TaxTMI 
TaxTMI 
2006 (3) TMI 729
X X X X Extracts X X X X
X X X X Extracts X X X X
....atrix in an appeal filed by Zahira Habibullah hereinafter referred to as 'Zahira and Another namely, Teesta Setelwad' and another appeal filed by the State of Gujarat. In the appeals filed before this Court, the basic focus was on the absence of an atmosphere conducive to fair trial. Zahira who was projected as the star witness made a grievance that she was intimidated, threatened and coerced to depart from the truth and to make statement in Court which did not reflect the reality. The trial Court on the basis of the statements made by the witnesses in Court directed acquittal of the accused persons. Before the Gujarat High Court an application under Section 391 of the Code of Criminal Procedure, 1973 (in short the 'Code') highlighting the necessity for accepting additional evidence was filed. The foundation was the statement made by Zahira. The High Court did not accept the prayer and that is why the appeals came to be filed in this Court. By judgment dated 12th April, 2004 in Zahira Habibullah Sheikh & Anr. v. State of Gujarat and Ors. [(2004) 4 SCC 158], the following directions were given: &nbs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lah Sheikh is a truthful version. It is necessary to do so because various documents have been placed to show that she had made departure from her statements/stands at different points of time. Allegations are made by Mr. P.N.Lekhi, learned senior counsel appearing for Zahira Habibullah Sheikh that she was being threatened, coerced, induced and/or lured by Teesta Setalvad. On the contrary, learned counsel appearing for Teesta Setalvad submits that she was being threatened, coerced, lured or induced by others to make statements or adopt stands contrary to what she had stated/adopted earlier. In this delicate situation, the appropriate course would be to direct an inquiry to be conducted to arrive at the truth. We direct the Registrar General of this Court to conduct the inquiry and submit a report to this Court within three months. The Registrar General shall indicate in the report (a) if Zahira Habibullah Sheikh was in any manner threatened, coerced, induced and/or in any manner pressurised to depose/make statement(s) in any particular way, by any person or persons, and (b) if the answer to (a) is in the affirmation, who the person/persons is (or) are. For the purpose of inqu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... other deposits, amounts invested in movable or immovable properties and advances or security deposits, if any for the aforesaid purpose, along with the affidavit to be filed before the Registrar General of this Court. She will also indicate the sources of the aforesaid deposits, advances and investments, as the case may be. She shall also indicate the details of such deposits, advances and investments, if any, in respect of her family members and the source thereof. The Registrar General and police officer nominated to be associated with enquiry are free to record statements of such family members and to make such further enquiries in the manner as deemed necessary and to ask the family members to file affidavits containing the details as noted above. They shall indicate in the affidavits and the statements the sources of such deposits, advances and investments. If the Registrar General and the police officer feel that any further enquiry as regards the sources is necessary, they shall be free to do it. Since, we have extended the time for filing of affidavits by the parties, the enquiry report shall be submitted by the Registrar General within three months from today. Put u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....idavit dated 24.4.2005 filed by Zahira explained the following details: "1. 'Rs.65,000/- Sale consideration of one house sold in the month of November, 2001 2. Rs. 40,000/(Approx.)- Sale consideration of two-three wheelers sold to Scrap dealer (Kabadi) 3. Rs. 30,000/- Received from Insurance Company by mother on account of damages to motor cycle. 4. Rs. 32,000/- Sale consideration of scrap of machinery of Bakery 5. Rs. 1,50,000/- (Approx.) Sale consideration of scrap of Bakery 6. Rs. 50,000/- Compensation for damages of house received from Government through cheque in favour of her mother 7. Rs. 50,000/- Received by mother as & Rs. 40,000/- compensation of her sister's death from the Government through cheque 8. Rs. 493/- P.M. Deposited on monthly basis directly in Savings Bank Account No.16669 with Syndicate Bank stands in the name of mother, as interest on Bond amount of Rs. 50,000/- received as compensation of her sister's death from Government. 9. Rs. 55,000/- Investment in a house in Ekta Nagar in the name of Ms. Zahira Sheikh 10. Rs. 20,000 & Rs. 25,000/- Investment in two small plots of 15x30ft. each by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....,000/- on renovation of best bakery building. 6. Rs. 60,000/- Invested against a flat of Bombay 7. Rs. 48,000/- Deposited on 14.5.2003 with Bank account (A/c. No. 2037) of Sh. Nafitullah. 8. Rs. 30,727/- Mother's account (A/c. No. 8881) Total Rs. 5,88,412/- - Difference: Investments Receipts Rs. 5,88,412 - Rs. 2,02,096 = Rs. 3,86,316/- - If Rs. 1,82,000/- is also included as receipts then the difference is = Rs. 2,04,316/-. The Inquiry Officer recorded the following findings: "In view of the all, as discussed above, the fact which can be accepted as highly probable, that money has exchanged hands and that was the main inducement responsible which made Ms. Zahira to state in a particular way in Trial Court, Vadodara although threat could have also played a role in reaching at an agreement. However, the element of threat cannot be altogether ruled out. One cannot loose sight of the fact that first contact over cell phone was made by Sh. Madhu Srivastava and Sh. Bharat Thakkar and not by Sh. Nafitullah. The evidence of Sh. Abhishek Kapoor about presen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t was purportedly made by Zahira was in fact made by Teesta. Teesta's role in the whole episode is very suspicious. She had spent lot of money taking advantage of the helplessness of Zahira and has used her for her machination. Zahira was tutored to make statements on different occasions. Teesta has given different versions as to when she has come in contact with Zahira and decided to take up her issues. On the other hand, the State of Gujarat has adopted a peculiar stand stating that in view of conclusions of the Inquiry Officer it is not in a position to simpliciter accept or deny the report. So far as the criticism levelled by the Inquiry Officer against the conduct of some of the officers it was pointed out that the State has shown its anxiety to see that justice is done and nothing is wrong in deputing officers and merely because Shri S.N. Sinha who had been transferred appeared in the proceedings before the Inquiry Officer, that cannot show that the State of Gujarat was adopting any particular stand. On behalf of Mrs. Teesta it has been submitted that report deserves to be accepted. Further enquiry as to the role of Madhu Srivastava and the sources of money which ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... have been put, were asked by the Inquiry Officer whenever any suggestion was made in that regard. If a party did not suggest any question to be put to a witness by the Inquiry Officer, it is not open for him or her to say that opportunity for "cross examination" was not given. A further grievance is made that a request to call the Chairman, NHRC was turned down without reasons. This according to us is a plea which needs to be noticed and rejected. The statement of Zahira was recorded by NHRC in the presence of the Chairman (a retired Chief Justice of this Court) and several members which included a retired Judge of this Court). The allegation that it was not properly recorded or that somebody else's statement was recorded and Zahira was asked to put the signatures, as she has tried to make out is clearly untenable. If we may say so, such a plea should not have been raised as it reflects on the credibility of functionaries of a body like NHRC. The other pleas which have been enumerated above do not in any way affect credibility or acceptability of the report. The allegation that the Inquiry Officer acted with some pre- conceived ideas and/or report was based on presumptions ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is found to have committed contempt or to have deflected the course of justice by unacceptable methods. Learned counsel for Zahira stated that they would not like to make statements in that regard and would only stress on the report being not accepted. Zahira has committed contempt of this Court. Parliament by virtue of Entry 77 List I is competent to enact a law relating to the powers of the Supreme Court with regard to contempt of itself and such a law may prescribe the nature of punishment which may be imposed on a contemner by virtue of the provisions of Article 129 read with Article 142(2) of the Constitution of India, 1950. Since, no such law has been enacted by Parliament, the nature of punishment prescribed under the Contempt of Courts Act, 1971 may act as a guide for the Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme Court, except that Section 15 of the Act prescribes procedural mode for taking cognizance of criminal contempt by the Supreme Court also. Section 15, however, is not a substantive provision conferring co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....limply, while those who defy it go free and those who seek its protection loose hope (See Jennison v. Backer (1972 (1) All ER 1006). Increasingly, people are believing as observed by SALMON quoted by Diogenes Laertius in "Lives of the Philosophers" laws are like spiders' webs: if some light or powerless thing falls into them, it is caught, but a bigger one can break through and get away". Jonathan Swift, in his "Essay on the Faculties of the Mind" said in similar lines: "Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through". As has been noticed earlier in the earlier case (reported in 2004 (4) SCC 158), the role to be played by Courts, witnesses, investigating officers, public prosecutors has to be focused, more particularly when eyebrows are raised about their roles. In this context, reference may be made to Section 311 of the Code which reads as follows: "311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-exam....
X X X X Extracts X X X X
X X X X Extracts X X X X
....edings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their si....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bsp; "The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however, valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much." The Vice-Chancellor went on to refer to paying "too great a price .... for truth". This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: "The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards." Restraints on the processes for determining the truth are mu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arties, crime being public wrong in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995 (5) SCC 518). 6. In Paras Yadav and Ors. v. State of Bihar (1999 (2) SCC 126) it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. 7. As was observed in Ram Bihari Yadav v. State of Bihar and Ors. (1998 (4) SCC 517) if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view was again re-iterated in Amar Singh v. Balwinder Singh and Ors. (2003 (2) SCC 518)". The State has a definite role to play in protec....