Gujarat High Court
Bhikhalal Kalyanji Jethava vs Central Bureau Of Investigation & 4 on 4 August, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/5476/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 5476 of 2017
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BHIKHALAL KALYANJI JETHAVA....Applicant(s)
Versus
CENTRAL BUREAU OF INVESTIGATION & 4....Respondent(s)
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Appearance:
BHAVYARAJ K GOHIL, ADVOCATE for the Applicant(s) No. 1
MR RC KODEKAR, ADVOCATE for the Respondent(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 5
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 04/08/2017
ORAL ORDER
1. The present applicant is father of the deceased Shri Amit Jethwa, a lawyer and an RTI Activist who lost his son in an incident which took place in the year 2010.
2. Case of his alleged murder is being tried as CBI Sessions Cases No.1 of 2014, 2 of 2014 and 3 of 2014 at CBI Court, Mirzapur, Ahmedabad. The prosecution has examined 190 witnesses and 105 witnesses have turned hostile to the case of prosecution and therefore, the present applicant was before this Court by preferring Special Criminal Application No.2135 of 2017 seeking retrial, in Page 1 of 19 HC-NIC Page 1 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER exercise of powers under Section 386 of the Criminal Procedure Code and also on seeking invocation of jurisdiction under Article 226 of the Constitution of India.
3. This Court, vide its judgment and order dated 29/06/2017, after extensively hearing both the sides, allowed the petition and directed the CBI Court to proceed on day to day basis for the retrial. It would be apt to reproduce the final directions issued by this Court vide order dated 29/6/2017:
"[1] The High Court on the administrative side shall pass an appropriate order transferring all the three CBI Sessions cases i.e. CBI Sessions Cases Nos.1 of 2014, 2 of 2014 and 3 of 2014 as on date pending in the Court of the Presiding Officer, namely, Shri Dinesh L. Patel, CBI Courts, Court No.4, Ahmedabad to any other CBI Court. On all the three CBI Sessions cases referred to above being transferred to a particular Court, the Presiding Officer concerned shall retry all the accused persons on the selfsame charge framed.
[2] The prosecuting agency i.e. the CBI shall obtain the witness summons from the Court concerned and start examining the witnesses a fresh.
[3] The retrial shall commence at the earliest and shall proceed 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 Page 2 of 19 HC-NIC Page 2 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER 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."
4. It is say of the applicant that two accused namely Mr.Dinu Boghabhai Solanki and Mr.Bahadur Sinh Vadher have challenged the said judgment and order by way of preferring Special Leave Petition (Criminal) No.4965 of 2017 and Special Leave Petition (Criminal) No.5086 of 2017 before the Apex Court.
5. On 20/07/2017, Hon'ble the Apex Court passed Page 3 of 19 HC-NIC Page 3 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER following order:
"List the matters on 26th July, 2017. We are informed that the matter is coming up before the Trial Court on 25th July, 2017. It would be open to the parties to make a request to the Trial Court for adjournment and it is for the Trial Court to take a call on that."
6. Thereafter on 26/07/2017, on the request made by the learned counsels, the said matters have been listed on 10/08/2017 by the Apex Court.
7. By way of present application, father of the deceased has urged that Special Public Prosecutor being minister of justice, has duty to aid in the process of justice and as 105 witnesses have turned hostile on account of alleged threat and inducement allegedly administered by the accused, for ensuring fair trial, Special Public Prosecutor be appointed for conducting retrial. It is further urged that those Special Public Prosecutors who were conducting the trial earlier could have risen to the occasion and their inaction also has resulted into failure of justice. The petitioner, therefore, has urged to direct appointment of Special Public Prosecutor to conduct the retrial of CBI Sessions Cases pending before the CBI Court, Ahmedabad in the backdrop of the judgment and order delivered by this Court in Page 4 of 19 HC-NIC Page 4 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER Special Criminal Application No.2135 of 2017 dated 29/06/2017.
8. This Court on 26/07/2017 heard both the sides, when Mr.R.C. Kodekar, learned Special Public Prosecutor representing the CBI, had sought time to take instructions in the matter and at his request the matter was fixed on 31/07/2017. He had once again asked for further time of two weeks for the CBI to consider the change for Special Public Prosecutors on that day. However, considering the fact that proceedings before the CBI Court were posted on 03/08/2017, time was given up to 02/08/2017.
9. It is to be noted that pursuant to the liberty granted by the Apex Court to the learned Special Judge, CBI Court, the concerned Court has chosen to proceed with the trial as directed by this Court in Special Criminal Application No. 2135 of 2017. The matter had been kept on 03/08/2017 to work out modality of affording protection to the witnesses by the prosecuting agency as has been directed by this Court in its operative order. It is also worth mentioning at this stage that this Court had directed retrial to be commenced at the earliest and proceed on day-to-day basis and entire retrial has Page 5 of 19 HC-NIC Page 5 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER been directed in camera proceedings. Before the CBI Court, works out the detailed mechanism of ensuring complete protection and safety of the witnesses during the pendency of the court proceedings and otherwise, it would be utmost necessary to consider request made by father of the victim where he has urged to decide on the change of the Prosecutor.
10. This Court has therefore heard both the sides at length.
11. Learned advocate Mr. Bhavyaraj S. Gohil, appearing for the petitioner has urged that the Hon'ble Apex Court has not stayed the judgment of this Court of Special Criminal Application No. 2135 of 2017 for retrial. He has further urged that certain observations and findings of this Court while granting retrial question role of the then learned Public Prosecutors. Again, their contribution and assigned duties make them extremely important segment. One of the vital objectives of the criminal justice system is of reaching to the truth. He also urged that it will be necessary for the witnesses also to have confidence in those conducting the trial and duty towards the public and law also demand the change of Public Page 6 of 19 HC-NIC Page 6 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER Prosecutors. Request is made to the Court to direct such change. He has pointed out to this Court from various paragraphs of the judgment of this Court rendered in the said Special Criminal Application that duty of the Public Prosecutor as highlighted by this Court shall have to be borne in mind and continuing the earlier team will not serve the purpose.
12. Per contra, Learned Special Public Prosecutor,Mr. R.C. Kodekar, made his strenuous submissions urging inter alia that the matter is pending before the Apex Court and since it is scheduled for hearing on 10.08.2017, all aspects shall be considered by the Apex Court. He agreed that the sessions cases are being conducted by the CBI Court on day-to-day basis and it is awaiting the outcome of this matter which is pending before this Court. He also does not dispute that that the CBI Court has declared its intention, as discretion has been granted to it, to proceed and continue with the trial for which, it has called the IO to decide the modalities of affording protection to the witnesses. 12.1 It is categorically stated by the learned Special Public Prosecutor on instructions that CBI is not desirous of challenging the judgment and order Page 7 of 19 HC-NIC Page 7 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER passed by this Court in Special Criminal Application No. 2135 of 2017. He, further, urged that Special Public Prosecutor, Mr. Gaurang Vyas, has also not acquiesced to recuse himself but, in writing, has shown his desire and requested the CBI Court that till this Court decides issue of public prosecutor and the Apex Court decides Special Leave Petitions, it may wait rather than proceeding with the trials. He, further, has urged that Mr. Parmar, who is the senior most Public Prosecutor of CBI at Ahmedabad is not willing to conduct Sessions Cases pending before the learned Special Judge, CBI Court on account of his busy schedule and being overburdened. He pointed out that there are couple of Public Prosecutors, who are selected through UPSC and are on the pay-roll of the CBI. He has also given the names of some of the Public Prosecutors, who are based in Gujarat. So far as Special Public Prosecutors are concerned, he urged that there is a procedure for appointing Special Public Prosecutors by CBI. At present, there are three Special Public Prosecutors and out of them, Mr. A.A. Shaikh, has already gone for pilgrimage and is not likely to return before September, 2017. Learned Special Public Prosecutor, Mr. Gaurang Vyas, who has Page 8 of 19 HC-NIC Page 8 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER conducted the matters before the CBI Court has also tendered an application before the CBI Court as mentioned above. So far as the names proposed by learned advocate Mr.Gohil during the course of hearing, he had no occasion to deliberate over the same.
13. In rejoinder, learned Advocate, Mr. Gohil, has vehemently urged that there are only two petitions before the Apex Court, by two accused, namely Mr. Bahadur Sinh Dhirubhai Vadher and Mr.Dinu Boghabhai Solanki and both of them have made a prayer of granting Special Leave to Appeal against the impugned final judgment and order dated 29/06/2017 passed in Special Criminal Application No. 2135 of 2017. It is, further, his say that the role of the Special Public Prosecutor and the Public Prosecutor of the CBI has come under a scanner, in view of certain observations made by this Court, however, there is no allegation of integrity or their conniving with the accused, but, their inactions has led to aggravating the situation and therefore, the present application with a request not to allow them to continue with these matters.
14. There are a few judgments pressed into service urging inter alia that this Court has ample powers Page 9 of 19 HC-NIC Page 9 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER to appoint Special Public Prosecutors for conducting the fair trial and for ensuring that the public purpose with which they have been entrusted the responsibility can be served effectively . It is also a further request, that they being holder of public office, their engagement is not purely professional, as is between a client and a lawyer and there is public element attached to it.
15. This Court notices, on hearing both the sides and also on realizing that there are two petitions pending before the Apex Court moved by the accused, challenging the very retrial, by way of an interim order, the Apex Court has permitted the parties to make a request to the trial Court concerned for adjournment and thereby, the discretion is left to the trial Court to take its own call on that. The matter was once again listed for hearing on 26/07/2017 and now, the matter is posted before the Apex Court for hearing on 10/08/2017.
16. Learned Special Public Prosecutor, appearing for the CBI has declared, on instructions, that CBI has so far not preferred nor does it have any intention to prefer any Special Leave Petition challenging the final judgment and order dated Page 10 of 19 HC-NIC Page 10 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER 29/06/2017 rendered in Special Criminal Application No.2135 of 2017 of this Court. In that view of the matter, there are only two matters left, as referred to hereinabove, challenging the judgment and order dated 29/06/2017.
17. There is no other matter pending before the Apex Court and hence, the request on the part of the applicant, at this stage, is being considered, particularly, in wake of the fact that before the trial Court matters are to proceed on day to day basis. 17.1The Public Prosecutor does not represent any party and has duty to serve public purpose. Independence being hallmark of this post, administration of justice would warrant change of these officers .
17.2The role of public prosecutor as observed and held by the Apex Court in case of Centre for Public Interest Litigation and others Vs. Union of India reported in (2012) 3 SCC 117 deserve reproduction at this stage.
"22. Reference in this connection may be made to the decision of this Court in Shrilekha Vidyarathi v. State of U.P. wherein the following observations have been made:
"14. ... [The] function of the Public Prosecutor Page 11 of 19 HC-NIC Page 11 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER relates to a public purpose entrusting him with the responsibility of so acting only in the interest of administration of justice. In the case of Public Prosecutors, this additional public element flowing from statutory provisions in CrPC, undoubtedly, invest the Public Prosecutors with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it."
23. the role of a Public Prosecutor in a criminal justice system has been very aptly put in the following words: [Christmus Himphreys: 1955 Criminal Law Review (pp. 740-41)]* "The Prosecutor has a duty to the State, to the accused and to the court. The Prosecutor is at all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure a conviction, nor should any prosecutor even feel pride or satisfaction in the mere fact of success."
24. A Public Prosecutor is really a minister of justice and his job is none other than assisting the State in the administration of justice and in fact he is not a representative of any party. (See Babu v. State of Kerala) The same view has also been expressed in R. v. Banks where in has been said that the Public Page 12 of 19 HC-NIC Page 12 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER Prosecutor: (Cr App Rep p. 76) " .... throughout a case ought not to struggle for the verdict against a prisoner but .... ought to bear themselves rather in the character of minister of justice assisting in the administration of justice."
25. This Court has also expressed the same opinion in Manu Sharma v. State (NCT of Delhi), where this Court held that a Public Prosecutor must observe a wider set of duties than to merely ensure that the accused is punished. His job is to ensure fair play in all proceedings. (Paras 185-88.) In the Constitution Bench decision of this Court in Sheonandan Paswan v. State of Bihar, this Court held that a Public Prosecutor is not a representative of any ordinary party to a controversy but of the sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.
26. Therefore, there is a public element in such an appointment.
27. In the appointment of Public Prosecutor, the principle of master-servant does not apply. Such an appointment is not an appointment to a civil post." 17.3 The Apex Court in case of K. Anbazhagan Vs. State of Karnataka and others reported in (2015) 6 SCC P. 86 has held thus:
Page 13 of 19HC-NIC Page 13 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER "69. Section 2(u) of the Code defines "Public Prosecutor".30 In terms of the definition any person appointed under Section 24 of the Code is a Public Prosecutor. A Special Public Prosecutor appointed under Section 24(8) of the Code is naturally also a Public Prosecutor.
70. Section 24 of the Code is a part of Chapter II thereof which concerns the constitution of criminal courts and offices. Three Sections in this chapter relate to Public Prosecutors, namely, Section 24, Section 25 and Section 25-A.
71. Section 24(1) of the Code provides for the appointment of a Public Prosecutor for a High Court.
The authority to appoint a Public Prosecutor for a High Court is vested both in the Central Government and a State Government. The two requirements for the appointment of a Public Prosecutor for the High Court are that it shall be made after consultation with the High Court and the person so appointed shall, in terms of Section 24(7) of the Code, have been in practice as an advocate for not less than seven years. The 'jurisdiction' or 'area of operation' of a Public Prosecutor appointed for the High Court is limited to the High Court and it is not possible for a Public Prosecutor appointed for the High Court to claim that he or she is entitled to appear in the District Court or any other court by virtue of his or her appointment. A similar power of appointment of a Page 14 of 19 HC-NIC Page 14 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER Public Prosecutor for every district is given to the State Government by Section 24(3) of the Code. There is a similar limitation of 'jurisdiction' or 'area of operation' of a Public Prosecutor appointed under Section 24(3) of the Code to the district for which he or she is appointed. A Public Prosecutor appointed for a particular district cannot claim any authorization to appear as a Public Prosecutor in any other district or in the High Court of the State in which that district is located. In other words, Section 24(1) and Section 24(3) of the Code limit the 'jurisdiction' or the 'area of operation' or the authority or the orbit of the Public Prosecutor to the High Court [Section 24(1) of the Code] or the district [Section 24(3) of the Code]." 17.4. This Court is conscious of the fact that the appointment of Special Public Prosecutor is to be made by the Central Government or the State Government, as the case may be. Ordinarily, this Court need not interfere in such appointments. Except for the larger public purpose and cause, such appointments are to be left to the concerned authorities as provided under the law. However, the circumstances which have emerged would on imminent basis warrant issuance of direction for the officer on the roll of the CBI and based at Ahmedabad (Gujarat) to replace the officer who conducted the matter earlier based essentially at Page 15 of 19 HC-NIC Page 15 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER Delhi.
Chronology of events detailed by this Court which culminated into direction of retrial due to majority of witnesses turning hostile to the case of prosecution, in the opinion of this Court, would demand such change for the cause of administration of justice and to serve larger public purpose. Admittedly, there are no allegations of either questioning their credentials or of connivance but, what weighs with the Court essentially is of necessity to have a fresh approach and open mind and confidence of witnesses in the office of public prosecutor, more particularly, in wake of various observations made while directing retrial. 17.5. This order at this stage, even prior to 10th August, 2017 in the present application is necessary in view of the permission granted to the trial Court by the Apex Court to exercise discretion on the aspect of conducting the trial and as conveyed to this Court, the trial Court has fixed the matter on day-to-day basis. It is necessary, of course, to ensure the grant of protection to the witnesses, where again the role of the public prosecutor will be extremely important.
18. So far as the main Public Prosecutor, Page 16 of 19 HC-NIC Page 16 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER learned advocate Mr. Tiwari, is concerned, he is on the pay-roll of the CBI, who has conducted the said matters, in the past, with learned Special Public Prosecutor, Mr. Gaurang Vyas. He was visiting from Delhi and is no longer attending to the said matter. This Court, therefore, is of the opinion that in wake of the submissions made by the learned Special Public Prosecutor Mr. R.C. Kodekar, the main Special Public Prosecutor, Shri. Parmar since is overburdened with both the judicial as well as the administrative work, learned Public Prosecutor, Mr. Hari Mohan, who is based in the State of Gujarat and appears for and on behalf of the CBI, shall conduct the Sessions trial as may be scheduled by the CBI Court.
19. Considering various directions issued by this Court in Special Criminal Application No. 2135 of 2017 and also in camera trial on day-to-day basis to be conducted by the CBI Court, of course, subject to the final adjudication of the issue of retrial by the Hon'ble Apex Court, one person may find such a task herculean in nature. Considering the stupendous work of retrial, which includes examination of about 195 witnesses, the same shall have to be done as a team work. Even otherwise, in Page 17 of 19 HC-NIC Page 17 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER the past, two of the Public Prosecutors, out of which, one was selected through the UPSC and another one appointed by the CBI as the Special Public Prosecutor conducted this matter.
19.1 Learned Special Public Prosecutor appearing for CBI, Mr.Gaurang Vyas as submitted to this Court has declared that since the present application is pending before this Court and Criminal Appeal is pending before this Court, unless the final decision is taken he has no intention to proceed with CBI Sessions Case No. 1, 2 & 3 of 2014.
20. The names of some of the advocates practicing before the CBI Court have been given, who are not on the pay-roll of the CBI, but, are otherwise seasoned advocates, during the course of hearing. Before those names could be considered and this Court decides on the plea of appointment of special public prosecutor learned Special Public Prosecutor Mr.Kodekar since, had no occasion of even considering those names or communicating them to the said investigating agency, further hearing of this matter is being fixed on 11/08/2017.
21. In the meantime, so as to ensure that there is no hampering of the trial, which is being conducted by CBI Court of all the three cases, it is Page 18 of 19 HC-NIC Page 18 of 19 Created On Mon Aug 21 05:38:10 IST 2017 R/SCR.A/5476/2017 ORDER being directed that learned Public Prosecutor, Mr. Hari Mohan, who is selected through UPSC and is presently discharging his duties as Public Prosecutor for and on behalf of the CBI at CBI Court at Ahmedabad shall conduct all the three matters pending before the Court.
22. This order shall be communicated by the learned Special Public Prosecutor, Mr. Kodekar, to his counterpart at CBI Court. A copy of this order shall be made available to him for its onward communication and due compliance.
23. S.O. to 11TH AUGUST, 2017.
(MS SONIA GOKANI, J.) ila Page 19 of 19 HC-NIC Page 19 of 19 Created On Mon Aug 21 05:38:10 IST 2017