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2017 (10) TMI 1640 - SC - Indian LawsSeeking cancellation of Bail granted - Murder - 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 - whether High Court could order retrial in exercise of writ jurisdiction under Article 226 of the Constitution of India? - HELD THAT:- 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. 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. Whether it was a case where entire de novo trial is necessitated? - HELD THAT:- Directing a trial court to spend this kind of time once again is a tall order and the same purpose which is sought to be achieved by the High Court could be served by re-examining only those witnesses which are absolutely necessary. After all, out of 195 witnesses, if 105 witnesses have been declared hostile, 90 other witnesses have been examined and cross-examined and their deposition is not required to be recorded again. Further, among them, there would be many officials/formal witnesses as well. Likewise, some of the witnesses though turned hostile, their testimony may not have much bearing - Since the contention of the learned counsel of the accused persons rejected on the merits of the case, it is opined that 26 witnesses, list whereof was furnished by Mr. Nadkarni in the Court with copies to the learned counsel for the accused persons, should be re-examined. Whether the High Court is justified in passing strictures against the Presiding Officer of the trial court? - HELD THAT:- 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 - 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. 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 - thus, 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. 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, 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.
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