Holding

Zahira Habibullah Sheikh committed contempt of the Supreme Court, and the inquiry report was accepted, leading to her conviction and sentencing.

Summary

In a communal violence case in Gujarat, the trial court acquitted the accused after several witnesses, including Zahira Habibullah Sheikh, turned hostile. Zahira later alleged intimidation and coercion before various bodies, prompting the Supreme Court to order a retrial in Maharashtra. During the retrial she publicly recanted her earlier statements, leading the Court to treat her conduct as contempt of its earlier directions. An inquiry by the Registrar General found that Zahira had received substantial sums of money and could not explain her assets, indicating inducement to change her testimony. The Court held the inquiry report reliable, rejected Zahira's objections, and concluded she had committed contempt of the Supreme Court. Consequently, she was sentenced to one year simple imprisonment, a fine of Rs.50,000, and her assets were attached pending tax investigation.

Issues considered

Whether Zahira Habibullah Sheikh committed contempt of the Supreme Court by altering her statements and refusing to cooperate with the inquiry.
Whether the inquiry report prepared by the Registrar General is admissible and sufficient to support a contempt finding.
Whether the Supreme Court can impose imprisonment for contempt in the absence of a specific statutory provision.
Whether Section 311 of the Criminal Procedure Code and related evidentiary provisions apply to the protection of witnesses and the power to summon them.

Legislation cited

Code of Criminal Procedure, 1973s. 311
Contempt of Courts Act, 1971s. 15
Indian Evidence Act, 1872s. 60, s. 64, s. 91
Terrorist and Disruptive Activities (Prevention) Act, 1987

Subjects

contempt of courtwitness intimidationretrialSection 311 CrPCfair trialwitness protectionasset attachmentSupreme Court

Judgment

• '! \ ZAHIRA HABIBULLAH SHEIKH AND ANR . A
v.
STATE OF GUJARAT AND ORS.

MARCH 8, 2006

[ARIJIT PASA YAT AND H.K. SEMA, JJ.] B

~
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
c
in another State on basis of the 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 D
~ 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.
E
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
_)._
F
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 G
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
1081 H
1082 SCPREME COURT REPORTS (200612 S.C.R.

A 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
B 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
c 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.
D
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
E 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
F 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
G
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
H 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 A
\ 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 cross- B
examination 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 C
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 pre- D
couc.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 ,<:Jaborately discussed by the Inquiry O'fficer.
The contention of the appel.hmt that by mere filing of a vakalatn•ama
without an affidavi~, it cannot ·constitute a statement by the person "vho E
has filed the vakalatnama is clearl',y unacceptable. The appeal undisputed;ly
has been filed by the appellant :anc.I it has been candidly admitted that she
has filed the vakalatnama for· filing the appeal. She cannot now turn
around and say that she was not a p111rty in the appeal. There is no reason
to discard the report given by t~e Inquiry Officer which is accordingly
accepted. (1098-A·DJ F
1.5. The role of the appellant in the whole case is an eye-opener for
all concerned with the administral'ion of criminal justice. The criminal
justice system is likely to be affecte.d if persons like the appellant are to
be left unpunished. The Inquiry Offic'er has found that the appellant could
not explain her assets and the explan.ations given by her in respect of the G
sources of bank deposits etc. have bt~en found to be unacceptable. This
Court finds no reason to take a different view. The appellant has
committed contempt of this Court. [10•98-E-G)

Zahira Habibullah Sheikh and Anr. w. State of Gujarat and Ors., (2004)
H
1084 SUPREME COURT REPORTS [2006) 2 S.C.R.

A 4 SCC 158 and (2004) 5 SCC 353; Sukhdev Singh Sodhi v. ChiefJustice and
Judges of the PEPSU High Court, AIR (1954) SC 186 and Supreme Court )
Bar Association v. Union of India and Anr., AIR (1998) SC 1895; Re: Sri
Pravakar Behera (2003) 10 SCALE 1726, referred to.

Metropolitan Properties Ltd. v. Lannon, (19681 3 All ER 304 (CA);
B Lesson v. General Council of Medical Education, (1890) 43 Ch.D. 366 and
Jennison v. Backer, [19721 1 All ER 1006, referred to.

1.6. Witnesses are the eyes and ears of justice. If a witness himself is
•
.~ncapacitated from acting as eyes and ears of justice, the trial gets putrefied
C and paralysed and it no longer can constitute a fair trial. Time has become
ripe to act on account of numerous experiences faced by Courts on account
of frequent turrning of witnesses as hostile due to threats, coerdon, 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
D 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
eve11 in slow process but irreversibly and irretrievably, which if allowed
would undermine and destroy public confidence in the administration of
E 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 of India. There comes the need for protecting the witness.
Time has come when serious and undiluted thoughts are to be bestowed
F foq1rotecting witnesses so that ultimate truth is presented before the Court
and justice triumphs and that the trial is not reduced to a mockery. •
11106-B-FJ
1.7. The State has a definited role to play in protecting the witnesses.
As a protector of its citizens, it has to ensure that during a trial in Court
G 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
H is supposed to know these fundamental requirements and this needs no
\
i
~

ZAHIRA HABIBULLAH SHEIKH v. STA TE OF GUJARAT 1085
retaliation. If ultimately truth is to be arrived at, the eyes and ears of A
J.,
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. (1107-D-G (

1.8. Legislative measures to emphasise prohibition against tampering
with witness, victim or informant have become the imminent and inevitable B
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 to the needs to 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
c
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. (1107-H; 1108-A-B(

Jagat Rai v. State of Maharashtra, AIR (1968) SC 178 and Dhanraj D
Singh @ Shera and Ors. v. State of Punjab, JT (2004) 3 SC 380, referred
to.

1.9. The appellant is sentenced to undergo simple imprisonment for
one year and to pay cost of Rs. 50,000 and in case of default of payment
within two months, she shall suffer further imprisonment of one year; E
(1108-CJ

I.IO. The assets of the appellant including bank deposits shall remain
attached for a period of three months. The Income Tax Authorities are
·directed to initiate proceedings requiring her to explain the sources of
.~
acquisition of various assets and the expenses met by her. (II 08-D( F
CRIMINAL APPELLATE JURISDICTION : Criminal Mis. Petition
Nos. 6658-6661 of 2004 In Criminal Appeal Nos. 446-449 of 2004.

From the final Order and Judgment dated 19 .12.2003 of the Gujarat
High Court in Cr!. Misc. Appln. No. 10315/2003 in C.R.A. No. 583/03 and G
final Order and Judgment dated 26.12.2003 in Crl. A. No. 956/03 .
... ' WITH
Cr. M.A. No. 7677/03 with Cr. M.A. No. 9825/03.

Dinesh Kumar Garg, Manzolor Ali Khan, Pavit Singh, Ms. Aparna H

/
1086 SUPREME COURT REPORTS [2006] 2 S.C.R.

A Bhat, P. Ramesh Kumar, Ms. Afreen Siddiqui and Ms. Madhulika Mohta for ).
the Appellants.

Ms. Hemantika Wahi, Dr. Kailash Chand, A.P. Mayee, V.N. Raghupathy,
Sanjay Jain, S. Muralidhar, Manoj Goel, Shuvodeep Roy, Wajiih Shafiq, Brij
Bhushan, Manoj Goel, Abha R. Sharma and H.A. Raichura for the
B Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. The case at hand immediately brings into mind
..
two stanzas ( 14 and 18) of Eighth Chapter of Manu Samhita dealing with
C role of witnesses. They read as follows:
"Stanza 14

"Jatro dharmo hyadharmena

D Satyam Jatranrutenacha

Hanyate prekshyamananam

Hatastrata Sabhasadah"

E (Where in the presence of Judges "dharma" is overcome by
"adharma" and "truth" by "unfounded falsehood", at that place they
(the Judges) are destroyed by sin)

Stanza 18

"Padodharmasya Kartaram
F
Padah sakshinomruchhati

Padah sabhasadah sarban

pado rajanmruchhati"
G
(In the adharma flowing from wrong decision in a Court of law,
one fourth each is attributed to the person committing the adharma,
witness, the judges and the ruler".)

This case has its matrix in an appeal filed by Zahira Habibullah
H
ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.] ] 087

hereinafter referred to as 'Zahira and Another namely, Teesta Setelwad' and A
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 B
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 C
judgment dated 12th April, 2004 in Zahira Habibullah Sheikh & Anr. v. State
of Gujarat and Ors., [2004] 4 SCC 158, the following directions were given:

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

78. Since we have directed re-trial it would be desirable to the E
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.
F
79. Sub-section (8) of Section 173 of the Code permits further
investigation, and even de hors any direction from the Court as such,
it is open to the police to conduct proper investigation, even after the
Court took cognizance of any offence on the strength of a police
report earlier submitted."
G
A review petition (Zahira' Habibulla H. Sheikh and Anr. v. State of
Gujarat and Ors., [2004] 5 SCC 353 was filed by the State of Gujarat which
•. was disposed of by order dated 7th May, 2004.

While the trial was on before a Court in Maharashtra pursuant to this H
Court's direction, it appears Zahira gave a press statement in the presence of
1088 SUPREME COURT REPORTS (2006] 2 S.C.R.

A some government officials that what she had stated before the trial Court in ,.'
Gujarat earlier was correct. A petition was filed before this Court alleging
that Zahira's statement was nothing but contempt of this Court. At a press
conference held on 3.11.2004 few days before the scheduled appearance of
the witnesses in the trial, she had changed her version, disowned the statements
B made in this Court, and before various bodies like National Human Rights
Commission. Considering the petition filed orders were passed on I0.1.2005
and subsequently on 21.2.2005, giving directions which read as follows:

Order dated IO .1.2005

c Having heard learned counsel for the parties, we are of the
considered view that a detailed examination is necessary as to which
version of Zahira Habibullah Sheikh is a truthful version. It is necessary
to do so because various documents have been placed to show that
she had made departure from her statements/stands at different points
of time. Allegations are made by Mr. P.N. Lekhi, learned senior
D 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/
E 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
F pressurised to depose/make statement(s) in any particular way, by
any person or persons, and (b) if the answer to (a) is in the affirmation,
who the person/persons is (or) are.

For the purpose of inquiry, he may take assistance of a police officer
G of the rank of Inspector General of Police. Though a suggestion was
given by Mr. For the purpose of inquiry, he may take assistance of
a police officer of the rank of Inspector General of Police. Though a
suggestion was given by Mr. Anil Diwan, learned senior counsel
appearing on behalf of Ms. Teesta Setalvad that it should be an officer
from the CBI, Mr. P.N. Lekhi, Mr. K.T.S. Tulsi and Mr. Mukul
H
ZAHIRA HABIB ULLAH SHEIKH v. STATE OF GUJARAT [PASA YAT, J.] 1089
Rohtagi, learned senior counsel, opposed the same. In our view, an A

- _..., efficient, impartial and fair officer should be selected. Therefore, we
leave the choice to the Registrar General to nominate an officer of the
Delhi Police, as noted above, of the rank of Inspector General of
Police. The inquiry shall be conducted on the basis of affidavits to be
placed before the Registrar General and if he deems fit, he may
examine any witness or witnesses to substantiate the contents of the B
affidavits. We do not think it necessary to lay down any broad
guidelines as to the modalities which the Registrar General will adopt.
'.; He is free to adopt such modalities as he thinks necessary to arrive
~ at the truth, and to submit the report for further consideration.

The affidavits and documents if any in support of the respective
c
stands shall be filed before the Registrar General within a period of
four weeks from today.

We make it clear that the pendency of the inquiry will not be a
ground for seeking adjournment in the pending trial.
D
We have perused the letter of the trial court seeking extension of
-<\ time. The time is extended till 31st of May, 2005 for completion of
trial.

The matter shall be placed for consideration of the Report to be
submitted, after three months. E

Order dated 21.2.2005

Heard.

The parties are granted four weeks' time to file the affidavits in F
terms of the earlier order dated 10.01.2005. We make it clear that we
have not taken note ofparagraph-8 of the application filed in Crl.M.P.
Nos.1908-1911 of 2005.

Criminal Miscellaneous Petition Nos.1908-1911 of 2005 are
accordingly disposed of. G
Crl.M.P. Nos.6658-6661 of 2004
i
By order dated I 0.01.2005, the question as to whether Ms. Zahira
Habibullah Sheikh was in any manner induced to depose in a particular
~·
way, has been directed.to be enquired into, we think it appropriate to H
1090 SUPREME COURT REPORTS [2006] 2 S.C.R.

A direct her to file an affidavit indicating details of her bank accounts,
advances, other deposits, amounts invested in movable or immovable
properties and advances or security deposits, if any for the aforesaid
purpose, along with the affidavit to be filed before the Registrar
General of this Court. She will also indicate the sources of the aforesaid
deposits, advances and investments, as the case may be. She shall
B 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
c 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.

D Since, we have extended the time for filing of affidavits by the
parties, the enquiry report shall be submitted by the Registrar General
within three months from today.

Put up thereafter."

E Considering the materials placed before the Inquiry Officer, he has
submitted his report. Parties were permitted to file statements indicating their
views so far as the report is concerned. The findings recorded by the Inquiry
Officer with reference to various documents are essentially as follows:

(I) The FIR dated 2.3.2002
F (2) Memorandum dated 21.3.2002 before the Chairman, NHRC
(3) Statements made on 11.5.2002 and 20.7.2002 before the
•
concerned Citizen Tribunal and Nanavati Commission respectively
(4) Statements dated 7. 7.2003 of the Press Conference in Mumbai
G (5) Statement dated 11. 7.2003 before NHRC

(6) Plain copy of the affidavit dated 8.9.2003 attested by Notary
submitted before this Court as additional document in SLP(Crl.)
3770/2003
(7) Statement recorded on 16.12.2003 at the Santa Cruz Police Station,
H
ZAHIRA HABIBULLAHSHEIKH v. STATE OF GUJARAT [PASAYAT, J.] J091

M~~ A
...
(8) Affidavit dated 3.11.2004 submitted before Collector, Vadodara
(9) Affidavit dated 31.12.2004 submitted before this Court
(10) Affidavits dated 20.3.2005, 12.4.2005 and 24.4.2005 before the
Inquiry Officer. B
The Inquiry Officer has categorically recorded that Zahira had changed her
stands at different stages and has departed from statements made before this
Court. So far as the question whether she was threatened, coerced, lured,
induced and/or in any manner pressurized to make statements in a particular
way by any person or persons, it has been found that Zahira has not been able C
to explain the assets in her possession in spite of several opportunities having
been granted. The Inquiry Officer had referred to transcript of conversations
purported to have been made between a representative of "Tehlaka" and Shri
Tushar Vyas, Shri Nisar Bapu and Shri Chandrakant Ramcharan Srivastava
@ Bhattoo Srivastava, Shri Madhu Srivastava, and Shri Shailesh Patel. These
persons were also given opportunity to explain their stands as the transcript D
of the Video Compact Disc produced by Tehlaka.com clearly indicated that
money was paid to Zahira to change her stand. The Inquiry Officer has
referred to the explanations offered by Zahira and her family members and
found that she could not explain various receipts of money received by her
and deposits made in their bank accounts. The amount involved was nearly E
rupees five lakhs. The explanation offered by Zahira and her family members
was found unacceptable. The details indicated in the affidavit dated 24.4.2005
filed by Zahira explained the following details:

"1. 'Rs.65,000/- Sale consideration of one house sold in the month
of November, 2001 F
\.:
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.
G
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 o(house received from
Government through cheque in favour of her mother
H
1092 SUPREME COURT REPORTS [2006] 2 S.C.R.

A 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
B 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

C 10. Rs.20,000 & Rs.25,000/- Investment in two small plots of 15x30ft.
each by her brother Nasibullah
1I. Rs.45,000/- Deposited by her in the Bank Account No.11348
with Bank of Baroda, Nawapura Branch at Vadodara
12. Rs.52,045/- Deposits in a joint account No.16754 with her brother,
D Nasibullah with Syndicate Bank, Goddev Branch, Bhayander
•
13. Rs.1,37,384/- Deposits in her brother's account No.16667 with
Syndicate Bank, Goddev Branch, Bhayander
14. Rs.1,42.256/- Deposits in her mother's account No.16669 with
Syndicate Bank, Goddev Branch, Bhayander.
E
The Inquiry Officer repeatedly asked Zahira and her brother H. Nafitullah
about the names and addresses of purchasers of scrap and further details
which were not supplied.

Two charts have been prepared by the Inquiry Officer showing the
F discrepancies. They read as follows:
ZAHIRA HA~IBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.) ) 093

CHART NO. I A
•
Receipts

S. No. Amount Remarks

I. Rs. 50,000/- & Received as compensation of her B
Rs. 40,000/- sister's death

2. Rs. 25,000/- Received as damages of the house.

3. Rs. 30,000/- Received from insurance company
against damages of motorcycle. c
4. Rs. 18,800/- Received as sale price of one three-
wheeler

5. Rs. 6,296/- Receipts from clearing zone-
Received as interest against bond of D
which has been alleged to be
purchased out of the balance amount
of Damages of sister's death.

TOTAL Rs. 2,02,096/- E
.

Note: Rs. l,82,000/- have been claimed to be treated as receipts against

. the sale price of the scrap which has not been acceded to on the
ground noted on page No. 106-107 despite if this amount is
deemed to be accepted, then the total of the receipts will be Rs.
3,84,096 (Rs. 2,02,096 + Rs. 1,82,000). F
CHART NO. 2

Investments:
.

S. No. Amount Remarks
G
I. Rs. 45,000/- Deposited by her in the Bank
.
Account No. 11348 with Bank of
Baroda, Nawapura Branch at
Vadodara.
H
1094 SUPREME COURT REPORTS [2006] 2 S.C.R.

A 2. Rs. 52,045/- Deposits in a joint account No.
16754 with her brother, Nasibullah
with Syndicate Bank, Goddev
Branch, Bhayander.

3. Rs.1,37.384/- Deposits in her brother's account
B No. 16667 with Syndicate Bank,
Goddev Branch, Bhayander.

4. Rs. 1,42,256/- Deposits in her mother's account
No. 16669 with Syndicate Bank,
c Goddev Branch, Bhayander.

5. Rs. 73,000/- Purchase of two plots and
construction to the tune of Rs.
66,000/- and spent Rs. 7,000/- on
renovation of best bakery building.
D
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. :
E
8. Rs. 30,727/- Mother's account (Ale. No. 8881)

Total Rs. 5,88,412/-

F 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. 2,04,3 I 6/-.

The Inquiry Officer recorded the following findings:
G
"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
H
ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.] 1095
also played a role in reaching at an agreement. However, the element A
of threat cannot be altogether ruled out. One cannot loose sight of the
fact that first contact over cell phone was. made by Sh. Madhu
Srivastava and Sh. Bharat Thakkar and not by Sh. Nafitullah. The
evidence of Sh. Abhishek Kapoor about presence of Sh. Madhu
Srivastava, MLA, in the Court at the time of testimony of Ms. Zahira B
can also be treated as an indication of this factor."

In addition to the aforesaid conclusions the Inquiry Officer has also
recorded that after a particular point of time. contemporaneous to when she
started changing her stand, a society called Jan Adhikar Samiti came to the
picture. It appears from the statements of functionaries of Jan Adhikar Samiti C
that substantial amount has been spent for meeting the expenses of Zahira

- and her family members. But the Inquiry Officer has found that even though .
materials do exist to show that money played a vital role in the· change of
stand yet it could not be directly liriked to Madhu Srivastava and Bhattoo
Srivastava.
D
Zahira has objected to acceptance of the Inquiry Officer's report. The
. grounds on which the· objections have been raised essentially as follows:

(1) The Inquiry Officer has tailored facts to fit into his pre-conceived
conclusions. There has been deliberate omissions and distorti6n
of facts. E _
(2) No cross examination of the witnesses whom the Inquiry Officer
has examined was permitted.

(3) There was no transparent procedure adopted and the agreed
procedure was never followed.
)..
F
(4) There was lack of fair objective and ~easonable approach. The
pre-requisites of an objective enquiry were missing. There was
no intelligent appreciation of facts.
(5) The Inquiry Officer appeared to be guided by Teesta Setalwad.
The conclusion that Zahira had approached this Court for' a G
fresh trial .is wrong.
(6) The request for examining the Chairman, NHRC was not
accepted without indicating any reason.
(7) · Zahira was not only the person who had made departure from
H
1096 SUPREME COURT REPORTS [2006) 2 S.C.R.

A her stand purportedly recorded during investigation, there were
others but no effort was made to take any action against them. •
Though many persons had died or injured, Citizen for Justice
and Peace and its functionaries never bothered to take up their
cases. It is surprising why they only chose Zahira.

B (8) The petition filed before this Court was not in fact signed by
Zahira but was signed by Teesta and the mere fact that she had
filed a Vakalatnama would not make her responsible for the
statements made in the affidavit.
(9) Upto the point of time of the Press Conference Zahira was under
c the control of Teesta and she was a mere puppet in her hands
and whatever statement was purportedly made by Zahira was in

-
fact made by Teesta. Teesta's role in the whole episode is very
suspicious. She had spent lot of money taking advantage of the
helplessness of Zahira and has used her for her machination.
Zahira was tutored to make statements on different occasions.
D 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
E 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.
F
On behalf of Mrs. Teesta it has been submitted that report deserves to
be accepted. Further enquiry as to the role of Madhu Srivastava and the
sources of money which has come to the possession of Zahira may be further
proved. The Inquiry Officer has clearly indicated the roles played by Madhu
Srivastava and his cousin Chandrakant in intimidating/coercing witnesses
G like Zahira and family members. Assistance was given by Sudhir Sinha,
Commissioner of Police, Surat to Zahira to hold the press conference on
3.11.2004 just a day before her testimony was to be recorded in Mumbai.
Similar assistance was given by Shri Bhagyesh Jha, Collector, Vadodara to
Zahira. The directions by the Home Secretary Shri S.C. Murmu, to Shri
H Sudhir Sinha, Commissioner of Police, to attend the proceedings before the
.
ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.] 1097

-
'·
~ Inquiry Committee clearly show the partisan approach. The role of the State A
of Gujarat in lodging Zahira and her family members at Silver Oak Club,
Gandhi Nagar for a period of 10 days raises big question mark as to who met
the expenses. These clearly show that sinister roles were played by State of
Gujarat's functionaries. It has been submitted that Teesta is being targeted for
exposing the evil deeds of the aforesaid persons.
B
At the outset, it has to be noted that we have not gone into the question
as to whether Teesta has done anything wrong in the process. It was for
Zahira to explain whether she was either telling the truth or making false
statement. Merely stating that she was acting as a puppet in the hands of
Teesta is not sufficient. Much has been made by learned counsel ror Zahira
about some observations made by Inquiry Officer in his report. A bare reading
c
of the observations makes it clear that what is being submitted by learned
. counsel for Zahira is by reading observations out of context.

The procedure adopted during enquiry has been characterized to be
unfair and not fair and transparent procedure. On a bare perusal of the D
... proceedings of the enquiry, it)s. clear that the procedure adopted was quite
transparent. The proceedings we~econducted in the presence of learned counsel
for the parties and/or the parties themselves. After the questions were asked
by the Inquiry Officer, learned counsel and the parties were asked if any
further questions were to be asked and as the records revealed whenever any
question was suggested that was asked. Grievance is made that scope for E
"cross examination" was not given. That according to us is really of no
consequence. What questions in "cross examination" by learned counsel could
have been put, were asked by the Inquiry Officer whenever any suggestion
was made in that regard. If a party did not suggest any question to be put to
a.witness by"the Inquiry Officer, it is not open for him or her to say that F
>- 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 of this Court). The allegation that it was not properly G
recorded or that somebody else's statement was recorded and Zahira was
-7
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.
H
1098 SUPREME COURT REPORTS [2006] 2 S.C.R.

A The other pleas which have been enumerated above do not in any way ..
j
affect credibility or acceptability of the report. The allegation that the Inquiry •
Officer acted with some pre-conceived ideas and/or report was based on
presumptions is not correct. The conclusions drawn by the Inquiry Officer
have their foundation on materials which have been elaborately discussed by
the Inquiry Officer. Much has been made of the fact that original affidavit
B 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
c 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
D 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
E 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
F 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
G 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
H ;
,.
ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.] 1099

unacceptable methods. Learned counsel for Zahira stated that they would not A
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 B
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 conlemner by virtue of the provisions of Article 129 read with Article
142(2) of the Constitution oflndia, 1950. Since, no such law has been enacted
by Parliament, the nature of punishment prescribed under the Contempt of C
Courts Act, 1971 may act as a guide for the Supreme Court but the extent
of punishment as prescribed under that Act can apply only to the High Courts,
because the 1971 Act ipso facto does not deal with the contempt jurisdiction
of the Supreme Court, except that Section 15 of the Act prescribes procedural
mode for taking cognizance of criminal contempt by the Supreme Court also.
Section 15, however, is not a substantive provision conferring contempt D
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 of India and Anr., AIR (1998) SC 1895, this Court expressed no final E
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 F
>-. 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. If the Court acts contrary to the role it is expected G
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. H
1100 SUPREME COURT REPORTS [2006] 2 S.C.R.

A v. Lannon, [1968] 3 All ER 304 (CA). The perception may be wrong about
the judge's bias, but the Judge concerned must be careful to see that no such
impression gains ground. Judges like Ceaser' s wife should be above suspicion
(Per Bowen L.J. in lesson v. General Council of Medical Education, (1890)
43 Ch.D. 366). ....
B 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". <

c It was significantly said that law, to be just and fair has to be seen
devoid of flaw. It has to keep promise to justice and it cannot stay petrified
and sit non-challantly. The law should not be seen to sit by limply, while
those who defy it go free and those who seek its protection loose hope (See
Jennison v. Backer, [1972] 1 All ER 1006). Increasingly, people are believing
D 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".
E
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.
F In this context, reference may be made to Section 3 11 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
G 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."
H
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 A
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 B
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 C
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 D
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 E
failure of justice on account of mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the statements of the witnesses
examined from either side. The determinative factor is whether it is essential
to the just decision 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 F
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 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 G
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.

H
1102 SUPREME COURT REPORTS (2006] 2 S.C.R.

A 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,
B 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.
C The Court will often have to depend on intercepted allegations made by the
parties, or on inconclusive inference from facts elicited in the evidence. In
such cases, the Court has to act under the second part of the section. Sometimes
the examination of witnesses as directed by the Court may result in what is
thought to be "filling of loopholes". That is purely a subsidiary factor and
cannot be taken into account. Whether the new evidence is essential or not
D 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
E 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
F witness of any particular party, the Court should give the right of cross-
examination to the complainant. These aspects were highlighted in Jagat Rai
v. State of Maharashtra, AIR (1968) SC 178.

Right from the inception of the judicial system it has been accepted that
discovery, vindication and establishment of truth are the main purposes
G underlying existence of Courts of justice. The operative principles for a fair
trial permeate the common law in both civil and criminal contexts. Application
of these principles involves a delicate judicial balancing of competing interests
in a criminal trial, the interests of the accused and the public and to a great
extent that of the victim have to be weighed not losing sight of the public
H interest involved in the prosecution of persons who commit offences.
ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.] ] 103

)
;a
In 1846, in judgment which Lord Chancellor Selbome would later A
describe as "one of the ablest judgments of one of the ablest judges who ever
sat in this court," Vice-Chancellor Knight Bruce said :

"The discovery and vindication and establishment of truth are main
purposes certainly of the existence of Courts of Justice; still, for the
obtaining of these objects, which, however, valuable and important, B
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 C
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 D
advanced in the following terms: "The evidence has been obtained at a price
which is unacceptable having regard to the prevailing community standards."

Restraints on the processes for determining the truth are multi-faceted.
They have emerged in numerous different -ways, at different times and affect
different areas of the conduct of legal proceedings. By the traditional common E
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 F
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 G
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, H
1104 SUPREME COURT REPORTS [2006] 2 S.C.R.

A 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
B 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
c 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
D 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
E 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
F 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
G 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.

H
ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.] 1105

The principles of rule of law and due process are closely linked with A
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 B
mind viz. whether something that was done or said either before or at the trial
deprived the quality of fairness to a degree where a miscarriage of justice has
resulted. It will not be correct to say that it is only the accused who must be
fairly dealt with. That would be turning a Nelson's eye to the needs of the
society at large and the victims or their family members and relatives. Each C
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 D
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 E
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 F
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 G
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.
H
1106 SUPREME COURT REPORTS (2006] 2 S.C.R.

A 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,
B 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
C negligence or ignorance or some corrupt collusion. Time has become ripe to
act on account of numerous experiences faced by Courts on account of frequent
turning of witnesses as hostile, either due to threats, coercion, lures and
monetary considerations at the instance of those in power, their henchmen
and hirelings, political clouts and patronage and innumerable other corrupt
practices ingeniously adopted to smother and stifle truth and realities coming
D 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
E 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
F 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
G circumspect in evaluating the evidence. But it wou Id not be right in
acquitting an accused person so le ly 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).
H
ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.) 1107

J., 6. In Paras Yadav and Ors. v. State of Bihar, [1999] 2 SCC 126 it A
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
B
would be denied to the complainant party.

7. As was observed in Ram Bihari Yadav v. State of Bihar 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
c
not only in the Law enforcing agency but also in the administration
of justice. 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
D
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 E
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
F
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 G
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
H
1108 SUPREME COURT REPORTS [2006] 2 S.C.R.

A 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
B 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:
c (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
D period of three 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
E
proceedings shall be conducted in accordance with law. The
Chief Commissioner, Vadodara is directed to take immediate
steps for initiation of appropriate proceedings. It shall be open
to Income tax authorities to direct continuance of the attachment
in accordance with law. If so advised, the Income Tax Authorities
F 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
G
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
H
ZAHIRA HABIBULLAH SHEIKH v. STATE OF GUJARAT [PASAYAT, J.] J 109
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