Back
SUPREME COURT OF INDIA
A.K. Sikri, Ashok Bhushan, JJ.
Dinubhai Boghabhai Solanki – Appellants
Versus
State of Gujarat & Ors. – Respondents
Criminal Appeal No. 492 of 2014 With Criminal Appeal No. 1854 of 2017 (Arising Out of SLP(Criminal) No. 4965 of 2017), Criminal Appeal No. 1855 of 2017 (Arising Out of SLP(Criminal) No. 5086 of 2017), Criminal Appeal No. 1856 of 2017 (Arising Out of SLP(Criminal) No. 5309 of 2017) and Criminal Appeal No. of 2017 (Arising Out of SLP(Criminal) No. 5321 of 2017)
Decided On : 30-10-2017
(2014) 4 SCC 626 – Referred
(b) Constitution of India – Article 226, Article 32 and section 386 Code of criminal Procedure, 1973 – De novo trial – 105 out of 195 witnesses including 8 eye witnesses turning hostile – Complaints of threatening and intimidation of witnesses by accused persons – CBI also filing affidavits to that effect – Power of ordering de novo trial with appellate court – Held, constitutional Courts can order de novo trial in exceptional circumstances like present one – However re-examination of all witnesses not necessary – Direction given to examine and cross examine 8 eye witnesses and 18 other important witnesses which will serve the purpose. (Para 10, 11, 12, 26, 29, 40, 42)
(2010) 13 SCC 409; 1982() SCC(Cri) 471 : 1981(Sup) SCC 83; AIR 1962 SC 1788 – Referred
(c) Criminal justice system – In India – Paradigm shift – From ‘"ten criminals may go unpunished but one innocent should not be convicted" to though “innocent persons should not be convicted but at the same time crime should not go unpunished and victims of crimes are also well looked after”. (Para 34)
(d) Criminal justice system – Witnesses turning hostile one after another – Trial court cannot remain mute spectator – It must probe the matter. (Para 41)
(e) Administration of justice – Judicial propriety and discipline – High Court condemning Presiding officer of trial court for being mute spectator to witnesses turning hostile one after another – Directing to look into the matter against Presiding Judge on administrative side of the High Court – Not proper – Set aside. (Para 41, 44)
(2013) 12 SCC 392 – Relied upon
(f) Code of Criminal Procedure, 1973 – Section 439(2) – Accused allegedly violating conditions of bail – Threatening and intimidating witnesses – Confirmed by CBI – caes for cancellation of bail prima facie made out – Bail cancelled till examination/cross-examination of the 8 eye witnesses – Thereafter accused will be on bail with certain conditions, pending remaining trial – during examination of the 18 important witnesses accused will not come to State of Gujarat except on dates of hearing when he is required. (Para 45, 46, 47)
(2017) 2 SCC 178; 2009(6) Scale 358 – Relied upon
Facts of the case:
This is an application for cancellation of bail.
One activist, Amit Jethwa, who was complaining against the illegal mining in and around Gir Forest Sanctuary, was murdered. One MP, Dinubhai Boghabhai Solanki, along with others was made main accused and conspirator.
Due to lackadaisical investigation by State police the High Court on application of the complainant transferred the case to CBI.
Solanki was arrested and charge sheets filed. Solanki was granted bail on certain conditions.
Trail proceeded during which 105 witnesses put of a total of 195 including eye witnesses turned hostile.
Complainant filed writ petition in High Court which was allowed and de novo trial was ordered.
Complainant also filed the instant application for cancellation of bail.
Finding of the Court:
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 aside.
Result: Appeals and applications disposed of.
JUDGMENT
A.K. Sikri, J.
Leave granted in SLP(Criminal) No. 4965 of 2017, SLP(Criminal) No. 5086 of 2017, SLP(Criminal) No. 5309 of 2017 and SLP(Criminal) No. 5321 of 2017.
2. One, Amit Jethwa, stated to be an activist, who was complaining against the illegal mining in and around Gir Forest Sanctuary, was murdered. FIR being I-C.R. No. 163 of 2010 was registered on July 20, 2010 at Sola Police Station under Sections 302 and 114 of Indian 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 (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 with his nephew Pratap @ Shiva Solanki and few others. The Criminal Appeal No. 492 of 2014 arising out of SLP (Crl.) No. 8406 of 2012 filed by Mr. Solanki as well as Criminal Appeal No. 493 of 2014 arising out of SLP (Crl.) 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 25, 2014 which is reported as Dinubhai Boghabhai Solanki v. State of Gujarat, (2014) 4 SCC 626. 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 long time, 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.
(ii) The appellant-petitioner shall appear in court as and when 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-peti
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
