* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. 355/2011
% Judgment delivered on:9th August, 2011 PROF. DR. V.S. PARMAR ..... Petitioner Through : Mr. S.K. Sharma, Adv.
STATE GOVT. OF NCT OF DELHI ..... Respondent Through : Ms. Rajdeepa Behura, APP for the
State with IO
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to see the judgment? NO
2. To be referred to Reporter or not? NO
3. Whether the judgment should be reported NO in the Digest?
SURESH KAIT, J. (ORAL)
1. By the instant petition, the petitioner has challenged the order dated 28.07.2011 passed by the ld. MM.
2. The F.I.R. No.31/10 dated 08.04.2010 under Section 337 of the IPC was lodged against six accused persons including the petitioner.
3. Ms. Rajdeepa Behura, ld. APP for the State submits that during investigation Sections 338/304 of the IPC and Section 24 CRL.REV.P. 355/2011 Page 1 of 11 of the Atomic Energy Act, 1962 were added. She further submits that the charge sheet is almost ready and shall be filed within a week from today.
4. The ld. counsel for the petitioner submits that the petitioner had moved an application before the MM wherein he had prayed that the 'Look Out Notice' issued against him be withdrawn.
5. The ld. counsel for the petitioner has argued before the ld. MM that the charge sheet has not been filed, therefore, Section 24 of the Atomic Energy Act, 1962 is not applicable. He has further submitted that the IO is not empowered by any law to issue the 'Look Out Notice' and curtailing the movement and the liberty of the petitioner.
6. The ld. MM has noted that Magistrate is a creature of a statute, i.e., Cr.P.C., and there are no inherent powers vested in the Magistrate. The present enactment, i.e., Cr.P.C., dos not allow the Magistrate to interfere in the process of investigation. As such in the absence of any provision empowering this court to issue any directions to the IO, as prayed herein, the present application can be held to be not maintainable. Accordingly, the application was dismissed.
7. Ld. counsel for the petitioner submits that the petitioner is booked under Section 24 of the Atomic Energy Act, 1962 and the total punishment may extend to 5 years or with fine or with CRL.REV.P. 355/2011 Page 2 of 11 both. Further, submits that under Section 24 of the Atomic Energy Act, 1962, only the offences and the penalties are prescribed. Further submits that violations of the sections mentioned herein, i.e., Section 14,17 & 18, are not applicable to the petitioner, therefore, he cannot be punished under Section 24 of the Atomic Energy Act, 1962.
8. He further submits that the 'Gama Cell Machine' was given by the Canadian Government to the Indian Government in 1969, without imposing any condition as to how it shall be disposed of.
9. Ld. counsel for the petitioner further submits that a committee of 5 persons consisting of HOD from Department of Chemistry and Zoology and 3 senior Professors was constituted by the Vice Chancellor of Delhi University. Around 400 plus items were to be disposed of including this machine. Mrs. Rita Kakkar, Professor of Physical Chemistry, Department of Chemistry has sent the list of scrap, wherein, this machine was also one of the item. The said Professor/Rita Kakkar came to the conclusion that these items are un-serviceable/obsolete items/equipments for auction purposes. Accordingly, Smt. Rita Kakkar sent a list dated 08.02.2010 of scrap items, including the 'Gamma Cell Machine'.
10. Thereafter, one committee for disposal was constituted wherein, two more members one from Engineering Department and another from Internal Audit Department, were also added. CRL.REV.P. 355/2011 Page 3 of 11 Thereafter, the Vice Chancellor of the University has also approved the same. Thereafter, the said Committee disposed of those items in auction, after completing the due formalities, in the month of February, 2010.
11. Further it is stated that an information was received from IG/Security, Department of Atomic Energy, Mumbai about suspected radioactive emissions from shop No.D2/32 Mayapuri Ph-II, New Delhi. Officers from Atomic Energy Regulatory Board and other agencies visited the said shop and asked police officials to cordon off the surrounding area as they noticed radioactive radiation present in and around the shop.
12. During local enquiry at the spot, it was revealed that the four workers who were working at the shop, i.e., D2/32, Mayapuri, Phase-II were suffering from suspected radioactive radiation. They were sent for medical examination at Deen Dayal Upadhyay Hospital, Hari Nagar, Delhi and were admitted there and subsequently shifted to All India Institute of Medical Science.
13. Accordingly, a case vide FIR No.31/10 under Section 337 dated 08.04.2010 was registered at PS Mayapuri, after confirmation about the presence of radioactivity in an around the said shop corroborated by the medical reports of the victims. The persons who were affected with radioactive radiations were 8 in number.
CRL.REV.P. 355/2011 Page 4 of 11
14. It is further stated that during the treatment at AIIMS, one of the eight victims, namely, Rajender Prasad died on 26.04.2010 and, therefore, Section 304-A of the IPC was added in the case. Other victims were discharged from hospital after treatment.
15. During investigation, it was found that one Gamma Cell Machine was auctioned by the Delhi University in February, 2010 to Harcharan Singh Bhola, a scrap dealer in Mayapuri scrap market. During the process of dismantling of Gamma Cell at one of the shop in Mayapuri radioactive sources were exposed and radiations so emitted started affecting human beings.
16. It was further found that the equipment of Gamma Cell was kept in the room of Delhi University, which was given by the Government of Canada in 1969 for education purposes. The said machine, before auction, was under the supervision of Mrs. Rita Kakkar, Professor of Physical Chemistry, Department of Chemistry, Delhi University. In response to the letter by Prof. V.S. Parmar, HOD Chemistry to identify un-serviceable/obsolete items/equipments for auction purposes, Smt. Rita Kakkar sent a list of scrap items, including Gamma Cell.
17. The Investigating Officer has mentioned in the status report, which is on record, that after the process of auction was completed and after due formalities the scrap items were allowed to be removed by the successful bidder. Part of scrap items, of CRL.REV.P. 355/2011 Page 5 of 11 Gamma Cell was brought in the area of PS Mayapuri, by the scrap dealer of Mayapuri, through the original bidder.
18. During investigation it was found that there is sufficient evidence against all the accused persons including the petitioner. Further, it is mentioned in the status report by the IO that it was a rare of the rarest case in India as well as, among the limited nuclear disaster case, in the world.
19. Further mentioned, it certainly admire the capability of the applicant in his field, which is evident from the contents of his application, he had represented India in the topmost countries of the world. But it certainly does not expunge his role in the present case. His little ignorance turned into a disaster which created a havoc, ended with one life and infirmity of seven others through out.
20. Further he has justified his look out notice stating that the petitioner may leave the country and get asylum in some of the countries of the world who may take the advantage of his capability in the interest of the growth of their own nation. Admittedly, his whole family consisting of his wife, one son, one daughter-in-law and one daughter, all are citizens of U.S.A.
21. Ld. APP for the State submits that the charge sheet will be ready within a week and would be filed in the Court within 15 days. If the look out notice is withdrawn, then he may leave the CRL.REV.P. 355/2011 Page 6 of 11 country and they have all apprehension that he will not return back.
22. Ld. counsel for the petitioner submits that till date the petitioner is a Professor in the University of Delhi and all his service benefits are lying with the University. He has an ancestral house in Rani Bagh, Delhi and he is ready to abide by the conditions imposed by the Court.
23. I note, yesterday, i.e., 08.08.2011, the petitioner was present in the Court on a wheel chair and he was in a very bad condition being not well. He is undergoing treatment for various ailments as mentioned in the discharge summery dated 21.05.2011 of Medanta, the Medi City, Gurgaon.
24. Ld. counsel for the petitioner has relied upon the judgment of this Court in the case of Enforcement Directorate vs. Nemi Chand Jain @ Chandraswami, 148 (2008) DLT 277 wherein this Court has observed as under:-
"24. It is submitted that the respondent has been proceeded against under Section 8(1) read with Section 56 of the FERA and the
punishment prescribed for such an offence if proved is a minimum of 6 months extended up to 7 years. Relying on the judgments of Gopal Rams case (supra) and Feroze Khatoons case
(supra),the learned Counsel for the respondent states that the liberal rule of granting
permission to remain absent from court at the time of hearing would apply since the
CRL.REV.P. 355/2011 Page 7 of 11 respondents case would fall not within the
purview of long imprisonment.
25. As already stated that the right to travel abroad can only be curtailed under the
Passports Act, 1967 (in short the said Act) under Section 6(2)(f) read with Sections 10 and 11 of the said Act.
26. It is the case of the respondent that the respondent has been granted permission to
abroad on earlier occasions during (1987 to 1995) the pendency of investigations of more serious offences and had ultimately got
acquitted in those matters and that the FERA matters have been pending in the Department since 1982 when he was given such permission. In so far as the respondent being not allowed to go abroad in 1998 is concerned, the learned senior counsel pleaded that at that time
criminal proceedings were pending against the respondent in Lakhu Bhai Pathaks case
instituted by the CBI but the respondent has been acquitted in the said case and hence, the decision of the Supreme Court has become
25. Ld. counsel for the petitioner has also relied upon the judgment of this Court in the case of Nemi Chand Jain @ Chandraswami vs. Union of India and Ors., 146 (2008) DLT 641 wherein this Court has observed as under:- "7. I consider that if any investigating agency investigating a crime considers that presence of any suspect was necessary within India and he should not be allowed to leave the country, the CRL.REV.P. 355/2011 Page 8 of 11 investigating agency should request the
State/Central Government for passing an
appropriate order under the Appropriate
provisions of law, for putting restrictions on the movement of the person. If investigation of a case continues for years together, without an iota of evidences having been collected, the personal liberty of a person cannot be
jeopardized only on the ground of investigation being continued. Had there been any
additional evidence collected by MDMA or CBI in last 9 years, CBI would have filed additional chargesheet before the Court concerned."
26. Ld. counsel for the petitioner submits that the situation in present case is of more emergent in nature being the petitioner unwell and he wants to spend some time with his family.
27. The ld. APP for the State submits that in the Nemi Chand Jain's case (supra) in addition to violation of FERA and other white color crimes were committed and it took out 9 years to file the supplementary charge sheet. In that situation Nemi Chand Jain was allowed to go abroad.
28. Admittedly, FIR in this case was lodged on 08.04.2010 and till date the charge sheet is not ready, therefore, not filed in the court.
29. Admittedly, the petitioner is highly reputed in his field. The Gamma Machine though received in 1969 and for the last more than 20 years, was lying without any use and the University CRL.REV.P. 355/2011 Page 9 of 11 authorities wake up only in the year 2010, when some new machines were to be procured.
30. No doubt, the petitioner is in a very bad medical condition. Even otherwise, the liberty of any person cannot be curtailed to move around the country or even to go abroad. He is not a person who has no roots in the India and will not come back to India, if he goes for medical treatment or to spend some time with his family at the last juncture of his life.
31. Repeatedly, I asked the IO, who is personally present in the Court, about the manner in which the Gamma Cell Machine was to be disposed of. He has no reply. He stated that they were supposed to take permission from the Atomic Energy Regulatory Board under the Rules which are framed in the year 2004. Further submits, petitioner is no more required in the investigation. He was not arrested as nothing to be recovered.
32. Though this is not the stage to go in depth whether the petitioner has committed any offence under any of the provisions of the law enforceable as on date, since the charge sheet has not been filed in the Court, as investigation is going on.
33. Keeping in view the above discussion and the health condition of the petitioner, the order dated 28.07.2011 passed by the learned MM is set aside.
34. The IO is directed to withdraw the look out notice within two CRL.REV.P. 355/2011 Page 10 of 11 days.
35. The petitioner shall abide by the following conditions: (i) Money lying with the University of Delhi, where the petitioner is serving, shall not be released in case if he does not join the trial;
(ii) Third party interest shall not be created in the ancestral property of the petitioner bearing No. WZ 1039, Rani Bagh, New Delhi qua his share, without the permission of the court or till the disposal of the trial, whichever is earlier. (iii) The petitioner shall be present as and when called by the trial court.
36. Crl. Rev. P. No.355/2011 stands allowed in the aforesaid terms.
37. Dasti under the signature of the Court Master. SURESH KAIT, J
AUGUST 09, 2011
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