State vs Ram Sarup Sabharwal And Anr.
1989 Latest Caselaw 463 Del

JUDGMENT

R.L. Gupta, J.

1. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred 'as the Code') has been filed on behalf of the State against two orders dated 18th July, 1989 and 3rd August, 1989 passed by Shri P.R. Thakur, Addl. Sessions Judge, New Delhi summoning Shri Ved Marwaha, former Commissioner of Police and Shri Vijay Karan, present Commissioner of Police as defense witnesses at the request of the respondent accused. The accused-respondent is facing trial under Sections 3, 5 and 9 of Official Secrets Act (hereinafter referred as 'the Act') read with Section 120-B of the Indian Penal Code. The prosecution examined 44 witnesses. Thereafter the statement of the accused-respondent was recorded under Section 313 of the Code. Then he filed a list of 22 witnesses on 15th July, 1989 whom he wanted to examine in defense. On 17th July, 1989 he suggested the names of the witnesses Mr. Ved Marwaha and Mr. Vijay Karan to be added in the list of defense witnesses.

2. The grievance is that the defense did not spell out the purpose for which these two senior police officers were to be summoned and examined as defense witnesses. Further that no reason has been given by the learned trial court as to how the evidence of these two witnesses was relevant or necessary because they had not taken any part in the investigation in this case against the respondent-accused.

3. This application has been strongly opposed on behalf of the respondent-accused and I have heard arguments advanced by Shri G. Ramaswami, Addl. Solicitor General of India for the State and Shri P.N. Lekhi for the respondent-accused.

4. Since the discussion in respect of the present Police Commissioner Shri Vijay Karan is short, I would first like to deal with the relevancy of his being examined as a witness in defense. My attention in this respect has been drawn by Shri P.N. Lekhi to the fact that he had allegedly given a press interview published in the Hindustan Times dated March 16, 1989 in which he had stated that the ban on third degree method used by the police was paying dividends. According to the learned counsel this amounted to an admission on the part of: the present Police Commissioner that actually third degree methods were being used by police and that is why this practice was sought to be stopped. I have given my very careful consideration to come to a conclusion whether this circumstance in itself will be sufficient to hold that it was necessary for the defense to examine him as a witness. The first order by the learned trial court dated 18th July, 1989 also mentions only this fact of the alleged press inter-view/statement having been made by Shri Vijay Karan, Commissioner of Police which necessitated his examination as a defense witness. So far as the use of third degree methods in extorting confessional statements from the accused persons is concerned the same seems to have been prevalent not only in this country but also in other countries of the world since long. In England a confession made to a police officer is not in admissible by reason of its having been made to a police officer although it has been held that if a confession is made by an accused in consequence of any continuous interrogation by the police, the same is inadmissible. However, in India under Section 25 of the Indian Evidence Act, 1872, no confession made to a police officer can be proved as against a person accused of any offence. Even if the case of the respondents-accused before the learned trial court is that some confessional statement was extorted from him by any police officer, the same would be inadmissible in evidence in view of Section 25 of the Indian Evidence Act, Shri P.N. Lekhi has not drawn my attention to any circumstance on account of which the examination of Shri Vijay Karan, Commissioner of Police would be necessary and relevant in that context. He has also not drawn ray attention to any other circumstance by which it could be visualised that at any stage of the investigation Mr. Vijay Karan took part in the investigation of this case. Therefore I am of the opinion that is the absence of all these circumstances. I am unable to see how proof of any press statement/interview made by Shri Vijay Karan could advance cause of justice and in that manner would help the respondents-accused in his defense. Moreover, it may be noted that Shri Vijay Karan was not the Commissioner of Police when FIR was recorded against the respondent-accused. Even the report under Section 173 of the Code was filed against the respondent-accused on 24-1-86 when also Shri Vijay Karan, Commissioner of Police was not posted as such in Delhi. Therefore, at no stage of the investigation of the ease against the respondent-accused, Shri Vijay Karan was posted in Delhi as the Commissioner of Police.

5. Under Section 233 of the Code when an accused is not acquitted under Section 232 of the Code. He has to be called upon to enter on his defense and adduce any evidence he may have in support thereof. Under Section 233(3) of the Code a process compelling the attendance of any such witness shall be issued unless the Judge considers, for reasons to be recorded, that such request should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. I do not find any conceivable reason which could persuade me to hold that examination of Shri Vijay Karan as a defense witness would serve the cause of justice or his examination would be necessary for establishing any part of the defense of the respondent-accused. Rather his evidence as a defense witness would simply delay the proceedings and defeat the ends of justice.

6. Let us now examine the necessity of Shri Ved Marwaha, the former Commissioner of Police, being examined as a defense witness. As is apparent from the order dated 18-7-89 of the learned trial court, Shri P.N. Lekhi argued in this respect that in the context of prosecution evidence that had come on record and particularly in view of the statement of the Chief Investigating Officer Shri R.S. Khurana, it was necessary to summon both these witnesses in defense because Shri Ved Marwaha was the then Commissioner of Police at the time of arrest of the accused, Ram Sarup. The order dated 18-7-89 led the prosecution to file another application dated 31-7-89 for recalling the order dated 18-7-89 in respect of both the aforesaid witnesses. The second order dated 3-8-89 is based on two facts. First is that the court was not competent to recall its own earlier judicial order. The other reason given is that, "It must be put on record that this is not an ordinary prosecution, and the charges levelled against the accused are not ordinary. Important public figures like Members of Parliament and Ex-Members of Parliament have been examined as the witnesses not only by the prosecution but also by the defense. There is no question of publicity much less cheap publicity, because the proceedings of this case have been held in camera and no part of the proceedings can be publicised. There is no question of harassment to the two witnesses because the defense of the accused Ram Swarup is such as requires examination of the two witnesses in question. Shri P.N. Lekhi, Sr. Advocate referred to Sections 6, 15 and 124 of the Delhi Police Act, 1978 and also some provisions of the Official Secrets Act, 1923 to exemplify as to how the two witnesses were not only necessary and relevant but also essential for proper defense of the accused Ram Swarup."

7. So far as the present Police Commissioner is concerned, I have already given my reasons above as to how his statement in defense is neither necessary nor relevant. But so far as the previous police Commissioner Shri Ved Marwaha is concerned, I am of the view that the order of the learned trial court in the background of the witnesses examined by both sides and also the fact that the same was essential for the proper defense of the accused, it cannot be said that the learned trial court has exercised its judicial discretion in an improper manner. It may be noted that, as brought to my notice, the prosecution evidence comprised of voluminous evidence running into more than a 1000 pages. The whole evidence in this case has been recorded by the same trial court. All this evidence must have created an impact upon the mind of the learned trial court on account of which it stated that in the circumstances of the case it was essential to record the statement of Shri Ved Marwaha as a defense witness in the present case.

8. Learned counsel Shri G. Ramaswami argued that if a Commissioner of Police was summoned to give evidence as a defense witness only on account of the fact that no prosecution witness was prepared to identify the signatures of Shri O.P. Swami, Inspector of Police on a notice issued by him to Mrs. Anita Sethi, the then Commissioner of Police would have to appear in thousands of such cases which were investigated during his tenure as a Commissioner of Police. However the fact remains that none of the prosecution witnesses was prepared to either identify the signatures of Shri O.P. Swami on that notice or even to state about his place of posting at present. Since no witness Was prepared to even name Mr. O.P. Swami or identify his signatures, the learned trial court considered it essential to examine the Commissioner of Police as a witness. Learned counsel for the parties also drew my attention to a list of documents furnished on behalf of the respondent-accused to be brought by the two Commissioners of Police, I have carefully gone through that list of documents Annexure E from pages 26 to 33 of the file. Documents at serial Nos. 1 to 7 sought to be summoned are some orders passed between 4-10-67 and October, 1985. At serial No. 6 is mentioned, "Order No. Nil dated Nil empowering Nil". It is beyond my comprehension to understand the relevancy of all these orders except one at S. No. 3 which is alleged to be referred in a notice served by Sh. O.P. Swami requesting Mrs. Anita Sethi to attend on 21-9-85 at Lodhi Road. The document at serial No. 8 refers to some Log Books and registered numbers of the Cars detailed on 21-9-85 Along with the names of the Police Officers and I. B. Officers to effect service on 21-9-85 on the accused. I am of the view that the summoning of such Log Books through the Commissioner of Police is neither essential nor relevant to substantiate the defense of the accused. Documents at S. No. 9 mentions a report dated 3-8-89 lodged by Sh. P.N. Lekhi when he allegedly was not allowed to interview the accused. Summoning of this report through the Police Commissioner also is not essential. The accused could have proved this report by summoning any official of the Police station defense Colony. Similarly documents at S. Nos. 10 to 13 also do not appear to be necessary to be summoned through the Police Commissioner. Item No. 14 is about the statement of the accused recorded on 4-8-89 by a Sub Inspector of Police Station defense Colony. At item No. 15 is mentioned the record of copies of requests/ applications made to various DCPs Police Stations for issuance of search warrants in connection with the present FIR. Item No. 17 mentions the Rules of Conduct of business framed by Delhi Administration prescribing channel of Communication between Delhi Police and Union Home Ministry and other Ministries of the Central Government. At item No. 18 is mentioned a file containing letter dated 2-11-1986 granting sanction to prosecute the accused. Items 20 and 21 refer to certain Rules and Orders issued by Commissioner of Police and correspondence exchanged between Delhi Police and Director (Enforcement). Items 23 and 24 refer to certain records of Police Station Tughlak Road about the arrival and departure of certain officers. At item No. 26 is mentioned a police lock up register maintained in respect of the lock up in the Police Headquarter containing the lock up entires between 27-9-85 to 14-10-85. At item No. 28 is mentioned the Bio-data and service record of DCP Deep Chand, Inspector O.P. Swaray and Inspector Pratap Singh. Item No. 30 refers to correspondence, if any, exchanged with the Ministry of External Affairs regarding the diplomats named in the Police report filed by Delhi Police against the accused. Items 31 and 32 refer to list of names of KGB Agents and CIA Agents expelled from India. Items 33 and 34 refer to French Agents and Russian, East German and Polish Agents expelled from India. Item No. 36 refers to permission/official sanction granted to the Police Party to take the respondent-accused by the morning flight on 8th November, 1985 to Bombay and to bring him back by the evening flight on 9th November, 1985 to Delhi along with the letter to the disbursing authority forwarding TA and DA bills of the members of that Police Party for doing Delhi-Bombay around trip for payment. I am of the firm view that the summoning of the above referred documents/ files/ lists through the Police Commissioner is neither necessary nor desirable.

9. So far as the documents at S. Nos 3, 16, 19, 22, 25, 27, 29 and 35 are concerned, I have not been able to make my mind whether these will be necessary or not for being brought by the Commissioner of Police. Therefore, the learned trial court while recording the statement of Sh. Ved Marwaha may thoroughly satisfy itself whether the defense can be permitted to examine Sh. Ved Marwaha with reference to any of those files/documents.

10. A preliminary objection was also raised by Sh. P.N. Lekhi that this petition under Section 482 of the Code is not at all maintainable because Section 397(2) bars the filing of a revision petition in relation to interlocutory orders passed in any appeal, enquiry or trial. According to him the order of summoning the two police Commissioners in defense was simply an interlocutory order and since a revision against interlocutory order is barred, the State could not seek shelter under Section 482 of the Code to challenge an interlocutory order. In reply to that argument, learned counsel Sh. G. Ramaswami pointed out that the order of summoning the Police Commissioners as defense witnesses did not actually amount to an interlocutory order. According to him the mischief of summoning Police Commissioners as defense witnesses cannot be undone later on whereas an accused can always claim benefit of the summoning or non-summoning or examination or non-examination of any prosecution witness in case of his conviction because in that case an argument will always be open to the accused that either by examination or non-examination of a particular prosecution witness, the proceedings in the trial court stood vitiated. In those circumstances if the appellate court comes to the conclusion that the trial actually stood vitiated then it can certainly grant relief to the accused. Therefore, he has argued that the summoning of the Police Commissioners in defense is not in the nature of an interlocutory order on account of which the prosecution could later on claim any relief. My attention has been drawn to the case of Amar Nath and Ors. v. State of Haryana and Ors., It was laid down in this case as under:--

"An harmonious construction of Sections 397 and 482 Would lead to the irresistible conclusion that, where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers."

The above decision was given by a Division Bench comprising of Two Hon'ble Judges. However, Hon'ble the Supreme Court in the case of Madhu Limave v. State of Maharashtra, . (The Bench comprising of three Hon'ble Judges) laid down as follow :--

"On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court:" The bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. Bat then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court."

11. The aforesaid case of Madhu Limaye (supra) therefore clearly shows that although it may not be proper for the High Court to interfere against an order purely of an interlocutory nature but if the interference is actually called for to prevent the abuse of process of the Court or to meet the ends of justice, then certainly limitation contained in Section 397(2) will not operate and detract from the inherent powers of the Court contained in Section 482 of the Code. Therefore I am of the view that it will depend upon the facts and circumstances of each case and the High Court has to examine those facts in order to come to a conclusion whether in the peculiar facts and circumstances the impugned order requires to be set aside because it may be necessary to prevent the abuse of process of the court or to meet the ends of justice. Therefore, I am of the view that the preliminary objection raised by Mr. P.N. Lekhi cannot be sustained.

12. Except writing that it would be in the interest of justice that Mr. Vijay Karan should be called in defense, the learned trial court has not given any plausible reason on account of which I could persuade myself to uphold the view of the learned trial court.

13. I have given my most careful consideration to the request of the respondent-accused for summoning the above referred various documents through the Commissioner of Police. I am of the definite view that all the above referred documents except at S. Nos. 3, 16, 19, 22, 25, 27, 29 and 35 have not, even the remotest connection with the defense of the accused. They are not at all essential for throwing any light in this case, and permission to summon documents other than above would amount to an abuse of the process of the Court.

14. Therefore, the order of the learned trial court is partly set aside and modified to the extent that it will not summon Shri Vijay Karan, but will summon only Shri Ved Marwaha and that too with the documents etc. referred above and will also bear the observations of this Court in para-9 of this judgment while recording his evidence.