ZAHIRA HABIBULLAH SHEIKH AND ANR . v. STATE OF GUJARAT AND ORS

Citation: [2006] 2 S.C.R. 1081

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, H.K. SEMA

Case summary

ZAHIRA HABIBULLAH SHEIKH AND ANR . v. STATE OF GUJARAT AND ORS.pdf

Judgment text

'! \ ZAHIRA HABIBULLAH SHEIKH AND ANR. v. STATE OF GUJARAT AND ORS. MARCH 8, 2006 [ARIJIT PASAYAT AND H. K. SEMA, JJ.

] ~ Criminal Procedure Code, I973-Section 311-Trial Court acquitting accused since all witnesses turned hostile-Witness made statements after trial before various bodies contending that she was intimated, threatened and coerced to turn hostile during trial-Direction by Supreme Court for re-trail in another State on basis ofthe statements by the witness-Witness thereafter giving press statements contending that she had not made such statements before various bodies and Supreme Court-Initiation of contempt of court proceedings against the witness before Supreme Court-Held, witnesses are the eyes and ears ofjustice-State has a definite role to play in protecting the ~ witnesses-On facts, witness has committed contempt ofcourt-Inquiry: initiated by Supreme Court revealed that the witness has accepted money for changing her stand-Witness sentenced to one year simple imprisonment-Supreme Court directing Income Tax authorities to initiate appropriate proceedings against the witness.

In a communal violence incident in the State of Gujarat, accused set lire to a shop in which 14 persons died. Appellant claimed to be an eye witness to the incident. A trial Court in Gujarat acquitted all the accused on the ground that many witnesses including the appellant turned hostile. _). _ The appellant made statements before National Human Rights Commission and other bodies after the trial alleging that during the trial she was intimidated, threatened and coerced to depose falsely and turn hostile. The State filed an appeal before Gujarat High Court challenging the acquittal of the accused by the trial court. The State also filed miscellaneous petitions before High Court for retrial by the trial court. The High Court dismissed the appeal and miscellaneous petitions.

This Court, in appeal by the appellant, directed a re-trial by a trial court under ·-"' the jurisdiction of Bombay High Court on finding glaringly demonstrating subversion of justice delivery system and no congeal and conducive atmosphere still prevailing in the State of Gujarat for conducting f. resh 1082 SCPREME COURT REPORTS (200612 S. C. R. trial. ). When the re-trial was on before a trial court in Maharashtra, the appellant gave press statements disowning the statements made before this Court and before various bodies about intimidation and coercion for turning hostile. A miscellaneous petition was filed against the appellant for committing contempt of court. This Court directed an inquiry by appointing Registrar General of' this Court as an lnquiry Officer.

This Court also directed the appellant to file an affidavit before the Registrar 'l General indicating details of bank accounts, advances and investments in moveable and immoveable properties and its sources thereof of her and her family members. The lnquiry Officer submitted an Inquiry report to this court finding, inter alia, that the appellant was induced by money for changing her stands; and that the appellant and her family members could not explain the assets and investments in their possession. The appellant objected to the Inquiry Report contending that she ,..

was a puppet in the hands of another and had made such statements only at the instance of others; that the procedure adopted by the Inquiry Officer was not fair and transparent; that the Inquiry Officer did not give any opportunity to cross-examine the witnesses; that the request for examining the Chairman of the National Human Rights Commission was rejected without reasons; that the Inquiry Officer acted with some pre-conceived conclusions and his report was based on presumptions; that she has signed only the vakalatnama and not the affidavit in the appeal and hence, she is not responsible for the statements made in the affidavit; that she had not approached this Court for fresh trial; and that she was not the only ,. _ person who turned hostile and no action ha_d been taken against others. Disposing of the miscellaneous petition with directions, the Court HELD: 1. 1. It is for the appellant to explain whether she was telling the truth or making a false statement.

Merely stating that she was acting as a puppet in the hands of another is not sufficient. A bare reading of the observations made in the Inquiry Report makes it clear that what is .... being submitted by the appellant is by reading observations out of context. On a bare perusal of the proceedings of the enquiry, it is clear that the procedure adopted was quite transparent. The proceedings were conducted in the presence of the counsels for the parties and/or the parties themselves. ~) ZAHIRA IHAB! BULLAH SHEIKH r. STATE OF GUJARAT J083 1. 2. The grievance of the appellant th at she was not given \ opportunity to cross--examine the witnesses is of no consequence. What questions in cross-examination by counsel could h:ave been put were asked by the Inquiry Officer whenever and suggestion was made in that regard. .

' If a party did not soggiest any question to be put to u witness by the Inquiry Officer, it is not open for him or her to say that opportunity for crossexamination was not given. [1097-E-F] 1. 3. The grie,vance of the appellant tha•t the request to call the Chairman, NHRC was turned down without reaso. 11s is rejected. The • allegation that the statement of the appellant given in "he presence of the Chairman, NHRC and other members was not properly recorded or that somebody else's ~. tatement was recorded and the appella•nt was asked to put the si,gnatures, as she bas tried to make out is clearly i. mtenable. Such a plea •. should not have been raised as it reflects on the credibility of ·functic1naries of a bod)~ like NHRC. (1097-F-G) 1. 4. The allegation that the Inquiry Officer acted with some precouc. eived ideas and/or re,{lort was based on presumptions is no,t correct. The, conclusions drawn by' the Inquiry Officer have thieir foundi.

1tion on materials which have been , opportunity·for "cross examination" was not given. A further grievance is . made that a request to call the Chainnan, NHRC was turned down without reasons. This according to us is a plea which needs to be noticed and rejected. The statement of Zahira was recorded by NHRC in the presence of the Chairman (a retired Chief Justice of thi51~,urt) and se-veral members which included a retired Judge ofthis 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. -7 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 .. j affect credibility or acceptability ofthe report.

The allegation that the Inquiry • Officer acted with some pre-conceived ideas and/or report was based on presumptions is not correct. The conclusions drawn by the Inquiry Officer have their foundation on materials which have been elaborately discussed by the Inquiry Officer. Much has been made of the fact that original affidavit was not filed. The reason for this has been explained, the Inquiry Officer has dealt with the question in detail and undisputedly original affidavit has been brought on record. The stand that mere filing of a vakalatnama without an affidavit by the concerned person cannot constitute a statement by the person • who has filed the vakalatnama is clearly unacceptable. The appeal undisputedly has been filed by Zahira and it has been candidly admitted that she has filed the vakalatnama for filing the appeal. She cannot now tum around and say that she was not a party in the appeal.

Above being the position, there is no reason to discard the report given by the Inquiry Officer which is accordingly accepted. Further, what remains to be done is what is the consequence of Zahira having made such conflicting statements and the effect for changing her stand from the statements made at .. different stages, particularly in this Court. Whatever be the fate of the trial before the Court at Mumbai where the trial is stated to be going on and the effect of her statement made during trial shall be considered in the trial itself. Acceptance of the report in the present proceedings cannot have any determinative role in the trial. Serious questions arise as to the role played by witnesses who changed their versions more frequently than chameleons. Zahira's role in the whole case is an eye-opener for all concerned with the administration of criminal justice.

As highlighted at the threshold the criminal justice system is likely to be affected if persons like Zahira are to be left unpunished. Not only the role of Zahira but also of others whose conduct and approach before the Inquiry Officer has been highlighted needs to be noted. The Inquiry Officer has found that Zahira could not explain her assets and the explanations given by her in respect of the sources of bank deposits etc. have been found to be unacceptable. We find no reason to take a different view. During the course of hearing, we had asked learned counsel appearing for Zahira as to whether they would like to be heard on the question of the consequential order, if any, if the report is accepted and Zahira is found to have committed contempt or to have deflected the course of justice by ; unacceptable methods. Learned counsel for Zahira stated that they would not like to make statements in that regard and would only stress on the report· being not accepted.

Zahira has committed contempt of this Court Parliament by virtue of Entry 77 List I is competent to enact a law relating to the powers of the Supreme Court with regard to contempt of itself and such a law may prescribe the nature ofpunishment which may be imposed on a conlemner by virtue of the provisions of Article 129 read with Article 142(2) ofthe Constitution oflndia, 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 ofthe Supreme Court, except that Section 15 ofthe Act prescribes procedural mode for taking cognizance of criminal contempt by the Supreme Court also. Section 15, however, is not a substantive provision conferring contempt jurisdiction. The judgment in Sukhdev Singh Sodhi v.

ChiefJustice and Judges of the PEPSU High Court AIR (1954) SC 186 as regards the extent of "maximum punishment" which can be imposed upon a contemner must, therefore, be construed as dealing with the powers of the High Courts only and not of this Court in that behalf. In Supreme Court Bar Association v. Union ofIndia and Anr. , AIR (1998) SC 1895, this Court expressed no final opinion on that question since that issue, strictly speaking, did not arise for decision in that case. The question regarding the restriction or limitation on the extent of punishment, which this Court may award while exercising its contempt jurisdiction, it was observed, may be decided in a proper case, when so raised. We may note that a three Judge Bench in Suo Motu Contempt >-. Petition 301 of2003 by judgment dated 19. 12. 2003 in re: Sri Pravakar Behera (2003 (10) SCALE 1726) imposed cost of Rs. 50,000/-.

The complex pattern of life which is never static requires a fresher outlook and a timely and vigorous moulding of old precepts to some new conditions, ideas and ideals. Ifthe Court acts contrary to the role it is expected to play, it will be destruction of the fundamental edifice on which justice delivery system stands. People for whose benefit the Courts exists shall start doubting the efficacy of the system. Justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking that "the Judge was biased". (Per Lord Denning MR in Metropolitan Properties Ltd. v. Lannon, [1968] 3 All ER 304 (CA). The perception may be wrong about the judge's bias, but the Judge concerned must be careful to see that no such impression gains ground. Judges like Ceaser's wife should be above suspicion (Per Bowen L. J. in lesson v. General Council ofMedical Education, (1890) 43 Ch. D. 366). ....

By not acting in the expected manner a judge exposes himself to unnecessary criticism. At the same time the Judge is not to innovative at pleasure. He is not a Knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness, as observed by Cardozo in "The Nature of Judicial Process". < It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep promise to justice and it cannot stay petrified and sit non-challantly. The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection loose hope (See Jennison v. Backer, [1972] 1All ER 1006). Increasingly, people are believing as observed by SALMON quoted by Diogenes Laertius in "Lives of the Philosophers" laws are like spiders' webs: if some light or powerless thing falls into them, it is caught, but a bigger one can break through and get away".

Jonathan Swift, in his "Essay on the Faculties of the Mind" said in similar lines: "Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through". As has been noticed earlier in the earlier case reported in [2004] 4 SCC 158, the role to be played by Courts, witnesses, investigating officers, public prosecutors has to be focused, more particularly when eyebrows are raised about their roles. In this context, reference may be made to Section 311 of the Code which reads as follows: "311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

" - ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, l. ] ) JO) ·. The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequences, the . first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it.

It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvfous reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. The object underlying Section 311 of the Code is that there may not be failure ofjustice on account ofmistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side.

The determinative factor is whether it is essential to the just decision ofthe case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to ail proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage ofsuch 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 . i summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence.

In such cases, the Court has to act under the second part ofthe section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by *e Presiding Judge. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness.

Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of crossexamination to the complainant. These aspects were highlighted in Jagat Rai v. State of Maharashtra, AIR (1968) SC 178. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application ofthese principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.

In 1846, in ;a judgment which Lord Chancellor Selbome would later ) describe as "one ofthe ablest judgments of one of the ablest judges who ever sat in this court," Vice-Chancellor Knight Bruce said : "The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however, valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much. " The Vice-Chancellor went on to refer to paying "too great a price .... for truth". This is a formulation which has subsequently been frequently invoked, ·including by Sir Gerard Brennan.

On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: "The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards. " Restraints on the processes for determining the truth are multi-faceted. They have emerged in numerous different-ways, at different times and affect different areas ofthe 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 any every step. " The principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing . development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impart and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the law of evidence.

There is, however, an overriding and, perhaps, unifying principle. As Deane, 1. put it: "It is desirable that the rc:quirement of fairness be separately identified since it transcends the context of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common la'! V requires to be observed in the administration of th1e substantive criminal law. " This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts ·~ through the State and prosecuting agencies.

Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law·. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effectivt; 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 the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to. be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz.

whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage ofjustice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair. trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the. discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law.

It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an' overhasty stage-managed, tailored and partisan trial. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. "Witnesses" as Bentham said: are the eyes and ears of justice. Hence, the importance and primary of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial.

The incapacitation may be due to several factors, like the witness being not in a • position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account ofnumerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties.

Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery. Doubts are raised about the roles of investigating agencies. Consequences of defective investigation have been elaborated. in Dhanraj Singh :ii) Shera and Ors. v.

State of Punjab, JT (2004) 3 SC 380. It was observed as follows: "5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it wouId not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating • officer if the investigation is designedly defective. (See Karnel Singh v. State of M. P.. [1995] 5 SCC 518). 6. In Paras Yadav and Ors. v. State of Bihar, [1999] 2 SCC 126 it J. , 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 ofBihar and Ors. , [1998] 4 sec 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 ofjustice. The view was again re-iterated in Amar Singh v. Ba/winder Singh and Ors. , [2003] 2 SCC 518)": The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he had deposed.

Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation. We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the "TADA Act") have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day.

If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies. :-~, Legislative measures to emphasise prohibition against tampering with witness, victim or infonnant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if not more, as the interest of the Individual accused.

In this courts have a vital role to play. In the aforesaid background, we direct as follows: (I) Zahira is sentenced to undergo simple imprisonment for one year and to pay cost of Rs. 50,000/- and in case of default of . ii payment within two months, she shall suffer further imprisonment of one year; (2) Her assets including bank deposits shall remain attached for a period ofthree months. The Income Tax Authorities are directed to initiate proceedings requiring her to explain the sources of J acquisition of various assets and the expenses met by her during the period from 1. 1. 2002 till today. It is made clear that any observation made about her having not satisfactorily explained the aforesaid aspects would not be treated as conclusive. The proceedings shall be conducted in accordance with law. The Chief Commissioner, Vadodara is directed to take immediate steps for initiation of appropriate proceedings.

It shall be open to Income tax authorities to direct continuance ofthe attachment in accordance with law. Ifso advised, the Income Tax Authorities shall also require Madhu Srivastava and Bhattoo Srivastava to explain as to why the claim as made in the VCD of paying money shall not be further enquired into and if any tangible material comes to surface, appropriate action under the Income Tax Law shall be taken notwithstanding the findings recorded by the Inquiry Officer that there is no acceptable material to show that they had paid money, as claimed, to Zahira. We make it clear that we are not directing initiation of proceedings as such, but leaving the matter to the Income Tax Authorities to take a decision. The Trial Court shall decide the matter before it without being influenced by any finding/observation made by ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J. ] J109 the Inquiry Officer or by the fact that we have accepted the A report and directed consequential action.

The applications are accordingly disposed of. B. S. Misc, Petition disposed of. B