Writ Petiton (Crl.) No. 109 of 2003, Crl. M.P. No. 10719/2003 in WP (Crl.) No. 109/2003, Crl. M.P. No. 7078/2003 in WP (Crl.) No. 109/2003, Crl. M.P. Nos. 7827/2003, 8193/2003 and 8194/2003 in WP (Crl.) No. 109/2003, Crl. M.P. No. 11668/2003 in WP (Crl.) No. 109/2003, Crl. M.P. No. 11689/2003 in WP (Crl.) No. 109/2003, Crl. M.P. No. 4782/2003.... Case: National Human Rights Commission Vs State of Gujarat and Ors.. Supreme Court (India)
| Case Number | Writ Petiton (Crl.) No. 109 of 2003, Crl. M.P. No. 10719/2003 in WP (Crl.) No. 109/2003, Crl. M.P. No. 7078/2003 in WP (Crl.) No. 109/2003, Crl. M.P. Nos. 7827/2003, 8193/2003 and 8194/2003 in WP (Crl.) No. 109/2003, Crl. M.P. No. 11668/2003 in WP (Crl.) No. 109/2003, Crl. M.P. No. 11689/2003 in WP (Crl.) No. 109/2003, Crl. M.P. No. 4782/2003... |
| Counsel | For Appellant: Harish N. Salve, Sr. Adv., (A.C.), Meenakshi Grover, B.V. Desai (A.C.), Rahul Gupta, Reema Sharma, Sanjay Parekh, Shilpa Gupta, Gopal, Umed Singh Gulia-in-Person, Amit Singh Chauhan, Ejaz Maqbool Huzefa Ahmadi, Aparna Bhat, Anand Grover, Lalit Mohini, Naveen R. Nath and Shobha, Advs. and For Respondents: Gopal Subramanium, ASG, ... |
| Judges | Arijit Pasayat, P. Sathasivam and Aftab Alam, JJ. |
| Issue | Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3, 4, 5, 6, 7, 9, 10, 24(8), 25(1) and 51; Criminal Justice and Public Order Act, 1994; Organized Crime Control Act, 1970; Comprehensive Crime Control Act, 1984; Witness Security Reform Act, 1984; Witness Protection Act, 1996; Witness Protection Act, 1998; Director of Public ... |
| Citation | (2009) 2 GLR 1672 (SC) , JT 2009 (6) SC 405 , 2009 (6) SCALE 509 , (2009) 6 SCC 342 |
| Judgement Date | May 01, 2009 |
| Court | Supreme Court (India) |
Judgment:
Arijit Pasayat, J.
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By order dated 26.3.2008 in this group of cases this Court had directed the Gujarat Government to constitute a five members Special Investigation Team (in short the `SIT') to be headed by Mr. R.K. Raghavan, former Director of the Central Bureau of Investigation to undertake inquiry/investigation including further investigation in nine cases. It was further directed that the SIT shall submit its report within a particular time. The State Government issued a Notification dated 1.4.2008 constituting the SIT. On 11.2.2009 the SIT has submitted its consolidated report. It has indicated therein that since its constitution the SIT has made considerable progress in respect of each of the nine cases and the current status is as follows:
1: Godhra Railway Police Station Cr. No 09/02
Applications received 63
Witnesses examined 183(125 old & 61 new)
Number arrested --
Charge sheets filed -
Stage of investigation Completed
2: Khambholaj Police Station Cr. No 23/02
Applications received 17
Witnesses examined 85(30 old & 55 new)
Number arrested Court is requested to issue
process against 16 accused
Charge sheets filed Amended separate charge
sheet-1
Stage of investigation Completed
3: Khambholaj Police Station Cr. No 27/02
Applications received 17
Witnesses examined 39
Number arrested -
Charge sheets filed -
Stage of investigation Completed
4: Naroda Police Station Cr. No 98/02
Applications received 06
Witnesses examined 450
Number arrested 20
Chargesheets filed 02
Stage of investigation Nearly complete
5: Naroda Police Station Cr. No 100/02
Applications received 88
Witnesses examined: 341
Number arrested 17
Chargesheets filed 01
Stage of investigation Nearly complete
6. Meghaninagar Police Station Cr. No 67/02
Applications received 59
Witnesses examined 227
Number arrested 18
Chargesheets filed 03
Stage of investigation. Nearly complete
7: Visnagar Police Station Cr. No 60/02
Applications received 05
Witnesses examined 42
Number arrested 03
Chargesheets filed 01
Stage of investigation Nearly complete
8. Vijapur Police Station Cr.No.46/02
Applications received 13
Witnesses examined 39
Number arrested 21
Chargesheets filed 02
Stage of investigation Completed
9. Prantij Police Station Cr.No.100/02
Applications received 10
Witnesses examined 24 (14 old and 10 new)
Number arrested -
Chargesheets filed -
Stage of investigation Completed
2. In separate sealed covers the IO's report in each case accompanied by the Supervising IGP and the Chairman's comments were submitted. The other members of the team are Shri C.B. Satpathy, Smt. Geetha Johri, Shri Shivanand Jha and Shri Ashish Bhatia. The last three are officers of the Indian Police Service from the Gujarat cadre.
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Pursuant to the directions given by this Court copies of the report were supplied to learned Amicus Curiae and learned Counsel for the State of Gujarat. Suggestions have been given by learned Amicus Curiae, learned Counsel for the State and some of the parties in the proceedings.
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Several important aspects need to be noted in these cases. Firstly, due to the efforts of SIT, persons who were not earlier arrayed as accused have now been arrayed as accused. From the details indicated above it appears that in most of the cases a large number of persons have been additionally made accused. Besides this, a large number of witnesses were also examined in each case. This goes to show the apparent thoroughness with which the SIT has worked. Therefore, the SIT shall continue to function until the completion of trial in all the cases and if any further inquiry/investigation is to be done the same can be done as provided in law, more particularly, under Section 173(8) of the Code of Criminal Proceudre,1973 (in short the `Code').
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A few important aspects concerning the cases need to be noted.
(1) Fair trial
(2) Modalities to ensure that the witnesses depose freely and in that context the need to protect the witnesses from interference by person(s) Connected with it is the protection of victims who in most cases are witnesses.
(3) Able assistance to court by competent public prosecutors.
(4) Further role of SIT.
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So far as fair trial is concerned the discovery and vindication and establishment of truth are certainly the main purposes of courts of justice. They are the underlying objects for the existence of the courts of justice.
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The importance of the witnesses in a criminal trial does not need any reiteration. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Ors. AIR 2006 SC 1367 it was observed as under:
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The complex pattern of life which is never static requires a fresher outlook and a timely and vigorous moulding of old precepts to some new conditions, ideas and ideals. If the court acts contrary to the role it is expected to play, it will be destruction of the fundamental edifice on which the justice delivery system stands. People for whose benefit the courts exist shall start doubting the efficacy of the system. "Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: `The Judge was biased.' " (Per Lord Denning, M.R. in Metropolitan Properties Co. Ltd. v. Lannon All ER 310 A.) The perception may be wrong about the Judge's bias, but the Judge concerned must be careful to see that no such impression gains ground. Judges like Caesar's wife should be above suspicion (Per Bowen, L.J. in Leeson v. General Council of Medical Education.)
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24. It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep the promise to justice and it cannot stay petrified and sit nonchalantly. The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection lose hope (see Jennison v. Baker). 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."
xx xx xx
30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial: the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.
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In 1846, in a judgment which Lord Chancellor Selborne would later describe as "one of the ablest judgements of one of the ablest judges who ever sat in this Court", Vice-Chancellor Knight Bruce said (ER p.957):
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."
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Restraints on the processes for determining the truth are multifaceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common law method of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process:
It is the merit of the common law that it decides the case first and determines the principles afterwards.... It is only after a series of determination on the same subject-matter, that it becomes necessary to `reconcile the cases', as it is called, that is, by a true 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.
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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 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. 34. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the law of evidence. There is, however, an overriding and...
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