"The Learned Trial Court and its obligation in a criminal trial is to take steps for discovery, vindication and establishment of truth and hence the trial should be a search for truth and not a bout over technicalities, the presiding judge must cease to be a spectator and a mere recording machine.... In case the prosecution or the defence has failed to produce material witnesses and material evidence, which is necessary for just & proper disposal of the case and to uphold the truth then it is a duty enjoined upon the trial court to... call all such witnesses whose testimony can be an aid to uphold the truth and in order to impart justice with fairness and impartiality".
That long excerpt is an observation made by the Supreme Court of India in Zahira Shaikh vs the State of Gujarat, better known as the Best Bakery case. And on a day when the country's highest court was dealing with Sanjay Dutt, a prayer that the court reiterate what it said during Best Bakery, went almost unnoticed.
It was made by the accused in the Aarushi-Hemraj murder trial - Dr Rajesh and Nupur Talwar, the dentist couple accused of murdering their daughter and manservant.
Their pleas having been dismissed at the trial court, and with time running out, they have approached the Supreme court directly, to quash an order of the trial judge. The order said that the trial court would not call 13 witnesses that the prosecution chose not to call. The Talwars have argued that this is prejudicial: these witnesses may be listed as prosecution witnesses, but many of them are CBI officers who tell a very different story from what the court has heard from the agency. Which is exactly why the CBI chose to drop them.
It was within the powers of the trial court not to summon the witnesses. Equally, it was also within its powers to ask them to testify. The Talwars have pleaded with the Supreme Court to direct the trial court to do this before the trial judge proceeds further. Friday provided a really quick and accurate sketch of how the justice system works in India. In Ghaziabad, the judge had planned to record the statements of the accused in the morning, but the court couldn't sit because of a strike.
In the Supreme Court, the Talwars' petition was listed for 2 pm, but at the 'end of the board' - meaning it would be one of the last things entertained by Justices Patnaik and Sikri. In the event, it came up at 4 pm, minutes before the close for the day - and for the season. Through the day, the Bench had had to deal with 73 matters. Another half a dozen urgent ones (like the Talwars') came up after. In one case, a demolition supposed to take place on Friday was stayed. The Talwars and the CBI got, under 60 seconds.
Just enough time for the defence's K.V. Vishwanathan and Tanveer Ahmed Mir, to tell the court their matter was really urgent, and for the prosecution's Sidharth Luthra to mumble something about why they hadn't approached the Allahabad High Court first. But the judges had had a long day. They moved the application to a vacation bench. It will come up again on Monday. Meanwhile, the machine in Ghaziabad, chugs along - the Talwars may have to answer the questions put to them there, on the same day as they argue why they shouldn't be made to do that, in the Supreme Court.
Avirook Sen has been a journalist and writer for over 20 years. A former resident editor of Hindustan Times (Mumbai) and editor of Mid-Day, he has written with passion and insight on subjects as varied as sport and terrorism for top publications across the world. His first book, Looking for America, was published in 2010 to enthusiastic reviews. You can write to him at firstname.lastname@example.org