Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.492 OF 2014 (Arising out of SLP (Crl.) No. 8406 of 2012)

Dinubhai Boghabhai Solanki               …

Appellant  

VERSUS

State of Gujarat & Ors.             

...Respondents

WITH

CRIMINAL APPEAL NO. 493 OF 2014 (Arising out of SLP (Crl.) No. 8292 of 2012)

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This special leave petition impugns the judgment and  

order  dated  25th September,  2012  passed  by  the  

Gujarat High Court at Ahmedabad in Special Criminal  

Application  No.1925  of  2010.  By  the  aforesaid  

judgment,  the  High  Court  has  directed  that  the  

investigation  into  the  death  of  Amit  Jethwa  

1

Page 2

(hereinafter  referred  to  as  ‘Jethwa’),  a  Right  to  

Information  activist  be  investigated  by  the  CBI  

authorities and further directing that the proceedings  

pursuant  to  the  charge  sheet  submitted  by  the  

Gujarat Police shall remain stayed.

2. The  facts  leading  to  the  filing  of  the  special  leave  

petition  out  of  which  the  present  criminal  appeal  

arises are as under:

Jethwa  had  filed  a  Public  Interest  Litigation,  SCA  

No.7690 of 2010, against the State of Gujarat and others  

with the following prayer:

“The  appellant  therefore  prays  that  your  

Lordship may be pleased to:

a. Admit this petition.

b. Issue  a  writ  of  mandamus  or  writ  in  the  

nature  of  mandamus  or  any  other  

appropriate writ order or direction directing  

the respondents to stop illegal mining within  

5  kms  radius  from  boundary  of  Gir  

2

Page 3

Sanctuary.”

3. In the aforesaid writ petition, Jethwa had given details  

of various activities of certain firms and individuals  

who were indulging in illegal mining and destroying  

the  biodiversity  of  natural  habitat  of  Gir  forest  in  

Gujarat.  This,  according  to  Jethwa,  was  having  an  

adverse effect on the natural habitat of the Asiatic  

Lions.  He  was  particularly  concerned  with  illegal  

mining within 5 kms radius from the boundary of Gir  

Sanctuary Area. More than 50 mines in the names of  

different persons were mentioned in the writ petition  

wherein illegal mining was alleged.  Enquiry into the  

allegations made by Jethwa was in progress in the  

aforesaid  writ  petition,  when  he  was  brutally  

murdered.

4. Jethwa was the President of the Gir Nature Youth Club  

at Khamba, Gujarat. He had been active in fighting  

against  encroachment  of  forests  and poaching.  He  

was also instrumental in the successful prosecution  

3

Page 4

of the actor Salman Khan for shooting an endangered  

Chinkara deer. He had also taken up cudgels against  

the actor  Aamir  Khan when a  deer  was used in  a  

scene in the movie Lagaan. Apart from this, Jethwa  

rigorously  campaigned  against  corruption  among  

officers of the Indian Forest Service and opposed the  

mala  fide application  of  Article  356  of  the  

Constitution of India. In 2007, he had drawn attention  

to                                the mysterious death of lions  

in  the  Gir  Forest,  including  three  that  were  shot  

within a few hundred meters of the Babariya forest  

guard outpost. Jethwa had claimed that “such a thing  

cannot  be possible  without  support  of  some forest  

officials”. On that basis, he had sought suspension of  

a particular IFS Officer. The incident ultimately led to  

the  uncovering  of  a  large  lion  poaching  gang.  He  

later campaigned against shifting of lions to the Kuno  

Wildlife Sanctuary in Madhya Pradesh.  According to  

him, his efforts were often blocked by forest officials  

by charging him with offences such as photographing  

4

Page 5

a  dead  lion  and  trespassing.  In  2007,  Jethwa  

contested the State Assembly elections against the  

appellant herein, but lost. In 2008, Jethwa was very  

actively  involved  in  spreading  awareness  about  

effectiveness  of  the  Right  to  Information  Act  for  

addressing grievances, and conducted workshops on  

the procedure to file requests under RTI, to prevent  

corrupt  practices  and  other  mal-administration.  In  

2010,  Jethwa  had  filed  a  Public  Interest  Litigation  

(writ  petition)  questioning  the  inaction  of  State  

Government over the appointment of Lokayukta. The  

High  Court  directed  the  Government  to  appoint  

Lokayukta. He had also spearheaded the campaign  

against  rising  case  pendency  in  the  Gujarat  

Information  Commission  due  to  lack  of  

commissioners. It was on his petition that the High  

Court  gave  direction  to  the  State  Government  to  

complete the appointments within a stipulated time.  

He again  came to  the rescue of  RTI  applicants  by  

filing a writ petition in the High Court and made the  

5

Page 6

Government accept Indian Postal Order as one of the  

modes  of  payment  to  deposit  fees  while  filing  the  

Right to Information applications.  

5. We  have  narrated  these  facts  just  to  indicate  that  

Jethwa was a well known social activist interested in  

the  protection  of  environment,  generally  and  the  

biodiversity  of  Gir  Forest,  in  particular.  This,  

according to him, was urgently needed to protect the  

Asiatic Lions, apart from usual environmental issues.

6. During the pendency of the public interest litigation  

filed by Jethwa, the name of the appellant and his  

nephew emerged as  the  powers  behind  the illegal  

mining  mafia.  Therefore,  by  order  dated  6th July,  

2010,  the  appellant  and  his  nephew  Pratap  Bhai  

Solanki  were  impleaded  by  the  High  Court  as  

respondents.  The  order  dated  6th July,  2010  was  

served on the appellant on 19th July, 2010.  

7. It is the allegation of the father of Jethwa (hereinafter  

6

Page 7

referred to as ‘Respondent No.6’) that the appellant  

was so incensed on being made a party in the Public  

Interest Litigation filed by Jethwa and the information  

that  had  surfaced  during  the  course  of  hearing  of  

that writ  petition that he contracted/conspired with  

some  unknown  persons  to  eliminate  Jethwa.  In  

pursuance of this conspiracy, Jethwa was shot dead  

on the very next day, i.e. 20th July, 2010.  

8. According  to  the  appellant,  on  the  same  date,  i.e  

20th July,  2010,    the   electronic  media  began  

broadcasting  allegations  of  the  Respondent  No.  6  

and some other interested parties that the appellant  

was behind the killing of Jethwa. Incidentally, it must  

be noticed at this stage that according to the version  

of Respondent No.6, the murder took place outside  

the Gujarat High Court whilst Jethwa was leaving the  

chambers of his lawyer at 8.30 at night. In fact, the  

Press  Statement  was  given  on  21st July,  2010  by  

Dhirsinh  Barad,  a  rival  Congress  MLA  that  the  

appellant  might  be  involved  in  the  murder.  

7

Page 8

Subsequently, when the statement of this MLA was  

recorded in the High Court on 26th February, 2012,  

wherein he has stated that                 on 20 th July,  

2010  he had communicated to  Shri  B.M.Mangukia,  

Advocate  who incidentally  was also  a  Secretary  of  

Gujarat Congress, that as per his belief the appellant  

was  involved  in  the  murder  of  Jethwa.  The  

investigation was conducted in accordance with the  

procedure  prescribed  in  the  Criminal  Procedure  

Code.  

9. It appears that the Respondent No 6 was not satisfied  

and he filed Special Criminal Application No.1925 of  

2010  before  the  High  Court.  In  this  petition,  

Respondent No.6 sought transfer of the investigation  

in connection with FIR No. I-CR No.163/2010 dated  

20th July,  2010 registered at Sola Police Station for  

commission  of  offences  punishable  under  Sections  

302, 114 of IPC read with Section 25(1) of Arms Act,  

to  an independent investigating agency,  preferably  

8

Page 9

CBI  or  Special  Investigation  Team  comprising  IPS  

Officers  from  other  State  cadre  as  well.  On  19th  

October,  2011,  the  Gujarat  High  Court  passed  the  

interim  order  directing  further  investigation  to  be  

conducted  by  the  State  of  Gujarat  under  the  

supervision of Special Commissioner of Police Crime  

Branch (of the rank of Additional Director General of  

Police) and to submit a final report of investigation  

by  28th November,  2011.  In  passing  the  aforesaid  

order, it is pointed out by the appellant herein that,  

no adverse remarks with any pre-drawn conclusions  

were made against him.  

10. In pursuance of the aforesaid order, the investigation  

was  handed  over,  on  11th November,  2011,  to  

another officer, Shri Vatsa, Superintendent of Police.  

The final report was submitted on 16th March, 2012  

under Section 173(8) Cr.P.C.  It  was pointed out by  

the  appellant  that  nothing  beyond  mere  suspicion  

had come on the record against the appellant so as  

9

Page 10

to  make  him  accused  of  any  conspiracy  to  

assassinate  the  deceased  Jethwa.  On  19th March,  

2012,  the  final  report  of  further  investigation  was  

filed  before  the High Court  on behalf  of  the  State  

Government.  The appellant  claims that in spite of  

extensive  investigation,  no  circumstantial  evidence  

pointing out  any involvement of  the appellant  was  

gathered, despite the grave suspicion of the relatives  

of Jethwa and certain political rivals. However, due to  

the  pressure  exerted  by  the  relatives  of  the  

deceased and certain political rivals, a third charge-

sheet was filed in the FIR.   

11. In the order impugned before us, the High Court upon  

consideration of the entire matter has come to the  

conclusion  that  investigation  conducted  by  the  

Gujarat Police authority is not free from doubt and  

that  to  instill  confidence in  the public,  it  would be  

appropriate to transfer the investigation to CBI.

12.    The  present  SLP  was  filed  in  this  Court  on  8th  

October, 2012. Notice was issued in the SLP on 15th  

10

Page 11

October, 2012. The investigation by the CBI was not  

stayed.  The  State  of  Gujarat  had  filed  SLP  (Crl.)  

NO.8292 of 2012 also challenging the transfer of the  

investigation to CBI.            This SLP was filed on 15th  

October,  2012.  We  may  also  notice  here  that  

Narendra Modi, who was then holding the portfolio of  

Home Ministry in Gujarat as well as being the Chief  

Minister, was also impleaded as appellant No.2 in SLP  

(Crl.) 8292 of 2012. However, subsequently, he was  

deleted from the array of  parties,  by order  of  this  

Court                       dated 9th November, 2012.

13.Leave granted.

14.Mr. Rohatgi, learned senior counsel appearing for the  

appellant  after  making extensive references to the  

relevant  parts  of  the  impugned  judgment  has  

submitted  that  the  High  Court  has  made  

unwarranted  remarks  against  the  appellant  which  

are bound to gravely prejudice his case at the trial.  

11

Page 12

These remarks have been made in the absence of  

the appellant.  The High Court did not make him a  

party; and has given an ex-parte judgment against  

the  appellant.  It  is  per  se illegal  and,  therefore,  

deserves to be set aside.  He submits that the matter  

has to be remanded back to the High Court with the  

direction that the appellant be made a party in Writ  

Petition  SCA  No.1925  of  2010.  Thereafter  the  writ  

petition  be  re-heard  and  decided  on  merits  in  

accordance with law.  

15.Mr.  Rohatgi  then  submitted  that  the  appellant  had  

been summoned to appear as a witness before the  

CBI. Apprehending that the appellant will be arrested  

as soon as he appears before the CBI in response to  

the summons,                                      Criminal Misc.  

Petition No.22987 of 2013 was filed by him seeking  

direction from this Court that the appellant will not  

be arrested in case he appears before the CBI. The  

actual prayer made in the Application was that this  

12

Page 13

Court  be  pleased  to  “grant  stay  of  any  coercive  

action against the appellant prejudicing his life and  

personal liberty,  pursuant to the impugned ex part  

judgment  dated 25.09.2012 passed by the  Gujarat  

High  Court  in  SCA 1925 of  2010 wherein  CBI  was  

inter alia directed to investigate and file report within  

6  months.”  This  Court  did  not  accept  the  prayer  

made  by  the  appellant.  As  apprehended  by  the  

appellant,  he  was  immediately  arrested,  when  he  

appeared  before  the  CBI,  in  response  to  the  

summons to join the investigation.  

16.  This action of the CBI, according to Mr. Rohatgi, was  

wholly  illegal.  The  appellant  had been  cooperating  

with the investigation throughout. The arrest of the  

appellant was politically motivated.  

17.   On 17th April, 2013, Status Report of the investigation  

by  the  CBI  was  produced  before  this  Court  by  

Mr.  Sidharth  Luthra,  learned  Additional  Solicitor  

General.  After  perusal  of  the  report,  the  court  

13

Page 14

directed the same to be re-sealed and kept with the  

record. The matter was adjourned from time to time  

to  enable  the  CBI  to  complete  the  investigation.  

Since his arrest, the appellant was initially remanded  

to  police  custody.  Subsequently,  however,  he  was  

placed in judicial custody. The appellant continues to  

be in jail till date. On 19th November, 2013 when the  

matter  came  up  for  further  consideration,  a  

submission  was  made  on  behalf  of  the  CBI  that  

“although  the  appellant  is  now  not  required  for  

custodial interrogation, judicial custody needs to be  

continued as the investigation is still not complete.”  

A request was made that the matter be adjourned for  

at least six weeks to enable the CBI to complete the  

investigation in relation to the appellant.  Since the  

appellant had been in custody for a long time, it was  

prayed that he should be released from custody. It  

was pointed out that the appellant was required to  

perform his official duties as an elected member of  

the  Parliament.  However,  the  request  of  the  

14

Page 15

appellant  was  rejected  and CBI  was granted some  

more  time  to  complete  the  investigation.  It  was  

made clear by this Court that the aforesaid direction  

would  not  preclude  the  CBI  to  seek  custodial  

interrogation of the appellant, as and when required.  

Thereafter,  the matter was adjourned from time to  

time.  

18.Mr.  Rohatgi  then  submitted  that  in  breach  of  the  

directions issued by this  Court  on 17th April,  2013,  

the CBI  has filed a supplementary charge sheet in  

January, 2014, before the ACJM, Ahmedabad, instead  

of  placing the report  before this  Court  in  a sealed  

cover.  Relying  on  these  facts,  Mr.  Rohatgi  has  

submitted  that  the  action  of  the  CBI  is  in  

disobedience  of  this  order  of  this  Court,  and  

therefore,  the  charge  sheet  itself  needs  to  be  set  

aside, as it has been filed without the permission of  

this Court.  

19.Mr. Rohatgi then submitted that in case the aforesaid  

15

Page 16

submissions  are  not  accepted,  the  prejudicial  

remarks  made  against  the  appellant  need  to  be  

expunged as the remarks have been made without  

making him a party. He submitted that the remarks  

have damned the appellant as the main conspirator.  

Such adverse remarks, according to             Mr.  

Rohatgi, can have no legal effect, having been made  

in breach of the Rules of Natural Justice i.e. the rule  

of  audi  alteram  Partem. He  pointed  out  that  the  

appellant has also been referred to as accused No.1,  

without any justification.  

20.Mr. Rohatgi emphasized that the judgment is replete  

with prejudicial remarks. He has been described as a  

person  with  criminal  antecedents.  He  is  stated  to  

have  been  involved  and  named  in  several  police  

complaints  and FIRs  for  serious  offences,  including  

attempt to murder and murder. The High Court has  

also  observed  that  many  offences  have  been  

committed at the behest of the appellant. But almost  

all  such  complaints  and  FIRs  have  terminated  in  

16

Page 17

summary reports.  A long list of the cases in which  

the appellant has been found to be not involved was  

placed before  the  High  Court.  The High  Court  has  

further observed that the crusade of the deceased  

Jethwa  against  the  illegal  empire  of  the  appellant  

herein was the cause for the murder of Jethwa. The  

High Court also observed that the appellant herein  

was managing the                              entire  

investigation.   The  police  did  not  even  record  the  

statements of numerous persons as the statements  

would  have  pointed  an  accusing  finger  at  the  

appellant  for  being  responsible  for  the  death  of  

Jethwa. Relying on the observations recorded in the  

judgment, Mr. Rohatgi submits that unless the same  

are expunged the appellant cannot possibly expect a  

fair trial.  

21.Mr. Rohatgi has relied on the following judgments in  

support of his submission.  

17

Page 18

Divine Retreat Centre Vs.  State of Kerala  1  ;  D.  

Venkatasubramaniam Vs.  M.  K.  Mohan  

Krishnamachari  2  ;   State of Punjab Vs.  Davinder  

Pal  Singh  Bhullar  &  Ors.  3  ;  Ms.  Mayawati Vs.  

Union  of  India  &  Ors.  4  ;  Union  of  India Vs.  

W.N.Chadha  5  .   

22.Lastly,  it  is  submitted  by  Mr.  Rohatgi  that  the  

appellant  has  been  firstly  in  police  custody  and  

subsequently in judicial custody since the arrest on  

5th November, 2013 till now. The appellant is a sitting  

Member  of  the  Parliament  and  has  to  perform his  

duties  as  an  MP in  the  Parliament,  as  well  as  his  

Constituency.  The  appellant  has  been  cooperating  

with  the  investigation  throughout.  There  is  no  

likelihood  of  the  appellant  absconding  as  he  has  

deep roots in society, particularly in the area that is  

represented  by  him  as  an  MP  in  the  Parliament.  

1 (2008) 3 SCC 542 2 (2009) 10 SCC 488 3 2012 Criminal Law Journal 1001 4 (2012) 8 SCC 106 5 (1993) Supp.4 SCC 260

18

Page 19

Learned  senior  counsel  further  submitted  that  

although CBI has filed the charge sheet, copies of all  

the  statements  of  witnesses  have  not  been  made  

available to the appellant, on the ground that it is a  

very sensitive matter. According to Mr. Rohatgi, the  

CBI  has  wrongly  relied  on  Section  173(6)  of  the  

Cr.P.C. He reiterated that the arrest of the appellant  

was  totally  illegal  as  it  is  in  disobedience  of  the  

orders passed by this Court on 15th March, 2013; 10th  

April,  2013  and  17th April,  2013.  He  has  also  

reiterated  the  submission  that  the  appellant  has  

been  arrested  maliciously  as  a  result  of  political  

vendetta.   Mr.  Rohatgi  also  submitted  that  

apprehending the arrest,  the appellant  had moved  

Criminal  Misc.  Petition No. 22987 of 2013,  but this  

Court had declined to give any directions.  

23.He  also  pointed  out  that  the  appellant  has  been  

elected as Member of Legislative Assembly, Gujarat  

for  three  terms.  Thereafter,  the  appellant  has  

19

Page 20

successfully contested the Parliamentary election as  

an official candidate of the BJP. Therefore, as it was  

found by his political rivals that the appellant cannot  

be  destabilized  by  a  popular  vote,  he  is  being  

dragged into this case to cause maximum damage to  

his image and political career.   Mr.  Rohatgi further  

pointed out that the timing of issuance of summons  

by the CBI coincided not only with the Diwali festival  

but, also with the ensuing Parliamentary election, as  

well  as  the  assembly  election  which  had  been  

declared  in  five  States.  He  submitted  that  the  

appellant, therefore, reasonably apprehends that the  

opposition  is  trying  to  maliciously  gain  maximum  

political  mileage,  by  getting  him  involved  in  the  

murder case.  

24.Learned senior counsel further pointed out that on the  

one hand, the family of the appellant was grieving  

due to the death of his elder brother on 8th October,  

2013; on the other hand, the letter of the CBI dated  

20

Page 21

25th October, 2013 was handed over to his younger  

brother  asking  the appellant  to  remain  present  on  

29th October, 2013                  at 11.00 a.m. before  

the Investigating Officer. The family members of the  

appellant on the date of the filing of the application,  

i.e. 28th October, 2013, were occupied with the after-

death  ceremonies  of  his  deceased  brother.  At  the  

same  time,  immediately  with  the  issuance  of  the  

summons  by  the  CBI,  adverse  media  trial  and  

propaganda  had  started  in  various  news  channels  

and the Newspapers against the appellant. It is also  

pointed  out  by  Mr.  Rohatgi  that  the  CBI  has  

commenced the investigation in  October  2012 and  

since  then  the  appellant  has  continued  to  be  in  

active public life. He has also attended Parliament as  

a Member of the Parliament in the 13th, 14th and 15th  

Session  of  the  Lok  Sabha  held  on  4th September,  

2013, 5th September, 2013 and 6th September, 2013.  

The appellant has also participated in various public  

welfare functions during this period. In spite of the  

21

Page 22

aforesaid, the appellant has been illegally deprived  

of his personal liberty and fundamental rights under  

Articles 14 and 21 of  the Constitution of  India.  He  

reiterated  that  the  appellant  had  made  a  prayer  

in Crl. M.P. No. 22987 of 2013 that no coercive steps  

be  taken  against  the  appellant.  Since  the  prayer  

made by  the  appellant  was  not  accepted,  the  CBI  

used this as an excuse to arrest the appellant. Given  

the entire fact situation as narrated above and the  

fact that the appellant has not been given copies of  

all the statements collected by the CBI, there is little  

likelihood  of  the  appellant  tampering  with  the  

evidence.  Since  the  CBI  has  submitted  the  charge  

sheet,  the  investigation  is  complete.  Therefore,  it  

would be in the interest of justice that the appellant  

is now released on bail, during the pendency of the  

trial.  

25.   Mr. J.S. Attri, learned senior counsel, appearing for  

the  CBI  has  submitted  that  the  status  report  has  

22

Page 23

been submitted to this Court. Upon completion of the  

investigation,  the  charge  sheet  has  also  been  

submitted in court. It is further submitted that there  

is no violation of the orders dated 15th March, 2013,  

10th April, 2013 and the order dated 17th April, 2013,  

which  directed  that  the  report  produced  by  the  

Additional Solicitor General be sealed and kept with  

the record. There is no direction to the CBI not to file  

the charge sheet without leave of the court.

26.     Ms. Kamini Jaiswal appearing for respondent No.6  

has  submitted  that  the  question  as  to  whether  the  

appellant  was  required  to  be  heard  before  the  

investigation  is  transferred  to  the  CBI  is  no  longer  res  

integra.  She  submitted  that  the  State  hierarchy  was  

actively involved in  influencing the investigation by the  

State  Police,  which  is  evident  from  the  fact  that  Mr.  

Narendera Modi was Appellant No.2 in Criminal Appeal No.  

_______@ SLP (Crl.) No.8292 of 2012. He was subsequently  

deleted from the array of parties by an order of this Court.  

23

Page 24

His removal from the array of parties makes no difference.  

Ms. Jaiswal has submitted that in fact the appellant has no  

locus  standi to  file  the  present  appeal.  At  the  most,  

according to her, he is a proposed accused or a suspect.  

She  submits  that  it  is  a  settled  proposition  of  law  and  

criminal jurisprudence that an accused has no right to be  

heard at the stage of investigation. The appellant in the  

present case is a potential suspect. Therefore, he has no  

locus standi to challenge the judgment of the High Court,  

transferring the investigation to the CBI in exercise of its  

powers under Section 173(8) of the Cr.P.C. She submits  

that the High Court has come to a prima facie conclusion  

that the original investigation and the further investigation  

are  far  from  satisfactory.  Both  investigations  lacked  

transparency  and,  therefore,  the  Court  has  rightly  

concluded that the investigation conducted by the State  

Police  did  not  inspire  confidence.  She  submits  that  the  

High  Court  has  committed  no  error  in  not  making  the  

appellant a party in the writ petition filed by respondent  

No.6 seeking transfer of the investigation from the State  

24

Page 25

Police  and  the  Special  Commissioner,  Crime  Detection  

Branch, Ahmedabad to the CBI. The rule of  audi alteram  

partem would not be applicable at that stage. She submits  

that the investigation has to be conducted in accordance  

with  Sections  154  to  176  of  the  Cr.P.C.,  wherein  no  

provision is made for the applicability of the concept of  

audi alteram partem.  In other words, at no stage till the  

charge  sheet  is  submitted  the  suspect  or  proposed  

accused can claim any constitutional or legal right to be  

heard.  In support  of  her submissions,  she relied on the  

judgment of this Court in W. N. Chadha (supra), Central  

Bureau of Investigation & Anr. Vs.  Rajesh Gandhi &  

Anr.6,  Sri  Bhagwan  Samardha  Sreepada  Vallabha  

Venkata Vishwanandha Maharaj Vs.  State of A.P. &  

Ors.  7  ,  Narender G. Goel Vs.  State of Maharashtra &  

Anr.8  She  also  relies  on  the  judgment  in  the  case  of  

Divine Retreat (supra).

27.  She  further  submitted  that  even  though the  High  6 (1996) 11 SCC 253 7 (1999) 5 SCC 740 8 (2009) 6 SCC 65

25

Page 26

Court  has  given  elaborate  details  in  support  of  the  

conclusions to transfer the investigation to CBI, it does not  

mean that the remarks were not necessary for coming to  

such a conclusion. She submits that the facts in this case  

were glaring. Jethwa has relentlessly campaigned against  

illegal mining within the prohibited 5 km zone of the Gir  

Forest Sanctuary. This sanctuary is the only habitat of the  

Asiatic  Lions.  Jethwa  had  managed  to  uncover  a  deep  

rooted  conspiracy  to  continue  illegal  mining  in  the  

prohibited zones. He was in possession of evidence which  

would  have  directly  linked  the  appellant  to  the  illegal  

mining. The appellant and his nephew were impleaded as  

parties  in  the  public  interest  litigation,  SCA No.7690  of  

2010 by order dated 6th July,  2010. The aforesaid order  

was served on the appellant on 19th July, 2010. Within 24  

hours Jethwa was killed whilst he was coming out of the  

chamber of his lawyer.  

28. She further pointed out that a perusal of the judgment  

of  the  High  Court  would  show  that  the  investigation  

26

Page 27

conducted  by  the  State  Police  and  subsequent  further  

investigation was wholly tainted and one sided. Therefore,  

the High Court had rightly transferred the case to the CBI.  

She further submitted that the remarks made by the High  

Court were wholly justified for coming to the conclusion  

that the investigation must be transferred to the CBI to  

inspire confidence.  

29.  She next submitted that the investigation has been  

completed  and  the  charge  sheet  has  been  filed.  The  

appellant will  have full  opportunity to defend himself  at  

the trial. She submitted that the present appeal deserves  

to be dismissed as having become infructuous.  

30.  Lastly, she submitted that although the appellant is  

an  MP  he  is  involved  in  several  criminal  cases.  His  

influence is so pervasive that he has been declared to be  

innocent in all the other criminal cases, excepting one. It  

is only in the present case that he is sought to be put on  

trial.  She  has  submitted  that  even  the  nephew  of  the  

appellant  Shiva  Solanki  was  only  arrested  on  7th  

27

Page 28

September,  2010;  he had been absconding for  45 days  

whilst  the  investigation  was  in  progress.  The  further  

investigation conducted by Sh. Vatsa, IPS, Superintendent  

of Police has been found to be tainted by the Court. The  

High Court found that the facts stated by Sh. Vatsa in the  

final report did not inspire confidence as it did not even  

point  out  the  close  proximity  of  Shiva  Solanki  and  the  

appellant.  These  reports  also  point  out  the  interaction  

between  the  uncle  and  nephew  before  and  after  the  

crime.  In  fact,  Vatsa  never  applied  for  custodial  

interrogation of the appellant. She further submitted that  

the High Court noticed that the police man who is the first  

informant  can  not  be  an  eye  witness  to  the  incident.  

Surprisingly, the FIR was not recorded at the instance of  

any  member  of  his  family.  She  submits  that  the  High  

Court has correctly come to the conclusion that the initial  

and further investigations suffered from so many lapses  

and lacunae that it could not possibly inspire confidence.  

31.  Opposing the prayer for bail, Ms. Jaiswal submitted  

28

Page 29

that  the  appellant  is  a  very  powerful  person,  not  only  

because he is an MP, but because he is a kingpin in the  

criminal mafia operating within the Gir Sanctuary which is  

meant for protection of the Asiatic Lions, apart from many  

other rare species of animal life as well as flora and fauna.  

In case, he is allowed out on bail  the appellant is most  

likely to put pressure on the prosecution witnesses and  

weaken the case of the prosecution. She submits that the  

family of the deceased is entitled to the satisfaction that  

the brazen murder  of  the deceased was not  only  fairly  

investigated,  but  also  a  fair  trial  was  conducted.  She  

further submitted that earlier application of the bail of the  

appellant  having  been  dismissed  by  the  trial  court  no  

special  treatment  could  be  given  to  the  appellant.  His  

application for bail in this Court is not maintainable.  

32.   Mr.  Rohatgi in reply has submitted that Narendra  

Modi  had  been  made  appellant  No.2  by  mistake.  The  

mistake was corrected and his name was deleted from the  

array of parties on 9.11.2012 by the order of this Court.  

29

Page 30

His  name  is  unnecessarily  being  mentioned  in  these  

proceedings.

33. We have considered the  submissions  made by  the  

learned counsel for the parties.     

34.  Before  we  examine  the  submissions  made  by  the  

learned counsel for the parties, it would be appropriate to  

notice  the  various  authorities  cited  by  them.  In  Divine  

Retreat  Centre (supra),  this  Court  held  that  considering  

the question as to whether even the High Court can set  

the  law  in  motion  against  the  named  and  unnamed  

individuals  based  on  the  information  received  by  it  

without  recording  the  reasons  that  the  information  

received by it prima facie disclosed the commission of a  

cognizable offence.  This Court observed that “the High  

Court  in  exercise  of  its  whatsoever  jurisdiction  cannot  

direct investigation by constituting a special investigating  

team on the strength of anonymous petitions. The High  

Court  cannot  be  converted  into  station  houses.”  The  

30

Page 31

observations made in para 51, on which heavy reliance  

has been placed by Mr. Rohatgi, show that the High Court  

had  sought  to  turn  the  Divine  Retreat  Centre  into  an  

accused  on  the  basis  of  an  anonymous  complaint  in  

exercise of its power under Section 482. Keeping in view  

the peculiar facts of that case, it is observed as follows :

“54. Here is a case where no information has  been  given  to  the  police  by  any  informant  alleging  commission  of  any  cognizable  offence  by  the  appellant  and  the  persons  associated with the appellant institution. It is  a  peculiar  case  of  its  own  kind  where  an  anonymous  petition  is  sent  directly  in  the  name of a learned Judge of the Kerala High  Court,  which  was  suo  motu  taken  up  as  a  proceeding under  Section 482 of  the Code.  The High Court ought not to have entertained  such  a  petition  for  taking  the  same on  file  under Section 482 of the Code.”

35.   It  was  for  the  aforesaid  reason  that  this  Court  

observed as follows:      

“51. The order directing the investigation on  the  basis  of  such  vague  and  indefinite  allegations  undoubtedly  is  in  the  teeth  of  principles of natural justice. It was, however,  submitted  that  the  accused  gets  a  right  of  hearing only after submission of the charge- sheet,  before  a  charge  is  framed  or  the  accused is discharged vide Sections 227 and  

31

Page 32

228 and 239 and 240 CrPC. The appellant is  not  an  accused  and,  therefore,  it  was  not  entitled for  any notice from the High Court  before  passing  of  the  impugned  order.  We  are  concerned  with  the  question  as  to  whether the High Court could have passed a  judicial  order  directing  investigation against  the  appellant  and  its  activities  without  providing an opportunity of being heard to it.  The  case  on  hand  is  a  case  where  the  criminal law is directed to be set in motion on  the  basis  of  the  allegations  made  in  anonymous petition filed in  the High Court.  No judicial order can ever be passed by any  court  without  providing  a  reasonable  opportunity  of  being  heard  to  the  person  likely  to  be  affected  by  such  order  and  particularly when such order results in drastic  consequences  of  affecting  one’s  own  reputation. In our view, the impugned order  of  the  High  Court  directing  enquiry  and  investigation  into  allegations  in  respect  of  which  not  even  any  complaint/information  has been lodged with the police is violative of  principles of natural justice.”

36.   These observations would not be applicable in the  

facts of this case. The criminal law has not been set in  

motion  on  the  basis  of  an  anonymous  complaint.  The  

investigation has been transferred to the CBI, in a petition  

under Article 226 of the Constitution filed by none other  

than the father of the victim who suspects that his son  

32

Page 33

was murdered at the instance of the appellant herein. The  

facts have been elaborately narrated by the High Court as  

well  as by us.   It  is  apparent  that  the fact  situation in  

Divine Retreat Centre is wholly distinguishable from the  

present case.

37.   In  D.Venkatasubramaniam (supra),  again  this  

Court was concerned with the erroneous exercise of  its  

inherent powers under Section 482, Cr. P.C. by the High  

Court.  This  Court  reiterated  the  observations  made  in  

Divine  Retreat  Centre  (supra).  It  was  inter  alia  

observed as follows :

“34. The  High  Court  in  the  present  case,  without  realising  the  consequences,  issued  directions in a casual and mechanical manner  without  hearing  the  appellants.  The  impugned order is a nullity and liable to be  set aside only on that score.

35. We are not impressed by the submission  made  by  the  learned  counsel  for  the  respondent that the High Court did not issue  any  directions  but  merely  disposed  of  the  petition with the observations reminding the  police of its duty. The question that arises for  consideration  is  whether  there  was  any  occasion  or  necessity  to  make  those  

33

Page 34

“observations”  even  if  they  are  to  be  considered  to  be  observations  and  not  any  directions. It is not even remotely suggested  that  there  was  any  deliberate  inaction  or  failure in the matter of discharge of duties by  the  police.  There  was  no  allegation  of  any  subversion of processes of law facilitating the  accused  to  go  scot-free  nor  is  there  any  finding as such recorded by the High Court in  its order.”

38.  From the above, it becomes apparent that the High  

Court  had  passed  the  order  in  a  mechanical  manner.  

Further  more,  it  was not  even remotely suggested that  

there was any deliberate inaction or failure in the matter  

of discharge of duties by the police. In the present case,  

the appellant before the High Court was none other than  

the father of the deceased. It was a cry for justice made  

by  a  person  whose  son  has  been  brazenly  murdered.  

Failure of the High Court to take notice on such a plea, in  

our opinion, would have resulted in injustice to the father  

of the victim who was only seeking a fair and impartial  

investigation into the circumstances leading to the murder  

of  his  son.  The  petition  has  been  filed  by  the  father  

seeking redressal of the grievance under Articles 14, 21  

34

Page 35

and 226 of  the Constitution of  India.  The father  of  the  

deceased had filed the petition on the grounds that the  

State is under the obligation to ensure the rule of law. It  

was stated that the rule of law can be maintained only by  

fair,  impartial  and independent investigation by the law  

and  order  enforcement  agency,  in  every  reported  

incidents  of  commission of  offence.  It  was emphatically  

stated that  the  investigation  into  the  murder  of  Jethwa  

was not taking place independently and impartially due to  

extra-legal  and  extraneous  considerations.  The  

Respondent  No.6,  father  of  the  murdered  victim,  had  

prayed before  the High Court  that  his  right  to  equality  

before  the  law  guaranteed  by  Article  14  of  the  

Constitution of India was being violated as the appellant  

herein was being protected by the investigating agency  

because he is a member of Parliament, and he belongs to  

the political party that was in power in the State. In the  

light of the aforesaid, the ratio of judgment in            D.  

Venkatasubramanium (supra),  in our opinion,  is  also  

not applicable in the facts of this case.    

35

Page 36

39.   Davinder  Pal  Singh  Bhullar  (supra) is  a  very  

peculiar case. This Court examined a situation where the  

High  Court  suo  motu  re-opened  the  proceedings  which  

had been closed, and the High Court had become functus-

officio. This Court after noticing the peculiar fact situation,  

observed as follows:

“The  impugned  order  dated  5.10.2007  though  gives  an  impression  that  the  High  Court was trying to procure the presence of  the proclaimed offenders but, in fact, it was  to  target  the  police  officers,  who  had  conducted the inquiry against Mr.  Justice X.  The order reads that particular persons were  eliminated in a false encounter by the police  and it was to be ascertained as to who were  the police officers responsible for it, so that  they could be brought to justice.”  

40.   Clearly, therefore, in such circumstances this Court  

struck down the directions.  This  Court also notices that  

although  the  proceedings  before  the  High  Court  were  

ostensibly  to  procure  the  presence  of  the  proclaimed  

offenders but in essence it was an enquiry to ascertain as  

to  who  were  the  police  officers  responsible  for  certain  

36

Page 37

false encounters. It is well settled that the Court cannot  

order a roving enquiry and direct the investigation to be  

carried out by the CBI without any basis. This court was  

dealing  with  the  cases  where  the  investigators  of  the  

crime were sought to be converted into accused. Such are  

not  the  circumstances  in  the  present  case.   Thus,  the  

reliance  placed  upon  Davinder  Pal  Singh  Bhullar’s  

case (supra) is misplaced.

41.  In the case of Ms. Mayawati (supra), the question  

raised  in  the  writ  petition  filed  under  Article  32  of  the  

Constitution of India was as to whether the FIR registered  

against  the  appellant  therein  to  investigate  into  the  

matter of alleged disproportionate assets of the appellant  

and other officers was beyond the scope of the directions  

passed by this Court in the order dated 18th September,  

2003  in  M.C.Mehta Vs.  Union  of  India.  Upon  the  

examination  of  the  entire  situation,  it  was held  by  this  

Court that the FIR registered against the appellant therein  

was  beyond  the  directions  issued  by  this  court  in  

37

Page 38

M.C.Mehta and, therefore, was without authority of law.  

42.   Undoubtedly, the essence of criminal justice system  

is to reach the truth. The underlying principle is that whilst  

the  guilty  must  not  escape  punishment;  no  innocent  

person  shall  be  punished  unless  the  guilt  of  the  

suspect/accused is established in accordance with law. All  

suspects/accused are presumed to be innocent till  their  

guilt  is  proved  beyond  reasonable  doubt  in  a  trial  

conducted according to the procedure prescribed under  

law. Fair, unbiased and transparent investigation is a sine  

quo non for protecting the accused. Being dissatisfied with  

the  manner  in  which  the  investigation  was  being  

conducted,  the  father  of  the  victim  filed  the  petition  

seeking an impartial investigation.  

43.  Now  we  shall  consider  the  judgments  cited  by  

Ms. Kamini Jaiswal.

44.   In  W.N.Chadha  (supra),  the  High  Court  had  

38

Page 39

quashed and set aside the order passed by the Special  

Judge, in-charge of CBI matters issuing the order rogatory,  

on  the  application  of  a  named  accused  in  the  FIR,  

Mr.  W.N.Chadha.  The  High  Court  held  that  the  order  

issuing letter rogatory was passed in breach of principles  

of natural justice. In appeal, this Court held as follows :-  

“89. Applying the above principle, it may be  held that when the investigating officer is not  deciding  any  matter  except  collecting  the  materials  for  ascertaining  whether  a  prima  facie  case  is  made  out  or  not  and  a  full  enquiry  in  case  of  filing  a  report  under  Section  173(2)  follows  in  a  trial  before  the  Court or Tribunal pursuant to the filing of the  report,  it  cannot be said that  at  that  stage  rule of audi alteram partem superimposes an  obligation to issue a prior notice and hear the  accused which the statute does not expressly  recognise. The question is not whether audi  alteram partem is  implicit,  but  whether  the  occasion for its attraction exists at all.”

“92. More  so,  the accused has no right  to  have  any  say  as  regards  the  manner  and  method of investigation. Save under certain  exceptions  under  the  entire  scheme of  the  Code, the accused has no participation as a  matter  of  right  during  the  course  of  the  investigation of a case instituted on a police  report  till  the  investigation  culminates  in  filing of a final report under Section 173(2) of  the  Code  or  in  a  proceeding  instituted  otherwise  than  on  a  police  report  till  the  

39

Page 40

process  is  issued under  Section  204 of  the  Code,  as  the  case  may  be.  Even  in  cases  where cognizance of an offence is taken on a  complaint  notwithstanding  that  the  said  offence is  triable  by a  Magistrate or  triable  exclusively  by  the  Court  of  Sessions,  the  accused has no right to have participation till  the  process  is  issued.  In  case  the  issue  of  process is postponed as contemplated under  Section 202 of  the  Code,  the  accused may  attend  the  subsequent  inquiry  but  cannot  participate.  There  are  various  judicial  pronouncements  to  this  effect  but  we  feel  that it is not necessary to recapitulate those  decisions. At the same time, we would like to  point  out  that  there  are  certain  provisions  under the Code empowering the Magistrate  to give an opportunity of being heard under  certain  specified  circumstances.”

“98. If  prior  notice  and  an  opportunity  of  hearing  are  to  be  given  to  an  accused  in  every criminal case before taking any action  against  him,  such  a  procedure  would  frustrate the proceedings, obstruct the taking  of prompt action as law demands, defeat the  ends  of  justice  and make the  provisions  of  law  relating  to  the  investigation  lifeless,  absurd  and  self-defeating.  Further,  the  scheme of  the relevant statutory provisions  relating  to  the  procedure  of  investigation  does not attract such a course in the absence  of any statutory obligation to the contrary.”

These observations make it abundantly clear that it  

would not be necessary to give an opportunity of hearing  

40

Page 41

to the proposed accused as a matter of course. The court  

cautioned  that  if  prior  notice  and  an  opportunity  of  

hearing have to be given in every criminal  case before  

taking any  action  against  the accused person,  it  would  

frustrate the entire objective of an effective investigation.  

In  the  present  case,  the  appellant  was  not  even  an  

accused at the time when the impugned order was passed  

by the High Court. Finger of suspicion had been pointed at  

the appellant by independent witnesses as well as by the  

grieved father of the victim.  

45.  In Rajesh Gandhi’s case (supra), this Court again  

reiterated the law as follows :  

“8. There is no merit in the pleas raised by  the  first  respondent  either.  The decision  to  investigate  or  the  decision  on  the  agency  which  should  investigate,  does  not  attract  principles  of  natural  justice.  The  accused  cannot have a say in who should investigate  the offences he is charged with. We also fail  to  see  any  provision  of  law  for  recording  reasons for such a decision…………….There is  no  provision  in  law  under  which,  while  granting  consent  or  extending  the  powers  and  jurisdiction  of  the  Delhi  Special  Police  Establishment to  the specified State and to  any specified case any reasons are required  to be recorded on the face of the notification.  

41

Page 42

The learned Single Judge of the Patna High  Court  was  clearly  in  error  in  holding  so.  If  investigation  by  the  local  police  is  not  satisfactory,  a  further  investigation  is  not  precluded.  In the present case the material  on record shows that the investigation by the  local  police was not  satisfactory.  In  fact  the local police had filed a final report before  the  Chief  Judicial  Magistrate,  Dhanbad.  The  report,  however,  was  pending  and  had  not  been accepted when the Central Government  with  the  consent  of  the  State  Government  issued the impugned notification. As a result,  the  CBI  has  been  directed  to  further  investigate the offences registered under the  said  FIR  with  the  consent  of  the  State  Government  and  in  accordance  with  law.  Under Section 173(8) of the CrPC 1973 also,  there  is  an  analogous  provision  for  further  investigation in respect of an offence after a  report  under  sub-section  (2)  has  been  forwarded to the Magistrate.”

The aforesaid observations would clearly support the  

course adopted by the High Court in this matter. We have  

earlier noticed that the High Court had initially directed  

that the investigation be carried under the supervision of  

the Special Commissioner of Police, Crime Branch, of the  

rank of the Additional  Director General of  Police.  It  was  

only when the High Court was of the opinion that even  

further investigation was not impartial, it was transferred  

42

Page 43

to the CBI.  

46.   Again  in  Sri  Bhagwan Samardha (supra),  this  

Court observed as follows :

“10. Power of the police to conduct further  investigation,  after  laying  final  report,  is  recognised under Section 173(8) of the Code  of  Criminal  Procedure.  Even after  the court  took  cognizance  of  any  offence  on  the  strength of the police report first submitted, it  is  open  to  the  police  to  conduct  further  investigation. This has been so stated by this  Court  in  Ram  Lal  Narang v.  State  (Delhi  Admn.)1.  The  only  rider  provided  by  the  aforesaid  decision  is  that  it  would  be  desirable  that  the  police  should  inform the  court  and  seek  formal  permission  to  make  further investigation.

11. In such a situation the power of the court  to  direct  the  police  to  conduct  further  investigation  cannot  have  any  inhibition.  There is nothing in Section 173(8) to suggest  that the court is obliged to hear the accused  before any such direction is made. Casting of  any such obligation on the court would only  result  in  encumbering  the  court  with  the  burden  of  searching  for  all  the  potential  accused to be afforded with the opportunity  of being heard. As the law does not require it,  we  would  not  burden  the  Magistrate  with  such an obligation.”

These observations also make it clear that there was  

no obligation for the High Court to either hear or to make  

43

Page 44

the appellant a party to the proceedings before directing  

that the investigation be conducted by the CBI.

47.   We had earlier noticed that the High Court had come  

to  the  prima  facie  conclusion  that  the  investigation  

conducted by the police was with the motive to give a  

clear chit to the appellant, inspite of the statements made  

by the independent witnesses as well as the allegations  

made by the father of the deceased. The legal position  

has been reiterated by this Court in the case of Narender  

G. Goel (supra):

“11. It is well settled that the accused has no  right  to  be  heard  at  the  stage  of  investigation.  The  prosecution  will  however  have to prove its case at the trial when the  accused  will  have  full  opportunity  to  rebut/question the validity and authenticity of  the  prosecution  case.  In  Sri  Bhagwan  Samardha  Sreepada  Vallabha  Venkata  Vishwanandha Maharaj v.  State  of  A.P. this  Court observed: (SCC p. 743, para 11)

“11. … There is nothing in Section  173(8) to suggest that the court is  obliged to hear the accused before  any such direction is made. Casting  of any such obligation on the court  would  only  result  in  encumbering  the  court  with  the  burden  of  

44

Page 45

searching  for  all  the  potential  accused  to  be  afforded  with  the  opportunity of being heard.”

12. The accused can certainly avail himself of  an  opportunity  to  cross-examine  and/or  otherwise  controvert  the  authenticity,  admissibility or legal significance of material  evidence  gathered  in  the  course  of  further  investigations.  Further  in  light  of  the  views  expressed by the investigating officer in his  affidavit before the High Court, it is apparent  that  the  investigating  authorities  would  inevitably  have  conducted  further  investigation  with  the``  aid  of  CFS  under  Section 173(8) of the Code.

13. We  are  of  the  view  that  what  is  the  evidentiary  value  can  be  tested  during  the  trial. At this juncture it would not be proper to  interfere in the matter.”

48.   Again in the case of  Narmada Bai (supra),  this  

Court  after  reviewing  the  entire  body  of  case  law  

concluded as follows :

“64. The above decisions and the principles  stated  therein  have  been  referred  to  and  followed  by  this  Court  in  Rubabbuddin  Sheikh1 where  also  it  was  held  that  considering the fact that the allegations have  been  levelled  against  high-level  police  officers,  despite  the  investigation  made  by  the police authorities of the State of Gujarat,  ordered  investigation  by  CBI.  Without  

45

Page 46

entering  into  the  allegations  levelled  by  either of the parties, we are of the view that  it would be prudent and advisable to transfer  the investigation to an independent agency.  It is trite law that the accused persons do not  have a say in the matter of appointment of  an  investigation  agency.  The  accused  persons  cannot  choose  as  to  which  investigation  agency  must  investigate  the  alleged offence committed by them.”

49.   We may also notice here the observations made by  

this Court in  Mohd. Anis Vs.  Union of India9, wherein  

this Court held as follows :

“5. … Fair and impartial investigation by an  independent  agency,  not  involved  in  the  controversy, is the demand of public interest.  If the investigation is by an agency which is  allegedly privy to the dispute, the credibility  of the investigation will be doubted and that  will be contrary to the public interest as well  as the interest of justice.” (SCC p. 148, para  5)

“2.  …  Doubts  were  expressed  regarding  the  fairness  of  the  investigation as it was feared that  as the local  police was alleged to  be involved in the encounters, the  investigation  by  an  officer  of  the  U.P.  Cadre may not be impartial.”  (SCC p. 147, para 2)”

91994 Supp (1) SCC 145

46

Page 47

50.   At  this  stage,  we would like to  reiterate the well  

known principles on the basis of a previous judgment can  

be treated as a precedent. The most important principles  

have been culled out by this Court in  Bank of India &  

Anr. Vs. K.Mohandas & Ors.  10    as follows:

“54. A word about precedents, before we deal  with the aforesaid observations.  The classic  statement of Earl of Halsbury, L.C. in Quinn v.  Leathem, is worth recapitulating first: (AC p.  506)

“… before discussing … Allen v. Flood  and what was decided therein, there  are  two  observations  of  a  general  character which I wish to make, and  one  is  to  repeat  what  I  have  very  often  said  before,  that  every  judgment must be read as applicable  to  the  particular  facts  proved,  or  assumed  to  be  proved,  since  the  generality  of  the  expressions  which  may be found there are not intended  to  be  expositions  of  the  whole  law,  but are governed and qualified by the   particular  facts of the case in which  such expressions are to be found. The  other  is  that  a  case  is  only  an  authority for what it actually decides.  I entirely deny that it can be quoted  for  a  proposition  that  may  seem to  follow logically from it. Such a mode  of reasoning assumes that the law is  necessarily  a  logical  code,  whereas  

10 (2009) 5 SCC 313

47

Page 48

every lawyer must acknowledge that  the law is not always logical at all.”

     (emphasis supplied)

This Court has in long line of cases followed  the aforesaid statement of law.

55. In  State  of  Orissa v.  Sudhansu  Sekhar  Misra9 it was observed: (AIR p. 651, para 13)

“13. … A decision is only an authority  for what it actually decides. What is of  the essence in a decision is its ratio  and  not  every  observation  found  therein nor what logically follows from  the various observations made in it.”

56. In the words of Lord Denning:

“Each case depends on its own facts  and  a  close  similarity  between  one  case  and  another  is  not  enough  because  even  a  single  significant  detail may alter the entire aspect. In  deciding such cases, one should avoid  the  temptation  to  decide  cases  (as  said  by  Cardozo)  by  matching  the  colour of one case against the colour  of  another.  To  decide,  therefore,  on  which side of the line a case falls, the  broad resemblance to another case is  not at all decisive.”

57. It was highlighted by this Court in Ambica  Quarry  Works v.  State  of  Gujarat:  (SCC  p.  221, para 18)

48

Page 49

“18. … The ratio of any decision must  be understood in  the background of  the facts of that case. It has been said  long time ago that a case is only an  authority for what it actually decides,  and  not  what  logically  follows  from  it.”

58. In Bhavnagar University v. Palitana Sugar  Mill  (P)  Ltd. this  Court  held  that  a  little  difference  in  facts  or  additional  facts  may  make a lot of difference in the precedential  value of a decision.

59. This  Court  in  Bharat  Petroleum Corpn.   Ltd. v.  N.R.  Vairamani emphasised that  the  courts should not place reliance on decisions  without  discussing  as  to  how  the  factual  situation fits in with the fact situation of the  decision on which reliance is placed. It  was  further observed that the judgments of courts  are not to be construed as statutes and the  observations must be read in the context in  which they appear to have been stated. The  Court  went  on  to  say  that  circumstantial  applicability,  one additional  or  different fact  may  make  a  world  of  difference  between  conclusions in two cases.”

51.  Keeping  in  view  the  aforesaid  principles,  we  are  

constrained to hold that the ratio of the judgment cited by  

the  appellant  would  not  be  applicable  in  the  facts  and  

circumstances of this case.   

49

Page 50

52.   We can now proceed to examine the factual situation  

in the present case.  

53.   We are  not  much impressed by  the  submissions  

made  by  Mr.  Rohtagi  that  the  High  Court  has  

unnecessarily  cast  aspersions  of  criminality  on  the  

appellant.  In  Paragraph  10  of  the  judgment,  the  High  

Court has observed as follows:-

“All  the  above  circumstances  put  together  indicated  that  the  investigation  was   

controlled  from the  stage  of  registering  the  FIR  and  only  the  clues  provided  by  the  accused persons themselves were investigated  to  close  the  investigation  by  filing  Charge- sheet  No.158 of  2010 dated 10.11.2010 and  further  investigation  had  not  served  any  purpose.  Therefore, the investigation with the  lapses and lacunae as also the unusual acts of  omission  and  commission  did  not  and  could  not inspire confidence.  It may not be proper  and advisable to further critically examine the  charge-sheet already submitted by the police,  as some of the accused persons are already  arrested and shown as accused persons and  even charge is yet to be framed against them.  The  facts  and  averments  discussed  in  paragraphs  6  and 7  hereinabove also  amply  support  the conclusion that  the investigation  all  throughout  was  far  from  fair,  impartial,  independent or prompt.”

50

Page 51

54.   In coming to the aforesaid conclusion, the High Court  

has relied on the following factors:-

(a) Prima facie, the deceased son of respondent No.6  

was an RTI activist and sole appellant in the PIL,  

being  SCA  No.  7690  of  2010,  wherein  two  

persons were, recently before the murder, joined  

as  respondents  and  one  of  them  is  already  

accused of the offence under Sections 302 and  

120-B of IPC.  The High Court also recorded that  

it  is nobody’s case that the deceased victim of  

the offence was a blackmailer or a busybody.  He  

was  interested  in  spreading  public  awareness  

about  environmental  issues  and  taking  legal  

remedies  for  preventing  environmental  

degradation,  particularly  in  and  around  the  

reserved forest and Gir Sanctuary.   

(b) The High Court then notices that according to the  

FIR, the deceased was killed at 20.40 hours on  

20.7.2010 and the FIR was registered at  22.06  

51

Page 52

hours.  Although the FIR itself mentioned address  

of the deceased and his mobile phone was also  

found on the spot, no effort was made to either  

inform any member of his family available nearby  

or  call  them  to  the  police  station  before  

registration of the FIR through police personnel.  

The  High  Court  notices  that  these  facts  would  

clearly  strengthen  the  suspicion  of  respondent  

No.6 that the relatives and acquaintances of the  

deceased  were  deliberately  prevented  from  

naming anyone even as a suspected perpetrator  

of the crime in the FIR.   

(c) Again the High Court, by making a reference to  

the FIR, has prima facie concluded that it seems  

to  have  been  registered  under  the  advice  and  

guidance of the higher officers, who were present  

at the police station.  The High Court also notices  

from the affidavit of Superintendent of Police, Mr.  

Vatsa that even during the further investigation,  

he was required to continuously inform and brief  

52

Page 53

Mr.  Mohan  Jha  as  his  supervisory  officer  and  

Special  Police  Commissioner,  Crime  Branch,  

Ahmedabad.  The High Court, therefore, formed  

an opinion that Mr. Mohan Jha continued to guide  

and control even the further investigation, which  

had been conducted on the directions of the High  

Court.   The  High  Court  also  notices  that  Mr.  

Kundaliya who was in charge of the investigation,  

had  recorded  statements  of  father,  wife,  

brothers,  mother  and  friends  of  the  deceased.  

These persons had given specific  names of the  

suspects, but no arrests were made.  In fact the  

investigation did not appear to have made any  

progress.  It was only after the order was passed  

by the High Court in a Public Interest Litigation on  

02.08.2010,  transferring  the  investigation  that  

arrests began to be made. The High Court then  

recorded  “However,  although,  name  of  Mr.DB  

was mentioned as the main suspect in at least 8  

statements  recorded  till  then  and  threats  

53

Page 54

received by the deceased were also mentioned,  

he was neither approached for interrogation nor  

any  notice  was  issued  under  Section  160  of  

Cr.P.C.”.  The High Court then notices that efforts  

were made by the persons, who were arrested, to  

make  statements  to  absolve  the  appellant  of  

being involved in  the conspiracy to kill  Jethwa.  

From this,  the  High  Court  concluded  “thus  the  

progress  of  investigation  clearly  indicated  that  

the  investigators  were  relying  more  on  the  

statements  of  the  arrested  person  than  the  

statements recorded earlier of the relatives and  

acquaintances of the deceased.  Even while filing  

the  charge-sheet,  statements  dated  22.7.2010  

and  28.7.2010  of  independent  and  important  

witnesses, such as, learned advocate Mr. Anand  

Yagnik  and  Mr.  Kanaksinh  Parmar  respectively  

were not annexed with the charge-sheet”.  The  

High  Court  then  notices  the  contents  of  case  

diary in which it is recorded that on 20.08.2010,  

54

Page 55

the  news  about  the  police  being  in  search  of  

Shiva Solanki were leaked in advance and spread  

through media and telecast, even then he could  

not be located in spite of enquiring into various  

secret sources and informants.  

(d) The High Court also notices that on 16.8.2010,  

when the High Court ordered the transfer of the  

investigation,  one of the main accused persons  

namely Bahadursinh D. Vadher, was arrested and  

had practically dictated in great detail his motive,  

plan, execution and sufficiency of resources for  

arranging the elimination of Jethwa, without ever  

mentioning  the  name  of  Shiva  Solanki.   His  

statements were recorded everyday from 18th to  

30th August, 2010.  During the course of custodial  

interrogation,  on  19th August,  2010,  he  added  

that  he  had  decided  with  Shiva  Solanki  to  kill  

Amit Jethwa for which Shiva was to provide the  

money.  Thereafter, the High Court makes a very  

important observation which is as follows:-

55

Page 56

“Although nothing can be treated or held  

to be proved at this stage, the sequence of  

events  and  the  statements  clearly  

indicated  that  even  the  name  of  Shiva  

Solanki was being introduced in a careful  

and  planned  manner  with  leakage  of  

sensitive  information  for  the  public  

including others involved in the offence”.   

This  observation  clearly  shows  that  all  the  

observations  were  tentative,  prima  facie,  to  

adjudge only the issues, as to whether the State  

Police  had  conducted  a  fair  and  unbiased  

investigation.  No  opinion  is  recorded,  even  

prima  facie  of  the  guilt  or  otherwise  of  the  

appellant in the offence of conspiracy to murder  

Jethwa. It appears to us that the apprehension  

of  the  appellant  that  any  of  the  observations  

made  by  the  High  Court  would  influence  the  

trial are without any basis.   

56

Page 57

(e) The High Court further notices that when Shiva  

Solanki  was  arrested  on  07.09.2010,  his  

statements  with  a  matching  version  were  

recorded  everyday  from  07.09.2010  to  

20.09.2010  with  details  of  his  decision  and  

understanding  with  Bahadursinh  to  kill  Amit  

Jethwa of his own motive and resources.  But not  

once these  accused  persons  appeared  to  have  

been  asked  even  one  question  about  the  

involvement  of  the  appellant.   In  fact  Shiva  is  

stated  to  have  clarified  that,  no  one  else  was  

informed  about  his  understanding  with  

Bahadursinh.    

(f) The High Court further notices that statement of  

appellant  was  recorded  on  16.9.2010  when  he  

claimed  not  only  complete  innocence  but  

ignorance  about  even  the  activities  of  the  

deceased and the difficulties caused by him.  In  

fact he urged for independent and deeper probe  

of the offence.  

57

Page 58

(g) The High Court then records the conclusion that  

this  line  of  interrogation  substantiates  the  

submission  that  the  investigating  agency  was  

following  the  clues  offered  by  the  arrested  

persons  rather  than  the  other  independent  

information given  by  the father  and witnesses.  

Taking into consideration all the aforesaid facts,  

the High Court concluded that “the statements of  

Mr.DB  recorded  after  apparently  solving  the  

mystery of the murder clearly appeared to be an  

empty  formality  at  the  convenience  and  

invitation  of  Mr.DB.  A  fair,  proper  and  prompt  

investigation  in  case  of  such  a  crime,  by  an  

ordinary  police  officer,  would  have  inspired  

immediate  custodial  interrogation  of  the  prime  

suspects; but in the facts of the present case, the  

investigating officer practically remained clueless  

for  first  25  days  after  the  murder  and  then  

suddenly, with first arrest and first statement of  

the arrestee on the first day of investigation, the  

58

Page 59

case  was  practically  solved”.  Here  again,  the  

conclusion of the High Court is in the context of  

the  impartiality  of  the  investigation.  The  same  

cannot be construed as any definite or  even a  

prima  facie  conclusion  as  to  the  guilt  of  the  

appellant.  

(h) The High Court  thereafter notices that the first  

person arrested was not named by any witnesses  

in  any  statement  recorded  till  his  arrest.   The  

High Court, therefore, states that it is not clear  

“How that first arrestee, not named till  then by  

any witness or in any statement recorded till his  

arrest, was identified as a suspect and arrested  

on 16.8.2010 itself after the order to transfer the  

investigation,  is  not  clear.  By  a  curious  

coincidence,  the  complainant  who  dictated  the  

FIR under supervision of so-many higher officers  

and  the  first  arrestee  who  offered  complete  

solution to  the investigating agency in  his  first  

statement before a special branch of the police,  

59

Page 60

both  happened  to  be  serving  police  personnel  

serving under the higher officers under whom the  

investigation  could  otherwise  hardly  make  any  

headway  for  25  days.”  The  High  Court  then  

notices  the  following  facts  “At  both  important  

points of registering and cracking the case, the  

common factor also was the same higher officer  

Mr. Mohan Jha, then in-charge of the City Crime  

Branch.  He  also  supervised  the  further  

investigation as Special Commissioner of Police,  

Crime Branch, by virtue of a special order issued  

in this regard by the Director General of Police”.

(i) On the basis of the numerous facts narrated in  

the  judgment,  the  High  Court  concluded  that  

“there was sufficient material to substantiate the  

submission that the State police was controlling  

the investigation rather than carrying it out in a  

fair,  impartial  and prompt  manner.”   The  High  

Court  also  concluded  that  the  aforesaid  facts  

would “lend credence to the allegation that the  

60

Page 61

accused persons and the prime suspect had such  

influence in the higher echelons of police-power,  

that  the  officers  of  the  lower  ranks  would  not  

dare  to  displease  them.”  These  observations  

again are general and were clearly necessary to  

state and to support the conclusion reached by  

the High Court that the investigation conducted  

by  the  State  police  was  unsatisfactory  and  

biased.  Again  no  further  conclusion  has  been  

recorded about the guilt of any of the suspects,  

let alone the appellant, in particular.  

(j) The High Court thereafter notices the relationship  

of the appellant with Shiva Solanki and observed  

“The  averments  made  by  Mr.R.Vatsa,  who  

conducted the further investigation, as related in  

Para 6 herein, did not inspire confidence insofar  

as  close  proximity  of  Shiva  Solanki  and  Mr.DB  

and their interaction inter se before and after the  

crime, even to the extent discovered during the  

investigation,  would  have  led  an  honest  

61

Page 62

investigation to conclusions and inferences quite  

contrary to those drawn by the officer.   He only  

made a weak attempt in proving his sincerity by  

applying  for  custodial  interrogation  of  some of  

the  accused  and  that  attempt  was  simply  

smothered  by  the  opinion  of  the  District  

Government Pleader, as aforesaid.”   

(k) The High Court further concludes that where no  

one appears to be an eye witness to firing on the  

deceased, not only the persons alleged to have  

assaulted  the  deceased,  but  identity  of  the  

persons  who  would  have  strong  motive  for  

eliminating  the  deceased  ought  to  have  been  

fully  or  properly  investigated.   Instead,  the  

prosecution  relied  mainly  on  the  persons,  who  

were already arrested and practically stopped at  

them in spite of the order for carrying out further  

investigation  in  light  of  the  averments  and  

allegations made in the petition.   

(l) In our opinion, the High Court has only noticed  

62

Page 63

the  facts  which  tend  to  show  that  the  

investigation had not been conducted impartially  

and fairly.  Although, the appellant is mentioned  

on a number of occasions, no specific conclusion  

is reached that the appellant was responsible for  

influencing  or  controlling  the  investigation.   In  

fact, the finger is pointed only towards the higher  

echelons of the police, who seem to have been  

under  the  influence  of  the  accused  persons.  

Mention of the appellant as the prime suspect is  

not  a  conclusion  reached  by  the  High  Court.  

Appellant  has  been  referred  to  as  the  prime  

suspect  in  all  the  allegations  made in  the  writ  

petitions  and  the  statements  of  the  relatives  

including  the  statement  of  the  father  of  the  

deceased.   Therefore,  in  our  opinion,  by  

recording the gist  of  the allegations made,  the  

High  Court  has  not  committed  any  error  of  

jurisdiction.   

(m) Mr. Rohtagi has pointed out that the High Court  

63

Page 64

has also recorded that  since the appellant  and  

his nephew were living together in a joint family  

and,  therefore,  must  have  conspired  to  kill  

Jethwa.   The  statement  recorded  by  the  High  

Court is as under:

“It  has  come  on  record  that  Mr.Shiva  

Solanki and Mr.DB were living together in a  

joint family and no investigator could have  

been easily  satisfied with the statements  

that they did not interact in respect of the  

conspiracy  to  commit  a  capital  crime,  

particularly  when  both  of  them  were  

simultaneously  joined  as  respondents  in  

the PIL.”

This,  in  our  opinion,  is  not  a  conclusion  that  the  

appellant  and  his  nephew  Shiva  Solanki  must  have  

conspired.   The submission made by Mr.  Rohtagi  is  not  

borne out from the observations quoted above.  Similarly,  

the  conclusion  recorded  by  the  High  Court  that  “The  

incorrect  statements  made  by  Superintendent  of  Police  

64

Page 65

Mr.  Vatsa  regarding  past  record  of  Mr.DB as  seen  and  

discussed  earlier  in  Para  3  herein,  clearly  indicated  an  

attempt at  somehow shielding the person who was the  

prime  suspect,  according  to  the  statements  of  the  

relatives  and  associates  of  the  deceased”   again  only  

alludes to the statements of the relatives and witnesses. It  

cannot be said to be a conclusion reached by the High  

Court,  about  the  guilt  of  the  appellant.   Therefore,  the  

conclusion cannot be said to be unwarranted.

55.  Ultimately,  the  High  Court  records  the  following  

conclusion:

“All the above circumstances put together  indicated  that  the  investigation  was  controlled from the stage of registering the  FIR  and  only  the  clues  provided  by  the  accused  persons  themselves  were  investigated to close the investigation by  filing charge-sheet No.158 of  2010 dated  10.11.2010  and  further  investigation  had  not  served  any  purpose.  Therefore,  the  investigation with the lapses and lacunae  as also the unusual acts of omission and  commission did not and could not inspire  confidence.  It  may  not  be  proper  and  advisable to further critically examine the  charge  sheet  already  submitted  by  the  police, as some of the accused persons are  already  arrested  and  shown  as  accused  

65

Page 66

persons  and  even  chare  is  yet  to  be  framed  against  them.  The  facts  and  averments discussed in paragraph 6 and 7  hereinabove  also  amply  support  the  conclusion  that  the  investigation  all  throughout  was  far  from  fair,  impartial  independent or prompt.”

56. This conclusion also only records the reasons which  

persuaded the High Court to transfer the investigation to  

CBI.  No  categorical  findings  are  recorded  about  the  

involvement of the appellant in the crime of conspiracy.  

In  fact,  the  High  Court  is  well  aware  that  the  

observations  have  been  made  only  for  the  limited  

purpose  of  reaching  an  appropriate  conclusion  as  to  

whether  the  investigation  had  been  conducted  

impartially. The High Court has itself clarified as follows :

“In the facts and for  the reasons discussed  hereinabove,  while  concluding  that  the  investigation into  murder  of  the son of  the  petitioner  was  far  from  fair,  independent,  bona fide or prompt, this court refrains from  even  remotely  suggesting  that  the  investigating  agency  should  or  should  not  have taken a particular line of investigation  or  apprehended   any  person,  except  in  accordance with  law.  It  is  clarified that  the  observations  made  herein  are  only  for  the  limited purpose of  deciding whether  further  

66

Page 67

investigation was required to be handed over  to  CBI,  and they  shall  not  be  construed as  expression  of  an  opinion  on  any  particular  aspect of the investigation carried out so far.”  

57. After  recording  the  aforesaid  clarification,  it  was  

noticed that the investigation is being transferred to CBI  

to  instill  confidence  of  the  general  public  in  the  

investigation,  keeping  in  mind  the  seriousness  of  the  

case having far reaching implications.

58. Although we have not expunged any of the adverse  

remarks recorded by the High Court, we emphasize that  

the trial court should keep in mind that any observations  

made  by  the  High  Court,  which  may  appear  to  be  

adverse  to  the  Appellant,  were  confined  only  to  the  

determination  of  the  issue  as  to  whether  the  

investigation is  to  be transferred to  CBI.  Undoubtedly,  

the trial of the accused will be conducted unaffected and  

uninfluenced by any of the so called adverse remarks of  

the High Court.  

59. For the reasons stated above, we see no merit in  

both the appeals and the same are hereby dismissed.  

67

Page 68

Crl. M.P. No. 23723 of 2013 :-

60. We  have  already  noticed  the  submissions  of  the  

learned  counsel  for  the  parties  on  this  application,  

seeking  bail  in  the  main  judgment.  The  petitioner-

appellant was arrested on 5th November, 2013, when he  

appeared before the CBI in response to the summons.  

Since then the petitioner-appellant has been in custody.  

The supplementary charge-sheet has been filed by the  

CBI in the Court of ACJM, Ahmedabad in January, 2014.  

After  the  charge-sheet  being  filed,  obviously,  the  

petitioner-appellant  is  no  longer  required  for  further  

investigation.  Mr.  Rohatgi  has  rightly  pointed  out  that  

there  is  no  likelihood  of  the  petitioner-appellant  

tampering  with  the  evidence  as  the  copies  of  all  the  

sensitive  statements  have  not  been  supplied  to  the  

petitioner-appellant.  

61. We are not much impressed by the submission of  

Mr.  Rohatgi  that  the  petitioner-appellant  ought  to  be  

68

Page 69

released  on  bail  simply because  he  happens  to  be  a  

sitting M.P., nor are we much impressed by the fact that  

further  incarceration  of  the  petitioner-appellant  would  

prevent  him  from  performing  his  duties  either  in  the  

Parliament or in his constituency. So far as the court is  

concerned, the petitioner-appellant is a suspect/accused  

in the offence of murder. No special treatment can be  

given to the petitioner-appellant  simply on the ground  

that  he  is  a  sitting  Member  of  Parliament.  However,  

keeping in view the fact that the 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  

petitioner-appellant  on  bail,  subject  to  the  following  

conditions:  

(i)  On  his  furnishing  personal  security  in  the  sum  of  

Rs.5  lacs  with  two  solvent  sureties,  each  of  the  like  

amount, to the satisfaction of the trial court.  

(ii) The petitioner-appellant shall appear in Court as and  

when directed by the court.  

(iii) The petitioner-appellant shall make himself available  

69

Page 70

for any further investigation/interrogation by the CBI as  

and when required.  

(iv)  The  petitioner-appellant  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 petitioner-appellant shall not leave India without  

the previous permission of the trial court.  

(vi) In case the petitioner-appellant is in possession of a  

passport, the same shall be deposited with the trial court  

before being released on bail.      

62. The trial court shall be at liberty to add/impose any  

further condition(s) as it deems necessary, in addition to  

the aforesaid.  

63. The Criminal Misc. Petition is allowed in the aforesaid  

terms.  

70

Page 71

Crl.M.P.No.22987 of 2013 :         

64. This Crl. Misc. Petition was filed by the petitioner on  

28th October, 2013, seeking stay of any coercive action  

against  him  prejudicing  his  life  and  personal  liberty,  

pursuant to the judgment dated 25th September, 2012 of  

the Gujarat High Court impugned in the present criminal  

appeals. In view of the order passed by us in Crl. Misc.  

Petition No.23723 of 2013, this Petition is dismissed as  

having become infructuous.  

……………………………….J. [Surinder Singh Nijjar]    

………………………………..J. [A.K.Sikri]

New Delhi; February 25, 2014.  

71