Dinubhai Boghabhai Solanki vs State Of Gujarat & Ors

2. The facts leading to the filing of the special leave petition out of which the present criminal appeal arises are as under:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 :-

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:

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.

February 25, 2014.