This article has been written by Ms. Kamini, a 3rd Year LL.B Student From,               Campus Law Centre, Delhi University

Decided on: 12 April, 2004

INTRODUCTION

This case is commonly known as “Best Bakery Case”, it dealt with the issue of witness protection in sensitive cases such as communal riots. This case was related to the Godhra riots in 2002, where the witnesses had turned hostile due to intimidation and fear, and the accused were acquitted due to lack of evidence. However, the Supreme Court ordered a retrial in the case based on the new evidence and witness protection measures.

This case highlighted the importance of witness protection and brought attention to the need for a comprehensive witness protection law in India. 

FACTS OF THE CASE

• On 02.03.2002, “Best Bakery” at Vadodar was burnt down by an unruly mob, resulting in the death of 14 persons, which was believed to be a retaliatory action for the killing of 56 persons in the Sabarmati Express.

• That the appellant claims that she was the main eye-witness of macabre killings, who lost family members in the incident, along with other witnesses.

• That during the trial she retracted their statements and accused were acquitted due to faulty investigation and perfunctory trial, later she appeared before the National Human Rights Commission stating that she was threatened by powerful politicians not to depose against the accused. 

• National Human Rights Commission (NHRC) proceeded to Supreme Court seeking for the special lave petition for the retrial outside the Gujarat territory.

• That this appeal is against the judgment of the Gujarat High Court for upholding the acquittal of respondents (accused) by the trial court.

CONTENTIONS

Learned Counsel Mr. Sibal appearing from the appellant said:

• • That High Court did not consider the Appellant’s stand and state’s contentions
  • That the state had requested of additional evidence under section 391 of the Cr.P.C, related to affidavits filed by injured witnesses who were forced not to tell the truth in the trial court due to circumstances and atmosphere.
  • The High Court accepted the accused person’s argument that only the record of the case brought before it can be considered for appeal under section 386 and 385(2) of the Code, and rejected the use of affidavits as an indirect method to bring in additional evidence.

• That the High Court did not consider the true scope and need for resorting to section 391 and section 311 of the code, and neglected the obligation of the courts to ensure truth and substantial justice for victims.

• That the retrial with additional evidence should be directed, and tht the trial could be held outside the state with evidence recorded through video conferencing to avoid a hostile atmosphere.

Mr. Rohtagi Additional Solicitor General appearing on behalf of the state:

• That the application is filed in terms of U/S 311 and 391 of the Cr.P.C to bring the affidavits on records admit additional evidence, and re-trial. They also opposed the prayer for re-hearing by another high court or trial outside the state.
• That the High Court had no proper reason to refuse to take on record the affidavits filed by alleged eye-witnesses, which were relevant and could have been examined for their acceptability as evidence. The State had submitted a request for the acceptance of additional evidence, as it believed that the First Information Report (FIR) filed based on Zahira’s statement was genuine. However, the High Court ruled that there was no evidence to support the claim that the FIR had been tampered with. The High Court’s conclusions were contradictory and perverse.

Learned counsel Mr. Sushil Kumar and Mr. Tulsi appearing on behalf of the accused and said: 

• That the application under section 391 was in fact admitted and rejected on merits, and the investigation was not perfunctory.
• That the state’s appeal for fresh trial based on changing grounds and was contrary to the evidence on record.
• That the submission made by Zahira in her appeal was irrelevant and out of context, according to state.

• • That the court must come to a conclusion that existing material is insufficient before exercising power under section 391 of the code to admit additional evidence.
  • That the high court has concluded that the trial was fair and satisfactory after examining every relevant aspect and the necessity for additional evidence has to be determined in the context of arriving at a just decision.

• The principles of discovering, vindication, and establishment of truth are the main purpose of courts of justice, and a fair trial involves a delicate judicial balancing of competing interests, including those of the accused, the public, and he victim.

OBSEVATION

• • That the courts in criminal cases have a duty to consider the interests of the accused, the victim, and the society as a whole, as crime are public wrongs that affect the community
  • The concept of fair trial involves maintaining public confidence in the administration of justice and upholding the “majesty of law”, means balancing the interests of the accused, the victim, and the society, with the community acting through the state and prosecuting agencies. Courts cannot ignore vexatious or oppressive conduct in proceedings, even if a fair trial is still possible, as it may undermine the reputation of judge as impartial and independent adjudicators.
  • That the Fair trial requires an impartial judge, a fair prosecutor, and an atmosphere of judicial calm. Bias, prejudice, threats to witnesses, or forced false evidence all result in denial of a fair trial.
  • That the Section 311 of the Cr.P.C and section 165 of the Evidence Act give wide powers to Presiding Officers to actively elicit necessary materials during evidence collection. The Courts have a duty to monitor proceedings to ensure that irrelevant or unnecessary evidence is not brought into record, even if the prosecutor is remiss.
  • That section 391 empowers the appellate court to effectively decide an appeal, it is an exception to the ordinary rule laid down in section 386 for disposal of an appeal. Through this appellate court can call for further evidence before disposing of the appeal, also there is no restriction on the nature of evidence or its purpose. The primary object of this section is to prevent guilty individuals from escaping through careless or ignorant proceedings, and to vindicate innocent persons wrongfully accused, because Justice is not only for the accused but also for the community represent by the state and public prosecutor.
  • The Section 391 of the code cannot be a dead letter in the statute book and if the evidence on record is tainted, tailored, or does not reveal the real truth, it would be futile to consider whether the evidence on record is sufficient before admitting additional evidence.

• That the court disagree with the high court’s conclusion that additional evidence should not be permitted based on routine affidavit of witness threats, and emphasizes the need to carefully consider the need for and desirability of accepting additional evidence. The court conclude that in this case, re-trial is necessary to preserve the justice delivery system and prevent recurrence of similar issues. The decision on whether to adjudicate with additional evidence or direct a fresh trial is normally for the appellate court, but in this case, re-trial is deemed necessary.

JUDGMENT

Thus, the Hon’ble Court held that case should be transfer to Maharashtra and retrial shall be done under the jurisdiction of Bombay High Court. That the witnesses in sensitive cases require special protection as they may face threats and intimidation, and that the state has a duty to provide such protection. The court also directed the state to provide compensation to the witnesses who suffer due to inadequate protection provided by the state.

Further, they direct the state government to appoint another public prosecutor. The Director General of police, Gujarat is directed to monitor re-investigation and it should be conducted with urgency and utmost sincerity, as per the circumstances. The investigating agency is directed to act in accordance with section 173(8) of the code, which allows for further investigation.

REFERENCE

https://indiankanoon.org/doc/1067991