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The case is commonly to be known as "the Best Bakery Case". Among the most gruesome massacres of the Gujarat riots, the Best Bakery case has often come to symbolise the brutality of the carnage during the post-Godhara riots, in which 1,200 people were killed. The trial took many exasperating twists before justice was finally delivered by a Mumbai court. The case basically deals with the contempt of court. Contempt of court has no statutory definition, even the definition given in the contempt of courts act, 1971 is not a definition, but only the classification or categories of contempt of courts. According to this, the contempt may be civil or criminal contempt. As my case deals with criminal contempt which is defined in section 2(c): “Criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever whichi. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or ii. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; The definition of criminal contempt is wide enough to include any act of a person which would tend to interfere with the administration of justice or which would lower the authority of the court. The scope of the criminal contempt has been made wide so as to empower the court to preserve the majesty of law which is indispensable condition of the rule of law.
Facts of the Case
The facts of the case giving rise to the filing of the present appeals are that:
Between 8.30 p.m. of 1-3-2002 and 11.00 a.m. of 2.3.2002, a business concern known as ""Best Bakery"" at Vadodara was burnt down by an unruly mob of large number of people. In the ghastly incident 14 persons died. The attacks were stated to be a part of retaliatory action to avenge killing of 56 persons burnt to death in the Sabarmati Express. Zahira was the main eye-witness who lost family members including helpless women and innocent children in the gruesome incident. Many persons other than Zahira were also eye-witnesses.
A day after the bakery was burnt down by a mob, the owner‟s 18-year-old daughter Zaheera Sheikh lodged a police complaint against 21 accused. Describes how the mob came towards the house shouting „kill the Muslims, burn the bakery‟.
In a dramatic turnaround, Zaheera turned hostile. Zahira, her mother Sehrunissa and her brothers Nafitullah and Nabiullah retracted their statements in court. Zahira said that she was on the terrace while the incident took place and couldn‟t identify the accused.
Delivering his 24-page judgment, Mahida said, "It was proved beyond doubt that a violent mob had attacked the bakery and killed 12 persons. However, there was no legally acceptable evidence to prove that any of the accused presented before the court had committed the crime." Nobody from the complainants' side was present in the court premises when the judgment was pronounced.
All of the 21 accused were acquitted on June 27, 2003 by a "fast-track court" presided over by Judge Abhay Thipse. Other witnesses had suffered head injuries and were not in a mental state to give an accurate witness account. The state government pointed to the lapses by the police in "registering and recording of FIR" and on the part of the prosecution in "recording of evidence".
Zahira along with her mother told The Sunday Express that she lied in court because she feared for her life. Zahira said that Bhartiya Janta Party (BJP) MLA Madhu Srivastava and his cousin, Congress councillor Chandrakant Srivastava were behind
the threats and she sought re-trail outside Gujarat. Zahira gave a statement on oath before a full bench of the NHRC (national Human Rights Commission) in the presence of Teesta Setalvad, Secretary, CJP (Citizen‟s for Justice and Peace) about how she was forced to retract her statements in court. She named those who had threatened her and her family to pressure her to retract her statement. The NHRC filed a Special Leave Petition in the Supreme Court. Asked for a retrial in a court outside Gujarat. In a sworn affidavit to the SC, Zaheera said she had turned hostile because when she reached the court complex, she met Chandrakant Batthoo, Madhu Srivastava‟s brother, who threatened her. He told her that if she stuck to her earlier statement, the remaining four members of her family would be killed. Supreme Court Division bench judgment comprising of Justice Doraiswamy Raju & Justice Arijit Pasayat ordered retrial of Best Bakery case outside Gujarat, in Maharashtra. While transferring the case to Mumbai, the Supreme Court by its Order dated 12th April, 2004, directed: "The State of Gujarat shall also ensure that the witnesses are produced before the concerned court, whenever they are required to attend them, so that they can depose freely without any apprehension of threat or coercion from any person. In case any witness asks for protection, the State of Maharashtra shall also provide such protection as deemed necessary, in addition to the protection to be provided for by the State of Gujarat." October 4, 2004: The re-trial begins before the Bombay High Court. November 3, 2004: In an affidavit to the High Court, “If we don’t lie as instructed by Teesta, then these people will get me and my family members killed,” Zahira said with regard to Teesta Setalvad. She said that after the fast track court had acquitted the 21 accused, two Muslims had barged into her house and told her that she would have to change her statement in the interest of the community and thereafter she along with brother were taken to Mumbai to Teesta Setalvad and it was she who had made her sign legal papers and the matter was taken to Supreme Court against her wishes. A petition was filed before the Supreme Court alleging that Zahira's statement was nothing but contempt of the Supreme Court.
The Supreme Court appointed Committee indicted Zahira Sheikh, key witness in the Best Bakery case, as a “liar”. The Committee, headed by the Supreme Court Registrar General said in its report, “She has developed an image of self-condemned liar whose statements alone cannot safely be accepted.”
An inquiry was set up to find out truth. Finding by Inquiry Officer that money has exchanged hands which made said witness to state in particular way in trial court. The said witness could not explain her assets sources of bank deposits.
The reports by the inquiry officer were accepted and Zahira Shiekh was held liable for Contempt of Court.
Issues involved in the Case
This case has its matrix in an appeal filed by Zahira Habibullah hereinafter referred to as 'Zahira and another namely, Teesta Setelwad' and another appeal filed by the State of Gujarat. In the appeals filed before this Court, the basic focus was that: There was absence of an atmosphere conducive to fair trial. Zahira who was projected as the star witness made a grievance that she was intimidated, threatened and coerced to depart from the truth and to make statement in Court which did not reflect the reality. But later on, she used to change her statements from time to time. So, the question before the Apex Court was whether this would amount to the contempt of the court? Moreover, the Supreme Court also made a significant reference to the importance of “witness protection”. Since the star witness of the case turned hostile due to lures and monetary considerations at the instance of those in power, a significant question arose that is there any legally just and fair solution so as to protect a witness from those who do not want the truth to come out?
Objections raised by the Appellant
Zahira had objected to acceptance of the Inquiry Officer's report. The grounds on which the objections had been raised essentially as follows: 1. The Inquiry Officer had tailored facts to fit into his pre-conceived conclusions. There had been deliberate omissions and distortion of facts. 2. No cross examination of the witnesses whom the Inquiry Officer had examined was permitted. 3. There was no transparent procedure adopted and the agreed procedure was never followed. 4. There was lack of fair objective and reasonable approach. The pre-requisites of an objective enquiry were missing. There was no intelligent appreciation of facts. 5. The Inquiry Officer appeared to be guided by Teesta Setalwad. The conclusion that she had approached the Supreme Court for a fresh trial is wrong. 6. The request for examining the Chairman, NHRC was not accepted without indicating any reason. 7. She was not only the person who had made departure from her stand purportedly recorded during investigation, there were others but no effort was made to take any action against them. Though many persons had died or injured, Citizen for Justice and Peace and its functionaries never bothered to take up their cases. It is surprising why they only chose her. 8. The petition filed before the Supreme Court was not in fact signed by her but was signed by Teesta and the mere fact that she had filed a Vakalatnama would not make her responsible for the statements made in the affidavit. 9. Upto the point of time of the Press Conference she was under the control of Teesta and she was a mere puppet in her hands and whatever statement was purportedly made by her was in fact made by Teesta. Teesta's role in the whole episode is very suspicious. She had spent lot of money taking advantage of the helplessness of her and had used her for her machination. She was tutored to make statements on different occasions. Teesta has given different versions as to when she has come in contact with her and decided to take up her issues.
Judgment of the Supreme Court
After considering the above-mentioned facts of the case as well as the objections made by the appellant, Justice Arijit Pasayat pronounced the judgment. The judgment has been discussed as follows: The Supreme Court answered the objections raised by the appellant in the following ways: i. Objection 1 & 3 - On a bare perusal of the proceedings of the enquiry, it is clear that the procedure adopted was quite transparent. The proceedings were conducted in the presence of learned Counsel for the parties and/or the parties themselves. ii. Objection 2 - Records revealed that, inquiry officer always asked for suggestions and whenever any question was suggested that was asked. If a party did not suggest any question to be put to a witness by the Inquiry Officer, it is not open for him or her to say that opportunity for "cross examination" was not given. iii. Objection 5 - At the outset, it has to be noted that we have not gone into the question as to whether Teesta has done anything wrong in the process. It was for Zahira to explain whether she was either telling the truth or making false statement. Merely stating that she was acting as a puppet in the hands of Teesta is not sufficient. iv. Objection 6 - The statement of Zahira was recorded by NHRC in the presence of the Chairman (a retired Chief Justice of this Court) and several members which included a retired Judge of this Court. The contention that the statement was not properly recorded and she was asked to put the signatures, this issue should be totally rejected. As this plea totally reflects the credibility of functionaries of a body like NHRC. v. Objection 4 & 7 - The other pleas also do not affect the acceptance or deny of the report. The report drawn had its own material foundation. vi. Objection 8 - The stand that mere filing of a vakalatnama without an affidavit by the concerned person cannot constitute a statement by the person who has filed the vakalatnama is clearly unacceptable. The appeal undisputedly has been filed by Zahira and it has been candidly admitted that she has filed the
vakalatnama for filing the appeal. She cannot now turn around and say that she was not a party in the appeal. vii. Objection 9 - Mrs. Teesta has been admitted that report deserves to be accepted.Further enquiry regarding the role of state officials and the sources from where Zahira made money may be further proved. The Inquiry Officer has clearly indicated the roles played by Madhu Srivastava and his cousin Chandrakant in intimidating/coercing witnesses like Zahira and family members. The role of the State of Gujarat in lodging Zahira and her family members at Silver Oak Club, Gandhi Nagar for a period of 10 days raises big question mark as to who met the expenses. This shows that many sinister roles have been played by the functionaries of the state. Altogether, it shows Teesta just being targeted under the sins of state officials. So the Court rejected all the objections filed by the appellant. Above being the position, there was no reason to discard the report given by the Inquiry Officer which is accordingly accepted. The gist of the Inquiry Officer‟s report is as given as below: i. The Inquiry Officer had categorically recorded that Zahira had changed her stands at different stages and had departed from statements made before the Supreme Court. ii. So far as the question whether she was threatened, coerced, lured, induced and/or in any manner pressurized to make statements in a particular way by any person or persons, it had been found that Zahira had not been able to explain the assets in her possession in spite of several opportunities having been granted. iii. The Inquiry Officer had referred to transcript of conversations purported to had been made between a representative of "Tehlaka" and Shri Tushar Vyas, Shri Nisar Bapu and Shri Chandrakant Ramcharan Srivastava @ Bhattoo Srivastava, Shri Madhu Srivastava, and Shri Shailesh Patel. The transcript of the Video Compact Disc produced by Tehlaka.com clearly indicated that money was paid to Zahira to change her stand. iv. The Inquiry Officer has referred to the explanations offered by Zahira and her family members and found that she could not explain various receipts of money received by her and deposits made in their bank accounts. The
amount involved was nearly rupees five lakhs. The explanation offered by Zahira and her family members was found unacceptable. v. The Inquiry Officer recorded that money has exchanged hands and that was the main inducement responsible which made Ms. Zahira to state in a particular way in Trial Court. After accepting the report what remained to be done was what would be the consequence of Zahira having made such conflicting statements and the effect for changing her stand from the statements made at different stages, particularly in the Supreme Court. Serious questions arise as to the role played by witnesses who changed their versions more frequently than chameleons. Zahira's role in the whole case was an eye-opener for all concerned with the administration of criminal justice. As highlighted at the threshold the criminal justice system is likely to be affected if persons like Zahira are to be left unpunished. The Inquiry Officer has found that Zahira could not explain her assets and the explanations given by her in respect of the sources of bank deposits etc. had been found to be unacceptable. The Court found no reason to take a different view. Zahira had committed contempt of the Supreme Court. i. Zahira was sentenced to undergo simple imprisonment for one year and to pay cost of Rs. 50,000/- and in case of default of payment within two months, she would suffer further imprisonment of one year; ii. Her assets including bank deposits would remain attached for a period of three months. iii. The Income Tax Authorities were directed to initiate proceedings requiring her to explain the sources of acquisition of various assets and the expenses met by her during the period from 1.1.2002 till the date of judgment. iv. It would be open to Income tax authorities to direct continuance of the attachment in accordance with law. If so advised, the Income Tax Authorities would also require Madhu Srivastava and Bhattoo Srivastava to explain as to why the claim as made in the VCD of paying money shall not be further enquired into and if any tangible material comes to surface, appropriate action under the Income Tax Law shall be taken notwithstanding the findings recorded by the Inquiry Officer that there is
no acceptable material to show that they had paid money, as claimed, to Zahira. v. The Trial Court would decide the matter before it without being influenced by any finding/observation made by the Inquiry Officer or by the fact that the Supreme Court had accepted the report and directed consequential action.
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Law governing the Issue in the Case
Section 15 of the Contempt of Court Act, 1991: Section 15. “Cognizance of criminal contempt in other cases – 1. In the case of a criminal contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by, a) The Advocate- General, or b) Any other person, with the consent in writing of the Advocate General, c) In relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer. 2. In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate- General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. 3. Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. Explanation. - In this section, the expression" Advocate- General" means,a) In relation to the Supreme Court, the Attorney- General or the Solicitor- General; b) In relation to the High Court, the Advocate- General of the State or any of the States for which the High Court has been established; c) In relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.” Article 129 of the Constitution of India, 1949: Article 129. Supreme Court to be a court of record The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
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Article 142(2) of the Constitution of India, 1949: Article 142(2). Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. Union List, Entry 77: Entry 77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court) and the fees taken therein persons entitled to practice before the Supreme Court.
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Law before the Case
Law as regard to the quantum of punishment for the contempt of the Supreme Court:
The Supreme Court being court of record has inherent power to punish the contempt of itself. This power has been given by the Constitution and therefore it cannot be materially interfered or taken away by the law made by the Legislature. Article 129 of the Constitution provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. As regard to the nature and quantum of punishment for the contempt of the Supreme Court, there is no law as such. In the case of Sukhdev Singh Sodhi v. Chief Justice and Judges of the PEPSU High Court,1it was held that as regard to the extent of “maximum punishment” which can be imposed upon a contemnor must, therefore, be construed as dealing with the powers of the High Courts only and not of the Supreme Court in that behalf. In Supreme Court Bar Association v. Union of India2, it was stated that the nature and quantum of punishment in Section 12 of the Contempt of Court Act, 1971 is binding on the High Court. As regard the Supreme Court the question has been left open to be decided in other suitable cases. Law as regard to the safety of witnesses or “witness protection”:
There is no law for the protection of witness in India barring few provisions of Indian Evidence Act, 1872. Ss. 151 and 152 protects the witnesses from being asked indecent, scandalous, offensive questions, and questions which intend to annoy or insult them.. Apart from these provisions, there is no provision for the protection of witnesses in India. This fact was acknowledged by Supreme Court in the case of NHRC vs. State of Gujarat where it said that „no law has yet been enacted, not even a scheme has been framed by the Union of India or by the state government for giving protection to the witnesses‟. However, Sec. 16 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA) and Sec. 30 of the Prevention of Terrorism Act, 2002 (POTA) were the initial steps taken in the direction of witness protection. The special courts constituted under the respective
1953 SC 22. AIR 1998 SC 1875.
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enactments were authorized to avoid mentioning the names and addresses of the witnesses in the orders/ judgments. Further, they were authorized to issue directions for keeping the identity and address of the witnesses undisclosed. Any contravention of those provisions is made punishable under the respective enactments. However, in reality, it was found that those provisions were not adequate for rendering actual protection to the witnesses in sensitive cases.
Law established in the Case
Law as regard to the quantum of punishment for the contempt of the Supreme Court:
In this case the Supreme Court has not established a law as such regarding the nature and extent of punishment for the contempt of itself. The Court only recalled that Parliament by virtue of Entry 77 List I is competent to enact a law relating to the powers of the Supreme Court with regard to contempt of itself and such a law may prescribe the nature of punishment which may be imposed on a contemnor by virtue of the provisions of Article 129 read with Article 142(2) of the Constitution of India, 1950. The Court has further observed that since no such law has been enacted by Parliament, the nature of punishment prescribed under the Contempt of Courts Act, 1971 may act as a guide for the Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme Court, except that Section 15 of the Act prescribes procedural mode for taking cognizance of criminal contempt by the Supreme Court also. Section 15, however, is not a substantive provision conferring contempt jurisdiction. Law as regard to the safety of witnesses or “witness protection”:
In this case, the Supreme Court highlighted the importance of “witness protection” so as the witness could safely depose truth without any fear of being haunted by those against whom he had deposed. The Court came down heavily on the State administration in general and the investigating agency in particular for rashly and negligently handling their duties and abdicating their responsibilities. The categorical finding is that the whole machinery of a State failed in maintaining the confidence of public in the justice delivery system. Apex Court in strong words reminded the trial Courts to be alive to the reality about the witness hostility. One of
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the predominant points taken note of by the Hon‟ble Supreme Court is the lack of witness protection in our country. The Court stated that legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day.
Significance of the Case
Bentham said that “witnesses are the eyes and ears of justice”. 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. The role of a witness is very important in a trial. He is an indispensable part of the justice delivery system of any country. His each and every statement is very important as it has a magic force to change the course of the whole case. So this judgment has pointed out as to how the protection of witnesses is inadequate and has signified the need for a witness protection program.
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Apart from awarding punishment to the appellant Zahira Habibulla Sheikh for perjury and also for the contempt of the Supreme Court, this judgment has come out to be consequential one. The reason being that through this judgment the Apex Court has been able in pointing out two very significant issues. Firstly, the Court reminded the Parliament to enact a law so as to prescribe a procedure to determine the extent and nature of punishment for contempt of the Supreme Court. Without having any proper law, more often the Supreme Court imposes harsh punishment upon the contemnor as happened in this case. Secondly the Court emphasized the need for a law prohibiting tampering with witnesses and that it becomes the need of the hour. The criminal justice system has become inefficient and does not function in a fluent fashion. The most overwhelming reason of this weakness is the prosecution witnesses retract from statements made earlier before the police and turn hostile. Time has become ripe to act on account of numerous experiences faced by the 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. 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. Therefore, there is an urgent need to bring forth a bill of right to preserve and protect victims'/witnesses' rights, justice and due process. Such a bill should include the following: To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.
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Protection is also necessary to restore a sense of human dignity which stands shattered in a situation like Gujarat carnage.
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Books referred: 1. Rai, Dr. Kailash, Legal Ethics, Central Law Publications, Allahabad, 10th Edition, 2011.
Websites accessed: 1. http://en.wikipedia.org/wiki/Best_Bakery_case (accessed on 25-03-2012). 2. http://www.indiatogether.org/combatlaw/vol4/issue1/witness.htm (accessed on 25-032012). 3. http://jurisonline.in/2010/05/witness-protection-law-vis-a-vis-hostile-witness-2 (accessed on 26-032012). 4. http://kja.nic.in/article/witnessProtection.pdf (accessed on 25-03-2012). 5. http://legalservicesindia.com/article/article/best-bakery-case-law-of-evidence-5441.html (accessed on 25-03-2012). 6. www.manupatra.com (accessed on 24-03-2012). 7. http://savedaughters19.wordpress.com/2010/06/25/need-for-a-witness-protection-lawin-india-the-solution-to-the-problem-of-hostile-witness (accessed on 26-03-2012). 8. http://www.scribd.com/dharmanext/d/73349980-The-Truth-behind-Best-Bakery-casehow-Teesta-Setalvad-tutored-witnesses (accessed on 25-03-20120. 9. http://www.tehelka.com/story_main10.asp?filename=ts010105best_bakery_case.asp (accessed on 25-03-2012).
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