which led to failure of miscarriage  of justice is not repeated.  This prayer has to be  considered in the background and keeping in view the spirit  of Section 406 of the Code. It is one of the salutory  principles of the administration of justice that justice  should not only be done but it should be seen to be done.   However, a mere allegation that there is apprehension that  justice will not be done in a given case or that general  allegations of a surcharged atmosphere against a particular  community alone does not suffice. The Court has to see  whether the apprehension is reasonable or not. The state of  mind of the person who entertains apprehension, no doubt is  a relevant factor but not the only determinative or  concluding factor. But the Court must be fully satisfied  about the existence of such conditions which would render  inevitably impossible the holding of a fair and impartial  trial, uninfluenced by extraneous considerations that may  ultimately undermine the confidence of reasonable and right  thinking citizen, in the justice delivery system. The  apprehension must appear to the Court to be a reasonable  one. This position has been highlighted in Gurcharan Das  Chadha v. State of Rajasthan (1966 (2) SCR 678), and K.  Ambazhagan v. The Superintendent of Police and others etc.  (JT 2003 (9) SC 31).

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       Keeping in view the peculiar circumstances of the case,  and the ample evidence on record, glaringly demonstrating  subversion of justice delivery system with no congeal and  conducive atmosphere still prevailing, we direct that the  re-trial shall be done by a Court under the jurisdiction of  Bombay High Court. The Chief Justice of the said High Court  is requested to fix up a Court of Competent jurisdiction.               

We direct the State Government to appoint another Public  Prosecutor and it shall be open to the affected persons to  suggest any name which may also be taken into account in the  decision to so appoint. Though the witnesses or the victims  do not have any choice in the normal course to have a say in  the matter of appointment of a Public Prosecutor, in view of  the unusual factors noticed in this case, to accord such  liberties to the complainants party, would be appropriate.

The fees and all other expenses of the public prosecutor  who shall be entitled to assistance of one lawyer of his  choice shall initially be paid by the State of Maharashtra,  who will thereafter be entitled to get the same reimbursed  from the State of Gujarat. The State of Gujarat shall ensure  that all the documents and records are forthwith transferred  to the Court nominated by the Chief Justice of the Bombay  High Court. The State of Gujarat shall also ensure that the  witnesses are produced before the concerned Court whenever  they are required to attend that Court. Necessary protection  shall be afforded to them so that they can depose freely  without any apprehension of threat or coercion from any  person.  In case, any witness asks for protection, the State  of Maharashtra shall also provide such protection as deemed  necessary, in addition to the protection to be provided for  by the State of Gujarat. All expenses necessary for the  trial shall be initially borne by the State of Maharashtra,  to be reimbursed by the State of Gujarat.                

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.  

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.       

       Before we part with the case it would be appropriate to  note some disturbing factors.  The High Court after hearing  the appeal directed its dismissal on 26.12.2003 indicating  in the order that the reasons were to be subsequently given,  because the Court was closing for winter holidays.  This  course was adopted "due to paucity of time". We see no  perceivable reason for the hurry. The accused were not in  custody. Even if they were in custody, the course adopted  was not permissible. This Court has in several cases  deprecated the practice adopted by the High Court in the  present case.  

     About two decades back this Court in State of Punjab

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v. Jagdev Singe Talwandi (AIR 1984 SC 444) had inter alia  observed as follows :

"We would like to take this  opportunity to point out that serious  difficulties arise on account of the  practice increasingly adopted by the  High Courts of pronouncing the final  order without a reasoned judgment.  It  is desirable that the final order which  the High Court intends to pass should  not be announced until a reasoned  judgment is ready for pronouncement.  Suppose, for example, that a final order  without a reasoned judgment is announced  by the High Court that a house shall be  demolished, or that the custody of a  child shall be handed over to one parent  as against the other, or that a person  accused of a serious charge is  acquitted, or that a statute is  unconstitutional or, as in the instant  case, that a detenu be released from  detention.  If the object of passing  such orders is to ensure speedy  compliance with them, that object is  more often defeated by the aggrieved  party filing a special leave petition in  this Court against the order passed by  the High Court.  That places this Court  in a predicament because, without the  benefit of the reasoning of the High  Court, it is difficult for this Court to  allow the bare order to be implemented.   The result inevitably is that the  operation of the order passed by the  High Court has to be stayed pending  delivery of the reasoned judgment."

It may be thought that such orders are passed by this  Court and, therefore, there is no reason why the High Courts  should not do the same.  We would like to point out that the  orders passed by this Court are final and no further appeal  lies against them.  The Supreme Court is the final Court in  the hierarchy of our Courts. Orders passed by the High Court  are subject to the appellate jurisdiction of this Court  under Article 136 of the Constitution and other provisions  of the concerned statutes. We thought it necessary to make  these observations so that a practice which is not a very  desirable one and which achieves no useful purpose may not  grow out of and beyond its present infancy. What is still  more baffling is that written arguments of the State were  filed on 29.12.2003 and by the accused persons on 1.1.2004.   A grievance is made that when the petitioner in Criminal  Revision No.583 of 2003 wanted to file notes of arguments  that were not accepted making a departure from the cases of  the State and the accused. If the written arguments were to  be on record, it is not known as to why the High Court  dismissed the appeal. If it had already arrived at a  particular view there was no question of filing written  arguments.   

The High Court appears to have miserably failed to  maintain the required judicial balance and sobriety in

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making unwarranted references to personalities and their  legitimate moves before competent courts - the highest court  of the nation, despite knowing fully well that it could not  deal with such aspects or matters. Irresponsible  allegations, suggestions and challenges may be made by  parties, though not permissible or pursued defiantly during  course of arguments at times with the blessings or veiled  support of the Presiding Officers of Court.  But, such  besmirching tacts, meant as innuendos or serve as surrogacy  ought not to be made or allowed to be made, to become part  of solemn judgments, of at any rate by High Courts, which  are created as Court of record as well. Decency, decorum and  judicial discipline should never be made casualties by  adopting such intemperate attitudes of judicial obstinacy.   The High Court also made some observations and remarks about  persons/constitutional bodies like NHRC who were not before  it.  We had an occasion to deal with this aspect to certain  extent in the appeal relating to SLP (Crl.) Nos. 530- 532/2004. The move adopted and manner of references made, in  para no. 3 of the judgment except the last limb (sub-para)  is not in good taste or decorous. It may be noted that  certain reference is made therein or grievances purportedly  made before the High Court about role of NHRC. When we asked  Mr. Sushil Kumar who purportedly made the submissions before  the High Court, during the course of hearing, he stated that  he had not made any such submission as reflected in the  judgment. This is certainly intriguing. Proceedings of the  court normally reflect the true state of affairs. Even if it  is accepted that any such submission was made, it was not  proper or necessary for the High Court to refer to them in  the judgment, to finally state that no serious note was  taken of the submissions. Avoidance of such manoeuvres would  have augured well with the judicial discipline. We order the  expunging and deletion of the contents of para 3 of the  judgment except the last limb of the sub-para therein and it  shall be always read to have not formed part of the  judgment.  

A plea which was emphasised by Mr. Tulsi relates to the  desirability of restraint in publication/exhibition of  details relating to sensitive cases, more particularly  description of alleged accused persons in the  print/electronic/broadcast medias. According to him, "media  trial" causes indelible prejudice to the accused persons.  This is sensitive and complex issue, which we do not think  it proper to deal in detail in these appeals. The same may  be left open for an appropriate case where the media is also  duly and effectively represented.    

If the accused persons were not on bail at the time of  conclusion of the trial, they shall go back to custody, if  on the other hand they were on bail that order shall  continue unless modified by the concerned Court.  Since we  are directing a re-trial, it would be appropriate if same is  taken up on day-to-day basis keeping in view the mandate of  Section 309 of the Code and completed by the end of December  2004.

The appeals are allowed on the terms and to the extent  indicated above.

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