Delhi District Court
Mr. Arun Kumar Sinha (On Complete vs Mr. Rabinder Singh @ Robbi on 12 November, 2010
1
IN THE COURT OF MS. SANTOSH SNEHI MANN
ADDITIONAL SESSIONS JUDGE (CENTRAL)
TIS HAZARI COURTS, DELHI
Criminal Revision No. : 86/2010
Mr. Arun Kumar Sinha (On complete
rest for treatment of spinal disorder)
Through Mr. Pavan Kumar Rai,
Deputy Secretary, Cabinet Secretariat,
Govt. of India, as authorised. ..... Petitioner
Versus
1. Mr. Rabinder Singh @ Robbi
@ Rajpal Prasad Sharma
S/o Late Mr. Amrik Singh,
Former Joint Secretary (R & AW),
R/o C-480, Defence Colony, New Delhi.
(Absconding, presently believed to be
residing at 761, Keithley Drive,
Great Falls, Virginia, USA). ..... Respondent/
Accused No. 1
2. Smt. Parminder Kaur @ Pammi
@ Deepa Kumar Sharma
W/o Accused No. 1
R/o C-480, Defence Colony, New Delhi.
(Absconding, presently believed to be
residing at 761, Keithley Drive,
Great Falls, Virginia, USA). ..... Respondent/
Accused No. 2
Date of filing of Criminal Revision : 07.10.2010
Criminal Revision No. 86/2010 Arun Kumar Sinha V/s Rabinder Singh & Others
2
Date of conclusion of arguments : 11.11.2010
Date of Order : 12.11.2010
Petition under Section 397/399 of the
Code of Criminal Procedure, 1973, for
setting aside/quashing of order dated
06.07.2010 passed by Smt. Kaveri
Baweja, Chief Metropolitan Magistrate,
Tis Hazari Courts, Delhi in CC No.
255/1/ 2006-Inquiry No. 1/2005-SB/DLI.
ORDER :
Petitioner, an Officer of Government of India, is aggrieved by the order dated 06.07.2010 passed by the Trial Court in Criminal Complaint No. 255/1 under Section 3(1)(c), 5(1)(c) and (d), 5(2), 6(2)(a) and 9 of the Official Secrets Act, 1923 read with Section 120-B of the IPC and Section 12(1)(a) read with Section 3 of the Passports Act, 1967 read with Section 120-B of IPC and other offences, titled "Arun Kumar Sinha V/s Rabinder Singh & Another", whereby submission of Ld. Special Public Prosecutor for committal of the case to the Sessions Court has been rejected and file has been consigned to Record Room with direction for revival of the case in the event of arrest of the accused persons.
2. I have heard Mr. A. K. Dutta, Special Public Prosecutor for the petitioner and gone through the Trial Court Criminal Revision No. 86/2010 Arun Kumar Sinha V/s Rabinder Singh & Others 3 Record.
3. A Criminal Complaint under Section 3(1)(c), 5(1)(c) and (d), 5(2), 6(2)(a) and 9 of the Official Secrets Act, 1923 read with Section 120-B of the IPC and Section 12(1)(a) read with Section 3 of the Passports Act, 1967 read with Section 120-B of IPC and other offences was filed against two accused persons namely Rabinder Singh and Parminder Kaur in the Court of Chief Metropolitan Magistrate, Delhi on 31.10.2006. The Court took cognizance on the complaint on 13.12.2006 and Open Non-Bailable Warrants were issued against both the accused persons by the Court on being appraised of the fact that they have been declared Proclaimed Offenders by another Court, where they were wanted to face the trial in a case under the National Security Act. The matter remained pending awaiting the execution report of the warrants till 12.03.2008 on which date the Trial Court was informed by the Special Public Prosecutor that Open Non- Bailable Warrants could not be executed despite of efforts to execute through Interpol by issuing of Red Corner Notices and through Diplomatic Channels of US Authorities. On the same day, an application was filed by the Complainant requesting the Trial Court to declare the accused persons as Proclaimed Offenders and to commence the proceedings Criminal Revision No. 86/2010 Arun Kumar Sinha V/s Rabinder Singh & Others 4 under Section 299 of Code of Criminal Procedure (hereinafter referred as "Cr. P. C."). The Trial Court observed that in view of the scheme of law provided under Section 82/83 Cr.P.C., a separate proclamation is required in this case also. Having made these observations the Trial Court issued proclamation under Section 82 Cr.P.C. against the accused persons. The processes were issued accordingly and Trial Court observed in the proceedings dated 29.01.2009 putting its satisfaction about execution of the processes against the accused persons under Section 82 Cr. P. C. and declared both the accused persons as Proclaimed Offenders. Simultaneously, process under Section 82 Cr. P. C. was issued against both the accused persons. Report on these processes was considered by the Trial Court on 04.03.2009, according to which properties of the accused had already been attached in proceedings under NSA Act. On the same day Special Public Prosecutor representing the CBI informed the Court that an application for evidence under Section 299 Cr. P. C. and for in-Camera proceedings under the National Security Act is pending disposal. The said application dated 12.03.2008 is on record, which was allowed by the Trial Court on 04.03.2009 after considering the submissions of the Special Public Prosecutor for CBI and the matter was adjourned for Criminal Revision No. 86/2010 Arun Kumar Sinha V/s Rabinder Singh & Others 5 prosecution evidence under Section 299 Cr. P. C. for 06.07.2009 with direction that proceedings be conducted in- Camera.
4. Pursuant to this order, two witnesses were examined under Section 299 Cr. P. C. as CW-1 Sh. N. K. Sharma, Joint Secretary, Cabinet Secretariat, New Delhi and CW-2 Sh. Arun Kumar Sinha, Joint Secretary, Cabinet Secretariat, Government of India, New Delhi. It was at that stage when a request was made by the Special Public Prosecutor for committal of the case to the Sessions Court as the case was exclusively triable by the Court of Sessions, which was rejected by the Trial Court on the ground that since Section 207/208 Cr. P. C. could not be complied because the accused are absconding, the matter cannot be committed.
5. It is submitted by Special Public Prosecutor for the petitioner that under Section 193 & 209 of the Cr. P. C., it is the committal of the case and not of the accused and thus error has been committed by the Trial Court by rejecting the submission for committal of the case. Special Public Prosecutor for petitioner referred to various judgments of the Apex Court and different High Courts: (i) Allahabad High Court in "Kamlesh Kumar Dixit V/s State, 1981 Crl. L J NOC 92"; (ii) Rajasthan High Court in "Vaman Narayan Criminal Revision No. 86/2010 Arun Kumar Sinha V/s Rabinder Singh & Others 6 Ghiya V/s State of Rajasthan, 2004(3) RCR (Criminal) at Page 589", relying on the judgment of Punjab & Haryana High Court in "Bhim Singh & Another V/s State of Haryana, 1992 Cri. L. J. 3135"; (iii) Jammu & Kashmir High Court in "State V/s Man Mohan Singh reported in 1984 Kash. L J at Page 271"; (iv) Jharkhand High Court in "Gagan Thakur V/s State of Jharkhand & Others, 2004 Crl. L J 1910"; (v) Calcutta High Court in Kamal Krishna De's case reported in 1977 Cr. L. J. 1492 (DB); (vi) Supreme Court of India in "Naresh Kumar Yadav V/s Ravindra Kumar & Others, 2007(4) RCR (Criminal) at Page 875";
(vii) Punjab & Haryana High Court in "State V/s Kapur Singh & Others, LXXXI-1979 Punjab Law Reporter at Page 161" and (viii) Delhi High Court in "Kamal Kishore V/s S. D. Mathur, 1996(2) CC Cases 174 (HC)".
6. I have carefully considered the rival submissions put-forth by Special Public Prosecutor for the petitioner in the light of Trial Court record.
7. There is no dispute about factual matrix of the case and there is no dispute about proceedings conducted by the Trial Court till the case was consigned to Record Room and adjourned sine-die vide impugned order dated 06.07.2010.
Criminal Revision No. 86/2010 Arun Kumar Sinha V/s Rabinder Singh & Others 7
8. The main arguments put-forth by Special Public Prosecutor for the petitioner is that since the case is exclusively triable by the Court of Sessions, the Trial Court is bound to commit the case so that witnesses can be examined under Section 299 Cr. P. C. by the Sessions Court, which is competent Court to hold the trial. It is further submitted that since there is no likelihood of the absconding accused to be apprehended in the near future, if the witnesses are not examined, material evidence is likely to be lost due to passage of time which shall defeat the ends of justice.
9. Chapter XXIII of the Cr. P. C. deals with the mode of taking and recording evidence by the Court during enquiries and trials besides commissions for examination of witnesses. Section 299 Cr. P. C. of this Chapter of the Cr. P. C. provide for recording of evidence by the Court in the absence of the accused. According to Section 299(1) Cr. P. C. if it is proved that an accused person has absconded and there is no immediate prospect of his arrest, the Court competent to try or commit for trial, such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution and record their depositions, which on arrest of such person can be given in evidence against him in the enquiry or trial, of the offence with Criminal Revision No. 86/2010 Arun Kumar Sinha V/s Rabinder Singh & Others 8 which he is charged if the deponents are dead or incapable of giving evidence or cannot be found or their presence cannot be procured without delay, expense or inconvenience which would be unreasonable in the circumstances of the case.
10. Thus, section 299 Cr. P. C. is very clear on the aspect that the witnesses can be examined in the absence of the accused by the Court which is either competent to try the case or which is competent to commit the case for trial. Therefore, the Trial Court, being the Committal Court, is competent to examine the witnesses under Section 299 Cr. P. C. It is very surprising to note that two witnesses were examined by the Trial Court under Section 299 Cr. P. C. on the application of the petitioner as CW-1 and CW-2 and the petitioner has not been stopped from examining further witnesses.
11. I have carefully gone through the judgment referred by Ld. Special Public Prosecutor for the petitioner. None of the judgments referred say that the witnesses cannot be examined under Section 299 Cr. P. C. by the Committal Court in a session triable case if accused is absconding. Situation would be different if some of the accused are appearing and some are absent, in which case the Committal Court would be bound to commit the case which is exclusively triable by the Criminal Revision No. 86/2010 Arun Kumar Sinha V/s Rabinder Singh & Others 9 Court of Sessions.
12. In view of the statutory provision under Section 299 Cr. P. C., as discussed above, I find no illegality or irregularity in the impugned order dated 06.07.2010 passed by the Trial Court. The revision petition is dismissed with liberty to the petitioner to examine the remaining witnesses under Section 299 Cr. P. C. before the Committal Court.
13. Trial Court Record be sent back alongwith a copy of this order.
14. File be consigned to Record Room.
Announced in the open Court (Santosh Snehi Mann) th on 12 November, 2010 Addl. Sessions Judge (Central) Tis Hazari Courts, Delhi Criminal Revision No. 86/2010 Arun Kumar Sinha V/s Rabinder Singh & Others