Delhi District Court
State vs Sanjay Etc. (All Accused Persons ... on 13 September, 2011
FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 46/2006 PS: Special Cell U/s 384/506 IPC r/w Section 120B IPC Unique ID No.: 02401R0772282006 J U D G M E N T:
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(a) S. No. of the case : 169/2
(b) Name of complainant : Shri Rajeev Pahuja, Director of North Delhi Cable Network, 173, Kapil Vihar, Pitampura, Delhi.
(c) Date of commission of offence : Onwards December, 2005
(d) Name of the accused : 1) Sanjay,
S/o Shri Layak Ram,
R/o 6/2, Village Sahipur,
PS Shalimar Bagh, Delhi.
2) Parveen Krishan Chugh,
S/o Late Sh. Nand Lal Chugh,
R/o H. No. G366, Preet Vihar,
Delhi.
Permanent Address:
B17, Swathya Vihar Apartment,
SFS Flat, Preet Vihar, Delhi.
State V/s Sanjay Etc. (All accused persons "Acquitted") Page 1 of 50
FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011
3) Om Prakash,
S/o Late Shri Dwarka Dass,
R/o H. No.144, Nimri Colony,
Ashok Vihar, Delhi.
4) Partap Singh,
S/o Shri Ranbir Singh,
R/o H.No. 230, Opposite Harizan
Chopal, Neb Sarai,
PS Mehrauli, Delhi.
5) Sanjay Mathur @ Sanjay Manjari,
S/o Late Shri Rohtash Singh,
R/o Village Manjari,
P S Kanjhawala, Delhi.
(Already discharged by Ld.Addl.
Sessions JudgeII, Delhi in CR
No.80/2010, vide order dated
23.02.2011).
6) Sonu @ Pawan Kumar,
S/o Shri Ishwar Singh,
R/o H. No.81, Unique Apartment,
Sector13, Rohini, Delhi.
Permanent Address:
Village Rani Khera,
P S Kanjhawala, Delhi.
(e) Offence complained of : U/s 384/506 IPC r/w Section
120B IPC
(f) Plea of accused : All accused persons pleaded not
guilty and claimed trial.
State V/s Sanjay Etc. (All accused persons "Acquitted") Page 2 of 50
FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011
(g) Final arguments heard on : From 01.09.2011 to 09.09.2011
(h) Final Order : All the five remaining accused
persons acquitted.
(i) Date of such order : 13.09.2011
______________________________________________________________ State V/s Sanjay Etc. (All accused persons "Acquitted") Page 3 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
This case is a classic example of how and to what extent the police officers can go in framing persons, committing extortion and then make them to suffer the ignomity of criminal prosecution, by sheer misuse of power of investigation granted to them under the Code of Criminal Procedure. The police officers concerned are of Special Cell, which is supposed to be a premier investigating agency of Delhi Police specially created to deal with the cases of terrorists and antisocial elements.
2. The facts of the case as borne out from the record are that on 24.01.2006 a complaint dated 22.01.2006 was received in the office of Joint Commissioner of Police (Special Cell), New Delhi from North Delhi Cable Network Private Limited, under the signatures of complainant Shri Rajeev Pahuja, which was marked by Jt.CP (Special Cell) to DCP (Special Cell) vide Diary No.2561, dated 10.04.2006. Thereafter, on 10.04.2006 itself, DCP (Special Cell) marked the same to ACP (Special CellNR), for necessary action and the same was received in the Office of ACP (NR), Special Cell, vide Diary No.86C. Thereafter, on the same day, ACP (NR) Special Cell directed Inspector Anil Dureja of Special Cell to enquire the same. It appears that on 12.04.2006, the said Inspector Anil Dureja marked the same to SI Gajender for necessary action and report.
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3. It appears that from 12.04.2006 till 26.06.2006, SI Gajender conducted a preliminary enquiry on the aforesaid complaint. In the said complaint, the complainant had named accused Pawan and Sanjay Manjari being indulged in cutting of the cable wires in the area of Pitampura, Delhi. It was also alleged that whenever the complainant through his employees attempted to rejoin the cable wires, then the aforesaid two persons gave beatings to his employees and threatened them of dire consequences. During the course of so called enquiry, which lasted for about 2½ months, SI Gajender made enquiries from the complainant Shri Rajeev Pahuja, Shri Rajnish Kumar, Shri Rajeev Chawla, Shri Ajay Narula, Shri Sanjeev Pahwa and Shri Roshan Lal Goel etc. It was revealed to him by Shri Rajeev Pahuja that he was owner of M/s Citi Cable Network Limited, Zee Group, which had rights of running cable business in NorthWest Delhi, including the area of Pitampura, Rohini, Shalimar Bagh, Nangloi, Badli etc. He further stated that he had kept about 60 small cable operators to run his business. He further stated that some other persons were trying to enter into cable network business in the said area by unauthorised means and by the use of force. The leader of the said unauthorised aspirants was one Sanjay Manjri, who was a "Bad Character (BC)" of Khanjawala area. Alongwith him, there were Pawan, Sanjay and Rakesh, who were also of bad character. The said persons were also engaged in demanding "protection money" from the local cable operators, working under him. The other cable operators, working under the complainant Shri Rajeev Pahuja also disclosed to SI Gajender that they were State V/s Sanjay Etc. (All accused persons "Acquitted") Page 5 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 also receiving threats of illegal demands from some persons. During the aforesaid enquiry, the names of accused persons namely Sanjay Manjri, Sanjay, Ajay, Rakesh, Jagmohan and Rajat @ Gogi came to fore.
4. On the basis of the aforesaid enquiry, SI Gajender got the case FIR U/s 384/506 IPC r/w Section 120B IPC registered in PS Special Cell and investigated the same. During the course of investigation, he collected the copies of various complaints made by witnesses to PS Shalimar Bagh regarding cutting of cable wires.
5. Thereafter, on 01.07.2006, accused persons namely Parveen Chugh, Om Prakash and Pratap were arrested and their disclosure statements were recorded in the matter.
6. On 11.07.2006, accused Sanjay Manjri and Pawan were also arrested and their disclosure statements were also recorded in the matter.
7. The identity of accused persons namely Ajay and Rakesh could not be established and as such, they could not be arrested in the matter, whereas accused Rajat @ Gogi and Jagmohan were not sent for trial for want of sufficient evidence against them.
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8. After arrest, the police custody remand of accused Parveen Chugh, Om Prakash and Pratap was taken, whereas police custody remand of other accused persons was not taken by the IO.
9. During the course of investigation, SI Gajender got recorded the statements u/s 164 CrPC of witnesses namely Shri Rajnish Kumar, Shri Roshan Lal Goel, Shri Ajay Narula and Shri Sanjeev Pahwa. After completion of investigation, the chargesheet in the matter was filed.
10. After filing of the charge sheet in the case, accused persons were supplied the documents in compliance of the provision of Section 207 Cr.P.C and after hearing arguments on charge, vide order dated 08.06.2010, charges for offences punishable U/s 120 B IPC r/w Section 384/506 IPC were framed against all the six accused persons, to which they pleaded not guilty and claimed trial. Accused Sanjay Manjri filed a Criminal Revision against the order on charge against him and vide judgment dated 23.02.2011, passed in Criminal Revision No.80/2010, titled as, "Sanjay Mathur V/s State", he was discharged from the matter by the learned Addl. Sessions Judge (Central2). The police did not file any revision or Appeal against his discharge and as such the decision of Ld. ASJ aforesaid became final.
11. In support of its case, prosecution examined 20 witnesses, whereafter the statements of the accused persons were recorded U/s 313 State V/s Sanjay Etc. (All accused persons "Acquitted") Page 7 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 Cr.P.C, wherein they all claimed to have been falsely implicated in the case by IO/SI Gajender, Inspector Anil Dureja and ACP Ravi Shanker, at the instance of complainant Shri Rajeev Pahuja. At the instance of complainant Shri Rajeev Pahuja, his relative Inspector Anil Dureja got the accused persons involved in this case, who committed extortion of money from them, created false documents against them in the matter, torn off the case diaries and the statement of witnesses for the sole purpose of establishing the monopoly of complainant Shri Rajeev Pahuja in his cable business. The accused persons led defence evidence. They examined ten witnesses and also produced on record an audio CD (Compact Disc), containing conversation among PW15 HC Hari Kishan, accused Parveen Chugh and Pratap, wherein PW15 disclosed the nittigritties of the entire case, interalia categorically disclosing as to how the accused persons were framed in this case for extorting money from them at the instance of complainant Shri Rajeev Pahuja. The accused persons interalia examined Shri Rakesh and Shri Ajay as "defence witnesses", who were initially named as accused in the FIR, however, as per the chargesheet, their identity could not be established and as such, they were not arrested in the matter. However, these witnesses submitted on oath in the court that their names were falsely got added into the FIR and alleged enquiry conducted by SI Gajender and thereafter they were allowed to go scott free in the case after extorting money from them by IO/SI Gajender, Inspector Anil Dureja and ACP Ravi Shanker.
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12. The learned APP very vehemently argued that although the prosecution witnesses have not supported the case of prosecution, yet from the material on record it is clear that accused persons were part of a cable network mafia, who used to extort money from the complainant and other witnesses, but because of their dreaded nature, the witnesses did not depose against them in court. Per contra, learned defence counsels namely Shri Murari Tiwari and Shri Tripurari Tiwari, advocates for accused Parveen Chugh, Pratap and Sanjay; Shri Vipin Sanduja, learned counsel for accused Pawan and Shri Varun Deswal, learned counsel for accused Om Prakash in unison argued that the complaint, preliminary enquiry, investigation and chargesheet in the matter were stage managed by SI Gajender, Inspector Anil Dureja and ACP Ravi Shanker. The same was undertaken by the aforesaid police officers of PS Special Cell at the instance of complainant Shri Rajeev Pahuja, who is relative of Inspector Anil Dureja, to establish his monopoly in the cable business in the area in question, to thwart accused Parveen Chugh, Om Prakash and Pratap, who were also in the similar business and were gaining popularity among the residents of the locality for their quality of network and low monthly subscription rates, which had caused damage to the business of complainant Shri Rajeev Pahuja. It was further argued that complainant Shri Rajeev Pahuja was booked by Delhi Police in a case of violation of Trademark and Copyright and he thought that the same happened on account of complaint of accused persons namely Parveen Chugh, Om Prakash and Pratap. The accused persons also advanced detailed arguments State V/s Sanjay Etc. (All accused persons "Acquitted") Page 9 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 at bar, which would be discussed in the later part of this judgment.
13. Before adverting to adjudication upon the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
14. PW1, Shri Anil Kumar Sisodiya, the then learned Metropolitan Magistrate in his evidence proved that on 11.07.2006, he had recorded the statements of witnesses namely Shri Rajnish Kumar and Shri Roshan Lal U/s 164 Cr.P.C; on 07.08.2006 he had recorded the statement of witness Shri Ajay Narula and on 19.08.2000, he had recorded the statement of witness Shri Sanjeev Pahuja U/s 164 Cr.P.C.
15. PW2, Shri Rajeev Pahuja, after entering into the witness box deposed that he had made a complaint to the police with regard to he having received threatening calls from anonymous persons, who sometimes used the name Sanjay and sometimes some other name. He was declared hostile to the prosecution case. In his crossexamination by the learned APP, he categorically stated that he had made complaint Ex.PW2/A to Special Cell after receiving feedback from his operators that the operators of Shalimar Cable Network had association with some bad characters and they were threatening them. However, he hastened to add that he did not have any personal knowledge about the Shalimar Cable Network and the persons State V/s Sanjay Etc. (All accused persons "Acquitted") Page 10 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 associated therewith. He denied having any personal knowledge about accused Sanjay Manjri and Pawan. He further stated that none of the accused persons ever threatened him. He further denied the suggestion that accused persons had terrorised his operators and had asked for protection money . He further denied the suggestion that a sum of Rs.1520 lakhs was due from him to Major Suresh Yadav, who was an associate of accused persons namely Parveen Chugh, Pratap and Om Prakash and was also engaged in cable business. He further denied having made any statement to the police.
16. Most importantly, he categorically denied having remained associated with police at the time of arrest of accused Sanjay, Om Prakash, Pratap and Parveen Chugh on 01.07.2006. This witness further denied having handed over photocopy of electricity bill to IO, SI Gajender on 24.07.2006. He also denied having made a supplementary statement on 24.07.2006 to IO, SI Gajender.
17. PW3, Shri Roshan Lal in his evidence stated that he was called by the police in the office of Special Cell and IO/SI Gajender asked him to make statement in the matter. He was also declared "hostile" to the prosecution case and was thoroughly crossexamined by the learned APP. Specific questions were asked about he being threatened by accused Parveen Chugh for paying "protection money", but he categorically denied the same. State V/s Sanjay Etc. (All accused persons "Acquitted") Page 11 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 He, however, admitted having made a statement before learned MM U/s 164 Cr.P.C, but clarified that he was not in a fit state of mind at that time and the IO had pressurised him to make such statement, although he was not willing to make the same.
18. PW4, Shri Rajeev Chawla totally denied knowledge about this case. He was also throughly crossexamined by the learned APP, but he did not say a word in favour of prosecution.
19. PW5 Shri Manjeet Singh, PW6 Shri Rupesh Kumar, PW7 Shri Vipin Kumar and PW8 Shri Sanjeev Pahwa also denied having knowledge about the prosecution case.
20. PW9, Shri Rajnish Kumar has gone a step ahead in denying even his signatures on his statement U/s 164 Cr.P.C recorded by learned MM, besides denying the prosecution case in toto.
21. PW10 Shri Ajay Narula and PW11 Shri Mohan Sethi have also denied the prosecution case in toto.
22. PW12 and PW13 are formal witnesses.
23. PW14 to PW20 are witnesses of investigation, whose depositions in the matter are as under.
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24. PW14, HC Sanjeewan in his evidence stated that on 26.06.2006, SI Gajender handed over a rukka to him for registration of FIR. He got the FIR in the matter registered. In crossexamination, he categorically admitted that he was not a member of investigating team at any point of time in this case and his only role was of getting the FIR in the matter registered at the instance of SI Gajender.
25. PW15 HC Hari Kishan in his evidence stated that on 01.07.2006, he joined investigation with IO/SI Gajender and other police staff of Special Cell (NR). Accused Sanjay S/o Shri Layak Ram (hereinafter referred to as "Sanjay Sahipur") was arrested from his house. He was interrogated in the presence of complainant Shri Rajeev Pahuja. Thereafter, on the same day, SI Gajender arrested accused Parveen Chugh, Om Prakash and Pratap Singh from KP Block, Pitampura. From the possession of accused Parveen and Pratap, their licenced weapons and live cartridges were seized. He proved his signatures on the arrest and personal search memos of accused Sanjay Sahipur, Om Prakash, Parveen Chugh and Pratap Singh. He also proved his signatures on the disclosure statements of the aforesaid four accused persons. In his crossexamination by accused Om Prakash, he stated that accused Sanjay Sahipur was arrested at about 2.00 PM from his residence. Thereafter, IO/SI Gajender took about 23 hours in preparing his arrest memo, personal search memo and disclosure statement at the spot. Thereafter, he was taken to the O/o Special Cell. Thereafter, the police party State V/s Sanjay Etc. (All accused persons "Acquitted") Page 13 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 proceeded to arrest accused Parveen Chugh, Om Prakash and Pratap and took almost two hours in tracing them in Pitampura. After arrest, they were also taken to O/o Special Cell. He categorically admitted that HC Sanjeewan (PW14) was also with them at the time of arrest of the aforesaid accused persons. He was also thoroughly crossexamined by other accused persons. He disclosed the total number of the police officials of raiding party to be nine. He further stated that police party had gone to arrest accused persons in two different vehicles. He further stated that before arrest of accused Sanjay Sahipur from his residence, his office was also raided, where he was not found. He further stated that IO did not give information of arrest of accused Sanjay to his family members in his presence. It was further stated that IO was in a different vehicle. He went on to state that arrest memos of accused Sanjay Sahipur were signed by him in the office of Special Cell and not at the spot and that the complainant Shri Rajeev Pahuja met them on the way at about 12 PM when they were returning to Special Cell office. Thereafter, this witness was crossexamined with regard to he having talked to accused Parveen Chugh and Pratap on phone at or around November' 2006. He was confronted with with Audio CD, purportedly containing his conversation about this case with accused Parveen Chugh and Pratap, wherein he disclosed about nittigritties of the case and how at the instance of ACP Ravi Shanker, Inspector Anil Dureja and complainant Rajeev Pahuja, IO/SI Gajender falsely implicated the accused persons for the purpose of committing extortion of huge amount from them and to facilitate complainant Shri Rajeev Pahuja to State V/s Sanjay Etc. (All accused persons "Acquitted") Page 14 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 have monopoly of cable business in the area and he having disclosed that complainant Shri Rajeev Pahuja was close relative of Inspector Anil Dureja and father of Inspector Anil Dureja being business partner of complainant Rajiv Pahuja in the cable business. This court asked him to hear the entire conversation as also to go through the transcript thereof. This witness did not deny his voice in the CD, however, as regards the voices of accused Parveen Chugh and Pratap, he evaded answering questions on the ground that he had some hearing problem.
26. He was also confronted with torn case diaries and he having handed over the same to accused persons after taking a sum of Rs.50,000/ from them. He denied the same. He, however, admitted the torn case diaries being relating to this case. Most importantly, this witness admitted the fact that Special Cell was meant only to investigate antiterrorist cases and no case of any cable wire theft was ever investigated by Special Cell. He categorically admitted having mobile phone number 9871190077 and having talked to accused Pratap from his aforesaid number on his phone. He pleaded ignorance about his conversation with accused Parveen Chugh on 01.07.2006 at about 11.57 AM. He further pleaded ignorance about the presence of accused Parveen Chugh, Om Prakash and Pratap in the O/o Special Cell (NR) at 2.25 PM on 01.07.2006. Most astonishingly, he pleaded ignorance about spot of arrest of accused Parveen Chugh, Pratap and Om Prakash. He further did not deny the suggestion of defence that the arrest of State V/s Sanjay Etc. (All accused persons "Acquitted") Page 15 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 accused Parveen Chugh, Pratap and Om Prakash from the place shown in their arrest memos was a concocted story.
27. PW16 ASI Bhagat Bahadur Gurung in his evidence stated that on 01.07.2006, he joined the investigation with IO, SI Gajender, HC Ram Niwas and HC Sanjeevan in this case, on which date accused Pawan and Sanjay Manjri were arrested from Metro Station, Rohini West.
28. PW17 HC Ram Niwas in his evidence stated that on 01.07.2006, he alongwith IO/SI Gajender, SI Vikas, SI Rajinder, ASI Ramphal, ASI BB Gurung and HC Hari Kishan had gone to arrest accused Sanjay Sahipur. On the way, complainant Shri Rajeev Pahuja met them and he also joined proceedings of arrest of accused Sanjay Sahipur. Thereafter, he alongwith police party arrested accused Om Prakash, Parveen Chugh and Pratap from KP Block, Pitampura. After their arrest, IO prepared the documents of their arrest and personal search and also recorded their disclosure statements at the spot in his presence. He further stated that on 11.07.2006, he again joined investigation in the matter with the IO/SI Gajender, HC Sanjeevan, ASI BB Gurung and arrested accused Sanjay Manjri and Pawan.
29. In his crossexamination, he categorically admitted that the raiding party at the time of arrest of accused Sanjay Sahipur was in two vehicles, but he did not remember whether these vehicles were private or State V/s Sanjay Etc. (All accused persons "Acquitted") Page 16 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 official. He further stated that the raiding party reached at the residence of accused Sanjay Sahipur at around 11.30 AM and he was arrested from his office. He categorically admitted that at the time of arrest of accused Sanjay Sahipur, IO did not give any notice U/s 160 Cr.P.C to either accused Sanjay Sahipur or to his family members. Quite surprisingly, he submitted that arrest of accused Sanjay Sahipur was completed at about 5.30 PM. He further stated that complainant Shri Rajeev Pahuja had met them on the main road near PS Shalimar Bagh in Pitampura, but he hastened to add that he did not meet him personally as before that he had already been confronted with some questions about the complainant Shri Rajiv Pahuja being in the custody of police in case FIR No.728/2006, PS Saraswati Vihar, U/s 52 A/63/65/68 of Copyright Act. He further stated that the documents of arrest of all the four accused persons were prepared in the Office of Special Cell. He pleaded ignorance about the presence of accused Parveen Chugh, Pratap and Om Prakash in the office of Special Cell at about 2.25 PM on 01.07.2006.
30. PW18 ASI Dilbagh Singh was posted as Duty Officer in PS Special Cell at the relevant time and he has proved the case FIR in the matter as Ex.PW18/A.
31. PW20, the star witness of the prosecution case, Inspector Gajender (the then SI), SHO PS Mangolpuri in his evidence stated that on 17.04.2006, one complaint of North Delhi Cable was marked to him for State V/s Sanjay Etc. (All accused persons "Acquitted") Page 17 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 enquiry. He conducted enquiry and recorded statements of witnesses and found evidence against accused persons of threatening the complainant and his other small operators and cutting their cable wires and demanding money from them. Thereafter, on 26.06.2006 after completion of the enquiry, he got the case FIR in the matter registered and thereafter on 01.07.2006, arrested accused Sanjay Sahipur, Parveen Chugh, Om Prakash and Pratap and thereafter on 11.07.2006 arrested accused Sanjay Manjri and Pawan. He further stated that he got the statements of four witnesses namely Shri Rajeev Pahuja, Shri Roshan Lal Goel, Shri Ajay Narula and Shri Sanjeev Pahwa U/s 164 Cr.P.C recorded and field chargesheet in the matter.
32. In his crossexamination, he categorically admitted that in the rukka he mentioned having received copy of letter bearing endorsement No. 90C from ACP (Special Cell), NR on 17.04.2006, but the complaint on the basis of which rukka in the matter was prepared does not bear the said endorsement. He also admitted that report of the enquiry, conducted by him from 17.04.2006 till 26.06.2006 was not made part of the chargesheet. He further admitted that the same should have been made part of the final report in the matter as per law. He further admitted that none of the witnesses gave any documents in support of their averments to him. He further admitted that complainant did not hand over the list of his 60 cable operators (public witnesses in this case). He further stated that during enquiry it came to his State V/s Sanjay Etc. (All accused persons "Acquitted") Page 18 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 notice that some complaints filed by the witnesses in the matter were pending enquiry in PS Shalimar Bagh, but he did not obtain any final report from the said PS. He was confronted with the flaws with regard to the dates in the different arrest memos in respect of four accused persons, purportedly prepared by him on 01.07.2006. Surprisingly, he stated that the raiding party had gone to arrest accused Sanjay Sahipur in one vehicle, i.e Maruti Zen and the same was driven by him and in all there were only five members. He further stated that the raiding party had reached the village of accused Sanjay Sahipur early in the morning. He also admitted having not given any notice in writing either to accused Sanjay Sahipur or to his family members before his arrest. He further admitted that no entry of arrival or departure with regard to investigation in the matter was made in Special Cell office. He further stated that he had information that accused Sanjay Sahipur was the owner of Avtar Cable Network, but he did not make enquiry about his aforesaid business from his covillagers, neighbours and the Pradhan of the village. He volunteered to add that through complainant Shri Rajeev Pahuja, he had sufficient knowledge that he was engaged in the business of cable network. He further admitted that except complainant Shri Rajeev Pahuja, he did not join any other public person in the investigation. He further stated that some of the documents of arrest of accused Parveen Chugh, Om Prakash and Pratap were prepared by HC Ram Niwas and some by him. He further admitted that initial enquiry in the matter was marked to Inspector Anil Dureja, who assigned the same to him.
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33. Most astonishingly, he submitted that he conducted investigation qua accused Rakesh and Ajay in the matter, but he could not trace them. He categorically denied the suggestion that Ajay, named in the FIR was the proprietor of M/s Avtar Cable Network, who was not arrested in the matter and was let off after taking money from him. He also admitted having talked to accused Pratap on phone prior to registration of FIR. He further admitted that he did not take accused Sanjay Manjri on PC remand, knowing fully well that he was a bad character and two times NSA detainee. He further admitted that no FIR in any PS was lying registered against accused Parveen Chugh. He further admitted that during enquiry conducted by him from 17.04.2006 to 26.06.2006, none of the witnesses named accused Parveen Chugh and Pratap. He further admitted that various complaints were filed by accused persons against him before the higher authorities.
34. This witness made another shocking revelation that at the time of filing of chargesheet in the matter, he did not deposit the police file with the Naib Court attached to the court, as being an Officer of the Special Cell, he was entitled to keep the same with him till the stage of arguments on charge.
35. This witness further admitted having torn the case diaries and the supplementary statement of witness, but explained that in case something remains to be mentioned in the case diary, then the same can be torn and new case diary in its place can be written, incorporating the correct facts. He State V/s Sanjay Etc. (All accused persons "Acquitted") Page 20 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 further admitted that he did not inform his senior officers about tearing off the case diaries. He further admitted of having torn the supplementary statement of witnesses U/s 161 Cr.P.C of the witnesses.
36. This witness was also confronted with the recorded conversation between PW15 HC Hari Kishan, accused Pratap and Parveen Chugh. He admitted the voice of all the three persons therein. This witness when confronted with the fact that he had not written complete particulars of accused Rajat @ Gogi and Jagmohan in Column No.2 of the chargesheet, he admitted his lapse. He also pleaded ignorance about the status report dated 22.02.2007, filed by ACP Special Cell (NR) before the Hon'ble High Court in a Writ Petition filed by accused persons for transfer of investigation from Special Cell to some other agency.
37. This is all as far as prosecution evidence in the matter is concerned. Thereafter, statements of accused persons u/s 313 Cr.P.C were recorded, which are as under.
38. Statement U/s 313 CrPC of Accused Sanjay Sahipur:
This accused, in his statement u/s 313 CrPC, submitted that he was engaged in the business of leth machine in his village Sahipur. He produced documents in this regard i.e. License issued by MCD and electricity bills. He further stated that he came to know that IO of this case falsely State V/s Sanjay Etc. (All accused persons "Acquitted") Page 21 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 implicated him at the instance of complainant Rajiv Pahuja, ACP Ravi Shankar and Inspector Anil Dureja for extorting money from his family. He was picked up by police from his residence at about 06:30 AM on 01.07.2006, was kept for the entire day in the office of Special Cell/NR, threatened of police custody remand and was left only after a sum of Rs.1 Lac was paid to the police officials of Special Cell/NR. He further stated that his name was added in the case as the IO had to delete the name of Ajay, the owner of Avtar Cable, Rakesh, Rajat @ Gogi and Jagmohan from whom he had already taken hefty sum. He further stated that after his false implication in the matter, he made several representations to higher police authorities against ACP Ravi Shankar, Inspector Anil Dureja, complainant Rajiv Pahuja and IO SI Gajender but no action thereupon was taken as the then Joint CP (Special Cell) was in league with the aforesaid police officers.
Statement U/s 313 Cr.P.C of Accused Pratap:
39. This accused, in his statement, stated that at or around 01.07.2006 he was running Cable business in the name and style of North Shalimar Cable TV Network at KP Block, Pitampura, Delhi. He had acquaintance with accused Praveen Chugh, who was also engaged in the similar business, though in a different area but he had no interaction with complainant Rajiv Pahuja. He further stated that he was falsely implicated in this case by IO SI Gajender at the instance of complainant Rajiv Pahuja, Inspector Anil Duraja and ACP Ravi Shankar to extort money and to create monopoly of the business in State V/s Sanjay Etc. (All accused persons "Acquitted") Page 22 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 favour of complainant Rajiv Pahuja and to destabilize him from his business. He further stated that on 01.07.2006 at about 12:45 PM, he alongwith Praveen Chugh and Om Prakash was lifted from Gujrawala Town, by armed policemen of Special Cell. Their mobile phones were switched off and taken possession of by those policemen. They were made to appear before ACP Ravi Shankar who misbehaved with them in foul language. They were made to sit for the whole day in the Special Cell office. Thereafter, at the instance of Inspector Anil Dureja, he alongwith other two persons were named in this case showing him to be the extortionist. A sum of Rs.8.00 Lakhs was demanded from him by Inspector Anil Dureja and SI Gajender, which amount after negotiation was settled to Rs.3 Lacs. A sum of Rs.1 Lac was paid to Inspector Anil Dureja and SI Gajender, however he was kept in custody, his signatures were taken on some blank papers. Next day, a sum of Rs.2 Lacs was paid by his relatives to the aforesaid persons. He further stated that he made several complaints to the higher authorities against the aforesaid officers but no action thereupon was taken as the then Joint CP (Special Cell) was in league with the aforesaid policemen. He further stated that one of the team members of Special Cell namely PW15 HC Hari Kishan told him the entire story as to how he was implicated in this matter. PW15 handed over him the copies of torn CDs (Case Diary) in the matter written by IO SI Gajender. He further stated that with a view to counter his complaint to higher authorities, IO changed the statement of complainant in this matter. Earlier, the statement of complainant Rajiv Pahuja was of one page, which was later on converted to the statement State V/s Sanjay Etc. (All accused persons "Acquitted") Page 23 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 running into 6/7 pages. He further stated that he and accused Praveen Chugh recorded the conversation between him, PW15 and accused Praveen Chugh. This accused further stated that in all, the police officials of Special Cell might have extorted a sum of Rs.3035 Lacs from the accused persons. He also explained the modus operandi adopted by the IO for extorting money from the accused persons. The IO would get a complaint against accused persons made from PW Rajneesh Bhatnagar, who is a lawyer himself and thereafter on the basis of said complaint would call the accused persons and then leave them only after taking money. In this way evidence against accused persons was also created being used lateron.
Statement of U/s 313 Cr.P.C of Accused Praveen Kishan Chugh:
40. This accused in his statement u/s 313 CrPC stated that at or about 01.07.2006, he was doing cable business at Gujrawala Town as a Distributor of WIN CABLE and DATACOM Private Limited. He and accused Om Prakash had partnership with complainant Rajiv Pahuja, who was the owner of North Delhi Cable Private Limited. During the course of business, complainant Rajiv Pahuja owed a sum of Rs.24 Lacs to them and in order to avoid making the aforesaid payment he in connivance with his relative Inspector Anil Dureja got him and accused Om Prakash involved in this case. As regards his arrest in the matter on 01.07.2006, he stated on the lines of accused Pratap. He also deposed on the lines of accused Pratap with regard to receipt of torn State V/s Sanjay Etc. (All accused persons "Acquitted") Page 24 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 CDs from PW15 HC Hari Kishan and with regard to recording the voice conversation.
Statement U/s 313 Cr.P.C of Accused Om Prakash:
41. This accused u/s 313 Cr.P.C stated that at or around 01.07.2006, he was doing his cable business at Gujrawala Town as a Distributor of WIN CABLE and DATACOM Pvt. Ltd.. He and accused Praveen Chugh had partnership with North Delhi Private Limited, whose owner was complainant Rajiv Pahuja. During the course of business, the complainant owed a sum of Rs.24 Lacs to him and accused Praveen Chugh. With a view to avoid making the aforesaid payment to them, he in connivance with his relative Inspector Anil Dureja got him involved in this case. He also corroborated the account of his arrest on 01.07.2006 as given by accused Pratap and Praveen Chugh. He further stated that when he was falsely implicated in this case, he made several complaints to the higher police officials against SI Gajender, Inspector Anil Dureja, complainant Rajiv Pahuja and ACP Ravi Shankar. He would receive threats from the aforesaid policemen after every complaint and they would ask him to withdraw the same. He further stated that he filed a complaint case being Complaint Case No.205/03 titled as Om Prakash Vs. Rajiv Pahuja and others, which he had to compromise under the pressure of aforesaid policemen.
State V/s Sanjay Etc. (All accused persons "Acquitted") Page 25 of 50
FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 Statement U/s 313 Cr.P.C of accused of Pawan Kumar @ Sonu:
42. This accused stated in his statement u/s 313 Cr.P.C that he was doing the business of mineral water at Sector7, Rohini and was never associated with the business of Cable Network. At or around July, 2006, he did not know complainant Rajiv Pahuja but presently he has been working with him in New Delhi Cable Network. He further stated that he was falsely implicated in this case at the instance of his present Employer complainant Rajiv Pahuja, ACP Ravi Shankar and Inspector Anil Dureja for extorting money from him. He further stated that on 11.07.2006, he received call from Special Cell. He himself went to the Special Cell where he was detained by SI Gajender. He forced him to be a witness against the accused persons in the present matter but when he refused, he was detained for the night. In the morning, he was again threatened by IO SI Gajender. On his refusal to be a witness, he was arrested in this matter, his signatures were taken on some blank papers.
43. In order to substantiate the defense taken by the accused persons in the matter and to prove the facts regarding their false implication in the matter, 10 witnesses were examined as defense witnesses and testimonies thereof are as under.
State V/s Sanjay Etc. (All accused persons "Acquitted") Page 26 of 50
FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011
44. DW01 Sh. Mukesh Kumar, the covillager of accused Sanjay Sahipur in his evidence stated that on 01.07.2006, at about 06:30/7:00 AM, he got the information that some persons armed with weapons had come at the residence of accused Sanjay Sahipur and they were trying to take him away. He rushed to his house and found 3/4 persons taking away accused Sanjay Sahipur. Thereafter, when he did not get any clue as to who those persons were, he went to police station Shalimar Bagh and made enquiries in this regard. Later on, he came to know that accused Sanjay Sahipur had been away by the police officials of Special Cell/NR. Thereafter, he went to the office of Special Cell but he was not allowed to enter there. At about 09:00/09:30 PM, he was allowed to go inside Special Cell office, where he met SI Gajender, Inspector Anil Dureja and ACP Ravi Shankar, where a demand of Rs.1 Lac for not taking police custody remand of accused Sanjay Sahipur was made to him. A sum of Rs.1 Lac was handed over by him to SI Gajender outside the office of Special Cell, thereafter IO SI Gajender did not take the police custody remand of accused Sanjay Sahipur.
45. DW02 Ajay Kumar (accused named in the FIR), in his evidence stated that he was running his Cable business by the name and style of Avtar Cable Network. He also produced the original documents in this regard. He further stated that on 01.07.2006 at about 06:30/07:00 AM, he was picked up from his residence by the police personnels of Special Cell and was taken to their office where SI Gajender and Inspector Anil Dureja demanded a sum of State V/s Sanjay Etc. (All accused persons "Acquitted") Page 27 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 Rs.4 Lacs from him for striking off his name from this case. SI Gajender made him to call his family members for the aforesaid amount. He was made to sit in the office of Special Cell till night and was let off only after receiving a sum of Rs.3 Lacs. He further stated that accused Sanjay Sahipur has been doing the business of leth machine and was never engaged in the business of Cable.
46. DW03 Rakesh (named as accused in the FIR) in his evidence stated that at or around July, 2006, he was running a Kiryana shop in his village Sahipur. He was never engaged in Cable business. On 01.07.2006 at around 11:00 AM, when he came back to his house after exercise, he was told by his parents that police from Special Cell had come for his search. At around 03:00 PM, one police constable again came from Special Cell, Rohini and told that IO SI Gajender had called him. Thereafter, he alongwith his father went to the office of Special Cell. There a demand of Rs.3 Lacs was made for getting his name deleted from the case by SI Gajender. Next day, he handed over Rs.3 Lacs to SI Gajender who thereafter deleted his name from the case. SI Gajender threatened him not to disclose about the aforesaid demand to anybody. This witness made a startling revelation that at or around July, 2006, the police personnels of Special Cell/NR used to roam around in his village threatening the young boys of implicating in the Cable cases. State V/s Sanjay Etc. (All accused persons "Acquitted") Page 28 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011
47. DW04 ASI Hari Prasad from DIU, Northwest proved the Roznamchas of DIU dated 30.06.2006 and 01.07.2006 to show that till 01:30 PM on 01.07.2006, complainant Rajiv Pahuja was under interrogation by DIU Northwest in relation to a Copyright case.
48. DW05 Sh. Deepak Kumar Tanwar, Senior Scientific Officer from CFSL, has proved report with regard to the voices of PW15 HC Hari Kishan, accused Pratap and accused Pratap Chugh in the audio CD produced by the accused persons.
49. DW06 Sh. Surender Kumar, Assistant Nodal Officer from Idea Cellular proved the Customer Application Form (CAF) in respect of mobile phone number 9911104212 of accused Praveen Chugh and further stated that on 01.07.2006, there was a conversation from mobile number 9871190077 on the mobile of accused Praveen Chugh. He further stated the location of the phone of accused Praveen Chugh on 01.07.2006 at about 12:45 PM at or around Civil Lines and at about 02:25 PM at or around the office of Special Cell/NR.
50. DW07 Sh. Ram Hari Singh from MTNL, PW08 Sh. Tarun Khurana, Nodal Officer from Bharti Airtel and DW09 Sh. Ved Prakash, Assistant Nodal Officer, Reliance are not of much importance to the case as they have not proved the CDRs (Call Detail Records) produced by the State V/s Sanjay Etc. (All accused persons "Acquitted") Page 29 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 accused persons as the same were of the period prior to 1 year of their deposition.
51. This is all as far as evidence in the matter is concerned. At the time of hearing arguments on charge, this court observed that specific charges u/s 384 and 506 IPC were not framed in the matter by the Ld. Predecessor of this court and merely charge u/s 120B IPC was framed but now the entire evidence in the matter is over and there is no material on record to frame charges u/s 384 and 506 IPC against the accused persons.
52. In order to establish on record that the accused persons had hatched a conspiracy to do illegal act of extortion by causing criminal intimidation upon the witnesses, prosecution was required to prove that by all the accused persons under conspiracy, criminal intimidation was perpetrated upon witnesses and under the influence of alarm so caused to the witnesses they handing over money to the accused persons. None of the witnesses in the matter has supported the prosecution case with regard to the identity of the accused persons. None of the public witnesses has stated anything about demand of money by the accused persons and the handing over of the money by him to the accused persons. The Ld. APP has very vehemently argued that the witnesses were probably overpowered/overowed by the accused persons and deterrence was caused by them to forbid the witnesses from deposing in court. This court recorded the evidence of all the public witnesses and had State V/s Sanjay Etc. (All accused persons "Acquitted") Page 30 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 occasion to study their demeanor. The witnesses were apparently neither appeared frightened nor deterred. Their evidence was free flowing thereby giving reasonable indication that they stated truth before the court by not supporting the prosecution case, which in turn gives rise to inference that the entire investigation was stage managed by the police. The prosecution has not been able to prove on record that the accused persons were involved in any other case. It appears that by involving a bad character namely Sanjay Manjri, who was later on discharged in the matter, the IO kept the accused persons in the same bracket to create a propaganda as if the accused persons were also persons of bad character. This inference drawn by the court is not in thin air, there are reasonable basis for the same which are apparent from the careful perusal of the entire material on record. The basis are summarised hereunder.
53. Basis No.(i):
The first and foremost question which arises is why the matter came to be investigated by Special Cell and why the Special Cell did not wait for the outcome of the inquiry which was admittedly being conducted by the police of PS Shalimar Bagh? There is Delhi Police Special Cell Manual, 1999, which enlists the objects for which the Special Cell of Delhi Police was created. It was very vehemently argued by Ld. Defense counsels and rightly so that Special Cell of Delhi Police was formed under the Notification of Ministry of Home Affairs (MHA) to deal with the cases relating to the terrorist/extortionist/ Militant organisations. The scope and function of it was to have intelligence inputs from other agencies, preparation of periodic reports State V/s Sanjay Etc. (All accused persons "Acquitted") Page 31 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 on Terrorist activities, assessment of threats received from Terrorist outfits and to investigate the cases relating to Terrorist activities and those activities of gangsters/smugglers/gun runners and counterfeiters that are prejudicial to National security, public order and tranquility.
54. The Notification No. F1/5/2000HP1/Estt./186367 Dated the 26th March, 2002 in this regard is reproduced as under : " No. F1/5/2000HP1/Estt./ In exercise of the powers conferred by clause (s) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) read with the Govt. of India, Ministry of Home Affairs Notification No. U110011/1/74UTL(i) dated the 20th March 1974, the Lt. Governor of National Capital Territory of Delhi, hereby directs and declares the Special Cell (SB) of the Delhi Police which is presently functioning /located in the premises of Police Station, Lodhi Colony, New Delhi, to be a Police Station for the registration and investigation of cases relating to the Official Secrets Act, 1923 (14 of 1923), the Explosive Substances Act, 1908 (6 of 1908), the Foreigners Act, 1946 (31 of 1946), Terrorist Activities, offences against the State, activities of gangsters, smugglers, gun runners, mafias, counterfeiters, narcotics smugglers and other offences prejudicial to national security/interest, public safety and order, and tranquility or any other offences under the relevant Acts, and shall have jurisdiction over the whole of the National Capital Territory of Delhi, with immediate effect.
By order and in the name of the Governor of the National Capital Territory of Delhi.
Sd/ Deputy Secretary (Home) (Estt.) The said notification definitely does not include the cases of petty cable wire theft like the present one. PW15 and PW20 have categorically deposed in their evidence in court that these type of cases did not come within the ambit of Special Cell. It appears that angle of extortion was given to this State V/s Sanjay Etc. (All accused persons "Acquitted") Page 32 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 case by police officials of Special Cell, to bring it within its jurisdiction. PW20 SI Gajender was clearly aware of the several complaints in this matter, pending inquiry in police station Shalimar Bagh, yet he chose to register a case in Special Cell, carried on preliminary investigation for 2 months and 12 days, as per his own admission and further no evidence in the matter was collected to show that the accused persons were engaged in the activities of cutting the cable wires and threatening the small cable operators and demanding protection money from them.
55. A further very important question in the matter arises as to whether complaint Ex.PW2/A of North Delhi Cable Pvt. Ltd. was so grave that it required investigation by Special Cell and not by the local police. There are many unanswered questions in this regard for which proper investigation needs to be conducted. First of all, was it a single complaint or there were many complaint or copies of the same which were received in the office of the Joint Commissioner (Special Cell), the copy whereof with endorsement of ACP, Special Cell/NR which was marked for investigation to PW20. PW20 very conveniently and surreptitiously filed on record the complaint which nowhere shows that the same was marked for investigation to him. The complaint (Ex.PW2/A), on which the rukka in the matter was written was marked to DCP (Special Cell) by Joint Commissioner of Police (Special Cell) by diary no. 2561 dated 10.04.2006. There is no explanation as to why this complaint remained pending in the office of Joint Commissioner of Police State V/s Sanjay Etc. (All accused persons "Acquitted") Page 33 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 (Special Cell) for almost 3 months when it involved such an important matter. Secondly, why on 10.04.2006 itself, it evoked such prompt response from DCP (Special Cell), ACP (Special Cell)/NR and Inspector Anil Dureja (Special Cell)/NR that it was considered necessary by the Special Cell to investigate the same. Then there is a clear discrepancy as to why Ex.PW2/A has the diary number 222/06 HAC written over it whereas admittedly it had diary no. 86C of ACP SC/NR dated 10.04.2006 and then marking the same on the same day by ACP (SC)/NR to Inspector Anil Dureja for inquiry and report and then marking dated 10.04.2006 of Inspector Anil Dureja SC/NR to SI Gajender for necessary action and report as depicted on Ex.PW20/DX1. Why PW20 in rukka mentioned endorsement no. 90C/ACP/SC/NR when this endorsement is nowhere there on this document. Was it some other complaint, which was actually the basis of investigation. When PW20 was confronted with this, he had no answer thereto.
56. There is another unanswered question on this point that when there was such an urgency that DCP, ACP and Inspector of Special Cell/NR had successive markings on this complaint which was ultimately marked to SI Gajender on 12.04.2006 then why he took 2 months and 12 days in conducting a preliminary inquiry thereupon and why that preliminary inquiry report wherein he had purportedly recorded statement of victims, was not made part of record. Who is going to answer these questions? It even shrouds doubts as to whether any preliminary inquiry was conducted by PW20 or not. State V/s Sanjay Etc. (All accused persons "Acquitted") Page 34 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011
57. Basis No.(ii):
The next question which has no answer on record is that as per the version of PW20, all the witnesses had consistently named accused Sanjay Manjri to be the extortionist then why his police custody remand was not sought from the court, particularly when he was bad character of Kanjhawla area and NSA detainee and on lesser allegations against accused Praveen Chugh, Om Prakash and Pratap why their police custody remand was taken. On somewhat similar allegations against accused Sanjay Sahipur, why his police custody remand was not sought from the court.
58. Basis No.(iii):
The next point which again has no answer on record is why named persons in the FIR namely Rakesh and Ajay could not be traced during investigation, particularly when there is overwhelming material on record that Ajay is the owner of Avtar Cable Network. Why documents in respect of Avtar Cable Network could not be collected by the IO. In case diary no. 16, dated 26.07.2006, which was admittedly torn and thrown away by the IO, the said accused persons were exonerated from the case, particularly when in this case diary, the IO had stated that he had visited the office of Avtar Cable then inquiry should have been conducted by him as to who was the proprietor thereof. Had the documents in this regard been collected then it would have been apparent that it was Ajay DW02, who was the owner of Avtar Cable and the said cable business was being conducted by him from his residence, i.e, State V/s Sanjay Etc. (All accused persons "Acquitted") Page 35 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 House No.7, Village Sahipur. The documents in this regard are there on record. Another connected question, in this regard, which has no answer is why merely on the statement of complainant Rajiv Pahuja, IO PW20 presumed that it was accused Sanjay Sahipur, who was the owner of Avtar Cable Network. Where were the documents collected by the IO to fasten the ownership of Avtar Cable upon accused Sanjay Sahipur. Why the identity of accused Rakesh could not be ascertained during investigation, PW20 could not give any satisfactory answer whereas the named accused Rakesh and Ajay have appeared as Defense witnesses in the matter and have deposed on oath that although they were named in the FIR yet their names were deleted from the case by IO and other senior officers of Special Cell after taking hefty sum from them. It gives indication that the names of DW2 Shri Ajay Kumar and DW3 Shri Rakesh Kumar were purposely added to extort money from them.
59. Basis No.(iv):
There is another important question mark on the investigation as to whether accused Sanjay Sahipur, Parveen Chugh, Om Prakash and Pratap were actually arrested in the manner they were shown to have been arrested. There are clear contradictions with regard to timing of arrest of all the aforesaid persons. As regards the arrest of accused Sanjay Sahipur, firstly there is a big question mark as to whether PW14 HC Sanjeevan was part of the raiding party or not? How many persons had gone to arrest accused Sanjay Sahipur, whether he was arrested from his office or from his State V/s Sanjay Etc. (All accused persons "Acquitted") Page 36 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 residence? There are clear and apparent contradictions with regard to time of his arrest. Another important grey area in this regard is as to whether at that time complainant Shri Rajeev Pahuja was there with the investigating team or not. PW14, HC Sanjeevan has categorically deposed in his evidence in court that the only role assigned to him in the investigation was to get the FIR registered and he did not join investigation with IO at any point of time thereafter, whereas PW15 HC Hari Kishan has categorically deposed that at the time of arrest of accused Sanjay Sahipur, HC Sanjeevan was also present with them. PW15 has stated that in total there were nine members in the investigation team, whereas PW17 has deposed the number to be seven, whereas IO/PW20 has deposed that the investigating team was of only five members. PW15 and PW17 have deposed that the policemen had gone in two vehicles, whereas PW20 has deposed that it was a single vehicle, i.e a Maruti Zen car in which the investigating team had gone. PW17 categorically stated that accused Sanjay Sahipur was arrested from his office, whereas PW15 and PW20 stated the place of his arrest to be from his house. PW15 further went on to state that initially they had raided his office, but when he was not found there, then the police party had gone to his residence. Then even with regard to residence, there is a discrepancy. PW15 stated that this accused was arrested from second floor of his residence, whereas PW20 stated that he was arrested from the first floor of his house. PW15 stated that the house of this accused was situated in the middle of the village, whereas PW17 stated the same to be at the outskirts of the village. To make things State V/s Sanjay Etc. (All accused persons "Acquitted") Page 37 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 worst, the place of arrest of this accused shown in his Arrest Memo Ex.PW2/E is office of Speical Cell and time of arrest has been mentioned as 2.00 PM, meaning thereby that this accused was shown to have been arrested from the office of Special Cell, Rohini. A perusal of Ex.PW2/E in Column No.9 dealing with "Person of the arrestee to be informed", the name of one "Ajay", his uncle has been shown. This Ajay is none other than DW2 and his address, i.e House No.7, Village Sahipur, is the office of Avtar Cable Network and yet the IO stated that he could not arrest accused Ajay in the matter as his identity could not be established during investigation. There is clear discrepancy with regard to time of his arrest. PW20 has categorically stated that this accused was arrested at about 6.30 AM on 01.07.2006, whereas PW15 stated the time of his arrest to be 2.00 PM, whereas PW17 stated the same to be around 12.00 PM. There is further contradictions in the testimony of prosecution witnesses as to whether the complainant Shri Rajeev Pahuja was with the police party at the time of arrest of accused Sanjay Sahipur or was he elsewhere. First of all, complainant Shri Rajeev Pahuja in his evidence categorically denied his presence with the investigating team at the time of arrest of accused Sanjay Sahipur, whereas PW15 in his evidence stated that at about 12.00 PM when they were coming back after arresting accused Sanjay Sahipur, complainant Shri Rajeev Pahuja met them on the way and he was then taken to the Office of Special Cell, whereas PW17 also stated that complainant Shri Rajeev Pahuja met them on the way and accompanied them to the place of arrest of accused Sanjay Sahipur, but he hastened to add that he State V/s Sanjay Etc. (All accused persons "Acquitted") Page 38 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 himself did not meet complainant Shri Rajeev Pahuja and it was the IO who could tell about the same. Whereas, PW20, the IO in his evidence stated that complainant Shri Rajeev Pahuja was there with them as a member of raiding party since 6.00 AM. Therefore, the presence of complainant Shri Rajeev Pahuja is clearly doubtful at the time of alleged arrest of accused Sanjay Sahipur. Now, let us see what is the further material on record in this regard.
The consistent stand of the accused persons was that on 01.07.2006, complainant Shri Rajeev Pahuja could not have been with the police party, as he was under interrogation at the Office of DIU, NorthWest, Rohini in case FIR No.728/2006, U/s 51, 52A, 63, 65 and 68 A of Copyright Act, PS Saraswati Vihar, as is depicted in Ex.DW4/A, particularly DD No.9, wherein it has been categorically recorded that the complainant was under
interrogation with DIU, NW in the presence of ACP, DIU. This again belies the story of police.
60. Now, let us see the arrest of accused persons namely Parveen Chugh, Pratap and Om Prakash. As per IO/PW20, they were arrested at about 4.30 PM from KP Block, Shalimar Bagh. PW15 in his cross examination categorically stated that accused Sanjay Sahipur was arrested at about 2.00 PM; thereafter PW20 took about 23 hours in preparing his Arrest Memo, Personal Search Memo and recording his disclosure statement at the spot, which means that police party was already there at village Sahipur till 4.00 PM. This witness further went on to state that it took police party State V/s Sanjay Etc. (All accused persons "Acquitted") Page 39 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 another two hours to trace accused Parveen Chugh, Pratap and Om Prakash, which means till 6.00 PM they had not arrested aforesaid accused persons. Then, how they could be shown to have been arrested at 4.30 PM. Another witness of their arrest PW17 in his evidence stated that after arrest of accused Sanjay Sahipur at around 2.00 PM, the police party came back to the office of Special Cell, whereafter another team was constituted which left in search of the aforesaid three accused persons and reached back to the office of Special Cell after arresting them at about 4.30 PM; whereas PW20 in his evidence stated that after arresting the aforesaid three accused persons, the police party reached at the O/o Special Cell at around 8.00 PM. If the timings of arrest of the aforesaid three accused persons are seen juxtaposed with the evidence of DW6 Shri Surender Kumar, who in his evidence has categorically deposed that as per the Call Detail Records (CDRs) of the mobile phone of accused Parveen Chugh, at about 12.45 PM on 01.07.2006, his location was at Derawal Nagar and at about 2.25 PM his location was at Sector3, Rohini, i.e at or around the Office of Special Cell. There is another important document which clearly belies the theory of arrest of all the aforesaid three accused persons propounded by the IO, i.e the report of ACP, Special Cell, NR filed before the Hon'ble High Court of Delhi, which is Mark X2, wherein the ACP, Special Cell, NR stated before the Hon'ble High Court of Delhi that the aforesaid three accused persons were called in the O/o Special Cell, their detailed interrogation was carried out in presence of witnesses Shri Roshan Lal Goel, Shri Ajay Narula, Shri Sanjeev Pahuja, Shri Rajeev Chawla and State V/s Sanjay Etc. (All accused persons "Acquitted") Page 40 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 Shri Rajnish Kumar and thereafter they were arrested. If the aforesaid Status Report of ACP, Special Cell, NR is to be believed then the documents of arrest of these three accused persons prepared by the IO are apparently false.
61. Basis No.(v):
Another important unanswered question in the matter is why the names of accused Rajat @ Gogi and Jagmohan were not put in Column No.4 of Chargesheet and why their names were put in Column No.2 of the chargesheet by the IO with incomplete particulars with regard to their parentage and address(es)? When IO/PW20 was confronted with this fact in his crossexamination by the defence, then he clearly admitted his lapse in not giving their complete particulars in Column No.2 of the Chargesheet, however, he clarified that although PW Shri Roshan Lal had categorically named them the ones who had cut the cable wires and at one point electrocuted the cable wires, yet IO did not find anything incriminating against them and accorded benefit of doubt to them. Here also, the conduct of IO is clearly suspicious. There are chances that the names of these two accused persons were either falsely entered into the complaint of PW Shri Roshan Lal Goel or they were not chargesheeted after taking hefty amount from them.
State V/s Sanjay Etc. (All accused persons "Acquitted") Page 41 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011
62. Basis No.(vi):
Another answered question is why the IO did not collect the relevant documents in the matter, i.e the documents with regard to ownership of Avtar Cable Network and why merely on the asking of complainant Shri Rajeev Pahuja the ownership of Avtar Cable Network was fastened upon accused Sanjay Sahipur? Why documents of other accused persons with regard to their profession were not taken into possession? Why the investigation report with regard to earlier complaints, pending in PS Shalimar Bagh were not taken? If the accused persons namely Parveen Chugh, Om Prakash and Pratap had disclosed to the IO that complainant Shri Rajeev Pahuja was their partner and he owed a sum of Rs.2024 lakhs to them, then why the relevant documents like Partnership Deed/Agreement were not collected by the IO? This clearly goes on to show that IO in league with his superior officers was on a spree to implicate the accused persons, dehors the documentary material which was available, but was not collected.
63. Basis No.(vii):
Another very important aspect which needs investigation/ thorough enquiry is under what circumstances the IO torn the Case Diary No. 16 as also the supplementary statement of complainant Shri Rajeev Pahuja. Is there any justification for the same in law? Is he authorised to undertake such an activity under the law? When IO was confronted with this, then he crossed all the limits and explained the reasons for tearing of the case diaries by stating that if some mistake(s) or omission(s) was noticed in any case State V/s Sanjay Etc. (All accused persons "Acquitted") Page 42 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 diary, then the same can be torn and thrown off. He categorically admitted having torn and thrown off Case Diary No.16 in this case, as he found some mistake or omission therein. This court compared Case Diary No.16 on police file and the torn one (Ex.PW20/DX3 to Ex.PW20/DX7). The explanation given by IO for tearing off the case diary is that he had forgotten to mention that on 24.07.2006 complainant Shri Rajeev Pahuja had handed over a photocopy of Electricity Bill to him and he had not mentioned about interrogation of witness Shri Roshan Lal. Complainant when crossexamined by learned APP in court stated that he had never handed over any Electricity Bill to the IO on 24.07.2006. Thereafter, this court meticulously went through both the Case Diaries and found the sole object of tearing off and throwing the case diary No.16 was to exculpate DW2 Shri Ajay and DW3 Shri Rakesh, as by then the IO had made up his mind to strike off their names from the case. As regards the legal position whether the IO could have torn the case diary, reference could be had to Rule 22.50 of Punjab Police Rules, 1913, which is reproduced as under:
Rule 22.50 Punishment for making false entry:
Any police officer who enters or causes to be entered in the daily diary a report which he knows, or has reason to believe, to be untrue, whether he has or has not been directed to make such entry by a superior officer, shall ordinarily be dismissed from the service.
A copy of this rule and also a copy of the following certificate shall be affixed on the cover of the daily diary in every police station or post and in lines.
"Certified that this register contains - leaves in duplicate. No page should be removed from it. Wrong entries, if any, should be scored out by means of single line and initialled by a Senior Police Officer; in no case should any such entry be mutilated or rendered illegible nor should paper be pasted over it."State V/s Sanjay Etc. (All accused persons "Acquitted") Page 43 of 50
FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 Therefore, there is clear bar for tearing or defacing case diary under Punjab Police Rules, which are applicable to Delhi Police also. Making the position worst, the IO further did not mention about this fact of tearing and throwing of case diary No.16 and the supplementary statement of complainant Shri Rajeev Pahuja in the next case diary. He further did not inform about the same to his superior officers, which clearly gives indication that IO was going berserk in this matter in his zeal to go in the matter in the way his whims and fancies derived him.
64. Basis No.(viii):
There is another important aspect as to whether the IO got the statements of P.Ws Shri Rajnish Kumar, Shri Roshan Lal Goel, Shri Ajay Narula and Shri Sanjeev Pahwa recorded U/s 164 Cr.P.C in a bonafide manenr or was he on a spree to create evidence? Witness Shri Rajnish Kumar categorically denied having made any statement before the learned Metropolitan Magistrate. When he was confronted with his signatures on his statement U/s 164 Cr.P.C, he even denied the same; whereas the other witnesses categorically stated that the IO had pressurized them to make such statements. The dates of moving applications for recording of statements of the aforesaid witnesses are very crucial. The applications were moved by the IO for the said purpose immediately after arrest of all the accused persons in the matter. This court cannot loose sight of the fact that the witnesses were small operators, working under complainant Shri Rajeev Pahuja and at the State V/s Sanjay Etc. (All accused persons "Acquitted") Page 44 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 time of recording of their statements U/s 164 Cr.P.C, they could not have been free from the pressure of complainant as also the policemen. However, when these witnesses came in the witness box in court, they stated the truth and in any case, their statements given in court have to be given predominance over their complaints and statement U/s 164 Cr.P.C recorded during investigation.
65. Learned defence counsels have made a strong prayer that complainant Rajiv Pahuja, IO/SI, Gajender, Inspector Anil Dureja, ACP Ravi Shanker and HC Hari Kishan are clearly guilty of committing offences punishable U/s 166, 167, 192, 193, 195, 195 A, 196, 201, 204, 211, 217, 218, 220, 221, 384, 389 IPC r/w Section 120 B IPC and Section 7, 8 and 13 of the Prevention of Corruption Act, 1988 as also Rule 22.50 of Punjab Police Rules.
66. There are certain other disturbing features in the matter namely why no action by the higher officials of Special Cell and Delhi Police was taken upon the complaints filed by the accused persons against IO, Inspector Anil Dureja and ACP Ravi Shankar. The accused persons also had right of being heard during investigation. It appears that an eye wash departmental action was taken against HC Hari Kishan only, who was put under suspension for a single day. Why and under what circumstances, the IO of the case was in touch on phone with complainant Rajiv Pahuja and accused Pratap before the registration of FIR? If the contents of CD of conversation between PW15, accused Pratap and accused Praveen Chug is to be considered than State V/s Sanjay Etc. (All accused persons "Acquitted") Page 45 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 that reveals a shocking state of affairs which was prevalent at that time in Special Cell NR. It would clearly show how ACP Ravi Shanker, Inspector Anil Dureja, SI Gajender and complainant Rajiv Pahuja falsely implicated accused persons in the matter.
67. Per contra, the learned APP has argued that although there are apparent lapses in the investigation conducted in this matter, but the same are liable to be overlooked. In support of her contention, she has relied upon the law laid down by the Hon'ble Supreme Court in case reported as, "AIR 1995 SC 2472", titled as, "Karnail Singh V/s State of MP". I have gone through the said judgment. The said judgment goes against the policemen. The Hon'ble Supreme Court in the said judgment has put a rider upon the trial courts to strictly scrutinise the material on record and defective investigation should not be made a ground to acquit the accused persons, if there is overwhelming evidence against them on record. Here in this case, the investigation is not defective, but appears to be purposive, the object whereof was to create false evidence to frame the accused persons.
68. The learned APP then argued that the statement of witnesses recorded U/s 164 Cr.P.C can be looked into by this court to convict the accused person and in this regard she has referred to the law laid down in case reported as, "1911 (1) KB 988", titled as, "Fletcher Hawkins V/s Powell Diller Steam Coal Company Limited". I have gone through the law laid State V/s Sanjay Etc. (All accused persons "Acquitted") Page 46 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 down in the aforesaid judgment. The Kings Bench in the aforesaid judgment has been pleased to hold as under:
"Proof does not mean to prove the real mathematical demonstration, because that is impossible; it means such evidence as would induce a reasonable man to come to a particular conclusion".
69. The aforesaid observation is a salutory one and has stood the test of time and has developed into a standard of proof. In reaching to a conclusion, the court can use the process of inference to be drawn from facts produced or proved before it. Law gives absolute discretion to the court to presume the existence of any fact which is likely to have happened. In this process, a court may have regard to common course of natural events, human conduct, public or private business visavis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act as well. In this case, as is apparent from the discussion held hereinabove, the needle of suspicion points towards the policemen rather then towards the accused persons. The learned APP also placed reliance upon judgment of the Hon'ble Supreme Court in Criminal Appeal No.1117/2011, titled as, "Bhagwan Dass V/s State of Delhi", delivered on 09.05.2011, wherein Hon'ble Supreme Court in a case of honour killing upheld the conviction of appellant, who was father of deceased and did not accept the testimony of witness Smt.Dillo Devi, who was the mother of appellant, who retracted her earlier statement given to police. In the said case, the Hon'ble Supreme Court after considering the other overwhelming evidence, which was in the form of extra judicial State V/s Sanjay Etc. (All accused persons "Acquitted") Page 47 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 confession as well, has been pleased to hold that the statement given by PW2 Smt.Dillo Devi in trial, whereby she made diversions from her earlier statement cannot be believed.
70. A perusal of the aforesaid judgment of the Hon'ble Supreme Court would reveal that there was other overwhelming evidence in the case which pointed towards the guilt of the appellant and his exculpation by his mother in the witness box was not believed.
71. Duly bound by the judgment of Hon'ble Supreme Court, I am of the considered opinion that this judgment does not help the prosecution in any manner.
72. From the tenor of arguments advanced at bar by learned APP, it is apparent that learned APP exhausted all her energy in defending the Investigating Officer/PW20, but virtually no arguments were advanced against the accused persons. In my opinion, there was nothing much to argue by the prosecution in the matter against the accused persons.
73. The learned defence counsels also cited following judgments to show that IO/SI Gajender, Inspector Anil Dureja, HC Hari Kishan, complainant Rajeev Pahuja and ACP Ravi Shanker are liable to be tried for the offences mentioned in the preceding paragraphs. The said judgments are State V/s Sanjay Etc. (All accused persons "Acquitted") Page 48 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 as under:
a) 154 (2008) DLT 242, titled as, "Tej Singh V/s State & Anr.";
b) AIR 1964 SC 1773, titled as, "Hari Das & Anr. V/s State of West Bengal & Ors."
c) AIR 1959 Calcutta 293 (V 46 C 77), titled as, "Dasarathi Mondal & Ors. V/s Hari Das & Anr.";
d) AIR 1930 Patna 550, titled as, "Banti Pande V/s Emperor" and;
e) 5 Cal. 282, titled as, "Ashrof Ali & Anr. V/s The Empress".
I have gone through the aforesaid judgments. This is not for this court to elaborate or deliberate upon the law laid down in the aforesaid judgments in this case, lest it may prejudice investigation in the matter.
74. From the aforesaid discussion, it is crystal clear that there is nothing against the accused persons in this case. All the five accused persons are accordingly acquitted of the charges in this case. Their B/Bs stand cancelled, sureties stand discharged. Endorsement(s), if any, on the documents of sureties or accused persons be cancelled forthwith. Original documents, if any, either of accused persons or of sureties be returned to its rightful owner forthwith. File be consigned to Record Room after completion of necessary formalities.
75. But, then the above cannot be the end of this case. It is indeed disturbing that the IO of this case in league with his senior officers of Special Cell, NR, levelled false accusations against the accused persons at the instance State V/s Sanjay Etc. (All accused persons "Acquitted") Page 49 of 50 FIR No. 46/2006: PS Special Cell: U/s 384/506 IPC r/w Sec.120B IPC DOD: 13.09.2011 of complainant Shri Rajeev Pahuja. The IO went on in his zeal to frame the accused persons and in the process created false investigation record, torn off the investigation record and extorted money from the accused persons by putting them in fear of implicating them in MCOCA case (as is apparent from the perusal of complaints made by the accused persons to the higher police officers). It is also apparent that the sole object/intention of the complainant Shri Rajeev Pahuja in the matter was to set the criminal law enforcement machinery into motion against the accused persons for his own vested gains and the policemen with their own vested gains carried the figment of imagination of complainant further by creating false records. Under these circumstances, this court hereby directs that an FIR under appropriate sections of law, as mentioned in the preceding paragraphs (Paragraph No.
65), be registered against the aforesaid policemen namely HC Hari Kishan, IO/SI Gajender, Inspector Anil Dureja, ACP Ravi Shanker, complainant Shri Rajeev Pahuja and any other person, whosoever is found indulged into criminal activity in this case.
76. A copy of this order be sent to Commissioner of Police, Delhi forthwith for getting the FIR registered and getting the matter investigated in accordance with law.
Announced in the open court (Vinod Yadav)
on 13.09.2011 Chief Metropolitan Magistrate:
Delhi
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