Shashi Kumar Gupta vs Central Bureau of Investigation

K.S. Kumaran, J.

Shashi Kumar gupta, the petitioner herein is the brother of Pardeep Kumar Gupta. Pardeep Kumar Gupta is a resident of Yamuna Nagar. Anurag and Sachin (aged about 12 years and 10 years respectively at the time of occurrence) are the sons of the said Pardeep Kumar Gupta. On 12.3.1990 these two boys Anurag and Sachin had gone to play Video Games at the shop of Surinder Kumar Gulati at Yamuna Nagar, but since they did not return home till 5.30 p.m., enquiry was made at the Video Games shop and it was learnt that the boys were not available in the said shop. A telephonic call was received in the house of Pardeep Kumar Gupta informing that the above said boys had been kidnapped and demanding ransom of 3 lakhs if they should be released. Ultimately on the complaint given by the present petitionerShashi Kumar Gupta, a case was registered by the City Police Station, Yamuna Nagar under F.I.R. No. 130 dated 13.3.1990 under Section 364 I.P.C. against unknown persons. The kidnapped boys could not be rescued, aggrieved by which Pardeep Kumar Gupta, the father of the boys filed C.W.P. No. 3868 of 1992 on the file of this Court for a direction to hand over the case to the C.B.I. for investigation. This Court accordingly directed the C.B.I. to take up the investigation. The C.B.I. took up investigation vide FIR No.12/92SPECHD dated 8.6.1992 under Sections 120B, 364, 396 I.P.C. The petitioner''s involvement in the commission of the offence was suspected since the petitioner and his brotherPardeep Kumar Gupta allegedly had some property disputes. PetitionerShashi Kumar Gupta was arrested on 8.9.1992 but was released on bail by Court. One of the coaccused by name Sunil Kumar Gautam was arrested on 28.1.1994 and in the confessional statement under Section 164 Cr.P.C. he had admitted not only his involvement in the kidnapping but also named other cokidnappers namely Kala, the present petitionerShashi Kumar Gupta and others as having kidnapped the boys for the purpose of killing them due to the property disputes between the petitionerShashi Kumar Gupta and his brother Pardeep Kumar Gupta. According to the C.B.I, the evidence on the file suggested that the kidnapped boys have been killed by accused Kala at the instance of the petitionerShashi Kumar Gupta, though direct evidence regarding the death of the kidnapped was not yet available then, and this aspect of the case was under further investigation. Later on the F.I.R. was converted as one with regard to the offences under Section 120B read with Section 302 I.P.C., Sections 302, 364 and 511 I.P.C. on 3.6.1994, during investigation, Mohar Singh son of Ram Singh stated that he had met Kala in the month of Phaghan 1992 in the jail at Saharanpur, that Kala told him that the children were kidnapped at the instance of the present petitioner and killed 8/9 days after the kidnapping. The C.B.I. filed chargesheet against the petitionerShashi Kumar Gupta, Kala and others under Section 120B read with Sections 364 and 386 I.P.C. But the Sessions Judge, Ambala framed charge on 31.7.1995 against the present petitioner and under Sections 120B read with Sections 364 and 386 I.P.C ., under Section 364 I.P.C. against the present petitioner and others and under Section 386 I.P.C. against certain other accused.

During trial, Mohar Singh was examined as P.W.8 and he stated about his meeting Kala, one of the alleged kidnappers, at the jail and Kala telling him abut having kidnapped and killed the children at the instance of the present petitionerShashi Kumar Gupta.

After the evidence of P.W.8 Mohar Singh, Pardeep Kumar Gupta filed an application on 12.3.1996 under Section 216 Cr.P.C. before the Sessions Judge, Ambala, for framing of additional charge against the accused under Section 120B read with Section 302 I.P.C. This application was opposed by Shashi Kumar Gupta the petitioneraccused. After hearing the arguments, the learned Sessions Judge allowed the application by his order dated 5.8.1996 and amended the charge by including Section 120B read with Section 302 I.P.C. Copy of the order of the learned Sessions Judge and the amended chargesheet have been produced as annexure P6.

The petitionerShashi Kumar Gupta has, therefore, filed this revision petition for setting aside the above said order annexure P6.

Pardeep Kumar Gupta, whose sons have been kidnapped and have been allegedly killed, filed Cr. Misc. No. 19859 of 1996 for impleading himself as a respondent and for permitting him to file his reply. He was ordered to be impleaded for the purposes of this petition only as the 3rd respondent, and the counsel for the newly impleaded 3rd respondent was also permitted to advance arguments.

I have heard counsel for both the sides and perused the records.

The question that arises for consideration in this revision is whether the Sessions Court was justified in framing/amending the charges as he has done.

The first contention of the learned counsel for the petitioner is that when Pardeep Kumar Gupta filed the CWP No. 3868 of 1992 on the file of this Court for directing the respondents to refer the complaint i.e. F.I.R. No. 130/13.3.1990 for investigation by C.B.I., he had stated therein that he had received letters written by his childrenAnurag and Sachin in January, 1991 and on 23.6.1991, but the petitioner Shashi Kumar Gupta is now sought to be made liable for punishment under Section 302 read with Section 120B I.P.C. on the ground that Kala, one of the alleged kidnappers confessed in March, 1992 to P.W. 8Mohar Singh that the children were killed 8 or 10 days after kidnapping, which is quite inconsistent with the stand already taken in the Criminal Writ Petition and, therefore, the additional charge should not have been framed. Learned counsel for the petitioner contends that according to the case of the prosecution the two children Anurag and Sachin were kidnapped on 12.3.1990 and if in the year 1991, Pardeep Kumar Gupta, father of the children, had received letters from the children, it is wholly impossible that these children could have been killed 8/10 days after the kidnapping i.e. after 12.3.1990. Therefore, the learned counsel for the petitioner contends that in view of the inconsistency between the case of the prosecution and the present stand, additional charge should/ought not to have been framed.

Such a contention cannot be accepted because it may be that Pardeep Kumar Gupta was under the impression that his children were alive and that the police were not helping him to rescue his children but were obstructing their rescue and, therefore, he filed CWP No. 3868 of 1992 for directing the investigation of the case by the C.B.I. But when some material comes before the Court that the children had been killed soon after the kidnapping, it cannot be stated that a contradictory/inconsistent stand is being taken now. Whether the material that is before the Court is sufficient to convict the accused or not, is an altogether different matter and this Court at this stage will not minutely and critically analyse the facts/stand taken by the parties in order to determine the question whether the additional charges should have been framed or not. If in a case the initial stand of the prosecution was that a particular person has been kidnapped/abducted and charge is framed by the Court merely for alleged kidnapping/abduction, it cannot be contended by the accused that the charge could not be amended to include the charge under Section 302 I.P.C. for the murder of the kidnapped/abducted person if subsequently it comes to the notice of the Court that there are grounds for believing that the kidnapped/abducted person has been murdered. In such circumstances, the Court would certainly be entitled to amend or add to the charges already framed by including the necessary charge/charges. Therefore, this contention put forward by the learned counsel for the petitioner cannot be accepted.

The second contention of the learned counsel for the petitioner is that the statement of Mohar Singh was recorded under Section 161 Cr.P.C. on 3.6.1994 and was available when the C.B.I. filed the chargesheet into Court on 7.11.1994 and yet no chargesheet under Section 302 I.P.C. was filed before the Court. He also contends that even the Sessions Judge, Ambala who framed the charges on 31.7.1995 (Annexure P4) did not deem it necessary or proper to frame charge against either the petitionerShashi Kumar or the other accused under Section 302 I.P.C. but had framed charges against them under Section 120B read with Sections 364 and 386 I.P.C., under Section 364 I.P.C. against the petitionerShashi Kumar and certain others and under Section 386 IPC against certain other accused than the petitioner herein. Learned counsel for the petitioner contends that Mohar Singh had stated in his statement under Section 161 itself the same facts which he has stated in his evidence before the Court as P.W. 8 i.e. in the month of March, 1992, he had met one of the accused namely, Kala in Saharanpur jail and that Kala told him that both the sons of Pardeep Kumar Gupta were kidnapped by him and the members of his gang, that both the boys were got kidnapped by the brother of Pardeep Kumar Gupta due to the property dispute between them, that the boys were got killed by the brother of Pardeep Kumar Gupta, and that he had killed both the boys 8/10 days after the kidnapping. Learned counsel for the petitioner, therefore, contends that inspite of the fact that this statement under Section 161 was available at the time when the charges were framed by the Court initially on 31.7.1995, the Court did not deem fit or proper to frame charges under Section 120B read with Section 302 I.P.C. against the petitioner, because this material could not have formed the basis for the Court to frame the charges under those sections.

I will therefore deal with the question whether on the basis of this material, the Court could frame the additional charge under Section 120B read with Section 302 I.P.C. or not. I will also deal with the question whether the Court was or was not entitled to frame this charge at all in view of the fact that it had not framed the charge under Section 120B read with Section 302 I.P.C. initially inspite of the fact that the statement under Section 161 Cr.P.C. of Mohar Singh was available to the Court even at that time.

In my view, the Court is certainly entitled to amend or add to the charges already framed if it is brought to the notice of the Court that materials are there necessitating/justifying the amending or adding to the charges already framed. Section 216(1) Cr.P.C. which I have extracted below, enables the Court to do so :

"216. Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced."

If there is some error or omission in the charges framed, the Court can certainly rectify the same and the accused cannot contend that the material was already available to the Court and yet the Court did not frame a charge on that particular point or under a particular section and, therefore, it cannot do so thereafter. Such a contention is against the provisions of Section 216 Cr.P.C. and these provisions of Cr.P.C. are intended for such contingencies. Therefore, this contention of the petitioner cannot be accepted.

The learned counsel for the petitioner contends that when the C.B.I. filed the chargesheet initially on 7.11.1994 (Annexure P2), the C.B.I. had stated therein that the investigation to prove the factum of death of the kidnapped boys through direct evidence is pending, that further investigation will continue and that in case new evidence comes to light, a supplementary challan will be filed into Court, which indicates that even the C.B.I. did not deem it fit to rely upon the alleged confession of Kala to Mohar Singh and to file the chargesheet under Section 120B read with Section 302 IPC against the present petitioner and others. But we find that even in this chargesheet, the C.B.I. has stated that evidence available on the file suggests that the kidnapped boys have been killed by accused Kala at the instance of the accused Shashi Kumar Gupta. But, simply because of C.B.I. had stated that the direct evidence is yet to be collected, and had not filed the chargesheet under Section 302 I.P.C. read with Section 120B I.P.C., it cannot be stated that the charge cannot now be amended to include those offences. Even if the C.B.I. had omitted to include the charge under Section 302 I.P.C. read with Section 120B I.P.C. since it felt that direct evidence was not forthcoming, the trial Court can certainly look into the other circumstantial evidence and also rely on the reasonable inferences that could be drawn from the facts available before it and frame a charge on that basis. Further at the time of framing the charge, the Court is not concerned with the question whether the evidence before it is sufficient for the conviction of the accused. Section 228 of the Criminal Procedure Code which deals with the framing of the charge by the Sessions Court provides that if after the consideration and hearing the submission of the accused and the prosecution, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court of Sessions, then he shall frame the charge against the accused. Similar is the provision contained in Section 240 Cr.P.C. with regard to the power of the Magistrate to frame charge. Therefore, at the time of framing the charge, the Court has only to see whether from the facts placed before it an inference that could reasonably be drawn from the facts placed before it, it can be presumed that a particular offence has been committed. If the answer is in the affirmative, then the Court can frame the charge on that basis. Therefore, this contention of the learned counsel for the petitioner cannot be accepted.

But the vital legal objection taken by the learned counsel for the petitioner is based upon Section 30 of the Indian Evidence Act, 1872. Therefore, it is necessary for our purpose to reproduce Section 30 of the said Act which is as follows :

"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

Explanation. "Offence" as used in this section, includes the abetment of, or attempt to commit, the offence."

The learned counsel for the petitioner contends that since even according to the prosecution, Kala, the coaccused, who is alleged to have made the confession to P.W. 8Mohar Singh is absconding and is, therefore, not facing trial jointly with the other coaccused, the confession allegedly made by him, who is not being jointly tried for the same offence, cannot be taken into consideration as against the other accused. Of course, Kala, the co accused who is stated to have made the confession to P.W.8Mohar Singh is absconding. The question, therefore, is whether his alleged confession can be taken into consideration while framing the charge. This provision contained in Section 30 of the Indian Evidence Act is a rule of evidence as to how far a confession of the coaccused can be relied upon. Already charges have been framed against the petitionerShashi Kumar Gupta and others that they, along with the absconding accusedKala, have committed offences under Sections 364, 386 read with Section 120B I.P.C. As against the petitionerShashi Kumar Gupta and others, a charge under Section 364 I.P.C. has been framed on the basis that they had committed the offence along with the absconding accused Kala. Now, according to the prosecution, there is the alleged extra judicial confession by Kala that the children were kidnapped and killed by him and the members of his gang at the instance of Shashi Kumar Gupta, the petitioner herein. In my view, the Court at the time of framing the charges need not closely scrutinise the finer aspects of the evidence and the law, but, has to take the materials placed before it at face value unless it is against the broad probabilities.

In this connection, the learned counsel appearing for the C.B.I. relied upon a Division Bench decision of the Himachal Pradesh High Court in Sidhu Ram v. Ramesh Kumar, 1996(1) R.C.R. 320 wherein it has been held as follows :

"The law is well settled that finer appreciation of law and facts involved in the case is to be avoided at the stage of framing of charge. The manner of sifting of evidence and the yardstick to measure these at the stage of charge and at the end of the trial are different. The giving of any benefit of doubt on the material collected by the police in view of the possible defence of the accused, which may not be positive at the stage of the charge, has to be avoided.

This decision certainly goes to support the contention of the learned counsel appearing for the C.B.I.

Further, as pointed out already, the charges have already been framed against the accused for conspiracy and kidnapping the children for the purpose of killing them and for extortion by putting the children in fear of death.

The offence was committed on 12.3.1990. Nothing has been heard about the children till today and more than 7 years have elapsed. Although it is stated that Pardeep Kumar Gupta had received letters in the year 1991 in the hand writing of the said children, it can well be contended by the prosecution that they were only makebelief affairs since it is not the case of anybody that Pardeep Kumar Gupta has heard about children subsequently. In the circumstances, Section 108 of the Indian Evidence Act will shift the burden to the accused to prove that the children are alive once it is proved that they have not been heard of for 7 years by their parents who would have otherwise heard about them if they were alive. In the circumstances, the Court will also be entitled to take into consideration this presumption while framing the charge and come to a prima facie conclusion that the children have been killed by the kidnappers at the instance of the petitioner. In this connection, the learned counsel for the C.B.I. is supported by a decision of the Hon''ble Supreme Court in R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045, where it was held as follows :

"When the Court is considering under Section 245 subsec. (1) of the Criminal P.C. whether any case has been made out against the accused which if unrebutted would warrant his conviction, it is difficult to understand as to how the Court can brush aside the presumption under Section 4 of the Prevention of Corruption Act, 1947.

... ... ...

We do not therefore see any substance in the contention raised on behalf of the first respondent and we must proceed to dispose of this appeal on the basis that even for the purpose of considering whether a charge should be framed or not the presumption under Section 4 must be taken into account."

Therefore, I am of the view that in the circumstances of the case, the Court is entitled to presume, for the purpose of farming the charges, that the petitioner could have been responsible for the death as well of the kidnapped children. The decision of the Hon''ble Supreme Court in Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others, AIR 1990 SC 1962, relied upon by the learned counsel for the C.B.I. holds as follows :

"From the above discussion, it seems well settled that at the Sections 227228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."

It cannot be stated that it will be against the broad probabilities if in the circumstances of the case, the Court were to presume from the facts placed before it that the children were kidnapped and killed at the instance of the petitionerShashi Kmmar Gupta since it is not necessary for the Court at this stage to critically analyse the evidence placed before it in order to find out whether the material placed is sufficient to convict the accused. The material must be sufficient to make the Court presume that the accused could have committed the offence. As pointed out already, from the facts before the Court, if this Court could presume that the accused could have committed the offence of murder as well in pursuance of the conspiracy, then charge under Section 120B I.P.C. read with Section 302 I.P.C. can very well be framed.

I will also refer to some of the other decisions relied upon by the learned counsel for the C.B.I. He relied upon the decision of the Hon''ble Supreme Court in State of Maharasthra v. Som Nath Thappa, 1996(2) R.C.R. 480 , wherein the Supreme Court, after referring to A.R. Antulay''s case, AIR 1986 SC 2045, observed as follows :

"In Antulay''s case, Bhagwati, C.J., opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence.

Let us note the meaning of the word "presume". In Black''s Law Dictionary it has been defined to mean "to believe or accept upon probable evidence." (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to the contrary is forthcoming." Stroud''s Legal Dictionary has quoted in this context, a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged". (Emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.

The aforesaid shows that if on the basis of the materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

If we consider the present case on hand in the light of these decisions, then it will be clear that the adding of the charge under Section 120B read with Section 320 I.P.C. is only proper because the case of the prosecution is that the petitionerShashi Kumar Gupta, in view of certain property disputes between him and his brother Pardeep Kumar Gupta, had conspired with the other accused, kidnapped the children of Pardeep Kumar Gupta for the purpose of killing them. Charges have been framed against them for kidnapping the children for the purpose of killing, and for extortion against certain accused. In such circumstances, on the materials placed, the Court can come to the conclusion that the commission of the offence of murder is a probable consequence, because as pointed out already, now, though not at the time of framing of the additional charge by the trial Court, 7 years have elapsed and nothing has been heard of the children by their parents. Therefore, the commission of the offence of murder can be a probable consequence, and, therefore, the additional charge can be framed even if we are to exclude the extrajudicial confession allegedly made by Kala to P.W. 8Mohar Singh from our consideration for the purpose of framing the additional charge.

Learned counsel for the C.B.I. relied upon a decision of this Court in State of Punjab v. Narender Singh and others, 1991(1) R.C.R. 226, wherein it was held that the case of the prosecution is not to be scrutinised to the extent as it is to be scrutinised at the final stage, and that the powers of a trial Judge at the stage of framing charge are limited in the sense that he has to see whether there is prima facie case against the accused or not.

Another decision relied upon by the learned counsel for the C.B.I. is State of Bihar v. Ramesh Singh, AIR 1977 S.C. 2018 wherein it has been held as follows :

"It is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused."

Therefore, even if there is a strong suspicion against the accused, then the Court can frame the charge against the accused. As pointed out already, in this case, the Court can also say that there is a very strong suspicion against the petitioner herein that he has got the children kidnapped and murdered them. On this ground also, the additional charge framed has to be sustained.

The learned counsel for the petitioner relied upon a decision of the Hon''ble Supreme Court in Haricharan Khurmi v. State of Bihar, AIR 1964 S.C. 1184, wherein it was held that a confession of the coaccused cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence. But as rightly pointed out by the learned counsel for the C.B.I., this decision related to the criminal appeals filed by the accused persons who were found guilty and convicted. But as pointed out already, the tests which are applied for convicting a person are not to be, and need not be applied at the time of framing a charge against the accused. Therefore, this decision will not help the petitioner.

Therefore, taking into consideration all these aspects, I am of the view that this Court need not examine the finer aspects of law and facts at the time of framing the charge and, therefore, the alleged extra judicial confession made by the accused Kala to P.E. 8Mohar Singh can be taken into consideration for the purpose of framing the charge only. I am also of the view that the Court is entitled to presume in the circumstances of the case that the accused is guilty of having committed the offence under Section 120B read with Section 302 I.P.C. for the purpose of framing the charge, and for this purpose, the Court is also entitled to take into consideration the legal presumptions that could be drawn from the facts available in this regard, and also take into consideration the probable consequences of certain facts placed before the Court. Therefore, this revision has to fail.

Accordingly, this petition is dismissed but the observations made in this judgment shall not be taken to be expressions of opinion on the merits of the case, and the learned Sessions Judge will dispose of the case on merits uninfluenced by the observations made herein.