Crl.M.Cs. 2344/2004 & 354/2005 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve : 19.03.2010 Date of Decision : 22.03.2010 + Crl.M.C. 2344/2004 BRIJ BHUSHAN ..... Petitioner Through: Mr. PP Malhotra, ASG with Mr.Satish Aggarwala and Ms.Pooja Bhaskar, Advcates VERSUS STATE AND ANR. ..... Respondents Through:Mr. Navin Sharma, APP for State with Inspector Puran Chand, P.S. Shalimar Bagh Mr.Ankur Goel, Advocate for R-2 WITH Crl.M.C. 354/2005 VIKAS THUKRAL @ VICKY & ORS. ..... Petitioners Through: Mr. Ankur Goel, Adv. VERSUS STATE & ANR. ..... Respondents Through: Mr. Navin Sharma, APP for State with Inspector Puran Chand, P.S. Shalimar Bagh Mr. PP Malhotra, ASG with Mr.Satish Aggarwala and Ms.Pooja Bhaskar, Advcates for R-2 CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed Yes to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : MOOL CHAND GARG, J. 1. This common order shall dispose of the aforesaid two petitions filed under Section 482 Cr.P.C. read with Article 226 of the Constitution of Crl.M.Cs. 2344/2004 & 354/2005 Page 2 of 27 India registered as Crl.M.C.No. 2344/2004 and Crl.M.C.No.354/2005 respectively, both arising out of the same incident which occurred around the midnight of 31.8.2000 /01.09.2000, seeking quashing of: (i) FIR bearing No. 628/2000 under Section 302/307 IPC registered at P.S. Shalimar Bagh against Shri Brij Bhushan the petitioner in Crl.M.C. No. 2344/2004 (hereinafter referred to as the Custom Officer) and (ii) FIR bearing No. 295/2000 under Sections 186/353/332/364/365/506/34 IPC read with Section 27 of the Arms Act registered at P.S. Karol Bagh New Delhi against Shri Vikas Thukral and others (hereinafter referred to as Thukrals) petitioners in Crl.M.C. No. 354/2005 at the instance of the Custom Officer as well as the proceedings arising therefrom respectively. 2. Brief facts, giving rise to filing of FIR No. 628/2000 registered at the instance of Shri Vikas Thukral are: (i) That on 31.08.2000 at about 9.30 – 10.00 PM, Vikas Thukral was getting a truck unloaded consisting of plastic wheel covers with valid invoices and challans when the Custom Officer posing himself an Inspector (Customs) approached him and stated that he had the information that the containers mounted on the truck were containing smuggled goods. Despite Vikas Thukral informing the Custom Officer that the goods being unloaded were plastic wheel covers, showing invoices and challans in respect thereof and at his instance having also opened about 20 boxes in random which Crl.M.Cs. 2344/2004 & 354/2005 Page 3 of 27 contained plastic wheel covers, the Custom Officer kept on intervening and asked Vikas Thukral to call his father and some other elder person from his house. At this Shri Vikas called his father who came along with other persons who are petitioners in Crl.M.C. No. 354/2005 as also along with Subhash Rana (the deceased) at the go-down. They also talked to the Custom Officer who expressed displeasure with intent to extract some illegal gratification at which some altercation took place between them. (ii) That at this Thukrals got suspicious and asked for the correct identity of the Custom Officer who disclosed his identity as a Custom Officer and also stated that his residence was in Pitampura and asked Thukrals to accompany him for settling the matter. At this Thukrals along with Custom Officer boarded in two vehicles as custom officer was not having any vehicle. On the way to Pitampura the Custom Officer is stated to have asked Thukrals to stop the car on the pretext of urination and after going ahead a little, he took out a pistol from pocket of his pant and fired number of shots. One of the bullet hit Mr. Subhash Rana whereas the others saved themselves by hiding. The custom officer also took away Maruti Zen Car No. DL 3CA 3096 of Vikas Thukral and fled from the spot. That immediately after the incident Vikas Thukral informed the PCR on No. 100 & narrated the story that the Custom Officer had attacked by firing with his service pistol and seriously injured Mr. Subhash Rana (now deceased) who was then taken to Sarvodaya Hospital Pitampura. The PCR then informed the police Crl.M.Cs. 2344/2004 & 354/2005 Page 4 of 27 post Pitampura where DD No. 7A was recorded at 1.30 AM about the firing of shots near H.No. 219, SU Block, Pitampura and the assailant had fled after snatching the car. SI Raj Pal Singh reached Sarvodaya Hospital and collected MLC No. 308 of Subhash Rana who was declared unfit for statement. SI after doing the preliminary investigation sent a rukka to the police station and recommended registration of a case. Accordingly, FIR No. 628/2000 under Section 307 was registered against custom officer at PS Shalimar Bagh (subject matter of Cr.M.C. 2344/2004), cross case. The injured Subhash Rana was then referred to RML where he succumbed to his injuries and thereafter on receiving the information of his death Section 302 was added. 3. Therafter, after completion of investigation challan was filed against the Custom Officer alleging commission of offences under Section 302/307 IPC. The Magistrate took cognizance and issued summons to the Custom Officer. The custom officer without appearing before the Magistrate in person filed a petition under Section 245(2) Cr.P.C. which was entertained but was dismissed later. He filed a petition before this court which was disposed of by Justice J.D.Kapoor (Retd.) by remanding the matter for fresh decision on the application. The said application was also dismissed vide impugned order. It may be observed here that till now the petitioner has not appeared before the Metropolitan Magistrate concerned personally despite issuance of non bailable warrants against him, which was later on recalled after the arrest of the custom officer, which was stayed by this court. Crl.M.Cs. 2344/2004 & 354/2005 Page 5 of 27 4. On the other hand, in FIR No. 295/2000 registered at the instance of custom officer it has been submitted: (a) That the complainant was posted as inspector in Customs Preventive branch, Delhi at the relevant time and was engaged in surveillance duty in the area of Pusa Road. On the night of 31.08.2000, when he was coming back from his office he detected some suspicious goods being unloaded from two trucks. He then immediately informed his senior officer who asked him to keep the surveillance of the same. The petitioner then met one Vicky Thukral author of FIR No. 628/2000. He also disclosed his identity and asked for the documents pertaining to the goods in question. Then Vicky Thukral stated to him that he will call his father who would only explain about the papers/documents pertaining to the goods. Then Ashok Thukral along with his muscleman reached at the spot and some altercations took between them relating to goods. Thukrals were armed with deadly weapons. (b) That thereafter Thukrals started beating him mercilessly and huddled him in the car at gun point. It is also submitted that even after beating him they took him along and snatched all his personal belongings. He then was taken in the car which at one point of time was stopped near the Ring Road Punjab Kesari and was then further taken to Pitampura where he requested them for urination and due to light frisking of petitioner they could not trace his German Pistol and on seeing nobody around to save his life he fired and due to which they all ran away and custom officer Crl.M.Cs. 2344/2004 & 354/2005 Page 6 of 27 managed to escape. (c) It has been alleged that in this manner Thukrals committed offences under Section 186 IPC by obstructing the Custom officer in discharge of his duties and it is on these facts FIR No. 295/2000 was lodged by the Customs Officer against Thurkrals. After the challan was filed, necessary sanction under Section 195 Cr.P.C. was also obtained. The Ld. Magistrate took the cognizance of the matter against the accused persons and the trial has already started. It is also the case of the custom officer that later it was revealed that Ashok Kumar Thukral, Vicky Thukral and Subash Rana are all history sheeters as per the record of the Police. (d) After summons were issued to Thukrals they have approached this Court and proceedings have been stayed in Crl.M.C. No. 354/2005 vide orders dated 27.09.2004 which is common in both the cases. 5. At this juncture, it will also be appropriate to take note of the allegations made in the FIR by both the parties. In FIR No. 628/2000 Vikas Thukral who is the author of the FIR has stated: ―that I live at the above address with my parents. And at Arya Samaj road, Karol Bagh My father runs a shop of car accessories and myself also work with my father. We have a godown at 5, Pusa Road. Yesterday on dated 31.08.2001 I was getting unloaded the goods at about 11.00 O‘clock. A person came to godown and asked that I am Brij Bhushan, Custom Inspector. I have an information that the truck have wrong goods, get it checked when I got it checked then asked that call some responsible person. I telephoned my uncle, so my father Ashok Kumar Thukral and Subhash Chopra and Subhash Rana who both are my uncles and work at Jagdish Thukral my uncle‘s garment shop at Gandhi Nagar and my uncle Jagdish Thukral who lives in SU-219, Pitampura all of them came to the godown Crl.M.Cs. 2344/2004 & 354/2005 Page 7 of 27 and talked to the Brij Bhushan, Custom Inspector and we all had beaten him. After beating some time we asked Brij Bhushan that where do you live: He said I live in Pitampura. My uncle from there only went to Pitampura in any other‘s vehicle. My father, Subhash Chopra and Subhash Rana made sit Brij Bhushan into their vehicle. Custom officer did not had vehicle. I also followed them along with my two servants in my vehicle when we reached to the Punjab Kesri, Ringh Road then Subhash Rana stopped the vehicle there. So from my vehicle my servants Anil Kumar, Sanjay Kumar got down and sat in the left and right side of Custom Inspector Brij Bhushan and then we proceeded for Pitampura, when the time was about 1.00 AM night reached at AP Block, Pitampura. Custom Inspector Brij Bhushan got stopped the vehicle for urinating and went a little far from the vehicle and pulled out pistol from his pant‘s pocket and fired a few shots on us and one bullet hit in Subhash Rana‘s belli. We all hide ourselves and Brij Bhushan, Custom Inspector took my Maruti Zen car No. DL3C A 3096 and fled from the spot. I telephoned on 100 No. that Custom Inspector Brij Bhushan have done a life taking assault on us and have hit the bullet in Subhash Rana‘s belli so we have admitted Subhash Rana in Sarvodaya Hospital, Pitampura. Legal action be taken. ― 6. From the aforesaid, it is apparent that Thukrals admits that the custom officer showed his identity card, thereafter they gave him beatings and made him to sit in the car in which they took him to Pitampura where the incident of firing has taken place. 7. The custom officer in his FIR No. 295/2000 has made the following allegations: ―that yesterday, at about 11.45 PM dated 31.08.2000 when I left my office from New Customs House, IGI Airport for going home. At about 12.15 at night I reached to Pusa Road and turned towards Satbhrawan School than on the right side of the road I saw two trucks unloading the goods. On suspicion I stopped and observed from the packing that the goods seems to be imported. Regarding this I immediately informed my Superintendent (Preventive) Shri Nand Lal on his Mobile No. 9810184229 from my mobile No. 9810279614 and apprised him about situation by calling, who directed me to keep on the surveillance of goods and godown when I went near to the trucks to see the goods then a boy present there who was told Vicky, asked me, who are you and what do you want? Crl.M.Cs. 2344/2004 & 354/2005 Page 8 of 27 Then I told him that I am a Custom Officer and I asked him about the documents pertaining to the goods. On this, he old that I am calling my father who will tell you about them. So at about half an hour later four persons came and one out of them told his name Ashok Thukral and asked me who are you? I showed him my I. Card and introduced and asked about the documents pertaining to the goods then they started abusing and Ashok told me, you do not know me well, I will show you the documents right now. Thereafter, these people started beating me with kicks and punches and have beaten me brutally so I sat on foot path. After they started talking together. Then a person out of them to whom Vicky was calling Jagdish Uncle came to me and caught my collar by showing a revolver told me that you stand up and sit up in the car quietly and he and a second person who had worn a white coloured pathani suit caught and thrust me in their vehicle. Under coercion I sat in their vehicle and they kept on threatening me that if you will not obey us then we will shoot you with bullet. They kept me in vehicle and proceeded through Anand Parbat, Keshav Puram via Ring Road reached to Pitampura. During this time the fourth man hwo had beard of ‗JAT‘ style kept me threatening by showing second pistol and the pathani suit person was driving the vehicle and they were talking of killing me. So they were calling to the pathani suit man by the name of Subhash Chopra. After this, in the same vehicle they carried me ahead of Pitampura, T.V. Tower. I asked them to urinate. On this, Ashok Thukral who was sitting to the side seat of driver threatening me and asked to keep sitting and mouth shut. Thereafter, at a short distance they stopped the vehicle at a secluded place and got down me and started talking together that this place is fit for. So, Subhash Chopra who had the revolver in his hand asked me to put off my shirt and under coercion I put off my shirt and then they asked me to bend down so I felt that they will shot me dead. Therefore, to save my life and to made them frightened I fired two shots and ran towards the vehicle and while running fired shots from my service pistol which is issued to me from my Department and started their Zen car and ran away from there. So via Shalimar Bag, Azadpur, Model Town and turned towards Mukherjee Nagar where you intercepted me and I told you the whole story. You brought me to hospital. So all these people have collectively deter me to discharge my Government duty, beaten me and abducted me on gun point, confined me in vehicle, threatened me to kill. Against all these the legal action be taken. Heard the statement and it is correct.‖ 8. A bare reading of that FIR goes to show that the allegation made by the petitioner that his personal belongings were snatched does not find Crl.M.Cs. 2344/2004 & 354/2005 Page 9 of 27 mention in the FIR. There is also no mention that his pant also had blood stains. There is no explanation as to wherefrom his car reached at Pitampura which has been taken into possession by the Police officials of Shalimar Bagh on 01.09.2000 itself. There is no explanation as to why the FIR bearing No. 295/2000 has been registered by the Police around 7.30 AM on 01.09.2000 whereas the incident took place at about 1.00 AM in the morning of 01.09.2000. It is also a matter of record that petitioner, despite issuance of NBWs and rejection of his anticipatory bail application, has not surrendered before the Court and has been approaching this Court by filing one petition or the other to evade his arrest. 9. Both the sides have sought quashing of the FIR instituted against both of them for different reasons. 10. According to Thukrals the FIR bearing No. 295/2000 registered against them is liable to be quashed, inter alia, on the following amongst other grounds. I. The FIR has been registered at 7:30 a.m. and is an afterthought. No offence whatsoever has been made out against Thukrals in view of the fact that neither they obstructed nor deterred the Custom Officer from discharging his lawful duty nor he was kidnapped or abducted nor he was threatened to be killed by Thukrals. It is stated that the aforesaid FIR was got registered after the deliberations and concoction after 6 to 7 hours of the incident. II. The Custom Officer did not show his current identity card to Thukrals in spite of the request made by them to him and the identity card showed by the custom officer was not a valid card as on 31.08.2000. The act of custom officer in not showing his valid identity card to Vikas Thukral created a doubt in the minds of Thukrals as to whether the custom officer was actually a Customs Officer or not, as he was neither in the uniform nor Crl.M.Cs. 2344/2004 & 354/2005 Page 10 of 27 was carrying a valid identity card and moreover was heavily drunk. Inspite of all this, Thukrals accompanied him to Pitampura for the settlement which custom officer wanted. III. The bona fides of Thukrals becomes clear from the fact that without verifying the fact as to whether the custom officer was armed with any weapons or not they just took him along with them in another car. IV. The pistol and revolver shown to have recovered by the police, from the residence of Jagdhish Thukral is nothing but a concocted story. However, it is pertinent to mention here that the Subhash Chopra is in possession of a legal and valid licence. V. The custom officer was sitting at the rear seat with Mr. Subhash Rana and Subhash Copra was sitting at the front seat and the car was being driven by Ashok Thukral. The custom officer, if wanted, could have jumped out of the car any time anywhere at the crossing. Thukrals even stopped the car on the request of the custom officer and the custom officer was allowed to go and urinate without suspecting him. VI. The act of the custom officer in murdering Subhash Rana was voluntarily and intentional on his part and was not in any circumstances a part of self defence as alleged. The custom officer was neither kidnapped nor he was abducted by Thukrals as alleged. VII. Had there been a case of kidnapping by Thukrals, along with deceased Subhash Rana they would have never allowed custom officer to keep his revolver with him which he used on the way and killed Subhash Rana. VIII. From the FIR which was got registered by custom officer, it is clear that the custom officer never stated that Thukrals ever told him that they would murder him and that had the victim i.e. the deceased or Thukrals really kidnapped custom officer, the custom officer should have fired shot in the vehicle itself as he was sitting in the rear seat. On the other hand, it is admitted that the custom officer fired shots only from outside the vehicle and that too at a point blank distance knowing fully well that his act may even kill some other person and thereafter he would escape in the darkness. IX. As per the written submission of the custom officer his personal belongings were taken away when he Crl.M.Cs. 2344/2004 & 354/2005 Page 11 of 27 was taken to Pitampura. If that had been so, there is no reason for Thukals to leave the pistol with the custom officr. This itself shows falacity in the story of the custom officer as alleged. It is also an admitted case that even after the first shot fired by custom officer, Thukrals did not retaliate nor fired at the custom officer as they were not in the possession of any weapon. X. It is further admitted fact that inspite of no retaliation from Thukrals, the custom officer did not stop but fired these shots from his revolver. XI. The integrity of the custom officer again became doubtful, due to the fact that even as per instructions of the senior officials he did not keep a watch on the articles being unloaded from the truck but he himself without any provocation went to the spot and told the Vikas Thukral as to where were the documents and articles. In fact the custom officer should have waited for his senior officials to come to the spot. XII. The story of custom officer that he was made to sit in the vehicle and on the way on the pretext of urinating he got down and then fired is also not believable. XIII. He should have lodged a FIR or complaint at an earliest possible time at the nearest police Station, instead, his act of running from the spot and stopping his car at Mukherjee Nagar where he hit the car at the picket and was caught by the Police speaks volumes about the conduct of custom officer and further strengthens the fact that the FIR No. 295/2000 lodged by the custom officer was lodged only with a view to escape from the law and to create a false evidence as the FIR was lodged belatedly after due consultation from his seniors and in connivance with Police Officials. XIV. The custom officer did not care either to report to the local Police or his senior official before commencing his journey from Karol Bagh to Pitampura, which appears to be friendly and he even did not make any efforts before commencing his journey from Karol Bagh by informing the local Police that the goods could be ceased by them so that he could be in a position to register a case against Thukrals, if the good were found to be smuggled or contrabands. For the best reasons known to the custom officer, he kept quiet and accompanied Thukrals to Pitampura with a view to confirm their house so that he could receive bribe from them. Crl.M.Cs. 2344/2004 & 354/2005 Page 12 of 27 11. In so far as the Custom Officer is concerned, he seeks quashing of FIR No. 628/2000, on the following grounds: I. No offence whatsoever is made out against the custom officer in view of the facts of the case result of investigation and report submitted by the police in case FIR No. 295/2000 stating therein which goes to show that the FIR lodged by him was supported by unimpeachable evidence which the police had accepted. In the said investigation report the Police also give a finding that FIR No. 628/2000 lodged by Vijay Kumar Thukral was false and did not make out any offence. II. The Magistrate could not have taken cognizance of the offence allegedly committed by him without there being a sanction obtained u/s 197 Cr.P.C. which not only is applicable to the acts committed by the public servant but also to such acts which are committed by the public servant while purporting to act in discharge of his official duty which may be even beyond it but must have nexus with his public duty and colour of office. III. This is despite the fact that Thukrals also admit that at the relevant time the custom officer was discharging his official duties. IV. Sec. 155 of the Customs Act, 1962 also provides an embargo for initiating of any proceedings against the Customs Inspector like the petitioner unless the procedure