# DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT & ORS

- **Citation:** [2014] 3 S.C.R. 932
- **Court:** Supreme Court of India
- **Decided:** 2014-02-25
- **Case number:** Criminal Appeal No. 92 of 2014
- **Bench:** Surinder Singh Nijjar, A.K.Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dinubhai-boghabhai-solanki-v-state-of-gujarat-ors-29815
- **Pages:** 52

## Headnote

INVEST/GA TION:
c
Transfer of investigation - In the instant case, a social
activist had filed PIL for stopping illegal mining in which, name
of appellant and his nephew emerged as the power behind
illegal mining mafia - They were impteaded as respondents
and served - Next day the social activist was brutally killed -
D Father of activist dissatisfied with the progress of investigation
fifed writ petition seeking transfer of investigation - High Court
initially directed further investigation to be conducted by State
under the supervision of the Special Commissioner of Police,
Crime Branch - On submission of final report, High Court
E finding that even further investigation was not impartial, by
impugned order, transferred the case to CBI - Transfer
challenged by the State - Held: Appellant before the High
Court was none other than the father of the deceased - It was
a cry for justice made by a person whose son was brazenly
murdered - High Court recorded that all the circumstances put
F
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 charge-sheet and further
investigation had not served any purpose - Therefore, the
G investigation with the lapses and lacunae as a/so the unusual
acts of omission and commission did not inspire confidence
- After recording the said observation, it was noticed by High
Court that the investigation was being transferred to CBI to
instill confidence of the general public in the investigation,
H
932
DINUBHAI BOGHABHAI SOLANKI v. STATE OF
933
GUJARAT & ORS.
keeping in mind the seriousness of the case having far A
reaching implications - No interference with the transfer of
investigation to CBI.
Transfer of investigation - Rights of accused -
Opportunity of hearing and impleadment of accused -Held: 8
Fair, unbiased and transparent investigation is a sine quo non
for protecting the accused - It is not necessary to give an
opportunity of hearing to the proposed accused as a matter
of course - If prior notice and an opportunity of hearing have
to be given in every criminal case before taking any action C
against the accused person, it would frustrate the entire
objective of an effective investigation - In the instant case,
there was no obligation for High Court to either hear or to
make appellant a party to the proceedings before directing
that the investigation be conducted by CBI.
Transfer of investigation - Adverse remarks recorded by
High Court while considering transfer of investigation to CBI
- Expunction of - Instant appeal by appellant challenging the
remarks maae by High Court against him in impugned order
D
on the ground that the said remarks would gravely prejudice E
his case at trial and praying for rehearing of writ petition and
expunction of remarks - Held: High Court observed that
investigation all throughout was far from fair, impartial,
independent or prompt - Mere mention of the appellant as the
prime suspect was not a conclusion reached by High Court -
F
No categorical findings were recorded about the involvement
of the appellant in the crime of conspiracy - It was clarified in
the impugned judgment that the observations made were only
for the limited purpose of deciding whether further
investigation was required to be handed over to CBI, and they G
shall not be construed as expression of an opinion on any
particular aspect of the investigation carried out - After
recording the said clarification, it was noticed that the
investigation was being transferred to CBI to instill confidence
of the general public in the investigation, keeping in mind the
H
934
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A seriousness of the case having far reaching implications -
Adverse remarks recorded by High Court are not expunged
- However, trial court is directed to keep in mind that any
observations made by High Court, which may appear to be
adverse

## Text

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A
B
[2014] 3 S.C.R. 932
DINUBHAI BOGHABHAI SOLANKI
v.
STATE OF GUJARAT & ORS.
(Criminal Appeal No. 92 of 2014)
FEBRUARY 25, 2014
[SURINDER SINGH NIJJAR AND A.K.SIKRI, JJ.]
INVEST/GA TION:
c
Transfer of investigation - In the instant case, a social
activist had filed PIL for stopping illegal mining in which, name
of appellant and his nephew emerged as the power behind
illegal mining mafia - They were impteaded as respondents
and served - Next day the social activist was brutally killed -
D Father of activist dissatisfied with the progress of investigation
fifed writ petition seeking transfer of investigation - High Court
initially directed further investigation to be conducted by State
under the supervision of the Special Commissioner of Police,
Crime Branch - On submission of final report, High Court
E finding that even further investigation was not impartial, by
impugned order, transferred the case to CBI - Transfer
challenged by the State - Held: Appellant before the High
Court was none other than the father of the deceased - It was
a cry for justice made by a person whose son was brazenly
murdered - High Court recorded that all the circumstances put
F
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 charge-sheet and further
investigation had not served any purpose - Therefore, the
G investigation with the lapses and lacunae as a/so the unusual
acts of omission and commission did not inspire confidence
- After recording the said observation, it was noticed by High
Court that the investigation was being transferred to CBI to
instill confidence of the general public in the investigation,
H
932
DINUBHAI BOGHABHAI SOLANKI v. STATE OF
933
GUJARAT & ORS.
keeping in mind the seriousness of the case having far A
reaching implications - No interference with the transfer of
investigation to CBI.
Transfer of investigation - Rights of accused -
Opportunity of hearing and impleadment of accused -Held: 8
Fair, unbiased and transparent investigation is a sine quo non
for protecting the accused - It is not necessary to give an
opportunity of hearing to the proposed accused as a matter
of course - If prior notice and an opportunity of hearing have
to be given in every criminal case before taking any action C
against the accused person, it would frustrate the entire
objective of an effective investigation - In the instant case,
there was no obligation for High Court to either hear or to
make appellant a party to the proceedings before directing
that the investigation be conducted by CBI.
Transfer of investigation - Adverse remarks recorded by
High Court while considering transfer of investigation to CBI
- Expunction of - Instant appeal by appellant challenging the
remarks maae by High Court against him in impugned order
D
on the ground that the said remarks would gravely prejudice E
his case at trial and praying for rehearing of writ petition and
expunction of remarks - Held: High Court observed that
investigation all throughout was far from fair, impartial,
independent or prompt - Mere mention of the appellant as the
prime suspect was not a conclusion reached by High Court -
F
No categorical findings were recorded about the involvement
of the appellant in the crime of conspiracy - It was clarified in
the impugned judgment that the observations made were only
for the limited purpose of deciding whether further
investigation was required to be handed over to CBI, and they G
shall not be construed as expression of an opinion on any
particular aspect of the investigation carried out - After
recording the said clarification, it was noticed that the
investigation was being transferred to CBI to instill confidence
of the general public in the investigation, keeping in mind the
H
934
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A seriousness of the case having far reaching implications -
Adverse remarks recorded by High Court are not expunged
- However, trial court is directed to keep in mind that any
observations made by High Court, which may appear to be
adverse to appellant, were confined only to the determination
B
of the issue as to whether the investigation is to be transferred
to CBI.
ADMINISTRATION OF CRIMINAL JUSTICE: Held:
Essence of criminal justice system is to reach the truth - The
C underlying principle is that whilst the guilty must not escape
punishment; no innocent person shall be punished unless the
guilt of the suspect/accused is established in accordance with
law - All suspects/accused are presumed to be innocent till
their guilt is proved beyond reasonable doubt in a trial
conducted according to the procedure prescribed under law.
D
BAIL: Entitlement for - In the instant case, appellant was
a"ested when he appeared before the CBI in response to the
summons - Since then he was in custody - Supplementary
charge-sheet filed by the CBI - After the charge-sheet, the
E
appellant was no longer required for further investigation -
There was no likelihood of the appellant tampering with the
evidence as the copies of all the sensitive statements were
not supplied to the appellant - Keeping in view the fact that
the CBI has submitted the supplementary charge-sheet and
F
that the trial is likely to take a long time, it is deemed
appropriate to enlarge the appellant on bail, subject to
conditions of furnishing personal security.
A social activist filed a PIL against the State of Gujarat
and others seeking direction to stop the illegal mining and
G destruction of biodiversity of natural habitat of Gir Forest.
During the pendency of PIL, name of the appellant and
his nephew emerged as the powers behind the illegal
mining mafia. The appellant and his nephew were
impleaded by the High Court as respondents on 6th July,
H 2010 and an order was served on the appellant on 19th
DINUBHAI BOGHABHAI SOLANKI v. STATE OF
935
GUJARAT & ORS.
July, 2010. On 20th July, 2010, the activist who had filed
A
PIL was brutally killed. The investigation was conducted.
Dissatisfied with the progress of investigation, the
father of the activist, respondent no.6 filed Special
Crimrnal Application before the High Court wherein he
8
sought transfer of the investigation to an independent
investigating agency. The High Court passed interim
order directing further investigation to be conducted by
the State of Gujarat under the supervision of. Special
Commissioner of Police (Crime branch). The report was C
submitted. However, the High Court by impugned order
noted that the investigation by the Gujarat Police
authority was not free from doubt and that to instill
confidence in the public it was appropriate to transfer the
investigation to CBI.
D
In the instant appeals challenging the order of the
High Court, the grievance of the appellant was that the
High Court has made unwarranted remarks against him
which were bound to gravely prejudice his case at the
trial; that he was not even impleaded as party before the
E
High Court and, therefore, the writ petition should be
reheard and decided on merits and the remarks against
him be expunged.
Disposing of the appeals, the Court
F
HELD: 1. In the instant case, the appellant before the
High Court was none other than the father of the
deceased. It was a cry for justice made by a person
whose son has been brazenly murdered. The father of
the deceased had filed the petition on the grounds that G
the State is under the obligation to ensure the rule of law.
It was stated that the rule of law can be maintained only
by fair, impartial and independent investigation by the law
and order enforcement agency, in every reported
incidents of commission of offence. It was emphatically
H
936
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A stated that the investigation into the murder of his son
was not taking place independently and impartially due
to extra-legal and extraneous considerations. He had
prayed before the High Court that his right to equality
before the law guaranteed by Article 14 of the
B Constitution of India was being violated as the appellant
was being protected by the investigating agency
because he is a Member of Parliament, and he belonged
to the political party that was in power in the State. [Para
38] [961-G; 962-A-D]
c
Divine Retreat. Centre v. State of Kera/a (2008) 3 SCC
542: 2008 (4) SCR 701; D. Venkatasubramaniam v. M. K.
Mohan Krishnamachari (2009) 10 SCC 488: 2009 (14) SCR
441; State of Punjab v. Davinder Pal Singh Bhullar & Ors.
2012 Crl L.J. 1001; Ms. Mayawati v. Union of India & Ors.
D (2012) 8 SCC 106: 2012 (7) SCR 33 - held inapplicable.
2. Undoubtedly, the essence of criminal justice
system is to reach the truth. The underlying principle is
that whilst the guilty must not escape punishment; no
E innocent person shall be punished unless the guilt of the
suspect/accused is established in accordance with law.
All suspects/accused are presumed to be innocent till
their guilt is proved beyond reasonable doubt in a trial
conducted according to the procedure prescribed under
F
law. Fair, unbiased and transparent investigation is a sine
quo non for protecting the accused. It is not necessary
to give an opportunity of hearing to the proposed
accused as a matter of course. If prior notice and an
opportunity of hearing have to be given in every criminal
case before taking any action against the accused
G person, it would frustrate the entire objective of an
effective investigation. In the instant case, the appellant
was not even an accused at the time when the impugned
order was passed by the High Court. Finger of suspicion
was pointed at the appellant by independent witnesses
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF
937
GUJARAT & ORS.
as well as by the grieved father of the victim. The High
A
Court had initially directed that the investigation be
carried under the supervision of the Special
Commissioner of Police, Crime Branch. It was only when
the High Court was of the opinion that even further
investigation was no,t impartial, it was transferred to the
B
CBI. There was no obligation for the High Court to either
hear or to inake the appellant.a party to the proceedings
before directing that the investigation be conducted by
the CBI. [Paras 42, 44, 45, 46) [963-E-G; 965-B-C, E-F; 966F-G; 967-E-F]
C
Union of India v. WN.Chadha (1993) Supp. 4 SCC 260:
1993 (2) SCR 997; Central Bureau of Investigation & Anr. v.
Rajesh Gandhi & Anr. (1996) 11 SCC 253; Sri Bhagwan
· Samardha Sreepada Va/labha Venkata Vishwanandh~
Maharaj v. State of A.P. & Ors. (1999) 5 SCC 740: 1999 (3)
D
SCR 870 - relied on.
3. The High Court had come to the prima facie
conclusion that the investigation conducted by the police
was with the motive to give a clear chit to the appellant,
E
inspite of the statements made by the independent
witnesses as well as the allegations made by the father
of the deceased. [Para 47) [967-F-G]
Narender G. Goel v. State of Maharashtra & Anr. (2009)
6 SCC 65: 2009 (8) SCR 1004; Mohd. Anis v. Union of India
F
1994 Supp (1) SCC 145: 1993 (1) Suppl. SCR 263; Bank
of India & Anr. v. K.Mohandas & Ors. (2009) 5 SCC 313:
2009 (5) SCR 118 - relied on.
4. The High Court observed that the investigation all G
throughout was far from fair, impartial, independent or
prompt. The High Court then noticed that according to
the FIR, the deceased was killed at 20.40 hours on
20.7.2010 and the FIR was registered at 22.06 hours.
Although the FIR itself mentioned address of the H
938
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A deceased and his mobjle phone was also found on the
spot, 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 police
personnel. The High Court noticed that these facts would
B clearly strengthen the suspicion of respondent No.6 that
the relatives and acquaintances of the deceased were
deliberately prevented from naming anyone even as a
suspected perpetrator of the crime in the FIR. Again the
High Court, by making a reference to the FIR, has prima
c facie concluded that it seems to have been registered
under the advice and guidance of the higher officers, who
were present at the police station. The High Court also
noticed from the affidavit of Superintendent of Police,
that even during the further investigation, he was re~uired
0 to continuously inform and brief to his supervisory
officer. The High Court also noticed that statements of
father, wife, brothers, mother and friends of the deceased
were recorded. These persons had given specific names
of the suspects, but no arrests were made. In fact, the
investigation did not appear to have made any progress.
E It was only after the order was passed by the High Court
in a PIL on 02.08.2010, transferring the investigation that
arrests began to be made. The High Court then noticed
that efforts were made by the persons, who were
arrested, to make statements to absolve the appellant of
F being involved in the conspiracy to kill the activist. From
this, the High Court concluded that the progress of
investigation clearly indicated that the investigators were
relying more on the statements of the arrested person
than the statements recorded earlier of the relatives and
G acquaintances of the deceased. The High Court then
noticed the contents of case diary in which it was
recorded that on 20.08.2010, the news about the police
being in search of the nephew of the appellant were
leaked in advance and spread through media and
H telecast, even then he could not be located in spite of
DINUBHAI BOGHABHAI SOLANKI v. STATE OF
939
GUJARAT & ORS.
enquiring into various secret sources and informants. A
The High Court also noticed that on 16.8.2010, when the
High Court ordered the transfer of the investigation, one
of the main accused persons was arrested and had
practically dictated in great detail his motive, plan,
execution and sufficiency of resources for arranging the B
elimination of the victim, without ever mentioning the
name of the nephew of the appellant. His statements were
recorded everyday from 18th to 30th August, 2010.
During the course of custodial interrogation, on 19th
August, 2010, he added that he had decided with the c
nephew of the appellant to kill the activist for which the
nephew of the appellant was to provide the money.
Thereafter, the High Court made a very important
observation that although nothing can be treated or held
to be proved at this stage, the sequence of events and 0
the statements clearly indicated that even the name of the
nephew of the appellant was being introduced in a careful
and planned manner with leakage of sensitive information
for the public including others involved in the offence.
Thi.s observation clearly showed that all the observations E
were tentative, prima facie, to adjudge only the issues, as
to whether the State Police had conducted a fair and
unbiased investigation. No opinion was recorded, even
prima facie of the guilt or otherwise of the appellant in the
offence of conspiracy to murder the activist. The
apprehension of the appellant that any of the F
observations made by the High Court would influence
the trial were without any basis. The High Court further
noticed that when the nephew of the appellant was
arrested on 07.09.2010, his statements with a matching
version were recorded everyday from 07.09.2010 to G
20.09.2010 with details of his decision and understanding
with the main accused to kill activist of his own motive
and resources. But not once these accused persons
appeared to have been asked even one question about
the involvement of the appellant. In fact the nephew of the H
940
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A appellant is stated to have clarified that, no one else was
informed about his understanding with the main accused.
The High Court further noticed that statement of appellant
was recorded on 16.9.2010 when he claimed not only
complete innocence but ignorance about even the
B activities of the deceased and the difficulties caused by
him. In fact he urged for independent and deeper probe
of the offence. The High Court then recorded the
conclusion that this line of interrogation substantiated the
submission that the investigating agency was following
C the clues offered by the arrested persons rather than the
other independent information given by the father and
witnesses. Taking into consideration all the said facts, the
High Court concluded that the statements of the appellant
recorded after apparently solving the mystery of the
0
murder clearly appeared to be an empty formality at the
convenience and invitation of the appellant. 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
E 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. Here again, the
conclusion of the High Court was in the context of the
F impartiality of the investigation. The same cannot be
construed as any definite or even a prima facie
conclusion as to the guilt of the appellant. The High Court
thereafter noticed that the first person arrested was not
named by any witnesses in any statement recorded till
G his arrest. The High Court, therefore, stated that 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 16.8.2010 itself after the order
to transfer the investigation. The High Court concluded
H that there was sufficient material to substantiate the
OINUBHAI BOGHABHAI SOLANKI v. STATE OF
941
GUJARAT & ORS.
submission that the State police was controlling the
A
investigation rather thah carrying it out in a fair, impartial
and prompt manner. The High Court also concluded that
the said facts would lend credence to the allegation that
B
the accused persons and the prime suspect had such
influence in the higher echelons of police-power that the
officers of the lower ranks would not dare to displease
them. These observations again were general and were
clearly necessary to state and to support the conclusion
reached by the High Court that the investigation
conducted by the State police was unsatisfactory and c
biased. Again no further conclusion was recorded about
the guilt of any of the suspects, let alone the appellant,
in particular. The High Court concluded that where no
one appears to be an eye witness to firing on the
deceased, not only the persons alleged to have assaulted
0
the deceased, but identity of the persons who would have
strong motive for eliminating the deceased ought to have
been fully or properly investigated. Instead, the
prosecution relied mainly on the persons, who were
already arrested and practically stopped at them in spite
of the order for carrying out further investigation in light
E
of the averments and allegations made in the petition.
The High Court only noticed the facts which tend to show
that the investigation had not been conducted impartially
and fairly. Although, the appellant was mentioned on a
number of occasions, no specific conclusion was
reached that the appellant was responsible for
influencing or controlling the investigation. In fact, the.
finger was pointed only towards the higher echelons of
F
the police, who seemed to have been under the influence
of the accused persons. Mention of the appellant as the
G
prime suspect was not a conclusion reached by the High
Court. The appellant was referred to as the prime suspect
in all the alleg.ations made in the writ petitions and the
statements of the relatives including the statement of the
father of the deceased. Therefore, by recording the gist
H
942
SUPREME COURT REPORTS
(2014] 3 S.C.R.
A of the allegations made, the High Court did not commit
any error of jurisdiction. The High Court also recorded
that since the appellant and his nephew were living
together in a joint family and, therefore, must have
conspired to kill activist. This is not a conclusion that the
B appellant and his the nephew of the appellant must have
conspired. Similarly, the conclusion recorded by the High
Court that the incorrect statements made by
Superintendent of Police regarding past record of the
appellant clearly indicated an attempt at somehow
c shielding the person who was the prime suspect,
according to the statements of the relatives and
associates of the deceased again only alludes to the
statements of the relatives and witnesses. It cannot be
said to be a conclusion reached by the High Court, about
0 the guilt of the appellant. Therefore, the conclusion
cannot be said to be unwarranted. [paras 53, 54] [972-E;
973-B-H; 974-A-B, D-E, F-H; 975-A-H; 976-A-H; 977-A-C,
G-H; 978-A-B, F-H; 979-A-F, H; 980-A-C]
6. Ultimately, the High Court recorded the conclusion
E that all the 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 charge-sheet and further
F 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 charge sheet
G already submitted by the police, as some of the accused
persons were already arrested and shown as accused
persons and even chare is yet to be framed against them.
This conclusion also only recorded the reasons which
persuaded the High Court to transfer the investigation to
H CBI. No categorical findings were recorded about the
DINUBHAI BOGHABHAI SOLANKI v. STATE OF
943
GUJARAT & ORS.
involvement of the appellant in the crime of conspiracy.
A
In fact, the High Court was well aware that the
observations were made only for the limited purpose of
reaching an appropriate conclusion as to whether the
investigation had been co.nducted impartially. The High
Court further clarified that while concluding that the
investigation into murder of the son of the respondent
no.6 was far from fair, independent, bona fide or prompt,
B
it refrained from even remotely suggesting that the
investigating agency should or should not have taken a
particular line of investigation or apprehended any .. c
person, except in accordance with law. It was clarified
that the observations made were only for the limited
purpose of deciding whether further investigation was
required to be _handed ~ver to CBI, and they shall not be
construed as expression of an opinion on any particular
aspect of the investigation carried out"so far. After D
recording the said clarification, it was noticed that the
investigation was being transferred to CBI to instill
confidence of the general public in the investigation,
keeping in mind the seriousness of the case having far
E
reaching implications. None of the adverse remarks
recorded by the High Court are expunged. However, the
trial court is directed to keep in mind that any
observations made by the High Court, which may appear
to be adverse to the appellant, were confined only to the
determination of the issue as to whether the investigation
is to be transferred to CBI. [Paras 55 to 58] [980-C-F, GH; 981-A-F]
F
7. As regards the bail of the appellant, the appellant
was arrested on 5th November, 2013, when he appeared
G
before the CBI in response to the summons. Since then
the petitioner-appellant has been in custody. The
supplementary charge-sheet has been filed by the CBI in
the Court of ACJM, Ahmedabad in January, 2014. After
the charge-sheet being filed, obviously, the petitionerH
944
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A appellant is no longer required for further investigation.
There is ·no likelihood of the petitioner-appellant
tampering with the evidence as the copies of all the
sensitive statements have not been supplied to the
petitioner-appellant. Further, no special treatment can be
s given to the petitioner-appellant simply on the ground that
he is a sitting Member of Parliament. However, keeping
in view the fact that the CBI has submitted the
supplementary charge-sheet and that the trial is likely to
take a long time, it is deemed appropriate to enlarge the
c petitioner-appellant on bail, subject to conditions of
furnishing personal security in the sum of Rs.5 lacs with
two solvent sureties, each of the like amount, to the
satisfaction of the trial court. .The petitioner-appellant
shall appear in Court as and when directed by the court
0 and shall make himself available for any further
investigation/interrogation by the CBI as and when
required. The petitioner-appellant shall not directly or
indirectly make any inducement, threat or promise to any
person acquainted with the facts of the case so as to
dissuade that person from disclosing such facts to the
E court or to the investigating agency or to any police
officer. [paras 60, 61] [982-A-C, E-H; 983-A-B]
Case Law Reference:
F
2008 (4) SCR 701
held inapplicable Para 21
2009 (14) SCR 441
held inapplicable Para 21
2012 Crl L J 1001
held inapplicable Para 21
2012 (7) SCR 33
held inapplicable Para 21
1993 ( 2) SCR 997
relied on
Para 21
G
(1996) 11 sec 2s3
relied on
Para 26
1999 (3) SCR 870
relied on
Para 26
2009 (8) SCR 1004
relied on
Para 26
H
1993 (1) Suppl. SCR 263 relied on
Para 49
DINUBHAI BOGHABHAI SOLANKI v. STATE OF
945
GUJARAT & ORS.
2009 (5) SCR 118
relied on
' Para 50
A
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 492 of 2014.
From the Judgment and Order dated 25.09.2012 of the
High Court of Gujarat at Ahmedabad in SCRLA No. 1925 of
B
2010.
Mukul Rohatgi, V.K. Bali, H.P. Raval, J.S. Attri, Manali
Singhal, Saurabh Kirpal, Sanjay Agarwal, Alpesh Kogje, Aditya
Soni, Anando Mukherjee, (for Nikhil Jain) Jesal (Hemantika
Wahi), Kamini Jaiswal, Abhimanue Shrestha, Krishna Tiwari,
C
T.A. Khan, Ranjana Narayan (for B.V. Balaram Das) for the
appearing parties.
The Judgment of the Court was delivered by
SURINOER SINGH NIJJAR, J. 1. This special leave
D
petition impugns the judgment and order dated 25th
September, 2012 passed by the Gujarat High Court at
Ahmedabad in Special Criminal Application No.1925 of 2010.
By the aforesaid judgment, the High Court has directed that the
investigation into the death of Amit Jethwa (hereinafter referred
E
to as 'Jethwa'), a Right to Information activist be investigated
by the CBI authorities and further directing that the proceedings
pursuant to the charge sheet submitted by the Gujarat Police
shall remain stayed.
2. The facts leading to the filing of the special leave
F
petition out of which the present criminal appeal arises are as
under:
Jethwa had filed a Public Interest Litigation, SCA No.7690
of 2010, against the State of Gujarat and others with the
following prayer:
·
G
''The appellant therefore prays that your Lordship may be
pleased to:
a.
Admit this petition.
H
946
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A
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."
B
3. In the aforesaid writ petition, Jethwa had given details
of various activities of certain firms and individuals who were
indulging in illegal mining and destroying the biodiversity of
natural habitat of Gir forest in Gujarat. This, according to
Jethwa, was having an adverse effect on the natural habitat of
C the Asiatic Lions. He was particularly concerned with illegal
mining within 5 kms radius from the boundary of Gir Sanctuary
Area. More than 50 mines in the names of different persons
were mentioned in the writ petition wherein illegal mining was
alleged. Enquiry into the allegations made by Jethwa was in
D progress in the aforesaid writ petition, when he was brutally
murdered.
4. Jethwa was the President of the Gir Nature Youth Club
at Khamba, Gujarat. He had been active in fighting against·
E 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,
F 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
G 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
H campaigned against shifting of lions to the Kuno Wildlife
DINUBHAI BOGHABHAI SOLANKI v. STATE OF
947
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
Sanctuary in Madhya Pradesh. According to him, his efforts
A
were often blocked by forest officials by charging him with
offences such as photographing a dead lion and trespassing.
In 2007, Jethwa contested the State Assembly elections
against the appellant herein, but lost. In 2008, Jethwa was very
actively involved in spreading awareness about effectiveness
B
of the Right to Information Act for addressing grievances, and
conducted workshops on the procedure to file requests under
RTI, to prevent corrupt practices and other mal-administration.
In 2010, Jethwa had filed a Public Interest Litigation (writ
petition) questioning the inaction of State Government over the c
appointment of Lokayukta. The High Court directed ,,the
Government to appoint Lokayukta. He had also spearheaded
the campaign against rising case pendency in the Gujarat
Information Commission due to lack of commissioners. It was
on his petition that the High Court gave direction to the State
0
Government to complete the appointments within a stipulated
time. He again came to the rescue of RTI applicants by filing a
writ petition in the High Court and made the Government accept
Indian Postal Order as one of the modes of payment to deposit
fees while filing the Right to Information applications.
E
5. We have narrated these facts just to indicate that Jethwa
was a well known 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 usual environmental
F
issues.
6. During the pendency of the ·public interest litigation filed
by Jethwa, the name of the appellant and his nephew emerged
as the powers behind the illegal mining mafia. Therefore, by
G
order dated 6th July, 2010, the appellant and his nephew
Pratap Bhai Solanki were impleaded by the High Court as
respondents. The order dated 6th July, 2010 was served on the
appellant on 19th July, 2010.
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948
SUPREME COURT REPORTS
[2014) 3 S.C.R.
A
7. It is the allegation of the father of Jethwa (hereinafter
referred to as 'Respondent No.6') that the appellant was so
incensed on being made a party in the Public Interest Litigation
filed by Jethwa and the information that had surfaced during the
course of hearing of that writ petition that he contracted/
B conspired with some unknown persons to eliminate Jethwa. In
pursuance of this conspiracy, Jethwa was shot dead on the very
next day, i.e. 20th July, 2010.
8. According to the appellant, on the same date, i.e 20th
July, 2010, the electronic media began broadcasting
C allegations of the Respondent No. 6 and some other interested
parties that the appellant was behind the killing of Jethwa.
Incidentally, it must be noticed at this stage that according to
the version of Respondent No.6, the murder took place outside
the Gujarat High Court whilst Jethwa was leaving the chambers
D of his lawyer at 8.30 at night. In fact, the Press Statement was
given on 21st July, 2010 by Dhirsinh Barad, a rival Congress
MLA that the appellant might be involved in the murder.
Subsequently, when the statement of this MLA was recorded
in the High Court on 26th February, 2012, wherein he has
E stated that on 2oth July, 2010 he had communicated to Shri
B.M.Mangukia, Advocate who incidentally was also a Secretary
of Gujarat Congress, that as per his belief the appellant was
involved in the murder of Jethwa. The investigation was
conducted in accordance with the procedure prescribed in the
F Criminal Procedure Code.
9. It appears that the Respondent No 6 was not satisfied
and he filed Special Criminal Application No.1925 of 2010
before the High Court. In this petition, Respondent No.6 sought
G transfer of the investigation in connection with FIR No. I-CR
No.163/2010 dated 20th July, 2010 registered at Sola Police
Station for commission of offences punishable under Sections
302, 114 of IPC read with Section 25(1) of Arms Act, to an
independent investigating agency, preferably CBI or Special
Investigation Team comprising IPS Officers from other State
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF
949
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
cadre as well. On 19th October, 2011, the Gujarat High Court
A
passed the interim order directing further investigation to be
conducted by the State of Gujarat under the supervision of
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. In passing the
B
aforesaid order, it is pointed out by the appellant herein that,
no adverse remarks with any pre-drawn conclusions were
made against him.
10. In pursuance of the aforesaid order, the investigation
C
was handed over, on 11th November, 2011, to another officer,
Shri Vatsa, Superintendent of Police. The final report was
submitted on 16th March, 2012 under Section 173(8) Cr.P.C.
It was pointed out by the appellant that nothing beyond ~re
suspicion had come on the record against the appellant so as
to make him accused of any conspiracy to assassinate the
D
deceased Jethwa. On 19th March, 2012, the final report of
further investigation was filed before the High Court on behalf
of the State Government. The appellant claims that in spite of
extensive investigation, no circumstantial evidence pointing out
any involvement of the appellant was gathered, despite the
E
grave suspicion of the relatives of Jethwa and certain political
rivals. However, due to the pressure exerted by the relatives of
the deceased and certain political rivals, a third charge-sheet
was filed in the FIR.
11. In the order impugned before us, the High Court upon
consideration of the entire matter has come to the conclusion
that investigation conducted by the Gujarat Police authority is
not free from doubt and that to instill confidence in the public, it
would be appropriate to transfer the investigation to CBI.
12. The present SLP was filed in this Court on 8th October,
2012. Notice was issued in the SLP on 15th October, 2012.
The investigation by the CBI was not stayed. The State of
Gujarat had filed SLP (Crl.) N0.8292 of 2012 also challenging
F
G
the transfer of the investigation to CBI. This/ SLP was filed on
H
950
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A 15th October, 2012. We may also notice here that Narendra
Modi, who was then holding the portfolio of Home Ministry in
Gujarat as well as being the Chief Minister, was also impleaded
as appellant No.2 in SLP (Crl.) 8292 of 2012. However,
subsequently, he was deleted from the array of parties, by order
B of this Court dated 9th November, 2012.
13. Leave granted.
14. Mr. Rohatgi, learned senior counsel appearing for the
appellant after making extensive references to the relevant
I C parts of the impugned judgment has submitted that the High.
Court has made unwarranted remarks against the appellant
which are bound to gravely prejudice his case at the trial. These
remarks have been made in the absence of the appellant. The
High Court did not make him a party; and has given an ex-parte
D judgment against the appellant. It is per se illegal and, therefore,
deserves to be set aside. He submits that the matter has to
be remanded back to the High Court with the direction that the
appellant be made a party in Writ Petition SCA No.1925 of
2010. Thereafter the writ petition be re-heard and decided on
E merits in accordance with law.
15. Mr. Rohatgi then submitted that the appellant had been
summoned to appear as a witness before the CBI.
Apprehending that the appellant will be arrested as soon as he
F appears before the CBI in response to the summons, Criminal
Misc. Petition No.22987 of 2013 was filed by him seeking
direction from this Court that the appellant will not be arrested
in case he appears before the CBI. The actual prayer made in
the Application was that this Court be pleased to "grant stay
of any coercive action against the appellant prejudicing his life
G and personal liberty, pursuant to the impugned ex part judgment
dated 25.09.2012 passed by the Gujarat High Court in SCA
1925 of 2010 wherein CBI was inter alia directed to investigate
and file report within 6 months." This Court did not accept the
prayer made by the appellant. As apprehended by the
H appellant, he was immediately arrested, when he appeared
DINUBHAI BOGHABHAI SOLANKI v. STATE OF
951
GUJARAT & ORS. [SURINDER SINGH NIJJAR. J.]
before the CBI, in response to the summons to join the
A
investigation.
16. This action of the CBI, according to Mr. Rohatgi, was
wholly illegal. The appellant had been cooperating with the
investigation throughout. The arrest of the appellant was
B
politically motivated.
17. On 17th April, 2013, Status Report of the investigation
by the CBI was produced before this Court by Mr. Sidharth
Luthra, learned Additional Solicitor General. After perusal of the
report, the court directed the same to be re-sealed and kept
C
with the record. The matter was adjourned from time to time to
enable the CBI to complete the investigation. Since his arrest,
the appellant was initially remanded to police custody.
Subsequently, however, he was placed in judicial custody. The
appellant continues to be in jail till date. On 19th November,
D
2013 when the matter came up for further consideration, a
submission was made on behalf of the CBI that "although the
appellant is now not required for custodial interrogation, judicial
custody needs to be continued as the investigation is still not
complete." A request was made that the matter be adjourned
E
for at least six weeks to enable the CBI to complete the
investigation in relation to the appellant. Since the appellant had
been in custody for a long time, it was prayed that he should
be released from custody. It was pointed out that the appellant
was required to perform his official duties as an elected
F
member of the Parliament. However, the request of the appellant
was rejected and CBI was granted some more time to
complete the investigation. It was made clear by this Court that
the aforesaid direction would not preclude the CBI to seek
custodial interrogation of the appellant, as and when required.
G
Thereafter, the matter was adjourned from time to time.
18. Mr. Rohatgi then submitted that in breach of the
directions issued by this Court on 17th April, 2013, the CBI has
filed a supplementary charge sheet in January, 2014, before
the ACJM, Ahmedabad, instead of placing the report before
H
952
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A this Court in a sealed cover. Relying on these facts, Mr.