in the court of sh. ajay pandey additional sessions … · tajender pal singh could not be tried in...

IN THE COURT OF SH. AJAY PANDEY ADDITIONAL SESSIONS JUDGE 04

PATIALA HOUSE COURTS: NEW DELHI.

CNR No. DLNDO10154222017

SC No. 403/17FIR No. 105/81PS – Palam AirportU/s 121/121A IPC r/w section 120B IPC.

State

Vs.

1. Tajender Pal SinghS/o late Sh. Harbans SinghR/o H. No. 289/R, Model TownJalandhar, Punjaband H. No. 776, Housing Board Colony,Guru Teg Bahadur Nagar, Jalandhar,Punjab.

2. SatnamS/o late Sh. Kashmir Singh

State VS Tajender Singh and Ors.FIR no. 105/81PS – Palam Airport Page no. 1 of 79

R/o H. No. 229, Advocate Enclave,Sector, 49A, Chandigarh and VillageBauripur, Mohalla Samsharpur,Ward no. 4, Ponta Sahib, Distt. SirmorHimachal Pradesh (previous address).

3. Gajender Singh POS/o Sh. Manohar SinghC/o Sh. Darshan Singh (brother of accused)H. No. 2851, Ground floor, Sector22C,ChandigarhR/o H. No. 3646, Sector23D, Chandigarh.

4. Karan Singh @ Kinni POS/o late Sh. Balwant SinghSector3, Model Town, Digiana,PSGangial, Jammu, J&K and villagevillageFaujipura, District Badgam,J&K.

5. Jasbir Singh Chima POS/o Sh. Mira SinghVPO Tepla, Distt. Ambala, Haryanaand village Chilla Manoli, Distt. Mohali,Punjab (previous address).

Date of Institution : 21.11.2017Date of Arguments : 14.08.2018Date of Judgment : 27.08.2018


JUDGMENT:

1. Accused Tajender Singh and accused Satnam Singh

are charged that on or before 29.09.1981, they along with

absconding accused Gajinder Singh, Jagbir Singh

Cheema and Karan Singh conspired to commit an offence

of waging war or attempting or abetting to wage war

against the Government of India and in furtherance of

the said conspiracy they along with abovementioned

absconding accused persons hijacked Air India Flight No.

IC 423 (BOING 737) carrying 111 passengers with 06

crew members and took the said flight to Lahore while

shouting slogans “Khalistan Zindabad, Bhindrawale

Amar Rahe, Khalistan Lekar Rahenbge”.

BRIEF HISTORY OF CASE:

2. Air India flight IC423 (Boeing 737) took off from

Palam Airport to Srinagar on 29.09.1981 and was

hijacked in air. The plane was forced to land at Lahore,

Pakistan.


3. Proceedings in the present case begin with

appearance of accused Satnam Singh, before the then

court of learned ACMM, New Delhi. Accused Satnam

Singh filed an application dated 09.12.1999 before the

then ACMM, New Delhi, stating interalia that he had

hijacked the Indian Airlines Flight No. IC423 on

29.09.1981 carrying 107 members, 04 children and 06

crew members on board from Delhi to Srinagar and

forced that flight to land at Lahore, Pakistan and that he

was arrested, chargesheeted, convicted and sentenced to

imprisonment for life in Pakistan. He also filed a copy of

judgment passed by Ch. Fazal Karim, Spl. Judge, Lahore,

Pakistan, whereby he was convicted for offence u/s 402B

r/w section 34 of Pakistan Penal Code.

4. He further stated in his application that on

09.08.1999, he had surrendered before the court and was

released on bail on 13.08.1999. It was further stated that

he had already undergone imprisonment and thereafter

cannot be again criminally prosecuted in view of Article

20 and 21 of Constitution of India. Accused Satnam

Singh, therefore prayed for his discharge.


5. On the said application the then learned ACMM,

passed detailed order dated 11.02.2000, thereby

concluding that trial of accused Satnam Singh in India

would be hit by double jeopardy, because he had already

been convicted for the incidence, by the competent court

of Pakistan. The then ACMM court accordingly

discharged the accused Satnam Singh. In the said order

dated 11.02.2000, detailed discussion about Section 300

Cr.PC and Article 20 (2) Constitution of India was made.

Legal opinion of the Chief Prosecutor Crime and

Railways was also discussed. In the said opinion Chief

Prosecutor Crime and Railways, reported that coaccused

Tajender Pal Singh could not be tried in this case because

he had already been convicted by Lahore Special Court of

Pakistan.

6. After discharge of accused Satnam Singh, vide order

dated 11.02.2000, coaccused Tajender Pal Singh also

moved an application on 19.07.2000 for seeking his

discharge stating interalia that he has also been

convicted and sentenced to life imprisonment in case FIR

no. 15/85 u/s 402B r/w section 34 Pakistan Penal Code by


Special Court, Lahore, Pakistan and that he had already

undergone life imprisonment and therefore cannot be

criminally prosecuted for the same offence in India. He

also prayed for his discharge.

7. Report were called on the application of accused

Tajender Pal Singh.

8. Order sheet dated 11.07.2006 of the then ACMM,

New Delhi reflects that during the course of proceedings,

it was revealed that main court file of FIR 105/81 titled

as State Vs Harsimran Singh had been consigned to

record room vide order dated 13.05.1983 passed by

Hon'ble Mr. Justice M.K. Chawla, the then learned ASJ,

New Delhi. Accordingly file was requisitioned from record

room. Simultaneously, police headquarter was directed

for sending concerned IO or deputing any other

competent officer to appear before the court to pursue the

case along with VRK file bearing FIR no. 105/81 of PS

Palam Airport.

9. The order sheet dated 02.08.2006 records that Mr.

Sanjay Kumar, LDC, Record Room, Sessions, informed

the then ACMM court that file in question was destroyed


on 20.06.2002. In the same order sheet SHO PS

Parliament Street sought more time to trace the file from

VRK.

10. Vide order sheet dated 16.09.2006, it is recorded

that file could not be traced from VRK.

11. Vide order sheet dated 31.10.2006, it is recorded

that Addl. SHO PSPalam, appeared in the court. He was

unable to give any satisfactory reply to the question

whether chargesheet has been filed against accused

Tajender Pal Singh or not. Addl. SHO PSPalam,

however confirmed that chargesheet was filed against

one Harsimran and the case was decided in his favour by

the court of Sh. M.K. Chawla, the then learned Addl.

Sessions Judge.

12. Thereafter, vide order sheet dated 31.10.2006, it is

recorded that despite repeated attempts of SHOPalam,

file could not be traced from VRK and DD no. 24 dated

04.10.2006, has been recorded to this effect. Submissions

of ACP Sh. B.B. Chaudhary, that request had been made

to Judicial Desk Officer, Jaisalmer House, Ministry of

Home Affairs, to trace the documents regarding


prosecution sanction in this case, are also recorded. It is

further recorded that as per report dated 26.10.2006 of

the Ministry of Home Affairs, the sanction file of this case

is not available/traceable. In the same order dated

31.10.2006, the then court of learned ACMM, raised

following queries to the Commissioner of Police:

1) Whether the present accused Tejinder Pal

Singh who has already faced conviction in Lahore Court

has ever been charge sheeted in respect of the alleged

offences in FIR No. 105/81;

2) Whether any sanction has ever been taken from

the Government against the accused who have returned to

India after having undergone conviction in respect of the

offences covered under Chapter 6 of IPC dealing with

offences against the nation.

3) If in case the final report has not been filed

against the accused Tejinder Pal Singh the Commissioner

of Police shall also inform this court regarding the status

of investigations against all the accused who have

returned to India after having undergone the period of

conviction from Lahore, Pakistan and also if the


investigating agency intends to proceed further in the

case.

13. In compliance of order dated 31.10.2006, report was

filed in the then court of learned ACMM under the

signature of Deputy Commissioner of Police, Crime and

Railways. In response to first query DCP informed

“During the enquiries conducted and material gathered

on the matter pertaining to the queries raised by the

Hon'ble Court, there is nothing to suggest that the

accused Tejinder Pal Singh was chargesheeted in the

present case in question. It is however certain that no

investigation was carried out against him after his return

to India after serving conviction sentence in Pakistan. In

the matter of the accused Satnam Singh in the instant

case, the Delhi Police did not press the charges against

him and the Hon'ble Court of Ms. Sangeeta Dhingra

Sehgal did not proceed the trial proceedings against him

for reasons finding mention in the current order dated

31.10.2006 of the Hon'ble Court. On perusal of the order

dated 11.02.2000 of the Hon'ble Court of Ms. Sangeeta

Dhingra Sehgal, the then ACMM, New Delhi, it is clear


that the accused Tejinder Pal Singh after serving

conviction sentence in Pakistan had reached New Delhi

from Canada on 25.12.1997. He was then interrogated by

the Delhi Police and a legal opinion of the then Chief

Prosecutor/Crime & Railways was sought who had

opined that the accused Tejinder Pal Singh could not be

tried in India as the same was violative of the provisions

envisaged in Section 300 Cr.PC of India.

14. In response to second query of the court about the

sanction against the accused Tejinder Pal Singh, DCP in

his report has stated “A request was made to the Judicial

Desk Officer, Jaisalmer House, Ministry of Home Affairs

for tracing the documents regarding the prosecution

sanction in this case. The MHA has informed vide Letter

No. F.9/17/2006 dt. 26.10.2006 that the record

pertaining to this case is not traceable there. The Home

Deptt., GNCT Delhi have also informed vide letter no.

F.24/29/2006 dt. 22.11.2006 that no such sanction has

been granted u/s 196 Cr.PC by them in this case as per

record maintained in their office.

15. Thereafter various orders were passed by the then


court of learned ACMM and investigating agency took

time to decide future course of action. In the order sheet

dated 05.09.2009 it was recorded by learned ACMM2

“In case none is appearing on behalf of investigating

agency on the next date of hearing, it shall be presumed

that they are not interested in the present case and the

application filed by the accused Tajender Singh”.

16. Thereafter on 01.10.2011, supplementary charge

sheet was filed before the court of learned ACMM against

all accused persons. The said supplementary charge

sheet remained pending for consideration and ultimately

vide order dated 30.08.2012, the then court of learned

ACMM1, Dwarka took cognizance of the offences u/s

121/121A/124A/122B IPC and issued NBWs against

accused persons.

17. In response to process issued by the court accused

Tajender Singh and Satnam Singh, appeared in the

court. Accused Gajender Singh, Jasbir Singh and Karan

Singh, did not appear. Accused Gajender Singh and

Jasbir Singh were declared PO vide order dated 27.12.13.

Accused Karan Singh was declared PO vide order dated


03.02.2014 of the then ACMM01, New Delhi.

18. Vide order dated 17.11.2017 of ACMM01, New

Delhi, case was committed to Sessions court. Case was

assigned to this court on 21.11.2017 vide order dated

20.11.2017 of learned District and Sessions Judge,

Patiala House Courts, New Delhi.

CHARGESHEET:

19. In brief, the case of prosecution in chargesheet is:

a) Sh. G.S. Diwan, Sr. Security Officer, Palam

Airport, Delhi vide his letter No. DAD/SEC/8936/930 to

SHO PSPalam, reported that on 29.09.1981 at 12:20

hours their flight no. IC423 (BOING 737) carrying 107+4

passengers with six crew members took off for Amritsar

Srinagar. At 13:26 hours a message was received that

one Gajender Singh, a supporter of Dal Khalsa armed

with a kirpan had hijacked the plane to Lahore.

Information was further received that he was assisted by

at least one more associate whose identity has not been

confirmed. Both these hijackers were armed with kirpans

and their objective behind hijacking the plane was to


express resentment against the alleged killings at Mehta

Chowk. On this information, present case was registered

u/s 392/397/398/34 IPC and 27/54/59 Arms Act r/w

section 10 of the Indian Aircraft Act, 1934 and the

investigation was taken over by SHO PSPalam.

b) The case was subsequently transferred to

Crime Branch on 30.09.1981. During investigation one

Harsimran Jeet Singh was arrested and chargesheeted

on 10.07.1982. However, the said accused was acquitted

of the charge and file was consigned to record room vide

order dated 30.05.1983 passed by Sh. M.K. Chawla, the

then ASJ. Accused persons Gajender Singh, Karan Singh,

Satnam Singh, Jasbir Singh and Tejinder Pal Singh were

arrested in Lahore, Pakistan vide FIR no. 216/81 u/s 402

B r/w section 34 PPC PSSouth Cantonment, Lahore and

were prosecuted and tried in Lahore vide case No. 15/85

u/s 402A, 402B, 402C r/w section 34 of Pakistan Penal

Code and were convicted and sentenced to life

imprisonment by the Hon'ble Judge Fazal Karim, Special

Court, Punjab, Lahore, Pakistan. They underwent

imprisonment from 30.09.1981 to 31.10.1994.


c) Thereafter, accused Tejinder Pal Singh

returned to India after serving his life imprisonment in

Pakistan on 25.12.1997.

d) Thereafter, another accused Satnam Singh

reached India in 1999 through Nepal by hoodwinking

Indian Agencies. On 09.08.1999 he surrendered before

the court of Smt. Sangita Dhingra Sehgal, the then

ACMM, New Delhi and requested for his discharge from

the present case. The said court vide its order dated

11.02.2000 discharged accused Satnam Singh under the

provisions of section 300 Cr.PC and Article 20 (2) of

Constitution of India.

e) On 19.07.2000, accused Tajender Pal Singh

also moved an application in the court of ACMM, New

Delhi for his discharge from this case in view of

provisions of section 300 Cr.PC r/w article 20 (2) of

Constitution of India citing the precedent of the

discharge of accused Satnam Singh. During the hearing

of the said application, court ordered further

investigation vide its order dated 16.01.2007 specially

under the charges of sedition as they were not the


charges framed by the Lahore Special Court, Pakistan.

f) During investigation literature of Dal Khalsa

was downloaded from its website. It was revealed that all

the five hijackers were members of Dal Khalsa, an

organization based in Amritsar (Punjab) and formed to

achieve the complete independence of Punjab from India.

g) During investigation, efforts were made to

trace the police file from different corners of Delhi Police

including VRK, but the same was found to be destroyed

vide order No. 72931/HAR (IGIA) dated 17.05.1999. The

record was also not found in the record room of court and

it was reported that the record pertaining to the said case

had been destroyed on 20.06.2002.

h) The National Aviation Company of India Ltd

(formerly known as Indian Airlines Ltd) reported that the

copy of the original complaint on the basis of which the

FIR was lodged was also not available with their office.

However, Indian Airlines Ltd. vide letter no.

DPE/Misc./474 dated 29.03.2007, provided the names and

addresses of the four crew members of IA Flight No. IC

423 which was hijacked. However, the addresses of the


remaining two crew members were not available with

their office.

i) During investigation statement of Sh. G.S.

Diwan was recorded and statements of all four crew

members of the said flight namely Capt. Shewak

Nichaldas Dembla, Capt.T.P. Sinha, Sh. Devender

Kumar Mehta and air hostess Ms. A. Rajni, were

recorded. In their statements they stated that Gajender

Singh, Karan Singh, Satnam Singh, Jasbir Singh and

Tejinder Pal Singh had hijacked the plane and took it to

Lahore (Pakistan). Hijackers also raised antiIndia and

proKhalistan slogans and stated that they wanted to

avenge the arrest of Sant Bhindrawala and action of

Government of India against Sikhs in which 19 innocents

Sikhs were killed at Mehta Chowk. They also stated that

accused persons also forced to land the aircraft at Lahore,

without permission of the Government of Pakistan, under

threat to life of crew members and passengers.

j) During investigation efforts were made to

trace the passengers of the said flight. However, Indian

Airlines could not provide the list of passengers as the


same was not found available in their records. Efforts

were also made at Diplomatic level to obtain the certified

copy of the judgment pronounced by the Special Court at

Lahore but the same could not be procured.

k) The two accused persons namely Tejinder Pal

Singh and Satnam Singh were in India while the others

namely Gajender Singh, Karan Singh Kinni and Jasbir

Singh Cheema were reported to be abroad, as per

interrogation of their family members in India.

l) On 10.02.2010 the previous IO Inspector

Arvind Kumar sent a request letter along with required

documents for grant of sanction u/s 196 Cr.PC to charge

sheet the said 05 accused persons for the offences u/s

121/121A/124A/120B IPC. Thereafter, GNCTD vide its

order dated 06.10.2010, granted sanction u/s 196 Cr.PC

against the all five accused persons.

CHARGES:

20. In view of the allegations against the accused

persons in the chargesheet, charges u/s 121/121A IPC

r/w section 120B IPC were framed against both accused


persons to which they pleaded not guilty and claimed

trial. Both accused were discharged from offences u/s

124A IPC.

EVIDENCE:

21. In support of its case prosecution examined 10

witnesses.

22. PW1 Sh. M.A. Ashraf, Dy. Commissioner Excise,

Government of India, proved the sanction granted u/s 196

Cr.PC for the prosecution of the accused persons as

Ex.PW1/A.

23. PW2 ASI Sumer Singh, testified that on

30.03.2007, he was working as Head Constable in

Vernacular Record Keeper (VRK) South and SouthEast

District. On the said day on arrival of one police official

from PSPalam Airport, he checked the record of case FIR

no. 105/81 of PSPalam Airport, u/s 121, 121A, 124A and

120B IPC but the said record was not available in VRK.

24. PW3 Sh. Satish Kumar Meena, Assistant General

Manager (Pers.), Air Indian Engineering Services

Limited, A320 Complex, IGI Airport, TerminalII,


testified that on 28.03.2007, he received a letter

Ex.PW3/A from Inspector Arvind Kumar vide which he

had sought details of 06 employees as mentioned in the

letter. He furnished the information vide letter reference

no. DPE/Misc474 dated 29.03.2007 and proved the said

letter as Ex.PW3/B.

25. PW4 Sh. H.K. Sharma, testified that in September

2009, he was working in the R.K. Puram Office of IB as

Assistant Director. In response to query from DCP Crime

and Railways, he, vide his letter dated 09.09.2009

Ex.PW4/A, provided the names and addresses of the

hijackers of Indian Airlines Plane in 1981, as available in

their record.

26. PW5 Sh. Shewak Nihchaldas Demble, was the

Captain of Indian Airlines Flight No. IC423.

27. PW6 Ms. A. Rajni, was the Air hostess of the

Indian Airlines Flight No. IC423 (BOING 737).

28. PW7 B.S. Jakhar, had conducted the part

investigation in the present case and recorded the

statements u/s 161 Cr.PC, of two witnesses namely A.

Rajni and Mr. S.N. Demble on 04.09.2007 and 20.11.2017


respectively. On 03.05.2008, he had written a letter to

Chief Security Officer (CSO), Indian Airliens for

requisitioning the rukka sent by the office of CSO for

registration of FIR. He proved the copy of said letter as

Ex.PW7/A.

29. PW8 Arvind Kumar, ACP Crime Branch, testified

that the present case was assigned to him for further

investigation. He proved the notice u/s 91/160 Cr.PC

dated 15.03.2007 to Deputy General Manager

(Operations), Indian Airlines, Northern Region, Palam

Airport as Ex.PW8/A; letter dated 16.03.2007 from

General Manager (OPS), Indian Airlines, whereby it was

informed that they do not have any record of the crew

members as Ex.PW8/B and the application for grant of

sanction u/s 196 Cr.PC as Ex.PW8/C.

30. PW9 Sh. M.N. Sampat Kumar, testified that in the

year 2011, he was working as General Manager Security

with GMR company situated at New Urban Bhawan,

opposite Terminal 3, IGI Airport. In September, 2009 he

retired from Air India. On 14.04.2011, he replied to IO

vide his letter No. DELSEC08:069 (Police) 611 dated


12.05.2008, Ex.PW9/A. As per his reply the original letter

reference no. DAD/SEC/8936/930 dated 29.09.1981, was

not available in the office and the same might be

available in the office of Regional Security of Air India

Northern Region.

31. PW10 Inspector Virender Dalal, SHO PSMalviya

Nagar, is the IO of the case.

STATEMENT OF ACCUSED PERSONS:

32. The entire incriminating evidence was put to both

accused persons at the time of recording of their

statements u/s 313 Cr.PC. Accused persons denied

incriminating evidence against them. They further stated

that they had signed applications seeking their discharge

Ex.A and Ex.A1 for the sole purpose of discharge and had

signed the same at the instance and instructions of their

respective counsel.

33. Accused persons chose not to lead evidence in

defence.

ARGUMENTS:


34. Lengthy arguments were addressed by learned Sh.

S.K. Kain, Addl. PP for State and Sh. Maninder Singh,

learned counsel for accused persons.

35. Learned Sh. Kain has submitted that prosecution

has been able to prove its case against both accused

persons through their own admissions and through

examination of prosecution witnesses. Learned Sh. Kain

has drawn attention of the court to section 58 of the

Indian Evidence Act (hereinafter referred as 'The Act'),

which provides as follows :

58. Facts admitted need not be proved – No fact

need to be proved in any proceeding which the parties

thereto or their agents agree to admit at the hearing, or

which, before the hearing, they agree to admit by any

writing under their hands, or which by any rule of

pleading in force at the time they are deemed to have

admitted by their pleadings :

Provided that the Court may, in its discretion,

require the facts admitted to be proved otherwise than by

such admissions.

36. Learned Sh. Kain has drawn the attention of the


court to discharge applications moved by both accused

persons. It is submitted that both applications were

signed by both accused persons personally with proper

legal assistance. Sh. Kain has argued that the

applications contained material admissions and

confessions on behalf of accused persons under their

signatures and those admissions/confessions were filed

during pending judicial proceedings and need not be

formally proved by the prosecution and the court must

take judicial notice of the facts occurring in the case file

and that neither of accused can now be allowed to resile

or backtrack from the admissions voluntary made by

them in their respective applications of discharge. He has

further argued that accused Satnam Singh, specifically

admitted that he had hijacked Indian Flight no. IC423

on 29.09.1981 with 107 passengers, children and crew

members. He further argued that accused Tajender Pal

Singh also admitted in his application for discharge that

he along with accused Satnam Singh was tried in the

case No. 15/85 u/s 402B Pakistan Penal Code by the Spl.

Judge, Lahore, Pakistan and was convicted for hijacking


of Indian plane.

37. Learned Addl. PP has further submitted that

admission of both accused persons must be taken as proof

of their presence in Indian Airlines Flight No. IC423 on

29.09.1981. He has further submitted that admission of

both accused persons has proved the fact that they

hijacked the said flight and for the said act of hijacking

they were convicted by the court of Spl. Judge, Lahore,

Pakistan. He has further argued that testimony of PW5

Sh. Sewak Nischaldas Demple and PW6 Ms. A. Rajni,

details the acts of hijackers of the Indian Airlines Flight

no. IC423. PW5 in his statement categorically stated

that one of the hijacker Gajender Singh had sent message

to Lahore authorities that the Indian plane was hijacked

to secure the release of Sant Jarnail Singh Bhindrawala,

who was arrested by the then Indian Government. Sh.

Kain further argued that for the act of hijacking accused

persons along with coaccused used their kirpan to

terrorize the crew members as well as passengers of

flight no. IC 423, which amounts to the use of force. The

purpose of the act of accused persons was to seek forceful


release of Sant Jarnail Singh Bhindrawala by illegal

means of hijacking, hence both accused persons are liable

to be convicted for the offence u/s 121 and 121A IPC. Sh.

Kain has further drawn attention of the court to the

testimony of PW6 Ms. A. Rajni. He argued that though

PW5 and PW6 have failed to identify the accused

persons but PW6 categorically stated the role of accused

Tajender Pal Singh and Satnam Singh. P6 in her

testimony at page no. 2 stated “During the same time

three more persons namely Karan Singh, Tejinder Pal

Singh and Satnam Singh who were sitting in the fourth

row, stood up from their seats and started shouting

slogans of Khalistan Zindabad, Bhindrawala amar rahe,

khalistan le kear rahenge”. Sh. Kain has submitted that

nonidentification of accused persons by PW5 and PW6

is immaterial in view of own admission of accused

persons about their involvement in hijacking of Indian

Flight No. IC423. He has further argued that confession

of one accused person in his application may be read as

piece of evidence against other accused in view of section

30 of The Act, which reads as under :


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”.

38. Per contra learned Sh. Maninder Singh has

submitted that prosecution must stand on its legs and

facts stated in the application for discharge of accused

persons should not be taken out of context and the only

purpose for filing of applications Ex.A and Ex.A1 by

accused persons was to seek their discharge and the facts

stated therein should not be taken as voluntary

confessions and the words used therein need not to be

interpreted out of context. Sh. Singh has further argued

that even otherwise contents of the application for

discharge by accused persons do not satisfy ingredients of

section 121 and 121A IPC. It is further argued that mere


filing of applications by accused persons do not relieve

the prosecution to prove its case positively against

accused persons. He has further argued that court must

not act on the alleged admissions or the confessions

referred by learned Addl. PP and must see whether any

independent evidence has occurred on record against

either of accused.

39. Sh. Singh has further argued that there is no proper

sanction for prosecution of either of accused persons and

the prosecution case must fail on this ground alone.

40. Court has considered arguments advanced by

learned Sh. S.K. Kain, Addl. PP for State and Sh.

Maninder Singh, for accused persons.

POINTS FOR DETERMINTION:

41. From the arguments of learned counsel for the

parties and in view of mandate of section u/s 354 (1) (b)

Cr.PC, following points for determination are culled out :

1) Whether prosecution has not been able to

prove proper application of mind for grant of sanction u/s


196 Cr.PC ?

2) Whether conviction of accused persons in the

absence of records and main chargesheet of FIR no.

105/1981 would be unjustified?

3) Can admissions/confessions in the applications

for discharge of accused persons, be acted upon?

4) Whether prosecution has been able to satisfy

the ingredients of section 121 or 121A IPC against the

either of accused?

42. The court shall deal with each point for

determination one by one.

WHETHER PROSECUTION HAS NOT BEEN

ABLE TO PROVE PROPER APPLICATION OF

MIND FOR GRANT OF SANCTION U/S 196 CR.PC:

43. The prosecution has examined PW1 Sh. M.A.

Ashraf, Dy. Commissioner Excise, Government of Delhi.

He proved the sanction u/s 196 Cr.PC. This witness

proved the sanction order as Ex.PW1/A, bearing his

signatures at point A. No other witness was examined to


prove the sanction or proper application of mind for grant

of sanction.

44. PW1 stated that after going through the draft

chargesheet, it appeared to Lieutenant Governor of

Delhi that accused persons have prima facie committed

the offence punishable u/s 121/121A/124A/120B IPC and

as per the directions of Lieutenant Governor of Delhi, he

on behalf of Lieutenant Governor of Delhi, conveyed the

sanction for prosecution of accused persons.

45. Along with the chargesheet, IO has filed request

letter for grant of sanction u/s 196 Cr.PC. The same was

exhibited in the testimony of IO as Ex.PW8/C. The said

request letter further contained a letter dated 15.05.2010

which is purportedly written by Addl. DCP, Crime to

DCP (Hqs). The last paragraph of the said letter is

reproduced herein below:

“In view of the above facts, it is requested that the

necessary sanction of the competent authority u/s 196

Cr.PC to prosecute the accused persons namely (1)

Gajender Singh S/o Manohar Singh, (2) Satnam Singh

S/o Kashmir Singh, (3) Tejinder Pal Singh S/o Harbans


Singh, (4) Karan Singh Kini S/o Balwant Singh and (5)

Jasbir Singh Chima S/o Mira Singh may kindly be

obtained and conveyed to this offence for further course of

action. Copies of the chargesheet, Rukka, FIR and

disclosure statements of the accused persons are also

enclosed for ready reference”. (emphasis supplied)

46. Learned Sh. Maninder has rightly argued that

Worthy Addl. DCP has specifically mentioned that the

copies of chargesheet, rukka, FIR and disclosure

statements of accused persons are enclosed along with

request for sanction u/s 196 Cr.PC. He has rightly argued

that letter appears to have been written without

consideration of the facts and circumstances of the case

and without application of mind. It is written in the

chargesheet itself that rukka was not available despite

efforts made by the IO. It is further mentioned in the

chargesheet that even the original file of FIR no.

105/1981 could not be traced in VRK. PW2 ASI Sumer

Singh also testified to the similar effect that record of

case FIR no. 105/1981 PSPalam was not available in

VRK. It has come in the ordersheets of the committal


court that even the main chargesheet of FIR no. 105/81

was not available in the record rooms of court and the

same was destroyed. Rukka as well as FIR no. 105/81

was not available. Hence, same could not have been sent

to any authority for seeking sanction u/s 196 Cr.PC.

Similarly, there is no disclosure statements of accused

persons. None of the IO stated that he recorded any

disclosure statement of accused. No disclosure statement

has been annexed with chargesheet. Hence, the same

could not have been sent alongwith application for

sanction of prosecution. Hence, letters for grant of

sanction and consequent sanction were written without

application of mind and without considering the facts and

circumstances of the case.

47. Now coming to the letter of sanction Ex.PW1/A, it is

again mentioned in the same that the allegations in case

FIR no. 105 dated 29.09.1981 PSPalam were considered.

48. It is rightly submitted by learned Sh. Singh that if

the rukka or FIR no. 105/81 was not available with the

police authorities or in the court records or otherwise in

the office of Lieutenant Governor of Delhi, the contents of


the same could not have been considered by the

Lieutenant Governor of Delhi. Hence, the sanction has

been drafted in a mechanical manner.

49. Moreover, crossexamination of PW1 reflects that

he is not aware of the facts and circumstances under

which the Lieutenant Governor of Delhi, had accorded

any sanction for prosecution of accused persons. In his

crossexamination PW1 stated “No one has appeared

before me to brief the case of the prosecution. I do not

know whether Hon'ble Lt. Governor had not gone through

the draft charge sheet and other documents and he was

not briefed about the case by anyone. I did not draft the

sanction order, nor I typed it nor it was typed on my

dictation or in my presence. I cannot recall whether any

document was brought to my notice or to the notice of any

other office staff including the worthy governor to verify

the addresses of the persons named in Ex.PW1/A against

whom the sanction was allegedly accorded”. He further

stated “There is no document on record, signed or

initiated or written by the Lt. Governor to reflect that I

was authorized to sign on behalf of Lt. Governor in the


sanction order Ex.PW1/A”. ]

50. Sh. Maninder Singh, has relied upon the judgment

in the case of Md. Yaqub Vs State of West Benbgal,

C.R.A. No. 490 of 2001 with C.R.A No. 11 of 2002,

decided on 03.09.2004, to submit that sanction u/s 196

Cr.PC is not a mere formality and the prosecution case is

bound to fail for improper sanction.

51. In the case of Md. Yaqub Vs State of West

Bengal (supra), it was held :

….............. Now, section 196 Cr.PCprohibits the Court in mandatory terms totake cognizance of certain offences asmentioned therein without previoussanction of the Central of State Govt., asthe case may be, the object being to preventunauthorized persons from intruding inmatters of State. Sanction is requiredbefore cognizance is taken (AIR 1966 SC220). sanction constitutes a conditionprecedent to prosecute and confersjurisdiction. Defect in jurisdiction cannotbe cured by section 465 [AIR 1948 PC 82;49 CWN 53 (FB)]. Sanction should beexpressed with sufficient particularity andstrict adherence to the language of thesection. Though not essential it is plainly


desirable that the facts should be referredto on the face of sanction, but if it is not soshown, the prosecution must prove byextraneous evidence that those facts wereplaced before the sanctioning authority.Otherwise, the sanction is invalid. It isplain that the Govt. cannot adequatelydischarge the obligation of decidingwhether to give or withhold a sanctionwithout knowledge of the facts of the case(AIR 1948 PC 82). Similar is the decisionreported in Masukhlal VithaldasChauhan Vs Gujarat, 1997 SCC (Cri)1120 where it was held that grant ofsanction is not an idle formality or anacrimonious exercise but a solemn andsacrosanct act which affords protection toGovt. Servants against frivolousprosecution (AIR 1979 SC 677). Sanctionis a weapon to ensure discouragement offrivolous and vexatious prosecution and isa safeguard for the innocent but not ashield for the guilty. The validity of thesanction would, therefore, depend upon thematerial placed before the sanctioningauthority and the fact and that all therelevant facts, material and evidence havebeen onsidered by the sanctioningauthority. Consideration impliesapplication of mind. The order of sanction


must ex facie disclose that the sanctioningauthority had considered evidence andother material placed before it. This factcan also be established on extrinsicevidence by placing the relevant filesbefore the court to show that all relevantfacts were considered by the sanctioningauthority. All that is required is sanctionfor prosecution and not sanction forinvestigation. Initiation of a criminalproceeding and prosecution are not thesame and one thing. Sanction ispermission to prosecute granted by theauthorities concerned (AIR 1955 Cal 517).So, though there may not be so muchobjection for using the word “permission”instead of “sanction”, the requirements ofsection 196 do not appear to have beenfulfilled here as permission or sanctionwas sought for on 15.09.1999 i.e. on thedate of arrest of accused Ahmed Ali andthe permission or sanction to investigatewas accorded on the following date16.09.1999 thereby leading to suggest thatthe sanctioning authority had no scope toapply mind to the facts of the case as alsomaterial and evidence collected duringinvestigation. Moreover, neither any nameof the offender nor the fact of the case hasbeen borne out in the sanction order nor


there was any attempt on the part of theprosecution to prove it by extrinsicevidence. Accordingly, prior sanctionwhich is a sine qua non for prosecutionbeing invalid; cognizance taken is bad inlaw and the prosecution must fail on thisground alone. (emphasis supplied).

52. In the sanction order of this case, it is written that

request for sanction was accompanied with the disclosure

statements of the accused persons but PW8 IO of case

categorically stated “It is correct that I did not sent any

disclosure statement of accused to the sanctioning

authority”.

53. In the case of Jhancy Margaret and Ors. Vs

State of Karnataka and Ors., Crl. P. No. 4676 of

2013, decided on 18.12.2013, the Hon'ble Apex Court

quoted the excerpt from the judgment in Mansukh Lal as

follows:

19. Since the validity of “Sanction”depends on the applicability of mind bythe sanctioning authority to the facts ofthe case also the material and evidencecollected during investigation, it


necessarily follows, that the sanctioningauthority has to apply its ownindependent mind for the generation ofgenuine satisfaction whether prosecutionhas to be sanctioned or not. The mind ofthe sanctioning authority should not beunder pressure from any quarter norshould any external force be acting upon itto take decision one way or the other.Since the discretion to grant or not togrant sanction vests absolutely in thesanctioning authority, its discretionshould be shown to have not been affectedby any extraneous consideration. If isshown that the sanctioning authority wasunable to apply its independent mind forany reason whatsoever or was under anobligation or compulsion or constraint togrant the sanction, the order will be hadfor the reason that the discretion of theauthority “not to sanction” was takenaway and it was compelled to actmechanically to sanction the prosecution”.(emphasis supplied).

54. In the case in hand it is already discussed that the

sanctioning authority has referred to the documents

which were never the part of the request letter for

sanction. Hence, a clear nonapplication of mind or the


consideration of extraneous material is reflected.

55. In the case of Masukhlal Vithaldas Chauhan Vs

State of Gujarat, (1997) 7 SCC 622, it was held :

17. Sanction lifts the bar forprosecution. The grant of sanction is notan idle formality or an acrimoniousexercise but a solemn and sacrosanct actwhich affords protection to governmentservants against frivolous prosecutions(See Mohd. Iqbal Ahmed V. State of A.P.)Sanction is a weapon to ensurediscouragement of frivolous and vexatiousprosecution and is a safeguard for theinnocent but not a shield for the guilty. 18. The validity of the sanctionwould, therefore, depend upon the materialplaced before the sanctioning authorityand the fact that all the relevant facts,material and evidence have beenconsidered by the sanctioning authority.Consideration implies application of mind.The order of sanction must ex facie disclosethat the sanctioning authority hadconsidered the evidence and other materialplaced before it. This fact can also beestablished by extrinsic evidence byplacing the relevant files before the Courtto show that all relevant facts wereconsidered by the sanctioning authority.


(See also Jaswant Singh V. State ofPunjab and State of Bihar V. P.P.Sharma). 19. Since the validity of “sanction”depends on the applicability of mind by thesanctioning authority to the facts of thecase also the material and evidencecollected during investigation, itnecessarily follows that the sanctioningauthority has to apply its own independentmind for the generation of genuinesatisfaction whether prosecution has to besanctioned or not. The mind of thesanctioning authority should not be underpressure from any quarter nor should anyexternal force be acting upon it to take adecision one way or the other. Since thediscretion to grant or not to grant sanctionvests absolutely in the sanctioningauthority, its discretion should be shown tohave not been affected by any extraneousconsideration. If it is shown that thesanctioning authority was unable to applyits independent mind for any reasonwhatsoever or was under an obligation orcompulsion or constraint to grant thesanction, the order will be bad for thereason that the discretion of the authority“not to sanction” was taken away and itwas compelled to act mechanically to


sanction the prosecution”.

56. In the case of Jaswant Singh Vs State of Punjab,

AIR 1958 SC 124, decided on 25.10.1957, it was held:

“It should be clear from the form ofthe sanction that the sanctioning authorityconsidered the evidence before it and aftera consideration of all the circumstances ofthe case sanctioned the prosecution, andtherefore unless the matter can be provedby other evidence, in the sanction itself theshould be referred to indicate that thesanctioning authority had applied itsmind to the facts and circumstances of thecase. In Yusofalli Mulla v. The King 76Ind App 158 : (AIR 1949 PC 264) (C ) itwas held that a valid sanction on separatecharges of hoarding and profiteering wasessential to give the Court jurisdiction totry the charge. Without such sanction theprosecution would be a nullity and thetrial without jurisdiction”.

57. In the present case neither the sanctioning

authority was called in evidence nor any official or officer

who put the file before the Sanctioning Authority or

briefed the Sanctioning Authority about the case has


been examined. PW1 was not even aware of the material

considered by the Sanctioning Authority prior to the

grant of sanction. Neither the sanction order was signed

before him nor he was aware that sanctioning authority

had perused the material placed before it, prior to grant

of sanction. Sanction order itself contains reference to the

material which was never part of record.

58. Hence, in view of the law laid down by Hon'ble Apex

Court, it appears to be rightly submitted by learned Sh.

Singh that accused persons are entitled to acquittal for

want of proper sanction in the present case.

59. Hence, this point is decided in favour of accused.

WHETHER CONVICTION OF ACCUSED

PERSONS IN THE ABSENCE OF RECORDS AND

MAIN CHARGESHEET OF FIR NO. 105/1981

WOULD BE UNJUSTIFIED:

60. This is a unique case of its kind as prosecution

against the present accused persons was not launched or

initiated by the police but was got initiated on the filing

of application for discharge by accused persons. As


already discussed in the brief history of the case,

application for discharge was earlier filed by accused

Satnam Singh. The said application was allowed by the

court of then learned ACMM. Subsequently another

application was filed by accused Tejinder Singh for his

discharge mentioning that he has already been convicted

by Pakistan Special Court for hijacking Indian Airlines

Flight No. IC423. Upon this application, the then

learned ACMM, New Delhi called various reports from

the authorities and it was revealed that FIR no. 105/81

was registered at PSPalam qua incidence of hijacking

Indian Airlines Flight No. IC423. As already discussed

in the brief history of the case, it was also revealed that

chargesheet was filed in the said FIR and one

Harsimran Singh was acquitted by the then court of Sh.

M.K. Chawla, learned ASJ on 30.05.1983. Order sheet

dated 31.10.2006 of the committal court records as

under:

“On receipt of the application the main file was

called but it was reported that the file in respect of

accused Harsimranjit Singh has been weeded out.


Thereafter SHO PSPalam was directed to get the file

from the VRK. I am informed by SHO Palam that despite

repeated attempts he has not been able to trace the file

from VRK and a DD No. 24 dated 04.10.06 of PS Palam

has also been recorded to this effect. It has been stated

that as per the order No.72931/HAR(IGIA) dated

17.05.99 the case files decided upto the year 1996 have

been destroyed. ACP B.B. Chaudhary has submitted that

a request had been made to Judicial Desk Officer,

Jaisalmer House, Ministry of Home Affairs to trace the

documents regarding prosecution sanction in this case but

as per their report dated 26.10.2006 the same is not

available/traceable”.

61. Hence, it is clear that the main chargesheet filed

by the police after registration of case FIR no. 105/81 was

not available either with the police or in the court

records. The documents and contents thereof cannot now

be ascertained. It is further clear that the Ministry of

Home Affairs was unable to trace the documents

regarding the prosecution sanction in the FIR no. 105/81.

62. Court is in agreement with the submissions of


learned Sh. Singh that this court is not supposed to do

any guess work about the grant or refusal of sanction for

prosecution or about the proceedings in the main charge

sheet arising out of FIR no. 105/81.

63. In the ordersheet dated 31.10.2006, court has

raised queries whether the accused Tejinder Singh was

chargesheeted in respect of alleged offence in FIR no.

105/81 and whether any sanction was ever taken from

the Government against the accused.

64. In response to said queries the then DCP Crime and

Railways reported that the record pertaining to the

accused is not traceable in their office. It is worth to

mention here that presence of accused or providing them

a hearing is not necessary for grant of sanction u/s 196

Cr.PC. The sanction against both accused persons could

have been granted or rejected even in their absence and

even when they were lodged in Pakistan jail. In the

absence of record of main chargesheet of FIR no. 105/81,

it cannot be ascertained whether the said chargesheet

contained any sanction qua accused Tejinder Singh and

Satnam Singh. Court is not supposed to hypothicate


about the reasons which could have been available with

the then sanctioning authority for grant or refusal of

sanction. There may be various reasons for grant of

sanction against both accused persons. Similarly, there

may be various reasons for not prosecuting the accused

persons. One such reason might be that accused persons

were already facing trial before the competent court of

common law in Pakistan. In response to other query as to

whether accused Tejinder Singh was chargesheeted,

Worthy DCP stated that there is nothing to suggest that

accused Tejinder Singh was chargesheeted in the

present case in question. He further stated that it is

however certain that no investigation was carried out

against him after his return to India after serving

conviction sentence in Pakistan.

65. From the language used by worthy DCP, it is clear

that there is no certainty of nonincorporation of the

name of accused Tejinder Singh in the main chargesheet

arising out of FIR no. 105/81. Worthy DCP is certain

about one fact only that the investigation was not carried

out after return of accused subsequent to his serving


sentence of imprisonment in Pakistan. The inclusion or

noninclusion of name of accused Tejinder Singh or any

other accused in the main chargesheet would again be

guess work only. The court cannot presuppose that no

investigation was carried out against the accused persons

even when their names surfaced in the hijacking of

Indian plane and forced landing of the same, in Pakistan.

66. Hence, the grant or refusal of sanction by the

earlier competent authority, and/or incorporating the

name of accused persons in the main chargesheet

remains a grey area. It is possible that the sanction

against both accused persons might have been refused. It

is further possible that the sanction against both accused

persons was granted and their names were incorporated

in the main chargesheet. When two views are possible it

is rightly submitted by learned Sh. Maninder Singh that

view favourable to accused be taken. Reliance in this

regard is placed in the case of Ashish Batham Vs State

of M.P., (2002) SCC 317, wherein it was held :

8. Realities or truth part, thefundamental and basic presumption in the


administration of criminal law and justicedelivery system is the innocence of thealleged accused and till the charges areproved beyond reasonable doubt on thebasis of clear, cogent, credible orunimpeachable evidence, the question ofindicting or punishing an accused doesnot arise, merely carried away by theheinous nature of the crime or thegruesome manner in which it was found tohave been committed. Mere suspicion,however strong or probable it may be is noeffective substitute for the legal proofrequired to substantiate the charge ofcommission of a crime and grave thecharge is, greater should be the standardof proof required. Courts dealing withcriminal cases at least should constantlyremember that there is a long mentaldistance between “may be true” and “mustbe true” and this basic and golden ruleonly helps to maintain the vital distinctionbetween “conjectures” and “sureconclusions” to be arrived at on thetouchstone of a dispassionate judicialscrutiny based upon a complete andcomprehensive appreciation of all featuresof the case as well as quality andcredibility of the evidence brought onrecord”.


67. There may be further a possibility that the

prosecution against both accused persons was initiated

but the same was withdrawn u/s 321 Cr.PC. Section 321

Cr.PC reads as under:

321. Withdrawal from prosecution – The Public

Prosecutor or Assistant Public Prosecutor in charge of a

case may, with the consent of the Court, at any time before

the judgment is pronounced, withdraw from the

prosecution of any person either generally or in respect of

any one or more of the offences for which he is tried; and,

upon such withdrawal

(a) If it is made before a charge has been framed,

the accused shall be discharged in respect of such offence

or offences;

(b) if it is made after a charge has been framed, or

when under this Code no charge is required, he shall be

acquitted in respect of such offence or offences:

Provided that where such offence

(i) was against any law relating to a matter to

which the executive power of the Union extends, or


(ii) was investigated by the Delhi Special Police

Establishment under the Delhi Special Police

Establishment Act, 1946 (25 of 1946), or

(iii) involved the misappropriation or destruction

of, or damage to, any property belonging to the Central

Government, or

(iv) was committed by a person in the service of the

Central Government while acting or purporting to act in

the discharge of his official duty, and the prosecutor in

charge of the case has not been appointed by the Central

Government he shall not, unless he has been permitted by

the Central Government to do so, move the Court for its

consent to withdraw from the prosecution and the Court

shall, before according consent, direct the Prosecutor to

produce before it the permission granted by the Central

Government to withdraw from the prosecution”.

68. The withdrawal from the prosecution may be for

various reasons. Court is again not supposed to

hypothecate or start its own guess work for the reasons of

withdrawal from prosecution. The fact of the matter is

that power of withdrawal from prosecution is vested with


the State Government/Public Prosecutor/Prosecutor and

the decision might be taken in pretrial or at posttrial

stage. One of the reasons for withdrawal again might

have been the prosecution of accused persons before the

competent court at Pakistan. It is worth to mention here

that the then court of Ms. Sangeeta Dhingra, the then

learned ACMM, New Delhi, discharged accused Satnam

on considering the prosecution and conviction of accused

persons at Pakistan. If there is possibility that the

prosecution against accused persons had been withdrawn

at pre or pending trial stage, in the opinion of court

accused persons cannot be convicted.

69. Court is not in agreement with the submissions of

learned Addl. PP that accused persons have not taken

any defence of being earlier chargesheeted, or about the

withdrawal of prosecution u/s 321 Cr.PC. It is rightly

submitted by learned Sh. Maninder Singh that before

convicting the accused persons, court is required to be

satisfied beyond reasonable doubt about the grounds for

conviction. If there is possibility or doubt which goes in

favour of accused persons, same may be highlighted even


at any stage before passing of judgment and the legal

points can be argued at final stage also.

70. Prosecution case must stand on its own legs.

Prosecution cannot take benefit of the weakness of

defence. Conviction of accused would make them liable to

death penalty or life sentence. Graver the punishment

higher the burden of proof. The court must weigh all

probabilities, legal and technical, to satisfy that there is

no bar against trial and that all requirements are proved

by prosecution beyond reasonable doubt.

71. In the case of Kali Ram Vs State of Himachal

Pradesh, 1974 CRI. L.J. 1 (V 80 C1) = AIR 1973

Supreme Court 2773, Hon'ble Apex Court held as

follows:

Observations in a recentdecision of this Court, ShivajiSahebrao Vs State of Maharashtra,Cri Appeal No. 26 of 1970, D/ 2781973 = (reported in AIR 1973 SC2662) to which reference has beenmade during arguments were notintended to make a departure fromthe rule of the presumption ofinnocence of the accused and his


entitlement to the benefit ofreasonable doubt in criminal cases.One of the cardinal principleswhich has always to be kept inview in our system ofadministration of justice forcriminal cases is that a personarraigned as an accused ispresumed to be innocent unlessthat presumption is rebutted bythe prosecution by production ofevidence as may show him to beguilty of the offence with whichhe is charged. The burden ofproving the guilt of the accusedis upon the prosecution andunless it relieves itself of thatburden, the courts cannot recorda finding of the guilt of theaccused. There are certain casesin which statutory presumptionsarise regarding the guilt of theaccused, but the burden even inthose cases is upon theprosecution to prove theexistence of facts which have tobe present before thepresumption can be drawn. Oncethose facts are shown by theprosecution to exist, the court can


raise the statutory presumption andit would, in such an event, be for theaccused to rebut the presumption.The onus even in such cases upon theaccused is not as heavy as isnormally upon the prosecution toprove the guilt of the accused. If somematerial is brought on the recordconsistent with the innocence of theaccused which may reasonably betrue, even though it is not positivelyproved to be true, the accused wouldbe entitled to acquittal. Leaving aside the cases ofstatutory presumptions, the onus isupon the prosecution to prove thedifferent ingredients of the offenceand unless it discharges that onus,the prosecution cannot succeed. Thecourt may, of course, presume asmentioned in Section 114 of theIndian Evidence Act, the existence ofany fact which it thinks likely to havehappened, regard being had to thecommon course of natural events,human conduct and public andprivate business, in their relation tothe facts of the particular case. Theillustrations mentioned in thatsection, though taken from different


spheres of human activity, are notexhaustive. They are based uponhuman experience and have to beapplied in the context of the facts ofeach case. The illustrations aremerely examples of circumstances inwhich certain presumptions may bemade. Other presumptions of asimilar kind in similarcircumstances can be made under theprovisions of the section itself.Whether or not a presumption can bedrawn under the section in aparticular case depends ultimatelyupon the facts and circumstances ofeach case. No hard and fast rule canbe laid down. Human behavior is socomplex that room must be left forplay in the joints. It is not possible toformulate a series of exactpropositions and confine humanbehavior within strait jackets. Theraw material here is far too complexto be susceptible of precise and exactpropositions for exactness here isfake. Another golden threadwhich runs through the web ofthe administration of justice incriminal cases is that if two


views are possible on theevidence adduced in the case onepointing to the guilt of theaccused and the other to hisinnocence, the view which isfavourable to the accused shouldbe adopted. This principle has aspecial relevance in caseswherein the guilt of the accusedis sought to be established bycircumstantial evidence. Rulehas accordingly been laid downthat unless the evidence adducedin the case is consistent only withthe hypothesis of the guilt of theaccused and is inconsistent withthat of his innocence, the courtshould refrain from recording afinding of guilt of the accused. Itis also an accepted rule that incase the court entertainsreasonable doubt regarding theguilt of the accused, the accusedmust have the benefit of thatdoubt. Of course, the doubtregarding the guilt of the accusedshould be reasonable : it is not thedoubt of a mind which is either sovacillating that it is incapable ofreaching a firm conclusion or so


timid that it is hesitant and afraid totake things to their naturalconsequences. The rule regarding thebenefit of doubt also does notwarrant acquittal of the accused byresort to surmises, conjectures orfanciful considerations. Asmentioned by us recently in the caseof State of Punjab V. Jagbir Singh,Cri. Appeal no. 7 of 1972, D/ 681973 = (reported in AIR 1973 SC2407) a criminal trial is not like afairy tale wherein one is free to giveflight to one’s imagination andfantasy. It concerns itself with thequestion as to whether the accusedarraigned at the trial is guilty of theoffence with which he is charged.Crime is an event in real life and isthe product of interplay of differenthuman emotions. In arriving at theconclusion about the guilt of theaccused charged with the commissionof a crime, the court has to judge theevidence by the yardstick ofprobabilities, its intrinsic worth andthe animus of witnesses. Every casein the final analysis would have todepend upon its own facts. Althoughthe benefit of every reasonable doubt


should be given to the accused, thecourts should not at the same timereject evidence which is ex facietrustworthy on grounds which arefanciful or in the nature ofconjectures. It needs all the same tobe reemphasised that if areasonable doubt arisesregarding the guilt of theaccused, the benefit of thatcannot be withheld from theaccused. The courts would not bejustified in withholding thatbenefit because the acquittalmight have an impact upon thelaw and order situation or createadverse reaction in society oramongst those members of thesociety who believe the accused tobe guilty. The guilt of the accusedhas to be adjudged not by the factthat a vast number of peoplebelieve him to be guilty butwhether his guilt has beenestablished by the evidencebrought on record. Indeed thecourts have hardly any otheryardstick or material to adjudge theguilt of the person arraigned as


accused. Reference is sometimesmade to the clash of public interestand that of the individual accused.The conflict in this respect, in ouropinion , is more apparent than real.As observed on page 3 of the bookentitled “The Accused” by J.A. Coutts1966 Edition, “when once it isrealized, however, that the publicinterest is limited to the conviction,not of the guilty, but of those provedguilty, so that the function of theprosecutor is limited to securing theconviction only of those who canlegitimately be proved guilty, theclash of interest is seen to operateonly within a very narrow limit,namely where the evidence is suchthat the guilt of the accused shouldbe established. In the case of anaccused who is innocent, or whoseguilt cannot be proved, the publicinterest and the interest of theaccused alike require an acquittal”.(emphasis supplied).

72. The principle was further reiterated by Hon’ble

Apex Court in Harbeer Singh Vs Sheeshpal and Ors,


Criminal Appeal nos. 16241625 of 2013, wherein it

was held :

It is a cardinal principle ofcriminal jurisprudence that guilt ofthe accused must be proved beyond allreasonable doubt. The burden ofproving its case beyond all reasonabledoubt lies on the prosecution and itnever shifts. Another golden threadwhich runs through the web of theadministration of justice in criminalcases is that if two views are possibleon the evidence adduced in the case,one pointing to the guilt of the accusedand the other to his innocence, theview which is favourable to theaccused should be adopted.

73. In Sujit Biswas Vs State of Assam, 2013 (5)

LRC 133 (SC), also Hon’ble Apex Court held that :

Suspicion, however graveit may be, cannot take the placeof proof, and there is a largedifference between somethingthat ‘may be’ proved, andsomething that ‘will be proved’.


In a criminal trial, suspicion nomatter how strong, cannot andmust not be permitted to takeplace of proof. This is for thereason that the mental distancebetween ‘may be’ and ‘must be’is quite large, and divides vagueconjectures from sureconclusions. In a criminal case,the court has a duty to ensurethat mere conjectures orsuspicion do not take the placeof legal proof. The largedistance between ‘may be’ trueand ‘must be’ true, must becovered by way of clear, cogentand unimpeachable evidenceproduced by the prosecution,before an accused is condemnedas a convict, and the basic andgolden rule must be applied. Insuch cases, while keeping inmind the distance between ‘maybe’ true and ‘must be’ true, thecourt must maintain the vitaldistance between mereconjectures and sureconclusions to be arrived at, onthe touchstone of dispassionatejudicial scrutiny, based upon a


complete and comprehensiveappreciation of all features ofthe case, as well as the qualityand credibility of the evidencebrought on record. The courtmust ensure, that miscarriage ofjustice is avoided, and if thefacts and circumstances of acase so demand, then the benefitof doubt must be given to theaccused, keeping in mind that areasonable doubt is not animaginary, trivial or a merelyprobable doubt, but a fair doubtthat is based upon reason andcommon sense.

74. The fact remains that since filing of the application

for discharge, investigating agency was of the opinion

that they do not have the records of FIR no. 105/81. The

facts recorded in the order sheets of committal court

reflect that no additional material qua FIR no. 105/81

was gathered even subsequent to filing of application for

discharge by accused persons. In view of various

probabilities i.e. refusal to sanction, discharge of accused

persons, withdrawal from prosecution etc., which could


have been verified from the record of the main charge

sheet only, it would be unjustified to convict either of the

accused persons. The probabilities must be weighed in

favour of accused persons. In view of existence of any

probability in favour of accused, prosecution is not

entitled to seek conviction of either of accused. Hence,

this point is also liable to be decided in favour of accused

persons.

CAN ADMISSIONS/CONFESSIONS IN THE

APPLICATIONS FOR DISCHARGE OF ACCUSED

PERSONS, BE ACTED UPON:


learned Addl. PP that accused Satnam Singh had himself

stated in his application that he had hijacked the Indian

Airlines Flight No. 423 on 29.09.1981, and same is

sufficient to conclude the act of hijacking by accused.

76. The court is not concerned with the nomenclature or

terminology used by accused in his application. Court

requires proof of each ingredient of any offence to be

brought on record. Merely because accused stated that he


hijacked Indian Airlines Flight, without narrating the

details and the manner in which the plane was

purportedly hijacked by him, court cannot conclude that

plane was hijacked or the passengers were abducted.

There may be various aspects in the mind of accused

while moving the application for discharge. One such

aspect may be conviction by Pakistan Court.

77. Section 43 of the Act stipulates that the judgments

and decrees other than those mentioned in Section 40, 41

and 42 of the Act are not relevant unless the existence of

such judgment, order of decree, is a fact in issue, or is

relevant under some other provisions of the Act.

78. Case of accused persons is not covered under section

40, 41 or 42 of the Act. Hence findings of the judgment of

Pakistan Court, cannot be read against the accused

persons to prove their presence or either of the alleged

act committed by them on board flight no. IC423.

79. Otherwise also this court is not bound by the

judgment of Spl. Judge at Pakistan and an independent

appreciation of evidence is required to be done on the

basis of evidence led in the court itself. Moreover, the


record on the basis of which judgment was passed by the

Pakistan court i.e. the chargesheet, evidence etc. is not

available before this court.

80. The judgment of the Pakistan Court is only relevant

to the extent that accused persons were tried and

convicted before the competent court of Pakistan for the

offence u/s 402B Pakistan Penal Code and for no other

purpose. The said fact of trial of accused persons was

relevant for considering the plea of double jeopardy

raised by accused in view of section 300 Cr.PC and

Article 20 (2) Constitution of India.

81. It is thus held that observations in the judgment of

conviction are not relevant except for the purpose of

considering the plea of conviction or acquittal u/s 300

Cr.PC read in the light of Article 20 (2) Constitution of

India. Hence, mere reference of accused as hijacker, does

not in the absence of positive proof of the ingredients of

hijacking and abduction, is not sufficient to substitute

the proof of positive facts required to be proved by

prosecution.

82. Moreover accused persons are protected against


selfincrimination under Article 20 (3) of Constitution of

India. Court must see the intention and purpose of filing

of application of discharge. Intention and purpose of

filing of application for discharge was not to make

confessions but was limited to seek discharge of the

applicant. Reference of the earlier conviction by the

Pakistan Court does not justify the judgment or the

reasoning in the order of conviction but was only to

highlight that the accused persons may not be

subsequently tried in the courts at India.

83. Accused should not suffer by poor drafting of the

applications by counsel. Even if it is presumed that

accused had made some confessions or admissions before

his then counsel or pleader, the said lawyer was not

supposed to disclose the said communication to the court.

In this regard reliance is placed upon section 126 of the

Act, which is reproduced herein below:

126. Professional communications – No

barrister, attorney, pleader or vakil shall at any time be

permitted, unless with his client's express consent, to

disclose any communication made to him in the course


and for the purpose of his employment as such barrister,

pleader, attorney or vakil, by or on behalf of his client, or

to state the contents or condition of any document with

which he has become acquainted in the course and for the

purpose of his professional employment, or to disclose any

advice given by him to his client in the course and for the

purpose of such employment:

Provided that nothing in this section shall protect

from disclosure

(1) any such communication made in furtherance

of any [illegal] purpose;

(2) any fact observed by any barrister, pleader,

attorney or vakil, in the course of his employment as such,

showing that any crime or fraud has been committed

since the commencement of his employment.

It is immaterial whether the attention of such

barrister, [pleader], attorney or vakil was or was not

directed to such fact by or on behalf of his client.

Illustrations

(a) A, a client, says to B, an attorney “I have


committed forgery, and I wish you to defend me”.

As the defence of a man known to be guilty is not a

criminal purpose, this communication is protected from

disclosure.

(b) …..........

(c) ….........

84. Learned Addl. PP has argued that aforementioned

section cannot be read in favour of accused in this case

because application for discharge was signed by accused

persons themselves which reflects that they consented to

the disclosure of the communication made in the

application.


learned Addl. PP for the reasons already discussed. There

was no informed consent of the accused to convey their

confession or admission to the court. The facts and

circumstances suggest that accused persons had

approached their counsel only for seeking their discharge

in the present case. During the course of arguments court

put a specific query to the accused persons about their

eduction. Accused Satnam Singh stated that he is 08th


standard pass and accused Tejinder Singh stated that he

is 09th standard pass. Accused persons cannot be

considered to be aware of nittygritties and the minute

legalities of their applications. Though the applications

have been signed by them but the background of accused

and the facts and circumstances suggest that the same

could have been done by them on the legal advise only.

The accused therefore cannot be said to have given their

informed consent for admission or confession by their

lawyer who was disqualified to make disclosure

statement in view of section 126 of the Act.

86. The opinion of the court that admissions in the

applications for discharge of accused persons, should not

be acted upon is further supported by the Scheme of Code

of Criminal Procedure 1973 (hereinafter referred as 'The

Code').

87. Admittedly the applications for discharge were filed

by accused at pretrial stage. Rather the proceedings of

this case commenced only on filing of applications for

discharge by accused persons. The code postulates

recording of pretrial confessional statement under


section 164. For the sake of convenience the said section

is reproduced herein below:

164. Recording of confessions and statements

– (1) Any Metropolitan Magistrate or Judicial Magistrate

may, whether or not he has jurisdiction in the case, record

any confession or statement made to him in the course of

an investigation under this Chapter or under any other

law for the time being in force, or at any time afterwards

before the commencement of the inquiry or trial:

[Provided that any confession or statement made

under this subsection may also be recorded by audio

video electronic means in the presence of the advocate of

the person accused of an offence:

Provided further that no confession shall be

recorded by a police officer on whom any power of

Magistrate has been conferred under any law for the time

being in force].

(2) The Magistrate shall, before recording any

such confession, explain to the person making it that he is

not bound to make a confession and that, if he does so, it


may be used as evidence against him; and the Magistrate

shall not record any such confession unless, upon

questioning the person making it, he has reason to believe

that is being made voluntarily.

(3) If at any time before the confession is recorded,

the person appearing before the Magistrate states that he

is not willing to make the confession, the Magistrate shall

not authorise the detention of such person in police

custody.

(4) Any such confession shall be recorded in the

manner provided in section 281 for recording the

examination of an accused person and shall be signed by

the person making the confession; and the Magistrate

shall make a memorandum at the foot of such record to

the following effect:

“I have explained to (name) that he is not bound to

make a confession and that, if he does so, any confession

he may make may be used as evidence against him and I

believe that this confession was voluntarily made. It was

taken in my presence and hearing, and was read over to


the person making it and admitted by him to be correct,

and it contains a full and true account of the statement

made by him.

(Signed) A.B.

Magistrate”.

(5) Any statement (other than a confession) made

under subsection (1) shall be recorded in such manner

hereinafter provided for the recording of evidence as is, in

the opinion of the Magistrate, best fitted to the

circumstances of the case; and the Magistrate shall have

power to administer oath to the person whose statement is

so recorded.

[(5A) …...........]

(6) The Magistrate recording a confession or

statement under this section shall forward it to the

Magistrate by whom the case is to be inquired into or

tried.

88. A bare reading of the above section clarifies that

legislature provided various safeguards for recording of

pretrial confessional statements of accused in the court.


Under section 164 (1), despite enjoying the powers of

Magistrate, a police officer is not competent to record the

confessional statement. Under section 164 (2), before

recording pretrial confessional statement it is the duty of

the court or Magistrate to inform the accused that he is

not bound to make the said statement and that the

statement may be used as evidence against him. It is

further obligation of Magistrate to satisfy himself that

the confession, is being made voluntarily.

89. Subsection 4 of section 164, casts an obligation

upon Magistrate to certify that a person making a

confessional statement is explained that he is not bound

to make the said statement and that the said statement

may be used as evidence against him and that Magistrate

was satisfied that the confessional statement was

voluntarily made. Magistrate is further obliged to certify

that the confessional statement was read over to the

person making it and admitted by him to be correct and

the same contains full and true account of the statement

made by him.

90. In the case in hand, if vital admissions or


confessions against the accused exist in the application

for discharge, in the opinion of court they should not be

acted upon against accused. The facts and circumstances

of the case suggest that the only purpose of filing those

applications for discharge were to get rid of the

entanglement of the accused persons in the case FIR no.

105/81. There is no intention to make the confessional

statements. Possibly the accused persons were not even

aware of the fact that these applications would be used as

evidence against them. There is no supporting affidavit

attached along with the application. The accused persons

have already stated in their statements u/s 313 Cr.PC

that the applications were drafted by their counsels and

that they signed the same at the instance and advise of

their respective counsel. They further stated that they

were not explained the contents of the applications. This

court has already discussed section 164 of the Code,

which casts a duty upon the Magistrate to satisfy about

the voluntariness of confession and to properly warn the

accused against the use of same and further to certify

that all formalities prior to recording the confessional


statement have been completed and confession was read

over to the person.

91. In the case in hand the record does not suggest that

such formalities were even completed by the lawyer of

accused. There is nothing to suggest that even the lawyer

for accused persons had warned or properly guided them

that statements in their applications for discharge may

be used against them or may amount to confessional

statement or the vital admissions. There is no Oath

Commissioner, or the Magistrate, or the Court involved

in drafting or filing of the applications and to explain the

contents and the consequences of the facts stated in the

applications to accused persons.

92. In the facts and circumstances, this court is of the

opinion that the statements in the applications for

discharge of accused persons, can be considered only for

an information to the court that accused persons have

already been convicted for certain offences by a

competent court at Pakistan. Statements or terminology

which may amount to any confessional statement cannot

be acted upon as neither the same was necessary to be


mentioned nor there was any informed consent of the

accused for mentioning the same. Accused persons were

not aware of the consequences thereof. This point is

accordingly decided in favour of accused persons.

WHETHER PROSECUTION HAS BEEN ABLE

TO SATISFY THE INGREDIENTS OF SECTION 121

OR 121A IPC AGAINST THE EITHER OF

ACCUSED:

93. Even if the facts stated in the application of accused

are taken on their face value and even if for the sake of

arguments it is presumed that accused persons have

admitted the hijacking of Indian Airlines Flight No. IC

423, to Lahore, Pakistan, it is rightly submitted by

learned Sh. Maninder Singh that prosecution has failed

to satisfy the ingredients of section 121/121A IPC beyond

reasonable doubt against either of accused.

94. Accused persons have already been convicted for the

alleged hijacking of the Indian Airplane by the competent

court at Pakistan. Neither any chargesheet has been

filed for those offences against them nor any charge was


framed. No sanction for prosecution of those offences was

granted by the competent government.

95. Learned Sh. Maninder Singh has rightly submitted

that specific role and identification of accused persons

was required from the witnesses qua any act, which could

have been considered as waging war or attempting or

abetment to wage war against the Government of India.

In the case in hand accused persons were not identified

by any witness produced by the prosecution to have done

any such act of waging or attempting or abetting to wage

war against Government of India. PW5 Shewak

Nishchaldas Demble and PW6 Ms. A.Rajni, denied the

identity of accused persons. During testimony of these

witnesses learned Addl. PP specifically pointed out

towards the accused persons alleging that they had

committed the acts of abducting the passengers of the

plane, to Pakistan. Learned Addl. PP also suggested that

accused persons shouted slogans in the plane. Both the

witnesses denied the suggestions of learned Addl.PP.

96. No official document, letter or communication was

collected by the IO to verify the names of the crew


members of flight IC423. IO, in his crossexamination

specifically stated “I got the names of the crew members

from the court file after reading the copy of the judgment

of Special Court, Lahore, Pakistan. No communication or

information pertaining to the names of crew members of

flight IC423 was received from any other source

including Indian Airlines prior to sending notice

Ex.PW8/A and Ex.PW3/A”. Through letters Ex.PW3/A

and Ex.PW8/A, IO did not ask the Indian Airlines to

supply the names of crew members of flight IC423.

Through Ex.PW3/A and Ex.PW8/A, IO had directly asked

for the addresses of PW5 and PW6 and some other

persons. Without verifying that PW5 and PW6 were

present in flight IC423, there was no purpose of seeking

their addresses. There is not even single communication

through which IO had requested the authorities to verify

the crew members. There is no duty roaster, there is no

log book or any other data suggesting that PW5 and PW

6 were crew members at flight IC423. IO PW8

categorically stated “No manifest of the flight IC 423

disclosing the boarding card details and seat number of


the passengers was obtained from Indian Airlines. No log

book of the captain or duty roaster of crew members was

obtained to establish their duty on IC 423 on 29.09.1981.

I did not obtain any record of the said flight from Air

Traffic Control (ATC) on 29.09.1981. I did not obtain any

employment details of the crew members from Indian

Airlines”.

97. In the facts and circumstances, learned Sh.

Maninder Singh has rightly submitted that possibility of

some specific witnesses being chosen by IO to support his

case cannot be ruled out and their testimony cannot be

said to be beyond reasonable doubt.

98. Hence, in the absence of identification and

description of specific role of each accused by witnesses,

this court is of the opinion that prosecution has miserably

failed to prove charge u/s 121 or 121A IPC against either

of accused.

99. In view of the aforesaid discussion, this court is of

the opinion that prosecution has miserably failed to prove

its case against accused persons beyond reasonable

doubt.


100. The accused persons are thus granted benefit of

doubt and are acquitted of the charges levelled against

them.

101. Bail bonds of accused persons furnished during trial

stand cancelled and sureties are discharged.

Endorsement on the documents of sureties, if any, be

cancelled. Original documents of sureties, if any, be

returned against acknowledgment. Articles seized vide

seizure memos and personal search memos of accused

persons be released to them against acknowledgment.

102. File be consigned to record room, be revived as and

when absconding accused persons are apprehended.

Announced in the open courton the 27th day of August, 2018

( Ajay Pandey ) Addl. Sessions Judge 04,

New Delhi District, Patiala House Courts New Delhi


in the court of sh. ajay pandey additional sessions … · tajender pal singh could not be tried in...

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