ZAHIRA HABIBULLAH SHEIKH AND ANR. ETC.versusSTATE OF GUJARAT AND ORS. ETC.

         ZAHIRA HABIBULLAH SHEIKH AND ANR. ETC.                            A
                                    v.
               STATE OF GUJARAT AND ORS. ETC.

                             MAY 7, 2004

                                                                           B
        [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

     Constitution of India, 1950; Articles 136, 137 r/w Order XL of the
Supreme Court Rules, 1966 :

      Review Petitions for modification ef directions given by Supreme C
Court for fresh trial outside the State-Held: Review oforder in a criminal
proceeding limited to errors apparent on the face ofrecord-Review ought
to be resorted to with great sense of responsibility and should not be used
as a device for ventilating remorselessness-Supreme Court has ample
jurisdiction to fu: the place/court for fresh trial-If basis of grievance D
sufficiently disclosed and reliefsought is incidental/ancillary to main relief
 then no formal application would be required even though it may be
relevant for purposes of determining the Court.fee-Supreme Court had
given the directions in exercise of its plenary powers as an Appellate Court
 and keeping into consideration the general principles governing claims for E
 transfer and ensuring real/substantial/due and proper justice-Petition is
 thoroughly misconceived, asheer abuse ofprocess oflaw-Hence, dismissed.

      Directions by Supreme Court for fresh trial outside the State-
Whether creates negative impact upon the functioning ofthe State judiciary- F
Held : No, since observation criticism in the judgment as to the manner
of disposal by the Courts below has to be read with objectivity and not out
of context.

     Code of Criminal Procedure, 1973; Ss. 311 and 391 :
                                                                           G
     Evidence on record-Consideration of-Held : Since appeals were
allowed on the ground that the investigation was vitiated, it was not
nece1sary to record any finding as to the conviction/acquittal of accused-
Hence, the question of consideration of evidence on record except to the
extent necessary for deciding the appeals, did not arise.                  H
                                   571
    572                SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.
A         Respondent-State of Gujarat and one of the accused persons filed
    applications for modification of the Judgment and Order dated 12.4.2004
    of this Court whereby the Court directed fresh trial of the case outside
    the State of Gujarat.

B        It was contended by the respondent-State and the accused-
    applicant that the direction for fresh trial of the case outside the State
    was not in accordance with law; and that in an appeal against acquittal,
    this Court was required to consider the evidence which would weighed
    with the Court acquitting the accused.
c         Dismissing the applications, the Court

          HELD : 1.1. The petition is in essence and substance seeking for
    a review under the guise of making an application for direction and
D   modification, apparently petitioner being fully aware of the normal
    procedure that such applications for review are not, unless Court
    directs, listed for open hearing in Court, at the initial stage at least,
    before orderine nnticr to the other side and could be summarily
    rejected, if found tu 1,,. uf no prima facie merit. The move adopted itself
    is unjustified, and could not be countenanced also either by way of
E   review or in the form the preser1t application as well. The nature of
    relief sought, and the reasons assigned are such that even under the
    pretext of filing a review petition such an exercise cannot be undertaken,
    virtually for re-hearing and alteration of the judgment because it is not
    to the liking of the party, when there is no apparent error on record
F   whatsoever to call for even a review. A review application can be filed
    under Article 137 of the Constitution read with Order XL of the
    Supreme Court Rules, 1966. Notwithstanding the wider set of grounds
    for review in civil proceedings, it is limited to 'errors apparent on the
    face of the record' in criminal proceedings. Such applications are not
G   to be filed for the pleasure of the parties or even as a device for
    ventilating remorselessness, but ought to be resorted to with great
    sense of responsibility. [577-C-E, 577-H; 578-C-E)

          P.N Eswara ~ver & Ors. v. Registrar. Supreme Cuurt of India, [19801
H 4 sec 680, followed.
                       Z.H. SHEIKH v. STATE                         573
     Suthendraraja @ Suthenthira Raja @ Santhan & Ors. v. State A
through DSPICBI, Chennai (1999] 9 SCC 323; Ramdeo Chauhan @ Raj
Nath v. State'Of Assam, (2001] 5 SCC 714; Devender Pal Singh v. State,
NCT of Delhi & Anr., (2003] 2 SCC 501 and Delhi Administration v.
Gurdip Singh Uban & Ors., (2000) 7 SCC 296, relied on.

      1.2. The plea that there was no "specific prayer" for transfer
                                                                          B
outside the State is totally false and misleading. Every prayer need not
always be by a separate application, unless such prayer is the only
relief sought or that the proceedings filed had no other claim, by way
of relief. If the basis of grievance has been sufficiently disclosed openly
and the relief sought is one among others specified as incidental or C
ancillary to main relief and the Court had the power to grant it, the
fact that there was no formal or specific application which if at all may
be relevant for purposes of determining the Court fee to be paid only,
does not in any way undermine the powers of the Court to accord
relief. (579-A-C]                                                           D
     1.3. The averment that the point was "not permitted to be
argued'', when on the same breath it is stated that the prayer was
"opposed" really shows the extent of falsehood to which the applicant-
State has gone and demonstrate the deterioration and falling standards E
in preparation and filing of papers in Court. (579-E-F]

      1.4. The direction given in the present case for transfer, though
keeping in view normal principles governing claims for transfer, was
really in exercise of powers by this Court as an Appellate Court with
plenary and unlimited powers to do justice while dealing with an F
appeal under Article 136 of the Constitution and as an inevitable
consequence of the appeals being allowed the reasons for which would
equally justify on their own the need for transfer outside the State as
well. (581-B-C]

    A.R. Antulay v. R.S. Nayak & Anr., (1988] 2 SCC 602 and Supreme
                                                                          G
Court Bar Association v. Union of India & Anr., (1998] 4 SCC 409,
distinguished.

    1.5. It is beyond comprehension and not only unethical but
impermissible for anyone to expect that this Bench could not or ought H
    574               SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A not to have disposed of the appeals, as they deserve and the manner
  in which interests of justice would require. When the appeals have been
  directed to be posted before this Bench to hear the appeals, this Bench
  as the appellate Court exercising powers under Article 136 of the
  Constitution is entitled to deal with as warranted, necessitated and as
B they deserved in law, and it is pernicious for anyone to think or expect,
  as to how the Court should dispose it of, as some would wish or desire,
  partially or in a perfunctory manner. So the plea that petitions relating
  to change of place of trial are pending before this Court deserves to
  be only noted and rejected. (582-F-Hl

c        1.6. This Court fail to understand how the observations made in
    any way can have demoralizing effect on the highest Court of the State,
    or creating negative impact upon the State Judiciary in discharging its
    functions. A judgment, the observations and criticisms as to the
    manner of disposal have to be soberly read with objedivity and not
D   out of context or even as a provision of an Act or rule, with pre-
    conceived notions apparently exposing virtually ones' own hidden
    desires or agendas, if any. If only this Court intends to castigate or
    condemn anyone, who deserved such treatment, be it an institution or
    authority or incumbent in office, there is no need for it to labour on
E   an excuses to do so indirectly. (583-E-G]

        1. 7. An aspect which throws considerable doubt about the bona tides
  of the State Government and its true colours is the veiled threat of legal
  action for changed statements and credibility of a witness. It sounds
F more like a stand of the defence and not that of the prosecutor. The
  State Government had filed application for acceptance of additional
  evidence primarily on the ground of what was stated in the affidavit
  by the appellant, one of the eyewitness to highlight the situation when
  her evidence and those of others were tendered before the trial Court
  The State Government's sympathies more for the accused than the
G victims become crystal clear when one looks at the State's stand that
  the ramifications of the transfer are serious insofar as 'the accused'
  are concerned. The statement is made by an officer of the State on
  affidavit hased on his knowledge, and are purportedly based on
  records of the case. How he could know it and how the records of the
H case reveal that the counsel for the said eyewitness made "cursory oral
                      Z.H. SHEIKH v. STATE                        575

submissions at the end of the submissions" regarding transfer or that A
the consequential question was "not permitted to be argued'', which
again is false. This Court expresses its strong displeasure to the
exhibition of recklessness and lack of rectitude shown in filing the
application with such false and make believe statements in abundance.
The deponent appears to be only cat's paw and, therefore no action B
against him is directed though the case warranted stringent action. The
application is thoroughly misconceived, a sheer abuse of the process
of law. 1583-H; 584-A-E]

      2.1. When the primary consideration was the justifiability of
rejecting the applications in terms of the Sections 311 and 391 Cr.P.C., C
the question of considering the evidence on record did not arise. This
Court considered the appeal taking note of those aspects. It was not
necessary to record any finding in the appeals as to whether the
respondents-accused in the appeals were to be convicted or acquitted.
The appeals were allowed for the reasons that the investigation was D
vitiated. Tainted evidence was tendered and distorted trial was held
and they would suffice to set aside the judgments. Therefore, the
question of considering the evidence on record, except to the extent
necessary for deciding the appeals did not arise. The observations
made were in the context of the conduct of the public prosecutor, the E
prosecuting agency and the failure of the Courts below to take note
of relevant aspects. [585-B-D]

     2.2. When the matter would be taken up for trial afresh, it
is obvious that the worth of the evidence has to be considered by F
the Court concerned on its own merits and in accordance with law
to find out the real truth. That being so, the plea raised by the
accused-petitioner regarding the need for consideration of the
evidence on record is really of no consequence and has no merit of
acceptance. [585-D-E]
                                                                        G
    CRIMINAL APPELLATE JURISDICTION : Cr!. Misc. Petition Nos.
4827-4833/2004 in Criminal Appeal Nos. 446-449 of 2004.

     From the Judgment and Order dated f9.12.2003 in Crl. Misc. Appl.
No. I 0315/03 in C.R. Appl. No. 583/03 and Final Order and Judgment H
    576                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A dated 26.12.2003 of the Gujarat High Court in Crl. A. No. 956103 with Crl.
    Misc. Appl. No. 7677/03 with Crl. Misc. Application No. 9825/03.

                                        AND

B         Criminal Appeal Nos. 450-452 of 2004

                                        WITH

          Cr!. Misc. Petition Nos. in Criminal Appeal Nos. 446-449 of 2004.

c        Mukul Rohtagi, Additional Solicitor General, K.T.S. Tulsi, Sushi!
    Kumar, Ms. Aparna Bhat, P. Ramesh Kumar, Ms. Priya Kiran, Mrs.
    Archana P. Khopde, Ms. Hemantika Wahi, Nikhil Goel, Dr. Kailash Chand
    and Sanjay Jain for the appearing parties.

D         The Judgment of the Cou1t was delivered by

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

F       The. reasons for making this application primarily are that the
  direction for fresh trial outside the State of Gujarat is unwarranted. per
  incurium being not permissible in law, in violation of principles of natural
  justice, without consideration of real factual scenario, without specific
  prayer in that regard and reflect adversely on the credibility of the entire
G judiciary and administration of the State.
          Mr. Mukul Rohtagi, learned senior counsel appearing for the applicant
    - State submitted that the direction given for transfer outside the State of
    Gujarat is not in accordance with law. According to him. such a direction
H   could only have been given on a petition filed under Section 406 of the
                Z.H. SHEIKH v. STATE [PASAYAT, J.]                    577
Code of Criminal Procedure, 1973 (in short the 'Code') and not otherwise. A
Strong reliance i.s placed on a decision of this Court inA.R. Antulay v. R.S.
Nayak and Another, [1988] 2 SCC 602. Emphasis is laid on the observations
at pages 729 and 730 paragraphs 204 and 206 respectively. It was
submitted that even by exercise of power under Article 142 of the
Constitution of India, 1950 (in short the 'Constitution') also such a B
direction could not have been given. Reference in this context was made
to Supreme Court Bar Association v. Union of India & Anr., [1998] 4 SCC
409. There is no power according to the applicant-State for suo moto
directing such a course to be adopted.

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

      It is to be noted that a review application can be filed under Article
13 7 of the Constitution read with Order XL of the Supreme Court Rules,
1966 (in short the Rules). Rule 3 of Order XL is significant. It reads as H
    578                SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.

A follows :-

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

c         As noted by a Constitution Bench of this Court in P.N Eswara Iyer
    and Ors. v. Registrar, Supreme Court of India, (1980) 4 SCC 680,
    Suthendraraja alias Suthenthira Raja alias Santhan & Ors. v. State,
    through DSPICBI, Chennai, (1999) 9 SCC 323, Ramdeo Chauhan alias
    Raj Nath v. State of Assam, (2001) 5 SCC 714, and Devender Pal Singh
D   v. State, NCT of Delhi and Another, (2003) 2 SCC 501, notwithstanding
    the wider set of grounds for review in civil proceedings, it is limited to
    'errors apparent on the face of the record' in criminal proceedings. Such
    applications are not to be filed for the pleasure of the parties or even as
    a device for ventilating remorselessness, but ought to be resorted to with
E   great sense of responsibility as we! I.
                                                                                    •
          In Delhi Administration v. Gurdip Singh Uban and Others, (2000)
    7 sec 296 it was held that by describing an application one for
    "clarification" or "modification" though it is really one of review a party
F   cannot be permitted to circumvent or bypass the circulation procedure and
    indirectly obtain a hearing in the open Court. What cannot be don.! directly
    cannot be permitted to be done indirectly. The Court should not permit
    hearing of such an application for "clarification", "modification" or
    "recall" if the application is in substance a clever move for review.

G         In that background, we could have straightaway and summarily too
    dismissed the application with exemplary costs for the blatant abuse of the
    process of law as done by the applicant - State. But we feel it necessary
    to highlight the magnitude of deceitfulness adopted to mislead and the
    patent falsity of the claims made as also the ulterior object behind the
H   petition.
                  Z.H. SHEIKH v. STATE [PASAYAT, J.)                        579

         Firstly, the plea that there was no "specific prayer" for transfer outside A
  the State is totally false and misleading. Every prayer need not always be
  by a separate application, unless s11ch prayer is the only relief sought or
  that the proceedings filed had no other claim, by way of relief. If the basis
  of grievance has been sufficiently disclosed openly and the relief sought
  is one among others specified as incidental or ancillary to main relief and B
  the Court had the power to grant it, the fact that there is no formal or
  specific application which if at all may be relevant for purposes of
  determining the Court fee to be paid only, does not in-any way undermine
  the powers of the Court to accord relief, so long as the request in this regard
  has been indisputably made and was also responded to by the parties before C
  Court. In fact at pages 123 onwards of the paper book in Crl. Appeal Nos.
  446-449 of2004, several grounds to justify the re-trial outside Gujarat have
  been indicated. The submissions made in this regard are found recorded
  in the judgment itself and to claim to the contrary is sheer travesty of truth,
  mean as well as meaningless. Secondly, the plea that issue of transfer was
  neither raised nor argued by all parties is of no consequence. It is not D
  necessary that all parties should raise or argue it and no one was restrained
  from arguing it. So far as the question of argument is concerned, it is really
  shocking that false to statement has been made that the point was "not
  permitted to be argued" (at page 5, para 'B') by a person whose presence
· and credibility to make such statement itself has not been substantiated. E
  In the said paragraph it has been earlier stated that prayer for transfer
  outside the State was "opposed by the State". If the former plea does not
  amount to false statement, probably nothing would. The averment that the
  point was "not permitted to be argued", when on the same breath it is stated
  that the prayer was "opposed" really shows the extent of falsehood to which F
  the applicant-State has gone and demonstrate the deterioration and falling
  standards in preparation and filing of papers in Court. Though we could
  have proceeded against the person on more than one counts, we only pity
  him for offering himself to be a scapegoat, apparently for reasons best
  known to him, which at any rate c<;>uld not be genuine or ethical
  whatsoever. The stand that there was no opportunity granted to the State G
  is further falsified in view of what is stated in para 25 of the judgment (page
  388 of SCALE). Even that apart opportunity before Courts are to be sought
  and availed of and there is no need to invite them to do so and grievance,
  if any, could be made in this regard only when sought for but rejected by
  the Court.                                                                        H
    580                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A       The decision in A.R. Antulay's case (supra) has really no application
  to the facts of the present case. Section 406 of the Code relates to a case
  where either the trial or appeal is pending before a trial Court or the High
  Court. In the case at hand the appeal against judgment of the High Court
  was being decided and the entire matter was in the hands of this Court and
B unless relegated back to the very Court, for which there is no compulsion
  to send it automatically, the power of this Court to send it to an appropriate
  Court to ensure complete justice between the parties and avert miscarriage
  of justice, cannot be doubted or questioned. Therefore. the question of
  filing a petition for transfer in terms of Section 406 of the Code did not
  arise. The decision in A.R. Antulay 's case (supra) was not rendered in the
C context oftht: competency, jurisdictions or authority of this Court dealing
  with a substantial appeal against the judgments of the Courts below in
  exercise of its plenary jurisdiction, which have been construed to be
  capable of being exercised in spite of limitations, if any, under special
  provisions contained in the constitution or other laws in order to do
D effective, real and substantial justice, co-extensive and commensurate with
  the needs of justice in a given case meeting any exigency. Orders of Courts
  under Article 136 of the Constitution have been held to be unassailable and
  cannot be said to' be void. Whereas, Article 142, though very wide is
  viewed to be limited to the short compass of the actual dispute before the
E Court and not to what might necessarily and reasonably be connected with
  or related to such matter. In A.R. Antulay 's case (supra) what was before
  the Court an appeal from an order made in a Revision before the High
  Court which itself was against an order of the Special Judge constituted
   under the Criminal Law Amendment Act, 1952 rejecting the objections
F taken to the jurisdiction of the Special Judge to take cognizance of the
  complaint filed as a private complaint. It is in this context only Article 142
   was not of assistance to that case, particularly in the teeth of the special
   provisions constituting a Special Court of particular nature and speciality
  de hors the other fact that the Court on its own without the seeking of any
  one of the parties directed transfer. The observations contained therein
G cannot be quoted or drawn out of context and consequently the decision
   in A.R. Antulay's case (supra) has no relevance or application to the present
   case and the reference to it is wholly inappropriate. Supreme Court Bar
  Association's case (supra) related to the scope of power under Article 142
   of the Constitution and pertained to the authority of this Court to punish
H an advocate for professional misconduct and not merely to punish him for
                Z.H. SHEIKH v. STATE [PASAYAT, J.]                      581

contempt in respect of which only the main matter itself was before this A
Court. The powers under Article 142 though considered to be of very wide
amplitude are complementary, and supplementary in nature available no
doubt to prevent injustice and to do complete justice between parties in the
pending litigation. The ratio in that case has no relevance to the present
case and it would only justify the course adopted to prevent injustice and B
do complete justice between parties, as an inevitable consequence of the
decision taken in the main appeal itself. The direction given in the present
case for transfer though keeping in view normal principles governing
claims for transfer was really in exercise of powers as an Appellate Court
with plenary and unlimited powers to do justice while dealing with an C
appeal under Article 136 of the Constitution and as an inevitable consequence
of the appeals being allowed the reasons for which, would equally justify
on their own the need for transfer outside the State as well. It is in essence
an adjunctive power. As noted in Union Carbide Corporation and Ors. v.
Union of India and Ors., [ 1991] 4 sec 584 the purposed constitutional D
plenitude of the powers of the apex Court to ensure due and proper
administration of justice is intended to be co-extensive in each case with
the needs ofjustice of a given case and to meeting any exigency. Very wide
powers have been conferred on this Court for due and proper administration
of Justice. This Court retains an inherent power and jurisdiction for dealing E
with any extra ordinary situation in the larger interests of administration
of justice and for preventing manifest injustice being done. The power is
required to be exercised only in exceptional circumstances for furthering
the ends of ju.stice. Therefore, the ratio in A.R. Antulay 's case (supra) in
no way makes our judgment fragile. On the contrary, as noted above, the
ratio in that decision has no application. Additionally, it may be noted that F
in A.R. Antulay's case (supra) the controversy related to transfer from the
special Court to the High Court, a Court which was not the designated or
constituted one under the special enactment. When the direction given in
the judgment is for a re-trial by a Court of Session the logic applied in A.R.
Antulay 's case (supra) equally has no application.                            G

      It has to be noted that in A.R Antulay's case (supra) it was noted by
this Court that the question of transfer from one court rn another was not
in issue. As highlighted above, contrary to what has been pleaded by
applicant-State there was specific issue relating to transfer of the case H
    582                 SUPREME COURT REPORTS (2004) SUPP. 2 S.C.R.

A outside the State of Gujarat and arguments were advanced.
         Another red herring which has been tried to be drawn is regarding
    pendency of writ petition/SLP involving prayer for transfer. The SLP
    appears to have been filed before delivery of judgment by the High Court
B and even before the appeals were heard by the High Court. After delivery
  of the judgment which was the subject matter of challenge in Criminal
  Appeals, the plea of transfer stated to have been made in some other SLPs
  (one of which was subsequently converted as a writ petition under Article
  32 of the Constitution) is really of no consequence. The Writ Petition (Crl.)
C 109 of2004 is stated to have been filed on 3 lst July, 2003 and SLP (Cr!.)
  3770 of 2003 in August, 2003. The appeal before the Gujarat High Court
  by the State was filed on 7.8.2003, amended twice as noted in the judgment
  itself. SLP (Crl.) 3770 of 2003 was filed against the judgment of the trial
  Court. SLP filed by NHRC was treated as one under Article 32 of the
D Constitution. This Court as the Appellate Court dealing with the Judgments
  of the Trial Court and the Appellate Court, exercising plenary powers under
  Article 136 of the Constitution, while directing re-trial has ample jurisdiction
  to fix the place or the court which should undertake such exercise, keeping
  in view the needs ofjustice in a given case with the object of ensuring real,
E substantial due and proper justice, and that too as an inevitable and
  necessary corollary of the decision to set aside the judgments of the Courts
  below. When the appeals were directed to be listed for hearing by
  constituting this Bench as specially designated by the Hon 'ble CJI in
  exercise of his prerogative, and the proceedings before the other Bench
  presided over by the Hon 'ble CJI was being adjourned in the presence of
F parties/counsel appearing before us as well awaiting the result of the
  appeals directed to be posted before this Bench, it is beyond comprehension
  and not only unethical but impermissible for anyone to expect that this
  Bench could not or ought not to have disposed of the appeals, as they
  deserve and the manner in which interests of justice would require. When
G the appeals have been directed to be posted before this Bench to hear the
  appeals, this Bench as the appellate Court exercising powers under Article
   136 of the Constitution is entitled to deal with as warranted, necessitated
  and as they deserved in law, and it is pernicious for anyone to think or
  expect, as to how the Court should dispose it of, as some would wish or
H desire, partially or in a perfunctory manner.
                Z.H. SHEIKH v. STATE [PASAYAT, J.]                     583
     So the plea that petitions relating to change of place of trial are A
pending before this Court deserves to be only noted and rejected.

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

     Another aspect which throws considerable doubt about the bonafides
of the State Government and its true colours is the veiled threat of legal
action for changed statements and credibility of Zahira as a witness. It H
    584                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

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

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

       Now, we shall deal with an application filed by accused Tulsibhai
  Bhikhabhai Tadvi. Mr. K.T.S. Tulsi, learned senior counsel appearing for
G him adopted the submissions of learned counsel for the State of Gujarat.
  Additionally, he submitted that when dealing with an appeal against
  acquittal this Court was required to consider the evidence which weighed
  with the Court's directing acquittal. Though we had restricted the scope
  of consideration to the rejection of the application under Sections 311 and
H 391 of the Code, ce1tain observations have been made which would
                Z.H.SHEIKH v. STATE [PASAYAT, J.]                      585
prejudice the accused persons. They did not get an opportunity to show A
that the evidence on record was otherwise. This plea is also without any
substance and does not merit countenance.

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

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

     The applications are dismissed.

S.K.S.                                                 . ·
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