* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on : 27th July,2012 Pronounced on : 3rd August, 2012 + CRL.REV.P. 328/2012 SAJJAN KUMAR ..... Petitioner Through : Mr.U.U.Lalit, Sr. Advocate instructed by Mr.Vineet Malhotra, Mr.R.D.Rana &

Mr.Aman Khan, Advs.

versus CENTRAL BUREAU OF INVESTIGATION .... Respondent Through : Mr.Vikas Pahwa, Sr.Advocate instructed by Mr.D.P.Singh and Ms.Tarranum Cheema, Advs.

CORAM:

HON’BLE MS. JUSTICE PRATIBHA RANI %

1. The petitioner Sajjan Kumar is facing trial for committing the offence punishable under Sections 109 r/w 147/148/149/153- A/295/302/396/427/486/449/505 IPC & 201 IPC in case RC No.24/2005 registered on the directions of Government of India vide D.O. No.U-13018/5/2005 dated 24.10.2005 to investigate/re-

investigate the case FIR No.416/84, PS Delhi Cantt, New Delhi.

2. In the FIR and the chargesheet filed against the petitioner, apart from other material, the prosecution relied on the affidavits Ex.PW1/A and B filed by Smt. Jagdish Kaur (PW-1) before Justice Ranganathan Commission and Justice Nanavati Commission and the statement Ex.PW1/C made before Justice Nanavati Commission.

3. To prove the charge, the prosecution led evidence. During examination-in-chief of PW-1 Smt.Jagdish Kaur, she proved the two affidavits as Ex.PW1/A and B as well as statement made before Justice Nanavati Commission as Ex.PW1/C. Cross examination of PW-1 Smt.Jagdish Kaur by accused Balwan Khokhar and Krishan thorugh Mr.S.A.Hashmi, Adv. was in progress when on 12.07.2010 Mr.R.S.Cheema, Senior Advocate for the CBI raised an objection and recorded by the Trial Court as under :

’12.07.2010 PW-1 Smt.Jagdish Kaur w/o Late Sardar Kehar Singh, recalled for further cross examination.

On SA (At the very outset it is stated by Sh.R.S.Cheema, Senior Advocate for the CBI have argued that affidavits/statements filed by the witnesses before the Commissions under appointed under Commission of Inquiry Act 1952 cannot be used for the purpose of contradiction/impeaching the testimony of the witness. This is opposed by the defence counsel that the affidavits/statements filed before the Nanavati Commission and Ranganath Commission form the very the basis of registration of FIR and CBI got the same exhibited and is relying upon the same and therefore now it cannot be said that the defence cannot use those affidavits/statements for the purpose of impeaching the testimony of the witness. It is further stated that in case appropriate application is moved, they will file the suitable reply and contest the same.) Matter is left open.’

4. No such application as mentioned in the above proceedings was moved by the CBI till the stage of final arguments. When the case was listed for final arguments, accused Sajjan Kumar filed an application on 15.05.2012 requesting the Court to consider the peculiar circumstances created by the prosecution and as per mandate of Hon’ble Supreme Court of India, he prayed to the Court to decide the objection dated 12.07.2010 which had been left open by the Court, before commencement of final arguments by defence side.

5. After hearing learned counsel for the petitioner Sajjan Kumar as well as CBI, the learned Trial Court sustained the objection by CBI observing that in view of the provision of Section 6 of Commissions of Inquiry Act, the decision of Apex Court in the case Kehar Singh & Ors. vs. The State (Delhi Admn.) AIR 1988 SC 1883, the petitioner cannot be permitted to confront the witness in respect of Ex.PW1/A to C. In the last para No.29 of the impugned order, the learned Trial Court arrived at the following conclusion :

‟29. Interpretation given to Section 6 of the Act as referred to above in Kehar Singh‟s judgment leaves no doubt that in the present case bar under Section 6 of Commissions of Inquiry Act will be attracted and Section 6 is very much attracted and applicable in this case. Question framed in this order is accordingly answered to the effect that bar under section 6 of the Commissions of Inquiry