Punjab-Haryana High Court
Ajit Singh Bains vs State Of Punjab And Others on 31 May, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CRM M- 22722 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CRM M-22722 of 2011 (O&M)
Date of Decision: May 31, 2013
Ajit Singh Bains
.....Petitioner
Vs.
State of Punjab and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr.R.S. Bains, Advocate
for the petitioner.
Mr.Ankur Jain, AAG, Punjab.
Mr.R.K. Handa, Advocate for respondent No.2.
Mr.Baldev Kapoor, Advocate, for respondent No.3.
Mr.R.S. Rai, Sr. Advocate with
Mr.Gautam Dutt, Advocate for respondents No.4 to 13.
Mr.S.P.S. Sidhu, Advocate, for respondents No.14 to 16.
-.-
M.M.S. BEDI, J.
Petitioner, a respectable senior citizen, human rights activist known for his disciplinary approach and integrity, has preferred the present CRM M- 22722 of 2011 [2] petition under Section 407 Cr.P.C. read with Section 482 Cr.P.C. for transfer of the case FIR No. RC 1 (S) /2003-SIU.V/SIC.11/CBI, New Delhi dated June 3, 2003 registered under Sections 376, 109 etc. IPC, pending in the Court of Additional Sessions Judge, Patiala to any other Court outside the State of Punjab preferably in UT, Chandigarh as the accused have enormous influence in Punjab and are not allowing free and fair trial. It is claimed that the prosecution agency, despite having arrived at a conclusion that the prosecution witnesses have turned hostile on account of influence of accused, have not been able to prevent the farce trial. The grievance of the petitioner is that the prosecution witnesses Simran, Sarika and Neelam i.e. the victims of sexual exploitation whose statements have been recorded on different occasions i.e. by local police, Amritsar, By Magistrate, in the presence of a Judge of the High Court while taking cognizance who had gone to Amritsar and met the girls and by CBI agency which was entrusted with the investigation after it was transferred to CBI.
Learned counsel appearing for the petitioner, at the time of arguments, has extended the prayer for a de novo trial of the case by re-
CRM M- 22722 of 2011 [3] examining the witnesses and for adjudication of an application under Section 340 Cr.P.C. having been filed for initiating proceedings which was disposed of on April 8, 2011 vide annexure P-5 by the Special Judge, Patiala, on the ground that neither the complainant had herself appeared nor his counsel had turned to pursue the application as such no order was passed on the said application.
Brief facts which are relevant for adjudication of this petition are that an FIR No. 174 of 2003 was registered at Police Station Civil Lines, Amritsar on May 23, 2003. Thereafter on the directions of Punjab and Haryana High Court, case was transferred to CBI on May 30, 2003. The CBI presented two charge-sheets dated August 16, 2005 against the accused in the case. One case is being tried in the Court of Special CBI Magistrate, Patiala and the second is pending before the Additional Sessions Judge, Patiala. Subsequently, the charges were framed against the accused on July 17, 2006 under Sections 376/109 IPC. Charges were framed in the case of rape and after the charges having been framed in the rape case witnesses were summoned for prosecution evidence on September 4, 2006. The accused were released on bail due to non-presentation of challan within 90 days. Three of the accused were granted bail on August 23, 2003 and the other were granted bail on August 25, 2003. Later on CBI had arrested more accused who were released on regular bail. The petitioner claims that one of the conditions of bail was that the accused will not interfere in the investigation and will not tamper with the evidence or influence or threaten CRM M- 22722 of 2011 [4] the witnesses. It is claimed that the accused started destroying the evidence and harassing the witnesses. Security officials were provided to the victim girls on the directions of the High Court but they also started harassing the victims. Complainant Simran Arora and Sarika Gupta requested for withdrawal of their security on account of the harassment. After the case of rape was entrusted to CBI to trace out the truth, the investigation officer, D.C. Sharma, was under pressure not to properly investigate the case. Due to half-hearted investigation by CBI, the High Court had observed in an order dated August 10, 2004 while deciding the bail application of accused Sanjeev Kumar that CBI had not shown interest in the case as a result of which the witnesses started turning hostile. The petitioner in the present case had filed an application annexure P-1 dated January 10, 2011 for cancellation of the bail and recalling the hostile witnesses in the Court of Additional Sessions Judge, Patiala. It was also prayed in the said application that action under Section 340 Cr.P.C. for perjury be taken against the witnesses who had turned hostile. The petitioner claims that he had received complaints from the witnesses regarding threats given to them by the accused and pressurizing them to make statements in their favour. CBI was informed in this regard vide letter dated December 1, 2008 and finally on December 5, 2008 CBI Joint Director Mr.M. Narayanan wrote three letters to SSP, Amritsar in which he acknowledges that three witnesses had turned hostile on pressure and threat from accused Sarabjit Singh @ Raju and others. It was pointed out that other witnesses of cases who are CRM M- 22722 of 2011 [5] residents of Amritsar are also being threatened and harassed by the accused and their associates. Joint Director directed SSP, Amritsar for protection and security of witnesses and legal action against CA of accused Sarabjit Singh for preparing false affidavits of witnesses in the case. Acting on the said directions, the Amritsar Police raided the office of the CA of the accused on December 9, 2008 where 21 fresh affidavits of the witnesses of this case were found. All these facts were conveyed to Director CBI by the complainant vide letter dated March 11, 2009. Copies of letters dated December 1, 2008 and March 11, 2009 and three letters of the Director CBI by the complainant vide were placed before the trial Court. It is, however, claimed by the petitioner that PHRO team was able to record conversation of witnesses with the accused and his lawyer which conclusively proved how systematically the witnesses were tutored and compelled to give false testimony before the Court. Recordings show that the witnesses were contacted, brought to the Court premises by the accused and taken to the accused's lawyer's chamber at District Courts, Patiala where the accused's lawyer tutored the witnesses as to how to give false evidence before the Court. It is averred in the petition that at initial stage the statements of the three girls had been recorded by the police. Thereafter their statements were recorded in the shape of affidavits dated May 27, 2003 submitted in the High Court and by Judicial Magistrate on May 29, 2003 and during investigation CBI has recorded the statements of victims Simran Arora, Neelam Sidhu and Ms. Sarika Gupta on June 21, 2003, June 19, 2003 and CRM M- 22722 of 2011 [6] June 22, 2003, respectively but the CBI has not corroborated their earlier statements before the police and Judicial Officers. Suman Arora made a statement in the Court on October 19, 2006 but she resiled from earlier statement and was declared hostile. On January 6, 2007 CBI moved an application under Section 340 Cr.P.C. for initiation of proceedings against Simran Arora. Notice was issued to the witness on January 6, 2007 but the trial Court i.e. Additional Sessions Judge, Patiala, deliberately ignored the same in subsequent hearings as such no decision has been taken. On account of said inaction, the three victim girls again turned hostile. Copy of the application under Section 340 Cr.P.C. has been placed on record as annexure P-3. On account of inaction on the part of CBI, Punjab Police and the Courts to protect the witnesses trial has become mockery and it will be of no benefit in case a mock trial is carried on. The accused are required to be arrested as there is no prospect of the witnesses to come forward to depose truth in the Court, in case they are permitted to misuse their liberty. The grievance of the petitioner is that as per the interim orders of the Court, it is indicated that no reply was received in the application under Section 340 Cr.P.C. till April , 2011 but on April 8, 2011 the said application was dismissed on the ground that complainant or his counsel was not present. The statements of three Judicial Officers who have appeared as witnesses and testified that the statements of the girls were recorded on different dates. The examination-in-chief of these three Judicial officers have been placed on record as annexures P-10, P-11 and P-12. On the basis of the abovesaid CRM M- 22722 of 2011 [7] sequence, counsel for the petitioner has submitted that though the trial is at the final stage of arguments after recording of the statements of the investigating officer and other witnesses, the de novo trial is warranted.
On notice having been issued to the respondents, reply was filed by the respondents. Crl. Misc. No. 40705 of 2012 under Section 482 Cr.P.C. was filed by counsel for respondents No.15 and 16 i.e. Simran Arora and Neelam Sidhu alongwith their affidavits annexures R-1 and R-2, stating that neither the Punjab Police nor CBI had recorded their statements and that they had never given any statements before Magistrate. Though they were taken in Court premises by the police and statements were recorded in a room but it was not a Court room. The statements were taken under pressure by the police and by threatening them. Even they have refused to recognize the Advocate. They had deposed that they had given statements before the Court at Patiala without any pressure, fear, threat and promise and stated truth before the trial Court.
CBI was required to file a report pertaining to the averments in the petition explaining that there are two separate cases, one case relates to offence of extortion from cable operators of Amritsar and sexual exploitation of women by accused persons at Amritsar and the second is a case bearing FIR No.174 of 2003 registered at Police Station Civil Lines, Amritsar. However, the investigation in case FIR No.174 of 2003, Police Station Civil Lines, was also transferred to CBI. The reply of CBI is reproduced as under:-
CRM M- 22722 of 2011 [8] "It is humbly submitted that Shri Ajit Singh Bains, Retd. Justice of High Court of Punjab and Haryana and Chairman of P.H.R.O. at Chandigarh has filed above mentioned petition U/s 407 Cr.P.C. r/w 482 Cr.P.C. for transfer of the trial of the case i.e. FIR No. RC 1 (S) / 2003-SIU.V/SIC-11/CBI, New Delhi pending in the Court of Ld. Addl. Session Judge, Shri Balbir Singh at Patiala (Punjab) to any other Court outside the State of Punjab, is on misconceived grounds and therefore, the same are hereby denied.
2) That the background of the case is that FIR No.174 dated 23.5.2003 was registered at P.S. Civil Lines, Amritsar. Later on, the Hon'ble High Court of Punjab and Haryana, Chandigarh vide its order dated 30.5.2003, passed in CWP NO. 8521 of 2003, transferred the investigation of the Case/FIR No.174, dated 23.5.2003 of P.S. Civil Lines, Amritsar to CBI.
Accordingly, CBI Special Crime II New Delhi registered the case as RC 1 (S) /2003-SIU.V/SIC.11/CBI/New Delhi on 3.6.2003. The case relates to the offences of extortion from cable operators of Amritsar and sexual exploitation of women by the accused persons at Amritsar (Punjab).
CRM M- 22722 of 2011 [9]
3) That, in the year 2005, after the completion of investigation of the case, on 16.8.2005, CBI filed two charge-sheets as under:-
a) Charge sheet No 1: filed in RC 1 (S) /2003-
SCU.V/SIC.11/CBI/New Delhi u/s 120-B IPC r/w 384/506 IPC against Sarabjit Singh @ Raju (A-1), Hari Om Dhanuka (A-2), Gagan Bedi (A-3) and Ganesh Poddar (A-4) in the Court of SJM (For CBI cases), Punjab at Patiala.
b) Charge sheet No.2 filed in RC 1 (S) /2003-
SCU-V/SIC-II/CBI/New Delhi u/s 120-B IPC r/w 376/109 IPC against Sarabjit Singh @ Raju (A-1), Hari Om Dhanuka (A-2), Gagan Bedi (A-3) and 9 other accused persons in the Court of Addl. Sessions Judge at Patiala (Punjab).
4) That, the trial of both the cases are at fag end and there is no legal and valid ground to transfer the trial of case to any other Court, outside the State of Punjab.
5) That, the statement of Justice Bains do not reveal the incidence, acquisition and knowledge about the case. He has only stated about the investigation CRM M- 22722 of 2011 [10] conducted in the present case at Punjab Human Rights Organisation (PHRO) at Chandigarh.
6) That, Shri A.S. Bains has no personal knowledge of the case. The statement recorded during the investigation was not found relevant to the investigation and therefore his name has not been cited as prosecution witness in the charge-sheet filed in the case by CBI u/s 120-B r/w Section 376 IPC.
7) That, as the matter is subjected before the Trial Court i.e. the Court of Ld. Addl. Sessions Judge Shri Balbir Singh at Patiala (Punjab), therefore, it will be pre-mature to comment on the statement made by the victims who had turned hostile. However, the prosecution witnesses were duly confronted with the statements u/s 161 Cr.P.C. and 164 Cr.P.C. made before the Punjab Police, CBI and before Judicial Officials/ Judges, respectively, during the trial of the case.
8) That, for initiating proceedings against PWs for giving false evidence in the Court, as application u/s 340 Cr.P.C. was filed against Simran Arora, one of the prosecution witness, who had turned hostile in the case.
9) That, notice could not be served on PW Simran Arora on the application u/s 340 Cr.P.C. as she CRM M- 22722 of 2011 [11] has changed/ shifted her residence and new address is not available with the neighbours and relatives. Efforts have been made to trace PW Simran Arora to serve the notice, but, her present address could not be located/ ascertained so far.
PRAYER:
In the circumstances, there is no legal and valid ground available to transfer the trial of the case to any other Court, outside the State of Punjab. It is, therefore, prayed that the petition under reply be dismissed in the interest of justice."
A report was received from Mr.Hemant Sohal, Special Judge, CBI, Patiala that the Court will ensure the speedy disposal of the application as directed by the High Court.
Taking into consideration all the above circumstances, I have considered the matter for transfer of the case as well as for de novo trial. The matter in the present case is pending since the year 2003. Though the accused have got right of fair and speedy trial but the law regarding re-trial and de novo trial has been considered in recent judgment of the Supreme Court in Mohd. Hussain @ Julfikar Ali Vs. State (Government of NCT of Delhi), (2012) 9 SCC 408. In Para 41 of the judgment, the Court has observed as follows:--
CRM M- 22722 of 2011 [12] "Though the power of retrial exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. This power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) Cr.P.C., will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked."
I have considered the contention of learned counsel for the petitioner regarding the jurisprudence of fair trial and powers of the criminal Court in the Code of Criminal Procedure and Evidence Act. The guidelines for fair trial and de novo trial can be extracted from the judgment of Zahira CRM M- 22722 of 2011 [13] Habibulla H. Sheikh Vs. State of Gujarat, (2004) 4 SCC 158, known as Best Bakery Case. The relevant portion of the said judgment is extracted herein below:-
"33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation
- peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
Then in para 35 of the Best Bakery case, the Court observed that in a criminal case fair trial entails triangulation of interests of the accused, the victim and the society. The Court further observed that "interests of (the) society are not to be treated completely with disdain and as persona non grata".
In Best Bakery Case, the Court also made the following observations:
"38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a CRM M- 22722 of 2011 [14] judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.
39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial.
CRM M- 22722 of 2011 [15]
40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice."
In the Best Bakery Case a note of caution was also recorded that an extraordinary case is required to be made out for a retrial of a case i.e. where entire machinery of prosecution is trying to shield the accused or where it is apparently a farce trial.
In Satyajit Banerjee Vs. State of West Bengal (2005) 1 SCC 115 the Apex Court observed as follows:-
"26. The law laid down in Best Bakery Case in the aforesaid extraordinary circumstances, cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all or every case where acquittal of accused is for what of adequate or reliable evidence. In Best Bakery case the first trial was found to be a farce and is described as 'mock trial'. Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this Court in Best Bakery case."
CRM M- 22722 of 2011 [16] As per the law laid down in Best Bakery case, the Court is required to determine the extraordinary circumstances before a direction for retrial is made. Whether the trial in the present case is farce or could be described as a mock trial, has to be considered in view of the circumstances of the present case that the victims have furnished affidavits even before this Court explaining that their statements had not been recorded by the police and that they have explained the circumstances in which their statements were recorded. It will not be appropriate at this stage to re- appreciate the evidence and determine the merits of the case. It is a settled principle of law that it is open to a trial Court to consider the testimony of a hostile witness in context to the other circumstances and pass an appropriate order of conviction or acquittal. The hostile witnesses in the present case had been cross-examined at length. It will be for the trial Court to separate the nuggets from the chaff to determine the truth and pass an appropriate order. The circumstances in which the CBI had written letters stand explained in the reply of CBI, no malafide can be attributed to the said investigating agency merely because the witnesses have turned hostile. In case the de novo trial is ordered at this stage in order to enable the prosecution to improve upon its case or to fill up the lacunae, it will not be fair to the accused persons who have been facing trial for the last 10 years. The trial Judge has power to appreciate the evidence of even hostile witnesses in context to the remaining evidence and pass appropriate speaking order. The power of ordering re-trial depends upon the facts and CRM M- 22722 of 2011 [17] circumstances of each case for which no straightjacket formula can be formulated. The transfer of the case from Patiala to any other Court at this stage, will not be expedient in the interest of justice.
It is relevant to observe here that the present petition was originally filed for transfer of cases from the Court of Patiala to any other Court of competent jurisdiction but subsequently an attempt was made to extend the scope of the petition to convert it into a petition with prayer of the De Novo trial. Both the prayers have been considered simultaneously in the light of Best Bakery Case and Mohd. Hussain case (supra). In view of affidavits produced by prosecutrix Simran Arora and Neelam Sidhu de novo trial will be a simple formality and scope of appreciation of evidence which has already been produced, can not be enhanced. The endeavour to get the case transferred and seek de novo trial appears to be to re-examine the prosecutrix Simran Arora, Neelam Sidhu and Sarika.
With the filing of the affidavits of prosecutrix girls before this Court, it does not appear to be appropriate to transfer the case to any other Court at this stage. Any observation on appreciation of the material produced before this Court might prejudice the right of the prosecution or the accused persons. Leaving the trial Court to appreciate the evidence and pass any appropriate order, this petition deserves to be disposed of as having been rendered infructuous on the basis of the affidavits which have been filed by the victims before this Court.
CRM M- 22722 of 2011 [18] Appreciating the endeavour of the petitioner as a human rights activist and desire to achieve the ends of justice, this Court is of the opinion that the efforts have been thwarted by the prosecutrix girls.
I have considered the circumstances of the case taking into consideration the various parameters laid down by the Apex Court for transfer of the trial i.e. Menaka Sanjay Gandhi Vs. Ram Jeth Malani, (1979) 4 SCC 167, K. Aubazhajan Vs. Superintendent of Police, (2004) 3 SCC 767; Abdul Nazar Madani Vs. State of Tamil Nadu, (2000) 6 SCC 204; and Himanshu Singh Sabharwal Vs. State of M.P. and others, AIR 2008 SC 1943 and am of the considered opinion that the apprehension of not getting fair and impartial trial though not based on conjectures and surmises but the trial Court can not be attributed any partiality or bias. If few witnesses have turned hostile, it is always open to the trial Court to fairly appreciate cross-examination and other circumstances for administration of justice.
In view of the judgments of the Apex Court in Mohd. Hussain @ Julfikar Ali case (supra) and Zahira Habibulla H. Sheikh case (supra) and taking into consideration the affidavits of the victims produced before this Court, this petition is disposed of as having been rendered infructuous. However, the trial Court is directed to dispose of the trial expeditiously by fairly appreciating material available on the record besides passing a speaking order on the application under Section 340 Cr.P.C., if it is still pending.
CRM M- 22722 of 2011 [19] May 31, 2013 (M.M.S.BEDI) sanjay JUDGE