Bombay High Court
Mukta Dabholkar And Anr vs The Central Bureau Of Investigation And ... on 14 June, 2019
Author: G.S.Patel
Bench: S. C. Dharmadhikari, G.S.Patel
(902) WP-3512-15 & ORS.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3512 OF 2015
WITH
CRIMINAL APPLICATION NO. 42 OF 2017
AND
CRIMINAL APPLICATION NO. 152 OF 2017
AND
CRIMINAL APPLICATION NO. 220 OF 2019
Mukta Dabholkar and Anr. } Petitioners
versus
The Central Bureau of }
Investigation and Ors. } Respondents
WITH
WRIT PETITION NO. 1565 OF 2015
WITH
CRIMINAL APPLICATION NO. 43 OF 2017
Smita Pansare and Anr. } Petitioners
versus
The State of Maharashtra } Respondent
WITH
PUBLIC INTEREST LITIGATION NO. 15 OF 2015
Ketan K. Tirodkar } Petitioner
versus
Central Bureau of }
Investigations and Anr. } Respondents
Mr.Abhay Nevagi a/w Mr.Vivek Patil,
Mr.Amit Singh, Mr.Sandesh Shukla and
Mr.Santosh Sawant i/b. M/s.Abhay Nevagi
and Associates for the petitioner in WP
Nos.3512 of 2015 and 1565 of 2015.
Mr.Anil C. Singh-Additional Solicitor
General with Mr.D.P.Singh for respondent
no. 1 (CBI) in WP/3512/2015 and
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CRPIL/15/2015 and for the applicant
(CBI) in APPW/152/2017.
Mr.A.P.Mundargi-Senior Advocate/Special
Public Prosecutor with Ms. M. M.
Deshmukh-APP for respondent (State) in
all matters.
CORAM :- S. C. DHARMADHIKARI &
G.S.PATEL, JJ.
DATE :- JUNE 14, 2019 P.C. :-
1. The report tendered by Mr.Singh, learned Additional Solicitor General, is taken on record. Mr.Singh says that the status report outlines the steps that have been taken after the last hearing.
2. It is stated that now all efforts are taken, including to recover the firearms/weapons used in the crime.
3. In that regard, the report states that steps have been taken and assistance of the Government machinery is expected.
4. It is stated that a co-ordination meeting was held in chambers of none other than the Chief Secretary of the Government of Maharashtra. At that meeting, the Additional Chief Secretary (Home), Principal Secretary (Finance), Principal Secretary (PWD) and Principal Secretary (Home) were present together with the investigating officers in both the crimes.Page 2 of 23
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5. It is stated that after certain clearances, approvals and permissions are obtained, the work will commence. It is stated that the Environmental Board and other Agencies are meeting today itself so as to grant the clearances.
6. Thus, at the ground level, all preparations are made and experts would be involved so as to complete this task expeditiously.
7. During the course of today's hearing, certain queries were raised by both of us; rather we expressed our concern that the investigations must end some day for the trial to commence in both the matters. Firstly, in the Dabholkar murder case, it is stated that all arrests have been effected. Now, it is only the recovery part which is remaining and that operation will also be completed and its report will be placed before this Court.
8. We, therefore, take this status report on record.
9. We expect that the Chief Secretary taking the lead in the matter is adequate to now commence the necessary operations.
He would oversee and supervise the day-to-day activities in that regard.
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10. Since the trial is yet to commence and the necessary reports of investigation would have to be placed before the trial court, we clarify that we express no opinion. We say nothing about the investigations carried out till date. We also do not express any opinion on the merits of the charge nor do we say anything about the innocence or guilt of the accused.
11. Our task is in a way simple, but at the same time difficult.
Since no steps were taken and the investigations were not leading to any logical end or were also not taking a particular direction, this Court was compelled to intervene. An impression was given that with passage of time and because of the inefficiency and lack of co-ordination amongst the investigating agencies, the accused would never be brought to trial. We have ensured that some headway is made. Now, some persons are arrested and they are now put up to trial.
12. It is not possible for us to do anything further and in writ jurisdiction we only ensure free, fair, impartial and expeditious investigation. We cannot say anything about the contents of the charge-sheet proposed to be filed in the trial court. That would be unfair even to the accused or others who have been named as suspects in the crime. Ultimately, in a criminal trial, heavy Page 4 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC burden rests on the prosecution and there is no escape from discharging it. It would have to be discharged.
13. We also caution investigating officers that whenever they are present in the trial court or otherwise exposed to the members of the public, including media, they should not reveal the minute details at this stage. Eventually, the investigating officers are also the prime witnesses. The trial court has to assess and evaluate the evidence on record particularly of the prosecution witnesses. If the investigating officers expose themselves too much at this stage, then, we are worried as to how they would face and withstand a rigorous cross-examination.
This is a murder case. A person as eminent as Dr. Dabholkar was murdered. We, therefore, caution them again from disclosing such details as would prejudice the trial. At every cost, miscarriage of justice has to be avoided.
14. In so far as the Comrade Govind Pansare murder case is concerned, the report is taken on record, but we find that the prosecution in that case is resting only on the revelations made by the accused in two other murder cases. It may be that there is a common thread flowing in the three to four crimes across Maharashtra and Karnataka. However, there are peculiarities of Page 5 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC every murder case. That element cannot be excluded from consideration in the manner suggested in this report. Therefore, the Special Investigation Team (SIT) in the Comrade Govind Pansare murder case would have to make independent efforts to bring all the guilty persons in that crime to book. They cannot only rest on the statements of arrested accused and the witnesses in the two other murder cases.
15. It is stated that the two absconding accused could not be traced despite serious efforts. We do not think that announcing rewards and prizes and taking a police officer or official all over India would result in the apprehension and nabbing of the absconding accused. We only remind the Chief Secretary and Executive that this is not the way in which the crime as serious as the murder of Comrade Govind Pansare ought to be investigated and tried. It is the reputation, image and prestige of the investigating agencies in the State of Maharashtra which is at stake. If the Chief Secretary, Additional Chief Secretary (Home) and the Principal Secretary in that Department, the Director General of Police and senior officials are not concerned about all this, then, we do not know how they will ever impress upon their subordinates the seriousness of a fair and complete investigation.
Page 6 of 23M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC Their investigating skills are put to test in such crime and it is only when every suspect becomes an accused and every accused is tried that the police machinery will come out with flying colours. In the past, the State police machinery has excelled in their investigation skills, even when compared with the investigating agencies abroad. We fail to see that spark and possibly that is missing in the investigation relating to the Comrade Govind Pansare murder case. We are not presuming that the absconding accused would never be traced. We are sure that they will be nabbed some day. However, we must not wait till they surrender or give up. One has to corner them in such a manner that there is absolutely no escape route and they are left with no choice but to surrender to the police. That is surprisingly not happening despite our orders and observations therein. We hope and trust that when persons in power proclaim that they would make every endeavour to win the confidence and trust of every single person be it him or her, high or low and belonging to whichever community, caste and religion, carry them along and extend to them all opportunities to develop and shape their personality, then the investigation and the conduct of the police officials in this case ought to reflect and depict that effort.
Unfortunately, until now, the investigation has not achieved that Page 7 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC standard. Once the political leaders leading this country proclaim that they stand for peace, tolerance and upholding of the constitutional values, then, the response from the police officials ought to be in tune with that proclamation. The police and the Home Ministry officials must realise that their performance alone will give the confidence, not only to their political and executive superiors, but to the general public.
16. We hope and trust that the efforts to nab the absconding accused would now take a proper course. It must chart a course which comes from experience, expertise and a high degree of skill. If necessary, the investigating officials and the police team must be guided by their seniors, maybe even retired police officials. They are still available and the State must explore the possibility of taking their advice and opinion.
17. We post these matters on 4th July, 2019.
18. We only take note of Mr.Nevagi's submissions. He says that we must go through a few pages in the charge-sheet filed by the prosecution in the trial court in Comrade Govind Pansare's case.
He says that what is stated in the status reports filed in the sealed cover in this Court and what is stated in the charge-sheet do not Page 8 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC match and it is worrying the family that there are many loopholes and several aspects remain unprobed and uninvestigated, all of which will assist the defence.
19. We do not think that we should peruse any charge-sheet for everybody must trust the trial court. A trial Judge and particularly, a experienced and trained judicial mind presiding over a Sessions Court is not a mere spectator. He can definitely issue directions if he finds that the investigations have not proceeded in accordance with the settled norms and standards.
He may also bring to the notice of the prosecution the defects and deficiencies, if any, and give opportunity to them to rectify the same. We must, therefore, leave it to the trial Judge before whom the reports of investigation and charge-sheet are filed.
Eventually, the charge-sheet cannot be raised and elevated to such an height as has been projected before us. There is nothing therein which can be said to be binding and conclusive.
Ultimately, the trial Judge will take note of the grievances and the applications of the family members, if filed.
20. If they are already placed in the form of applications and requests in writing, then nothing prevents the family members of both the families from approaching the trial court and requesting Page 9 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC it to take serious note and cognizance of the same. We do not think presently that there is anything intentional or deliberate in the actions of the respondents nor do we think that every police official is fully assisting the accused to escape. We have to trust these machineries for presently there is no substitute for them.
In the circumstances, we leave it to the family members to adopt such course as is permissible in law.
21. Once our task is clear and we do not express any opinion on the merits of the case or the charge-sheet in the trial of Comrade Govind Pansare murder, then, all the more, we decline the request of Mr.Nevagi.
22. Before parting we must invite the attention of all concerned particularly Mr.Nevagi to the following pertinent observations of the Hon'ble Supreme Court in the case of Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors.1 :-
"22 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 nonchalantly. 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 as observed by SALMON 1AIR 2006 SC 1367 Page 10 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC 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".
23 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.
24 In this context, reference may be made to Section 311 of the Code which reads as follows:
"311. Power to summon material witness, or examine person present.
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re- examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of Page 11 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.
25 The object underlying Section 311 of the Code is that there may not be 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 of the 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 Page 12 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all 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 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.
26 As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in Page 13 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC 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 must of course depend on the facts of each case, and has to be determined by the Presiding Judge.
27 The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross- examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross- examination to the complainant. These aspects were highlighted in Jagat Rai v. State of Maharashtra, (AIR 1968 SC 178).
28 Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application 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 Page 14 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC not losing sight of the public interest involved in the prosecution of persons who commit offences.
29 In 1846, in a judgment which Lord Chancellor Selborne would later 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, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much."
The Vice-Chancellor went on to refer to paying "too great a price .... for truth". This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: "The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards."
Page 15 of 23M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC 30 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 law method of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process :
"It is the merit of the common law that it decides the case first and determines the principles afterwards ..... It is only after a series of determination on the same subject- matter, that it becomes necessary to "reconcile the cases", as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it any every step."
31 The principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impart and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
Page 16 of 23M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC 32 As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the law of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane, J. put it:
"It is desirable that the requirement of fairness be separately identified since it transcends the context of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law."
33 This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice -- often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Page 17 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
34 The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage 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 one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much Page 18 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
35 A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.
36 Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be Page 19 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC vitiated and violated by an overhasty stage-managed, tailored and partisan trial.
37 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.
38 "Witnesses," as Bentham said, "are the eyes and ears of justice." Hence, the importance and primary of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account 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 out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may Page 20 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery. Doubts are raised about the roles of investigating agencies. Consequences of defective investigation have been elaborated in Dhanraj Singh @ Shera and Ors. v. State of Punjab (JT 2004 (3) SC 380). It was observed as follows:
"5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (Karnel Singh v. State of M.P. ((1995) 5 SCC 518).
6. In Paras Yadav and Ors. v. State of Bihar ((1999) 2 SCC 126) it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the Page 21 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
7. As was observed in Ram Bihari Yadav v,.
State of Bihar and Ors. ((1998) 4 SCC 517) if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view was again re-iterated in Amar Singh v,. Balwinder Singh and Ors. ((2003) 2 SCC
518)".
39 The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation. We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments Page 22 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 ::: (902) WP-3512-15 & ORS.DOC like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the "TADA Act") have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies."
23. These principles have not being deviated or departed from;
rather they have been reiterated in subsequent judgments. In fact, one can safely see that these principles have stood the test of time. They are followed even today.
24. We cannot add anything to this and if one refuses to abide by these statutory principles, he/she must realise that justice will be a casualty.
(G.S.PATEL, J.) (S.C.DHARMADHIKARI, J.) Page 23 of 23 M.M.SALGAONKAR ::: Uploaded on - 18/06/2019 ::: Downloaded on - 21/07/2019 10:38:28 :::