Gujarat High Court
Dahyabhai vs State on 17 June, 2010
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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CR.MA/1620/2010 2/ 35 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1620 of 2010
With
CRIMINAL
MISC.APPLICATION No. 1636 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
1
and 2 Yes, 3 to 5 -
No
=========================================================
DAHYABHAI
TRIBHUVANDAS PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
BS PATEL for
Applicant(s) : 1,
PUBLIC PROSECUTOR for Respondent(s) : 1,
MR
MM TIRMIZI for Respondent(s) : 2,
MR AJAYKUMAR CHOKSI for
Respondent(s) : 3,
MR VAIBHAV A VYAS for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 17/06/2010
ORAL
JUDGMENT
In the above petitions, the following prayers have been made by the petitioners under Section 319 of the Code of Criminal Procedure, 1973 (the Code):-
(A) be pleased to quash and set aside the order passed by learned Principal Sessions Judge, Mehsana in Sessions Case No.180 of 2002 dated 10.2.2010 below Exh. 656 impleading the petitioner as accused in criminal cases exercising the power under Section 319 of the Code;
(B) pending admission and final disposal of this petition, be pleased to stay further proceedings in pursuance of the order passed by learned Principal Sessions Judge, Mehsana in Sessions Case No.180 of 2002 dated 10.2.2010 below Exh.656 impleading the petitioner as accused in criminal case exercising the power under Section 319 of the Code;
(C) be pleased to award the cost of this petition;
(D) be pleased to pass such other and further orders as may be deemed fit and proper.
In both the above petitions, contentions on facts as well as on law and decisions of the Apex Court on exercise of powers under Section 319 of the Code relied on by the learned Counsel are same.
Before adverting to the issues involved in this petition about exercise of powers under Section 319 of the Code, it is necessary to give basic facts of the case.
That offences were registered as C.R. No.I-60/2002 with Visnagar Police Station, District Mehsana.
That investigation carried out by the investigating agency in the post Godhra Riot cases, National Human Rights Commission had approached the Hon'ble Supreme Court by way of a Writ Petition (Crl.) No.109 of 2003, wherein having regard to the seriousness and sensitivity of the post Godhra Riot cases, the Hon'ble Supreme Court vide order dated 26.03.2008 had directed the State Government to constitute a five member Special Investigation Team to undertake inquiry / investigation including further investigation in the nine cases stated therein.
That SIT so constituted submitted a consolidated report to the Apex Court on 11.02.2009 in a sealed cover and by another order dated 01.05.2009 gave further directions to SIT to continue and carry out any investigation yet to be completed or any other further investigation that may arise in the course of trial and to keep track on the progress of the trials so as to ensure that proceedings in the Court continue without any hurdles.
That SIT was further directed to submit periodical reports.
That initially, the then investigating officer had filed three charge-sheets in respect of the incident where 11 persons were brutally murdered. In the first charge-sheet, 50 accused persons were named, in the second 23 and in the third 6 accused persons against whom charge-sheets came to be filed. Thus, before the constitution of SIT by the Apex Court, the trial in respect of the above referred offences had already commenced and about 52 witnesses were examined by the Trial Court. After constitution of SIT and upon further investigation, two different charge-sheets were filed, over and above the 79 accused persons, four more persons including the then Investigating Officer namely the Police Inspector were added as an accused.
That original complainant had filed applications for further investigation under Section 173(8) of the Code which came to be rejected.
That later on, an application namely Exhibit 656 in Sessions Case No.180/2002 was preferred by the complainant under Section 319 of the Code requesting the Court to add : (i) Prahladbhai Mohanbhai Gosa and (ii) Dahyabhai Tribhuvandas Patel, the petitioners herein as accused in the offences.
After summoning the above two persons and hearing them and considering the submissions made by learned Advocates appearing on their behalf and decisions of the Apex Court and considering the evidences on record of the accused, namely deposition of the complainant himself PW-81 (Baloch Mohammed Iqbal Ahmedkhan) at Exhibit 568, PW-89 (Shabbirmiya Hasumiya) examined vide Exhibit 85, PW-97 (Mr. Mohammed Hanif Dalubhai Sindhi) examined vide Exhibit 613, PW-104 (Mr. Ahmedmiya Hasumiya Belim) vide Exhibit 630, PW-113 (Mr. Shermohammed Dalumiya Sindhi) examined vide Exhibit 645 and other such witnesses, as appearing to the Trial Court and after arriving at a satisfaction about arraigning the above two persons as accused, by the order dated 10.02.2010 the learned Judge allowed the Application Exhibit 656 in exercise of powers under Section 319 of the Code.
On the facts and circumstances of the case, the following main submissions are made by learned Counsels to challenge the order impugned by the learned Sessions Judge :-
a) That exercise of jurisdiction by the learned Judge under Section 319 of the Code is against any cogent or substantial evidence on record.
b) That powers under Section 319 of the Code is to be exercised sparingly and not in a casual or mechanical manner.
c) That there is no likelihood of conviction of the accused arraigned on the basis of certain statements or prosecution witnesses and even hearsay evidence.
d) That statements in the nature of depositions relied on by the learned Judge have been made after lapse of seven years and such statements suffer from vice of contradictions, inconsistencies and exaggerations and also improvements made over the earlier statements are not trustworthy and ought not to have been relied on by the learned Judge.
e) Even on an earlier occasion, an application for further investigation under Section 173(8) of the Code came to be rejected by the learned Judge and therefore, also exercise of powers under Section 319 of the Code is illegal. The name of the petitioners do not appear even in the chargesheet filed by SIT.
f) That statements of prosecution witnesses are politically motivated and inspite of opportunities available to those witnesses on earlier occasion before Special Investigation Team (SIT) and also before the Court where the trial was pending, no such implication of the petitioners was made and the depositions now is nothing but an afterthought.
h) Lastly it is submitted that the order impugned passed by the learned Judge is devoid of any reason and therefore, also it deserves to be quashed and set aside.
Considering the law laid down by the Apex Court in the decisions relied on in Paragraph 9 of this judgment, the impugned order deserves to be quashed and set aside.
Learned Counsel appearing for the SIT and Special Prosecutor appearing for the State of Gujarat have opposed the prayers in the above petitions to be granted by this Court. Learned Counsel submits that while exercising powers under Section 319 of the Code, learned Judge has considered the decisions of the Apex Court on the question of exercise of powers under Section 319 of the Code and further found that evidence surfaced during the course of trial namely of prosecution witnesses against the accused arraigned was sufficient enough in view of the role played by the accused in commission of the crime which took place on 28.02.2002 in the city of Visnagar. Learned Counsel further submitted that the circumstances prevailing at relevant point of time were so grave and members of a particular community were reeling under an atmosphere of fear and threats to their lives and unable to state the correct facts before the investigating authority and even during the course of trial and investigation by SIT itself. Therefore, duration of seven years as submitted by petitioners is irrelevant and after taking over the investigation by SIT, pursuant to the directions issued by the Apex Court, victims and witnesses of gruesome crimes during unprecedented riots in the city mustered courage to approach the SIT with all care and caution and lurking fear in their minds about the likelihood of consequences which may arise incase if they depose correct facts before the SIT or the Court. However, during course of deposition in the trial when circumstances have improved, prosecution witnesses deposed about involvement of accused in commissioning of crimes and stated certain facts before the Court of law and such evidence appreciated by the learned Judge in correct perspective by arraigning the accused petitioners as an accused in the trial do not deserve any interference by this Court.
Learned Counsel submits that initial failure of the investigating agency in the State cannot be a ground for conferring any benefit upon the accused and more so, when the Trial Court is yet to fully examine the evidence surfaced on the record.
It is also submitted that so far as the law laid down by the Apex Court with regard to exercise of powers under Section 319 of the Code is concerned, proposition of law emerging from the above decisions, needs to be viewed and complied in the backdrop of extraordinary circumstances of the subject matter of the case and situations prevalent at the relevant point of time after gruesome events took place in the aftermath of Godhra riots and issuance of directions by the Supreme Court for constitution of SIT empowering it to investigate all riot concerned incidents afresh in accordance with law and statements made by prosecution witnesses thereafter before SIT with caution and before the Court of law.
Learned Counsel for the complainant, Mr. M.M. Tirmizi submitted that powers under Section 319 of the Code exercised by the learned Judge is in consonance with the law laid down by the Apex Court and submitted that Mr. Yusufkhan Muradkhan Pathan, the eye witness had sent his application to the Chairman as well as the convener of SIT narrating the details of the offences wherein name and role of the accused - Prahladbhai Mohanbhai Gosa was mentioned in Paragraph 6. Even the detailed representation was also sent to Chairman (SIT) on 31.03.2009. In the same manner, witnesses have deposed before the learned Judge about the role played by the accused herein and therefore, appreciation of such offences while exercising powers under Section 319 of the Code do not require any interference by this Court.
In both the above petitions, arguments canvassed and submissions made by learned Counsel appearing for the parties rest on interpretation and applicability of Section 319 of the Code and therefore, law laid down by the Apex Court in this regard is necessary to be taken note of.
Powers under Section 319 of the Code can be invoked in appropriate situations. This section is extracted below :
319.
Power to proceed against other persons appearing to be guilty of offence (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.
(2)Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3)Any person attending the court, although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4)Where the court proceeds against any person under sub-section (1) then -
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.
The above Section empowers the Court concerned to proceed against any person not shown or arraigned as accused if it appears from evidence that such a person has committed an offence for which such person could be tried together with the main accused against whom, enquiry or trial is pending. That one of the main consideration for exercising powers under Section 319 of the Code is to see that no one who appears to be guilty escapes trial with regard to the guilt.
The following decisions have been relied on by learned Counsels appearing for the parties in support of their submissions :-
a) Michael Machado and Anr. V. Central Bureau of Investigation and Anr., (2000) 3 SCC 262.
b) Kailash Dwivedi V. State of M.P. & Anr., (2005) 11 SCC
182.
c) Kailash V. State of Rajasthan & Anr., (2008) 14 SCC 51.
d) Hardeep Singh V. State of Punjab and Ors. With Manjit Pal Singh V. State of Punjab and Anr., AIR 2009 SC 483.
e) Lal Suraj Alias Suraj Singh and another V. State of Jharkhand, (2009) 2 SCC 696.
f) Brindaban Das and Others V. State of West Bengal, (2009) 3 SCC
329.
g) Ram Singh and Other V. Ram Niwas and Another, (2009) 14 SCC
25.
h) Suman V. State of Rajasthan and Another, (2010) 1 SCC 250.
In Michael Machado and Anr. (supra), the Hon'ble Apex Court in Paragraphs 11, 12 and 14 considered the scope and ambit of Section 319 and held as under :-
11. The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the enquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried alongwith the already arraigned accused.
12. But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person . The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the state at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.
14. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses re-examined.
The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the state where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.
In the above case, the Apex Court was considering the arraigning of accused at the penultimate state of trial after examining about 54 witnesses, where the High Court had refused to exercise powers under Section 482 of the Code in a challenge to the order passed by the learned Magistrate under Section 319(1) of the Code. The Apex Court quashed and set aside both the above orders while allowing the Appeal.
In Kailash Dwivedi (supra), the Apex Court relied on two decisions namely Michael Machado and Anr. (supra) and Krishnappa V. State of Karnataka (2004) 7 SCC 792 and reiterated in Paragraph 6 and held as under :-
6.
In the case of Krishnappa v. State of Karnataka2 this Court, considering the appeal on almost similar factual background, held that : (SCC pp. 794-95, paras 6-7 & 9-10) 6[A].
It has been repeatedly held that the power to summon an accused is an extraordinary power conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.
7[B].
In the present case, we need not go into the question whether prima facie the evidence implicates the appellant or not and whether the possibility of his conviction is remote, or his presence and instigation stood established, for in our view the exercise of discretion by the Magistrate, in any event of the matter, did not call for interference by the High Court, having regard to the facts and circumstances of the case.
9[C].
.... for exercise of discretion under Section 319 CrPC, all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.
In Kailash V. State of Rajasthan & Anr. (supra), the Apex Court again considered the decision in Michael Machado and Anr. (supra), Krishnappa V. State of Karnataka (supra) and Mohd Shafi V. Mohd. Rafiq (2007) 14 SCC 544 and quoted paragraphs 7, 19, and 12 and quoted in Paragraph 10 as under :-
10.
In Mohd. Shafi v. Mohd. Rafiq1 to which one of us (Sinha, J.) was a party, this Court has observed in para 7 as under : (SCC p.546) 7 Before, thus a trial court seeks to take recourse to the said provision, the requisite ingredients therefor must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appear to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf.
In the above case this Court referred to this decision in MCD v. Ram Krishnan Rohtagi2 and highlighted the following remarks made in SCC para 19 therein which are to the following effect : (Ram Kishan Rohtagi case2, SCC p.8)
19. ... But, we would hasten to add that this is really extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.
It was further stated in para 12 : (Mohd. Rafiq case1, SCC p. 547)
12. ... it is evident that before a court exercises it discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted.
Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence.
Thus, the Apex Court considered the prima facie satisfaction and a possibility that the accused so summoned in exercise of powers under Section 319 of the Code in all likelihood would be convicted and such satisfaction is to be arrived at on the basis of the evidence on record which may appear to the Court concerned as such.
In Hardeep Singh V. State of Punjab and Ors. (supra), the Apex Court after considering earlier case laws on Section 319 of the Code in Paragraph 79 referred the matter for consideration to a Bench of three Hon'ble Judges by framing two questions as under :-
79.
We, therefore, refer the following two questions for the consideration of a Bench of three Hon'ble Judges :
(1)Whether the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete?(2)
What is the test and what are the guidelines of exercising power under subsection (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?
In Lal Suraj Alias Suraj Singh and another (supra), the Apex Court again considered the decision of Kailash v. State of Rajasthan (supra), Mohd. Shafi v. Mohd. Rafiq (supra) and held that Section 319 of the Code is a special provision and it seeks to meet an extraordinary situation. The above section confers a power of wide amplitude but it is required to be exercised very sparingly and it is incumbent upon the Court concerned to form an opinion on the basis of evidence brought before it that before an order summoning an accused is passed, a case has been made out that such person could be tried together with the other accused and in all probability the accused is likely to be convicted.
In Brindaban Das and Others (supra), again had an occasion to consider all the above cases and also the case of Rajendra Singh v. State of U.P. (2007) 7 SCC 378 where the Apex Court held that there could not be a fetter on the powers of the Court under Section 319 of the Code either by calling it extraordinary or by stating it could be exercised only in exceptional circumstances and ultimately in Paragraphs 25, 26, 27, 28, 29 and 30 held as under :-
25.
The common thread in most matters where the use of discretion is in issue is that in exercise of such discretion such case has to be considered on its own set of facts and circumstances. In matters relating to invocation of powers under Section 319, the court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 CrPC entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.
26. Although a somewhat discordant note was struck in Rajendra Singh case5 the views expressed in the majority of decisions of this Court on the point subscribe to the view that the power under Section 319 CrPC is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice.
27. The fulcrum on which the invocation of Section 319 CrPC rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned.
28. In the instant case, on the quality of the evidence adduced by the prosecution as far as the appellants are concerned, it is difficult to hold with any amount of certainty that the same would in all probability secure a conviction against the appellants. This evidence which seeks to connect the appellants with the commission of the offence is hearsay in nature.
29. Section 319 CrPC contemplates a situation where the evidence adduced by the prosecution not only implicates a person other than the named accused but it is sufficient for the purpose of convicting the person to whom summons is issued. The law in this regard was explained in Ram Kishan Rohtagi case4 and as pointed out by Mr. Ghosh, consistently followed thereafter, except for the note of discord struck in Rajendra Singh case5. It is only logical that there must be substantive evidence against a person in order to summon him for trial, although, he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction.
30. Since in the present case, except for a statement in the FIR that the complainant strongly believed that the murder of her father was preplanned and there were many conspirators involved, there is no direct evidence of the complicity of the appellants in the incident, it would not be proper to subject the appellants to trial by invoking the provisions of Section 319 CrPC.
In the case of Ram Singh and Others (supra), where the Court considered the provision of Section 319 of the Code in light of the above decisions and also interpreted meaning of the word powers in the above Section, which makes it necessary for the Court to arrive at a satisfaction that the evidence adduced on behalf of the prosecution if unrebutted, would lead to conviction of persons sought to be added as accused and that satisfaction of the Court about existence of an extraordinary situation enabling it to exercise the extraordinary jurisdiction under Section 319 of the Code and further that powers under Section 319 must be exercised very sparingly and not as a matter of course.
In Suman V. State of Rajasthan (supra), the Apex Court while considering provisions of Section 319 of the Code and similar provisions which were contained in Section 351(1) of the earlier Code of Criminal Procedure, 1898 and 41st Report of the Law Commission and case laws considered by the Apex Court in Raghubans Dubey V. State of Bihar AIR (1967) SC 1167, Joginder Singh V. State of Punjab (1979) 1 SCC 345, M.C.D. V. Ram Kishan Rohtagi (1983) 1 SCC 1 and Michael Machado and Anr. (supra) and Paragraphs 11 and 12 contained therein found that learned Judicial Magistrate First Class had objectively considered the entire matter and judiciously exercised discretion under Section 319 of the Code and refused to interfere with the order of the High Court upholding the order passed by the learned Magistrate.
Having heard the learned Counsels appearing for the parties, perusal of the records of the case, the impugned order alongwith depositions annexed with the petitions and decisions relied on, sofaras powers under Section 319 of the Code is concerned, the following propositions of law emerge namely :-
a) That for invoking the above section to exercise powers conferred therein, one of the basic requirements is that it should appear to the Court from the evidence collected during the trial or the enquiry that some other person who is not accused in the trial has committed an offence for which he could also be tried alongwith the main accused.
b) The Court must have reasonable satisfaction from the evidence collected regarding two aspects namely that the other person has committed an offence and for such an offence the other person could as well be tried together with the accused on the record of the case.
c) That before the Court exercises its discretionary jurisdiction in terms of Section 319 of the Code, the Court has to arrive at a satisfaction about the existence of a possibility that the accused to be arraigned in all likelihood would be convicted.
d) The above discretion must be judiciously exercised.
e) That the Trial Court has to exercise such discretion with great care and perspicacity.
f) That barring the case of Rajendra Singh v. State of U.P. (supra), in all other cases it is stated that powers under Section 319 is an extraordinary power conferred on the Court and should be used very sparingly and only after compelling reasons exist for taking cognizance against the other person who is not arraigned after the chargesheet is filed by the investigating agency.
g) That the order under this Section is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.
h) That nature of evidence has to be substantive against the person not summoned for trial and what is important for the Court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution if unrebutted, would lead to conviction of persons sought to be added as accused in the case and not mere prima-facie nature of consideration.
i) Even in the case of Hardeep Singh V. State of Punjab and Ors. (supra), before referring to questions for consideration of Bench of three Hon'ble Judges, after referring to Section 319 of the Code, it is observed that for addition of accused, it must appear to the Court from the evidence that any person not being the accused has committed any offences for which such person should be tried alongwith other accused and doubted the proposition that while exercising jurisdiction under Section 319 of the Code, the Court is to be satisfied that in all likelihood, such persons would be convicted.
j) Therefore, in view of the above, for exercising powers under Section 319 of the Code, parameters as above can be complied by the Court depending on the facts and circumstances of each case and on the basis of strength and nature of evidence which may appear to the Court for exercising such powers.
Keeping the above broad features and factors encompassing Section 319 of the Code and referring to the decisions impugned and where the Trial Court has applied the above criterion while arraigning the petitioners as an accused in exercise of powers under Section 319 of the Code, it is relevant to take note of judgment dated 01.05.2009 delivered in Writ Petition (Crl.) No.109 of 2003 by the Hon'ble Supreme Court of India in the case of National Human Rights Commission V. State of Gujarat and Ors. That, C.R. No.60/2002 registered with Visnagar Police Station was part of the above case. The Apex Court considered the important aspects concerning the case of fair trial, modalities to ensure that the witnesses depose freely and in that context the need to protect the witnesses from interference by persons connected with it and able assistance to the Court by competent Public Prosecutors and role of SIT in light of various case laws, provisions of witnesses security/protection,statutes legislated by other countries, reports of the law commission and National Police Commission in this regard and also role of Public Prosecutors in ensuring fair trial, finally in Paragraph 46, the Apex Court issued the following directions :
46.
The following directions are given presently.
Supplementary charge sheets shall be filed in each of these cases as the SIT has found further material and/or has identified other accused against whom charges are now to be brought.
the conduct of the trials has to be resumed on a day-to-day basis keeping in view the fact that the incidents are of January, 2002 and the trials already stand delayed by seven years. The need for early completion of sensitive cases more particularly in cases involving communal disturbances cannot be overstated.
the SIT has suggested that the six Fast Track Courts be designated by the High Court to conduct trial, on day-to-day basis, in the five districts as follows :
i) Ahmedabad (Naroda Patia, Naroda Gam)
ii) Ahmedabad (Gulbarg).
iii) Mehsana (for two cases).
iv) Saabarkantha opened (British National case)
v) Anand
vi) Godhra Train Case (at Sabarmati Jail, Ahmedabad).
It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner. In order to ensure that all concerned have the highest degree of confidence in the system being put in place, it would be advisable if the Chief Justice of the High Court of Gujarat selects the judicial officers to be so nominated. The State of Gujarat has, in its suggestions, stated that it has no objection to constitution of such fast track courts , and has also suggested that this may be left to Hon'ble the Chief Justice of the High Court.
Experienced lawyers familiar with the conduct of criminal trials are to be appointed as Public Prosecutors. In the facts and circumstances of the present case, such public prosecutors shall be appointed in consultation with the Chairman of the SIT. The suggestions of the State Government indicate acceptance of this proposal. It shall be open to the Chairman of SIT to seek change of any Public Prosecutor so appointed if any deficiency in performance is noticed. If it appears that a trial is not proceeding as it should, and the Chairman of the SIT is satisfied that the situation calls for a change of the public prosecutor or the appointment of an additional public prosecutor, to either assist or lead the existing Public Prosecutor, he may make a request to this effect to the Advocate General of the State, who shall take appropriate action in light of the recommendation by the SIT.
If necessary and so considered appropriate SIT may nominate officers of SIT to assist the public prosecutor in the course of the trial. Such officer shall act as the communication link between the SIT and the Public Prosecutor, to ensure that all the help and necessary assistance is made available to such Public Prosecutor.
The Chairman of the SIT shall keep track of the progress of the trials in order to ensure that they are proceeding smoothly and shall submit quarterly reports to this court in regard to the smooth and satisfactory progress of the trials.
The stay on the conduct of the trials are vacated in order to enable the trials to continue. In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary, the SIT can request the Public Prosecutor to seek cancellation of the bails already granted.
For ensuring of a sense of confidence in the minds of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court:
In case of witnesses following steps shall be taken :
Ensuring safe passage for the witnesses to and from the court precincts.
Providing security to the witnesses in their place of residence wherever considered necessary, and Relocation of witnesses to another state wherever such a step is necessary As far as the first and the second is concerned, the SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness.
In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities.
In the third kind of situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witnesses. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to relocate the witnesses.
All the aforesaid directions are to be considered by SIT by looking into the threat perception if any.
The SIT would continue to function and carry out any investigation that are yet to be completed, or any further investigation that may arise in the course of the trials. The SIT would also discharge such functions as have been cast upon them by the present order.
If there are any matters on which directions are considered necessary (including by way of change of public prosecutors or witness protection), the Chairman of the SIT may (either directly or through the Amicus Curiae) move this Court for appropriate directions.
It was apprehension of some learned Counsel that some unruly situations may be created in court to terrorise witnesses. It needs no indication that the Court shall have to deal with such situations sternly and pass necessary orders. The SIT shall also look into this area.
Periodic three monthly reports shall be submitted by the SIT to this Court in sealed covers.
Thus, the above directions have significant bearing on the role of SIT in further investigation of crime. Even if what is recorded in FIR and chargesheets filed subsequent thereto are seen, it appears that it was not a case of ordinary riot, but in the aftermath of Godhra incident, mob in the town of Visnagar had indulged in arsoning and looting houses of a particular community and eleven persons were brutally killed. That issuance of directions by the Apex Court in the above case of National Human Rights Commission (supra), is indicative of the fact that local investigation had failed to bring the culprits on book. The witnesses were scared, petrified and frightened to state anything before the investigating agency or to depose before the Court. Only after constitution of SIT and a Special Court, some of the witnesses including the complainant have mustered courage and started stating certain facts about the incidents in question before the SIT. However, still sense of lurking danger about the consequences of their statements before the investigating agency or deposition before the Court was at the back of their mind and for sometime petrified by their suffering in the past and apprehensive of backlash, even before SIT officers, no statement was made implicating the appellant accused. The above conduct of the complainant and other witnesses cannot be said to be unnatural or can be termed as contradictory to or improvement over earlier statement. On further investigation, the then Investigating Officer, Police Inspector Mr. M.K. Patel was also added as an accused and two different chargesheets were filed and four other persons were added as an accused. However, before the SIT none of the witnesses stated anything about the appellants herein and according to SIT, since no reliable material or evidence was disclosed, they were not arraigned as accused persons. It is not in dispute that the SIT consists of persons of State Police Force and for the purpose of further investigation, they have to take assistance from the local police also. In the above circumstances, failure or unwillingness on the part of witnesses to make a statement before the officer of the SIT cannot be said to be lacuna. When the witnesses mustered courage and found themselves secured after the order passed in the case of National Human Rights Commission (supra), they had deposed before the Special Court presided by the judicial officer appointed by the High Court as per directions of the Apex Court, disclosing the role of the appellant accused in instigating the mob who had indulged in arsoning, looting and murdering people of a particular community. The learned Judge has gone through the deposition of eight witnesses and considering the same in light of the provisions of Section 319 of the Code and has passed a reasoned order. The above peculiar facts and circumstances of this case and deposition of the witnesses during the course of trial can certainly be said to be an evidence and when the learned Trial Judge has exercised a sound judicial discretion, this Court while exercising powers under provisions of Section 482 of the Code is in agreement with the order impugned passed by the learned Judge and the impugned order cannot be said to be in any manner contrary to the law laid down by the Apex Court in the decisions relied on and referred to by the learned Counsels for the parties.
Considering the peculiar facts and circumstances of the case and exercising powers under Section 319 of the Code and directions issued in the case of National Human Rights Commission (supra), this Court finds that nature of evidence appearing to the learned Judge for exercising his sound judicial discretion for invoking powers under Section 319 of the Code cannot be said to be illegal and therefore, no interference is called for in exercise of powers under Section 482 of the Code of the Criminal Procedure, 1973 by this Court.
(Anant S. Dave, J.) At this stage, learned counsel appearing for the petitioner, prays that observations made in order dated 26.02.2010 passed by this Court (Coram : Hon'ble Mr. Justice Akil Kureshi) shall continue as they would like to approach the higher forum against the order passed by this Court today.
Learned counsel appearing for the SIT and State authorities oppose the same on the ground that the Apex Court has directed the Court concerned not to pronounce the final judgment.
However, considering the facts and circumstances of the case, this Court is of the opinion that arrangement worked out in the order dated 26.02.2010 passed by this Court shall continue for a period of four weeks from today.
(Anant S. Dave, J.) Caroline Top