Punjab-Haryana High Court
State Of Punjab vs Virat Sapra And Others on 16 January, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Inderjit Singh
CRM No. 41802 of 2012 in/and
CRM-A No. 583-MA of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM No. 41802 of 2012 in/and
CRM-A No. 583-MA of 2012
Date of decision : 16.1.2013
State of Punjab ........Applicant-appellant
Vs.
Virat Sapra and others .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
Present:- Mr. Rajesh Bhardwaj, Addl. AG, Punjab
for the applicant-appellant
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Jasbir Singh, J.
Respondents No. 1 to 7 along with three others namely; Darshan Singh Bains, Vinny Bains and Kanwar Sandeep Singh were arrayed as accused in FIR No. 36 recorded on 23.2.2005 Police Station Division No.6, Jalandhar, for commission of offences under Sections 124A, 153A and 120B IPC.
During trial, the three accused named above were declared proclaimed offenders and the proceedings continued against respondents No.1 to 7. Vide judgment dated 16.11.2011, all the seven accused/ respondents were acquitted of the charges framed against them, which led the State of Punjab to file this application under Section 378 (3) Cr.P.C. seeking leave to file an appeal against that judgment.
The trial Judge has noted the following facts regarding case of CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -2- the prosecution :-
"That the present case was registered on the basis of Fax massage received from Director, Daily Emigrant London and USA to the address of DIG, Jalandhar to the effect that Virat Sapra and others are preparing threatening letters to NRIs designing deflate and publishing material for terrorist organization in Canada, USA and UK duplicating of CD covers, Music, illegal copies of foreign books, Magazines and sealing Master Head of famous company including the company of the complainant. They were also alleged to be doing money laundering of foreign currency. The accused have illegally and un-authorizedly made copies of their master head and have stolen company information and were printing duplicate copies of the papers and distributed in USA, Canada and UK which has harmed his professional image and the accused have misguided the NRI community abroad. He requested the DIG to get their computer checked as the accused had prepared illegal master head of Aawaz-e-Punjab for duplicate publication purposes. On the basis of this information a case was registered and the premises were raided and found that accused Virat Sapra was Bureau Chief of ABC Radio Complex, Model House, Jalandhar and Puneet, Yadwinder Singh, Kamal Arora and Surjit are working with him. Five computers and Internet Connection was installed by the accused and stated that they are working for Darshan Singh Bains and others, whose news paper is being published at Toronto. After stealing magazines, photos from the other newspapers, they scanned the same and sent the same through Internet to Canada. They also prepared pamphlets for terrorists groups who are residing in Canada, USA and UK. They also prepared fake CD cover, foreign books, magazines CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -3- and apart from this accused are also doing the work of Hawala. On checking the computer, there was material sent from Canada regarding terrorist groups. Certain papers, one bearing photo of KPS Gill and a citation that he would be killed soon by Babbar Khalsa International were taken into possession vide separate memo. Accused were arrested."
It was an allegation against all the accused that they have printed and published documents Ex.P-31 to P-51, containing seditious and inflammatory material against interest of the State. To support above allegations, basic reliance was placed upon the FSL Report Ex.P14/A regarding data which was retrieved from a computer, recovered at the time of investigation.
The process of law was started on a fax message, received by DIG, Police, Jalandhar, indicating towards illegal activities of the respondents/accused. Initially, the case was registered for violation of the provisions of the Copy Right Act, 1957 and after enquiry, an FIR was registered for commission of offences under Sections 124A and 153A IPC. It has come on record that on 22.2.2005, search was conducted at ABC Tower, Model House, Jalandhar the offending material including numerous document, a monitor, key board, CPU, UPS, fax machine etc. were taken into possession against a recovery memo. It has also come on record that PW-4 Major Singh has sold the property in dispute, from where the documents were recovered, to Kanwar Sandeep Singh @ Sunny Bains (proclaimed offender) in the year 2004. Recovery of the documents has also been supported by Raj Pal Singh Sandhu PW-5, Surinderjit Singh PW- CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -4- 6 and Satwinder Singh PW-9, before whom, it is alleged that the respondents had made an extra judicial confession, admitting their guilt.
On completion of investigation, final report was put in Court. Accused were arrested in the meantime. Copies of the documents were supplied to the accused as per norms. Case was committed to the competent Court for trial vide order dated 7.8.2006. The respondents- accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution produced 14 witnesses and also brought on record documentary evidence to prove its case. Prosecution's evidence was closed vide order dated 15.5.2010.
On conclusion of the prosecution's evidence, separate statements of all the respondents-accused were recorded under Section 313 Cr.P.C. They were apprised of the incriminating circumstances appearing against them in prosecution's evidence, which they denied, claimed innocence and false implication. It was specifically stated by them that rivalry is going on between Daily Ajit, a newspaper published at Jalandhar and Ajit Weekly published at Toronto (Canada) by Darshan Singh Bains, Vinni Bains and Sunny Bains. On account of that rivalry between the two newspapers, they have falsely been implicated in this case. It was further stated that no material was recovered from them, as alleged by the prosecution.
It has come on record that process of investigation was started at the instance of one A. Dhillon, when he sent a complaint through fax massage to DIG, Police, Jalandhar, regarding the illegal activities of the CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -5- respondents/accused. Said Mr. Dhillon was not joined in the investigation. No efforts were made by the prosecution Agency to establish identification of the above person. His statement was not recorded. He was only shown as a witness in the final report. It has also come on record that for the first time, the building in question was searched on 22.2.2005 and allegedly some offending material was seized. It is further case of the prosecution that again the above building was searched on 1.3.2005 and again some offending material was collected.
By noting above fact, the trial Court has rightly held that once the building was raided on 22.2.2005, it is not expected that thereafter the respondents would continue to carry out their activities in the said building, would keep other incriminating material, which allegedly was recovered on 1.3.2005. Regarding recovery of alleged offending material on 1.3.2005, different version was given by the independent witnesses i.e. PW-1 Balwinder Singh, who has deposed that on 22.2.2005 locks of the rooms were opened by the police and at that time no one was found sitting and working inside the building in question.
By giving sufficient reasons in Para Nos. 25 and 26 of the judgment under challenge, the trial Judge has rightly opined that once it has come on record that the building was already in possession of the police officials, the recovery of offending material becomes doubtful. It has come on record that the articles, which were recovered on 22.2.2005, were not sealed properly. The seals after use were not handed over to the independent witness. It is also noted that there is discrepancy regarding CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -6- the date of recovery of the articles Ex.P30 to P-58. It was case of the prosecution that PW-8 Gagandeep had seen the accused sticking offending bills, pamphlets on the walls. In the witness box, above person failed to give the exact time, date and month when above activities were carried out by the respondents/accused. The delay in recording the matter to the police in that regard, was not explained on record. PW-9 Satwinder Singh, a witness to the extra judicial confession, had failed to identify most of the accused in Court. The accused were not in close relationship with him, noting which the trial Court rightly said that there was no occasion for the respondents/accused to repose faith in him. It was also found, as a matter of fact, that most of the documents are photostat copies of the news clippings and none was proved to have been signed by any of the accused. Regarding taking into possession of the computers and operating those computers, the trial Judge has noted as under :-
"The testimonies of PW6 and PW7 is important in this regard. PW6 C-II Surinderjit Singh in his cross examination has stated that at that time hard disk of that computer was not taken into possession by any one, neither computer from which the print out was taken was sealed at that time. He has further stated that he had not operated any of the computer available there and that computer produced in the court today are not in working condition. He has further admitted that Ex.P32 to Ex.P42 are bearing date 3.3.2005 and that printouts which were given to them by the accused do not bear the signature of any of the accused. He had admitted that Ex.P30 is photocopy and is not printout. Admittedly no e- mail ID of the accused has been placed on the record nor CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -7- does the same figure in the investigation. The version is that accused were receiving the data through Internet and thus, same could have been received by them on their e-mail, but no such e-mail ID is mentioned anywhere. Even the phone numbers which were in use by the accused in the building have not been mentioned anywhere in the investigation or evidence, nor any record qua the same has been placed on the file. This is also a glaring defect in the investigation and case of the prosecution. No modem has been recovered which was required in case internet was being used at the site on the computers. The reasons as to why hard disk of the computer was not taken into possession on the same day is also not explained. Further the reason as to why the original printouts have been withheld and photocopies or fax copies have been placed on the file is also not explained.
PW7 Dr. Murti is the Forensic Science Expert and his testimony is also very material. As per the version of the prosecution, five hard disks were recovered from the spot and were all sent to the CFSL for examination and PW7 has specifically stated in his report that statements "the fight for Khalistan; Sikh Separatism in Punjab, India from 1984-1999"
and the declaration of independence of Sikh Homeland' stated in the photocopies provided by the IO have been found downloaded and printed directly from the website and the proof of the same is shown in page numbers 27 and 28. He has further stated that websites containing obscene images were visited using hard disks H1, H2, H5 and that it was not possible to document upon the number of copies printed using the hard disks suing H1 to H5. Documents examined by him are Ex.P59 to Ex.P86. As per CFSL report of this witness, the only document which was found on the hard disk is Ex.P85 and the same has been directly downloaded from Internet. CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -8- The report does not speak specifically of any other documents downloaded. Document Ex.P62 to Ex.P73 and Ex.P79 to Ex.P82, Ex.P85 and Ex.P86, Ex.P62 is print out of front page of Aawaz-e-Punjab. Ex.P63 is only titled Ajit Weekly. Ex.P67 to Ex.P73 bears designs and logo. Ex.P79 to Ex.P82 pertains to advertisements. Ex.P85 is letter which is stated to be seditious and relates to the fight for Khalistan and this document appears to be an article by one Bianca Karim and Ex.P86 is front page of website Khalistan net which is under construction as per page itself. From the above documents nothing is brought on record to show that the same are seditious documents. Report of the expert in this regard also shows that hard disk did not contain the entire documents as mentioned in the version of the prosecution. The printed material on the letter head has not been retrieved. Even otherwise any documents or any material loaded on a computer would have definitely found place on the hard disk itself.
The above evidence in no manner proves that the seditious material was downloaded or printed by the accused or that the same was circulated/distributed by them. Infact, from the entire evidence, it is not proved that the alleged incriminating material was actually recovered from the accused. The entire prosecution version regarding the mode and manner of recovery of documents from the ABC Towers from the accused is highly doubtful and the same is not proved on record. There are major discrepancies in the statements of the prosecution witnesses regarding recovery of alleged incriminating material and they are all in contradiction to each other. The version regarding extra judicial confession is also not believable, as discussed above.
There is no evidence that any printing press was being CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -9- run in ABC Towers by the accused. Nothing is on record to show that the accused were working for Vinny Bains or were his employees or were running any publication/printing office for accused Vinny Bains. None of the documents allegedly handed over by accused to the IO bear their signatures. Nothing precluded the Police from taking the signatures of the accused on those documents which had been printed out and handed to Police by the accused. Moreover, some of the documents recovered are of date 3.3.2005, after the date of alleged recovery i.e. 22.2.2005 and same also creates a heavy shadow of doubt on the prosecution version."
The trial Court has also rightly held that there is no evidence on record that any printing press was being run in ABC Tower and further that the accused were working for Vinny Bains as alleged. After looking at the contents of the documents Ex.P-31 to P-36, the trial Court rightly came to a conclusion that those documents do not make out a case against the respondents/accused under the provisions of Section 124A and 153A IPC. When exonerating the accused/respondents from the above charges, the trial Court has noted as under :-
"The accused have been charged for offences under Sections 124A, 153 IPC. The ingredients of the above sections are not proved in the present case. In a charge under Section 124A IPC, it was incumbent upon the prosecution to prove to the hilt that the intention of the writer or the speaker, whoever he may be, is to bring or attempt to bring into hatred or contempt or excite or attempt to excite dissatisfaction towards the government. There is not an iota of evidence to show that the accused were involved in doing any such act. The prosecution has not been able to prove that any such alleged CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -10- seditious material was published and circulated by the accused in any manner and that as such, they attempted to incite hatred. As discussed above, the version of PW regarding bills/posters being pasted on walls has not been found believable. Even otherwise, the said PW stated about posters being pasted on walls, but no posters have been recovered by the Investigating agency from the accused. Posters and letter heads are absolutely different material. No evidence of distribution and circulation of seditious material by accused is proved on record by the prosecution. Similarly, there is no evidence that the accused had published, printed or distributed or circulated any such material which would promote hatred, ill will or feelings of enmity. The intention to cause disorder or incite people to violence is a sine qua non of the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed. However, no such evidence has been brought on the file. Even the alleged recovery of documents and other articles is rendered doubtful in light of the facts discussed above. In the absence of any such convincing evidence, it cannot be said that the charge against the accused is proved by the prosecution."
At the time of arguments, by making reference to the record of the lower Court, counsel for the applicant has failed to indicate that any material evidence was ignored by the trial Judge. He has also failed to indicate any misreading of evidence, which may necessitate interference in this application at the instance of the applicant. The view expressed by the trial Court is perfectly justified and as per evidence on record.
Their Lordships of the Supreme Court in 'Allarakha CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -11- K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748', held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in 'State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775', while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991 (1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Similarly, in State of 'Goa v. Sanjay Thakran, (2007) 3 SCC 755', and in 'Chandrappa v. State of Karnataka, (2007) 4 SCC 415', it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In 'Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -12- misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602', the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for." Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
CRM No. 41802 of 2012 in/and CRM-A No. 583-MA of 2012 -13- "10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Counsel for applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
Otherwise also, no plausible explanation has been furnished for causing delay of 21 days in filing the appeal.
Accordingly, both the applications are dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge 16.1.2013 Ashwani