NATIONAL HUMAN RIGHTS COMMISSION versus STATE OF GUJARAT

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 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. .· 260

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.

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. NATIONAL HUMAN RIGHTS COMMISSION V. 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 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 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 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 0 organized criminals. In South Africa public prosecutions are 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 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 NATIONAL HUMAN RIGHTS COMMISSION V. STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.] this recommendation was not included in the Code then. Again 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 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 mainly, Delhi, Andhra Pradesh, Bihar, Goa, Himachal Pradesh, D .4 .. 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 E Directorate of Prosecution in every state. "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. (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. ,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. ( 4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. c (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 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 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. (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 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.

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 NATIONAL HUMAN RIGHTS COMMISSION V. 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 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 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 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 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 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 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 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. 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 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 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 (a) Crime No. 9 102 (b) Crime No. 100/02 (c} Crime No. 23/02 (d) Crime No. 98/02 (e) Crime No. 46/02 (f) Crime No. 67/02 · (g) Crime No. 60/02 (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- 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. (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) ii) Ahmedabad (Gulbarg). iii) Mehsana (for two cases). iv) Saabarkantha opened(British National case) 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 NATIONAL HUMAN RIGHTS COMMISSION V. STATE OF GUJARAT [DR. ARIJIT PASAYAT, J.] _._ these trials can be concluded as soon as possible and in 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. (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 r• -1, assistance is made available to such Public Prosecutor. (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 [2009) 7 S.C.R. 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 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 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 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 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 by providing necessary security facilities.(xii) In the third kind of a situation, where the Chairman, SIT is satisfied ,_ . '1 that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements fo.r the relocation of such witness. The Chairman, SIT shall send an appropriate -r ' " NATIONAL HUMAN RIGHTS COMMISSION V. -1. 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.

(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 . …. (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 E orders. The SIT shall also look into this area. (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