Sushil Ansal v. State of NCT of Delhi

3. Detailed arguments have been advanced on behalf of the Petitioners and on behalf of the State. Even though the jurisdiction of the High Court to interfere with the Orders passed by the Sessions Court in a petition under Section 482 Cr.P.C is extremely limited, however, given the nature of the case, this Court permitted the learned Counsels to advance detailed arguments on merits of the case to ascertain as to whether the impugned Judgment dated 03.12.2021 suffers from perversity of such nature which would require interference of this Court.

4. This matter pertains to tampering with Court records which obstructs the free flow of justice and has the effect of striking to the core of the rule of law. Considering the gravity of the case, this Court permitted both the sides to argue on the merits of the case to satisfy itself as to whether the judgment of the Ld. Appellate Court requires interference or not.

CONTENTIONS OF THE PARTIES:

5. Mr. Arvind Nigam, learned Senior Counsel appearing for the Petitioner in CRL.M.C. 3276/2021, states that the power of the High Court while exercising its jurisdiction in the instant petition is co-terminus with the Appellate power. He states that the allegation against the Petitioner is one of conspiring to tamper with Court records. He states that it is alleged that the Petitioner has caused destruction of evidence under Section 201 IPC. He contends that the offence punishable under Section 201 IPC does not extend to documents which are in the custody of the Court. For this purpose, Mr. Nigam places reliance on the judgment of the Bombay High Court in Anverkhan Mahamadkhan v. Emperor, 1921 SCC OnLine Bom 126, and on the judgment of the Gujarat High Court in Jogta Kikla v. The State, AIR 1962 Guj 225. Mr. Nigam states that both the Bombay High Court and the Gujarat High Court, held that the conviction under Section 201 IPC cannot be maintained in respect of suppressed papers as these papers are not themselves evidence of the commission of theft. He states that Gujarat High Court followed the judgment of the Bombay High Court to arrive at the same conclusion.

6. Mr. Nigam further went on to state that in conspiracy cases, it is extremely important to fix the parameters of conspiracy. He contends that Section 10 of the Indian Evidence Act, 1872 (hereinafter, “IEA”) is based on the principle of agents and conspiracy cannot extend beyond the period where the object of conspiracy has been achieved or when it gets frustrated. He states that once the object of conspiracy gets frustrated, Section 10 of the IEA is not available and statements made or things done after the conspiracy cannot be taken into account. He further submits that the Courts below have erred in taking into account the fact that the Court Ahlmad - Dinesh Chandra Sharma, who was given the job after his dismissal from the service of the Court, would amount to continuing of conspiracy. He states that this was a very important factor considered by the Trial Court to hold that the conspiracy continued much beyond 2003 when it was found that the documents have been torn/mutilated and, therefore, it could not have been taken into account at all for the purpose of the case. Mr. Nigam states that if Section 10 of the IEA is to be applied even beyond the period of conspiracy which is frustrated/unearthed, then it would mean that all the accused who were partners in crime would be partners in perpetuity, which is contrary to the settled law.

7. Mr. Nigam further contends that in any event, secondary evidence was led and the documents were exhibited. He, therefore, states that there was no obstruction in the administration of justice. Mr. Nigam states that the cheques were recovered and, therefore, the Petitioner cannot be held guilty for the loss of cheques. He further states that records were kept in the Ld. Trial Court in a very shabby manner and during trial, these documents were not handled properly, and therefore, the Petitioners cannot be held guilty or liable for the acts done inside the Court. He states that D-24 was the only document that pertained to the Petitioners which was a cheque dated 26.06.1995 for an amount of Rs. 50 lakhs and the Petitioner had admitted this, and therefore, there was no reason to cause its disappearance and, further, the document was traced later. He further states that motive of the prosecutor is suspect. He states that no evidence was led by the prosecution regarding employment granted to the Ahlmad after he was thrown out of the service and for proving that the object of alleged conspiracy was achieved. He states that no benefit had been derived by the Ahlmad from the Petitioners herein till the time he was employed as a public servant. He states that there was a whole series of telephone calls between the principal accused and the Ahlmad, but there was nothing that could be used to state that the phone exclusively belonged to the Petitioner. He further states that there are 500 pages in the reply to the bail application, but there is nothing to state that there was any link between the Ahlmad and the Petitioner. He submits that the Petitioner is 83 years old and is suffering from various medical ailments which are life-threatening in nature. He states that even the Supreme Court had factored in the age of the Petitioner while considering the Petitioner‟s application for modification of sentence in a related case vide Orders dated 19.08.2015 and 09.02.2017.

8. Mr. Nigam relies on the judgment of the Supreme Court in Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682, to contend that the evidentiary value of the acts which have been done in furtherance of conspiracy is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. He, therefore, states that acts done beyond the period after conspiracy has been frustrated cannot be looked into. For the same proposition, Mr. Nigam relies on the judgment of State v. Nalini, (1999) 5 SCC 253, wherein the Supreme Court has held that a statement made by a conspirator before the commencement of the conspiracy is not admissible against the coconspirator under Section 10 of the Evidence Act. Similarly, a statement made after the conspiracy has been terminated on achieving/abandoning/frustrating its object or on the conspirator leaving the conspiracy in between, is not admissible against the co-conspirator. He, therefore, states that the fact that Dinesh Chandra Sharma was given employment by a different agency cannot be stated to be evidence available against the Petitioner herein and it cannot be said that the conspiracy would extend up to a point where Dinesh Chandra Sharma was given a job by the agency.

9. Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing for the Petitioner in CRL.M.C. 3277/2021, has culled out 11 parameters which, according to him, should be taken into account while deciding whether the sentence of a convict should be suspended or not, which are as under: i. The Court has a very wide discretion when it considers an application seeking grant of suspension of sentence. ii. The Court must adopt a liberal approach while suspending sentence of an accused. iii. The object of Court is not to punish the accused during the pendency of Appeal. iv. If the Court is satisfied that there is no chance of the accused absconding during the pendency of Appeal, it must suspend the sentence. v. If the Court is satisfied that the offence will not be repeated by the accused during the pendency of Appeal, it must suspend the sentence. vi. Appeals normally take a long time, and if sentence of an accused is not suspended during the pendency of appeal and the appeal is not decided within the limited time, then the appeal becomes infructuous. vii. The Court must also take into consideration the age of the accused. viii. The Court must also see the antecedents of the accused. ix. The Court must also see whether the accused were granted bail as under-trials. x. The Court must consider the same parameters for suspension of sentence as are stipulated under Sections 437/439 Cr.P.C. xi. The Court must keep in mind that tampering presupposes possession and control, and if the documents are available with numerous people, then there is no chance of tampering them.

10. Dr. Singhvi places reliance on the judgment of the Supreme Court in Angana v. State of Rajasthan, (2009) 3 SCC 767, wherein the Supreme Court has laid down the parameters for suspension of sentence during the pendency of appeal under Section 389 Cr.P.C. He also places reliance on the judgment of the Supreme Court in Kashmira Singh v. State of Punjab, (1977) 4 SCC 291, wherein the sentence of an accused who was sentenced to life imprisonment was suspended by the Apex Court. Dr. Singhvi also relies on the judgment of Supreme Court in Babu Singh v. State of Punjab (1978) 1 SCC 579, and Emperor v. H.L. Hutchinson, AIR 1931 All 356, to substantiate his contention regarding various parameters that have to be looked into to decide as to whether sentence of an accused be suspended or not. Dr. Singhvi has further adopted the arguments of Mr. Nigam to contend that conspiracy cannot extend to a period after conspiracy was frustrated. He states that the events beyond January 2003 cannot be taken into account. He states that the Ld. Trial Court placed too much emphasis on the fact that the Court Ahlmad was given employment, in order to come to a conclusion that the conspiracy was extended. Dr. Singhvi states that the Petitioner is 73 years old, having no previous criminal antecedents. He states that the Petitioner is a responsible citizen having roots in the society. He states that the Petitioner was on bail throughout the trial and he has not misused the same. Dr. Singhvi has also taken this Court through the medical records of the Petitioner to argue that the Petitioner is not keeping good health and, therefore, the sentence of the Petitioner should be suspended.

11. Per contra, Mr. Dayan Krishnan, learned Senior Counsel appearing for the State, submits that the parameters for grant of bail and parameters for considering an application for suspension of sentence under Section 389 Cr.P.C are different. He places reliance on the judgment of the Supreme Court in Preet Pal Singh v. State of U.P., (2020) 8 SCC 645, wherein the Apex Court has held that there is a difference between grant of bail under Section 439 Cr.P.C in case of pre-trial arrest and suspension of sentence under Section 389 Cr.P.C and grant of bail, post conviction. The Apex Court has held that while considering an application under Section 439 Cr.P.C, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the Courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception. However, in case of post-conviction bail by way of suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. He contends that the Apex Court in the said judgment has held that the Courts while considering an application for suspension of sentence and grant of bail, have to consider the prima facie merits of the Appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the Order granting bail, as mandated in Section 389(1) Cr.P.C. He further submits that the while considering an application for suspension of sentence, the Appellate Court only has to examine if there is such patent infirmity in the Order of conviction that renders the Order of conviction prima facie erroneous. He states that where there is evidence that has been considered by the Ld. Trial Court, it is not open to a Court considering application under Section 389 Cr.P.C. to reassess and/or re-analyse the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail. He further states that in the Main Uphaar case, after the Petitioners were convicted, this Court granted benefit of Section 389 Cr.P.C to the Petitioners herein vide Order dated 04.01.2008. He states that when this Order was challenged by AVUT and the CBI before the Supreme Court, the Supreme Court vide Order dated 10.09.2008 had reversed the said Order and refused to suspend the sentence of the Petitioners herein. He states that it was done primarily looking at the conduct of the Petitioner in tampering with the evidence which has resulted in the instant conviction. He further states that the Order of the Trial Court refusing to suspend the sentence of the Petitioners herein does not require any interference by this Court, and as was done by the Apex Court at the time of refusing to suspend the sentence of the Petitioners herein in the Main Uphaar Case, appropriate directions can be given to the Ld. Appellate Court to hear the appeal expeditiously and, if necessary, appropriate directions can be passed even for day-to-day hearing of the appeal.

12. Mr. Krishnan further contends that the Order on charge is clear and unambiguous. He states that the object of conspiracy was to ensure that certain key documents which would bring home the case of Section 304A against the Petitioners herein in the Main Uphaar case were mutilated and tampered and the only purpose of doing so was to secure the acquittal of the Petitioners herein. Mr. Krishnan states that even though the Petitioners were not successful in their endeavour, it has resulted in delay in the hearing of the matter. He states that the accused entered into conspiracy for committing various offences like criminal breach of trust by a public servant, being the Court Ahlmad - Dinesh Chandra Sharma, and, thereby, committing the act of missing/destructing/tampering/obliterating the documents which were vital for the case in order to give advantage to the Petitioners herein during trial of the Main Uphaar case. He states that the object was to secure acquittal or delay the trial as much as possible. He further states that the charge is clear as the accused P.P. Batra, who acted as a link between the Petitioners herein and the Court Ahlmad, remained in constant touch with the Court Ahlmad and after his dismissal from the service, the Court Ahlmad was provided a job at A-Plus Security Agency through P.P. Batra on the direction of the Petitioners herein for a monthly remuneration of Rs.15,000/- which was much more than his existing salary as a Court Ahlmad. Mr. Krishnan states that in any event, when this order on charge was challenged before this Court in Crl. Rev. P. No. 262/2016, 263/2016, 264/2016, 265/2016, this Court while affirming the said Order had observed as under:

the conspiracy was not the destruction of the documents, per se.

107. It is in fact, evident from the material hereinabove elaborated, that prima facie the object of conspiracy was to secure, favourable orders and the acquittal of Mr. Sushil Ansal, Mr. Gopal Ansal and Mr. H.S. Panwar, by employing illegal means. Therefore, all acts of commission and omission, done in furtherance of the object of the conspiracy, can be considered to form a part of the same offence of the alleged conspiracy. [Ref: State v. Nalini (supra)]

108. In this regard, it is also trite to observe that, it is not necessary that all the actors in the conspiracy must have joined the offence from its very inception. Conspiracy is a continuing offence and the acts of the persons who join the conspiracy at a later point in time, in furtherance of the object thereof, form a part of the same offence of conspiracy. [Ref: State v. Nalini (supra); Yakub Abdul Razak Memon v. State of Maharashtra (supra), Leo Roy Frey (supra)]

109. Therefore, it follows that the acts allegedly committed in furtherance of the objective of the conspiracy include, (i) the act of destruction of the documents forming a part of the judicial file, which were vital to the case of the prosecution in the Main Uphaar Trial as against Mr. Sushil Ansal, Mr. Gopal Ansal and Mr. H.S. Panwar; and (ii) providing a job to Mr. Dinesh Chand Sharma, in order to „take care‟ of him in lieu of his role in the conspiracy.

110. In view of the foregoing, the argument of the revisionists that the acts of commission and omission by Mr. D.V. Malhotra and Mr. Anoop Singh, did not form a part of the same alleged conspiracy, does not hold water and is thus, rejected."

13. Mr. Krishnan places reliance on the judgment of the Supreme Court in Main Pal v. State of Haryana, (2010) 10 SCC 130, wherein the Supreme Court after relying on the judgment of Willie (William) Slaney v. State of M.P., AIR 1956 SC 116, had held that when an accused is tried by a competent court, if he is informed and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity to defend himself, then, provided there is „substantial‟ compliance of law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. He states that the accused knew and had been given notice of the fact that the charge against them was that the conspiracy extended up to a point where the Court Ahlmad was provided a job at the instance of the Petitioners herein at a higher salary which was in furtherance of conspiracy.

14. Mr. Krishnan has thereafter taken this Court through various documents to show how these documents were relevant for the purpose of achieving conviction and how it went to the defence of the accused in the trial to establish that the documents were tampered with in order to achieve acquittal. He further states that a perusal of the documents which were tampered with would show that seizure memo dated 18.07.1997 contained documents from Mr. S.S. Gupta, Company Secretary of Ansal Properties & Industries Limited (APIL). He states that the part of the seizure memo (Document No. A D-20) containing signature of S. S. Gupta was torn/mutilated. He states that the said document was first exhibited by PW-

78. He states that the seizure memo was prepared in presence of PW-103 (S.S. Gupta) and by the time S. S. Gupta was produced in Court, the document had been mutilated and S. S. Gupta stated that he could not identify the signatures on the photocopy i.e. signatory evidence and turned hostile which resulted in delay of trial. He, therefore, states that when PW- 78 was examined, the document was mutilated before S. S. Gupta was brought into the witness box. He states that the seizure memo was extremely important because it also had documents pertaining to Register of Director of Green Park Theatres; Register of Members; Register of Contract under section 301 of the Companies Act; Register of Directors of shareholding and shareholders; Register of share transfer; Share capital ledger; Counter foil register; Original letter with respect to Mr. Pranav Ansal, Original resignation letter of Mr. Vijay Aggarwal and three pages of minutes of meeting of Directors of Ansal Theatres and Clubotels dated 02.06.1997. Mr. Krishnan states that these documents were necessary to show that the petitioners were in direct control of running of the Uphaar Cinema.

15. Mr. Krishnan has taken this Court through the defence taken by the Petitioners in the judgement of the Supreme Court in Sushil Ansal v. State through Central Bureau of Investigation, (2014) 6 SCC 173, to contend that the main defence of the Petitioners was that they were not the Directors of Ansal Theatres & Club Hotels Private Limited when the incident occurred and, therefore, they cannot be held liable for the fire. Mr. Krishnan has taken this Court through the document exhibited as PW-10/C being a letter dated 28.11.1996 from Ansal Properties & Industries Limited (APIL) to the Divisional Officer, Delhi Fire Services intimating the removal of the defects pointed out by the Delhi Fire Services vide their inspection report dated 18.11.1996. He states that the bottom lower portion of the said letter containing the address of Ansal Properties and Industries Limited (APIL) and signatures of H. S. Panwar has been torn off. He states that the said document was relevant to show that the Chairman of Ansal Properties Limited was Sushil Ansal and, therefore, this would have demonstrated that Sushil Ansal was involved in Ansal Theatres & Clubotels Private Limited which was running the Uphaar Cinema and that, as a corollary, Sushil Ansal, had direct control over the running of Uphaar Cinema. Mr. Krishnan contends that the photocopy of the said exhibit was ultimately proved by PW-49 as exhibit PW-49/B.

16. Mr. Krishnan thereafter has taken this Court to the seizure memo dated 27.08.1997 which was a seizure memo of a cheque for a sum of Rs.50 Lakhs which had been signed by Sushil Ansal as an authorized signatory for Green Park Theatre Associated Pvt. Ltd. in his own favour. He states that this cheque would have demolished the defence of the Petitioners that Sushil Ansal was not responsible for the functioning of Uphaar Cinema as Uphaar Cinema at that point of time was not under Green Park Theatre Associated Pvt. Ltd. and it had been taken over by Ansal Theatre & Clubotels Pvt. Ltd. He states that the defence of the Petitioners was that they lost control of Uphaar Cinema beyond 1988 and this cheque, which is dated 1995, would have shown that he was still in control of Uphaar Cinema.

17. Mr. Krishnan has also taken this Court through seizure memo dated 18.08.1997 by which two cheques dated 30.11.1996 and 12.02.1997 of Ansal Theatre & Clubotels Pvt. Ltd. had been seized containing the signatures of Gopal Ansal. He states that these cheques were also necessary to controvert the defence of the Petitioner that they were not involved in the conduct of Uphaar Cinema. He states that these cheques were issued by Ansal Theatre & Clubotels Pvt. Ltd. which was running the Uphaar Cinema and these cheques were signed by Gopal Ansal who was shown as the authorized signatory. He states that these cheques again magically reappeared after application for cancellation of bail was filed by the Association of Victims of Uphaar Tragedy (AVUT) and when Gopal Ansal wanted to travel abroad.

18. Mr. Krishnan has taken this Court through D-26 which is a seizure memo dated 27.08.1997 containing cheque dated 23.05.1996 which has been issued by Gopal Ansal for a sum of Rs.9,711/- to show that they were the Directors of Green Park Theatre Associated Pvt. Ltd. and after 1996 Uphaar Cinema was being run by Ansal Theatre & Clubotels Pvt. Ltd. of which the Petitioners were Directors inasmuch as this cheque would have demonstrated that Green Park Theatre Associated Pvt. Ltd. was still effectively running/managing Uphaar Cinema. These cheques, according to Mr. Krishnan, never saw the light of the day because this cheque would have made the Petitioners liable for perjury when they stated that after 1996 Uphaar Cinema was being run by Ansal Theatre & Clubotels Pvt. Ltd. of which the petitioner were Directors. He states that the photocopy of the cheque has to be exhibited through PW-93.

19. Mr. Krishnan has taken this Court through D-28 which deals with the file containing minutes of the MD‟s conferences of the Uphaar Grand. He states that it dealt with the MD‟s conference of various dates being meetings/conferences held on 07.05.1997, 02.04.1997 & 01.05.1997 which indicate that the conduct of the conference with respect to the management of Uphaar Grand held under the Chairmanship of Mr. Gopal Ansal as the Managing Director of Uphaar Grand. Mr. Krishnan states that selective documents being tampered with very strongly shows the likelihood of a conspiracy being hatched.

20. The learned Senior Counsel for the State has taken this Court through D-89 [which is the occurrence book register of control room Headquarters, DFS, dated 12.05.1997 containing pages 1 to 400 (pages 363-400 are missing including the relevant page 379)]; D-91 [which is the occurrence book register of Bhikaji Cama Place Fire Station from 13.12.1996 to 18.01.1997 (containing pages 1 to 400. Its pages No. 95 to 104 were missing and on pages 109 to 116 ink was spread)] and Document No. D-92 (which is the casual leave register maintained in Headquarters, Delhi Fire Service, for the period 1995-1996. Pages No.45 to 50 are missing. Relevant page, being page No. 50, which deals with casual leaves (CL) status of H.S. Panwar is also missing) to substantiate that H.S. Panwar who was working in Delhi Fire Services had given NOCs to Uphaar Cinema even when he was on leave. Emphasis is laid by Mr. Krishnan on the movement register of the Bhikaji Cama Place Fire Station which does not show that Panwar went out for any inspection to contend that these documents would have exonerated Panwar from giving false/bogus certificate of compliance of the requirements to the Uphaar Cinema.

21. Mr. Krishnan states that it cannot be said that the judgment of the Ld. Trial Court is based on null evidence or is completely unjustified. He states that there is a strong case against the Petitioners. He states that the Ld. Appellate Court has looked into all these factors while refusing to suspend the sentence of the Petitioners herein. He states that the facts demonstrate that the Petitioners have done acts which will amount to desecration of the temple of justice and that the persons who have been convicted for forgery, manipulation of court record, etc. cannot be released on bail. He states that a person who has been convicted for an offence of forgery, manipulation of Court records cannot be treated in a routine and casual manner. He further states that a High Court while exercising its jurisdiction under Section 482 Cr.P.C can interfere with the order of the Ld. Appellate Court only when the High Court comes to a conclusion that the Order of the Ld. Appellate Court, in refusing to suspend the sentence of the Petitioners herein, was perverse or that it shook the consciousness of the Court. He states that the High Court should not substitute its own conclusion to the one arrived at by the Ld. Appellate Court just because some other view is possible.

22. Mr. Vikas Pahwa, learned Senior Counsel appearing for the Complainant, places reliance on the judgment of the Supreme Court in Atul Tripathi v. State of U.P., (2014) 9 SCC 177, wherein the Apex Court has laid down parameters to be considered while dealing with an application for suspending the sentence of a convict and has held that while releasing an accused by suspending his sentence during the pendency of appeal, the Court must see the manner in which the crime is committed, gravity of the offence, age of the convict, criminal antecedents of the convict, impact on public confidence in the justice-delivery system, etc. He states that the Petitioners are accused of a very serious offence. He states that the Petitioners have tried to delay the proceedings at every stage and, therefore, they now cannot turn around and take advantage of their age. He further states that granting suspension of sentence to the Petitioners would have a major impact on public confidence inasmuch as the Petitioners have trampled with the sanctity of law and that the majesty of Court has been lowered by them. He has adopted the contentions of Mr. Krishnan on the relevance of the documents which were essential for the conviction of the Petitioners in the Main Uphaar case.

23. Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing for Gopal Ansal (Petitioner in CRL.M.C. 3277/2021), in rejoinder, contends that the Courts must adopt a holistic approach while considering an application for suspension of sentence under Section 389 Cr.P.C. He contends that just because the High Court is hearing a petition under Section 482 Cr.P.C against an order of the Ld. Appellate Court rejecting an application filed by the Petitioners under Section 389 Cr.P.C., the High Court must treat the petition as if it is hearing an application under Section 389 Cr.P.C for suspension of sentence. He states that there is no statutory standing of the power of High Court while exercising its power under Section 482 Cr.P.C nor there is any judicial circumspection on the power of the High Court to grant bail. He states that when it comes to Article 21 of the Constitution of India, there cannot be implied circumspection of the power of a High Court. He states that once bail is granted, the superior Courts must be very slow in interfering with the order granting bail, but if bail is not granted, the superior courts have a duty to re-evaluate the entirety of the matter and then only decide whether bail should be denied or not. Dr. Singhvi contends that when applications were filed for secondary evidence, it was the legal right of the Petitioners to do so for furthering a genuine defence. He contends that the trial was never stayed and the Petitioner cannot be accused of delaying the trial. He also contends that the finding of Main Uphaar case cannot be used in the present case and they have to be proved independently.

24. Dr. Singhvi draws the attention of this Court to paragraphs No.35, 36, 38 & 40 of the judgment of the Apex Court in Preet Pal Singh (supra) to state that the Ld. Appellate Court, while considering an application under Section 389 Cr.P.C has only to examine if there is such patent infirmity in the order of the Ld. Trial Court that renders the order of conviction prima facie erroneous. He states that a holistic approach must be made by the Courts while deciding an application under Section 389 Cr.P.C and not a technical approach. He states that in the Main Uphaar case, the Order framing charges was passed on 13.05.2014, while the third charge-sheet was filed on 12.02.2014. He, therefore, states that the trial could not have begun before the third charge-sheet was filed. He states that the trial concluded on 08.10.2021 and by any standards of trial, the trial in the Main Uphaar case has not been delayed. Dr. Singhvi states that the authors of the documents have not been examined to prove the document and the documents have, therefore, not been proved in accordance with law. He relies on Paragraphs No.49 & 50 of the judgment passed by the Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 and on Madholal Sindhu v. Asian Assurance Co. Ltd., AIR 1954 Bom 305.

25. Mr. Nigam, in rejoinder, submits that out of three documents which pertain to Sushil Ansal, one is D-24, in relation to which the order on charge records issuance of cheque as well as signatories of the cheque. He states that the Petitioner stands to gain nothing by causing disappearance of the document or tampering with the same. Regarding D-20, Mr. Nigam states that it was not as if this document had been found by the Inspector, but it was a document which had been produced by the Petitioner himself. He states that the bogey of the secondary evidence does not apply to the Petitioner and the Petitioner himself had been summoned to produce the document, and he had accordingly produced it. He further states that the documents, when they were produced, were intact.

26. Mr. Nigam relies on Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1, in order to raise the question regarding the proof of underlying documents in original form which was seized with the seizure memo. He submits that the underlying documents were not tampered with/mutilated or were missing. He further states that the destruction of evidence was only in 2005 which is seven years after the case had been instituted and on the basis of this, the allegation that the Petitioner was causing delay in trial was levelled against the Petitioner. Mr. Nigam states that the judgment of Supreme Court in Naveen Singh v. State of U.P., (2021) 6 SCC 191, is not applicable in the instant case as the facts in the aforementioned judgment are gross and Mr. Nigam relies on paragraph No.4 of the said judgment to indicate that the person in that judgment was absconding which is not the case in the present matter before this Court. He further relies on the judgment of the Supreme Court in Padam Singh v. State of U.P., (2000) 1 SCC 621 and Kamlesh Prabhudas Tanna v. State of Gujarat, (2013) 15 SCC

263. He relies on Krulewitch v. United States, 336 U.S. 440 (1949) to state that there are five broad principles regarding circumstantial evidence and each one needs to be definitively established in order to bring home the charge of conspiracy.

27. Mr. Nigam further relies on the judgment of Hanumant v. State of M.P., AIR 1952 SC 343, to contend that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be fully established and no room should be provided to the human mind to fill the gaps. Mr. Nigam concludes his arguments by stating that the Petitioner is 83 years of age and suffers from various comorbidities. He states that this is a complete bogey prosecution and it has been established that the Petitioner was neither the custodian of the documents nor has he ever inspected the Court files related to the Main Uphaar case.

28. Mr. N. Hariharan, learned Senior Counsel appearing for Gopal Ansal (Petitioner in CRL.M.C. 3277/2021) contends that this Court, while deciding a revision petition against an order on charge has not expanded the scope of charge. He has taken this Court through paragraphs No.34 and 117 of the judgment dated 12.05.2017 passed by this Court in CRL. REV. P. Nos. 262/2016, 263/2016, 264/2016 & 265/2016 to substantiate his contention. He contends that Section 10 of the IEA is a rule of evidence and Section 10 of the IEA comes into play only when there is a reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong. He states that there is no finding by the Ld. Trial Court that the Petitioners have entered into a conspiracy with any person. He, therefore, states that the second part of Section 10 of IEA being that anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed so to be conspiring, as well for the purpose of proving the existence of the conspiracy. To buttress his argument Mr. Hariharan places reliance on Natwarlal Sakarlal Mody v. The State of Bombay, 1961 SCC OnLine SC 1. He also places reliance on L.K. Advani v. Central Bureau of Investigation, 1997 SCC OnLine Del 382, and more particularly on paragraph No. 87 of the said judgment wherein this Court has held that the prosecution must prove the factum of evidence other than the disputed evidence i.e. the diaries and the loose sheets. Paragraph No.87 of decision in L.K. Advani (supra), on which reliance has been placed by Mr. Hariharan, reads as under:

29. Mr. Hariharan also places reliance on the judgments of the Supreme Court in State v. Nalini, (1999) 5 SCC 253 and, Paragraphs No.84 and 102 of State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600. Mr. Hariharan then contends that the Petitioner cannot be charged for an offence under Section 409 IPC read with Section 120B IPC or with Section 201 IPC read with Section 120B IPC without substantiating any evidence of a conspiracy for the offences punishable under Sections 409 IPC or 201 IPC. He states that since the Petitioner was not entrusted with any documents, an offence under Section 401 IPC is not made out against the Petitioner and the same analogy is applicable to the offence punishable under Section 201 IPC for the reason that there is nothing on record to show that the Petitioner conspired with Dinesh Chandra Sharma, the Court Ahlmad.

30. Mr. Hariharan further relies on Paragraph No.153 of the judgment of the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, to contend that in case of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established. He states that a reading of the Ld. Trial Court judgment showcases that it is only based on probabilities without there being a definitive finding.

31. Mr. Pramod K. Dubey, learned Senior Counsel appearing for Gopal Ansal (Petitioner in CRL.M.C. 3277/2021), in rejoinder contends that Gopal Ansal never objected to leading of secondary evidence. He states that there were 226 adjournments in the case out of which Gopal Ansal sought adjournments only on 50 occasions and Sushil Ansal sought adjournments only on 12 occasions. He states that delay, if any, in the trial, could be of only 17 days and the application for leading secondary evidence was also allowed.

REASONING OF THIS COURT:

32. Heard Mr. Arvind Nigam, learned Senior Counsel appearing for Sushil Ansal, Dr. Abhishek Manu Singhvi, Mr. N. Hariharan, and Mr. Pramod K. Dubey, learned Senior Counsel appearing for Gopal Ansal, Mr. Dayan Krishnan, learned SPP for the State and Mr. Vikas Pahwa, learned Senior Counsel appearing for the Complainant, i.e. Association of Victims of Uphaar Tragedy (AVUT), and perused the material on record.

33. The learned Counsels have taken this Court through the facts of the case, evidence on record, the scope of Section 482 Cr.P.C. while deciding a challenge to an Order refusing to grant suspension of sentence, and also detailed arguments have been addressed on merits of the case.

34. A perusal of the material on record indicates that on 13.06.1997, a fire occurred at Uphaar Cinema which resulted in the death of 59 people due to asphyxia and caused injuries to more than 100 people. The investigation had been initially conducted by Delhi Police, but later on it was transferred to the CBI which registered a case, being case No. RC-3 (S)/97/SIC.IV/New Delhi. After investigation, charge-sheet was filed on 15.11.1997 against 16 persons, including the Petitioners herein. When charges were framed all the documents were intact. Accused Dinesh Chandra Sharma took charge as the Court Ahlmad of the Court which was dealing with the trial on 30.04.2001. During the examination of PW-33 (Mr. T. S. Sharma - ADO, Delhi Fire Service), a letter dated 28.11.1996 was found half-torn from the judicial file. On scrutiny, it was found that certain documents were torn, stained with ink and/or were missing. CBI moved an application apprising the Ld. Trial Court about the tampering. CBI also sought permission from the Ld. Trial Court to lead secondary evidence with respect to the missing/tampered documents, which was subsequently allowed. An application under Section 439(2) Cr.P.C was filed for cancellation of the bail that had been granted to the Petitioners herein alleging that the Petitioners herein were responsible for the said tampering.

35. The material on record further reveals that an inquiry was conducted against the accused Dinesh Chandra Sharma who was the Court Ahlmad and, after the said inquiry, it was held that the Ahlmad was responsible for tampering of certain documents, disappearance of certain documents and for spreading ink on certain documents. An application was filed by AVUT before this Court, being CRL.M.No.2229/2006, seeking registration of a criminal case against the offenders for tampering with the documents. Vide Order dated 05.05.2006, this Court directed the Delhi Police to register a case against the accused with regard to the incident of tampering with the evidence. Resultantly, FIR No.207/2006 dated 17.05.2006 was registered at Police Station Tilak Marg for offences under Sections 109/193/201/218/409/120B IPC. Consequently, Dinesh Chandra Sharma was arrested and sent to police custody. First charge-sheet was filed on 12.02.2007. Supplementary charge-sheet was filed on 17.01.2008 against the Petitioners herein, H. S. Panwar, P.P. Batra, Anoop Singh Karayat and Col.

D. V. Malhotra. Summons were issued. Third supplementary charge-sheet was filed on 12.02.2014. Charges were framed on 31.05.2014 against all the seven accused persons and, after conclusion of the trial, the accused were convicted vide Order dated 08.10.2021 for offences under Section 120B IPC and Section 409 IPC read with Section 120B and Section 201 IPC read with Section 120B IPC. The Petitioners filed appeals, being Criminal Appeals No. 89/2021 & 90/2021, against the Order on charge and Order on sentence, along with applications under Section 389(2) Cr.P.C for suspension of sentence during the pendency of Appeal and the same was rejected vide Order dated 03.12.2021. The said Order is under challenge before this Court.

36. The charges framed against the accused is that from the date of filing of the charge-sheet in Case No. RC-3 (S)/97/SIC.IV/New Delhi, for offences under Sections 304/304A IPC till 13.01.2003 when the facts of the missing documents came to the knowledge of the Ld. Trial Court, the accused had already entered into criminal conspiracy for committing various offences like criminal breach of trust by a public servant, by causing the disappearance/destruction/obliterating/tampering as well as spreading ink over the documents which were vital for the trial in the case arising out of Case No. RC-3 (S)/97/SIC.IV/New Delhi, to give advantage to the Petitioners herein and H.S. Panwar during the trial of the case. Charges were framed under Section 120B IPC and Section 409 IPC read with Section 120B and Section 201 IPC read with Section 120B IPC.

37. The Petitioners herein were Directors of Ansal Theatres & Clubotels Private Limited which was running Uphaar Cinema. It was the contention of the Petitioners during the proceedings in the tampering of the evidence matter that they retired from the Board of Directors by October 1988 and, that Ansal Theatres & Clubotels Private Limited was not running Uphaar Cinema since that day. Per contra, the allegation of the prosecution was that the Petitioners herein continued to have full control over Uphaar Cinema and they were occupiers of the building and were wilfully negligent in their running of the cinema, and therefore, were liable to face the consequences of the disaster that had reaped as a result of their negligence. The allegation in the present case, therefore, is that the documents which would have indicated that the Petitioners were in full control of the running of Uphaar Cinema have been mutilated/torn/tampered with to give advantage to the Petitioners herein.

38. There are three basic issues which arise before this Court in the instant matter when deliberating as to whether the Ld. Appellate Court has correctly arrived at the conclusion to refuse to suspend the sentence of the Petitioners herein during pendency of their Appeals.

A. EXISTENCE OF CONSPIRACY

39. What constitutes conspiracy and what can be the extent of conspiracy has been succinctly decided by the Ld. Trial Court while convicting the Petitioners herein and the Ld. Appellate Court while deciding the application under Section 389 Cr.P.C. Material on record indicates that the accused P.P. Batra, who was a stenographer at Ansal Properties and Infrastructure Ltd. (APIL) as well as the pairvi for the Petitioners herein, was in regular touch with Dinesh Chandra Sharma, the Court Ahlmad, after he took charge as the Court Ahlmad till the time when it was discovered that the documents had been tampered with. The Ld. Trial Court in its judgment has provided the details of the phone calls between Dinesh Chandra Sharma as well as the landline numbers of APIL wherein the Petitioners were the Directors. The number of phone calls between Dinesh Chandra Sharma and P.P. Batra have also been enumerated in the judgment of the Ld. Trial Court. It is not the case of the Petitioners that P.P. Batra was known to Dinesh Chandra Sharma before he took over as Court Ahlmad in the Court wherein the trial of the Petitioners herein was going on. It can, therefore, be reasonable interpreted that accused P. P. Batra was acting only at the behest of the Petitioners herein to ensure that certain documents which will have the effect of bringing home the case against the Petitioners are tampered with or destroyed.

40. It is well settled that conspiracy is a distinct offence and all conspirators are liable for the acts of each other for the crime or crimes which have been committed as a result of the conspiracy. Section 10 IEA is based on the theory of agency. The principle of agency as a rule of liability and not merely a rule of evidence has been accepted by the Privy Council and the Supreme Court [See Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1]. It is equally well settled that the offence of criminal conspiracy consists of a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means and the performance of an act in tune thereof [State of H.P. v. Krishan Lal Pardhan, (1987) 2 SCC 17].

41. The Supreme Court in State v. Nalini, (1999) 5 SCC 253, has observed as under:

44. Courts of justice have, in accordance with their constitution, to perform multifarious functions for due administration of Justice. Any lapse from the strict standards of rectitude in performing these functions is bound to affect administration of justice which is a term of wider import than mere adjudication of causes from the seat of justice."

58. In the present case, the Petitioners have been found guilty of tampering with evidence that was in the custody of the Court itself. This tampering, if had not been brought to the notice of the Court, would have had the effect of interfering with the administration of justice. Therefore, contention that the Petitioners herein were on bail during trial is of no consequence as the matter pertains to the serious offence of tampering with evidence. In any event, it has resulted in delay of trial inasmuch as secondary evidence had to be led. In the present case also, charges were framed on 31.05.2014 and it has taken many years to conclude the trial. This Court is of the opinion that suspending the sentence of the Petitioners would, therefore, amount to eroding the faith of the public in the judicial system as it would entail allowing convicts, whose finding of guilt has already been established, to take advantage of the passage of time as well as the judiciary as an institution.

59. In the facts of the present case and especially keeping in mind the nature of offence, it cannot be said that the Order of the Ld. Appellate Court, in not suspending the sentence of the Petitioners herein during the pendency of the Appeal, is perverse or requires to be interfered with. The Order of the Ld. Appellate Court is well-considered and comprehensive, and does not suffer from any patent infirmity. This Court has, in order to satisfy itself, once again looked into the material on record and this Court does not deem it necessary to interfere with the Order of the Ld. Appellate Court refusing to suspend the sentence of the Petitioners herein during the pendency of the Appeal.

60. It is to be noted that since the matter relates to tampering of the judicial record, the same has to be decided as expeditiously as possible in order to ensure that the faith of the public in the judicial system is not eroded. This Court is of the view that cases of this nature should be heard and decided at the earliest as any delay in dealing with the same will only make people lose faith in the cherished institution, that is the judiciary. The Petitioners herein inhabit the stigma of desecrating the temple of justice and a quietus needs to be put to the same. If they are ultimately found to be innocent in the instant case, this stigma has to be removed at the earliest. Considering this fact, the Ld. Appellate Court is requested to expedite and complete the hearing of the appeals filed by the Petitioners herein within a period of one month from the date of this Order and, if necessary, conduct day-to-day hearings for the same, and to expeditiously pronounce the judgement after concluding the hearing of the appeals filed by the Petitioners herein.

61. With the aforementioned observations, the petitions are dismissed, along with pending application(s), if any.

SUBRAMONIUM PRASAD, J FEBRUARY 16, 2022 Rahul