HARI RAM v. STATE OF RAJASTHAN & ANR. [2009] INSC 892 (5 May 2009)

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 907_OF 2009 (Arising out of S.L.P.(Crl.)No.3336 of 2006)

Hari Ram ... Appellant

Versus

State of Rajasthan & Anr. ... Respondents

Judgement

ALTAMAS KABIR, J.
1. Leave granted.
2. This appeal raises certain questions which are fundamental to the understanding and implementation of the objects for which the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the `Juvenile Justice Act, 2000') was enacted. The said law which was enacted to deal with offences committed by juveniles, in a manner which was meant to be different from the law 2 applicable to adults, is yet to be fully appreciated by those who have been entrusted with the responsibility of enforcing the same, possibly on account of their inability to adapt to a system which, while having the trappings of the general criminal law, is, however, different therefrom.
The very scheme of the aforesaid Act is rehabilitatory in nature and not adversarial which the courts are generally used to. The implementation of the said law, therefore, requires a complete change in the mind-set of those who are vested with the authority of enforcing the same, without which it will be almost impossible to achieve the objects of the Juvenile Justice Act, 2000.
3. The appellant, Hari Ram, was arrested along with several others on 30.11.1998, for the alleged commission of offences under Sections 148, 302, 149, Section 325 read with Section 149 and Section 323/149 Indian Penal Code. After the case was 3 committed for trial, the Additional Sessions Judge, Didwana, by his order dated 3rd April, 2000, in Sessions Case No.54 of 1999 determined the age of the accused to be below 16 years on the date of commission of the offence and after declaring him to be a juvenile, directed that he be tried by the Juvenile Justice Board, Ajmer, Rajasthan.
4. This appeal has been filed against the common order dated 7th December, 2005, passed by the Jodhpur Bench of the Rajasthan High Court in Crl. Revision Petition No.165 of 2000, filed by the Respondent No.2 herein and in Crl. Revision Petition No.199 of 2005 filed by the appellant, also being aggrieved by the said common order.
While Crl. Revision No.199 filed by the appellant herein challenging the framing of charges was dismissed, Crl. Revision No.165 filed by the State of Rajasthan was allowed holding that the appellant was not a juvenile 4 and the provisions of the Juvenile Justice Act, 2000, were not, therefore, applicable to him.
5. According to the appellant's father, the appellant's date of birth is Kartik Sudi 1, Samvat Year 2039, which is equivalent to 17th October, 1982, whereas the offence was alleged to have been committed on 30th October, 1998, which mathematically indicates that at the time of commission of the offence, the appellant had completed 16 years and 13 days and was, therefore, excluded from the scope and operation of the Juvenile Justice Act, 2000.
Furthermore, the medical examination conducted in respect of the appellant by a Medical Board indicated that his age at the relevant time was between 16 and 17 years. After considering the various decisions of this Court indicating the manner in which the age of a juvenile is to be determined, the High Court observed that the inescapable conclusion which could be arrived 5 at is that on the date of the incident, the accused-appellant herein was above 16 years of age and was, therefore, not governed by the provisions of the Juvenile Justice Act, 1986 (hereinafter referred to as the `1986 Act').
6. It is the said order of the High Court which has been impugned in this appeal.
7. Appearing for the appellant, Mr. Sushil Kumar Jain, learned Advocate, submitted that the High Court had acted in a highly technical manner in holding that the appellant was not a juvenile and had in the process defeated the very object of the Juvenile Justice Act, 2000, which is aimed at rehabilitating juvenile offenders in order to bring them back to main-stream society and to give them an opportunity to rehabilitate themselves as useful citizens of the future.
In fact, the definition of "juvenile" in the 1986 Act was altered in the Juvenile Justice 6 Act, 2000, to include persons who had not completed 18 years of age. In other words, the age until which a male child in conflict with law would be treated as a juvenile was raised from 16 years to 18 years.
8. Mr. Jain submitted that the learned Single Judge of the High Court appears to have misconstrued the decisions cited before him in the case of Santenu Mitra vs. State of West Bengal, [(1998) 5 SCC 697] and Umesh Chandra vs. State of Rajasthan [(1982) 2 SCC 202], wherein the admissibility of certain records, including school records maintained by private institutions, under Section 35 of the Indian Evidence Act, 1872 was under consideration. On the other hand, Mr. Jain referred to an earlier decision of this Court in the case of Mohd.
Ikram Hussain vs. State of U.P. & Ors. [1964 (5) SCR 86], where certain copies from the school registers were looked into and it was 7 held that the same amounted to evidence under the Indian Evidence Act as the entries in the school registers were made long before the same were used by way of evidence. This Court observed that the said entries were reliable as they had been made ante litem motam. Mr. Jain also referred to certain observations made in Umesh Chandra's case (supra) while interpreting Section 35 of the Indian Evidence Act to the effect that there is no legal requirement that a public or other official book should be kept only by a public officer and all that is required is that it should be regularly kept in discharge of official duties.
9. In support of his submissions, Mr. Jain lastly referred to the decision of this Court in the case of Rajinder Chandra vs. State of Chhattisgarh & Anr. [(2002) 2 SCC 287], wherein in paragraph 5 this Court observed as follows :
8 "5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only.
In Arnit Das v. State of Bihar [(2005) 5 SCC 488] this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court squarely applies to the facts of the present case."
10. Mr. Jain emphasised that this was also a similar case in which the record, according to the date of birth indicated by his father and another witness - Narain Ram, shows that he was just 13 days older than the cut-off limit of 16 years provided in Section 2(h) of the 1986 Act.
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11. Mr. Jain submitted that since the incident is alleged to have taken place as far back as on 30th October, 1998 and more than 10 years have elapsed since then and the definition of "juvenile" had since been amended to include children who had not yet attained the age of 18 years, the High Court should not have taken such a hypertechnical view and should not have interfered with the order of the Additional Sessions Judge, Didwana, declaring the appellant to be a juvenile.
12. On behalf of the respondents it was submitted that even on the basis of the age as disclosed by the appellant's father, the appellant was over 16 years of age on the date of commission of the offence and could not, therefore, be treated to be a juvenile as defined in the 1986 Act. It was submitted that the documents, which were produced in support of the appellant's claim to be a minor, show him to 10 have crossed the age of 16 years on the date of commission of the offence and the High Court had merely corrected the error of the Additional Sessions Judge, Didwana, in calculation of the appellant's age. According to the respondents, the order of the High Court impugned in the present appeal did not call for any interference and the appeal was liable to be dismissed.
13. As indicated in the very beginning of this judgment, the Juvenile Justice Act, 2000, was enacted to deal with offences allegedly committed by juveniles on a different footing from adults, with the object of rehabilitating them. The need to treat children differently from adults in relation to commission of offences had been under the consideration of the Central Government ever since India achieved independence. With such object in mind, Parliament enacted the Juvenile Justice 11 Act, 1986, in order to achieve the constitutional goals contemplated in Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution imposing on the State a responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected. Subsequently, in keeping with certain international Conventions and in particular the Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985, commonly known as the Beijing Rules, the Legislature enacted the Juvenile Justice (Care and Protection of Children) Act, 2000 to attain the following objects :
(i) to lay down the basic principles for administering justice to a juvenile or the child;
(ii) to make the juvenile system meant for a juvenile or the child more appreciative of the developmental needs in comparison 12 to criminal justice system as applicable to adults;
(iii) to bring the juvenile law in conformity with the United Convention on the Rights of the Child;
(iv) to prescribe a uniform age of eighteen years for both boys and girls;
(v) to ensure speedy disposal of cases by the authorities envisaged under this Bill regarding juvenile or the child within a time limit of four months;
(vi) to spell out the role of the State as a facilitator rather than doer by involving voluntary organizations and local bodies in the implementation of the proposed legislation;
(vii) to create special juvenile police units with a humane approach through sensitization and training of police personnel;
(viii) to enable increased accessibility to a juvenile or the child by establishing Juvenile Justice Boards and Child Welfare Committees and Homes in each district or group of districts;
(ix) to minimize the stigma and in keeping with the developmental needs of the juvenile or the child, to separate the Bill into two parts - one for juveniles in conflict with law and the other for the juvenile or the child in need of care and protection;
13 (x) to provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship and aftercare of abandoned, destitute, neglected and delinquent juvenile and child."
The said Act ultimately came into force on 1st April, 2001.
14. Section 2(k) of the said Act defines a juvenile or child as a person who has not completed eighteenth years of age. A broad distinction has, however, been made between juveniles in general and juveniles who are alleged to have committed offences. Section 2(l) defines "a juvenile in conflict with law" as a juvenile who is alleged to have committed an offence.
Determination of age, therefore, assumes great importance in matters brought before the Juvenile Justice Boards. In fact, Chapter II of the Juvenile Justice Act, 2000, deals exclusively with juveniles in conflict with law 14 and provides a complete Code in regard to juveniles who are alleged to have committed offences which are otherwise punishable under the general law of crimes.
15. Section 4 of the Juvenile Justice Act, 2000, provides for constitution of Juvenile Justice Boards for every district in a State to exercise and discharge the duties conferred or imposed on such Boards in relation to juveniles in conflict with law.
16. Section 18 of the Act prohibits joint proceedings and trial of a juvenile and a person who is not a juvenile and the punishment that can be awarded to a juvenile is enumerated in Section 15.
17. Since the application of the Juvenile Justice Act, 2000, to a person brought before the Juvenile Justice Board (hereinafter referred to as `the Board') depends on whether such person 15 is a juvenile or not within the meaning of Section 2(k) thereof, the determination of age assumes special importance and the said responsibility has been cast on the said Board.
Subsequently, after the decision of a Constitution Bench of this Court in the case of Pratap Singh vs. State of Jharkhand & Another [(2005) 3 SCC 551], the legislature amended the provisions of the Act by the Amendment Act, 2006, by substituting Section 2(l) to define a "juvenile in conflict with law" as a "juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence"
(emphasis supplied) and to include Section 7-A which reads as follows:- "7A. Procedure to be followed when claim of juvenility is raised before any court.- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary 16 (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect."
(Emphasis supplied)
18. Section 7-A makes provision for a claim of juvenility to be raised before any Court at any stage, even after final disposal of a case and sets out the procedure which the Court is required to adopt, when such claim of juvenility is raised.
It provides for an inquiry, taking of evidence as may be necessary (but not affidavit) so as to determine the age of a person and to record a 17 finding whether the person in question is a juvenile or not. The aforesaid provisions were, however, confined to Courts, and proved inadequate as far as the Boards were concerned. Subsequently, in the Juvenile Justice (Care and Protection of Children) Rules, 2007, which is a comprehensive guide as to how the provisions of the Juvenile Justice Act, 2000, are to be implemented, Rule 12 was introduced providing the procedure to be followed by the Courts, the Boards and the Child Welfare Committees for the purpose of determination of age in every case concerning a child or juvenile or a juvenile in conflict with law. Since the aforesaid provisions are interconnected and lay down the procedures for determination of age, the said Rule is reproduced hereinbelow:
"12. Procedure to be followed in determination of Age.- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile 18 or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining - (a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare 19 the age of the juvenile or child.
In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) if the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia in terms of section 7A, section 64 20 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
Sub-Rules (4) and (5) of Rule 12 are of special significance in that they provide that once the age of a juvenile or child in conflict with law is found to be less than 18 years on the date of offence on the basis of any proof specified in sub- rule (3) the Court or the Board or as the case may be the Child Welfare Committee appointed under Chapter IV of the Act, has to pass a written order stating the age of the juvenile or stating the status of the juvenile, and no further inquiry is to be conducted by the Court or Board after examining and obtaining any other documentary proof 21 referred to in Sub-rule (3) of Rule 12. Rule 12, therefore, indicates the procedure to be followed to give effect to the provisions of Section 7A when a claim of juvenility is raised.
19. One of the problems which has frequently arisen after the enactment of the Juvenile Justice Act, 2000, is with regard to the application of the definition of "juvenile" under Section 2(k) and (l) in respect of offences alleged to have been committed prior to 1st April, 2001 when the Juvenile Justice Act, 2000 came into force, since under the 1986 Act, the upper age limit for male children to be considered as juveniles was 16 years. The question which has been frequently raised is, whether a male person who was above 16 years on the date of commission of the offence prior to 1st April, 2001, would be entitled to be considered as a juvenile for the said offence if he had not completed the age of 18 years on the said date. In other words, could a person who was not a juvenile 22 within the meaning of the 1986 Act when the offence was committed, but had not completed 18 years, be governed by the provisions of the Juvenile Justice Act, 2000, and be declared as a juvenile in relation to the offence alleged to have been committed by him?
20. The said question, which is identical to the question raised in these proceedings, was considered in the case of Arnit Das vs. State of Bihar [(2000) 5 SCC 488], wherein, in the light of the definition of "juvenile" under the 1986 Act, which was then subsisting, this Court came to a finding that the procedures prescribed by the 1986 Act were to be adopted only when the Competent Authority found the person brought before it or appearing before it to be under 16 years of age, if a boy, and under 18 years of age, if a girl, on the date of being so brought or such appearance first before the Competent Authority. This Court also came to a finding that the date of commission of 23 offence is irrelevant for finding out whether the person is a juvenile within the meaning of Clause (h) of Section 2 of the 1986 Act. In the said decision, this Court sought to distinguish the earlier decisions in the case of Santenu Mitra's case (supra), Bhola Bhagat vs. State of Bihar [(1997) 8 SCC 720] and Krishna Bhagwan vs. State of Bihar [AIR 1989 Pat. 217], which was a Full Bench decision. It also over-ruled the decision of the Calcutta High Court in Dilip Saha vs. State of W.B.
[AIR 1978 Cal. 529], where the Calcutta High Court, while interpreting the provisions of the West Bengal Children's Act, 1959, which is a pari materia enactment, took the view that the age of the accused at the time of commission of the offence is the relevant age for attracting the provisions of the said Act and not his age at the time of trial.
21. The question which fell for decision in Arnit Das's case (supra), once again fell for the 24 consideration of this Court in the case of Pratap Singh's case (supra), where the decision of this Court in Umesh Chandra's case (supra), which expressed a view which was contrary to that expressed in Arnit Das's case (supra), was brought to the notice of the Court, which referred the matter to the Constitution Bench to settle the divergence of views. In fact, the Constitution Bench formulated two points for decision, namely, (a) Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the Court/competent Authority? (b) Whether the Act of 2000 will be applicable in a case where a proceeding is initiated under the 1986 Act and was pending when the Act of 2000 was enforced with effect from 1.4.2001?
22. While considering the first question, the Constitution Bench had occasion to consider the 25 decision of the three Judge Bench in Umesh Chandra's case (supra), wherein it was held that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child, is concerned, is the date of occurrence and not the date of trial. Consequently, the decision in Arnit Das's case (supra) was over-ruled and the view taken in Umesh Chandra's case (supra) was declared to be the correct law. On the second point, after considering the provisions of Sections 3 and 20 of the Juvenile Justice Act, 2000, along with the definition of "juvenile" in Section 2(k) of the Juvenile Justice Act, 2000, as contrasted with the definition of a male juvenile in Section 2(h) of the 1986 Act, the majority view was that the 2000 Act would be applicable to a proceeding in any Court/Authority initiated under the 1986 Act which is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001. In other words, a male offender, who 26 was being proceeded with in any Court/Authority initiated under the 1986 Act and had not completed the age of 18 years on 1.4.2001, would be governed by the provisions of Juvenile Justice Act, 2000.
23. In his concurring judgment, S.B. Sinha, J., while considering the provisions of Section 20 of the Juvenile Justice Act, 2000, observed that for the purpose of attracting Section 20 it had to be established that (i) on the date of coming into force the proceedings in which the petitioner was accused was pending; and (ii) on that day he was below the age of 18 years. The unanimous view of the Constitution Bench was that the provisions of the Juvenile Justice Act, 2000, have prospective effect and not retrospective effect, except to cover cases where though the male offender was above 16 years of age at the time of commission of the offence, he was below 18 years of age as on 1.4.2001. Consequently, the said Act would cover earlier cases only where a person had not completed 27 the age of 18 years on the date of its commencement and not otherwise.
24. The said decision in Pratap Singh's case (supra) led to the substitution of Section 2(l) and the introduction of Section 7A of the Act and the subsequent introduction of Rule 12 in the Juvenile Justice Rules, 2007, and the amendment of Section 20 of the Act.
25. Read with Sections 2(k), 2(l), 7A and Rule 12, Section 20 of the Juvenile Justice Act, 2000, as amended in 2006, is probably the Section most relevant in setting at rest the question raised in this appeal, as it deals with cases which were pending on 1st April, 2001, when the Juvenile Justice Act, 2000, came into force. The same is, accordingly, reproduced hereinbelow :
"20. Special provision in respect of pending cases.-Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act 28 comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.
[Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.]"
26. The Proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with regard to 29 the applicability of the Juvenile Justice Act, 2000, to cases pending on 1st April, 2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of Clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1st April, 2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction, to set 30 aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000.
27. At this point it may be noted that the decision of the Constitution Bench in Pratap Singh's case (supra) was rendered at a point of time when the amendments to Sections 2(l) and 20 and the introduction of Section 7-A had not yet been effected, nor was Rule 12 of the 2007 Rules available. Several decisions on the applicability of the 2000 Act to children who were above 16 but below 18 years on the date of commission of the offence have been rendered after the Juvenile Justice Act, 2000, came into force and several others were rendered after the amendments were introduced in the said Act by Amendment Act 33 of 2006 and the introduction of the 2007 Rules. The decisions rendered by this Court and the High Courts prior to 1st April, 2001, when the Juvenile 31 Justice Act, 2000, came into force and thereafter can, therefore, be divided into two groups. The decision in Pratap Singh's case (supra) and in the case of Munney @ Rahat Jan Khan vs. State of U.P.
[(2006) 12 SCC 697] fall into the first category, whereas the decisions in Jameel vs. State of Maharashtra [(2007) 11 SCC 420], Vimal Chadha vs.
Vikas Chaudhary [(2008) 8 SCALE 608], Babloo Pasi vs. State of Jharkhand [(2008) 13 SCALE 137] and Ranjit Singh vs. State of Haryana [(2008) 9 SCC 453] fall into the second category. Although, the Constitution Bench decision in Pratap Singh's case (supra) and Munney's case (supra) are not really relevant since they have been rendered prior to 22nd August, 2006, when the Amending Act 33 of 2006 came into force, they assume a modicum of significance since they have been referred to and relied upon even after the Amending Act and the 2007 Rules came into force on 22.8.2006 and 26.10.2007, respectively.
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28. Of the decisions rendered after the amendments effected in 2006 to the Juvenile Justice Act, 2000, the first decision of note is that of Jameel's case (supra) rendered on 16.1.2007 wherein the amendments to the Act effected by the Amendment Act 33 of 2006, which came into effect on 22.8.2006, were not even noticed. The next decision rendered on 27.5.2008 is in the case of Vimal Chadha's case (supra), wherein, although, the amendment of the Act and the introduction of the Juvenile Justice Rules, 2007, were brought to the notice of the Court, the same were not considered and the decision was rendered in the light of the decision rendered in Pratap Singh's case (supra) and other cases decided prior to 1.4.2001.
29. The next decision rendered on the same point on 11.9.2008 was the decision in Ranjit Singh's case (supra) wherein also the amendments to Section 2(l) and 20 and the introduction of Section 7-A in 33 the Juvenile Justice Act, 2000, and the introduction of the 2007 Rules had not been considered and the decision passed sub silentio.
30. Similar was the situation in Babloo Pasi's case (supra) decided on 3.10.2008 which basically dealt with Section 49 of the Juvenile Justice Act, 2000 and Rule 22 of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003, which is pari materia with Rule 12 of the 2007 Rules.
While deciding the said case, the Hon'ble Judges did not also have occasion to consider the amendments effected to the Juvenile Justice Act, 2000, by the Amendment Act 33 of 2006 which had just come into force on 22.8.2006.
31. None of the aforesaid decisions are of much assistance in deciding the question with regard to the applicability of the definition of "Juvenile"
in Section 2(k) and 2(l) of the Juvenile Justice Act, 2000, as amended in 2006, whereby the 34 provisions of the said Act were extended to cover juveniles who had not completed 18 years of age on or before the coming into force of the Juvenile Justice Act, 2000 on 1.4.2001 (Emphasis supplied).
The effect of the proviso to Section 7-A introduced by the Amending Act makes it clear that the claim of juvenility may be raised before any Court which shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in the Act and the Rules made thereunder which includes the definition of "Juvenile" in Section 2(k) and 2(l) of the Act even if the Juvenile had ceased to be so on or before(emphasis supplied) the date of commencement of the Act. The said intention of the legislature was reinforced by the amendment effected by the said Amending Act to Section 20 by introduction of the Proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any Court the 35 determination of juvenility of such a juvenile has to be in terms of clause 2(l) even if the juvenile ceases to be so "on or before the date of commencement of this Act" (emphasis supplied) and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed.
32. Apart from the aforesaid provisions of the 2000 Act, as amended, and the Juvenile Justice Rules, 2007, Rule 98 thereof has to be read in tandem with Section 20 of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006, which provides that even in disposed of cases of juveniles in conflict with law, the State Government or the Board could, either suo motu or on an application made for the purpose, review the case of a juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for the immediate release of the juvenile whose period 36 of detention had exceeded the maximum period provided in Section 15 of the Act, i.e., 3 years.
33. In addition to the above, Section 49 of the Juvenile Justice Act, 2000 is also of relevance and is reproduced hereinbelow :
"49. Presumption and determination of age.-(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person."
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34. Sub-Section (1) of Section 49 vests the Competent Authority with power to make due inquiry as to the age of a person brought before it and for the said purpose to take such evidence as may be necessary (but not an affidavit) and shall record a finding as to whether the person is a juvenile or a child or not, stating his age as nearly as may be.
Sub-Section (2) is of equal importance as it provides that no order of a Competent Authority would be deemed to have become invalid merely on account of any subsequent proof that the person, in respect of whom an order is made, is not a juvenile or a child, and the age recorded by the Competent Authority to be the age of the person brought before it, would, for the purpose of the Act, be deemed to be the true age of a child or a juvenile in conflict with law. Sub-Rule (3) of Rule 12 indicates that the age determination inquiry by the Court or Board, by seeking evidence, is to be derived from :
38 (i) the matriculation or equivalent certificates, if available, and in the absence of the same;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;
35. Sub-Clause (b) of Rule 12(3) provides that only in the absence of any such document, would a medical opinion be sought for from a duly constituted Medical Board, which would declare the age of the juvenile or the child. In case exact assessment of the age cannot be done, the Court or the Board or as the case may be, the Child Welfare Committee, for reasons to be recorded by it, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on the lower side within a margin of one year.
36. As will, therefore, be clear from the provisions of the Juvenile Justice Act, 2000, as 39 amended by the Amendment Act, 2006 and the Juvenile Justice Rules, 2007, the scheme of the Act is to give children, who have, for some reason or the other, gone astray, to realise their mistakes, rehabilitate themselves and rebuild their lives and become useful citizens of society, instead of degenerating into hardened criminals.
37. Of the two main questions decided in Pratap Singh's case (supra), one point is now well established that the juvenility of a person in conflict with law has to be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate. The effect of the other part of the decision was, however, neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, whereunder the provisions of the Act were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of the offence. The law as now crystallized on a 40 conjoint reading of Sections 2(k), 2(l), 7A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1st April, 2001, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted.
38. The instant case is covered by the amended provisions of Sections 2(k), 2(l), 7A and 20 of the Juvenile Justice Act, 2000. However, inasmuch as, the appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence, the High Court was of the view that the provisions of the Juvenile Justice Act, 1986, would not apply to the appellant's case. Of course, the High Court, while deciding the matter, did not have the benefit of either the amendment of the Act or the introduction of the Juvenile Justice Rules, 41 2007. Even otherwise, the matter was covered by the decision of this Court in the case of Rajinder Chandra's case (supra), wherein this Court, inter alia, held that when a claim of juvenility is raised and on the evidence available two views are possible, the Court should lean in favour of holding the offender to be a juvenile in borderline cases. In any event, the statutory provisions have been altered since then and we are now required to consider the question of the claim of the appellant that his date of birth was Kartik Sudi 1, Samvat Year 2039, though no basis has been provided for the fixation of the said date itself in the light of the amended provisions. Often, parents of children, who come from rural backgrounds, are not aware of the actual date of birth of a child, but relate the same to some event which may have taken place simultaneously. In such a situation, the Board and the Courts will have to take recourse to the procedure laid down in Rule 12, but such an 42 exercise is not required to be undertaken in the present case since even according to the determination of the appellant's age by the High Court the appellant was below eighteen years of age when the offence was alleged to have been committed.
39. Having regard to the views expressed hereinabove, we are unable to sustain the impugned order of the High Court in holding that the provisions of the Juvenile Justice Act, 1986, would not be applicable to the appellant's case since he was allegedly 13 days above the age prescribed.
40. In the instant case, the appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years. It is with the enactment of the Juvenile Justice Act, 2000, that in Section 43 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of age which was given prospective prospect. However, as indicated hereinbefore after the decision in Pratap Singh's case (supra), Section 2(l) was amended to define a juvenile in conflict with law to mean a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence;
Section 7A was introduced in the 2000 Act and Section 20 thereof was amended whereas Rule 12 was included in the Juvenile Justice Rules, 2007, which gave retrospective effect to the provisions of the Juvenile Justice Act, 2000. Section 7A of the Juvenile Justice Act, 2000, made provision for the claim of juvenility to be raised before any Court at any stage, as has been done in this case, and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed thereunder, even if the juvenile had 44 ceased to be so on or before the date of commencement of the Act. Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act.
41. The said position was re-emphasised by virtue of the amendments introduced in Section 20 of the 2000 Act, whereby the Proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of clause (l) of Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed.
45
42. In the instant case, there is no controversy that the appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force. In view of Sections 2(k), 2(l) and 7A read with Section 20 of the said Act, the provisions thereof would apply to the appellant's case and on the date of the alleged incident it has to be held that he was a juvenile.
43. The appeal has, therefore, to be allowed on the ground that notwithstanding the definition of "juvenile" under the Juvenile Justice Act, 1986, the appellant is covered by the definition of "juvenile" in Section 2(k) and the definition of "juvenile in conflict with law" in Section 2(l) of the Juvenile Justice Act, 2000, as amended.
44. We, therefore, allow the appeal and set aside the order passed by the High Court and in keeping 46 with the provisions of Sections 2(k), 2(l),7A and 20 of the Juvenile Justice Act, 2000 and Rules 12 and 98 of the Juvenile Justice Rules, 2007, hold that since the appellant was below 18 years of age at the time of commission of the offence and also when the Juvenile Justice Act, 2000, came into force, the provisions of the said Act would apply in his case in full force.
45. The matter is accordingly remitted to the Juvenile Justice Board, Ajmer, for disposal in accordance with law, within three months from the date of receipt of a copy of this order, having regard to the fact that the offence is alleged to have been committed more than ten years ago. If, however, the appellant has been in detention for a period which is more than the maximum period for which a juvenile may be confined to a Special Home, the Board shall release the appellant from custody forthwith.
47 ________________J.
(ALTAMAS KABIR) ________________J.

NATIONAL INSURANCE CO.LTD. v. J.MAHESHWARAMMA [2009] INSC 1002 (8 May 2009)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009 (@ SPECIAL LEAVE PETITION (CIVIL) NO. 19995 OF 2007)

National Insurance Company Limited ...Appellant(s)

Versus

J. Maheshwaramma ...Respondent(s)



GANGULY, J.
1. Leave granted.
2. This appeal has been filed impugning the judgment and order dated 3.9.2007 passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as `the National Commission').
1
3. The said National Commission in exercise of its revisional jurisdiction refused to interfere with the concurrent findings of both the District Forum and the State Commission.
4. The facts which were alleged in the complaint filed before the District Forum, Mehboob Nagar, are as follows:
5. The husband of the complainant late Beesana, obtained policy bearing No.6200001644/2005 from the National Insurance Company Limited for Rs.1,00,000/-. The policy covers the risk of accidental death of insured. The legal heir of the insured will get Rs.1,00,000/- under the policy. The policy holder died on 24.11.2005 in a road accident while he was proceeding on his motorcycle bearing No. AP 22-J278 from Gadwal to Veerapoor. On the way in the limits of PJP Colony, where the tractor bearing No. AP 22 C 3422 which was coming from 2 the opposite side, came at a high speed in a rash and negligent manner and hit the motor cycle of Beesanna and Beesanna sustained fatal injuries. The doctors advised to shift him to Kurnool hospital. While on the way to Kurnool hospital, Beesanna succumbed to the injuries.
6. Thereafter, the complainant submitted Claim Form of the appellant herein along with all other relevant documents.
7. The main contention raised by the appellant before the District Forum was that the deceased had no valid licence at the time of accident. The fact that late Beesanna obtained the policy to cover a risk to the third parties, own damages and personal accident is not disputed by the appellant. It is also not in dispute that at the time of accident, the insurance policy was valid.
3
8. It is not in dispute that as per the terms of the policy, the nominee will get Rs.1,00,000/- if the policy holder dies in a motor accident .
9. The stand of the appellant is that the driving licence of the deceased which was sent for verification is found to be fabricated. Their further stand is that the policy holder had got driving licence to drive Tractor Trailer (Transport) but had no licence to drive motorcycle with gear.
10. Before the District Forum, the stand of the appellant was that Exhibit B-1, the licence of the deceased purports to be a fabricated one created in favour of the deceased for the purpose of wrongful gain.
11. The District Forum observed that they are unable to appreciate the said stand because of the reason that the contents of Exhibit B-2 4 have not been challenged before it by the insurer by way of affidavit of the authority which issued the certificate.
12. The District Forum came to a finding that the burden wholly lies on insurance company to establish the defence raised by it in such a proceeding and also to establish the breach on the part of the insured.
13. In support of its contention the District Forum has quoted the judgment passed by the National Commission in National Insurance Co.
297; wherein it has been clearly laid down that the breach of policy condition has to be proved by the insurance company and it is very clear that the burden of proof is on them.
14. In National Insurance Co. Ltd. (supra) it has been held that the burden is on the insurer to prove that the insured is guilty for willful 5 breach of conditions of insurance policy or the contract of insurance. (See para 92, page 337).
15. In coming to the said conclusion the learned Judges relied on the decision in the case and Ors. - (2003) 3 SCC 338 and held if a person has been given a licence for driving a particular type of vehicle, it cannot be said that he has no driving licence.
In this case it is an admitted fact that the victim had licence to drive a tractor with trailer, but the allegation of the appellant is that victim's licence to drive the motorcycle with gear is fabricated. In any event it cannot be said that the victim had no driving licence. In such a case, it has to be found on the basis of evidence laid before the fact finding body whether the driver licenced to drive one type of vehicle but driving 6 another type of vehicle was the main or the contributory cause of the accident.
16. If such a case is not made out, the insurance company cannot avoid its liability merely on the basis of technical breach of licencing conditions. [See para 89, page 336 of the report in National Insurance (supra)].
17. In view of the aforesaid legal position, the District Forum held that the insurance company before it failed to establish valid grounds on which they can repudiate the claim. As such the repudiation of the claim by the insurance company was held arbitrary and unreasonable.
18. On this finding the District Forum held that the complainant-wife of the deceased is entitled for the sum assured of Rs.1,00,000/- together with interest thereon @ 9% per annum from the date of repudiation of the claim i.e, 28.2.2006.
7
19. Against the said judgment of the District Forum, an appeal was filed by the appellant before the State Commission. The State Commission also accepted the finding of the District Forum in view of the fact that there is no dispute with regard to the complainant's husband having a valid insurance policy and also in view of the fact that there is no dispute that the accident occurred and the insured died during the validity of the said policy.
20. In view of such concurrent finding, the National Commission did not interfere with the same. The State Commission also came to a finding that the burden is on the Insurance Company to show that the driving licence of the deceased was fabricated and the said burden has not been discharged.
8
21. The basic issue in the case was whether the deceased had a valid driving licence to drive the vehicle i.e. motor cycle with gear which was involved in the accident. The District Forum, State Commission and National Commission were of the view that since the deceased had a valid insurance policy and there was no dispute that the accident had taken place and the insured died during the validity of said policy, the stand that the driving licence of the deceased was fabricated was of no consequence. It was held that the insurance company had not discharged the burden to prove that the driving licence of the deceased was fabricated. The District Forum observed that no affidavit of the authority who issued the certificate (Ex.B-2) has been filed. The view was endorsed by the State Commission and by the National Commission. Additionally, the National Commission held that the licence produced clearly indicated that the deceased was having 9 licence to drive motor cycle also. This finding cannot be maintained because there was a dispute about the genuineness of the licence failed to show that the deceased had licence to drive motor cycle. Additionally after Exh.
B-2 was filed, there was no material brought on record by the complainant to show that the certificate dated 27.2.2006 issued by transport authorities was not authentic.
Therefore the question of the insurance company having not discharged the burden, does not arise. In addition the decision in Swaran Singh's case (supra) was considered in Dhut [2007 (4) SCALE 36]. In Laxmi Narain's case (supra) this Court observed that the said decision is applicable to only third party claim cases and even had no application to own damage cases i.e. cases of contractual liability. The present case is not a third party case and is a case of contractual 10 liability and therefore Swaran Singh's case (supra) was not applicable.
22. In the circumstances we think that it would be appropriate to remit the matter to the National Commission to consider the matter afresh in the light of Laxmi Narain's case (supra). The National Commission shall permit the parties to place material on record regarding the authenticity or otherwise of the driving licence.
23. The appeal is disposed of.
.......................J.
(Dr. ARIJIT PASAYAT) .......................J.

NATIONAL HUMAN RIGHTS COMMISSION v. STATE OF GUJARAT & ORS. [2009] INSC 870 (1 May 2009)

Court had directed the Gujarat Government to constitute a five members Special Investigation Team (in short the `SIT')
Judgement

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITON (CRL.) NO. 109 of 2003

National Human Rights Commission ..Petitioner


versus


State of Gujarat and Ors. ..Respondents

With Crl.M.P. No.10719/2003 in WP (Crl.) No.109/2003 Crl.M.P. No. 7078/2003 in WP (Crl.) No.109/2003 Crl.M.P. No. 7827/2003, 8193/2003 & 8194/2003 in WP (Crl.) No.109/2003 Crl.M.P. No. 11668/2003 in WP (Crl.) No.109/2003 Crl.M.P. No. 11689/2003 in WP (Crl.) No.109/2003 Crl.M.P. No. 4782/2003 in WP (Crl.) No.109/2003 Crl.M.P. No. 3741/2004 & 3742/2004 in WP (Crl.) No.109/2003 Crl.M.P. No. 6864/2004 in WP (Crl.) No.109/2003 Crl.M.P. No. 9236/2005 in WP (Crl.) No.109/2003 Crl.M.P. No. 6767/2006 in WP (Crl.) No.109/2003 Crl.M.P. No. 7824/2007 in WP (Crl.) No.109/2003 W.P. (Crl.) No.D.17953/2003 TP (Crl.) Nos. 194-202 and 326-329/2003 SLP (Crl.) No.7951/2002 SLP (Crl.) No.4409/2003 SLP(Crl.) No.5309/2003 WP(Crl.) No.216/2003 TP(Crl.) No. 66-72/2004 TP(Crl.) No.43 of 2004 WP(Crl.) No. 118 of 2003 TP(Crl.) Nos. 233-234/2004 WP (Crl.) Nos. 37-52/2002 WP (Crl.) No.284/2003 Crl.M.P. No.6767/2006 in Crl.M.P.Nos. 3741-3742/2004 in WP(Crl.)No.109/2003 Crl.M.P. No.4485/2006 in SLP (Crl.) No.3770/2003


Dr. ARIJIT PASAYAT, J.
1. By order dated 26.3.2008 in this group of cases this Court had directed the Gujarat Government to constitute a five members Special Investigation Team (in short the `SIT') to be headed by Mr. R.K. Raghavan, former Director of the Central Bureau of Investigation to undertake inquiry/investigation including further investigation in nine cases. It was further directed that the SIT shall submit its report within a particular time.
The State Government issued a Notification dated 1.4.2008 constituting the SIT. On 11.2.2009 the SIT has submitted its consolidated report. It has indicated therein that since its constitution the SIT has made considerable progress in respect of each of the nine cases and the current status is as follows:
2 1: Godhra Railway Police Station Cr. No 09/02 Applications received 63 Witnesses examined 183(125 old & 61 new) Number arrested -- Charge sheets filed - Stage of investigation Completed 2: Khambholaj Police Station Cr. No 23/02 Applications received 17 Witnesses examined 85(30 old & 55 new) Number arrested Court is requested to issue process against 16 accused Charge sheets filed Amended separate charge sheet-1 Stage of investigation Completed 3: Khambholaj Police Station Cr. No 27/02 Applications received 17 Witnesses examined 39 Number arrested 3 - Charge sheets filed - Stage of investigation Completed 4: Naroda Police Station Cr. No 98/02 Applications received 06 Witnesses examined 450 Number arrested 20 Chargesheets filed 02 Stage of investigation Nearly complete 5: Naroda Police Station Cr. No 100/02 Applications received 88 Witnesses examined : 341 Number arrested 17 Chargesheets filed 01 Stage of investigation Nearly complete 4
6. Meghaninagar Police Station Cr. No 67/02 Applications received 59 Witnesses examined 227 Number arrested 18 Chargesheets filed 03 Stage of investigation. Nearly complete 7: Visnagar Police Station Cr. No 60/02 Applications received 05 Witnesses examined 42 Number arrested 03 Chargesheets filed 01 Stage of investigation Nearly complete
8. Vijapur Police Station Cr.No.46/02 Applications received 13 Witnesses examined 39 Number arrested 21 Chargesheets filed 02 Stage of investigation Completed 5
9. Prantij Police Station Cr.No.100/02 Applications received 10 Witnesses examined 24 (14 old and 10 new) Number arrested - Chargesheets filed - Stage of investigation Completed
2. In separate sealed covers the IO's report in each case accompanied by the Supervising IGP and the Chairman's comments were submitted. The other members of the team are Shri C.B. Satpathy, Smt. Geetha Johri, Shri Shivanand Jha and Shri Ashish Bhatia. The last three are officers of the Indian Police Service from the Gujarat cadre.
3. Pursuant to the directions given by this Court copies of the report were supplied to learned Amicus Curiae and learned counsel for the State of Gujarat. Suggestions have been given by learned Amicus Curiae, learned counsel for the State and some of the parties in the proceedings.
6
4. Several important aspects need to be noted in these cases. Firstly, due to the efforts of SIT, persons who were not earlier arrayed as accused have now been arrayed as accused. From the details indicated above it appears that in most of the cases a large number of persons have been additionally made accused. Besides this, a large number of witnesses were also examined in each case. This goes to show the apparent thoroughness with which the SIT has worked. Therefore, the SIT shall continue to function until the completion of trial in all the cases and if any further inquiry/investigation is to be done the same can be done as provided in law, more particularly, under Section 173 (8) of the Code of Criminal Proceudre,1973 (in short the `Code').
5. A few important aspects concerning the cases need to be noted.
(1) Fair trial (2) Modalities to ensure that the witnesses depose freely and in that context the need to protect the witnesses from interference by person(s) Connected with it is the protection of victims who in most cases are witnesses.
(3) Able assistance to court by competent public prosecutors.
7 (4) Further role of SIT.
6. So far as fair trial is concerned the discovery and vindication and establishment of truth are certainly the main purposes of courts of justice.
They are the underlying objects for the existence of the courts of justice.
7. The importance of the witnesses in a criminal trial does not need any reiteration. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Ors. (2006 (3) SCC 374) it was observed as under:
"22. The complex pattern of life which is never static requires a fresher outlook and a timely and vigorous moulding of old precepts to some new conditions, ideas and ideals. If the court acts contrary to the role it is expected to play, it will be destruction of the fundamental edifice on which the justice delivery system stands. People for whose benefit the courts exist shall start doubting the efficacy of the system. "Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: `The Judge was biased.' " (Per Lord Denning, M.R. in Metropolitan Properties Co. Ltd. v. Lannon, All ER p. 310 A.) The perception may be wrong about the Judge's bias, but the Judge concerned must be careful to see that no such impression gains ground. Judges like Caesar's wife should be above suspicion (Per Bowen, L.J. in Leeson v. General Council of Medical Education.) xx xx xx
24. It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep the promise to justice and 8 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 lose hope (see Jennison v. Baker).
Increasingly, people are believing as observed by Salmon 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."
xx xx xx
30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the 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 not losing sight of the public interest involved in the prosecution of persons who commit offences.
31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as "one of the ablest judgements of one of the ablest judges who ever sat in this Court", Vice-Chancellor Knight Bruce said (ER p.957):
"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 9 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."
32. Restraints on the processes for determining the truth are multifaceted. 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 at every step."
10
33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices.
It is a constant, ongoing development process continually adapted to new changing circumstances, and exigencies of the situation--peculiar at times and related to the nature of crime, persons involved--directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
34. 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 particularised 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."
35. 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 affects the whole community as a community and is harmful to 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. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding 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 court is to 11 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. The 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.
36. 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 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 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 an 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.
12
37. 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 in 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.
38. 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 vitiated and violated by an over hasty stage- managed, tailored and partisan trial.
39. 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.
40. "Witnesses" as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy 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 13 court or due to negligence or ignorance or some corrupt collusion. 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 the 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 the 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 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 the 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 Dhanaj Singh v. State of Punjab. It was observed as follows: (SCC p.657, paras 5-7) "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. (See Karnel Singh v. State of M.P.)
6. In Paras Yadav v. State of Bihar 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 dehors such omissions to find out whether the said evidence is reliable or not, the contaminated 14 conduct of officials should not stand in the way of evaluating the 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 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 reiterated in Amar Singh v. Balwinder Singh."
41. 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 have 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 the court the witness could safely depose the 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 (sic repetition). We can only say this with regard to the criticism levelled against the State of Gujarat.
Some legislative enactments 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 the 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 the courts mere mock trials as are usually seen in movies."
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8. It is an established fact that witnesses form the key ingredient in a criminal trial and it is the testimonies of these very witnesses, which establishes the guilt of the accused. It is, therefore, imperative that for justice to be done, the protection of witnesses and victims becomes essential, as it is the reliance on their testimony and complaints that the actual perpetrators of heinous crimes during the communal violence can be brought to book.
9. Vide an order dated 8th August 2003 in the matter of National Human Rights Commission v. State of Gujarat, this Court regretted 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."
10. Further, in the case of Zahira v. State of Gujarat (2004 (4) SCC 158), while transferring what is known as the `Best Bakery Case', to Mumbai vide 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. "
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11. The Law Commission in its 14th Report (1958) referred to 'witness- protection', but that was in a limited sense. That related to proper arrangements being provided in the Courthouse, the scales of travelling allowance, their daily allowance etc.
12. The National Police Commission Report (1980) again dealt with the inadequacy of daily allowance for the witnesses, but nothing more.
13. The 154th Report of the Law Commission 1996 contained a chapter on Protection and facilities to Witnesses. The recommendations mostly related to allowances and facilities to be made available for the witnesses.
However, one of the recommendations was: "Witnesses should be protected from the wrath of the accused in any eventuality". But, Commission had not suggested any measure for the physical protection of witnesses.
14. The 178th Report of Law Commission, again, referred to the fact of witness turning hostile, and the recommendations were only to prevent witnesses from turning hostile. The report suggested an amendment to insert Section 164-A to the Code.
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15. The Law Commission of India's 198th Report has also voiced similar concerns and has categorically stated "it is accepted today that WIP is necessary in the case of all serious offences wherein there is danger to witnesses and it is not confined to cases of terrorism or sexual offences"
16. Under the English law, threatening a witness from giving evidence, is contempt of Court. So also any act of threat or revenge against a witness after he has given evidence in Court, is also considered as contempt. In 1994 the U.K. Government enacted a law known as Criminal Justice and Public Order Act, 1994 which provides for punishment for intimidation of witnesses. Section 51 of the Act not only protects a person who is actually going to give evidence at a trial, but also protects a person who is helping with or could help with the investigation of a crime. Under a similar law in Hong-Kong, Crimes Ord. (Cap. 200) HK, if the threat or intimidation is directed even as against a friend or relative of the witness, that becomes a punishable offence
17. In the United States, the Organized Crime Control Act, 1970 and later the Comprehensive Crime Control Act, 1984 authorized the Witness 18 Security Programme. The Witness Security Reform Act, 1984 provides for relocation and other protection of a witness or a potential witness in an official proceeding concerning an organised criminal activity or other serious offence. Protection may also be provided to the immediate family of, or a person closely associated with, such witness or potential witness if the family or person may also be endangered on account of the participation of the witness in the judicial proceeding.
18. The Attorney General takes the final decision whether a person is qualified for protection from bodily injury and otherwise to assure the health, safety and welfare of that person. In a large number of cases, witnesses have been protected, relocated and sometimes even given new identities. The Programme assists in providing housing, medical care, job training and assistance in obtaining employment and subsistence funding until the witness becomes self-sufficient. The Attorney General shall not provide protection to any person if the risk of danger to the public, including the potential harm to innocent victims, overweighs the need for that person's testimony. A similar programme is in Canada under Witness Protection Act, 1996. The purpose of the Act is "to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing 19 assistance in law enforcement matters" [Section 3]. Protection given to a witness may include relocation, accommodation and change of identity as well as counseling and financial support to ensure the security of the protectee or to facilitate his becoming self-sufficient. Admission to the Programme is determined by the Commissioner of Police on a recommendation by a law enforcement agency or an .international criminal court or tribunal [Sections 5 and 6]. The extent of protection depends on the nature of the risk to the security of the witness, the value of the evidence and the importance in the matter.
19. The Australian Witness Protection Act, 1994 establishes the National Witness Protection Programme in which (amongst others) the Commissioner of the Australian Federal Police arranges or provides protection and other assistance for witnesses [Section 4]. The witness must disclose a wealth of information about himself before he is included in the Programme. This includes his outstanding legal obligations, details of his criminal history, details of his financial liabilities and assets etc. [Section 7]. The Commissioner has the sole responsibility of deciding whether to include a witness in the Programme.
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20. The Witness Protection Act, 1998 of South Africa provides for the establishment of an office called the Office for Witness Protection within the Department of Justice. The Director of this office is responsible for the protection of witnesses and related persons and exercises control over Witness Protection Officers and Security Officers [Section 4]. Any witness who has reason to believe that his safety is threatened by any person or group or class of persons may report such belief to the Investigating Officer in a proceeding or any person in-charge of a police station or the Public Prosecutor etc. [Section 7) and apply for being placed under protection. The application is then considered by a Witness Protection Officer who prepares a report, which is then submitted to the Director [Section 9]. The Director, having due regard to the report and the recommendation of the Witness Protection Officer, takes into account the following factors, inter-alia, [Section 10] for deciding whether a person should be placed under protection or not:
(i) The nature and extent of the risk to the safety of the witness or related person.
(ii) The nature of the proceedings in which the witness has given evidence or may be required to give evidence.
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21. The importance, relevance and nature of the evidence, etc, in European countries such as Italy, Germany and Netherlands, the Witness Protection Programme covers organised crimes, terrorism, and other violent crimes where the accused already know the witness/victim.
22. But it would not be proper to give any general directions for witness protection. It would primarily depend upon the fact situation of each case.
Practical difficulties in effectively implementing any witness protection scheme cannot be lost sight of. We are considering that aspect focusing on the fact situation of the present cases.
23. The need for setting up separate victim and witness protection units in the trial of mass crimes has been acknowledged in the setting up of international tribunals to deal with them. The International Criminal Tribunal for Rwanda has formulated rules for protection of victims and witnesses. Similar provisions exist in the Statute for the creation of an International Criminal Court (in short `ICC'). In most of the cases, witnesses are the victims of the crime. Most vulnerable amongst them are women and children. Under the existing system they are mere pawns in a criminal trial and there is very little concern for protecting their real interests. The 22 protection is necessary so that there is no miscarriage of justice; but protection is also necessary to restore in them, a sense of human dignity.
24. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly in resolution 40/34 of 29th November, 1985. According to the first paragraph of this declaration, victims of crime are described as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in Member States, including those laws proscribing criminal abuse of power. It is they who need protection.
25. This is essentially to obliterate the apprehension that the public prosecutor is not fair in court or is not conducting the prosecution in the proper manner. The State of Gujarat shall appoint public prosecutors in each of the cases in consultation with the SIT which opinion shall be final and binding on the State Government.
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26. It needs to be emphasized that the rights of the accused have to be protected. At the same time the rights of the victims have to be protected and the rights of the victims cannot be marginalized. Accused persons are entitled to a fair trial where their guilt or innocence can be determined. But from the victims' perception the perpetrator of a crime should be punished.
They stand poised equally in the scales of justice.
27. In order to ensure that the trials are conducted in a fair manner and within the realm of protecting the rights of the victims it is important that the decorum of the court is maintained at all times. In order to balance the need for a public trial with the need to ensure that victims/witnesses are not intimidated within the court rooms, it is necessary for the court to impose reasonable restrictions on the entry of persons into the court room.
28. The role of public prosecutors in ensuring a fair trial is of paramount importance.
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29. This Court in S.B. Shahane and Ors. v. State of Maharashtra and Another, 1995 Supp (3) SCC 37 had stressed on the desirability of separation of prosecution agency from investigation agency. It was observed that such Assistant Public Prosecutors could not be allowed to continue as personnel of the Police Department and to continue to function under the control of the head of the Police Department. State Governments were directed to constitute a separate cadre of Assistant Public Prosecutors by creating a separate prosecution Department making its head directly responsible to the State Government.
30. Many commonwealth countries like Australia have a Commonwealth Director of Public Prosecutions, which was set up by the Director of Public Prosecutions Act 1983 and started operations in 1984. The nine States and territories of Australia also have their own DPPs. Ultimate authority for authorizing prosecutions lies with the Attorney General. However, since that is a political post, and it is desired to have a non-political (public service) post carry out this function in most circumstances, the prosecutorial powers of the AG are normally delegated to the DPP. However, in South Australia the AG may direct the DPP to prosecute or not to prosecute. This is a very rare occurrence. It is common for those who hold the office of 25 Commonwealth or State DPP later to be appointed to a high judicial office.
In Canada, each province's Crown Attorney Office (Canada) is responsible for the conduct of criminal prosecutions. In Ontario, local Crown Attorney in the Criminal Law Division is in charge of criminal cases. Only British Columbia, Nova Scotia and Quebec (a civil code jurisdiction) have a Director of Public Prosecutions office. Recent legislation passed by Parliament split the conduct of federal prosecutions from the Department of Justice (Canada), and created the Office of the Director of Public Prosecutions (officially to be called as Public Prosecution Service of Canada). This legislation came into effect December 12, 2006.The Director of Public Prosecutions of Hong-Kong, China heads the prosecutions Division of the Department of Justice, which is responsible for prosecuting trials and appeals on behalf of the Hong Kong Special Administrative Region, providing legal advice to law enforcement agencies, acting on behalf of the Secretary for Justice in the institution of criminal proceedings, and providing advice and assistance to bureaux and departments in relation to any criminal law aspects of proposed legislation. The DPP is superintended by the Secretary for Justice, who is also accountable for the decisions of the DPP. The Director of Public Prosecutions in the Republic of Ireland has been responsible for prosecution, in the name of the People, of 26 all indictable criminal offences in the Republic of Ireland since the enactment of the Prosecution of Offences Act 1974. Before 1974, all crimes and offences were prosecuted at the suit of the Attorney General. The DPP may also issue a certificate that a case should be referred to the Special Criminal Court; a juryless trial court usually reserved for terrorists and organized criminals. In South Africa public prosecutions are conducted by an independent National Director of Public Prosecutions (NDPP). The NDPP is supported by a Chief Executive Officer, Marion Sparg, Deputies, regional Directors of Public Prosecutions (DPP's), and several Special Directors. The National Director is also head of the controversial Directorate of Special Operations (DSO) - commonly known as the Scorpions - which deals with priority and organized crime. In 2005, the unit instituted proceedings against the country's Deputy President, Jacob Zuma, leading to his dismissal. In England and Wales, the office of Director of Public Prosecutions was first created in 1880 as part of the Home Office, and had its own department from 1908. The DPP was only responsible for the prosecution of a small number of major cases until 1986 when responsibility for prosecutions was transferred to a new Crown Prosecution Service with the DPP as its head. He/she is appointed by the Attorney General for England and Wales. In Northern Ireland a similar situation existed, and the 27 DPP now heads the Public Prosecution Service for Northern Ireland.
31. The Law Commission in 1958 had recommended that a Director of Prosecutions be set up having its own cadre, though this recommendation was not included in the Code then. Again in 1996 the Law Commission in its 154th report identified as Independent Prosecuting Agency as one of the several areas within the Code which required redesigning and restructuring.
The Law Commission supported most of the proposed amendments to the Code as contained in the proposed Code of Criminal Procedure Amendment Bill 1994. Recommendations related to the structure of a Directorate of Prosecutions at the State level, to be adopted by a State Government in the event it decided to set up a cadre of prosecutors. The Law Commission further recommended that the structure of State level Directorates of Prosecution be given statutory status through an amendment to the Code.
32. Despite the absence of such a requirement and inadequacy of the Provisions in the Code a number of states mainly, Delhi, Andhra Pradesh, Bihar, Goa, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Orissa, Tamil Nadu and Uttaranchal, established a Directorate of Prosecution.
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33. By an amendment in 2006, Section 25A was inserted in the Code, which categorically legislated for the creation of a Directorate of Prosecution in every state.
"25-A. Directorate of Prosecution.-(1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible . to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
29 (5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of Section 24 to conduct cases in the High. Court shall be subordinate to the Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
(8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.
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34. As noted above, the role of victim in a criminal trial can never be lost sight of. He or she is an inseparable stakeholder in the adjudicating process.
35. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, was adopted by the General Assembly through a resolution 40/34 of 29th November 1985. Articles 4 and 5 of the above mentioned United Nations Declaration categorically states:
4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
36. The appointment of Prosecutors to these trials has to be made in consultation with SIT, whose opinion would be binding on the state government.
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37. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly through a resolution 40/34 of 29th November 1985categorically through Section 6 (b) provides:
"6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system".
38. In the United States of America, the existing Crime Victims Rights Act of 2004, categorically through section 3771(4) from chapter 237 provides for "the right to be heard at any public proceeding involving release, pleas or sentencing".
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39. This Court had held in U.P.S.C. v. S. Papiah (1997) 7 SCC 614 that a closure report by the Prosecution cannot be accepted by the court without hearing the informant.
Para 9-There can therefore, be no doubt that when, on a consideration of the report a made by the officer-in-charge of a police station under Section 2(i) of Section 173 the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the magistrate to take cognizance of the offence and issue process.
We are accordingly of the view that in a case where the Magistrate to whom the report is forwarded under sub section (2) (i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of the consideration of this report."
40. This position was illuminatingly stated in Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968 SC 117).
41. In J.K. International v. State Government of NTC (2001)3 SCC 462, this Court had held that:
"A person at whose behest an investigation is lunched by the police is not altogether wiped out of the scenario of 33 the trial merely because the investigation was taken over by the police and the charge sheet was laid by them."
42. Since the protection of a witness is a paramount importance it is imperative that if and when any witness seeks protection so that he or she can depose freely in court, the same has to be provided. It is therefore directed that if a person who is examined as a witness needs protection to ensure his or her safety to depose freely in a court he or she shall make an application to the SIT and the SIT shall pass necessary orders in the matter and shall take into account all the relevant aspects and direct such police official/officials as it considers proper to provide the protection to the concerned person. It shall be the duty of the State to abide by the direction of the SIT in this regard. It is essential that in riot cases and cases involving communal factors the trials should be held expeditiously. Therefore, we request the Hon'ble Chief Justice of Gujarat High Court to designate court(s) in each district where the trial of the concerned cases are to be held. The Designated Courts shall take up the cases in question. Taking into account the number of witnesses and the accused persons and the volumes of evidence, it is open to the High Court to designate more than one court in a particular district. Needless to say that these cases shall be taken up by the Designated Court on a day-to-day basis and efforts shall be made to 34 complete the trial with utmost expedition. The SIT shall furnish periodic reports if there is any further inquiry/investigation. The State of Gujarat shall also file a status report regarding the constitution of the courts in terms of the directions to be given by the Hon'ble Chief Justice of the High Court within three months. The matter shall be listed further as and when directed by this Court.
43. It appears that in these petitions, which sought various reliefs including the transfer of some of the ongoing trials, and a reinvestigation/further investigation into the various incidents on the basis of which charges had been filed in these trials, this Court, in the first instance, granted a stay of these ongoing trials.
44. The matter was then heard from time to time and an order was then made on 26th March 2008 directing the establishment of the SIT, and for a further investigation into these matters. The matters under investigation were those arising out of (a) Crime No. 9/02 35 (b)Crime No. 100/02 (c) Crime No. 23/02 (d) Crime No. 98/02 (e) Crime No. 46/02 (f) Crime No. 67/02 (g) Crime No. 60/02 (h) Crime No. 26/02 (i) Crime No. 27/02
45. The reports of the SIT, in respect of each of these cases have now been received. We have considered the submissions made by Mr. Harish N.
Salve, learned amicus curiae, Mr. Mukul Rohtagi, learned counsel for the State, Ms. Indira Jaisingh and other learned counsel.
46. The following directions are given presently:
(i) Supplementary charge sheets shall be filed in each of these cases as the SIT has found further material and/or has identified other accused against whom charges are now to be brought.
36 (ii) the conduct of the trials has to be resumed on a day-to-day basis - keeping in view the fact that the incidents are of January, 2002 and the trials already stand delayed by seven years. The need for early completion of sensitive cases more particularly in cases involving communal disturbances cannot be overstated.
(iii) the SIT has suggested that the six "Fast Track Courts" be designated by the High Court to conduct trial, on day-to-day basis, in the five districts as follows:
i) Ahmedabad (Naroda Patia, Naroda Gam) ii) Ahmedabad (Gulbarg).
iii) Mehsana (for two cases).
iv) Saabarkantha opened(British National case) v) Anand vi) Godhra Train Case (at Sabarmati Jail, Ahmedabad).
(iv) It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as 37 soon as possible and in the most satisfactory manner. In order to ensure that all concerned have the highest degree of confidence in the system being put in place, it would be advisable if the Chief Justice of the High, Court of Gujarat selects the judicial officers to be so nominated. The State of Gujarat has, in its suggestions, stated that it has no objection to constitution of such "fast track courts", and has also suggested that this may be left to Hon'ble the Chief Justice of the High Court.
(v) Experienced lawyers familiar with the conduct of criminal trials are to be appointed as Public Prosecutors. In the facts and circumstances of the present case, such public prosecutors shall be appointed in consultation with the Chairman of the SIT. The suggestions of the State Government indicate acceptance of this proposal. It shall be open to the Chairman of SIT to seek change of any Public prosecutor so appointed if any deficiency in performance is noticed. If it appears that a trial is not proceeding as it should, and the Chairman of the SIT is satisfied that the situation calls for a change of the public prosecutor or the appointment of an additional public prosecutor, to either assist or lead the existing Public Prosecutor, he may make a request to this effect to the Advocate General of the State, 38 who shall take appropriate action in light of the recommendation by the SIT.
(vi) If necessary and so considered appropriate SIT may nominate officers of SIT to assist the public prosecutor in the course of the trial.
Such officer shall act as the communication link between the SIT and the Public Prosecutor, to ensure that all the help and necessary assistance is made available to such Public Prosecutor.
(vii) The Chairman of the SIT shall keep track of the progress of the trials in order to ensure that they are proceeding smoothly and shall submit quarterly reports to this court in regard to the smooth and satisfactory progress of the trials.
(viii) The stay on the conduct of the trials are vacated in order to enable the trials to continue. In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary, the SIT can request the Public Prosecutor to seek cancellation of the bails already granted.
39 (ix) For ensuring of a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court:
In case of witnesses following steps shall be taken:
(a) Ensuring safe passage for the witnesses to and from the court precincts.
(b) Providing security to the witnesses in their place of residence wherever considered necessary, and (c) Relocation of witnesses to another state wherever such a step is necessary.
(x) As far as the first and the second is concerned, the SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness.
40 (xi) In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities.
(xii) In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witness. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to relocate the witnesses.
(xiii) All the aforesaid directions are to be considered by SIT by looking into the threat perception if any.
(xiv) The SIT would continue to function and carry out any investigations that are yet to be completed, or any further investigation that may arise in the course of the trials. The SIT would 41 also discharge such functions as have been cast upon them by the present order.
(xv) If there are any matters on which directions are considered necessary (including by way of change of public prosecutors or witness protection), the Chairman of the SIT may (either directly or through the Amicus Curiae) move this Court for appropriate directions.
(xvi) It was apprehension of some learned counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the Court shall have to deal with such situations sternly and pass necessary orders. The SIT shall also look into this area.
(xvii) Periodic three monthly reports shall be submitted by the SIT to this Court in sealed covers.
47. List after four months.
.................................J.
(Dr. ARIJIT PASAYAT) .................................J.
42 (P.SATHASIVAM) ................................J.