Delhi District Court
State vs . Satpal Singh Etc. on 22 March, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 201/2013
State Vs. Satpal Singh Etc.
FIR No. 418/1991
PS Nangloi
22.3.2014
ORDER:
On 21.1.2014 an application has been filed by the Special Public Prosecutor Sh. B.S. Joon. Though the application is titled under Section 216 Cr.P.C. for alteration/ addition of charges, but after going through the same it is writ large that this is ineffect an application under Section 319 Cr.P.C. masqueraded under Section 216 Cr.P.C. since by way of this application the Special Public Prosecutor in fact is praying for cognizance against certain persons (Police Officers attached to Police Station Nangloi) who have not been arrayed as accused in the charge sheet. Three main issues have been agitated in the application Firstly that the accused before this Court namely Satpal Gupta, Dalel Singh, Ram Pal Singh, Karan Singh, Prem Chand (now expired) and Ram Niwas (now expired) had been charge sheeted for the offences under Section 147, 148, 149, 302, 396, 436, 217, 221 Indian Penal Code along with offence under Section 295 (A) Indian Penal Code for deliberately and maliciously intended to outrage the religious feelings of any class by insulting its religion or religious place, which charge St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 1 of 31 has however not been framed. In this regard, the Special Public Prosecutor has placed his reliance on the statement of Sardar Gurbachan Singh under Section 161 Cr.P.C. dated 24.9.1991, 18.3.1993 and 5.8.1994 wherein he had alleged that the accused had called a Barber to the Police Station on 3.11.1984 and got his hair cut forcibly despite resistance/ objection which was maliciously done with an intention to insult his religious beliefs/ feelings and in this regard he also place his reliance on the statements of witnesses Kuldeep Singh and Devender Kaur. It is argued and pleaded that the charge dated 1.3.2004 is silent about the aforesaid statement of witnesses and no charge under Section 295 (A) IPC has been framed.
Secondly that it has emerged from the evidence on record that apart from the accused persons, Inspector Rampal Singh the then SHO Police Station Nangloi, SI Dalel Singh, the then ACP Amarender Kumar Singh and the then SHO R.S. Dahiya are responsible for destroying the relevant record relating to AntiSikh Riots of 1984 of Police Station Nangloi which they did despite the registration of the present FIR on 28.8.1991 and deliberately in order to save the accused persons in the present case. In this regard Sh. B.S. Joon Special Public Prosecutor has placed his reliance on the testimony of HC Kishori Lal (PW14) who has placed before the court the orders relating to destruction of records vide Ex.PW25/B and Ex.PW25/C indicating that the said record was destroyed on 5.2.1992 by the then SHO and ACP. He further place his reliance on the letter dated 26.8.1991 (Ex.PW25/B) which according to Special Public Prosecutor is St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 2 of 31 specific to the effect that the DCP West had sought an information as to whether the said record was required for any purpose or not but the aforesaid officers along with the accused Ram Pal Singh and Dalel Singh without giving any intimation to the DCP West destroyed the entire record on 5.2.1992 which Ex.PW25/C which has been done only to screen the offenders/ accused persons (Ram Pal Singh and Dalel Singh).
Thirdly the invocation of the provisions of Section 120B Indian Penal Code against the accused along with the aforesaid police officers named in the application in respect of the offences under Section 201 IPC (causing disappearance of evidence of offence to screen the offender) has been sought by the Special Public Prosecutor and in support of his averments he has placed his reliance on the judgment in the case of Sanichar Sahni Vs. Bihar in Criminal appeal No. 772/2008 decided on 26.5.2009. Ld. Special Public Prosecutor has also placed his reliance on the judgment of Hon'ble Supreme Court in the case of State of Gujarat Vs. Kishanbhai Etc. in Criminal Appeal No. 1485/2008 decided on 7.1.2014 to buttress his argument that for any faulty investigations conducted, the benefit of the same should not be given to the accused.
A reply has been filed by Chaudhary Ram Kishan Ld. Counsel appearing on behalf of all the accused who has raised a preliminary objection with regard to the maintainability of this application on the ground that it is vague, non specific, misleading and intended to delay the conclusion of the trial of the case which is pending for the last Twenty Two St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 3 of 31 years. He has submitted that the contents of the application are misconceived, vexatious and delaying tactics and even previously the same Special Public Prosecutor Sh. B.S. Joon had moved an application under Section 311 Cr.P.C. for recalling of witness Gurbachan Singh which he did at the fag end of the trial i.e. at the stage of final arguments which application was hotly contested and argued by Sh. B.S. Joon and Sh. H.S. Phulka Senior Counsel representing the Gurdwara Committee and was rejected by the Predecessor Court of Sh. S.K. Sarvaria the then District Judge. Chaudhary Ram Kishan has pointed out that now at that stage neither Sh. B.S. Joon nor Sh. H.S. Phulka invoked the provisions of Section 295 (A) IPC being satisfied that there was no substantial element to support this allegations but now this application has been mischievously moved at this belated stage.
On merits Chaudhary Ram Kishan Advocate has pleaded that under no circumstances the provisions of Section 295 (A) IPC can be invoked at this stage by placing his reliance upon the first statement made by the witnesses to the police under Section 161 Cr.P.C. since the said witness has appeared in the Court and deposed on merits and now after the application of the State under Section 311 Cr.P.C. was dismissed on merits, this application is a ruse by the prosecution to somehow get a recall of the witness Gurbachan Singh in the Court on one pretext of the other which cannot be done.
St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 4 of 31 Further, Chaudhary Ram Kishan Advocate has submitted that even otherwise in so far as the offence under Section 295 (A) IPC is concerned no sanction under Section 196 Cr.P.C. against the accused for the said offence has been given by the State and hence the said charge cannot be invoked. He has pointed out that the existence of sanction under Section 196 Cr.P.C. is sine qua non for taking cognizance qua the accused persons.
In so far as the issue relating to destruction of departmental record by ACP Amrender Kumar, Inspector R.S. Dahiya etc. is concerned, it is argued by Chaudhary Ram Kishan Advocate that the said issue is irrelevant to the present case and even otherwise the Investigating Officer of this case had seized the documents for the period relating to the riots of 1984 of Police Station Nangloi from Delhi Administration which has been requisitioned by the Administration from the local police and the prosecution has already relied upon the said documents. Hence, there being no prejudice caused, there is no question of framing the additional charge against the accused present in the Court and also not so arrayed for destruction of records. He further submits that even otherwise the issue relating to destruction of records does not form a part of the single part or series connected together so as to form the same transaction as contemplated under Section 220 & 221 Cr.P.C. the said persons cannot be summoned or tried in the present FIR nor the said charges can be invoked against the accused already facing trial in the present case. St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 5 of 31 Vide order dated 1.2.2014 after considering the rival contentions, the following queries were put by this Court to both the State and Defence for their response:
1. What is the specific record relevant to the issues involved in the present case has been destroyed and when?
2. What specific entries in the said record so destroyed are Evidence of Relevant Facts forming a part of the same transaction which should have been brought before the Court but could not be produced on account of destruction?
3. Whether this act of destruction of record was deliberate or intended to screen the offenders?
4. Who was the actual authority during the relevant period, under the Statutory Law/ Mandatory Rules governing destruction of records responsible for directing the said destruction and who are the persons involved in the actual destruction of record?
5. In view of the fact that the Investigating Officer of the present case had seized the documents for the period relating to the riots of 1984 of Police Station Nangloi from Delhi Administration which was requisitioned by the Administration from the local police and the prosecution has already relied upon the said documents, what prejudice has been caused to the case of the prosecution and how it tends to affect the outcome/ conclusion of the case?
6. What is the evidence to show the prior meeting of mind, common St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 6 of 31 object, which make the accused already arrayed and the persons whom the Special Public Prosecutor seek to array as accused liable for the offence of Conspiracy under Section 120B IPC?
7. Was this aspect of destruction of records which were relevant evidence in the present case, a subject matter of investigations in the present case and what were the conclusions of the investigating officer in case if it was investigated?
8. Was this aspect highlighted at the time when the cognizance of the offences were being taken by the competent court and in case it was, then what was the view taken by the Court thereof?
9. Since existence of a sanction under Section 196 Cr.P.C. is a sine qua non for taking cognizance of the offence under Section 295 (A) IPC as against the accused persons, where is this Sanction has been given by the State under Section 196 Cr.P.C.?
10. Whether the record which was destroyed containing the relevant evidence was pursuant to an act performed by a Public Servant while acting or purporting to act in discharge of official duty? If yes, the existence of a sanction under Section 197 Cr.P.C. being sine qua non for taking cognizance of offence against such public servant, where is this Sanction given by the State to prosecute these public servants i.e. Inspector Rampal Singh Rana the then SHO PS Nangloi (accused in the present case), SI Dalel Singh (accused in the present case), the then SHO Inspector R.S. Dahiya (not arrayed St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 7 of 31 as an accused) and the then ACP Amarender Kumar Singh (not arrayed as an accused) against whom the Special Public Prosecutor seeks proceedings?
The DCP (West)/ DCP (Legal) were also directed to place before this Court the statutory Rules governing the destruction of official records of Delhi Police relating to Roznamcha A & B including P.P. Paschim Vihar, Road Certificate, NCR books, Filled inquests, untrace and cancelled files and all kinds of Kalandras. This Court also directed that in case if there were any office orders/ standing orders issued by the Police Department during the period 19911992 so governing the destruction of records, the same be also placed before this court.
Pursuant to the above, the Ld. Special Public Prosecutor has filed a detailed reply. In reply to Issue No.1 it is submitted that the inquest reports, photographs of the burnt hours and place of occurrence, postmortem reports, Roznamcha A and B, Road Certificates, NCR Books and Crime Team Reports have been destroyed. It is further submitted that according to letter Ex.PW25/B & C the above records pertaining to 1984 riots were destroyed on 5.2.1992 in Police Station Nangloi in the presence of the then SHO R.S. Dahiya and the then ACP Sh. Amrinder Kumar Singh which fact has been corroborated by HC Kishori Lal (PW14).
In reply to Issue No.2 (what specific entries in the said record so destroyed are Evidence of Relevant Facts forming a part of the same St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 8 of 31 transaction which should have been brought before the Court but could not be produced on account of destruction), it is submitted that the entry regarding the shifting of the complainant and aggrieved persons in the Police Station Nangloi on 3.11.1984 where Inspector Rampal Singh Rana made inquiries from the victim and thereafter shifting the victims to Gurudwara Tilak Nagar and again inquiries were made there by the same accused from the victims/ aggrieved persons. The statements recorded in the proceedings under Section 174 Cr.P.C. by the Police/ Executive Magistrate. Photographs of the burnt house of the victim Gurbachan Singh, lifting of sample from the place of occurrence and the entry regarding the cremation of the bodies. It is pointed out that according to the statement of HC Kishori Lal (PW14) the entire record pertaining to antisikh riots of 1984 has been destroyed on 5.2.1984, which has caused great prejudice to the interest of the State as well as the interest of the aggrieved persons.
In reply to Issue No.3 (Whether this act of destruction of record was deliberate or intended to screen the offenders?), the Ld. Special Public Prosecutor has submitted that the act and conduct of the accused persons and other police officials involved in destruction of the record was deliberate and intentional since it is obvious from the letter Ex.PW25/B that the DCP (West) had sought intimation within 15 days, as to whether the record in question was required or otherwise but strangely no such information was forwarded by the concerned police officials of Police Station Nangloi to the office of DCP (West) in this regard despite specific St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 9 of 31 directions. It is further submitted that the accused persons were the direct beneficiaries of the destruction of record and the investigator as well as the accused persons are from Delhi Police. It is pointed out that the record favouring the accused persons i.e. DD No.18A Ex.PW16/A6 and logbook of the official vehicle of Police Station Nangloi Ex.PW26/D1 are still available on file whereas the other relevant records had already been destroyed on 5.2.1992 despite the registration of the FIR and pending investigation of the case on the aforesaid day.
In reply to Issue No. 4 (Who was the actual authority during the relevant period, under the Statutory Law/ Mandatory Rules governing destruction of records responsible for directing the said destruction and who are the persons involved in the actual destruction of record?) it is submitted that the said issue pertaining to Delhi Police which is the appropriate authority to explain the same but the destruction of records was completed in the presence of R.S. Dahiya the then SHO and Sh. A.K. Singh the then ACP at the relevant time on 5.2.1992.
In reply to Issue No. 5 (In view of the fact that the Investigating Officer of the present case had seized the documents for the period relating to the riots of 1984 of Police Station Nangloi from Delhi Administration which was requisitioned by the Administration from the local police and the prosecution has already relied upon the said documents, what prejudice has been caused to the case of the prosecution and how it tends to affect the outcome/ conclusion of the case?), it is submitted that except Ex.PW25/B St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 10 of 31 & C no other document was seized by the IO from Police Station Nangloi since the entire relevant record of 1984 riots had already been destroyed in the year 1992. It is pointed out that the IO had seized some documents from the office of Delhi Administration which are formal in nature, except the three affidavits and statements made to the commission during the inquiry. It is further submitted that in the absence of actual relevant record pertaining to the incident of 1.11.1984 being already destroyed a great prejudice has been caused to the case of the prosecution and also to the interest of the victims. It is also submitted that since the material record has already been destroyed by the concerned police officials the prosecution is handicapped in proving its case and the Prosecution is not in a position to secure the record.
In reply to Issue No.6 (What is the evidence to show the prior meeting of mind, common object and make the accused already arrayed and the persons whom the Special Public Prosecutor seeks to array liable for the offence of Conspiracy under Section 120B IPC?) it is submitted that the Investigating Agency as well as the accused persons are from Delhi Police and there cannot be any direct evidence to prove the prior meeting of mind and common object between the conspirators. It is submitted that the present accused are the direct beneficiaries of the destruction of records and the other two police officials as stated above did not send any intimation to the office of DCP (West) as directed, which is sufficient to establish prior meeting of mind and common object between them.
St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 11 of 31 In reply to Issue No. 7 (Was this aspect of destruction of records which were relevant evidence in the present case, a subject matter of investigations in the present case and what were the conclusions of the investigating officer in case it was investigated?), it is submitted that the aspect of destruction of record was not investigated by the IO of the case during the course of investigations and even if the IO has not investigated this aspect during investigations this Court is fully competent to take appropriate action in this regard at this stage.
In reply to Issue no.8 (Was this aspect highlighted at the time when the cognizance of the offences were being taken by the competent court and in case it was, then what was the view taken by the Court thereof?) it is submitted that the aspect of destruction of records was not highlighted at the time of cognizance of the offences as the alleged offences were not investigated during the course of investigation and the present case was badly investigated where the IO has failed to collect the material evidence.
In reply to Issue No.9 (Since existence of a sanction under Section 196 Cr.P.C. is a sine qua non for taking cognizance of the offence under Section 295 (A) IPC as against the accused persons, where is this Sanction given by the State under Section 196 Cr.P.C.?) it is submitted that since the case was not properly investigated in accordance with law hence despite the offence under Section 295A IPC added in the charge sheet, IO did not take steps to obtain sanction under Section 196 Cr.P.C. for the said St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 12 of 31 offence.
In response to the Issue No.10 [Whether the record which was destroyed containing the relevant evidence was pursuant to an act performed by a Public Servant while acting or purporting to act in discharge of official duty? If yes, the existence of a sanction under Section 197 Cr.P.C. being sine qua non for taking cognizance of offence against such public servant, where is this Sanction given by the State to prosecute these public servants i.e. Inspector Rampal Singh Rana the then SHO PS Nangloi (accused in the present case), SI Dalel Singh (accused in the present case), the then SHO Inspector R.S. Dahiya (not arrayed as an accused) and the then ACP Amarender Kumar Singh (not arrayed as an accused) against whom the Special Public Prosecutor seeks proceedings], it is submitted that no sanction under Section 197 Cr.P.C. is required against the accused, in respect of acts which have no nexus or connection to the discharge of their official duties since tampering the record/ entries made in official registers, cannot be related to discharge of official duties. It is pointed out that once it is established that official records have been tampered with or destroyed by the public servants with a view to screen the offender or to destroy the material evidence, no sanction under Section 197 Cr.P.C. is required. Reliance is placed on the judgments of State of Maharastra Vs. Deva Hari, Deva Singh Pawar & Others reported in 2002 Cr.L.J. 1593 SC and 2012 Vol. 2 AD (Cr.) SC 201. It is further submitted that the act of destroying the entire record relating to AntiSikh riots of cases 1984 was not in accordance St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 13 of 31 with the statutory rules governing the destruction of records and the sole aim and object was to help/ screen the accused persons from legal punishment. It is also submitted that the case was neither investigated properly nor the prosecution was conducted in a professional manner and the act of the accused persons was an attempt to frustrate the course of Justice. The Ld. Special Public Prosecutor has further submitted that the provisions of Section 220/221 Cr.P.C. are not applicable as the acts/ offences were committed in the course of same transaction and no separate FIR is required for the said offences. He has places his reliance on the judgment on Amit Bhai Anil Chandra Shah Vs. CBI reported in 2013 Vol. 2 AD (Cr.) SC 509 and has pointed out that in the case of Hardeep Singh Vs. State of Punjab, Crl. A. Nos. 17501751 of 2008, SLP Nos. 9184 of 2008, 7209 of 2010, 5724 of 2009, 5975 of 2009, 9040 of 2010, 5331 of 2009, 9157 of 2009 and 45034504 of 2012 it was held by the Hon'ble Supreme Court that a person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C provided from the evidence, it appears that such person can be tried along with the accused already facing trial.
A detail reply has also been filed on behalf of the accused persons wherein it is submitted that the issues raised by Sh. B.S. Joon in his application are not relevant to the just decision of the case and are frivolous, vexatious and tactics to delay the disposal of the case. It is further St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 14 of 31 submitted that the perusal of Ex.PW14/A & B shows that the documents mentioned at serial no. 2 to 6 have no relevancy to the disposal of the present case in terms of the charges framed against the accused. It is also submitted that all the cases including the present case were transferred to the Riot Cell and the inquests so conducted were placed on the judicial file of case FIR No. 351/84 registered on 1.11.1984 at Police Station Nangloi and all eleven persons were sent for trial in the said case which was decided by the Ld. ASJ on 23.5.1989 thereby acquitting all the accused therein. It is further submitted that no inquest proceedings pertaining to this case were held since no dead body was found on 1.11.1984 or thereafter as is alleged in this case. The Ld. Counsel has further submitted that Inspector Ram Pal Singh Rana the then SHO of Police Station Nangloi did his best to protect the lives and properties of Sikhs at Police Station and even thereafter escorted the Sikh families to Gurdwara Sant Nagar including the family of Gurbachan Singh and efforts were made to record his statement but Gurbachan Singh refused to give any statement and never made any complaint to any authority despite sufficient authorities till 1995 when he allegedly filed an affidavit on 4.9.1985 before Ranga Nath Mishra Commission. In so far as the Roznamcha A & B of Police Station and PP mentioned at serial no.1 in Ex.PW14/A & B are concerned, it is submitted that the same were seized during investigations along with other relevant record mentioned in Ex.PW12/A and no prejudice has been caused to the prosecution since the entries have been proved through the witnesses. St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 15 of 31 The Addl. Deputy Commissioner of Police (West) has also filed a report and controverted the claims by the Special Public Prosecutor. He has placed his reliance on the Punjab Police Rules and the various Standing Orders of the department and has submitted that the records have been destroyed in regular course of business and after following due procedure so prescribed by law. As regards the statutory rules governing the destruction of official record relating to Roznamcha A & B including Police Post Paschim Vihar; Road Certificates; NCR Books; filed inquest papers; untraced and cancelled files and all kind of Kalandras are concerned, he has placed his reliance on the Standing Order No. 64 vide No. 32361600/ C & T/ ACV/PHQ dated 1.11.1998 which was in force during the relevant period. It is pointed out that subsequently in the year 2007 in suppression of the previous Standing Order, a new Standing Order was issued vide No. 26852782/C & T/ACV/ PHQ dated 17.1.2007 and the record was destroyed on 5.2.1992 as per procedure mentioned in the Standing Order No. 64/88. It is also submitted that in the year 1991, a letter vide No. 1123251/Genl. (W) dated 26.8.1991 regarding destruction of old record of Police Station Nangloi was issued by the then DCP/ West District and the same was circulated to all DCPs/ Distt./ Units including P/PTC & FRRO, Delhi/ New Delhi mentioning therein that "DCP/ West District office may please be intimated within 15 days, as to whether any record mention in the letter is required or otherwise. In case the reply not received in stipulated period of 15 days, a nil report will be treated and accordingly the record St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 16 of 31 will be destroyed. It is further submitted that all these proceedings took place before the registration of the present case bearing FIR No. 418/1991, Police Station Nangloi and since no request was received from any Unit hence the said record was destroyed on 5.2.1992 by R.S. Dahiya the then SHO/ Nangloi in presence of Sh. Amrendra Kumar Singh, the then ACP Nangloi and proper record of destruction was maintained and a certificate in this regard was also prepared and a copy of the same was sent to the DCP/ West office.
In his issuewise reply, the DCP (West) has submitted that the Ld. Special Public Prosecutor has not specified the details of the document so destroyed which was relevant evidence in this case.
The DCP (Legal) has placed before this court the relevant extracts of the Punjab Police Rules and the copies of the various Standing Orders relating to destruction of record which I have duly perused. I have also considered the rival contentions on the various issues agitated before me and also the authorities which have been relied upon and I observe as under:
Addition of Section 295(A) IPC:
The Special Public Prosecutor in his application has sought an amendment of charge by way of addition of Section 295 (A) Indian Penal Code and in this regard has placed his reliance on the statement of Sardar Gurbachan Singh under Section 161 Cr.P.C. dated 24.9.1991, 18.3.1993 and St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 17 of 31 5.8.1994 wherein the witness had alleged that the accused had called a Barber to the Police Station on 3.11.1984 and got his hair cut forcibly despite resistance/ objection which was maliciously done with an intent to insult his religious beliefs/ feelings and in this regard he also place his reliance on the statements of witnesses Kuldeep Singh and Devender Kaur. It is argued and pleaded that the charge under Section 295(A) IPC being invoked in the charge sheet the order on charge dated 1.3.2004 is silent on the aforesaid and hence he seeks the amendment of charge as aforesaid.
I have considered the submissions made before me and I may observe that the provisions of Section 295 (A) Indian Penal Code relate to deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and sanction of the Central/ State Government under Section 196 Cr.P.C. is sine qua non for taking cognizance of the offence under Section 295 (A) IPC qua the accused persons. In the present case not only has the Special Public Prosecutor failed to point out and bring any evidence on record to show that this act of cutting hair of Sardar Gurbachan Singh was deliberate and malicious or intended to outrage the religious feelings by insulting the religious beliefs of a class but has also conceded that no sanction under Section 196 Cr.P.C. has been obtained till date. Under the given circumstances the sanction under Section 196 Cr.P.C. being sine qua non for taking cognizance of the offence under Section 295 (A) IPC qua the accused persons, the question of invoking and addition of charge under Section 295 (A) IPC does not arise. St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 18 of 31 Summoning of the then ACP Sh. Amrender Kumar Singh, the then Inspectors Ram Pal Singh & R.S. Dahiya and the then SI Dalel Singh for destruction of records on 5.2.1992 after invoking the provisions of Section 120B and 201 IPC:
In the application filed by the Special Public Prosecutor, he has also alleged that apart from Inspector Rampal Singh and SI Dalel Singh i.e. the accused before this Court, Amarender Kumar Singh the then ACP and Inspector R.S. Dahiya the then SHO Police Station Nangloi who are responsible for destroying the relevant record relating to AntiSikh Riots of 1984 of Police Station Nangloi in order to save the accused persons in the present case despite the registration of the present FIR on 28.8.1991, are required to be summoned, charged and tried along with the accused before this Court. He has also prayed for invoking the provisions of Section 120B Indian Penal Code against the accused along with the aforesaid police officers named in the application in respect of the offences under Section 201 IPC (causing disappearance of evidence of offence to screen the offender). Ld. Special Public Prosecutor has place his reliance on the judgment of Hon'ble Supreme Court in the case of State of Gujarat Vs. Kishanbhai Etc. in Criminal Appeal No. 1485/2008 decided on 7.1.2014 and has argued that for the faulty investigations conducted by the Investigating Agency the benefit of the same cannot be given to the accused and hence he has prayed for summoning Sh. Amrender Kumar Singh the then ACP and Inspector R.S. Dahiya the then SHO to be tried along with the accused before this Court Inspector Ram Pal Singh and SI Dalel Singh.
St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 19 of 31 Before coming to the merits of the allegations involved, I may observe that it is settled law that the power under Section 319 Cr.P.C. is discretionary and this discretion must be exercised judicially having regards to the facts and circumstances of the case. Undoubtedly it is an extra ordinary power and should be used sparingly and only if compelling reasons exists (Lok Ram Vs. Nihal Singh reported in AIR 2006 SC 1892).
I may further note that for exercising discretion under Section 319 Cr.P.C. all relevant facts have to be kept in mind and order is not required to be made mechanically merely on the ground that some evidence has come on record implicating the person sought to be added as an accused. Also, the power of the court under Section 319 Cr.P.C. cannot be invoked on mere suspicion and there has to be sufficiency of material and compelling reasons for doing so. The scope of operation of Section 319 Cr.P.C. or the area of its play is limited to the case where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded during the inquiry or trial. This section does not apply to all situations and cannot be interpreted to be a repository of powers for summoning such persons to stand trial along with other arraigned before the Court. By virtue of Section 319 Cr.P.C. the Court in fact only takes cognizance against new accused but not of a fresh offence and in this regard the sub Section 4 (1) (b) of Section 319 Cr.P.C. is very clear. It is only when a Court has already taken cognizance of an offence by virtue of sub Section 4 (1) (b) of Section 319 Cr.P.C. a legal fiction is St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 20 of 31 created that the cognizance would be presumed to have been taken against the newly added accused as well.
Applying these settled principles of law to the facts of the present case, at the very Outset I may observe that all allegations made are general and non specific. The Special Public Prosecutor has vaguely stated that photographs of the damaged/ burnt house of Gurbachan Singh, samples lifted from the spot and entries regarding the cremation of dead bodies have been destroyed but has not been able to inform whether the photographs were actually taken or exhibits lifted from the spot or details of cremation entered in the Roznamcha's. Even before the alleged destruction of entire records of Police Station, the Ranganath Mishra Commission had already summoned and perused the relevant entries and records. Had these entries and records relating to photographs of property of Gurbachan Singh, lifting of exhibits from the spot and cremation of dead bodies been in existence and available at that time, I am sure it would have been produced before the Commission. Hence, for destruction of the record to take place the Special Public Prosecutor was required to first establish that the said record was actually in existence with the applicant having failed to establish before this Court that such record/ evidence was actually in existence, how can its destruction be agitated?
Secondly it has been admitted by the Special Public Prosecutor that the aspect of destruction of these record has not been investigated at all and even in the charge sheet there are no allegations as regards the same nor St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 21 of 31 any cognizance has been taken for the offence under Section 201 IPC against the accused Ram Pal Singh and Dalel Singh. The Special Public Prosecutor/ applicant was asked by the Court to inform as to what departmental record/ entries which was relevant evidence in the present case has been destroyed and how these entries/ records if any are evidence of Relevant Facts forming a part of the same transaction which should have been brought before the Court but could not be produced on account of destruction and the prejudice caused to the case of the prosecution and how it tends to affect the outcome/ conclusion of the case and also to place and highlight before this Court the fresh material/ evidence showing the prior meeting of mind, common object of the persons whom the Special Public Prosecutor seeks to array as accused along with the accused before this Court for the offence of Conspiracy under Section 120B IPC and for destruction of evidence under Section 201 IPC. Despite the same the Special Public Prosecutor appearing for the victims has failed to specify even a single entry/ record which was relevant evidence and should have been preserved and has not been so preserved and the consequential prejudice caused thereof. I also fail to understand how the issue relating to destruction of departmental record by the then ACP Amrender Kumar and the then Inspector R.S. Dahiya is relevant to the present case? The Investigating Officer of the present case had already seized the documents for the period relating to the riots of 1984 of Police Station Nangloi from Delhi Administration which was earlier requisitioned by the Administration St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 22 of 31 from the local police. The prosecution has relied upon the said documents during the trial and in this background of the relied upon material being already on record, the Special Public Prosecutor has failed to highlight any prejudice to the victims.
Thirdly I may observe that no doubt, the official record relating to Roznamcha A & B including Police Post Paschim Vihar; Road Certificates; NCR Books; filed inquest papers; untraced and cancelled files and all kind of Kalandras were destroyed on 5.2.1992 as admitted by the Delhi Police but it is evident that the said destruction was carried out as per the provisions of Delhi Police Rules and the Standing Orders therein after following due procedure. I may observe that the Daily Diary (Roznamcha A & B) is maintained as per 22.48 (1) PPR and also called Register No. II at Police Station and as per 22.51 PPR Chapter XXII, Volume No.3 (Page No.
925) these diaries may be destroyed Two years after the date of last entry (Reference in this regard is also made to SO No. 64 dated 1.11.1998). Further, the Inquest is maintained as per PPR Register No. VI Part IV i.e. Carbon copies of the reports of investigation into accidental deaths of human beings in which Forms 25.35 (1) A,B & C are submitted and a per 22.56 PPR Chapter XXII, Volume No. 3 (page No. 927) this register may be destroyed Seven years after the date of last entry (Reference in this regard is also made to SO No. 64 dated 1.11.1998). In so far as NCR Register is concerned, as per 24.3 PPR report of Non Cognizable offence is recorded in teh Station Diary which is Daily Diary as per 22.51 PPR Chapter XXII, St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 23 of 31 Volume No.3 (Page No. 925) these diaries may be destroyed Two years after the date of last entry (Reference in this regard is also made to SO No. 64 dated 1.11.1998). Further, the Road Certificate is maintained as per form No. 10.17 PPR and also called Register No. XXI at Police Station and as per 22.72 PPR Chapter XXII, Volume No. 3 (page No. 933) these Road Certificates Book shall be destroyed when the last certificate therein in Three years old (Reference in this regard is also made to SO No. 64 dated 1.11.1998). In so far as the Cancellation and Untrace files (related to offences punishable of more than two years imprisonment) are concerned, as per 27.39 (5) (i) PPR Chapter XXVII, Volume No. 3 (Page No. 11761177) files of all traced/ decided cases, untraced of bailable offences including cancelled cases will be removed and destroyed after Two years from the date of decision of the case in the Trial Court provided that no appeal or revision in the case is pending in the Appellate Courts. Untraced bailable cases including cancelled cases will be removed and destroyed after Two years from the date on which the Magistrate has passed orders about the case being kept as untraced or cancelled as the case may be (Reference in this regard is also made to SO No. 64 dated 1.11.1998 according to which the files of all traced/ decided cases, untrace of bailable offences can be destroyed after Two years to be counted from the date of final orders of Court provided no appeal/ writ petition is pending in the court of law). Also, as per PPR Chapter XXVII, Volume No. 3 (Page No. 11761177) untraced non bailable cases in which action under Section 512, Code of St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 24 of 31 Criminal Procedure has not been taken will be removed and destroyed after Five years from the date of order of the Magistrate for keeping the case as untraced (Reference is also made to SO No. 64 dated 1.11.1998 according to which the files of untraced nonbailable cases in which action under Section 299 Cr.P.C. has not been taken, can be destroyed after Five years from the date of order by the Court). Further, as per 27.39 (5) (iii) PPR Chapter XXVII, Volume No. 3 (Page No. 1178) untraced bailable and non bailable cases in which action under Section 512, Code of Criminal Procedure has been taken, will be removed and destroyed after Five years from the date of conclusion of proceedings under Section 512 Cr.P.C. (Reference is also made to SO No. 64 dated 1.11.1998 according to which the files of untraced bailable or nonbailable cases in which action under Section 299 Cr.P.C. has been taken, can be destroyed after 30 years. The period of 50 years was reduced to 30 years by amendment in the rule with the prior approval of the DLG, Delhi conveyed vide Delhi Administration's Letter No. F.5 (53)/67 Home (P) Ltd. dated 14.09.1967). In so far as the Log Books are concerned, Rule 11.31 of PPR chapter No. XI, Volume 1 (Page No. 439) is application to the retention and destruction of Log Books, which Rule provides that the process of eliminating superfluous records shall be carried on continuously under the order of the head clerk and no file shall be considered for destruction till it has been three years in the 'Old Records'. Files in the 'Old Records' shall be kept in two classes (a) miscellaneous and general (b) special. No special file shall be considered for destruction till it has been St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 25 of 31 Ten years in the old records. Accordingly three years old record is destroyed after taking NOC from all Districts/ Units of Delhi Police. Further, in so far as the Kalandras are concerned, they are maintained as per PPR Register No. VI PartIII i.e. Carbon copies of all reports submitted for action under IPC, Cr.P.C. or Local and Special Laws such as prosecution under Section 182 IPC, preventive security under the Cr.P.C. or action against village officials under the Punjab Laws Act when no FIR or charge sheet is submitted. As per 22.56 PPR Chapter XXII, Volume No.3 (Page No. 927) this register may be destroyed seven years after the date of last entry (Reference in this regard is also made to SO No. 64 dated 1.11.1998 according to which Kalandras under Section 107/151 Cr.P.C., inquest and offences punishable under provisions of Section 80 to 96 D.P. Act 1978 can be destroyed after seven years).
Fourthly admittedly, neither the victims nor the Investigating Agency i.e. Special Investigation Cell to whom the investigations of all the Riot Cases including the cases of Police Station Nangloi were transferred vide departmental order bearing No. 6854/PHQ dated 28.11.1984, have at any point of time requested for preservation of any specific record of the Police Station being relevant evidence in cases. Hence, under the given circumstances when the victims and so also the Special Investigation Cell so investigating the 1984 Riot Cases themselves having failed to request and seek the preservation of the relevant record, it does not lie in their mouth to now rakeup this issue after Twenty Nine years.
St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 26 of 31 Fifthly the Special Public Prosecutor has also conceded that till date no application or request has been filed before the Ld. MM under Section 173 (8) Cr.P.C. for directing further investigations on the aspect of destruction of record to screen the accused before this Court from punishment pursuant to a criminal conspiracy by the then ACP Sh. Amrender Singh and the then SHO Inspector R.S. Dahiya. I fail to understand under what provisions of law now this request has been made to this Court at this belated stage? It is only where additional material has come on record as evidence that the Trial Court can summon the additional accused on the same but it is not open for the Session Court trying the case to entertain such a request at the final stage where this material is not forthcoming.
Sixthly no cognizance having been taken by the Ld. MM in this regard it is not open for this Court, even otherwise, to take cognizance of this offence and to summon the additional accused by invoking the provisions of Section 319 Cr.P.C. since as per the provisions of Section 319 Cr.P.C. only an additional accused can be summoned for the offence for which the cognizance has already been taken but it does not entitle the Sessions Court to take a fresh cognizance. In the present case neither the aspect of destruction of records (if any) for purposes of screening the offenders has been investigated nor the relevant provisions invoked in the chargesheet nor cognizance has been taken of the same against the accused already arraigned and therefore, no fresh cognizance can be taken by this St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 27 of 31 Court in the given circumstances.
Seventhly in so far as the issue relating to invocation of provisions of Section 120B IPC i.e. Conspiracy is concerned, the allegations made by the Special Public Prosecutor are general. The allegations of conspiracy have to be specific and inpersonam and not in generalis. The Court is required to decide on the basis of cogent admissible evidence in order to charge any person for an offence or for violation of law. Charge cannot be framed on mere assumptions and presumptions however convincing they may sound. The allegations of conspiracy made in generalis do not obligate the courts of law to act and for charges to be framed the evidence should be cogent and admissible under law and not vague, non specific and general on mere assumptions and presumptions. In order to push home his point the Ld. Special Public Prosecutor has also argued that the investigations in the present case have not been conducted properly and are defective and benefit of the same should not be given to the accused persons. Rightly so, but this proposition would apply where material has been brought on record to justify the charges against the persons not arraigned as accused and the court under the given circumstances would be fully justified in joining other person as accused provided there is some material evidence brought on record against them but it certainly cannot overstep its jurisdiction. In the quest for Justice the Court has to search out the truth from the material placed before it by the Investigating Agency and it cannot step into the shoes of Investigating St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 28 of 31 Agency and start investigating and collecting the material itself. In the present case, as conceded by the Special Public Prosecutor no such material is either available or has come on record against Amrender Kumar Singh or R.S. Dahiya, then in this background how can they by summoned on mere assumptions to face trial along with the other arraigned accused?
Eighthly there is a presumption of bonafide's attached to the acts done by the Public Servants in their official capacity unless contrary is proved. The law of this Country and so also the Courts of Law accord protection to Government Servants/ Public Servants for bonafide omission and commission and protects them for bonafide mistakes, for in case if this is not done the Institutions of this Country will suffer decision paralysis with no one willing to take decisions even in routine matters. In the present case the Special Public Prosecutor has made vague allegations of conspiracy and has not been able to bring any material before this Court to show the prior meeting of mind between these officials i.e. the then ACP Sh. Amrender Kumar Singh, the then Inspector R.S. Dahiya with Inspector Ram Pal Singh and SI Dalel Singh to establish that the Orders for destruction of evidence were passed only the screen the accused from legal punishment. The legal process proceeds to act on cogent admissible evidence and not on emotional appeals and assumptions. No material has been brought on record to show that any of the persons who are already accused or those whom the Special Public Prosecutor seeks to bring before this Court as accused by invoking powers of the Court under Section 319 Cr.P.C., had St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 29 of 31 entertained any malafide intent which malafides should have been specifically pleaded and proved and not merely alleged on bare assumptions. It is only after the prosecution clears the first hurdle of establishing the malafide intent that it is then required to cross the second hurdle of obtaining the required sanction under Section 197 Cr.P.C. which is sine qua non for taking cognizance of the offence qua the accused persons for the act done in their official capacity. In the present case the Special Public Prosecutor has failed to establish the malafide intent which should have been specifically pleaded and proved and also to place before this court the statutory sanction required for prosecuting these public servants.
Lastly even otherwise, the issue relating to destruction of records does not form a part of the single part or series connected together so as to form the same transaction as contemplated under Section 220 & 221 Cr.P.C. the said persons cannot be summoned or tried in the present FIR nor the said charges can be invoked against the accused already facing trial in the present case.
Conclusions:
In view of my above discussion, I hereby conclude that the Special Public Prosecutor has failed to bring before this Court any material even primafacie which would show the complicity of the then ACP Sh. Amrender Kumar Singh and the then Inspector R.S. Dahiya in the criminal conspiracy alleged to have been hatched by the accused Dalel Singh and St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 30 of 31 Ram Pal Singh for destruction of record of the present case. Rather, there is a total failure to even highlight and establish if there existed any material which was relevant evidence and was required to be preserved and therefore in the absence of the same, the question of destruction does not arise. Assuming that some records (whose details the prosecution has otherwise failed to specify) were destroyed as alleged, even then Sh. Amrender Singh the then ACP and Inspector R.S. Dahiya the then SHO cannot be summoned and proceeded against in exercise of power under Section 319 Cr.P.C. in the absence of any sanction granted by the competent authority under Section 197 Cr.P.C. for prosecuting them as the existence of the sanction is sine qua non for taking cognizance of the offence qua them and hence in this background there is no question of framing the additional charge under Section 120B and 201 IPC against the accused Ram Pal Singh, Dalel Singh or against other officers of Delhi Police.
With these observations I hold that there has to be a finality attached to the issue involved which is required to be put to rest. This application of the Special Public Prosecutor which is now filed after Twenty Two years when the case is at the stage of final arguments, is bereft of all details having nexus to the case is accordingly dismissed.
Announced in the open court (Dr. KAMINI LAU) Dated: 22.3.2014 ASJII(NW)/ ROHINI St. Vs. Satpal Gupta Etc., FIR No. 418/1991, PS Nangloi Page No. 31 of 31