The Delhi High Court has dismissed a plea by real estate baron Sushil Ansal, who is facing prosecution in case of tampering with evidence in the main Uphaar cinema fire tragedy matter, seeking to cross examine the investigating officer following change of counsel representing him.
The high court said a mere change of counsel would not suffice to recall the witness to put certain suggestion in the manner the new advocate desires.
Mr Ansal’s plea is devoid of merits, it said.
“The petitioner (Mr Ansal) had engaged earlier counsel of his choice. He made a decision not to cross-examine, not one but 18 witnesses, probably, because the petitioner is facing charge of conspiracy only, and hence such decision viz not to cross-examine 18 witnesses cannot be said to an inadvertent act but may be a part of his strategy,” Justice Yogesh Khanna said.
Since a considerable delay has taken place, the plight of victims cannot be ignored, the court said.
The evidence tampering case is at the stage of final arguments before the trial court.
The high court said it needs to see the intention to file such an application under section 311 (power to summon material witness or examine a person present) of the CrPC at a “deeply belated stage”.
Mr Ansal’s counsel submitted before the high court that the trial court has disposed of his plea under section 311 of the CrPC and said he was seeking one more opportunity to cross examine the investigating officer.
The plea was opposed by Delhi Police which said the trial is at its final stage as the prosecution and defence evidence has already been closed and the lower court is presently hearing final arguments on behalf of the accused.
The Association of Victims of Uphaar Tragedy (AVUT) also opposed the plea saying it was a deliberate attempt to delay the trial and the application was completely frivolous and vague.
The high court, in its order, discussed some of the relevant dates of the case including that the prosecution evidence was closed on April 6 and defence evidence was concluded on August 25 and final arguments started from August 27. It was when the final arguments had started, this application was moved by Mr Ansal before the trial court.
It said admittedly, prosecution witness DCP Amit Roy who had filed the second charge sheet in the case and to whom Mr Ansal wants to cross examine, on the basis of documents filed/seized by him never considered the petitioner an accused and probably for this reason, the erstwhile counsel did not prefer to cross examine him.
“It appeared to be a conscious decision of the counsel for the petitioner, considering the nature of evidence against him,” the high court said.
Earlier, senior advocate Vikas Pahwa, representing AVUT chairperson Neelam Krishnamoorthy, had argued that the new counsel of the accused has strategically filed an application under section 311 CrPC during final arguments to recall a witness who has already been cross examined extensively.
He had said that due to the delay caused in the trial, the victims of the tragedy had to approach the Delhi High Court several times, to get the charges framed against the accused in 2013 and even to expedite the trial in 2018 so that it is conducted in a time bound manner.
“Considering that the Uphaar tragedy happened in 1997, a delay has already been caused and the victims still await justice today in 2021 after 24 years of the incident,” Mr Pahwa had submitted.
The high court on September 9 had refused to stay the trial in the tampering of witness case.
The case relates to tampering with the evidence of the main case in which Sushil and Gopal Ansal were convicted and sentenced to two-year jail term by the Supreme Court.
However, the Supreme Court had released them on the period already undergone in the jail on the condition that they pay ₹ 30 crore fine each to be used for building a trauma centre in the national capital.
The Ansal brothers along with a court staff Dinesh Chand Sharma, and other individuals — P P Batra, Har Swaroop Panwar, Anoop Singh and Dharamvir Malhotra — were booked in the present case of allegedly tampering with the evidence.
Mr Panwar and Mr Malhotra died during the course of the trial.
According to the charge sheet, the documents alleged to have been tampered with included a police memo giving details of recoveries immediately after the incident, Delhi Fire Service records pertaining to repair of transformer installed inside Uphaar, minutes of Managing Director’s meetings and four cheques.
Out of the six set of documents, a cheque of ₹ 50 lakh, issued by Sushil Ansal to self, and minutes of the MD’s meetings, proved beyond doubt that the two brothers were handling the day-to-day affairs of the theatre at the relevant time, the charge sheet had said.
The fire had broken out at the Uphaar cinema during the screening of Hindi film “Border” on June 13, 1997 claiming 59 lives.
The case was lodged on the direction of the Delhi High Court while hearing a petition by Mr Krishnamoorthy.
The accused are charged with offences under sections 120-B (criminal conspiracy), 109 (abetment), 201 (causing disappearance of evidence of offence) and 409 (criminal breach of trust) of the IPC.