Criminal Misc. No.M-30558 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Misc. No.M-30558 of 2008 Date of decision : 18.12.2008 Sanjay Dalmia ....Petitioner Versus Centra Bureau of Investigation, Delhi ...Respondent 2. Criminal Misc. No.M-30676 of 2008 Uma Shanker Sitani ....Petitioner Versus Centra Bureau of Investigation and another ...Respondents CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. H.S.Mattewal, Senior Advocate with Mr. P.S.Mattewal, Advocate and Mr. Girish Agnihotri, Senior Advocate with Mr. Sanjiv Punj and Mr. Vinod S.Bhardwaj, Advocates for the petitioner in Criminal Misc. No.M-30558 of 2008 and for respondent No.2 in Criminal Misc. No.M-30676 of 2008. Mr. Sanjiv Gupta, Advocate for the petitioner in Criminal Misc. No.M-30676 of 2008 Mr. Ajay Kaushik, Standing Counsel for CBI Mr. Anil Tanwar, Advocate, Special PP/SCB/C.B.I. S. D. ANAND, J. The conceded fact that both these petitions are relatable to the same matter authorises joint disposal thereof vide a common order. Petitioner Sanjay Dalmia has filed Criminal Misc. No. M-30558 of 2008 for quashment of the order dated 5.11.2008 (Annexure P-8) whereby the learned Additional Sessions Judge, Ambala, dismissed a Criminal Misc. No.M-30558 of 2008 -2- **** revision petition preferred by the petitioner to obtain invalidation of the order dated 23.8.2008 (Annexure P-6) passed by the learned Special Judicial Magistrate, CBI, Haryana framing a charge under Section 506 IPC against the petitioner. Conceded facts in the first instance:- The police of Sahibabad registered an FIR (No. 656 of 1994) under Sections 504/506 IPC against Uma Shanker Sitani ( who was examined as PW-1 in the present case). The foundational occurrence of that case pertained to the year 1994. The police of Police Station, NIT, Faridabad also registered a case (FIR No. 476 of 1992 dated 9.8.1992 under Sections 382 IPC) against Uma Shanker Sitani aforementioned. In that case, the offence had been notified to the police by one Surjit Singh, who was ultimately found by the Investigating Abency to be a fictitious person. Uma Shanker Sitani aforementioned filed writ petition No. 325 of 1994 before the Apex Court. The plea raised therein was that registration of two aforementioned cases (one by the police of Police Station Sahibabad and other by the police of Police Station, NIT, Faridabad) was an outcome of business rivalry which he had with Sanjay Dalmia (petitioner herein). In that case, the Apex Court passed the following order on 7.3.1995:- ““We therefore, consider it appropriate to direct the Director of Central Bureau of Investigation to nominate a Senior Officer to investigate into the circumstances under which the criminal case No.656/94 was registered under Section 504/506 IPC at Police Station Sahibabad and the person or persons responsible for having the said case registered against the Criminal Misc. No.M-30558 of 2008 -3- **** petitioner in order to have him arrested in connected with the said case. The report of such investigation may be submitted to this court by April 30, 1995. Case Diary of Criminal Case No.656/94 is with the Registry of this Court. It will be open to the officer conducting the investigation to inspect the said case diary as well as the other record. The Registrar (Judicial) shall permit him such investigation and he may also be allowed to take zerox copy of papers from the case Diary and the record. A copy of this order may be sent to the Director, Central Bureau of Investigation.” In compliance with the direction aforementioned, the Central Bureau of Investigation submitted a report. On the basis thereof, the Apex Court passed the following order:- “In pursuance of the directions given by this court in the order dated March 7, 1985, the Joint Director, C.B.I., New Delhi, by his letter dated 1st May, 1995, has sent a report of the investigation made by the Officer nominated by the Director, C.B.I. in respect of the matter specified in the order dated March 7, 1995. From the perusal of the said report, it appears that certain police personnel Police Station Sahibabad, U.P. as well as at Police Station, N.I.T., Faridabad, Haryana, have registered and investigated false cases against the petitioner and that the complainants in both the cases were non-existent. The report also shows that there is strong suspicion that the complainants' allegation against Shri Sanjay Dalmia is not without basis. Having regard to the matters referred to in the report, we consider it appropriate that the C.B.I. should Criminal Misc. No.M-30558 of 2008 -4- **** register cases against the persons who have been prima facie found to be involved in registering those false cases after completing the investigation, take the necessary steps in accordance with law for the prosecution of the persons found to be involved. The Director General of Police of the State of U.P. as well as the State of Haryana are directed to render full assistance to the officers/officials of the Central Bureau of Investigation in discharging their obligation.” However, the matter in respect of the consideration of a contempt plea was deferred to 2.8.1996 on which date, it came to be disposed of by the Apex Court with the folllowing orders:- “Since the C.B.I. has completed their investigation and submitted charge-sheets, it cannot be said that the grievance of the petitioner as raised in this petition have not been redressed. We, therefore, dispose of this writ petition. If, however, the petitioner has any other grievance he is at liberty to agitate the same in appropriate forum.” The C.B.I. Ultimately filed charge sheets in respect of both the aforementioned FIRs. The discussion herein shall, however, be confined to Faridabad matter qua which the challan was filed in the Court of Special Judicial Magistrate, CBI, Ambala. As many as eight persons were impleaded therein as accused. The petitioner herein Sanjay Dalmia was found innocent by the Investigating Agency and was shown in column no.2 of the challan. As against it Uma Shanker Sitani and his wife Smt. Leela Sitani (examined at this trial as PW-1 and PW-2 respectively) were cited as prosecution witnesses. After the statement of Uma Shanker Sitani had been recorded Criminal Misc. No.M-30558 of 2008 -5- **** therein as PW-1, a plea under Section 319 Cr.P.C. was filed to summon the petitioner herein (Sanjay Dalmia) as an accused. The application came to be allowed by the Court vide order dated 18.12.1996. That order was, however, quashed by a Single Judge of this Court on 13.12.2004 in Criminal Misc. No. 16973-M of 1997 (Sanjay Dalmia Vs. State of Haryana) by recording the following observations:- “The short point, which has been urged by Shri R.S.Cheema, Sr. Advocate assisted by Shri Rohit Khanna, Advocate, appearing on behalf of the petitioner is that the statement of Shri Uma Shankar Sitani is to the following effect: - “On 05.10.1994 my wife had received a telephonic call from Shri Sanjay Dalmia at about 9.00 p.m. Sanjay Dalmia threatened my wife with dire consequences. He also informed my wife that the police was sent by him. Immediately my wife rushed to the police station and lodged a report. After the receipt of the report of the Commissioner of Police, Delhi, Hon'ble Supreme Court directed CBI to investigate the case. CBI found that Sanjay Dalmia was involved in both the cases. C.B.I. registered two cases, one pertaining to the case registered by the Haryana Police at Faridabad and the other by U.P. Police. Both the cases were registered against him at the behest of Sanjay Dalmia. During investigation by the CBI when I was called, Ishwar Singh and Raj Singh accused had told me that the case was registered at the instance of Sanjay Dalmia and other higher officers. They also told me that U.P. Police had Criminal Misc. No.M-30558 of 2008 -6- **** also visited them to seek guidance in registering a case against me.” To overlook the fact there was nothing in the statement which would constitute primary evidence which implicated Sanjay Dalmia is basically an inference drawn by his wife Smt. Leela Sitani about the telephonic talk which had taken place between her and the petitioner on 05.10.1994. Learned counsel for the Central Bureau of Investigation has drawn my attention to the statement of Smt. Leela Sitani recorded under Section 161 Cr.P.C. and states that in pursuance of the statement, the conclusion arrived at by the trial Court cannot be faulted with. He, however, had no answer to the legal proposition that the statement under section 161 Cr.P.C. could not after the commencement of the trial be made the basis of a summoning order under section 319 Cr.P.C. while there is no doubt that Smt. Leela Sitani had made a statement before the police under Section 161 Cr.P.C. to the following effect: - “It is worth mentioning that on the same day i.e. 5.10.1994 at about 9.30 p.m. I received a telephonic call at my residence from Shri Sanjay Dalmia, who threatened and said that he would not spare my husband. I immediately put the receiver of the telephone and went to local police post at Sainik Farm and lodged a complaint to this effect to Shri J.P.Meena, the then Incharge of the said police post and requested Criminal Misc. No.M-30558 of 2008 -7- **** him for police protection for me and for my family members. Lastly, I am to state that though Shri Sanjay Dalmia did not come forward to say anything to me or my husband face but I am sure that both the cases, one at P.S.NIT, Faridabad in the year 1992 and another at P.S.Sahibabad (Ghaziabad) in the year 1994 were registered against my husband at the instance of Shri Sanjay Dalmia, M.P. due to business rivalry.” Yet once the trial has commenced the state at which her statement could be used to corroborate the allegations made by her husband implication the petitioner would be only after she had appeared as a witness and stood by the averments contained in her statement under section 161 Cr.P.C. The application under Section 319 CR.P.C. in these circumstances would, in my opinion, be premature.” This Court, however, made it clear that trial shall proceed henceforth in accordance with law and it will be open to the prosecution to file a plea under Section 319 Cr.P.C. which would be decided in accordance with law once the statement of Smt. Leela Sitani was recorded. Infact, an application under Section 319 Cr.P.C. with the request to summon the petitioner herein (Sanjay Dalmia) as an accused did indeed come to be filed after the conclusion of the satement of Smt. Leela Sitani on 16.2.2007. That plea came to be allowed by the learned Special Judicial Magistrate, CBI, Ambala. That order was challenged by the petitioner Sanjay Dalmia in Criminal Misc. No.M-30558 of 2008 -8- **** Criminal Revision No.663 of 2007. In that petition, the challenge posed by the petitioner herein was to the locus standi of the complainant (to file a plea under Section 319 Cr.P.C.) and maintainability of the application under Section 319 Cr.P.C. itself. It was also the plea that there was no evidence worth the name to justify the allowance of the application under Section 319 Cr.P.C. This Court dismissed that petition in limine by recording the following concluding observations:- “In the light of foregoing discussion, I am of the considered view that the impugned order does not suffer from the vice of non-application of mind. It is based on sound application of the principles of law and the Magistrate was justified in entertaining and allowing the application under Section 319 Cr.P.C. On the basis of substantive evidence which appeared at the trial in the statements of PW-1 Uma Shankar Sitani and PW-2 Smt. Leela Sitani.” It was thereafter that the learned Special Judicial Magistrate heard the parties and, on consideration of the material available on the file, proceeded to frame a charge under Section 506 IPC against the petitioner herein. That order was unsuccessfully challenged by the petitioner before the Court of Sessions. On dismissal of the petition by the Court of Sessions, the petitioner has opted to file the present petition under Section 482 Cr.P.C. to obtain the invalidation of both the orders (dated 5.11.2008 passed by learned Additional Sessions Judge, Ambala in revision and dated 23.8.2008 passed by the learned Special Judicial Magistrate, CBI, Ambala). The other petition has been filed by Uma Shanker Sitani. The grievance therein is that the learned Special Magistrate, CBI ought to have Criminal Misc. No.M-30558 of 2008 -9- **** framed charges against Sanjay Dalmia for other offences as well for which the relevant material was available on record. I have heard Mr. H.S.Mattewal, learned Senior counsel appearing on behalf of petitioner-Sanjay Dalmia and Mr. Sanjiv Gupta, learned counsel appearing on behalf of the petitioner-Uma Shanker Sitani and Mr. Ajay Kaushik and Mr. Anil Tanwar, learned counsel appearing on behalf of the C.B.I. and have carefully gone through the record. Mr. H.S.Mattelwal, learned Senior Counsel appearing on behalf of the petitioner (Sanjay Dalmia), argues that the framing of charge under Section 506 IPC against the petitioner is fallacious on the very face of it because he is alleged to have made the averred telephonic call in the year 1994 and the prosecution presentation in the statements of PW-1 Uma Shanker Sitani and PW-2 Smt. Leela Sitani would not be adequate to indict the petitioner herein (Sanjay Dalmia) in any case. Learned Senior Counsel also buttresses the plea aforementioned by drawing sustenance from the fact that the CBI, which is a premier investigating agency of this country, had found the petitioner herein (Sanjay Dalmia) to be innocent. In the light thereof, the argument proceeds, the allowance of 319 Cr.P.C. plea is plainly fallacious. Reliance, in support of the advocated presentation, was placed upon Amitabh Adhar and another Vs. NCT of Delhi and another 2000 CRI. L.J. 4772 and a judgment rendered by the Delhi High Court (Pardeep Nandrajog, J.) in Surender Nath Vs. State and Ors. (FIR No.l 274/05 dated 24.3.2005 under Section 506 IPC) decided on 17.8.2007 and also Kuldip Raj Mahajan Vs. Hukam Chand 2008 (1) R.C.R. (Criminal) 370. The plea raised thereby is that even if the statements of PW-1 Uma Shanker Sitani and PW-2 Smt. Leela Sitani are accepted on their face value those would not give rise to a finding that an Criminal Misc. No.M-30558 of 2008 -10- **** offence of criminal intimidation had been committed. In that context, learned counsel also invited the attention of this Court to the statement of Smt. Leela Sitani recorded on 16.3.2007 wherein she had conceded that “Sanjay Dalmia never made any telephone call prior to 5.10.1994 or after 5.10.1994.” The plea is resisted on behalf of the C.B.I. and also the learned counsel for the complainant. In the context of the other petition, learned counsel for the petitioner therein (Uma Shanker Sitani) argues that there is enough material on the file for the framing of charges for other offences as well against Sanjay Dalmia. The grievance on behalf of the petitioner therein is that the learned Special Judicial Magistrate, CBI ought to have passed the formal order of discharge in case it came to the conclsuion that there was no sufficient material on record for framing of charges for other offences against Sanjay Dalmia. In my considered view, both the petitions are totally denuded of merits. I have the following observations to make in support of this view of mine:- The present is a case in which there is a precise attribution in the prosecution presentation to the effect that Sanjay Dalmia made a telephonic call to Smt. Leela Sitani PW-2 on 5.10.1994 in the course whereof, a threat was held out to be that her husband had been saved presently but would not be spared in future. This attribution can safely be culled out from a conjunctive perusal of the testimony of PW-1 Uma Shanker Sitani and PW-2 Smt. Leela Sitani. It may be noticed that Smt. Leela Sitani testified at the trial that petitioner Sanjay Dalmia threatened Criminal Misc. No.M-30558 of 2008 -11- **** her telephonically on 5.10.1994 at about 9.30 P.M. and informed her that her husband would not be spared in future and that he would be involved in Criminal cases. She was very categorical in the course of her testimony that she received that call at her residential telephone. As against it, the testimony of PW-1 Uma Shanker Sitani is little more elaborative inasmuch as he claimed to have been informed by his wife Leela Sitani that Sanjay Dalmia held out a threat that he would not be spared another time though he had been saved presently. In any case, the minute analysis of the statements made by PW-1 Uma Shanker Sitani and PW-2 Smt. Leela Sitani would not be appropriate at this stage in the context of adjudicating upon the controversy about the validity or otherwise of framing of a charge under Section 506 IPC against the petitioner- Sanjay Dalmia. The Investigating Officer is yet to be examined at the trial. It is apparent from the allegations on the record that the parties are closely related to each other (“Sanjay Dalmia is the grand son of husband's maternal aunt-Smt. Leela Sitani”). Initially Uma Shanker Sitani and Sanjay Dalmia were co- sharers in Golden Tabacco Company. It is also in the testimony on oath of PW-1 Uma Shanker Sitani that he was inclined to sell the shares held by him in Golden Tobacco Company, that he ultimately sold off his shares and that petitioner Sanjay Dalmia(through the company) tried to obstruct the transfer of those shares in the name of some other person. It is also in evidence that after his disassociation from Golden Tobacco Company, PW-1 Uma Shanker Sitani started his own independent business of cigarette and cement. That is how the relationship between Uma Shanker Sitani and Sanjay Dalmia went uneasy. It is not feasible for the Court to delve deep into the issue at this stage to find out whether the statement made by PW-1 Uma Shanker Criminal Misc. No.M-30558 of 2008 -12- **** Sitani and PW-2 Smt. Leela Sitani would ultimately form the foundational premise of a conviction under Section 506 IPC or not. Learned Senior Counsel for the petitioner (Sanjay Dalmia) tried to read much into the statements of Smt. Leela Sitani that “Sanjay Dalmia never made any telephone call prior to 5.10.1994 or after 5.10.1994.” and that she did not feel the necessity of finding out of fate of the complaint she had made to the police in the context of that telephonic threat. It will be for the learned Trial Court to appreciate the evidence in entirety on the conclusion of the trial. Stage wise appreciation of evidence is not envisioned by law. The Trial Court may have to appreciate the evidence in the light of the averred creases in the relationship between the parties and whatever other material, emerges relatable to the charge under Section 506 IPC, before that Court at the trial. The judicial pronouncement relied upon by the learned Senior Counsel for the petitioner (Sanjay Dalmia) do not butrress the plea in any manner. All that was held in Amitabh Adhar's case (supra) was that mere threat does not amount to the commission of an offence under Section 506 IPC, if it did not cause any alarm in the mind of the complainant. In Amitabh Adhar's case (supra), the Court was dealing with a dispute arising out of a matrimonial quarrel based upon dowry-related torture. There was no such background to the relationship of the parties thereto. The same applies to Kuldeep Raj Mahajan's case (supra). In that case too, the dispute was between a bank officer who was alleged to have insulted another bank official by using certain expressions which come within the ambit of the provisions of SC and ST (Prevention of Attrocities) Act, 1989. In the present case, however, there is sequence of grievances in the backdrop which indicates a embitterment of relationship between Criminal Misc. No.M-30558 of 2008 -13- **** the parties. Insofar as the judgment rendered by the Delhi High Court in Surender Nath's case (supra) is concerned, the Court had only interpreted the provisions of Section 95 of the IPC. The allegations in the case were that the complainant therein had refused to remove garbage from the flat of the first informant. The latter had also not paid the former for the last about three years and accused therein who was a Tantrik and used to throw his garbage here and there, would hold out a threat every day that he would get the wife and the children of the first informant killed. The facts of that case have no applicability to the facts of the case before this Court. Insofar as the other petition is concerned, I called upon the learned counsel for the petitioner to invite my attention any material justifying the framing of charge for any other offence against Sanjay Dalmia the respondent therein. The poser drew an ostensibly innocuous blank response. I have been through the record even otherwise. There is no material on the record to justify the framing of any other charge against respondent Sanjay Dalmia. The observations made and the reasoning noticed in this order must converge to the conclusion that both these petitions deserve dismissal and it is so ordered accordingly. December 18, 2008 (S.D. ANAND) Pka JUDGE