Zahira Habibulla H. Sheikh v. State of Gujarat (2004)

Zahira Habibulla H. Sheikh v. State of Gujarat (2004) Case Summary

Facts 

It was stated that as a part of retaliatory action to avenge the killing of 56 persons in the Sabarmati Express, an unruly mob burnt down the business named 'Best Bakery' at Vadodara, Gujrat. Zahira was the main eyewitness who lost her family members. She made her statement during the investigation based on which the Chargesheet was filed but she resiled from her statement during the trial.

Case History

1. The Trial Court acquitted the accused. 
2. She approached the National Human Rights Commission [NHRC] stating that she was turned hostile during the trial because she was threatened by the powerful politicians to not speak against the accused person. Therefore, an SLP under Article 32 was filed by NHRC before the Supreme Court Court.
3. Also, the State, though not up to the mark and with due care, and the appellant filed an appeal before the High Court and one Sahera Banu filed a revision petition before the High Court against the order of the Trial Court. Also, the State filed an application to submit additional evidence and to examine certain witnesses, as per S.311 of the CrPC before the High Court.
4. The High Court while upholding the order of the Trial Court dismissed the appeal and revision petition and also the application filed by the State under S.311 of the Code.
5. Hence this appeal was raised against the order of the Gujarat High Court.

In the High Court, Zahira and the State had requested for a fresh trial on the following grounds: 

1. A large no. of witnesses even the star witness had made contradictory statements in the trial court from the statement made during the investigation.
2. The Public Prosecutor did not even ask for holding the trial on camera, despite the fact that many witnesses had turned hostile.
3. The Trial Court did not exercise the power given under Section 311 of the CRPC to re-examine and recall the witness and Section 165 of the Indian Evidence Act, 1872 to put any question as per discretion after looking at the circumstances of the present case. 

Main Issue 

1. Whether the Gujrat High Court was right in upholding the order of the Trial Court.

Reasoning

1. The investigation was perfunctory and not impartial.
2. The Public Prosecutor acted more as a defence counsel.
3. The Court remained a silent spectator.
4. The State also failed in its approach to assail the Trial Court's judgement.
5. The conclusion arrived by the High Court that the investigation was dishonest and faulty was and shall be a ground to direct a re-trial.

Decision 

1. The Honourable Court has directed a re-trial of the case in the Bombay High Court on a day-to-day basis.
2. The Court also directed the Gujrat Government for the protection of witnesses.
3. As the Public Prosecutor was not fulfilling his duties and obligations therefore the Court ordered to appointment of another public prosecutor at the expense of Gujrat not of Maharashtra.
4. Appeal Allowed. 

Observations

1. Fair trial
1. Discovery, vindication and the establishment of truth are the main purposes of the existence of Courts of Justice, but it shall not be achieved by unfair means.
2. There is no exhaustive definition of fair trial but it can be achieved by taking into mind its objective to prevent miscarriage of justice. 
3. A fair trial means a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. A fair trial eliminates bias or prejudice for or against the accused or the witnesses or the cause. Therefore, if the witness gets threatened to give false evidence will not be a fair trial.
4. Maneka Gandhi & Anr. v. Rani Jethmalani (1979) emphasised the necessity to ensure a fair trial by observing that the central criteria to be considered by a court while exercising its power under S. 406 i.e., to transfer a case is to ensure a fair trial which is the first imperative of the dispensation of justice.
5. Fair trial involves the amalgamation of the interests of the accused, the victims and the society. The community act through the State and prosecuting agencies. Denial of a fair trial to the accused is as much injustice as to the victims and the society.
6. A fair hearing is a part of due process of law which gets violated by an overhasty, stage-managed, tailored and partisan trial.
7. Witnesses are the "eyes and ears of justice" and therefore they must be protected by the State. 
8. The Presiding Judge must take an active participation in the trial to find the truth and administer justice with fairness and impartiality. They shall not be a mere spectator or a recording machine.
2. Legislative measures to ensure fair trial through active participation of the Court in a trial-
1. Section 311 of the CRPC, 1973, empowers any Court to summon any person as a witness or to examine or recall or re-examine any person if the Court feels that the said person is essential to decide the case. 
2. Section 165 of the Evidence Act of 1872 is a complimentary power to the Court which empowers the Court to ask any question as per discretion to discover relevant facts.
3. Section 391 of the code (CRPC) empowers the appellate Court to record additional evidence as necessary by itself or direct to the magistrate or if the appellate court is a High Court by Court of Session or the Magistrate.