ARIJITPASAYAT, J. - (1.) THE case at hand immediately brings into mind two stanzas (14 and 18) of Eighth Chapter of Manu Samhita dealing with role of witnesses. THEy read as follows: "Stanza 14 "Jatro dharmo hyadharmena Satyam jatranrutenacha Hanyate prekshyamananam Hatastrata sabhasadah" (Where in the presence of Judges "dharma" is overcome by "adharma" and "truth" by "unfounded falsehood", at that place they (the Judges) are destroyed by sin) Stanza 18 "Padodharmasya kartaram Padah sakshinomruchhati Padah sabhasadah sarban pado rajanmruchhati" (In the adharma flowing from wrong decision in a Court of law, one fourth each is attributed to the person committing the adharma, witness, the judges and the ruler".)
(2.) THIS case has its matrix in an appeal filed by Zahira Habibuliah hereinafter referred to as Zahira and Another namely, Teesta Setalvad' and another appeal filed by the State of Gujarat. In the appeals filed before this court, the basic focus was on the absence of an atmosphere conducive to fair trial. Zahira who was projected as the star witness made a grievance that she was intimidated, threatened and coerced to depart from the truth and to make statement in court which did not reflect the reality. The trial court on the basis of the statements made by the witnesses in court directed acquittal of the accused persons. Before the Gujarat High Court an application under Section 391 of the Code of Criminal Procedure, 1973 (in short the 'Code') highlighting the necessity for accepting additional evidence was filed. The foundation was the statement made by Zahira. The High Court did not accept the prayer and that is why the appeals came to be filed in this Court. By judgment dated 12th April, 2004 in Zahira Habibuliah Sheikh and Anr. v. State of Gujarat and Ors., the following directions were given: "75. Keeping in view the peculiar circumstances of the case, and the ample evidence on record, glaringly demonstrating subversion of justice delivery system no congeal and conducive atmosphere still prevailing, we direct that the retrial 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. 78. Since we have directed retrial 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. 79. 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." A review petition (Zahira' Habibulla H. Sheikh and Anr. v. State of Gujarat and Ore.) was filed by the State of Gujarat which was disposed of by order dated 7th May, 2004. While the trial was on before a court in Maharashtra pursuant to this Court's direction, it appears Zahira gave a press statement in the presence of some government officials that what she had stated before the trial court in Gujarat earlier was correct. A petition was filed before this Court alleging that Zahira's statement was nothing but contempt of this Court. At a press conference held on 3.11.2004 few days before the scheduled appearance of the witnesses in the trial, she had changed her version, disowned the statements made in this Court, and before various bodies like National Human Rights Commission. Considering the petition filed orders were passed on 10.1.2005 and subsequently on 21.2.2005, giving directions which read as follows: Order dated 10.1.2005 Having heard learned counsel for the parties, we are of the considered view that a detailed examination is necessary as to which version of Zahira Habibullah Sheikh is a truthful version. It is necessary to do so because various documents have been placed to show that she had made departure from her statements/ stands at different points of time. Allegations are made by Mr. P.N.Lekhi, learned senior counsel appearing for Zahira Habibullah Sheikh that she was being threatened, coerced, induced and/or lured by Teesta Setalvad. On the contrary, learned counsel appearing for Teesta Setalvad submits that she was being threatened, coerced, lured or induced by others to make statements or adopt stands contrary to what she had stated/ adopted earlier. In this delicate situation, the appropriate course would be to direct an inquiry to be conducted to arrive at the truth. We direct the Registrar General of this Court to conduct the inquiry and submit a report to this Court within three months. The Registrar General shall indicate in the report (a) if Zahira Habibullah Sheikh was in any manner threatened, coerced, induced and/or in any manner pressurised to depose/make statement(s) in any particular way, by any person or persons, and (b) if the answer to (a) is in the affirmation, who the person/persons is (or) are. For the purpose of inquiry, he may take assistance of a police officer of the rank of Inspector General of Police. Though a suggestion was given by Mr. For the purpose of inquiry, he may take assistance of a police officer of the rank of Inspector General of Police. Though a suggestion was given by Mr. Anil Diwan, learned senior counsel appearing on behalf of Ms. Teesta Setalvad that it should be an officer from the CBI, Mr. P.N.Lekhi, Mr. K.T.S Tulsi and Mr.Mukul Rohtagi, learned senior counsel, opposed the same In our view, an efficient, impartial and fair officer should be selected Therefore, we leave the choice to the Registrar General to nominate an officer of the Delhi Police, as noted above, of the rank of Inspector General of Police The inquiry shall be conducted on the basis of affidavits to be placed before the Registrar General and if he deems fit, he may examine any witness or witnesses to substantiate the contents of the affidavits We do not think it necessary to lay down any broad guidelines as to the modalities which the Registrar General will adopt He is free to adopt such modalities as he thinks necessary to arrive at the truth, and to submit the report for further consideration The affidavits and documents if any in support of the respective stands shall be filed before the Registrar General within a period of four weeks from today We make it clear that the pendency of the inquiry will not be a ground for seeking adjournment in the pending trial We have perused the letter of the trial court seeking extension of time The time is extended till 31 st of May, 2005 for completion of trial The matter shall be placed for consideration of the Report to be submitted, after three months Order dated 21.2.2005 Heard. The parties are granted four weeks' time to file the affidavits in terms of the earlier order dated 10.01.2005 We make it clear that we have not taken note of paragraph -8 of the application filed in Crl M P Nos 1908 -1911 of 2005 Criminal Miscellaneous Petition Nos 1908 -1911 of 2005 are accordingly disposed of Crl.MP. Nos.6658 -6661 of 2004 By order dated 10. 01.2005, the question as to whether Ms Zahira Habibullah Sheikh was in any manner induced to depose in a particular way, has been directed to be enquired into, we think it appropriate to direct her to file an affidavit indicating details of her bank accounts, advances, other deposits, amounts invested in movable or immovable properties and advances or security deposits, if any for the aforesaid purpose, along with the affidavit to be filed before the Registrar General of this Court She will also indicate the sources of the aforesaid deposits, advances and investments, as the case may be She shall also indicate the details of such deposits, advances and investments, if any, in respect of her family members and the source thereof The Registrar General and police officer nominated to be associated with enquiry are free to record statements of such family members and to make such further enquiries in the manner as deemed necessary and to ask the family members to file affidavits containing the details as noted above They shall indicate in the affidavits and the statements the sources of such deposits, advances and investments If the Registrar General and the police officer feel that any further enquiry as regards the sources is necessary, they shall be free to do it Since, we have extended the time for filing of affidavits by the parties, the enquiry report shall be submitted by the Registrar General within three months from today. Put up thereafter."
(3.) CONSIDERING the materials placed before the Inquiry Officer, he has submitted his report. Parties were permitted to file statements indicating their views so far as the report is concerned. The findings recorded by the Inquiry Officer with reference to various documents are essentially as follows: (1) The FIR dated 2.3.2002 (2) Memorandum dated 21.3.2002 before the Chairman, NHRC (3) Statements made on 11.5.2002 and 20.7.2002 before the concerned Citizen Tribunal and Nanavati Commission respectively (4) Statements dated 7.7.2003 of the Press Conference in Mumbai (5) Statement dated 11.7.2003 before NHRC (6) Plain copy of the affidavit dated 8.9.2003 attested by Notary submitted before this Court as additional document in SLP (Crl.) 3770/2003 (7) Statement recorded on 16.12.2003 at the Santa Cruz Police Station, Mumbai (8) Affidavit dated 3.11.2004 submitted before Collector, Vadodara (9) Affidavit dated 31.12.2004 submitted before this Court (10) Affidavits dated 20.3.2005, 12.4.2005 and 24.4.2005 before the Inquiry Officer. The Inquiry Officer has categorically recorded that Zahira had changed her stands at different stages and has departed from statements made before this Court. So far as the question whether she was threatened, coerced, lured, induced and/or in any manner pressurized to make statements in a particular way by any person or persons, it has been found that Zahira has not been able to explain the assets in her possession in spite of several opportunities having been granted. The Inquiry Officer had referred to transcript of conversations purported to have been made between a representative of "Tehlaka" and Shri Tushar Vyas, Shri Nisar Bapu and Shri Chandrakant Ramcharan Srivastava @ Bhattoo Srivastava, Shri Madhu Srivastava, and Shri Shailesh Patel. These persons were also given opportunity to explain their stands as the transcript of the Video Compact Disc produced by Tehlaka.com clearly indicated that money was paid to Zahira to change her stand. The Inquiry Officer has referred to the explanations offered by Zahira and her family members and found that she could not explain various receipts of money received by her and deposits made in their bank accounts. The amount involved was nearly rupees five lakhs. The explanation offered by Zahira and her family members was found unacceptable. The details indicated in the affidavit dated 24.4.2005 filed by Zahira explained the following details: "(1). Rs.65,000/ - Sale consideration of one house sold in the month of November, 2001 (2). Rs.40,000/ (Approx.) - Sale consideration of two -three wheelers sold to Scrap dealer (Kabadi) (3). Rs.30,000/ - Received from Insurance Company by mother on account of damages to motor cycle. (4). Rs.32,000/ - Sale consideration of scrap of machinery of Bakery (5). Rs.1,50,000/ - (Approx.) Sale consideration of scrap of Bakery (6). Rs. 50,000/ - Compensation for damages of house received from Government through cheque in favour of her mother (7). Rs.50,000/ - Received by mother as and Rs.40,000/ - compensation of her sister's death from the Government through cheque (8). Rs.493/ -P.M Deposited on monthly basis directly in Savings Bank Account No. 16669 with Syndicate Bank stands in the name of mother, as interest on Bond amount of Rs.50,000/ - received as compensation of her sister's death from Government. (9). Rs.55,000/ - Investment in a house in Ekt3 Nagar in the name of Ms. Zahira Sheikh (10). Rs.20,000 and Rs.25,000/ - Investment in two small plots of 15x30ft. each by her brother Nasibullah (11). Rs.45,000/ - Deposited by her in the Bank Account No. 11348 with Bank of Baroda Nawapura Branch at Vadodara (12). Rs.52,045/ - Deposits in a joint account No. 16754 with her brother, Nasibullah with Syndicate Bank, Goddev Branch, Bhayander (13). Rs. 1,37,384/ - Deposits in her brother's account No. 16667 with Syndicate Bank, Goddev Branch, Bhayander (14). Rs.1,42,256/ - Deposits in her mother's account No.16669 with Syndicate Bank, Goddev Branch, Bhayander." The Inquiry Officer repeatedly asked Zahira and her brother H. Nafitullah about the names and addresses of purchasers of scrap and further details which were not supplied.;