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Delhi District Court

Court vs . on 10 December, 2013

     IN THE COURT OF SH. AKASH JAIN, MM­06, PATIALA HOUSE 
                   COURT, NEW DELHI DISTRICT, NEW DELHI
Vinay Kanodia
     vs. 
Sandeep Thapliyal & Ors.

CC No. 273/01/13

10.12.2013
                              ORDER ON CHARGE


1.

Briefly stated the case of complainant is that he is the director of M/s Vinay Wires and Poly Products Pvt. Ltd. at 16/40, Civil Lines, Kanpur, U.P. and factories at UPSIDC, Industrial Area ­II, Rania, Kanapaur­ Dehat, and are manufacturers of Poly Films (plan and printed), flexible laminates and are also doing trading of granule. It is stated that the accused persons were conducting search operations on 30.06.2009 on all the various business premises belonging to the complainant, residential premises of directors and staff of complainant including residential premises of the complainant. It is alleged that accused persons lifted the complainant from his residential premises on 30.06.2009 and after the completion of search operations no incriminating information was found from complainant. It is alleged that the complainant was illegally detained for more than 48 hours by the accused persons. The wife and father of complainant made several complaints/ communications to the office of Director General Central Excise Intelligence (hereinafter referred to as DGCEI), subsequent to which the complainant was released on 02.07.2009. It is alleged that the complainant was subjected to both physical and mental torture in the CC No. 273/01/13 Page 1 of 21 said detention.

2. It was stated that complainant was forced to write his statement under dictation of accused persons and was also forced to sign on certain documents and invoices during the above mentioned illegal detention. It was stated that after being released from DGCEI, Regional Office, Kanpur, the complainant had to be admitted to hospital by his family members. The complainant thereafter informed the senior officers of DGCEI regarding excesses committed on him by their officials and also wrote a letter in that respect on 19.07.2009 to Chairman, Central Board of Excise and Customs (CBEC) but to no avail. It was stated that the complainant also filed one criminal writ petition before Hon'ble High Court of Allahabad regarding his apprehension of being further harassed and detained by DGCEI officials, which was dismissed on 12.10.2009 with the observation that if any illegality is committed against the complainant, he may seek appropriate remedy. The complainant reported to have also approached National Human Rights Commission regarding his alleged ill treatment by officials of DGCEI.

3. It was stated that due to above mentioned actions initiated by the complainant, the accused persons in connivance and in criminal conspiracy with each other illegally picked up the complainant on 10.11.2009 at 10/11:00 PM from Balaji Delux Hotel, Paharganj, New Delhi and forcibly took him to the office of DGCEI, R.K. Puram, New Delhi and wrongfully confined the complainant from 12:00 midnight of 10/11.11.2009 till 01:30 PM on 11.11.2009. It is alleged that the complainant was restrained from going out from the office of DGCEI, R.K. Puram. It is CC No. 273/01/13 Page 2 of 21 further alleged that complainant was illegally lifted/ abducted by the accused persons from Balaji Delux hotel on 10.11.2009 in pursuance of criminal conspiracy of accused persons to harass and torture the complainant due to various complaints filed by him before senior officers of DGCEI, National Human Rights Commission and Chairman, Central Excise and Customs. It is further alleged that during the period of illegal custody of complainant, he was tortured alongwith one Siddharth Dixit, who was already present in the custody of officials of DGCEI. It is alleged that both of them were mercilessly beaten in order to extort confession from them. Their clothes except underwear were removed and naked photographs were taken. Questions and answers were dictated to them by the accused persons in connivance with each other. Their objection to the dictation, met with the merciless beatings with wooden logs on the vital parts of their body which could have caused the death of complainant. Thereafter, both the accused persons were shown to be arrested on 11.11.2009 at about 01:00/01:30 PM. They were taken to Safdarjung Hospital and their MLCs were prepared at 03:18 and 03:20 PM. They were thereafter, produced before the Duty Magistrate at about 07:30 PM on 11.11.2009, who directed their custody as well as further production before the concerned court on 12.11.2009 in the morning. Both complainant and Siddharth Dixit were then produced before the concerned court of Sh. Ajay Pandey (then Ld. ACMM), before whom both of them stated that they were mercilessly beaten by the officers of DGCEI after lifting them on 10.11.2009. Both the complainant and Siddharth Dixit showed their injury marks to the court concerned pursuant to which the court initialled all the necessary documents in the case file of the complainant and Siddharth Dixit and also observed that CC No. 273/01/13 Page 3 of 21 the file did not contain any summons issued to either of them. The court further directed to conduct medical examination of both complainant and Siddharth Dixit on 12.11.2009 consequent to which both of them were medically examined at RML Hospital on the same day.

4. Pre summoning evidence was led by the complainant and after hearing arguments on the point of summoning, the court concerned issued summons under section 323/348/365/368/506/34 IPC r/w section 120B IPC against all the accused persons on 01.12.2009. The above mentioned summoning order passed by the Court of then Ld. ACMM­01, New Delhi was set aside by Hon'ble Delhi High court vide order dated 01.03.2011. Thereafter, the complainant went in appeal against the order of Hon'ble Delhi High Court dated 01.03.2011 before Hon'ble Supreme Court. Vide order dated 10.01.2013, Hon'ble Supreme Court allowed the criminal appeal no.89­90/2013 moved by the complainant and set aside the impugned judgment dated 01.03.2011 vide which summoning order of the accused persons was set aside. The case was then remanded back to the concerned court.

5. Thereafter, summons were issued against all the 9 accused persons by the court concerned consequent to which the accused persons appeared and were admitted to bail. Thereafter, pre charge evidence was led by the complainant.

6. PW1 is complainant Vinay Kanodia, who deposed on the similar lines of the complaint in question. He gave a detailed account of his alleged illegal detention by the officials of DGCEI at their Kanpur office.

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He further gave a detailed account of ill treatment and beatings given to him by the accused persons as correctly identified by him in the court. PW1 deposed that the accused persons continuously harassed, tortured and beaten him during his illegal detention in the office of DGCEI at Kanpur. He further deposed that he was forced to talk to his brother by the accused persons for arranging a sum of Rs.50,00,000/­ and in the morning of 02.07.2009 he came to know that in order to get him released from the custody of accused persons, his elder brother agreed to pay a sum of Rs.30,00,000/­ which was later on paid by his brother in the account of Excise Duty/ PLA Account. PW1 thereafter, deposed regarding sending of complaint in writing by father of complainant namely Hanuman Prasad Kanodia on 01.07.2009 to the Head Office of DGCEI regarding illegal detention of complainant. He thereafter, deposed that he was medically examined after release on 02.07.2009 and that he had to be admitted in the hospital as well. He further deposed regarding reporting of the entire incident to DGCEI, Delhi by way of affidavit, copy of which is Ex. CW1/1. Copy of sending the said affidavit vide postal receipt is mark CW1/A (colly). PW1 further made a complaint regarding alleged incident to CBEC, copy of the same dated 19.07.2009 is Ex. CW1/2. PW1 also wrote a complaint in this regard to National Human Rights Commission, copy of which is Ex. CW1/4. PW1 deposed that he was regularly being sent summons by DGCEI, Delhi to appear and make a statement at DGCEI Office Headquarters, Delhi. In reply to the said summons, PW1 sent a written reply that he fears that he would again be ill treated by them in the same manner as he was treated earlier in Kanpur. PW1 thereafter, filed a writ petition before the Hon'ble Allahabad High Court praying that he fears for his life and safety at the CC No. 273/01/13 Page 5 of 21 hands of DGCEI Officers and that again he would be compelled by them to make statement on their dictated terms and sought for appropriate relief in this regard. Hon'ble Allahabad High Court dismissed the said petition with the direction that in case PW1 is detained or harassed by DGCEI Officers or if any illegality is committed it would be open for him to seek appropriate remedy.

7. PW1 deposed that thereafter his office received summons from the court of Ld. ACMM, New Delhi, Patiala House Court in the name of ex­employee namely Deepak Poddhar, to appear before the court on 12.09.2009 in relation to proceedings against him under section 172/174 IPC. PW1 came to Delhi on 09.11.2009 to engage an advocate to pursue the said matter and took one room at Hotel Balaji Delux at Paharganj, Delhi. In the night at around 10:00 PM, he came back to his hotel after having discussions with his lawyer for entire day. After few minutes of his entering the room, someone knocked at his door. As he opened his room, 4­5 persons forcefully entered his room. (The said persons were identified by PW1 as accused J.P. Singh, Sunil Joshi, Rakesh Mohan and Sandeep Jain). PW1 deposed that accused Sunil Joshi and Rakesh Mohan immediately started beating him in his room and forcibly tried to drag him out of his room. PW1 requested them to not beat him and told them that he is willing to accompany them. Thereafter, PW1 reached at the reception desk of hotel for clearing his bill and asked the person sitting at the desk to make a phone call at his house and inform them that the accused persons are abducting him forcefully. PW1 took out his business card from his pocket and wrote the telephone number of his brother on the same and tried to hand it over to the said person.

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However, before PW1 could have handed over the said card to the receptionist, accused Sunil Joshi immediately snatched the said card from the hands of PW1 and gave him 4­5 slaps. Thereafter, the said accused persons dragged the complainant out of the hotel and took him to the office of DGCEI Delhi.

8. PW1 thereafter gave a detailed account in his examination regarding ill treatment, harassment, torture and beatings allegedly given to him by each of the accused persons. The relevant excerpts from the examination of PW1 are reproduced herein below:­ "............the accused Sunil Joshi and Rakesh Mohan entered the room. The accused Sunil Joshi was carrying a wooden danda in his hand....... The accused Rakesh Mohan caught hold of me by my hands at the back so that I was not in a position to move or run away. The accused Sunil Joshi then asked me about the whereabouts of my elder brother Mr. Brijesh Kanodia. Even before I could have replied to the question, the accused Sunil Joshi forcefully hit wooden danda on my knee. I asked as to why he was hitting me but he again hit with the said danda on my other knee....... Thereafter, the accused Sunil Joshi stated that 'ye aise nahi batayega' and continuously gave me 8­10 blows of danda below my waist and at that time the accused Rakesh Mohan was holding my hands from behind so that I was not in a position to save myself......., I tried to save myself and in the process I fell down upon which the accused Rakesh Mohan pressed his shoes against my face and started rubbing his shoe on my face......."

"......Thereafter, the accused G. Saril Saroj entering the room who stated 'tu bahut letter baji kar raha tha ab kar usse kya hua aur kaha maro sale ko jitna maar sakte ho'. In the meantime, accused Khajan Singh, Virender Singh and accused J.P. Singh also entered the room. All the accused persons who were present in the room by this time all CC No. 273/01/13 Page 7 of 21 started beating me. I was laying on the floor and the accused persons were hitting me with the kicks. Thereafter, the accused G. Saril Saroj stated to the accused persons 'isko sale ko nanga karo'. Afterwards, the accused Khajan Singh, Sunil Joshi and Rakesh Mohan took off my pants and as they were not able to easily take off my shirt, they forcefully tore my shirt and took it off. They also took off my under vest (baniyaan) by tearing it off. At that time I was only in my underwear and the accused persons present at that time started clicking my photographs on their mobile phones. The accused Sunil Joshi thereafter stated, 'hum jaisa kahenge waisa likhega ke maar khayega, tere ko samjhaya tha ki retraction mat karna par tu mana nahin'. Thereafter, the accused Sandeep Thapliyal (not present today as his personal appearance has been exempted for today, the identity has not been disputed) entered the room with a file and addressing the other co­accused persons stated 'abhi tak isse likhwana nahin shuru kiya'. I heard some co­accused saying 'pehle iski sewa to karlen likhwa to baad mein lenge......"

".........During the entire episode I was continuously being given beatings by one or the other accused persons. The accused Sandeep Thapliyal thereafter stated 'ab isse likhwana to shuru karo'. I was made to sit on the chair and the accused Rakesh Mohan, Sunil Joshi and Sandeep Thapilyal surrounded from the three sides...... Thereafter, accused Sunil Joshi, Rakesh Mohan and Khajan Singh started beating me and I felt pain in all parts of my body. They gave me beatings for about 15 minutes after which I requested them to stop and stated that I was ready to make my statement...... I wrote about 4­5 pages upon the dictation of accused Sunil Joshi and Sandeep Thapliyal however, I was not aware about the contents of the same due to my condition......"

".............The accused G. Saril Saroj thereafter stated that if now I stopped writing, then I may be thrown down from the third floor of the building in the same way as they had thrown one person about two years earlier and then it can be proved that I fell down from the building while saving myself CC No. 273/01/13 Page 8 of 21 from them...... Thereafter, the accused persons brought some files total consisting of about 5000 pages or so and I was made to see and signed on most of the pages. I was also made to see and sign on the first and last page on some computer printed documents. I was not in a condition to sign on all the pages and I ultimately fell on the desk itself......."

9. PW1 further deposed that after mercilessly beating him and forcefully extorting confession from him, he was told next day i.e. 11.11.2009 that he had been arrested by the DGCEI Officials and he was asked to wear his clothes for appearing in court. Thereafter, he and Siddharth Dixit (who was also mercilessly beaten by the DGCEI Officers for extorting confession) were taken to Safdarjung Hospital for medical checkup. On reaching the hospital both complainant and Siddharth Dixit requested doctor concerned to mention all the injuries present on their bodies in the MLC. However, they were dragged by accused Sunil Joshi and Rakesh Mohan out side in the gallery who threatened them that if they make any scene in the hospital, they would be taken back to the DGCEI Office and beaten again. Thereafter, both complainant and Siddharth Dixit became silent and their MLCs were prepared. They were then produced before Ld. Duty Magistrate in the evening who granted one day judicial custody to both of them. PW1 deposed that thereafter, both of them were lodged in Tihar Jail and on the next day they were produced before the concerned court of Sh. Ajay Pandey, then Ld. ACMM, Patiala House Court. Both of them informed the court about the beatings given to them by DGCEI officials and they also showed the injuries received by them to the court. The court thereafter directed for fresh medical examination of complainant and Siddharth Dixit which was CC No. 273/01/13 Page 9 of 21 duly conducted at RML Hospital. PW1 further deposed that later on when he was lodged in Jail, his father met him there for 5 minutes when he tried to tell everything about the alleged incident and at that time only knew the names of 4­5 persons which were told by him to his father. Complainant also told him that he can recognize other accused persons if they come before him. Complainant also asked his father to collect his luggage from DGCEI office. Applications for judicial remand of Siddharth Dixit and complainant before Ld. Duty MM concerned are Ex. CW1/5 and CW1/6 respectively and the order of Ld. MM on the said applications is Ex. CW1/7. Copy of MLC no.249283 dated 11.11.2009 of complainant at Safdarjung hospital is mark I. The original MLC of complainant regarding his medical examination at RML hospital on 12.11.2009 is Ex. CW1/8. Bail application moved by the complainant on 16.11.2009 is Ex. CW1/9. Reply to the said application is Ex. CW1/10. PW1 correctly identified all the 9 accused persons present in the court. PW1 was cross­examined in detail by Ld. Counsel for all the accused persons but nothing substantial came on record which could discredit his testimony. During cross­ examination PW1 admitted at various places that the detailed account of manner of alleged beating of complainant including the conversation of accused persons as mentioned by him in his examination in chief was not so mentioned in his original complaint as well as in the statements recorded on 27.11.2009 and 01.12.2009.

10. PW2 is Hanuman Prasad Kanodia, who is the father of complainant Vinay Kanodia. He deposed on the lines of testimony of PW1 regarding illegal detention of complainant by DGCEI officers in Kanpur. He further deposed regarding subsequent complaints made by CC No. 273/01/13 Page 10 of 21 him, wife of complainant as well as complainant himself before various authorities after release of complainant on 02.07.2009. He further deposed regarding meeting his son on 12.11.2009 at Patiala House Court. He further deposed that he was informed by his son during 5 minutes meeting in the court regarding ill treatment, harassment and torture meted out to his son by the DGCEI officials. PW2 was also cross­ examined by Ld. Counsel for all the accused persons.

11. PW3 is Sudarshan Patra, who was working as Senior Manager in hotel Balaji, Paharganj, New Delhi. He deposed that when he reported on duty on 11.11.2009, he came to know from the front receptionist Mr. K.M. Pandey that some persons had lifted one of their guest who was staying in their hotel on 10.11.2009 and 11.11.2009. PW3 earlier brought one CCTV footage of the server installed in their hotel in the form of a pen drive and CD before the court regarding incident in question which were exhibited as Ex. P2 and P3 respectively. The said CCTV footage was seen by the court by playing the pen drive in CCTV footage room in presence of witness, accused persons, their counsels and counsel for complainant. PW3 further stated that the footage shown to him in the court was the same as was on hard disk of the computer in their hotel and that the same was loaded from the same computer. PW3 further brought the original guest register for the period 21.08.2009 to 27.12.2009. The entry pertaining to guest Vinay Kanodia at serial no.5574 is exhibited as Ex. P1. PW3 was also cross­examined by counsel for all the accused persons.

12. Thereafter, pre charge evidence was closed vide separate CC No. 273/01/13 Page 11 of 21 statement of the complainant. Arguments on point of charge heard in detail on behalf of both the parties. At this stage it is relevant to note that during the arguments on charge, one application was moved on behalf of DGCEI for addressing arguments on the limited aspect of sanction which was opposed by the complainant and his counsel. The said application was though duly allowed by the court vide order dated 22.11.2013. Thereafter, arguments were heard at the stage of charge on the aspect of sanction on behalf of DGCEI as well as complainant.

13. It is argued by counsel for accused persons that the testimony of complainant/ PW1 is not corroborated by any other evidence. It is argued that complainant had made number of improvements while detailing the account of alleged harassment in his examination in chief, which if discounted or excluded would not make a case fit for framing of charge. It is argued that complainant was well aware of the facts of the case at the stage of pre­summoning evidence, however, he did not mention all the alleged facts during his pre­summoning evidence and made number of improvements in the same at the time of pre­charge evidence which cannot be read at this stage. It is argued by the counsel for accused persons that whatever alleged to have happened to complainant at Kanpur cannot be looked at by this court for want of jurisdiction. With respect to the alleged torture/ harassment caused to the complainant by DGCEI officials in Delhi, it is argued that no proper evidence of criminal conspiracy is elaborated or substantiated on record. It is argued that the testimony of PW2 is merely hearsay and the evidence of CCTV footage cannot looked at by this court for want of certificate u/s 65 B Evidence Act. It is argued that the complainant was taken by accused persons and CC No. 273/01/13 Page 12 of 21 kept in their office in discharge of their official duties and all the allegations and contentions raised by the complainant are malafide and motivated. It is argued that the present complaint is only filed to pressurize accused persons to take back the case of duty evasion against complainant.

14. In addition to above mentioned arguments and in alternate it is argued on behalf of accused persons that all the accused persons being public servants cannot be prosecuted in this case for want of sanction u/s 197 Cr.P.C. r/w section 40 Central Excise Act, 1944. The present argument of accused persons is affirmed by Ld. Counsel for DGCEI who had argued in detail on the aspect of sanction in the present matter. While relying upon the cases of Shankaran Moitra vs. Sadhna Dass and Anr., AIR 2006 SC 1599, Center for Public Interest Litigation and Anr. Vs. Union of India and Anr., AIR 2005 SC 4413, Rakesh Kumar Mishra vs. State of Bihar, 2006 (1) SCC 557, S.K. Zutshi and Anr. Vs. Sh. Bimal Debnath and Anr., 2004 (8) SCC 1, General Officer Commanding vs. CBI, 2012 (6) SCC 228, Anil Kumar and Ors. vs. M.K. Aiyappa and Anr., in SLP (Crl.) 6652­6653 of 2013, it is submitted by counsel for DGCEI that the present prosecution of the accused persons is bad in law for want of sanction u/s 197 Cr.P.C. and Section 40 of Central Excise Act. It is submitted that object of aforementioned section is to guard against vexatious proceedings against public servants. It is submitted that there must be a reasonable nexus between the act and the official obligation and if the act is done rightly or wrongly, correctly or incorrectly, if done in discharge of official CC No. 273/01/13 Page 13 of 21 duty, it be covered by section 197 Cr.P.C.. It is argued that the act of accused persons of taking complainant to their office, recording his statement, arresting him and subsequently producing him before the court is an act done in discharge of official duty of accused persons for which no prosecution can be launched against them without proper sanction u/s 197 Cr.P.C. and section 40 of Central Excise Act. While laying special emphasis on the judgment of General Officer Commanding vs. CBI (Supra) it is argued that, if alleged act or omission of public servant can be shown to have reasonable connection inter­relationship or inseparably connected with discharge of his duties, he becomes entitled for protection of sanction. In the absence of such sanction any proceeding if initiated, shall be deemed to be vitiated.

15. In response to the aforementioned arguments, it is argued by the counsel for complainant that there is no alleged improvement in the statement of complainant during pre­charge evidence. It is argued that during pre­charge evidence the complainant deposed on the same lines as in his pre­summoning evidence and did not come with a new story. He merely explained the conduct of each accused person in detail during pre­charge evidence so that the punishment be given to the accused persons and not the entire department. It is argued that during pre­ summoning evidence the complainant had still not recovered from the trauma and agony received at the hands of accused persons and non­ mention of individual conduct of accused persons in detail does not amount to improvements. It is further argued that at the present stage of charge only prima facie view is to be taken by the court and specific statement of complainant coupled with his medical documents and non CC No. 273/01/13 Page 14 of 21 explanation of injury marks on body of complainant at the time of his production before Magistrate concerned is sufficient for the court to frame necessary charges against the accused persons. With respect to the issue of sanction it is submitted by counsel for complainant that the judgments cited by counsel for DGCEI have no application to the facts of the present case as the accused persons did not act in discharge of their duties while committing alleged excesses upon the complainant. It is stated that in reply to the bail application filed by the complainant earlier in the year 2009, DGCEI stated that complainant had come to the office of DGCEI on his own on 11.11.2009 in compliance of summons dated 10.11.2009. It was categorically stated that the complainant was not in the custody of department since 10.11.2009 and that he himself came to the office on 11.11.2009 and tendered his voluntarily statement. However, during cross­examination of complainant/ PW1 during pre­charge evidence no such question was put to him by the counsel for accused persons regarding visit of accused persons at hotel Balaji on 10.11.2009 in performance of their duties. It is thus argued that the act of accused persons to illegally abduct complainant from the Balaji Hotel on 10.11.2009 with malafide intention and in pursuance of criminal conspiracy cannot be deemed as an act done in discharge of official duties by the accused persons. With these submissions counsel for complainant prayed for dismissing the arguments of accused persons and DGCEI and for proceeding further with framing of charges against all the accused persons.

16. After carefully perusing the material evidence on record and submissions made on behalf of the parties, this court is of the view that CC No. 273/01/13 Page 15 of 21 there is merit in the case of complainant. The scheme of things reportedly started from Kanpur, where complainant was allegedly lifted and illegally detained by accused persons for more than 48 hrs. Complainant was reportedly mercilessly beaten by the accused persons during his illegal detention at DGCEI office, Kanpur to extort confession. Thereafter, the complainant reported the said incident to Director General, DGCEI, Delhi vide complaint Ex. CW1/1. The complainant also made a complaint to CBEC and NHRC in that regard, copy of which are Ex. CW1/2 and Ex. CW1/4 respectively. It is deposed by the complainant that due to the various complaints made by him and his family members against DGCEI officials, the accused persons in pursuance of their criminal conspiracy illegally abducted him from Balaji Delux Hotel on 10.11.2009 and thereafter harassed, tortured and severely beaten him to extort confessions.

17. With respect to contention raised by the accused persons that complainant/ PW1 had made plenty of improvements in his statement recorded in pre­charge evidence, it may be noted that on careful reading of statements of complainant recorded at both pre­summoning and pre­ charge stages no material contradiction could be pointed out. The complainant deposed on almost same lines in his pre­charge evidence as that in the pre­summoning evidence. The relevant dates and events remained the same. Complainant merely chose to explain the conduct of each and every accused in detail during the pre­charge evidence which, to my mind, does not tantamount to improvements which are fatal to the case of complainant.

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18. With respect to the contention raised by counsel for accused persons that whatever alleged to have happened to complainant at Kanpur cannot be looked at by this court for want of jurisdiction, it may be noted that by deposing about the alleged incidents at Kanpur, the complainant does not intend to invoke jurisdiction of this court to take appropriate actions against the accused. The incidents at Kanpur and consequent complaints made by complainant and his family thereto have been elaborated only to show the alleged malafides and ill designs of the accused persons.

19. It has been the case of complainant since beginning that he had been forcefully abducted from Hotel Balaji Delux in the night of 10.11.2009 by the accused persons in pursuance of their criminal conspiracy. The accused persons though have denied the said assertion of complainant and took a stand that the complainant had himself came to the office of DGCEI at R.K. Puram, Delhi on 11.11.2009 on his own to give his statement in compliance of summons dated 10.11.2009. The accused persons further denied custody of complainant since 10.11.2009. The reply to bail application of complainant given by DGCEI, Ex. CW1/10 fortifies the said stand. The accused though during pre­ charge evidence took a somersault and did not dispute their presence at Hotel Balaji Delux on 10.11.2009.

20. PW1 has categorically deposed in his statement regarding his illegal abduction and wrongful confinement to extort confession in the office of DGCEI, R.K. Puram, Delhi by the accused persons. PW1 has further deposed regarding persistent beatings given to him by the CC No. 273/01/13 Page 17 of 21 accused persons in order to force him to sign various statements and documents. PW1 has further deposed regarding injuries received by him and regarding threats given by the accused persons that if he opens his mouth before anybody, he would have to face dire consequences. PW1 has further deposed that all the above said offences had been committed by the accused persons in pursuance of their criminal conspiracy so as to teach him a lesson as he had earlier indulged in lodging various complaints against the accused persons before various forums and senior authorities on account of alleged ill treatment and harassment.

21. The testimony of PW1 is duly supported with his medical documents i.e. MLC dated 11.11.2009 Mark­I and MLC dated 12.11.2009 Ex. CW1/8. The testimony of PW1 is further supported by PW2/ father of complainant who affirmed the factum of making various complaints against the DGCEI officials by complainant and his wife in the year 2009. He further deposed that on 12.11.2009 at Patiala House Court he met complainant and saw injury marks on his body. He further deposed that during 5 minutes conversation with the complainant, he was informed by him that accused persons illegally abducted him on 10.11.2009 at about 10­11 PM from Balaji Delux Hotel to DGCEI Office, Delhi and brutally beaten him there till next day and forcibly obtained his statements and signatures on number of documents. Nothing could be culled out in cross­examination of witnesses PW1 and PW2 by Ld. Counsel for accused persons which could discredit their testimonies on material aspects of the case.

22. Further, PW3 affirmed the fact that one of his guest i.e. CC No. 273/01/13 Page 18 of 21 complainant was lifted by some persons form their hotel on the night of 10.11.2009. He further deposed that CCTV footage of front desk reception of their hotel earlier brought by him on record in the form of pen drive and CD is authentic and is Ex. P2 and P3 respectively. The CCTV footage was duly seen by the court in open at CCTV footage room in court premises. The said CCTV footage clearly reflected that element of force and coercion was used by some of the accused persons in taking complainant from the said hotel. It was argued on behalf of accused persons that evidence of CCTV footage cannot be looked at for want of certificate u/s 65 Evidence Act. However, it may be noted that a certificate u/s 65 B Evidence Act is not the only mode of proving electronic evidence as held in the case of State/ NCT of Delhi vs. Navjot Sandhu, 2005 (3) Crimes 87 (SC). PW3 being senior manager in Hotel Balaji clearly deposed that the given CCTV recording was recorded in hard disk of computer installed in their hotel which was duly seen by him on 11.11.2009. He further deposed that the said CCTV recording was loaded from the same computer. As such, Ex. P2 and P3 are admissible in evidence.

23. With respect to the injuries received by complainant as elaborated in MLC recorded on 12.11.2009, Ex. CW1/8, it is argued by Ld. Counsel for accused persons that the said injuries might have been inflicted upon the complainant in Tihar Jail when he was granted 1 day judicial custody by Ld. Duty MM in the evening of 11.11.2009. The above argument does not inspire much confidence as the injuries such as, redness, multiple bruises on shoulder, erythma blackening, shoulder tenderness etc. as detailed in MLC of complainant (mark I conducted at Safdarjung Hospital CC No. 273/01/13 Page 19 of 21 on 11.11.2009) remained unexplained by the accused persons.

24. In the final leg of arguments, the accused persons and DGCEI took a plea that accused persons being public servants cannot be prosecuted in the present matter for want of sanction u/s 197 Cr.P.C. r/w section 40 Central Excise Act, 1944. It is argued by both DGCEI and accused persons that there acts of taking complainant to their office, recording his statement, detention followed by his arrest and other investigation proceedings were carried out in discharge of their official duty, failing which they could have been possibly held for dereliction of duties.

25. The above said arguments advanced on behalf of accused persons/ DGCEI supported with catena of legal propositions would certainly hold merit provided the above said acts done by the accused persons were done in good faith and under the colour of their office. It has already been discussed earlier that in view of evidence led by complainant on record prima facie offence of criminal conspiracy is made out against the accused persons. The DGCEI officials in reply to the bail application of complainant have denied their presence in the Hotel Balaji Delux on 10.11.2009. No material is present on record which shows that the accused persons were present in the above said hotel on 10.11.2009 in discharge of their official duties. Nor any such suggestion is put to the complainant witness by the counsel for accused persons during pre­ charge evidence. In these circumstances, forceful abduction of complainant from the hotel by accused persons and consequent acts of harassment, torture, beatings in order to extort confession from him CC No. 273/01/13 Page 20 of 21 would not in any manner be protected from the law of sanction u/s 197 Cr.P.C. and section 40 Central Excise Act. Even otherwise, the aforesaid offences cannot be deemed to have committed by accused persons under colour of their office.

26. Keeping in view the totality of facts, circumstances of the case, evidence adduced and aforesaid observations there is ample evidence on record, which, if unrebutted, would warrant the conviction of the accused persons. This court has grave suspicion that the accused persons have committed offences punishable u/s 323/348/365/368/506/ 34 and 120B IPC which are triable by this court and all the accused are liable to be charged for the said offences accordingly.

27. The matter shall now be fixed for framing of charge against all the accused persons for 19.12.2013.

(Akash Jain) MM­06/PHC/ND/10.12.2013 CC No. 273/01/13 Page 21 of 21