JUDGEMENT
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(1.)Leave Granted
(2.)The following two important questions of law which are likely to arise more often than not before the courts of competent jurisdiction fall for consideration of this Court in the present appeal :
Question No.1 : Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short, 'the Code'), the Trial Court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a Court If so, to what effect
Question No.2 : Whether the Central Bureau of Investigation (for short 'the CBI') is empowered to conduct 'fresh'/'re- investigation' when the cognizance has already been taken by the Court of competent jurisdiction on the basis of a police report under Section 173 of the Code
Facts :-
(3.)Irshad Ali @ Deepak, Respondent No.1, in the present appeal was working as an informer of the Special Cell of Delhi Police in the year 2000. He was also working in a similar capacity for Intelligence Bureau. Primarily, his profession and means of earning his livelihood was working as a rickshaw puller. On 11th December, 2005, it is stated that he had a heated conversation with the Intelligence Bureau officials for whom he was working. It was demanded of him that he should join a militant camp in Jammu & Kashmir in order to give information with respect their activities to the Intelligence Bureau. However, the said respondent refused to do the job and consequently claims that he has been falsely implicated in the present case. In fact, on 12th December, 2005, a report was lodged regarding disappearance of respondent no.2 by his family members at Police Station, Bhajanpura, Delhi. Not only this, the brother of the respondent no.2 also sent a telegram to the Prime Minister, Home Minister and Police Commissioner on 7th and 10th January, 2006, but to no avail. On 9th February, 2006, a report was published in the Hindustan Times newspaper, Delhi Edition, through SHO, Police Station, Bhajanpura, Delhi with the photograph of respondent no.2 seeking help of the general public in tracing him. On that very evening, it is stated that the Special Cell of the Delhi Police falsely implicated both the respondents in a case, FIR No. 10/2006, under Sections 4 and 5 of the Explosive Substances Act and under Section 120B, 121 and 122 of the Indian Penal Code, 1860 (for short 'IPC') read with Section 25 of the Arms Act. Both the respondents were described as terrorists. In the entire record, it was not stated that the respondents were working as informers of these agencies. At this stage, it will be pertinent to refer to the FIR that was registered against the accused persons, relevant part of which can usefully be extracted herein: -
"To, the Duty Officer, PS Special Cell, Lodhi Colony, New Delhi. During the 3rd week of January, 2006 information was received through Central Intelligence Agency that militant of Kashmir based Organisation has set up a base in Delhi. One Irshad Ali @ Deepak is frequently visiting Kashmir to get arms, ammuniation and explosives or the instructions from their Kashmir based Commanders. He is also visiting different parts of the country to spread the network of the militant organizations. As per the directions of senior officers, a team under the supervision of Sh. Sanjeev Kumar, ACP Special Cell led by Inspector Mohan Chand Sharma was formed to develop this information and identify Irshad and 'his whereabouts in Sultanpuri area, Secret sources were deployed. During the course of developments of information, it came to knowledge that above noted Irshad Ali @ Deepak is resident of Inder Enclave, Phase-II, Sultanpuri, Delhi. It also came to notice that one Mohd. Muarif Qamar @ Nawab r/o Bhajanpura, Delhi is also associated with the militant organization. During the development of this information, it was revealed that both Irshad Ali and nawab had gone to J&K on the directions of their handlers to receive a consignment of arms and explosives. Today on February 09, 2006 at about 4 PM, one of these sources telephonically informed SI Vinay Tyagi in the office of Special Cell, Lodhi Colony that Irshad A.li(sic) @ Deepak along with his associate Mohd. Muarif Qamar @ Nawab R/o Bajanpura, Delhi is coming from Jammu in JK SRTC Bus No. JK-02 Y- 0299 with a consignment of explosives, arms & ammunition and will alight at Mukarba Chowk, near Karnal Bypass in the evening.
This information was recorded in Daily Dairy (sic) and discussed with senior officers. A team consisting of Insp. Sanjay Dutt, myself, SI Subhash Vats, SI Rahul, SI Ravinder Kumar Tyagi, S.I Dalip Kumar, SI Pawan Kumar, ASI Anil Tyagi, ASI Shahjahan, HC Krishna Ram, HC Nagender, HC Rustam, Ct. Rajiv and Ct. Rajender was constituted to act upon this information. Thereafter the team members in 3 private vehicles and 2 two wheelers armed with official weapons as per Malkhana register, departed from the office of Special Cell, Lodhi Colony at about 4.30 PM and reached G.T. Karnal Depot at 5.30 PM where Insp. Sanjay Dutt met the informer. Insp. Sanjay Dutt asked 6/7 persons to join the police party after disclosing them about the information. All of them went away citing genuine excuses. The police party was briefed by Insp. Sanjay Dutt and was deployed around Mukarba Chowk, Interstate Bus Stand. At about 7.35 PM, above mentioned Irshad and Nawab were identified by the informer when they had alighted from the bus No.JK-02 Y-0299 coming from Jammu. Both were scene (sic) carrying blue and green-red check coloured airbags each on their right shoulders. In the meantime, team posted near by was alerted and when they were about to cross the outer Ring Road to go towards Rohini side, were overpowered. Cursory search of the above-mentioned persons was conducted and from the right dhub of the pant worn by Mohd Muarif Qamar @ Nawab mentioned above, apprehended by me with the help of Dalip Kumar, one Chinese pistol star Mark.30 calibre along with 8 live cartridges in its magazine was recovered. On measuring the length of the barrel and body 19.4 cms, magazine 10.8 cms, butt 8.9 cms and diagonal length of pistol is 21.5 cms Number 19396 is engraved on the butt of the pistol. On checking the blue coloured bag recovered from the possession of Nawab, one white envelope containing non- electronic detonators, one ABCD green coloured Timer, one AB cream coloured Timer was also recovered which was concealed beneath the layers of clothes including one light blue coloured shirt and dark gray coloured pant in the bag, and from the red green coloured bag recovered from the possession of Irshad Ali mentioned above, apprehended by SI Ravinder Tyagi with the help of Ct. Rajender Kumar, one Chinese pistol star Mark .30 calibre along with 8 live cartridges in its magazine was recovered. On measuring the length of the barrel and body 19.4 cms, magazine 10.8 cms, butt 8.9 cms and diagonal length of pistol is 21.5 cms, Number 33030545 is engraved on the barrel and body of the pistol. One white polythene containing a mixture of black and white oil based explosive material kept in a black polythene and was also concealed beneath the layers of clothes. On weighing the explosive was found to be 2 kg. Out of this two samples of 10 gms each were taken out in white plastic small jars. The remaining recovered explosive kept back in black polythene, pulinda prepared and sealed with the seal of 'VKT'. Sample explosive were marked as S1 and S2 and sealed with the seal of 'VKT'. The ABCD timer and AB Timer were kept in a plastic jar and sealed with the seal of 'VKT' marked as 'T' and 3 non electric detonators along with envelope were kept in a transparent plastic jar with the help of cotton and sealed with the seal of "VKT' marked as 'D'. The recovered Star Mark pistol from the possession of accused Mohd. Muarif @ Nawab and Irshad ali were kept in separate pulindas and marked as M&I respectively and sealed with the seal of "VKT'. The blue coloured airbag and clothes recovered from the possession of accused Mohd. Muarif @ Nawab and kept in a cloth pulinda and sealed with the seal of 'T' and the green-red colour check bag recovered from the possession of accused Irshad Ali containing clothes was kept in a pulinda sealed with the seal of 'VKT' and CFSL forms were filled-up and sealed with the seal of "VKT". Seal after use was handed over to SI Ravinder Kumar Tyagi. During their interrogation, both the accused Irshad Ali @ Deepak S/o Mohd. Yunus Ali R/o F-247-A, Inder Enclave, Phase-II, Sultnpuri, Delhi aged 30 years and Mohd. Muarif Qamar @ Nawab R/o Vill. Deora Bandhoh, P.O.-Jogiara, PS-Jale, Distt.- Darbhanga, Bihar, stated that they brought the recovered consignment of arms, ammunitions and explosives from J&K from their Commanders in J&K and was to be kept in safe custody and was to be used for terrorist activity in Delhi on the directions of their handlers in J&K. Militant Irshad Ali and Nawab above mentioned have kept in their possession explosives, ABCD Timer, AB Timer, Non Electronic detonators and arms and ammunition which were to be used for the purpose of terrorist activities in order to overawe the sovereignty, integrity and unity of India in order to commit terrorist and disruptive activities and there by committing offences punishable u/s 121/121A/122/123/120B IPC r/w 4/5 Explosive Substance Act and 25 Arms Act. Rukka is being sent to you for registration of the case through SI Ravinder Kumar Tyagi. Case be registered and further investigation be handed over to SI Rajpal Dabas, D-882, PIS No. 28860555 who has already reached at the spot as per the direction of senior Officers who had already been informed about the apprehension and recovery of explosives, arms and ammunition from their possession. Date and time of offence. February 09, 2006 at 7.35 PM, place of occurrence; Outer ring road, Mukarba Chowk, near Inter State bus stand, Delhi. Date and time of sending the rukka: 09.02.2006 at 10.15 PM. Sd English SI Vinay Tyagi No. D- 1334, PIS No. 28862091, Special Cell/NDR/OC, Lodhi Colony, New Delhi dated 09.02.2006."