Crl. No. 807/2008 Page 1 of 274 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. Appeal No. 807/2008 Judgment reserved on: 12.05.2009 % Judgment delivered on: ,2009 Sanjeev Nanda ...... Appellant Through: Mr. Ram Jethmalani, Sr. Advocate and Mr. Siddharth Luthra, Sr. Advocate with Mr. R.N. Karanjawala, Mr. Sandeep Kapur, Mr. Saurab Ajay Gupta, Ms. Lataa Krishnamurti, Mr. Rajat Wadhwa , Mr. Mehul Milind Gupta, Mr. Shivel Trehan, Madhav Khurana , Mr. Arndam Mukherjee, Ms. P.R. Mala, Mr. Saurabh Gupta, Ms. Joyeeta Banerjee and Mr. Rajdeep Banerjee for the appellant. versus The State ..... Respondent Through: Mr. Pawan Sharma, Addl. P.P. for State And Crl. Appeal No. 767/2008 Rajiv Gupta ...... Appellant. Through: Mr. D.C. Mathur, Senior Advocate with Mr. Mohit Mathur versus State(Govt. of NCT of Delhi) ..... Respondent Through: Mr. Pawan Sharma, Addl. P.P. for State And Crl. Appeal No. 871/2008 Bhola Nath & Anr. ...... Appellant. Crl. No. 807/2008 Page 2 of 274 Through: Mr. S.S.Gandhi, Senior Advocate with Mr. Abhilash Mathur versus State(Govt. of NCT of Delhi) ..... Respondent Through: Mr. Pawan Sharma, Addl. P.P. for State CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? KAILASH GAMBHIR, J. * “The miracle is not to fly in air or to travel to the moon, but to walk on the earth”, says a Chinese proverb. 1. The increase in vehicular traffic alongwith the population of Delhi has grown much faster since the time Maruti Company has flooded the market with their brand of cars for the middle class of the society. Although the capital of the country is dominated by the middle and lower class, but the presence of rich and affluent is no less visible when one looks at the roads of Delhi to find large number of high class luxurious cars, including the Mercedes and BMWs. The traditional mode of travelling by tangas, bicycles, rickshaws, two wheelers is coming to gradual extinct except in the interiors of some localities. Crl. No. 807/2008 Page 3 of 274 2. Except for a few hours between midnight to dawn, one cannot see even a patch of earth but vehicles and vehicles either running or stranded in traffic jams on Delhi roads. This ever increasing vehicular explosion in traffic is due to the rapid increase of human population primarily due to continuous migration of people in search of their livelihood from adjoining states and from far flung areas. In this unmanageable crowd, what we have lost is humanity, morals, our age old rich culture, tradition, ethos and path of truthfulness and righteousness as shown to us by saints and scriptures. Of all the maladies afflicting India, the malady of inner decay reigns supreme. There is a weakening of our moral fibre and ethical values. Corruption, red tapism, callousness, casualness and crumbling moralities dominate our public life instead of much needed culture of care, compassion, empathy, and catholicity. 3. Drunken driving, insensitivity and apathy of the Government for public safety on roads; poor, faulty and ill equipped police investigation; growing interference of media in criminal trials; media hype; hostile and dishonest witnesses; falling standards of legal profession, filthy use of money power by rich and mighty; unholy nexus between defence counsel and State appointed Special Public Prosecutors are some of the issues that cropped up in this infamous case known as the BMW case. Crl. No. 807/2008 Page 4 of 274 Brief Facts 4. In this background, it would be relevant to briefly put forth the facts of the case before delving upon the contentions of counsel for the parties, which are as under: 5. At about 4:00 am on the cold wintry morning of 10/1/1999, the accused Sanjeev Nanda in an inebriated state, without an Indian driving licence while driving a brand new BMW car bearing registration no. M 312 LYP caused an accident at the Lodhi Road in which 6 persons, including three police officers were trampled to death and one person was injured. After causing the accident, the accused Sanjeev Nanda fled away from the accident spot and parked the accidental car at 50 Golf Links at the residence of his friend Siddharth Gupta. The accused has been convicted u/S. 304 (II) IPC and sentenced to 5 years imprisonment by the trial court for culpable homicide not amounting to murder. Accused Siddharth Gupta was discharged by this Court and accused Manik Kapoor was acquitted by the trial court. Accused Rajiv Gupta, Bhola Nath and Shyam Singh Rana have been convicted by the trial court u/S. 201 (II) IPC for causing disappearance of evidence of offence committed by accused. Aggrieved with the said orders of conviction & sentence dated 2/9/2008 passed by the learned trial judge, the appellant Sanjeev Nanda preferred appeal bearing Crl. A. No. 807/2008; Rajiv Gupta preferred appeal bearing Crl. A. No. 767/2008; and Bhola Nath and Shyam Singh Rana preferred appeal bearing Crl. A. No. 871/2008. Crl. No. 807/2008 Page 5 of 274 6. First, I will deal with the Crl. A. No. 807/2008 and then I will deal with Crl. A. Nos. 767/2008 and 871/2008. Crl. A. No. 807/2008 Arguments of the appellant 7. At the outset of his arguments, Mr. Ram Jethmalani, learned Senior Advocate with a view to narrow down the controversy very fairly admitted to the factum of accident and the fact that the accused No.1 Sanjeev Nanda was at the driving seat of the offending BMW car bearing registration no. M-312 LYP. The submission of Mr. Jethmalani was that the accused is an absolutely honest person and in his very first encounter with the police, he truthfully and honestly disclosed in his statement recorded under Section 161 of Code of Criminal Procedure that the said unfortunate accident in which six persons had died and one was injured had occurred when he was driving the said vehicle on the said fateful morning. The contention of the senior counsel for the appellant was that except for the said disclosure statement of the appellant, the prosecution had no evidence to implicate the appellant for the offences charged against him. He fiercely attacked the judgment of the trial Court on all fronts. As per him, it is a case where prosecution totally failed to prove its case, the trial judge failed to appreciate facts in the right perspective, misapplied law, indulged in self research to give strength to the prosecution theory, assumed the role of an expert though not being an expert after viewing the Crl. No. 807/2008 Page 6 of 274 videography of the site, attached undue weightage to the testimony of one of the most discredited witnesses and displayed his prejudice against the rich and mighty, blaming the accused for the ills and misdeeds of greedy lawyers and so on and so forth. 8. The first and foremost attack of the Senior counsel for the appellant was denial of fair and speedy trial to the accused. As per counsel, fair trial has been held to include speedy trial. Commenting on the speedy trial, learned counsel argued that it is a right granted to every accused under Article 21 of the Constitution of India and also can be traced to Section 309 of the Cr.P.C. Section 309 is a partial embodiment of the requirement of speedy trial and any delay in the trial would be a negation of the fundamental right of the accused to have speedy trial, the counsel contended. In every enquiry and trial, the proceedings have to be held as expeditiously as possible and if the law enforcing agency fails to abide by the said mandate of law, then it is incongruous for the State to expect the citizens to abide by the law. Giving a detailed account as to how and in what manner the proceedings before the trial Court were held, the counsel submitted that based on the narration of day to day account of the said case the entire delay is attributable to the prosecution. The trial was sometimes adjourned for weeks and months together. The trial which easily could have been concluded within a period of 4-5 years at the most, took more than 9 years, ruining the entire career of the accused, both educationally and professionally. Not only the career, the accused also lost his Crl. No. 807/2008 Page 7 of 274 precious adolescent life. He could have been a free man long ago and could have rehabilitated himself in the society, had the trial proceeded in a speedy and expeditious manner. 9. In support of his arguments, counsel for the appellant laid much stress on the authoritative pronouncements by the Constitutional Bench of the Apex Court in Abdul Rehman Antulay Vs. R.S. Nayak and Anr., AIR 1992 SC 1701 and Pankaj Kumar Vs. State of Maharashtra & Ors., Manu S.C. 7818/2008 10. Counsel for the appellant also referred to the Privy Council judgment reported in Herbert Bell Vs. Director of Public Prosecutions & Anr. (1985) A.C. 937. Relevant paras of the said judgment are reproduced as under: ―Thus, their Lordships accept the submission of the respondents that in general the courts of Jamaica are best equipped to decide whether in any particular case delay from whatever cause contravenes the fundamental right granted by the Constitution of Jamaica. The respondents explained and their Lordships accept, that a particular current problem arises from the difficulty in securing the attendance of witnesses. Witnesses absent themselves through ignorance or fear, sometimes influenced by intimidation, crude or subtle. The courts of Jamaica must constantly balance the claim of the accused to be tried, *954 notwithstanding the absence of witnesses, against the possibility, unproved and unprovable in many cases, that the absence of a necessary witness has been procured or encouraged by someone acting in the interests of the accused. The courts seek to prevent exploitation of the rights conferred by the Constitution and to weigh the rights of the accused to be tried against the public interest in ensuring that the trial should only take place when the guilt or innocence of the accused can fairly be established by all the relevant evidence. The Board will therefore be reluctant to disagree with the considered view of the Court of Appeal of Jamaica that the right of an accused to a fair hearing within a reasonable time has not been infringed. But since no court is infallible, there remain the power and the duty of the Board to correct any error of principle and to reverse a decision which, in the opinion of the Board, could only have been reached by the reliance on some irrelevant consideration or by ignoring some decisive consideration. …………….But their Lordships consider that in the present case the courts fell into error when they compared the delay which occurred after the order for a retrial with the average delay which occurs between arrest and trial. The applicant was arrested in May 1977. His trial was defective. The court of Appeal which heard his Crl. No. 807/2008 Page 8 of 274 appeal against conviction at the first trial could have upheld the conviction if they had been satisfied, notwithstanding the defective conduct of the trial, there had been no miscarriage of justice involved in the conviction. The Court of Appeal quashed the conviction in March 1979 and ordered a retrial. The members of the Court of a Appeal must therefore have considered that the applicant might be acquitted. The applicant having been arrested, detained and submitted to a defective trial and conviction had, through no fault of his own, endured two wasted years and must for the second time prepare to undergo a trial. In these circumstances there was an urgency about the retrial which did not apply to the first trial. A period of delay which might be reasonable as between arrest and trial is not necessarily reasonable between an order for retrial and the retrial itself. Far from recognizing any urgency, the Full Court excused delay which occurred after March 1979 on the ground that it was partly due in their words to ―bureaucratic bungling. Moreover in the present proceedings the Full Court and the Court of Appeal not only over looked the significance of the fact that the applicant *955 was complaining of delay in the context of a retrial, but also over looked the significance of the fact that on 10 November 1981 the applicant had been discharged. When Chambers J. discharged the applicant on 10 November 1981 the judge must have been satisfied and the prosecution does not appeal to have disputed that, whatever the reasons for the unavailibity of the witnesses at that time, any further delay would be unfair to the applicant and that he was entitled to be discharged in the light of all that had happened to him since his arrest in 1977. If that had not been the position, the prosecution would have sought and the judge might have granted a further adjournment. If fairness required the applicant to be discharge don 10 November 1981 fairness required that he should not be rearrested in February 1982. Although the provisions of the Constitution may not have been present to the mind of the judge, his discharge of the applicant can only be construed in the circumstances of the present case as recognition of the fact that the applicant had not been afforded a fair hearing within a reasonable time. Provided that the courts of Jamaica recognized that a retrial required urgency, the Board would not normally interfere with a finding of those courts that a particular period of delay after an order for a retrial did not contravene the constitutional right of an accused to trial within a reasonable time. But in the present case their Lordships conclude that the decisions of the courts of Jamaica were flawed by failure to recognize the significance of the discharge by the judge. In these circumstances their Lordships will humbly advise Her Majesty that the appeal should be allowed and that the applicant is entitled to a declaration that Section 20(1) of the Jamaica (Constitution) order in Council 1962 which afforded the applicant and right to a fair hearing within a reasonable time by an independent and impartial court established by law has been infringed. Their Lordships were reminded by counsel, the Director of Public Prosecutions and the Solicitor General, of the traditional and invariable adherence by the authorities of Jamaica to the spirit and letter of the advise tendered by the Board. In these circumstances, it would not be appropriate to accede to the request by the applicant that the Board should order that the applicant be discharged and not tried again on the original or any…..‖ Crl. No. 807/2008 Page 9 of 274 11. Delving upon his arguments on the second limb of the fair trial, the counsel submitted that besides being denied speedy justice, the appellant has also been denied a fair trial. Learned counsel contended that the trial judge may be most honest and upright, but still may not be fair because of his own philosophy, ideas and prejudices. Counsel submitted that fairness is not only possessing physical integrity or honesty , not submitting to pressures of any kind including extra judicial pressure but, it is much more. 12. Counsel for the appellant invited attention to Section 20 of the Jamaica (Constitutional) Order, to buttress his submission that the said section provides that whenever any person is charged with a criminal offence then such a person is entitled to fair hearing within a reasonable time by an independent and impartial Court established by law. Section 20 of said Jamaica Constitution as referred in Herbert Bell Vs. Director of Public Prosecutions & Anr.- (1985) A.C. 937 is referred as under: ―Section 20 sets out the provisions which by Section 13 are afforded to secure the protection of law and provides, inter alia: Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.‖ 13. Giving detail of series of instances of judicial unfairness on the part of the trial judge and the prosecution, which as per the counsel totally vitiated the entire trial and the final judgment, the Crl. No. 807/2008 Page 10 of 274 counsel submitted that various observations made by the trial judge would show that the judgment given by him in the present case is more clouded by his personal prejudices than backed by his judicious approach. The entire conduct of the prosecution was utterly dishonest and the investigation was conducted in a most unfair and corrupt manner, the counsel submitted. The attention of the Court was particularly invited to the observations made by the trial court at pages 122 and 104 of the impugned judgment. The trial court, it was argued has blamed the appellant for the alleged unethical acts and nexus between the defence counsel and the State prosecutor. Counsel for the appellant took strong exception to the observations made by the trial judge on pages 45, 72,116, 117, 122, 123, 124 of the judgment. 14. Citing further instances of unfair approach of the trial Court, the counsel submitted that the audience given by the learned judge to the most dishonest witness Mr. Sunil Kulkarni in his chamber on 11.7.99 when copies of certain letters already addressed by Mr. Kulkarni to the said judge had been given to the Judge. It is the grossest contempt of Court when a judge conducting the criminal trial speaks in private to the prosecution witness and what privately he would have said was neither known to the prosecution nor to the accused, the counsel contended. The judge should have denied such audience to the said witness or in all fairness should have disclosed the entire conversation having taken place in the chamber to the prosecution as well as to the defence. It was quite Crl. No. 807/2008 Page 11 of 274 surprising that the learned judge not only gave him a hearing in the chamber and then at his instance addressed a letter to the Police Commissioner. Obviously the learned judge felt convinced by the interview of the witness and perhaps believed him to be an honest man who deserved to be protected. The learned judge did not appreciate that the examination of the witness had commenced on 14.5.2007 and continued till 17 and 29th May, 2007, whereafter, it was resumed on 11.7.2007. The said audience was given by the learned judge on 11.7.2007 after the case was adjourned. No revelation was made by the Judge even on the next date i.e. 29.7.2009 and only a passing reference was made by the judge about the said meeting of the witness with him, during final arguments. The learned Judge also called for the judgment of the High Court in the matter of alleged misconduct of prosecution counsel Mr. I.U. Khan and defence counsel Mr. R.K. Anand and allowed his judicial mind to be influenced and moulded by the said judgment, without affording any opportunity to the accused. The learned judge has made reference to the said judgment of the High Court to draw unwarranted inferences. The contention of the counsel for the appellant was that the accused and his family members were victims of the said incident of alleged extortion between the defence counsel and prosecution counsel but they never bribed any one. Continuing his attack on the unfair trial, counsel further submitted that the learned Judge could have also exercised his power under Section 311 Cr.P.C. to call other witness i.e. Gauri Crl. No. 807/2008 Page 12 of 274 Shankar Tiwari who on electronic media accused Kulkarni of being a cheat and not being in Delhi on the date of the accident, when after a gap of about eight years the learned Judge could decide to recall Mr. Sunil Kulkarni who was a dropped witness, so far prosecution was concerned. The Court could have easily confronted Mr. Kulkarni with the version of said Mr. Gauri Shankar Tiwari , who disputed his presence in Delhi and called him a cheat. 15. On the unfair trial and on the alleged injudicious approach of the learned judge and his unwarranted observations in the judgment affecting the fair trial, counsel placed reliance on the following judgments. (1) Datar Singh Vs. State of Punjab-(1975) 4 SCC 272 (2) Sharad Birdhichand Sarda Vs. State of Maharashtra-(1984) 4 SCC 116 and (3) Chandran @Surendran & Anr. Vs. State of Kerala-(1991) Suppl. 1 SCC 39. 16. Counsel for the appellant was no less vociferous on the conduct of the prosecution who according to him was equally guilty for not ensuring fair trial to the accused. The prosecution in a most surreptitious manner did not produce the PCR messages with regard to the incident in question depriving the accused to his unbridled right of fair trial. The case of the prosecution is that PW-1 Hari Shankar who was working as an attendant in the petrol pump was the first one to inform the police about the said incident. One of the injured person Mr. Manoj PW-2 was taken in the PCR vehicle Crl. No. 807/2008 Page 13 of 274 referred as Eagle-11 where three police officers PW-24, PW-34 and PW-36 were present and were sending the messages through wireless. These police officials also flashed the oral statement of one victim PW-2 Mr. Manoj who in his statement stated that he was not able to tell about the said incident and about the accused who was driving the offending vehicle. These police control room messages as per the counsel for the appellant were deliberately not filed by the prosecution along with the charge sheet and not made part of the FIR, with the sole objective to misdirect the investigation so as to implicate the appellant for a higher degree of crime which he never committed. These documents ought to have been disclosed by the prosecution to the defence and they should have been formed part of the challan and that suppression of such vital documents on the part of the prosecution is in itself a circumstance sufficient enough to vitiate the entire trial. It is a matter of record that these PCR messages were placed on record by the prosecution after an application to this fact was moved by the appellant and they were proved on record, almost at the stage of conclusion of trial. The trial court also dealt with the PCR messages selectively as it ignored the material evidence based on these messages, which were of more significance between 5.23 A.M and 5.27 A.M. 17. Placing reliance on Rule 16 of the Bar Council of India Rules, the counsel for the appellant contended that said rule has brazenly been violated by the prosecutor and the State in this case Crl. No. 807/2008 Page 14 of 274 before the trial Court. For proper appreciation of the argument of the counsel for the appellant, Rule 16 is reproduced as under: ―16. An advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accuse shall be scrupulously avoided.‖ 18. Counsel further submitted that although Britain has no written Constitution but they have signed European Convention & Human Rights which clearly mentions that every accused person is entitled to a fair trial. 19. Counsel for the appellant also placed reliance on Rule A-252 of the Attorney General Guidelines in support of his arguments. The same is referred as under: ―A-252-Generally, material can be considered to potentially undermine the prosecution case if it has an adverse effect on the strength of the prosecution case. This will include anything that tends to show a fact inconsistent with he