Delhi District Court
Syed Mohd. Ahmed Kazmi vs . on 25 May, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0213262012
CR NO: 73/12
FIR NO: 4/12
PS CENTRAL / SPL. CELL
U/s 307/323/427/120B IPC
& U/s 16/18 UAPA
& U/s 3 of Explosive Sub. Act
Syed Mohd. Ahmed Kazmi
vs.
State
IN THE MATTER OF
Syed Mohd. Ahmed Kazmi
S/o Late Sh. Ali Najaf Kazmi
R/o F17 & 18 B.K.Dutt
Colony, Jorbagh,
New Delhi ....Revisionist / Accused
Vs.
State ........ Respondent
Revision against the impugned order dated 01.05.2012 DATE OF INSTITUTION : 10.5.2012 DATE OF FINAL HEARING : 25.5.2012 DATE OF FINAL ORDER : 25.5.2012 ORDER ON REVISION
1. This revision has been preferred by revisionist / accused against order of Ld. Page 1 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 2 Magistrate dated 1.05.2012 whereby vide later part of the order , after initially allowing the revisionist to obtain certified copy of " complete set of Court File including all the orders", request of the revisionist to obtain certified copy of his J/c / P/c remand applications and orders was declined.
2. I have heard Ld. Counsel for accused / revisionist Syed Mohd. Ahmed Kazmi Sh. Mehmoob Pracha, Advocate and Sh. Sheikh Faraz Iqbal, Advocate and Ld. Addl. PP Sh. Rajiv Mohan . I have also carefully perused the entire revision file as well as record form the Court of Ld. CMM.
3. Brief facts necessary for disposal of this revision are that revisionist herein is a Journalist by profession . He was arrested on 6.3.2012 in connection with an incident of bomb blast which took place on 13.2.2012 in a Toyota Innova belonging to Israelis Embassy. The car was carrying an Israeli woman who was wife of an Israeli Diplomat. The explosion is said to have taken place at around 3.15 pm with the help of a magnetic explosive devise when the car was at Aurganjeb RoadSafdarjung Road Crossing. In that incident apart from the Israeli Woman namely Tal Yeho Shua , her driver and two more persons sustained injuries. After this incident an FIR No. 04/2012 U/s 307/120B IPC U/s 3 of Explosive Substances Act was registered by PS Spl. Cell . Subsequently offences U/s 323/427 IPC were added apart from Section 16/18 Unlawful Activities Prevention Act.
4. The revisionist was arrested under the allegation that he conspired and facilitated in the commission of above crime. After the arrest of the revisionist, his 20 days police Page 2 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 3 custody remand was sought on 7.3.2012 . The same was allowed by the Court of Ld. CMM. However, he was produced back and sent to Judicial Custody after 17 days only i.e. on 24.3.2012. On that day Ld. CMM sent him to J/c for 14 days. Thereafter the revisionist was remanded to J/c in batches of 14 days on 7.4.12 then on 21.4.12 then on 5.5.12 then on 19.5.2012 till 2.6.2012.
5. During this period on 23.4.2012 , the revisionist accused applied for obtaining certified copy of "complete set of court file including all the orders". This application was allowed by Ld. CMM vide his order and endorsement of the even date. This application was registered with Copying Agency, Tis Hazari Courts under application no.38189 and the requested documents, 85 in number, were supplied to Sh. Kazmi on 27.4.2012. When Ld. Counsel for revisionist/ accused checked the documents, he found that neither of the 7 J/c / P/c remand papers and orders have been supplied to him even though Ld. CMM had allowed him the "complete set of Court file."
6. This led to filing of an application dated 30.4.2012 with Office of Ld. CMM whereby a request was made that the above remnant documents may also be supplied. This time Ld. CMM issued notice of this application to the IO. Upon this IO Addl. DCP Sh. Sanjeev Kumar Yadav submitted his reply dated 1.5.2012 whereby it was reported by the IO that "accused Syed Mohd. Ahmed Kazmi is a press reporter. Hence, media and press reporter are taking keen interest to cover every point / story related to this case. It is further submitted that publication of the documents containing name and address of the witnesses can affect the testimony of witnesses and investigation of the case."
Page 3 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 4
7. After affording opportunity of being heard, Ld, Magistrate passed the impugned order dated 1.5.2012 observing therein:
4.There is another application , filed on behalf of accused, seeking certified copies of all the records pertaining to police and judicial custody remand of the accused as well as applications / reports submitted by the Investigating Agency.
It is admitted position that whatever record is available before this court in terms of applications / reports filed by Special Cell and the orders passed by this court the certified copies thereof have already been supplied to the applicant. Now, the learned counsel for the applicant has confined his prayer for supplying the copies of applications of police custody remand / judicial custody remand / orders passed thereupon which are there on the investigation file........................... and I am of the considered opinion that the said application and order can not be supplied to the accused..........
8. Aggrieved by this order , revisionist / accused preferred the revision in hand.
9. The above bundle of facts make it amply clear that the impugned order of Ld. CMM dated 1.5.2012 denying the copies rather explicitly overrules his own order dated 23.4.2012 whereby he allowed the revisionist to obtain "complete set of court file including all the orders." The only reason as to why the said 7 remand applications and orders could not be supplied to the revisionist accused is simply because that the concerned Ahlmad, Asst. Ahlmad and the Reader of the Court of Ld. CMM were not aware of the exact whereabouts of those 7 documents. Had these 7 documents been kept in the same bunch of papers as other applications and orders pertaining to this case were, revisionist would have obtained certified copy of these 7 documents on 27.4.2012 itself.
10.The fact that the 7 documents were not available with the other related documents is Page 4 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 5 evident from the proceedings of this Court dated 24.5.2012 when Ahlmad of the Court of Ld. CMM made a categorical statement in this Court that he had sent to this Court "all the papers" pertaining to this case (page 03 to 177) and no other document or remand paper is available with him . It is only after the Court Staff of Ld. CMM realised the seriousness of the situation , they seem to have conducted a sustained search and after about 2 hours , the said "Missing remand papers" were produced before this Court. As such it is clear that but for the folly on the part of Staff of the Court of Ld. CMM of not keeping all the originals papers securely at one place, revisionist would have been supplied the certified copy of the 7 remand papers under orders of Ld. CMM dated 23.4.2012. This failure on the part of the Court Staff of Ld. CMM necessitated and compelled the Revisionist to move the aforesaid application dated 30.4.2012 and it led to consequential passing of impugned order of negating the request by Ld. CMM on 1.5.2012 and this alone led to filing of the revision in hand.
11.In the impugned order Ld. CMM has terribly mistaken himself when he observed that the revisionist is seeking copy of documents which are there on the investigation file. Firstly neither any such prayer was made by the revisionist in his application dated 30.4.2012 , Secondly , the original remand applications and orders passed thereon are never part of investigation file maintained by the IO. As per The Punjab Police Rules'1934 applicable to Delhi, PPR No. 25.56 the original remand applications and orders can not be retained or taken back by the Police under any circumstances and that the original is supposed to be retained by the Magistrate's Court alone.
Page 5 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 6
12.As far as this revision is concerned, submissions on the maintainability on the same were also heard so as to assess whether impugned order dated 1.5.2012 is interlocutory order as per Section 397 (2) Cr.P.C. qua which no revision can be filed . The law on " interlocutory orders" is well settled right from S.Kappuswami Rao Case AIR 1949 FCI , Amarnath's case, AIR 1977 SC 2185, Madhu Limaye's case AIR 1978 SC 47 up to Sethuraman's case , JT 2009 (4) SC 164.
13.All these judgments lay that an interlocutory order is one which does not decide the right of a party substantially and finally and it only aimed at furthering a process or a trial. However, in the matter in hand the revisionist, who is in custody since 6.3.2012, was denied the Right to seek copies of those very applications and orders under which he is being kept in detention.
14.As far as Right of the accused to seek certified copy of the application moved before the Court under whose order the Revisionist is being detained in jail and the judicial order of his detention / remand is concerned, reliance has to be placed on Punjab, Civil and Criminal Courts Preparation and Supply of Copies of Records Rules , 1965. These Rules are applicable to all District Courts in Delhi in so far as they are part of Delhi High Court Rules and Orders Volume IV Part F Chapter 17 at Page 1155. These Rules define the word "Record" as under:
15.Rule 2 (c) "Record" means and includes any portion of a record and any document , map , plan or other paper attached to , or forming part , of the record of any suit , appeal , enquiry , trial or other proceedings in any Civil or Criminal Court.
Page 6 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 7
16.Rule 3(1) provides : Any party to a Civil or Criminal Case is entitled at any stage of the suit or complaint to obtain copies of the record of the case...... ( emphasis supplied)
17.Rule 7 lays that an application seeking copy of the record of High Court or of a District and Sessions Court deserves to be accepted only with the permission of the Court. This squarely means that as far as an application seeking certified copy of record lying with a Magisterial Court is concerned , no permission of the Court is required .
18.Rule 12 provides for scrutiny of application and as per this Rule it is only the Copy Agent working with Copying Agency who shall scrutinize the same as to whether a copy sought can be supplied to the applicant under the Rules.
19. Rule 14 provides that in case of doubt the copying agency official shall produce such application before Ld. District and Sessions Judge for removal of the doubt . Above scheme of things clearly lays that neither there was any necessity for revisionist to seek permission of the Court of Ld. CMM to obtain certified copy there of, nor , as per rules, Ld. CMM was authorised to refuse to supply the copies.
20.As far as Right of the accused to seek certified copy of his Remand Application is concerned, not only the above Rules authorise him to receive the same "at any stage "
but even Constitutionally by combined virtue of Article 14, Article 19 (1)(a) , Article 21 and Article 22 of our Constitution an accused held in custody by the State does have a right to be treated without any discrimination procedurally . He has a right to be treated and dealt with by the State in a transparent manner as ruled in case titled K. Ravi Kumar Vs. Bangalore University, AIR 2005, Karnatak 21, whereby while Page 7 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 8 explaining the meaning and interpretation of words used in Article 19 (1)(a) of our Constitution i.e. all Citizens shall have the Right to Freedom of Speech and Expression, it was ruled that " to ensure this the Governmental functions and functioning of all three of its instrumentalities namely Executive, Legislature and Judiciary shall be transparent and these instrumentalities should be prevented from deceiving the people ."
21.Article 22 of the Constitution provides for Protection against arrest and detention of Citizens. In case titled Sophia Gulam Mohd. Bham Vs. State of Maharashtra, AIR 1977 SC 3051 while referring to Article 22 of Constitution it was ruled that :
" the person arrested and detained is not only supposed to be told about the facts constituting his ground of arrest but he is also supposed to be told about the material on which those facts or conclusions are based."
22.In case titled Farooq Vs. Union of India AIR 1990 SC 1597 , Hon'ble Supreme Court emphasised that " all the documents relied by detaining a citizen shall be provided to him "
23.Similar view was expressed in Ahmed Kutty Vs. Union of India, (1990) 2 SCC 1, it was also ruled that " non supplying of such document can lead to vitiating the detention itself".
24.Although the revisionist herein is not under preventive detention but the analogy which can be drawn is that during the detention under investigation under Section 43 D of UAPA, the accused does have a right of being told of grounds of his further extension of Page 8 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 9 remand apart from supply of copies of his remand Applications and Orders. This view is in consonance with landmark judgment of Hon'ble Supreme Court in Maneka Gandhi's case where a duty was casted on the State that all its acts shall be " Just, Fair and Reasonable".
25.In my considered view the right of an accused to seek information and copy of the application seeking his detention in jail and the order passed by Judicial Authority in this regard is fundamental to his Constitutional Rights. The form and content of the Fundamental Rights of any citizen, can not have an exhaustive interpretation. Moreso when personal liberty of such a citizen, as safeguarded by Article 21 of Constitution, is breached by his arrest in a criminal case.
26.In case titled Keshavandana Bharati Vs. State of Kerala, 1973 4 SCC 225 it has been observed by Hon'ble Supreme Court that:
" Fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. It is relevant in this context to remember that in building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles."
27.In these time the whole World , including our Country, have risen to the Rights of Citizens to Information. It has universally been acknowledged that Citizens have Fundamental Right to know what Government has been doing in their name. This has been held in R Vs. Secretary of State for the Home Department , (1995) 4 All ER 400 and Tinnely & Sons Vs. United Kingdom, (1998) 27 EHRR 249. In consonance with Preamble of our Constitution & The Universal Declaration of Human Rights,1948, Page 9 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 10 our Democracy achieved a feat by enacting The Right to Information Act,2005.
28.In Indian Express News papers Bombay Ltd. Vs. Union of India, AIR 1986, SC 515, Hon'ble Supreme Court ruled that :
"Article 19 (1) (a) which spells Freedom of Speech and Expression also covers following perceptions:
It helps an individual to attain selffulfilment It assists in discovery of truth (1) It strengthens the capacity of an individual in participating in decisionmaking (2) It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
Several unenumerated rights fall within the ambit of Article 21 since personal liberty is of widest amplitude."
29.Also in S.P.Gupta Vs. Union of India , (1981) Supp SCC 87 , Hon'ble High Court reiterated that " Right to Know is implicit in Right to Free Speech and Expression."
30.In another land mark judgment State of UP Vs. Raj Narain, (1974) 4 SCC 428, Hon'ble Supreme Court observed that :
" Freedom of Speech and Expression, Fundamental Rights of Citizen under Article 19(1) (a) of Constitution, include Right of Citizens to know every public act, everything that is done in a public way, by their public functionaries.
31.Likewise in the matter in hand as well not only Fundamental Rights of the Citizens safeguarded by above landmark judgments are there to aid the Revisionist but in addition thereto his Rights as an accused under detention also come to his rescue.
Page 10 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 11 When Constitutionally a Citizen who is not facing any hardship is also entitled to know as to what the State is doing , congruently a Citizen whose Personal Liberty has been breached , is definitely entitled to know as to what the Investigating Agency and the Judiciary is doing for keeping him in detention.
32.It is duty of this Courts alone to ensure that Fundamental Rights of a Citizen in duress like Revisionist Syed Mohd. Ahmed Kazmi , are not violated in the name of technicalities .
33.It has been argued by Ld. Addl. PP that by virtue of Section 44 (3) (d) of UAP Act , the Court can order for stopping the publication of proceedings. I am not in conformity with this plea in so far as there is nothing on record, as of now, to invoke this benevolent provision which is aimed only at safeguarding the witnesses. It is conceded by Ld. Addl. PP that neither State nor the Court of Ld. CMM on its own motion ever ordered for holding any proceedings in this case " in camera". Also no witness has till date has moved any such application . It is also conceded by State that neither name nor address of any witness, directly or indirectly related with this case, find any mention in either of the 7 remand applications and orders sought by the revisionist accused. Simple reference to three vehicle numbers with a plea that the vehicle numbers can lead to name and address of the witnesses is quite a far fetched plea . Moreso, when one out of these three car numbers belong to accused , while the remaining two vehicle numbers have already been shared by the State with the Media and those numbers already stood published in several National Dailies.
Page 11 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 12
34.Further more as far as details of the Innova in which the blast is said to have taken place is concerned , they havea lready been shared with the accused by Ld. CMM as the accused has been provided the copy of its Insurance and other registration particulars.
35.Also reply to the Revisionist's application filed by the accused , IO has simply expressed apprehension qua sharing of those documents which carries name and address of witness.I see no reason as to why Ld. CMM ought to have disallowed the request of supply of those 7 remand application and orders which admittedly do not contain name and address of any witness. Moreso, when he had himself earlier allowed the same.
36.I see no strength in the plea of Ld. APP and the observation made by Ld. CMM in the impugned order that accused would be supplied these documents later on only u/s 207 Cr.P.C. after the chargesheet is filed. There is no legal prohibition on supply of documents to the accused in J/c, subject to safeguards provided by relevant statue. As discussed supra it is his Fundamental Right to be informed about the grounds and documentations qua his detention in jail . As concluded supra Delhi High Courts Rules and Orders duly empowered the accused / revisionist to seek certified copy of "any record at any stage".
37.My this view is supported by Hon'ble Madras High Court in case titled "Subin Vs. State of Tamilnadu Crl. Original Petition (MD) No. 8221 of 2010 decided on 3.8.2010 whereby it was ruled that :
Page 12 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 13 "Once the remand order is passed by a Magistrate on a Remand Application , such an application and order becomes part of the "Record" and that there is no specific embargo in Cr.P.C. disentitling such accused to get copy of such Remand Application / Order . More so, when such application does not form part of Police case diaries."
38.As such in view of the above discussion , I have no hesitation in concluding that later impugned portion of order of Ld. CMM dated 1.5.2012 is illegal and fractious . Same is accordingly set aside. Incharge copying agency is hereby directed to supply certified copies of all the 7 remand applications and orders upon being so applied by the accused/ revisionist.
39.Before parting with this order, this Court is constrained to make an observation that the Order passed by Ld. CMM granting 20 days Police Custody Remand of Revisionist Sayed Mohd. Ahmed Kazmi to Spl. Cell on 7.3.2012 is hand written so poorly that it is almost totally illegible . Not only the handwriting is poor but even the complete words have not been framed and order has been over written over the printed text of the application. If the front page of the application was short of space, then the remand order could have been conveniently passed on the reverse side of the application.
Practice of writing orders on the printed text deserves to be deprecated. It is expected of all Magisterial Courts that they shall pass orders on Remand or any such similar application moved before them in a neat, clean and legible manner. Under no circumstance such order shall be passed on the printed text. Despite sustained efforts it was not possible for this Court to decipher and read the order of Ld. CMM dated 7.3.2012. As such Ld. CMM is directed to place a typed transcript of his this hand Page 13 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012 14 written order dated 7.3.2012 along with the Remand Application under due attestation of it being a true transcription.
40.Revision file be consigned to RR. Copy of this order be sent to Ld. Trial Court for compliance.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 25.5.2012. (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 14 / 14 of Order on Revision Syed Mohd. Ahmed Kazmi Vs. State dt. 25.5.2012