2017 (10) TMI 1640 - SC - Indian Laws

Seeking cancellation of Bail granted - Murder - 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 Parliament had won over all the witnesses including the eye-witnesses by his sheer power and position - whether High Court could order retrial in exercise of writ jurisdiction under Article 226 of the Constitution of India? - HELD THAT - 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. A cumulative and non-disjunctive stare at those facts would 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. Whether it was a case where entire de novo trial is necessitated? - HELD THAT - 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 - Since the contention of the learned counsel of the accused persons rejected on the merits of the case it is opined that 26 witnesses list whereof was furnished by Mr. Nadkarni in the Court with copies to the learned counsel for the accused persons should be re-examined. Whether the High Court is justified in passing strictures against the Presiding Officer of the trial court? - HELD THAT - 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 - 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 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 - thus 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 aside. Going by the exceptional circumstances in which retrial is ordered by the High Court and is being maintained in principle with only modification that instead of all witnesses 26 witnesses would be re-examined it is opined that 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 re-examined Mr. Solanki should remain in confinement and he be released thereafter with certain conditions pending remaining trial - Bail granted to Mr. Solanki by this Court vide order dated February 25 2014 stands cancelled for the time being - petition disposed off.

Summary

Issues Involved:
1. Transfer of investigation from State Police to CBI.
2. Grant and subsequent cancellation of bail.
3. Allegations of witness tampering and threats.
4. High Court's order for de novo trial.
5. Exercise of writ jurisdiction for ordering retrial.
6. Role and conduct of the trial judge.
7. Fair trial and protection of witnesses.

Detailed Analysis:

1. Transfer of Investigation from State Police to CBI:
The judgment begins with the murder of an activist who was campaigning against illegal mining. An FIR was registered, implicating several individuals including a former Member of Parliament (MP). The complainant alleged that the State Police showed slackness in investigating the case, leading to a High Court order transferring the investigation to the Central Bureau of Investigation (CBI). The CBI subsequently filed a supplementary chargesheet implicating the MP as one of the main conspirators.

2. Grant and Subsequent Cancellation of Bail:
The MP was granted bail by the Supreme Court under specific conditions, including non-interference with witnesses and not leaving the country without permission. However, the complainant filed for cancellation of bail, alleging that the MP was violating these conditions by threatening and influencing witnesses, which was delaying the trial.

3. Allegations of Witness Tampering and Threats:
The CBI supported the complainant's allegations with affidavits stating that many witnesses had turned hostile due to threats and inducements by the accused. The High Court noted that out of 195 witnesses examined, 105 had turned hostile, including key eyewitnesses, which indicated substantial tampering.

4. High Court's Order for De Novo Trial:
The High Court ordered a de novo trial, citing the extraordinary number of hostile witnesses and the influence of the accused. The High Court directed the retrial to be conducted by a different judge and provided specific instructions for witness protection and in-camera proceedings.

5. Exercise of Writ Jurisdiction for Ordering Retrial:
The High Court justified its use of writ jurisdiction under Article 226 of the Constitution to order a retrial, emphasizing the necessity of a fair trial and the exceptional circumstances of the case. It referred to various judgments to support its decision, underscoring that the power under Article 226 is expansive and can be used to secure justice.

6. Role and Conduct of the Trial Judge:
The High Court criticized the trial judge for not taking an active role when witnesses were turning hostile. However, the Supreme Court, while agreeing with the need for retrial, found the High Court's strictures against the judge to be excessive and set aside the direction for administrative action against him.

7. Fair Trial and Protection of Witnesses:
The Supreme Court reiterated the importance of a fair trial, where witnesses can testify without fear. It modified the High Court's order by limiting the retrial to the re-examination of 26 crucial witnesses, including 8 eyewitnesses. The MP's bail was temporarily canceled, and he was to be taken into custody during the re-examination of these witnesses. Post this period, he would be released on bail with additional conditions, including a restriction on entering Gujarat until the completion of the trial.

Conclusion:
The Supreme Court upheld the High Court's decision for a retrial in principle but modified it to limit the re-examination to 26 witnesses. It also set aside the High Court's strictures against the trial judge. The judgment emphasized the necessity of a fair trial and the protection of witnesses to ensure justice.