Holding

The Court held that the SIT shall continue to function until the completion of all trials, that the stay on the trials is vacated, and that comprehensive witness‑protection and fair‑trial measures as directed are mandatory.

Summary

The Supreme Court entertained petitions filed by the National Human Rights Commission seeking transfer of Gujarat riot trials and further investigation. The Court had earlier ordered the Gujarat Government to constitute a five‑member Special Investigation Team (SIT) to reinvestigate nine cases and submit a report. After reviewing the SIT’s consolidated report, which showed extensive new investigations, additional accused and numerous witnesses examined, the Court directed that the SIT continue its work until the completion of all trials and may pursue further inquiry under Section 173(8) of the CrPC. The Court emphasized the necessity of a fair trial, ordering the appointment of public prosecutors in consultation with the SIT, the establishment of fast‑track courts, and comprehensive witness‑protection measures including safe passage, residence security and relocation. It also directed filing of supplementary charge‑sheets, vacated the earlier stay on the trials, and mandated periodic reporting by the SIT. Consequently, the petitions were disposed with detailed directions to ensure speedy, secure and impartial justice.

Issues considered

Whether the Special Investigation Team should continue to function and conduct further investigation under Section 173(8) of the CrPC.
How to ensure a fair trial in the Gujarat riot cases, including appointment of public prosecutors and designation of fast‑track courts.
Whether the stay on the ongoing trials should be vacated and the trials resumed.
Whether supplementary charge‑sheets should be filed based on the SIT’s findings.
What witness‑protection measures are appropriate in communal violence cases.

Legislation cited

Code of Criminal Procedure, 1973s. 173(8)

Subjects

witness protectionfair trialspecial investigation teamGujarat riotscriminal procedurepublic prosecutorfast‑track courtsvictim rightshuman rights commissionsection 173(8) CrPC

Judgment

[2009] 7 S.C.R. 236

A NATIONAL HUMAN RIGHTS COMMISSION
V.
STATE OF GUJARAT
Writ Petition (Crl.) No. 109 of 2003
MAY 01, 2009
B
[DR. ARl.JIT PASAYAT, P. SATHASIVAM AND AFTAB
ALAM, JJ.]
Investigation - Gujarat riot cases - Petitions before
'
Supreme Court seeking transfer of some cases and
C reinvestigation/further investigation in some cases - Direction
of court to State Government to constitute Special Investigation
Team (SIT) to undertake inquiry/investigation in nine cases -
submission of report by SIT showing its progress in the cases
- Held : The report of SIT shows the thoroughness with which
D it has worked - SIT to continue to function until the completion
of trial in all the cases - Directions issued to SIT to ensure fair
trial, protection to witnesses, able assistance to court by
competent public prosecutor and speedy trial of cases - Role
of SIT specified.
E Administration of Justice - Criminal administration of
justice - Protection to witnesses.
Present petitions were filed seeking transfer of some
of the ongoing trial and reinvestigation/further
F investigation into various incidents of Gujarat riot cases.
Initially, this Court stayed the trials. Later, the court
directed Gujarat Government to constitute a Special
Investigation Team S(ID to undertake inquiry/investigation
including further investigation in nine cases and directed
SIT to submit its report within a particular time. State
G Government constituted SIT. Consolidated report was
filed by SIT before this court.
Considering the Report of SIT and issuing further
directions, the Court
H 236
NATIONAL HUMAN RIGHTS COMMISSION V. 237
STATE OF GUJARAT

HELD: 1. Due to the efforts of SIT, persons who were A
not earlier arrayed as accused have now been arrayed as
accused. From the details as indicated in the report 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 B
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 parti-cularly, under c
Section 173(8) Cr.P.C. [Para 4] [246-G-H; 247-A]
2.1 Witnesses form the key ingredient in a criminal
trial 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 D
complaints that the actual perpetrators of heinous crimes
during the communal violence can be brought to book.
[Para 8] [255-E-F]
2.2 It would not be proper to give any general
',
directions for witness protection. It would primarily E
depend upon the fact situation of each case. Practical
difficulties in effectively implementing any witness
"' protection scheme cannot be los~ sight of. Their
protection is necessary so that there is no miscarriage of
justice; but protection is also necessary to restore in them, F
a sense of human dignity. [Paras 22,23] [259-E; 259-H]
2.3 Since the protection of a witness is of paramount
importance, it is imperative that if and when any witness
seeks protection so that he or she can depose freely in
G
court, the same has to be provided. It is therefore directed
'1
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
H
238 SUPREME COURT REPORTS [2009) 7 S.C.R.

A 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. [Para 42] [266-F-G]
8 2.4 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,
following steps shall be taken: (a) Ensuring safe passage
•
for the witnesses to and from the court precincts; (b)
c 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. [Para 46(ix)] [270-D-E]
2.5 The SIT shall be the nodal agency to decide as to •
D
which witnesses require protection and the kind of
witness protection that is to be made available to such
witness. In the case of the first and the second kind of
witness protection, the Chairman, SIT could, in appro-
priate cases, decide which witnesses require security of
E the paramilitary forces and upon his request same shall
be made available by providing necessary security
facilities. [Paras 46(x) & (xi)] [270-F-G]
2.6 In the third kind of a situation, where the
..
F Chairman, SIT is satisfied that the witness requires to be
rel_ocated 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
G
are necessary to relocate the witnesses. [Para 46(xii)]
[270-H; 271-A] ~

Zahira Habibul/ah Sheikh (5) and Anr. v. State of Gujarat
and Ors. (2006) 3 SCC 374; Zahira v. State of Gujarat (2004)
H 4 sec 158 - referred to
NATIONAL HUMAN RIGHTS COMMISSION V 239
STATE OF GUJARAT
+
1
14 h Report of Law Commission; National Police A
Commission Report (1980); 15ih Report of the Law
1 1
Commission, 1996; 178 h Report of Law Commission; 198 h
Report of the Law Commission of India - referred to.
3. In order to ensure that the trials are conducted in a
fair manner and within the realm of protecting, the rights B
• 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 c
of persons into the court room. [Para 27] r260-F-G]
4.1 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
D
appoint public prosecutors in. each of the cases in
consultation with the SIT which opinion shall be final and
binding on the State Government. [Para 25] [260-C-D]
4.2 If necessary and so considered appropriate, SIT
may nominate officers of SIT to assist the public E
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.
[Para 46(vi)] (269-F-G] F
S.8. Shahane and Ors. v. State of Maharashtra and Anr.
(1995) suppl. (3) sec 37; UPSC v. s. Papiah (1997) 7 sec
614;Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968 SC
117); JK International v. State Government of NTC (2001) 3
1 sec 462 - referred to G

5.1 In riot cases and cases involving communal
factors the trials should be held expeditiously. Therefore,
Chief Justice of Gujarat High Court is requested to
designate court(s) in each district where the trial of the
H
240 SUPREME COURT REPORTS [2009]7 S.C.R. '

).

A 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.
B These cases shall be taken up by the Designated Court
on a day-to-day basis and efforts shall be made to
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
c report regarding the constitution of the courts in terms of
the directions to be given by the Chief Justice of the High
Court within three months. [Para 42) [266-G-H; 267-A-C)
5.2 The Chairman of the SIT shall keep track of the
progress of the trials in order to ensure that they are •
D proceeding smoothly and shall submit quarterly reports
to this court in regard to the smooth and satisfactory
progress of the trials. [Para 46(vii)] [269-G-H; 270-A]
6. The stay on the conduct of the trials are vacated in
order to enable the trials to continue. In a number of cases
E bail had been granted by the High Court/Sessions Court
t--
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. [Para 46(viii)) [270-A-B]
F
7. 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 also discharge such functions as
have been cast upon them by the present order. [Para
G
46(xiv)) [271-8-C] '
8. If there are any matters on which directions are
considered necessary (including by way of change of
public prosecutors or witness protection), the Chairman
H of the SIT may (either directly or through the Amicus ·
NATIONAL HUMAN RIGHTS COMMISSION V. 241
STATE OF GUJARAT

Curiae) move this Court for appropriate directions. A
Periodic three monthly reports shall be submitted by the
SIT to this Court in sealed covers. [Para 46(xv) & (bxvii)]
[271-C-E]
9. Supplementary charge-sheets shall be filed in each
of these cases as the SIT has found further material and/ 8
or has identified other accused against whom charges
are now to be brought. [Para 46(i)] [268-C]
Case Law Reference

_.,
' (2006) 3 sec 37 4 Referred to Para 7 c
(2004) 4 sec 158 Referred to Para 10
(1995) Suppl. (3) sec 37 Referred to Para 29
··• (1997) 1 sec 614 Referred to Para 39
D
(AIR 1968 SC 117); Referred to Para 40
c2001) 3 sec 462 Referred to Para 41
CRIMINAL ORIGINAL JURISDICTION: Writ Petiton (Crl.)
No. 109 of 2003 E
From the Judgement and Order dated 05.02.2003 of the
' Hon'ble High Court of Gujarat atAhmedabad in Special Criminal
Application No. 700 of 2002.
WITH F
Crl. M.P. No.10719of2003

- Crl. M.P. No. 7078 of 2003
Crl. M.P. No. 7827 of 2003, 8193 of 2003 & 8194 of 2003
Crl. M.P. No.11668 of2003 G

Crl. M.P. No.11689 of2003
Crl. M.P. No. 4782 of 2003
Crl. M.P. No. 3741 of 2004 & 3742 of 2004
H
242 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Crl. M.P. No. 6864 of 2004
Crl. M.P. No. 9236 of 2005
Crl. M.P. No. 6767 of 2006
Crl. M.P. No. 7824 of 2007
B
W.P. (Crl.) No. D.17953 of 2003
TP (Crl.) Nos. 194-202 and 326-329 of 2003
SLP (Crl.) No. 7951 of 2002
C SLP (Crl.) No. 4409 of 2003
SLP(Cri.) No.5309 of 2003
WP(Crl.) No. 216 of 2003
TP(Crl.) No. 66-72 of 2004
D
TP(Crl.) No. 43 of 2004
WP(Crl.) No. 118 of 2003
TP(Crl.) Nos. 233-234 of 2004
E WP (Crl.) Nos. 37-52 of 2002
WP (Crl.) No. 284 of 2003
Crl. M.P. No. 6767 of 2006
Crl. M.P. Nos. 3741-3742 of 2004
F
WP(Crl.) No. 109 of 2003
Crl. M.P. No. 4485 of 2006
SLP (Crl.) No. 3770 of 2003
G Harish N. Salve, (A.C.), Meenakshi Grover, B.V. Desai
(A.C.), Rahul Gupta, Reema Sharma, Sanjay Parekh. Shilpa
Gupta, Gopal, Urned Singh Gulia-in-person, Amit Singh
Chauhan, Fjaz Maqbool, Huzefa Ahmadi, Aparna Bhat, Anand
Grover. Lalit Mohini, Naveen R. Nath, Shobha, with him for the
H Appellant.
NATIONAL HUMAN RIGHTS COMMISSION V. 243
STATE OF GUJARAT
-t
Gopal Subramanium, ASG, Manjit Singh, AAG, Arun Jaitley, A
Mukul Rohtagi, R. Dash, Rajiv Kumar Dubey. M.S. Ganesh, H.
Wahi, Saurav Kirpal, Pinky, Jesal, R. Basant, D.D. Kamth, K.N.
Madhusoodhan, R. Satish, Dr. NatisA. Siddiqui, Anil Shrivastav,
Ritu Raj. Sayidmajookbakki, A. Mariarputham, Aruna Mathur (for
Mis. Arputham Aruna & Co.), Anita Shenoy, S. Udaya Kumar B
.. t
Sagar, Bina Madhavan, Tarun Satija (for Mis. Lawyer's Knit &
Co.), Manish Kumar, Ansar Ahmad Chaudhary, Manoj Dwivedi,
G. Venkatshwar, V.S. Pragasam, S.J. Aristotle, Prabu ·Rama
Subramanian, Esward Belho, Rituraj Biswas, P. Athuimei R.
Naga, Manjit Singh, T.V. George, K-11. Nobin Singh, Varuna c
Bhandari Gugnani, Rajesh Singh, S. Was!m, A. Qadri, Ar.ii
Katiyar, D.S. Mahra, Aparna Bhat, K. Sheshchary, Madhulika
Mohta, Atul Jha, D.K. Sinha, Ajay Pal, Gopal Singh, Shweta
Singh, Manish Kumar, Sangita Singh, Anand Grover, Lalit Mohini
Bhat, Naveen R. Nath, C.D. Singh, Riku Sarma (for Mis. D
Corporate Law Group), Tara Chandra Sharma, Neelam Sharma,
K.R. Sasiprabhu, A. Subhashini, J.S. Attri, Bimal Roy Jad, Ravi
Prakash Mehrotra, Radha Shyam Jena, P.V. Dinesh, Gopal
Prasad, Gautam Godara, R.K.Adsure, Ranjan Mukherjee, Amit
Kr. Chawla, Sanjay R. Hedge, P. Parmeswaran, And. Rao, E
Sameer Parekh & Co., S.N. Bhat, with them forthe Respondent.

"' The Judge~ent of the Court was delivered by
DR. ARIJIT PASAYAT, J.
F
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
G
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
H
244 SUPREME COURT REPORTS [2009) 7 S.C.R

~
A constitution the SIT has made considerable progress in respect
of each of the nine cases and the current status is as follows:
1: Godhra Railway Police Station Cr. No 09/02
Applications received 63
B Witnesses examined 183(125 old & 61 new)
Number arrested
•
Charge sheets filed

c Stage of investigation Completed
2 : Khambholaj Police Station Cr. No 23/02
Applications received 17
Witnesses examined 85(30 old & 55 new)
D
Number arrested Court is requested to
issue process against
16 accused
Charge sheets filed Amended separate
E charge sheet-1
Stage of investigation Completed
....
3: Khambholaj Police Station Cr. No 27/02 •
Applications received 17
F
Witnesses examined 39
Number arrested
Charge sheets filed
G Stage of investigation Completed
~
4: Naroda Police Station Cr. No 98/02
Applications received 06

H Witnesses examined 450
NATIONAL HUMAN RIGHTS. COMMISSION V. 245
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]
., Number arrested 20 A
Chargesheets filed 02
Stage of investigation Nearly complete
5: Naroda Police Station Cr. No 100/02
B
Applications received 88
.,. Witnesses examined : 341
Number arrested 17
Chargesheets filed 01 c
Stage of investigation Nearly complete
6. Meghaninagar Police Station Cr. No 67/02
Applications received 59 D
Witnesses examined 227
Number arrested 18
Chargesheets filed 03
E
Stage of investigation. Nearly complete
7: Visnagar Police Station Cr. No 60/02
Applications. ,received 05
Witnesses examined 42 F
Number arrested 03
Chargesheets filed 01
Stage of investigation Nearly complete
G
8. Vijapur Police Station Cr.No.46/02
Applications received 13
Witnesses· examined 39
H
246 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Number arrested 21
Chargesheets filed 02
Stage of investigation Completed
9. Prantij Police Station Cr.No.100/02
B
Applications received 10
..,
Witnesses examined 24 (14 old and 10
new)

c Number arrested
Chargesheets filed
Stage of investigation Completed
2. In separate sealed covers the IO's report in each case
D 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
ShriAshish Bhatia. The lastthree are officers of the Indian Police
Service from the Gujarat cadre.
E
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.
F
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
G 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
H cases and if any further inquiry/investigation is to be done the
NATIONAL HUMAN RIGHTS COMMISSION v.· 247
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]

... same can be done as provided in law, more particularly, under A
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.
B
(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. c
(3} Able assistance to court by competent public
prosecutors.
(4) Further role of SIT.
.. D
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 E
not need any reiteration. In Zahira Habibul/ah 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 F
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 G
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 H
248 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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.)
)()( )()( )()(
B
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 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
c 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
D get away." Jonathan Swift, in his "Essay on the Faculties
of the Minci" said in similar lines: "Laws are like cobwebs,
which may catch small flies, but let wasps and hornets
break through."
)()( )()( )()(
E
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
F 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
G
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-
H Chancellor Knight Bruce said (ER p.957):
NATIONAL HUMAN RIGHTS COMMISSION V. 249
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]
.., "The discovery and vindication and establishment of truth A
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 means, not B
every channel is or ought to be open to them. The practical
inefficacy of torture is not, I suppose, the most weighty
-I
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." c
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 D
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 E
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 F
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,
G
that it becomes necessary to 'reconcile the cases', as it
j
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-
H
250 SUPREME COURT REPORTS [2009] 7 S.C.R.

A settled legal doctrine embodies the work of many minds,
and bas been tested in form as well as substance by
trained critics whose practical interest is to resist it at
every step."

33. The principle of fair trial now informs and energises
B 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
c 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
D
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
E 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."
F 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
G 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
H non grata. The courts have always been considered to
NATIONAL HUMAN RIGHTS COMMISSION V. 251
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]

have an overriding duty to maintain public confidence in A
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 B
of law in the future as in the case before it. If a criminal
court is to 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 c
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
0
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 E
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 F
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 G
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 H
252 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B 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.
c 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
D 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
E 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.
F 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
G 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
H
NATIONAL HUMAN RIGHTS COMMISSION V. 253
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.)

technical. observance of the frame, and forms of law, but A
also in recognition and just application of its principles in
substance, to find out the truth and prevent miscarriage of
justice. 'S

40. "Witnesses" as Bentham said: are the eyes and ears
of justice. Hence, the importance and primacy of the quality B
of trial process. If the witness himself is incapacitated
1 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,
._...j
like the witness being not in a position for reasons beyond c
control to speak the truth in the 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 D
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 E
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, F
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

-•
' 1
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
G

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
H
254 SUPREME COURT REPORTS [2009] 7 S.C.R.

,..
A 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)
B "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 'r

account of the defect; to do so would tantamount to playing
-cc into the hands of the investigating officer if the investigation
is designedly defective. (See Kamel 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
D
required to be examined dehors such omissions to find
out whether the said evidence is reliable or not, the
contaminated 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
,E
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
w
F 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. Ba/winder Singh."
41. The State has a definite role to play in protecting the
...._
G 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
H the witness could safely depose the truth without any fear
NATIONAL HUMAN RIGHTS COMMISSION V. 255
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]

of being haunted by those against whom he had deposed. A
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 requiremerit
because of any extraneous factors like caste, creed, B
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
j this with regard to the criticism levelled against the State

..\.. of Gujarat. Some legislative enactments like the Terrorist c
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 beGome ··
the order of the day. If ultimately the truth is to be arrived
0
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."
8. It is an established fact that witnesses form the key E
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 F
of heinous crimes during the communal violence can be brought
to book. -
1
9. Vide an order dated 8 h August 2003 in the matter of
National Human Rights Commission v. State of Gujarat, this
Court regretted that "no law has yet been erfacted, not even a G
scheme has been framed by the Union of India or by the State
..\
Government for giving protection to the witnesses."
J 0. Further, in the case of Zahira v. State of.Gujarat (2004
. (4) SCC 158), while transferring what is known as .the 'Best H
256 SUPREME COURT REPORTS [2009] 7 S. C.R.

A 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.
B 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." "
11. The Law Commission in its 14th Report (1958) referred
c to 'witness-protection', but that was in a limited sense. That "'
j..
related to proper arrangements being pro-.1ided in the
Courthouse, the scales of travelling allowance, their daily
allowance etc.
12. The National Police Commission Report (1980) again
D
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.
E 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
F 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.
G 1
15. The Law Commission of India's 198 h 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"
H
NATIONAL HUMAN RIGHTS COMMISSION V. 257
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]
....
...J 16. Under the English law, threatening a witness from A
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 B
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
-r 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 c
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 Security Programme. The Witness D
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 E
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 F
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 G
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 H
258 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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 assistance in law
enforcement matters" [Section 3]. Protection given to a witness
may include relocation, accommodation and change of identity
B 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
c [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
D 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,
E 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. ...
20. The Witness Protection Act, 1998 of South Africa
F 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].
G 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.
H The application is then considered by a Witness Protection
NATIONAL HUMAN RIGHTS COMMISSION V 259
STATE OF GUJARAT [DR ARIJIT PASAYAT, J]

Officer who prepares a report, which is then submitted to the A
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 1OJ
for deciding whether a person should be placed under protection
or not: B
(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 C
evidence.
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 D
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. Praetical difficulties in effectively
implementing any witness protection scheme cannot be lost E
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 F
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 G -
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 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. H
.· 260 SUPREME COURT REPORTS [2009] 7 S.C.R..

A 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,
B 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
c 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
D with the SIT which opinion shall be final and binding on the State
Government.
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
E 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.
F 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
G 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.
H
NATIONAL HUMAN RIGHTS COMMISSION V. 261
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]
-..J
29. This Court in S.B. Shahane and Ors. v. State of A
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 B
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 c
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 D
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 E
is common for those who hold the office of Commonwealth or
State OPP later to be appointed to a high judicial office. In
r 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 F
of criminal cases. Only British Columbia, Nova Scotia and
Quebec (a-dvil '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
G
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
H
262 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
8 proposed legislation. The OPP is superintended by the
Secretary for Justice, who is also accountable for the decisions
of the OPP. The Director of Public Prosecutions in the Republic
of Ireland has been responsible for prosecution, in the name of
the People, of all indictable criminal offences in the Republic of
c 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 OPP 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
0
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
E 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
F was first created in 1880 as part of the Home Office, and had
its own department from 1908. The OPP 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 OPP as its head. He/she
G is appointed by the Attorney General for England and Wales. In
Northern Ireland a similar situation existed, and the OPP now I •
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
H
NATIONAL HUMAN RIGHTS COMMISSION V. 263
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]

this recommendation was not included in the Code then. Again A
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 B

~ of Criminal Procedure Amendment Bill 1994. Recom-
mendations related to the structure of a Directorate of
...J
" 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 c
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
.4..
mainly, Delhi, Andhra Pradesh, Bihar, Goa, Himachal Pradesh, D
Karnataka, Kerala, Madhya Pradesh, Orissa, Tamil Nadu and
Uttaranchal, established a Directorate of Prosecution.
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. E

"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. F
(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. G
,p;·
' (3) The Head of t~e 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.
H
264 SUPREME COURT REPORTS [2009] 7 S.C.R.

A (4) Every Deputy Director of Prosecution shall be
subordinate to the Director of Prosecution.
(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
B 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
c 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.
D
(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
E 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.
F 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
G 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
H
NATIONAL HUMAN RIGHTS COMMISSION V. 265
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]

mechanisms of justice and to prompt redress, as provided A
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 B
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 c
be made in consultation with SIT, whose opinion would be
binding on the state government.
37. United Nations Declaration of Basic Principles of
.. Justice for Victims of Crime and Abuse of Power, adopted b~
the General Assembly through a resolution 40/34 of 29 D
•· 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 E
presented and considered at appropriate stages of the
proceedings where their personal interests are affected,
f· without prejudice to the accused and consistent with the
relevant national criminal justice system".
38. In the United States of America, the existing Crime F
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".
39. This Court had held in U.PS.C. v. S. Papiah (1997) 7
G
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 H
266 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B 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 '.'4

there is no sufficient ground for proceeding against some
c 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 ther
consideration of this report."
40. This position was illuminatingly stated in Abhinandan
D 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
E the police is not altogether wiped out of the scenario of
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
F protection so that he or she can depose freely in court, the same
has to be provided. It is therefore directed that ifa 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
G 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
H factors the trials should be held expeditiously. Therefore, we
NATIONAL HUMAN RIGHTS COMMISSION V. 267
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]

request the Hon'ble Chief Justice of Gujarat· High Court to~ A
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 B
\ particular district. Needless to say that these cases shall be
I. taken up by the Designated Court on a day-to-day basis and
efforts shall be made to complete the trial with utmost expedition.
The SIT shall furnish periodic reports ifthere is any further inquiry/
investigation. The State of Gujarat shall also file a status report c
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 D
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 E
1
order was then made on 26 h 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
F
(a) Crime No. 9 102
(b) Crime No. 100/02
(c} Crime No. 23/02
(d) Crime No. 98/02 G
(e) Crime No. 46/02
(f) Crime No. 67/02 ·
(g) Crime No. 60/02
H
268 SUPREME COURT REPORTS [2009] 7 S.C.R.

A (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
B 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:

c (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.
(ii) the conduct of the trials has to be resumed on a day-
D 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.
E (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 Garn)
F ii) Ahmedabad (Gulbarg).
iii) Mehsana (for two cases).
iv) Saabarkantha opened(British National case)

G 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
H
NATIONAL HUMAN RIGHTS COMMISSION V. 269
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.]
_._
these trials can be concluded as soon as possible and in A
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 B
has, in its suggestions, stated that it has no objection to
' constitution of such "fast track courts", and has also
j,..I suggested that this may be left to Hon'ble the Chief Justice
of the High Court.
(v) Experienced lawyers familiar with the conduct of c
criminal trial:; are to be appoi:ited as Public P~osecutors.
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 D
·•· 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 thF1t 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 E
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, who shall take appropriate
action in light of the recommendation by the SIT. F
(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 G
-1, assistance is made available to such Public Prosecutor.
r•
(vii) The Chairman of- the SIT shall keep track of the
progress of the trials in order to ensur~ that they are
proceeding smoothly and shall submit quarterly reports to
H
270 SUPREME COURT REPORTS [2009) 7 S.C.R.

A ...,.._
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
B 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.

c (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
D
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
E
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
F is to be made available to such witness.
(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 ~ame shall be made available
,_ ,
G 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
. '1
of Gujarat, it would be for the Union of India to make
appropriate arrangements fo.r the relocation of such
H witness. The Chairman, SIT shall send an appropriate
,,
-r
'
"
-1. NATIONAL HUMAN RIGHTS COMMISSION V. 271
..,
STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.)
)._
request for this purpose to the Home Secretary, Union of A
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.
B
(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
..J SIT would also discharge such functions as have been
cast upon them by the present order. c
(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 . D
(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. E

(xvii) Periodic three monthly reports shall be submitted by
")'. the SIT to this Court in sealed covers.
47. List after four months.

K.K.T. Write Petition adjourned

' '