RC No. 23 (S) 2005 /SC.1/CBI

04.12.2015

ORDER ON PROTEST PETITION FILED BY MS. LAKHVINDER KAUR

1.It was the assassination of Smt. Indira Gandhi, Prime Minister of this country, by

her two Sikh security guards, that led to violent attacks on innocent Sikhs and their

properties in various parts of the country including its capital. On 01.11.1984 an

incident of rioting took place near the area of Pul Bangash in which three persons

were burnt alive by the mob. The said incident is the subject matter of the present

case in which husband of victim Lakhwinder Kaur (hereinafter referred to as

complainant) was killed. Thirty one accused were charge-sheeted initially by the

police and were acquitted after the trial. Later on, however, on the

recommendation of Nanawati Commission, the Central Govt. directed the CBI to

investigate the case against Jagdish Titler and so the present case was registered

vide case RC No. 23 (S) 2005 /SC.1/CBI on 22.11.2005.

2.CBI conducted investigation and filed charge sheet against one person Suresh

Kumar @ Panewala and stated that no reliable evidence was available regarding

involvement of Sh. Jagdish Tytler.

3.CBI was directed to reinvestigate vide order dt. 18.12.07. After investigation

closure report qua Sh. Jagdish Titler was filed and the closure report was

accepted by the Ld ACMM vide its order dt. 27.04.10.

4.The complainant challenged this order by way of revision petition and Ld.

Session Court vide order dated 10.04.2013 set aside order dated 27 April 2010

passed by Ld. ACMM East and directed CBI to conduct further investigation. The

relevant portion of the order is as under:

“CBI is directed to conduct further investigation in the light of aforesaid facts and

to record the statements of witnesses, who it had come to know during the

investigation itself, are claiming/shown/named to be the eye witnesses of the

incident.”

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5.In view of the said directions passed by the Ld Session Court, CBI conducted

further investigation and filed charge-sheet number 14 on 24 December 2014.

6.In the said charge sheet CBI submitted that no evidence emerged during

investigation for the prosecution of Jagdish Tytler, for the following reasons:

6.1.That witnesses Alam Singh, Chanchal Singh, Santokh Singh and Resham

Singh, whose names cropped up in the protest petition filed by complainant, were

not traceable.

6.2.That Lakhwinder Kaur/complainant is not an eye witness to the incident and

as such her testimony regarding what she was told about the incident by the eye

witnesses, is hearsay evidence and cannot be safely relied upon.

6.3.That Sh. Sudip Mazumdar, Journalist and Sh. S.C Tandon, Commissioner of

Police1, admitted that on 6 November 1984, while Sh. S.C Tandon was holding a

press conference, Jagdish Tytler suddenly entered the said conference and

disrupted it, but that by itself does not connect Jagdish Tytler with the incident.

6.4.That three witnesses namely Sh. Rajinder Kumar Dhawan, Sh. Gautam Kaul

and Sh. Amitabh Bachchan, who on the date of incident were present at Teen

Murti House, were examined but from their examination the exact time of the

presence or absence of Jagdish Tytler at Teen Murti house could not be

ascertained.

6.5.That Sh. Sattu Singh was also examined and as per his testimony, he was not

present at the spot when the incident took place, rather, it was his son Jasbir

Singh, who had seen anti Sikh riots and that he had asked his son to keep quiet in

view of the killing of his younger brother Sheetal Singh during riots.

6.6.That on the request of Abhishek Verma, he was examined and he stated that

sometime in the year 2004-05 Jagdish Tytler had requested him to send Narinder

Singh S/o Surinder Singh Granthi to Canada and that he arranged to send

Narinder Singh to Canada with the help of company namely Atlas Systems Ltd,

Montreal, Canada and that all the expenses for sending him were borne by

Jagdish Tytler. He also stated that Jagdish Tytler had struck a deal with Surinder

1 In 1984.

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Singh, for changing his statement so that he could get a clean chit in this case,

worth rupees one crore besides paying $ 50,000 to his son Narinder Singh and

that he had also helped Jagdish Tytler in defreezing an amount of rupees five

crores at Canada through his friend Late Deepak Rampal of Dubai and that a part

of this money was to be paid to Narinder Singh as per the agreement. The

statement of this witness was discarded on the ground that the facts narrated by

the witness could not be verified because Surinder Singh had expired and

Narinder Singh was not traceable.

7.Protest petition was filed on behalf of complainant Lakhwinder Kaur, along with

which phone number of Narinder Singh was filed in sealed cover.

8.In the protest petition it is submitted that sufficient efforts were not made by CBI

to trace and examine the witnesses to the incident and that CBI without verifying

the facts disclosed by witness Abhishek Verma, discarded his statement.

9.Reply to the protest petition was filed by CBI, in which CBI submitted that there

were no grounds for further investigation.

10.Arguments were heard on the protest petition and it was listed for orders on 17

November 2015. However, on 10 November 2015 an application was filed by

complainant Lakhvinder Kaur for deferring the matter for enabling the complainant

to furnish reliable and additional information as regards the witnesses mentioned

in closure report filed on 24 December 2014.

11.Reply to the said application was filed by CBI on 16 November 2015, in which

CBI submitted that it has no objection if time is granted to the complainant to

obtain information regarding the whereabouts of the material witnesses and that

CBI is also willing to examine the witnesses mentioned in the charge-sheet filed

on 24 December 2014.

12.Today complainant filed the name and address of two new witnesses, who as

per the complainant wintessed the incident under investigation. In order dated

10.04.2013, Ld. Session Court directed CBI to examine witnesses claiming /

shown / named to be the eye witnesses of the incident. As such the two

witnesses named today fall in the first category i.e. witnesses who claim to be the

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eye witnesses. It whould be only after their examination that CBI would be able to

come to a conclusion that whether they witnessed the incident or not. Moreover,

as per the reply filed by CBI on 16.11.2015, the CBI is also willing to examine eye

witnesses. Further, phone number of Narinder Singh S/o Surender Singh Granthi

is also on court record, as it was filed with protest petition , and the same can be

collected by CBI from the court or complainant to examine the said witness.

Thus, admittedly further investigation is required in the present case to examine

more eye wintesses of the incident, subject to their availability and investigation is

also required to find out whether the said witnesses were actually present at the

time of incident.

13.However, besides the examination of those witnesses who have been

mentioned in the charge sheet filed on 24 December 2014 and who as per CBI

were not examined as they were not traceable, there is one other aspect in the

present case which needs thorough investigation.

14.The statement made by witness Abhishek Verma discloses an active role

played by Jagdish Tytler in sending one Narinder Singh to Canada. The said

Narinder Singh is none other than the son of Surinder Singh Granthi, a key

witness in the present case against Jagdish Tytler. It cannot be shear coincidence

that Jagdish Tytler extended a helping hand to Narinder Singh in 2004-05.

If the facts disclosed by Abhishek Verma are true, then an inference may be

drawn by the court against Jagdih Tytler in the present case.

Thus, it becomes necessary to find out whether the facts disclosed by Abhishek

Verma are true or not.

15.Sh. H.S Phulka, Ld Senior Counsel for the complainant, in his argument

submitted that the facts disclosed by witness Abhishek Verma, clearly make out an

offence punishable under section 193 and 195A of Indian Penal Code and also

under the Money Laundering Act, thus CBI be directed to register a separate FIR

in this regard and undertake investigation.

16.The said argument was rebutted by Ld PP for the CBI on the ground that this

court being the court of Additional Chief Metropolitan Magistrate cannot direct CBI

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to register FIR. It was also argued that offence under section 193 and 195A of the

Indian Penal Code are not attracted even as per the statement of Abhishek

Verma.

17.As far as offence under section 195A of IPC is concerned the same may not

be attracted in the facts of the present case. But, if the facts disclosed by Abhishek

Verma are found to be true, then offence punishable under section 193 and 201

IPC or abetment thereof besides criminal conspiracy2 may become applicable in

the facts of the present case. However, what offences are made out, would be

depend upon the result of investigation.

18.As regards argument of Ld. Senior Counsel Sh. H.S. Phoolka, that separate

FIR be registered under the said section by CBI, the court is of the opinion that the

said offences are part of the same incident and need to be investigated in same

FIR. Thus, CBI can and should investigate the said allegation of inducement to

witness Surinder Singh Granthi in this very case and no separate FIR is required

to be registered or ordered to registered in this regard.

19.In simple words, for example, if A has committed murder of B in presence of C

(sole eye witness) and in case A induces C to give false statement to police so as

to save himself and as a result of the same closure is filed by police, then the

police is required to investigate such inducement by A to C in the same case/FIR

and for that purpose no separate FIR is required to be registered. Even if during

such investigation C expires, the investigation in such inducement by A shall

continue, even if after death of C no evidence is left for proving that A committed

murder.

20.In this regard while dealing with section 201 IPC, it was held by Rajasthan

High Court in Kajju Lal Vs. State of Rajasthan 2006 Cri L.J. 4386 (Rajasthan)

that even if the prosecution fails to prove the principal offence against the main

accused, conviction under s.201 can still be independently recorded. In my

opinion the said ratio is applicable to other similar offences of IPC. It was so held

by Constitutional Bench Apex Court in 1953 in case titled Kalawati & Ranjit

2 U/s 120A and B IPC.

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Singh Vs. State of Himachal Pradesh 1953 Cr. L J 668.

21.Therefore in the opinion of the court thorough investigation is required to find

out whether statement given by Abhsihek Verma is true or not and investigation is

required to be conducted by CBI: -

21.1.To find out whether in the year 1988 Abhishek Verma was editor of

magazine 'India Worldwide'.

21.2.To find out whether in the year 1988 Abhishek Verma obtained a contract of

Rs.50 Lakhs from Air India, when Jagdish Tytler was Civil Aviation Minister.

21.3.To find out whether Abhishek Verma was major share holder in Atlas

Interactive India Pvt Ltd and what was his role/status in the said company during

the relevant period.

21.4.To find out whether Atlas Systems Ltd, Montreal, Canada was a subsidiary

of Atlas Telecom Ltd.

21.5.To find out as to how many times Narinder Singh S/o Surinder Singh Granthi

applied for Canadian Visa and to collect the copies of all the relevant documents

in this regard.

21.6.To find out as to what assistance was provided by Atlas Systems Ltd,

Montreal, Canada to Narinder Singh for obtaining a Canadian Visa.

21.7.To find that as to when and on what grounds Canadian Visa was given to

Narinder Singh. To collect relevant documents in this regard.

21.8.To find out whether Narinder Singh ever committed any visa violations in

Canada. If yes, to obtain documents in this regard from Canadian Government.

21.9.To record statement of ASI Krishan of Delhi Police, who as per Abhishek

Verma was present in the car when Jagdish Tytler told Abhishek Verma that a deal

was struck by him with Surinder Singh Granthi, father of Narinder Singh as per

which hefty amount was paid to Surinder Singh Granthi besides settling his son

Narinder Singh.

21.10.To record statement of Narinder Singh (whose phone number has been

filed by complainant in the court in sealed cover) to find out the role, if any, played

by Jagdish Tytler and Abhishek Verma in helping him in obtaining Canadian Visa.

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21.11.To conduct lie detection test upon witness Abhishek Verma, if required.

22.All these points mentioned by the court are just to enable CBI to find out the

truth i.e. whether Abhishek Verma has give a true statement or whether he has

given false statement because of some ulterior motives. The CBI is free to

investigate the matter by whatever mode and procedure suitable in the facts of the

case and the aforesaid points are only indicative of the kind of investigation that

can be undertaken by CBI to find out the truth.

23.The said points are not mentioned to direct the investigating agency to

investigate the matter in a particular manner. The purpose of investigation is to

unearth true facts and CBI may do all that is required to achieve that goal.

24.However, as closure report in this case has been filed several time, hence in

view of judgement titled Sakiri Vasu Vs. State of Uttar Pradesh in Appeal of

Criminal 1687 of 2007 dated 7.12.2007 the court of the opinion that it would be in

the interest of justice if the investigation is monitored by the court on bi-monthly

basis (i.e. every two months) so that no aspect of the case is left uninvestigated.

25.With these direction, CBI is directed to conducted further investigation in the

present case.

26.Be listed for further proceedings on 02.02.2016.

(SAURABH PARTAP SINGH LALER)ACMM (EAST)/KKD

04.12.2015

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