Delhi District Court
Criminal Revision No : 80/2011, Anil ... vs . State , Id No:02401R0436672011 on 14 December, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
COMMON ORDER IN
CRIMINAL REVISION NO : 80/2011, ANIL DUREJA vs. STATE , ID NO:02401R0436672011
CRIMINAL REVISION NO : 81/2011, GAJENDER KUMAR vs. STATE , ID NO:02401R0436742011
CRIMINAL REVISION NO : 82/2011, RAVI SHANKAR vs. STATE , ID NO: 02401R0447782011
CRIMINAL REVISION NO : 83/2011, RAJIV PAHUJA vs. STATE , ID NO: 02401R0442192011
CRIMINAL REVISION NO : 84/2011, HARI KISHAN vs. STATE , ID NO: 02401R0442172011
FIR NO: 46/2006
PS: SPL. CELL
U/s 384/506/120 B IPC
In the Matters of:
Anil Dureja S/o Sh.D.C.Dureja
Inspector, Delhi Police
R/o C22G, Delhi Police Apartment,
Mayur Vihar, PhaseI
New Delhi. .........Revisionist
Vs.
State ..........Respondent
Gajendra Kumar S/o Sh. Katar Singh Inspector, Delhi Police nd R/o G4, 2 Floor, Vijay Nagar, Delhi. .........Revisionist Vs. State ..........Respondent Page1/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 2 Ravi Shanker S/o Late Sh. Gangadhar Addl. Dy. Commissioner of Police R/o House No.1637, Sector 23, Gurgaon ..............Revisionist Vs. State .............Respondent Rajive Pahuja S/o Late Sh. S.P.Pahuja R/o IA/59B, PhaseI, Ashok Vihar, Delhi. ..........Revisionist Vs. State ..........Respondent HC Hari Kishan S/o Late Sh. Pyare Lal R/o B3/18, Sector15, Rohini, Delhi89. ..........Revisionist Vs. State ...........Respondent Revision petition against deprecatory remarks and directions contained in Judgment dated 13.09.2011 Date of institution : 20.09.2011 ( Revisions of Anil Dureja & Gajendra Kumar ) 22.09.2011 (Revisions of Ravi Shankar, Rajive Pahuja and Hari Kishan ) Date of final hearing : 14.12.2011 Date of final order : 14.12.2011 Page2/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 3 ORDER ON REVISION:
1. By this common order I shall dispose of a bunch of five revision petitions preferred against a portion of judgment of acquittal passed by Ld. CMM on 13.9.2011 under FIR No.46/06 PS Spl. Cell U/s 384/506/120B IPC. In that judgment all the five accused facing trial were acquitted after all the 10 public witnesses turned hostile & did not support the Prosecution Case. In the impugned portion of the judgment , certain deprecatory remark have been passed against the revisionist police officers / complainant and direction has been issued to Commissioner of Police, Delhi to register an FIR against all the five revisionist for commission of offences punishable U/s 166/167/192/193/195/195A/196/201/204/211/217/218/220/221/384/389 IPC r/w 120B IPC and Section 7, 8 & 13 of Prevention of Corruption Act'1988 and also under Rule 22.50 of Punjab Police Rules.
2. I have heard arguments of Ld. Counsels for revisionists namely Ms. Geeta Luthra, Sr. Advocate along with Sh. Nishi Ranjan Singh, Advocate for revisionist Ravi Shankar, Addl. DCP and Inspector Gajender Kumar, Ld. Counsel Sh.Sidharth Aggarwal and Sh. Santosh Pandey Advocates for Inspector Anil Dureja, Ld. Counsel Sh. Raj Shekhar Rao Advocate for Page3/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 4 HC Hari Kishan, Ld. Counsel Ms. Seema Gulati Advocate with Ld. Counsel Sh. S.P.Sharma Advocate for complainant Rajeev Pahuja. I have also heard arguments of Ld. Addl. PP Sh. V.K.Negi for State . I have also heard Sh. Aman Lekhi , Sr. Advocate with Ld. Counsel Sh.
Murari Tiwari Advocate and Ld. Counsel Sh. Shakti Narayan Advocate on behalf of acquitted accused persons Parveen Kishan Chug and Partap Singh. I have also carefully perused the revision file and Trial Court Record apart from perusing complaint case decided file titled "Om Parkash Vs. Rajeev Pahuja & Ors." CC No.205/108 decided / dismissed on 21.5.04, Goshwara No. 152.
3. Brief facts necessary for disposal of these revisions are that the ball of criminal law was set in motion when a typed complaint dated 22.1.2006, Ex.PW2/A was received at Office of Joint CP, Spl. Cell on 24.1.2006. This complaint was made by revisionist Rajeev Pahuja on a letter pad of M/s North Delhi Cable Network Pvt. Ltd. As per this complaint revisionist / complainant mentioned that he distributes M/s City Cable Network feed from Kapil Vihar, Pitam Pura. One person runs cable network under the name M/s Shalimar Cable in association with some rowdy elements and Page4/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 5 they threatens his employees. Two of those miscreants were named as Pawan and Sanjay Majri who are stated to be history sheeted criminals .
They were alleged to be involved in wire cutting qua which several complaints were made in local police station. As per this complaint on 17.1.2006 , boys of Shalimar Cable cut their cable wires at 11.00pm and when complainant's employees went to repair the same, they were beaten up by Sanjay Majri, Pawan and others and were threatened that they would kill the complainant and would burn the control room. This complaint was marked by the then Joint CP Sh.Karnail Singh to DCP Sh. Alok Kumar, Spl.
Cell on 10.4.2006 and on the same date it was marked by DCP to revisionist ACP Ravi Shankar Spl. Cell (North) for necessary action. Vide his endorsement dated 10.4.2006 ACP marked it to revisionist Inspector Anil Dureja who in turn marked it to revisionist SI Gajender Singh. The SI conducted a preliminary enquiry which concluded into the report dated 12.5.2006 wherein he recommended and sought approval for registration of FIR on the basis of above complaint observing therein that Sanjay Majri is a History Sheeter involved in several criminal cases of Murder, Robbery , Extortion etc. He also mentioned in the report that one Parveen Chug is Page5/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 6 owner of Shalimar Cable Network . Sanjay Majri and others are terrorizing and threatening cable operators and public and are collecting money. This report was forwarded back to the top hierarchy of Spl. Cell finally on 15.5.06 lodging of FIR was recommended by Joint CP, Spl. Cell.
4. This led to lodging of FIR 46/06 U/s 384/506/120B on the basis of text of complaint Ex.PW2/A and ruqqa Ex. PW20/A. The investigation was taken over by SI Gajender during which he recorded statements of witnesses / victims of extortion namely Ajay Narula, supplementary statement of Rajive Pahuja, Rajneesh Kumar, Sanjeev Pahwa and Roshan Lal. In their statements, these witnesses made specific allegations against Parveen Kishan Chug, Sanjay Saipur, Om Parkash, Partap, Sanjay Majri and Pawan mentioning therein that these accused used to threaten them for extorting money under fear of dire consequences. In pursuance thereof one of the witnesses / victims Roshan Lal Goel stated to the police that he was demanded Rs.46,000/ or else threatened with death. It was followed by cutting of his cable wires and he had to pay protection money of Rs.10,000/ per month in January and February'2006 and was further demanded Rs.30,000/ per month from March'2006 onwards.
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5. Consequently in the light of above material police arrested accused Parveen Kishan Chug, Partap Singh, Pawan Kumar, Sanjay Majri, Sanjay Saipur and Om Parkash on 1.7.06. Their disclosure statements were recorded but no recovery could be affected from them. Thereafter on 11.7.2006, Sanjay Majri and Pawan @ Sonu were also arrested. During the investigation statements of four PWs were recorded U/s 164 Cr.P.C.
namely Rajneesh Kumar Ex.PW1/B, Roshan Lal Ex.PW1/C, Ajay Narula Ex.PW1/E and Sanjeev Pahwa Ex.PW1/G. In their 164 Cr.P.C. statements as well , the victims deposed on oath that they are being threatened by the accused persons for extorting undue money. Victim / witness Rajneesh Kumar told Ld. MM that he paid Rs.48,000/ to Parveen K. Chug under threat of death. Similar statement was made by victim Roshan Lal Goel , PW victim Ajay Narula stated on oath that he was threatened and his control room gazettes like DVD, monitors etc were ransacked and he was demanded Rs.20,000/ per month by the accused persons. PW Sanjeev Pahwa stated that he was initially demanded Rs.30,000/ which was later raised to Rs. 1 lac. Necessary documents were collected during investigation. Four of the accused were admitted to bail by Sessions while Page7/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 8 two were enlarged on bail by Ld. Magistrate.
6. Upon conclusion of investigation, charge sheet U/s 384/506/120B IPC was filed before the Court of Ld. CMM on 22.8.06 on which date all the six accused were summoned by the Court. During the course of trial , charge was framed against all the accused persons on 8.6.2010 under even offences to which they all pleaded not guilty.
7. The order of charge was challenged only by one of the six accused namely Sanjay Majri before Ld. Sessions Court, which led to order of his discharge dated23.2.2011.
8. During the pendency of the trial ,one of the accused Om Parkash filed a cross complaint CC No.205/08 against complainant Rajive Pahuja and revisionist Inspector Anil Dureja and SI Gajender for commission of offences punishable U/s 193/201/342/384/506/34 IPC . He also moved an application U/s 156 (3) Cr.P.C. He made allegations against the complainant and police officials that complainant Rajive Pahuja was his business partner and after the dissolution of the partnership firm Rajive Pahuja and their two other partners were supposed to pay him money but instead of abiding by the commitment, a false FIR was lodged against him.
Page8/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 9 Detailed Action Taken Report was called in this matter from the then Joint CP Sh.Karnail Singh, Spl. Cell. After affording hearing the Section 156(3) Cr.P.C. application of Om Parkash was dismissed by Ld. CMM vide detailed order dated 6.7.2007 and matter was posted for CE , after taking of cognizance. This order of Ld. CMM was challenged by Om Parkash before Ld. Sessions Court vide Crl. Revision No.54/07 but the same was dismissed as withdrawn on 5.3.2008. Subsequently it was followed by dismissal and withdrawal of the criminal complaint as well wherein Om Parkash stated on oath that he has amicably settled the matter with the Rajiv Pahuja & others. In that complaint, Parveen Kishan Chug was shown as a witness. The complaint was primarily filed on the basis of an Audio Compact Disc (CD) it was claimed to be recording of a conversation between revisionist HC Hari Kishan , now acquitted accused Parveen Kishan Chug and accused Pratap Singh. As per the text of the withdrawn complaint , Rs.7 lacs were extorted from Om Parkash by Rajiv Pahuja and Police Officials and transcript of the conversation filed on record was relied for substantiating the accusation.
9. Meanwhile now acquitted accused persons launched 5 different Page9/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 10 prosecutions against the complainant Rajive Pahuja and other PWs of the trial in hand out of which two have already ended into filing of cancellation report and acquittal and in remaining three, no charge sheet has been reportedly filed till date. In one such case acquitted accused Partap Singh got registered Section 307/34 IPC FIR against complainant / revisionist Rajive Pahuja and PW Ajay Narula at Saharanpur , UP but this matter resulted into filing of cancellation report followed by acquittal by the Court on 18.7.2010. In second such case accused persons got lodged FIR 207/09 U/s 307/34 IPC at PS Prashant Vihar which is pending investigation.
10.Third such case is FIR No.445/09 U/s 365/323/506/120B/34 IPC Ps Parshant Vihar which is pending investigation.
11.Fourth such case is FIR No.142/09 U/s 307/341 IPC & 27Arms Act PS Khanjhawla which is pending investigation.
12.Fifth such case is FIR No.812/07 U/s 376/506/120B IPC PS Loni (UP) which already ended up into acquittal.
13.Also victim PW Rajneesh Kumar Bhatnagar was threatened and he was constrained to file a Criminal Complaint against accused Sanjay Sahipur Page10/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 11 and others. On this complaint, Ld. MM directed registration of FIR U/s 156 (3) Cr.P.C. He requested the Court of Ld. CMM for security and also moved Court of Ld. ASJ for cancellation of bail of accused persons.
However, before the FIR could be registered , a Criminal MC 868/08 titled Sanjay & Others vs State was filed before Hon'ble Delhi High Court wherein accused Sanjay , Parveen Kr. Chug and Partap were directed to file a bond and undertaking before Ld. Trial Court that they would not threaten the witnesses of this case.
14.Also before alleged history sheeter accused Sanjay Majri was discharged by Ld. Sessions Court, complainant Rajive Pahuja is said to have been constrained by Sanjay Majri to file a Crl. MC 3414/08 before Hon'ble High Court under 482 Cr.P.C. seeking quashing of FIR and the chargesheet qua Sanjay Majri.
15.During the pendency of that petition, remaining accused persons namely Parveen Chug, Partap, Sanjay Saipur, Om Parkash & Pawan @ Sonu are said to have coerced victim witness Ajay Narula and three other victim witnesses namely Roshan Lal Goel , Rajive Chawla and Sanjeev Pahwa to file another Crl. MC 3185/09 under 482 Cr.P.C. on the basis purported Page11/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 12 settlement dated 11.5.09. At that juncture when both the above petitions were pending , one victim PW Rajneesh Kumar Bhatnagar was constrained to file an affidavit in Crl.M No.3414/08 to the effect that he has no grievance against the accused persons. However, suspecting something fishy therein , Hon'ble High Court ordered for verification of the affidavit wherein it was revealed that victim PW Rajneesh Kumar Bhatnagar was coerced to sign the affidavit. This resulted in dismissal as withdrawn of Crl.MC petition 3414/08 on 15.2.2010 followed by dismissal as withdrawn of second petition Crl.MC 3185/09 on 24.5.2010.
16.In the matter in hand after the framing of the charge before the Trial Court, 20 prosecution witnesses were examined including 10 public witnesses.
All the public witnesses cited in this charge sheet namely complainant PW Rajive Pahuja, PW3 Roshan Lal Goel, PW4 Rajive Chawla, PW5 Manjeet Singh, PW6 Rupesh Kumar, PW7 Vipin Kumar , PW8 Sanjeev Pawha, PW9 Rajneesh Kumar Bhatnagar, PW10 Ajay Narula and PW11 Mahinder Sethi, turned hostile. They neither named either of the accused persons in their deposition in the Court nor identified either of the 5 accused persons who were facing trial.
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17.Even though remaining police witnesses were formal in nature and nothing incriminating was recovered from either of the accused, interestingly Ld. CMM continued with the trial & proceeded to record 313 Cr.P.C. statement of the accused persons. In the absence of any incriminating evidence, in their 313 Cr.P.C statements , recorded by Ld. CMM, accused were only put formal investigation documents and resiled 164 Cr.P.C. statements which do not form incriminating evidence as far as charges framed against the accused persons are concerned. This opportunity was availed by the accused to make accusation of collusion between the complainant Rajive Pahuja and police officials. Ld. CMM further proceeded to record defence evidence as well wherein as many as 10 DWs were examined which include cousins of accused Sanjay Sahipur and associates of accused persons apart from some formal witnesses. After conclusion of DE , both the sides were heard followed by passing of judgment of acquittal dated 13.9.2011 , portion of which has been impugned in the revisions in hand.
18.As far as the merits of the judgment of acquittal is concerned, same has neither been challenged by the state nor by complainant Rajive Pahuja.
19.In the matter in hand a prayer has been made only to set aside a small Page13/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 14 portion of the judgment of acquittal dated 13.9.2011 i.e. impugned paragraphs 65 to 76 and for expunging the deprecatory remarks contained therein against the revisionists. For ready reference the above paragraphs of the judgment of acquittal 13.9.2011 are reproduced hereinunder:
65. Learned defence counsel have made a strong prayer that complainant Rajive Pahuja, IO/SI Gajender, Inspector Anil Dureja, ACP Ravi Shankar and HC Hari Kishan are clearly guilty of committing offences punishable U/s 166, 167, 192, 193, 195, 195A, 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 CCD of conversation between PW15, accused Pratap and accused Praveen Chug is to be considered than 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 Vs. 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 Vs. Powell Diller Steam Coal Company Limited" . I have gone through the law laid 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 Page14/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 15 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 salutoryone 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 as 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 event, human conduct, public or private business vis a-vis 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. DilloDevi, 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 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 can not 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 as under:-
a) 154 (2008) DLT 242, titled as "Tej
Singh Vs. State of 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 C77),
titled as , "Dasrathi Mondal & Ors. V/s.
Hari Dass & Anr." ;
d) AIR 1930 Patna 550, titled as ,"Banti
Pande V/s Emperor" and ;
e) 5 Cal. 282, titled as, "Ashrof Ali &
Page15/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 16 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 canceled, sureties stand discharged. Endorsement (s), if any, on the documents of sureties or accused persons be canceled 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 can not 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, leveled false accusations against the accused persons at the instance of complainant Shri Rajeev Pahuja. The IO went on 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 the in MCOCA case (as is apparent from the perusal of complaints made by the accused persons on 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 Shankar, 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.
20.As far as the revisionists are concerned, it would be appropriate to have a glance at the role if any played by each one of them in this matter. The first revisionist in CR No. 80/11 is Insp. Ravinder Dureja , who had practically no role to play in the investigation of the whole case and has not even been cited as a witness in the charge sheet. His role is limited to Page16/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 17 receipt of an endorsed complaint from his ACP and forwarding of the same to SI Gajender. Also he forwarded the preliminary report of SI Gajender to his Seniors. The final decision of lodging of the FIR was apparently not taken by him.
21.As far as second revisionist SI Gajender Kumar in Cr.No.81/11 is concerned, he is IO of this case who in compliance of direction of his Seniors, right from Joint CP to Inspector, conducted a preliminary enquiry and submitted a report for necessary directions. He was directed by his Senior to lodge an FIR. He complied the order . He took all the investigational steps like recording of statements of witnesses, arrest of accused, seizure of documents etc. before filing the chargesheet which was duly forwarded by ACP through Directorate of Prosecution.
22.Third revisionist is Addl. DCP Ravi Shankar, the then ACP in CR No. 82/11. He had practically no role to play in the investigation of the whole case and has not even been cited as a witness in the charge sheet. His role is limited to receipt an endorsed complaint from his DCP and forwarding of the same to Inspector Anil Dureja . Also he forwarded the Page17/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 18 preliminary report of SI Gajender, received by him through Inspector Anil Dureja , to his Seniors. The final decision of lodging of the FIR was apparently not taken by him.
23.Fourth revisionist is complainant Rajive Pahuja in CR No.83/11. He is author of complaint Ex.PW2/A which led to registration of FIR in hand . In his supplementary statement as well he had maintained that all the accused persons were in cahoots with each other in threatening and extorting illegal money from him and his business associates. As detailed supra, his complaint was supported by other 9 public persons during investigation as well as during recording of 164 Cr.P.C. statements before a Magistrate.
However, all the public witnesses including him turned hostile during their deposition in the Court apparently under an out of Court settlement.
24.Fifth revisionist is HC Hari Kishan in CR No.84/11. He had joined the investigation only on one day i.e. on 1.7.2006 when four of the initial six accused persons were arrested.
25.At the onset I would deal with the issue of maintainability of the revisions in hand as raised by Ld. Counsel for acquitted accused. Section 397 (2) Cr.P.C. specifically bars that no revision shall lie against an interlocutory Page18/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 19 order .
26.In the case titled Amarnath & Ors Vs. State of Haryana, AIR 1977 SC 2185 , while discussing the term interlocutory order, Hon'ble Supreme Court ruled that "The term "interlocutory order" in Section 397(2) has been used in a restricted sense and not in any broad orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused , or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against the order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail , calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2). But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial can not be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."
27.In another case titled Central Bank of India Vs. Gokal Chand AIR 1967 SC 799, Hon'ble Supreme Court ruled that:
"............ orders regarding the summoning of witnesses, discovery, production and inspection of documents, Page19/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 20 issue of commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document on the relevancy of a question . All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings. They regulate the procedure only and do not affect any right or liability of the parties."
28.In the matter in hand as well the impugned order directing the CP, Delhi to register FIR against a battery of police officials and the complainant does substantially affect their valuable rights and is not a routine procedural order in a trial.
29.The impugned portion of the judgment can not be by stretch of understanding, be termed as an interlocutory order. Even though it is the portion of the judgment which is under challenged but as conceded by Ld. Counsel for revisionist, acquitted accused and Ld. Addl. PP , Ld. Magistrate has no where specified in the order as to which power conferred by the Code of Criminal Procedure has been exercised by him while directing CP, Delhi to lodge FIR against the revisionists . They all concede that they have never come across any such order in their professional carrier where while passing a judgment of acquittal , a Trial Magistrate has Page20/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 21 passed direction for registration of a FIR against the police officials and the complainant directly . That too when Ld. Magistrate was not seized of any formal complaint against them of any nature . Since Ld. Magistrate was not seized of any complaint as defined under Section 2 (d) of Cr.P.C. , the impugned portion of the order can not be said to be an order U/s 156 (3) Cr.P.C. and hence 2011 Cr.L J 2278 relied by Ld. Counsel for acquitted accused Sh. Lekhi is not applicable to the facts of this case. I also find no strength in the plea that the only legal remedy available with revisionist was a Writ Petition under Article 226 of The Constitution of India in so far as Section 397 of Cr.P.C. is an enabling provision which empowers Hon'ble High Courts as well as Sessions Court to critically analyise and satisfy itself , even without a formal petition , about correctness, legality and propriety of a finding, sentence or order passed by an inferior court or irregularity of the proceedings being carried on by the inferior court. I also find no strength in the plea of Sh. Lekhi that revisional power can be exercised under Section 397 Cr.P.C. only qua those orders which are capable of being executed . Usage of words "finding", "order" and "irregularity of proceedings" before an inferior court apart from the word Page21/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 22 "sentence" makes clear the intent of the legislature that Section 397 Cr.P.C.
is an unhindered and unrestricted power conferred by the Code on Hon'ble High Court and the Sessions Court to keep a check on the functioning of inferior courts and as such same can not be restricted to executable orders like "sentence" alone.
30. Simply because the order / direction of lodging of FIR has been incorporated by Ld. CMM in a judgment passed after a trial , it can not be said that the revisions in hand have been filed against the whole judgment.
The very language of the prayer clause of the revisions makes it clear that they are not impugning the judgment as such or the finding contained therein qua trial. The revisions are challenging only the specific directions incorporated into the judgment. It goes without saying that the judgment of Ld. CMM dated13.9.2011 is not against either of the revisionist in so far as they were not facing trial therein. If Ld. CMM was desirous of passing any such directions , the same ought to have been incorporated in the miscellaneous order sheet passed on the date of announcement of judgment. As per Chapter XXVII of Cr.P.C. Sections 353 to 355, a judgment is supposed to contain points of determination and decision Page22/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 23 thereof along with reasons. Hence if Ld. Magistrate was desirous of traveling beyond what Section 354 & 355 Cr.P.C. provides, then the same should have been incorporated in the miscellaneous order sheet of the day.
31.In case titled, " Pranab Kumar Mitra Vs. State of West Bengal" AIR 1959 SC 144 Hon'ble Supreme Court ruled that :
"the revisional power of the High Court in Section 401 and Sessions Court U/s 399 r/w Section 397 has been conferred has been conferred by the statute so that they can ensure that justice is done and that subordinate Courts do not exceed their jurisdiction or abuse their powers."
32.In case titled, " Asia Metal Corporation Vs. State" 130 (2006) DLT 545 Hon'ble Delhi High Court ruled that :
"when a Court of Ld. MM commits a serious error, revision petitions would be maintainable so as to correct those errors."
Legal Soundness of the impugned order
33. Article 21 of the Constitution of India provides : Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to Procedure established by Law.
Page23/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 24
34.In case titled, "Police Commissioner Delhi Vs. Registrar Delhi High Court", AIR 1997 SC 95 it was ruled, "Assurance of a fair trial is the first imperative of the dispensation of justice."
35. In case titled, " Maneka Gandhi Vs. Union of India" while discussing the scope of Article 21 Hon'ble Supreme Court observed that not only the sanctity of the procedure established by Law shall be maintained but also that it shall be just fair and reasonable .
36.In the matter in hand, not only the battery of Lawyers for the revisionist as well as acquitted/accused persons are in the loss but even this Court is unable to ascertain as to which power provided by Cr. P.C. was exercised by Ld. MM while ordering Registration of FIR in the manner so done in the case in hand.
37.In the case in hand the issue of maintainability also does not arise for the simple reason that neither of the revisionist was a party to the trial before Ld. Magistrate. Two of the five revisionists were not even witnesses and had never appeared before the court during the entire trial. Ld. Magistrate was not seized of any complaint against either of the revisionists. As such I Page24/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 25 have no hesitation in concluding that the revision in hand is fully maintainable.
38.As far as the merits of the issues raised by Ld. Counsels for the revisionists, the same can be understood , dealt with and decided in broadly two basic para meters .
39.THE FIRST - WHETHER THE IMPUGNED PORTION OF THE JUDGMENT IS PROCEDURALLY SOUND AND SUSTAINABLE .
40.THE SECOND - WHETHER THE FACTS AVAILABLE BEFORE LD.
MAGISTRATE WARRANTED PASSING OF THE IMPUGNED DIRECTIONS .
41.As far as the legal and procedural soundness of the impugned portion of the judgment of acquittal dated 13.9.2011is concerned, the same has to be critically looked into so as to ascertain its correctness , legality and propriety of the same.
42.As far as legality is concerned, as mentioned supra, the impugned portion of the judgment qua lodging of FIR appears to have been passed by Ld. Magistrate while exercising power U/s 156 (3) Cr.P.C. It goes without saying that Ld. Magistrate was not seized of any complaint as defined U/s 2 (d) of Cr.P.C.
Page25/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 26
43.Section 2 (d) of Cr.P.C . runs as under:
Section 2 clause (d) Complaint: means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
44.It appears that Ld. Magistrate got swayed and has considered the Section 313 Cr.P.C. statement of accused as well as depositions of DW apart from text of the claimed telephonic conversation as a complaint before him, even though they do not either individually or jointly qualify as a complaint under the Code. Further more , once the power of Section 156 (3) Cr.P.C.
already stood availed of before Ld. Predecessor of Ld. CMM by one of the acquitted accused namely Om Parkash, as mentioned in detail, supra, in my considered view Section 156 (3) Cr.P.C. could not have been taken recourse to yet again in so far as it would tantamount to reviewing of the previous order. Not only the previous Section 156 (3) Cr.P.C. was dismissed by the then Ld. CMM but also a revision qua the same was dismissed by Ld. Sessions Court.
45.There is discussion in case titled, " Sambasivam Vs. Public Prosecutor"
(1950) AC 458 where it was ruled , Page26/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 27 " The maxim ' Res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings."
46.Although admittedly in the case in hand Ld. CMM was not seized off any complaint against either of the revisionist but still Ld. Counsel for revisionist Ms. Luthra have made a statement that Ld. CMM appears to have adorned the role of review court on the previously dismissed 156 (3) Cr. P.C. application his predecessor CMM on absolutely same facts.
47.Similar view was expressed by Full Bench of Hon'ble Allahabad High Court in case titled, " Lalta & Ors. Vs. State of U.P." AIR 1970 SC 1381 and another case titled , " Masud Khan Vs. State of U.P. (1974) 3 SCC 469 Full Bench of Hon'ble Supreme Court observed, " The principle of issueestoppel is simply this : that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law. However, the plea of issueestoppel is not the same as the plea of double jeopardy or autrefois acquit. Issueestoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions."
Page27/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 28
48.In case titled, " Ajay Kumar Tyagi Vs. State " Crl.
MC No. 1833/2007Hon'ble Delhi High Court observed, " The respondent has itself exonerated the petitioner in the adjudication proceedings on merits and its order has attained finality. The continuation of criminal proceedings on identical facts and requiring a higher degree of proof cannot be justified. Consequently , criminal proceedings on same set of facts cannot be allowed to continue against the petitioner."
49.Even though the earlier criminal complaint preferred by the acquitted accused persons was got dismissed as withdrawn immaturally but it had crossed the stage of contested 156 (3) Cr. P.C. In that limited sense, once Criminal Court of Ld. CMM dismissed the 156 (3) Cr. P.C. application of 06.07.07 while discussing that the material is not sufficient to order for Registration of FIR , no repeat and different finding by Successor Court of CMM could have been passed in the manner so done by Ld. CMM.
50.The claimed conversation recorded through a mobile phone, does contain disturbing material. Accusations were made by some DWs qua some malpractices adopted during the investigation in this case. It is quite agreeable that Ld. CMM was not expected to sit over the same and do nothing about them. The question which arises is as to what legal Page28/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 29 recourses were available to him in the facts and in the light of material available before him. One option which Ld. Magistrate could have exercised is taking cognizance U/s 190 (1)(c ) Cr.P.C. himself by making all the revisionist as accused . Section 190 (1) (c ) Cr.P.C. runs as under:
Section 190 Cr.P.C. Cognizance of offences by Magistrate - (1) Subject to the provision of this chapter , any Magistrate of the first class . . . . . may take cognizance of any offence - (c) upon information received from any person other than a police officer , or upon his own knowledge, that such offence has been committed.
51.Had Ld. Magistrate taken recourse to this provision , the order would have at least been legally and technically sound . But since this provision of law was not retorted to , it is an indication that Ld. Magistrate was not satisfied about the culpability of the material available before him. It shows that he did not find the material satisfactorily believable enough to make the revisionists accused .
52.Ld. Magistrate could have also taken recourse to Section 340 Cr.P.C. as well but even this option was not exercised to. Perhaps Ld. Magistrate found that the certain offences, which according to him deserved to be invoked, are not covered under Section 195 Cr.P.C.
Page29/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 30
53.In case titled, " Neeraj Sharma Vs. State of Delhi" Crl.M.C. 2020/2005 Hon'ble Delhi High Court while dealing with the matter where District Court ordered for Registration of FIR instead of holding an inquiry U/s 340 Cr. P.C. ruled that:, " A bare reading of the aforesaid provision goes to show that whenever in relation to any offence committed in the course of any judicial proceedings where provisions of Section 195 are attracted and an application is filed U/s 340, the Court is competent to take appropriate action. However, for that purpose the Court is required to hold an inquiry and to record a finding that prima facie a case is made out. It is only then he can make a complaint thereof in writing send it to a Magistrate of First Class having jurisdiction, take sufficient security for the appearance of the accused before such magistrate, and/or bind over any person to appear and give evidence before such Magistrate. The provision contained U/s 340 (I) does not authorize the concerned Court to refer the matter to the police or to direct registration of FIR for the purpose of holding a preliminary inquiry as has been done in this case while passing the impugned order by the Ld. District Judge.......... In view of aforesaid, while the Ld. District Judge was competent to have made a complaint to a subordinate Court for the purpose of trying the offences alleged against the accused persons but it could have been done by the District Judge only after recording a finding that there are grounds to proceed against the accused persons under Section 340 Cr. P.C. However, apparently in the present case no such finding has been recorded by the Ld. District Judge as can be seen from the order quoted above. Instead he chose to direct P.S. Subzi Page30/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 31 Mandi to register an FIR and to undertake further inquiry which is not the Course upon for the Ld. District Judge.
The Court could have made a complaint after recording a prima facie finding of his opinion that a prima facie case was made out against the accused persons and then could have filed a complaint before the Metropolitan Magistrate concerned. While trying the said complaint the Magistrate was competent to have directed the SHO to hold an enquiry by exercising the powers under Section 156 (3) Cr. P.C. where after the Magistrate might have either taken cognizance on the basis of police report or could have proceeded with the complaint in accordance with Chapter XXV of Cr. P.C. However, the said procedure has not been adopted but a different procedure that directing the police to register an FIR and then to record evidence and then to take appropriate steps including sending a report to the District Judge has been adopted which in view of the judgments cited above cannot be sustained. Accordingly, the order dated 27.04.2005 passed by the District Judge, impugned in this petition is set aside. Consequently the FIR registered on the basis of said order, i.e. FIR NO. 163/2005 DATED 04.05.2005 at P.S. Subzi Mandi is also quashed."
54.It has been argued by Ld. Counsel for acquitted accused persons Sh.
Lekhi that wheel of criminal law could have been set in motion by Ld. Magistrate under his inherent powers or simply as an ordinary complainant as well. No doubt wheel of criminal law can be set in motion by any person subject just exceptions but in the matter in hand , the language used in the impugned portion of the order travels much beyond a marking of a Page31/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 32 complaint to CP qua commission of malpractice. Since the language used Ld. CMM is in the form of a specific direction , the same shall emanate only from power conferred by Statute under Criminal Procedure Code alone . A Magistrate does not exercise any inherent power akin to 482 Cr.P.C. as exercised by Hon'ble High Court .
55.Having said this, all this does not mean that Ld. Magistrate had no legal recourse available before him . At this juncture Delhi High Court Rules as contained in Rule 6 Chapter 1 Vol. III Part H comes into picture which reads as under :
" 6. Criticism on the conduct of Police and other officers
- It is undesirable for Court to make remarks censuring the action of police Officers unless such remarks are strictly relevant of the case. It is to be observed that the Police have great difficulties to contend with in this country, chiefly because they receive little sympathy or assistance from the people in their efforts to detect crime. Nothing can be more disheartening to them than to find that, when they have worked up a case, they are regarded with distrust by the Courts; that the smallest irregularity is magnified into a grave misconduct and that every allegation of illusage is readily accepted as true. That such allegation may sometimes be trust it is impossible to deny but on a closer scrutiny they are generally found to be far more often false. There should not be an over alacrity on the part of Judicial Officers to believe anything and everything against the police; but if it be proved that the police have manufactured evidence by extorting Page32/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 33 confessions or tutoring witnesses they can hardly be too several punished. Whenever a Magistrate finds it necessary to make any criticism on the work and conduct of any government servant, he should send copy of his judgment to the District Magistrate who will forward a copy of it to the Registrar, High Court, accompanied by a covering letter giving reference to the Hone Secretary's Letter No. 920J th 36/14753 dated the 15 April,1936."
56.Further more , Ld. CMM has unfortunately failed to abide by the repeated guidelines laid by Hon'ble Supreme Court qua exercise of restraint while making sweeping generalisation against the working of police.
57.In case titled State of UP Vs. Mohd. Naim, AIR 1964 SC 703, Hon'ble Supreme Court held that :
"................ in expressing their opinions, Judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping generalizations defeat the very purpose for which they are made............."
58.In case titled State of WB vs. Mir Mohammad Omar & Ors,(2000)8 SCC 382, Hon'ble Supreme Court observed that :
"............. castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit the accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the Page33/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 34 criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers ....... Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above."
59.In case titled, "Tessta Setalvad Vs. State of Gujarat" AIR 2004 SC 1979 Hon'ble Supreme Court ruled, " Time and again (this) Court has deprecated the practice of making observations in judgments, unless the person in respect of whom comments and criticisms were being made were parties to the proceedings and were granted an opportunity of having their say in the matter, unmindful of serious repercussions they may entail on such persons.
Apart from that, when there is no relevance to the subjectmatter of adjudication, it is certainly not desirable for the Courts to make any comments or observations reflecting on the bona fides or credibility of any person or their actions . Judicial decorum requires dispassionate approach and the importance of issues involved for consideration is no justification to throw to winds basic judicial norms on mere personal perceptions as saviours of the situation."
60. In case titled , " State of West Bengal Vs. Babu Chakraborty" AIR 2004 Page34/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 35 SC 4324 while deprecating the practice of courts of criticising the police officials for violations of certain provisions in discharge of their duties that too without affording an opportunity of being heard, Hon'ble Supreme Court ruled, "The High Court was not justified in passing structures against the police officials without affording an opportunity of being heard and that the High Court also omitted to take note of the fact that the action taken under the NDPS Act in good faith was protected under Section 69 of the Said Act."
61.Further more , the impugned portion of the judgment is found to be not sustainable in law legally in so far as it contains a direction to CP, Delhi to lodge a FIR under Section 7 ,8 & 13 of Prevention of Corruption Act '1988. It goes without saying that a Magistrate has absolutely no role to play as far as direction qua lodging of FIR under PC Act is concerned.
62.In case titled, " Mahipal Vs. State of U.P." 2009 Cr.L.J. 983 while dealing with the issue of 156 (3) Cr. P.C. application under PC Act matter it was ruled that :
" The power to take cognizance of offences under the P.C. Act has been conferred on the Special Judge by virtue of Section 5 of that Act. Hence, the Page35/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 36 application under Section 156 (3) Cr. P.C. disclosing the commission of offences under P.C. Act can be entertained by Special Judge appointed U/s 3 of that Act."
63.Another striking legal flaw in the impugned portion of the judgment is that a direction has been given to CP , Delhi to register FIR under Rule 22.50 of Punjab Police Rule. For ready reference this rule is reproduced hereunder:
Section 22.50 Punjab Police Rules, 1913
64. 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 hehas or has not been directed to make such entry by a superior officer, shall ordinarily by 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.
65.Interestingly this rule neither pertains to nor has any concern with "Case Diaries" of a pending investigation matter in so far as it deals only the "Daily Diaries" maintained by every police stations. Moreover, even if there is a case of non compliance of Punjab Police Rule'1913, no FIR can be ordered Page36/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 37 to be registered as desired by Ld. Magistrate and the same deserves to be handled and dealt with only Departmentally.
66.In the judgment of acquittal , Ld. Magistrate appears to have been swayed by his false perception about the powers of Special Cell to handle an investigation of the complaints like the one which was made by revisionist Rajive Pahuja. Ld. Magistrate has erred when he opined that Spl. Cell of Delhi Police could not have handled it as it can handle investigations only qua Terrorist . The relevant notification qua the duty and powers of Spl.
Cell is reproduced hereunder:
th
67.The Notification No. F1/5/2000HP1/Estt./186367 dated 26 March'2002 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. U110011/1/74UTI (i) th dated the 20 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 Substance Act, 1908 (6 of 1908), the Foreigners Act, 1946 (31 of 1946), Terrorist Activities, offences against the State, activities of gangsters, smuggles, gun runners, mafias, counterfeiters, narcotics smugglers and other offences prejudicial to national security/interest, public safety and order, and tranquility or any other offence under the relevant Acts, and shall have jurisdiction over the whole of the Page37/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 38 National Capital Territory of Delhi, with immediate effect. ( emphasis supplied )
68.Plain reading of the above, makes it clear the sphere of activity and domain of Special Cell is not restricted to Anti Terror Operations but it also travels much beyond for containing operation of Gangster, Mafias & ensuring public safety.
69.Another circumstance heavily relied by Ld. Magistrate is that a portion of one of the case diary has been replaced by revisionist IO SI Gajender Singh and that it was so done in order to facilitate false implication of the accused persons & further the corrupt practices. As per deposition of IO PW20 the necessity to change the same arose since an electricity bill was seized from complainant Rajive Pahuja and the same could not be mentioned in the earlier CD. It is not the case of the acquitted accused persons as well that the case diary was changed for fructifying some graver act / omission.
70.Although an argument was putforth by Ld. Counsel for revisionist that police officers have protection Under Section 140 DP Act and as such Page38/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 39 technically no order for lodging of FIR could have been passed against them. I am not in conformity with this plea in so far as Section 140 DP Act pertains to initiation of prosecution and cognizance. Lodging of FIR in stricter sense is not covered under the same.
71.As far as factual matrix of this case, which led to passing of the impugned portion of the judgment, is concerned, I see absolutely no explanation or logic in the act of Ld. CMM in proceeding to record Section 313 Cr.P.C.
statements of accused even though all the ten public witnesses including the revisionist / complainant Rajive Pahuja had turned absolutely hostile. In the absence of support from either of the ten public witnesses, the fate of the prosecution case was even otherwise sealed and there was absolutely no legal or procedural necessity of recording of Section 313 Cr.P.C.
statement of the accused. Even the terminology used in the Section 313 Cr.P.C. restricts the questionnaire only to incriminating circumstances appearing in the evidence against accused. In the matter in hand since the entire prosecution rested on oral evidence in so far as no incriminating material suggesting extortion and criminal intimidation was seized. Once all the 10 witnesses turned hostile , the prosecution evidence was left with Page39/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 40 absolutely no circumstance against either of the accused. Perusal of the 313 Cr.P.C. statements recorded by Ld. Magistrate simply shows that formal investigational documents like arrest memos etc have been put to them which are even otherwise of no legal consequence in the facts and circumstances. Similarly Section 164 Cr.P.C. statement given by public witnesses during investigation are of no evidentiary value once the PWs resiled therefrom during the trial. Once this case could have been concluded at the pre Section 313 Cr.P.C. stage, I am at a total loss to understand as to why the trial was carried on further when the situation did not legally warranted so.
72.Perusal of the judgment dated 13.9.2011 shows that Ld, Magistrate has pain stakingly reproduced almost entire Section 313 Cr.P.C. statement of the accused persons in his judgment even though they are not treated as "evidence" in the legal sense not only because they are recorded without oath but also the averments made therein by the accused are not tested on touch stone of the cross examinations. It appears that the statements have been so produced by Ld, Magistrate only to give colour to his conclusion to get an FIR lodged against the complainant and other police officers. Even Page40/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 41 though an opportunity was available to all the five accused persons to examine themselves as DW under Section 315 Cr.P.C. but neither of them came forward for the same.
73. In case titled , " Dehal Singh Vs. State of HP" (2010) 9 SCC 85 Hon'ble Supreme Court while discussing 313 Cr. P.C. Statement of accused ruled, "Statement U/s 313 Cr. P.C. is taken into consideration to appreciate the truthfulness or otherwise of the case of the prosecution and it is not an evidence. Statement of an accused U/s 313 Cr. P.C. recorded without administering Oath and, therefore, the said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act."
74.In case titled , " V.S. YADAV Vs. REENA"
172 (2010) DLT 561 Hon'ble Delhi High Court while discussing the evidentary value of 313 Cr. P.C. Statement of accused ruled:
" It must be borne in mind that the statement of accused U/s 281 Cr.P.C. or U/s 313 Cr. P.C. is not the evidence oif the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement U/s 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as an evidence.
Page41/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 42 There is no presumption of laws that explanation given by the accused was truthful."
75.In this case 10 out of the 20 witnesses mentioned in the list of witnesses were public persons. Up to the stage of framing of charge, the prosecution case was found to be sound in so far as not only Section 161 Cr.P.C.
statement of 10 PWs were available on record containing specific accusations against all the six accused persons but also Section 164 Cr.P.C. statements of four of them were recorded before Ld. Magistrate.
This case appears to be unprecedented and classic example where police is being blamed by a Trial Court for the failure of complainant and nine other public witnesses to support their statements given to the police and a Magistrate during investigation. In case a public witness turns hostile, which in the matter in hand was apparently done under written settlements arrived at between complainant and the accused side, then police can not be baldly and squarely blamed for the same. Such was the conduct of the public witnesses , especially PW 9 Rajneesh Kr. Bhatnagar that he even denied his signature on Section 164 Cr.P.C. statement recorded by PW1 Ld. Magistrate. Interestingly not even a single question or suggestion was Page42/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 43 put to Ld. Magistrate qua either of four Section 164 Cr.P.C. statements recorded by him suggesting that the public witnesses were under threat or coercion or pressure of any kind while they gave their statements on oath to him. Despite all this , it is interesting to observe that Ld.CMM has concluded and has given a categorical finding that the statements recorded under Section 164 Cr.P.C. by Ld. MM , were made by PWs under duress & coercion .
76. Instead of initiating proceedings against public witnesses who turns hostile despite existence of their Section 164 Cr.P.C. statement, Ld. Magistrate turned the heat on the Police Officers by simply relying on Section 313 Cr.P.C. statements of the accused persons, deposition of DWs apart from transcript of a legally unproved an audio CD .
77. As ruled by Division Bench of Hon'ble High Court in case titled, " State Vs. Siddarth Vashisht @ Manu Sharma" Crl. Appeal 193/2006 where proceedings U/s 340 Cr. P.C. were initiated against the hostile witness.
78. As far as the claimed audio CD and its transcript are concerned, it is evident from record that despite it being an "Electronic Document" no compliance of Section 65 B of Evidence Act was sought or ensured. Even Page43/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 44 though PW17 HC Hari Kishan did not admit in so many words that the voice in the CD belongs to him, Ld. Magistrate has placed a lot of reliance over it as if every word contain therein is gosple truth. Such has been the poor quality of evidence qua the CD that even the primary instrument which was used to record the claimed conversation was never produced.
79.Since it has been argued that the alleged conversation was initially recorded on a mobile phone while it was used as a recorded device.
80.In case titled , " Ram Singh Vs. Col. Ram Singh" 1985 (Supp) SCC 611 Full Bench of Hon'ble Supreme Court while dealing with election ptition involving the tape recorded conversation laid following conditions for its admissibility:
1. The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
2. The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
3. Every possibility of tampering with or erasure of a part of a Page44/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 45 taperecorded statement must be ruled out otherwise it may render the said statement out of context, and therefore, inadmissible.
4. The statement must be relevant according to the rules of Evidence Act.
5. The recorded cassette must be carefully sealed and kept in safe or official custody.
6. The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
81.As per Section 2(ha) of Information Technology Act'2000 :
"Communication device means cell phone, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text , video , audio or image."
82.In so far as the cell phone was used for the purpose of recording and storing of conversation in its memory base , it would also cover under the definition of term computer as defined in Section 2 (i) of IT Act'2000 , in so far as it was used to record and store the claimed conversation in its memory in electronic form .
83.The claimed conversation is actually 'Data' as defined in Section 2(o) of IT Act which reads :
"data" means a representation of information, knowledge, facts concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and Page45/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 46 may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;
84."Electronic data" Section 2(t) of IT Act runs as under:
"electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;
85.Since after the promulgation of Information Technology Act'2000 consequential amendment was dropped by the Parliament in the Indian Evidence Act'1872 by including Sections 65A and 65B . Section 65 A provides that all electronic records shall be proved in accordance with Section 65B of the Evidence Act. Section 65 B in turn provides detail procedure to be followed in order to prove an Electronic Record and make it legally admissible evidence. Its language has an over riding effect over the entire Evidence Act and this signifies its importance and bindingness.
Section 65 A Evidence Act reads :
86.Section 65A Evidence Act Special Provisions as to evidence relating to electronic record The contents of electronic records maybe proved in accordance with the provisions of Section 65B
87.Section 65 B Evidence Act Admissibility of electronic records (1) Notwithstanding anything contained in this Act, any Page46/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 47 information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied.
2...........................................
3...........................................
4.In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub section (2) relate.
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a mater to be stated to the best of the knowledge and belief of the person stating it.
5..............
88.Also definition of word "Evidence" in Section 3 of the Evidence Act was amended to include all documents including "Electronic Record" produced for inspection of the Court under the 'Sub Head Documentary Evidence.' Page47/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 48
89. In case titled Dharambir Vs. CBI 2008 (3) AD Delhi 557 Hon'ble Delhi High Court while dealing in great detail, the above statutory provision, ruled that sanctity and legal bindingness of Section 65B of Evident Act shall be maintained during a trial. Court further ruled that - whenever an electronic record is sought to be relied in evidence, the original as well as copies / replicas thereof are both considered as electronic record. And such documents are covered under Section 173 (5) Cr.P.C. as part of chargesheet.
90.Similarly, in case titled Dharambir Khattar Vs. CBI 148 (2008) DLT 289 and Vinod Kumar Jha Vs. CBI 2009 (8) AD Delhi 561, Hon'ble Delhi High Court dealt with matters pertaining to Electronic Records while underlying the necessity of following the amended Evidence Act qua electronic documents.
91.Interestingly in the case in hand not only the original instrument used to recording the claimed conversation was not produced but also there is not mention of any other computer device which might have been used to copying and burning CDs of the claimed conversation.
92.Also no permission was sought at any stage for leading secondary Page48/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 49 evidence by producing recorded replica of it . So much so that Ld. Magistrate himself adorned the job of an Expert and gave a finding that voice in the CD is that of PW17 Hari Kishan. An endeavour was made to seek an expert opinion over the same in the form of DW 5 Deepak Kumar Tanwar but even the opinion Ex.DW5/A shows that, the expert neither sought the primary recording instrument nor gave a binding report that the recorded conversation was that of PW17 Hari Kishan. Even the date, time and place of the alleged recording was not available and the ownership of the instrument which was used to record the claimed conversation was neither identified nor produced. There is no averment or even a whisper of its safe custody.
93.As such in view of the above discussion I have no hesitation in concluding that the impugned portion of the judgment of acquittal dated 13.9.2011 of Ld. CMM is illegal , perverse and fractious and as such can not be sustained both legally and factually.
94.Having said this , the intent of Ld. CMM in feeling agitated and bringing to the fore the claimed incident of corruption in the hierarchy of Spl. Cell shall not be questioned. It goes without saying that whenever such like Page49/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 50 instances come to the notice of a Judicial Court , the same shall never be over looked. Every Court is duty bound in law to take appropriate steps to not only ensure that no innocent person ends up in getting convicted and also that no wrong doer or violator of law escapes from the clutches of law.
In such cases, like the one in hand, the action shall not be guided by emotional outbursts. Court shall consciously take steps within the precincts of law. Every order passed by a Court needs to on sound procedural and legal footings. The inputs available on record, even if poorly conceived, indicates a suspected case of corruption and misuse of police power by hierarchy of Spl. Cell of Delhi Police. It needs to be looked into and can not be brushed aside in any manner.
95.As such, as the law so propounds and Delhi High Court Rules so lay and provide , copy of this order be sent to Secretary Home, Ministry of Home Affairs, Government of India for information.
96.Copy of this order be also sent to Commissioner of Police , Delhi with a direction to get a detailed enquiry conducted after assessing the genuinity of the claimed Audio CD. The enquiry shall also be held qua the accusations made by DWs and acquitted accused persons of this case Page50/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011 51 against police personnels. Since officials from the rank of Head Constable to Joint CP are named in this matter, the enquiry shall be held by / under direct supervision of an officer not below the rank of Spl. CP.
97.Upon conclusion the report shall be put before Secretary Home, Ministry of Home Affairs,Govt. of India who shall take necessary follow up action as per report. Preliminary Report qua initiation of action shall reach this Court, from the Office of CP, Delhi within 10 days of receipt of order. Upon completion of of enquiry, copy of report and follow up action shall be sent to this Court for information. Revision petition accordingly stands allowed.
File be consigned to RR after the receiving report of CP, Delhi. TCR be sent back with copy of this Order.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 14.12.2011.
(SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page51/51 of Common Order on Revisions No.80/11 to 84/11 dt.14.12.2011