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Existing Provisions Insufficient to Combat Menace of Witnesses Turning Hostile: HC Orders Retrial of RTI Activist’s Murder Case

Apoorva Mandhani
2 July 2017 4:14 AM GMT
Existing Provisions Insufficient to Combat Menace of Witnesses Turning Hostile: HC Orders Retrial of RTI Activist’s Murder Case
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The Gujarat High Court on Thursday ordered a retrial in the murder case of RTI Activist Amit Jethva, and also directed transfer of the case to a new Judge to conduct the retrial. The order comes as a major blow to the accused, including former BJP Junagadh MP Dinu Bogha Solanki, who is a key accused in the case.

The fresh trial has been directed to be held on a day-to-day basis, with in-camera proceedings. Further, in view of the fact that 105 of 195 witnesses had turned hostile, the Court ordered for full protection of witnesses at their residences, and their relocation and protection in any other State, if need be. It also ordered safe passage for all witnesses to and from the Court precincts, to enable them to depose fearlessly.

Mr. Jethva was shot dead outside the High Court in 2010, allegedly at the behest of former BJP MP Solanki, as the former was exposing Solanki’s alleged illegal mining in Junagadh District. The case was initially investigated by the Ahmedabad Crime Branch. However, after the RTI’s Activist’s father, Bikhabhai had approached the High Court, a CBI probe was ordered, which had established Solanki as the main conspirator.

The High Court’s order was now issued on a Petition filed by Bikhabhai, who had sought retrial and investigation into the alleged threats given to several witnesses by Solanki and his nephew. He had cited at least five complaints wherein the witnesses had informed the Central Bureau of Investigation about the alleged threats. It was brought to the attention of the Court that while security was provided to three of them, no investigation was conducted.

Justifying the order of retrial even before the trial is over, Justice J.B. Pardiwala observed, “To tell the writ applicant that he should wait for the final outcome of the trial, and if ultimately, the accused persons are acquitted, he may file an appeal before the Appellate Court will be nothing, but an insult to the injury… The distortion in the present case is so brazen that even the worms turned. Ultimately, whatever may be the outcome of the retrial, the Court should not shut its eyes and raise its hands in helplessness saying that what can be done.”

The Court refused to accept the contention that a retrial can only be ordered if the witnesses come forward agreeing to depose in line and tune with their statements made before the Police. It, therefore, observed, “The guiding factor for retrial must always be the demand of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by any extraneous consideration. When it is shown that the public confidence is the fairness of a trial would be seriously undermined, the Court should not hesitate in ordering a retrial in the interest of justice.”

With regard to the “menace of witnesses turning hostile”, the Bench also called for Courts to take some positive action, opining that Sections 195 and 340 of the Cr.P.C. “could hardly be termed as the effective measures to combat with the menace of the witnesses turning hostile.” With regard to the case at hand, it observed that neither Sections 311 and 391 of Cr.P.C. nor Section 165 of the Evidence Act be the solution the problem.

It then went on to rap the CBI for its stance, and observed, “In fact, I am taken by surprise or rather shocked with the stance adopted by the C.B.I. in the matter. The C.B.I. has made itself very clear that it does not want a retrial. However, they have prayed before this Court that few witnesses may be reexamined. It is difficult for me to read the mind of the C.B.I., but at the same time, I do not approve the stance of the C.B.I., and more particularly, having regard to the serious nature of the matter.”

Thereafter, directing the retrial, Justice Pardiwala directed that the same should be conducted by another Presiding Officer, as he had “lost confidence” in the present Officer, but restrained himself from making comments on him, as he opined that it would bring a bad name to the institution.

Read the Judgment Here


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