TaxTMI 
TaxTMI 
2017 (10) TMI 1640
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....is nephew were also implicated. As per 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 a....
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....n 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 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 ....
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....in-camera proceedings. (5) The prosecuting agency i.e. the CBI as well as the State police machinery is directed to ensure that full protection is given to each of the witnesses and they be assured that no harm would befall upon them in any manner. For ensuring of a sense of confidence in the mind of the witnesses, and to ensure that they depose freely and fearlessly before the Court, the following steps shall be taken: (i) Ensuring safe passage for the witnesses to and from the 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 a....
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....ion of the complainant in the writ petition that witnesses were turning hostile due to the influence 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, 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....
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....ector General of Police, Gujarat and Supdt. Of Police, Distt. Gir Somnath to provide adequate security to the witnesses that they are getting threats to life from the accused applicant. A true copy of the letter dated 9.10.2013 is annexed herewith and marked as Annexure-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....
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.... the threats given to them by Dinubhai Boghabhai Solanki and for that local police respondent no. 3 is competent authority to take necessary steps." 11) The High Court also took note of various complaints which were made by the witnesses alleging threats being administered by Mr. Solanki as well as his accomplices. All 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 ....
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.... truth and to ensure that justice is done, and extensively quoting from the said judgments, the High Court has emphasised that free and fair trial is sine qua non of Article 21 of the Constitution of India. It has also remarked that criminal justice system is meant not only safeguarding the interest of the accused persons, but is equally devoted to the rights 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 s....
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....nal substantive law shall be followed and ultimately there shall be a reasoned verdict. When the accused faces a charge in a court of law, he expects a fair trial The victim whose grievance and agony have given rise to the trial also expects that justice should be done in accordance with law. Thus, a fair trial leading to a judgment is necessitous in law and that is the assurance that is thought of on both sides. The exponent on behalf of the accused cannot be permitted to command the trial as desired by his philosophy of trial on the plea of fair trial and similarly, the proponent on behalf of the victim should not always be allowed to ventilate the grievance that his cause has not been fairly dealt with in the name of fair trial. Therefore, the concept of expediency and fair trial is quite applicable to the accused as well as to the victim. The result of such trial is to end in a judgment as required to be pronounced in accordance with law. And, that is how the stability of the 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....
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....d the necessary relief. Should I ask the writ applicant to adduce materials in the form of proof beyond reasonable doubt as regards the tampering of the witnesses? Is the material on record not sufficient for this Court to draw a legitimate inference that it is only on account of sheer power and position of the main accused that the entire trial has been reduced to a farce and could be termed as a mock trial? I have no hesitation in rejecting the arguments of the learned counsel appearing for the accused persons that merely because the witnesses turned hostile, the Court cannot order a retrial in exercise of its extraordinary powers under Article 226 of the Constitution of India. A very feeble argument has been canvassed before me that none of the witnesses complained to the Presiding Officer that they were being threatened or induced by the accused persons. A witness, who has been administered dire threats or won over would never dare to utter a single word. It was for the Presiding Officer and the prosecuting agency to look into the matter and see to it that all the witnesses deposed freely and without any fear in their mind." 21) Quoting extensively from the judgment of this ....
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....mative, the High Court took support of the judgment of Punjab and Haryana High Court wherein it had taken suo moto cognizance of a matter in which the accused persons came to be acquitted and the State also did not prefer any appeal against the acquittal. A news item in this regard was published in The Hindustan Times dated November 14, 2007 on the basis of which cognizance was taken and the Court declared trial of the accused persons to be wholly vitiated 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 j....
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....l the writ applicant that he should wait for the final outcome of the trial, and if ultimately, the accused persons are acquitted, he may file an appeal before the Appellate Court will be nothing, but adding insult to the injury. It is a matter of common experience that the criminal appeal, be it one of conviction or acquittal takes years before the same is disposed of finally. The passage of time by itself would prove detriment to the interest of the prosecution. It is very easy for the learned counsel appearing for the accused persons to argue that the Trial Court has to yet appreciate the evidence on record and reach to an appropriate conclusion. In my view, what is left now to appreciate when 105 witnesses outright have been declared hostile. It is the brazen highhandedness on the part of the accused persons which warrants retrial. The distortion in the present case is so brazen that even the 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 t....
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....t petition and passing the directions for de novo trial which have already been reproduced. 29) We have discussed the judgment of the High Court, impugned in these appeals, at some length, with a specific purpose in mind. It would be relevant to point out that the arguments addressed by learned senior counsel M/s. Mukul Rohatgi, Neeraj Kishan Kaul and N.D. Nanavati appearing for different accused persons, were the same arguments which were advanced before the High Court and, therefore, we deemed 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 Appe....
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.... the same time, realisation is now dawning that other side of the crime, namely, victim is also an important stakeholder in the criminal justice and welfare policies. The victim has, till recently, remained forgotten actor in the crime scenario. It is for this reason that "victim justice" has become equally important, namely, to convict the person responsible for a crime. This not only ensures justice to the victim, but to the society at large as well. Therefore, traditional criminology coupled with deviance 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 surrou....
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....shed, this also leads to weakening of the criminal justice system and the society 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 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 ....
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....ould amply justify the conclusion of the High Court, and approaching the case in a right perspective. It would be more so, when examined in the background in which events took place right from the day of murder of the complainant's son. It has come on record that the victim was an activist who had been taking number of cases which are taken note of by the High Court in para 4.3 of the impugned judgment. It is also an admitted fact that the victim Amit Jethwa had filed a Public Interest Litigation (PIL) in 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. 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....
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....e, practically on every working day, same would have happened at the cost of 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. 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 wit....
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....y wrong acquittals'. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. The need of the hour is 'robust judging'. The trial Judge is the linchpin in every case, and he has also its eyes and ears. He is not merely a recorder of facts, but a purveyor of all evidence, oral and circumstantial. It is said that a good trial Judge needs to have a 'third ear' i.e. hear and comprehend what is not said. When a material eyewitness, one after the other start resiling from their statements made before the police, this must obviously excite suspicion in the mind of the trial Judge to probe further and question the witness (even if the prosecutor does not do so). (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, i....
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.... of bail has been made out. In this behalf, we may usefully refer to the following discussion in State of Bihar v. Rajballav Prasad Alias Rajballav Prasad Yadav Alias Rajballabh[(2017) 2 SCC 178]: "23. Keeping in view all the aforesaid considerations in mind, we are of the opinion that it was not a fit case for grant of bail to the respondent at this stage and grave error is committed by the High Court in this behalf. We would like to reproduce following discussion from the judgment in Kanwar Singh Meena v. State of Rajasthan (SCC pp. 186 & 189, paras 10 & 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 mate....
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....l in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation." 25. Such sentiments were expressed much earlier as well by the Court in Talab Haji Hussain v. Madhukar Purshottam Mondkar in the following manner: (AIR p. 379, para 6) "6. ... There can be no more important requirement of the ends of justice than the uninterrupted progress 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 tri....