Delhi District Court
Cbi vs . Santoshanand Etc. on 19 July, 2012
1/19
IN THE COURT OF SH. VINOD GOEL, ADDL. SESSIONS
JUDGE, (EAST), KARKARDOOMA COURTS, DELHI.
In re :
SC No. 1/2006
RC No. 1/75
CBI Vs. Santoshanand etc.
Order
1.Vide this order, I intend to decide three applications under section 319 Cr.P.C. filed separately by accused persons Santoshanand, Sudevananda Avdhuta and Gopalji. Vide his application u/s 319 Cr.P.C., the accused Sudevananda Avdhuta seeks prosecution of Shri Arun Kumar Thakur and Shri Arun Kumar Mishra and vide their separate applications u/s 319 Cr.P.C the accused Santoshanand and Gopalji have sought prosecution of Shri Arun Kumar Thakur, Shri Arun Kumar Mishra and Shri Shiv Sharma.
2. It is alleged by accused Sudevananda in his application u/s 319 Cr.P.C. that Shri Arun Kumar Thakur in his statement dated 21.02.1975 recorded u/s 164 Cr.P.C. confessed that he alongwith his CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 2/19 associates were involved in the crime in question. It is also alleged that Shri Arun Kumar Mishra has made extra judicial confession before a SubJailer Shri Rehman of Samastipur on 05.03.1975 and both these persons Shri Arun Kumar Thakur and Shri Arun Kumar Mishra were let off and they were not chargesheeted. It is also alleged that Shri Arun Kumar Thakur and Shri Arun Kumar Mishra have made extra judicial confession on 05.03.1975 before Shri Shanker Shah, whose statement was recorded u/s 164 Cr.P.C. on the basis of which CID and CBI arrested 12 persons. It is also alleged that Shri S.B. Sahai, retired DGP (Bihar) gave his report dated 24.10.1978 Ex. DW40/1 which shows involvement of Shri Arun Kumar Thakur and Shri Arun Kumar Mishra in the crime. On these allegations, the applicant/accused Sudevanand Avdhuta prayed for summoning of Shri Arun Kumar Thakur and Shri Arun Kumar Mishra and to proceed against them with the trial together with the present set of the accused persons.
3. In his application, accused Santoshanand has alleged that CBI/Bihar police received information during the investigation that Shri Shanker Shah had been the eye witness to the incident and CBI CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 3/19 got recorded the statement of Shri Shanker Shah and arrested Shri Arun Kumar Thakur and Shri Arun Kumar Mishra and carried out search at their houses. It is also alleged that subsequently CBI also arrested one Shri Shiv Narain Vishvakarma @ Shiv Sharma on or about 13.02.1975. It is also alleged that on 21.02.1975 and 05.03.1975, the statement of Shri Arun Kumar Thakur and Shri Shanker Shah u/s 164 Cr.P.C. were recorded respectively and in his statement Shri Shanker Shah stated that he saw Shri Arun Kumr Thakur and Shri Arun Kumar Mishra at the platform at the time of incident and saw them running just after after explosion. It is also alleged that in the month of May/June, 1975 despite evidence, CBI dropped investigation against Shri Arun Kumar Thakur and Shri Arun Kumar Mishra and 6 other persons and members of Anand Marg Organization and subsequently, Chief Minister of Bihar vide letter dated 30.08.1978 ordered a secret inquiry to be conducted by the then DIG, Cabinet (Vigilance) Department, and said Shri S.B. Sahai gave his report Ex. DW40/A and subsequently, Shri V.M. Tarkunde submitted his report and that DW40 Shri S.B. Sahai deposed that he gave his report to the Chief Minister of Bihar CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 4/19 regarding his findings about the incident wherein he mentioned the involvement of Shri Arun Kumar Thakur and Shri Arun Kumar Mishra in the crime. On these allegations, accused Santoshanand has prayed for summoning of Shri Arun Kumar Thakur, Shri Arun Kumar Mishra and Shri Shiv Sharma on the basis of evidence of CW8, CW9 and DW40 and other records available before the court.
4. In his application u/s 319 Cr.P.C., the accused Gopalji apart from the above facts has alleged that on 23.02.1975, the CBI moved an application that Shri Arun Kumar Mishra has confessed his guilt and prayed for recording his statement u/s 164 Cr.P.C. It is alleged that on 05.03.1975 Shri Arun Kumar Mishra made extra judicial confession before the Jailer Shri Rehman of Samastipur jail where he admitted that he alongwith Shri Arun Kumar Thakur and Shri Shiv Sharma under the instructions of "boss Jha" conspired and handgrenade was thrown at the dais at Platform No. 3 of Samastipur Railway Station and thereafter, they ran away and Shri Arun Kumar Mishra refused to give his statement u/s 164 Cr.P.C. It is also alleged that in his statement Shri Arun Kumar Thakur and in his tape recorded confession Shri Arun Kumar Mishra, the name of Shri Ram CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 5/19 Bilas Jha as "Boss Jha", who was the MLC of Congress Party and a close associate of Shri Yashpal Kapoor, has come up and that Shri Yashpal Kapoor was the close associate of Smt. Indira Gandhi and it was specifically stated by the then Home Minister of India that CBI got a major breakthrough and accused in the murder of Shri L.N. Mishra has been arrested and despite this the CBI abandoned the case against Shri Arun Kumar Thakur and Shri Arun Kumar Mishra and six other arrested persons without following the due process of law and arrested the members of Anand Marg Organization. It is also alleged that one Shri Vikram was arrested on 24.07.1975, who turned an approver in the present case and his confessional statement was recorded on 14.08.1975 and subsequently, on 16.09.1975, the CBI requested the court that the originally arrested accused persons Shri Arun Kumar Thakur and Shri Arun Kumar Mishra be discharged as they have nothing to do with the crime and on 10.11.1975, chargesheet was filed in the court of Judicial Magistrate, Patna but no order of their discharge has been passed. It is also alleged that wife of Shri L.N. Mishra complained to the Chief Minister of Bihar about biased investigation of CBI and the Chief CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 6/19 Minister of Bihar, Shri Kapoori Thakur wrote a confidential letter to the then Prime Minister of India Shri Morarji Desai about the stage managed investigation of CBI. It is also alleged that on the basis of the chargesheet, charges were framed against the present accused persons and the trial was started. It is also alleged that statement of court witnesses CW1 Shri K.S. Sinha, CW2 Shri Jiya Lal Arya, CW3 Shri Jagannath Mishra, CW4 Shri Ved Prakash Gupta, CW5 Shri Baleshwar Ram, CW6 Shri Pratap Singh and CW7 Jwala Prasad Singh and their statements clearly show that CBI has stage managed the false case against the accused persons. It is also alleged that it has been established by Shri Arun Shaurie and Shri S.B. Sahai have alleged that CBI has stage managed the whole case. On these allegations, the accused Gopalji has prayed that Shri Arun Kumar Thakur, Shri Arun Kumar Mishra and Shri Shiv Sharma should be summoned for the offence in question. The accused has also prayed to summon them on the basis of statements of CW8, CW9 and DW40 and other records available before the court.
5. Initially, application was filed on 11.05.2012 only by accused Sudevanand Avdhuta to which reply was filed by CBI on CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 7/19 31.05.2012. It is pleaded that CBI has filed the chargesheet against the accused persons as per merit on the basis of evidence collected during the investigation. It is also pleaded that the court witnesses Shri Arun Kumar Thakur and Shri Arun Kumar Mishra have been exhaustively crossexamined by the accused persons and confessions of these two persons cannot be termed as "evidence" under section 319 Cr.P.C. It is also pleaded that the evidence recorded so far does not give any impression that the offence has been committed by Shri Arun Kumar Thakur and Shri Arun Kumar Mishra and the court witnesses have also not stated anything positive against Shri Arun Kumar Thakur and Shri Arun Kumar Mishra. It is also pleaded that the report dated 24.10.1978 of Shri S.B. Sahai has no legal sanctity. The CBI prayed that the application should be dismissed being without merits.
6. Subsequent to filing of two separate applications u/s 319 Cr.P.C by accused Santoshanand and accused Gopalji on 31.05.2012, CBI filed a common reply on 04.07.2012 with regard to all three applications u/s 319 Cr.P.C. It is pleaded that the arrest of Shri Arun Kumar Thakur, Shri Arun Kumar Mishra and Shri Shiv Narain Lal CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 8/19 Vishvakarma by CBI during investigation is not material for disposal of present applications and Shri Shanker Shah has not been examined as a witness during the trial and his evidence is not available for the purpose of section 319 Cr.P.C. It is also pleaded that the statement u/s 164 Cr.P.C. is a part of "investigation" and not of any "inquiry" by the "Magistrate" or "court" or of a "trial". It is also pleaded that Shri Arun Kumar Thakur and Shri Arun Kumar Mishra while examined as court witnesses contradicted with their statements u/s 164 Cr.P.C. and deposed that they were made to give statements under pressure by high ranking police officers and bureaucracy. It is also pleaded that final investigating agency was the CBI. It is also pleaded that the report of DGP (Bihar) DW40 Shri S.B. Sahai Ex. DW40/1 and report of Shri V.M. Tarkunde is not admissible in evidence and Hon'ble Supreme Court while deciding Crl. Appeal No. 174, 175 & 176 of 2012 on 19.01.2012 has observed "We not need go further in this matter, all this was plainly outside the legal framework". It is also pleaded that the trial court cannot go to the political aspect of the matter and has to consider the evidence adduced before it. It is also pleaded that the statement of Shri Arun CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 9/19 Kumar Thakur and Shri Arun Kumar Mishra as court witnesses were completed on 10.10.2006 and 21.01.2008 respectively but the request presently made was not made earlier and on one hand accused Sudevananda Avdhuta, Santoshanand and Ranjan Dwivedi have filed Writ Petition (Criminal) nos. 200 & 205 of 2011 (in the Hon'ble Supreme Court) for quashing of trial proceedings on account of delay and on the other hand, they are requesting de novo trial by summoning Shri Arun Kumar Thakur, Shri Arun Kumar Mishra and Shri Shiv Sharma and purpose of the application is to further delay the trial till the writ petitions are decided by the Hon'ble Supreme Court. Prosecution prayed for dismissal of the applications being without merit.
7. I have heard the Ld. Special Public Prosecutor Shri N.K. Sharma for CBI and Ld. Defence counsels for the applicant/accused persons Shri Anuj Kumar, Shri Arvind Kumar and Shri R.S. Sharma and have very carefully perused the material available on record.
8. To appreciate the rival contentions of the parties, it is necessary to refer the relevant subsection (1) of section 319 of the Code of Criminal Procedure which reads as under : CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 10/19 "(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed."
9. The abovesaid section 319 of the Code of Criminal Procedure has come up for interpretation before the Hon'ble Supreme Court of India on several occasions and it has been recently held by the Hon'ble Supreme Court in Sarabjit Singh and another Vs. State of Punjab and another (2010) 2 SCC (Cri) 141 that there must be convincing evidence on record which would reasonably lead to the conviction of the persons sought to be summoned, and only then an order under section 319 of the Code should be passed by the court. The relevant para no. 21, 22 & 23 of the judgment reads as under : "21. An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 11/19 and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
22. The observation of this Court in MCD and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages.
Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.
23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 12/19 Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied."
10. The Hon'ble Supreme Court of India has also held in Lal Suraj @ Suraj Singh and another Vs. State of Jharkhand (2009) 1 Supreme Court Cases (Cri) 844, that the trial court must form an opinion on the basis of the evidence brought before it that a case has been made out that such person could be tried together with other accused persons (para 11, 12, 20 & 21). The Hon'ble Supreme Court has accepted the appeal on the ground that on the basis of evidence, there was no possibility of conviction against appellants. Further the Hon'ble Supreme Court has also held in Y. Saraba Reddy Vs. Puthur Rami Reddy and another (2007) 2 Supreme Court Cases (Cri) 412 that the word "evidence" in sections 319 of the Code contemplates the evidence of witnesses given in the court. CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 13/19
11. The Ld. Spl. Public Prosecutor has rightly argued that under section 319 of the Code of Criminal Procedure, the "evidence" should have come up during an "inquiry" or "trial" of an offence. The term "inquiry" is defined in section 2(g) of the Code which means every inquiry, other than a trial, conducted under the Code by a Magistrate or the court. It is trite that trial in a criminal case commences once the charge is framed, therefore, the "evidence" which would be admissible for the purpose of section 319 which is recorded during the "inquiry" by a Magistrate or the court. The word "investigation" has not been used in section 319 of the Code and the same is defined in section 2 (h) of the code as "investigation" includes all proceedings under this Code for the collection of evidence conducted by the police officer or by any person (other than the Magistrate) who is authorized by the Magistrate in this behalf. The investigation by the police is conducted from the registration of the case under section 154 the Code of Criminal Procedure and ends with the submission of the final investigation report u/s 173 of the Code of Criminal Procedure in the court and during this investigation, neither the Magistrate nor the court record CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 14/19 any "evidence" which can be used for the purpose of section 319 of the Code. The statement recorded u/s 164 Cr.P.C by the Magistrate is part of investigation as section 164 (1) says that any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial. It has been held by the Hon'ble Supreme Court in Radhakrishnan Vs. Harpreet Kaur (1972) SCC (Criminal) 493 that statement under section 164 Cr.P.C is not substantive evidence and can be utilized only to corroborate or contradict the witness visavis statement made in the court and it can be utilized as a previous statement and nothing more. This Judgment has been relied upon by the Hon'ble Supreme Court in Shri Baijnath Shah Vs. State of Bihar (2010) 3 SCC (Cr.) 222. In view of this law settled by the Apex Court, there is no force in the argument of the Ld. counsels for the applicants/accused persons that this court should consider the statements of Shri Arun Kumar Thakur recorded under section 164 Cr.P.C by the Magistrate. CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 15/19 Moreover, Shri Arun Kumar Thakur while appearing as a court witness (CW8) in this court has contradicted his statement under section 164 Cr.P.C and deposed that the same was made under pressure put by high ranked police officers and bureaucracy. The alleged extra judicial confession allegedly recorded by Jailer Shri Rehman of Samastipur has been denied by Shri Arun Kumar Mishra while appearing as court witness (CW9) and explained the compelling circumstances in which he was made to read the written statement which was taperecorded the Jailer and Jail Doctor and therefore, cannot be considered. For similar reasons, the alleged statement of Shri Shanker Shah recorded under section 164 Cr.P.C. implicating Shri Arun Kumar Thakur and Shri Arun Kumar Mishra is also not relevant and moreover, neither party has examined Shri Shanker Shah as a witness in this court. The alleged confessions by itself cannot be basis of conviction and if there is any substantive evidence before the court, the court may call in aid the confession and use it to lend assurance to other evidence and thus fortify himself in believing what without the aid of the confession it would not be prepared to accept (See Suresh Budharmal Kalani @ CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 16/19 Pappu Kalani Vs. State of Maharashtra 1998 SCC (Cr.) 1625).
12. The Ld. counsels for the applicants/accused persons have vehemently relied upon the report dated 24.10.1978 Ex. DW40/A of Shri S.B. Sahai, the then DIG Cabinet (Vigilance) Department, Bihar, Patna implicating Shri Arun Kumar Thakur, Shri Arun Kumar Mishra, Sheo Narain Sharma and some other persons. The Ld. defence counsels argued that this report is sufficient to indicate that Shri Arun Kumar Thakur and Shri Arun Kumar Mishra have committed the crime and they should be summoned to face the trial. Shri Sahai has been examined as DW40 u/s 284 Cr.P.C. by the Court Commissioner/JMIC, Patna on 14.03.2011 and 15.03.2011 and in his crossexamination, he stated that he does not know under which provision of Cr.P.C., he has conducted the inquiry but that he did it as per the order of Chief Minister of Bihar. He also stated that he personally did not record the statement of any witness since he was conducting the inquiry and he examined the witnesses including Smt. Kameshwari Mishra w/o late Shri L.N. Mishra and prepared rough notes which he did not preserve. He also stated that he interrogated Vikram and examined him after his statement was taperecorded by CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 17/19 the Jailer of Danapur jail in the said jail but he has not formally recorded the statement of Vikram and he did not meet him before his statement was taperecorded and he had not authorised the Jailer and Superintendent Danapur jail to record the statement of Vikram of taperecorder in writing. He also stated that he was not personally present at the time when statement of Vikram was taperecorded and hence cannot say under what circumstances and conditions, his statement was tape recorded. He also stated that during present examination he has not been made to hear the said tape recorded statement and has also not been shown any statement of Vikram.
13. Admittedly, the CBI took over the investigation of this case on 10.01.1975 and filed the chargesheet before the court of CJM, Patna on ................. against the accused persons and subsequent to the filing of the chargesheet, the Chief Minister of the State of Bihar is stated to have ordered on 30.08.1978 to conduct a secret inquiry, which was conducted by Shri S.B. Sahai, DIG, Cabinet (Vigilance) Department, Bihar, Patna. Neither the investigating agency nor the Magistrate or the concerned court has ordered to conduct the inquiry or further investigation. This secret inquiry was also not conducted CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 18/19 under the provisions of Commission of Inquiry Act. It appears that when CBI was the Investigating Agency and chargesheet has been filed by it in the court order for secret enquiry by the Chief Minister or conduct of enquiry by Shri S.B. Sahai appears to be beyond legal framework. Moreover, Shri S.B. Sahai has not recorded the statement of witnesses and prepared the report on the basis of alleged "rough notes" which have not seen light of the day and are stated to have been destroyed by him. Moreover, in a case R. Venkatkrishnan Vs. Central Bureau of Investigation (2000) 1 SCC Crl. 164, the allegations against the appellant and late Harshad Mehta was that some transactions were carried out in connivance with the officials of financial institutions, bank illegally as a result whereof late Harshad Mehta was allowed to obtain a sum of Rs. 40 crores which was actually "call money" given as a loan by National Housing Bank to UCO Bank and similar illegal transactions relating to government securities and other nongovernmental securities came to the notice of the Central Government and a committee known as "Jankiraman Committee" was constituted under the Chairmanship of Shri R. Jankiraman, the then Deputy Governor CBI Vs. Santoshanand etc. SC No. 1/2006 RC No. 1/75 19/19 General of RBI and committee submitted its report between May, 1992 and April, 1993 and on the basis of the report, Special Courts were constituted under Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 and the Hon'ble Supreme Court of India in para 67 & 68 of its judgment has held that the Jankiraman report is not admissible in evidence and the report in terms of the provisions of the Evidence Act, 1978 is not a judgment and the report may facilitate investigation but cannot form basis of conviction and sentencing of the accused and for the said purpose the report was wholly inadmissible in evidence.
Announced in open Court
on 19.07.12 (Vinod Goel)
Addl. Sessions Judge,
(East District),
KKD Courts, Delhi.
CBI Vs. Santoshanand etc.
SC No. 1/2006
RC No. 1/75