Crl.Rev.P.No.224/2008 Page 1 of 26 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 2 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 Crl.Rev.P.No.224/2008 Page 3 of 26 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 23rd 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 9th 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 Crl.Rev.P.No.224/2008 Page 4 of 26 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 29th 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 Crl.Rev.P.No.224/2008 Page 5 of 26 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 20th 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 Crl.Rev.P.No.224/2008 Page 6 of 26 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 Crl.Rev.P.No.224/2008 Page 7 of 26 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 23rd 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. Crl.Rev.P.No.224/2008 Page 8 of 26 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 Crl.Rev.P.No.224/2008 Page 9 of 26 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. Crl.Rev.P.No.224/2008 Page 10 of 26 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 Crl.Rev.P.No.224/2008 Page 11 of 26 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 Crl.Rev.P.No.224/2008 Page 12 of 26 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 Crl.Rev.P.No.224/2008 Page 13 of 26 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 Crl.Rev.P.No.224/2008 Page 14 of 26 173 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 Crl.Rev.P.No.224/2008 Page 15 of 26 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