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IN THE HIGH COURT OF DELHI AT NEW DELHI
HON’BLE MR. JUSTICE VIPIN SANGHI
SAJJAN KUMAR .............. Petitioner
versus
C.B.I. ............... Respondent
Crl. Rev. P. No.261/2010 & CRL MA No.7006/2010
Decided On : 19.07.2010
B) Indian Penal Code, 1860 - Section 120B r /w Sections 153A, 295, 302, 395, 427, 436, 339, 505, 109 r/w Sections 147, 148, 149, 153A, 295, 302, 395, 427, 435, 339, 505:- Charge framed against the petitioner, a congress M.P. , that he is guilty of making Provocative speeches made instigating mob to attack and kill Sikhs supported with statements of prosecution witnesses. – Protest petition can not be allowed on the grounds citied since it is for the petitioner to disprove by cross examining prosecution witnesses.
C) Indian Penal Code, 1860 - Section 120B r/w Sections 153A, 295, 302, 395, 427, 436, 339, 505, 109 r/w Sections 147, 148, 149, 153A, 295, 302, 395, 427, 435, 339, 505 - Criminal Procedure Code, 1973 - Sections 173, 173(2) Constitution of India, 1950 - Article 21 _ Delay of 21 years and 24 years in recording the statement – Investigations delayed in such cases of mass violence does not vitiate prosecution –Examples galore of instances where role politicians in such riots are investigated even by commissions of inquiry. – Having enjoyed immunity from facing prosecution petitioner had enjoyed enough liberty and framing of the charge sheet in no way causes prejudice.
D) Indian Penal Code, 1860 - Section 120B r/w Sections 153A, 295, 302, 395, 427, 436, 339, 505, 109 r/w Sections 147, 148, 149, 153A, 295, 302, 395, 427, 435, 339, 505 - Criminal Procedure Code, 1973 - Sections 173, 173(2) – Credibility of statements of prosecution witness recorded after a long lapse of time after the alleged incident cannot be examined at the time of framing charge sheet, but after commencement of trial.
E) Constitution of India, 1950 - Article 21- Where the delay in investigation is a part of “systematic delays”, interest of other stakeholders in fair prosecution of the accused shall be taken into account.
F) FIR :- By giving a new number cm to the FIRas per usual practice invogue, it cannot be treated as second FIR.
G) Criminal Procedure Code, 1973 - Sections 170, 173, 173(2), 173(8):- An untraced report of a police officer without due authorization and its cancellation thereof substituting by an investigation by CBI can not be considered as conclusion of trial constituting a bar to the subsequent investigation.
VIPIN SANGHI, J.
1. The present petition has been filed by the petitioner under Sections 397 & 401 Cr. P.C. to challenge the order dated 15.05.2010 passed by the Court of Ms. Sunita Gupta, District Judge-VII/NE-cum-ASJ, Karkardooma Courts, Delhi in S.C. No.26/10, RC SII 2005 S0024 under Sections 109/147/148/149/153A/295/302/ 396/427/ 486/505/201 IPC.
2. By the impugned order the learned ASJ has ordered the framing of charge against the petitioner for offences under Section 120B read with Sections 153A, 295, 302, 395, 427, 436, 339, 505 IPC and also for the offence under Section 109 read with Sections 147, 148, 149, 153A, 295, 302, 395, 427, 435, 339, 505 IPC, besides framing of a separate charge for offence punishable under Section 153A IPC. At the same time the application of the petitioner seeking discharge has been rejected by the learned ASJ.
3. The charge sheet in question filed by the CBI, which forms the basis of the impugned order pertains, inter alia, to murder of five persons, namely, Kehar Singh and Gurpreet Singh, the husband and son of Smt. Jagdish Kaur, Sh. Raghvinder Singh, Sh. Narender Pal Singh and Sh. Kuldeep Singh. Apart from the petitioner, who has been arrayed as accused No.1, 11 other persons have been named as accused, out of which 4, namely, Ishwar Chand Gaur @ Chand Sharabi, Dharam Veer Singh Solanki, Balidan Singh and Raj Kumar @ Raja Ram, have already expired. Accordingly, they have not been chargesheeted. The other 7 accused are Balwan Khokhar (accused No.2), Mahender Yadav (accused No.3), Maha Singh (accused No.4), Capt. Bhagmal (Retd.) (accused No.5), Santosh Rani @ Janta Hawaldarni (accused No.6), Girdhari Lal (accused No.7) and Krishan Khokhar (accused No.8).
4. Case FIR No.416/1984 was registered at police station Delhi Cantt. on 4.11.1984 under Sections 147, 148, 149, 329, 436, 480, 302, 201 IPC against unknown persons on the complaint of Ms. Baljeet Kaur D/o late Avtar Singh r/o WZ-108, Raj Nagar Part-II, Palam Colony, Delhi. In her complaint, she made allegations of unlawful assembly, rioting with dangerous weapons and attack on her house by a mob of around 400-500 people on 1.11.1984, resulting in injuries to her parents and another attack on her house on 2.11.1984, in which her father was set on fire by the mob upon the instigation of her neighbour Mahender Sharabi. Later, her father had succumbed to his injuries. During the investigation of the aforesaid case at police station Delhi Cantt. some complaints were received in respect of similar incidents in the same locality. The investigation of these complaints was also taken up after clubbing them with FIR No.416/1984. After completion of the investigation by Delhi Police, five charge sheets were filed against 10 accused persons.
5. However, the name of the petitioner Sajjan Kumar did not figure as one of the accused in the said cases bearing Special Case Nos.10/1986, 11/1986, 31/1986, 32/1986 and 33/1986. The 10 accused persons were acquitted by the Court on various dates in the year 1986. These cases pertained to the murder of Avtar Singh, Harbhajan Singh, Joga Singh, Nirmal Singh and Avtar Singh, respectively. The details pertaining to these five cases have been tabulated in the final report filed by the CBI, a copy whereof has been placed on record.
6. In the year 1992-93, on the recommendation of Justice Jain-Agarwal Committee, further investigation into the incident of attack on the house of Jasbir Singh and the incident involving deaths of husband, son and cousins of Smt. Jagdish Kaur wife of Sh. Kehar Singh, was taken up by the Riot Cell of Delhi Police. A supplementary charge sheet was filed on 26.02.1993 against 4 accused persons, namely, Sunil Tiwari @ Raju, Hukum Chand, Mangat Ram and Balwan Khokhar in the matter of attack on the house of Jasbir Singh. This case was tried as special case No.28/93 and resulted into acquittal vide final order/judgment dated 30.04.1994.
7. After 1984 anti-Sikh riots in Delhi and other pla
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