complint filed before the court of chief metropolitan magistrate against C.B.I.by Davinder Gupta.

N THE COURT OF CHIEF METROPOLITAN MAGISTRATE,  TIS HAZARI COURTS, NEW DELHI

DEVENDER GUPTA

S/O SH SATNARAIN GUPTA

R/O BIHARIGANJ PEHLI GALI KE SAMNE,

AJMER

RAJASTHAN 

[AT PRESENT IN JUDICIAL CUSTODY

IN CENTRAL JAIL AJMER]

                                                                                                                        …..COMPLAINANT/APPLICANT

Versus

1                  SH T RAJAH BALAJI ASP CBI,

CBI OFFICE CHANAKYAPURI

NEW DELHI

INVESTIGATION OFFICER OF CASE, FIR /CBI NO RC5/S/2007/SC-III/CBI/ND

2        ANANT MEDIA PVT LTD

[OWNER OF TEHELKA MAGAZINE ]

Through its Publisher

M-76 [M- BLOCK MARKET]

GREATER KAILASH-2

NEW DELHI-48

2                  SH NEENA TEJPAL SHARMA FOR

ANANT MEDIA PVT LTD

PRINTER AND PUBLISHER OF TEHELKA MAGAZINE

M-76 [M- BLOCK MARKET]

GREATER KAILASH-2

NEW DELHI-48

4        TARUNJEET TEJPAL

EDITOR ( OF TAHELKA MAGAZINE)

M-76 [M- BLOCK MARKET]

GREATER KAILASH-2

NEW DELHI-48

5        UNKNOWN PERSONS

AND

IN THE MATTER OF:

STATE [CBI]  

VERSUS   

SANDEEP DANGE AND ORS

        IN REF:                       

FIR /CBI no RC 5&6 [S]/2007/SCR-III/CBI/ND

regd Under Section 302/307/326 IPC

r/w Sec 13/16/18/19 of UA [P] Act 1967

APPLICATION U/S 345 Cr PC READ WITH SEC 190(1) (c) R/W SEC 156[3] Cr PC

SEEKING INVESTIGATION/ENQUIRY INTO THE UNLAWFUL LEAKAGE AND PUBLICATION, CIRCULATION OF THE ALLEGED CONFESSIONAL STATEMENT OF SH ASEEMANAND RECORDED U/S 164 CrPC  AND FOR APPROPRIATE  LEGAL ACTION AGAINST THE GUILTY PERSONS INCLUDING THE INVESTIGATING OFFICER, PUBLISHERS ETC OF TEHELKA MAGAZINE U/S SEC 166, 204, 228, 295A, 298, 406, 505 I.P.C, AND SEC 13 [1] [c] & [d] OF PC ACT R/W 120-B IPC AND OTHER RELEVANT PROVISIONS OF THE IPC AND ALLIED ACTS, ETC.

MOST RESPECTFULLY SHOWETH:

The humble Complainant/Applicant  most respectfully seeks to urge as under:

1.   That the Complainant/Applicant  is one of the accused in the Case FIR 85/07 PS Ajmer Rajasthan and CBI no RC5/S/2007/SC-III/CBI/ND at Hyderabad and presently lodged in Central Jail at Ajmer, Rajasthan. It is further submitted that  the Complainant/Applicant  is also an accused in other cases where the trial is pending before the Hon'ble courts. It is further submitted that apart from the present Complainant / Applicant,  some more persons were arrested in the aforesaid case prior to the arrest of the present Complainant/Applicant  and their case is also pending before the trial court for its kind consideration.

2.   That this application/complaint is being preferred in relation to unlawful leakage of recording of the confessional statement of the accused Swami Assemanand recorded under section 164 Cr. P.C. by the Hon’ble Court of Sh Deepak Dabas MM Delhi on 18.12.2010 in case of  FIR /CBI No RC5/S/2007/SC-III/CBI/ND.

3.   That the Complainant/Applicant  came to know from other detenues in jail, that Aseemanand’s statement u/s 164 CrPC has been recorded.

4.   That the Complainant/Applicant was shocked to know about the news published in the news papers/Tehelka magazine, that Swami Aseemanand’s confessional statement, which talks about the facts of the present case and roles of several alleged accused and other persons, the leakage of which has prejudiced the rights of the Complainant/Applicant  for a fair trial as well as the interferance in the administration of justice.  True and correct copies of the newspaper cuttings are attached as Ann 1 [Colly].

5.   The chosen extracts from the alleged statement of Aseemanand was published in the newpapers as well as in Tehelka magazine [Issue Dt 31 January 2011 year 2, volume 2, Lucknow]. In fact, Tehelka magazine on page 36 has clearly admitted that it has a copy of the 42 paged statement of the Aseemanand. On page 37 of aforesaid issue, it has shockingly published a photo showing the pages of the Court record under title, “Proceedings for recording of confessional statement of Naba Kumar Sarkar @ Sh Aseemanand” recorded u/s 164 Cr PC in full view, proving that Tehelka magazine Chief Editor/Editor/ reporter have the same in their illegal possession. Page 35 of the Magazine [in red coloured portion] carries the photo in the background of the handwritten confessional statement of the Learned Magistrate. The signatures of the Learned Magistrate are also visible with date, which prima facie proves that the Tehelka magazine has somehow obtained illegally a copy of the said statement. How they received a copy of the Court proceedings/ Court Record needs a thorough investigation/judicial enquiry. The Complainant has every apprehension and even the facts and circumstances clearly point out that the said statement was illegally published in connivance with the aforesaid I.O. and the aforesaid persons of the Tehalka magazine and others for their illegal and pecuniary gain and also with malice. It is further submitted that the aforesaid illegal act was done under a conspiracy hatched by  the aforesaid accused persons. A copy of the said Tehelka Magazine is annexed  as Ann 2.

6.   This shows that the secrecy and sanctity of the judicial proceeding has been breached and the confidentiality and secrecy of the said proceedings blasted, which immediately needs a high level judicial enquiry to find out the real culprit who has insulted the Hon’ble Court and Court proceeding as the might of Judicial System has been marred and the fairness of the judicial system has been holed.

7.   That the entire judicial exercise is required to be circumscribed by the procedure mandated under section 164 Cr P C and Delhi High Court rules.

8.   That the peremptory mandate of the aforesaid provision required the Hon’ble Court recording the statement to ‘forward it to the Magistrate by whom the case is to be tried’. Thus legal access to this solemn proceeding is well regulated.

9.   The Complainant/Applicant was shocked and surprised  to gather that the essence of the procedure required to be followed under section 164 CrPC and Delhi High Court Rules has come to be outraged as access was obviously secured by engaging in wrongs by outreaching the judicial process.

10.         The media coverage indicates a well-defined leakage that is authored with a design to insult the judicial process and investigation.

11.         The leakage of the Court proceedings/ Court record has opened an additional Fora of Media Trial to prejudice the minds of the Hon’ble Court in violation of the rights of the accused in custody.

12.         It has also given a handle to neighboring Country Pakistan to press their improper demands deliberately.

13.         In other trials the Investigating agencies have never released the statements of accused to the Press. This is being done due to undue political pressure, under vote bank policy, and to gain political mileage and defame the innocent Complainant/Applicant  [in JC], which is from the beginning, is interfering in the investigation of the case.

14.         How could Tehelka have access to the statement when the prescribed procedure is that the statement recorded u/s 164 Cr PC should be safely and confidentially forwarded to the Court conducting trial ( so that the said court may act on the same as per the law) and the matter is still under investigation.

15.         That in the present case the publication has not only taken place contrary to the Rules /enactment the same is also a deliberate distortion of the judicial proceedings /judicial process. It is an interruption in judicial work and insult to judicial proceeding.

16.         That such a development amounts to a serious criminal offence u/s 228 IPC.

17.         That it is not out of place to mention here that National Media prominently reported the brief in 2½ pages out of the 42 page confessional statement of Swami Aseemanand which was widely discussed and debated on various news channels.

18.         That the aforesaid Act has not only insulted and interrupted the Court Proceeding but also lowered the dignity of the Hon’ble Court and also besmirched, tainted and defiled it.       

19.         That the Hon’ble Apex Court in the case of State of Haryana Vs. Ch. Bhajan Lal, AIR 1993 SC 1348 has held that:

Contempt by speech or writing may be by scandalizing the court itself, or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard. It is incumbent upon courts of justice to preserve their proceedings from being misrepresented, for prejudicing the mind of the people against persons concerned as parties in causes before the cause is finally heard has pernicious consequences. Speech or writings misrepresenting the proceedings of the court or prejudicing the public for or against a party or involving reflections on parties to a proceedings amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources

It is further submitted that the Various Hon’ble High Courts as well as Hon’ble Supreme court of India have also held that the publication of the statement recorded u/s 164 of the Cr.P.C. before the commencement of the trial, is grossly improper. And proceedings in a court cannot be photographed without the permission of the court. It has also been held that a printer and publisher of an article in a newspaper, which is calculated to influence the mind of not only to the prosecution witnesses in a case but also to the general public and is therefore highly prejudicial to a fair trial, and which is written with the object of prejudicing the public against the merits of the prosecution, is guilty of contempt of the court of a grossly reprehensible character which cannot be overlooked. Further, articles published / in the newspapers clearly show their tendency to interfere with the fair trial of the accused and insult the Court.

It has also been held that “ although it is a cardinal principle of the Indian constitution to permit free discussion and although a free press is essential to the liberty of the citizen, the farmers of the constitution did not confer any special privileges on the press. Freedom of the press is a right of the every citizen of the Republic. The courts cannot authorize trials by newspapers and cannot endanger the rights of the accused persons before the courts. The power of the courts to punish any publication calculated to obstruct and pervert the due course of and justice and law is not restricted by the constitutional guarantee of liberty of the press, for liberty of the press is subordinate to the independence of the judiciary and the proper administration of the justice”.

Further, “the law should not be seen to sit limply, while those who defy it go free and those who seek its protection lose hope”  .

The Complainant/Applicant  craves leave to produce the aforesaid judgments as relied upon at the time of hearing.

 

20.         That in consonance with the judgment of Hon’ble Supreme Court in the aforesaid case, the leakage of the aforesaid statement clearly show that this leakage was deliberate, intentional, insidious and malicious with the sinister motive to insult and interrupt the Judicial Proceeding and before the cause is finally heard and hence has spiteful and pernicious consequences.

21.         That such an Act aimed at influencing the result of a pending trial not only has the potential to interfere with the due course of justice but is also a criminal wrong and amounts to violation of legally prescribed procedure and is an offence u/s 166 IPC, 228 IPC, for which the Investigating Officer is also liable.

22.         That in the civil society governed by rule of law nobody can be allowed to interfere with, obstruct or influence the course of justice in a manner so as to insult the Court and interfere in Judicial Proceeding, scandalize any statement of the accused recorded under section 164 Cr. P.C.  Using it as a sharp edged weapon to malign the reputation of Complainant/Applicant  [as he is an accused in this case] and others --- without any corroborative evidence without even commencement of the trial.

23.         That the aforesaid judgment of the Hon’ble Supreme Court of India clearly states that it is incumbent upon courts of justice to preserve their proceedings from being misrepresented or from prejudicing the mind of the public at large against the parties concerned before the cause is finally heard.    

24.         That the alleged statement u/s 164 Cr PC has to be sealed and forwarded to Court conducting trial. How and in what circumstances the Tehelka magazine has got a copy of the statement is a mystery. Somebody has violated the Law. It is either the Investigating Officer, who has custody of the case file or someone else which has to be determined and as the interference in Court Records/Court Proceedings is a serious matter and causer of the insult to the Court proceedings/Court Record has to be brought to book.

25.         It is surprising that when Swami Aseemanand was in Hyderabad for about 2 months, such alleged confessional statement was not recorded there . But under mysterious circumstances, the statement was suddenly got recorded before Sh Deepak Dabas MM Delhi, where even the trial was not even going on. Mysteriously he was brought to Delhi without following the due procedure with a malafide intention to harm the rights of the complainant.

26.         That the statement ought to have been sealed and handed over to the IO/Staff. Thereafter illegally the statement was photocopied/scanned by accused herein. Later the accused herein got the Court record/ Court proceedings published in various newspapers, magazines and also got it aired on TV Channels with malice and for their illegal gain and motive. There was no permission of the Court to do so. As such the confessional statement was dishonestly and fraudulently misappropriated and converted to its own dirty use by persons to whom it was entrusted. That as such, an offence u/s 13[1][c] of the PC Act is made out. Since the copies of the confessional statement after being stolen, have been circulated and distributed, and misappropriated for pecuniary advantage and obtaining valuable things, as such an offence under section 13[1][d] of PC act is also made out against all the accused jointly and severally. The publication and circulation of aforesaid statement by the Tehelka magazine was done not only to create enmity between the classes, pollute the atmosphere but it was also done to earn illegally (to procure pecuniary gain). It is submitted that by doing this act the Tehelka magazine owners must have earned a lot which they are not entitled to legally. Needless to state here in that the aforesaid investigating officer was also taking part in that illegal act and the sharing of illegally earned money.

27.         Further since the accused had dishonestly misappropriated and converted to their own use the said confessional statement, and they jointly and dishonestly used the confessional statement in violation of the directions of law, having misused the said statement by misappropriation,  a prima facie offence u/s 406 IPC is also made out against the persons accused herein.

28.         Further the document has been destroyed as such an offence u/s 204 IPC against public Justice is also made out against the accused persons. The said confessional statement is a document which could be produced as evidence in a court of law. The said confessional statement was recorded and is proceeding before a court and the said leakage has prevented from being used as evidence, having been tampered.

29.         Prima facie offences u/s 295A, 298 IPC are also made out against the accused herein. The accused persons together with deliberate and malicious intention of outraging the religious feelings of a particular class of citizens of India have insulted and attempted to insult the religious beliefs of a particular class. Several persons who were detained earlier, consequent to the leakage of the, have sought bail solely on the ground of leaked confessional statement. The said confessional statement has been leaked with deliberate intention of wounding the religious feelings of certain persons.

30.         Prima facie offences u/s 505 IPC are also made out against the accused herein. The accused persons have published and got circulated the said confessional statement with intent to cause and have picked up selective extracts from the confessional statement in a design to create fear and alarm the public and with an intent to incite a particular class. The said illegal leakage of confessional   statement with oblique headlines creates and promotes and was leaked with an intention to create and promote feelings of enmity, hatred or ill- will between various groups, specifically when the matter is pending trial in the courts of law.

The aforesaid facts clearly show that the accused persons have hatched a conspiracy for their illegal and pecuniary gain to commit the aforementioned offences.

31.         That an offence under section 124 A of the Indian penal code has also been committed by the accused jointly and severally. As such, by the leakage of the confessional statement and the subsequent publishing of the same, by circulating the same with sensational headlines, the accused persons have tried to show that investigating agency and the government was against a particular community in case of bomb blasts and as such their arrest was made because of their religious faith, as such accused brought the feeling of contempt / hatred and dissatisfaction towards the government established by law by distributing, publishing, writing such articles with sensational headlines. All this has been done with an intention to incite people to create disorder and disturbance and promote enmity between different groups on grounds of religion and community. The accused have jointly and severally brought into hatred and have excited dissatisfaction towards the government, established by law in India and hence are liable to be prosecuted and tried for this offence.

32.         That the accused persons have jointly and jointly and severally, have also committed an offence under Section 378 IPC, [Punishable u/s 379 IPC] committing theft of the property / alleged confessional statement of Swami Aseemanand. The accused persons have dishonestly taken, without the consent of and out of the possession of the lawful Custodian of the confessional statement and have moved that confessional statement in order to such dishonest and illegal taking and hence have committed theft of the confessional statement.

33.         All the above mentioned offences have been committed as a part of larger criminal conspiracy by all accused persons with a common intention to commit such offences and hence all are liable under section 120 B IPC R/W 34 IPC also.

34.         Thus it is important for this Hon’ble Court to direct an inquiry to investigate as to who is the author, Designor, Executor of the aforesaid crimes and his malicious intent for committing such a crime as it graduates to a serious criminal wrong.

35.         That the accused persons herein reside and conduct business in Delhi, aforesaid incident and publication was done from Delhi within the jurisdiction of this Hon’ble Court, Hence the jurisdiction.

PRAYER

It is most respectfully prayed to this Hon’ble Court that:

1.            This Hon’ble Court may pleased to take cognizance of the offences as emerge from the present complaint and/or

2.            Direction be given to the Police to register a criminal case/FIR against all the accused persons, including Investigating officer, and they may be tried and proceeded against and punished as per the provisions of law.

3.            direct a thorough and proper  Enquiry to investigate into the aforesaid leakage of the confessional statement under section 164 Cr. P.C. of Swami Aseemanand recorded by Hon’ble Court on 18.12.2010 and illegal publication of the same and/or

4.            Pass any other order(s) as this Hon’ble Court may deem fit, just and proper in the facts and circumstances of the case and in the interest of      justice.

Complainant/Applicant

[In Judicial Custody]

New Delhi

Date                         Through Counsel