Delhi High Court
Sushil Ansal vs State Of Delhi on 3 September, 2009
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: March 18, 2009
Decision on: September 3, 2009
CRL REV P No. 224 of 2008 & Crl M A No. 4800/08 (Stay)
SUSHIL ANSAL ..... Petitioner
Through Mr. Uday U. Lalit, Senior Advocate with
Mr. R.K. Naseem, Advocate
versus
STATE OF DELHI ..... Respondent
Through Mr. P.P. Malhotra, ASG with
Mr. Jaideep Malik, Advocate
Mr. K.T.S. Tulsi, Senior Advocate with
Mr. K. Sultan Singh, Advocate for complainant.
CRL M C No. 1332/ 2008 & Crl M A No. 5036/08 (Stay)
DHARAM VIR MALHOTRA ..... Petitioner
Through Mr. Vijay Aggarwal and
Mr. Rakesh Mukhija, Advocates
versus
STATE ..... Respondent
Through Mr. P.P. Malhotra, ASG with
Mr. Jaideep Malik, Advocate
Mr. K.T.S. Tulsi, Senior Advocate with
Mr. K. Sultan Singh, Advocate for complainant.
CRL M C No. 1334 of 2008 & Crl M A No. 5038/08 (Stay)
GOPAL ANSAL ..... Petitioner
Through Mr. D.C. Mathur, Senior Advocate with
Mr. Vijay Aggarwal and
Mr. Rakesh Mukhija, Advocates
versus
STATE OF DELHI ..... Respondent
Through Mr. P.P. Malhotra, ASG with
Mr. Jaideep Malik, Advocate
Mr. K.T.S. Tulsi, Senior Advocate with
Crl.Rev.P.No.224/2008 Page 1 of 26
Mr. K. Sultan Singh, Advocate for complainant.
AND
CRL M C No. 1378/ 2008 & Crl M A No. 5177/08 (Stay)
PREM PRAKASH BATRA ..... Petitioner
Through Mr. R.N. Mittal, Senior Advocate with
Mr. Manu Sharma and
Mr. Manish Sharma, Advocates
versus
STATE ..... Respondent
Through Mr. P.P. Malhotra, ASG with
Mr. Jaideep Malik, Advocate
Mr. K.T.S. Tulsi, Senior Advocate with
Mr. K. Sultan Singh, Advocate for complainant.
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
JUDGMENT
S. Muralidhar, J.
1. Criminal Revision Petition No. 224 of 2008 by Sushil Ansal challenges an
order dated 15th February 2008 passed by the learned Additional Chief
Metropolitan Magistrate, New Delhi („ACMM‟) taking the cognizance and
summoning the Petitioner in FIR No. 207 of 2006 registered at Police
Station Tilak Marg, New Delhi.
2. Criminal M C No. 1332 of 2008 by Dharam Vir Malhotra, Crl M C No.
1334 of 2008 by Gopal Ansal and Crl M C No. 1378 of 2008 by Prem
Prakash Batra each seek an identical relief by challenging the summoning
order dated 15th February 2008 passed by the learned ACMM in FIR No.
207 of 2006 and for quashing the supplementary charge sheet filed in the
case on the basis of which the summoning order was passed.
3. The background to the present petitions is that on 13th June 1997 while the
matinee show of film „Border‟ was being screened at Uphaar Cinema in
Green Park, New Delhi, a fire in a transformer at the basement resulted in
emission of thick smoke and toxic gases. The result was the death by
asphyxiation of 59 persons and injuries to over 100 persons. Sushil Ansal is
the former Managing Director of Green Park Theatres Associated Private
Limited („GPTAPL‟) which had built and established Uphaar Cinema.
Gopal Ansal is the brother of Sushil Ansal and a shareholder in GPTAPL. It
may be mentioned that Sushil Ansal is also the Chairman of Ansal
Properties & Industries Limited („APIL‟) which has controlling share
holding in GPTAPL.
4. Initially an FIR No. 432 of 1997 was registered at Police Station Hauz
Khas, New Delhi on the basis of the information/complaint of the
aforementioned incident. Subsequently the investigations in the aforesaid
FIR were transferred to the Central Bureau of Investigation („CBI‟) on 23 rd
July 1997, pursuant to which CBI registered case No. RC-3(S) 97/SIC-
IV/New Delhi. On 15th November 1997 a charge sheet was filed in the
aforementioned case against 16 persons named as accused. On 9 th April
2001 the trial court framed charges against all 16 persons, of whom 9 were
charged under Section 304 IPC and 7 persons under Section 304-A IPC. The
revision petitions challenging the order framing of charge were dismissed by
this Court by a judgment dated 11th September 2001. The trial proceeded and
resulted in the conviction and sentencing of the accused by the learned
ACMM. The appeal against the said judgment was disposed of by this
Court on 19/12/2008. It is stated that the further appeal against the said
judgment is pending in the Supreme Court.
5. As far as the present petitions are concerned, their origin can be traced to
an order dated 5th May 2006 passed by the learned Single Judge of this Court
in Crl M (Main) No. 2380 of 2003 filed by the Association of Victims of the
Uphaar Tragedy („AVUT‟) seeking cancellation of bail granted to the
accused persons Sushil Ansal, Gopal Ansal and H.S. Panwar who were at
that time facing trial for the offences under Sections 304/304A.3378/338/36
IPC read with Section 14 of the Cinematograph Act. Prior to this AVUT
had approached the trial court with an application for cancellation of bail of
the accused on the ground that they were instrumental in the
removal/tampering with the judicial record. It was alleged that this was done
with the clear motive of destroying evidence which would have proved their
criminal liability. The trial court passed an order dated 29 th April 2003
declining the prayer of AVUT for cancellation of the bail granted to the
accused on the ground that trial was nearing conclusion. It was then that
AVUT filed Crl M (M) No. 2380 of 2003 in this Court.
6. An application Crl M No. 2229 of 2006 was also filed by AVUT under
Section 482 of the Code of Criminal Procedure („CrPC‟) in Crl M (M)
No.2380 of 2003 seeking a direction to the State to register a criminal case
(FIR) against the accused for tampering with the documents forming part of
the record of the trial court. It was stated that during the progress of the trial
it was noticed by the learned Public Prosecutor (PP) that several important
documents seized by the investigating agency during the course of
investigation and filed along with the charge sheet were missing from the
record of the case. Some other documents had been tampered with and/or
mutilated or defaced by tearing off a portion or by staining with ink.
7. By an application dated 13th January 2003 the learned PP drew the
attention of the trial court to the above fact. In turn the trial court apprised
the learned District & Sessions Judge („D&SJ‟), Delhi. On 20 th January 2003
the learned PP sought permission from the trial court to lead secondary
evidence in respect of the missing documents and the documents which had
been tampered with in the above manner. This application was allowed by
the trial court and the prosecution was permitted to lead secondary evidence
with regard to the missing and tampered documents.
8. It appears that pursuant to the orders of the D&SJ, an enquiry was
conducted by the learned Additional Sessions Judge („ASJ‟), New Delhi.
The report dated 30th April 2004 of the enquiry officer concluded that the
Ahlmad of the Court, Dinesh Chander Sharma, was prima facie guilty of
causing the documents forming part of the judicial record of the case to
disappear or to be mutilated or torn. On the basis of the said report, an order
dated 25th June 2004 was passed by the learned D&SJ, Delhi removing
Dinesh Chander Sharma from service.
9. In Crl M 2229 of 2006 AVUT pointed out that although the disciplinary
action taken against Dinesh Chander Sharma proved his negligence and
misconduct arising out of the removal/tampering of the documents forming
part of the judicial record which was in his custody, no order had been
passed for registration of a criminal case against him.
10. The prayer made by AVUT was vehemently opposed by the accused.
They raised preliminary objections as to the locus to the AVUT to file such a
petition since they could appear in the trial court only upon permission being
granted by the learned PP. It was pointed out that none of the accused had
any ulterior motive of tampering with the records and that it was a mere
apprehension of the AVUT which was without any basis. It was further
pointed out that no offence under Section 201 IPC could be said to have
been made out.
11. By a judgment dated 5th May 2006 the learned Single Judge of this Court
dismissed the said petition seeking cancellation of bail i.e. Crl M (M) No.
2380 of 2003. By the same order however the application Crl M No. 2229 of
2006 was allowed and the Special Branch of Delhi Police was called upon to
register a case under the appropriate provisions of law in regard to the
incident of removal/tampering with/mutilation of the documents. After
registration of the FIR, the investigation was directed to be handled by an
officer not below the rank of Assistant Commissioner of Police („ACP‟).
The investigation was directed to be conducted expeditiously and concluded
within a period of three months from the date of the order.
12. Consequent upon the judgment dated 5th May 2006, a letter was written
by the AVUT to the Police Station (P.S) Tilak Marg on 13th May 2006.
Thereafter an FIR No.207 of 2006 under Sections 109/193/201/218/409/
120B IPC was registered on 17th May 2006.
13. A charge sheet was initially filed on 12th February 2007 in which Dinesh
Chand Sharma was named as the sole accused and the offence was under
Section 409 IPC. Cognizance was taken by the learned ACMM and the
accused Dinesh Chand Sharma was summoned.
14. Thereafter a supplementary charge sheet was filed on 23 rd May 2007. It
was based on the information given by the Government Examiner for
Questioned Documents („GEQD‟) on 30th April 2007. Further investigation
led to the filing of a third supplementary charge sheet on 17th January 2008.
In this Sushil Ansal, Gopal Ansal, Prek Prakash Batra and Dharam Vir
Malhotra were named as accused along with Anoop Singh and Har Swarup
Panwar. The offences mentioned in the third supplementary charge sheet
were under Sections 109/409/201/120B IPC. A list of eleven documents and
a list of five witnesses were appended to the charge sheet. On the basis of
the supplementary charge sheets, by the impugned order dated 15th February
2008 the learned ACMM summoned the Petitioners.
15. The submissions of Mr. Mr. U.V. Lalit, learned Senior counsel on behalf
of Mr. Sushil Ansal, Mr. Vijay Aggarwal, learned counsel for Mr. Dharam
Vir Malhotra, Mr. D.C. Mathur, learned Senior counsel for Mr. Gopal Ansal
and Mr. R.N. Mittal, learned Senior counsel for Mr. Prem Prakash Batra
have been heard. On behalf of the State the submissions of Mr. P.P.
Malhotra, learned Additional Solicitor General and on behalf of AVUT Mr.
K.T.S. Tulsi, learned Senior counsel have been heard.
16. It is submitted on behalf of the Petitioners that the mandamus issued by
this Court in its judgment dated 5th May 2006 has not been complied with by
the State. It is further submitted that by registering the FIR showing the
AVUT as complainant, the investigation proceeded on the basis that it was
only the Petitioners who were the accused and no one else. This led to an
imbalance and an unfair investigation in a manner not warranted by the
order passed by this Court. It is submitted that inasmuch as AVUT was
projected as the aggrieved party/ complainant and the accused as the
Petitioners, the possibility of the complainants themselves having caused the
evidence to disappear or having deliberately mutilated the records was not
even considered.
17. It is submitted on behalf of the State as well as AVUT that at the present
stage when the charge sheet has been filed and cognizance taken, the learned
ASJ was not required to give detailed reasons. At this stage the learned
ACMM was only required to examine whether there was "sufficient ground
for proceeding" and not "sufficient ground for conviction." It is submitted
that the possible defence of a person arrayed as accused could be examined
at the appropriate stage. As long as a prima facie case was made out the
criminal case could not be quashed in a petition under Section 482 CrPC.
18. It is seen from the order dated 5th May 2006 passed by the learned Single
Judge of this Court that the Court had rejected some of the contentions now
urged on behalf of the accused. It was held that it was for the trial court
alone to exercise powers under Section 340 CrPC for holding an inquiry and
directing the filing of a complaint. It is submitted that since the inquiry by
the learned ASJ had only found Dinesh Chand Sharma liable, this Court
could not exercise its power under Section 482 CrPC to direct any further
inquiry.
19. It was observed by the learned Single Judge in the order the order dated
5th May 2006 as under:
"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."
20. It was further observed as under:
"19. 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 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 for registration of FIR and investigation into this
serious episode which has seriously affected the
administration of justice and undermine the majesty of
Rule of law."
21. The following consequential directions were issued:
"20.In the result Crl M (M) 2380 of 2003 seeking
cancellation of bail of respondents 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 endeavour 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."
22. What appears to have happened after the passing of the said judgment is
that AVUT forwarded a copy thereof to the police for taking action. On the
basis of the said judgment, an FIR was registered and investigation entrusted
to the Assistant Commissioner of Police, EOW Crime Branch, Delhi.
23. This Court does not find merit in the contention that the investigation
was unfair only because the State itself did not by itself register the case on
the basis of the said judgment but did so at the instance of AVUT which was
shown as the complainant. As far as this Court is concerned, a direction was
issued by this Court that an FIR should be registered and investigation taken
up. Merely because the FIR was registered at the instance of AVUT and
investigation was taken up thereafter, it cannot be said that the direction
issued by this Court in the judgment dated 5th May 2006 was disobeyed.
24. It was insisted by learned counsel for the Petitioners that in order to
determine whether the investigation that followed was fair and reflected the
view expressed by this Court that the tampering of documents causing a
portion of records to disappear could have been done by any person
including AVUT itself, the case diary should be summoned even at this
stage. This Court is unable to accept the submission. The case is still at the
stage of arguments on charge. It will be open to the trial court to undertake
an elaborate exercise of examining these contentions at the stage of framing
the charges. This Court is not persuaded, in exercise its powers under
Section 482 CrPC, to undertake such an exercise at this stage.
25. The further submissions of the learned counsel for the petitioners were as
follows. It was repeatedly urged that the impugned summoning order does
not show any application of mind by the learned ACMM to the contents of
the charge sheet. While the first charge sheet only names Dinesh Chand
Sharma and seeks to make him alone liable for the offence under Section
409 IPC, the supplementary charge sheet does not mention him as an
accused and seeks to make the Petitioners liable for a whole range of
offences including under Sections 109/193/201/218/409/120 B IPC. The
impugned summoning order passed by the ACMM did not mention the
offences for which the Petitioners were being summoned. Therefore, they
were not in a position to even know the offences for which they were being
summoned. The summoning order was therefore passed in a mechanical
manner. It is submitted that the power to issue process to the
accused/summon the accused is, in terms of the wording of Sections 109,
203 and 204(b) CrPC, a discretionary one and therefore, it was incumbent
upon the learned ACMM to have passed a proper speaking order examining
the role of each of the accused and indicating why they were being
summoned. Reliance is placed upon the judgments in Omar Usman
Chamadia v. Abdul (2004) 13 SCC 234: AIR 2004 SC 1508, State of
Punjab v. Bhag Singh AIR 2004 SC 1203, State of Rajasthan v. Sohan Lal
2004 (5) SCC 573 and Paul George v. State 2002 (2) SCC 406. Reliance
was additionally placed on the judgment in Notified Area Committee v.
Additional Director, Consolidation (2002) 10 SCC 87, Punjab National
Bank v. Surendra Prasad Sinha AIR 1992 SC 1815, Ram Lal v. Parvinder
Singh 1986 (10) DRJ 188, Maksud Saiyed v. State of Gujarat (2008) 5
SCC 668 and Ashok Sikka v. State 2008 II AD (Cr) DHC 143.
26. The above submissions have been considered. Learned counsel for the
Petitioners are not correct in their submissions that at the present stage the
learned ACMM is required to give detailed reasons for summoning the
accused. For the record the order dated 15th February 2008 passed by the
learned MM reads as under:
"15.2.08
Present: APP for the State with Inspector Harish
Chander.
Supplementary charge sheet has been filed in case
FIR No. 207/06, PS Tilak Marg.
The main file has already been put up before me
and I have gone through the report under Section
173 CrPC and the documents on record. In the
present supplementary charge sheet six accused
have been named. However, they have not been
arrested during the investigation. After perusal of
the report under Section 173 CrPC and the
documents on record, I find sufficient ground to
proceed against the accused named in the
supplementary charge sheet as well. Hence, they be
summoned for 2.5.08, on which date the main case
is fixed for consideration on charge.
Sd/-
ACMM/15.2.08"
27. A perusal of the above order it shows that reference has been made by
the learned ACMM to the supplementary charge sheet which not only named
the accused but also indicated the offences. The learned ACMM stated that
he has gone through the report as well as the documents on record. He also
noticed that in the supplementary charge sheet six accused have been named.
Thereafter, the learned ACMM stated that he found sufficient ground to
proceed against the accused named in the supplementary charge sheet as
well. It is really an exercise in hair splitting to criticize the above order for
not specifically mentioning each of the accused and for also not mentioning
the offences for which they have been summoned. It is plain that when the
accused appear they will be supplied copies of the charge sheet along with
the documents and they would definitely know the offences for which they
have been summoned. Thereafter that they will be heard on charge. It is not
as if they will be sent for trial without being heard on charge.
28. In Deputy Chief Controller of Imports & Exports v. Roshanlal
Aggarwal (2003) 4 SCC 139 it has been held by the Supreme Court as
under: (SCC p. 145, para 9)
"9. In determining the question whether any
process is to be issued or not, what the Magistrate
has to be satisfied is whether there is sufficient
ground for proceeding and not, whether there is
sufficient ground for conviction. Whether the
evidence is adequate for supporting the conviction,
can be determined only at the trial and not at the
stage of inquiry. At the stage of issuing the
process to the accused, the Magistrate is not
required to record reasons. This question was
considered recently in U.P. Pollution Control
Board v. Mohan Meakins Limited (2000) 3 SCC
745 and after noticing the law laid down in Kanti
Bhadra Shah v. State of West Bengal (2000) 1
SCC 722 it was held as follows : (SCC p. 749, para
6)
„The legislature has stressed the need to
record reasons in certain situations such as
dismissal of a complaint without issuing
process. There is no such legal requirement
imposed on a Magistrate for passing detailed
order while issuing summons. The process
issued to accused cannot be quashed
merely on the ground that the Magistrate
had not passed a speaking order."
(emphasis supplied)
29. In State of Madhya Pradesh v. Awadh Kishore Gupta 2004 (1) SCC
691 it was held as under:
"11. As noted above, the powers possessed by the High
Court under Section 482 of the Code are very wide and the
very plenitude, of the power requires great, caution in its
exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The
inherent power should not be exercised to stifle a legitimate
prosecution. High Court being the highest Court of a State
should normally refrain from giving a prima facie decision
in a case where the entire facts are incomplete and hazy,
more so when the evidence has not been collected and
produced before the Court and the issues involved, whether
factual or legal, are of magnitude and cannot be seen in their
true perspective without sufficient material. Of course, no
hard, and fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage." (See:
The Janata Dal etc. v. H.S. Chowdhary and Ors., etc.,
(1992) 4 SCC 305, Dr. Raghubir Saran v. State of Bihar
and Anr. AIR 1964 SC 1) It would not be proper for the
High Court to analyse the case of the complainant in the
light of all probabilities in order to determine whether a
conviction would be sustainable and on such premises,
arrive at a conclusion that the proceedings are to be
quashed. It would be erroneous to assess the material before
it and conclude, that the complaint cannot be proceeded
with. In proceeding instituted on complaint, exercise of the
inherent powers to quash the proceedings is called for only
in a case where the complaint does not disclose any offence
or is frivolous, vexatious or oppressive. If the allegations set
out in the complaint, do not constitute the offence of which
cognizance has been taken by the Magistrate, it is open to
the High Court to quash the same. In exercise of the
inherent powers under Section 482 of the Code it is not,
however, necessary that there should be meticulous
analysis of the case before the trial to find out whether,
the case would end in conviction or acquittal. The
complaint has to be read as a whole. If it appears that on
consideration of the allegations in the light of the
statement made on oath of the complainant that the,
Ingredients of the offence or offences are disclosed and
there is no material to show that the complaint is mala
fide, frivolous or vexatious. In that event there would be
no justification for interference by the High Court. When
information is lodged at the police station and an offence is
registered, then the mala fides of the Informant "would be of
secondary importance. It is the material collected during the
investigation and evidence led in Court which decides the
fate of the accused person. The allegations of mala fides
against the informant are of no consequence and cannot by
itself be the basis for quashing the proceeding. (See:
Dhanalakshmi v. R. Prasanna Kumar and Ors. 1991 SCC
(Crl) 142, State of Bihar and Anr. v. P.P. Sharma. I.A.S.
and Anr. (1992 Suppl. (1) SCC 222), Rupan Deol Bajaj
(Mrs.) and Anr. v. Kanwar Pal Singh (Bill and Anr. (1995)
6 SCC 194, State of Kerala and Ors. v. O.C. Kuttan and
Ors. (1999) 2 SCC 651, State of U.P. v. O.P. Sharma
(1996) 7 SCC 705, Rashmi Kumar (Smt.) v. Mahesh
Kumar Bhada (1997) 2 SCC 397, Satvinder Kaur v. State
(Govt. of NCT of Delhi) and Anr. (1999) 8 SCC 728,
Rajesh Bajaj. v. State NCT of Delhi and Ors. (1999) 3 SCC
89." (emphasis supplied)
30. In S.W. Palanitkar v. State of Bihar 2002 (1) SCC 241 it was again
reiterated as under: (SCC p. 247 para 15)
"15. In case of a complaint under Section 200 CrPC
or IPC a Magistrate can take cognizance of the
offence made out and then has to examine the
complainant and his witnesses, if any, to ascertain
whether a prima facie case is made out against the
accused to issue process so that the issue of process
is prevented on a complaint which is either false or
vexatious or intended only to harass. Such
examination is provided in order to find out
whether there is or not sufficient ground for
proceeding. The words "sufficient ground" used
under Section 203 have to be construed to mean the
satisfaction that a prima facie case is made out
against the accused and not sufficient ground for
the purpose of conviction."
31. In light of the clear enunciation of the law in the aforementioned
decisions, this Court is unable to be persuaded to hold at this stage in the
present petitions under Section 482 Cr PC or in the revision petition that the
learned ACMM erred in summoning the Petitioners for the aforementioned
offences.
32. Elaborate arguments were addressed on whether the learned ACMM
could have, without their being any fresh material on record, summoned the
Petitioners on the basis of the supplementary charge sheets. In other words it
is sought to be contended that the impugned summoning order tantamounts
to taking cognizance of the offence twice and since in any event a review by
the learned ACMM of the earlier order taking cognizance only vis-à-vis
Dinesh Chand Sharma was impermissible, no further cognisance could have
been taken of the same offence. Reliance is sought to be placed in judgments
in Anirudh Sen v. State 2006 (3) JCC 2081 (Del), Jamuna Singh v. Bhadai
Shah AIR 1964 SC 1541 and D.A.M. Prabhu v. State 131 (2006) DLT 397.
It is further submitted that name of the witnesses Shiv Raj Singh and
Anokhe Lal Pal, who as per prosecution version revealed that Dinesh Chand
Sharma was given employment at the recommendation of Dharam Vir
Malhotra, and who figured in the charge sheet, were missing in the third
charge sheet. It is accordingly submitted that there was no material available
before the learned ACMM to summon the Petitioners after a gap of about
one year.
33. This Court finds the above submissions to be misconceived. When the
learned ACMM observed in the order dated 15th February 2008 that the
report under Section 173 CrPC and the documents on record have been
examined and further that "the main file has already been put up" clearly the
learned ACMM had seen the entire material on record and not just the
supplementary charge sheets. The supplementary charge sheet is part of the
entire record before the learned MM. That being the position, it matters
little whether the names of the witnesses figure in the first charge sheet or in
the supplementary charge sheet. These documents only mention the names
of the persons, who according to the prosecution, should be sent up for trial.
The material against each of them is, according to the prosecution, available
in the documents placed along with the charge sheet. It was for the learned
ACMM to examine all these materials in order to be satisfied in the first
place whether they should be summoned. Thereafter if prosecution is able to
satisfy the Court about the existence of material vis-à-vis particular offence
for which each of them is sought to be tried, the learned ACMM will take a
decision at the stage of the charge. This Court is not able to find any
illegality committed by the learned ACMM on this score.
34. It is misconceived to contend that since the learned ACMM summoned
only Dinesh Chand Sharma on the basis of the first charge sheet, he was
precluded from summoning any of the Petitioners on the basis of the
supplementary charge sheets. The material against the Petitioners emerged
as a result of the analysis and in particular the GEQD opinion which has
been mentioned in the supplementary charge sheet. It cannot therefore be
said that without there being any change whatsoever in the circumstances,
the learned ACMM proceeded to summon the Petitioners.
35. The entire material concerning the employment of Dinesh Chand Sharma
was not available at the time of filing the initial charge sheet on 20 th
February 2007. It was observed therein that "during investigation two wages
and remuneration register of employees of in which fluid were applied over
the name of accused Mr. Dinesh Chand Sharma was seized through seizure
memo and have been sent to Government Examiner Questioned Documents,
Hyderabad for examination and furnishing of expert opinion. Result from
GEQD is still awaited." The report of GEQD received on 30th April 2007
revealed that on the register of Employment and Remuneration of employees
of A-Plus Security and Training Institute for the month of November 2004
to June 2005 white fluid had been applied to the original writings and the
name of Ram Karan Singh written thereon. The writing below the fluid read
as Dinesh Chand Sharma. It was accordingly concluded by the investigating
agency that Dinesh Chand Sharma had remained on the pay roll of the A-
Plus Security Agency for eight months. The supplementary charge sheet was
accordingly filed against Dinesh Chand Sharma. In fact this confirmed the
suspicion expressed in the first charge sheet to the effect that "possibility of
Dinesh Chand Sharma tampering with the records at the instance of Prem
Prakash Batra acting in the interest of his employers Sushil Ansal and Gopal
Ansal cannot be ruled out." This Court is unable to therefore accept the
submission that the investigation was either unfair or that there was no
material on which the learned ACMM could have taken cognizance and
summoned the Petitioners.
36. Elaborate submissions have been made on behalf of Sushil Ansal, Gopal
Ansal and Dharm Vir Malhotra that there was no material on the basis of
which they could be summoned for the aforementioned offences. Each
counsel has analysed threadbare the concerned provisions of IPC to submit
that the said offences were not even prima facie is attracted as regards each
of the accused on the basis of the material gathered by the prosecution. It is
submitted that the judicial records remain in the custody of the court and are
not separately entrusted to any Ahlmad attached to the Court. In other
words it is submitted that Ahlmad is a mere record keeper and there is no
entrustment to him of the records for safe keeping. It is sought to be
submitted that it is doubtful if even the offence under Section 409 IPC is
attracted vis-à-vis Dinesh Chand Sharma. The further submission is that if
the above position is accepted that there is no question of any of the accused
being in the criminal conspiracy with Dinesh Chand Sharma for committing
the offence under Section 409 IPC. It is submitted that there must be some
physical manifestation of the conspiracy in order to show how the accused
were involved in the mutilation/ disappearance of the documents. It is
submitted that lack of mens rea on the part of the accused vitiated the
chargesheets. It is pointed out that inasmuch as none of the accused opposed
the application of prosecution for leading the supplementary evidence from
the photocopies of those documents, there was no intention of committing
any crime.
37. This Court finds that at the present stage the evidence does not have to
be analysed in a great detail to find out if each of the Petitioners can be held
to be guilty for the aforementioned offences. They were nine
tampered/missing documents. Some of them show that Sushil Ansal was one
of the persons actually managing the cinema as he was attending the meeting
of the Board of Directors, operating bank accounts, and visiting the cinema
regularly and issuing instructions to the staff. This Court had in its order
dated 11th September 2001 while dismissing the revision petitions
challenging the framing of charges noticed that Sushil Ansal had on 26 th
June 1995 signed the cheque on behalf of GTPAPL and therefore, appeared
to be involved in the affairs of the said company. It is this cheque which
went missing and was later found on 10th June 2003 during the course of the
trial. Two other cheques signed by Gopal Ansal went missing while one
was found during the trial and the other remains untraced.
38. It cannot be said that there is not even a prima facie made out against
any of the accused and that because none of the accused had anything to
gain by documents going missing or being tampered, they should be
discharged. This Court would hasten to add that irrespective of the result of
the appeals petitioners‟ against the conviction pending before the Supreme
Court, the offence of tampering with the judicial record by either causing
documents to disappear or be mutilated or torn could be attracted and that
event each of the accused would be liable to face trial for the said offence.
39. Extensive arguments were advanced by learned counsel for the accused
to the effect that Section 173 (8) CrPC permits only further investigation and
not re-investigation and that the investigation cannot be done piece meal.
Reliance was placed on the judgment in Tunde Gbaja v. Central Bureau of
Investigation 2007 (2) JCC 1306 (Del).
40. This submission is attractive at first blush but on a careful consideration
is without merit. It cannot be predicted with any certainty even at the
commencement of investigation whether any material will emerge before the
filing of the charge sheet which may point to the guilt of the same accused or
any other accused. The gathering of evidence by the investigating agency is
an on-going exercise and it may well be possible that by the time the first
charge sheet is filed, the entire material is not available and further evidence
remains to be discovered. Therefore, the device of filing a supplementary
charge sheet is not unknown. It is misconceived to suggest that every
supplementary charge sheet can be related only to Section 173 (8) CrPC. In
the considered view of this Court it would be a mistake to consider the
supplementary charge sheet as being traceable to Section 173 (8) CrPC. It is
really a continuation of the investigation in respect of which the first charge
sheet has been filed. Usually, as has happened in this case, the charge sheet
will itself indicate that investigations are still in progress. The supplementary
charge sheets are in that sense a continuation of the initial charge sheet and
has to be read along with it. The learned ACMM has at this stage only
formed a prima facie view and after taking cognizance has summoned the
accused. The arguments on charge are yet to be heard. The learned ACMM
is entitled to form an opinion on the basis of the existing materials one way
or the other. It is also not possible to countenance the submission of the
Petitioners that not even prima facie material exists for summoning them for
an offence under Section 120 B IPC.
41. It is also sought to be contended that events that took place after the
records either disappeared or were mutilated cannot form the subject matter
of any offence and is hit by Section 10 of the Evidence Act. It is not
possible for this Court to accept the above submission. There appear to be
several circumstances relied upon by the prosecution to prove the conspiracy
involving the accused. These include the call data conversations between
Dinesh Chand Sharma and Prem Prakash Batra, providing employment to
Dinesh Chand Sharma after his dismissal from A-Plus Security and Training
Institute, applying fluid over his name in the attendance register, giving him
double salary by paying cash and so on. The documents would include the
opinion of GEQD to prove the white fluid, records of registration of
companies pertaining to SEML, balance sheet and IT returns of A-Plus
Security, bank details of payment to the accused H.S. Panwar by M/s.
Sushant Estate Pvt. Limited, sister concern of M/s. APIL. As observed by
the Supreme Court in Hardeo Singh v. State of Bihar 2000 (5) SCC 623
although there may not be any direct evidence against each of the accused, it
would not permit the Court to conclude that not even a prima facie case is
made out against them for the offence of criminal conspiracy.
42. There is merit in the submission of learned ASG that Section 10 of the
Evidence Act would get attracted only where the prosecution seeks to rely
upon the statement of a co-accused. There is no such statement of a co-
accused in the present case. The offence of conspiracy is sought to be
established on the basis of both oral and documentary evidence and not upon
the statement of a co-accused.
43. The allegation that the entire responsibility for the custody of the records
cannot be shifted to the Ahlmad is again misconceived. In the functioning
of the Court, it is the Ahlmad who is in charge of the records of the case. He
keeps the keys of the almirah in which the records are preserved.
44. Each of the counsel insisted that the Court should hear them extensively
on the merits of the case. However, towards the end of the arguments, each
of them pleaded that the Court should not make any observation which may
prejudice their case at a subsequent stage of the case. Having invited the
Court to deal with their submissions on merits of the case, this Court finds
the plea that it should refrain from dealing those submissions a bit strange.
Nevertheless given the scheme of the present CrPC, which seemingly
permits several rounds of challenge, this Court is constrained to clarify that
the observations made by it in this judgment will not influence the opinion to
be formed by the trial court at any of the subsequent stages.
45. For the aforementioned reasons this Court does not find merit in any of
the petitions. Each of the petitions is accordingly dismissed with cost of
Rs.25,000/-. These costs will be paid to the State within a period of four
weeks from today. The interim orders stand vacated. The pending
applications are dismissed. The trial court records be returned to the
concerned court forthwith together with a certified copy of this order.
S. MURALIDHAR, J.
SEPTEMBER 3, 2009
rk
