Gujarat High Court: A Single Judge Bench of J.B. Pardiwala, J. exercising the writ jurisdiction ordered a retrial of a pending CBI case in the Amit Jethva murder case in which former BJP parliamentarian Dinu Solanki is a key accused.
The petitioner submitted that the accused persons by their power and position, has reduced the trial to a mere farce and are guilty of tampering with prosecution witnesses. The petitioner showed the complaints of threat filed by the witnesses and pointed out that out of 195 witnesses, 105 became hostile out of these 8 were the eye witness of the actual incident. The prosecution submitted that “criminal judicial system cannot be overturned by those gullible witnesses, who act under pressure, inducement or intimidation.”
The respondent contended that the writ petition is not maintainable as a retrial of a pending case cannot be ordered under this Article. Also, witness turning hostile is no ground for ordering a retrial.
The Court upon analysing the concept of ‘fair trial’ held that “Denial to fair trial is as much injustice to the accused as to the victim and the society”. Referring to various judgments the Court noted that “it is evident from the case laws that a de novo trial or retrial of the accused should be ordered in exceptional and rare cases”.
The Court made an observation regarding the role of judge in criminal trial and said “A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape”.
The Judge disposed off the writ proceedings making following orders:
1. To transfer all the cases under a new presiding officer.
2. CBI shall obtain the witness summons from the Court concerned and start examining the witnesses a fresh.
3. Retrial shall commence at the earliest and shall proceed on the day today basis.
4. The retrial shall be in camera proceedings.
5. The CBI as well as the State police machinery is directed to ensure that full protection is given to each of the witnesses.
[Bhikhalal Kalyanji Jethava v. Central Bureau of Investigation, 2017 SCC OnLine Guj 716, decided on 29/06/2017]