LexDINUBHAI BOGHABHAI SOLANKI versus STATE OF GUJARAT & ORS.
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[2017] 11 S.C.R. 979 DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT & ORS. (Criminal Appeal No.492 of2014) OCTOBER 30, 2017 [A. K. SIKRI AND ASHOK BHUSHAN, JJ.] A B Administration of criminal justice: Order of retrial - Maintainability of - Murder of an activist who had been co111plaining against the illegal mining in and around Gir Forest Sanctuary - · C The names of appellant and his nephew appeared in the said murder - The complainant, father of the activis't dissatisfied with the investigation, approached High Court for directions for proper investigation - High Court transferred the case to CBI - When the trial took place, out of 195 witnesses examined, as many as 105 witnesses· turned hostile - Complainant approached High Court D seeking de novo trial - By impugned order, High Court directed de novo trial of the case in exercise of writ jurisdiction under Art.226 on the ground that all the important witnesses including eye- witnesses resiled from _their statements made before the police and various complaints were made alleging threats being administered E by the main accused-appellant as well as his accomplice - On appeal, held: High Court was right in holding that the instant case was one of those exceptional cases where there was possibility of witnesses getting hostile because of inducement or threats - Thus, . it is necessary to ensure that trial is conducted fairly where witnesses are able to depose truthfully and fearlessly - However, examination F of all the witnesses once again in de novo trial is not appropriate in the circumstances of this case - In the interest of fair trial, at least crucial witnesses need to be examined again - The CBI stated that apart from 8 eye-witnesses, 18 more witnesses need to be necessarily examined - Out of those, 15 persons are witnesses for circumstantial G evidence and 3 are panch witnesses relating to various pane/mamas - The CBI was categorical that when all 8 eye-witnesses are examined afresh along with other 18 witnesses, it would subserve the purpose for which trial is reordered - Thus, 26 witnesses should be re- examined - In order to ensure that there is a fair trial in literal sense of the term, at least till the time 8 eye-witnesses are re-examined, H 979 980 SUPREME COURT REPORTS [2017] 11 S.C.R. A ·the appellant should remain in confinement and he be released thereafter with certain conditions, pending remaining trial - Constitution of India - Art.226. Administration of criminal justice: Victim-centric approach - The basic. aim of any good legal system is to do justice, which is to B 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. Code of Criminal Procedure, 1973: s.386 - Nonnally a retrial has to be ordered by the Appellate Court while dealing with the C validity and correctness of the judgment of the trial court as this power is expressly conferred upon the Appellate Court by s.386 of the Cr.PC. - However, in exceptional circumstances, such a power can be exercised by the High Court under Art.226 or by Supreme Court under Art.32 of the Constitution of India. D Strictures: Adverse remarks against the Presiding Officer - Whether High Court is justified in passing strictures against the Presiding Officer of the trial court - Held: 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 - E 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, it is also not appropriate to arrive p at other extreme conclusions against that Presiding Officer in the absence of any cogent evidence against him - The said Presiding Officer is to retire within a couple of months, after rendering long service of more than 30 years - The direction to take up the matter against him on administrative side is set aside. G Bail: Cancellation of - Application by the complainant for cancellation of bail on the ground that the appellant had been threatening the witnesses, the complainant
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