TMI Blog2017 (10) TMI 1640X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 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 du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be re-examined, it is opined that in order to ensure that there is a fair trial in literal sense of the term, at least till the time eight eye-witnesses are re-examined, Mr. Solanki should remain in confinement and he be released thereafter with certain conditions, pending remaining trial - Bail granted to Mr. Solanki by this Court vide order dated February 25, 2014 stands cancelled for the time being - petition disposed off. - WITH 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) A.K. Sikri J. And Ashok Bhushan J. JUDGMENT 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s duties either in Parliament or in his constituency. So far as the Court is concerned, the appellant-petitioner is a suspect/accused in the offence of murder. No special treatment can be given to the appellant-petitioner simply on the ground that he is a sitting 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 self same 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in ordering de novo trial. The High Court noted one crucial and very pertinent occurrence that had taken during the trial viz. out of 195 witnesses examined by the prosecution during trial, as many as 105 witnesses were declared hostile. The break-up of the witnesses examined is as under: Total 105 Witnesses 61 Witnesses are hostile including 8 eye witnesses 16 Police witnesses 47 Panch witnesses 45 Hostile 21 official witnesses 4 Magistrates 1 Complainant 1 Doctor Total 195 Witnesses Examined. 105 witnesses hostile. 9) 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 Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused) were undue pressuring his family and elder brother of the PW on 12.10.2016 to change his version to turn hostile in the Court. A true copy of the complaint dated 14.10.2016 is annexed herewith and marked as Annexure-R-1. Further on the complaint of PW, the Trial Court passed order to Director General of Police, Gujarat to verify the substance and to take a decision on the complaint A. true copy of the order dated 15.10.2016 passed by the Specia Judge CBI Court, Court No. 4, Ahmedabad in CBI Sessions Case No. 2/14 is annexed herewith and marked as Annexure-R-2. However, decision in the matter is still pending at the end of DGP, Gujarat. 5. That para 06 of the additional affidavit is the matter of record. Further it is submitted that the accused applicant was released on bail vide order dated 25.02.2014 by this Hon'ble Court 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 lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Dinu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused persons. 13) After taking note of the aforesaid facts and submissions, the High Court pointed out that moot question was as to whether it could order retrial in exercise of writ jurisdiction under Article 226 of the Constitution of India. With this poser, the High Court has analysed the said issue under the following heads: (i) Concept of fair trial. (ii) Hostile witnesses a menace to the criminal justice system. (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 judgments [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] 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 extensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery offence is a crime against the society and is unpardonable, yet there are some species of ghastly, revolting and villainous violation of the invaluable right to life which leave all sensible and right minded persons of the society shell-shocked and traumatized in body and soul. One fails to understand that how could 105 witnesses turn hostile 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 adduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Andhra Pradesh [AIR 1962 SC 1788] 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictims as well. Victim oriented policies are introduced giving better role to the victims of crime in criminal trials. It has led to adopting two pronged strategy. On the one hand, law now recognises, with the insertion of necessary statutory provisions, expanding role of victim in the procedural justice. On the other hand, substantive justice is also done to these victims by putting an obligation on the State (and even the culprit of crime) by providing adequate compensation to the victims [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] . 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 [Reference as in Footnote 9 above. the aforesaid situation] . 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 losi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed by credible evidence, evaluated objectively by the Court [Though in certain circumstances, these emotions may be relevant for establishing motive for the commission of crime] . 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 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 36 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 case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 indul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociety 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
