Supreme Court of India
DINUBHAI BOGHABHAI SOLANKIversusSTATE OF GUJARAT & ORS.
- Citation
- 2017 INSC 1063
- Decided
- 25 February 2014
- Disposal
- Disposed off
- Bench
- S S NIJJAR
Holding
A transfer of investigation to the CBI may be ordered without hearing the accused, and the High Court’s observations were limited to assessing the fairness of the state investigation and do not amount to a finding of guilt.
Summary
The father of a slain environmental activist filed a writ petition seeking transfer of the investigation into his son’s murder from the Gujarat police to an independent agency, alleging bias and protection of the accused, who was a sitting MP. The Gujarat High Court, after finding the state investigation unfair, partial and lacking confidence, ordered the case to be transferred to the CBI, noting that the appellant was not a party to the proceedings and no hearing was required. The appellant challenged the transfer, claiming the High Court’s adverse remarks would prejudice his trial and that he should have been heard before any such order. The Supreme Court held that the High Court’s observations were confined to the issue of transfer and did not constitute a finding of guilt, and that the accused has no right to be heard at the investigation stage. Consequently, the Court dismissed the appeals, upheld the transfer, and granted bail to the appellant with conditions. The Court also directed that the trial court keep in mind the High Court’s remarks but not let them influence the trial.
Issues considered
- The propriety of transferring a criminal investigation from the state police to the CBI without hearing the accused.
- Whether the High Court’s adverse observations against the appellant constitute a violation of the right to a fair trial and must be expunged.
- Whether the accused has a statutory right to be heard before a court orders a change in the investigating agency under Section 173(8) of the CrPC.
- The applicability of natural justice principles (audi alteram partem) in the context of investigation transfers.
Legislation cited
- Arms Acts. 25(1)
- Code of Criminal Procedure, 1973s. 154-176, s. 160, s. 173(8), s. 202, s. 204, s. 227, s. 228, s. 239, s. 240
- Indian Penal Code, 1860s. 114, s. 302
Subjects
transfer of investigationCBIfair investigationright to be heardnatural justiceCriminal Procedure Codebailpublic interest litigationillegal miningenvironmental activism
Judgment
[2014] 3 S.C.R. 932
A DINUBHAI BOGHABHAI SOLANKI
v.
STATE OF GUJARAT & ORS.
(Criminal Appeal No. 92 of 2014)
FEBRUARY 25, 2014
B
[SURINDER SINGH NIJJAR AND A.K.SIKRI, JJ.]
INVEST/GA TION:
c Transfer of investigation - In the instant case, a social
activist had filed PIL for stopping illegal mining in which, name
of appellant and his nephew emerged as the power behind
illegal mining mafia - They were impteaded as respondents
and served - Next day the social activist was brutally killed -
D Father of activist dissatisfied with the progress of investigation
fifed writ petition seeking transfer of investigation - High Court
initially directed further investigation to be conducted by State
under the supervision of the Special Commissioner of Police,
Crime Branch - On submission of final report, High Court
E finding that even further investigation was not impartial, by
impugned order, transferred the case to CBI - Transfer
challenged by the State - Held: 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 was brazenly
murdered - High Court recorded that all the circumstances put
F 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 and further
investigation had not served any purpose - Therefore, the
G investigation with the lapses and lacunae as a/so the unusual
acts of omission and commission did not inspire confidence
- After recording the said observation, it was noticed by High
Court that the investigation was being transferred to CBI to
instill confidence of the general public in the investigation,
H 932
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 933
GUJARAT & ORS.
keeping in mind the seriousness of the case having far A
reaching implications - No interference with the transfer of
investigation to CBI.
Transfer of investigation - Rights of accused -
Opportunity of hearing and impleadment of accused -Held: 8
Fair, unbiased and transparent investigation is a sine quo non
for protecting the accused - It is not necessary to give an
opportunity of hearing to the proposed accused as a matter
of course - If prior notice and an opportunity of hearing have
to be given in every criminal case before taking any action C
against the accused person, it would frustrate the entire
objective of an effective investigation - In the instant case,
there was no obligation for High Court to either hear or to
make appellant a party to the proceedings before directing
that the investigation be conducted by CBI.
D
Transfer of investigation - Adverse remarks recorded by
High Court while considering transfer of investigation to CBI
- Expunction of - Instant appeal by appellant challenging the
remarks maae by High Court against him in impugned order
on the ground that the said remarks would gravely prejudice E
his case at trial and praying for rehearing of writ petition and
expunction of remarks - Held: High Court observed that
investigation all throughout was far from fair, impartial,
independent or prompt - Mere mention of the appellant as the
prime suspect was not a conclusion reached by High Court - F
No categorical findings were recorded about the involvement
of the appellant in the crime of conspiracy - It was clarified in
the impugned judgment that the observations made were only
for the limited purpose of deciding whether further
investigation was required to be handed over to CBI, and they G
shall not be construed as expression of an opinion on any
particular aspect of the investigation carried out - After
recording the said clarification, it was noticed that the
investigation was being transferred to CBI to instill confidence
of the general public in the investigation, keeping in mind the H
934 SUPREME COURT REPORTS [2014] 3 S.C.R.
A seriousness of the case having far reaching implications -
Adverse remarks recorded by High Court are not expunged
- However, trial court is directed to keep in mind that any
observations made by High Court, which may appear to be
adverse to appellant, were confined only to the determination
B of the issue as to whether the investigation is to be transferred
to CBI.
ADMINISTRATION OF CRIMINAL JUSTICE: Held:
Essence of criminal justice system is to reach the truth - The
C 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.
D
BAIL: Entitlement for - In the instant case, appellant was
a"ested when he appeared before the CBI in response to the
summons - Since then he was in custody - Supplementary
charge-sheet filed by the CBI - After the charge-sheet, the
E appellant was no longer required for further investigation -
There was no likelihood of the appellant tampering with the
evidence as the copies of all the sensitive statements were
not supplied to the appellant - Keeping in view the fact that
the CBI has submitted the supplementary charge-sheet and
F that the trial is likely to take a long time, it is deemed
appropriate to enlarge the appellant on bail, subject to
conditions of furnishing personal security.
A social activist filed a PIL against the State of Gujarat
and others seeking direction to stop the illegal mining and
G destruction of biodiversity of natural habitat of Gir Forest.
During the pendency of PIL, name of the appellant and
his nephew emerged as the powers behind the illegal
mining mafia. The appellant and his nephew were
impleaded by the High Court as respondents on 6th July,
H 2010 and an order was served on the appellant on 19th
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 935
GUJARAT & ORS.
July, 2010. On 20th July, 2010, the activist who had filed A
PIL was brutally killed. The investigation was conducted.
Dissatisfied with the progress of investigation, the
father of the activist, respondent no.6 filed Special
Crimrnal Application before the High Court wherein he
8
sought transfer of the investigation to an independent
investigating agency. The High Court passed interim
order directing further investigation to be conducted by
the State of Gujarat under the supervision of. Special
Commissioner of Police (Crime branch). The report was C
submitted. However, the High Court by impugned order
noted that the investigation by the Gujarat Police
authority was not free from doubt and that to instill
confidence in the public it was appropriate to transfer the
investigation to CBI.
D
In the instant appeals challenging the order of the
High Court, the grievance of the appellant was that the
High Court has made unwarranted remarks against him
which were bound to gravely prejudice his case at the
trial; that he was not even impleaded as party before the E
High Court and, therefore, the writ petition should be
reheard and decided on merits and the remarks against
him be expunged.
Disposing of the appeals, the Court
F
HELD: 1. In the instant 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. The father of
the deceased had filed the petition on the grounds that G
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 H
936 SUPREME COURT REPORTS [2014] 3 S.C.R.
A stated that the investigation into the murder of his son
was not taking place independently and impartially due
to extra-legal and extraneous considerations. He had
prayed before the High Court that his right to equality
before the law guaranteed by Article 14 of the
B Constitution of India was being violated as the appellant
was being protected by the investigating agency
because he is a Member of Parliament, and he belonged
to the political party that was in power in the State. [Para
38] [961-G; 962-A-D]
c Divine Retreat. Centre v. State of Kera/a (2008) 3 SCC
542: 2008 (4) SCR 701; D. Venkatasubramaniam v. M. K.
Mohan Krishnamachari (2009) 10 SCC 488: 2009 (14) SCR
441; State of Punjab v. Davinder Pal Singh Bhullar & Ors.
2012 Crl L.J. 1001; Ms. Mayawati v. Union of India & Ors.
D (2012) 8 SCC 106: 2012 (7) SCR 33 - held inapplicable.
2. 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
E 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
F law. Fair, unbiased and transparent investigation is a sine
quo non for protecting the accused. It is not necessary
to give an opportunity of hearing to the proposed
accused as a matter of course. If prior notice and an
opportunity of hearing have to be given in every criminal
case before taking any action against the accused
G person, it would frustrate the entire objective of an
effective investigation. In the instant case, the appellant
was not even an accused at the time when the impugned
order was passed by the High Court. Finger of suspicion
was pointed at the appellant by independent witnesses
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 937
GUJARAT & ORS.
as well as by the grieved father of the victim. The High A
Court had initially directed that the investigation be
carried under the supervision of the Special
Commissioner of Police, Crime Branch. It was only when
the High Court was of the opinion that even further
investigation was no,t impartial, it was transferred to the B
CBI. There was no obligation for the High Court to either
hear or to inake the appellant.a party to the proceedings
before directing that the investigation be conducted by
the CBI. [Paras 42, 44, 45, 46) [963-E-G; 965-B-C, E-F; 966-
F-G; 967-E-F] C
Union of India v. WN.Chadha (1993) Supp. 4 SCC 260:
1993 (2) SCR 997; Central Bureau of Investigation & Anr. v.
Rajesh Gandhi & Anr. (1996) 11 SCC 253; Sri Bhagwan
·Samardha Sreepada Va/labha Venkata Vishwanandh~
Maharaj v. State of A.P. & Ors. (1999) 5 SCC 740: 1999 (3) D
SCR 870 - relied on.
3. 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, E
inspite of the statements made by the independent
witnesses as well as the allegations made by the father
of the deceased. [Para 47) [967-F-G]
Narender G. Goel v. State of Maharashtra & Anr. (2009)
6 SCC 65: 2009 (8) SCR 1004; Mohd. Anis v. Union of India F
1994 Supp (1) SCC 145: 1993 (1) Suppl. SCR 263; Bank
of India & Anr. v. K.Mohandas & Ors. (2009) 5 SCC 313:
2009 (5) SCR 118 - relied on.
4. The High Court observed that the investigation all G
throughout was far from fair, impartial, independent or
prompt. The High Court then noticed 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 H
938 SUPREME COURT REPORTS [2014] 3 S.C.R.
A deceased and his mobjle 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 noticed that these facts would
B 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. Again the
High Court, by making a reference to the FIR, has prima
c 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
noticed from the affidavit of Superintendent of Police,
that even during the further investigation, he was re~uired
to continuously inform and brief to his supervisory
0
officer. The High Court also noticed that statements of
father, wife, brothers, mother and friends of the deceased
were recorded. 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.
E It was only after the order was passed by the High Court
in a PIL on 02.08.2010, transferring the investigation that
arrests began to be made. The High Court then noticed
that efforts were made by the persons, who were
arrested, to make statements to absolve the appellant of
F being involved in the conspiracy to kill the activist. From
this, the High Court concluded that 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
G acquaintances of the deceased. The High Court then
noticed the contents of case diary in which it was
recorded that on 20.08.2010, the news about the police
being in search of the nephew of the appellant were
leaked in advance and spread through media and
H telecast, even then he could not be located in spite of
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 939
GUJARAT & ORS.
enquiring into various secret sources and informants. A
The High Court also noticed that on 16.8.2010, when the
High Court ordered the transfer of the investigation, one
of the main accused persons was arrested and had
practically dictated in great detail his motive, plan,
execution and sufficiency of resources for arranging the B
elimination of the victim, without ever mentioning the
name of the nephew of the appellant. 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 the c
nephew of the appellant to kill the activist for which the
nephew of the appellant was to provide the money.
Thereafter, the High Court made a very important
observation that although nothing can be treated or held
to be proved at this stage, the sequence of events and 0
the statements clearly indicated that even the name of the
nephew of the appellant was being introduced in a careful
and planned manner with leakage of sensitive information
for the public including others involved in the offence.
Thi.s observation clearly showed that all the observations E
were tentative, prima facie, to adjudge only the issues, as
to whether the State Police had conducted a fair and
unbiased investigation. No opinion was recorded, even
prima facie of the guilt or otherwise of the appellant in the
offence of conspiracy to murder the activist. The
apprehension of the appellant that any of the F
observations made by the High Court would influence
the trial were without any basis. The High Court further
noticed that when the nephew of the appellant was
arrested on 07.09.2010, his statements with a matching
version were recorded everyday from 07.09.2010 to G
20.09.2010 with details of his decision and understanding
with the main accused to kill activist 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 the nephew of the H
940 SUPREME COURT REPORTS [2014] 3 S.C.R.
A appellant is stated to have clarified that, no one else was
informed about his understanding with the main accused.
The High Court further noticed that statement of appellant
was recorded on 16.9.2010 when he claimed not only
complete innocence but ignorance about even the
B activities of the deceased and the difficulties caused by
him. In fact he urged for independent and deeper probe
of the offence. The High Court then recorded the
conclusion that this line of interrogation substantiated the
submission that the investigating agency was following
C the clues offered by the arrested persons rather than the
other independent information given by the father and
witnesses. Taking into consideration all the said facts, the
High Court concluded that the statements of the appellant
recorded after apparently solving the mystery of the
murder clearly appeared to be an empty formality at the
0
convenience and invitation of the appellant. 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
E 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 was in the context of the
F 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. The High Court
thereafter noticed that the first person arrested was not
named by any witnesses in any statement recorded till
G his arrest. The High Court, therefore, stated that 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. The High Court concluded
H that there was sufficient material to substantiate the
OINUBHAI BOGHABHAI SOLANKI v. STATE OF 941
GUJARAT & ORS.
submission that the State police was controlling the A
investigation rather thah carrying it out in a fair, impartial
and prompt manner. The High Court also concluded that
the said 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 B
officers of the lower ranks would not dare to displease
them. These observations again were 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 c
biased. Again no further conclusion was recorded about
the guilt of any of the suspects, let alone the appellant,
in particular. The High Court concluded that where no
one appears to be an eye witness to firing on the
deceased, not only the persons alleged to have assaulted 0
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 E
of the averments and allegations made in the petition.
The High Court only noticed the facts which tend to show
that the investigation had not been conducted impartially
and fairly. Although, the appellant was mentioned on a
number of occasions, no specific conclusion was F
reached that the appellant was responsible for
influencing or controlling the investigation. In fact, the.
finger was pointed only towards the higher echelons of
the police, who seemed to have been under the influence
of the accused persons. Mention of the appellant as the G
prime suspect was not a conclusion reached by the High
Court. The appellant was referred to as the prime suspect
in all the alleg.ations made in the writ petitions and the
statements of the relatives including the statement of the
father of the deceased. Therefore, by recording the gist H
942 SUPREME COURT REPORTS (2014] 3 S.C.R.
A of the allegations made, the High Court did not commit
any error of jurisdiction. The High Court also recorded
that since the appellant and his nephew were living
together in a joint family and, therefore, must have
conspired to kill activist. This is not a conclusion that the
B appellant and his the nephew of the appellant must have
conspired. Similarly, the conclusion recorded by the High
Court that the incorrect statements made by
Superintendent of Police regarding past record of the
appellant clearly indicated an attempt at somehow
c 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
0
cannot be said to be unwarranted. [paras 53, 54] [972-E;
973-B-H; 974-A-B, D-E, F-H; 975-A-H; 976-A-H; 977-A-C,
G-H; 978-A-B, F-H; 979-A-F, H; 980-A-C]
6. Ultimately, the High Court recorded the conclusion
E that all the 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 and further
F 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
G already submitted by the police, as some of the accused
persons were already arrested and shown as accused
persons and even chare is yet to be framed against them.
This conclusion also only recorded the reasons which
persuaded the High Court to transfer the investigation to
H CBI. No categorical findings were recorded about the
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 943
GUJARAT & ORS.
involvement of the appellant in the crime of conspiracy. A
In fact, the High Court was well aware that the
observations were made only for the limited purpose of
reaching an appropriate conclusion as to whether the
investigation had been co.nducted impartially. The High
Court further clarified that while concluding that the B
investigation into murder of the son of the respondent
no.6 was far from fair, independent, bona fide or prompt,
it refrained from even remotely suggesting that the
investigating agency should or should not have taken a
particular line of investigation or apprehended any .. c
person, except in accordance with law. It was clarified
that the observations made were only for the limited
purpose of deciding whether further investigation was
required to be _handed ~ver to CBI, and they shall not be
construed as expression of an opinion on any particular
aspect of the investigation carried out"so far. After D
recording the said clarification, it was noticed that the
investigation was being transferred to CBI to instill
confidence of the general public in the investigation,
keeping in mind the seriousness of the case having far E
reaching implications. None of the adverse remarks
recorded by the High Court are expunged. However, the
trial court is directed to 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 F
is to be transferred to CBI. [Paras 55 to 58] [980-C-F, G-
H; 981-A-F]
7. As regards the bail of the appellant, the appellant
was arrested on 5th November, 2013, when he appeared G
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- H
944 SUPREME COURT REPORTS [2014] 3 S.C.R.
A appellant is no longer required for further investigation.
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. Further, no special treatment can be
s 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, it is deemed appropriate to enlarge the
c petitioner-appellant on bail, subject to conditions of
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. .The petitioner-appellant
shall appear in Court as and when directed by the court
and shall make himself available for any further
0
investigation/interrogation by the CBI as and when
required. 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
E court or to the investigating agency or to any police
officer. [paras 60, 61] [982-A-C, E-H; 983-A-B]
Case Law Reference:
2008 (4) SCR 701 held inapplicable Para 21
F
2009 (14) SCR 441 held inapplicable Para 21
2012 Crl L J 1001 held inapplicable Para 21
2012 (7) SCR 33 held inapplicable Para 21
1993 ( 2) SCR 997 relied on Para 21
G
(1996) 11 sec 2s3 relied on Para 26
1999 (3) SCR 870 relied on Para 26
2009 (8) SCR 1004 relied on Para 26
H 1993 (1) Suppl. SCR 263 relied on Para 49
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 945
GUJARAT & ORS.
2009 (5) SCR 118 relied on ' Para 50 A
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 492 of 2014.
From the Judgment and Order dated 25.09.2012 of the
High Court of Gujarat at Ahmedabad in SCRLA No. 1925 of B
2010.
Mukul Rohatgi, V.K. Bali, H.P. Raval, J.S. Attri, Manali
Singhal, Saurabh Kirpal, Sanjay Agarwal, Alpesh Kogje, Aditya
Soni, Anando Mukherjee, (for Nikhil Jain) Jesal (Hemantika
Wahi), Kamini Jaiswal, Abhimanue Shrestha, Krishna Tiwari, C
T.A. Khan, Ranjana Narayan (for B.V. Balaram Das) for the
appearing parties.
The Judgment of the Court was delivered by
SURINOER SINGH NIJJAR, J. 1. This special leave D
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 E
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 F
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: · G
''The appellant therefore prays that your Lordship may be
pleased to:
a. Admit this petition.
H
946 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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."
B
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
C 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
D 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·
E 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,
F 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
G 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
H campaigned against shifting of lions to the Kuno Wildlife
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 947
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
Sanctuary in Madhya Pradesh. According to him, his efforts A
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 B
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 c
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
0
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.
E
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 F
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 G
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.
H
948 SUPREME COURT REPORTS [2014) 3 S.C.R.
A 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/
B 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
C 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
D 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
E stated that on 2oth 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
F 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
G 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
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 949
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
cadre as well. On 19th October, 2011, the Gujarat High Court A
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 B
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 C
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 ~re
suspicion had come on the record against the appellant so as
to make him accused of any conspiracy to assassinate the D
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 E
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.
F
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.
G
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.) N0.8292 of 2012 also challenging
the transfer of the investigation to CBI. This/ SLP was filed on H
950 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B 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
IC 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
D 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
E 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
F 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
G 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
H appellant, he was immediately arrested, when he appeared
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 951
GUJARAT & ORS. [SURINDER SINGH NIJJAR. J.]
before the CBI, in response to the summons to join the A
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 B
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 C
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, D
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 E
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 F
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. G
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 H
952 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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.
B
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
be~n made without making him a party. He submitted that the
C 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.
D
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
E 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
F 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
G 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.
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 953
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
21. Mr. Rohatgi has relied on the following judgments in A
support of his submission.
Divine Retreat Centre Vs. State of Kerala1; D.
Venkatasubramaniam Vs. M. K. Mohan Krishnamachari2;
State of Punjab Vs. Davinder Pal Singh Bhullar & Ors. 3; Ms. B
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 C
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 D
area that is represented by him as an MP in the Parliament.
Learned senior counsel further submitted that although CBI has
filed the char~e 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 E
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 F
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.
G
1. c2008) 3 sec 542.
2. (2009) 10 sec 488.
3. 2012 Criminal Law Journal 1001.
4. c2012i 8 sec 106.
5. (1993) Supp4 sec 260. H
954 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B cannot be des(abilized 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,
c 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.
D 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
E 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 c~remonies of his deceased
brother. At the same time, immediately with the issuance of the
F .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
G 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
H the aforesaid, the appellant has been illegally deprived of his
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 955
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
personal liberty and fundamental rights under Articles 14 and A
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 B
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
c
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 D
sheet has also been submitted in court. It is further submitted
that there is no violati,on 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 E
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 F
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. G
_ _ _@ 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, H
956 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B 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
c 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
D 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
E 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
F Investigation & Anr. Vs. Rajesh Gandhi & Anr. 6, Sri Bhagwan
Samardha Sreepada Va/labha 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).
G
27. She further submitted that even though the High Court
has given elaborate details in support of the conclusions to
6. (1996) 11 sec 253.
1. (1999) 5 sec 740.
H a. (2009l E> sec 65.
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 957
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
transfer the investigation to CBI, it does not mean that the A
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 zo.ne of the Gir Forest Sanctuary. This
sanctuary is the only habitat of the Asiatic Lions. Jethwa had B
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 c
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 D
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 th~ High Court were wholly justified E
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 F
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 G
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, 201 O; he had been absconding for H
958 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B 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
c 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.
0
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
E 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
F 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
G 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
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 959
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
unnecessarily being mentioned in these proceedings. A
33. We have considered the s'ubmissions 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 B
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 the1aw in motion against
the named and unnamed individuals based on the information
received by it without recording the reasons that the information C
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 D
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 E
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 F
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 G
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: H
960 SUPREME COURT REPORTS [2014] 3 S.C.R.
A "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
B 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
c 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
D
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
E 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."
F 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
G 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.
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 961
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
37. In D. Venkatasubramaniam (supra), again this Court A
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 B
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.
c
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 D
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 E
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 F
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 G
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 H
962 SUPREME COURT REPORTS [2014] 3 S.C.R.
A redressal of the grievance under Articles 14, 21 and 226 of tne
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
8 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
C 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
D ratio of judgment in 0. 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
E 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
F
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
G 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
H the proceedings before the High Court were ostensibly to
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 963
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
procure the presence of the proclaimed offenders but in A
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 B
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
c
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 D
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. · '> E
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 ot the suspect/accused is F
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 'hon for protecting the G
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. H
964 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 44. In WN.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
B 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
c 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
D 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."
E "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
F 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
G
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
H
DINUBHAI BOGHABHAI SOLANKI v STATE OF 965
GUJARAT & ORS. [SURINDER SINGH NIJJAR. J.]
inquiry but cannot participate. There are various judicial A
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 B
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 C
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 D
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 E
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 F
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 : G
"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 H
966 SUPREME COURT REPORTS (2014] 3 S.C.R.
A 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
B 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
c further investigation is not precluded. In the present case
the material on record shows that the investigation by the
local police was not 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
D 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,
E
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
F 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
G 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
H observed as follows :
'L
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 967
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.)
"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 B
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 C
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 D
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."
E
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 F
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 G
in the case of Narender G. G.oel (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 H
968 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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)
B
"11 .... There is nothing in ~ection 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
c 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
D 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
E 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."
F
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
G
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
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 969
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
allegations levelled by either of the parties, we are of the A
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 B
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 lndia 9 , wherein this Court
held as follows :
c
"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 ~ispute, the credibility of the
investigation will be doubted and that will be contrary to D
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 E
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 F
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 G
aforesaid observations. The classic statement of Earl of
Halsbury, L. C. in Qu)nn v: Leathern, is worth recapitulating
first: (AC p. 506)
9. 1994 Supp (1) sec 145.
10. (2009) s sec 313. H
970 SUPREME COURT REPORTS [2014] 3 S.C.R.
A "... 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
B 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
c 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
D
must acknowledge that the law is not always logical
at all."
(emphasis supplied)
E This Court has in long line of cases followed the aforesaid
statement of law.
55. In State of Orissa v. Sudhansu Sekhar Misra 9 it was
observed: (AIR p. 651, para 13)
F "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."
G
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
H may alter the entire aspect. In deciding such cases,
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 971
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
one should avoid the temptation to .decide cases A
(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." B
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 C
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. 0
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 E
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 F
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."
G
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.
H
972 SUPREME COURT REPORTS [2014] 3 S C.R.
A 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
8
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
C 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
O 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
E 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
F 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
G were.i 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
H a blackmailer or a busybody. He was interested in
DINUBHAI BOGHABHAI SOLANK! 11. STATE OF 973
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
spreading public awareness about environmental A
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 B
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
c
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 D
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 E
have been registered under the advice and
guidance of the hig~er 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 furth~r investigation, he F
was required to continuously inform and brief Mr.
Mohan Jha as his supervisory officer and Special
Police Commissioner, Crime Branch, ' Ahmedabad.
The High Court,Jherefore, formed an opinion that
Mr. Mohan Jha continued to guide and control even
G
the further investigation, which had been conducted
on the directions of the High Court. The High Co&rt
also notices that Mr. Kundaliya who was in charge
of the investigation, had recorded statements of
father, wife, brothers, mother and friends of the
H
974 SUPREME COURT REPORTS [2014] 3 S.C.R.
A deceased These persons had given spr::cific
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
B 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
c 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
D
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
E 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
F 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
G 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.
H (d) The High Court also notices that on 16.8.2010,
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 975
GUJARAT & ORS. [SURINDER Slr~GH NIJ,!AR, J.]
when the High Court ordered the transfer of the A
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 B
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 c
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 D
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".
E
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 F
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 tha't when Shiva G
Solanki was arrested on 07 .09.2010, his
statements with a matching version were recorded
everyday from 07 .09.201 O to 20.09.2010 with
details of his decision and understanding with
Bahadursinh to kill Amit Jethwa of his own motive H
976 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B Bahadursinh.
(f) The High Court further notices that statement of
appellant was recorded on 16.9.201 O when he
claimed not only complete innocence but ignorance
about even the activities of the deceased and the
c 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
D 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
E 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
F
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
G 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
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 977
GUJARAT & ORS. [SURINDER SINGH NIJJAR. J.]
guilt of the appellant. A
(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 1 states that it is not clear "How that B
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
c
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 D
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 E
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". F
(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 G
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
H
978 SUPREME COUFH REPORTS [2014] 3 S.C.R.
A 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
B 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.
0) The High Court thereafter notices the relationship
c 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
D 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
E 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."
F
(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
G 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
H
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 979
GUJARAT & ORS [SURINDER SINGH NIJJAR, J.]
averments and allegations made in the petition. A
(I) 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
B
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
c
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 D
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 E
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 F
Mr.DB were living together in a joint family and no
investigator could have been easily satisfied with
the state~ents that they did not interact in respe·ct
of th·e conspiracy to commit a capital crime,
particularly when both of them were simultaneously G
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 H
980 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B 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
C unwarranted.
55. Ultimately, the High Court records the following
conclusion:
"All the above circumstances put together indicated that
D 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
E 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,
F 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."
G
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
H is well aware that the observations have been made only for
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 981
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
the limited purpose of reaching an appropriate conclusion as A
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 B
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. C
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."
D
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. E
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 obseritations made by
the High Court, which may appear to be adverse to the
Appellant, were confined only to the determination of the issue F
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.
G
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 H
982 SUPREME COURT REPORTS (2014] 3 S.C.R.
A. 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
B 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
c 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
D 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
E 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
F 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.
G (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
H when required.
DINUBHAI BOGHABHAI SOLANKI v. STATE OF 983
GUJARAT & ORS. [SURINDER SINGH NIJJAR, J.]
(iv) The petitioner-appellant shall not directly or indirectly A
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.
8
(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. C
. 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 D
terms.
Crl.M.P.No.22987 of 2013 :
64. This Crl. Misc. Petition was filed by the petitioner on E
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.
F
D.G. Appeals disposed of.
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