Delhi District Court
Cc No.385/19 Cbi vs . Anil Kumar & Anrs. Page 1 Of 81 on 11 July, 2022
IN THE COURT OF ANURAG SAIN, SPECIAL JUDGE (P C ACT)
(C B I)11, ROUSE AVENUE COURT COMPLEX, DELHI
CC No.: 385/19
FIR No.: RC 2(A)/2009/CBI/ACUVI/NEW DELHI Dated 10.06.2009
U/s : 120 IPC read with 13(2) read with 13 (1)(d) of PC Act, 1988
CNR No.: DLCT110015112019
Central Bureau of Investigation
Versus
1. Anil Kumar (Accused No.1)
S/o Sh. Siya Ram Sharma
Occupation : The then Assistant Engineer,
Municipal Corporation (MCD), South Park.
Present Address:
C764, JBTS Garden,
Chattarpur Extension, Delhi74.
Permanent Address:
VillageBasantpur,
POShakurabad,
PSAmait,
DistrictJahanabad,
Bihar
2. Surendra Kumar (Accused No.2)
S/o Sh. Yamuna Prasad,
Occupation : The then Junior Engineer,
Municipal Corporation (MCD), South Park.
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 1 of 81
Present Address:
11/2, Sector1, Pushp Vihar,
New Delhi.
Permanent Address:
WZ96A, Om Vihar PhaseI,
New Delhi
3. Jasbeer Singh Deshwal (Accused No.3)
S/o Late Sh. Sube Singh
Occupation: Civil Contractor
Present Address:
E141, Chhattarpur Extension,
New Delhi
Permanent Address:
Block No. A2,
Building No. 7,
Chhattarpur Extension,
New Delhi
4. Pavitar Singh (Accused No.4)
S/o Late Sardar Saroop Singh
Occupation : Business
R/o 216/A2, Gautam Nagar
(Behind AIIMS), New Delhi
5. Sarabjit Singh (Accused No.5)
S/o Late Sh. Sardar Singh,
Occupation : Business
R/o P6A, Hauz Khas Enclave,
New Delhi
6. Washim Khan (Accused No.6)
S/o Sh. Mohd. Shariff
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 2 of 81
Occupation : Building Contractor
R/o 51, Hauz Rani, Malviya Nagar,
New Delhi110017
Date of FIR : 10.06.2009
Date of filing of chargesheet : 28.09.2010
Arguments concluded on : 06.06.2022
Date of Judgment : 11.07.2022
Appearance
For Prosecution : Sh.Avanish Kumar Chand, Ld. P.P. for the
CBI.
For accused persons : Sh.Prabhat Kumar, Ld.Counsel for accused
no.1 Anil Kumar.
: Sh. M.P. Singh, Ld.Counsel for accused No.2
Surendra Kumar.
: Sh. M. P. Singh and Sh. Falak Mohammad,
Ld. Counsels for accused No.3 Jasbeer Singh
Deshwal.
: Ms Seema Gulati, Ld. Counsel for accused
No.4 Pavitar Singh.
: Sh. Amit Sharma, Ld. Senior Advocate for
accused No. 5 Sarabjit Singh.
: Sh. Falak Mohammad, Ld. Counsel for
accused No. 6 Washim Khan.
JUDGMENT
FACTUAL MATRIX OF THE PROSECUTION CASE IN BRIEF
1.Brief facts of the present case are that on the basis of the source information, FIR in the instant case was registered by the CBI CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 3 of 81 against the accused persons namely Anil Kumar, Surendra Kumar, Jasbeer Singh Deshwal, Pavitar Singh, Sarabjit Singh and Washim Khan. The main allegations in the chargesheet are that unauthorized constructions were taking place in the South Zone, New Delhi under the patronage of MCD Officials in collusion with plot owners/builders by accepting illegal gratification per floor from the concerned owners/builders. It is further the case of the CBI that unauthorized construction by private persons were carried out in Ward No. 174 Chhattarpur Extension, New Delhi in connivance with Anil Kumar (AE), Sunil Dawar (AE) and Surendra Kumar (JE) despite the fact that no construction was allowed in the aforesaid ward in terms of the order dated 20.08.2001 issued by the office of MCD Commissioner vide which standing instructions were given for the inspection of unauthorized construction in the respective area which was to be carried out by the JE, AE and EE in 7 days, 15 days and 30 days respectively and the inspection reports mentioning the visited areas and any unauthorized construction detected, if any, were to be submitted to the higher officers in hierarchy.
As per the facts disclosed in the charge sheet that in a Civil Writ Petition No. 4771/1993 titled as Common Cause Vs. Union of India, the Hon'ble High Court of Delhi vide order dated 03.11.1993 has issued certain directions in respect of unauthorized construction in Delhi and directed that in case any unauthorized CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 4 of 81 construction is noticed in the unauthorized colonies, not only the person constructing, namely, the owners of the unauthorized constructions but others also, who directly or indirectly aid and assist unauthorized constructions particularly, the builders/contractors/architects/junior engineers and Station House Officers would be severely dealt with in case of unauthorized construction activity is noticed in violation of the Order of the Hon'ble High Court of Delhi, besides, the officers would also be liable for departmental action.
Investigation has further revealed that in reference to the directions issued by the Hon'ble High Court of Delhi, the Commissioner of the MCD had issued a circular No. D/401/Addl.CM(E)/1997 dated 13.11.1997 to curb the unauthorized construction in Delhi. As per the office order dated 12.09.2008 No. PSC/716/2008 dated 12.09.2008 issued by the Commissioner of the MCD, the detection of unauthorized construction at the first level shall be carried out by the Junior Engineers and Assistant Engineers of the concerned zone under the supervision of Executive Engineers. The order further directed that JE of each ward of the zone would every month issue a certificate under his signature certifying that there is no unauthorized construction or encroachment of the Government/Municipal land in his zone. Junior Engineer should also give a certificate regarding the ongoing unauthorized construction and encroachment and CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 5 of 81 action taken thereof under the provisions of the MCD Act.
The investigation further revealed that as per the Revenue Department of Government of NCT, Delhi, Plot Nos. A360, B60 and B322, Chhattarpur Extension which come under village Chhattarpur, Ward No. 174, New Delhi are agricultural land on which no construction was permitted and the Patwari and the Tehsildar of Hauz Khas Mehrauli, New Delhi have proved that Chhattarpur Extension area is an agricultural land and no construction is permitted thereon.
As per the chargesheet, Plot No. A360 in ward No. 174 Chhattarpur Extension, New Delhi has two portions viz one portion of 200 sq. yards is owned by A3 Jasbeer Singh Deshwal and second portion of 160 sq. yards is owned by Sh. Nagendra and A3 Jasbeer Singh Deshwal. The CBI had conducted the inspection there on 11.06.2009 in the presence of independent witnesses and found the building on Plot No. A360 under construction.
Investigation further revealed that Plot No. B60 in Ward No. 174 is in the name of A5 Sarabjit Singh and the residents of neighboring plots have proved that unauthorized construction at Plot No. B60 was started by A5 Sarabjit Singh in January, 2009 and was under construction till June, 2009 when the CBI had conducted the inspection. Investigation further revealed that Ran Singh beat constable of Chhattarpur Extension area had reported the unauthorized construction at Plot No. B60 to the Police Station CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 6 of 81 Mehrauli and an intimation dated 24.02.2009 under the signatures of SHO was sent to Deputy Commissioner, MCD, South Zone and copies were sent to SDM Hauz Khas, Additional DCP South and ACP, Mehrauli etc. at the time of inspection on 11.06.2009 conducted by the CBI, it was disclosed that a three storey building belongs to A5 Sarabjit Singh was being constructed under the supervision of A4 Pavitar Singh who was actively involved in the unauthorized construction at Plot No. B60, Ward No. 174.
It was further revealed during investigation that Plot No. B 322 belongs to one Smt. Neeraj Maan and A6 Washim Khan made three storey construction thereupon between January to June 2009 while retained 2nd floor being building contractor and has also assured Smt. Neeraj Maan to get approval and necessary permission for construction from all the concerned authorities.
As per the chargesheet after the inspection conducted by the CBI on 11.06.2009, Building Division of MCD South Zone, Green Park, New Delhi registered FIRs of Plot No. A360, B60 and B 322 all falling in Ward No. 174 Chhattarpur Extension, New Delhi for unauthorized construction and passed the orders for demolition and sealing of the constructions made on the said plots.
According to the chargesheet A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) did not submit inspection report of Ward No. 174 (Chhattarpur Extension) during the period from January 2009 to June 2009 regarding unauthorized construction taking place in CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 7 of 81 that area. Further unauthorized construction was going on at Plot No. A360, B60 and B322 during the period from January 2009 to June 2009 but A2 Surendra Kumar, JE never reported this fact in his monthly reports. Instead of reporting the unauthorized construction in the areas of A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) as per the standing orders dated 12.09.2008 issued by Commissioner MCD, false report was submitted that no unauthorized construction was being carried out at the plots mentioned above which shows that A1 Anil Kumar and A2 Surendra Kumar had allowed the unauthorized construction by abusing their official positions as public servants.
The chargesheet has further revealed that A2 Surendra Kumar (JE) in connivance with A1 Anil Kumar (AE) prepared and forwarded false monthly reports to the higher authorities knowingly well that the same are false and were aware that the reports do not contain the details of unauthorized constructions of Plot No. A360, B322 and B60 and thereby benefited the accused persons namely Jasbeer Deshwal, Sarabjit Singh and Washim Khan. By abusing the official position, A2 Surendra Kumar (JE) issued false certificate under his signatures that unauthorized construction was not going on in the area and thereby caused pecuniary advantage to himself and the plot owners.
As per the chargesheet A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) were illegally gratified by A3 Jasbeer CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 8 of 81 Deshwal, A5 Sarabjit Singh and A6 Washim Khan so that they may be allowed for erecting the building on the aforesaid plots.
2. After completion of the investigation, the instant chargesheet was filed by the CBI on 28.09.2010 against the accused persons namely A1 Anil Kumar AE, MCD South Zone Building, Green Park, New Delhi, A2 Surendra Kumar, the then JE, MCD South Zone Building, Green Park, New Delhi, A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan for the offences under Section 120B IPC r/w Section 13(2) r/w Section 13(1) (d) of PC Act 1988 and vide order dated 13.10.2010, the court took cognizance of the aforesaid offences against all the accused persons.
CHARGE
3.In terms of order dated 12.08.2011 passed by the court, a charge for the commission of offence of criminal conspiracy punishable under Section 120B IPC r/w Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 was framed against all the accused persons and a substantive charge for the commission of offence punishable under Section 13(2) r/w Section 13(1) (d) of the Prevention of Corruption Act, 1988 was framed against A1 Anil Kumar and A2 Surendra Kumar, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 9 of 81
4.To connect the arraigned accused persons with the offences charged, the CBI in total has examined forty six witnesses viz Sh. K.S. Mehra, Commissioner, MCD, Delhi as PW1, Sh. Amar Nath, Administrator, Union Territory, Lakshadeep as PW2, Sh. Amarjeet Singh as PW3, Sh. Balindra Kumar Singh @ Sh. B.K. Singh as PW4, Sh. Bhawani Deen as PW5, Sh. Charan Prakash as PW6, Sh. Kiran Pal as PW7, Dr. Sudeep Jain as PW8, Sh. Devender Kumar Sharma as PW9, Sh. Hari Om as PW10, Sh. Kaptan Singh as PW11, Sh. M.K. Mathur as PW12, Sh. Mohan Lal as PW13, Sh. Rajiv Kumar Sharma as PW14, Sh. Narendra Singh as PW15, Sh. Nagendra Singh as PW16, Sh. Harender Singh as PW17, Sh. Dinesh Kumar as PW18, Ms Neeraj Maan as PW19, Sh. Sunny Singh as PW20, SI Gajraj Singh as PW21, Sh. Sunder Lal as PW22, Sh. Rajeev Kumar Singh as PW23, Sh. Sanjay Kumar as PW24, HC Ran Singh as PW25, Sh. Samir Sharma as PW26, Sh. Gopi Chand as PW27, Sh. Gyan Chand as PW28, Sh. S.K. Midha as PW29, Smt. Gursharan Kaur as PW 30, Constable Ved Prakash as PW31, Sh. Harminder Pal Singh Rehal as PW32, Sh. Raj Kumar Thakur as PW33, Sh. Ram Yadav as PW34, Sh. Rajan Tripathi as PW34A, Sh. Raj Singh @ Raje as PW35, Sh. Tulsi Dass as PW36, Sh. Raj Kumar Sharma as PW37, Sh. Anil Sharma @ Rahul Sharma as PW38, Dr. Kirpal Singh as PW39, Sh. Yasir Arfat as PW40, Sh. Rajpal Singh as PW41, Sh. Suresh Kumar Gera as PW42, Sh. P.D. Ashok as PW CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 10 of 81 43, Sh. Anil Kumar Aggarwal as PW44 and Sh. S.C. Doria as PW45.
5.After examining the aforesaid witnesses, on the statement of Ld. Public Prosecutor for the CBI, the prosecution evidence was closed by the court on 19.05.2014.
STATEMENTS OF ACCUSED PERSONS
6.Thereafter, statements of the accused persons under Section 313 Cr.P.C. were recorded wherein all the incriminating evidence on record were put to them to which they pleaded their innocence and false implication and sought to lead defence evidence.
DEFENCE EVIDENCE
7.A1 Anil Kumar examined three witnesses in his defence namely Sh. Arun Kumar Singh as DW1, Sh. Amar Singh as DW2 and Sh. Rajander Kumar Sharma as DW5 whereas A2 Surendra Kumar examined two witnesses in his defence namely Sh. Ashok Kumar as DW3 and Sh. Satya Pal as DW4. After examining these witnesses, vide orders dated 26.09.2014 and 16.09.2014, the court closed defence evidence on behalf of A1 Anil Kumar and A2 Surendra Kumar on the separate statements of their Learned counsels. A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan did not lead any evidence in their defence and gave separate statements before the court on 16.09.2014 for not leading defence evidence.
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 11 of 81ARGUMENTS
8.I have heard the arguments as advanced by Learned Public Prosecutor for the CBI and by Learned counsels for the accused persons. I have also perused the record including the evidence and also given thoughtful consideration to the rival contentions. I have also gone through the written submissions filed on behalf of the CBI and the accused persons.
APPRECIATION OF FACTS, EVIDENCE, DOCUMENTS AND ARGUMENTS AND FINDINGS THEREUPON
9.The core question that needs to be seen is as to whether there is sufficient legal evidence on record for the prosecution to prove its case beyond reasonable doubt against the arraigned accused persons for the charged offences.
10.It is settled law that in a criminal trial the prosecution has to prove its case beyond reasonable doubt and that the story of the prosecution must stand on its own two feet. The onus of proof cannot be shifted on the accused persons.
11.The Hon'ble Supreme Court of India in a case titled as R.K. Dey Vs. State of Orrisa AIR 1977 SC 170 has held that: "Three cardinal principle of criminal jurisprudence are well settled namely:
(i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defense version CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 12 of 81 while proving this case;
(ii) that in the criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and
(iii) that onus of prosecution never shifts."
12.From the abovesaid case law, it is clear that it is not at all obligatory on the accused persons to produce evidence in support of their defence and that for the purpose of proving their versions, they can rely on the admissions made by the prosecution witnesses or on the documents filed by the prosecution. The prosecution has to stand on its own legs, and if it fails to prove its case beyond reasonable doubt, the entire edifice of the prosecution would crumble down.
13.Before adverting further, the court shall deal with the contentions raised by Ld. Counsels for A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) whether PW1 Sh. K.S. Mehra and PW2 Sh. Amar Nath respectively were not competent to accord sanctions for prosecution against A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) and that whether the sanctions for prosecution of A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) have been accorded by them without application of mind.
14.Ld. Public Prosecutor for the CBI argued that A1 Anil Kumar and A2 Surendra Kumar were the public servants being Assistant Engineer and Junior Engineer with MCD, Delhi and valid sanctions were accorded against A1 Anil Kumar and A2 Surendra Kumar by PW1 Sh. K.S. Mehra, Commissioner, MCD, Delhi and CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 13 of 81 PW2 Sh. Amar Nath, the then Special Officer in Delhi Urban Shelter Improvement Board, Govt. of NCT, Delhi who were competent authorities and the same have been accorded with due application of mind.
15.On the other hand, Ld. counsel for A1 Anil Kumar argued on the lines of the written arguments filed before the court that the power to appoint group 'B' Engineers vests with the Corporation (Standing Committee) and not with the Commissioner and thus, the purported sanction granted by PW1 Sh. K.S. Mehra, Commissioner, MCD, Delhi against A1 Anil Kumar (AE) was void ab initio in the eyes of law. He further argued that the sanction against A1 Anil Kumar (AE) was granted mechanically by PW1 Sh.K.S. Mehra without application of mind inasmuch as in the sanction order dated 25.08.2010 exhibited as Ex. PW1/A, only the name of A1 Anil Kumar (AE) ought to have been mentioned by PW1 Sh. K.S. Mehra but he has mentioned in the sanction order that the acts, omissions and commissions on the part of all the accused persons in the present case constitute offences punishable under Section 120 B IPC r/w 13 (2) r/w 13 (1)(d) of PC Act, 1988 which clearly showed that he has granted sanction against A1 Anil Kumar (AE) without going through the records as well as without application of mind and simply signed the draft sanction order sent by the CBI to him.
16.Ld. counsel for A2 also argued that PW2 Sh. Amar Nath, the then CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 14 of 81 Special Officer in Delhi Urban Shelter Improvement Board, Govt. of NCT, Delhi was not competent to accord sanction against A2 Surendra Kumar (JE) and the same has been accorded without application of mind.
17.In order to prove the sanctions, the CBI has examined PW1 Sh. K.S. Mehra, Commissioner, MCD, Delhi, the witness who had accorded sanction for prosecution against A1 Anil Kumar (AE) and he, in his deposition before the court deposed that in MCD, Commissioner MCD is the disciplinary authority for the officers of the rank of Assistant Engineers and is competent to grant sanction for prosecution and he being the Commissioner, MCD, granted sanction for prosecution against A1 Anil Kumar, Assistant Engineer vide sanction order dated 25.08.2010 exhibited as Ex. PW1/A.
18.During entire cross examination of PW1 Sh. K.S. Mehra, Commissioner, MCD, Delhi, A1 Anil Kumar (AE) did not dispute that PW1 Sh. K.S. Mehra was not competent to accord sanction for prosecution against him inasmuch as not even a single question in this regard was put to this witness. The argument of Ld. Counsel for A1 Anil Kumar (AE) in this regard does not hold water inasmuch as except the bald averments of the Ld. Counsel for A1 Anil Kumar, there is nothing on record in the shape of documentary evidence to substantiate his arguments more particularly when he did not cross examine PW1 Sh. K.S. Mehra CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 15 of 81 in this regard to demolish the truthfulness of the veracity of this witness before the court.
19.From the deposition of PW1 Sh. K.S. Mehra, Commissioner, MCD, Delhi and the material on record, it is evident that he was the highest disciplinary authority in MCD being Commissioner and could remove A1 Anil Kumar being Assistant Engineer from his services. Thus, he was the competent authority to accord sanction for prosecution against A1 Anil Kumar (AE) and hence there is no force in the contention of the Ld. counsel for A1 Anil Kumar (AE).
20.As regards A2 Surendra Kumar (JE), the prosecution has examined PW2 Sh. Amar Nath, Administrator, Union Territory, Lakshadeep, the witness who accorded sanction for prosecution against A2 Surendra Kumar (JE). He deposed before the court that from July 2010 to July 2011, he was posted as Special Officer in Delhi Urban Shelter Improvement Board and A2 Surendra Kumar was the employee of Delhi Urban Shelter Improvement Board, Govt. of NCT Delhi and was working in diverted capacity as Junior Engineer in MCD, Delhi. He further deposed that he, being the Special Officer of Delhi Urban Shelter Improvement Board, Govt. of NCT Delhi, was the competent disciplinary authority in respect of the Officers of the rank of Junior Engineers and all other employees of the said Board and thus, granted sanction for prosecution against A2 Surendra Kumar (JE) vide sanction order CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 16 of 81 dated 04.10.2010 exhibited as Ex. PW2/A.
21.During entire cross examination of this witness, not even a single question was put by A2 Surendra Kumar (JE) to PW2 Sh. Amar Nath to the effect that PW2 Sh. Amar Nath was not competent to accord sanction for prosecution against A2 Surendra Kumar (JE). This witness denied the suggestion put to him by A2 Surendra Kumar (JE) that he was not competent authority to grant sanction for prosecution and even voluntarily deposed that the powers were conferred upon the Special Officer of Delhi Urban Shelter Improvement Board in Delhi Urban Shelter Improvement Board Act, 2010 itself which was passed by the Legislative Assembly of NCT of Delhi.
22.From the deposition of PW2 Sh. Amar Nath and the material on record, it is evident that he was the competent disciplinary authority in Delhi Urban Shelter Improvement Board, Govt. of NCT, Delhi being Special Officer and could remove A2 Surendra Kumar being Junior Engineer from his services. Thus, he was the competent authority to accord sanction for prosecution against A2 Surendra Kumar (JE) and hence there is no force in the contention of the Ld. counsel for A2 Surendra Kumar (JE).
23.The next question is whether the sanctions for prosecution against A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) were accorded by PW1 Sh. K.S. Mehra and PW2 Sh. Amar Nath without application of mind.
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 17 of 8124.The law relating to accord of sanction is well settled by the Hon'ble Supreme Court of India in a case titled as State of Maharashtra through CBI Vs. Mahesh G. Jain, 2013 Crl.L.J 3092, wherein it has been held that: "13. From the aforesaid authorities the following principles can be culled out:
(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 18 of 81(g) The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity".
25.PW1 Sh. K.S. Mehra, Commissioner, MCD, Delhi categorically deposed in his deposition before the court that the report of the investigation, statement of witnesses and other material on record were put up before him and after considering the material on record and satisfying himself about the case, he granted sanction for prosecution against A1 Anil Kumar (AE). The cross examination of this witness also reflects that before granting the sanction, he perused the record to assess what was the case all about.
26.Similarly Sh. Amar Nath, IAS, the then Special Officer, Delhi Urban Shelter Improvement Board, Govt of NCT of Delhi when examined before the court as PW2 categorically deposed that after consideration of the material place before him and satisfying himself about prima facie case, he granted sanction for prosecution against A2 Surendra Kumar (JE). During entire cross examination, A2 Surendra Kumar (JE) could not impeach the testimony of this witness and this witness has denied the suggestions put to him by A2 Surendra Kumar (JE) viz except the request letter of CBI and the draft of sanction order, no other document/material was placed before him or was considered by him and or that the sanction for CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 19 of 81 prosecution was granted by him mechanically without applying his own independent wisdom and he just signed the draft sanction order sent to him by the CBI.
27.In the facts of the matter and from the testimonies of the sanctioning authorities namely PW1 Sh. K.S Mehra, Commissioner, MCD, Delhi and PW2 Sh. Amar Nath, the then Special Officer, Delhi Urban Shelter Improvement Board, Govt. of NCT, Delhi, it is culled out that only after being satisfied themselves that a case for sanction was made out, PW1 Sh. K.S Mehra, Commissioner, MCD, Delhi and PW2 Sh. Amar Nath, the then Special Officer, Delhi Urban Shelter Improvement Board, Govt. of NCT, Delhi have accorded the elicited sanctions for prosecution vide sanction orders Ex. PW1/A and Ex. PW2/A against A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) respectively and the same is also apparent from the bare reading of the sanction orders Ex. PW1/A and Ex. PW2/A that the sanctioning authority PW1 Sh. K.S Mehra, Commissioner, MCD, Delhi has fully and carefully examined all the facts and circumstances of the case as well as the material including the statements of the witnesses recorded under Section 161 Cr.P.C. and the documents placed before him in this regard and also that the sanctioning authority PW2 Sh. Amar Nath, the then Special Officer, Delhi Urban Shelter Improvement Board, Govt. of NCT, Delhi has fully and carefully examined the evidence placed before him including CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 20 of 81 the SP's Report and other documents.
28.The argument of Ld. Counsel for A1 Anil Kumar (AE) that PW1 Sh. K.S. Mehra has simply signed the draft sanction sent to him by the CBI, is misconceived. No fault can be found with the Sanction Order Ex.PW1/A. Even if Sanction Order proved as Ex.PW1/A is a copy of the draft Sanction, it is no reason to discard the Sanction Order. The Draft Sanction Order is an expression/format in which the Sanction Order is prepared. The concerned branch preparing Draft Sanction is well equipped and trained with the expression to be used to actual sanction as required for prosecution of the accused from the Competent Authority. If the Competent Authority is following the Draft Sanction after going through the entire record then it would not render Sanction Order bad under the law. The prosecution is to prove through evidence of Competent Authority that Sanction was accorded by him after going through the record and application of mind and it has been so deposed by PW1 in the instant case. Hence, the challenge made to the Sanction Order Ex.PW1/A by A1 Anil Kumar (AE) is rejected.
29.The sanction orders, on their face, indicate that all relevant material were placed before the sanctioning authorities at the time of according of sanctions. It is discernible from the recital of the sanction orders that the sanctioning authorities had perused all the material and prima facie reached to the conclusion. In terms of the law laid in the case of State of Maharashtra through CBI Vs. CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 21 of 81 Mahesh G. Jain (Supra), it is proved on record that the Sanctioning Authorities prima facie reached to the satisfaction that the relevant facts constituted the offences in question. Even otherwise, sanction orders are not to be construed either in pedantic manner or by any hypertechnical approach to test their validity. Hence, it is proved on record that the sanction orders Ex. PW1/A and Ex. PW2/A vide which sanctions for prosecution were accorded against A1 Anil Kumar (AE) and A2 Surendra Kumar (JE), were valid.
30.The present case pertains to unauthorized constructions on Plot Nos. A360, B60 and B322 in Ward No. 174, Chhattarpur Extension, Delhi. Plot No. A360 is having two portions i.e. one portion of 200 sq. yds. whose owner is A3 Jasbeer Singh Deshwal and the second portion of 160 sq. yds. is jointly owned by A3 Jasbeer Singh Deshwal and Sh. Nagendra Singh. A5 Sarabjit Singh is the owner of Plot No. B60 and Smt. Neeraj Maan is the owner of Plot No. B322. Their ownerships have been proved on record by the CBI by examining the witnesses viz for Plot No. A 360 PW6 Charan Prakash, PW11 Sh. Kaptan Singh and PW18 Sh. Dinesh Kumar, for Plot No. B60 PW3 Sh. Amarjeet Singh and PW30 Smt. Gursharan Kaur and for Plot No. B322 PW17 Sh. Harender Singh and PW19 Smt. Neeraj Maan.
31.Qua Plot No. A360, PW6 Charan Prakash was the witness who deposed that he along with his brother Sh. Brahm Prakash sold out CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 22 of 81 plot measuring area 160 sq. yds. to A3 Jasbeer Singh Deshwal and PW16 Sh. Nagendra Singh vide documents viz GPA, Agreement to Sell, Wills, Affidavit and Possession Letter exhibited as Ex. PW6/A to Ex. PW6/F. Sh. Nagendra Singh was examined by the CBI as PW16 whose deposition reflects that his half share of the said property of 160 sq. yds. was also purchased by A3 Jasbeer Singh Deshwal for a consideration of Rs.18 Lac out of which a sum of Rs. 10 Lac in cash was paid by A3 Jasbeer Singh Deshwal to this witness. However, except his bald averment, there is nothing on record in the shape of documentary evidence to prove that his aforesaid share was ever purchased by A3 Jasbeer Singh Deshwal inasmuch as it is admitted case of P16 Nagendra Singh in his deposition before the court that he had not executed any document when he had received Rs. 10 Lac from A3 Jasbeer Singh Deshwal. Hence, A3 Jasbeer Singh Deshwal and Sh. Nagendra Singh are the joint owners of 160 sq. yds. part of Plot No. A360. Other witness PW11 Sh. Kaptan Singh deposed that he and one Sh. Dinesh Singh were the joint owners of plot measuring area 200 sq. yds. part of Plot No. A360 which they sold out to Jasbeer Singh Deshwal (A3) vide sale documents viz Agreement to Sell, GPA, Affidavit, Receipt of payment, Will and Possession Letter exhibited as Ex. PW11/A1 to Ex. PW11/A5 respectively which were seized by the CBI vide seizure memo Ex. PW11/B. The testimony of PW11 Sh. Kaptan Singh also finds CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 23 of 81 support from the testimony of Sh. Dinesh Singh who, when entered in the witness box as PW18, also deposed that he alongwith Kaptan Singh sold out property measuring 200 sq. yds. to Jasbeer Singh Deshwal (A3) vide aforesaid documents including photocopy of Affidavit Ex. PW18/A.
32.As regards Plot No. B60, PW3 Sh. Amarjeet Singh was the witness who deposed that initially the plot was jointly owned by his father Sh. Gurcharan Singh and his uncle A5 Sarabjit Singh but lateron his father Sh. Gurcharan Singh sold his share to A5 Sarabjit Singh and proved the GPA Mark A1 executed by Smt. Gurvinder Kaur in favour of his father and A5 Sarabjit Singh. Smt. Gursharan Kaur W/o Sh. Gurcharan Singh also examined by the CBI as PW30 who also corroborated the testimony of PW3 Sh. Amarjeet Singh while deposing that as per her knowledge, her husband jointly purchased the plot along with A5 Sarabjit Singh but lateron sold it out to A5 Sarabjit Singh. A5 Sarabjit Singh has also not disputed his ownership of entire plot.
33.So far as Plot No. B322 is concerned, PW17 Sh. Harender Singh was the witness who proved the ownership of Plot No. B322 in the name of his wife Smt. Neeraj Maan while deposing before the court that he purchased the same from Sh. Suresh Kumar Gera in the name of his wife Smt. Neeraj Maan vide documents GPA, Agreement to Sell, Affidavit, Will and Possession Letter all dated 10.11.2006 marked as Mark P17/1 to Mark P17/5. Owner Smt. CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 24 of 81 Neeraj Maan was also examined by the CBI as PW19 who corroborated the testimony of her husband PW17 Sh. Harender Singh and deposed that vide documents previously marked as Mark P17/1 to P17/5, she had purchased the plot. Documents previously marked as Mark P17/1 to P17/5 have been exhibited as Ex. PW19/A to Ex.PW19/E in the testimony of this witness Smt. Neeraj Maan.
34.By examining the aforesaid witnesses, the CBI has proved the ownership of Plot No. A360 i.e. 200 sq. yds. area in the name of A3 Jasbeer Singh Deshwal and 160 sq. yds. area in the joint names of A3 Jasbeer Singh Deshwal and Sh. Nagendra Singh, the ownership of Plot No. B60 in the name of A5 Sarabjit Singh and the ownership of Plot No. B322 in the name of Smt. Neeraj Maan, all the aforesaid three plots fall in Ward No. 174, Chhattarpur Extension, Delhi. The said properties fall in Khasra Nos. 821, 828 and 815/1 in Village Chhatarpur, Tehsil Mehrauli, New Delhi have been proved on record by PW26 Samir Sharma, Tehsildar, Hauz Khas, New Delhi vide documents exhibited as Ex. PW26/B (Colly). Even otherwise the ownerships of the aforesaid plots is not under dispute.
35.Ld. counsels for the accused persons argued that the aforesaid plots were in agricultural land which falls within the jurisdiction of the Revenue Department and thus, the MCD has no jurisdiction. They further argued that the present is a case of violation of MCD Act CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 25 of 81 and its byelaws concerning unauthorized constructions. In this regard, they have heavily relied upon judgment dated 22.11.2013 passed by the Hon'ble High Court of Delhi titled as A.K. Ganju Vs. CBI 2013 SCC Online Del 4686. They further argued that in the said judgment, the Hon'ble High Court of Delhi has also held that CBI is not competent to investigate the cases involving unauthorized constructions in Delhi and as such Hon'ble High Court of Delhi had quashed proceedings of the said case but in the case in hand, the CBI has exceeded the jurisdiction by taking up this case and filing the charge sheet.
36.Firstly, the court shall deal with the arguments of the Learned counsels for the accused persons whether it was the Revenue Department or the MCD to take action qua unauthorized constructions on the aforesaid plots.
37.In this regard, the cross examinations of PW1 Sh. K.S. Mehra (Commissioner MCD), PW13 Sh. Mohan Lal (Patwari) and PW 26 Sh. Samir Sharma (Tehsildar) are relevant. The cross examination on behalf of A1 Anil Kumar (AE) of the higher authority of MCD viz Commissioner Sh. K.S. Mehra (PW1) clearly reflects that the jurisdiction of MCD is extended to the entire area of NCT of Delhi including the villages and the rural areas of Delhi except the areas under NDMC and Delhi Cantonment Board. The cross examination of this witness further reflects that he has stated about the jurisdiction of MCD because CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 26 of 81 being the Commissioner of MCD, he was supposed to know the jurisdiction. This witness has denied the question put to him on behalf of A1 Anil Kumar (AE) in the form of suggestion that the constructions in question pertaining to this case does not fall within the jurisdiction of MCD. Similarly, the cross examination of PW13 Sh. Mohan Lal (Patwari) reflects that in case of any unauthorized activity in the Chhattarpur Extension area then to take care of the same, the concerned agencies are of MCD and police. Similarly, it has come in the cross examination of PW26 Sh. Samir Sharma, the then Tehsildar, Hauz Khas, New Delhi that in case of raising of unauthorized construction on agriculture land, it is for the MCD and Delhi Police to take appropriate action. During entire cross examinations, the accused persons have failed to impeach the credibility of the testimonies of these witnesses in this regard inasmuch as nothing material could be elicited from the mouth of these witnesses to the effect that it was the Revenue Department who has the jurisdiction and not the MCD to take action with respect to the unauthorized constructions pertaining to the present case. Even otherwise, if the Revenue Department has the jurisdiction to take action qua unauthorized construction on the aforesaid plots, the accused persons, in order to substantiate their defence, ought to have examined official witnesses from the Revenue Department who could have proved on record with documentary evidence that it is the Revenue Department and not CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 27 of 81 the MCD to take action qua unauthorized construction on the aforesaid plots but for the reasons best known to the accused persons, no official witness from the Revenue Department has been examined by the accused persons to substantiate their defence.
38.Moreover, A1 Anil Kumar (AE) had preferred Crl. M.C. 3973/2011 & Crl. M.A. 18337/2021 before the Hon'ble High Court of Delhi praying for quashing of present First Information Report dated 10.06.2009 bearing number RC 2(A)/2009/CBI/ACUVI/New Delhi, subsequent chargesheet filed in pursuance thereof, order on charge and all the proceedings arising out of it which was dismissed by the Hon'ble High Court of Delhi vide judgment dated 22.12.2021. Before the Hon'ble High Court of Delhi also, while heavily placing reliance upon the judgment titled as A.K. Ganju Vs. CBI (Supra), the one of the plea of A1 Anil Kumar (AE) was that the land on which the alleged illegal construction was being carried on, was under the jurisdiction of the Revenue Department and thus, the MCD has no jurisdiction over the said land but the said plea was dismissed by the Hon'ble High Court of Delhi while observing as under: "45...........After having gone through the ratio of the judgment, and analyzing the case at hand, it is essential to distinguish the aforementioned judgment for the reasons that firstly, the facts of the case are not similar to the one at hand; secondly, the criminal proceedings in the instant case arise out of the directions of this Court in Common Cause CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 28 of 81 V. Union of India (Supra) qua illegal and unauthorized construction as contrasted to the facts of A.K. Ganju case; and thirdly, in the instant case, the MCD has itself initiated criminal proceedings by way of lodging of FIR details of which have been mentioned earlier as well as the sanction for prosecuting the public servants in question been granted by the superior officer of the petitioner upon his satisfaction.
46. Upon a perusal of the contentions raised as well as the record, specificallythe chargesheet, order on charge, and further in the light of the recoveries made during the investigation, this Court neither finds any force in the arguments made by the learned counsel for petitioner nor finds any apparent error in the finding of the Court below, since a prima facie case is made out against the accused. This court is also of the opinion in view of the evidence on record that the possibility of offence under the said sections cannot be ruled out................"
39.Thus, the issue of the aforesaid plots whether fall under the jurisdiction of the Revenue Department or the MCD has already been decided by the Hon'ble High Court of Delhi vide judgment dated 22.12.2021. The said judgment was challenged by A1 Anil Kumar (AE) before the Hon'ble Supreme Court of India vide petition(s) for Special Leave to Appeal (Crl.) No(s). 1183/2022 which was dismissed by the Hon'ble Supreme Court of India vide order dated 18.02.2022. Since this issue has already been decided by the Superior Courts, the accused persons have no right to agitate this issue again before this court and thus, there is no force in the arguments of the Learned Counsels for the accused persons that the aforesaid plots do not fall within the jurisdiction of MCD.
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 29 of 8140.Now coming to the second arguments of the Ld. Counsels for the accused persons that the CBI has no jurisdiction to investigate the present matter.
41.Section 2 of DSPE Act talks about constitution and powers of Special Police Establishment. As per Sec. 2 (2) of the said Act members of said police establishment shall have the jurisdiction throughout any Union Territory in relation to investigation of offences and arrest of persons concerned with those offences, all the powers, duties privileges and liabilities which police officers of that Union Territory possess.
42.Section 3 of the DSPE Act says that Central Government by notification in the official gazette specified the offences or classes of offences which are to be investigated by DSPE. According to the notification issued, offences following under Prevention of Corruption Act can be investigated by member of DSPE.
43.As per Section 5 of DSPE Act, Central Government can extend to any area (which is a state and not Union Territory) powers and jurisdiction of members of DSPE for investigation of offences.
44.As per Section 6 of the DSPE Act, nothing contained in Section 5 shall confer jurisdiction and powers over members of DSPE to act in any state, without consent of the State Government. So prior consent of State government is a must before Central Government can issue notification U/s 5 of DSPE Act.
45.In the present case, there is no need for consent of the State CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 30 of 81 Government as far as Delhi is concerned because Delhi is a Union Territory and is being governed by the Central Government. CBI is also under supervision and control of Central Government. The offence alleged against the accused persons was cognizable and CBI could have proceeded against the accused persons in a normal course of business and there was no need for obtaining consent from any source. There was no need for obtaining sanction under Section 6 of DSPE Act for the above reasons.
46.This Court has gone through the judgment of A.K. Ganju (Supra). The judgment in the said case is a fact based judgment. The Hon'ble High Court of Delhi in the said case found that there is no evidence to support the prosecution case under Prevention of Corruption Act, 1988 and rest of the offences are for the violation of MCD Act which have not been notified to the CBI for investigation under Section 3 of the Prevention of Corruption Act, 1988 and as such the charge sheet was quashed. In the said case, the Hon'ble High Court of Delhi has made the observations in the light of the set of the facts of the said case only and those set of facts are different from the set of the facts involved in the present case inasmuch as in the present case, there were direct allegations against the accused persons for commission of offence under Section 13 of the Prevention of Corruption Act, 1988.
47.Even otherwise, in view of the observations made by the Hon'ble High Court of Delhi in judgment dated 22.12.2021 passed in Crl.
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 31 of 81M.C. 3973/2011 & Crl. M.A. 18337/2021 in the present case and the discussions made above, the judgment of A.K. Ganju (Supra) could not be of any help to the case of the accused persons as it does not bar the CBI in the matter of unauthorized construction if there is evidence to support the charge under the Prevention of Corruption Act, 1988. Hence, the judgment of A.K. Ganju (Supra) does not apply to the facts of the present case and thus, the court is of the view that the CBI had not exceeded its jurisdiction by taking up this case and filing the charge sheet.
48.Needless to say that the present case was registered not only for the offence punishable under Indian Penal Code but also for the offence punishable under the Prevention of Corruption Act, 1988 which can only be investigated by the CBI. Hence, irrespective of the fact that no doubt in Common Cause Vs. Union of India (Supra) no specific directions were issued by the Hon'ble High Court of Delhi to any investigating agency much less to the CBI to investigate the cases pertaining to unauthorized constructions, however, once the allegations against A1 Anil Kumar (AE) and A 2 Surendra Kumar (JE) are also for the commission of offence punishable under the Prevention of Corruption Act, 1988, the court is of the opinion that it is only the CBI who has jurisdiction to investigate the present case and hence there is no force in the arguments of the Ld. Counsels for the accused persons.
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 32 of 8149.In view of the aforesaid discussion, the court is of the opinion that the CBI had the jurisdiction to investigate the present case.
50.Learned Public Prosecutor for the CBI argued that by documentary evidence and the deposition of the prosecution witnesses, the prosecution has been able to prove its case against the accused persons. He further argued that it was the sole responsibility of A 1 Anil Kumar (AE) and A2 Surendra Kumar (JE) to check and take action with respect to unauthorized constructions on the aforesaid properties but they have failed to discharge their duties and infact, A2 Surendra Kumar (JE) submitted false certificates wherein he did not mention that unauthorized constructions were there on the aforesaid properties which resulted in wrongful gain to A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) by corrupt and illegal means of taking bribe and undue favour to the remaining accused persons viz owners/builders and other owners. On these premise, he argued that the prosecution has been successful in proving its case beyond reasonable doubts and prayed for the conviction of the accused persons as per the charges framed against them.
51.On the other hand, Learned counsels for the accused persons argued that on the basis of evidence on record, the charge framed against the accused persons is not substantiated by the prosecution even by the degree of preponderance of probability though the prosecution was required to prove its case beyond reasonable CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 33 of 81 doubt. They argued that all the star witnesses of the prosecution have not supported the case of the prosecution on all material particulars as they turned hostile when entered in the witness box before the court and hence the accused persons cannot be held guilty of committing any offence much less the offences for which they have been charged with. On these premise, they prayed that the accused persons be acquitted in the present case.
52.All the accused persons in the present case have been charged for the commission of offence of criminal conspiracy punishable under Section 120B of IPC r/w Section 13(2) r/w Section 13(1) (d) of the Prevention of Corruption Act, 1988 on the allegations that in or around between December 2008 to 11.06.2009, all the accused persons agreed to do or caused to be done illegal acts by illegal means to carry out unauthorized constructions at Plot No. A360 by A3 Jasbeer Singh Deshwal, Plot No. B60 owned by A5 Sarabjit Singh and under the supervision of A4 Pavitar Singh and Plot No. 322 owned by Mrs Neeraj Maan and under the contractor ship of A6 Washim Khan all fall in Ward No. 174, Chhattarpur Extension, Delhi with the help and in conspiracy with A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) who by accepting bribe and corrupt or illegal means and/or by abusing their official position as such 'Public Servants' obtained pecuniary advantage for themselves and other persons and conducted misconduct.
53.To constitute a conspiracy, meeting of minds of two or more CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 34 of 81 persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied. Even Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the coconspirators.
54.The Hon'ble Supreme Court of India in a case titled as K.R. Purushothaman Vs. State of Kerala, 2005 (4) Crimes 191 (SC) has held that: "To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 35 of 81 was primary condition and mere knowledge, even discussion, of plan by an accused would not perse constitute conspiracy. It was also held that although, the agreement among the conspirators can be inferred by necessary implication, the inference can only be drawn on the parameters in the manner of proved facts, in the nature of circumstantial evidence and whatever be the incriminating circumstance, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn.
55.Firstly the court shall deal with property No. A360. This property is having two portions i.e. one portion of 200 sq. yds. is owned by A3 Jasbeer Singh Deshwal and the second portion of 160 sq. yds. is jointly owned by A3 Jasbeer Singh Deshwal and Sh. Nagendra. To prove the allegations that there was criminal conspiracy between contractor A3 Jasbeer Singh Deshwal and A1 Anil Kumar (AE) as well as A2 Surendra Kumar (JE) and that after taking bribe of Rs. One Lac per floor from A3 Jasbeer Singh Deshwal, A1 Anil Kumar and A2 Surendra Kumar permitted unauthorized construction on plot No. A360, the CBI has examined coowner Sh. Nagendra Singh before the court as PW
16. However, in his entire deposition before the court, this witness nowhere deposed that any unauthorized construction was carried out by A3 Jasbeer Singh Deshwal on property No. A360 during the relevant period from December, 2008 to June, 2009 or that A3 Jasbeer Singh Deshwal ever gratified A1 Anil Kumar and A2 CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 36 of 81 Surendra Kumar for permitting unauthorized construction on the aforesaid property much less, A3 Jasbeer Singh Deshwal had paid in his presence, the bribe amount of Rs. One Lac to A1 Anil Kumar and A2 Surendra Kumar for permitting alleged unauthorized construction on 3rd floor of the said property. Even the fact that A3 Jasbeer Singh Deshwal was the builder who allegedly constructed property No. A360, has also not been proved on record by the CBI inasmuch as it has been categorically admitted by the Investigating Officer PW41 Rajpal Singh during cross examination that he did not investigate the matter nor procure any document to reflect or prove that A3 Jasbeer Singh Deshwal was the builder of the site in question.
56.This witness was declared hostile as he resiled from his previous statement and was cross examined on behalf of Learned Public Prosecutor for the CBI. However, despite his lengthly cross examination on behalf of Learned Public Prosecutor for the CBI, nothing material could be elicited from the mouth of this witness which could support the case of the CBI. This witness categorically deposed that he did not make any statement under Section 161 Cr.P.C. dated 05.05.2010 marked as Mark P16/1 to the CBI. This witness testified before the court that he did not know A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) of MCD and also did not know how much money A3 Jasbeer Singh Deshwal had given to these MCD officials. This witness categorically denied the CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 37 of 81 suggestion of Learned Public Prosecutor for the CBI that that he had stated to the Investigating Officer that one day he along with his Jija Sh. Krishan Choudhary went to site of Plot No. A360 when construction of 3rd floor was in progress and there A3 Jasbeer Singh Deshwal had given Rs. One Lac as gratification for unauthorized construction of 3rd floor on said plot to A1 Anil Kumar (AE) and A2 Surender Kumar (JE), officials of MCD.
57.Hence, it is apparent from the deposition of this witness that nothing incriminating has come on record either against A3 Jasbeer Singh Deshwal or against A1 Anil Kumar and A2 Surendra Kumar to the effect that all of them ever conspired with each other or that A1 Anil Kumar and A2 Surendra Kumar have ever received any amount as bribe much less the amount of Rs. One Lac from A3 Jasbeer Singh Deshwal for permitting alleged unauthorized construction on Plot No. A360.
58.It is worth mentioning that the alleged bribe amount of Rs. One Lac was also alleged to have been paid in the presence of one Sh. Krishan Choudhary, Jija of PW16 Nagendra Singh which is apparent from his statement under Section 161 Cr.P.C. and deposition before the court but said Sh. Krishan Choudhary, who was a material witness, has neither been cited as prosecution witness nor produced nor examined by the CBI before the court. The evidence of this witness could have facilitated the court in CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 38 of 81 adjudicating the matter. It is not the case of the CBI that the said person was not traceable or could not be find out. Though his statement under Section 161 Cr.P.C. was recorded by the CBI during investigation but there is no explanation put forth by the CBI why Sh. Krishan Choudhary has not been cited as prosecution witness in the present case. By not citing, producing and examining the said witness, the CBI has left out some very material evidence which may have been of some help to the CBI in this case against the accused persons. Even despite the fact that PW16 Nagendra Singh did not support the case of the CBI on material particulars, no efforts were made by the CBI to examine or produce other independent witness Sh. Krishan Choudhary before the court to prove that A1 Anil Kumar and A2 Surendra Kumar were gratified for Rs. One Lac by A3 Jasbeer Singh Deshwal for permitting alleged unauthorized construction on Plot No. A360.
59.The CBI has examined Sh. Devender Kumar Sharma as PW9 to prove that unauthorized construction on Plot No. A360 was carried out by A2 Jasbeer Singh Deshwal in the years 20082009 and A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) used to visit Plot No. A360 and have interaction with A3 Jasbeer Singh Deshwal. However, when this witness testified before the court as PW9, he also did not support the case of the prosecution and deposed that he did not remember the plot number of A3 Jasbeer Singh Deshwal where alleged construction was already carried out CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 39 of 81 when the search was conducted by the CBI in a plot in the year 2009 and that he did not know whether any MCD official much less A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) had been visited at the plot of A3 Jasbeer Singh Deshwal. He was declared hostile and was cross examined on behalf of the Ld. Public Prosecutor for the CBI. In his cross examination by the Ld. Public Prosecutor for the CBI, this witness though admitted that his statement Ex. PW9/X was recorded by the CBI but categorically denied that the owner of Plot No. A360 was A3 Jasbeer Singh Deshal or that A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) used to visit at the plot of A3 Jasbeer Singh Deshwal. Thus, from the deposition of this witness, nothing cannot be said or even infer that the plot where the alleged unauthorized construction was carried out, was plot No. A360.
60.The CBI has examined another witness PW7 Sh. Kiran Pal to prove that A2 Jasbeer Singh Deshwal started unauthorized construction on Plot No. A360 in December 2008. The deposition of this witness reflects that fivesix years ago Jasbeer Singh carried out some construction over his plot of about 300350 sq. yds. but he nowhere deposed that the number of the said plot was A360 which ought to have been deposed by him when he was fully aware that the house numbers in the area of Chhattarpur Extension, New Delhi have not been allotted by the MCD/NDMC but the numbers have been given to the houses according to plot/Khasra number CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 40 of 81 which is apparent from his deposition before the court. Even this witness testified before the court that he did not have any knowledge whether plot No. 360 is near to his plot No. 201 and further testified that it was told to him by the locality person that Plot No. A360 belonged to A3 Jasbeer Singh Deshwal. From the deposition of this witness, it has not been proved on record that it was Plot No. A360 where A3 Jasbeer Singh Deshwal allegedly started carrying out unauthorized construction about 56 years ago much less in December, 2008.
61.Secondly, as regards property No. B60, in order to prove the allegations that there was criminal conspiracy between A4 Pavitar Singh, A5 Sarabjit Singh and A1 Anil Kumar (AE) as well as A2 Surendra Kumar (JE) and that after taking bribe of Rs. One Lac from A5 Sarabjit Singh, A1 Anil Kumar and A2 Surendra Kumar permitted unauthorized construction on plot No. B60 from January 2009 to June 2009, the CBI has examined Dr. Kirpal Singh as PW39. The examinationinchief of this witness before the court clearly reflects that this witness did not know who was the owner of the aforesaid property and who was raising alleged unauthorized construction thereupon as well as who was the contractor. Though he deposed that as fas as he remember, four or five years ago the construction commenced on Plot No. B60 but he nowhere specified that the same was carried out from January, 2009 to June, 2009. His examinationinchief further reflects that CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 41 of 81 he never noticed the presence of any JE or AE or any other officer of the MCD at the aforesaid property and also never heard any talk of any MCD officers there with owner/contractor as he never stopped or sit there.
62.This witness partly resiled from his previous statement and hence, he was cross examined by Learned Public Prosecutor for the CBI. Even despite his lengthly crossexamination by Learned Public Prosecutor for the CBI, this witness did not support the case of the CBI either to the effect that any construction was carried out by A 5 Sarabjit Singh on Plot No. B60 during the period from January, 2009 to June, 2009 or any bribe amount was given by A5 Sarabjit Singh to any MCD official for permitting unauthorized construction on Plot No. B60. This witness categorically deposed that no statement under Section 161 Cr.P.C. Ex. PW39/PA, so read over to him prior to his deposition, was given by him to the CBI. His further crossexamination on behalf of the Learned Public Prosecutor for the CBI also reflects that in his presence no bribe amount of Rs. One Lac was handed over by A4 Pavitar Singh to A5 Sarabjit Singh who subsequently allegedly paid the same to A 1 Anil Kumar (AE) and A2 Surendra Kumar (JE) in order to save unauthorized construction in the aforesaid property as settled with respect to second floor.
63.Sh. Raj Kumar Thakur was the tenant residing at Plot No.B61, CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 42 of 81 was examined by the CBI as PW33 to prove criminal conspiracy between A1 Anil Kumar (AE), A2 Surendra Kumar (JE), A4 Pavitar Singh and A5 Sarabjit Singh. However, when this witness entered in the witness box, he deposed that he did not know when construction was done on the said space which was to the right side of Plot No. B61. He further deposed that when he was residing in Plot No.B61, he was not knowing any person namely Sarabjit Singh and Pavitar Singh, A5 and A4 in the present case. This witness was declared hostile by the Ld. Public Prosecutor for the CBI and was cross examined. Even in his cross examination by the Ld. Public Prosecutor for the CBI, this witness showed his ignorance qua the fact of coming of the CBI team in his neighbourhood and stated that he did not remember whether he was ever inquired by the CBI Officer or his statement was recorded and categorically deposed that he had not given any statement under Section 161 Cr.P.C. dated 08.02.2010 Mark P33/1 to the Investigating Officer. Nowhere in his entire deposition before the court this witness testified that construction on Plot No. B60 was done by A4 Pavitar Singh and A5 Sarabjit Singh or that both of them had shut the mouth of A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) by giving them bribe amount of Rs. One Lac per floor.
64.From the testimonies of PW39 Dr. Kirpal Singh and PW33 Sh. Raj Kumar Thakur, it is clear that nothing incriminating has come CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 43 of 81 out from the mouth of these witnesses that A1 Anil Kumar (AE) and A2 Surendra Kumar (JE), A4 Pavitar Singh and A5 Sarabjit Singh ever conspired with each other or that any bribe amount, worth the name, was received by A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) from A5 Sarabjit Singh for permitting alleged unauthorized construction on Plot No. B60.
65.The prosecution has examined Dr. Sudeep Jain as PW8 however except that the construction was started in Plot No. B60 in or around January 2009 which continued for about six months, this witness did not support the case of the prosecution on other material facts inasmuch as he categorically deposed that he did not notice the visit of any Junior Engineer or Executive Engineer or any other official of MCD in Plot No. B60. The testimony of this witness shows that even when he was cross examined by the Ld. Public Prosecutor for the CBI after declaring him hostile, he categorically deposed that he never stated to the CBI that (JE) A2 Surendra Kumar and (AE) A1 Anil Kumar used to visit in their colony from time to time or that he ever saw them while visiting Plot No. B60 and even did not depose that he has given any such statement under Section 161 Cr.P.C. Ex. PW8/X1 during investigation. In his deposition before the court, this witness made improvement in his version while deposing that A4 Pavitar Singh was the person who was carrying out unauthorized construction on Plot No. B60 and that he requested A4 Pavitar Singh not to CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 44 of 81 operate the mixture machine just in front of his house and further one of the labour told him that Sarabjit Singh is the owner of the said plot and he contracted A5 Sarabjit Singh on phone to instruct the shifting the mixture machine which was shifted however, no such facts were mentioned by him in his statement under Section 161 Cr.P.C. Ex. PW8/X1 recorded by the Investigating Officer during investigation. During cross examination on behalf of A4 Pavitar Singh, this witness categorically deposed that he was not aware whether facts told by him to the CBI, were reduced into writing or not and when statement under Section Ex. PW8/X1 was shown to this witness, he categorically deposed that he has no knowledge of such statement having been recorded. His cross examination further shows that this witness was not knowing who was the owner or contractor of Plot No. B60 and it was a labour who told him that the construction was being looked after by A4 Pavitar Singh and on the basis of the same, he had deposed so. From the deposition of this witness, it is clear that he has not made any incriminating statement qua conspiracy between A1 Anil Kumar (AE), A2 Surendra Kumar (JE), A4 Pavitar Singh and A 5 Sarabjit Singh. Also in view of the improvement made by this witness in his deposition before the court, no much credence can be given to the testimony of this witness.
66.Witness Raj Kumar Sharma when examined before the court as PW37 deposed that his memory is weak and he tends to forget. He CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 45 of 81 further deposed that he is not able to recollect as to exactly when construction on his neighbouring plot No. B60 started and perhaps started after one or one and half year after 1998. Perusal of the statement under Section 161 Cr.P.C. Ex. PW37/DA shows that even in the said statement also, though this witness has stated that construction on his neighbouring plot was commenced in January 2009 onwards but he nowhere stated that the number of the said neighbouring plot was Plot No. B60. Thus, the testimony of this witness is also of no help to the case of the CBI.
67.So far as A4 Pavitar Singh is concerned, it is pertinent to mention that the only allegations against him are that the unauthorized construction on Plot No. B60 was carried out under his supervision being close relative/friend of A5 Sarabjit Singh who was actively involved in unauthorized construction in the area and he handed over an amount of Rs. One Lac to A5 Sarabjit Singh who subsequently allegedly paid the same as bribe money to A1 Anil Kumar and A2 Surendra Kumar. Except that there is no allegation against A4 Pavitar Singh. PW36 Sh. Tulsi Dass though deposed that perhaps Pavitar Singh was the Sikh person who was found at the place of unauthorized construction but he nowhere alleged that A4 Pavitra Singh was the builder of the property allegedly videographed in his presence and categorically deposed during his cross examination on behalf of A4 Pavitra Singh that he did not know who was the owner or builder of the property CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 46 of 81 videographed in his presence. The court failed to understand why PW4 Pavitar Singh has been made accused in the present case once the CBI has already made owner A5 Sarabjit Singh as accused in the present case. The cross examination of Investigating Officer PW41 Raj Pal Singh reflects that he did not investigate and procure any document to reflect or prove PW4 Pavitar Singh to be builder of the site in question. The further cross examination of the Investigating Officer reflects that even after refreshing his memory and after having seen the documents, the Investigating Officer stated that he did not collect any document during investigation which could depict A4 Pavitar Singh to be builder of the site in question. Even otherwise, it is apparent from the searchcuminspection memo Ex. PW36/A prepared by Inspector D.V. Tripathi that A4 Pavitar Singh was supervising construction of building over this plot on the personal request of A5 Sarabjit Singh and he did not pay any kickback to anyone for facilitating him for construction of the building. Thus, mere allegations that unauthorized construction on Plot No. B60 was allegedly carried out under the supervision of A4 Pavitar Singh being close relative/friend of A5 Sarabjit Singh and that he allegedly handed over an amount of Rs. One Lac to A5 Sarabjit Singh which has not been proved on record by the CBI, do not ipso facto, by any stretch of imagination, prove that he was involved in the alleged offence of criminal conspiracy.
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 47 of 8168.As far as property No. B322 is concerned, in order to prove the allegations that there was criminal conspiracy between contractor A6 Washim Khan and A1 Anil Kumar (AE) as well as A2 Surendra Kumar (JE) and that after taking bribe of Rs. One Lac from A6 Washim Khan, A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) permitted unauthorized construction on plot No. B 322, the prosecution has examined owner namely Smt. Neeraj Maan and her husband namely Sh. Harender Singh as PW19 and PW17 respectively. However, both the witnesses, when entered in the witness box before the court, did not support the case of the prosecution on all material particulars inasmuch as nothing was revealed by them during their evidence whether they had engaged A6 Washim Khan as builder/contractor to construct their property or that any bribe amount much less the bribe amount of Rs. One Lac was exchanged or handed over by A6 Washim Khan to A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) in their presence. They even did not identify A6 Washim Khan before the court.
69.Since both the aforesaid witnesses resiled from their earlier statements, they were declared hostile by the Learned Senior Public Prosecutor for the CBI and were cross examined at length. Even on leading questions put to them by the Learned Senior Public Prosecutor for the CBI, both the witnesses did not support the case of the CBI and denied all the suggestions put to them by the Learned Senior Public Prosecutor for the CBI and did not make CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 48 of 81 any incriminating statement against the aforesaid accused persons. Moreover, when PW17 Sh. Harender Singh and PW19 Smt. Neeraj were confronted by Learned Senior Public Prosecutor for the CBI with their respective statement under Section 161 Cr.P.C. Ex. PW17/PA and Ex. PW19/PA, PW17 Sh. Harender Singh categorically deposed that he had not given any such statement to the Investigating Officer whereas PW19 Smt. Neeraj Maan could not remember whether she had made any such statement to the IO but categorically deposed that she had not told to the Investigating Officer, the facts as mentioned in her statement Ex. PW19/PA. Infact, the deposition of PW17 Sh. Harender Singh reflects that he of his own had constructed three floors on the aforesaid plot in the year 20062007 from a mason who was native of Bihar which also finds support from the deposition of his wife PW19 Mrs Neeraj Maan. Even there is nothing on record to prove that A6 Washim Khan was the builder/contractor who constructed Plot No. B322 in so far as there is no investigation carried out by the Investigating Officer PW41 Rajpal Singh nor any document was procured by him during investigation to reflect or prove that A6 Washim Khan was the builder who constructed Plot No. B322 and this fact has been admitted by the Investigating Officer during his cross examination.
70.From the depositions of PW17 Sh. Harender Singh and PW19 Mrs Neeraj Maan, it is evident that nothing incriminating has come CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 49 of 81 on record that there were elements of criminal conspiracy between A1 Anil Kumar (AE), A2 Surendra Kumar (JE) and A6 Washim Khan or that any amount much less bribe amount of Rs. One Lac was paid in their presence by A6 Washim Khan to A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) for permitting alleged unauthorized construction on Plot No. B322.
71.Sh. Balindra Kumar Singh @ B.K. Singh was residing in Plot No. B320 who as per the case of the CBI, had stated that construction on his neighbouring plot B322 was going on from January, 2009 to June, 2009 but when he was examined before the court as PW4, he did not support the case of the CBI. It is apparent from the deposition of this witness that he was not confirmed whether any construction was carried out in Plot No. 322 much less any unauthorized construction on this plot especially from January, 2009 to June, 2009. In his cross examination by the Ld. Public Prosecutor for the CBI, he categorically deposed that he had not given any statement under Section 161 Cr.P.C. to the CBI.
72.The deposition of other neighbour namely PW5 Sh. Bhawani Deen of Plot No. B322 who was residing at Plot No. B314, though reflects that when they shifted to Plot No. B314 in April, 2009, the construction was in progress at Plot No. B322 but this witness categorically deposed that he did not know who was raising construction at the said plot or that who was the owner of the said plot B322 and further deposed in his cross examination CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 50 of 81 that his statement under Section 161 Cr.P.C. was not recorded by the CBI.
73.Another neighbour of Plot No. B322 Sh. Anil Sharma @ Rahul Sharma who was residing at Plot No. B316, was examined by the CBI before the court as PW38. This witness also did not support the case of the CBI. He testified before the court that his memory is weak and he is under treatment as he is suffering from depression for the last four or five years. He further testified that he did not know any persons namely Washim Khan (A6), Surendra Kumar (A2) and Anil Kumar (A1). He further testified that he is disturbed from his own life and did not know who all were involved in the construction on Plot No.B322. When this witness was cross examined by Ld. Public Prosecutor for the CBI after declaring him hostile, he categorically deposed that he did not give any statement under Section 161 Cr.P.C. marked as Mark P38/1 dated 08.02.2010 to the CBI. Thus, nothing has come in the testimony of this witness to the effect that he has witnessed unauthorized construction on Plot No. B322 during the period from January, 2009 to June, 2009 or that he had seen the instances of visit of A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) in his colony or that A6 Washim Khan had face to face interaction with A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) during the said period.
74.Sh. Hari Om building material supplier in the name and style of CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 51 of 81 M/s Hari Om Building Material Suppliers who allegedly supplied building material to A6 Washim Khan vide bills Ex. PW10/A to Ex. PW10/D for construction of Plot No. B322, when examined before the court as PW10 also did not support the case of the prosecution. He categorically deposed that the said bills have not been issued in his handwriting as the bills are filled in English and he did not know English. He further testified that the bills might have been issued by his son Sh. Sunil Kumar or my Munshi Sh. Rajesh but he was not able to identify the handwriting on the said bills. Even when this witness cross examined by the Ld. Public Prosecutor for the CBI after declaring him hostile, he categorically deposed that he did not know any person namely Washim Khan (A6) or that Washim Khan (A6) had ever contacted him for purchase of building material from his shop and further deposed that he did not state to the Investigating Officer in his statement under Section 161 Cr.P.C. Ex. PW10/X that Washim Khan (A6), as a customer, came to his shop to purchase building material in February, 2009 and told that Plot No. B322 belonged to Mrs Neeraj Maan and he would construct the building on the said plot for which he required the building material.
75.I have perused bills Ex. PW10/A to Ex. PW10/D. Perusal of the same shows that though name of one Wasim Khan is written on them but on Ex. PW10/C and Ex. PW10/D, even no address has been mentioned to show that the material was supplied to Plot No. CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 52 of 81 B322. No doubt on Ex. PW10/A and Ex. PW10/B, address B322 is mentioned but once PW10 Hari Om did not identify the handwriting on all the said bills and also did not testify that the building material so mentioned in the said bills, was supplied to A 6 Washim Khan for construction of Plot No. B322, the said bills Ex. PW10/A to Ex. PW10/D did not render any help to the case of the CBI and thus, there is nothing before the court to hold that vide bills Ex. PW10/A and Ex. PW10/B, the building material was supplied to A6 Washim Khan for construction of property no. B
322.
76.Sh. Sunny Singh who was building material supplier in the name and style of M/s Sunny Singh, was examined by the CBI as PW20 who alleged to have supplied building material to A6 Washim Khan vide two bills Ex. PW20/A and Ex. PW20/B for construction in plot No. B322. During his deposition before the court, he did not identify A6 Washim Khan before the court and categorically deposed that he did not know any Washim Khan (A6) and further deposed that the person who came to his shop asked him to give the bill in the name of Washim Khan (A6) which he so issued. Even in his cross examination by Ld. Public Prosecutor for the CBI after declaring him hostile, this witness categorically denied that he had sent the building material at Plot No. B322. Perusal of bills Ex. PW20/A and Ex. PW20/B shows that nothing has been mentioned on the said bills that the material so supplied vide said CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 53 of 81 bills, was supplied to property No. B322 and this witness had denied the suggestion that he had sent the material at B322. Thus, it has not been proved on record that any building material, much less the building material mentioned in Ex. PW20/A and Ex. PW20/B, was supplied by PW20 Sh. Sunny Singh to A6 Washim Khan for construction of Plot No. B322.
77.Besides the above witnesses, the CBI has also examined common witnesses qua all the aforesaid three properties viz common witness PW27 Sh. Gopi Chand has been examined by the CBI to prove the allegations that unauthorized constructions were carried out by A3 Jasbeer Singh Deshwal, A6 Washim Khan and A5 Sarabjit Singh on Plot No. A360, Plot No. B322 and Plot No.B 60 respectively and necessary arrangements with A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) were made by them more particularly A3 Jasbeer Singh Deshwal has paid Rs. One Lac per floor to A1 Anil Kumar and A2 Surendra Kumar. However, when this witness was examined before the court, he also did not support the case of CBI. Even when this witness was cross examined by Ld. Public Prosecutor for the CBI after declaring him hostile, he though admitted that his statement was recorded by the CBI under Section 161 Cr.P.C. but deposed he did not make any statement that A3 Jasbeer Singh Deshwal, A5 Sarabjit Singh and A6 Washim Khan were constructing buildings on Plot No. A360, Plot No.B69 and Plot No. B322 respectively or that A3 Jasbeer CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 54 of 81 Singh Deshwal had made any arrangement with A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) and paid them Rs. One Lac per floor for alleged unauthorized construction on Plot No. A360. He categorically deposed that he did not know any Jasbeer Singh, Washim Khan or Sarabjit Singh and that he has never gone to area of Chhattarpur Extension, Delhi. It is apparent from the deposition from this witness that nothing incriminating has been deposed by this witness against any of the accused persons which could advance any help to the case of the CBI.
78.Other common witness PW34 Ram Yadav when examined by the CBI before the court also did not support the case of the CBI and even when he was cross examined by the Ld. Public Prosecutor for the CBI after declaring him hostile, he did not identify any of the accused persons present in the court and further testified that he was not inquired by the CBI and also he had not given any statement under Section 161 Cr.P.C. dated 11.06.2009 Mark P34/1 to the CBI.
79.PW35 Raj Singh @ Raje working as Beldar, MCD, Delhi was another common witness examined by the CBI before the court however, when this witness partly resiled from his previous statement, he was cross examined by the Ld. Public Prosecutor for the CBI but despite the same, nothing incriminating came on record against the accused person inasmuch as this witness categorically deposed that he had not given any statement under CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 55 of 81 Section 161 Cr.P.C. dated 19.02.2010 Ex. PW35/PA to the Investigating Officer and further testified that except A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) under whom he had worked, he did not know any other accused persons present in the court. This witness denied the suggestion put to him by Ld. Public Prosecutor for the CBI that he had deposed falsely as he was hand in glove with builders A3 Jasbeer Singh Deshwal, A5 Sarabjit Singh and A6 Washim Khan in unauthorized constructions on Plot Nos. A360, B60 and B322.
80.While considering the material and evidence on record and the legal proposition above discussed, there is no evidence on the record firstly to show that there was any agreement or prior concert amongst A1 Anil Kumar, A2 Surendra Kumar, who were the public servants being Assistant Engineer and Junior Engineer respectively in South Zone of MCD, New Delhi, A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan. None of the witnesses examined by the prosecution have deposed that A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan ever met with any of the public servants namely A1 Anil Kumar (AE) and A2 Surendra Kumar (JE). Nothing is on the record showing that these public servants A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) had any common object with A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan. There must be CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 56 of 81 sequence of different circumstances, cumulatively taken together leading to the conclusion of hatching of conspiracy amongst the accused persons. Therefore, the court is of the considered opinion that the charge of criminal conspiracy punishable under Section 120B IPC r/w Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 has not been established against all the accused persons namely A1 Anil Kumar (AE), A2 Surendra Kumar (JE), A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan.
81.In the present case, videography of the aforesaid properties bearing No. A360, B60 and B322 was also alleged to have been done on 11.06.2009 at the time of inspection/raid by the CBI. The witness Constable Ved Prakash who allegedly done the videography was examined by the CBI before the court as PW31. This witness testified before the court that even if on seeing the videography on the laptop, he could not tell the number of the properties as to which was the property whose videography was done by him initially or then later and categorically deposed that he did not remember the number of the properties whose videography was done by him. The videocassette was played before the court during the deposition of this witness but this witness categorically deposed before the court that he did not know the number of the properties nor he knew the name of the owner of the properties nor he knew the name of the builders of the properties nor he knew the name of CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 57 of 81 the persons who were getting the properties constructed.
82.PW24 Sh. Sanjay Kumar alongwith his colleague Jitender Walia was the witness who was joined by the CBI in the inspection/raiding party as independent witness qua videography of the alleged unauthorized construction on property No. A360. Videocassette was played during the deposition of this witness. Though this witness deposed that when they reached at the spot, the construction was going on third floor of A360 but when this witness was cross examined, he categorically deposed that there was no writing on the property videographed to depict it as A360 and infact, the Investigating Officer and the officials of the CBI, who had gone to premises along with him, were saying the number of the said premises as A360. The testimony of this witness, in the opinion of the court, does not render any help to the case of the prosecution as this witness was also not aware about the number of the property as A360 and he had deposed about the number of the property as A360 as the Investigating Officer and the officials of the CBI were saying so.
83.As regards property No. B60, PW36 Sh. Tulsi Dass alongwith his colleague Manoj who is attendant in his office was joined by the CBI as independent witness to prove unauthorized construction in property No. B60. This witness though deposed before the court that work of construction was in progress but this witness did not remember the number of the said property and even he had no idea CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 58 of 81 as to how many floors of the said property were built up as he did not count. Even when the videocassette was played during his deposition before the court, this witness stated that the videography is qua second property but he nowhere deposed about the number of the said property much less property No. B60. Thus, from the deposition of this witness, it has not been proved on record by the CBI that the alleged videography pertains to property No. B60.
84.It is worth mentioning that the independent material witnesses namely Sh. Jitender Walia and Sh. Manoj who were joined by the CBI at the time of alleged videography of property No. A360 and property No.B60 respectively have neither been cited as prosecution witness nor produced nor examined by the CBI before the court. There is no explanation put forth by the CBI as to what was the purpose of joining the aforesaid witnesses when they were not to be cited as prosecution witness in the present case. Even despite knowing the fact that the testimonies of independent witnesses PW24 Sh. Sanjay Kumar and PW36 Sh. Tulsi Dass did not render any help to the case of the CBI, no efforts were made by the CBI to examine or produce these independent witnesses namely Sh. Jitender Walia and Sh. Manoj before the court. It is not the case of the CBI that the aforesaid independent witnesses were not traceable or could not be find out. The evidence of these witnesses could have facilitated the court in adjudicating the matter. By not citing, producing and examining the aforesaid CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 59 of 81 material independent witnesses, the CBI has left out some very material evidence which may have been of some help to the CBI in this case against the accused persons. Thus, the very purpose of joining Sh. Jitender Walia and Sh. Manoj as independent witnesses to the alleged videography of property No. A360 and property No. B60 stands defeated.
85.Qua property No. B322, PW12 Sh. M.K. Mathur and PW22 Sh. Sunder Lal were the witnesses who were joined by the CBI in the inspection/raiding party as independent witnesses with respect to the videography of the alleged unauthorized construction on property No. B322.
86.PW12 Sh. M.K. Mathur when examined before the court, categorically deposed that he did not remember the number of the site/house where the construction was going on. Though this witness stated that he had seen at the spot that building was under
construction and there was some construction at the second floor but this witness nowhere stated that the said building was constructed at Plot No. B322. He also deposed that he did not remember the name of the owner of the property and also did not know who was the builder of the site/construction and further he did not know any person in the name of Washim Khan, A6 in the present case. This witness deposed that the videography of the construction site was prepared. During the course of his deposition, CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 60 of 81 Ld. Public Prosecutor for the CBI produced and put CD of the site and certain photographs to the witness which was strongly objected to by the Learned Counsels for the accused persons but the court observed that in compact disc player/seizure memo dated 09.09.2009 D45, it has been mentioned that CD and photographs of the site were prepared to show the factual position. However, no such CD was played by the CBI during the deposition of this witness and even after seeing two photographs marked as Mark P 12/1 and P12/2, this witness did not recollect the description of the property. Though when this witness was cross examined on behalf of the Ld. Public Prosecutor for the CBI as he partly resiled, he admitted that the said photographs were of the under construction site at plot No. B322 but when this witness was cross examined on behalf of the accused persons, he deposed that number of the premises was not displayed on the properties and infact he was told by the CBI officials that they had reached at the under construction site at Plot No. B322 and on the basis of the same, he had stated so in his statement under Section 161 Cr.P.C. to the Investigating Officer.
87.Other independent witness Sh. Sunder Lal was examined by the prosecution as PW22. The deposition of PW22 Sh. Sunder Lal reflects that he had gone to B322 where construction work was in progress till third floor and the videography of the building was done. Videography cassette Ex. PW31/A was played before the CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 61 of 81 court during the deposition of this witness and this witness though deposed that the aforesaid video recording is with respect to property No. B322 but when this witness was cross examined on behalf of the accused persons, he deposed that the property number of alleged property B322 was told to him by A6 Washim Khan and because of the same, he had stated the number said number of the property in the video recording but he did not notice the number of the property written outside the said property.
88.Thus, from the depositions of PW12 Sh. M.K. Mathur and PW22 Sh. Sunder Lal, the court is of the opinion that no credence can be given to the testimonies of these witnesses in view of the fact that the CD was not played during the deposition of PW12 Sh.M.K. Mathur to prove that the same pertains to Plot No. B322 coupled with the fact that even the Plot No. B322, where videography was alleged to have been done having alleged two photographs thereof marked as Mark P12/1 and P12/2, was told to him by the officials of CBI and he was not having knowledge that the number of the said plot was Plot No. B322. Similarly, PW22 Sh. Sunder Lal did not have any knowledge that the alleged videography pertains to Plot No. B322 and he had stated the number of the property as B 322 as this number was allegedly told to him by A6 Washim Khan.
89.Moreover, from the material and the evidence on record, it is CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 62 of 81 crystal clear that the CBI has adopted a very lackadaisical and casual approach while carrying out alleged videography at the time inspection/raid in the aforesaid properties which cannot be expected from such a top investigating agency of India. The alleged videography of the aforesaid properties is under cloud. The conduct of the CBI is apparent from the record that even the videocassette was not placed on judicial record by the CBI and when on 06.05.2013 it was deposed before the court by PW31 Constable Ved Prakash, who was the videographer, that he had handed over the recorded cassette to Dy. S.P. Mr. Saini, Ld. Public Prosecutor for the CBI submitted that the aforesaid recorded cassette of videography has not been relied upon by the CBI and only the CD thereof has been relied upon. On 06.05.2013, the court thereafter, asked Investigating Officer Dy. S.P. Raj Pal Singh to tell about the whereabouts of the original videocassette, the Investigating Officer needed time to ascertain from the office record as to where it was at the present moment of time and the court directed him to verify and report in within two days about the whereabouts of the original cassette of videography. On 04.06.2013, statement of Dy. SP Raj Pal Singh was recorded by the court wherein he stated that the original video cassette has been found in an Almirah in the record room of CBI, ACUVI in CBI Headquarter, Lodhi Road, New Delhi. His statement further shows that no seizure memo or any forwarding letter had been prepared in CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 63 of 81 respect of the aforesaid original videocassette now traced. His statement further shows that when the videocassette was traced, it was in an unsealed condition. During subsequent chief examination of PW31 Constable Ved Prakash, when the said videocassette was produced before the court, the same was in unsealed condition. The videocassette, its inlay card and the cover of the cassette were exhibited as PW31/A to PW31/C respectively. It is also evident from the cross examination of PW31 Ved Prakash that even PW31/A to PW31/C were not signed by PW31 Ved Prakash and also except RC number, neither Malkhana number nor year 2009 were mentioned on PW31/A to PW31/C and even there is no signature or writing of any witness on PW31/A to PW31/C.
90.It is worthwhile to mention that the investigation in the present matter has not been up to the mark. From every act of investigating agency what the court expects is the fairness. Fairness of investigation in this case is not apparent from the face of record. It was all the more necessary for the investigating officer to observe all necessary care, caution and collect all possible material pieces of evidence to nail the arraigned accused persons for the charged offences. Of course, officers of CBI, the premier investigating agency, at the outset, cannot be said to be untrustworthy but when in a serious case of alleged misconduct by the public servants, what is expected by the court from the officers of the investigating CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 64 of 81 agency, is to collect the best possible incriminating evidence at the first instance against such suspects/accused persons to lead credence and to avoid criticism. In the present case, the investigation, as carried out by the Investigating Officer, as discussed above, shows his lackadaisical and casual approach in investigating the present matter. Also the manner in which the primary source i.e. videocassette kept by the CBI does not inspire confidence inasmuch as the same was in unsealed condition. The videocassette and the CD thereof are also not accompanied with necessary certificate as required under Section 65(b) of Indian Evidence Act. Thus, the videocassette and the CD cannot be looked into as the same do not advance any help to the case of the prosecution. Even the testimony of Investigating Officer PW41 Dy SP Sh. Raj Pal Singh shows that the videocassette was handed over to him by one IO without any forwarding letter. Moreover, even independent witnesses PW24 Sanjay Kumar and PW22 Sunder Lal have given different versions whether videocassette or CD was prepared at the spot of inspection inasmuch as witness PW24 Sanjay Kumar deposed that on 11.06.2009, a CD was prepared of videography and videocassette was not prepared and denied that on 09.09.2009, a CD of video recording was prepared from the videocassette in CBI office. Similarly PW22 Sunder Lal deposed that compact disk (CD) was prepared at the site of videography of aforesaid properties in his presence and he signed CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 65 of 81 the said CD there. The other independent witness PW36 Sh. Tulsi Dass deposed before the court that he did not know what object whether videocassette or CD was in handycam when videography was done and even he did not know when CD Ex. PW24/1 was prepared. Furthermore, even from the alleged videography it has not been proved on record that the alleged videography pertains to alleged unauthorized construction on Plot No. B322, Plot No. A 360 and Plot No. B60 as it is admitted case of the CBI that the said area falls in unauthorized colony where no plot number or house number have been given by the competent authority in the said area which is also apparent from the testimony of PW7 Sh. Kiran Pal who deposed that the house numbers in the area of Chhattarpur Extension, New Delhi have not been allotted by the MCD/NDMC and the numbers have been given to the house accordingly to plot/Khasra number coupled with the testimony of PW9 Devender Kumar Sharma who deposed that RWA or MCD or any other Civil Authority had not alloted plot number/house number in the area of Chhattarpur Extension and the people themselves had given the number of their plots which also finds support from the cross examination of PW4 Sh. Balindra Kumar Singh @ B.K. Singh who deposed that the addresses and house numbers in their locality are not symmetrical/systematical.
91.Even Inspector V. Chettair, ASP R.K. Saini and Inspector D.V. Tripathi under whom supervision the spot inspection and CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 66 of 81 videography of alleged Plot No. B322, Plot No. A360 and Plot No. B60 respectively were conducted on 11.06.2009 and also who have prepared the spot inspection memos Ex. PW12/A, Ex. PW24/A and Ex. PW36/A all dated 11.06.2009 have not been cited as prosecution witnesses and have not been examined before the court. There is no explanation put forth by the CBI in this regard. Though the spot inspection memos all dated 11.06.2009 have been exhibited by the CBI as Ex. PW12/A, Ex. PW24/A and Ex. PW36/A in the deposition of independent witnesses PW12 M.K. Mathur, PW24 Sanjay Kumar and PW36 Tulsi Dass who were joined by the CBI as independent witnesses at the time of spot inspection and videography of Plot No. B322, Plot No. A360 and Plot No. B60 but the authors of the same viz Inspector V. Chettair, ASP R.K. Saini and Inspector D.V. Tripathi have not been examined by the CBI as prosecution witnesses before the court. Even their statements were also not recorded by the Investigating Officer during investigation and this fact has been admitted by the Investigating Officer during cross examination. It is not the case of the CBI that Inspector V. Chettair, ASP R.K. Saini and Inspector D.V. Tripathi were not traceable or could not be find out. Their evidence could have facilitated the court in adjudicating the matter. By not citing, producing and examining Inspector V. Chettair, ASP R.K. Saini and Inspector D.V. Tripathi, the CBI has left out some very material evidence which may have been of some help to CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 67 of 81 the case of the CBI against the accused persons. Mere exhibition of spot inspection memos as Ex. PW12/A, Ex. PW24/A and Ex. PW36/A does not mean that the same have been proved on record. Hence, the spot inspection memos Ex. PW12/A, Ex. PW24/A and Ex. PW36/A do not stand proved on record in accordance with the Indian Evidence Act.
92.In the present case, A1 Anil Kumar and A2 Surendra Kumar being public servants viz Assistant Engineer and Junior Engineer respectively have also been charged for the commission of substantive offence punishable under Section 13(2) r/w Section 13(1) (d) of the Prevention of Corruption Act, 1988 on the allegations that in or around between December 2008 to 11.06.2009, both A1 Anil Kumar and A2 Surendra Kumar being public servants while posted as Assistant Engineer and Junior Assistant respectively in South Zone, MCD were under duty to take action against the unauthorized constructions being carried out in Plot No. A360, Plot No. B60 and Plot No. 322, Ward No. 174, Chhattarpur Extension, Delhi but both of them by corrupt or illegal means or/and by abusing official position allowed the unauthorized constructions by accepting bribe from A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan and thereby obtained pecuniary advantage for themselves or other persons and misconducted themselves.
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 68 of 8193.Before going into the evidence and the facts of the present case, it would be appropriate to precisely discuss the legal requirement for proving of the abovesaid offence of the Prevention of Corruption Act, 1988. Section 13 (1) (d) of the Act is an offence of criminal misconduct by a public servant, if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any persons any valuable thing or pecuniary advantage without any public interest. Or
(e)........"
94.A bare reading of the aforesaid provision of the Prevention of Corruption Act, 1988 would go to show that the offence contemplated therein is committed if a public servant obtains for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as public servant or without any public interest. Offence of "Criminal Misconduct" was also provided in Section 5 of the Prevention of Corruption, Act, 1947. Section 13 (1) (d) of the Prevention of Corruption Act, 1988 is though somewhat similar to the offence under Section 5 (1) (d) of the Prevention of Corruption Act, 1947.
CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 69 of 81However, there is some change in the comparable provisions under Section 13 (1) (d) of the Prevention of Corruption Act, 1988 from the provision under Section 5(1)(d) of the Prevention of Corruption Act, 1947.
95.Clause (d) of Section 5 (1) of the Prevention of Corruption Act, 1947 mandated that for constituting the offence under that clause, the accused must have used corrupt or illegal means or otherwise abused his position as public servant to obtain for himself or for any other person valuable thing or pecuniary advantage. The words "or by otherwise abusing his position as public servant" go to indicate that use of corrupt or illegal means is considered as one of the modes of abusing official position. Thus, there is only one concept involved here, namely, abusing one's official position to gain valuable thing or pecuniary advantage. Adoption of corrupt or illegal means is mentioned illustratively as one of the means of abuse of official position. Thus, the concept of use of corrupt or illegal means has inextricable nexus with abuse of official position. Abuse of official position appears to be central to the concept of misconduct and adopting corrupt or illegal means is merely one of the ways and not unrelated to abusing official position.
96.Whereas, a reading of Section 13 of the Prevention of Corruption Act, 1988 would make it amply clear that all the three wings of Clause (d) of Section 13(1) of the Prevention of Corruption Act, CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 70 of 81 1988 are independent and alternative and disjunctive for constituting the ingredients for the offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988 as it clears from the use of the word 'or' at the end of each subclause. Thus, under Section 13(1)(d)(i) of the Prevention of Corruption Act, 1988 obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under Section 13(1)(d) of the Prevention of Corruption Act, 1988. On the same reasoning "obtaining a valuable thing or pecuniary advantage merely by abusing official position"
as contemplated under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 in itself would satisfy the ingredients of Criminal Misconduct under Section 13 (1)(d) of the Prevention of Corruption Act, 1988 without any nexus with the adoption of the illegal means as contemplated under Section 13 (1)(d)(i) of the Prevention of Corruption Act, 1988.
97.So there is definite change as to the ingredients of offence of Criminal Misconduct under Section 13(1)(d) of the Prevention of Corruption Act, 1988 vis a vis Section 5(1)(d) of the Prevention of Corruption Act, 1947. As the scope of Section 13 (1) (d) of the Prevention of Corruption Act, 1988 has been widened by incorporating three different subclauses in Section 13 (1) (d) of the Prevention of Corruption Act, 1988. Legislature to my mind did this consciously to cover up those situations where a public CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 71 of 81 servant obtains pecuniary advantage by corrupt or illegal means either for himself or any other person, but still there may not be ostensible evidence of abuse of misuse of official position. In this context however, one aspect needs to be underlined that dishonest intention is the gist of the offence under Section 13 (1)(d)(i) of the Prevention of Corruption Act, 1988 which is implicit in the words used i.e. corrupt or illegal means.
98.In order to prove the aforesaid charge against A1 Anil Kumar (AE) and A2 Surendra Kumar (JE), the prosecution has examined number of witnesses viz PW16 Sh. Nagendra Singh qua Property No. A360, PW39 Dr. Kirpal Singh and PW33 Raj Kumar Thakur qua Property No. B60, PW19 Smt Neeraj Maan and her husband namely PW17 Sh. Harender Singh qua Property no. B 322 and common witness PW27 Gopi Chand qua all the aforesaid three properties, however, none of the witnesses said anything qua the giving of bribe to A1 Anil Kumar (AE) and A2 Surendra Kumar (JE). The allegations and depositions of the aforesaid witnesses qua the aforesaid properties against A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) have already been discussed above by the court in Para Nos. 55 to 58, 61 to 64, 68 to 70 and 77 of the judgment and the prosecution has failed to prove the same.
99.The charge in a criminal trial is to be proved by the prosecution by adducing sufficient and reliable positive evidence. The prosecution CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 72 of 81 has to prove the charge beyond all reasonable doubts. The term beyond all reasonable doubts is not an abstract concept and has to be examined in the light of given facts of each case.
100.Learned Public Prosecutor for the CBI argued that though the prosecution witnesses did not support the case of the CBI that any bribe amount was paid by anyone to A1 Anil Kumar (AE) and A 2 Surendra Kumar (JE) in their presence but the fact remains that A1 Anil Kumar (AE) and A2 Surendra Kumar (JE), who were duty bound to notice and take action for any unauthorized construction in their areas, permitted unauthorized constructions on Plot Nos. A360, B60 and B322 which is apparent from the documents placed on record and the deposition of the prosecution witnesses as demolition actions on the aforesaid plots were also taken by the MCD subsequently. He therefore, argued that unauthorized construction must have been permitted by A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) on the aforesaid plots which cannot be without any corrupt or illegal means and thus, the prosecution has successfully proved on record that A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) has given undue favour to the owners/builders of the aforesaid plots which clearly falls within the mischief of criminal misconduct under Section 13 (1) (d) of the Prevention of Corruption Act, 1988.
101.On the other hand, Learned Counsel for the accused persons argued that arguments of the Learned Public Prosecutor for the CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 73 of 81 CBI are based on presumption. They further argued that presumption under Section 20 of the Prevention of Corruption Act can only be in respect of offence under Section 7 and not for the offence under Section 13 (1)(d) of the Prevention of Corruption Act, 1988.
102.It is settled proposition of law that the charge under Section 13 (1) (d) of the Prevention of Corruption Act, 1988 cannot be allowed to be proved through presumption. In this regard, the court finds support from the judgments passed by the Hon'ble Apex Court in a case titled as A. Subair Vs. State of Kerala, Criminal Appeal No. 639/2004 dated 26.05.2009. In the said case, conviction under Section 7 and 13 (1)(d) read with Section 13 (2) of the Prevention Act, 1988 was set aside by the Hon'ble Supreme Court of India.
103.Thus, the court is of the opinion that presumption under Section 20 of the Prevention of Corruption Act, 1988 cannot be drawn for the offence under Section 13 (1)(d) of the Prevention of Corruption Act, 1988 as the same is applicable only for the offence under Section 7 of the Prevention of Corruption Act, 1988. Hence, the court finds force in the arguments of the Learnd Counsels for the accused persons.
104.In the instant case, the CBI has not adduced any positive evidence on the point of exchange of gifts or any other valuable consideration with A1 Anil Kumar (AE) and A2 Surendra Kumar CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 74 of 81 (JE) by the remaining accused persons namely A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan to prove the charge of criminal misconduct against them under Section 13 (1)(d) of the Prevention of Corruption Act, 1988.
105.In absence of any positive evidence of causing any benefit for themselves or for any other person which is the requirement to prove the charge under Section 13 (1) (d) of the Prevention of Corruption Act, 1988, it cannot be said that CBI has successfully proved the charge under Section 13 (1) (d) of the Prevention of Corruption Act, 1988 against A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) before this court.
106.Also no evidence has come on record to prove that A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) deliberately to benefit A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan in raising the unauthorized construction in the abovementioned three properties have misconducted themselves by abusing their official positions.
107.Perusal of register Ex. PW23/R (D39) shows that demolition actions qua unauthorized constructions on the aforesaid properties no. A360, B322 and B60 were also taken by the MCD. Perusal of the record shows that after the raid by the CBI, MCD had registered FIR against the aforesaid three properties vide FIR Ex. PW23/B, MCD FIR exhibited Ex. PW15/E and the FIR exhibited CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 75 of 81 as Ex. PW15/L. After the registration of the FIR, the MCD has also taken action against the aforesaid properties and made demolition of the same but it has not been proved on record by the CBI with cogent evidence that the aforesaid properties were unauthorizedly constructed during the period from December, 2008 to 11.06.2009.
108.The CBI has relied upon Office Order No. PSC/716/2008 dated 12.09.2008 Ex. PW29/B issued by Commissioner of MCD. As per the said Office Order directions were issued for detection of unauthorized construction at the first stage to be carried out by JE A2 Surendra Kumar and AE A1 Anil Kumar under the supervision of Executive Engineer and further JE A2 Surendra Kumar would every month issue a certificate under his signature clarifying that there is no unauthorized construction and/or encroachment on Govt./Municipal land and the said certificate should also give details regarding any unauthorized ongoing construction and/or encroachment and propose and ensure appropriate action to be taken followed by ensuring required action against unauthorized construction/encroachment within the stipulated time as per the provisions of DMC Act. In the present case, the CBI has relied upon copy of monthly certificates issued by A2 Surendra Kumar (JE) for the month of January, February, March and April, 2009 qua Ward No. 174 Marked as Mark 23/2 (Colly) in (D38). The original certificate for the month of February 2009 has been exhibited in D49 as one of the document CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 76 of 81 of Ex. PW23/M (colly) and the original certificate for the month of April 2009 has been exhibited in D50 as page 15/C of Ex. PW23/T.
109.Ld. Public Prosecutor for the CBI argued that in the aforesaid certificates submitted by A2 Surendra Kumar (JE) are false as in the said certificates A2 Surendra Kumar (JE) deliberately nowhere reported that unauthorized constructions were there in properties no. A360, B322 and B60. The court has gone through the certificates so placed on record in D38, D49 and D50. This argument of the Ld. Public Prosecutor for the CBI is not tenable for the reason that it appears to be issued by A2 Surendra Kumar (JE) in routine manner during the course of his duties inasmuch as he not only issued such certificate in routine manner qua Ward No. 174 but for properties in other Wards No. 175 and 176 as well, he has issued similar type of certificates in routine manner. Even the other Junior Engineers who have submitted certificates qua Ward No. 169, 170, 171, 173, 177, 178, 179 and 181 have also submitted the same in the same routine manner as A2 Surendra Kumar (JE) did qua their wards. No doubt A2 Surendra Kumar (JE) nowhere specifically mentioned in his certificates whether any unauthorized construction was their on properties no. A360, B322 and B60 or not which certainly amounts to negligence and dereliction of duty on his part being public servant but the same would not be sufficient to prove the charge under Section 13(1)) of the CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 77 of 81 Prevention of Corruption Act, 1988 unless there is cogent evidence on record that A2 Surendra Kumar (JE) has obtained undue benefits or bribe for the same. Hence, there is no force in the arguments of the Learned Public Prosecutor for the CBI. Even the original of the remaining certificates are not on record. During cross examination, Investigating Officer Raj Pal Singh admitted that he made efforts to seize the originals but was not able to recover them from MCD office since these could not be traced. However, there is nothing on record as to what steps were taken by the Investigating Officer to seize the same. Even no statement of any official of MCD has been recorded by the Investigating Officer during investigation in this regard and this fact has been admitted by him during cross examination that he did not record statement of any official of MCD from whom he made any inquiry or effort to recover original or regarding their nontraceability. Thus, the lackadaisical approach of the Investigating Officer in investigating the present case is apparent from the record.
110.The allegations against A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) are based on presumption that as per searchcum inspection memos Ex.24/A, Ex. PW36/A and Ex. PW12/A of Plot Nos. A360 (A28 and A29), B60 and B322 in Ward No. 174, Chhattarpur Extension, Delhi unauthorized constructions on the aforesaid properties were there which ought to have been detected and action should have been taken by JE A2 Surendra Kumar and CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 78 of 81 AE A1 Anil Kumar in terms of Office Order No. PSC/716/2008 dated 12.09.2008 Ex. PW29/B issued by Commissioner of MCD which they failed to do and according to the CBI this was so done by them to benefit A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan. The presumption is far fetched in absence of any other evidence to support the same. This piece of evidence alone will not be sufficient to prove the charge under Section 13 (2) read with Section 13 (1)(d) against A1 Anil Kumar (AE) and A2 Surendra Kumar (JE).
111.Besides the above said evidence, nothing has come on the record to show that A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) had deliberately favoured A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan. As discussed above, for the purpose of convicting any public servant for the offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988, the fact that there has been some dereliction of duty or lapse on their part, is not sufficient unless there is some more evidence showing obtaining of undue benefits or bribe by that public servant. For establishing the charge under Section 13(1) (d) of the Prevention of Corruption Act, 1988 there must be an evidence of A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) having obtained either for themselves or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means. In other words mere evidence of dereliction of duties, misuse of CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 79 of 81 official position, would not be sufficient for proving the charge.
112.In view of my aforesaid discussion, in the absence of any evidence showing receiving of any pecuniary advantage or bribe etc., such blame or aspersion against the public servants viz A1 Anil Kumar (AE) and A2 Surendra Kumar (JE), to the opinion of the court, does not establish the charge of under Section 13 (1) (d) of the Prevention of Corruption Act, 1988 for the reasons and requirement of law as discussed above and accordingly, the CBI has miserably failed to prove on record against A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) the charged offence under Section 13 (1)(d) of the Prevention of Corruption Act, 1988.
113.In view of my discussion hereinabove, it is apparent that no substantive evidence has come on the record against all the accused persons namely A1 Anil Kumar (AE), A2 Surendra Kumar (JE), A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan to prove on record that they have committed the charged offences. Thus, the court holds that the CBI has not been able to prove its case against all the accused persons namely A1 Anil Kumar (AE), A2 Surendra Kumar (JE), A3 Jasbeer Singh Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan beyond shadows of all reasonable doubts.
I accordingly, acquit all the accused persons namely A1 Anil Kumar (AE), A2 Surendra Kumar (JE), A3 Jasbeer Singh CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 80 of 81 Deshwal, A4 Pavitar Singh, A5 Sarabjit Singh and A6 Washim Khan for the charge qua commission of offence of criminal conspiracy punishable under Section 120B IPC r/w Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988.
I also accordingly, acquit A1 Anil Kumar (AE) and A2 Surendra Kumar (JE) for the substantive charge qua commission of offence punishable under Section 13(2) r/w Section 13(1) (d) of the Prevention of Corruption Act, 1988.
114.In compliance of the provisions of Section 437A Cr.P.C. and on the direction of this court, all the accused persons have furnished their respective personal bond and surety bond which have been accepted by the court.
115.Ahlmad/Judicial Assistant is directed to page and bookmark the file so as to enable digitization of the entire record.
116.File be consigned to record room after necessary compliance. (Announced in the open court today i.e. 11.07.2022) (ANURAG SAIN) Special Judge (PC Act) (CBI)11, Rouse Avenue Court Complex, Delhi CC No.385/19 CBI Vs. Anil Kumar & Anrs. Page 81 of 81