The Delhi High Court has dismissed the Ansal Brother's pleas seeking suspension of their seven-year jail term and made a significient observation that allowing the same would amount to eroding the faith of the public in the judicial system.

The single-judge Bench of Justice Subramonium Prasad noted that allowing convicts to take advantage of the passage of time as well as the judiciary as an institution would be a bad example in society.

The petition filed by co-convict Anoop Singh Karayat, however has been allowed.

The Court during the hearing stated that even though the jurisdiction of the High Court to interfere with the Orders passed by the Sessions Court in a petition under Section 482 Cr.P.C is extremely limited, given the nature of the case, permission to advance detailed arguments on merits of the case to ascertain as to whether the impugned Judgment suffers from perversity of such nature which would require interference.

The matter pertained to tampering with Court records which obstructs the free flow of justice and has the effect of striking to the core of the rule of law.

Submissions

Petitioners

Learned Senior Counsel appearing for the Petitioner submitted:

-Offence punishable under Section 201 IPC does not extend to documents which are in the custody of the Court.

-In conspiracy cases, it is extremely important to fix the parameters of conspiracy. Section 10 of the Indian Evidence Act, 1872 is based on the principle of agents and conspiracy cannot extend beyond the period where the object of conspiracy has been achieved or when it gets frustrated. He states that once the object of conspiracy gets frustrated, Section 10 of the IEA is not available and statements made or things done after the conspiracy cannot be taken into account

-Secondary evidence was led and the documents were exhibited thus no obstruction in the administration of justice

-Records were kept in the Ld. Trial Court in a very shabby manner and during trial, these documents were not handled properly, and therefore, the Petitioners cannot be held guilty or liable for the acts done inside the Court.

-Motive of the prosecutor is suspect but no evidence was led by the prosecution regarding employment granted to the Ahlmad after he was thrown out of the service and for proving that the object of alleged conspiracy was achieved.

-there are 500 pages in the reply to the bail application, but there is nothing to state that there was any link between the Ahlmad and the Petitioner. The Petitioner is 83 years old and is suffering from various medical ailments which are life-threatening in nature. Even the Supreme Court had factored in the age of the Petitioner while considering the Petitioner‟s application for modification of sentence in a related case

-conspiracy cannot extend to a period after conspiracy was frustrated. Trial Court placed too much emphasis on the fact that the Court Ahlmad was given employment, in order to come to a conclusion that the conspiracy was extended.

Reliance was placed on SC Judgements in Bhagwan Swarup & ANR Vs. State of Rajasthan, 1991 Latest Caselaw 216 SC, State of Tamil Nadu Through Superintendent of Police, Cbi/Si Vs. Nalini & Ors, 1999 Latest Caselaw 200 SC, Angana & ANR. Vs. State of Rajasthan, 2009 Latest Caselaw 129 SC, Kashmira Singh Vs. The State of Punjab, 1977 Latest Caselaw 171 SC, State of Punjab Vs. Babu Singh, 1991 Latest Caselaw 102 SC, State of Maharashtra Vs. Natwarlal Damodardas Soni, 1979 Latest Caselaw 254 SC, S. Shanmugadivelu, S. Nalini & Ors Vs. State By D.S.P., Cbi, Sit, Chennai, 1999 Latest Caselaw 202 SC

State

Learned Senior Counsel appearing for the State submitted:

-parameters for grant of bail and parameters for considering an application for suspension of sentence under Section 389 Cr.P.C are different

-while considering an application for suspension of sentence, the Appellate Court only has to examine if there is such patent infirmity in the Order of conviction that renders the Order of conviction prima facie erroneous

-where there is evidence that has been considered by the Ld. Trial Court, it is not open to a Court considering application under Section 389 Cr.P.C. to reassess and/or re-analyse the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail.

-In Main Uphaar case, after the Petitioners were convicted, this Court granted benefit of Section 389 Cr.P.C. Later Supreme Court reversed the said Order and refused to suspend the sentence primarily looking at the conduct of the Petitioner in tampering with the evidence which has resulted in the instant conviction

-object of conspiracy was to ensure that certain key documents which would bring home the case of Section 304A CRL.M.C. 3276/2021& 3277/2021 Page 20 of 53 against the Petitioners herein in the Main Uphaar case were mutilated and tampered and the only purpose of doing so was to secure the acquittal of the Petitioners herein.

-accused entered into conspiracy for committing various offences like criminal breach of trust by a public servant, being the Court Ahlmad - Dinesh Chandra Sharma, and, thereby, committing the act of missing/destructing/tampering/obliterating the documents which were vital for the case in order to give advantage to the Petitioners herein during trial of the Main Uphaar case

Reliance was placed on SC Rulings in PREET PAL SINGH vs. STATE OF UTTAR PRADESH, 2020 Latest Caselaw 451 SC,  Main Pal Vs. State of Haryana , 2010 Latest Caselaw 641 SC, Willie (William) Slaney Vs. The State of Madhya Pradesh, 1955 Latest Caselaw 60 SC, Sushil Ansal Vs. State Through CBI, 2015 Latest Caselaw 629 SC, Atul Tripathi Vs. State of U.P. and another, 2014 Latest Caselaw 460 SC, Malay Kumar Ganguly Vs. Sukumar Mukherjee & Ors., 2009 Latest Caselaw 656 SC, Naveen Singh Vs. State of Uttar Pradesh, 2021 Latest Caselaw 144 SC, Kamlesh Prabhudas Tanna & Another Vs. State of Gujarat, 2013 Latest Caselaw 578 SC, 

High Court Observation

The Court decided on three basic issues:

1. Exitence of Conspiracy

It is well settled that conspiracy is a distinct offence and all conspirators are liable for the acts of each other for the crime or crimes which have been committed as a result of the conspiracy. Section 10 IEA is based on the theory of agency. The principle of agency as a rule of liability and not merely a rule of evidence has been accepted by the Privy Council and the Supreme Court. It is equally well settled that the offence of criminal conspiracy consists of a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means and the performance of an act in tune thereof. (Yakub Abdul Razak Memon Vs. State of Maharashtra and ANR, 2015 Latest Caselaw 490 SC)

"A perusal of the abovementioned judgements would show that what is required to be proved for the purposes of establishing a conspiracy is the unlawful agreement which is a sine qua non of a conspiracy. This unlawful agreement to hatch a conspiracy can be proved either by direct evidence, which is rarely available, or it may be inferred from the circumstances surrounding the conspiracy, especially the conduct, declarations and acts of the parties to the conspiracy. Further, it is not necessary for all conspirators to have agreed to join the conspiracy at the same time; every conspirator may have played their own part in furtherance of the conspiracy."
"Keeping this in mind, this Court finds that the conclusion arrived at by the Ld. Trial Court is based on a comprehensive analysis of the material on record to establish that there indeed was a conspiracy in place and the Petitioners herein were involved in the same. This Court deems it appropriate to conduct a cursory perusal of the merits of the instant case at this juncture for the purpose of adjudicating upon the correctness of the impugned Order. The tampered documents were handpicked in order to shield the Petitioners herein from conviction by ensuring that their control over Uphaar Cinema did not come to light, and therefore, the contention of Mr. Nigam that documents in the custody of the Trial Court are susceptible to mishandling and destruction cannot be sustained."

It further added:

"It is also settled law that one who commits an overt act with the knowledge of the conspiracy is guilty, along with one who tacitly consents to the object of conspiracy and goes along with other conspirators. In view of this, this Court cannot take into contention the submission of the learned Senior Counsels for the Petitioners herein that as there was no direct contact between Dinesh Chandra Sharma and the Petitioners herein, therefore, the latter could not be held liable for the acts of the former. The purpose of the conspiracy was to prevent the Petitioners herein from being convicted in the Main Uphaar case and the documents that were tampered with were evidently hand-picked so as to support the argument that the Petitioners had nothing to do with Uphaar Cinema. Therefore, it is not open to the Petitioners herein to contend that as they had no direct contact with Dinesh Chandra Sharma, they were unaware of the conspiracy that had been hatched. As stated earlier, the judgment of the Ld. Trial Court in inferring the existence of a conspiracy and for that purpose relying on the telephone communication between P.P. Batra and Dinesh Chandra Sharma cannot be said to be perverse. Furthermore, no substantial argument has been advanced on behalf of the Petitioners herein to indicate as to why regular communication was taking place between accused P.P. Batra and Dinesh Chandra Sharma in the first place."

Both the Courts below have correctly and patiently weighed the material that has been placed before them before arriving at the conclusion that a conspiracy was made out and the Court is not embarking on the question as to whether acts after the discovery of the tampered documents would be taken into account or not, or whether these acts are covered under Section 10 IEA as the same was only for the purpose of deciding the present application which arises out of an Order rejecting an application under Section 389 Cr.P.C.

2. Parameters of Section 389 CrPC vis-a-vis Section 439 CrPC 

The scope of Section 389 Cr.P.C and the parameters that have to be kept in mind while granting suspension of sentence has been stipulated by the Supreme Court in a number of judgments. It is well settled now that there is a difference between the factors that have to be taken into consideration for grant of bail under Section 439 Cr.P.C prior to conviction and grant of suspension of sentence under Section 389 Cr.P.C which is postconviction for the simple reason that presumption of innocence is no longer applicable to the person who stands convicted for an offence. (Atul Tripathi Vs. State of U.P. and another, 2014 Latest Caselaw 460 SC) 

The difference between Section 389 Cr.P.C and Section 439 Cr.P.C has also been summarised very succinctly by the Apex Court in PREET PAL SINGH vs. STATE OF UTTAR PRADESH, 2020 Latest Caselaw 451 SC 

"The Petitioners herein have been convicted for the offence of tampering with the Court records which is extremely serious offence and can shake the confidence of the public in the entire judicial system. Furthermore, the manner in which the offence has been committed is insidious in nature and reveals a well-planned and methodical attempt at subverting the justice system in order to reap the benefits and escape conviction in the Main Uphaar case. There is also no presumption of innocence which lies in favour of the Petitioners herein. Applying the same parameters which are to be exercised while considering an application seeking bail prior to conviction would amount to circumspecting the judicial procedure and, therefore, will CRL.M.C. 3276/2021& 3277/2021 Page 48 of 53 undermine the judicial system. In this regard, the submissions of Dr. Singhvi, learned Senior Counsel, concerning the liberty of the Petitioners herein and the wide discretion that must be exercised by this Court while hearing such an application, cannot be countenanced."

Court is not going in-depth into the matter or analysing the correctness or otherwise of the judgment of the Ld. Trial Court regarding conviction of the Petitioners herein lest it will have the effect of prejudice to the rights of the parties, it observed.

3. Public Confidence in the Judicial System

One of the most important factors while considering an application under Section 389 Cr.P.C. is to decipher the effect that such a decision may be on public confidence in the judicial system (Naveen Singh Vs. State of Uttar Pradesh, 2021 Latest Caselaw 144 SC) Chandra Shashi Vs. Anil Kumar Verma, 1994 Latest Caselaw 573 SC, Baradakanta Mishra Vs. The Registrar of Orissa High Court & ANR, 1973 Latest Caselaw 210 SC, 

"In the present case, the Petitioners have been found guilty of tampering with evidence that was in the custody of the Court itself. This tampering, if had not been brought to the notice of the Court, would have had the effect of interfering with the administration of justice. This Court is of the opinion that suspending the sentence of the Petitioners would, therefore, amount to eroding the faith of the public in the judicial system as it would entail allowing convicts, whose finding of guilt has already been established, to take advantage of the passage of time as well as the judiciary as an institution."

The Court suggestively stated:

"It is to be noted that since the matter relates to tampering of the judicial record, the same has to be decided as expeditiously as possible in CRL.M.C. 3276/2021& 3277/2021 order to ensure that the faith of the public in the judicial system is not eroded. This Court is of the view that cases of this nature should be heard and decided at the earliest as any delay in dealing with the same will only make people lose faith in the cherished institution, that is the judiciary. The Petitioners herein inhabit the stigma of desecrating the temple of justice and a quietus needs to be put to the same."

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Sheetal Joon