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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)

W I T H

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

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

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

A N D

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

J U D G M E N T

A.K. SIKRI, J.

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Leave granted in 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.

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

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

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

1  (2014) 4 SCC 626

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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 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

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

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

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

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.

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

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

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

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1 Doctor  Total 195 Witnesses Examined. 105 witnesses  hostile.

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

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investigated by Crime Branch of Ahmedabad and they had filed two charges sheets  and they had mentioned 1512 witnesses. 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.

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

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pass any other order as this  Hon'ble Court  may deem fit  and proper  in  the  interest  justice.  As  the  accused  applicant  don't 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.”

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

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

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

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:

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(i) Concept of fair trial.

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

(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.

14)  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

2 State of Maharashtra v. Dr. Praful B. Desai, [(2003) 4 SCC 601]; Zahira Habibulla H. Sheikh v. State of Gujarat, [(2004) 4 SCC 158]; Asha Ranjan v. State of Bihar, [(2017) 4 SCC 397]; and Ajay Singh and another v. State of Chhattisgarh, [(2017) 3 SCC 330]

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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.

15) 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

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

18

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.  

16) 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 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

19

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.”

17) 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.   

18) 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

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

3 Swaransingh v.  State  of  Punjab,  [AIR  2000  SC  2017]  and  Javed  Alam v.  State  of Chhattisgarh & Anr., (2009) 6 SCC 450

20

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…”

 19) 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.

20) 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 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

21

freely and without any fear in their mind.”

 21) 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:

“(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.”

4  (2017) 1 SCC 529

22

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

 22) 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.”

 23) 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

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

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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 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.”

 24) 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

5  (1981) Supp. SCC 83

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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.’”

25) 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 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.

6  AIR 1962 SC 1788

25

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.”

 26) 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

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

counsel for the accused persons in their appeals.

27) 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

26

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.”

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

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

29) 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

27

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.   

30) 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

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

28

inducement or threats cannot be ruled out.

31) 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

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

29

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.

32) 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

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

7      S.357A, Cr.P.C. provides for ‘Victim Compensation Scheme’ which is inserted by  Amendment Act 5 of 2009 w.e.f. 31-12-2009.

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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 Court8 , there is an emphasis on the

need to streamline the issues relating to crime victims.

33) 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,

8   (a) Rudul Sah v. State of Bihar; (1983) 4 SCC 141    (b) Delhi Domestic Working Women’s Forum v. Union of India; (1995) 1 SCC 14    (c) D.K. Basu v. State of West Bengal; (1997) 1 SCC 416    (d) Suresh & Anr. V. State of Haryana; (2015) 2 SCC 227.

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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.

34) 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

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

9  For detailed study on this aspect, see ‘Victim Justice – A paradigm Shift in Criminal  Justice System in India’ by G.S. Bajpai and Shriya Gauba. 10  Reference as in Footnote 9 above.

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the aforesaid situation.   

35) 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.

36) 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

33

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

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.

37) Keeping in mind the aforesaid jurisprudential philosophy of criminal

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

11    Though in certain circumstances, these emotions may be relevant for establishing motive for  the commission of crime.

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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.   

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

Sola  Police  Station.  But  the  investigation  was  lackadaisical.   The

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

35

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.   

39) 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

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.   

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

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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?

41) 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

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

37

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

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.

38

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

persons, should be re-examined.   

42) 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 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

39

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)”

 43) 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

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}.

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

12  (2013) 12 SCC 392 13  (2012) 6 SCC 491

40

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.   

45) 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.   

46) With this, we advert to the application filed by the complainant for

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

41

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 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

14  (2017) 2 SCC 178

42

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 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

43

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.”

47) 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

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

44

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.

48) 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.

15  (2009) 14 SCC 286

45

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

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

46

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