Punjab-Haryana High Court
Sukhpreet Kaur vs State Of Punjab & Ors on 24 August, 2017
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
CRM-M-20003 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-20003 of 2013 (O&M)
Date of decision: August 24, 2017
Sukhpreet Kaur
.....Petitioner
Versus
State of Punjab and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
Present: Mr. Vikram Chaudhari, Senior Advocate with
Ms. Isha Goyal, Advocate for the petitioner.
Mr. Abhishek Chautala, AAG Punjab.
Mr. Sumeet Goel, Retainer Counsel with
Mr. Sangram Singh, Advocate for the CBI.
****
A.B. CHAUDHARI, J (Oral)
CRM No.39785 of 2016 IN
CRM-M-20003 of 2013
Heard.
Application is allowed as prayed for. Counsel for the
petitioner is directed to carry out necessary amendment at the relevant
places.
CRM-M-20003 of 2013
The present petition has been filed by Sukhpreet Kaur wife
of Surajpal Singh, resident of Sandra, Tehsil Patti, District Tarn Taran
with the following prayers:-
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"It is, therefore, respectfully prayed that the present petition may kindly
be allowed and this Hon'ble Court may be pleased to issue appropriate
directions ensuring the safety and security of the petitioner as well as her
two minor children viz. a daughter aged 12 years and a son aged 7 years
respectively in view of the grave and alarming threat perception to their
life and liberty as the petitioner is in possession of concrete proof in the
nature of audio recording, wherein, police officials have admitted to have
foisted a false case upon the petitioner and her husband in FIR No.170
dated 28.09.2012, registered under Sections 21, 61, 85 of Narcotic Drugs
and Psychotropic Substance Act, 1985 and 3, 4, 5 of Official Secrets Act,
at Police Station Bhikhiwind as also beseeching this Hon'ble Court to
take on record the said Audio CDs.
It is also prayed that this Hon'ble Court may be pleased to issue
appropriate directions restraining the respondents from harassing,
humiliating and subjecting the petitioner to persecution by implicating
her in any false case as the delinquent police officials who have admitted
to have indulged in abuse and misuse of their uniform are openly
proclaiming to teach a lesson to the petitioner for tape recording their
admissions/confessions supra.
In the peculiar facts and circumstances, the petitioner is
beseeching this Hon'ble Court to restrain the respondents from arresting
and calling her to the Police Station either as a witness, suspect or
accused in any other case as she has a bonafide apprehension to her life,
liberty and dignity.
It is still further prayed that this Hon'ble Court may be
pleased to issue appropriate direction to entrust the investigations into
the entire origin and genesis as well as all aspects relating to FIR No.170
supra to an independent agency so as to ensure transparent and fair
investigation to bring out the truth and enable this Hon'ble Court to take
strict action against delinquent officials who have indulged in wanton
abuse of their power and authority.
Any other order or direction, which this Hon'ble Court may deem
fit and proper in the facts and circumstances of the case, may kindly be
passed in favour of the petitioner."
During the course of hearing of this petition, a separate
application, i.e. CRM No.39785 of 2016 has been filed by the
petitioner. On the instance of learned Senior counsel for the petitioner
having heard him, this Court having been convinced, allowed the said
application. The prayer in the said application is as under:-
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"It is, therefore, respectfully prayed that the instant application may
kindly be allowed and this Hon'ble Court may be pleased to set aside and
quash the supplementary report under Section 173(8) Cr. P.C. (Annexure
P-8) filed by the Central Bureau of Investigation against the petitioner in
the Court of learned Special Judicial Magistrate, CBI, Punjab, Patiala as
well as the order dated 03.09.2015 passed by the learned trial Court
(Annexure P-9), whereby, the congnizance has been taken, inter alia,
against the petitioner in the interest of justice, equity and fair play.
It is further prayed that all further proceedings before the learned
trial Court may kindly be stayed.
It is further prayed that the petitioner may kindly be exempted
from filing of certified/original copies of Annexures P-8 to P-10 and
filing of true typed copy of Annexures P-8 to P-9 may kindly be exempted
and permission may kindly be granted to place on record the photocopies
of the same in the interest of justice and fair play."
It is thus, clear that in the main petition, i.e. CRM-M-
20003 of 2013, present petitioner-Sukhpreet Kaur sought investigation
etc. as stated in the various prayers quoted above and thereafter, has
sought quashment of supplementary report under Section 173(8) of
Code of Criminal Procedure, 1973 (for short 'Cr. P.C.') (Annexure P-
8) as well as order dated 03.09.2015 (Annexure P-9) passed by the
learned trial Court. The learned trial Court vide said order dated
03.09.2015 issued accused summons to petitioner-Sukhpreet Kaur and
her husband, returnable on 18.09.2015. for offences under Section
120-B of Indian Penal Code, 1860 (for short 'IPC') and Section 5 of
Official Secrets Act, 1923 (for short 'Act'), which is also under
challenge by way of amendment as aforesaid.
During the pendency of above petition, Surajpal Singh son
of Pargat Singh, husband of the petitioner-Sukhpreet Kaur, expired.
In support of the petition/amended petition, learned Senior
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counsel for the petitioner, namely Mr. Virkam Chaudhari vehemently
argued that this Court had made an order on 03.09.2013 asking CBI to
take up the investigation and conclude it, with a direction to submit
investigation report before this Court. He submits that in breach of the
said direction to submit investigation report before this Court, the
investigating agency, appointed by this Court, filed their
supplementary report under Section 173 (8) of Cr. P.C. before the
competent Court without even bothering to take permission from this
Court after submitting report to this Court. This, in his submission,
amounts to interference in the administration of justice and CBI has
thus, committed contempt of this Court. He, then submitted that in the
supplementary report submitted by the CBI before the trial Court, of
which cognizance has been taken vide aforesaid order dated
03.09.2015 (Annexure P-9), the investigating agency has exonerated
respondent No.7-Inspector Sukhdev Singh, Station House Officer,
from all the allegations leveled against him despite the fact that
sufficient and ample material was available before the investigating
agency, who, according to him, in order to save respondent No.7, has
undertaken exercise to exonerate him from the crime committed by
respondent No.7, who had tormented the petitioner woman. Learned
Senior counsel made several submissions on facts to point out how the
investigating agency ignored the evidence that was produced by the
petitioner in respect of respondent No.7's culpability. With his
assistance, I have gone through the entire material which he has
pointed out to me from record. Then he made a submission that fresh
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investigation should again be ordered by this Court qua respondent
No.7 and the criminal action against respondent No.7 be taken as he is
required to be brought to book, he having committed serious and
immoral activities qua the petitioner.
Taking the first issue propounded by the learned Senior
counsel for the petitioner as to the culpability of respondent No.7 not
having been found by the investigating agency, I have given my
careful thought to the entire matter. Learned Senior counsel has mainly
relied on conversation between Harpreet Kaur and Sukhpreet Kaur-
petitioner so also respondent No.7, which has been duly considered by
the investigating agency. In that context, the investigating agency has
given following findings, which are in the investigation report:-
"16.10 Investigation revealed that Sukhpreet Kaur recorded her
conversation with Sukhdev Singh, the then SHO and the L/C Kuldeep
Kaur and Harpreet Kaur in a clandestine manner after registration of
aforesaid case. She produced said recordings in two CDs which were
taken into police possession and were sent to CFSL, New Delhi who
identified voice in the recordings as that of Sukhpreet Kaur, Sukhdev
Singh, the then SHO and the L/C Kuldeep Kaur and Harpreet Kaur. The
aforesaid persons were also examined in respect of their conversation
with Sukhpreet Kaur, however, allegation of amorous/immoral favour
demanded by the then SHO Shri Sukhdev Singh from Sukhpreet Kaur are
not substantiated.
16.11 It was alleged by Smt. Sukhpreet Kaur, the petitioner that Shri
Sukhdev Singh, SHO took 3 cheques which were encashed by her mother
Smt. Charanjit Kaur and the amount Rs.2,49,000/- was handed over to
SHO Sukhdev Singh. Investigation revealed that Smt. Sukhpreet Kaur had
saving account No.31741087490 in State Bank of India, Rani-ka-Bagh,
Amritsar Cantt. She had issued cheque No.938426 dated 27.09.2012 for
Rs.49,000/-, Cheque No.938427 dated 27.09.2012 for Rs.1 lac and
Cheque No.938429 dated 24.09.2012 for Rs.1 lac. The payment of
Cheque No.938426 dated 27.09.2012 was taken by Smt. Charanjit Kaur
from the bank on 01.10.2012 and the payment of Cheque No.938429
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dated 24.09.2012 was taken by one Shri Kuldip Singh on 01.10.2012. It
has further revealed, as per statement of Charanjit Kaur, that Shri Kuldip
Singh had handed over the payment to Smt. Charanjit Kaur who in turn
gave to SHO Sukhdev Singh. Shri Kuldeep Singh had signed on the
reverse of the cheque No.938429. Efforts were made to trace out Kuldip
Singh, however, he could not be traced. Allegations of bribe are not
substantiated against the SHO Shri Sukhdev Singh."
The findings recorded above by the investigating officer,
after making investigation, cannot be said to be contrary to record or to
the evidence available before him. It is not possible for this Court to go
on repeating the investigation as sought when this Court is satisfied
from the aforesaid investigation report in Paras 16.10 and 16.11 that
CBI has taken sufficient care to make investigation as to the
culpability of respondent No.7 as alleged by the petitioner. There is no
reason for this Court, again and again to order re-investigation or fresh
investigation as this Court does not want to multiply the investigation
after investigation. The prayer made by learned Senior counsel,
therefore, will have to be rejected in that context, namely, qua
respondent No.7-Sukhdev Singh, which I do.
Learned Senior counsel for the petitioner, then contended
that this Court should proceed to take action against investigating
agency for filing supplementary report before the trial Court without
permission from this Court or without rather placing the report as per
order of this Court before it, first.
The order made by this Court appointing CBI as
investigating agency, on 03.09.2013, reads thus:-
"The present petition has been filed under Section 482 Cr.P.C for
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issuance of directions to protect the petitioner as well as her two minor
children on the ground that there is an alarming threat perception to
their lives and liberty at the instance of police party.
An FIR No. 170 dated 28.09.2012 was registered against the
petitioner, her husband and her brother under Sections 21, 61 and 85 of
the Narcotic and Psychotropic Substances Act, 1985 and Sections 3, 4
and 5 of the Official Secret Act at Police Station Bhikhiwind. However,
investigation of the case was conducted. During the course of
investigation, mobile phones of the petitioner as well as her husband and
other documents like passport and photocopies of some documents were
taken into possession by the Investigating Agency. As per case of the
prosecution, the husband of the petitioner suffered a disclosure statement
under Section 27 of the Evidence Act and got recovered few maps as well
as 10 gms of heroine which was received by him from one Rana, who is
smuggler of Pakistan. The call details of the mobile number of the
petitioner and her husband were obtained for the period w.e.f. 01.05.2012
to 30.09.2012, from which, it was found that the petitioner had made calls
and spoken to someone in Pakistan 38 times and her husband had talked
about 30 times. The case of the petitioner is that some of her family
friends are there in Pakistan and she has not disputed regarding making
calls and speaking to some persons in Pakistan during the said period.
The petitioner had also visited Pakistan on three occasions which has
also not been disputed. It is also the case of the prosecution that the
petitioner is having close anti national nexus in Pakistan and hiding her
nexus by stating that her family is on friendly terms with other family
residing in Pakistan.
Notice of motion was issued on 18.06.2013 and thereafter, reply
was filed by the State as well as respondent No.7, who is the Investigating
Officer.
During the pendency of this petition, learned counsel for the
petitioner has placed on record the Compact Disc (hereinafter referred to
as `the C.D), wherein, the conversation with the police officials has been
recorded. The allegations against the police officials are that they have
blackmailed the petitioner as well as her family members and she was
compelled to withdraw an amount of Rs.2,49,000/- through her mother
from her account and that money was received by the Investigating
Officer. Certain allegations for seeking immoral favours by the police
officials are also there.
Learned counsel for the petitioner, learned State counsel as well
as learned counsel for the complainant have been heard at length.
Learned counsel for the petitioner has prayed that if investigation
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of the case is handed over to some independent agency, the truth would
come out. Learned counsel further submitted that the petitioner and her
family members have been implicated in a false case with an ulterior
motive by the police just to grab money or for other favours from the
petitioner and ultimately, she was left with no option then to file this
petition.
Learned counsel for the State submits that the C.D has been
planted by the petitioner just to create an evidence and to save herself,
whereas, certain incriminating documents such as secret maps of the
Indian Army, Harike Bridge, Goindwal Bridge, Beas Bridge, Dera Baba
Nanak Bridge and Amritsar Cantt. have been recovered from the
petitioner and her husband. The frequent visits of the petitioner and her
continuous talk with someone residing in Pakistan, in itself, creates
doubt. Learned State counsel also submits that the allegation of
withdrawal of amount was of the period when the petitioner was in
custody on 01.10.2012 and she remained silent for a period of about eight
months and no complaint was made by her. The allegations against the
police officials have been alleged to prevent and to discourage them in
deposing against the accused. Learned State counsel further submits that
the conduct of the petitioner and her family members is such which is
anti-national and appears to be against safety and interest of the
Country.
Learned State counsel further submits that now the challan has
been presented and the petitioner is at liberty to raise all pleas before the
trial Court, whereas, learned counsel for the petitioner submits that all
these documents have been procured after presentation of challan and it
was neither the stand in the investigation nor in the challan presented
before the trial Court.
Similarly, learned counsel for respondent No.7 has vehemently
argued that the petitioner has tried to create bias in the mind of the Court
just to hoodwink the process of law. The petitioner is involved in anti-
national activities and now the case is fixed for framing of charge.
Learned counsel also submits that the petitioner is involved in supplying
secret information of the Country to one Rana Smuggler of Pakistan. The
documents recovered from the petitioner were sent to Army Headquarters
for analysis. Those documents relate to defence matters of the Country
and can be utilized by terrorists to target the infrastructure and army
installations for causing damage to them. Learned counsel also submits
that the allegations raised subsequently were not brought to the notice of
the higher authorities at any point of time and the same has been made
with mala fide intention to pressurize the witnesses not to depose against
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her.
It is also well known that when allegations are against police
officials of the State who are alleged to be involved in the crime and in
fact they are investigating the case, it would be proper and interest of
justice would be better served if the investigation is directed to be carried
out by the CBI Authorities, as in such situations CBI authorities would be
an appropriate authority to investigate the case. In Ramesh Kumari vs.
State (NCT Delhi) & Ors. 2006 (2) SCC 677], Hon'ble the Apex Court at
Paragraph 8 observed :
"....................We are also of the view that since there is allegation
against the police personnel, the interest of justice would be better
served if the case is registered and investigated by an independent
agency like CBI."
In Kashmeri Devi vs. Delhi Administration & Anr., 1988(2) RCR
(Crl.) 44, Hon'ble the Supreme Court held that in a case where the police
had not acted fairly and in fact acted in partisan manner to shield real
culprits, it would be proper and interest of justice will be served if such
investigation is handed over to the CBI authorities or an independent
agency for proper investigation of the case. In this case, taking into
consideration the grave allegations made against the high police officials
of the State in respect of which some of them have already been in
custody, we feel it proper and appropriate and in the interest of justice
even at this stage, that is, when the charge sheet has already been
submitted, the investigation shall be transferred to the CBI Authorities for
proper and thorough investigation of the case. In Kashmeri Devi (supra),
Hon'ble the Supreme Court also observed as follows : -
"Since according to the respondent charge-sheet has already been
submitted to the Magistrate we direct the trial court before whom
the charge sheet has been submitted to exercise his powers under
Section 173(8) Cr. P.C. to direct the Central Bureau of
Investigation for proper and thorough investigation of the case.
On issue of such direction the Central Bureau of Investigation will
investigate the case in an independent and objective manner and it
will further submit additional charge sheet, if any, in accordance
with law."
In Gudalure M.J.Cherian & Ors. v. Union of India 1992(1) SCC
397, the charge sheet was submitted but inspite of that, in view of the
peculiar facts of that case, the investigation was transferred from the file
of the Sessions Judge, Moradabad to Sessions Judge, Delhi. Inspite of
such fact that the charge sheet was filed in that case, Hon'ble the Apex
Court directed the CBI to hold further investigation inspite of the offences
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committed. In this case at Page 400 Hon'ble the Apex Court observed :
"...............The investigation having been completed by the police
and the charge sheet submitted to the court, it is not for this court
ordinarily to reopen the investigation specially by entrusting the
same to a specialized agency like CBI. We are also conscious that
of late the demand for CBI investigation even in police cases is on
the increase. Nevertheless - in a given situation, to do justice
between the parties and to instill confidence in the public mind - it
may become necessary to ask the CBI to investigate a crime. It
only shows the efficiency and the independence of the agency."
Keeping in view the nature of allegations against the petitioner
and her family members and also the allegations levelled against the
Investigating Officer and other police officials and also the prayer of the
present petitioner and having no objection from the other side, the
investigation of the case is handed over to Central Bureau of
Investigation to investigate whether the documents recovered from the
petitioner and her family members are relating to defence or security of
the Country. The C.D conversation, wherein, talks with the investigating
officer is there is relating to demand of money or with having some other
ulterior motive. All documents relied upon by the petitioner as well as
State and the Investigating Officer be considered while concluding
investigation.
Registry is directed to supply the complete paper book including
petition, reply and other documents filed subsequently to counsel for
C.B.I-Mr. Sumeet Goel within a period of ten days.
The Investigating Agency is directed to conclude the investigation
of the case within a period of six months from the date of receipt of
certified copy of this Order. However, in case, still any document is
required from the petitioner or her family member, the Investigating
Officer is at liberty to call for the same.
We expect that the police authorities shall co-operate with the CBI
authorities in conducting the investigation properly and in an
appropriate manner.
Adjourned to 10.03.2014.
The report after conducting investigation be placed before this
Court on the next date of hearing."
True it is that report of investigation was directly filed
before the trial Court. But then it is not necessary that the High Court
should go on initiating contempt proceedings for the reasons stated by
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learned Senior counsel for the petitioner. I do not, therefore, think it
necessary to take any action against CBI for not placing supplementary
report before this Court first before filing the same before the
competent Court. Hence, the said prayer is also rejected.
The next contention of the learned Senior counsel is that
Surajpal Singh, husband of the petitioner having expired, the offences
alleged against him by the prosecution do not survive. The submission
is accepted. He, then contended that the supplementary report
(Annexure P-8) as well as order (Annexure P-9) taking cognizance and
issuing summons to the present petitioner is also required to be
quashed as allegations against the petitioner are about the offences
under Section of 120-B IPC and Section 5 of the Act as there is no
evidence at all.
Learned Senior counsel for the petitioner has taken me
through the supplementary report. I have also gone through the
original report that was submitted by the Punjab police as well as
supplementary report submitted by CBI. He, contended there is
absolutely no evidence against present petitioner-Sukhpreet Kaur for
the offences for which the trial Court has taken cognizance against her.
Learned Senior counsel has taken me through the entire record
including the investigation papers transcripts of all the conversation
etc. He contended that there is neither any evidence about criminal
conspiracy contemplated by Section 120-B of IPC nor there is any
even remote evidence about Section 5 of the Act atleast qua petitioner-
Sukhpreet Kaur. He submitted that in the absence of even a single
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piece of evidence against the petitioner, of which cognizance has been
taken by the trial Court vide order dated 03.09.2015 (Annnexure P-9),
the proceedings before the trial Court, on the basis of supplementary
report, are without any basis or material and it would amount to abuse
of process of law to continue the proceedings. The submission has
been opposed.
In the wake of the fact that this Court wanted to have
supplementary investigation report before this Court first rather than
CBI filing the same before the competent Court, this Court is entitled
to go through the entire supplementary report and find out whether the
supplementary report discloses any offence against the petitioner and
whether order dated 03.09.2015 (Annexure P-9) taking cognizance is
legal or illegal. The reason is that the CBI violated the direction made
by this Court to submit the investigation report to it first. But the
agony filed the same directly with the trial Court who also erred in
taking the cognizance.
Per contra, learned counsel for the CBI has vehemently
opposed the petition and argued that since the trial Court has already
taken cognizance vide order dated 03.09.2015 (Annexure P-9), there is
no reason why this Court should interfere, at this stage. According to
him, the trial Court should be allowed to go ahead with the trial. He
submitted that if petitioner is really not guilty for any of the offences
charged against her, she will be acquitted by the trial Court, but it
would not be legal and proper to review supplementary report filed by
the CBI. He, therefore, prayed for dismissal of the petition.
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I have considered the submissions made by learned
counsel for the rival parties carefully. With the assistance of the
learned counsel for the rival parties on number of hearings, I have
gone through the entire record including the conversations and the
evidence collected by Punjab police, which was filed the first report so
also with supplementary report filed by the CBI. At the outset, I am
not inclined to accept the submissions made by the learned counsel for
CBI that this Court should not interdict with the supplementary report
or the original report and the order taking cognizance. The reason is
that under order dated 03.09.2013, this Court had not permitted the
CBI to file supplementary report directly before the trial Court. The
obvious object behind the passing of said order was that this Court
wanted to go through the entire papers of the investigation by the
investigation agency appointed by it. To accept the submission made
by learned counsel for the CBI that this Court should not interfere with
the trial Court's order would be putting premium on the action of the
CBI in violating this Court's order dated 03.09.2013. It is for this
reason, this Court is entitled to go through the entire supplementary
report filed by the CBI and the evidence collected by it and then to
find out whether cognizance should have been taken by the trial Court
as per Annexure P-9 or not. It is in that context, I have carefully gone
through the papers and investigation and the conversation recorded by
the police incorporated by the CBI in its supplementary report.
Apropos the prosecution allegations in the supplementary
report, particularly, against the petitioner, it would be appropriate to
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quote some of the paragraphs from supplementary report itself, which I
quote hereunder:-
"16.6 Investigation has revealed that Smt. Sukhpreet Kaur wife
of Suraj Pal Singh r/o village Sandhra, Tehsil Patti, District Tarn Taran
was working as an Assistant in the office of Asst. Commissioner, Punjab
Excise & Taxation Department, at Amritsar during the relevant period of
2011-12. Her husband Suraj Pal Singh is an agriculturist in Village
Sandra in police district Tarn Taran. Similaly, Sh. Harbhagwant Singh @
Harje s/o Sh. Kripal Singh r/o Village Wantara Singh, PS Patti, Police
District Tarn Taran, is an agriculturist owning about 10-12 Killa of land
at Village Wantara Singh situated at the border with Pakistan. Sh.
Harbhagwant Singh @ Harje is real brother of accused Smt. Sukhpreet
Kaur.
16.7 Investigation has further reveals that a police team headed
by SHO Sukhdev Singh, PS Bhikhiwind, District Tarn Taran departed
from the said police Station o 28.09.2012 at 4:00 AM in official vehicle
for conducting raids at the residences of the accused persons at Village
Wantara Singh and Sandra. Since the house of accused Harbhagwant
Singh @ Harje was found locked in village Wantara Singh, therefore, the
raiding party visited village Sandra in order to conduct raid at the house
of Surajpal Singh and Smt. Sukhpreet Kaur and recovered certain
documents after the disclosure made by them. The said documents were
sent to Army Hqrs. Delhi. The Army expert opined that the documents
forwarded are related to Army installation and certain important bridges
and head works in Punjab and can be classified as of restricted nature.
The information contained in these documents does not have
strategic/operational value but if disclosed to unauthorised persons can
be prejudicial to safety, security and interest of the State. The information
has limited utility for any present or potential enemy, but can be utilized
by terrorists/saboteurs to target vulnerable infrastructure and any
installation. The information is both directly and indirectly connected
with the defence matters of country.
16.8 Investigation further revealed that the accused Surajpal Singh and
Sukhpreet Kaur had came in contact with Rana Mohd in Pakistan in
April, 2012 at Wagha border during a religious trip. Thereafter, they
were in contact with each other over mobile phones. The state police after
getting permission of the concerned authority had recorded their
conversation during the period August, 2012 to September, 2012 which
also revealed their connection with said Rana of Pakistan. Conversation
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also revealed that they were involved in sending information/documents
related to defence and important places of India to Rana of Pakistan.
......................
16.13 In view of above facts and circumstances this
supplementary charge sheet is being filed against Shri Surajpal Singh s/o
Shri Pargat Singh and Smt. Sukhpreet Kaur w/o Shri Surajpal Singh r/o
village Sandra, Tehsil Patti, District Tarn Taran for the offences
committed by them u/s 120-B IPC r/w section 5 Official Secret Act."
Alongwith supplementary report, the CBI vide reply dated
12.11.2015 has filed report and in relation to the offence under Section
5 of the Act, following portion from the report would be relevant,
which I quote hereunder:-
"5. During the course of investigation, documents alleged to have
been recovered from the house of Surajpal Singh on his disclosures were
taken on record. These documents are on CD, one page with four google
addresses, one page having diagram of Appendix 'M' and Appendix 'N',
one page depicting Army badges, one page depicting organisation armed
Div SIG Regt (AREN), 6 pages of precis (Restricted), 36 photographs and
one book (Restricted). The witnesses of recovery viz SI Baldev Singh and
ASI Charanjit Singh of PS Bhikhiwind have stated that the said
documents were recovered in their presence from a box in the residence
of Surajpal Singh at Sandra on his disclosure. However, no witness from
the public/locality of recovery was taken by the police of PS Bhikhiwind.
Scrutiny of the said documents revealed that 2 documents/ books are
Restricted in nature and pertains to Army/defence. Out of 36
photographs, 16 photographs are original, 18 are photocopy and 2 are
photocopy of maps and pertains to some electricity project, dams and
bridges of Harike, Beas Hargobindpur etc. Expert opinion on said
documents was taken by the State Police earlier as well as by the CBI
during investigation of the case from the Army HQ. The expert has opined
that the documents are related to Army installations and certain
important bridges and head work in Punjab and can be classified as
"Restricted". The expert has further opined that the information
contained in these documents does not have strategic/operational value
but if disclosed to unauthorised persons can be prejudicial to safety,
security and interest of the state. The expert has also opined that
information has no utility for any present or potential enemy, but can be
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utilized by terrorists/saboteurs to target vulnerable infrastructure and
army installation for causing damage to these. The expert further opined
that the information is both directly and indirectly connected with the
defence matters of the country."
Alongwith the aforesaid report filed by the CBI, there are
conversations placed on record, which are briefly stated as under:-
On 16.08.2012 time 12:47 AM - conversation between
Rana and Suraj regarding revolver.
This conversation relates to the husband of the
petitioner and since the husband of the petitioner has
expired, there is no incriminating conversation qua the
petitioner, it is not necessary to quote any portion
therefrom.
On 24.08.2012 time 9:34 PM AND 27.08.2012 at 12:17
AM - Rana (Pakistan) talking to Suraj regarding above
discussion. Voice of Rana is not clear/audible.
Conversation between Sukhpreet Kaur and Suraj
having going to Lahoul Spiti.
I do not find a single incriminating stand against the
petitioner qua any of the offence under Section 120-B IPC
and Section 5 of the Act.
On 28.08.2012 time 8:34 AM - Conversation of Rana
with Suraj about opening of pillar No.149 & 147 and
delivery of 100 grams of powder.
I do not find a single incriminating stand against the
petitioner qua any of the offence under Section 120-B IPC
and Section 5 of the Act.
On 29.08.2012 time 11:56 PM - Conversation of
Seema @ Sukhpreet Kaur with the travel agent about
Air ticket of Lahaul Spiti.
Having gone through the conversation, there is no
remote connection with the offences in question.
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On 06.09.2012 time 5:45 PM - Rana talking to Suraj
about Indian SIM and its recharge and to keep the
secret things.
The conversation is not between the petitioner and
Rana (Pakistan), but it is between Suraj and Rana.
Beyond this, there are no other conversations collected by
the CBI during investigation against Surajpal Singh and petitioner-
Sukhpreet Kaur. This is all and all about the alleged material against
the petitioner and her husband. From the above, at the most, it could be
said that there is some material against petitioner's husband Surajpal
Singh. But in so far as the petitioner is concerned, there is absolutely
no material against her. In so far as the recovery of the documents or
sensitive documents are concerned as referred in Para 5 above of
supplementary report, the same were recovered from Surajpal Singh
and there is not even a iota of allegation or evidence that petitioner-
Sukhpreet Kaur had any role. It is not the case of the CBI or police that
the petitioner had recovered the documents or that she had knowledge
thereof. But the prosecution case is that Surajpal Singh had recovered
those documents. That apart, the Army Headquarters opined that
information contained in the documents does not have
strategic/operational value but if disclosed to unauthorised persons can
be prejudicial to safety, security and interest of the state. The expert
has also opinied that information has no utility for any present or
potential enemy, but can be utilized by terrorists/saboteurs to target
vulnerable infrastructure and army installation for causing damage to
these. The expert further opined that the information is both directly
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and indirectly connected with the defence matters of the country.
Now in the entire conversations, produced by the
prosecution which I have seen, there is no discussion with Rana
(Pakistan) nor there is any whisper about any information being
conveyed about those documents to him or anybody. At the most, the
prosecution case itself is that information was conveyed to Rana by
Surajpal Singh and it is not the case of the prosecution that any
information was conveyed by petitioner-Sukhrpeet Kaur. This is all
about the evidence collected by the CBI, which has been filed in the
supplementary report.
Having gone through the report filed by the Punjab police
initially and reply by way of affidavit dated 23.07.2013 of Deputy
Superintendent of Police, Sub Division Valtoha Campt at Bhikhiwind,
District Tarn Taran, I find that whatever has been stated by the CBI in
the supplementary report seems to be repetition of what was stated in
the investigation made by the Punjab police, but for some further
investigation.
Section 5 of the Act reads thus:-
"5. Wrongful communication, etc., of information
(1) If any person having in his possession or control any secret
official code or password or any sketch, plan, model, article, note,
document or information which relates to or is used in a prohibited place
or relates to anything in such a place, 18[or which is likely to assist,
directly or indirectly, an enemy or which relates to a matter the
disclosure of which is likely to affect the sovereignty and integrity of
India, the security of the State or friendly relations with foreign States or
which has been made or obtained in contravention of this Act,] or which
has been entrusted in confidence to him by any person holding office
under Government, or which he has obtained or to which he has had
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access owing to his position as a person who holds or has held office
under Government, or as person who holds or has held a contract made
on behalf of Government, or as a person who is or has been employed
under a person who holds or has held such an office or contract-
(a) willfully communicates the code or password, sketch, plan,
model, article, note, document or information to any person other
than a person to whom he is authorized to communicate it or a
Court of Justice or a person to whom it is, in the interests of the
State, his duty to communicate it; or
(b) uses, the information in his possession for the benefit of
any foreign power or in any other manner prejudicial to the safety
of the State; or
(c) retains the sketch, plan, model, article, note or document
in his possession or control when he has no right to retain it, or
when it is contrary to his duty to retain it, or willfully fails to
comply with all directions issued by lawful authority with regard
to the return or disposal thereof ; or
(d) fails to take reasonable care of, or so conducts himself as
to endanger the safety of, the sketch, plan, model, article, note,
document, secret official code or password or information;
he shall be guilty of an offence under this section.
(2) If any person voluntarily receives any secret official code or
password or any sketch, plan. model, article, note, document or
information knowing or having reasonable ground to believe, at the time
when he receives it, that the code, password, sketch, plan, model, article,
note, document or information is communicated in contravention of this
Act, he shall be guilty of an offence under this section.
(3) If any person having in his possession or control any sketch, plan,
model, article, note, document or information, which relates to munitions
of war communicates it, directly or indirectly, to any foreign power or in
any other manner prejudicial to the safety or interests of the State, he
shall be guilty of an offence under this section.
19[(4) A person guilty of an offence under this section shall be
punishable with imprisonment for a term which may extend to three
years, or with fine, or with both.]"
In accordance with the discussion made by me above and
looking to the scheme of Section 5 of the Act, I find there is absolutely
no material even remotely connecting the petitioner with the alleged
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crime. In so far as the offence under Section 120-B IPC is concerned,
again, there is not even a single allegation about conspiracy made by
the petitioner to commit offence under Section 5 of the Act. I,
therefore, hold that there is no material whatsoever in the original
charge-sheet or the supplementary report by the CBI against petitioner-
Sukhpreet Kaur to take cognizance for the offences under Section 120-
B IPC and Section 5 of the Act.
Now coming to order dated 03.09.2015 (Annexure P-9)
taking cognizance. I find that the trial Court has recorded the following
reasons for taking cognizance as under:-
"4. The investigation has further revealed that accused Surajpal
Singh and Sukhrpreet Kaur came in contact with one Rana Mohammad of
Pakistan in April 2012 at Wagha Border during a religious trip and
thereafter, they remained in contact with each other telephonically. The
State police after getting permission of the concerned authority recorded
their conversation during the period August 2012 to September 2012
which also revealed their connection with said Rana of Pakistan. The
conversation also revealed that they were involved in sending
information/documents relating to defence and important places of India
to Rana of Pakistan. The investigation has further revealed that accused
Harbhagwant Singh @ Harji was arrested by the State police on
04.12.2012. However, no evidence emerged against him regarding his
connection with Rana of Pakistan. No incriminating documents/
Narcotics were recovered from him by the State Police. ....................
8. ............. It has also been found during investigation that Surajpal
Singh and Sukhpreet were in contact with one Rana Mohammad of
Pakistan telephonically and when their conversation was recorded by the
State Police, it was revealed that they were involved in sending
information/documents related to defence and important places of India
to Rana of Pakistan. So, the contention of learned Assistant Public
Prosecutor for the CBI to the effect that there are sufficient grounds for
taking cognizance of offence under Section 120-B of Indian Penal Code
and Section 5 of Official Secrets Act against accused Sukhpreet Kaur and
Surajpal Singh is well founded and is liable to be sustained in view of the
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fact that investigation clearly shows that some secret documents, which
could be prejudicial to the safety and interest of the State if disclosed to
some unauthorised persons, were recovered from the possession of
accused Surajpal Singh and they were having contacts with one Rana of
Pakistan and were supplying information to him telephonically relating
to the defence and important places of India.
9. Accordingly, cognizance of offences under Section 120-B of the
Indian Penal Code and Section 5 of the Official Secrets Act of the Indian
Penal Code is hereby taken against accused Sukhpreet Kaur and Surajpal
Singh. ....."
In order to find out the correctness of above vague reasons
given by the trial Court in impugned order dated 03.09.2015
(Annexure P-9), I have gone through the entire record and I find that
the trial Court has merely made general observations without
indicating any specific incriminating material against the petitioner,
though, there appears to be some material against Surajpal Singh in the
form of conversation, but then since after his death nothing further can
be done. To my mind, the above reasons given by the trial Court taking
cognizance of the petitioner cannot stand the test of scrutiny by this
Court. In the result, I find that the supplementary report (Annexure P-
8) filed by the CBI and impugned order dated 03.09.2015 (Annexure
P-9) passed by the learned trial Court taking cognizance deserve to be
quashed and set aside. As stated earlier, the other prayers made by the
petitioner will have to be rejected for the reasons given by me above.
In the result, I make the following order:-
ORDER
(i) CRM-M-20003 of 2013 is partly allowed;
(ii) Prayer to direct reinvestigation qua respondent No.7 and for taking action against CBI for contempt of Court is 21 of 22 ::: Downloaded on - 01-09-2017 19:56:14 ::: CRM-M-20003 of 2013 (O&M) 22 rejected.
(iii) Rule is made absolute in terms of amended prayer in CRM No.39785 of 2016, which is reproduced below:-
"It is, therefore, respectfully prayed that the instant application may kindly be allowed and this Hon'ble Court may be pleased to set aside and quash the supplementary report under Section 173(8) Cr. P.C. (Annexure P-8) filed by the Central Bureau of Investigation against the petitioner in the Court of learned Special Judicial Magistrate, CBI, Punjab, Patiala as well as the order dated 03.09.2015 passed by the learned trial Court (Annexure P-9), whereby, the congnizance has been taken, inter alia, against the petitioner in the interest of justice, equity and fair play.
It is further prayed that all further proceedings before the learned trial Court may kindly be stayed.
It is further prayed that the petitioner may kindly be exempted from filing of certified/original copies of Annexures P-8 to P-10 and filing of true typed copy of Annexures P-8 to P-10 may kindly be exempted and permission may kindly be granted to place on record the photocopies of the same in the interest of justice and fair play."
(iv) Supplementary report (Annexure P-8) as well as order dated 03.09.2015 (Annexure P-9) are quashed;
(v) No order as to costs.
(A.B. CHAUDHARI)
JUDGE
August 24, 2017
mahavir
Whether speaking/ reasoned: Yes/No Whether Reportable: Yes/No 22 of 22 ::: Downloaded on - 01-09-2017 19:56:14 :::