Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Administration of criminal justice: Order of retrial - Maintainability |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Disposed Off |
Headnote | Administration of criminal justice: Order of retrial -Maintainability of - Murder of an activist who had been co111plainingagainst the illegal mining in and around Gir Forest Sanctuary - ·The names of appellant and his nephew appeared in the said murder- The complainant, father of the activist dissatisfied with theinvestigation, approached High Court for directions for properinvestigation - High Court transferred the case to CBI - When thetrial took place, out of 195 witnesses examined, as many as 105witnesses· turned hostile - Complainant approached High Courtseeking de novo trial - By impugned order, High Court directed denovo trial of the case in exercise of writ jurisdiction under Art.226on the ground that all the important witnesses including eye-witnesses resiled from _their statements made before the police andvarious complaints were made alleging threats being administeredby the main accused-appellant as well as his accomplice - Onappeal, held: High Court was right in holding that the instant casewas one of those exceptional cases where there was possibility ofwitnesses getting hostile because of inducement or threats - Thus,. it is necessary to ensure that trial is conducted fairly where witnessesare able to depose truthfully and fearlessly - However, examinationof all the witnesses once again in de novo trial is not appropriate inthe circumstances of this case - In the interest of fair trial, at leastcrucial witnesses need to be examined again - The CBI stated thatapart from 8 eye-witnesses, 18 more witnesses need to be necessarilyexamined - Out of those, 15 persons are witnesses for circumstantialevidence and 3 are panch witnesses relating to various pane/mamas- The CBI was categorical that when all 8 eye-witnesses are examinedafresh along with other 18 witnesses, it would subserve the purposefor which trial is reordered - Thus, 26 witnesses should be re-examined - In order to ensure that there is a fair trial in literalsense of the term, at least till the time 8 eye-witnesses are re-examined, 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 toB ensure that injustice is also not meted out to any citizen - This callsfor balancing the interests of accused as well as viCtims, which inturn depends on fair trial.Code of Criminal Procedure, 1973: s.386 - Normally a retrialhas to be ordered by the Appellate Court while dealing with thevalidity and correctness of the judgement of the trial court as thispower is expressly conferred upon the Appellate Court by s.386 ofthe Cr.PC. - However, in exceptional circumstances, such a powercan be exercised by the High Court under Art.226 or by SupremeCourt under Art.32 of the Constitution of India.Strictures: Adverse remarks against the Presiding Officer -Whether High Court is justified in passing strictures against thePresiding Officer of the trial court - Held: No fault can be formedabout the general observations of the High Court about the role ofthe trial court judge who is not supposed to be a mute spectatorwhen he finds that witnesses after witnesses are turning hostile -At the same time, condemnation of the Presiding Officer and goingto the extent of damning him, albeit, in an oblique manner, may notbe justified in the facts of this case - No doubt, it was expected ofthe Presiding Judge to play more active and positive role - However,if error is committed on that front, it is also not appropriate to arriveat other extreme conclusions against that Presiding Officer in theabsence of any cogent evidence against him - The said PresidingOfficer is to retire within a couple of months, after rendering longservice of more than 30 years - The direction to take up the matteragainst him on administrative side is set aside.Bail: Cancellation of - Application by the complainant forcancellation of bail on the ground that the appellant had beenthreatening the witnesses, the complainant and his family members- Bail granted to the appellant cancelled and direction to take himinto custody and remain in custody during the period of re-examination of 8 eye-witnesses - Once their depositions in the formof examination-in-chief and cross-examination are recorded, the appellant shall be released on bail again on the same terms andconditions on which he was granted bail earlier - After the appellantcomes 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. |
Judge | Hon'ble Mr. Justice Arjan Kumar Sikri |
Neutral Citation | 2017 INSC 1063 |
Petitioner | Dinubhai Boghabhai Solanki |
Respondent | State Of Gujarat & Ors. |
SCR | [2017] 11 S.C.R. 979 |
Judgement Date | 2017-10-30 |
Case Number | 492 |
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