Delhi District Court
Cbi vs . Santoshanand Etc. on 9 July, 2012
IN THE COURT OF SH. VINOD GOEL, ADDL. SESSIONS JUDGE,
(EAST), KARKARDOOMA COURTS, DELHI.
In re:-
SC No. 1/2006
RC No. 1/75
CBI Vs. Santoshanand etc.
Order
1.Vide this order, I intend to deal with an application of the accused Sudevananda Avadhuta under Section 306/308 Cr.P.C for production of Approver PW2 Shri Vikram @ Jaldhar Dass for his prosecution under Section 308 Cr.P.C and for expunging his evidence against the accused persons. I also intend to deal with the request of the accused Gopalji for seeking a further date to examine Sh. Dhrub Jyoti Singh as his defence witness.
2. It is pleaded by the accused Sudevanand Avadhuta in his application u/s 306/308 Cr.P.C. that in Criminal Appeal Nos.436 & 443/76, he has come to know that PW1 Shri Vikram @ Jaldhar Dass, who is PW2 in this case, is not traceable despite all efforts of CBI and the Hon'ble High Court has ordered for producing him for his cross-examination as per the directions of the Hon'ble Supreme Court in Criminal Appeal No. 174/2012. It is also pleaded that approver PW2 Vikram is on bail and since he has violated the conditions of bail, he has to be prosecuted u/s 308 Cr.P.C and evidence given by him should be expunged and the same should not be read against the accused persons.
3. Reply to this application has been filed by CBI contesting the SC no. 1/2006 CBI Vs. Santoshanand RC no. 1/75 Order 9.7.2012 Page 1 of 10 said application and seeking its dismissal. It is pleaded by CBI that they have submitted in the Hon'ble High Court that all possible efforts are being made by CBI to trace the whereabouts of PW2 Vikram @ Jaldhar Dass and sought four weeks time from the Hon'ble High Court and the next date of hearing is fixed as 30.08.2012. It is also pleaded that it is pre-mature conclusion on the part of the applicant that the credentials of Vikram @ Jaldhar Dass and his surety are in doubt and the considerable time gap of 27 years during 1985 to 2012 is to be considered. It is pleaded that it is unfair to question the bail granted to the approver as the same has been granted by the Hon'ble High Court. It is also pleaded that it is pre-mature to conclude that Shri Jaldhar Dass @ Vikram has run away and breached the conditions of the bail and under section 308 of Cr.P.C., an approver can be prosecuted only on the certificate of the prosecutor that such person has either by willfully concealing anything essential or by giving false evidence, has not complied with the conditions on which the tender was made, and as approver Vikram @ Jaldhar Dass has complied with all the conditions of the pardon, there is no question of his prosecution u/s 308 Cr.P.C and mere his non-availability after 27 years is no ground for his prosecution. It is also pleaded that approver Vikram Singh @ Jaldhar Dass is not required in the present case as his statement has already been concluded long back.
4. It was argued by the Ld. counsel for the applicant/accused Shri Firoz Ahmed Advocate on 8.6.2012 that since the approver Vikram @ Jaldhar Dass has been granted bail and one of the conditions of the bail was that he will not leave Delhi without the permission of the Court and his address was found fake and he is not traceable and his surety has also given SC no. 1/2006 CBI Vs. Santoshanand RC no. 1/75 Order 9.7.2012 Page 2 of 10 fake address, PW-2 Vikram @ Jaldhar Dass is liable to be prosecuted under Section 308 Cr.PC. He referred Section 308 to plead that PW2 Vikram @ Jaldhar Dass has willfully concealed the essential fact i.e. his address, and hence evidence given by him in this court should not be read against the accused persons and his evidence should be expunged from the record. This court has asked the Ld. counsel whether they have disputed his identity at the time of his cross examination when he was in judicial custody and has given address of his native village. The Ld. counsel sought time since his deposition was running into 338 pages. On next i.e. on 4.7.2012, when this court started hearing arguments, Ld. Special Public Prosecutor referred to the deposition of PW-2 Vikram @ Jaldhar Dass to the effect that his identity was never disputed during cross examination by either of the accused and he was in judicial custody at that time and he has given address of his native village and the approver has not concealed his address and Section 308 Cr.PC does not apply. This fact that his identify was not disputed during his cross examination by any accused, has not been challenged by the Ld. Defence counsels. However Sh. Arvind Kumar, Advocate, argued on behalf of the accused/applicant Sudevanand on 4.7.2012 that this court must ensure that the approver is available under the supervision and control of this court till the trial is over and presence of accused may be required if it is brought to the notice of the court at the time of final arguments that approver PW-2 Vikram @ Jaldhar Dass has given false evidence.
5. The Ld. Special Public Prosecutor submitted that in his bail bond, the accused Vikram @ Jaldhar Dass has given his address as "c/o SC no. 1/2006 CBI Vs. Santoshanand RC no. 1/75 Order 9.7.2012 Page 3 of 10 M.S. Choudhary, Q. L-1/201, DDA Flats, Kalkaji, New Delhi, and now on verification, it is found that one Mr. Rajesh Gandhi is living at L-1/201 (A), DDA Flats, Kalkaji, New Delhi since 1991 and Sh. Gandhi purchased this flat from one Sh. R. Gupta and efforts are being made to locate Sh. R. Gupta. It is also submitted that one Sh. Pawan Singh has been residing in Flat no. L-1/201(B), DDA Flats, Kalkaji, New Delhi and he has been residing in the flat since beginning. The surety of the approver namely Sh. Chander Prakash has given his residential address in the surety bond as "2433, Jahangir Puri, Delhi-33" and that Chander Prakash has not given any block number in his address, and now on verification it is found that such number of the house is found only in "Block no. EE" where one Sh. Teju Singh was found residing who purchased the same from Sh. Suresh Yadav and that Sh. Suresh Yadav had purchased it on 28.12.2004 from one Sh. Ajay Kumar who is son of original allottee Sh. Babu Lal and efforts are being made to locate Sh. Ajay Kumar. Along with the bail bond, surety Sh. Chander Prakash has filed his affidavit to the effect that he has been working as Salesman with M/s. Usha Electricals R-2/1A, Bindapur Road, Uttam Nagar, Prajapat Colony, Delhi and now on verification it was found that no such address was existing. He also argued that statement of Approver PW-2 Sh. Vikram @ Jaldhar Dass cannot be expunged and no case is made out for his prosecution under Section 308 Cr.PC. However, the Ld. Special Public Prosecutor lastly submitted that since Approver and his surety are not available at the given addresses, process may be issued to them for appearance in the court either in the form of notice/summons or warrants.
SC no. 1/2006CBI Vs. Santoshanand RC no. 1/75 Order 9.7.2012 Page 4 of 10
6. I have heard the Ld. Special Public Prosecutor Sh. N.K. Sharma and the Ld. defence counsels and very carefully perused the material available on record.
7. The evidence of approver PW-2 Vikram @ Jaldhar Dass was recorded by my Ld. Predecessor on various dates from 28.4.1981 and he was cross examined at length on several dates by the Ld. defence counsels and his cross examination was completed on 13.11.1981. His statement runs into 338 pages. Subsequent to his deposition, vide order dated 18.10.1985, the Hon'ble High court of Delhi has directed release of Approver PW-2 Vikram @ Jaldhar Dass on furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the trial court subject to the condition that he shall remain in Delhi and shall not leave Delhi without permission of the trial court till the case remains pending with the trial court. Pursuant to the direction of the Hon'ble High Court, my Ld. Predecessor had admitted him to bail by accepting his bail bonds on 28.11.1985. In his bail bonds, the approver (PW-2) Vikram @ Jaldhar Dass has given his address "c/o M.S. Choudhary, L-1/201, DDA Flats, Kalkaji, New Delhi" and "village Terar, PS Sinholla, Distt. Bhagalpur, Bihar" and he mentioned that he shall not leave Delhi without the permission of the court. His surety Chander Prakash son of Kishan Chand mentioned his address as "2433, Jahangir Puri, Delhi-33". He has also given his undertaking in the surety bond that the accused will not leave Delhi till disposal of the case and in case he leaves Delhi, he shall pay the bail amount of Rs.10,000/-. The surety has been identified by one "Sh. L.K. Sardana, Advocate". The surety has also furnished his affidavit.
SC no. 1/2006CBI Vs. Santoshanand RC no. 1/75 Order 9.7.2012 Page 5 of 10
8. Under sub Section (4) of Section 306 Cr.PC, every person accepting a tender of pardon made under sub Section (1) shall unless he is already on bail, be detained in custody until termination of the trial. It has been held by Hon'ble Supreme Court in Suresh Chand Bahri Vs. State of Bihar, AIR 1994 SC 2420 that the dominant object of requiring of an approver to be detained in custody until the direction of the trial court is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage, resentment of his associates in a crime to whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from the custody. It is for these reasons that clause (b) of Section 306 (4) casts a duty on the court to keep the approver under detention till the termination of the trial. But one thing is clear that release of an approver on bail by the Hon'ble High Court would not in any way affect the validity of the pardon granted to the Approver.
9. Under sub section (1) of Section 308 Cr.PC where the public prosecutor certifies that in his opinion such person has, either by willfully concealing anything essential or by giving false evidence, not complied with the conditions on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence for which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence. The statement of Approver PW-2 Vikram @ Jaldhar Dass was recorded on various dates by my Ld. Predecessor from 28.4.1981 to 13.11.1981 and he SC no. 1/2006 CBI Vs. Santoshanand RC no. 1/75 Order 9.7.2012 Page 6 of 10 has given address of his native village in State of Bihar and he was in judicial custody. His address or particulars or his identity was never challenged by any accused during his long cross examination. So, in his deposition he has not concealed his particulars or address. Subsequently, the Approver PW-2 Vikram @ Jaldhar was admitted to bail on 28.11.1985 by my Ld. Predecessor pursuant to the direction of the Hon'ble High Court dated 18.10.1985. In his bail bonds furnished in the court, he has given his Delhi address obviously after his deposition was recorded. In these circumstances, there is no force in the arguments of the Ld. counsel for the applicant for expunging the statement of PW-2 Vikram @ Jaldhar Dass or for his prosecution under Section 308 Cr.PC. At this stage, the presence of Approver PW-2 Vikram @ Jaldhar Dass is not required by this court as his deposition has already been completed on 13.11.1981. But trial of the case is not over and he was not to leave Delhi without permission of the court as directed by Hon'ble High Court vide order dated 18.10.1985. It is clear from the stand of CBI that neither the approver Vikram @ Jaldhar Dass nor his surety Chander Prakash was found available at the given addresses. After furnishing the bail bonds neither the said Approver nor the surety informed this court about the change of their addresses. In the circumstances, the bail bond furnished by the Approver Vikram @ Jaldhar Dass and surety bond furnished by his surety Chander Prakash are ordered to be forfeited to the State. Bailable warrants be issued against the approver PW-2 Vikram @ Jaldhar Dass and show cause notice be issued to his surety Chander Prakash under Section 446 Cr.PC. Notice be also issued to the identifier of the surety namely Sh. L.K. Sardana, Advocate. It is made SC no. 1/2006 CBI Vs. Santoshanand RC no. 1/75 Order 9.7.2012 Page 7 of 10 clear that issuance of warrants against approver and notice to his surety under Section 446 Cr.PC and notice to the identifier of the surety shall not in any way affect the trial of accused persons which shall continue in accordance with law.
10. Now, I deal with the request of accused Gopalji for adjournment of the case for defence evidence. The accused Gopalji had filed a list of 4 witnesses to examine in his defence and they are (i) Handwriting Expert Sh. Deepak Jain, (ii) Sh. Bhupendra Narayan Singh, the then Personal Assistant of MLA late Sh. Uma Shankar Singh, resident of Banka (Bihar), (iii) Sh. Dhrub Jyoti Singh, resident of Barail, District Supaul (Bihar) to prove that accused Gopalji was arrested from Patna and
(iv) Sh. Samrendra Narayan Singh resident of Barail, District Supaul (Bihar), to prove that accused Gopalji was arrested from the house of his father late Sh. Uma Shankar Singh, MLA. The accused Gopalji has already examined DW-41 Sh. Bhupendra Narayan Singh and DW-42 Sh. Samrendra Narayan Singh on 24.3.2012, 24.4.2012 & 11.5.2012 on the point that accused Gopalji was arrested from the house of MLA late Sh. Uma Shankar Singh. On the same point, he also wants to examine Sh. Dhrub Jyoti Singh as defence witness. The process has been issued to summon Sh. Dhrub Jyoti Singh for several dates. For 23.2.2012 it was reported on the summons of DW Dhrub Jyoti Singh that he does not reside at the given address but with his son Sh. B.N. Singh in Himachal Pradesh. He was directed to furnish the correct addresses of the DWs within two days and he stated that he will bring the defence witnesses at his own responsibility and this court has also directed the prosecution to serve the SC no. 1/2006 CBI Vs. Santoshanand RC no. 1/75 Order 9.7.2012 Page 8 of 10 witnesses with the summons. Again for 12.3.2012, the summons of DW Dhrub Jyoti Singh received back with the report that he had gone to Himachal Pradesh to look after his wife and grand daughter and last opportunity was given for defence evidence on 24.3.2012 at his responsibility as requested. Further on 24.3.2012, the summons of DW- Dhrub Jyoti Singh received back unserved with the report that he has gone to State of Himachal Pradesh to see his ailing wife and the Ld. counsel requested time for at least 20-25 days to bring the witnesses from the State of Bihar and he stated that either he will bring the witnesses of his own or will close the evidence and as such the case was adjourned to 24.4.2012. On 24.4.2012 it was reported by Sh. Anuj Kumar, Advocate, for accused Gopalji that DW Dhrub Jyoti Singh has gone to Mumbai with his wife for her treatment of Cancer and he had taken railway reservation for 10.5.2012 to leave for New Delhi and he would reach Delhi on 11.5.2012(Evening) and on the request of the Ld. defence counsel, the case was adjourned to 16.5.2012 for defence evidence. However, it was reported on 16.05.2012 by the Ld. defence counsel Sh. Anuj Kumar, Advocate, that on the same night of the service of summons on DW-Dhrub Jyoti Singh, he suffered brain hemorrhage and paralytic attack and sought two months time. On 31.5.2012, it was stated by the Ld. counsel for accused Gopalji that DW Dhrub Jyoti Singh has been discharged from the hospital and is in a position to depose and they will examine him in the first week of July 2010 and they will bring him at their own responsibility. The court directed to give dasti summons of DW Dhrub Jyoti Singh to accused Gopalji and prosecution was also directed to serve DW Dhrub Jyoti Singh with SC no. 1/2006 CBI Vs. Santoshanand RC no. 1/75 Order 9.7.2012 Page 9 of 10 summons for 4.7.2012. On 4.7.2012, the summon of DW-Dhrub Jyoti Singh received back with the report that he is lying admitted in PGI Hospital at Chandigarh for treatment of his brain hemorrhage. The accused Gopalji has already examined two witnesses namely DW41-Bhupender Narayan and DW42-Samrendra Narayan Singh on the point that he was arrested from the house of late Uma Shanker Singh, the then MLA and on the same point he wants to examine DW-Dhrub Jyoti Singh. The Ld. counsel for the accused Gopalji has stated on 24.3.2012 that either he will bring the witnesses on the next date of hearing or will close the defence evidence. Moreover, this witness has suffered brain hemorrhage and paralytic attack and it is not known when he would be medically fit to come to Delhi to depose. However The Ld. Defence counsel Sh Anuj Kumar insisted for his summoning. It appears that accused Gopalji intends to delay the just decision of the case and defeat the ends of justice for pressing for summoning of DW-Dhrub Jyoti Singh and I do not find any justification for summoning of DW-Dhrub Jyoti Singh. The accused Gopalji has not prayed for examining any other witness. As such defence evidence on behalf of accused Gopalji is hereby closed. Other accused persons have already closed their defence evidence.
Announced in open Court 09.7.2012 (Vinod Goel) Addl. Sessions Judge, (East District), KKD Courts, Delhi.
SC no. 1/2006CBI Vs. Santoshanand RC no. 1/75 Order 9.7.2012 Page 10 of 10