Gaurav Kaushik v. State of NCT of Delhi

1. It is submitted by the Ld. APP for the state that as per the previous order of this Court, the Ld. District & Sessions Judge, North District, Rohini Court has filed the report on the applications moved by Dr. Rajesh Verma (PW 2) and his wife i.e. prosecutrix for providing protection. 2021:DHC:762

2. It is submitted by the Ld. Counsel for the petitioner in the bail application that the prosecutrix and her husband are not appearing before the Trial Court for recording of their evidence and are delaying the same on one pretext or the other. It is further submitted by the Ld. counsel for the petitioner that due to non appearance of the witnesses, the case is being unnecessarily delayed.

3. On the other hand, it is submitted by the Ld. counsel for the complainant that his application U/s 311 Cr.P.C is pending disposal before the Trial Court. He further submitted that the prosecutrix and her husband are facing threats and for that reason they are not appearing before the Court.

4. The victim moved Crl. M.C. 5916/2019 impugning the order dated 13.09.2019 whereby the victim and her husband were summoned for recording of their evidence on 21.11.2019. The aforesaid order dated 13.09.2019 was also assailed on the ground that the applications filed by the victim seeking protection under the Witness Protection Programme and for retesting of the exhibits was pending consideration before the Trial Court.

5. In the instant case, the victim was examined in chief for the first time on 30.01.2019 and since then her evidence is pending and cross examination of Rajesh Verma (PW-2) is pending since 19.09.2019. On 08.07.2019, two petitions were heard by the Co-ordinate Bench of this Court. The first being Crl.M.C. 1665/2019 filed by the victim against the order dated 07.03.2019 passed by the Trial Court whereby the victim’s request for re-examination / re-testing of the exhibits was declined and while disposing of the aforesaid Crl. Miscellaneous petitions, it was directed as under:- “In view of the aforesaid, impugned order is set aside with direction to the trial court to ensure that evidence of FSL expert is recorded at the first instance and thereafter only, evidence of prosecutrix be recorded. Thereafter, appropriate orders on the petitioner’s instant application be passed in the light of evidence of the FSL expert.”

6. On the same date i.e. on 08.07.2019, the bail application bearing B.A. No. 1555/2018, also came up for consideration before the aforesaid Bench and in the presence of the Ld. Counsel for the victim/prosecutrix the following order was passed: “The orders on this application are deferred for today as counsel for complainant/prosecutrix undertakes that prosecutrix would appear before the trial court for recording of her evidence on 3rd August, 2019.”

7. On 03.08.2019, in terms of the undertaking given on behalf of the victim, neither the prosecutrix nor her husband appeared on 13.09.2019 for recording of their evidence in spite of the fact that in compliance of the aforesaid order dated 08.07.2019 passed by this Court the FSL expert was examined and discharged. The victim and her husband were then summoned by the Ld. Trial Court for recording their evidence for 21.11.2019.

8. On 21.11.2019, before this Court, the counsel for the victim undertook that the victim and her husband would appear before the Trial Court on 25.11.2019 for recording their evidence. Since the victim has shown threat apprehensions and the fact that victim was earlier partly examined on 30.01.2019, so the Ld. Trial Court was asked to make an endeavour to examine the victim on 25.11.2019 and dispose of her applications seeking protection as well as re-testing at the earliest and the matter was listed for 29.11.2019.

9. On 29.11.2019, the counsel for the victim submitted that on account of the illness of mother-in-law of the victim the examination in chief of the victim has been deferred to 02.12.2019. The Ld. APP for the state drew the attention of this Court to the orders passed by the Trial Court on 25.11.2019 wherein it has been stated that despite efforts made by the investigating officer and information given on the telephone, the victim did not appear before the Trial Court for her deposition. An application for exemption was moved on account of illness of the mother-in-law of the victim and it was undertaken that they would appear within 7/10 days. The Trial Court thereafter fixed the next date for evidence of the victim and her husband on 02.12.2019.

10. This matter came up before the Court on 14.01.2020 and the counsel for the victim in bail application No. 1555/2018 and for the petitioner in Crl. M.C. 5916/2019 submitted that both the victim and her husband have filed the requisite proformas seeking protection under the victim protection scheme before the competent authority i.e. District & Sessions Judge, Delhi.

11. On 16.01.2020, the counsel for the victim/complainant in bail application No. 1555/2018 and for the petitioner in Crl.M.C. 5916/2019 submitted that the requisite applications by the victim and her husband under the Witness Protection Scheme were filed on 02.01.2020 in the office of Chief Prosecutor, Prosecution Branch. Ld. Standing counsel for the state on instructions submitted that only the application of the husband of the prosecutrix was received by the competent authority which was not in the specific format as required. he further submitted that copy of the aforesaid applications be provided to him by the counsel for the victim in sealed cover so that the same could be forwarded to the competent authority under the Witness Protection Programme 2018 i.e. the District & Sessions Judge, Rohini Court as well as to the other members of the said authority. The matter was listed on 17.02.2020. On 17.02.2020, it was informed to this Court by the Ld. APP that the applications of the petitioner as well as her husband with respect to Witness Protection Programme are pending before the concerned District Judge.

12. On 01.02.2021, the bail application Number 1555/2018 came up for hearing and it was informed by the counsel for the petitioner/accused that the next date of hearing before the Trial Court was 06.02.2021. The counsel for the victim/complainant submitted that their applications for providing protection to the victim and her husband are pending before the Ld. District & Sessions Judge, Rohini Court and no directions have been passed. Therefore, since the complainant and her husband have raised protection concerns, The Ld. District & Sessions Judge, North, Rohini was directed to decide the applications without any further postponement.

13. A report dated 19.02.2021 in respect of applications moved by Dr. Rajesh Verma (PW-2) husband of the victim and victim/complainant has been received. The relevant portion of the report reads as follows: "Finally, a Threat Analysis Report was received on 16th February 2021 from Superintendent of Police-III/Nodal Officer, Ghaziabad Police, Uttar Pradesh on pre-scheduled day of meeting i.e 16.02.2021 and keeping in view of the directions as contained in Witness Protection Scheme, 2018 and after due deliberations with all the Members of the Committee as well as with the applicant, it was unanimously ordered by the Committee that: “The Committee had deliberated with all the members as well as with applicant over all the aspects. As per directions passed by this Committee, a Threat Analysis Report has been received today from Superintendent of Police-III/Nodal Officer, Ghaziabad Police vide which it has been recommended/suggested that police protection to the applicant as well as to his wife may be provided. After perusal of the Threat Analysis Report, it is stated by Ld. Member Secretary that it will be appropriate to implement the recommendations/suggestions given by Gaziabad Police, UP. The Committee unanimously ordered that:-

1. Superintendent of Police, Gaziabad, Uttar Pradesh shall direct concerned DSP/SHO/Chowki Incharge to provide close protection to the applicant and also provide their contact nos. to the applicant so that they can be contacted in case of emergency.

2. Superintendent of Police, Gaziabad, Uttar Pradesh is also directed to install security devices around the house of witness such as security doors, CCTV, alarms, fencing etc., whenever required.