High Court of Punjab and HaryanaCRM-M/18847/2019disposed of

Central Bureau Of Investigation v. Gurmeet Ram Rahim And Another

2024-12-20Mr. Justice Kuldeep Tiwari24 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 21.11.2024

Pronounced on: December 20, 2024 CENTRAL BUREAU OF INVESTIGATION -PETITIONER V/S GURMEET RAM RAHIM AND ANOTHER -RESPONDENTS

CORAM:

HON'BLE MR. JUSTICE KULDEEP TIWARI

Present:

Mr. Ravi Kamal Gupta, Advocate for the petitioner.

Mr. Archit Rana, Advocate for Mr. Aman Arora, Advocate for the respondent No.2.

Mr. S.P. Arora, Advocate with Mr. Deepak Sharma, Advocate for the respondent No.3.

*** KULDEEP TIWARI, J. (ORAL) 1.

The instant petition cast under Section 482 of the Cr.P.C. aims at acquiring an affirmative order from this Court for setting aside the order dated 16.02.2019 (Annexure P-1), wherethrough, the learned Special Judicial Magistrate, CBI Haryana at Panchkula, has allowed the applications dated 25.01.2019 and 31.01.2019, as preferred respectively by the respondents No.1 and 2, under Section 91 of the Cr.P.C. 2.

The author of the impugned order (Annexure P-1) has directed the petitioner (hereinafter referred to as the 'C.B.I.') to place on the judicial record and to supply to the defence counsel for respondent No.1: (i) the statements of the persons/witnesses mentioned in paragraphs No.7 and 12;

(ii) the two documents mentioned in paragraph No.14 of the application dated 25.01.2019. Moreover, the C.B.I. has also been directed to place on the judicial record and to supply to the defence counsel for respondent No.2: (i) the statements of the persons/witnesses mentioned in paragraph No.5; (ii) the three documents mentioned in paragraph No.7 of the application dated 31.01.2019.

The present case has a chequered history, therefore, in order to give quietus to the controversy at hand once for all, it is deemed imperative to dive deep into the factual matrix of the case. FACTUAL MATRIX 4.

The respondents have been facing trial in FIR No. RC1(S)/2015/SCU.V/SC.II/CBI/New Delhi, dated 07.01.2015, under Sections 120-B, 326, 417 and 506 of the IPC, registered at P.S. CBI, SCII/New Delhi. The genesis of the present FIR is embodied in the order dated 23.12.2014, as passed by this Court upon CWP-13395-2012. 5.

The petitioner, in the writ petition (supra), levelled allegations of causing grievous injury(ies) of castration to him and 400 other males at the Dera Sacha Sauda headed by Sant Gurmeet Ram Rahim (respondent No.1 herein). To be precise, the allegations against the respondent No.1 are that, he induced the petitioner and several others with the hope that such emasculation would lead to realisation of God. In this way, under the influence of the respondent No.1, the petitioner underwent the surgery of castration, however, upon his weaning out from the influence of the respondent No.1 and objectively seeing the harm caused to himself, he approached this Court by filing the writ petition (supra), thereby praying for

making an enquiry to C.B.I.

Resultantly, taking into consideration: (i) the medical report, which was conducted on the directions of this Court; (ii) the serious allegations of mass castration, victims whereof were allegedly muted by fear; (iii) the allegations (supra) being voiced against a highly acclaimed person and the clout that he enjoyed; this Court, speaking through K. Kannan, J., drew the order dated 23.12.2014 and directed the C.B.I. to register the case and to take over the investigation. The relevant portion of the order dated 23.12.2014 is reproduced hereunder:- "15. This court had not found anyone guilty. That is just not the scope of the writ petition. However, I have materials before me that the complaint is serious. It is at the instance of a person who has suffered a privation of an organ.

The abnegation of his own sexual identity has cast a serious psychological scar to the person. He narrates his own misery not to be confined to him but to several other persons, who are muted by fear that if they raise their voice, they will be done away with. There had been such a fear expressed in this court and the court has provided police protection. A large number of persons, who are said to have been affected, are spread over several States. The victims are from Punjab, Haryana and Rajasthan. It is not known whether the persons belonged to other States are also involved. The imperatives for tightening the rigour of investigation is unexceptional. The State police has done no credit to itself by allowing grass to grow under its feet and nibbling at the periphery and conducting investigation which is worthless.

I am not surprised at the petitioner's apprehension that they feel overwhelmed by the large following that the 5th respondent has within or without the State. In a democracy, numbers mean everything. The clout that a person enjoys with patronage lying outside the spiritual circles can make even a powerful police force go limp and effete. The Court processes have already suffered in its attempt to prosecute the 5th respondent in three other cases.

conclusion of the trial. Not in one single instance could the accused be brought before court. On the other hand, we had reports of the State police complaining of law and order situation if the accused were to be brought to court; there were incidents of persons claiming to be disciples who shot themselves in court complex or died in pitiful state under the gaze of public, after slogan raising that they cannot bear the agony of their master being taken to court. Acts of breast beating and public wailing are occurrences, we have seen aplenty in the near past when public bigwigs were incarcerated. Leaders for whom persons are prepared to die are persons who are cringing for attention that it is in the show of their loyalty that salvation lies.

It is a leader who must show the correct way to his own disciples and interrogation, if it may become essential of the 5th respondent, he cannot leave a trail of destruction and public display of anger by misguided persons. I have fortunately in this case the 5th respondent supported through a responsible senior counsel who assures the court that he will give full cooperation to the investigation. If I may add the cooperation would include even an exhortation to the disciples of the spiritual guru that they shall maintain calm and no harm is made while carrying out investigation. The disciples must know that the allegations made are serious and the investigation to be therefore serious. They cannot be derailed by threats or activities which can vitiate the atmosphere.

The course of action could have been merely to direct the State police to register a complaint and carry own with the investigation. In this case, however, the materials brought out show that the victims spread over several States. The person against whom allegations are made is a highly acclaimed person and at least a person who has a large public following. The past experience has been that his presence in court is seen as a torture to the disciples who have killed themselves. If the matter transcends the State boundaries and the imputation is serious, then it would be only appropriate that the matter is entrusted to CBI to register a complaint and carry out the investigation in the light of the observations made above......" 7.

After registration of the present FIR and conducting

investigation regarding the incident of castration of devotees in Dera Sacha Sauda, the C.B.I. concluded that Dr. Pankaj Garg (respondent No.2 herein) is one of the doctors, who conducted castration surgery on devotees at the behest of the respondent No.1. On completion of investigation, charge sheet was filed on 01.02.2018 before the learned Special Judicial Magistrate. 8.

Thereafter, the respondent No.1 moved an application dated 28.03.2018, under Sections 207 and 91 of the Cr.P.C., before the learned Special Judicial Magistrate. The prayer embodied in this application appertained to supply of statements of some witnesses, but, the said prayer was declined vide order dated 05.05.2018. Fetching grievance from this declining order, the respondent No.1 assailed it before this Court by filing CRM-M-22639-2018, but, he failed in his endeavour and this petition was also dismissed. However, liberty was granted to respondent No.1 to avail appropriate remedy.

Subsequently, the respondent No.1 again moved an application dated 28.09.2018, under Section 91 of the Cr.P.C., before the learned Special Judicial Magistrate, thereby seeking issuance of directions upon the C.B.I. to place on record and to supply him the copies of statements of witnesses, however, this application was also dismissed vide order dated 29.09.2018. This dismissal order caused pain to the respondent No.1 and triggered him to institute thereagainst CRM-M-45571-2018 before this Court. This time, the efforts of the respondent No.1 reaped benefits inasmuch as, vide order dated 03.12.2018, the petition (supra) was partly allowed by this Court and the trial Court was directed to allow the respondent No.1/petitioner therein, through his counsel, to inspect the

whole record, including the file of unmarked and unexhibited documents. The detailed directions encapsulated in the concluding paragraphs of the order dated 03.12.2018 are extracted hereinafter:- "After hearing the arguments of learned counsel for the parties and the observations made in various judgments, no conclusion can be drawn at this stage as the matter needs to be reconsidered further by the trial Court. However, in case, after reconsideration of the matter in case the trial Court comes to the conclusion that the Investigating Agency is in possession of documents which are required by the accused petitioner, his prayer be considered.

In view of the above, the present petition is partly allowed and impugned order dated 29.09.2018 (Annexure P-1) passed by the Special Judicial Magistrate, CBI Haryana at Panchkula in case FIR No.RC1(S)/2015 SCU.V/SCII/CBI/New Delhi dated 07.01.2015 registered under Sections 120-B, 326, 417 and 506 IPC at Police Station SCII/CBI New Delhi titled as "CBI vs Gurmeet Ram Rahim and others" is hereby set aside with a direction to the trial Court to allow the accused-petitioner through his counsel to inspect the whole record including the statements recorded under Section 161 of the Code and to supply the same, in case, there is relevancy and admissibility on moving such application by him.

The petitioner be also allowed to inspect the file of the unmarked and unexhibited documents referred to in the application moved by the accused in the Court of Special Judicial Magistrate, CBI Haryana at Panchkula. Such inspection be completed within a period of two weeks from the date of moving of such application. The venue of such inspection and the persons by whom the inspection is to be done will be decided by the learned trial Court. It is also made clear that the right of inspection will not affect the validity of any part of the trial including the examination of the accused."

10.

Post the drawing of the order dated 03.12.2018, the applications dated 25.01.2019 and 31.01.2019 were preferred respectively by the

respondents No.1 and 2, under Section 91 of the Cr.P.C., before the learned Special Judicial Magistrate and an affirmative order, which is enclosed in Annexure P-1, was rendered thereon.

11.

In this way, the drawing of the impugned order (Annexure P-1), wherein becomes embodied directions for the C.B.I. to place on the judicial record and to supply to the defence counsel for respondents No.1 and 2 some statements and documents, has propelled the C.B.I. to challenge the validity thereof by filing the instant petition. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE C.B.I. 12.

The principal argument of the learned counsel for the C.B.I. is clothed in the claim that, the making of alike applications by the respondents, and that too one after another, is merely a dilatory tactic. Elaborating this argument, he submits that, while transferring the investigation to the C.B.I., even this Court had observed that, in a previous case wherein the respondent No.1 had/has been facing trial in respect of a heinous offence, the latter remained successful in prolonging the trial. In the present case also, the respondents have been adopting all tactics to prolong the criminal proceedings against them, origin whereof was possible only with the intervention of this Court. Therefore, he claims the impugned order (Annexure P-1) to be drawn in utmost oblivion and disdain to the mandate enclosed in "P. Ponnusamy V/s. The State of Tamil Nadu", 2023(1) R.C.R. (Criminal) 307.

13.

Another argument constructed by the learned counsel for the C.B.I. is that, the direction passed by the learned Special Judicial Magistrate for supplying to the respondents the unrelied upon statements recorded

under Section 161 of the Cr.P.C., for enabling them to cross-examine PW1 and PW2, is totally against the object of Section 162 of the Cr.P.C. He argues that, a statement recorded under Section 161 of the Cr.P.C. can only be used to confront the maker thereof, and except that, the said statement cannot be used for any other purpose either by the prosecution or by the accused.

14.

The learned counsel for the petitioner next argues that, the status reports dated 30.01.2015 and 30.06.2015, as filed before this Court in sealed covers, were neither the part of investigation, nor of any case diary, rather the said reports were only informatory in nature regarding progress of the investigation. Therefore, when these reports are not necessary or desirable to build up the defence, hence supply thereof is totally unwarranted. Consequently, he argues that the impugned order (Annexure P-1) suffers from gross violation of the mandate enclosed in Section 172 of the Cr.P.C. and is liable to be set aside.

15.

Concluding his arguments, the learned counsel for the C.B.I. submits that, without assessing the relevancy and legal admissibility of the statements of 87 witnesses and of police case diary, an omnibus direction has been rendered by the Special Judicial Magistrate, which is specifically contrary to the directions issued by this Court, vide order dated 03.12.2018. SUBMISSIONS OF THE LEARNED COUNSELS FOR THE RESPONDENTS 16.

The prayer made in the instant petition is vociferously opposed by the learned counsels for the respondents. They submit that, the allegations levelled in the present FIR appertain to mass castration of

devotees, but, the C.B.I. has relied upon and made part of the Final Report only the statements of those witnesses who supported its case, whereas, the statements of 87 witnesses, who denied the allegations (supra), have not been made available to the respondents/accused. They claim that, the statements of those 87 witnesses are very much essential to confront PW1 during cross-examination.

17.

Furthermore, by citing an example, the learned counsels for the respondents submits that, in his examination-in-chief, the PW-1 alleged that he was given a Pepsi drink by one Rinku before castration surgery, whereupon, he became unconscious. However, the said allegation does not find spoken to by said Rinku in his statement recorded under Section 161 of the Cr.P.C. Likewise, although the PW-1 also deposed in his examinationin-chief that he along with one Rajinder underwent castration, however, the statement of said Rajinder does not support the claim of PW-1. Therefore, the statements of Rinku and Rajinder are of utmost importance for the respondents/accused to build their defence.

18.

The learned counsels for the respondents submit that, the documents, which although became seized by the C.B.I. during the course of investigation, however, did not become relied upon or placed on record, carry dire significance for the respondents to prove their innocence and to discredit the evidence of PW-1 and the investigating officer concerned. He argues that the prosecution agency is duty bound to furnish all the relied/non-relied upon documents, so that the accused can effectively defend themselves.

19.

Resting their arguments, the learned counsels for the

respondents make dependence upon the verdict rendered by the Rajasthan High Court in "Neelesh Jain Vs. State of Rajasthan", (2006) Crl. L.J. 2151, to claim that, the defence of the accused is not built at stage of defence evidence and actually the defence of the accused is to be built right from the day one and that is from the time of filing of the charge sheet and compliance under Section 207 of the Cr.P.C.

PROCEEDINGS BEFORE THIS COURT 20.

The instant petition has been pending before this Court since 2019. When this petition came up for hearing on 31.05.2019, this Court had directed the trial Court to adjourn the case beyond the date fixed before this Court. In the meantime, the C.B.I. instituted a miscellaneous application CRM-12304-2021 before this Court, which resulted in this Court drawing the order dated 29.04.2021, thereby directing the Special Judicial Magistrate not to press for implementation of the directions embodied in the impugned order. 21.

Thereafter, vide order dated 13.09.2022, this Court directed the C.B.I. to keep the case diary and other records available with them. On 17.01.2023, this Court directed the C.B.I. to make the record available on the next date of hearing. However, on 01.05.2023, a clarification was rendered by this Court that, the documents supplied in pursuance of the order made by this Court, cannot be relied upon till the next date of hearing. The order dated 01.05.2023 is reproduced hereunder:- "List on 31.10.2023.

It is clarified that the documents which were supplied pursuant to the last order, cannot be relied up till the next date. The prayers for the stay mentioned anywhere in the petition and the accompanying application(s), if any, stand disposed. In case, CBI

wants stay in the matter, it shall be permissible for the CBI to file application for stay. Given the nature of interim order, it shall be permissible for the accused to seek adjournment before the trial Court, till the next date." 22.

From the above, it clearly transpires that, although documents have been supplied by the C.B.I. to the respondents/accused, however, a specific interim direction also became passed by this Court not to rely upon such documents till the next date of hearing.

23.

Before gauging the merits/demerits of the instant petition and evincing any opinion thereon, it is deemed imperative to, at this juncture, advert to some relevant and significant legal provisions and judicial precedents. 24.

The Hon'ble Supreme Court has, in Suo Moto Writ (Crl.) No.1 of 2017, Decided on: 20.04.2021, titled as "In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials V/s The State of Andhra Pradesh & Ors.", observed that, while furnishing the list of statements, documents and material objects under Sections 207/208 of the Cr.P.C., the Magistrate should also ensure that a list of other materials (such as statements, or, objects/documents seized, but not relied on) should be furnished to the accused. The relevant paragraph of this verdict is reproduced hereinafter:- "11. The amici pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their posses-

sion, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr.PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr.PC for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified...."

25.

Moreover, in the Suo Moto Writ (supra), High Courts were also directed to incorporate the Draft Rules of Criminal Practice, 2021, as became finalized in terms of the discussion made therein, as part of the rules governing criminal trials. Accordingly, the relevant incorporation was made in the "Procedure in Enquiries and Trails by Magistrates", relevant portion whereof is reproduced hereunder:- "(c) Procedure in the trial of warrant cases instituted on Police Report.

6. Warrant case on Police report - Police to furnish copies to accused before the trial commences:- In a warrant-case (Chapter XIX of the Code of Criminal Procedure, 1973) the procedure would now depend on whether the case has been instituted on a police report or otherwise. Section 238 to 243 of Code of Criminal Procedure, 1973 govern the procedure in warrant cases instituted on police reports. When the accused appears or is brought before the magistrate, the magistrate should, at the commencement of the trial, satisfy himself that he has complied with the provisions of Section 207 Cr.P.C. Further, every accused should be supplied with statements of witness recorded under Sections 161 and 164 Cr.P.C and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer in accordance with Sections 207 and 208 Cr.P.C.

Explanation: The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the Investigating Officer." 26.

Furthermore, by placing reliance upon the observations recorded in Suo Moto Writ (supra), the Hon'ble Supreme Court has, in its verdict rendered in "Manoj and ors. V/s State of Madhya Pradesh", Criminal Appeal Nos.248-250 of 2015, Decided on: 20.05.2022, directed that, in all criminal trials, the prosecution should furnish the list of statements, documents, material objects and exhibits, which are not relied upon by the investigating officer and the presiding officers shall ensure compliance with such rules. The relevant paragraph of this verdict is reproduced hereinafter:- "179. In view of the above discussion, this court holds that the prosecution, in the interest of fairness, should as a matter of rule, in all criminal trails, comply with the above rule, and furnish the list of statements, documents, material objects and exhibits which are not relied upon by the investigating officer. The presiding officers of courts in criminal trials shall ensure compliance with such rules." 27.

The import of the judicial pronouncements (supra) gets further expounded in the verdict rendered by the Hon'ble Supreme Court in case titled as "P. Ponnusamy V/s. The State of Tamil Nadu", 2023(1) R.C.R. (Criminal) 307, relevant paragraphs whereof are reproduced hereunder:- "14. The framework that emerges (by reading Section 173, 207, 208 and Draft Rule 4) is that based on the list of statements, documents, etc. received at the commencement of the trial, the accused can seek appropriate orders under Section 91 of the CrPC, 1973 wherein the magistrate on application of judicial mind, may decide on whether it ought to be called for. Additionally, by virtue of Section 391 of the CrPC, the appellate court, if it deems necessary, may take further evidence (or direct it be taken by a magistrate or court of sessions) upon recording reasoning. This safeguards the right of the accused

in a situation where concern has been raised regarding evidence or material in possession of the prosecution, that had not been furnished, but was material to the trial and disposal of the case..... XX XX XX

17. As stated earlier, the requirement of disclosure elaborated on in Manoj, not only was premised on the formulation of draft rules, but normatively premised on the ratio of the three-judge bench decision in Manu Sharma (supra). In these circumstances, the proper and suitable interpretation of the disclosure requirement in Manoj (supra) would be that:

(a) It applies at the trial stage, after the charges are framed. (b) The court is required to give one opportunity of disclosure, and the accused may choose to avail of the facility at that stage.

(c) In case documents are sought, the trial court should exercise its discretion, having regard to the rule of relevance in the context of the accused's right of defence. If the document or material is relevant and does not merely have remote bearing to the defence, its production may be directed. This opportunity cannot be sought repeatedly - the trial court can decline to issue orders, if it feels that the attempt is to delay. (d) At the appellate stage, the rights of the accused are to be worked out within the parameters of Section 391 CrPC, 1973."

28.

The gist of the hereinabove alluded to judicial precedents can be extracted in the following manner:- (i) the prosecution is required to furnish only the list of statements, documents, material objects and exhibits, which are not relied upon by the investigating officer; (ii) the court is required to, after the charges become framed, give only one opportunity of disclosure and the accused may choose to avail this facility, but, only once;

(iii) in case documents are sought to be produced, the trial court should, after considering the relevancy of the said documents and not merely because it has remote bearing to the defence, direct production thereof. The trial court is at liberty to decline such production, in case it feels that it is a dilatory tactic;

29.

The inference stemming from the hereinabove made discussion is that, not merely because any document has remote bearing to the defence, the trial Court should direct production thereof, rather the relevancy and desirability of such document is the most striking aspect for the Court to consider, while making any decision regarding grant of access to such documents. In case, any document has no relevancy or the trial Court perceives any dilatory tactic, it is well within the domain of the trial Court to decline production of such document.

30.

Moreover, the Hon'ble Supreme Court has, in its verdict rendered in "State of Orissa Vs. Debendra Nath Padhi", 2005(1) RCR (Criminal) 297, categorically held that, the law does not permit a roving or fishing inquiry under the garb of exercising jurisdiction under Section 91 of the Cr.P.C. The relevant paragraphs of this verdict are reproduced hereunder:-

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45.

The Special Judicial Magistrate has also observed that, since there was no request made by the C.B.I. at the time of filing charge sheet, not to supply the statement(s) to the defence, therefore, the statement(s) can be ordered to be brought on record. However, this Court is unable to concur with this observation specifically for the reason that, the desirability, admissibility and relevancy are sine qua non for bringing the same on record with the aid of Section 91 of the Cr.P.C.

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(KULDEEP TIWARI) December 20, 2024 JUDGE devinder Whether speaking/reasoned :

Yes/No Whether Reportable :

Yes/No