# DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT & ORS

- **Citation:** [2017] 11 S.C.R. 979
- **Court:** Supreme Court of India
- **Decided:** 2017-10-30
- **Case number:** Criminal Appeal No.492 of2014
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dinubhai-boghabhai-solanki-v-state-of-gujarat-ors-31499
- **Pages:** 40

## Headnote

A
B
Administration of criminal justice: Order of retrial -
Maintainability of - Murder of an activist who had been co111plaining
against the illegal mining in and around Gir Forest Sanctuary - · C
The names of appellant and his nephew appeared in the said murder
- The complainant, father of the activis't dissatisfied with the
investigation, approached High Court for directions for proper
investigation - High Court transferred the case to CBI -
When the
trial took place, out of 195 witnesses examined, as many as 105
witnesses· turned hostile - Complainant approached High Court D
seeking de novo trial - By impugned order, High Court directed de
novo trial of the case in exercise of writ jurisdiction under Art.226
on the ground that all the important witnesses including eyewitnesses resiled from _their statements made before the police and
various complaints were made alleging threats being administered E
by the main accused-appellant as well as his accomplice - On
appeal, held: High Court was right in holding that the instant case
was one of those exceptional cases where there was possibility of
witnesses getting hostile because of inducement or threats - Thus,
. it is necessary to ensure that trial is conducted fairly where witnesses
are able to depose truthfully and fearlessly - However, examination
F
of all the witnesses once again in de novo trial is not appropriate in
the circumstances of this case - In the interest of fair trial, at least
crucial witnesses need to be examined again - The CBI stated that
apart from 8 eye-witnesses, 18 more witnesses need to be necessarily
examined - Out of those, 15 persons are witnesses for circumstantial G
evidence and 3 are panch witnesses relating to various pane/mamas
- The CBI was categorical that when all 8 eye-witnesses are examined
afresh along with other 18 witnesses, it would subserve the purpose
for which trial is reordered - Thus, 26 witnesses should be reexamined - In order to ensure that there is a fair trial in literal
sense of the term, at least till the time 8 eye-witnesses are re-examined,
H
979
980
SUPREME COURT REPORTS
[2017] 11 S.C.R.
A ·the appellant should remain in confinement and he be released
thereafter with certain conditions, pending remaining trial -
Constitution of India - Art.226.
Administration of criminal justice: Victim-centric approach -
The basic. aim of any good legal system is to do justice, which is to
B ensure that injustice is also not meted out to any citizen - This calls
for balancing the interests of accused as well as viCtims, which in
turn depends on fair trial.
Code of Criminal Procedure, 1973: s.386 - Nonnally a retrial
has to be ordered by the Appellate Court while dealing with the
C
validity and correctness of the judgment of the trial court as this
power is expressly conferred upon the Appellate Court by s.386 of
the Cr.PC. - However, in exceptional circumstances, such a power
can be exercised by the High Court under Art.226 or by Supreme
Court under Art.32 of the Constitution of India.
D
Strictures: Adverse remarks against the Presiding Officer -
Whether High Court is justified in passing strictures against the
Presiding Officer of the trial court - Held: No fault can be formed
about the general observations of the High Court about the role of
the trial court judge who is not supposed to be a mute spectator
when he finds that witnesses after witnesses are turning hostile -
E At the same time, condemnation of the Presiding Officer and going
to the extent of damning him, albeit, in an oblique manner, may not
be justified in the facts of this case - No doubt, it was expected of
the Presiding Judge to play more active and positive role - However,
if error is committed on that front, it is also not appropriate to arrive
p
at other extreme conclusions against that Presiding Officer in the
absence of any cogent evidence against him - The said Presiding
Officer is to retire within a couple of months, after rendering long
service of more than 30

## Text

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[2017] 11 S.C.R. 979
DINUBHAI BOGHABHAI SOLANKI
v.
STATE OF GUJARAT & ORS.
(Criminal Appeal No.492 of2014)
OCTOBER 30, 2017
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
A
B
Administration of criminal justice: Order of retrial -
Maintainability of - Murder of an activist who had been co111plaining
against the illegal mining in and around Gir Forest Sanctuary - · C
The names of appellant and his nephew appeared in the said murder
- The complainant, father of the activis't dissatisfied with the
investigation, approached High Court for directions for proper
investigation - High Court transferred the case to CBI -
When the
trial took place, out of 195 witnesses examined, as many as 105
witnesses· turned hostile - Complainant approached High Court D
seeking de novo trial - By impugned order, High Court directed de
novo trial of the case in exercise of writ jurisdiction under Art.226
on the ground that all the important witnesses including eyewitnesses resiled from _their statements made before the police and
various complaints were made alleging threats being administered E
by the main accused-appellant as well as his accomplice - On
appeal, held: High Court was right in holding that the instant case
was one of those exceptional cases where there was possibility of
witnesses getting hostile because of inducement or threats - Thus,
. it is necessary to ensure that trial is conducted fairly where witnesses
are able to depose truthfully and fearlessly - However, examination
F
of all the witnesses once again in de novo trial is not appropriate in
the circumstances of this case - In the interest of fair trial, at least
crucial witnesses need to be examined again - The CBI stated that
apart from 8 eye-witnesses, 18 more witnesses need to be necessarily
examined - Out of those, 15 persons are witnesses for circumstantial G
evidence and 3 are panch witnesses relating to various pane/mamas
- The CBI was categorical that when all 8 eye-witnesses are examined
afresh along with other 18 witnesses, it would subserve the purpose
for which trial is reordered - Thus, 26 witnesses should be reexamined - In order to ensure that there is a fair trial in literal
sense of the term, at least till the time 8 eye-witnesses are re-examined,
H
979
980
SUPREME COURT REPORTS
[2017] 11 S.C.R.
A ·the appellant should remain in confinement and he be released
thereafter with certain conditions, pending remaining trial -
Constitution of India - Art.226.
Administration of criminal justice: Victim-centric approach -
The basic. aim of any good legal system is to do justice, which is to
B ensure that injustice is also not meted out to any citizen - This calls
for balancing the interests of accused as well as viCtims, which in
turn depends on fair trial.
Code of Criminal Procedure, 1973: s.386 - Nonnally a retrial
has to be ordered by the Appellate Court while dealing with the
C
validity and correctness of the judgment of the trial court as this
power is expressly conferred upon the Appellate Court by s.386 of
the Cr.PC. - However, in exceptional circumstances, such a power
can be exercised by the High Court under Art.226 or by Supreme
Court under Art.32 of the Constitution of India.
D
Strictures: Adverse remarks against the Presiding Officer -
Whether High Court is justified in passing strictures against the
Presiding Officer of the trial court - Held: No fault can be formed
about the general observations of the High Court about the role of
the trial court judge who is not supposed to be a mute spectator
when he finds that witnesses after witnesses are turning hostile -
E At the same time, condemnation of the Presiding Officer and going
to the extent of damning him, albeit, in an oblique manner, may not
be justified in the facts of this case - No doubt, it was expected of
the Presiding Judge to play more active and positive role - However,
if error is committed on that front, it is also not appropriate to arrive
p
at other extreme conclusions against that Presiding Officer in the
absence of any cogent evidence against him - The said Presiding
Officer is to retire within a couple of months, after rendering long
service of more than 30 years - The direction to take up the matter
against him on administrative side is set aside.
G
Bail: Cancellation of - Application by the complainant for
cancellation of bail on the ground that the appellant had been
threatening the witnesses, the complainant and his family members
- Bail granted to the appellant cancelled and direction to take him
into custody and remain in custody during the period of reexamination of 8 eye-witnesses - Once their depositions in the form
H of examination-in-chief and cross-examination are recorded, the
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT
981
& ORS.
appellant shall be released on bail again on the same terms and A
conditions on which he was granted bail earlier - After the appellant
comes out on bail, there shall be an qdditional condition, namely,
till the recording and completion of the statements of other witnesses,
. he shall not enter the State of Gujarat.
Disposing of the appeals, the Court
HELD: 1.1 Normally such a retrial has'to be ordered by
the Appellate Court while dealing with the validity and correctness
of the judgment of the trial 'court as this power is expressly
. conferred upon the Appellate Court by Section 386 of the Cr.P.C.
B
However, in exceptional circumstances, such a power can be c
exercised by the High Court under Article 226 or by this Court
under Article 32 of the Constitution of India. There are no
shackles to the powers of the Constitutional Court under these
provisions, except self-imposed restrictions laid down by. Courts
themselves. But for that, these powers are plenary in nature
meant to do complete justice and to inhibit travesty of justice. D
Therefore, the High Court was right in holding that the p'reserit
case was one of those exceptional cases where possibility of
witnesses getting hostile because of inducement or threats cannot
be ruled out. However, it is not suggested· that the appellant and
his nephew are the persons responsible for the murder. That . E
charge which is levelled against them ·and other accused persons
has to be proved in the trial by cogent evidence. No doubt,.
standard of proof that is required in such criminal cases is that
the guilt has to be proved beyond reasonable doubt. However, at
the same time, it is also necessary to ensure that trial is conducted
fairly where witnesses are able to depose truthfully and fearlessly.
Old adage judicial doctrine, which is the bedrock of criminal
jurisprudence, still holds good, viz., the basic assumption that an
accused is innocent till the guilt is proved by cogent evidence.
F
At the same time, victim is also an importapt~~akeholder in the
criminal justice and welfare policies. It is ''.ior~this reason that G
"victim justice" has become equally important,' ~amely, to convict
the person responsible for a crime. This not only ensures justice
to the victim, but to the society at large as well. [Paras 30, 31, 32]
[1006-B-H; 1007-A-B]
H
J
982
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017) 1 l S.C.R.
1.2 There is a discernible paradigm shift in the criminal
justice system in India which keeps in mind the interests of
victims as well. Victim oriented policies are introduced giving
better role to the victims of crime in criminal trials. It has led to
adopting two pronged strategy. On the one hand, law now
recognises, with the insertion of necessary statutory provisions,
expanding role of victim in the procedural justice. On the other
hand, substantive justice is also done to these victims by putting
an obligation on the State (and even the culprit of crime) by
providing adequate compensation to the victims. The result is
that private parties are now able to assert "their claim for fair
trial and, thus, an effective 'say' in criminal prosecution, not
merely as a 'witness' but also as one impacted". That apart, it is
in the larger interest of the society that actual perpetrator of the
crime gets convicted and is suitably punished. Those persons
who have committed the crime, if allowed to go unpunished, this
also leads to weakening of the criminal justice system and the
socief:y starts losing faith therein. Therefore, the first part of the
celebrated dictum "ten criminals may go unpunished but one
innocent should not be convicted" has not to be taken routinely.
No doubt, latter part of the aforesaid phrase, i.e., "innocent person
should not be convicted" remains still valid. However, that does
not mean that in the process "ten persons may go unpunished"
and law becomes a mute spectator to this scenario, showing its
helplessness. In order to ensure that criminal justice system is
vibrant and effective, perpetrators of the crime should not go
unpunished and all efforts are to be made to plug the loopholes
which may give rise to the aforesaid situation. [Paras 33, 34]
[1007-F-G; 1008-A-B]
2. While judging as to whether a particular accused is guilty
of an offence or not, emotions have no role to play. Whereas,
victims, or family of victims, or witnesses, may become emotive
in their testimonies, in a given case, as far as the Court is
G concerned, it has to evaluate the evidence which comes before it
dispassionately and objectively. At the same time, it is also a fact
that emotion pervades the law in certain respects. Criminal trials
are not allusive to the fact that many a times crimes are committed
in the 'heat of passion' or even categorised as 'hate crimes'.
H Emotions like anger, compassion, mercy, vengeance, hatred get
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT
983
&ORS.
entries in criminal trials. However, insofar as the Judge is A
conce.rned, most of these emotions may become relevant only at
the stage of punishment or sentencing, once the guilt is established
by credible evidence, evaluated objectively by the Court. The
· aforesaid factors, then, become either mitigating/extenuating
circumstances or aggravating circumstances. The manner in which
B
the murder of the victim-deceased activist is committed may be
cruel or ruthless. However, in the first instance it has to be
examined as to whether the accused persons are responsible for
the said murder. or they (or some of them) are innocent. [Para
36] [1009-A-E]
3. The victim had filed a Public Interest Litigation (PIL) in
C
the High Court against illegal mining within 5 kms. radius from
the boundary of the Gir Sanctuary. In that petition, he had pleaded
for protection of environment generally and the biodiversity of
Gir Forest, in particular. The appellant and his nephew were got
impleaded in the said PIL whose names emerged during the D
pendency of that petition. After the murder of the said activist,.
the case was registered but the investigation was lackadaisical.
The complainant was forced to approach the High Court to seek
necessary directions for proper investigation. The High Court
was compelled to intervene and it transferred the investigati<?n
E
to an independent investigating agency, i.e., CBI. It was only
thereafter that investigation progressed and chargesheets were
filed. Soon after the appellant was released on bail, application
for cancellation of bail was filed by the complainant with the
allegations that the. appellant was extending threats to the
complainant, his family members as well as witnesses. Even some
witnesses complained to this effect. What is revealing that this
application was supported by the CBI affirming the stand of the
complainant to the effect that witnesses are threatened. [Paras
37, 38] [1009-G-H; 1010-C-D]
F
4. Trial is expedited on the directions of the Court and G
witnesses start turning hostile. It is difficult to say, at least, prima
facie, that in the given scenario, the CBI, during investigation,
would have compelled the witnesses to give statements against
the accused persons. In any case, that is also a matter to be
finally tested at the time of trial. However, it is stated that
H
i
984
SUPREME. COURT REPORTS
[2017) 11 S.C.R.
A requirement of a fair trial has to be fulfilled. When the trial took
place, as many as 105 witnesses turn hostile, out of 195 witnesses
examined, is so eloquent that it does not need much effort to
fathom into the reasons there for. However, when the aforesaid
facts are considered cumulatively, it compels to take a view that
B
c
in the interest of fair trial, at least crucial witnesses need to be
examined again. [Para 39] [1010-E-F]
5. (i) Whether it was a case where entire de novo trial is
necessitated?
(ii) Whether the High Court is justified in passing
strictures against the Presiding Officer of the trial court?
5.1 Insofar as first aspect is concerned, it transpires that
the CBI had stated before the High Court that de novo trial may
not be necessary and the purpose would be served by recalling
46 witnesses, out of which 8 witnesses are cited as eye-witnesses.
It is true that the examination of all the witnesses once again in
de tiovo trial may not be appropriate in the circumst;mces of this
D case. On the order passed b)' this Court for conducting day to
day trial, the trial court could record the deposition of 195
witnesses over a period of one year. Obviously, in the process of
giving priority to this case by fixing it for evidence, practically on
every working day, same would have happened at the cost of
E
F
adjourning many other cases. Directing a trial court to spend
this kind of time once again is a tall order and the same purpose
which is sought to be achieved by the High Court could be served
by re-examining only those witnesses which are absolutely
necessary. After all, out of 195 witnesses, if 105 witnesses have
been declared hostile, 90 other witnesses have been examined
and cross-examined and their deposition is not required to be
recorded again. Further, among them, there would be many
officials/formal witnesses as well. Likewise, some of the witnesses
though turned hostile, their testimony may not have much bearing.
The CBI stated that apart from 8 eye-witnesses, 18 more
G witnesses need to be necessarily examined. Out of those, 15
persons are witnesses for circumstantial evidence and 3 are panch
witnesses relating to various panchnamas. The CBI was
categorical that when all 8 eye-witnesses are examined afresh
along with other 18 witnesses as aforesaid, it would subserve the
purpose for which trial is reordered. [Paras 40, 41] [1010-A-F;
H 1010-G-H]
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT
985
& ORS.
5.2 As regards the second aspect of remarks against the A
Judge, no fault can be formed about the general observations of
the High Court about the role of the trial court judge who is not
supposed to be a mute spectator when he finds that witnesses
after witnesses are turning hostile.
At the same time,
condemnation of the Presiding Officer and going to the extent of B
damning him, albeit, in an oblique manner, may not be justified in
the facts of this case. No doubt, it was expected of the Presiding
Judge to play more active and positive role. However, if error is
committed on that front, it is also not appropriate to arrive at
other extreme conclusions against that Presiding Officer in the
absence of any cogent evidence against him. The said Presiding C
Officer is at the verge of retirement and is going to retire within
a couple of months, after rendering long service of more than 30
years. This Court has time and again stated that the High Court
should not lightly pass strictures against· the judges in the
subordinate judiciary. The direction to take up the matter against D
him on administrative side dues not seem to be appropriate. The
direction of the High Court is modified in respect of two aspects.
In' the first instance, instead of entire de novo trial, only 26
witnesses would be examined afresh as per the list furnished by
the CBI. Secondly, direction to look into the matter against the
Presiding Judge on administrative side of the High Court is set
E
aside. [Paras 42-45) [1011-H; 1012-A-B; 1013-A-F]
Awani Kumar Upadhyay v. High Court of Judicature of
Allahabad and Others (Z013) 12 SCC 392 : [2013] 3
SCR 416 - relied on.
6. As regards the application filed by the complainant for
F
cancellation of bail on the ground that the appellant had been
threatening the witnesses; threats have been e.xtended to the
complainant and his family members as well for whose protection
CBI had written to the DGP, Gujarat and it is also stated that
apprehension of the complainant expressed earlier which can be
G
discerned from the events that have taken place, coupled with
that, a very pertinent and significant factor that even CBI has
affirmed the said plea of the complainant with categ~rical assertion
that the witnesses are threatened by the appellant, prima facie
case for cancellation of bail has been made out. [Para 46) [1013G-H; 1014-A-B]
H
986
SUPREME COURT REPORTS
[2017) ll S.C.R.
A
State of Bihar v. Rajballav Prasad Alias Rajballav
Prasad Yadav Alias Rajballabh (2017) 2 SCC 178 :
[2016) 9 SCR 652 ; Masroor v. State of Uttar Pradesh
and Another (2009) 14 SCC 286 : [2009) 6 SCR 1030
- relied on.
B
7. In order to ensure that there is a fair trial in literal sense
of the term, at least till the time eight eye-witnesses are reexamined, the appellant should remain in confinement and he be
released thereafter. with certain conditions, pending remaining
trial. Bail granted to the appellant stood cancelled for the time
being. The trial court shall summon 26 witnesses who are to be
C examined afresh. In the first instance, 8 eye-witnesses shall be
summoned and examined on day to day basis. Once their
depositions in the form of examination-in-chief and crossexamination are recorded, the appellant shall be released on bail
again on the same terms and conditions on which he was granted
D bail earlier by this Court. After the appellant comes out on bail,
there shall be an additional condition, namely, till the recording
and completion of the statements of other witnesses, he shall not
enter the State of Gujarat. [Para 48) [1017-B-D]
E
F
G
H
Dinubhai Boghabhai Solanki v. State of Gujarat
(2014) 4 SCC 626 : [2014) 3 SCR 932 ; State of
Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC
601 : [2003) 3 SCR 244 ; Zahira Habibulla H. Sheikh
v. State of Gujarat (2004) 4 SCC 158 : [2004) 3 SCR
1050 ; Asha Ranjan v. State of Bihar (2017) 4 SCC
397 ; Ajay Singh and another v. State of Chhattisgarh,
(2017) 3 SCC 330 : [2017) 1 SCR 286 ; Swaransingh
v. State of Punjab AIR 2000 SC 2017 : [2000) 3 SCR
572; Javed Alam v. State of Chhattisgarh & Am: (2009)
6 SCC 450 : [2009] 8 SCR 398 ; Ramesh and others v.
State of Hi:iryana (2017) 1 SCC 529 : [2016) 8 SCR
936 ; Ayodhya Dube v. Ram Sumer Singh (1981) Supp.
SCC 83 ; K. Chinnaswamy Reddy v. State of Andhra
Pradesh AIR 1962 SC 1788 : [1963) SCR 412 ; Rudul
Sah v. State of Bihar (1983) 4 SCC 141 : [1983] 3 SCR
508; Delhi Domestic Working Womens Forum v. Union
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT
&ORS.
of India (1995) 1 SCC 14 : [1994] 4 Suppl. SCR 528 ;
D.K. Basu v. State of West Bengal (1997) 1 SCC 416 :
[1996] 10 Suppl. SCR 284 ; Suresh & Anr. v. State of
Haryana (2015) 2 SCC 227 ; Amar Pal Singh v. State
of Uttar Pradesh and Another (2012) 6 SCC 491 :
[2012] 5 SCR 1154 - referred to.
Case Law Reference
[2014] 3 SCR 932
referred to
Para2
[2003] 3 SCR 244
referred to
Para 14
[2004] 3 SCR 1050
referred to
Para 14
(2011) 4 sec 397
referred to
Para 14
[2017] 1 SCR 286
referred to
Para 14
[2000] 3 SCR -572
referred to
Para 17
[2009] 8 SCR 398
referred to
Para 17
[2016] 8 SCR 936
referred to
Para 21
(1981) Supp. sec 83
referred to
Para 24
[1963] SCR 412
referred to
Para 24
[1983] 3 SCR 508
referred to
Para 32
[1994] 4 Suppl. SCR 528
referred to
Para 32
[1996] 10 Suppl. SCR 284 referred to
Para 32
(2015) 2 sec 221
referred to
Para 32
[2013] 3 SCR 416
relied on
Para 43
[2012] 5 SCR 1154
relied on
Para 43
[2016] 9 SCR 652
relied on
Para 46
[2009] 6 SCR1030
referred to
Para 47
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 492 of2014.
987
A
B
c
D
E
F
G
H
988
SUPREME COURT REPORTS
[2017] 11 S.C.R.
A
From the Judgment and Order dated 25 .09 .2012 of the High Court
B
of Gujarat at Ahmedabad in Special Criminal Application No. 1925 of
2010.
WITH
CRL. A. Nos. 1854, 1855, 1856 and 1857 of 2017.
Mukul Rohatgi, S.V. Raju, N.D. Nanavati, S. Prasad, Sr. Advs,
Mahesh Agrawal, Ms. Neeha Nagpal, Shashav Pandit, Niral Mehta,
Ms. Devanshi Singh, Ms. Aashtha Mehta, E.C. Agrawala, Santosh
Krishnan, Rudreshwar Singh, Gautam Singh, Ms. Isha Singh, Ms. Snehil
Sonam, Aditiya Vikram Singh, Kaushik Poddar, Nikhil Nayyar, N. Sai
C Vinod, Dhananjay Baijal, Ms. Smriti Shah, Divyanshu Rai, Advs for the
Appellant.
A.N.S. Nadkarni, ASG, Ms. Geeta Luthra, Anand Grover,
Sr. Advs, Ms. Rukhmini Bobde, Mukul Singh, P.K. Dey, Ujjwal Jain,
Anshul Duggal, Pranav Malhotra, Mukesh Kumar Maroria, Prashant
D Bhushan, Ms. Kamini Jaiswal, Rohit Kumar Singh, Abhimanue Shrestha,
Ms. Rani Mishra, Jatinder Pal Singh, Ms. Shruti Dutt, Ms. Hemantika
Wahi, Ms. Jesal Wahi, Ms. Puja Singh, Ms. Mamta Singh, Roh it Kumar
Singh, Ad vs for the Respondent.
E
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. Leave granted in SLP(Criminal) No. 4965 of
2017, SLP(Criminal) No. 5086 of2017, SLP(Criminal) No. 5309 of2017 .
and SLP(Criminal) No. 5321 of2017.
2. One, Amit Jethwa, stated to be an activist, who was complaining
F against the illegal mining in and around Gir Forest Sanctuary, was
murdered. FIR being I-C.R. No. 163 of2010 was registered on July 20,
2010 at Sola Police Station under Sections 302 and 114 oflndian Penal
Code, 1860 (IPC) read with Section 25(1) of Arms Act, 1959. In this
FIR, amongst others, Dinubhai Boghabhai Solanki (for short 'Mr. Solanki')
and his nephew were also implicated. As per the father of Amit Jethwa
G (who was the complainant), State's Police showed slackness in
investigating the said case. He approached the High Court for transfer
of investigation and vide order dated September 25, 2012, his petition
was allowed and investigation w~s transferred to CBI. On transfer,
CBI registered RC.ll(S)/2012 SCU.V/SC.II/CBI and undertook the
investigation. The aforesaid order dated September 25, 2012 passed by
H
)
DINl[BHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT
989
., -
& ORS. [A. K. SIKRI, J.]
the High Court was challenged by Mr. Solanki as well as State of Gujarat
A
by filing special leave petitions in this Court. In the petition filed by Mr.
Solanki, he had prayed for stay of operation of the judgment and order
dated September 25, 2012. This miscellaneous application was dismissed
and CBI was given liberty to complete the investigation. After the
dismissal of his application, Mr. Solanki was arrested on November 5,
B
2013. Status report of the investigation was submitted by the CBI in this
Court and after completion of the investigation, a supplementary
chargesheet under Section 302 read with Section 120B IPC was filed
before the concerned Court in January, 2014. In the chargesheet, Mr.
Solanki has been arrayed as one of the main conspirators along with his
nephew Pratap @ Shiva Solanki and few others~ The Criminal Appeal
C
No. 492 of2014 arising out of SLP (Crl.) No. 8406 of2012 filed by Mr.
Solanki as well as Criminal Appeal No. 493 of 2014 arising out of SLP
(Cr!.) No. 8292 of 2012 filed by the State of Gujarat, challenging the
order dated September 25, 2012 of the High Court, were ultimately
dismissed by this Court by a detailed judgment and order dated February
D
25, 2014 which is reported as Dinubhai Boghabhai Solanki v. State of
Gujarat'. However, at the same time, bail was granted to Mr. Solanki
on certain conditions mentioned in Para 65, relevant portion whereof is
reproduced below:
"65. We are not much impressed by the submission of Mr Rohatgi
that the appellant-petitioner ought to be released on bail simply
because he happens to be a sitting MP, nor are we much impressed
by the fact that further incarceration of the appellant-petitioner
would prevent him from performing his duties either in Parliament
or in his constituency. So far as the Court is concerned, the
· appellant-petitioner is a suspect/accused in the offence of murder.
No special treatment can be given to the appellant-petitioner simply
on the ground that he is a sitting Member of Parliament. However,
keeping in view the fact that CBI has submitted the.supplementary
charge-sheet and that the trial is likely to take a Jong tiine, we
deem it appropriate to enlarge the appellant-petitioner on bail,
subject to the following conditions:
(i) On his furnishing personal security in the sum of Rs 5 lakhs
with two solvent sureties, each of the like amount, to the
satisfaction of the trial court.
'(2014) 4 sec 626
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(ii) The appellant-petitioner shall appear in court as and .when
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directed by the court.
(iii) The appellant-petitioner shall make himself available for any
further investigation/interrogation by CBI as and when
required.
(iv) The appellant-petitioner shall not directly or indirectly make
any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade that person from
disclosing such facts to the court or to the investigating agency
or to any police officer.
(v) The appellant-petitioner shall not leave India without the
previous permission of the trial court.
(vi) In case the appellant-petitioner is iq possession of a passport
the same shall be deposited with the trial court before being
released on bail."
3. Pursuant to the said order, Mr. Solanki was enlarged on bail on
February 26, 2004.
4. The complainant has filed Criminal Miscellaneous Petition
No. 14006 of2015 seeking cancellation of the aforesaid bail primarily on
the ground that after the release of Mr. Solanki on bail, he is not only
indulging in the acts which amount to violation of the conditions imposed
by this Court but is also threatening and influencing the witnesses. It is
further alleged that because of these reasons, the trial could not progress
and was being delayed or influenced thereby affirming the apprehension
expressed by the complainant at the time of opposing the bail
application.
5. Notice in the aforesaid criminal application, seeking
cancellation of bail, was issued. During hearings, it transpired that there
were three Sessions Cases i.e. 02/2014, 03/2014 and 01/2014 and trial
had not started because CBI had filed application before the Principal
G Judge, Ahmedabad seeking consolidation of these cases. Taking note of
this fact, on December 7, 2015, direction was given by this Court to the
concerned Session Judge to pass appropriate order on application
pending before it expeditiously and not later than 10 days from the date
of the order. The trial was consolidated at the time of the framing of the
charge. Mr. Solanki filed an application for his discharge which was
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DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT
991
& ORS. [A.K. SIKRI, J.]
dismissed by the trial court. Against that order, revision petition had
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been filed before the High Court but no stay was granted. Taking note
of these facts, this Court passed the order dated May 10, 2016 directing
the trial court to proceed to frame the charges and start the trial on day
to day basis. This application for cancellation of bail, thereafter, kept on
getting adjourned at the behest of one party or the other. In the meanB
time, trial proceeded with utmost expedition, pursuant to the aforesaid
directions given by this Court.
, 6. During the trial, it transpired that most of the witnesses had
turned hostile. This further prompted the complainant to approach the
High Court of Gujarat with an appropriate writ petition seeking certain
reliefs including that of de nova trial. The parties requested that the
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hearings in the aforesaid criminal miscellaneous application (seeking
cancellation of bail) be deferred to await the decision of the High Court.
The High Court has decided the writ petition filed by the complainant
vide its detailed judgment dated June 29, 2017. Allowing the said writ
petition, the High Court has directed de nova trial of the case with the
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following specific directions:
"95, This writ application is disposed of with the following
directions:
(1) The High Court on the administrative side shall pass an
appropriate order transferring all the three CBI Sessions cases
i.e. CBI Sessions Cases Nos. 1of2014,2 of2014 and 3 of2014
as on date pending in the Court of the Presiding Officer, namely,
Shri Dinesh L. Patel, CBI Courts, Court No. 4, Ahmedabad to
. any other CBI Court. On all the three CBI Sessions cases referred
to above being transferred to a particular Court, the Presiding
Officer concerned shall retry all the accused persons on the
selfsame charge framed.
(2) The prosecuting agency i.e. the CBI shall obtain the witness
summons from the Court concerned and start examining the
witnesses a fresh.
(3) The retrial shall commence at the earliest and shall proceed
on the day-to-day basis .
. (4) The retrial shall be in-camera proceedings.
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(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
Court precincts.
(ii) Providing security to the witnesses in their place of residence
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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
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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.
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"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 fom;idational 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."
7. Challenging that order, Mr. Solanki and few other co-accused
persons have filed Special Leave Petitions bearing SLP(Criminal) No.
4965 of2017, SLP(Criminal) No. 5086 of2017, SLP(Criminal) No. 5309
G of2017 and SLP(Criminal) No. 5321 of2017. The events described
aforesaid indicate that the issues in these proceedings are interconnected
with each other. For this reason, Criminal Miscellaneous Petition and
the Special Leave Petitions have been heard together and we.proceed
to decide all these cases by the instant common judgment.
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DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT
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8. We have already indicated, in brief, the grounds on which
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complainant has filed the applications seeking cancellation of Mr. Solanki's
bail. Let us, at this stage, record the reasons which prevailed with the
High Court in ordering de nova trial. The High Court noted one crucial
and very° pertinent occurrence that had taken during the trial viz. out of
195 witnesses examined '1y the prosecution during trial, as many as 105
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witnesses were declared hostile. The break-up of the witnesses
examined is as under:
Total 105 Witnesses
61 Witnesses are hostile including 8 eye witnesses 16 Police
witnesses
47 Panch witnesses 45 Hostile
21 official witnesses
4 Magistrates
1 Complainant
1 Doctor
Total 195 Witnesses Examined. 105 witnesses hostile.
9. The High Court found that all the important witnesses including
the eye-witnesses resiled from their statements made before the Police.
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On that basis, it was contended by the complainant before the High
Court that it was a case where the main accused (Mr. Solanki) who is a
former Member of Par!iam'ent had won over all the witnesses including
the eye-witnesses by his sheer power and position. Therefore, accordE
ing to him, it was a fit case for directing· retrial by the High Court in
exercise of its extraordinary powers under Article 226 of the
Constitudon oflndia or the supervisory jurisdiction under Article 227 of
the Constitution oflndia. Insofar as allegation of the complainant in the
writ petition that witnesses were turning hostile due to the influence
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exercised by Mr. Solanki, the High Court has taken note of the aforesaid
application for cancellation of bail preferred by the complainant in this
Court in which two affidavits were filed by the CBI, supporting the
stand of the complainant. In one of the affidavits filed by the CBI duly
affirmed by one Mr. Basil Kerketta, the Superintendent of
Police, Central Bureau of Investigation, Special Crime II, New Delhi,
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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
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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 incfuding 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 instant case. The PW-26 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 PW-26,
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 (Co-accused) were undue pressuring his family and elder
brother of the PW on 12.10.2016 to change his version to turn
hostile in the Court. A true copy of the complaint dated 14.10.2016
is annexed herewith and marked as Annexure-R-1. Further on
the complaint of PW, the Trial Court passed order to Director
General of Police, Gujarat to verify the substance and to take a
decision on the complaint A. true copy of the order dated 15.10.2016
passed by the Specia Judge CBI Court, Court No. 4, Ahmedabad
in CBI Sessions Case No. 2/14 is annexed herewith and marked
as Annexure-R-2. However, decision in the matter is still pending
at the end of DGP, Gujarat.
5. That para 06 of the additional affidavit is the matter of record.
Further it is submitted that the accused applicant was released on
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bail vide order dated 25.02.2014 by this Hon'ble Court wherein it
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT
995
& ORS. [A.K. SIKRI, J.]
was clearly mentioned at para 6I(IV) that the petitioner- appellant A
shall not directly or indirectly make any inducement, .threat or
promise to persons acquainted with the facts of the case. It is
pertinen't 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. Git Somnath to provide adequate security
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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 Annexure-R-3 and a true copy
of the letter dated 5.03.2014 is annexed herewith and mflrked as·
Annexure-R-4 and a true copy of the letter dated 30.09.2015 is
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. annexed herewith and marked as Annexure-R-5. 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 D
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.
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
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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 in(luence, 40witnesses have turned
hostile. Keeping in view of above circumstances, it is further
submitted that the bail of the acyused applicant may be cancelled
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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
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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 justice. As the accused applicant don't deserve any
leniency as he violated the conditions of the bail in the interest of
justice."
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10. In one another affidavit filed on behalf of the CBI before this
Court duly affirmed by Shri. S.S. Kishore, the Superintendent of Police,
Central Bureau of Investigation, Special Crime II, New Delhi, the
following assertion is made:
"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 Pa tan may take immediate action in this respect.
14.