Delhi High Court
National Agricultural Coop Marketing ... vs Earthtech Enterprises Ltd & Ors on 9 May, 2017
Author: Manmohan
Bench: Manmohan
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 875/2009
NATIONAL AGRICULTURAL COOP
MARKETING FED OF INDIA LTD ..... Petitioner
Through Mr.T.K.Ganju, Sr.Advocate with
Mrs.Rajdipa Behura, Mr.Manik
Ahluwalia, Mr.Abhisek Bhardwaj,
Ms.Garima Singh, Mr.Philomon Kant
and Ms.Kriti Handa, Advocates.
versus
EARTHTECH ENTERPRISES LTD & ORS ..... Respondents
Through Mr.Sanjay Diwarkar, Advocate for R-
1.
Mr.Sumit Chandra with Ms.Parvinder
Kuatra and Mr.Dinesh Sharma,
Advocates for R-2.
Mr.M.Dutta, Advocate for R-3.
Mr.Sanjeev Bhandari, SPP for CBI
with Inspector M.K.Singh.
% Date of Decision: 09th May, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral) C.M.No.9906/2017
1. Present application has been filed by the respondent no. 2- applicant seeking discharge from compulsion from answering the CONT.CAS(C) 875/2009 Page 1 of 6 questionnaire prepared by the petitioner-NAFED on the ground that it infringes the petitioner's fundamental right guaranteed under Article 20(3) read with Article 21 of the Constitution of India.
2. Though the counsel for the applicant has handed over a brief description of Merchanting Trade Transaction (MTT) which is taken on record, yet he submits that as the applicant is already an accused in a criminal trial, he has a right of silence. According to him, asking the respondent no. 2 to answer the questionnaire prepared by NAFED or any question put by this Court, would be violative of the Constitution as the same prohibits self-incrimination.
3. Per contra, learned counsel for petitioner states that just because the applicant has been arrayed as a respondent in a contempt petition does not mean that he is an accused who is entitled to protection under Article 20(3) of the Constitution of India. In support of his submission, he relies upon the judgment of the Supreme Court in Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat and others, AIR 1991 SC 2176 and judgment of the Allahabad High Court in State of U.P. Vs. Deg Raj Singh and Ors., MANU/UP/0861/1982.
4. Having heard learned counsel for parties, this Court is of the view that it is essential to analyse Article 20(3) of the Constitution of India. The relevant portion of the said Article reads as under:-
"20. Protection in respect of conviction for offences -
xxxx xxxx xxxx xxxx CONT.CAS(C) 875/2009 Page 2 of 6 (3) No person accused of any offence shall be compelled to be a witness against himself."
5. To attract Article 20 (3) of the Constitution, the following ingredients have to be fulfilled, namely:-
(a) There must be an accused person.
(b) He must have been compelled.
(c) The compulsion must be to be a witness.
(d) Against himself.
6. The Apex Court in Nandini Satpathy Vs. P.L. Dani & Another, (1978) 2 SCC 424 has held as under:-
"57. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation -- not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read "compelled testimony" as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like -- not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly CONT.CAS(C) 875/2009 Page 3 of 6 suggestive of guilt, it becomes "compelled testimony", violative of Article 20(3).
xxxx xxxx xxxx xxxx
59. We have explained elaborately and summed up, in substance, what is self-incrimination or tendency to expose oneself to a criminal charge. It is less than 'relevant' and more than 'confessional'. Irrelevance is impermissible but relevance is licit but when relevant questions are loaded with guilty inference in the event of an answer being supplied, the tendency to incriminate springs into existence. We" hold further that the accused person cannot be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation underway is not with reference to that. We have already explained that in determining the incriminatory character of an answer the accused is entitled to consider-and the Court while adjudging will take note of the setting, the totality of circumstances, the equation, personal and social, which have a bearing on making an answer substantially innocent but in effect guilty in import. However, fanciful claims, unreasonable apprehensions and vague possibilities cannot be the hiding ground for an accused person. He is bound to answer where there is no clear tendency to criminate."
7. Since in the present case the applicant has been arrayed not only as a respondent in the contempt case but also as an accused in criminal proceedings filed by the CBI, this Court is of the view that the applicant is entitled to protection under Article 20(3) of the Constitution of India.
CONT.CAS(C) 875/2009 Page 4 of 68. Consequently, the examination of respondent No.2 is deferred till the judgment in the charge-sheet filed by the CBI is pronounced.
9. However, as this Court is informed that despite filing of RC Nos. RC BD12006 E009 dated 20.11.2006 and EOU-I 2007 E 0002 dated 19.12.2007 nearly ten-eleven years back and filing of charge- sheets nearly eight years back, charges have still not been framed even when there is no stay of the criminal trial, this Court directs the concerned ACMM to conclude the said trial as expeditiously as possible, preferably within one and a half years from today.
10. With the aforesaid observations and direction, the present application stands disposed of.
C.M.No.16214/2014Keeping in view the order dated 30th September, 2015, the present application is not maintainable. Accordingly, the same is dismissed.
Cont.Cas(C) No.875/2009Today learned counsel for respondent no.2 has handed over a demand draft of Rs.1 lakh dated 08th May, 2017 drawn on Federal Bank to learned counsel for the petitioner in lieu of the cost imposed by this Court on 28th February, 2017.
At this stage, this Court is informed that CBI has filed a Crl.M.C.No.1180/2015. This Court records the undertaking of all the counsel that none of the parties would take any adjournment in the said proceeding.
List the matter for compliance as well as to await the judgment of the trial court on 18th December, 2017.
CONT.CAS(C) 875/2009 Page 5 of 6Personal appearance of the respondents is exempted till further order.
Order dasti under the signature of Court Master.
MANMOHAN, J MAY 09, 2017 KA CONT.CAS(C) 875/2009 Page 6 of 6