Delhi District Court
State vs . Inspector Sunil Jain & Ors. on 4 January, 2017
IN THE COURT OF Ms. POONAM CHAUDHRY, SPECIAL JUDGE07
(CENTRAL), (POC ACT CASES OF ACB, GNCTD), DELHI
CC No. 532393/16
State Vs. Inspector Sunil Jain & Ors.
04.01.2017
ORDER
1. A case bearing FIR No.49/14 was registered under section 7 of the Prevention of the Corruption Act (in short 'of the PC Act') by Anti Corruption Branch (in short 'ACB') against the Inspector Sunil Jain, HC Om Prakash and Ct. Kheta Ram on complaint of Mohd. Razzuddin @ Pintu stating therein that Inspector Sunil Jain, HC Om Prakash and Ct. Kheta Ram had demanded bribe from him for not implicating him in false cases. It was further stated that he had recorded their conversation through his mobile No.9899903819.
2. As per the complainant, bribe was demanded from him while he was released on interim bail in case FIR No.200/12 under section 21 Narcotic Drugs & Psychotropic Substances (in short 'NDPS Act'), PS Crime Branch for not registering case against him CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 1 under the stringent provisions of the NDPS Act and for not sending him to jail. As per the complainant, bribe money was paid to the above named accused.
3. After investigation of the case, closure report had been filed by the IO stating that evidence is not sufficient to prosecute the public servants/accused. It is also stated that the complainant had sent audio CD with his complaint on the basis of which present case was registered. It is also alleged that Inspector Meghraj who had been entrusted with the investigation of the case issued notice to the complainant to produce the original device and memory card but he did not produce the same. It is further stated that the transcription of the CD was prepared. Thereafter, further investigation was entrusted to Inspector Vinay Malik. Inspector Vinay Malik sent the CD to FSL Rohini Delhi for analysis, voice sample of the complainant and accused were taken. The report of the analysis of the voice sample revealed as under: "CD was marked ExhibitQ.I in the laboratory. The CD contained 2 files S1 and S2 marked as Q1 and Q2. The voice samples of accused Sunil Jain was sent in CD Ex.2 that of accused Om Prakash Ex.3 and accused CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 2 Kheta Ram Ex.4. The auditory analysis of recorded speech samples of speakers marked "ExhibitQ1" in CD containing files Ex. S1 revealed that voice exhibits of speaker in Ex. Q1 was similar to voice exhibits of speakers in Ex. S1 (Sunil Jain).
No opinion could be form in respect of speaker marked "ExhibitQ2" (i.e. Sh. Om Prakash) due to insufficient questioned sample.
The auditory analysis of recorded speech samples of speakers marked file "ExhibitQ3"
and "ExhibitS3" and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker marked "Exhibits Q3" are similar to the voice exhibits of speaker marked "Exhibit S3" in respect of their acoustic cues and other linguistic and phonetic features.
Hence, the voice exhibit of speakers marked "ExhibitsQ3" and "ExhibitS3" are the voice of the same person (Sh. Kheta Ram).
4. Results of Examination of the voice sample of complainant and the memory chip was as follows: "CD Marked is as marked Ex. 1 and memory chip/SD card Ex. 2. CD contained 2 audio files marked as Ex. Q1. CD of sample voice of complaint was marked as S1.
i) On laboratory examination of Micro SD card and marked "Exhibits2" using Forensic Imaging tools, it was found empty.
ii) On auditory analysis by critical listening CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 3 and subsequent waveform and spectrographic analysis of relevant audio files in CD marked "Exhibit1", there is no indication of any form of alteration.
iii) The auditory analysis of recorded speech samples of speakers marked "ExhibitQ1" and "ExhibitsS1" and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit Q1" are similar to the voice exhibits of speaker marked "ExhibitS1" in respect of their acoustic cues and other linguistic and phonetic features. Voices Ex. Q1 and Ex. S1 were of complainant/Razuddin."
5. It is further stated that the complainant was asked to produce the original device. The complainant however informed that the original device through which recording had been made had been damaged and was in possession of his wife.
6. It is further stated that during the course of investigation, the memory card was produced by Smt. Shabana wife of the complainant which was seized. It is further alleged that wife of the complainant informed that the original instrument had been damaged and lost.
7. It is also stated that during the investigation, the police officials/accused persons were interrogated and they denied the CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 4 allegations made by complainant and also denied their voices in the CD. Accused further disclosed that complainant was arrested in case of FIR No.200/12 under section 21 NDPS Act, PS Crime Branch and he had filed a complaint with ulterior motive to put pressure on the accused as they had investigated the case.
8. It is also submitted that in the absence of original device, the compatibility of the mobile phone used for recordings and the card cannot be proved. It is also stated that memory card was sent to FSL and was found empty without any recordings. It is also stated that CD was also not accompanied with the certificate under section 65B of the Indian Evidence Act, 1872 (in short 'of the Evidence Act'). In this regard, it is relevant to refer to a decision of Hon'ble High Court in case titled Kundan Singh Vs The State CRL.A 711/2014 decided on 24.11.2015 as follows:
30. We would now refer to the legal position and what is admissible and proved by the prosecution. We begin by examining the statutory provisions. Section 3 of the Evidence Act in subsection (2) stipulates that documentary evidence means and includes all documents including "electronic record"
produced for the inspection of the Court. By way of amendment to the Evidence Act, CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 5 incorporated by Act, No. 2 of 2000, the following inserted:
"The expression "certifying Authority", "Digital Signature", "Digital Signature Certificate", "Electronic form", " electronic records"', "information", "Secure electronic records", "secured digital signature and "subscriber" shall have the meanings respectively assigned to them in the Information Technology Act, 2000".
Section 2(c) of the Information Technology Act, 2000 reads "Electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro record".
"Section 22A of the Evidence Act reads as follows:
"22A. When oral admission as to contents of electronic records are relevant. Oral admission as o the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question."
Section 45A of the Evidence Act reads as follows;
"45A. Opinion of Examiner of Electronic Evidence - When a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79 CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 6 A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.
31. It is specifically deals with relevancy oral admissions as to the contents of an electronic document and was inserted w.e.f. 17.10.2000 by the Information technology Act, 2000. The object of providing said provision recognized that the evidence relating to genuineness or "reliability 65 B of the Evidence Act. Thus, Section 22A specifically provides that when genuineness of an electronic record is in question, oral admission are relevant and could be examined. As notices below, it states and records te obvious.
39. Controversy has arisen whether a certificate under subsection 94) to Section 65B must be issued simultaneously with the production of the computer output or a certificate under Section 65B can be issued and tendered when the computer output itself is tendered to be admitted as evidence in the court or as in the present case by the official when he was recalled to give evidence. In Anwar P. V. (S) v P. K. Basheer and ors. the Supreme Court has held as under: "15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 7 evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence.
Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."
40. The expression used in the said paragraph is when the electronic record is "produced in evidence". Earlier portion of the same sentence emphasises rge importance of certificate under section 65B and the ratio mandates that the said certificate must accompany the electronic record when the same is "produced in evidence". To us, the aforesaid paragraph does not postulate or propound a ration that the computer output when reproduced as a paper print out or on optical or magnetic media must be simultaneously certified by an authorised person under subsection (4) to section 65B. This is not so stated in Section 65B or sub section (4) thereof. Of course, it is necessary that the person giving the certificate under subsection (4) to section 65B should be in a position to certify and state that the electronic record meets the stipulations and conditions mentioned in subsection (2), identify the electronic record, describe the manner in which "computer" was produce and also give particulars of the device involved in CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 8 production of the electronic record of the purpose of showing that the electronic record was prepared by the computer. The aforesaid legal ration, in our opinion, gets affirmation from paragraphs 20 and 21 of the judgment in Anwar P. V. (supra) which read as under: Irrespective of the compliance with requirement of Section 65B, which is provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and
65. It may be that the certificate containing the details in subsection (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Section 63 and
65."
41. As far back as 1931, the Lahore High Court in Baldeo Sahai Ram Chander and Ors, IAR 1931 Lahore 546 had stated: "There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in court. The next stage is when the documents proved and formally tendered in evidence. It is at this later stage that the court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the court is put on them giving certain details laid down by law, otherwise the documents are resumed to the party who produced them with CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 9 an endorsement thereon to that effect."
42. The aforesaid judgment was quoted with approval in Sudhir Engineering Company v Nitco Roadways ltd. 1995 934) DRJ 86 wherein it was observed as under:
"Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are: first stage: when the documents are filed by either party in the court; these documents through on file, do not become part of the judicial record; second stage: when the documents are tendered or produced in evidence by a party and the court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence. Third stage: the documents which are held proved, not proved or disproved when the court is called upon to apply its judicial mind by reference to section 3 of the Evidence Act. Usually this stage arrives 31 the final hearing of the suit of proceeding."
43. Anwar P. V. (supra) partly overruled the earlier decision of the supreme Court on the procedure to prove electronic record (s) in Navjot Sandhu (supra), holding that Section 65B is a specific provision relating to the admissibility of electronic record (s) and therefore, production of a certificate under Section 65B (4) is mandatory. Anwar P. V. (supra) does not state or hold that the said certificate cannot be produced in exercise of CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 10 powers of the trial court under Section 311 Cr. P. C or at the appellate stage under section 391 Cr. P. C. Evidence Act is a procedural law and in view of the pronouncement in Anwar P. V. (supra) partly overruling Navjot Sandhu (supra), the prosecution may be entitled to invoke the aforementioned provisions, when justified and required. Of course, it is open to the court/presiding officer at that time to ascertain and verify whether the responsible officer could issue he said certificate and meet the requirements of section 65B.
9. Thus, the certificate under section 65B(4) of the Evidence Act can be produced when the documents is tendered in court. In my view, the contents of the complaint and material on record clearly show involvement of all the above public servants/accused.
The transcript of the recorded conversation shows existence of conspiracy between the accused who are the public servants for obtaining illegal gratification other than legal remuneration from the complainant for doing or forbearing to do an official act.
10. It is well settled to take cognizance of the all the offences and summoning of accused, the court is only required to see whether the material on record is sufficient to proceed further in the matter. At this stage, court is not required to analysis the CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 11 evidentiary value of the same with view to find out if the evidence and material would be sufficient to frame charge against the accused or convict them. In this regard it has also been held in Sonu Gupta Vs Deepak Gupta & Ors. (2015) 3 Supreme Court Cases 424 as follows: Criminal Procedure Code, 1973 - Sections 204 and 190 - Issuance of process - Summoning of accused - Matters to be considered by magistrate - Consideration of defence version. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of offence - At this stage Magistrate is not requited to consider the defence version or materials or arguments nor is he required to evaluate the merits of the material or evidence of the complainant.
Held:
At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind and only with a view to take cognizance of the offence, or , in other words, to find out whether primafacie case has been made out for summoning of the accused persons. At this stage, the Magistrate is not required to consider the defence version or material or arguments nor is he required to evaluate the merits of the materials of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 12 materials will lead to conviction or not.
At the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against the particular accused. But such exercise is required only at a later stage and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. Even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that the case of both the sides may be considered appropriately on conclusion of trial.
11. As regards the submission of IO, the accused on interrogation denied the allegations made by the complainant. It is significant to note that at the stage of cognizance, court is not required to consider the defence version or the submissions advanced by accused or evaluate the material or evidence on record.
CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 13
12. Thus, I am of the view that the material on record and forensic report are sufficient to proceed further in the matter against public servants for the offence under section 7 and 13 (1)
(d) of PC Act Punishable under section 13 (2) and 120 (b) IPC.
However, previous sanction under section 19 is required before this court can take cognizance of the offences and proceed against above public servants.
13. IO had not obtained sanction as he had filed the closure report instead of charge sheet. Accordingly, IO is directed to approach the concerned authority and place the material collected during the investigation before them.
14. For the foregoing reasons, the case/matter is sent for further investigation.
Announced in the open court on this 4th day of January 2017 (Poonam Chaudhry) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi CC No. 532393/16 State Vs. Inspector Sunil Jain & Ors. 14