Punjab-Haryana High Court
Bhavesh Navin Shah vs State Of Punjab & Others on 23 May, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Misc.No.31530 of 2010 (O&M) :1 :
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: May 23, 2012
Bhavesh Navin Shah
.....Petitioner
VERSUS
State of Punjab & others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr.R.S.Cheema, Senior Advocate with
Mr.K.S.Nalwa, Advocate,
for the petitioner.
Mr.Sudhir Nehra, DAG, Punjab,
for the State.
Mr.J.S.Bedi, Advocate,
for respondent No.2.
None for respondent No.4.
Mr.Tejinder Joshi, Advocate,
for respondent No.5.
Mr.Vikram Chaudhari, Advocate,
for respondent Nos.7 and 9.
Mr.Sanjeev Sharma, Advocate,
for respondent No.10.
****
RANJIT SINGH, J.
The petitioner, who is resident of Mumbai and is a complainant in FIR No.214 dated 9.10.2008, registered against the respondent-accused under different offences relating to robbery etc. Criminal Misc.No.31530 of 2010 (O&M) :2 : for which they have been charged under Sections 120-B, 397, 324, 323, 412 and 201 IPC, has approached this court for transfer of this case outside the State of Punjab on the ground that fair trial is not possible in this case because of the influence yielded by the main accused Mohit Sharma, whose father is a senior police officer in the State of Punjab.
Noticing the averments made in the petition, which sounded rather serious, this court stayed further proceedings before the trial court while issuing notice to the respondents. In response to notice, counsel have put in appearance for various respondents, including Mohit Sharma (respondent No.2) and other persons facing trial in this case at Jalandhar. The grounds raised by the petitioner to seek the transfer of case outside the State of Punjab were noticed by this court while issuing notice of motion and the same are as under:-
"Counsel for the petitioner has submitted that the petitioner being a complainant and an aggrieved person belonging to Mumbai, has got an apprehension that he would not ultimately be able to get justice on account of the non-cooperation of the prosecution agency regarding which he has already made a complaint against Additional P.P. To the Director Public Prosecutor with a copy to different authorities. It has also been submitted that the petitioner is also not getting cooperation from the PWs who have intentionally deviated from their original/actual versions to indirectly support the accused persons. It is claimed that the cross-examination of the Criminal Misc.No.31530 of 2010 (O&M) :3 : petitioner was got cleverly deferred at the instance of the prosecution agency by evading the production of case property on 4/5 dates of hearing. The petitioner submits that there is a threat to his life and the accused have been able to create circumstances in such a way that the petitioner has to repeatedly come in the territory of Punjab.
In order to substantiate the injustice done to the petitioner, reference has been made to the false criminal cases which were got registered against him State of Haryana which were ultimately cancelled on proper investigation.
Notice of motion for December 15, 2010.
Meanwhile, further proceedings before the trial court are stayed."
The case thereafter has been adjourned from time to time when the case was finally taken up for hearing. The counsel appearing for the respondents did not raise any objection to the prayer of transfer of this case as is made in this petition. At the time of arguments, Mr.Vikram Chaudhri, counsel appearing for respondent Nos.7 and 9, stated as under, which is recorded in his own words and language:-
"without prejudice to my right and contention, let the case be transferred to any place with direction to expedite the trial".
Mr.J.S.Bedi, counsel appearing for the main accused/ Criminal Misc.No.31530 of 2010 (O&M) :4 : respondent No.2 has also categorically stated before the court that he would not have any objection for transfer of this case even outside the State of Punjab. Thus, the main prayer made in the petition obviously is not objected to.
Mr.R.S.Cheema, learned senior counsel appearing for the petitioner, however, sought to put this case to some different pedestal by urging that this is such a case where court should act suo-motu to take notice of a disturbing feature and order some investigation preferably by CBI into the causes, for which the complainant and other witnesses have been threatened and made to depose against the prosecution though in a highly guarded manner. Mr.Cheema would further urge that an attempt has been made in this case to interfere in the cause of justice and the manner in which the trial has proceeded before the trial court would clearly show that a fair trial is a casualty and there may be need to take effective steps by this court to see that the cause of justice does not suffer on account of interference by highly placed accused persons, one of whom is related to highly placed police official.
Respondent No.2 is stated to be the main accused in this case. He is a son of Shiv Kumar Sharma, who at the relevant time was serving as S.P. Vigilance Bureau Patiala, Punjab and, thus, is sated to be an highly influential person, who is interfering in the cause of justice to make the witnesses to depose in the manner they have to extend favour to the accused. As per the petitioner, the fair trial is clearly a casualty in this case.
During the course of hearing, one very disturbing feature Criminal Misc.No.31530 of 2010 (O&M) :5 : surfaced before the court. When asked as to where Shiv Kumar Sharma, Superintendent of Police was serving, it was made out before the court that Shiv Kumar Sharma has retired. The court thereafter asked the State to file an affidavit if Shiv Kumar Sharma was still serving in any capacity, when Deputy Superintendent of Police, Sub Division Phillaur, District Jalandhar came on affidavit to state that Shiv Kumar Sharma had retired from the service w.e.f. 31.3.2010 on superannuation while he was posted as Superintendent of Police, Vigilance Bureau, Punjab. What is disclosed subsequently was found to be rather disturbing. After his retirement, Shiv Kumar Sharma was appointed on the contract basis for further two years w.e.f. 19.4.2010 and was working as Senior Superintendent of Police, Vigilance Bureau, Punjab, Patiala. Thus, Shiv Kumar Sharma, who had retired as Superintendent of Police was re-employed on contract basis and made to work as Senior Superintendent of Police, Vigilance Bureau at Patiala. He is father of Mohit Sharma, who is the main accused in this FIR. Though no criminal case is pending against Shiv Kumar Sharma and he is statedly not involved in this case as well, where his son is the main accused. Shiv Kumar Sharma has not been given further extension as is disclosed in the affidavit.
The fact that main accused in this case is the son of an influential police officer, who is a preferred one and was given re- employment on contract basis and made Incharge of Vigilance of a District as Senior Superintendent of Police, would certainly indicate that he is having a real clout with the power center whatsoever at the Criminal Misc.No.31530 of 2010 (O&M) :6 : helm affairs of the State or its police department. Though Shiv Kumar Sharma has not been named as an accused in this FIR, but the facts as mentioned in the petition and in the FIR would show that the complainant was taken to his residence by Mohit Sharma, where he statedly was living with his father. At this place, the complainant had shown diamonds to Mohit Sharma, which ultimately were robbed from the complainant. The diamonds were later recovered from the same house where Shiv Kumar Sharma was also residing. One may wonder, if the police would let of any other ordinary citizen if the robbed items had been recovered from a house shared by the main accused with his father. It is but natural that a police officer whose son is involved in such a serious offence would intendedly or un- intendedly render assistance and help to his son to get him of the hook in this case. The ever obliging police officers cannot be expected to insulate themselves from the influence of their senior officer, who notebly is having connections with high ups. Mind you, though re-employment on contract basis still was given responsibility to be the vigilance Incharge of a District in a promoted rank as the Senior Superintendent of Police. What would be fate of these cases handled by him is not for this court to see. It is for the Government to see if a person re-employed on contract basis can perform duties of police officer as per the procedural code. May be that to avoid such uncomfortable facts from surfacing, the counsel for the respondents at the outset conceded to the prayer made by the petitioner for transfer of this case for the purposes of trial even outside the State.
By now, some of the main witnesses have already been Criminal Misc.No.31530 of 2010 (O&M) :7 : examined. It would not be fair for this court to comment on the conduct of witnesses as that may prejudice the trial of the accused persons or that of the prosecution. It is for the trial court to decide the worth of these witnesses and also to see if they have given any version which could be attributed to any undue influence yielded on them by the accused persons. The request of transfer, thus, having not been opposed can be granted in order to ensure that the apprehension appearing in the mind of the complainant/prosecution is taken care of and is removed.
It is alleged that the accused persons through their father have influence in the neighbouring State as well and in this regard reference is made to a case which was registered against the complainant-petitioner, when he was to appear in the court to face cross-examination. It is averred in the petition that ignoring the various threats, which were given to the petitioner-complainant for his elimination if he appeared to give evidence at Jalandhar, the petitioner had appeared before the court under protection on 9.9.2009 when part of his examination-in-chief alone was recorded. He was again called to record further evidence on 29.9.2009, but his evidence could not be concluded as the Punjab Police failed and neglected to produce the case property which are diamonds worth Rs.3.52 crores as assessed. The petitioner states that when he identified all the accused persons in the court in the course of his evidence, one of the accused, namely, Gurdihan Singh filed a CRM- M No.25906 of 2009 before this court to seek transfer of this case to Gurgaon. This petition, however, was dismissed. The petitioner then Criminal Misc.No.31530 of 2010 (O&M) :8 : was to appear before the trial court on 19.11.2009, when he was mainly required to examine and identify the seized diamonds. In order to stall his appearance, FIR No.176 of 2009 was got registered against him on 4.9.2009 under Sections 420, 406 and 506 at Police Station, Tohana, District Fatehabad. This FIR was lodged by one Balkar Singh. As per the petitioner, this was to pressurize him to succumb to the illegal demand and threat by the accused, so that he did not appear at Jalandhar to further depose in this case.
In the complaint made by Balkar Singh, he has alleged that he met the petitioner on 4.6.2009, who disclosed to him that he was sending persons abroad and as such has demanded sum of Rs.15.00 lacs from Balkar Singh. Rs.7.00 lacs was demanded as advance and so this FIR. On 16.11.2009, two Haryana Police Officers with Balkar Singh had gone to Mumbai to arrest the petitioner on the basis of a warrant issued by Sub Divisional Magistrate, Tohana. As per the petitioner, he never visited Fatehabad in his life at any point of time. He has further stated that he has never met with Balkar Singh in his life. It is accordingly urged that this FIR was a total concoction and was lodged only with an aim to pressurize and threaten the petitioner from appearing before the court against the respondent-accused persons. Rather, it is specifically urged that Balkar Singh was set up by Mohit Sharma and Shiv Kumar Sharma to stall the appearance of the petitioner to give evidence in this case. The petitioner claims to have in his possession a tape recorded conversation with Mr.Malhotra, Police Inspector at Punjab (SHO at the time of incident at Phillaur), who had wanted the petitioner to Criminal Misc.No.31530 of 2010 (O&M) :9 : settle the matter and not to appear and give evidence against the accused persons. The petitioner also has in his possession taped recorded conversation with one Mr.Vijay, Manager and Babuji owner of Hotel Blue Saphire, Delhi, where the Haryana Police had gone looking for the petitioner telling him that he should be careful before he goes to Jalandhar. As per the averment in the petition, the obvious inference was that if the petitioner went to Jalandhar to appear and give evidence, he could be arrested or even eliminated. The petitioner on his part approached Addl.Commissioner of Police, Mumbai and pleaded all these facts before him with a prayer to register an FIR against the accused for compelling him and threatening him not to give evidence. The petitioner has then referred to the fact that Haryana Police conducted an investigation in this FIR and finding it to be totally false has filed a cancellation/closure report on 23.12.2009 and has taken action to proceed against Balkar Singh under Section 182 IPC.
The petitioner would refer to the closure report annexed with the petition as Annexure P-10 to highlight that lodging of this FIR is clearly found to be related to the case filed by the petitioner against Mohit Sharma and others. It is recorded in the report under Section 173 Cr.P.C. that the petitioner had lodged this FIR against Mohit Sharma and eight others for robbery of diamonds worth Rs.3.52 crores, which fact has been studied by the investigating agency. During their visit to Phillaur, they came to learn from their sources that Mohit Sharma, respondent No.2, is friend of Harpreet Singh son of Baljeet Singh, resident of Barwala, District Patiala. This Harpreet Criminal Misc.No.31530 of 2010 (O&M) : 10 : Singh is a witness in the FIR lodged against the petitioner and is a maternal cousin brother of Balkar Singh, who has lodged this FIR. The finding accordingly is that from this it is clearly indicated that this case was registered with an intention to pressurise the complainant for settlement in case lodged by him against Mohit Sharma at Police Station Phillaur.
Mr.Cheema accordingly has urged that the accused persons have a reach in the neighbouring State as well, and, thus, they would have rather unending influence over the investigating agency in the State of Punjab. In this regard, Mr.Cheema has also highlighted the threats which were advanced to the petitioner and the action that he took against the respondents in this regard ultimately to depose before the court at Jalandhar.
The petitioner seems to be even making a complaint about some lethargy shown by the court in trying this case and giving handle to the prosecution to influence the course of trial and pressurize the witnesses. It is pointed out that the petitioner wanted to record his statement under Section 164 Cr.P.C. and for this purpose he appeared on various dates, i.e., 7.11.2008, 21.11.2008, 22.11.2008, 18.12.2008, 9.1.2009 and 10.1.2009. This statement was not recorded on the plea that there was no time to record the statement or that the concerned police officer was not present. It is also pointed out that despite presence of the petitioner on several occasions i.e. 8.5.2009, 27.5.2009, 5.6.2009, 11.7.2009, 30.7.2009 and 28.8.2009, his evidence and that of the other witnesses present was not recorded. It is alleged that during all this time, the petitioner Criminal Misc.No.31530 of 2010 (O&M) : 11 : was receiving threatening calls from the relatives and friends of main accused Mohit Sharma and was being told not to come to Jalandhar to give evidence. Threats were even of elimination. As per the petitioner, number of persons have approached him to settle the case and exonerate the accused persons by giving false evidence. On the basis of threat received, the petitioner reported to VP Road Police Station, Mumbai on 26.8.2009 and police has registered a report under Section 506 IPC. Even Mumbai Police has afforded protection to the petitioner on appreciation of the threat perception. This fact was also brought to the notice of District and Sessions Judge, Jalandhar and Hon'ble Chief Justice of this Court through a letter dated 5.9.2009. The petitioner had also prayed for action because Shiv Kumar Sharma is/was a very influential person in the hierarchy of Police in Punjab and yield great influence and power, which he was using to threaten the petitioner from appearing as a witness.
Without going into the veracity of the allegations made and keeping in view the fact that there is no objection coming from the respondent-accused persons, I consider it appropriate to transfer this case to court of competent jurisdiction in the State of Haryana. Accordingly, it is ordered that the present case in progress at Jalandhar be transferred to District Faridabad for the purpose of further proceedings. It would be appropriate for the Sessions Judge to keep this case for the purpose of trial before himself seeing the sensitive nature thereof. It would be for the Sessions Judge concerned to consider if the trial has ever been influenced in any unfair manner for which the witnesses have not come out with the Criminal Misc.No.31530 of 2010 (O&M) : 12 : truthful accounts and on that count, there is any need to examine or re-examine any witness. He would take appropriate decision accordingly. That would, I think, take care of the apprehension expressed by the petitioner to the effect that fair trial has not happened at Jalandhar.
Mr.R.S.Cheema, learned senior counsel, however, has not remained contend after pressing this prayer alone. He has beseeched this court to go further and deep into the issue and direct some enquiry to find out how the witnesses and the trial in this case has been influenced by a highly placed police officer and thereafter to direct action against all those who have either tried to interfere in the administration of justice or had purposely given false or fabricated or guarded evidence. As per the learned counsel, this would be the duty cast upon the court being the supervisory court having a responsibility to insure a fair trial within the four corners of its jurisdiction.
The counsel representing the respondent-accused were equally vehement and forceful in opposing this prayer primarily on the ground that any observation made by this court either in regard to the conduct of witnesses or for directing any enquiry against anyone would prejudice the accused persons, who are facing trial.
On his part and to further strengthen his submission, Mr.Cheema has placed before me a news item with the head line reading "Former VB SSP, others indicted for frame-up". This reference is to Mr.Shiv Kumar Sharma, who is indicted for fixing a Patwari for demanding Rs.20/- Government fee. Action Criminal Misc.No.31530 of 2010 (O&M) : 13 : recommended in this enquiry against Shiv Kumar Sharma is for lodging the FIR and special probe into these assets as is reported in this news item. Mr.Cheema seems to contend that such things are routine with Shiv Kumar Sharma and as such he obviously would be keen to help and save his son, who has got entangled in this serious web. Mr.Cheema has also highlighted the aspect of recovery of diamonds in this case, which were got recovered from the residence of Mohit Sharma, while he was in police custody. These diamonds were recovered from a socks which was stolen from the petitioner. These diamonds were got evaluated for Rs.3,52,07,296/-. As per Mr.Cheema, such serious offence indicating robbing of a person of this huge assets should not be allowed to be throttled in this manner.
These submissions apart, this court has to draw a balance and ought to desist from making any comment which may in any manner prejudice the trial of accused persons. At the same time, this court cannot also remain silent spectator if it finds that fair trial is not being held in this case. What happened recently in a case of police officer where this court ultimately had to order re-trial is too recent to forget. Reference here can be made to the case of Gurcharan Singh Pherurai and another Versus State of Punjab and others (CWP No.8707 of 2008), decided on 16 April, 2012, who was also a Senior Superintendent of Police and was accused of an offence relating to recovery of fake currency. Various witnesses appeared before the court and they resiled from their previous statements. Large number of the witnesses were the police officers, who had so resiled from their statements leading to acquittal of Criminal Misc.No.31530 of 2010 (O&M) : 14 : Gurcharan Singh Pherurai in the case. The court took suo-motu notice in this case and ultimately it revealed that the police witnesses and others had been pressured and coerced to resile from their previous statements. The Division Bench of this court taking stock of the entire situation has directed re-trial of the case. The action is also in progress against some of the police witnesses, who had resiled from their previous statements on being pressurised and for making statements in favour of the accused.
What is the fall out of a criminal case from hit and run accident in Delhi famously known as BMW case and the action that has followed against two prominent Advocates is also very recent to fade from memory. Equally important is to take note of some very telling observations made by the Hon'ble Supreme Court in connection with this case which was found relevant in the case of R.K.Anand Vs. Delhi High Court, 2009(8) SCC 106, which is the after effect of BMW case. Talking about the role of the High Courts, who are required to exercise supervisory jurisdiction over the courts under its jurisdiction, the Hon'ble Supreme Court has said that time has come to add another dimension to the supervisory jurisdiction and power of the High Court over its subordinate courts for monitoring and protection of criminal trials. As is observed in this case, every trial that fails due to external interference is a tragedy for the victim(s) of a crime. It is also observed that more importantly, every frustrated trial defies and mocks the society based on the rule of law and that every subverted trial leaves a scar on the criminal justice system. As per the Court, repeated scars make the system Criminal Misc.No.31530 of 2010 (O&M) : 15 : unrecognisable and it then loses the trust and the confidence of the people. The Hon'ble Supreme Court has clearly not approved the indifferent and passive attitude shown by the High Court in the cases. The Court has noticed that every now and then one would come across reports of investigation deliberately botched up or of the trial being hijacked by some powerful and influential accused, either by buying over or intimidating witnesses or by creating insurmountable impediments for the trial court and not allowing the trial to proceed. The Court perhaps has noticed the concern that unfortunately such reports would seldom. If ever, be taken note of by the collective consciousness of the Court. It is observed that the High Court would continue to carry on its business as if everything under it was proceeding normally and smoothly. Such trials, as per the Hon'ble Supreme Court, would fail because it was not protected from interferences. Further elaborating, the Hon'ble Court has noted that every failed trial is also, in a manner of speaking, a negative comment on the State's High Court which is entrusted with responsibility of superintendence, supervision and control over the lower courts. The Court has then gone on to highlight the role and responsibility of the High Court as under:-
"It is, therefore, high time for the High Courts to assume a more proactive role in such matters. A step in time by the High court can save a criminal case from going astray. An enquiry from the High Court Registry to the quarters concerned and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal Criminal Misc.No.31530 of 2010 (O&M) : 16 : case from outside interference. In view few cases where more positive intervention is called for, if the matter is at the stage of investigation the High Court may call for status report and progress reports from police headquarter or the Superintendent of Police concerned. That alone would provide sufficient stipulation and pressure for a fair investigation of the case."
The responsibility entrusted on this court to exercise superintendence and supervision over the courts within its jurisdiction obviously cannot be ignored. At the same time, it is also to be seen that any observation made by this court should not lead to any undue influence over the mind of the court, which is holding a trial. Fair trial is for the prosecution and equally for the person who is accused of an offence. No doubt, the Hon'ble Supreme Court has desired of the High Courts to assume more proactive roles and to see that steps are taken so that trial does not go astray. Mere taking note of the requirement is enough indication for the trial court to be on guard and to see that no outside interference intervene in this trial and if there is such influence over the course of trial to take remedial measures. The observations noted here and made above would be enough stimula for the court to ensure that the parties before it (be a prosecution or defence) do not suffer in any manner and the trial is not subverted in any manner to leave a scar on the criminal justice system or on the society.
The Hon'ble Supreme Court has not only advocated such monitoring on the administrative side but has even observed that if Criminal Misc.No.31530 of 2010 (O&M) : 17 : the High Court is not satisfied by the status/progress reports then it may consider it taking up the matter on judicial side. The role of the High court when the case reaches the stage of trial has been referred to be far wider. In this regard it is observed that:-
"It can assign the trial to some judicial officer who has made a reputation for independence and integrity. It may fix the venue of the trial at a proper place where the scope for any external interference may be eliminated or minimised. It can give effective directions for protection of witnesses and victims and their families. It can ensure a speedy conclusion of the trial by directing the trial court to take up the matter on a day-to-day basis."
Advocating monitoring of the cases by the High Court, the Hon'ble Supreme Court has observed as under:-
"The High Court has got ample powers for all this both on the judicial and administrative sides. Article 227 of the Constitution of India that gives the High court the authority of superintendence over the subordinate courts has great dynamism and now is the time to add to it another dimension for monitoring and protection of criminal trials. Similarly, Article 235 of the Constitution that vests the High court with the power of control over subordinate courts should also include a positive element. It should not be confined only to posting, transfer and promotion of the officers of the subordinate judiciary. The Criminal Misc.No.31530 of 2010 (O&M) : 18 : power of control should also be exercised to protect them from external inference that may sometimes appear overpowering to them and to support them to discharge their duties fearlessly."
Trial in this case has been directed to be transferred to Faridabad with further direction to the Sessions Judge to try the case himself. By issuing these directions, an effort has been made to remove or to minimise the scope of external interference. The further direction may be called to protect witnesses and the victim/complainant. Superintendent of Police, Faridabad is directed to take adequate measures to afford protection to the petitioner, whenever he has to appear before the trial court. Public Prosecutor would apply himself to the case and see if any witness has made any intended or unintended efforts to scuttle the prosecution due to any external interference. He shall not hesitate to take effective steps if he finds that the witnesses are suppressing the truth. Everyone concerned with the trial has to keep in mind that this court is keeping a watch and would not hesitate to protect this trial from external interferences. It would also be necessary for the Sessions Judge to conclude this trial with speed and if otherwise convenient to record the evidence by giving short dates or on day-to-day basis, if possible. Everyone concerned has to ensure that this trial does not become a tragedy for victim and leave a scar on criminal justice system. Doing more than this may not be called for at this stage. Directing any enquiry at this stage would not be appropriate and it is left to the discretion of the Sessions Judge to see and decide if any Criminal Misc.No.31530 of 2010 (O&M) : 19 : witness has made an attempt to suppress the truth or has made an attempt to favour a particular side due to any undue consideration, like intimidation or being bought etc. The court then may take necessary action in this regard. The Court where the trial is now to take place ought to discharge its duties fearlessly and ensure a fair trial.
The present petition is accordingly disposed of.
May 23, 2012 ( RANJIT SINGH ) ramesh JUDGE