Gujarat High Court
Bhikhalal Kalyanji Jethava vs Central Bureau Of Investigation (Cbi) & on 29 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2135/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 2135 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
CIRCULATE THE JUDGMENT AMONGST ALL THE
JUDGES OF THE SUBORDINATE JUDICIARY.
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BHIKHALAL KALYANJI JETHAVA....Applicant(s)
Versus
CENTRAL BUREAU OF INVESTIGATION (CBI) & 11....Respondent(s)
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Appearance:
MR BB NAIK, SENIOR ADVOCATE WITH MR HM PRACHCHHAK, ADVOCATE for
the Applicant(s) No. 1
MR RC KODEKAR, ADVOCATE for the Respondent(s) No. 1
MR DIGANT B KAKKAD, ADVOCATE for the Respondent(s) No. 7
MR SV RAJU SENIOR ADVOCATE WITH MR NIRAL R MEHTA, ADVOCATE for the
Respondent(s) No. 5
MR RJ GOSWAMI, ADVOCATE for the Respondent(s) No. 8 - 11
MR SAMIR J DAVE, ADVOCATE for the Respondent(s) No. 12
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MR ND NANAVATY, SENIOR ADVOCATE WITH MR YASH N NANAVATY,
ADVOCATE for the Respondent(s) No. 6
MR RS SANJANWALA, SENIOR ADVOCATE for the respective Respondent
MS NISHA THAKORE, APP for the Respondent(s) No. 2 , 4
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/06/2017
CAV JUDGMENT
""Witnesses" as Benthem said : are the eyes and ears of justice. Hence. the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering the truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens Page 2 of 118 HC-NIC Page 2 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the "TADA Act") have taken note of the reluctance shown by witnesses to depose against dangerous criminalsterrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies."
1 I deem appropriate to preface my judgment with the aforesaid observations of the Supreme Court made in the case of Zahira Habibulla H. Sheikh vs. State of Gujarat [(2004) 4 SCC 158], because in the case on hand, out of 195 witnesses examined by the prosecuting agency, 105 of those have been declared as hostile. All the important witnesses including the eyewitnesses resiled from their statements made before the police and turned hostile on account of tampering and maneuvering at the end of the accused persons, thereby, reducing the trial to a mere farce.
2 A devastated and crestfallen father, who lost his young son on being brazenly murdered in cold blood, cries for justice. The wailing father says that the trial has been a farce. He points that out of 195 witnesses examined by the prosecuting agency, 105 of those turned hostile. The father says that the main accused, a former member of the Parliament, by his sheer power and position, won over all the witnesses including the eyewitnesses. The father of the deceased is here before this Court, praying for a retrial. He wants this Court to exercise its extraordinary powers under Article 226 of the Constitution of India or the powers of supervisory jurisdiction under Article 227 of the Constitution of India. The father of the deceased is seeking retrial at a Page 3 of 118 HC-NIC Page 3 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT stage when the Trial Court has yet to pronounce the judgment. On the other hand, the accused persons say that this Court need not be so emotional or sentimental about the entire matter, as the witnesses do turn hostile in the course of the trial. Merely because 105 witnesses turned hostile is no ground to order a retrial. The accused persons say that a retrial can be ordered only by the appellate Court in exercise of its powers under Section 386 of the Code of Criminal Procedure, 1973. The invoking of writ jurisdiction under Article 226 of the Constitution of India for the purpose of retrial is something unprecedented.
3 In view of the above, the writ applicant has prayed for the following reliefs:
"[A] that the Hon'ble Court be pleased to direct the respondent CBI to investigate into the reasons behind large number of witnesses turning hostile during the trial of Amit Jethwa murder and place a report of such investigation before this Hon'ble Court.
[B] Be pleased to direct respondents to initiate necessary criminal and civil proceedings against all those, accused and others, who are found responsible for the large number of witnesses, individually and collectively, turning hostile during the trial of Amit Jethwa murder case.
[C] Be pleased to direct respondent CBI Court to recall and reexamine witnesses who have turned hostile based on the investigation into large number of witnesses turning hostile in the Criminal Trial CBI Sessions Case No.1 of 2014, 2 of 2014 and 3 of 2014, or independently of such investigation or inquiry, as deemed fit by this Hon'ble High Court in the interest of justice and to uphold the rule of law.
[BBB] Alternatively, the Hon'hle Court may be pleased to direct re trial in CBI Sessions Case No.2 of 2014, 1 of 2014 and 3 of 2014.
(C] During the pendency and/or final disposal of the present petition be pleased to direct respondent no.1 and 2 to submit a report as to what actions they have initiated of certain witnesses who have filed complaint about being threatened or approached for turning hostile and also be pleased to place on record the conclusion of investigation or inquiry so far carried out.Page 4 of 118
HC-NIC Page 4 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT [D] During the pendency and/or final disposal of the present petition be pleased to direct respondent CBI Court not to conclude the trial and/or not to close the stage of leading evidence till respondent no.1 CBI submits report on the issue of large number of witnesses turning hostile of Amit Jethwa murder case and consequent actions that may be taken in accordance with law.
[DD] During the pendency and/or final disposal of the present petition, be pleased to direct the respondent CBI Court not to pronounce final judgment and order in CBI Sessions Case No.2 of 2014, 1 of 2014 and 3 of 2014.
[E] For such other and further relief as the circumstances of case may require."
4 The facts of the case in details are as under:
4.1 The son of the writ applicant namely, Amit Jethwa was a Right to Information Activist. The late Amit Jethwa had filed a public interest litigation before this High Court being the Special Civil Application No.7690 of 2010 against the State of Gujarat and others with the following prayers:
""The appellant therefore prays that your Lordship may be pleased to:
(a) Admit this petition.
(b) Issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to stop illegal mining within 5 kms. radius from boundary of Gir Sanctuary."
4.2 In the aforesaid writ petition, Jethwa had given the details of various activities of certain firms and individuals who were indulging in illegal mining and destroying the biodiversity of natural habitat of the Gir Forest in Gujarat. This, according to Jethwa, was having an adverse effect on the natural habitat of the Asiatic Lions. He was particularly concerned with the illegal mining within 5 kms. radius from the boundary of the Gir Sanctuary Area. More than 50 mines in the names of Page 5 of 118 HC-NIC Page 5 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT different persons were mentioned in the writ petition wherein illegal mining was alleged. Enquiry into the allegations made by Jethwa was in progress in the aforesaid writ petition, when he was brutally murdered.
4.3 Jethwa was the President of the Gir Nature Youth Club at Khamba, Gujarat. He had been active in fighting against the encroachment of forests and poaching. He was also instrumental in the successful prosecution of the actor Salman Khan for shooting an endangered Chinkara Deer. He had also taken up cudgels against the actor Aamir Khan when a Deer was used in a scene in the movie Lagaan. Apart from this, Jethwa rigorously campaigned against corruption among officers of the Indian Forest Service and opposed the mala fide application of Article 356 of the Constitution of India. In 2007, he had drawn attention to the mysterious death of lions in the Gir Forest, including three that were shot within a few hundred meters of the Babariya Forest guard outpost. Jethwa had claimed that "such a thing cannot be possible without support of some forest officials". On that basis, he had sought suspension of a particular IFS Officer. The incident ultimately led to the uncovering of a large lion poaching gang. He later campaigned against the shifting of lions to the Kuno Wildlife Sanctuary in Madhya Pradesh. According to him, his efforts were often blocked by the Forest officials by charging him with offences such as photographing a dead lion and trespassing.
4.4 In 2007, Jethwa contested the State Assembly elections against the respondent No.5 herein, but lost. In 2008, Jethwa was very actively involved in spreading the awareness about effectiveness of the Right to Information Act for addressing grievances, and conducted workshops on the procedure to file requests under the RTI, to prevent corrupt practices and other maladministration. In 2010, Jethwa had filed a Public Interest Page 6 of 118 HC-NIC Page 6 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT Litigation (writ petition) questioning the inaction of State Government over the appointment of Lokayukta. This Court directed the Government to appoint the Lokayukta. He had also spearheaded the campaign against the rising case pendency in the Gujarat Information Commission due to the lack of Commissioners. It was on his petition that the High Court gave direction to the State Government to complete the appointments within a stipulated time. He again came to the rescue of the RTI applicants by filing a writ petition in this Court and made the Government accept the Indian Postal Order as one of the modes of payment to deposit fees while filing the Right to Information applications.
5 The facts narrated above would indicate that the late Amit Jethwa was a wellknown social activist interested in the protection of environment, generally and the biodiversity of Gir Forest in particular. This, according to him, was urgently needed to protect the Asiatic Lions, apart from the usual environmental issues.
6 During the pendency of the public interest litigation filed by the late Jethwa, the name of one of the accused persons herein Dinu Bogha Solanki and his nephew emerged as the powers behind the illegal mining mafia. In such circumstances, by order dated 6th July 2010, this Court impleaded Dinu Bogha Solanki and his nephew Pratap Bhai Solanki, as the party respondents.
7 It is the case of the writ applicant herein that Dinu Bogha Solanki was so annoyed on being made a party in the different litigations filed by his late son and the information that had surfaced during the course of the hearing of the public litigation that Dinu Bogha Solanki contracted/conspired with some unknown persons to eliminate his son.
Page 7 of 118HC-NIC Page 7 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT In pursuance of the conspiracy, which was hatched, the son of the writ applicant was shot dead on 20th July 2010, opposite the Gujarat High Court, while the deceased was leaving the chamber of his Lawyer at 8:30 P.M. 8 The Sola Police Station, Ahmedabad registered the First Information Report being IC.R. No.I163 of 2010 for the offence punishable under Sections 302 read with 114 of the Indian Penal Code and Section 25(1) of the Arms Act.
9 The writ applicant was thoroughly disgusted and dissatisfied with the manner in which the investigation was conducted by the State police, and in such circumstances, he had to file the Special Criminal Application No.1925 of 2010 before this Court seeking transfer of investigation to an independent investigating agency, preferably C.B.I or Special Investigation Team comprising the I.P.S. Officers from other State cadre as well. On 19th October 2011, this Court passed an interim order directing the further investigation to be conducted by the State of Gujarat under the supervision of the Special Commissioner of Police, Crime Branch (of the rank of Additional Director General of Police) and to submit a final report of investigation by 28th November 2011.
10 Ultimately, a Division Bench of this Court, vide the judgment and order dated 25th September 2012, transferred the investigation to the C.B.I. While transferring the investigation, this Court observed as under:
"13. As discussed in detail in paragraphs 6, 7 and 9 herein, investigation into the murder of the petitioner's son does not appear to have been carried out in conformity with the legal provisions discussed in paragraph 11 and the control exercised by one police officer of a very high rank, all throughout and even after the orders for further investigation by this Court, provides sufficient ground to conclude that the investigation was Page 8 of 118 HC-NIC Page 8 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT controlled and the line of investigation was determined and supervised so as to put to naught the allegations made and the suspicion raised by the acquaintances and family members of the deceased. As discussed in detail earlier in paragraph 9, the investigation would hardly inspire confidence not only in the minds of the bereaved and aggrieved family members, but even general public on taking an objective view of the matter. On the other hand, the deceased having been an active RTI activist, somany people whose vested interests may have been affected by his applications under the RTI Act, could have a motive to contribute into his killing. Therefore, a perfunctory investigation on the basis of statements of the accused persons themselves may not unearth the whole truth and meet the ends of justice. Therefore, it is imperative that proper and comprehensive investigation is undertaken by an agency which is not under the control of the State Government.
14. The Right to Information Act, 2005 declared in its Preamble that, whereas the Constitution of India has established democratic Republic and democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; and to preserve the paramountcy of the democratic ideal, that it was enacted. The Constitutional powers conferred upon the highest judicial institution in the State to entertain public interest litigation and issue necessary direction was also a step forward in enforcing the fundamental rights of the citizens and ensuring the rule of law . These progressive steps cannot be allowed to be nullified and no one should face a threat to his life when he approaches a court of law to exercise his right of access to justice. In such milieu, murder of a petitioner in a PIL and an RTI activist, in front of the High Court, could be read as a clear message to the concerned citizens that they may have to pay by their lives, if they insist upon using the tools placed in their hands by law and approach the Court for redressal of public grievance against some individuals. The commission of murder, in the facts of the present case, amounted to an affront to the judicial system and a challenge to implementation of an Act of Parliament, with national repercussions and has to be viewed seriously. Therefore, it is of utmost importance that the case on hand is thoroughly investigated and properly prosecuted by independent and competent officers, so as to inspire confidence and reaffirm faith of the people in rule of law.
15. In the facts and for the reasons discussed hereinabove, while concluding that the investigation into murder of the son of the petitioner was far from fair, independent, bona fide or prompt, this Court refrains from even remotely suggesting that the investigating agency should or should not have taken a particular line of investigation or apprehended any person, except in accordance with law. It is clarified that the observations made herein are only for the limited purpose of deciding whether further investigation was required to be handed over to CBI, and Page 9 of 118 HC-NIC Page 9 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT they shall not be construed as expression of an opinion on any particular aspect of the investigation carried out so far. However, in view of the peculiar facts and circumstances, following the ratio of several judgments of the Apex Court discussed hereinabove and in the interest of justice and to instill confidence in the investigation into a serious case having far reaching implications that we order that further investigation into I C.R.No.163 of 2010 shall be transferred to the Central Bureau of Investigation (CBI), with the direction that the CBI shall immediately undertake an independent further investigation, and all the officers and authorities under the State Government shall cooperate in such investigation so as to facilitate submission of report of investigation by the CBI as early as practicable and preferably within a period of six months. The police authorities of the State are directed to hand over the records of the present case to the CBI authorities within ten days and thereafter the CBI shall take up comprehensive investigation in all matters related to the offence and report thereof shall be submitted to the Court of competent jurisdiction and, in the meantime, further proceeding pursuant to the chargesheets submitted by respondent No.5 shall remain stayed. Rule is made absolute accordingly. In view of disposal of the main petition, the Misc. applications are disposed as not surviving.
Before parting with the judgment, it has to be acknowledged that learned Government Pleader Mr.P.K.Jani has, while duly and diligently defending the respondent, been forthright and displayed exemplary objectivity, earning credit for the office of the Public Prosecutor.
A copy of this order shall be served on the office of the CBI at Gandhinagar and its central office at New Delhi. Direct service by the petitioner is also permitted."
11 The aforesaid order passed by a Division Bench of this Court came to be challenged by Dinu Bogha Solanki before the Supreme Court by filing the Special Leave Petition (Cr.) Nos.8406 - 8292 of 2012. The Supreme Court, vide the judgment and order dated 25th February 2014 reported in (2014) 4 SCC 626 titled as "Dinubhai Boghabhai Solanki vs. State of Gujarat and others" affirmed the order passed by the Division Bench of this Court transferring the investigation to the C.B.I. 12 The C.B.I. concluded the investigation and filed chargesheet against in all seven accused persons. The filing of the chargesheet Page 10 of 118 HC-NIC Page 10 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT culminated in the Special CBI Cases Nos.1, 2 and 3 of 2014 respectively.
13 On 18th May 2016, the Special Judge, CBI Courts, Court No.4 at Mirzapur, Ahmedabad framed the following charge against the seven accused persons. The charge reads as under:
"In the Court of Special Judge, CBI Cases, Court No.4, At Mirzapur, Ahmedabad CBI Sessions Case No.02/2014.
With CBI Session Case No.01/2014 with CBI Session Case No.03/2014 Complainant: The State through CBI Versus Accused: 1. Bahadur Sinh Dhirubhai Vadhera (A1)
2. Panchanbhai Gopalbhai @shivabhai Desaid (A2)
3. Sanjay Prabhatbhai Chouhan (A3)
4. Pratapbhai @ Shivabhai Himrbhai Solanki (A4)
5. Udaji Kantiji Sonaji Thakore (A5)
6. Shailesh Nanabhai Pandya (A6)
7. Dinubhai Boghabhai Solanki (A7) CHARGE I, Dinesh LPatel, Special Judge for CBI Cases, Court No.4, Ahmedabad do hereby charge you all accused viz. 1. Bahadur Sinh Dhirubha Vadhera (A
l), 2. Pachanbhai Gopaibhai @ Shivabhai Desai (A2), 3. Sanjay Prabhatbhai Chouhan (A3), 4. Pratapbhai @ Shivabhai Himrbhai Solanki (A4), 5. Udaji Kantiji Sonaji Thakore (A5), 6. Shailesh Nanabhai Pandya (A6) and Dinubhai Boghabhai Solanki (A7) persons as follows:
1. That you accused person (A7) during the relevant period entered into criminal conspiracy with other coaccused persons in furtherance of the said conspiracy and with an object of the criminal conspiracy with the intention to cause lose to the life and property to Sh. Amitkumar Bhikhubhai Jethwa and has played a role as under:Page 11 of 118
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2. That Amitkumar Bhikubhai Jethwa was the Chairperson of Gir Natural Youth Club. He has obtained the important information about stone mines in the said area from the various department under the Right to Information Act, 2005. That the family of you accused No.l has purchased the stone mines in village Alidhar, Taluka Kodinar, District Junagarh. The said stone mine are located in the Gir Jungle area and could not start the said stone mine at the said place in the Gir Jungle. That the family of accused persons (A1) had faced greater financial lose due to the: objection raised by Amit Kumar Bhikhubhai Jethwa, therefore the family of the accused (Al) had sold the stone mines at loss to other party.
You accused (A4) Pratapbhai Alias Shivabhai is a friend of accused (Al) Bahadursinh Dhirubha Vadhera since their childhood. That you accused No. 4 was also interested in stone minesjajid mobile towers and also having such mines and towers.
3. That you accused (A7) Shri Dinubhai Boghabhai Solanki and your nephew (A4) Pratapbhai Alias Shivabhai were engaged in illegal mining activity in prohibited area within 5 kms. of Gir Forest despite cancellation of the queries lease. That deceased Amit Kumar Jethwa started crusade against personal and commercial activities of you accused (A7) and (A
4). The said illegal mining activities were continuing in the prohibited five kilometers area of Gir forest and the Amitkumar Bhikubhai Jethwa (deceased) finally filed a PIL in the Hon'ble High Court of Gujarat on 28.06.2010. The Hon'ble High Court of Gujarat heard the matter on 06.07.2010 and you (A7) and your nephew accused Pratapbhai @ Shivabhai Solanki (A4) were impleaded as respondents in the PIL. On 19.07.2010 notices were served upon you (A7) and your nephew accused Pratapbhai @ Shivabhai Solanki (A4) which further infuriated you. Thus, you (A1), (A4) and (A7) have strong motive to eliminate Amit Jethwa as you were very much annoyed with the activities of the deceased Amit Jethwa.
4. You (A7) have also threatened the Amit Jethwa (deceased) earlier on many occasions, but deceased (Amit Jethwa) continued his efforts to expose you (A7).
5. You accused persons (Al), (A4) &. (A7) were annoyed with the deceased Amit Kumar Bhikhubhai Jethwa.
6. That you (A7)during the relevant period in the year 2010 with accused Bahadursinh Dhirubha Vadhera and Pratapbhai @ Shivabhai Solanki at your farm house in Village Harmadiya and other places, 23 months prior to the murder of Amit jethwa hatched a criminal conspiracy by you other accused persons as Bahadursinh Dhirubha Vadhera (Police Constable) (Al) was very close to you and A4 and in furtherance of the said criminal conspiracy with accused, it was agreed that Pratapbhai @ Shivabhai Solanki (A4) would provide the necessary financial assistance Page 12 of 118 HC-NIC Page 12 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT for the assassination of Amit Jethwa, whereas accused person Bahadur Sinh Dhirubha Wadhera would search out a supari killer. That you (A7) instructed accused Bahadursinh Dhirubha Vadhera to arrange for the murder of Shri Amit Jethwa and on your specific instruction accused, Baftadursinh Dhirubha Vadhera arranged the coaccuse Shailesh Nanalal Pandya (shooter) (A6) through coaccused Pachanbhai (A2) to commit the murder of Amit Jethwa.
7. In furtherance of the said criminal conspiracy in pursuance of the said conspiracy, two SIM cards having No. 7698085798 and 7698085799 were obtained by accused (Al). The false ID documents were submitted to obtain these two SIM cards. The SIM card No.7698085799 was kept with you accused Bahadursinh Dhirubha Vadhera (Al) and the other. SIM card No. 7698085798 was handed over to accused (A3) Sanjay Prataphai Chouhan for the purpose to communicate to the accused Bahadursinh Dhirubha Vadhera (Al) by accused (A3) Sanjay Prataphai Chouhan during the plot of assassination of Amitkumar Bhikhubhai Jethwa.
8. In furtherance of the said criminal conspiracy you accused Pachanbhai (A2) had prepared the accused Shailesh Nanalai Pandya (shooter) (A6) to murder the Amitkumar Bhikubhai Jethwa after getting supari money for the said murder. It was also agreed that motor bike would be provided by the Bahadursinh Dhirubha Vadhera (Al).
9. In furtherance of the said criminal conspiracy you accused Shailesh Nanalai Pandya (shooter) (A6) could not recognize Amitkumar Bhikubhai Jethwa in person, therefore you accused (A3) Sanjay Prataphai Chouhan had helped Shailesh Nanalal Pandya (shooter) (A6) in recognizing the Amitkumar Bhikubhai Jethwa, therefore you accused Bahadursinh Dhirubha Vadhera (Al) called you accused (A3) Sanjay Prataphai Chouhan from Una to Ahmedabad. That you accused (A3) Sanjay Prataphai Chouhan showed Amitkumar Bhikubhai Jethwa. The accused Person (A3) Sanjay Prataphai Chouhan was made to be well acquainted with the location of office of Amitkumar Bhikubhai Jethwa with the regular route of travelling to the office from residence.
10. In furtherance of the said criminal conspiracy you accused Bahadursinh Dhirubha Vadhera (Al) and accused person (A3) Sanjay Prataphai Chouhan contacted accused Pachanbhai (A2) and Shailesh Nanalai Pandya (shooter) (A6). That you accused Pachanbhai (A2) provided the detail of residence, office and route used by him to go to work etc. of Amitkumar Bhikubhai Jethwa to the accused Shailesh Nanalai Pandya. (shooter) (A6). That during that period you accused (A3) Sanjay Prataphai Chouhan stayed at the Hotel Konark along with you accused Pachanbhai (A2). That you accused Bahadursinh Dhirubha Vadhera (Al) has used his Maruti Swift Car having No. GJ.U.S.6873 and took accused (A3) Sanjay Pratapbhai Chouhan in his car.
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11. In furtherance of the said criminal conspiracy you accused Bahadursinh Dhirubha Vadhera (Al) asked accused Shailesh Nanalai Pandya (shooter) (A6) to commit! the murder of Amitkumar Bhikhubhai Jethwa and you accused Shailesh Nanalai Pandya (shooter) (A6)agreed to carry out the plot of killing Amitkumar Bhikhubhai Jethwa for a price and you accused Bahadursinh Dhirubha Vadhera (Al) assured to give an amount of Rs. 10 lakh to the murderer of killing Amitkumar Bhikhubhai Jethwa and if Amitkumar Bhikhubhai Jethwa would be killed urgently the accused Bahadursinh Dhirubha Vadhera (Al) assured to give another Rs. 1 lakhs extra, therefore, it was agreed to give total Rs.11 lakh for an immediate killing of Amitkumar Bhikhubhai Jethwa. This meeting of accused Bahadursinh Dhirubha Vadhera (A1) and Shailesh Nanalal Pandya (Shooter) (A6) held in presence of accused Pachanbhai (A2) and (A3) Sanjay Prataphai Chouhan. That you accused Bahadursinh Dhirubha Vadhera (Al) got the Bajaj Discover Motor Bike having No. GJ.l.DE.4252from his friend Sameer Haji Rasool and handed over the Bajaj Discover Motor Bike and the SIM card No. 7698085798 to the accused Shailesh Nanalal Pandya (shooter) (A6) through the accused (A
3) Sanjay Prataphai Chouhan.
12. In furtherance of the said criminal conspiracy you accused Shailesh Nanalal Pandya (shooter) (A6) watched the movements of Amitkumar Jethwa on 19.07.2010 and stayed in the night at Hotel of Vikramkumar Nayak and during the period, the accused (A5) Udaji Kantiji Thakore used the mobile phone No. 9723389358.
12. In furtherance of the said criminal conspiracy, on 20.07.2010 at about 2040 hrs., accused Salesh Nanalal Pandya changed the number plat of Bajaj Discover Motor Bike. The accused Udaji Kantiji Thakore (A5) was with the accused Shailesh Nanalal Pandya (shooter) (A6) and they stayed for the arrival of Amitkumar Jethwa at Satyameva Jayate, in front of Gujarat High Court on S.G. Highway. Sh. Amitkumar Bhikubhai Jethwa was about to sit in his Maruti Gipsy Car. At that time, the you accused Shailesh Nanalal Pandya (shooter) (A6) fired a locally made Zip Gun at the back of Amitkumar Bhikhubhai Jethwa was seriously injured on his back. And at that time you accused Shailesh Nanalal Pandya (shooter) (A
6) and Udaji Kantiji Thakore (A5) were trying to ride on the Bajaj Discover Motor Bike, the seriously injured Amitkumar Bhikhubhai Jethwa tried to stop you. He pull down both of you from the Bajaj Discover Motor Bike and both of you accused persons fell down and in their embarrassment both of you left the motor bike and your locally made Zip Gun at the place of offence and both of you successfully absconded from the place of incident safely. Due to the fatal injury caused to him due to the firing of single round from the locally made Zip Gun, Amitkumar Bhikhubhai Jethwa died at the place of offence itself.
13. In this case, after the completion of the offence, after the payment of supari money the accused No.l Bahardursinh Dhiruba vadhera had Page 14 of 118 HC-NIC Page 14 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT destroyed the Mobile phone which was used to contact with other Accused person.* The mobile and its SIM Card were thrown into the flowing water of Hiran River in the Gir Jungle.
14. That in furtherance of the said criminal conspiracy all the accused persons Al to A7 acted in a manner as mentioned above and have committed offence punishable u/s 120B r/w 302 and 201 IPC.
1.6. In this way you all the accused persons (Al to A7) during the relevant period of year 2010 at Kodmar, Ahmedabad and other places hatched a conspiracy and agreed to commit murder of Sh. Amitkumar Bhikubhai Jethwa. The murder of the aforesaid person was in fact committed in pursuance of the agreement, and thereby committed an offence punishable under section 120B;;r/w 302 and 201 of LP.C. and within my cognizance.
17. In furtherance of the said criminal conspiracy you accused (A6) Shailesh S/o Shri Nanalai Pandya stayed in the Hotel at Ahmedabad 14.07.2010 to 15.07.2010, 16.07.2010 to 17.07.2010 and later on along with accused Udaji Kantiji Sonaji Thakore (A5) on 18.07.2010 and that you accused Shailesh S/o Shri Nanalai Pandya used a false name and identity to put a stay in this Hotel during this time and used the false name of Sanjay Nanjibhai Rabari and produced the identification proof of a false Election Voter Card of Sanjay Nanjibhai Rabari. That you accused had conducted a recce of the surrounding areas of the residence of Amitkumar Bhikhubahi and the surroundings areas of the office of Amitkumar Bhikhubahi (deceased).That you accused No.6 Shailesh S/o Shri Nanalal Pandya changed the number plate of Bajaj Discover Motor Bike at Shiv Service Point Garage at Una That on 20.07.2010 at 2040 hrs. That you accused No. 6 accompanied with accused No.5 were waiting the arrival of Amitkumar Bhikubhai Jethwa at Satyameva Jayate Complex, in front of Gujarat High Court on S.G. Highway. That Amit Kumar Bhikubhai Jethwa about to sit in his Maruti Gipsy Car and at that time that you accused Shailesh Nanalal Pandya (shooter) (A6) fired a locally made zip gun at the back of Amit Kumar Bhikubhai Jethwa resultantly the said Sh. Amit Kumar Bhikubhai Jethwa was seriously injured on his back. That you accused Shailesh Nanalal Pandya (shooter) (A6) along with accused No. 5 were tried to ride away on the Bajaj Discover Motor Bike and Sh. Amit Kumar Bhikubhai Jethwa tried to stop to both of you and as a result he pull down both of you from the Bajaj Discover Motor Bike and both of you accused persons fell down on the road and run away from the place of the incident and left the Motor Bike, their locally made Zip Gun at the place of offence. You accused Shailesh Nanalal Pandya (shooter) (A6) had fired at Amit Kumar Bhikubhai Jethwa and due to the fatal injuries caused to him due to the firing of a single round from the locally made Zip Gun, Sh. Amit Kumar Bhikubhai Jethwa died at the place of the offence.
Page 15 of 118HC-NIC Page 15 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT
18. In furtherance of the said criminal conspiracy you on 20.07.2010 at about 2040 hrs., at Satyameva jayate, in front of Gujarat High Court on S.G. Highway committed murder by intentionally/ knowingly causing the death of Sh. Amit Kumar Bhikubhai Jethwa and that you thereby committed an offence punishable u/s, 302 of the Indian Penal Code and within the cognizance of this Court.
19. In furtherance of the said criminal conspiracy you accused (A
6) Shailesh S/o Shri Nanalai Pandya accompanied with accused Udaji Kantiji Thakore (A5) were waiting for the arrival of Amitkumar Bhikubhai Jethwa at Satyameva Jayate Complex, in front of Gujarat High Court on S.G. Highway. When Amit Kumar Bhikubhai Jethwa was about to sit in his Maruti Gipsy Car and at that time that you accused Shailesh Nanalai Pandya (shooter) (A6) fired a locally made zip gun at the back of Amit Kumar Bhikubhai Jethwa resultantly the said Sh. Amit Kumar Bhikubhai Jethwa was seriously injured on his back. That you accused Shailesh Nanalai Pandya (shooter) (A6) along with accused Udaji Kantiji Thakore (A5) run away from the place of the incident and left the Motor Bike, their locally made Zip Gun at the place of offence. Sh. Amit Kumar Bhikubhai Jethwa died at the place of the offence. Therefore, you accused Shailesh Nanalai Pandya (shooter) (A6) have in possession on fire arm without any licence or authority and have used the said fire arm as committed murder intentionally of Sh. Amit Kumar Bhikubhai Jethwa and thereby has committed an offence punishable under section 25(1B)(a) and 27 of the Arms Act, 1959 and within the cognizance of this Court.
20. I hereby direct that all of you be tried on the said charge, as you all have committed the said offence within the jurisdiction of this Court. The aforesaid charge has been read over and explained to all the accused persons in the open Court this 18th day of May, 2016.
Date: 18052016. (Dinesh L. Patel) Special Judge C.B.I. Courts, Court No.4, At Mirzapur, Ahmedabad.
Unique ID Code No.GJ00381."
14 The recording of the evidence commenced. In a span of almost one year, the Trial Court recorded the evidence of 195 witnesses. Out of 195 witnesses examined by the prosecuting agency i.e. the C.B.I., 105 witnesses turned hostile. The breakup of the witnesses examined is as under:
Page 16 of 118HC-NIC Page 16 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT "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."
15 It appears that as one after the other the witnesses started resiling from their statements made before the police, the writ applicant herein preferred a Special Leave Petition before the Supreme Court and prayed for cancellation of bail of Dinu Bogha Solanki. It was pointed out to the Hon'ble the Supreme Court that Dinu Bogha Solanki, who was ordered to be released on bail subject to certain conditions, had flouted the same by tampering with the prosecution witnesses. Before the Hon'ble the Supreme Court, the C.B.I. filed two affidavits supporting the case put up by the writ applicant. In one of the affidavits filed by the C.B.I. 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 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 Page 17 of 118 HC-NIC Page 17 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT instant case. The PW26 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 PW26, 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 (Coaccused) 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 AnnexureR1. 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 AnnexureR2. 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 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 AnnexureR3 and a true copy of the letter dated 5.03.2014 is annexed herewith and marked as AnnexureR4 and a true copy of the letter dated 30.09.2015 is annexed herewith and marked as AnnexureR5. 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.Page 18 of 118
HC-NIC Page 18 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 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 pass any other order as this Hon'ble Court may deem fit and proper in the interest of justice. As the accused applicant don't deserve any leniency as he violated the conditions of the bail in the interest of justice."
16 In one another affidavit filed on behalf of the C.B.I. before the Honourable Supreme Court duly affirmed by Shri S.S. Kishore, the Superintendent of Police, Central Bureau of Investigation, Special Crime II, New Delhi, the following has been stated:
"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 Page 19 of 118 HC-NIC Page 19 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 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."
17 Thus, it is evident from the two affidavits filed by the C.B.I. that Dinu Bogha Solanki and the other coaccused started administering threats to the witnesses and thereby dissuaded them to depose the truth before the Trial Court.
18 Let me now look into the various complaints made by the witnesses of threats being administered by Dinu Bogha Solanki and his accomplices:
"Rambhai Hajabhai Solanki At : Damli, Tal. Kodinar District: Gir Somnath Mob. 9274676773 Date 7/12/2013 To, The Director Shri C.B.I. Head Office CGO Complex Crime II, 2nd Floor, Lodhi Road, New Delhi.
Reg: To give protection to my self and my family due to risk on myself and my family members.
Respected Sir, With reference to the above subject I am stating that I am dwelling at Damli Village of Kodinar Taluka and maintaining my livelihood by doing labor work. I have worked in the Farm House situated at Harmadiya for 8 years with the member of the Parliament and present M.P. Of Junagadh Shri Dinu Bhogha. I was performing my duty at his firm house when he was murdered. The case of Amit Jethva's murder is being handed over to C.B.I. by High Court. I was investigated & cross examined as a part of investigation of this case by the C.B.I. as a witness of this case. My statement was also taken on 16/5/13 at Delhi.
Thereafter, Dinu Bogha was arrested on 5/11/13 by the C.B.I.'s Page 20 of 118 HC-NIC Page 20 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT investigation team and he is behind the bars at Sabarmati Jail. But Dinu Bogha is well aware that I have given statement under Column164 in this case. Hence, Dinu Bogha has asked his brother Amarsinh Bogha and he has sent his brother in law viz: Pratap as Natha Duda Barad at my house and he has tried to threaten me.
They are continuously threatening & pressurized us to withdraw the statement which is given by me as witness by taking money and to execute affidavit in favour of Dinu Bogha.
When I was coming at my native village 'bamli of Kodinar at my house, the nephews Ghanshyam, Dipu Solanki and Raju Hamir Solanki threaten me near my house to cut the legs when Dinu Bogha will be relieved on ball. The supporters of Dinu Bogha are also threatening me that they will take some action against me when he will be relived from the prison. They are also threaten me by the Kodinar Police by doing false representation in the Kodinar Police Station. I am suspected and afraid that Dinu Bogha Solanki can hijack, me, killed me or killed me in an accident from the jail or exploiting my family members or he can imprisoned my family members by raising false complaint in the Police. Dinu Bogha is a criminal history sheeter as he is involved in many murder cases hence I am very much afraid and hence, my life is always in danger because he can do anything. Even after frequent representation before this, no steps for my protection is being taken. Due to the risk of my as well as my family's our life, I am requesting your good honour to provide my protection & safety on permanent basis."
"Dhirsinhbhai Karsanbhai Barad At Devdi (Desani) Tal. Kodinar District: Gir Somnath (Guj.) Date 7/12/2013 To, The Director Shri C.B.I. Head Office CGO Complex Crime II, 2nd Floor, Lodhi Road, New Delhi.
Reg: To give protection to my self and my family due to risk on myself and my family members.
Respected Sir, With reference to the above subject it is inform to you that I have perform Page 21 of 118 HC-NIC Page 21 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT service as Member of Parliament of 47 - Kodinar - Khambha Election area from 1990 to 1995 and 2009 to 2012. During my tenure as Member of Parliament, the RTI Activist Late Shri Amit Jethva was murdered in front of the High Court at Ahmedabad. Presently, this case is under the investigation of the C.B.I. The officers of the C.B.I. has investigated me at Devli and taken my statement in this connection and they have procured some papers related to the Mines and Minerals as well as papers of Amit Jethva.
On 5/11/2013 C.B.I. Team has arrested Dinu Bogha Solanki and presently he is imprisoned in the Sabarmati Jail. A meeting of his supporters as well as his relatives was held on 05/11/13 same day at his house at the time of Dinu Bogha's arrestment.
In this meeting the brother of Dinu Bogha Shri Amar Solanki has declared in open that on receipt of the bail & on releasing of Dinu Bogha, they will shut dead all the family member with Dhiru Barad. He has given this threaten in the open.
The supporters, relatives and nephews of Dinu Bogha are also threatening me that they will take some action against me when he will be relived from the prison. They are also threaten me by the Kodinar Police by doing false representation in the Kodinar Police Station. I am suspected and afraid that Dinu Bogha Solanki can hijack, me, killed me or killed me in an accident from the jail or exploiting my family members or he can imprisoned my family members by raising false complaint in the Police. Dinu Bogha is a criminal history sheeter as he is involved in many murder cases hence I am very much afraid and hence, my life is "always in danger because he can do anything. Even after frequent representation before this, no steps for my protection is being taken. Due to the risk of my as well as my family's our life, I am requesting your good honour to provide my protection & safety on permanent basis."
"Manubhai Jesinhbhai Dodia Add: Nr. Bansidhar Society At: Firm, Kodinar - 362725 Tal. Kodinar Dist. Gir Somnath Mob. No.9275352642 Date 13/12/2013 To, The Director Shri C.B.I. Head Office CGO Complex Crime II, 2nd Floor, Lodhi Road, New Delhi.Page 22 of 118
HC-NIC Page 22 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT Reg: To give protection to my self and my family due to risk on myself and my family members.
Respected Sir, With reference to the above subject, it is to inform to you that I was working as Grievance Officer from 1/1/1990 to 30/9/2009 in the Consumer Forum (Government approved) situated at Kodinar. At present, I am working as Personnel Assistant (P.A.) of Member of Parliament Dhirsinhbhai K. Barad since 01/10/2009. I am handling his office of Kodinar.
Since then when I was a incharge of the office of Shri Dhirsinhbhai Barad I have run campaign against the illegal mining in this area and try to stop / close this mining after getting various from RTO under Right to Information Act. I was came in touch with Late Shri Amit Jethva during this period. We were sharing many information on the mobile and some correspondence was also made regarding the above matter. I meet him personally at Gandhinagar. But on 20/7/2010 Amit Jethva was shoot dead in front of the High Court. The investigation of his case in progress with C.B.I. I have handed over many papers to G.B.I. on 22/2/2013 at Diu which were lying in my office. CBI Team was arrived at Kodinar for the above mentioned work. I have also handed over the papers at Diu and also handed over the papers from Ahmedabad office on 09/11/2013 to the C.B.I. I have also handed over .some important papers regarding Late Amit Jethva's Case personally from Diu Office, Ahmedabad as well from Delhi's office. I am an important witness in this case.'"
But on 05/11/2013 Dinnubha Bhogha Solanki was arrested by the C.B.I .and at present he is imprisoned in the Sabarmati Jail. They are threatening myself & my family members to kill when he will be relieved on bail from the prison. There is always risk of my life as their relatives, supporters. His brother can hijack, kill or killed me in any accident or they can accused by admitting false complaint. I am suspect that his person can exploit or harass our relatives. As Dinu Bhogha Solanki is having vast political network and also having political background and he is also involved in many murder cases he can cross any limit means he can do anything. Hence, my life is always in danger.
Even after frequent written representation regarding this matter before this but there is no arrangement or action has been taken for my protection. I am requesting your kind self to make arrangement for my as well as my family's protection/security on permanent basis."
Page 23 of 118HC-NIC Page 23 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT "In this the witness Shri Kanaksinh Pratapsinh Parmar humbly submits that :
In this case I have received the summons to give the deposition and since I received the summons, the telephone calls of our unknown persons are coming and I am being told to depose in this case in the manner to become helpful to them and other members of my family who are residing at my native place, they are also being pressurized by the persons of the accused to hostile in this case. I have the doubt that there is all possibilities that the loss and damage would be caused to my life and properties by the accused or his men after giving deposition by me. Therefore in the aforesaid circumstances Your Honour is humbly requested to pass appropriate order so that the police protection would be available to me after my deposition in this case is completed so that the accused or his men may not cause any loss and damage to my life and property and also to my family members.
Ahmedabad Sd/illegible
Date : 15/10/2016 (Kanaksinh P. Parmar)"
"To,
The S.P.
CBI Special Crime II New Delhi.
Subject : Regarding Amit Jethwa murder case No.RCII(S)/2012/SCII, New Delhi.
Respected Sir, I have Your Honour to state with reference to above subject that I. am the prime witness in the said case. Now a days crossexamination for the witnesses is being carried out by the Special CBI Court at Ahmedabad. As I was summoned by C.B.I, to depose before the court in connection with the said sensational murder case. I, personally appeared before the C.B.I, court on 15th Sept., 27th Sept; 30th Sept. 2016 respectively. But my deposition could not be taken so far due to some pendency. I further want to draw your kind notice that my next date for deposition is held on tomorrow (date 1/10/2016) and in this regard Mr. Dinubhai Solanki and his nephew Shiva Solanki, the prime conspirators, in the said murder case pressurized my elder brothers to get me turned hostile. They have made tireless efforts to get me turned hostile but I am religiously firmed till now. Their constant pressure to get me turned hostile may drive the case on wrong way and ultimately it may adversely affect the prosecution.
I hereby humbly abide to my previous statement and putting myself in favour of the court of justice. This uneven pressure on one from Solanki Page 24 of 118 HC-NIC Page 24 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT family may be held as criminal action from their side. Mr. Shiva Solanki and Mr. Jagubhai Dodiya went to my elder brother Mr. Deepsinh Parmar (Velva, Tal. Kodinar) on 12/10/2016 and they also tried to make my brother (eldest) Mr. Jeetsinh Parmar emotionally blackmail in this regard. Moreover some unknown phones are being sent on my mobile to put me under pressure.
I humbly request you to take legal actions against Mr. Dinubhai Solanki and Mr. Shiva Solanki so that they may not pressure on me unnecessarily.
Thanking you, Yours faithfully, Sd/illgible (Kanaksinh Parmar) Date :14102016 Mr. Kanaksinh P. Parmar Block No.694/1, D Type Sector8, Gandhinagar."
"The Superintend of Police CBI, Special Crime II C.G.O. Complex, Lodhi Road, New Delhi.
Subject : With regard to providing protect to the witness Shri Manendrasinh S/o. Raghunandansinh Kuswah.
Respected Sir, With reference to the aforesaid subject it is respectfully informed that I, Manendrasinh S/o. Raghunandansinh Kuswah is residing at : Village Dholapur, PostMalala Tal.Pukhrayan, Dist. Kanpur Dehat, Uttar Pradesh and in respect to the CBI Case No. RC.No.II(S) 2012 / SCUV/CBI/SCII/New Delhi, my deposition is fixed on 31/1/2017 at 10:30 a.m. in the Court of Special Judge, CBI Court No.4, Mirzapur at Ahmedabad in Gujarat. In this regard I request you that the opposite side persons are the criminals having the violent nature and every time they give threat to me that if I depose in favor of CBI, then they would kill me.
You are requested that while giving the deposition the arrangement be made to provide the police protection to me by the Hon'ble Judge and Court while going to the court returning at home so that I can give cooperation to the Government, otherwise it would not be Page 25 of 118 HC-NIC Page 25 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT possible to give deposition.
Thanking You, Date : 20/01/2017 Yours faithfully, Sd/Manendrasinh (Manendrasinh s/o.
Raghunandansinh Kuswah Village Dhokalpur PostMalala, Dist. Kanpur Dehat"
19 On 5th March 2014, one Shri Anil Sinha, IPS, the Special Director, CBI, addressed a letter to the then Director General of Police, Gandhinagar, Gujarat stating as under:
"Kindly refer to letter No.6753/3/11(S)/2012/SCU.V/SCII/CBI/ND dated 09.10.2013 of Sh. R.S. Bhatti, Joint Director (SC), CBI, New Delhi to provide adequate security to important witnesses in the above said case. However, no action has been taken in the matter.
2 Shri Rambhai Hazabhai Solanki r/o village Damali, Taluka Kodinar Distt. Gir Somnath, Shri Mannubhai Jasinbhai Dodiya r/o Near bansidhar Society, in Vadi (farm) Taluka Kodinar, Distt. Gir Somnath and Shri Dhirsinhbhai Karsanbhai barad r/o Devdi (Dedani), Taluka Kodinar, Distt. Gir Somnath, Gujarat have again sent complaints alleging that they and their families are receiving threats to life from Shri Dinubhai Boghabhai Solanki, MP. They are extremely anxious with regard to their own and their families safety.
3 It is, therefore, requested that necessary steps and measures as deemed fit may be taken immediately so that safety and security of these extremely crucial witnesses can be ensured. The action taken may pleased be intimated to this office."
20 The Trial Court passed one order below Exhibit: 723 dated 31st January 2017, which reads as under:
"CBI Sessions Case No.2 o f 2014 WITH CBI Sessions Case No.1 of 2014 Page 26 of 118 HC-NIC Page 26 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT WITH CBI Sessions Case No.3 of 2014.
Order below Exh.723.
1. I have read the letter written by the witness viz. Mr. Monendra Sinh, s/o. Raghunandan Sinh Kushwaha to the Superintendent of Police, CBI, New Delhi wherein the said witness has narrated in his letter that he has been given threatening from, the accused side and for that, he has asked for the protection to attend me Court of the undersigned for giving the deposition.
2 I, have considered the statement % of the said witness recorded by the CBI during the time of investigation wherein it appears that the said witness was there nearby the place of offence and he was serving as a security personal in the Axis Bank ATM. For that, I am also having such a view that the : said witness be given sufficient protection by CBI for attending this Court and for that, I pass the following order.
ORDER 1 . The CBI, New Delhi i s directed that sufficient protection be given to the said witness for attending the Court expeditiously and produced said witness before this Court.
2. A copy of this order be provided to this CBI.
Date: 31.01.2017. (Dinesh L. Patel) Special Judge C.B.I. Courts, Court No.1 Ahmedabad."
21 Thus, there is thumping material on record to indicate that the accused persons, more particularly, the main accused Dinu Bhogha Solanki, by his sheer power and position, saw to it that none of the witnesses dare to say a word against him and the other coaccused before the Trial Court. Right from the inception, Dinu Bogha Solanki dominated the proceedings. He controlled the entire investigation and such was the reason why the Division Bench of this Court had to transfer Page 27 of 118 HC-NIC Page 27 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT the investigation to the C.B.I. This is the right stage for me to quote the observations made by the Division Bench of this Court in the Special Criminal Application No.1925 of 2010 and allied matters on the basis of which the investigation came to be transferred to the C.B.I. The whole idea in quoting the observations is to highlight how Dinu Bogha Solanki dominated the investigation and saw to it that not a split of his hair gets damaged.
"9. Examining the investigation in light of the submissions made by learned counsel and learned public prosecutor, the following salient features emerge for consideration and for deciding whether further investigation by an outside agency is required to be ordered.
(a) Prima facie, the deceased son of the petitioner was an RTI activist and sole petitioner in the PIL, being SCA No.7690 of 2010, wherein two persons were, recently before the murder, joined as respondents and one of them is already accused of the offence under sections 302 and 120B of IPC. It is nobody's case that the deceased victim of the offence was a blackmailer or a busybody. Instead, there is sufficient material suggesting that he was in the activity of inculcating public awareness about environmental issues and taking legal remedies for preventing environmental degradation, particularly in and around the reserved forest and Gir Sanctuary.
(b) According to the FIR registered as IC.R.No.163 of 2010, the deceased was killed at 20.40 hours on 20.7.2010 and the FIR was registered at 22.06 hours. The FIR itself mentioned address of the deceased and his mobile phone was also found on the spot. However, no effort was made to either inform any member of his family available nearby or call them to the police station before registration of the FIR through a police personnel. Those facts naturally strengthen the suspicion that any relative or acquaintance of the deceased was deliberately prevented from naming anyone even as a suspected perpetrator of the crime in the FIR itself. Undisputably, name of a person as a suspect in the FIR would be one of the decisive factors for many purposes throughout the investigation and trial.
(c) It was also noticed upon bare reading of the FIR that it was registered under the guidance and advice of higher officers who were present at the police station. According to the statement of Mr.H.M.Kundaliya, the Police Inspector of Sola Police Station, Page 28 of 118 HC-NIC Page 28 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT identity of the deceased was immediately known on reaching the scene of offence and he had informed the higher officers. And the Police Commissioner, the Deputy Police Commissioner, ZoneI, the Joint Police Commissioner, the Deputy Police Commissioner (Crime) and the Police Inspector of Crime Branch had also immediately arrived at the police station and those officers included Shri Mohan Jha, Special Police Commissioner, Crime Branch, Ahmedabad. It is also stated by Mr.Kundaliya that he had taken over the investigation and conducted it till 16.08.2010 when the investigation was ordered to be transferred by order of the Police Commissioner. The order to transfer the investigation does not mention any reason and it is dated 15.08.2010, a national holiday.
As noticed from the affidavit of Superintendent of Police Mr.Vatsa, even during the further investigation, he was required to continuously brief and inform Mr.Mohan Jha as his supervisory officer and Special Police Commissioner, Crime Branch, Ahmedabad. It could be argued, on that basis, that Mr.Mohan Jha continued to guide and control even the further investigation under the order of this Court and, therefore, it was unlikely that any new line of investigation could be pursued which might affect the chargesheets already submitted.
(d) While Mr.Kundaliya was in charge of the investigation, statements of father, wife, brothers, mother and friends of the deceased were recorded and specific names of the suspects were repeatedly mentioned therein, but no arrests were made and the investigation did not appear to have made any progress. It was only after the aforementioned order dated 02.08.2010 in the PIL, then pending before this Court, and the order transferring the investigation that arrests were made. However, although name of Mr.DB was mentioned as the main suspect in at least 8 statements recorded till then and threats received by the deceased were also mentioned, he was neither approached for interrogation nor was any notice issued under section 160 of Cr.P.C. till 15.9.2010.
(e) By the time Mr.DB was called for recording his statement on 16.09.2010, the other persons whom the police found to be involved in the offence were already arrested, except two persons one of whom was alleged to have actually fired upon the deceased. That person, namely, Shailesh Pandya, was arrested by a transfer warrant on 20.11.2011 from the custody of Mumbai police by whom he was already arrested in connection with other offence. However, long before that, upon the very first arrest of Bahadursinh Dhirubha Vadher on 16.8.2010, it was admitted in his own statement recorded by Mr.Kundaliya that he had arranged for the funds for contract killing of the deceased and that Mr.DB was not involved in the conspiracy. Thus, the progress of Page 29 of 118 HC-NIC Page 29 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT investigation clearly indicated that the investigators were relying more upon the statements of the arrested person than the statements recorded earlier of the relatives and acquaintances of the deceased. Even while filing the chargesheet, statements dated 22.7.2010 and 28.7.2010 of independent and important witnesses, such as, learned advocate Mr.Anand Yagnik and Mr.Kanaksinh Parmar respectively were not annexed with the chargesheet.
(f) It is noted in the case diary on 20.08.2010 that the news about the police being in search of Shiva Solanki were leaked in advance and it being spread through media and being telecast, he could not be located in spite of enquiring through very secret sources and informants. That was the stage of investigation when it was transferred to and taken over by DCB on 16.08.2010 and on that very day one of the main accused persons, namely, Bahadursinh D.Vadher, was arrested and had practically dictated in great detail his motive, plan, execution and sufficiency of resources for arranging the elimination of late Shri Amit Jethava - without ever mentioning the name of even Shiva Solanki. He had admitted that he was working with the police department since 1999 and was posted at Gir Gadhada Police Station as wirelessset operator since last six months, had bought two mines in partnership with others and realized that mining at the said mines was illegal and hence had not started the mining. Thereafter, his statements were recorded everyday from 18th to 30th August, 2010. During the course of such custodial interrogation, it was on and from 19 th August that he added that he had decided with Shiva Solanki to kill Amit Jethava for which Shiva was to provide the money. And in his statement of 29.8.2010 he stated that the account with Shiva could not be settled as he was already arrested before such settlement. Although nothing can be treated or held to be proved at this stage, the sequence of events and the statements clearly indicated that even the name of Shiva Solanki was being introduced in a careful and planned manner with leakage of sensitive information for the public including others involved in the offence. When Shiva Solanki was arrested on 07.09.2010, his statements with a matching version were recorded everyday from 07.09.2010 to 20.09.2010 with details of his decision and understanding with Bahadursinh to kill Amit and of his own motive and resources; but not once did these accused persons appear to have been asked one question about involvement of Mr.DB. Instead, Shiva is stated to have clarified that, no one else was informed about his understanding with Bahadursinh. During the course of such interrogation, Mr.DB was learnt on 15.9.2010 to be visiting Ahmedabad and then notice was issued to him under section 160 of Cr.P.C., according to the case diary. Then on 16.09.2010 his statement was recorded wherein he claimed not only complete innocence but ignorance Page 30 of 118 HC-NIC Page 30 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT about even the activities of Amit Jethava and difficulties caused to him. He in fact urged for independent and deeper probe of the offence. This line of interrogation substantiates the submission that the investigating agency was following the clues offered by the arrested persons rather than the other independent or interested witnesses.
(g) The statement of Mr.DB recorded after apparently solving the mystery of the murder clearly appeared to be an empty formality at the convenience and invitation of Mr.DB. A fair, proper and prompt investigation in case of such a crime, by an ordinary police officer, would have inspired immediate custodial interrogation of the prime suspects; but in the facts of the present case, the investigating officer practically remained clueless for first 25 days after the murder and then suddenly, with first arrest and first statement of the arrestee on the first day of investigation, the case was practically solved. How that first arrestee, not named till then by any witness or in any statement recorded till his arrest, was identified as a suspect and arrested on 16.08.2010 itself after the order to transfer the investigation, is not clear. By a curious coincidence, the complainant who dictated the FIR under supervision of somany higher officers and the first arrestee who offered complete solution to the investigating agency in his first statement before a special branch of the police, both happened to be serving police personnel under the higher officers under whom the investigation could otherwise hardly make any headway for 25 days. At both important points of registering and cracking the case, the common factor also was the same higher officer Mr.Mohan Jha, then in charge of City Crime Branch. He also supervised the further investigation as Special Commissioner of Police, Crime Branch, by virtue of a special order issued in that regard by the Director General of Police. It has also transpired during the investigation that Shailesh Pandya, who is alleged to have actually fired upon the victim, had not returned to Sabarmati Jail after obtaining temporary bail in February 2010 and hence his illegal freedom was at the mercy of the police. That was sufficient to substantiate the submission that the State police was controlling the investigation rather than carrying it out in a fair, impartial and prompt manner. These factors also lend credence to the allegation that the accused persons and prime suspect had such influence in the higher echelons of policepower, that the officers of the lower ranks would not dare to displease them.
(h) During the course of further investigation after direction of this Court, the chief investigating officer Mr.Vatsa is stated to have taken further statements of the witnesses. Thereafter, an application was made by him for custodial cross interrogation of several accused Page 31 of 118 HC-NIC Page 31 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT persons for the purpose of ascertaining the role of Mr.DB. In that application dated 07.12.2011, it was specifically mentioned by Mr.Vatsa that Bahadursinh was interrogated from 16.8.2010 to 30.8.2010 while he was in police custody, whereas Shiva Solanki could be arrested only on 07.9.2010 after absconding for 45 days, while the progress of investigation was required to be reported to the High Court in the PIL which was then pending. Thus, according to the application, Shiva Solanki was aware about the investigation and as that accused is well educated, very clever and knowing the law as also having political influence, he had not disclosed full details of the conspiracy and hence custodial cross interrogation of Shiva Solanki and Bahadursinh was required to collect evidence in respect of other persons involved in the offence. That application was rejected by the Court by a cryptic order and then opinion of Public Prosecutor was sought by Secretary of the Department of Law. Learned Public Prosecutor concerned opined in writing on 19.12.2011 that it would not be proper to challenge the order of the trial court because chargesheet was already submitted against all the accused persons who were already arrested and no other accused person remained to be arrested. He also noted the fact that the application for remand was rejected as no reasons were made out at that stage and the application was not maintainable. In the opinion of the Public Prosecutor, it was an absolutely reasonable and legal order and it did not deserve to be challenged. Thus, in short, even the feeble attempt made at proper further investigation was stopped by a presumptive opinion of learned Public Prosecutor that "all the persons who were chargesheeted were already arrested and no other accused person was remaining to be arrested." The averments made by Mr.R.Vatsa, who conducted the further investigation, as related in para 6 herein, did not inspire confidence insofar as close proximity of Shiva Solanki and Mr.DB and their interaction inter se before and after the crime , even to the extent discovered during the investigation, would have led an honest investigation to conclusions and inferences quite contrary to those drawn by the officer. He only made a weak attempt at proving his sincerity by applying for custodial interrogation of some of the accused and that attempt was simply smothered by the opinion of the District Government Pleader, as aforesaid.
(i) Where no one appears to be an eye witness to firing upon the deceased, not only identity of the persons alleged to have assaulted the deceased, but identity of the persons who would have strong motive for eliminating the deceased ought to have been fully and properly investigated. Instead, the investigating agency relied mainly upon statements of the persons who were already arrested and practically stopped at them in spite of the order for carrying out further investigation in light of the averments and allegations made in the Page 32 of 118 HC-NIC Page 32 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT petition. It has come on record that Mr.Shiva Solanki and Mr.DB were living together in a joint family and no investigator could have been easily satisfied with the statements that they did not interact in respect of the conspiracy to commit a capital crime, particularly when both of them were simultaneously joined as respondents in the PIL.
(j) The statements recorded during the course of further investigation have been disputed by the witnesses by filing affidavit before this Court to state that their statements were not correctly or accurately recorded. If that is true, even the further investigation was not fair and bona fide. The incorrect statements made by Superintendent of Police Mr.Vatsa regarding past record of Mr.DB, as seen and discussed earlier in para 3 herein, clearly indicated an attempt at somehow shielding the person who was the prime suspect,according to the statements of the relatives and associates of the deceased.
(k) The mobile phone of the deceased victim recovered from the scene of offence was stated in the statement of his father to be containing record of threats received by the deceased. The inquest panchnama made at 24.00 hours on 21.7.2010 recorded recovery of the mobile phone without mention of any cover, but on 22.7.2010 there is shown recovery of a blackcolour mobile cover having stains of blood, both inside and outside. When the mobile phone was sent to DFS, Gandhinagar on 08.12.2011, after the order of this Court for further investigation, it was stated to be in the transparent plastic box sealed with the marks : "S.P. S.N.R.", rather than the sign of any investigating officer of the Sola Police Station or the Crime Branch of Ahmedabad City. If the mobile phone were deposited in safe custody of the competent Court, alongwith the chargesheet, it could have been obtained for FSL examination only by obtaining requisite permission of the Court. After the mobile phone was sent to DFS, Gandhinagar on 08.12.2011, report dated 03.01.2012 of the FSL, Gandhinagar indicated that memory card of the mobile phone was not found in its slot. Those facts lead to the inference and allegation that the very important piece of evidence was tampered with by not being in a sealed condition from 21.7.2010 to 19.10.2011.
(l) Even as a lame excuse is advanced for the investigating agency to explain the phenomenon of the prime suspect being not immediately arrested or even interrogated, the fact appears to be that the statements of witnesses or accused persons being recorded by the police scrupulously and positively mentioned non involvement of Mr.DB as against the previous statements of all the family members and acquaintances implicating Mr.DB as the prime suspect. In such facts, it was reasonable for the petitioner to raise Page 33 of 118 HC-NIC Page 33 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT the issue as to what the higher officers immediately informed and gathered at the police station were doing for all of 25 days during which a whole new conspiracy to concoct a set of evidence and destroying or removing the original evidence could be hatched and executed. Obviously and in the nature of things, friends and family members of the victim cannot produce any hard evidence or conclusive material as to how, where and when the conspiracy to kill was hatched and in which order the plan to kill was executed. And that is where the importance and utility of an honest and impartial investigation, duly and fully empowered by law to unearth the whole truth, would come into full play. It is trite that an improper investigation would only result into acquittal of the accused persons or conviction of some weakling. A mockery of justice would necessarily shake faith of the people in rule of law, which poses the gravest danger to democracy and enjoyment of fundamental rights by ordinary citizens.
10. All the above circumstances put together indicated that the investigation was controlled from the stage of registering the FIR and only the clues provided by the accused persons themselves were investigated to close the investigation by filing Chargesheet No.158 of 2010 dated 10.11.2010 and further investigation had not served any purpose. Therefore, the investigation with the lapses and lacunae as also the unusual acts of omission and commission did not and could not inspire confidence. It may not be proper and advisable to further critically examine the chargesheet already submitted by the police, as some of the accused persons are already arrested and shown as accused persons and even charge is yet to be framed against them. The facts and averments discussed in paragraphs 6 and 7 hereinabove also amply support the conclusion that the investigation all throughout was far from fair, impartial, independent or prompt."
22 On 24th March 2017, the following order was passed by this Court:
"1. The draft amendment is allowed. The same shall be carried out forthwith. A copy of the amended petition be supplied to all the learned counsel appearing for the respondents.
2. Let notice be issued to the respondents, returnable on 5th April, 2017. Ms. Thakore, the learned APP, waives service of notice for and on behalf of the respondents Nos.2 and 4, Mr. Niral Mehta, the learned counsel, waives service of notice for and on behalf of the respondent No.5, Mr. Yash Nanavati, the learned counsel, waives service of notice for and on behalf of the respondent No.6 and Mr. R.C. Kodekar, the learned counsel, waives service of notice for and on behalf of the respondent No.1CBI.Page 34 of 118
HC-NIC Page 34 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT
3. The Registry is directed to call for the report of the CBI Court conducting the CBI Cases Nos.01 of 2014, 02 of 2014 and 03 of 2014 as regards the subject matter of this writ application. It is expected of the CBI, i.e., the respondent No.1 also to respond and file an appropriate reply.
4. Till the next returnable date, the proceedings of the CBI Cases Nos.01 of 2014, 02 of 2014 and 03 of 2014 shall remain stayed.
Direct service is permitted qua the respondent No.3."
23 Pursuant to the order passed by this Court referred to above, the Presiding Officer of the C.B.I. Court forwarded his report dated 4th April 2017 stating as under:
"Subject: Submitting the status report in Special CBI Sessions Case No.2 of 2014 with Special CBI Sessions Case No.1 of 214 and 3 of 2014.
Ref.: Special Criminal Application (Direction) No.2135 of 2017 wherein the Hon'ble High Court has passed the order for compliance dated 24/03/2017 (next date of hearing have been fixed on 05/04/2017).
Respected Sir, With reference to the above referred order which was received by this Court on 04/04/2017 at about 17:25 hours, I am respectfully submitting the Status Report in Special CBI Sessions Case No.2 of 2014 with Special CBI Sessions Case No.1 of 2014 and 3 of 2014 as per following:
(1) The Hon'ble Supreme Court of India has passed the order in CRLMP -
14006/2015 in Criminal Appeal No.(s).4921/2014 dated 11/05/2016 and ordered that the trial of the above mentioned cases be tried on day to day basis.
(2) Thereafter, on 18/05/2016, this Court framed the charges against all accused and the trial of the case was started.
(3) This Court has passed one order to the CBI Director, New Delhi on 29/07/2016 that the trial has been at the crucial stage and for that the I.O. Mukesh Sharma be remained present before this CBI Court during the time of trial on day to day basis.
(4) This Court has also passed one another order dated 09/12/2016 to the Ahmedabad Police Commissioner that the investigation officer, P.I. Mr. Page 35 of 118 HC-NIC Page 35 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT S.M. Chaudhary, (I.O. who have chargesheeted by Ahmedabad Crime Branch Police) be remained present during the time of trial before this CBHI Court on each and every date of trial without fail to help the CBI.
As such the CBI I.O. Mukesh Sharma (Dy.S.P.) and I.O. of Crime Branch, Ahmedabad Mr. S.M. Chaudhary (P.I.) regularly remained present before this Court during the time of trial on each and every day of trial and date.
(5) In the above mentioned matters, during the time of trial, the Court has issued summons to be witnesses, wherein in major witnesses, there were also mobile number of Special P.P. Mr. L.D. Tiwari and Special P.P. Mr. Gaurang A. Vyas have been mentioned in all the summons, so that the witnesses were able to directly come into the contact of the Special P.P. And if any difficulty faced by the witnesses during the time of trial then the said witnesses are able to contact Special P.P. Mr. L.D. Tiwari and Special P.P. Mr. Gaurang A. Vyas.
(6) The above mentioned matter was lastly posted on 24/03/2017 wherein the matter was argued out by Special Prosecutor of CBI on 18/03/2017, 20/03/2017 and 21/03/2017 by constant full day and thereafter, the defence side have argued out the said matter constantly on 22/03/2017, 23/03/2017 and 24/03/2017. Now, the matter is pending for judgment on 11/04/2017.
(7) The prosecution has examined total 195 witnessed and on the defence side, there were 02 witnesses have been examined.
(8) The prosecution has also produced approximately about 325 Nos. of documentary evidence in support to prove their case and most of the documents are in more than one pages in a single document and as such, bunch of documents have been produced.
(9) All the witnesses have deposed before this Court freely and without any fear and the Court have also taken sufficient care that all the evidence should be recording to the provisions of the Indian Evidence Act.
This compliance report is hereby submitted to the Hon'ble Gujarat High Court as per the order passed by the Hon'ble Gujarat High Court in the above mentioned petition and order dated 24/03/2017 and the next date have been fixed on 05/04/2017.
We are also hereby requesting your honour that this writ petition order have received by this Court on 04/04/2017 at 17:25 hours and immediately we are submitting our report to your hounour for your kind consideration."
Page 36 of 118 HC-NIC Page 36 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT ● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANT: 24 Mr. B.B. Naik, the learned senior counsel appearing for the writ
applicant vehemently submitted that the accused persons more particularly, the main accused namely, Dinu Bogha Solanki, by his sheer power and position, has reduced the trial to a mere farce. According to Mr. Naik, the proceedings conducted by the Court concerned could be termed as a mock trial. The accused persons are guilty of tampering with the prosecution witnesses. Mr. Naik submitted that the complaints lodged by the witnesses by itself make out more than a prima facie case of the accused persons directly interfering with the administration of justice. According to Mr. Naik, the Presiding Officer of the CBI Court miserably failed to discharge his legal obligations as a Judge. The Presiding Officer remained a mute spectator to the entire drama. It was expected of the Presiding Officer to take appropriate steps at an appropriate stage, but for some reason or the other, the Presiding Officer failed to do so. Mr. Naik submits that the Presiding Officer did not even bother to call for the report from the State police authorities as regards the inquiry conducted in connection with the complaints filed by the witnesses for administration of threats and inducements.
25 Mr. Naik submitted that the State has a definite role to play in protecting the witnesses, more particularly, in sensitive cases, like the one on hand involving those in power, who have political patronage, and could wield muscle and money power, to avert the trial getting tainted, derailed and truth becoming a casualty.
26 According to Mr. Naik, the case on hand is one in which this Court should exercise its extraordinary powers of writ jurisdiction under Article 226 of the Constitution of India and order a retrial. According to Page 37 of 118 HC-NIC Page 37 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT Mr. Naik, the remedy under Section 311 of the Cr.P.C. would also not be effective. The case on hand is one of miscarriage of justice or failure of justice. Mr. Naik submitted that if witnesses, in such a sensitive matter, become hostile to subvert the judicial system, the Court should not stand as a mute spectator and every effort should be made to bring home the truth. The criminal judicial system cannot be overturned by those gullible witnesses, who act under pressure, inducement or intimidation. It is not a case that the accused alone is entitled to a fair trial. The victim is equally entitled to a fair trial.
27 Mr. Naik pointed out that out of 105 witnesses declared hostile, eight of those are the eyewitnesses to the actual incident of shooting. All the eyewitnesses, who identified the assailants in the identification parade, turned hostile. It is only the police officers and other government servants examined as witnesses supported the case of the prosecution. According to Mr. Naik, the power invested with the High Court under Article 226 of the Constitution are plenary in nature and even wider than the powers under Article 32 of the Constitution of India. Mr. Naik submitted that in case of failure of justice or miscarriage of justice, this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India can direct a de novo trial in the interest of justice. Mr. Naik submitted that the trial would come to an end only after the judgment is pronounced. Merely because the recording of the evidence is closed, and the trial is now posted for pronouncement of the judgment, it cannot be said that the trial has concluded.
28 Mr. Naik, in support of his submissions, has placed reliance on the following decisions:
(1) Gopi Chand vs. Delhi Administration [AIR 1959 SC 609] Page 38 of 118 HC-NIC Page 38 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT (2) Dwarka Nath vs. Income Tax Officer, Special Circle, DWard, Kanpur and another [AIR 1966 SC 81] (3) Nilabati Behera alias Lalita Behera vs. State of Orissa and others [(1993) 2 SCC 746] (4) Santosh De and another vs. Archna Guha and others [(1994) 9 SCC 377] (5) Air India Statutory Corporation and others vs. United Labour Union and others [(1997) 9 SCC 377] (6) S.M.D. Kiran Pasha vs. Government of Andhra Pradesh and others [(1990) 1 SCC 328] (7) K. Venkatachalam vs. A. Swamickan and another [(1999) 4 SCC 526] (8) State of M.P. vs. Bhooraji and others [(2001) 7 SCC 679] (9) Shakila Abdul Gafar Khan vs. Vasant Raghunath Dhoble and another [(2003) 7 SCC 749] (10) Court on its motion vs. State of Punjab and others [CWP 17611 of 2007 [Punjab & Haryana High Court] (11) Bhimana vs. State of Karnataka [(2012) 9 SCC 650] (12) Gurnaib Singh vs. State of Punjab [(2013) 7 SCC 108] Page 39 of 118 HC-NIC Page 39 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT (13) Asha Ranjan vs. State of Bihar [(2017) SCC online SC 140]
29 In such circumstances referred to above, Mr. Naik prays that there being merit in this application, the same be allowed and the reliefs prayed for be granted.
● SUBMISSIONS ON BEHALF OF THE ACCUSED PERSONS:
30 On the other hand, this writ application has been vehemently
opposed by the accused persons. Mr. N.D. Nanavaty, the learned senior counsel appearing for one of the accused persons (Respondent No.6) submitted that the writ application itself is not maintainable in law. According to Mr. Nanavaty, this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India or its supervisory jurisdiction under Article 227 of the Constitution of India, cannot order a retrial before the judgment is pronounced by the Trial Court. If, ultimately, the accused persons are acquitted of the charge, then it is always open for the writ applicant being the father of the deceased to file an appeal before the Appellate Court and pray for a retrial. Mr. Nanavaty would submit that in the same manner, the C.B.I. also can file an acquittal appeal before the Appellate Court and seek a retrial. Mr. Nanavaty submitted that under Section 386 of the Cr.P.C., the Appeal Court has the power to order retrial. However, at this stage, there is no question of ordering retrial on the ground that all the witnesses have turned hostile.
31 Mr. Nanavaty submitted that the allegations levelled by the writ applicant of tampering with the prosecution witnesses cannot be looked into in a writ application, because such allegations would fall within the Page 40 of 118 HC-NIC Page 40 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT realm of disputed questions of fact. Once the allegations are disputed, then, in such circumstances, this Court cannot go into the other issues. It is submitted that all those witnesses, who had lodged complaints against Dinu Bogha Solanki of administration of threats and inducements, did support the case of the prosecution, except one. The Trial Court has yet to appreciate the evidence of the hostile witnesses and just because the witnesses turned hostile, is no ground or reason to discard their entire evidence. Mr. Nanavaty laid much stress in the course of his submission to the fact that none of the witnesses drew the attention of the Court that they were being threatened by the accused. According to Mr. Nanavaty, there is an alternative remedy of appeal, if ultimately the accused are acquitted. According to Mr. Nanavaty, the C.B.I. being the prosecuting agency could have filed an application under Section 311 of the Cr.P.C. for recalling of the witnesses. However, the C.B.I. did not deem fit to file any writ application. Mr. Nanavaty lastly submitted that his clients have already disclosed their defence and having done so, there cannot be an order of retrial, as that would cause severe prejudice.
32 In such circumstances referred to above, Mr. Nanavaty prays that there being no merit in this application, the same be rejected.
33 Mr. S.V. Raju, the learned senior counsel appearing for the main accused namely, Dinu Bogha Solanki vehemently submitted that this writ application is politically motivated. According to Mr. Raju, his client is very much active in politics and public life. This writ application has been filed only with an ulterior motive i.e. to get the bail cancelled before the Supreme Court. According to Mr. Raju, no case worth the name could be said to have been made out for a retrial. According to Mr. Raju, merely because the witnesses turned hostile, is no ground to order a retrial. It is the quality of the evidence which is important and not the Page 41 of 118 HC-NIC Page 41 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT quantity of the evidence. The witnesses in the course of the trial do turn hostile for various reasons. Mr. Raju submitted that the evidence of the hostile witnesses is not before the Court, and therefore, it is premature for this Court to reach to the conclusion that the trial has been reduced to a mere farce. It is for the Trial Court to appreciate the evidence and reach to the conclusion that the accused are guilty of the offence or innocent. According to Mr. Raju, if retrial is ordered at this stage, it will take a considerable long time before the trial is concluded. He submitted that none of the witnesses declared hostile have preferred any application before the Trial Court or even before the C.B.I. stating that they are ready and willing to depose in accordance with their police statements to bring the truth on record. It is submitted that merely because few complaints came to be lodged in writing of the administration of threats and tampering with the witnesses, is no ground to presume that the accused persons are guilty of interfering with the administration of justice. The writ application cannot be decided merely on the basis of presumption and assumption. There is gross delay in preferring the present writ application. According to Mr. Raju, the writ applicant could have prayed before the Supreme Court for a retrial. The writ applicant should have requested the Honourable Supreme Court to modify its order dated 10th May 2010. Mr. Raju submitted that there has been no lapse of any nature on the part of the Trial Court. The Presiding Officer conducted the trial absolutely in accordance with law. Even at the time of pronouncement of the judgment, the Trial Court can take recourse of Sections 195 and 340 of the Cr.P.C. Mr. Raju submitted that reliance placed on the decision of the Supreme Court in the case of Zahira Shaikh (supra) is thoroughly misplaced.
34 In such circumstances referred to above, Mr. Raju prays that there being no merit in this writ application, the same be rejected.
Page 42 of 118HC-NIC Page 42 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 35 Mr. R.S. Sanjanwala, the learned senior counsel appearing for one of the accused persons adopted the submissions of Mr. N.D. Nanavaty and Mr. S.V. Raju, and submitted that the writ application deserves to be rejected.
36 Mr. R.J. Goswamy, the learned counsel appearing for the respective respondents also adopted the submissions canvassed by Mr. N.D. Nanavaty and Mr. S.V. Raju, and submitted that the writ application deserves to be rejected.
37 Mr. Kodekar, the learned standing counsel appearing for the C.B.I. has filed submissions in writing. The same are as under:
"That in this case, CBI i.e. Respondent No.1, has filed the reply dated 07.04.2017 in response to the petition of Bhikalal Kalyanji Jethwa and has also filed the relevant documents from pages 01 to
131. In support of the oral arguments on behalf of Respondent No. 1, the present written submission in the gist form is hereby submitted in compliance of the Hon'ble Court's orders, which are as under:
1.That Case No. RC.11(S)/2012/CBI/SCU.V/$C.II/New Delhi U/s 120 B r/w 302 IPC and Section 25 (1) (a) (b) of Arms Act was registered in CBI, SC.II, New Delhi on 06.10.2012 in pursuance to the order dated 25.09.2012 of the Hon'ble High Court of Gujarat at Ahmedabad.
2. That the CBI had filed Charge Sheet in the Court of Addl. Chief Judicial Magistrate, CBI Cases, Mirzapur, Ahmedabad on 21.12.2013.
3. That on 25.2.2014, accused Dinubhai Boghabhai Solanki was enlarged on bail by the Hon'ble Supreme Court of India.
4. That while the investigation was in progress,, the witnesses namely Sh. Rambhai Hazabhai and Manubhai Jasinbhai Dodia; both residents of Taluka Kodinar, Distt. Junagadh filed their Page 43 of 118 HC-NIC Page 43 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT Complaints to Director, CBI and the same were received by CBI on 19.9.2013, alleging therein that they and their families were receiving threats from Sh. Dinubhai Bhogabhai Solanki. Accordingly, on 09.10.2013 Joint Director, CBI wrote a letter to Director General of Police, Police Bhavan, Gandghinagar, Gujarat to provide adequate security to the above mentioned persons as they were very important witnesses in the present case.
5. That again on 7.12.2013, 9.12.2013 and 1312.2013; three witnesses namely Rambhai Hazabhai Solanki, Dhirsinh Karsanbhai Barad and Manubhai Jasinbhai Dodia, all residents of Taluka Kodinar, Distt. Junagadh filed their Complaints with Director, CBI alleging therein that they and their families were receiving threats from Sh. Dinubhai Bhogabhai Solanki.
6. That on 5.3.2014 Director, CBI also wrote a letter to Director General of Police, Police Bhavan, Gandghinagar, Gujarat with reference to the earlier letter written by Joint Director, CBI. No action was taken on the previous letter. It was further requested to take necessary steps and measures immediately as deemed fit so that safety and security of the crucial witnesses can be ensured.
7. That in the month of September, 2015; CBI filed an affidavit before the Hon'ble Supreme Court of India in support of the bail cancellation petition filed by the father of the deceased. CBI further prayed in the affidavit to cancel the bail of accused Sh. Dinubhai Boghabhai Solanki and to direct the local police of Gujarat to provide appropriate protection to the witnesses named in the Charge Sheet.
8. That on 30.9.2015; SP, CBI, New Delhi also wrote a letter to the Supdt. of Police Gir, Somnath, Gujarat and requested him to provide adequate security to Rambhai Hajabhai Solanki.
9. That on 18.5.2016, charges were framed against the accused persons by Spl. Judge, CBI Cases, Court No. 4, Mirzapur, Ahmedabad in Session Cases No.02/2014, 03/2014 and 01/2014.
10.That on 08.06.2016, trial of the case started in the Court of Special Judge, CBI Cases, Court No.4, Ahmedabad.
11 .That as per procedure, the conducting PP of the case has to submit the day to day court proceedings (court diary) of case to the Supervisory Officer for their perusal.Page 44 of 118
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12.That on 15.10.2016 PW No. 50 Kanak Sinh Parmar submitted application to the trial court alleging that he and his family members were being pressurized by accused persons to turn hostile in the case. He also apprehended that the accused persons may cause loss to his family and property.
13.That accordingly, on 15.10.2016 the Ld. Trial court passed an order directing the Director General of Police, Gujarat to verify the substance and to take a decision.
14.That in the month of December, 2016; CBI filed counter affidavit on the additional affidavit filed by the accused Dinubhai Boghabhai Solanki in the Hon'ble Supreme Court of India and further apprised the Hon'ble Supreme Court that 40 witnesses have turned hostile out of 89 witnesses examined till 24.11.2016 and have also apprised the Hon'ble court about the violation of the bail conditions imposed by the Hon'ble Court.
15.That on 16.01.2017, the Summon of PW No. 184 Manendra Singh, an eye witness in this case was issued by the Ld. Trial court. While service of the Summon was effected on 20.1.2016, he informed the CBI official that he was getting life threats from accused persons and he further requested for police protection to travel from his native place i.e. Kanpur,(UP) to Ahmedabad and back.
16.That on the report of CBI, the Ld. Trial court on 31!01.2017 passed order directing CBI, New Delhi to provide sufficient protection to the witness for attending the court.
17. That Summon to the PW No. 184 Manendra Singh was again issued on 04.02.2017 to attend the Court on 10.2.2017. CBI officials went to serve the Summon at Kanpur along with Police protection for the safety of the witness. However, the witness refused to take the Police protection and also refused to accompany the CBI team. He requested to attend the Court only after March, 2017.
18.That on 10.2.2017 PW Manender Singh, himself appeared before the trial Court and he was examined on 14.2.2017. He resiled from his statement recorded u/s 161 Cr.P.C during the course of investigation and was declared hostile witness.Page 45 of 118
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19.That during the hearing in the Hon'ble Supreme Court on the bail cancellation of accused Dinubhai Boghabhai Solanki, CBI had apprised the Hon'ble Court about the hostile witnesses of the case on all the dates of hearing in the Hon'ble Supreme Court i.e. 1.8.2016, 3.10.2016, 22.11.2016, 6.12.2016, 9.1.2017,13.2.2017 23.2.17, 3.3.17, 27.3.2017, 6.4.2017 and 24.4.2017.
20. That from investigation to conclusion of the trial, total five witnesses have filed complaints to CBI regarding threat to their lives and their family members. Out of these 05 witnesses, 04 witnesses have supported the prosecution case and one witness has resiled from his statement recorded u/s 161. Cr.P.C.
21.That during the trial, 195 witnesses have been examined by the prosecution and out of them 106 witnesses turned hostile.
22. That among the witnesses who have turned hostile, 08 are eye witnesses, 45 are panch witnesses and 53 are others.
23.That during the trial before declaring the witnesses hostile, they were referred to their statements recorded u/s 161 Cr.P.C. by the conducting Public Prosecutors of the CBI as per section 159 of Indian Evidence Act, 1872.
24. That the written submission may be taken on record and this Hon'ble Court may kindly be pleased to pass appropriate order as deemed fit and proper in view of the facts and circumstances of the case, in the interest of justice."
38 On behalf of the State of Gujarat, written submissions have been filed stating as under:
Sr. Date Particulars of Event.
No.
1 05.03.2014 Letter dated 05.03.2014 addressed by CBI to DGP:
2. 05.03.2014 In response to the letter dated 05.03.2014, the DGP office addressed letter to Additional Director General of Police, Intelligence and Superintendent of Police, GirSomnath to inquired into the allegations of threat and Page 46 of 118 HC-NIC Page 46 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT give opinion about police Protection.
3. 13.03.2014 Order dated 13.03.2014 passed by the Deputy Inspector General of Police ( law& order) to immediately provide Police Protection to three witnesses.
4. 14.03.2014 Superintendent of Police, Gir Somnath informed by Fax message dt. 14.03.2014 confirming about allotment of one armed Police guard to each three applicants.
5. 11/03/14 Written complaint dt. 11.03.2014 given by witness Rambhai Solanki regarding providing Police protection on two festive days viz. 16.03.2014 and 17.03.2014.
6. 18.03.2014 Superintendent of Police, Gir Somnath informed vide communication dated 18.03.2014 that two witnesses have refused to have police protection and respective statements of three; witnesses were recorded.
7. 19.03.2014 Communication dt. 19.03.2014 by Assistant Commissioner (VIP Security), Intelligence Gujarat State also inquired from Superintendent of Police, Gir Somnath .
8. 19.03.2014 Communication dt. 19.03.2014, the Assistant Commissioner (VIP security), Intelligence also inquired from local IB office at Junagadh.
9. 17.07.2014 DIG ( law and Order), vide communication dt. 17.07.2014, inquired from DGP office regarding Deputy Director of Ministry of home affairs, New Delhi.
10. 16.07.2014 Letter dt. 16.07.2014 addressed by Police Inspector (VIP), IB to Superintendent of Police, Gir Somnath also forwarded to local IB.
11. 25.07.2014 Communication dt. 25.07.2014 by Superintendent of Police, Gir Somnath to DGP office informing about police protection to witness Rambhai Hajabhai on occasion of marriage.
12. 27.08.2014 Communication dt. 27.08.2014 whereby IB inputs indicate negative opinion as regard allegation of incident in application dt.
02.06.2014.
13. 23.11.2015 Fax letter dt. 23.11.2015 addressed by State Counsel of Supreme Court in reference to application of cancellation of bail.
14. 03.12.2015 Communication dt. 03.12.2015 by Page 47 of 118 HC-NIC Page 47 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT Superintendent of Police, Gir Somnath to DGP office in response to letter of CBI dt. 30.09.2015.
refers to statement of Rambhai Hajabhai dt.
1.12.2015, 25.11.2015 and 14.10.2015.
15. 14.12.2015 Fax message dt. 14.12.2015 addressed by Deputy Police Superintendent, State Control on behalf of DGP ( law and Order) to Superintendent of Police, Gir Somnath .
16. 15.12.2015 Communication/ office order dt. 15.12.2015 by Superintendent of Police, Gir Somnath forwarded to all concerned offices confirming allotment of one officer for protection to Rambhai Hajabhai. :
17. 04.01.2016 Fax message dt. 04.01.2016 by Superintendent of Police, Gir Somnath to DGP office, pointing lout regarding request of Rambhai Hajabhai for allotment of SRP officer.
18. 28.01.2016 Order dt. 28.01.2016 passed by the DGP office of allotment of SRP Jawan to witness Rambhai Hajabhai.
19. 29.01.2016 Communication /order dt. 29.01.2016 addressed by Add. DGP, Arms unit to Senapati, State Reserve police force, Group 8, Gondal of allotting one armed Constable SRP.
20. 30.01.2016 Communication dt. 30.01.2016 by Incharge Senapati, SRPF, Group8, Gondal to DGP office and others regarding allotment of SRP Officer.
21. 09.01.2017 Application dt. 09.01.2017 by witness Rambhai Hajabhai requesting DGP office to provide SRP officer named Rameshbhai Karshanbhai Bamaniya of SRP Group16, Bhachau Kutch as protection officer.
22. 28.03.2017 Communication of Deputy Inspector General, Armed unit seeking permission to allot officer as per requirement of the witness.
23. 15.03.2017 Application dt. 15.03.2017 made by the witness Rambhai Hajabhai once again requesting allotment of Rameshbhai Bamaniya as protection officer.
24. 11.04.2017 Fax message dt. 11.04.2017 communicating order of DGP ( Law and order) regarding Page 48 of 118 HC-NIC Page 48 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT allotment of SRP officer other than karadia community having training of PSO/commado course.
25. 19.04.2017 Order dt. 19.04.2017 of Senapati, SRPF, 43 Group8, Gondal regarding allotment of officer named Vijaykumar Chauhan.
In light of the afore said factual details, the main allegation so made against the respondent no.2 herein as regard inaction of not providing security to the concerned witnesses is concerned, it is important to note that:
1. Initially the investigation was done by the State through it's local Police station, however, subsequently the investigation was transferred to the CBI vide Oral Order dt. 25.09.2012 passed by this Hon'ble High Court in special Criminal application no. 1925 of 2010 and therefore upon filing of the supplementary charge sheet by the CBI, the same was registered as CBI sessions case no. 01 of 2014, CBI Sessions case no. 2 of 2014 and CBI sessions case no. 03 of 2014 before the Learned Special Judge, CBI cases, Court no.4, At Mirzapur, Ahmedabad. Thus CBI is the prosecuting agency and State authorities are not party to the said criminal cases.
2. Charge was framed by the Learned Special Judge, CBI Court no.4 on 18.05.2016. Total 195 witnesses have been named in the charge sheets. Out of these 195 witnesses, except for 5 witnesses, the State has not received any complaints from other witnesses, making any allegations about threat, undue pressure by the accused namely Dinu Bogha Solanki, and his nephew Shiva Solanki or any other co accused.
3. So far as 5 witnesses are concerned, 3 witnesses out of these 5 witnesses namely Ramabhai Hazabhai Solanki, Dhirsinh Barad and Manabhai Dodia seems to have moved application in writing to the CBI office on 07.12.2013, 09.12.2013 and 13.12.2013 respectively. These applications are produced at page no. 103, 107 and 109 respectively. It may kindly be noted that in each application the prayer is made to provide police protection. None of these applications have ever been directly given to DGP office seeking police protections. Their deposition was recorded before the CBI court on 28.08.2016, 23.08.2016 and 29.07.2016 respectively.
Now on comparing the afore said list of events with the date of application and the date of deposition; the fact remains that the DGP office was first put to notice about order of CBI court on 05.03.2014 which was received on 11.03.3014 and thereafter immediately within 2 days ie. On 13.03.2014 order of Page 49 of 118 HC-NIC Page 49 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT providing police protection was passed and in fact the officer were send to provide police protection. It is only in case of two witnesses, since the witnesses refused to continue with police protection, the police protection was withdrawn and thereafter, they have never approached again seeking police protection or making complaint about any threat. So far as Ramabhai Hazabhai is concerned, the police protection has been provide since March, 2013 till date, in fact the list of events indicate that as per his request the officer from State Reserve Force has been provided to him and that to at State expense.
4. So far as witness namely Manendrasinh is concerned, he seems to have given application to the Superintendent of Police, CBI office, New Delhi on 31.01.2017 which is produced at page no. 118 and also has submitted application to CBI court on 20.01.2017 which is produced at Page no. 119. That the CBI court was pleased to pass an order dt. 31.01.2017 below EXH. 723 thereby directing CBI, New Delhi to provide sufficient protection to the witness at the time of attending court. That order dt. 31.01.2017 is produced at page
120. It appears that said witness is from Uttar Pradesh and considering the nature of allegation the same was brought to the notice of CBI office, New Delhi to provide security. So far DGP office, State of Gujarat is concerned, no such application or order has been brought to the notice of State by the CBI and therefore in absence of any such information the DGP has not taken any action in his case. He was cross examined on 14.02.2017 and he has turned hostile .
5. So far as fifth witness who has made complaint about being administered threat is Kanaksinh Parmar who seems to have given application 15.10.2016 which is produced at page no. 114and page no. 115116. That the said applications has been addressed to CBI office, New Delhi and upon application being submitted before the CBI court, the Hon'ble CBI court was pleased to pass an order dt. 15.10.2016 below EXH. 364 wherein the Learned Special Judge has directed the Director General of Police , State of Gujarat to verify the substance and to take a decision. That order has been placed on record on page no. 117. That the instructions from the DGP office indicates that the said order has been first time disclosed to the DGP office only when the CBI has place with affidavit on record of this Hon'ble Court in the afore said proceedings. That no such order has been received by the DGP office from the CBI office so far as Kanaksinh Parmar is concerned. However, the fact remains that he has supported the case of the prosecution. I say that this witness will be given police protection and as directed by the CBI court, the DGP office shall look into his allegations and appropriate action shall be taken against the offender.
Page 50 of 118HC-NIC Page 50 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT In light of the aforesaid facts, so far as main allegations by the petitioner against the DGP office, State of Gujarat is concerned, the principal grievance is inaction for not providing police protection which is partially not correct as in case of three witnesses the DGP office has acted promptly so far as witness named Kanaksinh Parmar, in absence of receipt of any application or copy of the order dt. 15.10.2016 passed by the CBI court, the DGP office has not looked into the same however, that was never intentional. So far as veracity of the allegations are concerned,] while considering the application of police protection, the DGP office had asked it's IB office of Gandhinagar to inquired into same and there upon secret investigation , the allegations are not found correct and in fact IB has reported negative opinion though considering the seriousness of allegations, the DGP office has asked Superintendent of Police, Gir Somnath to provide immediate Police protection. It may kindly be noted that no untoward incident to such witnesses has ever been reported to DGP office or Superintendent of Police , Gir Somnath since Year 2014 except for one which was a clash between two political rival group when Dinu Bogha Solanki was order to be released on bail by the Hon'ble Supreme Court where complaint was made by witness Ramabhai Hazabhai against accused persons and the same was registered as FIR I Cr no. 23/2014 dt.26.02.2014 with the Kodinar Town Police station (six persons were named as accused wherein Dinu Bogha Solanki has not been named) and other side had also lodged cross FIR bearing registration no. 24/2014, dt. 26.02.2014. It is learnt that in the said FIR few of the accused persons are arrested and charge sheet has been filed against those who are arrested. The instances which the petitioner proposed to rely upon are in no manner connected with the CBI case in as much as record indicates that these persons are not witnesses in the CBI case. However, as a State agency it is assured on .behalf of Director General of Police office that if apart from these witnesses if any other witness related to case come forward seeking police protection or any complaint about being threaten or pressurize, the DGP office assure prompt action against the offenders in accordance with law.
39 I also take notice of one affidavit filed by Dinu Bogha Solanki stating as under:
"I, Dineshbhai Bhoghabhai Solanki, aged 62 years, occupation Agriculturist, having address as Manghar, Devli Road, Kodinar, Dist. Gir Page 51 of 118 HC-NIC Page 51 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT Somnath, present in Ahmedabad do hereby state and solemn affirm on oath as under :
(1) I am the respondent in the above said matter as such I am well acquainted with all the facts and circumstances of the case and I am fully competent to swear the affidavit.
(2) At the outset I state that the present affidavit is filed for a limited purpose of opposing admission of the petition and or opposing of granting any further interim relief and for the purpose of vacating interim relief already granted.
I further reserve my liberty to file detail affidavit in reply as and when required.
(3) At the outset I deny each and every averment and allegations leveled against me and in the memo of petition and the facts which are not specifically admitted by me hereinafter are to be treated as denied.
(4) I say and submit that no fundament right of the petitioner alleged to have been violated, therefore the present petition under the article 22 6 of the Constitution of India is not maintainable.
5) So far as the allegation as to threatening and influencing witness for turning hostile is concerned, I say and submit that such allegation is not only false but is made at this stage with a malafide intention to stall the proceedings. I categorically deny the allegations of having practiced threats and influence.
6)I say and submit that the allegation as to threatening the witnesses are as vague as it could be and is completely baseless. Under circumstances the present petition deserves to be dismissed.
7) That contents of para 3.12 are hereby denied as the same are not true.
8) That contents of Para 3.13 are hereby denied as the same are not true.
9) That contents of Para 3.14 are hereby denied as the same are not true.
10) That contents of Para 3.15 are hereby denied as the same are not true.
11) That contents of Para 4.3 are hereby denied as the same are not true."
Page 52 of 118 HC-NIC Page 52 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT ● ANALYSIS: 40 Having heard the learned counsel appearing for the parties and
having considered the materials on record, the only question that falls for my consideration is whether I should order a retrial in exercise of my writ jurisdiction under Article 226 of the Constitution of India.
● CONCEPT OF FAIR TRIAL:
41 In the present day times when the criminals have no value of
human life and murders are committed at the drop of a hat, one should stop shedding any more tears for the criminals and devote some attention to the victims of crime. Could a trial, which concentrates on the welfare of the criminal, and where everybody involved works over time to ensure that he has a fair trial, and is fairly dealt with both before, during and after the trial, be said to be fair to the victim as well? Should not a fair trial be fair to all concerned, including the public cry for protection of life and property from the marauder of law? Is the concept of a fair trial a mere flight of a philosophic mind, a utopia or a reality? Does the concept merely embody an ideal to be attempted even though not necessarily capable of being achieved within our lifetimes? All fair trials are necessarily legally valid, but is the reverse necessarily true? What then is the genesis of the concept of a fair trial? The concept of a fair trial has a very impressive ancestry, is rooted in history, enshrined in the Constitution, sanctified by religious philosophy and juristic doctrines and embodied in the, statute intended to regulate the course of a criminal trial. Its broad features and ingredients have, in course of time, been concretised into well recognised principles, even Page 53 of 118 HC-NIC Page 53 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT though there are grey areas, which call for further legal thought and research.
42 Truth is the cherished principle and is the guiding star of the Indian criminal justice system. For justice to be done truth must prevail. Truth is the soul of justice. The sole idea of criminal justice system is to see that justice is done. Justice will be said to be done when no innocent person is punished and the guilty person is not allowed to go scot free.
43 For the dispensation of criminal justice, India follows the accusatorial or adversarial system of common law. In the accusatorial or adversarial system the accused is presumed to be innocent; prosecution and defence each put their case; judge acts as an impartial umpire and while acting as a neutral umpire sees whether the prosecution has been able to prove its case beyond reasonable doubt or not.
44 In India, the entire burden to prove the accused guilty so that he does not go unpunished is upon the prosecution. While seeing that the rights of the accused are not infringed it is equally essential to see that the victims and the family of the victims of the crime are not ignored as the very purpose behind the concept of duties of the State and its organs are that the law and order is maintained in the state and the grievance of the victims should not go without redress.
45 In this regard, it would be worthwhile to refer to para 13 of the judgment of the Hon'ble Apex Court entitled State of Maharashtra Vs. Dr. Praful B. Desai [(2003) 4 SCC 601] :
Page 54 of 118HC-NIC Page 54 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT "13. One needs to set out the approach which a court must adopt in deciding such questions. It must be remembered that the first duty of the court is to do justice. As has been held by this Court in the case of Nageshwar Shri Krishna Ghobe v. State of Maharashtra courts must endeavour to find the truth. It has been held that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failure to produce available evidence. Of course the rights of the accused have to be kept in mind and safeguarded, but they should not be overemphasized to the extent of forgetting that the victims also have rights."
46 Free and fair trial is sinequanon of Article 21 of the Constitution of India. 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 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.
47 The role of a judge in dispensation of justice after ascertaining the true facts no doubt is 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. No doubt he has 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 Page 55 of 118 HC-NIC Page 55 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT stands feeded 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 of the police, prosecutor or the defence counsel or even the whirlwind publicity of a high profile case which affects the public opinion and motivates media trial but it cannot be expected of them not to deprecate or condemn such misdeeds of those culprits hell bent to pollute the stream of judicial process. A man after becoming a Judge, in any case, does not become a passionless thinking machine not to react to certain situations. The judgment of the Apex Court in Zahira's case (Supra) although was given in its own peculiar facts but is an answer to the submissions raised by the counsel for the accused. It would be worthwhile to reproduce para No.38 of the same as under:
"38. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the majesty of the law. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators."Page 56 of 118
HC-NIC Page 56 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 48 The first and the primary duty of a Judge is to do justice. For a common man truth and justice are synonymous. So when truth fails justice also fails. Criminal Justice System in India accords the highest importance to truth and for this reason, alone our National Emblem, "Ashoka Sthambha" has the inscribed motto, "Satyameva Jayate" (Truth alone succeeds).
49 The Hon'ble Apex Court has condemned the passive role played by the Judges and emphasized the importance and legal duty of a Judge to take an active role in the proceedings in order to find the truth to administer justice and to prevent the truth from becoming a casualty. A Judge is also duty bound to act with impartiality and before he gives an opinion or sits to decide the issues between the parties, he should be sure that there is no bias against or for either of the parties to the lis. For a judge to properly discharge this duty the concept of independence of judiciary is in existence and it includes ability and duty of a Judge to decide each case according to an objective evaluation and application of the law, without the influence of outside factors.
50 If the Courts are to impart justice in a free, fair and effective manner then the presiding judge cannot afford to remain a mute spectator totally oblivious to the various happenings taking place around him, more particularly, concerning a particular case being tried by him. The fair trial is possible only when the court takes active interest and elicit all relevant information and material necessary so as to find out the truth for achieving the ultimate goal of dispensing justice with all fairness and impartiality to both the parties.
Page 57 of 118HC-NIC Page 57 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 51 In the aforesaid context, I may refer to and rely upon the decision of the Supreme Court in the case of Asha Ranjan vs. State of Bihar [2017 SCC Online SC 140]. Honourable Mr. Justice Dipak Mishra, speaking for the Bench, after an exhaustive review of various authorities, has explained very succinctly the concept of fair trial in the constitutional and statutory backdrop. I may quote the observations as under:
"36. In J. Jayalalithaa & Ors. v. State of Karnataka [(2014) 2 SCC 401], the Court held that fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. It has been further observed that any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general and, therefore, in all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the "majesty of the law" and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. The Court further laid down that denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seen to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right, but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. Elevating the right of fair trial, the Court observed: "Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by the rule of law. Denial of fair trial is crucifixion of human rights. [Vide Triveniben v. State of Gujarat Page 58 of 118 HC-NIC Page 58 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT [(AIR 1989 SC 1335)], Abdul Rehman Antulay v. R.S. Nayak [(AIR 1992 SC 1701], Raj Deo Sharma (2) v. State of Bihar [AIR 1999 SC 3524], Dwarka Prasad Agarwal v. B.D. Agarwal [AIR 2003 SC 2686], K. Anbazhagan v. Supt. of Police [AIR 2004 SC 524], Zahira Habibullah Sheikh (5) v. State of Gujarat [AIR 2004 SC 3114], Noor Aga v. State of Punjab [AIR 2009 SC (Supp) 852], Amarinder Singh v. Parkash Singh Badal [AIR 2009 SC (Supp) 2120], Mohd. Hussain vs. State (Govt. NCT of Delhi) [AIR 2012 SC 750], Sudevanand v. State [(2012) 3 SCC 387], Rattiram v. State of M.P. [AIR 2012 SC 1485] and Natasha Singh v. CBI [(2013) 5 SCC 741].]"
37. In this regard, we may sit in the time machine and refer to a three Judge Bench judgment in Maneka Sanjay Gandhi & another v. Rani Jethmalani [AIR 1979 SC 468], wherein it has been observed that assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like minigrievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment is necessitous, if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. The Court observed that accused cannot dictate where the case against him should be tried and, in a case, it the duty of the Court to weigh the circumstances.
38. In Rattiram (supra), speaking on fair trial, the Court opined that: "39. ... Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism."
39. In the said case, it has further been held that: "60. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in Mangal Singh v. Kishan Singh [AIR 2009 SC 1535] wherein it has been observed thus:
'14. ... Any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious effect on the society generally, and particularly on the two sides of the case. But Page 59 of 118 HC-NIC Page 59 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore, no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.'
61. It is worth noting that the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah [AIR 2005 SC 2119] though in a different context, had also observed that delay in the prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost.
x x x x
64. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim's right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice."
40. Be it noted, the Court in the said case had noted that there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute applepie order in carrying out the adjective law, would only be sound and fury signifying nothing."
41. In Manu Sharma v. State (NCT of Delhi) [AIR 2010 SC 2352], the Court, emphasizing on the concept of fair trial, observed thus: "197. In the Indian criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved Page 60 of 118 HC-NIC Page 60 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India."
42. A threeJudge Bench in Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi [AIR 2012 SC 750] approvingly reproduced para 33 of the earlier judgment in Zahira Habibulla H. Sheikh v. State of Gujarat [AIR 2004 SC 3114] (known as "Best Bakery" case) which is to the following effect: "33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation -- peculiar at times and related to the nature of crime, persons involved -- directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system."
43. In Zahira Habibulla H. Sheikh (supra), it has been held: "38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.
39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it Page 61 of 118 HC-NIC Page 61 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT may be vitiated and violated by an overhasty, stagemanaged, tailored and partisan trial.
40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice."
44. In Mohd. Hussain @ Julfikar Ali (supra) the threeJudge Bench has drawn a distinction between the speedy trial and fair trial by opining that there is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed visàvis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end.
45. We have referred to the said authority as the threeJudge Bench has categorically stated that interests of the society at large cannot be disregarded or totally ostracized while applying the test of fair trial.
46. In Bablu Kumar and Ors. v. State of Bihar and Anr. [AIR 2015 SC (Supp) 2195] the Court observed that it is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a mock trial. The Court further ruled that a criminal trial is a serious concern of society and every member of the collective has an inherent interest in such a trial and, therefore, the court is dutybound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under Page 62 of 118 HC-NIC Page 62 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT their control. The said observations were made keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court.
47. Recently, in State of Haryana v. Ram Mehar and Ors. [(2016) 8 SCC 762], after analyzing the earlier judgments, the Court ruled that the concept of the fair trial is neither in the realm of abstraction or a vague idea. It is a concrete phenomenon; it is not rigid and there cannot be any straitjacket formula for applying the same. The Court observed that it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. The Court ruled that neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other, for once absolute predominance is recognised, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. The Court opined that whole thing would be dependent on the fact situation; established norms and recognised principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalisation but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with Cr.PC or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to the winds. In such situation, as has been laid down in many an authority, the courts have significantly an eminent role. A plea of fair trial cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such. The Court further observed that there should not be any inference that the fair trial should not be kept on its own pedestal as it ought to remain but as far as its applicability is concerned, the party invoking it has to establish with the support of established principles. The process of the court cannot be abused in the name of fair trial at the drop of a hat, as that would lead to miscarriage of justice.
48. On a studied analysis of the concept of fair trial as a facet of Article 21, it is noticeable that in its ambit and sweep it covers interest of the accused, prosecution and the victim. The victim, may be a singular person, who has suffered, but the injury suffered by singular is likely to affect the community interest. Therefore, the collective under certain circumstances and in certain cases, assume the position of the victim. They may not be entitled to compensation as conceived under Section 357A of the CrPC but Page 63 of 118 HC-NIC Page 63 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT their anxiety and concern of the crime and desire to prevent such occurrences and that the perpetrator, if guilty, should be punished, is a facet of Rule of Law. And that has to be accepted and ultimately protected.
49. It is settled in law that the right under Article 21 is not absolute. It can be curtailed in accordance with law. The curtailment of the right is permissible by following due procedure which can withstand the test of reasonableness. Submission that if the accused is transferred from jail in Siwan to any other jail outside the State of Bihar, his right to fair trial would be smothered and there will be an inscription of an obituary of fair trial and refutation of the said proponement, that the accused neither has monopoly over the process nor does he has any exclusively absolute right, requires a balanced resolution. The opposite arguments are both predicated on the precept of fair trial and the said scale would decide this controversy. The interest of the victim is relevant and has to be taken into consideration. The contention that if the accused is not shifted out of Siwan Jail, the pending trials would result in complete farce, for no witness would be in a position to depose against him and they, in total haplessness, shall be bound to succumb to the feeling of accentuated fear that is created by his unseen tentacles, is not an artifice and cannot be ignored. In such a situation, this Court should balance the rights between the accused and the victims and thereafter weigh on the scale of fair trial whether shifting is necessary or not. It would be travesty if we ignore the assertion that if the respondent No. 3 is not shifted from Siwan Jail and the trial is held at Siwan, justice, which is necessitous to be done in accordance with law, will suffer an unprecedented set back and the petitioners would remain in a constant state of fear that shall melt their bones. This would imply balancing of rights.
50. Having noted thus, as presently advised, we shall first advert to certain authorities that pertain to balancing of rights. In Sakal Paper (P) Ltd. & Ors v. Union of India & another [AIR 1962 SC 305], the Court in the context of freedom of speech and expression, has held that freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. Analysing further, the Court held: "It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. All the greater reason, therefore for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom."
51. In Subramanian Swamy v. Union of India [AIR 2012 SC 3725] the Page 64 of 118 HC-NIC Page 64 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT Court after referring to the said authority ruled that:
"... the issue herein is sustenance and balancing of the separate rights, one under Article 19(1)(a) and the other, under Article 2. Hence, the concept of equipoise and counterweighing fundamental rights of one with other person. It is not a case of mere better enjoyment of another freedom. In Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat [AIR 1974 SC 2098], it has been observed that a particular fundamental right cannot exist in isolation in a watertight compartment. One fundamental right of a person may have to coexist in harmony with the exercise of another fundamental right by others and also with reasonable and valid exercise of power by the State in the light of the directive principles in the interests of social welfare as a whole. The Court's duty is to strike a balance between competing claims of different interests. In DTC v. Mazdoor Congress [AIR 1991 SC 101] the Court has ruled that articles relating to fundamental rights are all parts of an integrated scheme in the Constitution and their waters must mix to constitute that grand flow of unimpeded and impartial justice; social, economic and political, and of equality of status and opportunity which imply absence of unreasonable or unfair discrimination between individuals or groups or classes."
52 In a very recent pronouncement of the Supreme Court in the case of Ajay Singh and another vs. State of Chhattisgarh [Criminal Appeals Nos.32 - 33 of 2017 decided on 6th January 2017], the Court has explained the concept of fair trial. The relevant observations are as under:
"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 Page 65 of 118 HC-NIC Page 65 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 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 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 creditability in the institution is maintained."
● HOSTILE WITNESSES - A MENACE TO THE CRIMINAL JUSTICE SYSTEM:
53 In the labyrinth of the criminal system, where the burden of proof lies heavily on the prosecution, the entire merit of a case depends on a witness. By its very definition a witness is a person, who is present at some event and able to give information about it. In other words, witness is a person, whose presence is necessary in order to be able to prove an event or incident during a trial. As Bentham puts it, "witnesses are the eyes and ears of justice".
However the word has nowhere been clearly defined under the Code of Criminal Procedure, 1973. Similarly the Indian Evidence Act, nowhere expressly mentions the phrase "hostile witness" and this terminology has been adopted from the common law. In common parlance, a hostile witness is understood as one who is adverse to the position of the party who is questioning the witness, even though the attorney called the witness to testify on behalf of his client. When a witness becomes openly antagonistic and makes inconsistent statements, the attorney can pray before the Court to declare him as hostile and Page 66 of 118 HC-NIC Page 66 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT thereby gets the opportunity to cross examine him.
In India, in most of the cases involving the rich and the influential people or corrupt politicians, the witnesses turn hostile, making the rule of law a mockery. Very often the witnesses become untraceable. Sometimes they are just eliminated. The Criminal Justice system has been faced with this severe problem for a very long period now, without any viable and comprehensive solution forthcoming for the same.
54 As already stated above, a witness is a most important person who comes forward to depose in the societal interest and he deserves all the protection of the State as well as of the Court. A witness is an indispensable aid in the justice dispensation system in any civilized society. A witness happens to be the eyes and ears of the Court. The Hon'ble Supreme Court in Swaransingh vs. State of Punjab [AIR 2000 SC 2017] expressed deep concern about the predicament of a witness in the following words:
"A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required, whether it is direct evidence or circumstantial evidence. Here are the witnesses who are a harassed lot. A witness in a criminal trial may come from a faroff place to find the case adjourned. He has to come to the Court many times and at what cost to his ownself and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a Court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged examination and crossexamination and finds himself in a hapless situation. For all these reasons and others a person abhors Page 67 of 118 HC-NIC Page 67 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all."
55 The witness in our Courts does not receive deserving and desired place and the respect and this is one of the major reasons that many of the witnesses do not come forward to give their statements as they feel threatened first, at the hands of the police and then the humiliating treatment they get in the Courts. Witness are not supposed to stand in the Courts like criminals or to face the punishment of standing in the Courts for hours together or to take round of the Courts on more than one day. The Honourable Supreme Court in the "Best Bakery‟s Case", (Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others (2004) 4 SCC 158) came down heavily on the State administration in general and the investigating agency in particular for rashly and negligently handling their duties and abdicating their responsibilities. The categorical finding is that the whole machinery of a State failed in maintaining the confidence of public in the justice delivery system. While disscussing the reality about the witness hostility, one of the predominant points taken note of by the Hon‟ble Supreme Court is the lack of witness protection and the relating laws in our country. It has been observed that if the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralyzed. Following excerpt from the said decision will be appropriate in this context:
"The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the courts on account of frequent turning of witnesses as hostile, either due to threats, Page 68 of 118 HC-NIC Page 68 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery."
56 In Javed Alam vs. State of Chattisgarh & Anr. in Cri. A. No.1240 of 2006 decided on 8th May 2009, the Honourable Apex Court sounded the alarm on the growing trend of witnesses turning hostile in criminal cases involving the rich and influential, stressing that justice would remain a far cry unless a witness protection mechanism was put in place and observed as under:
"8. It is a classic case of deficiency in the criminal justice system to protect the witnesses from being threatened by accused. As appears from the record, the witnesses are the classmates of the deceased who were there with her. As appeared from the evidence of witnesses they backed out from what was stated during investigation. The statement made before the Police during investigation is no evidence. Unfortunately, in cases involving influential people the common experience is that witnesses do not come forward because of fear and pressure. ..................The plight of the girls who were under pressure depicts the tremendous need for witness protection in our country if criminal justice administration has to be a reality................"
57 It is no time for slumber. It is high time that we wake up and act for the protection of the citizens who appear before the courts to testify so as to render a helping hand in the dispensation of justice. The Best Page 69 of 118 HC-NIC Page 69 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT Bakery Case, Jessica Lal murder case and many other like cases, if repeated, would shatter the strength and credibility of our criminal justice system. Every country is expected to make laws to meet the situations prevalent in that country. However, there is nothing wrong, rather it is wise, in imbibing the spirit shown by other countries in the matter of witness protection. No nation can afford to expose its righteous and morally elated citizens to the peril of being haunted or harassed by anti social elements, for the simple reason that they testified the truth in a court of law. If the State continues to turn a blind eye to the ground realties, the plight of an honest witness will be pathetic and calamitous. Not only the honest witnesses need full protection of the State, but at the same time dishonest witnesses need to be dealt with an iron hand. No leniency and indulgence should be shown to such a witness who with impunity has the audacity to utter falsehood after taking oath. Such a witness derails the trial which can result in miscarriage of justice and consequently bring miseries to victim of crime. Present is not the only case where witness has adduced false evidence in misleading the Court and thus causing interference in the due discharge of justice. This evil of perjury has assumed alarming proportions in cases depending on the oral evidence and in order to deal with this menace in a given case the Courts take recourse to Section 340 Cr.P.C. (summary procedure for trial for giving false evidence) which has hardly any effect. Therefore, the State must give serious thought to protect the interest of witnesses and to introduce suitable legislation in this regard at the earliest so that the witnesses are not discouraged to come forward to give evidence for fear of harassment, humiliation and danger to their lives.
58 The facts narrated above are glaring and shocking. Right from the Page 70 of 118 HC-NIC Page 70 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 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 invaluable right to life which leave all sensible and right minded persons of the society shellshocked and traumatized in body and soul. One fails to understand that how could 105 witnesses turn hostile. The C.B.I. was bold and honest enough to inform the Supreme Court by filing two affidavits in details that the witnesses were being threatened and on account of which, not a single witness was ready and willing to depose, but at the same time, failed to act promptly and take appropriate steps in that direction. The C.B.I. being the prosecuting agency, just remained a mute spectator, except informing the Honourable Supreme Court that the trial was being reduced to a mere farce. It failed to take the steps in the direction which were necessary in the interest of justice. The writ applicant and the C.B.I. could have requested the Honourable Supreme Court to take up the matter for hearing on urgent basis as the situation demanded. If at an appropriate time, an appropriate order or directions would have been passed in the application seeking cancellation of bail, then probably, this day could have been averted. The very same thing, I can say for the Presiding Officer. I am very sorry to say that the Presiding Officer also failed in his solemn duty to reach to the truth. The Presiding Officer also remained a mute spectator for one reason or the other and continued to witness the drama of mockery of justice. The report forwarded by the Page 71 of 118 HC-NIC Page 71 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT Presiding Officer to this Court itself speaks a lot about the sense of responsibility and duty on the part of the Presiding Officer. The manner in which the report was prepared and forwarded to this Court, goes to indicate that the Presiding Officer is absolutely unperturbed by the manner in which the trial has proceeded. In his report, the Presiding Officer has observed that the witnesses deposed freely and without any fear. I fail to understand what is sought to be conveyed by the Presiding Officer in his report. If the cause of complete justice and protection of human rights are the situational demands in such contingencies, I am of the view that a retrial should be ordered in the every falling cause of justice. As observed by the Supreme Court, a Court of law to reiterate has to be an involved participant in the quest for truth and justice and is not expected only to officiate a formal ritual in a proceeding farseeing and inevitable end signalling travesty of justice. The mission justice so expectantly and reverently entrusted to the judiciary would then be reduced to a teasing illusion and the High Court would be rendered a suspect for its existence in public estimation. Considering the live purpose for which the judiciary exists, it would indeed be a price which cannot afford to bear under any circumstance. [See: Pooja Pal vs. Union of India (2016) 3 SCC 135].
59 That the victim cannot be afforded to be treated as an alien or total stranger in a criminal trial was reiterated by the Supreme Court in the case of Rattiram Ram vs. State of Madhya Pradesh [(2012) 4 SCC 516]. It was postulated that the criminal jurisprudence with the passage of time has laid emphasis on victimology, which fundamentally is the perception of a trial from the view point of criminal as well as the victim when judged in the social context. It would be appropriate at this stage to quote the observations of the Supreme Court as contained in paras 92, 93 and 94 in the case of Pooja Pal (supra):
Page 72 of 118HC-NIC Page 72 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT "92. That the preeminence of truth is the guiding star in a judicial process forming the foundation of justice had been aptly propounded by this Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira (dead) through L.Rs (2012)5SCC 370. It was ruled that the entire judicial system had been created only to discern and find out the real truth and that the Judges at all levels have to seriously engage themselves in the journey of discovering the same. Emphasizing that the quest for truth is the mandate of law and indeed the bounden duty of the courts, it was observed that the justice system will acquire credibility only when the people will be convinced that justice is based on the foundation of the truth. While referring with approval, the revealing observation made in Ritesh Tewari and another vs. State of U.P. and others (2010)10SCC 677 that every trial is voyage of discovery in which truth is the quest, the following passage of Lord Denning scripted in Jones vs. National Coal Board (1957) 2 All ER 155(CA) was extracted in affirmation:
"...It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth."
93. A strain of piognance and disquiet over the insensitive approach of the court concerned in the textual facts in the context of fair trial in the following observations of this Court in Vinod Kumar vs. State of Punjab (2015)3 SCC 220 sounds an awakening caveat:
"The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question: Is it justified for any conscientious trial Judge to ignore the statutory command, not recognize "the felt necessities of time" and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracizing the concept that a civilized and orderly society thrives on the rule of law which includes "fair trial" for the accused as well as the prosecution."
94. The observations though made in the backdrop of repeated adjournments granted by the trial court, chiefly for crossexamination of a witness resulting in the delay of the proceedings, the concern expressed is of overarching relevance demanding sentient attention and remedial response. The poser indeed stems from the indispensable interface of the orderly existence of the society founded on the rule of law and "fair trial"
for the accused as well as the prosecution. That the duty of the Court while conducting a trial is to be guarded by the mandate of law, conceptual fairness and above all its sacrosanct role to arrive at the truth on the basis Page 73 of 118 HC-NIC Page 73 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT of material brought on record, was reiterated.
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 freely and without any fear in their mind.
61 The entire criminal justice system has been maligned by the menace and problem of the witnesses turning hostile. It is important that we identify the loopholes in the current criminal justice system, which allows unscrupulous witnesses and rich and influential persons like the Page 74 of 118 HC-NIC Page 74 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT accused herein to subvert the ideals of justice.
What are the probable solutions for eradicating the malaise of hostile witnesses, especially in highprofile cases, sensational murder cases involving persons like the deceased? What are the changes that need to be made in the current legislations to provide the necessary effective checks and dissuade the witnesses from turning hostile? Does a witness protection programme offer any viable solutions for the same.
The Law Commission of India in its 154th report had recommended that Section 164 of the Cr.P.C. be amended so as to make it mandatory for the investigating officer to get the statements of all the material witnesses, recorded by the Magistrate on oath. The statement thus recorded will be of much evidentiary value, would be useful for contradiction as well as corroboration and will deter the witnesses from turning hostile. Accordingly, addition of subsection 1A to Section 164 was proposed. Although such a solution would be desirable and would also protect the witness from coercion by police officers, it is highly impracticable as it would require large scale recruitment of more Magistrates solely for the purpose of recording the statement.
In light of the above limitation in the proposed amendment, the 178th report suggested the alternative that the proposed Section 164(1A) should be restricted to the offences punishable with ten or more years imprisonment or offences involving the death penalty. Nevertheless, it cannot be denied, that given the crime rate in India, it would be impossible for the Magistrates to perform any other functions apart from recording statements if the proposed Section 164(1A) is enacted.
Even if all the proposed amendments and solutions are executed Page 75 of 118 HC-NIC Page 75 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT and the witnesses are deterred from turning hostile merely on the inducement of pecuniary gains, it is hard to imagine how a witness would react if his life were at stake due to the threats by the accused. It would not be inappropriate to describe his position as being stuck between the devil and the deep sea, whereby he does not have a choice but to depose falsely before a Court of law, under the pressure of threat to life.
As long as the witnesses continue to turn hostile and do not make truthful deposition in the Court, justice will always suffer and people's faith in efficacy and credibility of judicial process and justice system will continue to be eroded and shattered. Mr. Soli J. Sorabjee, an eminent jurist states: "nothing shakes public confidence in the criminal justice delivery system more than the collapse of the prosecution owing to the witnesses turning hostile and retracting their previous statements".
The concept of an independent witness has almost become a utopian demand. If one were to go by statistics, majority of acquittals are as a result of the material witnesses becoming hostile. The statements recorded by the Investigating Officer under Section 161(3) of the Cr.P.C. have practically no significant value and are merely used to impeach the credibility of the witness. The social climate anyways heavily discourages any rightminded person to be bold and truthful and the legal immunity given to the witness to turn hostile whether for bona fide or oblique reasons, by and large encourages the witnesses to turn hostile, without any qualms for the same.
62 The Apex Court in the case of Ramesh and others vs. State of Haryana [(2017) 1 SCC 529] took a very serious note of the witnesses turning hostile in the criminal cases. His Lordship Justice Dr. A.K. Sikri, Page 76 of 118 HC-NIC Page 76 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT speaking for the Bench, has observed in paras 39 to 49 as under:
"39. We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the Investigating Officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the Court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations.
40. In some of the judgments in past few years, this Court has commented upon such peculiar behaviour of witnesses turning hostile and we would like to quote from few such judgments. In Krishna Mochi v. State of Bihar [(2002) 6 SCC 81], this Court observed as under:
"31. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or highups in the Government or close to powers, which may be political, economic or other powers including muscle power."
41. Likewise, in Zahira Habibullah v. State of Gujarat [(2006) 3 SCC 374], this Court highlighted the problem with following observations:
"40. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control, to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act Page 77 of 118 HC-NIC Page 77 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State representing by their presenting agencies do not suffer... there comes the need for protecting the witnesses. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth presented before the Court and justice triumphs and that the trial is not reduced to mockery.
41. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation. We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the "TADA Act") have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies."
42. Likewise, in Sakshi v. Union of India [(2004) 5 SCC 518], the menace of witnesses turning hostile was again described in the following words:
"32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of Page 78 of 118 HC-NIC Page 78 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in crossexamination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of subsection (2) of Section 327 Cr.P.C. should also apply in inquiry or trial of offences under Section 354 and 377 IPC."
43. In State v. Sanjeev Nanda [(2012) 8 SCC 450], the Court felt constrained in reiterating the growing disturbing trend:
"99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system.
100. This court in State of M.P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr. (AIR 2004 SC 524), this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.Page 79 of 118
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101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Siddhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 and in Zahira Habibullah Shaikh v. State of Gujarat, AIR 2006 SC 1367, had highlighted the glaring defects in the system like non recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false evidence but is seldom invoked."
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) Nonexistence of any clearcut legislation to check hostility of witness."
45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said: "witnesses are the eyes and ears of justice". When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah's case as well.
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46. Justifying the measures to be taken for witness protection to enable the witnesses to depose truthfully and without fear, Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked as under:
"11.3 Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise...Time has come for a comprehensive law being enacted for protection of the witness and members of his family."
47. Almost to similar effect are the observations of Law Commission of India in its 198th Report on "witness identity protection and witness protection programmes", as can be seen from the following discussion therein:
"The reason is not far to seek. In the case of victims of terrorism and sexual offences against women and juveniles, we are dealing with a section of society consisting of very vulnerable people, be they victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal code, 1860 and other special enactments, some of which we have referred to above, there are bound to be absolutely similar situations for victims and witnesses. While in the case of certain offences under special statutes such fear or danger to victims and witnesses may be more common and pronounced, in the case of victims and witnesses involved or concerned with some serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses, then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature falling under the Indian Penal Code, 1860. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection."Page 81 of 118
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48. Apart from the above, another significant reason for witnesses turning hostile may be what is described as 'culture of compromise'. Commenting upon such culture in rape trials, Pratiksha Bakshi "Justice is a Secret:
Compromise in Rape Trials" (2010) 44, Issue 3, Contributions to Indian Sociology, pp. 207233, has highlighted this problem in the following manner:
"During the trial, compromise acts as a tool in the hands of defence lawyers and the accused to pressurise complainants and victims to change their testimonies in a courtroom. Let us turn to a recent case from Agra wherein a young Dalit woman was gangraped and the rapist let off on bail. The accused threatened to rape the victim again if she did not compromise. Nearly a year after she was raped, she committed suicide. While we find that the judgment records that the victim committed suicide following the pressure to compromise, the judgment does not criminalise the pressure to compromise as criminal intimidation of the victim and her family. The normalising function of the sociolegal category of compromise converts terror into a bargain in a context where there is no witness protection programme. This often accounts for why prosecution witnesses routinely turn hostile by the time the case comes on trial, if the victim does not lose the will to live.
In other words, I have shown how legality is actually perceived as disruptive of sociality; in this instance, a sociality that is marked by caste based patriarchies, such that compromise is actively perceived, to put it in the words of a woman judge of a district court, as a mechanism for 'restoring social relations in society'."
49. In this regard, two articles by Daniela Berti delve into a sociological analysis of hostile witnesses, noting how village compromises (and possibly peer pressure) are a reason for witnesses turning hostile. In one of his articles [Daniela Berti, "Courts of Law and Legal Practice, pp.67], he writes:
"For reasons that cannot be explained here, even the people who initiate a legal case may change their minds later on and pursue nonofficial forms of compromise or adjustment. Ethnographic observations of the cases that do make it to the criminal courtroom thus provide insight into the kinds of tensions that arise between local society and the state judicial administration. These tensions are particularly palpable when witnesses deny before the judge what they allegedly said to the police during preliminary investigations. At this very moment they often become hostile. Here I must point out that the problem of what in common law terminology is called "hostile witnesses" is, in fact, general in India and has provoked many a reaction from judges and politicians, as Page 82 of 118 HC-NIC Page 82 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT well as countless debates in newspaper editorials. Although this problem assumes particular relevance at highprofile, well publicized trials, where witnesses may be politically pressured or bribed, it is a recurring everyday situation with which judges and prosecutors of any small district town are routinely faced. In many such cases, the hostile behavior results from various dynamics that interfere with the trial's outcome - village or family solidarity, the sharing of the same illegal activity for which the accused has been incriminated (as in case of cannabis cultivation), political interests, family pressures, various forms of economic compensation, and so forth. Sometimes the witness becomes "hostile" simply because police records of his or her earlier testimony are plainly wrong. Judges themselves are well aware that the police do write false statements for the purpose of strengthening their cases. Though well known in judicial milieus, the dynamics just described have not yet been studied as they unfold over the course of a trial. My research suggests, however, that the witness's withdrawal from his or her previous statement is a crucial moment in the trial, one that clearly encapsulates the tensions arising between those involved in a trial and the court machinery itself."
"In my fieldwork experiences, witnesses become "hostile" not only when they are directly implicated in a case filed by the police, but also when they are on the side of the plaintiff's party. During the often rather long period that elapses between the police investigation and the trial itself, I often observed, the party who has lodged the complaint (and who becomes the main witness) can irreparably compromise the case with the other party by means of compensation, threat or blackmail."
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.
Page 83 of 118HC-NIC Page 83 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 64 I should not shut my eyes to the gross and disturbing facts in the instant case where even the independent eyewitnesses, who were present on the spot, turned hostile. Those witnesses, who identified the accused persons in the identification parade also, turned hostile. The prosecution, by and large, could be said to have established only one thing that the deceased died on account of the fire arm injuries.
65 Mr. Raju, the learned senior counsel vehemently submitted that this Court has not gone through the evidence which has been recorded, and in such circumstances, this Court should not draw an inference that the prosecution is likely to fail, as 105 main witnesses have turned hostile. This Court should not look into the evidence at this stage and appreciate the same more particularly if a retrial is to be ordered. What is important to be looked into is the method and crude manner in which the accused have interfered boldly and directly with the administration of justice. If a witness becomes hostile to subvert the judicial process, the Court should not stand as a mute spectator and every effort should be made to bring home the truth. The criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. I am conscious of the fact that a retrial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to extreme existence to avert "a failure of justice". The case on hand is not one of any omission or an illegality in the procedure. Such things can be taken care of by the Appellate Court, as the same has plenary power in reappreciating the evidence. The case on hand is one of complete failure of justice.
66 At this stage, let me look into one of my orders on which strong reliance has been placed by Mr. Raju, the learned senior counsel Page 84 of 118 HC-NIC Page 84 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT appearing for the respondent No.5. In the case of Lavjibhai Amarshibhai Bhalodiya vs. State of Gujarat and others [Special Criminal Application (Transfer) No.3167 of 2016 decided on 22nd March 2017], this Court observed in the facts of that case as under:
"15. This is a case, in which, a denovo trial is being prayed for even before the judgment and order is pronounced by the Trial Court. The Trial Court is yet to determine the guilt or innocence of the accused on the overall appreciation of the evidence on record. The only ground, on which, transfer to another court of the criminal case is prayed for with a direction for a denovo trial is that many witnesses turned hostile and they might have turned hostile because of the pressure or the influence of the accused persons, more particularly, the accused No.7, who is a police officer. It is true that there was a complaint at a point of time at the instance of the Public Prosecutor also of unnecessary interference at the end of the accused persons, but the record reveals that, thereafter, another Public Prosecutor was assigned with the case, and to her satisfaction, the evidence was recorded and closed. As noted above, out of 36 witnesses, 11 witnesses have full fledged supported the case of the prosecution, including the complainant himself.
16. Just because some of the witnesses have turned hostile, more particularly, the panch witnesses, by itself, would not be sufficient to order a denovo trial. Something substantial should be shown, on the basis of which, the Court can reach to the conclusion that the trial has not been conducted in a fair and transparent manner and obstructions were raised in the way of the prosecution in leading the appropriate and cogent evidence."
67 The facts in the above referred case were altogether different. In fact, the application in substance was one for transfer of the criminal case from one Court to the other. There was also a prayer to conduct a de novo trial, as few witnesses had turned hostile. The facts in the case of Lavjibhai (supra), by no stretch of imagination, can be compared with the facts of the case on hand. In the case of Lavjibhai (supra), I observed that something substantially needs to be shown for the Court to reach to the conclusion that the trial has not been conducted in a fair and transparent manner and retrial is necessary. The case on hand is one Page 85 of 118 HC-NIC Page 85 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT in which more than something substantial has been shown by the writ applicant, warranting a retrial. Thus, the order passed in the matter of Lavjibhai (supra) is of no avail to the accused persons.
68 In Ram Chander v. State of Haryana [(1981) 3 SCC 191 while speaking about the presiding judge in a criminal trial, Chinnappa Reddy, J. observed that if a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The learned Judge reproduced a passage from Sessions Judge, Nellore v. Intha Ramana Reddy [(1972) Cri. L.J. 1485] which reads as follows: "Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172(2) of the Code of Criminal Procedure enables the court to send for the policediaries in a case and use them to aid it in the trial. The record of the proceedings of the Committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial."
69 While saying so, it has been further held that the Court may actively participate in the trial to elicit the truth and to protect the weak and the innocent and it must, of course, not assume the role of a prosecutor in putting questions.
70 In Rattiram and others v. State of Madhya Pradesh [(2012) 4 SCC 516] speaking on fair trial, the Court opined that: Page 86 of 118 HC-NIC Page 86 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT "... Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism."
In the said case, it has further been held: "60. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in Mangal Singh v. Kishan Singh [(2010) 17 SCC 303] wherein it has been observed thus: (SCC p. 307, para 14) "14. ... Any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious effect on the society generally, and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore, no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence." (Emphasis supplied)
61. It is worth noting that the Constitution Bench in Iqbal Singh Marwarh v. Meenakshi Marwah [(2005) 4 SCC 370] SCC p. 387, para 24) though in a different context, had also observed that delay in the prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost.
62. We have referred to the aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of an accused (quaere a victim). Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute applepie order in carrying out the adjective law, would only be sound and fury signifying nothing.
x x x x x Page 87 of 118 HC-NIC Page 87 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT
64. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim's right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice."
71 In J. Jayalalithaa and others v. State of Karnataka [(2014) 2 SCC 401], it has been ruled that a fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, a fair trial must be accorded to every accused as well as the victim in the spirit of the right to life and personal liberty and both must get a free and fair, just and reasonable trial. Any breach or violation of the public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. It has further been observed that in all circumstances, the Courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the "majesty of the law" and the Courts should not turn a blind eye to the vexatious or oppressive conduct that occurs in relation to the criminal proceedings. Further, the Court has observed:
"Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should Page 88 of 118 HC-NIC Page 88 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. "No trial can be allowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State machinery and that is the raison d'etre in prescribing the time frame" for conclusion of the trial."
72 In Bablu Kumar and others v. State of Bihar and another [(2015) 8 SCC 787, the Supreme Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1], Rattiram (supra), J. Jayalalithaa (supra), State of Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715] and other decisions and came to hold that keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the Court should not be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. It has been further stated that the law does not countenance a "mock trial". It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is dutybound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control.
73 The Supreme Court in the case of Bablu Kumar and others vs. State of Bihar [Criminal Appeal No.914 of 2015 decided on 20th July 2015] considered and explained the role of the prosecution and the duty of the Court within the paradigm of fair trial which in the ultimate Page 89 of 118 HC-NIC Page 89 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT eventuality results in appropriate stability of criminal justice dispensation system. After considering various other judgments, the Court observed as under:
"18. Keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the Court, it can irrefragably be stated that the Court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. Law does not countenance a 'mock trial'. It is a serious concern of the society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. The court is under the legal obligation to see that the witnesses who have been cited by the prosecution are produced by it or if summons are issued, they are actually served on the witnesses. If the court is of the opinion that the material witnesses have not been examined, it should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all the material witnesses but that does not necessarily mean that the prosecution can choose not to examine any witness and convey to the court that it does not intend to cite the witnesses. The Public Prosecutor who conducts the trial, has a statutory duty to perform. He cannot afford to take things in a light manner. The Court also is not expected to accept the version of the prosecution as if it is sacred. It has to apply its mind on every occasion. Nonapplication of mind by the trial court has the potentiality to lead to the paralysis of the conception of fair trial.
74 The Supreme Court in the case of Ajay Kumar Ghoshal vs. State of Bihar [Criminal Appeals Nos.119 122 of 2017 decided on 31st January 2017] in the context that Section 386 of the Cr.P.C. and the powers of the Appellate Court to order a de novo trial, observed as under:
"10. Section 386 Cr.P.C. deals with the powers of the appellate court. As per Section 386(b) Cr.P.C. in an appeal from a conviction, the appellate Page 90 of 118 HC-NIC Page 90 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT court may : (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii)alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.
11. Though the word "retrial" is used under Section 386(b)(i) Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularly on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wring rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard.
12. 'De novo' trial means a "new trial" ordered by an appellate court in exceptional cases wherein the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold 'de novo' trial. But the question is when such power should be exercised. As stated in Pandit Ukha Kolhe vs. State of Maharashtra (1964) SCR 926, the Court held that:
"An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons."Page 91 of 118
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13. This Court, while dealing with the question whether the High Court should have quashed the trial proceedings only on account of declarationnn of the legal position made by the Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act, this Court stated, 'a de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable; it should be limited to the extreme exigency to avert 'a failure of justice'. Observing that any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial". In State of M.P. vs. Bhooraji and Ors. (2001) 7 SCC 679, the Court went on to say further as follows:
"This is because the appellate court has plenary powers for re evaluating or reappraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting a failure of justice. The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles to reach the court and deposed their versions in the very same case. To them and the public the reenactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation."
14. In Bhooraji's case (supra), the Court referred to Chapter XXXV of the Code and, particularly, Sections 461, 462 and 465 (1). After noticing the above provisions, the Court observed in paragraphs (15) and (16) of the order as follows:
"15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition Page 92 of 118 HC-NIC Page 92 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT that unless such error, omission or irregularity has occasioned a failure of justice the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
16. What is meant by a failure of justice occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani vs. State of Karnataka [2001 (2) SCC 577] thus:
"23. We often hear about failure of justice and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment, 1977 (1) All E.R. 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.""
15. In Gopi Chand vs. Delhi Administration, AIR 1959 SC 609, a Constitution Bench of this Court was concerned with the criminal appeals wherein plea of the validity of the trial and of the orders of conviction and sentence was raised by the appellant. That was a case where the appellant was charged for three offences which were required to be tried as a warrant case by following the procedure prescribed in the Code of Criminal Procedure, 1860 but he was tried under the procedure prescribed for the trial of a summons case. The procedure for summons case and warrants case was materially different. The Constitution Bench held that having regard to the nature of the charges framed and the character and volume of evidence led, the appellant was prejudiced, accordingly, set aside the orders of conviction and sentence and the Constitution Bench held as under:
"29....The offences with which the appellant stands charged are of a very serious nature; and though it is true that he has had to undergo the ordeal of a trial and has suffered rigorous imprisonment for some time that would not justify his prayer that we should not order his retrial. In our opinion, having regard to the gravity of the offences charged against the appellant, the ends of justice require that we should direct that he should be tried for the said offences de novo according to law. We also direct that the proceedings to be taken against the appellant hereafter should be commenced without delay and should be disposed as expeditiously Page 93 of 118 HC-NIC Page 93 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT as possible."
16. In Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors. (2004) 4 SCC 158, [Best Bakery case] being an extraordinary case, the Supreme Court was convinced that the witnesses were threatened to keep themselves away from the Court and in such facts and circumstances of the case, not only the Court directed a 'de novo' trial but made further direction for appointment of the new prosecutor and retrial was directed to be held out of the State of Gujarat. The law down in Best Bakery case for retrial was in the extraordinary circumstances and cannot be applied for all cases.
17. After considering the question a "speedy trial" and "fair trial" to a person accused of a crime and after referring to a catena of decisions and observing that guiding factor for retrial must always be demand of justice, in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) [2012 (9) SCC 408], this Court held as under:
"41. 'Speedy trial' and 'fair trial' to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed visavis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered.
42. The appellate court hearing a criminal appeal from a judgment Page 94 of 118 HC-NIC Page 94 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked."
18. As discussed earlier, the High Court has not shown as to how the alleged lapses pointed out by the High Court have resulted in miscarriage of justice. When the accused prefers an appeal against their conviction and sentence, the appellate court is duty bound to consider the evidence on record and independently arrive at a conclusion. In our considered view, the High Court erred in remitting the matter back to the trial court for fresh trial and the impugned order cannot be sustained."
75 Thus, it is evident from the case law referred to above that a de novo trial or retrial of the accused should be ordered in exceptional and rare cases and such course becomes indispensable to avert the failure of justice. The guiding factor for retrial must always be the demand of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by any extraneous consideration. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the Court should not hesitate in ordering a retrial in the interest of justice.
● EXERCISE OF WRIT JURISDICTION FOR THE PURPOSE OF
RETRIAL:
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76 I am conscious of the fact that in the present case, I am essentially
exercising writ jurisdiction under Article 226 of the Constitution of India and I am 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 jurisdiction to deal with the situation and to issue necessary and appropriate directions in the matter. To answer this question, I can do no better than quote the observations of Honourable Justice Ranjan Gogoi (as His Lordship then was). A Division Bench of the Punjab and Haryana High Court, headed by the then Chief Justice Ranjan Gogoi (as His Lordship then was), took suo motu cognizance of a matter in which the accused persons came to be acquitted and the State failed to prefer any acquittal appeal. In the said case, the suo motu cognizance was taken on the basis of a news item published in the 'Hindustan Times' dated November 14, 2007. A learned Single Judge of the Punjab and Haryana High Court first took notice of the news item, which reads as under:
"Hindustan Times dated November 14, 2007 has published a news item titled "fake currency case witnesses resile as SSP Pherurai, brother walk free" revealing that G.S. Pherurai, Senior Superintendent of Police has been acquitted by Additional Sessions Judge (Ad hoc) working as Fast Track Court at Ambala. The news item would also show that G.S. Pherurai, SSP was prosecuted for being found in possession and for circulating fake currency in the market. Acquittal, as such, may not be a cause of much concern, but the manner in which this has come about, may be a matter of serious concern. Ten police witnesses examined by prosecution have turned hostile. Portion of their versions has been reproduced in the news paper, which may be disturbing feature of the case. They can clearly be seen hiding the truth to favour the accused/police officer. The trial Judge appears to have remained silent spectator and may be seen to have not performed his duties well. It is failure of justice. Allegation against the accused was of recovery of fake currency of Rs. five lacs, which was covered by various forms of media and displayed by way of photograph or by video on channels. It can either be a case of fake recovery or a unfair acquittal. Both aspects would need some looking into."Page 96 of 118
HC-NIC Page 96 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 77 The learned Single Judge brought to the notice of the Division Bench the news item and the Division Bench, thereafter, took suo motu cognizance and declared the trial of the accused persons to be wholly vitiated and non est in law. The acquittal was ordered to be set aside. The Division Bench ordered retrial. In the aforesaid background, the observations made in paras 33 and 34 are very important and I rely upon the same. The same reads thus:
"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."
78 I am conscious of the fact that in the case before the Division Bench of the Punjab and Haryana High Court, the witnesses, who had turned hostile at a later stage filed affidavits before the Court stating that they were compelled to resile from their earlier statements on account of adverse action threatened against them by the high ranking Page 97 of 118 HC-NIC Page 97 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT police officials. Considering the same, the Division Bench thought fit to exercise its extraordinary jurisdiction under Article 226 of the Constitution and ordered a retrial. The Court also took notice of the fact that no acquittal appeal was filed. It is true and a hard reality that so far as the case on hand is concerned, none of witnesses have come forward saying that they were compelled to resile from their earlier statements on account of threats and inducements by the accused persons. However, this by itself, in my opinion, is no ground to decline the prayer of retrial. It will be travesty of justice to say that retrial can be ordered only if the witnesses come forward saying that they are ready and willing to depose in line and tune with their statements made before the police. As observed by His Lordship, Justice Gogoi that new paths need to be chartered and innovations made to deal with the myriad situations that may arise from time to time. The ultimate objective of exercise of the writ jurisdiction under Article 226 of the Constitution should be to secure justice and to strike injustice. This is one case on hand in which the Court should rise to the occasion. The silence of the witnesses is quite conspicuous.
79 It is apt at this stage to refer to the decision in the case of Ayodhya Dube vs. Ram Sumer Singh [(1981) Supp SCC 83], wherein a threeJudge Bench of the Supreme Court, while explaining the decision in the case of K. Chinnaswamy Reddy vs. State of Andhra Pradesh [AIR 1962 SC 1788] observed that:
"....we only wish to say that the criminal justice system does not admit of 'piegonholing'. 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.'"Page 98 of 118
HC-NIC Page 98 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 80 I also deem appropriate to quote the observations made by the Division Bench of the Punjab and Haryana High Court as contained in paras 31 and 32:
"31. This will bring the Court to a consideration of what would be the primary issue in the case, viz., legality of the trial in which the two accused have been acquitted. If the Court is to go by the version narrated by PW4 to PW10 before this Court and also in the contemporaneous documents, as referred to earlier, viz., representation dated 27.6.2008 addressed to the Director General of Police and the report of the Inspector General of Police, ZoneI, Punjab dated 30.10.2008, the trial against the accused persons is a travesty of justice and opposed to the basic canons of criminal jurisprudence. All the official witnesses examined by the prosecution had resiled from their earlier statements implicating the accused in the offence alleged. The police witnesses who had reportedly recovered the counterfeit currency from the residence of the accused and the bank manager who had opined that the seized currency was counterfeit did not support the prosecution case in Court. However, the said witnesses had subsequently filed separate affidavits before this Court stating that they were compelled to resile from their earlier statements on account of adverse action threatened against them by the highranking police officials. Such witnesses have also stated before this Court that they were told to make statements in Court which would favour the accused. Accordingly, PW4 to PW10 had deposed contradicting to their earlier versions and were declared hostile. The trial Judge had remained a mute spectator in a scenario where, one by one, all the prosecution witnesses were turning hostile. The learned Judge conducted himself as if, under the law, he was obliged to remain silent and consider only the versions narrated by the prosecution witnesses in Court and on that basis he was left with no option but to acquit the accused. The manner in which the trial was conducted leaves no doubt in our minds that the whole process was tainted and the outcome thereof was wholly detrimental to the Rule of law which the Court is duty bound to uphold. The casualty of the entire process, which can be characterized as perverse, is the justice delivery system resulting in enormous loss of public confidence which is vital to the sound health and even for the survival of the system of dispensation of justice.."
81 The Courts, and in particular, the High Courts and the Supreme Court, are the sentinels of justice and have been vested with the extraordinary powers of judicial review and supervision to ensure that Page 99 of 118 HC-NIC Page 99 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT the rights of the citizens are duly protected. The powers conferred on the High Courts are in a way wider in scope. The High Courts are authorised under Article 226 of the Constitution, to issue directions, orders, or writs to any person or authority, including any government to enforce fundamental rights and, "for any other purpose". It is manifest from the difference in the phraseology of Articles 32 and 26 of the Constitution that there is a marked difference in the nature and purpose of the right conferred by these two articles. Whereas the right guaranteed of Article 32 can be exercised only for the enforcement of fundamental rights conferred by para III of the Constitution, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights, but "for any other purpose" as well i.e. for enforcement of any legal right conferred by a statute, etc. 82 In Tirupati Balaji Developers (P) Ltd. and Ors. v. State of Bihar and Ors. (2004) 5 SCC 1 : (AIR 2004 SC 2351 : 2004 AIR SCW 2522), the Supreme Court had observed thus:
"8. Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Courts both are courts of record. The High Court is not a court "subordinate" to the Supreme Court. In a way the canvas of judicial powers vesting in the High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential elections or interState disputes which the Constitution does not envisage being heard and determined by High Courts."
83 In Dwarka Nath vs. ITO [AIR 1966 SC 81], the Supreme Court held that Article 226 of the Constitution is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. This Article enables the High Court Page 100 of 118 HC-NIC Page 100 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT to modify the relief to meet the peculiar and extraordinary circumstances of the case.
84 Article 21 of the Constitution of India, one of the fundamental rights enshrined in para III of the Constitution declares that no person shall be deprived of his "life" or "personal liberty", except, according to the procedure established by law. It is trite that the words "life" and "personal liberty" are used in the Article as compendious terms to include within themselves of the varieties of the life which go to make up the personal liberties of a man and not merely the right to the continuous of a person animal existence. [See: Kharak Singh Vs. State of U.P., (AIR 1963 SC 1295)].
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 Page 101 of 118 HC-NIC Page 101 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT worms turned. 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.
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 Page 102 of 118 HC-NIC Page 102 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 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 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).
● SECTIONS 311 AND 391 OF THE CR.PC. AND SECTION 165 OF THE EVIDENCE ACT:
87 It has been vehemently submitted before me that the prosecuting agency could have preferred an application under Section 311 of the Cr.P.C. for recalling of the witnesses. It has also been submitted that even in an appeal, the prosecution can pray for leading additional evidence under Section 391 of the Cr.P.C. Therefore, in such circumstances, this Court should not order a retrial.
88 It is true that Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on the Presiding Officer of the Court to elicit the necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reason to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The power of the Court Page 103 of 118 HC-NIC Page 103 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. However, so far as the case on hand is concerned, Section 311 of the Code or Section 391 of the Code or Section 165 of the Evidence Act is not the solution to the problem.
89 In a very recent pronouncement of the Supreme Court in the case of Rajaram Prasad Yadav vs. State of Bihar [2013 Criminal Law Journal 3777], the Supreme Court laid down the following principles for the purpose of dealing with an application under Section 311 of the Cr.P.C. read with Section 138 of the Evidence Act.:
"a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311, Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and reexamine any such person.
d) The exercise of power under Section 311, Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
h) The object of Section 311, Cr.P.C. simultaneously imposes a duty on Page 104 of 118 HC-NIC Page 104 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311, Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."
90 As held by a threeJudge Bench decision of the Supreme Court in the case of Mohd. Hussain Kochra vs. K. S. Dalipsinghji [AIR 1970 SC 45], the Trial Court has an inherent power to recall a witness if it is satisfied that he is prepared to give evidence which is materially different from what he had given at a trial. However, there has to be materials upon which the Court so satisfied.
Page 105 of 118HC-NIC Page 105 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 91 The case on hand is one wherein each and every witness, excluding the public servants and police officers, have been won over outright. They might have been won over either by the power of wallet or power of bullet or both. The recording of the evidence has been closed long time back. The matter has been now posted by the Trial Court for the pronouncement of judgment. The C.B.I. also did not give any indication at any point of time that they had in mind to file applications for recalling of the witnesses under Section 311 of the Cr.P.C. In fact, I am taken by surprise or rather shocked with the stance adopted by the C.B.I. in the matter. The C.B.I. has made itself very clear that it does not want a retrial. However, they have prayed before this Court that few witnesses may be reexamined. It is difficult for me to read the mind of the C.B.I., but at the same time, I do not approve the stance of the C.B.I., and more particularly, having regard to the serious nature of the matter.
92 The malady afflicting our criminal justice system is much more deeprooted. Cosmetic changes just will not do much to deliver the justice. The system requires a comprehensive revamp. The V.S. Malimath committee on reforms of the criminal justice system prepared an outline for such a wideranging correction in 2003. For a situation like the one on hand, where the witnesses refused to support the prosecution's case, the committee has suggested the following measures:
a) Holding incamera proceedings,
b) Taking measures to keep the identity of the witnesses secret,
c) Ensuring anonymity, and
d) Making arrangements to ensure their protection.
e) Witnesses in Court should be treated with respect and dignity;Page 106 of 118
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f) They should be adequately compensated for spending money on travel and accommodation;
g) Comfort, convenience and dignity of the witnesses while deposing in the Court of law should be ensured; and
h) A law for protection of the witnesses should be enacted as there is no such law in India.
i) The Constitution of a National Security Commission at the national level and a State security commissions at the state level.
93 In the aforesaid context, I may refer to a decision of the Supreme Court in the case of NHRC vs. State of Gujarat [(2009) 6 SCC 767]. The Supreme Court, while laying stress on the importance of witnesses in a criminal trial and the steps necessary to be taken for their protection, observed as under:
"7. It is an established fact that witnesses form the key ingredient in a criminal trial and it is the testimonies of these very witnesses, which establishes the guilt of the accused. It is, therefore, imperative that for justice to be done, the protection of witnesses and victims becomes essential, as it is the reliance on their testimony and complaints that the actual perpetrators of heinous crimes during the communal violence can be brought to book. Vide an order dated 8th August, 2003 in the matter of National Human Rights Commission v. State of Gujarat, this Court regretted that "no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses."
8. Further, in the case of Zahira v. State of Gujarat (2004 (4) SCC
158), while transferring what is known as the 'Best Bakery Case', to Mumbai vide its order dated 12th April, 2004, this Court directed :
"77...The State of Gujarat shall also ensure that the witnesses are produced before the concerned court, whenever they are required to attend them, so that they can depose freely without any apprehension of threat or coercion from any person. In case any witness asks for protection, the State of Maharashtra shall also provide such protection as deemed necessary, in addition to the protection to be provided for by the State of Gujarat."Page 107 of 118
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9. The Law Commission in its 14th Report (1958) referred to 'witness protection', but that was in a limited sense. That related to proper arrangements being provided in the Courthouse, the scales of travelling allowance, their daily allowance etc. The National Police Commission Report (1980) again dealt with the inadequacy of daily allowance for the witnesses, but nothing more.
10. The 154th Report of the Law Commission 1996 contained a chapter on Protection and Facilities to Witnesses. The recommendations mostly related to allowances and facilities to be made available for the witnesses. However, one of the recommendations was : "Witnesses should be protected from the wrath of the accused in any eventuality". But, Commission had not suggested any measure for the physical protection of witnesses. The 178th Report of Law Commission, again, referred to the fact of witness turning hostile, and the recommendations were only to prevent witnesses from turning hostile. The report suggested an amendment to insert Section 164A to the Code. The Law Commission of India's 198th Report has also voiced similar concerns and has categorically stated "it is accepted today that WIP is necessary in the case of all serious offences wherein there is danger to witnesses and it is not confined to cases of terrorism or sexual offences."
11. Under the English Law, threatening a witness from giving evidence, is contempt of Court. So also any act of threat or revenge against a witness after he has given evidence in Court, is also considered as contempt. In 1994 the U.K. Government enacted a law known as Criminal Justice and Public Order Act, 1994 which provides for punishment for intimidation of witnesses. Section 51 of the Act not only protects a person who is actually going to give evidence at a trial, but also protects a person who is helping with or could help with the investigation of a crime. Under a similar law in HongKong, Crimes Ord. (Cap. 200) HK, if the threat or intimidation is directed even as against a friend or relative of the witness, that becomes a punishable offence.
12. In the United States, the Organized Crime Control Act, 1970 and later the Comprehensive Crime Control Act, 1984 authorized the Witness Security Programme. The Witness Security Reform Act, 1984 provides for relocation and other protection of a witness or a potential witness in an official proceeding concerning an organised criminal activity or other serious offence. Protection may also be provided to the immediate family of, or a person closely associated with, such witness or potential witness if the family or person may also be endangered on account of the participation of the witness in the judicial proceeding. The Attorney General takes the final decision whether a person is qualified for protection from bodily injury and otherwise to assure the health, safety and welfare of that person. In a large number of cases, witnesses have been Page 108 of 118 HC-NIC Page 108 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT protected, relocated and sometimes even given new identities. The Programme assists in providing housing, medical care, job training and assistance in obtaining employment and subsistence funding until the witness becomes selfsufficient. The Attorney General shall not provide protection to any person if the risk of danger to the public, including the potential harm to innocent victims, overweighs the need for that person's testimony.
13. A similar programme is in Canada under Witness Protection Act, 1996. The purpose of the Act is "to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance in law enforcement matters" [Section 3]. Protection given to a witness may include relocation, accommodation and change of identity as well as counseling and financial support to ensure the security of the protectee or to facilitate his becoming selfsufficient. Admission to the Programme is determined by the Commissioner of Police on a recommendation by a law enforcement agency or an international criminal court or tribunal [Sections 5 and 6]. The extent of protection depends on the nature of the risk to the security of the witness, the value of the evidence and the importance in the matter.
14. The Australian Witness Protection Act, 1994 establishes the National Witness Protection Programme in which (amongst others) the Commissioner of the Australian Federal Police arranges or provides protection and other assistance for witnesses [Section 4]. The witness must disclose a wealth of information about himself before he is included in the Programme. This includes his outstanding legal obligations, details of his criminal history, details of his financial liabilities and assets etc. [Section 7]. The Commissioner has the sole responsibility of deciding whether to include a witness in the Programme.
15. The Witness Protection Act, 1998 of South Africa provides for the establishment of an office called the Office for Witness Protection within the Department of Justice. The Director of this office is responsible for the protection of witnesses and related persons and exercises control over Witness Protection Officers and Security Officers [Section 4]. Any witness who has reason to believe that his safety is threatened by any person or group or class of persons may report such belief to the Investigating Officer in a proceeding or any person incharge of a police station or the Public Prosecutor etc. [Section 7] and apply for being placed under protection. The application is then considered by a Witness Protection Officer who prepares a report, which is then submitted to the Director [Section 9]. The Director, having due regard to the report and the recommendation of the Witness Protection Officer, takes into account the following factors, inter alia, [Section 10] for deciding whether a person should be placed under protection or not :
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(i) The nature and extent of the risk to the safety of the witness or related person.
(ii) The nature of the proceedings in which the witness has given evidence or may be required to give evidence.
16. The importance, relevance and nature of the evidence, etc. in European countries such as Italy, Germany and Netherlands, the Witness Protection Programme covers organised crimes, terrorism, and other violent crimes where the accused already know the witness/victim.
17. But it would not be proper to give any general directions for witness protection. It would primarily depend upon the factsituation of each case. Practical difficulties in effectively implementing any witness protection scheme cannot be lost sight of. We are considering that aspect focusing on the factsituation of the present cases. The need for setting up separate victim and witness protection units in the trial of mass crimes has been acknowledged in the setting up of international tribunals to deal with them. The International Criminal Tribunal for Rwanda has formulated Rules for protection of victims and witnesses.
18. Similar provisions exist in the Statute for the creation of an International Criminal Court (in short 'ICC'). In most of the cases, witnesses are the victims of the crime. Most vulnerable amongst them are women and children. Under the existing system they are mere pawns in a criminal trial and there is very little concern for protecting their real interests. The protection is necessary so that there is no miscarriage of justice; but protection is also necessary to restore in them, a sense of human dignity.
19. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly in Resolution 40/34 of 29th November, 1985. According to the first paragraph of this declaration, victims of crime are described as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in Member States, including those laws proscribing criminal abuse of power. It is they who need protection.
20. This is essentially to obliterate the apprehension that the public prosecutor is not fair in court or is not conducting the prosecution in the proper manner. The State of Gujarat shall appoint public prosecutors in each of the cases in consultation with the SIT which opinion shall be final and binding on the State Government.
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21. It needs to be emphasized that the rights of the accused have to be protected. At the same time the rights of the victims have to be protected and the rights of the victims cannot be marginalized. Accused persons are entitled to a fair trial where their guilt or innocence can be determined. But from the victims' perception the perpetrator of a crime should be punished. They stand poised equally in the scales of justice.
22. In order to ensure that the trials are conducted in a fair manner and within the realm of protecting the rights of the victims it is important that the decorum of the court is maintained at all times. In order to balance the need for a public trial with the need to ensure that victims/witnesses are not intimidated within the court rooms, it is necessary for the court to impose reasonable restrictions on the entry of persons into the court room.
23. The role of Public Prosecutors in ensuring a fair trial is of paramount importance. This Court in S. B. Shahane and Ors. v. State of Maharashtra and another, 1995 Supp (3) SCC 37, had stressed on the desirability of separation of prosecution agency from investigation agency. It was observed that such Assistant Public Prosecutors could not be allowed to continue as personnel of the Police Department and to continue to function under the control of the Head of the Police Department. State Governments were directed to constitute a separate cadre of Assistant Public Prosecutors by creating a separate Prosecution Department making its head directly responsible to the State Government.
24. Many commonwealth countries like Australia have a Commonwealth Director of Public Prosecutions, which was set up by the Director of Public Prosecutions Act, 1983 and started operations in 1984. The nine States and territories of Australia also have their own DPPs. Ultimate authority for authorizing prosecutions lies with the Attorney General. However, since that is a political post, and it is desired to have a nonpolitical (public service) post carry out this function in most circumstances, the prosecutorial powers of the AG are normally delegated to the DPP. However, in South Australia the AG may direct the DPP to prosecute or not to prosecute. This is a very rare occurrence. It is common for those who hold the office of Commonwealth or State DPP later to be appointed to a high judicial office.
25. In Canada, each province's Crown Attorney Office (Canada) is responsible for the conduct of criminal prosecutions. In Ontario, local Crown Attorney in the Criminal Law Division is in charge of criminal cases. Only British Columbia, Nova Scotia and Quebec (a civil code jurisdiction) have a Director of Public Prosecutions office. Recent legislation passed by Parliament split the conduct of federal prosecutions from the Department of Justice (Canada), and created the Office of the Director of Public Prosecutions (officially to be called as Public Prosecution Service of Canada). This legislation came into effect on December 12, Page 111 of 118 HC-NIC Page 111 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 2006. The Director of Public Prosecutions of HongKong, China heads the prosecutions Division of the Department of Justice, which is responsible for prosecuting trials and appeals on behalf of the Hong Kong Special Administrative Region, providing legal advice to law enforcement agencies, acting on behalf of the Secretary for Justice in the institution of criminal proceedings, and providing advice and assistance to bureaux and departments in relation to any criminal law aspects of proposed legislation. The DPP is superintended by the Secretary for Justice, who is also accountable for the decisions of the DPP.
26. The Director of Public Prosecutions in the Republic of Ireland has been responsible for prosecution, in the name of the People, of all indictable criminal offences in the Republic of Ireland since the enactment of the Prosecution of Offences Act, 1974. Before 1974, all crimes and offences were prosecuted at the suit of the Attorney General. The DPP may also issue a certificate that a case should be referred to the Special Criminal Court; a juryless trial court usually reserved for terrorists and organized criminals.
27. In South Africa public prosecutions are conducted by an independent National Director of Public Prosecutions (NDPP). The NDPP is supported by a Chief Executive Officer, Marion Sparg, Deputies, Regional Directors of Public Prosecutions (DPP's), and several Special Directors. The National Director is also Head of the controversial Directorate of Special Operations (DSO) commonly known as the Scorpions which deals with priority and organized crime. In 2005, the unit instituted proceedings against the country's Deputy President, Jacob Zuma, leading to his dismissal.
28. In England and Wales, the office of Director of Public Prosecutions was first created in 1880 as part of the Home Office, and had its own department from 1908. The DPP was only responsible for the prosecution of a small number of major cases until 1986 when responsibility for prosecutions was transferred to a new Crown Prosecution Service with the DPP as its head. He/she is appointed by the Attorney General for England and Wales. In Northern Ireland a similar situation existed, and the DPP now heads the Public Prosecution Service for Northern Ireland.
29. The Law Commission in 1958 had recommended that a Director of Prosecutions be set up having its own cadre, though this recommendation was not included in the Code then. Again in 1996 the Law Commission in its 154th report identified as Independent Prosecuting Agency as one of the several areas within the Code which required redesigning and restructuring. The Law Commission supported most of the proposed amendments to the Code as contained in the proposed Code of Criminal Procedure Amendment Bill, 1994. Recommendations related to the structure of a Directorate of Prosecutions at the State level, to be adopted by a State Government in the event it decided to set up a cadre of Page 112 of 118 HC-NIC Page 112 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT prosecutors. The Law Commission further recommended that the structure of State level Directorates of Prosecution be given statutory status through an amendment to the Code. Despite the absence of such a requirement and inadequacy of the Provisions in the Code a number of States mainly, Delhi, Andhra Pradesh, Bihar, Goa, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Orissa, Tamil Nadu and Uttaranchal, established a Directorate of Prosecution.
30. By an amendment in 2006, Section 25A was inserted in the Code, which categorically legislated for the creation of a Directorate of Prosecution in every state.
"25A. Directorate of Prosecution. (1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under subsection (1), or as the case may be, subsection (8), of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under subsection (3), or as the case may be, subsection (8), of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under subsection (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.Page 113 of 118
HC-NIC Page 113 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT (8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor."
31. As noted above, the role of victim in a criminal trial can never be lost sight of. He or she is an inseparable stakeholder in the adjudicating process. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, was adopted by the General Assembly through a Resolution 40/34 of 29th November, 1985. Articles 4 and 5 of the abovementioned United Nations Declaration categorically states :
4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
32. The appointment of Prosecutors to these trials has to be made in consultation with SIT, whose opinion would be binding on the State Government.
33. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly through a Resolution 40/34 of 29th November, 1985 categorically through Section 6
(b) provides :
"6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by :
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system."
34. In the United States of America, the existing Crime Victims Rights Act of 2004, categorically through section 3771(4) from chapter 237 provides for "the right to be heard at any public proceeding involving release, pleas or sentencing."
35. This Court had held in U.P.S.C. v. S. Papiah (1997) 7 SCC 614, that a closure report by the Prosecution cannot be accepted by the court without hearing the informant.
Page 114 of 118HC-NIC Page 114 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT "9...'4.... There can, therefore, be no doubt that when, on a consideration of the report made by the officerincharge of a police station under Section 2(i) of Section 173 the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom the report is forwarded under subsection (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of the consideration of this report.'" (Emphasis in original) This position was illuminatingly stated in Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968 SC 117).
36. In J.K. International v. State Government of NTC (2001) 3 SCC 462, this Court had held that :
"A person at whose behest an investigation is lunched by the police is not altogether wiped out of the scenario of the trial merely because the investigation was taken over by the police and the chargesheet was laid by them."
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.
Page 115 of 118HC-NIC Page 115 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 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.
[3] The retrial shall commence at the earliest and shall proceed on the daytoday basis.
[4] The retrial shall be incamera 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 Page 116 of 118 HC-NIC Page 116 of 118 Created On Fri Jun 30 00:18:07 IST 2017 R/SCR.A/2135/2017 CAV JUDGMENT 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.
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.
(J.B.PARDIWALA, J.) FURTHER ORDER The Registry is directed to place this judgment before His Lordship the Honourable the Chief Justice at the earliest. After the judgment is pronounced, Mr. R.J. Goswamy, the learned counsel appearing for one of the accused persons prays for stay of the operation of this judgment. In view of what has been observed in the judgment, the request is declined.
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