CASE ANALYSIS ON:

ZAHIRA HABIBULLAH SHEIKH &Anr V STATE OF GUJRAT & Ors

(2004)4 SCC 158

Hon'ble Judges/Coram: Dora Swamy Raju and Dr. Arijit Pasayat, JJ.

BACKGROUND

The main aim of criminal justice system is to ensure fair and impartial trial to all the parties
and people involved in the case1. Right to fair trial is embedded in Article 10 and 11 of
universal declaration of human rights and is also enshrined under sec 304 of CRPC. It has
been recognised as a fundamental human right and flows from Article 21 of constitution of
India. Despite this, it has been abused day-in and day-out by the influential people and
moulded as per their own benefit. According to World Justice Report (WJP), 2019 Rule of
index, India has been ranked 68 out 128 countries 2. People abuse their power to threaten
witnesses turning them hostile, tamper with evidences, faulty investigation by corrupted
officers etc, all result in unfair trial.

One such landmark case, where there has been a big shade on the Gujrat state and the entire
system for failing in providing justice to the victim is THE BEST BAKERY CASE. This case
highlights the need of proper laws in the country for protection of witnesses and ensuring fair
trial.

ISSUES TAKEN BY THE COURT

1) How did the entire system fail tremendously in providing a fair trial and administering
justice in the Gujrat Massacre?
2) Is there a need for witness protections laws in India? How effective will it prove to
be?

1
AMANDEEP KAUR- PRINCIPLES OF FAIR TRIAL( May 30, 2019)
https://blog.ipleaders.in/fair-trial-adversary-system-principles-of-fair-trial/
2
Id. At 1
RULES/ORDERS

SEC 406 of CRPC- Transfer of cases and appeals

Sec 391 of CRPC: Appellate Court may take further evidence or direct it to be taken.

Sec 311 OF CRPC: Power to summon material witness or examine person present.

CASE ANALYSIS

1) How did the entire system fail tremendously in providing a fair trial and
administering justice in the Gujrat Massacre?

This landmark case emphasises on supreme court’s decision of retrial due to the brutal
murder of 14 persons in a communal violence on basis of faulty investigations and
prosecution and witness tampering 3. The case was transferred from Gujrat high court to
Bombay high court under sec 406 of CRPC as the SC was critical of failure of the Gujrat govt
in rendering fair trial.

There are various facets to the right of fair trial. The SC in the said case stated that, “the 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.” Our country follows an adversarial trial system.
This suggests that onus of proving the guilt of the accused is on the prosecution and judge
acts as a neutral referee from both the sides.4 So, an independent impartial judge, a fair
prosecutor and an atmosphere of judicial calm are some of the essential principal features of a
fair trial.5

But in the said case, it is observed that the whole justice system had failed in performing their
duties properly.

FAULTY POLICE INVESTIGATI.ON

It was observed that the police investigation was highly dysfunctional without any object of
bringing out the truth and people who were responsible for the crime. There were reports of

3
CASE STUDY OF JUDICIAL ACTIVISM: The Supreme Court Of Best Bakery Case Judgement, 2004.
4
PARUL SONI-Fair Trial and It’s Principals, 13,October,2018.
5
accusations of brutal harassment of Muslims on one of the police officers who was involved
in the investigation.

PUBLIC PROSECUTOR

The SC stated that the public prosecutor acted more as a defence counsel than presenting the
truth before the case, as the prosecutor did not make any efforts to provide protection to
witnesses and dropped one witness alleging him to be of unsound mind without any right
reasons.

COURT APPEARED AS SILENT SPECTATORS

The SC stated that “function of the court is to administer justice and not to count errors and
see who had performed better”

It was observed that the approach by the courts lacked proper or judicious application of
mind by the judges. The trial court failed to acknowledge the hostility of witnesses (36 out of
73 witnesses) and stressed more on the evidence produced before him.

The Gujrat high court too, upheld the acquittal of the accused and failed to perform it’s
discretionary power under sec 391 and 311 od CRPC, to permit additional evidence and also
re-examine witnesses, if needed, to arrive at just decisions and claimed to consider only those
evidences that were already present.

2) IS THERE A NEED FOR WITNESS PROTECTION LAWS IN THE

COUNTRY? HOW EFFECTIVE WILL IT PROVE TO BE?

While defining fair trial the SC observed that, “if the witnesses get threatened or are forced to
give false evidence that also would not result in fair trial”

It emphasises on the need for implementation of witness protection laws in India.

Witnesses play a very crucial part in deciding the outcome of the case. According to
Bentham, witnesses are the “eyes and the ears of the justice”. 6The low conviction rate in
India is also due to lack of stringent laws for witness protection.
6
SHREY VERMA- Witness Protection Scheme In India, DEC 31 2018
As observed in Best Bakery case, that 37 out of 43 witnesses had turned hostile and the key
witness was accused for contempt of court and was punished with 1year imprisonment and
fine of Rs 50,000.

In the said case, the SC had recognized that political patronage and corrupt practices have a
role to play in witnesses turning hostile. It can be observed that two reasons the witnesses
turned hostile was, due to failure of police in doing the investigation efficiently and threats
and pressure from the opposite party.

There have been many references in the past where there was an attack on the witnesses to
acquit the culprit. For instance,

SAINT SHRI ASARAM BAPU V STATE OF GUJRAT, the witness, Chawla, had
sustained 2 bullets and had received death threats, compelling him to change his statement.

JESSICA LAL murder case7, the witness who had filed a FIR against the accused had turned
hostile due to threats by the politicians, the accused.

In BMW case 2002, the key witness was under erroneous pressure to change his statement in
the court by the accused Salman Khan.

The SC had led some guidelines to express the need to have specific legislations and also
directed the state to take necessary steps for providing protection to witnesses.

WITNESS PROTECTION PROGRAMMES IN OTHER COUNTRIES.

Various countries in the world like USA, UK, CANADA, etc have very successful witness
protection legislations.

USA

The US Federal witness Security Programme (WITSEC) was the very first witness protection
programme and has served as model for various other countries. For over 30 years, the US
Marshals Service has been operating the WITSEC program. The main feature of this is
relocation of the witnesses and their immediate families and providing them with new
identities and proper assistance in medical care, residence, employment and security,

7
Bina K Ramani V State, ILR(2010) Supp.(3) Delhi 476.
including pre-trial proceedings and court appearances, until trial gets over.8 The service is
provided on the basis of an analysis of the nature, credibility and the seriousness of the
threat.

CANADA

WITSEC has become a model for many countries, and Canada is one of them. In Canada
there is witness protection programme act (1996) which contains provisions very similar to
that of USA. It includes relocation, accommodation, change of identity, and providing
financial support and security to the witnesses for long time measure. It has an independent
unit to deal with witness protection which is separate from the investigation department. One
important feature of this programme is that when a witness is provided with new identity his
past criminal records will still be maintained as it is with the identity.

U.K

UK Protected Persons Service, a part of National Crime Agency, is responsible for providing
protection to witnesses. It deals with witness anonymity where the personal details are
removed from the documents and is ensured to not be asked of any questions that would
reveal their identity. The Youth Justice and Criminal Evidence Act 1999, also contain certain
provisions relating to witness protection. In this, witnesses on prior permission from the court
can testify on live link and also deals with screening of witnesses where the person is only
revealed to the judge and the voice is moulded to certain extent.

One of the main features is also the concept of open justice where there is transparency of
courts, but also has an exception to this that, the court on its discretion can withhold the name
of witnesses in the trial.

WITNESS PROTECTION SCHEME IN INDIA

The word witness has not been defined anywhere under CRPC. Apart from certain sections in
Indian evidence act, 1872, i.e. sec 151 and 152, that protect witnesses from indecent
questions and investigative procedures, there is no proper legislature or law enacted yet.
Along with best bakery case9there has been many landmark cases like PUCL v. Union of

8
PARAG AGARWAL:A Comparative Analysis Of Witness Protection In India and Other Developed
Countries, FEB2019
9
(2004) 4 SCC 158;
Indi10a, NHRC v State of Gujarat11, Sakshi v. Union of India12, where issue of witness
programme has been raised.

The need for the scheme had also been envisaged in various law commission reports of India.

14th law commission report. (1958)

This was the first report where the issue of witness protection was brought forth. It was in a
very limited sense and only talked about provisions of allowance and seating arrangement for
the convenience of witnesses and had no mention of any physical protection of witnesses in
the report.13

154th law commission report

The recommendation given in this report was “Witnesses should be protected from the wrath
of the accused in any eventuality”, The report suggested to take signature of the witnesses to
prevent them from turning hostile but did not suggest any measures for the physical
protection of witnesses.

178th law commission report (2001)

This report recommended an amendment to insert S. 164 A to CRPC to provide recording of

statements of material witnesses in presence of magistrates on oath where the offences were
punishable with imprisonment of 10 years and more.

198th law commission report. (2006)

This report titled “Witness Identity Protection and Witness Protection Programmes”
increased the scope of its applicability and recommended amendments to strengthen the
programme and extending the scheme to all serious offences and not limiting it only to the
cases of terrorism and sexual offences and also recommending anonymity of witnesses.

The witness protection scheme is the first attempt in India to protect witnesses. In Mahendra
Chawla v union of India the SC had directed the union govt to present a draft witness
protection scheme which got approved in 2018.

10
(2004) 9 SCC 580
11
(2009) 6 SCC 767
12
(2004) 5 SCC 518
13
NAVEENA VARGHESE: Witness Protection: Problem Faced and Need for Protection Programme in India,
Feb14,2015
This scheme contains certain provisions and ideas that are borrowed from similar schemes
across the world. The scheme has been divided into three segments based on the categories of
witnesses. it also deals with protection and change of identity of witnesses if required and has
requisite provisions for funds, procedures for filing for protection and the list of the kind of
protection a witness would be entitled to.

This scheme is considered as a “law” under Article 141 and 142 of the Constitution till
enactment of suitable legislation on the subject.

CONCLUSION AND SUGGESTIONS

In a country like India, where there is corruption prevailing in every corner and department,
the right to fair trial need to be protected. It is an inbuilt right of every citizen and if not dealt
fairly with it, would only lead the public to lose their belief in the system and cause
miscarriage of justice.

One way of doing this is by protecting the interests of witnesses. The proposed witness
protection scheme of India as discussed earlier in the paper, is very efficient and can be
proved to be one of the efficient schemes in the world. But there are certain loophole that
need to be looked into. So, the author has highlighted certain drawbacks of the scheme and
has provided suggestions on it.

 The scheme costs a lot of money and there are various states which would hesitate
spending money on it. So, there should be proper legislation or section to mandate the
government to provide enough funds for the effective working of the scheme and if
not followed had to bear consequences for the same. This will also reduce the
embezzlement of money by the govt officials.
 There should be measures taken to balance between the rights of the accused and
protection of witnesses. Sec 327 of CRPC which highlights the right of the accused to
know the person testifying against him should be balanced with hiding identity of the
witness for his safety.
 Like US Marshall service, there should be a separate department or unit to deal with
the scheme, which excludes the administration, for safety of witnesses and family
members. It also helps in maintaining confidentiality and limits the chance of
corruption by the powerful people.
 The scheme requires a lot of confidentiality and seeing the issue of limited manpower
in the courts and police department, it is highly suggested to recruit and fill the
vacancies in the department. The recruited officials should be properly trained to
ensure that they perform their duties efficiently.
 Speedy trail and justice should be ensured to the parties of the case. In India, the cases
move at the snail speed and continues till several years without any proper verdict.
This causes hinderance in the smooth working of the scheme as it causes a lot of
inconvenience and trouble to the witnesses and also increases the cost of the state for
their protection.
 The witnesses should be respected and treated with dignity in the court and be made
aware of their rights, their role, and the kind of protection provided to them etc. they
should also be updated with the status of investigation.
 There should be proper policies framed for provision of fund to the witnesses. enough
funding and resources should be provided to the state for taking care of the interests
of the witnesses. assistance in residence, proper housing, jobs, medical facilities,
specially to those witnesses who have relocated or changed their identities.
 Tax benefits and concessions should be given to the public who is voluntarily funding
in the scheme. This would encourage public funding and also in smooth and long
working of the scheme.
 Technologies like Video conferencing, voice distortion should be used for the purpose
of giving statements in the court as it will protect the identity of the witnesses and will
enable the witness to testify freely.
 The crucial part of the witness protection scheme is the 3 months renewal time frame
put on the scheme. This would give only temporary protection which wouldn’t be
efficient in the long run. There should be provisions inserted for ensuring full
protection i.e. before, during and after the proceedings until there is no chance of any
kind of threat on the witnesses.
 Beneficiary by the officers- This scheme provides arbitrary powers to the police
officials like categorizing the witnesses according to degree of threat, installing the
security devices, providing protection, camera trials etc. This scheme can’t be
successful if there is corrupted police administration so, the recruitment must be done
carefully and also timely review of the work of officials should be done.
ISHITA AGARWAL

Ist yr LLB