Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158

Selvi J.Jayalalithaa & Ors vs State Of Karnataka & Ors., [WRIT PETITION (CRIMINAL) NO. 154 OF 2013]
Md.Shahabuddin vs State Of Bihar & Ors., [CRIMINAL APPEAL NO.591 OF 2010]
Sister Mina Lalitha Baruwa vs State Of Orissa & Ors., [CRIMINAL APPEAL NO.2044 OF 2013]
Anjanappa vs State Of Karnataka, [CRIMINAL APPEAL NO. 1223 OF 2008]

J U D G M E N T (Arising out of SLP(Crl.)Nos. 538-541/2004) WITH CRIMINAL APPEAL NOS.450-452/2004 (Arising out of SLP (Crl.)Nos. 1039-1041/2004) ARIJIT PASAYAT,J Leave granted.

The present appeals have several unusual features and some of them pose very serious questions of far reaching consequences. The case is commonly to be known as "Best Bakery Case". One of the appeals is by Zahira who claims to be an eye-witness to macabre killings allegedly as a result of communal frenzy. She made statements and filed affidavits after completion of trial and judgment by the trial Court, alleging that during trial she was forced to depose falsely and turn hostile on account of threats and coercion. That raises an important issue regarding witness protection besides the quality and credibility of the evidence before Court. The other rather unusual question interestingly raised by the State of Gujarat itself relates to improper conduct of trial by the public prosecutor. Last, but not the least that the role of the investigating agency itself was perfunctory and not impartial. Though its role is perceived differently by the parties, there is unanimity in their stand that it was tainted, biased and not fair. While the accused persons accuse it for alleged false implication, the victims' relatives like Zahira allege its efforts to be merely to protect the accused.

The appeals are against judgment of the Gujarat High Court in Criminal Appeal No. 956 of 2003 upholding acquittal of respondents-accused by the trial Court. Along with said appeal, two other petitions namely Criminal Miscellaneous Application No. 10315 of 2003 and Criminal Revision No. 583 of 2003 were disposed of. The prayers made by the State for adducing additional evidence under Section 391 of the Code of Criminal Procedure, 1973 (in short the 'Code'), and/or for directing retrial were rejected. Consequentially, prayer for examination of witnesses under Section 311 of the Code was also rejected.

In a nutshell the prosecution version which led to trial of the accused persons is as follows:

Between 8.30 p.m. of 1.3.2002 and 11.00 a.m. of 2.3.2002, a business concern known as "Best Bakery" at Vadodara was burnt down by an unruly mob of large number of people. In the ghastly incident 14 persons died. The attacks were stated to be a part of retaliatory action to avenge killing of 56 persons burnt to death in the Sabarmati Express. Zahira was the main eye-witness who lost family members including helpless women and innocent children in the gruesome incident. Many persons other than Zahira were also eye-witnesses. Accused persons were the perpetrators of the crime. After investigation charge sheet was filed in June 2002.

During trial the purported eye-witnesses resiled from the statements made during investigation. Faulty and biased investigation as well as perfunctory trial were said to have marred the sanctity of the entire exercise undertaken to bring the culprits to books. By judgment dated 27.6.2003, the trial Court directed acquittal of the accused persons.

Zahira appeared before National Human Rights Commission (in short the 'NHRC') stating that she was threatened by powerful politicians not to depose against the accused persons. On 7.8.2003 an appeal not up to the mark and neither in conformity with the required care, appears to have been filed by the State against the judgment of acquittal before the Gujarat High Court. NHRC moved this Court and its Special leave petition has been treated as a petition under Article 32 of the Constitution of India, 1950 (in short the 'Constitution'). Zahira and another organisation - Citizens for Justice and Peace filed SLP (Crl.) No. 3770 of 2003 challenging judgment of acquittal passed by the trial Court. One Sahera Banu (sister of appellant-Zahira) filed the afore-noted Criminal Revision No. 583 of 2003 before the High Court questioning the legality of the judgment returning a verdict of acquittal. Appellant-State filed an application (Criminal Misc. Application NO.7677 of 2003) in terms of Sections 391 and 311 of the Code for permission to adduce additional evidence and for examination of certain persons as witness. Criminal Miscellaneous Application No. 9825 of 2003 was filed by the State to bring on record a document and to treat it as corroborative piece of evidence. By the impugned judgment the appeal, revision and the applications were dismissed and rejected.

The State and Zahira had requested for a fresh trial primarily on the following grounds:

When a large number of witnesses have turned hostile it should have raised a reasonable suspicion that the witnesses were being threatened or coerced. The public prosecutor did not take any step to protect the star witness who was to be examined on 17.5.2003 specially when four out of seven injured witnesses had on 9.5.2003 resiled from the statements made during investigation. Zahira Sheikh - the Star witness had specifically stated on affidavit about the threat given to her and the reason for her not coming out with the truth during her examination before Court on 17.5.2003.

The public prosecutor was not acting in a manner befitting the position held by him. He even did not request the Trial court for holding the trial in camera when a large number of witnesses were resiling from the statements made during investigation.

Prayer was made by learned counsel for the appellant that the trial should be conducted outside the State so that the unhealthy atmosphere which led to failure of miscarriage of justice is not repeated. This prayer has to be considered in the background and keeping in view the spirit of Section 406 of the Code. It is one of the salutory principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case or that general allegations of a surcharged atmosphere against a particular community alone does not suffice. The Court has to see whether the apprehension is reasonable or not. The state of mind of the person who entertains apprehension, no doubt is a relevant factor but not the only determinative or concluding factor. But the Court must be fully satisfied about the existence of such conditions which would render inevitably impossible the holding of a fair and impartial trial, uninfluenced by extraneous considerations that may ultimately undermine the confidence of reasonable and right thinking citizen, in the justice delivery system. The apprehension must appear to the Court to be a reasonable one. This position has been highlighted in Gurcharan Das Chadha v. State of Rajasthan (1966 (2) SCR 678), and K. Ambazhagan v. The Superintendent of Police and others etc. (JT 2003 (9) SC 31).

Keeping in view the peculiar circumstances of the case, and the ample evidence on record, glaringly demonstrating subversion of justice delivery system with no congeal and conducive atmosphere still prevailing, we direct that the re-trial shall be done by a Court under the jurisdiction of Bombay High Court. The Chief Justice of the said High Court is requested to fix up a Court of Competent jurisdiction.

We direct the State Government to appoint another Public Prosecutor and it shall be open to the affected persons to suggest any name which may also be taken into account in the decision to so appoint. Though the witnesses or the victims do not have any choice in the normal course to have a say in the matter of appointment of a Public Prosecutor, in view of the unusual factors noticed in this case, to accord such liberties to the complainants party, would be appropriate.

The fees and all other expenses of the public prosecutor who shall be entitled to assistance of one lawyer of his choice shall initially be paid by the State of Maharashtra, who will thereafter be entitled to get the same reimbursed from the State of Gujarat. The State of Gujarat shall ensure that all the documents and records are forthwith transferred to the Court nominated by the Chief Justice of the Bombay High Court. The State of Gujarat shall also ensure that the witnesses are produced before the concerned Court whenever they are required to attend that Court. Necessary protection shall be afforded to 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. All expenses necessary for the trial shall be initially borne by the State of Maharashtra, to be reimbursed by the State of Gujarat.

Since we have directed re-trial it would be desirable to the investigating agency or those supervising the investigation, to act in terms of Section 173(8) of the Code, as the circumstances seem to or may so warrant. The Director General of Police, Gujarat is directed to monitor re-investigation, if any, to be taken up with the urgency and utmost sincerity, as the circumstances warrant.

Sub-section (8) of Section 173 of the Code permits further investigation, and even de hors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted.

Before we part with the case it would be appropriate to note some disturbing factors. The High Court after hearing the appeal directed its dismissal on 26.12.2003 indicating in the order that the reasons were to be subsequently given, because the Court was closing for winter holidays. This course was adopted "due to paucity of time". We see no perceivable reason for the hurry. The accused were not in custody. Even if they were in custody, the course adopted was not permissible. This Court has in several cases deprecated the practice adopted by the High Court in the present case.

About two decades back this Court in State of Punjab v. Jagdev Singe Talwandi (AIR 1984 SC 444) had inter alia observed as follows :

"We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement.

Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the other, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented.

The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment."

It may be thought that such orders are passed by this Court and, therefore, there is no reason why the High Courts should not do the same. We would like to point out that the orders passed by this Court are final and no further appeal lies against them. The Supreme Court is the final Court in the hierarchy of our Courts. Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of the concerned statutes. We thought it necessary to make these observations so that a practice which is not a very desirable one and which achieves no useful purpose may not grow out of and beyond its present infancy. What is still more baffling is that written arguments of the State were filed on 29.12.2003 and by the accused persons on 1.1.2004. A grievance is made that when the petitioner in Criminal Revision No.583 of 2003 wanted to file notes of arguments that were not accepted making a departure from the cases of the State and the accused. If the written arguments were to be on record, it is not known as to why the High Court dismissed the appeal. If it had already arrived at a particular view there was no question of filing written arguments.

The High Court appears to have miserably failed to maintain the required judicial balance and sobriety in making unwarranted references to personalities and their legitimate moves before competent courts - the highest court of the nation, despite knowing fully well that it could not deal with such aspects or matters. Irresponsible allegations, suggestions and challenges may be made by parties, though not permissible or pursued defiantly during course of arguments at times with the blessings or veiled support of the Presiding Officers of Court. But, such besmirching tacts, meant as innuendos or serve as surrogacy ought not to be made or allowed to be made, to become part of solemn judgments, of at any rate by High Courts, which are created as Court of record as well. Decency, decorum and judicial discipline should never be made casualties by adopting such intemperate attitudes of judicial obstinacy. The High Court also made some observations and remarks about persons/constitutional bodies like NHRC who were not before it. We had an occasion to deal with this aspect to certain extent in the appeal relating to SLP (Crl.) Nos. 530- 532/2004. The move adopted and manner of references made, in para no. 3 of the judgment except the last limb (sub-para) is not in good taste or decorous. It may be noted that certain reference is made therein or grievances purportedly made before the High Court about role of NHRC. When we asked Mr. Sushil Kumar who purportedly made the submissions before the High Court, during the course of hearing, he stated that he had not made any such submission as reflected in the judgment. This is certainly intriguing. Proceedings of the court normally reflect the true state of affairs. Even if it is accepted that any such submission was made, it was not proper or necessary for the High Court to refer to them in the judgment, to finally state that no serious note was taken of the submissions. Avoidance of such manoeuvres would have augured well with the judicial discipline. We order the expunging and deletion of the contents of para 3 of the judgment except the last limb of the sub-para therein and it shall be always read to have not formed part of the judgment.

A plea which was emphasised by Mr. Tulsi relates to the desirability of restraint in publication/exhibition of details relating to sensitive cases, more particularly description of alleged accused persons in the print/electronic/broadcast medias. According to him, "media trial" causes indelible prejudice to the accused persons. This is sensitive and complex issue, which we do not think it proper to deal in detail in these appeals. The same may be left open for an appropriate case where the media is also duly and effectively represented.

If the accused persons were not on bail at the time of conclusion of the trial, they shall go back to custody, if on the other hand they were on bail that order shall continue unless modified by the concerned Court. Since we are directing a re-trial, it would be appropriate if same is taken up on day-to-day basis keeping in view the mandate of Section 309 of the Code and completed by the end of December 2004.

The appeals are allowed on the terms and to the extent indicated above.

These two applications "for directions and modification of the judgment and order dated 12.4.2004 in Crl. Appeal Nos. 446-449 of 2004 and Crl. Appeal Nos. 450-452 of 2004 (Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors. and connected cases)" (reported in 2004(4) SCALE 375) have been filed by the State of Gujarat and one of the accused by name Tulsibhai Bhikhabhai Tadvi who faced trial in the case. It would be appropriate to first deal with application filed by the State of Gujarat.

The reasons for making this application primarily are that the direction for fresh trial outside the State of Gujarat is unwarranted, per incurium being not permissible in law, in violation of principles of natural justice, without consideration of real factual scenario, without specific prayer in that regard and reflect adversely on the credibility of the entire judiciary and administration of the State.

Mr. Mukul Rohatgi, learned senior counsel appearing for the applicant - State submitted that the direction given for transfer outside the State of Gujarat is not in accordance with law. According to him, such a direction could only have been given on a petition filed under Section 406 of the Code of Criminal Procedure, 1973 (in short the 'Code') and not otherwise. Strong reliance is placed on a decision of this Court in A.R. Antulay v. R.S. Nayak and Another 1988 (2) SCC 602 ). Emphasis is laid on the observations at pages 729 and 730 paragraphs 204 and 206 respectively. It was submitted that even by exercise of power under Article 142 of the Constitution of India, 1950 , 1950 (in short the 'Constitution') also such a direction could not have been given. Reference in this context was made to Supreme Court Bar Association v. Union of India & Anr. 1998 (4) SCC 409 ). There is no power according to the applicant-State for suo moto directing such a course to be adopted.

The petition is in essence and substance seeking for a review under the guise of making an application for direction and modification apparently being fully aware of the normal procedure that such applications for review are not, unless Court directs, listed for open hearing in court, at the initial stage at least, before ordering notice to the other side and could be summarily rejected, if found to be of no prima facie merit. The move adopted itself is unjustified, and could not be countenanced also either by way of review or in the form the present application as well. The nature of relief sought, and the reasons assigned are such that even under the pretext of filing a review such an exercise cannot be undertaken, virtually for re-hearing and alteration of the judgment because it is not to the liking of the party, when there is no apparent error on record whatsoever to call for even a review. The said move is clearly misconceived and nothing but sheer abuse of process, which of late is found to be on the increase, more for selfish reasons than to further or strengthen the cause of justice. The device thus adopted, being otherwise an impermissible move by mere change in nomenclature of the applications does not change the basic nature of the petition. Wishful thinking virtually based on surmises too, at any rate is no justification to adopt such undesirable practices. If at all it should be for weighty and substantial reasons and not to exhibit the might or weight or even the affluence of the party concerned or those who represent such parties when they happen to be public authorities and institutions.

It is to be noted that a review application can be filed under Article 137 of the Constitution read with Order XL of the Supreme Court Rules, 1966 (in short the Rules). Rule 3 of Order XL is significant. It reads as follows:-

"Rule 3 - Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed."

As noted by a Constitution Bench of this Court in P.N. Eswara Iyer and Ors. v. Registrar, Supreme Court of India [ 1980 (4) SCC 680 ], Suthendraraja alias Suthenthira Raja alias Santhan & Ors. v. State, through DSP/CBI, Chennai [ 1999 (9) SCC 323 ], Ramdeo Chauhan alias Raj Nath v. State of Assam [ 2001 (5) SCC 714 ], and Devender Pal Singh v. State, NCT of Delhi and Another [ 2003 (2) SCC 501 ], notwithstanding the wider set of grounds for review in civil proceedings, it is limited to 'errors apparent on the face of the record' in criminal proceedings. Such applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with great sense of responsibility as well.

In Delhi Administration v. Gurdip Singh Uban and others [ 2000 (7) SCC 296 ] it was held that by describing an application one for "clarification" or "modification" though it is really one of review a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly. The Court should not permit hearing of such an application for "clarification", "modification" or "recall" if the application is in substance a clever move for review.

In that background, we could have straightaway and summarily too dismissed the application with exemplary costs for the blatant abuse of the process of law as done by the applicant - State. But we feel it necessary to highlight the magnitude of deceitfulness adopted to mislead and the patent falsity of the claims made as also the ulterior object behind the petition.

Firstly, the plea that there was no "specific prayer" for transfer outside the State is totally false and misleading. Every prayer need not always be by a separate application, unless such prayer is the only relief sought or that the proceedings filed had no other claim, by way of relief. If the basis of grievance has been sufficiently disclosed openly and the relief sought is one among others specified as incidental or ancillary to main relief and the Court had the power to grant it, the fact that there is no formal or specific application which if at all may be relevant for purposes of determining the Court fee to be paid only, does not in any way undermine the powers of the Court to accord relief, so long as the request in this regard has been indisputably made and was also responded to by the parties before Court. In fact at pages 123 onwards of the paper book in Crl. Appeal Nos. 446-449 of 2004, several grounds to justify the re-trial outside Gujarat have been indicated. The submissions made in this regard are found recorded in the judgment itself and to claim to the contrary is sheer travesty of truth, mean as well as meaningless. Secondly, the plea that issue of transfer was neither raised nor argued by all parties is of no consequence. It is not necessary that all parties should raise or argue it and no one was restrained from arguing it. So far as the question of argument is concerned, it is really shocking that false statement has been made that the point was "not permitted to be argued" (at page 5, para 'B') by a person whose presence and credibility to make such statement itself has not been substantiated. In the said paragraph it has been earlier stated that prayer for transfer outside the State was "opposed by the State". If the former plea does not amount to false statement, probably nothing would. The averment that the point was "not permitted to be argued", when on the same breath it is stated that the prayer was "opposed" really shows the extent of falsehood to which the applicant-State has gone and demonstrate the deterioration and falling standards in preparation and filing of papers in Court. Though we could have proceeded against the person on more than one counts, we only pity him for offering himself to be a scapegoat apparently for reasons best known to him, which at any rate could not be genuine or ethical whatsoever. The stand that there was no opportunity granted to the State is further falsified in view of what is stated in para 25 of the judgment (page 388 of SCALE). Even that apart opportunity before Courts are to be sought and availed of and there is no need to invite them to do so and grievance, if any, could be made in this regard only when sought for but rejected by the Court.

The decision in A.R. Antulay's case (supra) has really no application to the facts of the present case. Section 406 of the Code relates to a case where either the trial or appeal is pending before a trial Court or the High Court. In the case at hand the appeal against judgment of the High Court was being decided and the entire matter was in the hands of this Court and unless relegated back to the very Court, for which there is no compulsion to send it automatically, the power of this Court to send it to an appropriate Court to ensure complete justice between the parties and avert miscarriage of justice, cannot be doubted or questioned. Therefore, the question of filing a petition for transfer in terms of Section 406 of the Code did not arise. The decision in A.R. Antulay's case (supra) was not rendered in the context of the competency, jurisdictions or authority of this Court dealing with a substantial appeal against the judgments of the Courts below in exercise of its plenary jurisdiction, which have been construed to be capable of being exercised in spite of limitations, if any, under special provisions contained in the Constitution or other laws in order to do effective, real and substantial justice, co-extensive and commensurate with the needs of justice in a given case meeting any exigency. Orders of Courts under Article 136 of the Constitution have been held to be unassailable and cannot be said to be void. Whereas, Article 142, though very wide is viewed to be limited to the short compass of the actual dispute before the Court and not to what might necessarily and reasonably be connected with or related to such matter. In A.R. Antulay's case (supra) what was before the Court was an appeal from an order made in a Revision before the High Court which itself was against an order of the Special Judge constituted under the Criminal Law Amendment Act, 1952 rejecting the objections taken to the jurisdiction of the Special Judge to take cognizance of the complaint filed as a private complaint. It is in this context only Article 142 was not of assistance to that case, particularly in the teeth of the special provisions constituting a Special Court of particular nature and speciality de hors the other fact that the Court on its own without the seeking of any one of the parties directed transfer. The observations contained therein cannot be quoted or drawn out of context and consequently the decision in A.R. Antulay's case (supra) has no relevance or application to the present case and the reference to it is wholly inappropriate. Supreme Court Bar Association's case (supra) related to the scope of power under Article 142 of the Constitution and pertained to the authority of this Court to punish an advocate for professional misconduct and not merely to punish him for contempt in respect of which only the main matter itself was before this Court. The powers under Article 142 though considered to be of very wide amplitude are not complementary, and supplementary in nature available no doubt to prevent injustice and to do complete justice between parties in the pending litigation. The ratio in that case has no relevance to the present case and it would only justify the course adopted to prevent injustice and do complete justice between parties, as an inevitable consequence of the decision taken in the main appeal itself.

The direction given in the present case for transfer though keeping in view normal principles governing claims for transfer was really in exercise of powers as an Appellate Court with plenary and unlimited powers to do justice while dealing with an appeal under Article 136 of the Constitution and as an inevitable consequence of the appeals being allowed the reasons for which, would equally justify on their own the need for transfer outside the State as well. It is in essence an adjunctive power. As noted in Union Carbide Corporation and Ors. v. Union of India and Ors. [ 1991 (4) SCC 584 )] the purposed constitutional plenitude of the powers of the apex Court to ensure due and proper administration of justice is intended to be co- extensive in each case with the needs of justice of a given case and to meeting any exigency. Very wide powers have been conferred on this Court for due and proper administration of Justice. This Court retains an inherent power and jurisdiction for dealing with any extra ordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. The power is required to be exercised only in exceptional circumstances for furthering the ends of justice. Therefore, the ratio in A.R. Antulay's case (supra) in no way makes our judgment fragile. On the contrary, as noted above, the ratio in that decision has no application. Additionally, it may be noted that in A.R. Antulay's case (supra) the controversy related to transfer from the special Court to the High Court, a Court which was not the designated or constituted one under the special enactment. When the direction given in the judgment is for a re-trial by a Court of Session the logic applied in A.R. Antulay's case (supra) equally has no application.

It has to be noted that in A.R. Antulay's case (supra) it was noted by this Court that the question of transfer from one court to another was not in issue. As highlighted above, contrary to what has been pleaded by applicant-State there was specific issue relating to transfer of the case outside the State of Gujarat and arguments were advanced.

Another red herring which has been tried to be drawn is regarding pendency of writ petition/SLP involving prayer for transfer. The SLP appears to have been filed before delivery of judgment by the High Court and even before the appeals were heard by the High Court. After delivery of the judgment which was the subject matter of challenge in Criminal Appeals, the plea of transfer stated to have been made in some other SLPs (one of which was subsequently converted as a writ petition under Article 32 of the Constitution) is really of no consequence. The Writ Petition (Crl.) 109 of 2004 is stated to have been filed on 31st July, 2003 and SLP (Crl.) 3770 of 2003 in August, 2003. The appeal before the Gujarat High Court by the State was filed on 7.8.2003, amended twice as noted in the judgment itself. SLP (Crl.) 3770 of 2003 was filed against the judgment of the trial Court. SLP filed by NHRC was treated as one under Article 32 of the Constitution. This Court as the Appellate Court dealing with the judgments of the Trial Court and the Appellate Court, exercising plenary powers under Article 136 of the Constitution, while directing re-trial has ample jurisdiction to fix the place or the Court which should undertake such exercise, keeping in view the needs of justice in a given case with the object of ensuring real, substantial due and proper justice, and that too as an inevitable and necessary corollary of the decision to set aside the judgments of the Courts below. When the appeals were directed to be listed for hearing by constituting this Bench as specially designated by the Hon'ble CJI in exercise of his prerogative, and the proceedings before the other Bench presided over by the Hon'ble CJI was being adjourned in the presence of parties/counsel appearing before us as well awaiting the result of the appeals directed to be posted before this Bench, it is beyond comprehension and not only unethical but impermissible for anyone to expect that this Bench could not or ought not to have disposed of the appeals, as they deserve and the manner in which interests of justice would require. When the appeals have been directed to be posted before this Bench to hear the appeals, this Bench as the appellate Court exercising powers under Article 136 of the Constitution is entitled to deal with as warranted, necessitated and as they deserved in law, and it is pernicious for anyone to think or expect, as to how the Court should dispose it of, as some would wish or desire, partially or in a perfunctory manner.

So the plea that petitions relating to change of place of trial are pending before this Court deserves to be only noted and rejected.

Another plea which reflects ignorance about the judicial system is the plea that observations made without hearing has demoralising effect on the highest court of the State and Courts subordinate to it. This submission shows lack of awareness and want of understanding, apparently deliberately feigned, about functioning of Appellate Courts. When an appeal is heard and Appellate Court finds non-application of mind or erroneous application of law or perversity in appreciation of evidence it is not required to hear the concerned member(s) of judiciary whose orders are questioned. It is only when adverse comments are made personally attributing malafides or personal bias or involvement in the case, de hors the role as a judicial functionary and that too unrelated to the subject matter of lis, in a given case, the position may be different. Observations made while considering the legality, propriety, reasonableness, rationality or in a given case perversity in the manner of exercise of powers and passing orders by the Courts below under challenge in relation to a particular case do not reflect adversely on the competence of the entire network of Courts. We fail to understand how the observations made in any way can have demoralising effect on the highest Court of the State, or creating negative impact upon the State Judiciary in discharging its functions. A judgment, the observations and criticisms as to the manner of disposal have to be soberly read with objectivity and not out of context or even as a provision of an act or rule, with pre-conceived notions apparently exposing virtually ones' own hidden desires or agendas, if any. If only this Court intends to castigate or condemn anyone, who deserved such treatment, be it an institution or authority or incumbent in office, there is no need for it to labour on an excuses to do so indirectly. The monstrosity of the manner in which the Courts below dealt with the matter, though called for stronger and severe handling, we desisted from doing so, keeping in view a fond hope that all those concerned would at least attempt to show better performance, greater circumspection and desired awareness and dispassion to do real, effective and substantial justice.

Another aspect which throws considerable doubt about the bonafides of the State Government and its true colours is the veiled threat of legal action for changed statements and credibility of Zahira as a witness. It sounds more like a stand of the defence and not that of the prosecutor. Reading of the statements in this regard gives an impression as if in the eyes of the State Zahira is the accused who should be in the dock and not the persons who are made accused in the case. The State Government had filed application for acceptance of additional evidence primarily on the ground of what was stated in Zahira's affidavit to highlight the situation when her evidence and those of others were tendered before the trial court. It is, therefore, not only unusual but also reveals the total lack of seriousness and creation of a facade in casting doubts about her credibility and indirect threat to stick to her statement before the trial court. The State Government's sympathies more for the accused than the victims become crystal clear when one looks at the State's stand that the ramifications of the transfer are serious insofar as 'the accused' are concerned. The statement is made by an officer of the State on affidavit based on his knowledge, and are purportedly based on records of the case. One wonders how he could know it and how the records of the case reveal that the counsel for Zahira made "cursory oral submissions at the end of the submissions" regarding transfer or that the consequential question was "not permitted to be argued", which again is false, as noted above. We express our strong displeasure to such exhibition of recklessness and lack of rectitude shown in filing the application with such false and make believe statements in abundance. The deponent appears to be only a cat's paw and, therefore, as noted earlier we do not propose to take any action against him though the case warranted stringent action.

At the least the aforesaid aspects lead to the inevitable conclusion that the application is thoroughly misconceived, a sheer abuse of process of law and deserves to be dismissed with exemplary costs. But we refrain from imposing any cost.

Now, we shall deal with an application filed by accused Tulsibhai Bhikhabhai Tadvi. Mr. K.T.S. Tulsi, learned senior counsel appearing for him adopted the submissions of learned counsel for the State of Gujarat. Additionally, he submitted that when dealing with an appeal against acquittal this Court was required to consider the evidence which weighed with the Court's directing acquittal. Though we had restricted the scope of consideration to the rejection of the application under Sections 311 and 391 of the Code, certain observations have been made which would prejudice the accused persons. They did not get an opportunity to show that the evidence on record was otherwise. This plea is also without any substance and does not merit countenance.

When the primary consideration was the justifiability of rejecting the applications in terms of the Sections 311 and 391 of the Code, the question of considering the evidence on record did not arise. This Court considered the appeal taking note of those aspects. It was not necessary to record any finding in the appeals as to whether the respondents-accused in the appeals were to be convicted or acquitted. The appeals were allowed for the reasons that the investigation was vitiated. Tainted evidence was tendered and distorted trial was held and they would suffice to set aside the judgments. Therefore, the question of considering the evidence on record, except to the extent necessary for deciding the appeals did not arise. The observations made were in the context of the conduct of the public prosecutor, the prosecuting agency and the failure of the Courts below to take note of relevant aspects.

When the matter is taken up for trial afresh as directed by us it is obvious that the worth of the evidence has to be considered by the Court concerned on its own merits and in accordance with law to find out the real truth. That being so, the plea raised by Mr. Tulsi regarding the need for consideration of the evidence on record is really of no consequence and has no merit of acceptance.

The applications are dismissed.

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