145;HC miserably failed to maintain judicial balance and sobriety146;

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 complainants8217; 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 accorded 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 1738 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 cognisance 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 8216;8216;due to paucity of time8217;8217;. 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 HC in the present case.

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 argument 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 HC appears to have miserably failed to maintain the required judicial balance and sobriety in making unwarranted reference to personalities and their legitimate moves before competent courts 8212; 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 tats, meant as innuendos or serving 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 of 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, 8216;8216;media trial8217;8217; 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.

Concluded

PART I

PART II

PART III