Dinubhai Boghabhai Solanki vs State Of Gujarat .

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 492 OF 2014

DINUBHAI BOGHABHAI SOLANKI .....APPELLANT(S)

VERSUS

STATE OF GUJARAT & ORS. .....RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 1854 OF 2017 (ARISING OUT OF SLP(CRIMINAL) NO. 4965 OF 2017)

CRIMINAL APPEAL NO. 1855 OF 2017 (ARISING OUT OF SLP(CRIMINAL) NO. 5086 OF 2017)

CRIMINAL APPEAL NO. 1856 OF 2017 (ARISING OUT OF SLP(CRIMINAL) NO. 5309 OF 2017)

AND

CRIMINAL APPEAL NO. OF 2017 (ARISING OUT OF SLP(CRIMINAL) NO. 5321 OF 2017)

JUDGMENT

Signature Not Verified Digitally signed by A.K. SIKRI, J. ASHWANI KUMAR Date: 2017.10.31 16:11:01 IST Reason:

Leave granted in SLP(Criminal) No. 4965 of 2017, SLP(Criminal) No. 2

5086 of 2017, SLP(Criminal) No. 5309 of 2017 and SLP(Criminal) No.

5321 of 2017.

2) One, Amit Jethwa, stated to be an activist, who was complaining against

the illegal mining in and around Gir Forest Sanctuary, was murdered. FIR

being I-C.R. No. 163 of 2010 was registered on July 20, 2010 at Sola

Police Station under Sections 302 and 114 of Indian Penal Code, 1860

(IPC) read with Section 25(1) of Arms Act, 1959. In this FIR, amongst

others, Dinubhai Boghabhai Solanki (for short ‘Mr. Solanki’) and his

nephew were also implicated. As per the father of Amit Jethwa (who was

the complainant), State’s Police showed slackness in investigating the

said case. He approached the High Court for transfer of investigation and

vide order dated September 25, 2012, his petition was allowed and

investigation was transferred to CBI. On transfer, CBI registered

RC.11(S)/2012 SCU.V/SC.II/CBI and undertook the investigation. The

aforesaid order dated September 25, 2012 passed by the High Court was

challenged by Mr. Solanki as well as State of Gujarat by filing special

leave petitions in this Court. In the petition filed by Mr. Solanki, he had

prayed for stay of operation of the judgment and order dated September

25, 2012. This miscellaneous application was dismissed and CBI was

given liberty to complete the investigation. After the dismissal of his 3

application, Mr. Solanki was arrested on November 5, 2013. Status report

of the investigation was submitted by the CBI in this Court and after

completion of the investigation, a supplementary chargesheet under

Section 302 read with Section 120B IPC was filed before the concerned

Court in January, 2014. In the chargesheet, Mr. Solanki has been arrayed

as one of the main conspirators along with his nephew Pratap @ Shiva

Solanki and few others. The Criminal Appeal No. 492 of 2014 arising out

of SLP (Crl.) No. 8406 of 2012 filed by Mr. Solanki as well as Criminal

Appeal No. 493 of 2014 arising out of SLP (Crl.) No. 8292 of 2012 filed by

the State of Gujarat, challenging the order dated September 25, 2012 of

the High Court, were ultimately dismissed by this Court by a detailed

judgment and order dated February 25, 2014 which is reported as

Dinubhai Boghabhai Solanki v. State of Gujarat1. However, at the same

time, bail was granted to Mr. Solanki on certain conditions mentioned in

Para 65, relevant portion whereof is reproduced below:

“65. We are not much impressed by the submission of Mr Rohatgi that the appellant-petitioner ought to be released on bail simply because he happens to be a sitting MP, nor are we much impressed by the fact that further incarceration of the appellant-petitioner would prevent him from performing his duties either in Parliament or in his constituency. So far as the Court is concerned, the appellant-petitioner is a suspect/accused in the offence of murder. No special treatment can be given to the appellant-petitioner simply on the ground that he is a sitting

1 (2014) 4 SCC 626 4

Member of Parliament. However, keeping in view the fact that CBI has submitted the supplementary charge-sheet and that the trial is likely to take a long time, we deem it appropriate to enlarge the appellant-petitioner on bail, subject to the following conditions:

(i) On his furnishing personal security in the sum of Rs 5 lakhs with two solvent sureties, each of the like amount, to the satisfaction of the trial court.

(ii) The appellant-petitioner shall appear in court as and when directed by the court.

(iii) The appellant-petitioner shall make himself available for any further investigation/interrogation by CBI as and when required.

(iv) The appellant-petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade that person from disclosing such facts to the court or to the investigating agency or to any police officer.

(v) The appellant-petitioner shall not leave India without the previous permission of the trial court.

(vi) In case the appellant-petitioner is in possession of a passport, the same shall be deposited with the trial court before being released on bail.”

3) Pursuant to the said order, Mr. Solanki was enlarged on bail on February

26, 2004.

4) The complainant has filed Criminal Miscellaneous Petition No. 14006 of

2015 seeking cancellation of the aforesaid bail primarily on the ground that

after the release of Mr. Solanki on bail, he is not only indulging in the acts 5

which amount to violation of the conditions imposed by this Court but is

also threatening and influencing the witnesses. It is further alleged that

because of these reasons, the trial could not progress and was being

delayed or influenced thereby affirming the apprehension expressed by

the complainant at the time of opposing the bail application.

5) Notice in the aforesaid criminal application, seeking cancellation of bail,

was issued. During hearings, it transpired that there were three Sessions

Cases i.e. 02/2014, 03/2014 and 01/2014 and trial had not started

because CBI had filed application before the Principal Judge, Ahmedabad

seeking consolidation of these cases. Taking note of this fact, on

December 7, 2015, direction was given by this Court to the concerned

Session Judge to pass appropriate order on application pending before it

expeditiously and not later than 10 days from the date of the order. The

trial was consolidated at the time of the framing of the charge. Mr. Solanki

filed an application for his discharge which was dismissed by the trial

court. Against that order, revision petition had been filed before the High

Court but no stay was granted. Taking note of these facts, this Court

passed the order dated May 10, 2016 directing the trial court to proceed to

frame the charges and start the trial on day to day basis. This application

for cancellation of bail, thereafter, kept on getting adjourned at the behest 6

of one party or the other. In the meantime, trial proceeded with utmost

expedition, pursuant to the aforesaid directions given by this Court.

6) During the trial, it transpired that most of the witnesses had turned hostile.

This further prompted the complainant to approach the High Court of

Gujarat with an appropriate writ petition seeking certain reliefs including

that of de novo trial. The parties requested that the hearings in the

aforesaid criminal miscellaneous application (seeking cancellation of bail)

be deferred to await the decision of the High Court. The High Court has

decided the writ petition filed by the complainant vide its detailed judgment

dated June 29, 2017. Allowing the said writ petition, the High Court has

directed de novo trial of the case with the following specific directions:

“95. This writ application is disposed of with the following directions:

(1) The High Court on the administrative side shall pass an appropriate order transferring all the three CBI Sessions cases i.e. CBI Sessions Cases Nos. 1 of 2014, 2 of 2014 and 3 of 2014 as on date pending in the Court of the Presiding Officer, namely, Shri Dinesh L. Patel, CBI Courts, Court No. 4, Ahmedabad to any other CBI Court. On all the three CBI Sessions cases referred to above being transferred to a particular Court, the Presiding Officer concerned shall retry all the accused persons on the selfsame charge framed.

(2) The prosecuting agency i.e. the CBI shall obtain the witness summons from the Court concerned and start examining the witnesses a fresh.

(3) The retrial shall commence at the earliest and shall proceed 7

on the day-to-day basis.

(4) The retrial shall be in-camera proceedings.

(5) The prosecuting agency i.e. the CBI as well as the State police machinery is directed to ensure that full protection is given to each of the witnesses and they be assured that no harm would befall upon them in any manner. For ensuring of a sense of confidence in the mind of the witnesses, and to ensure that they depose freely and fearlessly before the Court, the following steps shall be taken:

(i) Ensuring safe passage for the witnesses to and from the Court precincts.

(ii) Providing security to the witnesses in their place of residence wherever considered necessary, and

(iii) Relocation of witnesses to any State or to any other place, as thought fit, wherever such a step is necessary.

Let me at this stage clarify something important. It could be argued that the directions issued by this Court amounts to directly or indirectly exerting pressure on the witnesses, but the answer to this is an emphatic ‘No’. These directions are necessary and are in line of doing complete justice.

xxx xxx xxx

“96. I conclude this judgment reminding one and all that justice is a concept involving the fair, moral and impartial treatment of all persons. In its most general sense, it means according individuals what they actually deserve or merit, or are in some sense entitled to. Justice is a particularly foundational concept within most systems of “Law”. From the prospective of pragmatism, it is a name for a fair result. Injustice anywhere is a threat to justice everywhere.”

7) Challenging that order, Mr. Solanki and few other co-accused persons 8

have filed Special Leave Petitions bearing SLP(Criminal) No. 4965 of

2017, SLP(Criminal) No. 5086 of 2017, SLP(Criminal) No. 5309 of 2017

and SLP(Criminal) No. 5321 of 2017. The events described aforesaid

indicate that the issues in these proceedings are interconnected with each

other. For this reason, Criminal Miscellaneous Petition and the Special

Leave Petitions have been heard together and we proceed to decide all

these cases by the instant common judgment.

8) We have already indicated, in brief, the grounds on which complainant has

filed the applications seeking cancellation of Mr. Solanki’s bail. Let us, at

this stage, record the reasons which prevailed with the High Court in

ordering de novo trial. The High Court noted one crucial and very

pertinent occurrence that had taken during the trial viz. out of 195

witnesses examined by the prosecution during trial, as many as 105

witnesses were declared hostile. The break-up of the witnesses examined

is as under:

Total 105 Witnesses 61 Witnesses are hostile including 8 eye witnesses 16 Police witnesses 47 Panch witnesses 45 Hostile 21 official witnesses 4 Magistrates 1 Complainant 1 Doctor Total 195 Witnesses Examined. 105 witnesses hostile.

9 9) The High Court found that all the important witnesses including the

eye-witnesses resiled from their statements made before the Police. On

that basis, it was contended by the complainant before the High Court that

it was a case where the main accused (Mr. Solanki) who is a former

Member of Parliament had won over all the witnesses including the

eye-witnesses by his sheer power and position. Therefore, according to

him, it was a fit case for directing retrial by the High Court in exercise of its

extraordinary powers under Article 226 of the Constitution of India or the

supervisory jurisdiction under Article 227 of the Constitution of India.

Insofar as allegation of the complainant in the writ petition that witnesses

were turning hostile due to the influence exercised by Mr. Solanki, the

High Court has taken note of the aforesaid application for cancellation of

bail preferred by the complainant in this Court in which two affidavits were

filed by the CBI, supporting the stand of the complainant. In one of the

affidavits filed by the CBI duly affirmed by one Mr. Basil Kerketta, the

Superintendent of Police, Central Bureau of Investigation, Special Crime

II, New Delhi, the following has been stated:

“2. That the contents of para 3 are wrong and denied. It is submitted that before investigation by CBI, the case was investigated by Crime Branch of Ahmedabad and they had filed two charges sheets and they had mentioned 1512 witnesses.

10 Thereafter, on transfer of case from Gujarat Police CBI conducted further investigation in compliance of direction/order vide dated 25.09.2012 of High Court of Gujarat and filed Supplementary chargesheet on 21.12.2013 on conclusion of the investigation. CBI has relied upon 121 Prosecution Witnesses. It is further submitted that till 24.11.2016 Eighty Nine (89) Prosecution Witnesses have been examined and out of these 40 witnesses have turned hostile due to the influence/threat of the accused applicant. The important witnesses including police officers are yet to be examined.

3. That the contents of para 4 are wrong and denied. It is submitted that the accused applicant is the main conspirator and kingpin in the instant case. The PW-26 has clearly deposed before the trial court about the role played by the accused applicant in the murder of Amit Jethwa. It is further submitted that the accused applicant is trying to give a political colour to the statement of the PW-26, where as the PW has no connection with any political party at the time of recording of his statement. It is further submitted that the instant case was registered by CBI on 06.10.2012 and thereafter the witnesses were examined again as fresh and statements recorded accordingly during the course of further investigation.

4. That with regard to para 5 of the additional affidavit, it is submitted that on 15.10.2016, one PW was to be examined and prior to his examination, he filed a complaint to CBI stating therein that accused applicant and his nephew Pratapbhai Shivabhyai Solanki (Co-accused) were undue pressuring his family and elder brother of the PW on 12.10.2016 to change his version to turn hostile in the Court. A true copy of the complaint dated 14.10.2016 is annexed herewith and marked as Annexure-R-1. Further on the complaint of PW, the Trial Court passed order to Director General of Police, Gujarat to verify the substance and to take a decision on the complaint A. true copy of the order dated 15.10.2016 passed by the Specia Judge CBI Court, Court No. 4, Ahmedabad in CBI Sessions Case No. 2/14 is annexed herewith and marked as Annexure-R-2. However, decision in the matter is still pending at the end of DGP, Gujarat.

5. That para 06 of the additional affidavit is the matter of record.

Further it is submitted that the accused applicant was released on bail vide order dated 25.02.2014 by this Hon'ble Court 11

wherein it was clearly mentioned at para 61(IV) that the petitioner

- appellant shall not directly or indirectly make any inducement, threat or promise to persons acquainted with the facts of the case. It is pertinent to mention here that the accused applicant started threatening the witnesses and on the complaint of the witnesses, CBI wrote a letter to Director General of Police, Gujarat and Supdt. Of Police, Distt. Gir Somnath to provide adequate security to the witnesses that they are getting threats to life from the accused applicant. A true copy of the letter dated 9.10.2013 is annexed herewith and marked as Annexure-R-3 and a true copy of the letter dated 5.03.2014 is annexed herewith and marked as Annexure-R-4 and a true copy of the letter dated 30.09.2015 is annexed herewith and marked as Annexure-R-5. Thus, the acts and conduct of the accused applicant have violated the conditions as imposed by this Hon'ble Court while granting bail to him.

6. That para 7 of the additional affidavit is wrong and denied, it is submitted that out of 89 witnesses examined, 49 witnesses have supported the prosecution case fully and 40 witnesses have turned hostile due to the influence of the accused applicant. It is further submitted that actual position of the deposition is a matter of record.

8. That with regard to para 9, it is submitted that 126 witnesses including important witnesses are yet to be examined. Further, the accused applicant is on bail, he is making all possible efforts to influence the remaining witnesses by way of inducement promise and there is a strong possibility that the remaining witnesses may turn hostile. Till now, due to his influence, 40 witnesses have turned hostile. Keeping in view of above circumstances, it is further submitted that the bail of the accused applicant may be cancelled in the interest of justice. It is further submitted that more witnesses may be examined if necessary as this is the prerogative of the prosecution in the interest of the case.

9. It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to cancel the bail granted to Dinubhai Boghabail Solanki vide order dated 25.02.2014 passed by this Hon'ble Court in Crl. Misc. Petition No. 23723 of 2013 or pass any other order as this Hon'ble Court may deem fit and proper in the interest justice. As the accused applicant don't 12

deserve any leniency as he violated the conditions of the bail in the interest of justice.”

10) In one another affidavit filed on behalf of the CBI before this Court

duly affirmed by Shri. S.S. Kishore, the Superintendent of Police, Central

Bureau of Investigation, Special Crime II, New Delhi, the following

assertion is made:

“6. In response to the para 14 of the petition, it is submitted that some of the witnesses have intimated regarding threats given by Shri. Dinubhai Boghabhai Solanki to them and to influence them and thereafter CBI as written letters on 09.10.2013 and 05.03.2014 to DGP of Gujarat Police for providing adequate security to the witnesses as they were under threat witnesses as they were under threat from Dinubhai Boghabhai Solanki.

7. That the contents of para 15 of the petition are matter of record. The complaint lodged with concerned police station against Sh. Dinubhai Boghabhai Solanki and others for their alleged atrocities over the witnesses pertains to the jurisdiction of local police.

10. That in para 1 of the petition, the petitioner has alleged that the shooter in the instant case i.e. Shailesh Pandya, who is presently lodged in Patan Sub Jai, is running an extortion business from the jail itself. These allegations pertain to Sub Jail Patan and concerned Jail Authorities of Patan may take immediate action in this respect.

14. That the apprehension of complainant in para 22 of the petition appears to be genuine witnesses have reported about the threats given to them by Dinubhai Boghabhai Solanki and for that local police respondent no. 3 is competent authority to take necessary steps.”

11) The High Court also took note of various complaints which were 13

made by the witnesses alleging threats being administered by Mr. Solanki

as well as his accomplices. All those complaints are reproduced verbatim

by the High Court in the impugned judgment. Even the Special Director,

CBI had addressed letters to Director General of Police (DGP),

Gandhinagar, Gujarat mentioning about the alleged threats which the

complainant and his family members were receiving and requested the

DGP to provide necessary police protection. So much so, the trial court

was also compelled to pass orders for according protection to certain

witnesses.

12) We may point out at this stage that the accused persons had

opposed the prayer of the complainant in the said writ petition inter alia on

the ground that such writ petition was not maintainable and the Court

could not order retrial before the judgment is pronounced by the trial court.

It was argued that Section 386 of the Code of Criminal Procedure, 1973

(Cr.P.C.) confers powers on the appellate court to order retrial and,

therefore, it was necessary to await the judgment of the trial court and if

the circumstances warranted, depending upon the outcome of the trial

court verdict, such a plea could be taken in the appeal only. It was also

argued that allegations levelled by the writ petitioner (complainant) of

tempering with the prosecution witnesses could not be looked into in the 14

writ proceedings as these were disputed questions of facts. It was also

submitted by the counsel of the accused persons that even those

witnesses who had alleged complaints against Mr. Solanki extending

threats and inducements to them, did not support the case of the

prosecution except one. The trial court had yet to appreciate the evidence

of the hostile witnesses and just because these witnesses had turned

hostile, was no ground or reason to discard their entire evidence. It was

also argued that witnesses turn hostile for various reasons and no

inference can be drawn that this phenomenon occurred only because of

alleged threats or inducement and such a plea of the complainant was

only presumptuous and assumptious. Allegations of extending any threats

or inducement to these witnesses by approaching these witnesses were

denied by the accused persons.

13) After taking note of the aforesaid facts and submissions, the High

Court pointed out that moot question was as to whether it could order

retrial in exercise of writ jurisdiction under Article 226 of the Constitution of

India. With this poser, the High Court has analysed the said issue under

the following heads:

(i) Concept of fair trial.

(ii) Hostile witnesses – a menace to the criminal justice system. 15

(iii) Exercise of writ jurisdiction for the purpose of retrial.

(iv) Sections 311 and 391 of Cr.P.C. and Section 165 of the Indian

Evidence Act, 1872.

The High Court has given a detailed discourse on the necessity to have a fair trial, as a backdrop of the rule of law as well as for dispensation of criminal justice. Taking cognizance of so many judgments2 of this Court wherein the concept of fair trial with the sole idea of finding the truth and to ensure that justice is done, and extensively quoting from the said judgments, the High Court has emphasised that free and fair trial is sine qua non of Article 21 of the Constitution of India. It has also remarked that criminal justice system is meant not only safeguarding the interest of the accused persons, but is equally devoted to the rights of the victims as well. If the criminal trial is not free and fair, then the confidence of the public in the judicial fairness of a judge and the justice delivery system would be shaken. Denial to fair trial is as much injustice to the accused as to the victim and the society. No trial can be treated as a fair trial unless there is an impartial judge conducting the trial, an honest and fair defence counsel and equally honest and fair public prosecutor. A fair trial necessarily includes fair and proper opportunity to the prosecutor to prove the guilt of the accused and opportunity to the accused to prove his innocence.

14) The High Court has also highlighted that the role of a judge in

dispensation of justice, after ascertaining the true facts, is undoubtedly

very difficult one. In the pious process of unraveling the truth so as to

achieve the ultimate goal of dispensing justice between the parties, the

judge cannot keep himself unconcerned and oblivious to the various

happenings taking place during the progress of trial of any case. It is his

judicial duty to remain very vigilant, cautious, fair and impartial, and not to

give even a slightest of impression that he is biased or prejudiced, either 2 16

due to his own personal convictions or views, in favour of one or the other

party. This, however, would not mean that the Judge will simply shut his

own eyes and be a mute spectator, acting like a robot or a recording

machine to just deliver what is fed by the parties. Although, the Courts are

required to remain totally unstirred, unaffected and unmoved amidst the

storms and tribulations of various corrupt and flagitious activities

happening around them involving the police, the prosecutor or the defence

counsel or even the whirlwind publicity of a high profile case which affects

the public opinion and motivates media trial, but it cannot be expected of

them not to deprecate or condemn such misdeeds of those culprits who

are hell bent to pollute the stream of judicial process.

15) It is not necessary to reproduce those copious quotes from various

judgments which have been incorporated by the High Court. However,

following passage from the judgment in Ajay Singh needs reiteration as it

sums up the entire fulcrum astutely:

“Performance of judicial duty in the manner prescribed by law is fundamental to the concept of rule of law in a democratic State. It has been quite often said and, rightly so, that the judiciary is the protector and preserver of rule of law. Effective functioning of the said sacrosanct duty has been entrusted to the judiciary and that entrustment expects the courts to conduct the judicial proceeding with dignity, objectivity and rationality and finally determine the same in accordance with law. Errors are bound to occur but there cannot be deliberate peccability which can never be countenanced. The plinth of justice dispensation system is 17

founded on the faith, trust and confidence of the people and nothing can be allowed to contaminate and corrode the same. A litigant who comes to a court of law expects that inherent and essential principles of adjudication like adherence to doctrine of audi alteram partem, rules pertaining to fundamental adjective and seminal substantive law shall be followed and ultimately there shall be a reasoned verdict. When the accused faces a charge in a court of law, he expects a fair trial The victim whose grievance and agony have given rise to the trial also expects that justice should be done in accordance with law. Thus, a fair trial leading to a judgment is necessitous in law and that is the assurance that is thought of on both sides. The exponent on behalf of the accused cannot be permitted to command the trial as desired by his philosophy of trial on the plea of fair trial and similarly, the proponent on behalf of the victim should not always be allowed to ventilate the grievance that his cause has not been fairly dealt with in the name of fair trial. Therefore, the concept of expediency and fair trial is quite applicable to the accused as well as to the victim. The result of such trial is to end in a judgment as required to be pronounced in accordance with law. And, that is how the stability of the credibility in the institution is maintained.”

16) The High Court, thereafter, described the phenomena of hostile

witnesses which have assumed alarming proportion to the criminal justice

system in India and adversely affecting the fair trial and justice

dispensation system. In the process, the High Court has again referred to

various judgments3.

17) After making general remarks in respect of witnesses turning hostile

which has started happening too frequently in the cases tried in Courts in

India, including the evil of perjury which has assumed alarming proportions

3 18

in case after case coming before the Courts, the High Court summed up

the events which took place in the instant case in the following words:

“58. The facts narrated above are glaring and shocking. Right from the day, the son of the writ applicant came to be murdered, till this date, the manner and method in which the accused persons, more particularly, Dinu Bogha Solanki have dominated the proceedings speak volumes of the power they are able to wield. The present factual conspectus leaves one with a choice either to let the ongoing trial casually drift towards its conclusion with the strong possibility of offence going unpunished or to order a retrial belated though, to unravel the truth, irrespective of the time that may be consumed. As it is, every offence is a crime against the society and is unpardonable, yet there are some species of ghastly, revolting and villainous violation of the invaluable right to life which leave all sensible and right minded persons of the society shell-shocked and traumatized in body and soul. One fails to understand that how could 105 witnesses turn hostile…”

18) The High Court has also mentioned about the bold and honest stand

of the CBI in this case by filing two affidavits wherein CBI had stated that

witnesses were being threatened and on account of which, not a single

witness was ready and willing to depose.

19) In this backdrop, argument of the accused persons predicated on

Section 368 of Cr.P.C. (as noted above) is answered as follows:

“60. In the gross facts which I have highlighted, should I tell the devastated and crestfallen father that although the trial has been a farce, yet the Appeal Court will look into the matter if necessary in exercise of its powers under Section 386 of the Cr. P.C? It is like telling the victim to undergo an unfair trial because there is an Appellate Court to give him a fair hearing and the necessary relief. Should I ask the writ applicant to adduce materials in the 19

form of proof beyond reasonable doubt as regards the tampering of the witnesses? Is the material on record not sufficient for this Court to draw a legitimate inference that it is only on account of sheer power and position of the main accused that the entire trial has been reduced to a farce and could be termed as a mock trial? I have no hesitation in rejecting the arguments of the learned counsel appearing for the accused persons that merely because the witnesses turned hostile, the Court cannot order a retrial in exercise of its extraordinary powers under Article 226 of the Constitution of India. A very feeble argument has been canvassed before me that none of the witnesses complained to the Presiding Officer that they were being threatened or induced by the accused persons. A witness, who has been administered dire threats or won over would never dare to utter a single word. It was for the Presiding Officer and the prosecuting agency to look into the matter and see to it that all the witnesses deposed freely and without any fear in their mind.”

20) Quoting extensively from the judgment of this Court in Ramesh and

others v. State of Haryana4 wherein a serious note of witnesses turning

hostile in criminal cases has been highlighted and various reasons noted

therein making the witnesses retract their statements before Court and

turning hostile, the High Court has stated that in the instant case, the

realistic view of the matter would demonstrate that the major cause for

turning witnesses hostile was the result of threat and intimidation. We

may mention that in para 44 of the judgment in the case of Ramesh and

others, following reasons were assigned for witnesses turning hostile:

“44. On the analysis of various cases, following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile:

4 20 “(i) Threat/intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of Stock Witnesses.

(v) Protracted Trials.

(vi) Hassles faced by the witnesses during investigation and trial.

(vii) Non-existence of any clear-cut legislation to check hostility of witness.”

45. Threat and intimidation has been one of the major causes for the hostility of witnesses…”

21) The High Court has commented about the present case as under:

“63. The case on hand is not one in which the witnesses turned hostile on account of the “culture of compromise”, as explained by the Apex Court. The case on hand is one in which threats and intimidation have been the major causes for the hostility of the witnesses. The Court, therefore, is expected to deal with this type of cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually loose faith in the efficacy of the system of the judiciary itself, which, if it happens, will be a sad day for any one to reckon with one.”

22) At the same time, discussing the law governing de novo trial, the

High Court has accepted the fact that such de novo trial or retrial of the

accused should be ordered in exceptional and rare cases where such

courts becomes indispensable to avert the failure of justice. Keeping in

view this caution, the High Court proceeded to discuss the issue as to 21

whether such a power of directing retrial can be exercised in writ

jurisdiction. Answering this question in affirmative, the High Court took

support of the judgment of Punjab and Haryana High Court wherein it had

taken suo moto cognizance of a matter in which the accused persons

came to be acquitted and the State also did not prefer any appeal against

the acquittal. A news item in this regard was published in The Hindustan

Times dated November 14, 2007 on the basis of which cognizance was

taken and the Court declared trial of the accused persons to be wholly

vitiated and non est in law. While doing so, in exercise of power under

Article 226 of the Constitution of India, the Court had explained the

contours of this power in the following words:

“33. We are conscious of the fact that in the present case, we are essentially exercising our jurisdiction under Article 226 of the Constitution and we are not acting as an appellate court under the provisions of the Code of Criminal Procedure. The question that will, therefore, arise is the availability of the writ power to deal with the situation and to issue necessary and appropriate directions in the matter.

34. The power under Article 226 of the Constitution is incapable of a precise definition as to its contours and extent. The jurisdiction under Article 226 may require a severely circumscribed exercise in a given case though, in another, the use of the power could be wide and expansive. The extent to which the writ power is to be exercised will depend upon the facts of a given case, though the ultimate objective of such exercise would always be to secure justice and to strike at injustice. The Courts, therefore, will have to rise to the occasion or else they may fail as the learned trial Court did in the present case. In a situation where the trial held 22

against the two accused clearly depicts monstrous perversities and gross abuse of process of law and yet no appeal against the acquittal of the two accused had been preferred, the Court can remain a passive onlooker only at the cost of being faulted by posterity. The exercise of the writ jurisdiction to interfere with the verdict of a criminal trial must, therefore, be made. New paths will have to be chartered and innovations made to deal with the myriad situations that may arise from time to time.”

23) The High Court also referred to the decision in the case of Ayodhya

Dube v. Ram Sumer Singh5, wherein a three-Judge Bench of the

Supreme Court, while explaining the decision in the case of K.

Chinnaswamy Reddy v. State of Andhra Pradesh6 observed that:

“…we only wish to say that the criminal justice system does not admit of ‘pigeon holing’. Life and the Law do not fall neatly into slots. When a court starts laying down rules enumerated (1), (2), (3), (4) or (a), (b), (c), (d), it is arranging for itself traps and pitfalls. Categories, classifications and compartments, which statute does not mention, all tend to make law ‘less flexible, less sensible and less just.’”

24) Many more judgments touching upon the expansive powers of the

Constitutional Courts under Articles 32 and 226 of the Constitution of India

are also cited and argument of the counsel for the accused persons that

High Court should not indict the trial court proceedings at this stage is

brushed aside with the following discussion:

“85. In view of the above, the contention canvassed on behalf of the accused persons that the writ application under Article 226 of

5 6 23

the Constitution of India seeking a retrial even before the pronouncement of the judgment by the Trial Court is not maintainable, is rejected. To tell the writ applicant that he should wait for the final outcome of the trial, and if ultimately, the accused persons are acquitted, he may file an appeal before the Appellate Court will be nothing, but adding insult to the injury. It is a matter of common experience that the criminal appeal, be it one of conviction or acquittal takes years before the same is disposed of finally. The passage of time by itself would prove detriment to the interest of the prosecution. It is very easy for the learned counsel appearing for the accused persons to argue that the Trial Court has to yet appreciate the evidence on record and reach to an appropriate conclusion. In my view, what is left now to appreciate when 105 witnesses outright have been declared hostile. It is the brazen highhandedness on the part of the accused persons which warrants retrial. The distortion in the present case is so brazen that even the worms turned. Ultimately, whatever may be the outcome of the retrial, the Court should not shut its eyes and raise its hands in helplessness saying that what can be done. The witnesses should also be made to realise that they cannot take things lightly and owe a great responsibility when they are appearing before the Court to depose in a trial where the accused persons are charged with a serious offence of murder. If such would be the attitude of the Courts, the judiciary will be reduced to a mere laughing stalk.”

25) The aforesaid thought process is carried further by the High Court

while discussing another related argument of the accused persons,

namely, the prosecuting agency could have preferred an application under

Section 311 of the Cr.P.C. for recalling of the witnesses and further that

even in an appeal, the prosecution was at liberty to pray for leading

additional evidence under Section 391 of the Cr.P.C. and, therefore, the

Court should not order retrial. This argument has also been authoritatively

and emphatically rejected with detailed discussion. We are not taking note 24

of those details as this argument was not pressed before us by the

counsel for the accused persons in their appeals.

26) Summing up the discussion, the High Court concluded that in this

case retrial was the only solution to prevent the miscarriage of justice. In

the process, the High Court has also directed that the Presiding Officer

who was conducting a trial should not be allowed to continue. Since, a

plea was raised by the learned senior counsel appearing for the appellants

that the adverse remarks which are made by the High Court against the

Presiding Officer should be expunged, we are reproducing below the

observations of the High Court in this behalf:

“94. I have reached to the conclusion without any hesitation that retrial is the only solution to prevent the miscarriage of justice. If ultimately retrial is to be ordered, the same should be conducted by any other Presiding Officer because this Court has lost confidence in the present Presiding Officer. I could have observed many things as regards the Presiding Officer, but, for one good reason, I have restrained myself. My observations would have only brought a bad name for this institution. For me, the image and prestige of this institution and the judiciary as a whole is supreme. It is said that the life of law is justice and it is for the Judge to breath life into law. Men of character inspired by high ideals are needed to infuse life and spirit in the skeleton of law. Let the High Court on its administrative side look into the matter.”

27) The aforesaid discussion led to allowing the writ petition and passing

the directions for de novo trial which have already been reproduced.

25 28) We have discussed the judgment of the High Court, impugned in

these appeals, at some length, with a specific purpose in mind. It would

be relevant to point out that the arguments addressed by learned senior

counsel M/s. Mukul Rohatgi, Neeraj Kishan Kaul and N.D. Nanavati

appearing for different accused persons, were the same arguments which

were advanced before the High Court and, therefore, we deemed it proper

to narrate the manner in which the High Court has dealt with these

arguments. Another related objective for discussing the judgment of the

High Court in some detail was that since we are in complete agreement

with the approach of the High Court in the manner in which the issue of

retrial has been dealt with in the facts of this case, it would not be

necessary for us to spell out and restate those very reasons which have

prevailed with the High Court.

29) We may hasten to add that normally such a retrial has to be ordered

by the Appellate Court while dealing with the validity and correctness of

the judgment of the trial court as this power is expressly conferred upon

the Appellate Court by Section 386 of the Cr.P.C. However, in exceptional

circumstances, such a power can be exercised by the High Court under

Article 226 or by this Court under Article 32 of the Constitution of India. In 26

fact, there are judicial precedents to this effect which have already been

mentioned above. There are no shackles to the powers of the

Constitutional Court under these provisions, except self-imposed

restrictions laid down by Courts themselves. But for that, these powers

are plenary in nature meant to do complete justice and to inhibit travesty of

justice. Therefore, we are largely in agreement with the conclusion arrived

at by the High Court to the effect that the present case was one of those

exceptional cases where possibility of witnesses getting hostile because of

inducement or threats cannot be ruled out.

30) We are not suggesting that Mr. Solanki and his nephew are the

persons responsible for the murder of Amit Jethwa. That charge which is

levelled against them and other accused persons has to be proved in the

trial by cogent evidence. We are also mindful of the principle that standard

of proof that is required in such criminal cases is that the guilt has to be

proved beyond reasonable doubt. However, at the same time, it is also

necessary to ensure that trial is conducted fairly where witnesses are able

to depose truthfully and fearlessly. Old adage judicial doctrine, which is

the bedrock of criminal jurisprudence, still holds good, viz., the basic

assumption that an accused is innocent till the guilt is proved by cogent

evidence. It is also an acceptable principle that guilt of an accused is to 27

be proved beyond reasonable doubt. Even in a case of a slight doubt

about the guilt of the under trial, he is entitled to benefit of doubt. All these

principles are premised on the doctrine that ‘ten criminals may go

unpunished but one innocent person should not be convicted”. Emphasis

here is on ensuring that innocent person should not be convicted.

Convicting innocence leads to serious flaws in the criminal justice system.

That has remained one of the fundamental reasons for loading the

processual system in criminal law with various safeguards that accused

persons enjoy when they suffer trials. Conventional criminology has

leaned in favour of persons facing trials, with the main objective that

innocent persons should not get punished.

31) At the same time, realisation is now dawning that other side of the

crime, namely, victim is also an important stakeholder in the criminal

justice and welfare policies. The victim has, till recently, remained

forgotten actor in the crime scenario. It is for this reason that “victim

justice” has become equally important, namely, to convict the person

responsible for a crime. This not only ensures justice to the victim, but to

the society at large as well. Therefore, traditional criminology coupled with

deviance theory, which had ignored the victim and was offender focussed,

has received significant dent with focus shared by the discipline by 28

victimology as well. An interest in the victims of the crime is more than

evident now7. Researchers point out at least three reasons for this trend.

First, lack of evidence that different sentences had differing impact on

offenders led policy-makers to consider the possibility that crime might be

reduced, or at least constrained, through situational measures. This in

turn led to an emphasis on the immediate circumstances surrounding the

offence, of necessity incorporating the role of the victim, best illustrated in

a number of studies carried out by the Home Office (Clarke and Mayhew

1980). Second, and in complete contrast, the developing impact of

feminism in sociology, and latterly criminology, has encouraged a greater

emphasis on women as victims, notably of rape and domestic violence,

and has more widely stimulated an interest in the fear of crime. Finally,

and perhaps most significantly, criticism of official statistics has resulted in

a spawn of victim surveys, where sample surveys of individuals or

households have enabled considerable data to be collated on the extent of

crime and the characteristics of victims, irrespective of whether or not

crimes become known to the police. It is for this reason that in many

recent judgments rendered by this Court 8 , there is an emphasis on the

need to streamline the issues relating to crime victims.

7 8 29

32) There is a discernible paradigm shift in the criminal justice system in

India which keeps in mind the interests of victims as well. Victim oriented

policies are introduced giving better role to the victims of crime in criminal

trials. It has led to adopting two pronged strategy. On the one hand, law

now recognises, with the insertion of necessary statutory provisions,

expanding role of victim in the procedural justice. On the other hand,

substantive justice is also done to these victims by putting an obligation on

the State (and even the culprit of crime) by providing adequate

compensation to the victims9. The result is that private parties are now

able to assert “their claim for fair trail and, thus, an effective ‘say’ in

criminal prosecution, not merely as a ‘witness’ but also as one impacted” 10.

33) That apart, it is in the larger interest of the society that actual

perpetrator of the crime gets convicted and is suitably punished. Those

persons who have committed the crime, if allowed to go unpunished, this

also leads to weakening of the criminal justice system and the society

starts losing faith therein. Therefore, the first part of the celebrated dictum

“ten criminals may go unpunished but one innocent should not be

convicted” has not to be taken routinely. No doubt, latter part of the

9 10 30

aforesaid phrase, i.e., “innocent person should not be convicted” remains

still valid. However, that does not mean that in the process “ten persons

may go unpunished” and law becomes a mute spectator to this scenario,

showing its helplessness. In order to ensure that criminal justice system is

vibrant and effective, perpetrators of the crime should not go unpunished

and all efforts are to be made to plug the loopholes which may give rise to

the aforesaid situation.

34) The position which emerges is that in a criminal trial, on the one

hand there are certain fundamental presumptions in favour of the accused,

which are aimed at ensuring that innocent persons are not convicted. And,

on the other hand, it has also been realised that if the criminal justice

system has to be effective, crime should not go unpunished and victims of

crimes are also well looked after. After all, the basic aim of any good legal

system is to do justice, which is to ensure that injustice is also not meted

out to any citizen. This calls for balancing the interests of accused as well

as victims, which in turn depends on fair trial. For achieving this fair trial

which is the solemn function of the Court, role of witnesses assumes great

significance. This fair trial is possible only when the witnesses are truthful

as ‘they are the eyes and ears’ of the Court.

31

35) We are conscious of the fact that while judging as to whether a

particular accused is guilty of an offence or not, emotions have no role to

play. Whereas, victims, or family of victims, or witnesses, may become

emotive in their testimonies, in a given case, as far as the Court is

concerned, it has to evaluate the evidence which comes before it

dispassionately and objectively. At the same time, it is also a fact that

emotion pervades the law in certain respects. Criminal trials are not

allusive to the fact that many a times crimes are committed in the ‘heat of

passion’ or even categorised as ‘hate crimes’. Emotions like anger,

compassion, mercy, vengeance, hatred get entries in criminal trials.

However, insofar as the Judge is concerned, most of these emotions may

become relevant only at the stage of punishment or sentencing, once the

guilt is established by credible evidence, evaluated objectively by the

Court11. The aforesaid factors, then, become either mitigating/extenuating

circumstances or aggravating circumstances. We make it clear that these

factors have not influenced us. We also expect that the trial court will not

go by such considerations insofar as first stage is concerned, namely,

evaluating the evidence to decide as to whether accused persons are

guilty of the offence or not. That part is to be performed in a totally

objective manner. Reason is simple. The manner in which the murder of 11 32

Amit Jethwa is committed may be cruel or ruthless. However, in the first

instance it has to be examined as to whether the accused persons are

responsible for the said murder or they (or some of them) are innocent.

36) Keeping in mind the aforesaid jurisprudential philosophy of criminal

law, let us examine the events and eloquent facts of this case, with a

deeper sense. A cumulative and non-disjunctive stare at those facts would

amply justify the conclusion of the High Court, and approaching the case

in a right perspective. It would be more so, when examined in the

background in which events took place right from the day of murder of the

complainant’s son. It has come on record that the victim was an activist

who had been taking number of cases which are taken note of by the High

Court in para 4.3 of the impugned judgment. It is also an admitted fact

that the victim Amit Jethwa had filed a Public Interest Litigation (PIL) in the

High Court against illegal mining within 5 kms. radius from the boundary of

the Gir Sanctuary. In that petition, he had pleaded for protection of

environment generally and the biodiversity of Gir Forest, in particular. Mr.

Solanki and his nephew were got impleaded in the said PIL whose names

emerged during the pendency of that petition.

37) After the murder of the said activist, the case was registered with the

Sola Police Station. But the investigation was lackadaisical. The 33

complainant was forced to approach the High Court to seek necessary

directions for proper investigation. The High Court was compelled to

intervene and it transferred the investigation to an independent

investigating agency, i.e., CBI. It is only thereafter that investigation

progressed and chargesheets were filed. It also needs to be borne in

mind that soon after Mr. Solanki was released on bail, application for

cancellation of bail was filed by the complainant with the allegations that

Mr. Solanki was extending threats to the complainant, his family members

as well as witnesses. Even some witnesses complained to this effect.

What is revealing that this application is supported by the CBI affirming the

stand of the complainant to the effect that witnesses are threatened.

38) Trial is expedited on the directions of the Court and witnesses start

turning hostile. It is difficult to say, at least, prima facie, that in the given

scenario, the CBI, during investigation, would have compelled the

witnesses to give statements against the accused persons. In any case,

that is also a matter to be finally tested at the time of trial. However, it is

stated at the cost of repetition that requirement of a fair trial has to be

fulfilled. When the trial takes place, as many as 105 witnesses turn

hostile, out of 195 witnesses examined, is so eloquent that it does not

need much effort to fathom into the reasons there for. However, when the 34

aforesaid facts are considered cumulatively, it compels us to take a view

that in the interest of fair trial, at least crucial witnesses need to be

examined again.

39) Having depicted our thought process which is generally in tune with

the approach adopted by the High Court, we need to enter caveat on two

aspects:

(i) Whether it was a case where entire de novo trial is

necessitated?

(ii) Whether the High Court is justified in passing strictures against the

Presiding Officer of the trial court?

40) Insofar as first aspect is concerned, it transpires that the CBI had

stated before the High Court that de novo trial may not be necessary and

the purpose would be served by recalling 46 witnesses, out of which 8

witnesses are cited as eye-witnesses. We feel that the examination of all

the witnesses once again in de novo trial may not be appropriate in the

circumstances of this case. On the order passed by this Court for

conducting day to day trial, the trial court could record the deposition of

195 witnesses over a period of one year. Obviously, in the process of

giving priority to this case by fixing it for evidence, practically on every 35

working day, same would have happened at the cost of adjourning many

other cases. Directing a trial court to spend this kind of time once again is

a tall order and the same purpose which is sought to be achieved by the

High Court could be served by re-examining only those witnesses which

are absolutely necessary. After all, out of 195 witnesses, if 105 witnesses

have been declared hostile, 90 other witnesses have been examined and

cross-examined and their deposition is not required to be recorded again.

Further, among them, there would be many officials/formal witnesses as

well. Likewise, some of the witnesses though turned hostile, their

testimony may not have much bearing. In this scenario, we had asked Mr.

Nadkarni, learned ASG who appeared for CBI to discuss the matter with

CBI and on objective and fair assessment, give the list of those witnesses

afresh deposition whereof is absolutely essential. After undertaking the

aforesaid exercise and on instructions from CBI, Mr. Nadkarni stated that

apart from 8 eye-witnesses, 18 more witnesses need to be necessarily

examined. Out of those, 15 persons are witnesses for circumstantial

evidence and 3 are panch witnesses relating to various panchnamas. He

was categorical that when all 8 eye-witnesses are examined afresh along

with other 18 witnesses as aforesaid, it would subserve the purpose for

which trial is reordered. Mr. Rohatgi, in response, had stated, without 36

prejudice to this contention that no such retrial was necessary at all,

direction should be confined to 8 eye-witnesses only if at all some

witnesses need to be re-examined. Since we have rejected the contention

of the learned counsel of the accused persons on the merits of the case,

we are of the opinion that 26 witnesses, list whereof was furnished by Mr.

Nadkarni in the Court with copies to the learned counsel for the accused

persons, should be re-examined.

41) Coming to the second aspect of remarks against the Judge, no fault

can be formed about the general observations of the High Court about the

role of the trial court judge who is not supposed to be a mute spectator

when he finds that witnesses after witnesses are turning hostile. Following

general comments are made by the High Court in this behalf:

“86. Criticizing the sharp decline of ethical values in public life even in the developed countries much less developing one, like ours, where the ratio of decline is higher is not going to solve the problem. Time is ripe for the Courts to take some positive action. Sections 195 and 340 of the Cr. P.C. could hardly be termed as the effective measures to combat with the menace of the witnesses turning hostile. If the witnesses have been won over in one way or the other, they are bold enough to even face the prosecution under Section 340 of the Cr. P.C. However, the same ultimately does not serve any purpose because the guilty goes unpunished. In the recent times, the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a sharp judgment so as to achieve the yardstick of disposal. These days when crime is looming large and humanity is suffering and society is so much affected thereby, the duties and 37

responsibilities of the Courts have become much more. Now the maxim let hundred guilty persons be acquitted, but not a single innocent be convicted’ is, in practice, changing world over and the Courts have been compelled to accept that the ‘society suffers by wrong convictions and it equally suffers by wrong acquittals’. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. The need of the hour is ‘robust judging’. The trial Judge is the linchpin in every case, and he has also its eyes and ears. He is not merely a recorder of facts, but a purveyor of all evidence, oral and circumstantial. It is said that a good trial Judge needs to have a ‘third ear’ i.e. hear and comprehend what is not said. When a material eyewitness, one after the other start resiling from their statements made before the police, this must obviously excite suspicion in the mind of the trial Judge to probe further and question the witness (even if the prosecutor does not do so).

(emphasis supplied)”

42) At the same time, condemnation of the Presiding Officer and going

to the extent of damning him, albeit, in an oblique manner, may not be

justified in the facts of this case. No doubt, it was expected of the

Presiding Judge to play more active and positive role. However, if error is

committed on that front, it is also not appropriate to arrive at other extreme

conclusions against that Presiding Officer in the absence of any cogent

evidence against him. We were also informed that the said Presiding

Officer is at the verge of retirement and is going to retire within a couple of

months, after rendering long service of more than 30 years. This Court

has time and again stated that the High Court should not lightly pass 38

strictures against the judges in the subordinate judiciary {See – Awani

Kumar Upadhyay v. High Court of Judicature of Allahabad and

Others12 and Amar Pal Singh v. State of Uttar Pradesh and Another13}.

43) At the time of hearing, we were informed that in routine transfers of

judicial officers, the Presiding Officer who was dealing with this matter

stands transferred to another city in the State of Gujarat. Therefore, it was

agreed by learned counsel for the accused persons as well that, for this

reason alone, he ceases to be the Presiding Officer of CBI, Court No. 4,

Ahmedabad and, therefore, would not be dealing with this matter in any

case. But, we feel that direction to take up the matter against him on

administrative side does not seem to be appropriate.

44) Accordingly, we dispose of the appeals with modification of the

direction of the High Court in respect of aforesaid two aspects. In the first

instance, instead of entire de novo trial, only 26 witnesses would be

examined afresh as per the list furnished by the CBI. Secondly, direction

to look into the matter against the Presiding Judge on administrative side

of the High Court is set aside.

45) With this, we advert to the application filed by the complainant for 12 13 39

cancellation of bail. As mentioned above, application for cancellation of

bail has been filed on the ground that Mr. Solanki had been threatening

the witnesses; threats have been extended to the complainant and his

family members as well for whose protection CBI had written to the DGP,

Gujarat and it is also stated that apprehension of the complainant

expressed earlier which can be discerned from the events that have taken

place. Coupled with that, a very pertinent and significant factor is that

even CBI has affirmed the aforesaid plea of the complainant with

categorical assertion that the witnesses are threatened by Mr. Solanki. In

this scenario, prima facie case for cancellation of bail has been made out.

In this behalf, we may usefully refer to the following discussion in State of

Bihar v. Rajballav Prasad Alias Rajballav Prasad Yadav Alias

Rajballabh14:

“23. Keeping in view all the aforesaid considerations in mind, we are of the opinion that it was not a fit case for grant of bail to the respondent at this stage and grave error is committed by the High Court in this behalf. We would like to reproduce following discussion from the judgment in Kanwar Singh Meena v. State of Rajasthan (SCC pp. 186 & 189, paras 10 & 18)

“10. … While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail 14 40

suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail.

***

18. Taking an overall view of the matter, we are of the opinion that in the interest of justice, the impugned order granting bail to the accused deserves to be quashed and a direction needs to be given to the police to take the accused in custody.”

24. As indicated by us in the beginning, prime consideration before us is to protect the fair trial and ensure that justice is done.

This may happen only if the witnesses are able to depose without fear, freely and truthfully and this Court is convinced that in the present case, that can be ensured only if the respondent is not enlarged on bail. This importance of fair trial was emphasised in Panchanan Mishra v. Digambar Mishra, while setting aside the order of the High Court granting bail in the following terms: (SCC pp. 147-48, para 13)

“13. We have given our careful consideration to the rival submissions made by the counsel appearing on either side. The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail 41

order from tampering with the evidence in the heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the interest of the prosecution. It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.”

25. Such sentiments were expressed much earlier as well by the Court in Talab Haji Hussain v. Madhukar Purshottam Mondkar in the following manner: (AIR p. 379, para 6)

“6. … There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked.”

46) In this hue, we need to examine as to whether purpose can be

served by banning the entry of Mr. Solanki in the city of Gujarat. It was 42

passionately argued by Mr. Rohatgi that during the period aforesaid

witnesses are examined, Mr. Solanki can be barred from entering Gujarat.

He even offered that Mr. Solanki would remain in Delhi during that period.

In normal circumstances, we would have accepted this suggestion of Mr.

Rohatgi. For examining this argument, we have to keep in mind the

principle laid down by this Court in Masroor v. State of Uttar Pradesh

and Another15, expressed in the following words:

“15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In this context, the following observations of this Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan are quite apposite: (SCC p. 691, para 6)

“6. … Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.”

We, thus, require to adopt a balancing approach which takes care of

right of liberty of Mr. Solanki as an undertrial and at the same time the

interest of the society in general, viz., the fair trial is also fulfilled.

15 43 47) Going by the exceptional circumstances in which retrial is ordered by

the High Court, and is being maintained in principle, with only modification

that instead of all witnesses, 26 witnesses would be re-examined, we are

of the opinion that in order to ensure that there is a fair trial in literal sense

of the term, at least till the time eight eye-witnesses are re-examined, Mr.

Solanki should remain in confinement and he be released thereafter with

certain conditions, pending remaining trial. We, therefore, dispose of

Criminal Miscellaneous Petition No. 14006 of 2015 with the following

directions:

a) Bail granted to Mr. Solanki by this Court vide order dated February 25,

2014 stands cancelled for the time being. He shall be taken into

custody and shall remain in custody during the period eight

eye-witnesses are re-examined.

b) The trial court shall summon 26 witnesses who are to be examined

afresh. In the first instance, 8 eye-witnesses shall be summoned and

examined on day to day basis. Once their depositions in the form of

examination-in-chief and cross-examination are recorded, Mr. Solanki

shall be released on bail again on the same terms and conditions on

which he was granted bail earlier by this Court by order dated February

25, 2014. After Mr. Solanki comes out on bail, there shall be an 44

additional condition, namely, till the recording and completion of the

statements of other witnesses, he shall not enter the State of Gujarat.

To put it clearly, after Mr. Solanki is released on bail, he shall

immediately move out of the State of Gujarat and shall not enter the

said State till the completion of remaining evidence, except on the days

of hearing when he would be appearing in the court. It will be open to

the trial court to add any further conditions, if the circumstances so

warrant.

c) The trial court shall also endeavour to record the remaining evidence as

well as expeditiously as possible by conducting the trial on day to day

basis.

49) Appeals and applications stand disposed of in the aforesaid terms.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI;

OCTOBER 30, 2017