Holding

In exceptional circumstances where witness hostility likely stems from intimidation, a High Court may order a retrial under Article 226, but the order should be limited to re‑examining only those crucial witnesses necessary for a fair trial.

Summary

The murder of environmental activist Amit Jethwa, who had filed a PIL against illegal mining near Gir Forest, led to the arrest of Dinubhai Boghabhai Solanki and his nephew. After a lackluster police investigation, the case was transferred to the CBI, which filed a charge‑sheet. During trial, 105 of 195 witnesses turned hostile, prompting the complainant to seek a de novo retrial. The Gujarat High Court, invoking its writ jurisdiction under Art.226, ordered a full retrial and cancelled Solanki's bail, citing threats to witnesses. The Supreme Court upheld the High Court’s view that the case warranted an exceptional retrial but modified the order, directing re‑examination of only 26 crucial witnesses (including eight eye‑witnesses) and cancelling bail pending that re‑examination, with conditions restricting Solanki’s movement. The Court also set aside the High Court’s strictures against the trial judge.

Issues considered

The power of a High Court to order a de novo retrial under Article 226 in a criminal case.
Whether the entire set of witnesses must be re‑examined or only crucial ones.
The propriety of passing adverse remarks against the presiding trial judge.
The grounds for cancelling bail of an accused in view of alleged witness intimidation.

Legislation cited

Arms Act, 1959s. 25(1)
Code of Criminal Procedure, 1973s. 195, s. 311, s. 340, s. 386, s. 391, s. 439(2)
Indian Evidence Act, 1872s. 165
Indian Penal Code, 1860s. 114, s. 302

Subjects

retrialhostile witnessesfair trialbail cancellationArticle 226Section 386 CrPCvictim‑centric justicewitness protectionenvironmental activismillegal mining

Judgment

[2017] 11 S.C.R. 979

DINUBHAI BOGHABHAI SOLANKI A
v.
STATE OF GUJARAT & ORS.
(Criminal Appeal No.492 of2014)
OCTOBER 30, 2017 B

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
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 and his family members
- Bail granted to the appellant cancelled and direction to take him
into custody and remain in custody during the period of re-
examination of 8 eye-witnesses - Once their depositions in the form
H of examination-in-chief and cross-examination are recorded, the
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 981
& ORS.

appellant shall be released on bail again on the same terms and A
conditions on which he was granted bail earlier - After the appellant
comes out on bail, there shall be an qdditional condition, namely,
till the recording and completion of the statements of other witnesses,
.he shall not enter the State of Gujarat.
Disposing of the appeals, the Court B
HELD: 1.1 Normally such a retrial has'to be ordered by
the Appellate Court while dealing with the validity and correctness
of the judgment of the trial 'court as this power is expressly
. conferred upon the Appellate Court by Section 386 of the Cr.P.C.
However, in exceptional circumstances, such a power can be c
exercised by the High Court under Article 226 or by this Court
under Article 32 of the Constitution of India. There are no
shackles to the powers of the Constitutional Court under these
provisions, except self-imposed restrictions laid down by. Courts
themselves. But for that, these powers are plenary in nature
meant to do complete justice and to inhibit travesty of justice. D
Therefore, the High Court was right in holding that the p'reserit
case was one of those exceptional cases where possibility of
witnesses getting hostile because of inducement or threats cannot
be ruled out. However, it is not suggested· that the appellant and
his nephew are the persons responsible for the murder. That . E
charge which is levelled against them ·and other accused persons
has to be proved in the trial by cogent evidence. No doubt,.
standard of proof that is required in such criminal cases is that
the guilt has to be proved beyond reasonable doubt. However, at
the same time, it is also necessary to ensure that trial is conducted
fairly where witnesses are able to depose truthfully and fearlessly. F
Old adage judicial doctrine, which is the bedrock of criminal
jurisprudence, still holds good, viz., the basic assumption that an
accused is innocent till the guilt is proved by cogent evidence.
At the same time, victim is also an importapt~~akeholder in the
criminal justice and welfare policies. It is ''.ior~this reason that G
"victim justice" has become equally important,' ~amely, to convict
the person responsible for a crime. This not only ensures justice
to the victim, but to the society at large as well. [Paras 30, 31, 32]
[1006-B-H; 1007-A-B]

H
J

982 SUPREME COURT REPORTS [2017) 1l S.C.R.

A 1.2 There is a discernible paradigm shift in the criminal
justice system in India which keeps in mind the interests of
victims as well. Victim oriented policies are introduced giving
better role to the victims of crime in criminal trials. It has led to
adopting two pronged strategy. On the one hand, law now
recognises, with the insertion of necessary statutory provisions,
B
expanding role of victim in the procedural justice. On the other
hand, substantive justice is also done to these victims by putting
an obligation on the State (and even the culprit of crime) by
providing adequate compensation to the victims. The result is
that private parties are now able to assert "their claim for fair
c trial and, thus, an effective 'say' in criminal prosecution, not
merely as a 'witness' but also as one impacted". That apart, it is
in the larger interest of the society that actual perpetrator of the
crime gets convicted and is suitably punished. Those persons
who have committed the crime, if allowed to go unpunished, this
also leads to weakening of the criminal justice system and the
D
socief:y starts losing faith therein. Therefore, the first part of the
celebrated dictum "ten criminals may go unpunished but one
innocent should not be convicted" has not to be taken routinely.
No doubt, latter part of the aforesaid phrase, i.e., "innocent person
should not be convicted" remains still valid. However, that does
E not mean that in the process "ten persons may go unpunished"
and law becomes a mute spectator to this scenario, showing its
helplessness. In order to ensure that criminal justice system is
vibrant and effective, perpetrators of the crime should not go
unpunished and all efforts are to be made to plug the loopholes
which may give rise to the aforesaid situation. [Paras 33, 34]
F
[1007-F-G; 1008-A-B]
2. While judging as to whether a particular accused is guilty
of an offence or not, emotions have no role to play. Whereas,
victims, or family of victims, or witnesses, may become emotive
in their testimonies, in a given case, as far as the Court is
G concerned, it has to evaluate the evidence which comes before it
dispassionately and objectively. At the same time, it is also a fact
that emotion pervades the law in certain respects. Criminal trials
are not allusive to the fact that many a times crimes are committed
in the 'heat of passion' or even categorised as 'hate crimes'.
H Emotions like anger, compassion, mercy, vengeance, hatred get
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 983
&ORS.

entries in criminal trials. However, insofar as the Judge is A
conce.rned, most of these emotions may become relevant only at
the stage of punishment or sentencing, once the guilt is established
i
by credible evidence, evaluated objectively by the Court. The
· aforesaid factors, then, become either mitigating/extenuating
circumstances or aggravating circumstances. The manner in which B
the murder of the victim-deceased activist is committed may be
cruel or ruthless. However, in the first instance it has to be
examined as to whether the accused persons are responsible for
the said murder. or they (or some of them) are innocent. [Para
36] [1009-A-E]
3. The victim had filed a Public Interest Litigation (PIL) in C
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. The appellant and his nephew were got
impleaded in the said PIL whose names emerged during the D
pendency of that petition. After the murder of the said activist,.
the case was registered but the investigation was lackadaisical.
The complainant was forced to approach the High Court to seek
necessary directions for proper investigation. The High Court
was compelled to intervene and it transferred the investigati<?n
to an independent investigating agency, i.e., CBI. It was only E
thereafter that investigation progressed and chargesheets were
filed. Soon after the appellant was released on bail, application
for cancellation of bail was filed by the complainant with the
allegations that the. appellant was extending threats to the
complainant, his family members as well as witnesses. Even some F
witnesses complained to this effect. What is revealing that this
application was supported by the CBI affirming the stand of the
complainant to the effect that witnesses are threatened. [Paras
37, 38] [1009-G-H; 1010-C-D]
4. Trial is expedited on the directions of the Court and G
witnesses start turning hostile. It is difficult to say, at least, prima
facie, that in the given scenario, the CBI, during investigation,
would have compelled the witnesses to give statements against
the accused persons. In any case, that is also a matter to be
finally tested at the time of trial. However, it is stated that
H
984 SUPREME. COURT REPORTS [2017) 11 S.C.R.

A requirement of a fair trial has to be fulfilled. When the trial took
place, as many as 105 witnesses turn hostile, out of 195 witnesses
examined, is so eloquent that it does not need much effort to
fathom into the reasons there for. However, when the aforesaid
facts are considered cumulatively, it compels to take a view that
in the interest of fair trial, at least crucial witnesses need to be
B
examined again. [Para 39] [1010-E-F]
5. (i) Whether it was a case where entire de novo trial is
necessitated? (ii) Whether the High Court is justified in passing
strictures against the Presiding Officer of the trial court?
c 5.1 Insofar as first aspect is concerned, it transpires that
the CBI had stated before the High Court that de novo trial may
not be necessary and the purpose would be served by recalling
46 witnesses, out of which 8 witnesses are cited as eye-witnesses.
It is true that the examination of all the witnesses once again in
de tiovo trial may not be appropriate in the circumst;mces of this
D case. On the order passed b)' this Court for conducting day to
day trial, the trial court could record the deposition of 195
witnesses over a period of one year. Obviously, in the process of
giving priority to this case by fixing it for evidence, practically on
every working day, same would have happened at the cost of
E adjourning many other cases. 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
F 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.
The CBI stated that apart from 8 eye-witnesses, 18 more
G witnesses need to be necessarily examined. Out of those, 15
persons are witnesses for circumstantial evidence and 3 are panch
witnesses relating to various panchnamas. The CBI was
categorical that when all 8 eye-witnesses are examined afresh
along with other 18 witnesses as aforesaid, it would subserve the
purpose for which trial is reordered. [Paras 40, 41] [1010-A-F;
H 1010-G-H]
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 985
& ORS.

5.2 As regards the second aspect of remarks against the A
Judge, 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. At the same time,
condemnation of the Presiding Officer and going to the extent of B
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 at
other extreme conclusions against that Presiding Officer in the
absence of any cogent evidence against him. The said Presiding C
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. The direction to take up the matter against D
him on administrative side dues not seem to be appropriate. The
direction of the High Court is modified in respect of two aspects.
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 E
aside. [Paras 42-45) [1011-H; 1012-A-B; 1013-A-F]
Awani Kumar Upadhyay v. High Court of Judicature of
Allahabad and Others (Z013) 12 SCC 392 : [2013] 3
SCR 416 - relied on.
6. As regards the application filed by the complainant for F
cancellation of bail on the ground that the appellant had been
threatening the witnesses; threats have been e.xtended to the
complainant and his family members as well for whose protection
CBI had written to the DGP, Gujarat and it is also stated that
apprehension of the complainant expressed earlier which can be G
discerned from the events that have taken place, coupled with
that, a very pertinent and significant factor that even CBI has
affirmed the said plea of the complainant with categ~rical assertion
that the witnesses are threatened by the appellant, prima facie
case for cancellation of bail has been made out. [Para 46) [1013-
G-H; 1014-A-B] H
986 SUPREME COURT REPORTS [2017) ll S.C.R.

A State of Bihar v. Rajballav Prasad Alias Rajballav
Prasad Yadav Alias Rajballabh (2017) 2 SCC 178 :
[2016) 9 SCR 652 ; Masroor v. State of Uttar Pradesh
and Another (2009) 14 SCC 286 : [2009) 6 SCR 1030
- relied on.
B 7. 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, the appellant should remain in confinement and he be
released thereafter. with certain conditions, pending remaining
trial. Bail granted to the appellant stood cancelled for the time
being. The trial court shall summon 26 witnesses who are to be
C examined afresh. In the first instance, 8 eye-witnesses shall be
summoned and examined on day to day basis. Once their
depositions in the form of examination-in-chief and cross-
examination are recorded, the appellant shall be released on bail
again on the same terms and conditions on which he was granted
D bail earlier by this Court. After the appellant comes out on bail,
there shall be an additional condition, namely, till the recording
and completion of the statements of other witnesses, he shall not
enter the State of Gujarat. [Para 48) [1017-B-D]
Dinubhai Boghabhai Solanki v. State of Gujarat
E (2014) 4 SCC 626 : [2014) 3 SCR 932 ; State of
Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC
601 : [2003) 3 SCR 244 ; Zahira Habibulla H. Sheikh
v. State of Gujarat (2004) 4 SCC 158 : [2004) 3 SCR
1050 ; Asha Ranjan v. State of Bihar (2017) 4 SCC
397 ; Ajay Singh and another v. State of Chhattisgarh,
F (2017) 3 SCC 330 : [2017) 1 SCR 286 ; Swaransingh
v. State of Punjab AIR 2000 SC 2017 : [2000) 3 SCR
572; Javed Alam v. State of Chhattisgarh & Am: (2009)
6 SCC 450 : [2009] 8 SCR 398 ; Ramesh and others v.
State of Hi:iryana (2017) 1 SCC 529 : [2016) 8 SCR
G 936 ; Ayodhya Dube v. Ram Sumer Singh (1981) Supp.
SCC 83 ; K. Chinnaswamy Reddy v. State of Andhra
Pradesh AIR 1962 SC 1788 : [1963) SCR 412 ; Rudul
Sah v. State of Bihar (1983) 4 SCC 141 : [1983] 3 SCR
508; Delhi Domestic Working Womens Forum v. Union

H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 987
&ORS.

of India (1995) 1 SCC 14 : [1994] 4 Suppl. SCR 528 ; A
D.K. Basu v. State of West Bengal (1997) 1 SCC 416 :
[1996] 10 Suppl. SCR 284 ; Suresh & Anr. v. State of
Haryana (2015) 2 SCC 227 ; Amar Pal Singh v. State
of Uttar Pradesh and Another (2012) 6 SCC 491 :
[2012] 5 SCR 1154 - referred to.
B
Case Law Reference
[2014] 3 SCR 932 referred to Para2
[2003] 3 SCR 244 referred to Para 14
[2004] 3 SCR 1050 referred to Para 14 c
(2011) 4 sec 397 referred to Para 14
[2017] 1 SCR 286 referred to Para 14
[2000] 3 SCR -572 referred to Para 17
D
[2009] 8 SCR 398 referred to Para 17
[2016] 8 SCR 936 referred to Para 21
(1981) Supp. sec 83 referred to Para 24
[1963] SCR 412 referred to Para 24 E
[1983] 3 SCR 508 referred to Para 32
[1994] 4 Suppl. SCR 528 referred to Para 32
[1996] 10 Suppl. SCR 284 referred to Para 32
(2015) 2 sec 221 referred to Para 32 F

[2013] 3 SCR 416 relied on Para 43
[2012] 5 SCR 1154 relied on Para 43
[2016] 9 SCR 652 relied on Para 46
G
[2009] 6 SCR1030 referred to Para 47

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 492 of2014.
H
988 SUPREME COURT REPORTS [2017] 11 S.C.R.

A From the Judgment and Order dated 25 .09 .2012 of the High Court
of Gujarat at Ahmedabad in Special Criminal Application No. 1925 of
2010.
WITH
CRL. A. Nos. 1854, 1855, 1856 and 1857 of 2017.
B
Mukul Rohatgi, S.V. Raju, N.D. Nanavati, S. Prasad, Sr. Advs,
Mahesh Agrawal, Ms. Neeha Nagpal, Shashav Pandit, Niral Mehta,
Ms. Devanshi Singh, Ms. Aashtha Mehta, E.C. Agrawala, Santosh
Krishnan, Rudreshwar Singh, Gautam Singh, Ms. Isha Singh, Ms. Snehil
Sonam, Aditiya Vikram Singh, Kaushik Poddar, Nikhil Nayyar, N. Sai
C Vinod, Dhananjay Baijal, Ms. Smriti Shah, Divyanshu Rai, Advs for the
Appellant.
A.N.S. Nadkarni, ASG, Ms. Geeta Luthra, Anand Grover,
Sr. Advs, Ms. Rukhmini Bobde, Mukul Singh, P.K. Dey, Ujjwal Jain,
Anshul Duggal, Pranav Malhotra, Mukesh Kumar Maroria, Prashant
D Bhushan, Ms. Kamini Jaiswal, Rohit Kumar Singh, Abhimanue Shrestha,
Ms. Rani Mishra, Jatinder Pal Singh, Ms. Shruti Dutt, Ms. Hemantika
Wahi, Ms. Jesal Wahi, Ms. Puja Singh, Ms. Mamta Singh, Roh it Kumar
Singh, Ad vs for the Respondent.
The Judgment of the Court was delivered by
E
A.K. SIKRI, J. 1. Leave granted in SLP(Criminal) No. 4965 of
2017, SLP(Criminal) No. 5086 of2017, SLP(Criminal) No. 5309 of2017 .
and SLP(Criminal) No. 5321 of2017.
2. One, Amit Jethwa, stated to be an activist, who was complaining
F against the illegal mining in and around Gir Forest Sanctuary, was
murdered. FIR being I-C.R. No. 163 of2010 was registered on July 20,
2010 at Sola Police Station under Sections 302 and 114 oflndian 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
G (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 w~s transferred to CBI. On transfer,
CBI registered RC.ll(S)/2012 SCU.V/SC.II/CBI and undertook the
investigation. The aforesaid order dated September 25, 2012 passed by
H
DINl[BHAI
., -
BOGHABHAI SOLANKI v. STATE OF GUJARAT 989
& ORS. [A. K. SIKRI, J.]

the High Court was challenged by Mr. Solanki as well as State of Gujarat A
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, B
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 C
No. 492 of2014 arising out of SLP (Crl.) No. 8406 of2012 filed by Mr.
Solanki as well as Criminal Appeal No. 493 of 2014 arising out of SLP
(Cr!.) 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 D
25, 2014 which is reported as Dinubhai Boghabhai Solanki v. State of
Gujarat'. 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 E
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. F
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 Jong tiine, we
)
deem it appropriate to enlarge the appellant-petitioner on bail,
subject to the following conditions: G

(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.
'(2014) 4 sec 626
H
990 SUPREME COURT REPORTS [2017] 11 S.C.R.

A (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.
B (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.
c (v) The appellant-petitioner shall not leave India without the
previous permission of the trial court.
(vi) In case the appellant-petitioner is iq possession of a passport
the same shall be deposited with the trial court before being
released on bail."
D
3. Pursuant to the said order, Mr. Solanki was enlarged on bail on
February 26, 2004.
4. The complainant has filed Criminal Miscellaneous Petition
No. 14006 of2015 seeking cancellation of the aforesaid bail primarily on
the ground that after the release of Mr. Solanki on bail, he is not only
E
indulging in the acts which amount to violation of the conditions imposed
by this Court but is also threatening and influencing the witnesses. It is
further alleged that because of these reasons, the trial could not progress
and was being delayed or influenced thereby affirming the apprehension
expressed by the complainant at the time of opposing the bail
F application.
5. Notice in the aforesaid criminal application, seeking
cancellation of bail, was issued. During hearings, it transpired that there
were three Sessions Cases i.e. 02/2014, 03/2014 and 01/2014 and trial
had not started because CBI had filed application before the Principal
G Judge, Ahmedabad seeking consolidation of these cases. Taking note of
this fact, on December 7, 2015, direction was given by this Court to the
concerned Session Judge to pass appropriate order on application
pending before it expeditiously and not later than 10 days from the date
of the order. The trial was consolidated at the time of the framing of the
charge. Mr. Solanki filed an application for his discharge which was
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 991
& ORS. [A.K. SIKRI, J.]

dismissed by the trial court. Against that order, revision petition had A
been filed before the High Court but no stay was granted. Taking note
of these facts, this Court passed the order dated May 10, 2016 directing
the trial court to proceed to frame the charges and start the trial on day
to day basis. This application for cancellation of bail, thereafter, kept on
getting adjourned at the behest of one party or the other. In the mean- B
time, trial proceeded with utmost expedition, pursuant to the aforesaid
directions given by this Court.
, 6. During the trial, it transpired that most of the witnesses had
turned hostile. This further prompted the complainant to approach the
High Court of Gujarat with an appropriate writ petition seeking certain
reliefs including that of de nova trial. The parties requested that the C
hearings in the aforesaid criminal miscellaneous application (seeking
cancellation of bail) be deferred to await the decision of the High Court.
The High Court has decided the writ petition filed by the complainant
vide its detailed judgment dated June 29, 2017. Allowing the said writ
petition, the High Court has directed de nova trial of the case with the D
following specific directions:
"95, This writ application is disposed of with the following
directions:
(1) The High Court on the administrative side shall pass an
appropriate order transferring all the three CBI Sessions cases E
i.e. CBI Sessions Cases Nos. 1of2014,2 of2014 and 3 of2014
as on date pending in the Court of the Presiding Officer, namely,
Shri Dinesh L. Patel, CBI Courts, Court No. 4, Ahmedabad to
. any other CBI Court. On all the three CBI Sessions cases referred
to above being transferred to a particular Court, the Presiding F
Officer concerned shall retry all the accused persons on the
selfsame charge framed.
(2) The prosecuting agency i.e. the CBI shall obtain the witness
summons from the Court concerned and start examining the
witnesses a fresh. G
(3) The retrial shall commence at the earliest and shall proceed
on the day-to-day basis .
. (4) The retrial shall be in-camera proceedings.

H
992 SUPREME COURT REPORTS [2017] ll S.C.R.

A (5) The prosecuting agency i.e. the CBI as well as the State police
machinery is directed to ensure that full protection is given to
each of the witnesses and they be assured that no harm would
befall upon them in any manner. For ensuring of a sense of
confidence in the mind of the witnesses, and to ensure that they
depose freely and fearlessly before the Court, the following steps
B
shall be taken:
(i) Ensuring safe passage for the witnesses to and from the
Court precincts.
(ii) Providing security to the witnesses in their place of residence
c wherever considered necessary, and
(iii) Relocation of witnesses to any State or to any other place,
as thought fit, wherever such a step is necessary.
Let me at this stage clarify something important. It could be
argued that the directions issued by this Court amounts to directly
D or indirectly exerting pressure on the witnesses, but the answer to
this is an emphatic 'No'. These directions are necessary and are
in line of doing complete justice.
xxx xxx xxx
"96. I conclude this judgment reminding one and all that justice is
E
a concept involving the fair, moral and impartial treatment of all
persons. In its most general sense, it means according individuals
what they actually deserve or merit, or are in some sense entitled
to. Justice is a particularly fom;idational concept within most
systems of"Law". From the prospective of pragmatism, it is a
F name for a fair result. Injustice_ anywhere is a threat to justice
everywhere."
7. Challenging that order, Mr. Solanki and few other co-accused
persons have filed Special Leave Petitions bearing SLP(Criminal) No.
4965 of2017, SLP(Criminal) No. 5086 of2017, SLP(Criminal) No. 5309
G of2017 and SLP(Criminal) No. 5321 of2017. The events described
aforesaid indicate that the issues in these proceedings are interconnected
with each other. For this reason, Criminal Miscellaneous Petition and
the Special Leave Petitions have been heard together and we.proceed
to decide all these cases by the instant common judgment.
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 993
& ORS. [A. K. SIKRI, J.]

8. We have already indicated, in brief, the grounds on which A
complainant has filed the applications seeking cancellation of Mr. Solanki's
bail. Let us, at this stage, record the reasons which prevailed with the
High Court in ordering de nova trial. The High Court noted one crucial
and very° pertinent occurrence that had taken during the trial viz. out of
195 witnesses examined '1y the prosecution during trial, as many as 105 B
witnesses were declared hostile. The break-up of the witnesses
examined is as under:
Total 105 Witnesses
61 Witnesses are hostile including 8 eye witnesses 16 Police
witnesses
47 Panch witnesses 45 Hostile c
21 official witnesses
4 Magistrates
1 Complainant
1 Doctor
Total 195 Witnesses Examined. 105 witnesses hostile. D
9. The High Court found that all the important witnesses including
the eye-witnesses resiled from their statements made before the Police.
On that basis, 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 Par!iam'ent had won over all the witnesses including
the eye-witnesses by his sheer power and position. Therefore, accord- E
ing to him, it was a fit case for directing· retrial by the High Court in
exercise of its extraordinary powers under Article 226 of the
Constitudon oflndia or the supervisory jurisdiction under Article 227 of
the Constitution oflndia. Insofar as allegation of the complainant in the
writ petition that witnesses were turning hostile due to the influence F
exercised by Mr. Solanki, the High Court has taken note of the aforesaid
application for cancellation of bail preferred by the complainant in this
Court in which two affidavits were filed by the CBI, supporting the
stand of the complainant. In one of the affidavits filed by the CBI duly
affirmed by one Mr. Basil Kerketta, the Superintendent of
Police, Central Bureau of Investigation, Special Crime II, New Delhi, G
the following has been stated:
"2. That the contents of para 3 are wrong and denied. It is
submitted that before investigation by CBI, the case was
investigated by Crime Branch of Ahmedabad and they had filed
H
994 SUPREME COURT REPORTS [2017] 11 S.C.R.

A two charges sheets and they had mentioned 1512 witnesses.
Thereafter, on transfer of case from Gujarat Police CBI conducted
further investigation in compliance of direction/order vide dated
25.09.2012 of High Court of Gujarat and filed Supplementary
chargesheet on 21.12.2013 on conclusion of the investigation. CBI
has relied upon 121 Prosecution Witnesses. It is further submitted
B
that till 24.11.2016 Eighty Nine (89) Prosecution Witnesses have
been examined and out of these 40 witnesses have turned hostile
due to the influence/threat of the accused applicant. The important
witnesses incfuding police officers are yet to be examined.
3. That the contents of para 4 are wrong and denied. It is submitted
c that the accused applicant is the main conspirator and kingpin in
the instant case. The PW-26 has clearly deposed before the trial
court about the role played by the accused applicant in the murder
of Amit Jethwa. It is further submitted that the accused applicant
is trying to give a political colour to the statement of the PW-26,
D where as the PW has no connection with any political party at the
time of recording of his statement. It is further submitted that the
instant case was registered by CBI on 06.10.2012 and thereafter
the witnesses were examined again as fresh and statements
recorded accordingly during the course of further investigation.
4. That with regard to para 5 of the additional affidavit, it is
E submitted that on 15.10.2016, one PW was to be examined and
prior to his examination, he filed a complaint to CBI stating therein
that accused applicant and his nephew Pratapbhai Shivabhyai
Solanki (Co-accused) were undue pressuring his family and elder
brother of the PW on 12.10.2016 to change his version to turn
F hostile in the Court. A true copy of the complaint dated 14.10.2016
is annexed herewith and marked as Annexure-R-1. Further on
the complaint of PW, the Trial Court passed order to Director
General of Police, Gujarat to verify the substance and to take a
decision on the complaint A. true copy of the order dated 15.10.2016
passed by the Specia Judge CBI Court, Court No. 4, Ahmedabad
G in CBI Sessions Case No. 2/14 is annexed herewith and marked
as Annexure-R-2. However, decision in the matter is still pending
at the end of DGP, Gujarat.
5. That para 06 of the additional affidavit is the matter of record.
Further it is submitted that the accused applicant was released on
H bail vide order dated 25.02.2014 by this Hon'ble Court wherein it
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 995
& ORS. [A.K. SIKRI, J.]

was clearly mentioned at para 6I(IV) that the petitioner- appellant A
shall not directly or indirectly make any inducement, .threat or
promise to persons acquainted with the facts of the case. It is
pertinen't to mention here that the accused applicant started
threatening the witnesses and on the complaint of the witnesses,
CBI wrote a letter to Director General of Police, Gujarat and
Supdt. Of Police, Distt. Git Somnath to provide adequate security B
to the witnesses that they are getting threats to life from the
accused applicant. A true copy of the letter dated 9.10.2013 is
annexed herewith and marked as Annexure-R-3 and a true copy
of the letter dated 5.03.2014 is annexed herewith and mflrked as·
Annexure-R-4 and a true copy of the letter dated 30.09.2015 is C
. annexed herewith and marked as Annexure-R-5. Thus, the acts
and conduct of the accused applicant have violated the conditions
as imposed by this Hon 'ble Court while granting bail to him.
6. That para 7 of the additional affidavit is wrong and denied, it is
submitted that out of 89 witnesses examined, 49 witnesses have D
supported the prosecution case fully and 40 witnesses have turned
hostile due to the influence of the accused applicant. It is further ·
submitted that actual position of the deposition is a matter of record.
8. That with regard to para 9, it is submitted that 126 witnesses
including important witnesses are yet to·be examined. Further,
the accused applicant is on bail, he is making all possible efforts to E
influence the remaining witnesses by way of inducement promise .
·and there is a strong possibility that the remaining witnesses may
turn hostile. Till now, due to his in(luence, 40witnesses have turned
hostile. Keeping in view of above circumstances, it is further
submitted that the bail of the acyused applicant may be cancelled F
in the interest of justice. It is further submitted that more witnesses
may be examined if necessary as this is the prerogative of the·
prosecution in the interest of the case.
9. It is, therefore, most respectfully prayed that this Hon'ble Court
may kindly be pleased to cancel the bail granted to Dinubhai G
Boghabail Solanki vide order dated 25.02.2014 passed by this
Hon;ble Court in Crl. Misc. Petition No. 23723 of 2013 or pass
any other order as this Hon 'ble Court may deem fit and proper in
the interest justice. As the accused applicant don't deserve any
leniency as he violated the conditions of the bail in the interest of
justice." H
996 SUPREME COURT REPORTS [2017) ll S.C.R.

A 10. In one another affidavit filed on behalf of the CBI before this
Court duly affirmed by Shri. S.S. Kishore, the Superintendent of Police,
Central Bureau of Investigation, Special Crime II, New Delhi, the
following assertion is made:
"6. In response to the para 14 of the petition, it is submitted that
B some of the witnesses have intimated regarding threats given by
Shri. Dinubhai Boghabhai Solanki to them and to influence them
and thereafter CBI as written letters on 09.10.2013 and 05.03.2014
to DGP of Gujarat Police for providing adequate security to the
witnesses as they were under threat witnesses as they were under
threat from Dinubhai Boghabhai Solanki.
c
7. That the contents of para 15 of the petition are matter of
record. The complaint lodged with concerned police station against
Sh. Dinubhai Boghabhai Solanki and others for their alleged
atrocities over the witnesses pertains to the jurisdiction of local
police.
D
10. That in para 1 of the petition, the petitioner has alleged that
the shooter in the instant case i.e. Shailesh Pandya, who is presently
lodged in Patan Sub Jai, is running an extortion business from the
jail itself. These allegations pertain to Sub Jail Patan and concerned
Jail Authorities of Patan may take immediate action in this respect.
E
14. That the apprehension of complainant in para 22 of the petition
appears to be genuine witnesses have reported about the threats
given to them by Dinubhai Boghabhai Solanki and for that local
police respondent no. 3 is competent authority to take necessary
steps."
F
11. The High Court also took note of various complaints which
were made by the witnesses alleging threats being administered by Mr.
Solanki as well as his accomplices. All those complaints are reproduced
verbatim by the High Court in the impugned judgment. Even the Special
Director, CBI had addressed letters to Director General of Police (DGP),
G Gandhinagar, Gujarat mentioning about the alleged threats which the
complainant and his family members were receiving and requested the
DGP to provide necessary police protection. So much so, the trial court
was also compelled to pass orders for according protection to certain
witnesses.
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 997
& ORS. [A.K. SIKRI, J.]

12. We may point out at this stage that the accused persons had A
opposed the prayer of the complainant in the said writ petition inter alia
on the ground that such writ petition was not maintainable and the Court
could not order retrial before the judgment is pronounced by the trial
court. It was argued that Section 386 of the Code of Criminal Procedure,
1973 (Cr.P.C.) confers powers on the appellate court to order retrial B
and, therefore, it was necessary to await the judgment of the trial court
and if the circumstances warranted, depending upon the outcome of the
trial court verdict, such a plea could be taken in the appeal only. It was
also argued that allegations levelled by the writ petitioner (complainant)
of tempering with the prosecution witnesses could not be looked into in
the writ proceedings as these were disputed questions of facts. It was C
also submitted by the counsel of the accused persons that even those
witnesses who had alleged complaints against Mr. Solanki extending
threats and inducements to them, did not support the case of the
prosecution except one. The trial court had yet to appreciate the evidence
of the hostile witnesses and just because these witnesses had turned
D
hostile, was no ground or reason to discard their entire evidence. It was
also argued that witnesses tum hostile for various reasons and no inference
can be drawn that this phenomenon occurred only because of alleged
threats or inducement and such a plea of the complainant was only
presumptuous and assumptious. Allegations of extending any threats or
inducement to these witnesses by approaching these witnesses were E
denied by the accused persons.
13. After taking note of the aforesaid facts and submissions, the
High Court pointed out that moot question was as to whether it could
order retrial in exercise of writ jurisdiction under Article 226 of the
Constitution of India. With this poser, the High Court has analysed the F
said issue under the following heads:
(i) Concept of fair trial.
(ii) Hostile witnesses - a menace to the criminal justice system.
(iii) Exercise of writ jurisdiction for the purpose ofretrial. G
(iv) Sections 311 and 391 of Cr.P.C. and Section 165 .of the Indian
Evidence Act, 1872.
14. The High Court has given a detailed discourse on the
necessity to have a fair trial, as a backdrop of the rule of law as well as
for dispensation of criminal justice. Taking cognizance of so many H
998 SUPREME COURT REPORTS [2017] 11 S.C.R.

A judgments2 of this Court wherein the concept of fair trial with the sole
idea of finding the truth and to ensure that justice is done, and
extensively quoting from the said judgments, the High Court has
emphasised that free and fair trial is sine qua non of Article 21 of the
Constitution oflndia. It has also remarked that criminal justice system
is meant not only safeguarding the interest of the accused persons, but is
B
equally devoted to the rights of the victims as well. If the criminal trial is
not free and fair, then the confidence of the public in the judicial fairness
of <fjudge and the justice delivery system would be shaken. Denial to
fair trial is as much injustice to the accused as to the victim and the
society. No trial can be treated as a fair trial unless there is an impartial
C judge conducting the trial, an honest and fair defence counsel and equally
honest and fair public prosecutor. A fair trial necessarily includes fair
and proper opportunity to the prosecutor to prove the guilt of the
accused and opportunity to the accused to prove his innocence.
15. The High Court has also highlighted that the role of a judge in
D dispensation of justice, after ascertaining the true facts, is undoubtedly
very difficult one. In the pious process of unraveling the truth so as to
achieve the ultimate goal of dispensing justice between the parties, the
judge cannot keep himself unconcerned and oblivious to the various
happenings taking place during the progress of trial of any case. It is his
judicial duty to remain very vigilant, cautious, fair and impartial, and not
E to give even a slightest of impression that he is biased or prejudiced,
either due to his own personal convictions or views, in favour of one or
the other party. This, however, would not mean that the Judge will simply
shut his own eyes and be a mute spectator, acting like a robot or a
recording machine to just deliver what is fed by the parties. Although,
p the Courts are required to remain totally unstirred, unaffected and
unmoved amidst the storms and tribulations of various corrupt and
flagitious activities happening around them involving the police, the
prosecutor or the defence counsel or even the whirlwind publicity of a
high profile case which affects the public opinion and motivates media
trial, but it cannot be expected of them not to deprecate or condemn
G such misdeeds of those culprits who are hell bent to pollute the stream
of judicial process.
2 State of Maharashtra v. Dr. Pr•ful B. Desai, [(2003) 4 SCC 6011;

Zahira Habibulla H. Sheikh v. State of Gujarat, [(2004) 4 SCC 158);
Asha Ranjan v. State ofBihar, [(2017) 4 SCC 3971; and
H Ajay Singh and another v. State of Chhattisgarh, ((2017) 3 SCC 330)
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 999
& ORS. [A. K. SIKRI, J.]

16. It is not necessary to reproduce those copious quotes from A
various judgments which have been incorporated by the High Court.
However, following passage from the judgment in Ajay Singh needs
reiteration as it sums up the entire fulcrum astutely:
"Performance of judicial duty in the manner prescribed by law is
fundamental to the concept of rule of law in a democratic State. B
It has been quite often said and, rightly so, that the judiciary is the
protector and preserver of rule of law. Effective functioning of
the said sacrosanct duty has been entrusted to the judiciary and
that entrustment expects the courts to conduct the judicial
pro~eeding with dignity, objectivity and rationality and finally
determine the same in accordance with law. Errors are bound to C
occur but there cannot be deliberate peccability which can never
be countenanced. The plinth of justice dispensation system is
founded on the faith, trust and confidence of the people and nothing
can be allowed to contaminate and corrode the same. A litigant
who comes to a court of law expects that inherent and essential D
principles of adjudication like adherence to doctrine.of audi alteram
partem, rules pertaining to fundamental adjective an4 seminal
substantive law shall be followed and ultimately there shall be a
reasoned verdict. When the accused faces a charge in a court of
law, he expects a fair trial The victim whose grievance and agony
have given rise to the trial also expects that justice should be done E
in accordance with law. Thus; a fair trial leading to a judgment is
necessitous in law and that is the assurance that is thought of on
both sides. The exponent on behalf of the accused cannot be
permitted to command the trial as desired by his philosophy of
trial on the plea of fair trial and similarly, the proponent on behalf F
of the victim should not always be allowed to ventilate the .
grievance that his cause has not been fai~ly dealt with in the name
of fair trial. Therefore, the concept of expediency and fair trial is
quite applicable to the accused as well as to the victim. The result
of such trial is to end in a judgment as required to be pro.nounced
in accordance with law. And, that is how the stabilit~ of the O
credibility in the institution is maintained."
17. The High Court, thereafter, described the phenomena of hostile
witnesses which have assumed alarming proportion to the criminal justice
system in India and adversely affecting the fair trial and justice
H .
1000 SUPREME COURT REPORTS [2017] ll S.C.R.

A dispensation system. In the process, the High Court has again referred
to various judgments3 •
18. After making general remarks in respect of witnesses turning
hostile which has started happening too frequently in the cases tried in
Courts in India, including the evil of perjury which has assunied alarming
B proportions in case after case coming before the Courts, the High Court
summed up the events which took place in the instant case in the follow-
ing words:
"58. The ~acts narrated above are glaring and shocking. Right
from the day, the son of the writ applicant came to be murdered,
c 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 present factual conspectus leaves one with a choice either to
let the ongoing trial casually drift towards its conclusion with the
strong possibility of offence going unpunished or to order a retrial
D belated though, to unravel the truth, irrespective of the time that
may be consumed. As it is, every offence is a crime against the
society and is unpardonable, yet there are some species of ghastly,
revolting and villainous violation of the invaluable right to life which
leave all sensible and right minded persons of the society shell-
E shocked and traumatized in body and soul. One fails to understand
that how could 105 witnesses turn hostile ... "
19. The High Court has also mentioned about the bold and honest
stand of the CBI in this case by filing two affidavits wherein CBI had
stated that witnesses were being threatened and on account of which,
F not a single witness was ready and willing to depose.
20. In this backdrop, argument of the accused persons predicated
on Section 368 of Cr.P.C. (as noted above) is answered as follows:
"60. In the gross facts which I have highlighted, should I tell the
devastated and crestfallen father that although the trial has been
G a farce, yet the Appeal Court will look into the matter ifnecessary
in exercise of its powers under Section 386 of the Cr. P.C? It is
like telling the victim to undergo an unfair trial because there is an
Appellate Court to give him a fair hearing and the necessary relief.
3
Swaransingh v. State of Pu11jab, [AIR 2000 SC 2017] and Javed Alam v. State of
H Chhattisgarh & Am:, (2009) 6 SCC 450
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 1001
& ORS. [AK. SIKRI, J.]

Should I ask the writ applicant to adduce materials in the form of A
proof beyond reasonable doubt as regards the tampering of the
witnesses? Is the material on record not sufficient for this Court
to draw a legitimate inference that it is only on account of sheer
power and position of the main accused that the entire trial has
been reduced to a farce and could be termed as a mock trial? I B
have no hesitation in rejecting the arguments of the learned counsel
appearing for the accused persons that merely because the
witnesses turned hostile, the Court cannot order a retrial in exercise
of its extraordinary powers under Article 226 of the Constitution
. of India. A very feeble argument has been canvassed before me
that none of the witnesses complained to the Presiding Officer C
. that they· were being threatened or induced by the accused .
persons. A witness, who has been administered dire threats or
won over would never dare to utter a single word. It was for the
Presiding Officer and the prosecuting agency to look into the
matter and see to it that all the witn.esses deposed freely and D
without any fear in their mind."
21. Quoting extensively from the judgment of this Court in Ramesh ·
and others v. State of Haryana 4 wherein a serious note of witnesses
turning hostile in criminal cases has been highlighted and various reasons
noted therein making the witnesses retract their statements before Court
and turning hostile, the High Court has stated that in the instant case, the E
realistic view of the matter would demonstrate that the major cause for
turning witnesses hostile was the result of threat and intimidation. We
may mention that in para 44 of the judgment in the case of Ramesh and
others, following reasons were assigned for witnesses turning hostile:
"44. On the analysis of various cases, following reasons can F
be discerned which make witnesses retracting their statements
before the Court and turning hostile:
" ( i) Threat/intimidation.
(ii) Inducement by various means.
G
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.

'(2017) 1 sec s29
H
1002 SUPREME COURT REPORTS [2017] 11 S.C.R.

A (vi) Hassles faced by the witnesses during investigation
and trial. ·
(vii) Non-existence of any clear~cut legislation to c~eck
hostility of witness."
45. Threat and intimidation has been one of the major
B causes for the hostility of witnesses ... "
22. The High Court has commented about the present case as
under:
"63. The case on hand is not one in which the witnesses turned
c 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. The Court, therefore; is expected to deal with this type
of cases in a realistic manner and with the sensitivity which they
deserve, otherwise the common man may tend to gradually loose
D faith in the efficacy of the system of the judiciary itself, which, if
·it happens, will be a sad day for any one to reckon with one."
23. At the same time, discussing the law governing de novo trial,
the High Court has accepted the fact that such de novo trial or retrial of
the accused should be ordered in exceptional and rare cases where
E such courts becomes indispensable to avert the failure of justice. Keeping
in view this caution, the High Court proceeded to discuss the issue as to
whether such a power of directing retrial can be exercised in writ
jurisdiction. Answering this question .in affirmative, the High Court took
support of the judgment of Punjab and Haryana High Court wherein it
F had taken suo moto cognizance of a matter in which the accused persons
came to be acquitted and the State also did not prefer any appeal against
the acquittal. A news item in this regard was published in The Hindustan
Times dated November 14, 2007 on the basis of which cognizance was
taken and the Court declared trial of the accused persons to be wholly
vitiated and non est in law. While doing so, in exercise of power under
G Article 226 of the Constitution of India, the Court had explained the
contours of thiJ; power in the following words:
"33. We are conscious of the fact that in the present case, we
are essentially exercising our jurisdiction under Article 226
of the Constitution and we are not acting as an appellate
H court under the provisions of the Code of Criminal Procedure.
.1
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 1003
& ORS. [A.K. SIKRI, J.]

Tfte question that will, therefore, arise is the availahility of A
the writ power to deal with the situation and to issue necessary
and appropriate directions in the 1J1atter.
34. · The power under Article 226 of the Constitution is
incapable of a precise definition as to its contours and extent. ·
The jurisdiction under Article. 226 may require a severely B
· circumscribed exercise in a given case though, in another,
the use of the power could be wide and expansive. The extent
to which the writ power is to be exercised will depend upon
the facts ofa given case. though the ultimate objective ofsuch
; exercise would always be to secure justice and to strike at
injustice. The Courts. therefore-. will have to rise to the occasion C
or else they may fail as the learned trial Court did in the
present case. In a situation where the trial held against the
two accused clearly depicts monstrous perversities and gross
abuse ofprocess oflaw and yet no appeal against the acquittal
of the two accused had been preferred. the Court ,can remain D
a passive onlooker only at the cost of being faulted by posterity.
The exercise ofthe writ jurisdiction to interfere with the verdict
of a crimillal trial must. therefore. be made. New paths will
have to be chartered and innovations made to deal with the
myriad situations that may arise from time to time."
E
24. The High Court also referred to the decision in the case of
Ayodhya Dube v. Ram Sumer Singh 5, wherein a three-Judge Bench
of the Supreme Court, while explaining the decision in the case of K .
.Chinnaswaniy Reddy v. State of Andhra Pradesh6 observed that:
" ... we only wisnt~ say that the criminal justice system does not ·F
admifof 'pigeon hpling'. Life and the Law do not fall neatly into
slots. When a court starts laying down rules enumerated (1 ), (2),
(3), (4) or (a), (b), (c), (d), it is arranging for itself traps and pitfalls.
Categories, classifications and compartments, which statute does
not mention, all tend to make law 'less flexible, less sensible and
. less just."' G

25. Many more judgments touching upon the expansive powers
of the Constitutional Courts under Articles 3~ and 226 of the Constitution
., (1981) Supp. sec 83
6
AIR 1962 SC 1788
H
1004 SUPREME COURT REPORTS [2017] 11 S.C.R.

A of India are also cited and argument of the counsel for the accused
persons that High Court should not indict the trial court proceedings at
this stage is brushed aside with the following discussion:
"85. In view of the above, the contention canvassed on behalf of
the accused persons that the writ application under Article 226 of
B the Constitution of India seeking a retrial even before the
pronouncement of the judgment by the Trial Court is not
maintainable, is rejected. To tell the writ applicant that he should
wait for the final outcome of the trial, and ifultimately, the accused
persons are acquitted, he may file an appeal before the Appellate
Court will be nothing, but adding insult to the injury. It is a matter
c of common experience that the criminal appeal, be it one of
conviction or acquittal takes years before the same is disposed of
finally. The passage of time by itself would prove detriment to the
interest of the prosecution. It is very easy for the learned counsel
appearing for the accused persons to argue that the Trial Court
D has to yet appreciate the evidence on record and reach to an
appropriate conclusion. In my view, what is left now to appreciate
when 105 witnesses outright have been declared hostile. It is the
brazen highhandedness on the part of the accused persons which
warrants retrial. The distortion in the present case is so brazen
that even the worms turned. Ultimately, whatever may be the
E outcome of the retrial, the Court should not shut its eyes and raise
its hands in helplessness saying that what can be done. The
witnesses should also be made to realise that they cannot take
things lightly and owe a great responsibility when they are
appearing before the Court to depose in a trial where the accused
F persons are charged with a serious offence of murder. If such
would be the attitude of the Courts, the judiciary will be reduced
to a mere laughing stalk."
26. The aforesaid thought process is carried further by the High
Court while discussing another related argument of the accused persons,
G namely, the prosecuting agency could have preferred an application under
Section 311 of the Cr.P.C. for recalling of the witnesses and further that
even in an appeal, the prosecution was at liberty to pray for leading
additional evidence under Section 391 of the Cr.P.C. and, therefore, the
Court should not order retrial. This argument has also been authoritatively
and emphatically rejected with detailed discussion. We are not taking
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT JOOS
& ORS. [A.K. SIKRI, J.]

note of those details as this argument was not pressed before us by the A
counsel for the accused persons in their appeals.
27. Summing up the discussion, the High Court concluded that in
this case retrial was the only solution to prevent the miscarriage of justice.
In the process, the High Court has also directed that the Presiding Officer
who was conducting a trial should not be allowed to continue. Since, a B
plea was raised by the learned senior counsel appearing for the appellants
that the adverse remarks which are made by the High Court against the
Presiding Officer should be expunged, we are reproducing below the
observations of the High Court in this behalf:
"94. I have reached to the conclusion without any hesitation that c
retrial is the only solution to prevent the miscarriage of justice. If
ultimately retrial is to be ordered, the same should be conducted
by any other Presiding Officer because this Court has lost
confidence in the present Presiding Officer. I could have observed
many things as regards the Presiding Officer, but, for one good
reason, I have restrained myself. My observations would have D
only brought a bad name for this institution. For me, the image
and prestige of this institution and the judiciary as a whole is
supreme. It is said that the life of law is justice and it is for the
Judge to breath life into law. Men of character inspired by high
ideals are needed to infuse life and spirit in the skeleton of law. E
Let the High Court on its administrative side look into the matter." ·
28. The aforesaid discussion led to allowing the writ petition and
passing the directions for de novo trial which have already been
reproduced.
29. We have discussed the judgment of the High Court, impugned F
in these appeals, at some length, with a specific purpose in mind. It
would be relevant to point out that the arguments addressed by learned
senior counsel M/s. Mukul Rohatgi, Neeraj Kishan Kaul and N.D.
Nanavati appearing for different accused persons, were the same
arguments which were advanced before the High Court and, therefore, G
we deemed it proper to narrate the manner in which the High Court has
dealt with these arguments. Another related objective for discussing the
judgment of the High Court in some detail was that since we are in
complete agreement with the approach of the High Court in the manner
in which the issue of retrial has been dealt with in the facts of this case,
H
1006 SUPREME COURT REPORTS [2017] l 1 S.C.R.

A it would not be necessary for us to spell out and restate those very
reasons which have prevailed with the High Court.
30. We may hasten to add that normally such a retrial has to be
ordered by the Appellate Court while dealing with the validity and
correctness of the judgment of the trial court as this power is expressly
B conferred upon the Appellate Court by Section 386 of the Cr.P.C.
However, in exceptional circumstances, such 8 power can be exercised
by the High Court under Article 226 or by this Court under Article 32 of
the Constitution of India. In fact, there are judicial precedents to this
effect which have already been mentioned above. There are no shackles
to the powers of the Constitutional Court under these provisions, except
c self-imposed restrictions laid down by Courts themselves. But for that,
these powers are plenary in nature meant to do complete justice and to
inhibit travesty of justice. Therefore, we are largely in agreement with
the conclusion arrived at by the High Court to the effect that the present
case was one of those exceptional cases where possibility of witnesses
D getting hostile because of inducement or threats cannot be ruled out.
31. We are not suggesting that Mr. Solanki and his nephew are
the perso.ns responsible for the murder of Amit Jethwa. That charge
which is levelled against them and other accused persons has to be
proved in the trial by cogent evidence. We are also mindful of the principle
E that standard of proof that is required in such criminal cases is that the
guilt has to be proved beyond reasonable doubt. However, at the same
time, it is also necessary to ensure that trial is conducted fairly where
witnesses are able to depose truthfully and fearlessly. Old
adage judicial doctrine, which is the bedrock of criminal jurisprudence,
still holds good, viz., the basic assumption that an accused is innocent till
F the guilt is proved by cogent evidence. It is also an acceptable principle
that guilt of an accused is to be proved beyond reasonable doubt. Even
in a case of a slight doubt·about the guilt of the under trial, he is entitled
to benefit of doubt. All these principles are premised on the doctrine
that 'ten criminals may go unpunished but one innocent person should
G not be convicted". Emphasis here is on ensuring that innocent person
should not be convicted. Convicting innocence leads to serious flaws in
the criminal justice system. That has remained one of the fundamental
reasons for loading the processual system in criminal law with various
safeguards that accused persons enjoy when they suffer trials.
Conventional criminology has leaned in favour of persons facing trials,
H with the main objective that innocent persons should not get punished.
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 1007
& ORS. [A.K. SIKRI, J.]

32. At the same time, realisation is now dawning that other side · A
of the crime, namely, victim is also an important stakeholder in the
criminal justice and welfare policies .• The victim has, till recently,
remained forgotten actor in the crime scenario. It is for this reason that
"victim justice" has become equally important, namely, to convict the
person responsible for a crime. This not only ensures justice to the
B
victim, but to the society at large as well. Therefore, traditional
criminology coupled with deviance theory, which had ignored the victim
and was offender focussed, has received significant dent with f'ocus
shared by the discipline by victimology as well. An interest in the
·victims of the crime is more than evident n~w 7 • Researchers point out at
least three reasons for this trend. First, lack of evidence that different c
sentences had differing impact on offenders led policy-makers to
consider the possibility that crime might be reduced, or at least
constra.ined, through situational measures. This in turn led to an
emphasis on the immedfate circumstances surrounding the offence, of
necessity incorporating the role of the victim, best illustrated in a number D
of studies carried out by the Home Office (Clarke and Mayhew 1980).
Second, and in complete contrast, the developing impact of feminism in
sociology, and latterly criminology, has encouraged a greater emphasis
on women as victims, notably of rape and domestic violence, and has
more widely stimulated an interest in the fear of crime. Finally, and
perhaps most significantly, criticism of official statistics has resulted in a E
spawn of victim surveys, where sample surveys of individuals or
households have enabled considerable data to be collated on the extent
of crime and the characteristics of victims, irrespective of whether or
not crimes become known to the police. It is for this reason that in many
recent judgments rendered by this Court8 , there is an emphasis on the
need to streamline the issues relating to crime victims.
F

33. There is a discernible paradigm shift in the criminal justice
system in India which keeps in mind the interests of victims as well.
Victim oriented policies are introduced giving better role to the victims

7
S.357 A, Cr.P.C. provicjes for 'Victim Compensation Scheme' which is inserted by G
Amendment Act 5 of2009 w.e.f. 31-12-2009.
'(a) Rudul Sah v. State ofBihar; (1983) 4 SCC 141
(b) Delhi Domestic Working Women's Forum v. Union oflndia; (1995) 1 SCC 14
(c) D.K. Basu v. State of West Bengal; (1997) 1SCC416
(ct) Suresh & Anr. V. State of Haryana; (2015) 2 SCC 227.
H
1008 SUPREME COURT REPORTS [2017] ll S.C.R.

A of crime in criminal trials. It has led to adopting two pronged strategy.
On the one hand, law now recognises, with the insertion of necessary
statutory provisions, expanding role of victim in the procedural justice.
O_n the other hand, substantive justice is also done to these victims by
putting an obligation on the State (and even the culprit of crime) by
providing adequate compensation to the victims 9 • The result is that
B
private parties are now able to assert "their claim for fair trail and, thus,
an effective 'say' in criminal prosecution, not merely as a 'witness' but
also as one impacted" 10•
34. That apart, it is in the larger interest of the society that actual
perpetrator of the crime gets convicted and is suitably punished. Those
c persons who have committed the crime, if allowed to go unpunished, this
also leads to weakening of the criminal justice system and the society
starts losing faith therein. Therefore, the first part of the celebrated
dictum "ten criminals may go unpunished but one innocent should not be
convicted" has not to be taken routinely. No doubt, latter part of the
D aforesaid phrase, i.e., "innocent person should not be convicted"
remains still valid. However, that does not mean that in the process "ten
persons may go unpunished" and law becomes a mute spectator to this
scenario, showing its helplessness. In order to ensure that criminal
justice system is vibrant and effective, perpetrators of the crime should
not go unpunished and all efforts are to be made to plug the loopholes
E which may give rise to the aforesaid situation.

35. 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
F criminal justice system has to be effectiv~, 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
G 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.
°For detailed study on this aspect, see 'Victim Justice -A paradigm Shift i11 Crimi11al
Justice System i11 India'by GS. Bajpai and Shriya Gauba.
H 10 Reference as in Footnote 9 above.
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 1009
& ORS. [A.K. SIKRI, J.]

36. We are conscious of the fact that while judging as to whether A
a particular accused is guilty of an offence or not, emotions have no role
to play. Whereas, victims, or family of victims, or witnesses, may
become emotive in their testimonies, in a given case, as far as the Court
is concerned, it has to evai.::>te the evidence which comes before it
dispassionately and objectively. At the same time, it is also a fact that B
emotion pervades the law in certain respects. Criminal trials are not
allusive to the fact that many a times crimes are committed in the 'heat
of passion' or even categorised as 'hate crimes'. Emotions like anger,
compassion, mercy, vengeance, hatred get entries in criminal trials.
However, insofar as the Judge is concerned, most of these emotions
may become relevant only at the stage of punishment or sentencing, C
once the guilt is established by credible evidence, evaluated objectively
by the Court 11 • The aforesaid factors, then, become either mitigating/
extenuating circumstances or aggravating circumstances. We make it
clear that these factors have not influenced us. We also expect that the
trial court will not go by such considerations insofar as first stage is D
concerned, namely, evaluating the evidence to decide as to whether
accused persons are guilty of the offence or not. That part is to be
performed in a totally objective manner. Reason is simple. The manner
in which the murder of Amit Jethwa is committed may be cruel or
ruthless. However, in the first instance it has to be examined as to
whether the accused persons are responsible for the said murder or E
they (or some of them) are innocent.
37. Keeping in mind the aforesaid jurisprudential philosophy of
criminal law, let us examine the events and eloquent facts of this case,
with a deeper sense. A cumulative and non-disjunctive stare at those
facts would amply justify the conclusion of the High Court, and F
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 art admitted fact that the victim Amit Jethwa had filed a Public G
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
11
Though in certain circumstances, these emotions may be relevant for establishing
motive for the commission of crime. H
1010 SUPREME COURT REPORTS [2017] 11 S.C.R.

A 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.
38. After the murder of the said activist, the case was registered
with the Sola Police Station. But the investigation was lackadaisical.
B The complainant was forced to approach the High Court to seek
necessary directions for proper investigation. The High Court was
~ompelled to intervene and it transferred the investigation to an
independent investigating agency, i.e., CBI. It is only thereafter that
investigation progressed and chargesheets were filed. It also needs to
be borne in mind that soon after Mr. Solanki was released on bail,
c application for cancellation of bail was filed by the complainant with the
allegations that Mr. Solanki was extending threats to the complainant,
his family members as well as witnesses. Even some witnesses
complained to this effect. What is revealing that this application is
supported by the CBI affirming the stand of the complainant to the ef-
D feet that witnesses are threatened.
39. Trial is expedited on the directions of the Court and witnesses
start turning hostile. It is difficult to say, at least, prima facie, that in the
given scenario, the CBI, during investigation, would have compelled the
witnesses to give statements against the accused persons. In any case,
E that is also a matter to be finally tested at thetime of trial. However, it
is stated at the cost of repetition that requirement of a fair trial has to be
fulfilled. When the trial takes place, as many as 105 witnesses turn
host.ile, out of 195 witnesses examined, is so eloquent that it does not
need much effort to fathom into the reasons there for. However, when
the aforesaid facts are considered cumulatively, it compels us to take a
F view that in the interest of fair trial, at least crucial witnesses need to be
examined again.
40. Having depicted our thought process which is generally in
tune with the approach adopted by the High Court, we need to enter
caveat on two aspects:
G
(i) Whether it was a case where entire de novo trial is
necessitated?
(ii) Whether the High Court is justified in passing strictures against
the Presiding Officer of the trial court?
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 1011
& ORS. [A.K. SIKRI, J.]

41. Insofar as first aspect is concerned, it transpires that the CBI A
had stated before the High Court that de nov9 trial may not be
necessary and the purpose would be served by recalling 46 witnesses,
out of which 8 witnesses are cited as eye-witnesses. We feel that the
examination of all the witnesses once again in de novo trial may not be
appropriate in the circumstances of this case. On the order passed by B
this Court for conducting day to day trial, the trial court could record the
deposition of 195 witnesses over a period of one year. Obviously, in the
process of giving priority to this case by fixing it for ~vidence, practically
on every working day, same would have happened at the cost of
adjourning many other cases. Directing a trial court to spend this kind of
time once again is a tall order and the same purpose which is sought to C
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 D
be many officials/formal witnesses as well. Likewise, some of the
witnesses though turned hostile, their testimony may not have much
bearing. In this scenario, we had asked Mr. Nadkarni, learned ASG
who appeared for CBI to discuss the matter with CBI and on objective
and fair assessment, give the list of those witnesses afresh deposition
whereof is absolutely essential. After undertaking the aforesaid E
exercise and on instructions from CBI, Mr. Nadkarni stated that apart
from 8 eye-witnesses, 18 more witnesses need to be necessarily
examined. Out of those, 15 persons are witnesses for circumstantial
evidence and 3 are panch witnesses relating to various panchnamas.
He was categorical that when all 8 eye-witnesses are examined afresh F
along with other 18 witnesses as aforesaid, it would subserve ihe ·
purpose for which trial is reordered. Mr. Rohatgi, in response, had stated,
without prejudice to this contention that no such retrial was necessary at
all, direction should be confined to 8 eye-witnesses only if at all some
witnesses need to be re-examined. Since we have rejected the
contention of the learned counsel of the accused persons on the merits G
of the case, we are of the opinion that 26 witnesses,. list whereof was
furnished by Mr. Nadkarni ill the Court with copies to the learned
counsel for the accused persons, should be re-examined.
42. Coming to the second aspect ofremarks against the Judge, no
fault can be formed about the general observations of the High Court H
1012 SUPREME COURT REPORTS [2017) ll S.C.R.

A 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. Following general comments are made by the High Court in this
behalf:
"86. Criticizing the sharp decline of ethical values in public life
B even in the developed countries much less developing one, like
ours, where the ratio of decline is higher is not going to solve the
problem. Time is ripe for the Courts to take some positive action.
Sections 195 and 340 of the Cr. P.C. could hardly be termed as
the effective measures to combat with the menace of the witnesses
turning hostile. If the witnesses have been won over in one way
c or the other, they are bold enough to even face the prosecution
under Section 340 of the Cr. P.C. However, the same ultimately
does not serve any purpose because the guilty goes unpunished.
In the recent times, the tendency to acquit an accused easily is
galloping fast. It is very easy to pass an order of acquittal on the
D basis of minor points raised in the case by a sharp judgment so as
to achieve the yardstick of disposal. These days when crime is
looming large and humanity is suffering and society is so much
affected thereby, the duties and responsibilities of the Courts have
become much more. Now the maxim let hundred guilty persons
be acquitted, but not a single innocent be convicted' is, in practice,
E changing world over and the Courts have been compelled to accept
that the 'society suffers by wrong convictions and it equally suffers
by wrong acquittals'. 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
F important as the other. Both are public duties which the Judge has
to perform. The need of the hour is 'robust judging'. The trial
Judge is the linchpin in every case. and he has also its eyes and
ears. He is not merely a recorder of facts. but a purveyor of all
evidence. oral and circumstantial. It is said that a good trial Judge
needs to have a 'third ear' i.e. hear and comprehend what is not
G said. When a material eyewitness, one after the other start resiling
from their statements made before the police, this must obviously
excite suspicion in the mind of the trial Judge to probe further and
question the witness (even if the prosecutor does not do so).
(emphasis supplied)"
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 1013
& ORS. [A.K. SIKRI, J.]

43. At the same time, condemnation of the Presiding Officer and A
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 at other
extreme conclusions against that Presiding Officer in the absence of B
any cogent evidence against him. We were also informed that 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
{See - Awa11i Kumar Upadhyay v. High Court of Judicature of C
Allahabad and Others 12 and Amar Pal Singh v. State of Uttar Pradesh
and Another 13 }.
44. At the time of hearing, we were informed that in routine
transfers of judicial officers, the Presiding Officer who was dealing with
this matter stands transferred to another city i1\Jhe State of Gujarat. D
Therefore, it was agreed by learned counsel for tli~accused persons as
well that, for this reason alone, he ceases to be the Ptesiding Officer of
CBI, Court No. 4, Ahmedabad and, therefore, would not be dealing with
this matter in any case. But, we feel that direction to take up the matter
against him on administrative side does not seeril to be appropriate.
E
45. Accordingly, we dispose of the appeals with modification of
the direction of the High Court in respect of aforesaid two aspects. In
the first instance, instead of entire de nova 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. F

46. With this, we advert to the application filed by the complainant
for cancellation of bail. As mentioned above, application for
cancellation of bail has been filed on the ground that Mr. Solanki had
been threatening the witnesses; threats have been extended to the
complainant and his family members as well for whose protection CBI G
had written to the DGP, Gujarat and it is also stated that apprehension of
the complainant expressed earlier which can be discerned from the events
that have taken place. Coupled with that, a very pertinent and
sec 392
12 (2013) 12

'(2012) 6 sec 491
1
H
1014 SUPREME COURT REPORTS [2017] 11 S.C.R.

A significant factor is that even CBI has affirmed the aforesaid plea of the
complainant with categorical assertion that the witnesses are threat-
ened by Mr. Solanki. In this scenario, prima facie case for cancellation
of bail has been made out. In this behalf, we may usefully refer to the
following discussion in State of Bihar v. Rajballav Prasad Alias
Rajballav Prasad Yadav Alias Rajballabh' 4 :
B
"23. Keeping in view all the aforesaid considerations in mind, we
are of the opinion that it was not a fit case for grant of bail to the
respondent at this stage and grave error is committed by the High
Court in this behalf. We would like to reproduce following discussion
from the judgment in Kanwar Singh Meena v. State of Rajas than
c (SCC pp. 186 & 189, paras 10 & 18)
"10.... While cancelling bail under Section 439(2) of the Code,
the primary considerations which weigh with the court are
whether the accused is likely to tamper with the evidence or
interfere or attempt to interfere with the due course of justice
D or evade the due course of justice.But, that is not all. The High
Court or the Sessions Comt can cancel bail even in cases where
the order granting bail suffers from serious infirmities resulting
in miscarriage of justice. If the court granting bail ignores
relevant materials indicating prima facie involvement of the
accused or takes into account irrelevant material, which has no
E relevance to the question of grant of bail to the accused, the
High Court or the Sessions Court would be justified in cancelling
the bail. Such orders are against the well-recognised principles
underlying the power to grant bail. Such orders are legally infirm
and vulnerable leading to miscarriage of justice and absence of
F supervening circumstances such as the propensity of the
accused to tamper with the evidence, to flee from justice, etc.
would not deter the court from cancelling the bail. The High
Court or the Sessions Court is bound to cancel such bail orders
particularly when they are passed releasing accused involved
in heinous crimes beca4se they ultimately result in weakening
G the prosecution case and have adverse impact on the society.
Needless to say that though the powers of this Court are much
wider, this Court is equally guided by the above principles in the
matter of grant or cancellation of bail.
***
H "c2011) 2 sec 11s
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 1015
& ORS. [A.K. SIKRI, J.]

18. Taking an overall view of the matter, we are of the opinion A
that in the interest of justice, the impugned order granting bail
to the accused deserves to be quashed and a direction needs to
be given to the police to take the accused in custody."
24. As indicated by us in the beginning, prime consideration before
us is to protect the fair trial and ensure that justice is done. This B
may happen only ifthe witnesses are able to depose without fear,
freely and truthfully and this Court is convinced that in the present
case, that can be ensured only if the respondent is not enlarged on
bail. This importance of fair trial was emphasised in Panchanan
Mishra v. Digarnbar Mishra, while setting aside the order of
the High Court granting bail in the following terms: (SCC pp. 147- C
48, para 13)
"13. We have given our careful consideration to the rival
submissions made by the counsel appearing on either side. The
object underlying the cancellation of bail is to protect the fair trial
and secure justice being done to the society by preventing the D
accused who is set at liberty by the bail order from tampering
with the evidence in the heinous crime and if there is delay in
such a case the underlying object of cancellation of bail practically
loses all its purpose and significance to the greatest prejudice and
the interest of the prosecution. It hardly requires to be stated that. E
once a person is released on bail in serious crimirial cases where
the punishment is quite stringent and deterrent, the accused in
order to get away from the clutches of the same indulge in various
activities like tampering with the prosecution witnesses, threatening
the family members of the deceased victim and also create
problems of law and order situation.'' F

25. Such sentiments were expressed much earlier as well by the
Court in Talab Haji Hussain v. Madhukar Purshottarn Mondkar
in the following manner: (AIR p. 379, para 6)
"6. . .. There can be no more important requirement of the G
ends of justice .than the uninterrupted progress of a fair trial;
and it is for the continuance of such a fair trial that the inherent
powers of the High Courts are sought to be invoked by the
prosecution in cases where it is alleged that accused persons,

.H
1016 SUPREME COURT REPORTS [2017] 11 S.C.R.

A either by suborning or intimidating witnesses, are obstructing
the smooth progress of a fair trial. Similarly, if an accused person
who is released on bail jumps bail and attempts to run to a
foreign country to escape the trial, that again would be a case
where the exercise of the inherent power would be justified in
order to compel the accused fo,-submit to a fair trial and not to
B
escape its consequences by taking advantage of the fact that
he has been released on bail and by absconding to another
country. In other words, if the conduct of the accused person
subsequent to his release on bail puts in jeopardy the progress
of a fair trial itself and if there is no other remedy which can be
c effectively used against the accused person, in such a case the
inherent power of the High Court can be legitimately invoked."
47. In this hue, we need to examine as to whether purpose can be
served by banning the entry of Mr. Solanki in the city of Gujarat. It was
passionately argued by Mr. Rohatgi that during the period aforesaid
D witnesses are examined, Mr. Solanki can be barred from entering Gujarat.
He even offered that Mr. Solanki would remain in Delhi during that
period. In normal circumstances, we would have accepted this suggestion
of Mr. Rohatgi. For examining this argument, we have to keep in mind
the principle laid down by this Court in Masroor v. State of Uttar Pradesh
and Another 15 , expressed in the following words:
E
"15. There is no denying the fact that the liberty of an individual
is precious and is to be zealously protected by the courts.
Nonethdess, such a protection cannot be absolute in every
situation. The valuable right of liberty of an individual and the
interest of the society in general has to be balanced. Liberty of a ,-
F person accused of an offence would depend upon the exigencies
of the case. It is possible that in a given situation, the collective
interest of the community may outweigh the right of personal liberty
of the individual concerned. In this context, the following
observations of this Court in Shahzad Hasan Khan v. Ishtiaq
G Hasan Khan are quite apposite: (SCC p. 691, para 6)
"6 .... Liberty is to be secured through process of law, which
is administered keeping in mind the interests of the accused,
the near and dear of the victim who lost his life and who feel

H 'c2009) 14 sec 2s6
1
DINUBHAI BOGHABHAI SOLANKI v. STATE OF GUJARAT 1017
& ORS. [A.K. SIKRI, J.]

helpless and believe that there is no justice in the world as also A
the collective interest of the community so that parties do not
lose faith in the institution and indulge in private retribution."

We, thus, require to adopt a balancing approach which takes care
of right ofliberty of Mr. Solanki as an undertrial and at the same time the
interest of the society in general, viz., the fair trial is also fulfilled. B

48. 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, we are of the opinion that in order to ensure that there is a C
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., We,
therefore, dispose of Criminal Miscellaneous Petition No. 14006 of2015
with the following directions: ·
D
a) Bail granted to Mr. Solanki by this Court vide order dated
February 25, 2014 stands cancelled for the time being. He
shall be taken into custody and shall remain in custody during
the period eight eye-witnesses are re-examined .
•
b) The trial court shall summon 26 witnesses who are to be E
examined afresh. In the first instance, 8 eye-witnesses shall
be summoned and examined on day to day basis. Once their
depositions in the form of examination-in-chief and
cross-examination are recorded, Mr. Solanki shall be released
on bail again on the same terms and conditions on which he F
was granted bail earlier by this Court by order dated February
25, 2014. After Mr. Solanki comes out on bail, there shall be
an additional condition, namely, till the recording and completion
of the statements of other witnesses, he shall not enter the
State of Gujarat. To put it clearly, after Mr. Solanki is released
on bail, he shall immediately move out of the State of Gujarat G
and shall not enter the said State till the completion of remaining
evidence, except on the days of hearing when he would be
appearing in the court. It will be open to the trial court to add
any further conditions, if the circumstances so warr~nt.
H
1018 SUPREME COURT REPORTS [2017] ll S.C.R,

A c) The trial court shall also endeavour to record the remaining
evidence as well as expeditiously as possible by conducting
the trial on day to day basis.

49. Appeals and applications stand disposed of in the aforesaid
terms.
B

Devika Gujral Appeals disposed of.