Association Of Victims Of The ... vs Sushil Ansal And Ors.
2006 Latest Caselaw 837 Del

JUDGMENT

R.C. Jain, J.

Page 1926

1. The petitioners, an Association of victims of the Uphaar tragedy (AYUT), have filed these petitions; one under Section 439(2) read with Section 482 Page 1927 PC seeking cancellation of bail of the respondents/accused persons; namely Mr.Sushil Ansal, Mr.Gopal Ansal and Mr.H.S.Panwar, who along with others, are facing trial for the offence under Sections 304/304A/337/338/36 IPC read with Section 14 of the Cinematograph Act in a case pending before the court of learned Additional Sessions Judge, New Delhi; and the other under Section 482 CrPC for a direction/ or registration of a criminal case (FIR ) against the offenders for tampering with the documents in judicial custody.

2. The relevant facts, which may be noticed for answering these petitions are that on the fateful date of 13.6.1997, a devastating fire occurred at Uphaar Theatres, New Delhi, which took a toll of 59 human lives, including women and children, besides leaving a large number of persons injured. A case RC 3(S)/97/SIC.IV/CBI/ND under Sections 304/304A/337/338/36 IPC and Section 14 of the Cinematograph Act was registered and investigation taken up by the Central Bureau of Investigation (CBI). After completion of investigation, CBI submitted a charge-sheet against several accused persons, including accused-Mr.Sushil Ansal, Mr.Gopal Ansal and Mr.H.S.Panwar, the respondents herein. The trial against the accused persons was proceeded with and charges were ordered to be framed against the accused persons. Aggrieved by the said order of the learned trial court framing the charge, the accused persons-Mr.Sushil Ansal and others challenged the said order by way of Criminal Revision Petitions No. 238/01 and 175/01 before this Court, but without success. Thereafter, the trial proceed further and when in January, 2003 the trial of the accused persons was at a sufficiently advanced stage, the Public Prosecutor, in charge of the prosecution, noticed that several important documents which were seized by the investigating agency during the course of investigation and which were filed along with the charge-sheet and which formed part of the judicial record, were missing from the record of the case while some other documents had been tampered with and/or mutilated by tearing of a portion of the document(s) or by sprinkling ink etc. so as to deface the document(s). Vide an application dated 13.1.2003, the learned Public Prosecutor brought the factum of missing/tampering of the documents to the notice of the learned Trial Court, who in turn appears to have apprised the learned District and Sessions Judge, Delhi about the said position. Soon thereafter on 20.1.2003 the learned Public Prosecutor sought the permission of the learned trial court to lead secondary evidence in respect of the missing documents and the documents which had been tampered with in the above manner, which prayer of the prosecution was allowed by the trial court and the prosecution was permitted to lead secondary evidence in regard to those missing and tampered with documents.

3. It would appear that the petitioners who were keenly watching the progress of the trial, became apprehensive about the sanctity and fairness of the trial on account of the tampering of the judicial record and assuming that it was the handiwork of certain accused persons who were facing the trial in connivance with the court official, in charge of the custody of the judicial record, moved an application under Section 439(2) CrPC before the learned trial court seeking cancellation of bail of the three accused persons, respondents herein, primarily on the ground that they were instrumental in Page 1928 the removal/tampering with the judicial record with the clear motive of escaping their responsibility / liability from the commission of offence and with a view to subvert the court of justice. The application for cancellation of bail was opposed by the accused persons, inter alia, on the pleas that there was no evidence or material brought on record which could indicate that the accused persons/respondents were responsible for removal or tampering with or mutilation of the judicial record. In any case, it was sought to be explained that the respondents had nothing to gain or have gained anything by removing or tampering with the said documents and rather they had voluntarily agreed to the re- construction of the said missing/tampered with the documents and secondary evidence has been led in regard to those documents. The learned trial court on a consideration of the matter and more particularly having regard to the stage of trial that it had almost reached the fag end by April, 2003 and by then only the Investigating Officer remained to be examined, vide an order dated 29.4.2003 declined the prayer of the petitioners Association for cancellation of the bail of the accused persons / respondents. The petitioners thereafter moved Crl.M.(M)2380/2003 before this Court once again praying for cancellation of the bail of the above-named three accused persons.

4. During the pendency of the said petition, the petitioners prayed for summoning of copies of the fact-finding report conducted by Ms.Mamta Sehgal, learned Additional Sessions Judge, New Delhi, in charge of the trial; Mr.S.C.Malik, learned Additional District and Sessions Judge, Delhi, who was appointed as the Inquiry Officer by the District and Sessions Judge in a Disciplinary Inquiry instituted under Rule 14 of the CCS (CCA) Rules, 1965; as also the final order passed by the Disciplinary Authority, District and Sessions Judge, Delhi, in the said inquiry instituted against Mr.Dinesh Chander Sharma, the court official. The prayer was allowed and copies of the report of fact- finding inquiry conducted by Ms.Mamta Sengal, learned Additional Sessions Judge, New Delhi dated 3.4.2003; the report of inquiry dated 30.4.2004 of the inquiry conducted by Mr.S.C.Malik, learned Additional District and Sessions Judge, Inquiry Officer; and the order dated 25.6.2004 passed by the District and Sessions Judge, Delhi in his capacity as the Appointing and Disciplinary Authority of the said Mr.Dinesh Chander Sharma, have been placed on record. On receipt of the said reports, the petitioners moved another petition being Crl.M.2229/2006 under Section 482 CrPC for a direction for registration of a criminal case (FIR) against the offenders for tampering with the documents in judicial custody.

5. In Crl.M.2229/2006 petition, it is averred by the petitioner Association that on inspection of the said inquiry reports and order passed by the District and Sessions Judge, Delhi, the petitioners learnt that though the Disciplinary Authority has taken disciplinary action against Mr.Dinesh Chander Sharma, Ahlmad of the court for his grave negligence and mis-conduct arising out of the removal/tampering with the judicial records in his care and custody by imposing a punishment of dismissal from service upon the said official, still no order or direction was given either by the trial court or the District and Sessions Judge for registration of a criminal case and investigation in regard to the circumstances in which the judicial record was removed and tampered Page 1929 with. It is pointed out that the sequence of events that led to the disappearance and tampering of the documents which constituted material evidence against the three accused persons; namely Mr.Sushil Ansal; Mr.Gopal Ansal and Mr.H.S.Panwar would point out to a conspiracy hatched by the accused persons with Mr.Dinesh Chander Sharma, Ahlmad for disappearance and/or tampering with the documents so as to subvert the free and fair trial at the cost of denting the truth. In this backdrop and circumstances, the petitioner felt that it was imminently required that the accused persons, who have conspired to commit penal offences to subvert the stream of justice so as to shield themselves from being tried in accordance with law for the offences committed by them, a criminal case is registered in order to ascertain the truth and bring the culprits to book so as to send a signal of deterrence to those who try to fiddle with the process of law. Such a course is stated to be, otherwise, necessary in order to maintain sanctity and fairness of a criminal trial and majesty of rule of law.

6. Both the petitions have been opposed by respondents No. 1 to 3 and a joint reply stands filed on behalf of respondents No. 1 and 2 while a separate reply has been filed on behalf of respondent No. 3 Crl.M(M) 2380/2003 . Similarly, a reply stands filed on behalf of respondent No. 1-Mr.Sushil Ansal in Crl.M.2229/2006, but no reply was filed on behalf of respondent No. 2 and respondent No. 3 despite opportunity granted for the purpose.

7. In the reply to the petition for cancellation of bail, respondents No. 1 to 3 have raised the same preliminary objections/pleas which they had raised before the learned trial court explaining in detail as to how they did not have any ulterior motive to tamper with the judicial record and that it was a mere mis-apprehension of the petitioners that they were instrumental in the removal or tampering with the judicial record with the object of screening themselves from the offences for which they were facing trial before the learned trial court. Respondent No. 3 also raised a preliminary objection about the locus standing of the petitioners who filed the petition for cancellation of bail under Section 439(2) or under Section 482 CrPC seeking registration of a case more particularly so when the State/CBI chose not to file any application for cancellation of bail of the accused persons or seeking any direction for registration of a case. It is also stated that the petitioners are not the complainants and they have no right to approach the Court directly unless so permitted by the Public Prosecutor, in charge of the trial. It is denied that there exist any sufficient material or good ground, for invoking the jurisdiction of this Court for the said reliefs.

8. In his reply to Crl.M.2229/2006, respondent No. 1 raised preliminary objections about the maintainability of the present application on the premises that no offence under Section 201 IPC can be said to have been made out. The learned trial court of Additional Sessions Judge, New Delhi has not invoked its powers and jurisdiction under Section 340 Cr.P.C. and even the Disciplinary Authority of Mr.Dinesh Chander Sharma e.g. the District and Sessions Judge did not give any directions for registration of the case. It is denied and disputed that the respondents are in any way responsible or has anything to do with the removal or tampering with the documents from the judicial record. It is pointed out that the presumption about the respondents Page 1930 being instrumental or having removed or tampered with the evidence in connivance with Mr.Dinesh Chander Sharma, Ahlmad, have been negatived by the learned Additional Sessions Judge while dismissing the application of the petitioner's Association for cancellation of bail vide order dated 29.4.2003. Lastly, it is pleaded that it is only in rare and exceptional cases that the court would invoke its power for ordering an inquiry and making a complaint under Section 340 Cr.P.C. and once the said power was not exercised by the court concerned, this Court must not exercise the said power in exercise of its extraordinary jurisdiction under Article 226 of the Constitution or inherent powers under Section 482 CrPC. Respondent No. 4/CBI chose not to file any reply but have whole-heartedly supported the prayers of the petitioners made in both the petitions.

9. As the same set of facts and circumstances formed the basis for the two petitions, so both the petitions were heard together and it is proposed to dispose of the same by this common order. I have heard Mr.K.T.S. Tulsi, learned senior counsel representing the petitioners; Mr.Altaf Ahmad, learned senior counsel representing respondent No. 1-Mr.Sushil Ansal; Mr.R.K.Naseem, learned Counsel representing respondent No. 2-Mr.Gopal Ansal; Mr.R.P.Lao, learned senior counsel representing respondent No. 3-Mr.H.S.Panwar; and Mr.P.P.Malhotra, learned Additional Solicitor General representing respondent No. 4-CBI; and have bestowed my thoughtful consideration to their respective submissions.

10. Mr.Lao, learned senior counsel representing respondent No. 3 has at the outset raised an objection about the locus of the petitioners Association to maintain the present petition. He submitted that the petitioners Association has no locus standi to file petitions like the present one because it is the State, in the case in hand, CBI, which alone is legally competent to file an application for cancellation of bail on the alleged grounds after the dismissal of the said application by the learned trial court. In this connection he has heavily relied upon the decision of the Andhra Pradesh High Court in the case of Sardela Damodar v. State of Andra Pradesh and Ors. 1998 Crl.L.J.277. On the face of the said case, the Court held that the complainant or the relations or interested persons of the deceased victims cannot file application under Section 439 CrPC for cancellation of bail granted to the accused and it is open for the complainant to appoint a private advocate to assist the Public Prosecutor, and only for exceptional cases the private advocate is permitted to assist Public Prosecutor subject to the limitations in Section 301(2) CrPC. There is no dispute with this legal proposition but it is equally well settled that in cases where the State fails to do its duty, the victims or the relations of victims are allowed to approach the law courts for redressal of their grievance. In the case in hand, no such objection in regard to the locus standi of the petitioners Association was raised by the respondents before the trial court and, therefore, it would be too technical to unsuit the petitioners on the premises that they, and not the State, has approached this Court or the Trial Court for cancellation of the bail of accused persons. In any case Mr.Malhotra, learned Additional Solicitor General appearing for the CBI has fully supported the case of the Page 1931 petitioners and, if I may be permitted to say, has stepped into the shoes of the petitioners and has joined them seeking the same prayer. Therefore, it is immaterial and only a question of academic interest whether the CBI or the petitioners have approached the court. This Court has, therefore, no hesitation in holding that the petitioner cannot be unsuited in these petitions simply on the ground that it was filed by an association of the relatives of the victims instead of the State/CBI.

11. Now first coming to Crl.M(M)2380/2003 seeking cancellation of bail of the three accused persons, this Court may, at the outset, would like to take stock of the legal position as to when in exercise of its powers under Section 439(2) CrPC, the High Court or Sessions Court can direct the cancellation of bail of an accused person, who has earlier been released on bail. The question is no longer res integra and is answered by the Apex Court and various High Courts in several of their decisions. Whether the bail of an accused is liable to be cancelled on the allegations of tampering or tinkering with the evidence by the accused during trial has been morefully considered by the Hon'ble Supreme Court in the case of State (Delhi Administration) v. Sanjay Gandhi, . In that case also the prosecution moved the High Court for cancellation of bail of the accused on the ground of tampering with the witnesses, but without success. In appeal, the Hon'ble Supreme Court, accepting the appeal of the State, laid down the following broad principles:

(a) Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only, if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.

(b) The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A bother, a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuation by the accused. The objective fact that witnesses have turned hostile must be shown to bear a casual connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution. It is, therefore, necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the respondent.

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(c) The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.

12. On the strength of the said judgment, Mr.Tulsi, learned senior counsel representing the petitioners has emphatically urged that there exit enough circumstances on record which would unambiguously point out that it were the three respondents/accused persons who by themselves or in connivance with some others were instrumental in the removal, tempering or mutilation of several of the documents with a view to screen themselves or being linked as the persons who could be held directly or indirectly responsible for the commission of various acts of commission and omission holding them liable for the offence for which they have been charged. In this regard, he and Mr.Malhotra, learned Additional Solicitor General, have referred to in detail about the nature, relevance and importance of the said documents which were found missing/tampered with or mutilated/defaced. The documents are as below:

i. Document No. D-20 is a seizure memo dated 18.7.97 which deals with seizure of the following material:

a. register of Directors of Green Park, Theatres;

b. register of members;

c. register of contract Under Section 301 of the Companies Act;

d. register of directors and shareholdings and shareholders;

e. register of share transfers;

f. share capital ledger;

g. counterfoil register;

h. original letter w.r.t. sh. Pranav Ansal;

i. original resignation letter of Sh.Vijay Agrawal;

j. 3 pages of minutes of meetings of directors of Ansal Theatres and Club Hotels dt. 2.6.97.

ii. Document No. D-84 deals with a letter dt. 28.11.96 from Ansal Properties and Industries Ltd. To the Divisional Officer DFS vide No. API:VP(S): 19:96 intimating the removal of the defects pointed out by DFS vide their inspection report dt. 18.11.96

iii. Document No. D-89 is the occurrence book of control room, Headquarters, DFS dt. 12.5.97.

iv. Document No. D-91 is the occurrence book of BCP, Fire Station.

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v. Document No. D-92 is the Casual Leave Register maintained in Hqrs. Delhi Fire Service. The document contains seizure memo of the register of which page No. 50 deals with the Casual Leave (CL) status of Sh. H.S.Panwar.

vi. Document No. D-24 is the seizure memo dt. 27.8.97 along with original cheque No. 955725 dt. 26.6.95 for Rs. 50,00,000/- drawn on Punjab National Bank, Rajinder Nagar, signed by Sh.Sushil Ansal in his favor.

vii. Document No. D-25 is the seizure memo dt.18.8.97 along with cheque No. 805578 dt. 30.11.96 for Rs. 1,50,000/- drawn on Punjab National Bank, Tolstoy House, signed by Sh.Gopal Ansal in favor of The 'Music Shop' and cheque No. 805590 dt.20.2.97 for Rs. 2,96,550/- drawn on Punjab National Bank, Tolstoy House, in favor of M/sChancellor Club signed by Sh.Gopal Ansal.

viii. Document No. D-26 is the seizure memo dt. 27.8.97 along with the cheque No. 183618 dt.23.5.96 for Rs. 9,711/- in favor of Chief Engineer (Water), drawn on Syndicate Bank, Green Park Extn., signed by Sh.Gopal Ansal.

ix. Document No. D-28 deals with the file containing minutes of MD's conferences of the Uphaar Grand containing 1 to 40 pages. Pages No. 1, 9, 12, 14, 18 and 19 are missing. It is relevant to note that the missing pages being No. 1, 9 and 12 deal with the MD's conferences of various dates being meetings/conferences held on 7.5.97, 2.4.97, 1.5.97, which indicate the conference w.r.t. the management of the Uphaar Grand held under the chairmanship of Sh.Gopal Ansal as the Managing Director circulated under the signatures of Maj.Ajit Choudhary, Manager (Adm.), Uphaar Grand.

13. On the other hand, learned Counsel for the respondents/accused persons have, with all vehemence at their command, submitted that the accused persons had nothing to gain or have gained anything by tampering with the said record in connivance with the court official/in-charge of the record and the documents were mis-placed due to the negligence of the said court official (Ahlmad). It is also pointed out that several documents, more particularly three cheques out of the four cheques, were traced out subsequently and replenished on judicial record. Mr.Naseem, learned Counsel even suggested that the record of cases, which is voluminous, is generally placed in locked tin boxes, keys of which generally remain in the control and custody of the prosecuting agency, in the present case the CBI, and the court official merely acts as a de jure custodian of the said record. Besides such record is most of the time handled and dealt with by the Investigating Officer and the Public Prosecutor whenever a need so arises. This Court is, however, not prepared to accept the position that after filing the charge-sheet, the record remains in the custody or control of the prosecuting agency.

14. Having regard to the nature of the above documents which were found removed or tampered with, there can be little doubt that the documents were of great relevance in order to establish the status of respondents No. 1 and 2 in the company which owned and was responsible for running the Uphaar Page 1934 Theatres while other documents were relating to the fire department, were relevant for the purpose of establishing any negligence or mis-conduct on the part of respondent No. 3 and other persons in issuing the requisite certificates required for running a theatre and how promptly steps were taken for controlling and extinguishing the fire once it has occurred. Mr.Tulsi and Mr.Malhotra are, therefore, fully justified in their submissions that the petitioners had reasonable belief to assume that it might be the respondents who by themselves or with the aid and connivance of some other persons, who could have been instrumental in the removal or tampering with the said documents. It is true that no direct evidence or material was or could possibly be brought on record showing the complicity of the accused persons because it can be established only through a probe in that behalf. Assuming for a moment that the respondent / accused persons were in any way responsible for the removal / tampering with the said evidence, but much water has flown since the removal/tampering of the said evidence in as much as the documents have been reconstructed and secondary evidence has already been led and the trial has advanced further so much so that not only the prosecution evidence has been concluded, the examination of the accused persons under the provisions of Section 313 CrPC is over and even the defense evidence, but for one witness, has been recorded. The respondents/accused persons were granted the concession of bail by this Court and the Sessions Court and have enjoyed the same during trial. Therefore, at least at this stage there seems to be no risk of tampering with the record of the case. Therefore, having regard to the totality of the facts and circumstances, this Court is of the opinion that it will not be conducive and expedient in the interest of justice to withdraw the said concession of bail at this stage.

15. Coming to the second petition Crl.M.2229/2006. It is true that on the request of the prosecuting agency, the missing/tampered documents were re- constructed and the prosecution was allowed and has led secondary evidence in regard to those documents. It is also true that the factum of missing/tampering of the judicial record having been brought to the notice of the District and Sessions Judge, who got a fact-finding inquiry conducted through Ms.Mamta Sengal, learned Additional Sessions Judge, New Delhi, the Presiding Officer of the trial court. The fact-finding Officer clearly found that Mr.Dinesh Chander Sharma was the person responsible for missing of documents/tearing of documents as well as sprinkling of ink on some of the documents. Based on the said fact- finding report, the learned Additional Sessions Judge instituted a disciplinary inquiry against Mr.Dinesh Chander Sharma in terms of the provisions of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 for imposition of penalty and appointed Mr.S.C.Malik as the Inquiry Officer to deal with the delinquent official, Mr.Dinesh Chander Sharma, Ahlmad. The Inquiry Officer vide his order dated 30.4.2004 unambiguously concluded that the delinquent official-Mr.Dinesh Chander Sharma had committed the act of high carelessness and negligence amounting to serious mis-conduct on his part resulting in loss of documents of one of the most important cases of CBI of the city i.e. Uphaar tragedy cases as he failed to preserve the judicial file in safe and sound condition. He held him guilty and recommended for strict Page 1935 disciplinary action for imposition of major penalty on him. On the said inquiry report, the District and Sessions Judge, vide an order dated 25.6.2004, passed the order of imposition of penalty of dismissal from service upon delinquent Mr.Dinesh Chander Sharma by observing as under:

Upon careful consideration of the Inquiry Report, evidence and other material on record as well as the representation submitted by the charged official and the personal hearing, the undersigned has come to the conclusion that the charges against Sh.Dinesh Chandra Sharma, Ahlmad stands fully proved (reasons given in the detailed order of even date) The case known as ``Uphaar Cinema Tragedy'` is a very sensitive case having international ramifications. The disappearance and/or tampering of the documents in such a case is a very serious matter. The charged official was under obligation to perform his duties in a careful, cautious and diligent manner so as to keep the judicial records in safe and sound condition but he has miserably failed to do so and therefore in my view the charged deserves no leniency. He has brought humiliation and bad name to the court staff, the services and justice delivery system.

Having regard to the totality of the facts and circumstances, the undersigned is of the consideration view that the said official Sh.Dinesh Chand Sharma is not a fit person to be retained in services and imposition of the penalty of dismissal from services upon the said Sh.Dinesh Chand Sharma Ahlmad, will meet the ends of justice.

16. Therefore, the important question which awaits an answer is as to whether the dismissal of the court official-Mr.Dinesh Chander Sharma, should be considered finale of a serious episode of the present kind in which the judicial record was tampered with and a curtain be dropped on the scene and the matter be treated as buried for ever or there is a crying need to do something more with a view to find out if it was merely an act of negligence or mis-conduct on the part of Mr.Dinesh Chander Sharma, Ahlmad or the act or such acts of commission and/or omission constituted criminal offence(s) and, if so, whether he (Mr.Dinesh Chander Sharma) alone was responsible for the said acts or he did so in conspiracy with certain accomplices who might have some interest in removal and tampering with the said judicial record. It is pertinent to note that neither the learned trial court nor the District and Sessions Judge, being the head of the District judiciary by adopting a myopic approach considered the need for a further probe into the entire circumstances in which a part of judicial record was removed and tampered with. Can the act of removal or tampering with the documents, which formed part of judicial record of a pending trial, be said to be only an act of mere negligence amounting to mis-conduct on the part of the court official who was responsible for preserving the record or was there something more than a mere negligence or mis-conduct constituting penal offences either on the part of the said court official by himself or with the connivance with some other persons. Having regard to the totality of the facts and circumstances, there can be least doubt that the act of removal and tampering with the judicial record of a pending criminal trial in a court of law done deliberately would constitute penal offences, besides it being an act of gross negligence amounting to mis-conduct Page 1936 on the part of the concerned official. It is a well settled legal proposition that the facts and circumstances leading to one transaction may constitute a criminal offence(s) besides affording reasonable ground for the initiation of Disciplinary action, if the wrong doer happens to be an employee. In that situation it is permissible to take recourse to both the actions simultaneously or one after the other as the circumstances of each case may warrant.

17. A great deal of arguments was advanced on behalf of the respondents/accused persons that there exist no material, what to talk of any cogent material or circumstances, which would show that the respondents were in any way responsible for removal or tampering with the said documents. It was even suggested that it could be the handiwork of anybody or even of the petitioners themselves who might have resorted to such course with a view to create ground for cancellation of bail of the accused persons. True, it could be anybody and that is precisely the reason why this Court should order a probe to find out who are the persons responsible for committing the said offences. Mr.Altaf Ahmad, learned senior counsel representing respondent No. 1 submitted that once action has been taken against the Ahlmad, the court official, it is no longer open to this Court or would be appropriate for this Court and more particularly at this stage of the trial to order any inquiry / investigation into the circumstances in which the said judicial record was tampered with. It was also urged that no offence under Section 201 IPC can be said to have been made out. This submission is based on the premises that it was for the trial court alone which was seized of the trial to have exercised its powers under Section 340 CrPC to hold an inquiry and direct the filing of a complaint if it was expedient in the interest of justice to do so but as the said court did not invoke the said powers in order to come to find out if any other person besides Mr.Dinesh Chander Sharma was responsible for removal and tampering with the record, no finding should be reached by this Court. It is submitted that that the power should not be exercised by this Court more particularly in exercise of its inherent jurisdiction. In this connection reliance has been placed upon Supreme Court decision in the case of Iqbal Singh Marwah v. Meenakshi Marwah and Anr. . Strong reliance is placed on the observations of the Court made in para-23 of the said judgment, which is to the following effect:

In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words ``court is of opinion that it is expedient in the interests of justice'`. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon Page 1937 administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court ay not consider it expedient in the interest of justice to make a complaint. The broad view of Clause (b)(ii), as canvassed by learned Counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.

18. Mr.Altaf Ahmad, learned senior counsel submitted that powers under Section 340 CrPC should not be exercised unless the Court is of the opinion that it is expedient in the interest of justice to make a complaint and the present case is not which warrants the exercise of such power because despite the tampering of the documents, the purity of the trial was maintained and the case was not adversely affected because secondary evidence has been led in regard to the missing/tampered documents. On the face of the peculiarity of the facts and circumstances of the present case, as noted above in detail, acceptance of such a proposition would amount to over-simplifying the matter and turning a blind eye to the commission of criminal offence(s). The facts and circumstances in which large number of documents were removed from the record and tampered with would indicate that it must be the deliberate act of some persons who had some oblique motive for doing so. Who are those persons persons who were responsible for committing such flagrant acts with the oblique motive, can only be found out after a full-fledged inquiry/investigation.

19. This being the position, it needs to be considered if the action taken so far in punishing the court official can be said to be adequate or something more needs to be done in this behalf. The acts of removal or tampering with the judicial record are very serious and have large ramifications on the administration of justice. Such like episodes cannot be brushed aside lightly. Therefore, this Court feels that there is a crying need for instituting an inquiry/ investigation into the whole episode so that the truth is unearthed and all those who are directly or indirectly responsible for committing the said offence(s) are brought to book and punished in accordance with law. Moreover, this Court is not able to comprehend what objection anyone can possibly have on that score? This Court is unable to accept the contention of Mr.Altaf Ahmed, learned senior counsel that in case an inquiry/investigation is instituted, respondents No. 1 to 3 and/or many other persons may be put to undue harassment. If we accept such a contention, it would mean that no crime of whatsoever nature should be investigated because investigation of a crime is likely to result in harassment of one kind or the other to the persons as suspected of the commission of offences or witnesses who may be subjected to certain inquiries. The stand of respondents No. 1 to 3 is that they were not in any manner or even remotely responsible for the removal or tampering Page 1938 with the said documents and, therefore, they need not to be apprehensive if such a probe is ordered. Rather they should welcome it in order to remove any lurking suspicion which is being entertained in certain quarters. Having regard to the totality of the facts and circumstances, it is strongly felt that this Court would be failing in its duty if it does not exercise its inherent jurisdiction and order the registration of FIR and investigation into this serious episode which has seriously affected the administration of justice and undermined the majesty of Rule of Law.

20. For the reasons stated above, in the result Crl.M.(M) 2380/2003 seeking cancellation of bail of respondents No. 1 to 3 is dismissed and Crl.M.2229/2006 is hereby allowed and the Special Branch of Delhi Police is called upon to register a case under appropriate provisions of law in regard to the incident of removal / tampering with/mutilation of the documents, referred to above, from the judicial record of the Trial Court. After registration of the FIR, investigation shall be entrusted to an officer not below the rank of Assistant Commissioner of Police who will conduct the investigation expeditiously and endeavor to conclude the same within a period of three months from the date of this order. A status report shall be filed by the investigating agency before the next date of hearing. Observations made in this order are based on a prima facie view of the facts and circumstances brought before the Court and may not be construed as the expression of opinion in regard to the complicity of one or the other person.

21. List on 8th August, 2006.

22. A copy of the order be forwarded to the Commissioner of Police, Delhi for taking necessary action as directed in this order.