CASE ANALYSIS OF

ZAHIRA HABIBULLAH H SHEIKH AND ANR V. STATE OF GUJARAT

 [2004] 4 SCC 158

By:-

Rohit Santosh K

BBA.LLB. (HONS)

November 5, 2021

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ABSTRACT

The following is a brief case analysis of the Zahira Habibullah H Sheikh And Anr vs. State
Of Gujarat And Ors [2004] 4 SCC 158. This case, commonly called the ‘best bakery’ case, is
considered to be a landmark judgment not only because it dealt with the post Godhra riot
incident but also because it dealt with witness tampering, role of powerful politicians in
misleading the court, impugned role of prosecutors and the foundation of a free and fair trial.

This case has been read, summarised and analysed broadly under the following heading:
Facts of the case, Issue raised, Arguments by appellants, legal aspects, and established
precedents, overview of the judgement, conclusion, and suggestions.

The case focuses on the legal provisions embedded in articles 14, 21 and 139(A) of the
constitution as well as section 409(1), 173(8) and 311 of the CrPC. It also investigates section
165 of the Indian Evidence act, 1872. The supreme court, via this judgement, reiterated the
famous Bentham quote ‘’witnesses are the eyes and ears of justice’’. The court in its erudite
judgement dealt with how the state machinery, at times, influences the justice delivery system
and causes travesty of justice. It also propounded the theory of triangulation of interest in
criminal jurisprudence.

KEYWORDS: BEST BAKERY CASE, WITNESS TAMPERING, IMPUGNED

BRIEF FACTS OF THE CASE:

Between 8:30 pm of 1.3.2002 and 11.00 am of 2.3.2002, a food eatery by the name of
“best bakery” was put to flames by an angry crowd, presumably for seeking vengeance for
the Godhra incident which happened on 27.02.2002 (56 persons, mostly karsevaks, were
burnt to death in the Sabarmati express in Gujarat). This act of incineration, fuelled by
communal rage, led to the death of 14 persons. Zahira Habibullah, the first appellant as
well as the prime witness, saw eleven members of her family members and three
employees of the bakery burn to death. Apart from her there were other witnesses too. A
charge sheet was filed against the accused in June 2002. However, in the trial court many
witnesses, including Zahira resiled from the statements they gave during the investigation
stage. In the court she testified that at the time of the incident, she had been on the terrace
and thus had not seen the perpetrators of the crime. As a result, the trial court, in its

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judgment dated27.06.2003, absolved all the 21 accused in the proceedings, on the grounds
of lack of evidence. Then Additional sessions judge H U Mahida apprehended that under
the pressure of bringing the culprits to book, the police may have incriminated innocent
people. The appellant voiced that the investigation was faulty, the trial was perfunctory and
hence the decision defeated the aim of justice in criminal cases.

Zahira then approached the National Human Rights Council (NHRC) alleging that
powerful politicians pressurized her to depose falsely and turn hostile. Many thus
perceived the trial court judgement to be biased that lead to a grave travesty of justice.

on the grounds of additional An appeal was filed before the high court of Gujarat;
however, the court rejected the appeal. A petition filed by the state government for
initiating re-trial evidence found under section 391 of CrPC was also repudiated. Request
for re-examination of the witnesses under section 311 of CrPC also met the same fate.

NHRC, along with Zahira Habibullah and another organisation namely, Citizens for justice
and peace, filed a Special Leave Petition (SLP) in the Supreme Court. This was treated as a
petition under Article 32 of the Constitution of India and accepted by the court.

ISSUES RAISED:

 Question of witness protection in India

A two-bench judge of Justice Doraiswamy Raju and Justice Arjit Pasayat examined the
aforesaid questions.

ARGUMENTS FOR RE- TRIAL PUT FORTH BY APPELLANTS:

The reasons for demanding a fresh trial were:

 A large number of witnesses unsaid their statements and turned hostile. Four out of
a total of seven injured witnesses had retracted. This should have raised a
reasonable suspicion that the witnesses were either being coerced, threatened, or

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 lured. In spite of this, the public prosecutor did nothing about protecting the
witnesses or informing the court.
 Zahira Sheikh also stated an affidavit stating that she was pressurised by men in a
position of power.

LEGAL ASPECTS:

The case resolves around the interpretation of various articles of the constitution as well as
sections from the CrPC and the Indian Evidence Act.

1. Article 139 A(2) of the constitution : ‘‘ The Supreme Court may, if it deems it
expedient so to do for the ends of justice, transfer any case, appeal or other
proceedings pending before any High Court to any other High Court’’ 1. This article
allows the Supreme Court to transfer cases from one high court to another, in cases
where it feels that free trial may not be possible, by way of compromising the
witnesses or destruction of evidence in the home state.
2. Section 409(1) of CrPC: ‘‘Whenever it is made to appear to the Supreme Court
that an order under this section is expedient for the ends of justice, it may direct
that any particular case or appeal be transferred from one High Court to another
High Court’’2.
3. Section 173(8) of CrPC: ‘‘Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report under sub- section (2)
has been forwarded to the Magistrate and, where upon such investigation, the
officer in charge of the police station obtains further evidence, oral or documentary,
he shall forward to the Magistrate a further report or reports regarding such
evidence in the form prescribed’’3. This section empowers the police to
reinvestigate the case despite the fact that the court has take cognizance of the
matter.
4. Article 14 of the constitution: It is one of the fundamental rights enshrined in
the constitution. It calls for ‘’equality before law’’ and ‘’equal protection of law’’4.

1
Article 139 A(2) of the constitution<https://indiankanoon.org/doc/1806796/> accessed on 24 November, 2020
2
Section 409(1) of CrPChttps://indiankanoon.org/doc/1326844/ accessed on 23 November, 2020
3
Section 173(8) of CrPC<https://indiankanoon.org/doc/274924/> accessed on 24 November,2020
4
Article 14 of the constitution <https://indiankanoon.org/doc/367586/> accessed on 24 November,2020

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 5. Article 21 of the constitution: It is one of the fundamental rights enshrined in
part III of the constitution.‘’No person shall be deprived of his life or personal
liberty except according to procedure established by law’’5.
6. Section 311 of CrPC: ‘‘Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person as a witness’’6.
7. Section 165 of Indian Evidence Act : ‘’The Judge may, in order to discover or to
obtain proper proof of relevant facts, ask any question he pleases, in any form, at any
time, of any witness, or of the parties’’7.

ESTABLISHED PRECEDENTS:

Since holding a free and fair trial in the Gujarat High court raised a reasonable
apprehension, the Supreme Court, while Upholding the precedent laid down in Maneka
Sanjay Gandhi v. Rani Jethmalani8 , and G.X Francis And Ors. v. Banke Bihari Singh 9,
ordered the trial of the case to begin under the jurisdiction of the High court of Bombay. In
the above two cases, the court had claimed that ‘‘Justice should not only be done, but is
should be seen to be done’’. Apprehension about the travesty of just must arise in the
minds of a reasonable and rational man.

In Mohanlal Shamji Soni v.Union of India, 199110, the court held that in cases where the
presiding judge feels that certain evidences central to the case are being missed, he can
exercise his right under section 311 of the CrPC, to examine any witness at any stage in the
trial. This acts as a major safeguard in cases where the prosecutor falls short of performing
his duty, either by reason of lack of skill or dishonourable motives. The prime aim of the
court is seeking the truth and giving justice, and hence no evidence can be set aside
without reasonable justification.

OVERVIEW OF THE JUDGMENT:

The erudite judgement was authored by Justice Arjit Pasayat (and on behalf of Justice
Doraiswamy Raju).

5
Article 21 of the constitutionhttps://indiankanoon.org/doc/1199182/ accessed on 24 November 2020
6
Section 311 of CrPC< https://indiankanoon.org/doc/1780550/> accessed on 24 November,2020
7
Section 165 of Indian Evidence Act<https://indiankanoon.org/doc/302809/>accessed on 24 November,2020
8
Maneka Sanjay Gandhi v. Rani Jethmalani , (1979) 4 SCC 167
9
G.X Francis and Ors. v. Banke Bihari Singh, AIR 1958 SC 309
10
Mohanlal Shamji Soni v.Union of India1991 AIR 1346, 1991 SCR (1) 712

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  On improper conduct of public prosecutor
The court was of the view that the public prosecutor failed to perform his duty in an
honourable manner. (In reference to witness protection, the prosecutor could have
tried to keep the identity of the witness anonymous, requested for in-camera trials
and protection for the witness. He also did not make efforts to approach the injured
witnesses. In one instance of gross misconduct, the public prosecutor decided to
drop a key witness on the grounds that he was mentally unstable. The trial court
also accepted this without making bare minimum efforts for verifying whether the
said witness was mentally unsound or not. Many witnesses were also not examined
without giving any justification whatsoever).
 On the role of investing agency
The investigation seemed to be ‘’perfunctory and partial’’.Procedure mentioned in
the IEA, 1872 was not followed.
 On role of the state government

In precise terms it held that ‘’those who are responsible for protecting the life and
property and ensuring that investigation is fair and proper seem to have shown no real
anxiety’.11 The court used the analogy‘‘when fences start to swallow the crops, no
scope will be left for survival of law and order or truth and justice’’.12

 Basics of a free and fair hearing

The court held that as guaranteed by the principles of natural justice and articles 14 and 21 of
the constitution, every person had a right to fair hearing(Audi Alteram Partem). Due process
of law must not be flouted by a predefined biased trial.

 Basics of a fair trial

The court remarked that the main purpose underlying the establishment of the court of justice
was

1. Discovery,
2. Vindication and
3. Establishment of truth. 13
11
Zahira Habibullah H Sheikh And Anr vs. State Of Gujarat And Ors [2004] 4 SCC 158
12
Zahira Habibullah H Sheikh And Anr vs. State Of Gujarat And Ors [2004] 4 SCC 158
13
Zahira Habibullah H Sheikh And Anr vs. State Of Gujarat And Ors [2004] 4 SCC 158

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The court observed and scripted some basic principles of fair trial to be:

1. Impartial judge
2. Fair prosecutor
3. Atmosphere of judicial calm
4. No bias against the accused, the victim, or the cause of the case.
5. Witnesses are not threatened, coerced, or lured.
Application of these principles involves a delicate judicial balancing of competing
interest in a criminal trial, or the triangulation of the interest of the accused, the victim
and the state.

Accused

Society Victim

Criminal offences are public wrongs  they affect the public at large. Thus the court cannot
turn a Nelson’s eye to the interests of the society.‘‘ 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 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 the community it serves’’14.

This means that the judge has the power to collect evidence in an active role, where it is
necessary for establishing the truth and for justice to prevail. This provision must, however,
be used in exceptions, treading carefully to prevent judicial overreach. These powers are
granted under section 311 of CrPC and 165 under IEA, 1872.

The court also held that although the trial court had acquitted the accused, the trial itself
did not meet the basic essentials of a fair trial. Hence, it was no acquittal in the eyes of law.

 Order for re-investigation wide section 173(8) of CrPC

14
Zahira Habibullah H Sheikh And Anr vs. State Of Gujarat And Ors [2004] 4 SCC 158

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Both the parties agreed that the trial was ‘‘tainted, biased and not fair’’. While the accused
alleged false implication, the victim’s family alleged that trial was to merely protect the
accused. In the re-investigation, The DGP of police, Gujarat was asked to monitor the
investigation.

 Transfer of case to Bombay High court.

The court was of the view that for free and fair trial, the case had to be, under section
409(1) of CrPC, transferred to the Bombay high court, where the CJ was asked to set up a
court of competent authority.

 Safeguards for witnesses in the case

Bentham once observed that if the witness himself is incapacitated from acting as eyes and
ears of justice, the trial gets putrefied and paralysed, and it can no longer constitute a fair
trial15. The witness may turn hostile on account of threat, coercion, lures, and monetary
considerations or because of power wielded by political clouts. Thus to ensure that a
mockery is not created out of a courtroom trial, the state has to protect the witnesses.

The court also granted liberty to the victims to have a say in the appointment/// of the
public prosecutor. (Contrary to how it actually happens). In addition to that the court held
that the state of Gujarat is to provide protection to the witnesses. If in case the witnesses
ask, the state of Maharashtra is also to provide the witnesses with necessary protection.

 Decision without reason by high court was not right

The high court had dismissed the appeal on 26.12.2003 but had indicated that reasons would
be given later as there was a paucity of time since the court was closing for winter vacations.
The Supreme Court found this unacceptable.16

CONCLUSION:

The court thus held that the trial case was not fair in letter or spirit of the law. It transferred
the case to the Bombay High Court, while at the same time it laid down some principles for
witness protection. The amendment which added section 195(A) IPC in 2006, made the
intimidation of witnesses to be a criminal offence. The witness protection scheme of 2018

15
Mamta Chatterjee‘Problem of hostile witness-who is a hostile
witness’<http://www.legalserviceindia.com/articles/hostile_w.htm> accessed on 22 November,2020
16
Zahira Habibulla H Sheikh And Anr vs State Of Gujarat And Ors <https://indiankanoon.org/doc/105430/>
accessed on 22 November,2020

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provided for police escorts of witnesses, use of audio video to record testimony, maintaining
anonymity of the witness among other things. Despite these efforts, there is a lot of room for
their ‘on-ground’ implementation. The judgment, called "landmark" by BBC journalist
Sanjoy Majumder, brought the case to an end. The case has the legacy of being "one of the
country's most controversial and high-profile trials.
In February 2006, a court in India convicted nine of the 21 people of murder, sentencing them
to life imprisonment. It acquitted 8 others, while issuing warrants for the arrest of four
missing persons. Of the nine convicted for life by the trial court, Bombay High Court
acquitted five for want of evidence, but upheld the sentence in respect of the remaining four.
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On 9 July 2012, The Bombay High Court, upheld the life sentences of four accused, Sanjay
Thakkar, Bahadursingh Chauhan, Sanabhai Baria and Dinesh Rajbhar based on four
eyewitness accounts, who were injured bakery employees and identified the accused. It
acquitted five accused, Rajubhai Baria, Pankaj Gosavi, Jagdish Rajput, Suresh alias Lalo
Devjibhai Vasava and Shailesh Tadvi, for lack of evidence.18

REFERENCES:

1. Zahira Habibullah H Sheikh And Anr vs. State Of Gujarat And Ors [2004] 4 SCC 158
2. Maneka Sanjay Gandhi v. Rani Jethmalani , (1979) 4 SCC 167
3. G.X Francis and Ors. v. Banke Bihari Singh, AIR 1958 SC 309
4. Mohan Lal Shamlal Soni vs Union Of India And Another 1991 AIR 1346, 1991 SCR
(1) 712
5. Witness protection scheme 2018
https://www.mha.gov.in/sites/default/files/Documents_PolNGuide_finalWPS_080720
19.pdf
6. https://indianexpress.com/article/news-archive/crime/best-bakery-case-bombay-hc-
acquits-5-upholds-life-term-to-4/
7. https://web.archive.org/web/20120711231002/http://www.thehindu.com/news/states/
other-states/article3620604.ece

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https://indianexpress.com/article/news-archive/crime/best-bakery-case-bombay-hc-acquits-5-upholds-life-
term-to-4/
18
https://web.archive.org/web/20120711231002/http://www.thehindu.com/news/states/other-states/
article3620604.ece

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