Rama Sinha vs State Thr. Cbi
2016 Latest Caselaw 7519 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Decided on: 21st December, 2016
+      CRL.M.C. 3557/2016 and Crl. M.A. No. 15030/2016

       RAMA SINHA                                         ..... Petitioner
                          Represented by:     Mr. Yashank Adhiyaru, Sr.
                                              Advocate with Mr. Sibo
                                              Shankar Mishra and Mr.
                                              Niranjan Sahu, Advocates.
                          versus

       STATE THR. CBI                                     ..... Respondent
                          Represented by:     Mr. Anupam S. Sharma, Spl.
                                              P.P. with Mr. Vipul Sharma,
                                              Mr. Ankit Dhawan and Mr.
                                              Sachin Gautam, Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. By the present petition, the petitioner had sought setting aside of the orders dated 14th September, 2016 and 15th September, 2016 summoning the petitioner as the Court witness and directions to the learned Trial Court to summon the witnesses cited by the petitioner as Court witnesses and to examine them before recording the statement of accused under Section 313 Cr.P.C.

2. A brief history of litigation. The husband of the petitioner Dr. A.K. Sinha is facing trial in RC 2/1986 under Section 5(2) read with Section 5 (1)

(d) of the Prevention of Corruption Act, 1947 (in short 'the PC Act'). After filing of the charge sheet, the CBI filed an application under Section 3 of the Criminal Amendment Ordinance, 1944 seeking attachment of various

proprieties purportedly belonging to Dr. A.K.Sinha, husband of the petitioner. After notice was issued in the said application, the petitioner filed objections to the application of the CBI. The petitioner also filed an application for summoning the witnesses as an objector whereafter one Sushil Bansal, Inspector, Income Tax Solan, Himachal Pradesh was examined as OW1, who according to the petitioner did not produce the relevant documents.

3. Since the Court was proceeding with the recording of the evidence in the trial instead of disposing of the objections filed by the petitioner, the petitioner filed a petition under Section 482 Cr.P.C. before this Court being Crl. M.C. No. 3525/2005 challenging the orders dated 4 th May, 2005 and 31st May, 2005 passed by the learned Trial Court. Crl. M.C. No. 3525/2005 was disposed of by this Court on 26th July, 2007 with the following order:-

"This petition impugns order dated 4th May, 2005 and 31st May, 2005 passed by the Special Judge, Delhi declining further opportunity to the present petitioner, wife of the accused Dr. A.K. Sinha, to adduce evidence. It is the petitioner's case that the properties referred in the attachment application were acquired with her own assets by her independent income.

I have considered the materials on record. The trial court initially permitted the petitioner to examine three witnesses. It is an undisputed fact that one of them was examined and the deposition of the other two witnesses was scheduled to begin. In the interregnum, the Court formed the opinion that as charges were not framed since long, the proceedings ought not to be prolonged. Therefore, declined the request of the petitioner. It was of the opinion that the present petitioner did not avail of several opportunities. It, therefore, proceeded to frame the charges.

At present, it is an undisputed fact that the prosecution commenced recording of its evidence. Having examined the materials, particularly, an order of the Court dated 17.2.1998 whereby issues regarding the legitimacy of the assets of the petitioner were framed, I am of the opinion that the petitioner's claim in these proceedings deserves to be succeed but in terms of conditions mentioned hereafter.

In view of the above discussions, the Special Judge is directed to proceed ahead and complete the recording of the prosecution witnesses. Before recording statement under Section 313 Cr.P.C., the witnesses cited by the present petitioner objector shall be examined as court witness with appropriate opportunity to the concerned parties to cross- examine them.

The petition and Crl. M.A.7613/2005 are allowed but in the above terms."

4. The grievance of the petitioner is that despite the order of this Court directing examination of the witnesses of the petitioner before examination of Dr. A.K. Sinha under Section 313 Cr.P.C., the learned Trial Court is proceeding further by recording the statement of her husband under Section 313 Cr.P.C. without examining her witnesses.

5. The second prayer of the petitioner is to set aside the orders dated 14th and 15th September, 2016 summoning petitioner as a Court witness. Vide order dated 14th September, 2016 the learned Trial Court who had issued Court notice to the petitioner to examine herself noted that she was not present and hence one more opportunity was granted to her to appear on 15 th September, 2016 and when she did not appear on 15 th September, 2016 also the Court issued her further notice to appear on the next day, that is, 16 th September, 2016. Examination of the petitioner as Court witness in view of

the objections filed by her cannot be held to be erroneous.

6. Learned counsel for the petitioner states that in the application filed by the petitioner for summoning the witnesses she had specifically summoned the Superintendent, Commissioner of Income Tax, Chandigarh with the entire record of the income tax assessment for the year 1984-1985 and SP, CBI, SPE, ACCIO, CGO Complex with the entire documents including title deeds pertaining to the purpose enlisted in para-7 of the application for attachment. Despite requesting for the two witnesses to be examined they were not examined.

7. A perusal of the paper-book would reveal that when OW1 Sushil Bansal, Income Tax was examined, he brought with him assessment order of Rama Sinha for the year 1983-194 which were passed on 13th September, 1985 and placed the relevant copies thereof vide Ex.PX1 to PX13 of summoned file on record.

8. As regards the witness, that is, Superintendent, Commissioner of Income Tax, Chandigarh mentioned in the application of the petitioner dated 24th October, 2000 is concerned, instead of the Superintendent, Commissioner Income Tax, Chandigarh, one Suresh Kumar, Tax Assistant, Office of Income Tax, Chandigarh appeared as CW2 who deposed that merely from the name of the assessee record could not be traced. Further the records prior to six years had been weeded out nor can it be explained whether the assessee was still filing income tax return or had filed the return in any particular year in the absence of her PAN number. He further stated that efforts were made to trace the income tax assessment record of Rama Sinha for the year 1984-1986 however, the same being beyond six years had been weeded out thus cannot be produced.

9. From the testimonies of Sushil Bansal, OW1 and Suresh Kumar, Tax Assistant, Office of Income Tax, Chandigarh, CW2 it is apparent that for the assessment year 1983-1984 the income tax return of Rama Sinha was filed at Solan which records have already been produced and in the absence of any PAN number her records for the year 1984-1986 were not available at Chandigarh, moreover records prior to six years had been weeded out.

10. The second witness which the petitioner sought to examine was the SP, CBI, SPE, ACCIO, CGO Complex who was required to produce the entire documents including title deeds pertaining to the purpose enlisted in the application. It is stated that entire documents were seized during the search and seizure and since the petitioner was not in possession of the necessary documents, in the absence thereto she could not prove her objections to the proposed attachment.

11. A status report has been filed by CBI. As Annexure-A list of documents seized during house and office premises search in RC-2 (A)/CBI/ACU-II, New Delhi have been placed on record and against each document it is noted that either the same has been filed in the Court or has been returned to the concerned person from whom it was received. On a query put to the learned counsel for the petitioner as to which of the documents seized, have not been produced in Court and are relevant for the purpose of meeting the objections and SP, CBI was required to be examined, learned senior counsel for the petitioner has not been able to point out the relevant documents.

12. Considering the fact that instead of Superintendent, Commissioner of Income Tax the learned Trial Court has already examined CW2 Suresh Kumar, Tax Assistant, Office of Income Tax, Chandigarh and learned

counsel for the petitioner has failed to point out which documents are in the possession of SP, CBI which are required, this Court finds no reason to summon SP, CBI for being examined.

13. Consequently, the present petition and the application are dismissed.

(MUKTA GUPTA) JUDGE DECEMBER 21, 2016 'vn'