Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 584 (PNJ)

Abdul Latif v. Central Bureau of Investigation

2003-04-24

N.K.SODHI, N.K.SUD

body2003
JUDGMENT N.K. Sodhi, J. - Indian Airlines Flight IC-814 from Kathmandu to Delhi was hijacked on 24.12.1999 when the aircraft was within the Indian air space under the control of Air Traffic Control, Varanasi (U.P.). The aircraft had taken off from Tribhuwan Airport at Kathmandu with 179 passengers and 11 crew members. At the instance of the hijackers the aircraft finally landed at Kandahar International Airport in Afghanistan at about 0830 hrs. on 25.12.1999. The aircraft with the crew members and the passengers were illegally detained there under threat and terror by the hijackers till 31.12.1999 in the aircraft itself. During this period, one passenger was killed by the hijackers and another seriously injured. The hijackers demanded the release of 36 militants lodged in Indian jails, the dead body of militant Sajjad Afghani and 20 crore US Dollars. After prolonged negotiations the hijackers released the hostages and the aircraft only after the Indian Government released three militants lodged in Indian jails, namely, Maulana Massood Azhar, Umar Sheikh and Mohd. Zargar. The hijackers escaped from the aircraft and thereafter the passengers and the crew members were brought to India. 2. Case FIR 145 dated 29.12.1999 was registered at Police Station Raja Sansi, Amritsar which was later transferred to the Central Bureau of Investigation (CBI) for investigation and accordingly a case was registered by the CBI on 11.1.2000 and the matter was investigated. During the course of investigations, Abdul Latif petitioner was arrested by the Mumbai Police on 30.12.1999. He is alleged to have disclosed all the facts relating to the hijacking of the aircraft, the conspiracy behind it and the details of his associates. The other petitioners, namely, Bhupal Maan Damai @ Yusuf Nepali and Dalip Kumar Bhujel were also arrested and they are said to have made some confessional statements before the Magistrate. After completion of the investigation, the CBI filed a charge-sheet on 20.6.2000 against Abdul Latif petitioner and nine others including the other two petitioners in the designated court under the Anti-Hijacking Act at Patiala for the commission of offences under Section 120-B read with Sections 363, 342, 307, 302, 323, 326 and 506 Indian Penal Code and Sections 4 and 5 of the Anti-Hijacking Act, 1982 and sections 25 and 27 of the Arms Act. The petitioners and others are facing trial in the designated court at Patiala. The petitioners and others are facing trial in the designated court at Patiala. Seven accused who are alleged to be Pakistani nationals were declared absconders and evidence against them is being recorded under Section 299 of the Code of Criminal Procedure (for short the Code). The three petitioners before us are lodged in Central Jail, Patiala and were being produced in court on different dates when the case was fixed before the designated court. During the course of the trial the CBI made a request to the State Government that in view of the security risk involved, petitioner Abdul Latif who is one of the main accused in the case be not removed from Central Jail, Patiala and that an order in this regard be passed under Section 268 of the Code. By order dated 12.11.2001 the State Government acceded to the request made by the CBI and in exercise of its powers under Section 268 of the Code directed that under-trial Abdul Latif petitioner shall not be removed from the Central Jail, Patiala. A copy of this order was forwarded to the Additional Director General of Prisons, Punjab for information and necessary action. As a sequel to this order, the State Government made a request to this court that the designated Judge at Patiala be directed to hold the sittings of the court in the Central Jail, Patiala in connection with the trial of the case. On receipt of this request, this court on the administrative side passed the following order on 20.12.2001 :- "For the purpose of trial of the case in question the Sessions Judge may hold the sittings of the court in the Central Jail, Patiala. Sd/- (Bakhshish Kaur) Judge." This order was communicated to the Designated Court at Patiala as per endorsement dated 8.1.2002. Since the necessary infrastructure for holding the trial in the jail premises was not available, the jail authorities approached the State Government for funds to provide for the same. This process took some time and in the meantime the trial continued in the court premises where the petitioners were being produced in custody. It appears that the facilities for holding the trial in the jail premises were completed in April, 2002, and, therefore, the trial court by order dated 23.4.2002 while adjourning the case to 22.5.2002 directed that further proceedings would be held in the jail. It appears that the facilities for holding the trial in the jail premises were completed in April, 2002, and, therefore, the trial court by order dated 23.4.2002 while adjourning the case to 22.5.2002 directed that further proceedings would be held in the jail. It may be mentioned here that for the speedy disposal of the case this court by order dated 11.3.2002 directed the trial court to hold the trial regularly for one week in a month as only 10 witnesses had been examined till then out of the total list of 315 prosecution witnesses. The petitioners then filed some applications before the trial court objecting to the trial being held in the Central Jail, Patiala on the ground that they had no prior notice/information of the trial being held there and that the same could not be held in the jail without their consent as required by section 9 of the Code. It is alleged that no oral or written order was ever communicated to them and, therefore, the trial court not continue in the jail premises. The trial court by order dated 29.5.2002 dismissed the applications holding that since the trial of the case was being held in the camp court in the Central Jail in compliance with the orders passed by this court, it was not necessary to obtain the consent of the petitioners or their counsel and not even of the Public Prosecutor. The trial court observed that the petitioners and the counsel representing them were making efforts to delay the disposal of the case whereas this court had ordered for the expeditious trial of the case. It is against this order of the trial court that the present petition has been filed under Article 226 of the Constitution. 3. The CBI in its reply has controverted the averments made in the writ petition and has prayed for its dismissal. 4. We have heard the learned counsel for the parties. Shri Navkiran Singh, learned counsel for the petitioners has raised the following four contentions in support of the writ petition challenging the continuance of the trial in the Central Jail at Patiala :- 1. 4. We have heard the learned counsel for the parties. Shri Navkiran Singh, learned counsel for the petitioners has raised the following four contentions in support of the writ petition challenging the continuance of the trial in the Central Jail at Patiala :- 1. That the court of Session can hold its sitting only at a place notified by the High Court and at no other place and since the Central jail at Patiala has not been notified by the High Court, the trial could not be held there. It is urged that the trial in the jail premises could continue only with the consent of the petitioners and since the petitioners had not given their consent the trial could not proceed. 2. That the State Government did not have enough material to warrant the passing of an order under Section 268 of the Code directing that petitioner No. 1 shall not be removed from the Central Jail, Patiala. 3. That the court proceedings are being recorded in Punjabi/English whereas none of the accused understands these languages and, therefore, the trial stands vitiated. 4. That the court is proceeding in a biased manner and had made some interpolations in its judicial orders inasmuch as it was never announced in court on 23.4.2002 that the proceedings thereafter would be conducted in the jail premises whereas a line to this effect has been incorporated in the order by hand subsequently. 5. We shall first deal with the contentions at serial Nos. 2, 3 and 4 before dealing with contention No. 1 which is the primary grievance of the petitioners. Re : Contention 2 : 6. It is not in dispute that the State Government had the jurisdiction to pass the order dated 12.11.2001 under Section 268 of the Code directing that under-trial Abdul Latif (petitioner No. 1 before us) shall not be removed from the Central Jail, Patiala where he is presently lodged. What is challenged before us is that the State Government did not have sufficient material before it to warrant the passing of such an order. We directed the State Government and the High Court to produce the relevant file before us for our perusal. What is challenged before us is that the State Government did not have sufficient material before it to warrant the passing of such an order. We directed the State Government and the High Court to produce the relevant file before us for our perusal. The relevant record was produced by the State Government in court in two sealed covers and also the relevant file was produced by the High Court which we have perused and are satisfied that the request of the CBI to the State Government for passing an order under Section 268 of the Code was well founded. The apprehensions expressed by the CBI in its letter dated 29.10.2001 are well reasoned and the State Government was justified in passing such an order. We are refraining from narrating the reasons mentioned in the CBIs letter in public interest as they relates to sensitive matters pertaining to the security of the State. We may mention that on an earlier occasion the petitioners wanted the relevant material to be supplied to them and the State Government moved an application under Sections 123 and 124 of the Indian Evidence Act claiming privilege against the disclosure of the correspondence exchanged between the CBI and the State Government which led to the passing of the order under Section 268 of the Code and that claim to privilege was upheld by this court by order dated September 30, 2002. We are satisfied that the order under Section 268 of the Code was validly made on the basis of the material available with the State Government and that it took into consideration matters referred to in sub-section (2) of Section 268 of the Code. There is, thus, no merit in this contention and we reject the same unhesitatingly. Re : Contention 3 : 7. The learned counsel for the petitioners argued that the court proceedings were being recorded in Punjabi and English simultaneously and that the petitioners who do not understand either of these languages are not aware as to what is transpiring in court and that their fundamental right to cross- examine the witnesses had been lost and, therefore, the proceedings before the trial court be quashed. We are unable to accept this contention. It may be mentioned at the outset that at no stage of the proceedings before the trial court did the petitioners raised this plea before the Designated Judge. We are unable to accept this contention. It may be mentioned at the outset that at no stage of the proceedings before the trial court did the petitioners raised this plea before the Designated Judge. Not only this, as pointed out by the CBI in its reply, the questions are put to the witnesses, in Hindi and they are translated by the learned trial Judge in English as well as in Gurmukhi and then recorded. This was the procedure which was being followed even when the trial was being held in the court premises and we find nothing wrong with this procedure. If the petitioners or their counsel had at any point of time raised this issue, we would have had the benefit of the views of the trial Judge as well. Shri Navkiran Singh, learned counsel for the petitioners has fairly conceded that this objection had never been raised before the trial court. The Designated Judge had even offered to provide the petitioners with the services of an advocate at State expense but this offer was spurned by them who have been refusing to cross- examine the witnesses when they appear in court. We are, therefore, satisfied that this objection is only an afterthought and is being raised only with a view to confuse the whole issue as it is not even relevant for the purpose of deciding whether the trial court validly be held in jail premises. This contention, too, stands rejected. Re : Contention 4 : 8. It is also contended by the learned counsel for the petitioners that the trial Judge is proceeding in a biased manner and has been making interpolations in his judicial orders. It is pointed out that on the conclusion of the court proceedings on 23.4.2003 the learned trial Judge did not announce that further proceedings would be held in the jail premises whereas a line to this effect was incorporated in the order by the learned trial judge in his own handwriting without informing the petitioners or their counsel and without announcing the same in the open court. Shri Rajan Gupta, learned counsel appearing for the CBI strenuously refuted this contention which had been raised for the first time in the replication only and not in the body of the writ petition. The respondents, therefore, did not have the opportunity to file a formal reply to this averment. Shri Rajan Gupta, learned counsel appearing for the CBI strenuously refuted this contention which had been raised for the first time in the replication only and not in the body of the writ petition. The respondents, therefore, did not have the opportunity to file a formal reply to this averment. Be that as it may, we are not inclined to accept this contention. Merely because a line was added at the end of the order passed on 23.4.2002 does not lead to the inference that the same was added subsequent to the pronouncement of the order. It is not uncommon that the stenographers while taking dictation of the order or while typing the same, omit a line or two which sometimes the judicial officer has to add with his own hand. The plea that the petitioners and their counsel were not aware of the order passed on 23.4.2002 that further proceedings in the case would be held in the jail premises was raised before the trial Judge as well and he rejected the same. His observations in paragraph 31 of the impugned order are significant in this regard and read as under :- "31. On my monthly visit to Central Jail, Patiala on 20.4.2002, I found that the court room was ready and therefore, on 23.4.2002, I had pronounced the order in the open court that the trial of this case be held in the Camp Court in the Central Jail, Patiala from 22.5.2002 onwards in compliance with the orders passed by the Honble High Court." Keeping in view the fact that the petitioners and their counsel have not been cooperating with the trial court and in view of the categoric finding recorded by the court itself that it had pronounced in the open court that further proceedings would be conducted in the jail premises from 22.5.2002 onwards, there is no force in this contention raised on behalf of the petitioners. The learned trial Judge is the best person to say as to what happened before him and according to him the order was pronounced in Court on 23.4.2002 that further proceedings in the case would be held in the Central Jail at Patiala. The learned trial Judge is the best person to say as to what happened before him and according to him the order was pronounced in Court on 23.4.2002 that further proceedings in the case would be held in the Central Jail at Patiala. Learned counsel for the petitioners has also drawn our attention to some photocopies of some other orders to show that the trial Judge was in the habit of making interpolations in his orders in the absence of the parties without informing them. We have perused photocopies of some of the orders passed by the trial Judge and find that the so called interpolations are nothing but minor corrections made in the orders after they were typed and that these are no consequence. Mr. Rajan Gupta, learned counsel for the CBI has pointed out that the petitioners or their counsel in connivance with some court officials managed to procure photocopies of the orders before they were corrected and signed by the officer and that the petitioners are now trying to make mileage out of it. He also brought to our notice that some inquiry has been initiated to bring the erring officials to book. Since the corrections made by the trial Judge are not of any significance and in view of the fact that no interpolation has been proved in the order dated 23.4.2002, we reject this contention as well. 9. We may now deal with contention No. 1 which is the main grievance of the petitioners. As already noticed above, the contention of the petitioners is that the court of session can hold its sittings only at a place notified by the High Court and since the Central Jail at Patiala has not been notified, the trial could not be held there. As already noticed above, the contention of the petitioners is that the court of session can hold its sittings only at a place notified by the High Court and since the Central Jail at Patiala has not been notified, the trial could not be held there. In order to appreciate this contention, it is necessary to refer to the provisions of sub-section (6) of Section 9 of the Code which read as under :- "(6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein." A reading of the aforesaid provision leaves no room for doubt that sub-section (6) of Section 9 of the Code consists of two parts. According to the first part a court of session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify. The second part of this provision enables the court of session of hold its sitting at any other place in the sessions division even if it has not been notified by the High Court if it is of the opinion that it will tend to the general convenience of the parties and witnesses but this can be done only with the consent of the prosecution and the accused. It is common case of the parties that in the instant case it is not the Designated Court which had taken a decision to hold its sittings in the Central Jail at Patiala but it had been done under the orders of this Court as conveyed to him as per endorsement dated 8.1.2002, as already referred to above. Thus, the controversy now raised by the petitioners will have to be resolved in the light of the language used in the first part of the aforesaid provision. As already observed, the court of session ordinarily holds its sittings at such place or places as the High Court may notify. Thus, the controversy now raised by the petitioners will have to be resolved in the light of the language used in the first part of the aforesaid provision. As already observed, the court of session ordinarily holds its sittings at such place or places as the High Court may notify. The word "ordinarily" means habitually and not casually and it cannot obviously mean "always". The plain and popular meaning of the word "ordinarily" is usually, normally and not exceptionally. It means "in the large majority of cases but not invariably". The expression "ordinarily" tones down the force of the word "shall" as used in sub-section (6) of Section 9 of the Code. It indicates that the provision is a general one but there could be exceptions to it. It is, thus, clear that in the normal course, a court of session will hold its sitting at a place(s) notified by the High Court but there can be extraordinary circumstances when it may hold its sitting even at a place not so notified. If the interpretation sought to be placed by the learned counsel for the petitioners were to be accepted that the trial court be held only at a place notified by the High Court then the word "ordinarily" used in sub-section (6) of Section 9 of the Code becomes redundant and it would mean that the trial can be held only at a place notified by the High Court which is not the true import of the provision. It necessarily follows that in special circumstances the court of session can hold the trial at a place other than the one notified by the High Court and merely because it has held the trial at such a place the same would not be vitiated. In such a case where the sitting of the court of session is at a place other than the one notified by the High Court, the question that would arise for consideration is whether the court of session in the circumstances of the case was justified in holding its sitting at a place other than the one notified by the High Court. This question has to be answered in the affirmative in the circumstances of the present case. This question has to be answered in the affirmative in the circumstances of the present case. As already observed, it was on the request made by the CBI that the State Government exercising its powers under Section 268 of the Code directed the jail authorities to remove Abdul Latif petitioner No. 1 from the Central Jail, Patiala and the validity of that order has been upheld by us. In view of that order this court directed the Designated Court to hold its sittings in the Central Jail at Patiala so that it does not become necessary for petitioner No. 1 to be removed from the jail premises. Petitioner No. 1 and the other petitioners are being tried jointly along with others who are absconding. Since the petitioners are being tried jointly and petitioner No. 1 is not to be removed from the jail premises, the only reasonable course open is to hold the trial in the jail premises. It has not even been suggested by the learned counsel for the petitioners that petitioner No. 1 should be tried separately as that would not be in public interest. In this view of the matter, we are satisfied that the present case falls within the exceptions as envisaged in the first part of sub-section (6) of Section 9 of the Code and that the Designated Judge at Patiala was justified in holding his sittings in the Central Jail at Patiala even though the same has not been notified by the High Court. The proceedings do not suffer from any error of law so as to warrant our interference. 10. During the course of arguments, we put it to be the learned counsel for the petitioners as to what prejudice is caused to the petitioners if the trial is held in Central Jail at Patiala. The prejudice pointed out by the learned counsel was that the counsel representing the petitioners at Patiala remain busy in the courts with their miscellaneous work till about 11.30 AM to 12.00 noon and, therefore, they cannot appear before the trial Judge in the Central Jail which is at some distance from the District Courts. The prejudice pointed out by the learned counsel was that the counsel representing the petitioners at Patiala remain busy in the courts with their miscellaneous work till about 11.30 AM to 12.00 noon and, therefore, they cannot appear before the trial Judge in the Central Jail which is at some distance from the District Courts. On the suggestion of the learned counsel for the petitioners, we passed an interim order on 13.3.2003 and directed the designated Judge to start with the court proceedings in the Central Jail at 12.00 noon sharp every day of the week during which the trial is conducted. Shri Navkiran Singh, learned counsel, on receipt of instructions from the counsel representing the accused in the trial court, stated that they will appear in the court and extended full co- operation for the early conclusion of the trial. We are informed that the trial Judge commences the proceedings in the Central Jail at 12.00 noon by which time counsel for the petitioners are free from their miscellaneous work in the courts and are appearing before the Designated Judge in the Central Jain. There should, thus, be no grievance of the petitioners left in this regard. This arrangement will continue notwithstanding the dismissal of this writ petition. 11. Before parting, we may notice a contention raised by Shri Rajan Gupta, learned counsel for the CBI. It was urged that the order of the High Court dated 20.12.2001 requiring the Sessions Judge to hold the sittings of the court in the Central Jail, Patiala, as communicated on 8.1.2002, amounted to notifying the Central Jain, Patiala, as one of the places where the trial court be held and that it would not be necessary to notify the same in the Official Gazette of the State Government. Since we have held that the sittings of the court session can be held even at a place not notified by the High Court, it is not necessary for us to examine the merits of this contention. 12. In the result, we find no merit in the writ petition and the same stands dismissed leaving the parties to bear their own costs. 13. The record produced by the State Government has been returned in a sealed cover through Mr. Ashok Bhardwarj, Assistant Advocate General, Punjab. Petition dismissed.