Murder Of Activist Amit Jethwa: SC Cancels Former BJP MP Solanki’s Bail, Orders Re-Examination Of Witnesses [Read Judgment]

While considering an application for the cancellation of bail granted to former BJP MP Dinubhai Solanki, the Supreme Court bench of Justices AK Sikri and Ashok Bhushan on Monday directed the re-deposition of eight eyewitnesses and the detention of Dinubhai Solanki, the prime accused in the murder of RTI activist Amit Jethwa, in custody during the course thereof.

The investigation and succeeding trial in the cold-blooded murder of Jethwa outside the Gujarat High Court in 2010, soon after the institution of a public interest litigation by him impleading the accused and his nephew for illegal mining in and around Gir Forest Sanctuary, have been marred by discrepancies from the beginning - the initial probe into the matter by the concerned police station claimed as being lackadaisical, the Gujarat High Court felt compelled to intrude and transfer the investigation to the autonomous investigating agency, the CBI; upon Solanki’s release on bail, witnesses and even the family of the complainant were allegedly subjected to undue pressure and threats extended on behalf of the accused; out of 195 witnesses initially examined, 105 were declared hostile, causing the high court to grant the relief of de novo trial as prayed for in a writ petition.

In addition to the criminal miscellaneous petition seeking cancellation of bail, the apex court also heard appeals challenging the order of the Gujarat High Court for de novo trial, wherein it was contended that the high court in exercise of its writ jurisdiction under Article 226 of the Constitution is not an appellate court as envisaged under Section 386, CrPC. Upholding the jurisdiction of the high court to require a de novo trial, the Supreme Court modified the order to mandate the re-deposition of only 26 essential witnesses as proposed by Additional Solicitor General Atmaram Nadkarni, including 8 eyewitnesses, 15 persons for circumstantial evidence and 3 panch witnesses. Observing that the examination of the 195 witnesses had lasted for a span of one year even with the trial being conducted on a day-to-day basis, the court remarked, “Obviously, in the process of giving priority to this case by fixing it for evidence, practically on every working day, same would have happened at the cost of adjourning many other cases. Directing a trial court to spend this kind of time once again is a tall order and the same purpose which is sought to be achieved by the high court could be served by re-examining only those witnesses which are absolutely necessary.”

With regard to the plea for the cancellation of bail, the division bench of Justice AK Sikri and Justice Ashok Bhushan referred to the authority of Masroor vs State of Uttar Pradesh and Another [(2009) 14 SCC 28], in so much as it emphasises the importance of prioritising the collective interest of the society as is represented in a fair trial over the right to liberty of the under trial. Further, the court relied on the order of the trial court requiring the Director General of Police, Gujarat, to accord adequate security to prosecution witnesses and the letter of the Special Director, CBI, to the Superintendent of Police, district Gir Somnath, forwarding a request in the same behalf, to determine the propensity of the accused in tampering with the evidence. In the light of the circumstances, the court directed that Solanki be arrested and held in confinement until such time the examination-in-chief and cross-examination of the eight eyewitnesses is completed, thereupon, permitting the accused to be released on bail, provided he shall immediately move out of Gujarat and not re-enter till the evidence in respect of the remaining witnesses is recorded.