Supreme Court Orders Retrial in Amit Jethwa Murder Case, Cancels Bail of Accused: Dinubhai Boghabhai Solanki vs. State of Gujarat (2017)

Date of the Judgment: October 30, 2017
Citation: (2017) INSC 942
Judges: A.K. Sikri, J. and Ashok Bhushan, J.

Can a trial be considered fair if most of the witnesses turn hostile due to intimidation? The Supreme Court of India recently addressed this critical question in the case of Dinubhai Boghabhai Solanki vs. State of Gujarat, concerning the murder of activist Amit Jethwa. The court, concerned about the integrity of the trial, ordered a retrial and cancelled the bail of the main accused, Dinubhai Boghabhai Solanki, emphasizing the need for a fair trial where witnesses can testify without fear. This case highlights the challenges of ensuring justice when witnesses are influenced, and it underscores the judiciary’s role in safeguarding the integrity of the legal process. The judgment was delivered by a two-judge bench comprising Justice A.K. Sikri and Justice Ashok Bhushan.

Case Background

Amit Jethwa, an activist known for his complaints against illegal mining near the Gir Forest Sanctuary, was murdered. An FIR was registered on July 20, 2010, at Sola Police Station, implicating Dinubhai Boghabhai Solanki and his nephew, among others, under Section 302 and Section 114 of the Indian Penal Code, 1860, and Section 25(1) of the Arms Act, 1959. Dissatisfied with the State Police’s investigation, the complainant, Amit Jethwa’s father, sought a transfer of the investigation to the Central Bureau of Investigation (CBI). The High Court of Gujarat granted this request on September 25, 2012.

The CBI registered the case and began its investigation, leading to a supplementary charge sheet in January 2014, which named Mr. Solanki as a key conspirator. Mr. Solanki challenged the High Court’s order to transfer the case to the CBI, but the Supreme Court dismissed his appeal on February 25, 2014, while granting him bail with specific conditions. The complainant later filed an application seeking cancellation of bail, alleging that Mr. Solanki was violating the bail conditions by threatening and influencing witnesses.

Timeline

Course of Proceedings

Initially, three Sessions Cases (02/2014, 03/2014, and 01/2014) were pending. The CBI sought consolidation of these cases, which was eventually ordered at the time of framing of charges. Mr. Solanki’s application for discharge was dismissed by the trial court, and his revision petition was rejected by the High Court. The Supreme Court directed the trial court to proceed with the trial on a day-to-day basis. During the trial, a significant number of witnesses turned hostile, prompting the complainant to seek a de novo trial from the High Court. The High Court allowed the writ petition and ordered a retrial.

Legal Framework

The case involves the following legal provisions:

• Section 302 of the Indian Penal Code, 1860: This section deals with the punishment for murder.
• Section 114 of the Indian Penal Code, 1860: This section pertains to abettor present when the offense is committed.
• Section 120B of the Indian Penal Code, 1860: This section deals with the punishment for criminal conspiracy.
• Section 25(1) of the Arms Act, 1959: This section deals with punishment for certain offenses related to arms.

The Supreme Court’s decision also refers to Section 386 of the Code of Criminal Procedure, 1973, which grants powers to the appellate court to order a retrial. Additionally, the Court considered the powers of the High Court under Article 226 of the Constitution of India and the Supreme Court under Article 32 of the Constitution of India, which allow for interventions to ensure justice.

Arguments

The complainant argued that Mr. Solanki, a former Member of Parliament, had used his power and position to influence witnesses, causing them to turn hostile. The complainant pointed to the fact that out of 195 witnesses, 105 were declared hostile, including key eye-witnesses. The complainant also relied on affidavits filed by the CBI, which confirmed that witnesses were being threatened and that Mr. Solanki was violating his bail conditions. The complainant contended that the trial was a farce and sought a retrial to ensure justice.

Mr. Solanki’s defense argued that the writ petition seeking a retrial was not maintainable before the trial court delivered a judgment. They contended that the appellate court under Section 386 of the Code of Criminal Procedure, 1973, is the appropriate authority to order retrial. They also argued that witnesses turn hostile for various reasons and not necessarily due to threats or inducements. They denied the allegations of witness tampering and claimed that the complainant’s plea was presumptive and assumptive.

The CBI, in its affidavits, supported the complainant’s stand, stating that 40 out of 89 witnesses examined until November 24, 2016, had turned hostile due to the influence or threat of the accused. The CBI also mentioned that a witness had filed a complaint stating that Mr. Solanki and his nephew were pressuring his family to change his version in court. The CBI further stated that Mr. Solanki had violated his bail conditions by threatening witnesses and requested the cancellation of his bail.

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issues:

1. Whether the High Court was justified in ordering a de novo trial under Article 226 of the Constitution of India, given the circumstances of the case.
2. Whether the bail granted to Mr. Solanki should be cancelled due to violations of bail conditions and witness intimidation.
3. Whether the High Court was justified in passing strictures against the Presiding Officer of the trial court.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court analyzed the submissions and authorities and held that the High Court was correct in finding that the trial was compromised due to witness intimidation. However, the Court modified the High Court’s order for a complete de novo trial, directing instead that only 26 witnesses, including 8 eye-witnesses, be re-examined.

The Court emphasized the importance of a fair trial, stating that it is a fundamental requirement under Article 21 of the Constitution of India. The Court also noted that the criminal justice system must safeguard the rights of victims as well as the accused. The Court highlighted the alarming trend of witnesses turning hostile and the need to address this issue to maintain the integrity of the judicial process.

The Court also addressed the issue of bail cancellation, noting that Mr. Solanki’s actions of threatening witnesses and violating bail conditions warranted the cancellation of his bail. The Court referred to various precedents that emphasized the need to protect the fair trial and ensure that witnesses can depose freely and truthfully.

Regarding the remarks against the Presiding Officer, the Court acknowledged that while a judge should be vigilant, condemnation of the Presiding Officer was not justified in the absence of cogent evidence.

The Court stated that the following authorities were used for its reasoning:

• Dinubhai Boghabhai Solanki v. State of Gujarat, (2014) 4 SCC 626* was used to refer to the conditions imposed while granting bail to Mr. Solanki.
• State of Maharashtra v. Dr. Praful B. Desai, [(2003) 4 SCC 601]*, Zahira Habibulla H. Sheikh v. State of Gujarat, [(2004) 4 SCC 158]*, Asha Ranjan v. State of Bihar, [(2017) 4 SCC 397]* and Ajay Singh and another v. State of Chhattisgarh, [(2017) 3 SCC 330]* were used to emphasize the importance of a fair trial.
• Swaransingh v. State of Punjab, [AIR 2000 SC 2017]* and Javed Alam v. State of Chhattisgarh & Anr. , (2009) 6 SCC 450* were used to discuss the issue of hostile witnesses.
• Ramesh and others v. State of Haryana, (2017) 1 SCC 529* was used to discuss the reasons behind witnesses turning hostile.
• Ayodhya Dube v. Ram Sumer Singh, (1981) Supp. SCC 83* and K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788* were used to emphasize that law should not be rigid.
• Awani Kumar Upadhyay v. High Court of Judicature of Allahabad and Others, (2013) 12 SCC 392* and Amar Pal Singh v. State of Uttar Pradesh and Another, (2012) 6 SCC 491* were used to emphasize that the High Court should not lightly pass strictures against the judges in the subordinate judiciary.
• State of Bihar v. Rajballav Prasad Alias Rajballav Prasad Yadav Alias Rajballabh, (2017) 2 SCC 178*, Kanwar Singh Meena v. State of Rajasthan*, Panchanan Mishra v. Digambar Mishra* and Talab Haji Hussain v. Madhukar Purshottam Mondkar* were used to discuss the principles for cancellation of bail.
• Masroor v. State of Uttar Pradesh and Another, (2009) 14 SCC 286* and Shahzad Hasan Khan v. Ishtiaq Hasan Khan* were used to discuss the need to balance individual liberty and societal interest.

The Court quoted the following from the judgment:

• “The facts narrated above are glaring and shocking. Right from the day, the son of the writ applicant came to be murdered, till this date, the manner and method in which the accused persons, more particularly, Dinu Bogha Solanki have dominated the proceedings speak volumes of the power they are able to wield.”
• “The case on hand is not one in which the witnesses turned hostile on account of the “culture of compromise”, as explained by the Apex Court. The case on hand is one in which threats and intimidation have been the major causes for the hostility of the witnesses.”
• “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.”

What weighed in the mind of the Court?

The Supreme Court was primarily concerned with ensuring a fair trial and upholding the integrity of the judicial process. The Court was deeply troubled by the fact that a large number of witnesses turned hostile, which suggested that the trial was not conducted in a free and fair manner. The Court also took note of the CBI’s affidavits, which confirmed that witnesses were being threatened and that the accused was violating his bail conditions.

The Court emphasized that the criminal justice system must not only protect the rights of the accused but also ensure that victims receive justice. The Court recognized the need to balance the rights of the accused with the interests of the society and the victims. The Court’s decision to order a retrial and cancel bail was driven by the need to prevent a miscarriage of justice.

Logical Reasoning

Key Takeaways

• ✓ The Supreme Court emphasized the importance of a fair trial, where witnesses can testify without fear or intimidation.
• ✓ The Court acknowledged the need to balance the rights of the accused with the rights of victims and the interests of society.
• ✓ The judgment highlights the issue of witness intimidation and the need for effective witness protection mechanisms.
• ✓ The Court clarified that High Courts can order retrials under Article 226 of the Constitution of India in exceptional circumstances.
• ✓ The judgment underscores the judiciary’s role in safeguarding the integrity of the legal process.

Directions

The Supreme Court issued the following directions:

• The bail granted to Mr. Solanki was cancelled temporarily until the re-examination of eight eye-witnesses is completed.
• The trial court was directed to re-examine 26 witnesses, including the eight eye-witnesses, on a day-to-day basis.
• After the re-examination of the eight eye-witnesses, Mr. Solanki will be released on bail again, with the additional condition that he shall not enter the State of Gujarat until the completion of the remaining evidence.
• The trial court was directed to expedite the trial by conducting it on a day-to-day basis.
• The direction to look into the matter against the Presiding Judge on administrative side of the High Court was set aside.

Development of Law

The ratio decidendi of this case is that in exceptional circumstances, where a trial is compromised due to witness intimidation, a High Court can exercise its powers under Article 226 of the Constitution of India to order a retrial. The Supreme Court also clarified that the judiciary must balance the rights of the accused with the rights of victims and the interest of society. This case reinforces the importance of fair trials and the need to protect witnesses from intimidation. It also reinforces the power of the High Courts under Article 226 to intervene in exceptional cases to ensure justice.

Conclusion

The Supreme Court’s judgment in Dinubhai Boghabhai Solanki vs. State of Gujarat is a significant ruling that underscores the importance of fair trials and the judiciary’s role in protecting the integrity of the legal process. By ordering a retrial and canceling the bail of the main accused, the Court sent a clear message that witness intimidation and tampering will not be tolerated. The judgment highlights the need for robust witness protection mechanisms and reinforces the principle that justice must be served for both the accused and the victims. The Court’s decision to modify the High Court’s order for a complete de novo trial while still ensuring that key witnesses are re-examined demonstrates a balanced approach to ensuring a fair trial.