IN THE HIGH COURT OF DELHI AT...

IN THE HIGH COURT OF DELHI AT NEWDELHI

[CRIMINAL WRIT JURISDICTION]

W.P.[Crl.] No. -------------/2019

[CRIMINAL WRIT PETITION UNDER ARTICLE 226/227 OF

CONSTITUTION OF INDIA READ WITH SECTION 482 OF CODE

OF CRIMINAL PROCEDURE, 1973 FOR SEEKING

APPROPRIATE WRIT(S) / DIRECTION(S) IN FIR NO. 481/08

DATED 30.09.2008 REGISTERED U/S 302 IPC AT P.S.:

VASANT KUNJ, WHICH IS PENDING TRIAL IN THE COURT OF

MS. SUNAINA SHARMA, LD. ASJ, SAKET COURT, NEW DELHI]

IN THE MATTER OF:

BALJEET SINGH MALIK @ POPPY -------------PETITIONER

VERSUS

STATE [GOVT. OF NCT OF DELHI] --------RESPONDENT

WITH

Crl.Msc.A. NO. ------ OF 2019 APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPY

PAPER BOOK

[FOR INDEX KINDLY SEE INSIDE]

COUNSEL FOR THE PETITIONER: AMIT KUMAR & Co.

Bar and Bench (www.barandbench.com)



W.P.[Crl.] No. -------------/2019








IN THE MATTER OF:


VERSUS


INDEX

S.No.

Particulars

Page No.

1.

Court Fee

1

2.

Notice of Motion

2

3.

Urgent Application

3

4.

Memo of Parties

4

5.

List of dates and events

5

6.

Criminal Writ Petition Under Article 226/227

Of Constitution of India read with Section 482

of Code of Criminal Procedure, 1973 for

seeking appropriate writ(s) / direction(s) in

FIR No. 481/08 dated 30.09.2008 registered

u/s 302 IPC at P.S.: Vasant Kunj, which is

6 -


pending trial in the Court of Ms. Sunaina

Sharma, Ld. ASJ, Saket Court, New Delhi,

along with affidavit in support.

7.

Annexure-I [True copy of FIR along with true

typed copy and its English version]

8.

Application u/s 482 Cr. P. C. for exemption

from filing certified copy along with affidavit in

support.

9.

Vakalatnama

DELHI PETITIONER IN J/C [Baljeet Singh Malik]

DATE: 25.01.2019

THROUGH

AMIT KUMAR

COUNSEL FOR THE PETITIONER

Enrl. No. D-595 of 2005

AMIT KUMAR & Co. OFF.: A-4/25, IST FLOOR, SECTOR-4,

ROHINI, NEW DELHI-110085 Mobile No.: + 91 99 58 65 38 20




W.P.[Crl.] No. -------------/2019

IN THE MATTER OF:


VERSUS


NOTICE OF MOTION

Kindly take notice that the accompanying petition and applications

will be listed before Hon’ble Court on 28.01.2019 at 120190.30 A.M.

or soon thereafter as may be convenient to the Hon’ble Court.

Thanking You,

Yours faithfully,


DATE: 25.01.2019

THROUGH

AMIT KUMAR COUNSEL FOR THE PETITIONER

Enrl. No. D-595 of 2005






W.P.[Crl.] No. -------------/2019

IN THE MATTER OF:


VERSUS


URGENT APPLICATION

TO THE REGISTRAR GENERAL

HIGH COURT OF DELHI NEW DELHI

Dear Sir, Kindly treat the accompanying Criminal Writ Petition as urgent in

terms of the Delhi High Court Rules 1966 as issuance of appropriate

Writ / Direction has been prayed for.

Thanking you,

Yours faithfully


DATE: 28.01.2019

THROUGH


Enrl. No. D-595 of 2005






W.P.[Crl.] No. -------------/2019


CONSTITUTION OF INDIA READ WITH SECTION 482 OF CODE OF CRIMINAL PROCEDURE, 1973 FOR SEEKING APPROPRIATE

WRIT(S) / DIRECTION(S) IN FIR NO. 481/08 DATED 30.09.2008 REGISTERED U/S 302 IPC AT P.S.: VASANT KUNJ, WHICH IS PENDING TRIAL IN THE COURT OF MS. SUNAINA SHARMA, LD. ASJ,

SAKET COURT, NEW DELHI]

IN THE MATTER OF:


VERSUS


MEMO OF PARTIES

BALJEET SINGH MALIK @ POPPY S/o Shri Dharamvir Singh

R/O H. No. 161,

VPO- Masoodpur, Vasant Kunj,

New Delhi [Presently in J/C] -------------------PETITITIONER

VERSUS

STATE [GOVT. OF NCT OF DELHI] THROUGH STANDING COUNSEL [CRL.]

HIGH COURT OF DELHI -----------RESPONDENT


DATE: 28.01.2019

THROUGH


Enrl. No. D-595 of 2005




LIST OF DATES & EVENTS

30.09.2008 Present Case i.e. FIR No. 481/08 was registered

under section 302 IPC at P.S.: Vasant Kunj.

28.03.2009 Petitioner was arrested in the present FIR and

since then he has been languishing in jail.

22.06.2009 Charge-sheet u/s 302 / 201 / 489 / 420 / 468 /

471/411/34 IPC was filed against all the accused

persons including the present petitioner.

05.02.2010 Charge u/s 302/34 IPC against all the accused

persons including the present petitioner was

framed.

10.03.2010 Petitioner was formally arrested in the present

case to further investigate the charges under the

provisions MCOCA.

09.05.2011 On the basis of supplementary charge-sheet,

additional charge u/s 3 of MCOCA was also framed

against 4 accused persons including the present

Petitioner.

28.01.2019 Being aggrieved by the non-conclusion of trial,

despite being in custody for more than 9 ½ years,


the Petitioner is constrained to file the instant writ

petition for issuance of appropriate

Writ/Direction/Order to conclude the trial of the

present case within fixed time frame and if

possible on day to day basis.

PRECISE QUESTION, INTER-ALIA ARISING

FOR CONSIDERATION IN THE PRESENT CASE:

[The only question arises by the present Writ

petition for consideration that in the light of

observations made by Hon’ble Supreme Court in

Hussain and Anr. Vs. Union of India,

[Criminal Appeal No. 509 of 2017 dated

09.03.2017] whether the present case i.e. FIR

No.481/08 dated 30.09.2008 registered u/s 302

IPC at P.S.: Vasant Kunj, requires directions of this

Hon’ble Court regarding conclusion of the trial of

the present case within fixed time frame and if

possible, on day to day basis, due to reason that

the petitioner is in custody for more than 9 ½

years and trial of the case has not been concluded

so far.]




W.P.[Crl.] No. -------------/2019








IN THE MATTER OF:


VERSUS


TO,

THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE DELHI HIGH COURT

THE HUMBLE APPEAL OF THE APPELLANT MENTIONED ABOVE

MOST RESPECTFULLY SHOWETH:

1. That the petitioner is one of the accused persons in the

present case. He was 20 year old unmarried boy in the

year 2008, when the present case was registered. He

was arrested in the present case on 28.03.2009 and

since then he has been languishing in jail and facing trial

as Under Trial Prisoner.


2. That the case of the prosecution in brief is that on

30.09.2008 an information was received vide DD No. 6A

at around 03.45 A.M. in P.S.: Vasant Kunj that one lady

who was subsequently identified as T.V. Journalist Ms.

Saumya Vishwanathan, was found being murdered by a

gun shot in her head, in her Maruti Zen Car bearing No.

DL-2C R-5801 at Nelson Mandela Marg, Vasant Kunj,

New Delhi. It is further case of the prosecution is that

the present case was registered as FIR No. 481/08

under section 302 IPC at P.S.: Vasant Kunj on

30.09.2008 on the complaint of one Inspector S. S.

Hasan. Copy of the said FIR along with its true typed

copy and its English version is annexed herewith as

Annexure-I.

3. That the petitioner was arrested and falsely made as one

of the accused persons in the present case on the basis

of his alleged disclosure statement. It is submitted that

after registration of the present case, there was a huge

social and media pressure on respondent-state to solve

the present case as the respondent-state had remained

clueless about the real culprits for about 6 months since

date of alleged incident, and finding no other way, due

to social and media pressure the prosecution choose to

solve this blind murder case thereby falsely involving the

present petitioner along with other accused persons on

the basis of false, fabricated and concocted prosecution

story.


4. That after completion of investigation, initially charge-

sheet for offences under section u/s 302 / 201 / 489 /

420 / 468 / 471/411/34 IPC was filed against 5 accused

persons including the present petitioner on 22.06.2009

and thereafter supplementary charge-sheet for offences

under section 3 of MCOCA was also filed.

5. That on the basis of the said charge-sheet, initial

charges for offences u/s 302/34 IPC was framed against

4 accused persons vide order dated 05.02.2011 and

later the additional charges under Section 3 of MCOCA

was also framed against the accused persons including

the present petitioner vide order dated 02.05.2011 of

the learned trial court.

6. That the accused was arrested in the present case on

28.03.2009 and since then he has been languishing in

jail. It is submitted that more than 9 ½ years is over

since the date of arrest of the petitioner but the

Respondent has not been able to conclude the trial of

the present case so far. It is further submitted that the

trial of the present case is pending before the Hon’ble

Court of Ms. Sunaina Sharma, Ld. Session Judge, Saket

Court, New Delhi. Being aggrieved by the non-

conclusion of the trial till date despite being in custody

for more than 9 ½ years, the petitioner is constrained to


file the instant petition on the basis of following

grounds:

A. That the present case was registered as FIR No.

481/08 under section 302 IPC at P.S.: Vasant Kunj in

the year 2008 on 30.09.2008.

B. That the petitioner was arrested as one of the

accused persons in the present case on 28.03.2009

and since then he has been languishing in jail in a

capacity of Under-Trial-Prisoner, in the present case.

C. That despite being petitioner in custody for last more

than 9 ½ years, trial of the present case has not been

concluded.

D. That the prosecution has cited around 88 witnesses in

their charge-sheet and supplementary charge-sheet,

and till date, less than 60 % of the cited witnesses

have been examined.

E. That being charged with the stringent provisions of

MCOCA the petitioner has not been able to be

released on regular bail.

F. That the constitutional right of speedy trial at all

stages is a constitutional mandate and the

respondent-state cannot avoid its constitutional


obligation by pleading any inability/excuses, as the

consequences for pre-trial detention are extremely

grave.

G. That unreasonable delay in investigation and trial of

the present case is not only prejudiced the right of

the petitioner but also the right of family of deceased.

H. That on account of long incarceration in the present

case the petitioner has suffered immense mental,

physical, social and emotional agony.

I. That the speedy trial is guaranteed as a fundamental

right under Article 21 of the Constitution of India. It

is an essential part of Right to life and liberty

guaranteed and preserved under our Constitution.

Right to speedy trial begins with the actual restraint

imposed by arrest and consequent incarceration and

continues at all stages, namely, the stage of

investigation, enquiry, trial, appeal and revision so

that any possible prejudice that may result from

impermissible and avoidable delay from the time of

the commission of the offence till it consummates

into a finality, can be averred.

J. That in [Vakil Prasad Singh Vs. State of Bihar, AIR

2009 SC 1822], Hon’ble Supreme Court of India was

pleased to observe that Article 21 confers a


fundamental right on every person not to be deprived

of his life or liberty except according to procedure

established by law, that such procedure is not some

semblance of a procedure but the procedure should

be ‘reasonable, fair and just’; and therefrom flows,

without doubt, the right to speedy trial. It was also

observed that no procedure which does not ensure a

reasonably quick trial can be regarded as ‘reasonable,

fair or just’ and it would fall foul of Article 21. The

court clarified that speedy trial means reasonably

expeditious trial which is an integral and essential

part of the fundamental right to life and liberty

enshrined in Article 21.

K. That the constitutional guarantee of speedy trial is

properly reflected in Section 309 of the Code of

Criminal Procedure. It is submitted that as per

mandate of Section 309 of Cr.P.C., once examination

of witnesses started, the court has to examine the

trial from day to day until all witnesses in attendance

have been examined. The court has to record

reasons for deviating from the said course. Even that

is forbidden when witnesses are present in court, as

the requirement then is that the court has to examine

them. Only if there are “special reasons”, which

reasons should find a place in order for adjournment,

that alone can confer jurisdiction on the Court to

adjourn the case without examination of witnesses


who are present in the Court. It is submitted that the

petitioner is relying upon [State of U.P. Vs. Shambhu

Nath Singh, AIR 2001 SC 1403].

L. That the criminal courts exercise available powers

such as those under section 309, 311 and 258 of

Cr.P.C. to effectuate right to speedy trial. [State Vs.

Dr. Narayan Waman Nerukar, AIR 2002 SC 2988.]

M. That the petitioner in the present case has been

deprived of his right of having speedy investigation

and now having speedy trial with unreasonable delay,

in gross violation of the provisions of Code of Criminal

Procedure, 1973 and Maharashtra Control of

Organised Crime Act, 1999 [MCOCA].

N. That as per settled law by the Hon’ble Apex Court,

every citizen including the petitioner has a right of

speedy trial of the case pending against him. The

speedy trial was considered also in public interest as

it serves the social interest also. It is in the all

concerned that guilt or innocence of the accused is

determined as quickly as possible in the

circumstances.

O. That the Hon’ble Supreme Court of India was pleased

to observe in Akhtari Bai Vs. State of M.P., AIR 2001

SC 1528, that to have a speedy justice is a


fundamental right which flows from Article 21 of the

Constitution. Prolonged delay in disposal of the trials

and thereafter appeals in criminal cases, for no fault

of the accused confers a right upon him to apply for

bail. It is submitted that the prolongation has not

been on account of the petitioner, as the same has

been contributed by the inordinate delay in

investigation, non-availability of Special Public

Prosecutor and also due to non-appearance of the

witnesses.

P. That Hon’ble Supreme Court of India was pleased to

observe in [Motilal Saraf Vs. State of Jammu and

Kashmir, AIR 2007 SC 56] that the prevention of

unreasonable delay is the bounden duty of the court

and the prosecution. The purpose of right to speedy

trial is intended to avoid oppression and prevent

delay by imposing on the courts and on the

prosecution an obligation to proceed, with reasonable

dispatch. It was further observed that in order to

make the administration of criminal justice effective,

vibrant, and meaningful, the Union of India, the State

Governments and all concerned authorities must take

necessary steps immediately so that the important

constitutional rights of the accused of a speedy trial

does not remain only on papers or as a mere

formality.


7. That neither the Petitioner nor any person on his behalf

has filed any similar petition seeking similar relief(s)

before this Hon’ble Court or before Hon’ble Supreme

Court of India.

8. That the petitioner is willing and undertakes to spend

the compensation amount claimed herein for the welfare

of Under-Trial-Prisoners of Central Jail Tihar.

9. That the petitioner has not placed reliance upon charge-

sheet and other documents of trial court record for the

purpose of prayer made in the present petition.

However, he undertakes to file any other documents, if

required, as per directions of this Hon’ble Court.

10. That the Petitioner craves the leave of this Hon’ble court

to add/alter/argue/raise any other or further grounds

and also cite the relevant case laws during the course of

hearing of the instant petition.

11. That this Hon’ble Court has jurisdiction to entertain the

present petition as per law laid down by Hon’ble

Supreme Court of India in Hussain and Anr. Vs. Union

of India, [Criminal Appeal No. 509 of 2017 dated

09.03.2017]. It is also due to reason that all sets of

cause of action have arisen here in Delhi as the present

case was investigated after registration of FIR within the

territorial jurisdiction of this Hon’ble Court. It is also


due to reason that the petitioner was arrested and kept

in custody herein Delhi. It is further due to reason that

the trial of the present case is pending Hon’ble Court of

Ms. Sunaina Sharma, Ld. ASJ, Saket Court, New Delhi,

which is also within the territorial jurisdiction of this

Hon’ble Court. It is also due to reason that under Article

227 of Constitution of India, this Hon’ble Court may call

the trial court record and examine the reasons of

inordinate delay caused by the respondent-state during

course of conducting investigation and trial and

accordingly may fix the liability of the concerned

officials.

PRAYER

In view of the aforesaid facts and circumstances, the petitioner

herein most humbly prays that this Hon’ble Court may graciously be

pleased to:

A. Call the Trial Court Record.

B. Issue an appropriate Writ/Order thereby directing the Trial

Court [i.e. Hon’ble Court of Ms. Sunaina Sharma, Ld. ASJ,

Saket Court, New Delhi] to expedite and conclude the trial of

the present case [i.e. FIR No. 481/08 registered u/s 302 IPC

at P.S.: Vasant Kunj], in a fixed time frame on day to day

basis, in the interest of Justice.


C. Issue an appropriate Writ/Order thereby directing the

Respondent to compensate the petitioner with Rs. 1 Crore on

account of unreasonable and inordinate delay in investigation

and trial of the present case.

D. Pass such other and further order[s] as may deem fit and

proper and in the interest of justice.


DATE: 25.01.2019

THROUGH


Enrl. No. D-595 of 2005





IN THE MATTER OF:


VERSUS


AFFIDAVIT

I, Rajender Malik S/o Shri Dharamvir Malik, aged about 33 years, R/O

H.No.161, A-Block, Village: Masoodpur, Vasant Kunj, New Delhi-70, do

hereby solemnly affirm and state as under:

1. That I am elder brother/Pairokar of the petitioner/applicant above

named and in that capacity I am conversant with the facts of the

case and I am also competent to swear this affidavit.

2. That I have read and understood the contents of the accompanying

Petition/application, which has been drafted by my counsel under

my instructions. I declare that the contents of the accompanying

petition/application have been read over to me in vernaculars,

which are true and correct to the best of my knowledge and belief.

3. That the documents accompanying the petition/application are true

/typed /translated copies of their respective originals.

DEPONENT

VERIFICATION:

Verified today the 25th day of January, 2019 that the contents of the

present affidavit of mine are true and correct as per my knowledge and

belief. Nothing is false, nor anything material, has been concealed there

from.

DEPONENT



Crl. Msc. A. No. ------------/2019

In

W.P.[Crl.] No. -------------/2019

IN THE MATTER OF:


VERSUS


APPLICATION UNDER SECTION 482 OF CODE OF CRIMINAL

PROCEDURE, 1973 FOR EXEMPTION FROM FILING CERTIFIED

COPIES OF ORDERS, DOCUMENTS AND DIM ANNEXURES

MOST RESPECTFULLY SHOWETH:

1. That the petitioner / applicant has filed the accompanying Writ

petition for seeking appropriate Writ(s) /direction(s) in FIR No.

481/2018 dated 30.09.2008 registered u/s 302 IPC at P.S.:

Vasant Kunj, which is pending trial in the court of Ms. Sunaina

Sharma, Ld. ASJ, Saket Court, New Delhi.

2. That petitioner is not able to file the certified copies of all

orders, documents and annexures but however the same are

true photocopies / typed copes of their respective originals.

The petitioner undertakes to file the same as and when

required by this Hon’ble Court.

PRAYER

In view of the facts narrated above, it is most respectfully

prayed that this Hon’ble Court may kindly be pleased to:


A. Exempt the petitioner from filing the certified copies of

orders/documents/Annexures and dim copies thereof; and

B. Pass such other and further order[s] as may deem fit and

proper and in the interest of justice.

DELHI PETITIONER IN J/C [Baljit Singh Malik]

DATE: 25.01.2019

THROUGH


Enrl. No. D-595 of 2005





Crl. Msc. A. No. ------------/2019

In

W.P.[Crl.] No. -------------/2019

IN THE MATTER OF:


VERSUS


AFFIDAVIT I, Rajender Malik S/o Shri Dharamvir Malik, aged about 33 years, R/O

H.No.161, A-Block, Village: Masoodpur, Vasant Kunj, New Delhi-70, do

hereby solemnly affirm and state as under:

1. That I am elder brother/Pairokar of the petitioner above named and

in that capacity I am conversant with the facts of the case and I am

also competent to swear this affidavit.

2. That I have read and understood the contents of the accompanying

application, which has been drafted by my counsel under my

instructions. I declare that the contents of the accompanying

application have been read over to me in vernaculars, which are

true and correct to the best of my knowledge and belief.

3. That the documents accompanying the petition are true /typed

/translated copies of their respective originals.

DEPONENT

VERIFICATION:

Verified today the 25th day of January, 2019 that the contents of the

present affidavit of mine are true and correct as per my knowledge and

belief. Nothing is false, nor anything material, has been concealed there

from.

DEPONENT


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