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2014 Supreme(Guj) 76
SUPREME COURT OF INDIA
Hon’ble Mr. Justice Surinder Singh Nijjar & Hon’ble Mr. Justice A.K. Sikri
Dinubhai Boghabhai Solanki
Versus
State of Gujarat & Ors.
Criminal Appeal No. 492 of 20141—Decided on 25/02/2014
Point in Issue :
Whether in the facts and circumstances of the case the impugned order of Hon’ble High Court directing investigation to be made by CBI justified and proper.
Headnote:Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 302, 114 read with Section 25(1) of Arms Act, 1959 (Central Act 54 of 1959) — Investigation under — Direction to be investigated by CBI authorities — Propriety of order challenged — Finding as to — The case involves death of one ‘A’ a right to information activist involving high profile appellant who is M.P. and Kingpin in criminal Mafia operating within ‘Gir Sanctuary meant for protection of Asiatic lions — High Court while concluding to pass impugned order of transfer of investigation to CBI has observed that circumstances on record indicated that the investigation was controlled from the stage of registering the FIR and the clues provided by accused persons themselves were investigated to close the investigation — Therefore the investigation with the lapses and lacunae did not and could not inspire confidence — The facts and circumstances also amply support the conclusion that the investigation all throughout was far from fair, impartial, independent or prompt — On basis of said clarification High Court ordered transfer of investigation to CBI to in still confidence of the general public in investigation Keeping in mind the seriousness of the case having for reaching implications — Court having considered given by High Court and the reasons, facts and circumstances of the case found no merit in both appeals and dismissed the same.
Held :
All the above circumstances put together indicated that the investigation was controlled from the stage of registering the FIR and only the clues provided by the accused persons themselves were investigated to close the investigation by filing Charge-sheet No. 158 of 2010 dated 10.11.2010 and further investigation had not served any purpose. Therefore, the investigation with the lapses and lacunae as also the unusual acts of omission and commission did not and could not inspire confidence. It may not be proper and advisable to further critically examine the charge-sheet already submitted by the police, as some of the accused persons are already arrested and shown as accused persons and even charge is yet to be framed against them. The facts and averments discussed in paragraphs 6 and 7 hereinabove also amply support the conclusion that the investigation all throughout was far from fair, impartial, independent or prompt. [Para 53]
In Court opinion, the High Court has only noticed the facts which tend to show that the investigation had not been conducted impartially and fairly. Although, the appellant is mentioned on a number of occasions, no specific conclusion is reached that the appellant was responsible for influencing or controlling the investigation. In fact, the finger is pointed only towards the higher echelons of the police, who seem to have been under the influence of the accused persons. Mention of the appellant as the prime suspect is not a conclusion reached by the High Court. Appellant has been referred to as the prime suspect in all the allegations made in the writ petitions and the statements of the relatives including the statement of the father of the deceased. Therefore, in our opinion, by recording the gist of the allegations made, the High Court has not committed any error of jurisdiction. [Para 54(l)]
Law Laid Down :
There is no obligation for the High Court to either hear to make alleged accused a party to the proceedings before directing the investigation be conducted by the CBI.
Surinder Singh Nijjar, J.—This special leave petition impugns the judgment and order dated 25th September, 2012 passed by the Gujarat High Court at Ahmedabad in Special Criminal Application No. 1925 of 2010. By the aforesaid judgment, the High Court has directed that the investigation into the death of Amit Jethwa (hereinafter referred to as ‘Jethwa’), a Right to Information activist be investigated by the CBI authorities and further directing that the proceedings pursuant to the charge sheet submitted by the Gujarat Police shall remain stayed.
2. The facts leading to the filing of the special leave petition out of which the present criminal appeal arises are as under:
Jethwa had filed a Public Interest Litigation, SCA No. 7690 of 2010, against the State of Gujarat and others with the following prayer:
“The appellant therefore prays that your Lordship may be pleased to:
a. Admit this petition.
b. Issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ order or direction directing the respondents to stop illegal mining within 5 kms radius from boundary of Gir Sanctuary.”
3. In the aforesaid writ petition, Jethwa had given details of various activities of certain firms and individuals who were indulging in illegal mining and destroying the biodiversity of natural habitat of Gir forest in Gujarat. This, according to Jethwa, was having an adverse effect on the natural habitat of the Asiatic Lions. He was particularly concerned with illegal mining within 5 kms radius from the boundary of Gir Sanctuary Area. More than 50 mines in the names of different persons were mentioned in the writ petition wherein illegal mining was alleged. Enquiry into the allegations made by Jethwa was in progress in the aforesaid writ petition, when he was brutally murdered.
4. Jethwa was the President of the Gir Nature Youth Club at Khamba, Gujarat. He had been active in fighting against encroachment of forests and poaching. He was also instrumental in the successful prosecution of the actor Salman Khan for shooting an endangered Chinkara deer. He had also taken up cudgels against the actor Aamir Khan when a deer was used in a scene in the movie Lagaan. Apart from this, Jethwa rigorously campaigned against corruption among officers of the Indian Forest Service and opposed the mala fide application of Article 356 of the Constitution of India. In 2007, he had drawn attention to the mysterious death of lions in the Gir Forest, including three that were shot within a few hundred meters of the Babariya forest guard outpost. Jethwa had claimed that “such a thing cannot be possible without support of some forest officials”. On that basis, he had sought suspension of a particular IFS Officer. The incident ultimately led to the uncovering of a large lion poaching gang. He later campaigned against shifting of lions to the Kuno Wildlife Sanctuary in Madhya Pradesh. According to him, his efforts were often blocked by forest officials by charging him with offences such as photographing a dead lion and trespassing. In 2007, Jethwa contested the State Assembly elections against the appellant herein, but lost. In 2008, Jethwa was very actively involved in spreading awareness about effectiveness of the Right to Information Act for addressing grievances, and conducted workshops on the procedure to file requests under RTI, to prevent corrupt practices and other mal-administration. In 2010, Jethwa had filed a Public Interest Litigation (writ petition) questioning the inaction of State Government over the appointment of Lokayukta. The High Court directed the Government to appoint Lokayukta. He had also spearheaded the campaign against rising case pendency in the Gujarat Information Commission due to lack of commissioners. It was on his petition that the High Court gave direction to the State Government to complete the appointments within a stipulated time. He again came to the rescue of RTI applicants by filing a writ petition in the High Cou
