Interim Order 23

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
SC No.:63/2023
State Vs.: Habibur Rehman & others
FIR No.132/2021
U/s: 409/201/380/381/457/120B/34 IPC
& 3/9 Official Secrets Act
P.S.: Crime Branch
CNR No.: DLCT01-001416-2023
ORDER ON CHARGE
19/05/2025
Present: Mr. Yogendra Aadari, ld. Addl.PP for the State.
Accused No.1 Habib-Ur-Rehman produced through
VC.
Accused No.2 & 3 namely Paramjeet Kumar and
Mohsin Khan are produced from JC.
Mr. V. Madhukar, ld. Counsel for accused No.1 & 3
through VC.
Mr. Kanhaiya Singhal and Mr. Binwant Singh, ld.
Counsels for accused No.2.
1. Arguments on the point of charge heard.
2. Record perused.
3. Ld. Addl.PP for State submitted that the offences as
mentioned in the chargesheet are prima facie made out
against the accused persons. It is argued that on the basis
of secret information, raiding party was prepared and the
accused Habibur Rehman was intercepted who was found
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in possession of classified and sensitive documents which
ought not to be in his possession and their disclosure could
be detrimental to the safety and integrity of our country. It
is further argued that accused Habibur Rehman disclosed
the involvement of co-accused Paramjeet and Mohsin in
the commission of the offence. It is further argued that
accused Habibur Rehman was the sub contractor for
supplying items in the unit of co-accused Paramjeet who
was employed in India Army. It is further argued that
accused Habibur Rehman has also gone to meet accused
Paramjeet after he was transferred to Agra, UP and he was
in regular touch with him. It is further argued that money
was transferred to accused Paramjeet and his family
members by Mohsin through various channels. It is further
argued that accused Paramjeet was already under
interrogation by the army officers and he was found in
possession of duplicate keys which he had got prepared by
a key maker and used the same for stealing the classified
documents. It is further argued that one official of Pakistan
High Commission was also involved in the commission of
offence who was in contact with accused Habibur Rehman
and Mohsin Khan. It is further argued that the mobile
phone used by the official of Pakistan High Commission
was got recharged by co-accused Mohsin. It is argued that
there is ample evidence on record against the accused
persons and charges may kindly be framed against them as
per the chargesheet.
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4. The Counsel for accused Habibur Rehman and Mohsin
Khan argued that they have been falsely implicated in the
present case. It is argued that it is a case of no evidence
and the present case is completely based on disclosure
statements. It is further argued that Zia-Ur-Rehman is
alleged to be some official of Pakistan High Commission
but there is no evidence of his existence. It is further
argued that no money has been transferred from the
account of accused Habibur Rehman or Mohsin. It is
further argued that it is not believable that in today’s time
the accused Habibur Rehman was found in possession of
physical documents which are alleged to be classified and
the case is falsely planted upon the accused persons. It is
further argued that it has been alleged by the prosecution
that one SIM has been procured in the name of one labour
of accused Habibur Rehman but there is no evidence of his
employment. It is argued that there is absolutely no
admissible evidence to connect the accused persons with
the alleged crime and no charges are made out against the
accused persons.
5. The counsel for accused Paramjeet argued that a lot of
sections have been chargesheeted against the accused
without any basis. It is further argued that there could be
either section 380/381 IPC or there could be section 409
IPC as both of them cannot be invoked together. It is
argued that there are no allegations of entrustment upon
the accused Paramjeet and therefore section 409 IPC
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cannot be charged against him. It is further argued that
section 201 IPC has been invoked as the phone has been
destroyed by accused Mohsin and such section cannot be
charged against accused Paramjeet or accused Habibur
Rehman as they have no role to play in such destruction. It
is further argued that section 457 IPC is not made out
against accused Paramjeet as he was the employee of
Indian Army and as a part of his deployment, he has right
to move in the unit and therefore, he cannot be said to have
committed trespassing. It is further argued that section 3 of
the OS Act is not made out against the accused persons as
the documents are only stated to be classified and sensitive
but no secret which is the necessary ingredient of section 3
of the OS Act. It is further argued that section 9 of the OS
Act pertains to the attempt and abetment of the offence
under OS Act and as such, it is also not made out against
accused Paramjeet. It is prayed that accused Paramjeet
may kindly be discharged from the present case.
LAW ON FRAMING OF CHARGE
6. It is settled law that at the stage of framing of charge the
Court has to form prima-facie opinion whether there are
sufficient grounds for proceeding against the accused and
for that, the Court has to see whether there is material on
record to presume that the accused may have committed
the offence. It is settled law that strong suspicion against
the accused is sufficient to frame charge against the
accused. The Court is not ought to see at this stage whether
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the trial will end in conviction or acquittal. Though the
strong suspicion may not take place of proof at the trial
stage, yet it may be sufficient for the satisfaction of the
Court in order to frame charge against the accused. At this
stage, the Court may sift the evidence for this limited
purpose but it is not required to marshal the evidence with
a view to separate grain from the chaff. The probative
value of the material on record cannot be gone into and the
material brought on record by the prosecution has to be
accepted as true. Law does not allow the stage of charge to
become a stage of mini trial.
7. There is no dearth of precedents on this aspect of law. It
would be useful to quote some authorities of the Hon’ble
Apex Court, which are as follows:-
8. The Hon’ble Apex court in case of
State of Karnataka v. L.
Muniswamy ((1977) 2 SCC 699) has held that at the stage
of framing the charge the court has to apply its mind to the
question whether or not there is any ground for presuming
the commission of offence by the accused. The Court has
to see while considering the question of framing the charge
as to whether the material brought on record could
reasonably connect the accused with the trial. Nothing
more is required to be inquired into.
9. In the case of
Union of India v. Prafulla Kumar Samal;
(1979) 3 SCC 4, the Hon’ble Apex Court has settled that at
the time of framing of charge, the court is not required to
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make a roving enquiry into the pros and cons of the matter
and weigh evidence as if it is conducting a trial.
10. In case of
Supdt. & Remembrancer of Legal v. Anil Kumar
Bhunja, (1979) 4 SCC 274, the Hon’ble Apex court has
observed that it may be remembered that the case was at
the stage of framing charges; the prosecution evidence had
not yet commenced. The Magistrate had therefore, to
consider the above question on a general consideration of
the materials placed before him by the investigating police
officer. At this stage, as was pointed out by this Court in
State of Bihar v. Ramesh Singh, the truth, veracity and
effect of the evidence which the prosecutor proposes to
adduce are not to be meticulously judged. The standard of
test, proof and judgment which is to be applied finally
before finding the accused guilty or otherwise, is not
exactly to be applied at the stage of Section 227 or 228 of
the Code of Criminal Procedure, 1973. At this stage, even
a very strong suspicion founded upon materials before the
Magistrate, which leads him to form a presumptive
opinion as the existence of the factual ingredients
constituting the offence alleged; may justify the framing of
charge against the accused in respect of the commission of
the offence.
11. The Hon’ble Apex court in
Stree Atyachar Virodhi
Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715
has held that in fact, sec. 227 itself contains enough
guidelines as to the scope of enquiry for the purpose of
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discharging an accused. It provides that
“the Judge shall
discharge when he considers that there is no sufficient
ground for proceeding against the accused”. The ‘ground’
in the context is not a ground for conviction, but a ground
for putting the accused on trial. It is in the trial, the guilt or
the innocence of the accused will be determined and not at
the time of framing of charge. The Court, therefore, need
not undertake an elaborate enquiry in sifting and weighing
the material. Nor it is necessary to delve deep into various
aspects. All that the Court has to consider is whether the
evidentiary material on record if generally accepted, would
reasonably connect the accused with the crime. No more
need be enquired into.
12. The Hon’ble Apex court in case of
State of Maharashtra v.
Som Nath Thapa ((1996) 4 SCC 659) has observed as
follows:-
“Let us note the meaning of the word ‘presume’. In
Black's Law Dictionary it has been defined to mean “to
believe or accept upon probable evidence”. (emphasis
ours). In Shorter Oxford English Dictionary it has been
mentioned that in law ‘presume’ means “to take as
proved until evidence to the contrary is forthcoming”.
Stroud's Legal dictionary has quoted in this context a
certain judgment according to which “A presumption is
a probable consequence drawn from facts (either
certain, or proved by direct testimony) as to the truth of
a fact alleged”. (Emphasis supplied). In Law Lexicon
by P Ramanath Aiyar the same quotation finds place at
p. 1007 of 1987 Edn. The aforesaid shows that if on the
basis of materials on record, a court could come to the
conclusion that commission of the offence is a probable
consequence; a case for framing of charge exists. To put
it differently, if the court were to think that the accused
might have committed the offence it can frame the
charge, though for conviction the conclusion is required
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to be that the accused has committed the offence. It is
apparent that at the stage of framing of a charge,
probative value of the materials on record cannot be
gone into; the materials brought on record by the
prosecution has to be accepted as true at that stage.”
13. In
State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338, the
Hon'ble Supreme Court of India held in paragraph 7 as
under:-
“7. The crystallised judicial view is that at the stage of
framing charge, the court has to prima facie consider
whether there is sufficient ground for proceeding
against the accused. The court is not required to
appreciate evidence to conclude whether the materials
produced are sufficient or not for convicting the
accused.”
14. In case of
Kanti Bhadra Shah v. State of West Bengal,
(2000) 1 SCC 722, the Apex court has held that if the trial
court decides to frame a charge there is no legal
requirement that he should pass an order specifying the
reasons as to why he opts to do so. Framing of charge
itself is prima facie order that the trial judge has formed
the opinion, upon consideration of the police report and
other documents and after hearing both sides, that there is
ground for presuming that the accused has committed the
offence concerned.
15. In
State of Delhi v. Gyan Devi, (2000) 8 SCC 239, the
Apex court has held that the legal position is well settled
that at the stage of framing of charge the Trial Court is not
to examine and assess in detail the materials placed on
record by the prosecution nor is it for the Court to consider
the sufficiency of the materials to establish the offence
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alleged against the accused persons. At the stage of charge
the Court is to examine the materials only with a view to
be satisfied that prima facie case of commission of offence
alleged has been made out against the accused person.
16. The Hon’ble Apex court in case of
Sanghi Brothers
(Indore) Pvt. Ltd. v. Sanjay Choudhary, (2008) 10 SCC
681 after analyzing the terminology used in the three pairs
of sections, it was held that despite the differences there is
no scope for doubt that at the stage at which the court is
required to consider the question of framing of charge, the
test of a prima facie case to be applied.
17. The Hon’ble Apex Court in the case of
Palwinder Singh v.
Balvinder Singh; (2008) 14 SCC 504 has held that the
jurisdiction of Sessions Judge at the time of discharge is
very limited. In the said judgment it has been held that
charges can also be framed on the basis of strong
suspicion. Marshaling and appreciation of evidence is not
in the domain of the court at that point of time.
18. The Hon'ble Supreme Court in
Sajjan Kumar v. Central
Bureau of Investigation, (2010) 9 SCC 368, held as under:-
“At the stage of framing of charge under section 228
Cr.P.C. or while considering the discharge petition filed
under Section 227, it is not for the Magistrate or the
Judge concerned to analyse all the materials including
pros and cons, reliability or acceptability, etc. It is at the
trial, the Judge concerned has to appreciate their
evidentiary value, credibility or otherwise of the
statement, veracity of various documents and is free to
take a decision one way or the other.”
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19. The Hon'ble Supreme Court in the case of
Amit Kapoor v.
Ramesh Chander, (2012) 9 SCC 460 has held as under:
“17. Framing of a charge is an exercise of jurisdiction
by the trial court in terms of Section 228 of the code,
unless the accused is discharged under section 227 of
the Code. Under both these provisions, the Court is
required to consider the “record of the case” and
documents submitted therewith and, after hearing the
parties, may either discharge the accused or where it
appears to the court and in its opinion there is ground
for presuming that the accused has committed an
offence, it shall frame the charge. Once the facts and
ingredients of the section exists, then the court would
be right in presuming that there is ground to proceed
against the accused and frame the charge accordingly.
This presumption is not a presumption of law as such.
The satisfaction of the court in relation to the existence
of constituents of an offence and the facts leading to
that offence is a sine quo non for exercise of such
jurisdiction. It may even be weaker than a prima facie
case. There is a fine distinction between the language of
sections 227 and 228 of the Code. Section 227 is the
expression of a definite opinion and judgement of the
court while section 228 is tentative. Thus, to say that at
the stage of framing of charge, the Court should form
an opinion that the accused is certainly guilty of
committing an offence, is an approach which is
impermissible in terms of Section 228 of the Code.”
“19. At the initial stage of framing of a charge, the court
is concerned not with proof, but with a strong suspicion
that the accused has committed an offence, which, if
put to trial, could prove him guilty. All that the court
has to see is that the material on record and the facts
would be compatible with the innocence of the accused
or not. The final test of guilt is not to be applied at that
stage.”
20. In
Sheoraj Singh Ahlawat v. State of Uttar Pradesh, (2013)
11 SCC 476, Hon'ble Apex Court after citing the catena of
judgments has summarized the principles in respect of
framing of charges or discharge of the accused and held as
under:
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“While framing charges, court is required to evaluate
materials and documents on record to decide
whether facts emerging therefrom taken at their face
value would disclose existence of ingredients
constituting the alleged offence. At this stage, the
court is not required to go deep into probative value
of materials on record. It needs to evaluate whether
there is a ground for presuming that accused had
committed offence. But it should not evaluate
sufficiency of evidence to convict accused. Even if,
there is a grave suspicion against the accused and it
is not properly explained or court feels that accused
might have committed offence, then framing of
charge against the accused is justified. It is only for
conviction of accused that materials must indicate
that accused had committed offence but for framing
of charges if materials indicate that accused might
have committed offence, then framing of charge is
proper. Materials brought on by prosecution must be
believed to be true and their probative value cannot
be decided at this stage. The accused entitled to urge
his contentions only on materials submitted by
prosecution. He is not entitled to produce any
material at this stage and the court is not required to
consider any such material, if submitted. Whether
the prima facie case made out depends upon fact and
circumstances of each case. If two views are
possible and materials indicate mere suspicion, not
being grave suspicion, against accused then he may
be discharged. The court has to consider broad
probabilities of case, total effect of evidence and
documents produced before it. The court should not
act as mouthpiece of prosecution and it is
impermissible to have roving enquiry at the stage of
framing of charges.”
21. The Hon'ble Supreme Court in
State By Karnataka
Lokayukta v. M.R. Hiremath, 2019 SCC OnLine SC 734
has held as under:
“29…At this stage, probative value of the materials has
to be gone into and the court is not expected to go deep
into the matter and hold that the materials would not
warrant a conviction. In our opinion, what needs to be
considered is whether there is a ground for presuming
that the offence has been committed and not whether a
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ground for convicting the accused has been made out.
To put it differently, if the court thinks that the accused
might have committed the offence on the basis of the
materials on record on its probative value, it can frame
the charge; though for conviction, the court has to come
to the conclusion that the accused has committed the
offence. The law does not permit a mini trial at this
stage.”
BRIEF FACTS
22. In the present case, the prosecution story is that a secret
information was received regarding involvement of some
person(s) based in Delhi, Rajasthan & Uttar Pradesh who
were carrying out anti-national activities and involved in
spying / espionage, which was detrimental to the national
security and that these individuals used to visit Pakistan
High Commission located at Chanakyapuri, Delhi.
23. On 11.07.2021, a specific secret intelligence was received
through one of the sources, that one individual in the name
of Habib shall provide secret / classified documents
pertaining to Indian Army to Pakistan through some
individuals, based in Delhi, at Pokhran. Acting on the
above said information, a team was found which reached
Pokhran, Rajasthan and on 12.07.2021, Accused Habibur
Rehman, son of Mohd. Haneef, residing at Pokhran,
Rajasthan, was apprehended at Diatra, Bikaner Highway,
Rajasthan and he was found in possession of highly
secret / classified documents pertaining to the Indian
Army. Accused Habibur Rehman did not give any
satisfactory reply as to why he was in possession of these
documents. All the above documents were taken into
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police possession and were got verified / authenticated
from Army HQ, Sena Bhawan, Delhi, which confirmed the
authenticity of these documents and informed as follows:
“……the documents are classified and sensitive in
nature. Since the documents are classified, any
unauthorized disclosure of content of these
documents could be expected to cause damage to
national security or could be prejudicial to the
national interest or would embarrass the Government
in its functioning……”.
24. Accordingly, the present case was registered on
14.07.2021. Considering the overall circumstances
accused Habibur Rehman, son of Mohd. Haneef, R/o
Pokhran, Rajasthan was arrested in the present case on
14.07.2021. Accused Habibur Rehman disclosed that the
classified information which he procures from accused
Naik Clerk Paramjeet Kumar was being passed on to his
handler Rana Muhammad Qasim Zia (official of Pakistan
High Commission) either directly or through one Mohsin
Khan (residing at Turkman Gate, Delhi) and likewise, he
was being paid either directly by the said PHC official or
through Mohsin (who was provided money by PHC
official and then the said money was transferred in the
accounts of friends of Habibur Rehman & Naik Clerk
Paramjeet Kumar and his family members).
25. On the basis of evidence collected, accused persons Naik
Clerk Paramjeet Kumar and Mohsin Khan were also
arrested in the present case on 16.07.202 and 25.07.2021,
respectively.
ROLE OF ACCUSED HABIBUR Rehman
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26. Accused Habibur Rehman was intercepted on the basis of
secret information and he was found in possession of
classified and sensitive documents which ought not to be
in his possession. The said documents recovered from his
possession were got verified from Army HQ, Delhi, which
confirmed that these documents are high confidential
containing classified and sensitive information and any
unauthorized disclosure of content of these documents is
detrimental for the national security.
27. The classified documents which were recovered from the
possession of accused Habibur Rehman were also found
stored in the phone memory of accused Naik Clerk
Paramjeet Kumar.
28. Accused Paramjeet Kumar was posted as Naik Clerk with
Supply Platoon of Army Service Corps, Pokhran,
Rajasthan, from 2017 to 2019, where he met accused
Habibur Rehman. Accused Habibur Rehman was
supplying vegetables, fruits etc. to the Supply Platoon on
the basis of Power of Attorneys given to him by the actual
contractors to whom the contract was awarded by the
Army. Accordingly, it is alleged that he was having access
in the above Area of Supply Platoon.
29. It is alleged that in the year 2019, he visited Pakistan. It is
alleged that prior to his visit, accused went to Pakistan
High Commission, Delhi for procuring visa, where he
came in contact with Rana Muhammad Qasim Zia who
allured him to provide information/documents related to
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Army unit stationed at Pokhran. It is alleged that on such
allurement & inducement of the aforesaid PHC official, he
started developing liaison with accused Naik Clerk
Paramjeet Kumar.
30. It is alleged that taking advantage of the financial
situation of accused Paramjeet Kumar, he induced
Paramjeet who started providing confidential Army
documents to him which were further handed over to his
Pakistan handler Rana Muhammad Qasim Zia either
directly or through accused Mohsin Khan and he was paid
either directly by the said Pakistan High Commission
official or through Mohsin Khan.
31. It is alleged that accused Mohsin was being provided
money by Rana Muhammad Qasim Zia (Pakistan High
Commission official) and then the said money was being
transferred to accused Habibur Rehman through his friends
& to the bank accounts of Naik Clerk Paramjeet Kumar
and his family members.
32. It is further alleged that later, accused Paramjeet Kumar
was transferred from Pokhran to one of the highly
sensitive unit of Indian Army, based in Agra, UP. Accused
Habibur Rehman and accused Paramjeet Kumar, during
this posting also, remained in touch with each other.
Accused Habibur Rehman visited Agra to meet accused
Paramjeet where accused Paramjeet Kumar provided him
highly classified/ confidential information & documents.
During this visit, he stayed at Mannat Hotel, Agra and
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relevant documents regarding his stay were collected
during investigation.
33. It is further alleged that on the directions of accused
Mohsin Khan, Money Forwarding Agent Bablu Patel
forwarded an amount of INR 1,10,000 through five
transactions to one Care Chemist which was located at
Bikaner and the owner of it is one Harun Rashid resident
of Bikaner who is childhood friend of accused Habibur
Rehman. It is alleged that the said money was transferred
by accused Mohsin Khan on the directions of accused
Habibur Rehman on account of providing classified
documents to Pakistani Handler. On receipt of the above
amount, Harun Rashid further transferred the money to
accused Habibur Rehman. The relevant details have been
confirmed from the concerned banks.
34. It is further alleged that an amount of INR 70,000 (through
three transactions) was also got transferred by accused
Mohsin Khan into the account of one Sameer Khilji, one
of the chicken supplier from whom accused Habibur
Rehman used to buy Chicken. It is alleged that above
payments were settled towards the outstanding payments
of accused Habibur Rehman by Sameer Khilji.
35. It is further alleged that accused Habibur Rehman also
managed to transfer the money in the account of accused
Paramjeet Kumar, his sister Ms. Kavita Bhardwaj, father
Shri Rajesh Kumar and wife Smt. Pooja through accused
accused Mohsin Khan.
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36. Money Forwarding Agents namely Bablu Patel, Sunny
Gupta and Abid have confirmed transfer of money to the
accounts of knowns of accused Habibur Rehman, accused
Paramjeet Kumar and his family members under the
directions of accused Mohsin Khan. Relevant details
proving the said transfer of money have been taken on
record from the money transfer agents, Paytm and
concerned banks etc. and concerned persons have also
been examined.
37. It is further alleged that the transfer confirmations of
money sent to the account of accused persons are shared
with accused Mohsin Khan by the Money Forwarding
Agent through WhatsApp. The same have also been taken
on record which indicates that money was being
transferred by the money forwarding agent to the accused
persons on the direction of accused Mohsin Khan.
38. That investigation further revealed that mobile bearing No.
‘7881199805’ was being used by Rana Muhammad Qasim
Zia. On scrutiny of CDR of mobile number 7881199805, it
transpired that the same was active on two different mobile
handsets having IMEIs i.e., 351632096679712 and
868502034468955 – respectively.
39. That during investigation further details of IMEI
No.868502034468955 (2nd IMEI on which mobile SIM
bearing calling number 7881199805 was used) was
obtained, which on scrutiny revealed that mobile calling
number 8905292448, was also used in the above
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IMEI/handset in which mobile number 7881199805 was
being used. It is pertinent to mentioned here that SIM of
mobile calling number 8905292448 was provided by
accused Habibur Rehman to Rana Muhammad Qasim Zia,
which he got procured on the identity of one of his known
Omparkash R/o Bikaner, Rajasthan but the alternate
number mentioned on CAF of mobile no. 8905292448 is
of the mobile No. of accused Habibur Rehman i.e.
8239078368.
40. That mobile No. 8905292448 of his Pakistan Handler Rana
Muhammad Qasim Zia was found saved in the contact list
of mobile phone of accused Habibur Rehman.
ROLE OF ACCUSED PARAMJEET KUMAR
41. Accused Paramjeet Kumar was posted as Naik Clerk with
Supply Platoon of Army Service Corps, located at
Pokhran, Rajasthan, where he met accused Habibur
Rehman. It is alleged that accused Naik Clerk Paramjeet
Kumar was supplying highly classified / confidential
information & documents to accused Habibur Rehman,
which were then forwarded by Habibur Rehman to his
PAK handler, working with Pakistan High Commission
(“PHC”), in lieu of which Habibur Rehman was paid by
PHC official. This money was then either paid in cash to
Naik Clerk Paramjeet Kumar or got deposited / transferred
either to his personal account or different accounts of his
family members.
42. That accused Naik Clerk Paramjeet Kumar was transferred
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to a highly sensitive unit of Indian army based at Agra,
Uttar Pradesh (HQ AFSOD). During this posting also, he
remained in contact with accused Habibur Rehman and
subsequently came in direct contact with the PHC official.
He was providing him the classified and confidential
documents after managing to click the photographs of the
same.
43. It is alleged that when he was deployed at HQ AFSOD,
apart from his routine work, he was performing Guard
duties at the Guard Room (main entry point of base unit
camp HQ AFSOD), on every Saturday. In this guard room,
there is one key box, in which keys of all offices of the
base unit camp (HQ AFSOD) were being kept under lock
& key. It is alleged that accused Paramjeet Kumar took /
stole the key of that key box and got prepared a duplicate
key from Agra Fort Market. The Key maker has been
examined in this regard during the investigation.
44. It is alleged that on Saturdays when he was performing
Guard Duty, he used to take out keys of the office rooms
from the key box and with these keys he used to get access
of the rooms of different officers posted with HQ AFSOD.
It is alleged that accused used to open the respective office
and take pictures of the confidential documents / classified
information and kept in these offices and onwardly
transmit the same to his handler Rana Muhammad Qasim
Zia, through WhatsApp.
45. It is further alleged that one of the mobile phones so
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recovered & seized from the possession of accused
Paramjeet Kumar viz. Mobile Phone make iPhone-6 and
various incriminating documents, Highly Confidential,
containing top secret & classified information relating to
Indian Army, detrimental to national security and
sovereignty of the country were found stored in it.
46. It is alleged that these documents were referred to the
office of the Directorate General of Military Intelligence,
Army Head Quarter for the purposes of verification. Vide
its reply Directorate of General of Military Intelligence,
replied as:
“……the documents are classified and sensitive in
nature. Since the documents are classified, any
unauthorized disclosure of content of these
documents could be expected to cause damage to
national security or could be prejudicial to the
national interest or would embarrass the Government
in its functioning……”.
47. It is alleged that one mobile number 7065104404, which
was being used by Rana Muhammad Qasim Zia, was
found saved in the contact list of mobile of accused Naik
Clerk Paramjeet Kumar as “Raj Kumar Mots”.
Investigation further revealed that this mobile number was
obtained on bogus ID. Accused Naik Clerk was sharing
classified information of Indian Army with Rana
Muhammad Qasim Zia on this mobile number. Some of
the conversations between accused Naik Clerk Paramjeet
Kumar and Rana Muhammad Qasim Zia, was also found
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stored in the WhatsApp chat of mobile of accused Naik
Clerk Paramjeet Kumar. Other numbers of above PHC
official were also found stored in the mobile phone of
accused Paramjeet Kumar.
48. That the classified documents which were recovered from
the possession of accused Habibur Rehman were also
found stored in the phone memory of accused Naik Clerk
Paramjeet Kumar.
49. It is alleged that accused Mohsin Khan who was in direct
touch with Rana Muhammad Qasim Zia, Visa Officer,
Pakistan Embassy, was handed over cash for transferring
the same to the accounts of accused Habibur Rehman &
Naik Clerk Paramjeet Kumar & his family members.
50. That money Forwarding Agents have confirmed transfer of
money to the accounts of Habibur Rehman & Naik Clerk
Paramjeet Kumar & his family members, under the
directions of accused Mohsin Khan.
ROLE OF ACCUSED MOHSIN KHAN
51. It is alleged that accused Mohsin Khan, is a resident of
Turkman Gate, Delhi, and was engaged in the business of
dealing with electronic scrap sourced from various banks.
In connection with his plans to visit Pakistan, he initially
approached the Pakistan High Commission (PHC) to apply
for a visa. During this process, he came into contact with
Rana Muhammad Qasim Zia (also known by the names
Zen Alvi @ Kamal @ Moti), a Visa Officer at the PHC. It
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is alleged that in the year 2018, accused Mohsin Khan
traveled to Pakistan, and subsequent investigation revealed
that he played a pivotal role as an intermediary. He acted
as a key link between the arrested accused individuals
namely Habibur Rehman, Naik Clerk Paramjeet Kumar
and Rana Muhammad Qasim Zia.
52. It is alleged that he maintained direct and regular contact
with the Visa Officer at the Pakistan High Commission.
During the course of their interactions, Rana Muhammad
Qasim Zia entrusted him with cash, with explicit
instructions to facilitate the transfer of funds to the bank
accounts of accused Habibur Rehman, as well as accused
Naik Clerk Paramjeet Kumar and his family members. It is
alleged that these transactions, carried out discreetly, were
intended to conceal the source and purpose of the funds.
The accused played a crucial role in executing these
financial transfers on behalf of the Visa Officer.
53. That Money Forwarding Agents had confirmed that funds
were transferred to the bank accounts of accused Habibur
Rehman, Naik Clerk Paramjeet Kumar, and members of
Paramjeet Kumar’s family under the explicit instructions
of accused Mohsin Khan, who acted as the central
coordinator in the illicit financial dealings. The agents,
acting on his directives, executed multiple transfers, the
details of which were subsequently communicated to
Mohsin Khan via WhatsApp messages as confirmation of
successful delivery. These WhatsApp communications,
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which include screenshots, transaction references, and chat
exchanges, were officially taken on record as part of the
evidence during investigation.
54. It is further alleged that the mobile number 7881199805,
actively used by Rana Muhammad Qasim Zia, was being
regularly recharged by accused Mohsin Khan. These
recharges were carried out discreetly through local mobile
recharge shops situated near his residence in Turkman
Gate, Delhi. Details of these recharges have been verified
and taken on record during investigation.
55. It is further alleged that 4 credit entries of the amount of
INR 5,000 each on the date of 02.02.2021 were found
credited through IMPS transfer from mobile No.
9990114350 in the bank account of Kavita Bhardwaj
(Sister of accused Paramjeet). As per CAF, mobile No.
9990114350, stands issued in the name of Smt. Sana
Parveen, wife of accused Mohsin Khan. As regards his
above mobile no. and handset he disclosed that the same
was destroyed by him on the instructions he received
through whatsapp call from the Zen Alvi also known as
Kamal @ Moti @ Rana Muhammad Qasim Zia (employee
of PHC) on this mobile phone after the arrest of accused
Habibur Rehman and accused Paramjeet.
56. It is further alleged that during the investigation, accused
Mohsin Khan positively identified Rana Muhammad
Qasim Zia @ Zen Alvi, the Visa Officer of PHC, as his
handler. The identification was made with reference to an
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official photograph of Rana Muhammad Qasim Zia.
57. That investigation revealed that, acting on the directions of
accused Mohsin Khan, a Money Forwarding Agent named
Bablu Patel facilitated the transfer of INR 1,10,000
through a series of five separate transactions to a business
entity named Care Chemist. located in Bikaner, Rajasthan,
and is owned by Harun Rashid who has been identified as
a childhood friend of accused Habibur Rehman.
58. It is alleged that an amount of INR 70,000, through three
separate transactions was transferred by accused Mohsin
Khan, on the instructions of accused Habib, into the bank
account of Sameer Khilji, who was regularly supplying
poultry and meat products to accused Habibur Rehman.
CONCLUSION
59. It is settled law that grave suspicion is sufficient to frame
charge against the accused persons. There are allegations
of conspiracy between the accused persons to commit the
alleged crime. The conspiracy is hatched in secrecy and the
subjective evidence of conspiracy is rarely available. It has
to be gathered from the inferring facts and circumstances.
The circumstances in the present case are sufficient to
prima facie attract the allegations of conspiracy of the
alleged offences by the accused persons. From the
evidence available on record, this courtis prima facie
satisfied that there are sufficient grounds for proceeding
against the accused persons.
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60. As regards sections 457 IPC, in the present case, as per the
prosecution case, the accused persons conspired together
and stolen the classified and sensitive documents
belonging to Indian Army, the unauthorized disclosure of
which could cause damage to the national security and
could be prejudicial to the national interest or could
embarrass the government in its functioning. The accused
Naik Clerk Paramjeet Kumar was an employee of Indian
Army and accused Habibur Rehman was the sub
contractor who was supplying consumables to the supply
platoon of Army Service Corps, located at Pokhran
Rajasthan where the accused Naik Clerk Paramjeet Kumar
was employed. It is also revealed in investigation that
accused Habibur Rehman had remained in touch with
accused Paramjeet Kumar after his transfer to Agra, UP
and there is evidence that accused Habibur Rehman had
stayed in one hotel when accused Paramjeet Kumar was
posted in Agra, UP. Accused Habibur Rehman was
intercepted on the basis of secret information and he has
been found in possession of highly classified and sensitive
documents. Such documents were also found in the phone
memory seized from the possession of accused Paramjeet
Kumar. Further, the accused Habibur Rehman, accused
Paramjeet Kumar and his family members has received
money in their accounts from the money agents who have
confirmed that they have transferred the money at the
instance of accused Mohsin Khan. The confirmation of
money transfers have been sent to the mobile phone used
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by accused Mohsin Khan. The accused Paramjeet was also
found in possession of duplicate keys of the area where the
alleged documents were kept in the army unit. The key
maker from whom the keys were prepared was also
examined during the investigation. The accused Mohsin
Khan has not got recovered his mobile phone and caused it
to disappear and thus has caused destructions /
disappearance of material evidence. The mobile number
which was allegedly used by the official of Pakistan High
Commission was allegedly arranged by accused Habibur
Rehman from one of his known and the alternate number
in the CAF form relates to accused Habibur Rehman. It is
also revealed during investigation that mobile number of
official of Pakistan High Commission was found stored in
the mobile phone of accused Paramjeet Kumar and some
whatsapp chats between them have also been found. The
investigation also reveals that the mobile phone used by
the official of Pakistan High Commission was being
regularly recharged by accused Mohsin Khan.
61. The ld. Counsel for the accused Paramjeet has argued that
he was employee of Indian Army and he had right to move
around in the unit and therefore, he cannot be liable for the
offence of trespassing. This argument of ld. Counsel does
not sound convincing as the accused could not be said to
have right to enter the premises where the classified and
confidential documents were kept. Even if he was the
employee of Indian Army, he did not have authority or
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right or permission to enter the particular area where the
documents were kept. He was found in possession of
duplicate keys which he used to access the particular area
and his entry to that area was unauthorized. Even
otherwise, the accused was admittedly having guard duty
at gate and not inside the premises where the documents
were kept.
62. The ld. Counsel for accused Paramjeet has also argued that
offence u/s 3 of the Official Secrets Act is not attracted as
the word ‘secret’ has not been used for the alleged
documents and therefore, the necessary ingredient is not
satisfied. This argument of ld. Counsel also does not hold
water as the reply of the DG of Military Intelligence would
reveal that the documents are classified and sensitive in
nature. It is also reported that any unauthorized disclosure
of content of these documents could cause damage to
national security and could be prejudicial to the national
interest. In
Ram Swaroop vs State, 1986 Crl. LJ 526 (Del),
the Hon’ble court observed that:
‘Secret information is an information which may not
be secret but relates to a matter the disclosure of
which is likely to effect the sovereignty and intergrity
of India the security of State or friendly relation with
foreign State or useful to an enemy’
63. As far as section 409 IPC is concerned, which provides for
criminal breach of trust by public servant, it is pertinent to
note that the same is attracted only when a person is vested
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with some property. In other words to bring home the
accusation u/s 409 IPC, there must be entrustment and
thereafter, misappropriation of the same. In the present
case, there are no allegations of entrustment of any
property to the accused persons and therefore, prima facie
section 409 IPC is not made out in the present case.
Reference may be made to ‘
Ramaswami Nadar vs State of
Madras’, AIR 1958 SC 56 where it was held that the word
entrusted in the section is very important unless there is
enstrustment, there can be no offence under the section.
64. Further, section 201 IPC is with respect to the destruction
of mobile phone by accused Mohsin Khan and therefore,
there is no allegation against the other accused persons
with respect to such destruction of mobile phone by
accused Mohsin Khan. Therefore, section 201 IPC is made
out against accused Mohsin Khan only.
65. Section 9 of the Official Secret Act provides that any
person who attempts to commit or abets the commission of
any offence under this act, shall be punishable. This
section pertains to the attempt and abetment of the offence
and therefore, Section 9 of the Official Secrets Act is
attracted against accused Habibur Rehman and Mohsin
Khan only.
66. In the light of aforementioned discussions, this court is of
the considered view that the following charges are made
out against the following accused persons namely:
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Sl. No. Accused Sections
1 Paramjeet Kumar U/s 120B IPC
U/s 381/457 IPC
U/s 3 OS Act r/w 120B IPC
2 Habibur Rehman U/s 120B IPC
U/s 381/457 IPC r/w 120B
IPC
U/s 3 OS Act r/w 120B IPC
U/s 9 OS Act r/w 34 IPC
3 Mohsin Khan U/s 120B IPC
U/s 381/457 IPC r/w 120B
IPC
U/s 3 OS Act r/w 120B
IPC
U/s 9 OS Act r/w 34 IPC
U/s 201 IPC
67. Now, list the matter for formal framing of aforementioned
charges against the accused persons on 26/05/2025.
(SUSHIL ANUJ TYAGI)
ASJ-04/CENTRAL/DELHI
19/05/2025(MK)
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