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Adverse remarks against the Accused in his absence by High court and Bail Application – to M.P. in Murder case – Apex court not set aside the Adverse remarks as the high court gave clarification and also made only to come to a conclusion for transferring a case to CBI but observed that the trail court should not give an weight to the remarks of High court and allowed bail on conditions = Dinubhai Boghabhai Solanki …Appellant VERSUS State of Gujarat & Ors. …Respondents = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41248

Adverse remarks against the Accused in his absence by High court and Bail Application – to M.P. in Murder case – Apex court  not set aside the Adverse remarks  as the high court gave clarification and also made only to come to a conclusion for transferring a case to CBI but observed that the trail court should not give any weight to the remarks of High court and allowed bail on conditions =


Mr. Rohatgi emphasized that  the  judgment  is  replete  with

           prejudicial remarks. He has been described as a  person  with

           criminal antecedents. He is stated to have been involved  and

           named in several  police  complaints  and  FIRs  for  serious

           offences, including attempt to murder and  murder.  The  High

           Court  has  also  observed  that  many  offences  have   been

           committed at the behest of the appellant. But almost all such

           complaints and FIRs have terminated  in  summary  reports.  A

           long list of the cases in which the appellant has been  found

           to be not involved was placed before the High Court. The High

           Court has further observed that the crusade of  the  deceased

           Jethwa against the illegal empire of the appellant herein was

           the cause for the murder  of  Jethwa.  The  High  Court  also

           observed  that  the  appellant  herein   was   managing   the

                              entire investigation.  The police did  not

           even  record  the  statements  of  numerous  persons  as  the

           statements would have  pointed  an  accusing  finger  at  the

           appellant for being responsible  for  the  death  of  Jethwa.

           Relying on the observations recorded  in  the  judgment,  Mr.

           Rohatgi  submits  that  unless  the  same  are  expunged  the

           appellant cannot possibly expect a fair trial.

 Ultimately, the High Court records the following conclusion:

              “All the above circumstances put together indicated that  the

              investigation was controlled from the  stage  of  registering

              the FIR and only the clues provided by  the  accused  persons

              themselves were investigated to close  the  investigation  by

              filing charge-sheet  No.158  of  2010  dated  10.11.2010  and

              further investigation had not served any purpose.  Therefore,

              the investigation with the lapses and  lacunae  as  also  the

              unusual acts of omission and commission did not and could not

              inspire confidence. It may not be  proper  and  advisable  to

              further critically examine the charge sheet already submitted

              by the police, as some of the  accused  persons  are  already

              arrested and shown as accused persons and even chare  is  yet

              to be framed against them. The facts and averments  discussed

              in paragraph 6 and  7  hereinabove  also  amply  support  the

              conclusion that the investigation all throughout was far from

              fair, impartial independent or prompt.”

 

      56.   This conclusion also only records the reasons which  persuaded

      the High Court to transfer the investigation to CBI. No  categorical

      findings are recorded about the involvement of the appellant in  the

      crime of conspiracy. In fact, the High Court is well aware that  the

      observations have been made only for the limited purpose of reaching

      an appropriate conclusion as to whether the investigation  had  been

      conducted impartially.  The  High  Court  has  itself  clarified  as

      follows :

           “In the facts and for the reasons discussed  hereinabove,  while

           concluding that the investigation into murder of the son of  the

           petitioner was far from fair, independent, bona fide or  prompt,

           this court refrains  from  even  remotely  suggesting  that  the

           investigating  agency  should  or  should  not  have   taken   a

           particular line of investigation  or  apprehended   any  person,

           except  in  accordance  with  law.  It  is  clarified  that  the

           observations made herein are only for  the  limited  purpose  of

           deciding whether further investigation was required to be handed

           over to CBI, and they shall not be construed as expression of an

           opinion on any particular aspect of  the  investigation  carried

           out so far.”

 

 

      57.   After recording the aforesaid clarification,  it  was  noticed

      that the investigation  is  being  transferred  to  CBI  to  instill

      confidence of the general public in the  investigation,  keeping  in

      mind the seriousness of the case having far reaching implications.

      58.   Although we have not  expunged  any  of  the  adverse  remarks

      recorded by the High Court, we emphasize that the trial court should

      keep in mind that any observations made by the High Court, which may

      appear to be adverse to the Appellant, were  confined  only  to  the

      determination of the issue as to whether the investigation is to  be

      transferred to CBI. Undoubtedly, the trial of the  accused  will  be

      conducted unaffected and  uninfluenced  by  any  of  the  so  called

      adverse remarks of the High Court.

      59.   For the reasons stated above, we see  no  merit  in  both  the

      appeals and the same are hereby dismissed.

 

keeping in view  the  fact  that  the  CBI  has

      submitted the supplementary  charge-sheet  and  that  the  trial  is

      likely to take a long time, we deem it appropriate  to  enlarge  the

      petitioner-appellant on bail, subject to the following conditions:

      (i) On his furnishing personal security in the sum of      Rs.5 lacs

      with  two  solvent  sureties,  each  of  the  like  amount,  to  the

      satisfaction of the trial court.

      (ii) The petitioner-appellant shall appear  in  Court  as  and  when

      directed by the court.

      (iii) The petitioner-appellant shall make himself available for  any

      further investigation/interrogation by the CBI as and when required.

(iv) The petitioner-appellant 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.

      (v) The petitioner-appellant  shall  not  leave  India  without  the

      previous permission of the trial court.

      (vi)  In  case  the  petitioner-appellant  is  in  possession  of  a

      passport, the same shall be deposited with the  trial  court  before

      being released on bail.

62.   The trial court shall be at liberty to add/impose any  further

      condition(s) as it deems necessary, in addition to the aforesaid.

63. The Criminal Misc. Petition is allowed in the aforesaid terms.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41248

SURINDER SINGH NIJJAR, A.K. SIKRI

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.492 OF 2014
(Arising out of SLP (Crl.) No. 8406 of 2012)
Dinubhai Boghabhai Solanki …Appellant
VERSUS
State of Gujarat & Ors. …Respondents
WITH
CRIMINAL APPEAL NO. 493 OF 2014
(Arising out of SLP (Crl.) No. 8292 of 2012)

 
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. This special leave petition impugns the judgment and order
dated 25th September, 2012 passed by the Gujarat High Court
at Ahmedabad in Special Criminal Application No.1925 of 2010.
By the aforesaid judgment, the High Court has directed that
the investigation into the death of Amit Jethwa (hereinafter
referred to as ‘Jethwa’), a Right to Information activist be
investigated by the CBI authorities and further directing
that the proceedings pursuant to the charge sheet submitted
by the Gujarat Police shall remain stayed.
2. The facts leading to the filing of the special leave petition
out of which the present criminal appeal arises are as under:
Jethwa had filed a Public Interest Litigation, SCA No.7690 of
2010, against the State of Gujarat and others with the following
prayer:
“The appellant therefore prays that your Lordship may be pleased
to:
a. Admit this petition.
b. Issue a writ of mandamus or writ in the nature of mandamus or
any other appropriate writ order or direction directing the
respondents to stop illegal mining within 5 kms radius from
boundary of Gir Sanctuary.”
3. In the aforesaid writ petition, Jethwa had given details of
various activities of certain firms and individuals who were
indulging in illegal mining and destroying the biodiversity
of natural habitat of Gir forest in Gujarat. This, according
to Jethwa, was having an adverse effect on the natural
habitat of the Asiatic Lions. He was particularly concerned
with illegal mining within 5 kms radius from the boundary of
Gir Sanctuary Area. More than 50 mines in the names of
different persons were mentioned in the writ petition wherein
illegal mining was alleged. Enquiry into the allegations
made by Jethwa was in progress in the aforesaid writ
petition, when he was brutally murdered.
4. Jethwa was the President of the Gir Nature Youth Club at
Khamba, Gujarat. He had been active in fighting against
encroachment of forests and poaching. He was also
instrumental in the successful prosecution of the actor
Salman Khan for shooting an endangered Chinkara deer. He had
also taken up cudgels against the actor Aamir Khan when a
deer was used in a scene in the movie Lagaan. Apart from
this, Jethwa rigorously campaigned against corruption among
officers of the Indian Forest Service and opposed the mala
fide application of Article 356 of the Constitution of India.
In 2007, he had drawn attention to
the mysterious death of lions in the Gir Forest,
including three that were shot within a few hundred meters of
the Babariya forest guard outpost. Jethwa had claimed that
“such a thing cannot be possible without support of some
forest officials”. On that basis, he had sought suspension of
a particular IFS Officer. The incident ultimately led to the
uncovering of a large lion poaching gang. He later campaigned
against shifting of lions to the Kuno Wildlife Sanctuary in
Madhya Pradesh. According to him, his efforts were often
blocked by forest officials by charging him with offences
such as photographing a dead lion and trespassing. In 2007,
Jethwa contested the State Assembly elections against the
appellant herein, but lost. In 2008, Jethwa was very actively
involved in spreading awareness about effectiveness of the
Right to Information Act for addressing grievances, and
conducted workshops on the procedure to file requests under
RTI, to prevent corrupt practices and other mal-
administration. In 2010, Jethwa had filed a Public Interest
Litigation (writ petition) questioning the inaction of State
Government over the appointment of Lokayukta. The High Court
directed the Government to appoint Lokayukta. He had also
spearheaded the campaign against rising case pendency in the
Gujarat Information Commission due to lack of commissioners.
It was on his petition that the High Court gave direction to
the State Government to complete the appointments within a
stipulated time. He again came to the rescue of RTI
applicants by filing a writ petition in the High Court and
made the Government accept Indian Postal Order as one of the
modes of payment to deposit fees while filing the Right to
Information applications.
5. We have narrated these facts just to indicate that Jethwa was
a well known social activist interested in the protection of
environment, generally and the biodiversity of Gir Forest, in
particular. This, according to him, was urgently needed to
protect the Asiatic Lions, apart from usual environmental
issues.
6. During the pendency of the public interest litigation filed
by Jethwa, the name of the appellant and his nephew emerged
as the powers behind the illegal mining mafia. Therefore, by
order dated 6th July, 2010, the appellant and his nephew
Pratap Bhai Solanki were impleaded by the High Court as
respondents. The order dated 6th July, 2010 was served on the
appellant on 19th July, 2010.

7. It is the allegation of the father of Jethwa (hereinafter
referred to as ‘Respondent No.6’) that the appellant was so
incensed on being made a party in the Public Interest
Litigation filed by Jethwa and the information that had
surfaced during the course of hearing of that writ petition
that he contracted/conspired with some unknown persons to
eliminate Jethwa. In pursuance of this conspiracy, Jethwa was
shot dead on the very next day, i.e. 20th July, 2010.
8. According to the appellant, on the same date, i.e 20th
July, 2010, the electronic media began broadcasting
allegations of the Respondent No. 6 and some other interested
parties that the appellant was behind the killing of Jethwa.
Incidentally, it must be noticed at this stage that according
to the version of Respondent No.6, the murder took place
outside the Gujarat High Court whilst Jethwa was leaving the
chambers of his lawyer at 8.30 at night. In fact, the Press
Statement was given on 21st July, 2010 by Dhirsinh Barad, a
rival Congress MLA that the appellant might be involved in
the murder. Subsequently, when the statement of this MLA was
recorded in the High Court on 26th February, 2012, wherein he
has stated that on 20th July, 2010 he had
communicated to Shri B.M.Mangukia, Advocate who incidentally
was also a Secretary of Gujarat Congress, that as per his
belief the appellant was involved in the murder of Jethwa.
The investigation was conducted in accordance with the
procedure prescribed in the Criminal Procedure Code.
9. It appears that the Respondent No 6 was not satisfied and he
filed Special Criminal Application No.1925 of 2010 before the
High Court. In this petition, Respondent No.6 sought transfer
of the investigation in connection with FIR No. I-CR
No.163/2010 dated 20th July, 2010 registered at Sola Police
Station for commission of offences punishable under Sections
302, 114 of IPC read with Section 25(1) of Arms Act, to an
independent investigating agency, preferably CBI or Special
Investigation Team comprising IPS Officers from other State
cadre as well. On 19th October, 2011, the Gujarat High Court
passed the interim order directing further investigation to
be conducted by the State of Gujarat under the supervision of
Special Commissioner of Police Crime Branch (of the rank of
Additional Director General of Police) and to submit a final
report of investigation by 28th November, 2011. In passing
the aforesaid order, it is pointed out by the appellant
herein that, no adverse remarks with any pre-drawn
conclusions were made against him.
10. In pursuance of the aforesaid order, the investigation was
handed over, on 11th November, 2011, to another officer, Shri
Vatsa, Superintendent of Police. The final report was
submitted on 16th March, 2012 under Section 173(8) Cr.P.C. It
was pointed out by the appellant that nothing beyond mere
suspicion had come on the record against the appellant so as
to make him accused of any conspiracy to assassinate the
deceased Jethwa. On 19th March, 2012, the final report of
further investigation was filed before the High Court on
behalf of the State Government. The appellant claims that in
spite of extensive investigation, no circumstantial evidence
pointing out any involvement of the appellant was gathered,
despite the grave suspicion of the relatives of Jethwa and
certain political rivals. However, due to the pressure
exerted by the relatives of the deceased and certain
political rivals, a third charge-sheet was filed in the FIR.
11. In the order impugned before us, the High Court upon
consideration of the entire matter has come to the conclusion
that investigation conducted by the Gujarat Police authority
is not free from doubt and that to instill confidence in the
public, it would be appropriate to transfer the investigation
to CBI.
12. The present SLP was filed in this Court on 8th October,
2012. Notice was issued in the SLP on 15th October, 2012. The
investigation by the CBI was not stayed. The State of Gujarat
had filed SLP (Crl.) NO.8292 of 2012 also challenging the
transfer of the investigation to CBI. This SLP was
filed on 15th October, 2012. We may also notice here that
Narendra Modi, who was then holding the portfolio of Home
Ministry in Gujarat as well as being the Chief Minister, was
also impleaded as appellant No.2 in SLP (Crl.) 8292 of 2012.
However, subsequently, he was deleted from the array of
parties, by order of this Court dated
9th November, 2012.
13. Leave granted.

14. Mr. Rohatgi, learned senior counsel appearing for the
appellant after making extensive references to the relevant
parts of the impugned judgment has submitted that the High
Court has made unwarranted remarks against the appellant
which are bound to gravely prejudice his case at the trial.
These remarks have been made in the absence of the appellant.
The High Court did not make him a party; and has given an ex-
parte judgment against the appellant. It is per se illegal
and, therefore, deserves to be set aside. He submits that
the matter has to be remanded back to the High Court with the
direction that the appellant be made a party in Writ Petition
SCA No.1925 of 2010. Thereafter the writ petition be re-heard
and decided on merits in accordance with law.

15. Mr. Rohatgi then submitted that the appellant had been
summoned to appear as a witness before the CBI. Apprehending
that the appellant will be arrested as soon as he appears
before the CBI in response to the summons,
Criminal Misc. Petition No.22987 of 2013
was filed by him seeking direction from this Court that the
appellant will not be arrested in case he appears before the
CBI. The actual prayer made in the Application was that this
Court be pleased to “grant stay of any coercive action
against the appellant prejudicing his life and personal
liberty, pursuant to the impugned ex part judgment dated
25.09.2012 passed by the Gujarat High Court in SCA 1925 of
2010 wherein CBI was inter alia directed to investigate and
file report within 6 months.” This Court did not accept the
prayer made by the appellant. As apprehended by the
appellant, he was immediately arrested, when he appeared
before the CBI, in response to the summons to join the
investigation.

16. This action of the CBI, according to Mr. Rohatgi, was wholly
illegal. The appellant had been cooperating with the
investigation throughout. The arrest of the appellant was
politically motivated.
17. On 17th April, 2013, Status Report of the investigation by
the CBI was produced before this Court by
Mr. Sidharth Luthra, learned Additional Solicitor General.
After perusal of the report, the court directed the same to
be re-sealed and kept with the record. The matter was
adjourned from time to time to enable the CBI to complete the
investigation. Since his arrest, the appellant was initially
remanded to police custody. Subsequently, however, he was
placed in judicial custody. The appellant continues to be in
jail till date. On 19th November, 2013 when the matter came
up for further consideration, a submission was made on behalf
of the CBI that “although the appellant is now not required
for custodial interrogation, judicial custody needs to be
continued as the investigation is still not complete.” A
request was made that the matter be adjourned for at least
six weeks to enable the CBI to complete the investigation in
relation to the appellant. Since the appellant had been in
custody for a long time, it was prayed that he should be
released from custody. It was pointed out that the appellant
was required to perform his official duties as an elected
member of the Parliament. However, the request of the
appellant was rejected and CBI was granted some more time to
complete the investigation. It was made clear by this Court
that the aforesaid direction would not preclude the CBI to
seek custodial interrogation of the appellant, as and when
required. Thereafter, the matter was adjourned from time to
time.
18. Mr. Rohatgi then submitted that in breach of the directions
issued by this Court on 17th April, 2013, the CBI has filed a
supplementary charge sheet in January, 2014, before the ACJM,
Ahmedabad, instead of placing the report before this Court in
a sealed cover. Relying on these facts, Mr. Rohatgi has
submitted that the action of the CBI is in disobedience of
this order of this Court, and therefore, the charge sheet
itself needs to be set aside, as it has been filed without
the permission of this Court.
19. Mr. Rohatgi then submitted that in case the aforesaid
submissions are not accepted, the prejudicial remarks made
against the appellant need to be expunged as the remarks have
been made without making him a party. He submitted that the
remarks have damned the appellant as the main conspirator.
Such adverse remarks, according to Mr. Rohatgi,
can have no legal effect, having been made in breach of the
Rules of Natural Justice i.e. the rule of audi alteram
Partem. He pointed out that the appellant has also been
referred to as accused No.1, without any justification.
20. Mr. Rohatgi emphasized that the judgment is replete with
prejudicial remarks. He has been described as a person with
criminal antecedents. He is stated to have been involved and
named in several police complaints and FIRs for serious
offences, including attempt to murder and murder. The High
Court has also observed that many offences have been
committed at the behest of the appellant. But almost all such
complaints and FIRs have terminated in summary reports. A
long list of the cases in which the appellant has been found
to be not involved was placed before the High Court. The High
Court has further observed that the crusade of the deceased
Jethwa against the illegal empire of the appellant herein was
the cause for the murder of Jethwa. The High Court also
observed that the appellant herein was managing the
entire investigation. The police did not
even record the statements of numerous persons as the
statements would have pointed an accusing finger at the
appellant for being responsible for the death of Jethwa.
Relying on the observations recorded in the judgment, Mr.
Rohatgi submits that unless the same are expunged the
appellant cannot possibly expect a fair trial.
21. Mr. Rohatgi has relied on the following judgments in support
of his submission.
Divine Retreat Centre Vs. State of Kerala[1]; D.
Venkatasubramaniam Vs. M. K. Mohan Krishnamachari[2]; State
of Punjab Vs. Davinder Pal Singh Bhullar & Ors.[3]; Ms.
Mayawati Vs. Union of India & Ors.[4]; Union of India Vs.
W.N.Chadha[5].
22. Lastly, it is submitted by Mr. Rohatgi that the appellant has
been firstly in police custody and subsequently in judicial
custody since the arrest on 5th November, 2013 till now. The
appellant is a sitting Member of the Parliament and has to
perform his duties as an MP in the Parliament, as well as his
Constituency. The appellant has been cooperating with the
investigation throughout. There is no likelihood of the
appellant absconding as he has deep roots in society,
particularly in the area that is represented by him as an MP
in the Parliament. Learned senior counsel further submitted
that although CBI has filed the charge sheet, copies of all
the statements of witnesses have not been made available to
the appellant, on the ground that it is a very sensitive
matter. According to Mr. Rohatgi, the CBI has wrongly relied
on Section 173(6) of the Cr.P.C. He reiterated that the
arrest of the appellant was totally illegal as it is in
disobedience of the orders passed by this Court on 15th
March, 2013; 10th April, 2013 and 17th April, 2013. He has
also reiterated the submission that the appellant has been
arrested maliciously as a result of political vendetta. Mr.
Rohatgi also submitted that apprehending the arrest, the
appellant had moved Criminal Misc. Petition No. 22987 of
2013, but this Court had declined to give any directions.
23. He also pointed out that the appellant has been elected as
Member of Legislative Assembly, Gujarat for three terms.
Thereafter, the appellant has successfully contested the
Parliamentary election as an official candidate of the BJP.
Therefore, as it was found by his political rivals that the
appellant cannot be destabilized by a popular vote, he is
being dragged into this case to cause maximum damage to his
image and political career. Mr. Rohatgi further pointed out
that the timing of issuance of summons by the CBI coincided
not only with the Diwali festival but, also with the ensuing
Parliamentary election, as well as the assembly election
which had been declared in five States. He submitted that the
appellant, therefore, reasonably apprehends that the
opposition is trying to maliciously gain maximum political
mileage, by getting him involved in the murder case.
24. Learned senior counsel further pointed out that on the one
hand, the family of the appellant was grieving due to the
death of his elder brother on 8th October, 2013; on the other
hand, the letter of the CBI dated 25th October, 2013 was
handed over to his younger brother asking the appellant to
remain present on 29th October, 2013 at
11.00 a.m. before the Investigating Officer. The family
members of the appellant on the date of the filing of the
application, i.e. 28th October, 2013, were occupied with the
after-death ceremonies of his deceased brother. At the same
time, immediately with the issuance of the summons by the
CBI, adverse media trial and propaganda had started in
various news channels and the Newspapers against the
appellant. It is also pointed out by Mr. Rohatgi that the CBI
has commenced the investigation in October 2012 and since
then the appellant has continued to be in active public life.
He has also attended Parliament as a Member of the Parliament
in the 13th, 14th and 15th Session of the Lok Sabha held on
4th September, 2013, 5th September, 2013 and 6th September,
2013. The appellant has also participated in various public
welfare functions during this period. In spite of the
aforesaid, the appellant has been illegally deprived of his
personal liberty and fundamental rights under Articles 14 and
21 of the Constitution of India. He reiterated that the
appellant had made a prayer in Crl. M.P. No.
22987 of 2013 that no coercive steps be taken against the
appellant. Since the prayer made by the appellant was not
accepted, the CBI used this as an excuse to arrest the
appellant. Given the entire fact situation as narrated above
and the fact that the appellant has not been given copies of
all the statements collected by the CBI, there is little
likelihood of the appellant tampering with the evidence.
Since the CBI has submitted the charge sheet, the
investigation is complete. Therefore, it would be in the
interest of justice that the appellant is now released on
bail, during the pendency of the trial.
25. Mr. J.S. Attri, learned senior counsel, appearing for the
CBI has submitted that the status report has been submitted
to this Court. Upon completion of the investigation, the
charge sheet has also been submitted in court. It is further
submitted that there is no violation of the orders dated 15th
March, 2013, 10th April, 2013 and the order dated 17th April,
2013, which directed that the report produced by the
Additional Solicitor General be sealed and kept with the
record. There is no direction to the CBI not to file the
charge sheet without leave of the court.
26. Ms. Kamini Jaiswal appearing for respondent No.6 has
submitted that the question as to whether the appellant was
required to be heard before the investigation is transferred to the
CBI is no longer res integra. She submitted that the State
hierarchy was actively involved in influencing the investigation by
the State Police, which is evident from the fact that Mr. Narendera
Modi was Appellant No.2 in Criminal Appeal No. _______@ SLP (Crl.)
No.8292 of 2012. He was subsequently deleted from the array of
parties by an order of this Court. His removal from the array of
parties makes no difference. Ms. Jaiswal has submitted that in fact
the appellant has no locus standi to file the present appeal. At
the most, according to her, he is a proposed accused or a suspect.
She submits that it is a settled proposition of law and criminal
jurisprudence that an accused has no right to be heard at the stage
of investigation. The appellant in the present case is a potential
suspect. Therefore, he has no locus standi to challenge the
judgment of the High Court, transferring the investigation to the
CBI in exercise of its powers under Section 173(8) of the Cr.P.C.
She submits that the High Court has come to a prima facie
conclusion that the original investigation and the further
investigation are far from satisfactory. Both investigations lacked
transparency and, therefore, the Court has rightly concluded that
the investigation conducted by the State Police did not inspire
confidence. She submits that the High Court has committed no error
in not making the appellant a party in the writ petition filed by
respondent No.6 seeking transfer of the investigation from the
State Police and the Special Commissioner, Crime Detection Branch,
Ahmedabad to the CBI. The rule of audi alteram partem would not be
applicable at that stage. She submits that the investigation has to
be conducted in accordance with Sections 154 to 176 of the Cr.P.C.,
wherein no provision is made for the applicability of the concept
of audi alteram partem. In other words, at no stage till the charge
sheet is submitted the suspect or proposed accused can claim any
constitutional or legal right to be heard. In support of her
submissions, she relied on the judgment of this Court in W. N.
Chadha (supra), Central Bureau of Investigation & Anr. Vs. Rajesh
Gandhi & Anr.[6], Sri Bhagwan Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj Vs. State of A.P. & Ors.[7], Narender G. Goel
Vs. State of Maharashtra & Anr.[8] She also relies on the judgment
in the case of Divine Retreat (supra).
27. She further submitted that even though the High Court has
given elaborate details in support of the conclusions to transfer
the investigation to CBI, it does not mean that the remarks were
not necessary for coming to such a conclusion. She submits that the
facts in this case were glaring. Jethwa has relentlessly campaigned
against illegal mining within the prohibited 5 km zone of the Gir
Forest Sanctuary. This sanctuary is the only habitat of the Asiatic
Lions. Jethwa had managed to uncover a deep rooted conspiracy to
continue illegal mining in the prohibited zones. He was in
possession of evidence which would have directly linked the
appellant to the illegal mining. The appellant and his nephew were
impleaded as parties in the public interest litigation, SCA No.7690
of 2010 by order dated 6th July, 2010. The aforesaid order was
served on the appellant on 19th July, 2010. Within 24 hours Jethwa
was killed whilst he was coming out of the chamber of his lawyer.
28. She further pointed out that a perusal of the judgment of the
High Court would show that the investigation conducted by the State
Police and subsequent further investigation was wholly tainted and
one sided. Therefore, the High Court had rightly transferred the
case to the CBI. She further submitted that the remarks made by the
High Court were wholly justified for coming to the conclusion that
the investigation must be transferred to the CBI to inspire
confidence.
29. She next submitted that the investigation has been completed
and the charge sheet has been filed. The appellant will have full
opportunity to defend himself at the trial. She submitted that the
present appeal deserves to be dismissed as having become
infructuous.

30. Lastly, she submitted that although the appellant is an MP he
is involved in several criminal cases. His influence is so
pervasive that he has been declared to be innocent in all the other
criminal cases, excepting one. It is only in the present case that
he is sought to be put on trial. She has submitted that even the
nephew of the appellant Shiva Solanki was only arrested on 7th
September, 2010; he had been absconding for 45 days whilst the
investigation was in progress. The further investigation conducted
by Sh. Vatsa, IPS, Superintendent of Police has been found to be
tainted by the Court. The High Court found that the facts stated by
Sh. Vatsa in the final report did not inspire confidence as it did
not even point out the close proximity of Shiva Solanki and the
appellant. These reports also point out the interaction between the
uncle and nephew before and after the crime. In fact, Vatsa never
applied for custodial interrogation of the appellant. She further
submitted that the High Court noticed that the police man who is
the first informant can not be an eye witness to the incident.
Surprisingly, the FIR was not recorded at the instance of any
member of his family. She submits that the High Court has correctly
come to the conclusion that the initial and further investigations
suffered from so many lapses and lacunae that it could not possibly
inspire confidence.
31. Opposing the prayer for bail, Ms. Jaiswal submitted that the
appellant is a very powerful person, not only because he is an MP,
but because he is a kingpin in the criminal mafia operating within
the Gir Sanctuary which is meant for protection of the Asiatic
Lions, apart from many other rare species of animal life as well as
flora and fauna. In case, he is allowed out on bail the appellant
is most likely to put pressure on the prosecution witnesses and
weaken the case of the prosecution. She submits that the family of
the deceased is entitled to the satisfaction that the brazen murder
of the deceased was not only fairly investigated, but also a fair
trial was conducted. She further submitted that earlier application
of the bail of the appellant having been dismissed by the trial
court no special treatment could be given to the appellant. His
application for bail in this Court is not maintainable.
32. Mr. Rohatgi in reply has submitted that Narendra Modi had
been made appellant No.2 by mistake. The mistake was corrected and
his name was deleted from the array of parties on 9.11.2012 by the
order of this Court. His name is unnecessarily being mentioned in
these proceedings.
33. We have considered the submissions made by the learned counsel
for the parties.
34. Before we examine the submissions made by the learned counsel
for the parties, it would be appropriate to notice the various
authorities cited by them. In Divine Retreat Centre (supra), this
Court held that considering the question as to whether even the
High Court can set the law in motion against the named and unnamed
individuals based on the information received by it without
recording the reasons that the information received by it prima
facie disclosed the commission of a cognizable offence. This Court
observed that “the High Court in exercise of its whatsoever
jurisdiction cannot direct investigation by constituting a special
investigating team on the strength of anonymous petitions. The High
Court cannot be converted into station houses.” The observations
made in para 51, on which heavy reliance has been placed by Mr.
Rohatgi, show that the High Court had sought to turn the Divine
Retreat Centre into an accused on the basis of an anonymous
complaint in exercise of its power under Section 482. Keeping in
view the peculiar facts of that case, it is observed as follows :
“54. Here is a case where no information has been given to the
police by any informant alleging commission of any cognizable
offence by the appellant and the persons associated with the
appellant institution. It is a peculiar case of its own kind
where an anonymous petition is sent directly in the name of a
learned Judge of the Kerala High Court, which was suo motu taken
up as a proceeding under Section 482 of the Code. The High Court
ought not to have entertained such a petition for taking the
same on file under Section 482 of the Code.”

 
35. It was for the aforesaid reason that this Court observed as
follows:
“51. The order directing the investigation on the basis of such
vague and indefinite allegations undoubtedly is in the teeth of
principles of natural justice. It was, however, submitted that
the accused gets a right of hearing only after submission of the
charge-sheet, before a charge is framed or the accused is
discharged vide Sections 227 and 228 and 239 and 240 CrPC. The
appellant is not an accused and, therefore, it was not entitled
for any notice from the High Court before passing of the
impugned order. We are concerned with the question as to whether
the High Court could have passed a judicial order directing
investigation against the appellant and its activities without
providing an opportunity of being heard to it. The case on hand
is a case where the criminal law is directed to be set in motion
on the basis of the allegations made in anonymous petition filed
in the High Court. No judicial order can ever be passed by any
court without providing a reasonable opportunity of being heard
to the person likely to be affected by such order and
particularly when such order results in drastic consequences of
affecting one’s own reputation. In our view, the impugned order
of the High Court directing enquiry and investigation into
allegations in respect of which not even any
complaint/information has been lodged with the police is
violative of principles of natural justice.”
36. These observations would not be applicable in the facts of
this case. The criminal law has not been set in motion on the basis
of an anonymous complaint. The investigation has been transferred
to the CBI, in a petition under Article 226 of the Constitution
filed by none other than the father of the victim who suspects that
his son was murdered at the instance of the appellant herein. The
facts have been elaborately narrated by the High Court as well as
by us. It is apparent that the fact situation in Divine Retreat
Centre is wholly distinguishable from the present case.
37. In D.Venkatasubramaniam (supra), again this Court was
concerned with the erroneous exercise of its inherent powers under
Section 482, Cr. P.C. by the High Court. This Court reiterated the
observations made in Divine Retreat Centre (supra). It was inter
alia observed as follows :
“34. The High Court in the present case, without realising the
consequences, issued directions in a casual and mechanical
manner without hearing the appellants. The impugned order is a
nullity and liable to be set aside only on that score.
35. We are not impressed by the submission made by the learned
counsel for the respondent that the High Court did not issue any
directions but merely disposed of the petition with the
observations reminding the police of its duty. The question that
arises for consideration is whether there was any occasion or
necessity to make those “observations” even if they are to be
considered to be observations and not any directions. It is not
even remotely suggested that there was any deliberate inaction
or failure in the matter of discharge of duties by the police.
There was no allegation of any subversion of processes of law
facilitating the accused to go scot-free nor is there any
finding as such recorded by the High Court in its order.”

38. From the above, it becomes apparent that the High Court had
passed the order in a mechanical manner. Further more, it was not
even remotely suggested that there was any deliberate inaction or
failure in the matter of discharge of duties by the police. In the
present case, the appellant before the High Court was none other
than the father of the deceased. It was a cry for justice made by a
person whose son has been brazenly murdered. Failure of the High
Court to take notice on such a plea, in our opinion, would have
resulted in injustice to the father of the victim who was only
seeking a fair and impartial investigation into the circumstances
leading to the murder of his son. The petition has been filed by
the father seeking redressal of the grievance under Articles 14, 21
and 226 of the Constitution of India. The father of the deceased
had filed the petition on the grounds that the State is under the
obligation to ensure the rule of law. It was stated that the rule
of law can be maintained only by fair, impartial and independent
investigation by the law and order enforcement agency, in every
reported incidents of commission of offence. It was emphatically
stated that the investigation into the murder of Jethwa was not
taking place independently and impartially due to extra-legal and
extraneous considerations. The Respondent No.6, father of the
murdered victim, had prayed before the High Court that his right to
equality before the law guaranteed by Article 14 of the
Constitution of India was being violated as the appellant herein
was being protected by the investigating agency because he is a
member of Parliament, and he belongs to the political party that
was in power in the State. In the light of the aforesaid, the ratio
of judgment in D. Venkatasubramanium (supra), in our
opinion, is also not applicable in the facts of this case.
39. Davinder Pal Singh Bhullar (supra) is a very peculiar case.
This Court examined a situation where the High Court suo motu re-
opened the proceedings which had been closed, and the High Court
had become functus-officio. This Court after noticing the peculiar
fact situation, observed as follows:
“The impugned order dated 5.10.2007 though gives an impression
that the High Court was trying to procure the presence of the
proclaimed offenders but, in fact, it was to target the police
officers, who had conducted the inquiry against Mr. Justice X.
The order reads that particular persons were eliminated in a
false encounter by the police and it was to be ascertained as to
who were the police officers responsible for it, so that they
could be brought to justice.”

 
40. Clearly, therefore, in such circumstances this Court struck
down the directions. This Court also notices that although the
proceedings before the High Court were ostensibly to procure the
presence of the proclaimed offenders but in essence it was an
enquiry to ascertain as to who were the police officers responsible
for certain false encounters. It is well settled that the Court
cannot order a roving enquiry and direct the investigation to be
carried out by the CBI without any basis. This court was dealing
with the cases where the investigators of the crime were sought to
be converted into accused. Such are not the circumstances in the
present case. Thus, the reliance placed upon Davinder Pal Singh
Bhullar’s case (supra) is misplaced.
41. In the case of Ms. Mayawati (supra), the question raised in
the writ petition filed under Article 32 of the Constitution of
India was as to whether the FIR registered against the appellant
therein to investigate into the matter of alleged disproportionate
assets of the appellant and other officers was beyond the scope of
the directions passed by this Court in the order dated 18th
September, 2003 in M.C.Mehta Vs. Union of India. Upon the
examination of the entire situation, it was held by this Court that
the FIR registered against the appellant therein was beyond the
directions issued by this court in M.C.Mehta and, therefore, was
without authority of law.

42. Undoubtedly, the essence of criminal justice system is to
reach the truth. The underlying principle is that whilst the guilty
must not escape punishment; no innocent person shall be punished
unless the guilt of the suspect/accused is established in
accordance with law. All suspects/accused are presumed to be
innocent till their guilt is proved beyond reasonable doubt in a
trial conducted according to the procedure prescribed under law.
Fair, unbiased and transparent investigation is a sine quo non for
protecting the accused. Being dissatisfied with the manner in which
the investigation was being conducted, the father of the victim
filed the petition seeking an impartial investigation.
43. Now we shall consider the judgments cited by
Ms. Kamini Jaiswal.
44. In W.N.Chadha (supra), the High Court had quashed and set
aside the order passed by the Special Judge, in-charge of CBI
matters issuing the order rogatory, on the application of a named
accused in the FIR, Mr. W.N.Chadha.
The High Court held that the order issuing letter rogatory was
passed in breach of principles of natural justice. In appeal, this
Court held as follows :-
“89. Applying the above principle, it may be held that when the
investigating officer is not deciding any matter except
collecting the materials for ascertaining whether a prima facie
case is made out or not and a full enquiry in case of filing a
report under Section 173(2) follows in a trial before the Court
or Tribunal pursuant to the filing of the report, it cannot be
said that at that stage rule of audi alteram partem superimposes
an obligation to issue a prior notice and hear the accused which
the statute does not expressly recognise. The question is not
whether audi alteram partem is implicit, but whether the
occasion for its attraction exists at all.”
“92. More so, the accused has no right to have any say as
regards the manner and method of investigation. Save under
certain exceptions under the entire scheme of the Code, the
accused has no participation as a matter of right during the
course of the investigation of a case instituted on a police
report till the investigation culminates in filing of a final
report under Section 173(2) of the Code or in a proceeding
instituted otherwise than on a police report till the process is
issued under Section 204 of the Code, as the case may be. Even
in cases where cognizance of an offence is taken on a complaint
notwithstanding that the said offence is triable by a Magistrate
or triable exclusively by the Court of Sessions, the accused has
no right to have participation till the process is issued. In
case the issue of process is postponed as contemplated under
Section 202 of the Code, the accused may attend the subsequent
inquiry but cannot participate. There are various judicial
pronouncements to this effect but we feel that it is not
necessary to recapitulate those decisions. At the same time, we
would like to point out that there are certain provisions under
the Code empowering the Magistrate to give an opportunity of
being heard under certain specified circumstances.”
“98. If prior notice and an opportunity of hearing are to be
given to an accused in every criminal case before taking any
action against him, such a procedure would frustrate the
proceedings, obstruct the taking of prompt action as law
demands, defeat the ends of justice and make the provisions of
law relating to the investigation lifeless, absurd and self-
defeating. Further, the scheme of the relevant statutory
provisions relating to the procedure of investigation does not
attract such a course in the absence of any statutory obligation
to the contrary.”
These observations make it abundantly clear that it would not
be necessary to give an opportunity of hearing to the proposed
accused as a matter of course. The court cautioned that if prior
notice and an opportunity of hearing have to be given in every
criminal case before taking any action against the accused person,
it would frustrate the entire objective of an effective
investigation. In the present case, the appellant was not even an
accused at the time when the impugned order was passed by the High
Court. Finger of suspicion had been pointed at the appellant by
independent witnesses as well as by the grieved father of the
victim.
45. In Rajesh Gandhi’s case (supra), this Court again reiterated
the law as follows :
“8. There is no merit in the pleas raised by the first
respondent either. The decision to investigate or the decision
on the agency which should investigate, does not attract
principles of natural justice. The accused cannot have a say in
who should investigate the offences he is charged with. We also
fail to see any provision of law for recording reasons for such
a decision…………….There is no provision in law under which, while
granting consent or extending the powers and jurisdiction of the
Delhi Special Police Establishment to the specified State and to
any specified case any reasons are required to be recorded on
the face of the notification. The learned Single Judge of the
Patna High Court was clearly in error in holding so. If
investigation by the local police is not satisfactory, a further
investigation is not precluded. In the present case the material
on record shows that the investigation by the local police was
not [pic]satisfactory. In fact the local police had filed a
final report before the Chief Judicial Magistrate, Dhanbad. The
report, however, was pending and had not been accepted when the
Central Government with the consent of the State Government
issued the impugned notification. As a result, the CBI has been
directed to further investigate the offences registered under
the said FIR with the consent of the State Government and in
accordance with law. Under Section 173(8) of the CrPC 1973 also,
there is an analogous provision for further investigation in
respect of an offence after a report under sub-section (2) has
been forwarded to the Magistrate.”
The aforesaid observations would clearly support the course
adopted by the High Court in this matter. We have earlier noticed
that the High Court had initially directed that the investigation
be carried under the supervision of the Special Commissioner of
Police, Crime Branch, of the rank of the Additional Director
General of Police. It was only when the High Court was of the
opinion that even further investigation was not impartial, it was
transferred to the CBI.
46. Again in Sri Bhagwan Samardha (supra), this Court observed as
follows :
“10. Power of the police to conduct further investigation, after
laying final report, is recognised under Section 173(8) of the
Code of Criminal Procedure. Even after the court took cognizance
of any offence on the strength of the police report first
submitted, it is open to the police to conduct further
investigation. This has been so stated by this Court in Ram Lal
Narang v. State (Delhi Admn.)1. The only rider provided by the
aforesaid decision is that it would be desirable that the police
should inform the court and seek formal permission to make
further investigation.
11. In such a situation the power of the court to direct the
police to conduct further investigation cannot have any
inhibition. There is nothing in Section 173(8) to suggest that
the court is obliged to hear the accused before any such
direction is made. Casting of any such obligation on the court
would only result in encumbering the court with the burden of
searching for all the potential accused to be afforded with the
opportunity of being heard. As the law does not require it, we
would not burden the Magistrate with such an obligation.”
These observations also make it clear that there was no
obligation for the High Court to either hear or to make the
appellant a party to the proceedings before directing that the
investigation be conducted by the CBI.
47. We had earlier noticed that the High Court had come to the
prima facie conclusion that the investigation conducted by the
police was with the motive to give a clear chit to the appellant,
inspite of the statements made by the independent witnesses as well
as the allegations made by the father of the deceased. The legal
position has been reiterated by this Court in the case of Narender
G. Goel (supra):
“11. It is well settled that the accused has no right to be
heard at the stage of investigation. The prosecution will
however have to prove its case at the trial when the accused
will have full opportunity to rebut/question the validity and
authenticity of the prosecution case. In Sri Bhagwan Samardha
Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P.
this Court observed: (SCC p. 743, para 11)
“11. … There is nothing in Section 173(8) to suggest that
the court is obliged to hear the accused before any such
direction is made. Casting of any such obligation on the
court would only result in encumbering the court with the
burden of searching for all the potential accused to be
afforded with the opportunity of being heard.”
12. The accused can certainly avail himself of an opportunity to
cross-examine and/or otherwise controvert the authenticity,
admissibility or legal significance of material evidence
gathered in the course of further investigations. Further in
light of the views expressed by the investigating officer in his
affidavit before the High Court, it is apparent that the
investigating authorities would inevitably have conducted
further investigation with the“ aid of CFS under Section 173(8)
of the Code.
13. We are of the view that what is the evidentiary value can be
tested during the trial. At this juncture it would not be proper
to interfere in the matter.”
48. Again in the case of Narmada Bai (supra), this Court after
reviewing the entire body of case law concluded as follows :
“64. The above decisions and the principles stated therein have
been referred to and followed by this Court in Rubabbuddin
Sheikh1 where also it was held that considering the fact that
the allegations have been levelled against high-level police
officers, despite the investigation made by the police
authorities of the State of Gujarat, ordered investigation by
CBI. Without entering into the allegations levelled by either of
the parties, we are of the view that it would be prudent and
advisable to transfer the investigation to an independent
agency. It is trite law that the accused persons do not have a
say in the matter of appointment of an investigation agency. The
accused persons cannot choose as to which investigation agency
must investigate the alleged offence committed by them.”
49. We may also notice here the observations made by this Court
in Mohd. Anis Vs. Union of India[9], wherein this Court held as
follows :
“5. … Fair and impartial investigation by an independent agency,
not involved in the controversy, is the demand of public
interest. If the investigation is by an agency which is
allegedly privy to the dispute, the credibility of the
investigation will be doubted and that will be contrary to the
public interest as well as the interest of justice.” (SCC p.
148, para 5)
“2. … Doubts were expressed regarding the fairness of the
investigation as it was feared that as the local police was
alleged to be involved in the encounters, the investigation
by an officer of the U.P. Cadre may not be impartial.” (SCC
p. 147, para 2)”
50. At this stage, we would like to reiterate the well known
principles on the basis of a previous judgment can be treated as a
precedent. The most important principles have been culled out by
this Court in Bank of India & Anr. Vs. K.Mohandas & Ors.[10] as
follows:
“54. A word about precedents, before we deal with the aforesaid
observations. The classic statement of Earl of Halsbury, L.C. in
Quinn v. Leathem, is worth recapitulating first: (AC p. 506)
“… before discussing … Allen v. Flood and what was decided
therein, there are two observations of a general character
which I wish to make, and one is to repeat what I have very
often said before, that every judgment must be read as
applicable to the particular facts proved, or assumed to be
proved, since the generality of the expressions which may be
found there are not intended to be expositions of the whole
law, but are governed and qualified by the particular facts
of the case in which such expressions are to be found. The
other is that a case is only an authority for what it
actually decides. I entirely deny that it can be quoted for a
proposition that may seem to follow logically from it. Such a
mode of reasoning assumes that the law is necessarily a
logical code, whereas every lawyer must acknowledge that the
law is not always logical at all.”
(emphasis supplied)
This Court has in long line of cases followed the aforesaid
statement of law.
55. In State of Orissa v. Sudhansu Sekhar Misra9 it was
observed: (AIR p. 651, para 13)
“13. … A decision is only an authority for what it actually
decides. What is of the essence in a decision is its ratio
and not every observation found therein nor what logically
follows from the various observations made in it.”
56. In the words of Lord Denning:
“Each case depends on its own facts and a close similarity
between one case and another is not enough because even a
single significant detail may alter the entire aspect. In
deciding such cases, one should avoid the temptation to
decide cases (as said by Cardozo) by matching the colour of
one case against the colour of another. To decide, therefore,
on which side of the line a case falls, the broad resemblance
to another case is not at all decisive.”
57. It was highlighted by this Court in Ambica Quarry Works v.
State of Gujarat: (SCC p. 221, para 18)
“18. … The ratio of any decision must be understood in the
background of the facts of that case. It has been said long
time ago that a case is only an authority for what it
actually decides, and not what logically follows from it.”
58. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. this
Court held that a little difference in facts or additional facts
may make a lot of difference in the precedential value of a
decision.
59. This Court in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani
emphasised that the courts should not place reliance on
decisions without discussing as to how the factual situation
fits in with the fact situation of the decision on which
reliance is placed. It was further observed that the judgments
of courts are not to be construed as statutes and the
observations must be read in the context in which they appear to
have been stated. The Court went on to say that circumstantial
applicability, one additional or different fact may make a world
of difference between conclusions in two cases.”

 
51. Keeping in view the aforesaid principles, we are constrained
to hold that the ratio of the judgment cited by the appellant would
not be applicable in the facts and circumstances of this case.
52. We can now proceed to examine the factual situation in the
present case.
53. We are not much impressed by the submissions made by Mr.
Rohtagi that the High Court has unnecessarily cast aspersions of
criminality on the appellant. In Paragraph 10 of the judgment, the
High Court has observed as follows:-
“All the above circumstances put together indicated that the
investigation was controlled from the stage of registering
the FIR and only the clues provided by the accused persons
themselves were investigated to close the investigation by
filing Charge-sheet No.158 of 2010 dated 10.11.2010 and further
investigation had not served any purpose. Therefore, the
investigation with the lapses and lacunae as also the unusual
acts of omission and commission did not and could not inspire
confidence. It may not be proper and advisable to further
critically examine the charge-sheet already submitted by the
police, as some of the accused persons are already arrested and
shown as accused persons and even charge is yet to be framed
against them. The facts and averments discussed in paragraphs 6
and 7 hereinabove also amply support the conclusion that the
investigation all throughout was far from fair, impartial,
independent or prompt.”

 
54. In coming to the aforesaid conclusion, the High Court has
relied on the following factors:-
a) Prima facie, the deceased son of respondent No.6 was an
RTI activist and sole appellant in the PIL, being SCA No.
7690 of 2010, wherein two persons were, recently before
the murder, joined as respondents and one of them is
already accused of the offence under Sections 302 and 120-
B of IPC. The High Court also recorded that it is
nobody’s case that the deceased victim of the offence was
a blackmailer or a busybody. He was interested in
spreading public awareness about environmental issues and
taking legal remedies for preventing environmental
degradation, particularly in and around the reserved
forest and Gir Sanctuary.
b) The High Court then notices that according to the FIR,
the deceased was killed at 20.40 hours on 20.7.2010 and
the FIR was registered at 22.06 hours. Although the FIR
itself mentioned address of the deceased and his mobile
phone was also found on the spot, no effort was made to
either inform any member of his family available nearby
or call them to the police station before registration of
the FIR through police personnel. The High Court notices
that these facts would clearly strengthen the suspicion
of respondent No.6 that the relatives and acquaintances
of the deceased were deliberately prevented from naming
anyone even as a suspected perpetrator of the crime in
the FIR.
c) Again the High Court, by making a reference to the FIR,
has prima facie concluded that it seems to have been
registered under the advice and guidance of the higher
officers, who were present at the police station. The
High Court also notices from the affidavit of
Superintendent of Police, Mr. Vatsa that even during the
further investigation, he was required to continuously
inform and brief Mr. Mohan Jha as his supervisory officer
and Special Police Commissioner, Crime Branch, Ahmedabad.
The High Court, therefore, formed an opinion that Mr.
Mohan Jha continued to guide and control even the further
investigation, which had been conducted on the directions
of the High Court. The High Court also notices that Mr.
Kundaliya who was in charge of the investigation, had
recorded statements of father, wife, brothers, mother and
friends of the deceased. These persons had given specific
names of the suspects, but no arrests were made. In fact
the investigation did not appear to have made any
progress. It was only after the order was passed by the
High Court in a Public Interest Litigation on 02.08.2010,
transferring the investigation that arrests began to be
made. The High Court then recorded “However, although,
name of Mr.DB was mentioned as the main suspect in at
least 8 statements recorded till then and threats
received by the deceased were also mentioned, he was
neither approached for interrogation nor any notice was
issued under Section 160 of Cr.P.C.”. The High Court
then notices that efforts were made by the persons, who
were arrested, to make statements to absolve the
appellant of being involved in the conspiracy to kill
Jethwa. From this, the High Court concluded “thus the
progress of investigation clearly indicated that the
investigators were relying more on the statements of the
arrested person than the statements recorded earlier of
the relatives and acquaintances of the deceased. Even
while filing the charge-sheet, statements dated 22.7.2010
and 28.7.2010 of independent and important witnesses,
such as, learned advocate Mr. Anand Yagnik and Mr.
Kanaksinh Parmar respectively were not annexed with the
charge-sheet”. The High Court then notices the contents
of case diary in which it is recorded that on 20.08.2010,
the news about the police being in search of Shiva
Solanki were leaked in advance and spread through media
and telecast, even then he could not be located in spite
of enquiring into various secret sources and informants.
d) The High Court also notices that on 16.8.2010, when the
High Court ordered the transfer of the investigation, one
of the main accused persons namely Bahadursinh D. Vadher,
was arrested and had practically dictated in great detail
his motive, plan, execution and sufficiency of resources
for arranging the elimination of Jethwa, without ever
mentioning the name of Shiva Solanki. His statements
were recorded everyday from 18th to 30th August, 2010.
During the course of custodial interrogation, on 19th
August, 2010, he added that he had decided with Shiva
Solanki to kill Amit Jethwa for which Shiva was to
provide the money. Thereafter, the High Court makes a
very important observation which is as follows:-
“Although nothing can be treated or held to be
proved at this stage, the sequence of events and
the statements clearly indicated that even the
name of Shiva Solanki was being introduced in a
careful and planned manner with leakage of
sensitive information for the public including
others involved in the offence”.
This observation clearly shows that all the observations
were tentative, prima facie, to adjudge only the issues,
as to whether the State Police had conducted a fair and
unbiased investigation. No opinion is recorded, even
prima facie of the guilt or otherwise of the appellant
in the offence of conspiracy to murder Jethwa. It
appears to us that the apprehension of the appellant
that any of the observations made by the High Court
would influence the trial are without any basis.
e) The High Court further notices that when Shiva Solanki
was arrested on 07.09.2010, his statements with a
matching version were recorded everyday from 07.09.2010
to 20.09.2010 with details of his decision and
understanding with Bahadursinh to kill Amit Jethwa of his
own motive and resources. But not once these accused
persons appeared to have been asked even one question
about the involvement of the appellant. In fact Shiva is
stated to have clarified that, no one else was informed
about his understanding with Bahadursinh.
f) The High Court further notices that statement of
appellant was recorded on 16.9.2010 when he claimed not
only complete innocence but ignorance about even the
activities of the deceased and the difficulties caused by
him. In fact he urged for independent and deeper probe
of the offence.
g) The High Court then records the conclusion that this line
of interrogation substantiates the submission that the
investigating agency was following the clues offered by
the arrested persons rather than the other independent
information given by the father and witnesses. Taking
into consideration all the aforesaid facts, the High
Court concluded that “the statements of Mr.DB recorded
after apparently solving the mystery of the murder
clearly appeared to be an empty formality at the
convenience and invitation of Mr.DB. A fair, proper and
prompt investigation in case of such a crime, by an
ordinary police officer, would have inspired immediate
custodial interrogation of the prime suspects; but in the
facts of the present case, the investigating officer
practically remained clueless for first 25 days after the
murder and then suddenly, with first arrest and first
statement of the arrestee on the first day of
investigation, the case was practically solved”. Here
again, the conclusion of the High Court is in the context
of the impartiality of the investigation. The same cannot
be construed as any definite or even a prima facie
conclusion as to the guilt of the appellant.
h) The High Court thereafter notices that the first person
arrested was not named by any witnesses in any statement
recorded till his arrest. The High Court, therefore,
states that it is not clear “How that first arrestee, not
named till then by any witness or in any statement
recorded till his arrest, was identified as a suspect and
arrested on 16.8.2010 itself after the order to transfer
the investigation, is not clear. By a curious
coincidence, the complainant who dictated the FIR under
supervision of so-many higher officers and the first
arrestee who offered complete solution to the
investigating agency in his first statement before a
special branch of the police, both happened to be serving
police personnel serving under the higher officers under
whom the investigation could otherwise hardly make any
headway for 25 days.” The High Court then notices the
following facts “At both important points of registering
and cracking the case, the common factor also was the
same higher officer Mr. Mohan Jha, then in-charge of the
City Crime Branch. He also supervised the further
investigation as Special Commissioner of Police, Crime
Branch, by virtue of a special order issued in this
regard by the Director General of Police”.
i) On the basis of the numerous facts narrated in the
judgment, the High Court concluded that “there was
sufficient material to substantiate the submission that
the State police was controlling the investigation rather
than carrying it out in a fair, impartial and prompt
manner.” The High Court also concluded that the
aforesaid facts would “lend credence to the allegation
that the accused persons and the prime suspect had such
influence in the higher echelons of police-power, that
the officers of the lower ranks would not dare to
displease them.” These observations again are general and
were clearly necessary to state and to support the
conclusion reached by the High Court that the
investigation conducted by the State police was
unsatisfactory and biased. Again no further conclusion
has been recorded about the guilt of any of the suspects,
let alone the appellant, in particular.
j) The High Court thereafter notices the relationship of the
appellant with Shiva Solanki and observed “The averments
made by Mr.R.Vatsa, who conducted the further
investigation, as related in Para 6 herein, did not
inspire confidence insofar as close proximity of Shiva
Solanki and Mr.DB and their interaction inter se before
and after the crime, even to the extent discovered during
the investigation, would have led an honest investigation
to conclusions and inferences quite contrary to those
drawn by the officer. He only made a weak attempt in
proving his sincerity by applying for custodial
interrogation of some of the accused and that attempt was
simply smothered by the opinion of the District
Government Pleader, as aforesaid.”
k) The High Court further concludes that where no one
appears to be an eye witness to firing on the deceased,
not only the persons alleged to have assaulted the
deceased, but identity of the persons who would have
strong motive for eliminating the deceased ought to have
been fully or properly investigated. Instead, the
prosecution relied mainly on the persons, who were
already arrested and practically stopped at them in spite
of the order for carrying out further investigation in
light of the averments and allegations made in the
petition.
l) In our opinion, the High Court has only noticed the facts
which tend to show that the investigation had not been
conducted impartially and fairly. Although, the
appellant is mentioned on a number of occasions, no
specific conclusion is reached that the appellant was
responsible for influencing or controlling the
investigation. In fact, the finger is pointed only
towards the higher echelons of the police, who seem to
have been under the influence of the accused persons.
Mention of the appellant as the prime suspect is not a
conclusion reached by the High Court. Appellant has been
referred to as the prime suspect in all the allegations
made in the writ petitions and the statements of the
relatives including the statement of the father of the
deceased. Therefore, in our opinion, by recording the
gist of the allegations made, the High Court has not
committed any error of jurisdiction.
m) Mr. Rohtagi has pointed out that the High Court has also
recorded that since the appellant and his nephew were
living together in a joint family and, therefore, must
have conspired to kill Jethwa. The statement recorded by
the High Court is as under:
“It has come on record that Mr.Shiva Solanki and
Mr.DB were living together in a joint family and
no investigator could have been easily satisfied
with the statements that they did not interact in
respect of the conspiracy to commit a capital
crime, particularly when both of them were
simultaneously joined as respondents in the PIL.”
This, in our opinion, is not a conclusion that the appellant
and his nephew Shiva Solanki must have conspired. The submission
made by Mr. Rohtagi is not borne out from the observations quoted
above. Similarly, the conclusion recorded by the High Court that
“The incorrect statements made by Superintendent of Police Mr.
Vatsa regarding past record of Mr.DB as seen and discussed earlier
in Para 3 herein, clearly indicated an attempt at somehow shielding
the person who was the prime suspect, according to the statements
of the relatives and associates of the deceased” again only
alludes to the statements of the relatives and witnesses. It cannot
be said to be a conclusion reached by the High Court, about the
guilt of the appellant. Therefore, the conclusion cannot be said
to be unwarranted.
55. Ultimately, the High Court records the following conclusion:
“All the above circumstances put together indicated that the
investigation was controlled from the stage of registering
the FIR and only the clues provided by the accused persons
themselves were investigated to close the investigation by
filing charge-sheet No.158 of 2010 dated 10.11.2010 and
further investigation had not served any purpose. Therefore,
the investigation with the lapses and lacunae as also the
unusual acts of omission and commission did not and could not
inspire confidence. It may not be proper and advisable to
further critically examine the charge sheet already submitted
by the police, as some of the accused persons are already
arrested and shown as accused persons and even chare is yet
to be framed against them. The facts and averments discussed
in paragraph 6 and 7 hereinabove also amply support the
conclusion that the investigation all throughout was far from
fair, impartial independent or prompt.”

56. This conclusion also only records the reasons which persuaded
the High Court to transfer the investigation to CBI. No categorical
findings are recorded about the involvement of the appellant in the
crime of conspiracy. In fact, the High Court is well aware that the
observations have been made only for the limited purpose of reaching
an appropriate conclusion as to whether the investigation had been
conducted impartially. The High Court has itself clarified as
follows :
“In the facts and for the reasons discussed hereinabove, while
concluding that the investigation into murder of the son of the
petitioner was far from fair, independent, bona fide or prompt,
this court refrains from even remotely suggesting that the
investigating agency should or should not have taken a
particular line of investigation or apprehended any person,
except in accordance with law. It is clarified that the
observations made herein are only for the limited purpose of
deciding whether further investigation was required to be handed
over to CBI, and they shall not be construed as expression of an
opinion on any particular aspect of the investigation carried
out so far.”
57. After recording the aforesaid clarification, it was noticed
that the investigation is being transferred to CBI to instill
confidence of the general public in the investigation, keeping in
mind the seriousness of the case having far reaching implications.
58. Although we have not expunged any of the adverse remarks
recorded by the High Court, we emphasize that the trial court should
keep in mind that any observations made by the High Court, which may
appear to be adverse to the Appellant, were confined only to the
determination of the issue as to whether the investigation is to be
transferred to CBI. Undoubtedly, the trial of the accused will be
conducted unaffected and uninfluenced by any of the so called
adverse remarks of the High Court.
59. For the reasons stated above, we see no merit in both the
appeals and the same are hereby dismissed.
Crl. M.P. No. 23723 of 2013 :-
60. We have already noticed the submissions of the learned counsel
for the parties on this application, seeking bail in the main
judgment. The petitioner-appellant was arrested on 5th November,
2013, when he appeared before the CBI in response to the summons.
Since then the petitioner-appellant has been in custody. The
supplementary charge-sheet has been filed by the CBI in the Court of
ACJM, Ahmedabad in January, 2014. After the charge-sheet being
filed, obviously, the petitioner-appellant is no longer required for
further investigation. Mr. Rohatgi has rightly pointed out that
there is no likelihood of the petitioner-appellant tampering with
the evidence as the copies of all the sensitive statements have not
been supplied to the petitioner-appellant.

61. We are not much impressed by the submission of Mr. Rohatgi
that the petitioner-appellant ought to be released on bail simply
because he happens to be a sitting M.P., nor are we much impressed
by the fact that further incarceration of the petitioner-appellant
would prevent him from performing his duties either in the
Parliament or in his constituency. So far as the court is concerned,
the petitioner-appellant is a suspect/accused in the offence of
murder. No special treatment can be given to the petitioner-
appellant simply on the ground that he is a sitting Member of
Parliament. However, keeping in view the fact that the CBI has
submitted the supplementary charge-sheet and that the trial is
likely to take a long time, we deem it appropriate to enlarge the
petitioner-appellant on bail, subject to the following conditions:
(i) On his furnishing personal security in the sum of Rs.5 lacs
with two solvent sureties, each of the like amount, to the
satisfaction of the trial court.
(ii) The petitioner-appellant shall appear in Court as and when
directed by the court.
(iii) The petitioner-appellant shall make himself available for any
further investigation/interrogation by the CBI as and when required.
(iv) The petitioner-appellant 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.
(v) The petitioner-appellant shall not leave India without the
previous permission of the trial court.
(vi) In case the petitioner-appellant is in possession of a
passport, the same shall be deposited with the trial court before
being released on bail.
62. The trial court shall be at liberty to add/impose any further
condition(s) as it deems necessary, in addition to the aforesaid.
63. The Criminal Misc. Petition is allowed in the aforesaid terms.
Crl.M.P.No.22987 of 2013 :
64. This Crl. Misc. Petition was filed by the petitioner on
28th October, 2013, seeking stay of any coercive
action against him prejudicing his life and personal liberty,
pursuant to the judgment dated 25th September, 2012 of the Gujarat
High Court impugned in the present criminal appeals. In view of the
order passed by us in Crl. Misc. Petition No.23723 of 2013, this
Petition is dismissed as having become infructuous.

 
……………………………….J.
[Surinder Singh Nijjar]

 

 

 
………………………………..J.
[A.K.Sikri]
New Delhi;
February 25, 2014.
———————–
[1] (2008) 3 SCC 542
[2] (2009) 10 SCC 488
[3] 2012 Criminal Law Journal 1001
[4] (2012) 8 SCC 106
[5] (1993) Supp.4 SCC 260
[6] (1996) 11 SCC 253
[7] (1999) 5 SCC 740
[8] (2009) 6 SCC 65
[9] 1994 Supp (1) SCC 145
[10] (2009) 5 SCC 313

———————–
63

 

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