ORDER FRAMING CHARGES DATED 31.05.2014 BY LD.CMM PATIALA HOUSE COURT

ORDER ON CHARGE

IN THE COURT OF SHRI SANJAY KHANAGWAL,METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS,

NEW DELHI

FIR No. 207/2006

P.S. Tilak Marg (Crime Branch)

State Vs. Dinesh Chandra Sharma & Ors.

31.05.2014

As per the brief facts of the case on 13.06.1997 a devastating fire occurred at Uphaar Theaters, New Delhi which took a toll of 59 human lives, including women and children besides leaving a large number of persons injured and the case under Section 304/304A/337 IPC read with Section 14 of The Cinematography Act was registered. Investigation was carried out by CBI and after completion of investigation charge sheet was filed against the accused Gopal Ansal, Sushil Ansal and H.S. Panwar and other accused persons. After framing of the charge in the said matter trial proceeded further and in January, 2003, when matter was at the stage of prosecution evidence, public prosecutor bring it into the notice of the court that several important documents which were filed along with the charge sheet by the IO were missing from the record while some documents were tempered with and or mutilated by tearing of a portion of the documents or by spreading ink etc on it. On 13.01.2003 learned public prosecutor bring the factum of missing/tampering of the documents to the notice of the concerned court and thereafter on 20.01.2003 learned public prosecutor sought permission to lead secondary evidence regarding those documents which were missing from the records and prayer was allowed by the learned trial court regarding above mentioned documents. Sh. S.C. Malik, learned Additional District & Sessions Judge Delhi was appointed as an inquiry officer by the learned District & Sessions Judge against the accused Dinesh Chandra Sharma who was Ahalmad of the Court at the relevant time. After detailed inquiry Sh. S.C. Malik, learned Additional District & Sessions Judge/ Inquiry officer vide his report dated 30.04.2004 reached at the conclusion that “ In view of the above discussion, the tearing of some of the documents, missing of some other documents and ink having found spread on some other documents of the file in question during the tenure of Dinesh Chandra Sharma, delinquent official, working as Ahalmad to the Court of Ms. Mamta Sehgal, learned ASJ/New Delhi stands fully proved and it also stands fully proved that the said documents have already been reconstructed as per the order of Ms. Mamta Sehgal, ld. ASJ/New Delhi. The unambiguous conclusion of the inquiry is that the delinquent official Dinesh Chandra Sharma has committed the act of high carelessness and negligence amounting to serious misconduct on his part resulting in loss of documents of one of the most important case of CBI of the city i.e. Uphaar tragedy case as he failed to preserve the judicial file in safe and sound condition. He is hereby guilty for the same and deserves strict disciplinary actions for imposition of major penalty on him as per the provisions of law”.

On the basis of the said inquiry report vide order dated 25.06.2004, ld District & Sessions Judge, Delhi imposed penalty of dismissal from the services upon the accused Dinesh Chandra Sharma with immediate effect. Thereafter on the basis of the inquiry reports the complainant Mr. Krishnamurthy, General Secretary, Association of the Victims of Uphaar Tragedy ( AVUT ) filed a petition before the Hon’ble High Court of Delhi pointed out the sequence of events that led to the disappearance and tampering of the documents which constituted material evidence against the three accused persons namely Sushil Ansal, Gopal Ansal and H.S. Panwar would point out a conspiracy hatched by accused persons with Dinesh Chandra Sharma, Ahalmad of the learned Trial Court for disappearance and / or tampering with the documents so as to subvert the free and fair trial at the cost of denting the truth. It was alleged in the said petition that accused persons who by himself and in connivance with others were responsible for the removal, tampering or mutilation of several of the documents with a view to screen themselves or being linked as the persons who could be held directly or indirectly responsible for the commission of various acts of commission and omission holding them liable for the offence for which they have been charged.

On the basis of the facts and circumstances brought into the notice of the court by the complainant, Hon’ble High court of Delhi vide its order dated 05.05.2006 passed directions for registration of the FIR and in pursuance to the said order of Hon’ble High Court of Delhi the present FIR was registered initially under section 109/193/409/201/218/120-B IPC. In the said charge sheet only Dinesh Chandra Sharma, who was delinquent official, was alleged as accused for the offence u/s 409 IPC alleging that by concluding the charge of the case file it was handed over to the accused Dinesh Chandra Sharma by ongoing Ahalmad Sh. Sunil Kumar Notiyal under proper receipt and he was the sole custodian of the pending trial case file. On the basis of these observations, the Charge sheet was filed against the accused Dinesh Chandra Sharma with the submission that supplementary charge sheet u/s 173(8) Cr.P.C shall be filed against the other accused persons. Thereafter further investigation was carried out which culminated into first supplementary charge sheet which was filed on 18.01.2008. The first supplementary charge sheet was filed under Section 120B/109/201/409 IPC against the accused Sushil Ansal, Gopal Ansal, H.S. Panwar, Prem Parkash Batra, D.V. Malhotra and Anoop Singh without their arrest. In the said charge sheet specific role of all the accused persons were elaborated and details regarding the missing documents was also incorporated. As per the complaint following documents were found missing / tampering/ mutilated.

1) Seizure memo dated 18.07.1997 for seizure of document prepared by the IO SIT Crime Branch, Delhi police left side lower corner of second page of the seizure memo is torn. The portion which is partly torn bears the signatures of Mr. S.S. Gupta, Company Secretary of Ansal Properties and vide this seizure memo documents i.e. register of Director, Members, Director’s Share holding, share transfer register and minutes of meeting of Directors were seized.

2) Page no. 123 of the file of Delhi Fire Services regarding Uphaar Cinema, Green Park, New Delhi. was found half torn from lower portion. The file was seized by the IO SIT Crime Branch vide seizure memo dated 12.07.1997. This letter has been found half torn from lower portion which bears the noting of Delhi Fire Services Offices.

3) One register of Occurrence Book of Control Room Headquarters, Delhi Fire Services.

4) One Occurrence Book register of Bhikaji Cama Palace, Fire Station, New Delhi.

5) Casual Leave register maintained at Headquarters Delhi Fire Services.

6) Four cheques

A) One cheque no. 955725 dt. 26.06.95 of Rs. 50 lacs signed by Sh. Sushil Ansal as one of the authorized signatories of Green Park Theaters and Associated Pvt. Ltd and Ansal Theaters and Club Hotels Pvt. Ltd was found missing with its seizure memo dated 27.08.1997.

B) Cheque nos (i) 805578 dt 30.11.2006 of Rs. 1.50 lacs (ii) No. 805590 dt. 20.02.97 of Rs. 2,96,550/- (iii) 183618 dt. 23.05.1996 of Rs. 9,711/- were signed by Gopal Ansal as authorized signatory of Green Park Theaters and Associated Pvt. Ltd and Ansal Theaters and Club Hotels Pvt. Ltd were also found missing along with their seizure memos dated 18.08.1997 and 22.08.1997

7) File containing minutes of M.D’s meeting and correspondencecontaining 40 pages which contains minutes of the meeting wherein Gopal Ansal had attended the meeting dated 22.02.1997, 02.04.1997, 01.05.1997 and 07.05.1997 in the capacity of MD and has chaired the meeting for regulation of day to day functioning of the Cinema.

So far as role of accused Sushil Ansal is concerned he was the Chairman of Ansal Properties and controlled the day to day functioning of Uphaar Cinema, Green Park, New Delhi.

Accused Gopal Ansal was the authorized signatory of the Green Park Theaters and Associated Pvt. Ltd and he was actively involved in the day to day functioning of the Uphaar Cinema and also attended several meetings under the capacity of Managing Director being the Managing Director of the Uphaar Cinema.

Accused H.S. Panwar was the Fire Officer and inspected the Uphaar Cinema and issued the NOC and accused H.S. Panwar was on casual leave yet he inspected the Uphaar Cinema on 22.12.1996.

These three accused were also accused in the main Uphaar Tragedy case wherein all of them has been convicted uptill Hon’ble Supreme Court of India and already Hon’ble High Court of Delhi and Hon’ble Supreme Court of India has given their observations regarding the role and accusation against these accused persons in the Uphaar Tragedy case. Here, in the present case, it has been alleged against the accused persons that the above mentioned documents were vital for the purpose of trial in Uphaar Tragedy case. Had those documents were not been there on the file, it could have benefited the accused persons in the trial of the case and as per the complaint the said documents were tempered / mutilated and torned. In such a manner, the role of the accused persons cannot be ascertained in the trial and they may get the benefit of acquittal.

The seizure memo dated 18.07.1997 was torn on the left side lower corner of the second page, in this portion, which is partly torn bear the signatures of Mr. S.S. Gupta, Company Secretary of M/s Ansal properties vide the Seizure memo i.e. the document of the register of Directors, Members, Director’s share holding, share transfer register and minutes of meeting of Directors were seized.

Page no. 123 of the file of the Delhi Fire Services was found half torn from lower portion. The file was seized by the IO vide seizure memo dated 12.07.1997 and the said page was actually a letter dated 28.11.1996 from Delhi Fire Services that they have rectified the defects in the Uphaar Cinema pointed out by Delhi Fire Services. This letter proves that Ansal properties of which accused Sushil Ansal was the Chairman controlling the day to day functioning of Uphaar Cinema. The said letter was found half torn from lower portion which bears the noting of Delhi Fire Service office on it.

One register of occurrence book of control room headquarters Delhi Fire services which was seized by the IO during investigation, its page from 363 to 400 were missing. Its relevant page was 379, which pertains to the departure of accused H.S. Panwar, Fire Officer for inspection of Uphaar Cinema on 12.05.1997. These documents shows the duties of various employees of Fire Station of Bhikaji Cama Palace. Its relevant page no. 379 proves that the accused H.S. Panwar was the Fire Officer who inspected the Uphaar Cinema on 12.05.1997 and had issued the NOC in their favour.

One occurrence book register of Bhikaji Cama Place, Fire Station, New Delhi containing page 1 to 400. Its pages from 95 to 104 were missing and on page no. 109 to 116 ink was spread. The relevant pages are 96 to 113 which contains the inspection of Uphaar Cinema from fire safety point of view and moment of fire officer to attend fire calls. The relevant missing pages carry the inspection report of Uphaar Cinema by the officials of Fire Services by overlooking the absence of necessary safety measures.

Casual leave register maintained at headquarters Delhi Fire Services from the period 1995-1996 pages no. 45-50 were missing. The relevant page is 50 which deals with the causal leave status of the accused H.S Panwar on 22.12.1996. This page shows that H.S Panwar was on causal leave but he had signed the inspection proforma dated 22.12.1996 showing that he had conducted the inspection. The relevant missing pages shows that H.S. Panwar was on causal leave yet he inspected the Uphaar Cinema on 22.12.1996 which shows his collusive relations with Ansals, the owner of Uphaar Cinema.

Four cheques, one cheque no. 955725 dated 26.06.91 of Rs. 50 lacs is signed by accused Sushil Ansal as one of the authorized signatory of Green Park Theaters and Associated Pvt. Ltd and Ansal Theaters and Club Hotels Pvt. Ltd was found missing with its seizure memo dated 27.08.1997 .

(i) Cheque no. 805578 dated 30.11.1996 of Rs. 1.5 lacs;

(ii) 805590 dated 20.02.97 of Rs 2,90,0550/-

(iii) 183618 dated 23.05.96 for Rs. 9,711/- was signed by accused

Gopal Ansal as authorized Signatory of Green Park Theaters and Associated Pvt. Ltd and Ansal Theaters and Club Hotels Pvt. Ltd were found missing along with their seizure memo dated 18.07.98 and 22.08.1997. All these three cheques were the evidence to show control over the functioning of Uphaar Cinema.

File containing minutes of MD’s meeting and correspondence containing 40 pages which contains minutes of meeting wherein accused Gopal Ansal had attended the meeting on 22.02.1997, 02.07.1997, s1.05.1997 and 07.05.1997 in the capacity of MD and had shared the meeting for the regulation of day to day affairs of Uphaar Cinema. This document was an evidence to the fact that the accused Gopal Ansal was actively participating in the functioning of day to day affairs of Uphaar Cinema. Therefore, as per the case of the prosecution wherein it has been alleged that these three accused persons namely Sushil Ansal, Gopal Ansal and H.S. Panwar were also the accused in the Uphaar Tragedy case and were the main beneficiary if the above mentioned documents may not be produced in the court at the time of evidence since some of these documents are showing the connection between Gopal Ansal and Sushil Ansal in actively participation of day to day affairs functioning of Uphaar Cinema, their role being the main office bearer, responsible for management and safety of Uphaar Cinema. Accused H.S. Panwar was the Fire Officer during the relevant period and he inspected the Uphaar Cinema even when he was on casual leave. The above mentioned documents were such documents which directly indicates the role of accused persons namely Sushil Anasal, Gopal Ansal and H.S. Panwar and in the absence of the above mentioned documents it would have been a herculean task to the prosecution to prove its case against them. Therefore, these persons were the major beneficiaries of the tampering/torn/mutilating of the documents.

So far as role of accused Dinesh Chandra Sharma is concerned. It is alleged against him that he was the Ahlmad in the court of Ms. Mamta Sehgal, ld. ASJ, New Delhi, at the relevant time where the trial of the present case was going on and after the transfer of previous Ahalmad Sh. Gajraj Singh, after proper checking of record Dinesh Chandra Sharma took the charge of complete pending trial case including the Uphaar Tragedy case file and he received the file and documents with him in intact and good condition which is evident from the charge handing over report and no shortcomings were pointed out by accused Dinesh Chandra Sharma at the time of taking the charge from him. Since the handing over of the charge to him, the said file was remained in his custody and he was having the custody of the said file when the fact of missing, torn or mutilating of documents came into the knowledge of the learned court. Accused Dinesh Chandra Sharma was having dominion over the file and he was entrusted with the physical possession of the record and remained the custodian of the record.

Accused P.P Batra is also charge sheeted in the present case. So far as his role is concerned, accused Diensh Chandra Sharma used to meet him for getting photocopies of the documents in the office of Ansals at Ambadeep Building, K.G. Marg, New Delhi and he used to contact accused Dinesh Chandra Sharma through mobile phone and on the basis of call data record of accused Dinesh Chandra Sharma it was found that he had frequently contacted accused P.P Batra and other employees of the Ansals. Even after his dismissal from the service accused Dinesh Chandra Sharma met accused P.P Batra and sought help for getting an employment and he referred him to A Plus securities where he was given a job of field officer. The role of accused P P Batra has been shown of connecting link between Dinesh Chandra Sharma, Ansals, Anoop Singh and D.V. Malhotra. He was in regular touch with accused Dinesh Chandra Sharma during the period when he was working as Ahalmad in the court of Ms. Mamta Sehgal, ld. ASJ and even after the dismissal from the services he was in touch with accused P.P. Batra and same fact is supported by the call record data of their mobile phones.

Accused Brig. D.V. Malhotra was the general Manager of Star Estate Management Limited ( SEML). A Plus Securities had made an agreement with SEML to supply man power and contractual payment was given by SEML to A Plus Securities which was being run by Anoop Singh. It has been alleged that the records of the Registrar of Companies shows that 90% of share of SEML is held by Ansal Properties and Industries Limited in which accused Sushil Ansal was the director. Accused Dinesh Chandra Sharma was given appointment on the directions of Ansals through accused D.V.Malhotra who further recommended it to A Plus Securities and the salary was fixed @ Rs.15,000/- per month and the said payments were made to accused Dinesh Chandra Sharma in cash which was given to A Plus Securities by accused D.V. Malhotra for the payment to be made to accused Dinesh Chandra Sharma. Statement of witnesses Sh. Shiv Raj Singh and Sh. Anokhe Lal were recorded in support of his role. It is further alleged that accused Dinesh Chandra Sharma was paid abnormally higher amount for the post of field officer whereas A plus Securities agency had engaged field supervisor at that time for a sum of Rs 7500/- per month.

So far as role of accused Anoop Singh is concerned he was running the firm of A Plus Securities and Training Institute Pvt. Ltd. and provided the job to accused Dinesh Chandra Sharma on the recommendations of accused D.V. Malhotra. When he came to know about the investigation in the present matter he applied fluid on the concerned pages of wages register of A plus Securities agency containing the name of accused Dinesh Chandra Sharma as their employee to hide his name as well as the amount which was being received by accused Dinesh Chandra Sharma as his salary and after putting fluid over his name he wrote the name of some non existing person over it. Prosecution has relied upon the statement of Sh. Anokhey Lal and Sh. Shiv Raj Singh u/s 161 Cr.P.C qua his role and the fact of applying fluid over the name of accused Dinesh Chandra Sharma. FSL result also obtained which matched with the handwriting and signatures of accused Anoop Singh.

Charge sheet in the present case has been filed u/s 109/193/201/218/409/120-B IPC on the ground that conspiracy was hatched by the accused Sushil Ansal, Gopal Ansal, H.S. Panwar withDinesh Chandra Sharma through P P Batra for tearing/missing/obliteration/spreading of ink over the documents which was beneficial to them and accused D.V. Malhotra and Anoop Singh also facilitated the commission of crime and helped the Ansal brothers to arrange a job to Dinesh Chandra Sharma.

Arguments of the parties to the present case were heard at length on the point of charge.

It is argued that in Uphaar Tragedy case the documents were missing/tempered/mutilated and on 20.01.2003 learned public prosecution sought permission to lead secondary evidence and the accused persons voluntarily agreed to lead the secondary evidence in reconstruction of the missing and tampering documents which were allowed by the learned trial court. Ld counsel challenged the authenticity of the third supplementary charge sheet dated 12.02.2014. It is submitted that accused Dinesh Chandra Sharma was held responsible in the departmental inquiry by the inquiry officer for high carelessness, negligence, and serious misconduct and in the said proceedings no observations was given in respect to the criminality committed by the accused Dinesh Chandra Sharma, therefore, the findings given by the inquiry officer being the quasi judicial authority are binding upon this court. It is further argued that some of the missing documents were exhibited before their disappearance and when accused persons have given their consent for secondary evidence how they can be held guilty of conspiracy for missing/tearing/mutilating of the documents. So far as question of giving salary more than the existing rate does no mean that a private employer can not give salary to his employee as per his wishes. Ld. Counsel argued that in the present case sanction u/s 197 Cr.P.C is not obtained, therefore, the cognizance of offence can not be taken against the accused being the public servant without previous sanction. Apart from this, there is no recovery of torn/mutilated documents from the possession of accused Dinesh Chandra Sharma. It is further argued that handwriting of Anoop Singh taken by the IO at the time of investigation can not be read in evidence since requirement of Section 311A Cr.P.C not complied with and only with the permission of the court such specimen and handwriting of accused can be taken. It is submitted that at the time of framing of the charge if two views are possible the view favouring the accused should be sadopted. It is submitted that accused Dinesh Chandra Sharma is not responsible for misplacement of the documents since there is no entrustment of record/file to him as proper handing over and taking over of the charge has not taken place at the time when Dinesh Chandra Sharma joined the said court of Ms. Mamta Sehgal, ld. ASJ, PHC, New Delhi. In the absence of proper handing over and taking over of the charge the previous Ahalmad is responsible for misplacement of all the documents. The offence alleged against the accused persons are not made out at the most section 204 IPC Destruction of document and electronic record to prevent its production in evidence is attracted. It was argued that to attract Section 193 IPC complaint/ sanction u/s 195 Cr.PC is required but the same is not filed along with the charge sheet. So far as offence alleged against the accused persons under Section 120-B IPC is concerned is regarding conspiracy which does not made out since the timing of conspiracy is important and it has not been clarified by the investigating agency when the conspiracy was started and when it ended. As per the facts of the case, it is not clear when the conspiracy started for the commission of the crime and no such evidence is available in this regard and there is no concept of deemed conspiracy as mentioned in the charge sheet. Section 10 of Evidence Act can not be stretched from the period prior the conspiracy to the period thereafter. Ld counsel further argued on the scope of Section 8 of Indian Evidence Act and submits that there was no benefit to the accused in missing, tearing off or mutilation of the above said documents. Apart from this, the benefit to the accused persons as alleged is after the removal of services of accused Dinesh Chandra Sharma and registration of FIR of the present case, therefore, no charge of conspiracy is made out against the accused persons. So far as Call detail record is concerned the mandatory certificate u/s 65B was not obtained, hence, it can not be read in evidence against the accused persons.

As per ld. Defence counsel criminal breach of trust is not attracted since the property involved in the present case is not capable of misappropriation and accused was never entrusted with the property since no proper handing over and taking over of charge has been taken place. Moreover, he was not having dominion over the property since in a Court functioning file used to travel from one person to another, some time in the hands of Reader, Naib Court, Public prosecutor etc., in such circumstances, Ahalmad of the Court solely can not be said of having exclusive dominion over the property and responsible for missing of the documents from the file as it can take place at any of these stages and misappropriation or conversion of the property should be necessary under section 406 IPC for his own use. No document has been placed on record by the prosecution about taking of the charge of court record/documents/file etc by the accused Dinesh Chandra Sharma from the previous Ahalmad. To attract Section 406 and 409 IPC entrustment of the property should be there and the file with the Ahalmad does not qualify the definition of property as enumerated in Section 22 of IPC. It is argued that everywhere in the judgment of Uphaar Tragedy case the word ‘document’ has been used instead of property and Section 29 IPC defines document and the same does not cover the property as per section 405 IPC. It is also submitted that considering the allegations against the accused persons a case of mischief may be made out but not for the offence under Section 409 IPC. It is submitted that as per the facts alleged against the accused persons Section 166 IPC – Public servant disobeying law, with intent to cause injury to any person is attracted instead of Section 409 IPC. It is submitted by ld defence counsel that on 25.06.2004 accused Dinesh Chandra Sharma was terminated from the services and present case was registered against him and he has been made victim of double jeopardy. So far as giving of job to the accused Dinesh Chandra Sharma is concerned it is admitted by accused Anoop Singh in his statement that there is no illegality in providing job to a person even if he is terminated from the services and for this facilitation he cannot be made as accused of criminal conspiracy and fluid was applied by the company people only in the fear that accused Dinesh Chandra Sharma is wanted in a case and by making correction in his own records does not amounts to tempering of the record or causing disappearance of evidence of offence to screen offender is made out against him (Anoop Singh) which connect him with the accused Dinesh Chandra Sharma in commission of the offence and to prove this a strong suspicion should be there. Mere association to the other accused persons is not adequate to bring accused Anoop Singh under the ambit of offence of conspiracy and other charges.

It is argued by ld. Counsel for accused P.P Batra that he was merely steno in the office of Ansals and used to meet accused Dinesh Chandra Sharma for arranging copies and update and after his dismissal to help him out he referred accused Dinesh Chandra Sharma to A Plus Securities for a job. He never acted as a conduit in the conspiracy and he was merely a steno in such a big business house, hardly had any interaction with his Boss and he never made any calls directly to Sushil Ansal and Gopal Ansal. It is stated that he was merely a clerk and can not dare to make a call or have a meeting with the owner of his company. It is further stated that except the disclosure statement of accused Anoop Singh there is nothing against accused P.P. Batra in the present case. Ld defence counsel relied upon the judgment of Hon’ble Supreme Court of India in Neelu Chopra & Anr Vs. Bharti 2009(4) JCC 3021 In order to lodge a proper complaint, mere mentioning of Sections and language of those Sections is not at all to be the end of the matter, what is required to be brought to the notice of the Court is the particulars and events of the offence committed by each and every accused and the role played by each and every accused in committing the offence. It is further argued that this case must be decided on the basis of evidence available on record and conviction in the criminal case can only be passed by the court on the basis of evidence, material and record of the case only. It is argued that evidence recorded in another case can not be taken into account in arriving out at a decision of the matter in hand. It is further argued that the documents filed along with the last supplementary charge sheet should not be relied on as these documents were with the prosecution even before filing of the present charge sheet dated 12.02.2007. In support of his contentions, he also relied upon the judgment of Leo Roy Frey Vs. Superintendent Jail Amritsar & Anr. AIR 1958 SC 119. This judgment is about conspiracy proceeds the commission of crime and complete before crime is attempted or completed. The another cited judgment CBI Vs. K. Narayan Rao 2012 (9) SCC 512 is on the point that even if some facts are proved to have committed it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy.

Ld. Defence counsel raised the point that in the present case sanction u/s 197 Cr.P.C is not obtained, therefore, the cognizance of the offence can not be taken against the accused being public servant without prior sanction. Section 21 I.P.C defines ‘public servant’. Several heads of public servant has been mentioned in this section. The protection given in Section 197 Cr.P.C is applicable to the judge or magistrate or a public servant not removable from his office save by or with the sanction of the government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction. As per this section, the essential ingredients to attract section 197 Cr.P.C. are :

i) that the offence must be committed by a public servant

ii) the public servant employed in connection with affairs of the union or a State is not removable from the office saved by or with the sanction of the Central government / State government,

iii) the alleged act has been committed by the public servant while acting in discharge of his official duties.

The public servant as defined in section 21 of IPC also finds support from the judgment of Government of India Vs. Sukhlal Singarani Collieries Company Limited 1994 Cr.LJ 418 (AP) wherein it was held that “the public servant is not the one who can not be removed from his office with the sanction of Central Govt or State Government for such public servants no sanction u/s 197 Cr.P.C is required to prosecute him”.

In the present case accused Dinesh Chandra Sharma does not fall under the category of a public servant as defined u/s 197 Cr.P.C, therefore, no prior sanction for prosecution is required in the present case.

Ld defence counsel also argued on the point that specimen handwriting and signature of accused Anoop Singh was not obtained in accordance with the procedure established under Section 311A of Cr.P.C. which gives power to a Magistrate to direct for obtaining the specimen handwriting and signatures of an accused for the purpose of investigation. If the specimen handwriting and signatures are not taken by moving appropriate application by the prosecution before the magistrate it does not make such specimen handwriting and signatures irrelevant for the purpose of the trial. The question of obtaining the specimen handwriting and signatures of the accused persons by the IO forcibly can be agitated by the learned defence counsel at the time of trial. At the stage of charge, going into the minute detail is not warranted.

So far as the fact of tampering of record of A plus Securities is concerned, as per record, the statement u/s 161 Cr.P.C of Mr. Anokhey Lal and Mr. Shiv Raj Singh was obtained by the IO and they have stated in their respective statements about applying of fluid on the relevant register, therefore, not moving the application for obtaining specimen handwriting and signatures of the accused by the IO may be termed as irregularity but cannot be termed as illegal.

During the arguments very important point raised by ld defence counsel is qua Section 65B of Indian Evidence Act on the ground that the Call Detail Record of phones calls of accused Dinesh Chandra Sharma and PP Batra obtained by the IO does not bear the mandatory Certificate as required under section 65B of Indian Evidence Act. It is also stated that at the time of filing of the charge sheet this certificate was not filed and in the absence of the said certificate CDR’s are not admissible in evidence and the benefit of the same be given to the accused. In my opinion, it is not the appropriate stage to raise this issue and it can be raised and put to the witness during trial in evidence, which is yet to arrive.

According to section 63 of Indian Evidence Act secondary evidence means and includes, copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies.

Section 65 enables secondary evidence of the content of a document to be adduced if the original is of such a nature as not to be easily movable. In such circumstances, the records are certified by a responsible officer of the service providing company and can be lead into evidence of a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirement of section 65B which is a provision dealing with admissibility of electronic records and there is no bar to adduce secondary evidence under the other provisions of the Indian Evidence Act. Therefore, despite the absence of certificate under section 65B prosecution still have the opportunity under the relevant provisions i.e section 63 and 65 of Indian Evidence Act to lead secondary evidence regarding those CDRs and this is a matter of evidence which can not be decided at the stage of charge. Reliance is placed on State (NCT of Delhi ) Vs. Navjot Sandhu @ Afsan Guru (2005)11 SCC 600,AIR 2005 SC 3820.

Ld. Defence counsel also argued that in the present case charge sheet is also filed against the accused u/s 195 IPC alleging the offence u/s 193 IPC and necessary complaint u/s 195 CrPC which is mandatory for initiating the prosecution is not there. Section 193 IPC provides punishment for false evidence.

Section 195 CrPC defines Prosecution for contempt of lawful authority of public servants, for offence against public justice and for offence relating to documents given in evidence :-

For the offence enumerated in section 195 (1)(b) CrPC, the concerned court must have made complaint but the court itself can not take cognizance and try it. Section 193 IPC as alleged against the accused is part of Section 195 (1)(b)(i), a Complaint of public servant is not there, therefore, charges u/s 193 IPC are not made out.

Ld. defence counsel argued on conspiracy at length and relied upon various judgments of Hon’ble Supreme Court of India and various Hon’ble High Courts. It is argued that agreement between the parties which is essential to constitute a criminal conspiracy is missing. There is no express agreement between the accused persons to infer from their conduct in connections and existence of any constituent of conspiracy. In support of his contentions he has relied upon the judgment of Hon’ble Supreme Court of India in Kehar Singh & Others Vs. State ( Delhi Admn ) 1988 3 SCC 609

Applicability of section 10 in the Evidence Act is also argued and it is submitted that the Act of accused Dinesh Chandra Sharma can not be used as evidence against the others since he was the Ahalmad of the Court. If the documents were missing / tempered or mutilated under his charge as Ahalmad for which other accused Gopal Ansal, Sushil Ansal, H.S. Pawnar, D.V. Malhotra, P.P Batra and Anoop Singh can not be connected to the conspiracy since meeting of minds amongst the accused persons is missing and their conduct is also relevant under section 10 of Indian Evidence Act since P.P Batra was only the Steno in the office of Ansal Properties who used to meet accused Dinesh Chandra Sharma in connection with the pending case for the updates of the trial.

It is a settled law that act or action of one of the accused can not be used as evidence against the other. But section 10 of Indian Evidence Act carves out an exception to this law in case of conspiracy. There should be reasonable ground to believe that two or more persons have conspired together to commit an offence, i.e to say, there should be a prima facie evidence that a person was party to a conspiracy before his acts can be used against the conspirators. Reliance is placed upon the judgment of Bhagwan Sawroop Vs. State AIR 1965 SC 682. As per the case of Kehar Singh ( Supra ) generally a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence for the same. Prosecution will often rely on evidence of acts of various parties to infer that they have done in furtherance to their common intention. Prosecution will also often rely on circumstantial evidence. The court must inquire whether the two persons are independently pursuing the same end, they have come together to persuade the unlawful object. The former does not render them conspirators but later does. It is essential that offence of conspiracy requires some kind of physical manifestation of agreement, the express agreement, however, need not to be proved. Nor actual meeting of any two persons is necessary nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.

In P.K. Narayanan Vs. State of Kerala 1995 SCC (1) 142 1994 SCALE (4)740 Criminal conspiracy can be proved by direct or circumstantial evidence, circumstances must established that the offence was committed in pursuance to an agreement between the parties to the alleged conspiracy – such circumstances must be incapable of any other explanation – mere suspicion and surmises or inferences unsupported by cogent evidence is not sufficient. Reliance is also made on the judgment of Firozuddin and Bashiruddin & Ors Vs. State of Kerala 2001 SCC (Cri ) 1341 It was held in Sushil Suri Vs. CBI AIR 2011 SC 1713 that “mere proof of an agreement between the accused for commission of such crime alone enough to bring about the conviction u/s 120-B and the proof of any overt act by accused or by any one of them would not be necessary”.

In view of the judgments of the Hon’ble Supreme Court, I am of the view that so far as role of accused Sushil Ansal is concerned he was the Chairman of Ansal Properties and controlled the day to day functioning of Uphaar Cinema, Green Park, New Delhi.

Accused H.S. Panwar was the Fire Officer and inspected the Uphaar Cinema and issued the NOC and accused H.S. Panwar was on casual leave yet he inspected the Uphaar Cinema on 22.12.1996.

Accused Gopal Ansal was the authorized signatory of the Green Park Theaters and Associated Pvt. Ltd and he was actively involved in the day to day functioning of the Uphaar Cinema and also attended several meetings under the capacity of Managing Director of the Uphaar Cinema.

These three accused were also accused in the main Uphaar Tragedy case wherein all of them has been convicted uptill Hon’ble Supreme Court of India and already Hon’ble High Court of Delhi and Hon’ble Supreme Court of India has given their observations regarding the role and accusation against these accused persons in the Uphaar Tragedy case. Here, in the present case, it has been alleged against the accused persons that the above mentioned documents were vital for the purpose of trial in Uphaar Tragedy case. Had those documents were not been there on the file, it could have benefited the accused persons in the trial of the case and as per the complaint the said documents were tempered mutilated and torned. In such manner, the role of the accused persons can not be ascertain in the trial of Uphaar Tragedy case and they may get the benefit of acquittal in that case.

In the present case three accused persons namely Sushil Ansal, Gopal Ansal and H.S. Panwar conspired with Dinesh Chandra Sharma through accused PP Batra for tempering, missing, obliteration, spreading the ink over the documents which were of their benefit while the case against Sushil Ansal, Gopal Ansal and H.S. Panwar was already pending in the Court of Ms. Mamta Sehgal, ld. ASJ, New Delhi. The accused P.P. Batra being their employee used to meet accused Dinesh Chandra Sharma, the Ahlmad of the court for the purpose of latest update of the case and during the trial of the case Sushil Ansal, Gopal Ansal and H.S. Panwar through P.P Batra had an agreement with accused Dinesh Chandra Sharma, who was incharge and the custodian of the case file of the said court  for tempering/ missing/obliterating and spreading the ink on the documents which were vital for the trial and sufficiently containing incriminating evidence against these three accused persons.

Accused P.P. Batra acted as a link point between these accused persons and IO had collected the Call detail report of mobile numbers of accused Dinesh Chandra Sharma and PP Batra which prima facie establish that they used to talk with each other very frequently. Departmental inquiry conducted against the accused Dinesh Chandra Sharma established his guilt that he was responsible for the missing, tempering, obliterating and spreading of ink on the record of Uphaar Tragedy case in the official capacity being Ahlamd/Incharge and having dominion over the case file. In the said departmental proceedings he was found guilty of the high carelessness and negligence amounting to serious misconduct on his part resulting in loss of documents of one of the most important case of CBI of the city i.e. Uphaar tragedy case. It has been argued that the prosecution has not shown the period of the conspiracy as it is not clarified when it started and when it ended and as per the defence the post conspiracy conduct of the persons are not relevant to attract the offence under section 120-B IPC. Upon this, I am of the view that Section 8 of The Indian Evidence Act deals with motive, preparation and previous or subsequent act which says any act is relevant which shows or constitute the motive or preparation for any fact in issue or relevant fact. This section further says that the conduct of an accused preceding, attending and following the incident is relevant to find out whether one shared the common intention with other accused in committing the crime. Reliance is placed on Domu Chopadi Vs. State 1987 CrLJ 1481 Orissa. Section 8 of Indian Evidence Act is relevant to connect accused D.V. Malhotra and Anoop Singh who came into picture when accused Dinesh Chandra Sharma was removed from his services and he asked accused P P Batra for a job and Ansals who were holding 98% Share in SEML provided him a job in A plus securities through D.V. Malhotra which was being run by accused Anoop Singh, D.V. Malhotra was General Manager of SEML and he gave accused Dinesh Chandra Sharma cash of Rs. 15,000/- per month through A plus securities as his salary on the directions of Ansal brothers. Accused Anoop Singh who was managing the A plus securities to hide his connection with Dinesh Chandra Sharma he tempered with the attendance register so that a vital piece of evidence which connects him to accused Dinesh Chandra Sharma, D.V. Malhotra and Ansal brothers may be wiped out. In the GEQD report handwriting and signatures are already matched. In these circumstances meeting of mind and an agreement to temper the court record among all these accused persons at the time when the trial of that case was going on can easily inferred. All the accused persons were assigned a specific role at that time and after removal of accused Dinesh Chandra Sharma from his service those persons i.e. Anoop Singh and D.V. Malhotra who were till then acting behind the curtain came under the spot light. Therefore, all the ingredients of conspiracy amongst these accused persons were there from the beginning, hence, offence was committed in pursuance of an agreement made between the accused persons who were not party to the alleged conspiracy.

In the present case also conspiracy was hatched amongst the accused persons in secrecy and there are certain direct evidence already available and since the beginning all the accused persons have done the act in furtherance of their common intention and the circumstantial evidence collected by the IO in the present case prima facie shows connection of the accused persons to the alleged crime and this is not the case where two persons are independently pursuing the conspiracy. In fact, they are having a common object to temper with the court record in pursuance to achieve an unlawful object. It is true that accused Sushil Ansal, Gopal Ansal and H.S. Panwar may not be in direct contact of accused Dinesh Chandra Sharma but through accused P.P. Batra they were very much in his contact and to show conspiracy the express agreement is not required to be shown. The facts and circumstances of the case shows that there was transmission of thoughts sharing to the unlawful design exists. The facts of the present case are not as such based upon mere suspicion there is a grave suspicion to commit the offences exist.

Arguments specifically addressed on Section 409 IPC, and it is argued that section 409 IPC does not attract against the accused Dinesh Chandra Sharma. Since accused neither entrusted with the property nor having any dominion over the property in the capacity of a public servant.

Section 405 IPC deals with Criminal breach of trust and for committing criminal breach of trust (i) there should be an entrustment or dominion over the property; ii) the person entrusted either have dishonestly misappropriated or converted the property to his own use or dishonestly using or disposing of that property in violation of any directions of law prescribing the mode in which such trust is to be discharged. Section 405 IPC applies to who in any manner entrusted or dominion over the property or dominion over the property and if the person who has been entrusted with dishonestly misappropriates or converts the property to his own use he commits criminal breach of trust Reliance is placed on R. Venket Krishnan Vs. CBI AIR 2010 SC 1812

In the present case accused Dinesh Chandra Sharma was the public servant and being the public servant he was entrusted with the files of the court of Ms. Mamta Sehgal, ld. ASJ, PHC, New Delhi along with file of Uphaar Tragedy case and he being the incharge and Ahalmad of the court having dominion over the property, in his capacity of a public servant, by tempering and obliterating or missing the documents of the said case has committed criminal breach of trust in respect of the documents of case file. All the ingredients of Section 409 IPC are attracted in the present case.

The averments of the ld defence counsel that files under the possession of Ahlmad cannot be termed as property is not tenable. Since Section 22 of IPC defines movable property which includes the corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth. In view of the said definition the file and the documents are well within the definition of movable property.

According to the ingredients of Section 409 IPC the accused must be a public servant, he must be entrusted with the property, having dominion over the same in that capacity and have committed criminal breach of trust in respect of such property. Such ingredients are present in this case against the accused persons, hence, they can be charged accordingly.

To bring the offence under section 201 IPC following ingredients are necessary :

i) committal of an offence ;

ii) the person charged with the offence u/s 201 IPC once have a knowledge or believe that offence has been committed.

iii) the person charged with said offence have forged, the disappearance of evidence, act done with the intention of screening the offender from the legal punishment.

The most necessary ingredient of Section 201 IPC is causing any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment.

As per the charge sheet Section 109 IPC also attracted. According to it following ingredients are necessary to establish the same ;

i) if the act is committed in consequence of the abatement

ii) Act of offence is said to be committed in offence of abatement when it is committed in consequence of the instigation or pursuance of the conspiracy with the aid which constitutes the abatement.

In the present case all the accused persons have conspired together and there was abatement from the side of accused Sushil Ansal, Gopal Ansal and H.S. Panwar. Since these three accused persons were the accused in the Uphaar Tragedy case and for screening them in the said case a conspiracy was hatched and all the accused persons joined them to become the part of the conspiracy for the benefit of these three accused persons and in consequence of the instigation, the conspiracy hatched, all the accused persons joined hands with the motive to achieve the common object. Accused persons abated the offence falling under section 409/201IPC. The abatement of offence was taken place to the benefit of Sushil Ansal, Gopal Ansal and H.S. Panwar and these three persons instigated the other in destroying, mutilating and spreading over the ink on the documents of the case file in furtherance of criminal conspiracy . Reliance is placed on the judgment of Arjun Singh Vs. State of H.P. AIR 2009 SC 1568

In the present case, the accused Dinesh Chandra Sharma in furtherance of conspiracy with Sushil Ansal, Gopal Ansal and H.S. Panwar having full knowledge that the offence alleged against the accused persons in Uphaar Tragedy case is under section 304/304A/337 IPC and which is punishable with imprisonment upto ten years and the said documents pertains to the said case were crucial for the trial of the case entire case of prosecution was based upon the said documents since those documents was specifically describing the role of accused Sushil Ansal, Gopal Ansal and H.S. Panwar with respect to the daily working of Uphaar cinema. Accused Sushil Ansal, Gopal Ansal were in the capacity of owner/ Managing Director/Chairman of Uphaar Cinema and H.S. Panwar was the person who was responsible for inspection and issuance of Fire Certificate to the Cinema. These four accused persons in furtherance of their criminal conspiracy along with other co accused namely Dinesh Chandra Sharma ,P.P. Batra, D.V. Malhotra and Anoop Singh with intention to screen Sushil Ansal, Gopal Ansal and H.S. Panwar committed the act of disappearance/ missing/ tampering/ obliterating/ spreading the ink over the said documents so that no evidence would remain against them and they may get the benefit of acquittal in Uphaar Tragedy case. Reliance is placed on Jayendra Saraswati Swamigan Vs State of Tamil Nadu AIR 2006 SC 6. Sukhram Vs. State of Maharashtra ( 2007) 7 SCC 502

Apart from this, in furtherance of conspiracy the accused Anoop Singh tempered with the records i.e. attendance register which bearing the name of accused Dinesh Chandra Sharma and the act of tampering with the record was aimed at breaking of the chain of conspiracy so that nobody could find out who are the person behind the seen in the tampering with the documents of Uphaar Tragedy case. Since subsequent act of accused D.V.Malhotra, Anoop Singh was important in the present case and their job was to conceal the fact of the employment of accused Dinesh Chandra Sharma in A plus Security with the help of accused D.V. Malhotra so that accused Sushil Ansal, Gopal Ansal and H.S. Panwar may not come into the picture. Report of GEQD in respect of specimen handwriting and signatures of accused had already matched, hence, the act was done to hiding out the fact of conspiracy among other accused persons.

In Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra ( 2008 ) 10 SCC 394 it was held that “ if the evidence produced give rise to a grave suspicion then only charge should be framed. In the present case, the facts and circumstances of the case are not which rise to mere suspicion only but are of grave suspicion”.

At the stage of Section 227-228 Cr.P.C, the court is required to evaluate the documents and material available on record with a view to find out if the fact emerging therefrom taken at the face value discloses the existence of all the ingredients constituting the alleged offence.

If on the basis of the material available on record, the court could form an opinion that the accused might have committed an offence, it can frame the charge though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing the charge, the probative value of the material on record can not be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

I find sufficient material on record which indicate towards the commission of offence and the involvement of the accused Sushil Ansal, Gopal Ansal, H.S. Panwar, Dinesh Chandra Sharma, P.P. Batra, D.V. Malhotra and Anoop Singh in the same. Therefore, charge for the offences punishable under section 120-B/109/201/409 IPC be framed against the accused persons.

Announced in the open court

on : 31.05.2014

( SANJAY KHANAGWAL )

CHIEF METROPOLITAN MAGISTRATE,

NEW DELHI.

31.05.2014