The Supreme Court of India, on 8th of March, 2006 sentenced Zaheera Sheikh, a witness, cum complainant cum aggrieved, cum turned hostile, for giving, a flip flop and contrary, evidence on different occasions, to a one year simple imprisonment term. She was also fined Rs 50,000 on charges of perjury. It was done on the basis of a report, submitted by a high powered committee headed by Registrar-General of the Supreme Court. The Supreme Court had on January 10,2005 ordered the committee to inquire into the whole issue The committee in its report called Zahira Sheikh a “self-condemned liar”. The Court also observed that “ this is a classic example of a case where evidences were tampered with and witnesses won over.” The Bench also added that; ‘ We find, that people have started feeling criminal trials are like cobweb where small flies are getting caught and big people are dashing through”.
In a severe indictment of Zaheera, whose conduct was disapproved by the court, the Bench also directed, the income tax authorities, to forthwith; attach her property and bank accounts. In the event Zaheera fails, to deposit the fine, the court directed a one year prison term in default.

Although the court order, was in the background of the Best Bakery case, its import in the recent acquittal of nine persons (including two sons of high-profile politicians) in Jessica Lal case, on almost similar grounds cannot be ignored. The Supreme Court added that “The court should not be a tape recording machine but play a participatory role.” Explaining further, it said, in such circumstances “the courts have an over riding duty to maintain public confidence and uphold the majesty of court.’

Observing that a defective investigation has an adverse bearing in the trial of the case, the judgment further stressed on the role to be played by the investigating officer and the witnesses in ensuring a fair trial. When witnesses turn hostile, the court observed, the courts have a bounden duty; to investigate the truth. It will be recalled that a trial court in Mumbai on February 24, 2005 had sentenced nine persons to life out of the 17 accused charged with torching the Best Bakery which killed 14 persons. The Mumbai court, had even sent notices to Zaheera and her family seeking as to why charges of perjury should not be initiated against them, for testifying falsely before court. The volte-face by Zaheera had caused a high degree of embarrassment to the social activists, who had espoused her cause for justice before the Supreme court.

Zahira a key witness in the Best Bakery case, who turned hostile, and is a classic example, how the criminal justice system is turned topsy turvey, by the eye witnesses.

The Chief Justice of India, while addressing a conference of Chief Ministers and Chief Justices of the High Courts on 11th March, 2006 said that “The country’s justice delivery system appears to be on the verge of the collapse…Not much has been done for the improvement of investigative and prosecution machinery. Significant suggestions, for separation of the investigative wing from the law and order duties and changes in the rules of evidence still lie unattended… The public outrage, over the failure of the criminal justice system, in some high profile cases must shake us all up, into the realisation, that something needs to be urgently done to revamp the whole process, though steering clear of knee-jerk reactions, remembering that law is a serious business”.

The Prime Minister, who is in the best position to know, the state of affairs in the country was still not sure as to what can and should be done, when he said in the same conference; “The manner, in which some cases are being prosecuted, particularly, when cases fail, because witnesses turn hostile, or change their evidence is causing concern to an ever increasing sections of society… There is a need for all of us, to reflect, whether the existing procedures, are adequate and fool proof, whether we are using all available provisions in law, so that the justice system is seen to deliver justice”.

The truth is that the entire criminal justice is based on the premise that people are willing to state truth, in a court of law under oath, without bothering about their own safety or personal expenditure to be incurred or the time to be spent.

But in reality, it does not happen. Nobody wants to get exposed, to any risks by the hoodlum, who might themselves be the accused or might have been hired by the accused to scare away the witnesses. The stark reality is, the Government could not find any takers for the gangster Dawood Ibrahim’s property, when it was put to auction in Mumbai. Even now, the truth is that though an eye witness is crucial to prove any case in any court of law, the system neither bothers about his security nor about his financial expenditure, which such people have to incur, in doing their duties as a citizen.

Since nobody commits perjury by making one statement to the police, another one to the Court, and the timing between the two recording could be months and years altogether, the best course adopted by the witnesses is to say that they do not know anything, as happened in the case of model killed in 1999 in Delhi. Hundreds of people were present, but except for a handful, all others presumably suffered from amnesia. Even those few, who were witnesses as per the police investigations, pleaded total memory loss or forgetfulness or backed out or changed their stand and evidence in the court.

Expressing serious concern over the acquittals of the accused in a number of criminal cases, due to the trend of witnesses turning hostile, the Law Commission had suggested the enactment of a comprehensive legislation for the protection of witnesses and to ensure that their evidence collected at the stage of investigation is not allowed to be destroyed later.

The Commission has also urged, that special procedures should be introduced, into the criminal law, to balance the need for anonymity for witnesses, on the one hand, and the rights of the accused, on the other. It also added, that the Evidence Act, requires to be looked into afresh to provide for the protection of a witness. Justice Malimath committee, in its report, had also highlighted, the need, to ensure protection of witnesses, without affecting the right of the accused to cross-examine them. It said, “The witness has no protection whatsoever and there is no such law”. Yet protection of witnesses is considered crucial in most countries in the West and they have comprehensive laws and programmes for the same.

Prodded by the media, there appears to be a half hearted movement, by the Government, to only tinker with the law, so that the statements of the witnesses could be got recorded by a Magistrate. This itself is not enough and much more is called for. The Government should frame a comprehensive law to preserve and protect, both victims’ and witnesses’ rights,. The law should ensure that they are treated with fairness, respect, and dignity, and protected from intimidation, harassment, or abuse. In important cases or where victims or witnesses feel that they would be exposed to harassment after the case, is over, and the accused is released after serving his sentence, they should be provided protection for a suitable period. It should be provided, for under the law. Law should take care for recording of evidence of key witnesses, immediately on filing the charge-sheet, while the rest of the trial can go on. Our present criminal justice system is concerned, only in punishing a criminal with a jail sentence and in rarest of the rate cases, death sentence. But it does not provide for compensating the victims. Crime and compensation should be interlinked and any financial loss caused should be made good by the accused either from his own property or compensating the victim from his own earning. At present the criminals get away. It is time to send a message that law is not a toothless tiger and it needs to be respected by all and sundry. The present position in our country can be best described in the words of Pierre Joseph Proudhon, quoted in The Match! ; ‘Laws: We know what they are, and what they are worth! They are spider webs for the rich and mighty, steel chains for the poor and weak, fishing nets in the hands of the government.

Joginder Singh, IPS (Retd.) Former Director, CBI, India, 123-124, Nav Sansad Vihar, CGHS, Sector 22, Plot Number 4, Dwarka, New Delhi 110075 Telephone; 28052742, Number and Address, in Punjab Jalalabad (west) District; Ferozpore, Pin code; 152024, Telephone; 01638 250072, Mobile 98107 55087, Punjab Mobile; 94176 93573
Email; jogindersinghfdips@rediffmail.com

Joginder Singh

The views and facts stated above are entirely the responsibility of the author and do not reflect the views of this Association in any manner.