Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 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 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 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 court under the provisions of the Code of Criminal Procedure. .1 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 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 a passive onlooker only at the cost of being faulted by posterity. The exercise of the 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."
24. The High Court also referred to the decision in the case of Ayodhya Dube v. Ram Sumer Singh5, 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 admif of '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."'
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 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: c "85. In view of the above, the contention canvassed on behalf of the accused persons that the writ application under Article 226 of 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 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 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 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 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 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 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. 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 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, 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, c [2017] l 1 S.C.R. 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 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 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 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 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 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.
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 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 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 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 c 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 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.
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 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. c [2017] ll S.C.R. 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 victims9• The result is that 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 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 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 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 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 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. 10 Reference as in Footnote 9 above.
36. We are conscious of the fact that 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 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 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, once the guilt is established by credible evidence, evaluated objectively by the Court11 • 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 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 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 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 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. 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. c
38. After the murder of the said activist, the case was registered with the Sola Police Station. 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 ~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, 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 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: (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?
41. Insofar as first aspect is concerned, it transpires that the CBI 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 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 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 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 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 c [2017) ll S.C.R. 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 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 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 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, 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 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 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)"
43. 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 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 Another13 }.
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. 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.
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.
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 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 12(2013) 12 sec 392 1'(2012) 6 sec 491 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 c Rajballav Prasad Yadav Alias Rajballabh'4: "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 (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 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 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 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 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. "c2011) 2 sec 11s 18. Taking an overall view of the matter, we are of the opinion 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 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- 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 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.'' 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 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 c 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 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 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 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 Another15, expressed in the following words: "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 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 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 1'c2009) 14 sec 2s6 helpless and believe that there is no justice in the world as also 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.
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: · 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 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 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 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. [2017] ll S.C.R, c) The trial court shall also endeavour to record the remaining terms. 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 Devika Gujral Appeals disposed of.