TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 1640
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....the father of Amit Jethwa (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 was transferred to CBI. On transfer, CBI registered RC.11(S)/2012 SCU.V/SC.II/CBI and undertook the investigation. The aforesaid order dated September 25, 2012 passed by the High Court was challenged by Mr. Solanki as well as State of Gujarat 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, 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 wi....
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....g 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 of 2015 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 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 expeditious....
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....ull protection is given to each of the witnesses and they be assured that no harm would befall upon them in any manner. For ensuring of a sense of confidence in the mind of the witnesses, and to ensure that they depose freely and fearlessly before the Court, the following steps shall be taken: (i) Ensuring safe passage for the witnesses to and from the Court precincts. (ii) Providing security to the witnesses in their place of residence wherever considered necessary, and (iii) Relocation of witnesses to any State or to any other place, as thought fit, wherever such a step is necessary. Let me at this stage clarify something important. It could be argued that the directions issued by this Court amounts to directly or indirectly exerting pressure on the witnesses, but the answer to this is an emphatic 'No'. These directions are necessary and are in line of doing complete justice. xxx xxx xxx "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....
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.... 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, 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 tha....
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....-R-3 and a true copy of the letter dated 5.03.2014 is annexed herewith and marked as Annexure-R-4 and a true copy of the letter dated 30.09.2015 is 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 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 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 ....
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.... those complaints are reproduced verbatim by the High Court in the impugned judgment. Even the Special Director, CBI had addressed letters to Director General of Police (DGP), Gandhinagar, Gujarat mentioning about the alleged threats which the complainant and his family members were receiving and requested the DGP to provide necessary police protection. So much so, the trial court was also compelled to pass orders for according protection to certain witnesses. 12) We may point out at this stage that the accused persons had opposed the prayer of the complainant in the said writ petition inter alia on the ground that such writ petition was not maintainable and the Court could not order retrial before the judgment is pronounced by the trial court. It was argued that Section 386 of the Code of Criminal Procedure, 1973 (Cr.P.C.) confers powers on the appellate court to order retrial and, therefore, it was necessary to await the judgment of the trial court and if the circumstances warranted, depending upon the outcome of the trial court verdict, such a plea could be taken in the appeal only. It was also argued that allegations levelled by the writ petitioner (complainant) of tempering w....
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....ghts of the victims as well. 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. 15) The High Court has also highlighted that the role of a judge in dispensation of justice, after ascertaining the true facts, is undoubtedly 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. It is his judicial duty to remain very vigilant, cautious, fair and impartial, and not to give even a slightest of impression that he is biased o....
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.... 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 credibility in the institution is maintained." 17) The High Court, thereafter, described the phenomena of hostile witnesses which have assumed alarming proportion to the criminal justice system in India and adversely affecting the fair trial and justice dispensation system. In the process, the High Court has again referred to various judgments[Swaransingh v. State of Punjab, [AIR 2000 SC 2017] and Javed Alam v. State of Chhattisgarh & Anr., (2009) 6 SCC 450]. 18) After making general remarks in respect of witnesses turning hostile which has started happening too fr....
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....ermed 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." 21) Quoting extensively from the judgment of this Court in Ramesh and others v. State of Haryana[ (2017) 1 SCC 529] wherein a serious note of witnesses turning hostile in criminal cases has been highlighted and various reasons noted therein making the witnesses retract their statements before Court and turning hostile, the High Court has stated that in the instant case, the realistic view of the matter would demonstrate that the major cau....
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....ted and non est in law. While doing so, in exercise of power under Article 226 of the Constitution of India, the Court had explained the contours of this power in the following words: "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 C....
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....r 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 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." 26) The aforesaid thought process is carried further by the High Court while discussing another related argument of the accused persons, namely, the prosecuting agency could have preferred an application under Section 311 of the Cr.P.C. for recalling of th....
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....d it proper to narrate the manner in which the High Court has dealt with these arguments. Another related objective for discussing the judgment of the High Court in some detail was that since we are in complete agreement with the approach of the High Court in the manner in which the issue of retrial has been dealt with in the facts of this case, it would not be necessary for us to spell out and restate those very reasons which have prevailed with the High Court. 30) We may hasten to add that 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. However, in exceptional circumstances, such a power can be exercised by the High Court under Article 226 or by this Court under Article 32 of the Constitution of India. In fact, there are judicial precedents to this effect which have already been mentioned above. 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 nat....
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....iance theory, which had ignored the victim and was offender focussed, has received significant dent with focus shared by the discipline by victimology as well. An interest in the victims of the crime is more than evident now [S.357A, Cr.P.C. provides for 'Victim Compensation Scheme' which is inserted by Amendment Act 5 of 2009 w.e.f. 31-12-2009]. Researchers point out at least three reasons for this trend. First, lack of evidence that different sentences had differing impact on offenders led policy-makers to consider the possibility that crime might be reduced, or at least constrained, through situational measures. This in turn led to an emphasis on the immediate circumstances surrounding the offence, of necessity incorporating the role of the victim, best illustrated in a number of studies carried out by the Home Office (Clarke and Mayhew 1980). Second, and in complete contrast, the developing impact of feminism in sociology, and latterly criminology, has encouraged a greater emphasis on women as victims, notably of rape and domestic violence, and has more widely stimulated an interest in the fear of crime. Finally, and perhaps most significantly, criticism of official statistics ....
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....o, 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 35) The position which emerges is that in a criminal trial, on the one hand there are certain fundamental presumptions in favour of the accused, which are aimed at ensuring that innocent persons are not convicted. And, on the other hand, it has also been realised that if the criminal justice system has to be effective, crime should not go unpunished and victims of crimes are also well looked after. After all, the basic aim of any good legal system is to do justice, which is to ensure that injustice is also not meted out to any citizen. This calls for balancing the interests of accused as well as victims, which in turn depends on fair trial. For achieving this fair trial which is the solemn function of the Court, role of witnesses assumes great significance. This fair trial is possible only when the witnesses are truthful as 'they are the eyes and ears' of the Court. 36) We are conscious of the fact that while judging as to whether a particular accused is....
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....h Court against illegal mining within 5 kms. radius from the boundary of the Gir Sanctuary. In that petition, he had pleaded for protection of environment generally and the biodiversity of Gir Forest, in particular. Mr. Solanki and his nephew were got impleaded in the said PIL whose names emerged during the pendency of that petition. 38) After the murder of the said activist, the case was registered with the Sola Police Station. 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 investigation to an independent investigating agency, i.e., CBI. It is only thereafter that investigation progressed and chargesheets were filed. It also needs to be borne in mind that soon after Mr. Solanki was released on bail, application for cancellation of bail was filed by the complainant with the allegations that Mr. Solanki 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 is supported by the CBI affirming the stand of ....
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...., 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. In this scenario, we had asked Mr. Nadkarni, learned ASG who appeared for CBI to discuss the matter with CBI and on objective and fair assessment, give the list of those witnesses afresh deposition whereof is absolutely essential. After undertaking the aforesaid exercise and on instructions from CBI, Mr. Nadkarni stated that apart from 8 eye-witnesses, 18 more 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. He 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. Mr. Rohatgi, in response, had stated, without prejudice to this contention that no such retrial was necessary at all, direction should be confined to 8 eye-witnesses only if at all some witnesses need to be re-examined. Since we have rejected the contention of the learned counsel of the accused persons on the merits of the cas....
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....' 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). (emphasis supplied)" 43) 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 at other extreme conclusions against that Presiding Officer in the absence of any cogent evidence against him. We were also informed that the said Presiding Officer is at the verge of retirement and is going to retire within a couple of months, after rendering long service of more than 30 years. This Court has time and again stated that the High Court should not lightly pass strictures against the judges in the subordinate judiciary {See - Awani Kumar Upadhyay v. High Court of Judicature of Allahabad and Others [(201....
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.... 18) "10. ... While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such b....
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....ss of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked." 47) In this hue, we need to examine as to whether purpose can be served by banning the entry of Mr. Solanki in the city of Gujarat. It was passionately argued by Mr.....